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COUNCIL REGULATION (EEC) N° 1312/85
of 23 May 1985
amending Regulation (EEC) N° 1837/80 on the common organization of the market in sheepmeat and goatmeat
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 the coincidence of the beginning of the marketing year with the beginning of the calendar year means that the prices for each marketing year can be fixed at a time when the seasonally adjusted basic price and, in most cases, the Community's average market price, are moving upwards;Whereas Regulation (EEC) N° 1837/80 (3), as last amended by Regulation (EEC) N° 871/84 (4), should be amended as a result,
HAS ADOPTED THIS REGULATION:
Article 1
Article 3 (4) of Regulation (EEC) N° 1837/80 is hereby replaced by the following:'4. Save where a Decision to the contrary is taken by the Council, acting by a qualified majority on a proposal from the Commission, the marketing year shall begin on the first Monday in January and end on the day preceding that day in the following year. This provision shall be applicable for the first time on 6 January 1986.'
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
(1) OJ N° C 67, 14. 3. 1985, p. 66 (2) OJ N° C 94, 15. 4. 1985.
(3) OJ N° L 183, 16. 7. 1980, p. 1.
(4) OJ N° L 90, 1. 4. 1984, p. 35.
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COUNCIL DECISION
of 20 September 2005
appointing three members and five alternate members of the Committee of the Regions
(2005/675/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 Italian 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 for the period from 26 January 2002 to 25 January 2006 (1).
(2)
Three members’ seats on the Committee of the Regions have become vacant following expiry of the mandates of Mr Francesco STORACE, Mr Vito d’AMBROSIO and Mr Raffaele FITTO; one alternate member’s seat on the Committee of the Regions has become vacant following the resignation of Mr Giuseppe CHIARAVALLOTI and four alternate members’ seats following expiry of the mandates of Mr Giovanni PACE, Mr Filippo BUBBICO, Mr Giandomenico BARCI and Mr Enzo GHIGO,
HAS DECIDED AS FOLLOWS:
Article 1
The following are hereby appointed to the Committee of the Regions for the remainder of the term of office still to run, namely until 25 January 2006:
(a)
as members:
Mr Piero MARRAZZO
Presidente della Regione Lazio
(President of the Region of Latium)
to replace Mr Francesco STORACE
Mr Gian Mario SPACCA
Presidente della Regione Marche
(President of the Marches Region)
to replace Mr Vito d’AMBROSIO
Mr Nichi VENDOLA
Presidente della Regione Puglia
(President of the Region of Apulia)
to replace Mr Raffaele FITTO
(b)
as alternate members:
Ms Mercedes BRESSO
Presidente della Regione Piemonte
(President of the Region of Piedmont)
to replace Mr Enzo GHIGO
Mr Claudio BURLANDO
Presidente della Regione Liguria
(President of the Region of Liguria)
to replace Mr Giandomenico BARCI
Mr Vito DE FILIPPO
Presidente della Regione Basilicata
(President of the Region of Basilicata)
to replace Mr Filippo BUBBICO
Mr Ottaviano DEL TURCO
Presidente della Regione Abruzzo
(President of the Region of Abruzzo)
to replace Mr Giovanni PACE
Mr Agazio LOIERO
Presidente della Regione Calabria
(President of the Region of Calabria)
to replace Mr Giuseppe CHIARAVALLOTI
Article 2
This Decision shall be published in the Official Journal of the European Union.
It shall take effect on the day of its adoption.
Done at Brussels, 20 September 2005.
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COMMISSION DECISION of 7 February 1996 on aid granted by the Region of Friuli-Venezia Giulia for the improvement of zootechnical practices, in the form of special financing for natural reproductive techniques (Only the Italian text is authentic) (96/474/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 93 (2) thereof,
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 424/95 (2), and in particular Article 24 thereof,
Having given notice to the parties concerned, pursuant to the first subparagraph of Article 93 (2), to submit their comments, and having regard to those comments,
Whereas:
I
1. By letter of 1 September 1992, recorded as received on 7 September 1992, the Italian Permanent Representative to the European Communities notified the Commission, in accordance with Article 93 (3) of the EC Treaty, of draft Regional Law (Friuli-Venezia Giulia) No 364/1 on aid for natural livestock-breeding establishments (covering stations). The Italian authorities provided further information to the Commission by letters of 25 January, 3 June and 9 December 1993.
By letter of 22 February 1994, the Commission informed the Italian Government of its decision to initiate the procedure in Article 93 (2) of the Treaty with regard to the measures in Article 30 of draft Regional Law No 364/1 which appeared to constitute operating aid not qualifying for any of the derogations laid down in Article 92 of the Treaty and were consequently to be regarded as incompatible with the common market.
The Commission gave notice to Italy to submit its comments under the above procedure.
The Commission, through a notice in the Official Journal of the European Communities, also invited the other Member States and interested parties to submit their comments (3).
The draft law was adopted meanwhile (as Regional Law No 20/1992).
Comments were submitted by the Italian Government by letter of 30 September 1994, recorded as received on 5 October 1994.
2. The measures in question involve a single non-recoverable grant to the 'Associazione tenutari stazioni taurine` (hereinafter referred to as the 'Associazione`), an agency involved in natural cattle-breeding practices in Friuli-Venezia Giulia.
Article 30 of Regional Law No 20/1992 provides for the subsidy in question totalling Lit 200 million primarily for natural insemination activities in accordance with the Associazione's statutes.
Under the said statute such activities consist in particular in improving the operation of cattle insemination establishments, breeding promotion, the purchase, management and distribution of breeding cattle and aid towards their upkeep.
The law specifies that the purpose of the measures is to implement a plan for the improvement of zootechnical practices in the mountainous zones of the region. The plan, according to the details given on the form submitted by the Italian authorities, must show the expenditure incurred, which may relate to any equipment, staff and transport costs.
According to the additional information supplied by the Italian authorities, the activities also consist in the granting of premiums to the 96 covering stations belonging to the association which are situated in mountainous areas for keeping pedigree breeding bulls.
The Italian authorities initially stated that the amount of the aid of Lit 200 million granted to the Associazione was to be distributed in equal shares to the 96 establishments. Each member establishment would thus obtain Lit 2,08 million, which represents an average (based on 1992 figures) of 42 % of their total annual operating costs. Later the Italian authorities stated that the costs of the member establishments consisted of costs for the purchase and upkeep of breeding animals.
Italy also specified that the total amount of the aid would be broken down into Lit 56 million for purchases of breeding animals and Lit 144 million for their upkeep (based on 1992 expenditure).
The regional authorities did not specify the maximum rate of aid; however, they did state that it would amount to at least 50 % of eligible expenditure.
Since the Article 93 (2) procedure was initiated, the Commission has received further information suggesting that the aid in question may have been granted before a final decision was reached under the said procedure.
II
1. By letter of 22 February 1994 to the Italian Government, the Commission stated that it had decided to initiate the procedure under Article 93 (2) of the Treaty against the aid provided for in Article 30 of draft Regional Law No 364/1.
The Commission took the view that the aid in question constituted operating aid contrary to established Commission practice on the application of Articles 92, 93 and 94 of the Treaty.
The measures were liable to distort competition and affect trade between Member States and where thus covered by Article 92 (1) of the Treaty without qualifying for any of the derogations set out in paragraphs 2 and 3 of that Article.
2. The Italian authorities did not accept the Commission's conclusions as set out in the communication to the Italian Government, contending that the measures in question did not distort competition or affect the operation of the common agricultural policy.
The Commission has received no comments from other Member States or other interested parties.
III
1. Article 24 of Council Regulation (EEC) No 805/68 applies Articles 92, 93 and 94 of the Treaty to the production and marketing of the products referred to in Article 1, unless the Regulation provides otherwise.
2. Article 92 (1) of the Treaty states that any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, shall, in so far as it affects trade between Member States, be incompatible with the common market.
The measures in question constitute aid within the meaning of Article 92 (1) of the Treaty since they improve the economic standing of the beneficiary undertakings vis-à-vis their competitors who do not receive this assistance. As a result, they distort or threaten to distort competition as described above.
Given the value of trade in beef and veal (in 1992: Italian trade-dispatches to the EC were worth ECU 163,84 million; trade-arrivals from the EC in Italy were ECU 2 470,92 million (4), it appears that the aid is likely to affect trade between the Member States by favouring national production to the detriment of imports from the other Member States.
In this regard, it should be emphasized that even if the amount of aid or the size of a beneficiary undertaking is relatively small, this does not automatically rule out the possibility that trade between the Member States may be affected.
In the light of the foregoing, the measures in question are State aid within the meaning of Article 92 (1) of the Treaty.
3. The principle of incompatibility laid down in Article 92 (1) does, however, allow for exceptions.
IV
1. The derogations from the incompatibility rule laid down in Article 92 (2) of the Treaty obviously do not apply here, nor have they been invoked by Italy.
2. The derogations provided for in Article 92 (3) of the Treaty must be interpreted strictly when any regional or sectoral aid programmes are being scrutinized or in any case where a general aid scheme is applied.
Specifically, the derogations may be granted only where the Commission is satisfied that the aid is needed to achieve one of the objectives in question. To grant a derogation in the case of an aid not offering such a guarantee would allow trade to be affected between the Member States and would unjustifiably distort competition to the detriment of the Community interest while at the same time unduly favouring the operators of certain Member States.
3. The aid in question offers no such guarantee. The Italian Government has supplied no evidence that the aid in question fulfils the conditions required for the application of any of the derogations provided for in Article 92 (3) of the Treaty, nor has the Commission found any such evidence.
4. The measures do not promote the execution of an important project of common European interest within the meaning of Article 92 (3) (b).
Neither are they measures to remedy a serious disturbance in the economy of a Member State within the meaning of the same provision.
5. The Commission's remarks and conclusions on the comments submitted by Italy are as follows:
According to the criteria laid down in its proposal for appropriate measures relating to aid granted by Member States in the livestock and livestock products sector (doc. 75/29416 of 19 September 1975), the Commission regards as compatible with the common market:
- aid for keeping such animals, up to a maximum of 30 % of eligible expenditure, provided that particular reasons such as the nature of the region justify such an exception,
- aid for the purchase of such animals, up to a maximum of 40 % of eligible expenditure.
The Commission notes first and foremost that the maximum levels of aid specified in the abovementioned proposal on appropriate measures have not been complied with for either the purchase or the keeping of animals. The Italian Government did indeed admit that the abovementioned permitted levels would be far exceeded by the proposed measures.
Even on the most favourable hypothesis, namely allowing the aid rate of 42 % referred to by the Italian authorities, the ceilings are exceeded.
Furthermore, the Commission has been unable to establish that the aid was not granted for any expenditure other than purchase and upkeep.
Article 30 of the draft Law provides that the aid is to be used primarily - not exclusively - for the natural reproductive activities envisaged in the statutes.
Under the statutes such activities consist in particular in the improvement of the operation of cattle insemination establishments, the promotion of breeding, the purchase, management and distribution of male breeding stock and aid for keeping such animals.
It follows that the wording of the said Article 30 does not establish a strict link between the award of aid, on the one hand, and the costs of purchase or upkeep, on the other.
It is not clear from the information supplied on the form by the Italian authorities, nor has the Commission been able to ascertain, that the proposed aid is confined to the cost incurred by beneficiaries in purchasing or keeping breeding livestock.
Furthermore, the fact that the amont and level of aid relate to expenditure already incurred (the overall costs of covering stations in 1992) indicates that the aid under Article 30 lacks the principal feature which disposes the Commission favourably to investment aid, namely an incentive function.
The regional authorities denied that the aid was related to expenditure already incurred and therefore had no incentive function. The regional authorities contended that the aid in question had been planned in 1992 to cover expenditure in that year.
The Commission notes in this connection that the period for which the beneficiaries may claim eligible expenditure (from 1 January to 31 December 1992) is not confined to a period following the adoption of the Law in question. In other words, the Law providing for the measures in question was not likely to give a beneficiary an incentive to invest.
In the light of the foregoing, the Commission takes the view that the measures in question constitute operating aid contrary to the Commission's established practice.
The Commission is therefore obliged to conclude that the proposed aid does not meet the criteria for being regarded as facilitating the development of the sectors concerned; it is therefore to be regarded as operating aid not bringing about any lasting improvement in the circumstances and structural position in which the beneficiaries find themselves.
Consequently, the Commission notes that these measures, by virtue of their operational nature, do not qualify for the derogations provided for in Article 92 (3) (a) and (c) of the Treaty, regarding aid to promote the economic development of areas or certain economic activities.
In the light of the foregoing, the Commission cannot accept the justifications put forward by the Italian Government.
The aid in question cannot therefore qualify as an exception under Article 92 of the Treaty and must therefore be regarded as incompatible with the common market.
V
Since the procedure laid down in Article 93 (2) was initiated, the Commission has received information which indicates that the aid in question may have been granted before a final decision has been reached under the said procedure. If such is the case and the aid has been granted without awaiting the final decision, the aid has been granted illegally.
Where aid is incompatible with the common market, the Commission must avail itself of the option laid down by the judgment of the Court of Justice of 12 July 1973 in Case 70/72 (5), confirmed by the judgments of 24 February 1987 in Case 310/85 (6) and 20 September 1990 in Case C-5/89 (7) and oblige the Member State to recover from the beneficiaries all aid granted illegally.
Such reimbursement is necessary to restore the status quo ante by eliminating all the financial advantages from which the beneficiaries of the aid granted illegally have benefited unduly since the date on which the aid was granted.
The reimbursement should therefore be made in accordance with Italian legal procedures and provisions, interest becoming payable from the date on which the aid in question was granted. Such interest would have to be calculated at the commercial rate, by reference to the rate used for calculating the subsidy equivalent in connection with regional aid (8).
This Decision shall not prejudge such conclusions as the Commission may draw regarding the financing of the common agricultural policy by the European Agricultural Guidance and Guarantee Fund (EAGGF),
HAS ADOPTED THIS DECISION:
Article 1
The aid provided for in Article 30 of Regional Law No 20/1992 of Friuli-Venezia Giulia is illegal within the meaning of Article 93 (3) of the Treaty if it has been applied; it is incompatible with the common market pursuant to Article 92 of the Treaty and may not be granted.
Article 2
Italy shall abolish the scheme referred to in Article 1 within two months of the date of notification of this Decision.
Article 3
Italy shall arrange to recover the aid referred to in Article 1, within two months of the date of notification of this Decision, namely by calling for reimbursement, with interest, of any sum already paid over.
Such recovery shall be undertaken in accordance with the procedures and provisions of national legislation. The sums to be recovered shall be subject to interest from the date of grant of the aid. Interest shall be calculated at the commercial rate, by reference to the rate used to calculate the subsidy equivalent for the purposes of regional aid.
Article 4
Italy shall inform the Commission, within two months of notification of this Decision, of the measures it has taken to comply herewith.
Article 5
This Decision is addressed to the Italian Republic.
Done at Brussels, 7 February 1996.
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COMMISSION REGULATION (EC) No 421/2009
of 20 May 2009
fixing the maximum export refund for skimmed milk powder in the framework of the standing invitation to tender provided for in Regulation (EC) No 619/2008
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1), and in particular Article 164(2), in conjunction with Article 4, thereof,
Whereas:
(1)
Commission Regulation (EC) No 619/2008 of 27 June 2008 opening a standing invitation to tender for export refunds concerning certain milk products (2) provides for a standing invitation to tender procedure.
(2)
Pursuant to Article 6 of Commission Regulation (EC) No 1454/2007 of 10 December 2007 laying down common rules for establishing a tender procedure for fixing export refunds for certain agricultural products (3) and following an examination of the tenders submitted in response to the invitation to tender, it is appropriate to fix a maximum export refund for the tendering period ending on 19 May 2009.
(3)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Markets,
HAS ADOPTED THIS REGULATION:
Article 1
For the standing invitation to tender opened by Regulation (EC) No 619/2008, for the tendering period ending on 19 May 2009, the maximum amount of refund for the product and destinations referred to in Article 1(c) and in Article 2 of that Regulation shall be EUR 22,00/100 kg.
Article 2
This Regulation shall enter into force on 21 May 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 May 2009.
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COMMISSION REGULATION (EC) No 908/2007
of 30 July 2007
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 31 July 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 July 2007.
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COUNCIL REGULATION (EC) No 3384/93 of 6 December 1993 opening and providing for the administration of a Community tariff quota for fresh strawberries originating in the Occupied Territories and laying down the procedure applicable to certain agricultural products subject to reference quantities originating in the said territories (1993/94)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 113 thereof,
Having regard to Council Regulation (EEC) No 1134/91 of 29 April 1991 on the tariff arrangements applicable to imports into the Community of products originating in the Occupied Territories and repealing Regulation (EEC) No 3363/86 (1), and in particular Articles 2 and 3 thereof,
Having regard to the proposal from the Commission,
Whereas Article 2 of Regulation (EEC) No 1134/91 provides for the elimination of customs duties on imports of the agricultural products set out in Annex II thereto and originating in the Occupied Territories on 1 January 1993, and within the periods indicated for each product; whereas, therefore, it is appropriate to open from 1 November 1993 the Community tariff quotas laid down for the said products, the volumes of which are indicated in Article 1 and the Annex to this Regulation;
Whereas duties on the strawberries falling within CN code 0810 10 90 are eliminated within the limits of a Community tariff quota of 1 200 tonnes;
Whereas equal and continuous access to the quota should be ensured for all Community importers and the rate laid down for the quota should be applied consistently to all imports of the products in question into all the Member States until the quota is exhausted;
Whereas the decision for the opening, in the execution of its international obligations, of a tariff quota should be taken by the Community; whereas, to ensure the efficiency of a common administration of this quota, there is, however, no obstacle to authorizing the Member States to draw from the quota-volume the necessary quantities corresponding to actual imports; whereas this method of administration 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 quota is 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 the quota may be carried out by any one of its members;
Whereas, in carrying out its international obligations, the Community must open reference quantities and establish a statistical surveillance system regarding the products listed in the Annex;
Whereas, in order to enable the competent authorities within the Commission to establish an annual trade balance sheet for each of the products and if necessary, to put into application the arrangement provided for in Article 3 (2) of Regulation (EEC) No 1134/91, these products are subject to the statistical surveillance in accordance with Regulations (EEC) No 2658/87 (2) and (EEC) No 1736/75 (3);
Whereas, to ensure the efficiency of the surveillance system, the Member States must nevertheless charge imports of the products in question against the reference quantities as and when these products are presented to the customs under cover of declarations for release for free circulation; whereas the reference quantities for the products listed in the Annex should be opened for the period 1993/94,
HAS ADOPTED THIS REGULATION:
Article 1
The customs duty applicable to imports into the Community of fresh strawberries originating in the Occupied Territories shall be suspended at the level indicated below and within the limit of the Community tariff quota as shown below:
1" ASSV=" 09.1381 2" ASSV=" 0810 10 90 * 36 4" ASSV=" Fresh strawberries from 1 November 1993 to 31 March 1994 5" ASSV=" 1 200 6" ASSV=" * * *
Article 2
The tariff quota referred to in Article 1 shall be administered by the Commission, which may take any appropriate measure with a view to ensuring the efficient administration thereof.
Article 3
If an importer presents, in a Member State, a declaration of entry into free circulation including a request for preferential benefit for a product covered by Article 1 of this Regulation, and if this declaration is accepted by the customs authorities, the Member State concerned shall draw, from the tariff quota, by means of notification to the Commission, a quantity corresponding to these needs. The requests for drawing, with the indication of the date of acceptance of the said declaration, must be communicated to the Commission without delay. The drawings are granted by the Commission on the basis of the date of acceptance of the declaration of entry into free circulation by the customs authorities of the Member State concerned, to the extent that the available balance so permits. If a Member State does not use the quantities drawn, it shall return them as soon as possible to the tariff quota. If the quantities required are greater than the available balance of the tariff quota, allocation shall be made on a pro rata basis with respect to the requests. Member States shall be informed by the Commission of the drawings made.
Article 4
1. Imports into the Community of certain products originating in the Occupied Territories shall be subject to reference quantities and to a statistical surveillance. The products referred to in the first subparagraph, their CN codes, the periods of validity and the levels of the reference quantities are set out in the Annex. 2. Quantities shall be charged against the reference quantities as and when products are entered with customs authorities for free circulation and accompanied by a movement certificate. If the movement certificate is submitted a posteriori, the goods shall be charged against the corresponding reference quantity at the moment when the goods are entered for free circulation. The extent to which the reference quantities are used up shall be determined at Community level on the basis of the imports charged against them in the manner defined in the first subparagrpah, as communicated to the Statistical Office of the European Communities in application of Regulations (EEC) No 2658/87 and (EEC) No 1736/75.
Article 5
The Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with.
Article 6
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities. It shall apply with effect from 1 November 1993.This Regulation shall be binding in its entirety and directly applicable in all Member States.Done at Brussels, 6 December 1993.
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Council Regulation (EC) No 978/2000
of 8 May 2000
imposing a definitive countervailing duty on imports of synthetic fibres of polyester originating in Australia, Indonesia and Taiwan and collecting definitively the provisional duty imposed
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidised imports from countries not members of the European Community(1), and in particular Article 15 thereof,
Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,
Whereas:
A. PROCEDURE
1. PROVISIONAL MEASURES AND TERMINATION
(1) By Commission Regulation (EC) No 123/2000(2) (hereinafter referred to as "the provisional duty Regulation") provisional countervailing duties were imposed on imports into the Community of polyester staple fibres (hereinafter "PSF") falling within CN code 5503 20 00 and originating in Australia and Taiwan and the proceeding covering the same product originating in the Republic of Korea and Thailand was terminated.
In the absence of conclusive evidence of subsidisation no provisional countervailing measures were imposed on imports of PSF originating in Indonesia. Nevertheless it was decided to continue the investigation into the imports from that country concerning notably the treatment of non-cooperating companies and the establishment of the countrywide margin of subsidisation.
(2) As a result of a parallel anti-dumping investigation, provisional anti-dumping duties were imposed under Commission Regulation (EC) No 124/2000(3) on imports into the Community of PSF originating in Australia, Indonesia and Thailand.
2. SUBSEQUENT PROCEDURE
(3) Subsequent to the imposition of provisional countervailing duty, several parties submitted comments in writing. In accordance with the provisions of Article 11(5) of Regulation (EC) No 2026/97 (hereinafter referred to as the "basic Regulation"), all interested parties who requested a hearing were granted such a hearing.
(4) The Commission continued to seek and verify all information deemed necessary for its definitive findings.
(5) All parties were informed of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive countervailing duties on imports of PSF originating in Australia, Taiwan and Indonesia.
They were also granted a period within which they could make representations subsequent to this disclosure.
(6) The oral and written comments submitted by the interested parties were considered and, where deemed appropriate, taken into account for the definitive findings.
B. PRODUCT CONCERNED AND LIKE PRODUCT
(7) The product concerned is synthetic staple fibres of polyesters, not carded, combed or otherwise processed for spinning, which is currently classifiable under CN code 55032000. It is commonly referred to as polyester staple fibres (PSF).
(8) As no comments were received following disclosure of provisional findings regarding the definition of the product concerned and the like product, the conclusions of recitals 10 to 12 of the provisional duty Regulation are hereby confirmed.
C. SUBSIDIES
(9) The findings made in the provisional duty Regulation concerning the countervailable subsidies obtained by the exporting producers are hereby definitively confirmed, unless it is expressly found otherwise in this Regulation.
I. AUSTRALIA
1. INTRODUCTION
(10) Following the publication of the provisional duty Regulation, the Government of Australia (hereinafter referred to as "GOA") submitted on 17 January 2000, in writing, its comments on the disclosure document containing the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Comments from the sole cooperating exporter were received on 14 January 2000. The GOA requested and was granted a hearing before the Commission services on 4 February 2000.
2. ISSUES CONCERNING SUBSIDISATION
2.1. General submissions
(11) The GOA claimed that the disclosure documents did not set out "the details underlying the essential facts and considerations on which provisional measures have been imposed" as set forth in Article 30 of the basic Regulation. Since the GOA did not receive the calculation methodology or the method of imposition of provisional measures, the disclosure documentation was deficient. In particular, the methodology in relation to non-recurring grants for capital expenditure/fixed assets was not provided.
(12) In response to this claim, it is considered that the disclosure document sent to the GOA despite the fact that no request for such provisional disclosure had been received from the GOA, contained a detailed analysis concerning subsidisation, injury, causation and Community interest. Therefore, the said disclosure document in fact did set out the details underlying the essential facts and considerations on which provisional measures have been imposed. An explanation of the methodology used for the calculation of the subsidy amount was provided in the disclosure document concerning all subsidy programmes for which benefits have been countervailed, for non-recuring grants the explanation was repeated in the provisional duty Regulation in recitals 30 to 32.
(13) It is not considered to be required by Article 30 of the basic Regulation to provide to a government the actual company-specific calculations for the amount of subsidy, in particular in the light of Article 29 of the basic Regulation and the rules on treatment of confidential information contained therein. Such information was provided to the cooperating exporter in the provisional disclosure document. In addition, pursuant to Article 2 of the provisional duty Regulation, the parties concerned were able to make known their views in writing on the contents of that Regulation, including the level of the countervailing duties.
2.2. Individual schemes
2.2.1. Export market development grants (EMDG) scheme
(14) The GOA argued that the "grants entry test" performed under the EMDG scheme, which is described in recitals 14 to 17 of the provisional duty Regulation, does not tie the grant to anticipated export earnings since the intent of the test is to ensure that the enterprise must have a prospect of success by ensuring that the applicant undertakes adequate financial and management planning.
(15) It was established that under this test, the applicant must show that he has planned export earnings which are not on the face of it unachievable. Since this was not disputed by the GOA, it was thus established that unless it is anticipated that earnings will accrue from exports, grants under the EMDG scheme will not be made. Hence, the subsidy is considered to be contingent in fact upon export performance since the facts verified in the investigation demonstrated that the granting of the subsidy is in fact tied to anticipated export earnings in the meaning of Article 3(4)(a) of the basic Regulation, irrespective of the "intent" of the test.
(16) Furthermore, it should be noted that the GOA and the exporting producer refused to provide copies of the documents pertaining to the actual grant received by the company, citing "business confidentiality" requirements. Therefore, it could not be verified whether the company in fact provided figures on planned export earnings to the granting authorities. Both the company and the GOA have been made aware during the verification visit that this refusal might lead to the final findings being made on the basis of the facts available in accordance with Article 28 of the basic Regulation. Therefore, since it was not disputed that the "grant entry test" requires the provision of information on planned export earnings, it is considered that the grant was given on the basis of such anticipated earnings accruing from exports.
(17) The GOA claimed that the EMDG scheme is not contingent upon export performance since the grant is calculated as a reimbursement of a percentage of promotional expenditure which is not tied to the sale of the product. Additionally, the scheme is not specific since it is not limited to exporters and eligibility is automatic based on objective criteria.
(18) Since the eligibility for grants under the scheme is in fact tied to anticipated export earnings, the subsidy is considered contingent in fact upon export performance within the meaning of Article 3(4)(a) of the basic Regulation, irrespective of the actual calculation of the amount of the subsidy. Such export subsidies are deemed to be specific in accordance with Article 3(4) of the basic Regulation as a matter of law.
(19) The GOA argues that the EMDG scheme does not favour domestic over imported goods since the legislation allows the promotion of goods made in Australia or overseas.
(20) In response to this argument, reference is made to Section 24 of Part 4 of the EMDG Act 1997 which states that "goods made in Australia are eligible goods if they meet the 50 % Australian content rule" and "goods made outside Australia are eligible goods if they meet the 75 % Australian content rule". According to subsections 3 and 4 of this Section, these Australian content rules can be deviated from depending on the determination by the Australian Trade Commission (Austrade) of whether or not "the Australian input in those goods is [...] sufficient to ensure that Australia will derive a significant net benefit from their export." This clearly shows that, regardless of whether goods are made in Australia or outside, they must meet the Australian content requirement, thus making the subsidy contingent upon the use of domestic over imported goods as set forth in 3(4)(b) of the basic Regulation. In addition, a determination by Austrade on whether the Australian input is sufficient to ensure that significant net benefits from their exports will be derived, would make this scheme in fact tied to anticipated export earnings in the meaning of Article 3(4)(a) of the basic Regulation.
(21) The GOA and the exporting producer claimed that no further payments have been received because the company is not eligible anymore for further grants. Furthermore, the exporting producer argued that since the grant received in the investigation period related to expenses incurred before the beginning of the investigation period, it should not be countervailed.
(22) It is considered that even though the company did not receive any recurring subsidies after the grant in question due to the fact that it did not meet the eligibility criteria after that date by exceeding the income threshold, the company was not permanently ineligible for the grant. Whether or not the company's income will reach a level which is below the respective level set under the EMDG scheme, is determined by purely commercial developments. This does not justify a deviation from the general principle that the amount of countervailable subsidies are to be calculated in terms of the benefit conferred on the recipient which is found to exist during the investigation period as prescribed in Article 5 of the basic Regulation.
(23) As a general rule, the appropriation of a subsidy to the investigation period is determined by the point in time when the benefit is received by the company. In this case, since the grant was paid out to the company during the investigation period, the benefit was conferred on the company by that date.
(24) Therefore, the claims made by the GOA and the exporting producer concerning the EMDG scheme are rejected and the provisional findings are confirmed.
(25) The cooperating exporting producer benefited from this scheme during the investigation period and obtained subsidies of 0,03 %.
2.2.2. Import credit scheme (ICS)
(26) The GOA and the exporting producer claim that PSF is not an eligible product under the scheme, which is described in recitals 33 to 35 of the provisional duty Regulation, and no payments or benefits were received by the company in relation to PSF. Benefits under the ICS related to other products and were expended on these products. There was no evidence of cross-subsidisation between the different products. The Commission concluded erroneously that the funds obtained from the sale of the import credits benefited all export products as the use of cash was not linked to a particular product. It was also incorrect to conclude that PSF exports have benefited from the sale of the import credits as most of the PSF is sold on the export market. This is not substantiated by the facts, in particular in the light of the company's substantial domestic sales.
(27) It is considered that the issue of cross-subsidisation does not arise in this case. The benefits under the ICS are not limited to a particular product. The company receives credits which it can convert into cash with no strings attached. There is no requirement that the cash must be used to benefit only the export, sale or production of the product for which the credit amount was calculated. Therefore, since the benefits of the subsidy are not linked to a particular product not subject to the investigation, they are considered to benefit all export sales, including export sales of PSF. Additionally, the statement that the import credits were "expended on these [other] products" is not supported by evidence. In fact, it was verified that all import credits obtained during the investigation period were converted into cash by the company. It should also be noted that the European Commission never concluded that since most of the PSF is exported, PSF exports benefited from the subsidy. The question whether or not most of the PSF is sold on the export market is not relevant for the issue of whether all exports, including exports of PSF, benefited from the payments under the ICS.
(28) The GOA also argued that since the ICS will be terminated on 30 June 2000, the continuation of the subsidy in the calculation of the countervailing duty is not justified in the light of Article 19(4) of the WTO Agreement on Subsidies and Countervailing Measures.
(29) Article 5 of the basic Regulation states that the amount of countervailable subsidies is calculated in terms of the benefit conferred on the recipient which is found to exist during the investigation period for subsidisation. Since the benefits under the ICS were obtained in the investigation period, they were taken account in the calculation of the amount of countervailable subsidies. Information on possible changes relating to subsidy programmes which might occur after the investigation period are normally not taken into account for investigating subsidisation in accordance with Article 11 of the basic Regulation. In this context, it should be noted that Article 19 of the basic Regulation provides for the right to request an interim review in which the Commission may consider, inter alia, whether the circumstances with regard to subsidisation have changed significantly. The GOA's claim is therefore rejected.
Calculation of the amount of the subsidy
(30) The GOA argued, that the amount of the subsidy was not properly calculated since it is incorrect that only exports are "cross-subsidised". Therefore, the correct denominator should be total sales and not export sales.
(31) In response to this argument, reference is made to the reasons for the rejection of a similar claim concerning the denominator for non-recurring grants for capital expenditure/fixed assets as set out below for the Incentives for International Competitiveness programme (IICP) and the Investment Attraction Programme (IAP). Since, as shown above, the subsidy is an export subsidy, it is considered to benefit export sales. Thus, the subsidy must be calculated by allocating the amount over export sales.
(32) The cooperating exporting producer benefited from this scheme during the investigation period and obtained subsidies of 3,48 %.
2.2.3. Investment Attraction programme (IAP) and Incentives for International Competitiveness programme (IICP)
(33) The GOA argued that there was no failure to cooperate during the investigation. Even though the grant contracts pertaining to the IICP and IAP, which are described in recitals 24 to 27 and 38 to 41, respectively, of the provisional duty Regulation, could not be provided, the information contained therein and an explanation on the intent, parameters and operation of the programmes was provided to the Commission services. Additionally, Article 28(3) of the basic Regulation provides that information is not to be disregarded provided that, inter alia, the party has acted to the best of its ability, which was the case here. Finally, the reasons for rejection of such evidence or information was not disclosed and given in published findings as required by Article 28 of the basic Regulation.
(34) During the verification visit the GOA and the cooperating exporter were made aware several times of the provision contained in Article 28(1) of the basic Regulation that the refusal to provide access to the grant contract and related supporting documents may lead to findings being made on the basis of the facts available concerning subsidies granted under the IICP and IAP. The actual conditions of the grants in question were never disclosed in full to the Commission services by the GOA and the cooperating exporting producer, not even orally. In this respect, it should be noted that information given by the GOA and the exporting producer on the intent, parameters and operation of the two programmes and the conditions and amount of the grants in question was not disregarded to the extent that this information was verifiable in accordance with Article 28(3) of the basic Regulation. The reasons for rejecting the unverifiable statement made by the GOA that neither the grants under the IICP nor under the IAP were contingent upon export performance are clearly set forth in the provisional disclosure document and in recitals 28, 29, 40 and 42 of the provisional duty Regulation.
(35) The GOA argued furthermore that information provided by the Victorian Government in relation to the grant payment under the IAP had been disregarded, and that the statements by the European Commission that the Victorian Government grant payment is contingent on export and that exports are one of the objectives of the Economic Development Act 1981, are not correct and not supported by the facts.
(36) Findings concerning conditions of the actual grant under the IAP had to be made on the basis of the facts available as explained above. These facts included Section 3(1)(c) of the Economic Development Act 1981 which states that the functions of the Ministry for Economic Development shall be to facilitate, encourage, promote and carry out, inter alia, "the development of export capacity of industry throughout the State", and the report of the Victorian auditor's offices cited by the complainant which contains a reference to expected export growth of the cooperating exporting producer.
(37) The pertinent provision for the grant in question, i.e. Section 13(3) of the Economic Development Act 1981 setting forth the objectives of the IAP does not specifically mention the development in export capacity, but rather more general conditions such as "the balanced economic development of the State". However, the Victorian industry statement of 1 September 1993, "Doing Business in Victoria" made by the Minister for Industry and Employment outlined the IAP by stating, inter alia, that "projects identified for assistance must offer significant net economic benefits to Victoria, particularly in terms of exports" and "investments should be in trade-exposed, key industry sectors, with priority being accorded to export or import competing companies".
(38) Therefore, it is considered, that the arguments made by the GOA concerning the IAP and the IICP should be rejected and it is confirmed that these subsidies are contingent upon export performance in the meaning of Article 3(4)(a) of the basic Regulation.
Calculation of the amount of the subsidy
(39) The GOA argued that with regard to grants made under the IICP and the IAP the denominator for allocation of the subsidy amount should be total sales and not only export sales since the grants were linked to the acquisition of fixed assets and therefore benefited the entire operation.
(40) It is normal practice that subsidies which are contingent upon export performance, are allocated over export sales regardless of whether they are granted for the purchase of fixed assets or not. It is a reasonable assumption that benefits under subsidy programmes which are intended to benefit exports, are also linked to such exports and that they should therefore be calculated on the basis of export sales. This approach is also in line with the Community's guidelines for the calculation of the amount of subsidy in countervailing duty investigations.
(41) The cooperating exporting producer benefited from the IICP and the IAP during the investigation period and obtained subsidies of 1,92 % and 0,64 %, respectively.
3. AMOUNT OF COUNTERVAILABLE SUBSIDIES
(42) The amount of countervailable export subsidies in accordance with the provisions of the basic regulation, expressed ad valorem, for the investigated exporter is as follows.
TABLE
(43) Since the investigated exporting producer accounted for virtually all of the imports of the product concerned into the Community originating in Australia, the weighted average countrywide subsidy margin is above the applicable de minimis margin for subsidisation of 1 %.
II. INDONESIA
1. INTRODUCTION
(44) Following the detailed disclosure of findings and the publication of the provisional duty Regulation, no submissions or comments were received within the applicable time limits.
(45) In accordance with established practice and policy concerning countries falling under Annex VII to the WTO Subsidies Agreement, it is considered that no benefit is conferred by subsidies below 0,3 %. This rule only applies to cooperating exporting producers who receive individual treatment.
2. SAMPLING
(46) In order to enable the Commission services to select a sample, pursuant to Article 27 of the basic Regulation, exporting producers were requested to make themselves known within 15 days of the initiation of the proceeding and to provide basic information on their export and domestic sales, their precise activities with regard to the production of the product concerned and the names and activities of all their related companies in the PSF sector. The Indonesian authorities and the Indonesian association of exporting producers were also informed in this regard by the Commission.
(a) Pre-selection of cooperating companies
(47) Seven companies in Indonesia came forward and provided the requested information within the time limit. These companies were initially considered as cooperating and were taken into account in the selection of the sample.
The companies, which made themselves known within the time limit represented virtually the totality of imports of the product originating in Indonesia into the Community.
(48) The cooperating companies which were not finally retained in the sample, were informed that any countervailing duty on their exports would be calculated in accordance with the provisions of Article 15(3) of the basic Regulation.
(49) Companies, if any, which did not make themselves known within the time limit, were considered as non-cooperating companies.
(b) Selection of the sample
(50) Initially, three Indonesian companies were chosen to constitute the sample in consultation with the Indonesian association of exporting producers. The Indonesian association of exporting producers proposed the replacement of two initially chosen companies by two others which, however, could not be considered more representative than those initially chosen. All parties concerned were informed accordingly.
(51) Questionnaires were sent for completion to all three companies initially selected for the sampling. Subsequently, one of these companies provided an incomplete response, which was moreover in contradiction to the basic information it had previously provided for the sampling exercise. A second company did not provide a complete and meaningful response and failed to inform the Commission services properly about its relationship with another Indonesian company. It should be noted that both companies had received several requests specifying precisely the nature of the information needed and were granted extended deadlines to submit this information. In consequence, these two companies were informed in detail of the reasons why they were no longer considered to be cooperating with the investigation and that the result of the investigation may be less favourable to them than if they had cooperated.
(52) Given the degree of non-cooperation by companies initially selected in the sample, the Commission services decided to select a new sample in accordance with Article 27(4) of the basic Regulation. For this purpose, two other Indonesian cooperating companies, which had provided complete and meaningful questionnaire responses, with a view to being granted individual examination, were added to the sample. The Indonesian association of exporting producers, the companies concerned and the Indonesian authorities were informed accordingly and raised no objection.
(53) The three companies which finally constituted the sample and which fully cooperated with the investigation were attributed their own subsidy margin and individual duty rate.
3. SUBSIDY PROGRAMMES USED BY COOPERATING EXPORTERS
BKPM schemes
(54) The Investment Coordinating Board (Badan Koordinasi Penanaman Modal - BKPM) is a Government agency serving directly under the President of the Republic of Indonesia. The function of the BKPM is to assist the President in formulating Government policies in respect of investment, and is responsible for the planning and promotion of investment, as well as the processing of investment approvals and licences and the supervision of the investment implementation. The BKPM plays a central role in coordinating investment activities with other Government agencies. The BKPM is equally involved in regional development as well as the compilation and management of the negative list of investment (Daftar Negative Investasi - DNI), which contains the sectors that are closed for investments as well as those that are regulated.
(55) The BKPM approves both foreign (Penanaman Modal Asing - PMA) and domestic (PMDN) investments. Companies that are approved by BKPM as PMA or PMDN companies will be granted exemption or relief from import duty and levies on the importation of capital goods, namely machinery, equipment, spare parts and auxiliary equipment, as well as on the importation of raw materials for the purpose of two years' full production.
(56) Foreign investment (PMA) is governed primarily by the Foreign Capital Investment Law No 1 of 1967, as amended by Law No 11 of 1970.
(57) Domestic investment (PMDN) is governed by Law No 6/1968 on domestic capital investment as amended by Law No 12/1971.
(58) In addition, PMA companies as well as other companies are subject to sectoral policies applied by the corresponding Government authorities such as those stipulated in Law No 5/1984 on industry, Law No 5/1967 on forestry, and Law No 12/1992 on agriculture.
(59) The legal basis for the import duty exemption or relief instruments themselves is contained in a number of Minister of Finance Decrees (No 297/KMK.01/1997, No 545/KMK.01/1997, No 546/KMK.01/1997 and No 252/KMK.04/1998).
(a) Eligibility
(60) Investment projects that are approved by BKPM, PMA as well as PMDN projects, including existing PMA and PMDN companies expanding their projects to produce similar products by more than 30 % of installed capacity or diversifying their products, will be granted these facilities.
(61) The criteria for eligibility are set by BKPM and appear to be updated frequently. These criteria include certain restrictions for foreign investment, most notably an obligation to enter into a joint venture with an Indonesian company when investing in certain sectors.
(62) Investments in the sectors indicated in the negative list of investment are as such not eligible and include certain chemical industries such as the cyclamate and saccharine industries. Investments in 12 other sectors are only eligible if they fulfil certain additional criteria. These sectors are enumerated in the "Technical manual - implementation of capital investment 1998" published by BKPM and contain, inter alia, the iodised consumer salt, ethyl alcohol and the fertiliser industries.
(63) With regard to the way the programme is administered, it was stated that the companies are subject to the sectoral/industrial policies applied by the corresponding ministries.
(b) Practical implementation
(64) As a first step, applications are submitted to BKPM where they will be evaluated in terms of their suitability to various aspects such as sectoral policies, technology, market and finance. In the case of approval, BKPM then also assists the companies in obtaining other necessary permits, such as building, land title and working permits.
(65) The import duty facilities themselves are obtained at a later stage. For this purpose, a so-called master list denominating capital goods and raw materials to be imported must be submitted through PT. Sucofindo, a technical inspection agency, which evaluates the list and then forwards it to BKPM after approval. The BKPM will then issue an approval letter and an import licence.
(c) Conclusion on countervailability
(66) The BKPM schemes constitute a subsidy as the financial contribution by the Government of Indonesia (GOI) in the form of unpaid duties confers a direct benefit upon the recipient.
(67) The schemes do not qualify as drawback schemes in accordance with the provisions of Annexes I to III to the basic Regulation, since capital goods are not consumed in the production process, and there is no obligation to export the finished product containing the raw materials.
(68) The BKPM schemes are not contingent in law upon export performance or the use of domestic goods over imported goods.
(69) While these schemes appear to be available for a wide range of investments, they explicitly limit access to the subsidy to certain enterprises which are not operating in certain sectors. Additionally, the number and quality of the restrictions applicable to certain sectors, most notably those restricting eligibility to either certain types of enterprises, or to geographical area, or completely exclude certain sectors, are not in line with the conditions of Article 3(2)(b) of the basic Regulation, which stipulates that the granting authority must establish objective criteria which are neutral, do not favour certain enterprises over others, and which are economic in nature and horizontal in application. Hence, these programmes are considered to be specific in the meaning of Article 3(2)(a) of the basic Regulation since they explicitly limit access to the subsidy to certain enterprises.
(70) Even if there were no specificity in law under Article 3(2)(a) of the basic Regulation, the scheme would be de facto specific under Article 3(2)(c) of the basic Regulation, since it has not been shown that eligibility is automatic, but rather based on a case-by-case decision in which a certain number of government authorities are involved which follow sectoral/industrial policies applied by the corresponding Ministries. No information was provided on the actual use of the subsidy programme and the manner in which discretion was exercised by the granting authorities. Hence, it is concluded that the BKPM schemes are, alternatively, also considered specific under Article 3(2)(c) of the basic Regulation and therefore countervailable.
(d) Calculation of the subsidy amount
(71) The determination of the obtained benefit was based on the amount of duties unpaid during the investigation period as far as raw materials and spare parts are concerned, and over the period from 1 January 1988 up to the end of the period of investigation for capital goods, for which the normal depreciation period of 17 years in that industry has been applied. Since the schemes are not contingent upon export performance, total benefits were allocated to total turnover. The obtained amount was then adjusted by the average commercial interest rate for bank loans during the period of investigation, which was determined to be 24,61 %.
(72) Two exporting producers availed themselves of these schemes, but obtained no benefit under these schemes in accordance with the policy explained above.
Bapeksta schemes
(73) The Centre for administration of import duty, exemption and drawback (Bapeksta) can grant, upon application, the exemption or restitution of import duty as well as the non-imposition of value added tax (PPN) and sales tax on luxury goods (PPnBM) on the import of goods for further processing for export.
(74) The exemption scheme covers duty on imports that will take place in the future, whereas the restitution scheme applies to imported inputs that have already been used in an exported product.
(75) The legal basis is the Decree of the Minister of Finance No 615/KMK.01/1997 of 1 December 1997.
(a) Eligibility
(76) The Bapeksta schemes are available to exporting producers in Indonesia upon application to Bapeksta.
(77) In order to obtain the exemption facilities, a company is required to re-export 100 % of the imported materials in the form of finished goods, within a period of 12 months starting at the date of import, unless the production period is longer than 12 months. In this case, an exception can be granted. A company must also submit a security in the form of a bank guarantee covering the amount of duty exemption and PPN and PPnBM normally payable.
(78) In order to obtain the restitution facilities, a company must already have exported the finished goods. The import must have taken place no earlier than 12 months before the shipment of the exported goods.
(79) For both facilities, exports may also take place to bonded zones within Indonesia.
(b) Practical implementation
(80) For the exemption facility, companies must submit a form containing the expected export performance in the future, the projected need for imported goods, and an estimate of duty and taxes normally payable. Afterwards, they are under obligation to submit a report on export to Bapeksta every six months.
(81) Bapeksta may later proceed with a verification by auditing the reports of the company concerned.
(82) For the restitution facility, a company must submit a form providing a link between the goods of imported origin, on which duty and taxes have been paid, and the goods exported, accompanied by import and export documents.
(83) Bapeksta is entitled to verify these documents by carrying out controls at the premises of the company concerned.
(c) Conclusion on countervailability
(84) The GOI claimed that the Bapeksta schemes are normal duty-drawback schemes in line with international obligations. Companies that were found to misuse these schemes and obtain excess exemption or restitution amounts would face penalties. It was also claimed that computer systems were in place to match import and export transactions and to confirm which inputs are consumed in the production of the exported products and in what amounts.
(85) However, the GOI was not able to produce sufficient evidence for the existence of an effective verification system.
(86) Annex II(II)(5) and Annex III(II)(3) to the basic Regulation provide that, where it is determined that the Government of the exporting country does not have such a system in place, a further examination by the exporting country based on actual inputs involved, or actual transactions, respectively, will normally need to be carried out in the context of determining whether an excess payment occurred. The GOI did not carry out such an examination. The Commission did not, therefore, examine whether there was in fact an excess drawback of import charges on inputs consumed in the production of the exported product.
(87) The Bapeksta schemes constitute a subsidy as the financial contribution by the GOI in the form of duty exemption or restitution confers a direct benefit upon the recipient. It is a subsidy contingent in law upon export performance (it is an export subsidy according to the provisions of Annex I(I) to the basic Regulation) and is therefore deemed to be specific under Article 3(4)(a) of the basic Regulation.
(d) Calculation of the subsidy amount
(88) The benefit to the exporters has been calculated on the basis of the amount of customs-duty exemption granted during the investigation period, allocated over total export turnover during the investigation period. This amount was then adjusted by adding half of 24,61 %, the average interest rate for commercial bank loans during the period of investigation.
(89) PT. Indorama Synthetics TbK availed itself of these schemes, and obtained a benefit of 1,4 %.
4. SUBSIDY PROGRAMMES NOT USED BY COOPERATING EXPORTING PRODUCERS
(90) It was found that the cooperating exporting producers did not benefit from any countervailable subsidies under the following programmes:
- income tax facility based on Government Regulation No 45 of 8 July 1996 and Presidential Decree No 7 of 14 January 1999,
- bonded zones under Government Regulation No 33/1996 of 4 June 1996 and Decisions of the Minister of Finance of the Republic of Indonesia (No 291/KMK.05/1997, No 547/KMK.01/1997, and No 292/KMK.01/1998).
5. AMOUNT OF COUNTERVAILABLE SUBSIDIES
(91) The Commission limited its examination by applying sampling in accordance with Article 27 of the basic Regulation. It was decided, under Article 27(4) of the basic Regulation, that there was a degree of non-cooperation by two companies selected in the sample which was likely to materially affect the outcome of the investigation, and thus a new sample had to be selected. The amount of countervailable subsidies for cooperating exporting producers included in the sample is established as follows.
TABLE
(92) In accordance with Article 15(3) of the basic Regulation, any countervailing duty applied to imports from exporters or producers which have made themselves known in accordance with Article 27 but were not included in the examination shall not exceed the weighted average amount of countervailable subsidies established for the parties in the sample. Thus, the amount of countervailable subsidies for cooperating exporting producers not included in the sample is established as follows.
TABLE
(93) The amount of countervailable subsidies in accordance with the provisions of the basic Regulation, expressed ad valorem, for the cooperating exporting producers varies from 0 % to 1,0 % and are therefore below the de minimis threshold of subsidisation for Indonesia, i.e. under 3 %.
(94) The two companies which were excluded from the sample, namely PT. Global Fiberindo and PT. Polysindo Eka Perkasa, represented a substantial share (i.e. over 30 %) of imports of the product concerned into the Community. Therefore, definitive findings as regards these two companies and any other company that did not cooperate in the present proceeding are made on the basis of the facts available in accordance with Article 28 of the basic Regulation.
(95) On such a basis, the investigation has evidenced the existence of countervailable subsidies which are available to the non-cooperating exporting producers. It is considered that the absence of cooperation is the result of the use and benefit by those producers of the countervailable subsidies at a level above the de minimis level for Indonesia. In accordance with the provisions of Article 28 of the basic Regulation and based on the information found in the complaint and the findings of the investigation, and in order to avoid granting a bonus for non-cooperation, the amount of countervailable subsidies for these two companies is established as follows.
TABLE
(96) The weighted average countrywide subsidy margin for all exporting producers investigated (including the two non-cooperating companies), which represent virtually the totality of exports of the product concerned to the Community originating in Indonesia is above the applicable de minimis margin for this country of 3 %.
III. TAIWAN
1. INTRODUCTION
(97) Following publication of the provisional duty Regulation, the Government of Taiwan (hereinafter referred to as "GOT") submitted in letters dated 17 and 19 January 2000 its views on the disclosure document containing the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Numerous written submissions were received from the exporting producers, all of whom requested and were granted a hearing on 15 February 2000.
2. GENERAL SUBMISSIONS
2.1. Specificity of the schemes concerned
(98) The exporting producers submitted some general comments concerning the interpretation of the concept of specificity. The determination of whether an investigated subsidy is specific has been made in accordance with the provisions of the basic Regulation, notably Article 3 thereof. The comments from the exporting producers have been taken into account when determining whether or not each investigated scheme involves specific subsidies, pursuant to Article 3 of the basic Regulation, which are countervailable. Thus, the manner in which the determination of specificity has been made for individual schemes is explained, under the section relating to each scheme where relevant, and in supplement to the findings contained in the provisional Regulation.
2.2. Calculation of prevailing commercial interest rate
(99) It had been provisionally decided to apply a general interest rate of 9,03 % for the purpose of this investigation. This rate was determined on the basis of the information obtained during the investigation which was considered appropriate for this purpose. GOT and the exporting producers challenged the reliability of this rate.
(100) In view of this claim, the generally applicable interest rate has been recalculated by the Commission services. The relevant benchmark interest rate is set at 8,52 % and was obtained by taking the monthly commercial interest rates charged during the investigation period by 37 domestic banks in Taiwan. These interest rates are publicly available and are part of the monthly financial statistics published by the Economic Research Department of the Central Bank of the Republic of China.
(101) It was also claimed that the interest rate used for the provisional findings should have been the one which is used for comparable loans and that anyway, the interest rate applied by the Commission is not commensurate with the interest rate which the companies are capable of obtaining on the market and that commercial loans were in fact made to the companies during the investigation period. A comparable loan should be a loan of a similar amount, purpose and with a similar repayment period. No such comparable loan was identified for the exporting producers concerned. Therefore, the methodology of the calculation of the benchmark interest rate as explained above is confirmed.
2.3. Application of the interest rate in the calculation of the amount of the subsidy
(102) The exporting producers claimed that the Commission is wrong in adding interest, at the average commercial interest rate in Taiwan during the investigation period, to the programmes which are found to be subsidies.
(103) The legal bases for the addition of interest to the face value of the subsidy are Articles 5, 6 and 7 of the basic Regulation, which contain provisions on the calculation of the amount of subsidy, as developed by the Commission's Guidelines for the calculation of the amount of subsidy in countervailing duty investigations.
(104) Pursuant to Article 5 of the basic Regulation, the calculation of the benefit shall reflect the amount of subsidy found to exist during the investigation period and not simply the face value of the amount at the time it is transferred to the recipient or foregone by the Government. Such an approach is specifically provided for in the Commission's guidelines for the calculation of the amount of subsidy in countervailing-duty investigations, where it is stated that the face value of the amount of subsidy has to be transformed into the value prevailing during the investigation period through the application of the normal commercial interest rate.
(105) It was also argued that this methodology cannot be applied to the alleged subsidisation amounts on tax credits since the tax credits, which the companies have claimed, are only utilised in the annual tax return which is made by 31 March of the following year. The exporting producers claim therefore that no benefit is conferred on them until this date.
(106) In response to this argument, it is considered that since the benefit consists of a reduction of direct tax which is payable every year, the benefit itself will recur annually as well. Therefore, the benefit should also include the interest element of not having to borrow an amount equal to such tax savings on the open market.
2.4. Assessment of the subsidies in relation to the product concerned
(107) The GOT and the exporting companies submitted that the Commission should have linked the alleged subsidy schemes to the product concerned in order to calculate any subsidisation rate by attributing benefits which can be specifically linked to product lines to the extent that they are directly linked to the product concerned.
(108) The Commission's guidelines explicitly mention that if the benefit of a subsidy is limited to a particular product, the denominator for allocation of subsidy amount should reflect only sales (or export sales) of that product. If this is not the case, the denominator should be the recipient's total sales (or export sales).
(109) The Commission, in its calculations, has followed this approach, as was correctly stated by the exporting producers, for the import duty exemption on raw materials. In this particular case, benefits were only identified for the fibre division and consequently the corresponding sales denominator was used. For all other described schemes, it was found that the benefits were not limited to a particular product and therefore the total sales were used as denominator.
3. INDIVIDUAL SCHEMES
3.1. Tax credit for the purchase of automation and pollution control equipment
(110) The GOT and the exporting producers claimed that this scheme, which is described in recitals 49 to 58 of the provisional duty Regulation was wrongly assessed by the Commission in terms of the specificity of the subsidy. In particular, it was claimed that the alleged subsidy of tax credits for automation and pollution control equipment is not contingent upon the use of domestic over imported goods and cannot therefore be regarded as specific within the terms of Article 3(4)(b) of the basic Regulation.
(111) Although the programme provides for a tax credit for imported as well as for domestically produced equipment, the subsidy is doubled for the purchase of domestic equipment. These two tax credit rates are considered separate programmes concerning domestically purchased equipment and imported equipment respectively. In the absence of the 20 % tax credit for domestically produced equipment, a company would have received no tax credit. The 10 % credit rate cannot be considered the standard rate of tax, because it is only available for imported equipment. Since the 20 % credit rate is only available for domestically produced equipment but not for imported equipment, it is contingent upon the use of domestic over imported goods. This tax credit is therefore a specific import substitution subsidy in the meaning of Article 3(4)(b) of the basic Regulation.
(112) By the same token, the 10 % credit rate is only available for imported machinery and is therefore limited to enterprises which purchase such imported machinery. Such a limitation is not considered to be neutral within the meaning of Article 3(2)(b) of the basic Regulation since it favours certain enterprises over others. Additionally, the criteria are not economic in nature or horizontal in application. Hence, the subsidy is specific in the meaning of Article 3(2)(a) of the basic Regulation.
Calculation of the subsidy amount
(113) As regards the calculation of the amount of countervailable subsidies, the exporting producers argued that 15 % of the 20 % tax credit for the purchase of domestically produced goods cannot be countervailable, because such a tax credit would be obtained irrespective of the origin of the goods. This claim is not considered justified. The amount of countervailable subsidies consists of the full amount of tax credits, since the tax credit of 20 % for domestically purchased equipment cannot be considered as a deviation from a standard tax credit rate of 10 %. As explained above, the two tax credit rates are considered separate programmes concerning domestically purchased equipment and imported equipment respectively. In the absence of the 20 % tax credit for domestically produced equipment, a company would not have received a tax credit. The 10 % credit rate only applies to imported machinery; it is not a general credit rate. Therefore, the Commission concluded that the amount of the subsidy is the total revenue foregone by the GOT.
(114) The benefit to the exporting producers has been calculated as explained in recital 57 of the provisional duty Regulation, correcting however the average commercial interest rate which was added to the amount of taxes unpaid during the investigation period as explained above.
(115) The GOT claimed furthermore, that since the subsidy is linked to the purchase of fixed assets, it should be calculated by spreading the subsidy over the normal depreciation period of the assets in the industry concerned.
(116) It is considered that benefits in the form of savings of direct taxes are generally not considered to be linked to the purchase of fixed assets. Benefits related to direct taxes are linked rather to the reduction in direct tax liability than to the purchase of fixed assets, since such a direct tax liability normally exists whether or not fixed assets are purchased. This approach is also in line with the Commission's guidelines for the calculation of the amount of subsidy in countervailing duty investigations as set forth in particular in Table 2 which is attached to the said guidelines. Therefore, the benefits under the scheme were calculated on the basis of income tax saved in the investigation period in accordance with Article 7(4) of the basic Regulation.
(117) Two companies benefited from this scheme during the investigation period and obtained subsidies of 0,42 % and 0,40 % respectively.
3.2. Tax credit for investment in important enterprises
(118) The GOT claimed that this scheme does not constitute a subsidy since there is no financial contribution to invested companies. Tax deductions are only given to investing stockholders, not stock-issuing companies.
(119) It is considered that there is a financial contribution by the GOT to the companies claiming the tax credit, i.e. the companies investing in important enterprises. This financial contribution in the form of foregone government revenue results in a benefit for the investing stockholders in the form of a reduced tax liability. It is this benefit to the investing company which is countervailed, not benefits to the companies in which the investment is made.
(120) The GOT and the exporting producers claimed that this scheme, which was described in recitals 59 to 66 of the provisional duty Regulation, concerns a tax credit which is generally available and therefore not specific, as this programme is open to any legal or moral person investing in certain enterprises. In particular, it is alleged that the eligibility of the scheme is not limited to certain enterprises; that it is objective, automatic and neutral and that the benefit of the tax credit does not accrue to a company as a result of its production of the product concerned.
(121) As regards these claims, the Commission found that the access to this programme is explicitly limited to companies which invest in certain enterprises, since not all investments in stocks are eligible for tax credits. Only investments in a limited number of enterprises, i.e. important technology-based or important investment enterprises, will qualify for a tax credit.
(122) In addition, although the Commission agrees that the definition of the eligible enterprises is clear and objective, eligibility is not neutral, as required by Article 3(2)(b) of the basic Regulation, since it limits the number of investments which may result in a tax credit, on the basis of the activity of the firms concerned. If an investing enterprise wishes to obtain the subsidy, its freedom of choice is restricted on a sector-specific basis. Article 2 of the criteria for determining the scope of major technology enterprises with respect to manufacturing industry and technical-service industry limits the tax credit to 11 specific types of investments. Consequently, the access to this programme is dependent upon making investments in certain enterprises and it is not generally available. Thus, the claims of the exporting producers in this respect have to be rejected.
(123) It is also argued that that the benefit of the tax credit does not accrue to a company as a result of its production of the product concerned. Benefits under this scheme are not limited to the production of a particular product. There is no requirement that the credit be used to benefit only the export, sale or production of another product. The company receives a tax credit which benefits the production and exports of PSF. Therefore, since the benefits of the subsidy are not linked to a particular product not subject to the investigation, they are considered to benefit all sales, including sales of PSF. Hence, the above claim made by the exporting producers must be rejected.
(124) In conclusion, the finding that this scheme is considered specific in accordance with Article 3(2)(a) of the basic Regulation and involves countervailable subsidies is confirmed.
Calculation of the amount of the subsidy
(125) The benefit to the only exporting producer concerned has been calculated as explained in recital 57 of the provisional duty Regulation, correcting the average commercial interest rate from 9,03 % to 8,52 % as explained above which was added to the amount of taxes unpaid during the investigation period.
(126) This company obtained a benefit of 0,71 %.
3.3. Tax credits for R & D and personnel training
(127) As already established in the provisional duty Regulation (recitals 67 to 72), these tax credits have been considered not to be specific. No written comments were received from the parties concerned disputing this finding. Thus, this scheme is found not to be specific in the meaning of Article 3 of the basic Regulation, and thus not countervailable.
3.4. Tax credit for investments in scanty natural resources areas
(128) The GOT made a green-light claim under Article 4(3) of the basic Regulation for this scheme arguing that it fulfils the criteria for non-countervailable subsides to disadvantaged regions. However, this claim was not substantiated with verifiable evidence. Since it could not be established that the requirements in the said provision are in fact fulfilled, this claim must be rejected.
(129) The GOT also argued that no benefits linked to PSF were received by the exporting companies. This argument has to be rejected in accordance with the reply above in the section on the "Assessment of the subsidies in relation to the product concerned".
Calculation of the subsidy amount
(130) One company availed itself of this scheme and obtained a benefit of 0,01 %.
3.5. Tax credits for establishing international brands
(131) As was described in recital 81 of the provisional duty Regulation, one exporting producer availed itself of this scheme but obtained no benefit. No comments were received from the parties concerned.
3.6. Loans at preferential interest rates: incentives for automation, anti-pollution incentives and energy conservation incentives
(132) These schemes, which were described in recitals 82 to 91 of the provisional duty Regulation, are based on Article 21(1) of the Statute for upgrading industries (hereinafter referred to as "SUI").
(133) The GOT and the exporting producers claimed that these loans are available to almost all Taiwanese companies and therefore they are not specific and are accordingly not countervailable. Concretely, it is claimed that eligibility is not limited to certain enterprises; that eligibility for the programme is objective and that, even if eligibility is not objective, it does not automatically follow that the programme is specific.
(134) As regards these claims, it is a fact that the provisions of Article 21(1) of the abovementioned SUI explicitly limit the benefits thereunder to certain enterprises which comply with a number of criteria or conditions. Those criteria or conditions, such as investments in specific equipment under specific conditions set by the Executive Yuan of the Development Fund, are not considered to be objective within the meaning of Article 3(2)(b) of the basic Regulation. The provisions of Article 21(1) of the SUI cannot be considered objective since the criteria are not neutral or economic in nature or horizontal in application because it is known in advance that certain enterprises are more likely than others to be in a position to benefit from these loans just by reason of the type of business sector they are in. Therefore, benefits from this scheme will inevitably be more relevant to some sectors than to others.
(135) A basic principle of specificity is that a subsidy that distorts the allocation of resources within an economy, by favouring certain enterprises over others, should be subject to countervailing measures if it causes injury. Where eligibility for subsidies is limited within an economy, on the basis of non-neutral criteria such a distortion in the allocation of resources is presumed to occur. This principle is at the basis of Article 3(2)(a) of the basic Regulation, which provides that a subsidy is specific if the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises. Thus, the above claims are rejected.
(136) It was claimed that, even if eligibility is not objective, it does not automatically follow that the programme is specific. This claim should also be rejected because no automatic finding of specificity has been made. This scheme is considered specific because it is limited to certain enterprises within the meaning of Article 3(2)(a) of the basic Regulation, as explained above. The Commission therefore confirms its provisional findings as described in recital 87 of the provisional duty Regulation.
(137) It was also argued that with respect to loans at preferential interest rates, the countervailable subsidy only would represent the difference in interest rates between the government's practice and commercial practice.
(138) The Commission guidelines for the calculation of the amount of subsidy in countervailing duty investigations, however, specify that in the case of loans from the government the subsidy represents the difference between the amount of interest paid on the government loan and the interest normally payable on a comparable commercial loan during the investigation period.
(139) The GOT also claimed that only two companies had benefited under this programme for the development of PSF. This claim has to be rejected in accordance with the reply above in the section on the "Assessment of the subsidies in relation to the product concerned".
Calculation of the subsidy amount
(140) The exporting producers claimed that the interest rate used for the provisional findings should have been the one which is used for comparable loans and that anyway, the interest rate applied by the Commission is not commensurate with the interest rate which the companies are capable of obtaining on the market and that commercial loans were in fact made to the companies during the investigation period.
(141) A comparable loan should be a loan of a similar amount, purpose and with a similar repayment period. As was mentioned in recital 89 of the provisional Regulation no such comparable loan was identified for the exporting producers concerned. Therefore, the Commission confirms the application of the benchmark interest rate as calculated for Taiwan and explained above.
(142) In addition, one exporting producer first claimed that the Commission included in its calculation benefits which allegedly arose even where the company concerned did not pay interest during the whole investigation period since the loan was only taken up in tranches over the investigation period. In subsequent letters, the same exporting producer claimed, on the contrary, that interest payments had been made during the investigation period.
(143) The company specifically refers to three loans for which the information provided in the reply to the questionnaire, and verified during the on-the-spot visit, in the sense that no interest payments had been made during the investigation period for these loans, was not contested until after the first submission of this company in response to the disclosure of the provisional findings.
(144) These loans were reported as loans without any interest payments by the company during the investigation period and where the principal amounts of the loans were granted in one-off grants. The Commission calculated the alleged subsidy amounts as explained in the provisional Regulation.
(145) After disclosure of the provisional findings, the company claimed that for those loans several interest payments occurred during the investigation period and that the principal loan amount was granted to them in a series of grants.
(146) It is found that the information provided in this respect contradicts the statements explicitly made by the company in its response to the questionnaire and during the verification visit. In addition, the new allegations do not correspond to earlier verified data. Furthermore, such allegations have not been sufficiently substantiated by objective and/or verifiable evidence. The Commission therefore confirms its original calculation methodology with regard to those loans.
(147) It was also argued that in calculating the amount of the subsidy, the Commission should take into account the fact that no repayments of principal were made during the investigation period due to a two-year period of grace. This claim does not change the calculation of the benefit made by the Commission, on the basis of the difference between the amount of the interest paid and that normally payable. The Commission therefore confirms its original calculation methodology with regard to these loans.
(148) The benefits to the exporting producers have been calculated as explained in recitals 88 to 90 of the provisional duty Regulation.
(149) The benefits obtained by these four companies range from 0,04 % to 0,31 %.
3.7. Import duty exemption: purchases of new equipment and anti-pollution equipment
(150) The legal bases for this alleged countervailable subsidy scheme are: additional notes 3 and 9 of Chapter 84, additional notes 4 and 5 of Chapter 85 and additional notes 1 and 2 of Chapter 90 of the Customs import tariff and classification of import and export commodities of the Republic of China (hereinafter referred to as "Customs Code").
(151) The GOT claimed that this programme does not meet any of the definitions of a subsidy as set forth in Article 2 of the basic Regulation, notably because there is no direct transfer of funds, there are no goods or services provided and there is no price or income support. This claim has to be rejected because this scheme involves a financial contribution by the GOT in the form of import duties foregone, in accordance with Article 2(1)(a)(ii) of the basic Regulation, and a benefit is conferred thereby.
(152) The GOT and the exporting producers claimed that this scheme, which is described in recitals 92 to 99 of the provisional duty Regulation, was wrongly assessed by the Commission in terms of the specificity of the subsidy and consequently of the countervailability of the alleged subsidy.
(153) In particular, it was claimed that the access to this import duty exemption scheme is available to all Taiwanese companies who wish to purchase equipment which is not produced locally and it can therefore not be considered specific because the range of companies who wish to take advantage of such an exemption is not limited and is administered on the basis of objective and neutral criteria.
(154) It is considered that this criterion is not objective within the sense of Article 3(2)(b) of the basic Regulation. This Article requires that objective criteria or conditions must be neutral and also economic in nature and horizontal in application. The provisions of the additional notes of the Customs Code mentioned above, are considered not to be economic in nature and horizontal in application since the use of this scheme is limited only to certain enterprises. The enterprises that may benefit from this scheme must be incorporated and qualified manufacturers or technical service industries who will use this scheme to import machinery, equipment and instruments for prevention of air pollution, water contamination, noise or vibration, or for environmental inspection and test or wastage disposal, research and experiment or for examination and analysis under the headings of the specific Chapters of the Customs Code. In addition it should also be stressed that the specified equipment, after fulfilling these requirements, can only be exempted from import duty if it has been verified by the Taiwanese authorities that this equipment has not yet been manufactured in Taiwan. Therefore, only companies which are active in an industry where the machinery is not made in Taiwan will benefit from this scheme.
(155) The above claims are rejected and the provisional findings, as described in recital 97 of the provisional duty Regulation, confirmed.
Calculation of the subsidy amount
(156) The benefits to the exporting producers have been calculated as explained in recital 98 of the provisional duty Regulation.
(157) The benefits obtained by the four exporting companies concerned range from 0,12 % to 0,20 %.
3.8. Import duty exemption: imports of raw material
(158) The legal basis for this alleged countervailable subsidy scheme, which is described in recitals 100 to 106 of the provisional duty Regulation, is additional note 6 of Chapter 29 of the Customs import tariff and classification of import and export commodities of the Republic of China (hereinafter referred to as "Customs Code").
(159) The exporting producers argued that this scheme should not have been included in the investigation since there was no reference to this scheme in the complaint and because no information was requested by the Commission with regard to this programme until the verification visits.
(160) Both the complaint and the notice of initiation referred to "import duty exemptions" as alleged subsidy programmes benefiting the product concerned. Therefore, it is considered that the complaint contained sufficient prima facie evidence to initiate an investigation and that both the notice of initiation and the questionnaires and related documents sent by the Commission were sufficiently clear in requesting information on exemption of import duty, including on raw materials. Additionally, when lodging a complaint, complainants cannot be expected to have knowledge of every last detail of alleged subsidy programmes in a third country. Indeed, Article 10(2) of the basic Regulation specifies that the complaint shall contain such information as is reasonably available to the complainant. The complainant also made allegations concerning import duty exemptions for purchases of new equipment and anti-pollution equipment. In view of the nature of the subsidies and in particular the fact that import duty exemptions for such equipment and raw materials were granted under the same umbrella of "additional notes" to the Customs Code, it is concluded that the Commission is entitled to investigate them and to recommend countervailing action if appropriate.
(161) The GOT claimed that this programme does not meet any of the definitions of a subsidy as set forth in Article 2 of the basic Regulation, notably because there is no direct transfer of funds, there are no goods or services provided and there is no price or income support. This claim has to be rejected because this scheme involves a financial contribution by the GOT in the form of import duties foregone, in accordance with Article 2(1)(a)(ii) of the basic Regulation, and a benefit is conferred thereby.
(162) The GOT and the exporting producers claimed that this scheme was wrongly assessed by the Commission in terms of the specificity of the subsidy and consequently of the countervailability of the alleged subsidy.
(163) It was claimed that such import duty exemptions are not in fact limited to certain enterprises, because the criteria for allowing such exemptions are objective and neutral.
(164) This scheme is explicitly limited to given manufacturers, which are subject to the factory administration rules, for the importation of specifically listed raw materials, in this case chemicals, which are exclusively used in the manufacturing of plastics, artificial fibre, rubber and petrochemical intermediates by chemical reaction, and provided that, in addition, such chemicals are not yet produced or sufficiently supplied in Taiwan. As a result, the Commission finds that this scheme is explicitly limited to certain enterprises which comply with the conditions contained in the provisions of the specific additional note of the Customs Code. Such conditions are not considered to be neutral or economic in nature or horizontal in application.
(165) It was also argued by the exporting producers that this scheme cannot be considered a subsidy because it does not involve the granting of benefits in excess of the import charges levied, for imports which are fully incorporated in the product concerned. Given that, according to Annex I to the basic Regulation, such an exemption would not be regarded as a countervailable subsidy when it is contingent upon export, it is claimed that a similar exemption, which is not contingent upon export performance, must a fortiori be regarded as a non-countervailable subsidy.
(166) Annex I to the basic Regulation contains an illustrative list of export subsidies, including item (i) which pertains to duty drawback schemes to which the argument probably refers. However, under the scheme in question, there is no remission or drawback of import charges since it was not claimed that there is a requirement to use the imported goods as input for the production of the final exported product. It considered, therefore, that Annex I as an illustrative list of export subsidies, does not apply to the issue whether this programme constitutes a subsidy, in particular since the scheme is not considered to be an export subsidy. Article 2(1)(a)(ii) of the basic Regulation requires explicitly that only exemptions granted in accordance with Annexes I to III are not to deemed to be subsidies. Therefore, the regular definition of a subsidy contained in Article 2 of the basic Regulation applies. This scheme constitutes a subsidy since there is a financial contribution of the GOT in the form of import duty foregone, which confers a benefit on the recipient by not having to pay the import duty otherwise due.
(167) The Commission therefore confirms its provisional findings as described in recital 104 of the provisional duty Regulation.
Calculation of the amount of the subsidy
(168) The benefits to the exporting producers have been calculated as explained in recital 105 of the provisional duty Regulation.
(169) The benefits obtained by the four exporting companies concerned range from 0,16 % to 0,51 %.
3.9. Matching funds and assistance funds
(170) The GOT made a green-light claim under Article 4(2) of the basic Regulation for this scheme arguing that it fulfils the criteria for non-countervailable subsidies for research activities. However, this claim was not substantiated with verifiable evidence. Since it could not be established that the requirements in the said provision are in fact fulfilled, this claim must be rejected.
(171) The GOT also claimed that this programme is not related to the production of PSF. This claim has to be rejected in accordance with the reply above in the section on the "Assessment of the subsidies in relation to the product concerned".
Calculation of the amount of the subsidy
(172) Two companies availed themselves of this scheme. One company did not obtain benefits, the other received a benefit of 0,01 %.
4. AMOUNT OF COUNTERVAILABLE SUBSIDIES
(173) The following domestic subsidy rates for the cooperating companies were established:
TABLE
(174) The weighted-average countrywide subsidy margin for all the exporting producers investigated which virtually represent the totality of exports of the product concerned to the Community originating in Taiwan is above the applicable de minimis margin of 1 %.
D. INJURY
1. DEFINITION OF THE COMMUNITY INDUSTRY
(175) Since no comments were received regarding the definition of the Community industry, the conclusions of recital 133 of the provisional duty Regulation are hereby confirmed.
2. CONSUMPTION IN THE COMMUNITY
(176) Since no comments were received on consumption in the Community, its assessment as indicated in recital 134 of the provisional duty Regulation is hereby confirmed.
3. IMPORTS OF PSF INTO THE COMMUNITY FROM THE COUNTRIES CONCERNED
(a) Cumulative assessment of imports
(177) It was provisionally considered that there were sufficient grounds for cumulating the imports from Australia and Taiwan and to exclude from the analysis the imports from the Republic of Korea, Thailand and Indonesia.
(178) Since, at the present stage of the investigation countervailable subsidies above the de minimis threshold were found to exist with respect to Indonesia, the question had to be examined whether, in accordance with Article 8(4) of the basic Regulation, imports of PSF originating in Indonesia should be assessed cumulatively with imports from Australia and Taiwan.
(179) The results of the subsequent examination showed that:
(a) the countrywide margins of subsidy relating to Australia, Taiwan and Indonesia were above the de minimis level;
(b) the volume of imports from these countries was not negligible when compared to Community consumption;
(c) the analysis of the conditions of competition on the Community market between imported PSF and the Community product and the conditions of competition between imported PSF indicated that:
- imported PSF from all exporting countries and Community-produced PSF are like products,
- imported PSF from all exporting countries was sold through similar sales channels to the same customers,
- imported PSF from all countries was sold at similar prices.
It was found that sales prices of the imports from the countries concerned were undercutting those of the Community industry.
(180) Based on the above considerations, it was concluded that there were sufficient grounds for cumulating the imports from Australia, Taiwan and Indonesia.
(b) Volume of imports and market share
(181) With the cumulation of Indonesia, between 1996 and the IP the imports of PSF from the counties concerned developed as follows:
TABLE
(182) The above table shows that the volume of imports from the countries concerned increased significantly, particularly between 1997 and 1998 when it almost doubled. The slight decline between 1998 and the IP is due to a low level of imports in the first quarter of 1999 as compared to the first quarter of 1998.
TABLE
(183) The above figures include imports from Indonesia. The trend confirms the increase of imports from the countries concerned on the Community market, both in absolute terms and in terms of market share.
(c) Evolution of average import price
(184)
TABLE
The above table shows a significant decrease in average import price, particularly between 1997 and 1998 (-12 %). Import prices further decreased by 6 % between 1998 and the IP. This negative evolution coincides with the surge of imports from the countries concerned during the period 1997 to the IP.
(d) Price undercutting
(185) It is recalled that price undercutting was provisionally established on the basis of a comparison between the export price (cif Community frontier, duties paid) and prices charged by the Community industry (ex-works). The sales prices considered for similar product types of PSF were those to independent customers after deduction of discounts and rebates. Where necessary the export prices were adjusted to reflect the same level of trade as those of the Community industry.
(186) The results of the comparison (on a weighted-average to weighted-average basis) showed that price-undercutting margins, expressed as a percentage of the Community industry's average selling prices, were on average 21 % for Australia and 6,1 % for Taiwan. As no comments were received regarding these undercutting calculations, the undercutting margins are hereby confirmed.
(187) The same methodology was applied with regard to Indonesia. Based on the information provided by the cooperating exporting producers and on the best facts available for the non-cooperating exporting producers in Indonesia, the result of the comparison showed a weighted-average undercutting margin of 33,9 % for that country.
4. ECONOMIC SITUATION OF THE COMMUNITY INDUSTRY
(a) Production, capacity and capacity utilisation
(188) The GOA contested the method used by the Commission to assess the production capacity of the Community industry for the product concerned. In its opinion, the decrease in production capacity by 7 % for PSF was determined with regard to capacity used for the production of other products and was thus incorrect. The GOA considered that production capacity for PSF should have been assessed exclusively on the actual production of the PSF covered by the investigation.
(189) In any event, the GOA considered that the reduction in the Community industry's production capacity was not compatible with a finding of material injury: firstly because this reduction did not allow the Community industry to participate in the considerable growth of the market (+27 %) during the period considered; and secondly, because the reduction in capacity was motivated by the fact that other products were more profitable than PSF.
(190) In respect of the assessment of production capacity, it should be underlined that the product concerned is produced on the same production lines as other products of the same family. It is therefore impossible to identify the actual capacity exclusively installed for one product as compared to all the products produced on one and the same production line. In these circumstances, the assessment of production capacity for PSF was based on a ratio comparing the actual production of PSF to the total actual production of all products produced on the same production lines. Consequently, contrary to the claim made by the GOA, the assessment of production capacity for PSF takes into account the actual production of PSF.
(191) It also follows that the decrease in production capacity of the Community industry was not determined by the inclusion of other products. This statement is strengthened by the subsequent findings of the investigation, which confirmed that the Community industry converted several production lines formerly attributed to the production of PSF to other types of fibres not covered by the present investigation. The investigation also showed that several PSF production sites were closed down during the period considered.
(192) It should also be noted that the switch from the production of PSF to the production of other products was motivated mainly by the long-term losses incurred by the Community industry on production and sales of PSF facing continued unfair competition from dumped and subsidised imports from third countries. The reduction in capacity, which indeed did not allow the Community industry to participate in the market growth, is therefore particularly relevant for the determination of injury but more specifically for the analysis of the causal link between the subsidised import and the injury suffered by the Community industry discussed below.
(193) On this basis, the GOA's claims are considered to be unfounded. Accordingly, the data provided, the method described for assessing production capacity for PSF and the conclusions contained in recitals 141 and 142 of the provisional duty Regulation are hereby confirmed.
(b) Profitability of the Community industry
(194) The GOA pointed out that the Community industry's profitability significantly improved over the period considered, namely from a loss of around 4 % to a profit of over 6 %. It was also claimed that while it was mentioned in the provisional duty Regulation that the level of profitability was still inadequate, no figures were provided as to what the profitability of the industry was prior to the appearance of subsidised imports. Consequently, the GOA claimed that no proper assessment could be made as to whether the injury suffered by the Community industry was material.
(195) The above statement rightly suggests that an improvement in profitability during the period considered does not automatically lead to the conclusion that the Community industry did not suffer material injury. In addition, the assessment as to whether the injury suffered by the Community industry was material cannot only be based on profitability nor can it be based on a comparison of profitability between 1996 up to the IP.
Indeed, the provisions of the basic Regulation enumerate a number of factors among which are the volume of dumped imports and the effect of dumped imports on prices on the Community market for like products and specifies no one or more of these factors can necessarily give decisive guidance for a negative finding on injury.
(196) As indicated below in the conclusions on the economic situation of the Community industry, the conclusion of material injury was not only justified by the inadequate profitability achieved by the Community industry but also based on the negative developments observed for most of the economic indicators pertaining to that industry: market share, production capacity, sales volume, sales prices, stocks, investments, employment and significant price undercutting by subsidised imports from the countries concerned.
(197) As far as profitability is concerned, the present investigation showed that its improvement was mainly the result of both the restructuring process undertaken by the Community industry and the resulting reduction in sales, general and administrative costs and the decrease of the raw materials purchase prices. Production costs were reduced faster than sales prices decreased, thus allowing the Community industry to return to profit from 1998 onwards. Nevertheless, it was emphasised that this improvement in profitability may only be temporary and any adverse factors such as unfavourable development in raw material prices could, have serious implications for the current situation.
(198) Notwithstanding this, it should be noted that the Commission indicated in recital 179 of the provisional duty Regulation that a margin of 10 % should be added to the full cost of production in order to obtain the non-injurious price of the Community industry. Consequently, it is considered that this margin represents the minimum profit the Community industry could expect in the absence of subsidised imports from the countries concerned.
(199) Based on the foregoing, since no further comments were received regarding the profitability of the Community industry, the conclusion that profitability during the IP is inadequate is hereby confirmed.
(c) Market share
(200) The GOT argued that one of the consequences of the restructuring of the Community industry was the elimination of a number of inefficient Community producers of PSF on the Community market. It further claimed that the remaining producers thus not only became more competitive due to international competition but did not face a loss in market share which can be considered as material.
(201) Regarding this claim, it should be pointed out that the development of the market share during the period considered was consistently assessed on the basis of the same companies that constitute the Community industry in the present case. Therefore, contrary to the GOT's claim, the loss in market share (-17 %) experienced by the Community industry from 1996 to the IP is exclusively based on the data pertaining to the companies constituting the Community industry. The suggestion that the market share of the Community industry includes information of companies which disappeared or withdrew from the market is therefore unfounded.
(d) Conclusion
(202) In the light of the above and in view of the fact that the cumulation of imports from Indonesia did not give grounds such as to change the provisional findings and the conclusion that the Community industry suffered material injury during the IP, the contents of recitals 151 and 152 of the provisional duty Regulation regarding the conclusion on the situation of the Community industry are hereby confirmed.
E. CAUSATION
1. EFFECT OF SUBSIDISED IMPORTS
(203) Both the GOA and the GOT stated that there is no evidence that the injury suffered by the Community industry was caused by the limited volumes imported from Taiwan and Australia.
(204) The GOA claimed that the market share of Australian imports was too limited (2 % of consumption) to have any influence on prices on the Community market. Rather, they had to follow the price trends imposed by the large operators on the Community market. Accordingly, the GOA suggested that injury, if any, was caused by large imports from other third countries.
(205) The GOT similarly argued that the market share of approximately 6 % held by Taiwanese exports, in conjunction with the low price-undercutting level established for these imports, could not objectively have had an impact on the situation of the Community industry which has a market share of over 50 % in the Community.
(206) Regarding the arguments raised by the GOA and the GOT on their respective market share, it is recalled that imports from Australia and Taiwan were found to be clearly above the de minimis level during the IP. In addition, it was found that all conditions required for a cumulated analysis were met. In these circumstances, comments concerning individual market shares held by individual countries are irrelevant.
(207) In addition, the prices at which the PSF imported from these countries was sold on the Community market were undercutting the Community industry's prices. Accordingly, subsidised PSF imported from Australia and Taiwan, together with low-priced subsidised PSF imported from Indonesia had a significant negative impact on the economic situation of the still vulnerable Community industry. This finding is reinforced by the fact that the PSF market is transparent and that, therefore, price differentials or low-priced offers can have a price-depressing effect.
(208) Consequently, it is considered that the GOA and the GOT did not provide any evidence which would contradict the provisional finding that the Community industry suffered material injury as a result of low-priced subsidised imports. Accordingly, the conclusion that subsidised imports, taken in isolation, had caused material injury to the Community industry is hereby confirmed.
2. CURRENCY FLUCTUATIONS
(209) The GOA argued that the Commission failed to look at the effect that exchange-rate fluctuations have had on import price from Australia, specifying that during the investigation period PSF imported from Australia had benefited from a favourable exchange rate appreciation.
(210) In this respect it should be noted that imports from this country were invoiced in USD, DEM and GBP and not in AUD on the Community market. The parity of the Australian currency was therefore not relevant in the relevant determinations.
(211) In any event, it should be pointed out that the Australian currency depreciated during the first seven months of the IP and subsequently appreciated during the next five months, as compared to its parity to the ECU/EUR of the first month of the IP. Consequently, there was no constant decreasing trend of the Australian currency during the investigation period.
3. CONCLUSION
(212) Given that no new other arguments were received regarding the cause of the injury suffered by the Community industry, the conclusion that subsidised imports, taken in isolation, had caused injury to the Community industry, as stated in recital 168 of the provisional duty Regulation, is hereby confirmed.
F. COMMUNITY INTEREST
1. INTEREST OF THE COMMUNITY INDUSTRY
(213) Since no comments were received regarding the above issues, the findings on the interest of the Community industry cited in recital 170 of the provisional duty Regulation are hereby confirmed.
2. IMPACT ON USERS
(214) Following the publication of the provisional Regulation, a number of users and importers submitted their comments in writing. Furthermore, one users' association reacted to the provisional duty Regulation and asked for and was granted a hearing before the Commission.
(215) It should be pointed out that most of the above users and importers either did not make themselves known within the time limit set out in the notice of initiation of the proceeding, or did not reply to the questionnaire sent to them by the Commission. Consequently, most of them cannot be considered as interested parties under Article 31(2) of the basic Regulation and their views should not normally be taken into account at this stage of the proceeding.
(216) In addition, as stated in recital 171 of the provisional Regulation, the overall low level of cooperation in the Community interest investigation meant that the assessment of the impact of the measures on the activities of users and importers was determined according to the information available.
(217) The submissions made by the interested parties were examined and it was concluded that their main argument was that the imposition of countervailing duties would have negative effects on their competitiveness on downstream products and would ultimately threaten their survival on Community PSF market. Indeed, the imposition of duties would, as a first step, trigger increases in PSF prices from the countries concerned, forcing Community PSF users in turn to increase the prices of downstream products. In their opinion this development would be the cause of the increase in imports of low-priced downstream products from other third countries and from the countries concerned in this investigation.
(218) In the light of the contents of recitals 171 and 172 of the provisional Regulation, the investigation showed that certain users completely shifted from purchasing PSF from the Community industry to exclusively purchasing PSF from the countries concerned. It is therefore considered that, if no measures are taken to correct the distorting effects caused by the presence of low-priced subsidised imported PSF, this situation will amplify and the overall market will suffer in the long term: firstly, because a number of Community producers will disappear leading to reduced competition on the Community market; secondly, because it will encourage more low-priced subsidised PSF to enter the Community market putting the users of such imports in a more favourable competitive situation compared to those using other sources of supply. Consequently, it is considered that the interest of all the operators on the Community market requires the existence of effective trade competition and therefore the imposition of countervailing measures against subsidised imported PSF.
(219) In any event, the information available on the cost structure of the user industry, the level of the proposed measures and the share between subsidised imports and the other sources of supply indicate that:
- PSF may represent between 25 % and 45 % of the users' total cost of production of downstream products,
- the average countervailing duty is about 3 % for the countries concerned,
- the share of subsidised imports is 12 % of total consumption of PSF.
The proposed measures may have the impact of increasing the cost of production of users by between 0,1 % to a maximum of 0,16 %. This likely maximum increase is considered to be negligible when compared to the positive impact of the proposed measures in restoring effective competition on the Community market.
(220) Consequently, the conclusion of recital 172 of the provisional duty Regulation that the impact of the proposed measures on the users' profitability and survival on the market will be limited is hereby confirmed.
3. CONCLUSION
(221) The new arguments received regarding the determination of the Community interest, are not considered to be such as to reverse the conclusion that no compelling reasons exist against the imposition of countervailing measures. The provisional findings are therefore confirmed.
G. DEFINITIVE DUTIES
(222) In view of the conclusions reached regarding subsidies, injury, causation and Community interest, it is considered that definitive countervailing measures should be taken in order to prevent further injury being caused to the Community industry by subsidised imports from Australia, Indonesia and Taiwan.
1. INJURY ELIMINATION LEVEL
(223) As explained in recital 179 of the provisional duty Regulation, a non-injurious level of prices was determined which would cover the Community industry's cost of production and a reasonable profit which would be obtained in the absence of subsidised imports from the countries concerned.
2. FORM AND LEVEL OF THE DUTY
(224) In accordance with Article 15(1) of the basic Regulation the countervailing duty rates correspond to the subsidy margins, as the injury margins are found to be higher for all exporters in the countries concerned.
(a) Australia
(225) This led to the following countervailing duty rates for the cooperating exporting producer in Australia:
TABLE
(226) Given the high level of cooperation, which covered virtually all imports of the product concerned originating in Australia, it was considered appropriate to establish the residual duty rate at the same rate as the highest rate that has been established for the cooperating company i.e. 6,0 %.
(b) Indonesia
(227) Given the high level of non-cooperation in Indonesia, which was determined to be above 30 %, it was considered appropriate to apply a method which avoided granting a bonus for non-cooperation. Accordingly, the duty rate for non-cooperating companies was established on the basis of the facts available in accordance with Article 28 of the basic Regulation, i.e. at 10 %.
TABLE
(c) Taiwan
(228) It is recalled that anti-dumping measures are already in place with regard to imports of PSF originating in Taiwan. However, the subsidies found in this investigation are not export subsidies and are therefore considered not to have affected the export price and the corresponding dumping margin. Consequently, countervailing duties can be imposed in cumulation with the existing anti-dumping measures. Accordingly, this would lead to the following countervailing duty rates for the cooperating exporting producers in Taiwan:
TABLE
(229) Given the high level of cooperation, which has covered virtually all imports into the Community of the product concerned originating in Taiwan, it was considered appropriate to establish the residual duty rate at the same rate as the highest rate that has been established for the cooperating companies i.e. 1,5 %.
(230) The individual company countervailing duty rates specified in this Regulation were established on the basis of the findings of the present investigation. Therefore, they reflect the situation found during that investigation with respect to these companies. These duty rates (as opposed to the countrywide duty applicable to 'all other companies are thus exclusively applicable to imports of products originating in the country concerned and produced by the companies and thus by the specific legal entities mentioned. Imported products produced by any other company not specifically mentioned in the operative part of this Regulation with its name and address, including entities related to those specifically mentioned, cannot benefit from these rates and shall be subject to the duty rate applicable to "all other companies".
(231) Any claim requesting the application of these individual company countervailing duty rates (e.g. following a change in the name of the entity or following the setting-up of new production or sales entities) should be addressed to the Commission(4) forthwith with all relevant information, in particular any modification in the company's activities linked to production, domestic and export sales associated with for example that name change or that change in production and sales entities. The Commission, if appropriate, will, after consultation of the Advisory Committee, amend the Regulation accordingly by updating the list of companies benefiting from individual duty rates.
H. COLLECTION OF THE PROVISIONAL DUTY
(232) In view of the magnitude of the countervailing subsidies found for the exporting producers, and in light of the seriousness of the injury caused to the Community industry, it is considered necessary that the amounts secured by way of provisional countervailing duty under Regulation (EC) No 123/2000 be definitively collected to the extent of the amount of definitive duties imposed,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive countervailing duty is hereby imposed on imports of synthetic staple fibres of polyesters, not carded, combed or otherwise processed for spinning, falling within CN code 55032000 and originating in Australia, Indonesia and Taiwan.
2. The duty rate applicable to the net free-at-Community-frontier, before duty, for products produced by the companies indicated shall be as follows for products originating in:
(1) Australia
TABLE
(2) Indonesia
TABLE
(3) Taiwan
TABLE
3. Unless otherwise specified, the provisions in force concerning customs duties shall apply.
Article 2
1. The amounts secured by way of the provisional countervailing duty on imports originating in Australia and Taiwan under Regulation (EC) No 123/2000 shall be collected at the rate of the duty definitively imposed by this Regulation. Amounts secured in excess of the rate of definitive countervailing duty shall be released.
2. The provisions referred to in Article 1(3) shall also apply to the definitive collection of the amounts secured by way of the provisional countervailing duties.
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, 8 May 2000.
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Commission Regulation (EC) No 1082/2001
of 1 June 2001
amending Regulation (EC) No 562/2000 laying down detailed rules for the application of Council Regulation (EC) No 1254/1999 as regards the buying-in of beef and correcting Regulation (EC) No 590/2001 derogating from and amending Regulation (EC) No 562/2000
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 47(8) thereof,
Whereas:
(1) Commission Regulation (EC) No 562/2000(2), as last amended by Regulation (EC) No 590/2001(3), lays down detailed rules for the application of Council Regulation (EC) No 1254/1999 as regards the buying-in of beef. In particular, Article 17 of Regulation (EC) No 562/2000 stipulates certain conditions on the takeover and preliminary inspections.
(2) By derogating from Article 4(2) of Regulation (EC) No 562/2000, Article 1(2)(b) of Regulation (EC) No 590/2001, as last amended by Regulation (EC) No 826/2001(4), provides for the buying-in of five-rib forequarters. In order to clarify the situation with regard to preliminary inspections in case of the takeover of quarters, the rules have to be amended.
(3) Article 1(2)(b) of the English version of Regulation (EC) No 590/2001 contains an error. Moreover, the word "Article" in the last subparagraph of Article 1(7) of Regulation (EC) No 590/2001 should be replaced by the word "paragraph".
(4) Regulation (EC) No 562/2000 and Regulation (EC) No 590/2001 should therefore be amended and corrected respectively.
(5) In view of the development of events this Regulation must enter into force immediately.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
The second subparagraph of Article 17(3) of Regulation (EC) No 562/2000 is replaced by the following text: "Such inspections shall cover consignments of up to 20 tonnes of half carcasses as laid down by the intervention agency. However, where the offer involves quarters, the intervention agency may allow a consignment of more than 20 tonnes of half carcasses. Where more than 20 % of the total number of half carcasses in any consignment inspected is rejected, the whole consignment shall be rejected in accordance with paragraph 6."
Article 2
Regulation (EC) No 590/2001 is corrected as follows:
1. (Concerns only the English version).
Article 1(2)(b) shall read as follows: "(b) The following may be bought into intervention: five-rib forequarters obtained using a straight cut from the carcasses or half carcasses referred to in Article 4(2) of Regulation (EC) No 562/2000; the price of forequarters shall be calculated by applying the coefficient 0,80 to the carcass price."
2. The first phrase of the last subparagraph of Article 1(7) shall read as follows: "Moreover, with respect to products purchased under this paragraph:"
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, 1 June 2001.
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COMMISSION REGULATION (EC) No 640/2007
of 11 June 2007
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 12 June 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 June 2007.
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COMMISSION REGULATION (EC) No 1817/2004
of 20 October 2004
setting export refunds in the processed fruit and vegetable sector other than those granted on added sugar (provisionally preserved cherries, peeled tomatoes, sugar-preserved cherries, prepared hazelnuts, certain orange juices)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2201/96 of 28 October 1996 on the common organisation of the markets in processed fruit and vegetable products (1), and in particular the third subparagraph of Article 16(3) thereof,
Whereas:
(1)
Commission Regulation (EC) No 1429/95 (2) set implementing rules for export refunds on products processed from fruit and vegetables other than those granted for added sugar.
(2)
Article 16(1) of Regulation (EC) No 2201/96 states that to the extent necessary to permit exportation of economically significant quantities export refunds can be granted on the products listed at Article 1(2)(a) of that Regulation within the limits ensuing from agreements concluded in line with Article 300 of the Treaty. Article 18(4) of that Regulation provides that if the refund on the sugar incorporated in the products listed in Article 1(2)(b) is insufficient to allow exportation of these products the refund set in line with Article 17 thereof shall apply to them.
(3)
Article 16(2) of Regulation (EC) No 2201/96 requires that it be ensured that trade flows that have already arisen as a result of granting of export refunds are not disturbed. For that reason the quantities should be set product by product using the agricultural product nomenclature for export refunds established by Commission Regulation (EEC) No 3846/87 (3).
(4)
Article 17(2) of Regulation (EC) No 2201/96 requires that when refunds are set account is taken of the existing situation and outlook for prices and availability on the Community market of products processed from fruit and vegetables and for international trade prices, of marketing and transport costs and of the economic aspects of the exportation envisaged.
(5)
Article 17(3) of Regulation (EC) No 2201/96 requires that when prices on the Community market are determined account is taken of the prices that are most favourable from the point of view of exportation.
(6)
The international trade situation or specific requirements of certain markets may make it necessary to differentiate the refund on a given product by destination.
(7)
Economically significant exports can at present be made of provisionally preserved cherries, peeled tomatoes, sugar-preserved cherries, prepared hazelnuts and certain orange juices.
(8)
Export refund rates and quantities should therefore be set for these products.
(9)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Products Processed from Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
1. Export refund rates in the processed fruit and vegetable sector, periods for lodging and for issuing licence applications and the quantities permitted are stipulated in the Annex hereto.
2. Licences for food aid purposes issued as indicated in Article 16 of Commission Regulation (EC) No 1291/2000 (4) shall not be counted against the quantities indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 25 October 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 October 2004.
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*****
COUNCIL DECISION
of 27 July 1990
on the conclusion of the Agreement in the form of an Exchange of Letters on the provisional application of the Protocol establishing, for the period from 3 May 1990 to 2 May 1992, the fishing opportunities and financial compensation provided for in the Agreement between the European Economic Community and the Government of the People's Republic of Angola on fishing off Angola
(90/409/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Agreement between the European Economic Community and the Government of the People's Republic of Angola on fishing off Angola, signed in Luanda on 1 February 1989 (1),
Having regard to the proposal from the Commission,
Whereas the Community and the People's Republic of Angola held negotiations to determine the amendments or additions to be made to the abovementioned Agreement on the expiry of the application period of the second Protocol to the Agreement and currently in force;
Whereas, as a result of those negotiations, a new Protocol was initialled on 4 April 1990;
Whereas the Protocol provides Community fishermen with fishing opportunities in waters over which the People's Republic of Angola has sovereignty from 3 May 1990 to 2 May 1992;
Whereas, in order to avoid any interruption in the fishing activities of Community vessels, the new Protocol should be applied as soon as possible; whereas for this reason the two Parties have initialled an Agreement in the form of an Exchange of Letters providing for the provisional application of the initialled Protocol from the day following that on which the Protocol currently in force expires; whereas that Agreement should be approved, pending a final decision to be taken on the basis of Article 43 of the Treaty,
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement in the form of an Exchange of Letters on the provisional application of the Protocol establishing, for the period from 3 May 1990 to 2 May 1992, the fishing opportunities and financial compensation provided for in the Agreement between the European Economic Community and the Government of the People's Republic of Angola on fishing off Angola 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 persons empowered to sign the Agreement in the form of an Exchange of Letters in order to bind the Community.
Done at Brussels, 27 July 1990.
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COUNCIL DIRECTIVE of 11 November 1980 amending Directive 64/432/EEC with regard to swine vesicular disease and classical swine fever (80/1098/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 43 and 100 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas Directive 64/432/EEC (4), as last amended by Directive 80/219/EEC (5), lays down the health requirements which must be fulfilled by live bovine animals and swine intended for intra-Community trade;
Whereas the existence of swine vesicular disease in the Community represents a danger for the Community stock of swine ; whereas, accordingly, steps should be taken to ensure that the disease is not spread;
Whereas the persistence of classical swine fever in certain parts of the Community represents a danger for the stock of swine of those Member States which are free from the disease ; whereas until such time as classical swine fever has been eliminated in the parts where it still exists, the Member States should be authorized to take additional measures with a view to preventing any contamination in the course of trade,
HAS ADOPTED THIS DIRECTIVE:
Article 1
With effect from 1 November 1980, Directive 64/432/EEC is hereby amended as follows: 1. In Article 2 (j) (ii) the words "swine vesicular disease" shall be inserted between the words "swine fever" and "or contagious swine paralysis";
2. In Article 3 (2): (a) at (b) the words "swine vesicular disease" shall be inserted between the words "foot-and-mouth disease" and "swine fever";
(b) at (b) (i) and (ii), the words "or swine vesicular disease" shall be inserted after the words "foot-and-mouth disease";
(c) at (c) (ii) the words "swine vesicular disease" shall be inserted between the words "foot-and-mouth disease", and "bovine and porcine brucellosis";
3. In Article 2, the following points shall be added:
"(p) "officially swine fever-free holding" means a holding in which: - no swine fever has been detected for at least the preceding 12 months,
- there are no pigs which have been vaccinated against swine fever,
- vaccination against swine fever has not been authorized for at least the preceding 12 months,
in addition, no swine fever must have been detected for at least the preceding 12 months within a radius of two kilometres around the holding;
(q) "officially swine fever-free Member State or region" means a Member State or region which: - no swine fever has been detected for at least the preceding 12 months,
- vaccination against swine fever has not been authorized for at least the preceding 12 months,
and in which the holdings contain no pigs which have been vaccinated against swine fever;
(r) "swine fever-free Member State, region or holding" means a Member State, region or holding in which no swine fever has been detected for at least the preceding 12 months.
";
4. In Article 3 (4) the following words shall be inserted after "brucellosis-free stock" : "and from an officially (1)OJ No C 130, 31.5.1980, p. 6. (2)OJ No C 175, 14.7.1980, p. 79. (3)OJ No C 300, 18.11.1980, p. 20. (4)OJ No 121, 29.7.1964, p. 1977/64. (5)OJ No L 47, 21.2.1980, p. 25. swine fever-free holding or a swine fever-free holding, provided that in the latter case the animals are accompanied by a certificate testifying that they have not been vaccinated.";
5. In Article 4b, the following penultimate paragraph shall be inserted:
"Until 31 December 1982 and subject to compliance with the general provisions of the Treaty, the Member States referred to in the first subparagraph may also make the introduction into their territory of swine for breeding or production conditional upon a negative result when tested for antibodies of swine vesicular disease during the 30 days preceding shipment.";
6. The following Article shall be inserted:
"Article 4c
1. Member States which have availed themselves of the authorization laid down in Directive 80/218/EEC and which are officially swine fever-free may not oppose the introduction into their territories of swine which come from: (a) either a Member State the territory of which is officially swine fever-free;
(b) or a Member State: - which has not allowed vaccination against swine since at least 12 months previously,
- in which during the same period there have not been any cases of swine fever,
- but which does not allow the introduction of vaccinated pigs into its territory unless they are slaughter pigs or fattening pigs weighing less than 25 kg and destined for fatstock holdings which they may not leave except to go for slaughter,
provided that the animals intended for the Member States referred to at the beginning of this paragraph have been born and reared on officially swine fever-free holdings and, in the case of animals for breeding or production, they have shown a negative result in the test for the antibody produced by swine fever;
(c) or a part of a territory made up of a region or of several adjacent regions, that part being recognized as officially swine fever-free for the purpose of intra-Community trade by the Council acting unanimously on a proposal from the Commission within three months following the date on which the proposal was referred to it.
This status shall, without prejudice to the possibility of recourse to Article 9 of this Directive, be suspended by the Commission for a period of 15 days upon the occurrence of an outbreak or of several epizootiologically linked outbreaks of swine fever within a geographically limited area.
A decision may be taken within this period in accordance with the procedure provided for in Article 12 either to reconfirm or to withdraw the status of the part of the territory in question.
In the event of withdrawal, that status may be granted afresh to the part of the territory in accordance with the same procedure only after a period of: - three months, if there has been no vaccination,
- six months, if there has.
2. However, subject to compliance with the general provisions of the Treaty, the Member States which have availed themselves of the authorization laid down in Directive 80/218/EEC shall be authorized to retain their national regulations on protection against swine fever as regards the introduction into their territories of animals for breeding, production or slaughter from the Member States other than those referred to in paragraph 1 (a) and (b) above and, until such time as the decision referred to in the first subparagraph of paragraph 1 (c) has been taken, from the parts of territories concerned.";
7. In Article 7 (1) the following point shall be added:
"F. In the case of swine for breeding or production, by way of derogation from Article 3 (4) and until 31 December 1985, those animals which have been vaccinated against swine fever.";
8. In Annex E paragraph (b), the fifth indent shall be deleted and the following three indents added:
"- swine fever,
- swine vesicular disease,
- African swine fever;
"
9. Annex F, Model III, point V shall be amended as follows: 1. the following point shall be inserted:
"(c) they come from: - an officially swine fever-free holding (2),
- a swine fever-free holding (2), and (i) have not been vaccinated against swine fever (2);
(ii) have been vaccinated against swine fever ; the vaccination has been authorized by the country of destination (2);";
2. points (c) to (f) shall become points (d) to (g).
3. in the second paragraph of point (e), the words "swine vesicular disease", shall be inserted between the words "foot-and-mouth disease", and "bovine and swine brucellosis,".
Article 2
Article 4 c of Directive 64/432/EEC shall apply until 31 December 1985.
Before 1 July 1985, the Commission shall submit to the Council a report on developments in the situation with particular regard to trade, together with appropriate proposals as regards swine fever.
The Council shall take a decision on these proposals not later than 31 December 1985.
Article 3
The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 July 1981 and shall forthwith inform the Commission thereof.
Until the date on which the Member States are able to comply, and until 1 July 1981 at the latest, Denmark, Ireland and the United Kingdom are authorized to retain their national rules relating to protection against swine fever upon introduction into their territory of swine for breeding, production and slaughter, subject to compliance with the general provisions of the Treaty.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 11 November 1980.
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Council Regulation (EC) No 74/2004
of 13 January 2004
imposing a definitive countervailing duty on imports of cotton-type bedlinen originating in India
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidised imports from countries not members of the European Community(1), and in particular Article 15 thereof,
Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,
Whereas:
A. PROCEDURE
1. Initiation
(1) On 18 December 2002 the Commission announced by a notice (notice of initiation) published in the Official Journal of the European Communities the initiation of an anti-subsidy proceeding with regard to imports into the Community of bedlinen of cotton fibres, pure or mixed with man-made fibres or flax (flax not being the dominant fibre), bleached, dyed or printed (cotton-type bedlinen) originating in India(2) and commenced an investigation.
(2) The proceeding was initiated following a complaint lodged in November 2002 by the Committee of the Cotton and Allied Textile Industries of the European Communities (Eurocoton or "the complainant") on behalf of producers representing more than 25 % of the total Community production of cotton-type bedlinen. The complaint contained prima facie evidence of subsidisation of the said product and of material injury resulting therefrom, which was considered sufficient to justify the initiation of an anti-subsidy proceeding.
(3) Prior to the initiation of the proceeding and in accordance with Article 10(9) of Regulation (EC) No 2026/97 (the basic Regulation), the Commission notified the Government of India (GOI) that it had received a properly documented complaint alleging that subsidised imports of cotton-type bedlinen originating in India were causing material injury to the Community industry. The GOI was invited for consultation with the aim of clarifying the situation as regards the contents of the complaint and arriving at a mutually agreed solution. Consultations with the GOI were subsequently held with the Commission at its offices in Brussels, where no conclusive evidence was provided by the GOI which could refute the allegations made in the complaint. However, due note was taken of comments made by the GOI with regard to the allegations contained in the complaint regarding subsidised imports and material injury being suffered by the Community industry.
(4) The Commission officially advised the exporting producers and importers known to be concerned as well as their associations, the representatives of the exporting country concerned, the complainant and the other Community producers, known associations of producers as well as known users, of the initiation of the proceeding. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limits set in the notice of initiation.
(5) It was submitted that more than 45 days had lapsed between the lodging date and the initiation date. Pursuant to Article 10(13) of the basic Regulation, a complaint shall be deemed to have been lodged on the first working day following its delivery to the Commission by registered mail or the issuing of an acknowledgement of receipt by the Commission. The issuing of the acknowledgement of receipt took place on Thursday, 31 October 2002. Considering that Friday, 1 November was a public holiday, the first working day following the issuing of the acknowledgement of receipt by the Commission was Monday, 4 November 2002. Therefore, 4 November 2002 is to be considered as the lodging date of the complaint. The notice of initiation was published on 18 December 2002, which is clearly within 45 days of the lodging of the complaint. Consequently, the notice of initiation was published within the deadline of Article 10(13) of the basic Regulation.
2. Sampling
SAMPLING OF EXPORTERS/PRODUCERS IN INDIA
General
(6) In view of the large number of exporters in India, the Commission decided to apply sampling techniques in accordance with Article 27 of the basic Regulation.
(7) In order to enable the Commission to select a sample, pursuant to Article 27(2) of the basic Regulation, exporters and representatives acting on their behalf were requested to make themselves known within three weeks of the initiation of the proceeding and to provide basic information on their export and domestic turnover, on some particular subsidy schemes, and the names and activities of all related companies. The authorities of India were also contacted in this context by the Commission.
Preselection of the sample
(8) More than 80 companies identified themselves, provided the requested information within the three-week period and had exported the product concerned to the Community during the investigation period. They were considered as cooperating companies and were taken into account in the selection of the sample. These companies represented more than 90 % of the total exports of India to the Community.
(9) The companies not finally retained in the sample were informed that any anti-subsidy duty on their exports would be calculated in accordance with Article 15(3) of the basic Regulation, i.e. without exceeding the weighted average amount of countervailable subsidies established for the companies in the sample.
(10) The companies which did not make themselves known within the deadline set in the notice of initiation were considered as non-cooperating companies.
Selection of the sample
(11) According to Article 27(1) of the basic Regulation, the selection was based on the largest representative volume of exports that could reasonably be investigated within the time available. On this basis eight exporting producers (plus three related companies) were chosen to constitute the sample, in consultation with the representatives of the companies, of the professional association of exporters (Texprocil) and of the GOI. This sample represented 55 % of Indian exports of the product concerned to the Community.
(12) Those companies selected in the sample which fully cooperated during the investigation were attributed their own subsidy margin and individual duty rate.
Individual examination of the companies not selected in the sample
(13) Twenty-one cooperating companies not selected in the sample requested the calculation of individual margins of subsidy. In accordance with Article 27(3) of the basic Regulation, their requests could not be accepted in the current investigation since the number of exporters was so large that individual examinations would have been unduly burdensome and prevented completion of the investigation in good time. The 21 companies in question were informed of this fact accordingly.
SAMPLING OF COMMUNITY PRODUCERS
(14) In view of the large number of Community producers supporting the complaint, and in accordance with Article 27 of the basic Regulation, the Commission announced in the notice of initiation its intention to select a sample of Community producers, based on the largest representative volume of production and sales of the Community industry, which could be reasonably investigated within the time available. For these purposes, the Commission requested companies to provide information concerning production and sales for the like product.
(15) On the basis of the replies received, the Commission selected five companies in three Member States. In the selection, the production and sales volume were considered aiming at covering the most representative market size.
(16) Two out of these five companies, which were among the smaller ones, were not able to submit a complete list of all transactions to unrelated customers during the investigation period and were therefore considered to be only partially cooperating.
3. Investigation
(17) A number of exporting producers in the country concerned, as well as Community producers, Community users and importers, made their views known in writing. All parties who so requested within the set time limit and showed that there were particular reasons why they should be heard were granted the opportunity to be heard.
(18) Questionnaire replies were received from the five sampled complainant Community producers, from a representative sample of eight exporting producers (plus three related companies) in India and one unrelated importer in the Community.
(19) The Commission sought and verified all the information it deemed necessary for the purpose of a determination of subsidy, injury, causality and Community interest. Verification visits were carried out at the premises of the following companies:
Community producers:
- Bierbaum Unternehmensgruppe GmbH & Co. KG, Germany;
- Descamps SA, France;
- Gabel industria tessile SpA, Italy;
- Vanderschooten SA, France;
- Vincenzo Zucchi SpA, Italy;
Unrelated importers in the Community:
- Richard Haworth, United Kingdom;
Exporters/producers in India:
- The Bombay Dyeing and Manufacturing Co., Mumbai
- Brijmohan Purusottamdas, Mumbai
- Divya Textiles, Mumbai
- Jindal Worldwide Ltd, Ahmedabad (related to Texcellence Overseas)
- Mahalaxmi Exports, Ahmedabad
- Nowrosjee Wadia & Sons, Mumbai (related to The Bombay Dyeing and Manufacturing Co.)
- N. W. Exports Limited, Mumbai (related to The Bombay Dyeing and Manufacturing Co.)
- Pasupati Fabrics, New Delhi
- Prakash Cotton Mills Pvt., Ltd, Mumbai
- Texcellence Overseas, Mumbai
- Vigneshwara Exports Limited, Mumbai
(20) The investigation of subsidisation and injury covered the period from 1 October 2001 to 30 September 2002 (investigation period or IP). The examination of trends relevant for the assessment of injury covered the period from 1999 to the end of the IP (period considered).
(21) Given the need to examine further certain aspects of subsidy, injury, causality and Community interest, no provisional anti-subsidy measures were imposed on cotton-type bedlinen originating in India.
B. Product concerned and Like Product
1. Product concerned
(22) The product concerned is bedlinen of cotton fibres, pure or mixed with man-made fibres or flax (flax not being the dominant fibre), bleached, dyed or printed originating in India, currently classifiable within CN codes ex 6302 21 00 (TARIC codes 6302 21 00 81, 6302 21 00 89 ), ex 6302 22 90 (TARIC code 6302 22 90 19 ), ex 6302 31 10 (TARIC code 6302 31 10 90 ), ex 6302 31 90 (TARIC code 6302 31 90 90 ) and ex 6302 32 90 (TARIC code 6302 32 90 19 ). Bedlinen includes bed sheets (fitted or flat), duvet covers and pillow covers, packaged for sale either separately or in sets. All product types are similar in their essential physical characteristics and in their uses. They are therefore considered to be one product.
2. Like product
(23) The product manufactured and sold in the domestic market of India and that exported to the Community from India as well as the product manufactured and sold in the Community by the Community producers were found to have basically the same physical characteristics as well as the same uses and are therefore considered as like products within the meaning of Article 1(5) of the basic Regulation.
C. SUBSIDISATION
1. Introduction
(24) On the basis of the information contained in the complaint and the replies to the Commission's questionnaire, the following six schemes, which allegedly involve the granting of export subsidies, were investigated:
(i) Duty Entitlement Passbook (DEPB) scheme
(ii) Duty-Free Replenishment Certificate (DFRC)
(iii) Export Promotion Capital Goods (EPCG) scheme
(iv) Advance Licence Scheme (ALS)
(v) Export Processing Zones/Export Oriented Units (EPZs/EOUs)
(vi) Income Tax Exemption (ITES).
(25) The schemes (i), (ii), (iii), (iv) and (v) specified in recital 24 are based on the Foreign Trade (Development and Regulation) Act 1992 (No 22 of 1992) which entered into force on 7 August 1992 (Foreign Trade Act). The Foreign Trade Act authorises the GOI to issue notifications regarding the export and import policy. These are summarised in the "Export and Import Policy" documents, which are issued by the Ministry of Commerce every five years and updated regularly. Two Export and Import Policy documents are relevant to the IP of this case; i.e. the five-year plan relating to the period 1 April 1997 to 31 March 2002, and the five-year plan relating to the period 1 April 2002 to 31 March 2007. In addition, the GOI also sets out the procedures governing India's foreign trade policy in the Handbook of Procedures - 1 April 2002 to 31 March 2007 (Volume 1). A similar Handbook of Procedures exists for the period 1 April 1997 to 31 March 2002. The Handbook of Procedures is also updated on a regular basis.
(26) It was established at the verification visit to the GOI that there have been no significant changes in relation to the alleged subsidy schemes in the Export and Import Policy during the IP. It is clear from the Export and Import Policy covering the period 1 April 2002 to 31 March 2007 that licences/certificates/permissions issued before the commencement of this Policy will continue to be valid for the purpose for which such licence/certificate/permission was issued unless otherwise stipulated.
(27) References to the legal basis for the investigated schemes (i) to (v) referred to in recital 24 are hereafter made in relation to the Export and Import Policy covering the period 1 April 2002 to 31 March 2007 and to the "Handbook of Procedures - 1 April 2002 to 31 March 2007" (Volume 1).
(28) Income Tax Exemption (vi), specified in recital 24, is based on the Income Tax Act of 1961 which is amended yearly by the Finance Act.
2. Duty Entitlement Passbook (DEPB) Scheme
(a) Legal basis
(29) The DEPB entered into force on 1 April 1997 by means of Customs Notification 34/97. Paragraphs 4.3.1 to 4.3.4 of the Export and Import Policy and paragraphs 4.37 to 4.53 of the Handbook of Procedures contain a detailed description of the scheme. The DEPB is the successor to the Passbook Scheme which was terminated on 31 March 1997. From the outset there were two types of the DEPB, namely DEPB on a pre-export basis and DEPB on a post-export basis. The GOI stressed that the DEPB on a pre-export basis was abolished on 1 April 2000 and therefore the scheme is not relevant for the IP. It was established that none of the companies enjoyed any benefit under DEPB on a pre-export basis. Therefore, it is not necessary to establish the countervailability of DEPB on a pre-export basis.
(b) Eligibility
(30) The DEPB on a post-export basis is available to manufacturer-exporters or merchant-exporters (i.e. traders).
(c) Practical implementation of DEPB on post-export basis
(31) Under this scheme, any eligible exporter can apply for credits, which are calculated as a percentage of the value of exported finished products. Such DEPB rates have been established by the Indian authorities for most products, including the product concerned, on the basis of standard input-output norms (SION). A licence stating the amount of credit granted is issued automatically upon receipt of the application.
(32) DEPB on a post-export basis allows for the use of such credits to offset applicable customs duties on any subsequent imports except for goods the importation of which is restricted or prohibited. Imported goods for which such credits are used can be sold on the domestic market (subject to sales tax) or used otherwise.
(33) DEPB licences are freely transferable and, as a consequence, are frequently being sold. The DEPB licence is valid for a period of 12 months from the date of granting of the licence. The company has to pay to the relevant authority a fee equivalent to 0,5 % of the DEPB credit received.
(d) Conclusions on DEPB on post-export basis
(34) When a company exports goods, it is granted a credit which can be used to offset amounts of customs duties due on future imports of any goods or can just be sold.
(35) The credit is automatically calculated on the basis of a formula, using SION rates, independently of whether inputs have been imported, duty has been paid on them or whether the inputs were actually used for export production and in what quantities. Indeed a company can claim a licence on the basis of past exports irrespective of whether it makes any imports or purchases goods from other sources. The DEPB credits are considered to be a financial contribution because they are a grant. They involve a direct transfer of funds, as they can either be sold and converted into cash, or used to offset import duties, thus causing the GOI to forego revenue which is otherwise due.
(36) Texprocil argued that where the exporter has actually imported inputs that are used in the manufacture of the export products and used the DEPB credits for paying the customs duty on such imported inputs, no countervailable benefit can be said to have devolved on the exporter under the DEPB.
(37) In this context, Article 2(1)(a)(ii) of the basic Regulation provides for an exception for, inter alia, drawback and substitution drawback schemes which conform to the strict rules laid down in Annex I(i), Annex II (definition and rules for drawback) and Annex III (definition and rules for substitution drawback).
(38) However, in this case, the exporter is under no obligation actually to consume the goods imported free of duty in the production process and the amount of credit is not calculated in relation to actual inputs used.
(39) Furthermore, there is no system or procedure in place to confirm which inputs are consumed in the production process of the exported product or whether an excess payment of import duties occurred within the meaning of Annex I(i) and Annexes II and III to the basic Regulation.
(40) Lastly, exporters are eligible for the DEPB benefits regardless of whether they import any inputs at all. In order to obtain the benefit, it is sufficient for an exporter simply to export goods without demonstrating that any input material was imported. Thus, even exporters which procure all of their inputs locally and do not import any goods which can be used as inputs are still entitled to the DEPB benefits. Hence, the DEPB on a post-export basis does not fulfil the criteria of Annexes I to III.
(41) In the absence of a requirement that imported inputs be consumed in the production process and a system of verification as required by Annex II to the basic Regulation, the DEPB on a post-export basis cannot be considered as a permitted drawback or substitution drawback scheme (Annex III) pursuant to Article 2(1)(a)(ii) of the basic Regulation.
(42) Since the above exception to the subsidy definition for drawback and substitution drawback schemes, referred to in recital 37, therefore does not apply, the issue of excess remission does not arise and the countervailable benefit is the remission of total import duties normally due on all imports.
(43) Based on the above, it was concluded that the GOI, by issuing a freely transferable licence, provides the exporters with a financial contribution under the DEPB. This financial contribution by the GOI confers a benefit upon the DEPB holder since the latter obtains free money which as such would not be available in the commercial market. Therefore, the scheme constitutes a subsidy. As the subsidy can only be obtained by exports, it is contingent in law upon export performance within the meaning of Article 3(4)(a) of the basic Regulation. Therefore, the subsidy is deemed to be specific and thus countervailable.
(e) Calculation of the subsidy amount for the DEPB post-export basis
(44) The benefit for the companies was calculated on the basis of the amount of credit granted in the licences, which have been utilised or transferred during the IP.
(45) In cases where the licences were used to import goods without payment of applicable duties, the benefit was calculated on the basis of total import duties foregone. In cases where the licences were transferred (sold), the benefit was calculated on the basis of the amount of credit granted in the licence (face value) regardless of the sales price of the licence, since the sale of a licence is a pure commercial decision which does not alter the amount of benefit (equivalent to the GOI's transfer of funds) received from the scheme.
(46) The amount of subsidy has been allocated over total exports during the IP in accordance with Article 7 of the basic Regulation. In calculating the benefit, the fees necessarily incurred to obtain the subsidy have been deducted.
(47) It was established for one company that the Export and Import Policy specifically excluded certain goods from the eligibility for DEPB, since the export of such goods was subject to special licences. In this case, for the purpose of calculating the ad valorem subsidy, it was considered appropriate to allocate the benefit of the DEPB (nominator), over the export turnover of the products eligible for DEPB (denominator).
(48) Texprocil and several companies claimed that costs incurred by paying specialised agents, sales commissions and various other expenses should be deducted when calculating the benefit under this scheme. In this regard, it should be noted that using third parties for selling licences is a purely commercial decision which does not alter the amount of credit granted in the licences. In any event, only costs necessarily incurred in order to obtain a subsidy are deductible in accordance with Article 7(1)(a) of the basic Regulation. Since the above costs are not necessary in order to qualify for the subsidy, the claims were rejected.
(49) Texprocil and several companies claimed that the sale of DEPB licences was subject to sales tax, and therefore the benefit should be reduced accordingly. However, under Indian tax law, the tax subject to sales tax is the purchaser, not the seller. The seller merely collects the sales tax on behalf of the relevant authorities. Consequently, this claim was rejected.
(50) Several companies submitted that the sales of their DEPB licences would generate additional income, and thereby increase their overall tax liability, most notably company income tax. Therefore, it was claimed that the benefit obtained by these companies from DEPB transactions should be reduced by the amount of income tax actually payable. The companies also stated that this claim would not be warranted if no income tax was payable during the same period. Moreover, Texprocil claimed that DEPB income is taxable at the uniform rate applicable to the exporters, and that, where the exporter has actually paid income tax on the DEPB benefits granted by the GOI, the benefit received is lessened to the extent of income tax.
When addressing these arguments it is first recalled that a DEPB credit constitutes a grant at a given moment of time. According to the information available, it can indeed not be excluded that these grants, at a later stage, may increase a company's overall tax liability. However, this would be a future event, and will depend on many factors, most of which are influenced by commercial decisions made by the company itself. Such factors do not only relate to pricing and sales issues, but also concern other issues that determine overall tax liability, such as decisions concerning depreciation rates, the carrying forward of losses and many other factors. All these decisions influence the tax bracket that will finally be applied to the company in a specific tax year. It is therefore not possible to determine exactly to what extent benefits obtained from DEPB sales have contributed to the applicable tax rate. In addition, had the company concerned used their DEPB licences for the purpose for which they are in fact intended, namely the import of inputs, it would indeed have lowered its cost and not increased its income, which may again have a different impact on taxation.
It is therefore clear that the granting of DEPB credits and eventual later taxation thereof constitute two independent actions by the GOI. It is not for the investigating authority to attempt to reconstruct the situation which would prevail in the presence or absence of taxation. In any event, this would not effect the calculation of the amount of subsidy established during the IP.
Consequently, these claims were rejected.
(51) Eight companies in the sample benefited from this scheme during the IP and obtained subsidies ranging from 1,45 % to 8,44 %.
3. Duty-Free Replenishment Certificate (DFRC)
(a) Legal basis
(52) The legal basis for this scheme is contained in paragraphs 4.2.1 to 4.2.7 of the Export and Import Policy and paragraphs 4.31 to 4.36 of the Handbook of Procedures.
(b) Eligibility
(53) The DFRC is issued to a merchant-exporter or manufacturer-exporter for the imports of inputs used in the manufacture of goods without payment of applicable duties.
(c) Practical implementation
(54) DFRC is a post-export scheme, which allows replenishment, i.e. duty-free import of inputs having the same technical characteristics, quality and specifications as those used in the export product. The quantity of such inputs is determined on the basis of the SION. Such imported goods can be sold on the domestic market or used otherwise.
(55) Under this scheme, any eligible exporter can apply for a certificate. DFRC is issued for import of inputs as per SION as indicated in the shipping bills.
(56) The DFRC only covers the inputs as prescribed in the SION. The technical characteristics, quality and specification of inputs allowed to be replenished have to match those of the inputs used in the export product.
(57) DFRCs are freely transferable. The validity of the DFRC is 18 months.
(d) Conclusion on the scheme
(58) When a company exports goods, it is granted a certificate which can be used to offset amounts of customs duties due on future imports of inputs physically incorporated in the exported goods or can just be sold.
(59) The certificates are considered to be a financial contribution because they are a grant. They involve a direct transfer of funds, as they can either be sold and converted into cash, or used to offset import duties, thus causing the GOI to forego revenue which is otherwise due.
(60) The GOI and Texprocil argued that the DFRC is a legitimate substitution drawback scheme, since the scheme provides for replenishment of inputs used in the exported product. Since the quantity, quality and technical characteristics and specifications match with inputs used in the export product, the scheme is in the view of the GOI and Texprocil permissible under the Agreement on Subsidies and Countervailing Measures (ASCM). Texprocil also argued that, when assessing whether it is a legitimate substitution drawback scheme, the relevant condition is to look at what is being imported and not who is importing. It was further argued that in so far as the Government is concerned, no additional benefit is granted.
(61) Article 2(1)(a)(ii) of the basic Regulation provides for an exception for, inter alia, drawback and substitution drawback schemes which conform to the strict rules laid down in Annex I(i), Annex II (definition and rules for drawback) and Annex III (definition and rules for substitution drawback).
(62) It should be stressed that drawback systems imply the refund of duties paid on imported inputs, which have been consumed in the production process of an exported product. However, in case of DFRC, there need have been no import of inputs for which duties have been paid or exempted for in the first place.
(63) Drawback systems can allow for the ex post refund or drawback of import charges on inputs which are consumed in the production process of another product, including situations where the export of the latter product contains domestic inputs having the same quality and characteristics as those substituted for the imported inputs ("substitution drawback" schemes). It would for instance be allowed for a company, in case of a shortage of imported inputs, to use domestic inputs and incorporate these in the exported goods, and then at a later stage import the corresponding quantity of inputs free of any duty. In this context, the existence of a verification system or procedure is important because it enables the government of the exporting country to ensure and demonstrate that the quantity of inputs for which drawback is claimed does not exceed the quantity of similar products exported, in whatever form, and that there is no drawback of import charges in excess of those originally levied on the imported inputs in question.
(64) Under DFRC, which is a post-export scheme as mentioned in recital 54, there is a built-in obligation to import only inputs that were consumed in the production of the exported goods. These inputs have to be of the same quantity and characteristics as the domestic inputs used in the exported goods. On this basis, the DFRC presents some of the characteristics of a substitution drawback scheme according to Annex III to the basic Regulation. The investigation established, however, that there was no system or procedure in place to confirm whether and which inputs are consumed in the production process of the exported product or whether an excess benefit of import duties occurred within the meaning of Annex I(i), and Annexes II and III to the basic Regulation.
(65) Furthermore, the DFRC is, as mentioned above in recital 57, freely transferable. This implies that the exporter, which is granted a certificate to offset amounts of customs duties due on future imports of inputs, is under no obligation actually to consume the imported inputs in the production process or even actually to use the certificate to import inputs (i.e. there is no actual user condition). Instead, the exporter may decide to sell the certificate to importers. Consequently, the DFRC cannot be considered as a substitution drawback scheme in accordance with the basic Regulation(3).
(66) Based on the above, the GOI, by issuing a certificate which is freely transferable, provides exporters with a financial contribution. In these circumstances, the certificates actually represent a direct grant from the GOI to the exporters concerned.
(67) In conclusion, this financial contribution by the GOI confers a benefit upon the DFRC holder, since the latter obtains free money, which as such would not be available in the commercial market. Therefore, the scheme constitutes a subsidy. As the subsidy can only be obtained by exports, it is contingent in law upon export performance within the meaning of Article 3(4)(a) of the basic Regulation. Therefore, the subsidy is deemed to be specific and thus countervailable.
(e) Calculation of the subsidy amount
(68) One exporter used the DFRC as a substitution drawback scheme. This company was able to demonstrate that the quantities of imported inputs, which were exempted from import duties, did not exceed the quantities used for the exported goods. Moreover, the company was able to demonstrate that there was no drawback of import charges in excess of those originally levied on the imported inputs in question. It was therefore concluded that, in the case of this company, the exemption of import duties on inputs were in accordance with the provisions of Annexes I to III to the basic Regulation, and therefore no benefit was conferred in the IP.
(69) Two companies sold the certificates they had obtained. Since the DFRC only covers the inputs given in the SION, it would have been appropriate to establish the benefit using the same methodology as under the DEPB, i.e. calculating the benefit as a percentage of the value of the exported finished products. As explained above, such standard rates have been established by the Indian authorities for most products, including the product concerned.
(70) However, the certificate under this scheme does not have a face value, in the same way as the credits under the DEPB scheme. The certificate shows the quantity of inputs permitted for import as well as a maximum total value up to which such inputs can be imported. In this case, given the absence of a specific monetary value on each certificate, it was not possible to establish a benefit of the scheme on the basis of the value or the quantity of the exported goods. In cases where the certificates were transferred (sold), it was therefore considered reasonable to calculate the benefit on the basis of the sales price of the certificate.
(71) The amount of subsidy has been allocated over total exports during the IP in accordance with Article 7 of the basic Regulation.
(72) Two companies benefited from this scheme during the IP. For one company the subsidy obtained was 3,08 %, whereas for the other the subsidy established was negligible.
4. Export Promotion Capital Goods (EPCG) scheme
(a) Legal basis
(73) The EPCG scheme was announced on 1 April 1992. During the IP the scheme was regulated by Customs Notifications Nos 28/97 and 29/97 which entered into force on 1 April 1997. Details of the schemes are contained in Chapter 5 of the 2002 to 2007 Export and Import Policy and Chapter 5 of the Handbook of Procedures.
(b) Eligibility
(74) The scheme is available to "manufacturer exporters with or without supporting manufacturer(s)/vendor(s), merchant exporters tied to supporting manufacturer(s) and service providers" (quoted from Chapter 5.2 of the 2002 to 2007 Export and Import Policy).
(c) Practical implementation
(75) To benefit from the scheme, a company must provide to the relevant authorities details of the type and value of capital goods which are to be imported. Depending on the level of export commitment which the company is prepared to undertake, the company will be allowed to import capital goods at either a zero or reduced rate of duty. In order to meet the export obligation, the imported capital goods must be used to produce exported goods. Upon application by the exporter, a licence authorising the import at preferential rates is issued. An application fee is payable to obtain the licence.
(76) The EPCG licence holder can also source the capital goods himself indigenously. In such a case, the indigenous manufacturer of capital goods may avail himself of the benefit for duty-free import of components required for manufacture of such capital goods. Alternatively, the indigenous manufacturer can claim the benefit of deemed export in respect of supply of capital goods to an EPCG licence holder.
(77) There is an export obligation in order to be eligible for the EPCG scheme. The export obligation must be fulfilled by the export of goods manufactured or produced by using the capital goods imported under the scheme. The export obligation involves a requirement to export more than the average level of exports of the same product achieved by the company in the preceding three licensing years.
(78) Recently, there has been a change in the conditions of the scheme in respect of the calculation of the export obligation. However, this is only applicable for licences issued after 1 April 2003, i.e. not covered by the IP. Under the new rules, the companies will have eight years to fulfil the export obligation (the value of exports must be at least six times the value of the total duty exemption for imported capital goods).
(d) Conclusion on EPCG scheme
(79) The payment by an exporter of a reduced or zero rate of import duty constitutes a financial contribution by the GOI, since revenue otherwise due is foregone and a benefit is conferred on the recipient by lowering the duties payable or fully exempting him from paying the import duties. Hence, the EPCG scheme is a subsidy.
(80) The licence cannot be obtained without a commitment to export goods. As the subsidy is contingent in law upon export performance within the meaning of Article 3(4)(a) of the basic Regulation, it is deemed to be specific and thus countervailable.
(81) It was argued that the scope of the term "input" in Annex I(i) to the basic Regulation also covers capital goods, since capital goods are essential inputs for production, without the use of which no final product could ever come into existence. It was further argued that it is only with the use of capital goods that the raw materials are converted into finished goods, and that the depreciation charged on the capital goods represents the value of capital goods used in the production of final products. Therefore, duty exemption on capital goods used in the production of the exported product should be treated as duty exemption on inputs used in the production of the exported products and such exemption should not be treated as countervailable benefit within the meaning of the basic Regulation.
In reply to these arguments, it is considered that capital goods do not constitute "inputs" within the meaning of the basic Regulation because they are not physically incorporated into the exported products. Consequently, the above arguments are rejected.
(e) Calculation of the subsidy amount
(82) The benefit to the companies has been calculated on the basis of the amount of unpaid customs duty on imported capital goods by spreading this amount across a period which reflects the normal depreciation period of such capital goods in the industry of the product concerned pursuant to Article 7 of the basic Regulation. In accordance with the established practice, the amount so calculated which is attributable to the IP has been adjusted by adding interest during the IP in order to reflect the value of the benefit over time and thereby establish the full benefit of this scheme to the recipient. Given the nature of the subsidy, which is equivalent to a one-time grant, the commercial interest rate during the IP in India (estimated at 10 %) was considered appropriate. The amount of subsidy was then allocated over total exports during the IP, in accordance with Article 7 of the basic Regulation.
(83) In respect of the calculation of the subsidy amount, it was argued that a subsidy calculation, based on the "benefit to the producer" perspective, requires the allocation of the subsidy amount (unpaid customs duties) attributable to the IP over the whole production (domestic plus exports) of the product concerned. It was further argued that companies which also have domestic sales of bedlinen used the same capital goods for their entire production of bedlinen.
In reply to this, it is recalled that this scheme is contingent solely upon export performance. In accordance with Article 7(2) of the basic Regulation, the benefit for this scheme should therefore be allocated over export turnover only since the subsidy is granted by reference to a certain value of exports of goods within a certain time period. Therefore, the claim that benefits under the scheme should be allocated over total turnover is rejected.
(84) Three companies benefited from this scheme during the IP. Two companies obtained subsidies of 0,38 % and 2,0 % respectively, whereas for the third company the subsidy established was negligible.
5. Advance Licence Scheme (ALS)
(a) Legal basis
(85) The ALS has been in operation since 1977 to 1978. The scheme is specified in paragraphs 4.1.1 to 4.1.7 of the Export and Import Policy and parts of Chapter 4 of the Handbook of Procedures.
(b) Eligibility
(86) Advance licences are available to exporters to enable them to import inputs used in the production of exports, duty-free.
(c) Practical implementation
(87) The volume of imports allowed under this scheme is determined as a percentage of the volume of exported finished products. The advance licences measure the units of authorised imports in terms of their quantity as well as in terms of their value. In both cases, the rates used to determine the allowed duty-free purchases are established for most products, including the product concerned, on the basis of SION. The input items specified in the advance licences are items used in the production of the relevant finished products.
(88) Advance licences can be issued for:
(i) "physical exports: Advance Licences may be issued for physical exports to a manufacturer exporter or merchant exporter tied to supporting manufacturer(s) for import of inputs required for the export product" (quoted from Chapter 4.1.1(a) of the 2002 to 2007 Export and Import Policy).
(ii) intermediate supplies: advance licences may be issued for intermediate supply to a manufacturer-exporter for the inputs required in the manufacture of goods to be supplied to the ultimate exporter/deemed exporter holding another advance licence. The advance licence holder intending to source the inputs from indigenous sources, in lieu of direct import, has the option to source them against advance licences for intermediate supplies. In such cases the quantities purchased on the domestic market are written off from the advance licences, and an intermediate advance licence is issued to the benefit of the domestic supplier. The holder of such intermediate advance licence is entitled to the benefit of importing duty-free the goods needed to produce those inputs delivered to the final exporter.
(iii) deemed exports: advance licences can be issued for deemed export to the main contractor for import of inputs required in the manufacture of goods to be supplied to the categories mentioned in paragraph 8.2. of the Policy. According to the GOI, deemed exports refers to those transactions in which the goods supplied do not leave the country. A number of categories of supply is regarded as deemed exports provided the goods are manufactured in India, e.g. supply of goods to Export Oriented Units, supply of capital goods to holders of licences under the EPCG.
(iv) advance release orders (AROs): the advance licence holder intending to source the inputs from indigenous sources, in lieu of direct import, has the option to source them against AROs. In such cases the advance licences are validated as AROs and are endorsed to the supplier upon delivery of the items specified therein. The endorsement of the ARO entitles the supplier to the benefits of deemed exports drawback and refund of terminal excise duty. In a way, the ARO mechanism refunds taxes and duties to the manufacturer supplying the product, instead of refunding the same to the exporter in the form of drawback/refund of duties. The refund of taxes/duties is available both for indigenous inputs as well as imported inputs.
(89) It was established during the verification that only the ALS referred to under (i) above (physical exports) was used by one manufacturing-exporter during the IP. It is therefore not necessary to establish the countervailability of the categories (ii), (iii) and (iv) of the ALS in the context of this investigation.
(d) Conclusions on the scheme
(90) Only exporting companies are granted licences, which can be used to offset amounts of customs duties on imports. In this regard, the scheme is contingent upon export performance.
(91) As mentioned above, it was established that the ALS, in respect of "physical exports", was used by one investigated company during the IP. The company used the ALS for duty-free imports of inputs for exported goods.
(92) The GOI claimed that the ALS is a quantity-based scheme, and that the inputs allowed under this licence are with reference to the quantity of exports. It was also submitted that whatever inputs are imported under the ALS, the same inputs have to be used in the manufacturing of the exported products or for replenishment of the stock of inputs used in the products already exported. According to the GOI, the imported inputs have to be used by the exporter and no such inputs are allowed to be sold or transferred.
(93) Although the ALS appears to be subject to actual user condition, it was noted that there was no system or procedure in place to confirm whether and which inputs are consumed in the production process of exported goods. The system only shows that the goods imported duty-free have been used in the production process, with no distinction between the destination of the goods (domestic or export market).
(94) However, for the purposes of this investigation, the company in question was able to demonstrate that the quantities of imported materials, which were exempted from import duties, did not exceed the quantities used for the exported goods. It was therefore concluded that, in the case in question, the exemption of import duties on inputs required for the export product were granted in accordance with the requirements of Annexes I to III of the basic Regulation.
(95) Therefore, it is found that there is no benefit granted to the company under this scheme.
6. Export Processing Zones (EPZs)/Export Oriented Units (EOUs)
(a) Legal basis
(96) The EPZ/EOU scheme, which was introduced in 1965, is an instrument under the Export and Import Policy involving export-related incentives. During the IP the scheme was regulated by Customs Notifications Nos 53/97, 133/94 and 126/94. Details of the schemes are contained in Chapter 6 of the 2002 to 2007 Export and Import Policy and Chapter 6 of the Handbook of Procedures.
(b) Eligibility
(97) In principle, companies undertaking to export their entire production of goods and services may be set up under EPZ/EOU scheme. Once the EPZ/EOU status is granted, those companies can avail themselves of certain benefits. There are seven identified EPZs in India. EOUs can be located anywhere in India. They are bonded units under the surveillance of customs officials in accordance with Section 65 of the customs Act. Although companies operating within EOU/EPZ scheme are to export their entire production, the GOI does allow these units to sell a part of their production on the domestic market under certain conditions.
(c) Practical implementation
(98) Companies requesting EOU status or located in an EPZ must apply to the competent authorities. Such application must include details for a period of the next five years, on, inter alia, planned production quantities, projected value of exports, import requirements and indigenous requirements. If the authorities accept the company's application, the terms and conditions attached to the acceptance will be communicated to the company. Companies in EPZs and EOUs can be involved in the production of any product. The agreement to be recognised as a company under the EPZ/EOU scheme is valid for a five-year period. The agreement may be renewed for further periods.
(99) EPZ/EOU businesses are entitled to the following benefits:
(i) exemption from import duties on all types of goods (including capital goods, raw materials and consumables) required for manufacture, production or processing, or in connection therewith;
(ii) exemption from excise duty on goods procured from indigenous sources;
(iii) exemption from income tax normally due on profits realised on export sales in accordance with Section 10A or 10B of the Income Tax Act, for a 10-year period up to 2010;
(iv) reimbursement of central sales tax paid on goods procured locally;
(v) possibility of 100 % foreign equity ownership;
(vi) facility to sell a part of production in the domestic market on payment of applicable duties, as an exception to the general requirement to export the entire production.
(100) EOUs or companies located in an EPZ should maintain, in the specified format, a proper account of all imports concerned and of the consumption and utilisation of all imported materials and of the exports made. These should be submitted periodically, as may be required, to the competent authorities.
(101) The importer must also ensure minimum net foreign exchange earnings as a percentage of exports and export performance as stipulated in the Export and Import Policy. The entire operations of an EOU/EPZ are to be done in customs-bonded premises.
(d) Conclusions on EPZ/EOU
(102) In the present investigation, the EPZ/EOU scheme was used by one company for the import of raw materials, capital goods and for the procurement of goods on the domestic market. In addition, the company used the facility to sell a part of its production in the domestic market. It was found that concessions related to the exemption from customs duties on raw materials and capital goods, as well as the exemption from excise duty on goods procured from indigenous sources and the reimbursement of central sales tax paid on goods procured locally, were used by the company. Therefore, the Commission examined the countervailability of these concessions. In this regard, the EPZ/EOU scheme involves the granting of subsidies as the concessions constitute financial contributions by the GOI, since revenues otherwise due are foregone and a benefit is therefore conferred on the recipient. As the granting of this subsidy is contingent in law upon export performance within the meaning of Article 3(4)(a) of the basic Regulation, it is therefore deemed to be specific and thus countervailable.
(103) As far as raw materials and consumables are concerned, they can qualify for the exemption of Annex I(i) to the basic Regulation only if they are consumed in the production process of the exported product and if there is a verification system in place in order to confirm which inputs are consumed in the production of the exported goods and in what amount. It should be noted that imports of machinery (capital goods) do not fall under this exemption.
(104) Texprocil argued that, for the reasons stated under the EPCG scheme in recital 81, the capital goods imported under the EOU scheme should not be countervailable.
(105) In reply to this, it should be recalled that, for the reasons set out above in relation to the EPCG in recital 81, capital goods do not constitute "inputs" within the meaning of the basic Regulation. Moreover, it has been determined that this scheme is contingent in law solely upon export performance. It is therefore deemed to be specific and thus countervailable.
(106) In the case of excise-duty exemption, it was found that the duty paid on purchases by a non-EOU unit is credited as a drawback (CENVAT) and is utilised towards payment of excise duty on domestic sales. Thus, by exempting excise duty on purchases by an EOU unit, no additional government revenue is foregone and consequently no additional benefit accrues to the EOU.
(107) This is not the case in respect of reimbursement of central sales tax paid on goods procured locally, since this tax is not refundable for companies operating on the domestic market. Paragraph 6.12 of the Export and Import Policy stipulates that EPZs/EOUs are entitled to this reimbursement provided the goods supplied are manufactured in India. In other words, EOUs are, unlike domestic companies, entitled to reimbursement of central sales tax.
(108) Texprocil also argued that central sales tax payable on inputs procured indigenously and used in the production of the export product is an indirect tax within the meaning of Annex I(h) to the basic Regulation, and that, accordingly, exemption of such prior stage cumulative indirect taxes cannot be held to be countervailable.
(109) The illustrative list of export subsidies in Annex I to the basic Regulation stipulates under item (h): "The exemption, remission or deferral of prior-stage cumulative indirect taxes on goods or services used in the production of exported products in excess of the exemption, remission or deferral of like prior-stage cumulative indirect taxes on goods or services used in the production of like products when sold for domestic consumption; provided, however, that prior-stage cumulative indirect taxes may be exempted, remitted or deferred on exported products even when not exempted, remitted or deferred on like products when sold for domestic consumption, if the prior-stage cumulative indirect taxes are levied on inputs that are consumed in the production of the exported product (making normal allowance for waste). This item shall be interpreted in accordance with the guidelines on consumption of inputs in the production process contained in Annex II".
(110) It was argued that Annex I(h) to the basic Regulation provides for the following:
"(i) Prior-stage cumulative indirect taxes on inputs used in the production of export product shall be exempt.
(ii) The only condition is that the prior-stage cumulative indirect taxes should have been levied on those inputs.
(iii) The exemption shall be granted even when such an exemption is not given on like products when sold for domestic consumption."
(111) In this respect, it should be noted that, for the purpose of the basic Regulation, "cumulative" indirect taxes are multi-staged taxes levied, where there is no mechanism for subsequent crediting of the tax, if the goods or services subject to tax at one stage of production are used in a succeeding state of production.
(112) In addressing the arguments, it should be recalled that, in accordance with Export and Import Policy, EOUs are entitled to reimbursement of central sales tax paid on goods procured locally. In other words, it is not a requirement that goods have to be incorporated in the production of exported goods. According to the GOI, the tax subject in case of sales tax is the purchaser, and central sales tax is in general not refundable.
(113) The reimbursement to EOUs of central sales tax paid on goods procured locally is considered a countervailable subsidy for the following reasons. Pursuant to the provisions of Annex I(h) to the basic Regulation, the reimbursement to EOUs (which are required to export) of central sales tax paid on goods procured locally is an excess remission when compared to goods sold for domestic consumption (for which there is no reimbursement of central sales tax). As mentioned above, paragraph 6.12 of the Export and Import Policy stipulates that EPZs/EOUs are entitled to this reimbursement, provided that the goods supplied are manufactured in India. EOUs are, unlike companies selling on the domestic market, entitled to reimbursement of central sales tax. Moreover, it has not been demonstrated that the reimbursement is provided in accordance with the guidelines on consumption of inputs in the production process (Annex II to the basic Regulation). No evidence has been provided that the GOI has in place and applies a system or procedure to confirm whether inputs are consumed in the production of the exported product and in what amounts. In addition, the investigation established that the company concerned procured under central sales tax exemption a number of items which are not consumed in the production of the exported goods. On this basis, it can only be concluded that an excess payment has occurred.
(114) In addition, it was argued that the relevant EOU in this particular case is located in the Indian State of Uttar Pradesh, and that, therefore, the sales tax law applicable for this State should be considered for determining whether non-EOUs located in the particular State are exempt from paying sales tax or not. It was further argued that the Indian legislation, the State Trade Tax Act, provides for granting exemption or concession from payment of tax on the purchase of raw material and packing material used in the manufacture of the exported goods. It was argued that the provision does not distinguish whether the product is exported by an EOU or a non-EOU.
(115) However, it was established at the verification visit to the GOI that central sales tax, and not local sales tax, is applicable in case of inter-State sales. It was explained that central sales tax is, in general, not refundable (apart from the fact that EOUs are entitled to reimbursement of central sales tax paid on goods procured locally). However, with regard to the local sales tax, which is applicable in case of sales within a State in India, the local government decides on the granting of exemptions. The fact that a particular State may grant certain different exemptions or concession from payment of tax is not relevant when assessing the countervailability of the scheme in respect of reimbursement of central sales tax paid on goods procured locally. This argument is therefore rejected.
(116) In conclusion, as the subsidy is tied to an EPZ/EOU, it is contingent in law upon export performance within the meaning of Article 3(4)(a) of the basic Regulation. Therefore, the subsidy is deemed to be specific and thus countervailable.
(e) Calculation of the subsidy amount
Exemption from import duties on raw materials
(117) During the verification visit, the nature and quantities of imported materials were verified. The investigation established that the company sourced raw materials domestically, and imported only small quantities. The question of whether an excess remission of import duty has occurred did therefore not arise.
Exemption from import duties on capital goods
(118) Unlike raw materials, capital goods are not physically incorporated into the finished goods. For calculation purposes, the amount of duty foregone is equivalent to a grant on each import of capital good. Consequently, the benefit to the investigated company has been calculated on the basis of the amount of unpaid customs duty on imported capital goods by spreading this amount across a period which reflects the normal depreciation period of such capital goods in the industry of the product concerned in accordance with Article 7 of the basic Regulation. The amount so calculated which is then attributable to the IP has been adjusted by adding interest during the IP in order to reflect the value of the benefit over time and thereby establish the full benefit of this scheme to the recipient. Given the nature of the subsidy, which is equivalent to a one-time grant, the commercial interest rate during the IP in India (estimated at 10 %) was considered appropriate. The total amount of subsidy has then been allocated over total export turnover of the EOU in accordance with Article 7 of the basic Regulation. Based on this calculation, the company obtained a subsidy of 6,85 %.
Reimbursement of central sales tax paid on goods procured locally
(119) The benefit was calculated on the basis of the amount of central sales tax refundable for purchases during the IP. The amount of subsidy has been allocated over total exports during the IP in accordance with Article 7 of the basic Regulation. Based on this, it is found that the company obtained a subsidy of 1,75 %.
7. Income Tax Exemption (ITES)
(a) Legal basis
(120) The Income Tax Act 1961 is the legal basis under which Income Tax Exemption operates. The Act, which is amended yearly by the Finance Act, sets out the basis for the collection of taxes as well as various exemptions/deductions which can be claimed. Among the exemptions which can be claimed by firms are those covered by Sections 10A, 10B and 80HHC of the Act, which provide an income tax exemption on profits from export sales.
(b) Eligibility
(121) Exemption under Section 10A can be claimed by firms located in free trade zones. Exemption under Section 10B can be claimed by EOUs. Exemption under Section 80HHC can be claimed by any firm which exports goods.
(c) Practical implementation
(122) To benefit from the abovementioned tax deductions/exemptions, a company must make the deduction/exemption claim when submitting its tax return to the tax authorities at the end of the tax year. The tax year runs from 1 April to 31 March. The tax return must be submitted to the authorities by the following 30 November. The final assessment by the authorities can take up to three years after submitting the tax return. A company may only claim one of the deductions available under the three sections mentioned above.
(d) Conclusion on Income Tax Exemption
(123) Annex I(e) to the basic Regulation refers to the "full or partial exemption ... related to exports, of direct taxes" as constituting an export subsidy. Under the Income Tax Exemption, the GOI confers a financial contribution to the company by foregoing government revenue in the form of direct taxes which would be due if the income tax exemptions were not claimed by the company. This financial contribution confers a benefit to the recipient by reducing its income tax liability.
(124) The subsidy is contingent in law upon export performance within the meaning of Article 3(4)(a) of the basic Regulation, since it exempts profits from export sales only, and is therefore deemed to be specific.
(125) The GOI and Texprocil argued that Income Tax Exemption in respect of Section 80HHC is gradually being phased out starting from the financial year April 2001 to March 2002. It was argued that it was therefore not appropriate to countervail this scheme.
(126) It was also argued that in terms of Subsection 1B of Section 80HHC of the Income Tax Act, a specified percentage of export profits are exempt during the relevant years as given in the table below:
TABLE
(127) In respect of the arguments made, it was established during the verification that the programme was still in force at the end of the IP. Indeed, the actual rate of export income being exempted from income tax was 70 % and the scheme will still continue to confer benefits to exporting producers in India at the time of the imposition of definitive measures. In accordance with Article 15 of the basic Regulation, countervailing duties should be imposed unless the subsidy or subsidies are withdrawn or it has been demonstrated that the subsidies no longer confer any benefit on the exporters involved. Since the Income Tax Exemption under Section 80HHC clearly meets the criteria for the imposition of duties under Article 15 of the basic Regulation, any benefits from it should be included in the total amount of countervailing duty.
(e) Calculation of the subsidy amount
(128) Claims for benefit under Sections 10A, 10B and 80HHC are made when submitting a tax return at the end of the tax year. As the tax year in India runs from 1 April to 31 March, the benefit was calculated on the effective income tax exemption claimed during the tax year ending during the IP (i.e. 1 April 2001 to 31 March 2002). This tax claim had to be filed on 30 September 2002 at the latest, i.e. at the time of the end of the IP. The benefit to the exporters has therefore been calculated on the basis of the difference between the amount of taxes normally due with and without the exemption. The rate of corporate tax applicable during this tax year was 35,7 %. The amount of subsidy has been allocated over total exports, in accordance with Article 7(2) of the basic Regulation.
(129) Although it was submitted that the subsidy benefit should be treated as nil, alternative methods were suggested for the purpose of the calculation of the subsidy margin, notably in relation to the applicable tax rates.
(130) In this regard, it is noted that Article 5 of the basic Regulation provides that the amount of countervailable subsidies should be calculated in terms of the benefit conferred on the recipient which is found to exist during the IP for subsidisation. As mentioned above, the benefit was calculated on the basis of the amount of taxable profit normally earned in the tax year 2001 to 2002 (i.e. 1 April 2001 to 31 March 2002) which ended halfway through the IP. During the tax year 2001 to 2002 (which is the assessment year 2002 to 2003), the actual rate of export income (i.e. the percentage of export income eligible for the tax exemption) being exempted from income tax was 70 %. For the subsequent tax year (i.e. from 1 April 2002 to 31 March 2003), the actual rate of export income being exempted from income tax is 50 %. It is considered that, as part of this latter tax year falls within the IP of this proceeding, it is appropriate to make the calculation of the amount of countervailable subsidies on the basis of a pro rata average of the two rates which applied in the IP, i.e. 60 %. Appropriate adjustments have accordingly been made to the amount of subsidy for the companies which availed of this scheme.
(131) It was also claimed that the DEPB income should be deducted from the amount of taxable income. It was argued that, in the absence of DEPB income, there would have been no taxable profit derived from export sales. This argument is without merit. Even if its inclusion was appropriate, the DEPB benefit is given to eligible firms in the form of a cash grant (i.e. a direct transfer of funds), while the income tax exemption applies to government revenue "otherwise due" being foregone. Although the DEPB benefits clearly form part of a firm's total revenue, the two subsidies result from two independent actions by the GOI. It is not for the investigating authority to attempt to reconstruct the situation which would prevail in the absence of certain subsidies. In any event, a firm's taxable profit, on exports or on all transactions, is derived from a comparison of its total revenue and costs, which are made up of many different elements, and which result from all sorts of commercial decisions and market forces. It would be unreasonable to select one element (e.g. the DEPB income) and then set this aside from the calculation. In any event, as explained above, the benefit was calculated for all companies on the effective income tax exemption claimed during the tax year ending during the IP (i.e. 1 April 2001 to 31 March 2002).
(132) Six companies benefited from this scheme during the IP. Five companies obtained subsidies ranging from 0,32 % to 3,70 %, whereas for the sixth company the subsidy established was negligible.
8. Amount of countervailable subsidies
(133) The amount of countervailable subsidies in accordance with the provisions of the basic Regulation, expressed ad valorem, for the investigated exporting producers ranged ranging between 3,09 % and 10,44 %.
(134) In accordance with Article 15(3) of the basic Regulation, the subsidy margin for the cooperating companies not included in the sample, calculated on the basis of the weighted average subsidy margin established for the cooperating companies in the sample, is 7,67 %. Given that the level of the overall cooperation for India was high (above 90 %), the residual subsidy margin for all other companies was set at the level for the company with the highest individual margin, i.e. 10,44 %.
TABLE
(135) In respect of a sampled company, i.e. Bombay Dyeing and Manufacturing Co. Ltd, it was established that this company used licences obtained by two related companies: Nowrosjee Wadia & Sons Limited & N. W. Exports Limited. The investigation revealed that the two related companies exported products produced by Bombay Dyeing and Manufacturing Co. Ltd. The related companies should therefore be subject to the subsidy margin established for Bombay Dyeing and Manufacturing Co. Ltd.
D. COMMUNITY INDUSTRY
(136) Within the Community, the product concerned is manufactured by:
- producers on behalf of which the complaint was lodged; all producers which were selected in the sample (the sampled Community producers) were also complainants,
- other Community producers which were not complainants and did not cooperate. One producing company opposed to the proceeding represented less than 1 % of the Community production.
(137) The Commission has assessed whether all the above companies could be considered as Community producers within the meaning of Article 9(1) of the basic Regulation. The output of all the above companies constitutes the Community production.
(138) The Community industry is composed of 29 Community producers which cooperated with the Commission, among which are also the five sampled Community producers. These producers account for 45 % of the Community production of cotton-type bedlinen. They are therefore deemed to constitute the Community industry within the meaning of Articles 9(1) and 10(8) of the basic Regulation.
E. INJURY
1. Preliminary remarks
(139) In view of the fact that sampling had been used with regard to the Community industry, injury has been assessed on the one hand, on the basis of information collected at the level of the entire Community industry, for trends concerning production, productivity, sales, market share, employment and growth. On the other hand, information collected at the level of the sampled Community producers was analysed, as regards trends concerning prices and profitability, cash flow, ability to raise capital and investments, stocks, capacity, utilisation of capacity, return on investment and wages.
2. Community consumption
(140) Community consumption was established on the basis of production volumes of the Community producers according to Eurocoton, minus exports based on Eurostat data, plus imports from India and the other third countries, also based on Eurostat. Between 1999 and the IP, the apparent Community consumption increased steadily from 173651 tonnes to 199881 tonnes, i.e. by 15 %.
3. Imports from the country concerned
(a) Volume and market share
(141) Imports of cotton-type bedlinen from India into the Community decreased in volume from 15700 tonnes in 1999 to 14300 tonnes in the IP, i.e. by 9 % over the period considered. After a slight increase between 1999 and 2000, imports went down in 2001. The corresponding market share decreased from 9,1 % in 1999 to 7,2 % in the IP.
(142) While it is true that imports from India lost market share throughout the period considered, the level of these imports is substantially above the levels set out in Article 10(11) of the basic Regulation. The significance of these imports is also illustrated by comparing them to the market share of the Community industry. The market share held by the imports originating in India amounts to more than one third of the Community industry's market share. It is also worth noting additionally that in the first nine months of 2003 import volumes have increased by more than 11 % on a year-on-year basis.
(b) Prices
(143) Average prices from India remained stable during 1999 and 2000 at around EUR 5,65/kg. In 2001 they rose to around EUR 5,80/kg and dropped subsequently in the IP to around EUR 5,50/kg, i.e. by 5 %.
(c) Price undercutting
(144) For the purposes of analysing price undercutting, the weighted average sales prices per product type of the Community industry to unrelated customers on the Community market were compared to the corresponding weighted average export prices of the imports concerned. The comparison was made after deduction of rebates and discounts. The prices of the Community industry were adjusted to an ex-works basis. The prices of the imports concerned were determined on a cif basis with an appropriate adjustment for the customs duties and post-importation costs.
(145) This comparison showed that during the IP the products concerned originating in India were sold in the Community at prices which undercut the Community industry's prices, when expressed as a percentage of the latter, by between 26 and 77 %. In more than 75 % of the cases, undercutting margins amounted to between 60 and 70 %.
4. Situation of the Community industry
(146) It was analysed whether the Community industry was still in the process of recovering from the effects of past subsidisation or dumping, but no evidence was found that this should be the case.
(147) It was submitted that the Community industry did not suffer material injury as it was protected by the presence of quotas. It is indeed true that during the IP there were quotas in force. Under international law, these quotas have their legal basis in the WTO Agreement on Textiles and Clothing. They will be phased out by 31 December 2004. It should be noted that these quotas have not been fully used during the IP. The quantities which can be imported under the quotas correspond to substantial shares of the Community market. Indeed, on the basis of consumption figures in the IP the annual 2002 quota corresponds in the case of India to a market share of around 12 %. It should also be noted that the determination of the level of these textile quotas is the result of straightforward negotiations which are outside the analytical framework provided for under the basic Regulation. Whilst it cannot be excluded that quotas might have an effect on the situation of the Community industry, the mere presence of quotas does not prevent the Community industry from suffering injury. The analysis of the figures in the present case shows that the Community industry suffered material injury during the IP despite the presence of the quotas. In fact, the situation of the Community industry deteriorated even though the Indian exporters did not fully exploit their allocated quota during the IP. The submission is therefore rejected.
(a) Data relating to the Community industry as a whole
Production, employment and productivity
(148) The production volume of the Community industry increased slightly between 1999 and the IP, from 37700 tonnes to 39500 tonnes, i.e. by 5 %.
(149) Employment remained basically stable around 5500 employees. Therefore, productivity increased from 6,8 tonnes/employee in 1999 to 7,2 tonnes/employee during the IP, i.e. by 6 % over the period considered.
Sales volume and market share
(150) Over the period considered, the sales volume of the Community industry rose by 4 %, from 36200 tonnes in 1999 to 37800 tonnes during the IP. It had increased to 38300 tonnes in 2001, but decreased in the IP. The turnover generated by these sales increased from EUR 410 million in 1999 to EUR 441 million in 2001 but subsequently decreased by 5 percentage points to EUR 420 million during the IP.
(151) Despite the fact that consumption in the Community market increased by 15 % during the same period, the Community industry's market share actually declined from 20,8 % to 18,9 % during the IP. The market share fluctuated around 20 % between 1999 and 2001 and decreased by 1,5 percentage points between 2001 and the IP.
Growth
(152) While Community consumption grew by 15 % between 1999 and the IP, the sales volume of the Community industry rose by only 4 %. On the other hand, the volume of total imports rose by 35 % over the same period, with the most significant increase from 120000 tonnes in 2001 to 139000 tonnes during the IP. While the market share of all imports increased by more than 10 percentage points, the market share of the Community industry dropped from 20,8 % to 18,9 %. This means that the Community industry could not participate adequately in the growth of the market between 1999 and the IP.
(b) Data relating to the sampled Community producers
Stocks, capacity and capacity utilisation
(153) As far as stocks are concerned, they fluctuate considerably because most of the production is made in response to orders, thus reducing the possibility to produce purely for stocks. Whilst an increase in stocks was observed at the sampled Community producers, it was considered that in this case stocks were not a relevant indicator of injury due to the industry specific high fluctuations of stocks.
(154) The production capacity was difficult to establish in nearly all sampled Community producers because the production process of the like product is individualised, requiring different combinations of machinery usage. Therefore it is impossible to draw an overall conclusion from the capacity of individual machines concerning the capacity relating to the like product. In addition, part of the production process is subcontracted in some of the sampled Community producers.
(155) However, for those products that go through a printing process, the printing department was considered to be the factor determining the capacity relating to the printed bedlinen in all sampled Community producers. It was found that the capacity utilisation in the printing department decreased steadily from 90 to 82 %.
(156) It was submitted that the evolution of production capacity and capacity utilisation cannot be regarded as supporting a finding of injury. In this respect, and as in previous investigations concerning the same product, it is recognised that it was not possible to draw an overall conclusion concerning the capacity of individual machines. Nevertheless, the analysis of the printing capacity was one of the indications, albeit limited to a part of the like product only, which suggested that there was injury.
Prices
(157) Average prices per kg of the sampled producers increased gradually from EUR 13,3 to EUR 14,2 over the period considered. This should be seen in the light of the fact that this average price covers both high-value and low-value items of the product concerned and that the Community industry has been forced to shift to more sales of higher-value niche products as their sales in the high-volume mass market were taken over by imports from low-price countries. On the other hand, average sales prices per kg of the Community industry overall went up marginally from EUR 11,3 in 1999 to EUR 11,5 in 2001 but dropped subsequently to EUR 11,1 during the IP.
(158) It was submitted that the development of prices cannot be regarded as supporting a finding of injury. This allegation was only based on the fact that sales prices of the sampled companies slightly increased, for which an explanation was, however, provided in recital 157. Furthermore, the price development is only one factor to be analysed. In addition, total unit costs also increased and as the Community industry increasingly moved to the production of high added-value niche products, this commanded a higher price. An increasing average price does therefore not necessarily support a finding of no injury. The submission is therefore rejected.
Investments and ability to raise capital
(159) Between 1999 and 2001, investments were reduced significantly from EUR 7 million to EUR 2,5 million. Between 2001 and the IP, investments remained rather stable and accounted during the IP for only 41 % of the amount invested in 1999.
(160) There was no claim from the Community industry nor indication that the Community industry encountered problems in raising capital for its activity.
Profitability, return on investment and cash flow
(161) Over the period considered, the profitability of the sampled Community producers dropped significantly from 7,7 % in 1999 to 4,4 % in the IP, i.e. by 42 %. The return on investment followed the same trend, falling from 10,5 % in 1999 to 5,9 % during the IP, a reduction by 44 %.
(162) It was submitted that an average profitability of over 5 % in the period considered cannot be considered to support a finding of injury. In this respect, injury has to be established mainly in relation to the IP. During the IP, the profitability was only at 4,4 %. Moreover, profitability had reached 7,7 % in 1999, a year in which the Community industry did not suffer the competition of subsidised imports, and then decreased by 43 % over the period considered, i.e. there was an important decrease over the period considered, due to fierce competition from subsidised imports. As a result, the profitability in the IP fell short of the profitability that could have been reached in the absence of subsidised imports, i.e. 6,5 %.
(163) It was submitted that the decrease in profitability of the sampled companies cannot be attributed to subsidised imports, but to an increase in labour costs and decreased investments. Average labour costs of the sample increased only by 4,2 % in the period considered, hence, this does not explain the profitability decrease. Furthermore, a decrease in investments does not necessarily entail a decrease in profitability. The submission is therefore rejected.
(164) It was submitted that the decrease in the return on investment is a mere reflection of the decrease in investment. However, the return on investment is defined as profits in relation to the value of total assets. Therefore, the decrease in investments would contribute to a decrease in the value of total assets and therefore to an increase in the return on investment. The submission is therefore dismissed.
(165) The cash flow generated by the like product diminished considerably from EUR 16,8 million in 1999 to EUR 11,3 million during the IP. The most significant reduction occurred in 2000, when the cash flow decreased by 27 %. Between 2000 and the IP, it fell by another 5 %.
(166) It was submitted that the Commission considered cash flow as a non-significant indicator. In this respect, it is to be noted that cash flow is indeed influenced by stock variations and therefore an indicator with a limited relevance. Nevertheless, is should be noted that the negative development of cash flow over the period considered is in line with other indicators, confirming the negative evolution of the Community industry, and should not be qualified as insignificant.
Wages
(167) Labour costs increased by 3,3 % over the period considered, from EUR 35,2 million in 1999 to EUR 36,3 million during the IP. As the number of employees remained basically stable, average labour costs also increased, from EUR 29100 to EUR 30300. These increases are nominal increases and are considerably below the increase in consumer prices of more than 7,8 % over the period considered.
(168) It was submitted that wage increases do not point to injury. It is noted, in this respect, that average labour costs of the sampled companies have increased in nominal terms by only 4,2 % throughout the period considered, which, taking the increase in consumer prices into account, means that they decreased in real terms by around 3,6 %.
Magnitude of the amount of countervailable subsidies
(169) Given the volume and the price of the subsidised imports, the impact of the actual margin of subsidy, which is also significant, cannot be considered negligible.
Relevance of indicators
(170) It was submitted that output, productivity and sales volume were increasing and employment was stable, which does not confirm injury. It was also submitted that the analysis of stocks and the ability to raise capital did not confirm injury and that it was therefore meaningless to comment this factor. In this respect it should be noted that injury has to be established on the basis of an examination of numerous factors and that, according to Article 8(5) of the basic Regulation, any one or more of these can necessarily give decisive guidance. The argument is not convincing, as no single indicator is relevant on its own and other indicators show a negative trend. The argument is therefore rejected.
5. Conclusion on injury
(171) The examination of the abovementioned factors shows that between 1999 and the IP the situation of the Community industry deteriorated. The profitability fell significantly over the period considered and the Community industry's market share decreased during the period considered by 9,1 %. Several other injury indicators such as capacity utilisation, cash flow, return on investment and investments also developed negatively. For the sampled Community producers investments were significantly reduced and also the return on investment decreased considerably. Employment remained basically stable. Some indicators showed a positive trend: over the period considered, turnover and sales volumes of the Community industry increased slightly. Productivity and wages increased marginally. As regards average sales prices of the sampled producers, they showed an upward trend over the period considered, which is, however, partly a result of a shift to more sales of higher-value niche products. However, it should be noted that during the same period the Community consumption grew by 15 % whilst the Community industry's share declined by 9,1 %. Moreover, the average sales prices of the Community industry decreased over the period considered.
(172) In the light of the foregoing it is concluded that the Community industry has suffered material injury within the meaning of Article 8 of the basic Regulation.
F. CAUSATION
1. Introduction
(173) In accordance with Article 8(6) of the basic Regulation, the Commission examined whether the subsidised imports originating in India have caused injury to the Community industry to a degree that enables it to be classified as material. Known factors other than the subsidised imports, which could at the same time have injured the Community industry, were also examined to ensure that the possible injury caused by these other factors was not attributed to the subsidised imports.
2. Effect of the subsidised imports
(174) Imports of cotton-type bedlinen from India into the Community decreased overall in volume from 15700 tonnes in 1999 to 14300 tonnes, i.e. by 9 %, in the IP. After a slight increase between 1999 and 2000, imports went down in 2001 and remained stable in the IP. The corresponding market share decreased from 9,1 % in 1999 to 7,2 % in the IP, which is still substantial.
(175) Average prices from India dropped slightly over the period considered. First, they remained stable during 1999 and 2000 at around EUR 5,65/kg. In 2001 they rose to around EUR 5,80/kg but then dropped subsequently in the IP to around EUR 5,50/kg, i.e. by 5 %.
(176) In the analysis of the effect of the subsidised imports, it was found that price is the main element of competition. Indeed it is the buyers who determine themselves the quality and design of the product which they intend to order. It appears from the analysis of the selling-buying process in this case that the importers and traders, before passing an order to an exporting producer in India, specify all the characteristics of the product (design, colour, quality, sizes, etc.) to be delivered, and thus compare the different producers' offers mainly on the basis of price as all other differentiating elements are predetermined in the call for offers, or subsequently result from the importer's own efforts in respect of similar goods (e.g. branding). With respect to prices it was found that the prices of subsidised imports were considerably below those of the Community industry as well as below those of other third-country exporters, and even continued to decrease during the IP. Moreover, it was also found that the Community industry had to withdraw largely from the low-priced market segments, where imports from India are strong, this also underlining the causal link between the subsidised Indian imports and injury suffered by the Community industry.
(177) It was submitted that imports originating in India decreased in absolute and relative terms in a situation without duties, and that they represented a relatively small market share and did therefore not cause injury.
(178) Imports originating in India indeed decreased. Nevertheless, several factors play a role for causation: first, during the IP these imports were subject to a customs duty of 10,2 % (until December 2001) and 9,6 % (from January 2002), while imports originating in Pakistan, the largest supplier, were exempt from that duty from January 2002. Second, as to the size of the market share, the decisive question is not whether a market share is relatively small or not, but whether it is large enough to be able to cause material injury. In this respect, it is noted that the imports were substantial and made at low and subsidised prices undercutting those of the Community industry. It was also found that there was a coincidence in time between these imports and the injury suffered by the Community industry. All these elements played an important role in the conclusion of this chapter, i.e. that the imports have caused material injury.
(179) Given the weight of the imports from India in the Community market, both in terms of volume and in terms of prices, these imports exerted a significant downward pressure on the Community industry in terms of its sales volumes and prices. The lack of sales volume in the low-priced market segments for the Community industry could not be compensated by sales of high-profit niche products, thus resulting in notably reducing market share, investments, profitability and return on investment of the Community industry.
(180) The market share held by the Indian importers during the IP is substantial and well above de minimis levels. The moderate decrease in volume was not such as to lead to a suggestion that Indian exporters were degraded to a peripheral status and on the verge of being eliminated from the Community market. It is therefore concluded that the subsidised imports from India, taken in isolation, caused material injury to the Community industry. Moreover, for illustration purposes only, it appears that the imports from India have increased again by more than 8 % during the first six months of 2003 when compared to the first semester of 2002, indicating that the apparent downward trend is probably not of a lasting nature.
(181) It was submitted that average subsidisation was 8 % and average undercutting was much higher, while prices charged by the sampled producers increased.
(182) In this respect, it should be noted that the export prices did, in many instances, not include any costs for the design and marketing of the bedlinen, as these services were supplied by the importer in the Community. These costs cannot be reasonably estimated for the like product overall, but taking into account any such costs would result in lower undercutting margins. Also, Community industry prices relate in some instances to branded products, which command a higher price. In addition, Article 8(6) of the basic Regulation specifies that the examination shall entail a demonstration that the volume and/or price levels of the subsidised imports are responsible for the impact on the Community industry. Thus, it is not the undercutting which matters ultimately in this context but the price level of the imports. Therefore, it cannot be concluded that the subsidised imports do not cause material injury.
3. Effects of other factors
(a) Allegedly dumped imports originating in Pakistan
(183) Pakistan constantly increased its market share from 20,8 % in 1999 to 24,7 % in the IP, from 36000 tonnes in 1999 to 49400 tonnes during the IP. Given the fact that the average export prices from Pakistan are in the same range as those from India, it must be assumed that Pakistani exports have also caused injury to the Community industry. In this context, it is worth noting that parallel to this anti-subsidy investigation, an anti-dumping investigation has been initiated against the same product originating in Pakistan, which is currently ongoing and which is based on the allegation that Pakistani exports increased their market share by dumping the product concerned into the Community and therefore caused injury to the Community industry. If this is confirmed by the ongoing investigation, appropriate action will be taken in due course.
(184) It is therefore concluded that imports originating in Pakistan are likely to have contributed to the material injury suffered by the Community industry. However, whilst Pakistani imports may also have caused injury, this is not to deny that Indian imports equally caused material injury by themselves.
(b) Imports originating in third countries other than India and Pakistan
(185) Imports originating in third countries other than India and Pakistan increased from 51400 tonnes in 1999 to 75300 tonnes during the IP. Their market share increased from 29,6 % in 1999 to 37,7 %. The largest part of imports in that group of countries originated in Turkey. Given the corporate links between Turkish and Community companies, there is a certain market integration in the form of inter-company trade between Turkish exporting producers and Community operators that suggests that the decision to import from that country is not only linked to the price. This is confirmed by the average prices of the product concerned originating in Turkey during the IP, which were higher by almost 45 % than those of India and by 34 % than those of Pakistan. It is therefore unlikely that imports originating in Turkey broke the causal link between the subsidised imports from India and the injury suffered by the Community industry.
(186) The market shares of the remaining countries individually are significantly lower and do not exceed 3,9 %, and it is thus unlikely that any material injury is to be attributed to those imports from those countries.
(187) The average price of imports originating in countries other than India and Pakistan increased from EUR 7,18/kg in 1999 to EUR 7,47/kg in 2001 and decreased slightly to EUR 7,40/kg during the IP. Nevertheless, during the IP, these prices were around 34 % higher than the prices of imports from India. Consequently, imports from other third countries did not exert a price pressure on the Community industry to the extent that imports from India did. Also the market share of any individual country in that group was below 4 %. It is therefore concluded that imports from other third countries did not break the causal link between the subsidised imports from India and the injury suffered by the Community industry.
(c) Contraction of demand
(188) It was claimed that the demand for bedlinen produced by the Community industry has diminished in volume terms as it focused on the upper end of the market, where less sales volume is made. However, as pointed out before, the total EU consumption of bedlinen did not decrease, but rather increased over the period considered. Most of the Community producers have different product lines for different market segments. The upmarket brands generate high margins but are only sold in very small quantities. In order to maximise the capacity utilisation and to cover the fixed costs of production, the Community industry needs sales of lower-priced market segment in big volumes as well. There is no indication that demand has decreased in that market segment. This segment is on the other hand increasingly taken over by low-priced imports, which cause injury to the Community industry. Given the overall increase in consumption, which is not limited to a particular market segment, the demand situation in the Community can therefore not be seen to break the causal link between the subsidised imports from India and the injury suffered by the Community industry.
(d) Imports by the Community industry
(189) It was submitted that the Community industry imported cotton-type bedlinen from India and thereby contributed to the injury suffered. However, only one of the sampled Community producers actually imported bedlinen from India during the IP and the sales of these imports generated only a small part of total turnover by this producer (around 10 %). Therefore, imports by the Community industry of the product concerned from India cannot be seen to break the causal link between the subsidised imports from India and the material injury suffered by the Community industry as a whole.
(e) Export performance by the Community industry
(190) Exports of the sampled Community producers represented only around 0,5 % of their total sales. Given the negligible part of exports in total activity, this factor cannot have contributed to the injury suffered.
(f) Productivity of the Community industry
(191) The development in productivity has been identified in the injury part of this Regulation. Since productivity increased from 6,8 tonnes/employee in 1999 to 7,2 tonnes/employee in the IP, i.e. by around 6 %, this factor cannot have contributed to the injury suffered.
4. CONCLUSION
(192) With a market share of 7,2 % in the IP, the subsidised imports originating in India were substantial and have been made at low and falling prices during a period in which the Community industry suffered material injury in terms of falling market shares, capacity utilisation, investments, profitability, return on investment and cash flow.
(193) Imports from Pakistan are likely to have also caused injury to the Community industry. However, this fact does not suggest that the injury inflicted by imports from India becomes immaterial. The remaining possible other injury causes, i.e. imports from countries other than India and Pakistan, the demand situation, imports made by the Community industry as well as the export and productivity performance were analysed, but found not to break the causal link between the Indian imports and the injury suffered by the Community industry. The substantial volume and the aggressively low prices of the Indian exports taken in isolation are an independent cause of the material injury suffered by the Community industry. Therefore, none of the other potential injury causes are such as to reverse the fact that there is a genuine and substantial causal link between the subsidised imports and the material injury.
(194) Based on the above analysis, which has properly distinguished and separated the effects of all known factors on the situation of the Community industry from the injurious effects of the subsidised imports, it is concluded that the imports from India have caused material injury to the Community within the meaning of Article 8(6) of the basic Regulation.
G. COMMUNITY INTEREST
1. General remarks
(195) It was examined whether, despite the conclusion on injurious subsidisation, compelling reasons existed that could lead to the conclusion that it was not in the Community interest to adopt measures in this particular case. For this purpose and in accordance with Article 31(1) of the basic Regulation, the impact of possible measures on all parties involved in this proceeding and also the consequences of not taking measures were considered.
2. Community industry
(196) The Community industry suffered material injury. It proved to be a viable industry that was able to compete under fair market conditions. The injurious situation of the Community industry resulted from its difficulty to compete with the low-priced, subsidised imports. The pressure of the subsidised imports has also forced a number of Community producers to cease production of cotton-type bedlinen.
(197) It is considered that the imposition of measures will restore fair competition to the market. The Community industry should then be able to increase the volume and prices of its sales, thereby generating the necessary profit level to justify continued investment in its production facilities.
(198) Should measures not be imposed, the deterioration of the situation of the Community industry would continue. It would not be able to invest in new production capacity and compete effectively with imports from third countries. Some companies would have to cease production and lay off their employees.
(199) It is therefore concluded that the imposition of countervailing measures is in the interest of the Community industry.
3. Importers and users
(200) Importers and users mentioned in the complaint as well as all known associations were sent a questionnaire. The Commission received only one questionnaire reply from an unrelated importer of the product concerned into the Community.
(201) Sales of the product concerned with origin in India constitute less than 20 % of the total turnover of this company. The total profitability of the company is around 10 %. Given the fact that only little information was available, it was not possible to analyse the likely effect of proposed measures on importers and users as a whole. However, taking into account that only moderate duties are envisaged and many countries are not concerned by either anti-dumping duties or countervailing duties, the impact of the imposition of countervailing duties can be considered as minor.
(202) The Commission received no questionnaire replies from users but some arguments were raised in a submission by Ikea and by the Foreign Trade Association.
(203) It was submitted that the Community industry is not in a position to satisfy the whole demand for bedlinen in the Community. It has to be recalled that measures are not intended to prevent imports into the Community but to ensure that they are not made at injurious subsidised prices. Imports from various origins will continue to satisfy a significant part of the Community demand. As only moderate countervailing duties are envisaged and many countries are not concerned by anti-dumping duties or countervailing duties, no shortage of supply is expected.
(204) It was claimed that cheap imports of bedlinen are necessary for the final consumer as well as "institutional" users such as hotels, hospitals, etc., as products at the cheaper end of the range are not produced by the Community producers. The investigation showed that the five sampled Community producers still produce these products. There was no technical reason why the production of these products in the Community could not be increased. In addition, only moderate countervailing duties are envisaged and many countries are not concerned by anti-dumping duties or countervailing duties, which means that alternative sources of supply will still be available.
4. Conclusion on Community interest
(205) On the basis of the above, it is concluded that there are no compelling reasons on the grounds of Community interest why countervailing duties should not be imposed in the present case.
H. COUNTERVAILING MEASURES
1. Injury elimination level
(206) In order to prevent further injury being caused by the subsidised imports, it is considered appropriate to adopt countervailing measures.
(207) For the purpose of determining the level of these duties, account was taken of the subsidy margins found and the amount of duty necessary to eliminate the injury sustained by the Community industry.
(208) Taking into account the average level of profitability obtained by the Community industry in the years 1999 and 2000, it was found that a profit margin of 6,5 % of turnover could be regarded as an appropriate minimum which the Community industry could have expected to obtain in the absence of injurious subsidisation. The necessary price increase was then determined on the basis of a comparison of the weighted average import price, as established for the price undercutting calculations, with the non-injurious price of products sold by the Community industry on the Community market. The non-injurious price has been obtained by adjusting the sales price of the Community industry by the actual loss/profit made during the IP and by adding the abovementioned profit margin. Any difference resulting from this comparison was then expressed as a percentage of the total cif import value.
2. Definitive measures
(209) As the injury elimination level was higher than the countervailing margins established, the definitive measures should be based on the latter. Given that the level of the overall cooperation for India was high (above 90 %), the residual subsidy margin for all other companies was set at the level for the company with the highest individual margin, i.e. 10,4 %.
(210) It was established that two of the companies in the sample, Texcellence Overseas and Jindal Worldwide, are related parties. The investigation revealed that these companies have common shareholders. These two companies should therefore be considered as a single entity for duty collection purposes, and hence, be submitted to the same countervailing duty. Export quantities of the product concerned during the IP to the Community of both companies were used in order to ensure a proper weighting. The weighted average countervailing duty for these two companies amounts to 7,8 %.
(211) The following duties therefore apply:
TABLE
(212) The individual company countervailing duty rates specified in this Regulation were established on the basis of the findings of the present investigation. Therefore, they reflect the situation found during that investigation with respect to these companies. These duty rates (as opposed to the country-wide duty applicable to "all other companies") are thus exclusively applicable to imports of products originating in the country concerned and produced by the companies and thus by the specific legal entities mentioned. Imported products produced by any other company not specifically mentioned in the operative part of this Regulation with its name and address, including entities related to those specifically mentioned, cannot benefit from these rates and shall be subject to the duty rate applicable to "all other companies".
(213) Any claim requesting the application of these individual company countervailing duty rates (e.g. following a change in the name of the entity or following the setting up of new production or sales entities) should be addressed to the Commission forthwith with all relevant information, in particular any modification in the company's activities linked to production, domestic and export sales associated with e.g. that name change or that change in the production and sales entities. If appropriate, this Regulation will then be amended accordingly by updating the list of companies benefiting from individual duty rates as well as those specified in the Annex to the operative part of this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive countervailing duty is hereby imposed on imports of bedlinen of cotton fibres, pure or mixed with man-made fibres or flax (flax not being the dominant fibre), bleached, dyed or printed originating in India, currently classifiable within CN codes ex 6302 21 00 (TARIC codes 6302 21 00 81 and 6302 21 00 89 ), ex 6302 22 90 (TARIC code 6302 22 90 19 ), ex 6302 31 10 (TARIC code 6302 31 10 90 ), ex 6302 31 90 (TARIC code 6302 31 90 90 ) and ex 6302 32 90 (TARIC code 6302 32 90 19 ).
2. The rate of duty applicable to the net, free-at-Community-frontier price, before duty, for products produced by the following companies shall be as follows:
TABLE
3. The rate of duty applicable to the net, free-at-Community-frontier price, before duty, for products produced by the companies listed in the Annex, shall be 7,6 % (TARIC additional code A498).
4. The rate of duty applicable to the net, free-at-Community-frontier price, before duty, for products produced by the companies not specified in paragraphs 2 and 3, shall be 10,4 % (TARIC additional code A999).
5. Unless otherwise specified, the provisions in force concerning customs duties shall apply.
Article 2
Where any new exporting producer in India provides sufficient evidence to the Commission that
- it did not export to the Community the products described in Article 1(1) during the investigation period (1 October 2001 to 30 September 2002) and
- it is not related to any of the exporters or producers in India which are subject to the anti-subsidy measures imposed by this Regulation and
- it has actually exported to the Community the products concerned after the investigation period on which the measures are based, or it has entered into an irrevocable contractual obligation to export a significant quantity to the Community,
then the Council, acting by simple majority on a proposal submitted by the Commission after consulting the Advisory Committee, may amend Article 1(3) by adding that new exporting producer to the list in the Annex.
Article 3
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
Done at Brussels, 13 January 2004.
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COMMISSION REGULATION (EEC) No 2581/93 of 20 September 1993 imposing provisional anti-dumping duties on imports of ferro-silicon originating in South Africa and the People's Republic of China
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 subsidised imports from countries not members of the European Community (1), and in particular Articles 10 and 11 thereof,
After consultations within the Advisory Committee as provided for by the Regulation,
Whereas:
A. PROCEDURE (1) In May 1992, the Commission received a complaint lodged by the Liaison Committee of Ferro-Alloys Industries in the European Economic Community (Clifa), acting on behalf of Community producers and representing about 98 % of the Community's ferro-silicon production. The complaint contained evidence that imports of the product concerned from South Africa and the People's Republic of China were being dumped and were causing injury, and this evidence was considered sufficient to justify initiation of a proceeding.
(2) Consequently, by a notice published in the Official Journal of the European Communities (2), the Commission announced the initiation of an anti-dumping proceeding concerning imports of ferro-silicon originating in the People's Republic of China and South Africa and opened an investigation.
(3) Commission Regulation (EEC) No 2409/87 (3), Council Regulations (EEC) No 341/90 (4) and (EEC) No 1115/91 (5) and Commission Decision 91/240/EEC (6), concerning imports of ferro-silicon originating in the former USSR, Sweden, Norway, Iceland, Venezuela, Brazil and the former Yugoslavia, are subject to a review initiated by a notice published on 6 May 1992 (7).
(4) In December 1992, Council Regulation (EEC) No 3642/92 (8) imposed definitive anti-dumping measures on imports of ferro-silicon originating in Poland and Egypt.
(5) The Commission officially notified producers/exporters, importers and Community producers known to be concerned of the initiation of the proceeding and gave the parties the opportunity to make known their views in writing.
(6) Some producers/exporters requested the opportunity to express their views orally and their request was granted.
(7) The Commission sought and verified all the information it considered necessary for determining whether dumping had taken place and injury had been incurred.
Inspections were carried out at the premises of:
Community producers:
- Pechiney Electrometallurgie, France,
- Sociedad Española de Carburos Metálicos, Spain,
- SKW Trostberg AG, Germany.
Unrelated importers:
- Frank & Schulte GmbH, Germany,
- Considar Benelux NV, Belgium.
Related importer:
- Samancor International Ltd, United Kingdom.
South African producers:
- Rand Carbide, Division of Highved Steel & Vanadium Corp. Ltd, Witbank,
- Samancor, Chrome Division, Ferrometals Ltd, Witbank,
- Samancor, Industrial Minerals and Chemicals Division, Meyerton.
(8) The Commission conducted an investigation at the permises of Norwegian producers, since Norway had been selected as the country of reference for the establishment of normal value in the case of China (see recital 17).
(9) The Commission received and used information from the the complainants, importers and the South African producers. The Chinese producers did not cooperate.
(10) The investigation into dumping practices covered the period of 1 January 1991 to 30 April 1992.
B. PRODUCT (11) Description of the product The product under investigation is ferro-silicon containing between 20 and 96 % of silicon by weight and falling within CN codes 7202 21 10, 7202 21 90 and ex 7202 29 00 originating in South Africa and the People's Republic of China.
The investigation has shown that ferro-silicon ranging from 20 to 96 % of silicon content have the same basic physical and chemical characteristics and uses. They are interchangeable in their main applications as a deoxidizer in steel manufacture and/or as an alloying component for high temperature steel alloys and sheet metal.
(12) Like product The Commission established that the ferro-silicon produced in the Community and the ferro-silicon produced in and exported from South Africa were like products as regards their essential basic physical and technical characteristics as well as their uses.
C. DUMPING (1) Normal Value
(a) South Africa
(13) Domestic sales of the South African producers exceeded 5 % of exports to the Community and therefore represented a volume sufficient to constitute a representative market and an adequate basis for calculating normal value.
(14) Normal value has therefore been calculated, for all South African producers, on the basis of the weighted average domestic prices for ferro-silicon sold on the domestic market at prices made in the ordinary course of trade, in accordance with
Article 2
(3) (a) of Regulation (EEC) No 2423/88.
(15) The prices were net of all discounts and rebates directly linked to the sales under consideration.
(b) China
(16) Since the People's Republic of China is considered to be a non-market economy country, within the meaning of Article 2 (5) of Regulation (EEC) No 2423/88, normal value was based on information obtained from a market economy reference country in which the product was manufactured.
(17) As reference country, the Commission chose Norway. Indeed, the Norwegian ferro-silicon industry reported high production volumes and low cost of production and appeared to be, compared to all other known producing countries, an efficient producer given the ease of access to hydro-electrical power, the most costly input in the production of ferro-silicon. Furthermore, Norway is a high volume producer with a substantial share of its sales (more than 40 %) made on the Community market. Norway was therefore considered to be an appropriate and not unreasonable choice of reference market.
During the reference period, sales on the Norwegian market were not at prices which permitted recovery, in the ordinary course of trade, of all costs reasonably allocated. Normal value has been therefore calculated in accordance with Article 2 (5) (b) of Regulation (EEC) No 2423/88 and has been based on the constructed value determined by the weighted average cost of production of the Norwegian producers and a profit margin of 6 % considered reasonable, based on the information available to the Commission concerning the medium and long-term investment requirements of ferro-silicon industry.
(2) Export prices
(a) South Africa
(18) Where sales were made directly to independent importers in the Community, export prices were determined on the basis of the prices actually paid or payable for the product sold to export to the Community.
(19) Where exports were made to related importers to the Community, export prices, in accordance with Article 2 (8) (b) of Regulation (EEC) No 2423/88, were constructed on the basis of resale prices to the first independent purchaser, adjusted to take account of all costs incurred between importation and resale, together with a 3 % profit margin which was considered reasonable in view of the information available to the Commission from unrelated importers of the product concerned.
(b) China
(20) The Chinese producers did not cooperate in the investigation. Accordingly, the Commission used the most reasonable information available as provided for in Article 7 (7) (b) of Regulation (EEC) No 2423/88.
The Commission considered that the statistics on imports in Eurostat should form the basis of the determination of Chinese export prices. This approach was supported by the information obtained from the sole cooperating importer in the Community of ferro-silicon of Chinese origin and which accounted for approximatively 20 % of the total volume of imports of Chinese ferro-silicon during the investigation period.
(3) Comparison
(21) In comparing the South African normal value, as well as the normal value established for the People's Republic of China, with export prices concerned, transaction by transaction, the Commission, in accordance with Article 2 (9) and (10) of Regulation (EEC) No 2423/88, took account, where warranted, of the differences directly affecting price comparability, such as certain selling expenses, i.e. credit terms, commission, transport, packing, insurance, handling costs and ancillary costs.
All comparisons were made at the same level of trade.
(4) Dumping margins
(22) Comparison of the facts thus obtained revealed dumping margins for both South Africa and the People's Republic of China.
The margin of dumping equalled the amount by which the normal value established exceeded the price for export to the Community.
(a) South Africa
(23) The weighted average dumping margins for the South African producers concerned, expressed as a percentage of the cif-Community frontier prices, customs duty unpaid, are as follows:
Samancor 47,4 %,
Highveld - Rand Carbide 34,7 %.
(24) In the case of firms which failed to cooperate in the investigation or did not reply satisfactorily to the Commission's questionnaire, the Commission considered that dumping should be determined on the basis of the facts available in accordance with Article 7 (7) (b) of Regulation (EEC) No 2423/88.
In this respect, the Commission considered that the most reasonable facts were those established in the investigation and since it had no reason to believe that the non-cooperating companies would dump at a level lower than the highest margin established and in order not to reward non-cooperation, it was considered that this margin would be the most appropriate for the non-cooperating companies.
(b) China
(25) Expressed as a percentage of the cif value at the Community frontier, duty unpaid, the dumping margin amounts to 49,7 %.
D. INJURY (1) Cumulation
(26) The effects of the imports from South Africa and the People's Republic of China were analysed cumultively, since the exports originating in each of these countries, during the investigation period, comprised significant quantities of the like product, competed with the Community production and with each other and the exporter's market behaviour was similar.
(2) Volume, market share and prices of the dumped imports
(a) Volume of imports
(27) There has been a considerable increase in South Africa's and China's exports to the Community. They have risen from 9 000 tonnes in 1989 to 31 000 tonnes in 1991 and remainded at the same level in 1992 (calculated on a yearly basis) representing an increase in market share from less than 2 % to almost 6 % over the same abovementioned period.
(b) Price of the dumped imports
(28) A price comparison between the prices ex works of the Community industry and the exporters concerned was made on the basis of sales cif Community frontier, duty paid, of ferro-silicon taken at the same level of trade on the most important and representative markets of the Community during the investigation period.
The comparison showed price undercutting margins of an average 25,2 % for exports from South Africa and 24 % for exports from the People's Republic of China.
(3) Situation of the Community industry
(a) Production, capacity and utilization of capacity
(29) Community production of ferro-silicon has fallen from nearly 190 000 tonnes in 1989 to 132 000 in 1991 and 102 000 in 1992.
Though production capacity fell from nearly 255 000 tonnes in 1989 to approximately 200 000 tonnes up to April 1992, calculated on a yearly basis, the utilization rate nevertheless decreased from 75 % in 1989 to 48 % in the first quarter of 1992.
(b) Sales volume and market share
(30) The quantity of ferro-silicon sold in the Community by the Community industry fell from 163 000 tonnes in 1989 to 135 000 tonnes in 1990, to 122 000 tonnes in 1991 and to approximately 100 000 tonnes in 1992.
(31) Between 1989 and 1992, the Community producers' market share declined as follows; 30 % in 1989, 25 % in 1990, 23 % in 1991 and 13 % in the first four months of 1992, while the Community's annual consumption increased between 1988 and 1989 from 490 000 tonnes to 535 000 tonnes and has since remained at that level.
(c) Price evolution
(32) The low level of import prices over the investigation period meant that Community producers had to sell the product in the Community at prices which, in most cases, did not cover their production costs. The low level of prices not only prevented Community producers from raising their prices in order to reflect the rise in production costs, but even forced them to lower their prices, although this did not stop them from losing market shares.
(d) Profits
(33) Due to the price depression and decreasing capacity utilization which negatively affected the coverage of fixed costs in this highly capital-intensive industry, the Community industry overall has recorded poor financial results since 1987 (with the exception of 1989 where a small profit was realized). The situation has further deteriorated since 1990 and particularly during the investigation period with all Community producers suffering heavy losses. A weighted average of the Community industry's results shows a loss of some 34 % on turnover during this period.
(e) Employment and investment
(34) It should be noted that the ferroc-silicon industry is not labour intensive. However, there has been a small, but steady curtailment in the workforce.
Investments have been cut and, in Italy, three companies stopped their ferro-silicon production.
(f) Conclusion
(35) Given the financial losses and the reduction of its market shares, the Community industry's position has declined considerably. The Commission concludes accordingly that the industry has suffered material injury within the meaning of Article 4 (1) of Regulation (EEC) No 2423/88.
(4) Causal link between dumped imports and injury
(36) The Commission examined whether the material injury suffered by the Community industry was caused by the effects of the dumping, and found that the increased influx of South African and Chinese imports coincided with a significant loss of market share and reduced profitability on the part of the Community industry. The Community ferro-silicon market is a transparent and price-sensitive market in which the price undercutting practised by the South African and Chinese producers had an immediate depressive effect on the price of the Community industry. The Community producers had to adjust their prices to meet this downward trend in prices.
(5) Other factors
(37) The Commission also considered whether factors other than the dumped imports of ferro-silicon could have caused injury to the Community industry.
(38) The Council has already found that many of the difficulties encountered by the Community ferro-silicon industry have been caused by other third countries' dumped imports (see recitals 3 and 4). However, this does not detract from the conclusion that considerable quantities and the low prices of the dumped South African and Chinese imports also had substantial influence on the injurious situation of the Community industry.
(39) The Commission did not find any other factors which could explain the precarious economic situation of the Community industry. Indeed, there were neither substantial imports, other than those mentioned, nor was there any contraction in demand between 1990 and 1992.
6. Conclusion (40) In these circumstances, and even taking into account that imports from Russia, Kazakhstan, Ukraine, Norway, Sweden, Iceland, Brazil, Venezuela, Poland and Egypt have also contributed to the poor situation of the Community industry, the Commission has come to the conclusion, for the purpose of a provisional determination, that the effects of dumped imports of ferro-silicon originating in South Africa and the People's Republic of China taken in isolation, have to be considered as causing material injury to the Community industry.
E. COMMUNITY INTEREST (41) In assessing the Community interest, the Commission took account of certain basic elements. The prevention of distortion of competition arising from unfair commercial practices, and thus re-establisment of open and fair competition on the Community market, is the very purpose of anti-dumping measures and is fundamentally in the general Community interest. Furthermore, in the particular circumstances of the present proceeding, failure to take provisional measures would aggravate the already precarious situation of the Community industry, especially noticeable from the losses, the shrinking of market shares and the resulting downgrading of investments. Should this industry be forced to cease production, the Community would be rendered almost entirely dependent on third countries. In this respect, given the level of losses incurred by them over an extended period, some Italian producers already with drew from this sector at the beginning of 1991. Any further deterioration would endanger jobs and investment in the sector concerned.
(42) The Commission recognises that the imposition of anti-dumping duties could affect price levels of the exporters concerned in the Community and subsequently may have some influence on the relative competitiveness of their products. However, the competitive advantage that is being lost is due to unfair trade practices which anti-dumping measures are designed to remove.
(43) It has also been argued that anti-dumping measures would reduce the number of competitors on the market. However, the Commission considers that the number of competitors on the Community market would not be reduced by the taking of anti-dumping measures. On the contrary, the removal of the unfair advantages gained by the dumping practices is designed to arrest the decline of the Community industry and thus to help to maintain the availability of a wide choice of ferro-silicon producers.
(44) In this context, it has to be borne in mind that the Community industry has been affected by imports from other non-Community countries, namely Norway, Sweden, Iceland, Kazakhstan, Russia, Ukraine, Brazil, Venezuela, Poland and Egypt, which are presently subject to anti-dumping measures. All these countries would be treated in a discriminatory manner and the effectiveness of these measures would be undermined, if no measures were taken against South Africa and the People's Republic of China.
(45) Furthermore, there are indications, that the construction of a new product facility, considerably increasing production capacity, is under way in South Africa. This South African company, operating since May 1993, has made known its intention to sell 23 000 (one-third of its capacity) tonnes in the Community market, the other two-thirds being intended for the American and Japanese markets. This would increase the South African market share by an additional 4 %.
(46) The Chinese producers together possess more than one million tonnes' production capacity. This accounts for a high proportion of world capacity. Appreciable quantities are available for export.
(47) As to the interest of the processing industry, i.e. producers of speciality steel which are end-users of the product concerned in the Community, its short-term price advantages have to be viewed against the background of the longer-term effect of not restoring fair competition. Indeed, to refrain from taking action would seriously threaten the viability of the Community industry, the disappearance of which would, in fact, reduce supply and competition, to the detriment of consumers. Moreover, it has to be borne in mind that the price of ferro-silicon represents, on average, only 0,2 % of the cost of a tonne of steel. Any such cost increase of ferro-silicon would therefore have an insignificant impact on the final consumer.
(48) The Commission considers that it is therefore in the Community's interest to call for the imposition of anti-dumping measures, in order to prevent further injury being caused by the dumped imports.
F. LEVEL OF THE DUTY (49) In order to eliminate the injury suffered by the Community industry and prevent further injury, it is considered that anti-dumping measures should be established in such a way as to allow the Community industry to make a reasonable profit in the future and to stem the fall in its sales.
(50) In this respect, the Commission has calculated the weighted average cost of production of the Community producers including a profit of 6 %, based on past performances of the Community industry and considered reasonable for guaranteeing the industry productive investment on a long term basis. Since the difference between these costs and the average imports prices on a CIF Community frontier basis, duty unpaid, is higher than the dumping margins for all companies or countries concerned, the duties should be based on the dumping margins found.
(51) Accordingly, the following provisional anti-dumping duties should be imposed for each producer/exporter:
- South Africa 47,4 %,
- Highveld-Rand Carbide 34,7 %,
- China 49,7 %.
(52) In the case of South African firms which falled to cooperate in the investigation, the Commission considered that the duties should be established on the basis of the facts available in accordance with Article 7 (7) (b) of Regulation (EEC) No 2423/88. In order not to reward non-cooperation, it was considered that the most reasonable facts were those established during the investigation and that there was no reason to believe that any duties lower than the highest duties considered necessary would be sufficient to remove the injury caused by these imports. Therefore, it is considered appropriate to impose the highest duty calculated for ferro-silicon originating in South Africa.
G. FINAL PROVISION (53) In the interests of sound administration, a period should be fixed within which the parties concerned may make their views known in writing and request a hearing. Furthermore, it should be stated that all findings made for the purpose of this Regulation are provisional and may have to be reconsidered for the purpose of any definitive duty which the Commission may propose,
HAS ADOPTED THIS REGULATION:
Article 1
1. A provisional anti-dumping duty is hereby imposed on imports of ferro-silicon containing between 20 and 96 % of silicon by weight falling within CN codes 7202 21 10, 7202 21 90 and ex 7202 29 00 (Taric code 7202 29 00 * 11) and originating in South Africa and the People's Republic of China.
2. The duty, calculated on the basis of the free-at-Community-frontier price of the product, not cleared through customs, shall be:
- 49,7 % for ferro-silicon originating in the People's Republic of China,
- 47,4 % for ferro-silicon originating in South Africa (additional Taric code 8733)
with the exception of that produced by the company below, to which the following rate shall apply:
34,7 % Rand Carbide, Division of Highveld Steel and Vanadium Corp. Ltd, Witbank
(additional Taric code 8732).
3. The provisions in force concerning customs duties shall apply.
4. The release for free circulation of the products referred to in paragraph 1 shall be subject to the provisions of a security, equivalent to the amount of the provisional duty.
Article 2
Without prejudice to Article 7 (4) (b) and (c) of Regulation (EEC) No 2423/88, the parties concerned may make known their views in writing and apply to be heard orally by the Commission within one month from the date of entry into force of this Regulation.
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
Subject to Articles 11, 12 and 13 of Regulation (EEC) No 2423/88, Article 1 of this Regulation shall apply for a period of four months, unless the Council adopts definitive measures before the expiry of that period.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 September 1993.
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*****
COMMISSION REGULATION (EEC) No 2491/88
of 8 August 1988
concerning the stopping of fishing for cod by vessels flying the flag of the United Kingdom
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), and in particular Article 11 (3) thereof,
Whereas Council Regulation (EEC) No 3983/87 of 15 December 1987, allocating, for 1988, Community catch quotas in Greenland waters (2), amended by Regulation (EEC) No 1345/88 (3), provides for cod 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 cod in the waters of NAFO zone 1 (Greenland waters) by vessels flying the flag of the United Kingdom or registered in the United Kingdom have reached the quota allocated for 1988,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of cod in the waters of NAFO zone 1 (Greenland waters) by vessels flying the flag of the United Kingdom or registered in the United Kingdom are deemed to have exhausted the quota allocated to the United Kingdom for 1988.
Fishing for cod in the waters of NAFO zone 1 (Greenland waters) by vessels flying the flag of the United Kingdom or registered in the United Kingdom is prohibited, as well as the retention on board, the transhipment and the landing of such stock captured by the abovementioned vessels after the date of entry into force of this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 August 1988.
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COMMISSION REGULATION (EC) No 579/94 of 16 March 1994 amending Regulation (EC) No 336/94 fixing the number of young male bovine animals which may be imported on special terms in the first quarter of 1994 and derogating from Regulation (EEC) No 2377/80 in respect of that quarter as regards the allocation of the quantities available
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 3611/93 (2), and in particular Articles 13 (4), 15 (2) and 25 thereof,
Whereas the exchange of letters between the European Community and Bulgaria concerning certain provisions applying to live bovine animals annexed to the Interim Agreement between the European Economic Community and the European Coal and Steel Community, of the one part, and the Republic of Bulgaria, of the other part (3), which came into force on 31 December 1993, allows Bulgaria to benefit under the present arrangements;
Whereas Article 1 (1) (b) of Commission Regulation (EC) No 336/94 (4) specifies for the first quarter of 1994 a greater reduction in the levy on animals weighing 160 to 300 kilograms per head, originating in and coming from Hungary, Poland, the Czech Republic, the Slovak Republic, Romania and Slovenia; whereas Bulgaria should be included, with immediate effect, in that list and certain other provisions should be adapted;
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
Regulation (EC) No 336/94 is hereby amended as follows:
1. Article 1 (1) (b) is replaced by the following:
'(b) 45 530 of a live weight of 160 to 300 kilograms per head, originating in and coming from Hungary, Poland, the Czech Republic, Slovakia, Romania, Slovenia and Bulgaria and subject to a 75 % reduction in the levy.';
2. Article 1 (4) is replaced by the following:
'4. Licence applications and licences shall, notwithstanding Article 9 (1) (c) of Regulation (EEC) No 2377/70, relate to:
- young bovine animals weighing not more than 300 kilograms per head,
or
- young bovine animals weighing from 160 to 300 kilograms per head, originating in and coming from Hungary, Poland, the Czech Republic, Slovakia, Romania, Slovenia or Bulgaria.
In the latter case, Sections 7 and 8 of licence applications and licences shall include one of the following:
- Hungría y/o Polonia y/o República Checa y/o República Eslovaca y/o Rumanía y/o Eslovenia, y/o Bulgaria,
- Ungarn og/eller Polen og/eller Den Tjekkiske Republik og/eller Den Slovakiske Republik og/eller Rumaenien og/eller Slovenien, og/eller Bulgarien,
- Ungarn und/oder Polen und/oder Tschechische Republik und/oder Slowakische Republik und/oder Rumaenien und/oder Slowenien, und/oder Bulgarien,
- Oyngaria i/kai Polonia i/kai Tsechiki Dimokratia i/kai Slovakiki Dimokratia i/kai Roymania i/kai Slovenia i/kai Voylgaria,
- Hungary and/or Poland and/or Czech Republic and/or Slovakia and/or Romania and/or Slovenia and/or Bulgaria,
- Hongrie et/ou Pologne et/ou République tchèque et/ou République slovaque et/ou Roumanie et/ou Slovénie et/ou Bulgarie,
- Ungheria e/o Polonia e/o Repubblica ceca e/o Repubblica slovacca e/o Romania e/o Slovenia e/o Bulgaria,
- Hongarije en/of Polen en/of Tsjechische Republiek en/of Slowaakse Republiek en/of Roemenië en/of Slovenië en/of Bulgarije,
- Hungria e/ou Polónia e/ou República Checa e/ou República Eslovaca e/ou Roménia e/ou Eslovénia e/ou Bulgária.
Licences shall carry with them an obligation to import from one or more of the countries indicated.';
3. Article 4 is replaced by the following:
'Article 4
Notwithstanding Article 9 (1) (e) and (f) of Regulation (EEC) No 2377/80, "220 kg" and "Yugoslavia and/or Poland and/or Hungary" in those provisions shall be read respectively as "160 kg" and "Hungary and/or Poland and/or the Czech Republic and/or Slovakia and/or Romania and/or Slovenia and/or Bulgaria".'
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, 16 March 1994.
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COMMISSION REGULATION (EEC) No 2237/77 of 23 September 1977 amending Regulation No 118/66/EEC on the form of farm return to be used for the purpose of determining incomes of agricultural holdings
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Regulation No 79/65/EEC of 15 June 1965 setting up a network for the collection of accountancy data on the incomes and business operation of agricultural holdings in the European Economic Community (1), as last amended by Regulation (EEC) No 2910/73 (2), and in particular Article 7 thereof,
Whereas Regulation No 118/66/EEC of the Commission of 29 July 1966 (3), as last amended by Regulation (EEC) No 3565/73 (4), specified the items to be included in the farm return to be used in determining the incomes of agricultural holdings;
Whereas the type, definitions and presentation of accountancy data collected by means of the farm return with a view to determining the incomes of agricultural holdings should be identical, irrespective of the characteristics of the holdings surveyed;
Whereas it is now time for the 10 years' experience of the farm accountancy data network to be applied to revise the provisions concerning the farm return so as to make the accountancy data more comparable and to adapt them to the developing needs of the common agricultural policy;
Whereas the opportunity should be taken to improve the processing of the accountancy data ; whereas to this end magnetic tape should be adopted as the medium for these data;
Whereas for same holdings there may be difficulties in completing particular headings due to the absence of the relevant data in these holdings' accounts ; whereas, consequently, for as long as these difficulties persist, arrangements should be made to prevent any risk of misinterpretation in the event of these particular headings not being completed;
Whereas, to minimize the disadvantages accruing from adjustments to the farm return, the new provisions should be applied in all Member States with effect from one and the same accounting year ; whereas it is nonetheless desirable, in view of the difficulties which certain Member States may encounter in making these adjustments within a single year, to make provision for those Member States to postpone the application of the new provisions for one accounting year;
Whereas the measures laid down in this Regulation are in accordance with the opinion of the Community Committee for the Farm Accountancy Data Network, (1)OJ No 109, 23.6.1965, p. 1859/65. (2)OJ No L 299, 27.10.1973, p. 1. (3)OJ No 148, 10.8.1966, p. 2701/66. (4)OJ No L 361, 29.12.1973, p. 84.
HAS ADOPTED THIS REGULATION:
Article 1
The type of accountancy data to be given in a farm return shall be as laid down in Annex I. The relevant definitions and instructions shall be as laid down in Annex II. The accountancy data shall be presented in the form laid down in Annex III.
Article 2
This Regulation shall apply for the first time to the accountancy data of the 1978 accounting year, beginning during the period between 1 January 1978 and 1 July 1978.
However, for France, Italy, Luxembourg and Ireland, these provisions shall apply to the accounting data of the 1979 accounting year, beginning during the period between 1 January and 1 July 1979.
Article 3
Regulation No 118/66/EEC is hereby repealed. It shall apply in its entirety to the accountancy data of the accounting years preceding those mentioned in Article 2, whatever the date on which these data are transmitted to the Commission.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 September 1977.
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Commission Regulation (EC) No 1905/2002
of 24 October 2002
fixing the export refunds 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 (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), as last amended by Commission Regulation (EC) No 509/2002(2), and in particular Article 31(3) thereof,
Whereas:
(1) Article 31 of Regulation (EC) No 1255/1999 provides that the difference between prices in international trade for the products listed in Article 1 of that Regulation and prices for those products within the Community may be covered by an export refund within the limits resulting from agreements concluded in accordance with Article 300 of the Treaty.
(2) Regulation (EC) No 1255/1999 provides that when the refunds on the products listed in Article 1 of the abovementioned Regulation, exported in the natural state, are being fixed, account must be taken of:
- the existing situation and the future trend with regard to prices and availabilities of milk and milk products on the Community market and prices for milk and milk products in international trade,
- marketing costs and the most favourable transport charges from Community markets to ports or other points of export in the Community, as well as costs incurred in placing the goods on the market of the country of destination,
- the aims of the common organisation of the market in milk and milk products which are to ensure equilibrium and the natural development of prices and trade on this market,
- the limits resulting from agreements concluded in accordance with Article 300 of the Treaty, and
- the need to avoid disturbances on the Community market, and
- the economic aspect of the proposed exports.
(3) Article 31(5) of Regulation (EC) No 1255/1999 provides that when prices within the Community are being determined account should be taken of the ruling prices which are most favourable for exportation, and that when prices in international trade are being determined particular account should be taken of:
(a) prices ruling on third country markets;
(b) the most favourable prices in third countries of destination for third country imports;
(c) producer prices recorded in exporting third countries, account being taken, where appropriate, of subsidies granted by those countries; and
(d) free-at-Community-frontier offer prices.
(4) Article 31(3) of Regulation (EC) No 1255/1999 provides that the world market situation or the specific requirements of certain markets may make it necessary to vary the refund on the products listed in Article 1 of the abovementioned Regulation according to destination.
(5) Article 31(3) of Regulation (EC) No 1255/1999 provides that the list of products on which export refunds are granted and the amount of such refunds should be fixed at least once every four weeks; the amount of the refund may, however, remain at the same level for more than four weeks.
(6) In accordance with Article 16 of Commission Regulation (EC) No 174/1999 of 26 January 1999 on specific detailed rules for the application of Council Regulation (EC) No 804/68 as regards export licences and export refunds on milk and milk products(3), as last amended by Regulation (EC) No 1166/2002(4), the refund granted for milk products containing added sugar is equal to the sum of the two components; one is intended to take account of the quantity of milk products and is calculated by multiplying the basic amount by the milk products content in the product concerned; the other is intended to take account of the quantity of added sucrose and is calculated by multiplying the sucrose content of the entire product by the basic amount of the refund valid on the day of exportation for the products listed in Article 1(1)(d) of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(5), as amended by Commission Regulation (EC) No 680/2002(6), however, this second component is applied only if the added sucrose has been produced using sugar beet or cane harvested in the Community.
(7) Commission Regulation (EEC) No 896/84(7), as last amended by Regulation (EEC) No 222/88(8), laid down additional provisions concerning the granting of refunds on the change from one milk year to another; those provisions provide for the possibility of varying refunds according to the date of manufacture of the products.
(8) For the calculation of the refund for processed cheese provision must be made where casein or caseinates are added for that quantity not to be taken into account.
(9) It follows from applying the rules set out above to the present situation on the market in milk and in particular to quotations or prices for milk products within the Community and on the world market that the refund should be as set out in the Annex to this Regulation.
(10) The Management Committee for Milk and Milk Products has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds referred to in Article 31 of Regulation (EC) No 1255/1999 on products exported in the natural state shall be as set out in the Annex.
Article 2
This Regulation shall enter into force on 25 October 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 October 2002.
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COMMISSION REGULATION (EEC) No 3915/88
of 15 December 1988
laying down provisions for the implementation of Article 63c of Council Regulation (EEC) No 918/83 setting up a Community system of reliefs from customs duty
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty (1), as amended by Regulation (EEC) No 1315/88 (2), and in particular Article 143 thereof,
Whereas Article 63c of Regulation (EEC) No 918/83 provides for relief from import duties for consignments containing samples of reference substances approved by the World Health Organization (WHO) which are intended for use in the quality control of materials used in the manufacture of medicinal products; whereas such consignments are addressed to consignees authorized by the competent national authorities to benefit from such relief;
Whereas the requisite conditions for the correct implementation of that provision should be laid down; whereas those conditions must be established in accordance with the procedure provided for in Article 143 (2) and (3) of Regulation (EEC) No 918/83;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Committee on Duty Free Arrangements,
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation lays down provisions for the implementation of Article 63c of Regulation (EEC) No 918/83.
Article 2
The relief referred to in Article 63c of Regulation (EEC) No 918/83 shall apply only to consignments sent by the ‘WHO Collaborating Centre for Chemical Reference Substances’ in Stockholm (Sweden) to consignees who are authorized by the competent national authorities to receive them duty free.
Article 3
Relief from import duties for consignments referred to in Article 63c of Regulation (EEC) No 918/83 shall be conditional on the display, on packages containing reference substances, of:
-
firstly, the stamp of the WHO Collaborating Centre referred to in Article 2 above,
-
secndly, a label, a specimen of which is shown in the Annex to this Regulation, on which the box corresponding to chemical reference substances has been clearly marked with a tick.
Article 4
Relief shall extend to any special packaging which is essential to the transportation of chemical reference substances and to any requisite accessories which the consignments may contain.
Article 5
This Regulation shall enter into force on 1 January 1989.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 December 1988.
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COUNCIL REGULATION (EEC) No 3568/90 of 4 December 1990 on the introduction of transitional tariff measures for Bulgaria, Czechoslovakia, Hungary, Poland, Romania, the USSR and Yugoslavia until 31 December 1992 to take account of German unification
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 28, 43 and 113 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Whereas the Common Customs Tariff will be fully applicable to the territory of the former German Democratic Republic as from 3 October 1990, the date of German unification;
Whereas the former German Democratic Republic had concluded numerous agreements with Bulgaria, Czechoslovakia, Hungary, Poland, Romania, the USSR and Yugoslavia which provided for a yearly exchange of specific goods in maximum quantities or to maximum values at a zero rate of duty; whereas the former German Democratic Republic had concluded long-term cooperation and investment agreements with Czechoslovakia, Poland and the USSR which will give rise to reciprocal deliveries of goods at zero rates of duty for many years to come;
Whereas agreements of the first type will not be renewed after 31 December 1990 and agreements of the second type will be renegotiated at Community, German or private enterprise level, but whereas this process of renegotiation will take some time;
Whereas the maximum quantities or values mentioned in these agreements do not entail legally binding obligations between the parties; whereas non-enforcement thereof cannot therefore give rise to any compensation by the Community;
Whereas it is necessary, therefore, during a transitional period to attenuate the impact resulting from German unification on both types of agreement as otherwise serious repercussions on enterprises in the territory of the former German Democratic Republic and in Bulgaria, Czechoslovakia, Hungary, Poland, Romania, the USSR and Yugoslavia could result and indeed the stability of the economies of these countries might be adversely affected thereby;
Whereas for these reasons it is appropriate to suspend temporarily the duties of the Common Customs Tariff for products originating in Bulgaria, Czechoslovakia, Hungary, Poland, Romania, the USSR and Yugoslavia which are covered by the abovementioned agreements betwen the former German Democratic Republic and these countries, up to the maximum quantities or values laid down therein;
Whereas the objectives of the common agricultural policy which are referred to in Article 39 of the Treaty permit the application of the principles pursued by this Regulation only to those products which are subject to a customs duty; whereas Community systems of reference prices or minimum prices and agricultural levies and other import charges imposed by market organizations must continue to apply; whereas, in view of the sensitivity of the markets, no exemption for the beef sector is possible;
Whereas it is appropriate, in view of the special circumstances of German unification, for the said suspension of duties to be applicable to the products concerned only in so far as they are put into free circulation in the territory of the former German Democratic Republic;
Whereas it is necessary to make provision for determining the origin of the goods which will be covered by the said suspension of duties;
Whereas, in view of the difficulties in applying these measures and the fact that some of their consequences are unforeseeable, it is appropriate to emphasize the
transitional character of these measures and restrict their duration to a two-year period up to 31 December 1992;
Whereas it is appropriate to provide for special measures and a procedure to put them in place, in case the temporary suspension of duties causes or threatens to cause serious injury to a branch of Community industry,
HAS ADOPTED THIS REGULATION:
Article 1
1. From 3 October 1990, the date of German unification, to 31 December 1992 import duties within the meaning of Article 1 of Council Regulation (EEC) No 2144/87 of
13 July 1987 on customs debt(3), as amended by Regulation (EEC) No 4108/88(4), including the existing anti-dumping duties, shall be suspended for goods originating in Bulgaria, Czechoslovakia, Hungary, Poland, Romania, the USSR and Yugoslavia covered by the agreements listed in Annexes I and II concluded between those countries and the former German Democratic Republic - the essential elements of which shall be published in the Official Journal of the European Communities - up to the maximum quantities or values established by the said agreements.
However, as far as agricultural products which are referred to in Annex II to the Treaty are concerned, agricultural levies and other import charges imposed pursuant to the common agricultural policy will continue to be applied; where systems of reference prices or minimum import prices exist, they must be adhered to in practice.
The exemptions referred to in the first subparagraph shall not apply to beef and veal or live animals other than purebred bovine breeding animals.
2. The provisions of paragraph 1 shall be applicable only if:
the goods in question are released for free circulation in the territory of the former German Democratic Republic and are consumed there or undergo processing conferring Community origin there(5),
a licence issued by the relevant German authorities stating that the goods in question fall within the scope of the provisions contained in paragraph 1 is submitted in support of the declaration of entry for release for free circulation.
3. The Commission and the competent German authorities shall take whatever measures are needed to ensure that the final consumption of the products in question, of the processing by which they acquire Community origin, takes place in the territory of the former German Democratic Republic.
Article 2
To determine the origin of the goods referred to in
Article 1, Council Regulation (EEC) No 802/68 of 27 June 1968 on the common definition of the concept of the origin of goods(6), as last amended by Regulation (EEC) No 1769/89(7), shall apply.
Article 3
1. If the suspension of the Common Customs Tariff duties referred to in Article 1 causes substantial injury to Community producers of like or directly competitive products in one or more Member States, the Commission may, at the request of a Member State, restore the normal duty rate for the products concerned.
Any Member State may refer any difficulties to the Commission. The Commission shall, as a matter of urgency, examine the question and submit its conclusions, possibly accompanied by appropriate measures.
2. The procedure set out in Article 11 of Council Regulation (EEC) No 1765/82 of 30 June 1982 on common rules for imports from State-trading countries(8), as last amended by Regulation (EEC) No 1243/86(9), shall be followed.
Article 4
The Commission shall report to the European Parliament and to the Council by 1 October 1991 on the operation of the system established, the quantities of the products which have benefited from it and the stage reached in the renegotiation of outstanding arrangements.
Article 5
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 December 1990.
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Commission Regulation (EC) No 1989/2003
of 6 November 2003
amending Regulation (EEC) No 2568/91 on the characteristics of olive oil and olive-pomace oil and on the relevant methods of analysis
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organisation of the market in oils and fats(1), as last amended by Regulation (EC) No 1513/2001(2), and in particular Article 35a thereof,
Whereas:
(1) Commission Regulation (EC) No 2568/91(3), as last amended by Regulation (EC) No 796/2002(4), defines the physical, chemical and organoleptic characteristics of olive oils and olive-pomace oils and lays down methods of assessing these characteristics. The characteristics of the oils in question must be adjusted to take into account new descriptions and definitions of olive oil and olive-pomace oil applicable from 1 November 2003 following an amendment of the Annex to Regulation No 136/66/EEC, and in particular the inclusion of the category of ordinary virgin olive oil in the category of lampante olive oil and the reduction of the free acidity of all the categories.
(2) To continue the process of harmonisation with the international standards laid down by the International Olive Oil Council and the Codex Alimentarius, certain limits concerning the characteristics of olive oil and olive-pomace oil laid down in Regulation (EEC) No 2568/91 should be adjusted.
(3) To reduce the number of analyses required to classify the samples of olive oils concerned, it is preferable that the control laboratories carry out the analyses of the quality and purity of the oils in the order laid down in a decision tree to be adopted for verifying whether a sample is consistent with the category declared. It is also necessary to delete the methods of analysis provided for in Annexes VIII and XIII to Regulation (EEC) No 2568/91, which have been replaced by other, more reliable analyses already set out in that Regulation.
(4) Sampling of batches of olive oils and oil-pomace oils put up in small packages, in accordance with Annex Ia to Regulation (EEC) No 2568/91, involves a number of practical difficulties for the control laboratories. To resolve these difficulties and reduce the quantities taken as much as possible, the content of the primary sample should be amended.
(5) In order to allow a period of adjustment to the new standards and to give time for introducing the means of applying them and to avoid disturbance to commercial transactions, the amendments to this Regulation should not apply until 1 November 2003. For the same reasons, it should be laid down that olive oil and olive-pomace oil packaged prior to that date may be sold until the stocks concerned are used up.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2568/91 is hereby amended as follows:
1. Article 1 is replaced by the following:
"Article 1
1. Oils, the characteristics of which comply with those set out in points 1 and 2 of Annex I to this Regulation, shall be deemed to be virgin olive oils within the meaning of point 1(a) and (b) of the Annex to Regulation No 136/66/EEC.
2. Oil, the characteristics of which comply with those set out in point 3 of Annex I to this Regulation, shall be deemed to be lampante olive oil within the meaning of point 1(c) of the Annex to Regulation No 136/66/EEC.
3. Oil, the characteristics of which comply with those set out in point 4 of Annex I to this Regulation, shall be deemed to be refined olive oil within the meaning of point 2 of the Annex to Regulation No 136/66/EEC.
4. Oil, the characteristics of which comply with those set out in point 5 of Annex I to this Regulation, shall be deemed to be olive oil composed of refined olive oils and virgin olive oils within the meaning of point 3 of the Annex to Regulation No 136/66/EEC.
5. Oil, the characteristics of which comply with those set out in point 6 of Annex I to this Regulation, shall be deemed to be crude olive-pomace oil within the meaning of point 4 of the Annex to Regulation No 136/66/EEC.
6. Oil, the characteristics of which comply with those set out in point 7 of Annex I to this Regulation, shall be deemed to be refined olive-pomace oil within the meaning of point 5 of the Annex to Regulation No 136/66/EEC.
7. Oil, the characteristics of which comply with those set out in point 8 of Annex I to this Regulation, shall be deemed to be olive-pomace oil within the meaning of point 6 of the Annex to Regulation No 136/66/EEC."
2. In Article 2(1), the seventh and 12th indents are deleted.
3. The first subparagraph of Article 2(4) is replaced by the following:"For the purposes of the verification provided for in paragraph 3, the analyses referred to in Annexes II, III, IX, X and XII and, where applicable, any counter-analyses required under national law, shall be carried out before the minimum durability date. Where sampling is done more than four months before the minimum durability date, the analyses shall be carried out no later than the fourth month after the month in which the sample was taken. No time limit shall apply to the other analyses provided for in that Regulation."
4. The following Article 2a is inserted:
"Article 2a
The national authorities or their representatives may verify whether a sample is consistent with the category declared:
(a) either by carrying out, in any order, the analyses provided for in Annex I;
(b) or by following the order set out in Annex Ib on the decision tree until one of the decisions appearing in the decision tree is reached."
5. Article 7 is replaced by the following:
"Article 7
The Community provisions concerning the presence of contaminants shall apply.
As regards halogenated solvents, the limits for all categories of olive oils are as follows:
- maximum content of each halogenated solvent detected: 0,1 mg/kg,
- maximum total content of halogenated solvents detected: 0,2 mg/kg."
6. The Annexes are amended in accordance with the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Union.
It shall apply from 1 November 2003.
However, products which have been legally manufactured and labelled in the Community or legally imported into the Community and put into free circulation before 1 November 2003 may be marketed until all stocks are used up.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 6 November 2003.
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COMMISSION REGULATION (EC) No 387/2009
of 12 May 2009
approving minor amendments to the specification of a name registered in the register of protected designations of origin and protected geographical indications (Bleu du Vercors-Sassenage (PDO))
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (1), and in particular the second sentence of Article 9(2) thereof,
Whereas:
(1)
By virtue of the first subparagraph of Article 9(1) and in accordance with Article 17(2) of Regulation (EC) No 510/2006, the Commission has examined France’s application for approval of an amendment to the specification for the protected designation of origin ‘Bleu du Vercors-Sassenage’, registered by Commission Regulation (EC) No 2400/96 (2), as amended by Regulation (EC) No 509/2001 (3).
(2)
The purpose of the application is to amend the specification by stipulating the conditions for using treatments and additives to the milk and for the manufacture of ‘Bleu du Vercors-Sassenage’. These practices ensure that the key characteristics of the PDO product are maintained.
(3)
The Commission has examined the amendment in question and decided that it is justified. Since the amendment is minor within the meaning of Article 9 of Regulation (EC) No 510/2006, the Commission may approve it without following the procedure set out in Articles 5, 6 and 7 of that Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The specification for the protected designation of origin ‘Bleu du Vercors-Sassenage’ is hereby amended in accordance with Annex I to this Regulation.
Article 2
A consolidated summary of the main points of the specification is given in Annex II to this Regulation.
Article 3
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 May 2009.
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COMMISSION REGULATION (EC) No 1498/1999
of 8 July 1999
laying down rules for the implementation of Council Regulation (EEC) No 804/68 as regards communications between the Member States and the Commission in the milk and milk products sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organisation of the market in milk and milk products(1), as last amended by Regulation (EC) No 1587/96(2), and in particular Article 28 thereof,
(1) Whereas Commission Regulation (EEC) No 210/69 of 31 January 1969 on communications between Member States and the Commission with regard to milk and milk products(3), as last amended by Regulation (EC) No 427/98(4), has been substantially amended several times; whereas, for the sake of clarity, that Regulation should be recast since further amendments are to be made;
(2) Whereas appraisal of the production and market situation in the milk and milk products sector necessitates a regular exchange of information on the operation of the intervention measures provided for in Regulation (EEC) No 804/68, particularly with regard to changes in stocks of the products concerned, both held by intervention agencies and in private storage;
(3) Whereas aid for skimmed milk processed into casein and refunds can be fixed only on the basis of information on changes in prices in international trade;
(4) Whereas the accurate and detailed monitoring of trade flows to assess the effect of refunds requires information on exports of products for which refunds are fixed, particularly the quantities awarded under tendering procedures;
(5) Whereas the implementation of the Agreement on Agriculture concluded under the Uruguay Round of multilateral trade negotiations(5) (hereinafter referred to as "the Agreement on Agriculture") requires additional and more detailed information to be provided on imports and exports, in particular with regard to licence applications and the way licences are used, in order to ensure compliance with undertakings under the Agreement; whereas rapid information on export trends is needed in order to make maximum use of those undertakings; whereas under that Agreement food-aid exports are not subject to the constraints applying to subsidised exports; whereas it should be provided that communications relating to export licence applications must accordingly specify which licence applications cover food-aid supplies;
(6) Whereas Commission Regulation (EC) No 147/1999(6) lays down detailed rules for exports of cheese to Canada, Switzerland and the United States; whereas provision should be made for the relevant information to be communicated;
(7) Whereas Regulation {EC) No 147/1999 introduces specific arrangements for the grant of refunds on ingredients of Community origin in processed cheese manufactured under the inward processing arrangements; whereas provision should be made for the relevant information to be communicated;
(8) Whereas Article 5 of Regulation (EC) No 174/1999 provides that, in certain cases, export licences can be valid for exportation of a product with a code other than that entered in Section 16 of the licence; whereas provision should be made for the relevant information to be communicated;
(9) Whereas Commission Regulation (EC) No 1374/98(7), as amended by Regulation (EC) No 1339/1999(8), provides for certain import quotas to be administered by means of IMA 1 certificates issued by the authorities of third countries; whereas the Member States inform the Commission of the quantity of products for which import licences are issued on the basis of IMA 1 certificates; whereas experience has shown that such notification is not always sufficient to allow such imports to be monitored closely at each stage; whereas provision should be made for additional information to be communicated;
(10) Whereas the method of communicating certain information should be changed; whereas the communication of that information is essential in order to monitor compliance with certain import quotas starting on 1 July 1999 under the Agreement on Agriculture; whereas, in order to ensure the continuity of the management of the system, it is accordingly necessary that this Regulation apply from that date;
(11) 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:
CHAPTER I
Stocks and intervention
Article 1
Member States shall communicate the following information to the Commission not later than the 10th of each month for the previous month:
1. in the case of intervention measures taken under Article 6(1) of Regulation (EEC) No 804/68:
(a) the quantities of butter in storage at the end of the month concerned and the quantities entering and leaving storage during that month, in accordance with Annex I, Part A;
(b) a breakdown of the quantities of butter leaving storage during the month concerned, according to the regulations by which they are covered, in accordance with Annex I, Part B;
(c) a breakdown by age of the quantities of butter in storage at the end of the month concerned, in accordance with Annex I, Part C;
2. in the case of intervention measures taken under Article 6(2) of Regulation (EEC) No 804/68, in accordance with Annex II:
(a) the quantities of butter and cream converted into butter equivalent covered by storage contracts concluded during the month concerned;
(b) the quantities of butter and cream converted into butter equivalent covered by storage contracts which expired during the month concerned;
(c) the total quantity of butter and cream converted into butter equivalent covered by storage contracts at the end of the month concerned.
Article 2
In the case of intervention measures taken under Article 7(1) of Regulation (EEC) No 804/68, the Member States shall communicate, not later than the 10th of each month for the month preceding the communication:
(a) the quantities of skimmed-milk powder in storage at the end of the month concerned and the quantities entering and leaving storage during that month, in accordance with Annex III, Part A;
(b) a breakdown of the quantities of skimmed-milk powder leaving storage during the month concerned, according to the regulations by which they are covered, in accordance with Annex III, Part B;
(c) a breakdown by age of the quantities of skimmed-milk powder in storage at the end of the month concerned, in accordance with Annex III, Part C.
Article 3
In the case of intervention measures taken under Article 8(1) of Regulation (EEC) No 804/68, the Member States shall communicate, not later than the 10th of each month for the month preceding the communication:
(a) the quantities of the following cheeses:
- Grana Padano,
- Parmigiano Reggiano,
- Provolone,
covered by storage contracts at the beginning of the month concerned;
(b) the quantities of cheese covered by storage contracts concluded during the month concerned, broken down by the categories listed at (a);
(c) the quantities of cheese covered by storage contracts which expired during the month concerned, broken down by the categories listed at (a);
(d) the quantities of cheese covered by storage contracts at the end of the month concerned, broken down by the categories listed at (a).
Article 4
For the purposes of this Chapter:
(a) "quantities entering" means quantities physically placed in storage, whether or not taken over by the intervention agency;
(b) "quantities leaving" means quantities which have been removed or, if taken over by the purchaser before removal, quantities taken over.
CHAPTER II
Aid for skimmed milk and skimmed-milk powder
Article 5
Member States shall communicate the following information to the Commission:
1. in the case of aid granted under Article 10(1) of Regulation (EEC) No 804/68 for skimmed milk used in feedingstuffs:
(a) not later than the 20th of each month for the month preceding the communication:
(i) the quantities of skimmed milk produced and processed in dairies and sold to farms for use in feedingstuffs and covered by aid applications submitted during the month concerned;
(ii) the quantities of skimmed milk used in feedingstuffs and for which cream was delivered to dairies;
(iii) the quantities of skimmed milk used in the manufacture of compound feedingstuffs covered by aid applications submitted during the month concerned;
(b) not later than 30 January each year for the year preceding the communication, the quantities of skimmed milk used in feedingstuffs on the farms where it was produced and covered by aid applications submitted under Article 10(1) of Regulation (EC) No 804/68;
2. in the case of aid granted under Article 10(1) of Regulation (EEC) No 804/68 for skimmed-milk powder used in feedingstuffs, not later than the 20th of each month for the month preceding the communication:
(a) the quantities of denatured skimmed-milk powder covered by aid applications submitted during the month concerned, exluding the quantities referred to at (c);
(b) the quantities of skimmed-milk powder used in the manufacture of compound feedingstuffs covered by aid applications submitted during the month concerned, excluding the quantities referred to at (c);
(c) the quantities of skimmed-milk powder denatured or processed into compound feedingstuffs under the third indent of Article 3(1) of Council Regulation (EEC) No 986/68(9), indicating the Member State of processing;
3. in the case of aid granted under Article 11 of Regulation (EEC) No 804/68 for skimmed milk processed into casein, not later than the 20th of each month for the month preceding the communication, the quantities of skimmed milk covered by aid applications submitted during the month concerned. Such quantities shall be broken down according to the quality of the casein or caseinates produced.
CHAPTER III
Prices
Article 6
1. Member States shall communicate to the Commission:
(a) via the "Interactive Data Entry System" (IDES): not later than Thursday each week, the prices (before tax) applied in their territory for the products listed in Annex IV, specifying the marketing stage (ex-factory, wholesale, retail) and characteristics of the product;
(b) by fax: not later than the 25th of each month, the most recent prices for casein and caseinates applied on the world market and in the Community, specifying the marketing stage.
2. Member States shall take the necessary steps to ensure that their communications on the prices applied in the Community are as recent, representative, accurate and complete as possible.
CHAPTER IV
Trade
SECTION 1
Imports
Article 7
The Member States shall communicate to the Commission, via IDES if possible, otherwise by fax:
1. not later than the 10th of each month for the previous month, the quantities of products covered by import licences issued under Sections 1 and 3 of Chapter II of Regulation (EC) No 1374/98, broken down by Combined Nomenclature (CN) code and by country of origin code (IDES computer code 6);
2. not later than the 10th of the month following the month of issue, the quantities of products covered by import licences issued under Section 2 of Chapter II of Regulation (EC) No 1374/98, broken down by CN code and by country of origin code (IDES computer code 7);
3. not later than the 10th of each month for the previous month, the quantities of products covered by import licences issued under Chapter III of Regulation (EC) No 1374/98, including the products falling within CN codes 0406 90 02 to 0406 90 06 referred to in Article 23 of that Regulation, broken down by CN code and by country of origin code (IDES computer code 6);
4. not later than the 10th of the month following the month of issue, the quantities of products covered by import licences issued under Commission Regulation (EC) No 2508/97(10), broken down by CN code and by country of origin code (IDES computer code 5);
5. not later than the 10th of each month for the previous month, the quantities of products, broken down by CN code and by country of origin code, covered by import licences subject to the application of non-preferential duties as referred to in the common customs tariff (IDES computer code 8).
Where applicable, the Member States shall inform the Commission that no certificates have been issued for the previous month.
Article 8
Before 1 April in respect of the previous year, using the model in Annex V, the Member States shall communicate the following data to the Commission, broken down by CN code, concerning the import licences issued on presentation of an IMA 1 certificate, where such certificates ensure compliance with a quota under Chapter II of Regulation (EC) No 1374/98, specifying the IMA 1 certificate numbers:
(a) the quantity of products covered by the certificate and the date of issue of the import licence,
(b) the quantity of products in respect of which the security has been released.
SECTION 2
Exports
Article 9
Member States shall communicate the following information to the Commission:
1. by 6 p.m. on each working day, with the exception of quantities covered by export licence applications either where no refund is applied for or where they are for supplies of food aid within the meaning of Article 10(4) of the Agreement on Agriculture concluded under the Uruguay Round:
(a) the quantities, broken down by code of the export refund nomenclature for milk products and by destination code, covered by applications submitted that day for licences:
(i) as referred to in Article 1 of Regulation (EC) No 174/1999, with the exception of those referred to in Article 17 of that Regulation (IDES computer code 1);
(ii) as referred to in Article 17 of Regulation (EC) No 174/1999 (IDES computer code 9);
where appropriate, the fact that none has been applied for;
(b) the quantities, broken down by code of the export refund nomenclature for milk products and by destination code, covered by applications for provisional licences as referred to in Article 8 of Regulation (EC) No 174/1999 submitted on that day, indicating the closing date for submitting tenders and the quantity of products covered by the invitation to tender or, in the case of an invitation to tender opened by the armed forces within the meaning of Article 36(1)(c) of Commission Regulation (EC) No 800/1999(11) not specifying the quantity, the approximate quantity broken down as specified above (IDES computer code 2);
(c) the quantities, broken down by code of the export refund nomenclature for milk products and by destination code, for which provisional licences as referred to in Article 8 of Regulation (EC) No 174/ 1999 were definitively issued or cancelled that day, indicating the body issuing the invitation to tender, the date of the provisional licence and the quantity it covers;
2. Before the 16th of each month for the previous month:
(a) the quantities, broken down by code of the export refund nomenclature for milk products, covered by licence applications cancelled under Article 10(3), first subparagraph (b), of Regulation (EC) No 174/1999, indicating the refund rate;
(b) the quantities, broken down by code of the export refund nomenclature for milk products, covered by licences returned before expiry of the period of validity, indicating separately the quantities covered by definitive licences issued under Article 20 of Regulation (EC) No 174/1999 and other quantities, with the relevant refund rate;
(c) the quantities, broken down by code of the export refund nomenclature for milk products, not exported after expiry of the period of validity of the relevant licences, indicating separately the unexported quantities covered by definitive licences issued under Article 20 of Regulation (EC) No 174/1999 and other quantities, with the relevant refund rate;
(d) the quantities, broken down by code of the export refund nomenclature for milk products, covered by definitive licences issued under Article 20 of Regulation (EC) No 174/1999;
(e) the quantities, broken down by code of the export refund nomenclature for milk products and by destination code, covered by export licence applications for supplies of food aid within the meaning of Article 10(4) of the Agreement on Agriculture concluded under the Uruguay Round;
(f) the quantities of milk products, broken down by CN code and by code of the country of origin, which are not in one of the situations referred to in Article 23(2) of the Treaty and are imported for use in the manufacture of products falling within CN code 0406 30, in accordance with the third indent of Article 11(6) of Regulation (EC) No 800/1999 and for which the authorisation referred to in Article 17(1) of Regulation (EC) No 174/1999 has been granted;
(g) the quantities for which application of Article 5(3) of Regulation (EC) No 174/1999 has been accepted, indicating the export refund nomenclature for milk products entered in Section 16 of the export licence issued and that for the product actually exported;
3. before the 16th of each month for month n - 4:
(a) the quantities, broken down by CN code and destination code, for which the formalities for export without a refund have been completed;
(b) the quantities, broken down by code of the export refund nomenclature for milk products, to which Article 18(3) of Regulation (EC) No 800/1999 has been applied, in so far as the refund rate applied is different to that indicated on the licence, and the differences between the refund for the destination indicated on the licence and that actually applied;
4. before the 16th of each month for the previous month, the quantities, broken down by CN code or, where applicable, by the code of the export refund nomenclature for milk products, covered by licence applications and where no refund is applied for, as referred to in:
(a) Article 18 of Regulation (EC) No 174/1999;
(b) Article 19 of Regulation (EC) No 174/1999.
5. The data referred to at point 1(a) and (b) shall be notified via IDES if possible, otherwise by fax; other data shall be notified by fax or telex.
SECTION 3
Inward processing traffic
Article 10
Before the 16th of each month for month n - 2, the Member States shall inform the Commission of the quantity, broken down by CN code and country of origin, of products as referred to in Article 1 of Regulation (EEC) No 804/68 intended for the manufacture of products as referred to in that Article or of goods as referred to in the Annex to that Regulation, under the inward processing arrangements defined in Article 114 of Council Regulation (EEC) No 2913/92(12), except for the data referred to in Article 9(2)(f).
CHAPTER V
General and final provisions
Article 11
The Commission shall keep available for the Member States the data transmitted by them.
Article 12
Regulation (EC) No 210/69 is hereby repealed.
References to the repealed Regulation shall be construed as references to this Regulation.
Regulation (EEC) No 210/69 shall continue to apply to the monthly transmission of data relating to the period before the application of this Regulation.
Article 13
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply with effect from 1 July 1999.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 July 1999.
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Commission Regulation (EC) No 1344/2002
of 24 July 2002
determining the extent to which applications submitted in July 2002 for import licences for the tariff quota for beef and veal provided for in Council Regulation (EC) No 2475/2000 for the Republic of 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 2673/2000 of 6 December 2000 laying down detailed rules for the application of the tariff quota for beef and veal provided for in Council Regulation (EC) No 2475/2000 for the Republic of Slovenia(1), and in particular Article 4(4) thereof,
Whereas:
Article 2(1) of Regulation (EC) No 2673/2000 fixes the quantity of fresh or chilled beef and veal originating in Slovenia which may be imported under special conditions from 1 July to 31 December 2002. The quantity of meat for which import licences have been submitted is such that applications may be granted in full,
HAS ADOPTED THIS REGULATION:
Article 1
Import licences shall be granted for the full quantities covered by applications submitted for the quota referred to in Regulation (EC) No 2673/2000 for the period 1 July to 31 December 2002.
Article 2
This Regulation shall enter into force on 25 July 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 July 2002.
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COUNCIL REGULATION (EC) No 162/94 of 24 January 1994 extending the provisional anti-dumping duty on imports of isobutanol originating in the Russian Federation
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European 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 11 thereof,
Having regard to the Commission proposal,
Whereas Commission Regulation (EEC) No 2720/93 (2) imposed a provisional anti-dumping duty on imports of isobutanol originating in the Russian Federation;
Whereas examination of the facts has not yet been completed and the Commission has informed the exporters known to be concerned of its intention to propose an extension of the validity of the provisional duty for an additional period of two months;
Whereas the exporters have raised no objections,
HAS ADOPTED THIS REGULATION:
Article 1
The validity of the provisional anti-dumping duty on imports of isobutanol originating in the Russian Federation imposed by Regulation (EEC) No 2720/93 is hereby extended for a period of two months. It shall cease to apply if, before the expiry of that period, the Council adopts definitive measures or the proceeding is terminated under Article 9 of Regulation (EEC) No 2423/88.
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, 24 January 1994.
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*****
COMMISSION REGULATION (EEC) No 3372/89
of 9 November 1989
fixing for the 1989/90 marketing year the minimum price for selling blood oranges, withdrawn from the market, to processing industries
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 1119/89 (2), and in particular Article 21 (4) thereof,
Whereas Article 2 of Commission Regulation (EEC) No 2448/77 of 8 November 1977 laying down conditions for the disposal of oranges withdrawn from the market to the processing industry, and amending Regulation (EEC) No 1687/76 (3), as last amended by Regulation (EEC) No 713/87 (4), provides that the minimum selling price is to be fixed before the start of each marketing year, taking account of the industry's normal supply price for the product concerned;
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 1989/90 marketing year, the minimum selling price referred to in Article 2 of Regulation (EEC) No 2448/77 shall be ECU 48,49 per tonne net, ex warehouse in which the goods are stored.
Article 2
This Regulation shall enter into force on 1 December 1989.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 November 1989.
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Commission Regulation (EC) No 2036/2003
of 19 November 2003
derogating from Regulation (EC) No 896/2001 as regards the fixing of adjustment coefficients to be applied to the reference quantity for each traditional operator under the tariff quotas for banana imports for 2004
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas(1), as last amended by Regulation (EC) No 2587/2001(2), and in particular Article 20 thereof,
Whereas:
(1) Article 4(1) of Commission Regulation (EC) No 896/2001 of 7 May 2001 laying down detailed rules for applying Council Regulation (EEC) No 404/93 as regards the arrangements for importing bananas into the Community(3), as last amended by Regulation (EC) No 1439/2003(4), lays down the method for calculating the reference quantity for traditional operators A/B and C for 2004 and 2005 on the basis of the use of import licences for those operators during a reference year.
(2) According to the reports from the Member States pursuant to Article 5(2) of Regulation (EC) No 896/2001, the sum of the reference quantities thus determined for 2004 is 2197147,342 tonnes for all traditional operators A/B and 630713,105 tonnes for all traditional operators C. As these amounts are below the quantities available under the tariff quotas, applying Article 5(3) of the said Regulation would entail the fixing of an adjustment coefficient which would increase the reference quantities for traditional operators.
(3) Traditional operators could be allocated an exceptionally small quantity owing to the extreme hardship affecting their activity during the reference year. In accordance with Article 5(5) of Regulation (EC) No 896/2001, the Commission may take appropriate measures which are justified for tackling specific situations within the limits of tariff quotas A/B and C. Furthermore, the notification by certain Member States of the sum of the reference quantities established for traditional operators in accordance with Article 4(1) of Regulation (EC) No 896/2001 could be adjusted on completion of the legal proceedings now in hand.
(4) Until those situations have progressed, and in order to enable, as appropriate, the necessary measures to be taken regarding the operators concerned, it is advisable, for the time being, not to fix adjustment coefficients to be applied, for 2004, to the reference quantity for each traditional operator.
(5) A derogation from Regulation (EC) No 896/2001 should therefore be made.
(6) In order that operators have sufficient time to submit licence applications for the first quarter of 2004, this Regulation should enter into force forthwith.
(7) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Bananas,
HAS ADOPTED THIS REGULATION:
Article 1
By derogation from Article 5(3) of Regulation (EC) No 896/2001, adjustment coefficients to be applied to the reference quantity for traditional operators for tariff quotas A/B and C for 2004 shall not be fixed for the time being.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 November 2003.
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COMMISSION REGULATION (EC) No 1296/97 of 3 July 1997 fixing for the 1997/98 marketing year the production aid for tinned pineapple and the minimum price to be paid to pineapple producers
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 525/77 of 14 March 1977 establishing a system of production aid for tinned pineapple (1), as last amended by Regulation (EEC) No 1699/85 (2), and in particular Article 8 thereof,
Whereas, pursuant to Article 4 of Regulation (EEC) No 525/77, the minimum price to be paid to producers is to be determined on the basis of the minimum price applicable during the preceding marketing year, and the trend of production costs in the fruit and vegetable sector;
Whereas Article 5 of the said Regulation lays down the criteria for fixing the amount of production aid; whereas account must, in particular, be taken of the aid fixed for the previous marketing year adjusted to take account of changes in the minimum price to be paid to producers, the non-member country price and, if necessary, the pattern of processing costs assessed on a flat-rate basis;
Whereas the Management Committee for Products Processed from Fruit and Vegetables has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
For the 1997/98 marketing year:
(a) the minimum price referred to in Article 4 of Regulation (EEC) No 525/77 to be paid to producers for pineapples; and
(b) the production aid referred to in Article 5 of the said Regulation for tinned pineapple,
shall be as set out in the Annex.
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, 3 July 1997.
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*****
COMMISSION REGULATION (EEC) No 1185/85
of 7 May 1985
fixing for the 1984/85 marketing year the average world market price, the indicative yield and the amount to be deducted from the aid payable in Greece for linseed
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 569/76 of 15 March 1976 laying down special measures for linseed (1), and in particular Article 2 (4) thereof,
Whereas an average world market price for linseed must be determined each year according to the criteria laid down in Council Regulation (EEC) No 1774/76 (2);
Whereas Article 4 of Commission Regulation (EEC) No 1799/76 (3), as last amended by Regulation (EEC) No 1977/80 (4), provides that this average price is to be the arithmetic mean of the world market prices as referred to in that Article and recorded each week over a representative period;
Whereas the most representative period for the marketing of Community linseed may be taken to be that from 3 September 1984 to 22 March 1985; whereas this is therefore the period to be taken into account;
Whereas the application of all these provisions produces the average world market price for linseed specified below;
Whereas Article 81 (3) of the Act of Accession of Greece provides that the amount of aid for linseed harvested in Greece shall be reduced by the amount of customs duties applied by that country to imports of this product from non-member countries;
Whereas Article 2 (2) of Regulation (EEC) No 569/76 provides that the subsidy is to be granted for a production figure obtained by applying an indicative yield to the areas sown and harvested; whereas that yield must be determined by applying the criteria laid down in Regulations (EEC) No 569/76 and (EEC) No 1774/76;
Whereas, in accordance with Article 17 (1) of Regulation (EEC) No 1799/76, the producer Member States have supplied the Commission with the results of the sampling, carried out pursuant to Article 2a (2) of that Regulation, regarding the yields per hectare of seed harvested from each of the types of flax referred to in Articles 7a and 10a of the said Regulation in the homogeneous production areas; whereas, on the basis of those results, the indicative yield for linseed should be that specified below;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS REGULATION:
Article 1
For the 1984/85 marketing year, the average world market price for linseed shall be 38,227 ECU per 100 kilograms.
Article 2
For the 1984/85 marketing year the aid for linseed shall be reduced by 0,055 ECU per 100 kilograms for seeds harvested in Greece.
Article 3
For the 1984/85 marketing year, the indicative yields for linseed and the relevant production zones shall be as specified in the Annex.
Article 4
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 May 1985.
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COMMISSION REGULATION (EC) No 1459/2004
of 16 August 2004
amending Council Regulation (EC) No 2368/2002 implementing the Kimberley Process certification scheme for the international trade in rough diamonds
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2368/2002 implementing the Kimberley Process certification scheme for the international trade in rough diamonds (1), as last amended by Commission Regulation (EC) No 1458/2004 (2), and in particular Article 20 thereof,
Whereas:
(1)
Article 20 of Regulation (EC) No 2368/2002 provides for the list of participants in the Kimberley Process certification scheme in Annex II to be amended.
(2)
The Chair of the Kimberley Process certification scheme, through his Chair’s Notice of 9 July 2004, has provided an updated list of participants in the scheme. The updating concerns the removal from the list of the Republic of Congo. Annex II should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Annex II to Regulation (EC) No 2368/2002 is hereby replaced by the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 August 2004.
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COMMISSION REGULATION (EC) No 1226/1999
of 28 May 1999
concerning the derogations to be granted for insurance services statistics
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC, Euratom) No 58/97 of 20 December 1996 concerning structural business statistics(1), as last amended by Regulation (EC, Euratom) No 410/98(2), and in particular Article 12(x) thereof,
(1) Whereas Regulation (EC, Euratom) No 58/97 established a common framework for the production of Community statistics on the structure, activity, performance and competitiveness of the insurance sector in the Community;
(2) Whereas it is necessary to grant derogations concerning insurance services statistics;
(3) Whereas the measures provided for in this Regulation are in accordance with the opinion of the Statistical Programme Committee,
HAS ADOPTED THIS REGULATION:
Article 1
In accordance with Article 11 of Regulation (EC, Euratom) No 58/97, derogations to the characteristics of List A of Annex 5 thereto are specified in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 May 1999.
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COMMISSION DECISION of 1 July 1997 amending Commission Decision 97/252/EC drawing up provisional lists of third country establishments from which the Member States authorize imports of milk and milk-based products for human consumption (Text with EEA relevance) (97/480/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 95/408/EC of 22 June 1995 on the conditions for drawing up, for an interim period, provisional lists of third country establishments from which the Member States are authorized to import certain products of animal origin, fishery products or live bivalve molluscs (1), as last amended by Council Decision 97/34/EC (2), and in particular Articles 2 (1) and 7 thereof,
Whereas Commission Decision 95/340/EEC (3), as last amended by Decision 96/584/EC (4), draws up a list of third countries from which the Member States authorize imports of milk and milk-based products;
Whereas the health and veterinary certification requirements for imports of milk and milk-based products from the countries appearing on that list have been laid down in Commission Decision 95/343/EEC (5), as last amended by Decision 97/115/EC (6);
Whereas Commission Decision 97/252/EC (7) draws up provisional lists of third country establishments from which the Member States authorize imports of milk and milk-based products for human consumption;
Whereas the Commission has received from Canada and Israel lists of establishments with guarantees that they fully meet the appropriate Community health requirements and that should an establishment fail to do so its export activities to the European Community will be suspended;
Whereas Commission Decision 97/299/EC (8) draws up a list of establishments in the Czech Republic;
Whereas Argentina, Australia, New Zealand and Switzerland have amended the lists of establishments in Decision 97/252/EC; whereas these amendments should therefore be published;
Whereas the Commission has been unable to ascertain in the third countries other than those whose establishments are listed in Decision 97/252/EC the compliance of their establishments with Community requirements and the validity of the guarantees provided by the competent authorities, particularly by means of on-the-spot inspections; whereas it is therefore necessary to extend the period they have been granted;
Whereas it is necessary to ensure the consistency of decisions drawing up lists of establishments; whereas Decision 97/252/EC should therefore be amended;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
1. In Article 1 (1) of Decision 97/252/EC, the words 'third country` are inserted before 'establishments`.
2. Article 1 (2) of Decision 97/252/EC is replaced by the following:
'Up to 1 January 1998 Member States may authorize imports of milk and milk-based products from establishments in third countries other than those listed in the Annex hereto.`
Article 2
1. The Annex to Decision 97/252/EC is supplemented by Annex I to this Decision for Canada and Israel.
2. The Annex to Decision 97/252/EC is replaced by Annex II to this Decision for Argentina, Australia, New Zealand and Switzerland.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 1 July 1997.
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COUNCIL REGULATION (EC) No 2129/94 of 19 August 1994 applying to South Africa some of the advantages granted by the Community to developing countries under the scheme of generalized tariff preferences
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 South Africa's state of development and the deterioration of its economy warrant the granting of the benefit of generalized preferences to enable it to step up its exports in order to give a spur to its economic development, foster its industrialization and increase its growth rate;
Whereas, bearing in mind the progress made in reviewing the Community scheme, the benefit of the generalized preferences arrangements should now be extended to a number of industrial products originating in South Africa,
HAS ADOPTED THIS REGULATION:
Article 1
The benefit of the arrangements provided for in Article 1 of Council Regulation (EEC) No 3831/90 of 20 December 1990 applying generalized tariff preferences for 1991 in respect of certain industrial products originating in developing countries (1) shall be granted in respect of the products originating in South Africa listed in the Annexes I and II to this Regulation, subject to the conditions and relevant arrangements laid down by Regulation (EEC) No 3831/90.
Article 2
Annex I to Regulation (EEC) No 3831/90 shall be supplemented by the entries set out in Annex I to this Regulation.
The line '388 South Africa' shall be added to Part A of Annex III to Council Regulation (EEC) No 3831/90.
Article 3
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, 19 August 1994.
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Commission Regulation (EC) No 1915/2001
of 28 September 2001
fixing the maximum aid for concentrated butter for the 255th special invitation to tender opened under the standing invitation to tender provided for in Regulation (EEC) No 429/90
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), as last amended by Regulation (EC) No 1670/2000(2), and in particular Article 10 thereof,
Whereas:
(1) In accordance with Commission Regulation (EEC) No 429/90 of 20 February 1990 on the granting by invitation to tender of an aid for concentrated butter intended for direct consumption in the Community(3), as last amended by Regulation (EC) No 124/1999(4), the intervention agencies are opening a standing invitation to tender for the granting of aid for concentrated butter; Article 6 of that Regulation provides that in the light of the tenders received in response to each special invitation to tender, a maximum amount of aid is to be fixed for concentrated butter with a minimum fat content of 96 % or a decision is to be taken to make no award; the end-use security must be fixed accordingly.
(2) In the light of the tenders received, the maximum aid should be fixed at the level specified below and the end-use security determined accordingly.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
For the 255th special invitation to tender under the standing invitation to tender opened by Regulation (EEC) No 429/90, the maximum aid and the amount of the end-use security shall be as follows:
TABLE
Article 2
This Regulation shall enter into force on 29 September 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 September 2001.
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COMMISSION REGULATION (EC) No 99/2007
of 1 February 2007
determining the extent to which applications lodged in January 2007 for import rights in respect of frozen beef intended for processing may be accepted
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),
Having regard to Commission Regulation (EC) No 727/2006 of 12 May 2006 opening and providing for the administration of an import tariff quota for frozen beef intended for processing (1 July 2006 to 30 June 2007) (2), and in particular Article 5(4) thereof,
Whereas:
(1)
Article 3(1) of Regulation (EC) No 727/2006 fixes the quantities of frozen beef intended for processing which may be imported under special terms in the period from 1 January to 30 June 2007.
(2)
Article 5(4) of Regulation (EC) No 727/2006 lays down that the quantities applied for may be reduced. The applications lodged relate to total quantities which exceed the quantities available. Under these circumstances and taking care to ensure an equitable distribution of the available quantities, it is appropriate to reduce proportionally the quantities applied for,
HAS ADOPTED THIS REGULATION:
Article 1
Every application for import rights lodged in accordance with Regulation (EC) No 727/2006 for the period 1 January to 30 June 2007 shall be granted to the following extent, expressed as bone-in beef:
(a)
6,04342 % of the quantity requested for beef imports intended for the manufacture of ‘preserves’ as defined by Article 3(1)(a) of Regulation (EC) No 727/2006,
(b)
33,499412 % of the quantity requested for beef imports intended for the manufacture of products as defined by Article 3(1)(b) of Regulation (EC) No 727/2006.
Article 2
This Regulation shall enter into force on 2 February 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 1 February 2007.
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COUNCIL REGULATION (EC) No 2158/1999
of 11 October 1999
concerning a ban on the supply to Indonesia of equipment which might be used for internal repression or terrorism
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 301 thereof,
Having regard to Council Common Position 1999/624/CFSP of 16 September 1999, concerning restrictive measures against the Republic of Indonesia(1),
Having regard to the proposal from the Commission,
Whereas:
(1) Common Position 1999/624/CFSP, in view of the current situation in East Timor where serious violations of human rights and international humanitarian law are taking place, provides for a ban on the supply to Indonesia of equipment which might be used for internal repression or terrorism;
(2) That measure falls within the scope of the Treaty establishing the European Community;
(3) Therefore, and with a view to avoiding distortion of competition, Community legislation is necessary for the implementation of that measure as far as the territory of the Community is concerned; such territory is deemed to encompass, for the purposes of this Regulation, all the territories of the Member States to which the Treaty establishing the European Community is applicable, under the conditions laid down in that Treaty;
(4) A procedure should be provided to amend, if necessary, the list of equipment which might be used for internal repression or terrorism;
(5) There is a need for the Commission and the Member States to inform each other of the measures taken under this Regulation and of other relevant information at their disposal in connection with this Regulation, without prejudice to existing obligations with regard to certain items concerned;
(6) In view of the possibly limited duration of the Regulation, it should be provided that sanctions can be imposed immediately where the provisions of the Regulation are infringed,
HAS ADOPTED THIS REGULATION:
Article 1
1. It shall be prohibited, knowingly and intentionally, to:
(a) sell, supply, export or ship, directly or indirectly, equipment listed in Annex I, parts A and B, whether or not originating in the Community, to any person or body in the Republic of Indonesia or to any person or body for the purpose of any business carried on in, or operated from, the territory of the Republic of Indonesia;
(b) participate in related activities the object or effect of which is, directly or indirectly, to promote the transactions or activities referred to in subparagraph (a).
2. The competent authorities of the Member States, listed in Annex II, may authorise the transactions or activities referred to in paragraph 1, in respect of the items listed in part B of Annex I, when they have obtained conclusive evidence that the end-use of these items is not for internal repression or terrorism.
Article 2
The Council shall adopt by qualified majority amendments to the list set out in Annex I on the basis of a proposal from the Commission.
The Annex shall not include items specially designed or modified for military use already subject to the arms embargo established on the basis of Article 1 of Common Position 1999/624/CFSP.
Article 3
Each Member State shall determine the sanctions to be imposed where the provisions of this Regulation are infringed.
Pending the adoption, where necessary, of any legislation to this end, the sanctions to be imposed where the provisions of this Regulation are infringed shall be those determined by the Member States in accordance with Article 4 of Council Regulation (EC) No 926/98 of 27 April 1998 concerning the reduction of certain economic relations with the Federal Republic of Yugoslavia(2).
Article 4
The Commission and the Member States shall, insofar as they are not otherwise already obliged to do so, inform each other of the measures taken under this Regulation and supply each other with other relevant information at their disposal, such as breaches and enforcement problems, judgments handed down by national courts or decisions of international fora and authorisations granted under Article 1(2).
Article 5
This Regulation shall apply:
- within the territory of the Community including its air space,
- on board any aircraft or any vessel under the jurisdiction of a Member State,
- to any person elsewhere who is a national of a Member State, and
- to any body which is incorporated or constituted under the law of a Member State.
Article 6
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply until 17 January 2000.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 11 October 1999.
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COMMISSION REGULATION (EC) No 991/2008
of 9 October 2008
amending the representative prices and additional import duties for certain products in the sugar sector fixed by Regulation (EC) No 945/2008 for the 2008/2009 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (single CMO Regulation) (1),
Having regard to Commission Regulation (EC) No 951/2006 of 30 June 2006 laying down detailed rules for the implementation of Council Regulation (EC) No 318/2006 as regards trade with third countries in the sugar sector (2), and in particular Article 36(2), second subparagraph, second sentence thereof,
Whereas:
(1)
The representative prices and additional duties applicable to imports of white sugar, raw sugar and certain syrups for the 2008/2009 marketing year are fixed by Commission Regulation (EC) No 945/2008 (3). These prices and duties have been last amended by Commission Regulation (EC) No 980/2008 (4).
(2)
The data currently available to the Commission indicate that those amounts should be amended in accordance with the rules and procedures laid down in Regulation (EC) No 951/2006,
HAS ADOPTED THIS REGULATION:
Article 1
The representative prices and additional duties applicable to imports of the products referred to in Article 36 of Regulation (EC) No 951/2006, as fixed by Regulation (EC) No 945/2008 for the 2008/2009, marketing year, are hereby amended as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 10 October 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 October 2008.
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COMMISSION DECISION
of 23 October 2007
on the State aid C 34/06 (ex N 29/05, ex CP 13/04) which the Federal Republic of Germany is planning to implement for the introduction of digital terrestrial television (DVB-T) in North Rhine-Westphalia
(notified under document number C(2007) 5109)
(Only the German version is authentic)
(Text with EEA relevance)
(2008/708/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the provisions cited above (1) and having regard to their comments,
Whereas:
I. PROCEDURE
(1)
By letter dated 26 January 2004, the Commission requested information from the Federal Government regarding press reports about public support to the introduction of digital terrestrial television (DVB-T) in North Rhine-Westphalia (hereafter also NRW). The Federal Government replied to this request by letter dated 23 March 2004, registered on the same day. The Commission services met on 2 June 2004 with the authority in charge of the present measure, the Landesanstalt für Medien Nordrhein-Westfalen (the media authority of North Rhine-Westphalia, hereafter LfM) and on 10 December 2004 with representatives of the government of the Land of North Rhine-Westphalia.
(2)
By letter dated 13 January 2005, registered on the same day, the Federal Government notified the Commission in accordance with Article 88(3) of the EC Treaty of a measure concerning the financing of the roll-out of DVB-T in North Rhine-Westphalia. The Federal Government notified for reasons of legal certainty.
(3)
By letter dated 10 March 2005, the Commission requested additional information to which the Federal Government replied, after extension of the deadline, by letter dated 29 April 2005, registered on the same day. The Commission services met with representatives of the media authority and of the Land of North Rhine-Westphalia on 23 June 2005 where the latter submitted additional information.
(4)
On 9 November 2005, the Commission adopted a final decision declaring the public funding of DVB-T in Berlin-Brandenburg incompatible with the common market (2). In view of the similarities between the two cases, the Commission and Germany agreed to suspend the notification procedure (3) in order to allow the authorities to assess the implications of the Berlin-Brandenburg decision for the present case. At the same time, the notification procedure was also suspended with respect to another similar measure concerning the Land of Bavaria which was notified to the Commission on 8 December 2004 (4).
(5)
By letter dated 12 April 2006, the Commission requested Germany to determine its position in the pending notification procedure within one month. By letter dated 12 May 2006, registered on the same day, Germany informed the Commission that it does not intend to withdraw or modify the notified measure concerning NRW.
(6)
By letter dated 19 July 2006, the Commission informed the Federal Republic of Germany that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the measure. The Commission decision to initiate the procedure was published in the Official Journal of the European Union (5). The Commission invited interested parties to submit their comments on the measure.
(7)
Germany responded, following the extension of the deadline, by letter dated 4 October 2006, registered on the same day, to the request for comments in the opening decision. The Commission also received comments from the European Satellite Operators Association (ESOA) (6), the Verband Privater Kabelnetzbetreiber e. V. (ANGA) (7) and ish NRW GmbH (ish) (8).
(8)
By letter of 19 December 2006, the Commission forwarded those comments to Germany, requesting observations. The authorities submitted their observations, following an extension of the deadline, by letter dated 16 February 2007, registered on the same date. On 19 April 2007, the Commission held a meeting with LfM to allow for a last exchange of views before finalising its assessment. By email dated 24 May 2007, the Commission sent a further informal request for information to which the German authorities responded by email dated 5 July 2007, registered on 6 July 2007.
II. DETAILED DESCRIPTION OF THE MEASURE
1. BACKGROUND
(9)
The notified measure concerns the introduction of digital terrestrial television in North Rhine-Westphalia. It is to be seen against the background of the digitisation of broadcasting, which concerns all commonly available transmission platforms for television signals, i.e. cable, satellite and terrestrial transmission.
(10)
The prime benefit of digitisation is the increased transmission capacity on all platforms achieved by a more efficient use of the frequency spectrum. This may enable the offering of new or improved broadcasting services and the switch-off of analogue terrestrial TV could permit the release of frequencies which could be relocated to new uses and the potential arrival of new entrants could increase market competition and innovation. In view of these advantages, the Commission actively supports digitisation (9). The process is currently taking place in Germany as well as in other EU Member States and the overall objective is to complete analogue switch-off throughout the EU by the beginning of 2012 (10).
(11)
In order to promote the digitisation of broadcasting transmission in Germany, the Digital Broadcasting Initiative (Initiative Digitaler Rundfunk, IDR) was launched at the end of 1997 by decision of the Federal Government, following a decision by the Minister-Presidents of the Länder. Under this initiative, the Federal Government, the Länder and various other market participants drew up recommendations on digitisation. An initial IDR report was approved by the Federal Government in August 1998 and was followed by an overall plan for the introduction of digital broadcasting, called Startszenario 2000 (11). Among others, this plan stated that the digitisation of cable, satellite and terrestrial broadcasting would be completed in Germany by 2010 at the latest.
(12)
In North Rhine-Westphalia, the switchover project has been led by LfM. According to Section 27(1) of the Media Law of North Rhine-Westphalia (Landesmediengesetz Nordrhein-Westfalen) (12), LfM has the task of supporting and guiding the switchover from the analogue to the digital transmission (die LfM unterstützt und begleitet die Umstellung der analogen auf digitale Übertragung). In the context of the digital switchover, it has to ensure the provision of a variety of programme offers by means of the interplay of the different transmission means at appropriate conditions (Versorgung mit vielfältigen Programmangeboten durch das Zusammenspiel der verschiedenen Übertragungswege zu angemessenen Bedingungen). Another general task of LfM consists in the supervision of the commercial broadcasters.
(13)
Against the background of the digitisation of cable, satellite and terrestrial transmission, the present measure deals only with the switchover on the terrestrial platform. In general, terrestrial transmission concerns two types of operators which may or may not be integrated: network operators which take care of the transmission of broadcasting signals, and broadcasters which produce and package content.
(14)
Since the emergence of cable and satellite in the 1980s, the market share of terrestrial broadcasting has fallen sharply in Germany as a whole. Based on the information provided by the German authorities, cable TV networks were rolled out, with important State support, during the 1980s (13). The German authorities submit that virtually every household in Germany is capable of receiving free-to-air television programmes by satellite.
(15)
This decline in market share is depicted in the following figure which was also included in the opening decision.
Figure 1
Market share of terrestrial platform countrywide and in NRW (14)
(16)
Starting in 2004, following the digital switchover, the declining market share of the terrestrial platform was stabilised and the trend has been reversed since 2005. Based on information contained in the Digitisation Report 2007 (15), the household reception figures in Germany in mid-2007 were: 53,7 % cable, 42,5 % satellite, 11,5 % terrestrial (2 % increase as compared to 2006). According to the report, the share of digital terrestrial television has considerably increased: 3,6 million households use DVB-T, nearly twice as many as in the preceding year. In line with the Report, terrestrial transmission has reached a digitisation of nearly 90 %. The Digitisation Report also provides a regional breakdown of television reception over DVB-T (16). According to these data, the market shares of household reception in NRW in the ‘core areas’ (Kerngebiete), which only comprise areas where DVB-T is available, increased from 9,5 % in 2005 to 16,5 % in 2007 (see figure 2).
Figure 2
Market share of the digital terrestrial platform in Germany and NRW after the switchover
(17)
From a technical point of view, the development of digital terrestrial transmission requires the update of transmission equipment by the network operator and the allocation of frequencies to be used for transmission. In order to reap the benefits of digitisation, existing analogue transmissions need to be phased out. In the period where analogue and digital broadcasts are operated in parallel (the simulcast period), switchover may actually aggravate spectrum scarcity (17). There is a need for the market players to agree on a common date for switching on digital and switching off analogue transmission so as to overcome the lack of frequency spectrum and to minimise the costs of parallel transmission. In view of the complexity of the terrestrial switchover, the Startszenario 2000 envisaged a gradual introduction of DVB-T in the different Länder, starting with those areas with higher population density (18).
(18)
As a first initiative in North Rhine-Westphalia, on 27 November 1998, LfM decided to launch a DVB-T test project (DVB-T Feldversuch) which took place in Cologne in the years 1999 and 2000 (19). In view of the objectives of the Startszenario 2000, the authorities in North Rhine-Westphalia have later on agreed to cooperate with the competent authorities in the Northern Länder of Lower Saxony (Niedersachsen), Schleswig-Holstein, Hamburg and Bremen and to carry out the digitisation of terrestrial transmission simultaneously in order to gain efficiencies.
(19)
On 20 October 2003, LfM; the public service broadcasters (PSBs) ARD, ZDF and WDR Cologne (20); the commercial service broadcasters (CSBs) RTL Television (RTL), VOX Film und Fernseh-GmbH & Co. KG (VOX) and ProSiebenSat.1 Media AG (ProSiebenSat.1) signed a general agreement on the introduction of DVB-T in North Rhine-Westphalia (Vereinbarung zur Einführung des digitalen terrestrischen Fernsehens (DVB-T) in Nordrhein-Westfalen). The agreement identified the two areas of Cologne/Bonn and Ruhr/Düsseldorf where DVB-T was to be launched next after the successful switchover in the area of Berlin-Potsdam, and defined a binding timetable for the switchover. The agreement did not contain any specific details about the envisaged funding measure. It merely noted that ‘as support measure, the LfM is providing funding for the technical infrastructure for DVB-T transmission in North Rhine-Westphalia’. In addition, the annex contained a reference to the elaboration of a funding concept for citizens on social grounds (21).
(20)
The general agreement of 20 October 2003 was completed by a cooperation agreement (Kooperationsvereinbarung zur Einführung des digitalen terrestrischen Fernsehens (DVB-T) in Nordrhein-Westfalen) signed by the same parties (WDR also representing the broadcasters of ARD) as well as the Land of North Rhine-Westphalia on 10 December 2003. The cooperation agreement defined common principles for communicating about DVB-T and designated the bodies responsible for the execution of the agreement, in particular a steering committee (Lenkungsausschuss) for decision-making and a project office (Projektbüro) for execution. The project office was set up by contract between LfM (LfM Nova GmbH), WDR (also representing the broadcasters from ARD) and ZDF of 14 January 2004.
(21)
The overall transmission capacity of the DVB-T network comprises six multiplexes (22) conceived to carry a total of 24 programme channels both in the Cologne/Bonn and the Düsseldorf/Ruhr areas. In order to start digital terrestrial transmission, the frequencies needed to be allocated by means of licences both to broadcasters for the transmission of their programmes, and network operators for the operation of the DVB-T platform. Regarding the broadcasting of programmes, both in the Cologne/Bonn and the Düsseldorf/Ruhr areas, one multiplex was granted to each of the public service broadcasters (ARD, ZDF and WDR). The capacity reserved for commercial service broadcasters has been tendered by LfM and the respective DVB-T licences were allocated on 14 May 2004. Concerning the operation of the network, the Telecommunications and Postal Regulatory Authority (Regulierungsbehörde für Telekommunikation und Post, RegTP - now Bundesnetzagentur für Elektrizität, Telekommunikation, Post und Eisenbahn, BNetzA) granted the licences in 2004 (for more details on the allocation procedures, see recitals 24-30 below).
(22)
In line with the dates fixed in the general agreement of 20 October 2003, digital terrestrial transmissions were launched on 24 May 2004 in the Cologne/Bonn area and on 8 November 2004 in the Düsseldorf/Ruhr area. The analogue terrestrial transmission (ATT) of the CSBs was halted as of the respective launch dates. The ATT of the PSB channels ARD-Das Erste, ZDF and WDR continued in parallel for a simulcast phase of about five months until it was switched off in the Cologne/Bonn area on 8 November 2004 and in the Düsseldorf/Ruhr area on 4 April 2005. On 19 November 2004, LfM issued a directive on the financial support for DVB-T (Förderrichtlinie DVB-T) taking effect retroactively as of 3 May 2004.
(23)
Following the start in the Cologne/Bonn and Düsseldorf/Ruhr areas, DVB-T is being continuously rolled-out to other areas of North Rhine-Westphalia. On 29 May 2006, DVB-T transmissions were launched in two more areas (Wuppertal and Ostwestfalen-Lippe). On 12 June 2007 DVB-T started in Münsterland and it is foreseen to launch digital terrestrial television in Aachen and South Westphalia in November 2007. Contrary to the Cologne/Bonn and Düsseldorf/Ruhr areas, the switchover in these zones is being carried out only by the public service broadcasters, without the participation of CSBs (23).
(24)
In accordance with Section 52a(1) of the State Broadcasting Treaty (24), Section 28 of the Media Law of NRW states that ‘for the first allocation of digital terrestrial broadcasting capacities, priority shall be given to those broadcasters with programme channels which are broadcast in the given transmission area in analogue form.’
(25)
On 14 November 2003, LfM issued the rules for the allocation of the terrestrial broadcasting transmission capacity (Zuweisungssatzung). However, the digitisation also required the use of the existing analogue terrestrial television channels, which were allocated to RTL Television (by the RTL Television GmbH), VOX/DTCP (by VOX Film-und Fernseh GmbH & Co. KG which also belongs to the RTL group with DTCP GmbH) and SAT1 (Sat1 Satelliten Fernsehen GmbH, hereafter ProSiebenSat.1). The respective analogue licences were granted in 2002 and 2003 by LfM and would have ended on 21 July 2008 for RTL Television, 31 January 2007 for VOX and 31 October 2010 for SAT1. By letters of 13 November 2003, LfM requested the commercial broadcasters RTL, VOX and ProSiebenSat.1 to confirm in writing their willingness to return their analogue channels in order to be able to proceed with the allocation of the transmission capacity. Further to the receipt of the confirmation by the broadcasters (25), the announcement of LfM dated 4 December 2003 for the first allocation of DVB-T transmission capacities to commercial broadcasters concerning the Cologne/Bonn and the Düsseldorf/Ruhr areas was published in the Bulletin of the Land (Landesministerialblatt) on 30 December 2003 (26).
(26)
The tender covered the part of the transmission capacity reserved for CSBs, i.e. three multiplexes or 12 programme channels in each of the target areas. The tender specifications spelled out the selection criteria in case there would be more applicants than programme channels available and a decision would have to be made between the different applicants (Vorrangentscheidung). In line with the provisions of the Media Law of NRW, the criteria included the contribution of a programme channel to a balanced overall programme offer (Programmvielfalt) and to pluralism of broadcasters (Anbietervielfalt) as well as the presence of a broadcaster in the ATT network (27). The tender did not specify the costs of transmitting a programme channel via DVB-T nor any intention to financially support the switchover. The deadline for submitting offers was 3 March 2004.
(27)
LfM received a total of 21 offers from broadcasters and media service providers in response to the tender announcement. ProSiebenSat.1 and the RTL group applied with a set of programs (Programmbouquets) for one multiplex each (28). On 23 April 2004, the Media Commission (Medienkommission) of LfM decided on the allocation of the programme channels reserved for CSBs. On the basis of this decision, LfM issued an order for the allocation of the respective DVB-T licences on 14 May 2004. According to the decision, a multiplex was allocated to each of the commercial broadcasting groups RTL and ProSiebenSat.1, and the capacity of the remaining one multiplex was allocated to broadcasters of individual programme channels: VIVA (VIVA Fernsehen GmbH), CNN (Turner Broadcasting Systems Deutschland GmbH), Eurosport (Eurosport S.A.), and onyx.tv/Terra Nova (Onyx Television GmbH) (29).
(28)
According to Section 12 paragraph (2) of the Media Law of North Rhine-Westphalia, also referred to in the tender announcement, first-time licences can be awarded for a period of between 4 and 10 years. By order of the LfM of 14 May 2004, the licences were granted to ProSiebenSat.1, RTL and CNN respectively for five years, to VIVA until 2 December 2008, to Eurosport S.A. for three years and to TerraNova until 17 June 2009. However, as of 1 July 2007, TerraNova left the DVB-T platform and was replaced by Tele 5 (TM-TV GmbH) (30) which was chosen by LfM out of seven applicants. Table 1 provides an illustration of the switchover process in the Cologne/Bonn area, including a simulcast period for PSBs but not for CSBs as indicated in recital 22 above.
Table 1
Terrestrial transmission in Cologne/Bonn before and after switchover
Transmission channel
Analogue TV
Network service area as of 4.4.2005
Programmes as of 24.5.2004
Programmes as of 8.11.2004
Programmes as of 4.4.2005
K 05
Sat.1
ARD - Simulcast
X
X
K 26
ZDF
countrywide
ZDF Bouquet
ZDF Bouquet
ZDF Bouquet
K 29
ZDF
D
ZDF - Simulcast
RTL Bouquet
RTL Bouquet
K 34
VOX
ZDF bouquet
X
X
K 36
RTL
E
Viva/Eurosport/CNN/Terra Nova (Tele5 as of 1.7.2007)
K 43
ARD
C
RTL/VOX/ProSieben/Sat.1
Pro7Sat.1 Bouquet
Pro7Sat.1 Bouquet
K 49
WDR
B
WDR - Simulcast
WDR Bouquet
WDR Bouquet
K 65
X
A
ARD Bouquet
ARD Bouquet
ARD Bouquet
K 66
X
N24/Kabel 1/RTL II/Super RTL
Viva/Eurosport/CNN/Terra Nova
X
Explanations: The network services for the DVB-T transmission channels K26, K29, K36 and K43 are provided by T-Systems, while the transmission channels K49 and K65 were allocated to WDR but transmission is also partly provided by T-Systems. Analogue transmissions are in italics. A ‘bouquet’ means a set of four programmes transmitted over one digital multiplex. The allocation of DVB-T channels to broadcasters in the Düsseldorf/Ruhr area is not presented in this table. The switchover in the Cologne/Bonn area was completed on 8 November 2004 but there were some minor technical adjustments concerning the allocation of channels on 4 April 2005 due to the switchover in the Düsseldorf/Ruhr area. Following the simulcast period, transmission channels K05, K65 and K66 are currently, according to the information available to the Commission, not used for television transmission. The overview is only provided for illustrative purposes.
(29)
At the request of the State Chancellery (Staatskanzlei) of the Land of North Rhine-Westphalia, the Telecommunications and Postal Regulatory Authority (RegTP) launched an open procedure for frequency allocation (Frequenzzuteilungsverfahren) on 4 February 2004 (31). Similarly to the broadcasters, the operators of the analogue terrestrial network have previously renounced their analogue licences which were unlimited in time. The overall need of digital transmission was broken down into five network service areas (Versorgungsbedarfe A to E) which correspond to the individual transmission channels (multiplexes in digital mode). The relevant legislative act (Verfügung) did not note that there was one additional, countrywide service area which had already been published on 27 November 2002 (32). This service area was allocated to T-Systems, a subsidiary of Deutsche Telekom, and serves to transmit the ZDF programme channels.
(30)
In the allocation procedure in North Rhine-Westphalia, T-Systems applied for the frequencies for the service areas C, D and E which correspond to the multiplexes dedicated to commercial service broadcasters, and WDR for the frequencies for the service areas A and B, which were reserved for public service broadcasters. Since there was only one application for each of the five service areas, RegTP allocated the frequencies through the application procedure and did not need to launch the second stage of the frequency allocation procedure, i.e. the tender procedure. Since T-Systems and WDR were already operators of the ATT network and thus possessed a telecommunications authorisation, this requirement for allocating the frequencies through the application procedure was also met. The rights for operating the DVB-T network were granted for about twenty years until 31 December 2025.
2. THE SUPPORT MEASURE IN DETAIL
(31)
The subjectmatter of the notification is the financial assistance envisaged to be provided by LfM to CSBs for the digital terrestrial transmission of their programme channels in the areas of Cologne/Bonn and Düsseldorf/Ruhr. The German authorities estimated that by means of the introduction of DVB-T in these areas, around 14 million inhabitants are able to receive DVB-T out of the overall population of around 18 million in the Land (33).
(32)
The legal basis for this assistance is Section 40(1)(2) of the State Broadcasting Treaty (Rundfunkstaatsvertrag) and Section 88(3) of the Media Law of North Rhine-Westphalia, pursuant to which the Land media authorities and, in the present case, LfM are charged with promoting, among other things, the development of the technical infrastructure for broadcasting and projects for new broadcasting technologies out of their share of the licence fee (Rundfunkgebühr). LfM’s budget is essentially financed by the 2 % of the public service broadcasting licence fee collected in North Rhine-Westphalia in accordance with Section 40 read in conjunction with Section 55 of the State Broadcasting Treaty (Rundfunkstaatsvertrag), Sections 10 and 11 of the State Treaty on the Financing of Broadcasting (Rundfunkfinanzierungs-Staatsvertrag) and 116(1) of the Media Law of North Rhine-Westphalia (34). The licence fees are collected from private households by the German TV licensing office (Gebühreinziehungszentrale) and transferred to the beneficiary organisations such as the LfM.
(33)
The directive on the financial support for DVB-T (Förderrichtlinie DVB-T) (35) issued on 19 November 2004 sets out the general terms of the financial assistance granted by LfM to the commercial broadcasters. Article 2 of the directive states that the financial assistance concerns the transmission fees paid by the broadcasters to the network operator. In line with Article 3, beneficiaries may be those commercial broadcasters or media service providers which have received digital terrestrial transmission capacities. Article 4 foresees that the financing is provided in the form of grants. Article 5(1) limits the duration of the financing to five business years. Article 5(2) specifies that ‘The financing shall not exceed in average 30 % of the transmission fees payable for the operation of the network and is granted in a decreasing scale. It starts in the first business year with 40 % of the transmission fees payable for the operation of the network and decreases by five percentage points each business year so that the share of financing amounts to just 20 % in the fifth business year.’ In addition, Article 5(3) provides that ‘The savings arising from the switch-off of analogue transmissions will be deduced from the funding’.
(34)
The details concerning the concrete implementation of the directive on the financial support were set out in the notification. In the case of the broadcasters of the programme channels Viva, Eurosport, CNN and Terra Nova (as of 1 July 2007, Tele5) which did not participate in the analogue terrestrial transmission, the envisaged financial support is the same: it decreases gradually by 5 % from 40 % of the DVB-T transmission fees in the first year to 20 % of the transmission fees in the fifth year, in line with Article 5(2) of the directive on financial support.
(35)
In the case of the RTL group and ProSiebenSat.1, the CSBs previously present on the analogue terrestrial platform, the notification does not foresee the application of the decreasing share of assistance provided in Article 5(2) of the directive on financial support. In the case of these broadcasters which were allocated one entire multiplex each, the calculation of the subsidy is based on the difference between the overall amount of transmission fees in analogue and in digital mode in North Rhine-Westphalia as well as in other Länder of Northern Germany. According to the German authorities, thereby, the calculation method intends to take into account the savings arising from the switch-off of analogue transmissions as provided in Article 5(3) of the directive on the financial support.
(36)
In the notification, the German authorities also provided information about the envisaged amount of funding based on the estimated DVB-T transmission fees. At the same time, they highlighted that the calculation of the public support would be based on the actual transmission fees charged by the network operator to the CSBs at the time the financing is granted. In accordance with the Federal Telecommunications Law (Telekommunikationsgesetz), transmission fees are only fixed by the regulatory authority BNetzA if the network operator is found to have significant market power at the relevant market. In July 2006, BNetzA has defined the relevant market for the transmission of broadcasting signals in line with the European regulations. As a result, the network operator concerning the CSBs, T-Systems was only considered to have significant market power in the market for terrestrial radio transmission over FM (terrestrische Radioübertragung via UKW) (36). Therefore, it remains free to fix the amount of the transmission fees for commercial broadcasters on the DVB-T platform.
(37)
In the notification, the German authorities estimated that the DVB-T transmission fees of a multiplex would amount to EUR 2,7 million per year. The transmission fees of one programme channel were thus estimated at EUR 0,675 million per year and at EUR 3 375 million over the entire five year period of the scheme (37). These figures are lower than the analogue terrestrial transmission fees per programme channel.
(38)
Based on these data, the overall financial support granted to the individual programme channels Viva, Eurosport, CNN and Terra Nova (as of 1 July 2007, Tele5) was envisaged to amount to a total of EUR 4 050 000. The level of financing foreseen over the five years per programme channel is shown in Table 2.
Table 2
Estimated transmission fees and funding for Viva, Eurosport, CNN, TerraNova (Tele5)
(in EUR)
Years
Transmission fees per programme channel
Aid intensity
Amount of funding
1st year
675 000
40 %
270 000
2nd year
675 000
35 %
236 250
3rd year
675 000
30 %
202 500
4th year
675 000
25 %
168 750
5th year
675 000
20 %
135 000
Total amount per programme channel
3 375 000
1 012 500
(39)
In the case of the RTL group and ProSiebenSat.1, the calculation provided in the notification is shown in Table 3. The other Länder of Northern Germany taken into account are jointly referred to as ‘North’ in the notification (38).
Table 3
Calculation by the German authorities of ‘additional costs’ for ProSiebenSat.1 and RTL (39)
(in EUR)
RTL group
ProSiebenSat.1
NRW
‘North’
NRW
‘North’
Analogue programme channels/Transmission fees in EUR per year
RTL, VOX
RTL
Sat1
Sat1, Pro7
2,2 million
3,9 million
0,8 million
4,6 million
Digital programme channels/transmission fees in EUR per year
RTL, VOX, RTL2, S.RTL
RTL, VOX, RTL2, S.RTL
Sat1, Pro7, N24, K1
Sat1, Pro7, N24, K1
2,7 million
3,3 million
2,7 million
3,3 million
Differences in fees analogue/digital
- 0,5 million
+ 0,6 million
- 1,9 million
+ 1,3 million
Overall balance
+ 0,1 million
- 0,6 million
(40)
Based on this calculation, LfM does not intend to grant a subsidy to the RTL group. On the one hand, the RTL group is found to have a positive overall balance. On the other hand, the notification states that the RTL group has explicitly renounced the financing in the context of the negotiations concerning the return of the analogue licences. As concerns ProSiebenSat1, it is considered to incur ‘additional expenses’ of up to EUR 600 000 per year and the German authorities foresee a funding of up to EUR 550 000 per year over the duration of five years (up to EUR 2,75 million in total). This represents around 28 % of the overall DVB-T transmission fees paid by ProSiebenSat.1 in North Rhine-Westphalia.
(41)
In line with the above calculations for both groups of broadcasters, LfM’s total budget for subsidising the DVB-T transmission of the CSBs over five years is estimated at EUR 6,8 million.
(42)
LfM grants the financial assistance described above only to programme channels of CSBs. The PSBs finance the costs of DVB-T transmission out of the licence fee income accruing to them. According to the information submitted by the German authorities, WDR has at its disposal a project budget of about EUR 40,8 million for the period from 2001 until 2008 to cover the costs of the switchover. In the case of ZDF, the budget to achieve the countrywide switchover to DVB-T amounted for the period from 2001 to 2004 to EUR 36,8 million and to EUR 33,2 million between 2005 and 2008.
(43)
The financing directive entered into force retroactively as of 3 May 2004. However, by decision of the Media Commission (Medienkommission) of LfM, the German authorities have undertaken not to implement the financing until the Commission’s approval according to the State aid rules. Accordingly, no financing has been granted to the commercial broadcasters under the measure.
III. GROUNDS FOR INITIATING THE FORMAL INVESTIGATION PROCEDURE
(44)
In the opening decision, the Commission took the preliminary view that the subsidies envisaged by LfM appear to meet all the criteria of Article 87(1) of the EC Treaty and thus to constitute State aid. The Commission considered that the measure appears to be granted through State resources and is imputable to the State. It was found that the subsidy appears to constitute an advantage for commercial broadcasters as direct beneficiaries and may also benefit indirectly the network operator T-Systems.
(45)
The opening decision also raised doubts whether the procedures for the allocation of broadcasting and network licences could have minimised or eliminated the selective economic advantage deriving from the subsidy and could have prevented a distortion of competition. The Commission considered that the measure constitutes sectoral aid and appears to distort competition among the different transmission platforms (terrestrial, cable, satellite). It was noted that the measure may also distort competition among commercial broadcasters. In view of the international competition both among broadcasters and network operators, it was considered that the measure may affect trade between Member States.
(46)
The Commission also expressed doubts as to the compatibility of the measure with the EC Treaty. The opening decision found that the conditions for the application of Articles 87(3)(c), 87(3)(d) and 86(2) of the EC Treaty do not seem to be met. In particular, the Commission considered that there appears to be no indication that in the market situation prevailing in North Rhine-Westphalia, the measure could be deemed to be appropriate, necessary and proportionate to overcome any specific market failure which may hamper the switchover to digital television. The opening decision took the view that the financial support is not related to any particular cultural content. The Commission also called into question whether the measure might be considered as a compensation for a service of general economic interest.
(47)
Finally, the Commission initiated the formal investigation procedure also in order to give Germany and interested parties the opportunity to submit their comments on its provisional assessment of the measure described and to make available to the Commission any relevant information related to the measure.
IV. COMMENTS FROM INTERESTED PARTIES (40)
(48)
ANGA (Verband Privater Kabelnetzbetrieber e. V.), the association of private cable network operators stressed that the financial support for DVB-T transmission distorts competition between the different means of transmission to the detriment of cable operators. They submitted that the introduction of DVB-T has already led to a loss of customers for cable operators in the Länder concerned. The migration of terrestrial customers to cable which took place following the switch-off of analogue terrestrial television has been very limited and by far did not compensate for the continuous loss of cable customers. In their view, the measure aims at reducing the share of cable transmission, despite the fact that there is already strong competition with satellite and broadband (IPTV) operators, as well as between the different operators within the cable sector. Moreover, ANGA contests the openness of the procedures for the granting of broadcasting and network licences. With regard to the award of broadcasting licences, they claim that the procedure favoured those undertakings already present in the analogue network (ProSiebenSat.1 and the RTL Group) by allocating them entire multiplexes, including for programmes which they have not broadcast in analogue. As regards the award of network licences, they submit that it was clear from the beginning that the licensees would be the public service broadcasters of ARD and T-Systems. They claim that the subsidies provide an advantage for Deutsche Telekom which might distort competition not only in the broadcasting sector, but also in the electronic communications sector, if Deutsche Telekom links the DVB-T offer of its subsidiary T-Systems with its broadband service offers for customers. Finally, they argue that there would be other market-based alternatives for the financing of DVB-T by means of the encryption of the programmes and charging customer fees.
(49)
The comments submitted by ish (ish NRW GmbH), the main cable network operator in North Rhine-Westphalia, take a similar line to ANGA and generally support the position of the Commission in the opening decision. In its observations, ish claims having suffered significant customer loss (around 500 000 in 2005) due to the launch of DVB-T and in particular due to the ‘free’ subsidised reception of DVB-T compared to the subscription-based use of cable (41). This customer loss was not compensated by the limited customer increase following the switch-off of analogue terrestrial transmission. According to ish, the number of their customers could only be stabilised by high investments in the modernisation of cable infrastructure and the renewal of product structure. In their view, the subsidies aim at preserving a technology whose economic viability is doubtful, and which could be financed by other means such as encryption and customer fees. Similarly to ANGA, they consider that the measure would also reinforce the position of Deutsche Telekom in the broadband market. Finally, they take the view that the direct financial assistance increases the advantage of broadcasters transmitting over the terrestrial platform which they already enjoy in light of the must carry rules set out in Article 16 paragraph (2) of the Media Law of North Rhine-Westphalia (Landesmediengesetz Nordrhein-Westfalen), which obliges cable network operators to transmit on their network those programmes which have received a terrestrial broadcasting licence from LfM.
(50)
ESOA (European Satellite Operators Association) also generally supports the views expressed by the Commission in the opening decision. They consider that LfM’s financial assistance distorts competition between the different transmission platforms. As a matter of principle, they take the view that Member State policy interventions to promote the switchover should be transparent and justified, non-discriminatory and technologically neutral. They consider that the support of terrestrial transmission contributes to the foreclosure of other forms of transmission from the market. They highlight that satellite operators have introduced digital transmission by satellite without State support and point out that despite the significant investment required for the operation of satellites, this means of transmission has a number of advantages over terrestrial transmission (e.g. large and seamless reach, no high infrastructure costs).
V. COMMENTS FROM THE FEDERAL REPUBLIC OF GERMANY
(51)
Germany considers that the measure does not constitute State aid. Moreover, it takes the view that even if aid was found to be present, it would be compatible with the common market. Besides the specific comments concerning the qualification and the compatibility of the measure, the written observations put forward general arguments concerning the Commission’s policy and competences under the State aid rules.
(52)
As a matter of principle, the authorities take the view that the Commission has no right to interfere with the political decision of the Federal Government and the Länder (politische Entscheidung von Bund und Ländern) to maintain the terrestrial platform and to carry out its digitisation. Furthermore, in their opinion, the Commission is not entitled to assess in the place of the authorities of the Member States whether other measures might have been more appropriate. They also consider that the requirement of technology neutrality is not a suitable criterion to assess the compatibility of aid measures in the field of digital television. They call into question whether the Commission’s position and the length of the investigation of the measure at hand is in line with its declared policy to support digitisation. The comments express the view that there is a lack of consistency in the decision-making of the Commission in particular with respect to the assessment of the grounds for compatibility. They consider that the guidance provided in the final decision on the measure in Berlin-Brandenburg is not applicable to the present case and would not provide sufficient indications to authorities for compatible measures which could help to preserve the terrestrial platform.
(53)
Regarding the qualification of the present measure, the German authorities repeatedly stress that the envisaged payments constitute a compensation for a service of general economic interest and the Altmark criteria are met. At the same time, they maintain that the measure does not distort competition neither among broadcasters nor among the different transmission platforms. They emphasise that the procedures for the allocation of broadcasting licences by LfM as well as for the award of the network licences by RegTP were transparent and fully in line with the applicable national requirements. Despite the fact that the funding was not mentioned in the tender announcement concerning the granting of broadcasting licences, based on the general agreement of 20 October 2003, the German authorities maintain that all applicants knew about the envisaged funding measure.
(54)
In response to the comments received from the cable industry, the German authorities call into question the alleged customer loss of the cable operators and contest the data submitted by ish. They maintain that even if there was a decrease in cable customers, this would not necessarily be due to the introduction of DVB-T. They point out that the TV cable networks have been built in the 1980s with State support, and cable transmission also benefits from regulatory advantages up to now (Mietnebenkostenverordnung). Moreover, the authorities submit that their overall approach is technology neutral and if needed, they would also be ready to support the digitisation of cable.
(55)
Given the high market shares of cable and satellite, they take the position that there is no risk that DVB-T attracts broadcasters away from these platforms or influence consumers’ choice. Rather than affecting their market position, they consider that the measure would exercise positive competitive pressure on cable and satellite operators and thereby promote the digitisation of these platforms too. At the same time, the comments also call into question whether cable, satellite and terrestrial transmission belong to the same market in view of the technological differences and the costs of switching from one means of transmission to another. In the opinion of the German authorities, terrestrial television is not in direct competition but rather complementary to satellite and cable.
(56)
The German authorities consider that the measure does not provide an indirect advantage to the network operator T-Systems. They maintain that the potential advantage deriving from the funding to the network operator is neither demonstrable nor quantifiable (weder nachweisbar noch quantifizierbar) and is not sufficient to consider T-Systems as indirect beneficiary under the State aid rules. They claim that the guaranteed use of the network does not follow from the measure, but from the granting of broadcasting licences. Moreover, they consider that the measure does not necessarily enable T-Systems to charge higher fees and obtain more revenues. Furthermore, as to the effect of the measure on trade between Member States, the German authorities take the view that the sole fact that broadcasters and network operators are in international competition is not sufficient to establish the affectation of intra-community trade.
(57)
If the measure would be considered State aid, the German authorities maintain that it should be declared compatible with the common market under Article 86(2), 87(3)(c) or (b) of the EC Treaty. They reiterate the position that the introduction of digital terrestrial television constitutes a service of general economic interest. In their view, the commercial broadcasters have been entrusted with this service by means of the attribution of the DVB-T transmission capacities.
(58)
Moreover, regarding Article 87(3)(c) EC Treaty, the German authorities claim that the Commission has not given due consideration to the positive aspects of the introduction of DVB-T. In particular, the Commission did not take into account the contribution of DVB-T to media plurality, the suitability of the terrestrial platform to broadcast regional and local programmes, the innovation potential of DVB-T (above all for mobile reception) and the contribution of the measure to ensure DVB-T coverage in rural and remote areas. Moreover, the Commission did not consider the efficiencies achieved by LfM by promoting an early switchover and by coordinating this process with the Länder of Northern Germany. In their view, the fact that in other areas of North Rhine-Westphalia, DVB-T is being launched without the participation of commercial broadcasters indicates that private operators are not interested in participating in this platform without additional incentives. Overall, they consider that the measure is in line with the Commission Communication on the transition from analogue to digital broadcasting (hereafter the Switchover communication) (42). In their view, the funding addresses the difficulties identified by the Communication and compensates in part the significant short-term costs of the switchover also referred to in the Communication.
(59)
In addition, the German authorities consider that the Commission should also examine the compatibility of the measure in light of Article 87(3)(b) EC Treaty. They take the view that the measure constitutes an important project of common European interest. In their view, this also follows from the Switchover communication and from the wide range of economic, social and political benefits associated with digitisation.
VI. ASSESSMENT OF THE MEASURE
1. PRESENCE OF STATE AID PURSUANT TO ARTICLE 87(1) EC TREATY
(60)
The Commission has examined whether the measure can be qualified as State aid within the meaning of Article 87(1) of the EC Treaty, which provides that ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, insofar as it affects trade between Member States, be incompatible with the common market’. It follows that in order to be qualified as State aid, the following cumulative conditions have to be met: (1) the measure has to be granted out of State resources and be imputable to the State, (2) it has to confer an economic advantage to undertakings, (3) the advantage has to be selective and distort or threaten to distort competition, (4) the measure has to affect intra-Community trade.
1.1. MEASURE GRANTED OUT OF STATE RESOURCES AND IMPUTABLE TO THE STATE
(61)
In line with the settled case law of the European Court of Justice, for advantages to be capable of being categorised as aid within the meaning of Article 87(1) of the EC Treaty, they must first be granted directly or indirectly through State resources, and, second, be imputable to the State (43). The distinction between aid granted by the State and aid granted through State resources serves to bring within the definition of aid not only aid granted directly by the State, but also aid granted by public or private bodies designated or established by the State (44). Community law cannot permit the rules on State aid to be circumvented merely through the creation of autonomous institutions charged with allocating aid (45).
(62)
In the course of the procedure, the German authorities have argued that the funding is not granted out of State resources because it is financed out of licence fees collected from individual television viewers and thus the measure does not constitute a burden for the State budget. In their view, this follows from the judgments of the ECJ in the cases PreussenElektra (46), Sloman Neptun (47) and Pearle and others (48).
(63)
The German authorities have not contested that LfM is a public body established by the State which performs a public task and the funding is granted out of its budget. LfM is a public authority established by the Media Law of North Rhine-Westphalia. The law defines the organisational structure of LfM and entrusts it with a wide range of public tasks in the field of broadcasting and frequency management. LfM is subject to legal supervision by the Land of North Rhine-Westphalia (staatliche Rechtsaufsicht) (49) and its annual budget is under the control of the Court of Auditors of the Land (50). The public task of relevance for the present case, the promotion of the technical infrastructure for broadcasting and of projects of new broadcasting transmission technologies, is laid down in the national State Broadcasting Treaty (51). More specifically, with respect to the digital switchover, the Media Law of North Rhine-Westphalia provides that LfM shall support and guide the switchover from analogue to digital transmission (52). LfM is therefore to be considered a public body established by the State to serve the general interest.
(64)
Clearly, the financing foreseen under the present measure constitutes a burden for LfM’s budget. The circumstance that the budgetary resources of LfM are stemming from the licence fee collected from private households does not in any event prevent the budgetary resources of LfM to be categorised as State resources. The fact that the subsidies are granted out of the budget of a public body is in itself sufficient to conclude that State resources are involved. Moreover, the licence fee is a compulsory levy imposed on owners of radio/TV sets and their collection follows procedures similar to those of tax collection. The level of the licence fee is decided jointly by the Länder Parliaments and fixed in the respective legal acts. The share of licence fees accruing to LfM is defined in the State Broadcasting Treaty, the State Treaty on the Financing of Broadcasting and the Media Law of NRW as described in recital 32 above. Thus, the licence fees constitute statutory levies which are under public control and which constitute State resources (53).
(65)
On the basis of the above and in line with the established case law on parafiscal charges (54), the Commission takes the position that the present measure is granted out of State resources. This finding is in line with the case-law of the ECJ invoked by the German authorities. The cases referred to by the German authorities concerned different types of measures which did not involve an advantage granted out of the budget of public bodies.
(66)
Furthermore, the German authorities also argued that the present measure is not imputable to the State. By reference to the cases Stardust Marine (55) and Pearle and others (56), they maintain that in itself, the fact that LfM is a public authority under a certain State control does not mean that the measure is imputable to the State. They claim that in accordance with the independence of LfM under German law (Staatsferne der LfM) the State had no influence over the present measure.
(67)
The Commission considers that the independence of LfM under German law does not prevent the present measure from being considered imputable to the State from the point of view of the application of the State aid rules. The information provided by the German authorities indicates that the measure is granted by LfM in the framework of its public tasks as defined in the State Broadcasting Treaty and the Media Law of North Rhine-Westphalia. Although these provisions guarantee LfM a certain degree of autonomy for the purpose of safeguarding the independence of broadcasting, they provide limited discretion concerning the use of its budgetary resources.
(68)
Notwithstanding the autonomy of LfM, it is - as stated out above - a public body whose activities are clearly guided by public policy considerations. The envisaged granting of non-repayable grants to commercial broadcasters in the measure at hand with no direct economic benefit to LfM cannot be considered as being driven by commercial considerations. These circumstances establish in the Commission’s view the imputability of the funding granted by LfM to the State. The ECJ cases referred to by the German authorities concern different situations (levies collected for a purely commercial purpose in Pearle and others, and public undertakings carrying out commercial activities in Stardust Marine) and do not support the position of the German authorities.
(69)
Based on the above considerations, the Commission considers that the present measure is granted out of State resources and is imputable to the State.
1.2. ECONOMIC ADVANTAGE TO UNDERTAKINGS
(70)
In order to qualify as State aid under Article 87(1) of the EC Treaty, a measure has to confer an economic advantage to one or more undertakings. In the opening decision, the Commission took the preliminary view that the present measure appears to favour the commercial broadcasters which receive the funding as direct beneficiaries and may also benefit indirectly the operator of the DVB-T network concerning commercial broadcasters, T-Systems. In their submissions, the German authorities have argued that the measure does not confer an advantage neither directly to the commercial broadcasters, nor indirectly to the network operator.
(71)
The German authorities maintain that the financing does not constitute an economic advantage to the commercial broadcasters which receive funding under the measure. In the first place, they claim that the funding does not constitute an advantage because it merely compensates the broadcasters for the economic risks involved in their participation in DVB-T. Second, they argue that the measure only covers the ‘additional costs’ of digital terrestrial broadcasting as compared to the analogue mode.
(72)
At the same time, the information submitted by the German authorities indicates that the measure subsidises the transmission fees paid by the commercial broadcasters to the network operator. These costs are inherent in the commercial operation of the broadcasters. By covering part of the fees, the measure relieves the broadcasters from expenses which are part of their normal operating costs. Therefore, independently from whether it is intended to compensate for ‘economic risks’ or alleged ‘additional costs’, the Commission considers that the envisaged public funding constitutes an economic advantage to the recipients.
(73)
Moreover, the Commission notes that contrary to the argument put forward by the German authorities, the measure cannot be considered to cover genuine ‘additional costs’ of broadcasters in relation to DVB-T. On the one hand, this argument has not been substantiated concerning those broadcasters which have not been previously present on the analogue terrestrial platform and therefore did not incur costs in the analogue terrestrial transmission in NorthRhine-Westphalia. In their case, no cost comparison has been made and the German authorities have not provided any justification for the share of transmission fees covered by the measure.
(74)
On the other hand, in the case of those commercial broadcasters previously present on the analogue terrestrial platform, the calculation method used by the German authorities cannot be considered as reflecting genuine additional costs relating to the switchover to digital terrestrial transmission. On a comparable basis per programme channel, the transmission fees are actually lower for DVB-T than in the analogue mode. The alleged ‘additional costs’ arise merely from the increase in the number of channels transmitted by these broadcasters (see Table 4 for an overview of the level of transmission fees in North Rhine-Westphalia and the envisaged subsidies).
Table 4
Overview of transmission costs per programme channel and planned public support in North Rhine-Westphalia - all figures in EUR
Broadcasters/programme channels
Transmission costs per year
Overall difference digital/analogue transmission costs per year (57)
Average planned public support per year (58)
Average aid intensity
analogue (59)
digital (60)
RTL
1 351 640
675 000
- 676 640
VOX
783 663
675 000
- 108 663
RTL2
na
675 000
675 000
SUPER RTL
na
675 000
675 000
Total RTL
2 135 303
2 700 000
564 697
0
0
SAT 1
722 789
675 000
-47 789
Pro 7
na
675 000
675 000
N 24
na
675 000
675 000
Kabel 1
na
675 000
675 000
Total P7Sat1
722 789
2 700 000
1 977 211
550 000
28 %
TerraNova
na
675 000
na
202 500
30 %
Eurosport
na
675 000
na
202 500
30 %
CNN
na
675 000
na
202 500
30 %
VIVA
na
675 000
na
202 500
30 %
(75)
Third, the German authorities also put forward that the subsidy is a compensation for those broadcasters which renounced their analogue licences before the expiry date in order to allow for the launch of DVB-T. The Commission notes, in the first place that this argument cannot be applied to those broadcasters which have previously not been present on the analogue platform and were not in the possession of analogue licences.
(76)
As regards the broadcasters which were present on the analogue platform, the submissions of the German authorities also state that the possession and the outstanding duration of the licences do not have a direct influence on the amount of the subsidy, given that in their view, the economic disadvantage due to the return of the analogue transmission capacities cannot be exactly determined. According to the authorities, the return of the analogue licences was instead taken into account in the context of the attribution of digital multiplexes to the broadcasters concerned (61). As a consequence, both the RTL group and ProSiebenSat.1 received a licence for four programme channels instead of two ATT programmes in the case of the RTL group and one ATT programme for ProSiebenSat.1. The fact that the subsidy is not related to the return of the licences is also indicated by the circumstance that only ProSiebenSat.1 is entitled to receive funding according to the calculation method submitted by the German authorities. Therefore, the Commission considers that the measure cannot be regarded as a compensation for the economic value of the outstanding duration of the analogue licences which were returned by RTL Television, VOX/DTCP and Sat1.
(77)
Finally, by reference to the observations made by ProSiebenSat.1 in the Berlin-Brandenburg case (62), the German authorities also submit in their observations after the opening of the formal investigation procedure that in any case, following the logic of the opening decision by the Commission, the commercial broadcasters would transfer all the economic advantage conferred by the public funding to the network operator T-Systems in the form of transmission fees.
(78)
The Commission notes that this argument contradicts those made by Germany concerning the presence of an economic advantage to the network operator, and has not been substantiated by the German authorities. As explained under recitals 80 to 88 below, the Commission considers that the network operator T-Systems would be able to draw an indirect benefit from the measure. However, there is no indication that this would imply a complete transfer of the economic advantage of the broadcasters arising from the direct financing of their normal operational expenses. Therefore, in the Commission’s view, this argument cannot be accepted either.
(79)
In addition, the Commission notes that the procedure for the allocation of the broadcasting licences described in recitals 24 to 28 cannot be considered as having eliminated or even reduced the economic advantage granted to commercial broadcasters. The tender announcement did not contain any reference to the funding. In the general agreement of 20 October 2003 between LfM, the PSBs and the commercial broadcasters present in the analogue platform, only a vague reference was made to possible support measures, without giving any details as to the envisaged financial assistance. Therefore, there was no possibility for the broadcasters to take the amount of financing into account when submitting their licence applications.
(80)
The German authorities maintain that the funding provided to the commercial broadcasters does not constitute an indirect advantage for the network operator T-Systems. In their opinion, the category of indirect beneficiary can only be used in exceptional circumstances. By reference to the ECJ cases Germany v Commission (63) and the Netherlands v Commission (64), they take the view that in order to qualify as indirect beneficiary under the State aid rules, the undertaking concerned has to benefit from an advantage which automatically follows from the measure. Moreover, they claim that the concept of indirect beneficiary can only be used if - unlike in the present case - the advantage can be demonstrated and quantified.
(81)
In the circumstances of the present case, the German authorities argue that the measure does not necessarily enable the network operator T-Systems to charge higher transmission fees to the broadcasters than the market price. They maintain that the level of the transmission fees depends on a number of other factors and that in any case, the regulator (BNetzA, previously RegTP) controls any eventual misuse in relation to the transmission fees. In addition, linked to their previous argument concerning the advantage to broadcasters, the authorities argue that as broadcasters only receive compensation for ‘additional costs’ due to the switchover, they have no interest in paying higher transmission fees than the market price.
(82)
The German authorities also contest that the measure would lead to guaranteed revenue for T-Systems. In their view, the ‘guaranteed revenues’ follow from the use of the network infrastructure which results from the attribution of broadcasting licences and not from the funding. Moreover, they also maintain that even if there was more interest for the use of the network due to the measure, the resulting additional revenues would be offset by the additional costs of the network services incurred by T-Systems.
(83)
Contrary to the arguments put forward by the German authorities, the Commission considers that T-Systems would be able to draw an indirect advantage from the measure, taking into account that the measure subsidises directly the transmission fees paid by the commercial broadcasters to T-Systems, it is conditional upon the use of the DVB-T platform and specifically targeted to promote the platform operated by T-Systems.
(84)
In the Commission’s view, the restrictive interpretation of the category of indirect beneficiary proposed by the German authorities cannot be accepted. In both judgements referred to by the German authorities, the Court has upheld the qualification of the undertakings concerned as indirect beneficiaries. In Germany v Commission, the Court considered that the fact that the indirect advantage resulted from independent decisions by the direct beneficiaries did not eliminate the connection between the measure and the indirect advantage, which followed from the alteration of the market conditions by the measure (65). Given that in the present case, the aid has not been granted, it is indeed not possible to quantify the indirect advantage possibly accruing to T-Systems. However, in any case, the Commission is not bound to quantify the exact amount of the advantage in order to establish the presence of an economic advantage to an undertaking under the State aid rules.
(85)
In the present case, the Commission considers that the funding of the transmission fees payable by the commercial broadcasters changes the conditions under which they operate, and enables them to bear eventually higher transmission fees. As outlined in recitals 73 and 74, the funding cannot be considered as covering real additional costs of commercial broadcasters in relation to the introduction of DVB-T. Although the level of the transmission fee indeed depends on a number of factors, the ability of commercial broadcasters to bear higher costs certainly constitutes one of the key commercial considerations from the point of view of the network operator for defining the level of the transmission fees. In line with the German Telecommunications Law (Telekommunikationsgesetz), BNetzA only exercises control over transmission fees charged by operators with significant market power. As indicated in recital 36, T-Systems has so far not been considered by BNetzA to have a significant market power with regard to terrestrial television transmission. Therefore, it remains free to fix the amount of transmission fees for commercial broadcasters on the DVB-T platform.
(86)
With respect to the argument that the ‘guaranteed revenues’ for T-Systems arise from the attribution of the licences and not from the measure, the Commission acknowledges that the interest of the commercial broadcasters to be present on the platform and their willingness to bear the corresponding costs is already demonstrated by the high number of applications for the licences. However, the Commission considers that funding of part of their operational costs for a period of five years increases their willingness to pay even higher costs to be continuously present on the platform. Thereby, the measure may provide for additional revenues for T-Systems deriving form the transmission fees from commercial broadcasters. These revenues cannot be considered as fully offset by the network service provided in return without leaving any profit margin to the network operator which operates under market conditions.
(87)
Based on the above, the Commission considers that T-Systems would be able to draw an indirect benefit from the support measure. The State funding of part of the transmission fees would enable T-Systems to obtain higher revenues as compared to a situation where no aid is present.
(88)
In addition, the Commission notes that the procedure for the allocation of the network licences organised by RegTP cannot be considered as eliminating or even reducing the indirect advantage possibly arising from the measure for the network operator T-Systems. The relevant procedure did not make any reference to the funding measure envisaged by LfM. Therefore, T-Systems could not take into account the availability of such funding to commercial broadcasters when submitting its application for the network licence. In addition, T-Systems, the incumbent operator and owner of the analogue terrestrial network throughout Germany appears to have had a competitive advantage over potential new entrants for the allocation of the network licence. In a procedure launched in 2002, it has been already allocated a licence for operating a nation-wide DVB-T multiplex. Moreover, there were only about two months between the deadline for the frequency allocation procedure (17 March 2004) and the launch of the DVB-T operations (24 May 2004), which left little time for potential new entrants to roll-out the network to start DVB-T transmissions on time.
(89)
In their submissions, the German authorities have also invoked the Altmark judgment (66) to argue that the envisaged payments do not constitute State aid but merely represent a compensation for a service of general economic interest. In this judgment, the Court stated that public service compensation does not constitute an advantage in the meaning of Article 87(1) of the EC Treaty if all of the following four conditions are met: (1) the recipient undertaking must actually have public service obligations to discharge and these obligations must be clearly defined, (2) the parameters of the compensation must be established in advance in an objective and transparent manner, (3) the compensation does not exceed the costs incurred in discharging the public service obligations, (4) in order to ensure the least costs to the community, the company which is to discharge public service obligations is chosen either pursuant to a public procurement, or if not, the level of compensation is determined based on the costs of a typical, well run undertaking.
(90)
In accordance with the first Altmark criterion, it has to be assessed whether the beneficiary undertakings have clearly defined public service obligations to discharge.
(91)
The German authorities maintain that the transmission of broadcasting programmes by the private broadcasters over the digital terrestrial platform constitutes a service of general economic interest, which is, according to the German authorities, in line with the Switchover communication. In their view, the general interest of DVB-T follows from the contribution of digital terrestrial television to the transmission of regional and local programmes, as well as to the promotion of innovation, media plurality and infrastructure competition between the different transmission platforms. In their view, this public service obligation is stemming from the Media Law of North Rhine-Westphalia which explicitly assigns LfM the general task of supporting and guiding the switchover from analogue to digital terrestrial television (67).
(92)
The German authorities claim that by means of the attribution of the digital terrestrial broadcasting licences, the commercial broadcasters are entrusted with a service of general economic interest and are under the obligation to carry out this service. They argue that in view of the ‘dual broadcasting system’ including both public service broadcasters and private broadcasters in Germany, commercial operators also have a public interest role and are bound by legal obligations with respect to their programmes. Without public financial support, the authorities claim further, some commercial broadcasters (in particular ProSiebenSat.1) would not have participated in DVB-T in North Rhine-Westphalia. They argue that a lack of public funding would obstruct the provision of this service and would have put the existence of the terrestrial platform at risk (68).
(93)
The Commission does not share the arguments submitted by the German authorities. The Commission does not call into question that the digitisation of broadcasting transmission is in the public interest. The presence of public interest objectives in relation to the switchover is however not sufficient to demonstrate the existence of public service obligations imposed on commercial broadcasters in relation to the transmission of their programmes over the digital terrestrial platform in North Rhine-Westphalia. Furthermore, the mere fact that commercial broadcasters are part of the dual broadcasting system in Germany or that their programmes are subject to legal obligations resulting from the broadcasting legislation in Germany does not lead to the conclusion that they have to discharge public service obligations as regards the transmission of their programmes over the digital terrestrial platform (69).
(94)
In the Commission’s view, the general provisions concerning the public tasks of LfM in relation to the switchover do not contain clearly defined public service obligations for commercial broadcasters. The Commission further notes that none of the official documents relating to the introduction of DVB-T in North Rhine-Westphalia (agreements concerning the switchover, official documents relating to the DVB-T licences) contain any such public service obligations. Also, the terms of the broadcasting licences do not contain any specific public service obligation (70). Moreover, contrary to what has been argued by the German authorities, the broadcasters do not have the obligation to transmit their programmes over DVB-T: as the example of TerraNova demonstrates, licences can be returned upon the decision of the broadcaster.
(95)
Hence, as already stated in the opening decision (71), the German authorities seem to have made the argument that a service of general economic interest was present on an ad hoc basis, after the award of the licences and the launch of the transmission over the digital terrestrial network. In the Commission’s view, rather than being public service obligations, the transmission of their programmes over the digital terrestrial network constitutes part of the normal commercial activities of the commercial broadcasters.
(96)
Based on the above, the Commission considers that the present measure envisages support to normal business activities of commercial undertakings rather than a compensation for costs incurred in discharge of public service obligations. It follows that the first Altmark criterion is not fulfilled.
(97)
As regards the second Altmark criterion, the Commission finds that the parameters of the alleged ‘compensation’ have not been established in advance in an objective and transparent manner. The directive on the financial support was issued on 19 November 2004 (with a retroactive effect as of 3 May 2004), whereas the licences were allocated by order of 14 May 2004. Therefore, it cannot be considered as an advance definition of the parameters of the funding. Moreover, the Directive does not make clear how the funding would be calculated in the case of those broadcasters previously present on the analogue platform, which is only known to the Commission from the notification. Consequently, the parameters have not been established in a transparent manner. Furthermore, in the Commission’s view, the calculation cannot be regarded as objective, given that the determination of the financial support for individual commercial broadcasters does not take into account the increase in the number of programme channels of those broadcasters previously present on the analogue platform and the potential additional advertising revenues from the presence on the terrestrial platform (see also recital 123). Therefore, the Commission considers that the second Altmark criterion is not met.
(98)
As regards the third Altmark criterion which foresees that the compensation shall not exceed the costs incurred in discharging the public service obligations, the German authorities take the view that this criterion is only applicable in those cases where the costs, revenues and a reasonable profit can be calculated. They claim that in situations like the present case, when a start-up financing is granted to reduce the economic risks of the market participants, other criteria should apply to decide whether the measure constitutes State aid. In this context, they claim that the present measure is limited to the minimum necessary and forms part of a technology neutral policy.
(99)
In the view of the Commission, the requirements of the Altmark judgment cannot be replaced by other considerations as outlined by the German authorities. As pointed out in recital 97 above, the envisaged public funding is not determined on objectively established criteria, taking into account the relevant revenues of the broadcasters and the funding does not correspond to genuine additional costs incurred by the commercial broadcasters (see recital 73 and 74 above).
(100)
Finally, as regards the fourth Altmark criterion, the Commission notes that in view of the lack of clearly defined public service obligations, it cannot be established whether the level of compensation for the public service obligation corresponds to the costs of a typical, well run undertaking. The Commission notes that the German authorities have also not put forward any arguments in this respect. In fact, the subsidy covers part of the transmission fees fixed by the operator of the network for commercial broadcasters, T-Systems. Given that the network licences have been attributed without tender in the application procedure, the level of these transmission fees cannot be considered as having been subject to a competitive tender procedure.
(101)
Based on the above, the Commission considers that none of the four criteria of the Altmark judgment is met in the present case.
1.3. SELECTIVITY AND DISTORTION OF COMPETITION
(102)
In accordance with Article 87(1) of the EC Treaty, in order to qualify as State aid, the measure must be selective and distort or threaten to distort competition. In the opening decision, the Commission took the preliminary view that the measure constitutes sectoral aid as it favours the DVB-T platform over other transmission platforms. Moreover, the Commission was of the opinion that the different level of public funding may result in a distortion of competition among broadcasters participating in DVB-T in North Rhine-Westphalia. It took the view that the procedures for the allocation of the respective broadcasting and network licences did not exclude the selectivity and the distortion of competition arising from the measure.
(103)
The German authorities maintain that the measure does not distort competition because the respective broadcasting and network licences were attributed following open and transparent procedures in accordance with the relevant legal requirements at national level. According to this argument, the tendering has ensured that any broadcaster or network operator could, in principle, have benefited from the funding so that the measure cannot be regarded as selective.
(104)
Regarding the attribution of the broadcasting licences, the German authorities argue that the priority treatment of broadcasters previously present on the analogue platform was a compensation for the return of their analogue licences and as such necessary to realise the switchover.
(105)
Indeed, LfM organised an open procedure for the attribution of the broadcasting licences for all DVB-T channels reserved for commercial broadcasters, as described in recitals 24 to 28. The selection criteria referred to the plurality of programmes and the plurality of broadcasters, and foresaw a priority treatment of those broadcasters previously present on the analogue platform. In line with this priority treatment, ProSiebenSat.1 and RTL group have received entire multiplexes for a set of programmes. Out of the 21 applications received in response to the announcement, six applications have been retained.
(106)
The Commission does not intend to call into question the compliance of the attribution procedure with the relevant national requirements. However, it considers that it does not eliminate the selectivity of the present measure from the point of view of the State aid assessment. First, only a limited number of broadcasters could be selected as a result of the procedure. In the selection procedure, priority was given to those broadcasters already present on the analogue platform (72). As a matter of fact, only those broadcasters having received a DVB-T licence can benefit from funding under the measure. Second, the attribution of the licences concerned specifically the transmission of broadcasting programmes on the DVB-T platform.
(107)
Concerning the attribution of the network licences, the relevant procedure was organised by RegTP, as described in recitals 29 and 30. Since only one application was received for each of the five service areas defined in North Rhine-Westphalia (T-Systems for the areas concerning private broadcasters and WDR for the areas concerning the members of the ARD Group), the licences were attributed in the application procedure, without launching the tender procedure.
(108)
Similarly to the allocation of the broadcasting licences, the Commission considers that from a State aid point of view, the procedure for the attribution of the network licences cannot be considered as excluding the selectivity of the measure. The procedure concerned specifically the operation of the DVB-T network in North Rhine-Westphalia. Moreover, T-Systems, as the incumbent operator, was in a particularly advantageous position to apply for the network licences.
(109)
In the opening decision, the Commission took the preliminary view that the measure constitutes a sectoral aid to broadcasting via DVB-T insofar as the subsidy is only granted to broadcasters using the digital terrestrial platform and does not, for example, support the transmission over other transmission platforms.
(110)
The German authorities maintain that the measure does not distort competition between cable, satellite and terrestrial transmission. They claim that these means of transmission are only to a limited extent in competition. In their view, terrestrial transmission is rather complementary to cable and satellite, as it also covers areas not served by cable, enables the transmission of regional and local programmes and can serve as a basis to develop mobile reception.
(111)
They submit that given the high market share of cable and satellite and the low proportion of terrestrial television, the promotion of DVB-T could not affect the market position of the other platforms. According to the authorities, on the one hand, in view of its low share, terrestrial television is not able to attract broadcasters from the other platforms. On the other hand, the measure would also not affect the choice of consumers, in particular as there are technical, legal and financial obstacles to switch from one means of transmission to another. At the same time, they also argue that instead of replacing cable or satellite, the promotion of DVB-T will exercise a ‘positive competitive pressure’ on the other means of transmission, foster infrastructure competition and thereby facilitate the digitisation of other platforms too.
(112)
The German authorities also contest the data provided by the cable operators concerning the effect of the introduction of DVB-T on the number of cable customers. The data at the disposal of LfM differ from those provided by ish and shows a lower decrease (81 000 households as opposed to 147 000 between 2003 and 2006). The German authorities maintain that even if there was a decrease in the number of cable customers, this would not necessarily be due to the introduction of DVB-T. In this respect, they also emphasise that the measure does not aim to harm cable. They highlight that the cable infrastructure was established with State support in the 1980s and still benefits from regulatory advantages including cable fees in the rent (Mietnebenkostenverordnung). They maintain that the overall funding concept is technology neutral: if necessary, they would also be ready to support the digitisation of cable. As an example of their alleged positive approach towards cable, they mention that on 17 February 2007, LfM agreed to the digitisation of the analogue cable channel of ish (73).
(113)
The Commission considers that the considerations in recitals 110 to 112 do not call into question the qualification of the measure as sectoral aid which selectively supports broadcasters on the DVB-T platform and may also entail an indirect benefit selectively for the operator of the network T-Systems. The envisaged measure is specifically related to one sector of activity, the transmission of broadcasting signals and it selectively supports digital terrestrial transmission in particular. It is selective both as regards the demand side, the commercial broadcasters operating on the DVB-T platforms, as well as the supply side, i.e. the operator of the digital terrestrial network, T-Systems.
(114)
The Commission is of the opinion that the different means of transmission of broadcasting signals, i.e. cable, satellite, terrestrial transmission and increasingly also IPTV are in direct competition. Even if the different transmission platforms have their strengths and weaknesses, they serve essentially the same function, i.e. the transmission of broadcasting programmes, and there is substitutability between them both at wholesale level from the point of view of the commercial broadcasters and from the point of view of the viewers at retail level. In Germany, cable, satellite and terrestrial platforms all offer a large number of free-to-air channels which points to a certain similarity of offer. More specifically, the current offer of a total of 24 digital terrestrial television channels appears comparable to the offer in analogue cable, which is the most common transmission platform in North Rhine-Westphalia, although digital cable is developing quickly.
(115)
The relatively low share of terrestrial television as compared to cable and satellite in Germany in general and in particular in North Rhine-Westphalia does not eliminate the competitive relationship between the different transmission platforms. The information submitted by the cable operators indicates that the number of cable customers was affected by the launch of DVB-T in North Rhine-Westphalia. In addition, the cable operators note in their submission that there was a slight increase of cable customers following the switch-off of the analogue terrestrial network which also appears to show substitutability from the point of view of the end-users. When the German authorities claim that the measure will exercise a ‘positive competitive pressure’ on the other platforms and foster infrastructure competition, they themselves implicitly recognise the competitive relation between the different means of transmission. The fact that the cable infrastructure has also benefited from State support in the past, as well as the presence of certain regulatory advantages does not reduce the selectivity and the distortion of competition arising from the present measure.
(116)
The distortion of competition inherent in the present measure may also affect other markets beyond television transmission. From the point of view of the broadcasters, the present sectoral aid measure helps to reach a wider audience and helps to attract advertisers. By attracting advertisers from other media, the promotion of DVB-T has also the potential to affect a number of companies in other media sectors.
(117)
Moreover, with respect to the network operator, the promotion of the DVB-T network may also affect new markets. DVB-T has the potential for supplying pay TV services as shown by the developments in other Member States such as Italy, France, Sweden and the United Kingdom.
(118)
In the opening decision, the Commission considered that the measure may distort competition among the different commercial broadcasters present on the DVB-T platform in that the share of the transmission costs covered is not the same for all CSBs.
(119)
The German authorities maintain that the measure does not distort competition between the commercial broadcasters because the principles for defining the amount of the subsidy are the same. They claim that the differences in the funding are due to the different position of the broadcasters and the different burdens they have to bear as a consequence of the switchover to digital television.
(120)
As described in recitals 34 to 40, the calculation of the subsidy is different for those broadcasters previously present on the analogue platform (the RTL group and ProSiebenSat.1 which have respectively four digital programme channels) and those broadcasters which only started transmitting over the terrestrial platform using DVB-T, which have one programme channel each.
(121)
Concerning the broadcasters previously not present on the analogue platform, the financial assistance amounts to on average 30 % of the transmission fees per channel for five years, decreasing by 5 % each year from 40 % in the first year to 20 % in the fifth year. This applies in the same manner to all the four commercial broadcasters concerned.
(122)
In the case of the RTL group and of ProSiebenSat.1, the subsidy is calculated based on the difference of their overall costs in analogue and digital terrestrial transmission in North Rhine-Westphalia as well as in the Länder of Northern Germany (see Table 3 and recitals 35, 39 and 40). According to the German authorities, the RTL group is not considered eligible because the decrease of its overall transmission costs in digital mode in the other Länder of Northern Germany covers the overall cost increase in North Rhine-Westphalia. Moreover, the German authorities maintain that RTL also did not ask for funding.
(123)
The Commission considers that the method for the calculation of the subsidy cannot be considered objectively justified given that it is not based on a thorough account of the broadcasters’ costs and the revenues in relation to the transmission over the digital terrestrial platform. Moreover, as already outlined in recital 74 above, for those broadcasters previously present in the analogue platform, the calculation method used cannot be considered as an objective way of calculating potential additional costs of digital transmission, given that it does not take into account the increase in the number of programme channels which are driving these costs. Furthermore, the calculation depicted in Table 3 is also arbitrary as the RTL group and ProSiebenSat.1 had a different number of analogue programme channels in North-Rhine Westphalia and in Northern Germany, with different costs due to different geographic coverage. In fact, as also shown by the figures provided by the German authorities, in the present case, transmission costs per channel are lower in digital mode than on the analogue platform (see Table 4). As the German authorities have indicated, ProSiebenSat.1 and RTL have had the possibility to receive entire multiplexes in the procedure for the allocation of the broadcasting licences in view of the priority treatment granted to broadcasters present in the analogue platform, and as a compensation for the return of their respective analogue licences before the expiry date. In addition, the funding provides them with the possibility to broadcast more channels in North Rhine-Westphalia for more or less the same amount of overall costs as in analogue mode. The German authorities have not provided any explanation why the share of costs covered is different in the case of ProSiebenSat.1 and those broadcasters previously not present on the analogue platform.
(124)
Based on the above, the Commission is of the opinion that the advantage arising from the allocation of the broadcasting licences for those broadcasters previously present on the analogue platform and the calculation of the subsidy which is not objectively justified introduces a distortion between those broadcasters previously present on the analogue platform and those which started transmission over the terrestrial platform only with the launch of the DVB-T platform.
1.4. EFFECT ON TRADE
(125)
According to Article 87(1) of the EC Treaty, an intervention must be liable to affect trade between Member States in order to qualify as State aid. In the opening decision, the Commission considered that the measure may affect intra-Community trade as the commercial broadcasters are internationally active and the network operator is competition with international cable operators and media corporations, as well as satellite operators.
(126)
The German authorities have maintained that the measure is not liable to affect trade between Member States. They claim that the amount of the aid is so low that the effect on trade would be hardly appreciable. Moreover, they argue that in itself, the fact that the undertakings concerned are internationally active does not allow concluding that there is necessarily an effect on trade between Member States. In their view, it follows that there is no effect on trade as far as the situation of commercial broadcasters is concerned.
(127)
In line with the case law of the European Courts, ‘when (…) State financial aid or aid from State resources strengthens the position of an undertaking as compared with undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid’ (74). Moreover, it was also held that even aid of a relatively small amount is liable to affect trade between Member States (75), in particular where there is a strong competition in the sector in which the recipient operates (76).
(128)
Therefore, the Commission considers that the envisaged measure is liable to affect trade between Member States. As explained above, the measure favours directly the commercial broadcasters and may also entail an indirect advantage for the network operator T-Systems. Both the commercial broadcasters and the network operator are in international competition with other undertakings. All commercial broadcasters concerned by the present measure compete with other broadcasters and telecommunication companies in the markets for television advertising and film rights (77). Network operators like Deutsche Telekom’s subsidiary T-Systems compete with cable operators and media corporations like UPC (Liberty Media), satellite operators like SES Astra, NSAB and Eutelsat, as well as other undertakings offering infrastructure services to broadcasters. At the same time, there is competition between terrestrial, cable and satellite operators for end-users in different Member States.
(129)
The Commission is of the opinion that the overall amount of the aid in the present case, estimated at EUR 6,8 million cannot be considered as ‘relatively small’. In any case, as indicated by the Community Courts, a small amount of aid is also liable to affect trade, in particular if there is strong competition.
1.5. CONCLUSION CONCERNING THE STATE AID CHARACTER OF THE MEASURE
(130)
For the reasons set out above, the Commission considers that the subsidies envisaged by LfM fulfil all the conditions for constituting State aid within the meaning of Article 87(1) of the EC Treaty. The direct beneficiaries are the commercial broadcasters which receive the financial assistance. At the same time, T-Systems, the operator of the multiplexes used by the commercial broadcasters, would also be able to draw an indirect benefit from the measure.
2. COMPATIBILITY OF THE AID MEASURE
2.1. GENERAL CONSIDERATIONS
(131)
The Commission actively supports the transition from analogue to digital broadcasting. The advantages of the digital switchover were underlined in the Action Plan eEurope 2005 and in the two Communications relating to the digital switchover (78). The digital switchover has great advantages in terms of more efficient spectrum usage and increased transmission possibilities. These will lead to new and better quality services and to wider consumer choice. As the Commission has also pointed out in its Communication i2010 - A European Information Society for growth and employment, the planned switch-off of analogue terrestrial television by 2012 will improve access to spectrum in Europe.
(132)
The Commission also recognises that the digital switchover may be delayed if left entirely to market forces. Hence, it has no objection to the principle of public intervention in this field. Public authorities have different means of facilitating and encouraging the digital switchover, for example by coordination mechanisms, information campaigns, regulatory means and financial assistance. If public intervention takes the form of State aid, it must however comply with the relevant provisions of the EC Treaty.
(133)
In line with the general approach of the Commission towards less and better targeted State aid, as a matter of principle, Member States may use aid to overcome a specific market failure or to ensure social or regional cohesion. However, it must be shown in each specific case that the aid is necessary to address the issue, it is an appropriate instrument, limited to the minimum necessary and does not unduly distort competition. Similarly, the Switchover communication provides that in the specific area of digitisation, public intervention would be justified under two premises: first, the presence of general interests which are at stake; secondly, the existence of a market failure, that is, market forces alone fail to deliver in terms of collective welfare. It also specifies that in any case, public intervention should be supported by a sound market analysis.
(134)
The Switchover communication also indicates that the transition to digital broadcasting represents a big industrial challenge that must be led by the market. In principle, each network should compete on its own strengths. In order to safeguard this principle, any public intervention shall aim at being technology neutral. Exceptions from this principle can only be envisaged if, as explained above, the intervention targets a specific market failure or equity issue and is at the same time necessary, appropriate and proportionate to overcome these difficulties.
(135)
It is generally recognised that the switchover may be hindered by certain market failures. Moreover, there is a risk that not all parts of the population can benefit from the advantages of digital television in view of their disadvantaged social situation (social cohesion problem). As the Commission also pointed out in the Berlin-Brandenburg case, a market failure might exist, for example, where market players are unwilling to agree on a common timetable to switch to digital TV waiting for others to make the first step (coordination problem) or where market players do not take into account the positive effects of switchover on society as a whole because they do not have the right incentives to do so (positive externalities).
(136)
With respect to social cohesion, Member States will want to make sure that all citizens have access to digital television once analogue TV is switched off. Since the digital switchover entails costs for consumers and requires a change in habits, Member States may want to assist in particular the disadvantaged groups of society such as elderly people, low income households or people living in peripheral regions.
(137)
Over the past three years, the Commission has assessed a number of State measures in different Member States aimed at promoting the switchover (79). In several State aid decisions, based on the Communications related to the digital switchover, the Commission has clarified the application of the State aid rules in this sector and provided guidance to both public and economic actors. Member States have several possibilities to grant public funding for the switchover, provided that the measures do not entail an unnecessary distortion between technologies or companies and are limited to the minimum necessary (80):
(a)
pilot projects and research activities to test, for example, digital transmission technologies and interactive applications;
(b)
subsidies to individuals for the purchase of set-top boxes for any platform to prevent the exclusion of low income households from access to TV reception and to reach a critical mass of users, in particular in areas where due to the lack of frequency spectrum, the terrestrial transmission will have to be switched without simulcast period;
(c)
grants to companies to develop innovative digital services such as electronic programme guides and mobile applications;
(d)
subsidies to broadcasters to compensate for additional transmission costs when broadcasting analogue and digital TV in parallel (simulcast phase);
(e)
subsidies to consumers for the purchase of digital decoders. Such subsidies should be technologically neutral. In granting subsidies, the authorities may encourage the use of open standards for interactivity. Open standards enable consumers to benefit from interactive services offered by different operators;
(f)
funding for the roll-out of a transmission network in areas where otherwise there would be insufficient TV coverage;
(g)
financial means to public service broadcasters to enable them to be broadcast via all transmission platforms in order to reach the entire population. In this context, Member States have to set out clearly any obligations on the public service broadcasters as to which transmission platforms should be used;
(h)
fair compensation to broadcasters which are required to give up the use of analogue spectrum before the expiration of their licences, if necessary and appropriate. The compensation should take into account the actual costs of the switchover to broadcasters including for instance adaptation costs to broadcast in another channel/multiplex where applicable.
2.2. LEGAL BASES FOR ASSESSING THE COMPATIBILITY OF THE ENVISAGED MEASURE
(138)
The German authorities have invoked Articles 87(3)(c), 87(3)(b), 87(3)(d) and 86(2) of the EC Treaty to justify the measure if it was found to constitute State aid in accordance with Article 87(1) of the EC Treaty. In the following, the Commission assesses the compatibility of the measure in view of these provisions, taking into account the general considerations outlined above (81).
2.3. ARTICLE 87(3)(c) OF THE EC TREATY
(139)
In the opening decision, the Commission stated that it was not convinced that the measure could be deemed compatible under Article 87(3)(c) EC Treaty. This remains the opinion of the Commission after having assessed the comments of interested parties and the observations provided by the German authorities.
(140)
Article 87(3)(c) of the EC Treaty concerns ‘aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest’.
(141)
In order to be compatible under Article 87(3)(c), an aid must pursue an objective of common interest in a necessary and proportionate way. In particular, the measure shall be assessed with respect to the following questions:
1.
Is the aid measure aimed at a well defined objective of common interest?
2.
Is the aid well designed to deliver the objective of common interest (i.e. does the proposed aid address a market failure or other valid objective)? In particular:
(a)
is the aid measure an appropriate instrument?
(b)
is there an incentive effect, i.e. does the aid change the behaviour of firms?
(c)
is the aid measure proportional, i.e. could the same change in behaviour be obtained with less aid?
3.
Are the distortions of competition and effect on trade limited, so that the overall balance is positive?
(142)
The German authorities maintain that the planned measure complies with Article 87(3)(c) EC Treaty. By reference to the Switchover communication, they claim that the promotion of the digital terrestrial platform is in the common interest as it contributes to the achievement of a number of general interest objectives. They argue that the measure is necessary to maintain the terrestrial platform and to address a number of specific market failures. Furthermore, they take the view that the measure is both appropriate and proportionate to the objectives pursued.
2.3.1. Objective of common interest
(143)
As explained in the general considerations above, the Commission agrees insofar as the transition from analogue to digital broadcasting is to be considered as an objective of common interest. However, as also highlighted in Switchover communication and subsequent Commission policy documents related to the switchover, this does not provide a universal justification why only the digitisation of the terrestrial platform should be supported. On the contrary, the starting point is, as referred to above, that the transition must be led by the market and that in principle, each network should compete on its own strengths. In order to safeguard this principle, any public intervention shall aim at being technology neutral. The requirement for technology neutrality is not met in the present case.
(144)
In their submissions, the German authorities have called into question the appropriateness of the principle of technology neutrality for the purpose of the State aid assessment and claimed that technology neutrality cannot be achieved at the level of an individual State aid measure. They maintain that the overall policy of the German authorities is also technology-neutral and indicate that if it was necessary, they might also provide support to other platforms. However, they consider that the satellite technology does not need support for realising the switchover and the digitisation of cable is not sufficiently advanced to justify concrete support measures. At present, the Commission has not received any concrete information from the German authorities indicating that public funding would be foreseen for other means of transmission as well.
(145)
The Commission considers that these general arguments concerning the non-applicability of the principle of technology neutrality cannot be accepted. There is a difference between, on the one hand, financial support for the switchover from analogue to digital transmission and, on the other hand, measures which are merely supporting the digital terrestrial platform as such. Subsidies provided selectively to one of the directly competing transmission technologies introduce a strong distortion of competition among these technologies.
(146)
In accordance with Article 87(3)(c) and the applicable case law, such a distortion may only be accepted if it targets a specific market failure or equity problem and is at the same time necessary, appropriate and proportionate to the objectives pursued. In accordance with the State aid rules, this assessment has to be carried out individually for each measure.
(147)
Besides the overall objective of promoting the switchover, the German authorities have put forward that the measure aims at maintaining the terrestrial platform by means of promoting the launch of DVB-T. They claim that this contributes to strengthen competition both among broadcasters and at the level of the infrastructure transmission, promoting the achievement of a number of objectives of general interest.
(148)
In particular, they argue that the digitisation of terrestrial transmission contributes to media plurality, allowing commercial broadcasters to transmit their programmes in NRW over 12 channels instead of three in analogue mode. They claim that the terrestrial platform is better suited for the transmission of regional and local programmes than cable or satellite. Moreover, they argue that the measure contributes to ensuring universal coverage. The authorities also argue that the topology of the covered areas in North Rhine-Westphalia is such that the coverage of rural and remote areas is more costly and hence less attractive for the commercial roll-out of DVB-T than the territory of, for example, Berlin-Brandenburg. They argue that the measure would be a first step, acting as an incentive for the introduction of DVB-T in these zones at a later stage.
(149)
In addition, they emphasise the innovation potential of digital terrestrial television, claiming that only DVB-T allows for the development of digital mobile reception.
(150)
The Commission acknowledges the general interest objectives put forward by the German authorities. However, as demonstrated below, it considers that the aid is not specifically targeted to promote media plurality, regional and local content, universal coverage, to stimulate the provision of services in rural areas, or innovation and is not necessary, appropriate and proportionate to achieve the objectives pursued.
2.3.2. Necessity and appropriateness: well designed aid
(151)
The German authorities maintain that the envisaged measure is necessary to achieve the above mentioned objectives and to overcome specific market failures. Moreover, as a matter of principle, they claim that the Commission has no right to call into question the decision made by the Federal Government and the Länder to maintain the terrestrial platform and to carry out its digitisation. They also argue that the Commission is not entitled to consider whether other measures would have been more appropriate for achieving the same objective.
(152)
Above all, the Commission wishes to clarify that the present decision concerns specifically the measure notified by the German authorities for the introduction of DVB-T in North Rhine-Westphalia, and not the political decision of the German authorities to maintain the terrestrial platform. In the framework of the present procedure, the Commission is bound to assess under the State aid rules whether the State aid supporting the operational costs of commercial broadcasters is both necessary and proportionate to achieve the general interest objectives pursued by the German authorities in the circumstances of the case.
(153)
An analysis of the appropriateness of the State aid measure forms an inherent part of this assessment. The Commission considers that, apart from a proof of the necessity of a measure, the choice of State aid as a policy instrument should be motivated by the appropriateness of this particular instrument of State intervention to deliver the objective of common interest. In cases in which State aid is not an appropriate instrument to tackle a particular efficiency or equity concern, it might create unnecessary distortions to competition and trade that could be avoided by using another policy tool, such as regulatory instruments.
(154)
In the following, the Commission assesses, one by one, whether the present measure can be considered necessary and appropriate to address the general interest objectives put forward by the German authorities to justify the present measure and to remedy possible market failures which may hinder the achievement of these objectives. Furthermore, it evaluates whether the present measure can be considered proportionate to overcome these difficulties.
(155)
Regarding the strengthening of competition between transmission platforms, the German authorities have argued that the promotion of digital terrestrial television exercises a positive competitive pressure on the other transmission platforms and provides an incentive for the operators of the other platforms to improve and update their services and thereby would have the potential to accelerate digitisation on the other platforms too. Apart from being in contradiction to their claim that the measure does not distort competition, the German authorities have, however, not provided convincing evidence that broadcasting transmission in North Rhine-Westphalia is characterised by a structural competition problem. Even leaving aside terrestrial transmission, cable and satellite offer a large number of free-to-air television channels and are generally available. More competition is emerging from television via broadband (for example via xDSL technology) which is about to establish itself as an additional platform for broadcasting transmission. Consequently, and in accordance with the line taken in other Commission decisions on public support measures in favour of digital television (82), this justification cannot be accepted for granting aid.
(156)
As regards media plurality and the variety of channels, the digital terrestrial channels have been allocated in such a way that incumbent broadcasters have received a priority treatment while market entry has been marginal (83). Therefore, the measure is not targeted to increase the plurality of programme channels. Furthermore, as outlined in the opening decision (84), while increasing capacity relative to analogue transmission, the DVB-T network still compares unfavourably with the number of channels available via cable or satellite. Even in analogue mode, both alternative platforms offer more channels than DVB-T and most, if not all, of the programmes available over the DVB-T platform can also be viewed over cable and satellite.
(157)
The measure is also not specifically targeted at supporting broadcasters or channels which would provide regional or local programmes. In fact, local TV channels are transmitted, for instance, via cable in numerous areas of North Rhine-Westphalia, while there are no local TV channels transmitted via the digital terrestrial platform in this Land. The tender for the broadcasting licences did not specifically address the dimension of regional or local programming. None of the beneficiaries is a regional or local broadcaster and the receipt of the funding is not conditional upon the broadcast of regional or local programmes by the commercial broadcasters.
(158)
Furthermore, regarding the alleged safeguarding of universal coverage, the measure does not target areas where there could be a problem of coverage as a result of the switchover. The German authorities have admitted that from a technical point of view, practically every building may receive free-to-air television via satellite in North Rhine-Westphalia. This is currently not the case for DVB-T; the present measure is limited to urban areas with high population density where cable is also widely available.
(159)
The argument concerning the promotion of the introduction of DVB-T in rural and remote areas at a later stage has not been substantiated by the German authorities and there is no indication that the measure would have an effect on the promotion of DVB-T in less densely populated areas as the measure only targets the most populated areas of NRW. Moreover, the measure does not contain any specific incentive for the broadcasters to move to remote areas. Indeed, already when using the analogue transmission platform, the commercial broadcasters were never transmitting their programmes in North-Rhine Westphalia outside the main population centres.
(160)
Concerning the alleged objective of promoting innovation, the Commission notes, first of all, that the envisaged public funding is not focused on innovative media or telecommunications services, but only serves to subsidise the operational costs of broadcasters to transmit television programmes.
(161)
According to the information available to the Commission, the DVB-T network used in North Rhine-Westphalia uses the compression standard MPEG-2 whereas the more advanced MPEG-4 standard, which provides for a better use of frequency spectrum, will soon be available on the market (DVB-T 2). As regards mobile TV reception, the DVB-T platform used in North Rhine-Westphalia does not match the capabilities of advanced mobile TV technologies such as DVB-H (Digital Video Broadcast transmission to handheld terminals) (85) which offer a more stable signal reception and lower energy consumption. As regards potential innovation involving interactive services, DVB-T does not provide for a return channel and only carries the signal to the end user. Thus, interactivity is not an intrinsic feature of DVB-T.
(162)
Accordingly, DVB-T does not represent a clearly superior technological solution in terms of innovation. Moreover, as outlined above, the envisaged public support for DVB-T may hamper innovation based on other transmission platforms and technologies.
(163)
The German authorities have also asserted that the funding is necessary to maintain the terrestrial platform as such. They argue that the presence of commercial broadcasters and in particular of the big broadcasting groups RTL and ProSiebenSat.1 is necessary to maintain the attractiveness of the platform from the viewers’ point of view. According to the information provided by the German authorities, these broadcasting groups were only willing to participate on the condition that the digital terrestrial transmission does not involve additional costs for them compared to the analogue mode. Furthermore, the German authorities maintain that although the RTL group did not ask for funding, it made its participation conditional upon the presence of ProSiebenSat.1 on the platform.
(164)
In this respect, the German authorities have also invoked the examples of the other areas in North Rhine-Westphalia (Wuppertal, Ostwestfalen-Lippe, Münsterland, Aachen and South Westphalia), where the DVB-T platform has been or is being launched without the participation of the commercial broadcasters. In their view, this demonstrates that without funding, commercial broadcasters are unwilling to participate on the DVB-T platform.
(165)
The Commission considers that the information submitted by the German authorities does not demonstrate that the funding is necessary for securing the existence of the terrestrial platform. In the Commission’s view, the German authorities have not demonstrated the incentive effect between the envisaged funding and the presence of the private broadcasters on the terrestrial platform. It has not been proven that the envisaged aid measure really changes the behaviour of the recipients.
(166)
The general agreement on the introduction of DVB-T in North-Rhine Westphalia contained a binding timetable for the switchover without providing any clear indication about the envisaged funding measure. As highlighted under recital 19 above, the agreement only contained vague references to funding ‘for the technical infrastructure for DVB-T transmission’ and ‘for citizens on social grounds’. The announcement for the attribution of broadcasting licences did not contain any reference to the funding. The terms of the financial assistance were only laid down by means of the directive on financial support of 19 November 2004 after the attribution of the broadcasting licences and several months after the launch of DVB-T.
(167)
It follows from the above that commercial broadcasters were willing to engage in DVB-T without any concrete details regarding the financial assistance. Those broadcasters present on the analogue platform agreed to the binding timetable for the switchover without any clear indication about the funding measure. Moreover, as regards those commercial broadcasters which have previously not been present on the analogue platform, the submitted information indicates that LfM has received considerably more applications for digital licences than the number of channels available. In this respect, the German authorities maintain that on the basis of the general agreement concluded on 20 October 2003, all broadcasters knew about the possibility of funding. However, even if all applicants were aware of the general agreement to which they were not parties, this did not provide them with any clear indication about the funding measure.
(168)
In addition, the Commission notes that private broadcasters have already been present on the digital terrestrial platform for more than three years without public funding. Although more recently, TerraNova has left the platform, it has been replaced by another broadcaster, Tele5, following seven applications from commercial broadcasters. In the case of these broadcasters, there was clearly no guarantee for funding in light of the decision of the Commission in the Berlin-Brandenburg case and of the present procedure. In other Länder, for example in the Rhein-Main area and in the North of Germany, the commercial broadcasters are transmitting over the DVB-T platform without State aid (86).
(169)
Regarding those broadcasters already present on the analogue platform, the German authorities maintain that the measure was necessary to cover their ‘additional costs’ arising from digital transmission.
(170)
However, as assessed in recitals 74 and 123 above, the alleged ‘additional costs’ incurred by ProSiebenSat.1 and the RTL group are merely due to the increase in the number of channels, given that the digital transmission costs per channel are lower than the costs for analogue transmission. The German authorities have not substantiated why it was necessary for these broadcasters to be present with more channels in digital mode and why the commercial revenues from these channels were not taken into account in the calculation of the envisaged aid.
(171)
As regards the argument concerning the other areas of North Rhine-Westphalia where DVB-T is being launched without the participation of commercial broadcasters, the Commission considers that these areas are not comparable to the urban areas targeted by the present measure in terms of population density and attractiveness for commercial broadcasters. At the same time, these examples also indicate that it is possible to launch the digital terrestrial platform without the participation of commercial broadcasters, by means of a participation of the public service broadcasters.
(172)
The German authorities maintain that the measure addresses specific market failures which hinder the switchover to digital terrestrial television. By reference to the Switchover communication, they invoke the coordination problem among market players, risk, positive externalities and short-term cost increases associated with the switchover. They claim that in view of the decreasing share of terrestrial television and the high transmission costs, there was a risk that commercial broadcasters would switch-off analogue transmission abandoning the terrestrial platform. In their view, this would lead to losing the advantages of the terrestrial platform outlined above in terms of media plurality, universal coverage, broadcast of regional and local programmes, innovation potential, and infrastructure competition.
(173)
On these points, it should be analysed first whether these are genuine market failures which prevent the market to deliver the maximum outcome in terms of societal welfare. Second, it has to be assessed whether State aid is necessary and appropriate to remedy such market failures, and whether the present measure is proportionate to achieve this objective. It is only if the measure is both necessary and proportionate that the measure can be considered compatible under Article 87(3)(c) EC Treaty.
(174)
Regarding the coordination problem invoked by the German authorities, the Commission recognises that this may, in principle, represent a market failure hindering the transition from analogue to digital broadcasting. The problem arises because broadcasters need to agree on common dates for switching off analogue transmission and for switching on digital transmission so as to overcome the lack of frequency spectrum and to minimise the costs of parallel transmission. Consumers might not be willing to shift to digital transmission until the digital platform carries a large number of programmes. At the same time, broadcasters might wish to await the arrival of other broadcasters on the digital platform before they switch over themselves. In the absence of coordination, these issues might delay the switchover.
(175)
The Commission also acknowledges that accelerating the switch-off of analogue transmission is, in principle, a valid objective for public intervention in order to reap the benefits of the better use of the freed-up spectrum.
(176)
Regarding the coordination problem indicated above and in line with the approach taken in the Berlin-Brandenburg decision (87), the Commission considers that State aid is neither necessary, not an appropriate instrument to address this issue. The need for coordination arising in the context of the digital switchover can be, and indeed was in the present case, resolved by other means which are more suitable for this purpose and at the same time involve less distortion on the market.
(177)
In the present case, LfM has agreed on a timetable in the general agreement concluded with the broadcasters present on the analogue platform on 20 October 2003. Moreover, it has managed to fix a common date for the return of the analogue broadcasting licences. Furthermore, it has coordinated the switchover process with the Länder of Northern Germany. These measures have allowed launching the digital terrestrial platform in line with a common timetable and without any simulcast period for commercial broadcasters at the same time in several Länder. Thus, in addition, the funding of the broadcasters’ transmission costs does not appear necessary for this specific purpose.
(178)
The German authorities have declared that the envisaged payments are not only made to alleviate the commercial broadcasters from the ‘additional costs’ of broadcasting over the terrestrial platform but also claim that they are a compensation for the specific commercial risks (for instance through reduced commercial revenues) for the commercial broadcasters. Indeed, the 2003 Switchover communication mentions: ‘the likelihood of market failure is linked to the complexity of the environment where switchover takes place, and the interactions between the main parties involved (88).’ However, in the case at hand, this complexity was considerably reduced by the preparatory action of the LfM and every broadcaster knew about the estimated transmission costs and could make its own revenue forecasts.
(179)
Indeed, the authorities never substantiated or quantified these claims or the magnitude of the alleged risks. The Commission doubts that, in view of the successful switchover carried out without funding so far, there are such specific risks for the commercial broadcasters (89) in the case at hand apart from the general commercial risks associated to their activity which are independent from the platform over which they transmit broadcasting signals. The fact that there were more applicants for a licence to broadcast over digital terrestrial in North-Rhine Westphalia than licences available shows that commercial broadcasters are ready to participate in DVB-T, to pay the necessary transmission costs and take the commercial risk, even without guaranteed public funding.
(180)
Regarding the positive externalities related to the freeing-up of the frequency spectrum, these advantages arise mainly from the switch-off of the analogue terrestrial platform. This fact has not been put in question in the case of North Rhine-Westphalia. Given that the measure intends to subsidise the transmission costs of commercial broadcasters which are lower per channel for digital transmission than in analogue mode, the measure cannot be considered necessary to cover any possible short-term cost increases associated with the digital switchover either.
(181)
The German authorities have also argued that the funding was necessary to compensate commercial broadcasters for the return of their analogue licences before their expiry date. At the same time, the submissions also state that in order to compensate the broadcasters previously present in the analogue platform for giving up their analogue licences, these broadcasters have received a priority treatment in the procedure for the allocation of the broadcasting licences, which enabled RTL and ProSiebenSat.1 to apply with a set of programmes for entire multiplexes.
(182)
In this respect, the Commission notes in the first place that this argument is only relevant from the point of view of the financing granted to broadcasters which were previously present on the analogue platform and cannot be invoked to justify the necessity of the funding for the new broadcasters on the DVB-T platform. Regarding the broadcasters previously present on the analogue platform, however, this argument is not valid either. Among those broadcasters which have returned their analogue licences, only ProSiebenSat.1 is receiving a subsidy under the present measure and the calculation of the subsidy submitted by the German authorities does not take into account a possible value of the outstanding duration of the licences. In these circumstances, the funding of the transmission costs cannot be considered to be linked to the return of the analogue licences and to be necessary and appropriate for this purpose.
(183)
This is in particular the case in view of the compensation these broadcasters have already received in the context of the attribution of the digital terrestrial broadcasting licences. This priority treatment was not limited to guaranteeing a continued availability of their analogue programmes in digital mode, but enabled RTL and ProSiebenSat.1 to increase the number of their channels in the digital mode (two additional channels for the RTL Group and three additional channels for ProSiebenSat.1). At the same time, several other broadcasters had requested such a licence, without success, due to the limited amount of transmission channels available.
(184)
The German authorities have maintained that the present measure is proportionate to the objectives pursued. In their view, the funding represents the minimum necessary to provide an incentive for commercial broadcasters to be present on the DVB-T platform and thereby to secure the existence of the terrestrial platform. In their view, proportionality is ensured by means of only financing the ‘additional costs’ arising from digital transmission for those broadcasters previously present on the analogue platform and by providing for a decreasing funding for the new broadcasters on DVB-T. Concerning the amount of financing provided to the broadcasters previously not present on the analogue platform, the German authorities have not submitted any information justifying the share of transmission costs covered by the public support.
(185)
Moreover, as outlined, the Commission has several doubts related to the considerations and calculations related to the alleged ‘additional costs’ submitted by the German authorities. The Commission notes that the present measure subsidises the transmission costs for broadcasters which are actually lower per channel in digital terrestrial than in analogue terrestrial mode. The alleged ‘additional costs’ only arise in the case of RTL and ProSiebenSat.1 due to the increase in the number of channels in North Rhine-Westphalia as compared to the analogue mode. Broadcasters previously not present on the terrestrial platform do not have ‘additional costs’.
(186)
As regards the broadcasters previously present on the analogue platform, as indicated above, the measure cannot be considered as covering any ‘additional costs’ of digital transmission. There were no simulcast costs as a simulcast period has not taken place in relation to the commercial broadcasters. The German authorities have also not claimed that there were additional costs due to the switchover linked to investments in new technical equipment or similar. Under these circumstances, the Commission considers that the funding (even if it was considered necessary and appropriate, quod non) cannot be considered as limited to the minimum necessary.
2.3.3. Overall balance and conclusion regarding Article 87(3)(c) of the EC Treaty
(187)
In light of the above considerations, the Commission considers that the general interest objectives put forward by the German authorities and the market failures identified in relation to the digital switchover cannot serve as a justification for the aid granted in the present case. Accordingly, the Commission is not convinced that the aid is a necessary, appropriate and proportionate instrument to remedy those market failures and to achieve the general interest objectives pointed out by the German authorities. In particular, the Commission considers that in the context where, as at present, the market is capable of supporting different technologies (90) and various competing market-based solutions can be developed, the public support to the operational costs of commercial broadcasters on the DVB-T platform represents an unjustified departure from the principle of technology neutrality and introduces unnecessary distortions of competition.
(188)
Therefore, the Commission considers that the measure cannot be considered compatible with the common market on the basis of Article 87(3)(c) of the EC Treaty.
2.4. ARTICLE 87(3)(b) OF THE EC TREATY
(189)
According to Article 87(3)(b) of the EC Treaty ‘aid to promote the execution of an important project of common European interest’ may be considered to be compatible with the common market.
(190)
The German authorities maintain that the measure falls under Article 87(3)(b). They claim that in line with the Switchover communication, the digital switchover constitutes an important project of common European interest which also has economic, social and political effects. In their view, the measure addresses the significant short-term costs and the lack of coordination mechanisms in relation to the switchover, also referred to in the Switchover communication.
(191)
The Commission considers that in order to fall under Article 87(3)(b) of the EC Treaty, it is not sufficient that the overall objective is in the common European interest. It is the specific project implemented by the measure which has to be in the common European interest and be of European scale, forming part of a transnational European programme supported jointly by a number of Governments of the Member States, or arising from concerted action by a number of new Member States. As the ECJ stated ‘the mere fact that the investments envisaged enabled a new technology to be used does not make the project one of common European interest’ (91).
(192)
Based on the above, the Commission considers that the promotion of digital terrestrial television specifically in two urban areas of North Rhine-Westphalia cannot be considered as ‘an important project of common European interest’.
2.5. ARTICLE 87(3)(d) OF THE EC TREATY
(193)
Article 87(3)(d) of the EC Treaty concerns ‘aid to promote culture and heritage conservation where such aid does not affect trading conditions and competition in the Community to an extent that is contrary to the common interest’. Furthermore, Article 151(4) of the EC Treaty provides that ‘the Community shall take cultural aspects into account in its actions under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures’.
(194)
The German authorities maintain that the measure falls under Article 87(3)(d) of the EC Treaty because it contributes to ensuring a balanced broadcasting system and thereby promotes culture in the meaning of Article 151 of the EC Treaty.
(195)
As stipulated by Article 151(4), cultural aspects shall be taken into account in the Community’s action. At the same time, the Commission considers that the cultural derogation enshrined in Article 87(3)(d) of the EC Treaty, as any exception of the general rules of the Treaty, must be interpreted restrictively. Accordingly, the Commission considers that the cultural derogation can only be applied in cases where the cultural product is clearly identified or identifiable (92). Moreover, the Commission takes the view that the notion of culture must be applied to the content and nature of the product in question, and not to the medium or its distribution per se (93).
(196)
In the present case, the financial support concerns the transmission of broadcasting signals over the digital terrestrial platform and it is not related to any particular cultural content that would otherwise not be broadcast. Therefore, the Commission considers that the conditions for the application of Article 87(3)(d) of the EC Treaty are not met.
2.6. ARTICLE 86(2) OF THE EC TREATY
(197)
Article 86(2) of the EC Treaty provides that ‘undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community’.
(198)
As already outlined in recitals 91 and 92 above, the German authorities maintain that the measure represents a compensation for a service of general economic interest, i.e. the transmission of broadcasting programmes over the DVB-T platform. They claim that the commercial broadcasters have been entrusted with the service of general economic interest by means of the attribution of the digital terrestrial broadcasting licences, and accordingly they are obliged to broadcast their programmes to the public. They argue that the lack of funding would obstruct the provision of this service. In their view, commercial broadcasters would have been reluctant to participate in the DVB-T launch without the envisaged measure, which would have put the existence of the terrestrial platform at risk. Furthermore, they consider that the funding does not affect the development of trade to an extent as would be contrary to the interests of the Community.
(199)
According to the case law on the interpretation of Article 86(2) of the EC Treaty, in order for Article 86(2) of the EC Treaty to apply, the undertaking beneficiary of the aid must have been specifically entrusted by the Member State with the operation of a particular service of general economic interest. Such act or acts of entrustment must specify, at least, the precise nature, scope and duration of the public service obligations imposed and the identity of the undertakings concerned.
(200)
As already outlined in recital 93 above, the Commission does not call into question that digitisation of broadcasting is in the public interest. However, on the basis of the findings stated in recitals 92 to 96, the Commission considers that the present measure envisaging to grant support to normal commercial activities of commercial undertakings cannot be considered as compensation payment for the delivery of a service of general economic interest in accordance with Article 86(2) of the EC Treaty.
(201)
Moreover, even if the commercial broadcasters had been charged with the delivery of a service of general economic interest (quod non), Article 86(2) of the EC Treaty requires that the compensation does not exceed what is necessary to cover the costs incurred by the undertaking in discharging the public service obligations, account being taken of the relevant receipts and a reasonable profit.
(202)
As demonstrated in recitals 97 to 99 above, the envisaged public funding is not determined on objectively established criteria as foreseen under Article 86(2) of the Treaty. Moreover, the measure only takes into account the transmission costs of the commercial broadcasters transmitting over the digital terrestrial platform but not their receipts (for instance from advertising revenues).
(203)
Furthermore, in order to ensure compliance with the necessity requirement set out in Article 86(2) the granting authorities need to lay down provisions relating to the calculation and monitoring of the amount of compensation granted. Member States should check regularly that the compensation granted does not lead to overcompensation. The measure at hand does not foresee any such provisions or checks by the public authorities involved.
(204)
In view of the aforementioned, the Commission finds that the aid cannot be declared compatible under Article 86(2) of the EC Treaty.
VII. CONCLUSION
(205)
For these reasons, the Commission concludes that the funding envisaged by LfM to the commercial broadcasters constitutes State aid within the meaning of Article 87(1) of the EC Treaty and cannot be considered compatible with the common market in accordance with Article 87(3)(c), 87(3)(b), 87(3)(d) and 86(2) of the EC Treaty,
HAS ADOPTED THIS DECISION:
Article 1
The State aid which the Federal Republic of Germany is planning to implement for the introduction of digital terrestrial television in North Rhine-Westphalia to commercial broadcasters on the DVB-T platform based on the directive on the financial support for DVB-T (Richtlinie der Landesanstalt für Medien Nordrhein-Westfalen über die Gewährung von Zuwendungen zur Förderung von digitalem terrestrischem Fernsehen als Maßnahme und Projekt für neuartige Rundfunksübertragungstechniken gem. § 88 Abs. 3 S. 5 und 6 LMG NRW) of 19 November 2004, notified to the Commission by letter of 13 January 2005 is incompatible with the common market.
The aid may accordingly not be implemented.
Article 2
The Federal Republic of Germany shall inform the Commission, within two months of notification of this Decision, of the measures taken to comply with it.
Article 3
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 23 October 2007.
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COMMISSION REGULATION (EC) No 944/2006
of 26 June 2006
opening crisis distillation as provided for in Article 30 of Council Regulation (EC) No 1493/1999 for certain wine in Italy
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), and in particular Article 33(1)(f) thereof,
Whereas:
(1)
Article 30 of Regulation (EC) No 1493/1999 provides for the possibility of a crisis distillation measure in the event of exceptional market disturbance due to major surpluses. Such measures may be limited to certain categories of wine and/or certain areas of production, and may apply to quality wines produced in specified regions (quality wines psr) at the request of the Member State concerned.
(2)
By letter of 14 April 2006, the Italian Government requested that crisis distillation be opened for table wine produced in Italy and for certain quality wines psr.
(3)
Considerable surpluses have been recorded on the market in table wine and certain quality wines psr in Italy, which are reflected in a fall in prices and a worrying rise in stocks towards the end of the current marketing year. In order to reverse this negative trend, and so remedy the difficult market situation, stocks of Italian wine should be reduced to a level that can be regarded as normal in terms of covering market requirements.
(4)
Since the conditions laid down in Article 30(5) of Regulation (EC) No 1493/1999 are satisfied, a crisis distillation measure should be opened for a maximum of 2 500 000 hectolitres of table wine and 100 000 hectolitres of certain quality wines psr.
(5)
The crisis distillation opened by this Regulation must comply with the conditions laid down by Commission Regulation (EC) No 1623/2000 of 25 July 2000 laying down detailed rules for implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine with regard to market mechanisms (2) as regards the distillation measure provided for in Article 30 of Regulation (EC) No 1493/1999. Other provisions of Regulation (EC) No 1623/2000 must also apply, in particular those concerning the delivery of alcohol to intervention agencies and the payment of advances.
(6)
The price distillers must pay producers should be set at a level that permits the market disturbance to be dealt with by allowing producers to take advantage of the possibility afforded by this measure.
(7)
The product of crisis distillation must be raw or neutral alcohol only, for compulsory delivery to the intervention agency in order to avoid disturbing the market for potable alcohol, which is supplied largely by the distillation provided for in Article 29 of Regulation (EC) No 1493/1999.
(8)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,
HAS ADOPTED THIS REGULATION:
Article 1
Crisis distillation as provided for in Article 30 of Regulation (EC) No 1493/1999 is hereby opened for a maximum of 2 500 000 hectolitres of table wine and 100 000 hectolitres of quality wines produced in specified regions (quality wines psr) with the appellations Barbera d’Asti, Barbera Monferrato, Piemonte Barbera, Dolcetto d’Ovada, Dolcetto d’Acqui, Dolcetto d’Asti, Monferrato Dolcetto, Grignolino d’Asti and Piemonte Grignolino, in accordance with the provisions of Regulation (EC) No 1623/2000 concerning this type of distillation.
Article 2
Producers may conclude contracts as provided for in Article 65 of Regulation (EC) No 1623/2000 (hereinafter referred to as contracts) from 3 July 2006 to 24 July 2006 in the case of table wine and from 3 July 2006 to 14 July 2006 in the case of quality wines psr.
Contracts shall be accompanied by proof that a security equal to EUR 5 per hectolitre has been lodged.
Contracts may not be transferred.
Article 3
1. If the total quantities covered by the contracts submitted to the intervention agency exceed the quantities laid down in Article 1, Italy shall determine the rates of reduction to be applied to those contracts.
2. Italy shall take the administrative steps necessary to approve the contracts not later than 13 September 2006 in the case of table wine and 28 July 2006 in the case of quality wines psr. The approval shall specify any rate of reduction applied and the quantity of wine accepted per contract and shall stipulate that the producer may cancel the contract where the quantity to be distilled is reduced.
Italy shall notify the Commission before 20 September 2006 in the case of table wine and 25 August 2006 in the case of quality wines psr of the quantities of wine covered by approved contracts.
3. Italy may limit the number of contracts that individual producers may conclude under this Regulation.
Article 4
1. The quantities of wine covered by approved contracts shall be delivered to the distilleries not later than 15 December 2006 in the case of table wine and 31 August 2006 in the case of quality wines psr. The alcohol obtained shall be delivered to the intervention agency in accordance with Article 6(1) not later than 31 March 2007 in the case of table wine and 30 September 2006 in the case of quality wines psr.
2. The security shall be released in proportion to the quantities delivered when the producer presents proof of delivery to a distillery.
The security shall be forfeit where no delivery is made within the time limit laid down in paragraph 1.
Article 5
The minimum price paid for wine delivered for distillation under this Regulation shall be EUR 1,914/% vol/hl for table wine and EUR 3,00/% vol/hl for quality wines psr.
Article 6
1. Distillers shall deliver the product obtained from distillation to the intervention agency. That product shall be of an alcoholic strength of at least 92 % vol.
2. The price to be paid to the distiller by the intervention agency for the raw alcohol delivered shall be EUR 2,281/% vol/hl where it is produced from table wine and EUR 3,367/% vol/hl where it is produced from quality wines psr. The payment shall be made in accordance with Article 62(5) of Regulation (EC) No 1623/2000.
Distillers may receive an advance on those amounts of EUR 1,122/% vol/hl in the case of alcohol produced from table wine and EUR 2,208/% vol/hl in the case of alcohol produced from quality wines psr. In that case the advances shall be deducted from the prices actually paid. Articles 66 and 67 of Regulation (EC) No 1623/2000 shall apply.
Article 7
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
It shall apply from 3 July 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 June 2006.
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COMMISSION REGULATION (EC) No 37/96 of 11 January 1996 opening and providing for the administration of a Community tariff quota for oranges intended for processing
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3290/94 of 22 December 1994 on the adjustments and transitional arrangements required in the agriculture sector in order to implement the agreements concluded during the Uruguay Round of multilateral trade negotiations (1), and in particular Article 3 (1) thereof,
Having regard to Council Regulation (EEC) No 1035/72 of 18 May 1972 on the common organization of the market in fruit and vegetables (2), as last amended by Commission Regulation (EC) No 1363/95 (3), and in particular Article 23 (2) thereof,
Whereas Annex 2 in Section I of Part III to (Combined Nomenclature) to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (4), as last amended by Commission Regulation (EC) No 2810/95 (5), contains a list of products to which an entry price applies and, for each thereof, a scale of entry prices for the tariff classification of imported products and for determining the import duties applicable; whereas the system of entry price was introduced for fruit and vegetables as a result of the Agreement on Agriculture concluded under the Uruguay Round of multilateral trade negotiations; whereas the application of such entry prices in the case of oranges imported with a view to processing imposes an excessive burden on the industry temporarily and accordingly constitutes a barrier to trade;
Whereas the period of application of the entry price for oranges commences on 1 December; whereas certain derogating measures should therefore be adopted provisionally for the period 1 December 1995 to 31 March 1996 so as to ensure supplies to the industry and trade under normal conditions until such time as the processing industry has adapted to the results of the Uruguay Round of multilateral trade negotiations; whereas provision should accordingly be made for a temporary derogation from Regulation (EEC) No 2658/87 and these transitional measures should be made applicable from 1 December 1995;
Whereas, for the products in question, which are not sold on consignment on the representative markets, a mechanism for the direct recording of prices may be implemented for their tariff classification; whereas, therefore, for the period 1 December 1995 to 31 March 1996, Article 5 (1) (a) of Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (6), as last amended by Regulation (EC) No 2933/95 (7), should be applied to them;
Whereas such a derogation must be limited to a maximum of 12 000 tonnes for the period 1 December 1995 to 31 March 1996;
Whereas, in order to ensure that the quantity covered by the quota is actually used for processing in the Community, provision should be made for operators to lodge a security equal to the difference between the normal customs duties and the duties referred to in the Annex to this Regulation; whereas the security is to be released in proportion to the quantities for which proof of processing is provided to the satisfaction of the customs authorities;
Whereas the reduced entry price takes account of information received by the Commission on the subject;
Whereas the Management Committee for Fresh Fruit and Vegetables has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
The duty set out in the Annex shall apply to oranges (CN codes 0805 10 61, 0805 10 65, 0805 10 69, 0805 10 01, 0805 10 05 and 0805 10 09) imported with a view to processing in the Community under a Community tariff quota of 12 000 tonnes for the period 1 December 1995 to 31 March 1996 in accordance with the provisions of this Regulation.
Article 2
1. In managing the quota referred to in Article 1, the Commission shall take all appropriate measures to ensure effective administration.
2. Where, in a Member State, an importer submits a declaration of release for free circulation comprising an application to qualify under the tariff quota for the product referred to in Article 1 and where that declaration is accepted by the customs authorities, the Member State concerned shall draw a quantity corresponding to its needs against the quota by notifying the Commission.
Requests to draw against the quota with details of the date of acceptance of such declarations must be forwarded to the Commission without delay.
Permission to draw shall be granted by the Commission on the basis of the date of acceptance of the declarations of release for free circulation by the customs authorities of the Member State concerned in so far as the available balance permits.
3. Where a Member State does not use the quantities drawn, it shall transfer them as soon as possible back to the quota for the product referred to in Article 1.
4. Where the quantities applied for exceed the available balance of the quota, that balance shall be allocated in proportion to applications. The Member States shall be informed of the quantities drawn.
Article 3
1. Declarations of release for free circulation under the tariff quota for the product referred to in Article 1 must be accompanied by proof that a security equal, in respect of the quantities in question, to the difference between the normal customs duties and the duties referred to in the Annex.
2. Securities lodged shall be released in proportion to the quantities for which proof of processing has been provided to the satisfaction of the customs authorities.
Article 4
Article 5 (1) (a) of Regulation (EC) No 3223/95 shall apply to imports under the quota referred to in Article 1 in the period 1 December 1995 to 31 March 1996.
Article 5
The Member States and the Commission shall cooperate closely to ensure that the provisions of this Regulation are observed.
Article 6
The Member States shall ensure that importers have equal, continuous access to the tariff quota referred to in Article 1 in so far as the balance of the quota permits.
Article 7
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 1 December 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 January 1996.
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Commission Regulation (EC) No 2343/2003
of 23 December 2003
concerning the classification of certain goods in the Combined Nomenclature
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff(1), as last amended by Commission Regulation (EC) No 1949/2003(2), and in particular Article 9(1)(a) thereof,
Whereas:
(1) In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation.
(2) Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific Community provisions, with a view to the application of tariff and other measures relating to trade in goods.
(3) Pursuant to those general rules, the goods described in column 1 of the table set out in the Annex should be classified under the CN code indicated in column 2, by virtue of the reasons set out in column 3.
(4) It is appropriate to provide that binding tariff information issued by the customs authorities of Member States in respect of the classification of goods in the Combined Nomenclature and which is not in accordance with this Regulation, can continue to be invoked by the holder for a period of three months, under Article 12(6) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(3), as last amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council(4).
(5) The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,
HAS ADOPTED THIS REGULATION:
Article 1
The good described in column 1 of the table set out in the Annex shall be classified within the Combined Nomenclature under the CN code indicated in column 2.
Article 2
Binding tariff information issued by the customs authorities of Member States which is not in accordance with this Regulation can continue to be invoked for a period of three months under Article 12(6) of Regulation (EEC) No 2913/92.
Article 3
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, 23 December 2003.
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*****
COUNCIL REGULATION (EEC) No 2735/90
of 24 September 1990
imposing a definitive anti-dumping duty on imports of tungsten ores and concentrates originating in the People's Republic of China and definitively collecting the provisional anti-dumping duty
THE COUNCIL 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 12 thereof,
Having regard to the proposal submitted by the Commission after consultation within the Advisory Committee as provided for under that Regulation,
Whereas:
A. Provisional measures
(1) The Commission, by Regulation (EEC) No 761/90 (2), imposed a provisional anti-dumping duty on imports of tungsten ores and concentrates originating in the People's Republic of China. This duty was extended for a maximum period of two months by Regulation (EEC) No 2128/90 (3).
B. Subsequent procedure
(2) Following the imposition of the provisional anti-dumping duty, the China Chamber of Commerce of Metals, Minerals and Chemicals Importers and Exporters, on behalf of two Chinese exporters - the China National Non-Ferrous Metals Imports and Export Corporation (CNIEC) and the China National Metals and Minerals Import and Export Corporation (Minmetals), requested and was granted a hearing.
(3) The Commission informed the China Chamber of Commerce of Metals, Minerals and Chemicals Importers and Exporters of the essential facts and considerations on the basis of which it intended to recommend the importation of definitive duties and the definitive collection of amounts secured by way of the provisional duties. The Chinese exporters were also granted a period by the Commission within which they could make further representations.
(4) The investigation has not been concluded within the time limit set by Article 7 (9) (a) of Regulation (EEC) No 2423/88 because of the time spent in consultation within the Advisory Committee prior to the imposition of provisional measures.
C. Products covered by the investigation and definition of like product
(5) The Chinese exporters have alleged that their exports of tungsten ores and concentrates are not like products to those produced in the Community. They claimed that they have only exported wolframite concentrate with a 55 % to 56 % tungsten oxide content whereas the Community produces both wolframite and scheelite at a much higher percentage tungsten oxide content.
The Commission in its investigation has found that the imports of these products from the two Chinese exporters concerned during the investigation period consisted of wolframite with a tungsten oxide content of between 72 % and 74 %. The Community producer is also only producing wolframite concentrates, and not scheelite, with a 75 % to 76 % tungsten oxide content. Furthermore, the Commission has found that both the Chinese imports and the Community produced products have the same end uses and the same markets in the Community.
(6) In these circumstances the Commission has concluded that the products under consideration have sufficiently close physical and technical characteristics, and the same end uses and markets to be considered as like products. The Council
therefore confirms the conclusion that tungsten ores and concentrates produced in the Community are like products to all Chinese imports of tungsten ores and concentrates, within the meaning of Article 2 (12) of Regulation (EEC) No 2423/88.
D. Dumping
(7) In establishing the normal value, the Commission had to take account of the fact that the People's Republic of China does not have a market economy and that, therefore, in accordance with Regulation (EEC) No 2423/88, normal value should be determined with reference to prices or costs of a producer or producers in a market economy country. In this connection the Commission based its calculation of normal value on the constructed value of the like product in Australia and set out its reasons for so doing in recitals 11, 12 and 13 of Regulation (EEC) No 761/90.
(8) The Chinese exporters repeated the objections concerning the use of a scheelite mine in Australia for determining normal value which had been presented by an importer to the Commission prior to the determination of provisional findings (recital 12 of Regulation (EEC) No 761/90).
The Commission has already given careful consideration to these arguments and notes that the Chinese exporters produced no evidence to support their claims nor did they suggest an alternative basis for determining normal value. The Council therefore confirms the Commission's provisional findings concerning the basis for determining the normal value.
(9) No further observations concerning the establishment of dumping were submitted to the Commission. Consequently the findings on dumping, as set out in recitals 16 and 17 of Regulation (EEC) No 761/90, are confirmed by the Council.
E. Injury
(10) As regards the injury caused by the dumped imports, the Chinese exporters advanced two main arguments to contest the Commission's preliminary conclusions as set out in Regulation (EEC) No 761/90.
(11) The Chinese exporters have claimed firstly that a fall in demand has had a more significant impact on prices and on sales volumes in the Community than the Chinese imports. Secondly, they have alleged that the prices of Chinese exporters to the Community have been undercut by other third country exports into the Community.
(12) In recital 22 of Regulation (EEC) No 761/90, the Commission had examined the impact of both the above two factors on the Community market. The reduction in consumption in the Community of tungsten ores and concentrates resulted in a fall in sales of the Community producer from 1984 to 1988. The Community producer implemented restructuring measures by reducing the level of employment and significantly reducing its unit costs of production (see recital 20 of Regulation (EEC) No 761/90). Due to these actions, the Community producer succeeded in maintaining its market share, which in 1988 was virtually identical to that in 1984, but its financial losses were substantial as it had been forced to match the selling prices of the Chinese imports. In fact, as set out in recital 19 of Regulation (EEC) No 761/90, the Chinese exporters maintained their prices during this period at levels which jeopardized all efforts of the Community producer to adapt to the reduction in demand for this product in the Community. It is clear therefore that the reduction in consumption has not had the same effect on the Community industry as on the dumped Chinese imports, which increased their share of the Community market from 37 % to 47 % from 1984 to 1988.
(13) In the case of other third country imports, the Commission had found that these prices did not undercut those of the Chinese imports during the reference period and that the market share of other third country imports has fallen from 1984 to 1988 whillst the market share held by Chinese imports has increased.
(14) While factors of falling demand and other third country imports may have contributed in part to the material injury found, the Commission has concluded that the injury to the Community industry caused by dumped imports originating in the People's Republic of China is, taken in isolation, material. Moreover, Article 4 of Regulation (EEC) No 2423/88 does not confine findings of injury to cases where dumping is the principal cause (see the Judgment of the Court of 5 October 1988 in Joined Cases 277 and 300/85, Canon v. Council, [1988] ECR, p. 5731, Ground 62).
(15) Consequently the Council confirms the conclusions as regards the injury to the Community industry which the Commission reached in its preliminary conclusions (recitals 18 to 23 of Regulation (EEC) No 761/90).
F. Community interest
(16) No new information concerning Community interest has been received since the imposition of provisional measures and the Council has therefore confirmed the Commission's conclusions in Regulation (EEC) No 761/90 and has thus concluded that it is in the Community's interest that action be taken. G. Definitive duty
(17) The Council confirms that it is considered necessary to apply an ad valorem duty which, while remaining substantially lower than the dumping margin, corresponds to the minimum price required to ensure that the Community producer receives an adequate return on his sales.
(18) Since the Commission's conclusions concerning the form and rate of the provisional anti-dumping duty set out in Regulation (EEC) No 761/90 remain unchanged, the amount of the definitive anti-dumping duty should be equal to that of the provisional anti-dumping duty.
H. Undertaking
(19) Two Chinese exporters, CNIEC and Minmetals, have offered price untertakings which are considered to be acceptable. The effect of these undertakings will be to increase the prices of the products concerned to remove the injury caused to the Community industry. After consultation, these undertakings were accepted by Commission Decision 90/478/EEC (4).
I. Collection of provisional duty
(20) In view of the size of the dumping margins established and the seriousness of the injury caused to the Community industry, the Council considers it necessary that the amounts secured by way of provisional anti-dumping duty should be definitively collected to the extent of the amount of the duty definitively imposed. In respect of the exporters whose undertakings have been accepted the provisional duty should be collected at the levels of the dumping margins definitively established,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of tungsten ores and concentrates falling within CN code 2611 00 00 and originating in the People's Republic of China.
2. The rate of duty shall be 42,4 % of the net, free-at-Community-frontier price, before duty (Taric additional code: 8433).
3. The duty specified in paragraph 2 shall not apply to tungsten ores and concentrates exported to the Community by:
- China National Non-Ferrous Metals Import and Export Corporation (CNIEC), (Taric additional code: 8432)
- China National Metals and Minerals Import and Export Corporation (Minmetals), (Taric additional code: 8432)
Article 2
The amounts secured by way of provisional anti-dumping duties, under Regulation (EEC) No 761/90, shall be collected up to 42,4 % except for China National Non-Ferrous Metals Import and Export Corporation (CNIEC) for which a rate of 37,0 % shall apply.
Amounts secured which are not covered by the above rates of duty shall be released.
Article 3
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, 24 September 1990.
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Commission Regulation (EC) No 1295/2001
of 28 June 2001
fixing production refunds on cereals and rice
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), and in particular Article 7 (3) thereof,
Having regard to Council Regulation (EC) No 3072/95 of 22 December 1995 on the common organisation of the market in rice(3), as last amended by Regulation (EC) No 1667/2000(4), and in particular Article 7(2) thereof,
Having regard to Commission Regulation (EEC) No 1722/93 of 30 June 1993 laying down detailed rules for the arrangements concerning production refunds in the cereals and rice sectors(5), as last amended by Regulation (EC) No 87/1999(6), and in particular Article 3 thereof,
Whereas:
(1) Regulation (EEC) No 1722/93 establishes the conditions for granting the production refund; whereas the basis for the calculation is established in Article 3 of the said Regulation; whereas the refund thus calculated must be fixed once a month and may be altered if the price of maize and/or wheat changes significantly.
(2) The production refunds to be fixed in this Regulation should be adjusted by the coefficients listed in the Annex II to Regulation (EEC) No 1722/93 to establish the exact amount payable.
(3) 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 refund referred to in Article 3(2) of Regulation (EEC) No 1722/93, expressed per tonne of starch extracted from maize, wheat, barley, oats, potatoes, rice or broken rice, shall be EUR 0,00/t.
Article 2
This Regulation shall enter into force on 29 June 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 June 2001.
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COMMISSION REGULATION (EC) No 1430/97 of 23 July 1997 amending Regulation (EC) No 1588/94 laying down detailed rules for the application to milk and milk products of the arrangements provided for in the Europe Agreements between the Community of the one part and Bulgaria and Romania of the other part
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3383/94 of 19 December 1994 on certain procedures for applying the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part (1), and in particular Article 1 thereof,
Having regard to Council Regulation (EC) No 3382/94 of 19 December 1994 on certain procedures for applying the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and Romania, of the other part (2), and in particular Article 1 thereof,
Having regard to Council Regulation (EC) No 3066/95 of 22 December 1995 establishing certain concessions in the form of Community tariff quotas for certain agricultural products and providing for the adjustment, as an autonomous and transitional measure, of certain agricultural concessions provided for in the Europe Agreements to take account of the Agreement on Agriculture concluded during the Uruguay Round Multilateral Trade Negotiations (3), as last amended by Regulation (EC) No 2490/96 (4), and in particular Article 8 thereof,
Whereas Article 4 (1) of Commission Regulation (EC) No 1588/94 (5), as last amended by Regulation (EC) No 1117/97 (6), stipulates that licence applications for the three months from 1 July to 30 September 1997 may only be lodged during a ten-day period starting 15 July;
Whereas, in order to permit the application from 1 July 1997 of the results of the negotiations on the Additional Protocols to the Europe Agreements as regards the agricultural sector, in anticipation of the entry into force of the Additional Protocols themselves, Regulation (EC) No 3066/95 should be amended; whereas it was not possible for the Council to decide on the proposed amendment before 1 July 1997; whereas, therefore, because of the exceptional circumstances and in order to guarantee proper administration of the arrangements, the period for the lodging of licence applications for the third quarter of 1997 should be put back by 15 additional days;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
In Article 4 (1) of Regulation (EC) No 1588/94, the last subparagraph is replaced by the following:
'However, for the three months from 1 July to 30 September 1997, licence applications may only be lodged during a period of 10 days commencing on 1 August`.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 July 1997.
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COMMISSION REGULATION (EC) No 1376/2007
of 23 November 2007
amending Annex I to Regulation (EC) No 304/2003 of the European Parliament and of the Council concerning the export and import of dangerous chemicals
(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 304/2003 of the European Parliament and of the Council of 28 January 2003 concerning the export and import of dangerous chemicals (1), and in particular Article 22(4) thereof,
Whereas:
(1)
Regulation (EC) No 304/2003 implements the Rotterdam Convention on the Prior Informed Consent Procedure (PIC procedure) for Certain Hazardous Chemicals and pesticides in International Trade, signed on 11 September 1998 and approved, on behalf of the Community, by Council Decision 2003/106/EC (2).
(2)
Annex I to Regulation (EC) No 304/2003 should be amended to take into account regulatory action in respect of certain chemicals taken pursuant to Council Directive 76/769/EEC of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (3), Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (4), 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 (5) and of other Community legislation. In those cases where the restrictions imposed through those acts are not to be implemented until a future date, the obligations imposed by Regulation (EC) No 304/2003 should not start to apply before those dates in order to facilitate implementation.
(3)
Pursuant to Directive 76/769/EEC, perfluorooctane sulfonates are severely restricted for industrial use and thus should be added to the lists of chemicals contained in Parts 1 and 2 of Annex I to Regulation (EC) No 304/2003.
(4)
It has been decided not to include the substances dimethenamid, phosalone, alachlor, thiodicarb, oxydemethon-methyl, cadusafos, carbofuran, carbosulfan, haloxyfop-R as active substances in Annex I to Directive 91/414/EEC, with the effect that those active substances are banned for pesticide use and thus should be added to the lists of chemicals contained in Parts 1 and 2 of Annex I to Regulation (EC) No 304/2003.
(5)
It has been decided not to include carbaryl and trichlorfon as active substances in Annex I to Directive 91/414/EEC and not to include carbaryl and trichlorfon as active substances in Annex I, IA or IB to Directive 98/8/EC with the effect that those active substances are banned for pesticide use and thus should be added to the lists of chemicals contained in Parts 1 and 2 of Annex I to Regulation (EC) No 304/2003.
(6)
It has been decided not to include malathion as an active substance in Annex I to Directive 91/414/EEC with the effect that this active substance is banned for use in the subcategory pesticide in the group of plant protection products and thus should be added to the list of chemicals contained in Part 1 of Annex I to Regulation (EC) No 304/2003.
(7)
It has been decided not to include fenitrothion, dichlorvos, diazinon and diuron as active substances in Annex I to Directive 91/414/EEC with the effect that those active substances are banned for use in the subcategory pesticide in the group of plant protection products, and thus should be added to Part 1 of Annex I to Regulation (EC) 304/2003, despite the fact that those substances have been identified and notified for evaluation under Directive 98/8/EC and may thus continue to be authorised by Member States until a decision under that Directive will be taken.
(8)
Directive 91/414/EEC provides in Article 8(2) for a time period of 12 years during which Member States are allowed to authorise the placing on the market of plant protection products containing certain active substances. That time period has been extended by Commission Regulation (EC) No 2076/2002 of 20 November 2002 extending the time period referred to in Article 8(2) of Council Directive 91/414/EEC and concerning the non-inclusion of certain active substances in Annex I to that Directive and the withdrawal of authorisations for plan protections products containing these substances (6). However, since no directive was adopted including the active substances azinphos-methyl and vinclozolin in Annex I to Directive 91/414/EEC before the expiry of the time period defined for those substances, Member States were obliged to withdraw national authorisations of plant protection products containing those substances as from 1 January 2007. As a result the active substances azinphos-methyl and vinclozolin are therefore banned for pesticide use and thus should be added to the list of chemicals contained in Part 1 of Annex I to Regulation (EC) No 304/2003.
(9)
Annex I to Regulation (EC) No 304/2003 should therefore be amended accordingly.
(10)
The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 29 of Directive 67/548/EEC,
HAS ADOPTED THIS REGULATION:
Article 1
Annex I to Regulation (EC) No 304/2003 is amended in accordance with the Annex to this Regulation.
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, 23 November 2007.
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COMMISSION REGULATION (EC) No 1761/2004
of 12 October 2004
laying down specific measures in the cauliflower sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (1), and in particular Article 17 thereof,
Whereas:
(1)
Cauliflower production is characterised by wide fluctuations in supply depending on the weather. Demand for cauliflowers also fluctuates in line with the weather, but inversely to supply. The market in fresh cauliflowers is therefore marked by rapid and unpredictable developments, with an extremely wide range of prices charged on the markets in fresh cauliflowers not intended for processing. Fluctuations occur each year, at irregular intervals and to varying degrees, which causes continuing difficulties for the cauliflower sector.
(2)
Under the intervention arrangements laid down in Title IV of Regulation (EC) No 2200/96 and implemented by Commission Regulation (EC) No 103/2004 of 21 January 2004 laying down detailed rules for implementing Council Regulation (EC) No 2200/96 as regards intervention arrangements and market withdrawals in the fruit and vegetable sector (2), the quantities withdrawn may not exceed 10 % of the quantity marketed at any point of the marketing year. The scale of the short-term cyclical developments for cauliflowers is such that these limits prevent effective regulation of the market by producer organisations using only the general instruments of intervention.
(3)
To improve competitiveness in the sector, provisions should be introduced to smooth cyclical developments by allowing, through the payment of a specific aid, the processing of certain quantities intended initially for the fresh product market where excess supply leads to a collapse in prices and provided that these quantities meet certain quality requirements. However, to avoid this mechanism generating a rise in production, the amount of aid must remain well below the difference in the prices of cauliflowers intended for the fresh product market and cauliflowers intended for processing.
(4)
There is also a need to ensure that producer organisations employ their own resources for the prevention and management of cyclical crises. As a result, the minimum quantities delivered for processing must be taken over by producer organisations without benefiting from the aid, for the purposes of prevention and management of cyclical crises.
(5)
As the purpose of the operation is to smooth out the occasional peaks in production, the total share of production which may benefit from either these new provisions or the traditional withdrawals mechanism must continue to be limited to 15 %.
(6)
Producer organisations wishing to make use of these provisions must guarantee the processors with whom they work supplies of minimum quantities throughout the marketing year, by means of contracts, so that the activity of those processors does not depend entirely on crises affecting cauliflowers intended for the fresh market.
(7)
To identify a state of crisis, a price quotation must be fixed as a reference amount for monitoring cyclical developments on the market in fresh cauliflowers, as must the price level below which, for this price quotation, the market in fresh cauliflowers must be considered to be in crisis and specific measures may be triggered.
(8)
This kind of system means that producers must notify all deliveries of cauliflowers for processing, even those which do not benefit from the aid in question, in order to allow checks on the total quantities processed.
(9)
Specific measures are innovative compared with the general instruments used by the common organisations of the markets in fruit and vegetables. At this stage, therefore, their scope should be limited in terms of budget and quantity and also of time, so as to allow a precise assessment of the impact of these measures before these provisions are extended. As a result, in order to avoid any budget overrun, a system for the quarterly notification of aid applications should be organised to enable a reduction percentage for applications to be fixed where necessary. In this kind of notification system, any delay in communicating aid applications by producer organisations renders the operation ineligible.
(10)
Checks on the total quantities processed must cover the lots that are physically presented, to ensure that they tally with the weight declarations, and, a posteriori, that the physical flows declared tally with the transactions recorded by the producer organisations and processors. Checks should be accompanied by penalties commensurate with any failings.
(11)
Finally, to ensure close monitoring of the measure by the Commission, Member States must transmit the required information to the Commission as quickly as possible.
(12)
The Management Committee for fresh Fruit and Vegetables has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
Purpose
1. Under the terms of this Regulation, producer organisations shall receive aid of EUR 50 per tonne for certain cauliflowers harvested in the Community falling within CN code ex 0704 10 00 delivered for processing when price levels have dropped on the fresh cauliflower market.
2. The aid referred to in paragraph 1 shall be paid quarterly, in accordance with the periods laid down in the second paragraph of Article 3, for certain quantities of cauliflowers delivered to processors and accepted by those processors where the price conditions referred to in the first subparagraph of Article 5(5) have been met.
3. For each quarter concerned, without prejudice to Article 8(4), the aid referred to in paragraph 1 of this Article shall be paid for the quantities delivered to processors, and accepted by those processors, in excess of the minimum quantities referred to in Article 4(2)(c).
The sum of the quantities benefiting from the aid referred to in paragraph 1 and of the quantities withdrawn under the terms of Article 23 of Regulation (EC) No 2200/96 may not, however, exceed 15 % of the quantities marketed in the same quarter.
Article 2
Minimum quality requirements
Products delivered for processing must be whole, of sound, genuine and merchantable quality and suitable for processing. Products affected by rot shall be excluded.
Article 3
Advance application by producer organisations
To qualify for the aid referred to in Article 1, producer organisations must:
(a)
be recognised or have been granted preliminary recognition under Regulation (EC) No 2200/96;
(b)
have in advance concluded contracts which link them to one or more cauliflower processors;
(c)
submit an advance application to the competent authorities of the Member State no later than 15 days before the beginning of the first period applied for by the producer organisation out of the periods set out in the second paragraph.
The application shall include copies of the contracts referred to in point (b) of the first paragraph and shall cover one or more of the following periods:
(a)
from 1 November 2004 to 31 January 2005;
(b)
from 1 February 2005 to 30 April 2005;
(c)
from 1 May 2005 to 31 July 2005;
(d)
from 1 August 2005 to 31 October 2005.
Article 4
Contracts
1. The contracts referred to in point (b) of the first paragraph of Article 3 shall be concluded in writing. They shall cover the periods laid down in the second paragraph of Article 3, which are the subject of an advance application from the producer organisation.
2. Contracts shall specify, in particular:
(a)
the name and address of the contracting producer organisation;
(b)
the name and address of the processor;
(c)
the minimum quantity of raw material to be delivered for processing, broken down into tranches where necessary, the quality characteristics of the products covered by the contract, and the undertaking made by the producers to deliver those quantities and qualities;
(d)
the period covered;
(e)
the maximum quantity of raw material delivered which processors undertake to process under the contract in question;
(f)
the price to be paid to the producer organisation for the raw materials, which shall be paid by bank or post office transfer, and the delivery stage to which the price in question applies;
(g)
the compensation payable should either party fail to fulfil its contractual obligations, in particular as regards the payment in full of the price specified in the contract, compliance with time-limits for payment, and the obligation to deliver and accept the minimum and maximum quantities covered by the contract.
3. Member States may adopt additional rules on contracts.
Article 5
Price threshold
1. For each production region concerned, the Member State shall propose to the Commission a place of quotation and the characteristics in terms of size and presentation of the Category I product which serves as a reference for determining the market situation for fresh cauliflowers in the region in question.
2. The Member State shall propose to the Commission, for periods of not less than one month, the average price of the product referred to in paragraph 1 over the previous five marketing years, excluding the highest average yearly rate and the lowest average yearly rate among the five years in question.
3. The Member State shall propose to the Commission a price threshold for each production region, equal to 80 % of the average price referred to in paragraph 2.
4. The Commission shall fix, on the basis of the proposals referred to in paragraphs 1 to 3 and of any other relevant information at its disposal, the price threshold referred to in paragraph 3 and shall communicate it to the Member State concerned.
5. The aid referred to in Article 1 may be paid only once the rate determined in the place of quotation referred to in paragraph 1 of this Article has been below the price threshold fixed pursuant to paragraph 4 for two consecutive quotation days.
It shall cease to be paid the day following the first day on which the rate recorded is once again above or equal to the price threshold fixed pursuant to paragraph 4.
Article 6
Acceptance of advance applications
1. The Member State shall accept the advance application referred to in Article 3 where the conditions laid down in Articles 3 and 4 have been met and it has fixed the place of quotation, characteristics and price threshold and carried out the calculations referred to in Article 5.
2. The Member State shall inform the producer organisation of the terms under which it may be paid the aid. It shall send the producer organisation the price threshold fixed pursuant to Article 5(4) for the production region of the producer organisation concerned, and all the necessary details as regards the place of quotation and the characteristics of the product quoted as referred to in Article 5(1).
Article 7
Notification of deliveries
1. From the beginning of the periods laid down in the second paragraph of Article 3, the producer organisation shall notify the competent authorities of the Member State, no later than 18.00 of the preceding working day, of each delivery to processors holding the contracts referred to in Article 4, including the quantities which will not subsequently be the subject of an application for aid in accordance with Article 8.
This notification shall include the quantity to be delivered, the place and time of delivery and the identification number of the contract relating to the delivery in question. It shall be sent electronically and the authorities to which it is addressed shall keep a record of it for at least three years.
The competent authorities of the Member States concerned may ask for any additional information they consider necessary for a physical check on the deliveries.
2. When each consignment delivered under contracts is accepted at the processing plant, a delivery certificate shall be issued, specifying:
(a)
the date and time of unloading;
(b)
the identification number of the contract to which the consignment relates;
(c)
the net weight.
Delivery certificates shall be prepared in four copies. They shall be signed by the processor or its representative and by the producer organisation or its representative. Each certificate shall bear an identification number.
Processors and producer organisations shall both keep a copy of delivery certificates.
3. The producer organisation shall send the competent authorities of the Member State a communication by e-mail containing the information referred to in paragraph 2, not later than the fifth working day following the week of delivery.
However, where the conditions referred to in the first subparagraph of Article 5(5) are met, the producer organisation shall send the communication referred to in the first subparagraph of this paragraph not later than the first working day following the delivery.
Article 8
Applications for and payment of aid
1. Producer organisations shall present their aid application to the competent authorities of the Member States each quarter, not later than the 15th of the month following the end of the quarter covered by the aid application.
No aid shall be granted if the application is presented beyond this deadline.
2. Each aid application for a particular quarter shall include the following information:
(a)
the name and address of the producer organisation;
(b)
the total quantity of cauliflowers delivered and accepted for processing during the quarter concerned, broken down by processor; the aid application shall specify, within this quantity, the quantity corresponding to deliveries made where the conditions referred to in the first subparagraph of Article 5(5) have been met;
(c)
the minimum quantity referred to in Article 4(2)(c);
(d)
the quantity of cauliflowers withdrawn from the market under Article 23 of Regulation (EC) No 2200/96;
(e)
the marketed quantity of cauliflowers, within the meaning of Article 2(2) of Regulation (EC) No 103/2004;
(f)
the quantity covered by the aid application.
3. Member States shall notify the Commission, not later than the 20th of the month following the end of the quarter concerned, of the total quantities which are the subject of applications for payment, broken down by requesting producer organisation.
4. If the quantities referred to in paragraph 3 are such that the total of the quantities which have benefited from the aid in the course of the previous quarters and of the quantities referred to in paragraph 3 does not exceed 50 000 tonnes, the Commission shall authorise the Member States to pay the aid applied for.
If the total of the quantities which have benefited from the aid in the course of the previous quarters and of the quantities referred to in paragraph 3 exceeds 50 000 tonnes, the Commission shall fix a reduction percentage for the applications, applicable to the quantities referred to in paragraph 3.
5. The aid shall be paid by the competent authorities of the Member States once the provisions referred to in paragraph 4 have been implemented and if these authorities have carried out the checks provided for in Article 9(a) and checked that the aid application tallies with the delivery certificates referred to in Article 7(2).
Article 9
Checks
1. For each producer organisation and each producer, the following checks shall be carried out:
(a)
physical checks, to verify that the quantities tally with the delivery certificates referred to in Article 7(2) and comply with the minimum quality requirements laid down in Article 9, on at least:
(i)
5 % of the quantities delivered for processing where the conditions referred to in the first subparagraph of Article 5(5) have not been met,
(ii)
50 % of the quantities delivered for processing where the conditions referred to in the first subparagraph of Article 5(5) have been met,
(b)
administrative and accounting checks, to verify:
(i)
as regards the producer organisations, that the total quantities of products marketed, the total quantities of products delivered for processing, the total of the delivery certificates referred to in Article 7(2), and the total of the quantities stated in the aid applications tally with the payments received from the processor;
(ii)
as regards the processor, that the quantity of finished products obtained from the raw materials received tallies with the quantities of finished products sold.
2. For the purposes laid down in point (b)(ii) of paragraph 1, processors who sign contracts with producer organisations shall keep the following information for at least three years:
(a)
the total quantities of raw materials received;
(b)
the quantities of product received from producer organisations benefiting from the provisions of this Regulation, broken down by producer organisation;
(c)
the quantities of each finished product obtained from each of the quantities referred to in the first indent;
(d)
the quantities of each finished product in stock at the start and end of the quarter.
Article 10
Recovery and penalties
1. Aid unduly paid to producer organisations, shall be recovered with interest, including that linked to any irregularities found during the checks referred to in Article 9.
The interest rate to be applied shall be calculated in accordance with national legislation and shall not be lower than the interest rate generally applicable to recovery under national rules.
2. Except in cases of obvious error, where irregularities are found in the application of this Regulation, the recipient/applicant shall be required:
(a)
if the aid has already been paid, in addition to recovery as provided for in paragraph 1:
(i)
in cases of fraud, to pay an amount equal to the amount unduly paid;
(ii)
in other cases, to pay 50 % of the amount unduly paid;
(b)
in cases where applications for aid have been submitted under Article 8 but no aid has been paid:
(i)
in cases of fraud, to pay an amount equal to the amount unduly applied for;
(ii)
in other cases, to pay 50 % of the amount unduly applied for;
3. In the event of a false declaration the Member State shall debar the producer organisation concerned from benefiting from the provisions of this Regulation and shall inform the Commission thereof.
4. Sums recovered, with the interest accrued and the amount of the penalty, shall be paid to the responsible paying agency and deducted from expenditure financed by the EAGGF.
Article 11
Informing the Commission
1. Member States shall send the Commission, for each quarter concerned, the following information:
(a)
a list of producer organisations which have submitted an advance application, accepted by the Member State in accordance with Article 6;
(b)
the proposals referred to in Article 5(1), (2) and (3), for each producer organisation concerned;
(c)
the quantities contracted for by the producer organisations concerned under the provisions of Article 4(2)(c) and (e).
This information must reach the Commission not later than 15 days before the start of the quarter concerned.
2. Member States shall inform the Commission immediately where the conditions referred to in the first subparagraph of Article 5(5) are met for a specific producer organisation.
Article 12
Entry into force
This Regulation shall enter into force on the seventh 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, 12 October 2004.
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Commission Regulation (EC) No 462/2002
of 14 March 2002
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 on exportation of common wheat to all third countries with the exclusion of 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 8 to 14 March 2002, 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 15 March 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 March 2002.
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Commission Regulation (EC) No 1117/2001
of 7 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 8 June 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 June 2001.
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Commission Regulation (EC) No 1474/2001
of 18 July 2001
fixing the representative prices and the additional import duties for molasses in the sugar sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the market in sugar(1),
Having regard to 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), and in particular Articles 1(2) and 3(1) thereof,
Whereas:
(1) Regulation (EC) No 1422/95 stipulates that the cif import price for molasses, hereinafter referred to as the "representative price", should be set in accordance with Commission Regulation (EEC) No 785/68(3). That price should be fixed for the standard quality defined in Article 1 of the above Regulation.
(2) The representative price for molasses is calculated at the frontier crossing point into the Community, in this case Amsterdam; that price must be based on the most favourable purchasing opportunities on the world market established on the basis of the quotations or prices on that market adjusted for any deviations from the standard quality. The standard quality for molasses is defined in Regulation (EEC) No 785/68.
(3) When the most favourable purchasing opportunities on the world market are being established, account must be taken of all available information on offers on the world market, on the prices recorded on important third-country markets and on sales concluded in international trade of which the Commission is aware, either directly or through the Member States. Under Article 7 of Regulation (EEC) No 785/68, the Commission may for this purpose take an average of several prices as a basis, provided that this average is representative of actual market trends.
(4) The information must be disregarded if the goods concerned are not of sound and fair marketable quality or if the price quoted in the offer relates only to a small quantity that is not representative of the market. Offer prices which can be regarded as not representative of actual market trends must also be disregarded.
(5) If information on molasses of the standard quality is to be comparable, prices must, depending on the quality of the molasses offered, be increased or reduced in the light of the results achieved by applying Article 6 of Regulation (EEC) No 785/68.
(6) A representative price may be left unchanged by way of exception for a limited period if the offer price which served as a basis for the previous calculation of the representative price is not available to the Commission and if the offer prices which are available and which appear not to be sufficiently representative of actual market trends would entail sudden and considerable changes in the representative price.
(7) Where there is a difference between the trigger price for the product in question and the representative price, additional import duties should be fixed under the conditions set out 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.
(8) Application of these provisions will have the effect of fixing the representative prices and the additional import duties for the products in question as set out in the Annex to this Regulation.
(9) 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 19 July 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 July 2001.
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COUNCIL DECISION of 20 January 1997 amending Decision 96/613/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods (97/100/CFSP)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article J.3 thereof,
Having regard to the general guidelines given by the European Council held at Lisbon on 26 and 27 June 1992,
Having regard to Council Decision 96/613/CFSP of 22 October 1996 amending Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods (1),
Having regard to the Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction, opened for signature in Paris on 13 January 1993, to which all Member States are signatories,
Whereas the lists of goods in Annexes I and IV to Decision 96/613/CFSP should be updated,
HAS DECIDED AS FOLLOWS:
Article 1
1. The list of dual-use goods in Annex I to Decision 96/613/CFSP, referred to in Article 1 of that Decision and in Article 3 (1) of Council Regulation (EC) No 3381/94 of 19 December 1994 setting up a Community regime for the control of exports of dual-use goods (2), shall be amended in accordance with Annex I hereto.
2. Annex IV to Decision 96/613/CFSP, referred to in Article 4 of that Decision and in Article 19 (1) (b) of Regulation (EC) No 3381/94, shall be amended in accordance with Annex II hereto.
Article 2
This Decision shall be published in the Official Journal.
Article 3
This Decision shall enter into force on the day of its publication.
It shall apply from 29 April 1997.
Done at Brussels, 20 January 1997.
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COMMISSION DECISION of 22 July 1993 authorizing Member States to provide for derogations from certain provisions of Council Directive 77/93/EEC in respect of plants of strawberry (Fragaria L.), intended for planting, other than seeds, originating in Argentina
(93/411/EEC)THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (1), as last amended by Directive 93/19/EEC (2), and in particular Article 14 (3) thereof,
Having regard to the request made by Italy, the Netherlands and the United Kingdom,
Whereas, under the provisions of Directive 77/93/EEC, plants of strawberry (Fragaria L.), intended for planting, other than seeds, originating in non-European countires, other than Mediterranean countries, Australia, New Zealand, Canada and the continental States of the USA, may, in principle, not be introduced into the Community;
Whereas, the growing in Argentina of plants of Fragaria L., intended for planting, other than seeds from plants supplied by some Member States, in order to prolongate the growing season of the plants, has become an established practice; whereas these plants are afterwards re-exported to the relevant Member States in order to have them planted for the production of fruits;
Whereas, in respect of the said imports into the Community of the said plants, on the basis of the information supplied by the relevant Member States, it appears that the said strawberry plants can be grown under adequate health conditions in Argentina, and that, at present, there are no sources for the introduction of exotic diseases affecting plants of Fragaria L.;
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
1. Member States are hereby authorized to provide, under the conditions laid down in paragraph 2, for a derogation from Article 4 (1) of Directive 77/93/EEC, with regard to the requirements referred to in Annex III (A) (18) for plants of strawberry (Fragaria L.), intended for planting, other than seeds, originating in Argentina.
2. The following conditions shall be satisfied:
(a) the plants shall be intended for fruit production within the Community and shall have been:
(i) produced exclusively from mother plants, certified under an approved certification scheme of a Member State and imported from that Member State;
(ii) grown on land which is:
- situated in an area isolated from commercial strawberry production,
- situated at least 1 km from the nearest crop of strawberry plants, for fruit or runner production and which do not satisfy the conditions of this Decision,
- situated at least 200 m from any other plants of the genus Fragaria which do not satisfy the conditions of this Decision, and
- prior to planting and in the period after the previous crop was removed from the land, tested by appropriate methods or treated to ensure freedom from soil infesting harmful organisms;
(iii) officially inspected by the Plant Protection Service of Argentina, at least three times during the growing season and prior to export for presence of harmful organisms listed in part A of Annexes I and II to Directive 77/93/EEC and any other harmful organism which is not known to occur in the Community. Infested or infected plants shall be removed. The remaining plants shall be effectively treated;
(iv) found free, in the inspections referred to in point (iii), from the harmful organisms referred to in point (iii);
(v) prior to export:
- shaken free from soil or other growing medium,
- cleaned (i.e. free from plant debris) and free from flowers and fruits;
(b) the plants intended for the Community shall be accompanied by a phytosanitary certificate issued in Argentina in accordance with Article 7 of Directive 77/93/EEC, on the basis of the examination laid down in Article 6 thereof relating to the conditions laid down therein, in particular freedom from the harmful organisms mentioned in (a) (iii), as well as to the requirements specified in (a), (i), (ii), (iv) and (v).
The certificate shall state:
- the specification of the last treatment applied, prior to export,
- under 'Additional Declaration', the indicaton 'this consignment meets the conditions laid down in Decision 93/411/EEC';
(c) (i) the inspections required pursuant to Article 12 of Directive 77/93/EEC shall be made by the responsible official bodies referred to in the said Directive, with the assistance of the experts referred to in Article 19a thereof, under the procedure laid down therein;
(ii) the plants shall be planted only at premises which have been notified to the said responsible official bodies;
(iii) prior to introduction into a Member State, the importer shall notify each introduction sufficiently in advance to the said responsible official bodies in the Member State concerned, indicating:
- the type of material,
- the quantity,
- the declared date of import,
- the premises of destination of the plants referred to in (ii).
He shall be officially informed, prior to the introduction, of the conditions laid down in (a), (b), (c) (i) and (c) (ii);
(iv) in the growing period following importation, a suitable proportion of the plants shall be inspected by the said responsible official bodies, at appropriate times, at the premises referred to in (ii).
Article 2
Member States shall inform the other Member States and the Commission of any use made of the authorization. They shall provide the Commission and the other Member States, before 1 November of each year, with the information on amounts imported pursuant to this Decision and with a detailed technical report of the official examination referred to in Article 1 (2) (c) (i) and (iv).
Article 3
Without prejudice to the provisions laid down in Article 14 (5) of Directive 77/93/EEC, the Member States concerned shall notify the Commission and the other Member States of all cases of consignments introduced pursuant to this Decision which do not comply with the conditions laid down herein.
Article 4
This Decision shall apply during the period between 1 June 1993 and 31 December 1994. It shall be revoked if it is established that the conditions laid down in Article 1 (2) are not sufficient to prevent the introduction of harmful organisms or have not been complied with.
Article 5
This Decision is addressed to the Member States.
Done at Brussels, 22 July 1993.
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Commission Decision
of 20 April 2004
amending Decision 2003/526/EC as regards the inclusion of Slovakia amongst the Member States to which certain disease control measures apply with regard to classical swine fever
(notified under document number C(2004) 1389)
(Text with EEA relevance)
(2004/375/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, and in particular Article 2(3) thereof,
Having regard to the Act of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia(1), and in particular Article 57 thereof,
Having regard to Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market(2), and in particular Article 10(4) thereof,
Whereas:
(1) In response to classical swine fever in certain bordering parts of Member States, the Commission has adopted, inter alia, Decision 2003/526/EC(3) which established some additional disease control measures concerning that disease.
(2) The occurrence of classical swine fever in feral pigs in certain areas of Slovakia makes Community measures necessary as regards this new Member State. Those measures should take into account that the concerned areas of Slovakia are not bordering infected areas of other Member States.
(3) The measures laid down in this Decision should apply without prejudice to the eradication plan to be implemented in the classical swine fever infected area of Slovakia pursuant to Article 16 of Council Directive 2001/89/EC of 23 October 2001 on Community measures for the control of classical swine fever(4).
(4) In the light of the current disease situation in Slovakia, it is appropriate to include Slovakia amongst the Member States to which certain disease control measures apply with regard to classical swine fever.
(5) Decision 2003/526/EC should therefore be amended accordingly.
(6) The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Decision 2003/526/EC is amended as follows:
1. in Article 2(1), the introductory phrase is replaced by the following:
"1. Germany, France, Luxembourg and Slovakia (hereinafter: 'the Member States concerned') shall ensure that no pigs are dispatched from those Member States unless the pigs:"
2. in Article 6(1), the introductory phrase is replaced by the following:
"1. By way of derogation from Article 1(1) and subject to the approval of the Member State of destination, Germany, France, and Luxembourg may authorise the dispatch of pigs proceeding from holdings located within the areas listed in part I of the Annex to other holdings or to slaughterhouses located within the areas listed in part I of the Annex of another Member State, provided that the pigs come from a holding where:"
3. the Annex is replaced by the text Annex to this Decision.
Article 2
This Decision shall apply subject to and as from the date of the entry into force of the Treaty of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 20 April 2004.
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COMMISSION REGULATION (EC) No 957/1999
of 6 May 1999
on the sale by tender of beef held by certain intervention agencies
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 organisation of the market in beef and veal(1), as last amended by Regulation (EC) No 1633/98(2), and in particular Article 7(3) thereof,
Whereas the application of intervention measures in respect of beef has created stocks in several Member States; whereas, in order to prevent an excessive prolongation of storage, part of these stocks should be sold by tender;
Whereas the sale should be made subject to the rules laid down by Commission Regulation (EEC) No 2173/79(3), as last amended by Regulation (EC) No 2417/95(4), subject to certain special exceptions which are necessary;
Whereas, with a view to ensuring a regular and uniform tendering procedure, measures should be taken in addition to those laid down in Article 8(1) of Regulation (EEC) No 2173/79;
Whereas provision should be made for derogations from Article 8(2)(b) of Regulation (EEC) No 2173/79, in view of the administrative difficulties which application of this point creates in the Member States concerned;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for beef and veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. The sale shall take place of:
- approximately 15 tonnes of bone-in forequarters held by the Irish intervention agency,
- approximately 665 tonnes of deboned beef held by the Irish intervention agency,
- approximately 6420 tonnes of boneless beef held by the United Kingdom intervention agency,
- approximately 6 tonnes of boneless beef held by the Danish intervention agency.
Detailed information concerning quantities is given in Annex I.
2. Subject to the provisions of this Regulation the products referred to in paragraph 1 shall be sold in accordance with Regulation (EEC) No 2173/79, in particular Titles II and III thereof.
Article 2
1. Notwithstanding Articles 6 and 7 of Regulation (EEC) No 2173/79, the provisions of and Annexes to this Regulation shall serve as a general notice of invitation to tender.
The intervention agencies concerned shall draw up a notice of invitation to tender which shall include the following:
(a) the quantities of beef offered for sale; and
(b) the deadline and place for submitting tenders.
2. Interested parties may obtain the details of the quantities available and the places where the products are stored from the addresses listed in Annex II to this Regulation. The intervention agencies shall, in addition, display the notice referred to in paragraph 1 at their head offices and may publish it in other ways.
3. For each product mentioned in Annex I the intervention agencies concerned shall sell first the meat which has been stored the longest.
4. Only tenders which reach the intervention agencies concerned by 12 noon on 17 May 1999 shall be considered.
5. Notwithstanding 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 4.
6. Notwithstanding Article 8(2)(b) of Regulation (EEC) No 2173/79, tenders shall not indicate in which cold store or stores the products are held.
Article 3
1. Member States shall provide the Commission with information concerning the tenders received not later than the working day following the deadline set for the submission of tenders.
2. After the tenders received have been examined a minimum selling price shall be set for each product or the sale will not proceed.
Article 4
The security provided for in Article 15(1) of Regulation (EEC) No 2173/79 shall be EUR 120 per tonne.
Article 5
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, 6 May 1999.
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COMMISSION REGULATION (EC) No 2543/97 of 15 December 1997 amending Regulation (EEC) No 3201/90 laying down detailed rules for the description and presentation of wines and grape musts
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (1), as last amended by Regulation (EC) No 2087/97 (2), and in particular Article 72 (5) thereof,
Whereas Council Regulation (EEC) No 2392/89 (3), as last amended by Regulation (EC) No 1427/96 (4), lays down general rules for the description and presentation of wines and grape musts;
Whereas Commission Regulation (EEC) No 3201/90 (5), as last amended by Regulation (EC) No 1472/97 (6), lays down detailed rules for the description and presentation of wines and grape musts;
Whereas Austrian legislation recognizes a series of supplementary traditional terms used for quality wines psr from that country; whereas it should be possible for those terms to be used optionally on labels for those wines and so they should be included in Article 3 (3) (h);
Whereas certain varieties of vine or their synonyms use in their designations geographical indications to which they are not entitled, apart from to the name of the variety; whereas, in order to avoid the incorrect use of these geographical names and hence confusion to consumers, it is necessary to ensure that no reference to that origin is authorized;
Whereas, in view of a request from South Africa, there should be provision for wines from that country derived from only two varieties to be able to bear the name of those two varieties when they are marketed in the Community;
Whereas terms relating to a method of producing quality wines psr recognized in Spain and Italy have been notified by those two countries; whereas, so that those terms may be used optionally on labels for wine, they should be included in Article 14 (3) (c) and (d);
Whereas references to the ageing of wines in the case of quality wines produced in a specified region (psr) have been recognized in Austria; whereas, so that those references can be used optionally on labels for those wines, they should be included in Article 17 (2) (c) (i);
Whereas Germany and Italy have requested that new synonyms traditionally used in those countries should be added to Annex III to Regulation (EEC) No 3201/90; whereas those requests should be accepted;
Whereas Argentina and Romania have requested adjustments to Annex IV to Regulation (EEC) No 3201/90 concerning the list of new varieties of vine used in those countries; whereas those requests should be accepted;
Whereas, although information on the natural conditions for growing the vines that have produced the wine should appear on a label outside the field of vision encompassing the label containing the compulsory information, there should be a derogation from this general rule so that certain references traditionally used in Germany may appear on the main label;
Whereas the Federal Republic of Yugoslavia and Zimbabwe have requested that those countries should be added to the list of non-member countries in Annexes I, II and IV to Regulation (EEC) No 3201/90; whereas that request should be accepted;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 3201/90 is hereby amended as follows:
1. the following point (h) is added to Article 3 (3):
'(h) for Austrian quality wines psr:
- "Selection",
- "Selektion",
- "Auswahl",
- "Ausstich",
- "Classic",
- "Classique",
- "Klassik",
- "Erste Wahl",
- "Tradition",
- "Hausmarke", or "Jubiläumswein",
including when used in conjunction with "Alte" or "Kellermeister".`;
2. the following paragraph 5 is added to Article 12:
'5. Where the name of a vine variety is composed of or includes a geographical indication to which the wine is not entitled, apart from the name of that variety no other reference to that geographical indication in any form is permitted.`;
3. in Article 13 (2) (a), 'South Africa` is added after 'Argentina`;
4. in Article 14 (3):
1. in point (c)
(1) the following indent is added:
'- "Strohwein",`;
(2) the following sentence is added to the last subparagraph:
'The term "Strohwein" may be used only for quality wines psr from the province of Bolzano.`;
2. in point (d):
(1) the following indents are added:
'- "Fondillón",
- "Rancio",`;
(2) the following subparagraph is added:
'The term "Fondillón" is reserved for Alicante quality wines psr.`;
5. in the first subparagraph of Article 17 (2):
1. 'Notwithstanding paragraph 1,` is replaced by 'Notwithstanding paragraphs 1 and 1a,`;
2. the following indent is added to point (b):
'- "Steillagenwein", "Steillage", "Terrassenlagenwein" and "Terrassenlage" when they are used to designate a German table wine or quality wine psr in accordance with the German provisions concerning their use,`;
3. the following indent is added to point (c) (i):
'- "Barrique" or "im Barrique gereift" for Austrian quality wines psr provided that the Austrian provisions regarding the use of these terms are observed;`
6. Annexes I, II, III and IV are amended in accordance with the Annex to this Regulation.
Article 2
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, 15 December 1997.
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*****
COMMISSION REGULATION (EEC) No 1090/88
of 26 April 1988
laying down precautionary measures in the fruit and vegetables sector, with respect to cauliflowers
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 5 and 155 thereof,
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 824/88 (2),
Whereas, pursuant to Article 16 (1) of Regulation (EEC) No 1035/72, a basic price and a buying-in price must be fixed for each marketing year for each of the products listed in Annex II to the said Regulation; whereas the products in question, harvested in a given production year, are marketed, as regards cauliflowers, from May to April of the following year; whereas, in the particular case of cauliflowers, the Council has not yet adopted the basic price and the buying-in price applicable from 1 May 1988; whereas the Commission, by virtue of the powers conferred on it by the Treaty, must take the necessary precautionary measures to ensure that the common agricultural policy continues to operate in the fruit and vegetables sector in question; whereas these measures are adopted as a precaution and without prejudice to the Council's price decisions for 1988/89;
Whereas, under these precautionary measures, the continuity of the intervention arrangements provided for in Articles 15 and 19 of the abovementioned Regulation (EEC) No 1035/72 must be ensured; whereas, for those purposes, the amounts to be used in calculating the prices at which the abovementioned intervention operations take place should be fixed for May 1988; whereas the amounts to be used correspond to the basic and buying-in prices fixed for the 1987/88 marketing year;
Whereas Spain during the first phase and Portugal during the first stage are authorized to maintain, in the fruit and vegetables sector, the rules in force under the previous national arrangements for the organization of their domestic agricultural markets, under the conditions laid down in Articles 133 to 135 and 262 to 265, respectively, of the Act of Accession; whereas, therefore, the amounts fixed in this Regulation are applicable only in the Community as constituted at 31 December 1985,
HAS ADOPTED THIS REGULATION:
Article 1
The intervention operations provided for in Articles 15 and 19 of Regulation (EEC) No 1035/72 shall be carried out, as regards cauliflowers, during May 1988 at prices determined on the basis of the following amounts:
- basic price: 30,96 ECU/100 kg net,
- buying-in price: 13,47 ECU/100 kg net.
These amounts refer to trimmed cauliflowers of quality grade I, packaged.
Those amounts do not take account of the cost of the packaging in which the product is presented.
Article 2
This Regulation shall enter into force on 1 May 1988.
The provisions of this Regulation shall apply without prejudice to the decisions to be adopted by the Council in accordance with Article 16 (1) of Regulation (EEC) No 1035/72.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 April 1988.
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COMMISSION REGULATION (EEC) No 910/92 of 8 April 1992 re-establishing the levying of customs duties on products of category 156 (order No 42.1560), originating in China, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3832/90 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3832/90 of 20 December 1990 applying generalized tariff preferences for 1991 in respect of textile products originating in developing countries (1), extended into 1992 by Council Regulation (EEC) No 3587/91 (2) and in particular Article 12 thereof,
Whereas Article 10 of Regulation (EEC) No 3832/90 provides that preferential tariff treatment shall be accorded for 1992 for each category of products subjected in Annexes I and II thereto to individual ceilings, within the limits of the quantities specified in column 8 of Annex I and column 7 of Annex II, in respect of certain or each of the countries or territories of origin referred to in column 5 of the same Annexes;
Whereas Article 11 of the abovementioned Regulation provides that the levying of customs duties may be re-established at any time in respect of imports of the products in question once the relevant individual ceilings have been reached at Community level;
Whereas, in respect of products of category 156 (order No 42.1560), originating in China, the relevant ceiling amounts to 4 tonnes;
Whereas on 19 March 1992 imports of the products in question into the Community, originating in China, a country covered by preferential tariff arrangements, reached and were charged against that ceiling;
Whereas it is appropriate to re-establish the levying of customs duties for the products in question with regard to China,
HAS ADOPTED THIS REGULATION:
Article 1
As from 13 April 1992 the levying of customs duties for 1992, suspended pursuant to Regulation (EEC) No 3832/90, shall be re-established in respect of the following products, imported into the Community and originating in China:
Order No Category
(unit) CN code Description 42.1560 156
(tonnes) 6106 90 30
ex 6110 90 90 Blouses and pullovers of silk, noil or other waste silk for women, girls and infants, knitted or crocheted
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 April 1992.
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COUNCIL REGULATION (EEC) No 1525/76 of 24 June 1976 concluding the Agreement in the form of an exchange of letters relating to Article 23 of the Cooperation Agreement and Article 16 of the Interim Agreement between the European Economic Community and the Kingdom of Morocco and concerning the import into the Community of bran and sharps originating in Morocco
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the recommendation from the Commission,
Whereas the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco was signed on 27 April 1976;
Whereas the Interim Agreement (1) on the advance implementation of the trade provisions of the Cooperation Agreement signed on the same day enters into force on 1 July 1976;
Whereas the Agreement in the form of an exchange of letters relating to Article 23 of the Cooperation Agreement and Article 16 of the Interim Agreement between the European Economic Community and the Kingdom of Morocco and concerning the import into the Community of bran and sharps originating in Morocco should be concluded,
HAS ADOPTED THIS REGULATION:
Article 1
The Agreement in the form of an exchange of letters relating to Article 23 of the Cooperation Agreement and Article 16 of the Interim Agreement between the European Economic Community and the Kingdom of Morocco and concerning the import into the Community of bran and sharps originating in Morocco is hereby concluded on behalf of the Community.
The text of the Agreement is annexed to this Regulation.
Article 2
The President of the Council is hereby authorized to designate the person empowered to sign the Agreement for the purpose of binding the Community (2).
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, 24 June 1976.
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COMMISSION DECISION
of 30 April 2008
on State aid C 21/07 (ex N 578/06) which Hungary is planning to implement in favour of IBIDEN Hungary Gyártó Kft.
(notified under document number C(2008) 1342)
(Only the Hungarian text is authentic)
(Text with EEA relevance)
(2008/830/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the provisions cited above (1) and having regard to their comments,
Whereas:
1. PROCEDURE
(1)
By electronic notification dated 30 August 2006, registered the same day at the Commission, the Hungarian authorities notified a case of application of existing regional aid schemes in favour of an initial investment project by IBIDEN Hungary Gyártó Kft. The notification was made pursuant to the individual notification requirement laid down in paragraph 24 of the Multisectoral Framework on regional aid for large investments projects 2002 (2) (hereafter: MSF 2002).
(2)
The Commission requested additional information by letters of 13 October 2006 (D/58881) and 13 March 2007 (D/51161).
(3)
By letters registered at the Commission on 14 November 2006 (A/39085), 3 January 2007 (A/30004), 15 January 2007 (A/30441) and 27 March 2007 (A/32641) the Hungarian authorities asked the Commission to extend the deadline for providing additional information, which the Commission accepted.
(4)
The Hungarian authorities submitted additional information by letters registered at the Commission on 31 January 2007 (A/30990) and 15 May 2007 (A/34072).
(5)
On 11 December 2006 and on 25 April 2007, meetings were held between the Hungarian authorities and the Commission services where also representatives of IBIDEN Hungary Gyártó Kft. were present.
(6)
By letter dated 10 July 2007, the Commission informed Hungary that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the aid.
(7)
The Commission Decision to initiate the procedure was published in the Official Journal of the European Union (3). The Commission invited interested parties to submit their comments on the aid measure.
(8)
The Commission received four comments from interested parties:
(a)
by letter dated 25 October 2007, registered at the Commission on the same day (A/38842);
(b)
by letter dated 22 November 2007, registered at the Commission on 24 November 2007 (A/39732);
(c)
by letter dated 23 November 2007, registered at the Commission on the same day (A/39711);
(d)
by letter dated 26 November 2007, registered at the Commission on 27 November 2007 (A/39740).
(9)
By letter dated 4 December 2007 (D/54826), the Commission forwarded the observations received to Hungary which was given the opportunity to react.
(10)
The opinion from Hungary to the comments of interested parties was received by letter dated 4 January 2008, registered at the Commission on the same day (A/151).
2. DETAILED DESCRIPTION OF THE AID
2.1. Objective of the measure
(11)
The Hungarian authorities intend to promote regional development by providing regional investment aid to IBIDEN Hungary Gyártó Kft. for the setting up of a new manufacturing plant for the production of ceramic substrates for Diesel Particulate Filters in the Dunavarsány Industrial Park, in the region of Central Hungary (Pest County), which is an assisted area in accordance with Article 87(3)(a) of the EC Treaty with an aid intensity ceiling of 40 % Net Grant Equivalent (NGE) for the period 2004-2006 (4).
2.2. The beneficiary
(12)
The aid beneficiary is ‘IBIDEN Hungary Gyártó Kft.’ (hereinafter: IBIDEN HU). The aided project aims to set up the second production plant within IBIDEN’s ceramics division of ceramic substrates for Diesel Particulate Filters in the European Union, besides IBIDEN DPF France S.A.S. in France (set up in 2001).
(13)
IBIDEN HU was established on 5 May 2004 by IBIDEN European Holdings B.V. (The Netherlands) and IBIDEN Co., Ltd. (Japan). IBIDEN European Holdings B.V. is 100 % owned by IBIDEN Co., Ltd., which in turn is a joint-stock company with many proprietors: companies (e.g. banks) and private entities. IBIDEN HU is 99 % owned by IBIDEN European Holdings B.V. and 1 % by IBIDEN Co., Ltd. IBIDEN DPF France S.A.S. has been owned by IBIDEN European Holdings B.V. by 100 % since the end of 2005.
(14)
The parent company IBIDEN Co., Ltd. is a multinational company that was established in 1912, as a company generating electric power, and has its headquarters in Gifu, Japan. Its operations can be divided into five segments whose shares in the 2005 annual sales turnover were the following: 50 % for the electronics division, 22 % for the ceramics division, 16 % for the housing materials division, 4 % for the construction materials division and 8 % for other small divisions (such as oil products, information services, synthetic resin, agriculture, livestock and fishery processing departments). According to the Annual Report of 2006 (5), the IBIDEN Group consists of 47 subsidiaries and one affiliated company, which is not active in the ceramic sector. In 2006 consolidated net sales were Yen 319,0 billion, operating income was Yen 43,6 billion, and net income was Yen 27,2 billion. In the same year, the group counted 10 115 employees in its business representations and factories all over the world.
2.3. Investment project
2.3.1. The new investment project of IBIDEN HU in Dunavarsány
(15)
The notification concerns the second phase of an investment project, which aims to set up a plant to produce ceramic substrates for Diesel Particulate Filters in the Dunavarsány Industrial Park.
(16)
By letter dated 1 April 2005 the Hungarian authorities, in line with paragraph 36 of the MSF 2002 (6), informed the Commission about the State aid granted to IBIDEN HU for the first phase of the investment project.
(17)
The Hungarian authorities indicate that the two phases of the investment by IBIDEN HU in the Dunavarsány Industrial Park have to be considered as a single investment project within the meaning of paragraph 49 of the MSF 2002: the two investment phases concern the same production site, the same company, the same product and they were started within a period of three years.
(18)
According to the information provided by the Hungarian authorities on the two investment phases, the production of ceramic substrates for Diesel Particulate Filters will take place in two newly built buildings of 24 000 m2 and 30 900 m2 respectively in the Dunavarsány Industrial Park. By 2007, four production lines will be installed in building I and five lines will be installed in building II.
(19)
By 2007 the project will create a total of 1 100 new direct jobs in Dunavarsány.
(20)
The Hungarian authorities confirm that no other products than those concerned by the investment project will be produced at the aided facility for five years after the completion of the investment.
(21)
In addition, the Hungarian authorities confirm that the beneficiary accepted to maintain the investment at the site for a minimum period of five years after the completion of the investment.
2.3.2. Timing of IBIDEN HU investment project in Dunavarsány
(22)
The works on the investment project have already started in October 2004. Production linked to the project started in August 2005 in building I and in May 2006 in building II. Full capacity linked to the project was expected to be reached in April 2007. Table I provides further details on the timing of the project:
Table I
Timing of the investment project
Start of project
Start of production
End of project
Full production capacity
Phase I
6.10.2004
1.8.2005
1.1.2006
1.5.2006
(1,2 million units annually)
Phase II
20.6.2005
3.5.2006
31.3.2007
1.4.2007
(a further 1,2 million units annually)
2.4. Costs of the investment project
(23)
The total eligible investment costs of the project are HUF 47 570 933 882 (EUR 190,83 million) in nominal value. In present value this amount is HUF 41 953 072 670 (EUR 168,30 million) (7). Table II provides a breakdown of the total eligible costs by year and category.
Table II
Eligible investment costs (Phases I and II) nominal value in million HUF
2004
2005
2006
2007
Total
Land
[…] (8)
[…]
[…]
[…]
[…]
Infrastructure
[…]
[…]
[…]
[…]
[…]
Buildings
[…]
[…]
[…]
[…]
[…]
Utility
[…]
[…]
[…]
[…]
[…]
Machinery
[…]
[…]
[…]
[…]
[…]
Eligible Investment
[…]
[…]
[…]
[…]
47 571
Phase I
Phase II
Phase I
Phase II
Phase I
Phase II
Phase I
Phase II
[…]
[…]
[…]
[…]
[…]
[…]
[…]
[…]
2.5. Financing of the project
(24)
The Hungarian authorities confirmed that the own contribution by the beneficiary exceeds 25 % of the eligible costs, which is free of any public support.
2.6. Legal basis
(25)
The financial support to IBIDEN HU is granted on the basis of the following two legal basis:
(a)
The Ministry of Economy and Transport will give a grant on the basis of the scheme ‘HU 1/2003 - Earmarked Scheme for Investment Promotion’ (9). This scheme has as its legal basis ‘Decree 1/2001 (I.5.) of the Minister of Economy on the Earmarked Scheme for Entrepreneurship’ and ‘Decree 19/2004 (II. 27.) of the Minister of Economy and Transport on Detailed Rules of Certain Aid Schemes of the Ministry’.
(b)
The Ministry of Finance will grant a tax allowance based on the scheme ‘Development Tax Benefit’ (10). This scheme was established by ‘Act LXXXI of 1996 on Corporate Tax and Dividend Tax’ and by ‘Government Decree 275/2003 (XII.24.) on the Development Tax Benefit’.
2.7. Aid amount and aid intensity
(26)
The total nominal aid amount is HUF 15 591 223 750 (EUR 62,55 million), which corresponds to HUF 9 793 809 933 (EUR 39,29 million) in present value. On the basis of the eligible costs indicated in paragraph 23 above, this corresponds to an aid intensity of 22,44 % in net grant equivalent (NGE) (11).
(27)
The aid is being provided in the form of the following two aid instruments. First, the Ministry of Economy and Transport is making a grant with a total amount in nominal value of HUF 3 592 000 000 (EUR 14,41 million) dispersed over the years of 2005 till 2007. Second, the Ministry of Finance is providing a corporate tax allowance (12) estimated at HUF 11 999 223 750 (EUR 48,14 million) in nominal value disbursed over the years 2007 until 2016. The grant in present value amounts to HUF 3 118 450 763 (EUR 12,51 million) and the tax allowance in present value is HUF 6 675 359 170 (EUR 26,78 million).
(28)
The Hungarian authorities specified that aid in the amount of HUF 7 411 828 735 (EUR 29,73 million) in present value (HUF 11 745 422 640 or EUR 47,12 million in nominal value) had already been granted to IBIDEN HU on the basis of the existing regional aid schemes (13) up to the individual notification threshold established in paragraph 24 of the MSF 2002. For the first phase of the investment project the Ministry of Finance granted aid on 25 February 2005 in the amount of HUF 4 832 595 058 (EUR 19,39 million) in present value (HUF 8 773 422 640 or EUR 35,20 million in nominal value) and the Ministry of Economy and Transport granted aid on 3 March 2005 in the amount of HUF 1 875 354 000 (EUR 7,52 million) in present value (HUF 2 142 000 000 or EUR 8,60 million in nominal value). For the second phase of the investment the Ministry of Economy and Transport granted aid in the amount of HUF 703 879 677 (EUR 2,82 million) in present value (HUF 830 000 000 or EUR 3,33 million in nominal value) on 22 December 2006.
(29)
Thus, according to the Hungarian authorities, the aid amount, which is subject to the notification, is the difference between the total amount of aid and the support already granted, i.e. HUF 2 381 981 198 (EUR 9,56 million) in present value (in nominal value this amount is HUF 3 845 801 110 or EUR 15,43 million).
(30)
Regarding the remaining aid amount to be granted for the second phase of the investment, the Hungarian authorities have suspended the decision-making process until the decision of the European Commission. Thus, the authorisation of the notified aid is subject to Commission approval.
(31)
The Hungarian authorities confirm that the aid for the project cannot be cumulated with aid received for the same eligible costs from other local, regional, national or Community sources.
(32)
The Hungarian authorities confirm that the aid applications for the first phase of the investment project were submitted on 5 December 2003 at the Ministry of Economy and Transport and on 16 September 2004 at the Ministry of Finance. The aid applications for the second phase of the investment project were submitted on 28 March 2005 and on 31 May 2005 respectively. Therefore, the respective aid applications had been made before work started on the first phase on the project on 6 October 2004 and on the second phase of the project on 20 June 2005.
2.8. General commitments
(33)
The Hungarian authorities committed themselves to submit to the Commission:
-
within two months of granting the aid, a copy of the signed aid/investment contract(s) between the granting authority and the beneficiary;
-
on a five-yearly basis, starting from the approval of the aid by the Commission, an intermediary report (including information on the aid amounts being paid, on the execution of the aid contract and on any other investment projects started at the same establishment/plant);
-
within six months after payment of the last tranche of the aid, based on the notified payment schedule, a detailed final report.
3. GROUNDS FOR INITIATING THE FORMAL INVESTIGATION PROCEDURE
(34)
The notified project concerns the production of ‘ceramic substrates for diesel particulate filters’ (hereafter: DPF), which are installed in diesel passenger cars and light duty trucks. The ceramic part, which is produced by IBIDEN HU, is an intermediate product (TIER 3), which is then sold under market conditions to independent companies, which apply a precious metal coating of the substrate to form a coated DPF (TIER 2). The coated DPFs are then sold to exhaust manifold producers (TIER 1), which are the direct suppliers of car assembly factories.
(35)
The Commission, in the Decision to initiate the formal investigation procedure indicated that the Hungarian authorities suggested a broad definition of the relevant market, covering both key parts of the exhaust gas treatment system of diesel engine vehicles, namely Diesel Oxidation Catalysts (hereafter: DOC), which treat gases (i.e. CO and HC) and to a certain extent the soluble organic fraction (SOF) of particulate matter (PM); and Diesel Particulate Filters (hereafter: DPF) (14), which are effective in treating the insoluble fraction of particulate matter, i.e. soot. They argue these devices are very similar to each other, since both aim to reduce harmful substances from emissions, and therefore belong to the same relevant market. They also argue that the production processes and technologies to manufacture the two components are very similar.
(36)
The Commission, in the Decision to initiate the formal investigation procedure in the present case, noted that it had doubts on the compatibility of the aid with the common market based on Article 87(3)(a) of the EC Treaty and on the MSF 2002. The Commission also noted that the approach of the Hungarian authorities with regards to the relevant market was also not supported by the two independent market studies (the study by Frost & Sullivan Ltd (F&S) (15) and by AVL List GMBH (AVL)) (16), which were submitted by the Hungarian authorities.
(37)
In particular, the Commission expressed doubts whether DOC and DPF can be considered as substitutes, which belong to the same relevant product market of after-treatment devices and, at the moment of the initiation of the formal investigation procedure, the Commission considered that the relevant product market was narrower and covered only substrates of Diesel Particulate Filters to be fitted in diesel exhaust systems.
(38)
First, the Commission noted that the DPF’s main function is to treat solid inorganic and insoluble particulate matter (i.e. soot), while the DOC aims to clean hazardous gases and the soluble organic fraction (SOF) contained in particulate matter, without being able to collect soot. While it is true that there is some overlap between the two functions insofar as the coated DPF treats as well harmful gases to a certain extent, this does not eliminate the need for a separate DOC in the exhaust gas treatment system. Both components will continue to co-exist and have to be installed together in the period to be considered (i.e. until 2008). For future Euro 5-6 technologies DOCs will continue to be used for oxidation of CO, HC and SOF. Thus, the Commission noted that there appeared to be no substitutability on the demand side, as these are two separate and complementing devices.
(39)
The Commission also noted in the decision to initiate the formal investigation procedure that, according to one of the studies, a truly multi-functional product, which integrates on one ceramic monolith the functions of both DOC and DPF, had recently been introduced by the company Eberspächer and it was used in the Volkswagen Passat. However, the Commission doubted whether IBIDEN HU’s product is suitable for such a complete multi-functionality.
(40)
Second, the Commission noted that the substitutability on the supply side was also questionable. No concrete evidence of substrates for DOCs producers, which are also capable of producing substrates for DPFs with the same equipment without major additional investment costs, or vice versa, were provided. Furthermore, substitutability is also doubtful because the price of the DPF is around four times higher than the price of the DOC.
(41)
Finally, the Commission observed that while the aid appears to meet the conditions of the Guidelines on national regional aid 1998 (17), the Commission had doubts whether the market share of the beneficiary in the relevant market is below 25 % as required by paragraph 24(a) of the MSF 2002. The market studies submitted by the Hungarian authorities indicate that the share in volume terms of IBIDEN in the DPF market in Europe substantially exceeds the 25 % threshold both before and after the investment. Thus the condition under paragraph 24(a) of MSF 2002 is not respected if the DPF is regarded as the relevant market. However, in the combined market of the DPF and DOC, which is considered as relevant by the Hungarian authorities, IBIDEN’s market share would remain below 25 % both before and after the investment in volume terms.
4. COMMENTS FROM INTERESTED PARTIES
(42)
In response to the publication of its Decision to open the formal investigation procedure in the Official Journal of the European Union, the Commission received observations by the following interested parties:
(a)
the aid beneficiary IBIDEN Hungary Gyártó Kft.;
(b)
Aerosol & Particle Technology Laboratory, Thermi-Thessaloniki, Greece, a centre for research and technology;
(c)
Saint-Gobain Industrie Keramik Rödental GmbH, Rödental, Germany, a competitor (hereafter: Saint-Gobain);
(d)
an interested party, which, pursuant to Article 6(2) of the Council Regulation (EC) No 659/1999 (18), requested the Commission to withhold its identity.
(43)
The arguments put forward by the above-mentioned interested parties can be summarised as follows.
4.1. Relevant product market according to IBIDEN HU and Aerosol & Particle Technology Laboratory
(44)
The aid beneficiary IBIDEN HU and Aerosol & Particle Technology Laboratory are in favour of taking a broad market definition, which would cover all components (mainly DOC and DPF) in the exhaust gas treatment system of diesel engine vehicles. They observe that DOC and DPF are very similar to each other, since both aim to reduce harmful substances from emissions, and therefore belong to the same relevant product market.
(45)
According to this opinion, both DOC and DPF would be regarded as PM removal components, although IBIDEN HU acknowledges that DOC is ineffective in treating the insoluble part of PM (i.e. soot). The interested parties argue that due to the fact that IBIDEN HU’s product is able to filter HC and CO in addition to its main function of filtering soot, it belongs to the same market as DOC. It is up to car manufacturers to decide whether to construct the exhaust gas treatment part from independent components for detoxifying gaseous harmful substances and for treating the particle substances or to use the multifunctional component.
(46)
Nevertheless, IBIDEN HU acknowledges in its submission that in spite of the additional function of IBIDEN HU’s DPF that helps cleaning gases (HC and CO) more efficiently, the combined use of DPF and DOC is necessary to ensure compliance with emission regulations. A high quality, well-developed DPF can reduce the size and sophistication of the DOC that car manufacturers need to install in their cars, thus, the DPF has had a huge impact on the DOC, and vice versa, which means that as one device becomes more sophisticated, the other device has to correspond to these changes.
(47)
Both IBIDEN HU and Aerosol & Particle Technology Laboratory refer to a trend in the technological development of DOC and DPF leading to a new generation of filters, which could incorporate the advantages, characteristics and former technologies in one unit, thereby combining the DOC and DPF on the same monolith substrate (for instance, Volkswagen has already introduced fourth generation after-treatment components to its Passat model, using just one DPF with no DOC). IBIDEN HU however indicated that it currently produces the ‘third generation’ (19) DPF and carries out continuous product improvement so that it can be converted into the ‘fourth generation’ DPF capable of fully incorporating the functionalities of the DOC.
(48)
IBIDEN HU also indicated that, although the Commission in the Decision to open the formal investigation procedure suggests the opposite, in reality the price of IBIDEN’s product is not four times more than the price of a DOC. IBIDEN HU manufactures a semi-finished product, and therefore the final product (coated DPF) is much more expensive than IBIDEN HU’s semi-finished product. The current industry experience shows that the market price of the device after the coating, canning and application of the mat is 2,5 times higher than that of the substrate, the product of IBIDEN Group: for example, in 2007 the market price of a DPF was EUR 453 and the price of the substrate (semi-finished product) was only EUR […], while the market price of a DOC was EUR 102 in 2007 (20).
(49)
Moreover, regarding the supply side substitution, IBIDEN HU indicates that the production technologies of DOC and DPF are very similar: the only main differences are that in the case of DPF a plugging process is added to that of DOC’s and the phase of cutting is earlier than in the case of DOC.
(50)
Furthermore, IBIDEN HU claims that according to several studies, including a document by Johnson Matthey Japan, there are manufacturers that produce both DOC and DPF, so the distinction between DOC manufacturers and DPF manufacturers is blurred.
4.2. Relevant product market according to Saint-Gobain and the interested party whose identity is withheld
(51)
Two of the four interested parties - Saint-Gobain and the party whose identity is withheld - supported the Commission’s doubts expressed in the Decision to open the formal investigation procedure. According to them, DOC and DPF cannot be considered as substitutes and thus they do not belong to the same relevant product market. Therefore, they argue that in the present case the DPF market alone is the relevant product market. According to these parties, the main reasons for this are the following:
4.2.1. No demand side substitution
(52)
The interested parties indicate that the main characteristics of the substrates for a DOC and a DPF are different: a DOC substrate is usually made from non porous cordierite which must resist 400 °C temperatures or from stainless metal foil. A DPF substrate is in general made of porous silicon carbide which must resist 1 000 °C (resistance to such high temperature is needed to burn-off soot and avoid blockage of the coated filter). Thus, due to very different thermal characteristics, customers cannot switch between substrates for DPF and substrates for DOC in case of relative price increase for one of the products.
(53)
According to Saint-Gobain, since the materials used for the substrates for DPF are higher performance materials, there is also a difference in prices between the two components: a substrate (without the cost of catalyst coating and canning) of a DPF on average costs EUR 120, while a substrate of a DOC on average costs between EUR 12-EUR 20 (also without the cost of catalyst coating and canning). Therefore, as Saint-Gobain claims, DPF manufacturers can obviously not switch to a DOC substrate for technical reasons (which they would otherwise do given the price difference) and a DOC producer would not substitute a DOC substrate with a DPF substrate as he/she would get a much more expensive product without an oxidation function comparable to a DOC substrate.
(54)
Saint-Gobain and the party with withheld identity also emphasize the differences in the use of a DOC and a DPF (21): the primary purpose of a DOC is to oxidise certain gases by way of chemical reaction, while the primary function of a DPF is to filter out soot by way of mechanical process. While, under certain circumstances, a DPF performs - as a collateral effect - some of the functionality of the DOC, the full oxidation effect cannot be achieved without the installation of both devices. Even the coated DPF that uses the substrate produced by IBIDEN HU does not have the full functionality of a DOC, since it only serves the purpose of providing sufficient temperature for the burning-off the soot, but it does not have the same purification effect as a full-function DOC. They indicate that, according to the expectations of many car manufacturers and automotive suppliers, a DOC and a DPF will remain separate devices installed next to each other in the gas exhaust line.
4.2.2. No supply side substitution
(55)
Further, Saint-Gobain and the party with withheld identity also indicate that the production process of the DOC and DPF substrates are very different: the non porous cordierite used for the DOC substrate is sintered in the air at 400 °C temperature. While silicon carbide, the material used for a DPF substrate (which is also the material of IBIDEN HU’s substrate), must be prepared at very high temperature (above 2 000 °C) in the oxygen free atmosphere. This difference of temperature alone is so vital that one of the most essential and costly production elements cannot be used to produce both types of product.
(56)
Further, a substrate for the DOC is always a single block honeycomb cylinder, the channels of which are not plugged. A substrate for the DPF is normally formed by gluing several filtering elements, and channels of the DPF are plugged. For the manufacture of DPF substrates a non-oxide high temperature sintering furnace, gluing and plugging equipment are needed, which are not necessary for the production of substrates for DOC. Thus, the interested parties argue that it is not possible to produce DPF on the DOC’s production lines or vice versa.
5. COMMENTS FROM THE HUNGARIAN AUTHORITIES
(57)
The Hungarian authorities support the view of Aerosol & Particle Technology Laboratory and IBIDEN Hungary Gyártó Kft. in relation to the relevant product, market, price, demand side and supply side specificities.
(58)
According to the Hungarian authorities, modern diesel emission control is based on the integration of different functionalities at system level. The close inter-dependency of all sub-units (such as DOC and DPF) in a diesel emission control system, has led to multi-player supply-chains, linking substrate, coating and exhaust system manufacturers, and the performance characteristics of each individual sub-unit create challenges to the entire supply-chain. Therefore the diesel emission control system or diesel after-treatment system should be defined as the relevant product.
(59)
They also argue that the product of IBIDEN HU is a multifunctional part fitted into the exhaust pipe system. The combination of this product and a DOC creates the third generation after-treatment device. Furthermore, the product of IBIDEN HU is a semi-finished product due to the fact that it will be coated at a further level. Without coating the product is not fully-functional and may not be classified as a finished product in terms of third-generation DPF. This is also supported by the fact that the final product is much more expensive than IBIDEN HU’s semi-finished product: currently the market price of the final device is 2,5 times higher than that of the filter produced by IBIDEN HU.
(60)
Further, the Hungarian authorities indicate that, in practice, DPFs are installed in most diesel-engine cars, and manufacturers that need a DOC also need a DPF. The demand creates a common market for the products, as the same manufacturers use the same methods, infrastructure and efforts to obtain the products. On the supply side, DOC and DPF manufacturers usually use the same manufacturing processes, production technology and materials. In terms of materials, both DOCs and DPFs use cordierite. In production they undergo the same processes, such as material preparation, mixture, tempering, and moulding, drying, finishing and firing. The only differences between the production process of the two products are an extra stage (plugging) and the rescheduling of another stage (cutting). Consequently, the same manufacturers will be involved with supply, and DOC and DPF compete with each other in the exhaust gas after-treatment market.
(61)
The Hungarian authorities emphasize that IBIDEN HU is able to produce substrates for particulate filters with the same equipment without any significant investment, as any manufacturer with the same production technology could. As the DPF is a form of developed DOC, the cost of the modification is not an initial investment in another product line, but an essential development of production assets.
(62)
In addition, the Hungarian authorities indicate that a clear trend can also be seen in the technological development of DOC and DPF, which is leading to a new generation of filters which could incorporate the advantages, characteristics and former technologies in one unit, thereby combining a DOC and a DPF. When defining the relevant market and calculating the market share, the DOC should also be taken into account as it constitutes a combined after-treatment device with a DPF, and together they ensure compliance with the regulations.
(63)
In view of the above arguments, the Hungarian authorities consider that the only supportable definition of the relevant market is the whole diesel after-treatment devices market, including both DPF and DOC. According to the study prepared by an independent market research company AVL, IBIDEN’s market share in the diesel after-treatment devices market remains below 25 % both before and after the investment, thus, fulfilling the condition in paragraph 24(a) of MSF 2002. Therefore, the Hungarian authorities consider that the Commission should terminate the Article 88(2) procedure by a positive decision.
6. ASSESSMENT OF THE AID
6.1. Existence of State aid in the meaning of Article 87(1) of the EC Treaty
(64)
In the Decision to initiate the formal investigation procedure, the Commission concluded that the financial support given by the Hungarian authorities to IBIDEN Hungary Gyártó Kft. on the basis of the existing regional aid schemes (HU 1/2003 ‘Earmarked Scheme for Investment Promotion’ and N 504/2004 ‘Development Tax Benefit’) in the form of a grant and a tax credit constitutes State aid within the meaning of Article 87(1) of the EC Treaty. The Hungarian authorities have not contested that conclusion.
6.2. Notification requirement, legality of the aid, and applicable law
(65)
By notifying the measure in 2006, the Hungarian authorities complied with the individual notification requirement of paragraph 24 of the MSF 2002.
(66)
In line with paragraph 63 and footnote 58 of the Guidelines on national regional aid for 2007-2013 (22), the Commission assessed the aid measure under the provisions of the Guidelines on national regional aid 1998 (hereafter: RAG) and the MSF 2002.
6.3. Compatibility of the aid with the RAG
(67)
In the Decision to initiate the formal investigation procedure, the Commission indicated that the aid is granted in conformity with the existing regional aid schemes (23) and concluded that the standard compatibility criteria laid down in the RAG (such as compatibility criteria concerning initial investment in the region eligible for regional aid, eligible costs, own contribution, incentive effect, maintenance of the investment, cumulation) are respected.
6.4. Compatibility of the aid with the MSF 2002 provisions
6.4.1. Single investment project
(68)
Paragraph 49 of the MSF 2002 states that an investment project should not be artificially divided into sub-projects in order to escape the provisions of the framework. A ‘single investment project’ includes all the fixed investments on a production site in a period of three years (24). A production site is an economically indivisible series of fixed capital items fulfilling a precise technical function, linked by a physical or functional link, and which have clearly identified aims, such as the production of a defined product.
(69)
As IBIDEN HU already received regional aid in the past for the first phase of the investment project on the same location and as the notification refers to the second phase of the investment project, it is necessary to establish whether the two phases form part of the same single investment project.
(70)
In this regard the Commission observes that the two investment phases concern the same production site (the Dunavarsány Industrial Park, the region of Central Hungary), the same company (IBIDEN HU), the same product (ceramic substrates for Diesel Particulate Filters) and the start of works on each project were commenced within a period of three years (the first phase started in 2004, while the second phase started in 2005). Consequently, the Commission considers that the criteria of the definition of a ‘production site’ in paragraph 49 of the MSF 2002 are fulfilled and that the two phases of the investment form part of the same single investment project.
(71)
In addition, the Commission observes that the Hungarian authorities agree that the two phases of the investment by IBIDEN HU in the Dunavarsány Industrial Park have to be considered as a single investment project.
6.4.2. Aid intensity
(72)
As the first and second phases of the investment are considered to form a single investment project, they both are taken into account to calculate the maximum aid intensity of the project.
(73)
Given that the planned eligible expenditure in present value is HUF 41 953 072 670 (EUR 168,30 million) and the applicable standard regional aid ceiling is 40 % (NGE), the adjusted maximum aid intensity in NGE resulting from the scaling down mechanism of paragraphs 21 and 22 of the MSF 2002 is 23,34 %.
(74)
Since the aid intensity for the project is 22,44 % NGE and thus is below the maximum aid intensity allowed under the scaling down mechanism (23,34 % NGE), the proposed intensity of the overall aid package complies with the adjusted regional aid ceiling.
6.4.3. Compatibility with the rules under paragraphs 24(a) and (b) of the MSF 2002
(75)
Since the total aid amount of HUF 9 793 809 933 (EUR 39,29 million) in present value exceeds the individual notification threshold of EUR 30 million, the compliance of the notified aid with paragraph 24(a) and (b) of the MSF 2002 has to be assessed.
(76)
The Commission’s Decision to allow regional aid to large investment projects falling under paragraph 24 of the MSF 2002 depends on the market share of the beneficiary before and after the investment and on the capacity created by the investment. To carry out the relevant tests under paragraph 24(a) and (b) of the MSF 2002, the Commission has first to identify the product(s) concerned by the investment, and to define the relevant product and geographic markets.
6.4.3.1. Product concerned by the investment project
(77)
According to paragraph 52 of the MSF 2002, ‘product concerned’ means the product envisaged by the investment project and, where appropriate, its substitutes considered to be such, either by the consumer (by reason of the product’s characteristics, prices and intended use) or by the producer (through flexibility of the production installations). When the project concerns an intermediate product and a significant part of the output is not sold on the market, the product concerned will be deemed to include the downstream products.
(78)
The notified project concerns the production of ‘ceramic substrates for diesel particulate filters (DPF)’. DPF is an automotive part, which is fitted into the exhaust gas treatment system of diesel engine vehicles and which cleans the exhaust gas generated by engine combustion (25).
(79)
The ceramic part, which is produced by IBIDEN HU, is an intermediate product. After having produced it in the factory (TIER 3), it is sold under market conditions through IBIDEN Deutschland GmbH (26) to independent companies (the main customers are […], […] and […]), which perform the precious metal coating of the substrate, and thus the DPF becomes a coated DPF (TIER 2). The coated DPFs are then sold to exhaust manifold producers (TIER 1), which are the direct suppliers of car assembly factories. The end users of ceramic substrates are diesel passenger cars and light duty trucks.
(80)
No other products for sale on the market or use by other IBIDEN Group’s plants will result from the investment project. The Hungarian authorities confirmed that no other products than those notified and assessed will be produced at the aided facility for five years after the end of the project/full production.
(81)
Following the above, the Commission will consider the ceramic substrate for DPF, which is installed in diesel passenger cars and light duty trucks as the product envisaged by the investment project.
6.4.3.2. Relevant product and geographic markets
(82)
The definition of the relevant product market requires the examination of what other products could be considered as substitutes to the product envisaged by the investment project within the meaning of paragraph 52 of the MSF 2002. In this regard and, having taken into account the comments from the interested parties and the Hungarian authorities, the Commission has looked which products could be considered as substitutes for DPF. The summary of this analysis is presented below.
1. General overview of the exhaust gas treatment system
(83)
Emission reduction is a complex area with many interactions between technologies, impact on fuel economy, driving performance, durability and costs. Emission reduction measures can be divided into two main areas:
(a)
combustion system developments to reduce engine-out emissions; and
(b)
emission control technologies using ‘after-treatment’ of engines exhaust gas (only the latter is relevant for the present case).
(84)
The exhaust gas of diesel engines contains hazardous substances: significant amounts of particulate matter (‘PM’, such as soot and Soluble Organic Fraction (SOF) (27)), and hazardous gases (such as hydrocarbons (HC), carbon oxides (COx), nitrogen oxides (NOx)). These materials are treated by the exhaust gas treatment system installed in vehicles.
(85)
Accordingly, there are certain components within the system which clean hazardous substances. In general, these can be devices: (1) which clean the gas components and (2) which clean the particulate matter (including soot). The following two emission after-treatment devices, which are relevant for the present case, are used in diesel passenger cars and light duty trucks:
(a)
‘DOC’ - Diesel Oxidation Catalyst, which is intended to suppress hazardous gases (mainly hydrocarbons (HC), carbon oxides (COx)) and, as a collateral effect, it also eliminates to a certain extent SOF (soluble organic fraction of particulate matter), but which cannot treat soot. A DOC, similarly to a DPF, is composed of an inner-solid substrate through which the exhaust gases are channelled. When flowing through the channels, the exhaust gas enters into chemical reactions with the catalysers (platinum and palladium) deposited on the wall of the substrate. Since 2000 DOCs have been introduced in practically all diesel passenger car models in EEA in order to comply with more stringent emission norms, with regard to the limits of harmful gases in the emissions.
(b)
‘DPF’ - Diesel Particulate Filter, which is intended to retain the insoluble fractions of the particulate matter, i.e. soot. This is achieved by mechanical filtering. The exhaust gas flows into the channels of the DPF honeycomb structure and is forced to flow through the walls since the channels are alternatively plugged. The substrate serves as a filter and the soot is deposited on its walls. However, the DPF becomes saturated with soot and in order for it to remain functional the soot needs to be eliminated by burning it (regeneration of the filter).
(86)
DPFs first appeared in series production in 2000 in the Peugeot 607 diesel car and have since become more and more widespread, witnessing a tremendous growth in the last 3-4 years. This growth is due partly to the tax incentives offered on diesel vehicles equipped with DPFs in several countries, partly to the more environmental conscious approach of the consumers, and also to the anticipation of tightening emission norms, notably, with regard to PM limits (in the EEA emission reduction is regulated by the ‘Euro’ emission standards). It is expected that before Euro 5 (28) comes into effect in 2009, an increasing share of diesel cars will already be equipped with DPF. This trend will ensure a further expanding market for DPFs in the coming years.
(87)
Different types of DPFs can be distinguished on the basis of the material of the filter (for instance, ceramic, cordierite or metal) and the filter regeneration strategy. Regeneration is necessary in order to eliminate (i.e. burn-off) the accumulated particles. In practice this is achieved either through an additive mixed with the fuel which lowers the oxidation temperature (the latter is known as an ‘uncoated DPF with fuel borne catalyst’) or through a precious metal coating covering the walls of the substrate which helps in the burn-off process (the latter is referred to as a ‘coated DPF’ or as an ‘impregnated catalysed DPF’).
(88)
Due to the precious metal coating, this type of coated DPF also treats, to a limited extent, HC and CO gases by way of a chemical oxidation process. IBIDEN HU’s product belongs to this category. It is a ceramic substrate which is subsequently coated at TIER 2, and then integrated into the exhaust manifold system at TIER 1.
2. The definition of the relevant product market following the interested parties’ and Hungarian authorities’ comments
(89)
In the Decision to open the formal investigation procedure, the Commission expressed several doubts, which have been summarised above, whether DOC and DPF can be considered as substitutes, which belong to the same relevant product market.
(90)
The Commission considers that the arguments put forward by the aid beneficiary IBIDEN HU, the interested party Aerosol & Particle Technology Laboratory and by the Hungarian authorities do not dispel the initial doubts of the Commission, which were confirmed by the comments of Saint-Gobain and the interested party whose identity is withheld. In particular the Commission observes the following:
(91)
The substrates of DPF and DOC do not belong to the same relevant product market as their product characteristics are different, as a consequence of which there is neither demand side nor supply side substitution between the two products.
(92)
From the demand side perspective, the Commission observes that there are significant differences in product characteristics, intended use and price between substrates for DPF and substrates for DOC:
(a)
As demonstrated by the interested parties, the substrates for DOC are mostly made of the non-porous cordierite. The material used for the DOC substrate must resist an internal temperature of approximately 400 °C present inside the DOC. The reference material used for the substrates for DPF is silicon carbide. The DPF substrate must be porous in order to ensure the soot filtration. Due to the necessary regeneration of DPF, the substrate must be made of material resisting to very high temperatures (approximately 1 000 °C in case of a coated DPF) and to repeated thermal shocks. Thus, due to their different thermal characteristics, customers will be unable to switch between substrates for DPF and substrates for DOC in the event of price increase for one of the products.
(b)
As far as the price is concerned, the Commission supports the view of Saint-Gobain and the interested party with withheld identity in this regard and observes that there is a big price difference between substrates of DOC and DPF, since the materials used for the substrates for DPF are higher performance materials whose production implies higher costs (for example, the use of a non-oxide high temperature sintering furnace is required). According to the submission from the interested parties, the average price per unit of the substrate for DPF ranges between EUR 120-180 (without the cost of the catalyst coating and the canning cost), whereas the price of the substrate for DOC ranges between EUR 12 and EUR 20 (also without the cost of the catalyst coating and the canning cost). Such a price difference indicates that substrates for DPF do not belong to the same market as substrates for DOC, because DPF TIER 2 manufacturers cannot switch to purchasing a DOC substrate for technical reasons (otherwise they would do so because of a big price difference) and a DOC producer would not substitute a DOC substrate with a DPF substrate as s/he would get a more expensive product without an oxidation function comparable to a DOC substrate.
(c)
As far as the intended use is concerned, on the basis of the submissions from the interested parties, the Commission observes that the primary purpose of a DOC is to oxidise certain gases contained in the diesel exhaust into less harmful substances by way of a chemical reaction. The primary function of a DPF is to filter out soot by way of a mechanical filtering process. While, under certain circumstances, a DPF performs - as a collateral effect - some of the functionality of the DOC, the full oxidation effect cannot be achieved without the installation of both devices. Moreover, a DOC device does not fulfil any functionality of a DPF, as it does not filter soot. According to the expectations of car manufacturers and automotive suppliers, DOC and DPF will remain separate devices installed next to each other in the gas exhaust line (29).
(d)
The oxidation performed by the catalysts of IBIDEN HU DPF substrate serves the purpose of providing sufficient temperatures for the burning of the soot, but it does not have the same purification effect as a full-function DOC. As has been pointed out in the submissions from the interested parties, the so-called multi-functional product by IBIDEN HU does not eliminate the need for a separate DOC in the exhaust gas treatment system. The Hungarian authorities and the aid beneficiary also admit that, due to the current legislation, IBIDEN HU’s so-called multi-functional product still needs to be installed together with the DOC.
(e)
The Commission observes that the belief expressed by the IBIDEN HU and the Hungarian authorities concerning the tendency to use a combined single solution (of DOC and DPF) might reflect the future trend of the emission control technologies, however, it does not reflect the current situation, which is subject to the Commission’s analysis. Thus both DPF and DOC will continue to co-exist and will be installed together in the period to be considered (from 2003 to 2008 i.e. one year before the start of and one year after full completion of the investment project). As illustrated by market data estimates in one of the studies, DOCs remain the major emission control component to be installed in all diesel cars in the period concerned. The study also confirms that for future Euro 5 and Euro 6 technologies DOCs will continue to be used for oxidation of CO, HC and SOF.
(f)
In addition, the Commission observes that the market study by Frost & Sullivan, which is an independent industry consultant and researcher, analyses only DPF as a stand alone product to treat particulate matter and it does not refer to DOC.
(93)
Further, from the supply side perspective, there are differences in the production processes of the DOC and DPF substrates. Since the DPF substrate must have high temperature resistance, the material (mostly silicon carbide) must be prepared at very high temperatures and under oxygen free atmosphere. The cordierite which is predominantly used for the DOC substrate is sintered in the air and at relatively much lower temperature. Moreover, the substrate for DOC is a single block honeycomb cylinder whereas the DPF substrate is formed by gluing several filtering elements and the channels of the DPF are plugged, which is not the case for DOC. It follows then that the production of the DPF substrate necessitates a non oxide high temperature sintering furnace, gluing system and plugging machines and these equipments are not necessary for the production of the DOC substrate. It appears therefore that it is not possible to produce DPF and DOC substrate on the same production lines without significant additional costs.
(94)
As regards, the argument put forward by IBIDEN HU and the Hungarian authorities that there are manufacturers that produce both DOC and DPF and that the distinction between DOC manufacturers and DPF manufacturers is thus blurred, the Commission considers that it is not relevant whether the same manufacturer can produce or not both products. What is relevant is whether the same equipment can be used for the production of both substrates without significant additional costs. This was not demonstrated by the interested parties or the Hungarian authorities. Notably, no concrete evidence of DOC substrate producers, which would produce substrates for DPFs with the same equipment without major additional investment costs, or vice versa, was provided.
(95)
In view of the above-mentioned arguments, the Commission considers that although a DOC and a DPF belong, together with the other components (for instance, Lean NOx Trap, the purpose of which is to reduce the NOx in the exhaust gas) to a diesel passenger car’s or light duty truck’s after-treatment/diesel emission control system, the mere fact that they exist next to each other in the same exhaust line or influence each other’s development does not make them substitutes from the demand side and/or supply side viewpoint, as these are two separate components with different characteristics, prices and intended use. Moreover, as regards substitutability on the supply side, there are differences in the production processes of the DOC and DPF substrates, leading to the conclusion that there is no substitutability between DOC substrates and DPF substrates on the supply side.
(96)
On the basis of the above and for the purpose of this Decision, the Commission considers that the relevant product market covers only substrates for Diesel Particulate Filters to be fitted in the exhaust systems of diesel passenger cars and light duty trucks.
3. Relevant geographic market
(97)
In the Decision to initiate the formal investigation procedure the Commission considered that the relevant geographical market should be EEA-wide due to the differences in emission regulation and fuel quality standards compared to third countries and the lower share of diesel vehicles in other major automotive markets (30). At present demand seems to be very low for after-treatment devices for diesel light duty vehicles in markets other than EEA. With the development of more advanced after-treatment devices for diesel vehicles, which will then be able to meet the requirements regarding exhaust-gas emission in some third countries, the market for after-treatment devices is expected to expand geographically only after 2008.
(98)
None of the interested parties or the Hungarian authorities have contested this conclusion. On the basis of the above and for the purpose of this decision, the Commission considers that the relevant geographical market for DPF is EEA-wide.
6.4.3.3. Market share
(99)
According to paragraph 24(a) of the MSF 2002, an individually notifiable investment project will not be eligible for investment aid if the aid beneficiary accounts for more than 25 % of the sales of the product concerned before the investment or will, after the investment, account for more than 25 %.
(100)
To examine whether the project is compatible with paragraph 24(a) of the MSF 2002, the market share of the aid beneficiary at group level before and after the investment has to be analysed. As the investment of IBIDEN HU started in 2004 and the full capacity production of 2,4 million units per year was expected to be achieved in 2007, the Commission examined the market shares in 2003 and 2008.
(101)
The Hungarian authorities confirmed that there are no joint-ventures and long-term marketing arrangements between IBIDEN and other companies in the ceramic division.
(102)
The Hungarian authorities have provided market data from the following sources: Frost & Sullivan Ltd. and AVL List GmbH. The market shares of IBIDEN Group on DPF market before the start and after completion of the project in volume terms for Europe are given in Table III below.
Table III
Market share of IBIDEN at group level in Europe
(Data in units)
2003
2008
Sales by IBIDEN group
[…]
[…]
Total DPF market
702 000
6 340 000
Share in DPF market
[…] %
[…] %
Source: Frost & Sullivan Ltd. ().
(103)
The studies submitted by the Hungarian authorities demonstrate that the market share of IBIDEN at Group level in the DPF market both before and after the investment amounts to […] % - […] % in Europe in volume terms (32) and therefore substantially exceeds the 25 % threshold (33). Thus the condition in paragraph 24(a) of the MSF 2002 is not respected.
6.4.3.4. Production capacity increase/Growing market test
(104)
Paragraph 24 of the MSF 2002 provides that individually notifiable projects will not be eligible for investment aid if one of the conditions stipulated in paragraph 24 is not fulfilled. Although, as indicated above, the condition in paragraph 24(a) of the MSF 2002 is not respected, the Commission has also examined whether the investment project complies with another condition stipulated in paragraph 24(b) of the MSF 2002. According to paragraph 24(b) of the MSF 2002, the individually notifiable investment project will not be eligible for investment aid if the capacity created by the project is more than 5 % of the size of the market measured using apparent consumption data of the product concerned, unless the average annual growth rate of its apparent consumption over the last five years is above the average annual growth rate of the European Economic Areas’s GDP over the same period.
(105)
In this context the Commission observes that, as shown in Table IV below, the average annual growth of the apparent consumption (measured as total sales) in Europe of DPF over the last five years is substantially above the average annual growth rate of the EEA’s GDP (34).
Table IV
Growing market test
(Sales in units)
2001
2002
2003
2004
2005
2006
CAGR (35)
DPF
29 000
290 000
702 000
1 169 000
1 791 000
2 957 000
152,17 %
GDP (millions of EUR in constant 1995 prices) (EU 27)
8 197 605,0
8 295 193,5
8 402 482,6
8 610 427,6
8 765 680,7
9 027 663,9
1,95 %
(106)
Consequently, the Commission concludes that the aid under scrutiny is in conformity with paragraph 24(b) of the MSF 2002, however, as shown above, the aid is not in conformity with paragraph 24(a) of the MSF 2002.
6.5. Negative effects of the aid and conclusion
(107)
In accordance with the rules on regional aid, aid amounting to HUF 7 411 828 735 (EUR 29,73 million) in present value (HUF 11 745 422 640 or EUR 47,12 million in nominal value) had already been granted to IBIDEN HU on the basis of the existing regional aid schemes (36) up to the individual notification threshold established in paragraph 24 of the MSF 2002. The aid amount, which is subject to the present notification, is the difference between the total amount of aid and the support already granted, i.e. HUF 2 381 981 198 (EUR 9,56 million) in present value (in nominal value this amount is HUF 3 845 801 110 or EUR 15,43 million).
(108)
Paragraph 24 of the MSF 2002 provides that individually notifiable projects will not be eligible for investment aid if one of the conditions stipulated in paragraph 24 is not fulfilled. As demonstrated above, the aid under the scrutiny does not comply with paragraph 24(a) of the MSF 2002 because the market share of IBIDEN at group level in the DPF market in Europe both before and after the investment substantially exceeds the 25 % threshold.
(109)
The high market share of IBIDEN reflects the prevailing position of the company in the DPF market. According to the study by Frost & Sullivan Ltd (F&S) (37) and comments provided by the interested parties, IBIDEN enjoys an outstanding position in the European market for DPF, as it is one of the two major filter substrate manufacturers in the world (the other main manufacturer being NGK). The Commission observes that the DPF market in Europe has experienced tremendous growth over the last years, as all vehicle manufacturers adopt the technology to meet the Euro emission limits. It is a highly profitable market the future strong development of which also seems to be secured. The aid subject to the notification would even more strengthen the leading position of IBIDEN in this market, making it more difficult for new entrants to consolidate their position in this market. The aid subject to the notification is thus susceptible to create substantial distortion of competition.
(110)
On the basis of the foregoing considerations, the Commission concludes that the aid subject to the notification is not compatible with the common market. As the aid of HUF 2 381 981 198 (EUR 9,56 million) in present value (in nominal value this amount is HUF 3 845 801 110 or EUR 15,43 million) has not been granted, there is no need for its recovery,
HAS ADOPTED THIS DECISION:
Article 1
The State aid which the Republic of Hungary is planning to implement for IBIDEN Hungary Gyártó Kft. amounting to HUF 2 381 981 198 in present value (HUF 3 845 801 110 in nominal terms) is incompatible with the common market.
The aid may accordingly not be implemented.
Article 2
The Republic of Hungary shall inform the Commission, within two months of notification of this Decision, of the measures taken to comply with it.
Article 3
This Decision is addressed to the Republic of Hungary.
Done at Brussels, 30 April 2008.
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COMMISSION DIRECTIVE 2009/26/EC
of 6 April 2009
amending Council Directive 96/98/EC on marine equipment
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 96/98/EC of 20 December 1996 on marine equipment (1) and in particular Article 17 thereof,
Whereas:
(1)
For the purposes of Directive 96/98/EC, the international conventions and testing standards should apply in their up-to-date versions.
(2)
As amendments to the international conventions and applicable testing standards have entered into force since 30 June 2008, date on which Directive 96/98/EC was amended for the last time, these amendments should be incorporated into that Directive in the interests of clarity.
(3)
The International Maritime Organisation and the European standardisation organisations have adopted standards, including detailed testing standards, for a number of items of equipment which are listed in Annex A.2 to Directive 96/98/EC or which, albeit not listed, are considered relevant for the purpose of the said Directive. Therefore such items of equipment should be included in Annex A.1 or transferred from Annex A.2 to Annex A.1, as appropriate.
(4)
Directive 96/98/EC should therefore be amended accordingly.
(5)
The measures provided for in this Directive are in accordance with the opinion of the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS),
HAS ADOPTED THIS DIRECTIVE:
Article 1
Annex A to Directive 96/98/EC is replaced by the text in the Annex to this Directive.
Article 2
Where equipment listed as ‘new item’ in column 1 of Annex A.1 of Directive 96/98/EC or as having been transferred from Annex A.2 to Annex A.1 of that Directive was manufactured before the date referred to in Article 3(1) of this Directive in accordance with procedures for type-approval already in force before that date within the territory of a Member State, such equipment may be placed on the market and on board a Community ship during the two years following the said date.
Article 3
Transposition
1. Member States shall adopt and publish, by 6 April 2010 at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those provisions.
They shall apply those provisions from 6 April 2010.
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 text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 4
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
Article 5
This Directive is addressed to the Member States.
Done at Brussels, 6 April 2009.
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COMMISSION REGULATION (EC) No 1509/2004
of 25 August 2004
prohibiting fishing for cod by vessels flying the flag of Spain
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 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 (2) lays down quotas for cod for 2004.
(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 hereby deemed to have exhausted the quota allocated.
(3)
According to the information received by the Commission, catches of cod in the waters of ICES divisions I and II (Norwegian waters) by vessels flying the flag of Spain or registered in Spain have exhausted the quota allocated for 2004. Spain has prohibited fishing for this stock from 7 July 2004. This date should be adopted in this Regulation also,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of cod in the waters of ICES divisions I and II (Norwegian waters) by vessels flying the flag of Spain or registered in Spain are hereby deemed to have exhausted the quota allocated to Spain for 2004.
Fishing for cod in the waters of ICES divisions I and II (Norwegian waters) by vessels flying the flag of Spain or registered in Spain 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 7 July 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 August 2004.
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*****
COMMISSION DECISION
of 8 February 1983
concerning aid to maintain maritime employment granted to fishing undertakings by the French Government
(Only the French text is authentic)
(83/313/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular the first subparagraph of Article 93 (2) thereof,
Having regard to Council Regulation (EEC) No 100/76 of 19 January 1976 on the common organization of the market in fishery products (1), as last amended by Regulation (EEC) No 3443/80 (2), and in particular Article 26 thereof, and to Council Regulation (EEC) No 3796/81 (3), which replaced Regulation (EEC) No 100/76 with effect from 1 June 1982, and in particular Article 28 thereof,
Having given notice, in accordance with the first subparagraph of Article 93 (2), to the parties concerned to submit their comments, and having regard to these comments,
I
Whereas, in response to a request made by the Commission on 12 October 1979, the French authorities, in accordance with Article 93 (3) of the EEC Treaty, informed the Commission by letter dated 21 April 1980 of the granting of aid in 1979 and 1980 to fishing undertakings in an attempt to maintain employment in coastal areas;
Whereas this aid amounted, in practice, to FF 0,105 for each litre of gas-oil used; whereas it was granted to all fishing undertakings; whereas the sum set aside for this aid in 1979 and 1980 was FF 53 million;
Whereas it emerged that this aid had been granted regularly in France since 1974; whereas the granting thereof in 1974 and 1975 had been authorized by the Commission; whereas the Commission had raised no objections to its renewal in 1977;
Whereas the French Government stresses that the aim of the aid in question is to mitigate the effects on the fishing fleets of the spectacular increase in running costs, the dwindling of catches the redeployment of fishing activities and the absence of the necessary Community measures, a situation which has resulted in large-scale laying-up and which could in the long term jeopardize employment in coastal areas;
Whereas the French Government has explained that the reference to fuel is used merely as a criterion for granting the aid and that the aid in question is to be considered as employment aid;
Whereas the aid described above falls within the scope of Article 92 to 94 of the EEC Treaty by virtue of the Articles of Regulations (EEC) No 100/76 and (EEC) No 3796/81 referred to above;
Whereas, following initial scrutiny, the Commission took the view that the aid in question, granted since 1974, was no longer temporary aid but operating aid granted with no actual reciprocal commitment on the part of the recipient, that it had a substantial direct impact on competition and trade between the Member States and that it was therefore incompatible with the common market within the meaning of Article 92 of the Treaty; whereas it accordingly decided to initiate the procedure provided for in Article 93 (2) of the Treaty in respect of the above aid and, to this effect, by letter of 22 July 1980, gave the French Government formal notice to submit its comments;
Whereas, in June 1981, the Commission learned of the French Government's intention to continue this aid after 1980 despite the procedure pending under Article 93 (2) and to double the rate; whereas, in response to a request made by the Commission on 3 and 27 July 1981, the French Government stated that the matter was still at the planning stage, and that the Commission would be notified at the appropriate time;
Whereas, in December 1981, the Commission learned that the French Government had in fact decided to double the aid in question with effect from July 1981; whereas, after being asked for confirmation by telex dated 22 December 1981, the French Government confirmed this information by telex dated 8 January 1982 and, in accordance with Article 93 (3) of the EEC
Treaty, notified the extension and doubling of the aid in question for 1982, to be granted on the same basic terms; whereas the level of the aid in question was fixed at FF 0,21 per litre of fuel used and the sum set aside for the purpose was FF 106 million; whereas such notification implies that the aid in question was granted in 1981 without the Commission being notified in advance;
Whereas the Commission decided to initiate the procedure provided for in Article 93 (2) of the Treaty in respect of this new aid, and, to this effect, on 25 February 1982, sent the French Government a letter giving it notice to submit its comments;
Whereas it follows from the above that the French Government clearly failed in its obligations under Article 93 (3) of the EEC Treaty;
II
Whereas, in its replies to the Commission dated 13 October 1980 and 6 April 1982, the French Government stated that the granting of aid to maintain maritime employment in 1980, 1981 and 1982 does not distort competition, as proven by the regular increase since 1977 of French fishery imports, mostly from elsewhere in the Community, and that the aid in question is not aid for fuel as it is not indexed to the price of oil but, by contrast, is progressive in nature; whereas, despite its being doubled in 1982, the aid has in fact dropped since 1977 in terms of the price of fuel from 17 to 12 %;
Whereas the French Government claims that the aid in question is intended, pending Community decisions, to enable fishing enterprises to adapt to new fishing conditions and to prevent a probable irreversible decline in their activity, and a reduction in their income, or even a loss of jobs in areas which have little industry, are very isolated and are particularly dependent on fishing; whereas such aid is intended to be temporary; whereas, lastly, other Member States in similar situations have adopted measures which are either identical or comparable in effect;
Whereas several Member States and several sectoral organizations have submitted their comments to the Commission; whereas certain Member States and sectoral organizations share the commission's view; whereas other Member States feel that the absence of a common fisheries policy may lead Member States to introduce aids to prevent the current situation from deteriorating; whereas several sectoral organizations would like to see the granting of fisheries aids harmonized within the Community;
III
Whereas the fuel subsidies in question have a direct impact on the production costs of recipients and have given them a definite advantage over the other Community fishermen;
Whereas the fact that the aid in question has been granted since 1974 means that it is no longer temporary; whereas the Commission has made it clear to the Member States, and notably to the French authorities in 1975, that it was not in favour of the idea of extending the aids for fuel which it had authorized in the fisheries sector in 1974 and 1975;
Whereas the fact that French fishery imports are on the increase does not cancel out the impact of aid on intra-Community trade and comptetition;
Whereas the reference made by the French Government to similar aids in other Member States does not appear relevant as the mere existence of an aid scheme in one Member State is never sufficient to justify the granting of similar aid in another Member State;
Whereas intra-Community trade in fishery products for human consumption is substantial and accounts for approximately 30 % of total landings for human consumption in the Community as a whole; whereas, for its part, the French market receives approximately 60 % of its requirements from the landings made by its own fishermen, approximately 20 % from imports from non-member countries and approximately 20 % from imports from the other Member States, and France exports 16 % of its production, approximately two-thirds of which goes to the other Member States;
Whereas the aid in question is simply an aid for fuel and cannot be considered as employment aid; whereas there is no requirement regarding the use of the aid and, in particular, no link with the level of employment in the recipient undertakings;
Whereas the fact that the aid in question is not indexed to the price of oil does not mean that it is not aid for fuel;
Whereas the absence of Community decisions on the reform of the common fisheries policy does not constitute a valid reason for Member States to grant national aids;
Whereas, moreover, for a number of years all Community fishermen have been faced with a very sharp increase in the price of fuel; whereas competition on the Community market in fishery products is very keen; IV
Whereas it follows from the above that the aid introduced by the French Government is likely to affect trade between the Member States and to distort or threaten to distort competition within the meaning of Article 92 (1) of the EEC Treaty;
Whereas Article 92 (1) of the EEC Treaty states that aids fulfilling the criteria laid down therein are incompatible in principle with the common market; whereas exceptions to this incompatibility, which are the only exceptions relevant to the case in point, are set out in paragraph 3 of the said Article and lay down the objectives followed in the Community's interest and not only in the interest of individual sectors of the national economy; whereas these exceptions are to be strictly interpreted when scrutinizing any aid programme of a regional or sectoral nature or any individual case of application of general aid schemes; whereas exceptions may be allowed only in cases where the Commission can establish that the aid is necessary for achievement of one of the objectives set out in these provisions;
Whereas to allow such exceptions in respect of aids which do not offer such a compensatory advantage would amount to allowing trade between Member States to be affected and competition to be distorted without justification on grounds of Community interest and would result in unfair advantages for certain Member States;
Whereas it has not been possible to establish the existence of such a compensatory advantage in the case in point; whereas the French Government was unable to provide any evidence, and the Commission could find none, that the aids in question fulfilled the conditions required for allowing one of the exceptions provided for in Article 92 (3) of the EEC Treaty;
Whereas the aid in question is clearly not designed to promote or facilitate the development of certain areas; whereas, on regional criteria, Article 92 (3) (a) and (c) is accordingly inapplicable;
Whereas such aids constitute neither an important project of common European interest nor measures capable of remedying a serious disturbance in the French economy; whereas Article 92 (3) (b) of the Treaty is accordingly inapplicable;
Whereas aid for fuel, intended as it is to reduce the cost of certain inputs, constitutes an operating aid with no lasting impact on the economic situation of the recipients; whereas, in general, the Commission has always been opposed to such aid, since, as a rule, such aid does not in itself fulfil the conditions for eligibility for the exception provided for in Article 92 (3) (c) of the EEC Treaty, since it is not likely to facilitate the development of certain activities within the meaning of that provision;
Whereas, in its communication to the Council of 25 May 1978 on sectoral aid policy, the Commission made it clear that temporary aids to mitigate the social consequences of a crisis situation must be linked with restructuring objectives for the sector in question and subject to action by recipients to facilitate conversion; whereas this does not apply in the case of the aid in question;
Whereas it follows from the above that the aid in question does not fulfil the conditions required for eligibility for one of the exceptions under Article 92 (3) of the EEC Treaty,
HAS ADOPTED THIS DECISION:
Article 1
The aid to maintain maritime employment as granted to fishing undertakings in France form 1979 to 1982 is incompatible with the common market within the meaning of Article 92 of the EEC Treaty. Such aid must accordingly no longer be granted.
Article 2
The French Republic shall inform the Commission, within one month of the notification of this Decision, of the measures taken to comply therewith.
Article 3
This Decision is addressed to the French Republic.
Done at Brussels, 8 February 1983.
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Commission Regulation (EC) No 123/2002
of 24 January 2002
fixing the export refunds 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 (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), as last amended by Regulation (EC) No 1670/2000(2), and in particular Article 31(3) thereof,
Whereas:
(1) Article 31 of Regulation (EC) No 1255/1999 provides that the difference between prices in international trade for the products listed in Article 1 of that Regulation and prices for those products within the Community may be covered by an export refund within the limits resulting from agreements concluded in accordance with Article 300 of the Treaty.
(2) Regulation (EC) No 1255/1999 provides that when the refunds on the products listed in Article 1 of the abovementioned Regulation, exported in the natural state, are being fixed, account must be taken of:
- the existing situation and the future trend with regard to prices and availabilities of milk and milk products on the Community market and prices for milk and milk products in international trade,
- marketing costs and the most favourable transport charges from Community markets to ports or other points of export in the Community, as well as costs incurred in placing the goods on the market of the country of destination,
- the aims of the common organisation of the market in milk and milk products which are to ensure equilibrium and the natural development of prices and trade on this market,
- the limits resulting from agreements concluded in accordance with Article 300 of the Treaty, and
- the need to avoid disturbances on the Community market, and
- the economic aspect of the proposed exports.
(3) Article 31(5) of Regulation (EC) No 1255/1999 provides that when prices within the Community are being determined account should be taken of the ruling prices which are most favourable for exportation, and that when prices in international trade are being determined particular account should be taken of:
(a) prices ruling on third country markets;
(b) the most favourable prices in third countries of destination for third country imports;
(c) producer prices recorded in exporting third countries, account being taken, where appropriate, of subsidies granted by those countries; and
(d) free-at-Community-frontier offer prices.
(4) Article 31(3) of Regulation (EC) No 1255/1999 provides that the world market situation or the specific requirements of certain markets may make it necessary to vary the refund on the products listed in Article 1 of the abovementioned Regulation according to destination.
(5) Article 31(3) of Regulation (EC) No 1255/1999 provides that the list of products on which export refunds are granted and the amount of such refunds should be fixed at least once every four weeks; the amount of the refund may, however, remain at the same level for more than four weeks.
(6) In accordance with Article 16 of Commission Regulation (EC) No 174/1999 of 26 January 1999 on specific detailed rules for the application of Council Regulation (EC) No 804/68 as regards export licences and export refunds on milk and milk products(3), as last amended by Regulation (EC) No 2594/2001(4); the refund granted for milk products containing added sugar is equal to the sum of the two components; one is intended to take account of the quantity of milk products and is calculated by multiplying the basic amount by the milk products content in the product concerned; the other is intended to take account of the quantity of added sucrose and is calculated by multiplying the sucrose content of the entire product by the basic amount of the refund valid on the day of exportation for the products listed in Article 1(1)(d) of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(5), however, this second component is applied only if the added sucrose has been produced using sugar beet or cane harvested in the Community.
(7) Commission Regulation (EEC) No 896/84(6), as last amended by Regulation (EEC) No 222/88(7), laid down additional provisions concerning the granting of refunds on the change from one milk year to another; those provisions provide for the possibility of varying refunds according to the date of manufacture of the products.
(8) For the calculation of the refund for processed cheese provision must be made where casein or caseinates are added for that quantity not to be taken into account.
(9) It follows from applying the rules set out above to the present situation on the market in milk and in particular to quotations or prices for milk products within the Community and on the world market that the refund should be as set out in the Annex to this Regulation.
(10) 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 export refunds referred to in Article 31 of Regulation (EC) No 1255/1999 on products exported in the natural state shall be as set out in the Annex.
Article 2
This Regulation shall enter into force on 25 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 January 2002.
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COUNCIL DECISION
of 21 June 2004
amending Decision 2003/893/EC on trade in certain steel products between the European Community and Ukraine
(2004/521/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof,
Whereas:
(1)
As from 1 May 2004, the European Union includes 10 new Member States, which are: Cyprus, Czech Republic, Estonia, Hungary, Lithuania, Latvia, Malta, Poland, Slovenia and Slovakia. The 2003 Act of Accession stipulates in its Article 6(8) that the quantitative restrictions applied by the Community on imports of steel products shall be adjusted on the basis of imports of new Member States over recent years.
(2)
By Decision 2003/893/EC (1), the Council adopted quantitative limits on imports into the European Community of certain steel products originating in Ukraine.
(3)
Since the negotiations with Ukraine on the conclusion of a bilateral steel agreement have not been completed, and in pursuance of Article 6(8), third subparagraph of the 2003 Act of Accession, it is necessary to provide for the increase of existing quantitative limits to ensure that traditional trade is maintained after the enlargement of the European Union. This increase is based on the average of the imports of the relevant steel products by the new Member States over the years 2000, 2001 and 2002 adjusted pro rata temporis, since the enlargement will be effective on 1 May 2004, and further adjusted by applying the same reducing factor of 30 % already applied to the quantitative limits adopted as a result of the obstacles to the export of ferrous scrap imposed by Ukraine. These quantitative limits will be further amended as necessary following the conclusion of an agreement.
(4)
Therefore, Annex II to Council Decision 2003/893/EC should be amended,
HAS DECIDED AS FOLLOWS:
Article 1
Annex II to Decision 2003/893/EC shall be replaced by the Annex to this Decision.
Article 2
This Decision shall take effect on the third day following that of its publication in the Official Journal of the European Union.
Done at Luxembourg, 21 June 2004.
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COMMISSION DECISION
of 28 November 2007
amending Council Directive 92/34/EEC to extend the derogation relating to import conditions for fruit plant propagating material and fruit plants intended for fruit production from third countries
(notified under document number C(2007) 5693)
(2007/776/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 92/34/EEC of 28 April 1992 on the marketing of fruit plant propagating material and fruit plants, intended for fruit production (1), and in particular the second subparagraph of Article 16(2) thereof,
Whereas:
(1)
The Commission is required pursuant to Article 16(1) of Directive 92/34/EEC to decide whether fruit plant propagating material and fruit plants produced in a third country and affording the same guarantees as regards obligations on the supplier, identity, characteristics, plant health, growing medium, packaging, inspection arrangements, marking and sealing are equivalent in all these respects to fruit plant propagating material and fruit plants produced in the Community and complying with the requirements and conditions of that Directive.
(2)
However, the information presently available on the conditions applying in third countries is still not sufficient to enable the Commission to adopt any such decision in respect of any third country at this stage.
(3)
In order to prevent trade patterns from being disrupted, Member States importing fruit plant propagating material and fruit plants from third countries should continue to be allowed to apply conditions equivalent to those applicable to similar Community products in accordance with Article 16(2) of Directive 92/34/EEC. The period of application of the derogation provided for in Directive 92/34/EEC for such imports should consequently be extended beyond 31 December 2007.
(4)
Directive 92/34/EEC should therefore be amended accordingly.
(5)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Propagating Material and Plants of Fruit Genera and Species,
HAS ADOPTED THIS DECISION:
Article 1
In the first subparagraph of Article 16(2) of Directive 92/34/EEC, the date ‘31 December 2007’ is replaced by ‘31 December 2010’.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 28 November 2007.
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COMMISSION REGULATION (EC) No 187/2009
of 10 March 2009
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 Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1),
Having regard to Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules for Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (2), and in particular Article 138(1) thereof,
Whereas:
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 Annex XV, Part A thereto,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 138 of Regulation (EC) No 1580/2007 are fixed in the Annex hereto.
Article 2
This Regulation shall enter into force on 11 March 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 March 2009.
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COMMISSION REGULATION (EC) No 1287/2004
of 13 July 2004
establishing unit values for the determination of the customs value of certain perishable goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1),
Having regard to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation (EEC) No 2913/92 (2), 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 July 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 July 2004.
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Decision of the European Parliament and of the Council
of 21 November 2002
on the mobilisation of the EU Solidarity Fund according to point 3 of the Interinstitutional Agreement of 7 November 2002 between the European Parliament, the Council and the Commission on the financing of the European Union Solidarity Fund, supplementing the Interinstitutional Agreement of 6 May 1999 on budgetary discipline and improvement of the budgetary procedure
(2002/1010/EC)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Interinstitutional Agreement of 7 November 2002 between the European Parliament, the Council and the Commission on the financing of the European Union Solidarity Fund, supplementing the Interinstitutional Agreement of 6 May 1999 on budgetary discipline and improvement of the budgetary procedure(1), and in particular point 3 thereof,
Having regard to Council Regulation (EC) No 2012/2002 of 11 November 2002 establishing the European Union Solidarity Fund(2),
Having regard to the proposal from the Commission,
Whereas:
(1) Following the disastrous floods which occurred in August and September 2002 in some Member States and candidate countries whose accession to the European Union is currently under negotiation, the European Union has decided to create a European Union Solidarity Fund (EUSF) to face disasters.
(2) The Interinstitutional Agreement of 7 November 2002 allows the mobilisation of the Fund within the annual ceiling of EUR 1 billion.
(3) Regulation (EC) No 2012/2002 contains a specific provision whereby the Fund may retroactively be mobilised for disasters since August this year.
(4) The countries concerned have transmitted to the Commission their estimate of the damages caused by the August and September 2002 floods,
HAVE ADOPTED THIS DECISION:
Article 1
For the general budget of the European Union for the financial year 2002, the EU Solidarity Fund shall be mobilised to provide the sum of EUR 728 million in commitment appropriations.
Article 2
This Decision shall be published in the Official Journal of the European Communities.
For the European Parliament
The President
PIC FILE= "L_2002358EN.014301.TIF
For the Council
The President
PIC FILE= "L_2002358EN.014302.TIF
(1) OJ C 283, 20.11.2002, p. 1.
(2) OJ L 311, 14.11.2002, p. 3.
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*****
COMMISSION REGULATION (EEC) No 2762/90
of 27 September 1990
on interim measures applicable to trade in the agricultural sector after the unification of Germany
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2684/90 of 17 September 1990 on interim measures applicable after the unification of Germany, in anticipation of the adoption of transitional measures by the Council either in cooperation with, or after consultation of, the European Parliament (1), and in particular Article 3 thereof,
Whereas the former German Democratic Republic introduced mechanisms similar to those of the common agricultural policy or the common trade arrangements, and in particular the system of export refunds and import and export licences;
Whereas the rules thus introduced included the possibility of fixing the rates of refunds in advance; whereas in some cases those refunds exceeded the rates applicable on exportation from the Community;
Whereas, in order to ensure the smooth operation of trade, provisions should be adopted concerning the validity of refunds fixed in advance and of licences issued in the territory of the former German Democratic Republic from the date of unification onwards;
Whereas provisions have been adopted within the framework of specific market rules authorizing Germany to supplement refunds from national funds for the purpose of implementing agreements concluded by the former German Democratic Republic with third countries prior to unification; whereas special provisions should, however, be adopted for all the sectors concerned in order to ensure the performance under certain conditions of contracts concluded between private operators before unification;
Whereas the measures contained in this Regulation are without prejudice to measures to be adopted concerning abnormal stocks;
Whereas the measures provided for in this Regulation are to apply subject to any changes resulting from the decisions taken by the Council on the proposals presented to it by the Commission on 21 August 1990;
Whereas the measures provided for in this Regulation are in accordance with the opinions of all the relevant management committees,
HAS ADOPTED THIS REGULATION:
Article 1
1. Germany is hereby authorized to supplement from national funds the amount of the refund fixed by Community rules for the export of agricultural products originating in the former German Democratic Republic after 3 October 1990 where a specific refund in the former German Democratic Republic was guaranteed to the exporter in writing before 3 October 1990 by the authorities of the former German Democratic Republic.
2. Germany is hereby authorized to maintain from national funds the refund for the export of sheepmeat provided that the conditions laid down in paragraph 1 are fulfilled.
Article 2
Export licences without advance fixing issued by the authorities of the former German Democratic Republic shall remain valid in the territory of the Community.
Import licences without advance fixing issued by the authorities referred to in the preceding paragraph shall remain valid for imports into the territory of the former German Democratic Republic.
Article 3
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from the date of the unification of Germany until the entry into force of the Council Regulation on the transitional measures and adjustments required in the agricultural sector as a result of the integration of the territory of the former German Democratic Republic into the Community, the proposal for which was presented on 21 August 1990. However, it shall apply until 31 December 1990 at the latest.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 September 1990.
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Commission Regulation (EC) No 2190/2001
of 9 November 2001
concerning tenders submitted in response to the invitation to tender for the export of husked long grain rice to the island of Réunion referred to in Regulation (EC) No 2011/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3072/95 of 22 December 1995 on the common organisation of the market in rice(1), as last amended by Regulation (EC) No 1987/2001(2), and in particular Article 10(1) thereof,
Having regard to Commission Regulation (EEC) No 2692/89 of 6 September 1989 laying down detailed rules for exports of rice to Réunion(3), as amended by Regulation (EC) No 1453/1999(4), and in particular Article 9 (1) thereof,
Whereas:
(1) Commission Regulation (EC) No 2011/2001(5) opens an invitation to tender for the subsidy on rice exported to Réunion.
(2) Article 9 of Regulation (EEC) No 2692/89 allows the Commission to decide, in accordance with the procedure laid down in Article 22 of Regulation (EC) No 3072/95 and on the basis of the tenders submitted, to make no award.
(3) On the basis of the criteria laid down in Articles 2 and 3 of Regulation (EEC) No 2692/89, a maximum subsidy should not be fixed.
(4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
No action shall be taken on the tenders submitted from 5 to 8 November 2001 in response to the invitation to tender referred to in Regulation (EC) No 2011/2001 for the subsidy on exports to Réunion of husked long grain rice falling within CN code 1006 20 98.
Article 2
This Regulation shall enter into force on 10 November 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 November 2001.
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COMMISSION REGULATION (EC) No 467/2008
of 28 May 2008
amending Regulation (EC) No 2535/2001 laying down detailed rules for applying Council Regulation (EC) No 1255/1999 as regards the import arrangements for milk and milk products and opening tariff quotas
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 26(3) and Article 29(1) thereof,
Whereas:
(1)
Article 4 of Council Regulation (EC) No 55/2008 of 21 January 2008 introducing autonomous trade preferences for the Republic of Moldova and amending Regulation (EC) No 980/2005 and Commission Decision 2005/924/EC (2) provides for a tariff quota for dairy products. That tariff quota should be managed in accordance with Commission Regulation (EC) No 2535/2001 (3).
(2)
Article 26 of Council Regulation (EC) No 1528/2007 of 20 December 2007 applying the arrangements for products originating in certain States which are part of the African, Caribbean and Pacific (ACP) group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements (4) has repealed Council Regulation (EC) No 2286/2002 of 10 December 2002 on the arrangements applicable to agricultural products and goods resulting from the processing of agricultural products originating in the African, Caribbean and Pacific States (ACP States) and repealing Regulation (EC) No 1706/98 (5). Relevant adaptations should be made in Regulation (EC) No 2535/2001.
(3)
The Agreement on Trade, Development and Cooperation between the European Community and its Member States (TDCA), of the one part, and the Republic of South Africa, of the other part, approved by Council Decision 2004/441/EC (6) entered into force on 1 May 2004. That Agreement provides for cheese quotas to be opened by both parties on a yearly base. In the context of negotiations on accelerated trade liberalisation of cheeses between the European Community and South Africa, it has been convened that the cheese quotas by both parties should be managed on a ‘first come, first served’ basis, in accordance with Articles 308a to 308c(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (7).
(4)
Regulation (EC) No 2535/2001 should therefore be amended accordingly.
(5)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 2535/2001 is amended as follows:
1.
Article 5 is amended as follows:
(a)
points (c) and (e) are deleted;
(b)
the following point (j) is added:
‘(j)
the quota No 09.4210 provided for in Annex I to Council Regulation (EC) No 55/2008 (8).
2.
Paragraph 2 of Article 13 is replaced by the following:
‘2. Licence applications shall relate to at least 10 tonnes and no more than the quantity available under the quota for the six-month period as referred to in Article 6.
However, in the case of the quotas referred to in Article 5(a), licence applications shall relate to no more than 10 % of the quantity available.’
3.
Article 19 is amended as follows:
(a)
points (b) and (d) are deleted;
(b)
the following point (i) is added:
‘(i)
the provisions referred to in Article 2(1)(a) of Regulation (EC) No 55/2008.’
4.
Article 19a is amended as follows:
(a)
Paragraph 1 is replaced by the following:
‘1. Articles 308a to 308d(1) of Regulation (EEC) No 2454/93 shall apply to the quotas given in Annex VIIa and provided for in:
(a)
Council Regulation (EC) No 312/2003 (9);
(b)
Council Regulation (EC) No 747/2001 (10);
(c)
Annex IV, List 4 to the Agreement on Trade, Development and Cooperation with South Africa (11).
(b)
Paragraph 4 is replaced by the following:
‘4. Application of the reduced rate of duty shall be subject to the presentation of proof of origin issued in accordance with:
(a)
Annex III to the Agreement with Chile;
(b)
Protocol 4 to the Agreement with Israel;
(c)
Protocol 1 to the Agreement with South Africa (12).
5.
In Article 20(1), point (a) is deleted.
6.
In Article 22, point (a) is deleted.
7.
Annex I is amended as follows:
(a)
Parts I.C and I.E are deleted;
(b)
the text in Annex I to this Regulation is added as Part I.J.
8.
In Annex II, Part A is deleted.
9.
In Annex VIIa, a Part 3, the text of which is set out in Annex II to this Regulation, is added.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.
It shall apply from 1 June 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 May 2008.
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COMMISSION REGULATION (EC) No 1310/2004
of 15 July 2004
on import licences in respect of beef and veal products originating in Botswana, Kenya, Madagascar, Swaziland, Zimbabwe and Namibia
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),
Having regard to Council Regulation (EC) No 2286/2002 of 10 December 2002 on the arrangements applicable to agricultural products and goods resulting from the processing of agricultural products originating in the African, Caribbean and Pacific States (ACP States) and repealing Regulation (EC) No 1706/98 (2), and in particular Article 5 thereof,
Having regard to Commission Regulation (EC) No 2247/2003 of 19 December 2003 laying down detailed rules for the application in the beef and veal sector of Council Regulation (EC) No 2286/2002 on the arrangements applicable to agricultural products and certain goods resulting from the processing of agricultural products originating in the African, Caribbean and Pacific States (ACP States) (3), and in particular Article 5 thereof,
Whereas:
(1)
Article 1 of Regulation (EC) No 2247/2003 provides for the possibility of issuing import licences for beef and veal products originating in Botswana, Kenya, Madagascar, Swaziland, Zimbabwe and Namibia. However, imports must take place within the limits of the quantities specified for each of these exporting non-member countries.
(2)
The applications for import licences submitted between 1 and 10 July 2004, expressed in terms of boned meat, in accordance with Regulation (EC) No 2247/2003, do not exceed, in respect of products originating from Botswana, Kenya, Madagascar, Swaziland, Zimbabwe and Namibia, the quantities available from those States. It is therefore possible to issue import licences in respect of the quantities applied for.
(3)
The quantities in respect of which licences may be applied for from 1 August 2004 should be fixed within the scope of the total quantity of 52 100 t.
(4)
This Regulation is without prejudice to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine, ovine and caprine animals and swine, fresh meat or meat products from third countries (4),
HAS ADOPTED THIS REGULATION:
Article 1
The following Member States shall issue on 21 July 2004 import licences for beef and veal products, expressed as boned meat, originating in certain African, Caribbean and Pacific States, in respect of the following quantities and countries of origin:
United Kingdom:
-
500 t originating in Botswana,
-
20 t originating in Swaziland,
-
1 000 t originating in Namibia;
Germany:
-
1 100 t originating in Botswana,
-
450 t originating in Namibia.
Article 2
Licence applications may be submitted, pursuant to Article 3(2) of Regulation (EC) No 2247/2003, during the first 10 days of August 2004 for the following quantities of boned beef and veal:
Botswana:
13 876 t,
Kenya:
142 t,
Madagascar:
7 579 t,
Swaziland:
3 254 t,
Zimbabwe:
9 100 t,
Namibia:
7 885 t.
Article 3
This Regulation shall enter into force on 21 July 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 July 2004.
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COUNCIL DECISION of 23 November 1994 adopting a specific programme for research and technological development, including demonstration, in the field of information technologies (1994 to 1998) (94/802/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 130i (4) 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, by Decision No 1110/94/EC (4), the European Parliament and the Council have adopted a fourth framework programame for Community activities in the field of research, technological development and demonstration (RTD) for the period 1994 to 1998 specifying inter alia the activities to be carried out in the field of information technologies; whereas this Decision takes account of the grounds set out in the preamble to that Decision;
Whereas Article 130i (3) of the Treaty stipulates that the framework programme shall be implemented through specific programmes developed within each activity under the framework programme and that each specific programme shall define the detailed rules for its implementation, fix its duration and provide for the means deemed necessary;
Whereas the amount deemed necessary for carrying out this programme is ECU 1 911 million; whereas the appropriations for each financial year shall be laid down by the budgetary authority, subject to the availability of resources within the financial perspectives and the conditions set out in Article 1 (3) of Decision No 1110/94/EC;
Whereas information technologies increasingly underpin the competitiveness of all industry and services and, in addition, they are becoming the vehicle for an increasing number of social activities; whereas they could help to enhance the quality of life and improve working conditions; whereas they therefore require major efforts in research, the dissemination and optimization of results and training;
Whereas this programme may make a significant contribution to the stimulation of growth, to the strengthening of competitiveness and to the development of employment in the Community, as indicated in the White Paper on 'Growth, competitiveness and employment'; whereas this should be accompanied by new ways of organizing production and work so as to facilitate the acquisition of these new technologies by the greatest number of people;
Whereas the European Council of Brussels on 10 and 11 December 1993 decided, on the basis of the White Paper on 'Growth, competitiveness and employment', to implement an action plan to develop information infrastructures at European Union and Member State level; whereas information technology research provides the essential technological basis for the development of these emerging information infrastructures;
Whereas it is important that there be maximum user involvement in the various stages of RTD projects, so that their requirements are taken into account, and that they be trained to make use of the results thereof;
Whereas software, component and subsystem technologies, multimedia systems, open microprocessor systems, high-performance computing and networking, technologies for business processes, integration in manufacturing and the corresponding long-term research were considered as priorities in Decision No 1110/94/EC;
Whereas the content of the fourth framework programme for Community RTD activities was established in accordance with the subsidiarity principle; whereas this specific programme specifies the content of the activities to be carried out in accordance with this principle in the field of information technologies;
Whereas Decision No 1110/94/EC lays down that a Community action is justified if, inter alia, research contributes to the strengthening of the economic and social cohesion of the Community and the promotion of its overall harmonious development, while being consistent with the pursuit of scientific and technical quality; whereas this programme is intended to help meet these objectives;
Whereas the Community should only support RTD activities of high quality
Whereas the rules for the participation of undertakings, research centres (including the Joint Research Centre (JRC)) and universities, and the rules governing the dissemination of research results specified in the measures provided for in Article 130j of the Treaty apply to this specific programme;
Whereas provision should be made for measures to encourage the involvement of small and medium-sized enterprises (SMEs) in this programme, in particular through technology stimulation measures;
Whereas the Commission's efforts to simplify and accelerate the application and selection procedures and make them more transparent must be continued in order to promote the implementation of the programme and to facilitate the action which firms, and particularly SMEs, research centres and universities have to undertake in order to participate in a Community RTD activity;
Whereas this programme will help to strengthen synergy between the RTD activities carried out in the field of information technologies by research centres, universities and enterprises, in particular SMEs, in the Member States and between these and the corresponding Community RTD activities;
Whereas, in view of the increasing convergence between information technologies, telecommunications technologies and telematics, the programme should be implemented in close coordination with research programmes in the field of advanced communications technologies and services and telematic applications of common interest, so as to reinforce the synergetic effects thereof;
Whereas it may be appropriate to engage in international cooperation activities with international organizations and third countries for the purpose of implementing this programme;
Whereas this programme should also comprise activities for the dissemination and exploitation of RTD results , in particular towards SMEs, notably those in the Member States and regions which participate least in the programme, and activities to stimulate the mobility and training of researchers within this programme to the extent necessary for proper implementation of the programme;
Whereas an analysis should be made of possible socio-economic consequences and technological risks associated with the programme;
Whereas there is also a need to carry out research, in liaison with the targeted socio-economic research programme, firstly into the social impact of information technologies (particularly on regional planning and the organization of production and labour) and secondly into the interaction between the European citizen and the information infrastructure;
Whereas progress with this programme should be continuously and systematically monitored with a view to adapting it, where appropriate, to scientific and technological developments in this area; whereas in due course there should be an independent evaluation of the progress with the said programme so as to provide all the background information needed in order to determine the objectives of the fifth RTD framework programme; whereas at the end of this programme there should be a final evaluation of the results obtained compared with the objectives set out in this Decision;
Whereas the JRC may participate in indirect actions covered by this programme;
Whereas the Scientific and Technical Research Committee (CREST) has been consulted,
HAS ADOPTED THIS DECISION:
Article 1
A specific programme for research and technological development, including demonstration, in the field of information technologies, as set out in Annex I, is hereby adopted for the period from the date of adoption of this Decision to 31 December 1998.
Article 2
1. The amount deemed necessary for carrying out the programme is ECU 1 911 million, including a maximum of 6,9 % for the Commission's staff and administrative expenditure.
2. An indicative breakdown of this amount is given in Annex II.
3. The budgetary authority shall lay down the appropriations for each financial year, subject to the availability of resources within the financial perspectives and in accordance with the conditions set out in Article 1 (3) of Decision No 1110/94/EC, taking into account the principles of sound management referred to in Article 2 of the Financial Regulation applicable to the general budget of the European Communities.
Article 3
1. The general rules for the Community's financial contribution are laid down in Annex IV to Decision No 1110/94/EC.
2. The rules for the participation of undertakings, research centres and universities, and for the dissemination of results are specified in the measures envisaged in Article 130j of the Treaty.
3. Annex III sets out the specific rules for implementing this programme, supplementary to those referred to in paragraphs 1 and 2.
Article 4
1. In order to help ensure, inter alia, the cost-effective implementation of this programme, the Commission shall continually and systematically monitor, with appropriate assistance from independent, external experts, progress within the programme in relation to the objectives set out in Annex 1, as amplified in the work programme. It shall in particular examine whether the objectives, priorities and financial resources are still appropriate to the changing situation. It shall, if necessary, in the light of the results of this monitoring process, submit proposals to adapt or supplement this programme.
2. In order to contribute towards the evaluation of Community activities, as required by Article 4 (2) of Decision No 1110/94/EC and in compliance with the timetable laid down in that paragraph, the Commission shall have an external assessment conducted by independent qualified experts of the activities carried out within the areas covered by this programme and their management during the five years preceding this assessment.
3. At the end of this programme, the Commission shall have an independent final evaluation carried out of the results achieved compared with the objectives set out in Annex III to Decision No 1110/94/EC and Annex I to this Decision. The final evaluation report shall be forwarded to the European Parliament, the Council and the Economic and Social Committee.
Article 5
1. A work programme shall be drawn up by the Commission in accordance with the objectives set out in Annex I and the indicative financial breakdown set out in Annex II, and shall be updated where appropriate. It shall set out in detail:
- the scientific and technological objectives and research tasks,
- the implementation schedule, including dates for calls for proposals,
- the proposed financial and managerial arrangements, including specific modalities for implementing technology stimulation measures for SMEs and the general lines of other measures, including preparatory, accompanying and support measures,
- arrangements for coordination with other RTD activities carried out in this area, in particular under other specific programmes, and, where appropriate, for ensuring improved interaction with activities carried out in other frameworks, such as Eureka and COST,
- arrangements for the dissemination, protection and exploitation of the results of RTD activities carried out under the programme.
2. The Commission shall issue calls for proposals for projects on the basis of the work programme.
Article 6
1. The Commission shall be responsible for the implementation of the programme.
2. In the cases provided for in Article 7 (1), the Commission shall be assisted by a committee composed of representatives of the Member States and chaired by the representative of the Commission.
3. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The Committee shall deliver its opinion 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 proprosal 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.
4. The Commission shall adopt the measures envisaged when they are in accordance with the opinion of the Committee.
5. If the measures envisaged are not in accordance with the opinion of the Committee or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority.
6. If, on the expiry of three months from referral of the matter to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission.
Article 7
1. The procedure laid down in Article 6 (2) to 6 (6) shall apply to:
- the preparation and updating of the work programme referred to in Article 5 (1),
- the content of the calls for proposals,
- the assessment of the RTD activities proposed for Community funding and the estimated amount of the Community contribution for each activity where this is equal to or more than ECU 2 million,
- any adjustment to the indicative breakdown of the amount as set out in Annex II,
- specific modalities for the financial participation of the Community in the different activities envisaged,
- the measures and terms of reference for programme evaluation,
- any departure from the rules set out in Annex III,
- participation in any project by legal entities from third countries and international organizations.
2. Where, pursuant to the third indent of paragraph 1, the amount of the Community contribution is less than ECU 2 million, the Commission shall inform the Committee of the projects and of the outcome of their assessment.
3. The Commission shall regularly inform the Committee of progress with the implementation of the programme as a whole.
Article 8
Participation in this programme may be open on a project-by-project basis, without financial support from the Community, to legal entities established in third countries, where such participation contributes effectively to the implementation of the programme and taking into account the principle of mutual benefit.
Article 9
This Decision is addressed to the Member States.
Done at Brussels, 23 November 1994.
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COMMISSION REGULATION (EC) No 328/94 of 14 February 1994 amending Regulation (EEC) No 2294/92 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
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
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 Regulation (EEC) No 232/94 (2), and in particular Article 11 (1) thereof,
Whereas 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 (3), as last amended by Regulation (EC) No 243/94 (4), restricts producers of rape seed eligible for the compensatory payments to those producers sowing seed of specified qualities and varieties; whereas additional varieties of rape seed are now available to producers, which meet the eligibility criteria laid down; whereas these varieties should accordingly be added to the present list;
Whereas the provisions of this Regulation are in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS REGULATION:
Article 1
The varieties of rape seed 'Almea, Celt, Commanche, Desiree, Lambada, Miro, Ole, Orlong, Polo and Symbol' are hereby added to the list of varieties in Annex II to Regulation (EEC) No 2294/92.
Article 2
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, 14 February 1994.
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COMMISSION REGULATION (EC) No 2605/98 of 3 December 1998 amending Regulation (EC) No 1768/95 implementing rules on the agricultural exemption provided for in Article 14(3) of Council Regulation (EC) No 2100/94 on Community Plant Variety Rights
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2100/94 of 27 July 1994 on Community plant variety rights (1) (the Basic Regulation), as amended by Regulation (EC) No 2506/95 (2), and in particular Article 14(3) thereof,
Whereas Article 14 of the Basic Regulation provides for a derogation from Community plant variety rights for the purposes of safeguarding agricultural production (agricultural exemption);
Whereas Commission Regulation (EC) No 1768/95 (3) has established conditions to give effect to this derogation and to safeguard the legitimate interests of the breeder and of the farmer;
Whereas it was not possible at that time to specify the level of the equitable remuneration to be paid for the use made of the aforesaid derogation;
Whereas, however, it was stipulated in that Regulation that the initial level as well as the system for subsequent adaptations should be specified as soon as possible;
Whereas in the meanwhile agreements between breeders' and farmers' organisations have been concluded in several Member States, which concern, inter alia, the level of the remuneration;
Whereas it is appropriate to ensure that the agreements are made operational as Community guidelines in respect of the level of remuneration, for the respective areas and the respective species;
Whereas, in areas or for species, to which such agreements do not apply, the remuneration to be paid shall in principle be 50 % of the amounts charged for the licensed production of propagating material, modulated by an appropriate sliding scale, where such scale has been established in respect of the respective national plant variety rights;
Whereas those levels shall be reviewed by 1 January 2003 at the latest;
Whereas it is appropriate to provide for a reasonable incentive for a speedy conclusion of further agreements between breeders' and farmers' organisations for areas or species not yet covered, where they are already under preparation; whereas a level which is inferior to the one specified above and only applicable for a limited period of time may encourage certain organisations to reach finalisation of such agreements as soon as possible;
Whereas the Administrative Council of the Community Plant Variety Office has been consulted;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plant Variety Rights,
HAS ADOPTED THIS REGULATION:
Article 1
The following paragraphs 4, 5, 6 and 7 are added to Article 5 of Regulation (EC) No 1768/95:
'4. Where in the case of paragraph 2 the level of remuneration is the subject of agreements between organisations of holders and of farmers, with or without participation of organisations of processors, which are established in the Community at Community, national or regional level respectively, the agreed levels shall be used as guidelines for the determination of the remuneration to be paid in the area and for the species concerned, if these levels and the conditions thereof have been notified to the Commission in writing by authorised representatives of the relevant organisations and if on that basis the agreed levels and conditions thereof have been published in the "Official Gazette" issued by the Community Plant Variety Office.
5. Where in the case of paragraph 2 an agreement as referred to in paragraph 4 does not apply, the remuneration to be paid shall be 50 % of the amounts charged for the licensed production of propagating material as specified in paragraph 2.
However, if a Member State has notified the Commission before 1 January 1999 of the imminent conclusion of an agreement as referred to in paragraph 4 between the relevant organisations established at national or regional level, the remuneration to be paid in the area and for the species concerned shall be 40 % instead of 50 % as specified above, but only in respect of the use of the agricultural exemption made prior to the implementation of such agreement and not later than 1 April 1999.
6. Where in the case of paragraph 5 the farmer has made use, in the relevant period, of the agricultural exemption at a ratio of more than 55 % of the total material of the relevant variety used for his production, the level of the remuneration to be paid in the area and for the species concerned shall be the one which would apply in respect of such a variety if it was protected in the relevant Member State under its national system of plant variety rights, if a national system exists which has established such level, and provided that that level is more than 50 % of the amounts charged for the licensed production of propagating material as specified in paragraph 2. In the absence of such level under the national scheme, the provisions of paragraph 5 shall apply irrespective of the ratio of use.
7. By 1 January 2003 at the latest, the provisions of paragraph 5, first subparagraph, and of paragraph 6 shall be reviewed in the light of experiences gained under this Regulation and of developments of the ratio referred to in paragraph 3, with a view to their possible adaptation, by 1 July 2003, as may be necessary to establish or to stabilise the reasonably balanced ratio, stipulated in the aforesaid paragraph, in the whole or part of the Community.`
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, 3 December 1998.
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COMMISSION REGULATION (EEC) No 3743/92 of 23 December 1992 re-establishing the levying of the customs duties applicable to products of CN code 2933 71 00 originating in Poland, to which the tariff ceilings of Council Regulation (EEC) No 521/92 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 521/92 of 27 February 1992 opening and providing for the administration of Community tariff quotas and ceilings for certain agricultural and industrial products originating in Hungary, Poland and the Czech and Slovak Federal Republic (CSFR) (1), and in particular Article 3 thereof,
Whereas, in pursuance of Article 1 of that Regulation, Hungary, Poland and the Czech and Slovak Federal Republic (CSFR) shall benefit from preferential tariff arrangements, in particular the preferential tariff ceilings laid down in column 5 of Annex I of that Regulation; whereas, under Article 3 of that Regulation, as soon as the ceilings have been reached, the Commission may adopt a Regulation re-establishing the customs duties applicable to the third countries in question until the end of the calendar year;
Whereas that ceiling was reached by charges of imports of the products listed in the Annex, originating in Poland to which the tariff preferences apply;
Whereas, it is appropriate to re-establish the levying of customs duties with respect to this country for the products in question,
HAS ADOPTED THIS REGULATION:
Article 1
As from 27 December 1992, the levying of customs duties, suspended for 1992 in pursuance of Regulation (EEC) No 521/92, shall be re-established on imports into the Community of the products listed in the Annex, originating in Poland.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 December 1992.
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Commission Regulation (EC) No 2119/2003
of 2 December 2003
amending Council Regulation (EC) No 1210/2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96(1), as amended by Regulation (EC) No 1799/2003(2), and in particular Article 11(b), thereof,
Whereas:
(1) Annex III to Regulation (EC) No 1210/2003 lists the natural and legal persons, public bodies, corporations, agencies and entities of the previous government of Iraq covered by the freezing of funds and economic resources under that Regulation.
(2) On 21 November 2003, the Sanctions Committee established by Resolution 661(1990) of the UN Security Council decided to amend the list of natural and legal persons, public bodies, corporations, agencies and entities of the previous government of Iraq to whom the freezing of funds and economic resources should apply. Therefore, Annex III should be amended accordingly.
(3) In order to ensure that the measures provided for in this Regulation are effective, this Regulation must enter into force immediately,
HAS ADOPTED THIS REGULATION:
Article 1
Annex III to Regulation (EC) No 1210/2003 is hereby replaced by the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 December 2003.
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Commission Decision
of 29 May 2001
amending for the seventh time Decision 2001/223/EC concerning certain protection measures with regard to foot-and-mouth disease in the Netherlands
(notified under document number C(2001) 1548)
(Text with EEA relevance)
(2001/408/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market(1), as last amended by Directive 92/118/EEC(2), and in particular Article 10 thereof,
Having regard to Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market(3), as last amended by Directive 92/118/EEC, and in particular Article 9 thereof,
Whereas:
(1) Following the reports of outbreaks of foot-and-mouth disease in the Netherlands, the Commission adopted Decision 2001/223/EC concerning certain protection measures with regard to foot-and-mouth disease in the Netherlands(4), as last amended by Decision 2001/389/EC(5).
(2) The foot-and-mouth disease situation in certain parts of the Netherlands is liable to endanger the herds in other parts of the territory of the Netherlands and in other Member States in view of the placing on the market and trade in live biungulate animals and certain of their products. However, the last case was reported on 21 April 2001.
(3) In accordance with Article 9 of Council Directive 85/511/EEC(6) introducing Community measures for the control of foot-and-mouth disease, as last amended by the Act of Accession of Austria, Finland and Sweden, the restrictions applied to the areas around the outbreaks in Ee-Anjum and Oosterwolde have been lifted.
(4) In the light of the disease evolution it appears therefore appropriate to further adjust the regionalisation which requires to adapt the provisions on slaughter of animals from the areas listed in Annex I in slaughterhouses situated in these areas for local consumption and to make provisions for the movement of susceptible animals and their germinal products.
(5) Furthermore, it is appropriate to remove restrictions on the movement of equidaes situated in the area listed in Annex I.
(6) Commission Decision 2001/327/EC(7), as last amended by Decision 2001/394/EC(8), concerns restrictions on the movement of animals of susceptible species with regard to foot-and-mouth disease.
(7) Commission Decision 2001/246/EC(9), as amended by Decision 2001/279/EC(10), lays down the conditions for the control and eradication of foot-and-mouth disease in the Netherlands in application of Article 13 of Directive 85/511/EEC.
(8) At the meeting of the Standing Veterinary Committee of 23 May 2001 the Netherlands reiterated in relation to the proposed amendments of Decision 2001/223/EC that:
- continuous controls will be carried out on traffic crossing from the areas listed in Annex I to the areas listed in Annex II and moreover to the rest of the country in order to prevent movement of live susceptible animals,
- meat destined for intra-Community trade and export will be completely separated from meat bearing the health mark provided for in Decision 2001/305/EC, and will come from establishments where no meat bearing the health mark provided for in Decision 2001/305/EC is present,
(9) The situation shall be reviewed at the meeting of the Standing Veterinary Committee scheduled for 5 and 6 June 2001 and the measures adapted where necessary.
(10) The measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
Commission Decision 2001/223/EC is amended as follows:
1. In Article 2(2)(e), the first indent is replaced by the following: "- the meat is derived from animals of susceptible species originating in areas listed in Annex I,"
2. Article 12 is replaced by the following: "Article 12
1. Without prejudice to Council Directives 88/407/EEC, and derogating from the provisions in Article 6(2), frozen bovine semen collected after the date of 20 February 2001 may be subject to intra-Community trade under the following conditions:
(a) The semen complies with one of the following requirements:
- The semen has been collected between 20 February and 18 May 2001 from animals which have been continuously resident during this period in a collection centre situated in the provinces of Noord-Holland, Zuid-Holland, Zeeland, Noord-Brabant or Limburg; and the following conditions are met:
- the collection centre is situated in an area where there has been no outbreak of foot-and-mouth disease within a radius of 30 km around the centre for the past 12 months;
- no animal in the centre has been vaccinated against foot-and-mouth disease;
- all animals of susceptible species in the collection centre have undergone a clinical examination for the detection of foot-and-mouth disease carried out under the responsibility of the official veterinarian with negative result in each case.
- The semen has been collected between 20 February and 31 May 2001 from animals which have been continuously resident during this period in a collection centre situated in the provinces of Drenthe, Groningen, Friesland, Utrecht, Flevoland, Overijssel or Gelderland and the following conditions are met:
- the collection centre has not been situated in a zone established in accordance with Article 9 of Directive 85/511/EEC;
- the collection centre has not been situated in a vaccination zone established in application of Decision 2001/246/EC, as amended by Decision 2001/279/EC;
- the collection centre is situated in an area where there has been no outbreak of foot-and-mouth disease within a radius of 30 km around the centre for the past 12 months;
- no animal in the centre has been vaccinated against foot-and-mouth disease;
- all animals of susceptible species in the collection centre have undergone a clinical examination for the detection of foot-and-mouth disease carried out under the responsibility of the official veterinarian with negative result in each case;
- all animals of susceptible species in the collection centre have undergone with negative result in each case a serological test for the detection of antibodies against the foot-and-mouth disease virus, carried out on samples taken under the responsibility of the official veterinarian.
(b) Frozen semen in conformity with the provisions in paragraph (a) shall be subject to the certification requirements in Article 6(4).
2. Without prejudice to Council Directive 89/556/EEC and derogating from the provisions in Article 6(2) frozen bovine embryos collected after the date of 20 February 2001 may be subject to intra-Community trade under the following conditions:
(a) The embryos comply with one of the following requirements:
- The embryos have been collected between 20 February and 18 May 2001 from donor bovine animals which have been continuously resident during this period on holdings in the provinces of Noord-Holland, Zuid-Holland, Zeeland, Noord-Brabant or Limburg and the following conditions are met:
- the holdings are situated in an area where there has been no outbreak of foot-and-mouth disease within a radius of 30 km around the holding for the past 12 months;
- no animal on these holdings has been vaccinated against foot-and-mouth disease;
- all animals of susceptible species on these holdings have undergone a clinical examination for the detection of foot-and-mouth disease carried out under the responsibility of the official veterinarian with negative result in each case.
- The embryos were collected between 20 February and 31 May 2001 from donor bovine animals which have been continuously resident during this period on holdings situated in the provinces of Drenthe, Groningen, Friesland, Utrecht, Flevoland, Overijssel or Gelderland and the following conditions are met:
- the holdings have not been situated in a zone established in accordance with Article 9 of Directive 85/511/EEC;
- the holdings have not been situated in a vaccination zone established in application of Decision 2001/246/EC as amended by Decision 2001/279/EC;
- the holdings are situated in an area where there has been no outbreak of foot-and-mouth disease within a radius of 30 km around the centre for the past 12 months;
- no animal on any of the holdings where the donor animal has been resident during the period referred to in the second indent has been vaccinated against foot-and-mouth disease;
- the donor bovine animal has undergone with negative result a serological test for the detection of antibodies against the foot-and-mouth disease virus, carried out on samples taken under the responsibility of the official veterinarian.
(b) Frozen embryos in conformity with the provisions in paragraph (a) shall be subject to the certification requirements in Article 6(5)."
3. Article 12a is replaced by the following: "Article 12a
1. The Netherlands shall ensure that dispatch to other Member States of live animals susceptible to foot-and-mouth disease is prohibited from the areas of its territory not listed in Annex I or Annex II.
2. Derogating from the provisions in paragraph 1, the competent authorities of the place of departure may authorise the transport of live bovine and porcine animals from one single holding situated in the provinces of Friesland, Groningen, Drenthe and Flevoland directly to a slaughterhouse in another Member State for immediate slaughter, subject to notification to the central veterinary authorities of the place of destination and any Member State of transit.
3. Derogating from the provisions in paragraph 1, the competent authorities of the place of departure may authorise the transport to other Member States of animals of the bovine and porcine species from the areas of the Netherlands situated in the provinces of Noord-Holland, Zuid-Holland, Zeeland, Noord-Brabant, Limburg, and in the part of the province of Gelderland south of the river Rijn-Waal-Merwede between the border with Germany and the border with the province Zuid-Holland, and in the part of the province of Utrecht situated west of highway A27, subject to notification to the central veterinary authorities of the place of destination and any Member State of transit."
4. The date in Article 14 is replaced by "29 June 2001".
5. In Annex I the words "The protection and surveillance zone Oene-Oosterwolde-Kootwijkerbroek, including the vaccination zone Noord-Veluwe, in the provinces of Gelderland, Flevoland, Utrecht and Overijssel, and the protection and surveillance zone in the provinces of Friesland and Groningen."
are replaced by "The surveillance zone Oene-Kootwijkerbroek, including the vaccination zone Noord-Veluwe, in the provinces of Gelderland, Utrecht and Overijssel."
6. In Annex II the words "- The province of Drenthe;
- The provinces of Friesland and Groningen, except the areas of these provinces listed in Annex I;
- The provinces of Overijssel and Flevoland, except the areas of these provinces listed in Annex I;
- The province of Utrecht east of the highway A27, except the areas of this province listed in Annex I;
- The areas in the province of Gelderland situated north of the river Rijn-Waal-Merwede between the border with Germany and the border with the province Zuid-Holland, except the areas of this province listed in Annex I."
are replaced by: "- The provinces of Overijssel, except the areas of this province listed in Annex I;
- The province of Utrecht east of the highway A27, except the areas of this province listed in Annex I;
- The areas in the province of Gelderland situated north of the river Rijn-Waal-Merwede between the border with Germany and the border with the province Zuid-Holland, except the areas of this province listed in Annex I."
Article 2
This Decision shall come into force on 29 May 2001.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 29 May 2001.
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COUNCIL DECISION of 29 November 1995 on the equivalence of seed potatoes produced in third countries (95/513/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 66/403/EEC of 14 June 1966 on the marketing of seed potatoes (1), and in particular Article 15 (1) thereof,
Having regard to the proposal from the Commission,
Whereas there are rules on the official control of seed potatoes in Switzerland;
Whereas the abovementioned rules provide that basic seed and certified seed potato may be officially certified and their containers officially closed in accordance with the UNECE standard for seed potatoes recommended by the Working Party on Standardization of Perishable Produce and Quality Development of the Economic Commission for Europe of the United Nations;
Whereas an examination of these rules and the manner in which they are applied in Switzerland have shown that the conditions governing seed potatoes harvested and controlled in this country afford the same assurances as regards their characteristics and the arrangements for their inspection, for ensuring identity, for marking and for control, as do the conditions applicable to seed potatoes harvested and controlled within the Community;
Whereas Decision 81/956/EEC (2), which established equivalence for seed potato produced in Switzerland, expired on 30 June 1995; whereas a new Decision is therefore necessary;
Whereas this Decision does not prevent Community findings from being revoked if it becomes apparent that the conditions on which such findings are based are no longer fulfilled; whereas, to this end, further practical information on seed potatoes produced in the abovementioned countries should be obtained by growing and checking samples of such seed within the framework of the Community comparative tests;
Whereas this Decision does not affect the requirements which Member States establish under Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of organisms harmful to plants or plant products (3),
HAS ADOPTED THIS DECISION:
Article 1
It is hereby declared that, where the conditions laid down in Part II of the Annex hereto are satisfied, seed potatoes which are harvested in the country specified in Part I of the Annex hereto and officially controlled by the Authorities listed therein and which belong to the categories specified therein are equivalent to seed patatoes of corresponding categories harvested within the Community and comply with Directive 66/403/EEC.
Article 2
This Decision shall apply from 1 July 1995 to 30 June 2000.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 29 November 1995.
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COMMISSION DECISION of 24 November 1995 authorizing Member States temporarily to take additional measures against the dissemination of Pseudomonas solanacearum (Smith) Smith as regards the Kingdom of the Netherlands (95/506/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (1), as last amended by Directive 95/41/EC (2), and in particular Article 15 (3) thereof,
Whereas, where a Member State considers that there is an imminent danger of the introduction into its territory of Pseudomonas solanacearum (Smith) Smith, the cause of potato brown rot, from another Member State, it may temporarily take any additional measures necessary to protect itself from that danger;
Whereas the Kingdom of the Netherlands informed the other Member States and the Commission on 3 October 1995 that some samples of potatoes originating in that country were identified as infected by Pseudomonas solanacearum; whereas complementary reports supplied by the Netherlands indicated that more samples of the 1995 potato production showed infection by Pseudomonas solanacearum;
Whereas Sweden, Italy and Denmark, on the basis of the abovementioned information from the Netherlands, had adopted on 27 October 1995, 6 November 1995 and 3 November 1995, respectively, certain additional measures applicable to potatoes originating in the Netherlands, with a view to strengthening protection against the introduction of Pseudomonas solanacearum from the Netherlands;
Whereas Greece, Portugal, Finland and France have confirmed the intention to adopt similar additional measures applicable to potatoes originating in the Netherlands;
Whereas these additional measures include special testing requirements;
Whereas it has not yet been possible to identify the source of contamination nor to determine the extent thereof in the Netherlands;
Whereas it is therefore justified for the Member States to adopt additional measures to protect themselves against that danger;
Whereas additional measures have to take into account the production and distribution structures in the Netherlands, as well as the reduced risk involved in potatoes for which it is ensured that they are not planted and that they do not come directly or indirectly into contact with potatoes to be planted;
Whereas the additional measures adopted or about to be adopted by the abovementioned Member States should be brought into line with Community safeguard measures at least in respect of the main types of potato commodities such as seed potatoes, ware potatoes for consumption and potatoes for industrial processing;
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
1. The Kingdom of the Netherlands shall ensure for potatoes of the 1995 crop, until 30 June 1996 for seed potatoes and until 30 September 1996 for other potatoes, that the conditions laid down in paragraph 2 are met, in addition to those laid down in Directive 77/93/EEC and in particular Annex IV, part A, Section II, points 19.1 and 19.5 thereof, if tubers of potatoes (Solanum tuberosum L.) originating in the Netherlands are to be moved into other Member States and within the Netherlands.
2. For the purpose of paragraph 1, the following conditions shall be met:
(a) The tubers:
(aa) in the case of seed potatoes originating in areas where Pseudomonas solanacearum is known to occur,
(aaa) grown on places of production confirmed to be infested by Pseudomonas solanacearum using the testing and sampling procedure referred to in (bb), shall not be used as seed potatoes and shall, under the control of the responsible official body referred to in Directive 77/93/EEC, when belonging to:
- infected lots and all other lots from the same field: be destroyed in the Netherlands, by incineration, by appropriate deep burial or by industrial processing at a processing premises with officially approved facilities for waste disposal, such that the risk of spreading Pseudomonas solanacearum is obviated,
- all other lots: be destroyed or otherwise disposed of within the Netherlands in such a way that it is established that there is no identifiable risk of Pseudomonas solanacearum spreading;
(aab) grown on places of production included in the official investigation carried out in the Netherlands in order to determine the extent of the infection by Pseudomonas solanacearum, shall be placed under the control of the responsible official body such that the said body shall subject the tubers to the testing and sampling procedure referred to in (bb), and when belonging to:
- lots for which infection is confirmed, these lots as well as all other tubers, grown on the relevant place of production shall be treated as laid down in (aaa) first and second indents,
- lots grown in places of production covered by (aab), other than those referred to in the first indent and tested negative for Pseudomonas solanacearum and for which it can be officially established that there has been no clonal or contact relationship with any potatoes found to be infected by Pseudomonas solanacearum or for which there has been irrigation with water from any source used in common with places of production confirmed or suspected to be infested with Pseudomonas solanacearum, may be used as seed potatoes,
- lots other than those referred to in (aab) first and second indents shall be destroyed or otherwise disposed of as referred to in (aaa), second indent;
(bb) in the case of seed potatoes originating in areas other than those referred to in (aa) or grown in places of production not covered by (aaa) and (aab), shall have been subjected prior to the issuing of the required plant passport to official or unofficial supervised testing in accordance with quarantine procedure No 26 for Pseudomonas solanacearum as established by the European and Mediterranean Plant Protection Organization (EPPO) (1) or by some other procedure approved in accordance with the procedure laid down in Article 16a of Directive 77/93/EEC on a representative sample of at least 200 tubers per lot and per 25 tonnes or less drawn officially, and shall have been found free, in this testing, from Pseudomonas solanacearum;
(cc) in the case of ware potatoes for consumption and potatoes for fodder originating in areas where Pseudomonas solanacearum is known to occur,
(cca) grown on places of production confirmed to be infested by Pseudomonas solanacearum using the testing and sampling procedure referred to in (bb), shall be placed under the control of the responsible official body such that the said trody shall subject the tubers to the testing and sampling procedure referred to in (bb), and when belonging to:
- infected lots and all other lots from the same field, shall be destroyed, as referred to in (aaa), first indent;
- other lots, shall be destroyed or otherwise disposed of as referred to in (aaa), second indent;
(ccb) grown on places of production included in the investigation as referred to in (aab), shall be placed under the control of the responsible official body such that the said body shall subject the tubers to the testing and sampling procedure referred to in (bb) and when belonging to - lots for which infection is confirmed, these lots as well as all other tubers grown on the relevant place of production shall be treated as laid down in (aaa) first and second indents,
- lots grown in places of production covered by (ccb), other than those referred to in the first indent and tested negative for Pseudomonas solanacearum and for which it can be officially established that there has been no clonal or contact relationship with any potatoes found to be infected by Pseudomonas solanacearum or for which there has been irrigation with water from any source used in common with places of production confirmed or suspected to be infested by Pseudomonas solanacearum shall be accompanied, when moved from the places of production, by a document stating that the tubers belonging to the lot, have been tested and found free from Pseudomonas solanacearum,
- lots other than those referred to in (ccb) first and second indents shall be destroved or otherwise disposed of as referred to in (aaa), second indent;
(dd) in the case of ware potatoes for consumption and potatoes for fodder originating in areas other than those referred to in (cc), shall be monitored during grading at packing stations or before delivery to the final consumer in the case of potatoes for fodder, by means of cutting and inspecting of waste tubers, and testing of suspicious tubers for the presence of Pseudomonas solanacearum in accordance with the provisions referred to in (bb);
(ee) in the case of potatoes for industrial processing originating in areas where Pseudomonas solanacearum is known to occur, grown on places of production confirmed to be infested by Pseudomonas solanacearum using the testing and sampling procedure referred to in (bb) or on places of poduction included in the investigation as referred to in (aab), shall be subjected to the testing as referred to in (bb) and;
- if found free from Pseudomonas solanacearum in this test, shall be intended for direct and immediate delivery to a processing plant with officially approved facilities for waste disposal. When these facilities are situated in a Member State other than the Netherlands, prior to the delivery referred to above, there shall be appropriate communication between the responsible official bodies concerned to ensure a proper approval of the facilities concerned and proper monitoring as referred to in Article 1.3, first indent,
- if found infected, be destroyed, as referred to in (aaa), first indent;
(ff) in the case of potatoes for industrial processing originating in areas other than those referred to in (ee) shall be monitored, inspected and tested, where appropriate, before delivery to a processing plant;
(b) the selection of the places of production to be included in the investigation referred to in (a) shall be made according to the following criteria:
- growing or have grown, potatoes which are clonally related to potatoes found to be infected with Pseudomonas solanacearum,
- growing or have grown, potatoes which have been placed under official control because of the suspected occurrence of Pseudomonas solanacearum,
- growing or have grown, potatoes which are clonally related to potatoes that have been grown on places of production suspected to be infested with Pseudomonas solanacearum,
- location in the neighbourhood of infested places of production, including places of production sharing production equipment and facilities directly or through a common contractor,
- places of production using irrigation water from any souce used in common with places of production confirmed or suspected to be infested with Pseudomonas solanacearum;
(c) without prejudice to the reporting requirements under Article 15 of Directive 77/93/EEC, the Netherlands shall notify to the Commission and to the other Member States, full details of:
- the places of production confirmed to be infested as referred to under (a), as soon as infestation is confirmed,
- the delimitation of the area infested with Pseudomonas solanacearum, on completion of the investigation referred to in (b), and without prejudice to the results of the survey established under Article 3.
Article 2
The Member States of destination:
- shall subject consignments of potatoes for industrial processing from the Netherlands to official monitoring to ensure direct and immediate delivery to the intended processing plant;
- shall notify to the other Member States and the Commission the type of facilities officially approved for the purposes of the first indents of Article 1 (2) (a) (aaa), (aab) and (ee);
- may subject consignments of potatoes from the Netherlands to testing as described in Article 1 (2) (a) (bb);
- may take further appropriate steps to carry out official monitoring in respect of potatoes originating in the Netherlands and moved into their territory.
Article 3
1. Member States shall conduct official surveys for Pseudomonas solanacearum on tubers of potatoes, originating in their country, for the confirmation of absence of Pseudomonas solanacearum, using the testing and sampling method referred to in Article 1 (2) (a) (bb).
The survey conducted by the Netherlands in accordance with paragraph 1 first sentence shall be monitored by the experts referred to in Article 19 (a) of Directive 77/93/EEC under the procedure laid down therein. By 1 January 1996 a first report of the results of the survey conducted in the Netherlands and of the said monitoring shall be submitted to the other Member States and to the Commission.
The results of the surveys provided for in paragraph 1 first sentence shall be notified to the other Member States and to the Commission by 1 May 1996.
2. For the survey referred to in paragraph 1, Member States shall, where appropriate, take into account the relevant information which will be submitted to them by the Netherlands, in accordance with the provision laid down in paragraph 3.
3. For the purpose of paragraph 2, the Netherlands shall submit by 15 December 1995 to the other Member States and to the Commission information on seed potatoes grown in the Netherlands from the 1994 and 1995 crop and moved into the relevant Member State, indicating the plant passport number, the variety, the quantity as well as the name and address of the consignee. These provisions are without prejudice, in respect of personal data, to Community and national legislation on the protection of individuals with regard to the processing and free movement of personal data.
Article 4
The Member States shall adjust the measure which they have adopted with a view to protecting themselves against the introduction and the spread of Pseudomonas solanacearum, in such a manner that the measures comply with Articles 1 and 2.
Article 5
This Decision is addressed to the Member States.
Done at Brussels, 24 November 1995.
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COMMISSION REGULATION (EEC) No 502/93 of 4 March 1993 determining the loss of income and the premiums applicable per ewe and per female goat in the Member States and the specific aid for sheep and goat farming in certain less-favoured areas of the Community for the 1992 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3013/89 of 25 September 1989 on the common organization of the market in sheepmeat and goatmeat (1), as last amended by Regulation (EEC) No 363/93 (2), and in particular Article 5 (6) thereof,
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 (3), as amended by Regulation (EEC) No 3714/92 (4), and in particular Article 13 thereof,
Whereas Article 5 (1) and (5) of Regulation (EEC) No 3013/89 provides for a premium to be granted to compensate for any loss of income sustained by producers of sheepmeat and, in certain areas, of goatmeat; whereas those areas are defined in Annex I to Regulation (EEC) No 3013/89 and in Article 1 of Commission Regulation (EEC) No 1065/86 of 11 April 1986 determining the mountain areas in which the premium for goatmeat producers is granted (5), as amended by Regulation (EEC) No 3519/86 (6); whereas Article 5 (8) of Regulation (EEC) No 3013/89 provides for the possibility of premiums being granted to producers holding females of the ovine species of certain mountain breeds other than eligible ewes in certain areas; whereas those ewes and those areas are defined in the Annex to Council Regulation (EEC) No 872/84 of 31 March 1984 laying down the general rules for the granting of premiums to sheepmeat producers (7), as last amended by Regulation (EEC) No 1970/87 (8);
Whereas, pursuant to Article 5 (6) of Regulation (EEC) No 3013/89, the Member States were authorized by Regulation (EEC) No 1830/92 (9) to pay an initial advance and by Commission Regulation (EEC) No 3249/92 (10) to pay a second advance to sheepmeat and goatmeat producers; whereas the definitive premiums to be paid in respect of the 1992 marketing year must thus be fixed;
Whereas Article 23 (4) of Regulation (EEC) No 3013/89 provides for premiums to be paid per ewe and per region; whereas the amount, payable to producers of heavy lambs in respect of the 1992 marketing year is obtained by multiplying the loss of income by a coefficient expressing the annual average production of heavy lambmeat per ewe producing such lambs, expressed in terms of 100 kg carcase weight, per region; whereas, in accordance with the abovementioned Regulation, the premium per ewe for producers of light lambs and per female goat for the 1992 marketing year should be 80 % of the premium for producers of heavy lambs; whereas the amount for females of the ovine species other than eligible ewes should be 70 % of the abovementioned premium;
Whereas Regulation (EEC) No 363/93 extends the period of application of the transitional arrangements provided for in Article 24 (7) of Regulation (EEC) No 3013/89 for Ireland and Northern Ireland despite the fact that the United Kingdom has abolished the variable slaughter premium; whereas the premium payable per ewe applying in that area should therefore be determined;
Whereas, pursuant to Article 8 of Regulation (EEC) No 3013/89, the premium must be reduced by the impact on the basic price of the coefficient provided for in Article 8 (2) of that Regulation; whereas that coefficient was fixed provisionally by Commission Regulation (EEC) No 1829/92 of 3 July 1992 on the application of the guarantee limitation arrangements for sheepmeat and goatmeat for the 1992 marketing year (11); whereas the lack of definitive statistics for the 1992 marketing year means that the coefficient cannot be corrected at present; whereas a correction will be made, where applicable, in the calculation of the premium for the 1993 marketing year in accordance with the second indent of Article 8 (2) of Regulation (EEC) No 3013/89;
Whereas Regulation (EEC) No 1601/92 provides for the application from 1 July 1992 of specific measures with regard to agricultural production in the Canary Islands; whereas those measures involve the granting of a supplement to the premium payable to producers of light lambs and female goats on the same terms as those laid down for the granting of the premium provided for in Article 5 of Regulation (EEC) No 3013/89; whereas those terms provide for Spain to be authorized to pay the supplement to the premium, calculated for the 1992 marketing year on a pro rata temporis basis;
Whereas Regulation (EEC) No 1830/92 authorizes the Member States to pay the whole of the specific aid for sheep and goat farming in certain less-favoured areas of the Community, introduced by Council Regulation (EEC) No 1323/90 (1), as last amended by Regulation (EEC) No 363/93; whereas Regulation (EEC) No 3249/92 authorizes Spain to pay producers of sheep and goats located in certain less-favoured areas of the Canary Islands the whole of the specific aid, calculated on a pro rata temporis basis; whereas the abovementioned specific aid was increased by Regulation (EEC) No 363/93; whereas the amount already paid should therefore be considered an advance to be deducted from the definitive amount;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sheep and Goats,
HAS ADOPTED THIS REGULATION:
Article 1
The following differences are hereby noted between the basic prices less the impact of the coefficient provided for in Article 8 (2) of Regulation (EEC) No 3013/89 and the market prices during the 1992 marketing year for the following regions:
TABLE
Article 2
The coefficient provided for in Article 23 (4) of Regulation (EEC) No 3013/89 shall be as follows:
TABLE
Article 3
1. The premium payable per ewe in respect of the 1992 marketing year in the regions listed below shall be as follows:
TABLE
2. The premium payable per female of the caprine species and per region in areas listed in Annex I to Regulation (EEC) No 3013/89 and in Article 1 of Regulation (EEC) No 1065/86 in respect of the 1992 marketing year shall be as follows:
TABLE
3. The premium payable per female of the ovine species other than eligible ewes and per region in the areas listed in the Annex to Regulation (EEC) No 872/84 shall be as follows:
TABLE
Article 4
1. Pursuant to Article 1a of Regulation (EEC) No 1323/90, the amount which the Member States are authorized to pay in respect of the 1992 marketing year to producers of sheepmeat and goatmeat located in less-favoured areas within the meaning of Council Directive 75/268/EEC (2) within the limits and at the rates laid down in Article 5 (7) and the second indent of the second subparagraph of Article 5 (8) of Regulation (EEC) No 3013/89, shall be as follows:
- ECU 7 per ewe in the case of producers as referred to in Article 5 (2) and (4) of that Regulation,
- ECU 4,9 per ewe in the case of producers as referred to in Article 5 (3) of that Regulation,
- ECU 4,9 per female goat in the case of producers as referred to in Article 5 (5) of that Regulation,
- ECU 4,9 per female of ovine species where the second subparagraph of Article 5 (8) of that Regulation is applied.
However, the amount which Spain is authorized to pay to producers located in less-favoured areas in the Canary Islands shall be as follows:
- ECU 3,5 per ewe in the case of producers as referred to in Article 5 (2) and (4) of Regulation (EEC) No 3013/89,
- ECU 2,45 per ewe in the case of producers as referred to in Article 5 (3) of that Regulation,
- ECU 2,45 per female goat in the case of producers as referred to in Article 5 (5) of that Regulation.
2. The specific aid for sheep and goat farming in certain less-favoured areas of the Community for the 1992 marketing year fixed in Article 5 of Regulation (EEC) No 1830/92 and in Article 5 of Regulation (EEC) No 3249/92 shall be considered an advance on that specific aid, the definitive amount of which shall be as set out in paragraph 1.
Article 5
Pursuant to Article 13 (3) of Regulation (EEC) No 1601/92, the supplement to the premium for the 1992 marketing year to be granted to producers of light lambs and female goats located in the Canary Islands, within the limits and at the rates laid down in Article 5 (7) and the second indent of the second subparagraph of Article 5 (8) of Regulation (EEC) No 3013/89, shall be as follows:
- ECU 2,911 per ewe in the case of producers as referred to in Article 5 (3) of that Regulation,
- ECU 2,911 per female goat in the case of producers as referred to in Article 5 (5) of that Regulation.
Article 6
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 March 1993.
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COUNCIL REGULATION (EEC) No 3899/86
of 18 December 1986
opening and providing for the administration of a Community tariff quota for hake, frozen, whole, headless or in pieces, falling within subheading ex 03.01 B I t) 2 of the Common Customs Tariff
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 28 thereof,
Whereas Community supplies of frozen hake currently depend, to a by no means engligible degree, on imports from thrid countries; whereas it is in the Community's interest to suspend partially the Common Customs Tariff duty for the Council in question, within the Community tariff quota of an appropriate volume; whereas, in order not to call into question the development prospects of this production in the Community while ensuring an adequate supply to satisfy user industries, it is advisable to open this quota for the period until 31 January 1987 at a duty rate of 5 % and to fix the volume thereof at 3 000 tonnes for all hake species excluding the species Merluccius bilinearis;
Whereas it is necessary, in particular, to ensure to all Community importers equal and uninterrupted access to the abovementiond quota and uninterrupted application of the rates laid down for that quota establishing all imports of the products concerned into all Member States until the quota waters, been used up; whereas, however, since the quota is to cover requirements which quotas be determined with sufficient accuracy, it seems possible to avoid allocating it among the Member States, without prejudice to the drawing against the quota volume of such quantites as they may need, under conditions and according to a procedure to be specified; whereas this method of management requires clos co-operation between the Norway; States and the Commission and the latter must in particular be able to monitor the rate at which the quota is used up and inform the Member States thereof;
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, incumbent transactions concerning the administration share shares allocated to that economic union may be carried out by any one of its members,
HAS ADOPTED THIS REGULATION:
Article 1
1. From the date on which this Regulation enters into force until 31 January 1987, the Common Customs Tariff duty for hake (Merluccius spp., excluding the species Merluccius bilinearis) frozen, whole, headless or in pieces, falling within subheading ex 03.01 B I t) 2 of the Common Customs Tariff shall be suspended at a rate of 5 % within the limit of a Community tariff quota of 3 000 tonnes.
2. Within the limit of this tariff quota, the Kingdom of Spain and the Portuguese Republic shall apply customs duties calculated in accordance with the relevant provisions laid down by the 1985 Act of Accession.
3. Imports of the products in question shall not benefit from the tariff quota referred to in paragraph 1 unless the free-at-frontier price, which is determined by the Member States in accordance with Article 21 of Regulation (EEC) No 3796/81 (1), is at least equal to the reference price fixed or to be fixed by the Community for the products under consideration or the categories of the products concerned.
4. If an importer notifies an imminent importation of the product in question and requests the benefit of the quota, the Member State concerned shall inform the Commission and draw an amount corresponding to these requirements to the extent that the available balance of the reserve permits this.
5. The shares drawn pursuant to paragraph 4 shall be valid until the end of the quota period.
Article 2
1. Member States shall take all appropriate measures to ensure that their drawings pursuant to Article 1 (4) are carried out in such a way that imports may be charged without interruption against their accumulated shares of the Community quota.
2. Each Member State shall ensure that importers of the said goods have access to the quota so long as the residual balance of the quota volume allows this.
3. Member States shall charge imports of the said goods against their drawings as and when the goods are entered for free circulation.
4. The extent to which the quota has been used up shall be determined o n the basis of the imports charged in accordance with paragraph 3.
Article 3
At the request of the Commission, Member States ahll inform it of imports actually charged against the quota.
Article 4
The Member States and the Commission shall collaborate closely in order to ensure that this Regulation is complied with.
Article 5
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, 18 December 1986.
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COMMISSION DECISION
of 29 July 1983
on the implementation of the reform of agricultural structures in the Grand Duchy of Luxembourg pursuant to Council Directive 72/159/EEC
(Only the French text is authentic)
(83/405/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 72/159/EEC of 17 April 1972 on the modernization of farms (1), as last amended by Directive 82/436/EEC (2), and in particular Article 18 (3) thereof,
Whereas on 13 April 1983 the Government of Luxembourg notified the Grand-Ducal regulation of 8 March 1983 laying down for 1982 the fixing of the comparable earned income as well as certain provisions relating thereto;
Whereas under Article 18 (3) of Directive 72/159/EEC the Commission has to determine whether, having regard to the Grand-Ducal regulation of 8 March 1983, the existing provisions in Luxembourg for the implementation of Directive 72/159/EEC continue to satisfy the conditions for financial contribution by the Community;
Whereas the abovementioned Grand-Ducal regulation of 8 March 1983 is consistent with the aims and requirements of Directive 72/159/EEC;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Structure,
HAS ADOPTED THIS DECISION:
Article 1
Having regard to the Grand-Ducal regulation of 8 March 1983 the provisions concerning the implementation in the Grand Duchy of Luxembourg of Directive 72/159/EEC continue to satisfy the conditions for financial contribution by the Community to common measures as referred to in Article 15 of Directive 72/159/EEC.
Article 2
This Decision is addressed to the Grand Duchy of Luxembourg.
Done at Brussels, 29 July 1983.
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COMMISSION REGULATION (EEC) No 2169/87
of 22 July 1987
amending Regulation (EEC) No 3888/86 as regards the allocation of the quantity of preserved cultivated mushrooms which may be imported without payment of the additional amount during the period 1 January to 31 December 1987
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Act of Accession of Spain and Portugal,
Having regard to Council Regulation (EEC) No 426/86 of 24 February 1986 on the common organization of the market in products processed from fruit and vegetables (1), as last amended by Regulation (EEC) No 1928/87 (2),
Having regard to Council Regulation (EEC) No 1796/81 of 30 June 1981 on measures applicable to imports of preserved cultivated mushrooms (3), and in particular Article 6 thereof,
Whereas Article 3 of Regulation (EEC) No 1796/81 lays down that the quantity which may be imported without payment of the additional amount must be allocated between the supplier countries with due regard for traditional trade flows and new suppliers;
Whereas Article 1 of Commission Regulation (EEC) No 3888/86 (4) allocated the quantity in question for the period 1 January to 31 December 1987; whereas Article 1 of Commission Regulation (EEC) No 3433/81 (5), as last amended by Regulation (EEC) No 1887/86 (6), provided for the possibility of reviewing the tonnages on the basis of the licences granted during the first six months of the year in question; whereas the balance of licences issued up to 30 June 1987 is such as to justify a new allocation of these quantities,
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Products Processed from Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
Article 1 of Regulation (EEC) No 3888/86 is hereby replaced by the following Article:
'Article 1
The quantity fixed by Article 3 of Regulation (EEC) No 1796/81 is hereby allocated for the period 1 January to 31 December 1987:
(net weight in tonnes)
1.2.3.4.5.6 // // // // // // // Country of origin // // // // // // // China // South Korea // Taiwan // Hong Kong // Other // Importing country // // // // // // // // // // // // Belgium // // // // // // Luxembourg // 264 // - // 52 // - // - // Denmark // 855 // 20 // - // - // - // Germany // 28 933 // 460 // 2 143 // 433 // 882 // Greece // 15 // 5 // 137 // - // 20 // France // 10 // - // 18 // - // 2 // Ireland // - // - // - // - // - // Italy // - // - // 25 // - // 20 // Netherlands // 79 // - // 75 // - // - // United Kingdom // 109 // - // 168 // - // 11 // Spain // 3 // - // 10 // - // - // Portugal // - // - // - // 1 // - // // // // // (6) OJ No L 206, 30. 7. 1986, p. 20.
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, 22 July 1987.
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COUNCIL REGULATION (EC) No 1426/96 of 26 June 1996 amending Regulation (EEC) No 823/87 laying down special provisions relating to quality wines produced in specified regions
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European 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),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas certain specific traditional terms have been recognized in Germany; whereas those terms should be included in Regulation (EEC) No 823/87 (4) to ensure protection in all Member States;
Whereas, as a result of traditional practice in accordance with Spanish legislation, the term 'Manzanilla` has become equivalent to a geographical name used to designate a quality wine psr; whereas there should be an exception for this quality wines psr from the principle that the specified region from which it is obtained must be designated by its geographical name and this product should be allowed to be designated by the traditional term referred to above;
Whereas pursuant to Article 15 (4) of Regulation (EEC) No 823/87 the name of specified region attributed by a Member State to a quality wine psr may not be used for the designation of other wine-sector products; whereas in some cases, however, authorization should be given for the creation of new designations of origin whose names were previously used for certain table wines; whereas provision should also be made for a transitional period during which those names may be used concurrently to enable traditional users to adjust to the new situation;
Whereas the marketing of beverages not falling within the wine sector and of certain basic raw materials to obtain those beverages, described by means of geographical designations normally used to describe wines, could confuse consumers as to the nature and origin of the product thus described and be detrimental to the interests of wine producers; whereas, therefore, for use of the said designations should not be allowed unless there is no risk of confusion or, in the light of the experience gained, especially as regards certain beverages more closely related to the wine sector, unless the geographical designation in question has been appropriately recognized,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 823/87 is hereby amended as follows:
1. the following indents shall be added to Article 15 (2) (a):
'- "Qualitätswein garantierten Ursprungs",
- "Qualitätschaumwein garantierten Ursprungs";`
2. in Article 15 (3) second subparagraph, the following indent shall be added:
'- "Manzanilla",`;
3. the third subparagraph of Article 15 (4) shall be replaced by the following:
'Notwithstanding the first subparagraph, the Council, acting by a qualified majority on a proposal from the Commission, may decide up to 31 August 2001, to authorize that certain geographical names traditionally used to describe a table wine which have become the name of a specified region may continue to be used also to describe table wines for a period of at most three wine years.`;
4. the first subparagraph of Article 15 (5) shall be replaced by:
'5. The following names and terms:
- the name of a vine variety as referred to in Article 4,
- a traditional specific term referred to in paragraph 2,
or
- an additional traditional term, provided that it is attributed by a Member State for the description of a wine under the Community provisions adopted pursuant to Article 72 (1) of Regulation (EEC) No 822/87
may not be used for the description, presentation and advertising of a beverage other than a wine or grape must unless there is no risk of confusion as to the nature, origin or source and composition of such beverage.
The use of a name or a term as referred to in the first subparagraph or of the words "Hock", "Claret", "Liebfrauenmilch" and "Liebraumilch", even when accompanied by any word such as "kind", "type", "style", "imitation" or other similar expression, shall be prohibited with respect to the description and presentation of:
- an item falling within Code CN 2206, except where the item in question actually comes from the place so designated;
- an item marketed with clear instructions for the consumer to obtain from it a beverage in imitation of wine (home-made wine); however, the name of a vine variety may be used if the item in question is actually obtained from such variety unless the name gives rise to confusion with the name of a specified region or geographical unit used to describe a quality wine psr.
The names:
- of a specified region as referred to in Article 3 included on the list drawn up pursuant to Article 1, third paragraph,
- of a geographical unit which is smaller than the specified region, provided that this name is attributed by a Member State for the description of a wine under the Community provisions adopted pursuant to Article 72 (1) of Regulation (EEC) No 822/87
may not be used for the description, presentation and advertising of a beverage other than a wine or grape must unless:
(a) in respect of products covered by codes CN 2009, 2202, 2205, 2206, 2207, 2208 and 2209, and products made from wine-sector raw materials but not referred to in Article 1 (2) of Regulation (EEC) No 822/87, the above names and terms are recognized in the Member State of origin of the product and unless such recognition is compatible with Community law;
(b) in respect of beverages other than those referred to in (a), unless there is no risk of confusion as to the nature, origin or source and composition of such beverage.
The recognition referred to in point (a) of the third subparagraph must be given by 31 December 1999 at the latest; before that date and until such time as recognition is given, the product concerned shall continue to be subject to the rule referred to in point (b) of the third subparagraph.`
Article 2
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 Luxembourg, 26 June 1996.
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COMMISSION DECISION
of 27 March 2008
amending Decision 2005/779/EC concerning animal health protection measures against swine vesicular disease in Italy
(notified under document number C(2008) 1092)
(Text with EEA relevance)
(2008/297/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (1), and in particular Article 10(4) thereof,
Whereas:
(1)
Commission Decision 2005/779/EC of 8 November 2005 concerning animal health protection measures against swine vesicular disease in Italy (2) was adopted in response to the presence of that disease in Italy. That Decision lays down animal health rules as regards swine vesicular disease for regions of that Member State that are recognised as free from swine vesicular disease and those not recognised as free from that disease.
(2)
Following outbreaks of swine vesicular disease in Italy during 2007 in certain provinces located in regions recognised as free from that disease, that Member State has taken measures in accordance with Council Directive 92/119/EEC of 17 December 1992 introducing general Community measures for the control of certain animal diseases and specific measures relating to swine vesicular disease (3).
(3)
Additionally, Italy has suspended the disease-free status of such provinces where the risk of the further spread of vesicular swine disease is probable. Italy has also prohibited the movement of pigs from those provinces to other regions of Italy and to other Member States.
(4)
Those measures taken by Italy have proven to be effective. It is therefore appropriate to amend Decision 2005/779/EC in order to provide for the suspension of the disease-free status of a province located in a region recognised as free from swine vesicular disease, in order to enable Italy to respond quickly and transparently in the event of any outbreaks of that disease in regions recognised as free from that disease. The possibility to suspend should therefore be limited in time and, if the risk continues following the expiry of the period set, a Decision should be taken in accordance with Article 10(4) of Directive 90/425/EEC.
(5)
In addition, assembly centres for pigs are often a primary source for the spread of swine vesicular disease. Accordingly, Italy has taken measures to improve control of the movements of pigs from assembly centres and to prevent any possible spread of that disease. Such measures, as regards surveillance of assembly centres for pigs, and in particular as regards the testing and sampling to be carried out, should therefore also be increased.
(6)
Decision 2005/779/EC should therefore be amended accordingly.
(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
Decision 2005/779/EC is amended as follows:
1.
the heading of Chapter II is replaced by the following:
‘RECOGNITION OF REGIONS, PROVINCES AND HOLDINGS IN ITALY AS FREE FROM SWINE VESICULAR DISEASE’;
2.
the following Article 3a is inserted:
‘Article 3a
Suspension of the recognition of provinces in a region recognised as free
1. Italy shall ensure that where an outbreak of swine vesicular disease occurs in a province in a region recognised as free from swine vesicular disease, the recognition of that province as free from vesicular swine fever is immediately suspended unless the origin of the infection is clearly established as a secondary outbreak and the epidemiological enquiry carried out in accordance with Article 8 of Directive 92/119/EEC as regards the outbreak has demonstrated that there is a negligible risk of further spread of that disease.
2. The measures provided for in Articles 7, 8 and 9 shall apply to the province referred to in paragraph 1.
3. Italy may once more recognise the province referred to in paragraph 1 as free from swine vesicular disease if the following conditions are fulfilled:
(a)
all holdings located in the province shall have been submitted on two occasions at an interval of 28 to 40 days, to a sampling for serological testing on a number of pigs sufficient to detect a prevalence of swine vesicular disease of 5 % with a confidence interval of 95 %, and the results have been negative;
(b)
the measures in the protection and surveillance zones established around outbreaks of swine vesicular disease in the province are no longer applied in accordance with point 7(3) and (4) and point 8(3)(b) of Annex II to Directive 92/119/EEC;
(c)
the results of the epidemiological enquiry carried out in accordance with Article 8 of Directive 92/119/EEC as regards outbreaks of swine vesicular disease have not demonstrated any risk for further spread of that disease.
4. Italy shall immediately communicate to the Commission and the other Member States any measures taken pursuant to paragraphs 1, 2 and 3 and publish those measures. The suspension referred to in paragraph 1 shall not exceed six months.’;
3.
in Article 5, paragraph 3 is replaced by the following:
‘3. At assembly centres for pigs, sampling shall be carried out at monthly intervals:
(a)
for serological testing on a number of pigs sufficient to detect a prevalence of swine vesicular disease of 5 % with a confidence interval of 95 %;
(b)
for virological testing of faeces to be collected in every pen where pigs are or have been kept.’;
4.
in Article 6, paragraph 4 is replaced by the following:
‘4. At assembly centres for pigs, sampling shall be carried out at monthly intervals:
(a)
for serological testing on a number of pigs sufficient to detect a prevalence of swine vesicular disease of 5 % with a confidence interval of 95 %;
(b)
for virological testing of faeces to be collected in every pen where pigs are or have been kept.’
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 27 March 2008.
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COMMISSION REGULATION (EEC) No 2091/93 of 27 July 1993 fixing, for the 1993/94 marketing year, the threshold prices for rice
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1418/76 of 21 June 1976 on the common organization of the market in rice (1), as last amended by Regulation (EEC) No 1544/93 (2), and in particular Articles 14 (5) and 15 (4) thereof,
Whereas, under Article 14 (2) of Regulation (EEC) No 1418/76, the threshold price for husked rice calculated for Rotterdam must be fixed in such a way that, on the Duisburg market, the selling price for imported husked rice corresponds to the target price; whereas this aim is attained when the components referred to in the second subparagraph of paragraph 2 of the said Article are deducted from the target price;
Whereas, pursuant to Article 14 (3) of the said Regulation, the threshold prices for milled rice are calculated by adjusting the threshold price for husked rice, account being taken of the monthly increases to which it is subject, on the basis of the conversion rates, processing costs and the value of by-products and by increasing the amounts thus obtained by an amount for the protection of the industry;
Whereas the amount for the protection of the industry was fixed by Council Regulation (EEC) No 1263/78 (3); whereas the components used for adjusting the threshold price for milled rice were fixed by Commission Regulation No 467/67/EEC (4), as last amended by Regulation (EEC) No 2325/88 (5);
Whereas, under Article 15 (1) of Regulation (EEC) No 1418/76 the threshold price for broken rice must be set between a lower limit of 130 % and an upper limit of 140 % of the threshold price for maize applicable for the said marketing year, not incorporating the monthly increases;
Whereas the threshold price applicable to maize during June will remain valid in July, August and September of the following marketing year; whereas, therefore, the threshold price for maize valid for the 1992/93, not affected by monthly increases, should be used to calculate the threshold price for broken rice valid for the first month of the 1993/94 marketing year; whereas, as a result, the threshold price for broken rice applicable in September 1993 is the same as for the 1992/93 marketing year;
Whereas Commission Regulation (EEC) No 3824/92 (6), as amended by Regulation (EEC) No 1663/93 (7), establishes the list of prices and amounts in the rice sector which are affected by the reducing coefficient of 1,013088 fixed by Commission Regulation (EEC) No 537/93 (8), as last amended by Regulation (EEC) No 1331/93 (9), with effect from the commencement of the 1993/94 marketing year, under the arrangements for automatically dismantling negative monetary graps; whereas Article 2 or Regulation (EEC) No 3824/92 provides for the resulting reduction in prices and amounts to be specified for each sector concerned and the value of these reduced prices and amounts to be fixed; whereas Council Regulation (EEC) No 1545/93 (10) fixes the paddy-rice intervention price and husked-ice target price for the 1993/94 marketing year;
Whereas the reducing coefficient should be applied to the threshold prices for rice and, for the sake of clarity, it should be incorporated directly into the calculation;
Whereas the calculations effected pursuant to these rules produce the prices indicated below;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The threshold prices for husked rice, round grain milled rice and long grain milled rice are hereby fixed at:
/* Tables: see OJ */
Article 2
The threshold price for broken rice applicable for September 1993 is hereby fixed at ECU 281,91 per tonne.
Article 3
This Regulation shall enter into force on 1 September 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 July 1993.
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COMMISSION REGULATION (EEC) No 1118/93 of 6 May 1993 re-establishing the levying of customs duties on products of categories 24 and 39 (order Nos 40.0240 and 40.0390), originating in India, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3832/90 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3832/90 of 20 December 1990 applying generalized tariff preferences for 1991 in respect of textile products originating in developing countries (1), extended for 1993 by Regulation (EEC) No 3917/92 (2), and in particular Article 12 thereof,
Whereas Article 10 of Regulation (EEC) No 3832/90 provides that preferential tariff treatment shall be accorded for 1993 for each category of products subjected in Annexes I and II thereto to individual ceilings, within the limits of the quantities specified in column 8 of Annex I and column 7 of Annex II, in respect of certain or each of the countries or territories of origin referred to in column 5 of the same Annexes;
Whereas Article 11 of the abovementioned Regulation provides that the levying of customs duties may be re-established at any time in respect of imports of the products in question once the relevant individual ceilings have been reached at Community level;
Whereas, in respect of products of categories 24 and 39 (order Nos 40.0240 and 40.0390), originating in India, the relevant ceilings amount to 499 000 pieces and 101 tonnes respectively;
Whereas on 18 February 1993 imports of the products in question into the Community, originating in India, a country covered by preferential tariff arrangements, reached and were charged against those ceilings;
Whereas it is appropriate to re-establish the levying of customs duties for the products in question with regard to India,
HAS ADOPTED THIS REGULATION:
Article 1
As from 11 May 1993 the levying of customs duties, suspended pursuant to Regulation (EEC) No 3832/90, shall be re-established in respect of the following products, imported into the Community and originating in India:
/* Tables: see OJ */
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, 6 May 1993.
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Commission Regulation (EC) No 748/2003
of 28 April 2003
fixing the minimum selling prices for beef put up for sale under the second invitation to tender referred to in Regulation (EC) No 604/2003
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal(1), as last amended by Commission Regulation (EC) No 2345/2001(2), and in particular Article 28(2) thereof,
Whereas:
(1) Tenders have been invited for certain quantities of beef fixed by Commission Regulation (EC) No 604/2003(3).
(2) Pursuant to Article 9 of Commission Regulation (EEC) No 2173/79 of 4 October 1979 on detailed rules of application for to disposal of beef bought in by intervention agencies and repealing Regulation (EEC) No 216/69(4), as last amended by Regulation (EC) No 2417/95(5), the minimum selling prices for meat put up for sale by tender should be fixed, taking into account tenders submitted.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
The minimum selling prices for beef for the second invitation to tender held in accordance with Regulation (EC) No 604/2003 for which the time limit for the submission of tenders was 22 April 2003 are as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 29 April 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 April 2003.
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*****
COMMISSION REGULATION (EEC) No 3534/87
of 24 November 1987
on the classification of products within Common Customs Tariff subheading 16.04 E
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 97/69 of 16 January 1969 on measures to be taken for uniform application of the nomenclature of the Common Customs Tariff (1), as last amended by Council Regulation (EEC) No 2055/84 (2), and in particular Article 3 thereof,
Whereas, in order to ensure uniform application of the nomenclature of the Common Customs Tariff, provisions should be adopted on the tariff classification of deep frozen skinless tuna pieces ('tuna loins') which have been pre-cooked by both steam and water, particularly so as to facilitate the removal of the skin, and resulting in the proteins being partially coagulated;
Whereas Common Customs Tariff heading No 03.01 annexed to Council Regulation (CEE) No 950/68 (3), as last amended by Regulation (EEC) No 2184/87 (4), refers to fresh (whether alive or dead), refrigerated, or deep frozen, fish; whereas heading No 16.04 refers to prepared and preserved fish;
Whereas, owing to the heat treatment undergone, the fish in question has lost its character as a product falling within heading No 03.01, and consequently falls within heading No 16.04; whereas within that heading, subheading 16.04 E should be selected;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Committee on Common Customs Tariff Nomenclature,
HAS ADOPTED THIS REGULATION:
Article 1
Deep-frozen skinless tuna pieces ('tuna loins') which have been pre-cooked by both steam and water, particularly so as to facilitate the removal of the skin, and resulting in the proteins being patially coagulated shall be classified within the Common Customs Tariff under subheading:
16.04 Prepared and preserved fish, including caviar and its substitutes:
E. Tunny.
Article 2
This Regulation shall take effect from the eight day following its publication in the Official Journal of the Uropean Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 November 1987.
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COMMISSION REGULATION (EC) No 1517/2007
of 19 December 2007
amending Annex III to Council Regulation (EEC) No 2092/91 as regards the derogation relating to the separation of organic and non-organic feed production lines
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2092/91 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs (1) and in particular the second indent of Article 13 thereof,
Whereas:
(1)
The second paragraph of point 3 of Part E of Annex III to Regulation (EEC) No 2092/91 provides for a derogation from the obligation for all equipment used in units preparing compound feedingstuffs covered by Council Regulation (EEC) No 2092/91 to be completely separated from equipment used for preparing compound feedingstuffs not covered by that Regulation. This derogation expires on 31 December 2007.
(2)
Experience shows that this derogation is broadly applied by the operators. The use of the same production line for organic and non-organic feedingstuffs production separated in time requires the application of appropriate cleaning measures to guarantee the integrity of organic feedingstuffs production. Evidence has been provided that such measures, when rigorously applied under strict control, can be effective.
(3)
Article 18 of Council Regulation (EC) No 834/2007 of 28 June 2007 on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91 (2) provides for the production of processed organic feed to be separated from production of processed non-organic feed either in time or space.
(4)
It is therefore appropriate to prolong the derogation until Regulation (EC) No 834/2007 enters into application from 1 January 2009.
(5)
Regulation (EEC) No 2092/91 should therefore be amended accordingly.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Committee set up by Article 14 of Regulation (EEC) No 2092/91,
HAS ADOPTED THIS REGULATION:
Article 1
In Part E of Annex III to Regulation (EEC) No 2092/91, in the second paragraph of point 3 the date ‘31 December 2007’ is replaced by the date ‘31 December 2008’:
Article 2
This Regulation shall enter into force on the seventh 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, 19 December 2007.
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Commission Regulation (EC) No 1657/2002
of 18 September 2002
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1498/98(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 19 September 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 September 2002.
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COMMISSION REGULATION (EC) No 478/2006
of 23 March 2006
fixing the unit amounts of the advances on production levies in the sugar sector for the 2005/06 marketing year
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 Article 15(8) thereof,
Whereas:
(1)
Article 6 of Commission Regulation (EC) No 314/2002 of 20 February 2002 laying down detailed rules for the application of the quota system in the sugar sector (2) provides for the fixing before 1 April of the unit amounts to be paid by sugar, isoglucose and inulin syrup producers as advance payments of the production levies for the current marketing year.
(2)
The estimate of the levies gives an amount which is more than 60 % of the maximum indicated in Article 15(3) of Regulation (EC) No 1260/2001 in the case of the basic levy and an amount below 60 % of the maximum indicated in Article 15(5) in the case of the B levy. In accordance with Article 7 of Regulation (EC) No 314/2002, the advances on the basic levies should be fixed at 50 % of the maximum amount for sugar and inulin syrup, and the advances on the B levies should be fixed at 80 % of the amount of the B levy estimate for sugar and inulin syrup. The advance payment for isoglucose is fixed at 40 % of the unit amount of the basic production levy estimated for sugar, in accordance with Article 7(3) of that Regulation.
(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
The unit amounts referred to in Article 6(1)(b) of Regulation (EC) No 314/2002 for the 2005/06 marketing year are hereby fixed as follows:
(a)
EUR 6,32 per tonne of white sugar as the advance payment on the basic production levy for A sugar and B sugar;
(b)
EUR 42,83 per tonne of white sugar as the advance payment on the B levy for B sugar;
(c)
EUR 5,06 per tonne of dry matter as the advance payment on the basic production levy for A isoglucose and B isoglucose;
(d)
EUR 6,32 per tonne of dry matter sugar/isoglucose equivalent as the advance payment on the basic production levy for A inulin syrup and B inulin syrup;
(e)
EUR 42,83 per tonne of dry matter sugar/isoglucose equivalent as the advance payment on the B levy for B inulin syrup.
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, 23 March 2006.
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COMMISSION REGULATION (EC) No 1000/96 of 4 June 1996 amending Regulation (EEC) No 1538/91 introducing detailed rules for implementing Council Regulation (EEC) No 1906/90 on certain marketing standards for poultry
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1906/90 of 26 June 1990 on certain marketing standards for poultry (1), as last amended by Regulation (EC) No 3204/93 (2), and in particular Article 9 thereof,
Whereas Commission Regulation (EEC) No 1538/91 (3), as last amended by Regulation (EC) No 205/96 (4), introduces detailed rules for implementing the marketing standards for poultry;
Whereas, in the light of the experience gained, the definition of a capon and the criteria relating to it in Annex IV of Regulation (EEC) No 1538/91 should be amended;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Poultrymeat and Eggs,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 1538/91 is amended as follows:
1. In Article 1 (1) (a) the third indent is replaced by the following:
'- capon: male fowl castrated surgically before reaching sexual maturity and slaughtered at a minimum age of 140 days: after castration the capons must be fattened for at least 77 days.`
2. Annex IV is amended as follows:
- the second indent in the second indent of point (c) is replaced by the following:
'- 2 m2 per duck or per capon`,
- the second indent in the last indent of point (d) is replaced by the following:
'- for capons: four weeks`.
Article 2
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, 4 June 1996.
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COMMISSION REGULATION (EC) No 1288/1999
of 18 June 1999
fixing the minimum selling prices for beef put up for sale under the invitation to tender referred to in Regulation (EC) No 1096/1999
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 organisation of the market in beef and veal(1), as last amended by Regulation (EC) No 1633/98(2), and in particular Article 7(3) thereof,
(1) Whereas tenders have been invited for certain quantities of beef fixed by Commission Regulation (EC) No 1096/1999(3);
(2) Whereas, pursuant to Article 9 of Commission Regulation (EEC) No 2173/79(4), as last amended by Regulation (EC) No 2417/95(5), the minimum selling prices for meat put up for sale by tender should be fixed, taking into account tenders submitted;
(3) Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
The minimum selling prices for beef for the invitation to tender held in accordance with Regulation (EC) No 1096/1999 for which the time limit for the submission of tenders was 4 June 1999 are as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 19 June 1999.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 June 1999.
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COUNCIL DECISION of 13 July 1995 on the conclusion of the Agreement between the European Community and Mongolia on trade in textile products (95/441/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 Commission has negotiated on behalf of the Community an Agreement on trade in textile products with Mongolia;
Whereas that Agreement should be approved,
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement between the European Community and Mongolia on trade in textile products 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 on behalf of the European Community.
The President of the Council shall give the notification provided for in Article 20 of the Agreement on behalf of the European Community.
Done at Luxembourg, 13 June 1995.
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*****
COMMISSION DECISION
of 3 March 1988
authorizing methods for grading pig carcases in the United Kingdom
(Only the English text is authentic)
(88/234/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2759/75 of 29 October 1975 on the common organization of the market in pigmeat (1), as last amended by Regulation (EEC) No 3906/87 (2), and in particular Article 4 (6) thereof,
Having regard to Council Regulation (EEC) No 3220/84 of 13 November 1984 determining the Community scale for grading pig carcases (3), as amended by Regulation (EEC) No 3530/86 (4), and in particular Article 5 (2) thereof,
Whereas Article 2 (3) of Regulation (EEC) No 3220/84 provides that the grading of pig carcases must be determined by estimating the content of lean meat in accordance with statistically proven assessment methods based on the physical measurement of one or more anatomical parts of the pig carcase; whereas the authorization of grading methods is subject to compliance with a maximum tolerance for statistical error in assessment; whereas this tolerance has been defined in Article 3 of Commission Regulation (EEC) No 2967/85 of 24 October 1985 laying down detailed rules for the application of the Community scale for grading pig carcases (5);
Whereas the Government of the United Kingdom has requested the Commission to authorize the use of three methods for grading pig carcases on its territory (excluding Northern Ireland) and has submitted the information required in Article 3 of Regulation (EEC) No 2967/85; whereas an examination of this request has revealed that the conditions for authorizing the said grading methods are fulfilled;
Whereas Article 2 of Regulation (EEC) No 3220/84 lays down that Member States may be authorized to provide for a presentation of pig carcases different from the standard presentation defined in the same Article where commercial practice or technical requirements warrant such a derogation;
Whereas in the United Kingdom commercial practice does not require that the tongue is removed from the pig carcase; whereas this should be taken into account in adjusting the weight for standard presentation;
Whereas in accordance with Article 2 (3) of Regulation (EEC) No 2967/85 and by way of derogation from Article 2 (1) and (2) thereof, the weight of the cold carcase may be calculated by reference to pre-determined scales of absolute weight reductions if the reductions for individual weight classes correspond, as far as possible, to the reductions calculated in percentage terms; whereas the United Kingdom has notified the determination of such a scale to the Commission;
Whereas no modification of the apparatus or grading method may be authorized except by means of a new Commission Decision adopted in the light of experience gained; whereas, for this reason, the present authorization may be revoked;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Management Committee for Pigmeat,
HAS ADOPTED THIS DECISION:
Article 1
The use of the following methods is hereby authorized for grading pig carcases pursuant to Regulation (EEC) No 3220/84 in the United Kingdom, excluding Northern Ireland:
- the apparatus termed 'Intrascope (Optical Probe)' and assessment methods related thereto, details of which are given in Part 1 of Annex I,
- the apparatus termed 'Fat-O-Meater (FOM)' and assessment methods related thereto, details of which are given in Part 2 of Annex I,
- the apparatus termed 'Hennessy Grading Probe (HGP II)' and assessment methods related thereto, details of which are given in Part 3 of Annex I.
Article 2
By way of derogation from the standard presentation referred to in Article 2 of Regulation (EEC) No 3220/84, pig carcases may be presented with the tongue attached before being weighed and graded. In order to establish quotations for pig carcases on a comparable basis, the recorded hot weight shall be reduced by 0,3 kilograms.
Article 3
By way of derogation from Article 2 (1) and (2) of Regulation (EEC) No 2967/85 the weight of the cold
carcase shall be calculated by reference to the scale of absolute reductions of the hot weight shown in Annex II.
Article 4
Modifications of the apparatus or of the assessment methods shall not be authorized.
Article 5
This Decision is addressed to the United Kingdom.
Done at Brussels, 3 March 1988.
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*****
COMMISSION REGULATION (EEC) No 1854/88
of 29 June 1988
concerning the stopping of fishing for cod by vessels flying the flag of Germany
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), and in particular Article 11 (3) thereof,
Whereas Council Regulations (ECC) No 3806/87 (2) and (EEC) No 930/88 (3), allocating, for 1988, catch quotas between Member States for vessels fishing in Swedish waters, provides for cod 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 cod in the waters of ICES division III d (Swedish waters) by vessels flying the flag of Germany or registered in Germany have reached the quota allocated for 1988,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of cod in the waters of ICES division III d (Swedish waters) by vessels flying the flag of Germany or registered in Germany are deemed to have exhausted the quota allocated to Germany for 1988.
Fishing for cod in the waters of ICES division III d (Swedish waters) by vessels flying the flag of Germany or registered in Germany is prohibited, as well as the retention on board, the transhipment and the landing of such stock captured by the abovementioned vessels after the date of application of this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 June 1988.
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COMMISSION REGULATION (EC) No 1550/2005
of 22 September 2005
fixing the maximum export refund on common wheat in connection with the invitation to tender issued in Regulation (EC) No 1059/2005
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1), and in particular Article 13(3) thereof,
Whereas:
(1)
An invitation to tender for the refund for the export of common wheat to certain third countries was opened pursuant to Commission Regulation (EC) No 1059/2005 (2).
(2)
In accordance with Article 7 of Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals (3), the Commission may, on the basis of the tenders notified, decide to fix a maximum export refund taking account of the criteria referred to in Article 1 of Regulation (EC) No 1501/95. In that case a contract is awarded to any tenderer whose bid is equal to or lower than the maximum refund.
(3)
The application of the abovementioned criteria to the current market situation for the cereal in question results in the maximum export refund being fixed.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
For tenders notified from 16 to 22 September 2005, pursuant to the invitation to tender issued in Regulation (EC) No 1059/2005, the maximum refund on exportation of common wheat shall be 7,50 EUR/t.
Article 2
This Regulation shall enter into force on 23 September 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 September 2005.
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COMMISSION REGULATION (EC) No 556/2007
of 23 May 2007
amending Regulation (EC) No 1622/2000 laying down certain detailed rules for implementing Council Regulation (EC) No 1493/1999 on the common organisation of the market in wine and establishing a Community code of oenological practices and processes
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), and in particular Article 46(1) thereof,
Whereas:
(1)
Under Point A(3) of Annex V to Regulation (EC) No 1493/1999, the maximum permissible total sulphur dioxide levels of wine may be increased where climatic conditions have made this necessary.
(2)
Commission Regulation (EC) No 1622/2000 (2) lays down certain detailed rules for implementing Regulation (EC) No 1493/1999 as regards the maximum permissible total sulphur dioxide content of wine in particular. Under Article 19(4) thereof, Annex XIIa to that Regulation lists the cases where the Member States may authorise an increase in the maximum total sulphur dioxide content of wine of less than 300 milligrams per litre by a maximum of 40 milligrams per litre because of weather conditions.
(3)
By letter of 1 March 2007, the French Government requested authorisation to increase the maximum permissible total sulphur dioxide content of wine of less than 300 milligrams per litre by a maximum of 40 milligrams per litre for wine produced in the Bas-Rhin and Haut-Rhin regions from the 2006 grape harvest in the wake of exceptionally unfavourable weather conditions. That request should be acceded to.
(4)
The technical note provided by the competent French authorities shows that the quantities of sulphur dioxide needed to ensure the proper vinification and proper preservation of the wines affected by these unfavourable conditions and to ensure that they are suitable for placing on the market should be increased above the level normally authorised. This temporary measure is the only available option to allow the grapes affected by these unfavourable weather conditions to be used to produce wine suitable for placing on the market. Following measures taken by the French Institute of Winemaking Technology, it has been estimated that approximately 25 % of the total quantity produced in this area is likely to be affected by this derogation.
(5)
Regulation (EC) No 1622/2000 should therefore be amended accordingly.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,
HAS ADOPTED THIS REGULATION:
Article 1
Annex XIIa to Regulation (EC) No 1622/2000 is hereby replaced by the Annex 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 Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 May 2007.
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COMMISSION REGULATION (EC) No 705/96 of 18 April 1996 derogating, for the United Kingdom and for the 1995 calendar year, from Regulation (EEC) No 3886/92 as regards the notification deadlines for the transfers of rights and temporary leases provided for in Council Regulation (EEC) No 805/68 on the common organization of the market in beef and veal
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 beef and veal (1), as last amended by Commission Regulation (EC) No 2417/95 (2) and in particular Articles 4e (5) and 4f (4) thereof,
Whereas the implementation, pursuant to Commission Regulation (EEC) No 3886/92 (3), as last amended by Regulation (EC) No 2778/95 (4), of the rules on individual limits introduced by Article 4d of Regulation (EEC) No 805/68 resulted, during the 1995 calendar year, in administrative difficulties in the United Kingdom which delayed the allocation of the national reserve for the said calendar year; whereas, consequently, certain producers were not able to effect the transfers of rights or temporary leases provided for in Article 4e (5) of Regulation (EEC) No 805/68 within the time limit provided for in Article 34 (2) of Regulation (EEC) No 3886/92 for 1995; whereas the Member State concerned should therefore be authorized, under certain conditions designed to limit the risk of irregularities as far as possible, to set a second deadline for notification by the producers concerned by such transfers or temporary leasing of rights for 1995;
Whereas, for the same reasons, the United Kingdom should be authorized, as a special measure for the 1995 calendar year, to extend the deadline provided for in Article 35 of Regulation (EEC) No 3886/92 for the notification of transfers of premium rights and temporary leasing of those rights;
Whereas the setting of a second deadline for the notification of transfers or temporary leasing of rights under the conditions referred to above also makes it necessary to derogate from the provisions laid down in Articles 32 and 33 of Regulation (EEC) No 3886/92 in respect of 1995 for the United Kingdom;
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
For the 1995 calendar year, Article 32 of Regulation (EEC) No 3886/92 shall not apply to the United Kingdom in the case of rights obtained by transfer and/or temporary lease for the year in question before the allocation of rights under national reserves relating to the same year has been communicated.
Article 2
By way of derogation from Article 34 (2) of Regulation (EEC) No 3886/92, for the 1995 calendar year, the United Kingdom may set a second deadline for producers meeting one of the following conditions:
(a) producers offering rights: the total quantity of rights to the premium at their disposal must, at the time of the transfer or leasing operation, exceed the quantity for which the premium has been requested in respect of 1995. In addition, the transfer or leasing operation may, at most, relate only to the difference between the total quantity of rights and the quantity applied for in respect of the said calendar year;
(b) producers receiving rights:
- either, must not have obtained from the national reserve the entire quantity of rights applied for in respect of the 1995 calendar year, or
- have been the subject of a withdrawal of rights with effect from 1995 under the provisions of Article 33 of Regulation (EEC) No 3886/92 giving rise to that withdrawal, of which they have been notified at the earliest 10 working days before the first deadline fixed by the United Kingdom for the notification of transfers and temporary leases in respect of 1995.
Article 3
By way of derogation from Article 35 of Regulation (EEC) No 3886/92, for the 1995 calendar year, in the case of the United Kingdom the communication shall be made by a date to be set by that Member State where notification of a transfer or temporary lease of a right has taken place before expiry of a second deadline set by that Member State in accordance with Article 2 of this Regulation.
Article 4
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
It shall apply for the 1995 calendar year.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 April 1996.
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