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COMMISSION DECISION of 11 March 1992 concerning aid envisaged by the Netherlands Government in favour of an environmentally-sound disposal of manure (Only the Dutch text is authentic) (92/316/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 in accordance with the abovementioned Articles, given notice to the parties concerned to submit their comments to it,
Whereas:
I
The Netherlands Government intends to institute an aid scheme for stimulating an environmentally-acceptable disposal of surplus manure (stimulering milieuhygiënisch verantwoorde afzet van mestoverschotten). This scheme, which is to be financed entirely with the yield of a levy to be paid by animal husbandry units who produce more manure than their land can take (i.e. more than 125 kg phosphates per hectare per annum), will finance the activities of the public foundation national manure bank (Stichting Landelijke Mestbank - SLM) in regions where there is a concentration of such units. The SLM as the statutory task of disposing of surplus manure in an environmentally-acceptable manner.
The nature of the environmental damage which may be caused by the inappropriate disposal of animal manure comes under many headings. These include contamination of surface and subterranean water supplies, gaseous emissions and residual heavy metals, through to bacteriological and aesthetic aspects. Whether or not environmental damage will be caused by the disposal of animal manure depends critically upon the conditions under which the disposal takes place, in terms of methods, timing and quantities.
By letter dated 8 April 1991 the Netherlands Government notified the Commission, pursuant to Article 93 (3) of the Treaty, of its intentions.
After a first examination of the notification, the Commission considered that the aid was likely to distort competition and affect trade between Member States by favouring certain animal farmers in the Netherlands. The Commission noted that the description of activities to be financed by the SLM was not very clear, but that these would seem to concern transportation, storage and price regulation for manure disposal.
In so far as the aid would be used to supply manure processing factories with manure, aid would seem to be granted to those factories as well. The Commission also took into consideration that it had previously-accepted two other manure aid schemes in the Netherlands: an aid scheme for the distribution of high quality manure with decreasing aid intensities until its expiration in 1995 and an aid scheme in favour of the construction of some 20 manure processing factories in 1990 to 1994 (1).
The Commission concluded that the aid scheme for stimulating an environmentally-acceptable disposal of surplus manure would seem to involve operation aid, to which in principle none of the derogations in Article 92 can apply. Furthermore, the new aid scheme would seem to be incompatible with the conditions under which the Commission had approved the two previous schemes referred to above. The degressivity and the date of expiration of the scheme for distributing high-quality manure would have no real significance if the new scheme were adopted. As for the manure processing factories, the Commission had based its approval on, among others, the Netherlands Government's assurance that no additional aid would be granted to these factories. The Commission's letter of approval dated 7 February 1991 had specifically noted this point and indicated the Commission's a priori negative attitude towards any further manure aid in the Netherlands. The Commission therefore decided to initiate the procedure laid down in Article 93 (2) of the Treaty.
The Netherlands Governement was informed of this decision by letter dated 4 June 1991 and was invited to provide its comments within one month. The other Member States and interested third parties were also given notice to submit their comments (2).
II
Within the framework of the procedure the Netherlands Government submitted observations by letters dated 5 July 1991, in bilateral meetings on 7 October and 17 October 1991 and by letter dated 18 November 1991. The Netherlands Government explained the operations of the manure bank SLM and the way these would be financed by means of levies and tariffs. The Netherlands Government accepted that the scheme had to be assessed by the Commission on the basis of Article 92 of the Treaty, but believed that there would be no distortion of competition, nor an effect on trade, given that the scheme would be financed entirely by means of a levy paid by animal husbandry units. In this context, the Netherlands Government also held that the scheme respected the 'polluter pays principle' and claimed that the draft scheme in question would not entail additional aid to manure processing factories, nor would it serve to prolong the existing aid scheme for transporting high quality manure. With its latest letter, the Netherlands Government submitted the SLM's budget for 1992, which it had adapted in order to meet the Commission's concerns regarding the types of activity to be aided under the scheme.
Within the framework of the procedure, observations were also submitted by the Danish Government, by the European fertilizer manufacturers association EFMA, by the Italian federation of pig-breeders, by a German agricultural organization and by five individual manure processors in the Netherlands, Belgium and France. These observations were submitted to the Netherlands Government for its comments by letter dated 29 August 1991. The Netherlands Government submitted such comments by letter dated 7 October 1991.
III
The cost of an environmentally-sound disposal of the waste an economic operator produces is basically an element of his production cost. Animal husbandry units having an economic advantage through intensive production methods and relatively low transportation cost for feed due to their being concentrated in certain regions, must also bear the cost of an environmentally-sound disposal of their manure, in accordance with the polluter pays principle and Article 130r (2) of the Treaty, especially the principle that the polluter must pay. In the same way as the cost of production and profits are different for every individual operator, the cost of manure disposal will also differ, depending among others on the availability of and distance to potential outlets, such as land that can take additional manure or processing facilities.
Consequently the provision of public funds to the manure bank SLM in order to finance certain of its operations constitutes a type of State aid. The fact that these funds are raised by means of a levy on the production of surplus manure does not alter this appraisal. In the present case the levy is introduced by a regulation of the Landbouwschap (Agricultural Board), i.e. as an obligatory measure under public law; payment of the levy can be enforced. In its judgment of 11 November 1987 in Case 259/85 (3), the Court of Justice stated that the mere fact that a system of subsidies which benefits certain companies in a specific sector is financed by a parafiscal charge levied on every supply of national goods in that sector is not sufficient to divest the system of its character as aid granted by a Member State within the meaning of Article 92 of the Treaty.
The rate of levy on surplus manure is fixed annually by the Landbouwschap. In doing so the Landbouwschap takes into account several factors: whether there is a regional surplus of manure, the type of manure produced and the magnitude of surplus production at farm level. For example, in 1992 the levy on surplus pig manure in the east of the Netherlands will be Hfl 3,23 per tonne, in the south of the Netherlands Hfl 3,69 per tonne and in the rest of the Netherlands nil.
The yield is in the first place used to cover the fixed cost (infrastructure and overheads) of the manure banks, in the second place their variable operation cost. The remainder of its operation cost is financed by means of tariffs paid by those units that actually supply manure to the SLM. Of the Hfl 71,6 million total expenditure the SLM is expected to have in 1992, Hfl 40 million will be covered by levies, Hfl 31,5 million by means of tariffs.
The effect of the proposed aid scheme will be to partly harmonize the cost of manure disposal, and therefore part of the production cost of animal husbandry units, by means of the levy. A second effect of the scheme will be an increasing willingness of manure producers to deliver their surplus manure to the SLM rather than to dispose of it through direct contacts with owners of land elsewhere, given that they will in any case have to finance part of the cost of the SLM, whether they use that manure bank or not.
In so far as the yield of the levy is used to finance part of the cost of supplying processing factories with manure, the aid is likely to favour these factories as well. The scheme will enable the SLM to create storage facilities and to regulate the supply of manure and the price at which it is offered to processing factories, thus limiting their normal entrepreneurial risk. Even though the Netherlands Government in its letter dated 5 July 1991 denied that the objective of the scheme was to grant additional aid to manure processing factories and stressed that the SLM will negotiate with these factories on a commercial basis in order to determine the quantities of manure that will be delivered and the price thereof, the Commission holds that the effect of the aid to the SLM will be to absorb part of the risk manure processing factories would normally have to bear. In this context the Commission notes that the Dutch delegation at the meeting held on 17 October 1991 recognized that the proposed scheme will have the effect of speeding up the construction of large-scale manure processing plants, so that these will be available when needed.
IV
There is competition between animal farmers in the Community and animals and their meat are traded between Member States. The Dutch animal husbandry sector accounts for an important part of Community production. In 1989 15 % of pork production in the Community, 9,2 % of egg production and 7,2 % of poultry production took place in the Netherlands.
In 1988 the Netherlands exported 759 049 tonnes of pigmeat (CN code 0203) to other Member States, in 1989 751 252 tonnes and in 1990 761 772 tonnes, which represented almost 50% of the totality of intra-Community trade in these products. In those years the Netherlands imported 24 214 tonnes, 16 747 tonnes and 22 227 tonnes respectively from other Member States.
In 1988 the Netherlands exported 365 938 tonnes of eggs (CN code 040700) to other Member States, in 1989 370 523 tonnes and in 1990 373 930 tonnes, which represented approximately 75 % of the totality of intra-Community trade in these products. In those years the Netherlands imported 9 407 tonnes, 13 253 tonnes and 19 556 tonnes respectively from other Member States.
In 1988 the Netherlands exported 218 480 tonnes of poultry meat (CN code 0207) to other Member States, in 1989 221 937 tonnes and in 1990 248 793 tonnes, which represented 40 to 45 % of the totality of intra-Community trade in these products. In those years the Netherlands imported 46 365 tonnes, 48 755 tonnes and 52 043 tonnes respectively from other Member States.
Manure processing is one of the four mechanisms with which the Netherlands Government intends to prevent and to dispose of surplus manure. The other mechanisms are: prohibition of expansion of manure production in units which already produce more manure that their land can take; reduction of manure production and minerals in manure by using appropriate feeds; distribution of manure inside the Netherlands.
In 1989 there was processing capacity available in the Netherlands for 420 000 tonnes of manure per annum. The environmental targets set by the Netherlands Government make it necessary to have processing capacity for 6 million tonnes per annum by the end of 1994 and for 20 million tonnes per annum by the year 2000. These ambitious targets call for the building of up to 20 large-scale processing plants with capacities of 250 000 to 500 000 tonnes per year before 1995.
Processed animal manure contains N, P and K in proportions similar to those in chemical fertilizers, but in lower concentrations (6 % - 6 % - 6 %). Its content of organic matter is, however, much higher. This organic matter improves the soil structure and the soil's ability to absorb water and minerals. Notably in a warm and dry climate, organic fertilizers used over a longer period have been shown to lead to significantly higher crop yields.
When used as a fertilizer, manure competes with other organic fertilizers. According to a study made for the responsible Dutch Ministry in 1990 on the sales potential in other countries for Dutch processed animal manure (4), this product will compete with local animal manure, fish-meal, bone-meal, milled seed-waste, compost and sewage sludge. The potential market for processed animal manure depends in the first place on the price at which it is offered. According to the study referred to above, potential markets can be found inside the Community in France and in Spain and to a lesser extent in Portugal, Italy and Greece and in third countries such as the USA, Japan and Canada.
Depending on soil and crops, processed animal manure may also be in competition with chemical fertilizers. In a study paper on animal manure in Europe dated September 1991, EFMA calculated that if 50 % of the total one million tonnes of nitrogen coming from animal husbandry based on imported feedstuff were to be processed, the use of nitrogen from animal manure would rise by 100 000 tonnes, which represents about 1 % of the total sale of nitrogen fertilizer in Europe in 1988. In the paper EFMA assumed, however, that processing on such a scale would not take place, because the costs to the farmers would be prohibitive.
There is trade between Member States in animal and vegetable fertilizers, whether or not mixed together or chemically treated (CN code 3101). In 1988 the Netherlands exported 160 877 tonnes to other Member States, in 1989 210 170 tonnes and in 1990 253 182 tonnes, mainly to the Belgium-Luxembourg Economic Union, Germany and France, which represented 44 to 60 % of the totality of intra-Community trade in these products. In those years the Netherlands imported 44 404 tonnes, 37 357 tonnes and 65 994 tonnes respectively from other Member States. Dutch exports of processed animal manure to other Member States and to third countries can be expected to increase markedly if the planned processing plants are built.
Intensive, concentrated animal husbandry exists not only in the Netherlands, but also in other Member States, especially Belgium, France, Germany and Italy. In order to cope with the associated environmental problems, Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrate from agricultural sources (5) requires all Member States to take measures in order to dispose of their manure surplus in an environmentally-sound manner. There will consequently be increased competition between suppliers of manure, processed or not, in the Community and some replacement of chemical fertilizers by organic fertilizers.
Where financial aid strengthens the position of certain undertakings compared with others that are competing with them in the Community, such aid must be deemed to affect competition with such other undertakings. The measures envisaged may well increase competition from Dutch intensive animal husbandry and from processed manure.
Consequently, the aid which the Netherlands Government intends to grant to an environmentally-sound disposal of surplus manure affects trade between Member States and distorts competition between animal-farmers within the meaning of Article 92 (1) of the Treaty. In so far as the surplus manure in question is processed in order to be brought on the market as a dry organic fertilizer, the aid is also likely to distort competition with other manufacturers of organic and chemical fertilizers.
Article 92 (1) of the Treaty lays down the principle that aid having certain characteristics which it specifies is incompatible with the common market.
The derogations from that principle which are set out in Article 92 (2) of the Treaty are inapplicable in this instance, given the nature and objectives of the aid, and were not in any case invoked by the Netherlands Government.
V
Article 92 (3) of the Treaty specifies the aid which may be considered to be compatible with the common market. Compatibility with the Treaty must be viewed in the context of the Community and not of a single Member State. So as to maintain the proper functioning of the common market and take account of the principles laid down in Article 3 (f) of the Treaty, the derogations to the principle of Article 92 (1) which are set out in Article 92 (3) must be interpreted strictly in examining any aid scheme or any individual aid measure.
In particular, the derogations may be applied only if the Commission finds that, if the aid were not granted, market forces alone would not be sufficient to induce the recipients to act in such a way as to achieve one of the objectives pursued.
Applying the derogations to cases which do not contribute to such an objective, or where the aid is not necessary for this purpose, would mean conferring undue advantages on the industries or undertakings of certain Member States, whose financial position would be strengthened, and affecting trading conditions between Member States and distorting competition, without any justification based on the common interest referred to in Article 92 (3).
With regard to the derogations provided for in Article 92 (3) (a) and (c) for aid intended to promote or facilitate the promotion of certain regions, it should be noted that the standard of living in none of the regions of the Netherlands is abnormally low nor does one of the regions suffer from serious underemployment within the meaning of the derogation laid down in Article 92 (3) (a). Several regions in the Netherlands qualify for regional aid within the meaning of the derogation provided for in Article 92 (3) (c); these regions are mainly situated in the north of the Netherlands, whereas the manure problem is the largest in the south and the east. Moreover, the Netherlands Government has not claimed that the aid in question would serve to facilitate the development of certain regions.
With regard to the derogations provided for in Article 92 (3) (b), it is firstly to be noted that the aid is not intended to remedy a serious disturbance in the Dutch economy; nor, indeed, has the Netherlands Government put forward any argument calling for the application of this derogation. With respect to the derogations for aid to promote the execution of an important project of common European interest, the Commission has taken into consideration that the Community framework on State aids in environmental matters, of which all Member States were informed by letters dated 7 November 1974 and 7 July 1980, foresees that during a transitional period State aids designed to assist existing firms in adapting to laws or regulations imposing new major burdens relating to environmental protection will qualify for derogation under Article 92 (3) (b) of the Treaty, by being aids to promote the execution of an important project of common European interest. The framework specifies however that, in order to qualify for exemption under Article 92 (3) (b), national aids will have to be granted to finance investments necessary to the adaptation which the recipient firms will have to make to their plants in order to satisfy new major environmental obligations imposed by the State or the Community.
In the present case, the aid planned by the Netherlands Government is not designed to finance investments in animal husbandry units in order to comply with new environmental legislation, but on the contrary to allow manure producers to maintain their present production, by financing a new outlet for their surplus manure. The framework does not exclude environmental aids other than those it declares compatible with the common market; such other aids must then, however, qualify for the exemptions in Article 92 (3) (a) or (c).
With regard to the derogations provided for in Article 92 (3) (c) for aid to facilitate the development of certain economic activities, where such aid does not adversely affect trading conditions to an extent contrary to the common interest, the Commission notes that the aid scheme proposed by the Netherlands Government - even though it serves to maintain the present intensive, concentrated production structure of a large part of Dutch animal husbandry - can be said to facilitate its developments, by creating a system for an environmentally-sound disposal of its surplus manure. Having due regard to Article 130r of the Treaty the Commission notes that the environmental policy pursued by the Netherlands Government, in so far as it reduces manure pollution, is in the interest of the Community as a whole.
When the Commission decided in December 1990 not to object to the Netherlands Government's intention to grant 35 % investment aid for the construction of large-scale manure processing plants until the end of 1994, it did so on the basis of the environmental considerations referred to above and the high commercial risk involved in large-scale manure processing. At the same time the Commission expressed its concerns that if these processing plants should turn out to be less profitable than expected, the Netherlands Government might be tempted to introduce a system of operating aid.
With regard to the aid scheme now proposed, the Commission has taken note of the Netherlands Government's reasoning that a central organization such as the SLM serves a useful purpose for the sector as a whole: the SLM is obliged to accept all manure offered to it, thus creating a controllable and environmentally-sound outlet for animal husbandry units that will find it increasingly difficult to dispose of their manure by other means. The Commission has also taken account of the argument presented by the Dutch delegation in the meeting held on 17 October 1991, that the necessary processing capacity will be available when it is needed, thanks to the scheme.
The Commission is of the opinion that the aid to be granted under the scheme Stimulering milieuhygiënisch verantwoorde afzet van mestoverschotten consists of two components:
First, the financing of the SLM's fixed costs (administrative apparatus, creation and maintenance of storage facilities) in order to have an organization available to all manure producers who may, at any given time, have a surplus of manure and no other outlet. It is the Commission's view that the SLM serves a useful purpose for the Dutch animal husbandry sector as a whole and the facilities it offers can therefore well be financed by means of a levy. The Commission has previously approved aid in other Member States to collective sectoral activities financed by means of quasi-fiscal levies on domestic production (6).
Secondly, as for the financing of the variable costs the SLM will increasingly have, that is the cost of transporting, storing and delivering manure to other areas in the Netherlands or to processing factories, it is the Commission's view that these variable costs should eventually be entirely covered by the tariffs that manure producers who actually use the SLM as an outlet have to pay. In the SLM's budget for 1992, its variable cost is only partially covered by tariffs and partly by the yield of the levy. If this situation was to become permanent, the Dutch authorities could well grant operating aid to manure processing factories via the SLM, once these factories have been built, for their exploitation and for their export of processed manure to other Member States. Such operating aid would adversely affect trading conditions to an extent contrary to the common interest, to the detriment of other suppliers of fertilizers.
The second component of the aid proposed by the Netherlands Government can therefore not be allowed to continue to be granted after the initial period in which the first processing factories are to be built, that is the period until the end of 1994. The Netherlands Government itself has repeatedly stated that 35 % investment aid will only be necessary for the construction of the first large-scale processing factories to be built in this period, given the extraordinary risks involved in this stage.
Similarly, the use of part of the yield of the levy on surplus manure for financing other than infrastructural and overhead cost in the SLM can be considered to promote the creation of an environmentally-sound disposal mechanism for manure without adversely affecting trading conditions to an extent contrary to the common interest, if it remains limited to the initial period, in which the SLM has to start up its operations and manure producers will become acquainted with it, and if it is entirely financed by the sector itself.
VI
Conclusion: The scheme Stimulering milieuhygiënisch verantwoorde afzet van mestoverschotten involves aid fulfilling the tests set out in Article 92 (1) of the Treaty. The aid is completely financed by means of a levy imposed on the overproduction of manure. The aid to the fixed cost of the manure bank SLM can be considered compatible with the common market under Article 92 (3) (c). The aid to the variable cost of actually handling manure can only be considered compatible during the starting period ending on 31 December 1994. From 1 January 1995 on the latter aid cannot be granted. Reporting obligations will ensure verification that this condition is complied with,
HAS ADOPTED THIS DECISION:
Article 1
The aid entirely financed by means of a levy on manure surplus production, which the Netherlands intend to grant for stimulating an environmentally-acceptable disposal of surplus manure, can be considered compatible with the common market under Article 92 (3) (c) of the EEC Treaty, in so far as the aid does not exceed the fixed cost of the administrative apparatus and the creation and maintenance of storage facilities by the Stichting Landelijke Mestbank (SLM).
Article 2
The aid referred to in Article 1 can also be considered compatible with the common market if it covers part of the variable cost of the SLM in its starting period for manure disposal 1992 to 1994.
From 1 January 1995 on, however, such aid no longer meets the conditions for exception provided for in Article 92 (3) and therefore may not be granted after that date.
Article 3
The Netherlands shall submit annual reports on the operations of the SLM and the way these are financed, allowing the Commission to verify that this Decision is complied with.
Article 4
The Netherlands shall inform the Commission, within two months of the notification of this Decision, of the measures taken to comply with it.
Article 5
This Decision is addressed to the Kingdom of the Netherlands. Done at Brussels, 11 March 1992.
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Commission Regulation (EC) No 489/2002
of 18 March 2002
fixing Community producer and import prices for carnations and roses with a view to the application of the arrangements governing imports of certain floricultural products originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 4088/87 of 21 December 1987 fixing conditions for the application of preferential customs duties on imports of certain flowers originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip(1), as last amended by Regulation (EC) No 1300/97(2), and in particular Article 5(2)(a) thereof,
Whereas:
Pursuant to Article 2(2) and Article 3 of abovementioned Regulation (EEC) No 4088/87, Community import and producer prices are fixed each fortnight for uniflorous (bloom) carnations, multiflorous (spray) carnations, large-flowered roses and small-flowered roses and apply for two-weekly periods. Pursuant to Article 1b of Commission Regulation (EEC) No 700/88 of 17 March 1988 laying down detailed rules for the application of the arrangements for the import into the Community of certain floricultural products originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip(3), as last amended by Regulation (EC) No 2062/97(4), those prices are determined for fortnightly periods on the basis of weighted prices provided by the Member States. Those prices should be fixed immediately so the customs duties applicable can be determined. To that end, provision should be made for this Regulation to enter into force immediately,
HAS ADOPTED THIS REGULATION:
Article 1
The Community producer and import prices for uniflorous (bloom) carnations, multiflorous (spray) carnations, large-flowered roses and small-flowered roses as referred to in Article 1b of Regulation (EEC) No 700/88 for a fortnightly period shall be as set out in the Annex.
Article 2
This Regulation shall enter into force on 19 March 2002.
It shall apply from 20 March to 2 April 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 March 2002.
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COUNCIL REGULATION (EEC) No 483/86 of 25 February 1986 fixing the level of quantitative restrictions in Spain for certain fruit and vegetables coming from the Community as constituted on 31 December 1985
THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, Having regard to the Act of Accession of Spain and Portugal, and in particular Article 89 (1) thereof, Having regard to the proposal from the Commission, Whereas, pursuant to Article 137 of the Act of Accession, the Kingdom of Spain is authorized until 31 December 1989 to maintain quantitative restrictions, in the form of quotas, on imports of certain fruit and vegetables from the Community as constituted on 31 December 1985 and whereas certain additional restrictions may be applied in respect of certain periods; Whereas paragraph 3 (b) of the said Article specifies that the initial quota for each product for 1986 must be fixed either at 3 % of the average of Spanish annual production over the last three years before accession for which statistics are available or at the average of Spanish imports over the last three years before accession for which statistics are available, if the latter criterion results in a greater volume; Whereas, in the light of the statistics at present available, the quotas should be based on the first of the two criteria referred to above; Whereas the quota applicable from 1 March to 31 December 1986 must be equal to the initial quota, less one-sixth, HAS ADOPTED THIS REGULATION:
Article 1
1. The volumes of the initial quotas that the Kingdom of Spain may, pursuant to Article 137 of the Act of Accession, apply to the import of products appearing in Annex I coming from the Community as constituted on 31 December 1985 shall be fixed in the Annex in respect of each product. From 1 March to 31 December 1986, these volumes shall be reduced by one sixth. 2. Within the framework of the quotas referred to in paragraph 1 the Spanish authorities shall, during the periods mentioned in Annex II, limit imports of the products concerned to the quantities specified in the said Annex in respect of each product.
Article 2
Detailed rules for the application of the quota system referred to in Article 137 of the Act of Accession shall, where required, be adopted in accordance with the procedure laid down in Article 33 of 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 3768/85 (2).
Article 3
This Regulation shall enter into force on 1 March 1986.
This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 25 February 1986.
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*****
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
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 2966/80 (2), and in particular Articles 2 and 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), and in particular Article 5 (1) thereof,
Whereas detailed rules should be laid down for the application of Regulation (EEC) No 3220/84, in particular, measures designed to ensure that it is applied on a uniform basis;
Whereas 'weight' is taken to mean the weight of the cold carcase; whereas this is calculated by applying to the result of the weighing a conversion coefficient to be determined; whereas that coefficient may vary depending on the time between the weighing and the sticking of the pig; whereas an adjustment of the coefficient should therefore be allowed;
Whereas the lean-meat content of carcases is assessed by means of authorized grading methods; whereas only statistically proven assessment methods may be authorized; whereas authorization of grading methods is subject to compliance with a maximum tolerance for statistical error in assessment which should be specified;
Whereas the marking of carcases is, without prejudice to Article 4 (2) of Regulation (EEC) No 3220/84, compulsory; whereas, in order to make the market more transparent, detailed rules should be laid down as regards marking and identification of the carcases whilst providing for derogations in certain circumstances;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Pigmeat,
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation lays down detailed rules implementing Regulation (EEC) No 3220/84 determining the Community scale for grading pig carcases.
Article 2
1. The weight of the cold carcase as referred to in the first subparagraph of Article 2 (2) of Regulation (EEC) No 3220/84 shall be obtained by deducting 2,0 % from the warm weight recorded not more than 45 minutes after the pig has been stuck.
2. If, in a given slaughterhouse, the 45-minute period between the sticking and the weighing of the pig cannot generally be observed, the competent authority of the Member State concerned may allow this period to be exceeded provided that the deduction of 2,0 % specified in paragraph 1 shall be reduced by 0,1 point for every additional quarter of an hour or part thereof that has elapsed.
3. By way of derogation from paragraphs 1 and 2, the weight of the cold carcase may be calculated by reference to predetermined scales of absolute weight reductions established by Member States in accordance with the characteristics of their pig herds and notified to the Commission. The use of such scales shall be authorized in accordance with the procedure provided for in Article 24 of Regulation (EEC) No 2759/75, if the reductions for individual weight classes correspond, as far as possible, to the reductions resulting from paragraphs 1 and 2.
Article 3
1. No method for assessing the lean meat content of carcases shall be authorized as a grading method within the meaning of Article 2 (3) of Regulation (EEC) No 3220/84 unless:
- it is based on a representative sample of the national or regional pigmeat production concerned, by the assessment method, consisting of at least 120 carcases, of which the lean meat
content has been ascertained in accordance with the first subparagraph of Article 2 (3) of Regulation (EEC) No 3220/84 either directly or through national dissection methods with equivalent effect, and
- The coefficient of determination is greater than R2 = 0,64.
2. Authorization of the grading methods shall, moreover, be subject to the residual standard error in assessment being less than se = 2,5.
3. Member States shall notify the Commission of the grading methods they wish to have authorized for application in their territory, indicating the principles on which these methods are based and the equations used for assessing the percentage of lean meat, including the correlation between the lean meat content established through any national dissection method used for that purpose and the dissection method as laid down in the first subparagraph of Article 2 (3) of Regulation (EEC) No 3220/84.
Application of grading methods in the territory of a Member State shall be authorized in accordance with the procedure provided for in Article 24 of Regulation (EEC) No 2759/75.
4. The application of grading methods must correspond in all particulars to the description given in the Community Decision authorizing them.
Article 4
1. Without prejudice to Article 4 (2) of Regulation (EEC) No 3220/84, pig carcases shall be marked with the capital letter denoting the grade of the carcase on the scale given in Article 3 (2) and (3) thereof or with the percentage of estimated lean meat pursuant to Article 4 (1) thereof and, should the need arise, with any other particulars which are considered appropriate. The letters or numerals must be at least two centimetres high. Any non-toxic, indelible and heat- resistant ink may be used for marking as well as any other form of permanent marking authorized in advance by the competent national authorities.
2. Half-carcases shall be marked on the skin of the hind shank or the ham.
3. A label affixed in such a manner that it cannot be removed without being damaged shall also be an acceptable form of marking.
Article 5
In the case specified in Article 4 (2) of Regulation (EEC) No 3220/84, pig carcases shall be individually identified by any unalterable means.
Article 6
Member States shall adopt the measures they consider necessary to guarantee the application of this Regulation in their territory, and shall inform the Commission of such measures as soon as possible.
Article 7
This Regulation shall enter into force on 1 November 1985.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 October 1985.
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*****
COMMISSION REGULATION (EEC) No 2542/83
of 9 September 1983
amending certain provisions of Regulations (EEC) No 262/79 and (EEC) No 1932/81 concerning respectively the sale of butter at reduced prices and the granting of aid for butter for use in the manufacture of pastry products, ice-cream and other foodstuffs
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (1), as last amended by Regulation (EEC) No 1600/83 (2), and in particular Articles 6 (7) and 12 (3) thereof,
Having regard to Council Regulation (EEC) No 985/68 of 15 July 1968 laying down general rules for intervention on the market in butter and cream (3), as last amended by Regulation (EEC) No 1272/79 (4), and in particular Article 7a thereof,
Whereas Article 9 (1) of Commission Regulation (EEC) No 262/79 (5), as last amended by Regulation (EEC) No 1014/83 (6), provides that establishments which also process butter under Commission Regulation (EEC) No 1932/81 (7), as last amended by Regulation (EEC) No 48/82 (8), must abide by certain undertakings; whereas experience has shown that certain undertakings need not be required where the establishment provides adequate guarantees as to its functioning;
Whereas the possibility provided for in (a) of the first subparagraph of Article 10 (2) of Regulation (EEC) No 262/79 should be extended to products falling within subheading 19.02 B II b) of the Common Customs Tariff in the form of uncooked dough; whereas Article 2 (1) (a) of Regulation (EEC) No 1932/81 should therefore be amended;
Whereas under Article 23 of Regulation (EEC) No 262/79 a condition for the granting of an extension of the processing period is that there has been no serious negligence on the part of the party concerned; whereas experience suggests that such proof need no longer be required;
Whereas 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
Regulation (EEC) No 262/79 is hereby amended as follows:
1. The following is added to the second indent of the second subparagraph of Article 9 (1):
'However, at the request of the party concerned, Member States may waive this obligation if the establishment has premises so designed as to guarantee the separation and identification of any stocks of the butter in question.'
2. The first subparagraph of Article 10 (2) is replaced by the following:
'2. However, an undertaking may take part in the tendering procedure without subscribing to the conditions provided for in Article 5 (1) and (2) if it gives a written undertaking a fulfil the following conditions:
(a) all the butter awarded shall be processed in accordance with the use specified in the tender (formula A, formula B or formula C) into products as specified in Article 4 (1), (2) and 3 (a) (aa) within eight months of the final day for submission of tenders as specified in Article 12 (2);
(b) the processing referred to under (a) shall be undertaken in such a way that the minimum quantity of butter used in each factory in one month is five tonnes;
(c) the requirements laid down in the second subparagraph of Article 9 (1) shall be observed.'
3. Article 23 (2) is replaced by the following:
'2. In other cases which cannot be regarded as cases of force majeure and where the periods for processing referred to in Article 8 or the period for processing referred to in Article 10 (2) (a) have been exceeded by no more than 60 days in total, the amount of the processing security to be forfeit shall
be only 4 ECU per tonne for each day by which the prescribed periods have been exceeded.'
Article 2
Article 2 (1) (a) of Regulation (EEC) No 1932/81 is hereby replaced by the following:
'(a) as regards butter, only by those undertakings which give a written undertaking to process themselves, within the time limits referred to in paragraph 2, the butter referred to in Article 1 (2) (a) directly into the formula A, formula B or formula C products specified in Article 4 of Regulation (EEC) No 262/79 in accordance with the detailed rules laid down in Article 10 (2) of the said Regulation;'.
Article 3
This Regulation shall enter into force on 15 September 1983.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 September 1983.
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COMMISSION DECISION
of 19 May 1999
recognising the fully operational character of the Belgian database for bovine animals
(notified under document number C(1999) 1349)
(Only the French and Dutch texts are authentic)
(1999/377/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 820/97 of 21 April 1997 establishing a system for the identification and registration of bovine animals and regarding the labelling of beef and beef products(1), and in particular Article 6(3), first indent,
Having regard to the request submitted by Belgium,
(1) Whereas on 12 October 1998, the Belgian authorities submitted to the Commission a request asking for recognition of the fully operational character of their database that forms part of the Belgian system for the identification and registration of bovine animals; whereas this request was accompanied by appropriate information that was updated on 25 February 1999;
(2) Whereas the Belgian authorities have undertaken the commitment to improve the reliability of this database ensuring in particular that (i) all kinds of movements shall be recorded in the database and (ii) the competent authority will be able to promptly correct any errors or deficiences which could be detected automatically or following the appropriate on-the-spot inspections; whereas, in addition, the Belgian authorities have undertaken the commitment to modify their current provisions regarding re-identification of bovine animals in case of lost ear tags so as to comply with the provisions of Regulation (EC) No 820/97; whereas the Belgian authorities have undertaken the commitment to implement those improvement measures at the latest by 30 June 1999;
(3) Whereas in view of the situation in Belgium, it is appropriate to recognise the fully operational character of the database for the bovine animals,
HAS ADOPTED THIS DECISION:
Article 1
The Belgian database for bovine animals is recognised as fully operational from 1 July 1999.
Article 2
This Decision is addressed to the Kingdom of Belgium.
Done at Brussels, 19 May 1999.
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DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 21 October 2009
on mobilisation of the European Union Solidarity Fund, in accordance with point 26 of the Interinstitutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management
(2009/844/EC)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
having regard to the Interinstitutional Agreement of 17 May 2006 between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management (1), and in particular point 26 thereof,
having regard to Council Regulation (EC) No 2012/2002 of 11 November 2002 establishing the European Union Solidarity Fund (2),
having regard to the proposal from the Commission,
Whereas:
(1)
The European Union has created a European Union Solidarity Fund (the ‘Fund’) to show solidarity with the population of regions struck by disasters.
(2)
The Interinstitutional Agreement of 17 May 2006 allows the mobilisation of the Fund within the annual ceiling of EUR 1 billion.
(3)
Regulation (EC) No 2012/2002 contains the provisions whereby the Fund may be mobilised.
(4)
Italy submitted an application to mobilise the Fund, concerning a disaster caused by an earthquake,
HAVE DECIDED AS FOLLOWS:
Article 1
For the general budget of the European Union for the financial year 2009, the European Union Solidarity Fund shall be mobilised to provide the sum of EUR 493 771 159 in commitment and payment appropriations.
Article 2
This Decision shall be published in the Official Journal of the European Union.
Done at Strasbourg, 21 October 2009.
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COMMISSION DECISION of 18 June 1981 authorizing the joint creation of the undertaking Roheisengesellschaft Saar mbH ("Rogesa") by AG der Dillinger Hüttenwerke and Stahlwerke Röchling- Burbach GmbH (Only the German text is authentic) (81/492/ECSC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 66 thereof,
Having regard to High Authority Decision No 24/54 of 6 May 1954 laying down, in implementation of Article 66 (1) of the Treaty, a Regulation on what constitutes control of an undertaking (1),
Having regard to the applications by Stahlwerke Röchling-Burbach GmbH, dated 14 May 1980 and 24 February 1981, and the application by AG der Dillinger Hüttenwerke dated 2 April 1981,
Having regard to Commission Decision 78/538/ECSC of 6 June 1978, authorizing Arbed to acquire the whole of the capital of Neunkircher Eisenwerk AG, 25 709 % of the capital of SA Métallurgique et Minière de Rodange-Athus, and to take over the management of the latter company (2),
Having obtained the comments of the Government of the Federal Republic of Germany,
Whereas:
I. 1. Aktien-Gesellschaft der Dillinger Hüttenwerke, Dillingen, Saar ("Dillingen"), is an undertaking engaged in steel production within the meaning of Article 80 of the Treaty, with a capital of DM 157 500 000.
2. Société Financière Sidérurgique, Paris ("SFS"), is a financial holding company which owns a majority of the shares in and is in a position to control, within the meaning of Article 66, Sacilor-Aciéries et Laminoirs de Lorraine, Hayange ("Sacilor"), a steelproducing undertaking which is also in a position to control certain other steel-producing undertakings in the SFS/Sacilor group.
3. The financial structure of Dillingen is currently being reorganized, as a result of which Dillingen, with its capital increased to DM 178 500 000, will be controlled by the SFS/Sacilor group.
4. Stahlwerke Röchling-Burbach GmbH ("Röchling-Burbach") is a steel-producing undertaking with a capital of DM 330 000 000, which is controlled, within the meaning of Article 66, together with certain other steel-producing undertakings, by Arbed SA, Luxembourg, in the Arbed group.
5. Dillingen and Röchling-Burbach intend to set up jointly the Roheisengesellschaft Saar mbH, Dillingen ("Rogesa"), with the object of producing pig iron and supplying it to the partners ("Gesellschafter") on a non-profit basis.
6. The founding partners will each subscribe half the capital of Rogesa and will be represented equally on its supervisory board ("Beirat"), to which inter alia §§ 5 to 8 of the Iron and Steel Co-determination Act ("Gesetz über die Mitbestimmung der Arbeitnehmer in den Aufsichtsräten und Vorständen der Unternehmer des Bergbaues und der Eisen und Stahl erzeugenden Industrie") will be applied by the parties. The supervisory board will appoint the directorate ("Geschäftsführung") comprising up to four members.
7. In these circumstances Dillingen and Röchling-Burbach will be in a position to exercise joint control over Rogesa. The proposed transaction will bring about a concentration within the meaning of Article 66 (1) between Rogesa, Dillingen and the rest of the SFS/Sacilor group on the one hand, and between Rogesa, Röchling-Burbach and the rest of the Arbed group on the other, without leading, however, to a concentration between SFS/Sacilor and Arbed.
II. 8. The Rogesa project is an important part of the restructuring plans for the steel industry in the Saarland. The pig iron capacity in the iron and steel works of the Saar totalled about 7 79 million tonnes in 1980 and was distributed among 17 blast furnaces in four different locations - the Dillingen works and the (1) Official Journal of the ECSC, 11.5.1954, p. 345. (2) OJ No L 164, 21.6.1978, p. 14. Völklingen, Burbach and Neunkirchen works of Röchling-Burbach. Most of these blast furnaces are small and relatively inefficient by modern technical standards. Only at Dillingen is there a blast furnace with a 10-m hearth diameter and two others with diameters exceeding eight metres. The ore preparation plants too are scattered and rather small with eight sinter plants spread over four locations. The purpose of Rogesa is to concentrate all sinter and pig iron production in the Saarland on one site - Dillingen - by increasing the efficiency of the largest of the existing blast furnaces and building two new blast furnaces in stages with 11 70-m and 11 75-m hearth diameters. By 1988, after closure of the other blast furnace plants in Völklingen, Burbach and Neunkirchen, pig iron capacity in the Saar will be centred on three modern and efficient production units with a reduced total capacity of about 6 72 million tonnes a year. Hot metal will be supplied direct from the blast furnaces to the steelworks in Dillingen and by rail in torpedo wagons to the steelworks of Röchling-Burbach. Supporting the new blast furnace complex there will be three new sinter plants with a combined capacity of 9 75 million tonnes compared with 7 79 million tonnes at present. The resulting higher proportion of sinter in the burden will increase the productivity of the blast furnaces. Coupled with the scheme is the construction of a harbour, which depends in turn on the canalization of the Saar river, which will yield further useful cost reductions in ore transport costs. Overall the project is expected to produce considerable improvements in efficiency and to provide a valuable contribution towards restoring the competitiveness of the Saarland steel industry.
9. In addition there is a plan for the construction of a central coke oven plant at Dillingen, to be controlled jointly by Dillingen, Röchling-Burbach and the Saarbergwerke AG, which will be the subject of a separate application under Article 66 on behalf of the three parties concerned.
10. Rogesa will essentially be a producers' cooperative supplying its members at cost price with one of the two main raw materials for steelmaking, namely pig iron (the other being scrap). Rogesa will not normally itself operate on the market as a supplier to third parties outside the Sacilor and Arbed groups. The market for steelmaking pig iron, whether in the form of cold iron or of hot metal, is nowadays very limited and in any case will not be affected by the transaction, since third parties have not been supplied hitherto by the participating groups.
11. So far as the market for steel products is concerned, the project will improve the efficiency of the parties by improving their cost base, but it will not affect competition between the parties to a perceptible extent, because the joint production of a raw material can only have a marginal effect on the play of competition between the partners so far as their final products are concerned and in the present case, these are, in any event, different products. In fact Dillingen is interested in the production and sale of flat products (plates and sheets - the latter hire-rolled elsewhere in the Sacilor group), while Röchling-Burbach is interested in the production and sale of long products, in particular wire rods, bars and sections. It is true that the Arbed group is concerned with the production of flat products elsewhere in the Community, particularly at Sidmar in Belgium, but the position of Sidmar will not be affected by the project, which involves the supply of hot metal, necessarily over relatively short distances.
12. So far as access to supplies is concerned, the transaction will not place Dillingen and Röchling-Burbach in an artificially privileged position or give them any substantial advantage. The project provides for the supply of up to 2 74 million tonnes a year of pig iron to Dillingen and up to 3 72 million tonnes a year to Röchling-Burbach. If the two partners maintain their present share of German and Community pig iron production, which will depend upon being able to retain their share of steel production and the steel market, the output of Rogesa will represent about 12 % of German pig iron production and 4 % of Community pig iron production. The whole Sacilor group including Dillingen represents 8 76 % and the whole Arbed group including Röchling-Burbach represents 8 77 % of Community production of pig iron (1979 figures). In view of the geographical limitations on the movement of hot metal and the different product and market interests of the two groups, there are no grounds for aggregating the shares of the two groups in order to measure the actual or potential restrictions on competition arising from the transaction. The project needs to be regarded rather as an indispensable means of helping to assure that the two Saarland partners will be able to continue to compete against the various like undertakings in the Community with works more favourably located on coastal sites, on larger waterways or nearer to principal markets.
13. Under these circumstances, and taking into account the arguments mentioned above under point 11, it seems fully justified to accept the joint production of a raw material for steelmaking by two important steel groups of the Community. It is essential, however, that Arbed and Sacilor - who are two such steel groups of considerable importance - should remain autonomous and independent of each other in the production and distribution of steel products, apart from permanent-way material for which joint control and management in the Société des Laminoirs de Villerupt ("Villerupt") (1) has already been authorized by the Commission.
14. Accordingly no manager or member of a managing or supervisory body in the Dillingen/SFS/Sacilor group should exercise any such functions in the Röchling-Burbach/Arbed group or vice versa, except in Rogesa (or in undertakings concerned with the preparatory stages of iron-making) and in Villerupt.
15. Finally it is necessary to emphasize that if Rogesa were to be used as a forum for concerted practices or agreements influencing the mutual independence of the two groups beyond the stage at which pig iron is produced and supplied to steelworks, such practices or agreements would fall under the prohibition of Article 65 (1).
16. Having regard to the circumstances described in points 8 to 13 above, and if the requirements described in points 14 and 15 are met, the proposed transaction will not give the undertakings concerned the power to determine prices, to control or restrict production or distribution or to hinder the maintenance of effective competition in the common market, or to evade the rules of competition instituted under the Treaty, in particular by establishing an artificially privileged position involving a substantial advantage in access to supplies or markets.
17. The proposed transaction accordingly meets the requirements for authorization laid down in Article 66 (2) and may therefore be authorized,
HAS ADOPTED THIS DECISION:
Article 1
The joint creation of the undertaking Roheisengesellschaft Saar mbH ("Rogesa") by AG der Dillinger Hüttenwerke and Stahlwerke Röchling-Burbach GmbH is hereby authorized.
Article 2
The following obligation is attached to the authorization:
No manager or member of a managing or supervisory body in the Dillingen/SFS/Sacilor group shall exercise any such functions in the Röchling-Burbach/Arbed group or vice versa. This obligation does not apply to any undertaking authorized to be controlled jointly by the two groups. If special circumstances so justify, the Commission may, in response to a reasoned request, authorize exceptions from this obligation.
Article 3
This Decision is addressed to AG der Dillinger Hüttenwerke, Dillingen ; Société Financière Sidérurgique, Paris ; Stahlwerke Röchling-Burbach, Völklingen ; and Arbed SA, Luxembourg.
Done at Brussels, 18 June 1981.
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REGULATION (EEC) No 574/72 OF THE COUNCIL of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 2, 7 and 51 thereof;
Having regard to Council Regulation (EEC) No 1408/71(1) of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, and in particular Article 97 thereof;
Having regard to the proposal from the Commission adopted after consultation with the Administrative Commission for the Social Security of Migrant Workers;
Having regard to the Opinion of the European Parliament;
Having regard to the Opinion of the Economic and Social Committee;
Whereas Regulation No 3(2) on social security for migrant workers having replaced by Regulation (EEC) No 1408/71 whereof Article 99 also repealed Regulation No 4(3) which fixed the implementing procedures and supplemented the provisions of Regulation No 3 on social security for migrant workers, it is necessary to provide implementing procedures adapted to the new basic rules and to the experience gained in applying these texts over a period of twelve years;
Whereas it is necessary in particular to specify the competent institutions of each Member State, the documents to be furnished and the formalities to be completed by persons concerned in order to obtain benefits, the procedures for administrative cheeks and medical examinations and the conditions for the reimbursement of benefits provided by the institution of one Member State on behalf of the institution of another Member State, and the dutics of the Audit Board;
HAS ADOPTED THIS REGULATION:
TITLE I GENERAL PROVISIONS
Article 1
Definitions For the purposes of this Regulation:
(a) 'Regulation' means Regulation (EEC) No 1408/71;
(b) 'Implementing Regulation' means this Regulation;
(c) the definitions in Article 1 of the Regulation have the meaning assigned to them in the said Article.
Article 2
Printed model forms - Information on legislations - Guides 1. Models of certificates, certified statements, declarations, applications and other documents necessary for the application of the Regulation and of the Implementing Regulation shall be drawn up by the Administrative Commission. Two Member States or their competent authorities may, by mutual agreement and having received the Opinion of the Administrative Commission, adopt simplified forms for use between them.
2. For the benefit of the competent authorities of each Member State, the Administrative Commission may assemble information on the provisions of national legislations which come within the scope of the Regulation.
3. The Administrative Commission shall prepare guides for the purpose of advising persons concerned of their rights and of the administrative formalities to be completed for the exercise of those rights.
The Advisory Committee shall be consulted before such guides are drawn up.
Article 3
Liaison bodies - Communications between institutions and between beneficiaries and institutions 1. The competent authorities may designate liaison bodies which may communicate directly with each other.
2. Any institution of a Member State, and any person residing or staying in the territory of a Member State, may make application to the institution of another Member State, either directly or through the liaison bodies.
Article 4
Annexes 1. The competent authority or authorities of each Member State are given in Annex 1.
2. The competent institutions of each Member State are listed in Annex 2.
3. The institutions of the place of residence and the place of stay of each Member State are listed in Annex 3.
4. The liaison bodies appointed pursuant to Article 3 (1) of the Implementing Regulation are listed in Annex 4.
5. The provisions referred to in Articles 5, 53 (3), 104, 105 (2), 116 and 120 of the Implementing Regulation are set out in Annex 5.
6. The procedure for the payment of benefits chosen by the institutions responsible for payment in each Member State, in accordance with Article 53 (1) of the Implementing Regulation, is set out in Annex 6.
7. The names and seats of the banks referred to in Article 55 (1) of the Implementing Regulation are listed in Annex 7.
8. The Member States for whom the provisions of Article 10 (2) (d) of the Implementing Regulation apply in their dealings with each other are specified in Annex 8.
9. The schemes to be taken into consideration when calculating the average annual cost of benefits in kind, in accordance with Article 94 (3) (a) and Article 95 (3) (a) of the Implementing Regulation, are listed in Annex 9.
10. The institutions or bodies appointed by the competent authorities pursuant, in particular, to the following Articles of the Implementing Regulation: Article 6 (1), Article 11 (1), Article 13 (2) and (3), Article 14 (1), (2) and (3), Article 38 (1),
Article 70
(1), Article 80 (2), Article 81, Article 82 (2), Article 85 (2), Article 89 (1), Article 91 (2), Article 102 (2), Article 110, Article 113 (2), are listed in Annex 10.
TITLE II IMPLEMENTATION OF THE GENERAL PROVISIONS OF THE REGULATION Implementation of Articles 6 and 7 of the Regulation
Article 5
Replacement of the arrangements the implementing of convention by the Implementing Regulation The provisions of the Implementing Regulation shall replace those of the arrangements for implementing the conventions referred to in Article 6 of the Regulation; they shall also replace the provisions relating to the implementation of the provisions of the conventions referred to in Article 7 (2) (c) of the Regulation providing that they are not set out in Annex 5 of the Regulation.
Implementation of Article 9 of the Regulation
Article 6
Admission to voluntary or optional continued insurance 1. If, by virtue of Articles 9 and 15 (3) of the Regulation, a person satisfies the conditions for joining a voluntary or optional continued insurance scheme in respect of invalidity, old age and death (pensions) under the legislation of one Member State, and if he has not been subject to compulsory insurance under one of those schemes by virtue of his last employment he may, under the said Articles, join the voluntary or optional continued insurance scheme specified by the legislation of that Member State or, failing that, the scheme of his choice.
2. In order to invoke the provisions of Article 9 (2) of the Regulation, a person shall submit to the institution of the Member State in question a certified statement relating to the insurance periods completed under the legislation of any other Member State. Such certified statement shall be issued, at the request of the person concerned, by the institution or institutions who administer the legislations under which he has completed those insurance periods.
Implementation of Article 12 of the Regulation
Article 7
General rules for the implementation of provisions dealing with the prevention of overlapping of benefits - Application of those provisions to benefits in respect of invalidity, old age and death (pensions) 1. Where a person entitled to a benefit due under the legislation of one Member State is also entitled to benefits under the legislation of one or more of the other Member States, the following rules shall apply:
(a) if the application of Article 12 (2) or (3) of the Regulation entails the reduction or the concurrent suspension of those benefits, none of them may be reduced or suspended by an amount greater than the amount obtained by dividing the sum which is subject to reduction or suspension under the legislation under which the benefit is due by the number of benefits subject to reduction or suspension to which the person concerned is entitled;
(b) as regards benefits in respect of invalidity, old age or death (pensions) awarded under Article 46 (2) of the Regulation by the institution of a Member State, that institution shall take into account any benefits of a different kind and any income or remuneration likely to entail the reduction or suspension of the benefit due from that institution, not for the calculation of the theoretical amount referred to in Article 46 (2) (a) of the Regulation but exclusively for the reduction or suspension of the amount referred to in Article 46 (2) (b) of the Regulation. However, only a fraction of the total amount of such benefit, income or remuneration shall be taken into account, and that fraction shall be determined in proportion to the duration of the insurance periods completed, in accordance with Article 46 (2) (b) of the Regulation.
(c) As regards benefits in respect of invalidity, old age or death (pensions) awarded under the first subparagraph of Article 46 (1) of the Regulation by the institution of a Member State, that institution shall, where the provisions of Article 46 (3) of the Regulation apply, take into account any benefits of a different kind and any income or remuneration likely to entail the reduction or suspension of the benefit due from that institution, not for the calculation of the amount referred to in
Article 46
(1) of the Regulation, but exclusively for the reduction or suspension of the amount resulting from the application of Article 46 (3) of the Regulation. However, only a fraction of the amount of those benefits, income or remuneration shall be taken into account; such fraction shall be obtained by applying to that amount a coefficient equal to the ratio between the amount of benefit resulting from the application of Article 46 (3) of the Regulation and the amount resulting from the application of the first subparagraph of Article 46 (1) of the Regulation.
2. For the purposes of Article 12 (2), (3) and (4) of the Regulation, the competent institutions concerned shall, on request, exchange all requisite information.
Article 8
Rules applicable in the case of overlapping of rights to maternity benefits under the legislation of several Member States If a worker or a member of his family is entitled to claim maternity benefits under the legislations of two or more Member States, those benefits shall be granted exclusively under the legislation of the Member State in whose territory the confinement took place or, if the confinement did not take place in the territory of one of these Member States, exclusively under the legislation of the Member State to which the worker was last subject.
Article 9
Rules applicable in the case of overlapping of rights to death grants under the legislations of several Member States 1. Where the death occurs in the territory of a Member State, the right to a death grant acquired under the legislation of that Member State only shall be maintained, whilst the right acquired under the legislation of any other Member State shall lapse.
2. Where the death occurs in the territory of one Member State when the right to a death grant has been acquired under the legislation of two or more other Member States, or where the death occurs outside the territory of the Member States and the said right has been acquired under the legislation of two or more Member States, only the right acquired under the legislation of the Member State under which the worker completed his last period of insurance shall be maintained, whilst the right acquired under the legislation of any other Member State shall lapse.
Article 10
Rules applicable in the case of overlapping of rights to family benefits or family allowances or when, during the same period or part of a period, the worker is successively subject to the legislation of several Member States 1. If during the same period family benefits or family allowances are due to two persons in respect of the same member of the family, under Article 73 (1) or (2) or Article 74 (1) or (2) of the Regulation and under the legislation of the country of residence of that member of the family, the provisions to be applied in respect of the overlapping of rights to familiy allowances or family benefits shall be those provided for by the legislation of the country of residence of the member of the family. To this end, the right to family benefits or family allowances under Article 73 (1) or (2) or Article 74 (1) or (2) of the Regulation shall be taken into account as if it were a right acquired under the legislation of the country of residence of the member of the family in question.
2. If a worker has been subject successively to the legislation of two Member States during the period separating two dates for the payment of family benefits or family allowances as provided for by the legislation of one or both of the Member States concerned, the following rules shall apply:
(a) the family benefits or family allowances which such worker may claim under the legislation of each one of these States shall correspond to the number of daily benefits or allowances due under the relevant legislation. Where these legislations do not provide for daily benefits or allowances, the family benefits or family allowances shall be granted in proportion to the length of time during which such worker has been subject to the legislation of each one of the Member States in relation to the period fixed by the legislation concerned;
(b) where the family benefits or family allowances have been provided by an institution during a period when they should have been provided by another institution, there shall be an adjustment of accounts between the said institutions;
(c) for the purposes of subparagraphs (a) and (b) where periods of employment completed under the legislation of one Member State are expressed in units different from those which are used in the calculation of family benefits or family allowances under the legislation of another Member State to which the worker has also been subject during the same period, the conversion shall be carried out in accordance with Article 15 (3) of the Implementing Regulation;
(d) notwithstanding the provisions of subparagraph (a), in respect of dealings between the Member States specified in Annex 8 to the Implementing Regulation, the institution bearing the costs of the family benefits or family allowances by reason of the first employment during the period concerned, shall bear their cost throughout the whole of the current period.
3. If the members of the family of a worker subject to French legislation, or of an unemployed person in receipt of unemployment benefits under French legislation, transfer their residence from the territory of one Member State to the territory of another Member State during the same calendar month, the institution responsible for providing the family allowances at the beginning of that month shall continue to provide them throughout the whole of the current month.
TITLE III IMPLEMENTATION OF THE PROVISIONS OF THE REGULATION FOR DETERMINING THE LEGISLATION APPLICABLE Implementation of Articles 13 to 16 of the Regulation
Article 11
Formalities in the case of posting elsewhere 1. In cases referred to in Article 14 (1) (a) and (2) (a) of the Regulation, the institution designated by the competent authority of the Member State whose legislation remains applicable shall issue to the worker, at his own or his employer's request, and if the required conditions are fulfilled, a certificate of posting testifying that he shall remain subject to that legislation up to a specified date.
2. The consent provided for in Article 14 (1) (a) (ii) of the Regulation shall be requested by the employer.
Article 12
Special provisions concerning insurance under the German social security scheme 1. Where, under the terms of Article 14 (1) (b) and (c) or 2 (a) of the Regulation, German legislation applies to a worker employed by an undertaking or employer whose registered office or place of business is not situated in German territory, this legislation shall apply as if the worker were employed in his place of residence in German territory.
2. When contributions are paid for a fixed period, pursuant to the legislation of a Member State other than Germany, under a compulsory scheme for invalidity, old age, or death (pensions), supplementary contributions for additional insurance under German legislation (Hoeherversicherung) may also be paid for the same period.
Article 13
Exercise of the right of option by persons employed by diplomatic missions and consular posts 1. The right of option provided for in Article 16 (2) of the Regulation must be exercised in the first instance within the three months following the date on which the worker was engaged by the diplomatic mission or consular post concerned, or on which he entered into employment with agents of such mission or post. The option shall take effect on the date of entry into employment.
When a worker renews his right of option at the end of the calendar year, the option shall take effect on the first day of the following calendar year.
2. A worker who exercises his right of option shall inform the institution designated by the competent authority of the Member State for whose legislation he has opted, at the same time notifying his employer thereof. The said institution shall, where necessary, forward such information to all other institutions of the same Member State, in accordance with to him directives issued by the competent authority of that Member State.
3. The institution designated by the competent authority of the Member State for whose legislation a worker has opted, shall issue him with a certificate testifying that he is subject to the legislation of that Member State while he is employed by the diplomatic mission or consular post in question, by agents of such mission or post.
4. Where a worker has opted for German legislation to be applied the provisions of such legislation shall be applied as though that worker were employed in the place where the German Government has its seat. The competent authority shall nominate the competent sickness insurance institution.
Article 14
Exercise of the right of option by auxiliary staff of the European Communities 1. The right of option provided for in Article 16 (3) of the Regulation must be exercised at the time when the contract of employment is concluded. The authority empowered to conclude such contract shall inform the institution designated by the competent authority of the Member State for whose legislation the auxiliary staff member has opted. The said institution shall, where necessary, transmit such information to all other institutions of the same Member State.
2. The institution designated by the competent authority of the Member State for whose legislation the auxiliary staff member has opted, shall issue to him a certificate testifying that he is subject to the legislation of that Member State while he is employed by the European Communities as an auxiliary staff member.
3. The competent authorities of the Member States shall, where necessary, designate the institutions competent in respect of members of the auxiliary staff of the European Communities.
4. Where an auxiliary staff member, employed in the territory of a Member State other than Germany, has opted to have German legislation applied to him, the provisions of that legislation shall be applied as though that auxiliary staff member were employed in the place where the German Government has its seat. The competent authority shall designate the competent sickness insurance institution.
TITLE IV IMPLEMENTATION OF THE PROVISIONS OF THE REGULATION DEALING WITH THE DIFFERENT CATEGORIES OF BENEFITS CHAPTER 1 GENERAL RULES FOR THE AGGREGATION OF INSURANCE PERIODS
Article 15
1. In the cases referred to in Articles 18 (1), 38, 45 (1) and (2), 64, and 67 (1) and (2) of the Regulation, aggregation of insurance periods shall be effected in accordance with the following rules:
(a) to insurance periods completed under the legislation of one Member State shall be added insurance periods completed under the legislation of any other Member State, to the extent that it is necessary to have recourse thereto in order to supplement insurance periods completed under the legislation of the first Member State for the purpose of acquiring, retaining, or recovering the rights to benefits, provided that such insurance periods do not overlap. Where benefits in respect of invalidity, old age or death (pensions) are to be awarded by the institutions of two or more Member States in accordance with Article 46 (2) of the Regulation, each of the institutions concerned shall effect a separate aggregation, by taking into account the whole of the insurance periods completed by the worker under the legislations of all the Member States to which he has been subject, without prejudice, where appropriate, to the provisions of Article 45 (2) and Article 46 (2) (c) of the Regulation;
(b) when a period of compulsory insurance completed under the legislation of one Member State coincides with a period of voluntary or optional continued insurance under the legislation of another Member State, only the former shall be taken into account;
(c) when an insurance period other than a period treated as such, completed under the legislation of one Member State coincides with a period treated as an insurance period under the legislation of another Member State, only the former shall be taken into account;
(d) any period treated as an insurance period under the legislations of two or more Member States, shall be taken into account only by the institution of the Member State under whose legislation the insured person was last compulsorily insured prior to the said period; where the insured person has not been compulsorily insured under the legislation of a Member State before the said period, the latter shall be taken into account by the institution of the Member State under whose legislation he was compulsorily insured for the first time after the said period;
(e) where it is not possible to accurately determine the period of time in which certain insurance periods were completed under the legislation of one Member State, such insurance periods shall be presumed not to overlap with insurance periods completed under the legislation of another Member State and shall, where advantageous, be taken into account.
(f) where, under the legislation of one Member State, certain insurance periods are taken into account only if they have been completed within a specified period of time, the institution which administers such legislation shall:
(i) take into account insurance periods completed under the legislation of another Member State only if they were completed within the said period of time; or
(ii) extend such period of time for the duration of insurance periods completed wholly or partly within the said time limit under the legislation of another Member State, where the insurance periods involved under legislation of the second Member State give rise only to the suspension of the period of time within which the insurance periods must be completed.
2. Insurance periods completed under legislation of a Member State to which the Regulation does not apply, but which are taken into account under legislation of that Member State to which the Regulation does apply, shall be considered as insurance periods to be taken into account for the purposes of aggregation.
3. When insurance periods completed under the legislation of one Member State are expressed in units different from those used by the legislation of another Member State, the conversion necessary for the purposes of aggregation shall be carried out according to the following rules:
(a) where the worker has been subject to a six day week:
(i) one day shall be equivalent to eight hours and vice versa;
(ii) six days shall be equivalent to one week and vice versa;
(iii) twenty-six days shall be equivalent to one month and vice versa;
(iv) three months or thirteen weeks or seventy-eight days shall be equivalent to one quarter and vice versa;
(v) for the conversion of weeks into months and vice versa the weeks and months shall be converted into days;
(vi) the application of the preceding rules shall not have the effect of producing, for the sum total of the insurance periods completed during one calendar year, a total exceeding three hundred and twelve days or fifty-two weeks or twelve months or four quarters;
(b) Where the worker has been subject to a five day week:
(i) one day shall be equivalent to nine hours and vice versa;
(ii) five days shall be equivalent to one week and vice versa;
(iii) twenty-two days shall be equivalent to one month and vice versa;
(iv) three months or thirteen weeks or sixty-six days shall be equivalent to one quarter and vice versa;
(v) for the conversion of weeks into months and vice versa, the weeks and the months shall be converted into days;
(vi) the application of the preceding rules shall not have the effect of producing, for the sum total of the insurance periods completed during one calendar year, a total exceeding two-hundred and sixty-four days or fifty-two weeks or twelve months or four quarters.
CHAPTER 2 SICKNESS AND MATERNITY Implementation of Article 18 of the Regulation
Article 16
Certification of insurance periods 1. In order to invoke the provisions of Article 18 of the Regulation, a worker shall submit to the competent institution a certified statement specifying the insurance periods completed under the legislation to which he was last subject.
2. This certified statement shall be issued at the request of the worker by the institution or institutions of the Member State to whose legislation he was last subject. If he does not submit the said certified statement, the competent institution shall obtain it directly from the institution or institutions concerned.
3. The provisions of paragraphs (1) and (2) shall apply by analogy, if it is necessary to take into account insurance periods previously completed under the legislation of any other Member State in order to satisfy the conditions of the legislation of the competent State.
Implementation of Article 19 of the Regulation
Article 17
Benefits in kind in the case of residence in a Member State other than the competent State 1. In order to receive benefits in kind under Article 19 of the Regulation, a worker must register himself and the members of his family with the institution of his place of residence by submitting a certified statement testifying that he and the members of his family are entitled to the said benefits. Such certified statement shall be issued by the competent institution, if need be in the light of information furnished by the employer. If the worker or the members of his family do not submit the said certified statement the institution of the place of residence shall obtain it directly from the competent institution.
2. This certified statement shall remain valid until the institution of the place of residence is notified of its cancellation. However, when the said certified statement is issued by a French institution, it shall be valid for a period of three months only following the date of issue, and it must be renewed every three months.
3. If the worker is a seasonal worker, the certified statement referred to in paragraph 1 shall be valid for the whole anticipated period of the seasonal work unless, in the meanwhile, the competent institution notifies the institution of the place of residence of its cancellation.
4. The institution of the place of residence shall inform the competent institution of every registration effected in accordance with paragraph 1.
5. When applying for any benefits in kind, the person concerned shall submit the documentary evidence required for the granting of benefits in kind under the legislation of the Member State in whose territory he is residing.
6. In the case of hospitalization, the institution of the place of residence shall notify the competent institution, within three days following the date on which it became aware of the hospitalization, of the date of entry into hospital, the probable duration of hospitalization and the date of leaving hospital. Notification shall be unnecessary, however, when the costs of the benefits in kind are repaid in a lump sum to the institution of the place of residence.
7. The institution of the place of residence shall inform the competent institution in advance of every decision relating to the granting of benefits in kind included in the list referred to in Article 24 (2) of the Regulation. The competent institution shall have fifteen days from the day on which such information is sent within which to raise any objection and to state the reasons on which such objection is based; if, on the expiry of that period, no such objection has been raised, the institution of the place of residence shall grant the benefits in kind. Where such benefits have to be granted in a case of extreme urgency, the institution of the place of residence shall forthwith inform the competent institution thereof. However, notification of its objection, stating the reasons on which such objection is based, shall be unnecessary when the costs of the benefits in kind are to be repaid in a lump sum to the institution of the place of residence.
8. The worker or the members of his family shall inform the institution of the place of residence of any change in their situation which is likely to alter their entitlement to benefits in kind, in particular any cessation of, or change in, employment by the worker or any transfer of residence or stay of that worker or of a member of his family. Likewise, should the worker cease to be insured or cease to be entitled to benefits in kind, the competent institution shall inform the institution of the place of residence accordingly. The institution of the place of residence may, at any time, request the competent institution to supply it with any information relating to the worker's insurance or to his entitlement to benefits in kind.
9. Two or more Member States or the competent authorities of those Member States may, having received the Opinion of the Administrative Commission, agree on other implementing provisions.
Article 18
Cash benefits in the case of residence in a Member State other than the competent State 1. In order to draw cash benefits under Article 19 (1) (b) of the Regulation a worker shall, within three days of commencement of the incapacity for work, apply to the institution of the place of residence by submitting a notification of having ceased work or, if the legislation administered by the competent institution or by the institution of the place of residence so provides, a certificate of incapacity for work issued by the doctor treating the worker concerned.
2. Where the doctors treating the worker concerned in the country of residence do not issue certificates of incapacity for work, the worker shall apply directly to the institution of the place of residence within the time limit fixed by the legislation which it administers.
That institution shall forthwith have the incapacity for work medically confirmed and the certificate referred to in paragraph 1 drawn up. Such a certificate shall state the probable duration of the incapacity and shall be forwarded to the competent institution forthwith.
3. In cases where paragraph 2 does not apply, the institution of the place of residence shall, as soon as possible and in any event within the three days following the date on which the worker applied to it, have the worker medically examined as if he were insured with that institution. The report of the examining doctor shall indicate, in particular, the probably duration of the incapacity for work, and shall be forwarded to the competent institution by the institution of the place of residence within the three days following the date of the examination.
4. The institution of the place of residence shall subsequently carry out any necessary administrative checks or medical examinations of the worker as if he were insured with that institution. As soon as it establishes that the worker is fit to resume work, it shall forthwith notify the worker and the competent institution thereof, stating the date on which the worker's incapacity ceased. Without prejudice to the provisions of paragraph 6, the notification to the worker shall be treated as a decision taken on behalf of the competent institution.
5. In all cases the competent institution shall reserve the right to have the worker examined by a doctor of its own choice.
6. If the competent institution decides to withhold the cash benefits because the worker has not completed the formalities laid down by the legislation of the country of residence, or if it establishes that the worker is fit to resume work, it shall notify the worker of its decision and shall simultaneously send a copy of such decision to the institution of the place of residence.
7. When the worker resumes work, he shall notify the competent institution accordingly, if such notification is required by the legislation administered by that institution.
8. The competent institution shall pay cash benefits by the appropriate method, in particular by international money order, and shall inform the institution of the place of residence and the worker accordingly. Where cash benefits are paid by the institution of the place of residence on behalf of the competent institution, the latter shall inform the worker of his rights and shall notify the institution of the place of residence of the amount of the cash benefits, the dates for payment, and the maximum period during which they should be granted, in accordance with the legislation of the competent State.
9. Two or more Member States, or the competent authorities of those States may, having received the Opinion of the Administrative Commission, agree on other implementing provisions.
Implementation of Article 20 of the Regulation
Article 19
Special provisions for frontier workers and members of their families In the case of frontier workers or members of their families, medicinal products, bandages, spectacles and small appliances may be issued, and laboratory analyses and tests carried out, only in the Member State in whose territory they were prescribed or recommended, in accordance with the legislation of that Member State.
Implementation of Article 22 of the Regulation
Article 20
Benefits in kind in the case of a stay in a Member State other than the competent State - Special case of workers posted elsewhere and workers employed in international transport and members of their families 1. In order to receive benefits in kind for himself or for members of his family who accompany him at the time of his posting, a worker covered by Article 14 (1) (a) (i) or 2 (a) of the Regulation shall submit to the institution of the place of stay the certificate provided for in Article 11 of the Implementing Regulation. A worker who has submitted such certificate shall be presumed to have satisfied the conditions for the acquisition of the right to benefits in kind.
2. In order to receive benefits in kind for himself or for members of his family who accompany him, a worker employed in international transport, covered by Article 14 (1) (b) of the Regulation, who in the course of his employment goes to the territory of a Member State other than the competent State shall, as soon as possible, submit to the institution of the place of stay a special certified statement issued by the employer or by his agent during the current calendar month or during the two calendar months preceding its submission. Such certified statement shall state in particular the date from which the worker has been employed by the said employer, and the name and address of the competent institution; if, however, under the legislation of the competent State the employer is not required to know the competent institution, the worker shall provide in writing the name and address of that institution when submitting his application to the institution of the place of stay. A worker who has submitted the certified statement shall be presumed to have satisfied the conditions for aquisition of the right to benefits in kind. If a worker is unable to contact the institution of the place of stay before receiving medical treatment, he shall nevertheless receive such treatment on presentation of the said certified statement as if he were insured with that institution.
3. The institution of the place of stay shall, within three days, inquire of the competent institution whether the person concerned satisfies the conditions for acquisition of the right to benefits in kind. That institution shall provide benefits in kind until it receives a reply from the competent institution, but for not more than thirty days.
4. The competent institution shall send its reply to the institution of the place of stay within ten days of the receipt of the request from that institution. If the reply is in the affirmative, the competent institution shall indicate, if necessary, the maximum period during which the benefits in kind may be granted, in accordance with the legislation which it administers, and the institution of the place of stay shall continue to provide the said benefits.
5. In place of the certificate or certified statement provided for in paragraphs 1 and 2 respectively, workers covered by those paragraphs may submit to the institution of the place of stay a certified statement testifying that the conditions for acquisition of the right to benefits in kind have been satisfied. This certified statement, which shall be issued by the competent institution, shall specify in particular, where necessary, the maximum period during which benefits in kind may be granted in accordance with the legislation of the competent State. In such a case paragraphs 1, 2, 3 and 4 shall not apply.
6. Paragraphs 6, 7 and 9 of Article 17 of the Implementing Regulation shall apply by analogy.
7. Benefits in kind provided by virtue of the presumption made in paragraphs 1 or 2 shall be reimbursed as provided for in Article 36 (1) of the Regulation.
Article 21
Benefits in kind in the case of a stay in a Member State other than the competent State - Workers other than those covered by Article 20 of the Implementing Regulation 1. In order to receive benefits in kind under Article 22 (1) (a) (1) of the Regulation, save in the cases referred to in Article 20 of the Implementing Regulation, a worker shall submit to the institution of the place of stay a certified statement testifying that he is entitled to benefits in kind. Such certified statement, which shall be issued by the competent institution at the worker's request, if possible before he leaves the territory of the Member State in which he resides, shall specify in particular, where necessary, the maximum period during which benefits in kind may be granted, in accordance with the legislation of the competent State. If the worker does not submit the said certified statement, the institution of the place of stay shall obtain it directly from the competent institution.
2. Article 17 (6) (7) and (9) of the Implementing Regulation shall apply by analogy.
Article 22
Benefits in kind for workers in the case of transfer of residence or return to the country of residence, and for workers authorized to go to another Member State for medical treatment 1. In order to receive benefits in kind under Article 22 (1) (b) (i) of the Regulation, a worker shall submit to the institution of the place of residence a certified statement testifying that he is entitled to continue receiving the said benefits. This certified statement, which shall be issued by the competent institution, shall specify in particular, where necessary, the maximum period during which such benefits may continue to be provided, in accordance with the legislation of the competent State. The certified statement may, at the worker's request, be issued after his departure if, for reasons of force majeure, it cannot be drawn up beforehand.
2. Paragraphs 6, 7 and 9 of Article 17 of the Implementing Regulation shall apply by analogy.
3. Paragraphs 1 and 2 shall apply by analogy in respect of the provisions of benefits in kind in the case referred to in Article 22 (1) (c) (i) of the Regulation.
Article 23
Benefits in kind for members of the family The provisions of Article 21 or Article 22 of the Implementing Regulation, as appropriate, shall apply by analogy in respect of the granting of benefits in kind to members of the family as provided for in
Article 23
(3) of the Regulation.
Article 24
Cash benefits for workers in the case of a stay in a Member State other than the competent State The provisions of Article 18 of the Implementing Regulation shall apply by analogy in respect of the drawing of cash benefits under Article 22 (1) (a) (ii) of the Regulation. However, without prejudice to the requirement to submit a certificate of incapacity for work, a worker who is staying in the territory of a Member State, but not pursuing any professional or trade activity there, shall not be required to submit the notification of having ceased work referred to in Article 18 (1) of the Implementing Regulation.
Implementation of Article 23 (3) of the Regulation
Article 25
Certified statement relating to the members of the family to be taken into account in the calculation of cash benefits 1. In order to draw benefits under Article 23 (3) of the Regulation, a worker shall submit to the competent institution a certified statement relating to the members of his family who are resident in the territory of a Member State other than that wherein the said institution is situated.
2. This certified statement shall be issued by the institution of the place of residence of the members of the family.
It shall be valid for the twelve months following the date of its issue. It may be renewed; in such a case, it shall be valid from the date of its renewal.
The worker shall immediately notify the competent institution of any occurrence necessitating an amendment to the said certified statement. Such amendment shall take effect from the date of such occurrence.
3. In place of the certified statement provided for in paragraph 1, the competent institution may require the worker to produce recent civil status documents relating to the members of his family who are resident in the territory of a Member State other than that wherein the said institution is situated.
Implementation of Article 25 (1) of the Regulation
Article 26
Benefits to unemployed persons who go to a Member State other than the competent State in order to seek employment there 1. In order to receive benefits in cash and in kind under Article 25 (1) of the Regulation for himself and for the members of his family, an unemployed person shall submit to the sickness insurance institution of the place where he has gone a certified statement which he should have applied for, prior to his departure, from the competent sickness insurance institution. If he does not submit the said certified statement, the institution of the place to which he has gone shall obtain it from the competent institution.
This certified statement must testify the existence of the right to the said benefits under the conditions set out in Article 69 (1) (a) of the Regulation; indicate the duration of such right, taking into account Article 69 (1) (c) of the Regulation; and specify the amount of cash benefits to be provided, where appropriate, by way of sickness insurance during the abovementioned period, in the case of incapacity for work or hospitalization.
2. The unemployment insurance institution of the place where the unemployed person has gone shall testify on a copy of the certified statement referred to in Article 83 of the Implementing Regulation, which shall be sent to the sickness insurance institution of that same place, that the conditions laid down in Article 69 (1) (b) of the Regulation have been fulfilled and shall specify the date from which they were fulfilled, and the date from which the unemployed person qualifies for unemployment insurance benefits at the expense of the competent institution.
This certified statement shall be valid for the period laid down in Article 69 (1) (c) of the Regulation, for as long as the conditions are fulfilled. The unemployment insurance institution of the place where the unemployed person has gone shall, within three days inform the said sickness insurance institution if the conditions are no longer satisfied.
3. Article 17 (6) and (7) of the Implementing Regulation shall apply by analogy.
Implementation of Article 25 (3) of the Regulation
Article 27
Benefits in kind for members of the family of unemployed persons in the case of residence in a Member State other than the competent State Article 17 of the Implementing Regulation shall apply by analogy in respect of the granting of benefits in kind to the members of the family of unemployed persons when such members of the family are resident in the territory of a Member State other than the competent State. At the time of the registration of the members of the family of unemployed persons drawing benefits under Article 69 (1) of the Regulation, the certified statement referred to in Article 26 (1) of the Implementing Regulation must be produced. This certified statement shall be valid for the period of time during which the benefits may be granted under Article 69 (1) of the Regulation.
Implementation of Article 26 of the Regulation
Article 28
Benefits in kind for pension claimants and for members of their families 1. In order to receive benefits in kind in the territory of the Member State in which he resides, under Article 26 (1) of the Regulation, a claimant and the members of his family shall register with the institution of the place of residence by submitting a certified statement testifying that he is entitled under the legislation of another Member State to the said benefits for himself and for the members of his family. This certified statement shall be issued by the institution of that other Member State which is responsible for benefits in kind.
2. The institution of the place of residence shall inform the institution which has issued the certified statement of every registration effected in accordance with paragraph 1.
Implementation of Article 28 of the Regulation
Article 29
Benefits in kind for pensioners and members of their families who are not resident in a Member State under whose legislation they are entitled to benefits 1. In order to receive benefits in kind in the territory of the Member State in which he resides, under Article 28 (1) of the Regulation, a pensioner and the members of his family shall register with the institution of the place of residence by submitting a certified statement testifying that he is entitled to the said benefits for himself and for the members of his family, under the legislation or one of the legislations under which a pension is payable.
2. This certified statement shall be issued, at the request of the pensioner, by the institution or one of the institutions responsible for payment of the pension or, where appropriate, by the institution empowered to determine entitlement to benefits in kind, as soon as the pensioner satisfies the conditions for acquisition of the right to such benefits. If the pensioner does not submit the certified statement, the institution of the place of residence shall obtain it directly from the institution or institutions responsible for payment of the pension or, where appropriate, from the institution empowered to issue such certified statement. Whilst awaiting the receipt of this certified statement, the institution of the place of residence may, in the light of the documentary evidence accepted by it, register the pensioner and the members of his family provisionally. This registration shall not be applied by the institution responsible for the payment of benefits in kind until the institution of the place of residence has delivered the certified statement provided for in paragraph 1.
3. The institution of the place of residence shall inform the institution which has issued the certified statement provided for in paragraph 1 of every registration effected in accordance with the provisions of the said paragraph.
4. When making any application for benefits in kind the pensioner must prove to the institution of the place of residence, by means of the receipt or the counterfoil of the money order of the last payment made, that he is still entitled to a pension.
5. The pensioner or the members of his family shall inform the institution of the place of residence of any change in their situation which might alter their entitlement to benefits in kind, in particular any suspension or withdrawal of the pension and any transfer of their residence. The institutions responsible for the pension shall also inform the institution of the pensioner's place of residence of any such change.
6. The Administrative Commission shall, to the extent necessary, fix the procedure for determining the institution which shall bear the cost of the payment of benefits in kind, in the case referred to in Article 28 (2) (b) of the Regulation.
Implementation of Article 29 of the Regulation
Article 30
Benefits in kind for members of the family who are resident in a Member State other than the State in which the pensioner is resident 1. In order to receive benefits in kind in the territory of the Member State in which they reside, under Article 29 (1) of the Regulation, the members of the family shall register with the institution of their place of residence by submitting the documentary evidence required by the legislation which that institution administers for the granting of such benefits to members of a pensioner's family, together with a certified statement testifying that the pensioner is entitled to benefits in kind for himself and for the members of his family. This certified statement, which shall be issued by the institution of the pensioner's place of residence, shall remain valid as long as the institution of his family's place of residence has not been notified of its cancellation. When, however, the said certified statement is issued by a French institution, it shall only be valid for a period of twelve months from the date of issue and must be renewed yearly.
2. When making an application for benefits in kind, the members of the family shall submit to the institution of their place of residence the certified statement referred to in paragraph 1, if the legislation which that institution administers provides that such an application must be accompanied by evidence of entitlement to a pension.
3. The institution of the pensioner's place of residence shall inform the institution of the place of residence of the members of the family of the suspension or withdrawal of the pension, and of any transfer of residence of the pensioner. The institution of the place of residence of the members of the family may, at any time, request the institution of the pensioner's place of residence to furnish it with any information relating to entitlement to benefits in kind.
4. The members of the family shall inform the institution of the place of their residence of any change in their situation which is likely to alter their entitlement to benefits in kind, in particular any transfer of residence.
Implementation of Article 31 of the Regulation
Article 31
Benefits in kind for pensioners and members of their families staying in a Member State other than the one in which they are resident 1. in order to receive benefits in kind under Article 31 of the Regulation, a pensioner shall submit to the institution of the place of stay a certified statement testifying that he is entitled to the said benefits. This certified statement, which shall be issued by the institution of the pensioner's place of residence, if possible before he leaves the territory of the Member State where he resides, shall indicate in particular, where appropriate, the maximum period during which benefits in kind may be granted, in accordance with the legislation of that Member State. If the pensioner does not submit the said certified statement, the institution of the place of stay shall obtain it directly from the institution of the place of residence.
2. Paragraphs 6, 7 and 9 of Article 17 of the Implementing Regulation shall apply by analogy. In such a case, the institution of the pensioner's place of residence shall be considered to be the competent institution.
3. Paragraphs 1 and 2 shall apply by analogy in respect of the granting of benefits in kind to the members of the family covered by Article 31 of the Regulation.
Implementation of Article 35 (1) of the Regulation
Article 32
Institutions to which workers in mines and similar undertakings and members of their families can apply when staying or residing in a Member State other than the competent State 1. In the cases referred to in Article 35 (1) of the Regulation and where, in the country of stay or residence, the benefits provided under the sickness or maternity insurance scheme covering manual workers in the steel industry are equivalent to those provided under the special scheme for workers in mines and similar undertakings, workers belonging to such category and members of their families may apply to the nearest institution in the territory of the Member State in which they are staying or residing, specified in Annex 3 of the Implementing Regulation, even if the latter is an institution administering the scheme covering manual workers in the steel industry, and the said institution shall then be required to provide the benefits.
2. Where the benefits provided under the special scheme for workers in mines and similar undertakings are more advantageous, such workers or the members of their families shall have the option of applying either to the institution responsible for the administration of that scheme, or to the nearest institution in the territory of the Member State in which they are staying or residing which administers the scheme for manual workers in the steel industry. In the latter case, the institution in question shall draw the attention of the person concerned to the fact that by applying to the institution responsible for the administration of the abovementioned special scheme, he will obtain more advantageous benefits; it should, furthermore, inform him of the name and address of such institution.
Implementation of Article 35 (3) of the Regulation
Article 33
Taking into account of the period during which benefits have already been provided by the institution of another Member State For the purposes of implementing Article 35 (3) of the Regulation, the institution of a Member State called upon to provide benefits may request the institution of another Member State to send information relating to the period during which the latter institution has already provided benefits for the same case of sickness or maternity.
Refund by the competent institution of one Member State of expenses incurred during a stay in another Member State
Article 34
1. If it is not possible during a worker's stay in a Member State other than the competent State to complete the formalities provided for in Article 20 (1), (2) and (5), and Articles 21, 23 and 31 of the Implementing Regulation, his expenses shall, upon his application, be refunded by the competent institution of the place of stay.
2. The institution of the place of stay shall, at the request of the competent institution, supply it with the necessary information about such rates.
CHAPTER 3 INVALIDITY, OLD AGE AND DEATH (PENSIONS) Submission and investigation of claims for benefits
Article 35
Claims for invalidity benefits where the worker has been insured exclusively under the legislations specified in Annex III of the Regulation, and in the case referred to in Article 40 (2) of the Regulation 1. In order to receive benefits under Articles 37, 38 and 39 of the Regulation, including the cases referred to in Articles 40 (2), 42 (1) and 42 (2) of the Regulation, a worker shall submit a claim either to the institution of the Member State to whose legislation he was subject at the time of the occurrence of the incapacity for work followed by invalidity or the aggravation of such invalidity, or to the institution of the place of residence, which shall then forward the claim to the first institution, indicating the date on which it was submitted; this date shall be regarded as the date of the submission of the claim to the first institution. However, if sickness insurance cash benefits have been granted, the date on which such cash benefits ceased to be granted shall, where appropriate, be regarded as the date of submission of the pension claim.
2. In the case referred to in Article 41 (1) (b) of the Regulation, the institution with which the claimant was last insured shall notify the amount and the operative date of the benefits due under the legislation which it administers to the institution initially responsible for payment of the benefits. With effect from that date, the benefits due prior to the aggravation of the invalidity shall be cancelled or reduced to an amount not exceeding the supplement referred to in Article 41 (1) (c) of the Regulation.
3. Paragraph 2 shall not apply in the case referred to in Article 41 (1) (d) of the Regulation. In this case, the institution with which the claimant was last insured shall apply to the Netherlands institution in order to ascertain the amount due from that institution.
Article 36
Claims for old age and survivors' benefits (excluding orphans' benefits) and invalidity benefits in cases not referred to in Article 35 of the Implementing Regulation 1. In order to receive benefits under Articles 40 to 51 of the Regulation, except in the cases referred to in Article 35 of the Implementing Regulation, the person concerned shall submit a claim to the institution of the place of residence in accordance with the procedure provided for by the legislation administered by that institution. If the worker has not completed insurance periods under that legislation, the institution of the place of residence shall forward the claim to the institution of the Member State to whose legislation the claimant was last subject, indicating the date on which the claim was submitted. That date shall be regarded as the date on which the claim was submitted to the latter institution.
2. Where a claimant resides in the territory of a Member State under whose legislation the worker has not completed insurance periods, he may send his claim to the institution of the Member State to whose legislation the worker was last subject.
3. Where a claimant resides in the territory of a State which is not a Member State, he shall submit his claim to the competent institution of that Member State to whose legislation the worker was last subject.
Should the claimant send his claim to the institution of the Member State of which he is a national, the latter shall forward such claim to the competent institution.
4. A claim for benefits sent to the institution of one Member State shall automatically involve the concurrent award of benefits under the legislation of all the Member States in question whose conditions the claimant satisfies except where, under
Article 44
(2) of the Regulation, the claimant asks for postponement of any old age benefits to which he would be entitled.
Article 37
Documents and information which should accompany claims to the benefits referred to in Article 36 of the implementing Regulation The submission of the claims under Article 36 of the Implementing Regulation shall be subject to the following rules:
(a) the claim must be accompanied by the requisite supporting documents and must be drawn up on the form provided for by the legislation,
(i) of the Member State in whose territory the claimant resides, in the case referred to in Article 36 (1);
(ii) of the Member State to which the worker was last subject, in the cases referred to in Article 36 (2) and (3);
(b) the accuracy of the information supplied by the claimant must be proved by official documents attached to the claim form, or confirmed by the competent bodies of the Member State in whose territory the claimant resides;
(c) the claimant must indicate, in so far as is possible, either the institution or institutions administering insurance in respect of invalidity, old age or death (pensions) of any Member State with which the worker has been insured, or the employer or employers for whom he has worked in the territory of any Member State, by producing any employment certificates which he may have in his possession;
(d) if, under Article 44 (2) of the Regulation, the claimant asks for the postponement of the award of any old age benefits to which he would be entitled under the legislation of one or more Member States he may specify the legislation under which he is claiming benefits.
Article 38
Certified statements relating to the members of the family to be taken into account when establishing the amount of the benefit 1. In order to draw benefits under Article 39 (4) or Article 47 (3) of the Regulation, the claimant shall submit a certified statement relating to the members of his family, his children excepted, who are residing in the territory of a Member State other than that in which the institution responsible for the award of benefits is situated.
This certified statement shall be issued by the sickness insurance institution of the place of residence of the members of the family, or by another institution designated by the competent authority of the Member State in whose territory they are resident. The second and third subparagraphs of Article 25 (2) of the Implementing Regulation shall apply by analogy.
In place of the certified statement provided for in the first paragraph, the institution responsible for the award of benefits may require the claimant to supply recent civil status documents relating to the members of his family, his children excepted, who are residing in the territory of a Member State other than the State in which the said institution is situated.
2. In the case referred to in paragraph 1, if the legislation administered by the institution in question requires that the members of the family should live under the same roof as the pensioner, the fact that such members of the family who do not satisfy that condition are, nevertheless, mainly dependent on the claimant must be established by documents proving that the claimant is regularly sending them a part of his earnings.
Article 39
Investigation of claims for invalidity benefits in the case where the worker has been insured exclusively under the legislations specified in Annex III of the Regulation 1. If a worker has submitted a claim for invalidity benefits, and the institution establishes that the provisions of Article 37 (1) of the Regulation apply, that institution shall, where necessary, obtain from the institution with which the worker was last insured a certified statement of the insurance periods completed by him under the legislation administered by that last institution.
2. Where it is necessary to take into account insurance periods previously completed under the legislation of any other Member State in order to satisfy the conditions of the legislation of the competent State, the provisions of paragraph 1 shall apply by analogy.
3. In the case referred to in Article 39 (3) of the Regulation, the institution which has investigated the claimant's case shall forward his file to the institution with which the worker was last insured.
4. Articles 41 to 50 of the Implementing Regulation shall not apply to the investigation of claims referred to in paragraphs 1, 2 and 3.
Article 40
Determination of the degree of invalidity In order to determine the degree of invalidity, the institution of the Member State shall take into consideration the documents and medical reports and the information of an administrative nature obtained by the institution of any other Member State. Each institution shall, however, retain the right to have the claimant examined by a doctor of its own choice except where Article 40 (3) of the Regulation applies.
Investigation of claims for benefits in respect of invalidity, old age and survivors in the cases referred to in Article 36 of the Implementing Regulation
Article 41
Determination of the investigating institution 1. Claims for benefit shall be investigated by the institution (hereinafter called the 'investigating institution') to which they have been sent or forwarded in accordance with Article 36 of the Implementing Regulation.
2. The investigating institution shall forthwith notify claims for benefits to all the institutions concerned on a special form, so that the claims may be investigated simultaneously and without delay by all these institutions.
Article 42
Forms to be used for the investigation of claims for benefits 1. When investigating claims for benefits, the investigating institution shall use a form which will include, in particular, a statement and a summary of the insurance periods completed by the worker under the legislations of all the Member States concerned.
2. These forms, when forwarded to the institution of any other Member State, shall take the place of supporting documents.
Article 43
Procedure to be followed by the institutions concerned in the investigation of a claim 1. The investigating institution shall enter on the form provided for in Article 42 (1) of the Implementing Regulation the insurance periods completed under the legislation which it administers and it shall forward a copy of that form to the institution administering insurance in respect of invalidity, old age or death (pensions) of any Member State with which the worker has been insured enclosing, where appropriate, any employment certificates produced by the claimant.
2. Where only one other institution is involved, that institution shall complete the said form by indicating:
(a) the insurance periods completed under the legislation which it administers;
(b) the amount of benefit which the claimant could claim in respect of those insurance periods only;
(c) the theoretical amount and the actual amount of benefits calculated in accordance with Article 46 (2) of the Regulation.
The form, thus completed, shall be returned to the investigating institution.
If a right to benefits is acquired taking into account only the insurance periods completed under the legislation administered by the institution of the second Member State, and if the amount of benefit corresponding to those insurance periods can be established without delay, whereas the calculation procedure referred to in (c) requires an appreciably longer period of time, the form shall be returned to the investigating institution with the information referred to in (a) and (b); the information referred to in (c) shall be forwarded to the investigating institution as soon as possible.
3. If two or more other institutions are involved, each one of those institutions shall complete the said form by indicating the insurance periods completed under the legislation which it administers, and shall return it to the investigating institution.
If a right to benefit is acquired taking into account only the insurance periods completed under the legislation administered by one or more of those institutions, and if the amount of benefit corresponding to those insurance periods can be determined without delay, the investigating institution shall be simultaneously notified of that amount and of the insurance periods; if the determination of the amount involves some delay, the investigating institution shall be notified of that amount as soon as it has been determined.
On receipt of all the forms giving information concerning insurance periods and, where applicable, the amount or amounts due under the legislation of one or more of the Member States concerned, the investigating institution shall forward a copy of the forms thus completed to each one of the institutions concerned; each such institution shall specify thereon the theoretical amount and the actual amount of the benefits, calculated in accordance with Article 46 (2) of the Regulation, and shall return the form to the investigating institution.
4. As soon as the investigating institution, upon receipt of the information referred to in paragraphs 2 or 3, establishes the fact that Articles 40 (2) or 48 (2) or (3) of the Regulation should be applied, it shall inform the other institutions concerned accordingly.
5. In the case provided for in Article 37 (d) of the Implementing Regulation, the institutions of the Member States to whose legislation the claimant has been subject but to whom he has applied for postponement of the award of the benefits, shall enter on the form provided for in Article 42 (1) of the Implementing Regulation only the insurance periods completed by the claimant under the legislation which they administer.
Article 44
Institution empowered to take a decision relating to the degree of invalidity 1. Subject to the provisions of paragraphs 2 and 3, only the investigating institution shall be empowered to take the decision referred to in Article 40 (3) of the Regulation concerning the degree of invalidity of the claimant. It shall take such a decision as soon as it is in a position to determine whether, taking account, where appropriate, of Article 45 of the Regulation, the conditions for entitlement fixed by the legislation which it administers are fulfilled. It shall notify such decision forthwith to the other institutions concerned.
2. If, taking account of the provisions of Article 45 of the Regulation, the conditions for entitlement (other than those relating to the degree of invalidity) fixed by the legislation administered by the investigating institution are not fulfilled, it shall notify this to the institution competent in respect of invalidity of that one to whose legislation the worker was last subject.
This institution shall, if the conditions for entitlement fixed by the legislation which it administers are fulfilled, be empowered to take the decision relating to the degree of invalidity of the claimant and shall forthwith notify that decision to the other institutions concerned.
3. Where necessary, the matter may be referred back, under the same conditions, to the institution competent in respect of invalidity of the Member State to whose legislation the worker was first subject.
Article 45
Provisional payment of benefits, and advance payments of benefits 1. If the investigating institution establishes that the claimant is entitled to benefits under the legislation which it administers without having recourse to insurance periods completed under the legislation of other Member States, it shall pay such benefits immediately on a provisional basis.
2. If the claimant is not entitled to benefits under paragraph 1 but, from information supplied to the investigating institution pursuant to Article 43 (2) or (3) of the Implementing Regulation, it transpires that a right to benefits is acquired under the legislation of another Member State taking into account only the insurance periods completed under that legislation, the institution which administers the said legislation shall pay such benefits on a provisional basis as soon as the investigating institution has informed it of its obligation to do so.
3. If, in the case referred to in paragraph 2, a right to benefit is acquired under the legislation of more than one Member State, taking into account only those insurance periods completed under each one of those legislations, the payment of benefits on a provisional basis shall be the responsibility of the institution which first informed the investigating institution of the existence of such a right; it shall be the duty of the investigating institution to inform the other institutions concerned.
4. The institution required to pay benefits under paragraphs 1, 2 or 3 shall forthwith inform the claimant of the fact, drawing his attention explicitly to the provisional nature of the measures taken and to the fact that it is not open to appeal.
5. If no benefit is payable to the claimant on a provisional basis under paragraphs 1, 2 or 3, but it transpires from information received that a right is acquired under Article 46 (2) of the Regulation, the investigating institution shall pay him an appropriate recoverable advance, the amount of which shall be as close as possible to the amount he will probably be awarded under Article 46 (2) of the Regulation.
6. Two Member States or the competent authorities of those Member States may agree to apply other methods of payment of benefits on a provisional basis in cases where only the institutions of those States are concerned.
Any such agreements which are concluded on this subject shall be notified to the Administrative Commission.
Article 46
Calculation of benefits in the event of overlapping of insurance periods 1. For the calculation of the theoretical and actual amount of benefit in accordance with Article 46 (2) (a) and (b) of the Regulation, the rules provided for in Article 15 (1) (b), (c) and (d) of the Implementing Regulation shall apply.
The actual amount thus established shall be increased by the amount corresponding to the periods of voluntary or optional continued insurance, and shall be determined in accordance with the legislation under which these insurance periods were completed.
2. For the purposes of Article 46 (3) of the Regulation, the amounts of benefit corresponding to periods of voluntary or optional continued insurance shall not be taken into account.
3. Paragraphs 1 and 2 shall apply by analogy in the case of the optional complementary insurance referred to in the second subparagraph of Article 15 (3) of the Regulation.
For the purposes of German legislation, contributions which are not taken into account under Article 15 (1) (b) of the Implementing Regulation shall be taken into account for the calculation of the additional amounts of the optional complementary insurance. Paragraphs 1 and 2 shall apply by analogy.
Article 47
Final calculation of the amount of benefits due from institutions applying Article 46 (3) of the Regulation In the case referred to in the second subparagraph of Article 46 (3) of the Regulation, the investigating institution shall calculate and notify to each of the institutions concerned the final amount of benefits which each institution must grant.
Article 48
Notification to the claimant of the decisions of the institutions 1. The final decisions taken by each of the institutions concerned - taking account, where appropriate, of the notification referred to in Article 47 of the Implementing Regulation - shall be forwarded to the investigating institution. Each decision must specify the legal remedies and periods allowed for appeals provided for by the legislation concerned.
Upon receipt of all such decisions, the investigating institution shall notify the claimant thereof, in his own language, by means of a summarized statement to which the said decisions shall be attached. Periods allowed for appeals shall run only from the date of receipt of the summarized statement by the claimant.
2. On despatch to the claimant of the summarized statement provided for in paragraph (1), the investigating institution shall simultaneously forward a copy to each one of the institutions concerned, enclosing with it a copy of the decisions of the other institutions.
Article 49
Recalculation of benefits 1. The provisions of Articles 45 and 47 of the Implementing Regulation shall apply by analogy for the application of Articles 49 (2) and (3) and 51 (2) of the Regulation.
2. In the event of recalculation, withdrawal or suspension of benefit, the institution which has taken such a decision shall forthwith notify the fact to the person concerned and to each institution with which the said person has established entitlement to benefit, if necessary through the intermediary of the investigating institution. The decision must specify the legal remedies and periods allowed for appeals provided for by the legislation concerned. The periods allowed for appeals shall run only from the date of receipt of the decision by the person concerned.
Article 50
Measures designed to accelerate the award of benefits 1. (a) (i) Where a worker who is a national of one Member State becomes subject to the legislation of another Member State, the institution competent in respect of pensions of the latter Member State shall, using all the means at its disposal and at the time of registration of the said worker, forward to the body designated by the competent authority of that same Member State (country of employment), all information relating to the identification of the worker, the date on which he commenced employment, and the name of the said competent institution and the insurance number allotted by the latter.
(ii) Moreover, the competent institution referred to in (i) shall also, as far as possible, forward to the body designated under subparagraph (i) any other information which may facilitate and accelerate the ultimate award of the pensions.
(iii) Such information shall be forwarded, under conditions fixed by the Administrative Commission, to the body designated by the competent authority of the Member State concerned.
(iv) For the implementation of the provisions of subparagraphs (i), (ii) and (iii), stateless persons and refugees shall be deemed to be nationals of the Member State to whose legislation they were first subject.
(b) The institutions concerned shall, at the request of the worker, or of the institution with which he is currently insured, draw up the insurance history of the worker, starting not later than one year before the date on which he will reach pensionable age.
2. The Administrative Commission shall fix the methods for implementing paragraph (1).
Administrative checks and medical examinations
Article 51
1. When a person in receipt of benefits, in particular:
(a) invalidity benefits,
(b) old age benefits awarded in the event of unfitness for work,
(c) old age benefits awarded to elderly unemployed persons,
(d) old age benefits awarded in the event of cessation of a professional or trade activity,
(e) survivors' benefits awarded in the event of invalidity or unfitness for work,
(f) benefits awarded on condition that the means of the recipient do not exceed a prescribed limit,
is staying or residing in the territory of a Member State other than the State in which the institution responsible for payment is situated, administrative checks and medical examinations shall be carried out, at the request of that institution, by the institution of the place of stay or residence of the recipient in accordance with the procedures laid down by the legislation administered by the latter institution. The institution responsible for payment shall, however, retain the right to arrange for the examination of the recipient by a doctor of its own choice.
2. If it is established that the recipient referred to in paragraph (1) is employed or has means in excess of the prescribed limit while receiving benefits, the institution of the place of stay or residence shall send a report to the institution responsible for payment which has requested the check or examination. This report shall indicate in particular the nature of the employment, the amount of earnings or means which the person concerned has had during the last complete quarter, the normal remuneration paid in the same area to a worker at the same level as the person concerned in the occupation which he followed before becoming an invalid over a reference period to be determined by the institution responsible for payment and, where appropriate, the opinion of a medical expert on the state of health of the person concerned.
Article 52
When, after suspension of the benefits which he was receiving, the person concerned recovers his right to benefits whilst residing in the territory of a Member State other than the competent State, the institutions concerned shall exchange all information pertinent to the resumption of the provision of the said benefits.
Payment of Benefits
Article 53
Method of payment of benefits 1. If the institution responsible for payment in a Member State does not pay directly to persons entitled to benefits who are residing in the territory of another Member State the benefits due to them, such benefits shall be paid, at the request of the institution responsible for payment, by the liaison body of the latter Member State or by the institution of the place of residence of the said persons entitled to benefits in accordance with the procedure, provided for in
Articles 54 to 58 of the Implementing Regulation; if the institution responsible for payment pays the benefits directly to the persons entitled thereto, it shall notify the institution of the place of residence of this fact. The payment procedure to be applied by the institution of the Member States is specified in Annex 6.
2. Two or more Member States or the competent authorities of those States may agree on other procedures for the payment of benefits in cases where the competent institutions of those Member States are the only ones concerned. Any agreements concluded on this subject shall be notified to the Administrative Commission.
3. The provisions of agreements relating to the payment of benefits which apply on the day preceding the entry into force of the Regulation shall continue to apply provided that they are specified in Annex 5.
Article 54
Notification to the paying body of the detailed schedule of payments to be made The institution responsible for payment of benefits shall send to the liaison body of the Member State in whose territory the person entitled to benefits is residing, or to the institution of the place of residence (both hereinafter called 'paying body') a detailed schedule of payments to be made which should reach the paying body not later than twenty days before the date on which those benefits become due.
Article 55
Payment of amounts due into the account of the paying body 1. Ten days before the date on which the benefits fall due, the institution responsible for payment shall pay, in the currency of the Member State in whose territory it is situated, the sum necessary for the payments specified in the schedule provided for in Article 54 of the Implementing Regulation. Payment shall be made through the National Bank or through another bank of the Member State in whose territory the institution responsible for payment is situated, into an account opened in the name of the National Bank or of another bank of the Member State in whose territory the paying body is situated, in favour of that body. Such payment shall discharge all liability. The institution responsible for payment shall, at the same time, send notification of payment to the paying body.
2. The bank into whose account payment has been made shall credit the paying body with the exchange value of the payment in the currency of the Member State in whose territory that body is situated.
3. The names and seats of the banks referred to in paragraph 1 are listed in Annex 7.
Article 56
Payment of amounts due by the paying body to persons entitled to benefits 1. The payments specified in the schedule provided for in Article 54 of the Implementing Regulation shall be paid to the person entitled to benefits by the paying body on behalf of the institution responsible for payment. Such payments shall be made according to the procedures laid down by the legislation administered by the paying body.
2. As soon as the paying body or any other body designated by it learns of any circumstance justifying the suspension or withdrawal of benefits, it shall discontinue all payment. Such shall also be the case when the person entitled to benefits transfers his residence to the territory of another State.
3. The paying body shall advise the institution responsible for payment of benefits of the reason for any non-payment. In the event of the death of the person entitled to benefits or of his spouse, or in the case of the re-marriage of a widow or widower, the paying body shall notify the said institution of the date thereof.
Article 57
Settlement of accounts in respect of the payments referred to in Article 56 of the Implementing Regulation 1. The accounts in respect of the payments referred to in Article 56 of the Implementing Regulation shall be settled at the end of each payment period in order to determine amounts actually paid to persons entitled to benefits or to their legal or authorized representatives as well as amounts unpaid.
2. The total amount, expressed in figures and in words, in the currency of the Member State in whose territory the institution responsible for payment is situated, shall be certified as being in accordance with the payments made by the paying body and endorsed with the signature of that body's representative.
3. The paying body shall guarantee that the payments so determined have been properly made.
4. The difference between the sums paid by the institution responsible for payment, expressed in the currency of the Member State in whose territory that institution is situated, and the value, expressed in the same currency, of the payments accounted for by the paying body shall be entered against the sums to be paid subsequently under the same heading by the institution responsible for payment.
Article 58
Expenses incurred in the payment of benefits The expenses incurred in the payment of benefits, particularly postal and bank charges, may be recovered from the recipients by the paying body under the conditions provided for by the legislation administered by that body.
Article 59
Notification of transfer of residence of the person entitled to benefits When a person entitled to benefits due under the legislation of one or more Member States transfers his residence from the territory of one State to that of another State, he shall notify this fact to the institution or institutions responsible for the payment of such benefits and to the paying body.
CHAPTER 4 ACCIDENTS AT WORK AND OCCUPATIONAL DISEASES Implementation of Articles 52 and 53 of the Regulation
Article 60
Benefits in kind in the case of residence in a Member State other than the competent State 1. In order to receive benefits in kind under Article 52 (a) of the Regulation, a worker shall submit to the institution of the place of residence a certified statement testifying that he is entitled to such benefits in kind. This certified statement, based upon information supplied by the employer, where appropriate, shall be issued by the competent institution. Moreover, if the legislation of the competent State so provides, the worker shall submit to the institution of the place of residence a receipt from the competent institution of notification of an accident at work or of an occupational disease. If the worker does not submit such documents, the institution of the place of residence shall obtain them directly from the competent institution and, pending their arrival, it shall grant him the benefits in kind under sickness insurance, provided that he satisfies the conditions for entitlement thereto.
2. That certified statement shall remain valid until the institution of the place of residence receives notification of its cancellation. However, when the said certified statement has been issued by a French institution, it shall only be valid for three months following the date of its issue, and must be renewed every three months.
3. If a worker is a seasonal worker, the certified statement referred to in paragraph 1 shall be valid for the whole of the expected duration of the seasonal work unless, in the meanwhile, the competent institution notifies the institution of the place of residence of its cancellation.
4. When applying for benefits in kind, the worker shall submit the supporting documents required for the granting of benefits in kind under the legislation of the Member State in whose territory he resides.
5. In the event of hospitalization the institution of the place of residence shall, within three days of becoming aware of the fact, notify the competent institution of the date of entry into hospital, the probable duration of hospitalization and the date of leaving hospital.
6. The institution of the place of residence shall notify the competent institution in advance of any decision relating to the granting of the benefits in kind included in the list referred to in Article 24 (2) of the Regulation, enclosing the necessary supporting documents. The competent institution shall have fifteen days from the day on which such information is sent within which to raise any objection and to state the reasons on which such objection is based; if, at the end of that period, no such objection has been raised, the institution of the place of residence shall grant the benefits in kind. Where such benefits in kind have to be granted in a case of extreme urgency, the institution of the place of residence shall forthwith inform the competent institution thereof.
7. The worker shall inform the institution of the place of residence of any change in his situation likely to alter his entitlement to benefits in kind, in particular any cessation of, or change in, employment or any transfer of residence or stay. Likewise, should the worker cease to be insured or cease to be entitled to benefits in kind the competent institution shall inform the institution of the place of residence accordingly. The institution of the place of residence may, at any time, request the competent institution to supply it with any information relating to the worker's insurance or to his entitlement to benefits in kind.
8. In the case of frontier workers, medicinal products, bandages, spectacles and small appliances may be issued, and laboratory analyses and tests carried out, only in the territory of the Member State in which they have been prescribed or recommended in accordance with the legislation of that Member State.
9. Two or more Member States or the competent authorities of those Member States may, having received the Opinion of the Administrative Commission, agree to introduce other implementing provisions.
Article 61
Cash benefits other than pensions in the case of residence in a Member State other than the competent State 1. In order to draw cash benefits other than pensions under Article 52 (b) of the Regulation, a worker shall, within three days from the commencement of incapacity for work, apply to the institution of the place of residence by submitting a notification of having ceased work or, if the legislation administered by the competent institution or by the institution of the place of residence so provides, a certificate of incapacity for work issued by the doctor treating the worker concerned.
2. If the doctors treating the worker concerned in the country of residence do not issue certificates of incapacity for work, the worker shall apply directly to the institution of the place of residence within the time-limit fixed by the legislation which it administers.
That institution shall immediately have the incapacity for work medically confirmed and the certificate referred to in paragraph 1 drawn up. Such certificate shall state the probable duration of the incapacity, and shall be forwarded to the competent institution forthwith.
3. In cases where paragraph 2 does not apply, the institution of the place of residence shall, as soon as possible and in any event within the three days following the date on which the worker applied to it, have the worker medically examined as if he were insured with that institution. The report of the examining doctor shall indicate, in particular, the probable duration of the incapacity for work, and shall be forwarded to the competent institution by the institution of the place of residence within the three days following the date of the examination.
4. The institution of the place of residence shall subsequently carry out any necessary administrative checks or medical examinations of the worker as if he were insured with that institution. As soon as it establishes that the worker is fit to resume work it shall forthwith notify the worker and the competent institution thereof, stating the date on which the worker's incapacity ceased. Without prejudice to the provisions of paragraph 6, the notification to the worker shall be treated as a decision taken on behalf of the competent institution.
5. In all cases, the competent institution shall reserve the right to have the worker examined by a doctor of its own choice.
6. If the competent institution decides to withhold the cash benefits because the worker has not completed the formalities laid down by the legislation of the country of residence, or if it establishes that the worker is fit to resume work, it shall notify the worker of its decision and shall simultaneously send a copy of such decision to the institution of the place of residence.
7. When the worker resumes work, he shall notify the competent institution accordingly if such notification is required by the legislation administered by that institution.
8. The competent institution shall pay cash benefits by the appropriate method, in particular by international money order, and shall inform the institution of the place of residence and the worker accordingly. Where cash benefits are paid by the institution of the place of residence on behalf of the competent institution, the latter shall inform the worker of his rights and shall notify the institution of the place of residence of the amount of the cash benefits, the dates for payment and the maximum period during which they should be granted, in accordance with the legislation of the competent State.
9. Two or more Member States or the competent authorities thereof may, having received the Opinion of the Administrative Commission, agree to introduce other implementing provisions.
Implementation of Article 55 of the Regulation
Article 62
Benefits in kind in the case of a stay in a Member State other than the competent State 1. In order to receive benefits in kind, a worker covered by Article 14 (1) (a) (i), or (2) (a) of the Regulation shall submit to the institution of the place of stay the certificate provided for in Article 11 of the Implementing Regulation. A worker who has submitted such certificate shall be presumed to have satisfied the conditions for acquisition of the right to benefits in kind.
2. In order to receive benefits in kind, a worker employed in international transport as mentioned in Article 14 (1) (b) of the Regulation who, in the course of his employment, goes to the territory of a Member State other than the competent State shall, as soon as possible, submit to the institution of the place of stay a special certified statement issued during the current calendar month or during the two preceding calendar months by the employer or his agent. Such certified statement shall state, in particular, the date from which the worker has been employed by the said employer and the name and address of the competent institution. A worker who has submitted such certified statement shall be presumed to have satisfied the conditions for acquisition of the right to benefits in kind.
If a worker is unable to contact the institution of the place of stay before receiving medical treatment he shall, nevertheless, receive such treatment on presentation of the said certified statement as if he were insured with that institution.
3. The institution of the place of stay shall within three days inquire of the competent institution whether a worker covered by paragraph 1 or 2 satisfies the conditions for acquisition of the right to benefits in kind. The institution of the place of stay shall provide the benefits in kind until it receives a reply from the competent institution, but for not more than thirty days.
4. The competent institution shall send its reply to the institution of the place of stay within ten days of the receipt of the request from that institution. If that reply is in the affirmative the competent institution shall indicate, if necessary, the maximum period during which benefits in kind may be granted, in accordance with the legislation which it administers, and the institution of the place of stay shall continue to provide the said benefits.
5. Benefits in kind provided by virtue of the presumption made in paragraph 1 or 2 shall be reimbursed as provided for in Article 36 (1) of the Regulation.
6. In place of the certificate or certified statement provided for in paragraphs 1 and 2 respectively, workers covered these paragraphs may submit to the institution of the place of stay a certified statement as provided for in paragraph 7.
7. In order to receive benefits in kind under Article 55 (1) (a) (i) of the Regulation, except in cases where a presumption is made under paragraphs 1 and 2, a worker shall submit to the institution of the place of stay a certified statement testifying that he is entitled to benefits in kind. Such certified statement, which shall be issued by the competent institution, if possible before the worker leaves the territory of the Member State in which he resides, shall specify in particular, where necessary, the maximum period during which benefits in kind may be granted, in accordance with the legislation of the competent State. If the worker does not submit the said certified statement, the institution of the place of stay shall obtain it from the competent institution.
8. Article 60 (5) (6) and (9) of the Implementing Regulation shall apply by analogy.
Article 63
Benefits in kind for workers who transfer their residence or return to their country of residence, and for workers authorized to go to another Member State for medical treatment 1. In order to receive benefits in kind under Article 55 (1) (b) (i) of the Regulation, a worker shall submit to the institution of the place of residence a certified statement testifying that he is entitled to continue receiving the said benefits. This certified statement, which shall be issued by the competent institution, shall specify in particular, where necessary, the maximum period during which such benefits may continue to be provided, in accordance with the provisions of the legislation of the competent State. The certified statement may, at the worker's request, be issued after his departure if, for reasons of force majeure, it cannot be drawn up beforehand.
2. Article 60 (5), (6) and (9) of the Implementing Regulation shall apply by analogy.
3. Paragraphs 1 and 2 shall apply by analogy in respect of the provision of benefits in kind in the case referred to in Article 55 (1) (c) (i) of the Regulation.
Article 64
Cash benefits other than pensions in the case of a stay in a Member State other than the competent State Article 61 of the Implementing Regulation shall apply by analogy in respect of the drawing of cash benefits, other than pensions, under Article 55 (1) (a) (ii) of the Regulation. However, without prejudice to the obligation to submit a certificate of incapacity for work, a worker who is staying in the territory of a Member State without pursuing any professional or trade activity there shall not be required to submit the notification of having ceased work referred to in Article 61 (1) of the Implementing Regulation.
Implementation of Articles 52 to 56 of the Regulation
Article 65
Declarations, investigations and exchange of information between institutions relating to an accident at work sustained in, or an occupational disease contracted in, a Member State other than the competent State 1. When an accident at work is sustained in, or an occupational disease is diagnosed for the first time in, the territory of a Member State other than the competent State, a declaration of the accident at work or occupational disease must be made in accordance with the provisions of the legislation of the competent State without prejudice to any legal provisions in force in the territory of the Member State in which the accident at work was sustained or in which the occupational disease was first diagnosed, and those provisions shall in such a case remain applicable. This declaration shall be sent to the competent institution and a copy shall be sent to the institution of the place of residence or to the institution of the place of stay.
2. The institution of the Member State in whose territory the accident at work was sustained or in which the occupational disease was first diagnosed, shall forward to the competent institution, in duplicate, the medical certificates drawn up in that territory and any relevant information which the latter institution may request.
3. If, in the case of an accident sustained while travelling in the territory of a Member State other than the competent State, there are grounds for holding an enquiry in the territory of the first Member State, an investigator may be appointed for that purpose by the competent institution, which shall so inform the authorities of that Member State. Those authorities shall assist the said investigator, in particular by appointing a person to assist him in the consultation of official reports and any other documents relating to the accident.
4. At the end of the treatment, a detailed report shall be forwarded to the competent institution together with medical certificates concerning the permanent consequences of the accident or disease, and in particular the present condition of the victim, and the recovery from the injuries or their consolidation. The relevant fees shall be paid by the institution of the place of residence or the institution of the place of stay, as the case may be, in accordance with the rate applied by that institution, but shall be chargeable to the competent institution.
5. The competent institution shall, on request, notify the institution of the place of residence or the institution of the place of stay, as the case may be, of the decision determining the date of recovery from the injuries or their consolidation and, where appropriate, the decision relating to the granting of a pension.
Article 66
Disputes concerning the occupational nature of the accident or disease 1. When, in the cases referred to in Articles 52 or 55 (1) of the Regulation, the competent institution disputes the application of the legislation relating to accidents at work or occupational diseases, it shall forthwith notify that fact to the institution of the place of residence or institution of the place of stay which provided the benefits in kind; those benefits shall then be considered as coming under sickness insurance and shall continue to be provided thereunder upon presentation of the certificates or certified statements referred to in Articles 20 and 21 of the Implementing Regulation.
2. When a final decision has been reached on this subject, the competent institution shall forthwith notify the fact to the institution of the place of residence or to the institution of the place of stay which provided the benefits in kind. Where the case is not one of an accident at work or an occupational disease that institution shall continue to provide the said benefits in kind under sickness insurance if the worker is entitled thereto. In other cases, the benefits in kind received by the worker under sickness insurance shall be considered as benefits for an accident at work or an occupational disease.
Implementation of Article 57 of the Regulation
Article 67
Procedure in the case of exposure to the risk of an occupational disease in several Member States 1. In the case covered by Article 57 (1) of the Regulation, notification of the occupational disease shall be forwarded either to the institution competent in respect of occupational diseases of the Member State under whose legislation the person suffering from the disease last pursued an activity likely to cause the disease in question, or to the institution of the place of residence, which shall forward the notification to the said competent institution.
2. If the competent institution referred to in paragraph 1 ascertains that an activity which might cause the occupational disease in question was last pursued under the legislation of another Member State, it shall forward the notification and the accompanying documents to the corresponding institution of that Member State.
3. When the institution of the Member State under whose legislation the person suffering from the disease last pursued an activity which might cause the occupational disease in question ascertains that such person or his survivors do not satisfy the conditions of that legislation, taking into account the provisions of Article 57 (2) and Article 57 (3) (a) and (b) of the Regulation, the said institution shall:
(a) forward, without delay, to the institution of the Member State under whose legislation the person suffering from the disease previously pursued an activity which might cause the disease in question, the notification and all accompanying documents, including the findings and reports of the medical examinations arranged by the first institution, and a copy of the decision referred to under (b);
(b) simultaneously notify the person concerned of its decision, indicating in particular the reasons for the refusal of benefits, the grounds and time-limits for appeal, and the date on which the file was forwarded to the institution referred to under (a).
4. Where necessary the case should be referred back, in accordance with the same procedure, to the corresponding institution of the Member State under whose legislation the person suffering from the disease first pursued the activity which might cause the occupational disease in question.
Article 68
Exchanges of information between institutions in the event of an appeal against a decision to reject a claim - Payment of advances in the event of such an appeal 1. Where an appeal is lodged against a decision to reject a claim taken by the institution of one of the Member States under whose legislation the person suffering from the disease pursued an activity which might cause the occupational disease in question, that institution shall so inform the institution to which the notification has been forwarded in accordance with the procedure laid down in Article 67 (3) of the Implementing Regulation, and shall subsequently notify it of the final decision reached.
2. If the right to benefits was acquired under the legislation administered by the latter institution, taking into account Article 57 (2) and (3) (a) and (b) of the Regulation, that institution shall pay advances up to an amount to be determined, where necessary, after consultation with the institution against whose decision the appeal was lodged. The latter institution shall reimburse the amount of the advances paid if, as a result of the appeal, it is required to provide the benefits. That amount shall then be deducted from the total amount of the benefits due to the person concerned.
Article 69
Apportionment of the cost of cash benefits in cases of sclerogenic pneumoconiosis The following rules shall apply for the implementation of Article 57 (3) (c) of the Regulation:
(a) the competent institution of the Member State under whose legislation cash benefits are granted pursuant to Article 57 (1) of the Regulation (hereinafter called 'Institution responsible for payment of cash benefits') shall use a form containing, in particular, a statement and summary of all insurance periods (old-age insurance) completed by the person suffering from the disease under the legislation of each one of the Member States concerned;
(b) the institution responsible for payment of cash benefits shall forward that form to all the old-age insurance institutions with which the person suffering from the disease was insured in each of those States; each one of the said institutions shall enter on the form the insurance periods (old-age insurance) completed under the legislation which it administers and shall return the form to the institution responsible for payment of cash benefits;
(c) the institution responsible for payment of cash benefits shall then apportion the costs between itself and the other competent institutions concerned; it shall notify the latter of such apportionment for their approval together with appropriate supporting evidence in particular as regards the total amount of cash benefits granted and the calculation of the percentages of the apportionment;
(d) at the end of each calendar year, the institution responsible for payment of cash benefits shall forward to each of the other competent institutions concerned a statement of cash benefits paid during the financial year under consideration, showing the amount due from each of them according to the apportionment provided for under (c); each one of those institutions shall refund the amount due to the institution responsible for payment of cash benefits as soon as possible, and within three months at the latest.
Implementation of Article 58 (3) of the Regulation
Article 70
Certified statement relating to the members of the family to be taken into consideration when calculating cash benefits, including pensions 1. In order to draw benefits under Article 58 of the Regulation, a claimant shall submit a certified statement relating to the members of his family who are residing in the territory of a Member State other than the one in which the institution responsible for the award of cash benefits is situated.
This certified statement shall be issued by the sickness insurance institution of the place of residence of the members of the family or by another institution designated by the competent authority of the Member State in whose territory they are resident. The second and third subparagraphs of Article 25 (2) of the Implementing Regulation shall apply by analogy.
In place of the certified statement provided for in the first subparagraph, the institution responsible for the award of cash benefits may require the claimant to produce recent civil-status documents relating to members of his family who are resident in the territory of a Member State other than the one wherein the said institution is situated.
2. In the case referred to in paragraph 1, if the legislation administered by the institution concerned requires the members of the family to live under the same roof as the claimant, the fact that the said members of the family, whilst not satisfying this condition are, nevertheless, mainly dependent on the claimant must be established by documents proving the regular transmission of part of the claimant's earnings.
Implementation of Article 60 of the Regulation
Article 71
Aggravation of an occupational disease 1. In the cases covered by Article 60 (1) of the Regulation, the worker shall supply the institution of the Member State from which he is claiming rights to benefits with all information relating to benefits previously granted in respect of the occupational disease in question. That institution may apply to any other institution which has previously been competent in order to obtain any information which it considers necessary.
2. In the case covered by Article 60 (1) (c) of the Regulation, the competent institution required to pay the cash benefits shall notify the other institution concerned, for its approval, of the amount of costs to be borne by the latter institution as a result of the aggravation, together with appropriate supporting evidence. At the end of each calendar year, the first institution shall send the second institution a statement of the cash benefits paid during the financial year in question, showing the amount due from the latter institution which shall make the refund to the first institution as soon as possible, and within three months at the latest.
3. In the case referred to in the first sentence of Article 60 (2) (b) of the Regulation, the institution responsible for payment of cash benefits shall notify the competent institutions concerned, for their approval, of the changes made in the previous apportionment of costs, together with the appropriate supporting evidence.
4. In the case referred to in the second sentence of Article 60 (2) (b) of the Regulation, paragraph 2 shall apply by analogy.
Implementation of Article 61 (5) of the Regulation
Article 72
Assessment of the degree of incapacity in the case of an accident at work sustained previously or an occupational disease diagnosed previously 1. In order to assess the degree of incapacity in the case referred to in Article 61 (5) of the Regulation, a worker shall supply the competent institution of the Member State to whose legislation he was subject at the time when the accident at work was sustained or the occupational disease was first diagnosed, with all information on previous accidents at work sustained or occupational diseases contracted by him when he was subject to the legislation of any other Member State, whatever the degree of incapacity caused by those previous cases.
2. In accordance with the legislation which it administers in respect of the acquisition of the right to benefit, and the determination of the amount of benefit, the competent institution shall take into account the degree of incapacity caused by those previous cases.
3. The competent institution may apply to any other institution which was previously competent in order to obtain any information it considers necessary.
When a previous incapacity for work was caused by an accident substained while the worker was subject to the legislation of a Member State which makes no distinction as to the origin of the incapacity for work, the institution competent in respect of the previous incapacity for work or the body designated by the competent authority of the Member State concerned shall, at the request of the competent institution of another Member State, supply information on the degree of the previous incapacity for work and, as far as possible, any information which would make it possible to determine whether the incapacity was the result of an accident at work within the meaning of the legislation administered by the institution of the second Member State. Where such is the case, paragraph 2 shall apply by analogy.
Implementation of Article 62 (1) of the Regulation
Article 73
Institutions to which workers in mines and similar undertakings may apply when staying or residing in a Member State other than the competent State 1. In cases covered by Article 62 (1) of the Regulation and when, in the country of stay or residence, the benefits provided by the insurance scheme for accidents at work and occupational diseases covering manual workers in the steel industry are equivalent to those provided by the special scheme for workers in mines and similar undertakings, workers in the latter category may apply, in the Member State in which they are residing or staying, to the nearest institution specified in Annex 3 of the Implementing Regulation, even if the latter is an institution of the scheme applicable to manual workers in the steel industry, which institution shall then provide such benefits.
2. Where the benefits provided by the special scheme for workers in mines and similar undertakings are more advantageous, such workers shall have the right to apply either to the institution responsible for administering that scheme, or to the nearest institution in the Member State in which they are staying or residing, which is administering the scheme for manual workers in the steel industry. In the latter case the institution concerned shall draw the attention of the worker to the fact that by applying to the institution responsible for the administration of the aforementioned special scheme, he will obtain more advantageous benefits; it should, furthermore, inform him of the name and address of that institution.
Implementation of Article 62 (2) of the Regulation
Article 74
Period during which benefits have already been provided by the institution of another Member State to be taken into account For the purposes of Article 62 (2) of the Regulation, the institution of a Member State required to provide benefits may request the institution of another Member State to supply it with information relating to the period during which the latter institution has already provided benefits for the same accident at work or occupational disease.
Submission and investigation of pension claims, excluding pensions in respect of occupational diseases covered by Article 57 of the Regulation
Article 75
1. In order to draw a pension or supplementary allowance under the legislation of a Member State, a worker or his survivors residing in the territory of another Member State shall make a claim either to the competent institution, or to the institution of the place of residence, which shall forward such claim to the competent institution. The submission of the claim shall be subject to the following rules:
(a) the claim must be accompanied by the required supporting documents and made out on the forms provided for by the legislation administered by the competent institution;
(b) the accuracy of the information given by the claimant must be established by official documents attached to the claim form, or confirmed by the competent bodies of the Member State in whose territory the claimant resides.
2. The competent institution shall notify the claimant of its decision directly or through the liaison body of the competent State; it shall send a copy of that decision to the liaison body of the Member State in whose territory the claimant resides.
Administrative Checks and Medical Examinations
Article 76
1. Administrative checks and medical examinations provided for in the event of pensions being reviewed shall be carried out at the request of the competent institution by the institution of the Member State in whose territory the person entitled to benefits happens to be, in accordance with the procedure laid down by the legislation administered by the latter institution. The competent institution shall, however, reserve the right to have the person entitled to benefits examined by a doctor of its own choice.
2. Any person drawing a pension for himself or for an orphan shall inform the institution responsible for payment of any change in his situation or in that of the orphan which is likely to modify the pension rights.
Payment of Pensions
Article 77
Pensions due from the institution of one Member State to claimants resident in the territory of another Member State shall be made in accordance with the procedure laid down in Articles 53 to 58 of the Implementing Regulation.
CHAPTER 5 DEATH GRANTS Implementation of Articles 64, 65 and 66 of the Regulation
Article 78
Submission of a claim for a grant In order to receive a death grant under the legislation of a Member State other than the State in whose territory he resides, the claimant shall submit his claim either to the competent institution or to the institution of the place of residence.
The claim must be accompanied by the supporting documents required by the legislation which the competent institution administers.
The accuracy of the information supplied by the claimant must be established by official documents attached to the claim or be confirmed by the competent bodies of the Member State in whose territory the claimant resides.
Article 79
Certified statement of insurance periods 1. In order to invoke the provisions of Article 64 of the Regulation, a claimant shall submit to the competent institution a certified statement specifying the insurance periods completed by the worker under the legislation to which he was last subject.
2. This certified statement shall be issued, at the request of the claimant by the sickness insurance institution, as the case may be, with which the worker was last insured. If the claimant does not submit the said certified statement, the competent institution shall obtain it from one or other of the aforementioned institutions.
3. Where it is necessary to take into account insurance periods previously completed under the legislation of any other Member State, paragraphs 1 and 2 shall apply by analogy, in order to satisfy the conditions of the legislation of the competent State.
CHAPTER 6 UNEMPLOYMENT BENEFITS Implementation of Article 67 of the Regulation
Article 80
Certified statement of periods of insurance or employment 1. In order to invoke the provisions of Article 67 (1), (2) or (4) of the Regulation, the claimant shall submit to the competent institution a certified statement specifying the periods of insurance or employment completed previously under the legislation to which he was last subject, together with any further information required by the legislation administered by that institution.
2. This certified statement shall be issued, at the request of the person concerned, either by the institution competent in matters of unemployment of the Member State to whose legislation he was last subject, or by another institution designated by the competent authority of the said Member State. If he does not submit the said certified statement, the competent institution shall obtain it from one or other of the aforementioned institutions.
3. Where it is necessary to take into account periods of insurance or employment previously completed under the legislation of any other Member State in order to satisfy the conditions of the legislation of the competent State, paragraphs 1 and 2 shall apply by analogy.
Implementation of Article 68 of the Regulation
Article 81
Certified statement for the calculation of benefits Where the responsibility for the calculation of benefits rests upon an institution covered by Article 68 (1) of the Regulation, and where a person has followed his last occupation for less than four weeks in the territory of the Member State in which that institution is situated, he shall submit to the said institution a certified statement indicating the nature of the last occupation followed for at least four weeks in the territory of another Member State, and the branch of the economy in which that occupation was followed. If the person concerned does not submit this certified statement, the said institution shall obtain it either from the institution competent in respect of unemployment of the latter Member State with which he was last insured, or from another institution designated by the competent authority of that Member State.
Article 82
Certified statement relating to the members of the family to be taken into consideration for the calculation of benefits 1. In order to invoke the provisions of Article 68 (2) of the Regulation, a person shall submit to the competent institution a certified statement relating to the members of his family who are resident in the territory of a Member State other than the one in which the said institution is situated.
2. This certified statement shall be issued by the institution designated by the competent authority of the Member State in whose territory those members of the family reside. It must certify that the members of the family are not taken into consideration for the calculation of unemployment benefits due to another person under the legislation of the said Member State. The certified statement shall be valid for the twelve months following the date of its issue. It may be renewed; in such case, it shall be valid as from the date of its renewal. The person concerned shall notify the competent institution forthwith of any occurrence necessitating a modification of the said certified statement; such modification shall take effect as from the day of the occurrence.
Implementation of Article 69 of the Regulation
Article 83
Conditions and limits for the retention of the right to benefits when an unemployed person goes to another Member State 1. In order to retain the right to benefits, an unemployed person covered by Article 69 (1) of the Regulation shall submit to the institution of the place to which he has gone a certified statement in which the competent institution shall certify that he is still entitled to benefits under the conditions laid down in paragraph 1 (b) of the said Article. The competent institution shall specify in particular in this certified statement:
(a) the amount of benefit to be paid to the unemployed person under the legislation of the competent State;
(b) the date on which the unemployed person ceased to be available to the employment services of the competent State;
(c) the time limit under Article 69 (1) (b) of the Regulation for registration as a person seeking work in the Member State to which the unemployed person has gone;
(d) the maximum period, in accordance with Article (69 (1) (c) of the Regulation, during which the right to benefit may be retained;
(e) facts which might alter entitlement to benefit.
2. An unemployed person who intends to go to another Member State in order to seek employment there shall, before his departure, apply for the certified statement referred to in paragraph 1. If the unemployed person does not submit the said certified statement, the institution of the place to which he has gone shall obtain it from the competent institution. The employment services of the competent State must ensure that the unemployed person has been informed of his obligations under Article 69 of the Regulation and under the present Article.
3. The institution of the place to which the unemployed person has gone shall notify the competent institution of the date on which the unemployed person registered and the date on which payment of benefits was commenced and shall pay out the benefits of the competent State in accordance with the procedure provided for by the legislation of the Member State to which the unemployed person has gone.
The institution of the place to which the unemployed person has gone shall carry out a check or arrange for one to be carried out as if it were dealing with an unemployed person entitled to benefits under the legislation which it administers. It shall inform the competent institution of any occurrence coming within paragraph 1 (e) above as soon as the same comes to its knowledge and, in cases where the benefit has to be suspended or withdrawn, it shall immediately discontinue payment of the benefit. The competent institution shall forthwith inform it to what extent, and from what date, the unemployed person's entitlement to benefit is affected by that fact. Payment of benefits may only be resumed, where appropriate, after receipt of such information. Where the benefit has to be reduced, the institution of the place to which the unemployed person has gone shall continue to pay him a reduced amount of benefit, subject to adjustment, after receipt of the reply from the competent institution.
4. Two or more Member States or the competent authorities of those Member States may, having received the Opinion of the Administrative Commission, agree to introduce other implementing provisions.
Implementation of Article 71 of the Regulation
Article 84
Unemployed persons who, during their last employment, were residing in a Member State other than the competent State 1. In the cases referred to in Article 71 (1) (a) (ii) and in the first sentence of Article 71 (1) (b) (ii) of the Regulation, the institution of the place of residence shall be considered to be the competent institution, for the purposes of applying Article 80 of the Implementing Regulation.
2. In order to claim benefits under Article 71 (1) (b) (ii) of the Regulation, an unemployed person shall submit to the institution of his place of residence, in addition to the certified statement provided for in Article 80 of the Implementing Regulation, a certified statement from the institution of the Member State to whose legislation he was last subject, indicating that he has no right to benefit under Article 69 of the Regulation.
3. For the purposes of Article 71 (2) of the Regulation, the institution of the place of residence shall ask the competent institution for any information relating to the unemployed person's entitlements from the latter institution.
CHAPTER 7 FAMILY BENEFITS AND FAMILY ALLOWANCES Implementation of Article 72 of the Regulation
Article 85
Certified statement of periods of employment 1. In order to invoke the provisions of Article 72 of the Regulation a person shall submit to the competent institution a certified statement specifying the periods of employment completed under the legislation to which he was last subject.
2. That certified statement shall be issued, at the request of the person concerned, either by the institution competent in respect of family benefits of the Member State with which he was last insured, or by another institution designated by the competent authority of the said Member State. If the claimant does not submit the said certified statement, the competent institution shall obtain it from one or other of the abovementioned institutions unless the sickness insurance institution is able to forward him a copy of the certified statement provided for in Article 16 (1) of the Implementing Regulation.
3. Where it is necessary to take into account periods of employment completed previously under the legislation of any other Member State in order to satisfy the conditions of the legislation of the competent State, paragraphs 1 and 2 shall apply by analogy.
Implementation of Article 73 (1) and Article 75 (1) (a) and (b) of the Regulation
Article 86
Workers subject to the legislation of a Member State other than France 1. In order to draw family benefits under Article 73 (1) of the Regulation, a worker shall submit a claim to the competent institution, where necessary through his employer.
2. In support of his claim, the worker shall submit, a declaration of family status, issued by the authorities competent in civil status matters in the country of residence of the members of the family. Such declaration must be renewed once a year.
3. Where the legislation of the competent State provides that the family benefits may or must be paid to a person other than the worker, the worker shall also submit in support of his claim, information identifying the individual to whom the family benefits are to be paid in the country of residence (name, forename, full address).
4. The competent authorities of two or more Member States may agree on special procedures for the payment of family benefits, in particular with a view to facilitating the implementation of Article 75 (1) (a) and (b) of the Regulation. Such agreements shall be communicated to the Administrative Commission.
5. A worker shall inform the competent institution, where necessary through his employer:
- of any change in the situation of the members of his family which might alter entitlement to family benefits;
- of any change in the number of members of his family for whom family benefits are due;
- of any transfer of residence or stay of such members of the family;
- of any pursuit of a professional or trade activity by virtue of which family benefits are also due under the legislation of the Member State in whose territory the members of the family are resident.
Implementation of Article 73 (2) of the Regulation
Article 87
Workers subject to French legislation 1. In order to draw family allowances under Article 73 (2) of the Regulation, a worker shall submit a claim to the competent institution which shall issue him with a certified statement testifying that he satisfies the conditions of employment which govern the acquisition of the right to family allowances under French legislation. At the same time, the worker shall sign a declaration certifying that he has no right to family allowances under the legislation of the country of residence of the members of the family, by virtue of a professional or trade activity.
Where French legislation provides for entitlement to family allowances to last for a period corresponding to the duration of the periods of employment, the certified statement shall specify the duration of employment completed in the course of the period concerned.
The members of the family shall be registered with the institution of their place of residence on presentation of that certified statement and of the supporting documents required by the legislation administered by that institution for the granting of family allowances.
If the members of the family do not submit the said certified statement, the institution of the place of residence shall obtain it from the competent institution.
2. The certified statement provided for in paragraph 1 shall remain valid for a period of three months following the date of its issue, and must be renewed automatically every three months by the competent institution.
3. In the case of a seasonal worker, the certified statement provided for in paragraph 1 shall be valid for the expected duration of seasonal work unless, in the meantime, the competent institution notifies to the institution of the place of residence of its cancellation.
4. If the legislation of a Member State in whose territory the members of the family reside provides for the monthly or quarterly granting of family allowances, while French legislation provides for entitlement to family allowances to last for a period corresponding to the duration of employment, the family allowances shall be granted in the ratio which that duration bears to the duration laid down by the legislation of the country of residence of the members of the family.
5. If the legislation of the Member State in whose territory the members of the family reside provides for the granting of allowances for a number of days corresponding to the number of days of employment, while French legislation provides for entitlement to family allowances to last for one month, then the family allowances shall be granted for one month.
6. In the cases referred to in paragraphs 4 and 5, when the periods of employment completed under French legislation are expressed in units different from those which are used for the calculation of family allowances under the legislation of the Member State in whose territory the members of the family reside, the conversion shall be carried out in accordance with the provisions of Article 15 (3) of the Implementing Regulation.
7. The competent institution shall forthwith inform the institution of the place of residence of the members of the family of the date on which the worker ceases to be entitled to family allowances or on which he transfers his residence from the territory of one Member State to that of another Member State.
The institution of the place of residence of the members of the family may, at any time, ask the competent institution to supply it with any information relating to the worker's entitlement to family allowances.
If the competent institution considers it necessary, the institution of the place of residence shall, at its request, verify the declaration referred to in the first subparagraph of paragraph 1.
8. The members of the family shall be required to inform the institution of their place of residence of any change in their situation which might alter their entitlement to family allowances, in particular any change of residence.
Implementation of Article 74 (1) of the Regulation
Article 88
Unemployed persons subject to the legislation of a Member State other than France Article 86 of the Implementing Regulation shall apply by analogy to unemployed persons covered by Article 74 (1) of the Regulation.
Implementation of Article 74 (2) of the Regulation
Article 89
Unemployed persons subject to French legislation 1. In order to draw family allowances in the territory of the Member State where they reside, the members of the family covered by Article 74 (2) of the Regulation shall submit to the institution of their place of residence a certified statement testifying that the unemployed person is drawing unemployment benefits under French legislation.
This certified statement shall be issued by the French institution competent in respect of unemployment matters or by the institution designated by the competent French authority, at the request of the unemployed person who shall sign a declaration certifying that he has no right to family allowances under the legislation of the country of residence of the members of the family by virtue of a professional or trade activity.
If the members of the family do not submit the said certified statement the institution of the place of residence shall obtain it from the competent institution.
2. Article 87 (2) to (8) of the Implementing Regulation shall apply by analogy.
CHAPTER 8 BENEFITS FOR DEPENDENT CHILDREN OF PENSIONERS AND FOR ORPHANS Implementation of Articles 77, 78 and 79 of the Regulation
Article 90
1. In order to receive benefits under Article 77 or 78 of the Regulation, a claimant shall submit a claim to the institution of his place of residence, in accordance with the procedures laid down by the legislation administered by that institution.
2. If, however, the claimant does not reside in the territory of the Member State in which the competent institution is situated, he may submit his claim either to the competent institution or to the institution of his place of residence which shall then forward the claim to the competent institution, indicating the date on which it was submitted. That date shall be considered as the date of submission of the claim to the competent institution.
3. If the competent institution referred to in paragraph 2 finds that there is no entitlement under the legislation which it administers, it shall forward that claim forthwith, together with all necessary documents and information, to the institution of the Member State under whose legislation the worker completed his longest insurance period.
Where necessary the matter may have to be referred back, under the same conditions, to the institution of the Member State under whose legislation the worker completed his shortest insurance period.
4. The Administrative Commission shall, where necessary, lay down any supplementary procedures required for tihe submission of claims for benefits.
Article 91
1. Payment of benefits due under Article 77 or Article 78 of the Regulation shall be made in accordance with Articles 53 to 58 of the Implementing Regulation.
2. The competent authorities of the Member States shall, where necessary, designate the institution competent for paying benefits due under Article 77 or Article 78 of the Regulation.
Article 92
Any person to whom benefits are paid under Article 77 or Article 78 of the Regulation for a pensioner's children or for orphans, shall inform the institution responsible for the payment of such benefits:
- of any change in the situation of the children or orphans which might alter entitlement to benefits;
- of any modification in the number of children or orphans in respect of whom benefits are due;
- of any transfer of residence of the children or orphans;
- of the pursuit of any professional or trade activity giving entitlement to family benefits or family allowances for such children or orphans.
TITLE V FINANCIAL PROVISIONS
Article 93
Refund of sickness and maternity insurance benefits other than those provided for in Articles 94 and 95 of the Implementing Regulation 1. The actual amount of benefits in kind provided under Article 19 (1) and (2) of the Regulation to workers and to members of their families residing in the territory of the same Member State, and benefits in kind provided under Articles 22, 25 (1), (3) and (4), 26, 29 (1), or 31 of the Regulation, shall be refunded by the competent institution to the institution which provided the said benefits as shown in the accounts of that institution.
2. In the cases referred to in Articles 29 (1) and 31 of the Regulation, and for the purposes of paragraph 1, the institution of the pensioner's place of residence shall be considered as the competent institution.
3. If the actual amount of the benefits referred to in paragraph 1 is not shown in the accounts of the institution which has provided them, and no agreement has been concluded under paragraph 6, the amount to be refunded shall be determined on the basis of a lump-sum payment calculated from all the appropriate references and obtained from the data available. The Administrative Commission shall assess the bases to be used for the calculation of the lump-sum payments and shall decide the amount thereof.
4. For the purposes of the refund, rates higher than those applicable to the benefits in kind provided to workers who are subject to the legislation administered by the institution which provided the benefits referred to in paragraph 1 may not be taken into account.
5. Paragraphs 1 and 2 shall apply by analogy to the refund of cash benefits paid in accordance with the second sentence of Article 18 (8) of the Implementing Regulation.
6. Two or more Member States or the competent authorities of those Member States may, having received the Opinion of the Administrative Commission, agree to other methods of assessing the amounts to be refunded, in particular on the basis of lump-sums.
Article 94
Refund of benefits in kind provided under sickness and maternity insurance to the members of the family of a worker not residing in the same Member State as the latter 1. The amount of benefits in kind provided under Article 19 (2) of the Regulation to the members of the family of a worker who are not residing in the territory of the same Member State as such worker shall be refunded by the competent institutions to the institutions which provided the said benefits on the basis of a lump-sum in respect of each calendar year which is as close as possible to the actual expenditure incurred.
2. The lump-sum payment shall be determined by multiplying the average annual cost per family by the average number of families to be taken into account each year, and by reducing the resultant amount by twenty per cent.
3. The factors necessary for the calculation of the said lump-sum shall be determined as follows:
(a) the average annual cost per family shall be obtained, for each Member State, by dividing the annual expenditure on all the benefits in kind provided by the institutions of that Member State to all the members of the families of workers who are subject to the legislation of the said Member State, under the social security schemes to be taken into consideration, by the average annual number of such workers with family members; the social security schemes to be taken into consideration for that purpose are specified in Annex 9;
(b) in dealings between the institutions of two Member States, the average annual number of families to be taken into account shall be equal to the average annual number of workers who are subject to the legislation of one of those Member States and the members of whose families are entitled to benefits in kind to be provided by an institution of the other Member State.
4. The number of families to be taken into account in accordance with paragraph 3 (b) shall be determined by means of a list kept for that purpose by the institution of the place of residence, based upon documentary evidence supplied by the competent institution of the rights of the persons concerned. In the event of any dispute, the observations of the institutions involved shall be submitted to the Audit Board provided for in Article 101 (3) of the Implementing Regulation.
5. The Administrative Commission shall lay down the methods and procedures for determining the calculation factors referred to in paragraphs 3 and 4.
6. Two or more Member States or the competent authorities of those States may, after receiving the Opinion of the Administrative Commission, agree upon other methods of assessing the amounts to be refunded.
Article 95
Refund of benefits in kind provided under sickness and maternity insurance to pensioners and to members of their families who are not entitled to benefits under the legislation of the Member State where they reside 1. The amount of the benefits in kind provided under Article 28 (1) of the Regulation shall be refunded by the competent institutions to the institutions which provided the said benefits, on the basis of a lump-sum which is as close as possible to the actual expenditure incurred.
2. The lump-sum shall be determined by multiplying the average annual cost per pensioner by the average annual number of pensioners to be taken into account, and by reducing the resultant amount by twenty per cent.
3. The factors necessary for the calculation of the said lump-sum shall be determined according to the following rules:
(a) the average annual cost per pensioner shall be obtained, for each Member State, by dividing the annual costs of the total benefits in kind provided by the institutions of that Member State to all pensioners whose pensions are payable under the legislation of that Member State, under the social security schemes to be taken into consideration and to members of their families, by the average annual number of pensioners; the social security schemes to be taken into consideration for that purpose are specified in Annex 9;
(b) in dealings between the institutions of two Member States, the average annual number of pensioners to be taken into account shall be equal to the average annual number of pensioners referred to in Article 28 (2) of the Regulation who, whilst residing in the territory of one of the Member States, are entitled to benefits in kind chargeable to the institution of the other Member State.
4. The number of pensioners to be taken into account in accordance with paragraph 3 (b) shall be determined by means of a list kept for that purpose by the institution of the place of residence, based upon documentary evidence supplied by the competent institution of the rights of the persons concerned. In the event of any dispute, the observations of the institutions involved shall be submitted to the Audit Board provided for in Article 101 (3) of the Implementing Regulation.
5. The Administrative Commission shall lay down the methods and procedures for determining the calculation factors referred to in paragraphs 3 and 4.
6. Two or more Member States or the competent authorities of those Member States may, after receiving the Opinion of the Administrative Commission, agree to introduce other methods of assessing the amounts to be refunded.
Implementation of Article 63 (2) of the Regulation
Article 96
Refund of benefits in kind provided under insurance schemes for accidents at work and occupational diseases by the institution of one Member State on behalf of the institution of another Member State For the purposes of Article 63 (2) of the Regulation, Article 93 of the Implementing Regulation shall apply by analogy.
Implementation of Article 70 (2) of the Regulation
Article 97
Refund of unemployment benefits paid to unemployed persons going to another State to seek employment there 1. The amount of benefits paid under Article 69 of the Regulation shall be refunded by the competent institution to the institution which has paid the said benefits, as shown in the accounts of the latter institution.
2. Two or more Member States or the competent authorities of those States may:
- having received the Opinion of the Administrative Commission, agree to introduce other methods of determining the amounts to be refunded, in particular lump-sums, or other methods of payment, or
- waive all refunds between institutions.
Refund of family allowances paid under Articles 73 (2) and 74 (2) of the Regulation
Article 98
Members of the families of workers subject to French legislation or of unemployed persons receiving unemployment benefits under French legislation 1. The actual amount of the family allowances paid under Articles 73 (2) and 74 (2) of the Regulation shall be refunded by the competent French institution to the institution which has paid those family allowances, is shown in the accounts of the latter institution.
2. France and each of the other Member States or the competent authorities of France and those of each of the other Member States may, by mutual agreement, provide for the lump-sum refund of those family allowances. In the case of a lump-sum refund, such lump-sum shall be determined by multiplying the average annual cost per family by the average annual number of families to be taken into account.
3. The factors necessary for the calculation of the said lump-sum shall be determined according to the following rules:
(a) the average annual cost per family shall be obtained by dividing the total annual cost of the family allowances paid by the institutions of the Member State in whose territory the members of the families are residing, in respect of all the members of the families of workers or of unemployed persons residing in the territory of that Member State by the average annual number of families entitled to benefits;
(b) the average annual number of families to be taken into account shall be equal to the average annual number of workers subject to the legislation of the competent State and, where appropriate, of unemployed persons receiving unemployment benefits at the expense of an institution of that competent State, whose members of the family are entitled to receive family allowances paid by an institution of another Member State in whose territory they are residing.
4. The Administrative Commission shall, on the basis of the report from the Audit Board provided for in Article 101 (3) of the Implementing Regulation, lay down the methods and procedures for determining the calculation factors referred to in paragraph 3.
5. France and each of the other Member States or the competent authorities of France and each of the other Member States may, having received the Opinion of the Administrative Commission, agree to introduce other methods of determining the lump-sum.
Common provisions on refunds
Article 99
Administration Costs Two or more Member States or the competent authorities of those Member States may, in accordance with the provisions of the third sentence of Article 94 (2) of the Regulation, agree to increase the amount of the benefits referred to in Articles 93 to 98 of the Implementing Regulation by a specific percentage in order to take into account administration costs. That percentage may vary in accordance with the benefits concerned.
Article 100
Late Claims 1. In the settlement of accounts between institutions of the Member States, claims for refunds relating to benefits provided during a calendar year three years or more previous to the date of submission of such claims, whether they are submitted to a liaison body or to the institution responsible for payment of the competent State, may be disregarded by the institution responsible for payment.
2. For claims relating to lump-sum refunds, the three year period shall run from the date of publication in the Official Journal of the European Communities, of the average annual cost of benefits in kind determined in accordance with Articles 94 and 95 of the Implementing Regulation.
Article 101
Statement of Claims 1. The Administrative Commission shall implement Articles 36, 63, 70 and 75 (2) of the Regulation by drawing up a statement of claims for each calendar year.
2. The Administrative Commission may arrange for any checks appropriate to the investigation of the statistical and accounting data needed in the drawing up of the statement of claims provided for in paragraph 1, in particular to ensure their compliance with the rules laid down under this Title 2.
3. The Administrative Commission shall take the decisions referred to in this Article on the report of the Audit Board which shall furnish it with an opinion, stating the reasons on which such opinion is based. The Administrative Commission shall determine the methods of operation and the composition of the Audit Board.
Article 102
Functions of the Audit Board - Refund procedure 1. The Audit Board shall:
(a) collect the necessary data and arrange for the calculations required for the implementation of the present Title;
(b) give the Administrative Commission periodic accounts of the results of the implementation of the Regulations, in particular as regards the financial aspect;
(c) make any useful suggestions it may have to the Administrative Commission in connection with subparagraphs (a) and (b);
(d) submit to the Administrative Commission proposals on the observations forwarded to it in accordance with Article 94 (4) and 95 (4) of the Implementing Regulation;
(e) lay before the Administrative Commission proposals relating to the implementation of Article 101 of the Implementing Regulation;
(f) carry out all work, studies or assignments on matters referred to it by the Administrative Commission.
2. The refunds provided for in Articles 36, 63, 70 and 75 (2) of the Regulation shall be made for all the competent institutions of a Member State to the creditor institutions of another Member State through bodies designated by the competent authorities of the Member States. The bodies through which refunds are made shall advise the Administrative Commission of the amounts refunded within the time limits and according to the procedures laid down by that Commission.
3. When the refunds are determined on the basis of the actual amount of benefits provided, as shown in the accounts of the institutions, they shall be made, for each calendar half-year, during the following half-year.
4. When the refunds are determined on a lump-sum basis, they shall be made for each calendar year; in such case, the competent institutions shall pay advances to the creditor institutions on the first day of each calendar half-year, in accordance with the procedures laid down by the Administrative Commission.
5. The competent authorities of two or more Member States may agree upon other time limits for refunds or other procedures for the payment of advances.
Article 103
Compilation of statistical and accounting data The competent authorities of the Member States shall take all the necessary measures for the implementation of the present Title, in particular those necessitating the compilation of statistical or accounting data.
Article 104
Entry in Annex 5 of agreements on refunds between Member States or the competent authorities of the Member States 1. Provisions which are similar to those of Articles 36 (3), 63 (3), and 70 (3) of the Regulation, and of Articles 93 (6), 94 (6), and 95 (6) of the Implementing Regulation and which are in force on the day preceding the entry into force of the Regulation, shall continue to apply provided they are included in Annex 5 of the Implementing Regulation.
2. Provisions which are similar to those referred to in paragraph 1 and which, for dealings between two or more Member States, will apply after the entry into force of the Regulation, shall be entered ill Annex 5 of the Implementing Regulation. The same shall apply to provisions made under Articles 97 (2) and 98 (2) of the Implementing Regulation.
Costs of administrative checks and medical examinations
Article 105
1. The costs entailed in administrative checks and in medical examinations, observations, doctors' visits and checks of all kinds necessary for the award, provision or review of benefits, shall be refunded by the institution on whose behalf they were made to the institution which has been responsible therefore, on the basis of the charges applied by the latter institution.
2. However, two or more Member States or the competent authorities of such Member States may agree upon other methods of refund, in particular on a lump-sum basis, or they may waive all refunds between institutions.
Such agreements shall be entered in Annex 5 of the lmplementing Regulation. Agreements in force on the day preceding the entry into force of the Regulation shall continue to apply provided that they are included in the said Annex.
Common provisions for the payment of cash benefits
Article 106
The competent authorities of every Member State shall notify the Administrative Commission, within the time-limits allowed and in accordance with the procedures laid down by that Commission, of the amount of cash benefits paid by their institutions to recipients residing or staying in the territory of any other Member State.
Article 107
Currency conversion 1. For the purposes of the provisions listed below, the conversion of amounts shown in different national currencies shall be effected at the official par values declared by the national monetary authorities and recognized by the International Monetary Fund:
(a) provisions of the Regulation: Article 12 (2), (3), and (4), the last sentence of Article 19 (1) (b), the last sentence of Article 22 (1) (ii), the penultimate sentence of Article 25 (1) (b), Article 41 (1) (c) and (d), Article 46 (3) and (4),
Article 50, the last sentence of Article 52 (b), the last sentence of Article 55 (1) (ii), Article 57 (3) (c), Article 60 (1) (c), Article 60 (2) (b), Article 70 (1) and the penultimate sentence of Article 71 (1) (b) (ii);
(b) provisions of the Implementing Regulation: Articles 34, 101 (1), 102 (1) (b), 119 (2).
2. In cases not covered by paragraph 1, the conversion shall be made at the rate of exchange actually applicable at the time of payment.
TITLE VI MISCELLANEOUS PROVISIONS
Article 108
Proof of status of seasonal worker In order to prove that he is a seasonal worker, the worker covered by Article 1 (c) of the Regulation shall produce his contract of employment stamped by the employment services of the Member State in whose territory he has gone to work or another document stamped by those services certifying that his job is of a seasonal nature.
Article 109
Arrangement for payment of contributions The employer who has no place of business in the Member State in whose territory the worker is employed may arrange for that worker to act on his behalf as regards the payment of contributions.
The employer shall notify the competent institution or, where necessary, the institution designated by the competent authority of the said Member State of any such arrangement.
Article 110
Mutual administrative aid relating to the recovery of benefits which were not due If the institution of a Member State which provided benefits proposes to take action against a person who has received benefits which were not due to him, the institution of the place of residence of such person, or the institution designated by the competent authority of the Member State in whose territory that person resides, shall lend its good offices to the first institution.
Article 111
Recovery by social security institutions of payments not due, and claims by assistance bodies 1. If, when awarding or reviewing benefits in respect of invalidity, old age or death (pensions) pursuant to Chapter 3 of Title III of the Regulation, the institution of a Member State has paid to a recipient of benefits a sum in excess of that to which he is entitled, that institution may request the institution of any other Member State responsible for the payment of corresponding benefits to that person to deduct the amount overpaid out of ally arrears payable by the latter to the said recipient. The latter institution shall transfer the amount deducted to the creditor institution. Where the amount overpaid cannot be deducted from the arrears, the provisions of paragraph 2 shall apply.
2. When the institution of a Member State has paid to a recipient of benefits a sum in excess of that to which he is entitled that institution may, within the conditions and limits laid down by the legislation which it administers, request the institution of any other Member State responsible for the payment of benefits to that recipient to deduct the amount overpaid from the amounts which it pays to the said recipient. The latter institution shall make the deduction under the conditions and within the limits provided for setting-off by the legislation which it administers, as if the sums had been overpaid by itself, and shall transfer the amount deducted to the creditor institution.
3. When a person to whom the Regulation applies has received assistance in the territory of a Member State during a period in which he was entitled to benefits under the legislation of another Member State, the body which gave the assistance may, if it is legally entitled to reclaim the benefits due to the said person, request the institution of any other Member State responsible for the payment of benefits in favour of that person to deduct the amount of the assistance paid from the amounts which the latter pays to the said person.
When a member of the family of a person to whom the Regulation applies has received assistance in the territory of a Member State for a period during which the said person was entitled to benefits under the legislation of another Member State, in respect of the member of the family concerned, the body which gave the assistance may, if it is legally entitled to recover the benefits due to the said person, in respect of the Member of the family concerned request the institution of any other Member State responsible for the payment of such benefits in favour of that person to deduct the amounts paid out by way of assistance from the amounts which the latter institution pays on that account to the said person.
The institution responsible for payment shall make the deduction under the conditions and within the limits provided for such setting off by the legislation which it administers, and shall transfer the amount deducted to the creditor body.
Article 112
When an institution has made payments which are not due, either directly or through another institution, and when their recovery has become impossible, the amounts in question shall remain finally chargeable to the first institution, save where the payment which was not due is the result of fraud.
Article 113
Recovery of benefits in kind provided but not due to workers in international transport 1. If the right to benefits in kind is not recognized by the competent institution, the benefits in kind which have been provided to a worker in international transport by the institution of the place of stay by virtue of the terms of the presumption referred to in Article 20 (2) or Article 62 (2) of the Implementing Regulation, shall be refunded by the competent institution.
2. Expenses incurred by the institution of the place of stay in respect of any worker in international transport who has not previously applied to the institution of the place of stay and is not entitled to benefits in kind but has nevertheless received benefits in kind upon presentation of the certified statement referred to in Article 20 (2) or 62 (2) of the Implementing Regulation, shall be refunded by the institution shown as competent in the said certified statement or by any other institution designated for that purpose by the competent authority of the Member State concerned.
3. The competent institution or, in the case referred to in paragraph 2, the institution shown as competent or the institution designated for that purpose shall debit the recipient of benefits with the value of the benefits in kind which were provided but were not due to him. The said institutions shall notify these debits to the Audit Board referred to in Article 101 (3) of the Implementing Regulation which shall draw up a statement thereof.
Article 114
Provisional payments of benefits in cases of dispute over the legislation to be applied or the institution which should provide benefits Where, in the case of a dispute between the institutions or competent authorities of two or more Member States as to which legislation should apply to a worker under Title II of the Regulation, or which institution should provide the benefits, the person concerned could be claiming benefit if there were no dispute, such person shall provisionally receive the benefits provided for by the legislation administered by the institution of the place of residence or, if he does not reside in the territory of one of the Member States concerned, benefits provided for by the legislation administered by the institution to which his claim was submitted in the first instance.
Article 115
Procedures for medical examinations carried out in a Member State other than the competent State The institution of the place of stay or residence which is required under Article 87 of the Regulation to carry out a medical examination, shall act in accordance with the procedures laid down by the legislation which it administers.
In the absence of such procedures, it shall apply to the competent institution for information on the procedures to be applied.
Article 116
Agreements relating to the recovery of contributions 1. Agreements concluded pursuant to Article 92 (2) of the Regulation shall be entered in Annex 5 of the Implementing Regulation.
2. Agreements concluded for the implementation of Article 51 of Regulation No 3 shall continue to apply provided they are included in Annex 5 of the Implementing Regulation.
Article 117
Data processing 1. One or more Member States or their competent authorities may, after receiving the Opinion of the Administrative Commission, adapt for data-processing the models of certificates, certified statements, declarations, claims and other documents together with the operations and methods of transmission of the data provided for the implementation of the Regulation and of the Implementing Regulation.
2. The Administrative Commission shall, when the development of data-processing in the Member States makes it possible, undertake the studies required to standardize and bring into general use the methods of adjustment resulting from the provisions of paragraph 1.
TITLE VII TRANSITIONAL AND FINAL PROVISIONS
Article 118
Transitional provisions relating to pensions 1. Claims for pensions which have not yet been awarded before the entry into force of the Regulation shall give rise to a double award:
- for the period preceding that date, in accordance with the provisions of Regulation No 3;
- for the period commencing from that date, in accordance with the provisions of the Regulation.
2. A claim for invalidity, old age or survivors' benefits submitted to in institution as from the date of entry into force of the Regulation shall automatically necessitate the reassessment of the benefits which have been awarded for the same contingency prior to that date by the institution or institutions of one or more of the other Member States, in accordance with the provisions of the Regulation.
Article 119
Transitional provisions relating to family benefits 1. The rights referred to in Article 94 (9) of the Regulation shall be those enjoyed by workers in respect of members of their families giving entitlement to family benefits, at the rate and within the limits applicable on the day preceding that of the entry into force of the Regulation, pursuant either to Article 41 or to Regulation No 3 Annex D, to Article 20 or to Annex 1 of Council Regulation 36/63/EEC of 2 April 1963, on social security for frontier workers(4).
2. Provided that the amount of the family benefits referred to in paragraph 1 is higher than the amount of the family allowances which would be due under Article 73 (2) of the Regulation, it shall be the responsibility of the competent French institution to ensure payment thereof to the worker, or directly to the members of his family at their place of residence, or in respect of the children giving entitlement to such benefits.
3. Where the family benefits have to be paid under Article 73 (2) of the Regulation, the institution of the place of residence of the members of the family shall ensure payment of family allowances in accordance with the provisions of the legislation which it administers, provided that they are refunded by the competent French institution.
4. In the bilateral relations between the Member States concerned, the procedure for implementing the present Article shall be determined by those Member States or the competent authorities of those States.
Article 120
Supplementary implementing agreements 1. Two or more Member States or the competent authorities of those Member States may, where necessary, conclude agreements designed to supplement the administrative procedure for implementing the Regulation. Such agreements are listed in Annex 5 of the Implementing Regulation.
2. Agreements similar to those referred to in paragraph 1, which are in force on the day preceding the entry into force of the Implementing Regulation, shall continue to apply provided they are included in Annex 5 of the Implementing Regulation.
Article 121
Nature and amendment of the Annexes 1. The Annexes of the Implementing Regulation shall form an integral part of the latter.
2. These Annexes may be amended by a Council Regulation adopted on a proposal from the Commission, at the request of the Member State or Member States concerned or their competent authorities, having received the Opinion of the Administrative Commission.
3. Annex V of the Regulation, part 'B Germany', shall be supplemented by the following text:
'7. For the purposes of the Regulation, the lump-sum contributions towards confinement expenses, granted under German legislation to the members of the families of workers, unemployed persons, pensioners, and pension claimants, shall be considered as a benefit in kind.'
Article 122
Entry into force of the Implementing Regulation The Implementing Regulation shall enter into force on the first day of the seventh month following that of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 March 1972.
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COMMISSION DIRECTIVE 97/14/EC of 21 March 1997 amending Annex III to Council Directive 77/93/EEC on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to 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 97/3/EC (2), and in particular Article 13, second subparagraph, fourth indent thereof,
Whereas some provisions for protective measures against tubers of Solanum tuberosum L., should be modified because it is no longer appropriate to maintain the current prohibitions set out in Directive 77/93/EEC in respect of tubers of Solanum tuberosum L., other than those intended for planting, from Algeria;
Whereas therefore the relevant Annex to Directive 77/93/EEC should be amended accordingly;
Whereas the measures provided for in this Directive are in accordance with the opinion of the Standing Committee on Plant Health,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Directive 77/93/EEC is hereby amended as indicated in the Annex to this Directive.
Article 2
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive with effect from 1 May 1997. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The procedure for such a reference shall be adopted by the Member States.
2. The Member States shall immediately communicate to the Commission the essential provisions of domestic law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.
Article 3
This Directive shall enter into force on the day following its publication in the Official Journal of the European Communities.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 21 March 1997.
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Commission Regulation (EC) No 1346/2003
of 29 July 2003
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1947/2002(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 30 July 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 July 2003.
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COMMISSION REGULATION (EC) No 1322/97 of 8 July 1997 establishing unit values for the determination of the customs value of certain perishable goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1), as last amended by Regulation (EC) No 82/97 (2),
Having regard to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (3), as last amended by Regulation (EC) No 89/97 (4), and in particular Article 173 (1) thereof,
Whereas Articles 173 to 177 of Regulation (EEC) No 2454/93 provide that the Commission shall periodically establish unit values for the products referred to in the classification in Annex 26 to that Regulation;
Whereas the result of applying the rules and criteria laid down in the abovementioned Articles to the elements communicated to the Commission in accordance with Article 173 (2) of Regulation (EEC) No 2454/93 is that unit values set out in the Annex to this Regulation should be established in regard to the products in question,
HAS ADOPTED THIS REGULATION:
Article 1
The unit values provided for in Article 173 (1) of Regulation (EEC) No 2454/93 are hereby established as set out in the table in the Annex hereto.
Article 2
This Regulation shall enter into force on 11 July 1997.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 July 1997.
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Commission Regulation (EC) No 731/2001
of 11 April 2001
amending Regulation (EC) No 1608/2000 laying down transitional measures pending the definitive measures implementing Council Regulation (EC) No 1493/1999 on the common organisation of the market in wine
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine(1), as amended by Regulation (EC) No 2826/2000(2), and in particular Article 80 thereof,
Whereas:
(1) Commission Regulation (EC) No 1608/2000(3), as last amended by Regulation (EC) No 491/2001(4), extends the applicability of certain Council provisions repealed by Article 81 of Regulation (EC) No 1493/1999 until 31 March 2001, pending the finalisation and adoption of measures implementing that Regulation. The finalisation and adoption of those implementing measures will not be completed by 31 March 2001. Certain Council provisions repealed by Article 81 of Regulation (EC) No 1493/1999 should accordingly be allowed to stand for a short additional period.
(2) The extra transitional period does not affect the implementation of the bulk of the reform of the common organisation of the market in wine on the date set by the Council since the main points concerning the areas covered by those Regulations have been settled in Regulation (EC) No 1493/1999 or in the implementing regulations already adopted.
(3) Less progress has been made in adopting implementing measures in certain areas than in others, for example regarding the description, designation, presentation and protection of certain wine products, because of the complexity and sensitivity of the issues the Council has to deal with and the direct impact of any measures adopted on operators in the Community and in non-member countries. Provision should therefore be made for an extra transitional period in order to allow in-depth discussions to be held.
(4) 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 (EC) No 1608/2000 is amended as follows:
1. In Article 1, the date "31 March 2001" is replaced by "31 May 2001".
2. In Article 3, the date "31 March 2001" is replaced by "31 May 2001".
3. In Part B of the Annex, the date "31 March 2001" is replaced by "31 May 2001".
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply from 1 April 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 April 2001.
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COMMISSION REGULATION (EC) No 409/2008
of 8 May 2008
fixing the export refunds on white and raw sugar exported without further processing
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the market in the sugar sector (1), and in particular the second subparagraph of Article 33(2) thereof,
Whereas:
(1)
Article 32 of Regulation (EC) No 318/2006 provides that the difference between prices on the world market for the products listed in Article 1(1)(b) of that Regulation and prices for those products on the Community market may be covered by an export refund.
(2)
Given the present situation on the sugar market, export refunds should therefore be fixed in accordance with the rules and certain criteria provided for in Articles 32 and 33 of Regulation (EC) No 318/2006.
(3)
The first subparagraph of Article 33(2) of Regulation (EC) No 318/2006 provides that the world market situation or the specific requirements of certain markets may make it necessary to vary the refund according to destination.
(4)
Refunds should be granted only on products that are allowed to move freely in the Community and that comply with the requirements of Regulation (EC) No 318/2006.
(5)
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
Export refunds as provided for in Article 32 of Regulation (EC) No 318/2006 shall be granted on the products and for the amounts set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 9 May 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 May 2008.
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COMMISSION REGULATION (EC) No 1544/2007
of 20 December 2007
amending Regulation (EC) No 2707/2000 laying down rules for applying Council Regulation (EC) No 1255/1999 as regards Community aid for supplying milk and certain milk products to pupils in educational establishments
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products (1), and in particular Article 15 thereof,
Whereas:
(1)
Article 14(3) of Regulation (EC) No 1255/1999 as amended by Council Regulation (EC) No 1152/2007 of 26 September 2007 sets up the aid level for milk supplied to pupils in educational establishments, regardless of its fat content and provides for the adaptation of the aid level for other eligible products.
(2)
Commission Regulation (EC) No 2707/2000 (2) should therefore be amended 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
Regulation (EC) No 2707/2000 is amended as follows:
1.
Article 3 is replaced by the following:
‘Article 3
1. Member States may pay the aid on eligible products the list of which is set out in Annex I.
2. In the French overseas departments, milk flavoured with chocolate or otherwise may be reconstituted milk.
3. Member States may authorise the addition of a maximum of 5 mg of fluorine per kilogram to category I products.
4. An aid shall only be granted on the products listed in Annex I to this Regulation if the products comply with the requirements of Regulation (EC) No 852/2004 of the European Parliament and of the Council (3) and Regulation (EC) No 853/2004 of the European Parliament and of the Council (4), and in particular the requirements concerning preparation in an approved establishment and the identification marking requirements specified in Section I of Annex II to Regulation (EC) No 853/2004.
2.
Article 4(1) is replaced by the following:
‘1. The aid rates are set out in Annex II.’;
3.
Article 5(2) is replaced by the following:
‘2. For products of categories II to VI listed in Annex I the calculation shall use the following equivalences:
(a)
category II: 100 kg = 300 kg of milk;
(b)
category III: 100 kg = 765 kg of milk;
(c)
category IV: 100 kg = 850 kg of milk;
(d)
category V: 100 kg = 935 kg of milk;
(e)
category VI: 100 kg = 750 kg of milk.’;
4.
Annexes I and II are 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.
It shall apply from 1 January 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 December 2007.
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COMMISSION REGULATION (EC) No 391/2005
of 9 March 2005
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 10 March 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 March 2005.
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Commission Directive 2003/112/EC
of 1 December 2003
amending Council Directive 91/414/EEC to include paraquat as an active substance
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market(1), as last amended by Commission Directive 2003/84/EC(2), and in particular Article 6(1) thereof,
Whereas:
(1) Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market(3), as last amended by Regulation (EC) No 2266/2000(4), establishes a list of active substances of plant protection products to be assessed, with a view to their possible inclusion in Annex I to Directive 91/414/EEC. That list includes paraquat.
(2) For paraquat, the effects on human health and the environment have been assessed in accordance with the provisions laid down in Regulation (EEC) No 3600/92 for a range of uses proposed by the notifier. Pursuant to Commission Regulation (EC) No 933/94 of 27 April 1994 laying down the active substances of plant protection products and designating the rapporteur Member State for the implementation of Commission Regulation (EEC) No 3600/92(5), as last amended by Regulation (EC) No 2230/95(6), the United Kingdom was designated as rapporteur Member State. The United Kingdom submitted the relevant assessment reports and recommendations to the Commission on 31 October 1996 in accordance with Article 7(1)(c) of Regulation (EEC) No 3600/92.
(3) This assessment report has been reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health. The review was finalised on 3 October 2003 in the format of the Commission review report for paraquat.
(4) The report on paraquat and further information were also submitted to the Scientific Committee for Plants. The Committee was asked to comment on the relevance for consumers and operators of the ocular and pulmonary changes, which were observed in the long-term rat study, on the risk for operators, taking into particular account potential inhalatory and dermal exposure, on potential long-term effects to soil-dwelling organisms, and on the risks the intended uses might pose to reproducing birds and hares. In its opinion(7), the Scientific Committee concluded that neither the pulmonary lesions observed in animals after oral administration of paraquat nor the systemic effects on the eye, observed in rats and not in other species, are relevant to the risk assessment for operators and consumers. Based on the field exposure studies, corroborated by information on health surveys on operators, the Committee found that when paraquat is used as a plant protection product as recommended under prescribed good working practices, its use does not pose any significant health risk for the operators. The Committee also noted that uses at recommended field rates are unlikely to pose a significant risk to soil-dwelling organisms. However, a more detailed appraisal of the likely effects of paraquat on the rate of degradation of organic material in soil was requested in view of remaining uncertainty. This information was subsequently delivered and evaluated by the rapporteur Member State. Furthermore, the Scientific Committee concluded that available studies indicate a hazard to ground-breeding birds but further information on realistic exposures is needed for a definitive assessment of the risk. This information was subsequently provided and the evaluation within the Standing Committee on the Food Chain and Animal Health concluded that there are several situations where exposure to ground-nesting birds is negligible. However, there are also scenarios where exposure may occur. The evaluation within the Standing Committee on the Food Chain and Animal Health concluded that the risk would be acceptable, provided appropriate risk-mitigation measures are applied. Finally, the Scientific Committee concluded that paraquat may be expected to cause lethal and sublethal effects for hares, but the available data are inadequate to estimate the proportion of hares affected. The views of the Scientific Committee were taken into consideration when drafting this Directive and the review report. The evaluation within the Standing Committee on the Food Chain and Animal Health concluded that the risk would be acceptable if appropriate risk-mitigation measures were applied.
(5) It has appeared from the various examinations made that there are uses of plant protection products containing paraquat which may be expected to satisfy, in general, the requirements laid down in Article 5(1)(a) and (b) of Directive 91/414/EEC, provided appropriate risk-mitigation measures and restrictions are applied. It is therefore appropriate to include paraquat in Annex I, in order to ensure that in all Member States the authorisations of plant protection products containing this active substance can be granted in accordance with the provisions of that Directive. However some uses of plant protection products containing paraquat pose an unacceptable risk and should therefore not be authorised. Moreover, it is considered appropriate to ensure that Member States impose that the notifier and any other authorisation holder of paraquat establish a stewardship programme particularly for operator safety, and that they report to the Commission yearly on incidences of operator health problems as well as possible impacts on hares. This should enable a verification of whether the risk-mitigation measures imposed by Member States really limit the possible risks for operators and hares to an acceptable level, and, if appropriate, a re-evaluation, in line with scientific progress, of the properties and potentially related risks to humans and the environment.
(6) A reasonable period should be allowed to elapse before an active substance is included in Annex I in order to permit Member States and the interested parties to prepare themselves to meet the new requirements which will result from the inclusion.
(7) After inclusion, Member States should be allowed a reasonable period within which to implement the provisions of Directive 91/414/EEC as regards plant protection products containing paraquat, and, in particular, to review existing authorisations to ensure that the conditions regarding those active substances set out in Annex I to Directive 91/414/EEC are satisfied. A longer period should be provided for the submission and assessment of the complete dossier of each plant protection product in accordance with the uniform principles laid down in Directive 91/414/EEC.
(8) It is therefore appropriate to amend Directive 91/414/EEC accordingly.
(9) The measures provided for in this Directive are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Annex I to Directive 91/414/EEC is amended as set out in the Annex to this Directive.
Article 2
Member States shall adopt and publish by 30 April 2005 at the latest the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof.
They shall apply those provisions from 1 May 2005.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article 3
1. Member States shall review the authorisation for each plant protection product containing paraquat to ensure that the conditions relating to those active substances set out in Annex I to Directive 91/414/EEC are complied with. Where necessary and by 30 April 2005 at the latest, they shall amend or withdraw the authorisation.
2. Member States shall, for each authorised plant protection product containing paraquat as either the only active substance or as one of several active substances all of which were listed in Annex I to Directive 91/414/EEC, by 31 October 2004 at the latest, re-evaluate the product in accordance with the uniform principles provided for in Annex VI to Directive 91/414/EEC, on the basis of a dossier satisfying the requirements of Annex III to that Directive. On the basis of that evaluation, they shall determine whether the product satisfies the conditions set out in Article 4(1)(b), (c), (d) and (e) of Directive 91/414/EEC. Where necessary and by 31 July 2008 at the latest, they shall amend or withdraw the authorisation.
Article 4
Member States shall ensure that the authorisation holders report at the latest on 31 March 2008 on the effects of risk-mitigation measures to be applied through a stewardship programme and the implementation of advances in paraquat formulations. Member States shall submit this information without delay to the Commission.
The Commission shall submit to the Standing Committee on the Food Chain and Animal Health a report on the application of the present Directive indicating whether the requirements for Annex I inclusion continue to be satisfied and may propose any amendment, including if necessary the withdrawal from Annex I, to the present Directive that it deems necessary to comply with its provisions.
Article 5
This Directive shall enter into force on 1 November 2004.
Article 6
This Directive is addressed to the Member States.
Done at Brussels, 1 December 2003.
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COMMISSION REGULATION (EC) No 1289/97 of 2 July 1997 amending Regulation (EC) No 1960/95 laying down detailed rules for the transitional application of the system of entry prices for grape juice and musts and Regulation (EC) No 2309/95 establishing transitional measures for the import of grape juice and must from Cyprus
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 536/97 (2), and in particular Articles 53 (3) and 83 thereof,
Whereas 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 (3), as last amended by Regulation (EC) No 1161/97 (4), and in particular Article 3 (1) thereof;
Whereas Commission Regulation (EC) No 1960/95 (5), as amended by Regulation (EC) No 1266/96 (6), lays down transitional measures, valid until 30 June 1997 to facilitate the introduction of the arrangements for monitoring import prices for grape juice and must resulting from the agreements concluded during the Uruguay Round of multilateral trade negotiations; whereas that Regulation permits customs authorities to compare import prices with the entry prices given in the common customs tariff in order to determine the customs duties to be collected;
Whereas Commission Regulation (EC) No 2309/95 (7), as amended by Regulation (EC) No 1266/96, lays down transitional measures, valid until 30 June 1997 to facilitate the introduction of the arrangements applicable to imports of grape juice and must from Cyprus resulting from the agreements concluded during the Uruguay Round of multilateral trade negotiations pending a long-term solution within the framework of the agreement creating an association between the European Community and the Republic of Cyprus;
Whereas the period for the adoption of transitional measures was extended until 30 June 1998 by Regulation (EC) No 1161/97 extending the period for the adoption of the transitional measures required in the agriculture sector in order to implement the agreements concluded during the Uruguay Round of multilateral trade negotiations; whereas, pending the adoption by the Council of definitive measures, the transitional measures provided for in Regulations (EC) No 1960/95 and (EC) No 2309/95 should be extended until 30 June 1998;
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 (EC) No 1960/95 is hereby amended as follows:
1. in Article 1, '30 June 1997` is replaced by '30 June 1998`;
2. in Article 4, '30 June 1997` is replaced by '30 June 1998`.
Article 2
In Article 2 of Regulation (EC) No 2309/95, '30 June 1997` is replaced by '30 June 1998`.
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 with effect from 1 July 1997.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 July 1997.
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Commission Decision
of 22 December 1999
on State aid which Italy plans to grant to Fiat Auto SpA for its Mirafiori Meccanica plant (Turin)
(notified under document number C(1999) 5211)
(Only the Italian text is authentic)
(Text with EEA relevance)
(2000/514/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 invited the parties concerned to submit their comments in accordance with the abovementioned provisions(1),
Whereas:
I. Procedure
(1) Between October and December 1997 the Italian Government notified the Commission, pursuant to Article 88(3) of the EC Treaty, of six planned measures under which it proposed to grant State aid to Fiat Auto SpA ("Fiat"), one of which (registered under N 838/97) concerned the Mirafiori Meccanica plant in Turin, Piedmont ("Fiat Mirafiori"), for investments at the Mirafiori engine works. Requests for further information and a number of reminders were sent to the Italian authorities to elicit the data required for a Commission decision. On 23 April 1998 a meeting was held with representatives of the Italian authorities to discuss the methods by which the cases would be examined. Finally, in a letter of 20 November 1998, the Italian authorities supplied partial replies to the questions raised by the Commission.
(2) By letter of 2 March 1999 the Commission informed Italy that it had decided on 3 February 1999 to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the proposed aid measures, and formally required the Italian Government to supply, within one month, all the documents, information and data required to assess the compatibility of the aid with the common market. If Italy failed to supply those items, the Commission would reach a decision on the basis of the information in its possession.
(3) The decision to initiate the procedure was published in the Official Journal of the European Communities(2), and interested parties were invited by the Commission to submit comments. The Commission has not received any comments from interested parties.
(4) Representatives of the Commission went to Mirafiori on 24 February 1999 to discuss the case among other matters.
(5) After having requested, on 9 April 1999, an extension of the deadline for reply, the Italian authorities sent the Commission, by letter dated 16 April 1999, the information they considered necessary for it to complete its examination of the case.
(6) Further examination strengthened the Commission's initial doubts, particularly as regards the need for the planned aid. By letter of 14 June 1999 it therefore informed Italy that it had decided on 26 May 1999 to extend the procedure initiated on 3 February 1999 and formally required the Italian Government to supply, within one month, all the documents, information and data required to assess the compatibility of the aid with the common market. If Italy failed to supply those items, the Commission would reach a decision on the basis of the information in its possession.
(7) The decision to extend the procedure was published in the Official Journal of the European Communities(3), and interested parties were invited by the Commission to submit comments. The Commission has not received any comments from interested parties.
II. Detailed description of the aid
(8) The planned aid would be granted to Fiat, which is controlled by Fiat SpA. The Fiat group operates in the motor vehicle industry, through Fiat Auto for motor vehicles, Iveco for commercial vehicles and Magneti Marelli for components.
(9) Fiat has plants in Italy, Poland, Turkey and South America. In 1998 it produced 2,9 million vehicles(4) of the Alfa Romeo, Ferrari, Fiat, Lancia and Maserati makes, 1,6 million of which in Europe. Roughly one half of sales were recorded on the domestic market, one third in other Member States and the remainder outside the Community.
(10) The investment proposed by Fiat is located at Mirafiori, which is currently in an assisted area under Article 87(3)(c) of the EC Treaty qualifying for a maximum regional aid intensity for large firms of 10 % net grant equivalent (nge).
(11) The project relates to the production of "Torque" engines used to power segment "B" and "C" Fiat vehicles produced in Italy and outside the Community. The investments, totalling ITL 468,4 billion (approximately EUR 242 million), were carried out according to the following schedule:
TABLE
(12) The Torque engines have been the focus of a number of innovations, as regards both the product and the manufacturing processes. Fiat Mirafiori appears to have been chosen because of the opportunity to use part of the existing production lines following appropriate modifications, something which helped to limit the investments needed for the project.
(13) Regional aid worth a nominal ITL 30,3 billion (EUR 16 million) is planned under the approved scheme provided for by Law No 488/92. The discounted aid intensity appears to be 4,6 %.
(14) No other aid is planned for the project.
(15) When the Commission decided on 3 February 1999 to initiate the procedure, it expressed many doubts as to the compatibility of the planned aid, with special reference to the mobility of the project and the need for the aid. Nor could it find, at that stage, any justification for the granting of aid for innovative investment or aid for environmental protection. The Commission consequently concluded that, on the basis of the information in its possession, there were no reasons why the aid in question would qualify for any of the exemptions under Article 87(3) of the EC Treaty.
(16) After 3 February 1999, when the procedure was initiated, it emerged that Fiat Mirafiori had not been located in an assisted area until March 1995. The project began in 1994 and was preceded by feasibility, location, etc. studies, which were presumably carried out around 1993. Thus the investment decision must certainly have been taken by 1993 or 1994 at the latest, before the area in which Fiat Mirafiori is located was considered to be an assisted area. In its decision extending the investigation, the Commission therefore expressed serious doubts as to whether the investor, when considering the financing of the project, could have assumed that it would obtain regional aid. Consequently, the aid was not in its view necessary to the implementation of the investment concerned at Fiat Mirafiori.
(17) Both in the decision initiating the procedure and in the decision extending the investigation, the Commission formally required Italy to supply within one month all the information required to assess the compatibility of the aid measure in question. If Italy failed to do so, it would reach a decision on the basis of the information in its possession.
III. Comments by Italy
(18) On 9 April 1999 the Italian authorities requested an extension of the deadline for their reply to the decision of 3 February 1999 initiating the procedure, and on 16 April they sent a letter to the Commission containing the information deemed necessary to conclude the examination of the case.
(19) The Italian Government first supplied all the necessary clarifications concerning the location studies carried out by Fiat in 1993 and 1994 prior to the choice of Fiat Mirafiori. It stated that the competing sites were Bielsko-Biala in Poland, a plant operated by the company Tofas in Turkey and a site belonging to the Cormec group in Argentina. The competing sites offered the advantage of lower labour costs than in Italy while meeting satisfactory standards of productivity and quality. As Tofas and Cormec were not wholly owned by Fiat, a fact which carried a significant risk for a strategic project such as the Torque engine, the location decision was narrowed down to a choice between Fiat Mirafiori and Bielsko-Biala.
(20) The expected regional aid would not be sufficient to offset the additional costs deriving from the decision to locate the investment at Fiat Mirafiori, but it was undoubtedly a factor in the final decision.
(21) Secondly, Italy pointed out the specific conditions governing the application of Law No 488/92, with special reference to its retroactive application to eligible investments.
(22) Thirdly, the Italian Government stated that the investments began in May/June 1994. The earlier activities, including the dismantling of the old plant in January 1993 and the investment expenditure incurred in May 1993, consisted in clearing the area occupied by the old production line, which was subsequently replaced by the Torque engine production line. According to the Italian authorities, these costs are not linked to the project under examination since the old plant would have been removed in any case, wherever it was decided to locate the investments for producing the Torque engine.
(23) Fourthly, Italy supplied further data for the cost-benefit analysis (CBA) and the market survey.
(24) In reply to the Commission's decision of 26 May 1999 to extend the investigation, on 20 July 1999 Italy transmitted a letter giving detailed information on two main aspects: the events leading up to adoption of the new aid scheme and the link with implementation of the aid in question, and compliance with the formal criteria in the applications for aid.
IV. Assessment of the aid
(25) The measure notified by Fiat constitutes State aid within the meaning of Article 87(1) of the EC Treaty. It would be financed by the State or through State resources; moreover, given that it represents a significant proportion of the project funding, it is likely to distort competition within the Community, giving an advantage to Fiat over other companies not receiving aid. Finally, the market for motor vehicle engines, like the motor vehicle market itself, is characterised by extensive trade between Member States.
(26) The aid in question is intended for a firm which manufactures and assembles motor vehicles and their engines. The firm is therefore part of the motor vehicle industry within the meaning of the Community framework on State aid to the motor vehicle industry(5) (the "relevant Community framework").
(27) The aid in question, notified on 1 December 1997, is to be granted under the approved scheme provided for by Law No 488/92. The relevant Community framework specifies that aid which the public authorities plan to grant to an individual project under authorised aid schemes for a firm operating in the motor vehicle industry must, in accordance with Article 88(3) of the EC Treaty, be notified before being granted if either of the following thresholds is reached:
- total cost of the project: EUR 50 million, or
- total gross aid for the project, whether State aid or aid from Community instruments: EUR 5 million.
(28) Both the total cost of the project and the amount of aid exceed their notification thresholds. Thus, in notifying the proposed aid for Fiat Mirafiori, the Italian authorities have complied with the requirements of Article 88(3) of the EC Treaty.
(29) Article 87(2) of the EC Treaty specifies certain types of aid that are compatible with the Treaty. In view of the nature and purpose of the aid and the geographic location of the investment, Article 87(2)(a), and (c) are not applicable. Article 87(3) specifies other forms of aid which may be regarded as compatible with the common market. Compatibility must be assessed from the standpoint of the Community as a whole and not in a purely domestic context. In order to maintain the proper functioning of the common market and having regard to the principle laid down in Article 3(g) of the EC Treaty, the exceptions in Article 87(3) must be construed narrowly. With regard to the exceptions in Article 87(3)(b) and (d), it is clear that the aid in question is not intended for a project of common European interest or to remedy a serious disturbance in the Italian economy or to promote culture and heritage conservation. As regards the exceptions in Article 87(3)(a) and (c), only subparagraph (c) could be relevant as Mirafiori is now located in an assisted area under Article 87(3)(c) and no longer in an assisted area under Article 87(3)(a).
(30) To determine whether the proposed regional aid measures are compatible with the common market, under the exemption provided for in Article 87(3)(c) of the Treaty, the Commission must therefore check compliance with the conditions specified in the relevant Community framework.
(31) In accordance with the framework, the Commission checks in every instance that the aid granted is proportional to the seriousness of the problems that it is intended to solve and is necessary for the implementation of the project. Both tests, proportionality and necessity, must be satisfied if the Commission is to authorise State aid in the motor vehicle industry(6).
(32) While the proportionality of aid is usually assessed by means of a cost-benefit analysis, in the case in point the Commission can limit its assessment to the necessity test alone.
(33) When initiating the procedure, the Commission took note of the particular events which led to the authorisation of the Italian scheme under Law No 488/92. In keeping with the decisions it had already taken on 18 November 1997(7), 30 September 1998(8) and 7 April 1998(9), the Commission acknowledged that particular circumstances surrounding the adoption of Law No 488/92 could explain the long delays between the launch of the project, the start of mass production of Torque engines in 1995, the application for aid in May 1996 and the notification in December 1997. However, examination of the need for the aid in order to locate the project at Fiat Mirafiori cannot be restricted to consideration of such factors; the Commission must also check the following:
- whether the regional aid was indeed taken into account in the financial analysis of the project, the location study and the choice of the Mirafiori site, and
- whether the project was genuinely mobile.
(34) The Community also has to check, for each aspect, whether the evidence supplied by Italy in support of its claims is sufficient in the context of a narrow interpretation of the exemptions provided for by Article 87(3) of the Treaty and having due regard to the formal requirements to supply information issued by the Commission on 3 February and 26 May 1999.
(35) The Italian authorities' letter of 16 April 1999 states that the project was launched in May/June 1994, that orders for tooling were placed in March/April 1994 and that the first deliveries of tooling took place during the second half of 1994. The Commission logically concludes that any location study that prompted Fiat to choose the Mirafiori site must have been carried out between January 1993 and April 1994. That assessment was confirmed by the Italian authorities in their letter of 20 July 1999.
(36) Fiat Mirafiori was not located in an assisted area until March 1995, when certain areas of Turin, including Mirafiori, were classed as assisted areas for the purposes of Article 87(3)(c) of the Treaty; as confirmed in the letter of 20 July 1999, Italy submitted an initial proposal for the areas to be classed as assisted areas under that provision only in September 1994.
(37) The decision on the investment in question was therefore taken at a time when Fiat Mirafiori was not located in an assisted area.
(38) This assessment is not affected by Fiat Mirafiori's location in an Objective 2 area, or by the alleged possibility of transferring the machinery from one site to another during the initial phases of the project. Pre-production units were furthermore manufactured in January/February 1995, before the decision classing the area as an assisted area was taken. It is also stated in Annex 3(b) to the Italian authorities' letter of 20 November 1998 that work on the Torque engine was carried out at the Mirafiori site from 1993 onwards, for example to modify the production lines for the engine block, the crankshaft, the connecting rods, the flywheel and the oil pump spindle.
(39) The Commission therefore takes the view that Fiat did not in fact consider the financing of its project at Mirafiori on the assumption that it would obtain regional aid; neither have the Italian authorities ever produced evidence refuting that view.
(40) Even if the company did include the possibility of receiving regional aid in its reasoning, it implicitly accepted the risk of the aid being withheld, since the Commission's prior authorisation was required in accordance with the relevant Community framework.
(41) Moreover, at the time Fiat decided to carry out the investment, which was also when it took into account the possibility of obtaining State aid to help finance the Fiat Mirafiori project, the Commission's practice required a cost-benefit analysis (CBA) based on a comparison between the plant in question and an alternative site in a non-assisted region of the Community where Fiat could very probably have located the investment. The Italian authorities and Fiat were familiar with this methodology at the time since they had, for example, already handled the Fiat Mezzogiorno case(10). The Commission does not have any information on the choice of comparator plant, but the most likely alternative would have been a plant located in central or northern Italy. The Commission's experience shows that a CBA drawn up on the basis of such an assumption would have made it difficult, if not impossible, to identify handicaps for Fiat Mirafiori justifying the authorisation of regional aid. Again, the Italian authorities have not supplied proof that Fiat indeed took regional aid into account in its decision to carry out the investment at Fiat Mirafiori.
(42) The Commission points out, incidentally, that reference to an alternative plant in Poland (Bielsko-Biala), as called for by Italy in the case in point, became possible only after the entry into force of the relevant Community framework in January 1998, some four years after the investment decision was taken.
(43) Lastly, the Commission considers that a Member State and, all the more so, an undertaking cannot legitimately rely on a given region being classed as eligible for assistance under Article 87(3) until the Commission has taken a decision to that end.
(44) For these reasons the Commission concludes that the Italian Government has not sufficiently demonstrated that Fiat actually considered the grant of regional aid to be a necessary condition for selecting Fiat Mirafiori. The notified regional aid is therefore not necessary for achieving the objectives referred to in Article 87(3) of the EC Treaty.
(45) Secondly, pursuant to the abovementioned Community framework, in order to prove the need for regional aid the recipient company must clearly demonstrate that it has an economically viable alternative location for part or parts of its project. If there were no other new or existing industrial site within the group capable of receiving the proposed investment, the firm would be compelled to carry out its project in the sole plant available, even in the absence of aid. This mobility study is now, under the framework currently in force, even more important than in the past. It is no longer sufficient for the Commission to recognise theoretical mobility; it has to establish that the investor had both the possibility and the intention of locating the project at the alternative site if the regional aid could not be granted.
(46) The information supplied by Italy in this connection continues to be scarce. The Commission has received only a brief statement explaining that, of the three possible choices (Cormec in Argentina, Tofas in Turkey and Fiat Auto Poland), two (Cormec and Tofas) were rejected as being too risky(11), while the Polish option offered considerable advantages in comparison with Fiat Mirafiori, particularly in terms of labour costs.
(47) The Commission takes the view that at the time the investment decision was taken, in 1993/1994, the real advantages of locating the project in Poland were not as obvious as the Italian authorities currently maintain. For example, the industrial risk was not negligible, at a time when Fiat Auto Poland was undergoing intensive reorganisation. This factor, which Italy mentions briefly but dismisses as unimportant, should not be underestimated in the context of a strategic project such as the Torque engine. Production would have been difficult to organise, involving the transport of sensitive components between Italy and Poland(12); and networks of local component suppliers were not as highly developed as they are today. Production of Fiat engines in Poland is furthermore currently limited to two relatively old models: the 652 cc and the 900 cc engines.
(48) The Italian Government has provided the Commission with only patchy indications concerning the technical feasibility of producing the Torque engine at Bielsko-Biala under optimum conditions and hardly any information regarding Fiat's real intention to relocate the investment concerned to Poland.
(49) The Commission accordingly concludes that Italy has not demonstrated the mobility of the project. In the absence of a credible alternative site, the notified regional aid is therefore not necessary in order to achieve the objectives referred to in Article 87(3) of the EC Treaty.
(50) Other aid objectives mentioned at one point by the Italian Government, such as environmental protection and innovation, have never been explained in detail, despite the formal requirements to provide information issued by the Commission. The Commission has consequently not been able to examine the presence of aid for any innovative or environmental protection measures.
V. Conclusion
(51) The regional aid which the Italian authorities plan to grant to Fiat Mirafiori is not necessary in order to achieve the objectives referred to in Article 87(3)(c) of the EC Treaty, namely to facilitate the development of certain economic activities or of certain economic areas. The aid in question is therefore incompatible with the common market,
HAS ADOPTED THIS DECISION:
Article 1
The State aid that Italy plans to grant to Fiat Auto SpA for its Mirafiori Meccanica plant (Turin) is incompatible with the common market.
The aid shall consequently not be put into effect.
Article 2
Italy shall inform the Commission, within two months of the date of notification of this Decision, of the measures it has taken to comply with it.
Article 3
This Decision is addressed to the Italian Republic.
Done at Brussels, 22 December 1999.
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*****
COMMISSION DECISION
of 29 July 1983
on the implementation of the reform of agricultural structure in the Netherlands pursuant to Council Directives 72/159/EEC and 72/160/EEC
(Only the Dutch text is authentic)
(83/388/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,
Having regard to Council Directive 72/160/EEC of 17 April 1972 concerning measures to encourage the cessation of farming and the reallocation of utilized agricultural area for the purpose of structural improvement (3), as last amended by Directive 82/436/EEC, and in particular Article 9 (3) thereof,
Whereas, pursuant to Article 17 (4) of Directive 72/159/EEC and Article 8 (4) of Directive 72/160/EEC, the Netherlands Government forwarded Decisions of the Board of the Foundation administering the Agricultural Development and Reorganization Fund:
- No 294 of 2 June 1983 amending the Decision on farms suitable for development;
- No 296 of 2 June 1983 amending the scheme for the cessation of farming;
Whereas under Article 18 (3) of Directive 72/159/EEC and Article 9 (3) of Directive 72/160/EEC the Commission has to decide whether, having regard to the abovementioned communication, the existing provisions in the Netherlands for the implementation of Directive 72/159/EEC and 72/160/EEC continue to satisfy the conditions for a financial contribution by the Community;
Whereas the abovementioned Decisions can still be regarded as satisfying the conditions laid down by Decisions 72/159/EEC and 72/160/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 Decisions of the Board of the Foundation administering the Agricultural Development and Reorganization Fund Nos 294 and 296 of 2 June 1983, the provisions for the implementation of Directives 72/159/EEC and 72/160/EEC in the Netherlands continue to satisfy the conditions for a Community financial contribution towards the common measures referred to in Article 15 of Directive 72/159/EEC and Article 6 of Directive 72/160/EEC.
Article 2
This Decision is addressed to the Kingdom of the Netherlands.
Done at Brussels, 29 July 1983.
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COMMISSION REGULATION (EC) No 868/2006
of 14 June 2006
on granting of import licences for cane sugar for the purposes of certain tariff quotas and preferential agreements
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (1),
Having regard to Council Regulation (EC) No 1095/96 of 18 June 1996 on the implementation of the concessions set out in Schedule CXL drawn up in the wake of the conclusion of the GATT XXIV.6 negotiations (2),
Having regard to Commission Regulation (EC) No 1159/2003 of 30 June 2003 laying down detailed rules of application for the 2003/04, 2004/05 and 2005/06 marketing years for the import of cane sugar under certain tariff quotas and preferential agreements and amending Regulations (EC) No 1464/95 and (EC) No 779/96 (3), and in particular Article 5(4) thereof,
Whereas:
(1)
Article 9 of Regulation (EC) No 1159/2003 lays down detailed rules on determining the delivery obligations at zero duty for products falling within CN code 1701 expressed as white sugar equivalent for imports originating in countries which are parties to the ACP Protocol and the India Agreement.
(2)
Commission Regulation (EC) No 863/2006 of 13 June 2006 adjusting the quantities of the delivery obligations for sugar cane to be imported under the ACP Protocol and the India Agreement for the 2005/06 delivery period (4) adjusted the delivery obligation for Belize, Fiji, Kenya, Malawi, Mauritius and Swaziland, higher than all the import licence applications submitted to date for the 2005/06 delivery period.
(3)
Under these circumstances, and in the interests of clarity, it should be indicated that the limits concerned have not been reached,
HAS ADOPTED THIS REGULATION:
Article 1
In the case of import licence applications presented from 5 to 9 June 2006 in line with Article 5(1) of Regulation (EC) No 1159/2003 licences shall be issued for the quantities indicated in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 15 June 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 June 2006.
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Council Regulation (EC) No 2012/2002
of 11 November 2002
establishing the European Union Solidarity Fund
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular the third paragraph of Article 159 and Article 308 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),
Having regard to the resolution of the Committee of the Regions(4),
Whereas:
(1) In the event of major disasters, the Community should show its solidarity with the population of the regions concerned by providing financial assistance to contribute to a rapid return to normal living conditions in the disaster-stricken regions. The assistance should mainly be mobilised in case of natural disasters.
(2) Existing economic and social cohesion instruments are able to finance risk-prevention measures and the repair of damaged infrastructure. However, provision should also be made for an additional instrument, to be distinguished from existing Community instruments, which enables the Community to act swiftly and efficiently to help, as quickly as possible, in mobilising emergency services to meet people's immediate needs and contribute to the short-term restoration of damaged key infrastructure so that economic activity can resume in the disaster-stricken regions.
(3) The European Union should also show solidarity with the countries currently negotiating their accession. Extending this Regulation to cover those countries entails recourse to Article 308 of the Treaty.
(4) Community aid should be complementary to the efforts of the States concerned and be used to cover a share of the public expenditure committed to dealing with the damage caused by a major disaster.
(5) In line with the principle of subsidiarity, assistance under this instrument should be confined to major disasters with serious repercussions on living conditions, the natural environment or the economy.
(6) A "major disaster" within the meaning of this Regulation should mean any disaster, in at least one of the States concerned, resulting in important damage expressed in financial terms or as a percentage of the gross national income (GNI). In order to permit interventions in the case of disasters that, while important, do not reach the minimum scale required, assistance may also be granted under exceptional circumstances in case an eligible neighbouring country is affected by the same disaster, or whenever the major part of the population of a specific region is affected by a disaster with serious and lasting repercussions on living conditions.
(7) Community action should not relieve third parties of their responsibility who, under the "polluter-pays" principle, are liable in the first instance for the damage caused by them, or discourage preventive measures at both Member State and Community level.
(8) This instrument should allow a rapid decision to be taken to commit specific financial resources and mobilise them as quickly as possible. Administrative procedures should be adjusted accordingly and confined to the minimum absolutely necessary. To this end, the European Parliament, the Council and the Commission have concluded on 7 November 2002 an Interinstitutional Agreement 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.
(9) It may be desirable for the beneficiary State, in conformity with its specific constitutional, institutional, legal or financial context, to associate the regional or local authorities with the conclusion and the application of the implementation arrangements, the beneficiary State remaining in all cases responsible for the implementation of the assistance and for the management and control of the operations supported by Community financing.
(10) The detailed rules for applying this instrument should be adapted to the urgency of the situation.
(11) An operation funded by this instrument should not benefit for the same purpose from assistance under Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund(5), Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds(6), Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF)(7), Council Regulation (EEC) No 3906/89 of 18 December 1989 on economic aid to the Republic of Hungary and the Polish People's Republic(8), Council Regulation (EC) No 1267/1999 of 21 June 1999 establishing an Instrument for Structural Policies for Pre-accession(9), Council Regulation (EC) No 1268/1999 of 21 June 1999 on Community support for pre-accession measures for agriculture and rural development in the applicant countries of central and eastern Europe in the pre-accession period(10), Commission Regulation (EC) No 2760/98 of 18 December 1998 concerning the implementation of a programme for cross-border cooperation in the framework of the Phare programme(11), Council Regulation (EC) No 1266/1999 of 21 June 1999 on coordinating aid to the applicant countries in the framework of the pre-accession strategy and amending Regulation (EEC) No 3906/89(12), Council Regulation (EC) No 555/2000 of 13 March 2000 on the implementation of operations in the framework of the pre-accession strategy for the Republic of Cyprus and the Republic of Malta(13), or Council Regulation (EC) No 2236/95 of 18 September 1995 laying down general rules for the granting of Community financial aid in the field of trans-European networks(14); damage repaired under Community or international instruments relating to the compensation of specific damages should not, for the same purpose, benefit from assistance under this instrument.
(12) Maximum transparency is required in implementing the Community's financial assistance as well as proper monitoring of the use of resources.
(13) Prudent financial management is required to ensure that the Community can be in a position to respond if several major disasters occur in the same year.
(14) In exceptional cases and depending on the availability of financial resources under this instrument in the year of the occurrence of the disaster, provision should be made for possible supplementary grants from this instrument under the next year's Fund.
(15) A deadline should be laid down for the use of the financial assistance awarded and provision should be made for the beneficiary States to justify the use made of the assistance they receive. Assistance received which is subsequently recovered from third parties, or which was received in excess of the final valuation of the damages, should be recovered.
(16) In view of the exceptional circumstances, countries affected by disasters from Summer 2002 onwards should qualify for assistance under this instrument.
(17) In order to ensure rapid assistance to the countries affected by the recent floodings, it is very urgent to adopt this instrument; therefore, it is necessary to grant an exception to the six-week period for consideration by national parliaments referred to in Part I, point 3 of the Protocol on the role of national parliaments in the European Union, annexed to the Treaty on European Union and to the Treaties establishing the European Communities,
HAS ADOPTED THIS REGULATION:
Article 1
A European Union Solidarity Fund, hereinafter referred to as "the Fund", is hereby established to enable the Community to respond in a rapid, efficient and flexible manner to emergency situations under the terms of this Regulation.
Article 2
1. At the request of a Member State or country involved in accession negotiations with the European Union, hereinafter referred to as "beneficiary State", assistance from the Fund may be mainly mobilised when a major natural disaster with serious repercussions on living conditions, the natural environment or the economy in one or more regions or one or more countries occurs on the territory of that State.
2. A "major disaster" within the meaning of this Regulation means any disaster resulting, in at least one of the States concerned, in damage estimated either at over EUR 3 billion in 2002 prices, or more than 0,6 % of its GNI.
By way of exception, a neighbouring Member State or country involved in accession negotiations with the European Union, which has been affected by the same disaster can also benefit from assistance from the Fund.
However, under exceptional circumstances, even when the quantitative criteria laid down in the first subparagraph are not met, a region could also benefit from assistance from the Fund, where that region has been affected by an extraordinary disaster, mainly a natural one, affecting the major part of its population, with serious and lasting repercussions on living conditions and the economic stability of the region. Total annual assistance under this subparagraph shall be limited to no more than 7,5 % of the annual amount available to the Fund. Particular focus will be on remote or isolated regions, such as the insular and outermost regions as defined in Article 299(2) of the Treaty. The Commission shall examine with the utmost rigour any requests which are submitted to it under this subparagraph.
Article 3
1. Assistance from the Fund shall take the form of a grant. For each recognised disaster a single grant shall be awarded to a beneficiary State.
2. The aim of the Fund is to complement the efforts of the States concerned and to cover a share of their public expenditure in order to help the beneficiary State to carry out the following essential emergency operations, depending on the type of disaster:
(a) immediate restoration to working order of infrastructure and plant in the fields of energy, water and waste water, telecommunications, transport, health and education;
(b) providing temporary accommodation and funding rescue services to meet the immediate needs of the population concerned;
(c) immediate securing of preventive infrastructures and measures of immediate protection of the cultural heritage;
(d) immediate cleaning up of disaster-stricken areas, including natural zones.
3. Payments from the Fund are in principle limited to finance measures alleviating non insurable damages and shall be recovered if the cost of repairing the damage is subsequently met by a third party in accordance with Article 8.
Article 4
1. As soon as possible and no later than ten weeks after the first damage caused by the disaster, a State may submit an application for assistance from the Fund to the Commission providing all available information on, among other factors:
(a) the total damage caused by the disaster and its impact on the population and the economy concerned;
(b) the estimated cost of the operations referred to in Article 3;
(c) any other sources of Community funding;
(d) any other sources of national or international funding, including public and private insurance coverage which might contribute to the costs of repairing the damage.
2. On the basis of this information, and any clarifications to be provided by the State concerned, the Commission shall assess if the conditions for mobilising the Fund are met and shall determine the proposed amount of any possible grant as quickly as possible within the limits of the financial resources available. On 1 October each year, at least one-quarter of the annual amount should remain available in order to cover needs arising until the end of the year.
The Commission ensures an equitable treatment of requests presented by the States.
3. The Commission shall submit to the budgetary authority the proposals needed to authorise the corresponding appropriations. These proposals shall include all available information referred to in paragraph 1 and all other relevant information in the possession of the Commission, a demonstration that the conditions of Article 2 are met and a justification of the amounts proposed.
4. Once the appropriations are made available by the budgetary authority, the Commission shall adopt a grant decision and shall pay that grant immediately and in a single instalment to the beneficiary State upon signature of the agreement referred to in Article 5.
5. The eligibility of expenditure shall begin on the date referred to in paragraph 1.
Article 5
1. In accordance with the specific constitutional, institutional, legal or financial provisions of the beneficiary State and of the Community, the Commission and the beneficiary State, shall conclude an agreement to implement the grant decision. That agreement shall describe in particular the type and location of operations to be financed by the Fund.
2. The Commission shall ensure that the same commitments as entered into by the Member States under this Regulation are also entered into by countries negotiating their accession to the European Union within the framework of the relevant agreements and instruments.
3. Responsibility for selecting individual operations and implementing the grant under the agreement shall lie with the beneficiary State, in compliance with the terms of this Regulation, the grant decision and the agreement. The beneficiary State shall exercise this responsibility without prejudice to the Commission's responsibility for the implementation of the general budget of the European Union and in accordance with the provisions of the Financial Regulation applicable to shared or decentralised management.
Article 6
1. The beneficiary State shall be responsible for coordinating the contribution of the Fund to the operations referred to in Article 3, on the one hand, with assistance from the European Investment Bank (EIB) and other Community financing instruments, on the other.
2. Operations assisted under this Regulation shall not benefit from assistance from the Funds and instruments governed by Regulations (EC) No 1164/94, (EC) No 1260/1999, (EC) No 1257/1999, (EC) No 1267/1999, (EC) No 1268/1999, (EEC) No 3906/89, (EC) No 2760/98, (EC) No 555/2000 and (EC) No 2236/95, and shall comply with Regulation (EC) No 1266/1999. The beneficiary State shall ensure compliance with this provision.
3. Damage repaired under Community or international instruments relating to the compensation of specific damages shall not, for the same purpose, benefit from assistance from the Fund.
Article 7
Operations financed by the Fund shall be compatible with the provisions of the Treaty and instruments adopted under it, with Community policies and measures and with pre-accession assistance instruments.
Article 8
1. A grant shall be used within one year of the date on which the Commission has disbursed the grant. Any part of a grant remaining unused by that deadline, in compliance with the terms of this Regulation, shall be recovered by the Commission from the beneficiary State.
Beneficiary States shall seek all possible compensation from third parties.
2. No later than six months after the expiry of the one-year period from the date of disbursement of the grant, the beneficiary State shall present a report on the financial execution of the grant with a statement justifying the expenditure, indicating any other source of funding received for the operations concerned, including insurance settlements and compensation from third parties. The report shall detail the preventive measures introduced or proposed by the beneficiary State in order to limit damage and to avoid, to the extent possible, a recurrence of similar disasters.
At the end of this procedure, the Commission shall wind up the assistance from the Fund.
3. Where the cost of repairing the damage is subsequently met by a third party, the Commission shall require the beneficiary State to reimburse a corresponding amount of the grant.
Article 9
Applications for assistance and the decisions to grant assistance from the Fund, as well as the financial agreement, reports and any other related documents shall express all amounts in euro.
Article 10
1. In exceptional cases and if the remaining financial resources available in the Fund in the year of the occurrence of the disaster are not sufficient to cover the amount of assistance deemed necessary by the budgetary authority, the Commission may propose that the difference be financed through the next year's Fund. The annual budgetary ceiling of the Fund in the year of the occurrence of the disaster and the following year shall under all circumstances be respected.
2. In case of significantly lower valuation of the damage incurred, as shown by new elements, the Commission shall require the beneficiary State to reimburse a corresponding amount of the grant.
Article 11
The financing decisions and all agreements and contracts resulting therefrom shall provide for checks by the Commission, through the Anti-Fraud Office (OLAF), and for on-the-spot checks to be carried out by the Commission and the Court of Auditors, in accordance with the appropriate procedures.
Article 12
Before 1 July the Commission shall present to the European Parliament and to the Council a report on the activity of the Fund in the previous year. This report shall in particular contain information relating to Articles 3, 4 and 8.
Article 13
Notwithstanding the deadline provided for in Article 4(1), the Member States and countries involved in accession negotiations with the European Union which have been affected by disasters, as defined in Article 2, from 1 August 2002 onwards may request assistance from the Fund within two months of the date of entry into force of this Regulation.
Article 14
The Council shall review this Regulation on the basis of a proposal from the Commission by 31 December 2006 at the latest.
Article 15
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, 11 November 2002.
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*****
COUNCIL DECISION
of 25 July 1985
complementing Decision 84/1/Euratom, EEC with a view to the realization of a tritium-handling laboratory
(85/373/Euratom)
THE COUNCIL OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 7 thereof,
Having regard to the proposal from the Commission (1), presented after consultation of the Scientific and Technical Committee,
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas, in the context of the common policy relating to the field of science and technology, the multiannual research programme is one of the principal means whereby the European Atomic Energy Community can contribute to the safety and development of nuclear energy and to the acquisition and dissemination of information in the nuclear field;
Whereas, during the period 1984 to 1987, the Joint Research Centre must continue to play a central role in the Community's research strategy and to carry out work of common interest by drawing on a level of resources which is the equivalent of the level of the previous multiannual programme;
Whereas, more generally, the Joint Research Centre programme as a whole must be in keeping with the conclusions of the Council of 10 March 1983 with regard to European research activities of particular significance;
Whereas Council Decision 84/1/Euratom, EEC of 22 December 1983 adopting a research programme to be implemented by the Joint Research Centre for the European Atomic Energy Community and for the European Economic Community (1984 to 1987) (4) underlines a particular role of the Centre in the field of fusion technology and safety,
HAS DECIDED AS FOLLOWS:
Article 1
The European research activities of particular significance, to which the Council refers in its Decision 84/1/Euratom, EEC, must have as their objective realization of a tritium-handling laboratory at the Ispra establishment of the Joint Research Centre.
Article 2
The construction and exploitation of the tritium-handling laboratory shall be fully integrated into the 1984 to 1987 programme of the Joint Research Centre, as part of the 'Fusion technology and safety' sub-programme. With reference to Annex A of Decision 84/1/Euratom, EEC, the project 'studies concerning a tritium-handling laboratory' shall be replaced by 'realization of a tritium-handling laboratory'.
Article 3
With reference to Annex B to Decision 84/1/Euratom, EEC, the line entitled 'Specific appropriations for projects of European significance' shall be transferred to the 'Fusion technology and safety' entry in the fusion programme.
Done at Brussels, 25 July 1985.
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COMMISSION REGULATION (EEC) No 2705/76 of 8 November 1976 amending Regulation (EEC) No 55/72 laying down conditions for inviting tenders for the disposal of fruit and vegetables withdrawn from the market
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 795/76 (2), and in particular Article 21 (4) thereof,
Whereas Commission Regulation (EEC) No 1687/76 of 30 June 1976 laying down common detailed rules for verifying the use and/or destination of products from intervention (3), as amended by Regulation (EEC) No 2054/76 (4), repeals certain provisions of Commission Regulation (EEC) No 55/72 of 10 January 1972 laying down conditions for inviting tenders for the disposal of fruit and vegetables withdrawn from the market (5), as last amended by Regulation (EEC) No 2846/72 (6);
Whereas other provisions of Regulation (EEC) No 55/72 should be adapted to the common detailed rules;
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
Article 11 of Regulation (EEC) No 55/72 shall be replaced by the following:
"The deposit provided for in Article 7 shall be released for a quantity delivered in respect of which the purchaser furnishes the appointed agency of the Member State concerned with: (a) proof that the price quoted in the invitation to tender has been paid;
(b) the proof referred to in Article 12 of Regulation (EEC) No 1687/76.
At the end of the period of validity of the invitation to tender, the abovementioned agency shall release the deposit for a quantity in respect of which the tender could not be met because of lack and products.".
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 November 1976.
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Decision of the European Parliament and of the Council
of 30 March 2004
on the mobilisation of the EU Solidarity Fund in accordance with 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
(2004/323/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) The European Union has created a European Union Solidarity Fund (the "Fund") to show solidarity with the population of regions struck by disasters.
(2) Malta submitted an application to mobilise the Fund on 10 November 2003, concerning a disaster caused by storm and flooding. Spain submitted an application on 1 October 2003 concerning a fire-related disaster. France also submitted an application on 26 January 2004 concerning a disaster caused by flooding.
(3) The Interinstitutional Agreement of 7 November 2002 allows the mobilisation of the Fund within the annual ceiling of EUR 1 billion.
(4) The cases of the storm and flooding in Malta in September 2003, the forest fire in Spain in the summer of 2003 and the flooding in southern France in December 2003 fulfil the criteria for mobilisation of the European Union Solidarity Fund,
HAVE DECIDED AS FOLLOWS:
Article 1
For the general budget of the European Union for the financial year 2004, the European Union Solidarity Fund shall be mobilised to provide the sum of EUR 21916995 in commitment appropriations.
Article 2
This Decision shall be published in the Official Journal of the European Union.
Done at Strasbourg, 30 March 2004.
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COMMISSION DECISION
of 22 July 2008
establishing a specific control and inspection programme related to the cod stocks in the Kattegat, the North Sea, the Skagerrak, the eastern Channel, the waters west of Scotland and the Irish Sea
(notified under document number C(2008) 3633)
(2008/620/EC)
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), in particular Article 34c(1) thereof,
Whereas:
(1)
Council Regulation (EC) No 423/2004 of 26 February 2004 establishing measures for the recovery of cod stocks (2), establishes measures for the recovery of cod stocks in the Kattegat, the North Sea, the Skagerrak, the eastern Channel, the waters west of Scotland and the Irish Sea and rules on monitoring, control and surveillance of cod fisheries in those areas.
(2)
Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (3) provides for control activities by the Commission and Member States and for the cooperation between Member States to ensure compliance with the rules of the Common Fisheries Policy.
(3)
To ensure the success of the recovery measures for the cod stocks in the North Sea, the Skagerrak, the Kattegat, the west of Scotland, the eastern Channel and the Irish Sea, it is necessary to establish a specific control and inspection programme directed to the fisheries exploiting those stocks.
(4)
The specific control and inspection programme should be established for a period of three years. The results obtained by the application of the specific control and inspection programme should be periodically evaluated by the Member States concerned in cooperation with the Community Fisheries Control Agency (hereinafter referred to as CFCA) set up by Council Regulation (EC) No 768/2005 (4).
(5)
Joint inspection and surveillance activities should be carried out in accordance with joint deployment plans established by the CFCA.
(6)
The measures provided for in this Decision have been established in concert with the Member States concerned.
(7)
The measures provided for in this Decision are in accordance with the opinion of the Management Committee for Fisheries and Aquaculture,
HAS ADOPTED THIS DECISION:
Article 1
Subject matter
This Decision establishes a specific control and inspection programme to ensure the harmonised implementation of the measures established by Regulation (EC) No 423/2004 for the recovery of cod stocks in the Kattegat, the North Sea, the Skagerrak, the eastern Channel, the waters west of Scotland and the Irish Sea.
Article 2
Scope
The specific control and inspection programme referred to in Article 1 shall apply for three years and shall cover:
(a)
fishing activities by vessels subject to effort limitations and associated conditions in the areas referred to in Article 1;
(b)
all related activities including the landing, weighing, marketing, transport and storage of fishery products and the recording of landing and sales.
Article 3
Definitions
For the purposes of this Decision, the definitions laid down in Article 3 of Regulation (EC) No 2371/2002 and Article 2 of Regulation (EC) No 423/2004 shall apply.
Article 4
National control and inspection programmes
1. Belgium, Denmark, Germany, France, Ireland, the Netherlands, Sweden and the United Kingdom shall establish national control and inspection programmes, in conformity with the common rules set out in Annex I, as regards the activities listed in Article 2.
2. National control and inspection programmes shall contain all the data and specifications listed in Annex II.
3. The Member States referred to in paragraph 1 shall make available to the Commission, by 15 October 2008, their national control and inspection programme and the implementation schedule. The schedule shall include details as regards human and material resources allocated and the periods and zones where they are to be deployed.
4. Thereafter, the Member States referred to in paragraph 1 shall notify an updated implementation schedule to the Commission every year and no later than 15 days before the date of commencement of its implementation.
Article 5
Cooperation between Member States
All Member States shall cooperate with the Member States referred to in Article 4(1) for the implementation of the specific control and inspection programme.
Article 6
Member State surveillance and inspection activities
1. A Member State that intends to conduct surveillance and inspect fishing vessels in the waters under the jurisdiction of another Member State, in the framework of a Joint Deployment Plan (hereinafter referred to as JDP) established in accordance with Article 12 of Regulation (EC) No 768/2005, shall notify its intentions to the contact point of the coastal Member State concerned, referred to in Article 3 of Commission Regulation (EC) No 1042/2006 (5), and to the Community Fisheries Control Agency (hereinafter referred to as CFCA). The notification shall contain the following information:
(a)
type, name and call sign of the inspection vessels and inspection aircraft on the basis of the list referred to in Article 28(4) of Regulation (EC) No 2371/2002;
(b)
the areas, as referred to in Article 1, where the surveillance and inspection will be carried out;
(c)
the duration of the surveillance and inspection activities.
2. Surveillance and inspections shall be carried out in accordance with Annex I.
Article 7
Joint inspection and surveillance activities
The Member States referred to in Article 4(1) shall undertake joint inspection and surveillance activities in accordance with the joint deployment plan established by the CFCA on the basis of Article 12 of Regulation (EC) No 768/2005.
Article 8
Information
The Member States referred to in Article 4(1) shall make available to the Commission by 31 January of each year the following information concerning the previous calendar year:
(a)
the inspection and surveillance tasks set out in Annex I;
(b)
the infringements, as referred to in Annex III, detected during that year, including for each infringement the flag of the vessel, the date and location of the inspection and the nature of the infringement; Member States shall indicate the nature of the infringement by references to the letter under which they are listed in Annex III;
(c)
the state of play concerning the follow-up of infringements, whether detected during that year or during previous years;
(d)
any relevant coordination and cooperation actions between Member States.
Article 9
Evaluation
1. Each of the Member States referred to in Article 4(1) shall, by 31 January of each year, draw up and send to the Commission and CFCA an evaluation report concerning the control and inspection activities carried out in the previous calendar year under the specific control and inspection programme laid down in this Decision and the national control and inspection programme referred to in Article 5.
2. The CFCA shall take into consideration the evaluation reports referred to in paragraph 1 in its annual assessment of the effectiveness of a Joint Deployment Plan as referred to in Article 14 of Regulation (EC) No 768/2005.
3. The Commission shall convene once a year a meeting of the Committee for Fisheries and Aquaculture to evaluate compliance with the specific control and inspection programme and the national control and inspection programmes.
Article 10
Addressees
This Decision is addressed to the Member States.
Done at Brussels, 22 July 2008.
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Commission Decision
of 20 November 2003
adjusting the weightings applicable from 1 February, 1 March, 1 April, 1 May and 1 June 2003 to the remuneration of officials of the European Communities serving in third countries
(2003/820/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Staff Regulations of officials of the European Communities and the conditions of employment of other servants of the Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/68(1), as last amended by Regulation (EC, ECSC, Euratom) No 2265/2002(2), and in particular the second paragraph of Article 13 of Annex X thereto,
Whereas:
(1) Pursuant to the first paragraph of Article 13 of Annex X to the Staff Regulations, Council Regulation (EC, ECSC, Euratom) No 1338/2003(3) laid down the weightings to be applied from 1 January 2003 to the remuneration of officials serving in third countries, payable in the currency of their country of employment.
(2) The Commission has made a number of adjustments to these weightings(4) in recent months, pursuant to the second paragraph of Article 13 of Annex X to the Staff Regulations.
(3) Some of these weightings should be adjusted with effect from 1 February, 1 March, 1 April, 1 May and 1 June 2003 given that the statistics available to the Commission show that in certain third countries the variation in the cost of living measured on the basis of the weighting and the corresponding exchange rate has exceeded 5 % since weightings were last laid down or adjusted,
HAS DECIDED AS FOLLOWS:
Sole Article
With effect from 1 February, 1 March, 1 April, 1 May and 1 June 2003 the weightings applicable to the remuneration of officials serving in third countries payable in the currency of their country of employment are adjusted as shown in the Annex.
The exchange rates for the calculation of such remuneration shall be those used for implementation of the general budget of the European Communities for the month preceding the dates referred to in the first paragraph.
Done at Brussels, 20 November 2003.
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COMMISSION REGULATION (EC) No 310/96 of 21 February 1996 amending the Annex to Regulation (EEC) No 3846/87 establishing an agricultural product nomenclature for export refunds
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EEC) No 3846/87 of 17 December 1987 establishing an agricultural product nomenclature for export refunds (1), as last amended by Regulation (EC) No 2996/95 (2), and in particular Article 3, last subparagraph, thereof,
Whereas Regulation (EEC) No 3846/87 provides for the publication of the full version of the refund nomenclature to be used from 1 January each year as it follows from the regulatory provisions on export arrangements for agricultural products (3);
Whereas account must be taken of amendments to the combined nomenclature introduced by Commission Regulation (EC) No 2448/95 of 10 October 1995 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (4) applicable from 1 January 1996,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EEC) No 3846/87 is hereby replaced by the Annex hereto.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal on the European Communities.
It shall apply with effect from 1 January 1996.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 February 1996.
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COMMISSION REGULATION (EC) No 2325/97 of 24 November 1997 supplementing the Annex to Regulation (EC) No 1107/96 on the registration of geographical indications and designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92 (Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2081/92 of 14 July 1992 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (1), as last amended by Commission Regulation (EC) No 1068/97 (2), and in particular Article 17 (2) thereof,
Whereas, for certain names notified by the Member States pursuant to Article 17 of Regulation (EEC) No 2081/92, additional information was requested in order to ensure that they complied with Articles 2 and 4 of that Regulation; whereas that additional information shows that the names comply with the said Articles; whereas they should therefore be registered and added to the Annex to Commission Regulation (EC) No 1107/96 (3), as last amended by Regulation (EC) No 1065/97 (4);
Whereas, following the accession of three new Member States, the six-month period provided for in Article 17 of Regulation (EEC) No 2081/92 is to begin on the date of their accession; whereas some of the names notified by those Member States comply with Articles 2 and 4 of that Regulation and should therefore be registered;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Regulatory Committee on Geographical Indications and Designations of Origin,
HAS ADOPTED THIS REGULATION:
Article 1
The names in the Annex to this Regulation are hereby added to the Annex to Regulation (EC) No 1107/96.
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, 24 November 1997.
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COMMISSION REGULATION (EC) No 1433/2007
of 5 December 2007
amending Regulation (EC) No 1623/2000 laying down detailed rules for implementing Council Regulation (EC) No 1493/1999 on the common organisation of the market in wine with regard to market mechanisms
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) thereof,
Whereas:
(1)
Article 31(1) of Regulation (EC) No 1493/1999 stipulates that alcohol taken over by the intervention agencies is disposed of either by public sale or by tendering procedures.
(2)
Tendering procedures for alcohol are the only sales from intervention in the agricultural sector for which the Commission manages the decision on and opens each sale of this product. In the interests of simplifying legislation and with a view to harmonising measures to manage agricultural markets under the single common organisation of the market, a standing invitation to tender for the sale of alcohol should be opened by the Commission as well as partial invitations to tender opened by the Member States.
(3)
To ensure that the information on the partial invitations to tender in the Member States is accessible by all approved undertakings in the Community, that information should be published in electronic form.
(4)
To prevent all the alcohol in stock from being sold all at once or for the benefit of just one undertaking, the maximum quantity that may be put up for sale under each partial invitation to tender should be limited.
(5)
To ensure that alcohol is disposed of regularly and optimally, and taking account of the slack period during the summer and at Christmas, a deadline for the partial invitations to tender should be laid down once a month, except in July and December.
(6)
The various stages and characteristics of the partial invitations to tender should be specified.
(7)
Recent experience has shown that plans of the plants where the alcohol is processed into absolute alcohol are not essential for approval of undertakings that may participate in the sale of alcohol for use in the form of bioethanol in the Community. That requirement should therefore be removed from the list of documents to be provided for approval.
(8)
To protect the interests of tendering undertakings during the partial invitations to tender, provision should be laid down to limit the physical movement of alcohol put up for sale between the time when the notice for the partial invitation to tender is published and its removal by the undertaking awarded the contract.
(9)
Commission Regulation (EC) No 1623/2000 (2) should therefore be amended accordingly.
(10)
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 (EC) No 1623/2000 is hereby amended as follows:
1.
Title III, Chapter IV is amended as follows:
(a)
in subsection III, Articles 92 to 94(d) shall be replaced by the following:
‘Article 92
Standing invitation to tender
1. A standing invitation to tender for alcohol is hereby issued for exclusive use in the fuel sector in the form of bioethanol in the Community.
2. A notice of a standing invitation to tender shall be published in the Official Journal of the European Union.
Article 92a
Partial invitations to tender
1. Intervention agencies shall organise partial tendering rounds during the term of validity of the standing invitation to tender. To that end, intervention agencies shall publish notices of invitation to tender and ensure that they are properly publicised, in particular by displaying them at their head offices and on their website or the website of the competent ministry.
2. The notice of invitation to tender shall indicate in particular the time limit and place for the submission of tenders. Each partial invitation to tender shall cover a maximum quantity of 100 000 hl.
3. The time limit for the submission of tenders for each partial invitation to tender shall be the last working day of each month at 13.00 Brussels time. No tenders shall be submitted in July and December.
4. The first partial invitation to tender shall take place in the month following that in which the standing invitation to tender is published.
5. Each Member State whose stocks of Community wine alcohol reach or exceed 100 000 hl shall open a partial invitation to tender within the meaning of this Article.
Article 93
Notices of partial invitations to tender
For the quantities of alcohol which they hold, intervention agencies shall indicate, in addition to the information referred to in Article 92a(2):
(a)
the special rules applicable to the tendering procedure and the location of the stores in which the alcohol to be sold is stored;
(b)
the quantity of alcohol, expressed in hectolitres of alcohol at 100 % vol., covered by the partial tendering procedure;
(c)
the lots;
(d)
the payment terms;
(e)
the formalities for obtaining samples;
(f)
the amount of the tendering security referred to in the first subparagraph of Article 94(1) and the performance guarantee referred to in Article 94c(3).
Article 93a
Approval of undertakings
1. The alcohol shall be awarded to undertakings established in the Community and must be used for the purposes laid down in Article 92.
2. For the purpose of the award referred to in paragraph 1, Member States shall approve undertakings deemed eligible by them which have submitted an application accompanied by the following documents:
(a)
a declaration by the undertaking stating that it is capable of using at least 50 000 hl of alcohol a year;
(b)
the location of the undertaking’s administrative offices;
(c)
the names and addresses of the plants where the alcohol is processed into absolute alcohol, and an indication of their annual processing capacity;
(d)
a copy of the permit granted by the national authorities of the Member State concerned to operate the plants;
(e)
an assurance by the undertaking that all final purchasers of the alcohol will only use it for the production of fuel in the Community in the form of bioethanol.
3. Approval by a Member State shall be valid throughout the Community.
4. Undertakings approved by 9 December 2007 shall be considered to have been approved for the purposes of this Regulation.
5. Member States shall inform the Commission without delay of any new approval or withdrawal of approval, indicating the exact date of the decision.
6. After each amendment, the Commission shall make an updated list of the approved undertakings available to the Member States without delay.
Article 93b
Rule applicable to alcohol
Intervention agencies shall take the necessary steps to ensure that the alcohol in the vats to which the sale relates is not physically moved until a removal order covering it has been issued, except in the case of a substitution decided by the intervention agency for logistical reasons, the conditions for which shall be clearly set out in the notice of partial invitation to tender.
Article 93c
Submission of tenders
1. Undertakings approved by the date of publication of the notice of partial invitation to tender may submit tenders in writing either by delivery by hand to the intervention agency holding the alcohol against proof of receipt, or by any other written means of telecommunication against proof of receipt.
2. Tenderers may submit only one tender in response to a lot. If a tenderer submits more than one, none of those tenders shall be admissible.
Article 94
Rules applicable to tenders
1. To be eligible for consideration, tenders, when submitted, must be accompanied by proof that a tendering security of EUR 4 per hectolitre of alcohol at 100 % vol. has been lodged with the intervention agency holding the alcohol concerned.
To that end, the intervention agencies concerned shall immediately issue tenderers with a statement certifying that the tendering security has been lodged for the quantities for which each agency is responsible.
2. The primary requirements within the meaning of Article 20 of Regulation (EEC) No 2220/85 shall be that tenders are not withdrawn after the closing date for their submission, that a performance guarantee is lodged and that the price is paid.
Article 94a
Notifications relating to tenders
1. On the day following the closing date referred to in Article 92a(3), intervention agencies shall inform the Commission of the lots and the prices offered by tenderers and the quantity of alcohol making up each lot. Intervention agencies shall also indicate whether any tenders have been rejected and, if so, the reasons for such rejection.
2. Intervention agencies shall send this information to the Commission in the form of an anonymous list.
3. If no tenders have been submitted, intervention agencies shall communicate this to the Commission within the same time limit.
Article 94b
Award of contracts
1. On the basis of the tenders submitted, the Commission, acting in accordance with the procedure laid down in Article 75 of Regulation (EC) No 1493/1999, shall decide whether or not to award contracts.
2. Should a contract be awarded, the Commission shall accept the most favourable tender per lot and shall set the sale price for each lot. If for the same lot several tenders quote the same price, the intervention body shall allocate the quantity concerned either by sharing the quantity between these tenderers, with their agreement, or by drawing lots.
3. The Commission shall notify the decisions taken under this Article to those Member States and intervention agencies holding alcohol to which tenders have been submitted.
4. The Commission shall publish the results of the tendering procedure in a simplified form in the Official Journal of the European Union.
Article 94c
Statement of award
1. The intervention agency shall inform tenderers in writing, without delay against a receipt, of the decision taken on their tenders.
2. Within two weeks of the date of receipt of the information notice referred to in paragraph 1, the intervention agency shall issue each successful tenderer with a statement of award certifying that their tender has been accepted.
3. Within two weeks of the date of receipt of the information notice referred to in paragraph 1, each successful tenderer shall provide proof that they have lodged with the intervention agency concerned a performance guarantee of EUR 40 per hectolitre of alcohol at 100 % vol. to ensure that all the alcohol awarded is used for the purposes laid down in Article 92.
Article 94ca
Notifying the Commission
Within five working days of receipt of the decision referred to in Article 94b(3), the intervention agency shall inform the Commission of the name and address of the tenderer for each tender submitted.
Article 94d
Removal of the alcohol
1. The intervention agency holding the alcohol and the successful tenderer shall agree on a provisional timetable for the staggered removal of the alcohol.
2. The alcohol may be removed on presentation of a removal order issued by the intervention agency once the quantity to be removed has been paid for. That quantity shall be determined to the nearest hectolitre of alcohol at 100 % vol.
Each removal order shall cover a quantity of at least 1 500 hectolitres, except in the case of the last removal in each Member State.
The removal order shall state the date by which the alcohol must be physically removed from the warehouse of the intervention agency concerned. The deadline for removal shall not be more than eight days from the day following the date of issue of the removal order. However, where the removal order covers a quantity in excess of 25 000 hectolitres, that deadline may be more than eight days, but not more than 15 days.
3. Ownership of the alcohol covered by a removal order shall be transferred on the date indicated in the order, which may not be after its date of validity, and the quantities concerned shall be deemed to have been removed on that date. From then on, the purchaser shall be responsible for any theft, loss or destruction and for the storage costs of any alcohol awaiting removal.
4. Physical removal of the alcohol must be completed six months after the date of receipt of the notification of acceptance referred to in Article 94c(1).
5. The alcohol must be fully used within two years from the date of first removal.
Article 94e
Release of the tendering security
Where a tender has been unsuccessful, the security provided for in Article 94(1) shall be released immediately.’
(b)
in subsection IV, Articles 95 and 96 shall be replaced by the following:
‘Article 95
Rules applicable to public sales of alcohol
1. With a view to drawing up the rules for opening a public sale of alcohol, the Commission shall request each Member State concerned to inform it of:
(a)
the quantity of alcohol, expressed in hectolitres of alcohol at 100 % vol., that may be offered for sale;
(b)
the type of alcohol concerned;
(c)
the quality of the lots of alcohol, laying down maximum and minimum values for the characteristics referred to in Article 96(4)(d)(i) and (ii) of this Regulation.
No more than 12 days after receiving this request, the Member States concerned shall inform the Commission of the exact location and references of the various vats of alcohol meeting the quality requirements and containing a total quantity of alcohol not less than that referred to in (a) in the first subparagraph of this paragraph.
2. Once the information referred to in the second subparagraph of paragraph 1 has been forwarded to the Commission, the alcohol in the vats concerned may not be moved until a removal order covering it has been issued.
This prohibition shall not relate to alcohol in vats not covered by the notices of public sale of alcohol concerned or not specified in the Commission decision referred to in Articles 83 to 93.
For logistical reasons in particular, the intervention agencies holding the vats of alcohol specified in the notification from the Member States referred to in paragraph 1 may replace the alcohol concerned with other alcohol of the same type or mix it with other alcohol delivered to the intervention agency until a removal order is issued for the alcohol concerned. The intervention agencies of the Member States shall notify the Commission that the alcohol has been replaced.
Article 96
Rules applicable to lots
1. The alcohol shall be sold in lots.
2. A lot shall consist of a quantity of alcohol of sufficiently uniform quality, which may be contained in several vats and kept at several locations.
3. Each lot shall be numbered. The letters “EC” shall precede the numbers of the lots.
4. Each lot shall be described. The following information at least shall be given:
(a)
the location of the lot, including a reference identifying each vat containing the alcohol, and the quantity of alcohol in each vat;
(b)
the total quantity, expressed in hectolitres of alcohol at 100 % vol. The quantity may vary by up to 1 % and may not exceed 50 000 hectolitres;
(c)
the minimum alcoholic strength of the alcohol in each vat, expressed in % vol.;
(d)
if possible, the quality of the lot, specifying upper and lower limits for the following:
(i)
the acidity, expressed in grams of acetic acid per hectolitre of alcohol at 100 % vol.;
(ii)
the methanol content, expressed in grams per hectolitre of alcohol at 100 % vol.;
(e)
reference to the intervention measure which gave rise to the production of the alcohol, specifying the relevant Article of Regulation (EC) No 1493/1999.’
2.
Article 101(4) is replaced by the following:
‘4. Without prejudice to paragraph 1, when the alcohol is exported to third countries for end use in the motor fuel sector only, the checks on its actual use shall be carried out up to the moment when the alcohol is mixed with a denaturing agent in the country of destination.
Where the alcohol is disposed of for use as bioethanol in the Community, those checks shall be carried out up to the moment when the alcohol is delivered to an approved firm as indicated in Article 93a.
In the cases provided for in the first and second subparagraphs, the alcohol concerned must remain under the supervision of an official body which guarantees its use in the motor fuel sector under special tax arrangements which require that enduse.’
3.
Article 102 shall be replaced as follows:
‘Article 102
Use of surveillance firms
The partial notice of invitation to tender referred to in Article 92a(1) may stipulate that an independent surveillance firm is to be used to check on the proper conduct of the tendering procedure, particularly the final destination and/or end use of the alcohol. The cost of such services shall be borne by the successful tenderer, as shall the cost of analysis and verification pursuant to Article 99 of 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, 5 December 2007.
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COMMISSION REGULATION (EC) No 1156/2006
of 28 July 2006
establishing for 2006 budgetary ceilings for partial or optional implementation of the Single Payment Scheme, annual financial envelopes for the Single Area Payment Scheme and maximum amounts for granting separate sugar payments provided for under Council Regulation (EC) No 1782/2003, and amending that Regulation
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (1), and in particular Articles 41(1) and (1)(a), 64(2), 70(2), 71(2), 110i(3) and (4), 110l(1), 143b(3), 145(i), and 155,
Whereas:
(1)
For the Member States making use of the option provided for in Article 62 of Regulation (EC) No 1782/2003, the national ceilings set in Annex VIII to that Regulation should be revised on the basis of the information communicated under Article 145(i) thereof.
(2)
The Community’s financial contribution towards support programmes of specific measures to assist livestock farming in outermost regions is provided for as from 2006 in Article 23 of Council Regulation (EC) No 247/2006 of 30 January 2006 laying down specific measures for agriculture in the outermost regions of the Union (2). The Member States concerned should in consequence deduct from the national ceilings set in Annex VIII to Regulation (EC) No 1782/2003 the amount of the contribution corresponding to those specific measures initially included in Annex VIII.
(3)
The national ceilings set under point K(2) of Annex VII to Regulation (EC) No 1782/2003 should be adjusted to take into account the most recent data on chicory and the national ceilings set in Annex VIII to that Regulation should be amended accordingly, without however changing the overall amounts.
(4)
The ceilings set in point K(2) of Annex VII to Regulation (EC) No 1782/2003 should also be amended to take into account the quantities of quotas sugar and quota inulin syrup which were produced in one Member State from beet and chicory grown in another Member State during the 2000/01 to 2005/06 marketing years. The national ceilings set in Annexes VIII and VIIIa to that Regulation should be amended accordingly.
(5)
For Member States implementing the Single Payment Scheme provided for in Title III of Regulation (EC) No 1782/2003 in 2006, the budgetary ceilings for each of the payments referred to in Articles 66 to 69 of that Regulation should be fixed for 2006 under the conditions laid down in Section 2 of Title III.
(6)
For the Member States making use, in 2006, of the option provided for in Article 70 of Regulation (EC) No 1782/2003, the budgetary ceilings applying to the direct payments excluded from the Single Payment Scheme should be fixed for 2006.
(7)
For the Member States making use of the transitional period provided for in Article 71 of Regulation (EC) No 1782/2003, the budgetary ceilings applying to the direct payments listed in Annex VI to that Regulation should be fixed for 2006.
(8)
The maximum amount of aid for olive groves referred to in Article 110i(3) of Regulation (EC) No 1782/2003 should be adjusted according to the value of the coefficient referred to in Annex VII(H) and the amount withheld under Article 110i(4), notified by the Member States concerned, and the national ceilings set in Annex VIII should be adjusted accordingly. No amount should be fixed for Member States that have decided to set at 1 the coefficient provided for under Annex VII(H).
(9)
The maximum amount of Community contribution to the financing of work programmes drawn up by certified organisations of operators in the olive oil sector should be set, according to the coefficient applied to the amount withheld under Article 110(i)(4) of Regulation (EC) No 1782/2003, notified by the Member States concerned.
(10)
The maximum amount of aid for tobacco referred to in Article 110l(1) of Regulation (EC) No 1782/2003 should be adjusted according to the value of the coefficient referred to in Annex VII(I), notified by the Member States concerned, and the national ceilings set in Annex VIII to that Regulation should be adjusted accordingly. No amount should be fixed for Member States that have decided to set at 1 the coefficient provided for under Annex VII(I).
(11)
For the sake of clarity, it is appropriate to publish the budgetary ceilings for the Single Payment Scheme for 2006 after deduction, from the revised ceilings of Annex VIII to Regulation (EC) No 1782/2003, of the ceilings established for the payments referred to in Articles 66 to 70 of that Regulation.
(12)
The maximum amount of funds available to Member States having joined the European Union in 2004 and applying the Single Area Payment Scheme for granting separate sugar payments in 2006 under Article 143ba of Regulation (EC) No 1782/2003 should be established on the basis of their notifications.
(13)
For Member States having joined the European Union in 2004 and implementing the Single Area Payment Scheme provided for in Title IVa of Regulation (EC) No 1782/2003 in 2006, the annual financial envelopes for 2006 should be fixed in accordance with Article 143b(3) of that Regulation.
(14)
Regulation (EC) No 1782/2003 should be amended accordingly.
(15)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Direct Payments,
HAS ADOPTED THIS REGULATION:
Article 1
1. The budgetary ceilings for 2006 referred to in Articles 66 to 69 of Regulation (EC) No 1782/2003 are set out in Annex I to this Regulation.
2. The budgetary ceilings for 2006 referred to in Article 70(2) of Regulation (EC) No 1782/2003 are set out in Annex II to this Regulation.
3. The budgetary ceilings for 2006 referred to in Article 71(2) of Regulation (EC) No 1782/2003 are set out in Annex III to this Regulation.
4. The budgetary ceilings for the single payment scheme for 2006 referred to in Title III of Regulation (EC) No 1782/2003 are set out in Annex IV to this Regulation.
5. The annual financial envelopes for 2006 referred to in Article 143b(3) of Regulation (EC) No 1782/2003 are set out in Annex V to this Regulation.
6. The maximum amounts of funding available to the Czech Republic, Latvia, Lithuania, Hungary, Poland and Slovakia for granting separate sugar payment in 2006, as referred to in Article 143ba(4) of Regulation (EC) No 1782/2003, are set out in Annex VI to this Regulation.
Article 2
The maximum Community contribution to financing the work programmes drawn up by certified operators in the olive oil sector under Article 110i(4) of Regulation (EC) No 1782/2003 shall be as follows:
(in EUR million)
Greece
11,098
France
0,576
Italy
35,991
Article 3
Regulation (EC) No 1782/2003 is hereby amended as follows:
1.
in Article 110i(3), first subparagraph, the table is replaced by the following table:
(in EUR million)
Spain
103,14
Cyprus
2,93
Malta
0,07
Slovenia
0,17
2.
In Article 110l(1) the table is replaced by the following table:
(in EUR million)
2006-2009
Germany
21,287
Spain
70,599
France
48,217
Italy (except Apulia)
189,366
Portugal
8,468
3.
In Annex VII, point K(2), table 1 is replaced by the table contained in Annex VII to this Regulation.
4.
Annex VIII is replaced by the text contained in Annex VIII to this Regulation.
5.
Annex VIIIa is replaced by the text contained in Annex IX to this Regulation.
Article 4
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 July 2006.
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Commission Regulation (EC) No 2123/2002
of 29 November 2002
fixing the refunds applicable to cereal and rice sector products supplied as Community and national food aid
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 Commission Regulation (EC) No 1666/2000(2), and in particular the third subparagraph of Article 13(2) 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 Commission Regulation (EC) No 411/2002(4), and in particular Article 13(3) thereof,
Whereas:
(1) Article 2 of Council Regulation (EEC) No 2681/74 of 21 October 1974 on Community financing of expenditure incurred in respect of the supply of agricultural products as food aid(5) lays down that the portion of the expenditure corresponding to the export refunds on the products in question fixed under Community rules is to be charged to the European Agricultural Guidance and Guarantee Fund, Guarantee Section.
(2) In order to make it easier to draw up and manage the budget for Community food aid actions and to enable the Member States to know the extent of Community participation in the financing of national food aid actions, the level of the refunds granted for these actions should be determined.
(3) The general and implementing rules provided for in Article 13 of Regulation (EEC) No 1766/92 and in Article 13 of Regulation (EC) No 3072/95 on export refunds are applicable mutatis mutandis to the abovementioned operations.
(4) The specific criteria to be used for calculating the export refund on rice are set out in Article 13 of Regulation (EC) No 3072/95.
(5) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
For Community and national food aid operations under international agreements or other supplementary programmes, and other Community free supply measures, the refunds applicable to cereals and rice sector products shall be as set out in the Annex.
Article 2
This Regulation shall enter into force on 1 December 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 November 2002.
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COUNCIL REGULATION (EC) No 680/2009
of 27 July 2009
amending Regulation (EC) No 423/2007 concerning restrictive measures against Iran
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 60 and 301 thereof,
Having regard to Council Common Position 2008/652/CFSP of 7 August 2008 amending Common Position 2007/140/CFSP concerning restrictive measures against Iran (1),
Having regard to the proposal from the Commission,
Whereas:
(1)
Council Regulation (EC) No 1110/2008 (2) amending Regulation (EC) No 423/2007 (3) imposed additional restrictive measures pursuant to Common Position 2008/652/CFSP, and in particular a prior notification obligation in respect of certain shipments to and from Iran.
(2)
For technical reasons, provision was made for derogations from the rules for the implementation of that prior notification obligation during a transitional period. As the complexity of the implementing rules for this measure has resulted in unforeseen delays in its implementation, the transitional period should be extended until 31 December 2010.
(3)
Regulation (EC) No 423/2007 should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
The fourth and fifth paragraphs of Article 4a of Regulation (EC) No 423/2007 are hereby replaced by the following:
‘Until 31 December 2010, the entry and exit summary declarations and the required additional elements referred to in this Article may be submitted in written form using commercial, port or transport information, provided that they contain the necessary particulars.
As from 1 January 2011, the required additional elements referred to in this Article shall be submitted either in written form or using the entry and exit summary declarations as appropriate.’
Article 2
This Regulation shall enter into force on 1 July 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 July 2009.
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Commission Decision
of 30 May 2002
concerning the technical specification for interoperability relating to the rolling stock subsystem of the trans-European high-speed rail system referred to in Article 6(1) of Directive 96/48/EC
(notified under document number C(2002) 1952)
(Text with EEA relevance)
(2002/735/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 96/48/EC of 23 July 1996 on the interoperability of the trans-European high-speed rail network(1), and in particular Article 6(1) thereof,
Whereas:
(1) In accordance with Article 2(c) of Directive 96/48/EC, the trans-European high-speed rail system is subdivided into structural or functional subsystems. These subsystems are described in Annex II to the Directive.
(2) In accordance with Article 5(1) of the Directive, each of the subsystems shall be covered by a technical specification for interoperability (TSI).
(3) In accordance with Article 6(1) of the Directive, draft TSIs shall be drawn up by the joint representative body.
(4) The Committee set up under Article 21 of Directive 96/48/EC has appointed the European Association for Railway Interoperability (AEIF) as the joint representative body in accordance with Article 2(h) of the Directive.
(5) The AEIF has been given a mandate to draw up a draft TSI for the rolling stock subsystem in accordance with Article 6(1) of the Directive. This mandate has been established in accordance with the procedure laid down in Article 21(2) of the Directive.
(6) The AEIF has drawn up the draft TSI, together with an introductory report containing a cost-benefit analysis as provided for in Article 6(3) of the Directive.
(7) The draft TSI has been examined by the representatives of the Member States, in the framework of the Committee set up by the Directive, in the light of the introductory report.
(8) As specified in Article 1 of Directive 96/48/EC, the conditions for achieving interoperability of the trans-European high-speed rail system concern the design, construction, upgrading and operation of the infrastructures and rolling stock contributing to the functioning of the system to be put into service after the date of entry into force of the Directive. With regard to the infrastructures and rolling stock already in service at the time of entry into force of this TSI, the TSI should be applied from the time when work is envisaged on these infrastructures. However, the degree to which the TSI is applied will vary according to the scope and extent of the works foreseen and the costs and the benefits generated by the intended applications. In order for such partial works to concur in achieving full interoperability, they need to be underpinned by a coherent implementation strategy. In this context, a distinction should be made between upgrading, renewal and maintenance-related replacement.
(9) It is recognised that Directive 96/48/EC and the TSIs do not apply to renewals or maintenance-related replacement. It is desirable however that the TSIs should apply to renewals - as will be the case for the TSIs for the conventional rail system under Directive 2001/16/EC. In the absence of a mandatory requirement and taking into account the extent of the renewal work, Member States are encouraged, where they are able to do so, to apply the TSIs to renewals and maintenance-related replacement.
(10) In its current version, the TSI, which is the subject of this Decision, covers features specific to the high-speed system. As a general rule, it does not address the common aspects of the high-speed and conventional rail system. The interoperability of the latter is the subject of another Directive(2). Given that verification of interoperability has to be established by reference to the TSIs, in accordance with Article 16(2) of Directive 96/48/EC, it is necessary, during the transition period between the publication of this Decision and the publication of the Decisions adopting the "conventional rail" TSIs, to lay down the conditions to be complied with in addition to the TSI attached. For these reasons it is necessary that each Member State informs the other Member States and the Commission of the relevant national technical rules in use for achieving interoperability and meeting the essential requirements of Directive 96/48/EC. In addition, those rules being national, it is necessary that each Member State informs the other Member States and the Commission of the bodies it appoints for carrying out the procedure for the assessment of conformity or suitability for use as well as the checking procedure in use for verifying the interoperability of subsystems within the meaning of Article 16(2) of Directive 96/48/EC. Member States shall apply, as far as possible, the principles and criteria provided for in Directive 96/48/EC for the implementation of Article 16(2) in the case of those national rules. As to the bodies in charge of those procedures, Member States will make use, as far as possible, of bodies notified under Article 20 of Directive 96/48/EC. The Commission will carry out an analysis of this information (national rules, procedures, bodies in charge of implementing procedures, duration of these procedures) and, where appropriate, will discuss with the Committee the necessity of any measure to be taken.
(11) The TSI, which is the subject of this Decision, does not impose the use of specific technologies or technical solutions except where this is strictly necessary for the interoperability of the trans-European high-speed rail network.
(12) The TSI, which is the subject of this Decision, is based on best available expert knowledge at the time of preparation of the corresponding draft. Developments in technology or social requirements may make it necessary to amend or supplement this TSI. Where appropriate, a review or updating procedure will be initiated in accordance with Article 6(2) of Directive 96/48/EC.
(13) In some cases, the TSI, which is the subject of this Decision, allows a choice between different solutions, making it possible to apply definitive or transitional interoperable solutions that are compatible with the existing situation. In addition, Directive 96/48/EC provides for special implementing provisions in certain specific cases. Furthermore, in the cases provided for in Article 7 of the Directive Member States must be allowed not to apply certain technical specifications. It is therefore necessary that the Member States ensure that a rolling stock register is published and updated each year. This register will set out the main characteristics of the national rolling stock (e.g. the basic parameters) and their concordance with the characteristics prescribed by the applicable TSIs. To this end, the TSI, which is the subject of this Decision, indicates precisely which information must appear in the register.
(14) The application of the TSI which is the subject of this Decision must take into account specific criteria relating to technical and operational compatibility between the infrastructures and the rolling stock to be placed in service and the network into which they are to be integrated. These compatibility requirements entail a complex technical and economical analysis that is to be done on a case by case basis. The analysis should take into account:
- the interfaces between the different subsystems referred to in Directive 96/48/EC,
- the different categories of lines and rolling stock referred to in that Directive and
- the technical and operational environments of the existing network.
That is why it is essential to establish a strategy for the implementation of the TSI which is the subject of this Decision, which should indicate technical stages to move from the present network conditions to a situation where the network is interoperable.
(15) The provisions of this Decision are in conformity with the opinion of the Committee set up by Directive 96/48/EC,
HAS ADOPTED THIS DECISION:
Article 1
The TSI relating to the "rolling stock" subsystem of the trans-European high-speed rail system referred to in Article 6(1) of Directive 96/48/EC is hereby adopted by the Commission. The TSI is set out in the Annex to this Decision. The TSI is fully applicable to the rolling stock of the trans-European high-speed rail system as defined in Annex I to Directive 96/48/EC, taking into account Article 2 and Article 3 hereunder.
Article 2
1. With regard to the aspects that are common to the high-speed and the conventional rail systems, but not covered in the attached TSI, the conditions to be complied with for the verification of the interoperability within the meaning of Article 16(2) of Directive 96/48/EC are the applicable technical rules in use in the Member State which authorises the placing in service of the subsystem concerned by this Decision.
2. Each Member State shall notify to the other Member States and to the Commission within six months of the notification of this Decision:
- the list of the applicable technical rules mentioned under Article 2(1),
- the conformity assessment and checking procedures to be applied with regard to the application of these rules,
- the bodies it appoints for carrying out those conformity assessment and checking procedures.
Article 3
1. For the purposes of this Article:
- "upgrading" means major work to modify a subsystem or part of a subsystem which changes the performance of the subsystem,
- "renewal" means major work to replace a subsystem or part of a subsystem which does not change the performance of the subsystem,
- "maintenance-related replacement" means replacement of components by parts of identical function and performances in the context of predictive or corrective maintenance.
2. In the case of upgrading, the contracting entity will submit a dossier describing the project to the Member State concerned. The Member State will examine the dossier and, taking into account the implementation strategy in Chapter 7 of the attached TSI, will (where appropriate) decide whether the scale of the work requires the need for a new authorisation for placing in service under Article 14 of Directive 96/48/EC. Such authorisation for placing in service is necessary whenever the level of safety may objectively be affected by the work envisaged.
Where a new authorisation for placing in service under Article 14 of Directive 96/48/EC is necessary, the Member State decides whether:
(a) the project includes full application of the TSI, in which case the subsystem will be subject to the EC verification procedure in Directive 96/48/EC; or
(b) full application of the TSI is not yet possible. In this case the subsystem will not be in full conformity with the TSI and the EC verification procedure in Directive 96/48/EC shall be applied only in respect of the parts of the TSI applied.
In these two cases the Member State will inform the Committee set up pursuant to Directive 96/48/EC of the relevant dossier including the parts of TSI being applied and the degree of interoperability being achieved.
3. In the case of renewal and maintenance-related replacement, application of the attached TSI is voluntary.
Article 4
The relevant parts of Commission recommendation 2001/290/EC(3) on the basic parameters of the trans-European high-speed rail system have no longer effect from the date of entry into force of the attached TSI.
Article 5
The attached TSI shall enter into force six months after notification of this Decision.
Article 6
This Decision is addressed to the Member States.
Done at Brussels, 30 May 2002.
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COMMISSION DECISION of 17 March 1999 under the provisions of Council Regulation (EC) No 3286/94 concerning the Brazilian non-automatic import licensing system and its operation (notified under document number C(1999) 607) (1999/234/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community's rights under international trade rules, in particular those established under the auspices of the World Trade Organisation (WTO) (1), as amended by Regulation (EC) No 356/95 (2), and in particular Articles 13 and 14 thereof,
After consulting the Advisory Committee,
Whereas:
A. PROCEDURE
(1) On 12 January 1998 the Commission received a complaint pursuant to Article 4 of Council Regulation (EC) No 3286/94 (herafter the 'Regulation`). The complaint was lodged by Febeltex (Fédération belge du textile - Belgian Textile Federation).
(2) The complainant alleged that the Brazilian non-automatic import licensing and in particular its enforcement through the imposition of compulsory payment terms and compulsory minimum prices are inconsistent with several provisions of the Agreement establishing the World Trade Organisation (hereafter 'the WTO Agreement`) and its annexes. On that basis the complainant asked the Commission to take the necessary actions to convince Brazil to repeal these measures.
(3) The complaint contained sufficient prima facie evidence to justify the initiation of a Community examination procedure pursuant to Article 8 of the Regulation. Consequently, such procedure was initiated on 27 February 1998 (3).
(4) Following the initiation of the examination procedure the Commission conducted an in-depth legal and factual investigation into the Brazilian import licensing system as applied to textile products. Based on the findings of this investigation the Commission reached the conclusions which are indicated below.
B. FINDINGS REGARDING THE EXISTENCE OF AN OBSTACLE TO TRADE
(5) The investigation established that the Brazilian system is a licensing system within the meaning of Article 3(1) of the WTO Agreement on import licensing procedures (ILP) and should therefore comply with the rules laid down by this Agreement as well as by GATT 1994.
(6) The relevant Brazilian legislation concerning the non-automatic import licensing system is composed of:
- Decreto 660, of 25 September 1992 (which established the Sistema Integrado de Comércio Exterior, Siscomex),
- Portaria Interministerial 291 (Ministry of the Treasury/Ministry of Industry and Trade), of 12 December 1996 (concerning the processing of import operations by means of the Siscomex),
- Portaria Secex 21, of 12 December 1996 (concerning the implementation of import operations by means of the Siscomex, including price control) and
- Comunicados Decex listing the goods subject to non-automatic import licensing, which have been consolidated by Comunicado Decex 37 of 17 December 1997.
However, the Brazilian system is very flexible: new products can be added to the list of those for which a non-automatic import license is required by simple decision of the Ministry of Industry, Trade and Tourism.
(7) The Brazilian licensing system is operated via a computerised instrument called Siscomex. The granting of import licenses for imports of textile products originating in the Community is directly linked to a set of compulsory minimum prices and compulsory payment terms. Should these date of an import declaration not be in accordance with those decided and included by the Brazilian authorities in the Siscomex, applications for import licences are not processed and the importer is asked to contact the local agency of the Foreign Trade Department of the Ministry of Industry, Trade and Tourism (Decex).
(8) The Brazilian legislation introducing this system does not include any indication of the measure being implemented through the licensing procedure. The Commission services have found the existence of internal administrative rules or guidelines concerning compulsory payment terms and minimum import prices that are used in the administration of Brazil's import licensing system. Such rules are not published. As a consequence, governments and traders cannot become acquainted to them. Furthermore, there is no possibility of appeal against such unofficial regulations.
(9) When Siscomex does not process import licence applications which do not comply with the requirements on payment terms and minimum prices, no formal decision is taken on the importer's application. It remains indefinitely pending.
(10) The Brazilian system does not appear to serve to the implementation of any GATT compatible measure, its sole function being the application and administration of import procedures as trade policy tool in order to restrict flows of imports of textile products into Brazil. The examination also demonstrated that this system allows Brazilian authorities to decide in a discretionary and arbitrary manner on the basis of unofficial and not published grounds, the non-granting of import licences. By imposing compulsory payment terms and minimum prices as conditions for the issuance of the licence, Brazil has substantially restricted imports of certain textile products originating in the Community and has discouraged a large number of possible clients for Community producers.
(11) Brazil has not yet notified part of the relevant legislation (Comunicado Decex 37, of 17 December 1997); the remaining part has been notified with a delay of more than one year, only after the initiation by the Commission of the present examination under the Regulation and in this notification some essential information was omitted (for example: the list of products subject to licensing procedures).
(12) Under these circumstances the Commission considers that the complainant's allegations are well founded and that the Brazilian practices constitute an obstacle to trade within the meaning of Article 2(1) of the Regulation, as they are contrary to the following provisions:
- Article X.1 and XI.1 of the GATT,
- Article 1(3), 3(2), 3(5)(f) and 5 of the WTO Agreement on import licensing procedures.
(13) The Commission nonetheless considers that reference to the above legal bases does not rule out recourse to any other pertinent provision of the WTO Agreement and of the Agreements annexed to it, which could be of use in procedures before the WTO.
C. FINDINGS REGARDING ADVERSE TRADE EFFECTS
(14) The Commission investigation highlighted the enormous potentiality of the Brazilian market for the highly competitive products exported by Community producers. In this regard, the main findings on the adverse trade effects caused by the challenged practices indicate that Brazil's non-automatic import licensing system represents a significant restriction to access the Brazilian market for several Community textile products.
(15) The investigation covered products contained within Chapters 50 to 63 of the Combined Nomenclature and revealed that the effects of the Brazilian system vary from one sector of products to another. Generally speaking, notwithstanding the great potential of the Brazilian market, Community textile exports to Brazil registered no significant increase between 1996 and 1997, especially when compared to those reported on other similar South American markets.
(16) In particular, the introduction of the non-automatic import licence system and the way it is implemented through the compulsory payment terms and the imposed minimum price has already caused in 1997 (and, in some cases, in 1996) a decrease of exports of certain European Union textile products, such as mattress ticking (CN codes: 5516 23 10; 5210 49 00), webbing (CN code: 5806 32 10), bedspreads (and related products) (CN codes: 6302 32 90), knitted synthethic fabrics for curtains (CN code: 6002 43 11), technical fabrics for casual wear (e.g. lyocell, elastan) (CN code: 5516 13 00) to Brazil.
(17) The challenged Brazilian practices have caused an important loss of competitiveness in the Brazilian market for Community exporters of certain textile products. Such loss of competitiveness has been particularly drastic in those sectors, such as mattress ticking, curtain fabrics or webbing, that are subject to minimum import prices.
(18) The introduction of the contested measures has led in many cases to a significant loss in the number and importance of Brazilian clients as well as in the number and importance of the orders received or confirmed.
(19) The requirement of minimum prices has also led to a substantial reduction in the range of products that may be exported to Brazil. In other words, products whose export price is far too low, in comparison with the compulsory minimum price required, can no longer be exported because it would no longer be competitive at the higher price. Significantly enough, this consequence often takes place in relation to low price products, for which there is higher local competition. Accordingly, the Brazilian importer will turn to buy the Brazilian product, which, if it were not for the imposition of compulsory minimum prices, would be more expensive than the equivalent Community textile product.
(20) A further adverse trade effect caused on Community producers/exporters of textile products is the need to change the technical specification or composition of a product. This change is required by the need to comply with the required minimum prices. A change in the technical specification of the product will in some cases be the only way to obtain a product whose price meets the required minimum one and that it is still economically viable. In this regard, the Commission services have been provided with examples where, in the case of mattress ticking, the percentage of cotton, rayon, polyester, etc. in a product had to be altered, e.g. by using a new raw material (such as rayon) or by using a new raw material which results in a different weight per square metre (such as polypropylene).
(21) The use of Brazil's non-automatic import licensing system as a trade policy tool to control trade flows has resulted, in some textile sectors, in a complete alteration of the market conditions which in some cases has led to an almost closing of the Brazilian market to Community textile exporters. As an example, the minimum import price of USD 20/kg imposed by the Brazilian authorities on imports of jacquard mattress ticking under CN code 5516 23 10 is more than the double of the normal sale price of this product (i.e. to USD 8 to 11/kg). Such an increase of price has caused an important loss of competitiveness in the Brazilian market for Community exporters of this home textile product
(22) Therefore, the Commission concluded that the abovementioned effects do constitute adverse trade effects within the meaning of Article 2(4) of the Regulation.
D. COMMUNITY INTEREST
(23) In the last couple of years, European exporters and producers have lodged three cases against Brazilian practices having restrictive effects on Community exports of different products (steel plates, textiles, and sorbitol). These measures seem to be directed at specific sensitive sectors, in a non-transparent way, and through a very flexible decisional process. For this reason, it is of major importance for the Community to tackle in a comprehensive way the Brazilian system.
(24) Moreover, ensuring that WTO partners fully comply with their obligations is of the utmost importance for the Community, which has committed itself to the same obligations. It is fundamental for the good functioning of a multilateral trade system to consistently tackle all allegedly WTO incompatible practices.
(25) As regards the Febeltex case, given the importance of the textile industry for the Community as a whole and the need to ensure a fair access to third country markets for Community textile products, the Community should immediately challenge the Brazilian non-automatic licensing system, pursuant to the relevant provisions of the Agreement on import licensing procedures, GATT 1994 and the WTO Dispute Settlement Understanding.
E. CONCLUSIONS AND MEASURES TO BE TAKEN
(26) Meetings have been held and letters have been exchanged with the relevant Brazilian authorities to discuss this matter further aimed at finding an amicable solution, but the Brazilian authorities did not forward any proposal in view of such solution.
(27) In these circumstances, it appears that the interests of the Community call for initiation of WTO dispute settlement proceeding,
HAS DECIDED:
Article 1
1. The Brazilian non-automatic licensing system, compulsory minimum prices and compulsory payment terms appears to be inconsistent with the obligations of that country under the Marrakech Agreement establishing the World Trading Organisation and constitutes an 'obstacle to trade` within the meaning of Article 2(1) of Regulation (EC) No 3286/94.
2. The Community will commence action against Brazil under the Understanding on the rules and procedures for the settlement of disputes and other relevant WTO provisions with a view to securing removal of the obstacle to trade.
Article 2
This Decision shall apply from the date of its publication in the Official Journal of the European Communities.
Done at Brussels, 17 March 1999.
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COMMISSION DECISION of 6 December 1996 repealing Decision 96/489/EC on a Community financial contribution to measures to control foot-and-mouth disease in the Federal Republic of Yugoslavia (Text with EEA relevance) (97/2/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field (1), as last amended by Decision 94/370/EC (2), and in particular Article 13 thereof,
Whereas, further to the notification by the Federal Republic of Yugoslavia of several outbreaks of foot-and-mouth disease, it was decided by Commission Decision 96/489/EC (3) to grant Community financial assistance for action to control foot-and-mouth disease in that country;
Whereas this action included the making available of vaccine to the authorities of the Federal Republic of Yugoslavia as well as the covering of parts of the costs for vaccination;
Whereas the authorities of the Federal Republic of Yugoslavia have taken eradication measures for controlling the disease; whereas these measures included the taking of samples for the confirmation of the presence of the disease;
Whereas the examination of samples in the world Reference Laboratory in Pirbright (United Kingdom) has not been able to confirm the presence of foot-and-mouth disease;
Whereas no new outbreaks have been reported after 2 August 1996;
Whereas the competent authorities of the Federal Republic of Yugoslavia have therefore decided not to proceed to a vaccination campaign;
Whereas it is necessary therefore to repeal Decision 96/489/EC;
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
Decision 96/489/EC is herewith repealed.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 6 December 1996.
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Commission Decision
of 27 April 2001
fixing the maximum amount of aid granted for the private storage of olive oil under the third partial invitation to tender provided for by Regulation (EC) No 327/2001
(notified under document number C(2001) 892)
(Only the Spanish and Greek texts are authentic)
(2001/362/EC)
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 2826/2000(2), and in particular Article 12a thereof,
Whereas:
(1) In accordance with Commission Regulation (EC) No 327/2001 of 16 February 2001 authorising the conclusion of private storage contracts for olive oil and opening an invitation to tender for a limited period for aid relating thereto(3), the bodies referred to in Article 1 of that Regulation are authorised to conclude contracts for the private storage of virgin and extra virgin olive oil they market.
(2) An invitation to tender has been opened for a limited period. Four consecutive partial invitations to tender are to be opened from 1 March 2001. The first partial invitation to tender was restricted to producer groups or associations of such groups as referred to in the second sentence of the first paragraph of Article 12a of Regulation No 136/66/EEC. The following three partial invitations to tender are open to all approved operators referred to in Article 3(1) of Commission Regulation (EC) No 2768/98 of 21 December 1998 on the aid scheme for the private storage of olive oil(4).
(3) Article 12a of Regulation No 136/66/EEC provides for the granting of aid for the implementation of storage contracts. On the basis of the tenders submitted in response to the third partial invitation to tender and with a view to making a significant contribution to regulating the market, the amount of that aid should be fixed.
(4) The measure provided for in this Decision is in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS DECISION:
Article 1
For the third partial invitation to tender provided for by Article 3 of Regulation (EC) No 327/2001, the maximum amount of the aid referred to in Article 12a of Regulation 136/66/EEC shall be as follows:
Virgin or extra virgin olive oil:
TABLE
Article 2
This Decision is addressed to the Kingdom of Spain and the Hellenic Republic.
Done at Brussels, 27 April 2001.
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COUNCIL DIRECTIVE of 14 June 1966 on the marketing of fodder plant seed (66/401/EEC)
THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 43 and 100 thereof;
Having regard to the proposal from the Commission;
Having regard to the Opinion of the European Parliament 1;
Having regard to the Opinion of the Economic and Social Committee;
Whereas fodder plant production occupies an important place in the agriculture of the European Economic Community;
Whereas satisfactory results in fodder plant cultivation depend to a large extent on the use of appropriate seed ; whereas to this end certain Member States have for some time restricted the marketing of fodder plant seed to high-quality seed ; whereas they have been able to take advantage of the systematic plant selection work carried out over several decades which has resulted in the development of sufficiently stable and uniform fodder plant varieties which, by reason of their characters, promise to be of great value for the purposes in view;
Whereas greater productivity will be achieved in Community fodder plant cultivation if for the choice of the varieties permitted to be marketed the Member States apply uniform rules which are as strict as possible;
Whereas it is, however, justifiable to restrict marketing to certain varieties only if the user can be sure of actually obtaining seed of those varieties;
Whereas certain Member States have for this purpose been applying certification schemes which are intended by official control to ensure identity and varietal purity;
Whereas such a scheme already exists at international level ; whereas the Organisation for Economic Co-operation and Development has established a scheme for the varietal certification of herbage seed moving in international trade;
Whereas it is desirable to establish a uniform certification scheme for the Community based on the experience gained in the application of that scheme and of national schemes for this product;
Whereas the scheme should apply to marketing both in other Member States and on domestic markets;
Whereas, as a general rule, fodder plant seed, for whatever use it is intended as grown, should be allowed to be marketed only if it has been officially examined and certified, in accordance with the rules for certification, as basic seed or certified seed or if, in the case of certain genera and species, it has been officially examined and approved as commercial seed ; whereas the choice of the technical terms "basic seed" and "certified seed" is based on already existing international terminology;
Whereas there should be approval for commercial seed in order to take into account the fact that not all genera and species of fodder plant of importance for cropping have as yet produced either the desired varieties or sufficient quantities of seed of the existing varieties to meet all the needs of the Community ; whereas it is therefore necessary, in the case of certain genera and species, to approve fodder plant seed which is not of a named variety, but which satisfies the regulations in all other respects;
Whereas fodder plant seed which is not placed on the market should not, in view of its minor economic 1 OJ No 109, 9.7.1964, p. 1751/64. importance, be subject to Community rules ; whereas Member States must retain the right to make such seed subject to special provisions;
Whereas Community rules should not apply to seed shown to be intended for export to third countries;
Whereas, in order to improve not only the genetic quality of Community fodder plant seed but also its external characters, certain requirements should be laid down as to analytical purity and germination;
Whereas, in order to ensure the identity of the seed, Community rules on packaging, sampling, sealing and marking must be established ; whereas to this end the labels should give the particulars needed both for official control and for the information of the user and should clearly show the Community nature of the certification of the certified seed of the various categories;
Whereas certain Member States need blends of fodder plant seed of several genera and species for special uses ; whereas, in order to take these needs into account, Member States should be authorised to approve such blends subject to certain conditions;
Whereas, in order to ensure that both the requirements as to the quality of the seed and the provisions for ensuring its identity are complied with during marketing, the Member States must make provision for appropriate control arrangements;
Whereas seed satisfying these requirements should, without prejudice to Article 36 of the Treaty, be subject to no marketing restrictions other than those provided for in Community rules;
Whereas, during a first stage, until a common catalogue of varieties has been established, the restrictions allowed should include in particular the right of Member States to restrict the marketing of certified seed to those varieties which are of value for cropping and use in their own territory;
Whereas, subject to certain conditions, seed multiplied in another country from basic seed certified in a Member State should be recognised as equivalent to seed multiplied in that Member State;
Whereas, on the other hand, provision should be made for authorising the marketing within the Community of fodder plant seed harvested in third countries only if such seed affords the same assurances as seed officially certified, or officially approved as commercial seed, within the Community and complying with Community rules;
Whereas, during periods in which there are difficulties in obtaining supplies of certified seed of the various categories or of commercial seed, seed satisfying less stringent requirements should temporarily be permitted to be marketed;
Whereas, in order to harmonise the technical methods of certification used in the various Member States and to enable comparisons to be made in the future between seed certified within the Community and that coming from third countries, Community test fields should be established in Member States to permit annual post-control of seed of the various categories of "certified seed";
Whereas the Commission should be entrusted with the task of adopting certain measures for the application of this Directive ; whereas, in order to facilitate implementation of the proposed measures, a procedure should be provided for establishing close co-operation between Member States and the Commission within a Standing Committee on Seeds and Propagating Material for Agriculture, Horticulture and Forestry;
HAS ADOPTED THIS DIRECTIVE:
Article 1
This Directive shall apply to fodder plant seed marketed within the Community, irrespective of the use for which the seed as grown is intended.
Article 2
For the purposes of this Directive, the following definitions shall apply: A. Fodder plants : plants of the following genera and species: PIC FILE= "T
PIC FILE= "T
B. Basic Seed: 1. Seed of bred varieties : seed (a) which has been produced under the responsibility of the breeder according to accepted practices for the maintenance of the variety;
(b) which is intended for the production of seed of the category "certified seed";
(c) which, subject to the provisions of Article 4, satisfies the conditions laid down in Annexes I and II for basic seed ; and
(d) which has been found by official examination to satisfy the above-mentioned conditions.
2. Seed of local varieties : seed (a) which has been produced under official control from material officially accepted as being of the local variety on one or more holdings situated within a clearly demarcated region of origin;
(b) which is intended for the production of seed of the category "certified seed";
(c) which, subject to the provisions of Article 4, satisfies the conditions laid down in Annexes I and II for basic seed ; and
(d) which has been found by official examination to satisfy the above-mentioned conditions.
C. Certified seed : seed (a) which is of direct descent from basic seed or certified seed of a given variety;
(b) which is intended for the production of seed of the category "certified seed" or of plants;
(c) which, subject to the provisions of Article 4 (b), satisfies the conditions laid down in Annexes I and II for certified seed ; and
(d) which has been found by official examination to satisfy the above-mentioned conditions.
D. Commercial seed : seed (a) Which is identifiable as belonging to a species;
(b) which, subject to the provisions of Article 4 (b), satisfies the conditions laid down in Annex II for commercial seed ; and
(c) which has been found by official examination to satisfy the above-mentioned conditions.
E. Official measures : measures taken (a) by State authorities, or
(b) by any legal person whether governed by public or by private law, acting under the responsibility of the State, or
(c) in the case of ancillary activities which are also subject to State control, by any natural person duly sworn for that purpose,
provided that the persons mentioned under (b) and (c) derive no private gain from such measures.
Article 3
1. The Member States shall provide that seed of
Dactylis glomerata L.
Festuca arundinacea Schreb.
Festuca pratenses Huds.
Festuca rubra L.
Lolium spec.
Phleum pratense L.
Medicago sativa L.
Medicago varia Martyn
Pisum arvense L. and
Trifolium repens L.
may not be placed on the market unless it has been officially certified as "basic seed" or "certified seed" and unless it satisfies the conditions laid down in Annex II.
2. The Member States shall provide that fodder plant seed of genera and species other than those listed in paragraph 1 may not be placed on the market unless the seed has been officially certified as "basic seed" or "certified seed", or is commercial seed, and unless the seed also satisfies the conditions laid down in Annex II.
3. The Commission may, in accordance with the procedure laid down in Article 21, provide that after specified dates seed of genera and species of fodder plant other than those listed in paragraph 1 may not be placed on the market unless it has been officially certified as "basic seed" or "certified seed".
4. The Member States shall ensure that the official examinations are carried out in accordance with current international methods, in so far as such methods exist.
5. Member States may provide for derogations from the provisions of paragraphs 1 and 2: (a) for bred seed of generations prior to basic seed;
(b) for tests or for scientific purposes;
(c) for selection work;
(d) for seed as grown, marketed for processing, provided that the identity of the seed is ensured.
Article 4
Member States may, however, by way of derogation from the provisions of Article 3: (a) authorise the official certification and marketing of basic seed which does not satisfy the conditions laid down in Annex II in respect of germination ; a similar derogation may also be granted in respect of certified seed of Trifolium pratense where such seed is intended for the further production of certified seed.
In the cases given above, all necessary measures shall be taken to ensure that the supplier guarantees a specific germination which he shall state for marketing purposes on a special label bearing his name and address and the reference number of the seed lot;
(b) in order to make seed rapidly available, notwithstanding the fact that official examination to check compliance with the conditions laid down in Annex II in respect of germination has not been concluded, authorise the official certification or approval and marketing as far as the first buyer by way of trade of seed of the categories "basic seed", "certified seed" or "commercial seed". Certification or approval shall be granted only on presentation of a provisional analytical report on the seed and provided that the name and address of the first recipient are given ; all necessary measures shall be taken to ensure that the supplier guarantees the germination ascertained at the provisional analysis ; this germination shall be stated for marketing purposes on a special label bearing the name and address of the supplier and the reference number of the lot.
These provisions shall not apply to seed imported from third countries, save as otherwise provided in Article 15 in respect of multiplication outside the Community.
Article 5
Member States may, as regards the conditions laid down in Annexes I and II, impose additional or more stringent requirements for the certification and examination of commercial seed produced in their own territory.
Article 6
1. Each Member State shall establish a list of the varieties of fodder plant officially accepted for certification in its territory ; the list shall give the main morphological or physiological characters by which varieties of plants directly derived from seed of the category "certified seed" can be distinguished one from another, and the officially established maximum number of generations accepted for certification produced from the basic seed of each variety. In the case of local varieties the list shall indicate the region of origin.
2. In the case of hybrids and synthetic varieties, the authorities responsible for acceptance and certification shall be informed of the genealogical components. The Member States shall ensure that the results of the examination and the description of the genealogical components are, if the breeder so requests, treated as confidential.
3. A variety shall be accepted for certification only if it has been established by official or officially controlled examinations, particularly growing trials, that the variety is sufficiently uniform and stable.
4. The varieties accepted shall be officially checked at regular intervals. If any of the conditions for acceptance for certification is no longer satisfied, acceptance shall be revoked and the variety deleted from the list.
5. These lists and any alterations made to them shall be sent forthwith to the Commission, which shall communicate them to the other Member States.
Article 7
1. The Member States shall require that, for the checking of varieties, the examination of seed for certification and the examination of commercial seed, samples are drawn officially in accordance with appropriate methods.
2. For the examination of seed for certification and the examination of commercial seed, samples shall be drawn from homogeneous lots ; the maximum weight of a lot and the minimum weight of a sample are given in Annex III.
Article 8
1. The Member States shall require that basic seed, certified seed and commercial seed be marketed only in sufficiently homogeneous consignments and in sealed containers bearing, as prescribed in Articles 9 and 10, a sealing device and markings.
2. Member States may, for the marketing of small quantities to the final consumer, provide for derogations from the provisions of paragraph 1 in respect of packaging, sealing and marking.
Article 9
1. The Member States shall require that packages of basic seed, certified seed and commercial seed be officially sealed in such a manner that when the container is opened the seal is damaged and cannot be reattached.
2. Packages shall not be resealed except officially. If packages are resealed, the fact of resealing, the date of resealing and the authority responsible therefor shall be stated on the label required under Article 10 (1).
Article 10
1. The Member States shall require that packages of basic seed, certified seed and commercial seed (a) be labelled on the outside with an official label in one of the official languages of the Community conforming to the specification in Annex IV ; it shall be attached with the official seal ; the colour of the label shall be white for basic seed, blue for certified seed of the first generation after basic seed, red for certified seed of subsequent generations after basic seed and dark yellow for commercial seed ; for marketing in other Member States the label shall bear the date on which the official seal was attached ; if, as envisaged in Article 4 (a), the basic seed or certified seed does not satisfy the conditions laid down in Annex II in respect of germination, this fact shall be stated on the label;
(b) contain an official document, in the same colour as the label, giving the same information as that required under Annex IV for the label ; this document is not necessary if the information is printed indelibly on the container.
2. Member States may: (a) require that in all cases the date on which the official seal was attached be stated on the label;
(b) provide in the case of small packets for derogations from the provisions of paragraph 1.
Article 11
This Directive shall not affect the right of Member States to require that, in cases other than those provided for in Article 4, containers of basic seed, certified seed or commercial seed, whether the seed has been produced in their own territory or imported, must, if the seed is to be marketed within their territory, bear a supplier's label.
Article 12
The Member States shall require that any chemical treatment of basic seed, certified seed or commercial seed be noted either on the official label or on the supplier's label and on the container or inside it.
Article 13
1. Member States may authorise the marketing of fodder plant seed in the form of blends composed of various genera and species of fodder plant seed or of blends containing seed of plants which are not fodder plants within the meaning of this Directive, provided that the various components of the blend complied, before blending, with the marketing regulations applicable to them.
2. The provisions of Articles 8, 9 and 11 shall apply, as shall also those of Article 10, except that for blended seed the label used shall be green.
Article 14
1. The Member States shall ensure that basic seed and certified seed which have been officially certified and whose containers have been officially marked and sealed as prescribed in this Directive, and commercial seed whose containers have been officially marked and sealed as prescribed in this Directive, are subject to no marketing restrictions as regards their characters, examination arrangements, marking and sealing other than those laid down in this Directive.
2. Member States may: (a) where no measures have been taken by the Commission under Article 3 (3) and entered into force, provide that after specified dates seed of genera and species of fodder plant other than those listed in Article 3 (1) may not be placed on the market unless it has been officially certified as "basic seed" or "certified seed";
(b) adopt provisions concerning the maximum moisture content accepted for marketing;
(c) restrict the marketing of certified fodder plant seed to that of the first generation after basic seed;
(d) until such time, which should not be later than 1 January 1970, as a common catalogue of varieties can be introduced, restrict the marketing of fodder plant seed to those varieties which are entered in a national list based on value for cropping and use in their territory ; the conditions for inclusion in this list shall be the same for varieties coming from other Member States as for domestic varieties.
Article 15
The Member States shall provide that fodder plant seed produced directly from basic seed certified in one Member State and harvested in another Member State or in a third country is to be regarded as equivalent to certified seed of the first generation produced from basic seed harvested in the State which produced the basic seed if that seed has undergone field inspection satisfying the conditions laid down in Annex I and if official examination has shown that the conditions laid down in Annex II for certified seed are satisfied.
Article 16
1. The Council, acting by a qualified majority on a proposal from the Commission, shall determine whether: (a) in the case provided for in Article 15, the field inspections in the third country satisfy the conditions laid down in Annex I;
(b) fodder plant seed havested in a third country and affording the same assurances as regards its characters and the arrangements for its examination, for ensuring identity, for marking and for control is equivalent in these respects to basic seed, certified seed or commercial seed harvested within the Community and complying with the provisions of this Directive.
2. Until such time as the Council has taken a decision under paragraph 1, the Member States shall be free to take such decisions themselves. This right shall expire on 1 July 1969.
Article 17
1. In order to remove any temporary difficulties in the general supply of basic seed, certified seed or commercial seed that occur in one or more Member States and cannot be overcome within the Community, the Commission, acting in accordance with the procedure laid down in Article 21, shall authorise one or more of the Member States to accept for marketing, for a period to be set by the Commission, seed of a category satisfying less stringent requirements.
2. For a category of seed of any given variety, the official label shall be that provided for the corresponding category ; in all other cases it shall be that provided for commercial seed. The label shall always state that the seed in question is of a category satisfying less stringent requirements.
Article 18
This Directive shall not apply to fodder plant seed shown to be intended for export to third countries.
Article 19
The Member States shall make suitable arrangements for fodder plant seed to be officially controlled during marketing, at least by check sampling, as regards its compliance with the requirements of this Directive.
Article 20
1. Community test fields shall be established within the Community for the annual post-control of seed samples taken during check sampling ; these fields shall be subject to inspection by the Committee referred to in Article 21.
2. These comparative tests shall, during a first stage, be used to harmonise the technical methods of certification so as to obtain results which are equivalent. As soon as this aim is achieved, annual progress reports shall be made on the comparative tests and sent in confidence to the Member States and to the Commission. The Commission shall, in accordance with the procedure laid down in Article 12, set the date for the first report.
3. The Commission, acting in accordance with the procedure laid down in Article 21, shall make the necessary arrangements for the comparative tests to be carried out. Fodder plant harvested in third countries may be included in the comparative tests.
Article 21
1. Where the procedure laid down in this Article is to be followed, matters shall be referred by the Chairman, either on his own initiative or at the request of the representative of a Member State, to the Standing Committee on Seeds and Propagating Material for Agriculture, Horticulture and Forestry (hereinafter called the "Committee") set up by the Council Decision of 14 June 1966 1.
2. Within the Committtee, the votes of the Member States shall be weighted as provided in Article 148 (2) of the Treaty. The Chairman shall not vote.
3. The representative of the Commission shall submit a draft of the measures to be adopted. The Committee shall deliver its Opinion on such measures within a time limit set by the Chairman according to the urgency of the matter. Opinions shall be delivered by a majority of twelve votes.
4. The Commission shall adopt measures which shall apply immediately. However, if these measures are not in accordance with the Opinion of the Committee, they shall forthwith be communicated by the Commission to the Council. In that event the Commission may defer application of the measures which it has adopted for not more than one month from the date of such communication.
The Council, acting by a qualified majority, may take a different decision within one month.
Article 22
This Directive shall be without prejudice to the provisions of national laws justified on grounds of the protection of health and life of humans, animals or plants or the protection of industrial and commercial property.
1 OJ No 125, 11.7.1966, p. 2289/66.
Article 23
The Member States shall, not later than 1 July 1968, bring into force the laws, regulations or administrative provisions necessary to comply with the provisions of Article 14 (1) and, not later than 1 July 1969, those necessary to comply with the other provisions of this Directive and its Annexes. They shall forthwith inform the Commission thereof.
Article 24
This Directive is addressed to the Member States.
Done at Brussels, 14 June 1966.
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COUNCIL REGULATION (EEC) No 1607/93 of 24 June 1993 extending the provisional anti-dumping duty on imports of bicycles originating in the People's Republic of China
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 11 thereof,
Having regard to the proposal from the Commission,
Whereas Commission Regulation (EEC) No 550/93 (2) imposed a provisional anti-dumping duty on imports of bicycles originating in the People's Republic of China;
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 objection,
HAS ADOPTED THIS REGULATION:
Article 1
The validity of the provisional anti-dumping duty on imports of bicycles originating in the People's Republic of China imposed by Regulation (EEC) No 550/93 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 Luxembourg, 24 June 1993.
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COMMISSION REGULATION (EC) No 288/2007
of 16 March 2007
laying down transitional measures to be adopted on account of the accession of Bulgaria and Romania in respect of the requirements for the granting of export refunds on certain milk and egg products pursuant to Regulation (EC) No 1043/2005
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty of Accession of Bulgaria and Romania,
Having regard to the Act of Accession of Bulgaria and Romania, and in particular the first paragraph of Article 41 thereof,
Whereas:
(1)
Article 52(4) of Commission Regulation (EC) No 1043/2005 of 30 June 2005 implementing Council Regulation (EC) No 3448/93 as regards the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds (1), provides that the granting of a refund on certain milk and egg based goods is conditional on them meeting the relevant requirements of Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (2) and Regulation (EC) No 853/2004 of the European Parliament and the Council of 29 April 2004 laying down specific rules on the hygiene of foodstuffs (3). In particular, the goods must, under Articles 4 and 5 of Regulation (EC) No 853/2004, be prepared in an approved establishment and comply with specific health marking requirements.
(2)
Commission Decision 2007/30/EC of 22 December 2006 laying down transitional measures for the marketing of certain products of animal origin obtained in Bulgaria and Romania (4) lays down measures to facilitate the transition from the existing regime in those States to that resulting from the application of Community veterinary legislation. According to Article 3 of that Decision, Member States are to authorise trade from 1 January to 31 December 2007 in products which are obtained in establishments in Bulgaria and Romania authorised to export milk or egg products to the Community before the date of accession, provided that the products bear the Community export health mark of the establishment concerned and are accompanied by a document which certifies that they were produced in conformity with Decision 2007/30/EC.
(3)
It is therefore appropriate to derogate from Article 52(4) of Regulation (EC) No 1043/2005, without prejudice to the application of the other provisions of that Regulation, and provide that goods which comply with Article 3 of Decision 2007/30/EC and are authorised to be traded for the period from 1 January to 31 December 2007 should be eligible for an export refund.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee on horizontal questions concerning trade in processed agricultural products not listed in Annex I to the Treaty,
HAS ADOPTED THIS REGULATION:
Article 1
By way of derogation from Article 52(4) of Regulation (EC) No 1043/2005, goods obtained before the date of accession in establishments in Bulgaria and Romania authorised to export to the Community before the date of accession and exported from the Community in the period from the accession date to 31 December 2007 shall be eligible for an export refund, provided that they meet the requirements of Article 3(a) and (b) of Decision 2007/30/EC.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
It shall apply to export declarations accepted from 1 January to 31 December 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 March 2007.
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COMMISSION REGULATION (EC) No 373/2008
of 24 April 2008
establishing a prohibition of fishing for cod in ICES zones IV; EC waters of IIa; that part of IIIa not covered by the Skagerrak and Kattegat by vessels flying the flag of Sweden
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (1), and in particular Article 26(4) thereof,
Having regard to Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to common fisheries policy (2), and in particular Article 21(3) thereof,
Whereas:
(1)
Council Regulation (EC) No 40/2008 of 16 January 2008 fixing for 2008 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks applicable in Community waters and for Community vessels, in waters where catch limitations are required (3), lays down quotas for 2008.
(2)
According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein have exhausted the quota allocated for 2008.
(3)
It is therefore necessary to prohibit fishing for that stock and its retention on board, transhipment and landing,
HAS ADOPTED THIS REGULATION:
Article 1
Quota exhaustion
The fishing quota allocated to the Member State referred to in the Annex to this Regulation for the stock referred to therein for 2008 shall be deemed to be exhausted from the date set out in that Annex.
Article 2
Prohibitions
Fishing for the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein shall be prohibited from the date set out in that Annex. It shall be prohibited to retain on board, tranship or land such stock caught by those vessels after that date.
Article 3
Entry into force
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 April 2008.
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Commission Regulation (EC) No 920/2001
of 10 May 2001
concerning tenders notified in response to the invitation to tender for the export of oats issued in Regulation (EC) No 2097/2000
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),
Having regard to Commission Regulation (EC) No 2097/2000 of 3 October 2000 on a special intervention measure for cereals in Finland and Sweden(5), as last amended by Regulation (EC) No 680/2001(6), and in particular Article 8 thereof,
Whereas:
(1) An invitation to tender for the refund for the export of oats produced in Finland and Sweden for export from Finland or Sweden to all third countries was opened pursuant to Regulation (EC) No 2097/2000.
(2) Article 8 of Regulation (EC) No 2097/2000 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 make no award.
(3) On the basis of the criteria laid down in Article 1 of Regulation (EC) No 1501/95 a maximum refund should not be fixed.
(4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
No action shall be taken on the tenders notified from 4 to 10 May 2001 in response to the invitation to tender for the refund for the export of oats issued in Regulation (EC) No 2097/2000.
Article 2
This Regulation shall enter into force on 11 May 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 May 2001.
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COMMISSION REGULATION (EC) No 1784/94 of 19 July 1994 concerning the stopping of fishing for Greenland halibut by vessels flying the flag of the United Kingdom
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 Council Regulation (EC) No 3693/93 of 21 December 1993 allocating, for 1994, Community catch quotas in Greenland waters (2) provides for Greenland halibut quotas for 1994;
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 Greenland halibut in the waters of ICES divisions V and XIV (Greenland waters) by vessels flying the flag of the United Kingdom or registered in the United Kingdom have reached the quota allocated for 1994; whereas the United Kingdom has prohibited fishing for this stock as from 5 July 1994; whereas it is therefore necessary to abide by that date,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of Greenland halibut in the waters of ICES divisions V and XIV (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 1994.
Fishing for Greenland halibut in the waters of ICES divisions V and XIV (Greenland waters) by vessels flying the flag of the United Kingdom or registered in the United Kindgom 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, 19 July 1994.
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COMMISSION DECISION
of 4 September 2006
establishing the classes of external fire performance for certain construction products as regards double skin metal faced sandwich panels for roofs
(notified under document number C(2006) 3883)
(Text with EEA relevance)
(2006/600/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Directive 89/106/EEC of 21 December 1988, on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (1), and in particular Article 20(2) thereof,
Whereas:
(1)
Directive 89/106/EEC envisages that in order to take account of different levels of protection for the construction works at national, regional or local levels, it may be necessary to establish in interpretative documents classes corresponding to the performance of products in respect of each essential requirement. Those documents have been published as the ‘Communication of the Commission with regard to the interpretative documents of Directive 89/106/EEC (2)’.
(2)
With respect to the essential requirement of safety in the event of fire, interpretative document No 2 lists a number of interrelated measures which together define the fire safety strategy to be variously developed in the Member States.
(3)
Interpretative document No 2 identifies one of those measures as the limitation of the generation and spread of fire and smoke within a given area by limiting the potential of construction products to contribute to the full development of a fire.
(4)
The level of that limitation may be expressed only in terms of the different levels of reaction-to-fire performance of the products in their end-use application.
(5)
By way of a harmonised solution, a system of classes was adopted in Commission Decision 2001/671/EC of 21 August 2001 implementing Council Directive 89/106/EEC as regards the classification of the external fire performance of roofs and roof coverings (3).
(6)
In the case of certain construction products, it is necessary to use the classification established in Decision 2001/671/EC.
(7)
The external fire performance of some roofs and roof coverings, within the classification provided for in Decision 2001/671/EC, is well established and sufficiently well known to fire regulators in Member States, so that they do not require testing for this particular performance characteristic.
(8)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Construction,
HAS ADOPTED THIS DECISION:
Article 1
The construction products which satisfy all the requirements of the external fire performance characteristics without need for further testing are set out in the Annex.
Article 2
The specific classes to be applied to different construction products, within the external fire performance classification adopted in Decision 2001/671/EC, are set out in the Annex to this Decision.
Article 3
Products shall be considered in relation to their end-use application, where relevant.
Article 4
This Decision is addressed to the Member States.
Done at Brussels, 4 September 2006.
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COMMISSION DECISION
of 27 April 1984
laying down the criteria for the recognition of breeders' organizations and associations which maintain or establish herd-books for pure-bred breeding animals of the bovine species
(84/247/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 77/504/EEC of 15 July 1977 on pure-bred breeding animals of the bovine species (1), as last amended by the Act of Accession of Greece, and in particular the second and third indents of Article 6 (1) thereof,
Whereas, under the second and third indents of Article 6 (1) of Directive 77/504/EEC it is for the Commission to determine, in accordance with the procedure laid down in Article 8 of the abovementioned Directive, the criteria governing the recognition of breeders' organizations and associations and the criteria governing the establishment of herd-books;
Whereas in all the Member States, with the exception at present of Greece, herd-books are maintained or established by breeders' organizations and associations; whereas it is therefore necessary to lay down the criteria for the recognition of breeders' organizations and associations which maintain or establish herd-books;
Whereas a breeders' organization or association must apply for official recognition to the competent authorities of the Member State on whose territory its headquarters are situated;
Whereas, where a breeders' organization or association meets certain criteria and has defined targets, it must be officially recognized by the authorities of the Member State to which it has applied;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Zootechnics,
HAS ADOPTED THIS DECISION:
Article 1
In order to be officially recognized, a breeders' organization or association which maintains or establishes herd-books must submit an application to the authorities of the Member State on whose territory its headquarters are situated.
Article 2
The authorities of the Member State concerned must grant official recognition to any breeders' organization or association which maintains or establishes herd-books if the latter meet the conditions laid down in the Annex.
However, in a Member State in which in respect of a given breed one or more officially recognized organizations or associations already exists, the authorities of the Member State concerned may refuse to recognize a new breeders' organization or association if it endangers the preservation of the breed or jeopardizes the zootechnical programme of the existing organization or association. In such a case, the Member States shall inform the Commission of approvals granted and refusals to give recognition.
Article 3
The authorities of the Member State concerned shall withdraw official recognition from any breeders' organization or association which maintains herd-books if the conditions laid down in the Annex are no longer being fulfilled in a persistent manner by the breeders' organization or association concerned.
Article 4
This Decision is addressed to the Member States.
Done at Brussels, 27 April 1984.
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COMMISSION REGULATION (EC) No 968/2006
of 27 June 2006
laying down detailed rules for the implementation of Council Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (1), and in particular Article 12 thereof,
Whereas:
(1)
Regulation (EC) No 320/2006 provides for a restructuring aid for those undertakings which decide to give up their quota production, with part of the aid reserved for beet, cane and chicory growers as well as machinery contractors, in order to compensate for losses resulting from the closure of sugar factories. It also provides for an aid for diversification to Member States for diversification measures in the regions concerned by factory closures, for a transitional aid to full-time refiners and for a transitional aid to certain Member States.
(2)
Before submitting an application for restructuring aid, the undertakings are to consult sugar beet, cane and chicory growers, in accordance with Article 3(2) of Regulation (EC) No 320/2006. In order to ensure that growers and other interested parties are offered a fair opportunity to give their views, detailed rules for the consultation process should be established.
(3)
Restructuring aid is granted in respect of the marketing year for which the quota is renounced. Hence, in the case where sugar, isoglucose or inulin syrup is withdrawn or carried forward from the previous marketing year and becomes the first quota production of the marketing year for which an undertaking plans to renounce its quota, the undertaking should be allowed to make one single application for the renunciation of the quota in two successive marketing years, receiving for each part of the quota the amount of restructuring aid applicable to the marketing year for which the quota is renounced.
(4)
In relation to the renunciation of quotas, Article 3 of Regulation (EC) No 320/2006 sets out the options of full or partial dismantling of the production facilities, which give rise to different amounts of restructuring aid. While the conditions applicable to those two options should take into account that a higher amount of restructuring aid is granted to full dismantling, because of the higher costs involved, it is considered appropriate to allow for the possibility to keep parts of the factory which are not part of the production line, if they can be used for other purposes foreseen in the restructuring plan, especially when such use creates employment. On the other hand, installations not directly linked to sugar production should be dismantled if there is no alternative use for them within a reasonable period of time and maintaining them would be harmful to the environment.
(5)
In order to protect farmers and machinery contractors' interests, the undertakings should be required to pay them their share of the restructuring aid according to criteria established by the Member State and within a reasonable period of time after having received the first instalment of the restructuring aid.
(6)
Because of the financial limits of the temporary restructuring fund, the granting of the aid should depend on the chronological order of the lodging of applications. It is thus necessary to establish the criteria for how this chronological order should be determined.
(7)
The Member State's decision on the eligibility of an application for restructuring aid is based on its acceptance of the restructuring plan submitted together with the application. It is thus necessary to define the criteria and procedure for the acceptance of the restructuring plan, as well as for further amendments to such plan.
(8)
In cases where, due to the financial limits of the temporary restructuring fund, the resources of the fund are momentarily insufficient to grant restructuring aid to an applicant whose application has been found eligible, the applicant should be allowed to withdraw his application within a certain period. In the absence of withdrawal, the application should remain valid with its original date of lodging and become an application for the following marketing year.
(9)
The Commission should calculate the amount of aid for diversification and additional aid for diversification, as well as of the transitional aid to certain Member States and inform each Member State of the amount available. The Member States should inform the Commission about their national restructuring programmes, detailing the measures to be undertaken.
(10)
In order to make it easier for full-time refiners who have lost certain benefits which they held under Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (2) to adapt to the new situation following the entry into force of Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (3), Regulation (EC) No 320/2006 introduces a transitional aid allocated in those Member States where refiners within the meaning of Regulation (EC) No 1260/2001 were established in the past. The Member States concerned should award the aid to the full-time refiners established on their territory on the basis of a business plan prepared by the undertaking concerned.
(11)
In order to enable Member States to control the restructuring process, undertakings receiving an aid should submit annual progress reports. Member States should submit progress reports about the restructuring plans of those undertakings, refiners' business plans as well as their national restructuring programmes to the Commission.
(12)
Arrangements should be laid down for controls to be carried out by Member States in order to ensure in particular that the restructuring plan related to the granting of restructuring aid and the business plan related to the granting of aid to full-time refiners are being complied with.
(13)
It is necessary to provide for penalties to be applied in the case where an undertaking does not comply with its obligations under the restructuring plan or the business plan.
(14)
The Fund Committee has not delivered an opinion within the time-limit set by its chairman,
HAS ADOPTED THIS REGULATION:
CHAPTER I
INTRODUCTORY PROVISIONS
Article 1
Scope and definitions
1. This Regulation lays down detailed rules for the implementation of the measures provided for in Articles 3, 6, 7, 8 and 9 of Regulation (EC) No 320/2006 and financed by the restructuring fund established by Article 1 of that Regulation.
2. For the purposes of this Regulation, the definitions provided for in Article 2 of Regulation (EC) No 320/2006 shall apply.
The definition of ‘working day’ provided for in Article 2(2) of Council Regulation (EEC, Euratom) No 1182/71 (4) shall also apply.
CHAPTER II
CONDITIONS FOR GRANTING RESTRUCTURING AID
Article 2
Consultation in the framework of agreements within the trade
1. The consultation conducted in the framework of the relevant agreements within the trade as referred to in the second subparagraph of Article 3(2) of Regulation (EC) No 320/2006 shall be based on a detailed timetable and a draft restructuring plan drawn up by the undertaking concerned.
The relevant agreement with the trade shall be the one concluded for the marketing year in which the consultation takes place.
The representatives of the workers and other parties concerned by the restructuring plan but not taking part in the relevant agreement within the trade may be invited by the undertaking to take part in the consultation as observers.
2. The consultation shall involve all elements of the restructuring plan referred to in Article 4(3) of Regulation (EC) No 320/2006.
3. The invitation to the consultation shall be sent by the undertaking concerned. It shall be accompanied by the draft restructuring plan and a detailed agenda for the meeting to be held. A copy of the invitation and the accompanying documents shall be sent at the same time to the competent authority of the Member State.
4. Unless an agreement can be found earlier, the consultation shall consist of at least two meetings and shall last for up to 30 days as from the day on which the invitation to the consultation was sent.
5. The confirmation that the restructuring plan has been prepared in consultation, as referred to in Article 4(2)(b) of Regulation (EC) No 320/2006, shall be based on:
(a)
the invitation sent by the undertaking concerned and received by the other parties;
(b)
the signatures of the participants to the meetings or a statement of the eventual abstention from participation of any of the invited parties;
(c)
the draft restructuring plan as amended by the undertaking concerned after the consultation, specifying the elements agreed by the parties, as well as the elements not agreed;
(d)
if any, the position papers of the parties to the agreement within the trade, the opinion of the workers' representative and the opinions of the other invited parties.
6. For the 2006/2007 marketing year, Member States may take into account consultations conducted in the framework of the relevant agreements within the trade which took place before the entry into force of this Regulation, even if they do not comply with the requirements of this Regulation.
Article 3
Renunciation of quota
As from the marketing year for which the quota is renounced in accordance with Article 3 of Regulation (EC) No 320/2006, no production of sugar, isoglucose or inulin syrup and no sugar, isoglucose or inulin syrup carried forward or withdrawn from the previous marketing year may be deemed as a production under that quota as regards the factories concerned.
Article 4
Dismantling of production facilities
1. In the case of full dismantling referred to in Article 3(1)(a) of Regulation (EC) No 320/2006, the requirement to dismantle the production facilities shall concern:
(a)
all facilities which are necessary to produce sugar, isoglucose or inulin syrup, as for example: facilities to store, analyse, wash and cut sugar beet, cane, cereals or chicory; all facilities which are necessary to extract and process or concentrate sugar from sugar beet or cane, starch from cereals, glucose from starch or inulin from chicory;
(b)
the part of the facilities other than those referred to in point (a) which are directly related to the production of sugar, isoglucose or inulin syrup and necessary to deal with production under the quota renounced, even if it could be used in relation with the production of other products, such as: facilities for heating or processing water, or for producing energy; facilities to deal with sugar beet pulp or molasses; facilities for internal transport;
(c)
all other facilities, such as packaging facilities, left unused and to be dismantled and removed for environmental reasons.
2. In the case of partial dismantling referred to in Article 3(1)(b) of Regulation (EC) No 320/2006, the requirement to dismantle the production facilities shall concern the facilities referred to in paragraph 1 of this Article that are not intended to be used for other production or other use of the factory site in accordance with the restructuring plan.
Article 5
Coherence between different sources of funding
The Member States shall ensure the coherence and the complementarity of measures or actions financed by the restructuring fund and by other Community funds at regional or national level, as well as the absence of duplication between them.
CHAPTER III
APPLICATION FOR AND GRANTING OF RESTRUCTURING AID
Article 6
Member States obligations
1. Forty-five days after it has received the copy of the invitation to the consultation as referred to in Article 2(3) at the latest, the Member State shall inform the parties involved in the restructuring plan of its decision on:
(a)
the percentage of the restructuring aid to be distributed to the growers of beet, cane and chicory and to machinery contractors, the objective criteria for the distribution of that part of the aid between the two groups and within each group, as determined after consultation of the interested parties, and the period referred to in Article 3(6) of Regulation (EC) No 320/2006;
(b)
the period, expiring on 30 September 2010 at the latest, for dismantling production facilities and for complying with the social and environmental commitments referred to in Articles 3(3)(c) and 3(4)(c) of Regulation (EC) No 320/2006;
(c)
if appropriate, the national specific requirements for the social and environmental commitments, in the restructuring plan, which go beyond the statutory minimum requirements imposed by Community law, as referred to in Articles 3(3)(c) and 3(4)(c) of Regulation (EC) No 320/2006.
2. By way of derogation from paragraph 1, the Member State shall, in the case where Article 2(6) applies, inform the parties of its decision no later than 15 July 2006.
3. Machinery contractors shall be compensated for the loss incurred following the loss of value of their specialised machinery, which can not be used for other purposes.
Article 7
Application for restructuring aid
1. Each application for restructuring aid shall cover one product and one marketing year.
2. By way of derogation from paragraph 1, where a quota to be renounced has been partly fulfilled by a production carried forward or withdrawn from the previous marketing year, the undertaking may renounce the full quota for the factory or factories concerned, under full or partial dismantling, in the following two steps:
(a)
as from the first marketing year concerned by the application, the part of the quota for which there is no production shall be renounced with a request for the amount of restructuring aid for full or partial dismantling applicable to that marketing year;
(b)
the remaining part of the quota concerned shall be subject to the temporary restructuring amount provided for in Article 11 of Regulation (EC) No 320/2006 and shall be renounced as from the next marketing year with a request for the amount of restructuring aid for full or partial dismantling applicable to that marketing year.
In the case of application of this paragraph, the undertaking may submit one single application for the two marketing years concerned.
3. The application for restructuring aid shall specify the amount of allocated quota to be renounced for each of the factories of the undertaking concerned and shall be consistent with the relevant collective agreements, including agreements concluded by the social partners at sector or company level related to the restructuring of the sugar industry.
Article 8
Receipt of the application for restructuring aid
1. The granting of restructuring aid within the financial limits referred to in Article 10(1) and (2) of Regulation (EC) No 320/2006 shall be based on the chronological order of lodging of the complete applications for restructuring aid, based on dates and hours at local time as stated by acknowledgments of receipt from the Member State concerned in accordance with paragraph 3 of this Article.
2. An application for restructuring aid shall be deemed to be complete after the reception by the competent authority of the Member State concerned of all the elements referred to in Article 4(2) and (3) of Regulation (EC) No 320/2006.
3. The competent authority of the Member State shall send to the undertaking concerned an acknowledgment of receipt indicating the date and hour of the lodging of a complete application for restructuring aid, within five working days after the date on which the application is deemed to be complete.
4. In the case of an incomplete application, the competent authority of the Member State shall, within five working days upon reception, return the application to the applicant and specify the conditions that are not complied with.
5. An application which is not deemed to be complete by the deadline laid down in Article 4(1) of Regulation (EC) No 320/2006 shall not be taken into account for the marketing year concerned.
6. Within two working days after issuing an acknowledgment of receipt, the competent authority of the Member State shall inform the Commission thereof, using the model table set out in the Annex. If applicable, a separate table shall be used for each product and each marketing year concerned.
Article 9
Eligibility for the restructuring aid
1. Without prejudice to the provisions of Article 10, the competent authority of the Member State shall decide on the eligibility of an application for restructuring aid and shall inform the applicant of its decision within 30 working days upon reception of the complete application, but at least 10 working days before the deadline provided for in Article 5(1) of Regulation (EC) No 320/2006.
2. For the application to be considered eligible, the restructuring plan shall:
(a)
include a summary of the main objectives, the measures and actions as well as the estimated costs of these measures and actions, the financial plan and the time schedules;
(b)
specify for each factory concerned the amount of quota to be renounced, which shall be lower than or equal to the production capacity to be fully or partially dismantled;
(c)
include an attestation that the production facilities will be fully or partially dismantled and removed from the production site;
(d)
take into account the losses or costs involved, between the aid referred to in point (b) of paragraph 3 of Article 4 of Regulation (EC) No 320/2006, the closure and dismantling of the facilities referred to in point (c) of that paragraph, the investments referred to in point (e) of that paragraph, the social plan referred to in point (f) of that paragraph and the environmental plan referred to in point (g) of that paragraph;
(e)
clearly determine all the actions and costs financed by the restructuring fund and, if appropriate, the other related elements intended to be financed by other Community funds.
3. If the conditions set out in paragraph 2 are not satisfied, the Member State shall inform the applicant of the reasons for this and fix a deadline within the time-limit referred to in Article 4(1) of Regulation (EC) No 320/2006, by which the restructuring plan may be adjusted accordingly.
The Member State shall decide on the eligibility of the adjusted application within 15 working days after the deadline referred to in the first subparagraph, but at least 10 working days before the deadline provided for in Article 5(1) of Regulation (EC) No 320/2006.
If the adjusted application is not presented in due time or is considered ineligible, the application for restructuring aid shall be rejected and the Member State shall inform the applicant and the Commission thereof within five working days. The lodging of a new application from the same applicant shall be subject to the chronological order referred to in Article 8.
4. Where an application is considered eligible, the Member State shall notify the Commission within two working days after its decision, using the model table set out in the Annex.
5. By way of derogation from paragraphs 1, 3 and 4, for the 2006/2007 marketing year, the Member State shall decide on the eligibility of an application or an adjusted application at least eight working days before the deadline provided for in Article 5(1) of Regulation (EC) No 320/2006 and notify its decision to the Commission on the same day.
Article 10
Granting of the restructuring aid
1. The Commission shall establish a list of the complete applications for restructuring aid in the chronological order of their lodging as stated by acknowledgments of receipt from the Member State concerned.
2. By the deadline provided for in Article 5(1) of Regulation (EC) No 320/2006, the Commission shall determine the estimated availability of the financial resources in the restructuring fund for all the applications concerning the following marketing year, or in the case of the applications for the 2006/2007 marketing year, the applications concerning that marketing year, received by the deadline set out in Article 4(1) of that Regulation and found eligible by the Member State, as well as all the aids related to them.
3. The Commission shall inform the Committee on the Agricultural Funds referred to in Article 41(1) of Council Regulation (EC) No 1290/2005 (5) on the decisions taken in accordance with paragraph 1 of this Article. For the 2006/2007 marketing year, the Commission shall inform the Funds Committee referred to in Article 13(1) of Council Regulation (EC) No 1258/1999 (6).
4. The Member States shall notify to the applicants the grant of the restructuring aid for their respective eligible restructuring plan by the deadline provided for in Article 5(1) of Regulation (EC) No 320/2006. A full copy of the approved restructuring plan shall be sent by the competent authority of the Member State to the Commission.
Article 11
Amendments to the restructuring plan
1. As soon as the restructuring aid is granted, the beneficiary shall carry out all measures detailed in the approved restructuring plan and respect the commitments included in its application for restructuring aid.
2. Any amendment to an approved restructuring plan shall be agreed by the Member State on the basis of a request from the undertaking concerned:
(a)
explaining the reasons and implementing problems encountered;
(b)
presenting the adjustments or new measures proposed and the expected effects;
(c)
detailing the financial and the timing implications.
The amendments may not modify the total amount of the restructuring aid to be granted or the temporary restructuring amounts to be paid in accordance with Article 11 of Regulation (EC) No 320/2006.
The Member State shall notify the amended restructuring plan to the Commission.
Article 12
Withdrawal or postponement of a restructuring application
1. Eligible applications for which the restructuring aid cannot be granted for the marketing year for which the renunciation of quota has been requested may be withdrawn by the applicant within two months after the deadline provided for in Article 5(1) of Regulation (EC) No 320/2006.
2. If the undertaking concerned does not withdraw its application in accordance with paragraph 1, it shall, within the period referred to in that paragraph, adjust the restructuring plan concerned to take into account the amount of the restructuring aid for the following marketing year as laid down in Article 3(5) of Regulation (EC) No 320/2006.
For the purposes of Article 8(1), the date of lodging of the initial application shall be taken into account.
In the case referred to in the first subparagraph, the applicant shall postpone the renunciation of his quota for one marketing year and shall remain subject to the payment of the temporary restructuring amount provided for in Article 11 of Regulation (EC) No 320/2006.
CHAPTER IV
OTHER AIDS FROM THE RESTRUCTURING FUND
Article 13
Amounts of aid per Member State
1. By 31 October 2006 for the 2006/2007 marketing year, by 31 March 2007 for the 2007/2008 marketing year, by 31 March 2008 for the 2008/2009 marketing year and by 31 March 2009 for the 2009/2010 marketing year, the Commission shall fix the amounts attributed to each Member State under the restructuring fund for:
(a)
the aid for diversification provided for in Article 6 of Regulation (EC) No 320/2006;
(b)
the additional aid for diversification provided for in Article 7 of Regulation (EC) No 320/2006;
(c)
the transitional aid to certain Member States provided for in Article 9 of Regulation (EC) No 320/2006.
2. The amounts referred to in paragraph 1(a) and (b) shall be based on:
(a)
the amount of the aid for diversification provided for in Article 6(2) of Regulation (EC) No 320/2006 multiplied by the amount of sugar quota renounced in the Member State concerned for which a restructuring aid is to be granted as from:
-
the 2006/2007 marketing year in the case of the amounts determined in October 2006,
-
the 2007/2008 marketing year in the case of the amounts determined in March 2007,
-
the 2008/2009 marketing year in the case of the amounts determined in March 2008,
-
the 2009/2010 marketing year in the case of the amounts determined March 2009;
(b)
the amount of the additional aid for diversification corresponding to the highest of the percentages obtained in accordance with Article 7(1) of Regulation (EC) No 320/2006, and multiplied by the total amount of sugar quota referred to in point (a) of this paragraph, up to:
-
the 2006/2007 marketing year in the case of the amounts determined in October 2006,
-
the 2007/2008 marketing year in the case of the amounts determined in March 2007,
-
the 2008/2009 marketing year in the case of the amounts determined in March 2008,
-
the 2009/2010 marketing year in the case of the amounts determined in March 2009.
The amount resulting from the calculation referred to in the first subparagraph shall be reduced, if applicable, by all the amounts of the additional diversification aid previously fixed in accordance with the method set out in this point;
(c)
if applicable, the amounts of the transitional aid to certain Member States provided for in Article 9 of Regulation (EC) No 320/2006.
3. The amounts resulting from the method laid down in paragraph 2 shall be added to the respective amounts determined pursuant to paragraph 1 for the previous years.
Article 14
National restructuring programmes
1. By 31 December 2006 and by 30 September 2007, 2008 and 2009, the Member States concerned shall notify to the Commission their national restructuring programmes, detailing the measures to be undertaken within the limit of the amount of the aid for diversification determined pursuant to Article 13(2)(a), the amount of the additional aid for diversification determined pursuant to Article 13(2)(b) and the amount for transitional aid to certain member States referred to in Article 13(2)(c).
2. National restructuring programmes shall include at least the following elements:
(a)
a summary of the main objectives, measures, actions, costs, financing interventions and time schedules provided for in each of the regions concerned;
(b)
a description of the regions concerned and an analysis of the problems linked to the restructuring of the sugar sector;
(c)
a presentation of the purposes and the actions or measures foreseen, demonstrating their consistency with the eligible restructuring plans referred to in Article 9, the rural development policy in the regions concerned and other measures undertaken or foreseen in these regions, in particular under other Community funds;
(d)
a time schedule of all the actions or measures provided for and the criteria followed to differentiate them from similar actions or measures intended to be financed by other Community funds;
(e)
if appropriate, the amount of the additional aid for diversification to be granted to growers of sugar beet or cane giving up their production and the objective and non-discriminatory criteria to be followed to distribute that aid;
(f)
a financial plan detailing all the costs by action or measure and the timetable foreseen for the payments.
3. The actions or measures provided for in a national restructuring programme shall be implemented by 30 September 2010.
Article 15
Transitional aid to full-time refiners
1. A full-time refiner who, on 30 June 2006, was a refiner within the meaning of Article 7(4) of Regulation (EC) No 1260/2001 may apply for the transitional aid provided for in Article 8(2) of Regulation (EC) No 320/2006, to be granted by the Member State on whose territory it is situated.
2. The full-time refiner shall lodge the aid application, accompanied by the business plan referred to in Article 8(3) of Regulation (EC) No 320/2006, by a deadline to be determined by the Member State concerned, which shall be no later than 30 September 2007.
3. The business plan referred to in Article 8(3) of Regulation (EC) No 320/2006 shall include at least the following elements:
(a)
a summary of the main objectives, measures, actions, costs, financing interventions and time schedules;
(b)
a description and analysis of the problems encountered to adapt to the reform of the Community sugar market organisation;
(c)
a presentation of the actions or measures foreseen, demonstrating their consistency with other measures undertaken or foreseen under other Community funds in the region concerned under which the applicant is a beneficiary;
(d)
a time schedule of all the actions or measures foreseen and the criteria followed to differentiate them from similar actions or measures intended to be financed by other Community funds under which the applicant is a beneficiary;
(e)
a financial plan detailing all the costs by action or measure and the timetable foreseen for the payments.
4. Actions or measures foreseen in the business plan shall include one or more of the following elements: investments, dismantling of production facilities, contributions to operational costs, provisions for depreciation of equipment and other provisions considered to be necessary in order to adapt to the new situation.
5. The Member State shall decide on the eligibility of the business plan within the financial limits of Article 8(2) of Regulation (EC) No 320/2006 and shall notify the applicant and the Commission of its decision within 30 working days after the deadline referred to in paragraph 2 of this Article.
The Member State shall, within the same period, inform the Commission of the amounts to be awarded to each refiner and, if relevant, of the objective and non-discriminatory criteria used to distribute the aid between the different full-time refiners located on their territory.
6. The actions or measures provided for in the business plan shall be implemented by 30 September 2010.
CHAPTER V
PAYMENT OF THE AIDS
Article 16
Payment of the restructuring aid
1. The payment of the each instalment of the restructuring aid, as referred to in Article 10(4) of Regulation (EC) No 320/2006, shall be subject to the lodging of a security of an amount equal to 120 % of the amount of the instalment concerned.
2. In the case where the payments to growers and machinery contractors are carried out directly by the Member State in accordance with Article 19(2), the amount of the instalment concerned shall be reduced by the amounts to be paid to the growers and machinery contractors.
3. The restructuring aid shall not be paid later than 30 September 2011.
4. If appropriate, the Commission shall fix, by 31 January 2008, 2009, 2010 and 2011, the percentage of the first and second payments referred to in the second subparagraph of Article 10(4) of Regulation (EC) No 320/2006, as well as the provisional date for the second payment.
Article 17
Payment of the aid for diversification, the additional aid for diversification and the transitional aid to certain Member States
1. Within the limit of the amounts determined in accordance with Article 13(3), the payment of the aid for diversification, of the additional aid for diversification and of the transitional aid to certain Member States shall be made by the Member State to the beneficiaries twice a year, in March and September for the eligible expenses actually incurred, documented and controlled.
When a part of the additional aid for diversification is granted to sugar beet or cane growers giving up their production in accordance with Article 7(2) of Regulation (EC) No 320/2006, the Member State shall ensure that the growers concerned have definitively given up sugar beet or cane production.
2. The first payment may be made in September 2007. The aid for diversification, the additional aid for diversification and the transitional aid to certain Member States shall not be paid later than 30 September 2011.
Article 18
Payment of the transitional aid to full-time refiners
1. Within the limits referred to in Article 8(2) of Regulation (EC) No 320/2006, the payments of the transitional aid to full-time refiners, for eligible expenses on the basis of a business plan, shall be made by the Member State to the beneficiaries in two instalments:
(a)
40 % in September 2007;
(b)
60 % in March 2008.
The payment of each instalment shall be subject to the lodging of a security of an amount equal to 120 % of the amount of the instalment concerned.
2. By way of derogation from paragraph 1, the total expenses may be covered by one single payment in September 2007, provided that, before 15 September 2007:
(a)
all of the measures and actions foreseen in the business plan have been executed;
(b)
the final report referred to in Article 24(2) has been submitted;
(c)
the Member State has carried out the controls referred to in Article 25.
The payment shall in this case not be subject to the lodging of a security.
Article 19
Payment to growers and machinery contractors
1. No later than two months after having received the first instalment of the restructuring aid and on the basis of the information given by the Member State in accordance with Article 6(1), the undertakings shall make the payments to growers of beet, cane and chicory as well as to machinery contractors.
2. The payments to growers and machinery contractors may be carried out directly by the Member State, by way of reducing accordingly the amount of restructuring aid to be paid as provided for in Article 16(2), within the limit set out in paragraph 3 of this Article. In that case, the payments shall be made simultaneously with the payment of the part of the restructuring aid due to the undertaking.
3. The amount of the payment referred to in paragraph 1 and 2 shall not be higher than 50 % of the first instalment. If this amount does not cover the entire sum to be paid, the remaining part shall be paid:
(a)
no later than two months after the undertaking has received the second instalment of the aid, where the payment is carried out by the undertaking;
(b)
simultaneously with the payment of the second instalment of the restructuring aid to be paid to the undertaking, where the payment is carried out directly by the Member State.
Article 20
Decision to postpone payments
If the Commission decides to postpone the payments of the aid for diversification, of the additional aid for diversification, of the transitional aid to full-time refiners or of the transitional aid to certain Member States in accordance with Article 10(5) of Regulation (EC) No 320/2006, it shall inform the Member States of its decision before 31 May and 31 January.
Article 21
Currency
1. For the temporary restructuring fund, the amounts of commitments and payments by the Commission and the amounts of the temporary restructuring amount, as well as the amounts of expenditure in declarations of expenditure by the Member States shall be expressed and paid in euro.
2. For any payment made in a currency other than the euro, the exchange rate shall be the most recent exchange rate set by the European Central Bank prior to the first day of the month of the operative event for the payment concerned.
The operative event shall be the date of payment.
Article 22
Release of securities
1. The securities referred to in Articles 16(1) and 18(2) shall be released provided that:
(a)
all of the measures and actions foreseen in the restructuring plan, the national restructuring programmes and the business plan, as appropriate, have been implemented;
(b)
the final report referred to in Article 23(2) has been submitted;
(c)
the Member States have carried out the controls referred to Article 25;
(d)
for the restructuring aid, the aid to growers of sugar beet, cane and chicory and machinery contractors has been paid by the undertaking, unless these payments are carried out directly by the Member State in accordance with Article 19(2);
(e)
if applicable, the surplus levy relating to the out of quota sugar, isoglucose or inulin syrup in stocks at the beginning of the marketing year as from which the quota is renounced, has been paid.
2. By way of derogation paragraph 1, on request of the beneficiary, a security may be partially released for the amount of the expenditure actually incurred with regard to the actions and measures under the restructuring plan or business plan, provided that the inspection referred to in Article 25(1) has been effectively carried out and the inspection report referred to in Article 25(3) has been established.
3. Except in the case of force majeure, the security shall be forfeited if the conditions set out in paragraph 1 have not been fulfilled on 30 September 2011 at the latest.
CHAPTER VI
REPORTING, CONTROLS AND PENALTIES
Article 23
Reporting by the undertakings
1. Undertakings applying for restructuring aid shall inform the parties involved in the consultation process referred to in Article 1 of:
(a)
the decisions taken by the Member State in accordance with Articles 8, 9, 10 and 11;
(b)
what has actually been carried out each year under the approved restructuring plan.
2. Undertakings receiving an aid under the restructuring fund shall submit an annual progress report to the competent authority of the Member State that granted the aid, no later than three months after the end of the marketing year during which the corresponding measures are carried out.
The report shall detail the actions or measures taken and expenses incurred during the preceding marketing year, comparing them to the actions or measures and expenses detailed in the restructuring plan or the business plan concerned.
No later than three months after the implementation of all of the actions and measures foreseen under the restructuring plan or the business plan concerned, the undertaking shall submit to the competent authority of the Member State a final report summarising these actions and measures and the expenses incurred.
Article 24
Reporting by the Member States
1. Member States shall submit to the Commission annual progress reports concerning the restructuring plans, the national restructuring programmes and the business plans, no later than six months after the end of the marketing year concerned.
Those reports shall contain:
(a)
a description of actions or measures undertaken and respect of time-frame;
(b)
a statement of the facts according to at least one on-the-spot check per factory site for each restructuring plan or business plan;
(c)
a comparison between expenses foreseen and incurred;
(d)
an analysis of the involvements of other Community funds and their conformity with the aids financed by the restructuring fund;
(e)
if applicable, any changes to a restructuring plan, reasons therefore and implications for the future.
2. By 30 June 2011, the Member State shall submit to the Commission a final progress report comparing the actions or measures implemented and the expenses incurred to the ones foreseen in the restructuring plans, the national restructuring programmes and the business plans and explaining the reasons for deviations.
The final progress report shall also include a list of the penalties applied during the complete period as well as a statement that no levies, penalties or amounts related to the sugar, isoglucose or inulin syrup previously produced by factories partially or fully dismantled have been left unpaid.
Article 25
Controls
1. Each undertaking and production site in respect of which an aid is received under the restructuring fund shall be inspected by the competent authority of the Member State within three months after the deadline referred to in Article 23(2).
The inspection shall check that the restructuring plan or business plan is being complied with and shall verify the accuracy and completeness of the information given by the undertaking in the progress report. The first inspection under a restructuring plan shall also verify any additional information given by the undertaking in its application for restructuring aid, in particular the confirmation referred to in Article 4(2)(b) of Regulation (EC) No 320/2006.
2. The inspection shall in all cases cover the elements of the restructuring plan referred to in Article 4(3) of Regulation (EC) No 320/2006. For each inspection a report shall be established, fully describing the work undertaken, the main findings and any follow-up action required.
3. The inspection report shall be divided into the following parts:
(a)
a general part, containing, in particular, the following information:
(i)
the beneficiary and the production site subject to the inspection;
(ii)
the persons present;
(iii)
whether notice of the visit was given to the beneficiary and, if so, the period of advance notification;
(b)
for each of the elements of the restructuring plan listed in Article 4(3) of Regulation (EC) No 320/2006 and for each business plan, a part reflecting separately the checks carried out and containing, in particular, the following information:
(i)
the requirements and the standards subject to the inspection;
(ii)
the nature and extent of the checks carried out;
(iii)
the findings;
(iv)
the elements of the restructuring plan or business plan in relation to which non-compliances are found;
(c)
an evaluation part giving an assessment of the importance of the non-compliance in respect of each element on the basis of its severity, extent, degree of permanence and previous history with an indication of any non-compliance which has led or should lead to the adoption of measures in accordance with Article 26 or 27.
4. The beneficiary shall be informed of any non-compliance found.
5. The inspection report shall be finalised within one month after the inspection.
Article 26
Recovery
1. Without prejudice to paragraph 3, if a beneficiary does not comply with one or more of his commitments under the restructuring plan, the business plan or a national restructuring programme, as appropriate, the part of the aid granted in respect of the commitment(s) concerned shall be recovered except in the case of force majeure.
2. Interest shall be calculated for the period from the 60th day following that on which the beneficiary is notified of the obligation to repay aid to the day on which the aid is actually repaid.
The interest rate shall be the rate applied by the European Central Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union, in force on the first calendar day of the month in which the due date falls, increased by three and a half percentage points.
3. The Member State may grant the beneficiary a period of two months to achieve compliance with the commitment under the restructuring plan or the business plan.
Article 27
Penalties
1. If a beneficiary does not comply with one or more of his commitments under the restructuring plan, the business plan or the national restructuring programme, as appropriate, it shall be required to pay an amount equal to 10 % of the amount to be recovered under Article 26.
2. The penalties to be imposed pursuant to paragraph 1 shall not be imposed if the undertaking can demonstrate, to the satisfaction of the competent authority, that the non-compliance is due to force majeure and if it has clearly identified the non-compliance in the progress report submitted in accordance with Article 23(2).
3. If the non-compliance has been committed intentionally or as a result of grave negligence, the beneficiary shall be required to pay an amount equal to 30 % of the amount to be recovered under Article 26.
CHAPTER VII
FINAL PROVISION
Article 28
Entry into force
This Regulation shall enter into force the day of its publication in the Official Journal of the European Union.
It shall apply from 1 July 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 June 2006.
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*****
COMMISSION REGULATION (EEC) No 2439/87
of 12 August 1987
re-establishing the levying of customs duties on glass inners for vacuum flasks, falling within heading No 70.12, originating in India, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3924/86 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3924/86 of 16 December 1986 applying generalized tariff preferences for 1987 in respect of certain industrial products originating in developing countries (1), and in particular Article 15 thereof,
Whereas, pursuant to Articles 1 and 12 of Regulation (EEC) No 3924/86, suspension of customs duties shall be accorded to each of the countries or territories listed in Annex III other than those listed in column 4 of Annex I, within the framework of the preferential tariff ceiling fixed in column 9 of Annex I;
Whereas, as provided for in Article 13 of that Regulation, as soon as the individual ceilings in question are reached at Community level, the levying of customs duties on imports of the products in question originating in each of the countries and territories concerned may at any time be re-established;
Whereas, in the case of glass inners for vacuum flasks, falling within heading No 70.12, originating in India, the individual ceiling was fixed at 365 000 ECU; whereas, on 5 August 1987, imports of these products into the Community originating in India reached the ceiling in question after being charged thereagainst; whereas it is appropriate to re-establish he levying of customs duties in respect of the products in question against India,
HAS ADOPTED THIS REGULATION:
Article 1
As from 16 August 1987, the levying of customs duties, suspended pursuant to Regulation (EEC) No 3924/86, shall be re-established on imports into the Community of the following products originating in India:
1.2.3 // // // // Order No // CCT heading No and NIMEXE code // Description // // // // 10.0760 // 70.12 (70.12-10, 20) // Glass inners for vacuum flasks or for other vacuum vessels // // //
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, 12 August 1987.
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Commission Decision
of 5 September 2003
setting the definitive financial allocations to the Member States for the 2002/2003 marketing year, in respect of a number of hectares, for the purposes of restructuring and converting vineyards under Council Regulation (EC) No 1493/1999
(notified under document number C(2003) 3147)
(2003/638/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine(1), as last amended by Regulation (EC) No 806/2003(2), and in particular Article 14 thereof,
Whereas:
(1) The rules for the restructuring and conversion of vineyards are laid down in Council Regulation (EC) No 1493/1999 and Commission Regulation (EC) No 1227/2000 laying down detailed rules for the application of Regulation (EC) No 1493/1999 on the common organisation of the market in wine(3), as last amended by Regulation (EC) No 1203/2003(4), in particular on production potential.
(2) The detailed rules on financial planning and participation in financing the restructuring and conversion scheme laid down in Regulation (EC) No 1227/2000 stipulate that the references to a given financial year refer to the payments actually made by the Member States between 16 October and the following 15 October.
(3) In accordance with Article 14(1) of Regulation (EC) No 1493/1999, the Commission makes initial allocations to Member States each year on the basis of objective criteria, taking account of particular situations and needs and the efforts to be undertaken in the light of the scheme's objective.
(4) The Commission fixed the indicative financial allocations for the 2002/2003 marketing year in Commission Decision 2002/666/EC(5).
(5) In accordance with Article 14(2) of Regulation (EC) No 1493/1999, initial allocations must be adapted on the basis of actual expenditure and revised expenditure forecasts notified by the Member States, taking into account the objective of the scheme and subject to the funds available.
(6) Under Article 17(1) and (3) of Regulation (EC) No 1227/2000, Member States' expenditure incurred and validated is restricted to the allocations laid down in Decision 2002/666/EC. For this financial year that restriction applies to Spain, France, Italy, Austria and Portugal.
(7) Under Article 16(1)(c) of Regulation (EC) No 1227/2000, Member States may submit a request for subsequent financing in the current financial year. Under Article 17(3) of that Regulation, such a request is to be accepted for Member States that have expended their initial allocation on a pro rata basis using the appropriations available after deducting, for all Member States, the sum of the amounts notified in accordance with Article 16(1)(a) and (b) of that Regulation and corrected where applicable in accordance with Article 17(1) and (3), from the total amount allocated to the Member States. For this financial year that provision applies to Spain, France, Italy, Austria and Portugal.
(8) Article 17(1) and (2) applies to Luxembourg for this financial year.
(9) Article 17(4) does not apply to any Member State for this financial year.
(10) The Commission has received additional information from Spain as regards the number of hectares allocated to it by Decision 2002/666/EC. As a result of that information, the area allocated to that Member State should be corrected,
HAS ADOPTED THIS DECISION:
Article 1
The definitive financial allocations to the Member States for the 2002/2003 marketing year, in respect of a number of hectares, for the restructuring and conversion of vineyards under Regulation (EC) No 1493/1999, for the 2003 financial year, are set out in the Annex hereto.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 5 September 2003.
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COMMISSION REGULATION (EC) No 1827/97 of 22 September 1997 on the sale by the procedure laid down in Regulation (EEC) No 2539/84 of beef held by certain intervention agencies and intended for supplying the Canary Islands and repealing Regulation (EC) No 483/97
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 2222/96 (2), and in particular Article 7 (3) 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 last amended by Regulation (EC) No 2348/96 (4), and in particular Article 3 (2) thereof,
Whereas certain intervention agencies hold substantial stocks of beef bought into intervention; whereas an extension of the storage period should be avoided on account of the ensuing high costs;
Whereas Commission Regulation (EC) No 1264/97 of 1 July 1997 establishing a forecast balance for the supply to the Canary Islands of live bovine animals and beef and veal products (5) fixes the forecast supply balance for frozen meat of bovine animals for the period 1 July 1997 to 30 June 1998; whereas, in the light of traditional trade patterns, beef should be released from intervention for the purpose of supplying the Canary Islands during that period;
Whereas Commission Regulation (EEC) No 2539/84 of 5 September 1984 laying down detailed rules for certain sales of frozen beef held by the intervention agencies (6), as last amended by Regulation (EEC) No 608/96 (7), provides for the possibility of a two-stage procedure for the sale of beef from intervention;
Whereas, in order to ensure that the tendering procedure is consistent and uniform, measures should be adopted in addition to those laid down in Commission Regulation (EEC) No 2173/79 (8), as last amended by Regulation (EC) No 2417/95 (9);
Whereas Article 3 of Commission Regulation (EC) No 2790/94 of 16 November 1994 laying down common detailed rules for the implementation of Council Regulation (EEC) No 1601/92 concerning specific measures for the Canary Islands with regard to certain agricultural products (10), as last amended by Regulation (EEC) No 2883/94 (11), provides for the use of aid certificates issued by the competent Spanish authorities for supplies from the Community; whereas, in order to improve the operation of the abovementioned arrangements, certain derogations from that Regulation should be laid down, in particular, with regard to the application for and the issue of aid certificates;
Whereas the sale should be conducted in accordance with Commission Regulations (EEC) No 2539/84, (EEC) No 3002/92 (12), as last amended by Regulation (EC) No 770/96 (13), and (EC) No 2790/94, subject to certain special exceptions on account of the particular use to which the products in question are to be put;
Whereas it is necessary to provide for the lodging of a security to guarantee that the beef arrives at the intended destination;
Whereas Commission Regulation (EC) No 483/97 (14) should be repealed;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. A sale shall be organized of approximately:
- 36 tonnes of boneless beef held by the Spanish intervention agency,
- 359 tonnes of boneless beef held by the Danish intervention agency,
- 1 000 tonnes of boneless beef held by the French intervention agency,
- 1 000 tonnes of boneless beef held by the Irish intervention agency,
- 500 tonnes of bone-in beef held by the Austrian intervention agency,
- 200 tonnes of bone-in beef held by the Belgian intervention agency,
- 1 000 tonnes of bone-in beef held by the Danish intervention agency,
- 500 tonnes of bone-in beef held by the German intervention agency,
- 1 000 tonnes of bone-in beef held by the Spanish intervention agency,
- 800 tonnes of bone-in beef held by the French intervention agency,
- 500 tonnes of bone-in beef held by the Irish intervention agency,
- 100 tonnes of bone-in beef held by the Italian intervention agency,
- 500 tonnes of bone-in beef held by the Netherlands intervention agency,
- 800 tonnes of bone-in beef held by the Portuguese intervention agency,
- 40 tonnes of bone-in beef held by the Swedish intervention agency.
2. This meat shall be sold for delivery to the Canary Islands pursuant to Regulation (EC) No 1264/97.
3. Subject to the provisions of this Regulation, the sale shall take place in accordance with Regulations (EEC) No 2539/84, (EEC) No 3002/92 and (EC) No 2790/94.
4. The qualities and the minimum prices referred to in Article 3 (1) of Regulation (EEC) No 2539/84 are set out in Annex I hereto.
5. The intervention agencies shall sell first those products in each product group which have been in storage longest.
Particulars of the quantities and places where the products are stored shall be made available to interested parties at the addresses given in Annex II.
6. Only those tenders shall be taken into consideration which reach the intervention agencies concerned no later than 12 noon on 30 September 1997.
7. 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 6.
Article 2
1. The tender or the purchase application shall be submitted by an operator entered in the register referred to in Article 5 (1) of Regulation (EC) No 2790/94 or by an operator duly authorized by the aforementioned operator to act on his behalf.
2. After receiving a tender or purchase application, the intervention agency shall only conclude the contract after having checked with the competent Spanish agencies referred to in Annex III that the quantity concerned is available within the forecast supply balance.
3. The Spanish agency shall immediately reserve for the applicant the quantity requested until receipt of the application for the relevant aid certificate. Notwithstanding Article 6 (1) of Regulation (EC) No 2790/94, the certificate application must be accompanied only by the original purchase invoice issued by the seller intervention agency or by a certified copy thereof.
The application for the aid certificate shall be submitted not later than seven working days after the date on which the purchase invoice is made out.
4. Notwithstanding Article 3 (1) of Regulation (EC) No 2790/94, the aid shall not be granted for meat sold pursuant to this Regulation.
5. Notwithstanding Article 3 (4) (b) of Regulation (EC) No 2790/94, box 24 of the aid certificate application and the aid certificate shall contain the entry: 'aid certificate for use in the Canary Islands - no aid to be paid`.
Article 3
Notwithstanding Article 4 (2) of Regulation (EEC) No 2539/84, purchase applications may be submitted from the 10th working day following the date referred to in Article 1 (6).
Article 4
The security provided for in Article 5 (1) of Regulation (EEC) No 2539/84 shall be:
- ECU 3 000 per tonne for boneless beef (except fillets),
- ECU 6 300 per tonne for fillets,
- ECU 1 850 per tonne for bone-in beef.
Delivery of the products concerned to the Canary Islands not later than 30 June 1998 shall be a primary requirement within the meaning of Article 20 of Commission Regulation (EEC) No 2220/85 (15). Proof of compliance with this requirement must be provided not later than two months after completion of formalities with the competent authorities in the Canary Islands for the delivery concerned.
Article 5
The removal order referred to in Article 3 (1) (b) of Regulation (EEC) No 3002/92 and the T 5 control copy shall contain the entry:
Carne de intervención destinada a las islas Canarias - Sin ayuda [Reglamento (CE) n° 1827/97]
Interventionskød til De Kanariske Øer - uden støtte (forordning (EF) nr. 1827/97)
Interventionsfleisch für die Kanarischen Inseln - ohne Beihilfe (Verordnung (EG) Nr. 1827/97)
ÊñÝáò áðü ôçí ðáñÝìâáóç ãéá ôéò Êáíáñßïõò ÍÞóïõò - ÷ùñßò åíéó÷ýóåéò [Êáíïíéóìüò (ÅÊ) áñéè. 1827/97]
Intervention meat for the Canary Islands - without the payment of aid (Regulation (EC) No 1827/97)
Viandes d'intervention destinées aux îles Canaries - Sans aide [règlement (CE) n° 1827/97]
Carni in regime d'intervento destinate alle isole Canarie - senza aiuto [regolamento (CE) n. 1827/97]
Interventievlees voor de Canarische Eilanden - zonder steun (Verordening (EG) nr. 1827/97)
Carne de intervenção destinada às ilhas Canárias - sem ajuda [Regulamento (CE) nº 1827/97]
Kanariansaarille osoitettu interventioliha - ilman tukea (Asetus (EY) N:o 1827/97)
Interventionskött för Kanarieöarna - utan bidrag (Förordning (EG) nr 1827/97).
Article 6
Regulation (EC) No 483/97 is hereby repealed.
Article 7
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 September 1997.
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COMMISSION REGULATION (EC) No 1155/2009
of 27 November 2009
entering a name in the register of protected designations of origin and protected geographical indications (Truskawka kaszubska/kaszëbskô malëna (PGI))
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 first subparagraph of Article 7(4) thereof,
Whereas:
(1)
Pursuant to the first subparagraph of Article 6(2) of Regulation (EC) No 510/2006, Poland’s application to register the name ‘Truskawka kaszubska’/‘kaszëbskô malëna’ was published in the Official Journal of the European Union (2).
(2)
As no statement of objection under Article 7 of Regulation (EC) No 510/2006 has been received by the Commission, that name should therefore be entered in the register,
HAS ADOPTED THIS REGULATION:
Article 1
The name contained in the Annex to this Regulation is hereby entered in the Register.
Article 2
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 November 2009.
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COMMISSION REGULATION (EC) No 1506/96 of 29 July 1996 amending Regulation (EC) No 3010/94 fixing the aid for the supply of products processed from fruit and vegetables to the Canary Islands under the arrangements provided for in Articles 2 and 3 of Council Regulation (EEC) No 1601/92
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1601/92 of 15 June 1992 concerning specific measures for the Canary Islands with regard to certain agricultural products (1), as last amended by Commission Regulation (EC) No 2537/95 (2), and in particular Article 3 (4) thereof,
Whereas Commission Regulation (EC) No 3010/94 (3), as amended by Commission Regulation (EC) No 1363/95 (4), fixes the aid for the supply of products processed from fruit and vegetables from the Community market to the Canary Islands pursuant to Article 3 (2) of Regulation (EEC) No 1601/92;
Whereas the above aids should be adjusted in view of the trend in supply conditions from the world market resulting in particular from the amendment of the tariff arrangements on imports; whereas it is appropriate to calculate the aid for each product on the basis of the average of the customs duties applicable to the various compositions of the product in accordance with the tariff nomenclature; whereas this measure should take effect from the date the forecast supply balance applies;
Whereas the measures provided for in this Regulation are in accordance with the Management Committee for Products Processed from Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EC) No 3010/94 is replaced by the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply from 1 July 1996.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 July 1996.
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COMMISSION REGULATION (EC) No 1090/2008
of 31 October 2008
establishing a prohibition of fishing for haddock in Norwegian waters of I and II by vessels flying the flag of Poland
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the common fisheries policy (1), and in particular Article 26(4) thereof,
Having regard to Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to common fisheries policy (2), and in particular Article 21(3) thereof,
Whereas:
(1)
Council Regulation (EC) No 40/2008 of 16 January 2008 fixing for 2008 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks applicable in Community waters and for Community vessels, in waters where catch limitations are required (3), lays down quotas for 2008.
(2)
According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein have exhausted the quota allocated for 2008.
(3)
It is therefore necessary to prohibit fishing for that stock and its retention on board, transhipment and landing,
HAS ADOPTED THIS REGULATION:
Article 1
Quota exhaustion
The fishing quota allocated to the Member State referred to in the Annex to this Regulation for the stock referred to therein for 2008 shall be deemed to be exhausted from the date set out in that Annex.
Article 2
Prohibitions
Fishing for the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein shall be prohibited from the date set out in that Annex. It shall be prohibited to retain on board, tranship or land such stock caught by those vessels after that date.
Article 3
Entry into force
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 October 2008.
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COUNCIL REGULATION (EEC) N° 1196/90
of 7 May 1990
on the stabilization of the Community production of mandarins
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 Act of Accession of Spain and Portugal, and in particular Article 234 (3) 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 a feature of the Community market for mandarins is imbalance between supply and demand; whereas that situation stems from falling demand for the product from consumers;
Whereas market stabilization measures alone are not likely to remedy such difficulties; whereas action should also be taken in respect of the production potential in order to take account of the fact that consumers are turning away from the product, such action needing to be taken for a period of three marketing years;
Whereas, in order to help achieve that end, producers should be encouraged to refrain from producing mandarins; whereas, to that end, provision should be made for a premium, to be paid once only, to be granted to producers who undertake to grub up their mandarin orchard and not to replant mandarin trees; whereas this obligation should be varied depending upon the area of the holdings;
Whereas the premium must be determined taking account of both the cost of grubbing-up and the loss of income;
Whereas the aim of the grubbing-up premium is to achieve the objectives laid down in Article 39 of the Treaty; whereas provision should be made for Community financing of this measure by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund,
Whereas this action should be implemented in Portugal as from the beginning of the 1990/91 marketing year,
HAS ADOPTED THIS REGULATION:
Article 1
During the 1990/91, 1991/92 and 1992/93 marketing years, Community mandarin producers shall qualify, on application and under the conditions laid down in this Regulation, for a premium, to be granted once only, for the grubbing-up of mandarin trees.
Article 2
The premium shall be granted subject to an undertaking in writing from the recipient:
(a) to grub up or have grubbed up, at one time, before 1 April of a given year:
- all the mandarin trees on his holding if the latter's mandarin grove covers less than 10 hectares,
- at least half the mandarin trees on his holding if the latter's mandarin grove covers 10 hectares or more;
(b) to refrain from planting any mandarin trees.
Article 3
The premium shall be fixed account being taken in particular of grubbing-up costs and the loss of income to producers carrying out grubbing-up operations.
Article 4
The Member States shall check whether recipients of the premium have fulfilled the undertakings laid down in Article 2. They shall take any further measures in particular to ensure compliance with the provisions of the premium scheme. They shall inform the Commission of the measures taken.
Article 5
The measures provided for in this Regulation shall be deemed intervention intended to stabilize the agricultural markets within the meaning of Article 3 of Regulation (EEC) No 729/70 of the Council of 21 April 1970 on the financing
of the common agricultural policy (1), as last amended by
Regulation (EEC) N° 2048/88 (2). They shall be financed by the EAGGF Guarantee Section.
Article 6
The premium shall be determined and the detailed rules for the application of this Regulation shall be adopted in accordance with the procedure laid down in Article 33 of Regulation (EEC) No 1035/72 of the Council of 18 May
1972 on the common organization of the market in fruit
and vegetables (3) as last amended by Regulation (EEC) No 1193/90 (4).
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 in Portugal as from its entry into force.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 May 1990.
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*****
COUNCIL REGULATION (EEC) No 3196/84
of 12 November 1984
opening, allocating and providing for the administration of a Community tariff quota for certain plywoods of coniferous species, falling within heading No ex 44.15 of the Common Customs Tariff (1985)
THE COUNCIL OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas the Community has undertaken to open an annual Community tariff quota of at least 600 000 m3 for certain plywoods of coniferous species, falling within heading No ex 44.15 of the Common Customs Tariff; whereas, under Protocol 11 to the Act of Accession (1), the Community is required to open each year autonomous nil duty Community tariff quotas for the same products, the volume thereof to be decided annually when it is established that all possibilities of supply on the internal market of the Community have been exhausted during the period for which the quotas are open; whereas the condition laid down by the said Protocol does not seem to be met at the moment; whereas, in these circumstances, it is appropriate to limit oneself in the first stage to the contractual volume of 600 000 m3; whereas the fixing of the quota volume at this level does not exclude, moreover, recourse to the provisions of the abovementioned Protocol 11 during the quota period;
Whereas, to take more precise account of future, trends in imports of the products concerned, the quota should be divided into two tranches, the first being allocated among all the Member States and the second held as a reserve to cover the subsequent requirements of Member States which have exhausted their initial shares; whreas, in order to offer importers some degree of security, the first tranche of the quota should be fixed at a relatively high level, or about 99 % of its full amount; whereas, on the basis of Member States' estimates for their needs, the initial shares may be fixed as set out in Article 2;
Whereas Member States may use up their initial shares at different rates; whereas, to provide for this eventuality and to avoid disruption of supplies, any Member State which has almost used up its initial share should draw an additional share from the reserve; whereas, each time its additional share is almost used up, a Member State should draw an additional share, and so on as many times as the reserve allows; whereas the initial and additional shares should be valid until the end of the quota period; whereas this form of administration requires close collaboration between Member States and the Commission, which latter must, in particular be able to keep a record of the extent to which the quota has been used up and to inform the Member States accordingly;
Whereas if, at a given date in the quota period, a considerable quantity of a Member State's initial share remains unused, it is essential that that Member State should return a significant proportion to the reserve, so as to avoid a part of the quota remaining unused in one Member State when it could be used in others;
Whereas, since the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg are united within and jointly represented by the Benelux Economic Union, any measure concerning the administration of the shares allocated to that economic union may be carried out by any one of its members,
HAS ADOPTED THIS REGULATION:
Article 1
1. From 1 January to 31 December 1985, a Community tariff quota of 600 000 m3 shall be opened for the following products falling within heading No ex 44.15 of the Common Customs Tariff:
(a) plywood of coniferous species, without the addition of other substances, of a thickness greater than 8,5 mm, the faces of which are not further prepared than the peeling process;
(b) plywood of coniferous species, without the addition of other substances, sanded, and of a thickness greater than 18,5 mm.
2. Imports of the products in question may not be charged against this tariff quota if they are already free of customs duties under other preferential tariff arrangements.
3. The Common Customs Tariff duty shall be totally suspended within the limits of the above quota.
Within the limits of this tariff quota, Greece shall apply duties calculated in accordance with the relevant provisions set out in the 1979 Act of Accession.
Article 2
1. The tariff quota referred to in Article 1 (1) shall be divided into two tranches.
2. A first tranche of 595 000m3 shall be allocated among the Member States; Member States' shares, which, subject to Article 5, shall be valid until 31 December 1985, shall be as follows:
1.2 // // (cubic metres) // Benelux // 154 000 // Denmark // 65 000 // Germany // 94 000 // Greece // 50 // France // 11 000 // Ireland // 8 950 // Italy // 24 000 // United Kingdom // 238 000
3. The second tranche of 5 000 m3 shall constitute the reserve.
Article 3
1. If 90 % or more of a Member State's initial share as fixed in Article 2 (2), or of that share minus any portion returned to the reserve where Article 5 has been applied has been used up, that Member State shall forthwith, by notifying the Commission, draw a second share, to the extent that the reserve so permits, equal to 10 % of its initial share, rounded up as necessary to the next whole number.
2. If, after its initial share has been exhausted, 90 % or more of the second share drawn by a Member State has been used up, that Member State shall, in the manner and to the extent provided in paragraph 1, draw a third share equal to 5 % of its initial share, rounded up as necessary to the next whole number.
3. If, after its second share has been exhausted, 90 % or more of the third share drawn by a Member State has been used up, that Member State shall, in the manner and to the extent provided in paragraph 1, draw a fourth share equal to the third.
This procedure shall apply until the reserve is used up.
4. By way of derogation from paragraphs 1, 2 and 3, Member States may draw lesser shares than those specified therein if there are grounds for believing that those specified may not be used in full. They shall inform the Commission of their reasons for applying this paragraph.
Article 4
Additional shares drawn pursuant to Article 3 shall be valid until 31 December 1985.
Article 5
Member States shall return to the reserve, not later than 1 October 1985, the unused portions of their initial shares which, on 15 September 1985, are in excess of 20 % of the initial amounts. They may return a greater portion if there are grounds for believing that such portion may not be used in full.
Member States shall notify the Commission, not later than 1 October 1985, of the total quantities of the products in question imported up to 15 September 1985 and charged against the Community quota and of any portion of their initial shares returned to the reserve.
Article 6
The Commission shall keep and account of the shares opened by the Member States pursuant to Articles 2 and 3 and, as soon as it has been notified, shall inform each State of the extent to which the reserve has been used up.
It shall inform the Member States, not later than 5 October 1985, of the amount still in reserve after amounts have been returned thereto pursuant to Article 5.
It shall ensure that the drawing which exhausts the reserve does not exceed the balance available and, to this end, shall notify the amount of that balance to the Member State making the last drawing.
Article 7
1. Member States shall take all appropriate measures to ensure that additional shares drawn pursuant to Article 3 are opened in such a way that imports may be charged without interruption against their aggregate shares of the Community quota.
2. Member States shall ensure that importers of the products in question have free access to the shares allocated to them.
3. Member States shall charge imports of the products in question against their shares as and when the products are entered with the customs authorities for free circulation. 4. The extent to which a Member State has used up its share shall be determined on the basis of imports charged against that share in accordance with paragraph 3.
Article 8
At the Commission's request, Member States shall inform it of the imports actually charged against their shares.
Article 9
Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with.
Article 10
This Regulation shall enter into force on 1 January 1985.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 November 1984.
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COUNCIL DECISION of 9 September 1991 adopting a specific research and technological development programme in the field of biomedicine and health (1990 to 1994) (91/505/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 130q (2) thereof,
Having regard to the proposal from the Commission (1),
In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas, by Decision 90/221/Euratom, EEC (4), the Council adopted a third framework programme for Community activities in the field of research and technological development (1990 to 1994), specifying, inter alia, the activities to be pursued for contributing to the development of Europe's potential for understanding and using the properties and structures of living matter; whereas this Decision should be taken in the light of the grounds set out in the preamble to that Decision;
Whereas Article 130k of the Treaty stipulates that the framework programme shall be implemented through specific programmes developed within each activity;
Whereas basic research in the field of biomedicine and health must be encouraged throughout the Community;
Whereas, in addition to the specific programme concerning human resources and mobility, it might be necessary to encourage the training of research workers in the context of this programme;
Whereas matters relating to biomedical ethics should be studied, with particular reference to the 'recommendations guiding physicians in biomedical research involving human subjects' adopted by the 18th World Medical Assembly in Helsinki in June 1964 and subsequently amended in Tokyo in 1975, Venice in 1983 and Hong Kong in 1989;
Whereas, pursuant to Article 4 and Annex I of Decision 90/221/Euratom, EEC, the amount deemed necessary for the whole framework programme includes an amount of ECU 57 million for the centralized dissemination and exploitation of results, to be divided up in proportion to the amount envisaged for each specific programme;
Whereas Decision 90/221/Euratom, EEC provides that a particular aim of Community research must be to strengthen the scientific and technological basis of European industry and to encourage it to become more competitive at international level; whereas it also provides that Community action is justified where research contributes, inter alia, to the strengthening of the economic and social cohesion of the Community and to the promotion of its overall harmonious development, while being consistent with the pursuit of scientific and technical excellence; whereas the programme in the field of biomedicine and health should contribute to the achievement of these objectives;
Whereas small and medium-sized enterprises (SMEs) should be involved to the maximum extent possible in this programme; whereas account should be taken of their special requirements without prejudice to the scientific and technical quality of the programme;
Whereas it is necessary, as Annex II to Decision 90/221/Euratom, EEC provides, to contribute to improving the efficacy of medical and health research and development in the Member States, in particular by better coordination of the Member States' research and development activities and application of the results through Community cooperation and a pooling of resources;
Whereas, in the context of this programme, an assessment should be made of economic and social impact as well as of any technological risks;
Whereas the Scientific and Technical Research Committee (Crest) has been consulted,
HAS ADOPTED THIS DECISION:
Article 1
A specific research and technological development programme for the Community in the field of biomedicine and health, hereinafter referred to as 'the programme', as defined in Annex I, is hereby adopted for the period 9 September 1991 to 31 December 1994.
Article 2
1. The funds estimated as necessary for the execution of the programme amount to ECU 131,67 million, including expenditure on staff and administration amounting to ECU 13 million.
2. An indicative breakdown of funds is set out in Annex II.
3. Should the Council take a decision in implementation of Article 1 (4) of Decision 90/221/Euratom, EEC, this Decision shall be adapted accordingly.
Article 3
Detailed rules for the implementation of the programme, including the amount of the Community's financial contribution, are set out in Annex III.
Article 4
1. In the second year of implementation of the programme, the Commission shall review it and send a report on the results of its review to the European Parliament and the Council; the report shall be accompanied, where necessary, by proposals for amendment of the programme.
2. At the end of the programme, an evaluation of the results achieved shall be conducted for the Commission by a group of independent experts. This group's report, together with any comments by the Commission, shall be submitted to the European Parliament and the Council.
3. The reports referred to in paragraphs 1 and 2 shall be established having regard to the objectives set out in Annex I to this Decision and in accordance with Article 2 (4) of Decision 90/221/Euratom, EEC.
Article 5
1. The Commission shall be responsible for the implementation of the programme.
2. Contracts concluded by the Commission shall govern the rights and obligations of each party, in particular the arrangements for the dissemination, protection and exploitation of research results, in accordance with the provisions adopted pursuant to the second paragraph of Article 130k of the Treaty.
3. A work programme shall be drawn up in accordance with the objectives set out in Annex I and updated where necessary. It shall set out the detailed objectives and types of projects to be undertaken, and the financial arrangements to be made for them. The Commission shall make calls for proposals for projects on the basis of the work programme.
Article 6
The Commission shall be assisted by a Committee of an advisory nature composed of representatives of the Member States and chaired by the representative of the Commission.
The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft, within a time limit which the chairman may lay down according to the urgency of the matter to be dealt with, taking a vote thereon should the need arise.
The opinion shall be entered in the minutes; moreover, each Member State shall have the right to request that its position be recorded in the said minutes.
The Commission shall take the greatest account of the opinion delivered by the Committee. It shall inform the Committee of the way in which it took the said opinion into account.
Article 7
1. The procedure laid down in Article 6 shall apply in particular to:
- the preparation and updating of the work programme referred to in Article 5 (3),
- the contents of the calls for proposals,
- the assessment of the research projects and concerted action provided for in Annex III and the estimated amount of the Community's contribution to them where this amount exceeds ECU 0,1 million per year,
- departures from the general rules set out in Annex III,
- the participation in any project by non-Community organizations, bodies and enterprises referred to in Article 8,
- any adaptation of the indicative breakdown of the amount set out in Annex II,
- the measures to be undertaken to evaluate the programme,
- arrangements for the dissemination, protection and exploitation of the results of research carried out under the programme.
2. Where, pursuant to the third indent of paragraph 1, the amount of the Community contribution is less than, or equal to ECU 0,1 million per year, the Commission shall inform the Committee of the research projects and of the outcome of their assessment.
The Commission shall also inform the Committee of the implementation of the accompanying measures referred to in Annex III.
Article 8
1. The Commission is hereby authorized to negotiate, in accordance with Article 130n of the Treaty, international agreements with third countries which are members of COST, particularly the member countries of EFTA and the countries of Central and Eastern Europe, with a view to associating them with the whole programme or a part of it and, as regards Area 3, with other third countries and international organizations with a view to associating them with the whole programme.
2. Bodies and enterprises established in non-Community European States may, on the basis of the criterion of mutual benefit, be allowed to become partners in a project undertaken within the programme. For projects in Area 3 of Annex I, this option may be extended to bodies and enterprises from other non-Community countries engaged in research in the area.
No contracting partner based outside the Community and participating as a partner in a project undertaken under the programme may benefit from Community financing for this programme. Such partner shall contribute to the general administrative costs.
Article 9
This Decision is addressed to the Member States. Done at Brussels, 9 September 1991.
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*****
COMMISSION DECISION
of 30 July 1984
on the reimbursement by the EAGGF Guidance Section to the French Republic of aids granted to producers' organizations in the fishing industry during 1982
(Only the French text is authentic)
(84/430/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3796/81 of 29 December 1981 on the common organization of the market in fishery products (1),
Having regard to Council Regulation (EEC) No 3140/82 of 22 November 1982 on granting and reimbursing aids granted by Member States to producers' organizations in the fishing industry (2), and in particular Article 10 (2) thereof,
Whereas the French Republic has made an application for reimbursement in connection with all its expenditure incurred in respect of aid granted during 1982 under Article 6 (1) of Regulation (EEC) No 3796/81;
Whereas this application is in accordance with the provisions of Commission Regulation (EEC) No 1273/72 of 20 June 1972 on claims for reimbursement of aids granted by Member States to producers' organizations in the fishing industry (3), and with the provisions of Commission Regulation (EEC) No 457/72 of 2 March 1972 defining the concept of administrative expenses of producers' organizations in the fishing industry (4);
Whereas an examination of the information provided shows that aids amounting to FF 167 679,06 were paid under the conditions laid down in Article 6 (1) of Regulation (EEC) No 3796/81;
Whereas the European Agricultural Guidance and Guarantee Fund Guidance Section should therefore reimburse 50 % thereof, i.e. FF 83 839,53;
Whereas the EAGGF Committee has been consulted on the financial aspects, and in particular as to the funds available,
HAS ADOPTED THIS DECISION:
Article 1
The contribution by the European Agricultural Guidance and Guarantee Fund Guidance Section towards the expenditure incurred by the French Republic during 1982 in respect of aids granted to producers' organizations in the fishing industry shall be FF 83 839,53.
Article 2
This Decision is addressed to the French Republic.
Done at Brussels, 30 July 1984.
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COMMISSION REGULATION (EEC) No 2082/91 of 16 July 1991 amending Regulation (EEC) No 2814/91 laying down detailed rules for the definition of lambs fattened as heavy carcases
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 1741/91 (2), and in particular Article 5 (9) thereof,
Having regard to Council Regulation (EEC) No 3901/89 of 12 December 1989 defining lambs fattened as heavy carcases (3), and in particular Article 1 (2) thereof,
Whereas detailed rules for the definition of lambs fattened as heavy carcases were adopted by Commission Regulation (EEC) No 2814/90 (4), as last amended by Regulation (EEC) No 361/91 (5); whereas Article 1 thereof lays down the provisions applicable with regard to the fattening of lambs after weaning, in particular where fattening takes place away from the recipient's holding; whereas, with a view to sound management, provision should be made for such fattening to be carried out only by a single fattener during the minimum period of 45 days referred to in Article 1 of Regulation (EEC) No 3901/89;
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
Regulation (EEC) No 2814/90 is hereby amended as follows:
1. The last subparagraph of Article 2 (1) is replaced by the following:
'In addition, where fattening takes place away from the recipient's holding, it may only be carried out by a single fattener during the minimum period of 45 days provided for in Regulation (EEC) No 3901/89. In that case, the declaration provided for in the first subparagraph shall be accompanied by an undertaking by the person in charge of the fattening premises to submit to the checks laid down with a view to verifying completion of the fattening operations.'
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply to premiums to be paid in respect of 1992 and subsequent marketing years. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 July 1991.
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COMMISSION REGULATION (EC) No 394/2009
of 13 May 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 14 May 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 May 2009.
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COMMISSION REGULATION (EEC) No 3109/89
of 16 October 1989
amending Regulation (EEC) No 4209/88 fixing, for the 1989 fishing year, the overall foreseeable level of imports for the products subject to the supplementary trade mechanism in the fisheries sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Act of Accession of Spain and Portugal, and in particular Articles 174 and 361 thereof,
Whereas Commission Regulation (EEC) No 4209/88 (1), has fixed for certain fishery products the overall foreseeable level of imports for the 1989 fishing year; whereas this foreseeable level includes, for each product in question, an annual quota for imports from third countries;
Whereas, as regards Spain, the quota for fresh or chilled hake of the genus Merluccius, initially laid down for the 1989 marketing year by Commission Regulation (EEC) No 4208/88 (2), as amended by Regulation (EEC) No 3108/89 (3), has been increased 2 000 tonnes by Regulation (EEC) No 3108/89; whereas it is consequently appropriate to adapt for that Member State the overall foreseeable level of imports of the product in question, set out in Regulation (EEC) No 4209/88;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fishery Products,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EEC) No 4209/88 is hereby amended as follows:
In the table in part A.1, '14 595' for the overall level of imports of fresh or chilled hake of the genus Merluccius falling within CN codes ex 0302 69 65 and ex 0304 10 99 is replaced by '16 595'.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 October 1989.
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COUNCIL DECISION
of 16 July 2007
appointing four Cypriot members and four Cypriot alternate members to the Committee of the Regions
(2007/542/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 Cypriot Government,
Whereas:
(1)
On 24 January 2006 the Council adopted Decision 2006/116/EC appointing the members and alternate members of the Committee of the Regions for the period from 26 January 2006 to 25 January 2010 (1).
(2)
Four members’ seats on the Committee of the Regions have become vacant following the end of the mandates of Mr ZAMPELAS, Mr SARIKAS, Mr IACOVOU and Mr ELENODOROU. Four alternate members’ seats on the Committee of the Regions have become vacant following the end of the mandates of Ms PERICLEOUS, Mr VIOLARIS, Mr MICHAEL and Mr KALLIS,
HAS DECIDED AS FOLLOWS:
Article 1
The following are hereby appointed members and alternate members of the Committee of the Regions for the remainder of the current term of office, which runs until 25 January 2010:
(a)
as members:
-
Mr Savvas ILIOFOTOU, Mayor of Strovolos, replacing Mr Michael ZAMPELAS,
-
Ms Eleni LOUCAIDOU, Municipal Councillor of Nicosia, replacing Mr Fidias SARIKAS,
-
Mr Savvas SAVVA, President of the Community Council of Alassa, replacing Mr Georgios IACOVOU,
-
Mr Michalis EVTHYMIOU, President of the Community Council of Koili, replacing Mr Spyros ELENODOROU,
(b)
as alternate members:
-
Mr Andreas MOISEOS, Mayor of Larnaca, replacing Mrs Barbara PERICLEOUS,
-
Mr Costas HADJIKAKOU, Municipal Councillor of Famagusta, replacing Mr Christakis VIOLARIS,
-
Mr Ioannis LAZARIDES, President of the Community Council of Psimolofou, replacing Mr Dimitris MICHAEL,
-
Mr Aris CONSTANTINOU, President of the Community Council of Astromeritis, replacing Mr Nikos KALLIS.
Article 2
This Decision shall take effect on the date of its adoption.
Done at Brussels, 16 July 2007.
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*****
COMMISSION REGULATION (EEC) No 678/89
of 16 March 1989
amending for the time Regulation (EEC) No 2729/88 laying down detailed rules for the application of Council Regulation (EEC) No 1442/88 on the granting, for the 1988/89 to 1995/96 wine years, of permanent abandonment premiums in respect of wine-growing areas
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1442/88 of 24 May 1988 on the granting, for the 1988/89 to 1995/96 wine years, of permanent abandonment premiums in respect of wine-growing areas (1), and in particular Article 20 thereof,
Whereas to enable the Commission to assess the impact of the abandonment measures, in connection with the exhaustive analysis to be conducted by the Council before 1 April 1990 in accordance with Article 11 of Regulation (EEC) No 1442/88 or in connection with the communication referred to in Article 9 (1) of Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (2), as last amended by Regulation (EEC) No 2964/83 (3), it should be laid down that the Member States are to supply the Commission with certain tables;
Whereas an annual deadline for the submission of applications to the Commission by the Member States pursurant to Article 12 (1) or (2) of Regulation (EEC) No 1442/88 should be fixed so that applicants can be notified in time and so that the competent authorities are saved excessive work on dealing with the applications;
Whereas certain dates should be adopted as regards the 1989/90 wine year so that Member States have time to forward such applications to the Commission; whereas an earliest date for admissibility should be laid down in 1989 for individual applications to be lodged in full knowledge of the facts; whereas, in view of the number of applications aiready lodged, Member States may however provide that individual applications submitted before that date which do not relate to the areas in respect of which the Commission has already taken measures pursuant to Article 12 (1) or (2) of Regulation (EEC) No 1442/88 are also to be admissible in order to avoid cumbersome administrative procedures;
Whereas an earliest date to which Member States may bring forward deadlines as provided for in Article 4 (4) of Regulation (EEC) No 1442/88 should also be indicated in order to give applicants sufficient time after the possible publication of areas exempt from application of Regulation (EEC) No 1442/88 in accordance with Article 12 of the said Regulation duly to complete abandonment applications;
Whereas the opportunity provided by this amendment should also be taken to specify details of the communication to be made by the Member States pursuant to Article 10 of Commission Regulation (EEC) No 2729/88 (4), as amended by Regulation (EEC) No 3445/88 (5);
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 2729/88 is hereby amended as follows:
1. Article 10 is replaced by the following:
'Article 10
Member States shall notify the Commission, not later than 31 October, of the total extent of exemption from the obligation provided for in Article 39 of Regulation (EEC) No 822/87, giving a breakdown by class of average yield and by administrative unit. The notification shall specify what quantities have been exempted since the end of the grubbing year just ended and the corresponding areas grubbed, giving the same breakdown.'
2. The following Articles are inserted:
'Article 10a
Member States shall forward to the Commission the particulars set out in the tables in Annex IV and V by 1 December at the latest of the year in which the grubbing year ended.
Those particulars may be forwarded with the annual communication by the Member States pursuant to Article 9 of Regulation (EEC) No 822/87.'
'Article 11a
1. So that they may take effect from the following wine year, Member States' applications pursuant to Article 12 (1) or (2) of Regulation (EEC) No 1442/88 shall be submitted to the Commission on 1 October at the latest. However, for grubbing to be carried out during the 1989/90 wine year, such applications must be submitted before 1 April 1989.
2. Where Article 4 (4) of Regulation (EEC) No 1442/88 is applied, the earliest date for submitting applications may not be prior to 1 July. In order to apply to the following wine year, the deadline brought forward must be in force in the Member State concerned on 1 April.
3. For grubbing to be carried out during the 1989/90 wine year, only individual applications submitted from 15 May 1989 shall be admissible. Member States may however provide that individual applications submitted before that date shall also be admissible where they relate to areas otherthan those in respect of which measures pursuant to Article 12 (1) or (2) of Regulation (EEC) No 1442/88 have been taken by the Commission.'
3. Annexes IV and V annexed to this Regulation are added.
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 1989.
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COMMISSION REGULATION (EC) No 568/2008
of 18 June 2008
amending Regulation (EC) No 527/2008 fixing the export refunds on white and raw sugar exported without further processing
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the market in the sugar sector (1), and in particular the fourth subparagraph of Article 33(2) thereof,
Whereas:
(1)
Export refunds on products listed in Article 1(1)(b) of Regulation (EC) No 318/2006 were fixed from 13 June 2008 by Commission Regulation (EC) No 527/2008 (2).
(2)
In the light of additional information available to the Commission, related in particular to the change in the relation between prices in the internal and world market, it is necessary to adjust export refunds currently applying.
(3)
Regulation (EC) No 527/2008 should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EC) No 527/2008 is replaced by the text in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 19 June 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 June 2008.
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COMMISSION REGULATION (EC) No 1168/2005
of 19 July 2005
opening a standing invitation to tender for the resale on the Community market of maize held by the Austrian intervention agency
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1), and in particular Article 6 thereof,
Whereas:
(1)
Commission Regulation (EEC) No 2131/93 of 28 July 1993 laying down the procedure and conditions for the sale of cereals held by intervention agencies (2), provides in particular that cereals held by intervention agencies are to be sold by tendering procedure at prices preventing market disturbance.
(2)
Because of unfavourable weather conditions on the Iberian Peninsula, maize prices on the Community market are relatively high, causing supply difficulties at competitive prices for growers and the livestock feed industry alike.
(3)
Austria has intervention stocks of maize, which should be used up.
(4)
It is therefore appropriate to make the stocks of maize held by the Austrian intervention agency available on the internal market.
(5)
To take account of the situation on the Community market, provision should be made for the Commission to manage this invitation to tender. In addition, provision must be made for an award coefficient for tenders offering the minimum selling price.
(6)
It is also important for the Austrian intervention agency’s notification to the Commission to maintain the anonymity of the tenderers.
(7)
With a view to modernising management, the information required by the Commission should be sent by electronic mail.
(8)
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 Austrian intervention agency shall open a standing invitation to tender for the sale on the Community market of 113 297 tonnes of maize held by it.
Article 2
The sale provided for in Article 1 shall take place in accordance with Regulation (EEC) No 2131/93.
However, notwithstanding that Regulation:
(a)
tenders shall be drawn up on the basis of the actual quality of the lot to which they apply;
(b)
the minimum selling price shall be set at a level which does not disturb the cereals market; it may not in any event be lower than the intervention price in force for the month in question, including any monthly increases.
Article 3
Notwithstanding Article 13(4) of Regulation (EEC) No 2131/93 the tender security is set at EUR 10 per tonne.
Article 4
1. The first partial invitation to tender shall expire at 15.00 (Brussels time) on 27 July 2005.
The closing dates for the submission of tenders for subsequent partial invitations to tender shall be each Wednesday at 15.00 (Brussels time), with the exception of 3 August, 17 August and 31 August 2005, i.e. weeks when no invitation to tender shall be made.
The closing date for the submission of tenders for the last partial invitation to tender shall be 26 October 2005 at 15.00 (Brussels time).
2. Tenders must be lodged with the Austrian intervention agency at the following address:
AMA (Agrarmarkt Austria)
Dresdnerstraße 70
A-1200 Wien
Fax
(00 43 1) 33151 4624
(00 43 1) 33151 4469
Article 5
Within two hours of the expiry of the time limit for the submission of tenders, the Austrian intervention agency shall notify the Commission of tenders received. This notification shall be made by e-mail, using the form in the Annex hereto.
Article 6
Under the procedure laid down in Article 25(2) of Regulation (EC) No 1784/2003 the Commission shall set the minimum selling price or decide not to award any quantities. In the event that tenders are submitted for the same lot and for a quantity larger than that available, the Commission may fix this price separately for each lot.
Where tenders are offering the minimum sale price, the Commission may fix an award coefficient for the quantities offered at the same time as it fixes the minimum sale price.
Article 7
This Regulation shall enter into force on the third day following 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 July 2005.
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COMMISSION DIRECTIVE 2004/116/EC
of 23 December 2004
amending the Annex to Council Directive 82/471/EEC as regards the inclusion of Candida guilliermondii
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 82/471/EEC concerning certain products used in animal nutrition (1), and in particular Article 6 thereof,
Whereas:
(1)
An application for authorisation has been submitted for Candida guilliermondii, cultivated on substrates of vegetable origin, which belongs to the product group ‘1.2.1. yeasts cultivated on substrates of animal or vegetable origin’ set out in the Annex to Directive 82/471/EEC. This feed is a microbial product based on the spent cells remaining after the industrial production of citric acid by fermentation.
(2)
The Scientific Panel on additives and products or substances used in animal feed of the European Food Safety Authority has delivered an opinion on the use of this product in feedingstuffs on 7 of June 2004, which concludes that the use of Candida guilliermondii cultivated on a substrate of vegetable origin (sugar cane molasses) does not present a risk to human health, animal health or the environment.
(3)
The assessment of the request for authorisation submitted in respect of Candida guilliermondii cultivated on substrates of vegetable origin shows that this product meets the requirements laid down in Article 6(2) of Directive 82/471/EEC, under the conditions set out in the Annex.
(4)
Directive 82/471/EEC should therefore be amended accordingly.
(5)
The measures provided for in this Directive are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DIRECTIVE:
Article 1
The Annex to Directive 82/471/EC is amended as set out in the Annex to this Directive.
Article 2
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 2005 at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
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 3
This Directive shall enter into force on the seventh day following that of its publication in the Official Journal of the European Union.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 23 December 2004.
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Commission Regulation (EC) No 1369/2002
of 26 July 2002
derogating from Article 31(10) of Council Regulation (EC) No 1255/1999 as regards proof of arrival at destination in the case of differentiated refunds and laying down detailed rules for the application of the lowest export refund rate for certain milk products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), as last amended by Commission Regulation (EC) No 509/2002(2), and in particular the third indent of Article 31(10) and Article 31(14) thereof,
Whereas:
(1) The third indent of Article 31(10) of Regulation (EC) No 1255/1999 stipulates that in the case of differentiated refunds the refund is to be paid on presentation of proof that the products have reached the destination indicated on the licence or another destination for which a refund was fixed. Exceptions to that rule are possible provided that conditions are laid down offering equivalent guarantees.
(2) In the event that export refunds are differentiated according to destination, Article 18(1) and (2) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products(3), as last amended by Regulation (EC) No 1253/2002(4), stipulates that part of the refund, calculated using the lowest rate for the refund, is to be paid on application by the exporter once proof is furnished that the product has left the customs territory of the Community.
(3) Under special arrangements with certain third countries, the refund rate applicable to the export of certain milk products to those countries may be lower, in some cases by a large amount, than the refund normally applied. It is also possible that a refund may not be fixed so the lowest rate of the refund is also the result of the lack of fixing of a refund.
(4) Council Regulation (EC) No 1151/2002 of 27 June 2002 establishing certain concessions in the form of Community tariff quotas for certain agricultural products and providing for an adjustment, as an autonomous and transitional measure, of certain agricultural concessions provided for in the Europe Agreement with Estonia(5) establishes concessions in the form of reciprocal tariff quotas involving the abolition of Community refunds on certain milk products. Similar concessions have been agreed with Latvia and Lithuania. Refunds for the products concerned from the three Baltic states have therefore been abolished with effect from 4 July 2002.
(5) The abolition of refunds entails a differentiation of refunds for certain milk products. So as to avoid requiring exporters to furnish proof of arrival at destination in order to qualify for a refund in accordance with Regulation (EC) No 1255/1999, the authorities of the countries to whom concessions have been granted have undertaken to ensure that only consignments of Community products which have not received refunds will be accepted for import into those countries. To that end, the provisions applicable to Poland by virtue of Article 20(b) of Commission Regulation (EC) No 174/1999(6), as last amended by Regulation (EC) No 1368/2002(7), have been extended to the countries and products concerned. A derogation should therefore be made from Article 31(10) of Regulation (EC) No 1255/1999.
(6) Article 20(b) of Commission Regulation (EC) No 174/1999 obliges operators to present a certified copy of the export licence and the corresponding export declaration to the competent authorities when the products referred to in Annex VIII to Regulation (EC) No 174/1999 are imported to the destinations referred to in that Annex. The export licence must bear special indications guaranteeing that the products concerned have not received an export refund. The authorities of the third countries concerned are to verify compliance with the provisions of Article 20b of Regulation (EC) No 174/1999.
(7) Account should be taken of these special arrangements when applying Regulations (EC) No 1255/1999 and (EC) No 800/1999 so as to avoid imposing on exporters unnecessary financial charges during their trade with third countries. To that end, when the lowest refund rate is determined the rates fixed on the conditions and for the particular destination concerned should not be taken into account.
(8) For the sake of clarity, Commission Regulation (EC) No 2886/2000 of 27 December 2000 derogating from Article 31(10) of Council Regulation (EC) No 1255/1999 as regards proof of arrival at destination in the case of differentiated refunds and laying down detailed rules for the application of the lowest export refund rate for certain milk products(8), which lays down similar provisions for the export of certain products to Poland, should be repealed. The provisions of that Regulation should be incorporated into this Regulation.
(9) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
By derogation from the third indent of Article 31(10) of Regulation (EC) No 1255/1999, proof of arrival at destination shall not be required for the products referred to in Annex VIII to Regulation (EC) No 174/1999.
Article 2
The fact that no refund is fixed on the products referred to in Annex VIII to Regulation (EC) No 174/1999 shall not be taken into account in determining the lowest refund rate within the meaning of the first subparagraph of Article 18(2) of Regulation (EC) No 800/1999.
Article 3
Regulation (EC) No 2886/2000 is hereby repealed.
Article 4
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply to licences applied for from 4 July 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 July 2002.
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COMMISSION REGULATION (EC) No 1492/2004
of 23 August 2004
amending Regulation (EC) No 999/2001 of the European Parliament and of the Council as regards eradication measures for transmissible spongiform encephalopathies in bovine, ovine and caprine animals, the trade and importation of semen and embryos of ovine and caprine animals and specified risk material
(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 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (1), and in particular the first paragraph of Article 23 thereof,
Whereas:
(1)
Regulation (EC) No 999/2001 lays down rules for eradication measures to be carried out following the confirmation of transmissible spongiform encephalopathy (TSE) in bovine, ovine and caprine animals.
(2)
On 14 September 2000, in its opinion on bovine spongiform encephalopathy (BSE)-related culling in cattle, the Scientific Steering Committee (SSC) concluded that largely the same effect can be reached by birth cohort culling as by herd culling. On 21 April 2004, the Biological Hazards panel of the European Food Safety Authority adopted an opinion in which it concludes that insufficient additional argument exists to modify the SSC opinion. The provisions relating to culling in Regulation (EC) No 999/2001 should be brought into line with those opinions.
(3)
In the interest of certainty of Community legislation, it is also necessary to clarify the definition of the cohort of a BSE case and the action to be taken regarding cohort animals in order to avoid different interpretations.
(4)
In addition, it is necessary to clarify the application of TSE eradication measures as they apply to pregnant ewes and to holdings containing multiple flocks. To address practical problems, the rules should be amended regarding holdings producing lambs for further fattening, the introduction of ewes of unknown genotype to infected holdings, and the time period during which derogations are to apply for the destruction of animals in holdings or breeds in which the frequency of the ARR allele is low.
(5)
Scrapie eradication measures, as advised in the opinion of the SSC of 4 April 2002, were inserted in Regulation (EC) No 999/2001, as amended by Commission Regulation (EC) No 260/2003 (2). Those measures were introduced on a gradual basis, in order to take account of management issues. According to currently available evidence, it is highly unlikely that the carcases of animals of less than two months of age contain significant amounts of infectivity, provided that the offal including the head is removed. Further amendments to the eradication measures should be made to resolve problems encountered in some Member States in relation to those young animals.
(6)
It is appropriate to introduce restrictions on holdings following the suspicion of scrapie in an ovine or caprine animal in order to avoid movement of other possibly infected animals prior to confirmation of the suspicion.
(7)
Testing requirements to permit the lifting of restrictions on infected holdings have proven to be excessively onerous for large flocks of sheep and should be amended. It is also appropriate to clarify the definition of the target groups for such testing.
(8)
General rules regarding the trade and importation of semen and embryos of ovine and caprine animals are laid down in Council Directive 92/65/EEC (3). Specific TSE rules for the placing on the market of semen and embryos of those species should be laid down in this Regulation.
(9)
In line with the current provisions provided for in Regulation (EC) No 999/2001 on specified risk material to exclude the transverse processes of the lumbar and thoracic vertebrae from the list of specified risk material, the spinous processes of these vertebrae, the spinous and transverse processes of the cervical vertebrae and the median sacral crest should also not be considered as specified risk material.
(10)
Regulation (EC) No 999/2001 should therefore be amended accordingly.
(11)
The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS REGULATION:
Article 1
Annexes I, VII, VIII, IX and XI to Regulation (EC) No 999/2001 are 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.
Points 3 and 4 of the Annex to the present Regulation shall apply from 1 January 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 August 2004.
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COUNCIL DECISION
of 21 December 2005
on the conclusion of an agreement in the form of an Exchange of Letters between the European Community and Japan pursuant to Article XXIV:6 and Article XXVIII of the General Agreement on Tariffs and Trade (GATT) 1994
(2005/958/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133 in conjunction with the first sentence of the first subparagraph of Article 300(2) thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
On 22 March 2004 the Council authorised the Commission to open negotiations with certain other Members of the WTO under Article XXIV:6 of the General Agreement on Tariffs and Trade (GATT) 1994, in the course of the accessions to the European Union of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic.
(2)
Negotiations have been conducted by the Commission in consultation with the Committee established by Article 133 of the Treaty and within the framework of the negotiating directives issued by the Council.
(3)
The Commission has finalised negotiations for an agreement in the form of an Exchange of Letters between the European Community and Japan pursuant to Article XXIV:6 and Article XXVIII of the GATT 1994. The said agreement should therefore be approved,
HAS DECIDED AS FOLLOWS:
Article 1
The agreement in the form of an Exchange of Letters between the European Community and Japan pursuant to Article XXIV:6 and Article XXVIII of the GATT 1994 with respect to the withdrawal of specific concessions in relation to the withdrawal of the schedules of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic in the course of their accession to the European Union is hereby approved on behalf of the Community.
The text of the agreement in the form of an Exchange of Letters is attached to this Decision.
Article 2
The President of the Council is hereby authorised to designate the person(s) empowered to sign the agreement in order to bind the Community (1).
Done at Brussels, 21 December 2005.
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COMMISSION DECISION of 8 January 1996 adjusting the weightings applicable from 1 June 1994 to the remuneration of officials of the European Communities serving in third countries (96/87/Euratom, ECSC, EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing a Single Council and a Single Commission of the European Communities,
Having regard to the Staff Regulations of the Officials of the European Communities and the conditions of employment of other servants of the Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/68 (1), as last amended by Regulation (ECSC, EC, Euratom) No 3161/94 (2), and in particular the second paragraph of Article 13 of Annex X thereto,
Whereas, pursuant to the first paragraph of Article 13 of Annex X to the Staff Regulations, Council Regulation (EC, Euratom, ECSC) No 2356/95 (3) laid down the weightings to be applied from 1 January 1994 to the remuneration of officials serving in third countries, payable in the currency of their country of employment;
Whereas the Commission has made a number of adjustments to these weightings in recent months, pursuant to the second paragraph of Article 13 of Annex X to the Staff Regulations (4);
Whereas some of these weightings should be adjusted with effect from 1 June 1994 given that the statistics available to the Commission show that in certain third countries the variation in the cost of living measured on the basis of the weighting and the corresponding exchange rate has exceeded 5 % since weightings were last laid down,
HAS DECIDED AS FOLLOWS:
Sole Article
With effect from 1 June 1994 the weightings applicable to the remuneration of officials serving in third countries payable in the currency of their country of employment are adjusted as shown in the Annex.
The exchange rates for the calculation of such remuneration shall be those used for implementation of the general budget of the European Union for the month preceding the date referred to in the first paragraph.
Done at Brussels, 8 January 1996.
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COMMISSION REGULATION (EC) No 2206/2004
of 21 December 2004
fixing the export refunds on rice and broken rice and suspending the issue of export licences
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1785/2003 of 29 September 2003 on the common organisation of the market in rice (1), and in particular Article 14(3) and 19 thereof,
Whereas:
(1)
Article 14 of Regulation (EC) No 1785/2003 provides that the difference between quotations or prices on the world market for the products listed in Article 1 of that Regulation and prices for those products within the Community may be covered by an export refund.
(2)
Article 14 of Regulation (EC) No 1785/2003, provides that when refunds are being fixed, account must be taken of the existing situation and the future trend with regard to prices and availability of rice and broken rice on the Community market on the one hand and prices for rice and broken rice on the world market on the other. The same Article provides that it is also important to ensure equilibrium and the natural development of prices and trade on the rice market and, furthermore, to take into account the economic aspect of the proposed exports and the need to avoid disturbances of the Community market with limits resulting from agreements concluded in accordance with Article 300 of the Treaty.
(3)
Commission Regulation (EEC) No 1361/76 (2) lays down the maximum percentage of broken rice allowed in rice for which an export refund is fixed and specifies the percentage by which that refund is to be reduced where the proportion of broken rice in the rice exported exceeds that maximum.
(4)
The maximum export refund for rend, medium and long A rice was fixed at a relatively low level. Consequently, it is not justified for the moment to fix a common right to refund for rice.
(5)
Article 14(5) of Regulation (EC) No 1785/2003 defines the specific criteria to be taken into account when the export refund on rice and broken rice is being calculated.
(6)
The world market situation or the specific requirements of certain markets may make it necessary to vary the refund for certain products according to destination.
(7)
A separate refund should be fixed for packaged long grain rice to accommodate current demand for the product on certain markets.
(8)
The refund must be fixed at least once a month; whereas it may be altered in the intervening period.
(9)
It follows from applying these rules and criteria to the present situation on the market in rice and in particular to quotations or prices for rice and broken rice within the Community and on the world market, that the refund should be fixed as set out in the Annex hereto.
(10)
For the purposes of administering the volume restrictions resulting from Community commitments in the context of the WTO, the issue of export licences with advance fixing of the refund should be restricted.
(11)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the products listed in Article 1 of Regulation (EC) No 1785/2003 with the exception of those listed in paragraph 1(c) of that Article, exported in the natural state, shall be as set out in the Annex hereto.
Article 2
The issue of export licences with advance fixing of the refund is hereby suspended.
Article 3
This Regulation shall enter into force on 22 December 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 December 2004.
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COMMISSION REGULATION (EEC) No 1500/93 of 18 June 1993 on the sale by the procedure laid down in Regulation (EEC) No 2539/84 of beef held by certain intervention agencies and intended for export to the Commonwealth of Independent States
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic 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 (EEC) No 125/93 (2), and in particular Article 7 (3) thereof,
Whereas certain intervention agencies hold large stocks of intervention meat; whereas an extension of the period of storage for the meat bought in should be avoided on account of the ensuing high costs; whereas part of that meat should be put up for sale for import into the Commonwealth of Independent States (CIS);
Whereas Commission Regulation (EEC) No 2539/84 of 5 September 1984 laying down detailed rules for certain sales of frozen beef held by the intervention agencies (3), as amended by Regulation (EEC) No 1809/87 (4), provides for the possibility of applying a two-stage procedure when selling beef from intervention stocks; whereas Commission Regulation (EEC) No 2824/85 of 9 October 1985 laying down detailed rules for the sale of frozen boned beef from intervention stocks for export either in the same state or after cutting and/or repacking (5) as amended by Regulation (EEC) No 251/93 (6), provides for repackaging under certain conditions;
Whereas, in view of the urgency and the specific nature of the operation and of the need for controls, special detailed rules must be laid down in particular as regards the minimum quantity which may be purchased during the operation;
Whereas quarters from intervention stocks may in certain cases have been handled a number of times; whereas in order to help with the presentation and marketing of such meat, its repackaging should be authorized, subject to the observance of clear conditions;
Whereas a time limit must be laid down for export of the said meat; whereas this time limit should be fixed taking into account Article 5 (b) of Commission Regulation (EEC) No 2377/80 of 4 September 1980 on special detailed rules for the application of the system of import and export licences in the beef and veal sector (7), as last amended by Regulation (EEC) No 3662/92 (8);
Whereas in order to ensure that the meat sold is exported to the destination laid down, a security as specified in Article 5 (2) (a) of Regulation (EEC) No 2539/84 should be required; whereas, in order to ensure a smoother functioning of the export operations, provision should be made for derogations from certain provisions relating to the release of the security;
Whereas products held by intervention agencies and intended for export are subject to the provisions of Commission Regulation (EEC) No 3002/92 (9), as last amended by Regulation (EEC) No 642/93 (10);
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. A sale shall be organized of approximately:
- 30 000 tonnes of bone-in beef held by the German intervention agency,
- 30 000 tonnes of bone-in beef held by the French intervention agency,
- 10 000 tonnes of boned beef held by the United Kingdom intervention agency,
- 10 000 tonnes of boned beef held by the Irish intervention agency.
2. This meat must be imported into one or more Republics of the CIS (see Annex I).
3. Subject to the provisions of this Regulation, the sale shall take place in accordance with the provisions of Regulation (EEC) No 2539/84 and (EEC) No 2824/85.
The provisions of Commission Regulation (EEC) No 985/81 (11) shall not apply to this sale. However, the competent authorities may allow bone-in forequarters and hindquarters, the packaging material of which is torn or soiled, to be placed in new packaging of the same type under their supervision before presentation for consignment at the customs office of departure.
4. The qualities and the minimum prices referred to in Article 3 (1) of Regulation (EEC) No 2539/84 are given in Annex II hereto.
5. Tenders or purchase applications shall be valid only if:
- they relate to bone-in or boneless beef,
- they relate to a total minimum quantity of 10 000 tonnes,
- they relate to an equal number of forequarters and hindquarters and quote a single price per tonne expressed in ecus for the whole quantity of bone-in beef specified in the tender,
- in respect of boneless beef, they relate to a lot comprising all the cuts referred to in Annex III, point (a) or point (b), in the percentages stated therein and quote a single price per tonne expressed in ecus of the lot made up in this fashion.
6. In order to meet the conditions laid down in paragraph 5, operators may submit part tenders relating to bone-in beef in several Member States. In that case, tenders or purchase applications shall quote the same price expressed in ecus.
Immediately after submitting tenders or purchase applications, operators shall send a copy thereof by telex or fax to the Commission of the European Communities, Division VI/D.2, 130, rue de la Loi, B-1049 Brussels, (telex 220 37 AGREC B; fax (02) 296 60 27).
7. Intervention agencies shall only conclude sales contracts after written authorization by the Commission, in particular in accordance with paragraphs 5 and 6.
8. Tenders shall be considered only if they reach the intervention agencies concerned by 12 noon on 23 June 1993 at the latest.
9. Details of the quantities of the products and the places where they are stored must be made available to interested parties at the addresses given in Annex IV.
Article 2
The products referred to in Article 1 must be exported within five months from the date of conclusion of the contract of sale with the intervention agency.
Article 3
1. The security provided for in Article 5 (1) of Regulation (EEC) No 2539/84 shall be ECU 30 per 100 kilograms.
2. The security provided for in Article 5 (2) (a) of Regulation (EEC) No 2539/84 shall be:
- ECU 300 per 100 kilograms of bone-in beef,
- ECU 500 per 100 kilograms of boneless beef.
Article 4
1. No export refund shall be granted on meat sold under this Regulation.
Removal orders as referred to in Article 3 (1) (b) or Regulation (EEC) No 3002/92, export declarations and, where appropriate, T 5 control copies shall bear the following:
Productos de intervención sin restitución [Reglamento (CEE) no 1500/93];
Interventionsvarer uden restitution [Forordning (EOEF) nr. 1500/93];
Interventionserzeugnisse ohne Erstattung [Verordnung (EWG) Nr. 1500/93];
Proionta paremvaseos choris epistrofi [Kanonismos (EOK) arith. 1500/93];
Intervention products without refund [Regulation (EEC) No 1500/93];
Produits d'intervention sans restitution [Règlement (CEE) no 1500/93];
Prodotti d'intervento senza restituzione [Regolamento (CEE) n. 1500/93];
Produkten uit interventievoorraden zonder restitutie [Verordening (EEG) nr. 1500/93];
Produtos de intervençao sen restituiçao [Regulamento (CEE) no 1500/93].
2. With regard to the security provided for in Article 3 (2), compliance with paragraph 1 shall constitute a primary requirement within the meaning of Article 20 of Commission Regulation (EEC) No 2220/85 (12)
However, by derogation from Article 15 of Regulation (EEC) No 3002/92 part of the security shall be released when it is established that the products have reached one of the destinations referred to in Article 11 (1) (a), (b) or (c) of that Regulation. That part shall be equivalent to the amount of the security initially lodged less ECU 165 per 100 kg product weight.
Article 5
This Regulation shall enter into force on 23 June 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 June 1993.
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*****
COMMISSION REGULATION (EEC) No 3462/84
of 10 December 1984
amending the provisions implementing monetary compensatory amounts with effect from 1 January 1985 in respect of intervention butter and skimmed-milk powder sold at a reduced price
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 974/71 of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States (1), as last amended by Regulation (EEC) No 855/84 (2), and in particular Article 6 thereof,
Whereas Article 7 (1) of Commission Regulation (EEC) No 1160/82 of 14 May 1982 providing for the advance fixing of monetary compensatory amounts (3) provides that monetary compensatory amounts fixed in advance are to be adjusted if a new representative rate comes into effect while a certificate is valid; whereas the new rate must have been decided on before the application for advance fixing is lodged; whereas this situation will arise on 1 January 1985 in the case of Germany and the Netherlands;
Whereas the monetary compensatory amounts introduced by Regulation (EEC) No 974/71 were fixed by Commission Regulation (EEC) No 900/84 (4), as last amended by Regulation (EEC) No 3395/84 (5); whereas Annex IV to the said Regulation sets out the coefficients to be applied to monetary compensatory amounts fixed in advance for milk and milk products to be exported on or after 1 January 1985;
Whereas, under Commission Regulation (EEC) No 2268/84 (6), as last amended by Regulation (EEC) No 3457/84 (7), Commission Regulation (EEC) No 2278/84 (8), as last amended by Regulation (EEC) No 2815/84 (9), and Commission Regulation (EEC) No 2956/84 (10), as last amended by Regulation (EEC) No 3457/84, butter in public intervention storage has been made available to exporters at a reduced price for export to certain third countries; whereas the said Regulations provide that the purchase price of this butter is not to be affected by any changes to representative rates during the life of a contract; whereas the adjustment of monetary compensatory amounts fixed in advance before 1 January 1985, as provided for in Article 7 (1) of Regulation (EEC) No 1160/82, should not be carried out in respect of intervention butter sold at a reduced price for export from Germany and/or the Netherlands on or after that date;
Whereas the monetary compensatory amounts applying in Germany and the Netherlands are to be adjusted from 1 January 1985 as a result of the introduction of new representative rates; whereas, however, monetary compensatory amounts should remain unchanged in respect of butter sold under Regulations (EEC) No 2268/84, (EEC) No 2278/84 and (EEC) No 2956/84 before 1 January 1985 and shipped to another Member State on or after that date for processing into butteroil prior to being exported;
Whereas monetary compensatory amounts should also remain unchanged in respect of butter sold during December 1984 under Commission Regulation (EEC) No 262/79 (11), as last amended by Regulation (EEC) No 2927/84 (12), and in respect of skimmed-milk powder sold during the same month under Commission Regulation (EEC) No 368/77 (13), as last amended by Regulation (EEC) No 3031/84 (14);
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
Monetary compensatory amounts fixed in advance before 1 January 1985 in respect of intervention butter sold before that date under Regulations (EEC) No 2268/84, (EEC) No 2278/84 and (EEC) No 2956/84 for export on or after 1 January 1985 as butter or in the form of another product falling within heading No 04.03 of the Common Customs Tariff shall not be subject to the coefficients set out in Annex IV to Regulation (EEC) No 900/84 for Germany and the Netherlands.
Article 2
Monetary compensatory amounts applying on 31 December 1984 shall remain valid after that date in respect of butter sold under Regulations (EEC) No 2268/84, (EEC) No 2278/84 and (EEC) No 2956/84 before 1 January 1985 and shipped to another Member State on or after 1 January 1985.
Article 3
Monetary compensatory amounts applying on 31 December 1984 shall remain valid until 15 February 1985 in respect of:
- butter sold under Regulation (EEC) No 262/79 by tender award during December 1984,
- skimmed-milk powder sold under Regulation (EEC) No 368/77 by tender award during December 1984.
Article 4
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 December 1984.
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COUNCIL REGULATION (EC) No 1596/96 of 30 July 1996 amending Regulation (EEC) No 2392/86 establishing a Community vineyard register
THE COUNCIL OF THE EUROPEAN UNION,
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), and in particular Article 80 thereof,
Having regard to the proposal from the Commission (2),
Whereas the measures provided for in Regulation (EEC) No 2392/86 (3) must be sufficiently flexible to allow them to be adjusted to developments in the common organization of the market in wine; whereas the technical difficulties encountered by some Member States to establish a vineyard register make it necessary to extend the time limits laid down in Article 4 (4) of Regulation (EEC) No 2392/86,
HAS ADOPTED THIS REGULATION:
Article 1
In Article 4 (4) of Regulation (EEC) No 2392/86:
(a) in the first subparagraph, '31 December 1996` shall be replaced by '31 December 1998`;
(b) in the fifth subparagraph, '31 December 1996` shall be replaced by '31 December 1997`.
Article 2
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, 30 July 1996.
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COMMISSION REGULATION (EC) No 1742/2006
of 24 November 2006
opening and providing for the administration of Community tariff quotas for wines originating in the Republic of Albania
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 62 thereof,
Whereas:
(1)
A Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part (hereinafter referred to as the Stabilisation and Association Agreement), was signed in Luxembourg on 12 June 2006. The Stabilisation and Association Agreement is in the process of ratification.
(2)
On 12 June 2006 the Council concluded an Interim Agreement on trade and trade-related matters between the European Community, of the one part, and the Republic of Albania, of the other part (2) (hereinafter referred to as the Interim Agreement), which provides for the early entry into force of the trade and trade-related provisions of the Stabilisation and Association Agreement. The Interim Agreement will enter into force on 1 December 2006.
(3)
The Interim Agreement and the Stabilisation and Association Agreement stipulate that wines originating in Albania may be imported into the Community, within the limits of Community tariff quotas, at a zero-rate customs duty.
(4)
The tariff quotas provided for in the Interim Agreement and in the Stabilisation and Association Agreement are annual and are repeated for an indeterminate period. The Commission should adopt the implementing measures for the opening and the administration of the Community tariff quotas.
(5)
Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (3) has codified the management rules for tariff quotas designed to be used following the chronological order of dates of acceptance of customs declarations.
(6)
Particular care should be taken to ensure that all Community importers have equal and continuous access to the tariff quotas and that the rates laid down for the quotas are applied continuously to all imports of the products in question into all Member States until the quotas are exhausted. In order to ensure the efficiency of a common administration of those quotas, there should be no obstacle to authorising the Member States to draw from the quota volumes the necessary quantities corresponding to actual imports. Communication between the Member States and the Commission should, as far as possible, take place by electronic transmission.
(7)
This Regulation should apply upon the entry into force of the Interim Agreement and should continue to apply after the entry into force of the Stabilisation and Association Agreement.
(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
1. Tariff quotas at zero-rate customs duty are opened for wines imported into the Community and originating in Albania as set out in the Annex.
2. The zero-rate duty is applied provided that the imported wines are accompanied by a proof of origin as provided for in Protocol 3 to the Interim Agreement and to the Stabilisation and Association Agreement.
Article 2
The tariff quotas referred to in Article 1 shall be administered by the Commission in accordance with Articles 308a to 308c of Regulation (EEC) No 2454/93.
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
It shall apply from 1 December 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 November 2006.
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COMMISSION REGULATION (EC) No 1725/1999
of 2 August 1999
on the supply of split peas as food aid
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1292/96 of 27 June 1996 on food aid policy and food aid management and special operations in support of food security(1), and in particular Article 24(1)(b) thereof,
(1) Whereas the abovementioned Regulation lays down the list of countries and organisations eligible for Community aid and specifies the general criteria on the transport of food aid beyond the fob stage;
(2) Whereas, following the taking of a number of decisions on the allocation of food aid, the Commission has allocated split peas to certain beneficiaries;
(3) Whereas it is necessary to make these supplies in accordance with the rules laid down by Commission Regulation (EC) No 2519/97 of 16 December 1997 laying down general rules for the mobilisation of products to be supplied under Council Regulation (EC) No 1292/96 as Community food aid(2); whereas it is necessary to specify the time limits and conditions of supply to determine the resultant costs;
(4) Whereas, in order to ensure that the supplies are carried out, provision should be made for tenderers to be able to mobilise either green split peas or yellow split peas,
HAS ADOPTED THIS REGULATION:
Article 1
Split peas shall be mobilised in the Community, as Community food aid for supply to the recipients listed in the Annex, in accordance with Regulation (EC) No 2519/97, and under the conditions set out in the Annex.
Tenders shall cover either green split peas or yellow split peas. Tenders shall be rejected unless they specify the type of peas to which they relate.
The tenderer is deemed to have noted and accepted all the general and specific conditions applicable. Any other condition or reservation included in his tender is deemed unwritten.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 August 1999.
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Commission Decision
of 10 October 2001
declaring a concentration to be incompatible with the common market
Council Regulation (EEC) No 4064/89
(Case COMP/M.2283 - Schneider/Legrand)
(notified under document number C(2001) 3014)
(Only the French version is authentic)
(Text with EEA relevance)
(2004/275/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Agreement on the European Economic Area, and in particular Article 57 thereof,
Having regard to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings(1), as last amended by Council Regulation (EC) No 1310/97 of 30 June 1997(2), and in particular Article 8(3) thereof,
Having regard to the Commission decision of 30 March 2001 to initiate proceedings in this case,
Having given the undertakings concerned the opportunity to make known their views on the objections raised by the Commission,
Having regard to the opinion of the Advisory Committee on Concentrations(3),
Having regard to the final report by the Hearing Officer in this case(4),
Whereas:
(1) On 16 February 2001 the Commission received notification, pursuant to Article 4 of Council Regulation (EEC) No 4064/89, of a takeover plan whereby Schneider Electric was to acquire, within the meaning of Article 3(1)(b) of Council Regulation (EEC) No 4064/89 (hereinafter "the Merger Regulation"), sole control of Legrand by way of an exchange of shares announced on 15 January 2001.
I. THE PARTIES
(2) Schneider Electric (hereinafter "Schneider"), a French limited company, is the parent company of a group whose business is in the production and sale of products and systems in the electricity distribution, industrial control and automation sectors. It is active worldwide.
(3) Legrand (hereinafter "Legrand"), a French limited company, is the parent company of a group whose business is in the production and sale of low-voltage switchgear and accessories. It is active worldwide.
II. THE CONCENTRATION
(4) The concentration involves an offer for an exchange of shares made by Schneider for all shares in Legrand held by the public. It therefore constitutes acquisition of sole control within the meaning of Article 3(1)(b) of the Merger Regulation. The public offer closed on 25 July 2001 and Schneider holds 98,1 % of Legrand's capital.
III. COMMUNITY DIMENSION
(5) The firms involved achieve total turnover worldwide in excess of EUR 5000 million(5) (Schneider: EUR 8750 million; Legrand: EUR 2791 million). Each of them achieves turnover in the Community of more than EUR 250 million (Schneider: EUR 4095 million; Legrand: EUR 1684 million), but neither achieves more than two thirds of its turnover in a single Member State. The acquisition therefore has a Community dimension.
IV. PROCEDURE
(6) Having examined the notification, the Commission concluded that the acquisition notified fell within the scope of the Merger Regulation and raised serious doubts about its compatibility with the common market and the EEA Agreement. By decision of 30 March 2001, it therefore initiated proceedings under Article 6(1)(c) of the Merger Regulation.
(7) In order to be able to examine the notified acquisition, the Commission sent a request for information to Schneider and Legrand on 6 April 2001, pursuant to Article 11 of the Merger Regulation. The deadline for replying to the request expired on 18 April 2001. However, Schneider and Legrand did not provide all the information requested within the period set.
(8) The Commission therefore adopted two decisions, addressed to Schneider and to Legrand, in accordance with Article 11(5) of the Merger Regulation. Pursuant to Article 10(4) of the Merger Regulation, the period within which a decision must be adopted under Article 8 of the Merger Regulation was accordingly suspended on 6 April 2001 until the date on which all the information requested by the Commission was received, this being 25 June 2001.
(9) The Commission addressed a statement of objections to Schneider on 3 August 2001. The parties replied to the statement of objections in a document (hereinafter "the reply to the statement of objections") transmitted on 16 August 2001. A hearing was then held on 21 August 2001.
V. COMPATIBILITY WITH THE COMMON MARKET
A. THE LOW-VOLTAGE ELECTRICAL EQUIPMENT SECTOR
A.1 INTRODUCTION
(10) The effects of the merger would be felt primarily in the low-voltage electrical equipment sector, where all of Legrand's sales are made and almost half of Schneider's business is conducted.
(11) This sector comprises equipment found in industrial, commercial or residential buildings downstream of connection to the medium-voltage electricity supply. It includes all the equipment needed for electricity distribution and connection to the grid in a building (such as electrical switchboards, cable ducts and junction boxes, sockets and switches), as well as communication and control components (for air conditioning, lighting, etc.) and other equipment used in buildings, such as security systems and fire or intruder detection and alarm systems.
(12) More specifically, the merger would essentially affect the following three business categories:
(a) low-voltage switchboards, which essentially distribute electricity to the various levels of the installation (building, floor, apartment, etc.) and protect installation and user from overcurrents and short circuits.
These boards, consisting mainly of a cabinet and protective components (circuit breakers, fuses or earth leakage switches), can be subdivided into three further categories, corresponding to different levels of electricity distribution: (i) main switchboards (for connecting large industrial or commercial buildings to the medium-voltage network), (ii) distribution boards (typically used for floors in buildings) and (iii) final panelboards (for end users with low energy requirements, such as the occupant of an apartment);
(b) cable trays and busbar trunking, which support the routing of electric cables in the basement, service duct or false ceiling of a building;
(c) electrical equipment downstream of the final panelboard, which comprises six categories of product: (i) wiring accessories, constituting the final part of the electrical installation (sockets, switches, etc.), (ii) control systems, that control a specific application (such as heating) in a specific part of a building, (iii) systems for the protection of property and life (alarm systems, fire detection systems, emergency lighting, etc.), (iv) data connectors for data networks (data connectors, wiring cabinets, etc.), (v) fixing and connecting equipment, for the connecting, fixing and cabling of installations downstream of final panelboards and (vi) cable trunking components (trunking, floor boxes and distribution columns).
(13) The notified merger would also have an effect on other types of product with industrial applications, such as control and signalling units, also called "industrial pushbuttons", and electricity supply and transformation equipment.
(14) The parties propose the following segmentation of the sector, which will be taken as the starting point for the definition of the relevant markets in this Decision:
Table 1
TABLE
A.2 PRESENTATION OF THE SECTOR
A.2.1 Market participants
(15) There are six distinct types of participant in the market for the equipment concerned, on the supply and demand sides: manufacturers, wholesalers, panel builders, installers, project managers (architects, engineering consultants, etc.) and end users.
A.2.2 Manufacturers of low-voltage electrical equipment
(16) Manufacturers of low-voltage electrical equipment are industrial groups which develop and manufacture the equipment concerned. According to Schneider's internal segmentation(6), there are three types of player: "mega-players", "dilemmas" and "mature players".
(17) Schneider distinguishes the major international groups ("mega-players") principally by their large size, diverse product range and capacity to undertake major repositioning of their activities. In addition to Schneider itself, the major groups found in this category at world level are ABB, Siemens, General Electric, Tyco, Matsushita and Emerson. Only four of these groups carry on significant business in low-voltage electrical equipment in Europe. They are Schneider, ABB, Siemens and GE, which all have a vast range of low-voltage products and carry on significant business in medium and high-voltage equipment. ABB, Siemens and GE are also vertically integrated to some extent and are active as installers of electrical equipment and/or panelbuilders. Emerson is present primarily in the United States, Matsushita is practically absent from Europe, and Tyco's business in Europe is restricted to a few niches in equipment downstream of final panelboards and in cable trays.
(18) According to Schneider, the "dilemmas" [...]*(7) are more specialised firms with their main focus on cyclical sectors [...]* that are suffering from a temporary lack of growth. These firms are also characterised by major changes in their range of activities, and they have not been able to form a coherent group, which is reflected in a significant drop in their stock-market value.
(19) The "mature players" [...]* are smaller companies specialised in low-voltage equipment. They most frequently have a range of mature activities that changes very little, but have seen sustained growth in their turnover thanks to external acquisitions. This description would also fit [...]*.
(20) The above segmentation is essentially based on size and product range, which is in line with Schneider's commercial and strategic vision. Nevertheless, it also reflects how internationally diversified the firms are. The "mega-players", principally Schneider, ABB and Siemens, are generally active in a large number of Member States, while some of the "mature players" tend to restrict their business to a small number of territories. [...]*, for example, focuses mainly on France, Germany, the Netherlands and Portugal, while [...]* achieves more than half its turnover in Germany and [...]* focuses essentially on Italy.
(21) To summarise the above, the following table shows the activities of the main manufacturers (***= vast range of products sold in most Member States, **= gaps in product range or coverage, *= large gaps in product range or coverage):
Table 2
TABLE
A.2.3 Wholesalers
(22) Wholesalers are local distributors offering the whole range of equipment needed by installers or panel builders to carry out an electrical installation. As indicated by the parties, they perform a local-level distribution and logistical function, but they also have a product selection role and sometimes, for certain products and customers (such as small installers), a financing role for the purchase of the products, even providing technical advice. It is wholesalers that purchase directly from the manufacturers.
(23) Relations between wholesalers and manufacturers are governed by contracts, which generally last one year but which are renewable. These contracts are negotiated at various geographic levels (essentially local and national) and for various product lines. Generally speaking, they include discounts per product line from the manufacturer's catalogue price. These discounts are in relation to the volume of sales for the products concerned. In addition to this first discount, contracts with wholesalers contain further rebates designed as incentives (they are progressive, for example) to develop certain product lines or increase general sales of the manufacturer's products. The rebates are calculated at the end of a period. These distribution agreements may sometimes be governed by European agreements, but which tend to be general in scope and contain no financial provisions.
(24) The role of wholesalers and their importance in the logistical chain varies significantly from one type of equipment to another. The data provided by the parties and corroborated by the Commission's investigations show that wholesalers are more or less absent from the market in sales of equipment for main switchboards, but they are involved in some 80 % of sales of distribution board equipment and cable trays, and in almost all sales (more than 90 %) of equipment for final panelboards and downstream of them.
(25) These differences mainly reflect the fact that installers tend to make most of their purchases from wholesalers, while large industrial customers and panel builders more frequently buy directly from the manufacturers. Products bought mainly by installers or small and medium-sized panel builders (components for distribution boards and final panelboards, cable trays and busbar trunking, and equipment downstream of the final panelboard) are mostly sold by manufacturers via wholesalers. Products for large industrial customers or panel builders, on the other hand, such as components for main switchboards, will generally be supplied directly by the manufacturer.
(26) The Commission's investigation also shows that the size and the degree of concentration of wholesalers may vary significantly from one Member State to another. Distribution is highly concentrated in France around the Rexel and Sonepar groups, but seems to be much more fragmented in Spain and Portugal. According to internal documents(8) of the parties, these differences in structure affect the conduct of wholesalers in the countries concerned. It would appear that in countries where wholesalers are more fragmented, such as Portugal, competition between wholesalers is generating a price war which is felt at the level of the manufacturers.
A.2.4 Panel builders
(27) Panel builders are the professionals that assemble the various components of an electrical switchboard for a building. In practice, they perform four functions: (i) they design and adapt switchboards to meet the specific needs of each customer; (ii) they supply and mount the various switchboard components (cabinet components, circuit breakers, fuses, etc.); (iii) they wire up the switchboard, and (iv) they check that the switchboard works properly. They then supply the ready-to-use cabinets to an installer, who will place them for the final customer. In practice, panel builders primarily work on main switchboards and distribution boards. Final panelboards are simpler and are usually adapted and assembled directly by the installer.
(28) The size and number of panel builders varies depending on the currents (and thus the complexity of the installation) involved. According to the parties, there are some 3000 panel builders in France capable of assembling switchboards up to less than 630 amperes, but only 300 for switchboards up to 1600 amperes. Furthermore, some panel builders may be vertically integrated. For example, a number of manufacturers such as ABB and Siemens have their own panel building outfits in certain countries. Likewise, some panel builders may also make or modify certain switchboard-related components (such as busbars or protective sheet metal), or even work directly on the installation.
(29) A further point to note is that large panel builders working on complex jobs (such as main switchboards) more often than not obtain their supplies directly from the manufacturer, whereas smaller panel builders that essentially work on distribution boards tend to purchase their components from wholesalers. For logistical reasons, purchases made by large panel builders directly from the manufacturer may sometimes pass through a wholesaler (which acts in a purely logistical role).
(30) Lastly, panel builders may be approved by manufacturers. Such approval certifies that a panel builder has the technical capacity to use the manufacturer's products. In most cases, a panel builder is approved by a single manufacturer, which will then be the panel builder's main supplier.
A.2.5 Installers
(31) Installers are the professionals that install low-voltage electrical equipment for the end customer. They frequently also choose the range and brand of equipment, except in the case of components for main switchboards, which are selected by the panel builders or specified by the project managers, and of "visible" components (sockets, switches, etc.), which are traditionally chosen by project managers for large commercial or residential buildings or together with the end customer for small residential buildings.
(32) This category is relatively fragmented and diverse, comprising a large number of participants (more than 30000 in France) ranging from sole artisans to firms with more than 10 employees and a design office. None the less, as with panel builders, the parties consider that a relationship can generally be established between the size of the firm and the complexity of the installation. Small installers tend to work on final panelboards and wiring accessories (sockets, switches, etc.) in small buildings. For example, the parties state that since final panelboards are less technical than distribution boards, "artisans are often companies of 2 or 3 people comprising the owner with a worker and/or apprentice; it is the owner's wife who orders from the distributor. For reasons of availability and ease of assembly, they buy the whole [of the panelboard in the same brand]*"(9). Medium-sized installers (3 to 10 employees) are generally hired for projects involving distribution boards. Larger installers (10 employees plus) focus on main switchboards. Large installers can be compared to panel builders.
(33) As indicated above, installers obtain supplies almost exclusively from their local wholesalers. Moreover, they tend to keep very limited stocks of products. Wholesalers may supplement their traditionally logistical role with financing services (since the artisan is usually paid only on acceptance of the installation). It has also been found that, in a growing number of cases, installers may require technical advice or even specification services from the wholesaler, especially where complex systems are involved.
(34) Installers are also increasingly using electrical installation design software supplied with or without charge by the manufacturers. This kind of software saves installers time on the design of the installation and the choice of products and they are specific to each manufacturer. The Commission's investigation showed that, in practice, installers use only one or two different manufacturers' programs on account of the time, and thus the cost, required to learn how to use them. The distribution of such software therefore has the purpose and effect of strengthening the loyalty of installers to a manufacturer's products.
A.2.6 Project managers
(35) Project managers are architects, engineering consultants, construction and public works firms or property developers responsible for projects involving the installation of electrical equipment. They are usually involved only in major projects (industrial and commercial as well as residential) and do not buy the products themselves. However, by defining technical specifications for the installation (and sometimes the brand of product), they can end up in the role of specifier.
A.2.7 Customers
(36) End customers are individuals or firms that own the buildings in which the electrical equipment is to be installed. The sector has traditionally divided end customers (on a basis taken up by Schneider and Legrand) into two main groups: industrial applications and construction. The construction sector is then sometimes further subdivided into commercial and residential customers.
(37) With the exception of certain components specifically for industrial use (such as control and signalling units or transformers and supply equipment), a given item of low-voltage equipment (such as a circuit breaker) can be used in an identical way by the two categories of customer. This is particularly true of electricity distribution components, cable trays and most installation accessories.
(38) Nevertheless, there are important differences between industrial and construction projects. In particular, most construction projects involve small-scale installations carrying relatively moderate levels of electrical power (distribution board or final panelboard level). Moreover, for projects of this type, end customers and specifiers have significant influence over the choice of range and brand only as regards "visible" equipment (sockets, switches, trunking, etc.). The choice of brand and range of other equipment (panel components, cable trays, etc.) is made by the installer or, as appropriate, the panel builder.
(39) Industrial projects, on the other hand, often involve high currents (such as those distributed by main switchboards). Furthermore, they may go beyond the simple distribution of electric power and also involve specific equipment for automation, process control, etc. Lastly, the end customer or project manager has greater influence over the choice of brand.
(40) The extent of equipment supplied for industrial applications may therefore differ from that for commercial or residential applications. The type of demand (current, value of the contract) from industrial customers may also significantly exceed that of an average construction contract and be comparable to the largest contracts of this type.
(41) It follows that, in most industrial contracts and major construction contracts, manufacturers sell the electrical equipment concerned directly to the end customers (for large industrial sites) or large panel builders. The situation therefore differs from that of traditional construction contracts, where sales are usually made via wholesalers. Furthermore, contracts in this sector are more predictable and fewer in number and, according to Schneider's internal documents(10), [...]* than in most construction deals. Lastly, the specifications may be quite distinct, for example, with greater emphasis on the use of Community standards than on national installation standards or habits.
(42) In practice, it follows from the above that, although manufacturers are as a rule all present on all the segments, their reputation and competitive position may vary significantly from one type of application to another. Legrand, for example, has a reputation for excellence in the residential sector, while Siemens and ABB seem to have traditionally focused on industrial customers.
A.3 IMPORTANCE OF STANDARDS
(43) Since low-voltage electrical equipment will enter into contact with electric current, the various categories of equipment are subject to rules designed to ensure that their use does not endanger human life or health or property. These rules affect the design of the products. In addition, to the extent that there is a variety of standards applicable within the EEA, the rules also affect the scope for marketing products in the different Member States.
(44) Various categories of rule and standard must be distinguished:
A.3.1 The Low Voltage Directive
(45) First, there are mandatory rules, primarily Council Directive 73/23/EEC of 19 February 1973 on the harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits(11) ("the Low Voltage Directive"), subsequent directives and the national legislation adopted by the Member States to apply them.
(46) The Low Voltage Directive does not contain precise rules regarding the manufacture of products but is confined to setting a minimum safety level that such products must reach ("essential requirements") in order to move freely within the EEA. It leaves it to European standardisation bodies such as the European Committee for Electrotechnical Standardisation (Cenelec) to draw up, on a mandate from the Commission, harmonised European standards, which do not have any legal force but which guarantee to manufacturers and users, by way of a legal presumption, that the products which comply with them also meet legal requirements.
A.3.2 Product standards issued by standardisation bodies
(47) Besides harmonised European standards, which are linked to European legislation in that they flesh out the essential requirements of the directives, other standards exist that have been adopted by various standardisation bodies at international, European and national level, such as the International Electrotechnical Commission (IEC), Cenelec, the Union technique de l'électricité (UTE) in France, the Deutsche Elektrotechnische Kommission (DKE), a joint German standards institute (DIN) and German electrotechnology association (VDE) body in Germany, and so on. These standards also lay down precise requirements regarding the manufacture of the products concerned. Compliance with them is not required by law.
(48) The main interests (manufacturers, users, etc.) are represented within the standardisation bodies. The IEC is the international federation, and Cenelec the European federation, of the national bodies. Within these two bodies, technical committees and sub-committees exist for the various categories of product, made up of delegations from the corresponding national committees and sub-committees. Only the chairpersons and secretaries of each committee and sub-committee are appointed for a fixed period. The members of the national delegations are appointed on an ad hoc basis for a specific meeting or series of meetings. The manufacturers usually try to be represented on committees dealing with the products that they make, so as to be involved in the standardisation process. An international presence is therefore an advantage since it enables participation at several levels. Each of the parties devotes considerable resources to their involvement in standardisation work.
(49) Cenelec standards are usually (in 80 % of cases(12)) adopted following the production of a standard by the IEC, and they follow the IEC standards, sometimes with certain adaptations. Cenelec standards are binding on the national standards bodies. They have to be adopted as national standards without modification, and any national standards that do not comply with Cenelec standards must be abolished(13).
(50) The parties state that harmonised European standards exist for most electrical distribution equipment. However, the harmonisation process in Europe remains incomplete. Many products are covered by European standards that do not harmonise all their characteristics. For example, no attempt has been made to harmonise the pin configuration of electric sockets.
A.3.3 Installation rules and habits
(51) Installation rules and habits do not apply to the manufacture of the actual products, but to the way in which they must be connected to the network (e.g. neutral point treatment), which often has repercussions for the configuration of the products themselves. These rules are normally laid down by standards bodies (IEC, Cenelec or national bodies). They are sometimes adopted by public authorities (such as in the case of the French decree of 2 October 1978 regarding establishments open to the public, which contains certain rules on emergency lighting(14)). Lastly, there may be mere habits or traditions followed by installers in a given country or region. While such installation habits are not obligatory in any way, they oblige manufacturers de facto to make products in a certain way if they hope to have any success in marketing them in the countries concerned.
(52) Among installation rules and habits, mention must also be made of requirements laid down by certain companies. Electricity distribution companies, for example, lay down rules on the equipment to be connected to the mains supply. These rules, binding de facto on electrical equipment manufacturers, may be national in scope, such as in the case of Electricité de France (EDF), or may be regional or even local, as in the case of certain regional distribution companies in Germany and Austria.
A.3.4 CE marking and national quality labels
(53) There are two types of marking: CE marking and national quality labels.
(54) The Community directives require the CE mark to appear on all products covered by the Low Voltage Directive. The manufacturer has sole responsibility for affixing the mark on its products and by doing so declares that they comply with the Directive's requirements. The requirements cover the product characteristics and the conformity assessment procedures that must be applied before they are placed on the market. Manufacturers may refer to "harmonised" standards to show that their products comply with the essential requirements of the directives, although the procedures laid down may require the intervention of a third party. The CE mark ensures in law the free movement of goods within the EEA.
(55) Quality labels (such as NF in France, VDE in Germany or CEBEC in Belgium) are granted by an independent certification body at the manufacturer's request following tests carried out by a recognised laboratory and on payment of a fee. The quality label certifies that the product complies with the applicable standards (international, European or national).
(56) It is not usually compulsory to obtain the quality label. However, there are exceptions. In France, for example, the French quality label is compulsory for emergency lighting systems. Even though it is not a legal requirement for manufacturers to obtain a country's quality label in order to sell their products there, it is a commercial necessity. Installers and end customers often require it, since the quality label constitutes an assurance that the products bearing it are safe and reliable. This is particularly important for electrical equipment, which, if it is faulty, may cause serious accidents. Confidence in national labels is strengthened by the fact that, unlike the CE mark, they are issued by independent bodies.
(57) The relative importance of the CE mark and the quality label in the eyes of installers and consumers is reflected in their position and visibility on electrical goods. Where both markings are used on a product, the quality label is highlighted by the manufacturer, while the CE mark is often much less visible. On circuit breakers, for example, the quality label is placed on the front of the product and is often brightly coloured. The CE mark is generally placed on the side of the product, and its colour is more often than not the same as that of the product itself.
(58) Arnould, a Legrand subsidiary, summarises the importance to consumers of national quality labels as follows(15):"The NF label reflects the voluntary commitment of the manufacturer, which chooses to submit its products to a rigorous certification procedure. The NF label is evidence of compliance with French and European standards. It is issued by an independent certification body on the basis of comprehensive product tests and audits of the manufacturing sites. It is maintained subject to regular checks. The NF label is a guarantee of far more than just safety. It is a guarantee of the reliability and quality of electrical equipment. In practice, using electrical equipment with the NF label ensures the smooth operation of your installation."
(59) In its product catalogue for 2000, Legrand gives the following explanations on the CE mark(16):
"The CE mark appears on Legrand electrical and/or electronic goods or on their packaging. It is compulsory under European Community Council directives. [...]* In no circumstances can the CE marking replace a quality label. In France, it allows customs officials and anti-fraud officers (from the DGCCRF) to authorise the free movement of any product bearing the CE mark. The manufacturer has sole responsibility for affixing the CE mark on its products or their packaging. The products are not checked for conformity (with national and international safety and performance standards) by an external body."
(60) Likewise, CEBEC, the Belgian certification body, explains(17):
"Belgian and European law require goods to conform to Community directives and thus to bear the CE mark. All goods must bear the CE mark and any which do not are not authorised to be placed on the market. The CE marking as such serves only to enable products to be placed on the market and contains no additional information [...]*.
Many directives applicable to electrical goods apply a conformity assessment formula that does not involve the intervention of an independent laboratory or recognised body. The CE marking is nothing more than a declaration by the manufacturer that the essential requirements have been met.
The CEBEC label reflects ongoing conformity with international safety standards, as certified by an independent and reputable certification body.
Consumers will continue to demand electrical goods with an independent certification. The equipment and installation industry needs ongoing conformity with international standards. The CE mark does not guarantee this, but the CEBEC label does."
(61) In most Member States, national certification bodies are also responsible for product standardisation. In some countries (such as Germany or the United Kingdom), there are several certification bodies.
(62) Under the Cenelec Certification Agreement (CCA) concluded between most of the member organisations of Cenelec, any product that has been granted the quality label of a member organisation may obtain the quality label issued by any other body on request and in return for a reduced fee, without further tests being necessary. The fact remains that there is a different quality label in each Member State of the EEA and that electrical goods bear the national label of the country in which they are marketed.
A.4 FUNCTIONING OF THE SECTOR
A.4.1 Description of the vertical chain
(63) The chain of distribution linking all these participants together may be summarised as follows. Demand originates with the end user, who entrusts the design of the electrical installation either to an installer or, for large-scale projects, to a project manager. Once the design of the electrical installation has been outlined, the electrical equipment is generally selected, purchased and placed by an installer, who in most cases obtains supplies from a local wholesaler, which may be a subsidiary of an international wholesaler. The wholesaler itself is supplied by various electrical equipment manufacturers (such as Schneider and Legrand).
(64) When the installation includes switchboards, they must be specifically adapted to the needs of the customer. This means determining the type, number and characteristics of the various pieces of equipment (circuit breakers, fuses, earth leakage switches) to be included in the switchboard. As indicated above, the adaptation and assembly of final panelboards is usually done directly by the installer, since this type of switchboard is relatively simple. The operation is more complex, however, in the case of main switchboards and distribution boards, and must be done be a specialist, the panel builder. In such cases, it is the panel builders that select and purchase the various components, either from wholesalers or, in the case of the larger panel builders, directly from the manufacturers.
(65) For the sake of completeness, it must lastly be pointed out that manufacturers may sometimes sell directly to certain end users (e.g. certain producers of machinery or equipment using low-voltage electrical equipment such as plug and socket outlets or control and signalling units). Moreover, some end users sometimes choose and place their electrical equipment themselves, purchasing it from hypermarkets or DIY shops. The volume of such sales is minimal however, and does not call into question the general description above.
A.4.2 Importance of installers and panel builders
(66) As indicated above, end users and project managers tend to be involved to a significant extent only as regards the choice of "visible" equipment (sockets, switches, trunking, etc.), for which, according to Legrand's internal documents(18), their main selection criteria are "aesthetic and functional".
(67) Components for main switchboards and distribution boards are generally chosen and purchased directly by the panel builder. The other equipment concerned (components for final panelboards, cable trays, etc.) is chosen by the installer.
(68) It follows that installers (and, to a lesser extent, panel builders) play a dominant role in the choice of the electrical equipment concerned. As pointed out by Legrand(19), "demand for Legrand goods is principally determined by the extent to which electricians and project managers require Legrand products from wholesalers".
(69) Attracting this population therefore constitutes one of the critical factors of competition between electrical equipment manufacturers. It is all the more important given the fact that medium-sized installers and panel builders tend to remain loyal to the brand that they habitually use.
A.4.3 Importance of wholesalers
(70) As indicated above, small and medium-sized installers and panel builders obtain supplies from wholesalers within the locality of their business. Only large industrial customers or panel builders (working on the main switchboard market) may find it worthwhile to purchase directly from the manufacturers.
(71) There is therefore a split between large projects (or projects involving large amounts of power), for which the manufacturers will sell directly to end customers and large panel builders and installers, and other installations, for which wholesalers will be the unavoidable intermediary between manufacturers and installers (or panel builders). As explained above, wholesalers are not involved in sales of components for main switchboards, but they are the outlets for between 80 % and 90 % of other types of electrical equipment.
(72) It follows that access to wholesalers constitutes an extremely important factor of success for manufacturers of electrical equipment other than components for main switchboards. It is important to note that, according to the parties, all manufacturers will not necessarily have access to the same wholesalers. The largest manufacturers tend to work with major international groups (such as Rexel, Sonepar or Hagemayer in France), while smaller manufacturers have more of a regional presence and work with smaller wholesalers.
A.4.4 Selection criteria
(73) It follows from the above that the competitive position of the various manufacturers will largely be determined by (i) their ability to establish brand loyalty amongst installers and panel builders and, therefore, to meet their expectations; and (ii) their access to wholesalers, at least in those Member States in which wholesalers are sufficiently established.
(74) Reports by certain analysts(20), confirmed by Legrand documents(21), indicate that the main criteria on which installers base their choices of product are (i) quality and safety of equipment, (ii) ease of installation (which cuts installation time and thus the installer's costs), (iii) compatibility with local tastes and standards and (iv) long-term availability of the product (which means faulty parts can be replaced and new manufacturers do not need to be found for each job).
(75) The findings of the Commission's investigations confirm the importance of these factors. They also show that quality and safety of the products are essential requirements, without which a manufacturer cannot hope to sell its goods. Lastly, they show that the relative weight of the different criteria can vary as between installers and panel builders. The immediate availability of the goods is a determining factor for installers, which do not keep stocks, but is less crucial for panel builders. Likewise, panel builders appear to place less importance on brand than do installers.
(76) The Commission's findings also confirm that price is not the fundamental criterion in the choices of installers in most Member States. This is explained by the fact that (i) electrical equipment represents only a relatively small (usually around 20 %) part of the contract, the rest being accounted for essentially by labour costs, (ii) installers (like project managers or panel builders) will tend to give priority to the safety and quality of the installation (for reasons of liability, and to avoid having to return to the site, etc.) and (iii) a difference in price can be more than compensated for by other factors, such as installation time (given the importance of labour costs as a proportion of the total contract, a 10 % gain in installation time would be more profitable to the installer than a 10 % discount on the price of the equipment).
(77) These selection criteria also go a long way to explaining the loyalty of installers and panel builders to brands. As explained by one manufacturer(22), "the attitude of the participants in the distribution chain is very conservative. Reasons of quality, safety and civil liability are certainly strong incentives for purchasing known brands". Installers and panel builders also have a strong incentive to use products of one brand or of a small number of brands as this gives them better knowledge of the products and, ultimately, implies substantial gains in installation time and thus labour.
(78) The criteria on which wholesalers select goods must obviously follow the criteria of their customers, installers and panel builders. However, there are also a number of factors specific to wholesalers. In particular, the parties state that wholesalers tend to keep down the number of their suppliers and the brands that they distribute for each category of product, for reasons of cost, storage, computer systems operation, technical and commercial training of staff, etc. This tends to favour manufacturers with well-established brands and manufacturers with a wide range of products.
A.5 CONCLUSION
(79) To summarise, low-voltage electrical equipment is used in three types of application: industrial plants, commercial buildings and residential buildings. For industrial and large construction contracts with high power requirements and thus involving the design of main switchboards, the equipment is generally chosen by a project manager or large panel builder and supplied directly by the manufacturer. For other types of contract, most equipment is chosen and purchased directly by an installer or panel builder (via a local wholesaler), and the end user tends only to choose the "visible" components on the basis of aesthetic or possibly practical considerations.
(80) Excepting main switchboards, the primary concern of manufacturers is thus to obtain sufficient listing with wholesalers and to convince installers and panel builders to choose their products on the basis of the reputation of their brands, their range of products and their immediate availability.
(81) Installers are swayed by the safety and reliability, availability and ease of installation of products, which tends to make them loyal to a given brand. Wholesalers follow the wishes of their customers (installers and panel builders), and look for suppliers with the widest possible range of products.
(82) Manufacturers therefore compete primarily on brands, by which they attempt to distinguish themselves from their competitors and retain the loyalty of installers and panel builders. Manufacturers also seek to develop the widest possible range of products, which is vital as regards switchboards, and a significant advantage as regards other types of component.
(83) These characteristics, which are common to all the product markets affected by the merger, create significant barriers to entry (access to wholesalers, development of a brand and an extensive product range), and diversification increasingly takes place by way of external growth (acquisitions). Generally speaking, markets are becoming increasingly concentrated.
B. DEFINITION OF RELEVANT MARKETS
B.1 ELECTRICAL SWITCHBOARDS
(84) This section looks at the effects of the merger on electrical switchboards, i.e. main switchboards, distribution boards and final panelboards. Schneider and Legrand both produce distribution boards and final panelboards. Schneider also produces main switchboards.
B.1.1 Electricity distribution equipment and how it is organised
(85) Electricity distribution within a building (residential building, commercial building, factory, etc.) is handled by a number of successive equipment stages which allow electricity to be supplied from the grid connection to the various items of electrical apparatus used in the building.
(86) A low-voltage electricity distribution system thus uses a number of interconnected switchboard stages from the main switchboard (or distribution board in smaller installations) to the final panelboards. Further downstream, wiring accessories such as sockets and switches are connected to the switchboards by means of cables and wiring.
(87) Electricity distribution and the protection of electrical equipment and/or persons are carried out within the electrical switchboards, which are accordingly the key components of the system. Two switchboards belonging to two consecutive equipment stages are interlinked by means of electrical cables. Current levels in cables and switchboards decrease with each successive step away from the point of connection to the power grid. The main switchboard is thus the point at which the current is highest. Current strengths decrease at each successive stage, i.e. distribution board, final panelboard and sockets and switches. Annex 1 shows the typical layout of a low-voltage electricity distribution system and the position within it of the various types of equipment described above.
B.1.2 Selecting components
(88) Switchboards comprise various components enabling them to perform their protective function, and these are housed in a cabinet (steel or plastic). Such components include circuit breakers, fuses (for the protection of equipment), earthing (for the protection of persons) and various other items.
(89) The type, number and size of these components depend essentially on the relevant distribution level and on the type of equipment being used downstream. Thus, main switchboards essentially contain heavy-duty circuit breakers and moulded case circuit breakers. Distribution boards mainly contain moulded case circuit breakers and miniature circuit breakers. Lastly, final panelboards contain miniature circuit breakers and earth leakage switches.
(90) In practice, each type of switchboard has to be designed specifically to meet the particular requirements of the installation it has to protect (these are dictated by the layout of the premises and their use). Its size will depend on the characteristics of the electrical installation in use downstream (electrical power, number of circuits handled, etc.). Consequently, each switchboard is a one-off design, and the combination of components used can vary substantially from one contract to another. The information provided by Schneider(23) thus suggests that a component in a given final panelboard (even one of the most widely sold) is generally used in less than one board out of five.
(91) Main switchboards are situated downstream of the connection to the medium-voltage electricity supply, generally just after a transformer substation. Main switchboards are used to control electricity distribution mainly in large commercial buildings (more than 5000 m2). Distribution boards are used to control electricity distribution on a floor of a large commercial building and are thus, within the electricity distribution system, situated downstream from a main switchboard. Final panelboards are the last stage in an electricity distribution protection and handling system. Panelboards are generally situated at the level of an individual dwelling or small group of offices. In contrast to main switchboards and distribution boards, final panelboards are generally installed in such a way as to be accessible to non-professionals and are therefore required to meet stricter protection standards than main switchboards and distribution boards.
(92) Main switchboards essentially consist of (i) heavy-duty circuit breakers with a nominal rating of between 630 and 6300 A; (ii) moulded case circuit breakers with a nominal rating of 400 to 1600 A; (iii) fuses (400 to 1600 A); (iv) cabinets and cabinet components; and (v) wiring.
(93) Distribution boards essentially consist of (i) moulded case circuit breakers with a nominal rating of between 100 and 250 A; (ii) miniature circuit breakers with a nominal rating of up to 125 A; (iii) fuses; (iv) cabinets and cabinet components, generally metal; and (v) wiring.
(94) Lastly, final panelboards essentially consist of (i) miniature circuit breakers; (ii) earth leakage protection; (iii) fuses; (iv) an enclosure (generally plastic), similar to the cabinet used for distribution boards. One of their features is that they provide for a system of fixing to the board by clipping on to DIN (i.e. standard) rails.
(95) The price (excluding installation and labour) of these various types of switchboard is made up as follows:
Table 3
TABLE
(96) This table shows that the various components account for widely differing proportions of the overall price. In particular, it may be seen that circuit breakers (and, where applicable, earth leakage protection) often play a key role in the choice of manufacturer, since these are the components which determine almost all of the performance and most (between 50 % and 70 %) of the value of the switchboard.
(97) The following paragraphs look at the role and use of each type of active component (circuit breakers, earth leakage protection, etc.) and at the parameters determining the selection of the type of component and the performance of each component, with a view to their integration into an electrical switchboard.
Two types of protection to deal with two types of risk
(98) The type of products used (circuit breakers, fuses, earth leakage protection, etc.) is initially determined by the type of protection to be provided by the switchboard. In practice, two types of protection may be distinguished: first, the protection of property, equipment and the electrical installation itself (in particular, against the risks of fire and overheating in the event of electrical overcurrent(24) or short circuit); and, second, the protection of persons (against the risk of electrocution resulting from a leakage of current due to accidental contact between a live conductor and a user).
Protection of the system: circuit breakers or fuses
(99) Protection against overcurrent and short circuits is provided either by circuit breakers or by fuses. These two types of component cut off the current in the event of an overcurrent or short circuit and thus perform the same protective function. However, they do not work in the same way. Circuit breakers are electromechanical devices which interrupt the current by tripping a switch. Fuses interrupt the current through the melting of a conductor brought about by overheating due to an abnormal increase in the electric charge passing through it.
(100) The technology used in circuit breakers and fuses is thus different. Furthermore, once the cause of the overload or short circuit has been eliminated, a fuse must be replaced (since it has melted in order to cut off the current), whereas a circuit breaker will simply have to be reset (i.e. the circuit breaker switch must be reset to the normal operating position).
Protection of persons: earth leakage protection or circuit breakers
(101) The risk of electrocution may result either from direct contact between the user and a live conductor (phase conductor) or from indirect contact. Indirect contact arises where the user touches part of an electric apparatus which is itself accidentally in contact with a live conductor.
(102) In the event of direct contact between a person and a live conductor, an electric current may pass through the person's body. The seriousness of the situation depends both on the strength of the current and the period of time during which the person is exposed to the current. The greater the strength of the current, the shorter the period of time of exposure to the current must be.
(103) Protection against electrocution is provided by devices which detect the current leakage (i.e. the current passing through the user's body in the event of accidental direct contact with a live conductor) and cut off the electricity supply immediately (generally in less than 0,1 second). Such devices are known as earth leakage protection or residual current devices. The principle on which they work is to measure the difference between the strength of the current entering and leaving the installation. Normally, the difference is zero. Where there is accidental contact between a person and a live conductor, there is a leakage of current through the person's body. This leakage, entailing a difference between the current entering and leaving the installation, is detected by the earth leakage protection, which automatically cuts off the current in order to protect the person.
(104) In a low-voltage electrical installation, the use of highly sensitive earth leakage protection is the main means of protecting persons against the consequences of accidental direct contact with a live conductor, whatever the neutral point treatment used. Earth leakage protection is thus an essential element in ensuring the safety of persons. However, the conditions under which it has to be provided are not identical in all Member States.
(105) As stated above, the risk of electrocution may also arise through accidental indirect contact. This occurs when a live wire within a piece of equipment accidentally comes into contact with an external part of the equipment which the user can normally touch without incurring any risk. When the user touches the electrical equipment (for example, an oven), the person may then be in contact with the electrical current transmitted indirectly by the equipment.
(106) In this second case (accidental indirect contact), the protection of the user is based essentially on earthing, i.e. the establishment of an electrical connection between the ground and the electrical device, certain parts of the electrical installation and/or certain items of equipment.
(107) Earthing requires either the use of earth leakage protection (as in the case of direct contact) or the use of circuit breakers. The choice depends on the neutral point treatment, i.e. the way in which the exposed conductive parts(25) and the neutral conductor(26) are connected to the ground.
The importance of neutral point treatments
(108) There are three types of neutral point treatment, depending on how the exposed conductive parts and the neutral conductor are connected to the ground. These types of treatment are designated by two letters, the first indicating how the neutral conductor is earthed and the second how the exposed conductive parts are earthed: "TT" (exposed conductive parts and neutral conductor directly connected to the ground), "TN" (exposed conductive parts connected to the neutral conductor, which is itself directly connected to the ground) and "IT" (neutral conductor connected to the ground through an impedance, exposed conductive parts directly connected to the ground). There are also two variants of the TN method: "TNC" (in which a single conductor is both the neutral conductor and the protective conductor) and "TNS" (in which the neutral conductor is distinct from the protective conductor).
(109) Where there is a leakage of current (through faulty insulation or accidental contact with a live conductor), the neutral point treatment is of crucial importance, since it determines the intensity of the leakage current (fault current), and hence the strength of the shock received by the person. Thus, the TT method results in fault currents which may amount to several amps or tens of amps. The TN method may result in fault currents of the order of several hundreds (or indeed thousands) of amps, since, in this method, a fault current produces an immediate short circuit between a phase(27) and the neutral conductor. Lastly, under the IT method, the fault current is weak (several tens of milliamps), since it is limited by the impedance of the neutral-earth connection.
(110) All this has important consequences for the design of the electricity distribution installation.
(111) Under the TT method, an insulation fault or accidental contact between a phase and an exposed conductive part produces a current leakage through the earth electrode of the installation. The exposed conductive part (i.e. the external part of electrical equipment which the user can normally touch) is then live. In order to protect the user from the risk of electrocution as a result of accidental contact with the conductive part (electrocution through indirect contact), current leakage through the earth electrode must be detected and the electrical power supply cut off very rapidly. This is the function of the earth leakage protection described earlier. The TT method thus necessarily involves the use of earth leakage protection in order to protect persons against the risk of electrocution through indirect contact. The sensitivity of the earth leakage protection used in the TT method to protect persons against indirect contact varies generally between 30 milliamps (high sensitivity) and 300 or 500 milliamps (medium sensitivity).
(112) Under the TN method, an insulation fault or accidental contact between a phase and an exposed conductive part does not result in an actual current leakage, but in a short circuit (between phase and neutral). The neutral conductor then carries a very strong current. Protection of the user against the risk of electrocution through indirect contact is provided in this situation mainly through circuit breakers (and not by earth leakage protection, except under the TNS method) with a low tripping threshold (ensuring that they are tripped rapidly). Fuses may also be used instead of circuit breakers.
(113) Lastly, under the IT method, as stated previously, the leakage current in the event of an insulation fault or accidental contact between a phase and an exposed conductive part is weak and does not require the cutting-off of the electricity supply. The IT method thus ensures continuity of electricity supply in the event of an initial fault. It is the preferred neutral point treatment in applications (hospitals, airports, etc.) which require such continuity of service. However, it is important that the initial fault be detected so that it can be remedied. If a second fault occurs, the installation using the IT method becomes equivalent to an installation using the TN method (or TT, if the exposed conductive parts are not connected with one another) and a large short circuit (or leakage) current then occurs.
(114) In practice, the IT method results in the use of two types of apparatus: first, an insulation monitoring device to detect the weak leakage current resulting from the first fault; and, second, a circuit breaker or earth leakage device to provide protection against the second fault.
Performance of the components
(115) The next step is to select the size, i.e. the performance, of the components. This means, for example, determining the most appropriate circuit breaker technology (heavy-duty circuit breaker, moulded case circuit breaker or miniature circuit breaker) and, within the relevant category, selecting the most appropriate type. Circuit breakers are characterised essentially by (i) their nominal rating (rating beyond which the circuit breaker is tripped and breaks the circuit); (ii) breaking capacity (maximum current which can be withstood without damage by the circuit breaker in the event of a short circuit); (iii) the number of poles (i.e. the number of conductors, from 1 to 4, which are cut simultaneously by the circuit breaker when triggered); and (iv) their typical tripping curve (reflecting tripping time as a function of current). All these characteristics are directly linked to the neutral point treatment, the power carried by the installation and the other equipment situated upstream or downstream.
(116) The information provided by the parties suggests that the choice of components is generally imposed by the installation. More particularly, it appears that the configuration of the building or industrial unit generally determines the electrical arrangement to be adopted by the installer, and that the relevant arrangement will in its turn determine the performances of the components used in the switchboards.
(117) As Schneider, for example, states, "the increase in the price of a 16 amp circuit breaker, such as is generally used downstream from the installation [...]* and hence used in large numbers in final panelboards, may have a significant impact on the price of the board (and hence, in certain particular cases, lead to a change in the architecture of the installation). However, [...]* it is more the layout of the installation and the need to ensure operating safety that determine the operator's and hence the installer's final choice.".
(118) The parties thus indicate that there is generally an optimum electrical arrangement for a given building, apartment or industrial unit. For example, although one can in theory conceive of a large number of different electrical installations for a given dwelling (with a different circuit breaker for each room, or a circuit breaker for two rooms, etc.), the installer's main concern is operating safety and quality, which will prompt him to increase the number of protective devices (in order to isolate each circuit in the event of a fault and thus ensure that power continues to be supplied to all the circuits which are not affected by the fault). In practice, the layout is often determined using computer software, such as the ECODIAL system provided by Schneider, designed to guide the customer towards an arrangement that will provide optimum service quality, i.e. one not necessarily orientated towards the lowest installation cost. The parties also stress that selecting multiple protection may also make economic sense, since it means thinner (and less costly) electrical wiring.
(119) The arrangement decided on then directly defines the characteristics of each circuit, and hence the performance expected from the various components.
(120) These parameters subsequently determine the choice of the most appropriate components, i.e. those which meet the required performance without exceeding it unnecessarily (for reasons of cost). Although one can in theory use higher-performance components, that would not entail any advantage for the user while at the same time adding significantly to costs. As Schneider points out, "one can in theory use high-breaking-capacity circuit breakers used in Segment 2 for Segment 4, in accordance with the saying 'he who can do more can do less'. But the cost of these items is prohibitive".
(121) Switchboards may contain the following products:
Table 4
TABLE
B.1.3 Definition of product markets
(122) The parties have activities which overlap in the area of low-voltage electrical switchboards and the components incorporated into them.
Product market definitions proposed by the parties
(123) The parties suggest distinguishing three product markets amongst the systems used for protecting persons and equipment in low-voltage electrical installations. The parties propose that such product markets be defined by reference to the level of electrical distribution. They thus distinguish a market for main switchboards, a market for distribution boards and a market for final panelboards.
Solution markets
(124) Firstly, Schneider considers that competition between manufacturers does not take place at the level of switchboard components (which are sold by the manufacturers to wholesalers, and by wholesalers to panel builders and installers), but at the level of electrical distribution "solutions" (i.e. the switchboards themselves) assembled on the basis of such components. The various manufacturers' solutions are, it is argued, substitutable for one another, since they perform the same functions and are subject to the same technical requirements. By contrast, the components supplied by the various manufacturers are not, it is argued, substitutable for one another, either on grounds of technical compatibility (in the case of main switchboards and distribution boards), or because the installers are in general loyal to a brand and thus buy all their components from one and the same manufacturer (in the case of final panelboards). To satisfy this demand, the manufacturers have developed a range of solutions, which means that they must be able to offer all the components comprising each solution. These solutions therefore constitute, it is argued, the product market.
Three distinct markets
(125) Schneider also considers that each type of switchboard (main switchboard, distribution board and final panelboard) constitutes a separate market. In the first place, main switchboards are considered to differ in their technical performances from distribution boards and final panelboards (electrical current levels in particular) and are made up, in part at least, of components which are specific to such category of switchboard (heavy-duty circuit breakers, also known as open air circuit breakers). Conversely, main switchboards do not contain miniature circuit breakers, which are used to a large extent in distribution boards and final panelboards.
(126) Secondly, it is argued, distribution boards differ from final panelboards in that the latter are designed for lower levels of current (less than 125 amp) and distribution boards contain specific components (earth leakage protection in particular) which are not used in final panelboards.
Commission's analysis
(127) The following paragraphs look at the parameters governing competition in the markets linked to electrical switchboards. It is evident from the Commission's investigation that, generally speaking, electrical switchboards comprise a single brand. However, it must also be acknowledged that manufacturers of electrical equipment sell components to wholesalers and that there is therefore competition between manufacturers in selling components. In conclusion, the relevant markets to be taken as the reference in analysing the notified transaction under competition law are markets for components to be incorporated into electrical switchboards.
Switchboards are in most cases single-brand
(128) The Commission's investigation shows that in most cases electrical switchboards (particularly where they are installed) contain components from a single brand. This is attributable to technical constraints (mainly in the case of distribution boards) and commercial habits (mainly in the case of final panelboards).
Technical constraints
(129) Competition between manufacturers is based not only on individual components considered on their own merits, but also on the performance of switchboards assembled through combining such individual components with other components. For example, a moulded case circuit breaker is of limited use if it is not compatible with the other protective devices (other moulded case circuit breakers, miniature circuit breakers, fuses, etc.) making up a switchboard.
(130) However, the information provided by the parties and the results of the investigation show that, in main switchboards and distribution boards, it would not be economically possible to ensure compatibility between certain components of different brands. For example, the parties state that combining components of different brands within a single main switchboard would require panel builders to carry out further tests in order to check whether the board thus assembled worked properly. The costs of such additional tests would amount to between EUR 10000 and EUR 25000 depending on the guarantees to be given, which would be prohibitive for any given switchboard.
(131) Similarly, in distribution boards, the cabinets and certain cabinet components (fixing devices, etc.) sold by a manufacturer are, it is reported, specifically designed for the manufacturer's components. This is because the manufacturers have all developed specific assembly devices designed to make it easier to assemble the board.
(132) A distribution board typically contains a moulded case circuit breaker as incomer to feed and protect a series of outgoings, which are themselves protected and fed by a series of miniature circuit breakers. So as to ensure that a fault on an outgoing results in the cutting only of the relevant outgoing and not all the outgoings connected to the board, any fault occurring on the outgoing must be cut by the protective device specific to that outgoing rather than by the incomer protective device. This is called "selectivity".
(133) However, it is apparent that, at least as far as distribution boards are concerned, such selectivity is based on extremely subtle features (speed of contact opening, quantity of energy which the circuit breaker allows to pass when the current is interrupted, etc.), which are linked to the way in which the products are designed and manufactured. Schneider estimates that two circuit breakers which are identical in terms of the relevant standards may nevertheless have different performances in terms of selectivity, with the result that it is impossible to guarantee the selectivity function as between the various manufacturers.
(134) Component compatibility and selectivity are of crucial importance to the panel builder or installer, since it is these parameters which enable the panel builder to guarantee the performance of the final switchboard and hence to meet the customer's requirements. Since compatibility and selectivity can be ensured only if a single brand is used, panel builders cannot mix components of different brands and will source all the electrical equipment required for a switchboard from one and the same manufacturer. As one panel builder states(28), "there is no mixing of products of different brands. [...]* Installation rules require one and the same brand to be used".
(135) It follows that, in main switchboards and distribution boards, the choice of the brand of one key component, such as the moulded case circuit breaker for distribution boards, generally means that the same brand must be used for all the other protective components required in the relevant board. For example, once a panel builder has decided on the brand of the moulded case circuit breaker to be used in his board he has de facto restricted his choice as regards the other components (cabinet, miniature circuit breakers, etc.) in his board, since he can then use only the brands which will ensure compatibility with the moulded case circuit breaker selected.
(136) Nevertheless, all the board components do not necessarily have to be sourced from the same brand, and there is some mixing of brands in the case of certain components. This appears to be the case particularly for components that do not directly play a protective role, such as cabinet components. The parties' shares of sales can vary considerably in a given territory between the different components put together to make up a distribution board. Schneider's share of the French market in circuit breakers for distribution boards is thus said to be in the range of [50-90] % but not more than [30-40] % in the case of cabinets. The parties consider that these differences are explained by the variety of solutions that can be imagined for a given type of electrical switchboard. If that were the case, the above figures would show that, on average, distribution boards sold by Schneider contained nearly twice as many circuit breakers as those sold by its competitors. That is unlikely to be the case, among other things in view of the variety of Schneider's customers in France. A more plausible explanation would be that, while the mixing of brands is limited in the case of circuit breakers (for reasons of compatibility and selectivity), it occurs more frequently in the case of cabinet components, which are not subject to the same selectivity and compatibility rules as circuit breakers. The same applies to earth leakage protection devices, which are also supplied by specialist firms: for example Baco, a Legrand subsidiary which sells earth leakage protection under its own brand. Lastly, in the case of final panelboards, the market shares as presented by the parties in terms of component categories vary widely from one component to another.
Commercial habits
(137) Combining products of different brands within one and the same final panelboard is technically possible and is sometimes done. However, as the parties point out, final panelboards are essentially put together and selected by installers, who "are in general loyal to a brand and purchase the complete kit from a single manufacturer, for reasons of ease of assembly of the board, the matching in appearance of the products, the functioning of the apparatus and confidence in the technical quality of a manufacturer"(29). Thus, although there are no technical obstacles to the mixing of components in final panelboards, installers usually purchase all their components from one and the same brand.
(138) These factors also demonstrate that having a complete range of products confers a significant competitive advantage on a given brand within this sector. As one manufacturer states(30), "given the way the market is developing with the aim increasingly being to provide complete installations and integrated systems, the room available for small producers or for producers of single components is becoming more and more restricted".
(139) The need to have complete ranges stems firstly from the fact that installers and panel builders will obtain their supplies primarily from brands which provide an assurance of safety and compatibility, whatever the configuration adopted, and hence whatever the choice and assembly of the various components in a switchboard. In view of the diversity of the components which may be incorporated into a main switchboard or distribution board (Schneider has more than 3000 product types for distribution boards), the manufacturers must provide the whole range of protective equipment to be incorporated into such switchboards.
(140) The importance of having full ranges and of not significantly mixing products of different brands is further underlined by other features of the sector. Firstly, as General Electric (GE) states, "panel builders and installers normally try to purchase all their products from a single supplier or make. This reduces their transaction costs, gives them better access to training and maintenance services and ensures that the various components are technically compatible". Secondly, some panel builders and installers have pointed to the availability of price reductions or training sessions, linked to large-scale purchases or to annual purchase volume targets for products of one and the same make. As the results of the investigation show, it is also apparent that having a wide range of products confers a significant advantage in access to wholesalers.
(141) All the parties' main competitors (such as ABB, Siemens or Hager) have complete ranges of components. Any medium-sized manufacturers that do not produce the full range of components must generally make up for this by purchasing the missing type of component from other manufacturers and then integrating it into their own range. This is the case, for example, with Moeller (which obtains heavy-duty circuit breakers from Schneider), Gewiss (which has developed its distribution boards around moulded case circuit breakers supplied by ABB) and Schneider (which purchases fuse switches from ABB and fuses from Holec and Harvey Bubble).
Competition between manufacturers is also component-based
(142) However, the parties' position as regards the definition of the relevant product markets on the basis of the final combination of components in "solutions" does not stand up to closer examination. As the following paragraphs make clear, the parties' position is invalidated by the economic facts, and, as the parties' documents demonstrate, competitive constraints are also component-based.
The economic facts show that the market operates through the sale of components
(143) In its decision of 30 March 2001 pursuant to Article 6(1)(c) of the Merger Regulation ("Article 6(1)(c) decision"), the Commission stated that it did not rule out the possibility that each of the various component categories in electrical switchboards formed a relevant product market. If that were the case, the product markets would then have to be defined on the basis of component categories rather than in terms of "solutions". In its Article 6(1)(c) decision, the Commission noted in particular that many third parties had indicated that electrical components are generally sold as such by manufacturers, who supply them to their wholesalers or to panel builders without integrating them into a complete "solution" (this is left to panel builders and installers).
(144) In the decision, the Commission also noted that some competitors did not seem to be able to manufacture themselves all the components needed for the "solutions" (electrical switchboards) they supplied, that the parties' catalogues did not seem to apply the breakdown between main switchboards, distribution boards and final panelboards which the parties proposed and that, on the contrary, such catalogues divided components up by range or by category on the basis of their performance.
(145) The Commission's in-depth investigation has confirmed that wholesalers, installers and panel builders purchase, and manufacturers sell, components. There is strictly speaking no such thing as the sale of integrated switchboards. The role of panel builders and installers is precisely to build an electrical switchboard to meet the technical requirements of the installation for which it is intended. The design of a switchboard, its make-up, i.e. in particular the circuit breakers (heavy-duty, moulded case or miniature), fuses and earth leakage devices which it comprises and the choice of such components depend primarily on the technical specifications of the installation.
(146) There cannot therefore be any such thing as a "standard switchboard", since each switchboard has to reflect the virtually unique features of the installation into which it has to be incorporated. As Legrand states(31), "the diversity of the configurations observed is very wide and makes it very difficult to define a standard switchboard". The switchboard is thus designed and assembled only at the level of the panel builder, installer and/or design office in contact with the end user.
(147) In their reply to the statement of objections, the parties do not dispute the virtual non-existence of standard switchboards but argue that standard solutions do exist. They stress that building a switchboard always involves mounting the same types of component (circuit breakers, earth leakage protection, cabinet or enclosure components, etc.) and that customers feel the need to obtain standard solutions, as can be seen from the development of software packages designed to assist the demand for which manufacturers have to cater, i.e. the demand from installers.
(148) The Commission does not dispute these remarks, but considers that they cannot under any circumstances be interpreted as proving the existence of standard switchboards. The fact that all switchboards of a given type tend to contain the same type of component shows that all those switchboards fulfil the same purpose, but not of course that they are all identical. The specific nature of each switchboard (and therefore the virtual non-existence of standard switchboards) is furthermore confirmed by the existence of switchboard design software, the purpose of which is to specify the component make-up that best serves the needs of each customer. The Commission therefore maintains that, with the exception of a few standard final panelboards, which relate to only a few specific configurations and account for only a tiny share of sales, there is no such thing as a standard switchboard, and what the parties call a standard solution appears to have more to do with brand cohesiveness.
(149) In general, an electrical equipment manufacturer neither designs nor sells switchboards, but rather sells (directly, or indirectly through the trade) to other companies (panel builders, installers) the components which they require in order to assemble their own customers' electrical installations. The parties' catalogues and those of their competitors are moreover broken down by component category, and not by switchboard type. The catalogues present the detailed technical specifications of the components, without necessarily referring to the switchboards into which they could be incorporated.
(150) In addition, the parties have stated that more than 80 % of low-voltage distribution board or final panelboard equipment is sold through the trade. As Schneider states(32), "[each wholesaler] purchases from the parties the components or sub-assemblies needed to maintain a stock that will allow it to supply the various system configurations which its own customers have to install". This reply confirms the fact that orders from wholesalers in respect of distribution boards and final panelboards relate to components and not to integrated solutions.
(151) In reply to questions put by the Commission(33), Schneider provided, for each EEA country, copies of the main orders for distribution boards and final panelboards and of the invoices relating to such orders. It is quite clear that the orders placed by Schneider's customers relate almost always to components, identified by their specific catalogue numbers, and not to solutions. The few exceptions almost all relate to direct sales to customers other than wholesalers or panel builders. However, as stated above, such sales are marginal (less than 5 % in the case of distribution boards, and less than 10 % in the case of final panelboards).
(152) It is evident from the above considerations that almost all of the parties' sales of distribution boards and final panelboards are in the form of components, and not "integrated solutions". The same applies to their competitors.
There are competitive constraints at component level
(153) A look at the reasons (technical constraints and commercial habits) why switchboard components tend to be of the same brand shows that a hypothetical manufacturer which, while offering the full range of components (a necessary condition for being present on the market), enjoyed a particularly strong position with regard to one type of component would be able to wield market power over that component type.
(154) As far as final panelboards are concerned, it is apparent that the only reason for the use of components of one and the same brand is installers' loyalty to the brand. However, a look at the conditions of competition shows that market shares may vary considerably from one component to another. For example, the results of the investigation show that, in the case of certain manufacturers, market shares can vary by a factor of two from one component to another. Such differences appear to show that competitive conditions are not uniform as between different components.
(155) As far as distribution boards are concerned, the parties, citing technical constraints (compatibility and selectivity), argued that analysis should be based solely on "solutions". They also stress in their reply to the statement of objections that choosing switchboard components of the same brand enables panel builders to make substantial time savings (between 25 % and 50 %) when assembling the switchboard.
(156) Nevertheless, as stated earlier, there does appear to be some mixing of brands, at least in the case of cabinet components. Furthermore, the fact that different brands of circuit breaker are not mixed does not rule out the existence of different competitive conditions between moulded case circuit breakers, key components the choice of which will determine that of the other protective components, and those other protective components. Manufacturers will naturally tend to focus the bulk of their R& D and promotion efforts on these key components rather than on the others. This is confirmed by the figures supplied by the parties in their reply to the statement of objections. These show that in Italy, over the period 1998-2000, the difference between the lowest price (corresponding to special offers) and the highest price (no special offers) was as much as [20-30] % in the case of moulded case circuit breakers but did not exceed [10-20] % in the case of miniature circuit breakers. This suggests that special offers traditionally play a more important role for MCCBs than for other circuit breakers.
(157) Focusing the analysis on components seems all the more appropriate as it is generally at this level that the value of a brand is based. This is also the level at which the parties analyse their own position on the markets for low-voltage electrical distribution equipment. For example, Legrand's "Medium-term plans 2001-2005" for most of the EEA countries give a breakdown of market shares by component category ("power circuit breakers", "distribution [board] circuit breakers", "earth leakage switches", "enclosures"). Conversely, the documents do not include any breakdown by "solution" (i.e. by type of low-voltage electrical switchboard).
(158) The parties' internal documents also include analyses which underline the importance of components as such. For example, Bticino, which forms part of the Legrand group, states(34): "[...]*".Similarly, Legrand(35) has separate breakdowns for distribution circuit breakers and earth leakage circuit breakers. In its three-year plan for [...]*, Schneider stresses the positive effects which it expects the arrival of a new range of [...]* will have, providing a basis for the sale of other products. In [...]*, Schneider expects its range of [...]* to strengthen its position with industrial customers and, conversely, it regards its range of [...]* as responsible for its weak competitive position with customers in the residential sector.
(159) The way these documents stress the strategic role of a component (in this instance, [...]*) provides a clear illustration of the importance of these components in the various manufacturers' competitive strategies. The role of components is also apparent from the manufacturers' advertising aimed at installers and panel builders. Such advertising focuses on the performance of the relevant components and not on the complete solutions which may be assembled from them.
(160) Lastly, it should be noted that [...]*(36).
(161) In their reply to the statement of objections, the parties dispute the existence of market power at the level of components. They take the view, among other things, that the hypothetical monopoly test cannot be applied to a particular type of component, since all manufacturers offer the full range of components. The case of a hypothetical monopoly over a single type of component is therefore, they argue, a scenario that is completely divorced from the reality of the market.
(162) The Commission cannot agree with that view. While the case of a hypothetical monopoly over a single type of component indeed does not correspond to the reality of the market, that does not rule out the existence of competitive conditions (and therefore of possible market power) that differ for each type of component. The fact that all manufacturers have to offer, and installers buy, all the components necessary for building an electrical switchboard does not mean that the competitiveness of the different manufacturers, the characteristics of demand and therefore price setting are necessarily equivalent for all components. In other words, the fact that the hypothetical monopoly test cannot technically be applied at the level of components (since all manufacturers sell all the products) shows that a monopoly situation probably cannot exist at the level of a single component independently of all the others. But this does not, in itself, rule out the existence of market power at component level.
(163) The mere fact (not disputed by the parties) that there are key components shows that certain components are more important than others and that competitive conditions for those components may differ from those prevailing for the others. Furthermore, as stated earlier, there is some mixing of brands in the case of certain components, in particular cabinet or enclosure components.
(164) This is amply confirmed by the figures supplied by Schneider, which show substantial differences between profit margins for the different types of component.
Profit margins
TABLE
Source:
Schneider, reply to the questionnaire of 6 April 2001.
Conclusion
(165) As the Commission stated in its notice on the definition of relevant market(37), "the objective of defining a market [...]* is to identify those actual competitors of the undertakings involved that are capable of constraining those undertakings' behaviour and of preventing them from behaving independently of effective competitive pressure". The aim in defining the relevant market is thus to identify the areas in which a possible dominant operator could exercise market power and to provide a conceptual framework for analysing the conditions of supply and demand in such areas.
(166) The above analysis shows that the manufacturers' market power may be exercised at two levels: at the level of the brands (and therefore the combination of all the components to be incorporated into a switchboard) and at the level of each category of component individually.
(167) The fact that customers frequently choose components of the same brand requires manufacturers to offer a full range of products and guarantee the (technical and economic) performance of switchboards resulting from the assembly of those products. Furthermore, once a particular component (for example a circuit breaker) has been chosen, the other components of a given switchboard will normally be sourced from the same brand. This is the case particularly of the other types of circuit breaker incorporated in distribution boards, on account of the compatibility and selectivity considerations set out above. There is therefore an initial level of competition corresponding to all the components (or at the very least all the protective components).
(168) Nevertheless, it is also clear from the foregoing that (i) components of a single brand are not always chosen, in the case of both final panelboards and distribution boards; (ii) there appears to be more mixing of brands in the case of cabinet or enclosure components than protective components; (iii) the choice of brand is in practice determined by that of certain key components; and (iv) the competitive positions of the different manufacturers can vary greatly from one type of component to another. Competitive conditions are therefore not uniform for each type of component. This is broadly confirmed by the data supplied by the parties in their reply to the statement of objections. These data reveal the existence of special offers that are specific to each type of component (for example, a model of miniature circuit breaker or a type of enclosure), something which strongly suggests the existence of competitive pressures differing from one component to another. And, in the case of distribution boards, these special offers appear to be significantly more generous for key components (moulded case circuit breakers) and components that can be combined with those of other brands (cabinet components) than for miniature circuit breakers.
(169) In their reply to the statement of objections, the parties dispute this analysis and argue on the contrary that the competitive assessment should focus only on the whole switchboard, i.e. the group of components that go to make up a particular type of electrical switchboard. They base their argument in particular on (i) considerations of a technical (compatibility, selectivity, etc.) and economic nature (assembly time) which restrict the mixing of products of different brands, (ii) the tendency of installers and panel builders to choose components of the same brand and (iii) the fact that all manufacturers have to offer and do indeed offer all the components necessary for building an electrical switchboard. They also rely on the findings of a study they commissioned from the consultancy NERA, which in their view demonstrates a very close correlation between the sales volumes for each type of component. The parties consider that this correlation of sales volumes demonstrates the existence of a single market in components.
(170) As stated earlier, the Commission does not dispute the existence of an initial level of competition corresponding to all the components that go to make up a particular electrical switchboard, or the fact that such competition requires manufacturers to offer a full range of products and guarantee the technical and economic performance of switchboards resulting from the assembly of those products. It takes the view, however, that competition occurs not only at that level but also at the level of each type of component.
(171) The Commission also considers that the data supplied by NERA confirm rather than disprove the appropriateness of a component-based analysis. First, manufacturers run a large number of special offers concerning an individual type of component rather than all the components necessary for building an electrical switchboard. In June and July 2000, Schneider is thus said to have offered discounts of [0-20]* % on certain [...]* and rebates of [20-40]* % on certain [...]*. Likewise, Legrand is said to have run special offers specific to certain types of [...]* for final panelboards and, at other times, special offers on certain [...]*. The scale of these offers and the fact that they relate to a single type of component illustrate the existence of specific competition at the level of each type of component.
(172) Second, the data supplied by the parties also suggest that these special offers have a very substantial impact on sales of the items concerned by the offer, but only limited effects on sales of the other components designed to be combined with the item concerned in order to form "solutions". For example, when in January 2000 Bticino offered (in Italy) a discount of [0-20]* % on certain [...]*, its sales of [...]* went up by [0-20]* % in relation to December 1999, but its sales of [...]* rose by only [0-20]* % on the previous month. The difference is even more marked if seasonal variations in sales are taken into account since, in that case, sales of [...]* even fell by [0-10]* % on the previous month (sales of [...]* having risen by [20-30]* %). This suggests that sales promotions on components do not have a uniform effect on all the components necessary for building an electrical switchboard, which again confirms the existence of a second level of competition at component level.
(173) Third, the data supplied by NERA show that there is no significant correlation between the variations in the prices of the different components. Since price variations reflect changes in the supply and demand conditions for the products concerned, this lack of correlation once more illustrates the specific nature of each type of component and confirms that the prices of each type of component are set to a large extent on the basis of considerations specific to that component type (rather than as a result of competitive changes affecting the switchboards into which they are incorporated).
(174) Lastly, the Commission takes the view that the correlation of component sales volumes as observed by NERA does not call into question the existence of specific competition at component level. NERA's correlation calculation takes no account of the seasonal nature of the business. Seasonal variations can, however, occasionally be very wide, in particular during August, when sales volumes can fall by more than 75 % from July levels. By failing to separate out these factors, the data supplied by NERA therefore significantly overestimate the real correlation of sales volumes. To measure the real correlation, the Commission has performed its own calculations on the basis of the data supplied by the parties. These calculations show that, if seasonal sales variations are separated out, the correlation drops significantly to ranges (in the region of 0,7) that do not allow precise conclusions to be drawn.
(175) It is clear that there will always be some relationship between sales of the different types of component, since final sales relate to finished switchboards and these are obtained by assembling the components in question. The Commission nevertheless takes the view that the existence of this relationship does not make it possible to conclude that all the components belong to a single product market. When transposed to another sector, the line of argument developed by NERA would be tantamount to considering that, since there is (probably) a relationship between sales of car tyres and engines (sales of both these components being linked to car sales), tyres and engines belong to the same product market. Such a conclusion would be absurd given the total lack of substitutability between the two products (on both the demand and the supply side) and fundamental differences in the structure of competition between the two sectors (presence of integrated manufacturers, level of concentration, etc.). It is, furthermore, for this reason that econometric studies on the definition of product markets are generally based on price correlations rather than sales volume correlations(38). The Commission therefore considers that this relationship does not call into question the existence of competitive conditions specific to each type of component, in view in particular of the facts and considerations set out above. The fact that, despite the inevitable existence of a relationship between components, sales of certain components rise whereas those of others fall confirms this analysis once more.
(176) At all events, even if one accepts the importance of component brands and ranges in competition, a brand's strength rests mainly on the competitiveness of the various components. Since a possible monopolistic supplier of a component could derive market power from its position in respect of that component, the competitive analysis must be carried out at the level of each type of component.
(177) The Commission therefore concludes that the analysis of the effects of the notified merger on competition must be carried out at two levels: both at the level of the group of components necessary for building a particular type of electrical switchboard (this being the level adopted by the parties) and at the level of the various components to be incorporated into distribution boards and final panelboards.
Product segmentation
Distinction by function type
(178) The Commission notes that the various categories of components used in an electrical switchboard cannot be substituted for one another. For example, a cabinet or enclosure (i.e. a housing, generally metal, consisting of a frame on which external panels and a door are mounted) clearly cannot in any way be regarded as substitutable for a protective device (such as a circuit breaker or fuse).
(179) A distinction must also clearly be made, within protective devices, between circuit breakers and fuses (whose function is to protect the electrical installation against any overcurrent or short circuit), on the one hand, and earth leakage protection (whose function is to protect life), on the other. For the same reasons, earth leakage circuit breakers, which combine the functions of earth leakage protection and circuit breakers, do not seem to be substitutable for the other types of protection.
(180) This segmentation also exists on the supply side, since, according to the parties, each of these types of component is produced on a distinct and specific production line (and, in most cases, in a specific factory). This makes it impossible to switch to the manufacture of any other component category under acceptable economic conditions.
Distinction between circuit breakers and fuses
(181) Fuses perform a similar function to circuit breakers (protection against short circuits and overloads). However, the two components are technically different. Whereas circuit breakers contain an electromagnetic device, fuses work by breaking an electrical conductor which melts in the event of overload or short circuit. Consequently, fuses have to be replaced after a short circuit or overload, in contrast to circuit breakers, which have simply to be reset so long as the current strength has not reached their breaking capacity. Furthermore, a fuse must be accompanied by a disconnecting switch so that the power can be switched off when the fuse is replaced. Lastly, although a fuse is cheaper (to install) than a circuit breaker, it needs more maintenance, in particular for replacements, so that total costs are higher. In view of these differences and of the fact that circuit breakers are easier to use, circuit breakers are more frequently used than fuses and are tending to replace fuses in the long term.
(182) In view of the technical differences between fuses and circuit breakers, the impact this has on the maintenance of electrical switchboards, and the differences in production technologies between the two types of component, it could possibly be necessary to draw a distinction between the two types of product. However, this question may be left open, since it will not affect the competitive analysis of the transaction.
Distinction between types of circuit breaker
(183) Within circuit breakers, a distinction should also be made between heavy-duty circuit breakers, moulded case circuit breakers and miniature circuit breakers. In the first place, each of these types of circuit breaker performs a different function. Heavy-duty circuit breakers are circuit breakers used as incomers in main switchboards, while moulded case circuit breakers are used mainly as outgoings in main switchboards or as incomers in distribution boards, and miniature circuit breakers are used as outgoings in distribution boards or in final panelboards.
(184) As may be seen from Table 4, these differences in use are attributable to the differences in performance between the types of circuit breaker. The information provided by the parties also shows that there are significant price differences between categories. The transfer price within the Schneider group is between [EUR 1000 and EUR 5000]* for heavy-duty circuit breakers(39), between [EUR 1000 and EUR 5000]* for moulded case circuit breakers(40), and between [0 and EUR 50]* for miniature circuit breakers(41).
(185) Lastly, it should be noted that the products are manufactured on different production lines, so that a producer of one type of circuit breaker could not switch his production to other products and market them in the short term.
Distinction between cabinets and enclosures
(186) The information provided by the parties indicates that a distinction should be made between cabinet components for main switchboards, cabinet components for distribution boards and enclosure components for final panelboards. Cabinets and enclosures are metal or plastic items designed to protect the electrical components incorporated into low-voltage switchboards. Cabinets or enclosures form the housing of the electrical switchboard, and to them are added switchboard components (DIN mounting rails, copper busbars, etc.) used for mounting and holding electrical components.
(187) According to the information provided by the parties, there are thus important differences from one distribution level to another. In the first place, modular enclosures (made of plastic, with DIN rails and to a large extent standardised) differ widely from cabinets (made of metal, often including specific components, etc.). Secondly, cabinets used for distribution boards differ from cabinets used for main switchboards in that, in contrast to main switchboard cabinets, which may frequently comprise specific components incorporated by panel builders, distribution board cabinets are described as being more standardised, with the role of panel builders being generally restricted here to assembling "kits" (Schneider's Prisma range, Legrand's Altis or MAS ranges) supplied by the manufacturers. In addition, main switchboard cabinets have to comply with strict technical requirements (relating to electromechanical constraints and short circuit levels) to which distribution board cabinets are not subject.
(188) These differences are also reflected at supply level, since the standardisation of distribution board cabinets and final panelboard enclosures has generally prompted manufacturers to assign specific high-capacity production lines to them, whereas main switchboard cabinets are frequently manufactured on low-volume versatile production lines which can be adapted to the particular requirements of each project.
Mains connection circuit breakers
(189) In addition to the components described above, mention should also be made of another category of products: mains connection circuit breakers. These are devices required by Electricité de France (EDF) in France and by the electricity distributor in Portugal.
(190) Mains connection circuit breakers differ from the other components in that they have (i) an earth leakage function which, as well as protecting the user, is intended to secure the distributor against the theft of electricity; (ii) a charge function (measurement of consumption); and (iii) a multi-calibration function which enables the electricity distributor to adjust the circuit breaker to the customer's requirements.
(191) Two thirds of mains connection circuit breakers are sold to the electricity distributor and one third to installers. Since they are designed to meet the specific requirements of the electricity distributor, there are not at present any substitutable products. Furthermore, mains connection circuit breakers are not incorporated into electrical switchboards. These devices thus form a separate relevant product market.
Conclusion
(192) In the light of the above, the relevant product markets may be defined either at the level of each of the components individually or at the level of the categories of switchboard. This question may be left open since the effects on competition are similar irrespective of the definition adopted. The product markets may be broken down as follows:
Table 5
TABLE
B.1.4 Definition of geographic markets for distribution boards
Geographic market definitions proposed by the parties
(193) The parties take the view that the markets for low-voltage switchboards are European(42). In particular, the parties explained that transport costs are low (less than [...]* % of the cost of the equipment), that production is generally organised on the basis of a limited number of production plants in Europe and that standards have, in their view, been harmonised in Europe.
Commission's analysis
(194) The detailed investigation carried out by the Commission confirms that the markets for equipment used in distribution boards or final panelboards are national. This conclusion is based on the following four considerations. In the first place, there are significant differences between products sold in the different Member States, mainly for reasons to do with the regulatory framework or standards applicable in the Member States and national traditions and habits. Secondly, prices continue to be determined at national level and certain products exhibit considerable price differences, in some cases costing twice as much in one Member State as in another. Thirdly, key competition parameters, both on the supply side (positioning of brands, access to wholesalers) and on the demand side (customer structure and expectations) depend on factors which are essentially national (such as the degree of concentration, the size and geographical scope of wholesalers, the way installers and panel builders view brands and ranges, etc.) and vary substantially from one country to another. Lastly, there are significant entry and growth barriers as between countries.
(195) The national scale of markets is moreover clearly apparent from the parties' own organisation. For example, strategic documents are drawn up country by country. The same applies to parties' presentations to investors. As Legrand states(43), "Legrand is confronted with different levels of competition, depending on the market and the type of products sold. Legrand's main competitors include Hager and Entrelec in France, Gewiss and Vimar in Italy, MK Electric in the United Kingdom [...]*. Some multinational companies such as General Electric, ABB, Siemens, Schneider and Matsushita compete with Legrand on more than one national market".
The products sold by manufacturers vary from one country to another
(196) Significant differences in products sold may exist between Member States. The information provided by Schneider, Legrand and various other manufacturers shows, for example, that the list of the five most widely sold miniature circuit breaker models varies significantly from one Member State to another and that one rarely finds a product model forming part of that list in more than three Member States. Thus, in Schneider's list of the five most widely sold miniature circuit breakers for final panel boards in fifteen EEA countries, the list comprises forty models. Of these forty models, [...]* are sold in France, [...]* in Italy, [...]* in Spain, [...]* in Portugal, etc. Furthermore, only two models are sold in [...]* countries (and none in more than [...]* Member States) and [...]* are sold in fewer than five countries. Similar conclusions may be drawn as regards sales of miniature circuit breakers for distribution boards and sales of earth leakage switches. The same phenomenon is evident in Legrand's sales. Schneider's lists are often completely disjointed, for example as between Greece and Italy (in the case of miniature circuit breakers for distribution boards), or as between Spain and Belgium (in the case of earth leakage protection). Conversely, moulded case circuit breakers are generally sold in most of the countries (at prices which vary considerably, as will be shown below).
(197) This situation is attributable mainly to differing sets of rules or national habits, prompting installers and panel builders to use equipment which differs from one country to another.
(198) In the first place, it should be noted that there are regulatory barriers between Member States. For example, there are "installation rules" which vary from one Member State to another. These rules relate in particular to safety aspects (earthing, cutting of neutral, earth leakage protection for specific high-risk areas, etc.). These standards are mandatory and any electrician who does not comply with them is liable to penal sanctions. The application of these standards results in differences in the components used in low-voltage electrical switchboards. For example, circuit breakers sold in Germany are single-pole (cutting of the phase only), whereas they have to be two-pole in France and in Italy (cutting of phase plus neutral). Similarly, a document issued by the IEC(44) suggests that some countries prohibit the use of earth leakage protection that does not cut neutral, and that some Member States restrict or prohibit the use of AC earth leakage protection.
(199) Secondly, it should also be noted that not all countries use all the neutral point treatments uniformly. In view of the differences of operation between neutral point treatments, the choice of a treatment will often be determined by the application (continuity of service, availability of a maintenance team, risk of fire) and by the quality of the relevant earth electrodes (and hence ground consistency). As far as residential applications are concerned, Germany tends to favour the TN neutral point treatment, whereas the Netherlands, Denmark and Spain prefer the TT method and Norway the IT method. The neutral point treatment may also be imposed by the electricity distributor. This is particularly the case in France, where Electricité de France requires domestic installations to use the TT neutral point treatment.
(200) These decisions influence the choice of components in the various countries. As stated above, the choice of neutral point treatment determines the type of device used for the protection of persons. The TT method will thus require the use of earth leakage protection, while the TN method will favour the use of circuit breakers and the IT method will in most cases require the use of insulation monitoring devices. However, the choice of neutral point treatment will also have an impact on the specifications of the circuit breakers used, and in particular on the number of poles and the tripping curve: the TT approach favours the use of two- and four-pole devices and C curve devices, whereas the TN approaches make greater use of single-pole and three-pole devices and B curve devices, while in the IT approach, one finds only two- and four-pole devices.
(201) It should also be noted that technical standards for switchboards have not been fully harmonised. In addition to the CE marking required by the relevant Community directives (notably, the Low Voltage Directive), it is often necessary to obtain the national quality label issued by the national certification authority when selling a particular product in a given Member State.
(202) The results of the Commission's investigation show that, while the national quality label is not statutory, it is in most cases required by installers and panel builders. This phenomenon is moreover borne out by the fact that, despite the cost EUR [10000 -15000]* for sixty models) and the duration (three months) of each national certification operation, almost all of Schneider's circuit breakers and earth leakage protection devices bear several quality labels. This is also apparent from the parties' internal documents: internal Legrand documents(45) explain that in Belgium "despite the establishment of European standards, the CEBEC quality label continues to be required by installers". These documents also show that the main barriers to entry in Germany are VDE (certification body) approval and the national quality standards and label.
(203) In addition to these "objective" criteria, there are also national habits (in installation, choice and isolation of circuits) in each Member State, and these often play an important role in the choice of equipment. For example, Schneider states that, in some countries such as Germany, circuit breakers are often connected from the bottom, whereas in other countries (France, Italy and Spain), they are connected from the top. This difference explains why products (known as Triconnect products) have been specifically designed for German installers. Similarly, internal Legrand documents(46) indicate that in Belgium "the bulk of the market is made up of [miniature] circuit breakers with a breaking capacity of 3 kA", whereas in most other countries circuit breakers tend to have a breaking capacity of 4,5 kA or 6 kA. Lastly, in France the neutral is always wired to the left, and not to the right as in most of the other Member States. Schneider furthermore offers products specifically tailored to that demand by marking the neutral on the left of the appliance.
(204) The large number of parameters resulting in specific national characteristics explains why the most widely sold products vary from one Member State to another. These differences may also lead to the development of products specifically designed for certain Member States. For example, internal Legrand documents(47) indicate that in Austria "[...]*". Similarly, internal Schneider documents(48) indicate that in Germany "[...]*".
(205) In conclusion, as one competitor states(49), "there are local traditions and customs and national standards. They are significant, and they have a decisive impact on the characteristics of the products themselves", and it is unlikely that gradual harmonisation of standards will produce any rapid change in market conditions. As Legrand states(50): "harmonisation of low-voltage equipment can create openings for new products, but Legrand's management expects that such market openings will develop at a slow pace".
(206) In their reply to the statement of objections, the parties dispute these differences between Member States. They stress among other things that, although there are very slight differences in product models sold as between Member States (due in particular to different markings), the list of the five most widely sold products varies little from one Member State to another on the basis of identical industrial designs, and a model belonging to that list can frequently be found in most of the Member States. They thus argue that the 40 models of miniature circuit breaker produced by Schneider correspond to [0-20]* industrial designs, of which [0-20]* are sold in more than nine Member States, and that the 25 models of earth leakage switch produced by Legrand in fact constitute [0-20]* different industrial designs, of which [0-20]* are sold in at least six Member States.
(207) More generally, the parties take the view that national installation rules and quality labels do not in themselves require any particular product modification, and they also stress that all neutral point treatments are usually present in all countries (albeit in widely differing proportions).
(208) The Commission acknowledges that, from a strictly industrial standpoint, there may be relatively minor differences between several models. For example, certain miniature circuit breakers are differentiated from other models only by the identification of the neutral (on the left, in accordance with normal practice on the French market) or the display of different quality labels. It also accepts that installation rules or quality labels do not always impact significantly on the production of the items concerned. Schneider's and Legrand's production facilities are integrated at European level.
(209) Nevertheless, the Commission considers that these factors do not significantly affect the analysis. The arguments raised by the parties relate only to the production of items. However, production is only one aspect of supply: as mentioned earlier, the competitive position of manufacturers depends not only on their production, but also on the strength and perception of their brands, the availability of their products at the main national wholesalers and their investments in promoting products and in customer relations with domestic installers and panel builders. By confining themselves to a simple producer approach, the parties are therefore overlooking essential aspects of supply.
(210) In addition, and more importantly, the parties are ignoring demand-related constraints. They thus do not challenge the main thrust of this section, namely that the existence of neutral point treatments, national installation habits and rules and national quality labels creates a specific demand in each country. The parties furthermore willingly acknowledge, in their reply to the statement of objections, that specific national characteristics lead to the choice of different models. The fact that these specific characteristics prompt the use of dedicated products (such as the Triconnect ranges in Germany), the display of a national quality label or even more simply the choice of specific products (single-pole and three-pole miniature and distribution circuit breakers in Sweden and Denmark or two-pole and four-pole devices in France and Italy) is not in itself fundamentally important. What matters here is that customers in each country display a specific purchasing behaviour which severely limits the scope for shifting demand according to differences in the prices charged by manufacturers.
The key parameters of competition are defined on a national basis
(211) As stated above, the competitive position of the various manufacturers will largely be determined by (i) their ability to establish brand loyalty amongst installers and panel builders and, therefore, to meet their expectations; and (ii) their access to wholesalers, at least in those Member States in which wholesalers are sufficiently established.
Brand strength and brand perception vary from one country to another
(212) The results of the investigation show that, in order to meet the selection criteria of installers and panel builders, manufacturers must offer safe, good-quality products which are easy to fit and are always available from wholesalers. However, these factors depend in most cases on national perceptions.
(213) The way products are perceived varies from one Member State to another. As stated above, there are significant differences in standards and habits between Member States. Such differences result in the choice of different equipment. Furthermore, these choices are also reflected in different weightings in the assessment criteria. For example, it may be seen that Legrand products are generally perceived as being of high quality, but expensive. Internal documents(51) show that [...]*. Installers may also differ in the importance they attach to innovation. For example, while Legrand(52) considers that this factor underpins its competitive position in [...]*, it seems to be of little importance in [...]*, where there is [...]*. Similarly, internal documents(53) show that [...]*.
(214) The availability of products, which plays a significant role in customer decisions, also depends on specific national characteristics (i.e. access to national wholesalers and the manufacturers' national logistical chains). According to internal documents(54), [...]*, whereas the ready availability of its products seems to be one of its strengths in [...]*. Similarly, Schneider(55) considers that in [...]* "logistics are a key factor in achieving success. [...]*".
(215) As stated above, installers are generally loyal to the brand which they are in the habit of using (provided it is immediately available and meets the relevant requirement). In order to establish brand loyalty amongst their customers, manufacturers invest substantial resources in promoting products and in customer relations, directly focusing on the requirements of installers and panel builders. The parties also state that their sales staff maintain contact with customers to help them choose products and that they maintain agency networks and sale forces in each country. The parties also offer a whole range of products and services reinforcing customer relations with installers. In the case of products, this includes design and costing software for electrical installations or technical guides; and, in the case of services, training sessions (Legrand), telephone assistance services, answers to technical questions, etc. As indicated above, such investment may amount to [0-30]* % of brand turnover.
(216) The way in which a brand is perceived does not therefore depend only on the positioning of its products, but also on the extent and focus of customer-relations and promotional investment in each country. Sales forces are organised on a national basis, and promotional efforts are generally country-specific, with their volume (and indeed the proportion of sales which they represent) varying significantly from one Member State to another. For example, the volume of sales campaigns undertaken by Schneider in respect of distribution boards may be up to [0-20]* times as much in one Member State as in another, and the proportion of turnover generated by such measures may be up to [0-40]* times as much.
(217) Manufacturers' competitive positions thus remain to a large extent determined by established habits and traditions. The structure and concentration of supply, and the respective positions of the various manufacturers, may thus vary from one Member State to another. This phenomenon is clearly reflected in the existence of national brands (such as Vinckier(56) in Belgium or Baco(57) in France) and in marked national variations in manufacturers' market shares. In distribution boards, for example, Schneider is particularly strongly established in France, but remains weak in Germany and in Austria; ABB, which has strong positions in Sweden and Norway, is almost absent from the Belgian and United Kingdom markets; and Siemens, which has significant market shares in Germany, has only a marginal share of sales in France. This analysis is also amply confirmed by the parties' internal documents.
Demand structure and expectations vary from one country to another
(218) The different perceptions and positions of brands between countries are also due to substantial national variations at demand level. The parties' internal documents(58) show that there are marked differences between countries as regards training and the behaviour of installers and panel builders. Thus, Belgian installers seem relatively reluctant to use higher value-added components, whereas German installers are becoming "highly technical" and Italian installers seem to be seeking training and support services so as to adapt to the increasingly technical nature of their job.
(219) Furthermore, as stated above, final demand stems from three types of application (industrial, commercial and residential buildings), and the various manufacturers' positions may vary from one customer category to another. However, the three downstream sectors are developing differently in each country. The parties' internal documents(59) show that Austria is expected to enjoy strong growth in industrial demand but little or no growth in new buildings, whereas the situation is the reverse in the United Kingdom and Portugal, and demand in Greece is expected to be buoyed up by growth in the commercial sector.
(220) It is also apparent that the behaviour and expectations of wholesalers may vary significantly between Member States. The investigation establishes clearly that the degree of wholesaler concentration differs very widely from one country to another and that wholesalers' purchases are nationally based. This is illustrated by Table 6 below, which shows the levels of concentration by Member State as estimated by the parties as regards sales of main switchboards, distribution boards and final panelboards.
Table 6
Schneider's estimate of the market shares of the five groups of international wholesalers on the markets for electrical switchboards
TABLE
Source:
e-mail sent by the parties on 16 July 2001.
(221) The parties' internal documents also show that the way wholesalers are organised may have a significant impact on how manufacturers compete with one another. For example, it seems that, in the countries in which the wholesale trade is the most fragmented, such as Portugal and Spain, competition between wholesalers is resulting in a price war whose effects are felt at manufacturer level. As a Legrand internal document(60) states, "[...]*".
(222) In addition, the Commission's investigation has shown that wholesalers are organised on a national, or indeed sub-national, basis. Even the large international groups, such as Rexel, Sonepar and Hagemeyer, have a very largely decentralised organisation which grants a large degree of autonomy to their national and local branches. In most cases, the group's central holding company is a lightweight structure whose centralised functions comprise only marketing, accounting and consolidation of accounts at group level and management control. This decentralised structure goes hand in hand with a logistical organisation which is national and which is not designed to function on a cross-border basis. The sales outlets in a given country are thus supplied from national logistical channels. The mainly national basis on which wholesalers are organised is also reflected in the nature of their relations with manufacturers. Even international groups organise their purchasing contracts with manufacturers on a national, or indeed local, basis.
(223) The Commission's investigation established that business negotiations between manufacturers and wholesalers, notably as regards the choice of suppliers, determining the range of products to be bought and sold and the setting of price and rebate levels, take place almost entirely at national or regional level. As one large wholesaler states(61), "to the best of [our] knowledge, there is no price list at EEA level on the basis of which discounts and rebates are negotiated. On the contrary, all the terms are discussed at the level of each country". One manufacturer(62) also confirms that "for the relevant products, prices are set and rebates granted on a national basis". This is also the way the parties operate.
(224) According to Schneider, the setting of the selling prices of its products to wholesalers is worked out on two levels. First, the manufacturers issue a national price list. Subsequently, the manufacturers negotiate with each wholesaler an individual rebate policy worked out on the basis of the national price list. These rebates can sometimes exceed [30-60]* % of the catalogue price and are granted on individual product lines.
(225) It should, however, be noted that rebates on the total volume of purchases are negotiated by some international manufacturers with the parent companies of some groups of international wholesalers. However, both the wholesalers and the manufacturers have informed the Commission that a manufacturer wishing to enter a national market or establish a marginal presence on it cannot make do with negotiating agreements with the parent company of an international group of wholesalers if it wishes its products to be properly distributed in that Member State. The manufacturer will also, and especially, have to persuade the national and local branches of the group to stock its products.
(226) With that exception, the managements of the wholesaler groups allow their national or local branches a very wide margin of freedom in choosing their suppliers, the product ranges which they stock, the implementation of specific commercial strategies in collaboration with a given manufacturer, and even the negotiation of supplementary rebates with manufacturers. Conversely, the manufacturers conclude specific agreements with local branches, or indeed with individual warehouses, of the wholesalers, laying down reciprocal commitments with regard to the sale and purchase of products. Contrary to what the parties maintain, the increased concentration of wholesalers (which furthermore varies significantly from one Member State to another) does not therefore call into question the fact that markets operate on a national basis.
Prices are set at national level and vary widely between countries
(227) The Commission's investigation shows that there are considerable price differences between Member States. A look at Schneider's European price lists, for example, shows that the same moulded case circuit breaker is sold at EUR [40-80]* in [...]* and EUR [130-170]* in [...]*, and that a particular earth leakage protection product is sold at EUR [10-50]* in [...]* and EUR [40-80]* in [...]*. Similarly, in the case of Legrand, the same modular enclosure is sold at EUR [0-40]* in [...]* and EUR [10-50]* in [...]*, while the same miniature circuit breaker is sold at EUR [0-40]* in [...]* and EUR [0-40]* in [...]*. These differences are also confirmed by the parties' internal documents(63), which show that, in the case of miniature circuit breakers in France, "average prices remain very high compared with the other countries".
(228) Tables 7 and 8 below show the average prices for moulded case circuit breakers for distribution boards and earth leakage switches for final panelboards. The tables reveal substantial variations in price. A comparison of prices for the other components of distribution boards or final panelboards and of the prices given by the other manufacturers shows similar results.
Table 7
Relative prices (base 100 in France), as invoiced by Schneider, for moulded case circuit breakers for distribution boards
TABLE
Source:
e-mail sent by the parties on 24 June 2001.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
Table 8
Relative prices (base 100 in France), as invoiced by Schneider, for earth leakage switches for final panelboards
TABLE
Source:
e-mail sent by the parties on 24 June 2001.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(229) The existence and persistence of these price differentials for each of the components used in distribution boards and final panel boards illustrates the difficulty on the demand side of taking advantage of these differences between Member States. The apparent difficulty of making use of the differences in prices between Member States may be due in particular to the low price sensitivity of final demand, as reflected in brand loyalty. This difficulty also contradicts the "solutions" approach proposed by the parties, since there does not seem to be any willingness to pick out the optimum "solution" amongst those available in the Member States. This difficulty is also confirmed by wholesalers, who explain that their national logistical organisation is not suited to seeking out the best prices. Furthermore, the need to be always able to supply installers and panel builders at very short notice limits their scope for seeking out the best prices, which would be risky in terms of product sources.
(230) The parties nevertheless stress that there is a tendency towards uniform pan-European prices. In an internal document(64), Schneider states that "the arrival of the euro in 2002 [...]* is prompting [Schneider] to harmonise European prices and avoid differences between countries" and that "[large customers] no longer accept being treated differently in different countries". [...]*
(231) [...]*
(232) The document, which is cited by Schneider as evidence of the existence of Community geographic markets, thus corroborates the extent of the price differences currently in evidence. It also indicates that, despite the arrival of the euro, significant differences may continue to exist from one Member State to another until [2004-2005]* at least. Lastly, it confirms that prices are set at national level, since, in the document, it is "the countries" which "position their prices in relation to the [reference price]*" and "adapt their price positions and rebate structures".
(233) The parties consider that a breakdown of prices by component is not relevant to the customer, since the market, they argue, is determined on the basis of the technical and economic performance of the relevant "solution". The parties also point out that "complete solution" price analyses show that there is convergence, at least if one excludes the smallest national markets, which are those of the countries at the edge of the European Union and/or of the countries which have recently joined it.
(234) The parties' arguments are invalidated by their own figures on the prices for average "solutions", as illustrated in Tables 9 and 10 below. The tables demonstrate the substantial price differences between Member States, which do not seem to have narrowed over the years. It should be noted that the price differences illustrated in the tables are smaller than those given as regards components. This is no doubt due to the parties' accounting treatment of the initial data (the prices of components).
Table 9
Sales (relative prices) in current francs of an "average solution" for distribution boards
TABLE
Source:
parties' reply to the Commission questionnaire of 28 February 2001.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
Table 10
Sales (relative prices) in current francs of an "average solution" for final panelboards
TABLE
Source:
parties' reply to the Commission questionnaire of 28 February 2001.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(235) Accordingly, the Commission cannot subscribe to the parties' argument that an examination of the prices of "solutions" demonstrates the existence of a European market. In the first place, the Commission notes that the parties do not deny the existence of substantial price differences and acknowledge that, if there is any convergence, it does not apply to all Member States. Secondly, the Commission considers that any price convergence (not borne out by the facts) does not provide a basis for concluding that there is a single market: any reduction in price differences between the Member States depends much more on the pace of convergence than the mere fact that convergence exists. However, Schneider's internal documents referred to above indicate that, as far as components are concerned, price convergence will take place only slowly. Lastly, and in particular, the Commission does not share the parties' view that analysis at component level is not relevant. The prices of "solutions" depend to a large extent on the price of the components incorporated into them. It follows that, if there are differences in prices between components, there will also be differences in prices at switchboard level.
(236) In their reply to the statement of objections, the parties do not dispute the existence of price differences for particular components. On the other hand, in their view the available data show that there is rapid convergence, speeded up by the introduction of the euro and the development of Internet portals, as demonstrated by the gradual emergence of a European Reference Price in the case of Schneider. They also argue that price difference is in any event only one of the factors to be taken into account for the purpose of defining the relevant geographic market.
(237) The Commission cannot endorse the parties' arguments concerning the existence of rapid price convergence. For one thing, the above tables, which show price differences that are considerable in some cases, in no way suggest the rapid appearance of convergence at Community level. Even taking the "average solution" presented by the parties, the figures in Table 10 show for example that this solution was on average [40-60]* % more expensive in Germany than in Austria in 1994 and that it remained [40-60]* % costlier in Germany than in Austria in 2000. An analysis at the level of individual components would lead to the same findings. For another thing, despite the emergence of a European Reference Price in the case of Schneider, it is clear that differences in list prices of over [0-20]* % may persist in the medium term for the same product sold in two neighbouring countries. These differences may be further exacerbated by discount and rebate policies that are specific to each country and are not concerned by harmonisation efforts.
(238) The Commission readily accepts the parties' argument that price difference is in any event only one of the factors to be taken into account for the purpose of defining the relevant geographic market. However, in the case in point, it regards this criterion as sufficient on its own. How is it possible to account for the fact that identical products, manufactured in the same plant and distributed through the same logistical network and for which the transport cost is minimal, can frequently be sold for three times as much in one Member State than in another? The existence of such differences for similar products confirms, almost on its own, that there is no real scope for taking advantage of price differences between Member States. The persistence of these differences demonstrates that competitive conditions are not uniform in the common market.
(239) In any event, the Commission is convinced that the analysis of supply and demand, as carried out in the other parts of this section, confirms if need be the national nature of the markets as found by the price analysis.
Existence of significant entry barriers at national level
(240) The foregoing considerations indicate that there are significant barriers to entry between one country and another. To secure a toehold in a particular country, it is not enough to be able to offer "solutions" in another country; an exporter has to overcome the conservatism of installers in order to create demand, gain access to wholesalers and (in the case of final panelboard components) obtain national quality labels. Since access to wholesalers depends on demand from installers, which in turn depends on the availability of products and therefore access to wholesalers, market entry can require very large sunk investments, particularly where well established brands already exist on the market.
Mains connection circuit breakers
(241) Mains connection circuit breakers have to comply with national specifications in Portugal and France. The relevant geographic market for these products is therefore a national one.
Conclusion
(242) In the light of the foregoing, the Commission comes to the conclusion that there are national markets for distribution board and final panelboard components and for mains connection circuit breakers. As one manufacturer argues in summing up the situation, all market segments should be analysed on a national basis. First, national standards and habits differ significantly from one country to another. Second, given their vertical structure (end user/installer/wholesaler/manufacturer), national markets are extremely stable. Consequently, even if a manufacturer were able to convince a wholesaler to add its products to the brands it already lists (and therefore, in short, to increase the number of its suppliers), that does not however enable the manufacturer to convince local installers to choose its products.
(243) In their reply to the statement of objections, the parties dispute this definition, claiming in particular that the Commission has not taken sufficient account of the harmonisation of standards, the low level of transport costs and the organisation of production on a Community-wide basis.
(244) The Commission readily acknowledges these three factors. It nevertheless maintains that they do not in any way call into question its definition of the relevant geographic markets. As stated earlier, standards constitute only one of the factors determining demand and furthermore do not appear to play a key role given the overwhelming importance still attached to national habits and quality labels. And, in any event, the harmonisation of standards has not led to convergence in the prices of components, something which should have happened if standards had constituted a significant barrier to trade. Neither do the organisation of production at European level and the low level of transport costs call into question the national nature of markets since this is apparent instead from the specific characteristics of demand in different countries and, on the supply side, from the perception of brands and the way in which prices are set.
(245) The question of the definition of the geographic markets for main switchboard components can on the other hand be left open because, Legrand not being present in that segment, the transaction would not have the effect of significantly restricting competition in the EEA or in a substantial part of it.
B.2 BUSBAR TRUNKING AND CABLE TRAYS
B.2.1 Definition of product markets
(246) The parties define a product market comprising both cable trays and busbar trunking.
(247) A cable tray is a prefabricated assembly consisting of a continuous conduit of perforated flanged sheet metal or ladders. It is designed to support insulated aluminium or copper conductors carrying the electric power inside a building. The parties state that cable trays are usually installed in the basements, metal ducts and false ceilings of buildings. The materials generally used for producing cable trays and ladders are steel, aluminium, PVC, polyester and wire mesh. These products are made in a large number of sizes ranging from 50 to 600 mm in width, from 50 to 100 mm in depth and from 1 to 3 m in length.
(248) The strength of the current that can be carried by cables mounted on cable trays is directly dependent on the technical characteristics and number of the cables. The parties state(65) that that they have no control over the electric power conveyed on their cable trays. Their guarantee covers the mechanical strength and not the amperage flowing through the cables, which may be of any type, thickness and weight. Cable trays may be installed horizontally or vertically in any building, between the main switchboard, distribution boards and final panelboards. The higher the power distributed and consequently the greater the weight of the cables (the thicker the conductors), the more the solutions used need to be robust. Metal cable ladders thus tend to be used between the main switchboard and distribution boards, while perforated tray systems are more often used between the distribution boards and the final panelboards. More rarely, welded wire mesh or perforated metal cable trays may be used downstream of the final panelboard to supply a machine.
(249) Busbar trunking consists of a set of copper or aluminium conductors supported by insulating spacers and enclosed in a metal housing, usually of galvanised steel. Busbar trunking is an assembly of several components. A power feed unit is mounted between the switchboard and the busbar trunking proper. The busbar trunking itself is installed by assembling several modules usually between 3 and 5 metres in length. These components comprise several superimposed layers on which the conductors are mounted. Power tap-off outlets are placed at regular intervals; these are designed to receive tap-off units for feeding electric power to one or more loads. Flexible elbow units, generally made of plastic, allow access for connectors and enable trunking runs to be routed around corners in walls. Coupling sections enable two trunking components to be joined together. An end cover is fixed to the end of the trunking run. The dimensions of busbar trunking depend on the strength of the current it conveys. According to the parties, busbar trunking can carry currents of between 20 and 5000 amps(66).
(250) Busbar trunking systems can serve four different purposes. In a heavy-duty "link" system, they connect the medium voltage/low voltage transformer to the main switchboard. This is a short configuration, less than 10 metres in length, which conveys current of high strength (between 1600 and 4000 amps). In a lighter configuration, called a "power distribution" or transport system, the busbar trunking conveys electric power from the main switchboard to the distribution boards. This application is longer than the preceding one (some 30 metres) and the current conveyed is in the region of 400 - 1600 amps. The parties nevertheless state that the most commonly used busbar trunking configurations correspond to two other specific functions: supplying power for lighting systems and low-power electricity distribution(67). In a lighting distribution configuration, the busbar trunking will be up to 30 metres long and usually conveys current of between 16 and 40 amps. It will also be fitted with specific connectors for supplying the light fittings. In a low-power electricity distribution configuration, the busbar trunking will also be up to 30 metres long, but it will carry higher currents (between 40 and 100 amps). It will serve to distribute power to wiring accessories such as sockets and switches. To that end, it will be fitted with connectors and fuse boxes and/or circuit breakers in order to protect those accessories.
(251) Cable trays and busbar trunking thus both serve physically to convey electric power between the main switchboard and distribution boards. The parties state that busbar trunking is also used downstream of the distribution boards, in particular for supplying power to the final panelboards(68). Busbar trunking systems already incorporate, when they are manufactured, the conductors which convey the electric current. In the case of cable trays, the conductors have to be purchased separately(69). The parties confirm that they do not offer their customers combined supplies of cable trays and cables(70).
(252) According to the parties, cable trays and busbar trunking form one and the same product market. They explain that the two types of product serve an identical purpose, namely to act as a medium for the transmission of strong electric currents, often of several hundred amps, between the main switchboard and the distribution boards. They conclude that busbar trunking systems and cable trays are substitutable on the demand side.
(253) The investigation has shown, however, that for these two categories of product, substitutability is limited on the demand side and non-existent on the supply side.
Demand-side substitutability
(254) The parties state(71) that the decision to use one category of product rather than the other depends on the configuration of each building and the characteristics of the electricity distribution network installed therein. Busbar trunking is thus said to offer greater flexibility than cable trays with regard to the location of electric-powered equipment (computers, machinery, etc.). Special emphasis is placed on the latter point in a Schneider internal document(72), which states that busbar trunking is "more competitive than cable" in situations where electric power has to be supplied to a large number of machines located in the same room; busbar trunking offers two major advantages: it is "easily modifiable: a machine can be moved easily or a new machine added by simply connecting to a vacant tap-off outlet" and it is "very adaptable: trunking can be added or removed to meet changes in layout". A similar claim is made in another Schneider internal document(73), which states that busbar trunking costs [...]* times more than cable trays but that a tap-off can be installed on it at [...]* the cost. According to the same document, it becomes more economical to use busbar trunking than cable trays once more than [...]* power tap-offs need to be installed.
(255) A Schneider internal document(74) further states that busbar trunking is also "more competitive than cable" for "link" applications having to carry current of over 1600 amps and for "transport" applications carrying current of over 1000 amps.
(256) The technical and operational features of busbar trunking and cable trays are also different. The parties state(75) that busbar trunking is much more effective in withstanding the strong currents generated by a short circuit. A Schneider internal document(76) also states that, in the event of a short circuit, busbar trunking offers the advantage of causing minimal disruption of the power supply: this is explained by the fact that "protection devices are located within each load's tap-off unit, so only the one load is removed from supply, minimising 'down-time' during maintenance and repair". The same document also states(77) that busbar trunking is 40 % lighter and twice as fast to install as cable trays.
(257) On the other hand, the range of materials that can be used in the manufacture of cable trays enables them to be used in special environments. For example, aluminium cable trays are particularly resistant to damp atmospheres, while glass fibre-reinforced plastic cable trays can effectively withstand corrosive atmospheres. The former are consequently often used in the agri-foodstuffs industry and the latter in the chemical industry(78).
(258) Busbar trunking and cable trays therefore cater for different, specific needs. The former are a cheaper solution than the latter where the current to be carried between the main switchboard and the distribution boards exceeds 1000 amps or where the current to be carried between the medium voltage/low voltage transformer and the main switchboard exceeds 1600 amps. In a "distribution" configuration, busbar trunking is a cheaper solution where more than five tap-offs need to be installed. Busbar trunking also offers technical features which make it particularly well suited and irreplaceable in buildings where continuity of the power supply is essential and a large number of tap-offs need to be installed, such as large commercial buildings, hospitals and airports. Buildings of that type are presented in a Schneider internal document as the natural market for busbar trunking(79). On the other hand, cable trays will be chosen in preference to busbar trunking in certain economic sectors or for use in certain specific types of atmosphere.
(259) There is therefore only partial demand-side substitutability between busbar trunking and cable trays, limited chiefly to low-power distribution, transport and link applications. Even for each of these applications, the characteristics of each of the two product types have the effect of limiting their demand-side substitutability.
(260) This finding is borne out by a Schneider internal document, which states that "cables" are a technology that is only "in indirect competition" with busbar trunking(80). The parties stress that cable tray technology is in indirect competition "because it serves the same basic purpose albeit without offering the same flexibility of use"(81). A third party that answered the questionnaire, Pogliano, states that cable trays and busbar trunking genuinely compete with each other only in geographic markets where distribution of the latter is still limited and consumers are consequently not yet familiar with its comparative advantages(82).
Supply-side substitutability
(261) Many third parties have pointed out that busbar trunking systems are a more technically sophisticated product than cable trays. As already mentioned, the electrical conductors are incorporated in busbar trunking during manufacture, whereas cable trays are merely designed to receive the conductors at a later stage.
(262) The technical differences between busbar trunking and cable trays are reflected in the standards with which the products have to comply. The IEC 60439-2 and Cenelec EN 60439-2 standards for busbar trunking systems lay down electrical requirements relating specifically to the dimensions of the conductors they incorporate, their insulation and the characteristics of the connections. Cenelec standards EN 10142 and EN 10088 for cable trays, on the other hand, lay down mechanical requirements to do with the cable weight which cable trays and their mountings must be able to withstand. Consequently, whereas the standards for busbar trunking lay down electrical requirements aimed at preventing short circuits and fires(83), the standards for cable trays establish requirements relating to the products' physical strength. Unlike cable trays, busbar trunking is therefore electrical equipment in the sense that electric current is intended to pass through it.
(263) These technical differences are likewise reflected in different manufacturing processes. Cable tray production is related to metalworking or sheet metal manufacture, whereas the production of busbar trunking is an activity of the electrical equipment industry. The parties acknowledge in Form CO (page 52) that cable trays are usually made by sheet metal manufacturers and busbar trunking by electrical equipment producers. The upshot of this is that, to the Commission's knowledge, there are only two companies that produce both types of product: Schneider and Hager. In both cases this is a recent development resulting from the acquisition of another company (Lexel by Schneider and Tehalit by Hager). Prior to those acquisitions, Schneider and Hager produced only busbar trunking.
(264) The fact nevertheless remains that each of the above two groups have subsidiaries specialised in the production of one or other of the two types of product. Within the Schneider group, Télémécanique and Normabarre thus manufacture busbar trunking while the subsidiaries Wibe, Stago and Mita produce cable trays. The main producers of busbar trunking in Europe (Moeller, MEM-Delta, Pogliano, Zucchini, etc.) do not manufacture cable trays. Lastly, the parties stress that cable tray producers are small companies specialised in the manufacture of that type of product(84).
(265) There is therefore no supply-side substitutability between busbar trunking and cable trays.
Conclusion
(266) For the above reasons, the Commission takes the view that cable trays and busbar trunking constitute two separate product markets. In their reply to the statement of objections(85), the parties did not contest this conclusion.
B.2.2 Definition of the geographic markets
(267) The parties take the view that the market for the sale of cable trays and busbar trunking is Europe-wide. They base their position on the fact that the products sold in the different Member States are identical; they also state that more than [...]* % of the output of Schneider and Legrand is sold in Member States other than the country of manufacture.
(268) The Commission's investigation has established, however, that competition in the sale of low-voltage electrical distribution products operates essentially on a national basis. The main points of that analysis, developed above(86) for distribution boards, apply likewise to cable trays and busbar trunking. More specifically, the following considerations support that analysis in the case of these product markets.
The selling price of cable trays and busbar trunking varies greatly between Member States
(269) There are significant price differentials between EEA countries for one and the same model, in the case of both busbar trunking and cable trays.
Busbar trunking
(270) The parties nevertheless supplied a price comparison for what they consider to be the two most commonly used standard configurations. These are: (i) the KLE 16 A two-pole lighting busbar produced by Télémécanique and (ii) the KNA 63 A low power distribution busbar produced by Télémécanique(87).
(271) Table 11 below gives the selling price for the [...]* lighting busbar produced by Télémécanique, a Schneider subsidiary, in different EEA countries(88):
TABLE
TABLE
Source:
the parties.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(272) Table 12 below gives the selling price for the [...]* low power distribution busbar produced by Télémécanique, a Schneider subsidiary, in different EEA countries(89):
TABLE
TABLE
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(273) It is clear from the above two tables that the price of one and the same busbar trunking model varies considerably from one EEA country to another: the price of the same item can differ by more than [50-100]* % between two neighbouring countries. The [...]* busbar is thus sold for FRF [...]* in Norway and FRF [...]* in Sweden; the price of the [...]* busbar is FRF [...]* in Spain and FRF [...]* in France.
Cable trays
(274) Table 13 below gives the evolution in the relative selling price of steel cable ladders manufactured by Lexel, a Schneider subsidiary, between 1996 and 2000 in the different EEA countries in which Lexel markets those products:
Table 13
TABLE
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(275) It can be seen from Table 13 that the price of this category of cable tray varies greatly between Member States, even neighbouring ones, and that price differentials have not tended to narrow over the last five years: the price differential between Sweden and Denmark, which was [0-50]* % in 1996, stood at [0-50]* % in 2000. Likewise, the price differential between Germany and the Netherlands was [0-50]* % in 1996 and rose to [50-100]* % in 2000.
(276) In their reply to the statement of objections, the parties argued that steel cable ladders produced by Lexel were not an appropriate choice for establishing the existence of price differences between Member States for cable trays generally, and that steel cable trays were more representative of the relevant product market as a whole since that product category accounted for around twice the sales of steel cable ladders. They maintained that, in any event, price differentials for steel cable ladders between certain neighbouring Member States (such as the Netherlands and Germany) were almost non-existent.
(277) It should first be pointed out that the parties' claim that steel cable trays account for twice the sales of steel cable ladders is based on a mere extrapolation to the European market of the situation prevailing in the United Kingdom. The parties have not provided any information demonstrating that the breakdown of sales between the different categories of cable tray in the United Kingdom could be generalised to the rest of the EEA.
(278) In addition, it can be seen from documents supplied by the parties(90) that there are also significant price differences between Member States, even neighbouring ones, in the case of steel cable trays. The table below shows the trend in the relative price of steel cable trays produced by Lexel, a Schneider subsidiary between 1998 and 1999, in the three Member States in which they are sold by that company:
Prices for steel cable trays
TABLE
Source:
the parties.
(279) It is therefore clear from the above table of prices for steel cable trays that while the price differential between the Netherlands and Germany is small, and even tended to narrow between 1998 and 2000, the differential between those two countries and Belgium was greater than [0-50]* % in 2000 and even tended to widen over the same period.
(280) In their reply to the statement of objections, the parties claimed that the comparison of cable tray prices between Member States made by the Commission was distorted because it failed to take account of three exogenous factors.
(281) First, according to the parties, the Commission failed to take into account the fact that, for historical reasons, customers in Sweden and Finland had a distinct preference for cable ladders rather than cable trays, with the result that competition was stronger in the case of the former; this partly explained why prices for those products were lower than in the rest of Europe.
(282) It should first be pointed out that selling price differentials for cable trays produced by Schneider are significant not only between Sweden and Finland, on the one hand, and the other Member States, on the other. It can be seen, for example, from Table 13 that the price differential between Germany and Belgium stood at [50-100]* % in 2000. Even if Germany is also regarded as a special case, the price differential between Denmark and Belgium was [0-50]* %. In addition, the fact that the share of sales represented by the different categories of cable tray differs substantially between the various Member States, because of the marked preference of national consumers for certain categories, as claimed by the parties(91), is a further important argument in favour of defining the relevant product market on a national basis.
(283) Second, the parties state in their reply to the statement of objections(92) that the price differences between Member States in the case of cable ladders marketed by Lexel were the result of fluctuations in national currencies: they quote the example of the Swedish krona, which lost nearly 30 % of its value as against the pound sterling, thereby reducing, so they claim, the price differential observed between Sweden and the United Kingdom for that product category. However, it can be seen from Table 13 above that the price differential for cable trays marketed by Lexel in those two Member States, which was [0-50]* % in 1996, stood at [0-50]* % in 2000, which contradicts the claim that prices narrowed between Sweden and the United Kingdom. It should also be noted that the differences in selling prices for cable ladders marketed by Lexel concern many EEA countries whose currencies have remained stable in relation to each other in recent years. Table 13 above shows, for example, that the price differential between Germany and the Netherlands stood at [50-100]* % in 2000.
(284) Third and last, the parties argue(93) that the selling prices they communicated to the Commission take account of the discounts and volume rebates applied to each sale; the amount of these discounts and rebates differed from one Member State to another, a fact which, in their view, accounted for the differences observed in average selling prices. It is sufficient to note here that the parties have not supplied any document establishing that the average level of sales volumes per deal differs from one Member State to another. If that were the case, it would in any event constitute a further important piece of evidence in favour of defining the cable tray market on a national basis.
The positions of the cable tray and busbar trunking manufacturers vary greatly between Member States
(285) The market shares of the main players on the busbar trunking and cable tray markets differ substantially from one Member State to another.
Busbar trunking
(286) Table 14 below, which was supplied by the parties(94), gives the market shares of the main players on the busbar trunking market in the main EEA countries:
Table 14
TABLE
(287) It is clear from Table 14 above that the positions of the main busbar trunking manufacturers vary significantly from one Member State to another. Confining the analysis to variations between neighbouring Member States, Schneider thus has [70-80]* % of the French market, but a market share of [50-60]* % in Belgium, [40-50]* % in Spain and only [30-40]* % in Germany. Likewise, Schneider's market share is [80-90]* % in Ireland but only [10-20]* % in the United Kingdom, and [70-80]* % in Portugal but only [40-50]* % in Spain. The other main player on the European market, Moeller, has a market share of [50-60]* % in Germany, but [30-40]* % in Austria, [10-20]* % in Belgium and only [0-10]* % in France.
Cable trays
(288) Table 15 below, which was supplied by the parties, gives the market shares of the main competitors on the cable tray market in the different EEA countries:
Table 15
TABLE
(289) It can be seen from the above table that Schneider is present in only six EEA countries. It has a market share of between [20 and 80]* % in five of them but is absent from all the other national markets. Legrand has the largest market share in the EEA although it is present in only three Member States (France, Italy and the United Kingdom) and has a significant market share in only two of those ([20-30]* % in Italy and [30-40]* % in the United Kingdom). With the exception of Hager, which is active in 11 countries, all the other competitors are present in only one or two Member States, usually neighbouring ones (Unitrust and RM Cable Tray in Ireland and the United Kingdom or Meka in Sweden and Finland). Van Geel appears to be the sole exception to this rule as it is active in Belgium, the Netherlands, Germany and also Scandinavia.
(290) Most of the players on the cable tray market are therefore present in one EEA country only. Those who are active in more than one EEA country have (i) a particularly large market share in one country and (ii) much smaller, fluctuating market shares in the others.
(291) In their reply to the statement of objections(95), the parties pointed out that there were several players on the relevant product market which were present in more than one Member State: they mentioned Schneider, present in seven Member States, Van Geel, present in six Member States and Hager, present in 11 Member States. They also argued that Hager had relatively uniform market shares in the different Member States in which it was active.
(292) It is sufficient to note here that the fact that only three players on the cable tray market are present in more than one Member State is not enough to prove the existence of competitors of a genuinely European size vying with each other throughout the EEA. This finding is reinforced by the fact that none of the three leading players in the EEA, namely Schneider, Legrand and Hager, have uniform market shares at national level.
The distribution of cable trays and busbar trunking is organised on a national basis
(293) The parties explain that on average between 75 % and 95 % of the turnover of cable tray and busbar trunking manufacturers is generated by sales to wholesalers(96). For example, Schneider states that its sales of cable trays to wholesalers account for all its sales in Sweden, the United Kingdom and the Netherlands. Schneider has not provided other information for the other Member States(97).
(294) As explained above, therefore, relations between electrical distribution equipment manufacturers and wholesalers are organised on a national or even regional basis, even in the case of manufacturers and wholesalers operating on a European scale. This applies equally to cable trays and busbar trunking. Distributors of those products therefore compete chiefly on a national basis.
(295) In their reply to the statement of objections(98), the parties argued that a large share of the turnover of cable tray manufacturers was generated by direct sales to end customers; this was particularly true in the case of large projects, for which the wholesalers themselves required manufacturers to deliver the cable trays in their catalogues direct to customers. Relations between wholesalers and manufacturers did not therefore play a decisive role in assessing the geographic extent of the relevant product market.
(296) The point should first be made here that the parties have not supplied any information making it possible to gauge the importance of direct sales by manufacturers to end consumers on the cable tray market. The only data provided by the parties, concerning their own sales, show on the contrary that sales to wholesalers account for the bulk of their turnover. There is no available information suggesting that the situation might be different for the other market players.
(297) In addition, the parties' argument that wholesalers request manufacturers to deliver direct to end customers the cable trays appearing in the catalogues of products they distribute does not in fact mean that manufacturers sell the products in question direct to those customers. On the contrary, the wholesalers' involvement with regard to the products they have decided to include in their sales catalogues suggests instead that they purchase the products in question from the manufacturers and then resell them to the end consumer without those products physically passing through their stocks.
Barriers to entry
(298) The parties argued in their reply to the statement of objections(99) that barriers to entering the cable tray market were not significant. According to the parties, the products concerned are homogeneous in the sense that they require little or no adaptation in order to satisfy local demand; transport costs are relatively low and do not constitute a barrier to free movement within the EEA; and there are considerable trade flows between Member States. For example, [20-40]* % of cable trays produced by Schneider and Legrand are sold in a Member State other than the one in which they are manufactured.
(299) The existence of substantial price differentials between Member States and the unevenness of the players' market shares as noted above are two decisive factors which, from a factual standpoint, refute or at least severely limit the validity of the parties' claim that barriers to entering the cable tray market are not significant. The Commission's investigation has shown that access to the distribution channels is the main barrier to entry in the cable tray market given that the bulk of sales are made via wholesalers. Wholesalers' tendency to reduce the number of brands they distribute for each category of electrical equipment tends to increase barriers to entry.
Conclusion
(300) The relevant geographic markets for the sale of cable trays and busbar trunking are national ones.
B.3 ELECTRICAL EQUIPMENT DOWNSTREAM OF THE FINAL PANELBOARD
B.3.1 Definition of the product markets
Introduction
(301) Electrical equipment products downstream of the final panelboard (also called "installation products and accessories" by the parties) have in common their position at the final, or terminal, stage of the electricity distribution network, downstream of the final panelboard.
(302) The parties propose defining the following markets as separate product markets: (i) sockets and switches, (ii) control systems, (iii) security and safety systems for protecting life, (iv) security and safety systems for protecting property, (v) data network connectors, (vi) fixing and connecting equipment, and (vii) trunking equipment. Each of these categories of product, they say, fulfils different functions. The Commission's investigation confirmed that it is not possible to group these different market categories into one and the same product market. The markets in control systems, security and safety systems for protecting property, data network connectors and trunking equipment are not affected by the proposed transaction.
(303) Each of the product market definitions proposed by the parties comprises products that are not mutually substitutable.
(304) However, the accessory markets concerned do share a number of characteristics which distinguish them from the markets in switchboards and in cable trays and busbar trunking. First of all, they primarily involve the residential and commercial sectors, to the exclusion of the industrial sector (except for certain categories of product such as weatherproof wiring accessories). In addition, installation accessories form the visible part of the installation. These two aspects mean that, unlike in the case of switchboards and cable trays and busbar trunking, the aesthetic dimension plays an important role in the choice of product and the end user is much more concerned to be involved in that choice. Furthermore, equipment downstream of the final panelboard is almost exclusively distributed via wholesalers, while panel builders and direct sales by manufacturers to end customers are not involved in the distribution of these products. This means that installers have a greater role in the choice of such products than they do in the case of electrical switchboards or cable trays and busbar trunking.
Sockets and switches
Introduction
(305) The low-voltage sockets and switches category, as presented by the parties, comprises the following products:
- basic plug and socket outlets for connecting electric loads;
- "low-current" sockets: traditional telephone sockets, television sockets and "VDI" (voice, data, image) sockets for connecting the telephone, television and data and communication systems respectively;
- switches, acting as control devices for power sources (lighting, motors), including remote control switches and time-lag switches;
- dimmers, for adjusting lighting levels.
(306) Furthermore, within the socket and switches segment, the Commission's in-depth investigation identified the existence of a product category called "weatherproof wiring accessories", designed to withstand hostile environments (moisture, dust, impact, etc.).
(307) According to the parties, all these products, with the sole exception of VDI sockets, form one single product market, since they are indissociable for reasons of design and appearance. This, say the parties, is confirmed by the fact that they are supplied in aesthetically homogeneous ranges. A consumer's choice of one of these products (such as a socket) governs his choice of another (such as a switch) since it would not be aesthetically acceptable to have a socket and switch of different designs in the same room.
(308) For the reasons set out below, the Commission's investigation confirmed that there is a market in ordinary sockets and switches (including time-lag switches, remote control switches and dimmers) and that specific product markets exist for data sockets and weatherproof wiring accessories. The question of whether traditional telephone sockets and television sockets constitute separate product markets or whether they form part of the ordinary sockets and switches market can be left open, since the analysis of the competitive situation is the same in either case.
(309) The products in this category are very varied from the point of view of their function, technological content and unit value. First, the sockets and switches category as presented by the parties includes both products with low technological content, such as ordinary switches and sockets, and products with electronic components, such as VDI sockets and dimmers controlling lighting intensity. These products share the characteristic of being installed in the living areas of dwellings and of being "visible". For this reason, their design and appearance constitute an important factor in consumers' choice.
Ordinary sockets and switches
(310) As regards ordinary socket outlets and switches, including remote control switches, time-lag switches and dimmers, the parties' argument that they form a single product market can be endorsed.
(311) The Commission's survey of competitors, wholesalers and installers confirmed that, as stated by the parties, the decisive factor for users, and therefore for wholesalers, in choosing products is the aesthetic dimension common to these products of varying functions.
(312) All the products concerned have in common the fact that they are visible to the user. Beyond their purely functional aspect, their appearance and compatibility with the decor are decisive factors in users' and specifiers' (architect, decorator, etc.) choice of a given product. For this reason, manufacturers give them a homogeneous finish or cover based on shared plates and embellishments. This aspect of demand from end users also affects wholesalers, who have to offer customers complete lines of sockets and switches of the same design. It is unlikely that, if a hypothetical monopolist of homogeneous product ranges were to raise the price of a specific product, demand for that product would switch towards a single-product manufacturer, besides which, there are no manufacturers that produce a single product or that do not supply homogeneous ranges. To be present on the market, manufacturers must be in a position to offer one or more full ranges with a common design.
(313) The Commission therefore concludes, for the purpose of these proceedings, that basic plug and socket outlets and switches, together with remote control switches, time-lag switches and dimmers, form a single relevant product market.
Traditional telephone sockets
(314) Traditional telephone sockets meet a specific need, namely the connection of telephones and other telecommunications equipment (fax or modem) to the network. At present, these sockets are made only for the residential market, since telecommunications equipment in commercial buildings is usually connected via VDI sockets, which can also be used to connect up computers and other telecoms equipment within a local area network. Traditional telephone sockets meet specifications laid down by telecoms operators. This distinguishes them from ordinary socket outlets and television sockets. Unlike VDI sockets, they contain no electronic components.
(315) However, the parties state that traditional telephone sockets require the same technologies as plug and socket outlets (thermoplastic moulding, cutting, machining, etc.). They assert that these sockets form part of the switch and socket ranges marketed by manufacturers of "segment 5.A.1" accessories and are often installed at the same time by the same installer that is responsible for installing high-current equipment. This assertion by the parties can be endorsed only for socket and switch manufacturers such as Schneider and Legrand, which, in their catalogues, offer ranges that include telephone sockets. However, in addition to these switch and socket manufacturers, there are also specialised traditional telephone socket manufacturers such as the 3M group (Pouyet, Quante), Krone or Forgos, which do not offer a full range of sockets and switches.
(316) However, it is not necessary to resolve the matter of whether traditional telephone sockets form part of the ordinary switch and socket market or whether they should be considered as a separate product market. The analysis of the competitive situation is the same in either case.
Television sockets
(317) Like traditional telephone sockets, television sockets meet a specific need, namely the connection of television sets. They are intended exclusively for the residential market. They must comply with specifications laid down by television broadcasters, which distinguishes them from plug and socket outlets, telephone sockets and VDI sockets.
(318) The parties argue that television sockets require the same technologies as plug and socket outlets (thermoplastic moulding, cutting, machining, etc.). To the extent that they are marketed by general socket/switch manufacturers, they form part of their switch and socket ranges. They are often installed at the same time by the same installer that is responsible for installing high-current equipment. This assertion by the parties is contradicted by the fact that television socket manufacturers are mainly specialised firms that do not make high-current equipment, such as Philips, Bosch and Hirschmann.
(319) However, it is not necessary to resolve the matter of whether television sockets form part of the ordinary switch and socket market or whether they should be considered as a separate product market. The analysis of the competitive situation is the same in either case.
VDI sockets
(320) The parties consider that VDI sockets belong to the market in connectors for data networks. However, they sell VDI sockets within their socket and switch ranges and the market data for sockets and switches supplied by them to the Commission include VDI sockets sold as part of these ranges.
(321) VDI sockets are used for the connection of data and communications systems. Besides their primary purpose of data transmission (hence the name "data sockets"), they also handle all telephony requirements in a commercial network, by comparison with simple, domestic uses, as well as certain video applications linked to data-type sources, thanks to digital technology. They are not part of the electricity distribution system, but of the communication network between neighbouring workstations within a building (LAN: local area network), primarily in commercial applications. It follows that they meet a specific requirement that differs from that met by other types of socket (such as plug and socket outlets, traditional telephone sockets, television sockets, and so on) and are not substitutable with them on the demand side.
(322) Furthermore, VDI sockets use different technology from plug and socket outlets, television sockets and traditional telephone sockets. Their main components are the various types (configurations) of connectors that meet specifiers' requirements in accordance with the standards developed by the manufacturers of IT equipment (RJ 11, RJ 12, RJ 45, Twinax, Thinnet, BNC, ACO, SUBD 9, SUBD 15, SUBD 25 and so on). VDI sockets are installed by specialists or electricians trained specifically in the requirements of such networks, which need maintenance as well as frequent modifications.
(323) A number of significant participants in the VDI socket market are specialised manufacturers such as Infra+, Lucent, Alcatel, Tyco and others, which are not active on the ordinary switch and socket market and thus do not supply an aesthetically homogeneous range. The production of VDI sockets is specific and cannot be done on converted equipment. The Commission's survey of third parties confirmed that a manufacturer of ordinary plug and socket outlets or of another category of low-current socket (traditional telephone or television) cannot start producing data sockets without considerable additional cost and time. Data sockets are therefore not substitutable on either the demand or the supply side with ordinary socket outlets, traditional telephone sockets or television sockets.
(324) The Commission therefore concludes that data sockets do not form part of the market in ordinary sockets and switches.
Weatherproof wiring accessories
(325) The category of weatherproof wiring accessories includes sockets and switches that, by dint of their construction or installation, are capable of resisting hostile environments (mainly moisture, but also dust and impact), for example in bathrooms, garages and cellars, outside a building, in factories, on building sites, and so on.
(326) The parties consider that weatherproof wiring accessories form part of the sockets and switches market, arguing that they perform exactly the same function, namely providing access to the electricity source, and that, except for the degree of weatherproofing, their characteristics are strictly identical and that the technology and manufacturing process are also the same. They also state that these accessories are installed at the same time as ordinary sockets and switches by the same electricians and in the same building.
(327) However, weatherproof wiring accessories cater for a specific demand and ordinary switches and sockets cannot therefore be substituted for them on the demand side.
(328) Neither is there any supply-side substitutability between ordinary sockets and switches and weatherproof wiring accessories. The parties indicated that the development of the weatherproof casing alone accounted for around [0-50]* % of the cost and [0-50]* % of the time required to develop a complete line of sockets and switches from nothing. Legrand says it spent EUR [10-60]* million and almost [1-4]* years (including preparatory studies) on the Plexo product line, based on existing mechanisms, compared with EUR [20-70]* million and [3-5]* years for a complete product line(100). According to Infra+, a firm specialised in manufacturing components for computer networks, making a single water-resistant socket requires more or less twice the investment in tools and a development time of one year(101). The Commission's survey of third parties also confirmed that a manufacturer of ordinary sockets and switches cannot begin production of weatherproof wiring accessories without considerable additional cost and time.
(329) In their reply to the statement of objections, the parties challenged the Commission's analysis. They argued that weatherproof wiring accessories complemented other sockets and switches and that each range of sockets and switches offered a weatherproof version with the same design, dimensions and characteristics.
(330) However, products that are not substitutable but complementary do not as a general rule belong to the same product market(102). Ordinary and weatherproof sockets and switches cater for different needs, and a particular installation may either comprise only ordinary sockets and switches (for example in an apartment), or use both ordinary and weatherproof wiring accessories (for example in a house, where weatherproof sockets are installed in the cellar or outside), or consist exclusively of weatherproof wiring accessories (for example in industrial premises).
(331) The parties also assert that all the well-known manufacturers of sockets and switches also market weatherproof wiring accessories. Although this argument is valid for the competitors mentioned by the parties, it does not hold true for Sarel, a Schneider subsidiary which manufactures, in addition to other products (earth leakage switches, fixing and connecting equipment), a range of weatherproof wiring accessories and even claims in its catalogue to be "the weatherproof specialist"(103). The demand can therefore be met by a dedicated supply.
(332) In Spain, furthermore, the market positions of the main competitors differ widely on the ordinary sockets and switches market and the weatherproof wiring accessories market. In ordinary sockets and switches Legrand is only number 2, with a [10-20]* % market share (after Simon, with [40-50]* %), but it is market leader in weatherproof wiring accessories, with a market share of at least [40-50]* %.
(333) The parties also challenge the Commission's finding that there is no supply-side substitutability between weatherproof and ordinary wiring accessories, claiming that the manufacture and marketing of a simple casing placed over the socket or switch does not require any great technological input and that the one-year lead time needed, according to Infra+, by a manufacturer of ordinary sockets and switches in order to produce weatherproof wiring accessories is much shorter than for a normal line (two to four years).
(334) Nevertheless, the claim that it takes still longer to develop and market a complete new line of sockets and switches from nothing than to develop a weatherproof line from an ordinary line cannot disprove the finding that there is no supply-side substitutability. The manufacturer of a neighbouring product cannot exert a disciplinary effect on the competitive behaviour of the companies involved unless it can switch production to the relevant products and market them in the short term without incurring significant additional costs or risks in response to small but permanent changes in relative prices(104).
(335) The lack of supply-side substitutability between ordinary and weatherproof wiring accessories is also illustrated by the fact that Eunea Merlin Gerin, Schneider's Spanish subsidiary, markets both ordinary and weatherproof ranges but itself produces only ordinary sockets and switches, while the weatherproof wiring accessories it sells are produced by Sarel in France.
(336) Lastly, the parties refer to several third parties surveyed by the Commission in the course of the investigation who, they claim, subscribed to the view that weatherproof wiring accessories form part of the sockets and switches market. However, the third parties cited in the parties' reply to the statement of objections have not disputed the facts discovered by the Commission in the course of its investigation, while others, such as Siemens(105), have clearly stated that there is no supply-side substitutability between these two types of product.
(337) The Commission therefore concludes that weatherproof wiring accessories constitute a separate relevant product market.
Control systems
(338) Control systems are systems for controlling a specific application in a particular part of a building (such as a room, office, floor or building). The three main applications concerned are heating, lighting and air conditioning.
(339) The Commission's in-depth investigation showed that, even supposing each of the different categories of product were regarded as forming a separate product market, the notified acquisition would not raise any competition concerns. The precise definition of the product market(s) can therefore be left open for this category.
Security and safety systems
Introduction
(340) Security and safety systems are designed to protect life and property by emitting the appropriate alarm signals in emergencies, or by providing emergency lighting in the event of failure of the mains supply. The main applications of such systems are:
- the protection of life: fire detection and emergency lighting systems (which include self-contained emergency lighting units and emergency lighting systems operated from a central source);
- the protection of property: intruder detection and access control systems.
(341) According to the parties, all security systems must be regarded as forming a single product market, since they are all concerned with ensuring safety. The various components of security systems have certain functions which all serve to fulfil one of the two basic functions (protection of life or protection of property) and they are thus complementary. Furthermore, the cohesiveness of the market is largely ensured by legislation that imposes the combined use of various types of security system. In the parties' view, this product market does not include products designed to provide physical protection (such as protective doors, fire doors, etc.) or suppression systems (such as automatic fire extinguishers). During the investigation, the parties nevertheless acknowledged that a distinction should be drawn between a market in systems for the protection of property and a market in systems for the protection of life.
(342) For the reasons set out below, the Commission's in-depth investigation during the second stage of the proceedings showed that there is a separate product market in emergency lighting systems.
(343) As regards other categories of security system besides emergency lighting, the precise definition of the product market may be left open since the notified acquisition raises no competition concerns, whatever the definition.
Emergency lighting, fire detection and other security systems
(344) Emergency lighting systems are designed to provide emergency lighting in the event of failure of the mains supply so as to allow the evacuation of people where necessary. There are two alternative emergency lighting solutions based on different technologies:
- elf-contained emergency lighting units, with their own batteries within their housing;
- and slave luminaires without batteries, which are connected to a central power source.
(345) Systems for the protection of life (which include emergency lighting and fire detection systems) are not substitutable on the demand side with systems for the protection of property, since these different systems meet fundamentally different needs. Systems for the protection of property are used in all sectors of activity, from the residential sector to large commercial buildings, and are normally optional, except in the case of high-risk buildings (such as banks or museums). On the other hand, according to information provided by the parties, fire detection and emergency lighting systems are used in public venues and establishments and are usually compulsory. It follows that, from the standpoint of demand, systems for the protection of life and systems for the protection of property cannot be regarded as belonging to the same product market. This view is furthermore shared by the parties.
(346) Nevertheless, the parties maintain in their reply to the statement of objections that emergency lighting systems and fire detection systems form part of one and the same market, namely the market in systems for the protection of life.
(347) It should first be noted here that emergency lighting systems perform a different function from fire detection systems, even if, as the parties point out, the two types of system are "synergetic" in that emergency lighting complements a general evacuation signal emitted by the fire detection system in the event of an emergency. They are therefore not substitutable on the demand side.
(348) In their reply to the statement of objections, however, the parties argue that the common purpose of emergency lighting and fire detection systems is to "protect the safety of persons" and that the two types of system complement each other. But the existence of an ultimate purpose such as "protecting the safety of persons", which the systems in question in any case share with a host of other products and systems, is not sufficient justification for including the two types of system in the same product market. The same conclusion should be drawn regarding the argument that they are complementary, as explained earlier in connection with weatherproof wiring accessories.
(349) It should also be noted that few manufacturers have strong market positions in both emergency lighting systems and other types of security system such as fire detection. Although, as stated by the parties in their reply to the statement of objections, many players are active in both segments, their market positions often differ widely between the two. According to an estimate by a third party, of the five biggest manufacturers of fire and intruder detection systems in France, only Legrand is also among the five main manufacturers of emergency lighting systems. And the leading competitor on the fire detection market in France and the rest of Europe, Siemens/Cerberus, is absent from the emergency lighting business.
(350) In their reply to the statement of objections, the parties argue that Schneider boosted its sales of fire detection systems after adding emergency lighting systems to its range, and that exactly the opposite had occurred in the case of Cooper France. The above example of Siemens/Cerberus nevertheless shows that being able to offer both fire detection and emergency lighting systems, while possibly constituting a competitive advantage, is not essential to the extent that the two types of system can be classed in the same product market.
(351) As far as supply-side substitutability is concerned, it should be noted that the various components of fire detection systems (smoke detectors, break glass call points, control panels, audible alarms and message systems, and fire-door closing devices), intruder detection systems (presence sensors, glass break and shock detectors, door or window opening sensors, control panels, sirens and diallers) and access control systems (audio and video entry phones, cameras, surveillance screens and coded keypads) are in no way interchangeable with self-contained emergency lighting units and components for central lighting systems (slave luminaires for connection to central sources and central supply sources).
(352) In this connection, the parties maintain in their reply to the statement of objections merely that all security systems perform the basic functions of detection and alert and that the technologies used in the manufacture of emergency lighting systems and fire detection systems are similar. This general assertion has not been spelled out by the parties and is not sufficient to demonstrate that there is supply-side substitutability between the systems concerned.
(353) The Commission's in-depth survey of third parties showed that a manufacturer of fire detection systems cannot start producing emergency lighting equipment without considerable additional cost and time. For example, a competitor pointed out that very different technologies are used for fire detection and alarm systems on the one hand and for emergency lighting systems on the other. For a manufacturer to switch from one to the other would require very heavy investments and a lead time of about 18 months before he could hope to market the first products(106).
(354) This Commission finding was not disputed by the parties in their reply to the statement of objections. They simply argued that 18 months should be regarded as the normal duration of the product creation cycle. This does not, however, create scope for supply-side substitution with equivalent effects to those of demand substitution in terms of effectiveness and immediacy(107).
(355) Emergency lighting cannot therefore be considered part of the same relevant product market as fire detection equipment. The Commission therefore concludes that emergency lighting systems must be regarded as forming a separate product market.
Connection equipment for communication networks
(356) The communication network connection category, as presented by the parties, comprises the passive components included in a computer network at building or floor level. This principally includes all types of data connector (including VDI sockets), connecting cables and wiring cabinets and their components.
(357) The Commission's in-depth investigation showed that, even supposing each of the different categories of product were regarded as forming a separate product market, the notified acquisition would not raise any competition concerns. The precise definition of the relevant product market(s) in this category can therefore be left open.
B.3.2 Definition of the geographic markets
Ordinary sockets and switches
Introduction
(358) According to the parties, the geographic market for the sale of sockets and switches is national. However, they also stated in the notification that a number of trends on the market are pushing it towards internationalisation.
(359) The national limit to the markets is due to the considerable barriers to entry that exist from one national market to another. These barriers result primarily from the applicable standards and the traditions (mainly aesthetic) of end users and specifiers. These various factors are reflected in the way the market currently functions in terms of the presence of the various participants (manufacturers, distributors, etc.), their brands and products that are sold on the market, together with their prices.
Standards
(360) Standards covering sockets and switches reflect a lesser degree of harmonisation than those relating to other electrical distribution products, such as the components of electrical switchboards.
(361) For socket outlets, besides design standards (for example, the international IEC 60884-1 standard and the European HD 60884-1 standard), which cover socket performance and safety and are included in the texts of national standards, there are specific national standards for pin configuration. This relates to the spacing of the electrical connection zones. Pin configuration standards differ from one Member State to another and will apparently not be harmonised at international or European level in the short or medium term.
(362) There are three main pin configuration systems for ordinary plug and socket outlets within the EEA. The "Franco-Belgian" configuration is used in France, Belgium and a number of border areas in Spain. The "Schuko" configuration is used in Germany, the Scandinavian countries, Austria, Spain, Portugal, the Netherlands and Greece, and the "British Standard" configuration is used in the United Kingdom and Ireland. Denmark and Italy have their own standards, with Schuko socket outlets used in Italy as polarised sockets in addition to the Italian standard(108)
(363) Table 16 shows the pin configuration standards that apply in the EEA countries:
Table 16
TABLE
Source:
the parties.
(364) The difference in the pin configuration standards that apply in the different EEA countries means that socket outlets belonging to one system cannot be used in a country with another system.
(365) However, the hypothesis that the existence of different pin configuration standards within one Member State implies a more narrow geographic segmentation of the markets than the national division was not confirmed. In two Member States, Spain and Italy, two parallel standards exist. However, in each of these two countries, one standard is largely dominant (in Italy, the CEI 23-16 standard at 92 %; in Spain, the Schuko standard at 95 %), with the second being confined to very specific applications (in Italy, the Schuko outlet is used as a polarised socket throughout the country) or to border regions (the Franco-Belgian standard in Spain).
(366) Like for the other low-voltage distribution products, the marketing of sockets and switches is in practice subject to a certificate of conformity with a national quality label issued by the relevant national certification body at the manufacturer's request. According to the parties, it takes between [two and seven]* months to obtain a first quality label in a country and costs some EUR [1000-5000]* per product. Where there is a mutual recognition agreement between the certification bodies concerned, quality labels in other countries are obtained by administrative procedure without the need for further tests. For socket outlets, however, mutual recognition agreements exist only within one pin configuration area (e.g. the Schuko area)(109).
Finish
(367) The investigation also confirmed that the finish (appearance and physical characteristics of the switch) and outer design of sockets and switches varies from one Member State to another. Since sockets and switches are the main parts of the electrical installation that are visible, traditions in national taste have a decisive influence on the choices made by users. In Denmark, for example, the specific finish developed by LK (Danish subsidiary of Schneider/Lexel) has become quasi-standard since it is considered to correspond to national taste.
Telephone and television sockets
(368) As regards traditional telephone sockets, it has already been mentioned that they conform to the long-standing specifications of national telecommunications operators. They therefore differ from one Member State to another in terms of their pin configuration. Moreover, they form part of ranges, the design and appearance of which (shape, colour) are designed to correspond to national taste.
(369) Television sockets also form part of ranges designed to correspond to national tastes. Although the pin configuration side of television sockets has been standardised by the EN 50083-1, EN 50083-4 and EN 50083-7 standards at European level, different national standards for socket outlets exist(110).
Presence of participants and brands
(370) The differences in terms of pin configuration standards and traditions relating to finish and appearance result in significant differences in the presence of the various market participants and the prices of their products in the different Member States.
(371) First, the various manufacturers are present on the market to very varying degrees in the different EEA countries. Legrand has a strong market position in France, Italy, Greece and Portugal and, to a lesser extent, in Austria, Belgium, Spain, Ireland and the United Kingdom. However, it is practically absent from the German and Dutch markets and the Scandinavian countries.
(372) Schneider, via its subsidiary, Lexel, has a strong position in the Scandinavian countries, but is less strong in most of the other Member States, mainly Austria, Belgium, Germany, Spain, France and Greece, and is completely absent from the Irish and Dutch markets.
(373) Of the parties' main competitors, only ABB is well positioned in most Member States (but not in Belgium, Denmark, France, Greece, Portugal or the United Kingdom). Siemens is present in three Member States (Austria, Germany and Greece). Hager has a strong position in the United Kingdom only. All the other participants in the various markets are local manufacturers, which nevertheless may have considerable market shares in their own countries (such as Niko in Belgium or Simon in Spain).
(374) The fact that the same manufacturer is present on a number of national markets does not mean, however, that competition conditions are homogeneous. A manufacturer is often represented by different brands, which, for example, belonged to local firms that were bought by an international manufacturer at a given moment in time. Schneider's presence on the sockets and switches market is essentially due to its subsidiary, Lexel, bought in 1999, which in turn operates via local subsidiaries such as Alombard (France), Eljo (Sweden), Strömfors (Finland) and others. Legrand operates under the Legrand brand in France, Belgium and Italy. Bticino, an Italian subsidiary of Legrand, is the brand under which products are sold in Italy and, to a lesser extent, in France and other countries. ABB uses, besides the ABB brand, local brands in Germany (BJE), Spain (Niessen) and Italy (Vimar).
(375) As regards manufacturers of television sockets which do not make high-current accessories, information provided by the parties also indicates that their presence on the market varies considerably from country to country, even if, in addition to local players, a number of firms are present on several or most of the national markets (e.g. Philips, Kathrein, Hirschmann and Triax).
(376) The distribution market is even more fragmented. As explained above, wholesalers, via which most sockets and switches are distributed, are organised on a national scale, or even a regional or local scale.
Products and prices
(377) As regards products actually sold, the information provided by the parties shows that in each product category, the most widely sold Schneider and Legrand items vary considerably from one Member State to another. A large proportion of what are the most widely sold products in one Member State are not even on offer in all or most other Member States. Schneider did not name a single item that featured among the five most widely sold products in more than one Member State, and explained this fact by reference to "local habits"(111). Legrand identified a total of 151 types of socket outlet, switch and dimmer (including weatherproof accessories) that are among the five most widely sold products in at least one Member State, of which only two are among the five most widely sold products in three different countries, and eight are among the most widely sold products in two countries(112). However, it should be noted that none of these products is sold in France, where Legrand has its strongest market position.
(378) The prices of the products concerned vary considerably from one Member State to another, as illustrated by Table 17, which shows the averages given by the parties for various products:
Table 17
TABLE
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(379) Table 17 does not take account of the fact that most products actually sold in the various EEA countries are not identical. None the less, comparing the prices of products sold in a number of Member States reveals significant price differences. For example, for the Legrand socket and switch types that are among the five most widely sold in more than one Member State, the following differences were found between average net prices(113):
Table 18
TABLE
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
Conclusion
(380) The relevant markets for the sale of sockets and switches are therefore national in scope.
Weatherproof wiring accessories
(381) According to the parties, that include weatherproof wiring accessories in the ordinary sockets and switches market, the geographic market is national. In fact, the geographic market for weatherproof wiring accessories must be considered national for much the same reasons as for the ordinary sockets and switches market.
(382) Furthermore, installation habits vary from one Member State to another. For example, habits require accessories to be either surface or flush mounted, or a different IP rating (indicator of the degree of resistance required) to be used, depending on the country, for the same application. Thus, for the same type of premises, it is customary to use IP 55 in France, IP 44 in the Schuko area and IP 56 in the British Standard area, the highest IP indicating the highest degree of resistance. These different habits mean that products made for the market of a country where a lower IP rating is accepted cannot be sold in a country with a higher IP rating, while products with a higher IP could be too expensive to be marketed on a large scale in a country with a lower IP requirement.
(383) Products sold in the different Member States therefore vary considerably from one pin configuration area to another. Of the five Legrand products most widely sold in Germany (a Schuko country), four are also among the five most widely sold in Austria (also part of the Schuko area), but none are among the five most widely sold in France or the United Kingdom, which require a considerably higher IP rating.
(384) To the extent that the same products are sold in several countries, their prices can vary considerably. For example, for the five most widely sold Legrand products in France, Table 19 shows the selling prices in the other Member States where these products are also among the five most widely sold:
Table 19
TABLE
Source:
information provided by the parties.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
Emergency lighting systems
(385) According to the parties, the extent of the market in security and safety systems is European, or even wider. They state that the need met by such systems is present to the same extent in Europe and all developed countries. Firms involved in the security business are active in several European countries where legislation is similar and convergent.
(386) However, it must be noted that emergency lighting is installed in public buildings. It is therefore subject to national legislation on public buildings, which, in some countries at least, imply deviations from the applicable harmonised standards.
(387) The European standard applicable to emergency lighting is EN 60598-2-22, based on the international standard IEC 60598-2-22 and applicable in all EEA countries. However, in France there is a national deviation, mentioned in the European standard. This derives from the decree of 2 October 1978 regarding establishments open to the public and relates to temperature resistance, position in relation to other electrical equipment and independence from supply circuits(114).
(388) Like for other items of low-voltage electrical equipment, quality labels exist that are issued by national certification bodies. However, unlike with the other products concerned, it is compulsory to obtain this label in some Member States, including France. In France, this entails a cost of some EUR [1000 - 8000]* and a period of between [one and twelve]* months to obtain the label, unless the product has already been certified by the relevant body in another Member State that has signed the Cenelec Certification Agreement(115). In Belgium, government buildings are granted approval by the Buildings Department of the Home Affairs Ministry under a specific regulation. The parties stated that obtaining this approval costs EUR [1000 -5000]* and takes [1-12]* months(116).
(389) The parties also concede that tastes and installation habits with regard to emergency lighting systems vary from one Member State to another. These variations relate, for example, to the voltage of the supply and the duration of the charge of the lighting units. This means that different products are required.
(390) Manufacturers' positions on the different national markets in emergency lighting vary considerably. Legrand, with its URA/Lumatic subsidiaries, has a market share of [60-70]* % in France ([70-80]* % according to an internal sales department document), [30-40]* % in Spain, [10-20]* % in Portugal and [10-20]* % in Belgium. In all other countries, Legrand's market share is below [10-20]* %. Schneider has a significant market position only in France ([0-10]* % of the market).
(391) The names and market shares of other competitors also vary from country to country. Only Cooper/Menvier (present in Austria, Belgium, Portugal and the UK), Zemper (Spain and Portugal) and Beghelli (Austria, Belgium, Italy) are major competitors of the parties in a number of Member States(117).
(392) Legrand sells its emergency lighting equipment via wholesalers, which contributes to the national fragmentation of the markets(118).
(393) Where a manufacturer is present on different national markets, it sells different products on those markets. Of the five most widely sold types of self-contained emergency lighting unit in France, only two are among the five most widely sold Legrand types in another Member State of the EEA, namely catalogue numbers [...]* in Austria and Portugal. However, these two products are sold at a higher price in [...]* than in the other two countries, as illustrated by the following table:
Table 20
TABLE
Source:
the parties.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(394) The Commission therefore concludes that the relevant geographic market for the sale of emergency lighting systems is national, at least as far as the French market is concerned.
B.4 FIXING AND CONNECTING EQUIPMENT
B.4.1 Definition of the fixing and connecting equipment product market
(395) The product market defined by the parties comprises fixing and connecting equipment used downstream of the final panelboard and upstream of the wiring accessories. It covers the following categories of products:
- flush-mounting boxes, i.e. boxes fitted into the wall, with rear and side entry for cables pulled inside the wall. The outside of the box is fitted with the appropriate equipment (switches and sockets). The parties have mentioned that boxes may differ slightly according to the type of wall (concrete, dry partition walls, brick walls);
- junction boxes, i.e. boxes for the protection of cable connections;
- equipped junction boxes, i.e. the accessories used to make cable connections;
- terminal strips, i.e. the accessories used to connect wires and cables;
- cable guides, i.e. the small tubing used to protect cable;
- cable clips, i.e. the accessories used to fix cables;
- cable ties, i.e. the accessories used to bundle cables together or onto a mounting;
- rigid conduits, i.e. tubing that carries and protects cable;
- tube fixing accessories, for surface mounting.
(396) The parties consider that these products constitute one and the same product market as they are all used in the wiring infrastructure of an electrical installation, from the final panelboard up to connection with the wiring accessories (sockets, switches, etc.). More specifically, these products, used in all electrical installations, are designed to carry, protect and join cable used in electrical installations(119). The parties add that the products are substitutable from the standpoint of supply and involve the same basic moulding, extrusion, cutting and machining techniques. They could be produced in a single operation using relatively inexpensive inputs(120). The parties claim that, owing to the similarity of the technologies required to manufacture the various fixing and connecting products, companies already producing certain products could start manufacturing other products(121).
(397) A precise definition of the product market for the sale of fixing and connecting equipment is not required in the present case as the proposed operation raises identical competition problems however the relevant market is defined.
B.4.2 Definition of the geographic market for fixing and connecting equipment
(398) The parties have not adopted a clear position on the geographic dimension of the market for fixing and connecting equipment. They state in Form CO that the geographic dimension of the market "cannot be regarded as purely national". The factors described below, as well as the general considerations outlined above in connection with distribution boards(122), confirm on the contrary that the relevant product market is national.
National specifications as well as international standards apply to mounting and junction boxes
(399) Mounting and junction boxes are covered by standard IEC 60670, which lays down the "general requirements for enclosures for accessories for household and similar fixed electrical installations". The parties have pointed out, however, that the standard does not specify the dimensions of the boxes in question. The dimensions are in fact laid down by the national standards bodies, which leads to national differences. The bodies specify the dimensions for mounting and junction boxes on different bases, usually according to the particularities of the building industry in the Member State in question; these include the type of building materials used, the quality and diversity of walls and partitions (concrete, brick, masonry, dry partition walls, etc.). The parties state, however, that some groups of countries, such as the Nordic countries, have adopted similar dimensions. France, however, does not impose any dimensions for mounting and junction boxes(123).
National quality labels apply alongside international standards to several categories of connecting and fixing equipment
(400) Quality labels relating to several categories of connecting and fixing equipment exist in the different EEA countries. National quality labels are granted by independent national certification bodies and offer consumers a guarantee that the marked product complies with the technical requirements defined by the standards applicable to the products in question. The technical requirements may stem either from a European standard, directly or indirectly via a national standard transposing at domestic level the international standard, or from a national standard that is entirely unrelated to any international standard. Although labels are obtained on a voluntary basis, the parties acknowledge that there is clear commercial advantage in obtaining such labels in certain countries, notably France, Germany and Italy(124).
(401) The parties have thus obtained quality labels for the following products:
- for several types of flush-mounting boxes(125): OVE (Austria) and CEBEC (Belgium);
- for terminal strip: NF (France), KEMA (Netherlands), VDE (Germany), IMQ (Italy), AENOR (Spain), CEBEC (Belgium)(126);
- for rigid conduit: NF USE (France), awarded by LCIE(127).
The most widely sold fixing and connecting equipment varies considerably from one Member State to another
(402) Schneider states that, as regards fixing and connecting equipment, the five most widely sold products differ from one country to another owing to local customs(128). In addition, the different entities of the Schneider group present on the relevant market, such as Alombard or Sarel, usually sell these products in only one Member State. The comparisons given below therefore essentially concern Legrand products.
Flush-mounting boxes
(403) The parties state that the most widely sold models vary considerably according to the Member State(129). The data supplied by Legrand show that the five most widely sold mounting boxes vary considerably from one Member State to another and that it is unusual to find one of the products on the list in more than three Member States. Thus, the list supplied by Legrand of the five most widely sold mounting boxes in eleven EEA countries in 2000(130) contains 37 models. Of these, three appear in four countries (and none in more than four countries) and three appear in three countries.
Equipped junction boxes
(404) The parties explain that equipped junction boxes are used mainly in France and in only a few other Member States(131). According to an internal Legrand document(132), it seems that in 2000, Legrand, which is present on the market for connecting and fixing products in seven Member States, sold this product in only four Member States, i.e. France, Germany, Austria and Ireland(133).
Rigid conduit
(405) The parties state that rigid conduit diameters vary from one Member State to another. As a result, the diameters of the accessories used to fix the conduit also vary from one country to another. The parties add that in some Member States metal conduits are used whilst PVC is employed in others(134).
Cable ties
(406) The data supplied by Legrand show that the list of the five most widely sold models of cable tie varies significantly from one Member State to another, and that items on that list are only rarely found in more than three Member States. Thus the list supplied by Legrand of the five most widely sold types of cable ties in each of the 15 EEA countries(135) consists of 39 different models. Of these, only two appear in four countries (and none in more than four countries), whilst six appear in two countries.
(407) The parties also explain that, as regards cable ties, a particular category known as Colson cable ties is used very much more widely in certain EEA countries, especially France, than in others. The product has special weather- and tear-resistance qualities due to the fact that it is made of a stronger but also much more expensive plastic than that used for other cable ties. Its extensive use in France is due to the fact that it was adopted by EDF when the latter decided that the cost of replacing broken clips over a wide geographical area was prohibitive and unacceptable(136).
Significant price differences between Member States
(408) For each of the main categories of fixing and connecting equipment, the Commission asked the parties to provide it with the average selling price of each of the five most widely sold products in all the Member States in which the products are sold(137). Where the same products are among the five most widely sold products in more than one country, their prices differ significantly.
(409) In any event, the products in question generate a large proportion of Legrand's sales within each of those categories of fixing and connecting equipment. They are therefore representative of those categories of products.
Flush-mounting boxes
(410) Table 21 below shows the selling prices, in euros, of each Legrand mounting box on the list of the five types most widely sold in at least two Member States in 1999.
Table 21
TABLE
Source:
the parties.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(411) Apart from product No [...]*, the price disparities between Member States for most types of flush-mounting box marketed by Legrand are particularly significant. A comparison between neighbouring or nearby Member States alone shows that:
- product No [...]* sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [0-50]* %;
- product No [...]* sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [0-50]* %;
- product No [...]* sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [0-50]* %;
- product No [...]* sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [50-100]* %;
- product No [...]* sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [50-100]* %.
Cable ties
(412) Table 22 shows the selling price in euros of each model of Legrand cable tie among the five most widely sold products in at least two Member States in 2000.
Table 22
TABLE
Source:
the parties.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(413) The price differences between Member States as regards most of the clips sold by Legrand are considerable. The differences just between neighbouring or nearby countries alone are striking:
- product No [...]* sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [0-50]* %;
- product No [...]* sells at EUR [...]* in [...]*, [...]* in [...]* and EUR [...]* in [...]*, a difference of [0-50]* % between [...]* and [...]*, [0-50]* % between [...]* and [...]* and [0-50]* % between [...]* and [...]*;
- product No [...]* sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [0-50]* %;
- product No [...]* sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [0-50]* %;
- product No [...]* (not shown in Table 20) sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [0-50]* %.
Equipped junction boxes
(414) According to the data supplied by Legrand(138), it sold junction boxes in four Member States in 2000. The products referred to below were among the five products most widely sold in those Member States in that year. These products therefore generated a considerable volume of sales in the category of equipped junction boxes and are thus representative of the category as a whole.
(415) In 2000, Legrand product No [...]*, listed as a "[...]*" sold at an average unit price of:
- [90-130]* EUR in France;
- [290-330]* EUR in Austria;
- [340-380]* EUR in Ireland.
(416) In 2000, Legrand product No [...]*, listed as a "[...]*" sold at an average unit price of EUR [...]* in [...]*, whereas in [...]* in the same year it sold at an average unit price of EUR [...]*, a difference of [50-100]* %.
(417) Lastly, in 2000, Legrand product No [...]*, listed as a "[...]*" sold at an average unit price of EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [250-300]* %.
Cable guides
(418) Table 23 below shows the selling price in euros of each type of Legrand cable guide on the five most widely sold list in at least two Member States in 1999.
Table 23
TABLE
Source:
the parties.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(419) The price differences between Member States as regards most of the clips sold by Legrand are considerable. The differences just between neighbouring countries are striking:
- product No [...]* sells at EUR [...]* in [...]*, [...]* in [...]* and EUR [...]* in [...]*, a difference of [50-100]* % between [...]* and [...]*, [50-100]* % between [...]* and [...]* and [300-350]* % between [...]* and [...]*;
- product No [...]* sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [50-100]* %;
- product No [...]* sells at EUR [...]* in [...]* and EUR [...]* in [...]*, a difference of [50-100]* %.
No competitors other than the parties concerned are present in more than one Member State and the positions of the parties in the different Member States are asymmetrical
(420) It seems that few companies operating on the market for fixing and connecting equipment are present in several Member States. The documents submitted by the parties(139) show that only Schneider and Legrand market these products in more than one EEA country. Schneider is present in six EEA countries (Denmark, Finland, France, Italy, Sweden and Norway) and Legrand in seven (Spain, France, Italy, Ireland, Netherlands, Portugal and the United Kingdom). The parties' chief competitors, Hager, Siemens, ABB and Gewiss, are present in only one Member State despite the fact that at least the first three companies referred to are major groups located in a number of EEA countries.
(421) Furthermore, the market shares announced by the parties(140) show very different positions in the various EEA countries in which they are present. Schneider has a market share of [20-30]* % in France, but only [0-10]* % in Italy. Similarly, it has a [60-70]* % share in Norway but only [30-40]* % in Sweden. As for Legrand, it has a market share of [50-60]* % in France but only [10-20]* % in Italy and [10-20]* % in Spain. The parties also report that "there is often competition from small and medium-sized firms on the domestic market, which often have considerable shares of the local market" for fixing and connecting equipment(141).
Fixing and connecting equipment is distributed on a national basis
(422) The parties state that an average of 90 % of the turnover of manufacturers of fixing and connecting equipment stems from sales to wholesalers(142).
(423) As explained above, relations between manufacturers and wholesalers of electric distribution equipment are organised on a national basis, even in the case of manufacturers and wholesalers operating at European level. This is also true of fixing and connecting equipment, which is also distributed on a national basis.
Conclusion
(424) The relevant geographic market for the sale of fixing and connecting equipment is therefore national. In their reply to the statement of objections, the parties did not contest this conclusion.
B.5 TRANSFORMATION AND POWER SUPPLY EQUIPMENT
B.5.1 Product markets
(425) Transformers and power supplies are utilised in low-voltage equipment for the control and automation of machinery used in industrial processes and buildings. They supply the appropriate voltages and currents to the control and power part of the automation equipment, which, for safety reasons, must be isolated from the main supply and often requires different supply voltages (e.g. lower or direct current voltages) from the mains supply.
(426) The parties state that transformers and power supplies belong to the same product market as they are the result of technological choices fulfilling the same need, which is to supply electricity to automation products. This claim, however, does not stand up to scrutiny.
(427) First, transformers and power supplies have different functions. The former are intended for alternating current control circuits and modify voltage and isolate the system from the main supply. The latter make it possible to provide direct voltages. The parties also stated in their reply to the statement of objections that power supplies often display a much higher level of sophistication and functionality (protection, fail safety, high-performance control, etc.), which, they claim, is reflected in their higher price as compared with transformers.
(428) Then the choice of automation device dictates the choice of transformer or power supply. The parties explained in the course of the investigation that the choice of one or other technology depends on an upstream choice relating to the automation itself. Thus, they claim, an automation/transformer combination and an automation/power supply combination can be substituted for each other. According to the argument put forward by the parties, transformers and power supplies for automation equipment are no longer substitutable on the demand side once the automation device has been chosen.
(429) Furthermore, the two types of product are complementary. The parties explain that modern automation devices usually include an isolation transformer and electronic power supplies in order to adjust and regulate voltage levels. The technologies concerned thus complement rather than compete against each other.
(430) In their reply to the statement of objections, the parties nevertheless maintain that the choice between transformers and/or power supplies remains wide open from one use to another even after the automation device has been chosen.
(431) However, this assertion not only contradicts the explanations provided by the parties in reply to requests for information made by the Commission during the investigation;(143) it is also disproved by the information given in the Télémécanique (Schneider) catalogue(144), which explains in detail, in the form of a "selection guide", the different functions of transformers, filtered rectified power supplies and switch mode power supplies, and the applications (for example in terms of control circuits, environment, mains supply, load sensitivity) for which these types of product are suitable. In their reply to the statement of objections, the parties add other factors, such as reliability, maintenance conditions or standardisation of the automation device components, which may dictate the choice of either a transformer or a power supply, or even a particular type of power supply. It follows that there is only very limited supply-side substitutability between transformers and power supplies.
(432) The prices of transformers and power supplies differ significantly. Of the Schneider products on the list of the five products most widely sold in each of the EEA countries, the average price of transformers varies from EUR [10-50]* (type [...]* in [...]*) to EUR [40-80]* (type [...]* in [...]*), whereas the average price of power supplies ranges from EUR [10-50]* (type [...]* in [...]*) to EUR [480-520]* (type [...]* in [...]*). The corresponding prices charged by Legrand vary from EUR [0-40]* (type [...]* in [...]*) to EUR [180-220]* (type [...]* in [...]*) for transformers and from EUR [40-80]* (type [...]* in [...]*) to EUR [400-440]* (type [...]* in [...]*) for power supplies.
(433) In their reply to the statement of objections, the parties claim that these price differentials reflect the higher level of sophistication and functionality of power supplies in comparison with transformers.
(434) This assertion clearly implies that the two types of product are not substitutable on the demand side given their characteristics and prices(145).
(435) Transformers and power supplies are furthermore very different from a technological standpoint. The parties stated in the course of the investigation that power supplies are based on "programmable logic" technology and consist mainly of electronic components (even though in most cases they comprise a transformer). Transformers are based on "hardwired logic" technology consisting of electromechanical components and have no electronic components(146). Transformer technology has reached a stable plateau, whereas power supplies are a product of constantly evolving technologies(147). A competitor explained that transformers and supply equipment not only involve different production tools but also different testing and checking equipment. That is why a transformer manufacturer expends a considerable amount of time and money in order to start manufacturing power supplies and vice versa(148). There is therefore no supply-side substitutability between the two products.
(436) In response to this argument, the parties stated in their reply to the statement of objections that there was a wide range of specific functions served either by transformers or by power supplies and that associating transformers with certain "hardwired logic" industrial products and power supplies with other "programmable logic" products was "simplistic". The parties also take the view that switching production from transformers to power supplies and vice versa "does not give rise to any difficulties", but they do not explain in detail the time and cost involved.
(437) Such an assertion cannot invalidate the finding that there is no supply-side substitutability between transformers and power supplies. However wide the possible range of power supply solutions, it is clear from the information supplied both by the parties and by the abovementioned third parties that all power supply variants are based on a fundamentally different technology from that of transformers.
(438) The parties also maintained that most of the market players sold both transformers and power supplies. It should nevertheless be pointed out that, although a considerable number of manufacturers are indeed present in both segments, of all the competitors with a market share of more than [...]* % on the combined market in transformers and power supplies only Siemens and Cecla are active in both segments, while the others are present only in the power supplies segment, so that they do not exert any actual competitive pressure on the parties in the transformers segment.
(439) The parties also argue in their reply to the statement of objections that the use of transformers is declining in favour of power supplies given the market trend towards greater technical sophistication and the increasing use of electronics. This trend, so they claim, is forcing market players to switch production from transformers to rectified (electromechanical) power supplies, then filtered rectified (electromechanical) power supplies and finally to stabilised (electronic) power supplies.
(440) If such a trend indeed exists in the medium or long term, it is not likely, however, to exert sufficient competitive pressure on transformer manufacturers. As explained earlier, the choice of either a transformer or a power supply depends on the prior choice of automation device, so that the substitution described by the parties can operate only in terms of the choice between an automation/transformer solution and an automation/power supply solution. Since an automation device is not usually chosen exclusively with a view to the type of access to the electricity source, it is unlikely that an increase in the prices of transformers would suffice on its own to convert a sufficiently large proportion of the demand for an automation/transformer solution into demand for an automation/power supply solution. This is, moreover, illustrated by the price variations noted above.
(441) The Commission therefore concludes that transformers and electronic power supplies constitute separate product markets.
B.5.2 Geographic market
(442) In geographic terms, the parties claim that the market has a European dimension. They state that transformers and power supplies are standardised at international level and that the main competitors have an international presence on the basis of a standard catalogue and a single brandname.
(443) The law applicable to transformers and power supplies is harmonised at European level. The relevant standards for voltage transformers are the IEC 61558 series standards and the EN standards in the same series. The standards deal with the electrical, thermal and mechanical safety aspects of transformers with a primary voltage of less than 1000 volts and power supplies incorporating such transformers. Power supplies are covered by IEC standard 60950 and the equivalent European standard bearing the same number. There are no relevant national standards.
(444) At the request of a customer, transformer and power supply manufacturers commission independent laboratories to certify that their products conform to the standards applicable. As the parties have pointed out, all the laboratories recognised by the EEA countries are able to carry out the necessary tests and deliver a certificate of conformity with the standard. However, the reputation of the laboratory and its recognition by the market are decisive factors in the choice made. The parties estimate the time and the cost involved in obtaining a certificate at [1-18]* months and FRF [50-250]* respectively. Although such costs cannot be regarded as prohibitive, they do nevertheless constitute a barrier to market entry between Member States that is far from negligible, since certification has to be obtained for each model separately and certificates have to be renewed at regular intervals.
(445) Analysis of the prices quoted by the parties shows that there are substantial variations from one Member State to another. Table 24 below shows the selling price in euros of each type of Schneider transformer and power supply on the five most widely sold list in at least two Member States.
Table 24
TABLE
Source:
the parties.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(446) It is clear from such price differences that supply can raise prices in some countries without running the risk of customers importing the products from neighbouring countries.
(447) In their reply to the statement of objections, the parties argue that the variations in Schneider prices do not provide any guidance for the purpose of defining the geographic market since they result from the fact that Schneider decided not to develop a Europe-wide pricing policy given the small quantities of products concerned and the minimal turnover generated thereby. But, in the absence of a group-level pricing policy, the prices set by Schneider subsidiaries in the different countries do reflect competitive conditions in the countries concerned. The price variations observed therefore reflect competitive conditions that differ significantly from one country to another(149).
(448) It should likewise be noted that there are also price variations, albeit to a lesser extent, in the case of Legrand products. Table 24a below shows the prices of the five most widely sold transformers in France which are also on the five most widely sold list in at least one other Member State.
Table 24 a
TABLE
Source:
the parties.
(449) According to the parties, 60 % of transformers and power supplies sold by them are distributed by wholesalers organised at national level. Schneider estimates that in France, where the overlaps between the parties are the greatest, its sales to wholesalers reach [70-80]* % for transformers and [70-80]* % for power supplies.
(450) In their reply to the statement of objections, the parties also mention the presence at international level of manufacturers of different sizes, including major players such as Omron, Siemens and Phoenix, but also numerous SMEs.
(451) However, the presence of a player in several countries does not necessarily mean that competitive conditions are sufficiently uniform there. The data provided by the parties in the course of the investigation suggest that the market positions of the different players vary considerably from one country to another. For example, Legrand's share of transformer and power supply sales exceeds [0-20]* % only in France ([20-40]* %), Belgium ([0-20]* %), the Netherlands ([0-20]* %), Italy ([0-20]* %) and the United Kingdom ([0-20]* %). Siemens' share varies between [0-20]* % in the United Kingdom and [20-40]* % in Germany; the share held by Phoenix ranges from [0-20]* % (Austria, Finland) to [20-40]* % (Belgium).
(452) The parties also claim that there are a great many exports, although without quantifying the proportion of imported products sold in a particular country. But the fact that products are exported does not prevent the extent of the market being national if other factors show that supply and demand are matched on a national basis, as in the case in point.
(453) As for the claim made by the parties in their reply to the statement of objections that the products sold were often the same in different countries, it is sufficient to note that the data supplied by the parties show that the Legrand models sold in the different Member States vary considerably. Of the five most widely sold models in France, for example, only one figures on the five most widely sold list in three other countries (including the Benelux countries) and two are found in no other Member State. It is also clear from the price variations observed that customers do not seek to take advantage of differences in prices to any appreciable extent.
(454) It should be mentioned here that the parties state in their reply to the statement of objections that there are customised products in addition to the standard catalogue range. This means that transformer manufacturers and their customers (original equipment manufacturers, or OEMs) need to maintain a close relationship. Since both transformer manufacturers and OEMs are often small or medium-sized enterprises that do not have a sales or purchasing network in more than one country, the need to maintain such a relationship limits the scope for customers to source from manufacturers in other countries.
(455) The Commission accordingly concludes that the markets for transformers and power supplies are both national.
B.6 CONTROL AND SIGNALLING UNITS
B.6.1 Product market
(456) The parties define a product market consisting of control and signalling units, i.e. mechanical connection equipment designed to operate apparatus. The product market as defined by the parties includes the following categories of product:
- pushbuttons, i.e. a control switch with a device designed to be operated by a part of the human body, usually a finger or the palm of the hand, and equipped with a spring return;
- selector switches, i.e. a combination of switching elements of the push-button type activated manually by turning;
- pressure buttons, i.e. a pushbutton for use in applications where a shallow depth is required; the electrical connection is made by a printed circuit;
- pushbutton boxes, i.e. metal or plastic (polyester) pre-punched enclosures designed to accommodate the operator/machine interface. The end product constitutes a control panel;
- pushbutton keypads, i.e. mechanical connecting equipment that controls the operation of a connection device. A keypad consists of three main elements:
- a set of keys;
- an electronic data processing and data transmission unit;
- a connection interface;
- membrane keypads, a special keypad technology. The membrane is the part in contact with the operator, enabling the keypad to be customised to the needs of the end user;
- cam switches, i.e. a control switch operated by angular rotation which modifies the connections of one or more electrical circuits;
- rotational switch disconnectors, i.e. a mechanical connection device capable of establishing, carrying and breaking electrical current under normal operating conditions. It also satisfies the isolation requirements for disconnectors;
- master controllers, i.e. operating devices controlled by an angular positioning toggle switch;
- pilot lamps, i.e. a signalling device composed of a coloured head (light) designed to inform the operator about the status of the machine. It also includes terminal connections in the lower section which supply power. A pilot lamp head can be associated with a push button to form an illuminated push button.
(457) The different types of product described above are available in several cable and fixing diameters: 12 mm, 16 mm, 22 mm and 30 mm, in accordance with the standards laid down by the IEC and Cenelec(150). Historically, the 30 mm diameter appeared first and was particularly widely used in the steel industry. This diameter gives a solid and strong product. Gradually, the development of production techniques and customers' desire to reduce the size of the equipment led to the development of smaller diameters. The parties state(151) that, at present, the 30 mm diameter is gradually being replaced by the 22 mm diameter. The more fragile 16 mm and 22 mm diameters are chiefly used in electronic equipment in protected environments. Thus the 16mm diameter is, they claim, increasingly used for the pushbutton keypads and membrane keypads referred to above.
(458) The parties consider that these different products form a single product market as they all fulfil the same purpose, i.e. they provide the interface for the man-machine dialogue. More specifically, the products are designed to be incorporated into the control panels of low-power motors or automation products(152). According to the parties, the products are largely substitutable on the demand side. All control and signalling units could thus be used equally or replace each other in the machinery. The reason why manufacturers use one rather than another type of product is, according to the parties, essentially linked to the priorities of the end user in terms of aesthetics, dimensions and customs(153). The parties add that the products are substitutable on the supply side as they are all electromechanical products. Only the most complex membrane keypads require screen printing skills for button production(154).
(459) In this present case an exact definition of the market for control and signalling units is not necessary as, irrespective of the definition of the relevant market, the transaction raises identical problems of competition.
B.6.2 Geographic market
(460) The parties consider that the geographic dimension of the market for control and signalling units is European or even worldwide. They rely firstly on the fact that the products are intended to be incorporated into industrial machinery that is sold in an identical form throughout the world. The export of industrial machinery is also bringing about a narrowing of the range of control and signalling units used to the 22 mm diameter category. The parties explained that, for a given function, punchout diameter and technical characteristics, there is only one product on the market in Europe, as evidenced by the fact that the same reference number is used in the product catalogues distributed in the different Member States(155). The parties add that the products are covered by completely harmonised European standards; there are no specific national features or quality marks.
(461) The following paragraphs conclude that the geographic dimension of those markets is national.
The prices of control and signalling units are substantially different from one Member State to another
(462) Analysis of the prices quoted by the parties shows that there are substantial variations from one Member State to another. Thus the prices of the five control and signalling units most widely sold in each of the EEA countries by Schneider vary considerably, as shown in the table below compiled from data supplied by Schneider(156). The five products belong to five different categories of control and signalling units; they may therefore be regarded as a representative sample of control and signalling units generally.
Table 25
TABLE
Source:
the parties.
[Non-confidential version: * = 0-50; ** = 50-100; *** = 100-150; etc.]*
(463) Generally speaking, the data supplied by Schneider(157) show that (i) there are substantial price disparities between EEA countries, as well as between neighbouring countries, for the same product and that (ii) although the disparities fluctuate sharply from one year to the next, they are nonetheless significant overall in the period in question. Thus the price disparity in 1999 between France and Germany ranged from [0-40]* % (for product [...]*) to [20-60]* % (for product [...]*). In 1997, the price disparity ranged from [0-40]* % (for product [...]*) to [10-50]* % (for product [...]*). Similarly, the difference between France and Spain in 1999 ranged from [0-40]* % (for product [...]*) to [10-50]* % (for product [...]*). In 1997, the price disparity between France and Spain ranged from [0-40]* % (for product [...]*) to [20-60]* % (for product [...]*).
(464) It is also interesting to note that the price disparities increased in the period in question between other neighbouring countries. Thus between Germany and Belgium the price difference in 1999 ranged from [0-30]* % (for product [...]*) to [30-60]* % (for product [...]*). In 1997, the price difference ranged from [0-30]* % (for product [...]*) to [10-40]* % (for product [...]*).
(465) An identical conclusion can be drawn from an analysis of the prices for control and signalling units sold in the period 1995-2000 in various EEA countries by Baco, a Legrand subsidiary.
(466) In general, the data supplied by Legrand(158) show that (i) there are substantial price differences between EEA countries, even between neighbouring ones, and that (ii) although the differences fluctuate sharply, they are nonetheless considerable overall in the period in question. Thus in 2000 the price differences between France and its neighbours (Germany, Belgium, Italy and Spain) ranged from [30-60]* % (with Belgium) to [50-80]* % (with Italy). In 1995, the differences ranged from [30-60]* % (with Belgium) to [60-90]* % (with Italy). It is also interesting to note that the differences between certain neighbouring countries increased over the period. Thus the price disparity between Spain and Portugal rose from [0-30]* % in 1995 to [10-40]* % in 2000. Similarly, the price disparity between Germany and Austria rose from [0-30]* % in 1995 to [0-30]* % in 2000.
(467) The prices for control and signalling units marketed by the parties thus vary substantially from one EEA country to another. The parties have not provided any information indicating the contrary as regards their competitors.
(468) In their reply to the statement of objections(159), the parties claimed that the above price differences between Member States for control and signalling units sold by them were not relevant because some of the prices incorporated the trade discounts they offered their customers (they were "net" prices) while others did not (they were "gross" prices); the prices were therefore not comparable.
(469) It should first be pointed out here that the parties were invited, by point 33 of the questionnaire of 20 March 2001, to supply the "invoiced prices" for each of the categories of control and signalling unit they market in each of the EEA member countries. The parties also stated in their reply to that point in the questionnaire that the prices quoted to the Commission were the "average prices charged" (Schneider)(160) and the "average selling prices" (Legrand)(161). The selling prices for control and signalling units quoted by the parties are therefore net prices, exclusive of any discounts and volume rebates, and are comparable.
(470) The parties also argue(162) that differences in the volumes of their sales in each of the categories of control and signalling unit provide objective justification for differences in prices. This argument is implicitly based on the idea that the amount of discounts and volume rebates they grant on each of their sales differs from one Member State to another and that this explains, in their view, the differences observed in average selling prices. It is sufficient to note here that the parties have not supplied any evidence establishing that the average level of their sales volumes per deal differs from one Member State to another. In particular, the parties have not proven that customers exist in certain Member States who generate larger sales volumes than in other Member States and that, through the application of discounts and volume rebates, the average net selling price of the products in question is lower there. If that were the case, it would in any event constitute a further important piece of evidence in favour of defining the relevant market on a national basis.
(471) Lastly, the parties argue that no conclusion can be drawn from the differences in Baco's and Legrand's selling prices between Member States since those two companies sell only small quantities and almost exclusively in France. The differences observed in the prices charged by Schneider, the undisputed market leader in control and signalling units in the EEA, with a market share of [20-30]* % and a presence in each of the Member States, constitute particularly conclusive evidence for finding that there are significant price differentials between Member States. Furthermore, although Legrand holds a significant market share only in France, it does market the products in question in eight Member States. The fact that Legrand does not have a Europe-wide pricing strategy, as pointed out by the parties(163), far from providing objective justification for the above differences in selling prices, constitutes further evidence that the prices of control and signalling units are set at national level.
(472) The prices of control and signalling units are therefore substantially different from one Member State to another
The position of manufacturers of control and signalling units varies substantially according to the Member State
(473) Table 26 below, provided by the parties, shows the position of the major manufacturers of control and signalling units in the EEA countries in 2000.
Table 26
TABLE
Source:
the parties.
(474) It is clear from the table above that the positions of the manufacturers vary considerably from one Member State to another. In general, it seems that each producer has a significantly larger market share in one Member State and that its position in the other Member States, even neighbouring ones, is (i) much weaker and (ii) fluctuates widely. Thus Schneider's share of the French market is [50-60]* %, whereas in the neighbouring countries its share is [20-30]* % in Spain, [20-30]* % in Belgium, [20-30]* % in Italy and only [0-10]* % in Germany. As for Legrand, its share of the market is significant only in France ([0-10]* %) and it is not present at all in the neighbouring countries, including Italy, despite its particularly strong presence on other product markets. Again, Siemens and Moeller, with [10-20]* % and [10-20]* % respectively of the German market, have only half those shares in Belgium ([0-10]* % and [0-10]* % respectively), and a very minor share of the French market ([0-10]* % and [0-10]* % respectively). Kraus & Naimer, which leads the market in Austria with a [10-20]* % share, has a much smaller share of the German market ([0-10]* %). The same is true of Rockwell ([0-10]* % in Austria and [0-10]* % in Germany). Most of the other firms operating on the market (EAO, ABB, GE, RAFI, Hoffman, Entrelec) have a market share in excess of [0-10]* % in one country but are only marginally or not at all present in the other countries.
(475) In their reply to the statement of objections(164), the parties argued that the above variations in the market shares of the main competitors were the result either of historical factors or of the fact that, since control and signalling units were low-value items, the market players were active only in those geographical areas where their presence required little commercial effort. They also stressed the fact that six competitors were present in more than ten EEA member countries.
(476) In any event, the finding that the positions of the main players on the market in control and signalling units vary considerably from one Member State to another is not challenged by the parties(165).
Control and signalling units are distributed largely on a national basis
(477) The parties explained that the manufacturers sold their control and signalling units to the usual electrical equipment wholesalers and direct to mechanical engineering companies(166). They failed, however, to provide any information on the breakdown of manufacturers' sales between the two outlets.
(478) According to an internal Legrand document, however, whilst Baco achieves [40-50]* % of its sales of control and signalling units through wholesalers, such sales account for all of Legrand's turnover in those products(167). It can be seen from a Schneider document that Mafelec generates most of its turnover through direct sales whereas [60-70]* % of non-Mafelec Schneider products are sold via wholesalers(168). It should be pointed out here that Schneider has an EEA market share of around [20-30]* % and as such is the foremost player on that market. It can therefore be concluded that sales to wholesalers account for a large share of the market in control and signalling units, a share that can be estimated at around [50-60]* % according to the manufacturers concerned.
(479) As already stated, the commercial relationships between wholesalers of electrical equipment and manufacturers is organised on a national or even regional basis, even in the case of manufacturers and wholesalers operating at European level. This finding is also true of control and signalling units. As a result, a substantial proportion of the distribution of these products is organised on a national basis.
(480) In their reply to the statement of objections(169), the parties argued that, given the scale of direct sales by manufacturers to end customers, notably manufacturers of industrial machinery, the fact that distribution was organised on a national basis did not suffice to establish that the relevant product market was national in extent.
(481) The fact that half the sales of control and signalling units in the EEA are achieved through wholesalers and that the relationships between wholesalers and manufacturers are organised on a national basis nevertheless constitutes an important piece of evidence in favour of defining the relevant product market as national. This situation explains, at least partly, the above price differentials and variations in market share.
Barriers to entry
(482) In their reply to the statement of objections(170), the parties put forward numerous arguments aimed at demonstrating that there were no barriers to entering the market in control and signalling units. In the main, they stress product standardisation, the harmonisation of product standards within the EEA, the absence of national quality labels and national installation or usage habits, the fact that the main manufacturers organise production at European level, the low level of transport costs, the generalisation of the 22 mm punchout diameter, and the existence of several brands that are used worldwide.
(483) First, the existence of substantial price differentials between Member States and the unevenness of the players' market shares as noted above are two decisive factors which, from a factual standpoint, refute or at least severely limit the validity of the parties' claim that barriers to entering the market in control and signalling units are not significant.
(484) The Commission's investigation has thus revealed that there are three types of barriers to entry to the market in control and signalling units. Access to distribution channels constitutes an initial barrier to entry, since around half the sales of these products in the EEA are made via wholesalers. Wholesalers' tendency to reduce the number of brands they distribute for each category of electrical equipment, as revealed by the Commission's investigation, also tends to increase barriers to entry. Significantly, access to distribution channels is repeatedly presented in a Legrand internal document(171) as one of the key factors in achieving success on the market.
(485) A second major barrier to entry is formed by the need for a thorough knowledge of the other marketing channel for the products concerned, namely direct sales to manufacturers of industrial machinery, or original equipment manufacturers (OEMs). A Legrand internal document(172) thus states several times that a thorough knowledge of "OEM markets" is one of the key factors for success. The OEM market is made up of a large number of SMEs, as demonstrated by the list of the parties' main customers(173), so that heavy investments need to be made in order to penetrate it. This fact is moreover recognised by the parties(174), who state that, given the low value of the products, manufacturers are active only in those geographical areas where their presence requires little commercial effort. This trend is furthermore exacerbated by the small size of many manufacturers: in Germany, for example, the eight leading players, and the only ones identified by the parties, hold an aggregate market share of [50-60]* %; in Finland, the seven leading players, and the only ones identified by the parties, hold an aggregate share of [50-60]* % of the market.
(486) A third barrier to entry derives from the fact that a large proportion of control and signalling units are not standard products but specific items made according to specifications drawn up by manufacturers of industrial machinery. The parties state that for these specific items a "close relationship between producer and user" needs to be established for design, development and production(175). The parties have also added that this close relationship does not necessarily involve geographic proximity. The fact remains that the sale of specific control and signalling units also requires investments in establishing this close relationship and that such investments constitute a barrier to entry, particularly for the smallest manufacturers.
(487) The Commission therefore concludes that the relevant geographic market for the sale of control and signalling units is national.
C. ANALYSIS OF THE TRANSACTION
C.1 MARKETS IN ELECTRICAL SWITCHBOARDS
C.1.1 Principal characteristics of competition in the relevant markets
(488) The following diagram, taken from a report by Crédit Suisse First Boston(176), summarises the characteristics of competition in the relevant markets. The following paragraphs expand on the main reasons behind this description of the way the market operates. The analysis applies mutatis mutandis to the other product markets affected by the notified transaction, subject to specific considerations which will be pointed out in the sections on the products in question.
Customer loyalty
(489) As summed up in the Crédit Suisse First Boston report(177), "electricians are extremely loyal to a brand. They generally work for several years with the same supplier and the same brand, and sometimes stay with the same supplier for their entire career. There are two reasons for this. First, there is an element of familiarity: once they are used to a product (brand, ease of installation), it is very difficult to get them to change, even if they are offered lower prices. Second, an inappropriate choice of equipment could render them liable (once they trust the safety of products they usually buy, they are not inclined to try cheaper brands)."
(490) Legrand also states that "the familiarity and trust which electricians and project managers have in relation to Legrand products is a key factor in maintaining and improving the company's competitive position. [...]* Repeated use of Legrand products by electricians and project managers strengthens Legrand's position and represents an important competitive advantage(178)."
(491) The investigation carried out by the Commission and the data provided by the parties confirm that installers and panel builders show a clear loyalty to their habitual brand. However, the Commission's investigation also shows that this loyalty is not absolute. It is apparent that, for installers and panel builders, the safety and immediate availability of products are imperative requirements, which take precedence over the brand in their choice of equipment. This means that, as long as a brand guarantees satisfactory quality and availability, it will continue to enjoy the strong loyalty of its habitual customers. It would therefore not be easy for competitors to win over these customers, even by offering them superior products and/or lower prices. However, if a brand ceased to meet the essential requirements of installers and panel builders, or if it no longer compared favourably with its competitors, it could rapidly lose the trust of its traditional installers and panel builders, and it would be difficult to win them back.
(492) The Commission's investigation also shows that the main manufacturers are trying to cultivate and strengthen this loyalty, often by keeping close commercial contact, for example by offering tools (computer software in particular) for designing and costing the electrical installation using the products they manufacture, by facilitating the assembly of their products, by providing training sessions for installers, etc. These commercial and customer relations investments in fact often account for a significant share of the turnover of brands, sometimes as high as [10-30]* % of national sales.
(493) In their reply to the statement of objections, the parties argue that the Commission overestimates brand loyalty, chiefly in the switchboards sector. They claim in particular that the Commission attributes to those markets features which are more characteristic of installation accessories and concludes that brand loyalty is "almost absolute", whereas such loyalty exists, in their view, only to a small extent. The parties maintain, on the basis of the findings of the study carried out by the consultancy NERA, that brand loyalty is relatively weak.
(494) The Commission denies that it found loyalty to be "almost absolute". It is precisely the relative nature of loyalty and the need to maintain it that justify the considerable customer relations efforts made by the manufacturers and highlighted by the Commission in the statement of objections. In short, the Commission maintains that brand loyalty increases the cost of winning over new customers and therefore constitutes a significant barrier to entry. It also raises customers' tolerance of slightly lower performance or slightly higher prices than the average offered by the other players and therefore holds back the expansion or decline of established brands in a given market. But, given the relative nature of loyalty as stressed by the parties, it does not allow an established player to hold on to its positions beyond the point where its products' technical performance and price characteristics lag too far behind those of the other brands present on the market.
(495) The parties' view that brand loyalty is weak is contradicted by the Commission's investigation, which demonstrates that there is significant brand loyalty, including in the switchboards sector. Such loyalty furthermore corresponds to the opinion repeatedly expressed by the parties, initially in Form CO ("installers are in general loyal to a brand and purchase the complete kit from a single manufacturer, for reasons of ease of assembly of the board, the matching in appearance of the products, the functioning of the apparatus and confidence in the technical quality of a manufacturer"(179)) and later in their replies to subsequent questionnaires ("Schneider and Legrand sell [final panelboards]* to electrical installers via wholesalers. Installers are generally loyal to the brand which they are in the habit of using"(180)).
(496) The Commission also takes the view that, compared with the outcome of the investigation, the findings of the NERA study are insufficient to call into question the existence of significant brand loyalty: NERA relies on the existence of considerable promotional efforts in order to demonstrate that there is strong price competition between manufacturers.
(497) The Commission notes, however, that the discounts offered by manufacturers are often substantial (between [10 and 30]* %). This suggests that the cost of winning over new customers (and therefore loyalty) is likewise substantial.
(498) Neither does the study carried out by NERA enable brand loyalty to be evaluated since, although it points to strong growth in sales of the items concerned during special offers, it does not show to what extent such increased sales have been won over from other manufacturers. Growth in sales of items on special offer could thus be explained simply by a process of stockpiling on the part of wholesalers (or installers loyal to the brand purchasing the products cheaply for use at a later stage) or by the switching of purchases from other models produced by the same manufacturer (the extra sales of the item on special offer being achieved at the expense of sales of other comparable items not promoted). These two explanations are in fact largely suggested by the figures used by NERA: [...]*. This would therefore indicate the existence of very strong brand loyalty.
(499) To sum up, the Commission therefore maintains that, in line with the outcome of the investigation, there is significant brand loyalty for the switchboards concerned by its objections. It stresses that, in any event, the degree of loyalty has no repercussions on the analysis of dominant positions: as mentioned earlier, the only effect of loyalty is to raise the cost of winning over new customers and to slow the decline of a less competitive brand. However, as will be explained later, the reasons why the transaction would create a dominant position have to do among other things with the fact that the merged entity would become an indispensable supplier and would be able to strengthen its existing positions and weaken its competitors by redeploying its brands and through its privileged relations with wholesalers. A lower level of loyalty would lessen the ability of competitors to withstand competition from the merged entity in the long run and would therefore be liable to speed up or exacerbate the effects of the transaction.
Importance of brands
(500) The above remarks explain two other major characteristics of the sector: the importance of brands and the search for product ranges which are as wide as possible.
(501) The main manufacturers sell their products under one or more brands, depending on the country and the type of equipment concerned. The parties thus each have a total of over a dozen brands, covering different product areas and with different geographic scope. These brands are shown in Annex 2.
(502) The outcome of the Commission's investigation shows that brands are one of the main factors in competition among manufacturers. As the parties recognise(181), the brand is something of a guarantee for all the rest. This may be explained by the criteria on which small and medium-sized specifiers, installers and panel builders base their choices. It is the brands which serve as a vehicle for the relationship between manufacturers and their customers, because it is the brands which assure customers that each product will provide the guarantees (of safety, ease of placing, etc.) they are accustomed to find.
(503) The relative attractiveness of brands is the result of commercial groundwork and promotional and customer relations investment and R& D work carried out by manufacturers vis-à-vis installers. The importance of brands can therefore also be seen in the amount of this expenditure, which can represent up to [10-30]* % of annual sales for commercial investment and up to [0-20]* % of annual sales for R& D. As the internal documents of the parties confirm, this probably explains the proliferation and the maintenance of brands held by the parties, since the removal of a trade name could destroy the relationship of trust established with installers and lose the advantage of past customer relations investment.
(504) The importance attached to brands can obviously vary from one sector to another and from one manufacturer to another. Their role is thus much more marked for equipment chosen by small and medium-sized installers and panel builders (i.e. for distribution boards, final panelboards or electrical equipment downstream of final panelboards), who are generally loyal to one brand, than for other equipment (in particular main switchboards) specified by project managers and supplied by large panel builders. In the same way, manufacturers will also invest more or less in their brands depending on the type of equipment sold and on their positioning (focusing on residential or commercial applications, or else oriented towards industrial projects).
(505) This being so, the outcome of the Commission's investigation shows that the brand is still one of the main factors in the choices made by installers. It should also be noted that the importance of brands constitutes a significant barrier to entry or to diversification, because installers usually choose only the products of the most well-known and widely distributed brands, and therefore avoid the products of manufacturers they do not know. As Legrand states(182), "manufacturers who do not have sufficient reputation to supply a wide range of quality products in the long term face significant disadvantages, because of the reluctance on the part of electricians and contractors to try out new products of unknown reliability".
(506) This lack of demand would also penalise new entrants in their relations with wholesalers, who would tend not to list new products. Some manufacturers, such as Moeller(183), have thus indicated that access to wholesalers would not be possible without a recognised brand. The reluctance of wholesalers to stock little-known products further exacerbates the difficulties of new entrants, as it reduces the availability of their products and therefore their appeal to installers.
(507) The Commission's investigation also shows that the extent of the range of products offered by a manufacturer constitutes another important factor for success. This is also confirmed by the parties, who say that (i) in order to be credible in distribution boards and final panelboards, it is necessary to offer the full range of parts (cabinets, fuses, circuit breakers, earth leakage protection and control devices, etc.) for the boards, and (ii) in installation accessories, manufacturers must have complete product ranges. The large manufacturers (such as Schneider, Legrand, ABB, Siemens and GE) thus each offer over 2000 product listings for components for distribution boards and over 5000 listings for components of final panelboards. The product catalogues of large manufacturers of equipment downstream of final panelboards and related equipment also contain several thousand listings.
(508) The replies from competitors and wholesalers suggest that manufacturers are anxious to extend their product range for several reasons. Firstly, they are responding to the demands of wholesalers, who wish to reduce the number of suppliers, or at least favour manufacturers with a very large catalogue of products in order to optimise their costs. Secondly, an extended product range makes it possible to spread more widely manufacturers' costs on logistics (guaranteeing product availability and minimising delivery times), promotional or customer relations investment (training of installers, trade fairs, etc.), uniform appearance, R& D and so on.
(509) In the field of electrical switchboards, the absolute necessity of a complete range is also explained by the fact that, in order to be able to be adapted to each specific installation, the boards must satisfy a large number of configurations. Manufacturers must therefore offer a complete range of components (in terms of performance, type, etc.). Even more in the case of main switchboards and distribution boards, components offered by a given manufacturer cannot always be adapted or assembled easily on the boards of its competitors. Given the specific characteristics of each brand (in terms of performance, assembly techniques, size, etc.), it would be costly for panel builders and installers to invest (in training time, etc.) in manufacturers whose products do not allow them to meet all their requirements.
(510) In the same way as brands, this need for a wide product range also constitutes a barrier to entry and diversification for manufacturers, as they would have to supply their customers with a huge catalogue of products instantly.
Barriers to entry
(511) A new entrant to the relevant markets would have to start from scratch to create demand, gain access to wholesalers and resist the pressure of existing competitors.
(512) In addition to these obstacles, new entrants would have to face a number of specific barriers. First, it seems that a new entrant must offer a complete range of products if it is to hope to gain the trust of a few installers and panel builders, and even think of gaining access to wholesalers.
(513) In these circumstances, a new entry could only be made by a supplier who was already established in the country in question and wished to diversify in distribution boards or final panelboards, or by a foreign manufacturer with a complete range of components for distribution boards or final panelboards.
(514) The Commission's investigation also shows that the first possibility is not viable. For example, the data provided by the parties show that in order to produce miniature circuit breakers or moulded case circuit breakers competitively, an investment of the order of EUR [20-50]* million and a lead time of [one to five]* years would be necessary. The difficulties seem to be even greater in distribution boards, because of their more technical nature. Schneider says that the preparation of its latest moulded case circuit breaker cost around EUR [400 - 1200]* million in research and industrial groundwork expenses. Even supposing that the potential entrant already had activities in neighbouring markets (for example if it were active in distribution boards and intended to branch into final panelboards), it would have to carry out investment to adapt or extend production tools and would not really be ready to enter for some years.
(515) The Commission's investigation confirms that the entry of a foreign supplier is not conceivable. In this case, the barriers to entry are not so much on the production side as on the demand side. As explained above, the difficulty for the new entrant would be to create demand in the country and to obtain sufficient access to wholesalers. In practice, according to the parties, a new entrant usually begins by selling direct to panel builders in order to create demand which enables it then to offer its products to wholesalers, who gradually take them on. This pattern means that such a way of entering the market could not work for final panelboards, as these products are basically chosen by installers loyal to their existing brand, requiring immediate availability of products (and therefore prior access to wholesalers). This shows that, even in final panelboards, a potential new entrant would not be in a position to exercise significant competitive pressure for many years.
(516) In their reply to the statement of objections, the parties quote the recent entry of Gewiss into the final panelboards market as a counterexample with a view to refuting the above analysis. The Commission considers that that example does not call into question the scale of barriers to entry: for one thing, Gewiss expanded thanks to its already well established positions in installation accessories in Italy. Starting from an existing customer base, and already having an extensive network of relations with wholesalers, it therefore did not have to overcome the bulk of the abovedescribed barriers to entry and had the best imaginable assets for entering the electrical switchboards market. It was also able to free itself from design and production constraints by sourcing certain components (notably circuit breakers) from ABB. But despite this privileged position, Gewiss has not accounted for more than [0-10]* % of sales of miniature circuit breakers for distribution boards or final panelboards in Italy. This example therefore confirms that, even for well established competitors, it is impossible to exert substantial competitive pressure until many years have passed. The scale of the difficulties awaiting an entrant in a less favourable position can be inferred from this.
Poor price sensitivity of demand
(517) As stated in the Crédit Suisse First Boston report(184), and as the internal documents of the parties bear out(185), the demand for electrical equipment depends mainly on construction or renovation projects in industry, the commercial sector and the residential sector. The decision to launch such projects is not influenced by the price of electrical equipment. For one thing, electrical installations often only account for a moderate share of the overall cost of the project (given the costs of masonry, painting, plumbing, etc.). For another thing, electrical equipment often represents only 20 % of the total costs of the installation (the remaining 80 % being mainly labour costs). An overall increase in the price of electrical equipment would therefore have little or no effect on the demand for such equipment.
(518) In their reply to the statement of objections, the parties challenge the finding that the price sensitivity of demand is poor. They base their argument on the findings of the study carried out by NERA, which show that the launch of a special offer on a given item leads to an increase in sales of that item (at least for the duration of the special offer).
(519) The Commission cannot endorse that analysis. It notes, in the first place, that the parties are confusing market elasticity (which describes the extent to which a hypothetical monopolist could profitably raise prices) with cross-elasticity between manufacturers (which describes the extent to which an individual manufacturer is subject to competitive pressure from another individual manufacturer). These two elasticities measure different types of competitive pressure: total market elasticity reflects the competitive pressure exerted on all the products in the market by products outside the market, whereas cross-elasticity measures the pressure exerted on a product in the market by another product in the same market. To take an example, the market elasticity of circuit breakers measures the share of circuit breakers that would no longer be bought if their price were to rise by 1 %. On the other hand, the cross-elasticity between manufacturers A and B measures the share of sales that would be lost by A if the price of B's circuit breakers were to fall by 1 %. In markets where products are differentiated, as is the case here, it is quite possible for total elasticity to differ widely from cross-elasticity between manufacturers. The parties' arguments concerning substantial cross-elasticity therefore in no way affect the Commission's analysis concerning the total elasticity of the market.
(520) Neither can the Commission agree with the conclusions drawn by the parties from the NERA study. As indicated earlier, the fact that special offers lead to a temporary increase in sales of the items concerned does not prove that such sales are won over from competitors. As stated in points 496 and 497 above, other explanations are possible and even likely, such as a process of stockpiling or the switching of purchases from other models produced by the same manufacturer. The data produced by NERA do not therefore enable cross-elasticity between manufacturers to be estimated.
C.1.2 As a result of the merger Schneider and Legrand would become a key player in the relevant markets
Market shares indicating dominance
Method
(521) The parties maintain that the transaction would not lead to the creation or strengthening of a dominant position in the markets linked to distribution boards and final panelboards. In particular, according to the parties, the share of sales of the new entity would not be more than [15-35]* % at Community level and a maximum of [35-55]* % at national level (in France).
(522) However, the Commission considers that the method for calculating market shares put forward by the parties leads to significant underestimation of the real positions of the manufacturers in the relevant markets.
(523) In fact, the parties have calculated the manufacturers' market shares by dividing the amount of sales by manufacturers to their direct customers (basically wholesalers and panel builders) by the total volume of corresponding products purchased by electrical installers (i.e. the customers of wholesalers and panel builders). The denominator is therefore not consistent with the numerator, as it includes the added value attributable to panel builders and wholesalers, as well as the amount corresponding to miscellaneous board components which are not normally supplied by manufacturers but incorporated by panel builders. As these contributions can be significant ([10-30]* % for wholesalers, [10-30]* % for panel builders and [10-30]* % for miscellaneous components), they lead to a considerable underestimation of manufacturers' market share and must therefore be eliminated from the total value of the market. This method would lead to the absurd result that a hypothetical monopolist in the production of a key component (for example miniature circuit breakers) would not have a 100 % market share but would "share" its market share with its customers.
(524) At the request of the Commission, the parties have therefore provided corrected estimates of market shares disregarding the added value and margins of the downstream players (wholesalers and panel builders), and the amount corresponding to components not supplied by the manufacturers.
(525) The parties have also suggested including sales by certain vertically integrated manufacturers (ABB and Siemens) as installers or panel builders for the purpose of calculating the overall volume of the market. The Commission does not agree with this view and considers that, on the contrary, such sales should not be included either in the calculation of the size of the overall market or in the market shares of the players in question. First of all, these figures are not consistent with the other sales and therefore reproduce the bias introduced by the parties in their initial calculations. The internal sales of the firms in question should have been used. Also, even supposing that the parties had correctly counted the internal sales of the third parties in question, such sales correspond to products which have not been placed on the market and for which there was no competition. As internal sales are not subject to real market conditions, they have no impact on the market power of manufacturers in the "free" market. The inclusion of these sales would therefore not reflect the market power of manufacturers and would lead to an underestimation of the market power which producers can effectively exercise vis-à-vis their direct customers.
(526) The Commission has also tried to verify the volume of internal sales attributed by the parties to ABB and Siemens in their estimate of market shares. According to the parties these integrated sales stand at approximately EUR [400-1200]* million for each of these firms. These figures should not be included in the calculation of market shares simply as they stand, as they represent, according to the parties, turnovers resulting from sales at the level of installers. Labour costs (around 80 %), the panel builder's added value (15 % of the remainder) and distributors' margin (20 % of the remainder) should therefore be deducted if a consistent value is to be included in the calculations of market shares. Thus the figures for internal sales provided by the firms in question are very much lower and would not significantly alter the market shares calculated net of internal sales and as presented below.
(527) During the hearing, a representative of Siemens stated that that firm's internal sales accounted for less than 5 % of its turnover in electrical switchboards. Confidential data on internal sales supplied by other third parties in the course of the Commission's investigation are also consistent with a figure of 5 %. Likewise, the estimate given by the parties of the turnover generated by their competitors' integrated sales, namely EUR [400-1200]* million, corresponds to around EUR [50-100]* million in terms of internal sales (having deducted labour costs, the panel builder's added value and distributors' margins). The parties estimate the size of the markets in distribution boards and final panelboards in Europe (not including panel builders' added value and distributors' margins) at around EUR [2000-4000]* million. The proportion of internal sales as a share of market size estimated by the parties is thus around [0-10]* %, which is consistent with the estimate given by Siemens.
(528) The findings in terms of market shares are not affected if these internal sales are taken into account. If the very generous assumption were made that only Schneider and Legrand did not make any internal sales and the other market players generated [0-10]* % of their sales within their own group, and incorporating these internal sales in the overall volume of the market, the combined market share of the merged entity in each of the relevant markets would thus be not more than 3 points lower. This would only marginally affect the high level of those market shares and would not materially alter the relative size of the merged entity in comparison with its competitors.
(529) In the light of the above, the Commission considers that the market shares should be calculated solely on the basis of the external sales of the parties and of their competitors to their direct customers. The volume of the market (and the corresponding sales of the players in the market) must therefore not include either the internal sales of vertically integrated manufacturers or the added value or margin corresponding to the operations (integration of board, wholesalers' services) carried out downstream of the manufacturers. Market shares quoted in the rest of this Decision are calculated on this basis.
Distribution boards
(530) For distribution boards and their components (moulded case circuit breakers, miniature circuit breakers and cabinet components), the transaction would create an addition of market shares only in France, Italy and Norway, the only countries in which Legrand is active.
(531) Table 27 below gives the parties' estimates on the basis of sales of moulded case circuit breakers, miniature circuit breakers and cabinets.
Table 27
TABLE
Source:
e-mail sent by the parties on 25 July 2001.
(532) These figures are consistent with, although generally lower than, the market shares of the parties estimated on the basis of a market whose size is calculated from the sales of third parties identified by the parties as active in the market and provided in response to the Commission's investigation.
(533) These market share estimates show that the notified transaction would give the combined entity a very strong position in the French and Italian markets in moulded case circuit breakers, miniature circuit breakers and distribution board cabinets, with around [70-80]* % and [40-50]* % of the markets in those countries respectively. Apart from the competitors listed in Table 27, the combined entity would face dispersed competition from panel builders. The combined entity would also have a leading position at European level with market shares for moulded case and miniature circuit breakers of slightly under [40-50]* %.
Final panelboards
(534) The transaction would create an addition of market shares in all the Member States. However, the transaction would raise competition problems only in five countries (France, Italy, Denmark, Spain and Portugal). The market shares of the parties and their competitors in these countries (and at Community level) may be summarised as follows:
Table 28
TABLE
Source:
estimates by the parties.
(535) These figures are consistent with, although generally lower than, the market shares of the parties estimated on the basis of a market whose size is calculated from the sales of third parties identified by the parties as active in the market and provided in response to the Commission's investigation.
(536) This means that the notified transaction would lead to the creation of very strong positions in the markets in miniature circuit breakers, earth leakage switches and enclosures for final panelboards in Portugal and Denmark and would strengthen the already leading positions of Schneider in Spain and France and Legrand in Italy.
Mains connection circuit breakers
(537) As stated earlier, mains connection circuit breakers are used for specific requirements (basically measurement of consumption and prevention of theft of electricity) and are required only in certain countries. In practice, the transaction would lead to an addition of market shares only in France and Portugal for this type of component. These additions are shown in Table 29 below. The shares attributed to Schlumberger are allocated to the combined entity as the products sold by Schlumberger are manufactured by Serd, a company controlled by Legrand, in which Schlumberger has a minority shareholding of [30-40]* %. Also, the products sold by Hager in France seem to be bought by Hager from Schneider(186).
Table 29
TABLE
Source:
estimates by the parties.
Analysis in terms of "solutions"
(538) As stated earlier, an analysis in terms of all the components necessary for a particular type of switchboard, i.e. in terms of "solutions" as described by the parties, does not significantly alter the findings reached in terms of each component. In terms of solutions, the market shares of the parties and their competitors may be summarised as follows:
Table of market shares for solutions
TABLE
Source:
the parties.
(539) In the case of final panelboards, the market shares for solutions are equivalent to those for components; in the case of distribution boards, the market shares for solutions are slightly smaller than those for components. It should, however, be borne in mind that for distribution boards, the above estimates underestimate the merged entity's real market share: these figures, which were provided by the parties, are calculated on the basis of aggregates containing components which are not normally produced by manufacturers of low-voltage electrical equipment. These components represent [20-30]* % of the value (before added value) of a board. Once this distorting factor is removed, the market shares in terms of switchboards are consistent with those calculated for the above components.
An unrivalled position of strength
(540) The Schneider/Legrand combined entity would acquire an unrivalled position of strength via the notified transaction in terms of relative size on the relevant markets, the removal of an incentive to competition through the loss of the rivalry between Schneider and Legrand in certain markets and the emergence of leaderships in other markets, and also in terms of the range of products, geographic cover and the number of brands it would have.
(541) The merged entity would also inherit all the competitive advantages of its parent companies, in particular the reputation of their brands, the depth of their product ranges and the quality of their relations with national installers and wholesalers. All these factors would serve to reinforce further the loyalty of installers and panel builders, making the merged entity indispensable to them in these markets, and would constitute obstacles to the development of competing brands and to the entry of new manufacturers.
An entity of unrivalled size
(542) The data provided by the parties show that the combined entity would hold a very strong position in absolute terms and relative to the size of its most direct competitors. In the markets in circuit breakers for distribution boards, the market share of the merged entity would be seven times that of its closest rival, GE, in France. In Italy, its market share would be almost twice that of the second largest manufacturer there, ABB. In the markets for components for final panelboards, the combined entity would be around twice as large as the second largest manufacturer in Portugal and Denmark, three times as large in France and in Italy, and four times as large in Spain.
(543) The market share tables above also show that, very often, one or other of the parties already holds very significant positions prior to the transaction. Legrand is thus the undisputed market leader for final panelboards in Italy, while Schneider clearly ranks number one in Spain (both for distribution boards and final panelboards) and in France. This situation is even more marked in the case of final panelboards in France, where Schneider and Legrand are respectively number one and number two (equal with Hager) in terms of volume of sales.
(544) This means that, despite the significant overlaps between Schneider and Legrand, the transaction should not be seen as a merger between two players of medium size suddenly acquiring first place in their sector, but rather as the substantial strengthening of the existing market leader (via the acquisition of additional brands and businesses) and the removal of an immediate competitor.
Loss of rivalry between Schneider and Legrand and emergence of an indisputable leader in the relevant markets
(545) Prior to the transaction, one or other of the parties is already the competition reference in the relevant markets. This is especially the case for Schneider in Denmark, Spain, Portugal and France (for distribution boards, final panelboards and their components) and for Legrand in Italy. It also seems that the weaker party also holds significant positions in these markets, that it enjoys a good reputation and has privileged access to the main international wholesalers. This is, for example, the case for Legrand in France, where it holds very significant positions in markets for other low-voltage products. This Decision thus finds that Legrand already has dominant positions on the markets in sockets and switches, weatherproof wiring accessories, fixing and connecting equipment and self-contained emergency lighting units. The support given to Legrand's electrical switchboard business by its positions on these markets has enabled it to gain access to distributors and brand recognition more easily. Conversely, Legrand notes in its Medium-term plan for France that [...]*
(546) The transaction would further reinforce these positions. It is thus clear that by combining the activities of the two parties, the transaction would enable the merged entity further to intensify its hold on the market and increase its lead over its closest competitors. The merger of Schneider and Legrand would also remove the rivalry between the two firms, which seems to be a central element of competition in the countries concerned.
(547) For example, in France, the competition between Schneider and Legrand seems to be particularly keen in distribution boards and final panelboards, since, according to internal Legrand documents(187), Schneider (traditionally oriented towards the commercial sector and industry) is aiming to capture the residential segment and to oust Legrand from its premier position. Schneider and Legrand being the two main suppliers of distribution boards and final panelboards in France, the intensity of the competition between the two rivals to a large extent dictates the intensity of competition in all of these markets, all the more so because Legrand enjoys brand recognition and privileged access to distributors in France thanks to its positions on the wiring accessories markets. For example, Legrand describes the fact that it has a "high profile among installers via other products" as an "anchor point"(188). The Commission's investigation shows similar effects in Portugal: Legrand documents show [...]*.
(548) At the same time, the transaction would enable the merged entity to gain a position as indisputable leader in the markets in final panelboard components in Portugal and Denmark, where the parties face considerable competition (in terms of market shares) from other firms.
(549) Finally, the notified transaction would strengthen the already leading position of one or other of the firms in the markets in distribution board components in France and Italy and in the markets in final panelboard components in Spain, France and Italy.
The combined entity would have an unrivalled range of products and geographical cover
(550) Even prior to the proposed transaction, the parties each have a very wide range of products in the low-voltage electrical equipment sector. In most cases they hold very appreciable positions for some of these products and in certain geographical areas. Thus the notified transaction would enable the parties to combine the strong positions of Schneider in the Nordic countries as regards electrical equipment downstream of final panelboards with those of Legrand in southern Europe. In the same way, Schneider would bring its strong position in all categories of electrical switchboards and add it to the strong position of Legrand in all downstream products.
(551) Following the notified transaction, there would be only two EEA countries (Germany and Finland) in which the combined entity would not occupy leading positions. More generally, it should also be pointed out that Schneider claims to rank second in the world for low-voltage electrical equipment, while Legrand presents itself as the world leader in electrical accessories. The following table illustrates the strength of the combined entity in all the markets in low-voltage electrical equipment.
Table 30
TABLE
Key:
one star (*) represents a share of sales between 10 and 20 % and so on up to five stars (*****), which represent sales shares of over 50 %.
Sources:
market shares provided by the parties for 1999 in Form CO and subsequently.
(552) The parties would acquire a very strong position on all French markets, with shares of sales in excess of [40-60]* % on all markets except cable trays and trunking (where their share would nevertheless exceed [40-60]* %). None of Schneider/Legrand's competitors would have such a range of products and such a geographic spread with strong positions on the relevant markets. Only ABB would be capable of presenting a comparable product range and geographic cover.
(553) Of the other manufacturers, only Siemens and Hager are present on more than one product and geographic market in the EEA. All the other competitors are either local players or niche players, usually in the markets in electrical equipment downstream of final panelboards.
The combined entity would have an unrivalled array of brands
(554) The strength of either or both of the parties in each market is usually explained by the power of its brands. As the parties state(189), "we have a range of superb and diverse brands. Furthermore, our two groups have shown real skill in managing several brands, always with a view to staying close to the market, and are therefore used to capitalising strongly on those brands."
(555) There is no doubt as to the quality of the brand image of Schneider and Legrand. In Italy, where the Legrand and particularly Bticino brands are used, Legrand(190) refers to "the image of the Bticino brand", "the synergetic use of the Legrand and Bticino brands" and "the image of the brand and [the] trust in the company and in the product" as three of its main strengths. In Spain, Schneider(191) says that its Eunea Merlin Gerin brand is already "a major player" in the market, and that it could be further consolidated via "the brand image, backed by Schneider". In France, Legrand says that one of its main strengths is its "reputation". The parties' reputation and brand image are clearly further enhanced by their presence in most of the low-voltage electrical equipment sector as shown by Table 30 above.
(556) The parties' internal documents(192) show that the reputation of a brand alone can constitute a significant competitive advantage. This appears to be particularly true in Italy, where "the market is concentrated on the three leading brands (Bticino, ABB and Merlin Gerin)", and in France, where "customers have to be reassured by the brand".
(557) The Commission's investigation also shows, however, that the strength of the Schneider and Legrand brands rests also on their ability to satisfy the needs of installers and panel builders. The Commission asked wholesalers to rate manufacturers according to their ability to meet each of the following nine criteria, for each country: product quality, brand, price, speed of delivery, design and appearance, ease of installation, advanced technology, complete range of products and, lastly, technical support. The outcome of this survey was that, with rare exceptions, Schneider was generally among the three best suppliers for each criterion; and that in France and Italy, Schneider and Legrand usually enjoyed the two best reputations for all the criteria.
(558) As explained above, the relevant markets are distinguished by strong loyalty on the part of installers and panel builders. The strong competitive positions of the parties, together with their ability to meet their customers' needs efficiently, therefore constitute particularly solid foundations.
(559) It is also clear, however, that the parties make significant investments each year in promoting products and in encouraging customer loyalty. The parties say that their sales force maintains contact with customers to help them choose products and that they maintain agency networks and a sales force in each country. The parties also offer a whole range of products and services tying them closer to installers. In the case of products, this includes design and costing software for electrical installations or technical guides; and, in the case of services, training sessions (Legrand), telephone assistance services, answers to technical questions, etc. As indicated above, such investment may amount to [10-30]* % of turnover.
(560) Furthermore, certain of the parties' internal documents suggest that they make considerably more effort in this direction than their competitors. Thus Legrand(193) says that in Italy, "Bticino is the company with the largest number of sales staff on the market." Likewise Schneider(194) states its ambition to "build an approach to each customer without parallel on the French market." In Spain, Schneider(195) refers to "coverage of the territory by the sales force" as one of its main competitive strengths, [...]*.
(561) The loyalty of installers and panel builders is reinforced by the extent of the range of products offered by the parties (in final distribution, installation accessories, etc.), and by their often important competitive positions in other products supplied by installers, as shown in Table 30 above. This further increases the frequency of use and the reputation of the parties' products, the familiarity of installers with these brands, and therefore the use of the electrical switchboards concerned. As Legrand states(196), [...]*.
(562) The proposed transaction would also allow the combined entity to exercise its market power even further by reinforcing and focusing its brands. This would increase the parties' indispensable nature in their relations with wholesalers. Also, by focusing brands on reference positions in each of the three applications segments of the relevant markets (industry, commercial and residential), the parties would be better able to isolate the effects of their actions on their competitors.
(563) First of all, the transaction would enable the combined entity to extend its negotiating power vis-à-vis wholesalers to all of its brands. Following the merger, the merged entity could thus decide to extend to Legrand the terms of the [...]* granted to [...]*. This would particularly strengthen Legrand in [...]*, which refers(197) to the limited distribution of its products, and their limited numbers with large wholesalers as among its main weaknesses in that country. Likewise, Legrand could gain better access to wholesalers in [...]*, where it seems that that was an obstacle to its development. Finally, Schneider could see its access to distribution in Italy strengthened thanks to the positions gained by Legrand in that country.
(564) The transaction would also enhance the reputation and image of the brands of both parties as they would each benefit from the promotional and customer relations efforts made by the other in these countries.
(565) The Commission's investigation also shows that, while Schneider and Legrand have traditionally engaged in keen competition on the relevant markets, they traditionally have distinct and complementary areas of excellence. Schneider thus seems to excel especially in commercial and industrial applications, while Legrand appears to be particularly established in the residential sector. Following the transaction, the merged entity would therefore have a reference brand in each of the three main applications for electrical switchboards. Along the lines of what Legrand achieved following the acquisition of Bticino, the merged entity could therefore decide to heighten the specialisation of each of its brands and to concentrate the efforts of each brand on its traditional area of excellence, in order to offer total cover of the spectrum of demand and at the same time provide optimal response to the needs of each customer category. By implementing this strategy, the merged entity could therefore at the same time strengthen the position of each brand and fill any gaps that each of the parties may have. The merged entity would thus be even more powerful than the two parties put together; it would increase its hold on the relevant markets and further restrict the ability of existing and potential competitors to compete with it.
C.1.3 Lack of significant demand-side constraint
(566) The parties often sell a large proportion of their products in the relevant markets through wholesalers, some of which are large international groups (Rexel, Sonepar and Hagemeyer). It is therefore necessary to assess whether wholesalers are able to exercise sufficient buyer power over the merged entity in order to constrain its competitive behaviour to any appreciable extent. For the reasons set out below, the Commission considers that they are not.
The merged entity would be an indispensable partner for wholesalers
(567) First, it notes that the merged entity would be an indispensable partner for most wholesalers. It is clear that (i) the merged entity would capture a very appreciable proportion of wholesalers' overall turnover (in some cases over [40-50]* % of national sales); (ii) the merged entity would offer an unrivalled array of electrical equipment, combining the ranges of the world's second-ranking manufacturer of low-voltage products and those of the world leader in electrical accessories; (iii) the merged entity would hold important competitive positions in almost every country (see Table 30 above). The indispensable nature of the merged entity would be particularly acute in France and, to a lesser extent, in Spain, Italy and Portugal.
(568) This is very clear, for example, from the [...]* that Schneider has already been able to arrange with its main wholesalers in [...]*, and the privileged relations that Legrand claims to have secured with the [...]* wholesalers in France and Italy.
(569) In its internal documents(198), Legrand states that [...]*. Legrand thus claims(199) to have "very good relations with distributors" in [...]*, and that it "maintains close relations with French distributors, some of which agree to keep certain priority Legrand products in stock at all times."
(570) This situation is even more marked for Schneider, [...]*(200).
(571) The situation is identical in [...]*, where Schneider draws up annual target letters with [...]*. The same is true in [...]*.
(572) There are several explanations for this pattern. First, as has already been pointed out, the parties are often indispensable players in certain markets, given the strong preference of installers and panel builders for their products.
(573) More generally, the Commission's investigation has established that the parties each account for a very significant proportion of the turnover of the main wholesalers. Table 31 below shows the percentage bracket of sales (all products) of the wholesaler Rexel accounted for by each of the large manufacturers. It is clear that, following the merger, the combined entity would account for nearly half of Rexel sales in France, reflecting the very strong complementary positions of each of the parties prior to the merger, and for a large proportion of Rexel sales in Italy and Portugal and also that in each of these countries the sales of its products would be proportionally far greater than those of its competitors. Schneider/Legrand in Spain would also be relatively larger than its competitors. The other large groups of wholesalers have provided the Commission with similar data.
Table 31
TABLE
Source:
Rexel, reply to phase II questionnaire.
(574) This is explained by the fact that the parties each offer a very wide range of low-voltage electrical equipment distributed by these wholesalers, and that they usually hold very appreciable positions for each of these products (see Table 30 above). Table 31 above illustrates the strength of the combined entity in all the low-voltage electrical equipment markets.
(575) The parties also enjoy other advantages vis-à-vis wholesalers. As indicated above, the Commission's investigation has shown that wholesalers now tend to favour manufacturers capable of supplying them with extensive product ranges. The parties therefore have a significant advantage in this respect. Wholesalers who chose to do so would even be able to offer their customers several different brands, in different price brackets, for many of those products. Also, wholesalers depend on the demand created by manufacturers and brands known to installers and end users. They are therefore obliged to keep in stock frequently requested products, which in practice are those marketed under well-known brands.
(576) It is also clear that these privileged relations are likewise the result of real effort on the part of Schneider and Legrand in relation to wholesalers. Legrand(201) says that it offers express delivery services to wholesalers in France, that it keeps its own emergency stocks of products with a low turnover and that it invests in new storage sites in order to improve its logistical performance vis-à-vis wholesalers. In its agreements with wholesalers, Schneider(202) [...]*. According to Schneider(203), these services enable wholesalers to meet a growing demand on the part of installers for other services (advice, technical support, etc.) in addition to a simple logistical service.
(577) The proposed merger would allow the creation or development of privileged relations maintained by the parties with their principal wholesalers, and it would also encourage the proliferation of partnership agreements similar to [...]*. [...]*, they would further reinforce the positions of the merged entity in all the markets affected by the transaction (and particularly the markets relating to distribution boards in France and in Italy and to final panelboards in Denmark, Spain, France, Italy and Portugal); conversely, they would further weaken the other manufacturers.
(578) In their reply to the statement of objections, the parties stress that, in the countries concerned, wholesalers currently distribute a large number of brands. Far from mitigating the impact of the transaction, this situation is liable on the contrary to reinforce the effects of the above process. The more the wholesalers with which the merged entity has secured privileged relations distribute competing brands, the more those competitors are liable to be weakened by less favourable treatment on the part of the wholesalers concerned.
Structure of competition at wholesaler level
(579) Secondly, the degree of concentration (see Table 6 above) among wholesalers, and therefore the buyer power of each individual wholesaler, varies significantly from one Member State to another. Concentration is particularly strong in France, and seems to be much weaker in Spain. It is therefore highly unlikely that Spanish wholesalers would each have sufficient buyer power to constrain the competitive behaviour of the merged entity to any appreciable extent.
(580) In their reply to the statement of objections, the parties challenge the finding that small wholesalers have no buyer power. They stress among other things that, in certain countries where the wholesale trade is fragmented (e.g. Spain and Portugal), there is strong price competition between wholesalers, resulting in pressure on prices offered by manufacturers.
(581) The Commission does not deny this fact, which it has itself repeatedly mentioned. That said, on the one hand, the parties also stress the increasing concentration of distributors in certain countries, in particular Portugal (where Rexel and Sonepar now account for 40 % of sales of switchboard components). This will probably dampen price competition between wholesalers, as has happened in countries where distribution is already more concentrated. On the other hand, and in any event, the existence of competition between wholesalers does not mean that each wholesaler has buyer power. On the contrary, the Commission maintains that, in countries where distribution is fragmented, each individual wholesaler is unable to withstand pressure from an indispensable supplier who occupies leading positions in a large number of products distributed. Buyer power is weakened still further by price competition between wholesalers, since such competition threatens the viability of those wholesalers and makes it even more vital for them to list the brands in greatest demand. The existence, despite the keen competition between wholesalers in Spain and Portugal, of partnership agreements between Schneider and those distributors already bears witness to this. Following the transaction, the merged entity would therefore be able to use its market power in order to impose the contractual conditions of its choice on any reluctant wholesalers by threatening to favour their competitors.
(582) Lastly, even a high level of concentration among wholesalers does not, however, mean any great downward pressure on prices. In fact, internal Legrand documents(204) show that, in some countries (such as [...]*), one of the reasons why wholesalers appreciate Legrand products is that, because of their relatively high price, they allow wholesalers a good profit margin. [...]*, simply the price level of Legrand products allows wholesalers to make a larger profit on each sale than they could from cheaper products. Internal Legrand documents(205) also show that, despite concentrated distribution in France, the prices paid by wholesalers are on average substantially higher than the European average (see also price indications in Tables 7 to 10 above); and that any downward pressure on prices does not stem from wholesalers but rather from the competition between Schneider and Legrand.
(583) This apparent indifference on the part of wholesalers as to price levels seems to be explained mainly by the lack of price elasticity in the demand for electrical equipment. As indicated above, the demand for electrical equipment depends mainly on factors external to the electrical equipment industry.
Contractual relations between Schneider/Legrand and wholesalers would help to maintain the position of the combined entity
(584) Commercial relations between manufacturers and wholesalers of the relevant products feature complex commercial discount schemes. Documents provided by the parties(206) show that there are three main categories of discount: (i) "partnership" discounts, (ii) "target" or "growth" discounts and (iii) "volume" discounts.
(585) Partnership discounts are granted by the manufacturers to wholesalers who distribute their products in exchange for various commercial and marketing services. Usually this means specific measures to promote sales of their products or marketing feedback on the position of their products. The parties' documents show that such "partnership" discounts can account for up to [0-30]* % of the pre-tax turnover made with wholesalers.
(586) "Growth" discounts are linked to targets for growth in the turnover made by manufacturers with wholesalers. The turnover used for these purposes may either be the overall turnover generated by the sale of all the products in the manufacturer's catalogue, or the turnover generated by the sale of certain specific product lines. A manufacturer will very often grant this type of discount on new products. For Schneider and Legrand it seems that these "target" discounts can account for up to [0-30]* % of the pre-tax turnover generated by the wholesaler.
(587) The final category of discount, known as "volume" discount, is calculated on the basis of the overall amount purchased by wholesalers from manufacturers. The base is therefore the turnover achieved by a manufacturer with a wholesaler not only through the sale of switchboard components but also other low-voltage electrical products, such as equipment downstream of the final panelboard. The amount of the discount, or reduction coefficient, is determined by the annual level of turnover. Usually, the contract between the wholesaler and the manufacturer sets turnover thresholds corresponding to a percentage discount. The higher the turnover, the higher the percentage discount, which boosts the final amount of the discount. These "volume" discounts represent up to [0-30]* % of the pre-tax turnover achieved by the manufacturer with a wholesaler.
(588) In addition to these discounts, manufacturers also grant wholesalers rebates on the resale price of their products. These rebates are particularly important as they can be up to [30-70]* % of the product resale price. While all wholesalers are given rebates, the amount varies according to the volume of turnover they achieve with each manufacturer.
(589) By their very nature, these different schemes favour manufacturers which have extensive product ranges and generate a large proportion of wholesalers' turnover. In fact, such manufacturers account for a large part of the purchases of wholesalers, who enjoy substantial discounts from manufacturers. The discounts, which can be up to [0-30]* % of the total amount of their purchases, represent a substantial proportion of their profit margin. Wholesalers are therefore naturally encouraged to concentrate their sales, and therefore their purchases, on the products of a few suppliers who account for a large part of their purchases.
(590) The proposed transaction would alter the relative balance that exists between manufacturers. It would lead to the creation of a group which, in many low-voltage electrical equipment markets, would be the main supplier to wholesalers, some way ahead of the second largest supplier. As explained above, this would be the case inter alia in France. This means that most wholesalers would be largely dependent on the new group as regards the overall amount of discounts and rebates they obtain from manufacturers, which determine a large proportion of their profit margin. Any fall in the turnover achieved with Schneider/Legrand products would thus lead to a fall in the level of discounts and rebates granted by the group, which would not be offset by an increase in the turnover achieved with other suppliers, since the percentage of the discount increases according to the level of turnover achieved.
(591) Wholesalers would therefore have an extra incentive to ensure that the level of their purchases from Schneider/Legrand remained at least the same. Furthermore, the complex schemes of discounts and rebates coupled with the significant weight of the new group in wholesalers' purchases would give Schneider/Legrand an important means of exerting pressure on wholesalers. In particular, Schneider/Legrand would be able to force wholesalers to distribute its new products or product ranges which they did not distribute previously. [...]*(207).
Conclusion
(592) As explained above, there are very large numbers of installers and panel builders in the countries concerned. Given its fragmented nature and its loyalty to brands, this section of demand does not appear to be in a position to exercise significant buyer power on the merged entity.
(593) Only wholesalers, and the largest of these, might possibly try to oppose any attempt on the part of Schneider/Legrand to increase prices. However, they would have little incentive to resist, principally for the following reasons:
(i) an increase in the selling prices of the new group would not lead to a drop in their profit margins. On the contrary, a price increase would lead to an increase in the turnover wholesalers would achieve with Schneider/Legrand, which in turn would lead to an increase in their volume discounts;
(ii) wholesalers would be largely dependent on the new group, which could to a great extent determine the amount of their profit margins via the discount and rebate schemes. Consequently, wholesalers would be taking a risk if they attempted to oppose a Schneider/Legrand price increase by shifting part of the demand towards other manufacturers;
(iii) any attempt by wholesalers to shift a proportion of the demand towards the products of other manufacturers would mean, at least in the short to medium term, an increase in their storage and transport costs. Installers attach great importance not only to the brand but also to the immediate or near-immediate availability of products. Wholesalers wishing to develop the sales of one of Schneider/Legrand's competitors would therefore have to begin by increasing stocks of the competitor's products, before being in a position to market them.
(594) In conclusion, it can be seen from the above that neither the parties' direct customers (wholesalers) nor their indirect customers (installers and panel builders) would be able to oppose any price increase imposed by the merged entity. For one thing, installers and panel builders are too fragmented to exercise significant buyer power over the merged entity. The same goes for Spanish, Danish and Portuguese wholesalers. For another, a price increase would not necessarily go against the interests of wholesalers, as high prices assure them a higher income at constant volume (and therefore constant cost). The merged entity would achieve such a level of power in the countries concerned (both because of its very strong competitive positions and because of the extent of its range of activity) that it would further reinforce its role as indispensable partner, which wholesalers would prefer to ally themselves with than to oppose.
C.1.4 Lack of significant competition-side constraint
(595) The outcome of the Commission's investigation shows that it would be difficult for existing competitors to exert any significant constraint on the behaviour of the merged entity.
(596) In the first place, the parties' internal documents show that even prior to the transaction, it would be difficult for existing competitors to challenge the pre-eminence of the brand leader in the relevant markets. Legrand(208) thus explains that, in distribution boards and final panelboards in France, [...]*.
(597) In distribution boards and final panelboards in Italy, Legrand(209) also explains that [...]*.
(598) Lastly, for final panelboards in Spain, Legrand also anticipated that [...]*.
(599) The constraints on competitors would increase with the notified concentration. They could first appear at the level of wholesalers. As just explained above, the transaction would allow the merged entity to reinforce its position as an indispensable and privileged partner of wholesalers in the countries in question. This situation would allow the merged entity to create or develop its alliances with wholesalers ([...]*). Since such alliances would [...]*, they would further enhance the perception of product availability and quality of service and, conversely, further check the development of other brands. This process would be particularly extensive because, as the parties point out, the wholesalers concerned currently distribute a large number of other brands.
(600) This pattern would further accentuate the existing imbalance between the merged entity and its principal competitors, and would compromise these manufacturer's attempts to expand. As wholesalers wish to reduce the number of brands they sell and favour manufacturers with extensive product ranges, this situation could even lead to the marginalisation of manufacturers in weak positions and/or with limited ranges (such as [...]* in Italy or [...]* in France and Spain).
(601) The second difficulty would arise at the level of installers and panel builders. For one thing, the Commission's investigations show that, in the countries concerned, what competitors have to offer (in terms of quality, brand, price, speed of delivery, etc.) is often already less well perceived than what the parties offer. Also, as explained above, this difference in reputation could increase after the merger as a result of the probable strengthening of each of the brands held by the merged entity and the growing difficulties of competitors with regard to distribution.
(602) This means that competitors would have increasing difficulty in prising customers away from Schneider and Legrand and could be content with the status of also-rans on the relevant markets. Conversely, the strengthening of the parties and the weakening of their competitors could help the merged entity to win over new customers. This could be the case if other manufacturers' products were no longer immediately available through the principal wholesalers (which would rule them out with installers, who do not keep stocks). Such a trend would be even more marked if, as the parties now maintain, customer loyalty were weaker than shown by the outcome of the investigation.
(603) The transaction could also lead to a reduction in the promotion and public relations measures carried out by manufacturers with installers and panel builders. The outcome of the investigation shows that such investment can represent an appreciable proportion (up to [10-20]* %) of the turnover of manufacturers in a given country for the products concerned. Also, these sums correspond to a large extent to ongoing activities or services (training of installers, technical assistance, etc.). The reports by various investment banks(210) indicate that, in the low-voltage electrical equipment sector, the profit margin of brands increases with their market share. The strengthening of Schneider and Legrand brands and conversely the probable weakening of their main competitors could therefore affect competitors' ability to keep up their marketing efforts effectively in the countries concerned, and so to preserve the quality of their links with installers and panel builders.
(604) It should be noted that each competitor usually relies only on one or two applications segments (residential, commercial and industrial) while, following the transaction, the merged entity would have full cover of these segments and a reference brand in each. If, as explained above, the merged entity decided to concentrate the efforts of each of its brands on specific areas of excellence, it would be able to take action specifically targeted against each of its competitors. The internal documents of the parties show that this strategy has already been used in the past. According to Legrand(211), Schneider, which holds very strong positions in miniature circuit breakers in Portugal, especially for industrial and commercial applications, [...]*.
(605) Furthermore, the fact that the combined entity would have a very wide range of products in each of the territories concerned (see Table 30 above) would give it the means to take targeted retaliation measures against its competitors, for example by using the policy of offering wholesalers appropriate rebates in order to weaken a competitor's product line.
(606) In the light of the above, it is clear that the transaction would, on the one hand, lead to the establishment of a group combining the strengths of each of the companies, freed from the competition between Schneider and Legrand; but, on the other hand, it would also lead to the strengthening of each of the parties in their traditional areas of excellence and allow the establishment of a group holding reference brands in each of the three applications categories (residential, commercial and industrial) for the relevant markets.
(607) It should also be noted that the integrated activities of the competitors of Schneider and Legrand would not be able to exert effective competitive pressure on the merged entity. As noted earlier, the integrated activities of those competitors are marginal in the countries concerned. Furthermore, in the absence of a substantial presence among wholesalers, they could not rely on their integrated sales alone in order to bring effective competition to bear.
(608) It follows from the above that the parties' existing competitors would not be able to exert enough pressure to constrain the behaviour of the merged entity. As has just been explained, this conclusion applies to the parties' principal competitors in the relevant markets, i.e. groups (such as ABB, Siemens or GE) with a complete range of products on the relevant markets. It also applies a fortiori to manufacturers with a more limited product range (such as Hager, J Müller or Geyer). These producers, often already marginalised, could even lose their access to wholesalers following implementation of the notified transaction.
(609) Lastly, as stated earlier, entry to the relevant markets seems to be all the more unlikely since any potential entrant would have first to tackle the formidable competitive strength of the parties. If, as indicated earlier, the parties' existing competitors were to end up weaker as a result of the transaction, there is no doubt that a new entrant would have considerable difficulty in gaining any toehold in the relevant markets. This conclusion is borne out by the history of the parties. As Schneider explains(212), [...]*. If a company as diversified and powerful as Schneider was unable, despite several attempts, to gain a significant position in a market which is less concentrated than the markets which concern us here, what would be the chances of a new entrant?
(610) In conclusion, as one manufacturer has said(213), "it is almost impossible to imagine developing a range comparable to the new entity in all the countries concerned. It would mean an investment for each country of the order of EUR 5 to 10 million and more than ten years of R& D work. The only partially credible response would be to acquire existing ranges already in the catalogues of accessible companies."
C.1.5 Conclusion regarding electrical switchboards
(611) It follows from the above that the notified merger would have a tangible impact on conditions of competition on the French and Italian markets for moulded-case circuit breakers, miniature circuit breakers and distribution board cabinets, on the French and Portuguese markets for mains connection circuit breakers and on the markets for miniature circuit breakers, earth leakage protection and enclosure components for final panelboards in Denmark, Spain, France, Italy and Portugal. It would also alter competitive conditions on the markets for distribution boards in France and Italy and the markets for final panelboards in Denmark, Spain, France, Italy and Portugal. It also follows from the above, and in particular its large market shares, the reputation of its brands and its privileged relations with wholesalers, that prior to the merger Schneider enjoyed a dominant position on all the French markets concerned, with the exception of the market in mains connection circuit breakers.
(612) The merger could have a particularly significant impact on prices for the equipment in question. As stated above, demand for this equipment is characterised by low elasticity. The creation of an indispensable supplier on the relevant markets, the weakening or marginalisation of the other competitors and the elimination of the rivalry between Schneider and Legrand (which was one of the main driving forces behind, if not the primary source of, competition on certain relevant markets, particularly in France) would therefore be reflected in very significant price increases for this equipment, both at the level of installers and panel builders and at final customer level. This conclusion is reinforced by the existence of significant price disparities between Member States and the high level of prices in the most concentrated markets.
(613) The Commission therefore concludes that the notified merger would lead to the creation of a dominant position on the Italian market for moulded-case circuit breakers, miniature circuit breakers and cabinets for distribution boards, on the French and Portuguese markets for mains connection circuit breakers and on the markets for miniature circuit breakers, earth leakage protection and enclosures for final panelboards in Denmark, Spain, Italy and Portugal. The transaction would also strengthen the dominant position held by Schneider on the French markets for moulded-case circuit breakers, miniature circuit breakers and cabinets for distribution boards and miniature circuit breakers, earth leakage protection and enclosures for final panelboards. The conclusions are identical as regards the markets for distribution boards in France and Italy and the markets for final panelboards in Denmark, Spain, France, Italy and Portugal.
C.2 CABLE TRAY MARKET
(614) The merged Schneider/Legrand entity would be the main player on the European cable tray market, with a market share of [10-20]* % (Schneider [0-10]* %, Legrand [10-20]* %). Its main competitor would be Hager, with an EEA-wide market share of [0-10]* %. Schneider/Legrand would be active in nine EEA countries, while Hager would be active in eleven. The proposed transaction would lead to an addition of market shares in only one national market, the United Kingdom.
C.2.1 The merged entity would have much larger market shares than its competitors on the United Kingdom market
(615) Table 32 below, which is based on data provided by the parties(214), shows the market shares of the main competitors on the United Kingdom cable tray market in 2000.
Table 32
TABLE
Source:
the parties.
(616) In their reply to the statement of objections(215), the parties claimed that the initial estimate of market shares they had supplied to the Commission was incorrect. They stated that their initial estimate included equipment for conveying electric power downstream of final panelboards which therefore belonged to a separate product market (trunking). Once that error had been corrected, the market shares of the main manufacturers present on the United Kingdom market were, according to the parties, as follows:
Table of United Kingdom cable tray market shares (according to the parties)
TABLE
Source:
the parties.
(617) The second estimate provided by the parties differs from the first one chiefly as regards Unitrust/Tyco, whose market share is [20-30]* % in the former as against only [0-10]* % in the latter.
(618) The checks carried out by the Commission have nevertheless clearly shown that the second estimate provided by the parties greatly overestimates the position of Unitrust/Tyco, which stands at [5-15]* %, very close to the parties' initial estimate.
(619) Neither does the parties' second estimate take account of the market share held by Schneider through the Wibe brand. It is clear from information supplied by the parties(216) that Wibe has a [0-10]* % share of the market.
(620) Accordingly, in the light of the checks carried out by the Commission, the market shares of the main competitors are approximately as follows:
Table of United Kingdom cable tray market shares
TABLE
Source:
Commission investigation.
(621) Following the proposed merger, Schneider/Legrand would have a market share of around [30-40]* %, four times greater than that of its nearest competitors, RM Cable Tray and Unitrust/Tyco. The relevant market would thus be characterised, in terms of market shares, by the presence of a clearly dominant leader and a number of also-rans.
(622) In addition, Schneider/Legrand would have even larger market shares in several segments of the United Kingdom cable tray market, as shown in the following table, which is based on data provided by the parties(217).
Table 33
TABLE
(623) Following the merger, then, Schneider/Legrand would not just be by far the leading group on the United Kingdom cable tray market in general, but in addition it would have particularly strong positions on virtually all segments of the relevant market. The only segment where its position would be weaker is the steel strut-channel support system, where it would have a market share of [0-10]* %, behind Unitrust ([40-50]* % market share) and Metsec ([10-20]* %).
(624) Thus the notified merger would have the effect of reinforcing Schneider through the addition (i) of Legrand's market shares in the steel cable tray market segments in which it is already dominant and (ii) of Legrand's positions in the plastic and glass fibre-reinforced plastic cable tray market segments from which it is absent.
(625) In their reply to the statement of objections, the parties stated that [a large proportion]* of cable trays sold by Mita were in fact welded wire mesh cable trays produced by a third party (Métal Déployé). They also stated that Mita was about to lose that contract with Métal Déployé, which related both to the distribution by Mita of Métal Déployé products and to the use of the Cablofil brand owned by Métal Déployé. [...]*. According to the parties, the welded wire mesh cable trays supplied by Métal Déployé to Mita and sold under the Cablofil brand accounted for a [0-10]* % share of the United Kingdom market, which reduced Schneider's share to [0-10]* %, including Thorsmann. They also argued that Métal Déployé would shortly become a serious competitor on the relevant market: the subsidiary it intended to create on the United Kingdom market would, under the agreement terminating the supply contract, take over the sales force built up by Mita for welded wire mesh cable trays and benefit from the reputation of the Cablofil brand on that market.
(626) It should first be noted that the supply contract between Mita and Métal Déployé has not yet been actually terminated, [...]*. And if the contract was in fact terminated, Mita could easily source the products concerned from Wiremold, the Legrand subsidiary which markets the same products. The parties also stated that Wiremold has a supply contract with PEMSA. Furthermore, as the parties themselves acknowledge, steel sheet cable trays, steel wire cable trays and steel cable ladders are fully substitutable. Lastly, Mita's loss of the Cablofil brand would be offset by the fact that it was coupled with the Mita brand (as can be seen from Mita's product catalogues). For these reasons, Mita would not be significantly weakened by possible termination of the supply and brand licensing contract linking it hitherto to Métal Déployé.
(627) As to the second argument put forward by the parties, namely that Métal Déployé was shortly to enter the United Kingdom market, it should first of all be noted that such market entry is for the time being not certain but merely an intention on the part of the firm concerned. In any event, even if Métal Déployé were to enter that market, it would not automatically take over the market shares which Mita held by reselling its products. This is because, first, as already explained above, the Cablofil brand was hitherto used in conjunction with (and under the umbrella of) the Mita brand: the Cablofil brand on its own would not therefore benefit from all the strength and reputation enjoyed by Mita Cablofil. Second, Métal Déployé would have to overcome the abovedescribed barriers to entering the cable tray market. Those barriers to entry would even be reinforced, as regards the United Kingdom market in particular, by the strength of the merged entity (as analysed below).
C.2.2 The merged entity would have a broader product range than its competitors
(628) Overall, Schneider/Legrand would be present in all segments of the United Kingdom cable tray market. None of its competitors has a product range covering all segments of that market. In particular, none of its main competitors has a range comprising plastic cable ladders and glass fibre-reinforced plastic cable trays.
(629) Prior to the merger, only Legrand is present in the plastic and glass fibre-reinforced plastic cable tray segments, with products marketed under the Legrand brand name. These segments, which are worth much less than the other market segments, can be regarded as niche markets that have been abandoned by the major operators. Thus, Schneider, operating under the brand names Mita, Wibe and Thorsman, and Wiremold, a group purchased by Legrand in 2000, are present only on the various segments of the steel cable tray market. Accordingly, the notified merger would result in the emergence of an operator with a unique position on the relevant market.
(630) Details of the product range of the main operators on the relevant market in 2000 are given in the following table.
Table 34
TABLE
(631) As explained above, glass fibre-reinforced plastic cable trays have technical characteristics which make them particularly suitable for use in corrosive atmospheres. As such, from a demand perspective, these products cannot be replaced by other types of cable tray produced using other materials. The Schneider/Legrand merged entity would therefore face two types of competitor on the relevant market: (i) relatively major groups which are present on the main segments of the relevant market, i.e. the various types of steel cable tray and (ii) more specialist groups which operate only in the plastic and glass fibre-reinforced plastic cable trays segment (such as Marshall Tufflex) or in certain segments of the steel cable tray market.
(632) This would enable Schneider/Legrand to resist any attempts by those competitors to strengthen their positions to its detriment, because it would be able to use its positions on market segments in which they are not present, where the merged entity could apply higher prices, to counter their offensive on other market segments by engaging in price-cutting. Indeed, its unique market position, coupled with its other advantages, would allow Schneider/Legrand successfully to attack the positions of both categories of competitor.
C.2.3 The merged entity would have an unrivalled array of brands
(633) Schneider/Legrand would have five brand names on the United Kingdom cable tray market. The Thorsman, Mita and Wibe brands owned by the Schneider group since its takeover of Lexel would be complemented by Legrand's brand names Legrand and Wiremold. Wiremold enjoys a high profile on the United Kingdom cable tray market as one of the brands generating the highest volume of sales(218). To the Commission's knowledge, no competitor can offer an array of brands comparable in quantity or quality.
(634) As such, the new group would be able to implement a multi-brand sales policy and thus fine-tune its response to each demand segment. In particular, Schneider/Legrand would be able to focus some of its brands on specific product types, such as glass fibre-reinforced plastic cable trays, and use its other brands for top-selling goods such as steel cable ladders.
(635) Schneider/Legrand's broad product range, coupled with its array of brands, means that it would be able to operate on both general and specialist markets more successfully than any of its competitors, at least in the short term. This would enable it to compete directly with its competitors on their core market while using its other brands, at higher prices, on other market segments where it is less affected by competition.
C.2.4 The merged entity would have privileged access to the distribution network
(636) The parties have stated that, on average, electrical wholesalers account for between 75 % and 95 % of cable tray manufacturers' turnover on cable trays(219).
(637) Schneider/Legrand would thus benefit from its strong position on other electrical distribution products markets in the United Kingdom and, correlatively, from the volume of wholesalers' sales of its products. The new group would thus account for between 10 % and 20 % of the sales of one of the largest United Kingdom wholesalers. By way of comparison, that wholesaler's second-largest supplier accounts for less than [0-10]* % of its sales.
(638) In view of the importance of Schneider/Legrand to their sales and the effects of discount and rebate schemes operated by manufacturers, there would be a significant incentive - to put it mildly - for wholesalers to maintain the turnover achieved with all the products of the merged entity.
(639) Schneider/Legrand would also benefit from the tendency of wholesalers to reduce the number of their suppliers of low-voltage electrical equipment in each category. Logically, this trend can be expected to be particularly marked for products which have a low unit value and take up a lot of space. As the market leader, with a market share significantly higher than that of all its competitors, all segments taken together, the merged entity would be the privileged supplier of wholesalers accounting for the bulk of manufacturers' sales.
C.2.5 The merged entity would be the only player on the market offering both cable trays and busbar trunking
(640) Schneider/Legrand would be the only player on the United Kingdom market offering both cable trays and busbar trunking. None of its competitors is present on both of those product markets. Although demand-side substitutability between cable trays and busbar trunking is limited, the new group would benefit from this unique position. It would be well placed to compete with other operators on the cable tray market, both from within the market, with its range of cable trays, and from outside the market, with its busbar trunking for power transport and distribution applications where there is a certain degree of substitutability between the two product categories.
C.2.6 Conclusion: the merged entity would be able to raise the price of its products to its own benefit
(641) Schneider/Legrand would have several significant advantages over its competitors on the United Kingdom cable tray market. In addition to a market share substantially larger than that of its competitors, the merged entity would have particularly strong positions on several market segments, an unparalleled array of brands, privileged access to wholesalers and a product range combining cable trays and busbar trunking. It would therefore be able to raise the price of the products in question without suffering losses in market share which would make such increases unprofitable. In particular, Schneider/Legrand would be able to raise the price of products marketed under some of its brands only so that at least part of the demand which normally would switch to different brands would shift to other Schneider/Legrand brands for which prices stayed the same. For the reasons set out above, neither competitors nor wholesalers would be able to counter such a price increase initiated by the new group. The Commission therefore concludes that the notified merger would create a dominant position for Schneider/Legrand on the cable tray market in the United Kingdom.
C.3 ANALYSIS OF THE MERGER'S IMPACT ON MARKETS IN ELECTRICAL EQUIPMENT DOWNSTREAM OF FINAL PANELBOARDS
C.3.1 Introduction
(642) By combining two of the three main competitors at European level, the notified merger would strengthen or create a dominant position in several product markets and national markets in electrical equipment downstream of final panelboards.
(643) The electrical equipment in question covers a wide variety of goods with very different functions, technological content and prices. However, these products share the characteristic of being installed in an electrical network downstream of the final panelboard and are therefore also referred to as "wiring accessories". This means that they are powered by low-current electricity, usually below 40 amps, or are not in contact with electricity at all. The products in question do not therefore use the same technologies as the other types of low-voltage electrical equipment described above. Furthermore, some of these products, unlike other electrical equipment, are installed in the inhabited parts of residential and commercial buildings, where they are visible. On account of these two characteristics, the way in which the markets for products downstream of the final panelboard operate differs partly from that of the product markets evaluated previously.
Role of the different players on the markets in electrical equipment downstream of final panelboards, and relations between them
Manufacturers
(644) In the markets for electrical equipment downstream of final panelboards, the main European manufacturers are currently Legrand, ABB and Schneider. Only those three manufacturers are present on most or all of the relevant product markets and national markets.
(645) Of the other manufacturers, only Siemens and Hager are present on more than one product market and national market in the EEA. All the other competitors are either local operators with a strong presence in only one country, such as Niko in Belgium (sockets and switches), or firms specialising in just one or more product groups, such as Cooper (emergency lighting systems).
(646) The following table shows the presence of the main manufacturers in the different segments defined by the parties (i.e. segments which are sometimes broader than the product markets defined for the purposes of this Decision) and in the various Member States (*** = market share in excess of 50 %; ** = market share of 20-50 %; * = market share of 5-20 %):
Table 35
TABLE
(647) Manufacturers of products downstream of final panelboards rely on the reputation of their brands and the trust that installers and end users place in them. They attempt to gain privileged access to wholesalers mainly by offering substantial discounts and rebates but also through promotion campaigns in their shops. Lastly, manufacturers maintain direct relations with installers, this being essential to stimulate demand for their products. To that end, manufacturers provide installers with training sessions, supply software to help them design electrical installations and choose products from their range, implement promotion campaigns on the ground and provide technical assistance. Thus Legrand's total commercial and marketing expenditure represents roughly [0-10]* % of its turnover in France, i.e. an amount of almost FRF [100-800]* million(220).
Wholesalers
(648) Wholesalers play a particularly important role in markets for products downstream of the final panelboard, because most of those products are sold via them. The Commission's investigations have shown that, as a rule, the parties and their competitors sell 90 % or more of their wiring accessories to wholesalers. The few exceptions to the rule concern specific product types (such as telephone sockets or control systems) and/or certain countries. Wholesalers depend on the demand created by manufacturers and brands known to installers and final customers. They are therefore obliged to keep in stock frequently requested products, which in practice are those marketed under well-known brands.
(649) In addition, wholesalers are cutting the number of their suppliers with a view to rationalisation. The Commission's investigations showed that, as a rule, wholesalers attempt to restrict the number of their suppliers to three or four for each product category. This focusing of wholesalers' purchases on a limited number of suppliers is also the result of various discounts and rebates granted to them by the major manufacturers, which may represent more than [30-60]* % of the products' selling price. This encourages them to concentrate mainly on selling products of manufacturers and brands which are already well established and have a substantial market share. Conversely, there is little incentive for wholesalers to make major efforts to help a small brand or a new entrant to grow or develop its market position. This factor, which applies to all low-voltage electrical equipment, is of particular importance for products downstream of the final panelboard, because they are produced by numerous small, independent manufacturers specialising in one type of equipment and operating in a small number of Member States. These small manufacturers have the most to lose from the process of rationalisation and focusing of wholesalers' purchases.
(650) Lastly, the Commission's investigations demonstrated unambiguously that business relations between wholesalers and manufacturers of equipment downstream of the final panelboard are organised on a national or local basis. This is true for all commercial aspects, including choice of suppliers, selection of ranges purchased and sold, price and discount setting and implementation of specific promotion campaigns. Lastly, wholesalers are relatively indifferent to the prices of the products they purchase and are more concerned with the trade discounts and rebates granted to them by manufacturers, which generate a significant percentage of their profit margin.
Installers
(651) Installers are responsible for installing low-voltage electrical equipment for final customers. As already explained above, they are generally conservative and extremely attached to the brands which they are familiar with and trust. For products downstream of the final panelboard, installers are often brand specifiers. Project managers (architects, engineering consultants, etc.) are very rarely involved in such decisions, except as regards control and security systems and components for communication networks which are usually installed only in large commercial buildings. The installers' influence in terms of brand choice is, however, limited by any wishes expressed by their customers, prompted essentially by aesthetic considerations. This applies mainly to sockets and switches, rarely to other products.
(652) The factors determining an installer's decision to choose a particular brand are safety, which from the installer's perspective is guaranteed by a well-known brand which he trusts, ease of assembly and product availability in the shop of his local wholesaler. Price is a more marginal consideration, because any savings made by buying products cheaply are generally less important to the installer than the time he takes to familiarise himself with a new product. In addition, since the installer is not the final consumer, he passes on the cost of the products he installs to his customers.
Final customers
(653) Final customers are mainly interested in the overall result, i.e. the complete electrical installation. The only price quoted to them is for the complete final installation, the bulk of which consists of payment for the installation work. In practice, final customers are not informed of the price of each product installed and they are not normally interested in obtaining such information. But in general they tend to be more interested in the choice of equipment downstream of the final panelboard than in equipment located upstream. Products downstream of the final panelboard, in particular sockets and switches, are visible in residential or commercial buildings, and therefore personal aesthetic preferences may come into play at that point.
The Schneider/Legrand merged entity would be a major player on most European markets for electrical equipment downstream of the final panelboard
The merged entity would have a significantly broader product range and geographic cover than any of its competitors
(654) The merged entity would have a complete product range covering all markets for electrical equipment downstream of the final panelboard. It would also have comprehensive cover of the whole of the EEA. The assessment of the role that Schneider/Legrand would play at European level, far from invalidating the definition of the relevant geographic markets as national, forms an integral part of the analysis of the effects of the merger on each of the product and national markets affected.
(655) As regards product ranges, it should be noted that Schneider and Legrand are already two of the main non-specialist groups on the relevant product and geographic markets. Their range is not limited to sockets and switches, but also comprises, for each group, fixing and connecting equipment and trunking equipment directly linked to those products, as well as control systems, security and safety systems and connectors for data networks. Although each of the parties already has a broad product range, it can be compared with that of other non-specialist groups such as ABB and Siemens and, to a lesser extent, Hager and GE.
(656) If Legrand were merged with Schneider, a product range of unparalleled breadth would be created. For example, Legrand would bring into the new group its range of self-contained emergency lighting units and its access control systems. For its part, Schneider would complement Legrand's range with its selection of heating and lighting control systems. Lastly, the merger of the two groups' range of data sockets and components for communication networks would result in the creation of a comprehensive range of VDI products.
(657) Schneider/Legrand would have a broader product range than the other non-specialist groups. For example, ABB is virtually absent from the fixing and connecting equipment market and the security and protection systems market(221). Siemens is not active on the market for VDI products and trunking systems(222). GE is absent from the market for security systems and VDI products(223). Hager does not operate on the markets for security systems, VDI products, and fixing and connecting equipment(224).
(658) In terms of its geographic position, Schneider/Legrand would also have unmatched coverage of European territory.
(659) Legrand has an especially strong presence in the southern states of the EEA. It has very significant positions on the sockets and switches market in France ([80-90]* %), Italy ([60-70]* %), Portugal ([50-60]* %) and Greece ([40-50]* %). Conversely, Schneider is particularly well established in the northern states of the EEA, especially in Scandinavia, since its takeover of Lexel. It is very well positioned on the sockets and switches market in Denmark ([70-80]* %), Finland ([30-40]* %), Sweden ([40-50]* %) and Norway ([50-60]* %). The proposed merger would result in the significant market shares held by Schneider in northern Europe being combined with those of Legrand in southern Europe.
(660) The merger would also significantly reinforce the presence of both parties on the various national markets in which Schneider and Legrand did not previously have a dominant position. On the Spanish sockets and switches market, for instance, the merger would combine Schneider's [10-20]* % market share in 2000 with Legrand's [10-20]* %. The merged entity would therefore be significantly strengthened and in a better position to face competition from the leader, Simon, which holds a market share of [40-50]* %.
(661) The only countries where the merged entity would not have large market shares on any of the markets for equipment downstream of the final panelboard would be Germany and, to a lesser extent, Ireland and the Netherlands.
(662) Lastly, the merger would result in the creation of a particularly powerful group on all French wiring and electrical accessories markets. In particular, the new entity would have a near-monopoly on the sockets and switches market and would control [80-90]* % of the market for fixing and connecting equipment, [50-60]* % of the emergency lighting market and [90-100]* % of the weatherproof wiring accessories market.
(663) The merged entity would thus have geographic cover extending across the whole of the EEA and a product range considerably broader than that of its direct competitors with a European presence, i.e. ABB, Siemens, GE and Hager. In particular, Schneider/Legrand would enjoy strong positions on several national markets and on the sockets and switches market. These strong positions would be a lever whereby the new group could reinforce its positions on other product markets or other national markets. It would also be able to use its substantial presence on most geographic and product markets to undermine any attempt by its competitors to strengthen their own presence on markets in which it has a leading position.
(664) In their reply to the statement of objections(225), the parties challenge this analysis, basing their line of argument on a calculation of the positions of the main competitors on a hypothetical EEA-wide market in all electrical equipment downstream of the final panelboard. If the market were defined in this way, the merged entity would have a [10-20]* % share, as against [10-20]* % for Siemens. It is clear, however, from the table supplied by the parties in their reply, as well as from Table 35 above, that Siemens' share of this hypothetical market derives mainly from its relatively strong position in only two segments: control systems and security and safety systems. Siemens' business in those two segments is furthermore concentrated chiefly in one Member State, Germany.
(665) The parties also argued(226) that certain specialists, such as Lucent, Pouyet, 3M, AMP, Quante, Alcatel and BICC, had wider ranges of certain products than the non-specialists. The names of the firms mentioned by the parties in support of their arguments suggest that this applies only to components for communication networks. In any event, even if those specialists' product ranges were wider than those of the parties and other non-specialists, they are confined to a small number of product categories. Such a situation cannot therefore call into question the finding that the merged entity would have a wider range of wiring accessories than those of all its competitors, whether specialist or non-specialist.
(666) Schneider/Legrand would therefore have a significantly broader product range and geographic cover than any of its competitors.
The merged entity would have an array of brands unmatched by its competitors
(667) As the following table shows, Schneider/Legrand would have an unprecedented array of brands, in terms of both their number and reputation, in the market for equipment downstream of the final panelboard.
Table 36
TABLE
Source:
the parties and third parties.
(668) Each of the parties already has a very wide range of brands which are particularly well established on several national markets. The proposed merger would bring together in a single group the brands of Schneider, which are especially well established in the north of the EEA (e.g. Elso, Elko, Thorsmann) and of Legrand, which are especially well positioned in the south of the EEA (e.g. Bticino and Legrand). Schneider/Legrand would own the Legrand brand which, together with ABB, is the only truly European brand covering a broad range of equipment downstream of the final panelboard.
(669) In their reply to the statement of objections(227), the parties argue that in each Member State the number of main competing brands would be greater than the number of brands held by the new entity. However, the parties are here comparing the number of brands held by the merged entity with all the brands held by all their competitors in each country, including the brands of specialist manufacturers which produce only very narrow product ranges, and not all the brands held by each of their competitors.
(670) The number and quality of Schneider/Legrand's brands would give the new group a significant competitive edge given their role and importance to the functioning of the relevant product markets. Brands are a crucial factor in the choice of equipment downstream of the final panelboard, particularly for small installers, who are the largest group of purchasers of those products. Small installers are used to working with a limited number of different brands so that they have an in-depth knowledge of the technical characteristics of products. This enables them to be fully conversant with the installation process and thus save time. Manufacturers themselves encourage this by organising training for small installers and distributing electrical installation design software. Many European manufacturers and wholesalers have confirmed that, in most national markets, brands play a more important role than price as far as that customer group is concerned(228).
(671) In addition, the fact that several high-profile brands used to market the same types of product would be brought together within one group would enable Schneider/Legrand to conduct differentiated, complementary commercial policies for each brand. Thanks to such policies, the new group would be able to fine-tune its response to demand and competition in each of the market segments. In particular, Schneider/Legrand would be able to position brands to appeal specifically to the upper, middle and lower end of the market. Almost all the other operators on the market for equipment downstream of the final panelboard have only one brand per product group and/or national market. It would be impossible, at least in the short and medium term, for them to counter Schneider/Legrand by developing a comparable multi-brand commercial strategy. As such, Schneider/Legrand would be able to compete directly with their products in the segment which forms their core market by using a specific brand, while using other brands in other market segments.
(672) Legrand has already established a commercial strategy along the lines described above in countries where it has several brands, and is already reaping the benefits. As is explained in a Legrand internal document on Italy(229), "synergetic" use of the Legrand and Bticino brands is one of Legrand's strengths in that country. The Bticino brand is positioned at the top of the range, whereas the products sold under the Legrand brand are in a lower price bracket. The rewards of a multi-brand strategy are set out in an internal Legrand document on Portugal(230), a country in which Legrand has three brands: Legrand, Bticino and Quintela. This document examines the "position, role and ambitions assigned to each brand". For example, it states that [...]*.
(673) Indeed, one of Legrand's priorities is to develop a coherent multi-brand strategy wherever possible. Thus an internal Legrand document on France(231) states that "reinforcing an alternative position to the Legrand range of wiring accessories" is a strategic priority objective for the (Legrand Group) Arnould brand and company on the wiring accessories market (sockets and switches) in that country.
(674) The existence of a coherent Legrand multi-brand strategy, and its purpose, are also highlighted by Schneider. A Schneider internal document on Spain(232) states that the Legrand and Bticino brands are "complementary" and "differentiated" in that country. In particular, it explains that the Bticino brand is positioned in the "upmarket" segment, whereas the Legrand brand is targeted more specifically on the "large projects" market.
(675) It is clear from the foregoing that the competitive advantages deriving from the array of brands held by Schneider/Legrand would far outweigh the additional costs, mentioned by the parties in their reply to the statement of objections(233), that they would incur through the need to maintain a corresponding variety of models, catalogues or packagings. Significantly, both Schneider and Legrand have kept the brands of companies active on the wiring accessories markets which they have acquired in recent years, as shown by Table 36 above.
The merged entity would have privileged access to the distribution network
(676) As explained above, thanks to the breadth of its product range and the high profile of its brands, Schneider/Legrand would account for a significant proportion of wholesalers' turnover and, as a result, would have a substantial share of their total purchases in most EEA countries (see Table 31). As such, the new group would be an indispensable partner for wholesalers. In particular, it would be possible for wholesalers to obtain a comprehensive range of equipment downstream of the final panelboard exclusively from Schneider/Legrand. Wholesalers who chose to do so would even be able to offer their customers several different brands, in different price brackets, for many of those products.
(677) Business relations between the manufacturers of the products in question and wholesalers have been described above(234) as part of the analysis of the impact of the notified merger on competition in switchboard component markets. The same incentive schemes for wholesalers as those described above exist for the products in question.
(678) Wholesalers would be strongly encouraged to ensure that the level of their purchases from Schneider/Legrand at least remained constant. In addition, these complex discount and rebate schemes, coupled with the new group's predominant share of wholesaler purchases, would give Schneider/Legrand a major lever vis-à-vis those wholesalers. In particular, Schneider/Legrand would be able to force wholesalers to distribute its new products or product ranges which they did not distribute previously. To an extent, this is already the case in countries where either one of the two groups is already powerful. For example, [...]*(235).
The Schneider/Legrand merger would eliminate a major factor of competition on several markets
(679) To date, the rivalry between Schneider and Legrand has been a major factor of competition on several wiring accessories markets. This assessment applies mainly to national markets in which one of the groups is dominant and the other is an actual or potential challenger.
(680) As already explained, Schneider is dominant in many wiring accessories markets in northern Europe, whereas Legrand has a similar position in many national markets in southern Europe.
(681) In the product markets in Scandinavia in which Schneider is the market leader, Legrand is a potential competitor on the brink of entering the market in most cases. Geographically speaking, Legrand is present in the region (in [...]*) but on other product markets. In addition to switchboard components, it markets self-contained emergency lighting units. By its own estimates, Legrand controls [10-20]* % of the market for such units(236). It also states in the same document(237) that Legrand's priority objective is [...]*(238). It therefore seems that Legrand [...]* and that it anticipated a significant response from Schneider. The proposed merger would eliminate this competition factor, at least on the [...]* market.
(682) As regards national markets where Legrand is market leader in one or more wiring accessory product markets, namely France, but also to a lesser extent Spain, Italy, Portugal and Greece, Schneider is a direct and dangerous competitor.
(683) Thus a Legrand internal document on France(239), where the group's share of the sockets and switches market is greater than [80-90]* %, explains that the main risk facing the group is "the creation by Schneider Electric of an alternative competing with the Legrand brand in wiring accessories on the basis of Alombard-Sarel-Infra +". It is stated on the same page of that document that [...]*. The product ranges offered by Alombard, Sarel and Infra + cover a very large share of wiring accessories product markets. Alombard and Sarel sell sockets, switches, fixing and connecting equipment and trunking systems. Infra +, for its part, specialises in data sockets. It should also be noted that the Schneider range in France is complemented by the Lexel product range. The proposed merger would therefore prevent the creation of a credible competitor to Legrand in the country in which it has a dominant position.
(684) Similarly, a Legrand internal document on Greece(240), where Legrand controls almost [40-50]* % of the sockets and switches market, states that [...]*.
(685) In Italy, Spain and Portugal, Schneider is absent or marginally present on markets for equipment downstream of final panelboards. However, it does have a significant presence on switchboard component markets. It should be relatively easy for it to launch its ranges of wiring accessories given that they are distributed by the same wholesalers as electrical switchboard components [...]*(241).
The merged entity would be in a position to force its competitors into a race to renew product ranges
(686) Regular renewal of product ranges downstream of final panelboards is a way for well positioned manufacturers to attack smaller manufacturers while also maintaining or improving the image of their brands. A Legrand internal document on Italy(242) states that the renewal rate of the range is one of the group's strengths in that country. The purpose of renewing equipment downstream of final panelboards is to adapt visual aspects of the products to meet consumer demand and also to enhance those products with new functions, including electronic functions such as detection and remote control.
(687) The purpose - and effect - of this constant renewal of product ranges is to reduce the lifetime of products and to exhaust the resources of smaller competitors with a view to ejecting them from the market if possible. A Schneider internal document(243) on Alombard states that a shorter life cycle of sockets and switches [...]*.
Conclusion
(688) The Schneider/Legrand merger would radically alter the structure of competition on wiring accessories markets in a large part of the EEA. It would result in the creation of a group with several major advantages over its competitors, in particular the breadth of its product range, the extent of its geographic cover, its array of brands and its relations with wholesalers. If the fragmentation of demand from installers and their loyalty to high-profile brands are also taken into account, the new group would be able to impose price increases without suffering corresponding market losses. The assessment of incentives for wholesalers suggests that they would tend to fall in line with Schneider/Legrand's policy(244).
C.3.2 Sockets and switches
(689) In the sockets and switches market, the market shares of the parties and their main competitors are as follows(245):
Table 37
TABLE
Source:
estimates supplied by the parties.
(690) The above data show that, in France, Legrand already enjoys a near-monopoly, with a market share of [80-90]* %. In the light of that dominant position, and given the virtual absence of ABB and Siemens from the French market, Schneider, with a market share of [0-10]* %, is the only competitor which could currently pose a credible threat to Legrand and restrict its freedom of action.
(691) This is because Schneider has two widely known brands, Alombard and Sarel. Alombard is especially well entrenched at the upper end of the market. As the third player on the European market, with strong positions in northern Europe and, at the same time, a major player in the other low-voltage electrical distribution markets in France, with privileged access to the large wholesaler groups, Schneider has the potential to stabilise and even improve its position on the sockets and switches market in France. Indeed, this is acknowledged in Legrand internal documents, which refer on several occasions to the competitive threat posed by Schneider(246). The notified merger would eliminate that threat. Only one other operator has the potential to develop on the French sockets and switches market, having mastered the Franco-Belgian technology: Niko ([0-10]* % market share in 1999)(247). However, [...]*, which reduces the likelihood of strong competitive pressure between the two brands. By putting an end to competition from Schneider and providing the merged entity with a [90-100]* % market share, the planned merger would consolidate and significantly strengthen Legrand's existing dominant position in France.
(692) In the statement of objections, the Commission pointed out that the notified merger would also create or strengthen dominant positions in Italy, Portugal and Greece.
(693) In their reply, the parties dispute this analysis and argue that, despite Legrand's strong positions on those three markets, the transaction would not have an anticompetitive effect given Schneider's relatively small market shares and the presence of other larger competitors.
(694) The parties' reasoning can be accepted for the Italian and Portuguese markets; in the case of Greece, however, the finding set out in the statement of objections must be maintained.
(695) In the first place, as explained earlier, Schneider is the only competitor able to exert competitive pressure on Legrand in the sockets and switches market at European level. Schneider's occasionally weak existing position on certain national markets does not therefore necessarily reflect its competitive potential. It is only if Schneider's starting position is genuinely marginal in comparison with that of the other competitors that negative effects of the transaction concerned on competition cannot be proven.
(696) In Italy, Legrand currently has a dominant position, with a market share of [60-70]* % and two solidly positioned brands, Bticino and Legrand. Schneider, on the other hand, currently has only a [0-10]* % share of the market, whereas other players such as ABB (via its subsidiary Vimar), with [20-30]* %, and Gewiss, with [10-20]* %, are much better placed. Even taking into account the elimination of potential competition from Schneider, the overlap between market shares is not significant enough for it to be established with sufficient certainty that the notified transaction would alter competitive conditions on the Italian sockets and switches market to the extent that Legrand's existing dominant position would be strengthened.
(697) The same is true in Portugal, where Legrand currently has a very strong position, with a market share of [50-60]* % and four well established brands, Legrand, Bticino, Quintela and Terraneo, while Schneider has only a 1 % market share. Legrand's main competitors are General Electric (GE), Elapel and JSL, with market shares of [20-30]* %, [10-20]* % and [0-10]* % respectively. In these circumstances, it cannot be established with sufficient certainty that the elimination of actual and potential competition from Schneider would lead to the creation or strengthening of a dominant position.
(698) The situation is different in Greece, however. With [40-50]* % of the Greek market, Legrand also has a large market share which gives it a considerable advance on its main competitors, Siemens ([10-20]* %), Berker ([10-20]* %) and Jung ([10-20]* %), but does not place it in a dominant position comparable to the one it enjoys in Italy or Portugal, for example. Schneider, through its brand, is only fourth in terms of market share ([0-10]* %), but Legrand regards it as one of its main competitors(248). The planned merger would eliminate this competitor and create a market leader with a share of [40-50]* %, three times the market share held by Siemens and three and a half times that of the next two players. Alongside the merged entity, Siemens would be the only competitor with a significant presence on other product and geographic markets; Berker and Jung, on the other hand, are German SMEs specialised in equipment downstream of the final panelboard.
(699) To sum up, in view of (i) Legrand's existing strong but not yet clearly dominant position, (ii) the contribution that Schneider's not insignificant share would make to that position and (iii) the position of the remaining competitors, who would be much weaker in comparison, it is clear that the planned merger would alter competitive conditions considerably on the sockets and switches market in Greece and lead to the creation of a dominant position for the merged entity.
(700) Accordingly, the Commission concludes that the notified merger would strengthen a dominant position on the sockets and switches market in France and would create a dominant position on that market in Greece.
C.3.3 Weatherproof wiring accessories
(701) On the weatherproof wiring accessories market, there is overlap between the parties' market shares in Germany, Spain, France and Greece. Although this overlap is not likely to give rise to competition problems in Germany (where, according to the parties, Legrand has a market share of [0-10]* % and Schneider [0-10]* %) or Greece (according to the parties, Legrand has a market share of [20-30]* % and Schneider [0-10]* %), the parties' market shares are significantly higher in France and Spain.
(702) In France, the parties have indicated that, for 2000, Legrand's market share is [80-90]* % and Schneider's [0-10]* %. This information broadly tallies with the estimates contained in Legrand's Medium-term plan 2001-05 France, according to which Legrand (including Arnould) has a market share of [90-100]* %, while Schneider has [0-10]* %. Both sets of estimates see Legrand as dominant on the French market for weatherproof wiring accessories. The planned merger would eliminate any remaining competition on the market and reinforce Legrand's dominant position.
(703) In Spain, the parties have estimated Legrand's market share for 2000 at [30-40]* % and Schneider's at [0-10]* %, on the basis of an estimated market volume of EUR [10-30]* million. However, the Medium-term plan 2001-2005 Bticino Spain estimates the size of the market at ESP [1000-3000]* million, or EUR [0-10]* million; according to the same document, Legrand (including Bticino) has a market share of [60-70]* %, while Schneider, Simon and Gewiss have [0-10]* % each.
(704) Legrand has explained that the data featured in the Medium-term plans are estimates by the sales forces working in the respective countries based mainly on data from wholesalers and therefore tend to underestimate the overall size of the market. However, Legrand has accepted that the bulk of weatherproof wiring accessories is distributed through wholesalers and that, as a result, the overall assessment of the market should be roughly correct(249). Legrand has not indicated that it sells weatherproof wiring accessories via channels other than wholesalers(250).
(705) According to Schneider, Legrand's market share is [40-50]* %, Schneider's is [0-10]* % and the overall market is worth ESP [1000-3000]* million, i.e. EUR [0-10]* million.
(706) A third party has provided market share estimates of between [50 and 80]* % for Legrand and below [0-10]* % for Schneider; according to that third party, the overall market volume is EUR [0-10]* million(251).
(707) Having compared these different estimates of the volume and structure of the Spanish weatherproof wiring accessories market, the Commission has concluded that the estimates provided by the parties as part of the present proceedings are bound to overestimate the overall market volume and, as a result, underestimate Legrand's market share. However, the estimates featured in the Medium-term plan Legrand Spain are very close to the estimates provided by the aforementioned third party and also to the estimates supplied by Schneider, at least as regards market volume.
(708) Accordingly, the Commission concludes that the volume of the weatherproof wiring accessories market in Spain is not significantly larger than EUR [0-20]* million. If a [10-20]* % safety margin is added in favour of the parties, the market can thus be estimated at EUR [0-20]* million. On that assumption, and on the basis of turnover data provided by the parties themselves (Legrand: EUR [0-10]* million, Schneider: EUR [0-10]* million), Legrand's market share should represent at least [40-50]* % and Schneider's at least [0-10]* %.
(709) On the basis of those data, Legrand is clearly already the market leader, with a considerable gap between its market share and that of its main competitors (Simon, Gewiss), each of which is estimated at [0-10]* % by the Medium-term plan Legrand(252). This already strong position would be reinforced by Schneider's share if the notified merger were to proceed. Although Schneider's current share of the Spanish weatherproof wiring accessories market is small, it does not reflect the company's full competitive potential on that market, given that it did not enter it until 1999. Indeed, the fact that Schneider has been able to conquer a market share of at least [0-10]* % in just two years, and that in a market from which it had previously been absent, suggests that it is well placed to bring significant competitive pressure to bear on Legrand. In eliminating this competition between Schneider and Legrand, the planned transaction would probably result in a dominant position for the merged entity.
(710) In their reply to the statement of objections, the parties used two arguments to challenge the Commission's analysis:
(711) First, the addition of Schneider's market share would only marginally strengthen Legrand's position and would not therefore have any anticompetitive effect.
(712) Second, Schneider's relatively rapid success on the Spanish weatherproof wiring accessories market demonstrates that that market is wide open and can be easily penetrated by any new competitor.
(713) However, the [0-10]* % market share currently held by Schneider is far from negligible. As explained earlier, it reflects considerable growth potential given Schneider's relatively recent entry into the market. Furthermore, Schneider's market share already represents a significant position in comparison with the main competitors, Simon [0-10]* %) and ABB/Niessen ([0-10]* %)(253), particularly bearing in mind that Simon leads the market in ordinary sockets and switches in Spain with a [40-50]* % share.
(714) In reply to the second argument, it has to be recognised that Schneider's rapid success on the Spanish weatherproof wiring accessories market, compared with the relative weakness of competitors such as Simon and ABB/Niessen (despite their strength on the ordinary sockets and switches market), is much more a reflection of Schneider's competitive strength than of an alleged absence of barriers to entry. It should be stressed here that Schneider is far from being a new entrant in the low-voltage electrical equipment markets in Spain: it has a well established position in the markets for electrical switchboard components in that country. It also has a range of weatherproof wiring accessories already successfully marketed in France, from where the weatherproof accessories sold in Spain under the Eunea brand are in fact imported. There is no other competitor who is both strongly established on other product markets in Spain and has a recognised brand and a full range of weatherproof wiring accessories.
(715) Accordingly, the Commission concludes that the notified merger would strengthen a dominant position on the weatherproof wiring accessories market in France and would create a dominant position on that market in Spain.
C.3.4 Emergency lighting/self-contained emergency lighting units
(716) On the market for emergency lighting systems, there is a significant degree of overlap between the parties' activities in France, where Legrand (including its subsidiaries URA and Lumatic) has a market share of [50-60]* %, while Schneider has [0-10]* %. If self-contained emergency lighting units alone are taken into account, the market shares are [60-70]* % for Legrand and [0-10]* % for Schneider. While Legrand makes these products itself, Schneider buys them (mainly from Kaufel for the French market). The parties' main competitors are Cooper (Luminox: [10-20]* %) and Chubb ([0-10]* %); all the other competitors have market shares of less than [0-10]* %. Legrand is therefore already the undisputed leader on the market with a market share almost four times larger than its nearest competitor. In the light of this, it can be argued that Legrand has a dominant position on the market. In comparison, Schneider entered the French emergency lighting market only recently and had a market share of only [0-10]* % in 1997, when Legrand still controlled [70-80]* % of the market. This shows that, in the space of just a few years, Schneider has become a serious competitor for Legrand. It has succeeded in capturing a significant market share from the market leader, and is now able to constrain Legrand's behaviour to an appreciable extent. This is confirmed by an internal document of URA, a Legrand subsidiary, which refers to the "difficulty of maintaining prices in the face of wider product availability and Schneider's two-pronged attack: pressure on prices in general [...]* and pressure on the 'mix', given that Schneider's attack focuses on 'basic' products"(254).
(717) The Schneider/Legrand merger would put an end to this competitive pressure and give the merged entity a market share of almost [50-60]* % in emergency lighting as a whole and of more than [60-70]* % in the market for self-contained emergency lighting units. As a result, the merged entity's dominant position would be strengthened to such an extent that the other competitors, specialist firms lacking Schneider's resources and access to wholesalers, or potential market entrants, would be even less able to check its market behaviour. As a third party has observed(255), Schneider's discount calculation system would not allow competitors to be competitive.
(718) In their reply to the statement of objections, the parties did not dispute this analysis as such, but simply argued that the transaction would not have any adverse effect on competition, taking a broader product market in security and safety systems for protecting life (covering both emergency lighting and fire detection). As demonstrated earlier, this argument does not stand up.
(719) The Commission therefore concludes that the notified merger would strengthen a dominant position in the emergency lighting market or in a potentially narrower market for self-contained emergency lighting units in France.
C.3.5 Analysis of the impact of the merger on competition on the markets in fixing and connecting equipment
(720) The Schneider/Legrand combined entity would be the main player on the market in fixing and connecting equipment at European level. It would have an aggregate EEA market share of [20-30]* % and would be present in 11 Member States. The parties state that their main competitor at European level would be Hager, with a market share of [10-20]* % but a presence in only one Member State, Germany. Hager nevertheless stated that it is not active in this product market(256).
(721) The planned merger would lead to an addition of very substantial market shares on the French market in fixing and connecting equipment.
The merged entity would have a particularly large share of the French market
(722) Schneider/Legrand would have a share of [70-80]* % of the French market in fixing and connecting equipment. Legrand has a [50-60]* % share of this market, to which would be added the [20-30]* % market share held by Schneider (2000 figures). The parties were unable to identify other players on this market.
(723) What is more, Schneider/Legrand would have even larger market shares for certain categories of fixing and connecting equipment. Schneider thus has a [20-30]* % share and Legrand a [40-50]* % share (2000 figures) of the French market in flush-mounting boxes and junction boxes(257). The parties were unable to identify their competitors for flush-mounting boxes and junction boxes. Legrand explains that this product category accounts for around 40 % of the total relevant market(258).
(724) The proposed transaction would therefore have the effect of combining the market shares of the two main players on the relevant market.
The merged entity would have an unrivalled array of brands
(725) Schneider/Legrand would operate on the French fixing and connecting equipment market with four brands, all enjoying considerable goodwill. The Alombard and Sarel brands owned by Schneider would thus be pooled with the Legrand brands Legrand and Arnould. These brands are well known by installers since they account for the bulk of sales of sockets and switches in France.
(726) This would enable the new group to develop a multi-brand commercial strategy in order to fine-tune its response to each demand segment. Sarel already caters more specifically for demand from industry, while Alombard has an upmarket brand image; Legrand and Arnould, for their part, enjoy an excellent reputation in the residential sector. The Schneider/Legrand entity would therefore be in a position to counter moves by its competitors by focusing one of its brands on its core market while using its other brands to serve the other market segments.
The merged entity would have strong positions on all the French markets in products downstream of the final panelboard
(727) Schneider/Legrand would be particularly strong in France on all the markets in products downstream of the final panelboard. In particular, the new group would have more than an [80-90]* % share of the sockets and switches market. It would also have a [40-50]* % share of the trunking market (based on 1999 figures).
(728) Fixing and connecting equipment is marketed via the same distribution channels as other electrical equipment downstream of the final panelboard, and demand for these products is chiefly from installers. The parties explain that manufacturers generate [90-100]* % of their turnover in products downstream of the final panelboard through sales to wholesalers and that installers account for [90-100]* % of orders from wholesalers(259).
(729) The new group could therefore use its strength on all the French markets in electrical equipment downstream of the final panelboard in order to defend or strengthen its position on the fixing and connecting equipment market since all these products are highly complementary. In particular, junction boxes and flush-mounting boxes are designed to receive or to be used in conjunction with other wiring accessories. In a Legrand catalogue, for example, sockets and switches, trunking, and fixing and connecting products are presented in combination(260). Likewise, an Arnould catalogue explains which lines of sockets and switches can be installed on the Igloo line of flush-mounting boxes(261).
The merged entity would have privileged access to wholesalers
(730) The parties explain that, on average, [90-100]* % of fixing and connecting equipment is marketed via wholesalers(262). Schneider/Legrand would have privileged access to distribution channels for its fixing and connecting products: the new group would be an essential supplier at least for the main wholesalers operating in France.
(731) Rexel, the leading distributor of electrical equipment in France, with an estimated share of [40-50]* % of the French market, thus states that Schneider/Legrand would account for between [40-50]* % of its sales(263) (see Table 31 above).
(732) The new group would therefore enjoy a unique position as regards the distribution of its products. Given what has been explained above concerning the systems of discounts and rebates, wholesalers would be inclined at least to maintain their sales of the new group's fixing and connecting equipment.
The merged entity would have a full range of fixing and connecting equipment (barrier to entry)
(733) The fixing and connecting equipment market covers a large number of product types. These exist in an even larger number of versions. Being able to offer a full range of products constitutes a major competitive advantage on two counts.
(734) First, it is simpler and quicker for an installer to buy all or at least the bulk of the fixing and connecting equipment he needs from one and the same supplier. An installer opting to source from different suppliers would have to either consult several different manufacturer's catalogues or visit wholesalers' shelves displaying each manufacturer's products, both time-consuming tasks that would not be justified by the low cost of the products in question.
(735) Second, a manufacturer with a full range of products benefits from their high level of complementarity. For example, a Sarel catalogue explains that the junction boxes of the Murabox range "can be easily fitted with the Sarel terminal strip" and with "the Sarel terminal block"(264).
(736) Lastly, a manufacturer that is able to offer a full range of products makes users accustomed to using its products.
Conclusion
(737) The proposed transaction would have the effect of eliminating the essential basis for competition on the French market in fixing and connecting equipment. It would bring together the undisputed top two players on that market. The merged entity would have all the necessary levers for controlling the French fixing and connecting equipment market. It would in particular be able to impose its prices on the market. Given its weight in the distribution system, wholesalers would not be able to oppose any such price increases (see above). The notified transaction would therefore lead to the creation of a dominant position on the French market in the sale of fixing and connecting equipment. In their reply to the statement of objections, the parties did not contest this conclusion.
C.3.6 Analysis of the impact of the merger on competition on the markets in transformation equipment
(738) The parties' activities on these markets overlap chiefly in France, through sales by Legrand of its own-manufactured products and sales by Schneider of products sourced from a German manufacturer, Murrelektronic.
(739) In their reply to the statement of objections, the parties supplied the following table showing their own and their main competitors' market shares on the transformer and power supplies markets in France:
Table of transformer and power supplies market shares
TABLE
(740) It can be seen from the above data that Legrand is currently the undisputed leader on the French transformer market, with a market share five times as large as its nearest rival, Siemens, and six or seven times as large as the third and fourth ranking players, Schneider and Cecla. The remainder of the market, accounting for [40-50]* % of the total, is fragmented, with no other competitor holding a market share in excess of [0-10]* %. The notified transaction would therefore eliminate one of Legrand's three sole competitors whose market share is not insignificant; it would also increase the merged entity's lead on its nearest competitors, giving it a market share six times as large as Siemens and eight times as large as Cecla.
(741) To the new entity's market share would be added its privileged access to the distribution network. This factor is less crucial to the analysis of the relevant market given the fact that the end users are industrial customers who are able to obtain supplies other than through wholesalers: a substantial proportion ([30-70]* %) of the products concerned are indeed sold direct by manufacturers to end customers. Nevertheless, the replies given by competitors during the investigation show that access to wholesalers does have an impact on competition in the transformer market. According to one competitor, Schneider is increasingly gaining control over the wholesale distribution network, making it impossible for other brands to find distribution channels(265). According to another third party, the merger would enable the merged entity to eject its competitors first from the market in sales to wholesalers and then from the market in general.
(742) In their reply to the statement of objections, the parties argue that, despite this market structure, the transaction would not create or strengthen a dominant position.
(743) First, they stress that Schneider is present on the transformer market only through the resale of products manufactured by a competitor. But that does not change the market analysis, since Schneider's market share reflects its own competitive strength and not that of another manufacturer.
(744) Likewise, the parties' argument that the transformer market as such is contracting as a result of the gradual substitution of power supplies for transformers does not rule out the possibility of the creation or strengthening of a dominant position on that market or the need, from the standpoint of merger control, for a sufficient degree of competition to be maintained as long as the market exists.
(745) The parties also maintain that, even after the planned merger, the existence of a large number of competitors of various sizes, ranging from large groups such as Siemens, Moeller, Omron or Phoenix, offering a full range of products, to small competitors at local level, would exert sufficient competitive pressure on the merged entity. The same would apply to at least potential competition from manufacturers of power supplies.
(746) However, with the exception of Siemens, the large groups mentioned are absent from or only marginally present on the French transformer market. By eliminating one of the competitors of significant size, the notified transaction would furthermore considerably reduce the ability of the remaining competitors, and particularly of the many small local manufacturers, to restrict the merged entity's freedom of action. As for substitute competition from the neighbouring power supplies market it has to be recognised that, of the main power supplies manufacturers active on the French market, three (ELC, Lambda and Lutze), each of which has a [0-10]* % share of the power supplies market, are completely absent from the transformer market. Schneider/Legrand would moreover as a result of the notified transaction also become the market leader in power supplies, with a market share of [10-20]* %.
(747) The Commission therefore comes to the conclusion that the transaction in question would create a dominant position on the French transformer market.
C.4 ANALYSIS OF THE IMPACT OF THE MERGER ON COMPETITION ON THE MARKETS IN CONTROL AND SIGNALLING UNITS
(748) Schneider/Legrand would be the main player on the European market in control and signalling units, with a market share of [20-30]* % (Schneider [20-30]* % and Legrand [0-10]* %). Its main competitors would be Moeller and Siemens, with EEA market shares of [0-10]* % and [0-10]* % respectively. Like its two main competitors, Schneider/Legrand would be present in all the EEA countries.
(749) The planned merger would lead to additions of very substantial market shares on the French market in control and signalling units.
C.4.1 The merged entity would have a particularly large market share
(750) As can be seen from the following table, Schneider/Legrand would have significantly larger market shares than its competitors on the French market in control and signalling units.
Table 38
TABLE
Source:
the parties.
(751) The proposed transaction would therefore bring together the two market leaders in terms of shares of the French market; it would lead to the creation of a player with a market share of [60-70]* %, far ahead of its two main competitors, K& N and Moeller, with respective market shares of [0-10]* %.
C.4.2 The merged entity would have an unrivalled array of brands
(752) Schneider/Legrand would do business on the French market in control and signalling units under four brands. Schneider owns the Télémécanique and Mafelec brands, while Legrand markets the products in question under the Baco and Legrand brands.
(753) This array of brands would enable the new group to cover each market segment in a particularly exhaustive manner. The advantage of segmenting demand in this way is underlined in a Schneider internal document, which explains that in the case of "conventional product lines, segmentation makes it possible to combine growth and profitability"(266). The document shows in particular that owning several brands enables differentiated product mix and pricing policies to be pursued for each of the brands. It also explains that having several brands makes it possible to "exploit a two-pronged multispecialist/specialist approach". Baco presents itself as the leader on the cam switches market with a market share of over [10-20]* %(267).
(754) The merged entity could thus reproduce what Schneider achieved through the acquisition of Mafelec. It should, however, be stressed that the beneficial effects for the new group of adding the Legrand and Baco brands to the Télémécanique and Mafelec brands would be significantly larger than the benefits which Schneider derived from the acquisition of Mafelec, for two main reasons. First, Schneider/Legrand would have four brands, enabling it to pursue an even more sophisticated multi-brand strategy; second, the competitors remaining on the market would have a significantly smaller presence.
(755) In their reply to the statement of objections(268), the parties argued that the effect of adding Baco to Schneider, and in particular to its subsidiary Télémécanique, would be negligible. The commercial strength of the Télémécanique brand, which is present on several continents, would not, they claim, be in any way enhanced by the Baco brand, whose reputation and field of activity are basically limited to France. The products marketed by Baco are, so they argue, furthermore conventional, standardised and harmonised and would therefore add nothing to Schneider's product range.
(756) It should first be noted that the parties do not challenge the finding that the merged entity would enjoy a competitive advantage through having a wide array of brands, unrivalled among its competitors. It is significant in this connection that Schneider held on to the Mafelec brand after acquiring control of the company in 1997(269). It is true that the Télémécanique brand enjoys a reputation and a geographic coverage far outstripping those of the Baco and Legrand brands as far as control and signalling units are concerned; but Baco and Legrand have a good reputation in France which would directly benefit the merged entity and strengthen its array of brands.
(757) Secondly, it is common ground that the different categories of control and signalling unit marketed by the Legrand group are also marketed by Schneider. The fact remains that the planned merger would lead to a significant strengthening of Schneider's positions in at least one product category: cam switches, in which Baco has a market share in excess of [20-30]* %.
(758) In conclusion, the addition of the Baco and Legrand brands to the Télémécanique and Mafelec brands already held by Schneider would confer a substantial competitive advantage on the merged entity.
C.4.3 The proposed transaction would eliminate the essential basis for competition on the French market
(759) The proposed transaction would have the effect of eliminating competition between the undisputed top two players on the French market in control and signalling units. Rivalry between the Schneider and Legrand groups provided the essential basis for the competitive structure of that market. This finding is borne out by internal documents of both parties.
(760) It is, for example, clear from an internal document drawn up by Baco(270), a Legrand subsidiary which is the vehicle for most of the group's control and signalling units business, that Schneider is its main competitor on that market. The document states that "in control and signalling units, the traditionally difficult competitive position with regard to Schneider will remain so in the short/medium term as a result of their introduction of a new product line"(271). It explains that Baco will retain a "defensive stance until our new product line is rolled out in 2003, to compete with Schneider's Harmony line"(272). The document lastly points out that Schneider is "extremely aggressive in all the industrial product customer segments (distribution - panel builders - original equipment manufacturers)";(273) this includes control and signalling units.
(761) It is also indicated in a Schneider internal document(274) that Schneider's acquisition of Mafelec was motivated by its desire to counter Baco on the market in question. The document thus states that the aim pursued by Schneider through that acquisition was "to capture the repetitive machines segment" and "to prevent competitors from the repetitive machines segment penetrating the markets in industrial machines and special machines". Baco is presented, alongside Omron, as a specialist on the repetitive machines market. It is also significant to note that Baco's name is highlighted in bold type, unlike Omron. Schneider's acquisition of Mafelec was therefore intended to strengthen its position on the repetitive machines market with a view to competing with Baco on its core market and thereby preventing the latter challenging its positions on the related markets in industrial machines and special machines.
(762) In their reply to the statement of objections(275), the parties disputed the finding that the proposed transaction would eliminate the essential basis for competition on the French market for control and signalling units.
(763) They began by arguing that Legrand's market share ([0-10]* %) was both relatively small and similar to those held by K& N ([0-10]* %) and Moeller ([0-10]* %). Furthermore, given its size ([50-60]* %), Schneider's share of the relevant market would be only marginally strengthened by the proposed transaction. The parties then went on to claim that the reference in a Baco internal document to Schneider as its "main competitor" meant nothing in so far as Schneider was the European leader on the relevant market and any player therefore had to refer to Schneider in its analyses of competition on the market. Thirdly, the parties argued that Schneider's acquisition of Mafelec was not intended to counter Baco on the French market for control and signalling units but to enter a niche market from which it was absent, the market in membrane keypads.
(764) The parties' line of argument does not stand up to scrutiny. It should first be noted that Legrand is the second player, after Schneider, on the French market for control and signalling units, even if its market share only slightly exceeds that of K& N and Moeller. The proposed transaction would therefore bring together the two top players on the relevant market.
(765) In addition, Baco differs from K& N and Moeller on three main counts.
(766) In the first place, Baco, unlike K& N and Moeller, generates most of its turnover from the products concerned in France(276). In contrast with K& N and Moeller, maintaining its market share in France is therefore a matter of fundamental, if not vital, importance for Baco, and this places it in a special position of direct competition with Schneider. K& N and Moeller have strong positions outside France, where they make only a small share of their sales of the products in question(277). They therefore do not have the same competitive incentives as Baco in relation to Schneider on the French market.
(767) Secondly, Baco can rely on the strength of the Legrand group as regards access to distribution channels in France, a competitive advantage available to neither Moeller nor K& N, which account, all product categories taken together, for only a tiny share of the turnover of wholesalers established in France. A Legrand internal document(278) thus states several times that access to distribution channels is one of Baco's "anchor points".
(768) Thirdly, Baco has a brand with a high profile in France and a leading position (more than [10-20]* % market share) in the cam switches segment. A Legrand internal document(279) thus repeatedly states that Baco has "a sound reputation based on its long-standing presence, know-how and experience in the field". Baco can therefore use this strong position in cam switches as a lever to develop its sales of other products in its range: a Legrand internal document(280) states repeatedly that synergies between different categories of control and signalling units is one of Baco's strong points.
(769) For all these reasons, Baco can therefore be seen as Schneider's most active and most dangerous rival on the French market in control and signalling units.
(770) Analysis of Schneider's internal documents leads to the same conclusion. For example, a confidential Schneider document(281) states that the group's second priority for the period 2000-2003 is [...]*. Baco fits that twin description perfectly, since it generates the bulk of its turnover in France and is particularly well placed in one market segment: cam switches. And, in another confidential Schneider document(282), Baco is presented as a specialist. From this standpoint, irrespective of the reasons behind Schneider's acquisition of Mafelec, Schneider's strategy on the French market for the years ahead was indeed to attack Baco as a matter of priority.
(771) For all the above reasons, the rivalry between Schneider and Legrand is the essential basis for competition on the French market in control and signalling units.
C.4.4 The organisation of the market would not allow buyer power to emerge that could counterbalance the strength of the merged entity
(772) Manufacturers of control and signalling units market their products through two main channels: wholesalers and direct sales.
(773) According to an internal Legrand document, whilst Baco achieves [40-50]* % of its sales of control and signalling units through wholesalers, such sales account for [90-100]* % of Legrand's turnover in those products(283). It can be seen from a Schneider document that Mafelec generates [50-60]* % of its turnover through direct sales whereas [50-60]* % of Schneider products are sold via wholesalers(284).
(774) The parties explain that control and signalling units are distributed by the same wholesalers as the other electrical equipment concerned by the transaction(285). The strength of the new group on the other French electrical equipment markets (see above, in particular Table 30) would therefore place it in a privileged position with regard to sales through wholesalers.
(775) Direct sales are made chiefly to original equipment manufacturers (OEMs) and to a lesser extent to panel builders and installers(286). These consumers would not be able to counterbalance the strength of Schneider/Legrand on the French market, for two sets of reasons.
(776) First, the parties have not given any indication to the effect that one or more of those consumers would represent a large enough fraction of the market to be regarded as wielding genuine buyer power. Even if the parties' direct customers include a few large industrial groups, most of them are large SMEs specialised in the manufacture of industrial machinery.
(777) Second, it could be argued that those consumers could fairly easily change suppliers and therefore stimulate keener competition between them. Assuming that it is easy in practice to change to a different supplier of control and signalling units, the fact remains that the main European producers of control and signalling units (Moeller and Siemens) are already present on the French market and that their shares of that market are particularly small. All the signs are that the strategy adopted by those manufacturers is to benefit from the high prices applied in France by the parties (see above) rather than trying to win market shares from the two dominant players. There are no indications that those competitors will in future reshape their strategy and pricing policy in order to become genuinely active competitors on the market.
(778) In their reply to the statement of objections(287), the parties argue that there is no reason to believe that the parties' direct customers would remain loyal to the merged entity if it were to decide to raise its selling prices. They claim that Schneider and Legrand are currently subject to actual and potential competition from rivals whose products are present in France and neighbouring Member States, and the new entity would in future be exposed to such competition. They also argue that there is no evidence to suggest that in future those rivals would not try to gain market shares, even if they are content at present to take their cue from Schneider. Thus, according to the parties, Moeller mounted a significant attack on a specific market segment, control and signalling units for agricultural machinery, by reducing prices and tailoring the products more closely to customers' needs.
(779) The above line of argument developed by the parties is implicitly based on the idea that barriers to entering the relevant market are not significant and that the parties' rivals would in future be able to exert sufficient actual or potential competitive pressure to prevent the parties initiating profitable price increases. But, as has already been explained earlier, there are significant barriers to entering the market in control and signalling units, in particular access to distribution channels and the need to maintain a close relationship with end customers. The existence of these barriers to entry, as far as the French market is concerned, is reflected in the small market shares held by Siemens and Moeller and the high level of prices for the products concerned, which is not disputed by the parties(288). There are therefore structural factors limiting the intensity of competition on the market for control and signalling units, independently of the behaviour of end customers.
(780) All the above considerations are in line with the statement made in a Legrand internal document(289) that this market is [...]*.
C.4.5 Conclusion
(781) Schneider/Legrand would enjoy substantial advantages over its competitors that would enable it to control competition on the French market in control and signalling units. The new group would consequently be in a position to increase the prices of its products without this leading to losses of market share that would make such price increases unprofitable: faced with such a situation, competitors would be likely to follow the price increase initiated by the market leader rather than trying to gain market shares. It would also be possible for the new group to increase the prices of products sold under only some of its brands so that the fraction of demand that was shifted would switch to its other brands. Lastly, no buyer power would be likely to counterbalance the strength of Schneider/Legrand on the relevant market. The notified transaction would therefore lead to the creation of a dominant position on the French market in the sale of control and signalling units.
D. OVERALL CONCLUSION
(782) For the reasons set out above, the Commission has come to the conclusion that the notified transaction would create a dominant position with the effect of significantly restricting effective competition on the following markets:
- the markets in moulded case circuit breakers, miniature circuit breakers and cabinets for distribution boards in Italy;
- the markets in miniature circuit breakers, earth leakage protection and enclosures for final panelboards in Denmark, Spain, Italy and Portugal;
- the markets in mains connection circuit breakers in France and Portugal;
- the market in cable trays in the United Kingdom;
- the market in sockets and switches in Greece;
- the market in weatherproof wiring accessories in Spain;
- the market in fixing and connecting equipment in France;
- the market in transformation equipment in France;
- the market in control and signalling units in France.
(783) For the reasons set out above, the Commission has also come to the conclusion that the notified transaction would strengthen a dominant position with the effect of significantly restricting effective competition on the following markets:
- the markets in moulded case circuit breakers, miniature circuit breakers and cabinets for distribution boards in France;
- the markets in miniature circuit breakers, earth leakage protection and enclosures for final panelboards in France;
- the market in sockets and switches in France;
- the market in weatherproof wiring accessories in France;
- the market in emergency lighting systems or self-contained emergency lighting units in France.
VI. REMEDIES
A. PROCEDURE
(784) On 14 September 2001 the notifying party offered the Commission commitments (hereinafter the "initially proposed commitments"). These relate to each of the markets referred to in points 782 and 783 above. The Commission carried out a survey among the parties and third parties with a view to assessing those proposed commitments.
(785) The Commission's assessment revealed that the commitments offered by the parties on 14 September were insufficient. The Commission accordingly informed the parties, which in reply submitted alternative commitments on 24 September. This new text is entitled "Schneider Electric Phase II commitments dated 14 September 2001, clarified with alternative solutions on 24 September 2001" (hereinafter the "proposed alternative commitments").
(786) These proposed alternative commitments are to be examined in the light of point 43 of the notice on remedies(290), which lays down stringent conditions for the acceptance of such commitments, in terms of both substance (the Commission must be able to clearly determine, without the need for any other market test, that the modified commitments will resolve the competition problems identified) and form (the modified commitments must be submitted in sufficient time to allow Member States to be consulted).
(787) As explained below, the Commission finds that the proposed alternative commitments do not fulfil the conditions set out in point 43 of the notice on remedies.
B. ANALYSIS
The markets in distribution boards and final panelboards and components thereof in Denmark, Spain, France, Italy and Portugal
The initially proposed commitments were insufficient
(788) The initially proposed commitments concerned the following business units: "Legrand Puissance" (distribution boards in France, Legrand group), "Bticino Puissance" (distribution boards in Italy, Legrand group), "Legrand Lexic" (final panelboards in France, Spain, Portugal and Denmark, Legrand group), "Multi 9" (final panelboards in Italy, Schneider group) and the Baco company (earth leakage protection, Legrand group). The parties proposed (i) to transfer brand names in Europe and the Sarel and Saip brands in Italy; (ii) to offer an option for the temporary use (for three years) of the Legrand Puissance, Bticino Puissance, Legrand Lexic and Merlin Gerin Modulaire brands; (iii) to transfer the plant manufacturing the key products for distribution boards (moulded case circuit breakers), a plant producing distribution board cabinets for the Italian market, a plant producing miniature circuit breakers located in [...]* and a plant to be set up in the region of [...]* to produce enclosures and other components for final panelboards (the latter not being intended for the Italian market in final panelboards); (iv) to share the use of intellectual and industrial property rights; and (v) to offer sales forces and sales contracts with wholesalers, such marketing rights being exclusive in the territories in respect of which objections were raised and non-exclusive for the rest of Europe as far as the Legrand Puissance, Bticino Puissance and Legrand Lexic proposals were concerned.
(789) The Commission's assessment showed that this proposal raised serious doubts as to the autonomy and ability to compete of the entities which the parties had proposed to divest: those doubts were largely due to the fact that most of the entities proposed for divestiture did not previously operate on a stand-alone basis.
(790) In the first place, Schneider/Legrand would have at least partly retained ownership of and access to all the technologies used by the proposed entities. This was no doubt justified in its view by the fact that it was to retain both the same businesses based on the same technologies outside Europe and the Bticino brand final panelboard and final panelboard components business in Europe, as well as the Merlin Gerin business outside Italy. The parties undertook not to compete with the divested entity on the relevant markets concerned by offering the same products. However, in the absence of any definition of what constituted the "same products", all Schneider/Legrand would have needed to do was to develop Legrand's initial technology in order to be able to offer products in competition with those divested. The divested entity would furthermore have immediately had to face competition from identical Schneider/Legrand products on the European markets in respect of which no objections were raised by the Commission. The brand image and competitiveness of the divested businesses would consequently have been weakened by the supply of "clones", and this would have threatened the viability of some of the divested businesses.
(791) In addition, the fact that Schneider/Legrand was to keep businesses based on identical products to those divested would have given rise to major problems, with special reference to the economic competitiveness of the production plants which the parties proposed to divest.
(792) On the one hand, the parties proposed to retain plants manufacturing identical products to those divested. Since production had been optimised at European level by Legrand, that would have meant reorganising production between the divested plants and those that were to remain within Schneider/Legrand. According to the parties, such a reorganisation would have cost [...]* and taken over [...]*. Plants [...]* manufacturing other items as well as the products in question would also have had to be reorganised; according to the parties, such a reorganisation [...]*.
(793) On the other hand, the divested production plants would have had to continue supplying substantial quantities to Schneider/Legrand to enable it to continue selling the products concerned on the markets on which it kept marketing rights (both within Europe and elsewhere). Between [20 and 60]* % of the output of those plants would thus have been sold to Schneider/Legrand and their viability would therefore have depended largely on sales to Schneider/Legrand. Conversely, the purchaser of the proposed entity would have had to continue sourcing supplies from plants kept by Schneider/Legrand (in particular a plant in Naples) until production lines had been relocated among those different plants.
(794) Lastly, the parties proposed to hive off separately the company Baco, which has a production plant that would have had to supply (with earth leakage switches) the purchaser of the Legrand Puissance, Bticino Puissance and Legrand Lexic businesses and provide it with components so that one of the divested plants could continue to produce earth leakage circuit breakers. Here, fulfilment of the commitments would therefore have depended on the good will of a third party.
(795) As regards the proposal concerning final panelboards in Italy, the majority of the third parties surveyed voiced serious doubts as to the intrinsic merits of the offer. In the first place, apart from the Sarel and Saip brands, this commitment clearly fell far short of the (insufficient) proposal concerning the other switchboard markets described above. The proposal therefore gave rise to the same doubts as those set out above, with additional handicaps.
(796) It should be stressed that Schneider/Legrand would have remained present on the distribution board market in Italy, via the Merlin Gerin brand. In addition to the confusion of brand image and the need to coordinate marketing strategies on very closely neighbouring markets, distribution boards account for 78 % of sales of products in the Multi 9 range. Since sales of these products (miniature circuit breakers) are driven commercially by sales of moulded case circuit breakers (remaining in the hands of Merlin Gérin), the bulk of the purchaser's sales would therefore have been entirely dependent on Schneider/Legrand.
(797) The additional handicaps also have to do with the fact that no production capacity or intellectual and industrial property rights would have been transferred: Schneider would have continued to sell identical products outside Italy using the Merlin Gerin brand and the Multi 9 range name and would have been entirely free to develop those products as it wished, without taking account of the purchaser's specific needs. In addition, the scope of the non-competition clause did not clearly rule out possible further development of the products hived off, which could have allowed earlier market re-entry. The result would have been that the purchaser would have in a way been a reseller of Schneider products over which it had no production or technological control. If the purchaser wished to establish a long-term independent position on the market, it would therefore have had to produce its own switchboards. Since the barriers to entry are too high, the purchaser could therefore only have been a player already present on the market. Such a player would consequently have had in a short space of time to (i) change brands; (ii) adjust production capacities earmarked for the Italian market; and (iii) persuade the market that the change of brand and technology did not jeopardise the reliability and quality of its products.
(798) The proposals concerning Sarel and Saip raised specific problems too. The Sarel brand, which in fact markets the Multi 9 product range, would have been shared between the purchaser of this business, the purchaser of the sockets and switches business in France and Schneider/Legrand as regards the all-purpose cabinets business (see below). That would have created uncertainty concerning the value of the brand. The Saip brand exists, as far as final panelboards are concerned, only for enclosures; it is apparently also used on other low-voltage product markets in Italy. The parties proposed transferring production equipment without transferring a plant: that would have created further uncertainties regarding the need to set up a new production plant.
(799) In terms of market access, the parties' initial proposal raised numerous uncertainties.
(800) First of all, whereas strong brand loyalty is a feature of all the relevant markets, the proposed remedy did not involve the transfer of any brand but rather the transfer of names of product ranges together with the possibility of displaying the Legrand brand on the products sold for a limited period of time. The purchaser of these businesses would therefore have had not only to cope with the technical uncertainty (with the associated time and cost) of modifying the production facilities transferred, but also to bear the substantial costs of changing the brand of its products while endeavouring to reassure the market that all these simultaneous changes would not affect the quality and reliability of its product range. The Commission's assessment confirmed that it was a disadvantage not to have one's own brand from the outset and revealed that a purchaser would need a lengthy period of time (around seven years) in order successfully to implement the proposed brand changeover. The Commission's assessment also demonstrated that a purchaser would have had to be protected by clauses preventing re-entry into the relevant markets under the initial brand for a period of more than 10 years.
(801) Secondly, the parties' proposal suffered from the centralisation of certain functions (such as sales, marketing and logistics) within the Legrand group. The initially proposed commitments did not cover marketing and logistics functions and included a very small number of sales forces [...]*. No specific proposal was made with regard to Legrand Lexic's sales forces outside France. The numbers involved included "dedicated" sales staff and employees partly in charge of such sales, and the selection criteria were not spelled out. Since the proposal did not concern all sales staff, Legrand and Schneider would have retained a link with customers. That link would have been particularly strong on markets where Legrand also sells wiring accessories (sockets, etc.) and holds strong positions. This would therefore have enabled the merged entity to redirect its customers towards switchboard products remaining within the perimeter of Schneider/Legrand. As far as the central functions (and related information systems) are concerned, the Commission's assessment showed that a transfer without such functions was feasible but involved significant risks.
(802) Thirdly, the parties offered to transfer sales contracts with wholesalers. The Commission's assessment called into question the ability of purchasers to take advantage of sufficient access to wholesalers (i.e. access on equivalent terms to those previously enjoyed by the hived-off entities). For example, the parties offer discounts [...]*. According to the parties, these discounts amount to around [0-10]* %. It is by no means certain that a purchaser would have been able to match those discounts given that in relative terms it would have been much smaller than Schneider/Legrand. If it was unable to offer similar terms, wholesalers would then have been able to choose to continue to benefit from the preferential conditions they already obtained from Schneider and Legrand. This would not necessarily have ruled out any purchasers but rather called into question their ability to restore competitive conditions equivalent to those enjoyed by the divested entity when it belonged to Schneider or Legrand.
(803) This problem was particularly acute in France, where Schneider is already dominant on the switchboard markets (with shares of around [40-70]* % of the distribution board market and around [40-70]* % of the final panelboard market) and Legrand is already dominant on most of the other low-voltage equipment markets (with, for example, a [70-100]* % share of the sockets and switches market). As explained in the statement of objections (a finding which the parties did not dispute), the combination of the two companies would place them in a preponderant position with regard to wholesalers since they would account for between [30 and 60]* % of the latter's total purchases in France. The proposed commitments would admittedly have weakened that combined position with regard to wholesalers but the new entity would have remained dominant on most of the relevant markets and would have retained its preponderant position. Being an indispensable partner for wholesalers, Schneider/Legrand would then have been in a position to control the access to wholesalers of the purchaser of the Legrand Puissance, Bticino Puissance and Legrand Lexic businesses, for example by ensuring that such access did not enable the purchaser to exert active competitive pressure equivalent to that previously exerted by Legrand.
(804) To sum up as regards the proposed commitments relating to the markets for distribution boards and components thereof in France and Italy and the markets for final panelboards and components thereof in Denmark, Spain, France, Italy and Portugal, the remedy proposed by the parties could be regarded as a mixture of businesses resulting from uncertain divestitures from their original group, whose ability to operate on a stand-alone basis and as a competitive force capable of restoring the initial competitive conditions raised serious doubts.
The proposed alternative commitments submitted on 24 September 2001
(805) In response to the serious doubts raised by the Commission concerning the effect of the initially proposed commitments, the notifying party offered to divest [...]*. The proposal also involved temporary transfer of the [...]* brand throughout Europe, the sale of an additional production plant [...]* and additional relocations of production plants [...]*. In other words, the parties offered to divest [...]*.
(806) This proposal offered the advantage of clearly eliminating [...]* overlaps between businesses on all the markets where the notified transaction would lead to the creation or strengthening of dominant positions; however, it did not resolve a number of doubts and risks to do with the fact that the proposed entity would not have been fully functional and able to operate on a stand-alone basis.
(807) First, this alternative proposal raised the same issues of exhaustivity and separation of [...]* as the initial proposals. As explained above, certain central functions (marketing, sales support, relations with distributors, logistics, etc.) would not have been transferred in their entirety. Also, like the initial proposal, the alternative proposal did not cover all the sales forces concerned, and the problems to do with sharing of the brand remained.
(808) Second, the alternative proposal involved relocating production activities between plants. For example, [...]*. Likewise, the [...]* production lines were to be transferred to the production plant at [...]*. And, as before, [...]* were to be grouped together [...]* in one or two units. These relocations raised doubts as to the continuity of the operations concerned, both because of the industrial uncertainties inherent in such transfers and on account of the losses of know-how [...]*. Furthermore, the Commission was not in a position to assess whether the receiving plants were able to host the new activities concerned in a competitive manner (space available, production costs, availability of supplies, etc.).
(809) Third, the alternative proposal was confined to Europe, although the industrial sites concerned generated a [...]* share of their turnover from exports from Europe. Under the proposed remedies those sales outside Europe would remain in the hands of Schneider/Legrand. The parties thus drew the Commission's attention to the fact that, out of total sales of EUR [300-500]* million, the proposed entity currently generated turnover amounting to EUR [50-250]* million outside Europe. This meant that all the production plants proposed for divestiture would continue to supply Schneider/Legrand with quantities corresponding on average to around a quarter of their current output. Such dependence would, for example, be particularly marked in the case of the [...]* plant, more than [40-70]* % of whose output is thought to be sold outside Europe. To overcome this problem, the parties proposed [...]*. In either case, the effect would be either immediately or in the long run to restrict the output of the plants concerned and consequently to increase their unit costs; such an increase in unit costs would harm their competitiveness in terms of profit margins. The effects of a loss of competitiveness among the production plants of the divested entity would vary from one country to another: on the French markets where Schneider is already dominant the impact would be serious, while on the Italian market for final panelboards the size of the market shares divested would be such that the loss of competitiveness could be made up.
(810) In addition to the problems discussed above, the alternative proposal did not solve the market access difficulties that had been identified, particularly in France. The market access conditions which Legrand enjoyed before the transaction reflected not only its standing in the switchboard stakes (relatively modest in comparison with Schneider, particularly in the case of distribution boards), but also its considerable strength on the markets in wiring accessories (sockets, switches, etc.). The Commission's assessment established that no other operator on the market is able to offer wholesalers conditions comparable to those granted by Legrand (dominant in equipment downstream of the final panelboard) and Schneider (dominant in switchboards). It follows that the purchaser of the business would not have been able to benefit from the terms granted by the wholesalers [...]* for the products concerned, a fact which (according to the Commission's assessment) could have significantly affected the purchaser's competitiveness. This risk would have been particularly acute in view of the fact that once the merger had gone ahead the purchaser would have had to face an entity combining the strengths of Schneider and Legrand.
(811) In France, the Commission has concluded that the transaction would lead to the strengthening of Schneider's dominant position on the markets for distribution boards and final panelboards. As set out above in the sections dealing with the competitive analysis of the proposed merger, such strengthening would be the result of two factors in particular: the addition of Legrand's market shares to Schneider's (an addition that would have been eliminated under the alternative proposal) and the strengthening of Schneider's position with respect to electrical equipment distributors as a result of the addition of Legrand's sales and leading position in equipment downstream of the final panelboard. As explained above, the purchaser of the proposed business would be far from being able to reproduce the competitive pressure which Legrand exerted on Schneider (all the more so with regard to a new combined Schneider/Legrand entity). In these circumstances, the proposed commitments would not eliminate the anticompetitive effects of the transaction on the markets concerned.
(812) To sum up, the notifying party's alternative proposal would not eliminate all the risks created by the initial proposal (some of which could on their own jeopardise the effectiveness of the remedy) and would not overcome the objections raised with regard to the markets in switchboards and switchboard components in France. In any event, the proposal did not allow the Commission to assess the acceptability of the commitments offered without a further market test (ruled out at that stage in the procedure).
The markets in mains connection circuit breakers in France and Portugal
(813) The initially proposed commitment was to divest the company Baco in its entirety, including all its tangible and intangible assets, employees and sales contracts. Baco is also active in the earth leakage switches and control units sectors; its products are marketed under the Baco and Legrand brands and they are manufactured in a plant in Strasbourg.
(814) The proposed commitment would eliminate the competitive overlap with the Schneider group on the mains connection circuit breaker markets. Baco is furthermore a fully functional undertaking which operates on a stand-alone basis. However, as stated earlier, part of Baco's production is interdependent with Legrand's other switchboard business. In particular, a quarter of Baco's turnover is generated through subcontracting for the rest of the Legrand group. The Commission's assessment therefore demonstrated that Baco should be sold along with Legrand's switchboard business. It also revealed that, subject to that condition, the parties' proposal enabled the competition difficulties on the French and Portuguese mains connection circuit breaker markets to be overcome.
(815) The parties' alternative proposal was to cut off Baco's supplies to the remainder of Legrand under [...]* and left open the possibility of divesting it together with [...]*. The fact remains that any sale of Baco should go hand-in-hand with the sale of the rest of the switchboard business, and the proposal was consequently unacceptable as it stood.
The market in control and signalling units in France
(816) The proposed commitment was to divest Baco. The proposed commitment would eliminate the competitive overlap with the Schneider group on the French control and signalling units market. The above comments on Baco apply here too.
The market in sockets and switches in France
The initially proposed commitments were insufficient
(817) The initial proposal was to divest the Alombard and Scanelec companies, both of which are Schneider subsidiaries. Alombard is specialised in the manufacture of sockets and switches, but is also present on the fixing and connecting equipment market; it has its own production and R& D facilities in Orléans. The proposed commitment related to all of Alombard's tangible and intangible assets. Scanelec's business is the sale of equipment downstream of the final panelboard to hypermarkets. The proposed commitment related to all of Scanelec's tangible and intangible assets.
(818) The Commission's assessment revealed that this proposal would not have been likely to restore effective competition on the relevant markets.
(819) In the first place, of the product ranges sold by Alombard, its own ranges are regarded as obsolete by the market; the other ranges were developed by other entities belonging to the Schneider group (which would not be transferred).
(820) These divestiture proposals furthermore raised serious doubts as to the autonomy of the two entities concerned given their current integration into the Schneider group. Alombard sources most of its components from other companies in the Schneider group. Unless it was to remain dependent on Schneider/Legrand, a purchaser would therefore have had to launch new product lines in order to integrate Alombard into its structure, which would have taken between one and two years and required substantial investments. Alombard's sales forces and a number of its central functions were furthermore to be [...]*. A purchaser would therefore also have had to re-establish the sales forces and replace its central functions.
(821) Scanelec sources exclusively from the Schneider group, sells products under the Schneider brands and [...]* of its workforce is under contract with Schneider. It is difficult to imagine the company surviving without the backing of the Schneider group for a substantial period of time; however, Scanelec and Alombard would have to be sold together because they each account for [10-30]* % of the other's business. The Commission's assessment confirmed this analysis.
(822) Lastly, Alombard and Scanelec account for only a small share of the French sockets and switches market (around [0-10]* %), as against around [80-100]* % for the merged entity. In the light of Schneider/Legrand's leading position with regard to French wholesalers on all the markets in low-voltage electrical equipment, it was highly unlikely that the divested entity would have been able to exert competitive pressure comparable to that brought to bear by the Schneider group (which could use its strength in the switchboards sector in order to encourage wholesalers to sell its sockets and switches).
(823) In conclusion, the proposed commitment involving the divestiture of Scanelec and Alombard would not have enabled the initial competitive conditions to be restored.
The proposed alternative commitments submitted on 24 September 2001
(824) The alternative commitments involved [...]*. According to the information supplied to the Commission [...]*.
(825) The effect of the alternative proposal would therefore have been to eliminate more than the competitive overlap between Schneider and Legrand; however, it raised two important issues.
(826) The first issue relates to the competitiveness [...]*. In particular, [...]* generates a significant proportion (20-30 %) of its turnover from supplies of components to other branches [...]*. The parties proposed hiving off this supply business before divesting [...]*, but doubts remained as to the impact of such a separation on [...]*'s profitability and on the competitiveness of its range. A precise analysis of these questions would have required a new market test.
(827) Furthermore, before the transaction, Legrand was dominant on the French sockets and switches market (with a total market share of [80-90]* % [...]*). Its main competitor was Alombard (0-10]* %), which had the backing of the Schneider group (both in terms of products, via Lexel, and in terms of access to wholesalers). After the merger and the fulfilment of the commitment, the situation would be [...]*. The new entity would be unlikely to be able to hold on to those market shares. First, Schneider states in its internal documents that it was aiming for a market share of around [10-20]* % for [...]*; the effect of the merger would be to remove that impetus. Second, Schneider/Legrand would be able to achieve the same brand differentiation effect [...]* as it previously exerted on the market and confine [...]*. Consequently, in view of the size of Legrand's dominant position prior to the merger, the fact that the merged entity would continue to hold two main brands (Legrand and [...]*) and the fact that the new entity would be an indispensable partner for wholesalers, the question is whether divesting [...]* would make it possible to restore a situation comparable to that obtaining prior to the transaction.
(828) The Commission considers that, [...]*, that would not be the case. For one thing, as stated in connection with final panelboards, it is not certain that the purchaser could obtain access to distributors on conditions comparable to those enjoyed by [...]*. This problem would be particularly acute because once the merger went ahead, Legrand's strengths would be added to Schneider's, and this could significantly affect the competitive strength that could be wielded by [...]* after the merger. For another thing, [...]* would be confronted by the merged entity, which would have a range of wiring accessories at least comparable to its own and would benefit from the combination of the two brands (Legrand and [...]*). This could enable the merged entity to undertake specific measures against [...]*.
(829) In conclusion, the Commission has serious doubts as to the ability of the alternative proposal to reproduce the competitive pressure existing prior to the merger and eliminate its anticompetitive effects on this market. In any event, the Commission cannot accept the new proposal without a further market test (ruled out at this stage in the procedure).
The market in sockets and switches in Greece
The initially proposed commitments were insufficient
(830) The initial proposal was to transfer to Alombard (see above) the exclusive distribution contract concluded by Elko, a Schneider subsidiary, with the Greek company [...]* for importing sockets and switches into Greece.
(831) The Commission's assessment shows that the actual feasibility of such a transfer is uncertain both legally and from a technical and commercial standpoint. The socket and switch standard used in Greece (Schuko) differs from the one used in France (the Franco-Belgian standard), where Alombard makes nearly all its sales; the Alombard brand is currently unknown in Greece, and the third parties surveyed expressed serious doubts as to its ability to restore the competitive pressure previously exerted by Elko; and, lastly, there is no evidence to suggest that the Greek importer would agree to such a transfer.
The proposed alternative commitments submitted on 24 September 2001
(832) The alternative proposal was to [...]* and to allow [...]* the possibility of using the [...]* brand in Greece. This proposal raises the same uncertainties as the initial offer, however. In particular, [...]*. It is by no means certain that the purchaser [...]* would wish to invest in a production line for manufacturing Schuko sockets for which it could be offered only a modest outlet (Greece).
(833) The Commission therefore takes the view that these commitments do not resolve the competition difficulties identified on the Greek sockets and switches market. In any event, the Commission cannot accept the new proposal without a further market test (ruled out at this stage in the procedure).
The market in weatherproof wiring accessories in France
(834) The proposed commitment was to divest Sarel's "installation products" business. Sarel has a division producing enclosures for industrial automation equipment and a division producing "installation products" (weatherproof sockets and switches and fixing and connecting equipment). [...]*.
(835) The proposed commitment involved divesting all of Sarel's tangible and intangible assets linked to its "installation products" business and transferring the Sarel brand for that product category. The merged entity would retain Sarel's enclosures business and ownership of the "Sarel enclosures" brand.
(836) Sarel's "installation products" business accounts for [...]* of Schneider's turnover on the French weatherproof wiring accessories market. The proposed commitment would therefore eliminate all the competitive overlap on that market.
(837) The results of the Commission's assessment were mixed as to the sharing of the Sarel brand and the hiving-off of this business (splitting off the production plants and more generally the all-purpose enclosures business, which would remain within Schneider, from the wiring accessories business, which would be transferred). In any event, this proposal raises the same difficulties as those concerning switchboards in France or the sockets and switches markets with regard to the purchaser's ability to restore the competitive conditions obtaining prior to the merger.
The market in weatherproof wiring accessories in Spain
(838) The proposed commitment (which was not modified) was to transfer to Sarel's "installation products" manufacturing business (which was also to be divested - see above) the Estanca 55 brand used in Spain by the Schneider subsidiary Eunea Merlin Gerin for marketing weatherproof wiring accessories. Eunéa Merlin Gerin accounts for the whole of Schneider's business on the relevant market.
(839) The proposed commitment relates only to the manufacture of the products and the specific brand name (Estanca 55) under which they are sold in Spain. On the other hand, it does not comprise the transfer of goodwill (sales forces not specified and which do not appear [...]*) or of the umbrella brand (Eunea Merlin Gerin), which could therefore be re-used by the merged entity in order to market a new range of products of Legrand origin. The assessment showed clearly that, without the backing of a group of comparable weight to Schneider in Spain, this product range would not be able to secure access to distribution channels on competitive terms.
The market in fixing and connecting equipment in France
(840) The proposed commitment was to divest separately [...]* and Sarel's "installation products" business. These divestitures would completely eliminate the competitive overlap on the French fixing and connecting equipment market, on which Legrand had a dominant position. This proposed commitment does not call for any comments other than those set out above in connection with the French sockets and switches market.
The market in emergency lighting systems in France
(841) The proposed commitment was to transfer Schneider's emergency lighting business to the entity purchasing Sarel's "installation products" business (which was the subject of another proposed commitment - see above). Schneider does not have any plant manufacturing products of this type, which it sources from a third party. The supply contract would also be transferred to the purchaser. Emergency lighting systems are marketed by Schneider under the Merlin Gerin brand. The Sarel brand is not currently used to market products of this type.
(842) The parties also offered to transfer Lumatic's goodwill, including the Lumatic brand, to the purchaser of Sarel's "installation products" business. Lumatic was an independent company marketing its products under that brand and now belongs to a Legrand subsidiary, URA/Lumatic, specialised in emergency lighting systems. The withdrawal of the Lumatic brand in the course of 2001 and its replacement by the URA brand was, however, decided by the Legrand group back in 2000.
(843) The assessment of the initial proposal showed that replacement of the Merlin Gerin brand by the Sarel brand (non-existent on this market) and/or the Lumatic brand (being phased out) would not enable the initial competitive conditions to be restored on this market (on which Legrand enjoys a dominant position with a market share of over [40-60]* %).
(844) In the proposed alternative commitments, the notifying party offered to transfer to [...]* the marketing of the self-contained emergency lighting units currently sold by Merlin Gerin. [...]*, the Commission has serious doubts as to this proposal: the questions concerning access to distribution channels and the ability to restore conditions of effective competition are identical to those set out above for the other switchboard and accessories markets in France. Neither would such a remedy provide any guarantee as to the incentives for the purchaser [...]* to develop competition on the relevant market. In any event, the Commission cannot accept this proposal without a further market test (ruled out at this stage in the procedure).
The market in low-voltage transformers in France
(845) The proposal contained two alternatives. The parties first offered to transfer the goodwill of Schneider's low-voltage transformer business to its existing supplier, Murelektronic. Schneider markets these products under the Télémécanique brand. The proposed commitment therefore involved maintaining the Murelektronic products already present in Télémécanique's sales catalogue but marketing them under the Murelektronic brandname.
(846) Alternatively, the notifying party offered to transfer the supply contract between Schneider and Murelektronic to Baco (which was the subject of another proposed commitment - see above).
(847) The increase in market share would not be eliminated by the first alternative. As regards the second alternative, while transferring the distribution contract to Baco would have the advantage of eliminating the increase in market share, it would nevertheless require a new brand to be launched, which raises uncertainties as to the viability and ability to restore competitive conditions of the proposed commitments. It is likewise doubtful whether Murelektronic could act independently of Schneider, which markets most of its production, given that, by the parties' own admission, Murelektronic would disappear if Schneider stopped distributing its products. Neither would such a remedy provide any guarantee as to the incentives for Baco's purchaser to develop competition on the relevant market.
The market in cable trays in the United Kingdom
(848) The proposed commitment involved, as part of the termination of the sales contract whereby Métal Déployé supplied Cablofil products to Mita, transferring to Métal Déployé the goodwill and sales forces which Mita, a Schneider subsidiary, assigned to the sale of those products. The notifying party would also undertake not to begin marketing this category of products again for a period of five years. The sale of Cablofil products accounts for around [50-70]* % of Schneider's turnover on the relevant market.
(849) Given the generally moderate positions held by Schneider and Legrand in the United Kingdom, it is likely that the significant reduction in market share together with a non-competition clause could resolve the competition problem identified on this market.
C. CONCLUSION
(850) The assessment clearly demonstrated that the initial proposal was insufficient, both with regard to the question whether the proposed entities would be fully functional and able to operate on a stand-alone basis and in terms of the risks threatening the divested entities' access to the market. The parties' proposed alternative commitments go only a small way towards eliminating the risks raised by the initial proposal; they cannot therefore be accepted as they stand. The proposed alternative commitments (i) are still signally insufficient on certain markets, such as the market in sockets and switches in Greece, the market in weatherproof wiring accessories in Spain, the market in low-voltage transformers in France and the market in emergency lighting (or self-contained emergency lighting units) in France; (ii) raise a significant number of serious doubts as to the viability of the divested entities; and (iii) do not allay serious doubts as to those entities' ability to maintain their current position and restore conditions of effective competition on the relevant markets. The last two points apply to all the relevant markets, with the exception of the United Kingdom cable tray market. In addition, the new commitments offered in the proposed alternative commitments (in particular those relating to switchboards and ordinary sockets and switches) cannot in any event be accepted by the Commission without a further market test, something which is ruled out by point 43 of the Commission notice on remedies.
VII. OVERALL CONCLUSION
(851) For the reasons set out above, the notified merger would lead to the creation or strengthening of dominant positions with the effect of significantly restricting effective competition. The proposed commitments do not allow the Commission to find that they would make the merger compatible with the common market and the functioning of the EEA Agreement. The Commission accordingly finds that the notified merger is incompatible with the common market and the functioning of the EEA Agreement.
HAS ADOPTED THIS DECISION:
Article 1
The concentration notified to the Commission by Schneider on 16 February 2001, which would enable it to acquire sole control of Legrand, is hereby declared incompatible with the common market and the functioning of the EEA Agreement.
Article 2
This Decision is addressed to:
SCHNEIDER ELECTRIC S.A. 43-45, boulevard Franklin Roosevelt F 92500 Rueil-Malmaison France
Done at Brussels, 10 October 2001.
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Commission Regulation (EC) No 2031/2002
of 15 November 2002
authorising transfers between the quantitative limits of textiles and clothing products originating in Macao
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3030/93 of 12 October 1993 on common rules for imports of certain textile products from third countries(1), as last amended by Commission Regulation (EC) No 797/2002(2), and in particular Article 7 thereof,
Whereas:
(1) Article 7 of the Agreement between the European Economic Community and Macao on trade in textile products, initialled on 19 July 1986 and approved by Council Decision 87/497/EEC(3), as last amended by an Agreement in the form of an Exchange of Letters, initialled on 22 December 1994 and approved by Council Decision 95/131/EC(4), provides that transfers may be agreed between categories and quota years.
(2) Macao submitted a request for transfers between quota years on 10 August 2002.
(3) The transfers requested by Macao fall within the limits of the flexibility provisions referred to in Article 7 of Regulation (EEC) No 3030/93 and set out in Annex VIII thereto.
(4) It is, therefore, appropriate to grant the request.
(5) It is desirable for this Regulation to enter into force on the day after its publication in order to allow operators to benefit from it as soon as possible.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Textile Committee set up by Article 17 of Regulation (EEC) No 3030/93,
HAS ADOPTED THIS REGULATION:
Article 1
Transfers between the quantitative limits for textile goods originating in Macao fixed by the Agreement between the European Community and Macao on trade in textile products are authorised for the quota year 2002 in accordance with the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 November 2002.
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Commission Regulation (EC) No 486/2002
of 18 March 2002
amending Regulation (EC) No 2848/98 on the raw tobacco sector as regards the setting of certain time limits
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2075/92 of 30 June 1992 on the common organisation of the market in raw tobacco(1), as last amended by Regulation (EC) No 1336/2000(2), and in particular Article 11 thereof,
Whereas:
(1) In the absence of a Council decision on the Commission proposal(3) intended to set the maximum guarantee thresholds for the 2002, 2003 and 2004 harvests, for the 2002 harvest the Member States cannot meet the time limits for issuing quota statements to producers or those for concluding cultivation contracts fixed by Commission Regulation (EC) No 2848/98 of 22 December 1998 laying down detailed rules for the application of Council Regulation (EEC) No 2075/92 as regards the premium scheme, production quotas and the specific aid to be granted to producer groups in the raw tobacco sector(4), as last amended by Regulation (EC) No 1441/2001(5). Those time limits must therefore be postponed.
(2) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Tobacco,
HAS ADOPTED THIS REGULATION:
Article 1
Article 55 of Regulation (EC) No 2848/98 is replaced by the following: "Article 55
1. For the 2002 harvest, notwithstanding Article 22(3), the Member States shall issue quota statements to individual producers who are not members of a group and to producer groups by 30 April 2002.
2. For the 2002 harvest, not withstanding Article 10(1), cultivation contracts must be concluded, except in cases of force majeure, by 30 June 2002."
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 March 2002.
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COMMISSION REGULATION (EC) No 475/2007
of 27 April 2007
fixing the export refunds on malt
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)
Article 13 of Regulation (EC) No 1784/2003 provides that the difference between quotations or prices on the world market for the products listed in Article 1 of that Regulation and prices for those products within the Community may be covered by an export refund.
(2)
The refunds must be fixed taking into account the factors referred to in Article 1 of Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules under Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals (2).
(3)
The refund applicable in the case of malts must be calculated with amount taken of the quantity of cereals required to manufacture the products in question. The said quantities are laid down in Regulation (EC) No 1501/95.
(4)
The world market situation or the specific requirements of certain markets may make it necessary to vary the refund for certain products according to destination.
(5)
The refund must be fixed once a month. It may be altered in the intervening period.
(6)
It follows from applying these rules to the present situation on markets in cereals, and in particular to quotations or prices for these products within the Community and on the world market, that the refunds should be as set out in the Annex hereto.
(7)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on malt listed in Article 1(c) of Regulation (EC) No 1784/2003 shall be as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 1 May 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 April 2007.
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*****
COMMISSION DECISION
of 9 July 1987
on the setting-up of a venture jointly owned by Redland plc, AAH Holdings plc and British Coal Corporation
(Only the English text is authentic)
(87/412/ECSC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Articles 66 and 80 thereof,
Having regard to Decision No 24-54 of 6 May 1954 laying down in implementation of Article 66 (1) of the Treaty a Regulation on what constitutes control of an undertaking (1),
Having regard to the application filed on 16 December 1986 by the British Coal Corporation on behalf of all three parties, seeking authorization for merging some of their solid and liquid fuel interests into a new company jointly owned by Redland plc as to 55 %, AAH Holdings plc as to 25 %, and British Coal Corporation as to 20 %, which will be called British Fuels Limited.
Having obtained the comments of the United Kingdom Government,
Whereas:
I
1. AAH Holdings plc (AAH), Lincoln, is a holding company for a group principally engaged in fuel distribution, builders' supplies, distribution of pharmaceutical products, road haulage, general engineering and environmental and agricultural services. All activities are vested in independent, both wholly- and partly-owned subsidiaries. Among these is the British Fuel Company (BFC), which is owned in partnership with the British Coal Corporation (the former National Coal Board) and is engaged in fuel distribution. Apart from its holding in BFC, AAH has no further interests in the fuel distribution business. On account of its holdings in BFC and some subsidiaries under the BFC umbrella engaged in the distribution of solid fuels, AAH is an enterprise subject to the ECSC Treaty pursuant to Article 80 of the ECSC Treaty.
2. The British Coal Corporation (British Coal) is the leading producer and supplier of solid fuels in the United Kingdom, both directly and through distributors. In 1985/86 United Kingdom coal consumption of 121,4 million tonnes compares with British Coal's total sales of 111,8 million tonnes. British Coal is therefore an enterprise within the meaning of Article 80 of the Treaty. Among other subsidiaries and holdings, British Coal has a minority stake in the BFC.
3. The British Fuel Company (BFC) is a partnership owned jointly by AAH as to 50,25 % and British Coal as to 49,75 %, carrying on for a number of years solid and liquid fuel distribution ('fuel businesses'), road haulage, builders' supplies ('non-fuel businesses') and related businesses. The tonnage of solid fuel handled by the partnership, which operates through a number of subsidiaries, amounted to about 3,1 million tonnes per annum on average over the last three years.
4. The Redland plc group is a holding company principally engaged in the production and supply of materials and services to the construction industry in the United Kingdom and overseas, and solid and liquid fuel distribution in the United Kingdom. Its fuel distribution and related businesses are carried on through various subsidiaries known as the 'Cawoods companies', which are held by Cawoods Holdings Ltd; among these are: Cawoods Coal Ltd, Cawoods Hargreaves Ltd (a 50 % joint venture with Hargreaves Group plc, now controlled by the Coalite Group), Cawoods of Northern Ireland Ltd, and some Eire associates. On average over the last three years, the tonnage of solid fuel handled by the Cawoods companies of Redland plc amounted to about 3,2 million tonnes per annum. On account of the activities carried on through the Cawoods Companies, Redland plc is an enterprise subject to the ECSC Treaty pursuant to Article 80.
5. The new company, British Fuel Limited (BFL), will be principally concerned with continuing and developing the existing solid and liquid fuels distribution businesses presently conducted separately by the Cawoods companies and BFC. The joint venture will emerge from the amalgamation of BFC (with British Coal's and AAH's current fuel distribution interests combined) with the Cawoods companies. First it is necessary, however, to restructure legally the respective businesses in such a way as to ensure that, in principle, all assets to be amalgamated concern exclusively fuel businesses. These restructuring measures within groups are not at issue in this case. What is at issue are the effects on competition of the new
company, in which, after completion, the shares will be held 55 % by Redland plc, 25 % by AAH and 20 % by British Coal. Under the merger only British Coal will continue to be engaged in fuel distribution outside BFL.
II
6. The setting-up of the joint venture brings about a concentration in the form of control by a group. The agreements on the shareholdings in BFL and the management of the company mean that the three shareholders will be able to exercise joint control over the company within the meaning of Decision No 24-54. The joint company will therefore from a concentration with Redland plc, AAH plc and British Coal Corporation and the firms they control within the meaning of Article 66 (1) of the Treaty, without the three parent companies themselves forming a concentration.
Concentrations of this nature may be authorized if the Commission is satisfied that they will not lead to certain restrictions of competition.
7. The present share of BFC in the United Kingdom coal market amounts to roughly 85 %. It includes, with AAH having no other interests in fuel distribution, by virtue of British Coal's holding in the partnership, British Coal's own distribution business. It reflects the outstanding position of British Coal. Indeed, British Coal is the main producer in the United Kingdom and its supplies to the market should basically be considered as distribution of coal and its derivatives such as coke and briquettes. The reason for this is that, in principle, British Coal sells not only through all interested distributors who satisfy the normal standards of credit-worthiness and agree to make payment by the dates specified in its Conditions of Sale, but also to a large extent directly to consumers, itself acting as wholesaler.
8. The proposed transaction entails a change in the structure of the coal-connected distributive trade in that the market share held hitherto by BFC as defined in the previous paragraph will be increased by that of the Cawoods companies, i.e. around 3,2 million tonnes annually. This means that the share of the new company will amount to about 87 % of the United Kingdom coal market.
9. However, that share cannot really be considered as being on the whole available for competition among wholesalers. There are some very large consumers whose purchases account for the bulk of the solid fuel tonnage consumed in the United Kingdom and who, for good reasons, buy exclusively from British Coal direct. Such consumers are the two United Kingdom Generating Boards, the Central Electricity Generating Board and the South of Scotland Electricity Board, and steelworks in so far as they use coking coal in their own coke ovens or blast furnace coke produced by a British Coal subsidiary. Although few in number, the tonnage supplied to them accounts for about 91 million tonnes of British Coal's 1985/1986 sales. The reasons why they deal exclusively with the producer are partly technically, partly economically based. First, they require little local servicing. Moreover, they are able to switch easily from British Coal's products to either cheaper alternative sources of energy or cheaper coal offered by producers in third countries. The Generating Boards had to demonstrate this during the 1984/85 coal-industry dispute when their power stations, which are in fact interconnected, raised their fuel oil burn by 38,2 million tonnes of coal equivalent while reducing the coal burn by 39,5 million tonnes compared with the previous year. This technical flexibility combined with the low-priced alternative primary energies available to them such as fuel oil, nuclear power, liquid gases and imported coal puts these buyers in an extremely strong bargaining position. In order to get British Coal to align its prices for supplies to them as far as possible on the lower prices of alternative fuels, they prefer to agree contract terms directly with British Coal. This being so, it appears that the wholesale trade would not be able to secure a sufficient profit margin if it tried to interfere. Under these conditions, the vast bulk of the tonnages so supplied, i.e. that moved by rail or in the coastal sea trade to power stations and steelworks, is sold without any intervention of a distributor, whereas for relatively small tonnages transported by road and canal, the role of the trade is essentially to provide a haulage service, providing, and in some cases owning, the lorries and barges. Although in such cases it sometimes suits both British Coal and the consumer, for reasons of security, for the property to pass from British Coal to the haulier when it is loaded and then from the haulier to the consumer when it is unloaded, it is unrealistic to consider that the power station and steelworks market is one in which wholesalers can compete with British Coal. On the contrary, all solid fuel handled by British Coal on behalf of the Generating Boards and the steel industry must be regarded as a quantity not available for intermediate distributors, and consequently falls outside the scope of the further assessment of BFL's market share.
10. Consequently, as the power station and steel works markets absorb some 99,7 million tonnes, only about 21,7 million tonnes are in fact supplied under conditions under which wholesalers can compete for distribution. That quantity goes mainly to consumers in the general industry and domestic sectors. Also, 1,8 million tonnes of miners' coal have to be eliminated, the distribution of that coal being exclusively in the hands of British Coal and related companies.
11. So after completion, at the level of wholesalers servicing the United Kingdom market, the joint venture will have, due to the link with British Coal, a 52 % share as against 48 % for all other competitors. III
12. The merger agreement and related agreements, looked at from the point of view of British Coal's shareholding of 20 % in the joint venture, provide that British Coal will neither seek nor be able to impose on BFL any conditions concerning supplies which afford undue preference or advantage to British Coal products.
Furthermore, as regards the prices to be charged to BFL for British Coal products Decision No 30-53 (1), as last amended by Decision No 1834/81/ECSC (2), provides that a seller and the undertakings controlled by it are obliged to supply the same or similar products basically on the same terms to all customers who compete with each other. This principle fully applies to British Coal's sales both to BFL and to any other distributor.
13. There are several precedents where the Commission has adopted the view that, when assessing an enterprise's position in the market, account has to be taken not only of the products of that enterprise's own sector but also of the substitutes that can reasonably be chosen by its customers. Experience has indeed shown that, for general industry and household purposes, solid fuel, fuel oil, gas and electricity compete equally with each other. There is reason to conclude, therefore, that in spite of its market share of 52 % as against 41 % for the former BFC, BFL or its shareholders will not have the power to determine prices, to control or restrict distribution or to hinder effective competition in a substantial part of the market for those products.
14. This is because BFL will have to face fierce competition from generally low-priced alternative energies which has resulted in reduced solid fuel consumption on all markets. This development, which dates back to the middle and late 1950s has been further aggravated by the collapse in oil prices since the early months of last year. Solid-fuel distributors have therefore been constantly compelled to reduce costs and profit margins to the bare minimum in order to retain existing customers, so that the increased market share in no way enables BFL or its shareholders to determine prices.
15. Furthermore, after completion of the merger operation, BFL will not act under more favourable trading conditions in the market than its competitors. Although 52 % is a large market share, it should be noted that about 60 other distributors operate in the market, some of which hold shares in the range of 3 to 6 %. The change caused by the setting-up of the joint venture is not so great as to alter substantially the conditions of supply for consumers.
16. In addition, it must be borne in mind that the coal consumption of the United Kingdom general industry and domestic markets represents only a small part of the overall fuel consumption there: only about 15 % of all fuels consumed are still of solid-fuel origin, compared with 67 % in 1960. It follows that, taking account of all forms of energy for markets, the takeover of the Cawoods companies' market share by the former BFC in fact neither restricts users' freedom of choice of both supplies and suppliers nor hinders effective competition.
17. The fact that British Coal, in its capacity as producer, is involved in the joint venture makes it necessary to establish whether, through the new company, it will have the power to evade the rules of competition laid down in the Treaty, in particular by establishing an artificially privileged position involving a substantial advantage in access to markets.
18. Between 1948, the year in which the British coal industry was nationalized, and the time of United Kingdom accession to the Communities, other fuels had already heavily eroded solid fuels' position on the two markets which are in fact the main fields of the trade's activity. Coal consumption there fell by about 77 million tonnes, i.e. by 70 %. Since then, British Coal as the major supplier suffered a further 26 % drop in production and a reduction in manpower of more than 40 %. As a consequence of all this, the volume of business which could usefully be handled by the independent distributive trade shrank to relatively minor proportions, and to keep itself alive it had to diversify into other fields of business such as oil distribution and, more recently, builders' supplies, agricultural products and a wide range of other interests. It appears that, while British Coal's natural interest is to produce and sell as much coal and derived fuels as possible, for the independent distributive trade the marketing of solid fuels has to a large extent become a sideline. If, as a result, and eventually through increased involvement in the distributive trade, British Coal nevertheless tries to supply its products to the final consumer in a stable and regular way, there are no grounds for concluding that this is being done with a view to establish for itself an artificially privileged position involving a substantial advantage in access to markets. The planned transaction must rather be considered a legitimate way for British Coal to stabilize its eroded position on the energy market.
19. The Commission must ensure that the effects of the joint venture on competition remain limited to the extent outlined in the above assessment.
Given its position as the main producer of solid fuels in the United Kingdom, there is reason to believe that British Coal will use its holding in BFL to promote the sale of its own products. To avoid undue consequences for competition, therefore, the supplying of BFL by British Coal should be subject to certain conditions:
The parties and BFL should not be allowed to enter into any agreement with British Coal concerning supplies to BFL having the effect of placing fuels supplied by other producers in the Community at a competitive disadvantage. The scope for any contractual obligation on BFL for purchasing from British Coal should therefore be defined in terms of quantity. For agreements lasting in excess of one year a maximum of 65 % of BFL's requirements seems appropriate. Nor should BFL be allowed to be supplied by British Coal on preferential terms compared with those applied by British Coal to the joint venture's competitors, nor to be given preferential treatment for products in scarce supply. In order to take account of the foregoing considerations, appropriate conditions must be attached to any authorization.
20. Subject to the conditions set out in point 19, the planned joint venture therefore satisfies the conditions for authorization under Article 66 (2) of the ECSC Treaty and can be authorized,
HAS ADOPTED THIS DECISION:
Article 1
The Joint venture British Fuels Limited, London, between Redland plc, AAH Holdings plc and British Coal Corporation is hereby authorized.
Article 2
The authorization referred to in Article 1 shall be subject to the following conditions:
1. The parties to the joint venture and BFL shall not enter into any agreement in excess of one year concerning the supplying of BFL with solid fuels produced by British Coal or any of its subsidiaries covering more than 65 % of BFL's reasonable requirements within any such contract period.
2. British Coal and its subsidiaries shall not grant preferential terms for supplies to BFL. The provisions implementing Article 60 of the ECSC Treaty apply irrespective of British Coal's shareholding in BFL or the size thereof. British Coal and its subsidiaries shall not be allowed to operate any price discount scheme tending to place BFL's competitors at an undue disadvantage, or to give preferential treatment to BFL for products in scarce supply.
3. BFL shall, not later than 15 February each year, inform the Commission of the following:
(a) the aggregate quantity of solid fuels purchased during the preceding calendar year;
(b) the quantities purchased during the preceding calendar year from British Coal and its subsidiaries, broken into products and qualities and showing prices charged by these suppliers.
Article 3
This Decision is addressed to Redland plc, Reigate (Surrey), AAH Holdings plc Lincoln, and British Coal Corporation, London.
Done at Brussels, 9 July 1987.
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POLITICAL AND SECURITY COMMITTEE DECISION EUPOL COPPS/2/2006
of 21 November 2006
concerning the appointment of the Head of Mission/Police Commissioner of the European Union Police Mission for the Palestinian Territories (EUPOL COPPS)
(2006/853/CFSP)
THE POLITICAL AND SECURITY COMMITTEE,
Having regard to the Treaty on European Union and in particular the third paragraph of Article 25 thereof,
Having regard to Council Joint Action 2005/797/CFSP of 14 November 2005 on the European Union Police Mission for the Palestinian Territories (1), and in particular Article 11(2) thereof,
Whereas:
(1)
Article 11(2) of Joint Action 2005/797/CFSP provides that the Council authorises the Political and Security Committee to take the relevant decisions in accordance with Article 25 of the Treaty, including the decision to appoint, upon a proposal by the Secretary-General/High Representative, a Head of Mission/Police Commissioner.
(2)
The Secretary-General/High Representative has proposed the appointment of Mr Colin SMITH,
HAS DECIDED AS FOLLOWS:
Article 1
Mr Colin SMITH is hereby appointed Head of Mission/Police Commissioner of the European Union Police Mission for the Palestinian Territories (EUPOL COPPS), from 1 January 2007.
Article 2
This Decision shall take effect on the day of its adoption.
It shall apply until 31 December 2007.
Done at Brussels, 21 November 2006.
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COMMISSION REGULATION (EC) No 1481/2005
of 13 September 2005
amending Regulation (EC) No 2805/95 fixing the export refunds in the wine sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine (1), and in particular the second subparagraph of Articles 63(3) and 64(5) thereof,
Whereas:
(1)
Pursuant to Article 63(1) of Regulation (EC) No 1493/1999, to the extent necessary to enable the products listed in Article 1(2)(a) and (b) of that Regulation to be exported on the basis of the prices for those products on the world market and within the limits of the Agreements concluded in accordance with Article 300 of the Treaty, the difference between those prices and the prices in the Community may be covered by an export refund.
(2)
Under Article 64(3) of Regulation (EC) No 1493/1999, the amounts and destinations for refunds are to be fixed periodically taking account of the existing situation and likely trends with regard to the prices and availability of the products concerned on the Community market and the world market prices for those products.
(3)
Commission Regulation (EC) No 2805/95 (2) should therefore be amended accordingly.
(4)
The Management Committee for Wine has not delivered an opinion within the time-limit set by its Chairman,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EC) No 2805/95 is replaced by the text in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 14 September 2005.
It shall apply from 16 September 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 September 2005.
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Commission Regulation (EC) No 150/2002
of 25 January 2002
fixing the maximum purchase price for beef under the 18th partial invitation to tender pursuant to Regulation (EC) No 690/2001
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),
Having regard to Commission Regulation (EC) No 690/2001 of 3 April 2001 on special market support measures in the beef sector(3), as last amended by Regulation (EC) No 2595/2001(4), and in particular Article 3(1) thereof,
Whereas:
(1) In application of Article 2(2) of Regulation (EC) No 690/2001, Commission Regulation (EC) No 713/2001 of 10 April 2001 on the purchase of beef under Regulation (EC) No 690/2001(5), as last amended by Regulation (EC) No 97/2002(6), establishes the list of Member States in which the tendering is open for the 18th partial invitation to tender on 21 January 2002.
(2) In accordance with Article 3(1) of Regulation (EC) No 690/2001, where appropriate, a maximum purchase price for the reference class is to be fixed in the light of the tenders received, taking into account the provisions of Article 3(2) of that Regulation.
(3) Because of the need to support the market for beef in a reasonable way, a maximum purchase price should be fixed in the Member States concerned at an appropriate level. In the light of the different level of market prices in those Member States, different maximum purchase prices should be fixed.
(4) Due to the urgency of the support measures, this Regulation should enter into force immediately.
(5) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
Under the 18th partial invitation to tender on 21 January 2002 opened under Regulation (EC) No 690/2001 the following maximum purchase prices shall be fixed:
- Germany: EUR 157,00/100 kg,
- Ireland: EUR 187,03/100 kg,
- Spain: EUR 152,50/100 kg,
- France: EUR 211,00/100 kg,
- Belgium: EUR 163,40/100 kg,
- Portugal: EUR 143,00/100 kg,
- Austria: EUR 161,00/100 kg.
Article 2
This Regulation shall enter into force on 26 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 January 2002.
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Commission Regulation (EC) No 1366/2001
of 5 July 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 6 July 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 July 2001.
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COMMISSION REGULATION (EEC) No 1950/89 of 30 June 1989 fixing the reference prices for hybrid maize and hybrid sorghum for sowing for the 1989/90 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Regulation (EEC) No 2358/71 of the Council of 26 October 1971 on the common organization of the market in seeds (1), as last amended by Regulation (EEC) No 1239/89 (2), and in particular Article 6 (5) thereof,
Whereas Article 6 (1) of Regulation (EEC) No 2358/71 provides that a reference price for each type of hybrid maize and hybrid sorghum for sowing is to be fixed annually; whereas those reference prices must be fixed on the basis of the free-at-frontier prices recorded during the last three marketing years except for abnormally low prices; whereas, pursuant to Article 2 of Regulation (EEC) No 1578/72 of the Council of 20 July 1972 laying down general rules for fixing reference prices and for determining free-at-frontier offer prices for hybrid maize and hybrid sorghum for sowing (3), as last amended by Regulation (EEC) No 1984/86 (4), only prices for imports from third countries which are representative in terms of quantity and quality of the product should be taken into consideration;
Whereas imports of the types of hybrid maize for sowing falling within CN code 1005 10 19 may not be considered as representative on account of the very small quantity involved; whereas no reference prices may therefore be fixed for those types of maize;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Seeds,
HAS ADOPTED THIS REGULATION:
Article 1
For the 1989/90 marketing year, the reference prices for hybrid maize and hybrid sorghum for sowing falling within CN codes 1005 10 11, 1005 10 13, 1005 10 15 and 1007 00 10 shall be as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 June 1989.
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COMMISSION REGULATION (EEC) No 2098/92 of 24 July 1992 amending Regulation (EEC) No 1616/92 laying down detailed rules applicable to the free supply of food products to the population of Albania as provided for in Council Regulation (EEC) No 1567/92
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1567/92 of 15 June 1992 on a second emergency measure for the free supply of food products to the population of Albania (1),
Having regard to Council Regulation (EEC) No 2727/75 of 29 October 1975 on the common organization of the market in cereals (2), as last amended by Regulation (EEC) No 1738/92 (3), and in particular Article 7 thereof,
Having regard to Council Regulation (EEC) No 1418/76 of 21 June 1976 on the common organization of the market in rice (4), as last amended by Regulation (EEC) No 674/92 (5), and in particular Article 5 thereof,
Having regard to Council Regulation (EEC) No 1676/85 of 11 June 1985 on the value of the unit of account and the conversion rate to be applied for the purpose of the common agricultural policy (6), as last amended by Regulation (EEC) No 2205/90 (7), and in particular Article 2 (4) thereof,
Whereas Commission Regulation (EEC) No 1616/92 (8) provides for an emergency measure for the supply of food products to Albania;
Whereas examination has shown there to be an imprecision in the text of that Regulation at Article 8 (2);
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
Article 8 (2) of Regulation (EEC) No 1616/92 is replaced by the following:
'2. In the case of invitations to tender as provided for in Article 2 (3) of this Regulation, the successful tenderer must lodge a supply security before the goods are shipped. The amount of the security shall be equal to the intervention buying-in price of all of the basic product that was granted in exchange, adjusted in accordance with monthly increases applicable in the month of submission of tenders, that price being increased by 10 %.'
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, 24 July 1992.
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COMMISSION REGULATION (EC) No 20/2006
of 6 January 2006
amending the import duties in the cereals sector applicable from 7 January 2006
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1),
Having regard to Commission Regulation (EC) No 1249/96 of 28 June 1996 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards import duties in the cereals sector (2), and in particular Article 2(1) thereof,
Whereas:
(1)
The import duties in the cereals sector are fixed by Commission Regulation (EC) No 2159/2005 (3).
(2)
Article 2(1) of Regulation (EC) No 1249/96 provides that if during the period of application, the average import duty calculated differs by EUR 5 per tonne from the duty fixed, a corresponding adjustment is to be made. Such a difference has arisen. It is therefore necessary to adjust the import duties fixed in Regulation (EC) No 2159/2005,
HAS ADOPTED THIS REGULATION:
Article 1
Annexes I and II to Regulation (EC) No 2159/2005 are hereby replaced by Annexes I and II to this Regulation.
Article 2
This Regulation shall enter into force on 7 January 2006.
It shall apply from 7 January 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 6 January 2006.
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Commission Decision
of 13 December 2001
on the recognition of the "Hellenic Register of Shipping" in accordance with Article 4(3) of Council Directive 94/57/EC
(notified under document number C(2001) 4218)
(Only the Greek text is authentic)
(Text with EEA relevance)
(2001/890/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administration(1), as last amended by Commission Directive 97/58/EC(2), and in particular Article 4(3) thereof,
Having regard to the letters dated 3 and 30 August 2001 from the Greek Ministry of Mercantile Marine, requesting the recognition of the "Hellenic Register of Shipping" (hereafter "HRS") as per Article 4(3) (limited recognition),
Whereas:
(1) The three year limited recognition under Article 4(3) of Directive 94/57/EC is a recognition granted to organisations (classification societies) which fulfil all criteria other than those set out under paragraphs 2 and 3 of the section "General" of the Annex, but which is limited in time and scope in order for the organisations concerned to further gain experience.
(2) With a view to recognition, the Commission's assessment of HRS was carried out between 4 and 6 September 2001 at the head office in Piraeus, on the basis of the evidence submitted by the Greek administration and HRS. The Commission assessment also took into consideration findings of other recent visits to HRS offices, namely between 26 and 30 March 2001 in Piraeus and on 2 April 2001 at the regional office in Nicosia, Cyprus. On the basis of all the evidence gathered it was verified that HRS meets all the criteria of the Directive other than those set out under paragraphs 2 and 3 of the section "General" of the Annex.
(3) The measures provided for in this Decision are in accordance with the opinion of the Committee set up under Article 7 of Directive 94/57/EC,
HAS ADOPTED THIS DECISION:
Article 1
The "Hellenic Register of Shipping" is recognised pursuant to Article 4(3) of Directive 94/57/EC for a period of three years as from the date of adoption of this Decision.
Article 2
The effects of this recognition are limited to Greece.
Article 3
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 13 December 2001.
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*****
COUNCIL REGULATION (EEC) No 762/85
of 12 March 1985
amending Regulation (EEC) No 1760/78 on a common measure to improve public amenities in certain rural areas
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,
Having regard to the opinion of the European Parliament (1),
Whereas pursuant to Regulation (EEC) No 1760/78 (2), as amended by Regulation (EEC) No 2003/83 (3), Italy and France have implemented programmes to improve public amenities in certain rural areas;
Whereas the infrastructural shortcomings which still exist with respect to the rural road network and to the provision of electricity and drinking water to isolated holdings and farming villages are seriously detrimental to agricultural development in those regions;
Whereas, therefore, there is an acute need to provide extra funding for the common measure in order to ensure the continuity of agricultural development in the areas concerned;
Whereas, given that there are no other measures which could ensure continuity upon expiry of the common measure, it is necessary to extend the duration of the measure until the end of 1985;
Whereas, owing to the shortage of available appropriations, it is necessary, as an exceptional measure, to allow applications for aid to be carried forward for the second time in 1985,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 1760/78 is hereby amended as follows:
1. Article 11 (1) and (3) are replaced by the following:
'1. The period of validity of the common measure shall run until 31 December 1985.'
'3. The estimated cost to the Fund of the common measure shall be 170 million ECU for the period specified in paragraph 1.'
2. The following sentence shall be added to the second paragraph of Article 15:
'Nevertheless, in 1985, an application for aid may be carried forward for the second time.'
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, 12 March 1985.
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COMMISSION REGULATION (EC) No 462/2008
of 28 May 2008
amending the representative prices and additional duties for the import of certain products in the sugar sector fixed by Regulation (EC) No 1109/2007 for the 2007/08 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (1),
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 of the Article 36,
Whereas:
(1)
The representative prices and additional duties applicable to imports of white sugar, raw sugar and certain syrups for the 2007/08 marketing year are fixed by Commission Regulation (EC) No 1109/2007 (3). These prices and duties have been last amended by Commission Regulation (EC) No 445/2008 (4).
(2)
The data currently available to the Commission indicate that the said amounts should be changed 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 on imports of the products referred to in Article 36 of Regulation (EC) No 951/2006, as fixed by Regulation (EC) No 1109/2007 for the 2007/08 marketing year are hereby amended as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 29 May 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 1542/2001
of 27 July 2001
fixing the refunds applicable to cereal and rice sector products supplied as Community and national food aid
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 Commission Regulation (EC) No 1666/2000 [2], and in particular the third subparagraph of Article 13(2) 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 13(3) thereof,
Whereas:
(1) Article 2 of Council Regulation (EEC) No 2681/74 of 21 October 1974 on Community financing of expenditure incurred in respect of the supply of agricultural products as food aid [5] lays down that the portion of the expenditure corresponding to the export refunds on the products in question fixed under Community rules is to be charged to the European Agricultural Guidance and Guarantee Fund, Guarantee Section.
(2) In order to make it easier to draw up and manage the budget for Community food aid actions and to enable the Member States to know the extent of Community participation in the financing of national food aid actions, the level of the refunds granted for these actions should be determined.
(3) The general and implementing rules provided for in Article 13 of Regulation (EEC) No 1766/92 and in Article 13 of Regulation (EC) No 3072/95 on export refunds are applicable mutatis mutandis to the abovementioned operations.
(4) The specific criteria to be used for calculating the export refund on rice are set out in Article 13 of Regulation (EC) No 3072/95.
(5) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
For Community and national food aid operations under international agreements or other supplementary programmes, and other Community free supply measures, the refunds applicable to cereals and rice sector products shall be as set out in the Annex.
Article 2
This Regulation shall enter into force on 1 August 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 July 2001.
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Commission Decision
of 30 April 2003
on the State aid implemented by Germany for Heckert Werkzeugmaschinen GmbH
(notified under document number C(2003) 1326)
(Only the German text is authentic)
(Text with EEA relevance)
(2003/591/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 28 December 1999, Germany notified the Commission of aid to Heckert Werkzeugmaschinen GmbH. The aid case was registered under number NN 7/2000. By letters dated 21 January 2000, 26 January 2001 and 1 August 2001, the Commission asked for further information. Germany replied by letters dated 24 February 2000, 29 May 2001 and 6 September 2001.
(2) By letter dated 28 December 2001, the Commission informed Germany that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the aid and invited interested parties to submit their comments(2). The case was then registered as C 93/2001. Comments from Germany were received on 28 January and 1 March 2002.
II. DESCRIPTION
1. Beneficiary
(3) The case concerns rescue and restructuring aid to Heckert Werkzeugmaschinen GmbH. The company produces machine tools and is specialised in the production of milling machines. It is situated in Chemnitz in the Land of Saxony, an assisted area under Article 87(3)(a) of the EC Treaty. HWG is the successor of the former State-owned "Kombinat Fritz Heckert".
(a) Privatisation
(4) In 1991 the "Kombinat Fritz Heckert" was taken over by the German Treuhandanstalt ("THA") and was renamed Heckert-Chemnitzer Werkzeugmaschinen GmbH ("H-CW").
(5) After an open and unconditional tender, the essential parts of the machine tool production were sold on 24 September 1993 under the name of Heckert Chemnitzer Werkzeugmaschinen GmbH ("HCW") to Traub AG, Reichenbach. The purchase price was DEM 7 million (EUR 3,57 million). At that time HCW employed 420 people.
(6) In the context of the privatisation, the company received aid totalling some EUR 81,6 million under approved aid schemes. These measures included residual securities for liquidity guarantees and credit line liabilities amounting to DEM 11 million (EUR 5,6 million) originally granted by the Bundesanstalt für vereinigungsbedingte Sonderaufgaben ("BvS") before the privatisation. These guarantees were taken over, up to a liability of 80 %, by the Land of Saxony ("Land") and the Federal Government(3).
(7) In 1995 Traub AG began to encounter financial difficulties. Due to the bad results incurred by Traub AG, the banks froze the whole group's credit lines. By the end of 1996, the subsequent lack of liquidity forced both Traub AG and HCW into bankruptcy. At the time of its bankruptcy HCW employed 640 people.
(b) Continuation of activity during receivership
(8) The bankruptcy receiver decided to continue the activity of HCW in order to prepare it for subsequent sale. On 24 January 1997, he established Heckert Werkzeugmaschinen GmbH ("HWG") as a hive-off of HCW. This was done in order to be able to act on the market with a company that was not in receivership. HWG's purpose was to acquire and process new orders whereas HCW, which was in receivership, continued to produce the goods that were to be sold via HWG.
(9) On 29 November 1996, the Deutsche Bank granted a credit totalling DEM 16 million (EUR 8.16 million) to the company in receivership. Later, on 13 June 1997, the credit was increased by DEM 12 million (EUR 6,12 million) in order to secure the processing of one of the main orders. The credit was granted at an interest rate of 7,5 % p.a. and was to be reimbursed on 15 February 1998. The credit was publicly guaranteed up to 80 % by the Federal Government and the Land. The provision for the guarantee amounted to 0,5 % and the guarantee expired the same day that the loan was to be reimbursed.
(10) On 7 August 1997, the company also received a loan of DEM 9,5 million (EUR 4,9 million) from BvS at an interest rate of 6 %.
(11) Both measures were granted to cover the operating costs during the receivership.
(c) Sale of the company to a new investor
(12) On 16 June 1998, the receiver sold HWG as well as the necessary production assets of HCW to the Swiss machine-tool producer Starrag AG ("Starrag"). The purchase price for HWG was DEM 50000 (EUR 25510). The price paid for the assets was DEM 47,4 million (EUR 24,2 million).
(13) In the context of the sale to Starrag, BvS waived the reimbursement of the abovementioned loan of DEM 9,5 million (EUR 4,9 million). However, Germany informed the Commission on 10 May 2001 that the receiver had fully reimbursed the loan including interest.
(14) On 19 September 1998, the Deutsche Bank granted a loan of DEM 10 million (EUR 5,1 million) to HWG that was publicly refinanced by the Kreditanstalt für Wiederaufbau ("KfW") under an aid scheme approved by the Commission(4). The loan was granted for a period of 10 years at an interest rate of 3,75 % and is to be reimbursed in 16 instalments starting at the end of February 2001.
(15) Lastly, HWG also received investment grants of DEM 13,28 million (EUR 6,78 million) as well as an investment premium of DEM 499800 (EUR 255000) under aid schemes approved by the Commission(5).
2. Decision to initiate proceedings under Article 88(2) of the EC Treaty
(16) In the decision to initiate the formal investigation procedure, the aid was assessed according to the guidelines on State aid for rescuing and restructuring firms in difficulty(6) ("the guidelines"). Since the aid was granted before the entry into force of the new guidelines in 1999(7). it was assessed under the old 1994 guidelines.
(17) When it initiated the Article 88(2) procedure, the Commission expressed the following doubts:
(a) whether the guarantees of DEM 11 million (EUR 5,6 million) for liquidity credits and credit line liabilities granted in the context of the privatisation complied with the conditions of the scheme referred to. In particular it was doubtful whether the guarantees could be granted jointly by the Federal Government and the Land and whether the measures consisted of partial and temporary guarantees as required by the scheme;
(b) whether the public 80 % guarantee granted in connection with the increase of the Deutsche Bank loan of DEM 16 million (EUR 8,16 million) to DEM 28 million (EUR 14,3 million) and deemed to be rescue aid in the initiation of proceedings complied with the criteria set out in the guidelines;
(c) whether the KfW refinancing of the Deutsche Bank loan of DEM 10 million (EUR 5,1 million), in particular its interest rate of 3,75 % and its repayment schedule of initially two and a half repayment-free years, was in line with the abovementioned scheme;
(d) whether the BvS loan of DEM 9,5 million (EUR 4,9 million), which in the initiation of proceedings was deemed to be rescue aid, could be considered to be part of a one-off rescue operation and whether it complied with the time limits for repayment provided for in the guidelines.
(18) As regards Germany's claim that the measures were compatible as restructuring aid, the Commission expressed doubts whether the beneficiary was eligible for restructuring aid under the terms of the guidelines.
III. COMMENTS FROM GERMANY
(19) During the formal investigation procedure Germany supplied the following additional or revised information:
1. Guarantees granted in the context of the privatisation
(20) Germany informed the Commission that the guarantees on the loans of DEM 11 million (EUR 5,6 million) made available in the context of the privatisation were granted on 21 February 1995 as 65 %, and not 80 %, deficiency guarantees and were limited in time to 31 December 2002. As of 31 December 1999 the guarantees gradually decreased by 25 % each year.
(21) The repartition of the guarantee liability between the Federal Government and the Land of 60:40 was stated to be an internal measure which had no influence on the scheme's total aid ceiling, of which the Commission had been informed by letter dated 26 June 1995.
2. The 80 % guarantee during the receivership
(22) With respect to this measure, Germany pointed out that it had been granted under the same aid scheme as the previous measures(8) and therefore should not be assessed as an ad hoc rescue aid.
3. The KfW refinanced Deutsche Bank loan during the receivership
(23) Concerning the refinancing of the Deutsche Bank loan by KfW, Germany informed the Commission that, although the loan had to be repaid up to 100 % of its nominal sum, only 96 % of it was effectively paid out to the beneficiary. Therefore the loan was granted with an actual interest rate of 4,58 %.
(24) Germany also emphasised that the loan was refinanced under the East German component of the scheme(9), which until the end of 1998 provided for an interest rate reduced by 0,25 % in comparison to the West German component. The deviation of the rates used by KfW from the Commission's reference rate was, according to Germany, due to the fact that the market rates at that point were in decline and the reference rate is only adjusted at long-term intervals.
(25) Germany also pointed out that the East German component of the scheme provided for a repayment schedule commencing after two-and-a-half years.
4. BvS loan during the receivership
(26) Concerning the compatibility of the BvS loan of DEM 9,5 million (EUR 4,9 million) granted during the receivership, Germany argued that it could be considered compatible with the conditions of the guidelines for rescue aid. Germany was of the opinion that in cases where the recipient of the aid was in receivership, it was inappropriate to focus on the time of the reimbursement since in such cases the repayment was made from the proceeds of the bankruptcy proceedings. This regularly resulted in delays. Furthermore, Germany underlined that the grant was used solely to continue the operative business of HCW during the receivership.
IV. ASSESSMENT
1. Guarantees granted in the context of the privatisation
(27) Concerning the liquidity guarantee of DEM 5,5 million and the credit line guarantee of DEM 5,5 million that were provided by the Federal Government and the Land of Saxony in the context of the privatisation, it is noted that the scheme referred to allows for guarantees of up to 80 % for investment credits and temporary working capital loans.
(28) The Commission takes account of Germany's comments according to which the guarantees covered only 65 % of the credits and were limited in time to 31 December 2002. It is also noted that the internal appointment between the Federal Government and the Land, of which the Commission was informed by letter of 26 June 1995, did not increase the overall aid ceiling or any other condition of the scheme. These measures therefore appear to comply with the conditions of the scheme referred to and do not need to be assessed in this decision.
2. The 80 % guarantee during the receivership
(29) In the initiation of proceedings, the public 80 % guarantee granted in connection with the increase of the Deutsche Bank loan of DEM 16 million (EUR 8,16 million) to DEM 28 million (EUR 14,3 million) was deemed to be rescue aid and the Commission had doubts whether the conditions for rescue aid were met.
(30) After the initiation of proceedings, Germany pointed out that this measure had been granted under the same guarantee scheme as the measures above. The Commission notes that as the measure is a temporary 80 % guarantee on a temporary working capital loan, it appears to be covered by the scheme and does not need to be further assessed in this decision.
3. KfW-refinanced Deutsche Bank loan during the receivership
(31) Concerning the KfW refinanced Deutsche Bank loan, the Commission takes account of Germany's comments submitted after the initiation of proceedings. According to these, the loan was granted at an effective rate of 4,58 %. Furthermore, the measure was in fact granted under the East German component of the scheme which allowed for a repayment schedule of two-and-a-half repayment-free years and an interest rate reduced by 0,25 % in comparison to the West German component of the scheme. In this context it is also noted that the loan was granted in a period where the market rates were in decline and that the Commission's reference rate, which in September 1998 still amounted to 5,94 %, was readjusted in November 1998 to 4,87 %.
(32) In the light of this information, the measure appears to comply with the conditions of the East German component of the scheme and does not need to be further assessed in this decision.
(33) In view of the above, all the measures granted in accordance with approved schemes do not need to be further assessed in this decision.
(34) Consequently, only the BvS loan of DEM 9,5 million (EUR 4,9 million) that was granted in 1997 is to be regarded as ad hoc aid.
4. BvS loan granted during the receivership
(35) The Commission notes that the remaining ad hoc aid, i.e. the BvS loan of DEM 9,5 million (EUR 4,9 million), has in the meantime been paid back with an interest rate of 6 %. It is also noted that, at the time when this loan was granted, the Commission's reference rate, which is used to establish the interest to be paid in cases of recovery of incompatible aid, amounted to 5,54 %.
(36) In view of the above, the Commission concludes that the potentially incompatible State aid, i.e. the BvS loan of DEM 9,5 million (EUR 4,9 million), has been repaid and all potential distortions of competition deriving from the aid have therefore been removed.
V. CONCLUSION
(37) Consequently, the formal investigation procedure under Article 88(2) of the EC Treaty in respect of the relevant measure no longer needs to be pursued,
HAS ADOPTED THIS DECISION:
Article 1
The formal investigation procedure under Article 88(2) of the EC Treaty initiated on 20 December 2001 in respect of aid implemented by Germany for Heckert Werkzeugmaschinen GmbH, Chemnitz, is hereby terminated.
Article 2
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 30 April 2003.
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COMMISSION DECISION of 14 September 1994 on aid in respect of exports of mushrooms, granted in connection with the Market Development Fund in Ireland (Only the English text is authentic) (94/814/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 1035/72 of 18 May 1972 on the common organization of the market in fruit and vegetables (1), as last amended by Regulation (EC) No 3669/93 (2), and in particular Article 31 thereof,
Having given formal notice, in accordance with Article 93 (2) of the Treaty, to the parties concerned to submit their comments (3) and having taken due account of the same,
Whereas:
I (1) The Commission was informed that State aid was being granted to producers of mushrooms in the form of aid related to the quantitiy of mushrooms exported; this aid, according to the same information, was being granted from the Market Development Fund. By letter dated 17 December 1992, the Commission asked the Permanent Representative of Ireland whether such an aid existed and if so to inform it how this measure could be reconciled with the Market Development Fund, a scheme to which the Commission did not formulate objections in November 1992 (Aid No 644/92). Under the Market Development Fund, assistance to business producing agricultural products covered by common organizations of the market was confined to aid for training, market development or advertising and aid to certain investments and/or short-term operating loans. By letter dated 1 April 1993, the Irish authorities sent the Commission an answer that was not very detailed; on 7 April 1993, therefore, the Commission asked for additional clarifications in order to avoid any misunderstandings concerning the application of the Market Development Fund to mushroom producers.
By telex message of 14 April 1993, the Commission asked for a reply to its telex message sent on 23 February 1993, to which no reply had been received, asking for precise details on one of the conditions for granting the aid in question.
The Irish authorities replied to the request from the Commission of 7 April 1993 by telex message of 7 May 1993. In addition, by telex message of 12 May 1993, the Irish authorities answered the telex message of 23 February 1993. The telex message of 12 May 1993 led the Commission to require more detailed clarifications by telex message of 17 May 1993.
The Irish authorities answered the Commission's telex message of 17 May 1993 by telex message of 23 June 1993. However, despite this telex message, justified doubts continued to exist and a meeting between the Irish authorities and Commission staff took place on 29 June 1993. At the end of this meeting, the doubts concerning the application of the Market Development Fund to the mushroom sector persisted.
(2) According to information reaching the Commission, based especially on a document appearing to be a circular of the Irish Trade Board, of which the Commission has a copy, the recipients of the aid are individual mushroom producers who buy their compost from one or more of the five Irish compost-selling undertakings and who export fresh mushrooms; the amount of aid is based on the quantity of mushrooms exported. In fact, according to a complainant submitted to the Commission, the aid is between 3,5p and 6,5p per pound and totals £ Irl 1,2 million.
The various answers and clarifications provided by the Irish authorities, including the statements that the quantity of mushrooms exported is only a condition of eligibility for aid, that the amount of aid granted is not linked to the quantity of mushrooms exported and that the only aid granted to the mushroom producers under the Market Development Fund is exclusively a function of the producers' eligible expenditure on training, market development and promotion, are not consistent with the information contained in the document referred to above which appears to be a circular of the Irish Trade Board.
By letter dated 23 June 1993, the Irish authorities confirmed the existence of the said circular but stated that it had been sent to some of the compost firms before any aids was paid and that the situation was rectified subsequently. However, the Irish authorities did not provide precise evidence in support of this statement concerning retification. In addition, at the meeting on 29 June 1993, no new evidence was produced of a nature to eliminate the doubts as to whether the aid was compatible with the Market Development Fund.
II (1) By letter dated 29 July 1993 to the Irish Government, the Commission stated that it had decided to initiate the procedure provided for in Article 93 (2) of the Treaty with regard to this aid.
In that letter, the Commission informed the Irish authorities that it considered, on the basis of the information contained in the document referred to above which appeared to be a circular of the Irish Trade Board, that the aid in question could not on principle be regarded as a proper application of the Market Development Fund to mushroom producers. In fact the aid in question, which according to the circular was calculated according to the quantities exported, amounted to an operating aid with the direct effect of artificially lowering the cost of the products of the benefiting producers. It was consequently likely to distort competition and to affect trade between Member States and met the criteria of Article 92 (1) of the Treaty without qualifying for any of the exemptions provided for in Article 92 (2) and (3).
Furthermore, the measure infringed Regulation (EEC) No 1035/72. The provisions of that Regulation are to be regarded as a complete and exhaustive system, excluding any possibility for Member States to take complementary market measures.
In addition, a condition set for the granting of aid, in this case the obligation to buy compost from one or more of five Irish compost-selling undertakings, constitutes a measure of equivalent effect to a quantitative restriction on trade and thus infringes Articles 30 et seq. of the Treaty. The Commission considers on principle any aid to be incompatible within the meaning of Article 92 if the conditions for granting the aid conflict within the meaning of Article 92 if the conditions for granting the aid conflict with another provision of Community law, since any such aid must be considered contrary to the common interest.
(2) Under the abovementioned procedure, the Commission gave notice to the Irish Government to make known its comments.
The Commission also gave notice to the other Member States, as well as interested parties other than the Member States, to make their comments (see footnote 3).
III Two Member States and various interested parties communicated their comments to the Commission. The correspondence containing these comments was passed on to the Irish authorities in a letter dated 10 February 1994.
By letter dated 11 October 1993, the Irish authorities announced that they would reply to the letter of 29 July 1993 as soon as possible and, in letter dated 24 March 1994, undertook to give an answer within two weeks. In addition, in the latter letter, it was stated that the Irish authorities were reviewing the application of the Market Development Fund and that they needed slightly more time to finalize this review as regards small businesses.
By letter dated 6 April 1994, the Irish authorities provided replies to the Commission cencerning some fundamental aspects of the scheme. In connedtion with the problem of the infringement of Article 30 of the Treaty, they stressed that initially the staff responsible for paying aid under the Market Development Fund considered that aid should not be granted to firms importing their compost because they had profited from the devaluation of the pound sterling. However, following representations from some firms and in the light of experience in applying the Fund, it was decided to allow aid to be paid to applicant businesses which had imported their compost. In support of this argument the Irish authorities provided a letter from the Irish Mushroom Growers' Association dated 4 April 1994 confirming that it was satisfied that all the potential applicants for aid had been informed of the existence of the scheme and that firms using imported compost were eligible for and had received aid.
Regarding the problem of the operative event for payment of the aid, the Irish authorities stated that they had made inquiries into the activities of the main firms assisted by the Market Development Fund and that the expenditure had indeed been on activities covered by the scheme approved by the Commission.
They added that the expenditure by the four largest beneficiary undertakings (accounting for almost 85 % of aid to the mushroom sector under the Market Development Fund) in the period from October 1992 to the end of 1993 in respect of the following activities, viz: market research, sales personnel and recruitment, establishment of overseas companies/offices, trade fairs, etc, travel to overseas markets, overseas customer visits, tendering costs, advertising and promotion, design and product development, and training had exceeded the aid received from the Market Development Fund. As for the smaller businesses, accounting for the remaining 15 % of the Market Development Fund, the Irish authorities affirmed that they were confident that expenditure had been incurred at least equal to the amount of aid received.
It is clear that the evidence provided involves only an ex-post comparison of aid granted and that the expenditure recorded in the major undertakings over a period was also determined ex-post. The Commission felt therefore that it was necessary to seek additional clarifications and a meeting took place on 19 April 1994 between the Irish authorities and Commission staff. As a result of this meeting the Irish authorities undertook to provide the Commission with official documents within a very short time, provided that such documents existed, showing that steps had been taken in good time, and at the latest before the first payment of aid, to link the granting of aid to recipients' eligible expenditure in accordance with the rules of the Market Development Fund.
Although the Irish authorities provided certain additional information about the grant of the aid, no document or other precise evidence in that regard was supplied by the Irish authorities. The information they provided is as follows:
(a) a letter dated 27 April 1994, the contents of which were similar to that of 6 April 1994 but containing copies of the guidelines for the application of the Market Development Fund, as well as for completing the aid application form (which the Commission already had in its possession), these being documents which were sent to all firms requesting aid; this letter also contained copies of certificates issued by the accountants of the five undertakings certifying that in the period from September 1992 to December 1993 these firms had incurred expenditure, depending on the firm, on market research, recruitment and training, sales personnel and recruitment, advertising and promotion, overseas customer visits, establishment of overseas companies, trade fairs, exhibitions, demonstrations, travel to overseas markets, tendering costs, design and product devlopment, product and pack house development.
To this letter dated 27 April 1994 was also attached a copy of a letter sent by the Irish authorities on 27 April 1994 to the chairman of the Irish Mushroom Growers' Association and referring to the condition contained in the circular of 20 November 1992 (see point II.1), according to which aid would be granted only to mushroom producers who buy all their compost in Ireland. The contents of this latter letter are as follows:
'I refer to the assistance provided by the Market Development Fund during the currency crisis of 1992/93.
At the commencement of the Fund's operations, a circular issued from the Fund on 20 November 1992 stating that assistance will be provided to mushroom growers who buy all their compost in Ireland.
As you know, this condition was not implemented, as it was not in accordance with the terms of the approval of the EU Commission for the operation of the Fund. (I note in this regard the terms of your letter of 5 April 1994). Moreover, purchase of Irish compost would not be a condition of eligibility for any existing or future scheme of State assistance.
To remove any doubt there may be that growers may have been persuaded by the Fund letter of 20 November 1994 that any State assistance in the future may be linked to, or conditional upon, the purchase of Irish compost by potential beneficiaries, I should be grateful if you would circulate a copy of this letter of your members and if you would confirm to me that you have done so.';
(b) a letter dated 29 April 1994, which repeated the arguments advanced in the previous letters from the Irish authorities but added the following new points:
(i) that the provisions contained in the circular of 20 November 1992 were drawn up before the Commission approved the Market Development Fund scheme and that they were communicated to the staff implementing the scheme; that payments from the Market Development Fund were not made until early December 1992; that, at that time, the arrangements referred to in the circular of 20 November 1992 had been superseded and were not applied; that aid was paid by the authorities to firms exporting mushrooms without any conditions which would require its distribution to the mushroom growers;
(ii) that the conditions on the use of aid were made clear to beneficiaries by:
- the guidelines for the application of the scheme and the aid application form (see point (a)),
- the formal letters of approval issued from the Irish Trade Board to all firms who received assistance from the fund; these letters made no reference to a condition that the monies received had to be passed on to mushroom producers and indeed no such condition was imposed,
- the formal document of transfer of funds and the formal document of acknowledgement that firms had to complete, which showed that:
(i) there was no obligation to pass on the monies to producers, and
(ii) the amount of aid was linked to the number of employees of the firm and was not calculated by reference to the quantity of mushrooms exported.
In support of these arguments, the Irish authorities provided a copy of the guidelines already mentioned, a copy of an aid approval letter from the Irish Trade Board, a copy of the administrative aid-payment document and a copy of the acknowledgment of receipt to be filled in by the undertaking.
Finally, in this same letter, the Irish authorities stated that all these points constituted sufficient evidence to satisfy the Commission that:
(i) Market Development Fund assistance was paid to firms exporting mushrooms;
(ii) the amount of the assistance was not calculated by reference to the quantity of mushrooms exported by these firms;
(iii) there were no conditions requiring these firms to pass on the monies received to producers;
(iv) the use of Irish compost as a condition of eligibility was discarded before any decision was taken on the question of any firm's eligibility;
(v) there is no possible beneficiary who was left unaided as a result of the initial adoption of that condition; and
(vi) any influence that the initial condition may have had on a firm's decision to source compost has been neutralized.
IV (1) In accordance with Article 31 of Regulation (EEC) No 1035/72, Articles 92, 93 and 94 of the Treaty are applicable to the product concerned.
The aid in question can on principle only be regarded as an application of the Market Development Fund if the beneficiaries received it on the terms laid down for the Fund. In fact, the Market Development Fund - to which the Commission did not formulate any objection on 12 November 1992 - was a temporary scheme which expired at the latest at the end of March 1993, designed to help small and medium-sized businesses to cope with their financial difficulties following the devaluation of the pound sterling. More particularly for firms whose production includes agricultural products covered by common organizations of the market (as is the case for mushrooms), and unlike the aid for firms whose production does not involve agricultural products, the aid was to be limited to eligible expenditure for activities such as training, market development and advertising, and certain investments and/or short-term operating loans.
One of the conditions of eligibility under this scheme was dependence on the UK market. However, in the case in question not only was the quantity of mushrooms exported a condition of eligibility as the Irish authorities state (see I.2), but it appears from the circular that the Commission has in its possession, and the existence of which has been confirmed by the Irish authorities, that the amount of aid granted to producers was calculated on the basis of the quantities of mushrooms exported and not on their eligible expenditure.
According to the Irish authorities this document was subsequently corrected before any payments of aid were carried out, but no document or other precise evidence of this correction, or of how it was done, has been supplied to the Commission, either at the bilateral meeting on 29 June 1993 or in the letters dated 11 October 1993, 24 March 1994, or 6 April 1994 following the opening of the procedure under Article 93 (2), or at the meeting on 19 April 1994, or in the letters dated 27 and 29 April 1994.
The replies of the Irish authorities of 24 March and 6 April 1994 provide no new details regarding the operative event for payment of the aid.
The ex-post check carried out by the Irish authorities showing that the aid was actually granted in accordance with the rules of the Market Development Fund, as referred to in the replies of 24 March, 6 April and 27 and 29 April 1994, does not allow the Commission to change its assessment of non-conformity of the aid. Thus, although the Irish authorities made an a posteriori examination of expenditure, this is not a demonstration that the aid was granted only for expenditure, this is not a demonstration that the aid was granted only for expenditure allowed under the Market Development Fund for operators producing or trading in products covered by Annex II to the Treaty. Such eligible expenditure should have been determined at the latest when the aid was initially granted.
In addition, the checks made by the Irish authorities, although supposed to be made on the recipients of aid, in fact involved only the undertakings which, according to the circular of 20 November 1992, were required to pass on the aid directly without deductions to the mushrooms growers.
As regards the administrative documents which the Irish authorities undertook at the meeting on 19 April 1994 to supply within a short time to the Commission - provided such documents existed - so that the Commission could satisfy itself that steps were taken in good times to link the granting of aid to the recipients' eligible expenditure in accordance with the rules of the Markets Development Fund, no document of this kind has been received from the Irish authorities. The letter referred to earlier that was sent on 27 April to the Irish Mushroom Growers' Association mentions only the use of compost by the mushroom producers.
As regards the letter dated 29 April 1994 and the attached documents, they provide no evidence that before the granting of aid at the end of 1992 any steps were taken to link the granting of aid to the types of expenditure referred to in the Commission's letter of 16 November 1992 (see point I.1). Moreover,
- although it is stated in that letter that the provisions of the circular of 20 November 1992 were replaced and were not applied, no document or precise evidence has been provided repealing and replacing that circular,
- the absence of any indication, in the copy of the administrative letter of the Irish Trade Board approving aid to firms (example letter dated 15 December 1992), of an obligation on firms to pass on the aid to the mushroom growers does not prove that this obligation was not actually applied, as required by the circular of 20 November 1992,
- the same conclusion applies to the administrative document transferring aid monies to the firms,
- the fact that point 3 of the Irish Trade Board letter quoted above recalls that the aid is granted only if compost is bought from an Irish undertaking ('domestic source') strengthens the idea that the circular of 20 November 1992, which already contained this condition, was in fact never replaced.
(2) It is also clear that, whether or not there was an obligation on the recipient firms to pay the aid to producers, the aid must still be regarded as operating aid incompatible with the common market, because it follows from the details of the case that the aid payment was not linked to the types of expenditure specified in the Commission's letter of 16 November 1992.
(3) The fact that, as alleged in the Irish authorities' letter of 29 April 1994, the aid granted was based on the number of employees of the recipient firm and not on the quantity of mushrooms exported does not change the character of the aid from being operating aid to mushroom-exporting undertakings.
Such aid has the effect of putting the recipients in a more favourable situation compared with operators in the same sector in the other Member States.
The result is, consequently, to distort competition between the Irish operators receiving the aid, producers and/or exporters, and corresponding operators in the other Member States.
In addition, since 1981 Ireland has increased its presence in the mushroom market and become the largest exporter of fresh mushrooms to the remainder of the Community, almost exclusively to the United Kingdom, in absolute terms (in 1980 Ireland produced 6 000 tonnes of mushrooms, compared with 37 000 tonnes in 1991; of these 37 000 tonnes, Ireland exported 24 193 tonnes to other Community countries, including 24 172 to the United Kingdom). In 1991, total intra-Community trade amounted to 70 448 tonnes.
The aid in question is therefore likely to affect trade between Member States, more especially as more than half of Irish production is exported to other Community countries.
The measure thus falls within the terms of Article 92 (1) of the Treaty.
(4) Article 92 (1) states that aid schemes fulfilling the terms it sets out are on principle incompatible with the common market.
The exemptions provided for in Article 92 (2) are clearly not applicable to the aid scheme concerned, nor have these exemptions been invoked by the Irish authorities.
The exceptions provided for in Article 92 (3) list objectives pursued in the interests of the Community and not solely in the interests of individual sectors of national economies. These exemptions are to be interpreted strictly during the examination of any programme of regional or sectoral aid or of any individual case of application of general aid schemes.
In particular, these exemptions can be granted only if the Commission can establish that the aid is necessary for carrying out one of the objectives pursued. To grant the benefit of one of these exemptions to aid schemes not involving any such counterpart would amount to allowing damage to trade between Member States and distortions of competition that cannot be justified in the Community interest and, at the same time, to permitting undue advantages to accrue to operators in certain Member States.
In the case at issue, the aid does not involve any such counterpart. The Irish Government has not provided, nor has the Commission discovered, any evidence that the aid in question meets the terms of one of the exemptions provided for in Article 92 (3).
The scheme is not intended to promote the carrying out of an important project of common European interest within the meaning of Article 92 (3) (b), since, given the effects that it can have on trade, the aid runs counter to the common interest. Nor is it a measure designed to remedy a serious disturbance of the economy of the Member State concerned within the meaning of that same provision.
With regard to the exemptions provided for in Article 92 (3) (a) and (c) for aid schemes intended to encourage or facilitate the economic development of the regions as well as of certain activities referred to in Article 92 (3) (c), it must be noted that the measure at issue, because it is an operating aid, is not of a nature to improve in a durable way the situation in which the recipient producers are placed since, once it ceased to be paid, they would again be in the same situation as existed before the State aid was provided.
(5) Furthermore, it must be remembered that the aid concerns a product covered by a common organization of the market and that there are limits to the powers of Member States to intervene autonomously in the operation of such a common organization comprising a common support system, which thereby falls within the exclusive competence of the Community.
The payment of the aid at issue in the mushrooms sector is counter to the principle that Member States no longer have the power to take unilateral decisions on farmers' incomes within the framework of a common organization of the market by granting aid of this type. Even if an exemption under Article 92 (3) were possible for producers of the agricultural product in question, the aid scheme infringes the common organization of the market and would thereby be excluded from such an exemption (see judgment of the Court of Justice of 26 June 1979 in Case 177/78, Pigs and Bacon Commission v. Mc Carren Company Ltd (4).
Accordingly, the aid must be regarded as aid not eligible for any of the exemptions provided for in Article 92 (3).
(6) In addition, since according to the circular of 20 November 1992 the aid was restricted to producers buying compost from one or more of the five undertakings selling Irish compost, it must be regarded as a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the Treaty. The scheme encouraged the mushroom producers to purchase their supplies of compost only from national producers and thus indeed constitutes a measure having an effect equivalent to a quantitative restriction which cannot be justified under Article 36 because it involves a purely economic measure; the Irish authorities, in particular in their replies of 23 June 1993 and 29 April 1994, stated that the circular referred to above had actually been sent to some of the firms concerned. According to the Irish authorities this happened before payments of aid were made and the situation was rectified subsequently.
The Commission considers an aid scheme on principle to be incompatible with the common market within the meaning of Article 92 of the Treaty if the conditions on granting the aid infringe another provision of Community law.
Although the Irish authorities declared in their letter dated 29 April 1994 that the circular of 20 November 1992 had been repealed and replaced before payments were made, the same letter contains a copy of a letter sent by the Irish Trade Board on 15 December 1992 to a recipient of the aid approving the grant of the aid but also recalling that it was granted on condition that compost was bought from an Irish company.
However, the information contained in the letter dated 27 April 1994 sent by the Irish authorities to the Mushroom Growers' Association with a request to circulate it to all members, reminded the Association that such a condition requiring the purchase of compost was not applied and recognized that this provision was contrary to Community law. Under these circumstances the Commission considers that, as from that date, the effects of this provision of the circular of 20 November 1992 were corrected.
(7) The aid in question must therefore be considered incompatible with the common market within the meaning of Article 92 of the Treaty.
(8) Since the aid was granted without being first notified as a draft measure to the Commission, it must be considered illegal under Article 93 (3) of the Treaty.
V In cases of incompatibility of an aid scheme with the common market, the Commission is entitled, in accordance with the case law of the Court of Justice and in particular the judgment delivered on 12 July 1973 in Case 70/72 (5), as confirmed by judgments of 24 February 1987 and of 20 September 1990 in Cases 310/85 (6) and C-5/89 (7) respectively, to require Member States to recover from the recipients any aid granted improperly.
In light of the above considerations, the aid paid out, the exact amount of which is not known to the Commission but which according to information reaching the Commission amounts to £ IRL 1,2 million (± ECU 1,5 million), should be refunded.
The refunds are to be collected in accordance with the procedures and provisions of Irish legislation and in particular provisions concerning interest on overdue sums owed to the State, to be calculated from the date when the aid in question was granted.
This is a necessary measure in order to restore the previous situation by cancelling all the financial advantages the recipients of the improperly granted aid have enjoyed unduly since the date of payment of the aid.
This Decision does not anticipate any consequences which the Commission may draw, if necessary, in connection with the financing of the common agricultural policy through the European Agricultural Guidance and Guarantee Fund (EAGGF),
HAS ADOPTED THIS DECISION:
Article 1
The aid for producers and/or exporters of mushrooms granted by the Market Development Fund, c/o An Bord Tráchtála (The Irish Trade Board), is illegal. Such aid is, moreover, incompatible with the common market within the meaning of Article 92 of the EC Treaty.
Article 2
Ireland is hereby required to cancel the aid referred to in Article 1 and to recover the sums paid out, within two months from the notification of this Decision.
This recovery shall be carried out in accordance with the procedures and provisions of national legislation and in particular in accordance with those concerning interest payable on overdue sums owed to the State. The amounts to be recovered shall bear interest from the date on which the aid in question was granted.
Article 3
Ireland shall inform the Commission, within two months from the notification of this Decision, about the measures that it has taken to comply with Article 2.
Article 4
This Decision is addressed to Ireland.
Done at Brussels, 14 September 1994.
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COMMISSION REGULATION (EC) No 2541/95 of 30 October 1995 adopting for 1996 the measures to improve the quality of olive oil production
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 organization of the market in oils and fats (1), as last amended by the Act of Accession of Austria, Finland and Sweden and by Regulation (EC) No 3290/94 (2), and in particular Article 5 (5) thereof,
Whereas, pursuant to Article 5 (4) of Regulation No 136/66/EEC, a percentage of the production aid earmarked for olive oil producers may be allocated to financing action at regional level to improve the quality of olive oil production; whereas, under Article 4 of Council Regulation (EC) No 1875/94 (3), 1,4 % of the production aid earmarked for olive oil producers in the relevant Member States has been allocated to financing action to improve the quality of olive oil in those countries;
Whereas rules for the execution and monitoring of the operations in question should be laid down; whereas the tasks that may be assigned to producers' organizations should also be defined;
Whereas the measures laid down for 1995 should be maintained so as to provide for a wide selection on the basis of the requirements and opportunities existing in each Member State;
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
1. This Regulation specifies the action to be taken during the period 1 January to 31 December 1996 to improve the quality of olive oil production.
2. Action shall be taken in the following areas:
(a) control of the olive fly (Dacus oleae) and, where appropriate, other harmful organisms;
(b) improvement of the treatment of olive trees, of the cropping, storage and processing of olives and of the storage of the oils produced;
(c) technical assistance during the year to olive growers and to mills with a view to improving the quality, production and processing of olives into oil;
(d) the installation and/or the management of tasting rooms to assess the organoleptic characteristics of the virgin olive oils;
(e) the installation and/or the management at regional or provincial level of laboratories to analyse the physical and chemical properties of olive oils;
(f) collaboration with bodies specializing in research programmes to improve the quality of olive oil.
Article 2
Expenditure on action as defined in this Regulation shall be financed by resources arising from the deduction made from the production aid pursuant to Article 4 of Regulation (EC) No 1875/94. The distribution of resources for the financing of action shall be based on the amount withheld in each Member State.
Article 3
On the basis of the resources available, each Member State shall draw up a programme covering part or all of the field of action indicated in Article 1.
Article 4
In the case of action as indicated in Article 1 (2) (a), the programme shall comprise:
(a) a list of the olive oil production zones in which action against the olive fly is to be considered a matter of priority in view of the likely impact of the programme on the quality of the oil produced and the impact of the production volume involved;
(b) where regional situations so dictate, a list of the olive oil production zones in which action against other harmful organisms is to be considered a matter of priority in view of the likely impact of the programme on the quality of the oil produced and the impact of the production volume involved;
(c) a plan for establishing or maintaining a monitoring, warning and assessment system in each priority production zone, comprising in particular:
- means of measuring the population of olive fly or of other harmful organisms,
- a warning and treatment prescription mechanism,
- means of training and briefing producers,
- means of assessing the warning mechanism and the effects of treatment;
(d) a draft plan for effecting treatment necessary in each production zone.
Article 5
In the case of action as indicated in Article 1 (2) (b), the programme shall comprise:
- a product training course covering treatment of olive trees, the optimum cropping period and cropping and processing methods,
- a training course for mill managers and technical staff on olive storage and processing methods and on the quality and storage of the oils produced.
Article 6
In the case of action as indicated in Article 1 (2) (c), the programme shall comprise a detailed description of the technical assistance contract, the area involved, the proposed objectives and the means to be used to achieve them.
Article 7
In the case of action as indicated in Article 1 (2) (d), the programme shall comprise the specifications proposed for the installation and/or management of tasting rooms, account being taken of the information set out in Annex XII to Commission Regulation (EEC) No 2568/91 (1).
Article 8
In the case of action as indicated in Article 1 (2) (e), the programme shall comprise a description of the analyses to be carried out, and of the equipment to be acquired.
Article 9
In the case of action under Article 1 (2) (f), the programme shall include a detailed description of the scientific research, aims and methods, and whether the research organization or organizations specialize in research.
Article 10
1. Each Member State concerned shall transmit its action programme to the Commission by 30 November 1995 at the latest.
The programme shall comprise:
(a) a detailed description of the action planned, giving duration and costs;
(b) a list of all products and equipment required, with unit costs;
(c) a list of the centres, bodies or producers' organizations responsible for execution of the various actions.
2. Within 30 days of receipt of the programme, the Commission may ask the Member State to make any changes it considers desirable. The Member State shall adjust the programme in accordance with the Commission's requests.
3. The programme shall be adopted definitively by the Member State by 31 January 1996 at the latest and transmitted immediately to the Commission.
The contracts or agreements with the centres, bodies or producers' organizations responsible for implementing the measures or the administrative provisions adopted by the Member State with regard to the said centres, bodies or producers' organizations shall be concluded or adopted to take effect on 1 March 1996.
Those contracts or agreements may be multiannual and shall be subject to adjustments resulting from the approval by the Commission of subsequent programmes.
The Member States shall use the standard contract provided by the Commission.
The Member State shall be responsible for execution of the programme.
4. Expenditure arising from the programme adopted by the Member State, as adjusted in line with any requests made by the Commission, shall be eligible under this Regulation.
However, expenditure on:
- carrying out treatment as referred to in Article 4,
- testers' allowances and the salaries of laboratory personnel;
shall be chargeable only to a maximum of 75 %.
5. The contractor's general costs, including any subcontracting costs, shall be limited to a maximum of 2 % of the overall eligible expenditure.
Article 11
Treatments may be carried out by olive oil producer groups or associations thereof recognized under Article 20c of Regulation No 136/66/EEC.
When insecticides are used in anti-olive-fly treatment, such treatment must be carried out in conjunction with protein traps. However, in special circumstances and under the direction of the bodies responsible for prescribing treatment, different procedures for insecticide use may be authorized. Insecticides and application methods must be such that no residue can be detected in oil produced from olives from treated zones.
Integrated biological pest control methods may also be used.
Article 12
Payments in connection with:
- contracts and agreements concluded or adopted by the Member State with the centres, bodies or organizations referred to in Article 10 (1) (c), or - the administrative arrangements made by the Member State with regard to such centres, bodies or organizations,
shall be made-up on presentation of documentary proof of the expenditure incurred and after the competent authorities have checked the said documents and have verified that the obligations laid down have been observed.
At the time of signing of the contract or agreement, the contractor shall lodge a security equal to at least 4 % of the value of the contract or the agreement to guarantee its performance. Where contracts or agreements cover a period of more than one year, the security shall be calculated on the basis of the value of each annual part of the contract.
The security shall be released subject to verification by the Member State of performance of the measure provided for in the contract or agreement within the time limits laid down therein or during the annual period applicable.
Advances of up to 30 % may be paid following the signing of the contract or agreement or on adoption of the administrative provisions, against the lodging of a security for an equivalent amount.
Further advances may be decided, against the lodging of an equal amount as security, when the Member State has been provided with supporting documents for expenditure effected using funds advanced previously.
Release of the security shall be subject to:
(a) transmission to the Member State of the documentary evidence in support of the expenditure effected,
(b) verification of such documentation and acknowledgment that the obligations laid down have been observed.
However, the Member State may stand surety for the centres and bodies referred to in Article 10 (1) (c) having the status of public establishments.
Where securities are forfeited they shall be deducted from the expenditure incurred by the European Agricultural Guidance and Guarantee Fund, Guarantee Section.
All centres, bodies or producer organizations responsible for carrying out the measures shall forward to the Member State within two months of the final date set in the contract for carrying out the measures, a detailed report on use of the Community funds and the results of the measures concerned. If the report is forwarded after the time limit of two months, 10 % of the Community funding per measure shall be deducted for each month or part thereof after the expiry of the time limit. The penalty shall be deducted from the expenditure incurred by the European Agricultural Guidance and Guarantee Fund, Guarantee Section.
Article 13
The Member States concerned shall monitor the application of their programmes in order to ensure that operations for which financing is granted are executed correctly. To this end, the Member States concerned shall carry out:
- administrative and accounting checks to verify the costs for which assistance was given,
- checks - on-the-spot checks in particular - to verify that the measures have been carried out in conformity with the provisions of the contract, the agreement or the administrative arrangements.
They shall inform the Commission of the monitoring measures provided for when transmitting the programme referred to in Article 3.
The Commission may also, if it deems advisable, request any amendment to the control arrangements.
A report on the execution of the programme and the monitoring measures carried out with reference to the forecasts shall be drawn up by the Member States concerned and transmitted to the Commission before 1 May 1997.
Article 14
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 October 1995.
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*****
COMMISSION DECISION
of 13 January 1988
amending Decision 84/128/EEC on establishing an Industrial Research and Development Advisory Committee (IRDAC)
(88/46/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 155 thereof,
Whereas it is appropriate to adjust the procedure laid down in Commission Decision 84/128/EEC (1), as amended by Decision 86/9/EEC (2), relating to the changeover from the first term of office of three years for Committee members to the second one, and to ensure continuity of work,
HAS ADOPTED THIS DECISION:
Article 1
Article 4 (1) of Decision 84/128/EEC is hereby replaced by the following:
'1. The term of office for a Committee member shall be three years. It may be renewed for a full second term, or fraction thereof, for members in charge of specific tasks. Members of the Committee shall remain in office until such time as they are replaced.'
Article 2
This Decision shall apply with effect from 1 January 1988.
Done at Brussels, 13 January 1988.
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TWENTY-FOURTH COMMISSION DIRECTIVE 2000/6/EC
of 29 February 2000
adapting to technical progress Annexes II, III, VI and VII to Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products(1), as last amended by Commission Directive 98/62/EC(2), and in particular Article 8(2) thereof,
After consulting the Scientific Committee on Cosmetic Products and Non-Food Products intended for Consumers,
Whereas:
(1) Tallow derivatives, such as fatty acids, glycerine, esters of fatty acids and soaps and fatty alcohols, fatty amines and fatty amides derived therefrom, are considered safe for use in the manufacture of cosmetic products with regard to the risk of contracting transmissible spongiform encephalopathies if they are prepared in strict accordance with specific physico-chemical processes in which temperature is the decisive parameter on which the corresponding pressure conditions depend. Annex II to the abovementioned Directive should therefore be amended accordingly.
(2) Harmful secondary effects have been shown to arise following prolonged use of hydroquinone as skin-lightening cream. This particular use of hydroquinone must not therefore be authorised, meaning that Part I of Annex III to the abovementioned Directive needs to be amended. Studies also show that the concentration of hydroquinone used in hair dyes does not have harmful effects for health if it does not exceed 0,3 %. Part I of Annex III to the abovementioned Directive must be amended accordingly.
(3) On the basis of new scientific data, benzalkonium chloride, bromide and saccharinate have recently been added to the list of substances which may be used as preservatives in the manufacture of cosmetic products set out in Part 1 of Annex VI to the abovementioned Directive. In the light of experience, it is also acceptable for these benzalkonium salts to be used for other purposes in cosmetic products, according to the length of their carbon chain, provided that the maximum authorised concentrations are observed. These specific characteristics therefore justify their inclusion in the list Part 1 of Annex III.
(4) The cosmetics industry has supplied new scientific data based on studies of the percutaneous absorption of acqueous solutions of boric acid, borates and tetraborates at various pH numbers and at various concentrations showing that the requirement that pH should be neutral or slightly alkaline in order to minimise the percutaneous absorption of these boron derivatives is not justified. The list of substances which cosmetic products must not contain except subject to the restrictions and conditions laid down, set out in Part 1 of Annex III, should therefore be amended accordingly.
(5) In the concentrations in which it is normally used as a preservative in cosmetic products intended to be removed by rinsing, benzylhemiformal is not likely to cause harmful effects for human health. Therefore it should be removed from Part 2 of Annex VI to the abovementioned Directive which sets out the list of preservatives provisionally allowed in cosmetic products and included in Part 1 of Annex VI which contains the list of preservatives allowed in cosmetic products.
(6) In the concentrations in which it is normally used as a preservative in cosmetic products, 3-iodo-2-propynyl butylcarbamate is not likely to have harmful effects on human health. Therefore, it should be removed from the list in Part 2 of Annex VI and entered in the list in Part 1 of Annex VI.
(7) In the concentrations in which it is normally used as a UV filter for sunscreen cream, 4-dimethyl-amino-benzoate of ethyl-2-hexyl (octyl dimethyl PABA) is not likely to have harmful effects on the health of users. Therefore, it should be removed from Part 2 of Annex VII to the abovementioned Directive which sets out the list of UV filters that cosmetic products may provisionally contain and entered in Part 1 of Annex VII which contains the list of UV filters allowed in cosmetic products.
(8) In the concentrations in which it is normally used as a UV filter for sunscreen cream, 2-hydroxy-4-methoxybenzophenone-5-sulfonic acid (benzophenone-5) and its sodium salt is not likely to give rise to harmful effects for human health. Therefore, 2-hydroxy-4-methoxybenzophenone-5-sulfonic (benzophenone-5) and its sodium salt should be removed from Part 2 of Annex VII and entered in Part 1 of Annex VII.
(9) 4-isopropyl-benzyl salicylate is no longer used as a UV filter for sunscreen products. Consequently, 4-isopropyl-benzyl salicylate must be removed from Part 2 of Annex VII.
(10) Within the concentration limits and under the conditions adopted by the cosmetic industry for its use as a UV filter for sunscreen products, 2,2'-methylene-bis-6-(2H-benzotriazol-2-yl)-4-tetra-methyl-butyl-1,1,3,3-phenol, is not likely to produce harmful effects for the health of users. Therefore, it may be included in the list in Part 1 of Annex VII.
(11) Within the concentration limits and under the conditions adopted by the cosmetic industry for its use as a UV filter for sunscreen products, the monosodium salt of 2-2'-bis-(1,4-phenylene)1H-benzimidazole-4,6-disulfonic acid is not likely to have harmful effects on the health of users. Therefore, it may be included in the list in Part 1 of Annex VII.
(12) Within the concentration limits and under the conditions adopted by the cosmetic industry for its use as a UV filter for sunscreen products, (1,3,5)-triazine-2,4-bis-((4-(2-ethyl-hexyloxy)-2-hydroxy)-phenyl)-6-(4-methoxyphenyl) is not likely to have harmful effects on the health of users. Therefore, it may be included in the list in Part 1 of Annex VII.
(13) The measures provided for in this Directive are in accordance with the opinion of the Committee on the Adaptation to Technical Progress of the Directives on the Removal of Technical Barriers to Trade in the Cosmetic Products Sector,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Directive 76/768/EEC is hereby amended as indicated in the Annex to this Directive.
Article 2
Member States shall adopt the necessary measures to ensure that cosmetic products containing the substances listed in Annexes II, III, VI and VII to Directive 76/768/EEC, as set out in the Annex to this Directive, which are supplied to the final consumer after 1 January 2001, comply with the provisions of this Directive.
Article 3
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 July 2000 at the latest. They shall forthwith inform the Commission thereof.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article 4
This Directive shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.
Article 5
This Directive is addressed to the Member States.
Done at Brussels, 29 February 2000.
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COMMISSION REGULATION (EC) No 1137/2009
of 25 November 2009
entering a name in the register of protected designations of origin and protected geographical indications (Insalata di Lusia (PGI))
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 first subparagraph of Article 7(4) thereof,
Whereas:
(1)
Pursuant to the first subparagraph of Article 6(2) and in accordance with Article 17(2) of Regulation (EC) No 510/2006, Italy’s application to register the name ‘Insalata di Lusia’ was published in the Official Journal of the European Union (2).
(2)
As no statement of objection under Article 7 of Regulation (EC) No 510/2006 has been received by the Commission, that name should therefore be entered in the register,
HAS ADOPTED THIS REGULATION:
Article 1
The name contained in the Annex to this Regulation is hereby entered in the register.
Article 2
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 November 2009.
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Commission Regulation (EC) No 1317/2003
of 24 July 2003
fixing the rates of the refunds applicable to certain cereal and rice-products exported in the form of goods not covered by Annex I to the Treaty
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 13(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 Commission Regulation (EC) No 411/2002(4), and in particular Article 13(3) thereof,
Whereas:
(1) Article 13(1) of Regulation (EEC) No 1766/92 and Article 13(1) of Regulation (EC) No 3072/95 provide that the difference between quotations of prices on the world market for the products listed in Article 1 of each of those Regulations and the prices within the Community may be covered by an export refund.
(2) Commission Regulation (EC) No 1520/2000 of 13 July 2000 laying down common implementing rules for granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds(5), as last amended by Regulation (EC) No 740/2003(6), specifies the products for which a rate of refund should be fixed, to be applied where these products are exported in the form of goods listed in Annex B to Regulation (EEC) No 1766/92 or in Annex B to Regulation (EC) No 3072/95 as appropriate.
(3) In accordance with the first subparagraph of Article 4(1) of Regulation (EC) No 1520/2000, the rate of the refund per 100 kilograms for each of the basic products in question must be fixed for each month.
(4) The commitments entered into with regard to refunds which may be granted for the export of agricultural products contained in goods not covered by Annex I to the Treaty may be jeopardised by the fixing in advance of high refund rates. It is therefore necessary to take precautionary measures in such situations without, however, preventing the conclusion of long-term contracts. The fixing of a specific refund rate for the advance fixing of refunds is a measure which enables these various objectives to be met.
(5) Now that a settlement has been reached between the European Community and the United States of America on Community exports of pasta products to the United States and has been approved by Council Decision 87/482/EEC(7), it is necessary to differentiate the refund on goods falling within CN codes 1902 11 00 and 1902 19 according to their destination.
(6) Pursuant to Article 4(3) and (5) of Regulation (EC) No 1520/2000 provides that a reduced rate of export refund has to be fixed, taking account of the amount of the production refund applicable, pursuant to Council Regulation (EEC) No 1722/93(8), as last amended by Commission Regulation (EC) No 1786/2001(9), for the basic product in question, used during the assumed period of manufacture of the goods.
(7) Spirituous beverages are considered less sensitive to the price of the cereals used in their manufacture. However, Protocol 19 of the Act of Accession of the United Kingdom, Ireland and Denmark stipulates that the necessary measures must be decided to facilitate the use of Community cereals in the manufacture of spirituous beverages obtained from cereals. Accordingly, it is necessary to adapt the refund rate applying to cereals exported in the form of spirituous beverages.
(8) In accordance with Council Regulation (EC) No 1039/2003 of 2 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in Estonia and the exportation of certain agricultural products to Estonia(10), Council Regulation (EC) No 1086/2003 of 18 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in Slovenia and the exportation of certain processed agricultural products to Slovenia(11), Council Regulation (EC) No 1087/2003 of 18 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in Latvia and the exportation of certain processed agricultural products to Latvia(12), Council Regulation (EC) No 1088/2003 of 18 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in Lithuania and the exportation of certain processed agricultural products to Lithuania(13), Council Regulation (EC) No 1089/2003 of 18 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in the Slovak Republic and the exportation of certain processed agricultural products to the Slovak Republic(14) and Council Regulation (EC) No 1090/2003 of 18 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in the Czech Republic and the exportation of certain processed agricultural products to the Czech Republic(15) with effect from 1 July 2003, processed agricultural products not listed in Annex I to the Treaty which are exported to Estonia, Slovenia, Latvia, Lithuania, Slovakia or Czech Republic are not eligible for export refunds.
(9) In accordance with Council Regulation (EC) No 999/2003 of 2 June 2003 adopting autonomous and transitional measures concerning the import of certain processed agricultural products originating in Hungary and the export of certain processed agricultural products to Hungary(16), with effect from 1 July 2003, the goods referred to in its Article 1(2) which are exported to Hungary shall not be eligible for export refunds.
(10) It is necessary to ensure continuity of strict management taking account of expenditure forecasts and funds available in the budget.
(11) 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 rates of the refunds applicable to the basic products appearing in Annex A to Regulation (EC) No 1520/2000 and listed either in Article 1 of Regulation (EEC) No 1766/92 or in Article 1(1) of Regulation (EC) No 3072/95, exported in the form of goods listed in Annex B to Regulation (EEC) No 1766/92 or in Annex B to amended Regulation (EC) No 3072/95 respectively, are hereby fixed as shown in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 25 July 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 July 2003.
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COMMISSION REGULATION (EC) No 943/2006
of 26 June 2006
amending Regulation (EC) No 2707/2000 laying down rules for applying Council Regulation (EC) No 1255/1999 as regards Community aid for supplying milk and certain milk products to pupils in educational establishments
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 Articles 15 and 47, second indent, thereof,
Whereas:
(1)
Article 14(3) of Regulation (EC) No 1255/1999 fixes the amounts of aid to be granted for the supplying of milk products to pupils for the period from 1 July 2005 until 30 June 2006.
(2)
In order to facilitate national administrations and those charged with implementing the school milk scheme to process the aid payments, a transitional provision in the case of change of the rate was introduced at the end of the school year 2004/2005 in Commission Regulation (EC) No 2707/2000 (2).
(3)
Member States where the school year 2005/2006 ends in July will still find difficulties in processing the aid payments because of the change of aid rate. It is appropriate to extend the same provision to the school year 2005/2006.
(4)
Regulation (EC) No 2707/2000 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
In Article 4(3) of Regulation (EC) No 2707/2000, the second subparagraph is replaced by the following:
‘However, for school year 2005/2006, the aid rate in force on the first day of June may be applied during the month of July if a school year in the Member State ends in July.’
Article 2
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 June 2006.
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COUNCIL REGULATION (EC) No 495/98 of 23 February 1998 imposing a definitive anti-dumping duty on imports of ferro-silico-manganese originating in the People's Republic of China, amending Regulation (EC) No 2413/95 in respect of anti-dumping measures concerning imports of ferro-silico-manganese originating in Ukraine and terminating the proceeding in respect of imports of ferro-silico-manganese originating in Brazil, South Africa and Russia
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (1), and in particular Articles 9(4) and 11(3) thereof,
Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,
Whereas:
A. PROCEDURE
1. General
(1) By Regulation (EC) No 2413/95 (2), the Council imposed definitive anti-dumping duties on imports of ferro-silico-manganese originating in Brazil, Russia, South Africa and Ukraine. The measures imposed took the form of variable duties, set as the difference between a minimum import price for each of the countries concerned and the net free-at-Community frontier price, before duty, in all cases where the net, free-at-Community frontier price, before duty, is less than the minimum import price.
(2) In addition, the Commission accepted undertakings (3) offered by the South African and Ukrainian exporters. Subsequently, however, one of the South African exporters withdrew its undertaking, thus necessitating the amendment of the definitive measures imposed by Regulation (EC) No 2413/95 by Regulation (EC) No 92/96 (4) and the imposition of a variable duty against the company in question. Unless otherwise specified, the investigation which led to the imposition of the above measures is hereinafter referred to as 'the original investigation`.
(3) In Regulation (EC) No 2413/95, the Council requested the Commission to examine the Community market for ferro-silico-manganese following the imposition of the measures and to initiate a review thereof as promptly as possible, if the circumstances so warranted. As the available economic indicators showed that the market price for the product in question had dropped by 13 % between October 1995 and August 1996, it was decided to initiate an interim review of the measures for all the countries concerned.
(4) To this end, on 17 December 1996, the Commission announced, by a notice published in the Official Journal of the European Communities (5), the initiation of an interim review of Regulation (EC) No 2413/95, in respect of ferro-silico-manganese originating in Brazil, Russia, South Africa and Ukraine, and commenced an investigation (hereinafter referred to as the 'review investigation`) pursuant to Article 11(3) of Regulation (EC) No 384/96 (hereinafter referred to as 'the Basic Regulation`).
(5) On the same date, a parallel investigation (6) was initiated in respect of imports of ferro-silica-manganese originating in the People's Republic of China (hereinafter referred to as the 'new investigation`), following a complaint lodged by EuroAlliages, the Association representing the Community producers of ferro-silico-manganese.
(6) By Regulation (EC) No 1778/97 (7) (hereinafter referred to as the 'provisional Regulation`), the Commission imposed a provisional anti-dumping duty on imports into the Community of the product in question originating in the People's Republic of China.
(7) This Regulation therefore contains the definitive findings for both the new investigation concerning the People's Republic of China and the review investigation concerning Brazil, Russia, South Africa and Ukraine. Owing to the need for further, detailed examination of certain of the issues raised in both cases, the investigations exceeded the normal period of twelve months provided for in Articles 6(9) and 11(5) of the Basic Regulation.
(8) The Commission sought and verified all information it deemed necessary for the purposes of a definitive determination in both investigations.
2. Review investigation
(9) As concerns the review investigation, the Commission officially advised the Brazilian, Russian, South African and Ukrainian exporting companies, as well as the importers known to be concerned, the representatives of the exporting countries and the complainant in the original investigation of the initiation of the investigation. The parties directly concerned were also given the opportunity to make their views known in writing and if they so requested were granted an opportunity to be heard by the Commission. Written submissions were made by certain interested parties, making known their views on the findings.
With regard to the review investigation, the Commission, furthermore, sent questionnaires to all parties known to be concerned and received replies from two companies in Brazil, from two in South Africa and from two in Ukraine. The Commission also received a reply from an importer located in the United Kingdom, related to one of the South African companies.
(10) Verification visits with respect to the review investigation were carried out at the premises of the following companies:
(a) Community producers (also concerned in the new investigation):
- Sadaci S.A. Belgium,
- Dunkerque Electrométallurgie (DEM), France,
- Ferroatlántica S.A., Spain,
- Hidro-Nitro S.A., Spain,
- Fornileghe S.p.A., Italy,
- Italghisa S.p.A., Italy,
- Elettrosiderurgica Italiana S.p.A., Italy;
(b) producers/exporters in Brazil:
- Companhia Paulista de Ferro-Ligas (hereinafter referred to as 'CPFL`),
- Sibra Electrosiderurgica Brasileira S.A. (hereinafter referred to as 'Sibra`);
(c) producers/exporters in South Africa:
- Samancor Limited (hereinafter referred to as 'Samancor`),
- Highveld Steel and Vanadium Corporation Limited (hereinafter referred to as 'Highveld`);
(d) importer related to a South African producer/exporter:
- Samancor International Ltd, London (hereinafter referred to as 'SIL`).
(11) All the parties concerned were informed of the essential facts and considerations on the basis of which it was intended to recommend definitive measures in the review investigation. All parties were granted a period within which representations could be made. Their representations were taken into consideration and, where appropriate, the findings have been changed accordingly.
3. New investigation
(12) Following the imposition of the provisional anti-dumping measures concerning imports from the People's Republic of China, certain interested parties submitted comments in writing. Parties who so requested were granted an opportunity to be heard by the Commission.
(13) All the parties concerned were informed of the essential facts and considerations on the basis of which it was intended to recommend the imposition of definitive measures in the new investigation concerning the People's Republic of China. All parties were granted a period within which representations could be made. Their representations were taken into consideration and, where appropriate, the findings have been changed accordingly.
4. Investigation period
(14) For both investigations, dumping was examined for the period from 1 January 1996 to 30 September 1996 (hereinafter referred to as 'the investigation period`). The examination of injury, and of the likelihood of recurrence of injury, covered the period from January 1993 to the end of 1996 with the actual figures for the whole year 1996 being used. This was possible, exceptionally, as the investigation was initiated very close to the end of 1996 and led to a more accurate year to year comparison, instead of figures extrapolated from the nine month investigation period. The detailed calculations for undercutting and underselling were, however, based on data established for the investigation period only.
B. PRODUCT UNDER CONSIDERATION AND LIKE PRODUCT
1. Product under consideration
(15) The product under consideration in both investigations is ferro-silico-manganese (hereinafter referred to as 'FeSiMn`) falling within CN Code 7202 30 00. FeSiMn is used in the steel industry for deoxidization and as an alloy. It is mainly produced from manganese ore and silicon which are mixed together and brought to fusion temperatures in a furnace.
FeSiMn exists in different qualities and is sold in different grain or lump sizes. Despite these differences, all qualities and sizes have been considered as a single product since they share the main physical and technical characteristics and main uses.
(16) In the course of the investigations, it was established that 90 % of consumption of FeSiMn in the Community consists of so-called 'standard quality FeSiMn` which has a manganese content of 65 % or more, a silicon content of 16 % or more (typically 17 %), a maximum carbon content of 2 % (typically 1,8 %), a maximum phosphorus content of 0,25 % and a maximum sulphur content of 0,04 %. The grain or lump dimensions of the standard quality product range from 10 mm to 200 mm. The remainder of Community consumption consists of other (non-standard) qualities, including 'low-carbon FeSiMn` (with a maximum carbon content of 0,10 %) and 'fines` or 'chips` which have a grain size of less than 10 mm.
(a) Low-carbon FeSiMn
(17) Following the imposition of provisional measures in the new investigation, certain companies argued that 'low-carbon` FeSiMn should be excluded from the scope of the measures. In this respect, it is noted again that although certain slight differences exist within the range of qualities which go to make up the like product, all qualities can be considered to be a single product since their main physical and technical characteristics and uses are the same.
(b) Extension of the definition of the product under consideration
(18) During the course of both investigations, EuroAlliages requested that the scope of the product under consideration be extended so as to include goods falling under CN code ex 8111 00 11 (i.e. 'unwrought manganese; powders`). EuroAlliages considered that this product was alike to FeSiMn imported under CN Code 7202 30 00.
(19) In order to investigate this issue further, EuroAlliages was invited to furnish additional data as well as to provide detailed information concerning the interchangeability of the two types of goods concerned. In this regard, however, EuroAlliages was not able to provide to the satisfaction of the Commission sufficient substantiated evidence in support of its request.
In consequence, the conclusion has been drawn that an extension of the product definition is not appropriate.
(20) It follows from the above that the product under consideration in the measures under review and in the provisional Regulation, is the same.
2. Like product
(21) As in the original investigation, it was found that FeSiMn produced and sold domestically or exported from Brazil and South Africa has the same basic physical and technical characteristics and uses as that produced in the Community and, therefore, can be considered as a like product within the meaning of Article 1(4) of the Basic Regulation.
(22) Similarly, FeSiMn exported by Russia, Ukraine and the People's Republic of China to the Community was found to be sufficiently alike not only to that produced by the Community industry but also to that produced and sold for domestic consumption in Brazil, the analogue country used for establishing the normal value for such exports from Ukraine and the People's Republic of China.
C. DUMPING
1. Brazil
(a) Preliminary remark
(23) As in the original investigation, the two cooperating Brazilian companies are related to one another (CPFL being a subsidiary of Sibra) and have therefore been regarded as forming one legal and economic entity.
(b) Dumping margin
(24) It was established that the two cooperating companies had made no exports of the product under consideration to the Community during the investigation period, therefore it was not possible to calculate a dumping margin for them.
(25) Examination of Eurostat data showed that a relatively small amount of 2 019 tonnes of FeSiMn had been imported from Brazil into the Community during the investigation period (out of a total consumption in the Community of approximately 538 000 tonnes). One other producer of FeSiMn is known to exist in Brazil, therefore, these imports into the Community have been attributed to this company. In order to establish a dumping margin for the non-cooperating company, it is necessary in accordance with Article 18 of them Basic Regulation to use the facts available. In this particular case, the most appropriate facts available were considered to be the domestic sales of the cooperating exporters in Brazil as the basis for calculating normal value, and available Eurostat import data as the basis for calculating the export price. A comparison thus made between normal value and export price showed no dumping.
2. Russia
(26) One company located in Russia, Promsyrioimport, contacted the Commission after initiation of the review investigation and stated that it had made no exports of the product under consideration during the investigation period (see recital 10). In addition, examination of Eurostat data showed that only a minimal quantity of 25 tonnes of FeSiMn were imported from Russia into the Community during the investigation period (out of a total consumption in the Community of approximately 538 000 tonnes). In view of the negligible quantity of these imports, it was neither considered necessary nor appropriate to calculate whether they were at dumped price levels.
3. South Africa
(a) Normal value
(27) The investigation established that one producer's domestic sales volume of FeSiMn significantly exceeded the quantities of FeSiMn exported to the Community during the investigation period. Accordingly, the requirement of Article 2(2) of the Basic Regulation concerning the representativeness of domestic sales when compared with export sales was satisfied.
As concerns the prices of these sales, it was found that a number of domestic transactions in the investigation period were made at prices which were below the weighted average unit cost of the company during the same period. By volume, these sales accounted for more than 20 % and less than 90 % of its total sales to independent customers. In accordance with Article 2(4) of the Basic Regulation, these loss-making sales were disregarded for the purposes of calculating normal value, with normal value established on the basis of the remaining, profitable sales.
(28) As concerns the other producer, the investigation showed that this company had exclusively exported non-standard quality FeSiMn to the Community during the investigation period (FeSiMn 'chips`). Domestic sales of the same quality FeSiMn chips had also taken place during the investigation period, but in quantities which were insufficient to satisfy the requirement of Article 2(2) of the Basic Regulation concerning the representativeness of the quantity of domestic sales when compared to the quantity exported. In accordance, therefore, with the provisions of Article 2(3) of the Basic Regulation, cost of production plus a reasonable amount for selling, general and administrative costs and for profit was used as the basis for establishing normal value.
(b) Export price
(29) The investigation showed that one company's export sales of FeSiMn to the Community during the review investigation period had been made through a related importer based in the UK. In view of this association, the company's sales prices of FeSiMn exported to its related importer in the Community were considered unreliable for the purpose of establishing the export price in this investigation. In accordance, therefore, with the provisions of Article 2(9) of the Basic Regulation, the export price of this company was constructed on the basis of the weighted average sales prices of this related importer to the first independent buyer in the Community.
(30) In accordance with Article 2(9) of the Basic Regulation, adjustments made included transport, insurance, handling, loading and ancillary costs and a reasonable margin for all selling, general and administrative expenses (hereinafter referred to as 'SGA`) and profits. As concerns the adjustment for profits, a profit margin for the related importer of 3 % was considered to be reasonable. This margin was also used in the original investigation for the purpose of calculating the company's export price.
(31) As concerns the other company, the export price of this company was established in accordance with Article 2(8) of the Basic Regulation, i.e. on the basis of the prices paid or payable.
(c) Comparison
(32) For the purpose of ensuring a fair comparison between normal value and export price, due allowance in the form of adjustments was made in accordance with Article 2(10) of the Basic Regulation where it was claimed and demonstrated that differences affected price comparability. In this regard, adjustments were made for transport, packing and credits costs.
(33) In accordance with the provisions of Article 2(11) of the Basic Regulation, the normal value of each company was compared to the export price of each company on a weighted average to weighted average basis, at ex-works level and at the same level of trade.
(d) Dumping margins
(34) The dumping margins thus established, expressed as a percentage of the CIF Community frontier price, were as follows:
- Samancor Limited: 0,0 %,
- Highveld Steel and Vanadium Corporation Limited: 0,0 %.
(35) As there are no other known producers of FeSiMn in South Africa and in view of the findings with regard to likelihood of recurrence of injury by South Africa (see Recital 109), it was not considered necessary to calculate a residual dumping margin.
4. Ukraine
At the outset, it should be pointed out that two Ukrainian exporting producers, namely Nikopol Ferroalloy plant (hereinafter referred to as 'Nikopol`) and Zaporozhye Ferro Alloys Plant (hereinafter referred to as 'Zaporozhye`) responded to the questionnaire. However, the latter company stated that it had not exported the product under consideration to the Community during the investigation period.
(a) Analogue country
(36) The Ukrainian authorities submitted that Ukraine should be treated as a market economy country for the purpose of the present review investigation. In this respect, it is noted that Article 2(7) of the Basic Regulation, in conjunction with Council Regulation (EC) No 519/94 (8), requires the Community institutions to consider Ukraine as a non-market economy country in the framework of anti-dumping proceedings in general and, consequently, also for the purposes of the present investigation.
(37) Accordingly, in order to calculate dumping, it is necessary to compare the export prices of Ukrainian producers/exporters with the prices or costs in a third country with a market economy (the 'analogue country`). To this end, the notice initiating the interim review envisaged the use of Brazil or the USA as an appropriate analogue country. In this regard, it should be recalled that Brazil also served as the analogue country for Ukraine in the original investigation.
(38) However, as it was not certain that cooperation would be forthcoming from Brazil or the USA (and in order not to delay the investigation in the event of non-cooperation), producers in Norway and India were also contacted with a view to seeking their cooperation in establishing the normal value for Ukraine. With the exception, however, of the two cooperating producers in Brazil, it was not possible to obtain sufficient cooperation in any of the other countries.
(39) In considering whether it would be appropriate and not unreasonable to use Brazil as the analogue country in the present review investigation, the following elements were taken into account:
- Brazil is a large-size market economy country with production and sale of FeSiMn governed by market forces,
- FeSiMn was imported into Brazil in not insignificant quantities during the investigation period, thus indicating that it is an open market,
- considerable quantities produced in Brazil were found to have been sold domestically during the investigation period, not only by the two cooperating companies but also by another Brazilian producer, which also indicates that it is a competitive market,
- the quantities sold domestically by the cooperating producers in the investigation period were sufficient to be considered representative within the meaning of Article 2(2) of the Basic Regulation when compared to the quantities exported to the Community by Ukraine,
- the products produced in Brazil and Ukraine have similar physical and technical characteristics and applications,
- the conditions of access to raw materials in the two countries are considered to be comparable.
(40) In view of the foregoing, Brazil was selected as the analogue country. Both cooperating Ukrainian companies agreed to the selection of Brazil as an appropriate analogue country and no objections to this choice were raised by any of the other interested parties in the review investigation.
(b) Individual treatment
(41) Nikopol and the Ukrainian authorities both submitted that individual treatment was warranted in this particular case and that a separate dumping margin should be established for this company. The investigation therefore sought to establish whether Nikopol enjoyed a degree of legal and factual independence from the Ukrainian State comparable to that which would prevail in a market economy country and, to this end, detailed questions regarding ownership, management, control and determination of commercial and business policies were addressed to the company.
(42) On the basis of the information supplied, the company was unable to demonstrate to the satisfaction of the Commission that it was sufficiently independent from State control or interference and, accordingly, the claim for individual treatment was rejected.
(c) Normal value
(43) Normal value for Ukraine was consequently determined on the basis of the prices of domestic Brazilian sales made in the ordinary course of trade.
(d) Export price
(44) Examination of the data provided by Nikopol showed that the company's export volume to the Community only accounted for approximately 60 % of all imports into the Community from Ukraine during the investigation period (based on Eurostat). As concerns the remaining 40% of imports (hereinafter referred to as the 'residual imports`), it should be recalled that the other Ukrainian producer of FeSiMn, Zaporozhye, had stated that it had made no exports of the product under consideration to the Community in the investigation period.
(45) Examination of the detailed export data furnished by Nikopol showed that the company had apparently observed the undertaking offered in the original investigation. The other company, Zaporozhye, had made regular reports to the Commission of its sales to the Community in accordance with the terms of its undertaking. These reports confirmed that, during the investigation period, it had not exported the product under investigation to the Community.
(46) Given the apparent observance of the undertakings by the two Ukrainian producers, it was concluded that companies which did not make themselves known during the review investigation, situated inside or outside Ukraine, may have traded FeSiMn of Ukrainian origin and exported it to the Community.
(47) In order to determine the export price for FeSiMn originating in Ukraine, on the one hand, the data presented by Nikopol were used and, on the other hand, as far as the significant volume of exports to the Community of FeSiMn of Ukrainian origin made by non-cooperating companies is concerned, the export price had to be established on the basis of the facts available, the most reasonable of which were considered to be those reported in Eurostat.
(e) Comparison
(48) For the purpose of ensuring a fair comparison between normal value and export price, due allowance in the form of adjustments was also made in accordance with Article 2(10) of the Basic Regulation where it was claimed and demonstrated that differences affected price comparability. In this regard, adjustments were made, where appropriate, for transport, insurance and credit costs and for differences in physical characteristics.
(49) The adjustment necessary to establish the normal value on the basis of 'fob port, Brazilian frontier level` was calculated by using averages of the freight/handling costs between the production plants and the Brazilian ports in respect of their normal export sales.
(50) As the delivery terms for Nikopol's exports were DAF Community frontier, adjustments for freight/handling were made to the reported sales prices to bring them back to ex-Ukrainian frontier level. Since the export price for the residual imports was based on the cif Community frontier price as reported by Eurostat, an adjustment for freight/handling was made to bring them also back to ex-Ukrainian frontier level. The amount of this adjustment was determined, in accordance with Article 18 of the Basic Regulation, on the basis of data provided by Nikopol.
(51) As in the original investigation with regard to Nikopol, an additional adjustment was made to take account of differences in physical characteristics between the Brazilian product and the Ukrainian product due to the Ukrainian product's higher phosphorous content. This adjustment covered also, in accordance with the original investigation, an amount for crushing and screening costs incurred in the analogue country, but not in Ukraine.
(52) In accordance with the provisions of Article 2(11) of the Basic Regulation, the normal value established in the analogue country was compared to the export price on a weighted average to weighted average basis.
(f) Dumping margin
(53) On a country-wide basis, the dumping margin thus established for Ukraine, expressed as a percentage of the cif price, free-at-Community frontier, is 10,4 %.
5. The People's Republic of China
(a) Individual treatment
(54) Following imposition of the provisional measures, one Hong Kong based trader, Glory Profit Development Limited (hereinafter referred to as 'Glory Profit`) claimed that it and/or its related producers in the People's Republic of China should be granted individual treatment. This claim could not be accepted as neither Glory Profit nor its related producers applied for individual treatment within the deadlines specified in the questionnaires. Moreover, individual treatment cannot be granted to a trader which can purchase the product under investigation from any producer in the country concerned (see recital 18 of the provisional regulation). Also, the Chinese producers of FeSiMn related to Glory Profit do not qualify for individual treatment as they did not cooperate with the investigation.
(b) Arguments concerning analogue country and normal value
(55) As laid down in the provisional Regulation, Brazil was considered to be the most appropriate market economy analogue country for establishing normal value for the People's Republic of China. Following the imposition of the provisional measures, however, a cooperating importer questioned the use of Brazil as the analogue country, arguing that the two cooperating producers of FeSiMn in Brazil used for establishing normal value are owned by a Brazilian mining company which at the same time holds shares in a European FeSiMn producer. It was submitted that the calculation of the Brazilian normal value would be affected by the internal transfer prices for manganese ore between the producers of FeSiMn and a shareholder.
(56) It is considered, however, that such a situation does not contradict, and therefore affect, the findings in Recital 22 of the provisional Regulation, which sets out in detail the various reasons why Brazil is considered to be an appropriate analogue country for the People's Republic of China. In addition, it should be recalled that the normal value established in Brazil was based on domestic sales prices in Brazil, achieved in the normal course of trade. Also, no evidence was found during the investigation that the aforementioned shareholding would have affected prices or costs of the cooperating Brazilian producers because the sales were made on an arm's length basis.
It is therefore considered that the choice of Brazil as the analogue country for the People's Republic of China and the method for calculating normal value are appropriate, and are confirmed for the purpose of the definitive measures.
(c) Export price
(57) No new comments, evidence or arguments were received on this issue, therefore the findings set out in the provisional Regulation concerning export price are confirmed.
(d) Comparison
(58) It should be recalled that, for the provisional Regulation, a comparison of the export price with the normal value was carried out at the same delivery terms (i.e. the export price established at 'fob port, Chinese frontier` level was compared to normal value established at 'fob port, Brazilian frontier` level). Following the imposition of the provisional Regulation, the cooperating Chinese producers questioned the adjustments made to bring the Chinese export prices to an fob port, Chinese frontier basis.
(59) In this respect, it should be noted that in order to establish the fob port, Chinese frontier prices, not only the prices and sales conditions reported by the cooperating parties were taken into account, but also the prices established on the basis of the facts available for the non-cooperating producers/exporters.
(60) Since some of the transactions made by the cooperating parties were on a cif Community frontier price level, adjustments were made, where appropriate, for transport and insurance costs. In addition, it was noted that some of the transactions reported by the cooperating parties were made via traders located in third countries. The functions performed by these traders were considered to be similar to those of a trader acting on commission basis, therefore, it was considered appropriate to make an adjustment to these transactions to take account of the traders' SGA and a reasonable amount for profits, in order to arrive at a fob port, Chinese frontier price.
(61) Adjustments were also made to the transactions attributed to the non-cooperating companies. As set out in the provisional Regulation, the export price for non-cooperating companies was established on the basis of the facts available. In this respect, it was considered appropriate to calculate the export price on a representative set of the lowest import transactions found for the biggest cooperating traders (see recital 26 of the provisional Regulation). Since the import transactions related to Community frontier prices, it was considered appropriate to make an adjustment for transport and insurance costs as well as for the commission covering traders' SGA expenses and a reasonable amount for profits.
(62) Following observations from the cooperating Chinese exporters, the question of the adjustment for commissions has been reviewed, since it was established that only a certain proportion of the Chinese transactions reported by the cooperating companies were made via traders in third countries. This led to a proportional correction of the adjustment, which in turn led to a slightly higher fob port, Chinese frontier export price.
(63) The cooperating Chinese companies also questioned the established practice of the Community Institutions of comparing the normal value with the export price at a fob national frontier level in anti-dumping investigations involving non-market economy countries. These companies did not, however, propose an alternative level or method of comparison.
Notwithstanding the comments of these parties, it is considered that fob national frontier level is normally the best method for ensuring a reliable and non-discriminatory comparison between normal value and export price since it avoids reliance on, (or estimation of), cost data in non-market economy countries.
Accordingly, the methodology used for comparison purposes in the provisional Regulation is confirmed.
(e) Dumping margin
(64) In view of the foregoing, the dumping margin for the People's Republic of China was calculated to have decreased from the provisional level of 26,1 % to a definitive margin of 25,7 %.
D. DEFINITION OF THE COMMUNITY INDUSTRY
(65) The six Community producers supporting the new complaint and cooperating in the review investigation were identical (see recital 9). In addition to these producers, two other producers were known to produce FeSiMn in the Community. One of them also supported the complaint and fully cooperated in the investigation.
The abovementioned seven cooperating producers account for almost all of the Community production of FeSiMn. Consequently, in accordance with Article 4(1) of the Basic Regulation the investigation of injury has focused on the economic situation of these seven producers, which are referred to as the 'Community industry` hereinafter.
E. INJURY
1. Preliminary remark
(66) It should be recalled that it was the conclusion of the Commission in the provisional Regulation that imports of FeSiMn originating in the People's Republic of China had caused material injury to the Community industry, when taken in isolation. In order to reflect the fact that this Regulation sets out the conclusions reached in the new and in the review investigations, the findings set out in the provisional Regulation applicable also to the review investigation are again set out below. All these findings are confirmed for the purpose of the definitive determination since they were not disputed by any of the parties.
2. Consumption in the Community
(67) The total consumption of FeSiMn in the Community was established on the basis of the total imports into the Community (Eurostat import statistics, plus the total sales made by the Community industry on the Community market. No reliable information was obtained from the one Community producer which did not support the complaint. However, according to available information, its sales on the Community market were negligible when compared with available data regarding total Community consumption and were therefore disregarded in the assessment of injury.
(68) Between 1993 and 1996 Community consumption of the product by weight concerned increased by 32 887 tonnes, or 7 %. During the same period, the consumption by value increased by 25 %. The difference between the two above trends may be explained by the fact that one type of FeSiMn, with a low carbon content, commands a higher price than standard types and was exported in increasing quantities to the Community market during the period under consideration, notably by Norway.
3. Imports of FeSiMn in the Community
(a) Appropriateness of cumulation
(69) In the original investigation the Commission concluded that, for the purpose of injury analysis, the effect of the dumped imports from Brazil, South Africa, Russia and Ukraine should be assessed cumulatively. It was considered that the product under consideration was imported from each exporting country in substantial quantities, held a significant market share and competed both with each other and with the FeSiMn manufactured by the Community industry.
(70) Imports originating in the People's Republic of China and Ukraine were, throughout the period under examination, made in significant quantities. Exports from Ukraine even increased in 1996 when compared to export levels in 1995. However, the question as to whether or not imports from the People's Republic of China and Ukraine should be cumulated can be left undecided since, as shown below, the Chinese imports have, when assessed in isolation, caused material injury to the Community industry while there is a strong likelihood of a recurrence of injury with regard to imports from the Ukraine should measures on these imports be repealed.
As far as imports originating in Brazil, Russia and South Africa are concerned, a cumulative analysis of these imports together with those originating in the Ukraine and the People's Republic of China appeared unnecessary in the framework of the present injury investigation in view of the findings on dumping set out above.
(b) Volume, value and market share of imports from the People's Republic of China
(71) Dumped imports, by volume, originating in the People's Republic of China increased from around 12 000 tonnes in 1993 to 75 400 tonnes in 1996, an increase of 526 %. During the same period, the value of these imports increased from around ECU 5,6 million to ECU 33,5 million - an increase of 502 %.
In terms of market shares based on total consumption, the market penetration of the dumped Chinese imports in volume rose almost six-fold from 1993 to 1996, from 2,4 % in 1993 to 14 % in 1996 - an increase of 488 %.
(c) Prices of dumped imports
(72) As mentioned above, for the determination of price undercutting with regard to the People's Republic of China, the data analysed referred to the investigation period. For this purpose, comparison was made between the weighted average sales prices of the exporting country concerned and the weighted average sales prices of the Community industry producing FeSiMn.
In the provisional Regulation the determination of price undercutting was made at end-user level. Following observations from the cooperating importers and producers/exporters, the calculation concerning undercutting was reviewed, since it was established that the majority of Chinese imports transactions were made with traders in the Community. Taking into account the fact that a significant part of the Community industry's sales was at the same level of trade, it was these transactions which were used for price comparison.
(73) On that basis, and by applying the methodology already used at the provisional measures stage, the comparison showed a weighted average price undercutting margin concerning the People's Republic of China, expressed as a percentage of the sales price, of 6,5 %. This margin is significant considering the price suppression suffered over several years by the Community industry (see recital 54 of the provisional Regulation).
4. Situation of the Community industry
(74) In order to fully assess the evolution of various injury indicators, the following should be taken into consideration as far as the period from 1994 onwards is concerned:
- the Community industry was confronted with a growing steel demand which had to be met in terms of production,
- the anti-dumping measures presently in force in respect of Ukraine, Russia, Brazil and South Africa are, depending on the producer/exporter concerned, in the form of price undertakings or variable duties based on minimum prices. The particular impact of these type of measures should be borne in mind when analysing certain injury factors for the time period after 1994.
(a) Production, capacity and capacity utilisation
(75) Overall Community production of FeSiMn rose from around 189 600 tonnes in 1993 to 249 100 tonnes in 1996, representing an increase of 31 %. During the period under investigation, the production capacity of the Community industry was stable. On the basis of an estimate of the capacity normally attributed by the Community producers to the production of FeSiMn, installed capacity remained unchanged between 1993 and 1996. Therefore the capacity utilisation rate rose from 48 to 64 %, which is in line with the increase in production. Nevertheless, even with this increase the rate of capacity utilisation remains at a very low level.
(b) Stocks
(76) Stocks significantly increased from around 29 400 tonnes in 1993 to 55 300 tonnes in 1996, an increase of 88 % (see Recital 46 of the provisional Regulation).
(c) Sales
(77) The volume of sales realised by the Community industry in the Community market increased from around 164 500 tonnes in 1993 to 199 300 tonnes in 1996, an increase of 21 %.
Sales in value by the Community industry rose from around ECU 70,5 million in 1993 to ECU 97,4 million in 1996, an increase of 38 %.
(78) The increase in sales volume and value has to be seen in the light of the fact that consumption and sales prices have increased. The Community industry has, therefore, derived some advantage from this positive market situation. Profitability, however, still remains in a negative situation (see recital 55 of the provisional Regulation and recital 81 of this Regulation).
(d) Market share
(79) The market share by volume increased from 32,5 % in 1992 to 37 % in 1996, an increase of 14 %. This increase occurred in the period between 1995 and 1996, namely after the imposition of measures against imports originating in Russia, Ukraine, Brazil and South Africa. It has, however, to be noted that this increase has not allowed the Community industry to regain the position it had before injurious dumping from the four countries.
(80) An analysis of market share by value was also conducted. The patterns observed were similar to that of the market share by volume in that the Community industry gained market share, from 32,6 % to 36,1 %, an increase of 11 %. It should be borne in mind that between 1995 and 1996 the market share of the Community industry, by value, decreased by 2 %.
(e) Average sales price and price evolution
(81) The average sales price of FeSiMn sold by the Community industry between 1993 and 1994, the year of the imposition of the anti-dumping measures against imports originating in Russia, Ukraine, Brazil and South Africa, increased by 12 %. Between 1994 and 1995, the prices rose by a further 2 % and remained at the same level between 1995 and 1996.
The investigation has shown that the downward pressure on prices exerted by the dumped imports has prevented the Community industry from aligning its sales prices to its relative costs. Despite an increase of 14 % over the period under consideration, these prices were therefore significantly suppressed.
(f) Profitability
(82) The weighted average profitability of the Community industry, expressed as a percentage of sales, showed a loss of 27 % in 1993, which became a loss of 9 % in 1994. The relative improvement in the financial situation of the Community industry continued into 1995, when losses amounted to 3 %. The profitability of the Community industry deteriorated again in 1996 when losses increased (to - 7 %), despite higher sales prices and increased volume.
(g) Employment
(83) Between 1993 and 1996, employment in the Community industry decreased by 11 %.
5. Final conclusion on injury
(84) As already stated in recital 57 of the provisional Regulation, the situation of the Community industry improved between 1993 to 1995. However, this positive development has to be seen in conjunction with the effect of the measures imposed on imports from Brazil, South Africa, Russia and Ukraine.
(85) As far as the situation of the Community industry is concerned, sales, production and prices increased, additional market share was gained and profitability recovered from very severe losses (- 27 %) in 1993 to (- 3 %) in 1995. From 1995 to 1996, however, the situation of the Community industry deteriorated again (profitability - 7 %).
(86) In view of the above findings, it is concluded for the purpose of the definitive measures that the Community industry has suffered material injury within the meaning of Articles 3 and 11 of the Basic Regulation.
F. CAUSATION
1. Effect of Chinese imports
(87) Although consumption in the Community increased by 7 % between 1993 and 1996, the rising level of imports from the People's Republic of China, meant that its total market share increased from 2,4 % in 1993 to 14 % in 1996, i.e. by 11,6 percentage points, with a peak of 21,5 % in 1995.
In contrast, the Community industry increased its market share from 32,5 % in 1992, to 37 % in 1996, i.e. by 4,5 percentage points. This increase occurred between 1995 and 1996, that is after the imposition of measures against imports originating in Russia, Ukraine, Brazil and South Africa and did, in any event, not reflect the level the Community industry had held before injurious dumping started (see recital 50 of the provisional Regulation).
(88) In addition, significant price undercutting was found for the People's Republic of China, while prices of Ukrainian imports reflected exactly the undertaking prices. It should be recalled that the Commission, at recital 75 of the provisional Regulation, reached the preliminary determination that imports originating in the People's Republic of China had caused material injury.
(89) In this regard, Chinese producers/exporters claimed that Chinese imports had not caused material injury to the Community industry. They also argued that in 1993, Chinese import prices were above the prices of Brazil, Russia, South Africa and Ukraine. Furthermore, they argued that, in an effort to gain market share in the Community market, they had to decrease their prices in order to follow the other four exporting countries. In their view, Chinese imports did not dictate the price evolution in the Community market.
The Commission re-examined its findings and established that the Chinese dumped imports increased between 1993 and 1994 by 260 %, following the initiation of the initial investigation concerning Brazil, Russia, South Africa and Ukraine. In 1994, due to the uncertainty of the outcome of the anti-dumping investigation, it seems that Chinese exporters took advantage of the fact that some users had started to look for new, cheap sources of FeSiMn.
It was established that already in 1994, Chinese import prices were below the average prices of FeSiMn originating in South Africa and Brazil. It should be recalled that the initial provisional Regulation was adopted in December 1994 and that the effects of those measures were expected to produce results in 1995. In 1996 Chinese import prices were below the prices of the four countries and caused the Community industry's sales prices to remain depressed.
(90) The expected recovery of the Community industry was thus heavily hampered by the combination of a slight increase in volume and the low-dumped prices of Chinese imports in 1994, and a significant increase in volume of these imports in 1995 and 1996. The market share of Chinese imports increased from 2,4 % 1993, to 7,9 % in 1994 and 21,5 % in 1995. In 1996 Chinese imports lost 7 % of their market share for the reasons explained at recital 72 of the provisional Regulation.
For the reasons mentioned above, these arguments have to be rejected.
(91) Therefore, it is concluded that imports from China had a negative impact on the situation of the Community industry, which must be considered as material.
2. Effect of other factors
Norway
(92) Chinese producers/exporters also argued that the injury caused to the Community industry resulted from imports of FeSiMn of Norwegian origin and not from imports from the People's Republic of China.
It should be noted in this context that, with regard to imports of FeSiMn from Norway, its market share decreased from 34,4 % in 1993 to 29,1 % in 1996 and that the average import prices on the Community market for FeSiMn of Norwegian origin (according to Eurostat), in the calendar years 1993-1996, were always higher than the Chinese prices, the Community industry and all other exporting countries (see Recitals 69 and 70 of the provisional Regulation).
In these circumstances, it is considered that imports from Norway were unlikely to have been responsible for the injury suffered by the Community industry, and, accordingly, these arguments and claims have to be rejected.
3. Conclusion
(93) As no other arguments concerning causation of the injury sustained by the Community industry were submitted after the imposition of the provisional anti-dumping measures and in the light of the above considerations, it is hereby concluded that, even if other factors might have contributed to the injury suffered by the Community industry, the dumped imports of FeSiMn originating in the People's Republic of China have, taken in isolation, caused material injury to the Community industry. This conclusion in particular also takes into account the analysis of the impact of the imports originating in the countries covered by the review investigations as set out in recital 68 of the provisional Regulation.
G. LIKELIHOOD OF RECURRENCE OF DUMPING AND INJURY (WITH REGARD TO THE COUNTRIES SUBJECT TO THE INTERIM REVIEW)
1. Preliminary remark
(94) As a preliminary remark, it should be pointed out that the definitive measures imposed previously by Regulation (EC) No 2413/95 should normally have eliminated the effects of injurious dumping to the Community industry. With regard to imports originating in Ukraine, irrespective of whether or not injury resulting from these imports has actually been established, a reasoned forecast must also be made as to what would happen if the measures currently in force against this country were to be removed or varied. The same applies with regard to imports from Brazil, South Africa and Russia for which no dumping has been found.
2. Brazil
(95) Analysis of the data provided showed that the two cooperating exporters:
- during the investigation period had very high capacity utilisation levels for FeSiMn production (and, therefore, limited excess capacity),
- had increased their domestic sales volumes (by 11 % between 1995 and the investigation period),
- had significantly increased their export volumes to markets other than the Community (an increase of over 40 % was observed between 1995 and the investigation period).
(96) On the basis of the above, it is clear from the findings in the present investigation that, following the imposition of anti-dumping measures by the Community after the original investigation, both Brazilian companies have established themselves on non-Community markets where their product commands higher prices than those prevailing for FeSiMn in the Community. It was also found that the selling prices of such non-Community exports were higher than the prevailing unit cost of production for these producers during the investigation period.
EuroAlliages questioned, however, the amount of spare capacity available and argued that the producers would switch from producing silicon metal to FeSiMn in the absence of measures. It should be recalled that the assessment made by the Commission was based on actual data verified at the premises of the companies, in respect of production of FeSiMn. Although it is always theoretically possible that a company will shift production from one product to another, no evidence was submitted and no indications were found in this particular case that Brazilian producers are likely to abandon their silicon-metal customers in order to increase their Community market share of the product under consideration, especially when account is taken of the prices achieved in other markets for FeSiMn. The argument by EuroAlliages could not, therefore, be accepted.
(97) Account was also taken of the fact that anti-dumping duties of 64,93 % had been imposed by the United States of America in December 1994 on imports of FeSiMn from the two cooperating Brazilian companies. Following a review of these measures, the US authorities increased the dumping duties to 80,54 % in January 1997. In view of these high duty rates, it was also deemed necessary to consider whether any deflection to the Community of FeSiMn previously exported to the USA would occur if the present measures imposed by the Community were to be removed or varied.
(98) In this regard, it should be noted that the US measures were initially imposed during the same month as the Community imposed provisional measures, namely December 1994. Given that the dumping duty rate imposed by the USA was almost double that imposed by the Community, it might have been expected that a certain amount of FeSiMn formerly sold to the USA would have been diverted to the Community already at this stage. The investigation has however shown that this did not happen.
(99) Instead, the investigation showed that following the imposition of measures in the Community, the cooperating companies made no exports at all to the Community. Moreover, they made no export sales to the USA in 1994 and 1996, and only a minor amount in 1995. In view of the high capacity utilization rate and the increased and profitable sales in Brazil and various third countries, it is not unreasonable to conclude that the anti-dumping duties imposed by the USA against the two cooperating producers do not pose a significant threat to the Community in terms of risk of deflection of trade.
(100) Accordingly, it has been concluded that there is no likelihood of recurrence of injurious dumping within the meaning of Article 11(3) of the Basic Regulation by the two cooperating Brazilian companies if the measures imposed by the Community in the original investigation were to be removed.
(101) As concerns the amount of capacity available in the non-cooperating Brazilian company or companies, EuroAlliages submitted that significant quantities of FeSiMn would be exported to the Community, in the event of removal of the measures, by these companies.
(102) It should be recalled that only a small quantity of FeSiMn was exported to the Community, by the non-cooperating Brazilian producers, at non-dumped price levels to the Community during the investigation period (and which accounted for 0,4 % of total consumption in the Community).
Accordingly, in these particular circumstances and, given the behaviour of these companies, it is concluded that there is little likelihood of recurrence of injurious dumping if the residual anti-dumping measures currently in force against Brazil were also to be removed.
3. Russia
(103) In order to evaluate whether injurious dumping would be likely to recur if the measure currently in force against Russia were to be removed, reference must be made to the pattern of trade between Russia and the Community in the investigation period and the period leading up to it.
In this regard, it should be recalled that only 25 tonnes of Russian FeSiMn was imported into the Community in the investigation period, which meant that its share of the Community market was insignificant.
(104) On the basis of these data and in the absence of any other information concerning possible economic trends which would indicate the contrary, it is concluded that there is no likelihood of recurrence of injurious dumping by exports of Russian origin if the measure currently in force were to be removed in the meaning of Article 11 (3) of the Basic Regulation.
4. South Africa
(105) It should first be recalled that both South African producers were found not to be dumping during the investigation period. An analysis of each company's pattern of production and trade has been made, together with an overall assessment of whether South African FeSiMn would be likely to enter the Community again in significant quantities at dumped and injurious price levels.
(106) It should be noted that, traditionally, around 80 % of the total South African production of FeSiMn is exported. As far as domestic sales are concerned, the analysis showed that the sales volumes of FeSiMn of both producers declined by 18 % between 1993 and the investigation period. However, during the investigation period, domestic sales volumes showed a recovery. It was also apparent from the data presented that between1993 and the investigation period that the volume of the two companies' exports of FeSiMn to the Community declined progressively each year to such a low level that their market share became insignificant (i.e. from 3 % in 1993 to 0,4 % in the investigation period).
(107) At the same time, an increase of 11,3 % in the volume of South African FeSiMn exports to other (non-Community) markets occurred between 1993 and the investigation period. Accordingly, it is concluded that the declining volumes of FeSiMn previously sold on the South African domestic market and to the Community have been replaced by increased sales to other markets. As concerns selling prices, it was established that both companies' average sales prices on all markets increased overall between 1993 and the investigation period. Whilst the average sales prices showed a modest overall improvement on the South African domestic market, more significant price increases were observed for sales to the Community and other export markets. In some cases, the average price increase was over 50 % between 1993 and the investigation period. With regard to the investigation period only, it was also noted that the companies exported to non-Community markets at average price levels which were both profitable and higher than the sales price achieved for their FeSiMn exports to the Community.
(108) It was also found that the companies' capacity utilisation in the investigation period would leave only a relatively limited amount of spare capacity available for production of (potential) additional FeSiMn for sales to the Community.
In this regard, on the basis of a trade publication, EuroAlliages questioned the finding that the amount of spare capacity available to the two South African producers was relatively limited. It should, however, be noted that the capacity data provided was verified by the Commission and that the assessment made thereon was based on actual data for the investigation period.
(109) Taking into account all the abovementioned factors, it is considered unlikely that significant quantities of FeSiMn will be exported to the Community by these two South African companies at dumped and injurious price levels should the measures be removed. It is therefore concluded that there is no likelihood of recurrence of the injurious dumping by the two sole South African exporters if the measures imposed in the original investigation by the Community were to be removed.
5. Ukraine
(110) At the outset, it should be recalled that FeSiMn imports into the Community from Ukraine during the investigation period accounted for approximately 4 % of total consumption in the Community, a not insignificant market share. In addition, Ukrainian imports were made at dumped, although not injurious price levels, during the period when the anti-dumping measures were in force.
(111) Examination of the replies of the two cooperating Ukrainian companies to the Commission's questionnaire shows that together they have an annual production capacity of over 1 300 000 tonnes for FeSiMn and, at present production levels, an enormous spare capacity for FeSiMn production. Indeed, the data provided show that whilst the Ukrainian installed capacities remained relatively stable between 1993 and the investigation period, actual production declined from over 700 000 tonnes in 1993 to around 557 000 tonnes during the investigation period. Overall capacity utilisation in the Ukrairie is therefore at a very low level and, in the investigation period, stood at around 42 %.
(112) As concerns sales volumes, examination of the data provided by the two exporters shows that their domestic sales volumes declined by over 37 % between 1993 and the investigation period. Export sales volumes to the Community fell by nearly 60 % over the same period and sales to non-Community markets decreased by just over 17 %. The overall decline in sales on all markets (domestic and export) was approximately 23 %.
(113) Given this situation, there is an apparent need for the Ukrainian producers to bring their capacity utilisation back to former levels by considerably increasing their production and, consequently, their sales volumes. Given the slump in demand on their domestic market in recent years it would appear that the main avenue open to them is to further develop their export sales. Whilst it is possible that the Ukrainian exporters might increase their exports to other, non-Community markets (as was found to be the case with the Brazilian and South African producers), it is considered more likely that they would try to regain lost market share in the Community if there were no longer any anti-dumping measures in force against them. This conclusion is corroborated by both the geographic proximity of the Ukraine to the Community market and by the fact that the Community has been a traditional customer for Ukrainian FeSiMn.
(114) In view of all the above factors, it is concluded that there is a strong likelihood that injurious dumping would recur, if the measures currently in force were to be removed.
H. COMMUNITY INTEREST
1. Introduction
(115) As the new anti-dumping investigation and the review investigation both concern the same market, namely the Community market for FeSiMn, the examination of the Community interest issue was made jointly for both investigations. The purpose of this analysis was to determine the possible impact of measures and the consequences of not taking measures for all parties involved in both proceedings. Furthermore, it should be noted that, given the timing of the review investigation, any actual impact of the anti-dumping measures applicable since 1995 to imports originating in Brazil, South Africa, Russia and Ukraine could be established in the review investigation conditional upon cooperation from interested parties.
(116) It should be recalled in this respect that recitals 76 et seq. of the provisional Regulation contained an analysis of the various interests of all the different parties, including those of the Community industry, importers/traders and of the downstream user industries. On the basis of the information available at the time of the provisional Regulation, the Commission concluded that there was no compelling reason not to remedy the trade distorting effects of injurious dumping. In particular, it was concluded that any possible impact on the user industry could only be minimal.
2. Interest of the Community industry
(117) After the publication of the provisional Regulation no comments have been received from any interested parties which invalidate the conclusions reached therein.
3. Impact on users
(118) As cited in recital 81 of the provisional Regulation, the main downstream user industry of the product under consideration is the steel industry. Subsequent to the provisional Regulation, comments were received from two user associations and one user stating that the imposition of measures against the People's Republic of China would cause a significant increase in the cost of production of steel products. However, since these submissions were not substantiated, it was not possible to make a further, detailed analysis of the effects on users of taking, or not taking measures.
(119) The findings set out in the provisional Regulation, which established that for each 10 % dumping duty imposed, users' cost of production would increase by a limited amount of 0,1 % are confirmed for the purposes of the definitive measures.
(120) It was also argued, that the competitiveness of the Community stainless steel industry on the world market could be endangered by the imposition of definitive anti-dumping measures on FeSiMn. The Commission examined this allegation and arrived to the conclusion that the FeSiMn needed for export purposes can enter the Community without any duty under the inward processing regime. One user is in fact using this regime, importing FeSiMn from South Africa.
(121) One user claimed that it is against the Community interest to impose definitively anti-dumping duties on Chinese imports of FeSiMn due to the fact that the Community industry cannot supply the Community market with sufficient quantities.
As far as the competitive environment of the Community market is concerned, user industries and other economic operators have always enjoyed the presence of a wide range of sources of supply, supplementing the Community industry. Even after the imposition of definitive anti-dumping measures concerning imports of FeSiMn originating in China, third country sources of supply will continue to be available to Community users. In addition imports originating in China are not excluded from the Community market. The anti-dumping measures imposed would merely remove market distortions resulting from injurious dumping and would allow Community producers to compete at a fair level with these imports.
(122) On this basis, the Council confirms the conclusion that, overall, and in the absence of any substantiated submission by users, any impact on users would be negligible.
4. Conclusion
(123) In the light of the above, the preliminary determination reached at recital 85 of the provisional Regulation, that it is in the Community interest to adopt anti-dumping measures, is confirmed.
I. DEFINITIVE MEASURES
1. Injury elimination level
(124) For the purpose of establishing a level of duty which would be adequate to remove the injury to the Community industry, it is first necessary to establish a price level for the Community industry which enables it to recover its costs and achieve a reasonable profit (hereinafter referred to as the 'injury elimination level`).
The determination of the injury elimination level was re-examined with regard to the provisional determination and it was found that, in addition to the weighted average cost of production of the Community industry, a profit rate of 5 % on turnover was considered to be reasonable for the purposes of the definitive determination, particularly in the light of the limited need for new investments, the comparative simplicity of the product and the reduced levels of research and development costs.
The injury elimination level, duly adjusted to take account of the differences in distribution channels, was then compared to the weighted-average export prices for FeSiMn from each of the exporting countries concerned on a cif Community frontier basis, duties paid.
(125) The result of the comparison expressed as a percentage of the export prices on a free-at-Community-frontier basis shows the following injury margins:
(a) Ukraine
The investigation has confirmed that, in view of the anti-dumping measures presently applicable, Ukrainian export prices are at a non-injurious level.
(b) People's Republic of China
The injury margin level thus established is 14,2 %.
(126) Having received no further comments in this respect, the above determination of the injury elimination level is confirmed by the Council.
2. Definitive duty
(a) Ukraine
(127) In view of the determination of the injury elimination level set out in recital 124, the minimum price laid down in the undertakings previously offered by the two cooperating Ukrainian exporters should remain unchanged and continue to be considered as operative. However, these undertakings only applied to FeSiMn produced, exported and invoiced directly by the two companies to the first unrelated customer in the Community. Exports to the Community of Ukrainian origin FeSiMn by another means would therefore be subject to the residual duty currently in force.
(128) As concerns this residual duty, in view of the non-cooperation (see recital 44 et seq.), the measure has to be maintained, but converted into a specific duty. It is considered that this form of measure will help market stability. On this basis, the residual measure for Ukraine will be a specific duty of ECU 150 per tonne of product.
(b) People's Republic of China
(129) Given that following the revision of the injury elimination level the injury margin is still lower than the revised dumping margin established (see recitals 64 and 127 of this Regulation), definitive anti-dumping duties should be imposed on the basis of the injury margin. As far as the form of the definitive duty is concerned, it is considered that the structure of a State-controlled economy gives the Chinese exporters considerable room for manoeuvre to decrease their export prices. Therefore, for the same reason as given above with regard to Ukraine, and also in order to diminish the risk of absorption of the duty by the Chinese exporters, a specific duty (namely a fixed amount per tonne) is considered to be more appropriate in this case than an ad valorem duty or a variable duty.
The amount of such a duty has been calculated on the basis of the injury margin mentioned above and is ECU 58,3 per tonne of product.
3. Undertakings
(130) The Ukrainian exporters were informed of the essential facts and considerations on the basis of which it was intended to recommend the continuation of definitive anti-dumping measures in respect of imports originating in Ukraine. As already found in Commission Decision 95/418/EC (9), it was also considered in the framework of the review investigation that the terms of the undertaking applicable to Ukrainian exports, in particular the price level would still be appropriate pursuant to Article 8(1) of the Basic Regulation, as these undertakings would continue to eliminate the injurious effects of dumping. In view of the licensing system set up by the Ukrainian authorities, it is also considered that such undertakings can be monitored effectively.
(131) Accordingly, the Commission invited the two producer/exporters concerned to confirm whether they still wished to be bound by the terms of the existing undertakings. In this respect, both companies did indeed confirm that they wished to continue with their undertakings. Consequently, these undertakings should remain in force.
(132) At a late stage in the proceeding, a Hong Kong based company (Glory Profit) also enquired about the possibility of offering an undertaking. In this respect, it is considered that this company is not eligible to offer an undertaking since it is a trading company. The company was advised accordingly of this decision. In addition, offers of undertakings made by the Chinese producers related to Glory Profit could also not be accepted since they did not cooperate with the investigation.
J. CONCLUSION CONCERNING DEFINITIVE MEASURES
(133) The above factors clearly demonstrate that definitive measures, both for the People's Republic of China and Ukraine, are warranted. For the reasons given above, these measures, with the exception of the existing undertakings, should be in the form of a specific duty.
(134) As concerns Brazil, Russia and South Africa, the investigation has shown that measures are no longer necessary and that the proceeding should be terminated in respect of these countries. Nevertheless, in order to avoid any potential circumvention, the Commission will follow closely the development of the statistics relating to imports into the Community of FeSiMn originating in the countries concerned.
K. COLLECTION OF PROVISIONAL DUTY WITH REGARD TO THE PEOPLE'S REPUBLIC OF CHINA
(135) The Council considers it appropriate, in view of the magnitude of the dumping found for the exporting producers and in the light of the seriousness of the injury caused to the Community industry, to definitively collect the provisional anti-dumping duty imposed on the product imported from the People's Republic of China at a rate of ECU 58,3 per tonne of product, which is based on the injury margin established. Any amounts secured by way of the provisional anti-dumping measures which exceed this rate should be released,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty of ECU 58,3 per tonne of product is hereby imposed on imports of ferro-silico-manganese currently falling within CN code 7202 30 00 originating in the People's Republic of China.
2. The amounts secured by way of provisional anti-dumping duties imposed pursuant to Regulation (EC) No 1778/97 on imports of the product under consideration originating in the People's Republic of China shall definitively be collected at a rate of ECU 58,3 per tonne of product. Any amounts secured by way of the provisional anti-dumping measure which exceed this rate should be released.
Article 2
Regulation (EC) No 2413/95, is hereby amended as follows:
Article 1 shall be replaced by the following:
'Article 1
A definitive anti-dumping duty of ECU 150 per tonne of product is imposed on imports of ferro-silico-manganese currently falling within CN Code 7202 30 00 originating in Ukraine (TARIC additional code 8848).
This duty shall not apply to imports of the product as defined in this Article, produced and exported to the Community by the following companies: (Ukraine - TARIC additional code 8847):
- Nikopol Ferro Alloy Plant,
- Zaporozhye Ferro Alloy Plant.`
Article 3
The proceeding in respect of imports of the product under consideration originating in Brazil, South Africa and Russia is hereby terminated.
Article 4
Unless otherwise specified, the provisions in force concerning customs duties shall apply to the said duties.
Article 5
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, 23 February 1998.
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COMMISSION REGULATION (EC) No 1159/2008
of 20 November 2008
fixing representative prices in the poultrymeat and egg sectors and for egg albumin, and amending Regulation (EC) No 1484/95
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (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 143 thereof,
Having regard to Regulation (EEC) No 2783/75 of the Council of 29 October 1975 on the common system of trade for ovalbumin and lactalbumin, and in particular Article 3(4) thereof,
Whereas:
(1)
Commission Regulation (EC) No 1484/95 (2) lays down detailed rules for implementing the system of additional import duties and fixes representative prices for poultrymeat and egg products and for egg albumin.
(2)
Regular monitoring of the data used to determine representative prices for poultrymeat and egg products and for egg albumin shows that the representative import prices for certain products should be amended to take account of variations in price according to origin. The representative prices should therefore be published.
(3)
In view of the situation on the market, this amendment should be applied as soon as possible.
(4)
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
Annex I to Regulation (EC) No 1484/95 is 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, 20 November 2008.
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