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COMMISSION REGULATION (EEC) No 2282/86
of 22 July 1986
fixing the weighting coefficients to be used in calculating the Community market price for pig carcases and repealing Regulation (EEC) No 3430/85
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 1475/86 (2), and in particular Article 4 (6) thereof,
Whereas the Community market price for pig carcases, as referred to in Article 4 (2) of Regulation (EEC) No 2759/75, must be established by weighting the prices recorded in each Member State by coefficients expressing the relative size of the pig population of each Member State; whereas these coefficients should be determined on the basis of the number of pigs counted at the beginning of December each year in accordance with Council Directive 76/630/EEC of 20 July 1976 concerning surveys of pig production to be made by the Member States (3), as last amended by Directive 86/83/EEC (4);
Whereas, in view of the results of the census of December 1985 the weighting coefficients fixed by Commission Regulation (EEC) No 3430/85 (5) should be adjusted;
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
The weighting coefficients referred to in Article 4 (2) of Regulation (EEC) No 2759/75 shall be as specified in the Annex to this Regulation.
Article 2
Regulation (EEC) No 3430/85 is hereby repealed.
Article 3
This Regulation shall enter into force on 1 August 1986.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 July 1986.
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Commission Regulation (EC) No 582/2002
of 4 April 2002
adapting the total quantities referred to in Article 3 of Council Regulation (EEC) No 3950/92 establishing an additional levy in the milk and milk products sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3950/92 of 28 December 1992 establishing an additional levy in the milk and milk products sector(1), as last amended by Commission Regulation (EC) No 603/2001(2), and in particular Article 3(2) and Article 4(2) thereof,
Whereas:
(1) Article 3(2) of Regulation (EEC) No 3950/92 lays down that the guaranteed total quantities for Finland may be increased to compensate "SLOM" producers, up to a maximum of 200000 tonnes. In accordance with Article 6 of Commission Regulation (EC) No 671/95(3), as amended by Regulation (EC) No 1390/95(4), Finland has notified the quantities concerned for the 2001/02 marketing year.
(2) Article 4(2) of Regulation (EEC) No 3950/92 lays down that the individual reference quantities are increased or established at the duly justified request of producers to take account of changes affecting their deliveries and/or direct sales and that the increase or establishment of such a reference quantity is subject to a corresponding reduction or cancellation of the other reference quantity the producer owns.
(3) Such adjustments may not lead to an increase, for the Member State concerned, in the sum of the deliveries and direct sales referred to in Article 3 of Regulation (EEC) No 3950/92. Where the individual reference quantities undergo a definitive change, the quantities referred to in Article 3 are adjusted accordingly.
(4) In accordance with the third indent of Article 8 of Commission Regulation (EEC) No 536/93(5), as last amended by Regulation (EC) No 1255/98(6), Belgium, Denmark, Germany, Greece, Spain, France, Ireland, Luxembourg, the Netherlands, Austria, Portugal, Finland and the United Kingdom have notified quantities which have undergone a definitive change in accordance with the second subparagraph of Article 4(2) of Regulation (EEC) No 3950/92.
(5) The total quantities applicable for the period from 1 April 2001 to 31 March 2002 laid down in point (b) of the Annex to Regulation (EEC) No 3950/92 and consequently those applicable for subsequent periods laid down in points (c) to (f) of that same Annex should therefore be adjusted.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EEC) No 3950/92 is replaced by the Annex hereto.
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 April 2002.
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COMMISSION DECISION
of 2 April 2007
amending Decision 2003/248/EC as regards the extension of the duration of temporary derogations from certain provisions of Council Directive 2000/29/EC in respect of plants of strawberry (Fragaria L.), intended for planting, other than seeds, originating in Argentina
(notified under document number C(2007) 1428)
(2007/212/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (1), and in particular Article 15(1) thereof,
Whereas:
(1)
Under Directive 2000/29/EC, plants of strawberry (Fragaria L.), intended for planting, other than seeds, originating in non-European countries, other than Mediterranean countries, Australia, New Zealand, Canada and the continental states of the United States of America, may not in principle be introduced into the Community. However, that Directive permits derogations from that rule, provided that it is established that there is no risk of spreading harmful organisms.
(2)
Commission Decision 2003/248/EC (2) authorises Member States to provide for temporary derogations from certain provisions of Directive 2000/29/EC in order to permit the import of plants of strawberry (Fragaria L.), intended for planting, other than seeds, originating in Argentina.
(3)
The circumstances justifying this derogation are still valid and there is no new information giving cause for revision of the specific conditions.
(4)
The Member States should therefore be authorised to permit the introduction into their territory of such plants subject to specific conditions for a further limited period.
(5)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plant Health,
HAS ADOPTED THIS DECISION:
Article 1
In Article 1, second paragraph, of Decision 2003/248/EC the following points (e) to (h) are added:
‘(e)
1 June 2007 to 30 September 2007;
(f)
1 June 2008 to 30 September 2008;
(g)
1 June 2009 to 30 September 2009;
(h)
1 June 2010 to 30 September 2010.’
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 2 April 2007.
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COUNCIL DECISION
of 26 September 2007
appointing a Danish member of the European Economic and Social Committee
(2007/621/EC, Euratom)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 259 thereof,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 167 thereof,
Having regard to Council Decision 2006/703/EC, Euratom of 16 October 2006 appointing the Danish members of the European Economic and Social Committee (1) for the period from 21 September 2006 to 20 September 2010,
Having regard to the nomination submitted by the Danish Government,
Having received the opinion of the Commission,
Whereas a Danish member’s seat on the aforementioned Committee has fallen vacant following the resignation of Ms Randi IVERSEN,
HAS DECIDED AS FOLLOWS:
Article 1
Ms Mette KINDBERG is hereby appointed a member of the European Economic and Social Committee in place of Ms Randi IVERSEN for the remainder of her term of office, which ends on 20 September 2010.
Article 2
This Decision shall take effect on the date of its adoption.
Done at Brussels, 26 September 2007.
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*****
COMMISSION DECISION
of 21 December 1981
establishing that the apparatus described as 'Baird-Fluorocomp-TLS system, model TLS-1000' may be imported free of Common Customs Tariff duties
(82/66/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1798/75 of 10 July 1975 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials (1), as amended by Regulation (EEC) No 1027/79 (2),
Having regard to Commission Regulation (EEC) No 2784/79 of 12 December 1979 laying down provisions for the implementation of Regulation (EEC) No 1798/75 (3), and in particular Article 7 thereof,
Whereas, by letter dated 27 May 1981, the United Kingdom has requested the Commission to invoke the procedure provided for in Article 7 of Regulation (EEC) No 2784/79 in order to determine whether or not the apparatus described as 'Baird-Fluorocomp-TLS system, model TLS-1000', to be used for the application of luminescence technique in the identification of crude oil and related materials, should be considered to be a scientific apparatus and, where the reply is in the affirmative, whether apparatus of equivalent scientific value is currently being manufactured in the Community;
Whereas, in accordance with the provisions of Article 7 (5) of Regulation (EEC) No 2784/79, a group of experts composed of representatives of all the Member States, met on 18 November 1981 within the framework of the Committee on Duty-Free Arrangements to examine the matter;
Whereas this examination showed that the apparatus in question is a spectrofluorometer; whereas its objective technical characteristics such as the analytical output, the high sensitivity and the use to which it is put make it specially suited to scientific research; whereas, moreover, apparatus of the same kind are principally used for scientific activities; whereas it must therefore be considered to be a scientific apparatus;
Whereas, on the basis of information received from Member States, apparatus of equivalent scientific value capable of use for the same purpose is not currently manufactured in the Community; whereas, therefore, duty-free admission of this apparatus is justified,
HAS ADOPTED THIS DECISION:
Article 1
The apparatus described as 'Baird-Fluorocomp-TLS system, model TLS 1000', which is the subject of an application by the United Kingdom of 27 May 1981, may be imported free of Common Customs Tariff duties.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 21 December 1981.
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COMMISSION REGULATION (EC) No 502/1999 of 12 February 1999 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1), as last amended by European Parliament and Council Regulation (EC) No 82/97 (2) and in particular Article 249 thereof,
(1) Whereas Commission Regulation (EEC) No 2454/93 (3), as last amended by Regulation (EC) No 46/1999 (4) lays down provisions for the implementation of Regulation (EEC) No 2913/92;
(2) Whereas difficulties during recent years throughout the transit procedures have caused, and continue to cause, significant losses for the budgets of the Member States and Community's own resources and represent a permanent threat to European trade and economic operators;
(3) Whereas modernisation of transit procedures is therefore considered to be necessary and their computerisation represents a significant element in modernisation;
(4) Whereas a Council resolution with regard to the computerisation of customs transit was adopted by the Internal Market Council, at its meeting on 23 November 1995 (5); the need for computerisation was recognised in Decision No 210/97/EC of the European Parliament and of the Council of 19 December 1996 adopting an action programme for customs in the Community (Customs 2000) (6);
(5) Whereas computerisation was further recommended by the European Parliament's Temporary Committee of Inquiry into the Community Transit System (7) and by the Commission in its action plan for transit in Europe (8);
(6) Whereas the introduction of new computerised procedures based on the use of modern information technology and electronic data interchange (EDI) requires the adaptation of legal provisions to answer the procedural, technical, security-linked and legal certainty needs;
(7) Whereas the implementation of technical, procedural and physical security measures is of vital importance to achieve and maintain a reliable and secure operation of computerised transit system;
(8) Whereas the European Parliament and Council have adopted on 24 October 1995 Directive 95/46/EC (9) on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(9) Whereas, the implementation of a new computerised transit system in different functional phases requires a legal framework to be established according to this development;
(10) Whereas the measures provided for by this Regulation are in accordance with the opinion of the Customs Code Committee,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2454/93 is hereby amended as follows:
(1) In Article 341 the following paragraph 1a is inserted:
'1a. Under the conditions and in the manner which they shall determine, and with due regard to the principles laid down by customs rules, the customs authorities may allow the declaration or some of the particulars thereof to be lodged using discs or magnetic tapes, or by the exchanging of information by similar means, where appropriate in coded form.`
(2) Article 345(2) is replaced by the following:
'2. The loading list shall be produced in the number of copies required by the customs authorities.`
(3) Article 346(2) is replaced by the following:
'2. The T1 declaration shall be produced at the office of departure in the number of copies required by the customs authorities.`
(4) Article 350(1) is replaced by the following:
'1. The goods shall be transported together with the T1 document issued by the customs office of departure. Where authorised, the document may be printed from the principal's computer system.`
(5) The following Articles 350a to 350d are inserted:
'Article 350a
1. Where the transit declaration is processed at the office of departure by computer systems the T1 document shall be replaced by the transit accompanying document as specified in Article 350c, first paragraph.
2. In the case referred to in paragraph 1 the office of departure shall retain the declaration and communicate the release by providing the transit accompanying document to the principal. In this case Article 249 and Article 348(2) shall not apply.
Article 350b
1. Where provisions in this Title refer to any copies, declarations or documents meaning a T1 document accompanying the consignment in Community transit, these provisions shall apply mutatis mutandis to the transit accompanying document.
2. Where a reference is made to more than one copy of the document the customs authorities shall provide the additional copies of the transit accompanying document, where appropriate.
Article 350c
1. The transit accompanying document shall conform to the specimen and particulars in Annex 45a.
2. The transit accompanying document shall not be modified nor shall any addition or deletion be made thereto unless otherwise specified in this regulation.
Article 350d
1. Where appropriate the transit accompanying document shall be supplemented by a list of items the specimen and particulars of which are in Annex 45b or by a loading list.
2. A loading list or a list of items referred to in a transit accompanying document shall form an integral part thereof and shall not be separated from that document.`
(6) Article 373(2) is replaced by the following:
'2. The guarantee referred to in paragraph 1 may be a cash deposit lodged with the office of departure. In that case, it shall be returned when the external Community transit procedure is discharged at the office of departure.`
(7) Article 374 is replaced by the following:
'Article 374
The guarantor shall be released from his obligations as provided for in Article 199(1) of the Code and in addition he shall be released from his obligations upon expiry of a period of 12 months from the date of registration of the T1 declaration where he has not been advised by the customs authorities of the Member State of departure of the non-discharge of the external Community transit procedure.
Where, within the period provided for in the first subparagraph, the guarantor has been advised by the customs authorities of the non-discharge of the external Community transit procedure, he shall, in addition, be notified that he is or may be required to pay the amounts for which he is liable in respect of the Community transit operation in question. This notification shall reach the guarantor not later than three years after the date of registration of the T1 declaration. Where no such notification has been made before the expiry of that time limit, the guarantor shall likewise be released from his obligations.`
(8) The following text is added after Article 388:
'CHAPTER 6a
Additional provisions applicable where transit data is exchanged using information technology and computer networks between customs authorities
Section 1
Scope
Article 388a
1. Without prejudice to special circumstances and to the provisions of this Title concerning the Community transit procedure, which, where appropriate, shall apply mutatis mutandis, the exchange of information between customs authorities described in this Chapter shall take place using information technology and computer networks.
2. The provisions of this Chapter shall apply only to the external and internal Community transit procedure.
Article 388b
The provisions of this Chapter shall not apply to:
(a) transport of goods by rail in accordance with Article 413 to 441;
(b) transport of goods by air in accordance with Article 444;
(c) transport of goods by sea, where simplified procedures are applied in accordance with Article 448; and
(d) transport of goods by pipeline.
Section 2
Security
Article 388c
1. In addition to the security requirements presented in Article 4a(2) the customs authorities shall establish and maintain adequate security arrangements for the effective, reliable and secure operation of the complete transit system.
2. To ensure the abovementioned level of security each input, modification and deletion of data shall be recorded indicating the purpose of such processing, its time and the person initiating the processing. In addition to that the original data or any data which was subject to such processing shall be maintained for a period of at least three calendar years from the end of the year to which such data refers, or for a longer period if so defined elsewhere.
3. The customs authorities shall monitor the security regularly.
4. The customs authorities concerned shall inform each other of all suspected breaches of security.
Section 3
Transit declaration
Article 338d
1. By way of derogation from Article 222(1) a transit declaration made using a data-processing technique, as defined in Article 4a(1)(a), shall conform to the structure and particulars in Annexes 37a and 37b.
2. Without prejudice to paragraph 1 where the transit declaration is made in accordance with Article 388f, Articles 222 to 224 shall apply.
Article 388e
Under the conditions and in the manner they shall determine, and with due regard to the principles laid down by customs rules, the customs authorities may allow loading lists to be used as the descriptive part of the transit declaration made using a data-processing technique.
Section 4
Authorised consignors
Article 388f
1. By way of derogation from Article 398, the authorised consignor shall lodge a transit declaration with the office of departure before the intended release of the goods.
2. The authorisation may be granted only to a person who, in addition to the conditions laid down in Article 399, lodges his transit declarations and communicates with customs authorities using a data-processing technique.
Article 388g
By way of derogation from Article 400(b) the authorisation shall specify in particular the period within which the authorised consignor shall lodge a declaration in order that the customs authorities may carry out necessary controls before the intended release of the goods.
Section 5
Operation of the procedure
Article 388h
The office of departure shall, at the latest on release of the goods, notify the transit movement to the declared office of destination, using the message specified in Annexes 37a and 37b.
Article 388i
1. By way of derogation from Article 356(2) the office of destination shall retain the transit accompanying document and shall communicate the arrival to the office of departure immediately using the message specified in Annexes 37a and 37b, and, without delay, shall forward the control results to the office of departure as soon as these are available using the message specified in the same Annexes.
2. The communication of the arrival to the office departure may not be used as proof of the regularity of a transit operation.
Article 388j
Where transit data is exchanged using information technology and networks between the office of departure and the office of destination, the control of the goods shall be carried out using the communication received from the office of departure as a basis for such control.`
(9) Annex 37a, as shown in Annex I to this Regulation, is inserted.
(10) Annex 37b, as shown in Annex II to this Regulation, is inserted.
(1) Annex 38a, as shown in Annex III to this Regulation, is inserted.
(2) Annex 45a, as shown in Annex IV to this Regulation, is inserted.
(13) Annex 45b, as shown in Annex V to this Regulation, is inserted.
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
It shall apply from 31 March 1999. However the provisions of Article 350a, first paragraph Commission Regulation (EEC) No 2454/93, shall be applied at office of departure at the latest when the computerised transit system is implemented at this office.
The authorisations granted in accordance with Article 398 that are valid at the time of entry into force of this Regulation, shall comply with the requirements of Articles 388f and 388g at the latest by 31 March 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 February 1999.
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COMMISSION REGULATION (EC) No 840/2009
of 16 September 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 17 September 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 September 2009.
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COMMISSION REGULATION (EEC) No 673/93 of 24 March 1993 applying a transitional measure for maize and sorghum at the end of marketing year 1992/93
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organization of the market in cereals (1), and in particular Article 26 thereof,
Whereas the intervention period for maize and sorghum ends on 30 April in the south and 31 May in the north; whereas this situation, in view of uncertainties as regards outlets, aggravated by the reduction of intervention prices following the implementation of the reform in the cereals sector, is likely to encourage operators to offer substantial quantities of maize and sorghum for intervention at the end of April in the south and at the end of May in the north, although certain market outlets may be found after that date; whereas this situation may be remedied by allowing buying-in of those cereals in May and June 1993;
Whereas for buying-in of cereals conditions are laid down in Commission Regulation (EEC) No 689/92 of 19 March 1992 fixing the procedure and conditions for the taking-over of cereals by intervention agencies (2), as last amended by Regulation (EEC) No 2486/92 (3);
Whereas the Management Committee for Cereals has not delivered an opinion within the time set by its Chairman,
HAS ADOPTED THIS REGULATION:
Article 1
1. In accordance with Article 4 of Regulation (EEC) No 1766/92, the intervention agencies shall buy in quantities of maize and sorghum offered to them between 1 May and 30 June 1993.
2. The price to be paid shall be the intervention price provided for in Article 7 (3) of Council Regulation (EEC) No 2727/75 (4), as fixed for the 1992/93 marketing year, plus seven monthly increases, expressed in national currency using the representative rate applicable on 31 May 1993.
3. Subject to paragraph 2, buying-in shall be carried out in accordance with the provisions of Regulation (EEC) No 689/92. Notwithstanding the third subparagraph of Article 3 (3) of Regulation (EEC) No 689/92, the final delivery of maize or sorghum offered for intervention under this Regulation must be made by 31 August 1993 at the latest.
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, 24 March 1993.
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COMMISSION DECISION
of 25 August 2005
declaring a concentration compatible with the common market and the functioning of the EEA Agreement
(Case COMP/M.3687 - Johnson & Johnson/Guidant)
(notified under document number C(2005) 3230)
(Only the English text is authentic)
(Text with EEA relevance)
(2006/430/EC)
On 25 August 2005 the Commission adopted a Decision in a merger case pursuant to Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (1), and in particular Article 8(1) of that Regulation. A non-confidential version of the full Decision can be found in the authentic language of the case and in the working languages of the Commission on the website of the Directorate-General for Competition, at the following address: http://europa.eu.int/comm/competition/index_en.html
I. INTRODUCTION
(1)
On 15 March 2005, the Commission received a notification of a proposed concentration pursuant to Article 4 of Regulation (EC) No 139/2004 (Merger Regulation) by which the undertaking Johnson & Johnson (J & J, USA) acquires within the meaning of Article 3(1)(b) of that Regulation control of the whole of the undertaking Guidant Corporation (Guidant, USA) by way of purchase of shares.
A. The Parties
(2)
J & J is a company incorporated in the USA. In 2003, it had 111 000 employees worldwide and generated a turnover of around EUR 37 billion. Its activities span over three main businesses: consumer goods (18 % of turnover), pharmaceuticals (47 %) and medical devices and diagnostics (MD & D, 36 % of turnover).
(3)
Guidant is a company incorporated in the United States of America (USA) that is active in the design and development of cardiovascular medical products. In 2003, it had around 12 000 employees worldwide and a turnover of around EUR 3,3 billion. Guidant’s presence covers four main areas within the fast-growing cardiovascular medical products business: cardiac rhythm management, interventional cardiology, endovascular devices and cardiac surgery.
B. The operation
(4)
The concentration is an acquisition of sole control by J & J over Guidant, within the meaning of Article 3(1)(b) of the EC Merger Regulation.
II. THE RELEVANT MARKETS
(5)
The market investigation confirmed that the areas mostly affected by the merger are the following: 1. interventional cardiology devices; 2. endovascular devices; 3. cardiac surgery devices; and 4. cardiac rhythm management devices. In the latter, there are no overlaps, as J & J is currently not active in the business.
A. The relevant product markets
1. Interventional cardiology devices
(6)
Interventional cardiology devices are designed to treat, through minimally invasive procedures, coronary artery diseases. In this area the main device is the stent, a small expandable wire tube that is placed in an occluded coronary artery to remove the plaque and support the walls of the vessel, thus enabling the blood to flow properly.
(7)
Bare metal stents (BMS) and drug eluting stents (DES) are two separate product markets for the following reasons: no significant price correlation, no supply side substitutability, very significant differences in clinical outcomes, and different reimbursement systems. Moreover, despite the fact that BMS and DES share the same stent structure and delivery system, a number of components are specifically important to a coronary DES (the drug, drug dosage and rate of release, and polymer coatings).
(8)
Concerning the accessories coronary guiding catheters, coronary steerable guidewires, coronary PTCA balloon catheters, the Commission’s market inquiry has established that each of these products constitutes a separate relevant product market. Most interventions will require a specific set of accessories, with different dimensions and shape.
2. Endovascular devices
(9)
Endovascular devices are used for the minimally invasive treatment of peripheral vascular (or endovascular) diseases such as the build up of plaque (i.e. vessel calcification) in peripheral vessels (peripheral arterial disease) and aneurysm (the enlargement of a weak area of an artery).
(10)
Similar to interventional cardiology stents, endovascular stents are small expandable tubes designed to treat a narrowing or blockage in a peripheral artery.
(11)
The parties submitted, and the Commission’s market inquiry confirmed, that two separate markets should be identified for endovascular stents: a market for balloon expandable stents (BX) (usually made of stainless steel and which come mounted on a PTA balloon catheter), and a market for self-expandable stents (SX), which use a different deployment technology. The Commission inquiry established a clear trend towards more specialisation in the endovascular area, both for BX stents (e.g. segments for renal (BX) stents and for iliac-femoral (BX) stents) and for SX stents (e.g. segments for femoral (SX) stents, iliac (SX) stents and carotid stents).
(12)
As far as the accessories are concerned, endovascular guiding catheters, steerable guidewires and PTA balloon catheters perform a similar function to the corresponding products in interventional cardiology. Similarly to the coronary area, a relevant market should be defined for each of these accessories, due to the high degree of supply side substitutability and the fact that all major manufacturers offer, within each accessory, a very broad range of models in terms of dimensions and shapes.
3. Cardiac surgery devices
(13)
Coronary artery bypass graft surgery (CABG) is used to treat coronary artery disease; the blocked artery is ‘bypassed’ by sewing (grafting) another blood vessel to the aorta at one end and to the coronary artery beyond the damaged area the other end. After the operation, blood flows through the new grafted vessel to the heart muscle. The vessel used for the bypass is removed (harvested) from the leg (saphenous vein graft), chest or arm.
(14)
The following markets are affected in the cardiac surgery area: (i) beating-heart CABG products (stabilisation systems and accessories as blowers/misters); and (ii) endoscopic vessel harvesting (EVH) devices.
B. The relevant geographic markets
(15)
The market investigation confirmed that relevant geographic markets are all national because of significant differences between reimbursement schemes and procurement processes; price variations between countries; need to establish a local sales office; the parties’ and competitors’ market share variations across Member States.
III. COMPETITIVE ASSESSMENT
A. Interventional cardiology
(16)
Interventional cardiology is a relatively recent, innovation driven business which is characterised by significant barriers to entry, i.e. R & D financing, intellectual property rights for product development, long time-to-market for new products, clinical trials, and product range.
(17)
In the area of interventional cardiology there are two leagues of players: large global companies competing on a worldwide level (J & J, Guidant, Medtronic, Boston Scientific and Abbott) and ‘local players’ (Sorin, Biotronik and others).
1. Drug-eluting stents
(18)
In the market for DES, the concentration would result in the removal of a potential competitor given that Guidant is present only in BMS and not yet in DES, while J & J is one of the only two players already active in this segment, the other being Boston Scientific.
(19)
Despite the fact that there is an indication that Guidant would likely have been one of the key players in the market for DES, acting as a major competitive constraint vis-à-vis the two current competitors J & J and Boston Scientific, the evidence collected in the investigation also proved that the other new entrants will be likely to exert sufficient competitive constraints on the market for DES, compensating for the loss of competition resulting from J & J’s acquisition of Guidant (Medtronic, Abbott, Conor/Biotronik and Sorin).
(20)
The Commission, therefore, concluded that the notified concentration does not raise any serious doubts as to its compatibility with the common market with regard to DES and thus, the concentration will not significantly impede effective competition in the common market for DES.
2. Steerable guidewires
(21)
In the interventional cardiology market for steerable guidewires virtually all national markets are strongly affected by the concentration (above 40 % and with an increment of at least 5 %), and in many of these, including the largest countries of the EU, the parties’ combined market shares are above (65 to 75 %) and even (75 to 85 %).
3. Conclusion
(22)
The Commission, therefore, concluded that the notified concentration raises serious doubts as to its compatibility with the common market by enabling the merging parties to strengthen Guidant’s uncontested leadership, in so far as it removes one of the only two main competitors in this market. Further, the remaining firms in the market may even be expected to benefit from the reduction in competition which will result from the merger; the increase in concentration will enable them to attain higher prices than would otherwise have been the case.
B. Endovascular devices
(23)
Both J & J and Guidant are leading suppliers in the area of endovascular devices in the EEA. Although there is a fair number of competitors in the endovascular markets (Abbott, Bard, Boston Scientific, B.Braun, Cook, Edwards Lifesciences, ev3, Invatec, Medtronic, Sorin and Terumo), not all players have the same strength or are present in all product or geographic markets. Moreover, the market investigation has highlighted that the disappearance of Guidant as a competitor will eliminate the closest substitute to J & J stents.
(24)
In the endovascular market for balloon expandable stents, at EEA level, the combined market share of the merging parties amounts to (60 to 70 %), (J & J, (30 to 40 %), Guidant, (25 to 35 %)). Those market shares have been relatively stable for the past four years.
(25)
When looking at the relevant geographic markets, i.e. each Member State, for the purpose of the competitive assessment, there are nine countries more substantially affected, namely: Austria, Belgium, France, Germany, Italy, Luxembourg, Netherlands, Portugal and Spain.
(26)
Having regard to the fact that the merger combines the strongest and second strongest player, it will create a dominant position in virtually all the markets considered and will lead to a significant impediment to effective competition.
(27)
In the endovascular market for Carotid stents in the EEA, the member States most substantially affected are: Austria, Belgium, Finland, France, Germany, Italy, the Netherlands, Portugal and Spain.
(28)
There are three main players in the carotid stent market: J & J, Guidant and Boston Scientific. Together they account for 83 to 96 % of the market. The concentration will either reinforce the leadership of J & J or Guidant (in Austria, Finland, the Netherlands, Portugal and Spain) or combine the second and third player to create a new market leader (Belgium, Germany and Italy).
(29)
In the above national markets, given the degree of concentration, barriers to entry, customer loyalty, closeness of substitution and, as a result of the elimination of a major competitive constraint, the operation will give rise to unilateral adverse effects in those markets and therefore impede effective competition in the common market.
(30)
In the endovascular devices market for non-carotid stents, the Member States most substantially affected are: Austria, Belgium, Germany and the Netherlands. In most of these markets, J & J is market leader and Guidant is one of the leading players and is considered by the majority of the customers as the closest substitute to J & J.
(31)
With regard to non-carotid SX stents in the above national markets, the concentration will give rise to non-coordinated adverse effects in those national markets and therefore impede effective competition in the common market and the EEA as a result of the creation or strengthening of a dominant position.
(32)
The Commission, therefore, concluded that the notified concentration raises serious doubts as to its compatibility with the common market with regard to endovascular stents market. The concentration will create a dominant position in balloon expandable stents market and will give rise to unilateral adverse effects in carotid and non-carotid stents markets and therefore will impede effective competition in the common market.
C. Cardiac surgery: endoscopic vessel harvesting systems
(33)
The EEA sales of EVH systems are significantly lower than in the United States but show a growing trend. In Europe, traditional vessel harvesting is used in the large majority (98 %) of procedures. J & J and Guidant are virtually the only two suppliers of EVH systems, with market shares estimated at 90 to 95 % by the parties and 100 % by market players across Europe.
(34)
The Commission, therefore, concluded that the notified concentration raises serious doubts as to its compatibility with the common market with regard to the EVH systems and will result in creation of a virtual monopoly across Europe.
IV. COMMITMENTS OFFERED BY THE PARTIES
(35)
In order to address the aforementioned competition concerns in the steerable guidewires, the endovascular and the cardiac surgery markets, the Parties submitted the undertakings described below:
(a)
in the steerable guidewires business, the parties propose to divest the assets associated predominantly with the supply, marketing and sale of J & J steerable guidewires business in the EEA. In essence, the divestiture would consist of the transfer of the inventory and the customer list, the assignment of rights for use of trademarks, the licence of IP rights, the transfer of specifications relating to the design of J & J guidewires. The divestment has a field of use limited to Europe and does not include manufacturing, assembly, sterilisation (these operations are currently outsourced by J & J to a third party), distribution and warehousing;
(b)
in the endovascular area, the parties have proposed to divest the entire operations (products, logistics, inventory, customer list, sales force, brand names, and intellectual property) of Guidant’s endovascular solutions business in the EEA. The divestment does not include manufacturing, finance, administration, R & D, regulatory, quality and clinical research teams, which are based in the USA and operate on a worldwide basis. The parties offer to the purchaser an interim OEM supply agreement followed by either the continuation of such agreement or the full assistance to replicate the USA production facility in Europe. The divestment also includes embolic protection devices and endovascular accessories on top of the endovascular stents on which the Commission’s analysis was focused;
(c)
for the cardiac surgery area, the parties have proposed to divest alternatively either:
(a)
J & J’s endoscopic vessel harvesting products (EVH) and endoscopic radial artery harvesting (ERA kits); or
(b)
GDT worldwide assets and personnel of cardiac surgery business division; or
(c)
Guidant’s endoscopic vessel harvesting products, namely procedural kits for EVH (EVH kits).
V. ASSESSMENT OF THE COMMITMENTS SUBMITTED
(36)
As confirmed by the results of the market test conducted by the Commission, these undertakings can be considered sufficient to properly remedy the competition concerns in the steerable guidewires, the endovascular and the cardiac surgery markets, as outlined above.
(37)
The Commission, therefore, reached the conclusion that, on the basis of the commitments submitted by the Parties, the notified concentration will not significantly impede effective competition, in the common market or in a substantial part of it. Consequently, the Decision suggests declaring the concentration compatible with the common market and the EEA Agreement, in accordance with Articles 2(2) and 8(2) of the Merger Regulation and Article 57 of the EEA Agreement.
VI. CONCLUSION
(38)
For the reasons set out above, the Commission concluded that the proposed concentration does not significantly impede effective competition in the common market or a substantial part of it. The concentration was therefore declared compatible with the common market and the EEA Agreement in a decision on 25 August 2005, in accordance with Article 8(1) of the Merger Regulation and Article 57 of the EEA Agreement.
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Council Regulation (EC) No 444/2001
of 26 February 2001
relating to the conclusion of the Protocol defining, for the period 3 December 1999 to 2 December 2002, the fishing opportunities and the financial contribution provided for by the Agreement between the European Community and the Government of Mauritius on fishing in the waters of Mauritius
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 37, in conjunction with Article 300(2) and the first subparagraph of Article 300(3) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Whereas:
(1) In accordance with the Agreement between the European Community and the Government of Mauritius on fishing in Mauritian waters(3), the Contracting Parties held negotiations with a view to determining amendments or additions to be made to the Agreement at the end of the period of application of the Protocol.
(2) As a result of these negotiations, a new Protocol defining, for the period 3 December 1999 to 2 December 2002, the fishing opportunities and the financial contribution provided for by the said Agreement, was initialled on 3 December 1999.
(3) It is in the Community's interest to approve this Protocol.
(4) The method for allocating the fishing opportunities among the Member States should be defined on the basis of the traditional allocation of fishing opportunities under the Fisheries Agreement,
HAS ADOPTED THIS REGULATION:
Article 1
The Protocol defining, for the period 3 December 1999 to 2 December 2002, the fishing opportunities and the financial contribution provided for by the Agreement between the European Community and the Government of Mauritius on fishing in the waters of Mauritius is hereby approved on behalf of the Community.
The text of the Protocol is attached to this Regulation(4).
Article 2
The fishing opportunities fixed in the Protocol shall be allocated among the Member States as follows:
- tuna seiners: France 20, Spain 20, Italy 2, United Kingdom 1,
- surface long-liners: Spain 19, France 13, Portugal 8,
- vessels fishing by line: France 25 grt/month on an annual average.
If licence applications from these Member States do not cover all the fishing opportunities fixed by the Protocol, the Commission may take into consideration licence application from any other Member State.
Article 3
The President of the Council is hereby authorised to designate the persons empowered to sign the Protocol in order to bind the Community(5).
Article 4
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, 26 February 2001.
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COMMISSION REGULATION (EEC) No 3105/91 of 23 October 1991 re-establishing the levying of customs duties on products of category 19 (order No 40.0190) originating in Malaysia, to which the preferential tariff arrangement set out in Council Regulation (EEC) No 3832/90 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3832/90 of 20 December 1990 applying generalized tariff preferences for 1991 in respect of textile products originating in developing countries (1), and in particular Article 12 thereof,
Whereas Article 10 of Regulation (EEC) No 3832/90 provides that preferential tariff treatment shall be accorded, for each category of products subjected in Annexes I and II thereto to individual ceilings, within the limits of the quantities specified in column 8 of Annex I and column 7 of Annex II, in respect of certain or each of the countries or territories of origin referred to in column 5 of the same Annexes;
Whereas Article 11 of the abovementioned Regulation provides that the levying of customs duties may be re-established at any time in respect of imports of the products in question once the relevant individual ceilings have been reached at Community level;
Whereas, in respect of products of category 19 (order No 40.0190), originating in Malaysia, the relevant ceiling amounts to 1 746 000 pieces;
Whereas on 16 July 1991 imports of the products in question into the Community, originating in Malaysia, a country covered by preferential tariff arrangements, reached and were charged against that ceiling;
Whereas it is appropriate to re-establish the levying of customs duties for the products in question with regard to Malaysia,
HAS ADOPTED THIS REGULATION:
Article 1
As from 28 October 1991 the levying of customs duties, suspended pursuant to Regulation (EEC) No 3832/90, shall be re-established in respect of the following products, imported into the Community and originating in Malaysia:
Order No Category
(unit) CN code Description 40,0190 19
(1 000 pieces) 6213 20 00
6213 90 00 Handkerchiefs other than knitted or crocheted
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 October 1991.
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*****
COUNCIL REGULATION (EEC) No 1204/82
of 18 May 1982
amending Regulation (EEC) No 2511/69 laying down special measures for improving the production and marketing of Community citrus fruit
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),
Having regard to the opinion of the Economic and Social Committee (2),
Whereas little progress has been made on the measures providing for the conversion of citrus production to better varieties; whereas all efforts should therefore be concentrated on the conversion of orange, mandarin and lemon plantations to varieties better suited to consumer requirements;
Whereas, in order to strengthen the possibilities of Community producers to prepare themselves to meet increased competition following enlargement, particularly from a quality point of view, steps should be taken to extend the field of application of the medium-term measures to lemons;
Whereas in the Member States where a substantial number of varieties of citrus fruit are not acceptable to consumers, this situation has affected development efforts relating to the total production of those States; whereas it is necessary therefore to provide for structural improvement measures to assist production in the Member States concerned;
Whereas conversion, marketing and processing measures should be encouraged only in Member States in which there is a very great need for conversion to different varieties;
Whereas, however, Regulation (EEC) No 2226/79 (3) authorized France to undertake measures concerning the replanting of citrus fruit plantations and the improvement of processing and marketing conditions in the citrus fruit sector, in so far as those measures are undertaken by 31 December 1983 and completed by 31 December 1986 at the latest; whereas it is therefore necessary to authorize the application of these measures under the conditions of this Regulation and within the aforesaid time limits;
Whereas, in addition, having regard to the special situation of the citrus fruit sector and particularly that of clementines in Corsica, these measures should be accompanied by structural improvement measures for the sector in question and by measures for the conversion of clementines to other clementine varieties; whereas, therefore, provisional measures relating thereto should be authorized under the abovementioned conditions and within the aforesaid time limits;
Whereas, in view of the changes in purchasing power since the adoption of Regulation (EEC) No 2511/69 (4), the amount of the additional aid should be increased;
Whereas reconversion also necessitates collective operations, and the execution of such operations requires that the incentives provided for conversion may be granted to all participants;
Whereas the granting of financial compensation is justified only in Member States in which a conversion plan has been established; whereas the Community markets other than those of the producer Member States are more receptive to Community lemons and clementines than to oranges and mandarins; whereas financial compensation could therefore be withdrawn more rapidly for lemons and clementines,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2511/69 is hereby amended as follows:
(1) Article 1 shall be replaced by the following:
'Article 1
1. Aid shall be granted in accordance with the provisions of Article 5 for measures on which a start has been made up to 31 December 1988, within the framework of the plan referred to in Article 2, which are designed to:
(a) convert existing plantations of orange, mandarin or lemon trees to other varieties of oranges, mandarins, or lemons or other citrus fruit of the satsuma or clementine type with a view to adapting such plantations to suit consumer demand;
(b) establish, improve and enlarge:
- handling centres for citrus fruit where sorting, sizing, disinfection and packaging are carried out and which have storage space available, as an annex, should the need arise,
- storage centres for citrus fruit,
- processing installations for citrus fruit with storage space available, as an annex, should the need arise;
(c) restructure the citrus fruit sector on farms with a view to greater competitiveness, by:
- new plantations without conversion, over areas well suited to citrus fruit production and with varieties meeting consumer requirements, provided that such plantations are intended to replace existing plantations and do not increase the areas planted with citrus fruit,
- and improvement measures involving, in particular, preparation of the soil, irrigation from an existing collective network, field drainage and non-collective farm paths, provided that such measures are accompanied by practical steps to control plants and diseases;
(d) produce reproductive material to the extent necessary to carry out the plan.
The estimated cost to the European Agricultural Guidance and Guarantee Fund (EAGGF) of the measures provided for in subparagraph (b) shall not exceed 15 % of the total estimated cost to the EAGGF of the medium-term measures provided for under this Regulation.
2. Before 31 December 1988 the Council shall, if necessary, decide, on a proposal from the Commission, to extend the period provided for in the first subparagraph of paragraph 1.
3. Community farmers producing oranges, mandarins and lemons who undertake to replant within the meaning of paragraph 1 (a) shall qualify, at their own request and under the conditions laid down in Article 4, for additional aid granted in order that any deficit entailed by such replanting may be taken into account.
This aid shall be granted in accordance with the provisions of Article 5.'
(2) The first subparagraph of Article 2 shall be replaced by the following:
'The measures provided for in Article 1 (1) shall apply only in Member States where:
- for oranges, at least 20 % of total production consists of fruit of the varieties "biondo comune" and "sanguigno comune",
- for small-fruited citrus, at least 50 % of total production consists of mandarins,
- for lemons, at least 50 % of total production consists of fruit of varieties other than "Eureka" and "Verna",
and in so far as they concern the measures referred to under point (c) of the first subparagraph of Article 1 (1), where the Member States furnish proof simultaneously of major structural deficiencies.
However, in so far as they are undertaken by 31 December 1983 and completed by 31 December 1986 at the latest, the measures provided for in Article 1 (1) (a) and (b) may equally apply in Corsica.
The Member States concerned shall, by 30 April 1983, draw up a plan of the measures they consider most suitable for carrying out the work referred to in Article 1 or amend the existing plans. This plan must specify in particular the production areas concerned, the varieties to be changed, the location of installations technically equipped for storage, packing and processing and the parts of capital expenditure incurred by the measures referred to under point (b) of the first subparagraph of Article 1 (1) which are not financed by the EAGGF and are borne by the Member State concerned and the beneficiary of the measures respectively. Work involved in drawing up the plan shall be done in conjunction with the Commission, which may forward any recommendation to the Member State concerned.'
(3) Article 4 shall be replaced by the following:
'Article 4
1. The aid referred to in Article 1 (3) shall be paid to farmers who practise agriculture as their main occupation and who grow oranges, mandarins or lemons on condition that:
- the income derived from their holding before conversion does not exceed the income derived from five hectares of orange, mandarin and lemon trees,
- at least 40 % of the area used for growing orange, mandarin or lemon trees is converted at one time,
- an area of at least 20 ares is converted.
In accordance with the procedure provided for in Article 2, the Commission may authorize a Member State to adopt a lower figure than that provided for in the second indent of the first subparagraph in exceptional cases where the need for such a reduction is clearly justified. If a collective conversion measure referred to in paragraph 3 is involved, the aid may also be paid to farmers participating in the measure but not fulfilling the conditions laid down above, provided the total amount of aid per beneficiary does not exceed the amount for four converted hectares.
2. The amount of aid per converted hectare shall apply to a maximum of four hectares and shall be as follows:
- 2 200 ECU per year for the first four years,
- 1 500 ECU for the fifth year,
- 1 000 ECU for the sixth and seventh years, only for growers who replant.
The above amounts shall be increased by 10 % per converted hectare of mandarin and lemon trees.
3. For the purposes of this Regulation, a collective measure shall refer to any citrus fruit conversion measure carried out by farmers under a mandatory agreement concluded between at least 25 farmers having a total of at least 50 hectares of citrus fruit, and which provides for the conversion of at least 20 hectares.
In accordance with the procedure provided for in Article 2, the Commission may authorize a Member State, in exceptional cases, to specify a smaller area to be converted than that provided for in the first subparagraph, in so far as the total number of cases so specified represents no more than 10 % of the total area to be converted in this Member State.
If the collective measure is carried out by a cooperative or a producer group or association set up for purposes other than citrus fruit conversion, the condition mentioned in the first subparagraph which refers to a minimum number of 25 farmers shall not be binding.
The Member States concerned shall, in the plan referred to in Article 2, for each region to which the plan applies within the limits laid down above, fix the conditions to be met by the collective measures.
4. The first instalment shall be paid during the two months following the start of conversion.
The amount of aid may be adjusted from the year following the entry into force of Regulation (EEC) No 1204/82 in the light of developments in the general economic situation by decision of the Council acting by a qualified majority on a proposal from the Commission.'
(4) Article 5 (1) shall be replaced by the following:
'1. The aids specified in Article 1 shall be granted by the Member States. They must cover:
- all expenditure in implementation of the measures specified in the first subparagraph of Article 1 (1) (a), (c) and (d), and of the additional aid provided for in Article 1 (3),
- all expenditure in implementation of the measures specified in the first subparagraph of Article 1 (1) (b), less the proportion of this expenditure to be met by the recipient of the aid.'
(5) Article 6 shall be replaced by the following:
'Article 6
Sellers established in the producer Member States who have drawn up a conversion plan within the meaning of Article 2 shall qualify, subject to the conditions set out below, for financial compensation in respect of oranges, mandarins, clementines and lemons originating in the said Member States and marketed in the other Member States.'
(6) Article 7 shall be replaced by the following:
'Article 7
1. For oranges and mandarins, the amount of financial compensation shall be fixed each year before the beginning of the marketing year, in accordance with the procedure laid down in Article 43 (2) of the Treaty:
(a) up to and including the 1989/90 marketing year, on the basis of the previous amount adjusted for changes in the basic and buying-in prices for the products in question, subject to the condition, however, that the percentage change in the financial compensation compared with the preceding marketing year may not exceed the percentage change in the basic and buying-in prices;
(b) with effect from the 1990/91 marketing year, on the basis of the previous amount reduced, successively, by one-quarter, one-third and one-half.
Financial compensation shall be abolished with effect from the 1993/94 marketing year.
2. For lemons and clementines, the amount of the financial compensation shall be fixed each year before the beginning of the marketing year, in accordance with the procedure laid down in Article 43 (2) of the Treaty:
(a) up to and including the 1982/83 marketing year, on the basis of the previous amount adjusted for changes in the basic and buying-in prices for the products in question, subject to the condition, however, that the percentage change in the financial compensation compared with the preceding marketing year may not exceed the percentage change in the basic and buying-in prices; (b) with the effect from the 1983/84 marketing year, on the basis of the previous amount reduced, successively, by one-quarter, one-third and one-half.
Financial compensation shall be abolished with effect from the 1986/87 marketing year.
3. Financial compensation shall be granted only in respect of products belonging to quality classes Extra and I.'
Article 2
For a transitional period and provided they are begun by 31 December 1983 and completed no later than 31 December 1986, the following measures may also be applied in Corsica:
- conversion of clementine plantations to other varieties of clementines,
- restructuring of the citrus fruit sector.
The measures and conditions for converting and restructuring citrus fruit plantations referred to in Title I of Regulation (EEC) No 2511/69 shall apply to the measures referred to in the preceding subparagraph.
Article 3
The measures referred to in Title I of Regulation (EEC) No 2511/69 and those referred to in Article 2 of this Regulation shall constitute common measures, within the meaning of Article 6 of Regulation (EEC) No 729/70 (1), the estimated cost of which is 288;5 million ECU.
Article 4
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 May 1982.
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COMMISSION DECISION
of 14 October 1999
on the list of programmes for the eradication and monitoring of animal diseases qualifying for a financial contribution from the Community in 2000
(notified under document number C(1999) 3329)
(1999/701/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/EEC(2), and in particular Article 24(5) thereof,
Whereas:
(1) in drawing up the list of programmes for the eradication and monitoring of animal diseases qualifying for a financial contribution from the Community for 2000, and the proposed rate and amount of the contribution for each programme, both the interest of each programme for the Community and the volume of available appropriations must be taken into account;
(2) the Commission has examined each of the programmes submitted by the Member States from both the veterinary and the financial point of view;
(3) the amounts of the contribution shown in the Annex to this Decision are indicative;
(4) the level of the financial participation of the Community shall be determined for each programme in accordance with the budgetary situation;
(5) the programmes on the list set out in this Decision will have to be approved individually at a later date, where appropriate amended or supplemented by additional information received from the Member States concerned;
(6) the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
1. The programmes listed in the Annex hereto shall qualify for a financial contribution from the Community in 2000.
2. For each programme as referred to in paragraph 1, the proposed rate and amount of the Community financial contribution shall be as set out in the Annex.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 14 October 1999.
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COMMISSION REGULATION (EC) No 1269/2008
of 15 December 2008
establishing a prohibition of fishing for saithe in VI; EC waters of Vb; EC and international waters of XII and XIV by vessels flying the flag of Spain
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (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 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, 15 December 2008.
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COMMISSION REGULATION (EC) No 3504/93 of 20 December 1993 amending for the second time Regulation (EC) No 3377/93 adopting exceptional support measures for the market in pigmeat in Belgium
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2759/75 of 29 October 1975 on the common organization of the market in pigmeat (1), as last amended by Regulation (EEC) No 1249/89 (2), and in particular Article 20 thereof,
Whereas because of the outbreak of classical swine fever in one production region in Belgium, exceptional support measures for the market in pigmeat were adopted for that Member State in Commission Regulation (EC) No 3337/93 (3), as amended by Regulation (EC) No 3415/93 (4);
Whereas, for veterinary reasons, restrictions on the free movement of live pigs are still in force; whereas the final date laid down for the buying-in of live pigs and piglets by the Belgian intervention agency pursuant to Regulation (EC) No 3337/93 should therefore be abolished;
Whereas it is necessary to adjust the buying-in price to the present market situation taking into account the increase in market prices from 13 December 1993;
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
Regulation (EC) No 3337/93 is hereby amended as follows:
1. in Article 1 (1), 'until 22 December 1993' is deleted;
2. Article 4 is replaced by the following:
'Article 4
1. The farm-gate buying-in price of live pigs weighing not less than 110 kilograms on average per lot shall be ECU 116 per 100 kilograms slaughtered weight. Where the average weight per lot is less than 110 kilograms but more than 106 kilograms, the buying-in price shall be ECU 99 per 100 kilograms. In both cases, a coefficient of 0,83 is applied on the buying-in price.
2. The farm-gate buying-in price for piglets shall be ECU 30 per head. Where the average weight per lot is less than 25 kilograms but more than 24 kilograms, the buying-in price shall be ECU 25,5 per head.'
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
However, Article 1 point 2 shall apply with effect from 13 December 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 December 1993.
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*****
COMMISSION REGULATION (EEC) No 1102/90
of 26 April 1990
amending the list annexed to Regulation (EEC) No 55/87 establishing the list of vessels exceeding eight metres length overall permitted to use beam trawls within certain areas of the Community
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources (1), as last amended by Regulation (EEC) No 4056/89 (2),
Having regard to Commission Regulation (EEC) No 55/87 of 30 December 1986 establishing the list of vessels exceeding eight metres length overall permitted to use beam trawls within certain areas of the Community (3), as last amended by Regulation (EEC) No 860/90 (4), and in particular Article 3 thereof,
Whereas the German authorities have requested replacement in the list annexed to Regulation (EEC) No 55/87 of six vessels that no longer meet the requirements laid down in Article 1 (2) of that Regulation; whereas the national authorities have provided all the information in support of the request required pursuant to Article 3 of Regulation (EEC) No 55/87; whereas scrutiny of this information shows that the requirements of the Regulation are met; whereas the vessels in question should be replaced in the list,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EEC) No 55/87 is amended as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 April 1990.
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*****
COMMISSION DECISION
of 2 March 1989
on improving the efficiency of agricultural structures in Spain pursuant to Council Regulation (EEC) No 797/85
(Only the Spanish text is authentic)
(89/184/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 797/85 of 12 March 1985 on improving the efficiency of agricultural structures (1), as last amended by Regulation (EEC) No 1137/88 (2), and in particular Article 25 (3) thereof,
Having regard to Commission Regulation (EEC) No 1272/88 of 29 April 1988 laying down detailed rules for applying the set-aside incentive scheme for arable land (3),
Whereas the Spanish Government forwarded the following provisions pursuant to Article 24 (4) of Regulation (EEC) No 797/85:
- Royal Decree No 1435/1988 of 25 November 1988 governing the set-aside incentive scheme for arable land;
- Ministerial Order of 5 December 1988 concerning the rules for the application of the set-aside incentive scheme for arable land;
Whereas, under Article 25 (3) of Regulation (EEC) No 797/85, the Commission has to decide whether the conditions for a financial contribution from the Community are satisfied in the light of the compatibility of the abovementioned provisions with the aforementioned Regulation and bearing in mind the objectives of the latter and the need to ensure that the various measures are properly related;
Whereas vetches for fodder and green manure production are the only species of vicia which are authorized where land set aside is used;
Whereas this Decision does not relate to the Commission's authorization as regards the areas to be exempted from the scheme for the set-aside of arable land;
Whereas the abovementioned provisions satisfy the conditions and the objectives of Title 0l of Regulation (EEC) No 797/85; whereas they are in accordance with Regulation (EEC) No 1272/88;
Whereas, however, in view of the newness of the set-aside scheme, the Commission reserves the right to re-examine the provisions forwarded, particularly as regards the amont of the aid, on the basis of a report on their application to be submitted by Spain pursuant to Article 29 of Regulation (EEC) No 797/85 and to Article 16 (2) of Regulation (EEC) No 1272/88;
Whereas the European Agricultural Guidance and Guarantee Fund (EAGGF) Committee has been consulted on the financial aspects;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Committee for Agricultural Structure and Rural Development,
HAS ADOPTED THIS DECISION:
Article 1
1. The provisions relating to the set-aside of arable land contained in Royal Decree No 1435/1988 of 25 November 1988 (and the Ministerial Order of 5 December 1988) forwarded by the Spanish Government pursuant to Article 24 (4) of Regulation (EEC) No 797/85, satisfy the conditions for a Community financial contribution to the common measure provided for in Title 0l of the said Regulation, subject to the following conditions:
(a) the financial contribution from the Community shall not cover the additional aid in the case of afforestation;
(b) the Annex to Royal Decree No 1435/1988 concerning the areas to be exempted from the scheme for the set-aside of arable land is not the subject of this Decision;
2. Up to 31 December 1989 the Commission reserves the right to revise this Decision with effect from that date.
Article 2
(1) OJ No L 93, 30. 3. 1985, p. 1.
(2) OJ No L 108, 29. 4. 1988, p. 1.
(3) OJ No L 121, 11. 5. 1988, p. 36.
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COMMISSION DECISION
of 12 October 2009
authorising the placing on the market of a lipid extract from Antarctic Krill Euphausia superba as a novel food ingredient under Regulation (EC) No 258/97 of the European Parliament and of the Council
(notified under document C(2009) 7647)
(Only the English text is authentic)
(2009/752/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients (1), and in particular Article 7 thereof,
Whereas:
(1)
On 29 September 2006 the company Neptune Technologies & Bioressources Inc. made a request to the competent authorities of Finland to place a lipid extract from Antarctic Krill Euphausia superba on the market as a novel food ingredient.
(2)
On 29 January 2007 the competent food assessment body of Finland issued its initial assessment report. In that report it came to the conclusion that the use of the lipid extract from Antarctic Krill Euphausia superba as a food ingredient was acceptable.
(3)
The Commission forwarded the initial assessment report to all Member States on 19 February 2007.
(4)
Within the 60-day period laid down in Article 6(4) of Regulation (EC) No 258/97 reasoned objections to the marketing of the product were raised in accordance with that provision.
(5)
Therefore the European Food Safety Authority (EFSA) was consulted on 31 January 2008.
(6)
In the Scientific Opinion of the Panel on dietetic products nutrition and allergies on a request from the European Commission on the safety of lipid extract from Euphausia superba as food ingredient, the panel came to the conclusion that the lipid extract from Antarctic Krill Euphausia superba was safe under the proposed conditions of use.
(7)
On the basis of the initial assessment report, it is established that the lipid extract from Antarctic Krill Euphausia superba complies with the criteria laid down in Article 3(1) of the Regulation.
(8)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Lipid extract from Antarctic Krill Euphausia superba as specified in Annex I, may be placed on the market in the Community as a novel food ingredient for the uses and at the maximum levels as listed in Annex II.
Article 2
The designation ‘lipid extract from the crustacean Antarctic Krill Euphausia superba’ shall be displayed on the labelling of the product as such or in the list of ingredients of foodstuffs containing it.
Article 3
This Decision is addressed to Neptune Technologies & Bioressources Inc., 225 Promenade du Centropolis, Suite 200, Laval, Quebec H7T 0B3, Canada.
Done at Brussels, 12 October 2009.
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*****
COMMISSION REGULATION (EEC) No 1676/88
of 15 June 1988
amending Regulation (EEC) No 2657/87 derogating from the prohibition on the use of equivalent compensation for durum wheat
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1999/85 of 16 July 1985 on inward processing relief arrangements (1),
Having regard to Council Regulation (EEC) No 3677/86 of 24 November 1986 laying down provisions for the implementation of Regulation (EEC) No 1999/85 on inward processing relief arrangements (2), as last amended by Regulation (EEC) No 4151/87 (3), and in particular Annex IV thereto,
Whereas Commission Regulation (EEC) No 2657/87 of 1 September 1987 derogating from the prohibition on the use of equivalent compensation for durum wheat (4), as last amended by Regulation (EEC) No 4151/87, provides for the use of a 'Certificate P 1' which enables holders of an inward processing authorization (equivalent compensation) for durum wheat to provide evidence that the pasta products have been cleared for home use in the United States of America; whereas the said certificate endorsed by the competent customs authorities of the United States of America must be presented to the Community customs office which endorsed it not later than three months after the date on which the export declaration was accepted;
Whereas practical experience has shown that there should be provision for extending this time limit where circumstances so warrant;
Whereas consultations have been held with a group of experts made up of representative from the Member States,
HAS ADOPTED THIS REGULATION:
Article 1
Article 3 (3) of Regulation (EEC) No 2657/87 is hereby replaced by the following:
'3. The original of the 'Certificate P 1', endorsed by the competent customs authorities of the United States of America, shall be presented to the customs office in the Community which endorsed it no later than three months after the date on which the export declaration for the pasta products was accepted. Where circumstances so warrant the customs authority may extend the time limit at the request, duly documented, of the holder of the authorization, provided that the total period does not exceed 12 months. Where exceptional circumstances, duly documented, so warrant, the prolongation may be granted even after expiry of the initial time limit of three months indicated above.'
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, 15 June 1988.
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REGULATION (EEC) No 3254/74 OF THE COUNCIL of 17 December 1974 applying Regulation (EEC) No 1055/72 on notifying the Commission of imports of crude oil and natural gas to petroleum products falling within subheadings 27.10 A, B, C I and C II of the Common Customs Tariff
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 5 and 213 thereof;
Having regard to the proposal from the Commission;
Having regard to the Opinion of the European Parliament;
Having regard to the Opinion of the Economic and Social Committee;
Whereas obtaining an overall picture of the Community supplies of crude oil and natural gas is an essential feature of a Community energy policy;
Whereas Regulation (EEC) No 1055/72 (1) applies only to the notification to the Commission of imports of crude oil and natural gas;
Whereas it is important to supplement the information which the Community has at its disposal ; whereas, to this end, the notification provided for in Regulation (EEC) No 1055/72 should be extended to petroleum products falling within subheading 27.10 A, B, C I and C II of the Common Customs Tariff,
HAS ADOPTED THIS REGULATION:
Article 1
The obligation laid down in Article 1 of Regulation (EEC) No 1055/72 for Member States to notify the Commission of imports of crude oil and natural gas shall be extended to petroleum products falling within subheadings 27.10 A, B, C I and C II of the Common Customs Tariff and shall be fulfilled under the conditions set out in the abovementioned Regulation and in accordance with the procedure laid down in Annex A to this Regulation.
Article 2
As regards the products referred to in Article 1 of this Regulation and in accordance with the procedure laid down in Annex B to this Regulation, the obligation laid down in Article 2 of Regulation (EEC) No 1055/72 shall apply to persons or undertakings having imported or intending to import into the Community a quantity of 100 000 metric tons or more per annum of the products referred to in the subheading of the Common Customs Tariff set out in Article 1 above.
Article 3
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 December 1974.
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COMMISSION DECISION
of 10 July 2009
amending Decision 2002/253/EC as regards case definitions for reporting Influenza A(H1N1) to the Community network
(notified under document number C(2009) 5465)
(Text with EEA relevance)
(2009/540/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Decision No 2119/98/EC of the European Parliament and of the Council of 24 September 1998 setting up a network for the epidemiological surveillance and control of communicable diseases in the Community (1), and in particular Article 3(c) thereof,
Whereas:
(1)
According to Article 2 of Commission Decision 2002/253/EC of 19 March 2002 laying down case definitions for reporting communicable diseases to the Community network under Decision No 2119/98/EC of the European Parliament and of the Council (2), the case definitions laid down in Annex to that Decision should be updated to the extent necessary on the basis of the latest scientific data.
(2)
Commission Decision 2009/363/EC of 30 April 2009 amending Decision 2002/253/EC laying down case definitions for reporting communicable diseases to the Community network under Decision No 2119/98/EC of the European Parliament and of the Council (3) introduced a new case definition in relation to the recent outbreak in North America of a new influenza virus and the recent occurrence of cases in several Member States.
(3)
The World Health Organization has in the meantime officially defined the current disease under the wording ‘Influenza A(H1N1)’. It is therefore necessary to update Decision 2002/253/EC in order to use this denomination instead of the name given to this virus by Decision 2009/363/EC.
(4)
The measures provided for in this Decision are in accordance with the opinion of the Committee set up by Article 7 of Decision No 2119/98/EC,
HAS ADOPTED THIS DECISION:
Article 1
In the Annex to Decision 2002/253/EC, the heading ‘NOVEL INFLUENZA VIRUS A(H1N1) (THE SO-CALLED SWINE INFLUENZA VIRUS A(H1N1) AND MEXICAN INFLUENZA VIRUS) (1)’ is replaced by the heading ‘INFLUENZA A(H1N1)’.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 10 July 2009.
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Commission Regulation (EC) No 742/2003
of 28 April 2003
amending for the 17th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 of 27 May 2002 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan(1), as last amended by Regulation (EC) No 561/2003(2), and in particular Article 7(1), second indent, thereof,
Whereas:
(1) Annex II to Regulation (EC) No 881/2002 lists the competent authorities to whom information and requests concerning the measures imposed by that Regulation should be sent.
(2) The Netherlands, Sweden and the United Kingdom requested that the address details concerning their competent authorities be amended and as a result of personnel changes the address details concerning the Commission have to be amended,
HAS ADOPTED THIS REGULATION:
Article 1
Annex II to Regulation (EC) No 881/2002 is hereby amended 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 Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 April 2003.
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COMMISSION REGULATION (EEC) No 2225/93 of 27 July 1993 amending Regulation (EEC) No 2719/92 on the accompanying administrative document for the movement under duty-suspension arrangements of products subject to excise duty
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (1), as amended by Directive 92/108/EEC (2), and in particular
Articles 15 (5) and 18 (1) thereof,
Having regard to the opinion of the Committee on Excise Duties,
Whereas Article 15 (5) of Directive 92/12/EEC provides that an authorized warehousekeeper of dispatch or his agent may, during the carriage of products, choose an alternative place of delivery without special authorization from the relevant competent authority; whereas this has to be taken into account as regards the form of the accompanying document and its explanatory notes;
Whereas the fact that all Member States now issue excise numbers to their authorized warehousekeepers and their registered traders requires the obligatory indication of the excise number in the accompanying document; whereas, as a consequence, with the exception of non-registered traders, there is no further need to indicate the VAT identification number either for the consignor or for the consignee in the accompanying document;
Whereas there is a need to simplify and to facilitate the procedure as regards those accompanying documents which have been drawn up by an automatic or electronic data-processing system; whereas Member States should be authorized to enable the consignor, under certain conditions, to dispense with a signature on documents;
Whereas Commission Regulation (EEC) No 2719/92 (3) should therefore be amended,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2719/92 is amended as follows:
1. Article 1 is replaced by the following:
'Article 1
The document shown in Annex I shall be used as the administrative document accompanying the movement under duty-suspension arrangements of products subject to excise duty within the meaning of Article 3 (1) of Directive 92/12/EEC. The instructions concerning completion of the document and the procedures for its use are shown on the reverses of copy 1 of this document.'
2. The following sentence is added to Article 2 (2):
'The document shall be marked conspicuously with the following indication:
"Commercial accompanying document for the movement of products subject to excise duty under duty suspension".'
3. The following Article 2a is inserted:
'Article 2a
1. In cases where the accompanying document is drawn up by an electronic or automatic data-processing system, the competent authorities may authorize the consignor not to sign the document but to replace the signature by the special stamp shown in Annex II. Such authorization shall be subject to the condition that the consignor has previously given a written undertaking to those authorities that he will be liable for all risks inherent in intra-Community movements of products subject to excise duty under duty-suspension arrangements involving consignments which travel under cover of an accompanying document bearing such special stamp.
2. Accompanying documents drawn up in accordance with paragraph 1 shall contain in that part of Box 24 which is reserved for the consignor's signature, one of the following indications:
- Dispensa de firma
- Fritaget for underskrift
- Freistellung von der Unterschriftsleistung
- Den apaiteitai ypografi
- Signature waived
- Dispense de signature
- Dispensa dalla firma
- Van ondertekening vrijgesteld
- Dispensa de assinatura.
3. The special stamp referred to in paragraph 1 shall be placed in the upper right corner of Box A of the administrative accompanying document or, plainly visible, in the corresponding Box of a commercial document. The consignor may also be authorized to pre-print the special stamp.'
4. The Annex is replaced by Annexes I and II hereto.
Article 2
Existing stocks of the form which is to be replaced by the new form of Annex I may be used until exhausted.
Article 3
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 July 1993.
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COMMISSION DECISION of 8 October 1993 concerning the grant of assistance from the cohesion financial instrument to the project concerning the Madrid ringroad M 40, (northern distributor road, section 2, Zarzuela to C 607 link) in Spain No CF: 93/11/65/017 (Only the Spanish text is authentic) (93/658/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 792/93 of 30 March 1993 establishing a cohesion financial instrument (1), and in particular Article 8 (6) thereof,
Whereas Article 1 of Regulation (EEC) No 792/93 establishes a cohesion financial instrument to provide Community support for projects in the fields of the environment and trans-European transport infrastructure networks;
Whereas pursuant to Article 9 of Regulation (EEC) No 792/93 certain provisions of Titles VI and VII of Council Regulation (EEC) No 4253/88 of 19 December 1988 concerning the provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (2) are to apply, mutatis mutandis;
Whereas Article 2 of Regulation (EEC) No 792/93 defines the types of measure for which the cohesion financial instrument may provide assistance;
Whereas Article 10 of Regulation (EEC) No 792/93 requires the Member States to ensure that adequate publicity is given to the operations of the financial instrument and that the measures which are described in Annex V to this Decision are undertaken;
Whereas on 27 May 1993 Spain submitted an application for assistance from the cohesion financial instrument for a project concerning the Madrid ringroad M 40, (northern distributor road, section 2, Zarzuela to C 607 link);
Whereas that application concerns a project which is eligible under the terms of Article 2 of Regulation (EEC) No 792/93;
Whereas the application for assistance contains all the information required by Article 8 (4) of the Regulation and satisfies the criteria set out in Article 8 (3) and (5) of the Regulation;
Whereas the project forms part of the master plan for a trans-European network;
Whereas Article 1 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (3), as last amended by Council Regulation (Euratom, ECSC, EEC) No 610/90 (4), states that the legal commitments entered into for measures extending over more than one financial year shall contain a time limit for implementation which must be specified to the recipient in due form when the aid is granted;
Whereas pursuant to Article 9 of Regulation (EEC) No 792/93, the Commission and the Member State will ensure that there is evaluation and systematic monitoring of the project;
Whereas the financial implementation provisions, monitoring and assessment are specified in Annexes III and IV to this Decision; whereas failure to comply with those provisions may result in suspension or reduction of the assistance granted pursuant to
Article 9
(3) of that Regulation (EEC) No 792/93 and the provisions contained in Annex VI;
Whereas all the other conditions laid down, have been complied with,
HAS ADOPTED THIS DECISION:
Article 1
The project for the Madrid ringroad M 40, (northern distributor road, section 2, Zarzuela to C 607 link) situated in Spain as described in Annex I hereto is hereby approved for the period from 1 January 1993 to 31 December 1994.
Article 2
1. The maximum eligible expenditure to be taken as the basis for this Decision shall be ECU 93 322 577.
2. The rate of Community assistance granted to the project shall be fixed at 85 %.
3. The maximum amount of the contribution from the cohesion financial instrument shall be fixed at ECU 79 324 190.
4. The contribution is committed from the 1993 budget.
Article 3
1. Community assistance shall be based on the financial plan for the project set out in Annex II.
2. Commitments and payments of Community assistance granted to the project shall be made in accordance with Article 9 of Regulation (EEC) No 792/93 and as specified in Annex III.
3. The amount of the first advance payment shall be fixed at ECU 20 723 992.
Article 4
1. Community assistance shall cover expenditure on the project for which legally binding arrangements have been made in Spain and for which the requisite finance has been specifically allocated to works to be completed not later than 31 December 1994.
2. Expenditure incurred before 1 January 1993 shall not be eligible for assistance.
3. The closing date for the completion of national payments on the project is fixed not later than 12 months after the date mentioned in subparagraph 1.
Article 5
1. The project shall be carried out in accordance with Community law, and in particular with Articles 7, 30, 52 and 59 of the EEC Treaty, as well as with Community policies, in particular with the Directives coordinating public procurement procedures.
2. This Decision shall not prejudice the right of the Commission to commence infringement proceedings pursuant to Article 169 of the EEC Treaty.
Article 6
Systematic monitoring and assessment of the project take place in accordance with the provisions set out in Annex IV hereto.
Article 7
The Member State concerned shall ensure adequate publicity for the project as specified in Annex V.
Article 8
Each Annex to this Decision shall form an integral part of it.
Article 9
Failure to comply with the provisions of this Decision or its Annexes may entail a reduction or suspension of assistance in accordance with the provisions set out in Annex VI.
Article 10
This Decision is addressed to the Kingdom of Spain.
Done at Brussels, 8 October 1993.
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DIRECTIVE 2007/59/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 23 October 2007
on the certification of train drivers operating locomotives and trains on the railway system in the Community
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 71 thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Economic and Social Committee (1),
Having regard to the Opinion of the Committee of the Regions (2),
Acting in accordance with the procedure laid down in Article 251 of the Treaty, in the light of the joint text approved by the Conciliation Committee on 31 July 2007 (3),
Whereas:
(1)
Directive 2004/49/EC (4) of the European Parliament and of the Council of 29 April 2004 on safety on the Community’s railways requires infrastructure managers and railway undertakings to establish their safety management systems in such a way that the railway system is at least able to achieve the common safety targets and comply with the national safety rules and safety requirements defined in the technical specifications for interoperability (TSIs) and that the relevant parts of the common safety methods are applied. These safety management systems provide, among other things, for staff training programmes and systems which ensure that staff competence is maintained and that duties are performed in the appropriate manner.
(2)
Directive 2004/49/EC provides that, in order to gain access to railway infrastructure, a railway undertaking has to hold a safety certificate.
(3)
Under Council Directive 91/440/EEC of 29 July 1991 on the development of the Community’s railways (5), licensed railway undertakings have had, since 15 March 2003, a right of access to the trans-European freight network for international rail freight services and, from 2007 at the latest, will have a right of access to the entire network for domestic and international freight services. This gradual extension of access rights will inevitably lead to an increase in the movement of train drivers across national borders. The result will be a growing demand for drivers trained and certified for operation in more than one Member State.
(4)
A study carried out by the Commission in 2002 highlighted the fact that the laws of the Member States on the certification conditions for train drivers differ considerably. Community rules for the certification of train drivers should therefore be adopted to overcome these differences while maintaining the present high level of safety of the railway system in the Community.
(5)
Such Community rules should also contribute to the aims of Community policies on the freedom of movement of workers, freedom of establishment and freedom to provide services in the context of the common transport policy, while avoiding any distortion of competition.
(6)
The aim of these common provisions should be above all to make it easier for train drivers to move from one Member State to another, but also to make it easier for them to move from one railway undertaking to another, and generally for licences and harmonised complementary certificates to be recognised by all railway sector stakeholders. To this end, it is essential that the provisions establish minimum requirements which applicants should meet to obtain a licence or harmonised complementary certificate.
(7)
This Directive follows and is largely based on the historic joint Agreement concluded by the European Transport Workers’ Federation (ETF) and the Community of European Railways (CER) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services (6).
(8)
Even if a Member State excludes from the scope of this Directive drivers exclusively operating on certain categories of rail systems, networks and infrastructure, this should not limit in any way the obligation of that Member State to respect the validity of licences throughout the territory of the European Union or of harmonised complementary certificates on the relevant infrastructure.
(9)
The requirements should cover at least the minimum age for driving a train, the applicant’s physical and occupational psychological fitness, professional experience and knowledge of certain matters relating to driving a train, as well as a knowledge of the infrastructures on which he will be required to operate and of the language used on them.
(10)
In order to increase its cost-effectiveness, the training which train drivers should undergo in order to obtain a harmonised complementary certificate should be focused, to the extent that such is possible and desirable from a safety viewpoint, on the particular services to be performed by the driver, such as, for example, shunting, maintenance services, passenger or freight services. When assessing the implementation of this Directive, the European Railway Agency (hereinafter referred to as ‘the Agency’) should evaluate the need for amending the training requirements specified in the Annex in order better to reflect the new, emerging structure of the market.
(11)
Railway undertakings and infrastructure managers issuing harmonised complementary certificates may themselves provide training for general professional knowledge, linguistic knowledge, knowledge of rolling stock and infrastructures. However, with regard to examinations, any conflict of interests should be avoided, without excluding the possibility that an examiner may belong to the railway undertaking or infrastructure manager issuing the harmonised complementary certificate.
(12)
In accordance with Article 13(4) of Directive 2004/49/EC, railway undertakings and infrastructure managers are responsible for the level of training of the drivers they employ. To this end, railway undertakings and infrastructure managers should take into account the training and competences acquired previously by those drivers, in accordance with Article 13(3) of that Directive. It is also important to ensure that a sufficient number of drivers is trained. In this context, it is necessary, however, to take measures to ensure that investments made by a railway undertaking or an infrastructure manager for the training of a driver do not unduly benefit another railway undertaking or infrastructure manager in the case where that driver voluntarily leaves the former for the latter railway undertaking or infrastructure manager. These measures can be of any kind, such as for example national legislation, collective labour agreements, contractual clauses between driver and employer, or agreements determining the rehire of drivers belonging to one undertaking by another in the case where drivers are party to such agreements.
(13)
Staff competences and health and safety conditions are being developed in the context of the interoperability directives, in particular as part of the ‘traffic management and operation’ TSIs. There is a need to ensure coherence between these TSIs and the Annexes to this Directive. The Commission will achieve this by modifying or adapting the relevant TSI to this Directive and its Annexes using the procedures provided for in Council Directive 96/48/EC of 23 July 1996 on the interoperability of the trans-European high-speed rail system (7) and Directive 2001/16/EC of the European Parliament and of the Council of 19 March 2001 on the interoperability of the conventional rail system (8).
(14)
In order to increase the freedom of movement of workers and safety on Community railways, special attention should be paid to other crew members performing safety-critical tasks on locomotives and trains. Therefore Member States should ensure that other crew members performing safety-critical tasks meet the minimum requirements set out in the TSI on operation and traffic management. Taking account of the national implementation plans to be notified by the Member States in relation to the implementation of that TSI, the Agency should identify possible options for the certification of other crew members performing safety-critical tasks and assess the impact of these different options. On the basis of this report, the Commission should, if appropriate, present a proposal with regard to the conditions and procedures for the certification of other crew members performing safety-critical tasks on locomotives and trains.
(15)
The requirements pertaining to licences and harmonised complementary certificates set out in this Directive should relate solely to the legal conditions entitling a driver to drive a train. All other legal requirements, compatible with Community legislation and applied in a non discriminatory manner, pertaining to railway undertakings, infrastructure managers, infrastructure and rolling stock should equally be complied with before a driver may drive a train on a specific infrastructure.
(16)
This Directive should be without prejudice to the implementation of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (9), and of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (10).
(17)
In order to guarantee the necessary uniformity and transparency, the Community should establish a single certification model, mutually recognised by the Member States, attesting both to train drivers’compliance with certain minimum conditions, and to their professional qualifications and linguistic knowledge, leaving it to the competent authorities in the Member States to issue licences and to railway undertakings and infrastructure managers to issue harmonised complementary certificates.
(18)
The Agency should also examine the use of a smartcard instead of a licence and harmonised complementary certificates. Such a smartcard would have the advantage of combining these two items in one and at the same time could be used for other applications either in the area of security or for driver management purposes.
(19)
All of the information contained in licences, harmonised complementary certificates and the registers of licenses and harmonised complementary certificates should be used by the safety authorities to facilitate evaluation of the staff certification process provided for in Articles 10 and 11 of Directive 2004/49/EC and to speed up the issuing of the safety certificates provided for in those Articles.
(20)
The employment of train drivers certified in accordance with this Directive should not exonerate railway undertakings and infrastructure managers from their obligation to set up a system of monitoring and internal control of the competence and conduct of their train drivers pursuant to Article 9 of and Annex III to Directive 2004/49/EC and should form part of that system. The harmonised complementary certificate should not relieve either railway undertakings or infrastructure managers of their responsibility for safety and, in particular, the training of their staff.
(21)
Certain companies provide the services of train drivers to railway undertakings and infrastructure managers. In such cases, responsibility for ensuring that a driver is licensed and certified in accordance with this Directive should lie with the railway undertaking or infrastructure manager contracting the driver.
(22)
For rail transport to continue to operate effectively, train drivers already working in that profession before the entry into force of this Directive should retain their acquired entitlements during a transition period.
(23)
Unnecessary administrative and financial burdens should be avoided when replacing authorisations to drive issued to drivers before the application of the relevant provisions of this Directive with harmonised complementary certificates and licences which are in conformity with this Directive. Therefore, entitlements to drive previously granted to a driver should be safeguarded, as far as possible. The qualifications and experience of each driver, or group of drivers, should be taken into account by the issuing bodies when authorisations are to be replaced. The issuing body should decide, on the basis of qualifications and/or experience, whether it is necessary for a driver or a group of drivers to undergo any additional examination and/or training before they can receive replacement licences and harmonised complementary certificates. Therefore, it should be a matter for the issuing body to decide whether qualifications and/or experience suffice to issue the required licences and harmonised complementary certificates, without there being any need for further examination or training.
(24)
Unnecessary administrative and financial burdens should also be avoided when train drivers change employer. A railway undertaking employing a driver should take into account competences acquired earlier and should dispense with additional examinations and training as far as possible.
(25)
This Directive should not confer any mutual recognition rights relating to entitlements to drive which drivers have obtained before the application of this Directive, albeit without prejudice to the general mutual recognition scheme set up under Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (11), which shall continue to apply until the end of the transition period.
(26)
The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (12).
(27)
In particular, the Commission should be empowered to establish the conditions and criteria necessary for the implementation of this Directive. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, or to supplement it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.
(28)
When, on imperative grounds of urgency, the normal time-limits for the regulatory procedure with scrutiny cannot be complied with, the Commission should be able to have recourse to the urgency procedure provided for in Article 5a(6) of Decision 1999/468/EC for the adoption of Community criteria for the choice of examiners and examinations as provided for by this Directive, and for the adaptation to scientific and technical progress of the Annexes to this Directive, as provided for thereby.
(29)
In accordance with point 34 of the Interinstitutional Agreement on better law-making (13), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.
(30)
Member States should provide for controls regarding compliance with this Directive and appropriate action where a driver infringes any provision of this Directive.
(31)
Member States should provide for appropriate penalties for infringements of national provisions implementing this Directive.
(32)
Since the objective of this Directive, namely the laying down of a common regulatory framework for the certification of train drivers operating locomotives and trains for the carriage of passengers and goods, cannot be sufficiently achieved by the Member States, and can therefore, by reason of the scale and effects of this Directive, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
(33)
It might prove appropriate, for reasons of cost-effectiveness, to exempt for a limited period of time train drivers operating exclusively on the territory of one Member State from application of the provisions of this Directive pertaining to the obligation for such drivers to hold licences and harmonised complementary certificates in conformity with this Directive. The conditions governing any such exemptions should be clearly defined.
(34)
A Member State which has no railway system, and no immediate prospect of having one, would be under a disproportionate and pointless obligation if it had to transpose and implement this Directive. Therefore, such Member States should be exempted, for as long as they have no railway system, from the obligation to transpose and implement this Directive,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
OBJECTIVE, SCOPE AND DEFINITIONS
Article 1
Objective
This Directive lays down the conditions and procedures for the certification of train drivers operating locomotives and trains on the railway system in the Community. It specifies the tasks for which the competent authorities of the Member States, train drivers and other stakeholders in the sector, in particular railway undertakings, infrastructure managers and training centres, are responsible.
Article 2
Scope
1. This Directive shall apply to train drivers operating locomotives and trains on the railway system in the Community for a railway undertaking requiring a safety certificate or an infrastructure manager requiring a safety authorisation.
2. Member States shall not, on the basis of national provisions pertaining to other staff on board freight trains, prevent freight trains from crossing borders or providing domestic transport in their territory.
3. Without prejudice to the Article 7, Member States may exclude from the measures they adopt in implementation of this Directive train drivers operating exclusively on:
(a)
metros, trams and other light rail systems;
(b)
networks that are functionally separate from the rest of the rail system and are intended only for the operation of local, urban or suburban passenger and freight services;
(c)
privately owned railway infrastructure that exists solely for use by the infrastructure owners for their own freight operations;
(d)
sections of track that are temporarily closed to normal traffic for the purpose of maintaining, renewing or upgrading the railway system.
Article 3
Definitions
For the purposes of this Directive:
(a)
‘competent authority’ means the safety authority referred to in Article 16 of Directive 2004/49/EC;
(b)
‘train driver’ means a person capable and authorised to drive trains, including locomotives, shunting locomotives, work trains, maintenance railway vehicles or trains for the carriage of passengers or goods by rail in an autonomous, responsible and safe manner;
(c)
‘other crew members performing safety-critical tasks’ means staff on board the train who are not train drivers but who help to ensure the safety of the train and of the passengers and goods being transported;
(d)
‘railway system’ means the system composed of the railway infrastructures, comprising lines and fixed installations of the rail system plus the rolling stock of all categories and origin travelling on that infrastructure, as defined in Directives 96/48/EC and 2001/16/EC;
(e)
‘infrastructure manager’ means any body or undertaking that is responsible in particular for establishing and maintaining railway infrastructure, or part thereof, as defined in Article 3 of Directive 91/440/EEC, which may also include the management of infrastructure control and safety systems. The functions of the infrastructure manager on a network or on part of a network may be allocated to different bodies or undertakings;
(f)
‘railway undertaking’ means any railway undertaking as defined in Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (14), and any other public or private undertaking, the activity of which is to provide transport of goods and/or passengers by rail on the basis that the undertaking must ensure traction. The term also includes undertakings which provide traction only;
(g)
‘technical specifications for interoperability’ or ‘TSIs’ means the specifications by which each subsystem or part of a subsystem is covered in order to meet the essential requirements and to ensure the interoperability of the trans-European high-speed and conventional rail systems as defined in Directives 96/48/EC and 2001/16/EC;
(h)
‘Agency’ means the European Railway Agency established by Regulation (EC) No 881/2004 (15) of the European Parliament and of the Council of 29 April 2004;
(i)
‘safety certificate’ means the certificate issued to a railway undertaking by a competent authority in accordance with Article 10 of Directive 2004/49/EC;
(j)
‘certificate’ means the harmonised complementary certificate indicating the infrastructure on which the holder is authorised to drive and the rolling stock which the holder is authorised to drive;
(k)
‘safety authorisation’ means the authorisation issued to an infrastructure manager by a competent authority in accordance with Article 11 of Directive 2004/49/EC;
(l)
‘training centre’ means an entity accredited or recognised by the competent authority to give training courses.
CHAPTER II
CERTIFICATION OF DRIVERS
Article 4
Community certification model
1. All train drivers shall have the necessary fitness and qualifications to drive trains and shall hold the following documents:
(a)
a licence demonstrating that the driver satisfies minimum conditions as regards medical requirements, basic education and general professional skills. The licence shall identify the driver and the issuing authority and shall state the duration of its validity. The licence shall comply with the requirements of Annex I, until the Community certification model is adopted, as provided for in paragraph 4;
(b)
one or more certificates indicating the infrastructures on which the holder is authorised to drive and indicating the rolling stock which the holder is authorised to drive. Each certificate shall comply with the requirements of Annex I.
2. However, the requirement to hold a certificate for a specific part of infrastructure shall not apply in the exceptional cases listed hereafter, provided that another train driver who possesses a valid certificate for the infrastructure concerned sits next to the driver during driving:
(a)
when a disturbance of the railway service necessitates the deviation of trains or maintenance of tracks, as specified by the infrastructure manager;
(b)
for exceptional, one-off services which use historical trains;
(c)
for exceptional, one-off freight services, provided that the infrastructure manager agrees;
(d)
for the delivery or demonstration of a new train or locomotive;
(e)
for the purposes of training and examining drivers.
The use of this possibility shall be a decision of the railway undertaking and may not be imposed by the relevant infrastructure manager or by the competent authority.
Whenever an additional driver is used as provided for above, the infrastructure manager shall be informed beforehand.
3. The certificate shall authorise driving in one or more of the following categories:
(a)
category A: shunting locomotives, work trains, maintenance railway vehicles and all other locomotives when they are used for shunting;
(b)
category B: carriage of passengers and/or of goods.
A certificate may contain an authorisation for all categories, covering all codes as referred to in paragraph 4.
4. By 4 December 2008 the Commission shall adopt, on the basis of a draft prepared by the Agency, a Community model for the licence, the certificate and the certified copy of the certificate, and also determine their physical characteristics, taking into account therein anti-forgery measures. These measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 32(3).
By 4 December 2008, the Commission shall adopt the measures designed to amend non-essential elements of this Directive, by supplementing it, and concerning the Community Codes for the different types in categories A and B as referred to in paragraph 3 of this Article in accordance with the regulatory procedure with scrutiny referred to in Article 32(3) and on the basis of a recommendation from the Agency.
Article 5
Anti-fraud measures
Competent authorities and issuing bodies shall take all necessary steps to avoid the risks of falsification of licences and certificates and tampering with the registers provided for in Article 22.
Article 6
Ownership, language and issuing bodies
1. A licence shall be owned by its holder and shall be issued by the competent authority as defined in Article 3(a). Where a competent authority or its agent issues a licence in a national language which is not a Community language, it shall draw up a bilingual version of the licence using one of the Community languages.
2. A certificate shall be issued by the railway undertaking or the infrastructure manager who employs or contracts the driver. The certificate shall be owned by the undertaking or manager issuing it. However, in accordance with Article 13(3) of Directive 2004/49/EC, drivers shall be entitled to obtain a certified copy. Where a railway undertaking or an infrastructure manager issues a certificate in a national language which is not a Community language, it shall draw up a bilingual version of the certificate using one of the Community languages.
Article 7
Geographical validity
1. A licence shall be valid throughout the whole territory of the Community.
2. A certificate shall be valid only on those infrastructures and rolling stock identified on it.
Article 8
Recognition of certification documents of train drivers of third countries
The certification documents of train drivers of a third country operating exclusively on border-crossing sections of a Member State’s railway system may be recognised by that Member State in accordance with any bilateral agreements with the third country in question.
CHAPTER III
CONDITIONS FOR OBTAINING THE LICENCE AND THE CERTIFICATE
Article 9
Minimum requirements
1. To obtain a licence, applicants shall satisfy the minimum requirements set out in Articles 10 and 11. To obtain a certificate and for it to remain valid, applicants shall hold a licence and satisfy the minimum requirements set out in Articles 12 and 13.
2. A Member State may apply more stringent requirements with regard to the issuing of licences on its own territory. Nevertheless, it shall recognise licences issued by other Member States, in accordance with Article 7.
Section I
Licence
Article 10
Minimum age
Member States shall prescribe the minimum age of licence applicants, which shall be at least 20 years. However, a Member State may issue licences to applicants from the age of 18 years, the validity of such a licence then being limited to the territory of the issuing Member State.
Article 11
Basic requirements
1. Applicants shall have successfully completed at least nine years’ education (primary and secondary) and have successfully concluded basic training equivalent to level 3 referred to in Council Decision 85/368/EEC of 16 July 1985 on the comparability of vocational training qualifications between the Member States of the European Community (16).
2. Applicants shall provide confirmation of their physical fitness by passing a medical examination conducted by, or under the supervision of - to be decided by the Member State - a medical doctor accredited or recognised in accordance with Article 20. The examination shall cover at least the criteria indicated in sections 1.1, 1.2, 1.3 and 2.1 of Annex II.
3. Applicants shall demonstrate their occupational psychological fitness by passing an examination conducted by, or under the supervision of - to be decided by the Member State - a psychologist or a medical doctor accredited or recognised in accordance with Article 20. The examination shall cover at least the criteria indicated in section 2.2 of Annex II.
4. Applicants shall have demonstrated their general professional competence by passing an examination covering at least the general subjects listed in Annex IV.
Section II
Certificate
Article 12
Linguistic knowledge
The linguistic knowledge criterion referred to in Annex VI shall be met for the infrastructure for which the certificate is being applied.
Article 13
Professional qualifications
1. Applicants shall have passed an examination testing their professional knowledge and competence relating to the rolling stock for which the certificate is sought. This examination shall cover at least the general subjects listed in Annex V.
2. Applicants shall have passed an examination testing their professional knowledge and competence relating to the infrastructures for which the certificate is sought. This examination shall cover at least the general subjects listed in Annex VI. Where appropriate, the examination shall also cover linguistic knowledge, in accordance with section 8 of Annex VI.
3. Applicants shall be trained by the railway undertaking or the infrastructure manager in relation to its safety management system provided for by Directive 2004/49/EC.
CHAPTER IV
PROCEDURE FOR OBTAINING THE LICENCE AND THE CERTIFICATE
Article 14
Obtaining a licence
1. The competent authority shall publish the procedure to be followed for obtaining a licence.
2. All licence applications shall be lodged with the competent authority by the candidate driver or any entity on his behalf.
3. Applications submitted to the competent authority may be for the grant of a new licence, the updating of licence particulars, a renewal or a duplicate.
4. The competent authority shall issue the licence as soon as possible and no later than one month after receiving all the necessary documents.
5. A licence shall be valid for 10 years, subject to Article 16(1).
6. A licence shall be issued in a single original. Any duplication of a licence, other than by the competent authority where a duplicate is requested, shall be prohibited.
Article 15
Obtaining a certificate
Each railway undertaking and infrastructure manager shall set up its own procedures for issuing and updating certificates in accordance with this Directive, as part of its safety management system, as well as appeals procedures allowing drivers to request a review of a decision relating to the issue, updating, suspension or withdrawal of a certificate.
In the event of disagreement, the parties may appeal to the competent authority or any independent appeal body.
Railway undertakings and infrastructure managers shall update, without delay, a certificate whenever the certificate holder has obtained additional authorisations relating to rolling stock or infrastructure.
Article 16
Periodic checks
1. In order for a licence to remain valid, its holder shall undergo periodic examinations and/or tests relating to the requirements referred to in Article 11(2) and (3). With regard to medical requirements, the minimum frequency shall be observed in accordance with the provisions of section 3.1 of Annex II. These medical checks shall be conducted by, or under the supervision of, medical doctors accredited or recognised in accordance with Article 20. As far as general professional knowledge is concerned, the provisions of Article 23(8) shall apply.
When renewing a licence, the competent authority shall verify in the register provided for in Article 22(1)(a) that the driver has met the requirements referred to in the first subparagraph of this paragraph.
2. In order for a certificate to remain valid, its holder shall undergo periodic examinations and/or tests relating to the requirements referred to in Articles 12 and 13. The frequency of those examinations and/or tests shall be determined by the railway undertaking or the infrastructure manager employing or contracting the driver in accordance with its own safety management system, and respect the minimum frequencies set out in Annex VII.
For each of these checks the issuing body shall confirm by a statement on the certificate and in the register provided for in Article 22(2)(a) that the driver has met the requirements referred to in the first subparagraph of this paragraph.
3. Where a periodic check is missed or gives a negative result, the procedure laid down in Article 18 shall be applied.
Article 17
Cessation of employment
When a driver ceases to work for a railway undertaking or an infrastructure manager, it shall inform the competent authority without delay.
The licence shall remain valid, provided that the conditions in Article 16(1) remain fulfilled.
A certificate shall become invalid when its holder ceases to be employed as a driver. However, the holder shall receive a certified copy of it and of all documents providing evidence of his training, qualifications, experience and professional competences. When issuing a certificate to a driver, a railway undertaking or infrastructure manager shall take account of all those documents.
Article 18
Monitoring of drivers by railway undertakings and infrastructure managers
1. Railway undertakings and infrastructure managers shall be required to ensure, and to check, that the licences and certificates of the drivers they employ or contract are valid.
They shall set up a system for monitoring their drivers. If the results of such monitoring call into question a driver’s competence for the job and the continuing validity of his licence or certificate, railway undertakings and infrastructure managers shall immediately take the necessary action.
2. If a driver considers that his state of health calls into question his fitness for the job, he shall immediately inform the railway undertaking or infrastructure manager, whichever is appropriate.
As soon as a railway undertaking or infrastructure manager is aware or is informed by a medical doctor that the health of a driver has deteriorated to a point where his fitness for the job is called into question, it shall immediately take the necessary action, including the examination described in section 3.1 of Annex II and, if necessary, the withdrawal of the certificate and the updating of the register provided for in Article 22(2). Furthermore, it shall ensure that at no time during their service drivers are under the influence of any substance which is likely to affect their concentration, attention or behaviour. The competent authority shall be informed without delay of any cases of work incapacity of more than three months.
CHAPTER V
TASKS AND DECISIONS OF THE COMPETENT AUTHORITY
Article 19
Tasks of the competent authority
1. The competent authority shall fulfil the following tasks in a transparent and non-discriminatory manner:
(a)
issuing and updating licences, and providing duplicates, as provided for in Articles 6 and 14;
(b)
ensuring periodic examinations and/or tests as provided for in Article 16(1);
(c)
suspending and withdrawing licences, and notifying the issuing body of reasoned requests for the suspension of certificates, as provided for in Article 29;
(d)
if so designated by the Member State, recognising persons or bodies as provided for in Articles 23 and 25;
(e)
ensuring that a register of persons and bodies accredited or recognised as provided for in Article 20 is published and updated;
(f)
keeping and updating a register of licences as provided for in Articles 16(1) and 22(1);
(g)
monitoring the drivers’ certification process as provided for in Article 26;
(h)
carrying out inspections as provided for in Article 29;
(i)
establishing national criteria for examiners as provided for in Article 25(5).
The competent authority shall respond quickly to requests for information and present any requests for additional information without delay when preparing licences.
2. The competent authority shall not delegate the tasks referred to in points (c), (g) and (i) of paragraph 1 to third parties.
3. Any delegation of tasks shall be transparent and non-discriminatory and shall not give rise to a conflict of interests.
4. Where a competent authority delegates or contracts tasks referred to in points (a) or (b) of paragraph 1 to a railway undertaking, at least one of the following conditions shall be complied with:
(a)
the railway undertaking issues licences only to its own drivers;
(b)
the railway undertaking does not enjoy exclusivity in the territory concerned for any of the delegated or contracted tasks.
5. Where a competent authority delegates or contracts tasks, the authorised representative or contractor shall be required, in performing such tasks, to comply with the obligations imposed on competent authorities by this Directive.
6. Where a competent authority delegates or contracts tasks, it shall set up a system for checking how those tasks have been carried out and shall ensure that the conditions laid down in paragraphs 2, 4 and 5 are complied with.
Article 20
Accreditation and recognition
1. Persons or bodies accredited under this Directive shall be accredited by an accreditation body appointed by the Member State concerned. The accreditation process shall be based on criteria of independence, competence and impartiality, such as the relevant EN 45 000 series European standards and on the evaluation of a dossier submitted by candidates which provides appropriate evidence of their skills in the area in question.
2. As an alternative to the accreditation provided for in paragraph 1, a Member State may provide that persons or bodies recognised under this Directive shall be recognised by the competent authority or a body appointed by the Member State concerned. Recognition shall be based on criteria of independence, competence and impartiality. However, in cases when the particular competence sought is extremely rare, an exception to this rule shall be allowed after a positive opinion is given by the Commission in accordance with the regulatory procedure referred to in Article 32(2).
The criterion of independence does not apply in the case of the training referred to in Article 23(5) and (6).
3. The competent authority shall ensure the publication and updating of a register of persons and bodies which have been accredited or recognised under this Directive.
Article 21
Decisions of the competent authority
1. The competent authority shall state the reasons for its decisions.
2. The competent authority shall ensure that an administrative appeals procedure is set up allowing employers and drivers to request a review of a decision relating to any application under this Directive.
3. Member States shall take the necessary steps to ensure judicial review of the decisions taken by a competent authority.
Article 22
Registers and exchange of information
1. The competent authorities shall be required to:
(a)
keep a register of all licences issued, updated, renewed, amended, expired, suspended, withdrawn or reported lost, stolen or destroyed. This register shall contain the data prescribed in section 4 of Annex I for every licence, which shall be accessible using the national number allotted to each driver. It shall be regularly updated;
(b)
supply, upon reasoned request, information on the status of such licences to the competent authorities of the other Member States, the Agency or any employer of drivers.
2. Each railway undertaking and infrastructure manager shall be required to:
(a)
keep a register, or ensure that a register is kept, of all certificates issued, updated, renewed, amended, expired, suspended, withdrawn or reported lost, stolen or destroyed. This register shall contain the data prescribed in section 4 of Annex I for every certificate, as well as data relating to the periodic checks provided for in Article 16. It shall be regularly updated;
(b)
cooperate with the competent authority of the Member State where they are domiciled in order to exchange information with the competent authority and give it access to data required;
(c)
supply information on the content of such certificates to the competent authorities of the other Member States upon their request, when this is required as a consequence of their transnational activities.
3. Train drivers shall have access to the data concerning them which is stored in the registers of competent authorities and of railway undertakings, and shall be provided with a copy of that data on request.
4. The competent authorities shall cooperate with the Agency in order to ensure the interoperability of the registers provided for in paragraphs 1 and 2.
To this end, by 4 December 2008, the Commission shall adopt, on the basis of a draft prepared by the Agency, the basic parameters of the registers to be set up, such as data to be recorded, their format and the data exchange protocol, access rights, the duration of data retention and the procedures to be followed in cases of bankruptcy. These measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 32(3).
5. The competent authorities, infrastructure managers and railway undertakings shall ensure that the registers provided for in paragraphs 1 and 2 and the modes of operation of such registers comply with Directive 95/46/EC.
6. The Agency shall ensure that the system set up in paragraph 2(a) and (b) complies with Regulation (EC) No 45/2001.
CHAPTER VI
TRAINING AND EXAMINATION OF DRIVERS
Article 23
Training
1. The training of drivers shall include a part relating to the licence and reflecting general professional knowledge as described in Annex IV, and a part relating to the certificate and reflecting specific professional knowledge, as described in Annexes V and VI.
2. The training method shall satisfy the criteria laid down in Annex III.
3. The detailed training objectives are defined in Annex IV for the licence, and in Annexes V and VI for the certificate. These detailed training objectives may be supplemented by either:
(a)
the relevant TSIs adopted in accordance with Directive 96/48/EC or Directive 2001/16/EC. In this case, the Commission shall ensure consistency between the TSIs and Annexes IV, V and VI; or
(b)
the criteria proposed by the Agency pursuant to Article 17 of Regulation (EC) No 881/2004. These criteria, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 32(3).
4. Pursuant to Article 13 of Directive 2004/49/EC, Member States shall take steps to ensure that candidate drivers have fair and non-discriminatory access to the training needed to fulfil the conditions for obtaining the licence and the certificate.
5. Training tasks relating to general professional knowledge as provided for in Article 11(4), linguistic knowledge as provided for in Article 12 and professional knowledge relating to rolling stock as provided for in Article 13(1) shall be performed by persons or bodies accredited or recognised in accordance with Article 20.
6. Training tasks relating to infrastructure knowledge as provided for in Article 13(2), including route knowledge and operating rules and procedures, shall be performed by persons or bodies accredited or recognised by the Member State where the infrastructure is located.
7. With regard to licences, the general system for the recognition of professional qualifications established by Directive 2005/36/EC shall continue to apply to the recognition of the professional qualifications of drivers who are nationals of a Member State and have obtained their training certificate in a third country.
8. A process of continuous training shall be set up in order to ensure that staff competences are maintained, in accordance with point 2(e) of Annex III to Directive 2004/49/EC.
Article 24
Cost of training
1. Member States shall ensure that the necessary measures are taken in order to ensure that investments made by a railway undertaking or an infrastructure manager for the training of a driver do not unduly benefit another railway undertaking or infrastructure manager in the case where that driver voluntarily leaves the former for the latter railway undertaking or infrastructure manager.
2. Particular attention shall be paid to the implementation of this Article in the report provided for in Article 33, in particular as regards point (f) thereof.
Article 25
Examinations
1. The examinations and examiners intended for the purpose of checking the requisite qualifications shall be determined:
(a)
for the part relating to the licence: by the competent authority when laying down the procedure to be followed to obtain a licence in accordance with Article 14(1);
(b)
for the part relating to the certificate: by the railway undertaking or the infrastructure manager when laying down the procedure to be followed to obtain a certificate in accordance with Article 15.
2. The examinations referred to in paragraph 1 shall be overseen by competent examiners, accredited or recognised in accordance with Article 20, and shall be organised in such a way as to avoid any conflict of interest.
3. Infrastructure knowledge evaluation, including route knowledge and operation rules, shall be performed by persons or bodies accredited or recognised by the Member State where the infrastructure is located.
4. The examinations referred to in paragraph 1 shall be organised in such a way that any conflict of interests is avoided, without prejudice to the possibility that the examiner may belong to the railway undertaking or infrastructure manager issuing the certificate.
5. The choice of examiners and examinations may be subject to Community criteria established on the basis of a draft prepared by the Agency. These measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 32(3). On imperative grounds of urgency, the Commission may have recourse to the urgency procedure referred to in Article 32(4).
In the absence of such Community criteria, the competent authorities shall establish national criteria.
6. There shall be theoretical and practical examinations at the end of the training course. Driving ability shall be assessed during driving tests on the network. Simulators may also be used for examining the application of operational rules and driver performance in particularly difficult situations.
CHAPTER VII
ASSESSMENT
Article 26
Quality standards
The competent authorities shall ensure that all activities associated with training, the assessment of skills and the updating of licences and certificates are the subject of continuous monitoring under a quality standards system. This shall not apply to activities already covered by the safety management systems put in place by railway undertakings and infrastructure managers in accordance Directive 2004/49/EC.
Article 27
Independent assessment
1. An independent assessment of the procedures for the acquisition and assessment of professional knowledge and competences, and of the system for the issuing of licences and certificates, shall be carried out in each Member State at intervals of not more than five years. This shall not apply to activities already covered by the safety management systems put in place by railway undertakings and infrastructure managers in accordance with Directive 2004/49/EC. The assessment shall be carried out by qualified persons who are not themselves involved in the activities concerned.
2. The results of these independent assessments shall be duly documented and brought to the attention of the competent authorities concerned. If necessary, Member States shall take appropriate measures to remedy any shortcomings brought to light by the independent assessment.
CHAPTER VIII
OTHER CREW MEMBERS
Article 28
Report on other crew members
1. The Agency shall, in a report to be presented by 4 June 2009, and taking into account the TSI on operation and traffic management developed under Directives 96/48/EC and 2001/16/EC, identify the profile and tasks of other crew members performing safety-critical tasks whose professional qualifications accordingly contribute to railway safety which should be regulated at Community level by means of a system of licences and/or certificates which may be similar to the system established by this Directive.
2. On the basis of this report the Commission shall, by 4 June 2010, present a report and, if appropriate, bring forward a legislative proposal on a certification system for the other crew members referred to in paragraph 1.
CHAPTER IX
CONTROLS AND PENALTIES
Article 29
Controls by the competent authority
1. The competent authority may at any time take steps to verify, on board trains operating in its area of jurisdiction, that the train driver is in possession of the documents issued pursuant to this Directive.
2. Notwithstanding verification as provided for in paragraph 1, in the event of negligence at the workplace the competent authority may verify if the driver in question complies with the requirements set out in Article 13.
3. The competent authority may carry out enquiries regarding compliance with this Directive by drivers, railway undertakings, infrastructure managers, examiners and training centres pursuing their activities in its area of jurisdiction.
4. If the competent authority finds that a driver no longer satisfies one or more required conditions, it shall take the following measures:
(a)
if it concerns a licence issued by the competent authority, the competent authority shall suspend the licence. The suspension shall be temporary or permanent depending on the scale of the problems created for rail safety. It shall immediately inform the driver concerned and his employer of its reasoned decision, without prejudice to the right of review provided for in Article 21. It shall indicate the procedure to be followed for recovering the licence;
(b)
if it concerns a licence issued by a competent authority in another Member State, the competent authority shall approach that authority and provide a reasoned request either that a further inspection be carried out or that the licence be suspended. The requesting competent authority shall inform the Commission and the other competent authorities of its request. The authority that issued the licence in question shall examine the request within four weeks and notify the other authority of its decision. The authority that issued the licence shall also inform the Commission and the other competent authorities of the decision. Any competent authority may prohibit train drivers from operating in its area of jurisdiction pending notification of the issuing authority’s decision;
(c)
if it concerns a certificate, the competent authority shall approach the issuing body and request either that a further inspection be carried out or that the certificate be suspended. The issuing body shall take appropriate measures and report back to the competent authority within a period of four weeks. The competent authority may prohibit train drivers from operating in its area of jurisdiction pending the report of the issuing body, and shall inform the Commission and the other competent authorities thereof.
At all events, if the competent authority considers that a particular driver creates a serious threat to the safety of the railways, it shall immediately take the necessary action, such as asking the infrastructure manager to stop the train and prohibiting the driver from operating in its area of jurisdiction for as long as necessary. It shall inform the Commission and the other competent authorities of any such decision.
In all cases the competent authority, or the body designated for this, shall update the register provided for in Article 22.
5. If a competent authority considers that a decision taken by a competent authority in another Member State pursuant to paragraph 4 fails to comply with the relevant criteria, the matter shall be referred to the Commission which shall deliver its opinion within three months. If necessary, corrective measures shall be proposed to the Member State concerned. In the event of disagreement or dispute, the matter shall be referred to the Committee referred to in Article 32(1), and the Commission shall take whatever measures are necessary in accordance with the regulatory procedure referred to in Article 32(2). A Member State may maintain a prohibition on a driver driving on its territory in accordance with paragraph 4 until the matter is concluded in accordance with this paragraph.
Article 30
Penalties
Without prejudice to any other penalties or procedures established by this Directive, the Member States shall lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate, non-discriminatory and dissuasive. The Member States shall notify the Commission of those provisions by the date specified in the first subparagraph of Article 36(1) at the latest and shall notify it without delay of any subsequent amendment affecting them.
CHAPTER X
FINAL PROVISIONS
Article 31
Adaptation of the Annexes
1. Measures designed to amend non-essential elements of this Directive by adapting the Annexes to scientific and technical progress shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 32(3). On imperative grounds of urgency, the Commission may have recourse to the urgency procedure referred to in Article 32(4).
2. Where the adaptations concern health and safety conditions, or professional competences, the Commission shall ensure that the social partners are consulted prior to their preparation.
Article 32
Committee
1. The Commission shall be assisted by the Committee set up by Article 21 of Directive 96/48/EC.
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.
3. Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
4. Where reference is made to this paragraph, Article 5a(1), (2), (4) and (6), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
Article 33
Report
The Agency shall evaluate the development of the certification of train drivers in accordance with this Directive. It shall submit to the Commission, not later than four years following the adoption of the basic parameters of the registers provided for in Article 22(4), a report containing, where appropriate, improvements to be made to the system as regards:
(a)
the procedures for issuing licences and certificates;
(b)
the accreditation of training centres and examiners;
(c)
the quality system put in place by the competent authorities;
(d)
the mutual recognition of certificates;
(e)
the adequacy of the training requirements specified in Annexes IV, V and VI in relation to the market structure and the categories mentioned in Article 4(2)(a);
(f)
the interconnection of registers and mobility in the employment market.
Furthermore, in this report the Agency may, if appropriate, recommend measures regarding the theoretical and practical examination of the professional knowledge of applicants for the harmonised certificate for rolling stock and relevant infrastructure.
The Commission shall take appropriate measures on the basis of these recommendations and shall propose, if necessary, changes to this Directive.
Article 34
Use of smartcards
By 4 December 2012, the Agency shall examine the possibility of using a smartcard combining the licence and certificates provided for in Article 4, and shall prepare a cost/benefit analysis thereof.
Measures designed to amend non-essential elements of this Directive and relating to the technical and operating specifications for such a smartcard shall be adopted on the basis of a draft prepared by the Agency and in accordance with the regulatory procedure with scrutiny referred to in Article 32(3).
If the implementation of the smartcard does not entail any modification to this Directive or the Annexes hereto, the specifications of the smartcard shall be adopted in accordance with the regulatory procedure referred to in Article 32(2).
Article 35
Cooperation
Member States shall assist one another in the implementation of this Directive. Competent authorities shall cooperate during this phase of implementation.
The Agency shall assist this cooperation and organise appropriate meetings with representatives of the competent authorities.
Article 36
Implementation
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 4 December 2009. They shall forthwith inform the Commission thereof.
When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
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. The Commission shall inform the other Member States thereof.
3. The obligations for transposition and implementation of this Directive shall not apply to Cyprus and Malta as long as no railway system is established within their territory.
Article 37
Gradual phasing-in and transition periods
This Directive shall be phased in gradually as indicated below.
1.
The registers provided for in Article 22 shall be set up within two years of the adoption of the basic parameters of the registers provided for in Article 22(4).
2.
(a)
Within two years of the adoption of the basic parameters of the registers provided for in Article 22(4), certificates or licences shall be issued in accordance with this Directive to drivers performing cross-border services, cabotage services or freight services in another Member State, or work in at least two Member States, without prejudice to the provisions of point 3.
From that same date, all train drivers performing the services listed above, including those not yet licensed or certified in accordance with this Directive, shall comply with the periodic checks provided for in Article 16.
(b)
Within two years of the setting-up of the registers provided for in point 1, all new licences and certificates shall be issued in accordance with this Directive, without prejudice to the provisions of point 3.
(c)
Within seven years of the setting-up of the registers provided for in point 1, all drivers shall hold licences and certificates in conformity with this Directive. The issuing bodies shall take into account all professional competencies already acquired by each driver in such a way that this requirement does not generate unnecessary administrative and financial burdens. Entitlements to drive previously granted to drivers shall be safeguarded, as far as possible. The issuing bodies may nevertheless decide, for individual drivers or for groups of drivers, as appropriate, that additional examinations and/or training are necessary in order to obtain licences and/or certificates under this Directive.
3.
Drivers authorised to drive in accordance with the provisions which applied prior to the application of point 2(a) or (b) may continue to pursue their professional activities on the basis of their entitlements, and without applying the provisions of this Directive, for up to seven years from the setting-up of the registers provided for in point 1.
In the case of apprentices who started an approved education and training programme or an approved training course prior to the application of point 2(a) or (b), Member States may certify these apprentices in accordance with existing national provisions.
For drivers and apprentices referred to in this point, the competent authority or authorities involved may, in exceptional cases, grant exemptions from the medical requirements laid down in Annex II. The validity of any licence issued with such exemption shall be limited to the territory of the Member States concerned.
4.
Competent authorities, railway undertakings and infrastructure managers shall ensure the gradual application of periodic checks corresponding to those provided for by Article 16 to drivers who do not hold licences and certificates in conformity with this Directive.
5.
Where a Member State so requests, the Commission shall ask the Agency, in consultation with that Member State, to carry out a cost/benefit analysis of the application of the provisions of this Directive to train drivers operating exclusively on the territory of that Member State. The cost/benefit analysis shall cover a period of 10 years. This cost/benefit analysis shall be submitted to the Commission within two years of the setting-up of the registers provided for in point 1.
If this cost/benefit analysis shows that the costs of applying the provisions of this Directive to such train drivers outweigh the benefits, the Commission shall, in accordance with the regulatory procedure referred to in Article 32(2), adopt a decision within six months following the submission of the results of this cost/benefit analysis. The decision may be that the provisions of point 2(b) and (c) of this Article do not have to be applied to such train drivers for a period of up to 10 years on the territory of the Member State concerned.
No later than 24 months prior to the expiry of this temporary exemption period, the Commission, taking into account relevant developments in the railway sector in the Member State concerned, may, in accordance with the regulatory procedure referred to in Article 32(2), request the Agency to carry out another cost/benefit analysis, to be submitted to the Commission no later than 12 months prior to the expiry of this temporary exemption period. The Commission shall take a decision in accordance with the procedure described in the second subparagraph of this point.
Article 38
Entry into force
This Directive shall enter in force on the day following its publication in the Official Journal of the European Union.
Article 39
This Directive is addressed to the Member States.
Done at Strasbourg, 23 October 2007.
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COMMISSION DECISION
of 27 April 2007
on a financial contribution from the Community towards emergency measures to combat avian influenza in Denmark in 2006
(notified under document number C(2007) 1820)
(Only the Danish text is authentic)
(2007/310/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), and in particular Article 3(3) and 3a(1) thereof,
Whereas:
(1)
Decision 90/424/EEC lays down the procedures governing the Community’s financial contribution towards specific veterinary measures, including emergency measures. Decision 90/424/EEC, as amended by Decision 2006/53/EC (2), provides for a Community financial contribution to Member States to cover certain costs involved in taking measures to eradicate avian influenza.
(2)
Outbreaks of avian influenza occurred in Denmark in 2006. The emergence of that disease represents a serious risk to the Community’s livestock population. Under Article 3a(2) of Decision 90/424/EEC, Denmark took measures to combat those outbreaks.
(3)
The payment of a Community financial contribution must be made subject to the condition that the planned measures were actually implemented and that the competent authorities provided all the necessary information to the Commission within certain deadlines.
(4)
Commission Regulation (EC) No 349/2005 of 28 February 2005 laying down rules on the Community financing of emergency measures and of the campaign to combat certain animal diseases under Council Decision 90/424/EEC (3), following the amendment of Decision 90/424/EEC by Decision 2006/53/EC, no longer covers avian influenza. It is therefore necessary to expressly provide in the present Decision that the granting of a financial contribution to Denmark is subject to compliance with certain rules laid down in Regulation (EC) No 349/2005.
(5)
Article 3a(3) of Decision 90/424/EEC provides that the Community financial contribution is to be 50 % of the eligible costs incurred by the Member State.
(6)
Denmark has fully complied with its technical and administrative obligations as set out in Articles 3(3) and 3a(2) of Decision 90/424/EEC. Denmark has forwarded to the Commission information on the costs incurred in the framework of this outbreak on 8 June 2006 and thereafter continued to provide all necessary information on costs of compensation and operational expenditure.
(7)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Financial contribution from the Community
1. A financial contribution from the Community may be granted to Denmark towards the costs incurred by that Member State in taking the measures referred to in Article 3a(2) of Decision 90/424/EEC to combat avian influenza in 2006.
The financial contribution shall be 50 % of the costs incurred that are eligible for Community funding.
2. For the purposes of this Decision, Articles 2 to 5 and Articles 7 and 8 and Article 9(2), (3) and (4) and Article 10 of Regulation (EC) No 349/2005 shall apply mutatis mutandis.
Article 2
Addressee
This Decision is addressed to the Kingdom of Denmark.
Done at Brussels, 27 April 2007.
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COMMISSION REGULATION (EC) No 1247/2008
of 11 December 2008
derogating from Regulations (EC) Nos 2402/96, 2058/96, 2305/2003, 955/2005, 969/2006, 1918/2006, 1964/2006, 1002/2007, 27/2008 and 1067/2008 as regards the dates for lodging import licence applications and issuing import licences in 2009 under the tariff quotas for sweet potatoes, manioc starch, manioc, cereals, rice and olive oil and derogating from Regulations (EC) Nos 382/2008, 1518/2003, 596/2004 and 633/2004 as regards the dates for issuing export licences in 2009 in the beef and veal, pigmeat, egg and poultrymeat sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 96/317/EC of 13 May 1996 concerning the conclusion of the results of consultations with Thailand under GATT Article XXIII (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), and in particular Article 1(1) thereof,
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) (3), and in particular Articles 144(1), 148 and 161(3), in conjunction with Article 4 thereof,
Whereas:
(1)
Commission Regulation (EC) No 2402/96 of 17 December 1996 opening and setting administrative rules for certain annual tariff quotas for sweet potatoes and manioc starch (4) lays down specific provisions for lodging import licence applications and issuing import licences for sweet potatoes under quotas 09.4013 and 09.4014 and for manioc starch under quotas 09.4064 and 09.4065.
(2)
Commission Regulation (EC) No 27/2008 of 15 January 2008 opening and providing for the administration of certain annual tariff quotas for products covered by CN codes 0714 10 91, 0714 10 98, 0714 90 11 and 0714 90 19 originating in certain third countries other than Thailand (5) lays down specific provisions for lodging import licence applications and issuing import licences, for the products concerned, under quotas 09.4009, 09.4010, 09.4011, 09.4012 and 09.4021.
(3)
Commission Regulations (EC) Nos 1067/2008 of 30 October 2008 opening and providing for the administration of Community tariff quotas for common wheat of a quality other than high quality from third countries and derogating from Council Regulation (EC) No 1234/2007 (6), 2305/2003 of 29 December 2003 opening and providing for the administration of a Community tariff quota for imports of barley from third countries (7) and 969/2006 of 29 June 2006 opening and providing for the administration of a Community tariff quota for imports of maize from third countries (8) lay down specific provisions for lodging import licence applications and issuing import licences for common wheat of a quality other than high quality under quotas 09.4123, 09.4124 and 09.4125, for barley under quota 09.4126 and for maize under quota 09.4131.
(4)
Commission Regulations (EC) Nos 2058/96 of 28 October 1996 opening and providing for the management of a tariff quota for broken rice of CN code 1006 40 00 for production of food preparations of CN code 1901 10 (9), 1964/2006 of 22 December 2006 laying down detailed rules for the opening and administration of an import quota for rice originating in Bangladesh, pursuant to Council Regulation (EEC) No 3491/90 (10), 1002/2007 of 29 August 2007 laying down detailed rules for the application of Council Regulation (EC) No 2184/96 concerning imports into the Community of rice originating in and coming from Egypt (11), and 955/2005 of 23 June 2005 opening a Community import quota for rice originating in Egypt (12) lay down specific provisions for lodging import licence applications and issuing import licences for broken rice under quota 09.4079, for rice originating in Bangladesh under quota 09.4517, for rice originating and coming from Egypt under quota 09.4094 and for rice originating in Egypt under quota 09.4097.
(5)
Commission Regulation (EC) No 1918/2006 of 20 December 2006 opening and providing for the administration of tariff quota for olive oil originating in Tunisia (13) lays down specific provisions for lodging import licence applications and issuing import licences for olive oil under quota 09.4032.
(6)
In view of the public holidays in 2009, derogations should be made, at certain times, from Regulations (EC) Nos 2402/96, 2058/96, 2375/2002, 2305/2003, 955/2005, 969/2006, 1918/2006, 1964/2006, 1002/2007 and 27/2008 as regards the dates for lodging import licence applications and issuing import licences in order to ensure compliance with the quota volumes in question.
(7)
The second subparagraph of Article 12(1) of Commission Regulation (EC) No 382/2008 of 21 April 2008 on rules of application for import and export licences in the beef and veal sector (14), Article 3(3) of Commission Regulation (EC) No 1518/2003 of 28 August 2003 laying down detailed rules for implementing the system of export licences in the pigmeat sector (15), Article 3(3) of Commission Regulation (EC) No 596/2004 of 30 March 2004 laying down detailed rules for implementing the system of export licences in the egg sector (16) and Article 3(3) of Commission Regulation (EC) No 633/2004 of 30 March 2004 laying down detailed rules for implementing the system of export licences in the poultrymeat sector (17) provide that export licences are to be issued on the Wednesday following the week in which the licence applications are lodged, provided that the Commission has not taken any particular measure in the meantime.
(8)
In view of the public holidays in 2009 and the resulting impact on the publication of the Official Journal of the European Union, the period between the lodging of applications and the day on which the licences are to be issued will be too short to ensure proper management of the market. That period should therefore be extended.
(9)
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
Sweet potatoes
1. By way of derogation from Article 3 of Regulation (EC) No 2402/96, applications for import licences for sweet potatoes under quotas 09.4013 and 09.4014 for 2009 may not be lodged before Tuesday 6 January 2009 or after Tuesday 15 December 2009.
2. By way of derogation from Article 8(1) of Regulation (EC) No 2402/96, import licences for sweet potatoes applied for on the date indicated in Annex I hereto under quotas 09.4013 and 09.4014 shall be issued on the date indicated therein, subject to the measures adopted pursuant to Article 7(2) of Commission Regulation (EC) No 1301/2006 (18).
Article 2
Manioc starch
1. By way of derogation from the first paragraph of Article 9 of Regulation (EC) No 2402/96, applications for import licences for manioc starch under quotas 09.4064 and 09.4065 for 2009 may not be lodged before Tuesday 6 January 2009 or after Tuesday 15 December 2009.
2. By way of derogation from Article 13(1) of Regulation (EC) No 2402/96, import licences for manioc starch applied for on the date indicated in Annex II hereto under quotas 09.4064 and 09.4065 shall be issued on the date indicated therein, subject to the measures adopted pursuant to Article 7(2) of Commission Regulation (EC) No 1301/2006.
Article 3
Manioc
1. By way of derogation from Article 8(1) of Regulation (EC) No 27/2008, applications for import licences for manioc under quotas 09.4009, 09.4010, 09.4011, 09.4012 and 09.4021 for 2009 may not be lodged before Monday 5 January 2009 or after 13:00 (Brussels time) on Wednesday 16 December 2009.
2. By way of derogation from Article 8(4) of Regulation (EC) No 27/2008, import licences for manioc applied for on the dates indicated in Annex III hereto under quotas 09.4009, 09.4010, 09.4011, 09.4012 and 09.4021 shall be issued on the date indicated therein, subject to the measures adopted pursuant to Article 7(2) of Regulation (EC) No 1301/2006.
Article 4
Cereals
1. By way of derogation from the second subparagraph of Article 4(1) of Regulation (EC) No 1067/2008, the first period for lodging applications for import licences for common wheat of a quality other than high quality under quotas 09.4123, 09.4124 and 09.4125 for 2009 shall not start until 1 January 2009. Such applications may not be lodged after 13:00 (Brussels time) on Friday 11 December 2009.
2. By way of derogation from the second subparagraph of Article 3(1) of Regulation (EC) No 2305/2003, the first period for lodging applications for import licences for barley under quota 09.4126 for 2009 shall not start until 1 January 2009. Such applications may not be lodged after 13:00 (Brussels time) on Friday 11 December 2009.
3. By way of derogation from the second subparagraph of Article 4(1) of Regulation (EC) No 969/2006, the first period for lodging applications for import licences for maize under quota 09.4131 for 2009 shall not start until 1 January 2009. Such applications may not be lodged after 13:00 (Brussels time) on Friday 11 December 2009.
Article 5
Rice
1. By way of derogation from the third subparagraph of Article 2(1) of Regulation (EC) No 2058/96, the first period for lodging applications for import licences for broken rice under quota 09.4079 for 2009 shall not start until 1 January 2009. Such applications may not be lodged after 13:00 (Brussels time) on Friday 11 December 2009.
2. By way of derogation from the first subparagraph of Article 4(3) of Regulation (EC) No 1964/2006, the first period for lodging applications for import licences for rice originating in Bangladesh under quota 09.4517 for 2009 shall not start until 1 January 2009. Such applications may not be lodged after 13:00 (Brussels time) on Friday 11 December 2009.
3. By way of derogation from Article 2(3) of Regulation (EC) No 1002/2007, the first period for lodging applications for import licences for rice originating in and coming from Egypt under quota 09.4094 for 2009 shall not start until 1 January 2009. Such applications may not be lodged after 13:00 (Brussels time) on Friday 11 December 2009.
4. By way of derogation from Article 4(1) of Regulation (EC) No 955/2005, the first period for lodging applications for import licences for rice originating in Egypt under quota 09.4097 for 2009 shall not start until 1 January 2009. Such applications may not be lodged after 13:00 (Brussels time) on Friday 11 December 2009.
Article 6
Olive oil
By way of derogation from Article 3(3) of Regulation (EC) No 1918/2006, import licences for olive oil applied for on Monday 6 or Tuesday 7 April 2009 under quota 09.4032 shall be issued on Friday 17 April 2009, subject to the measures adopted pursuant to Article 7(2) of Regulation (EC) No 1301/2006.
Article 7
Licences for exports of beef and veal, pigmeat, eggs and poultrymeat attracting refunds
By way of derogation from the second subparagraph of Article 12(1) of Regulation (EC) No 382/2008, Article 3(3) of Regulation (EC) No 1518/2003, Article 3(3) of Regulation (EC) No 596/2004 and Article 3(3) of Regulation (EC) No 633/2004, export licences applied for during the periods referred to in Annex IV hereto shall be issued on the corresponding dates set out therein.
The derogation provided for in the first paragraph shall apply only where none of the particular measures provided for in Article 12(2) and (3) of Regulation (EC) No 382/2008, Article 3(4) of Regulation (EC) No 1518/2003, Article 3(4) of Regulation (EC) No 596/2004 and Article 3(4) of Regulation (EC) No 633/2004 is taken before those dates of issue.
Article 8
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, 11 December 2008.
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COUNCIL REGULATION (EEC) N° 3905/92 of 17 December 1992 opening and providing for the administration of Community tariff quotas for certain fruits and fruit juices
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 pursuant to the Agreement with the United States of America on the Mediterranean preferences, citrus and pasta, the Community has undertaken to suspend provisionally and in part the customs duties applicable to certain fruits and fruit juices within the limits of Community tariff quotas of appropriate volumes and of varying duration; whereas in order to ensure the balance of reciprocal concessions provided for in the Agreement, the Commission may, by means of a Regulation, suspend the application of the tariff measures in question;
Whereas the use of these tariff quotas is, however, conditional on presentation to the Community customs authorities of a certificate of authenticity issued by the competent authorities of the country of origin certifying that the products comply with the specific characteristics laid down;
Whereas Community tariff quotas for sweet oranges of high quality, citrus hybrids known as 'Minneolas` and certain types of frozen concentrated orange juice should therefore be opened for all or part of 1993;
Whereas all Community importers should be ensured equal and continuous access to the said quotas and the duty rates laid down for the quotas should be applied consistently to all imports of the products in question into all Member States until the quotas are exhausted;
Whereas the necessary measures should be taken to ensure efficient administration of the tariff quotas at Community level by providing for Member States to draw against the quota volumes such quantities as they may need to cover actual imports as recorded; whereas this method of administration requires close cooperation between Member States and the Commission;
Whereas since the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg are united within, and jointly represented by, the Benelux Economic Union, any operation concerning the administration of quantities drawn by that economic union may be carried out by any one of its members,
HAS ADOPTED THIS REGULATION:
Article 1
The customs duties applicable to imports of the following products shall be suspended during the periods, at the levels and within the limits of the Community tariff quotas shown below:
TABLE
Article 2
1. For the purposes of this Regulation:
(a) sweet oranges of high quality means oranges of similar varietal characteristics which are mature, firm, well-formed, at least fairly well coloured, of fairly smooth texture and are free from decay, broken skins which are not healed, hard or dry skins, exanthema, growth cracks, bruises (except those incident to normal handling and packing), and are free from damage caused by dryness or mushy condition, split, rough, wide or protruding navels, creasing, scars, oil spots, scale, sunburn, dirt or other foreign material, disease, insects or damage caused by mechanical or other means, provided that not more than 15 % of the fruit in any lot fails to meet these specifications and, included in this amount, not more than 5 % shall be allowed for defects causing serious damage and, included in this latter amount, not more than 0,5 % may be affected by decay;
(b) citrus fruit hybrids known as 'Minneolas` means hybrids of the citrus fruit variety 'Minneola` (Citrus paradisi Macf. cv. Duncan and Citrus reticulata blanca cv. Dancy);
(c) frozen concentrated orange juice having a degree of concentration of up to 50 degrees Brix means orange juice that has a density of 1,229 g/cm³ or less at 20 °C.
2. Use of the tariff quotas referred to in paragraph 1 shall be subject to:
- presentation, in support of the entry for release for free circulation, of a certificate of authenticity conforming to one of the models in Annex I, issued by the competent authorities of the country of origin - listed in Annex II - certifying that the products shown on it possess the specific characteristics referred to in paragraph 1, or - in the case of concentrated orange juice, presentation to the Commission before importation of a general attestation in which the competent authority of the country of origin certifies that concentrated orange juice produced in that country does not contain the juice of blood oranges. The Commission shall inform the Member States to enable them to notify the customs departments concerned.
Article 3
The tariff quotas referred to in Article 1 shall be managed by the Commission, which may take any appropriate administrative measures to ensure that they are managed efficiently.
Article 4
Where an importer presents a product covered by this Regulation for release for free circulation in a Member State, applying to take advantage of the preferential arrangements, and the entry is accepted by the customs authorities, the Member State concerned shall, by notifying the Commission, draw an amount corresponding to its requirements from the quota volume.
Requests for drawings, indicating the date on which the entries were accepted, must be sent to the Commission without delay.
Drawings shall be granted by the Commission in chronological order of the dates on which the customs authorities of the Member States concerned accepted the entries for release for free circulation, to the extent that the available balance so permits.
If a Member State does not use a drawing in full it shall return any unused portion to the corresponding quota volume as soon as possible.
If the quantities requested are greater than the available balance of the quota volume, the balance shall be allocated among applicants pro rata. The Commission shall inform the Member States accordingly.
Article 5
Each Member State shall ensure that importers of the products in question have equal and continuous access to the quotas for as long as the balance of the relevant quota volume so permits.
Article 6
Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with.
Article 7
The Commission may, by means of a Regulation, suspend the application of the tariff quotas opened for by this Regulation if the reciprocity provided for in the Agreement is no longer ensured.
Article 8
This Regulation shall enter into force on 1 January 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 December 1992.
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Commission Regulation (EC) No 258/2002
of 12 February 2002
determining the loss of income and the premiums applicable per ewe and per female goat in the Member States and the payment of the specific aid for sheep and goat farming in certain less-favoured areas of the Community for the 2001 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2467/98 of 3 November 1998 on the common organisation of the market in sheepmeat and goatmeat(1), as amended by Regulation (EC) No 1669/2000(2), and in particular Article 5(6) thereof,
Having regard to Council Regulation (EC) No 1454/2001 of 28 June 2001 introducing specific measures for certain agricultural products for the Canary Islands and repealing Regulation (EEC) No 1601/92 (Poseican)(3), and in particular Article 6 thereof,
Whereas:
(1) Regulation (EC) No 2467/98 is replaced by Council Regulation (EC) No 2529/2001 of 19 December 2001 on the common organisation of the market in sheepmeat and goatmeat(4). However according to Article 31 of Regulation (EC) No 2529/2001, Regulation (EC) No 2467/98 shall continue to apply in relation to the 2001 marketing year.
(2) Article 5(1) and (5) of Regulation (EC) No 2467/98 provides for the grant of a premium to compensate for any loss of income sustained by producers of sheepmeat and, in certain areas, of goatmeat. Those areas are defined in Annex I to Regulation (EC) No 2467/98 and in Article 1 of Commission Regulation (EC) No 2738/1999 of 21 December 1999 determining the mountain areas in which the premium for goatmeat producers is granted(5).
(3) Pursuant to Article 5(6) of Regulation (EC) No 2467/98, the Member States were authorised by Commission Regulation (EC) No 1066/2001(6) to pay an initial advance of the premium and of the specific aid and by Commission Regulation (EC) No 1992/2001(7) to pay a second advance of the premium to sheepmeat and goatmeat producers. The definitive premiums to be paid in respect of the 2001 marketing year must thus be fixed.
(4) Pursuant to Article 5(2) of Regulation (EC) No 2467/98, the amount of the premium per ewe for producers of heavy lambs is obtained by multiplying the loss of income referred to in the second subparagraph of paragraph 1 of that Article by a coefficient expressing the annual average production of heavy lamb meat per ewe producing these lambs expressed per 100 kilograms of carcass weight. Article 5(3) of that Regulation fixes the coefficient for producers of light lambs at 80 % of the coefficient for producers of heavy lambs. Article 5(5) of that Regulation also fixes the amount per female for producers of the caprine species at 80 % of the premium per ewe for producers of heavy lambs.
(5) Pursuant to Article 13 of Regulation (EC) No 2467/98, the premium must be reduced by the impact on the basic price of the coefficient provided for in paragraph 2 of that Article. That coefficient is fixed by Article 13(4) at 7 %.
(6) Under Council Regulation (EEC) No 1323/90(8), as last amended by Regulation (EC) No 193/98(9), the Council instituted specific aid for sheep and goat farming in certain less-favoured areas of the Community. It lays down that the aid is to be granted under the same conditions as those for the grant of the premium for producers of sheepmeat and goatmeat.
(7) Regulation (EC) No 1454/2001 provides for the application of specific measures relating to agricultural production in the Canary Islands. Those measures entail the grant of a supplement to the premium payable to producers of light lambs and she-goats on the same conditions as those governing the grant of the premium referred to in Article 5 of Regulation (EC) No 2467/98. Those conditions provide for Spain to be authorised to pay the supplement to the premium.
(8) 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
It is hereby noted that the difference between the basic price less the impact of the coefficient provided for in Article 13(2) of Regulation (EC) No 2467/98 and the Community market price during the 2001 marketing year was EUR 57,108 per 100 kilograms.
Article 2
The coefficient provided for in Article 5(2) of Regulation (EC) No 2467/98 is hereby fixed at 15,91 kilograms.
Article 3
The premium payable in respect of the 2001 marketing year shall be as follows:
TABLE
Article 4
Pursuant to Article 1(1) of Regulation (EEC) No 1323/90, the Member States are authorised to pay a specific aid to producers of sheepmeat and goatmeat in less-favoured areas within the meaning of Council Regulation (EEC) No 3493/90(10). This aid or, should it be the case, the balance of this aid if advances have been made in case of application of Regulation (EC) No 1066/2001, shall be paid before 15 October 2002.
Article 5
Pursuant to Article 6 of Regulation (EC) No 1454/2001, the supplement to the premium for the 2001 marketing year, to be granted to producers of light lambs and goatmeat located in the Canary Islands, shall be EUR 2,481 per ewe and/or she-goat.
Article 6
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 February 2002.
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COUNCIL REGULATION (EEC) No 578/93 of 8 March 1993 establishing ceilings and Community surveillance for imports of certain products originating in Malta (1993)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas the Agreement establishing an Association between the European Economic Community and Malta (1), as supplemented by the Additional Protocol (2), by the Supplementary Protocol to the Agreement (3) and the Protocol extending the first stage of this Agreement (4) provided, in Article 2 of Annex I, for the total abolition of customs duties in respect of the products to which the Agreement applies; whereas, however, exemption from duties in respect of a number of products is subject to ceilings above which the customs duties applicable to third countries may be re-established;
Whereas, therefore, it is necessary to establish ceilings to be applied in 1993; whereas the application of ceilings requires a surveillance system for imports of these products originating in Malta;
Whereas the decision for the establishment of the said ceilings and for the installation of a surveillance system should be taken by the Community, in the execution of its international obligations, in order to enable the departments of the Commission to be kept aware of the level of imports of the said products;
Whereas, to ensure the efficiency of this surveillance system, Member States are required nevertheless to charge imports of the products in question against the ceilings as and when the products are entered with the customs authorities for free circulation; whereas such administration should provide the possibility of re-establishing customs duties once the said ceilings have been reached at Community level;
Whereas this administrative procedure requires close and particularly rapid cooperation between the Member States and the Commission and the latter must in particular be able to follow the progress of quantities charged against the ceilings and keep the Member States informed; whereas this cooperation has to be particularly close since the Commission must be able to take appropriate measures to re-establish customs tariffs if one of the ceilings is reached,
HAS ADOPTED THIS REGULATION:
Article 1
1. From 1 January to 31 December 1993 imports into the Community of the products listed in the Annex and originating in Malta shall be subject to annual ceilings and Community surveillance.
The description of the products referred to in the first subparagraph, the corresponding CN codes and the ceilings are set out in the Annex.
2. Quantities shall be charged against the ceilings as and when the products are entered with customs authorities for free circulation accompanied by a movement certificate in accordance with the rules contained in the Protocol concerning the definition of the concept of originating products and methods of administrative cooperation annexed to the Protocol laying down certain provisions relating to the Agreement establishing an association between the European Economic Community and Malta (5).
Goods may be charged against the ceilings only if the movement certificate is submitted before the date on which customs duties are re-established.
The extent to which a ceiling is used up shall be determined at Community level on the basis of the imports charged against it in the manner defined in the preceding subparagraphs.
Member States shall inform the Commission of imports charged in accordance with the above procedure at the intervals and within the time limits specified in paragraph 4.
3. As soon as the ceilings are reached, the Commission may adopt a Regulation re-establishing, until the end of the calendar year, the customs duties applicable to third countries.
4. Member States shall send the Commission not later than the 15th day of each month statements of the quantities charged during the preceding month.
Article 2
The Commission, in close cooperation with the Member States, shall take all appropriate measures for the purposes of applying this Regulation.
Article 3
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.
It shall apply as from 1 January 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 March 1993.
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COMMISSION DECISION of 8 March 1994 authorizing the Kingdom of the Netherlands to permit temporarily the marketing of rye seed not satisfying the requirements of Council Directive 66/402/EEC (94/155/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 66/402/EEC of 14 June 1966 on the marketing of cereal seed (1), as last amended by Directive 93/2/EEC (2), and in particular Article 17 thereof,
Having regard to the request submitted by the Kingdom of the Netherlands,
Whereas in the Netherlands the production of seed of rye satisfying the requirements of Directive 66/402/EEC has been insufficient in 1993 and is therefore not adequate to meet that country's needs;
Whereas it is not possible to cover this demand satisfactorily with seed from other Member States, or from third countries, satisfying all the requirements laid down in the said Directive;
Whereas the Kingdom of the Netherlands should therefore be authorized to permit for a period expiring on 31 March 1994 the marketing of seed of the abovementioned species subject to less stringent requirements;
Whereas, moreover, other Member States, which are able to supply the Netherlands with such seed not satisfying the requirements of the Directive should be authorized to permit the marketing of such seed;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Seeds and Propagating Material for Agriculture, Horticulture and Forestry,
HAS ADOPTED THIS REGULATION:
Article 1
The Kingdom of the Netherlands is authorised to permit, for a period expiring on 31 March 1994 the marketing in its territory of a maximum of 400 tonnes of seed of rye, (Secale Cereale L.) which does not satisfy the requirements laid down in Annex II to Directive 66/402/EEC with regard to the minimum germination capacity, provided that the following requirements are satisfied:
(a) the germination capacity is at least 80 % of pure seed;
(b) the official label bears the endorsement 'minimum germination capacity 80 %'.
Article 2
The other Member States are hereby authorised to permit, subject to the conditions laid down in Article 1, the marketing in their territory of a maximum of 400 tonnes of rye seed. The official label shall bear the endorsement referred to in
Article 1
(b).
Article 3
Member States shall notify the Commission before 31 May 1994 of the quantities of seed marketed in their territory pursuant to this Decision. The Commission shall inform the other Member States thereof.
Article 4
This Decision is addressed to the Member States.
Done at Brussels, 8 March 1994.
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COMMISSION REGULATION (EEC) No 2384/91 of 31 July 1991 on the transitional measures applicable to the wine-growing sector in Portugal during the 1991/92 wine year
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 Article 257 (1) thereof,
Whereas, pursuant to the Act of Accession, the organization of the market in wine is to apply in Portugal from the beginning of the second stage of accession; whereas for administrative reasons it has not as yet been possible to determine the wine-growing areas of Portugal and the oenological practices permitted under Title II of Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (1), as last amended by Regulation (EEC) No 1734/91 (2), and the varieties of vines authorized for the production of table wines should be determined with due regard to the special features of wine-growing in Portugal and the climatic conditions of the country in order to draw up rules which will resemble those to apply there on a definitive basis;
Whereas, in order to ensure a smooth transition from the old arrangements to the Community scheme and to ensure balance on the Portuguese market, there should be a specific distillation measure for the current year, which, while simplifying market management measures for the grower, will have an impact on improving market conditions comparable with the application of normal instruments and at equivalent cost; whereas the maximum quantity which it is planned to distil under that measure could be adjusted depending on the quantities actually available on the Portuguese market; whereas, furthermore, in order gradually to introduce the qualitative measures in force in the Community, particularly distillation pursuant to Article 35 of Regulation (EEC) No 822/87, pursuant to Council Regulation (EEC) No 2046/89 of 19 June 1989 laying down general rules for distillation operations involving wine and the by-products of wine-making (3), as far as it applies, procedures adapted to existing practices in Portugal should be introduced;
Whereas the guide prices for the 1991/92 wine year have been fixed for Portugal at the same level as for the Community of Ten and so the applicable prices and aids should also be aligned;
Whereas, in order to permit the definition of products which may use bottles of the 'Bocksbeutel' or 'Cantil' type in Portugal the deadline laid down for supplementing Annex V to Commission Regulation (EEC) No 3201/90 of 16 October 1990 laying down detailed rules for the description and presentation of wines and grape musts (4), should be extended by one year;
Whereas the derogations concerning 'vinho verde' should be extended until 1 September 1992;
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
Until 31 August 1992 the Community rules on the wine-growing sector shall apply to Portugal subject to the specific provisions of this Regulation.
Article 2
1. The rules governing oenological practices and processes laid down in Title II of Regulation (EEC) No 822/87 shall apply to Portugal during the 1991/92 wine year subject to the following conditions:
(a) increases in alcoholic strength shall be limited to 2 % vol. Products eligible under this measure shall have a natural alcoholic strength by volume of at least 7,5 % vol, before enrichment and total alcoholic strength by volume of not more than 13 % after enrichment.
However, products upstream of table wine originating in the 'Vinho verdi' region must have an alcoholic strength by volume of at least 7 % before enrichment.
The addition of concentrated grape must or rectified concentrated grape must shall not have the effect of increasing the initial volume of fresh crushed grapes, grape must, grape must in fermentation or new wine still in fermentation by more than 6,5 %;
(b) fresh grapes, grape must, grape must in fermentation, new wine still in fermentation and wine may be the subject of acidification or deacidification.
2. The vine varieties which may be used to produce table wine shall be those traditionally cultivated in Portugal.
3. The aids for the use of concentrated grape musts and rectified concentrated grape musts referred to in Article 45 (1) of Regulation (EEC) No 822/87 shall be as set out in Annex I.
Article 3
1. The price system and rules governing intervention and other measures to improve market conditions laid down in Title III of Regulation (EEC) No 822/87 shall apply in Portugal during the 1991/92 wine year with the exception of Articles 28, 29, 32, 33, 34, 36, 38 to 42 and 46 thereof and subject to the following implementing provisions:
(a) compulsory distillation pursuant to Article 35 of Regulation (EEC) No 822/87 shall apply to producers who wish to benefit from distillation under paragraph 2 of this Article.
However, the following shall not be obliged to deliver the by-products of wine-making:
- producers who have undertaken vinification, or any other grape processing, involving a quantity not exceeding 40 hectolitres,
- producers who do not process their grapes on cooperative premises and whose delivery obligation does not exceed 5 hectolitres.
The quantities of products exempted shall be entered in the registers kept in accordance with Article 71 (2) of Regulation (EEC) No 822/87 and withdrawn before the end of the wine year.
Producers who are not under an obligation to deliver the by-products of wine-making may deliver such products and shall then qualify under the measures provided for in Article 35 of Regulation (EEC) No 822/87 subject to the implementing rules laid down in this Regulation;
(b) the quantity of alcohol contained in the by-products of wine-making referred to in Article 35 (2) delivered for distillation shall be at least:
- 8 % by volume of the alcohol contained in the wine if it has been obtained by direct vinification of grapes,
- 4 % by volume of the alcohol contained in the wine if it has been obtained by vinification of grape must, grape must in fermentation or new wine still in fermentation.
The standard minimum natural alcoholic strength by volume to be used as the basis for assessment of the volume of alcohol to be delivered for distillation shall be 9 %.
The standard natural alcoholic strength by volume to be used to assess the quantity of alcohol in the wine shall be 9 %;
(c) Articles 25, 26 and 27 of Regulation (EEC) No 2046/89 shall not apply.
2. A distillation operation reserved for producers of table wine in Portugal and financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) is hereby initiated.
This operation shall be governed by Regulation (EEC) No 2046/89, with the exception of Articles 11 to 19, 25, 26 and 27 thereof, and the following provisions:
(a) the total quantity of table wine which may be distilled shall not exceed 1,3 million hectolitres;
(b) the contracts and declarations referred to in Articles 4 (1) and 5 (1) of Regulation (EEC) No 2046/89 shall be submitted to the intervention agency for approval no later than 31 October 1992.
These contracts shall relate to not less than 10 hl and shall not exceed 25 hl/ha.
Approval of the contracts shall be authorized as from the opening of this distillation operation subject to the operation provided for in the following subparagraph.
In the event of approval, the intervention agency shall explicitly draw the attention of the contracting parties to the conditions laid down in the regulations on payment of the aid. The competent authorities shall inform the Commission of the quantities of wine covered by contracts and declarations approved by them. The Commission shall determine the percentage of the quantity entered in contracts which may actually be delivered for distillation so that the actual quantity to be distilled does not exceed the limit laid down in (a).
However, if the quantity resulting from the application of that percentage is less than 10 hectolitres, the quantity which may be delivered shall be 10 hectolitres.
No aid shall be paid in respect of wine delivered for distillation in excess of the quantities allowed each producer;
(c) contracts and declarations shall state at least:
- the quantity, colour and actual alcoholic strength of the table wine to be distilled,
- the name and address of the producer,
- the place where the wine is stored,
- the name of the distiller or the name of the distillery,
- the address of the distillery.
3. The buying-in prices of the products and wines delivered for distillation as referred to in paragraphs 1 and 2 alcohol and:
- the aid to distillers,
- the buying-in prices of alcoholic obtained from distillation as referred to in paragraph 1 and delivered to the intervention agency,
- the contribution of the European Agricultural Guidance and Guarantee Fund (EAGGF) to the taking over of that alcohol,
for those products shall be as listed in Annexes II and III.
No later than 31 October 1992 the distiller shall deliver to the intervention agency the product of distillation as referred to in paragraph 1, which must have an alcoholic strength of at least 92 % vol.
No later than three months after delivery of the alcohol, the intervention agency shall pay the distiller the price laid down for the raw alcohol. During the two months following the latest date for delivery for distillation as referred to in Article 35 of Regulation (EEC) No 822/87 in respect of the 1991/92 wine year, the intervention agency shall pay the distiller a supplement of ECU 0,11 per % vol and per hectolitre of neutral alcohol delivered. The supplement shall be paid for a quantity of neutral alcohol not exceeding 25 % of the total quantity delivered even if the percentage of neutral alcohol exceeds 25 %.
4. The distiller shall pay the minimum buying-in price to the producer within three months of the date on which the wines and by-products of wine-making entered the distillery.
No later than 31 October 1992, the distiller shall provide the intervention agency with proof of distillation and, where appropriate, proof of payment of the minimum price.
If the proof of payment of the price of the wine shows that the deadline laid down in the first subparagraph has not been met but that the over-run does not exceed one month, the aid payable to the distiller shall be reduced by 1 % for each day of over-run for up to one month. If the over-run exceeds one month, no further aid shall be payable.
If it is found that the distiller did not pay the buying-in price to the producer, the intervention agency shall pay the producer an amount equal to the aid no later than 31 December 1992.
5. The advance referred to in Article 8 of Regulation (EEC) No 2046/89 shall be paid within three months of presentation of proof of lodging of the security.
The security shall be released if the distiller provides proof of distillation and proof of payment of the minimum price by 31 October 1992 at the latest.
If any of the proof is not provided within the time limits laid down, but is provided within two months, the intervention agency shall withhold 0,5 % of the security for every day late. Over two months, the security shall be forfeit.
6. Distillation may not take place after 31 July 1992.
Not later than the 10th day of each month, distillers shall send the intervention agency a statement of the quantities of wine distilled during the previous month, broken down by the categories listed in the first subparagraph of Article 3 (1) of Regulation (EEC) No 2046/89.
At the same time as it provides the information referred to in Article 20 of Regulation (EEC) No 2046/89, Portugal shall notify the Commission of the quantities of wine distilled broken down by colour.
No later than 31 December 1992, Portugal shall notify cases where the distiller has not complied with his obligations and the measures taken as a result.
7. The amounts of the reduction referred to in Article 44 of Regulation (EEC) No 822/87 in the buying-in price of the wine delivered and in the aid to the distiller for distillation as referred to in Article 3 (2) of this Regulation shall be as set out in Annex IV.
Article 4
Without prejudice to Article 341 of the Act of Accession, 'vinho verde' may:
- be marketed with a total alcoholic strength by volume of not less than 8,5 % vol in the case of white quality wines psr which have not been enriched,
- have a total sulphur dioxide content of not more than 300 mg/l.
Article 5
Regulation (EEC) No 3201/90 is hereby amended as follows:
In the second subparagraph of Article 20 (2) (b) (i), '31 August 1991' is replaced by '31 October 1991.'
Article 6
This Regulation shall enter into force on 1 September 1991. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 July 1991.
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REGULATION (EC) No 662/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 13 July 2009
establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non-contractual obligations
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 61(c), 65 and 67(5) thereof,
Having regard to the proposal from the Commission,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (1),
Whereas:
(1)
Title IV of Part Three of the Treaty provides the legal basis for the adoption of Community legislation in the field of judicial cooperation in civil matters.
(2)
Judicial cooperation in civil matters between Member States and third countries has traditionally been governed by agreements between Member States and third countries. Such agreements, of which there is a large number, often reflect special ties between a Member State and a third country and are intended to provide an adequate legal framework to meet specific needs of the parties concerned.
(3)
Article 307 of the Treaty requires Member States to take all appropriate steps to eliminate any incompatibilities between the Community acquis and international agreements concluded between Member States and third countries. This may involve the need for the re-negotiation of such agreements.
(4)
In order to provide an adequate legal framework to meet specific needs of a given Member State in its relations with a third country, there may also be a manifest need for the conclusion of new agreements with third countries relating to areas of civil justice that come within the purview of Title IV of Part Three of the Treaty.
(5)
In its Opinion 1/03 of 7 February 2006 relating to the conclusion of the new Lugano Convention, the Court of Justice of the European Communities confirmed that the Community has acquired exclusive competence to conclude an international agreement like the Lugano Convention with third countries on matters affecting the rules laid down in Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2) (Brussels I).
(6)
It is for the Community to conclude, pursuant to Article 300 of the Treaty, agreements between the Community and a third country on matters falling within the exclusive competence of the Community.
(7)
Article 10 of the Treaty requires Member States to facilitate the achievement of the Community’s tasks and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty. This duty of loyal cooperation is of general application and does not depend on whether or not the Community competence is exclusive.
(8)
With regard to agreements with third countries on specific civil justice issues falling within the exclusive competence of the Community, a coherent and transparent procedure should be established to authorise a Member State to amend an existing agreement or to negotiate and conclude a new agreement, in particular where the Community itself has not indicated its intention to exercise its external competence to conclude an agreement by way of an already existing mandate of negotiation or an envisaged mandate of negotiation. This procedure should be without prejudice to the exclusive competence of the Community and the provisions of Articles 300 and 307 of the Treaty. It should be regarded as an exceptional measure and should be limited in scope and in time.
(9)
This Regulation should not apply if the Community has already concluded an agreement with the third country concerned on the same subject matter. Two agreements should be regarded as concerning the same subject matter only if, and to the extent that, they regulate in substance the same specific legal issues. Provisions simply stating a general intention to cooperate on such issues should not be regarded as concerning the same subject matter.
(10)
Exceptionally, certain regional agreements between a few Member States and a few third countries, for example two or three, intended to address local situations and not open for accession to other States should also be covered by this Regulation.
(11)
In order to ensure that an agreement envisaged by a Member State does not render Community law ineffective and does not undermine the proper functioning of the system established by that law, or undermine the Community’s external relations policy as decided by the Community, the Member State concerned should be required to notify the Commission of its intentions with a view to obtaining an authorisation to open or continue formal negotiations on an agreement as well as to conclude an agreement. Such notification should be given by letter or by electronic means. It should contain all relevant information and documentation enabling the Commission to assess the expected impact on Community law of the outcome of the negotiations.
(12)
It should be assessed whether there is sufficient Community interest in concluding a bilateral agreement between the Community and the third country concerned or, where appropriate, in replacing an existing bilateral agreement between a Member State and a third country with a Community agreement. To that end, all Member States should be informed of any notification received by the Commission concerning an agreement envisaged by a Member State in order to allow them to demonstrate their interest in joining the initiative of the notifying Member State. If, from this exchange of information, a sufficient Community interest were to emerge, the Commission should consider proposing a negotiating mandate with a view to the conclusion of an agreement between the Community and the third country concerned.
(13)
If the Commission requests additional information from a Member State in connection with its assessment as to whether that Member State should be authorised to open negotiations with a third country, such a request should not affect the time limits within which the Commission is to give a reasoned decision on the application of that Member State.
(14)
When authorising the opening of formal negotiations, the Commission should be able, if necessary, to propose negotiating guidelines or request the inclusion of particular clauses in the envisaged agreement. The Commission should be kept fully informed throughout the different stages of the negotiations as far as matters falling within the scope of this Regulation are concerned and should be allowed to participate as an observer in the negotiations as regards those matters.
(15)
When notifying the Commission of their intention to enter into negotiations with a third country, Member States should only be required to inform the Commission of elements which are of relevance for the assessment to be made by the Commission. The authorisation by the Commission and any possible negotiating guidelines or, as the case may be, the refusal by the Commission should concern only matters falling within the scope of this Regulation.
(16)
All Member States should be informed of any notification to the Commission concerning envisaged or negotiated agreements and of any reasoned decision by the Commission under this Regulation. Such information should however fully comply with possible confidentiality requirements.
(17)
The European Parliament, the Council and the Commission should ensure that any information identified as confidential is treated in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (3).
(18)
Where the Commission, on the basis of its assessment, intends not to authorise the opening of formal negotiations or the conclusion of a negotiated agreement, it should, before giving its reasoned decision, give an opinion to the Member State concerned. In the case of refusal to authorise the conclusion of a negotiated agreement the opinion should also be submitted to the European Parliament and to the Council.
(19)
In order to ensure that the negotiated agreement does not constitute an obstacle to the implementation of the Community’s external policy on judicial cooperation in civil and commercial matters, the agreement should provide either for its full or partial denunciation in the event of the conclusion of a subsequent agreement between the Community or the Community and its Member States, on the one hand, and the same third country, on the other hand, on the same subject matter, or for a direct replacement of the relevant provisions of the agreement by the provisions of such subsequent agreement.
(20)
Provision should be made for transitional measures to cover situations where, at the time of the entry into force of this Regulation, a Member State has already started the process of negotiating an agreement with a third country, or has completed the negotiations but has not yet expressed its consent to be bound by the agreement.
(21)
In order to ensure that sufficient experience has been gained concerning the application of this Regulation, the Commission should submit a report on such application no earlier than eight years after the adoption of this Regulation. In that report, the Commission, exercising its prerogatives, should confirm the temporary nature of this Regulation or examine whether this Regulation should be replaced by a new Regulation covering the same subject matter or including also particular matters falling within the exclusive competence of the Community and governed by other Community instruments, as referred to in recital 5.
(22)
If the report submitted by the Commission confirms the temporary nature of this Regulation, Member States should still be able, after the submission of the report, to notify the Commission of ongoing or already announced negotiations with a view to obtaining an authorisation to open formal negotiations.
(23)
In accordance with the principle of proportionality, as set out in Article 5 of the Treaty, this Regulation does not go beyond what is necessary in order to achieve its objective.
(24)
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom and Ireland have given notice of their wish to take part in the adoption and application of this Regulation.
(25)
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application,
HAVE ADOPTED THIS REGULATION:
Article 1
Subject matter and scope
1. This Regulation establishes a procedure to authorise a Member State to amend an existing agreement or to negotiate and conclude a new agreement with a third country, subject to the conditions laid down in this Regulation.
This procedure is without prejudice to the respective competencies of the Community and of the Member States.
2. This Regulation shall apply to agreements concerning particular matters falling, entirely or partly, within the scope of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (4) and Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (5).
3. This Regulation shall not apply if the Community has already concluded an agreement with the third country concerned on the same subject matter.
Article 2
Definitions
1. For the purposes of this Regulation, the term ‘agreement’ shall mean:
(a)
a bilateral agreement between a Member State and a third country;
(b)
a regional agreement between a limited number of Member States and of third countries neighbouring Member States which is intended to address local situations and which is not open for accession to other States.
2. In the context of regional agreements as referred to in paragraph 1(b), any reference in this Regulation to a Member State or a third country shall be read as referring to the Member States or the third countries concerned, respectively.
Article 3
Notification to the Commission
1. Where a Member State intends to enter into negotiations in order to amend an existing agreement or to conclude a new agreement falling within the scope of this Regulation, it shall notify the Commission in writing of its intention at the earliest possible moment before the envisaged opening of formal negotiations.
2. The notification shall include, as appropriate, a copy of the existing agreement, the draft agreement or the draft proposal, and any other relevant documentation. The Member State shall describe the subject matter of the negotiations and specify the issues which are to be addressed in the envisaged agreement, or the provisions of the existing agreement which are to be amended. The Member State may provide any other additional information.
Article 4
Assessment by the Commission
1. Upon receipt of the notification referred to in Article 3, the Commission shall assess whether the Member State may open formal negotiations.
2. In making that assessment, the Commission shall first check whether any relevant negotiating mandate with a view to concluding a Community agreement with the third country concerned is specifically envisaged within the next 24 months. If this is not the case, the Commission shall assess whether all of the following conditions are met:
(a)
the Member State concerned has provided information showing that it has a specific interest in concluding the agreement due to economic, geographic, cultural, historical, social or political ties between the Member State and the third country concerned;
(b)
on the basis of the information provided by the Member State, the envisaged agreement appears not to render Community law ineffective and not to undermine the proper functioning of the system established by that law; and
(c)
the envisaged agreement would not undermine the object and purpose of the Community’s external relations policy as decided by the Community.
3. If the information provided by the Member State is not sufficient for the purposes of the assessment, the Commission may request additional information.
Article 5
Authorisation to open formal negotiations
1. If the envisaged agreement meets the conditions set out in Article 4(2), the Commission shall, within 90 days of receipt of the notification referred to in Article 3, give a reasoned decision on the application of the Member State authorising it to open formal negotiations on that agreement.
If necessary, the Commission may propose negotiating guidelines and may request the inclusion of particular clauses in the envisaged agreement.
2. The envisaged agreement shall contain a clause providing for either:
(a)
full or partial denunciation of the agreement in the event of the conclusion of a subsequent agreement between the Community or the Community and its Member States, on the one hand, and the same third country, on the other hand, on the same subject matter; or
(b)
direct replacement of the relevant provisions of the agreement by the provisions of a subsequent agreement concluded between the Community or the Community and its Member States, on the one hand, and the same third country, on the other hand, on the same subject matter.
The clause referred to in point (a) of the first subparagraph should be worded along the following lines: ‘(name(s) of the Member State(s)) shall denounce this Agreement, in part or in full, if and when the European Community or the European Community and its Member States conclude an Agreement with (name(s) of the third country(ies)) on the same matters of civil justice as those governed by this Agreement’.
The clause referred to in point (b) of the first subparagraph should be worded along the following lines: ‘This Agreement or certain provisions of this Agreement shall cease to be applicable on the day when an Agreement between the European Community or the European Community and its Member States, on the one hand, and (name(s) of the third country(ies)), on the other hand, has entered into force, in respect of the matters governed by the latter Agreement’.
Article 6
Refusal to authorise the opening of formal negotiations
1. If, on the basis of its assessment under Article 4, the Commission intends not to authorise the opening of formal negotiations on the envisaged agreement, it shall give an opinion to the Member State concerned within 90 days of receipt of the notification referred to in Article 3.
2. Within 30 days of receipt of the opinion of the Commission, the Member State concerned may request the Commission to enter into discussions with it with a view to finding a solution.
3. If the Member State concerned does not request the Commission to enter into discussions with it within the time limit provided for in paragraph 2, the Commission shall give a reasoned decision on the application of the Member State within 130 days of receipt of the notification referred to in Article 3.
4. In the event of the discussions referred to in paragraph 2, the Commission shall give a reasoned decision on the application of the Member State within 30 days of the closure of the discussions.
Article 7
Participation of the Commission in the negotiations
The Commission may participate as an observer in the negotiations between the Member State and the third country as far as matters falling within the scope of this Regulation are concerned. If the Commission does not participate as an observer, it shall be kept informed of the progress and results throughout the different stages of the negotiations.
Article 8
Authorisation to conclude the agreement
1. Before signing a negotiated agreement, the Member State concerned shall notify the outcome of the negotiations to the Commission and shall transmit to it the text of the agreement.
2. Upon receipt of that notification the Commission shall assess whether the negotiated agreement:
(a)
meets the condition set out in Article 4(2)(b);
(b)
meets the condition set out in Article 4(2)(c), in so far as there are new and exceptional circumstances in relation to that condition; and
(c)
fulfils the requirement under Article 5(2).
3. If the negotiated agreement fulfils the conditions and requirements referred to in paragraph 2, the Commission shall, within 90 days of receipt of the notification referred to in paragraph 1, give a reasoned decision on the application of the Member State authorising it to conclude that agreement.
Article 9
Refusal to authorise the conclusion of the agreement
1. If, on the basis of its assessment under Article 8(2), the Commission intends not to authorise the conclusion of the negotiated agreement, it shall give an opinion to the Member State concerned, as well as to the European Parliament and to the Council, within 90 days of receipt of the notification referred to in Article 8(1).
2. Within 30 days of receipt of the opinion of the Commission, the Member State concerned may request the Commission to enter into discussions with it with a view to finding a solution.
3. If the Member State concerned does not request the Commission to enter into discussions with it within the time limit provided for in paragraph 2, the Commission shall give a reasoned decision on the application of the Member State within 130 days of receipt of the notification referred to in Article 8(1).
4. In the event of the discussions referred to in paragraph 2, the Commission shall give a reasoned decision on the application of the Member State within 30 days of the closure of the discussions.
5. The Commission shall notify its decision to the European Parliament and to the Council within 30 days of the decision.
Article 10
Confidentiality
When providing information to the Commission under Articles 3, 4(3) and 8, the Member State may indicate whether any of the information is to be regarded as confidential and whether the information provided can be shared with other Member States.
Article 11
Provision of information to the Member States
The Commission shall send to the Member States the notifications received under Articles 3 and 8 and, if necessary, the accompanying documents, as well as all its reasoned decisions under Articles 5, 6, 8 and 9, subject to the confidentiality requirements.
Article 12
Transitional provisions
1. Where, at the time of entry into force of this Regulation, a Member State has already started the process of negotiating an agreement with a third country, Articles 3 to 11 shall apply.
Where the stage of the negotiations so permits, the Commission may propose negotiating guidelines or request the inclusion of particular clauses, as referred to in the second subparagraph of Article 5(1) and Article 5(2) respectively.
2. Where, at the time of entry into force of this Regulation, a Member State has already completed the negotiations but has not yet concluded the agreement, Article 3, Article 8(2) to (4) and Article 9 shall apply.
Article 13
Review
1. No earlier than 13 July 2017 the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Regulation.
2. That report shall either:
(a)
confirm that it is appropriate for this Regulation to expire on the date determined in accordance with Article 14(1); or
(b)
recommend that this Regulation be replaced as of that date by a new Regulation.
3. If the report recommends a replacement of this Regulation as referred to in paragraph 2(b), it shall be accompanied by an appropriate legislative proposal.
Article 14
Expiry
1. This Regulation shall expire three years after the submission by the Commission of the report referred to in Article 13.
The period of three years referred to in the first subparagraph shall start to run on the first day of the month following the submission of the report to either the European Parliament or the Council, whichever is the later.
2. Notwithstanding the expiry of this Regulation on the date determined in accordance with paragraph 1, all negotiations ongoing on that date which have been entered into by a Member State under this Regulation shall be allowed to continue and to be completed in accordance with this Regulation.
Article 15
Entry into force
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 the Member States in accordance with the Treaty establishing the European Community.
Done at Brussels, 13 July 2009.
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COMMISSION REGULATION (EEC) No 3460/85
of 6 December 1985
laying down detailed rules for the granting of a compensatory allowance for Mediterranean sardines
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 171 and 358 thereof,
Having regard to Council Regulation (EEC) No 3117/85 of 4 November 1985 laying down general rules for the granting of compensatory allowances for sardines (1), and in particular Article 4 thereof,
Whereas Article 3 of Regulation (EEC) No 3117/85 sets out the conditions for the granting of compensatory allowances, as regards eligible products and forms of processing, the limit of 43 000 tonnes and the beneficiaries of the scheme, and fixes the method of calculating the said allowance;
Whereas this scheme must be applied to those categories of sardines which are likely to be marketed most easily after processing;
Whereas the health and technical provisions laid down by the national authorities ensure that the products in question have been subjected fully and definitively to one of the processes referred to in Article 3 (1) of Regulation (EEC) No 3117/85; whereas compliance of the processed products in question with the said provisions should be subject to verification;
Whereas the responsibility for deciding the quantities in respect of which each producer established on its territory is eligible for the allowance should be left to the Member States;
Whereas, in order to comply with the Community quantitative limit of 43 000 tonnes provided for this scheme, each Member State should inform the Commission at the beginning of the marketing year of overall quantities granted; whereas, where appropriate, it is necessary to provide for methods of reducing the overall quantities if the maximum quantitative limit is exceeded;
Whereas to ensure that payment of the said allowance for those quantities in respect of which entitlement is established takes place within a reasonable period, the maximum period for processing and the lodging by the processor of the application for payment of the allowance should be fixed at six months after the delivery date;
Whereas, to speed up payment of the allowance, provision should be made for the producer or producers' organization to issue a written attestation certifying that each quantity sold forms part of the quantity eligible for the allowance as determined for the producer or producers' organization concerned; whereas, moreover, for the purposes of checks on attestations issued, provision should made for Member States to exchange the necessary information relating to such attestations;
Whereas, in order to ensure constant control, those qualifying for the allowance must keep the inspection authority informed of their processing activities at all times;
Whereas, pursuant to Article 2 (3) of the Treaty of Accession, the institutions of the Community may adopt before accession the measures referred to in Articles 171 and 358 of the Act;
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
This Regulation lays down detailed rules for the granting of the compensatory allowance, hereinafter referred to as the ‘allowance’, referred to in Article 3 of Regulation (EEC) No 3117/85 in respect of Mediterranean sardines.
Article 2
1. The allowance shall be granted only in respect of sardines which are sold to a processor for the purposes of full and definitive processing under the conditions laid down by Article 3 of Regulation (EEC) No 3117/85, in accordance with the health and technical provisions relating to products intended for human consumption in force in the Member State where the processor is established.
2. For the purposes of paragraph 1, processor means any natural or legal person who:
-
processes Mediterranean sardines by one of the methods provided for in Article 3 of Regulation (EEC) No 3117/85,
-
satisfies the conditions laid down in the national legislation of the Member State concerned for processing by one of the said methods.
Article 3
1. The quantity eligible for the allowance shall be determined annually for each marketing year and for each producer or producers' organization at its request, provisionally by the Member State where the producer or producers' organization is established, on the basis of the average annual quantity which the producer or the producers' organization sold to the Community processing industry for the purposes of processing operations eligible pursuant to this Regulation, during the reference period 1982 to 1984.
2. Member States shall notify the Commission, one month before the beginning of each marketing year, of the overall quantity eligible for the allowance as provisionally determined for the coming marketing year, broken down by category of product and processing operation. Furthermore, the Member States concerned shall forthwith inform the Commission of any change in this quantity.
Where the sum of the quantities provisionally determined by each of the Member States exceeds the ceiling provided for in the second indent of Article 3 (1) of Regulation (EEC) No 3117/85, the Comission, after consulting the Member States concerned, shall decide the overall quantities eligible for the allowance or each Member State, according to the criteria set out in paragraph 1.
The Commission shall take a decision on the quantities concerned within a period of 30 days following notification thereof, failing which the quantities determined shall be considered to have been accepted.
3. Final allocation of the quantities referred to in paragraph 1 shall take place after the Commission has taken a decision on the overall quantity determined by each Member State, in accordance with paragraph 2.
Article 4
1. The producer or producers' organization referred to in Article 3 (1) shall issue to the processor, at the time of each sale, a written attestation which shall include the name of the vendor, the name of the purchaser, the quantity and the price of products covered by the sale, and shall state that this quantity is part of the eligible quantity allocated to the producer or producers' organization in accordance with Article 3 (1).
The producer or producers' organization in question shall forward a copy of this attestation without delay to the Member State which fixed the eligible quantity.
2. Before the allowance is paid, the Member State in which the producer or producers' organization selling the product is established shall check that the aggregate of the quantities sold under each attestation does not exceed the eligible quantity allocated to the producer or producers' organization in question for the marketing year concerned.
3. Where the product is processed in a Member State other than that in which the vendor of the product is established, the Member State in which processing takes place shall forward each month to the Member State where the vendor of the product is established, with a view to the check referred to in paragraph 2, a list of the attestations which it received in the previous month in accordance with Article 5. The check shall be made immediately on receipt of the list in question and the outcome thereof shall be notified without delay to the Member State which had the check carried out.
4. In cases where the Member State carrying out the check referred to in paragraph 2 is unable to reach a final decision on a given attestation, this Member State shall request the producer or producers' organization which issued the attestation in question to justify the latter within a period not exceeding one month.
Article 5
1. On completion of processing operations and not later than six months after the date of actual delivery of the products, the processor concerned may lodge an application for payment of the allowance.
2. The allowance shall be paid to the processor by the Member State where processing has taken place, upon submission of:
-
the sales invoice or receipt for the product, which must state at least the names and addresses of the parties concerned and the quantity, the purchase price actually paid to the producer or to the producers' organization and the delivery date for each category of product purchased;
-
proof of payment for the goods at the price referred to in the first indent;
-
the attestation referred to in Article 4;
in respect of not more than the quantities eligible for the allowance as determined in accordance with Article 3 and after checking attestations pursuant to Article 4 (2).
3. Where the check referred to in Article 4 (2) indicates that the quantities sold by a producer or producers' organization exceed the eligible quantity allocated to the producer or producers' organization for the marketing year concerned or where the producers' organization fails to provide a satisfactory reply within the period specified in Article 4 (4), the allowance shall not be paid.
Article 6
1. The Member States concerned shall set up a control system to verify the eligibility of products in respect of which the allowance has been applied for and compliance with the provisions of this Regulation.
2. The detailed rules for the operation of the control system shall be drawn up by the Member State and must include at least the following requirements:
-
submission by the processor of the supporting documents used for determining his entitlement to payment of the allowance,
-
the keeping, by the producer or the producers' organization, of records of sales made under the terms of this Regulaton specificy, for each sales operation, the date, purchaser, quantity and quality of the product sold,
-
for the purposes of verifying full and definitive processing, the keeping of daily stock accounts by the processor showing, in particular:
-
the quantity of product purchased, by species and category, the date of acceptance and the number of the invoice or receipt,
-
the dates when processing began and ended,
-
the quantity processed, by species, category and type of processing, and the place of processing,
-
direct inspections in the processing industries concerned,
-
definition of the particulars to be included in the application for the allowance referred to in Article 5.
Article 7
1. Where an infringement of the allowance scheme, with limited implications, has been committed by a beneficiary of the allowance and it is shown by the same beneficiary, to the satisfaction of the Member State concerned, that such infringement was committed without intention to defraud or as the result of grave negligence, the Member State shall withhold an amount equal to 10 % of the Community withdrawal price for Atlantic sardines applicable to the quantities which are the subject of the infringement and which were intended to qualify for the allowance or in respect of which the allowance has been granted.
2. Each month, Member States shall notify the Commission of those cases where they have applied paragraph 1.
Article 8
The quantities sold pursuant to this Regulation shall be specifically entered in the last column of the register, a specimen of which is given in the Annex to Commission Regulation (EEC) No 3138/82 (2).
Article 9
1. The Member States concerned shall notify the Commission, not later than two months after the date of entry into force of this Regulation, of the control measures introduced pursuant to Article 6 (1).
2. The Member States shall also notify the Commission, every month, of the quantities processed which qualified for the allowance during the previous month, broken down by commercial category and type of processing carried out, and of the expenditure relating to the grant of the allowance in question.
Article 10
The conversion rate applicable to the allowance shall be the representative rate in force on the delivery date of the product.
Article 11
This Regulation shall enter into force on 1 March 1986 subject to the entry into force of the Treaty of Accession of Spain and Portugal.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 6 December 1985.
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Commission Regulation (EC) No 1559/2002
of 30 August 2002
determining the world market price for unginned cotton
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Protocol 4 on cotton, annexed to the Act of Accession of Greece, as last amended by Council Regulation (EC) No 1050/2001(1),
Having regard to Council Regulation (EC) No 1051/2001 of 22 May 2001 on production aid for cotton(2), and in particular Article 4 thereof,
Whereas:
(1) In accordance with Article 4 of Regulation (EC) No 1051/2001, a world market price for unginned cotton is to be determined periodically from the price for ginned cotton recorded on the world market and by reference to the historical relationship between the price recorded for ginned cotton and that calculated for unginned cotton. That historical relationship has been established in Article 2(2) of Commission Regulation (EC) No 1591/2001 of 2 August 2001(3), as amended by Regulation (EC) No 1486/2002(4). Where the world market price cannot be determined in this way, it is to be based on the most recent price determined.
(2) In accordance with Article 5 of Regulation (EC) No 1051/2001, the world market price for unginned cotton is to be determined in respect of a product of specific characteristics and by reference to the most favourable offers and quotations on the world market among those considered representative of the real market trend. To that end, an average is to be calculated of offers and quotations recorded on one or more European exchanges for a product delivered cif to a port in the Community and coming from the various supplier countries considered the most representative in terms of international trade. However, there is provision for adjusting the criteria for determining the world market price for ginned cotton to reflect differences justified by the quality of the product delivered and the offers and quotations concerned. Those adjustments are specified in Article 3(2) of Regulation (EC) No 1591/2001.
(3) The application of the above criteria gives the world market price for unginned cotton determined hereinafter,
HAS ADOPTED THIS REGULATION:
Article 1
The world price for unginned cotton as referred to in Article 4 of Regulation (EC) No 1051/2001 is hereby determined as equalling EUR 24,389/100 kg.
Article 2
This Regulation shall enter into force on 31 August 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 August 2002.
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COMMISSION REGULATION (EC) No 2676/94 of 3 November 1994 amending Regulation (EEC) No 2698/93 laying down detailed rules for the application in the pigmeat sector of the arrangements provided for in Interim Agreements between the European Economic Community and the Republic of Poland, the Republic of Hungary and the former Czech and Slovak Federal Republic
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3491/93 of 13 December 1993 on certain procedures for applying the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part (1), and in particular Article 1 thereof,
Whereas the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Hungary, of the other part (2), was signed in Brussels on 16 December 1991;
Whereas, as a result of an Agreement in the form of an exchange of letters between the European Community and the Republic of Hungary (3) signed on 26 October 1994, Annexes VIIIa, IXb and Xb to the Europe Agreement were amended; whereas, therefore, Annex I.A.I, group 2, to Commission Regulation (EEC) No 2698/93 (4) should be amended;
Whereas the import licences for the quantities available for the period 1 July to 31 December 1994 have already been issued on the basis of Regulation (EEC) No 2698/93; whereas, in order to ensure a smooth transition to the new provisions and to ensure that the quantities covered by those licences, imported with effect from 1 November 1994, benefit from the increase to 60 % of the reduction in the rate of levy, provision should be made for amounts paid in excess to be refunded;
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
Part A.I to Annex I to Regulation (EEC) No 2698/93 is hereby replaced by the Annex to this Regulation.
Article 2
For products falling within groups 1, 2 and 3 referred to in Annex I.A.I and imported after 1 November 1994 covered by import licences issued in accordance with Article 2 of Regulation (EEC) No 2698/93, at a rate of reduction of the levy of 50 %, amounts paid in excess shall be refunded to the operators concerned.
Article 3
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 1 November 1994.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 November 1994.
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*****
COMMISSION REGULATION (EEC) No 1657/87
of 12 June 1987
re-establishing the levying of customs duties applicable to other footwear, falling within subheading 64.02 B, originating in the Philippines and Thailand, 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 that Regulation, suspension of customs duties shall be accorded to each of the countries or territories listed in Annex III other than those listed in column 4 of Annex I, within the framework of the preferential tariff ceiling fixed in column 9 of Annex I;
Whereas, as provided for in Article 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 other footwear, falling within subheading 64.02 B, the individual ceiling was fixed at 2 400 000 ECU; whereas, on 27 May 1987, imports of these products into the Community originating in the Philippines and Thailand reached the ceiling in question after being charged thereagainst; whereas it is appropriate to re-establish the levying of customs duties in respect of the products in question against the Philippines and Thailand,
HAS ADOPTED THIS REGULATION:
Article 1
As from 16 June 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 the Philippines and Thailand:
1.2 // // // CCT heading No // Description // // // 64.02 (NIMEXE code 64.02-60, 61, 69, 99) // Footwear with outer soles of leather or composition leather, footwear (other than footweat footwear within heading No 64.01) with outer soles of rubber or artificial plastic material: B. Other // //
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 June 1987.
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Commission Regulation (EC) No 629/2002
of 11 April 2002
concerning tenders notified in response to the invitation to tender for the export of rye issued in Regulation (EC) No 1005/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals(1), as last amended by Regulation (EC) No 1666/2000(2),
Having regard to Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals(3), as last amended by Regulation (EC) No 602/2001(4), and in particular Article 7 thereof,
Whereas:
(1) An invitation to tender for the refund for the export of rye to all third countries was opened pursuant to Commission Regulation (EC) No 1005/2001(5).
(2) Article 7 of Regulation (EC) No 1501/95 allows the Commission to decide, in accordance with the procedure laid down in Article 23 of Regulation (EEC) No 1766/92 and on the basis of the tenders notified, to make no award.
(3) On the basis of the criteria laid down in Article 1 of Regulation (EC) No 1501/95 a maximum refund should not be fixed.
(4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for cereals,
HAS ADOPTED THIS REGULATION:
Article 1
No action shall be taken on the tenders notified from 5 to 11 April 2002 in response to the invitation to tender for the refund for the export of rye issued in Regulation (EC) No 1005/2001.
Article 2
This Regulation shall enter into force on 12 April 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 April 2002.
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COMMISSION REGULATION (EEC) No 1684/89
of 14 June 1989
adopting exceptional measures for the market in beef and veal in Italy
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 571/89 (2), and in particular Article 23 thereof,
Whereas, because of the outbreak of foot-and-mouth disease in certain production regions in Italy, the transport of live bovine animals and certain fresh beef and veal products from the said regions of Italy has been temporarily prohibited pursuant to national protective measures against foot-and-mouth disease in Italy;
Whereas, in order to take account of the limitations to free circulation resulting from the situation, exceptional measures to support the market must be taken in the regions concerned;
Whereas it is therefore appropriate to fix private storage aid for certain senstitive products coming from the aforesaid regions in accordance with detailed implementing rules for the granting of private storage aid in the beef and veal sector adopted by Commission Regulation (EEC) No 1091/80 (3), as last amended by Regulation (EEC) No 3492/88 (4);
Whereas, in order to limit the dangers of infection, encouragement should be provided for the boning of meats before they are placed in storage by means of a slight increase in the aid normally granted for the storage of bone-in meat and whereas, for the same reason, the Italian authorities should be authorized to designate the places of storage;
Whereas Article 3 of Council Regulation (EEC) No 989/68 (5), as amended by Regulation (EEC) No 428/77 (6) provides that, if the market situation so requires; the period of storage may be curtailed or extended; whereas it is therefore appropriate that, in addition to the amounts of aid granted for specific storage period, amounts to be added or reduced in the event of that period being extended or cultailed should also be fixed;
Whereas, in order to prevent the financing of normal private storage, it appears desirable to fix minimum quantities;
Whereas, foresable market conditions make it necessary to provide storage periods of between three and five months; whereas, in order to improve the efficiency of the scheme be laid down enabling the applicants to benefit from advance payment of the aid subject to a security;
Whereas, in view of the exceptional circumstances in the beef market and in order to encourage operators to make use of private storage it should be provided that, for a limited period, products under a private storage contract should be able at the same time to be placed under the system laid down in Article 5 (1) of Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural products (7), as amended by Regulation (EEC) No 2026/83 (8);
Whereas provision should be made for the possibility of reducing the storage period where meat removed from storage is intended for export, whereas proof that the meat has been exported must be supplied as in the case of refunds, in accordance with Commission Regulation (EEC) No 3665/87 (9), as last amended by Regulation (EEC) No 3993/88 (10), whereas, except in cases where the stored products are put under a system requiring export in their totality, it is appropriate to provide that, subject to certain conditions, a limited quantity may be withdrawn from store without subsequent export; whereas provisions should be made for the calculation of aid and the release of security where the storer has not respected certain obligations;
Whereas Article 5 (2) of Council Regulation (EEC) No 805/68 provides that intervention measures shall be applied on the basis of the Community scale for the classification of carcases of adult bovine animals established by Council Regulation (EEC) No 1208/81 (11);
Whereas, so that the Commission may monitor closely the effect of the private storage scheme, Italy must communicate the necessary information;
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. Applications for aid for the private storage of one of the presentations of adult bovine animals defined in Article 2 may be submitted to the Italian intervention agency until 30 June 1989.
If the quantities in respect of which contracts have been applied for or the market situation make it advisable, the deadline for the submission of aplications may be changes.
2. The amounts of aid by tonne of product, bone-in are fixed in the Annex hereto for each of these presentations, pursuant to Article 6 (1) of Regulation (EEC) No 1091/80. In the case of all the bone-in meat being deboned before storage the amounts of aid set out in the Annex shall be raised by ECU 40 per tonne.
The amounts of aid shall be adjusted if the period of storage is extended or reduced. The supplements per month and deductions per day for each of the presentations referred to in Article 2 are fixed in the Annex hereto.
3. Subject to the provisions of this Regulation, the provisions of Regulation (EEC) No 1091/80 shall apply.
Article 2
1. Only products obtained from adult bovine animals reared in local health units in which foot-and-mouth disease has been detected and which have not been declared free of the disease shall qualify for private storage aid.
Products obtained from adult bovine animals rared in local health units in which no cases of food-and-mouth disease have been recorded for three months shall not qualify for this aid.
Modifications to be boundary of the infection zone shall be immediately notified by the Italian authorities to the Commission.
2. Private storage can only be granted for meat classified in accordance with the Community scale for the carcase classification as laid down in Regulation (EEC) No 1208/81 and identified in accordance with Article 4 (3) (d) and (e) of Commission Regulation (EEC) No 859/89 (2).
3. For the purposes of this Regulation:
- the carcase shall have a minimum average weight of 220 kilograms,
- the half-carcase shall have a minimum average weight of 110 kilograms,
- the hindquarter shall mean:
(a) the rear part of the half-carcase cut in a manner known as 'pistola' with a minimum of five cut ribs and a maximum of eight ribs and with minimum average weight of 55 kilograms; it is cut straight to the hip bone and then parallel to the fillet so that this is practially free from attached parts of the flank, or
(b) the rear part of the half-carcase cut in the manner known as 'straight' with a minimum of three ribs and a maximum of five ribs and with a minimum average weight of 55 kilograms.
- the forequarter shall mean:
(a) the front part of the half-carcase cut, in the manner known as 'pistola' with a minimum of five ribs and a maximum of eight ribs and with a minimum average weight of 55 kilograms, the flank being attached to the forequarter; or
(b) the front part of the half-carcase and in a manner known as 'straight' with a minimum of eight ribs and a maximum of 10 ribs and with a minimum average weight of 55 kilograms.
4. Carcases and half-carcases shall be presented in accordance with point 2 (a) and (b) of Annex III to Regulation (EEC) No 859/89.
Article 3
1. The minimum quantity per contract shall be 15 tonnes expressed as bone-in meat.
2. The contract may only cover unboned meat of one of the presentations referred to in Article 2.
3. The Italian authorities may designate the places of storage in the light of veterinary requirements.
4. Placing in storage must be carried out within 28 days of the date of conclusion of the contract.
5. The security shall be declared forfeit if the application for a contract is withdrawn.
Article 4
1. Subject to the provisions laid down in paragraph 2, the contractor may, during the storage entry period, cut or bone all or part of the products referred to in Article 2, provided that only the quantity for which the contract has been concluded is employed and that all the meat resulting from such operations is placed in store. Intention to make use of this facility shall be notified not later than the date of placing in storage.
2. If the quantity actually stored unboned, or, if cut or boned, the quantity of unboned meat employed, is less than the quantity for which the contract was concluded and:
(a) not less than 90 % of that quantity, the amount of aid referred to in Article 1 (2) shall be reduced proportionally;
(b) less than 90 % but more or equal to 80 % of that quantity, private storage aid is paid for half of the quantity actually stored;
(c) less than 80 % of this quantity, private storage aid shall not be paid.
3. In the case of boning:
(a) if the quantity actually stored does not exceed 67 kilograms of boned meat per 100 kilograms of unboned meat employed, private storage aid shall not be payable;
(b) if the quantity actually stored exceeds 67 kilograms but is lower than 75 kilograms of boned meat per 100 kilograms of unboned meat employed, the aid referred to in Article 1 (2) shall be reduced proportionnally.
4. The large tendons, cartilages, pieces of fat and other scraps left over from cutting for boning may not be stored.
5. No aid shall be granted:
(a) for quantities stored unboned or, in case of cutting or boning, for quantities of unboned meat employed, in excess fo quantities for which the contract was concluded; and
(b) in case of boning, for quantities in excess of 75 kilograms of boned meat per 100 kilograms of unboned meat employed.
Article 5
1. The actual storage period shall be closen by the storer, but may not be less than three months nor exceed five months. If the storage period exceeds three months the aid shall be increased in accordance with Article 1 (2).
2. After two months of storage under contract, a single advance payment of the aid may be made, at the storer's request, on condition that he lodges a security equal to the advance payment plus 20 %.
The advance payment of the aid shall not exceed the amount of aid corresponding to a storage period of two months. Where quantities under contract are exported in accordance with Article 7 prior to the advance payment, the actual storage period for those quantities shall be taken into account when calculating the amount of advance payment.
The advance payment of the aid shall be converted into national currency by applying the representative rate in force on the day of conclusion of the storage contract.
Article 6
1. By way of derogation from Article 2 (4) of Regulation (EEC) No 1091/80, products to be stored under a private storage contract may be placed under the system laid down in Article 5 (1) of Regulation (EEC) No 565/80. Italy may require that the two operations referred to in the first subparagraph shall commence simultaneously.
2. For the purposes of paragraph 1, where a private storage contract is concluded for a quantity which consists of several lots which are placed in storage on different dates, each of the said lots may be the subject of a separate payment declaration. A payment declaration, as referred to in Article 25 of Regulation (EEC) No 3665/87 shall be submitted for each lot on the day of its entry into storage.
'Lot' shall be taken to mean a quantity which is placed in storage on a given day.
Article 7
1. After two months of storage under contract, meat may be fully or partly withdrawn from store, subject to a minimum quantity, provided that, within 60 days following is removal from store it:
- has left the Community's territory,
or
- has reached its destination in the cases referred to in Article 34 (1) of Regulation (EEC) No 3665/87,
or
- has been placed in a victualling warehouse approved pursuant to Article 38 of Regulation (EEC) No 3665/87.
2. If the 60-day period is not complied with, the amount of aid for the quantity concerned, calculated in accordance with Article 8, shall be reduced:
- by 15 %
plus
- a further 5 % per day exceeding the 60-day period.
Moreover 15 % of the security referred to in Article 10, and a further 5 % per day exceeding the 60 day period, shall be declared forfeit in respect of the quantity concerned.
3. If, prior to the end of the minimum storage period, a minimum of 90 % of the meat actually stored under a contract has been exported in the sense of paragraph 1, the balance may be withdrawn from store prior to the end of the minimum storage period. If withdrawn:
- aid shall only be paid for the quantity having been exported,
and
- the security referred to in Article 10 shall be released only in respect of the quantity having been exported. 4. For the purposes of the preceding paragraphs, proof shall be furnished as in the case of refunds.
Article 8
1. Where application has been made of Article 7, the amount of aid shall be reduced, in accordance with Article 1 (2).
2. The storage period shall terminate on the day before:
- the first day of removal from storage, or
- the day of acceptance of the export declaration, if the meat has not been moved.
3. Article 3 (4) of Council Regulation (EEC, Euratom)) No 1182/71 (1) shall not apply as regards the calculation of the storage period.
Article 9
1. The minimum quantity for each removal is fixed at five tonnes of product weight per store and per contractor. However, where the quantity left in a store is less than this quantity, one further withdrawal operation of the remaining quantity or part thereof shall be permitted.
Where the withdrawal conditions referred to in the preceding subparagraph are not complied with:
- the amount of aid for the quantity withdrawn shall be calculated in accordance with Articled 5 (1) or Article 8, and
- 15 % of the security referred to in Article 10 shall be declared forfeit in respect of the quantity withdrawn.
2. The storer shall inform the intervention agency in good time before the commencement of withdrawal operations, stating the quantities he intends to withdraw.
The intervention agency may require that this notification be made at least two working days before commencement of operations.
Where this requirement is not complied with but where sufficient evidence has been furnished, to the satisfaction of the competent authority, as to the date of withdrawal from store and the quantities concerned
- the amount of said shall be calculated in accordance with Article 5 (1) or Article 8,
and
- 15 % of the security referred to in Article 10 shall be declared forfeit in respect of the quantity concerned.
For all other cases, where that requirement is not complied with:
- no said shall be paid under the contract concerned,
and
- the whole of the security referred to in Article 10 shall be declared forfeit in respect of the contract concerned.
Article 10
The amount of the security referred to in Article 4 (2) of Regulation (EEC) No 1091/80 shall be:
- 100 ECU per tonne in respect of contracts covering carcases of half-carcases,
- 130 ECU per tonne in respect of contracts covering hindquarters,
- 75 ECU per tonne in respect of contracts covering forequarters.
Article 11
Except in cases of forte majeure the application for payment of the aid and the supporting documents must be lodged with the competent authority within six months of the end of the contracted storage period. If it has not been possible to produce them on time although the applicant has acted promptly to obtain them on time although the applicant has acted promptly to obtain them, an extra period of time for their production may be granted. Where Article 7 is applied the necessary proof must be produced within the time limits specified in Article 47 (2) (4) (6) and (7) of Regulation (EEC) No 3665/87.
Article 12
Italy shall communicate by telex to the Commission before Thursday of each week the results of the application of Articles 5 (2), 6 (1) and 7 of this Regulation.
Article 13
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 June 1989.
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COMMISSION REGULATION (EEC) No 1526/84
of 30 May 1984
correcting Regulation (EEC) No 1247/84 as regards the amount of aid for skimmed milk for use as animal feed
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (1), as last amended by Regulation (EEC) No 856/84 (2), and in particular Article 10 (3) thereof,
Whereas Commission Regulation (EEC) No 1247/84 of 4 May 1984 amending Regulations (EEC) No 1105/68 and (EEC) No 2793/77 on detailed rules for granting aid for skimmed milk for use as animal feed (3) lays down that aid may be granted for skimmed-milk powder which is reconstituted into liquid form;
Whereas, when the amounts of the aid were fixed, changes which had been decided as regards aid for skimmed-milk powder at the beginning of the 1984/85 marketing year were not taken into account; whereas the said amounts should therefore be corrected;
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 1247/84 is hereby amended as follows:
1. In Article 1 (3), '61 ECU' is replaced by '69,5 ECU'.
2. In Article 2 (2), '9,10 ECU' and '91 ECU' are replaced by '10,60 ECU' and '106 ECU' respectively.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply with effect from 8 May 1984.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 May 1984.
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Commission Regulation (EC) No 2372/2001
of 4 December 2001
supplementing the Annex to Regulation (EC) No 2400/96 on the entry of certain names in the "Register of protected designations of origin and protected geographical indications" provided for in Council Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 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 2796/2000(2), and in particular Article 6(3) and (4) thereof,
Whereas:
(1) Under Article 5 of Regulation (EEC) No 2081/92, France has sent the Commission an application for the registration of the name "Pélardon" as a designation of origin.
(2) In accordance with Article 6(1) of that Regulation, the application has been found to meet all the requirements laid down therein and in particular to contain all the information required in accordance with Article 4 thereof.
(3) No statements of objection have been received by the Commission under Article 7 of that Regulation in respect of the name given in the Annex to this Regulation following its publication in the Official Journal of the European Communities(3).
(4) The name should therefore be entered in the "Register of protected designations of origin and protected geographical indications" and hence be protected throughout the Community as a protected designation of origin.
(5) The Annex to this Regulation supplements the Annex to Commission Regulation (EC) No 2400/96(4), as last amended by Regulation (EC) No 2036/2001(5),
HAS ADOPTED THIS REGULATION:
Article 1
The name in the Annex hereto is added to the Annex to Regulation (EC) No 2400/96 and entered as a protected designation of origin (PDO) in the "Register of protected designations of origin and protected geographical indications" provided for in Article 6(3) of Regulation (EEC) No 2081/92.
Article 2
This Regulation shall enter into force on the 20th 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, 4 December 2001.
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COMMISSION REGULATION (EEC) No 1199/93 of 14 May 1993 amending Regulation (EEC) No 3567/92 as regards the individual limits, national reserves and transfer of rights to the premium for sheep and goats
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3013/89 of 25 September 1989 on the common organization of the market in sheepmeat and goatmeat (1), as last amended by Regulation (EEC) No 363/93 (2), and in particular Article 5b (4) thereof,
Whereas, for reasons of sound management, provision should be made for the national reserve to include only full rights; whereas the reduced premium (50 %) rights must therefore become full premium rights when they are surrendered to the reserve; whereas, to ensure that this operation has no effect on the budget, these rights should be reduced by half; whereas for this same reason the number of rights which were allocated at the reduced rate (50 %) from this reserve to producers entitled to such rights should be doubled;
Whereas, with a view to the budgetary status quo, it is appropriate not to make provisions for rounding to a full number where an odd number of reduced premium (50 %) rights are surrendered to the reserve and must accordingly be reduced by half;
Whereas, with the view to maintaining the budgetary status quo, it is necessary to state in Commission Regulation (EEC) No 3567/92 (3) that where a producer holding both full and reduced premium (50 %) rights transfers this holding from an area which is not less-favoured within the meaning of Council Directive 75/268/EEC (4), as last amended by Commission Decision 93/238/EEC (5), to a less-favoured area within the meaning of the said Directive, or alternatively from a less-favoured area to one which is not less-favoured and if the Member State allows the rights to be moved away from the said areas, the said producer will receive, in the form of a new combination of full and reduced premium rights, a premium equal to the one he would have received had he remained on the holding he had before transferring;
Whereas these provisions are linked to the introduction of individual limits; whereas it is therefore necessary to apply the said provisions from the 1993 marketing year;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sheepmeat and Goatmeat,
Article 1
Regulation (EEC) No 3567/92 is amended as follows:
1. The following Article 5a is inserted:
'Article 5a
1. Where reduced premium (50 %) rights are surrendered to the national reserve, they shall become full premium rights and their number shall be reduced by 50 %.
Where an odd number of reduced premium rights is transferred to the national reserve, the full premium right following the conversion referred to in the first subparagraph shall not be rounded.
2. Where the (full premium) rights are allocated to a producer from the national reserve, they shall become reduced premium (50 %) rights and their number shall be multiplied by two to the extent necessary to ensure that the total number of full premium rights of a said producer do not exceed:
- 500 where a holding is located in an area which is not less-favoured within the meaning of Council Directive 75/268/EEC (*),
- 1 000 where a holding is located in a less-favoured area.
(*) OJ No L 128, 19. 5. 1975, p. 1.`
2. The following Article 7a is hereby inserted:
'Article 7a
1. Where a producer having full premium and reduced premium (50 %) rights transfers his holding from an area which is not less-favoured to a less-favoured area, the number of his reduced premium rights shall be converted to full rate rights up to the maximum limit of 1 000 as laid down in Article 5 (7) of Regulation (EEC) No 3013/89, so that the total premium received by him following the transfer shall be equal to that which he would have received had he remained on the holding he had prior to transfer and in accordance with Article 14.
2. Where a producer with full rights and, where appropriate, reduced premium (50 %) rights transfers his holding from a less-favoured area to an area which is not less-favoured, the number of his full premium rights shall be converted into reduced premium (50 %) rights in so far as this is necessary to ensure that the limit fo 500 laid down in Article 5 (7) of Regulation (EEC) No 3013/89 is observed and the number of reduced premium rights shall be calculated so that the total premium received by him following the transfer shall be equal to that which we would have received had he remained on the holding he had prior to transfer.`
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
It shall apply from the beginning of the 1993 marketing year.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 May 1993.
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COMMISSION REGULATION (EEC) No 1158/91 of 3 May 1991 on the buying in by tender of skimmed-milk powder to intervention agencies
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 3641/90 (2), and in particular the first subparagraph of Article 7a (1) and Article 7a (3) thereof,
Whereas Council Regulation (EEC) No 777/87 of 16 March 1987 modifying the intervention arrangements for butter and skimmed-milk powder (3), as last amended by Regulation (EEC) No 3577/90 (4), lays down the criteria on which basis, until the end of the eighth 12-month period of application of the additional levy provided for in Article 5c of Regulation (EEC) No 804/68, buying in of skimmed-milk powder by intervention agencies may be suspended; whereas Article 1 (3) (a) of that Regulation provides that where buying in is suspended throughout the Community or in part thereof, buying in may be carried out under a standing invitation to tender; whereas the rules for the application of the tendering procedure should consequently be laid down;
Whereas Council Regulation (EEC) No 1014/68 (5), as last amended by Regulation (EEC) No 3577/90, and Commission Regulation (EEC) No 625/78 (6), as last amended by Regulation (EEC) No 890/91 (7), lay down the general rules and the detailed rules for the buying in of skimmed-milk powder by the intervention agencies; whereas most of those provisions may be applied within the framework of this Regulation and in particular those concerning the quality of the skimmed-milk powder which may be offered for intervention, packing and packaging; whereas it is appropriate, however, to adapt some of these provisions to the tender procedure for purchases; whereas, for this reason, the provision concerning the age of the skimmed-milk powder being offered should be adapted;
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
Where it is decided to issue a standing invitation to tender as provided for in Article 1 (3) (a) of Regulation (EEC) No 777/87, a notice of invitation to tender shall be published in the Official Journal of the European Communities in the Annex to the Regulation issuing the standing invitation to tender, not later than six days before the expiry of the first deadline for the submission of tenders.
Skimmed-milk powder bought in must be skimmed-milk powder meeting the conditions set out in Article 1 (1) (a), (b), (c) and (e) of Regulation (EEC) No 625/78.
Article 2
The deadline for the submission of tenders for each invitation to tender shall expire at 12 noon on each second and fourth Tuesday of the month. If the Tuesday is a public holiday, the deadline shall be extended to 12 noon on the first working day thereafter.
Article 3
1. Tenderers may take part in the invitation to tenders only:
- in respect of skimmed-milk powder manufactured in the 21 days preceding the final date for the submission of tenders; in the case provided for in Annex III (f) second subparagraph of Regulation (EEC) No 625/78, this period is fixed at three weeks,
- if they undertake in writing to comply with Article 2 (6) of Regulation (EEC) No 625/78.
2. Interested parties shall participate in the invitation either by lodging a written tender against a receipt or by any other written means of communication with advice of receipt.
3. Tenders shall specify:
(a) the name and address of the tenderer;
(b) the quantity offered and the production process used (spray or roller);
(c) the price tendered per 100 kilograms of skimmed-milk powder, not including domestic taxes, delivered to storage depot, expressed in ecus, with no more than two decimals;
(d) the place where the skimmed-milk powder is stored.
4. Tenders shall be valid only if:
(a) they relate to a quantity of at least 20 tonnes;
(b) they are accompanied by the undertaking provided for in paragraph 1;
(c) proof is furnished that tenderers have lodged, before the expiry of the final date for the submission of tenders, the security referred to in Article 4 (1) for the invitation to tender concerned.
5. Tenders may not be withdrawn after the expiry of the deadline referred to in Article 2 for the submission of tenders relating to the invitation to tender concerned.
Article 4
1. Under this Regulation, the maintenance of tenders after the expiry of the final date for the submission of tenders and the delivery of the skimmed-milk powder to the depot designated by the intervention agency within the time limit fixed in Article 7 (2) shall constitute primary requirements whose fulfilment shall be ensured by the lodging of a security of ECU 40 per tonne.
2. The security shall be lodged in the Member State in which the tender is submitted.
Article 5
In the light of the tenders received for each invitation to tender and in accordance with the procedure laid down in Article 30 of Regulation (EEC) No 804/68, a maximum buying-in price shall be fixed depending on the intervention prices applicable.
A decision may be taken not to proceed with the invitation to tender.
Article 6
1. Tenderers shall be refused if the price proposed is higher than the maximum price, as referred to in Article 5, applying to the invitation to tender concerned.
2. Rights and obligations arising under the invitation to tender shall not be transferable.
Article 7
1. Tenderers shall be informed forthwith by the intervention agency of the outcome of their participation in the invitation to tender.
The intervention agency shall issue forthwith to the successful tenderer a numbered delivery order indicating:
(a) the quantity to be delivered;
(b) the final date for the delivery of the skimmed-milk powder;
(c) the depot where it must be delivered. Article 3 (1) of Regulation (EEC) No 1014/68 and Articles 5, 6 and 7 of Regulation (EEC) No 625/78 shall apply.
2. Within 28 days of the final date for the submission of tenders, the successful tenderer shall deliver the skimmed-milk powder. Deliveries may be made in several lots.
The cost of unloading the skimmed-milk powder at the storage depot shall be borne by the successful tenderer.
3. Except in cases of force majeure, where the successful tenderer has not delivered the skimmed-milk powder within the time limit laid down, in addition to the forfeiture of the security provided for in Article 4 (1), buying in shall be cancelled in respect of the remaining quantities.
Article 8
For the purposes of this Regulation, the skimmed-milk powder shall be taken over by the intervention agency on the date of entry into the depot but no earlier than the day after the issuing of the delivery order referred to in the second subparagraph of Article 7 (1).
Article 9
Within the period commencing on the 120th day after taking over the skimmed-milk powder and ending on the 140th day thereafter, the intervention agency shall pay the successful tenderer the price indicated in his tender for each quantity taken over.
Article 10
The provisions of Articles 2 (5), 3 and 4 of Regulation (EEC) No 625/78 shall apply.
Article 11
Commission Regulation (EEC) No 2220/85 (8) shall apply except where specific provisions to the contrary are laid down in this Regulation.
Article 12
The security provided for in Article 4 and the maximum price provided for in Article 5 shall be converted into national currency using the representative rate valid on the final date for the submission of tenders.
Article 13
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 May 1991.
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COMMISSION REGULATION (EC) No 1483/96 of 26 July 1996 amending Regulation (EC) No 2402/95 introducing preventive distillation as provided for in Article 38 of Council Regulation (EEC) No 822/87 for the 1995/96 wine year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organization of the market in wine (1), as last amended by Regulation (EC) No 1544/95 (2), and in particular Article 38 (5) thereof,
Whereas Commission Regulation (EEC) No 2721/88 (3), as last amended by Regulation (EEC) No 2181/91 (4), lays down detailed rules for voluntary distillation as provided for in Articles 38, 41 and 42 of Regulation (EEC) No 822/87; whereas Commission Regulation (EC) No 1848/95 (5) fixes the prices, aid and certain other amounts applicable to preventive distillation for the 1995/96 wine year;
Whereas Commission Regulation (EC) No 2402/95 (6), as amended by Regulation (EC) No 2791/95 (7), introduced preventive distillation for the 1995/96 wine year; whereas the final date for signing distillation contracts was 27 December 1995; whereas the final date for the delivery to the distillery of the wine concerned was 15 May 1996;
Whereas the volume of table wine which could be distilled under this measure was fixed at 6 300 000 hl by the abovementioned Regulation but only around 1 900 000 hl of wine has actually been distilled under contract;
Whereas the current situation on the market for table wines, with high stocks at the end of the wine year and a reduction in prices on certain markets, is adversely affecting producers' incomes; whereas a volume of the products concerned should be removed from the market by re-opening preventive distillation, for the unused volume of 2 700 000 hl, reserved for table wines with a view, in addition, to improving the quality of products on the market;
Whereas, if the overall quantity applied for per region exceeds the quantities provided for, the Member States must apply a single reduction rate for all new contracts submitted;
Whereas, for the proper administration of the quantities in question, it is necessary to derogate from certain provisions of Regulation (EEC) No 2721/81 and to lay down that the quantities applied for in the contracts and declarations may be reduced;
Whereas, in order to increase the effectiveness of this measure, it is necessary to concentrate distillation in a short period and to permit the Member States to impose stricter measures and, in particular, to provide for the lodging of a security when contracts and declarations are submitted;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,
HAS ADOPTED THIS REGULATION:
Article 1
The following Article 1a is hereby added to Regulation (EC) No 2402/95:
'Article 1a
1. Preventive distillation of table wine and wine suitable for yielding table wine as provided for in Article 38 of Regulation (EEC) No 822/87 is hereby re-opened for the 1995/96 wine year.
The maximum quantities of table wine and wine suitable for yielding table wine which producers may have distilled, in accordance with Regulation (EEC) No 2721/88 shall be:
TABLE
2. Each producer having produced table wine or wine suitable for yielding table wine may sign, by 20 August 1996, a preventive distillation contract or declaration with the competent authorities of the Member State specifying:
(a) the family name, first name and address of the applicant;
(b) the quantity of wine he has produced which he wishes to have distilled in accordance with current Community provisions concerning the quality of products to be delivered to distilleries;
(c) the name and address or company name of the distillery.
The distillation contract or declaration shall be accompanied by a copy of the production declaration submitted to the competent authorities for the 1995/96 wine year.
The applicant shall also submit proof that he holds the wine concerned and indicate the quantities already delivered to distilleries for preventive distillation in 1995/96.
The Member States may limit the number of contracts a producer may conclude for the distillation measure referred to in this Article.
3. The producer Member States shall determine the reduction rate to be applied to the above contracts and declarations where the overall quantity covered by contracts and declarations submitted for each region exceeds that laid down. Member States shall take the necessary administrative steps to approve the above contracts and declarations by 17 September 1996, indicating the reduction rate applied and the volume of wine accepted per contract or declaration. Member States shall notify the Commission of the quantities of wine covered by contracts by 20 September 1996.
4. Deliveries to distilleries must be made between 1 September and 10 October 1996.
5. Member States may lay down that all contracts and declarations submitted must be accompanied by proof of the lodging of a security as provided for in Article 1 (1) and (3).
6. Regulation (EEC) No 2721/88 shall apply subject to the following:
(a) Article 6 (1) and (4) shall not apply.
(b) Notwithstanding Article 6 (5), the minimum volume of wine for distillation by German and Austrian producers shall be 5 hl.
(c) Notwithstanding Article 7 (1), distillation must take place before 15 December 1996.
(d) Notwithstanding Article 9 (1), advances on aid must be paid by 15 October 1996. Distillers and, where appropriate, producers wishing to take advantage of the possibility of obtaining an advance must submit an application by 25 September 1996.`
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, 26 July 1996.
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Commission Regulation (EC) No 398/2002
of 1 March 2002
fixing the maximum purchasing price for butter for the 45th invitation to tender carried out under the standing invitation to tender governed by Regulation (EC) No 2771/1999
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 1670/2000(2), and in particular Article 10 thereof,
Whereas:
(1) Article 13 of Commission Regulation (EC) No 2771/1999 of 16 December 1999 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in butter and cream(3), as last amended by Regulation (EC) No 1614/2001(4), provides that, in the light of the tenders received for each invitation to tender, a maximum buying-in price is to be fixed in relation to the intervention price applicable and that it may also be decided not to proceed with the invitation to tender.
(2) As a result of the tenders received, the maximum buying-in price should be fixed as set out below.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
For the 45th invitation to tender issued under Regulation (EC) No 2771/1999, for which tenders had to be submitted not later than 26 February 2002, the maximum buying-in price is fixed at 295,38 EUR/100 kg.
Article 2
This Regulation shall enter into force on 2 March 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 1 March 2002.
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*****
COUNCIL REGULATION (EEC) No 881/86
of 24 March 1986
opening, allocating and providing for the administration of a Community tariff quota for carrots falling within subheading ex 07.01 G II of the Common Customs Tariff and originating in Cyprus (1986)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas Article 2 of Council Regulation (EEC) No 3700/83 of 22 December 1983 laying down the arrangements applicable to trade with Cyprus beyond 31 December 1983 (1), as last amended by Regulation (EEC) No 3682/85 (2), jprovides, for the period 1 April to 15 May 1986 for the opening of a Community tariff quota of 2 500 tonnes of carrots, falling within subheading ex 07.01 G II of the Common Customs Tariff and originating in Cyprus, at a rate of customs duty equal to 40 % of the customs duty in the Common Customs Tariff; whereas the Community tariff quota should therefore be opened for this period;
Whereas, in accordance with Articles 180 and 367 of the Act of Accession of Spain and Portugal, the Council adopted Regulation (EEC) No 449/86 determining the arrangements to be applied by the Kingdom of Spain and the Portuguese Republic to trade with certain third countries (3); whereas this Regulation applies therefore to the Community of Ten;
Whereas it is necessary, in particular to ensure to all Community importers equal and uninterrupted access to the abovementioned quota and uninterrupted application of the rates laid down for that quota to all imports of the products concerned into all Member States, until the quota has been used up; whereas, however, since the period of application of the quota is very short, it seems possible to avoid allocating it among the Member States, without prejudice to the drawing against the quota volume of such quantities as they may need, in the conditions and according to the procedure specified in Article 1 (2); whereas this method of management requires close cooperation between the Member States and the Commission; whereas the latter must, in particular, be able to monitor the rate at which the quota is used up and inform the Member States thereof;
Whereas, since the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg are united within and jointly represented by the Benelux Economic Union, any operation relating to 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 April to 15 May 1986, the Common Customs Tariff duty for carrots falling within subheading ex 07.01 G II of the Common Customs Tariff and originating in Cyprus shall in the Community of Ten be suspended at 6,8 % within the limits of a Community tariff quota of 2 500 tonnes.
The Protocol on the definition of the concept of originating products' and on methods of administrative cooperation (4), annexed to the Additional Protocol to the Agreement between the European Economic Community and Cyprus, shall be applicable.
2. If an importer notifies an imminent importation of the product in question in a Member State and requests the benefit of the quota, the Member State concerned shall inform the Commission and draw an amount corresponding to these requirements to the extent that the available balance of the reserve permits this.
3. The shares drawn pursuant to paragraph 2 shall be valid until the end of the quota period.
Article 2
1. Member States shall take all appropriate measures to ensure that their drawings pursuant to Article 1 (2) are carried out in such a way that imports may be charged without interruption against their accumulated shares of the Community quota.
2. Each Member State shall ensure that importers of the said quota have free access to the quota so long as the residual balance of the quota volume allows this.
3. Member States shall charge imports of the said goods against their shares as and when the goods are entered for free circulation.
4. The extent to which the quota has been exhausted shall be determined on the basis of the imports charged in accordance with paragraph 3.
Article 3
At the request of the Commission, Member States shall inform it of imports actually charged against the quota.
Article 4
The Member States and the Commission shall collaborate closely in order to ensure that this Regulation is complied with.
Article 5
This Regulation shall enter into force on 1 April 1986.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 March 1986.
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COMMISSION REGULATION (EC) No 160/2005
of 31 January 2005
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(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 February 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 January 2005.
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Commission Regulation (EC) No 2881/2000
of 27 December 2000
derogating from Regulation (EEC) No 1859/93 on the application of the system of import licences for garlic imported from third countries
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables(1), as last amended by Regulation (EC) No 2699/2000(2), and in particular Article 31(2) thereof,
Whereas:
(1) The Annex to Commission Regulation (EC) No 1104/2000(3) lays down periods for the submission of applications for import licences for garlic originating in China.
(2) Commission Regulation (EEC) No 1859/93(4), as amended by Regulation (EC) No 1662/94(5), stipulates that import licences are to be valid for 40 days from their date of issue as defined in Article 3(2) of that Regulation. Since the period for submitting import licence applications for garlic originating in China for December 2000 and January 2001 is longer, the term of validity of licences issued for that period should be extended where the applicants so request.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fresh Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
Notwithstanding Article 2(2) of Regulation (EEC) No 1859/93, the competent national authorities may extend the term of validity of import licences for garlic originating in China issued for the period December 2000 to January 2001 as referred to in the Annex to Regulation (EC) No 1104/2000 to 80 days from their date of issue where the holder of the licence concerned so requests.
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, 27 December 2000.
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Commission Regulation (EC) No 1686/2001
of 23 August 2001
fixing the export refunds on white sugar and raw sugar exported in its unaltered state
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(1), and in particular the second subparagraph of Article 27(5) thereof,
Whereas:
(1) Article 27 of Regulation (EC) No 1260/2001 provides that the difference between quotations or prices on the world market for the products listed in Article 1(1)(a) of that Regulation and prices for those products within the Community may be covered by an export refund.
(2) Regulation (EC) No 1260/2001 provides that when refunds on white and raw sugar, undenatured and exported in its unaltered state, are being fixed account must be taken of the situation on the Community and world markets in sugar and in particular of the price and cost factors set out in Article 28 of that Regulation. The same Article provides that the economic aspect of the proposed exports should also be taken into account.
(3) The refund on raw sugar must be fixed in respect of the standard quality. The latter is defined in Annex I, point II, to Regulation (EC) No 1260/2001. Furthermore, this refund should be fixed in accordance with Article 28(4) of Regulation (EC) No 1260/2001. Candy sugar is defined in Commission Regulation (EC) No 2135/95 of 7 September 1995 laying down detailed rules of application for the grant of export refunds in the sugar sector(2). The refund thus calculated for sugar containing added flavouring or colouring matter must apply to their sucrose content and, accordingly, be fixed per 1 % of the said content.
(4) The world market situation or the specific requirements of certain markets may make it necessary to vary the refund for sugar according to destination.
(5) In special cases, the amount of the refund may be fixed by other legal instruments.
(6) The refund must be fixed every two weeks. It may be altered in the intervening period.
(7) It follows from applying the rules set out above to the present situation on the market in sugar and in particular to quotations or prices for sugar within the Community and on the world market that the refund should be as set out in the Annex hereto.
(8) Regulation (EC) No 1260/2001 does not make provision to continue the compensation system for storage costs from 1 July 2001. This should accordingly be taken into account when fixing the refunds granted when the export occurs after 30 September 2001.
(9) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the products listed in Article 1(1)(a) of Regulation (EC) No 1260/2001, undenatured and exported in the natural state, are hereby fixed to the amounts shown in the Annex hereto.
Where an export licence for which the refund amount was fixed in accordance with the first paragraph is used after 30 September 2001, the refund in question shall be reduced by EUR 2/100 kg net white sugar equivalent.
Article 2
This Regulation shall enter into force on 24 August 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 August 2001.
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COMMISSION REGULATION (EC) No 924/97 of 23 May 1997 amending for the fourth time Regulation (EC) No 413/97 adopting exceptional support measures for the market in pigmeat in the Netherlands
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2759/75 of 29 October 1975 on the common organization of the market in pigmeat (1), as last amended by Regulation (EC) No 3290/94 (2), and in particular Article 20 and the second paragraph of Article 22 thereof,
Whereas exceptional measures to support the market in pigmeat were adopted for the Netherlands by Commission Regulation (EC) No 413/97 (3), as last amended by Regulation (EC) No 771/97 (4), in response to the outbreak of classical swine fever in certain production regions in that country;
Whereas, owing to the persistence of classical swine fever in the Netherlands, the exceptional measures to support the market should be extended to cover very young piglets in order to reduce expenditure in the coming months and bring down the weight of animals delivered to the competent authorities;
Whereas the delivery of very young piglets means that the aid granted on young piglets and piglets can be stopped in a few weeks while that granted on pigs for fattening can be ended in a few months; whereas the competent Dutch authorities should be authorized to administer this programme and fix the dates and the areas concerned;
Whereas provision should be made for very young piglets to be slaughtered on the farm and then incinerated;
Whereas the aid for very young piglets should be fixed and that granted on the delivery of piglets should be adjusted to the current situation on the market taking account of the increase in market prices;
Whereas the exceptional measures should be extended to include the protection and surveillance zones around Soerendonk and Baarle-Nassau by replacing Annex II to Regulation (EC) No 413/97;
Whereas the swift and effective application of exceptional market support measures is one of the best ways of combating the spread of classical swine fever; whereas the application of this Regulation from 6 May 1997 is accordingly justified;
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
Regulation (EC) No 413/97 is hereby amended as follows:
1. Article 1 is amended as follows:
(a) The following paragraph is inserted:
'4. From 6 May 1997, producers may receive, on request, aid granted by the competent Dutch authorities on the delivery to the latter of very young piglets covered by CN code 0103 91 10 up to three weeks old.`
(b) Paragraph 4 becomes paragraph 5.
2. The following Article is inserted:
'Article 1a
1. The competent Dutch authorities may decide that one or more categories of animals covered by Article 1 (1), (2) and (3) from zones determined by those authorities shall not be eligible as from a date fixed by the latter for the aid provided for in Article 1.
2. The competent Dutch authorities shall notify the Commission at regular intervals of decisions taken pursuant to paragraph 1 and shall provide all the information necessary.`
3. In Article 2, the words 'fattened pigs, piglets and young piglets` are replaced by 'animals`.
4. Article 3 is amended as follows:
(a) The present text becomes paragraph 1.
(b) The following paragraph is added:
'2. Notwithstanding paragraph 1, very young piglets as referred to in Article 1 (4) shall be slaughtered on the farm on the day of delivery and then incinerated or otherwise processed. Operations on the farm shall be carried out under the permanent surveillance of the competent Dutch authorities.`
5. Article 4 (4) is replaced by the following:
'4. At the farm gate the aid provided for in Article 1 (2), (3) and (4) shall amount to the following:
- ECU 55 per head for piglets weighing 25 kilograms or more on average per batch,
- ECU 47 per head for piglets weighing more than 24 kilograms but less than 25 kilograms on average per batch,
- ECU 35 per head for young piglets weighing 8 kilograms or more on average per batch,
- ECU 30 per head for young piglets weighing more than 7,6 kilograms but less than 8 kilograms on average per batch,
- ECU 38 per head for very young piglets up to three weeks old.`
6. The following indent is added to Article 6:
'- number of very young piglets delivered.`
7. The text of Annex I hereto is added to Annex I.
8. Annex II is replaced by Annex II hereto.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 6 May 1997.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 May 1997.
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Commission Regulation (EC) No 501/2002
of 21 March 2002
fixing the maximum export refund for white sugar for the 32nd partial invitation to tender issued within the framework of the standing invitation to tender provided for in Regulation (EC) No 1430/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(1), and in particular Article 27(5) thereof,
Whereas:
(1) Commission Regulation (EC) No 1430/2001 of 13 July 2001 on a standing invitation to tender to determine levies and/or refunds on exports of white sugar(2) for the 2001/2002 marketing year, requires partial invitations to tender to be issued for the export of this sugar.
(2) Pursuant to Article 9(1) of Regulation (EC) No 1430/2001 a maximum export refund shall be fixed, as the case may be, account being taken in particular of the state and foreseeable development of the Community and world markets in sugar, for the partial invitation to tender in question.
(3) Following an examination of the tenders submitted in response to the 32nd partial invitation to tender, the provisions set out in Article 1 should be adopted.
(4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
For the 32nd partial invitation to tender for white sugar issued pursuant to Regulation (EC) No 1430/2001 the maximum amount of the export refund is fixed at 44,105 EUR/100 kg.
Article 2
This Regulation shall enter into force on 22 March 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 March 2002.
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*****
COUNCIL REGULATION (EEC) No 3811/86
of 11 December 1986
amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 51 and 235 thereof,
Having regard to the proposal submitted by the Commission after consulting the Administrative Commission on Social Security for Migrant Workers (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas it is necessary to make certain amendments to Council Regulations (EEC) No 1408/71 (4) and (EEC) No 574/72 (5) as last amended by the Act of Accession of Spain and Portugal and Commission Regulation (EEC) No 513/86 (6);
Whereas it is laid down in Article 14 c (1) a) of Regulation (EEC) No 1408/71 that a person who is employed simultaneously in the territory of one Member State and self-employed in the territory of another Member State shall be subject to the legislation of the Member State in the territory of which he is engaged in paid employment; whereas in Article 14 c (1) b) it is laid down that in the instances referred to in Annex VII, a person shall be subject to the legislation of each of the Member States in question as regards the activities carried out on their territory;
Whereas Article 14 c does not regulate those cases which have occurred in practice where more than two activities in a combination of paid employment and in self-employment are carried out in the territory of two or more Member States; whereas measures should be taken to remedy this situation by making an addition to Article 14 c;
Whereas it is necessary to determine the method of implementation of the present Article 14 c (1) b) in accordance with paragraph 2 of that Article and the method of implementation required to regulate the pursuance of more than two activities where there is mixed paid employment and self-employment in the territory of different Member States;
Whereas it is necessary to amend Regulation (EEC) No 574/72 in order to fix the method of implementing Article 14 c thus supplemented;
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 1408/71 is hereby amended as follows:
1. Article 14 c shall be replaced by the following:
'Article 14c
Special rules applicable to persons who are simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State
A person who is simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State shall be subject:
(a) save as otherwise provided in subparagraph b) to the legislation of the Member State in the territory of which he is engaged in paid employment or, where he pursues such an activity in the territory of two or more Member States, to the legislaton determined in accordance with Article 14 (2) or (3);
(b) in the cases mentioned in Annex VII:
- to the legislation of the Member State in the territory of which he is engaged in paid employment, that legislation having been determined in accordance with the provisions of Article 14 (2) or (3), where he pursues such an activity in the territory of two or more Member States, and
- to the legislation of the Member State in the territory of which he is self-employed, that legislation having been determined in accordance with Article 14 a (2), (3) or (4), where he pursues such an activity in the territory of two or more Member States.';
2. Article 14 d shall be amended as follows:
(a) in paragraph 1, '(1)' after 'Article 14 c' shall be deleted;
(b) the following paragraph shall be inserted:
'2. The person refered to in Article 14 c b) shall be treated, for the purposes of determining the rates of contributions to be charged to self-employed workers under the legislation of the Member State in whose territory he is self-employed, as if he pursued his paid employment in the territory of the Member State concerned.';
(c) the present paragraph 2 shall become paragraph 3;
3. In the title of Annex VII, '(1)' shall be deleted.
Article 2
Regulation (EEC) No 574/72 is hereby amended as follows:
1. The following paragraph 3 shall be added to Article 8:
'3. In the cases referred to in Article 14 c b) of the Regulation, where the person in question or a member of his family is entitled to claim benefits in kind in respect of sickness or maternity under the two legislations in question, the following rules shall be applicable:
(a) where at least one of those legislations stipulates that the benefits shall be awarded in the form of a reimbursement to the person entitled to benefit, this shall be the exclusive responsibility of the institution of the Member State in whose territory they have been awarded;
(b) if the benefits have been awarded in the territory of a Member State other than the two Member States in question, they shall be the exclusive responsibility of the institution of the Member State to whose legislation the person in question is subject by virtue of his paid employment.';
2. The following paragraph 3 shall be added to Article 9:
'3. By way of derogation from paragraphs 1 and 2 in the instances referred to in Article 14 c b) of the Regulation, entitlement to death grants acquired under the legislation of each of the two Member States concerned referred to in Annex VII shall be retained.';
3. Article 12 a shall be amended as follows:
(a) '(1) a)' after '14c' in the title and the introductory sentence shall be deleted;
(b) in point 7 a), '(1)' after 'Article 14c' shall be deleted;
(c) the following point shall be added:
'8. Where, in accordance with the provisions of Article 14c b) of the Regulation, a person who is simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State is subject to the legislation of two Member States, the provisions of points 1, 2, 3 and 4 shall be applicable in respect of paid employment, and the provisions of points 1, 2, 3, 5 and 6 shall be applicable mutatis mutandis in respect of self-employment.
The institutions designated by the competent authorities of the two Member States, whose legislation is determined to be applicable, shall inform each other accordingly.';
4. At the end of Article 15 (1) a), the semicolon shall be replaced by a full stop and the following sentence shall be added:
'Nevertheless, in the cases referred to in Article 4c b) of the Regulation, the abovementioned institutions shall likewise take account, for the award of benefits, of the periods of insurance or of residence completed under an obligatory insurance scheme under the legislation of the two Member States in question which overlap each other;';
5. In the first subparagraph of Article 46 (1), the words 'Article 15 (1) b), c) and d)' shall be replaced by the words 'Article 15 (1) a), last sentence, b), c) and d)';
6. After Article 119, the following Article shall be inserted:
'Article 119a
Transitional provisions relating to pensions for the purpose of applying the last part of Article 15 (1) a) of the implementing Regulation
1. Where the date on which the contingency arises precedes 1 January 1987 and where the claim for a pension has not yet resulted in an award before that date, such claim shall, in as much as benefits must be granted, pursuant to such contingency, for a period prior to the last-mentioned date, give rise to a double award:
(a) for the period prior to 1 January 1987, in accordance with the provisions of the Regulation or of agreements in force between the Member States concerned;
(b) for the period commencing on 1 January 1987, in accordance with the provisions of the Regulation.
If, however, the amount calculated in pursuance of the provisions referred to under (a) is greater than that calculated in pursuance of the provisions referred to under (b), the person concerned shall continue to be entitled to the amount calculated in pursuance of the provisions referred to under (a). 2. A claim for invalidity, old-age or survivors' benefits submitted to an institution of a Member State from 1 January 1987 shall automatically necessitate the reassessment, in accordance with the provisions of the Regulation, 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, without prejudice to the provisions of Article 3.
3. The rights of the persons concerned who obtained the award of pensions prior to 1 January 1987 in the territory of the Member State in question may be revised at their request in the light of the provisions of Council Regulation (EEC) No 3811/86 (1).
4. If the request referred to in paragraph 3 is submitted within one year following 1 January 1987, entitlement to rights under Regulation (EEC) No 3811/86 shall be acquired from 1 January 1987 or from the date of the entitlement to a pension where the last-mentioned date is subsequent to 1 January 1987; in such case the provisions of the legislation of any Member State with regard to the withdrawal or limitation of rights may not be relied upon as against the persons concerned.
5. If the request referred to in paragraph 3 is submitted after expiry of the period of one year following 1 January 1987, entitlement to rights acquired under Regulation (EEC) No 3811/86 which have not been withdrawn or in respect of which the period of limitation has not been exceeded shall be acquired from the date on which the request is submitted, unless more favourable provisions of the legislation of any of the Member States are applicable.
(1) OJ No L 355, 16. 12. 1986, p. 5.'
Article 3
This Regulation shall not prejudice rights acquired before it entered into force by virtue of Regulations (EEC) No 1408/71 and (EEC) No 574/72.
Article 4
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 January 1987.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 December 1986.
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Council Decision
of 16 June 2000
on the procedure concerning derogations from the rules of origin set out in Protocol No 1 to the ACP-EC Partnership Agreement
(2000/399/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133,
Having regard to the proposal from the Commission,
Whereas:
(1) The Fourth ACP-EC Convention expired on 29 February 2000.
(2) The new ACP-EC Partnership Agreement could not enter into force on that date.
(3) Article 3 of Decision No 1/2000 of the ACP-EC Committee of Ambassadors of 28 February 2000 on transitional measures valid from 1 March 2000(1) provides that the trade provisions of the ACP-EC Partnership Agreement, including Protocol No 1 concerning the definition of the concept of "originating products" and methods of administrative cooperation to the Convention applies from 1 March 2000.
(4) Article 38(9) of the said Protocol provides that requests by the ACP States for derogations from the rules of origin of the same Protocol shall be deemed to have been accepted if the Community does not inform the ACP States of its position on the requests within 75 working days of their receipt by the EC Co-Chairman of the ACP-EC Customs Cooperation Committee, set up by Article 37 of Protocol No 1.
(5) It is therefore necessary to adopt a procedure ensuring that the Community position can be adopted and communicated to the ACP States within the period of 75 working days.
(6) The measures necessary for the implementation of this Decision should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(2).
(7) Council Decision 90/523/EEC(3) provided for the delegation of powers to the Commission with regard to the adoption of a common position of the Community following a request by the ACP States for derogation from the rules of origin laid down in Protocol No 1 to the Fourth ACP-EC Convention. A similar delegation of powers to the Commission should now be provided for with regard to requests for derogations from the rules of origin laid down in Protocol No 1 to the ACP-EC Partnership Agreement.
(8) Council Regulation (EEC, Euratom) No 1182/71(4) lays down the rules applicable to periods, dates and time limits,
HAS DECIDED AS FOLLOWS:
Article 1
The common position of the Community with regard to a request presented by the ACP States for derogation from the rules of origin laid down in Protocol No 1 to the ACP-EC Partnership Agreement shall be adopted by the Commission in accordance with the procedure laid down in Article 2.
Article 2
The Commission shall be assisted by the Customs Code Committee instituted by Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(5), hereinafter referred to as the "Committee".
The representative of the Commission shall submit to the Committee a draft common position within 25 working days from the receipt of a request for derogation by the EC Co-Chairman of the EC-ACP Customs Cooperation Committee. The Committee shall deliver an opinion on the draft within a time limit determined by its Chairman according to the urgency of the matter concerned. The opinion shall be delivered by the majority laid down in Article 205(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States shall be weighted in the manner set out in that Article. The Chairman shall not vote.
The Commission shall adopt the common position and transmit it immediately to the ACP States. However, if the common position is not in accordance with the opinion of the Committee, it shall be submitted by the Commission to the Council forthwith. In that event, the Commission shall defer its transmission to the ACP States for a period of 25 working days from the date of the vote in the Committee.
The Council, acting by a qualified majority, may adopt a different common position within the period provided for in the third paragraph.
Article 3
The definition of working days for the purposes of this Decision shall be that laid down in Regulation (EEC, Euratom) No 1182/71.
Article 4
This Decision shall take effect on the date of its publication in the Official Journal of the European Communities.
It shall apply until 31 December 2007.
Done at Luxembourg, 16 June 2000.
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COMMISSION REGULATION (EC) Νo 348/2007
of 29 March 2007
fixing the export refunds on products processed from cereals and rice
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1), and in particular Article 13(3) thereof,
Having regard to Council Regulation (EC) No 1785/2003 of 29 September 2003 on the common organisation of the market in rice (2), and in particular Article 14(3) thereof,
Whereas:
(1)
Article 13 of Regulation (EC) No 1784/2003 and Article 14 of Regulation (EC) No 1785/2003 provide that the difference between quotations or prices on the world market for the products listed in Article 1 of those Regulations and prices for those products within the Community may be covered by an export refund.
(2)
Article 14 of Regulation (EC) No 1785/2003 provides that when refunds are being fixed account must be taken of the existing situation and the future trend with regard to prices and availabilities of cereals, rice and broken rice on the Community market on the one hand and prices for cereals, rice, broken rice and cereal products on the world market on the other. The same Articles provide that it is also important to ensure equilibrium and the natural development of prices and trade on the markets in cereals and rice and, furthermore, to take into account the economic aspect of the proposed exports, and the need to avoid disturbances on the Community market.
(3)
Article 4 of Commission Regulation (EC) No 1518/95 (3) on the import and export system for products processed from cereals and from rice defines the specific criteria to be taken into account when the refund on these products is being calculated.
(4)
The refund to be granted in respect of certain processed products should be graduated on the basis of the ash, crude fibre, tegument, protein, fat and starch content of the individual product concerned, this content being a particularly good indicator of the quantity of basic product actually incorporated in the processed product.
(5)
There is no need at present to fix an export refund for manioc, other tropical roots and tubers or flours obtained therefrom, given the economic aspect of potential exports and in particular the nature and origin of these products. For certain products processed from cereals, the insignificance of Community participation in world trade makes it unnecessary to fix an export refund at the present time.
(6)
The world market situation or the specific requirements of certain markets may make it necessary to vary the refund for certain products according to destination.
(7)
The refund must be fixed once a month. It may be altered in the intervening period.
(8)
Certain processed maize products may undergo a heat treatment following which a refund might be granted that does not correspond to the quality of the product; whereas it should therefore be specified that on these products, containing pregelatinised starch, no export refund is to be granted.
(9)
The Management Committee for Cereals has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the products listed in Article 1 of Regulation (EC) No 1518/95 are hereby fixed as shown in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 30 March 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 March 2007.
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Commission Regulation (EC) No 1508/2001
of 24 July 2001
laying down the marketing standard for onions and amending Regulation (EEC) No 2213/83
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables(1), as last amended by Commission Regulation (EC) No 911/2001(2), and in particular Article 2(2) thereof,
Whereas:
(1) Onions are among the products listed in Annex I to Regulation (EC) No 2200/96 for which standards must be adopted. Commission Regulation (EEC) No 2213/83 of 28 July 1983 laying down quality standards for onions and witloof chicory(3), as last amended by Regulation (EC) No 2390/97(4), has been amended and can no longer ensure legal clarity.
(2) In the interest of clarity, the rules on onions should be separated from those on other products under Regulation (EEC) No 2213/83. The rules in question should therefore be recast and Annex I to Regulation (EC) No 2213/83 should be repealed. To that end, and in the interest of preserving transparency on the world market, account should be taken of the standard for onions recommended by the Working Party on Standardisation of Perishable Produce and Quality Development of the United Nations Economic Commission for Europe (UN/ECE).
(3) Application of these standards should remove products of unsatisfactory quality from the market, bring production into line with consumer requirements and facilitate trade based on fair competition, thereby helping to improve profitability.
(4) The standards are applicable at all marketing stages. Long-distance transport, storage over a certain period and the various processes the products undergo may cause some degree of deterioration owing to the biological development of the products or their perishable nature. Account should be taken of such deterioration when applying the standard at the marketing stages following dispatch.
(5) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fresh Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
The marketing standard for onions, falling within CN code 0703 10 19, shall be as set out in the Annex.
This standard shall apply at all marketing stages, under the conditions laid down in Regulation (EC) No 2200/96.
However, at stages following dispatch, products may show in relation to the requirements of the standard a slight lack of freshness and turgidity, as well as slight deterioration due to their development and their perishable nature.
Article 2
Regulation (EEC) No 2213/83 is amended as follows:
1. In the title, the words "onions and" are deleted.
2. Article 1(1) is replaced by the following: "1. The marketing standard for witloof chicory, falling within CN code 0705 21 00, shall be as set out in the Annex to this Regulation."
3. Annex I is deleted.
4. In Annex II, the title is replaced by the following title: "Annex".
Article 3
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.
It shall apply from 1 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 July 2001.
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COMMISSION DECISION of 29 July 1998 on aid granted by the Land of Lower Saxony (Germany) to Georgsmarienhütte GmbH (notified under document number C(1998) 2556) (Only the German text is authentic) (Text with EEA relevance) (1999/227/ECSC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 4(c) thereof,
Having regard to Commission Decision No 2496/96/ECSC establishing Community rules for State aid to the steel industry (1), and in particular to Article 3 thereof,
Having, in accordance with Article 6(5) of the abovementioned Decision, given notice to interested parties to submit their comments,
Whereas:
I
On 15 July 1997, the Commission decided to initiate proceedings pursuant to Article 6(5) of Decision No 2496/96/ECSC in respect of DEM 61,64 million paid by the Land of Lower Saxony to Georgsmarienhütte GmbH (hereinafter referred to as 'GMH`) for the removal of industrial dust.
Interested parties were informed by publication of a notice in the Official Journal of the European Communities (2). Comments were sent by Neue Maxhütte Stahlwerke, the UK Steel Association and the United Kingdom Permanent Representation to the European Union. The German authorities sent their initial comments by letter dated 13 October 1997 and their observations on the third parties' comments by letter dated 13 March 1998. On 13 July 1998, Germany sent a further letter setting out its final position on the case.
II
GMH was formed through a management buy-out operation in April 1993, when Klöckner Edelstahl GmbH, Duisburg, a subsidiary of Klöckner Werke AG, was sold. Klöckner Werke AG had applied for composition proceedings (Vergleichsverfahren) on 11 December 1992, and these were formally initiated on 5 May 1993. On 15 June 1993, the Court approved the final composition arrangement, which led to a reduction of the company's indebtedness by 40 % (approximately DEM 1,46 billion).
The new management of GMH decided, as part of its restructuring, to replace the old blast furnace and converter by an electric arc furnace. In July 1993 Germany notified an aid plan covering R& D aid of DEM 32,5 million. The aid was intended to cover part of the research costs of examining how old dust could be recycled economically in an electric arc furnace. At present, in such cases or when the level of zinc is too high for it to be re-injected into the sinter installations (blast furnace production process), blast furnace dust is stored, for example, in disused mines.
In proceedings pursuant to Article 6(4) of Commission Decision No 3855/91/ECSC of 27 November 1991 establishing Community rules for aid to the steel industry (3), initiated in November 1993 (4), aid of DEM 15,243 million was approved by the Commission by Decision 95/437/ECSC in February 1995 (5). In that Decision, the Commission refused as eligible costs the cost of construction of the electrical arc furnace and de-dusting installation (DEM 62,7 million).
III
GMH produces steel, including special steels and quality steels. Up until September 1994 the crude steel production was carried out in a blast furnace/converter plant. Filter dust, containing ferrum, zinc, carbon and various heavy metals, was collected from the waste air of the converter. Since September 1994 the company has been producing steel using an electric arc furnace.
After the company applied for composition proceedings at the end of 1992, the Land of Lower Saxony assumed the obligation of providing for proper disposal of the filter dust on stock at the GMH site. The new shareholders of GMH intended to cease blast furnace steel making and to replace it by electric steel making. In electric arc furnaces using current technology, converter filter dust cannot be recycled economically.
The Land of Lower Saxony instructed Niedersächsiche Landesentwicklungsgesellschaft mbH (hereinafter referred to as NILEG), a company entirely controlled by the Land, to provide for the proper recycling or disposal of the dust and paid it DEM 69,14 million for doing so. In February 1994, NILEG signed a contract with GMH and instructed GHM, the initial producer and owner of the dust, to try and dispose of it by recycling it using new industrial technology, which was under research as part of the abovementioned R& D project. For this, NILEG paid DEM 61,64 million to GMH in three instalments as follows:
- March 1994: DEM 21,82 million,
- November 1994: DEM 18,00 million,
- February 1995: DEM 21,82 million.
At the same time, in February 1994, GMH sold to NILEG several real estate assets, including the land where the old dust is stored (Westerkamp), for a total of DEM 14,5 million. The overall book value of the assets sold was set at DEM 38,996 million, implying that the Westerkamp land was sold at a loss price of DEM 24,496 million. The value of the assets sold, excluding the Westerkamp site, was later confirmed by an external assessment in June 1998, ordered by Germany.
IV
As part of the proceedings, Neue Maxhütte Stahlwerke GmbH, the UK Steel Association and the United Kingdom Permanent Representation to the European Union sent their comments on the case. They all took the position that the relief of GMH from the disposal/treatment of the dust constituted State aid which they considered to be operating aid and accordingly incompatible with the steel aid code.
The United Kingdom Permanent Representation further stated that it believed the reason for the payment was to make the company more attractive to a potential buyer. Neue Maxhütte Stahlwerke GmbH referred to a contract between GMH and another company 'Relux` to which GMH pays DEM 108/tonne for it to remove its industrial dust. It then compared the total price that will be paid to Relux, assuming a total of 150 000 tonnes of dust, and concluded that NILEG paid DEM 43,8 million too much to GMH.
V
In the earlier correspondence, Germany argued that the amount of DEM 61,64 million was paid by NILEG to GMH in the context of a normal services contract, in relation to the possibility of recycling the dust on the Westerkamp site, and that therefore there was no aid element in the payment.
According to Germany, there was no legal obligation for GMH to recycle the dust (it can stay in Westerkamp or be stored underground in old mines) and it was NILEG, as a public company and owner of the land where the dust is deposited, that wanted to have the dust recycled, for environmental reasons.
The amount paid by NILEG to GMH under the contract is even less than the expenses thus far incurred by GMH for having accepted to take part in this operation: the price of the furnace acquired was much higher in order to be able to recycle the dust and the running costs of this special furnace are much higher (particularly in electricity) than those of a normal production furnace. Also, if the company is to readapt the existing furnace to its normal production needs, it has again to incur high expenses.
The DEM 61,64 million paid by NILEG was used to cover that extra cost of the furnace (DEM 17 million) and the costs of recycling incurred until the end of 1996 (DEM 55 million). By then, GMH had informed NILEG that the recycling cost could not be brought down to much less than DEM 400/tonne, stopped the recycling operation and requested NILEG to revise the initial contract price upwards (the request was not accepted for lack of money). Also, during the first half of 1997, GMH claimed to have incurred DEM 2,5 million more as running costs, with its own production activity, because of the particularities of the electric arc furnace.
In a letter dated 26 June 1998, Germany also argued that GMH should be allowed to keep the amount corresponding to the extra expenses it had incurred as this did not constitute aid, and it arrived at an amount of DEM 38,586 million which it considered to be the aid paid to GMH. This amount would still have to be reduced by the negative selling price in view of the cancellation of the sale of the Westerkamp site.
As regards the third parties' comments, Germany reiterated its position that GMH had no legal obligation to recycle the dust and that therefore there was no aid involved. As to the particular comments made by the United Kingdom Permanent Representation to the European Union concerning the 'incentive for a potential buyer`, Germany pointed out that GMH was formed in April 1993 and that the amount in question was paid under a contract subsequently entered into with the new company. As to the comments made by Neue Maxhütte concerning the Relux contract, Germany stated that the data on which the comments were based were not accurate, since the Relux contract related only to the dust newly produced by GMH, the transport costs were not included in the contract price but were GMH's responsibility and the quantity of old dust was not 150 000 tonnes but 300 000 tonnes.
By faxes of 10 and 13 July 1998, however, Germany informed the Commission that the sale of Westerkamp to NILEG would be annulled and that GMH would reimburse the amount received from NILEG, DEM 61,64 million, after deduction of the negative sale price of Westerkamp of around DEM 37 million. The letter dated 26 June was to be considered null and void. Furthermore, Germany informed the Commission that the environmental responsibility for the disposal/treatment of the old dust would remain with GMH.
VI
GMH is an undertaking within the meaning of Article 80 of the ECSC Treaty which produces products listed in Annex I to the ECSC Treaty, so that the provisions of the ECSC Treaty and of Decision No 2496/96/ECSC are applicable.
Pursuant to Article 6(1) of that Decision, the Commission must be informed, in sufficient time to enable it to submit its comments, of any plans to grant aid to an ECSC steel undertaking. The term 'aid` also covers the aid elements contained in transfers of State resources by Member States, regional or local authorities or other bodies to steel undertakings in the form of acquisitions of shareholdings or provisions of capital or similar financing (such as bonds convertible into shares, or loans on non-commercial conditions or the interest on or repayment of which is at least partly dependent on the undertaking's financial performance, including loan guarantees and real-estate transfers) which cannot be regarded as a genuine provision of risk capital according to usual investment practice in a market economy.
According to Community and German law, applying the polluter-pays principle, the producer and/or owner of waste is responsible for ensuring its environmentally acceptable disposal or recycling. The responsibility of the polluter is in principle an obligation to act and not simply to pay. The polluter may, of course, instruct a qualified third person to carry out the necessary disposal on his behalf and pay that third person for the services provided. The obligation of the polluter is independent of his financial situation. Even if he is in financial difficulties and has applied for composition proceedings (Vergleichsverfahren) in order to negotiate a partial waiving of claims by his creditors, he is still obliged to dispose properly of the waste he has produced.
If a particular polluter does not comply with his obligation, the public authorities may issue a removal order. If such order is not complied with, the State may decide to dispose of the waste and charge the expenses to the polluter. The risk of insolvency is in this case borne by the State, but the fact that a person might be unable to pay debts to the State does not mean that the State has a 'subsidiary responsibility` for his obligations. Since GMH was established under composition proceedings, the environmental liability of the old company remains with the new company. Discharging GMH from its obligations in this regard therefore constitutes State aid.
The relief of a particular company from the general responsibility to provide for the proper disposal or recycling of industrial dust represents State aid. A competitor is thereby relieved of production costs. Such relief is operating aid within the meaning of point 1.5.3. of the Community guidelines on State aid for environmental protection. The amount of State aid involved in such relief is in principle to be evaluated in accordance with the normal costs for the disposal or recycling of the waste in question.
In the current case, the Land of Lower Saxony assumed the responsibility for the disposal of industrial dust arising from the steel-making activities of GMH. The company was thereby relieved from the costs of the appropriate treatment of this dust. Subsequently the Land of Lower Saxony paid, via NILEG, DEM 61,64 million to GMH for the recycling of such dust which the company itself produced and which, under normal circumstances, it has to treat or dispose of appropriately at its own expense.
The fact that GMH sold the land where the dust is deposited to NILEG at a loss price of DEM 24,496 million could be accepted as entailing the transfer of GHM's environmental obligations only if the negative price paid covered the total cost of complying with such obligations. The German position that, because the land where the dust is deposited belongs to a public company, the latter is responsible for its disposal and that therefore any payments made in relation to that operation do not constitute aid, cannot be accepted.
After having valued the land at the negative price of DEM 24,496 million, which could be interpreted as being the amount necessary to clean it, GMH received, in its turn, DEM 61,64 million from NILEG in order to try and recycle its own dust, using the new technology for which it had also received aid.
The relief from the costs of the appropriate treatment of the filter dust by the State represents State aid. The exact amount of the presumed aid is unknown, since the operation has not been carried out and therefore the final and total costs of the operation are not known. DEM 61,64 million have so far been paid in relation to this operation.
However, as Germany stated in its fax of 10 July 1998, the sale of the Westerkamp site is to be cancelled, so that the responsibility for treating the dust/cleaning the land belongs to GMH. Once the annulment of the land sale has been formally confirmed, the aid element linked to the relief from environmental obligations will disappear.
As regards the DEM 61,64 million paid by NILEG, since GMH did not recycle the dust and is not going to, because it proved not to be economically viable, the amount cannot be considered to be aid under the Community Guidelines on State aid for environmental protection (no improvement in environmental protection took place). Nor can it be considered under the R& D aid framework since, in Decision 95/437/ECSC, the Commission already approved the maximum of such aid for this project.
The German authorities now state that GMH and NILEG are to cancel the sale contract concerning the Westerkamp site and that Germany accepts that the environmental responsibility for cleaning the land belongs to GMH. Provided that this cancellation actually takes place, it can be accepted that the negative price for which GMH had sold Westerkamp to NILEG (DEM 24,496 million) be set off against the DEM 61,64 million. If Westerkamp had not been included in the sale of real estate assets, GMH would have received DEM 24,496 million more for the sale of the other assets. Moreover, the market value of those assets was confirmed in June 1998 by an independent assessment ordered by the German authorities. This means that, following cancellation of the sale of the Westerkamp site, the amount of illegal aid from which GMH benefited is DEM 37,144 million.
This aid constitutes operating aid, which is not covered by Decision No 2496/96/ECSC. Operating aid to ECSC steel companies cannot be regarded as compatible with the common market. GMH must therefore pay back this aid, plus interest, in order to restore the normal market conditions that existed prior to the disbursement of such aid.
VII
In conclusion, the net amount of State aid from which GMH benefited under the contract signed between GMH and NILEG after deduction of the negative price for the sale of Westerkamp site and on condition that this sale is cancelled, is DEM 37,144 million. In view of the type of costs that GMH financed with the aid, that constitutes operating aid, which is not compatible with Decision No 2496/96/ECSC or with the ECSC Treaty. The aid in question must therefore be abolished and repaid by the company.
Repayment must be made in accordance with national procedures and legal provisions, with the interest being calculated, as from the date of disbursement of the aid, on the basis of the reference rate used in the calculation of the net grant equivalent of regional aid measures. This measure is necessary in order to restore the situation that existed prior to the aid disbursement by removing all the financial advantages from which the company benefited,
HAS ADOPTED THIS DECISION:
Article 1
The aid granted by Germany through Niedersächsiche Landesentwicklungsgesellschaft mbH to Georgsmarienhütte GmbH in the amount of DEM 61,64 million was paid unlawfully without prior notification to the Commission, as provided for in Article 6 of Decision No 2496/96/ECSC. The aid is incompatible with the ECSC Treaty and the common market since it does not fulfil any of the conditions for derogation from Article 4 of the ECSC Treaty laid down in Decision No 2496/96/ECSC.
Article 2
Germany shall abolish the aid referred to in Article 1 and require its recovery within two months from the notification of this Decision.
Provided that the sale of the Westerkamp site is cancelled, as announced by Germany in its last letter, the amount of aid to be repaid is reduced by DEM 24,496 million to DEM 37,144 million.
Repayment shall be made in accordance with national procedures and legal provisions with interest, based on the interest rate used as the reference rate in the calculation of the net grant equivalent of regional aid measures at the time when the aid was disbursed, starting to run on the date on which the aid was granted.
Article 3
Germany shall inform the Commission, within two months of being notified of this Decision, of the measures taken to comply therewith and shall provide evidence that the sale of the Westerkamp site to NILEG has been annulled, so that this element can be taken into consideration in the amount of aid to be repaid.
Article 4
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 29 July 1998.
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*****
COMMISSION REGULATION (EEC) No 904/85
of 2 April 1985
re-establishing the levying of customs duties on certain panty-hose (tights), products of category 70 (code 40.0700), originating in Sri Lanka, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3563/84 apply
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3563/84 of 18 December 1984 applying generalized tariff preferences for 1985 in respect of textile products originating in developing countries (1), and in particular Article 4 thereof,
Whereas Article 2 of that Regulation provides that preferential tariff treatment shall be accorded, for each category of products subjected to individual ceilings not allocated among the Member States, within the limits of the quantities specified in column 7 of its Annexes I or II, in respect of certain or each of the countries or territories of origin referred to in column 5 of the same Annexes; whereas Article 3 of that Regulation provides that the levying of customs duties may be re-established at any time in respect of imports of the products in question once the relevant individual ceilings have been reached at Community level;
Whereas, in respect of certain panty-hose (tights), products of category 70 (code 40.0700), the relevant ceiling amounts to 520 000 pieces; whereas on 29 March 1985 imports of the products in question into the Community originating in Sri Lanka, a country covered by preferential tariff arrangements, reached and were charged against that ceiling;
Whereas it is appropriate to re-establish the levying of customs duties for the products in question with regard to Sri Lanka,
HAS ADOPTED THIS REGULATION:
Article 1
As from 7 April 1985, the levying of customs duties, suspended pursuant to Council Regulation (EEC) No 3563/84, shall be re-established in respect of the following products, imported into the Community and originating in Sri Lanka:
1.2.3.4.5 // // // // // // Code // Category // CCT heading No // NIMEXE code (1985) // Description // // // // // // // (1) // (2) // (3) // (4) // // // // // // 40.0700 // 70 // ex 60.04 B // // Under garments, knitted or crocheted, not elastic or rubberized: // // // // // B. Of other textile materials: // // // // 60.04-31, 33, 34 // Panty-hose (tights) // // // // //
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, 2 April 1985.
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COMMISSION REGULATION (EC) No 701/2007
of 21 June 2007
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 22 June 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 June 2007.
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*****
COMMISSION DECISION
of 15 November 1982
establishing that the apparatus described as 'Beckman - Analytical Ultracentrifuge, model E' may be imported free of Common Customs Tariff duties
(82/802/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1798/75 of 10 July 1975 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials (1), as last amended by Regulation (EEC) No 608/82 (2),
Having regard to Commission Regulation (EEC) No 2784/79 of 12 December 1979 laying down provisions for the implementation of Regulation (EEC) No 1798/75 (3), and in particular Article 7 thereof,
Whereas, by letter dated 7 April 1982, the Federal Republic of Germany has requested the Commission to invoke the procedure provided for in Article 7 of Regulation (EEC) No 2784/79 in order to determine whether or not the apparatus described as 'Beckman - Analytical Ultracentrifuge, model E', ordered on 10 November 1980 and to be used for structural analysis, in particular the determination and the distribution of the molecular masses of artificial and natural polymers and in particular for the measurement of the sedimentation of artificial macromolecules in solution in intense gravitational fields, should be considered to be a scientific apparatus and, where the reply is in the affirmative, whether apparatus of equivalent scientific value is currently being manufactured in the Community;
Whereas, in accordance with the provisions of Article 7 (5) of Regulation (EEC) No 2784/79, a group of experts composed of representatives of all the Member States met on 20 September 1982 within the framework of the Committee on Duty-Free Arrangements to examine the matter;
Whereas this examination showed that the apparatus in question is an ultracentrifuge;
Whereas its objective technical characteristics such as the precision and the sensibility of the analysis and the use to which it is put make it specially suited to scientific research; whereas, moreover, apparatus of the same kind are principally used for scientific activities; whereas it must therefore be considered to be a scientific apparatus;
Whereas, on the basis of information received from Member States, apparatus of equivalent scientific value capable of use for the same purpose is not currently manufactured in the Community; whereas, therefore, duty-free admission of this apparatus is justified,
HAS ADOPTED THIS DECISION:
Article 1
The apparatus described as 'Beckman - Analytical Ultracentrifuge, model E', which is the subject of an application by the Federal Republic of Germany of 7 April 1982, may be imported free of Common Customs Tariff duties.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 15 November 1982.
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****
( 1 ) OJ NO L 148 , 28 . 6 . 1968 , P . 13 .
( 2 ) OJ NO L 204 , 28 . 7 . 1978 , P . 6 .
( 3 ) OJ NO L 169 , 18 . 7 . 1968 , P . 1 .
( 4 ) OJ NO L 161 , 29 . 6 . 1979 , P . 13 .
( 5 ) OJ NO L 41 , 16 . 2 . 1979 , P . 1 .
( 6 ) OJ NO L 281 , 10 . 11 . 1979 , P . 25 .
COMMISSION REGULATION ( EEC ) NO 925/80
OF 16 APRIL 1980
AMENDING REGULATION ( EEC ) NO 262/79 ON THE SALE OF BUTTER AT REDUCED PRICES 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 1761/78 ( 2 ), AND IN PARTICULAR ARTICLE 6 ( 7 ) 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 COMMISSION REGULATION ( EEC ) NO 262/79 ( 5 ), AS LAST AMENDED BY REGULATION ( EEC ) NO 2478/79 ( 6 ), ALLOWS UNDERTAKINGS MANUFACTURING PASTRY PRODUCTS , ICE-CREAM AND OTHER FOODSTUFFS ACCESS TO BUTTER FROM PUBLIC STORAGE SOLD AT REDUCED PRICES ; WHEREAS , TO ENSURE THAT THIS MEASURE IS AS EFFECTIVE AS POSSIBLE , THE PARTIES CONCERNED SHOULD BE GIVEN CERTAIN ASSURANCES AS TO ITS CONTINUING NATURE ;
WHEREAS , AT THE SAME TIME , IT SHOULD BE MADE CLEAR THAT , PRIOR TO THEIR PROCESSING INTO PRODUCTS LISTED IN ARTICLE 4 OF THE SAID REGULATION ( EEC ) NO 262/79 , BUTTER OR CONCENTRATED BUTTER CANNOT , DURING AN INTERMEDIATE STAGE OF PROCESSING , BE PROCESSED INTO PRODUCTS OTHER THAN THOSE SPECIFIED IN ARTICLE 4 UNLESS THIS INTERMEDIATE PROCESSING IS CARRIED OUT IN THE ESTABLISHMENT WHERE FINAL PROCESSING TAKES PLACE ; WHEREAS AN EXCEPTION FROM THIS RULE MAY HOWEVER BE PERMITTED WHERE THE ESTABLISHMENTS OF INTERMEDIATE AND OF FINAL PROCESSING CAN SUPPLY THE NECESSARY GUARANTEES TO ALLOW FOR EFFICIENT SUPERVISION OF THE END-USE OF THE BUTTER CONCERNED AND , BY VIRTUE OF THESE GUARANTEES , THE COMPETENT AUTHORITY HAS GIVEN PRIOR AUTHORIZATION FOR THE INTERMEDIATE PROCESSING ; WHEREAS , THE COMPETENT AUTHORITY MUST THEREFORE BE IN A POSITION TO EVALUATE THE GUARANTEES OFFERED BY THE ESTABLISHMENTS , BOTH OF INTERMEDIATE PROCESSING AND OF FINAL PROCESSING ;
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 AMENDED AS FOLLOWS :
1 . A FURTHER PARAGRAPH AS FOLLOWS IS ADDED TO ARTICLE 1 :
' THE SALE ARRANGEMENTS PROVIDED FOR IN THE PRESENT REGULATION SHALL REMAIN APPLICABLE FOR AS LONG AS THE QUANTITIES OF BUTTER AVAILABLE IN PUBLIC STORAGE PERMIT , AND IN ANY EVENT FOR A PERIOD WHICH MAY ONLY END , AT THE EARLIEST , ONE YEAR AFTER THE DATE ON WHICH AN APPROPRIATE NOTICE , DECIDED UPON IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 30 OF REGULATION ( EEC ) NO 804/68 , IS PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES . '
2 . ARTICLE 7 IS AMENDED TO READ AS FOLLOWS :
' ARTICLE 7
1 . PRIOR TO THEIR PROCESSING INTO PRODUCTS SPECIFIED IN ARTICLE 4 , CONCENTRATED BUTTER AS REFERRED TO IN ARTICLE 5 ( 1 ) AND ( 2 ), WHERE ARTICLE 10 ( 2 ) IS APPLIED , BUTTER CANNOT AT ANY INTERMEDIATE STAGE , BE PROCESSED INTO PRODUCTS FALLING WITHIN A TARIFF HEADING OTHER THAN THOSE SPECIFIED IN ARTICLE 4 , UNLESS SUCH INTERMEDIATE PROCESSING IS CARRIED OUT IN THE ESTABLISHMENT WHERE THE PROCESSING INTO PRODUCTS SPECIFIED IN ARTICLE 4 TAKES PLACE .
2 . HOWEVER , IN THE CASE OF CONCENTRATED BUTTER AS REFERRED TO IN ARTICLE 5 ( 1 ) AND ( 2 ), MEMBER STATES MAY PERMIT INTERMEDIATE PROCESSING AS REFERRED TO IN PARAGRAPH 1 IN AN ESTABLISHMENT OTHER THAN THAT IN WHICH IS CARRIED OUT FINAL PROCESSING INTO PRODUCTS REFERRED TO IN ARTICLE 4 , SUBJECT TO THE FOLLOWING CONDITIONS :
( A ) THE ESTABLISHMENT IN WHICH INTERMEDIATE PROCESSING IS CARRIED OUT AND THE ESTABLISHMENTS IN WHICH FINAL PROCESSING IS CARRIED OUT MUST BE PREVIOUSLY APPROVED FOR THIS PURPOSE , ON THEIR JOINT APPLICATION BY THE COMPETENT AUTHORITY OF THE MEMBER STATE CONCERNED . FOR PURPOSES OF THIS PARAGRAPH , THE COUNTRIES OF THE BELGO-LUXEMBOURG ECONOMIC UNION SHALL BE CONSIDERED AS A SINGLE MEMBER STATE .
WITHOUT PREJUDICE TO ADDITIONAL REQUIREMENTS LAID DOWN BY THE MEMBER STATE FOR THE PURPOSE OF PERMITTING AN EFFECTIVE CHECK ON THE END-USE OF THE CONCENTRATED BUTTER , AN ESTABLISHMENT MAY BE APPROVED AS AN ESTABLISHMENT FOR INTERMEDIATE PROCESSING OR AS AN ESTABLISHMENT FOR FINAL PROCESSING ONLY IF IT UNDERTAKES TO KEEP PERMANENT STOCK RECORDS SETTING OUT :
- IN THE CASE OF ESTABLISHMENTS CARRYING OUT INTERMEDIATE PROCESSING , THE QUANTITIES OF CONCENTRATED BUTTER EMPLOYED AND THE QUANTITIES , NATURE AND BUTTERFAT CONTENT OF THE INTERMEDIATE PRODUCT OBTAINED , TOGETHER WITH THE NAME AND ADDRESS OF THE ESTABLISHMENT IN WHICH FINAL PROCESSING IS TO BE CARRIED OUT ,
- IN THE CASE OF ESTABLISHMENTS CARRYING OUT FINAL PROCESSING , THE QUANTITIES NATURE AND BUTTERFAT CONTENT OF THE INTERMEDIATE PRODUCT EMPLOYED FOR FINAL PROCESSING , AND THE QUANTITIES AND BUTTERFAT CONTENT OF THE PRODUCTS OBTAINED AS A RESULT OF SUCH PROCESSING , TOGETHER WITH THE NAME AND ADDRESS OF THE SUPPLIER INTERMEDIATE ESTABLISHMENT .
( B ) THE JOINT APPLICATION FOR APPROVAL AND THE APPROVAL ITSELF ISSUED TO EACH OF THE ESTABLISHMENTS CONCERNED SHALL STATE IN PARTICULAR :
- THE NAMES AND ADDRESSES OF THOSE ESTABLISHMENTS ,
- THE NATURE OF THE INTERMEDIATE PRODUCT WHICH MAY BE MANUFACTURED BY THE ESTABLISHMENT OF INTERMEDIATE PROCESSING AND USED BY THE ESTABLISHMENT OR ESTABLISHMENTS CARRYING OUT FINAL PROCESSING .
MEMBER STATES WHICH MAKE USE OF THIS PARAGRAPH SHALL DETERMINE THE NATURE OF THE INTERMEDIATE PRODUCT OR PRODUCTS WHICH MAY BE MANUFACTURED AND USED .
APPROVAL SHALL BE WITHDRAWN FROM ANY ESTABLISHMENT IN RESPECT OF WHICH A SERIOUS BREACH OF THE PROVISIONS OF THIS REGULATION AND/OR OF ADDITIONAL NATIONAL PROVISIONS ADOPTED IN THIS MATTER IS ASCERTAINED .
( C ) THE COMPETENT AUTHORITY SHALL SUBMIT THE ESTABLISHMENTS APPROVED IN ACCORDANCE WITH ( A ) AND ( B ) TO THE INSPECTION PROCEDURE PROVIDED FOR IN ARTICLE 21 . SUCH INSPECTIONS SHALL INVOLVE FREQUENT , AND THOROUGH AND PREVIOUSLY UNANNOUNCED CHECKS , CARRIED OUT WITHOUT PRIOR NOTICE ON THE COMMERCIAL DOCUMENTS AND SPECIFIC STOCK RECORDS REFERRED TO IN ( A ), BOTH OF THE ESTABLISHMENT OF INTERMEDIATE PROCESSING AND OR THOSE IN WHICH FINAL PROCESSING IS CARRIED OUT .
( D ) HOWEVER , IN THE CASE OF ESTABLISHMENTS OF FINAL PROCESSING USING MONTHLY A QUANTITY NOT EXCEEDING 200 KILOGRAMS OF CONCENTRATED BUTTER IN THE FORM OF INTERMEDIATE PRODUCTS :
- APPROVAL AS REFERRED TO IN ( A ) SHALL NOT BE REQUIRED ,
- THE FIRST SUBPARAGRAPH OF ARTICLE 22 ( 3 ) SHALL APPLY .
( E ) AS REGARDS TRANSPORT OF THE INTERMEDIATE PRODUCT , THE PROVISIONS OF ARTICLE 6 SHALL APPLY , WITH THE WORDS " CONCENTRATED BUTTER " ON THE PACKAGING BEING REPLACED BY " SEMI-FINISHED PRODUCT " .
3 . FURTHER PROCESSING OF THE PRODUCTS SPECIFIED IN ARTICLE 4 SHALL BE PERMITTED ONLY IF THE PRODUCTS OBTAINED FALL WITHIN ONE OF THE TARIFF HEADINGS REFERRED TO IN THAT ARTICLE AND IF NO PRODUCT FALLING WITHIN ANY OTHER HEADING IS PRODUCED AT AN INTERMEDIATE STAGE OF SUCH PROCESSING . '
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 APRIL 1980 .
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****
( 1 ) OJ NO L 148 , 28 . 6 . 1968 , P . 13 .
( 2 ) OJ NO L 204 , 28 . 7 . 1978 , P . 6 .
( 3 ) OJ NO L 213 , 11 . 8 . 1975 , P . 15 .
( 4 ) OJ NO L 24 , 31 . 1 . 1980 , P . 18 .
( 5 ) OJ NO L 43 , 15 . 2 . 1977 , P . 1 .
( 6 ) OJ NO L 181 , 18 . 7 . 1979 , P . 20 .
( 7 ) OJ NO L 46 , 21 . 2 . 1980 , P . 14 .
( 8 ) OJ NO L 28 . 5 . 2 . 1969 , P . 1 .
COMMISSION REGULATION ( EEC ) NO 646/80
OF 17 MARCH 1980
AMENDING FOR THE 11TH TIME REGULATION ( EEC ) NO 2044/75 AND AMENDING REGULATION ( EEC ) NO 210/69 AS REGARDS EXPORT LICENCES AND CERTIFICATES FOR BUTTER , BUTTEROIL AND SKIMMED-MILK POWDER EXPORTED PURSUANT TO REGULATIONS ( EEC ) NO 303/77 AND ( EEC ) NO 400/80
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 1761/78 ( 2 ), AND IN PARTICULAR ARTICLES 13 ( 3 ) AND 17 ( 4 ) THEREOF ,
WHEREAS ARTICLE 2 OF COMMISSION REGULATION ( EEC ) NO 2044/75 ( 3 ), AS LAST AMENDED BY REGULATION ( EEC ) NO 203/80 ( 4 ), PROVIDES IN PARTICULAR THAT , HENCEFORTH , FOR ANY EXPORT OF BUTTER , BUTTEROIL AND CERTAIN SKIMMED-MILK POWDERS , THE PRODUCTION OF AN EXPORT LICENCE IS NECESSARY ;
WHEREAS , IN RESPECT OF THE PRODUCTS IN QUESTION EXPORTED AS FOOD AID IN ACCORDANCE WITH COMMISSION REGULATION ( EEC ) NO 303/77 ( 5 ), AS LAST AMENDED BY REGULATION ( EEC ) NO 1488/79 ( 6 ), NO REFUND OR COMPENSATORY AMOUNT IS APPLIED ; WHEREAS BUTTER EXPORTED PURSUANT TO COMMISSION REGULATION ( EEC ) NO 400/80 ( 7 ) IS NOT ELIGIBLE FOR A REFUND EITHER ; WHEREAS SPECIAL RULES ARE LAID DOWN WITH REGARD TO THE MONETARY COMPENSATORY AMOUNT ;
WHEREAS , IN ORDER THAT ACCOUNT MAY BE TAKEN OF THESE SPECIAL ARRANGEMENTS AT THE TIME OF EXPORT , IT APPEARS NECESSARY FOR EXPORT LICENCES ISSUED IN SUCH CASES TO BEAR AN APPROPRIATE FORM OF WORDING ;
WHEREAS THE RELEVANT REGULATIONS ALREADY PROVIDE FOR EFFECTIVE GUARANTEES TO ENSURE THAT THE EXPORTS ARE ACTUALLY CARRIED OUT ; WHEREAS IT IS NOT THEREFORE NECESSARY TO REQUIRE THE SECURITY REFERRED TO IN ARTICLE 11 ( 2 ) OF REGULATION ( EEC ) NO 2044/75 ; WHEREAS THE EXPORTS INVOLVED ARE NOT RELEVANT TO THE DAILY COMMUNICATIONS TO BE SENT TO THE COMMISSION PURSUANT TO ARTICLE 6 ( 1 ) OF COMMISSION REGULATION ( EEC ) NO 210/69 ( 8 ), AS LAST AMENDED BY REGULATION ( EEC ) NO 203/80 ; WHEREAS IT IS THEREFORE APPROPRIATE TO DEROGATE FROM THIS PROVISION IN THIS PARTICULAR CASE ;
WHEREAS THE MEASURES PROVIDED FOR IN THIS REGULATION ARE IN ACCORDANCE WITH THE OPINION OF THE MANAGEMENT COMMITTEE FOR MILK AND MILK PRODUCTS ,
HAS ADOPTED THIS REGULATION :
ARTICLE 1
REGULATION ( EEC ) NO 2044/75 IS AMENDED AS FOLLOWS :
1 . IN ARTICLE 2 , THE FOLLOWING PARAGRAPH 4 IS ADDED :
' 4 . THE APPLICATION FOR THE LICENCE REFERRED TO IN PARAGRAPH 3 AND THE LICENCE ITSELF SHALL BEAR :
( A ) IN THE CASE OF AN EXPORT UNDER REGULATION ( EEC ) NO 303/77 , IN SECTION 12 , ONE OF THE FOLLOWING FORMS OF WORDING :
- ' FOOD AID ( REGULATION ( EEC ) NO 303/77 ) ' ,
- ' FOEDEVAREHJAELP ( FORORDNING ( EOEF ) NR . 303/77 ) ' ,
- ' AIDE ALIMENTAIRE ( REGLEMENT ( CEE ) NO 303/77 ) ' ,
- ' NAHRUNGSMITTELHILFE ( VERORDNUNG ( EWG ) NR . 303/77 ) ' ,
- ' AIUTO ALIMENTARE ( REGOLAMENTO ( CEE ) N . 303/77 ) ' ,
- ' AIUTO ( VERORDENING ( EEG ) NR . 303/77 ) ' ;
( B ) IN THE CASE OF AN EXPORT UNDER REGULATION ( EEC ) NO 400/80 , IN SECTION 12 , ONE OF THE FOLLOWING FORMS OF WORDING , AS APPROPRIATE :
- ' DESTINATION ZONE C 1 ' OR ' DESTINATION ZONE C 2 ' ,
- ' DESTINATION ZONE C 1 ' ELLER ' DESTINATION ZONE C 2 ' ,
- ' BESTIMMUNG ZONE C 1 ' ODER ' BESTIMMUNG ZONE C 2 ' ,
- ' DESTINATION ZONE C 1 ' OU ' DESTINATION ZONE C 2 ' ,
- ' DESTINAZIONE ZONA C 1 ' O ' DESTINAZIONE ZONA C 2 ' ,
- ' BESTEMMING ZONE C 1 ' OF ' BESTEMMING ZONE C 2 ' ,
TOGETHER WITH A REFERENCE TO REGULATION ( EEC ) NO 400/80 ;
( C ) ALSO , IN THE CASES REFERRED TO IN ( A ) AND ( B ), IN SECTION 13 , A REFERENCE TO THE COUNTRY OF DESTINATION .
THE LICENCES REFERRED TO IN THIS PARAGRAPH SHALL :
- BEAR , IN SECTION 18 , ONE OF THE FOLLOWING FORMS OF WORDING :
- ' TO BE EXPORTED WITHOUT REFUND ' ,
- ' EKSPORTERES UDEN RESTITUTION ' ,
- ' AUSFUHR OHNE ERSTATTUNG ' ,
- ' A EXPORTER SANS RESTITUTION ' ,
- ' ESPORTATI SENZA RESTITUZIONE ' ,
- ' UITVOER ZONDER RESTITUTIE ' ;
- APPLY ONLY IN RESPECT OF AN EXPORT TO BE CARRIED OUT UNDER THE REGULATIONS CONCERNED .
2 . THE FOLLOWING PARAGRAPH 3 IS ADDED TO ARTICLE 11 :
' 3 . HOWEVER , NO SECURITY NEED BE LODGED IN THE CASE OF AN EXPORT LICENCE FOR A TRANSACTION COMING WITHIN THE TERMS OF ARTICLE 2 ( 4 ). '
ARTICLE 2
THE FOLLOWING SUBPARAGRAPH IS ADDED TO ARTICLE 6 ( 1 ) OF REGULATION ( EEC ) NO 210/69 :
' THE EXPORT LICENCES REFERRED TO IN ARTICLE 2 ( 4 ) OF REGULATION ( EEC ) NO 2044/75 SHALL NOT BE THE SUBJECT OF A COMMUNICATION PURSUANT TO THIS REGULATION . '
ARTICLE 3
THIS REGULATION SHALL ENTER INTO FORCE ON 1 APRIL 1980 .
EXPORT LICENCES ISSUED PRIOR TO THE ENTRY INTO FORCE OF THIS REGULATION MAY BE USED FOR EXPORTS WITHIN THE MEANING OF ARTICLE 2 ( 4 ) ( A ) AND ( B ) OF REGULATION ( EEC ) NO 2044/75 .
THIS REGULATION SHALL BE BINDING IN ITS ENTIRETY AND DIRECTLY APPLICABLE IN ALL MEMBER STATES .
DONE AT BRUSSELS , 17 MARCH 1980 .
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COMMISSION REGULATION (EC) No 761/2006
of 18 May 2006
fixing the export refunds on cereals and on wheat or rye flour, groats and meal
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 in 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)
As far as wheat and rye flour, groats and meal are concerned, when the refund on these products is being calculated, account must be taken of the quantities of cereals required for their manufacture. These quantities were fixed 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 the detailed rules set out above to the present situation on the market 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 the products listed in Article 1(a), (b) and (c) of Regulation (EC) No 1784/2003, excluding malt, exported in the natural state, shall be as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 19 May 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 May 2006.
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COMMISSION DECISION
of 18 February 2004
on restructuring aid implemented by Germany for Bankgesellschaft Berlin AG
(notified under document number C(2004) 327)
(Only the German text is authentic)
(Text with EEA relevance)
(2005/345/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 regard to Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1), and in particular Article 7(3) thereof,
Having called on Member States and other interested parties to submit their comments (2) and having regard to their comments,
Whereas:
I. PROCEDURE
(1)
After approval of the rescue aid for Bankgesellschaft Berlin AG (BGB or ‘the bank’) by Commission decision of 25 July 2001 (3) and after notification by Germany of the restructuring plan on 28 January 2002, the Commission informed Germany by letter of 9 April 2002 of its decision to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the restructuring aid (4).
(2)
On 17 June 2002, after Germany had requested an extension of the deadline for a reply, which was granted, and after German representatives had twice met representatives of the Commission, Germany submitted its observations, with additional documents and information. On 31 July the Commission sent Germany a further request for information.
(3)
When it published its decision to initiate the procedure in the Official Journal of the European Communities (5), the Commission also called on other interested parties to submit their comments. On 9 July and, after it had extended the deadline, on 22 July 2002, it received observations from a competitor and from another interested party who requested that his identity remain confidential. On 1 August these observations were forwarded to Germany for comment. Germany’s comments were received, after extension of the deadline, on 23 September.
(4)
In response to Commission requests, Germany supplied further information on the notified aid measure by letters dated 16 and 20 September, 14 and 18 November and 18 December 2002 and 14 February and 14 March 2003. The Commission was also informed of the stage reached in the restructuring process at a number of meetings with representatives of Germany, the Land of Berlin and BGB.
(5)
At a meeting held on 26 March 2003, Germany informed the Commission of the reasons of the previous day’s failure of the call for bids with a view to the privatisation of Bankgesellschaft Berlin AG, for which an international public tender had been launched back in 2002. On 31 March further information on this point was supplied, as were the balance sheet and profit-and-loss account for 2002.
(6)
The Commission made further requests for information on 15 April, 6 May and 16 May 2003, which were answered on 15 May, 28 May and 24 June respectively. Further information was discussed in a letter of 1 July and at meetings with representatives of Germany, the Land of Berlin and BGB which took place on 4 April, 11 April, 14 May and 9 July.
(7)
On 14 July 2003 the Commission asked the auditing firm Mazars Revision & Treuhandgesellschaft mbH, Wirtschaftsprüfungsgesellschaft, Düsseldorf, as a consultant, to analyse certain aspects of the restructuring plan. The conclusions were discussed with Germany on 3 October, and the final report was presented to Germany on 20 November 2003.
(8)
In October 2003 the need for further compensatory measures was discussed, partly in the presence of representatives of the bank. In November the Commission informed Germany of the measures it was contemplating and gave it and the bank the opportunity to comment on the financial implications for the bank, which were discussed in December. On 18 December 2003 it was agreed that Germany would give the Commission an undertaking to divest Berliner Bank separately by 1 October 2006, the sale being effective no later than 1 February 2007, and to privatise the group by 31 December 2007, together with other divestment measures.
(9)
Germany submitted to the Commission on 29 January 2004 the revised restructuring plan, which took account in particular of the recommendations of the Commission’s consultants, and on 6 February the commitments relating to the revised restructuring plan.
II. DESCRIPTION OF THE AID
(10)
BGB is the holding company that owns the BGB group, which was formed in 1994 by the amalgamation of several credit institutions formerly controlled by the Land of Berlin; BGB also does business as a credit institution in its own right. In 2000 BGB had a group balance sheet total of about EUR 205 billion in 2000, about EUR 189 billion in 2001 and about EUR 175 billion in 2002. This put it in tenth place among German banks in 2001 and in twelfth place in 2002. It employed some 17 000 people in 2000, a little over 15 000 in 2001 and about 13 000 in 2002. For the purposes of the Banking Law (Kreditwesengesetz), its core-capital ratio was 5,7 % at the end of 2001 (total capital ratio of 9,4 %), while at the end of 2002 its core-capital ratio was 5,6 % (total capital ratio of 9,4 %). In June 2001, before the rescue aid was approved, the core-capital ratio had fallen to [...]* (6) % (total capital ratio of [...]** %).
(11)
Before the capital injection of August 2001, the Land of Berlin held 56,6 % of the shares in BGB; it now has about 81 %. Other shareholders are Norddeutsche Landesbank (NordLB), with about 11 %, and Gothaer Finanzholding AG, with about 2 %. About 6 % of the equity is in dispersed ownership.
(12)
The largest subsidiaries or divisions in the BGB group, which likewise engage in banking, are Landesbank Berlin (LBB) and Berlin-Hannoversche Hypothekenbank AG (BerlinHyp). LBB is an institution established under public law in which BGB has an atypical undisclosed holding (atypisch stille Beteiligung) of 75,01 %. There is a profit-and-loss transfer agreement which means that, in economic terms, BGB can be deemed to be LBB’s sole owner. BerlinHyp engages in real estate financing; BGB owns 89,9 % of the equity.
(13)
The group also includes IBAG Immobilien und Beteiligungen Aktiengesellschaft (IBAG), which operates in the real estate services business previously handled by Immobilien und Baumanagement der Bankgesellschaft Berlin GmbH (IBG). Directly or indirectly, BGB also controls or has controlled various other domestic and foreign firms, such as Weberbank, Allgemeine Privatkundenbank AG (Allbank, now sold), BGB Ireland, BGB UK, BG Polska (the retail and Inteligo internet businesses have now been sold, and liquidation of the remaining shell has begun) and the Czech bank Zivnostenska Banka a.s. (now sold).
(14)
BGB’s core business is retail banking for private and corporate customers, where it trades under the two names Berliner Sparkasse and Berliner Bank. These are not legally independent subsidiaries, but rather brands or branches. Since 1 July 2003 Berliner Bank has belonged to LBB, as Berliner Sparkasse already did (7). The corporate clients are mainly small and medium-sized enterprises in the region.
(15)
Apart from retail banking, real estate financing and real estate services, BGB and its subsidiaries also operate on capital markets (money and securities dealings) and in two segments which are to be run down or drastically cut back, the large customer/international segment (e.g. project and export financing) and the public sector segment (lending). The investment banking business comprised only some relatively limited share and bond issues and will play no further independent role in future. Geographically, BGB’s business is concentrated in the Berlin area and the Land of Brandenburg, especially as far as retail banking is concerned. But it does also operate countrywide, e.g. in real estate financing, and internationally, e.g. on capital markets.
(16)
In the Berlin area BGB is the market leader in retail banking, with shares of individual segments ranging from about 20 % to over 50 % (8). In terms of first giro accounts held by private customers, it estimates its own market share or penetration in 2002 at 48 % (9). In terms of nationwide real estate financing (all mortgage lending), according to the information supplied with the notification, BGB had a market share of about 5 % in 2000, which put it in third place. According to more recent information, its ranking is not as high, or has fallen back in the meantime (10). On 31 December 2001 BGB’s portfolio of mortgages amounted to EUR 33 billion, of which 90 % was in Germany, and the rest related to real estate financing abroad. In other lines of business, BGB is not among the leading banks either inside Germany or internationally. Precise figures for market and segment shares here are not available.
(17)
The difficulties at BGB that publicly emerged in 2001 had their origin in the first place in real estate services but also in real estate financing. Two important components in the real estate services provided in the 1990s by BGB’s subsidiary IBG were real estate funds, project development and building work. IBG was set up at the beginning of the 1990s as a subsidiary of LBB; in the second half of the 1990s the shareholders were BGB itself (10 %), Berliner Bank AG (30 %), LBB (30 %) and BerlinHyp (30 %). Berliner Bank AG was then merged into BGB AG, and BGB AG inherited Berliner Bank’s shares in IBG. The ownership structure is currently as follows: 40 % BGB, 30 % LBB and 30 % BerlinHyp.
(18)
Prior to 2000 IBG set up an increasing volume of real estate funds. Investors in these funds were given extensive guarantees, particularly long-term guarantees regarding rent, dividends and renewal. In order to set up new funds, new property was acquired or built. The guarantees were based on an expectation that property values would be high or indeed rising, which meant that risks accumulated as prices and rents in fact dropped, especially in Berlin and the new Länder.
(19)
When these problems began to emerge in the course of 2000, BGB considered selling IBG’s main business. In December 2000, therefore, the bulk of IBG’s business was transferred to the newly set-up IBAG, with the exception of ‘old’ risks and liabilities occasioned by IBG and its subsidiaries, which were transferred to the newly set-up LPFV Finanzbeteiligungs- und Verwaltungs-GmbH (LPFV). But the plans to sell IBAG came to nothing. Both IBAG and LPFV are now wholly owned subsidiaries of BGB. The old IBG kept only a few peripheral lines of business.
(20)
Further problems arising in this period concerned real estate financing, carried on mainly by BerlinHyp but also by LBB and BGB itself. This comprises the granting of loans to finance large property projects, especially commercial projects, rather than the granting of mortgage loans to finance private housing, which falls within the retail banking business. As the property market slackened, there were increasing difficulties in real estate financing, as a result in particular of a level of risk provisions that had not been adequate.
(21)
In the first half of 2001 BGB found itself in acute difficulty. The main causes were loan defaults in real estate financing and guarantee obligations on IBG/IBAG/LPFV that were falling due in the funds business, for which provisions of about EUR 1 billion had to be set aside at the end of 2000, along with the need to adjust the value of building projects in progress and to increase risk provision in real estate financing. In May BGB's own-funds ratio fell below the 8 % required by law. The shortfall that needed to be made up to reach a core-capital ratio of 5 % and thus to return to the own-funds ratio of 9,7 % that had obtained before the crisis was estimated at the time at about EUR 2 000 million. The Land of Berlin issued in May 2001 a declaration of intent guaranteeing that the necessary capital would be injected. The Commission authorised the aid as rescue aid, and in August 2001 BGB received a capital injection of exactly EUR 2 000 million: EUR 1 755 million from the Land of Berlin, EUR 166 million from NordLB, EUR 16 million from Parion (Gothaer Finanzholding AG) and EUR 63 million from small shareholders.
(22)
In the months following, however, further risks were identified, especially in the real estate services operated by IBAG/IBG/LPFV. There was a danger that BGB’s capital might once again fall below the required minimum solvency ratios. These risks arose once again out of the guarantee obligations in the real estate funds business and the sinking value of property that had been bought with a view to the setting up of new funds (reserve property). According to the information supplied by Germany, the interlocking profit-and-loss transfer agreements, guarantees and loans within the group made BGB liable for the bulk of these risks.
(23)
In November 2001 the then Federal Credit Business Supervisory Office (Bundesaufsichtsamt für das Kreditwesen, ‘BAKred’) (11) threatened BGB with temporary closure if it did not take measures to provision these risks by the end of 2001. On 20 December 2001, therefore, the Land of Berlin, BGB, LBB, BerlinHyp, IBAG, IBG and LPFV concluded an agreement in principle to cover these risks by means of comprehensive guarantees. The agreement in principle was replaced by a detailed agreement finally concluded on 16 April 2002. The guarantees assumed in this agreement were known as the ‘risk shield’ (Risikoabschirmung); they are described in more detail below.
(24)
The aid measures form part of the restructuring plan initially submitted in January 2002 and revised in the course of the investigation procedure, most recently in January 2004; the plan provides for a substantial reduction in the BGB group’s business and a concentration on private and corporate customers in the Berlin area. The capital market business and real estate financing are also to continue, though on a smaller scale (see paragraph 172 et seq.). Other areas, such as large customers and international business, including structured finance and mergers and acquisitions consultancy, are to be wound up, and others again, such as public sector business, are to be cut back drastically. Initially, real estate services were also to continue. But at an early stage in the procedure Germany undertook to see to it that this area was hived off and transferred to the Land of Berlin (see paragraph 277 and 278). With a view to reducing BGB’s very large share of the Berlin retail market, Germany has also undertaken to sell Berliner Bank separately.
(25)
As already mentioned, the Land of Berlin’s shares in BGB are to be sold. The Commission has received a commitment to this effect. As part of the privatisation of BGB, BerlinHyp will be sold either together with BGB or separately (see paragraph 285). IBB is to cut its ties with BGB, and IBB’s special reserve (being the capital of the old Wohnungsbau-Kreditanstalt (WBK) transferred to LBB as described above) is to be repaid to the Land of Berlin, in so far as this does not result in a core-capital ratio of less than 6 % or a total capital ratio of less than 9,7 % on the reference date of 1 January 2004 (see paragraph 279).
(26)
One component of the restructuring aid notified on 28 January 2002 is the capital injection of EUR 1,755 million granted by the Land of Berlin as rescue aid in August 2001, following the authorisation given by the Commission on 25 July 2001 (12); BGB is now to retain this amount as restructuring aid.
(27)
The other component of the restructuring aid is the ‘risk shield’ already referred to, which was agreed in principle in December 2001 by the Land of Berlin, BGB, LBB, BerlinHyp, IBAG, IBG and LPFV, and subsequently modified, supplemented and superseded by a detailed agreement concluded on 16 April 2002. The risk shield comprises the following guarantees, which are given by the Land of Berlin for 30 years in order to cover the risks arising out of the real estate services business carried on by the subsidiaries IBAG, IBG and LPFV:
-
Loan guarantees: BGB, LBB and BerlinHyp are guaranteed the contractual interest and capital repayments on loans granted by them to IBAG, IBG and their subsidiaries and certain other companies up to 31 December 2001. The companies and loans concerned are listed exhaustively in the annexes to the detailed agreement, which also lays down restrictions in respect of certain loans and a number of express exclusion clauses (negative list).
-
Book value guarantees: IBAG, IBG and certain other companies in the group, primarily direct and indirect subsidiaries of IBAG and IBG, are guaranteed the value of the individual assets entered in the relevant audited balance sheet, with the exception of certain designated items such as intangible assets, cash, balances at the Bundesbank and credit institutions, and prepayments and deferred income (Rechnungsabgrenzungsposten). These book value guarantees are likewise subject to restrictions and exclusions (negative list).
-
Performance obligations taken over from LPFV: LPFV is indemnified in respect of obligations arising out of the earlier real estate business of IBG and its previous subsidiaries Bavaria, Arwobau and Immobilien-Beteiligungsvertriebsgesellschaft der Bankgesellschaft Berlin GmbH (‘IBV’): LPFV is liable for the first EUR 100 million, and thereafter such obligations are taken over by the Land. This does not apply to obligations in respect of funds newly set up after 31 December 2000 or in respect of new IBAG business described in the detailed agreement.
-
BGB indemnified in respect of guarantees: BGB is indemnified in respect of all obligations arising out of the guarantees it gave up to 31 December 1998 on transactions entered into by IBG, IBV and Bavaria. Like the preceding indemnity, this does not apply to obligations in respect of funds set up after 31 December 2000 or in respect of new IBAG business described in the detailed agreement.
(28)
Article 45 of the detailed agreement sets the maximum liability that may be incurred by the Land of Berlin as a result of these obligations at EUR 21,6 billion. It states that this is the theoretical nominal value of the risks covered, adjusted for duplication. In the agreement in principle, the ceiling was set at EUR 35,34 billion because the guarantees listed above sometimes covered the same risks. Article 45 explains that, where an outside creditor puts forward a claim under a rent guarantee, the Land may, for example, be liable both under the performance obligation taken over from LPFV and under the indemnity given to BGB in respect of guarantees. The detailed agreement states that, in such cases, the Land will be liable only once. The theoretical ceiling is therefore adjusted for such duplication, and this reduces it to EUR 21,6 billion. According to the provisional calculations submitted by Germany, the largest item in the EUR 21,6 billion figure is the performance obligation taken over from LPFV: it amounts to EUR [...]**, comprising EUR [...]** to indemnify LPFV in respect of liabilities arising out of rent and dividend guarantees and EUR [...]** to indemnify it in respect of risks arising out of the renewal guarantees for buildings.
(29)
However, this theoretical ceiling is based on the assumption that all the risks will, in fact, materialise in full. For the indemnity given to LPFV in respect of rent guarantees (ceiling of EUR [...]**), this means, for example, that all rents until 2025 would remain unpaid, and, for the indemnity given to LPFV in respect of renewal guarantees (EUR [...]**), it would mean that all buildings would have to be replaced in their entirety. However, even on very pessimistic assumptions, a 100 % rent default and the demolition and reconstruction of all buildings concerned is not realistic. Article 45 accordingly also states that, on the information currently available and after careful examination of the main economic risks, the probable rate of take-up can be put substantially lower. The real risk is estimated at EUR 2,7 billion in the best-case scenario, at EUR 3,7 billion in the base-case scenario and at EUR 6,1 billion in the worst-case scenario. The assumptions on which these estimates are based were communicated in the course of the procedure (see paragraph 138).
(30)
In order to minimise the liability arising out of the guarantees, the detailed agreement also provides that the Land may entrust contract management under the detailed agreement wholly or partly to a third party. The Land has availed itself of this possibility and has set up a company wholly owned by it, BCIA Berliner Gesellschaft zum Controlling der Immobilien-Altrisiken mbH, which has been conducting this business on the Land’s behalf since January 2003. The detailed agreement also provides for a guarantee commission and a better-fortunes clause for 15 years. According to this, the Land receives from BGB an annual fixed guarantee commission of EUR 15 million until 2011 inclusive, which can as of 2012 be adapted for the remaining duration of the risk shield by mutual agreement between the parties. Moreover, if in one or more months of a financial year BGB achieves an own capital ratio of 12,5 % and a core-capital ratio of 7 %, BGB will pay 15 % of its annual profit to the Land of Berlin.
(31)
The Law empowering the Land Government to issue a guarantee (13) provides that the shares in BGB held by the Land of Berlin are to be sold as rapidly as possible on terms fair to the Land and that, as part of a reorganisation of BGB’s ownership structure, Investitionsbank Berlin (IBB) is to have its ties with BGB cut, leaving it as a separate development bank established under public law (see below).
(32)
In its decision to initiate the procedure in the present case (14), the Commission also drew attention to an important fact that had not been taken into account in the initial restructuring plan. At the end of 1992 Wohnungsbau-Kreditanstalt (WBK) was transferred to LBB with all its assets; at the same time, all WBK’s functions were transferred to the newly set-up IBB. The transfer increased LBB’s own funds by about DEM 1,9 billion. From 1995 onwards, LBB paid a remuneration of 0,25 % of the amount taken up. As the Commission doubted whether this remuneration was compatible with the principle of the investor operating in a market economy, it initiated the investigation procedure (C 48/2002) in July 2002 (15). If the Commission were to conclude that the remuneration paid was not compatible with the principle of the market-economy investor and if none of the tests for compatibility laid down in the Treaty were met, the difference between the remuneration paid and the ordinary market return on such an investment would constitute state aid incompatible with the common market that would have to be repaid by LBB to the Land of Berlin.
(33)
The possibility that repayment might be required constitutes a substantial threat to the prospects for a restoration of profitability under the restructuring plan. In the decision initiating the procedure, therefore, the Commission asked Germany to identify an appropriate solution and noted that Germany was working on such a solution.
(34)
To meet this need, an agreement was concluded between the Land of Berlin and BGB on 23 December 2002, entitled the ‘Agreement on the treatment of any claims to repayment brought by the Land of Berlin arising out of state aid case C 48/2002 Landesbank Berlin - Girozentrale, currently being examined by the European Commission’ (the repayment agreement).
(35)
By this agreement the Land of Berlin undertakes that, in the event of a Commission decision requiring repayment, it will provide as a contribution to LBB’s capital a reorganisation grant to the value necessary to prevent the threatened repayment requirement from forcing LBB or the BGB group, or both, to fall below the minimum capital ratios specified in the agreement. The minimum ratios specified in the repayment agreement are a total capital ratio of 9,7 % and a core-capital ratio of 6 %. The agreement is subject to the suspensory condition that the Commission must approve such aid.
(36)
Although this measure had not yet been taken at the time of the decision to initiate the procedure, the risks arising from a possible repayment decision by the Commission were mentioned in the decision as a factor to be taken into account. The repayment agreement was finally concluded in order to take account of this misgiving. Given that this measure is essential to the success of the restructuring plan, the Commission considers it appropriate to assess this agreement together with the other aid measures, having been able to set the upper limit in this respect.
(37)
In its decision initiating the formal investigation procedure laid down in Article 88(2) of the EC Treaty, the Commission provisionally classified the measures under examination as state aid within the meaning of Article 87(1) of the EC Treaty and Article 61(1) of the EEA Agreement because they were granted through state resources and because, by improving the recipient’s financial position, they were likely to affect the economic position of competitors from other Member States (16) and consequently distorted or threatened to distort competition and affected trade between Member States.
(38)
On the basis of its provisional assessment, the Commission concluded that the aid had to be assessed in the light of the Community guidelines on state aid for rescuing and restructuring firms in difficulty (‘the guidelines’) (17) and that there were no other provisions of the Treaty or other Community guidelines that might render the aid compatible. It agreed with Germany that BGB was a firm in difficulty within the meaning of paragraph 2.1 of the guidelines, but it seriously doubted whether the aid measures were compatible with the common market.
(39)
Paragraphs 31 to 34 of the guidelines state that, in the case of all individual aid measures, the Commission will examine the restructuring plan to establish whether it is capable of restoring the long-term viability of the firm within a reasonable timescale and on the basis of reasonable assumptions.
(40)
The Commission took the view that in the restructuring plan initially submitted there was no explanation of future strategies on the market in investment banking. As regards future strategy in the real estate business, it wanted to see more detailed specification of the difference in costs between liquidation and continued operation of the real estate services subsidiary IBAG.
(41)
The Commission doubted whether the market assumptions in the initial restructuring plan and the forecasts of supply and demand were sufficiently precise to allow conclusions to be drawn regarding the prospects of success of the restructuring measures proposed. It was difficult to see on what market assumptions the restructuring measures were based.
(42)
The Commission also found that the information supplied by Germany with regard to the causes of the firm’s difficulties in the past was relatively superficial. The following three causes were cited: (a) bad loans; (b) the issue of extensive guarantees for real estate funds; and (c) the late introduction (1999) and slow implementation of systematic risk control. The information supplied was essentially a summary of the financial difficulties. Only one real reason for these difficulties was put forward, namely ineffective group and management structures, including the lack of an effective system of risk control. There was no in-depth analysis of these structures or of specific management shortcomings, such as the implications of state ownership. However, the Commission took the view that an analysis of this kind was necessary if there was to be a proper assessment of the prospects for the restructured BGB. It doubted therefore whether the causes of BGB’s difficulties were properly identified and addressed in the restructuring plan. It thus asked Germany to provide an in-depth analysis of past shortcomings and of future prospects and problems, in the context of group structures, management and supervisory methods, control and reporting patterns and techniques for the introduction of commercially based decision-making processes.
(43)
Germany spoke of negotiations with potential buyers with a view to a possible privatisation but gave no details of the procedures envisaged, the terms of sale or other relevant factors. The Commission therefore wondered whether privatisation, in whole or in part, was being seriously considered and whether, if privatisation did take place, it would be conducted by means of an open, transparent and non-discriminatory procedure.
(44)
The initial notification referred to target profitability of just 7 %. The Commission doubted whether this could really be reached, especially given the problematic institutional and management structure of the group, the unclear market assumptions on which the restructuring measures were based, and the continuation of the problematic real estate business. Even if 7 % profitability were to be achieved, the Commission doubted whether such a return on the capital invested was enough to be compatible with the principle of the market-economy investor.
(45)
The Commission also drew attention to the fact that the possibility of a claim for repayment resulting from the LBB case represented a substantial risk to the prospects of success of the restructuring plan and so, in the decision initiating the procedure, it called on Germany to come up with a solution.
(46)
The exception laid down in Article 87(3)(c) of the EC Treaty is subject to the condition that the aid does not adversely affect trading conditions to an extent contrary to the common interest. Paragraphs 35 to 39 of the guidelines state that measures must be taken to mitigate as far as possible any adverse effects of the aid on competitors. This condition usually involves limiting or reducing the company's presence on the relevant product markets by selling production capacity or subsidiaries or reducing activities. The limitation or reduction should be in proportion to the distortive effects of the aid and, in particular, to the relative importance of the firm on its market or markets.
(47)
The compensatory measures originally proposed, such as the divestment of major shareholdings, reductions in the financial services, debt finance and real estate businesses, in the number of subsidiaries and staff and in lending to public authorities, and the giving-up of branches and business with large and with foreign customers, were imposed in order to reduce BGB's balance-sheet total by 26 % (from EUR 190 billion to EUR 140 billion). Given the description of the compensatory measures, which was vague in parts, and their individual contribution to the desired effects on BGB's assets and employment situation, the Commission was not in a position to assess whether this entire effect could realistically be achieved or how the measures would affect BGB's future position in the markets or segments defined by Germany. It therefore needed detailed information as to the effect of each measure on BGB's assets, employment situation and future market/segment positions.
(48)
Even if the above reduction (26 % or EUR 50 billion of the balance-sheet total) were achieved in full, the Commission questioned whether it would be sufficient in view of the large amounts of aid and its practice in previous decisions on restructuring aid for banks. (18) In this connection, the Commission suggested that the legal minimum capital requirements could serve as a guide for assessing the appropriateness of the compensatory measures since a bank that was undercapitalised would have to reduce its activities accordingly (undercapitalisation of EUR 1 billion with a legal minimum capital ratio of 4 % would require a theoretical reduction of risk-adjusted assets of up to EUR 25 billion). Such ‘opportunity reductions’ could serve as a rough guide for the degree of market distortion and the corresponding compensatory measures required. According to this approach, the EUR 1,755 billion capital injection from the Land of Berlin in the summer of 2001 would alone correspond to a theoretical asset reduction of up to EUR 44 billion. However, the Commission pointed out that this guide should not be applied ‘mechanically’ but should be subject to discretion in order to take account of specific circumstances and factors important for the survival and viability of the bank.
(49)
When new risks were discovered following the capital injection, the solvency ratios again threatened to become insufficient. In order to avoid a new capital injection, the Land of Berlin opted for the solution of general guarantees by means of a risk shield. As a result, the guarantees have an effect similar to that of a capital injection. The problem with the risk shield, however, was that the amount of aid which would ultimately be granted was not clear. The nominal theoretical maximum specified in Article 45 of the detailed agreement is EUR 35,34 billion; when multiple coverage is taken out, the maximum is EUR 21,6 billion. This, however, is still a nominal value, i.e. it assumes full materialisation of all risks, something which is unlikely (see above). Consequently, for reasons of prudence, the Commission had to work with the only limit available, i.e. EUR 35,34 billion. Since this amount would though probably not be called in, it would be out of proportion to take it as a basis for establishing the necessary compensatory measures. The Commission was therefore unable to assess whether the proposed compensatory measures were sufficient in view of the amount of aid. It also had doubts that, even in the best-case scenario with aid of some EUR 3 billion in addition to the capital injection, the compensatory measures would suffice in the light of the above rough guide. Moreover, experience with restructuring cases had shown that best-case scenarios rarely came about.
(50)
The Commission stated that BGB’s extremely strong market position in retail banking at local and regional level would have to be taken into account when finally assessing the appropriateness of the compensatory measures. Given the absence of sufficient information, however, the Commission was not able to estimate the effects of the reduction measures on the individual markets or segments. However, the planned reduction in retail and corporate banking by way of the divestment of Weberbank and Allbank seemed relatively modest and would possibly be insufficient to mitigate the distortive effect of the aid. In view of the fact that BGB also appeared to be a key player on the real estate market, the Commission further wondered whether the reductions planned in this connection would be sufficient.
(51)
To summarise, the Commission lacked important information needed for a proper and sufficiently thorough assessment of the effects of the proposed compensatory measures. On the basis of the available facts, therefore, it had serious doubts as to whether the planned reduction measures would suffice to mitigate the distortive effects of the very large amount of aid, the exact amount of which or the ceiling for which could not even be established. Accordingly, BGB’s strong local and regional market position in the retail sector in particular also had to be taken into account.
(52)
Under paragraphs 40 and 41 of the guidelines, aid must be limited to the strict minimum needed to enable restructuring to be undertaken and to avoid providing the company with surplus cash which could be used for aggressive, market-distorting activities or even for expanding. The guidelines also state that aid beneficiaries will be expected to make a significant contribution to the restructuring plan from their own resources, including through the sale of assets that are not essential to the firm's survival.
(53)
On the basis of the available information, the Commission was not in a position to assess accurately whether the aid, the amount of which was not even clear, represented the strict minimum necessary and whether, for example, the risks in the course of the restructuring might have been overstated or whether measures had been or would be taken to rule out multiple risk coverage.
(54)
The Commission questioned whether the provisional authorisation as rescue aid of a core-capital ratio of 5 % and an own-funds ratio of 9,7 % and, as targets from 2003 onwards, a core-capital ratio of some 7,5 % and an own-funds ratio of some 12 % were really necessary for the firm’s survival, including a solid rating by the rating agencies. In this context, it also had doubts about whether BGB's own contribution through the sale of assets or subsidiaries not essential for the firm's long-term viability met the ‘significant contribution’ requirement in view of the large volume of aid granted even in the best-case scenario. Given the strong position of BGB, together with its subsidiaries and merged entities, on several markets and segments, it was questionable whether more and larger subsidiaries or assets could not be divested, not only from the viewpoint of compensatory measures but also as a serious own contribution in addition to taxpayers' money.
III. COMMENTS FROM GERMANY
(55)
Germany submitted its comments regarding the initiation of the state aid procedure on the basis of the restructuring plan at the time, which essentially still applied in the summer of 2003 and which formed the basis for the advisers' report for the Commission. At the Commission’s request, it subsequently provided further information in addition to the original restructuring plan, in particular regarding the following points of key importance for the Commission’s decision:
(56)
Investment banking would in future no longer be a strategic focus or target product of the capital market business, which would concentrate on fields with a high yield potential, such as customer business with share, interest and credit products and, to a lesser extent, own-account business, and would diminish still further in its importance.
(57)
The difference in costs between winding up and continuing the activities of IBAG was described in greater detail. The total costs of winding up comprised the operational liquidation costs (EUR [...]**) plus a balance-sheet shortfall. To determine the latter, a mock consolidated balance sheet was produced for three scenarios (best-case, real-case, worst-case), giving a figure of EUR [...]**, EUR [...]** and EUR [...]** respectively. To keep the firm going, on the other hand, the costs for the period from 2001 to 2005 would, depending on the scenario, amount to between EUR [...]** and EUR [...]** (for the real-case scenario, EUR [...]*)*. Winding up IBAG, as opposed to continuing its activities, would therefore, depending on the scenario, involve additional costs of between EUR [...]** and EUR [...]**. Moreover, winding up the firm would mean forgoing an annual positive profit contribution of EUR [...]** from 2006.
(58)
The market assumptions for the real estate and funds business were explained in greater detail. According to information from the Central Association of the German Construction Industry, after contracting slightly in 2002 by some 2 %, the volume of construction output for the whole of Germany would come close to stagnation in 2003. In residential construction there would be no turnaround (2003: decline of some 1 % after contracting by about 3 % in 2002), with the fall-off being much greater in the eastern than in the western Länder, owing to the surplus supply of accommodation. Commercial construction would see only a slight increase of about 1 % in 2003. The firm Bavaria’s capacity and turnover forecasts had been adjusted accordingly and a more targeted orientation adopted. In future, Bavaria would focus, in residential and commercial construction, on the top end of the market and, in view of the strong regional differentiation in residential development, on the regions of Hamburg, Munich, Stuttgart and Rhine-Main in western Germany. In the funds business, the closed funds segment was expected to grow significantly in future, following a decline in 2001. Real estate funds would continue to play a key role, with close on 50 % of the placing volume, as an alternative form of investment, with yields and risk between those of fixed-interest securities and shares. New IBV funds would be launched only for premium commercial buildings and would be accompanied by significantly reduced guarantees. This higher-quality real estate could also help to improve yield security, although in any event business would be cut by more than half overall.
(59)
Regarding the market assumptions for the retail sector, Germany explained that in the Berlin conurbation each bank branch looked after 4 000 inhabitants on average, which was significantly more than the average for Germany as a whole (1 400). Although there was not a surplus of branches in Berlin, it was to be expected that the number would drop further in the coming years on account of other channels such as call centres and the Internet. The plan for sustainable improvement in the profitability of the retail sector addressed both cost and yield. Key measures to lower costs included reducing branches according to current profitability, regional coverage and the estimated costs of closure/merger. The aim was to increase principal customer accounts per branch to [...]* at Berliner Sparkasse and [...]* at Berliner Bank by the end of 2003, as compared with an average of 2 300 customers in the case of direct competitors in Berlin. Further savings would result from the replacement of cost-intensive traditional cash-desk facilities by more modern facilities, thereby saving on 300 staff. Income could be increased still further by reallocating advice capacity to bring in the most attractive customer groups possible. Pure transactions business was to take place increasingly via online and self-service facilities, while branches should focus more on customer advice. The forecast of increased demand in the retail sector was based on information from the Landeszentralbank Berlin, broker reports and assessments by the Federal Statistical Office in recent years. As regards BGB’s market position in the individual segments of the local and regional retail sector, Germany supplied corrected figures showing lower volume-based market shares ranging from a little over 20 % to more than 40 % in Berlin (see paragraph 291 et seq.). The growth forecast for Berlin, which, as a structurally weak region, lagged behind the national average of 2,5 %, was 2 %. Germany explained that, despite market shares of around 40 % in the retail deposit sector, BGB could not be said to be in a dominant position since the Berlin retail market was very competitive and customers could move from one bank to another without significant cost or effort. Furthermore, savings were overrepresented, whereas BGB was underrepresented compared with its market penetration when it came to more sophisticated forms of investment such as time deposits, savings bonds, security deposit accounts and other complex products, such as insurance, on account of its overwhelmingly low-income customers.
(60)
The market assumptions for corporate banking were based, among other things, on broker reports and assessments by the Federal Statistical Office. Targeted portfolio management and the related exclusion of risk-bearing loans, the introduction of risk-geared pricing, and the focusing of business on the core segments of commercial customers and regional corporate banking would lead to a slight drop in the volume of loans from EUR [...]** to EUR [...]** despite average market growth in Berlin in the period 2001 to 2006 of 1 %. The reduction in risk assets was in order to avoid high cluster risks, especially in the large corporate customer segment (turnover of more than EUR 50 million). Outside Berlin, there would be a further reduction of EUR [...]**. The volume of deposits by corporate customers was expected, despite a targeted reduction in large-volume credit business through cross-selling, to remain more or less constant. For the regional and local corporate segments, Germany also supplied figures that had been adjusted downwards and showed market shares of a little over or just under 25 % in Berlin (see paragraph 291 et seq.). An average annual growth rate of 2 % was assumed for Berlin. Profitability would be significantly increased through the optimisation of marketing and service processes and the introduction of standard products. The number of locations was to be reduced from 73 to 35 across all customer segments. Improved contribution margins would result from a rearrangement of the Berliner Bank and Berliner Sparkasse price model by standardising (increased) lower limits and exhausting all cross-selling potential, together with greater division of labour among account managers.
(61)
What had led to the troubled real estate loans and the provision of guarantees in the real estate funds sector were, as already mentioned in the notification, the extremely optimistic expectations of a rise in the value of properties in Berlin and the new Länder following the unification of Germany. On the basis of these expectations, BGB had granted a large number of commercial real estate loans and, in the period prior to 1999, had set up increasingly large real estate funds with extensive guarantees for which, at the beginning of the real estate crisis in the late 1990s, a valuation adjustment and liability reserves were sorely needed. On account of incomplete implementation of an early-warning system to identify risks throughout the group and inadequate risk analysis at divisional level, these risks were not sufficiently recognised, with the result that countermeasures were not taken early enough. It was only in 2000, at the instigation of the group's executive board and auditors and on the basis of BAKred's special audit, that a value audit was conducted with stricter criteria, requiring the updating of numerous real estate data. It was established in the course of this audit that the form and practical implementation of the early-warning system did not yet meet legal requirements.
(62)
When in 1994 the various divisions were brought together under BGB’s roof, this was because the Land of Berlin, as shareholder, wanted to create a strategic entity with as many synergy effects as possible. It was not possible to set up a standardised institution under the Banking Law without forgoing, pursuant to Section 40 of that Law, the name ‘Berliner Sparkasse’ and BerlinHyp’s mortgage bond privilege. The absence of a single management feasible under company law meant that group-wide risk management could be introduced only in stages. There were also technical IT constraints and delays in establishing adequate data quality. Risk management received little support and had to compile risk-relevant data manually. It was therefore potentially always subject to error, was incomplete and was characterised by long lead times. Internal rating procedures were not validated using statistical methods.
(63)
The introduction of efficient risk monitoring and a new data bank system by the end of 2002, however, constituted an operational guarantee that future problems could be identified and corrected in time. All activities of the entire group relevant in credit risk terms were consolidated in a risk register data bank. These data formed the basis for a limit management system for assessing credit risks for their risk potential and subjecting them to various limits. An information platform was therefore available on a same-day basis for all credit risk assessments. On this basis, a new credit risk report was developed for the executive and supervisory boards. The rating procedures had been completely reworked in cooperation with the DSGV and the German Landesbanken. The extensive exchange of managerial staff and the reduction in areas from 63 to 34 also helped to improve risk control.
(64)
Simplifying the group and management structures and introducing efficient control systems involved, among other things, structural improvements in the areas of corporate governance, risk control, control/management of the real estate services subsidiaries and alignment of the IT infrastructure. Under the new structure, BGB itself would in future cover wholesale and real estate financing activities and centralise the staff. Landesbank Berlin would combine all marketing activities, including the entire corporate and private retail segment, but with the exception of the wholesale business and commercial real estate financing. The objective of a single management for the group had largely been achieved. Measures to improve structural and operational processes consisted in the appointment of a Risk Review Committee to conduct a comprehensive analysis of all the group’s risks, the establishment of an independent risk register area to assess operational risks and the setting up of risk management units in the corporate banking and real estate financing business areas. A project team was also set up to deal with problems identified in audit reports. Existing loans at significant risk would in future be monitored centrally by the risk management area to improve risk assessment.
(65)
Target yields before tax of around 6 to 7 % (according to the original notification) or [...]** % (according to the revised medium-term plan of 24 June 2003) for BGB in 2006 were sufficient. Yield rates before tax in Germany in the period from 1995 to 2000 ranged from 12,6 % to 17,6 % for regional banks/savings bank and from 13 % to 16,5 % for all banks (top 100). Over time, however, a reduction in equity return could be observed. In the regional banks/savings bank sector in particular, it had fallen from 17,6 % in 1995 to 12,6 % in 2000. Given the worsening of the economic situation that followed and the faltering consolidation process in Germany, the figures in the following years remained lower, ranging from 7 % (2001) to 8,5 % (2006) for regional banks/savings banks and from 9,9 % (2001) to 12 % (2006) in the sector as a whole. For regional banks/savings banks, the potential for recovery was severely restricted both by the loss of institutional liability and guarantor liability (Anstaltslast and Gewährträgerhaftung) and by Basle II. The target yields before tax of around 6 to 7 % (according to the original notification) or [...]** % (according to the revised medium-term plan of 24 June 2003) were not directly comparable with the yields of competitors since BGB’s core-capital ratio during the restructuring phase contained a ‘safety buffer’ to ensure refinancing on the capital market, partly to offset the total absence of hidden reserves. Consequently, the future core-capital ratio of [...]** % had to be significantly higher than the average core-capital ratio of 6,1 % for regional banks/savings banks in the period from 1995 to 2000. As a result of the safety buffer of some [...]** %, the equity return - for the same pre-tax earnings - also fell by about [...]** % compared with competitors since the pre-tax earnings related to a larger amount of own funds.
(66)
The mere fact of being publicly owned did not call into question the possibility and value of restructuring the group. Giving black marks to public undertakings ran counter to Article 295 of the EC Treaty. Possible unlawful use of influence in connection with public ownership would be investigated by a parliamentary committee and by the Berlin public prosecutor. The Land of Berlin also intended to privatise BGB.
(67)
Furthermore, LBB’s business activity would be critically influenced by two special factors. First, under Section 3(6) of the LBB Law, it would in future have to continue to carry out development activities such as promoting saving and managing giro accounts also for private customers with limited creditworthiness (accounts for the man in the street). As a result, it had a disproportionately large number of customers in low-income brackets, and this significantly affected its yield potential. Changes could be made only over a long period of time. Second, it was still burdened by the structural weaknesses in the economy of the Berlin region, which were reflected in income per private customer that was some 15 % lower than the national average. Most of its competitors in Berlin could offset this through their presence in other regions. The takeover of the former Ost-Berliner Sparkasse gave LBB a far higher share in eastern Berlin, which was particularly weak structurally. Of LBB’s customers, 55 % were from eastern Berlin, although they accounted for only 37,5 % of all Berlin residents. These special factors would continue to play a role after any privatisation.
(68)
On the basis of the revised medium-term plan of 24 June 2003, Germany also provided a quantification of the effects of the proposals by the Commission's advisers (e.g. increase in risk provisioning), of the divestment of the real estate services business, to which it was already committed, and the hive-off of IBB, finding that the medium- to long-term effects of these three measures were insignificant.
(69)
At the Commission’s subsequent request, Germany and the bank outlined further the consequences of a separate sale of Berliner Bank by 2005 for the survival of the rest of the group. In Germany’s view, this sale would have a negative effect on the group’s medium-term plan. In total, there would be one-off effects in the period 2003 to 2005 of around minus EUR [...]**, [...]** of which would be accounted for by the extraordinary costs of the sale and the remainder by reserves for staff, IT, buildings and additional restructuring costs. In the medium to long term, the planned result before tax in 2006 of EUR [...]** (according to the revised medium-term plan and on the basis of the above three measures) would fall by about EUR [...]** to just under EUR [...]**, [...]** of this amount on account of the loss of Berliner Bank’s income to the group and the remainder on account of the delays in staff cutbacks, the loss of the planned increase in fee income and remaining (fixed) costs (especially in the context of back-office diseconomies of scale). The return on equity would decline by [...]** percentage points to [...]** % in 2006. This calculation was based on the assumption that Berliner Bank would be sold as an independent bank to maximise the number of bidders, something which would entail higher costs than the sale of assets or of an operating division. Furthermore, the hive-off of Berliner Bank would reduce the retail business’s share in the profits of BGB as a whole from a little over [...]** % to around [...]** %, while there would be a corresponding increase in the share of the capital market business from a little over [...]** % to around [...]** %.
(70)
The Commission asked Germany and the bank to quantify the consequences of a separate sale of BerlinHyp by the end of 2006 for the survival of the rest of the group. According to Germany and the bank, this would have the following negative consequences for the rest of the group or would impose the following requirements, which the buyer could not necessarily meet: the buyer would have to take over as far as possible internal refinancing (currently some EUR [...]**) on comparable terms, i.e. have at least as good a rating as Landesbank Berlin, and BGB’s guarantee for BerlinHyp in order to avoid applying the methodology for large credits (current estimated volume: about EUR [...]**). The buyer would also have to offer at least the book value of BerlinHyp as the purchase price since otherwise book value write-downs of [...]** might result, endangering the survival of the rest of the group. Even a negative outcome of the bidding procedure would involve a risk of further book value write-downs. A sale without serious consequences for the restructuring plan would be possible only if the marketing cooperation between BerlinHyp and the group could be maintained. An obligatory separate sale would require a one-off write-down of the current book value of EUR [...]** by EUR [...]** to the book value of BerlinHyp’s own funds of EUR 519 million. The expected earnings before tax in 2006 for the rest of the group would fall by a further EUR [...]** or so (difference between the loss of BerlinHyp’s expected income of about EUR [...]** and the interest income from the expected proceeds of the sale of about EUR [...]**). This, together with the separate sale of Berliner Bank, would result in a further fall in the target equity return in 2006 for the rest of the group of some [...]** %, to just over [...]** % in all, and a core-capital ratio of just under [...]** %.
(71)
Germany submitted a ‘medium-term plan’ for the development of individual balance-sheet and profit-and-loss account items during the period from 2001 (actual situation) to 2006 (planned situation). It updated the plan several times in the course of the proceedings in line with the further sales, closures and reduction measures that were promised. The revised medium-term plan submitted in June 2003, which already takes into account the divestment of the real estate services business and of IBB as well as all the measures originally intended, suggests the following consequences in individual business areas over the restructuring period 2001 to 2006. The various items listed in the medium-term plan are presented here by way of illustration mainly in terms of segment assets and number of employees only.
(72)
In the private customer segment, assets were to fall (by EUR [...]** or EUR [...]** %) from a little over EUR [...]** to just under EUR [...]** as a result of sales, closures and other reduction measures. Around 90 % of this fall was accounted for by sales of holdings (in particular in Allbank, Weberbank, BG Polska and Zivnostenska Banka). The workforce was to be cut by a disproportionately high figure of [...]** %. These figures take no account of the sale of Berliner Bank, promised for a later date.
(73)
Assets in the other retail banking segment, corporate customers, i.e. business with small and medium-sized enterprises (rather than large customers), were expected to fall from almost EUR [...]* in 2001 to around EUR [...]* in 2006 (down by just under [...]* %). At the same time, the number of employees would be reduced by just over [...]* %. Once again these figures take no account of the promised sale of Berliner Bank.
(74)
The compensatory measure in the real estate financing sector consisted mainly in a reduction in the risk portfolio and a refocusing on less risk-prone business. This was to reduce the segment assets by around [...]* %, from around EUR [...]* in 2001 to around EUR [...]* in 2006. The workforce is to be cut by around [...]* %.
(75)
Scaling back the capital market business would lead to a reduction in the workforce of around [...]* %, while the segment assets would fall by approximately [...]* %, from around EUR [...]* in 2001 to around EUR [...]* in 2006. Compared with the original plan, there was to be a stronger emphasis on less risk-prone business. Segment liabilities would be reduced disproportionately by over [...]* %.
(76)
With the gradual winding-up of the large/foreign customer business the assets in that segment would fall by about [...]* and the number of employees would be cut by around [...]* %. Items still remaining at the end of the restructuring phase, mainly as a result of long-term contracts and agreements, would be reduced further after 2006.
(77)
In the public sector business sector, abandonment of all supraregional business reduced the assets in that segment by almost [...]* %. This sector was to be assigned to corporate business.
(78)
The planned divestment of real estate services, which was offered as an additional compensatory measure, will reduce the segment assets almost to zero.
(79)
Combined with further reductions in asset items, e.g. in interest rate management or through the divestment of IBB’s government assistance business (around EUR 20 billion of segment assets), and the effects of consolidation, these measures would reduce the balance-sheet total by some EUR [...]* - or [...]* % - from around EUR 189 billion in 2001 to around EUR [...]* in 2006. Leaving aside the divestment of the IBB, it being doubtful whether it qualified as a compensatory measure, (19) the balance-sheet total would fall by about [...]*.
(80)
On the question of market shares, private and corporate retail banking were regional businesses, and so the relevant market shares referred to Berlin. By contrast, real estate financing and the capital market business formed national - and, in the latter case, largely international - markets. Compared with the figures submitted in the notification, the market shares in private and corporate business in Berlin were revised downwards (to between a little 20 % and over 40 % in the private business sector and just over or just under 25 % in the corporate business sector), as BGB’s reports to the Land central bank on the statistics used to calculate them failed, according to Germany, to give the requisite regional and thematic breakdown (see paragraph 291 et seq. below).
(81)
BGB’s share of the Berlin market in loans to private customers was expected to increase slightly by 2006, accompanied by only a slight dip in its share of the deposit business market. The reason for this was a refocusing of BGB’s business activities on the Berlin market. However, at the same time it would withdraw completely from the supra-regional market in line with the restructuring plan. The compensatory measures in the private customer sector would have barely any impact on the Berlin market shares, as reductions here primarily affected supra-regional operations.
(82)
In the corporate business sector, the market share for loans would contract slightly between 2001 and 2006, while the share of the deposit market would remain almost constant.
(83)
In the real estate financing sector, the national market share indicated initially had to be revised, on the basis of updated statistics, from around 5 % to around 3 %, falling further to around 2 % by 2006. There would probably be no change in the capital market sector by 2006.
(84)
In the course of the proceedings, Germany stated that BGB had examined very closely the possibility of further compensatory measures. However, apart from the sale of the real estate services business - promised at an earlier stage, but not part of the original plan - no further compensation was possible [...]*.
(85)
Overall, according to Germany, the compensatory measures were also appropriate. The total amount of aid used as a point of reference for assessing its appropriateness included the EUR 1,755 billion capital injection by the Land and the aid value of the risk shield, which in a worst-case scenario was equivalent in financial terms to EUR 6,07 billion. As remuneration for the risk shield, BGB would pay a guarantee commission of EUR 15 million each year.
(86)
In its decision to initiate proceedings, the Commission had used as an indication of market distortion the scope for extending business on the basis of the solvency ratios required under banking supervisory legislation. However, Germany argued that the assumption that a core capital injection of EUR 1 billion could boost the risk-adjusted assets by up to EUR 25 billion could not be inferred directly from the basic rules of banking supervisory legislation. Only if core and supplementary capital were injected simultaneously could a bank boost its risk-adjusted assets by 25 times the amount of the core capital injection. Unless a bank had previously ineligible supplementary capital corresponding to the amount of the core capital injection, it was impossible a priori to apply a factor of 25. It was wrong to regard an extension of business that was possible only as a result of supplementary capital that was available to the bank in any case as a market distortion caused by an injection of core capital classified as aid. It was therefore considered that, from the very outset, the maximum possible market distortion should be set at no more than 12,5 times the amount of aid granted in the form of a capital injection.
(87)
The Land of Berlin injected only core capital totalling (EUR 1,755 billion) into BGB, and not supplementary capital. The core capital injection meant that the previously ineligible supplementary capital of EUR 877,5 million could be taken into account. But, as explained above, this could not be regarded as market distortion caused by the core capital injection.
(88)
Moreover, the (theoretical) core-capital ratio of 4 % and the own-funds ratio of 8 % constituted the minimum capital base required by law. Institutions needed a much larger capital base if they were to run an orderly business and to have the room for manoeuvre necessary to operate in the financial markets. BAFin estimated that, from a market standpoint, BGB required at the time a core-capital ratio of [...]* % and an own-funds ratio of [...]* % in order to guarantee its liquidity and safeguard the restructuring process (cf. letter from BAKred dated 29 June 2001).
(89)
On the basis of these considerations and the relevant capital ratios, the capital injection would cause market distortion equivalent to around EUR 18 billion (core capital injection of around EUR 1,8 billion multiplied by a factor of about 10).
(90)
In response to the Commission's decision to initiate proceedings, Germany had already proposed as a further compensatory measure that the real estate services businesses (IBAG, IBG, LPFV) be separated from BGB. The effect of the risk shield was focused on the real estate services sector, which in itself was not subject to the solvency ratio requirements and could just as easily be carried out by another company not authorised to engage in banking. The risk shield related to old business, mainly investments already placed, and not to new business. It could though be argued that new business was possible only because of the risk shield. But in that case the size of the market distortion could be no more than the total volume of new business. In 2002 IBV was expected to sell fund investments totalling EUR [...]*. Bavaria anticipated a total project volume of EUR [...]* in 2002. IBAG’s new business amounted to around EUR [...]*. At most, IBAG’s new business up to the end of the restructuring period (end of 2006) could be attributed to the risk shield. After that, IBAG would be an efficient, reorganised undertaking able to compete in the market. So the risk shield could be regarded as constituting a market distortion only in relation to IBAG’s new business up to the end of 2005, i.e. a total of EUR [...]* from 2002 to 2005. This total volume of market distortion lay between the best- and worst-case scenarios for the actual cover provided by the Land of Berlin under the risk shield (EUR 2,7 billion and EUR 6,1 billion respectively). In determining the market distortion caused by the risk shield, the Commission should therefore take as a basis the value established for IBAG’s new business up to the end of the restructuring period, i.e. EUR [...]*. Otherwise, the market distortion caused by the risk shield could be estimated at best on the basis of the aid value of the risk shield in the worst-case scenario (EUR 6,07 billion).
(91)
Accordingly, the market distortion to be taken as a starting point for assessing the compensatory measures consisted of:
-
a new amount for BGB in the form of the capital injection: EUR 18,3 billion,
-
a new amount for the real estate services sector - to be divested - in the form of the risk shield: EUR [...]* to EUR 6,1 billion.
(92)
In its decision to initiate proceedings, the Commission had assumed that BGB enjoyed an extremely strong market position and had drawn appropriate consequences for the determination of compensatory measures. However, this assumption, based on the information then available, was not borne out by the low market shares actually held by BGB. Overall, the proposed measures to offset the market distortion appeared to be appropriate, even allowing for any possible state aid implications that WBK's assets might have for LBB.
(93)
Germany also argued that on competition grounds it was inadvisable to sell Berliner Bank before selling the Land of Berlin’s shares in BGB. The remedies in the retail sector were sufficient: divestment of Weberbank, Allbank and the foreign subsidiaries BGB Polska and Zivnostenska Banka, the relinquishing of the six German private customer centres and the closure of around 90 branches, predominantly in Berlin. Moreover, the compensatory measures as a whole were in line with or went even further than the demands placed by the Commission on banks in previous restructuring decisions.
(94)
After further objections from the Commission, especially in view of the fact that the closures and sales already undertaken or still to be implemented left BGB’s position in the Berlin retail banking market virtually intact, Germany and the Land of Berlin finally agreed to sell the Berliner Bank after all. In so doing, Germany promised to ensure that the Bankgesellschaft group sold the ‘Berliner Bank’ division as an economic unit, including its trade mark, all customer relations, branch offices and accompanying staff, by way of an open, transparent and non-discriminatory procedure, with the sale to be legally effective by 1 October 2006.
(95)
The divestment of Berliner Bank will reduce the assets in retail banking by EUR [...]* (EUR [...]* in the private customer sector and EUR [...]* in the commercial customer sector). Together with the measures already planned, the reduction in the assets will amount to EUR [...]*. The balance-sheet total will be reduced from EUR 189 billion to EUR [...]* billion.
(96)
Germany argued that the risks had not been overstated in the course of the restructuring, although they were based on the information on LPFV available in January 2002. Assessment of the risks could change during the period covered by the guarantees as a result of macroeconomic factors and intensive real estate management. However, LPFV’s indemnification agreements with IBG and the detailed arrangements of the Land of Berlin’s risk shield for LPFV served to ensure that only the actual claims on guarantees by the Land of Berlin were refundable. The Land of Berlin had the right to intervene and issue instructions in respect of LPFV in order to guarantee high-quality management.
(97)
Furthermore, appropriate control measures had been introduced to rule out multiple risk coverage in practice. The risks arising from renewal and the right of offer were not cumulative but interchangeable. This factor was taken into account in the description of LPFV’s risks. However, there was actually multiple risk coverage in the case of rent guarantees and credit guarantees for the BGB group. LPFV verified claims on rent guarantees to ensure they were legally and factually in order and calculated correctly. Since January 2003 the BCIA Berliner Gesellschaft zum Controlling der Immobilien-Altrisiken mbH, wholly owned by the Land of Berlin and acting on its behalf, had carried out checks to rule out simultaneous calls on the loan guarantee. All services performed by LPFV for which the Land had assumed obligations were checked by BCIA in detail from a legal, factual and accounting standpoint, with further checks on the legality of each claim on the credit guarantee and on balance-sheet guarantees. BCIA provided the Land with a powerful and effective means of minimising damage, as the Garantiegesetz (Guarantee Law) of 16 April 2002 explicitly stated that no payments may be made to third parties in connection with risk-shielding, except where there is a legal obligation to do so.
(98)
More specifically, under the detailed agreement, the Land or BCIA, on whose activities the Land Parliament must receive a report every quarter, enjoyed the following rights with regard to approval, inspection, the issuing of instructions, etc. vis-à-vis companies protected by the risk shield, the exercise of which was more closely regulated by a regulation on responsibilities and procedures:
-
right to reserve approval of payments on loan commitments, where certain value limits were exceeded,
-
right to have a say in drawing up the positive list and the annual accounts for balance-sheet guarantees,
-
right to reserve approval of sales of assets underlying the book value guarantee, where certain value limits were exceeded,
-
right to reserve approval of investments which lead to additional acquisition and production costs, where certain value limits were exceeded,
-
right to reserve approval of certain payments by LPFV,
-
right to issue instructions to IBG and LPFV on protection against claims,
-
right to reserve approval of assignments and other measures concerning claims arising from the detailed agreement,
-
comprehensive rights to information and inspection,
-
right to reserve agreement on the appointment of auditors by IBG, IBAG and LPFV,
-
right of audit by the Berlin Audit Court (Rechnungshof),
-
right to reserve approval of restructuring operations.
(99)
The bank made its own significant contribution by selling assets or subsidiaries which were not essential for its long-term viability. The holdings in question were both substantial and profitable and were sold by open and transparent procedures. It was also planned to sell the real estate services business. BGB could make no further contribution of its own, having already done its utmost in 2001 to counter the extensive loss of own resources and to prop up its own-funds ratio by reducing its risk-bearing assets.
(100)
The core capital and own-funds ratios targeted from 2003 under the restructuring plan and provisionally approved as rescue aid were also necessary. If the undertaking was to survive and obtain a solid rating from rating agencies, it was vital that it achieved the provisionally approved core-capital ratio of 5 % and the own-funds ratio of 9,7 % and, from 2006, the target core-capital ratio of around 7,5 % and the own-funds ratio of around 12 %. Given [...]* and BGB’s [...]* liquidity situation, an above-average capital base was essential if [...]*.
(101)
Between 1995 and 2000 the average core capital and own-funds ratios of Land banks/saving banks ranged from 5,7 % to 6,8 % and from 8,9 % to 10,2 % respectively. BGB’s provisionally approved core-capital ratio of 5 % was therefore below the long-term average of comparable banks, while the provisionally approved own-funds ratio was a mere 0,1 % above the mean value for the years 1995 to 2000. These ratios appeared to be very conservative and failed to take account of BGB’s specific problems.
(102)
In the market as a whole, i.e. private and public banks in Germany, solvency ratios ranged between 6,3 % and 7,3 % (core-capital ratio) and between 10,4 % and 11,3 % (own-funds ratio), partly because of the absence of guarantor liability in private banking. Even before the guarantor liability for public banks was discontinued, it was likely that the solvency ratios of Land banks/saving banks would gradually be aligned on the higher ratios of private banks. As a result, the average own-funds ratios of Land banks/saving banks would ceteris paribus increase from 9,6 % to around 10,9 % in 2006. The restructuring plan estimates BGB’s own-funds ratio in 2006 at [...]* %; on this basis, BGB’s own resources cushion would be reduced to no more than around [...]* %.
(103)
When it came to assessing the own-funds ratio, what counted therefore was not the statutory minimum of 8 %, which BAFin had in fact increased to 8,4 % and which, allowing for volatility, actually lay around 8,6 %. Instead, the capital market and rating agencies tended to use appropriate benchmarks which entailed considerably higher own-funds ratios and hence reduced the apparently large own resources cushion from just under [...]* % to around [...]* %.
(104)
An above-average own-funds ratio in 2006 was vital [...]*. Rating agencies attached considerable importance to capital structure and in the past have called for improvements in BGB’s core-capital ratio. Given the close correlation between the financial strength rating and the long-term rating, on the one hand, and the forthcoming end of guarantor liability, on the other, a significant improvement in the financial strength rating was required to avoid negative consequences for the scale and cost of refinancing. Moreover, the reappraisal of risk-bearing assets under Basel II would probably result in a higher own resources requirement from 2006 onwards because of the increasing volatility of risk-bearing assets.
IV. COMMENTS FROM OTHER INTERESTED PARTIES
(105)
In response to the publication of the decision to initiate proceedings in the Official Journal of the European Communities, the Commission received comments from two other interested parties, namely Berliner Volksbank and a third party which asked for its identity to be kept secret.
(106)
Berliner Volksbank argued that there could be no question of authorising the notified restructuring aid under Article 87(3) of the EC Treaty. The aid was also not covered by the statutory arrangements of institutional liability (Anstaltslast) and guarantor liability (Gewährträgerhaftung) and hence was not existing aid.
(107)
The aid measures for BGB were on a completely new scale. The bank’s financial difficulties were due in the first place to its extremely exposed business in closed-end real estate funds. The reason for BGB’s losses was that virtually no checks had been made when the property had been acquired. Yet investors had been guaranteed an income. The undertaking had been regarded throughout the Federal Republic as the market leader - primarily, in all probability, on account of the favourable conditions for investors.
(108)
Restructuring aid could be justified in individual cases given the serious negative consequences of a bank failure for the banking system and public confidence. Unlike in previous cases decided by the Commission, however, the aid recipient here operated on a limited regional scale so that the effect of the aid was concentrated on only a few competitors. These would be hit all the harder by the distortive effects, especially Berliner Volksbank, which competed with the BGB right across its business.
(109)
The level and intensity of the aid should be limited to the minimum necessary for the restructuring. But this was not apparent. The Land guarantee for risks in the property sector was an unlimited additional funding commitment since the Land of Berlin’s associated liability could not currently be estimated and was therefore a ‘blank cheque’ for future losses. No excess liquidity could be allocated to the undertaking, however. Given its amount (EUR 21,6 billion) and its duration (30 years), the guarantee was already disproportionate: it gave the bank virtually unlimited creditworthiness and distorted competition quite considerably. By being completely indemnified against the risks of property servicing in operational banking, BGB was receiving an ‘unconditional licence’ to submit offers on whatever terms it wanted, e.g. when selling or leasing property. Even if the bank were to make losses in the process, these would be fully compensated by the Land of Berlin. Consequently, the guarantee was an additional funding commitment of unlimited amount which, by its very nature, could not be authorised and which was also not defined in the underlying legislation. In addition, the capital injection combined with the risk-hedging guarantee provided double cover. When determining the grant equivalent of the guarantee, the fact that much of it would definitely be used should be taken into account. In the least favourable scenario, the Land was assuming EUR 6,1 billion. Since it was realistic to expect that the guarantee would be invoked (though, plainly, a precise figure could not be given), its aid intensity would correspond to the nominal amount.
(110)
The market for financial services was characterised by strong competition on terms, with considerable pressure on margins. It was therefore to be expected that BGB would pass on the full advantage conferred by the aid to the market and thus considerably distort competition to the detriment of its competitors. This was a particular cause for concern because the aid was being granted to the market leader in the Berlin/Brandenburg region, whose market share in that region relative to the lending business as a whole was, on BGB’s own estimation, just under 50 % and which owned just over 50 % of all branches of credit institutions in Berlin. BGB was a direct competitor of Berliner Volksbank in the latter’s main fields of business, i.e. personal banking and banking for medium-sized corporate clients, and already had a market share many times larger than Berliner Volksbank’s. The aid thus contributed to a further economic ‘consolidation of power’ in the Berlin banking market. The bank’s comparatively strong market presence was also a consequence of the multibrand strategy of BGB, which was operating with several institutions under different brands or business names. BGB was pursuing a business strategy which had detached itself from profitability strategies and, through its subsidised conditions, had become predatory.
(111)
Because it lacked a cogent plan for a sustained recovery, the proposed restructuring programme would not restore the long-term profitability of the undertaking. It was based on overly optimistic assumptions, was not sufficiently specific and overemphasised positive aspects. Moreover, it was not suited to ensuring the long-term profitability and hence the viability of the undertaking since it set out to achieve a target profitability of only some 6 to 7 %, which was only half as much as the usual average for the sector. Lastly, the restructuring programme did not mention future aid reimbursement obligations associated with the pending investigation of the transfer of WBK to the Land bank in 1993.
(112)
Insufficient attention was paid to the need, identified in the Commission’s guidelines, to reduce the adverse effects on competitors by limiting the presence of the aid recipient on the relevant markets after restructuring since business activities in the relevant markets would actually expand. The restructuring programme would make it possible to increase profits in the private and corporate customer segments and to compensate for the closure of various sites outside Berlin, in particular by focusing and expanding those activities in Berlin. BGB was planning to retreat only from those geographic markets in which it had not so far acquired considerable importance. The announced closure of branches might not lead to a reduction of BGB’s market presence but it corresponded more to a general trend in the markets for financial services in Germany, which was regarded as ‘over-banked’. The extent of the remedies to be provided by BGB would have to be calculated using its current dominant position in the Berlin banking market, since this was where the distortive effects were strongest. As a condition for offsetting the distortions caused by the aid, the Commission should consider the sale of part of the BGB group. One possibility would be to sell Berliner Bank, which in the relevant market segments had market shares similar to those of Berliner Volksbank. The advantage of selling Berliner Bank was that, organisationally, the institution was largely independent and had its own entrance to the market; it could therefore be taken over by a competitor with relative ease. Given the amount of aid, the size of the business sold off would be appropriate compensation for the aid’s considerable distortive effects.
(113)
Along with the public liability guarantees (Anstaltslast and Gewährträgerhaftung) and the transfer of Wohnbau-Kreditanstalt to the Berlin Land bank, the present aid measure was only one of the many financial public support measures for BGB. This resulted in a combination of aid which would also have to be taken into account in determining the remedies for the granting of the restructuring aid.
(114)
Raising the own-funds ratio to 9,7 % was not essential. Only the 8 % minimum laid down in the German Banking Law (Kreditwesengesetz) was legally binding and, in the words of the guidelines, the ‘strict minimum needed’.
(115)
The combination of risk hedging and capital injection was not essential since the former by itself would cover the risk of losses in the property sector. The capital injection led to the Land of Berlin compensating for losses twice over. BGB might use the additional funds obtained for other business segments.
(116)
Furthermore, there were indications of other aid. The Land government was negotiating with selected investors over the takeover of the bank. The sale was not at the market price since the tendering procedure was not open to all, was not transparent and was not being conducted without discrimination.
(117)
The bank’s future strategy seemed in particular to be to reduce its activities, capacities and infrastructure and to concentrate on regional personal and corporate banking. This plan could be based only on the assumption that these regional markets and the bank’s share of them would grow. There were some doubts and contradictions, however, about the bank’s shares of these markets. It was also unclear whether the bank could build on a sound customer basis at all. The Berliner Bank brand had weaknesses in this respect. Because of the problems of the property financing business in the past, there were doubts about its future success. Maintaining a large share of the capital market business was not typical of a regional bank.
(118)
The successful implementation of the restructuring programme depended substantially on whether it managed to achieve the ambitious plans for reducing staff, introducing a new risk control system and improving information systems. There was a question mark against this, however, since staff reduction measures to date had not achieved their targets and since resistance from employees and unions was to be anticipated. Moreover, many of the reductions to date were attributable to outsourcing measures, but no long-term reduction in costs could be expected from these. Rather, it should be reckoned that the costs of the transferred workers would have to be borne by the bank in the form of higher service charges.
(119)
In the future, the bank had to be able to compete in the marketplace on its own merits, in accordance with point 34 of the guidelines. There were doubts whether the target return on own resources of 7 % for 2006 was sufficient for this. It could not be assumed, therefore, that long-term viability would be restored. Nor could that low return be justified by the performance of public functions by the savings bank since these were irrelevant to an assessment of the return.
(120)
With continuing public ownership, there were considerable doubts as to whether the bank’s viability could be restored and guaranteed. The Land of Berlin would be exposed to considerable political pressure when terminating employment relationships. In general, it would not be able to implement the restructuring plan. The bank’s bodies would still have political appointees on them, which would give rise to conflicts of interest. Even if it were taken over by another German regional bank, these problems would continue.
V. GERMANY’S REACTION TO THE COMMENTS OF OTHER INTERESTED PARTIES
(121)
Germany commented on the observations of Berliner Volksbank and the anonymous third party. Berliner Volksbank’s submission about alleged existing aid was unfounded. There were no substantial financial resources that had been built up through alleged aid. Otherwise the group would not be in difficulties. Further, the Commission had assessed the liability systems of institutional liability and guarantor liability as existing aid and these should not therefore be regarded as encumbering BGB. The capital injection provided through the rescue aid would indeed be made available to the bank permanently, but this was in accordance with the guidelines and the Commission’s practice as regards restructuring aid. The transfer of WBK to LBB was being investigated by the Commission in a separate proceeding but was not described by Germany as aid.
(122)
While BGB had a relatively strong position on the Berlin banking market in both personal and corporate banking, its market shares were not as high as Berliner Volksbank claimed. The market shares based on volumes were clearly smaller than those based on customers since Berliner Sparkasse had many accounts with small credit and deposit volumes, which was proving to be more of an additional cost factor.
(123)
The restructuring programme was fully documented in sufficient detail. Germany viewed the current programme as a stable basis for ensuring BGB’s profitability. The profitability of the entire banking sector in Germany had declined significantly on account of the difficult general economic situation. The average return on own funds had fallen from 11,2 % in 1999 to 9,3 % in 2000 and to as little as 6,2 % in 2001. In the Federal Government’s communications, the results of each business segment for the period 2001 to 2006 were consistently shown separately and were derived in comprehensible stages. The general layout followed the same pattern: total earnings, operating result before and after provision for risks, and pre-tax profit.
(124)
The steps necessary for implementing the restructuring programme were being planned by BGB in two stages:
-
at conceptual level, it had first of all worked out a subdraft for each of the current business segments, irrespective of whether it was to be kept, liquidated, reduced or sold,
-
at a practical level, it had then allocated to each subdraft specific measures necessary for its implementation and costed them in turn.
(125)
Thus a complete draft was available. Since then, the individual measures had been filled out, with more detail added at segment level, and incorporated in a comprehensive overall plan. Two special instruments which complemented the usual monitoring of results had been developed for implementation purposes: one for general measures and the other for personnel measures. These made it possible to compare planned and actual values on a monthly basis and hence to run a permanent check on the success of the implementation.
(126)
Only property financing was regarded by the bank as a typical task for a regional bank. This did not include property services, which was where the losses that had originally made the reorganisation of the bank and the authorities’ risk shield necessary had largely occurred. BGB had offered to sell this business segment as a compensatory measure. The provisioning ratio in respect of real estate loans was not too small.
(127)
In future, several measures would be taken in new and existing business and as regards monitoring in order significantly to reduce the risks in the property financing segment. As regards new business, activities would be concentrated at attractive locations, risk diversified by interregional activities within Germany, foreign business largely terminated and high-risk segments, especially building, discontinued. In the existing business sector, risk specialists would be used for troubled exposures and asset portfolios would be critically reappraised and revalued. As regards controls, risk monitoring throughout the group would be introduced which would in turn provide the framework for individual control instruments. These included a limitation system for market and counterparty risks, an early-warning system, reorganisation strategies and a task force for exposures affecting more than one banking subsidiary.
(128)
Contrary to Berliner Volksbank’s view, the restructuring would lead to a reduction of market presence since the large customer and public authority segments would be discontinued and other segments reduced. It did not make sense commercially to discontinue the retail business segments since that would impair the undertaking’s core business and hence jeopardise privatisation prospects. In addition, market presence in the retail segments would not be increased. The bank would withdraw completely from Brandenburg, except for Potsdam. In the Land of Berlin its market presence was being appreciably reduced through branch closures.
(129)
The risk shield was not a ‘blank cheque for future losses’ since the risks covered by it were all existing risks. Risks from transactions conducted after 31 December 2001 were generally not covered, and risks from real estate funds were covered only if the fund concerned had been invested in before 31 December 2000.
(130)
Nor was the risk shield an ‘unconditional licence to submit offers on whatever terms it wanted, e.g. when selling or leasing property’. In Articles 17(2), 35(2) and 42(5) of the detailed agreement there were several conditions that were dependent on the Land’s consent. Moreover, Article 46 laid down a comprehensive ‘avoidable consequences’ requirement whereby the beneficiary companies were obliged to do their utmost to keep the Land’s involvement as small as possible, to utilise the assets covered by the book-value guarantee as favourably as possible and to lease or otherwise use property items on optimum terms. Infringement rendered the company concerned liable for damages.
(131)
The risk shield did not constitute an unlimited additional funding commitment. Unlike an additional funding obligation under company law, for instance, the Land of Berlin’s obligation under the risk shield was limited as to its total and its object, namely to those risks which were exhaustively listed in the detailed agreement and to which funds had already been committed by 31 December 2001. The risk shield had also been made sufficiently specific. The agreement in principle of 20 December 2001 already contained a complete list of the companies entitled to the credit guarantees and the balance-sheet guarantees, and the detailed agreement had altered the list in respect of a few details only. The shareholdings and legal relationships were enumerated in the detailed agreement and the contracts referred to in it. The extent of the risks covered by the risk shield had also been made sufficiently specific.
(132)
The own-funds ratio targeted by BGB was not too high. Lenders’ and investors’ confidence in BGB was shaken. BGB, moreover, no longer had [...]*; normally these would be taken into consideration, together with the own-funds ratio, when assessing a bank’s ability to access the capital market. Further, privatisation of the bank required that, once the Land’s share had been abolished, capital could be raised in the capital market on tolerable terms. This meant that the own-funds ratio must permanently be significantly higher than the statutory minimum.
(133)
For the rest, the privatisation procedure contained no aid elements and revealed no shortcomings. There had been no discrimination during the procedure.
VI. ASSESSMENT OF THE AID MEASURES
(134)
The capital injection, the risk shield and the contribution promised in the refund agreement were provided by the Land of Berlin and therefore comprise state resources. The resources were granted on conditions which would not be acceptable to a market-economy investor. The total amount involved is several billion euros, which are being made available to an undertaking in serious financial difficulties.
(135)
Through the capital injection of EUR 1,755 billion, on which it could not expect an appropriate return, the Land increased its share in BGB from just under 57 % to about 81 %.
(136)
The risk shield was granted for a period of 30 years. The guarantees agreed amount to a nominal theoretical maximum of EUR 21,6 billion. This amount covers all theoretically conceivable risks and comprises, for example, the total loss of all rents in the case of the rental guarantees (EUR [...]*), the application of full production costs for all buildings and outside facilities in the case of the renewal guarantees (EUR [...]*) or the complete loss of the guaranteed book values of IBG/IBAG and its subsidiaries (EUR [...]*). A 100 % loss of rent, the demolition and reconstruction of all buildings and a complete loss of book values are, however, even on very pessimistic assumptions, unrealistic. Germany has therefore estimated the probable take-up as follows: EUR 2,7 billion in the best-case scenario, EUR 3,7 billion in the base-case scenario, and EUR 6,1 billion in the worst-case scenario.
(137)
In the course of the proceedings, Germany also communicated the basis for these estimates. For the three scenarios, assumptions are made regarding the various risks of default. In the case of rent guarantees, there are, for example, different loss-of-rent assumptions concerning inflation (actual inflation remains lower than forecast inflation), rental shortfall or vacancies. The forecast loss of rent is EUR 1,4 billion in the best-case scenario, EUR 1,9 billion in the base-case scenario and EUR 3,5 billion in the worst-case scenario.
(138)
Germany also explained that, from a commercial standpoint, the total take-up expected corresponded to the worst-case scenario, with an estimated value of EUR 6,1 billion (EUR [...]* in rent guarantees, EUR [...]* in maximum price guarantees, EUR [...]* in renewal guarantees, EUR [...]* in book value guarantees and EUR [...]* in residual amounts), and hence to the economic value of the aid. This economic value was underpinned by an alternative calculation submitted by Germany: without the guarantees in the risk shield, liability for all the risks would have had to be ‘discharged’ with a capital injection of some EUR [...]*- [...]*. About EUR [...]* of this capital would be accounted for by the cash value of the guarantees described above (nominal economic value: EUR 6,1 billion); EUR [...]*- [...]* by the capital injection for supporting the group banks' loans, committed for the same purpose and utilised, to property service companies (which, if the nominal theoretical extreme risks are not covered from rent, renewal and book value guarantees, would have to be attributed to the risk assets at a value of EUR [...]*); and EUR [...]* to [...]* by a security premium.
(139)
Germany also explained in this connection that it was nevertheless not possible for supervisory reasons to limit the maximum liability under the risk shield to the economic value of just over EUR 6 billion. Only if the amount were EUR 21,6 billion would all conceivable risks mentioned above be covered, so that the group banks’ loans to property service companies, which on account of the risks were being committed and drawn down from rent, renewal and the other above-mentioned guarantees, play no role in the calculation of the subsidiary banks’ and the group’s own-funds ratios because they have a 0 % weighting in the calculation and are therefore not included and also not set off against the large-scale lending limits. Limiting the maximum amount of liability to the economically realistic risk would, on the contrary, mean in supervisory terms that the credits would have to count as risk assets to the tune of EUR [...]*, the large-scale lending ceiling would be exceeded and the falling own-funds ratios would make a further significant capital injection necessary. The need, from a supervisory standpoint, to start with all the theoretically occurring risks, despite a lower economic value, was confirmed by the BAF in its letter of 7 March 2003.
(140)
The Commission recognises the need, from a supervisory standpoint, to start with all the theoretically occurring risks and an amount of EUR 21,6 billion. Further, for the state aid assessment of the measure, it assumes, on the basis of the justification presented by Germany, that the aid contained in the risk shield has an economic value of EUR 6,1 billion. This amount corresponds to the realistic worst-case scenario supported by Germany with assumptions and is thus necessary for the assessment if only for prudential reasons. In addition, a value of roughly this amount would also result if, in the alternative, the liability from risks is discharged by capital injection.
(141)
With regard to the contribution promised by the Land of Berlin in the refund agreement, it should be noted first of all that this will apply only if the Commission concludes the LBB/IBB proceeding (20) with a recovery decision and if, in this case too, only the necessary amount of the reorganisation grant is paid, in order to avoid undershooting the capital ratios mentioned in the agreement in the case of LBB and/or the BGB group. Since the examination in the LBB proceeding has not yet been completed, it is not possible at the moment to determine the exact economic value of this aid. For the purposes of the competition assessment, though, the theoretical upper limit can be given as EUR 1,8 billion. (21)
(142)
The measures make it possible to improve BGB’s financial position considerably. They have so far prevented supervisory intervention, e.g. temporary closure, and the probable insolvency of substantial subsidiaries in the group and are thus likely to distort competition. With its subsidiaries, the undertaking is one of the largest German banks. In 2002 it had a group balance sheet of approximately EUR 175 billion and was ranked twelfth. In its largest segments, BGB is active at regional, national and international level. The financial services sector as a whole is characterised by increasing integration, and in substantial subsectors the internal market is a reality. Competition between financial institutions in different Member States is strong and has been getting stronger since the introduction of the single currency. The measures and their effects on actual and potential competitors distort - or threaten to distort - competition. The distortions of competition thus also affect trade between Member States. The measures therefore constitute state aid under Article 87(1) of the EC Treaty. Germany has not questioned this view.
(143)
In the decision to initiate the procedure, the Commission noted that not only the Land of Berlin but also NordLB contributed capital, although the amount was proportionately less than its shareholding prior to the capital injection (EUR 166 million, or 8,3 % of the capital increase, compared with a 20 % shareholding prior to the capital injection). The Commission could not evaluate this measure at the time because it lacked sufficient information and could not therefore conclude that the capital contributed by NordLB was also state aid within the meaning of Article 87(1) of the EC Treaty. It requested Germany to send the necessary information.
(144)
Germany explained that NordLB’s capital increase contained no aid since it had been made in accordance with the market-economy investor principle. Like the private shareholder Parion and the miscellaneous small shareholders, NordLB had participated in the capital increase to a less than proportionate degree, although the Land of Berlin and BGB had expected each to take part in accordance with their respective shareholdings. NordLB’s 20 % stake prior to the capital injection would have corresponded to a capital contribution of just over DEM 400 million. Such an exposure, however, did not seem good business to NordLB. On the other hand, to have refused to participate in the capital increase at all would have reduced NordLB’s stake to 4 %. NordLB would thus have lost the participatory rights associated with a holding of at least 10 %, such as asking a court to appoint special auditors or asserting the company’s claims against members of the management and supervisory boards. Further, in August 2001 NordLB had submitted an offer that ‘promoted its interests’ with regard to unfinished discussions on deepening cooperation and a possible merger. Without any participation in the capital increase, this would have hardly been credible. Altogether, this was a decision that carefully weighed up NordLB’s business interests.
(145)
Given that the relative weight of this measure in the restructuring plan is marginal and that the classification of the measure as state aid or normal market behaviour would not alter the Commission’s assessment in this case, it is not necessary for the Commission to take a definite view on this issue.
(146)
In the decision to initiate the procedure, the Commission pointed out that the capital injection and the risk shield together should be treated as non-notified aid, with the legal consequences of Article 13(2) of Regulation (EC) No 659/1999, since, in the detailed agreement, despite notification and the suspensory condition of aid authorisation, neither of the two measures can be suspended without attracting supervisory measures by the BAFin, such as a temporary closure of BGB. As Germany too has explained, both measures - the risk shield and the capital injection, which itself has been provisionally authorised as rescue aid - are part of a single restructuring plan. The Commission must, however, assess this as a whole and, consequently, the two measures cannot be given different legal classifications.
(147)
In this respect, Germany explained in its comments that the suspensory condition leaves the legal effectiveness of the adopted schemes open, but it conceded that the capital injection and the risk shield have together produced effects because only through these measures could BGB continue in business. It also attached importance to the observation that the ban on implementing aid for firms in difficulty before the adoption of a final decision by the Commission constitutes a procedural problem in view of the duration of the authorisation procedure.
(148)
As also acknowledged by Germany, the aid in its totality has produced actual effects before a final decision since only through these measures has BGB been able to continue in business. This applies not only to the capital injection and the risk shield, but also to the Land’s obligation to contribute under the refund agreement. Admittedly, this obligation applies only in the event of a recovery decision by the Commission in the LBB/IBB case, and only then if the amount to be recovered leads to the capital ratios mentioned in the agreement not being met. However, the success of the restructuring, including the other two measures, would be jeopardised without such a precaution, so that this measure too, despite a suspensory condition relating to authorisation by the Commission, has produced economic effects on its conclusion and hence before the authorisation. The Commission notes, however, that through the suspensory conditions making the validity of the repayment agreement dependent on state aid approval by the Commission and the prompt transmission of comprehensive information Germany has expressed its readiness to cooperate.
(149)
The financial burden imposed by the BGB restructuring plan on the Land of Berlin is - as will be shown below - lower than in the scenario involving use of only the existing state guarantees (institutional liability and guarantor liability) for Land banks. This fact, however, does not imply that the measures taken in favour of BGB are in line with the market-economy investor principle and would consequently not constitute state aid. Firstly, the existing state guarantees themselves, even if only until 2005, constitute state aid compatible with the common market (22). Secondly, the Commission notes that the aid measures in question keep BGB in operation for restructuring purposes and thus benefit the entire group, including the various private-law companies. They are thus radically different in nature and scope from the pure implementation of the state guarantees, which exist only for the Land bank LBB, part of the group. For these reasons, all the measures under examination here constitute new state aid.
(150)
Since the aid measures were not granted under an approved aid scheme, the Commission must assess their compatibility with the common market in the light of Article 87 of the EC Treaty.
(151)
In accordance with Article 87(1), save as otherwise provided for in the EC Treaty, state aid or aid granted through state resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the common market.
(152)
However, Article 87 does allow exemptions from the principle of the incompatibility of state aid with the common market. Provided that the conditions governing exemption under Article 87(2) were met, aid could be deemed compatible with the common market. However, the aid measures under examination cannot be regarded as aid having a social character that is granted to individual consumers (subparagraph (a)), as aid to make good the damage caused by natural disasters or exceptional occurrences (subparagraph (b)) or as aid granted to the economy of certain areas of the Federal Republic of Germany affected by the division of Germany (subparagraph (c)). These exemptions are not, therefore, applicable in the present case.
(153)
As regards the exemptions under Article 87(3)(b) and (d), it is to be noted that the aid does not serve to promote the execution of important projects of common European interest or to remedy a serious disturbance in the economy of the Member State and cannot be regarded as aid to promote culture and heritage conservation.
(154)
Accordingly, the Commission is vetting the aid measures in the light of the exemption in Article 87(3)(c). It is basing its assessment of 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, on the relevant Community guidelines. In the Commission's view, the only guidelines applicable are those on state aid for rescuing and restructuring firms in difficulty (23) (hereinafter the guidelines). The Commission also takes the view that the measures described make a contribution to financing the restructuring of the firm and are, therefore, to be regarded as restructuring aid.
(155)
According to the guidelines, restructuring aid is permissible only if it does not run counter to the Community interest. Under the guidelines, aid may be approved by the Commission only if certain conditions that are examined below are met.
(156)
In the Commission's view, it has been sufficiently demonstrated that BGB is to be regarded as a firm in difficulty within the meaning of Section 2.1. (point 30, read in conjunction with points 4 to 8) of the guidelines.
(157)
Point 4 of the guidelines assumes that a firm is in difficulty ‘where it is unable, whether through its own resources or with the funds it is able to obtain from its owner/shareholders or creditors, to stem losses which, without outside intervention by the public authorities, will almost certainly condemn it to go out of business in the short or medium term’. In the case of BGB, these circumstances clearly obtain. Although the measures in question, which benefited BGB before its business activities were terminated, were taken by the Land of Berlin, i.e. by BGB's majority shareholder, it had already been noted that a market-economy investor would not have provided those resources on the same terms.
(158)
Without the Land aid measures, the capital ratios would have fallen below the thresholds prescribed by the Banking Law, with the result that BAFin (known at the time as BAKred) would have had to take the necessary measures under Sections 45 to 46a of the Banking Law, including, for example, temporary closure. Moreover, at the time the aid was granted, BGB satisfied other criteria governing the definition of a firm in difficulty under point 6 of the guidelines; these include increasing losses, mounting debt, rising interest charges and falling net asset value.
(159)
According to point 28 of the guidelines, aid for restructuring can be granted only if strict criteria are met and if it is certain that any distortions of competition will be offset by the benefits flowing from the firm’s survival, particularly where the net effect of redundancies resulting from the firm going out of business would exacerbate local, regional or national employment problems or, exceptionally, where the firm’s disappearance would result in a monopoly or tight oligopolistic situation.
(160)
The latter can be ruled out as regards Berlin given the number of banks doing business there and the structure of the market for private and corporate business, on which BGB in the shape of Berliner Bank and Berliner Sparkasse is still the market leader. In the event of any bankruptcy on the part of the leading regional bank and the sale of its component parts that would presumably follow, no deterioration of the economic structure is, therefore, to be anticipated. This is conceivable only in an extremely improbable and hence theoretical scenario in which, following the insolvency of one of the larger regional competitors, all the subsidiaries/assets of BGB that account for its strong regional position were acquired. Even then, however, the emergence of a monopoly or a tight oligopolistic situation is to be ruled out in view of the merger control procedure that would follow. The position of BGB on national and international markets is not sufficiently strong to result in a monopoly or oligopolistic situation following any bankruptcy and any ensuing disposals. Germany has not disputed this assessment by the Commission, which was set out in the decision initiating the procedure.
(161)
As regards the economic and social repercussions in Berlin, Germany has already provided an estimate in which the impact of BGB’s restructuring is compared with the impact of its going out of business/bankruptcy, especially in connection with employment and tax revenue for the Land of Berlin. It was claimed that an insolvency would lead to the loss of 7 200 jobs in Berlin (a decline of 59 %) by 2006, instead of the 3 200 jobs (a decline of 26 %) that would be lost in the restructuring scenario. The Land’s tax receipts in 2006 would fall by EUR 70 million in the event of a restructuring and by EUR 150 million if no restructuring took place. In the decision initiating the procedure, the Commission noted that it could not verify these estimates as no further explanations had been provided.
(162)
Germany has provided additional information, including a calculation by the German Institute for Economic Research (DIW) according to which, if BGB had become insolvent, this would have resulted in the loss of between just over 7 000 and just under 10 000 jobs in Berlin (of the 12 200 jobs that existed in Berlin in 2001), whereas, according to the updated plan, the restructuring would lead to a loss of some 3 500 jobs in Berlin by 2006. The Commission regards as excessive the job losses assumed in the case of insolvency since in this eventuality too the business areas deemed to be fundamentally viable could have been retained by acquirers in a likewise restructured form. Moreover, the job losses - currently estimated at some 5 000 - that would result in Berlin as a result of the restructuring are significantly higher than originally assumed. In any event, the Commission agrees with the assessment by Germany that a sudden insolvency would basically have resulted in significantly more job losses than an orderly and longer-term restructuring because a sudden insolvency would have led to ‘fire sales’ and the closure of areas of business that could be restructured. Account also has to be taken of the indirect job losses resulting from domino effects. Accordingly, direct and indirect tax effects would lead to annual revenue shortfalls which, at some EUR 300 million a year, can be seen as significant, especially since they continue for many years. To that extent, the Commission agrees with the Federal Government that the firm’s survival will have economic and social advantages.
(163)
In its notification, Germany had, in the case of a hypothetical insolvency scenario, also identified factors that would result in losses for LBB as well as the Land’s obligations to provide support. However, without any clear identification and quantification of these liability risks, the Commission could not make a proper assessment of these economic effects. In the course of the proceedings, Germany thus presented a legal opinion and calculations relating to the repercussions - over and above the revenue shortfalls mentioned - of a hypothetical insolvency of BGB for the Land of Berlin. These repercussions would materialise as a result of the very complex risk interlinkage within the firm (including internal loans, comfort letters, and profit-and-loss pooling arrangements), in conjunction with the institutional and guarantor liability for LBB that will continue until 2005.
(164)
According to Germany, the insolvency of BGB would lead for LBB, which is linked to it by virtue of an atypical undisclosed holding, loans and guarantees, to losses amounting to between some EUR 18,5 billion and EUR 25 billion consisting essentially of: the declining value of LBB’s claims on BGB (in the case of a balance-sheet total of EUR [...]* and depending on the default rate, some EUR [...]*- EUR [...]*) and of claims on customers (in the case of a balance-sheet total of some EUR [...]* and depending on the failure rate, some EUR [...]* - EUR [...]*); recourse to guarantees granted to BGB Finance in Dublin (some EUR [...]*- EUR [...]*); and insolvency costs (some EUR [...]*).
(165)
According to Germany, this scenario would impose charges of some EUR 31 billion to EUR 40 billion on the Land. It was assumed here that the Land decides to terminate LBB’s business and would, therefore, exercise not the institutional liability but the guarantor liability of the Land, i.e. liability for the total amount of LBB’s liabilities not covered by assets (24). The amount covered by the guarantor liability was estimated at between some EUR [...]* (base case) and EUR [...]* (worst case). Other charges on the Land amounting to between some EUR [...]* (base case) and EUR [...]* (worst case) would result under this scenario from the claims of the Deposit Guarantee Fund of German private banks. (25) It was also assumed that the Land’s capital injection of just under EUR 2 billion would be lost and that the provision of liquidity during the winding-up would have interest-rate costs of some EUR 5 billion.
(166)
The Commission has checked these figures and calculations and asked for further explanations. It has come to the conclusion that, in a hypothetical insolvency scenario, the existing state guarantees for LBB would impose on the Land substantial charges for which only a rough estimate could be made, with a distinction having to be drawn in any event between the subscenarios with or without the continued existence of LBB and assuming institutional liability.
(167)
According to its own estimates, which are based on the figures supplied by Germany, the Commission assumes that, if LBB were to continue in business, the charges on the Land would be of the order of some EUR 13 billion to EUR 20 billion or more. This would comprise first the loss of the Land’s share in BGB's capital (just under EUR 2 billion). In addition, by virtue of its institutional liability for LBB, the Land would have to offset the effects of the claim represented by the guarantees granted by LBB to BGB Finance in Dublin (estimated by the Commission at some EUR [...]*) and the decline in value of LBB’s claims on BGB (estimated at around EUR [...]*) to the extent that, subject to compliance with the solvency criteria, its continuing operation could be properly safeguarded. In view of the possible claims - indicated by Germany - of the Deposit Guarantee Fund of German private banks, a number of uncertainties exist - [...]*. Substantial legal doubts also exist regarding the legal validity of LBB’s liability for certain third-party claims stemming from the fund business in the real estate services area (e.g. prospectus liability, exemption declarations for shareholders of investment and ad hoc companies acting in a personal capacity). Any risks cannot, therefore, be quantified.
(168)
In the event of termination of LBB’s business, there would be additional charges for the Land of approximately EUR 8 billion (some EUR 6 billion as a result of the loss in value for LBB of claims on customers as a result of liquidity problems triggered by the insolvency - virtually as a domino effect - for customers (in particular investment companies, shelf companies and residential property companies) and around EUR 2 billion by way of depreciation on participating interests).
(169)
In the course of the proceedings, Germany has also claimed that, in the event of the hypothetical insolvency of the real estate service business (divestment and liquidation without the risk shield), these scenarios would not be significantly affected because of the risk interlinkage within the company. Of decisive importance here are the large amount of lending to subsidiaries in the growing and, at the same time, increasingly difficult real estate service business (IBAG/IBG/LPFV, including the IBAG subsidiaries IBV and Bavaria) by the group’s subbanks (BGB, LBB and BerlinHyp), as well as the profit-and-loss pooling arrangements between IBG and its subsidiaries Bavaria and IBV, on the one hand, and BGB and IBAG, on the other. In addition, BGB gave guarantees in respect of all the liabilities of IBG, Bavaria and IBV that were justified at the end of 1998. The Commission has no reason to doubt these observations by Germany. To this extent, it agrees with Germany that divestment and liquidation of the real estate service business IBAG/IBG/LPFV would, without the risk shield, also lead to the insolvency of BGB, together with the consequences described above, because of the risk interlinkage.
(170)
Lastly, it should be pointed out that the repercussions of a hypothetical insolvency of BGB - with or without the survival of LBB - are difficult to calculate and that the estimations are subject to considerable uncertainty. The charges for the Land can, therefore, be estimated only roughly and range from some EUR 13 billion to over EUR 30 billion. However, taking a probable value between these extremes, it can be concluded that, with the help of the aid measures in question, a restructuring will impose less onerous charges on the Land of Berlin.
(171)
During the proceedings Germany has not claimed that BGB or other firms in the group provide services of general economic interest within the meaning of Article 86(2) of the EC Treaty. Accordingly, as stated in the decision initiating the procedure, the Commission has assumed that this aspect is of no relevance to the assessment of the measure in question and has concluded that aid cannot be approved on the basis of Article 86(2).
(172)
According to point 3.2.2(b) of the guidelines, the grant of aid is conditional on implementation of the restructuring plan, which must be endorsed by the Commission in the case of all individual aid measures and examined to determine whether it is likely to restore the firm’s long-term viability within a reasonable timescale. The restructuring plan must be of limited duration and be based on realistic assumptions. It must describe the circumstances that led to the firm's difficulties, thereby providing a basis for assessing whether the proposed measures are appropriate. It should enable the firm to progress towards a new structure that offers it prospects for long-term viability and enables it to stand on its own feet, i.e. it should enable the firm to cover all its costs including depreciation and financial charges and to achieve a sufficient return on its capital for it to compete in the marketplace.
(173)
The Commission has based its assessment on information furnished by Germany, including detailed plans for the individual restructuring measures, forecast profit and loss accounts for the restructuring period 2001 to 2006 on the basis of a best-case, a worst-case and a base-case scenario, an analysis of the structural deficits responsible for the difficulties and the costs of the planned restructuring measures. In making its assessment, the Commission also relied on information supplied by Germany on the current implementation of the restructuring plan and on modifications to individual measures including the scheduling of the sale of specific assets.
(174)
In view of the failure of the initial attempt at privatisation and BGB’s large annual loss of approximately EUR 700 million for 2002, the Commission considered it necessary, following notification by Germany at the end of March 2003, to investigate by its own means the bank’s viability once more in depth and, if no clear conclusions could be drawn, to have it examined by independent outside experts. The Commission’s aim was to establish with a sufficient degree of certainty that BGB can continue to compete in the marketplace on its own merits without any further state support. Without such a sufficient degree of certainty or if doubts subsist, the Commission would have to take a negative decision on all the measures at issue on the basis of the restructuring plan submitted. The failure of the privatisation process raised in particular doubts about the soundness of the remaining real estate financing business. Admittedly, the annual loss of approximately EUR 700 million (after tax) was due predominantly to exceptional items (minus EUR 593 million), in particular substantial write-downs on Euro-Stoxx holdings of EUR 399 million, while the operating result less the provision for contingencies was only slightly negative (minus EUR 23 million) and was indeed around EUR 30 million better than that anticipated in the plan for 2002 (minus EUR 53 million). However, this heavy loss had a considerable negative impact on the core-capital ratio intended as a cushion against possible further losses and hence essential to viability, which dropped as a result to 5,6 % and thus by a considerable margin of almost [...]* % fell short of the [...]* % figure originally planned for 2002.
(175)
It should be pointed out in this connection that in early 2003 the Commission had held talks with Germany about whether further compensation measures were possible in the retail field. Germany quantified the effects of a separate sale of Berliner Bank under the conditions then prevailing in such a way that the Commission could not be sufficiently certain that the remaining group could continue to compete in the marketplace on its own merits.
(176)
The Commission’s investigation focused in particular on the credit risks and risk provision in the real estate financing field and, to a lesser extent, in the capital market field. In the Commission’s opinion, the doubts about viability could have been allayed if the real estate financing business or at least the major part of it, together with its attendant risks, had been effectively insulated from the remainder of the group, e.g. by an early separate sale of the business. Up until June 2003, however, Germany presented figures which made it appear to the Commission that the scenario of such an outflanking, effective insulation of this business was not feasible. The main reason given was that the sale would have led to an immediate transfer of the assets of the real estate financing business (especially BGB’s stake in BerlinHyp with a book value of EUR [...]*) from capital assets to current assets. This would have necessitated a valuation of those assets at the current market value, [...]*. The resulting exceptional losses would, so Germany stated, have placed such a heavy burden on BGB’s capital resources that without further state support its viability would no longer have been assured.
(177)
Once such a short-term insulation of the remainder of the group from the risks of the real estate financing business no longer seemed possible, the Commission had no other choice but to appoint independent experts to examine BGB’s viability under the existing restructuring plan. The outstanding issue was whether, in view of the existing risks in the real estate financing field, the risk provision could be regarded as adequate. The report mandate issued on 14 July 2003 for the auditing firm Mazars, which had been selected as the Commission’s advisers, was, however, comprehensive and also covered other risks to the bank’s viability (e.g. the capital market business of wholesale/foreign banking).
(178)
The draft report was submitted as agreed on 30 September 2003. The main findings were discussed with Germany on 3 October. The final version of the report was transmitted to Germany on 20 November. In the light of the report by Mazars, the Commission, on the basis of the restructuring plan as it stood in the summer of 2003 (which did not yet include the divestment of Berliner Bank as this was offered by Germany only after completion of the study), came to the conclusions regarding the bank’s viability that are set out below.
(179)
In January 2002 Germany submitted to the Commission, together with the notification, a detailed market study carried out by the bank and Morgan Stanley in which the current situation and the prospective situation in the banking market in Germany, and in Berlin in particular, are described. The Commission considers the market study, including the information which was submitted after the initiation of the procedure to be complete and inherently conclusive. On the points commented on in the decision to initiate the procedure, the Commission refers to Germany’s additional submissions set out in paragraph 58 et seq.
(180)
Germany stated in particular that BGB’s retail business (private and corporate customers) was concentrated on the Land of Berlin and the immediately surrounding area, which constituted the relevant geographic market. In the most important market segments, i.e. in particular deposits and lending, BGB’s market share during the years before the crisis underwent only slightly positive or negative changes or else remained unchanged. In Berlin a significantly larger number of inhabitants (just under 4 000) were served by a branch than the German (1 300) or European (1 800) average. In future, the number of branches would continue to fall slightly as customers increasingly carried out transactions on the Internet. Although there was in principle no surplus capacity, there was, however, intensive competition which further increased the pressure on margins and promised further consolidation.
(181)
In the real estate financing field, the German mortgage lending rate was very low compared with the rest of Europe, and an increasingly strong concentration process was to be observed among mortgage lenders. Moreover, no substantial new company had been set up in the mortgage lending field in recent years. The heterogeneous supply-side structure and the resulting competition were also major reasons for the lack of profitability of the mortgage lending business in Germany. In the past, market participants had been able to achieve growth only through very aggressive pricing, which, however, in many cases later led to significant value adjustments, as the example of BerlinHyp or BGB showed. The strong fragmentation of the market had resulted in intensive competition and considerable pressure on margins. Whereas in western Germany demand was increasing, in the east a further consolidation was taking place in rents and asset prices. Generally speaking, demand looked set to grow over the next few years in some areas of the real estate market in Germany. Owing to the intensive competition and a further tightening of the regulatory environment, a significant recovery of the German mortgage market as a whole was not, however, to be expected.
(182)
With regard to the real estate services business (funds business and project development/building work), no surplus capacity was directly perceivable in the domestic funds business. There was, however, highly intense competition, albeit largely unchanged for some time. It should be noted here that a commitment was given in the course of the procedure to hive off the entire real estate services business from BGB.
(183)
In the capital market business, BGB is, according to Germany, active in share and bond trading (for its own account and on behalf of customers), in derivatives issuing and trading, and in foreign exchange and currency business as well as other money market transactions, mostly with German customers. The crisis in the capital markets had led to a sharp drop. The question of surplus capacity could not be answered conclusively as yet. A sharpening of competition and an increasing marginalisation of smaller competitors such as BGB to the benefit of larger providers were, however, expected.
(184)
To sum up, the Commission would point out, in reply to Germany’s arguments, that it takes a positive view in principle of the future development of the market environment and the market prospects of BGB in the retail business and the capital market business. In view of the better economic situation that is expected in the years ahead in the light of more recent data, relatively stable earnings should be achieved here. It is substantially for the company itself to translate its market strategies successfully into practice. On the other hand, the position with regard to the real estate financing business looks less favourable owing to the consolidation process, which is apparently not yet finished. The bank might thus have to adapt its strategy further in line with future developments in this area, where appropriate through further targeted contractions of the business should this prove necessary. Once the real estate services business has been split off from the bank by the end of 2005, market developments in this area will play no more than a subordinate role as far as the bank is concerned.
(185)
In assessing the structural and operational deficits responsible for the bank’s difficulties, the Commission would refer to the information provided by Germany. It considers the analysis of the past deficits to be appropriate overall and to represent a suitable starting point from which to bring them under control and to draw up the restructuring plan.
(186)
The Commission concludes that BGB’s crisis was due above all to the accumulation of risks in the real estate services field through a steady increase in the granting of long-term rent, dividend and renewal guarantees which, from a business standpoint, could be regarded neither as manageable nor as reasonable from a cost/benefit angle. Instead, these were based on entirely unrealistic market estimates which can be described more as wishful thinking. The same applied to the real estate financing business: an aggressive rates policy that was aimed at achieving higher market shares and did not adequately cover the lending risks and the incorrect valuation of securities due to negligence led during the economic downturn of the late 1990s to massive loan defaults and corresponding losses.
(187)
In addition, in both the real estate services and the real estate financing businesses, huge influence was exerted by a few local politicians who did not have the bank's business interests at heart or who lacked the necessary financial knowledge and gave priority to supposed local development objectives. In so far as these acts are punishable under criminal law, the matter is in the hands of the Berlin judicial authorities. These economically unjustifiable practices were greatly facilitated by a system for recognising and controlling risks which can be described as rudimentary and in no way appropriate to the standard requirements of effective risk management. Neither the bank’s managing board nor its supervisory board adequately fulfilled its responsibility to manage or supervise the company properly. It must be added, however, that the then auditors and competent supervisory authorities likewise woke up far too late to the continuing accumulation of risks with which the bank could ultimately no longer cope and took the appropriate measures only shortly before the crisis broke.
(188)
That the onset of the crisis could be delayed so long was a reflection of the fact that, as part of the group, Landesbank Berlin benefited from the comprehensive state guarantees, institutional liability and guarantor liability and refinanced the whole group, irrespective of the true business risks, at little cost on the capital markets and that the economic effect of institutional liability and guarantor liability was extended via private-law guarantee vehicles to other group companies, thereby making possible many transactions which made no sense for the bank. The abolition of institutional liability and guarantor liability in July 2005 will ensure that a crisis engendered in this way will no longer be possible in future or will be recognised in time by the market and that the taxpayer will no longer have to stump up billions as a result.
(189)
Mazars analysed the detailed restructuring plan, as it stood in the summer of 2003 (it did not therefore include the divestment of Berliner Bank). The plan provided for measures which, in the Commission's opinion and in line with the assessment made by Mazars, are overall suited to clearing the structural and operational deficits responsible for the difficulties of the past and to restoring the company’s long-term viability.
(190)
The restructuring plan to overcome the bank’s structural and operational deficits consists, on the one hand, of measures for the disposal, merger and liquidation of subsidiaries or business areas with a view to the future concentration of the bank on its core business and, on the other, of measures to increase the efficiency and profitability of the core business (reorganisation sphere) itself through cost reductions, concentration of activities and reduction of risk positions. Some of the restructuring measures, both within and outside the core business, may be regarded simultaneously as measures to compensate competitors in so far as they result in a reduction in the bank’s market presence. The restructuring plan relates to the period 2001 to 2006.
(191)
The target structure of the restructuring plan as submitted to the Commission in the summer of 2003 is that of a regional bank focused on the core business of retail banking (private banking and corporate banking under the names Berliner Sparkasse and Berliner Bank), supplemented by higher-margin capital market business (BGB and LBB) and real estate financing business (BGB, LBB and BerlinHyp). In 2006 the retail business should accordingly contribute just over [...]* of the group’s earnings (just under EUR [...]*), the capital market business about [...]* % (approximately EUR [...]*) and real estate financing about [...]* % (approximately EUR [...]*). Owing to the relatively higher share of the costs accounted for by retail banking, retail and capital market business should, however, contribute about [...]* to the operating result.
(192)
The essential principles of the restructuring are the permanent restoration of the bank’s earning power and the lasting reduction of its costs, the lessening of risks to a normal market level and, through this, the improvement of the bank's ability to access the capital market. Specifically, during the restructuring period 2001 to 2006, the operating result should, as presented to the Commission in the summer of 2003, improve to well over EUR [...]* a year and, to this end, administrative expenditure above all should be reduced disproportionately by just over EUR [...]*. Risk positions, which are decisive when it comes to calculating the core-capital ratio, should be reduced between 2001 and 2006 by about [...]* % from just under EUR [...]* to a little over EUR [...]*. The bank aims to raise the core-capital ratio in the medium term to at least 7 %.
(193)
In view of the main reasons for what went wrong at BGB, key measures such as a radical reduction in the number of employees by more than half overall (from some 15 000 to some 6 500), the abandonment, reduction or systematic closure of high-risk business areas or business areas not belonging to the core business of a regional retail bank, better internal control mechanisms and leaner structures both in-house and in subsidiaries are, in the opinion of the Commission and its advisers, reasonable steps towards making the company profitable once more and erasing the mistakes of the past. The operational improvements stem from internal measures and include the abandonment of loss-making activities. The Commission, in the light of the analysis undertaken by Mazars, views the prescribed measures as basically sound. They have already largely been implemented or are on schedule. The detailed picture is as follows:
(194)
For retail business in the private banking field, the original restructuring plan consisted in focusing on regional business under the names Berliner Sparkasse and Berliner Bank (the latter is now, according to Germany, to be divested separately), optimising the workflow and substantially cutting back the workforce. The plan, which has already largely been implemented, provides for the disposal of holdings which do not fit in with the defined regional core business and for branch closures. Total earnings are set to [...]* in the reorganisation sphere from 2001 to 2006, while total administrative expenditure during the same period should fall by more than [...]* % and profit before tax should rise from below minus EUR [...]* to about EUR [...]*. Risk positions are to be significantly reduced. The number of employees is to be cut from about 6 000 in 2001 to a little over [...]* in the reorganised group in 2006. Private banking’s cost/income ratio is to be improved from just under [...]* % in 2001 to just under [...]* % in 2006.
(195)
These measures have already been largely implemented according to plan. Only the sale of Weberbank with a total asset value of EUR 4,4 billion has been delayed but the likelihood is that it will be able to go ahead in 2004. The Commission, in line with the analysis conducted by Mazars, considers that the plan at this stage is a sound basis to achieve long-term viability in the private banking field.
(196)
The measures taken or scheduled under the original plan in the private banking field have an extensive impact at the same time in the corporate banking field, in which category the remaining part of the public sector segment will in future be placed. The plan provides for a cessation of corporate banking outside Berlin. Total earnings are set to fall only slightly, while total administrative expenditure during the same period should fall by just under [...]* % and profit before tax should increase from about EUR [...]* to about EUR [...]*. Risk positions are to be reduced significantly. Staff numbers are to be cut by more than [...]* %. Corporate banking’s cost/income ratio is to be improved from just under [...]* % in 2001 to a little over [...]* %.
(197)
As confirmed by Mazars, these measures had already largely been implemented or were generally on schedule. The Commission considered them likely, as the plan stood; to achieve satisfactory profitability in the corporate and public sector banking business and to restrict the bank to its core business in the Berlin/Brandenburg region in this field too.
(198)
The capital market business is being restructured to free up capital through a suitable reduction in risk positions and to enhance workflow efficiency. To this end, own-account business (share and interest credit products) in all capital market areas is to be concentrated under one roof, clearly separated from private banking and reduced overall. It is to be restricted to Germany, Europe and the United States, while the emerging-markets business is to be abandoned. The interest derivatives portfolio is also to be sharply reduced and limited to customer-oriented positions. On the other hand, the less risky non-bank customer business is to be expanded, especially in relation to interest-rate and equity products. Total earnings should fall only slightly between 2001 and 2006, while total administrative expenditure should fall by about [...]* % during the same period and profit before tax should increase by about [...]* %. Risk positions should be reduced by about [...]* %, as should the workforce. It is intended that the cost/income ratio of the capital market business should be improved from just over [...]* % in 2001 to about [...]* % in 2006.
(199)
According to Mazars, the planned measures had been largely implemented or were on schedule. The Commission considers them to be sufficient to safeguard the earning power of this business in the future and, at the same time, to keep the risks to the bank within manageable proportions. In the Commission’s opinion, the focusing on non-bank customer business and the concentration and organisational separation of own-account business improves transparency, reduces risks and helps the bank to manage these better. Thanks to the significant reduction in risk positions, capital will be freed up, and this will be conducive to increasing the capital ratio and hence to securing the bank’s future capital market capability once institutional liability and guarantor liability have been done away with.
(200)
In restructuring the real estate financing business, risk reduction has top priority. To this end, an inventory of risks is gradually to be compiled with a view to eliminating the worst risks and restricting new business to low-risk customers. The risk management function is to be expanded. The workflow is to be optimised and risk control improved. The core business is to include in future the financing of commercial investors and residential property construction companies primarily in selected large cities in western Germany less hard-hit by the crisis in the real estate market as well as, to a certain extent, in Berlin and Brandenburg. The financing of commercial investors is a relatively stable, low-risk business. A supra-regional focus is necessary to diversify risk and ensure a sufficiently varied portfolio as well as to exploit regional growth potentials and existing regional market know-how. Without supra-regional components in real estate financing, there was a threat of a substantial worsening in the credit rating and in refinancing rates. On the other hand, there is to be a move away from high-risk segments of the real estate business with unsatisfactory margins. The bank considers an improvement in earnings from new business through a reorientation of such business to be realistic.
(201)
In order to improve earnings from existing business, risk specialists are to be employed increasingly for risky commitments. This will, according to the bank, lead to a review and critical reassessment of existing business, where appropriate with the help of outside consultants acting on instructions from and in conjunction with the team of in-house experts. Direct personnel and non-personnel costs are to be reduced by about [...]* % by 2005. Another important means of improving earnings is the development of reorganisation strategies for non-performing commitments and the introduction in 2002 of group-wide risk control, which previously existed in only a few areas, as well as the introduction of suitable early-warning instruments.
(202)
Total earnings from 2001 to 2006 are set to rise by just over [...]* % to [...]*. Total administrative expenditure during the same period should, however, fall by about [...]* %. Pre-tax profit should increase from distinctly negative figures to about EUR [...]* in 2006. Risk positions should be reduced by over [...]* % and the cost/income ratio of the real estate financing business should rise by about [...]* %, inter alia owing to the above-mentioned cost-intensive measures aimed at introducing better risk management, to a little over [...]* %.
(203)
These measures had already largely been implemented or were, in most instances, on schedule. The Commission regards them fundamentally as steps in the right direction. However, in the opinion of the Commission and its advisers, implementation of the desired improvements is, as regards data quality, still behind schedule. This unsatisfactory state of affairs might hamper the operability of the risk management system.
(204)
In addition, the Commission, in line with Mazars’ findings, doubts whether the bank will succeed in generating in future a sufficient volume of business with the desired high margins from customers with low risk profiles. According to Germany’s own data, the real estate financing market is characterised by highly intense competition and is currently in the middle of a consolidation process. As the most attractive market segment in the real estate financing field, the target customers aimed at by BGB are also being strongly wooed by other suppliers. Any slippage from target would have a direct impact on the desired future interest surplus. On the basis of the figures for the summer of 2003 made available to the Commission’s advisers, the underperformance at the time in the generation of new business would have led on an extrapolated basis to a considerable interest earnings shortfall. If the underperformance were to deteriorate in future, then the shortfall in interest earnings would likewise increase. The future generation of sufficient new business depends crucially on market trends in the Berlin/Brandenburg region, where the focal point of BGB’s business continues to lie. If the bank were to have insufficient success here, this would have a lasting impact especially on the value of BGB’s holding in BerlinHyp and would necessitate further write-downs in the current book value of EUR [...]*, which would have a negative effect on earnings and, perhaps, the core-capital ratio of the bank. This question is discussed in greater detail below (paragraph 249). In line with Mazars’ findings, the Commission considers, however, that the bank's overall viability is not called into question by the remaining problems in the real estate finacing business.
(205)
The bank intends to withdraw entirely from the large customer/foreign business area, which also includes consultancy business in the mergers and acquisitions field and structured finance/project financing and is not viewed as forming part of the bank’s core business. It accordingly stopped acquiring new business in principle in 2002. In view of long-term commitments, especially in the structured finance field, an immediate exit is not possible, however, the only option being an extensive reduction in risk positions of about [...]* % by the end of the restructuring period in 2006. The remainder is to be terminated as soon as possible, apart from a limited number of export financing operations covered by export credit agencies and medium- to long-term financing of goods transactions in selected target countries in central and eastern Europe on the basis of proven country expertise; these are being integrated into the capital market business and are to be retained.
(206)
The reductions to do are largely as planned. In the Commission’s and Mazars’ opinion, they are aimed at discontinuing this business area as a whole as soon as possible in an orderly manner and, thanks to the massive reduction in risk positions, at freeing up significant amounts of capital which will help to ensure future capital market capability. The abandonment of this relatively high-risk business area with high individual financing volumes, which does not form part of the core business, will also considerably ease the burden on management, which will be better able to perform its priority tasks in the key areas. The original plan of reductions was amended, however, in June 2003 to take account of the unfavourable market conditions in 2002. This might cause some, but on the whole not significant delay in the reduction of risk positions.
(207)
As an addition to its notification, Germany offered in its response to the Commission’s decision to initiate the procedure not only a scaling down of the real estate services business but also its complete spin-off and - apart from a few companies to be defined and still sellable on the market - transfer to the Land of Berlin by the end of 2005 as a further compensatory measure. This measure accordingly became part of the restructuring plan. It covers all the real estate services companies protected by the April 2002 risk shield, and in particular IBAG, Bavaria, IBV, IBG and LPFV.
(208)
The April 2002 risk shield covers all risks from the bank’s old business in the real estate services field transacted before the cut-off dates mentioned above. This means that risks to the bank in the real estate services business area now arise only from new business transacted after those dates. Since the market for real estate services is still to be regarded as problematic and is characterised by a high degree of forecasting uncertainty, the Commission, supported by Mazars, considers the continuing significant reduction in new business in the real estate services field to be an important contribution to the restoration of long-term viability and concentration on the core business of a regional bank. The transfer of old business protected by the risk shield to the Land of Berlin at the market price likewise enables the bank to free up resources previously tied up outside the core business, although the transfer of old business already covered should not as such have any significant impact on the bank’s risk situation.
(209)
The Commission, in line with Mazars’ findings, considers the complete abandonment of the real estate services business area to be to be a clear, economically meaningful step which should contribute to the long-term stabilisation of the bank’s results. This measure should therefore be viewed favourably by the capital market and should ease the planned privatisation of the bank.
(210)
The planned staff reductions during the restructuring period from 2001 to 2006 amount for the whole group to some 8 500, i.e. a reduction of almost 60 % from over 15 000 employees to just over 6 600. By 30 September 2003, the workforce comprised some 10 000 employees in total, i.e. a reduction of almost 5 200 or about 35 %. These figures are largely as set out in the plan.
(211)
The financial measures are, in the opinion of the Commission, supported by its advisers Mazars, necessary and appropriate as a means of restoring BGB’s financial stability from the point of view of liquidity and capitalisation and of ensuring its refinancing on the capital markets as well as the financing of its restructuring. They consist of measures relating both to own capital and to borrowed capital. The details are as follows:
(212)
The Commission takes the view that the sale of assets and participations will provide the bank with liquidity and reduce risk positions outside the core area. It is not clear, however, that accounting profits of any significance overall can be achieved in this way.
(213)
The refinancing of the bank rests on three main pillars: savings deposits (approximately one third), bank deposits (approximately one third) and securitised liabilities (approximately one quarter). Consolidated liabilities fell from EUR 185 billion at the end of 2001 by EUR 32 billion to EUR 153 billion in mid-2003. This exceeded by a significant margin the planned target for 2003 of a little over EUR 160 billion. By 2006 the figure should have fallen to just under EUR [...]*.
(214)
To prepare for the abolition of state guarantees, the bank aims to switch from its at present relatively large stock of short-term liabilities to medium- and long-term liabilities and to re-enter the capital market in the area of unsecured liabilities. To this end, it has drawn up objectives for the issuance of secured and unsecured liabilities and is seeking thereby to rebuild the trust of the capital market and to expand the investor base. It has held talks with ratings agencies about the realistically attainable rating in the event of successful implementation of the restructuring plan on the basis of the base-case scenario (A- or A3). [...]*. On the whole, an average increase in refinancing costs of [...]* basis points can be reckoned on as a result of the abolition of state guarantees in mid-2005.
(215)
The Commission considers, in line with Mazars’ findings, that the bank’s refinancing strategy, and in particular the base scenario drawn up and the inference of correspondingly higher refinancing costs, is fundamentally plausible. However, a question mark hangs over the bank’s future refinancing because of potential reluctance on the part of market participants, which might materialise especially if the bank’s results fail to come up to expectations. In such an event, still higher refinancing costs would have to be reckoned with. What is more, how far possible saturation effects might be observed in the market in mid-2005 if all public banks in Germany lose the state guarantees is not yet fully foreseeable. The placing of certain securities issues might then be at least hampered.
(216)
For this reason, the Commission sees in the further reduction of risk positions an essential precondition for the successful implementation of the restructuring plan. If the problems described were to occur in future, the bank could effectively combat them by stepping up the reduction effort and thus favourably influence the confidence placed in it by the capital market.
(217)
Another essential precondition for securing the confidence of the capital market is the attainment of a satisfactory core-capital ratio that can act as a buffer against any losses incurred. The core-capital ratio depends firstly on the extent of the risk positions and secondly on that of the core capital itself. The bank is aiming at a core-capital ratio at the end of the restructuring period of more than 7 %. A capital contribution by shareholders, in addition to the August 2001 capital increase, in order to further improve the bank’s capitalisation is, however, not likely before privatisation takes place at the end of 2007. Accordingly, if it is to increase its core-capital ratio, the bank must fall back in particular on a reduction in risk positions or the sale of assets.
(218)
The Commission is aware that the statutory minimum core-capital ratio of 4 % is insufficient to give a bank the necessary breathing space in day-to-day business. In its rescue aid decision of 25 July 2001, the Commission therefore recognised a core-capital ratio of 5 % as being necessary in order to enable a bank to continue to exist. This was based essentially on a letter from BAKred, as it then was. As confirmed by Mazars, the Commission is also aware that in the financial markets a core-capital ratio of 6 % is generally mentioned as being the threshold below which questions arise as to the strength of the institution concerned and the confidence of the financial markets suffers. According to Mazars, ratings agencies tend to view core-capital ratios as a reflection of a bank’s financial strength, which is why credit institutions generally strive to exceed the required capital underpinning in order to ensure sound ratings, this being a precondition for access to the international capital markets on reasonable terms. A capital ratio higher than 6 % may also be wise in the light of the reform of international agreements within the Basel II framework and the abolition of state guarantees in order to fulfil the market’s expectations of greater strength especially on the part of Land banks and thereby to achieve a better rating. The bank is aiming at an A rating and considers a core-capital ratio of at least 7 % to be necessary for this. On the basis of comparable market data (with the average core-capital ratio for the sector in Germany of 6 % being low by international comparisons and with 8 % or even higher being the average value for reputable credit institutions at European level), Mazars considers it indispensable for the bank to achieve in the medium term at least a core-capital ratio of some 6 to 7 %.
(219)
The Commission, in line with Mazars’ findings, likewise regards a medium-term increase in the core-capital ratio to over 6 % as being desirable. However, an increase to over 6 % is, in the Commission’s opinion, solely a commercial objective the responsibility for which must be assumed by the bank and thus cannot be financed by state aid. The bank’s competitors are faced with the same market situation but have to increase their core-capital ratios on their own without any state support. Authorisation of an increase in the core-capital ratio using state resources to over 6 % would therefore unjustifiably place the bank in a better position than its competitors, without this being absolutely essential to the bank’s viability at the time of the decision. The aid would accordingly no longer be kept to the minimum required.
(220)
For this reason, the Commission has insisted that, under the agreement between the Land of Berlin and the bank of 26 December 2002 on the treatment of any claims to repayment brought by the Land arising out of a Commission decision in aid case C 48/2002, the amount of any repayment claim will be left in the bank in the form of a deposit only as far as is necessary to attain a core-capital ratio of 6 % (or a total capital ratio of 9,7 %, as already acknowledged in the decision on the rescue aid) on the basis of the 2002 annual accounts. However, this agreement can be approved by the Commission only in so far as the amount calculated under the agreement also does not lead to any overstepping of the core-capital ratio of 6 % for the BGB group as at 1 January 2004 and hence on basis of the figures current at the time of the Commission decision (thus taking into account the hiving off of IBB promised by Germany and described in paragraph 279).
(221)
On the basis of the same considerations, the Commission has ensured that Germany commits itself to leaving the IBB reserve in the context of the divestment of government assistance business in 2005 in the bank only as far as is necessary to maintain the core-capital ratio at a level of 6 % on the reference date of 1 January 2004. This measure is to be viewed as part of the compensation to be provided by the bank in order to limit in the interests of competitors the distortions of competition caused by the aid. The above refunding of the IBB reserve ensures that, in the context of the divestment of government assistance business, the bank does not have a core-capital ratio in excess of the minimum essential to long-term viability which it might be able to use for expansive business strategies damaging to competitors. If the bank subsequently wishes to achieve a higher core-capital ratio, then it must do so via suitable changes to the risk assets, by building up reserves through its own efforts or by borrowing further funds on the market at the time of or following privatisation.
(222)
To sum up, the Commission, in line with Mazars’ findings, proceeds on the assumption that the bank will, in its own well-understood business interests, make every effort in the long term to reach a core-capital ratio which results in a satisfactory rating from its point of view. According to the bank, this is at least 7 %. The bank has almost three years before the end of the restructuring period in 2006 in which to raise the core-capital ratio through its own efforts from [...]* % to 7 % or more. The Commission considers the aim of successfully implementing the relevant measures so as to further increase the core-capital ratio within this period to be realistic.
(223)
Since the Commission was unable in the spring of 2003 to allay, on the basis of its own analysis, the remaining doubts as to the bank’s viability raised by the failure of the privatisation process and the strongly negative aggregate result for 2002 and since a suitable, effective insulation of the credit risks existing above all in the real estate financing field was, according to Germany, impossible to achieve without further aid, the Commission made sure with the help of independent experts that, apart from a few points, the bank had made adequate provision for the existing risks and had built up suitable reserves. With respect to these points, the Commission’s advisers Mazars recommended measures to amend the restructuring plan as submitted to the Commission in the summer of 2003. At the Commission’s instigation, these were incorporated by the bank and the revised restructuring plan was communicated to the Commission on 29 January 2004. The details are as follows:
(224)
Following an analytical examination of a suitable sample of the bank’s loan portfolio, the Commission’s advisers Mazars recommended that the level of risk provisioning be gradually increased up to the end of the restructuring period in the base-case scenario by EUR [...]* and in the worst-case scenario by EUR [...]*. They also identified an omission in the worst-case scenario which needs to be offset by an additional risk provision of EUR [...]*, broken down into EUR [...]* for 2003, EUR [...]* for 2004, EUR [...]* for 2005 and EUR [...]* million for 2006. Otherwise, the level of risk provisioning was to be regarded as adequate. However, the failure of a single large loan might lead to the risk provisioning being exceeded. This is especially relevant for project financing in the fields of air transport, energy and telecommunications. The worst-case scenario makes an additional risk provision for this of EUR [...]*. In view of the fairly sizeable stock of large loans, the Commission, in line with Mazars’ findings, is aware that exceeding the risks provided for is theoretically possible in the event of the failure of a large loan amounting to at least EUR [...]*. If specific, previously absent signs of such a failure were to appear, the bank would have to increase its level of risk provisioning accordingly. The Commission, in the light of Mazars’ findings, concludes that the bank would be able to take such a measure unaided.
(225)
Following the improvement of the restructuring plan through the incorporation of the measures proposed by the Commission’s advisers Mazars, the Commission regards the level of provisioning for the known risks as adequate. It notes with satisfaction that the bank’s management has taken altogether appropriate measures to build up a suitable risk control system. The structure is well on the way to, but has not yet reached, completion. The Commission trusts that, in its own well-understood interests, the bank will continue this process with as much determination as in the past. It is aware that the bank’s future profitability depends to a considerable extent on further economic development above all in Berlin and the five new Länder. In the Commission’s opinion, these risks are, however, not tangible when viewed from the current perspective and affect every firm in the region differently. The Commission takes the view that the measures contained in the restructuring plan, which certainly point in the right direction, suffice. Absolute certainty is, of course, never attainable in the economic sphere.
(226)
During the restructuring period, the bank’s capital market transactions account for some [...]* % of the operating result. This shows that these transactions are essential to the bank’s profitability. Obviously, the risks inherent in such transactions must be kept properly under control in the interests of the bank’s viability. This is being done firstly by shifting the emphasis from own-account business to customer-related activities. The bank’s risk positions are being reduced in this connection by [...]* between 2002 and 2006, while average earnings of EUR [...]* are being aimed at. The second way in which it is being done is by a risk management system that the Commission’s advisers, on the basis of their investigations, regard as being entirely adequate. They advise, however, that the bank’s dependence on interest-rate changes should be lessened by reducing the positions in the bank book. Bearing in mind this recommendation, the Commission thus considers the risks arising out of capital market transactions to be manageable and regards the buoyancy of this business area as guaranteed.
(227)
The Commission’s advisers Mazars have discussed thoroughly the question of the risks arising out of the valuation of BGB’s holding in BerlinHyp. The book value of the holding in BerlinHyp is EUR [...]*. If BerlinHyp were to miss its targets, e.g. owing to a further worsening of the situation in the real estate market, the business plan would have to be revised. In view of the increased risks that may ensue, the discount factor would then also have to be adjusted and additional risk premiums might be incurred. Such a scenario might even lead to a market price for BerlinHyp of [...]*, […]* .
(228)
The difference between the holding’s book value of EUR [...]* and the net own capital of approximately EUR [...]* represents the devaluation risk in a base-case scenario. This therefore amounts to EUR [...]*. An adjusted, more conservative business plan would include this devaluation risk, as would the annual accounts for 2003 and 2004. At the Commission’s request, the restructuring plan was revised and the devaluation risk duly taken into account. As recommended by the Commission’s advisers, the maximum devaluation risk in the worst-case scenario was also increased by EUR [...]*. However, this has not had any decisive impact on the Commission’s overall assessment.
(229)
For reasons of risk limitation and because of the uncertain further development of the real estate financing business, the Commission would consider it desirable in order to safeguard the bank’s long-term viability for at least the major part of this business to be sold by the group or reduced in size. To this end, the Commission recommends to Germany that BerlinHyp be sold separately in order to improve the privatisation prospects of the remainder of the group. BerlinHyp accounts for about two thirds of the group’s entire real estate financing business and is technically relatively easy to dispose of by selling the shares in BerlinHyp. The remaining third is concentrated in the hands of BGB and LBB and should be restructured in accordance with the strategy worked out by the bank for the real estate financing business. The future risks to the remainder of the group would thereby be reduced by well over half overall.
(230)
However, Germany provided the Commission with information according to which an immediate sale of BerlinHyp might have unacceptable consequences for the bank. The Commission would therefore ask Germany to determine at a later date whether and when a separate sale of BerlinHyp might proceed with a realistic expectation of success and on terms acceptable to the bank, i.e. at a price approximating to BerlinHyp’s net own capital. In that event, potential losses from write-downs in the book value might be kept within bounds and, at the same time, liquid resources would be channelled to the bank and capital freed up. Germany has accordingly communicated to the Commission its intention to divest BerlinHyp either separately or as part of the overall privatisation of BGB by the end of 2007.
(231)
BGB has a claim to 24,99 % of profits including the corresponding liquidation proceeds with respect to LBB against the Land of Berlin and a 75,01 % interest in LBB in the form of a dormant holding.
(232)
The Commission’s advisers Mazars consider the valuation of this claim in BGB’s books to be in need of auditing because LBB’s underlying value may have fallen since the relevant year of 1998. A possible write-down would have a one-off effect on the group's consolidated pre-tax profit in 2005 of about EUR [...]* in a pessimistic scenario and of about EUR [...]* in an optimistic scenario.
(233)
As recommended by its advisers, the Commission therefore considers it necessary to take this write-down effect properly into account in the restructuring plan through a write-down of EUR [...]* in the base-case scenario and through an additional writedown of EUR [...]* over and above the EUR [...]* writedown so far envisaged in the worst-case scenario. These provisionally estimated adjustments are dependent on a precise valuation of LBB and should finally be carried out as soon as that valuation has been effected following clarification of the outstanding issues relating to LBB (exact size of the remaining IBB reserve once IBB has been hived off, Commission decision on the consideration for the IBB housing-promotion assets). The Commission considers, however, that the resulting impact on the bank’s consolidated core capital is not likely to put the group’s viability at risk since, with a core-capital ratio of [...]* % or even more, this can be absorbed by the bank.
(234)
The conversion of BGB’s consolidated accounting to adapt it to IFRS (International Financial Reporting Standards) in 2005 calls inter alia for reassessment of the pension provisions. In the opinion of the Commission’s advisers Mazars, these could have a negative impact on the consolidated own capital to the tune of some EUR [...]*. It will have to be borne in mind, however, that as a result of the introduction of IFRS opposite effects may also result from the adjustment of other balance-sheet items. In the opinion of the Commission and its advisers, these cannot at present be reliably assessed. Even if these balance-sheet effects were to prove negative on aggregate, they are unlikely to be able to impair the bank’s overall viability. The introduction of IFRS leads only to a partial reassessment of already known facts, and not to the discovery of new risks. Moreover, it concerns all European companies, which must carry out adjustments on the basis of IFRS and resolve any transitional problems that arise in cooperation with the competent supervisory authorities. The bank's viability depends rather on its financial performance and its ability to manage the risks facing it, which are to be assessed separately.
(235)
The bank’s capacity to generate new business in its various areas of activity is the decisive factor as regards its viability and privatisation prospects. It has carried out studies into its market position and future market prospects from which it has derived its future business strategy.
(236)
This shows that in most business fields the plans and strategies are realistic. The bank intends to introduce new products and marketing channels. However, the Commission considers the qualitative and quantitative objectives and the strategy in the real estate financing field to be overoptimistic. [...]*. This will depend crucially on how the overall economic situation develops and on the bank’s ability to react to changes in the market situation and in customer needs and cannot therefore be conclusively assessed by the Commission at present. Should the bank not succeed in meeting its targets on a lasting basis, its viability may be endangered, especially if the real estate financing business remains at its current size. If the targets cannot be met in the event of a substantial scaling-down of the real estate financing business, the quantitative effects would also be considerably reduced and could be better absorbed by the bank’s other business areas.
(237)
After the report by its advisers Mazars on the restructuring plan submitted had made the Commission sufficiently certain in the autumn of 2003 about the bank’s viability and, in particular, the fundamental suitability of risk provisioning, a positive decision on the aid requested could be considered only if the compensatory measures offered could be regarded as sufficient. As stated below (see paragraph 257 et seq.), the Commission still had considerable misgivings in this respect, particularly as regards retail business, where the bank plays a prominent role on the Berlin regional market, but also as regards real estate financing, which also benefited from substantial aid. In the latter area, the Commission experts have also expressed misgivings regarding the bank's ability to generate sufficiently profitable new business in the future. In the Commission’s view, therefore, the separate sale of at least a significant part of the real estate financing business as compensation for competitors would also generally improve the viability and privatisation prospects of the rest of the group.
(238)
In the autumn of 2003, on the basis of the restructuring plan submitted and the conclusions reached by its advisers, the Commission therefore requested Germany to quantify the effects of a separate medium-term sale of Berliner Bank (accounting for some one quarter to one third of BGB’s retail business) by the end of 2005 and of BerlinHyp (some two thirds of BGB's real estate business) by the end of 2006. This was to enable the Commission to ascertain whether such further compensatory measures would not jeopardise once again the banks' viability, which had basically been confirmed under the current restructuring plan.
(239)
Germany and the bank began by summarising the underlying situation. On the basis of the medium-term plan of 24 June 2003, the expected additional charges resulting from the incorporation of the Commission advisers’ proposals, from the already approved divestment of real estate services business and the hiving-off of IBB were quantified. Overall, in the base-case scenario these three measures would have one-off effects in the period 2003 to 2006 of minus EUR [...]* - EUR [...]*, of which minus EUR [...]* for the increase in risk provisioning and minus EUR [...]* - EUR [...]* for the negative sales proceeds, the write-down of the book value of investments and other consequences of the transactions involved in divesting the real estate services subsidiaries RGB and IBAG. However, the medium-term and long-term effects of those three measures were small. Thus, the planned tax savings in 2006 were reduced to only a minimal extent, by EUR [...]*, from EUR [...]* (according to the medium-term plan of 24 June 2003) to EUR [...]* (on the new calculation) and could, therefore, be achieved by the bank generally without any significant change in the planned magnitudes. The medium-term plan of 24 June 2003 was based on a target rating of [...]* for the group and a return on capital of [...]* % in 2006.
(240)
Against this, Germany and the bank argued that a divestment of Berliner Bank by the end of 2005 would adversely affect the group’s medium-term planning. Overall, there would be one-off effects in the period 2003 to 2005 of EUR [...]*, [...]* of which being accounted for by the extraordinary costs of the sale and the rest by provisions for staff, IT, buildings and additional restructuring costs. In the medium and long term, the planned pre-tax result in 2006 of EUR [...]* (according to the reworked medium-term plan incorporating the three measures mentioned above) would fall by EUR [...]* to EUR [...]*, of which around half being accounted for by the discontinuation of Berliner Bank's earnings contribution to the group and the rest by the delayed staff cutbacks, the abandonment of the planned increase in commission earnings and remaining (fixed) costs (primarily on account of back-office diseconomies of scale). However, this calculation assumed that, in order to maximise the number of bidders, Berliner Bank would be sold as an independent bank, with further charges being incurred. The expected proceeds from the sale of Berliner Bank of EUR [...]* to EUR [...]* were already included in the one-off effect of the extraordinary costs of the sale. According to the bank, this was, in any case, more than offset by the necessary core capital for Berliner Bank equivalent to [...]* % of risk items amounting to EUR [...]*, giving a negative effect of EUR [...]* to EUR [...]*. In addition, the divestment of Berliner Bank would reduce the profit share of retail business in BGB’s total business from just over [...]* % to around [...]* % and the share accounted for by capital market business would accordingly rise from just over [...]* % to some [...]* %. As a result, given the core-capital ratio, there could be a deterioration in the rating since capital market business was regarded as being riskier than retail business. This would have a negative effect on the refinancing, with the result that the sale of Berliner Bank would also give rise to operating problems during the restructuring period. The sale of Berliner Bank would reduce the return on capital by around [...]* % percentage points from [...]* % in 2006 according to the medium-term plan of 24 June 2003 to around [...]* %.
(241)
The Commission has carefully analysed the arguments adduced by Germany and the bank. In its view, these do not represent any insuperable obstacles to the hiving-off of Berliner Bank on competition grounds.
(242)
For one thing, with the relative reduction in the contribution of retail business to the bank’s overall business to which the hiving-off of Berliner Bank threatens to give rise, the bank is free to maintain a balanced structure by carrying out corresponding reductions in the other areas of capital market transactions and real estate financing. The bank’s structure and the core-capital requirements would thus remained unchanged. In fact, such reductions in the risk items would release additional capital, thereby helping to boost the core-capital ratio further. As an alternative to such reductions, the bank could, with a view to covering the higher risk, raise the core-capital ratio either by making further efforts of its own to reduce selected risk items more than planned, thereby releasing core capital, or by borrowing fresh medium-term capital on the capital market. This would prevent any significant deterioration in the rating and thus in the refinancing terms, with the result that the bank could cope with the hiving-off operation in operational terms too.
(243)
In calculating the one-off effects of the divestment of Berliner Bank, Germany and the bank assume that Berliner Bank would be sold as an independent bank in order to maximise the number of bidders. Given that Berliner Bank is at present incorporated into Landesbank Berlin as a dependent business area and branch, Landesbank Berlin would have to be hived-off for sale as an independent legal entity. According to the bank, a core-capital ratio of [...]* % of the risk items and hence core capital of around EUR [...]*, which would have to be provided afresh by BGB are necessary. However, in spite of a core capital of EUR [...]*, BGB expects that a sale would bring in only EUR [...]*-EUR [...]*. In the Commission's view, this calculation is very conservative. The amount of net equity usually serves as one out of several benchmarks for estimating the value of a company. If Berliner Bank’s core capital is to be some EUR [...]*, it is, in the Commission’s view, rather unlikely for the sale proceeds to be only EUR [...]* to EUR [...]*. Given the well-established brand name and client basis of Berliner Bank, the sales proceeds should tend to reach or even exceed the value of the core capital, which the bank regards as an expense, and should therefore reduce BGB's charges to a much greater extent. But even if, exceptionally and for reasons not clear to the Commission, the situation here were different, it would not make sense for BGB to sell Berliner Bank as an independent bank. The brand, the customers and other assets of the working company all have a positive value. If BGB considers that not even the core capital, which needs to be provided afresh by BGB, can be realised in the sale, Berliner Bank's assets can, of course, be sold as part of a so-called asset deal that should at least generate some proceeds and thus reduce an extraordinary negative effect from the sale for BGB. As a result, the negative one-off effect of EUR [...]* would be significantly reduced.
(244)
In the Commission's view, the claimed negative recurring effect on the return on capital of [...]* % can clearly be improved on by the bank if the sale is spread over more than one year.
(245)
Having considered the Commission's analysis, Germany finally agreed that BGB would be viable if Berliner Bank were sold separately. It has stated its willingness to sell Berliner Bank separately by 1 February 2007 (real effective date), with a tendering procedure being launched in 2005 and completed by1 October 2006. The formal commitment was submitted to the Commission on 6 February 2004.
(246)
As a result, the entire year’s result for 2006 is still attributable to BGB, and the adjustment costs can be spread over a longer period or it will be easier to take countermeasures such as a further reduction in the short-term fixed costs for IT, back-office staff and buildings. According to BGB’s own figures, the negative effects stemming from abandonment of the planned increase in LBB's commission earnings attributable to reorganisation, workforce uncertainty and the use for restructuring purposes of management resources of EUR [...]*, from the delay in workforce cutbacks within the group of EUR [...]* and from the remaining costs caused by diseconomies of scale of EUR [...]* would not continue indefinitely. The Commission shares this view.
(247)
The Commission’s position is confirmed by its review of the one-off effects and the long-run effects on BGB's return on capital. The outturn figures will probably be much lower than those given by Germany and the bank. If this were not to be the case because of a series of unfortunate circumstances or because of unfavourable market developments, even a return on capital of [...]* % in 2007 (return on capital of [...]* % according to the medium-term plan of 24 June 2003 less [...]* % as a result of the divestment of Berliner Bank) would, on the Commission's estimation, not result in a situation where the remaining parts of the group would again be dependent on government assistance, which, under the ‘one time-last time’ principle of state aid legislation, could no longer be granted. The bank has it within itself to become more stable by raising the core-capital ratio to 7 % or more. This would have a positive effect on the rating and, from an operational viewpoint, would ensure satisfactory refinancing conditions. In the Commission’s view, the return on capital of [...]* % to [...]* % expected in 2006 under adverse conditions would, given the current difficult situation in the German banking sector, be at the lower end, if anything, of the range that is regarded as satisfactory on the market for a bank’s long-term viability. However, the Commission expects that the privatisation promised for 2007 will lead to a further strengthening of the bank. If the new investor were to regard the return on capital or the capital endowment of the bank at the time as unsatisfactory, it is to be expected that it would, in its own interests, carry out further rationalisation measures, e.g. reductions in unprofitable areas of business or capital injections, which would bring about the necessary improvement in the rating and in the refinancing situation.
(248)
Against this, the Commission agrees with Germany and the bank that, as things stand, it cannot be ruled out with sufficient certainty that a strict requirement to sell BerlinHyp separately in the medium term might unduly prejudice the bank's viability. However, it still has - and this has been confirmed by its independent advisers - some doubts that the bank will manage to generate to the extent envisaged new, higher-margin business in real estate financing. For this reason, the Commission would generally regard it as a positive contribution to strengthening the bank's long-term profitability if it were to withdraw from real estate financing to a greater extent than hitherto planned. This could be achieved above all by selling BerlinHyp separately, and this was, therefore, thoroughly examined by the Commission.
(249)
According to Germany and the bank, the binding requirement to sell BerlinHyp separately in the medium term would have the following adverse effects on the rest of the group and would impose the following requirements, which could not necessarily be met by the buyer. As far as possible, the buyer would have to take over the group’s internal refinancing (currently EUR [...]*) on similar terms, i.e. it must possess a rating at least as good as that of Landesbank Berlin, and to assume responsibility for BGB's guarantee for BerlinHyp in order to avoid applying the methodology for large credits (currently estimated at around EUR [...]*). In addition, the buyer would have to offer at least BerlinHyp's book value as the purchase price since otherwise the book value might be significantly written down, [...]*. Even if the tendering procedure had a negative outcome, there would still be the risk of the book value being written down further. Moreover, a sale that did not seriously impair the restructuring plan would be possible only if the cooperation on marketing between BerlinHyp and the group could be continued. The requirement of a separate sale would entail a one-off write-down of the present book value of EUR [...]* by EUR [...]* to the book value of BerlinHyp's capital of EUR 519 million. The expected pre-tax result for the rest of the group in 2006 would be reduced by a further EUR [...]* or so (difference between the disappearance of the planned BerlinHyp result of some EUR [...]* and the interest earnings on the expected sales proceeds of some EUR [...]*). Together with the separate sale of Berliner Bank, this would result in a further fall of some [...]* % in the target return on capital of the rest of the group in 2006 to a little over [...]* % generally and a core-capital ratio of only just over [...]* %.
(250)
Since a binding requirement to sell BerlinHyp separately would thus give rise to further significant risks for the viability of the rest of the group, the Commission, as things stand, does not regard this either as an appropriate measure for strengthening long-term profitability or as a feasible compensatory measure on which the decision would rest. It thus welcomes Germany's intention that the feasibility of a separate sale of BerlinHyp at a later date should be re-examined in the light of the privatisation of the rest of the group and that, depending on which scenario is more likely to improve privatisation prospects, BerlinHyp will be sold either together with the rest of the group or separately by the end of 2007 as part of a transparent, open and non-discriminatory procedure. In the Commission's view, BerlinHyp could realistically be of interest once again, at least from 2006 onwards, to a strategic investor. BerlinHyp's business plan also assumes an improvement by then in the general market situation for real estate financing business. The Commission considers that a review of the prospects for a separate sale should, therefore, be conducted in 2006. It also expects that, in line with the recommendations of its advisers and with the restructuring plan reworked on this basis, the bank will [...]* as soon as unexpectedly poor business results show this to be necessary. This measure would, of course, minimise the potential risk stemming from the need to make a further write-down [...]*. In the Commission's view, such measures would be conducive to the long-term viability and privatisation prospects of the rest of the group.
(251)
On 29 January 2004 Germany submitted the current restructuring plan including the medium-term financial plan, which is based on figures as at mid-January 2004. The latter updates the previous version of June 2003, on which the viability assessment by the Commission and its consultants’ was based, and takes into account, for instance, the recommendations of the Commission’s consultants regarding the risk provisions. As to the divestment of Berliner Bank, which has not yet been incorporated in the current medium-term financial plan, Germany submitted estimates based on the analysis presented in December 2003. The figures of the current plan do not differ significantly from the version of June 2003 and therefore do not alter the Commission’s assessment of BGB’s viability prospects.
(252)
After incorporating the recommendations of its advisers Mazars, the Commission regards the restructuring plan as being generally plausible and complete in spite of the continuing uncertainties noted in connection with future developments. In its view, the operational, functional and financial measures that have already been taken or are envisaged are suited to restoring the bank's long-term viability and the failure to date to meet targets is not such overall as to give rise to any lasting misgivings regarding the feasibility of the restructuring plan. A number of measures are running below the targets set in the plan. But some of the leeway will be made good by overachieving targets in other areas.
(253)
The prospects for viability are dependent to a large extent on future profits, on steps to strengthen the core-capital base and, in particular, on the ability to generate new business and on the restructuring plan being implemented in full. The bank will be extremely dependent on capital market earnings, especially during the restructuring period. The real estate financing strategy is ambitious and threatens to fall short of the targets set. A further deterioration on the real estate market in the Berlin area and a further decline in gross domestic product would threaten the bank's viability. To reduce this risk, the Commission considers that a larger share of the real estate financing business should be hived off through a separate sale of BerlinHyp and expects Germany to carry out a detailed analysis. The bank could then more easily offset any losses stemming from the smaller real estate financing business that would remain within BGB/LBB thanks to expected positive contributions from retail business and capital market business.
(254)
The bank does not at the moment have any latent reserves or other financial resources that would absorb larger losses during the restructuring period. As a result, the Commission considers that a core-capital ratio of 6 % is the minimum necessary to ensure viability and hence the maximum that can be financed out of state aid. It expects the bank to make every effort to raise the core-capital ratio to around 7 % or higher by reducing risk assets further or by borrowing more on the market. The bank's capital market capability and privatisation prospects would thus be further improved.
(255)
In the Commission’s view, the maximum reduction in the anticipated return on capital in 2006 from around [...]* to [...]* % to some [...]* to [...]* % that the additional compensatory measure of a divestment of Berliner Bank is expected to bring about does not threaten the bank's long-term viability. The Commission assumes that, following the bank's privatisation, an investor will take all necessary measures to achieve for the bank a level of profitability that is acceptable to a market-economy investor.
(256)
The Commission considers that, after the restructuring period, the privatisation of the bank will have sufficient prospects of success. Germany has undertaken to introduce a privatisation procedure immediately after closure of the annual accounts for 2005 and to complete that procedure by the end of 2007. The Commission regards this as a realistic timetable. In this connection, it stipulates that Germany and the bank must, until then, make every effort to remove any remaining obstacles to the privatisation. These include the still complex structure of the group, which is to be further slimmed down as part of the restructuring process, and the concentration of the still insufficiently focused product range and an improvement in the group's internal transparency. In addition, the purchase price will tend to be adversely affected by the fact that the bank has leased a large proportion of its business premises at prices exceeding the market level. According to calculations by the Commission's advisers, the cash value of this disadvantage will be somewhere in the region of EUR [...]* to EUR [...]* in 2006 and an investor can be expected to take this into account in its tender. The planned privatisation will take place between one and two years after the expiry of the State's institutional and guarantor liability. In the Commission's view, this will allow a potential investor sufficient time to take a look at the bank's market operations on a stand-alone basis following expiry of the institutional and guarantor liability in 2005 and to conduct a proper analysis with a view to preparing its bid.
(257)
The exemption in Article 87(3)(c) of the EC Treaty is subject to the condition that the aid must not adversely affect trading conditions to an extent contrary to the common interest. According to points 35 to 39 of the guidelines, measures must be taken to mitigate as far as possible any adverse effects of the aid on competitors. This condition usually takes the form of a limitation on the presence which the company can enjoy on its market or markets after the end of the restructuring period. Point 37 states that the compulsory limitation or reduction of the company’s presence on the relevant market(s) should be in proportion to the distortive effects of the aid and, in particular, to the relative importance of the firm on its market or markets. Under point 38, a relaxation of the need for compensatory measures may be contemplated only if such a reduction or limitation is likely to cause a manifest deterioration in the structure of the market, for example by having the indirect effect of creating a monopoly or a tight oligopolistic situation. It has already been explained with regard to a hypothetical case of insolvency that, in view of the market structures and BGB’s position on those markets, a reduction or limitation of BGB’s presence will not lead to the creation of a monopoly or tight oligopoly (see below).
(258)
Compensatory measures can take different forms, such as a hive-off of assets or subsidiaries or the closure of capacity. Point 39(i) of the guidelines states that, where there is structural excess of production in a market affected by the aid, the compensatory measures must make a contribution to the improvement of market conditions by irreversibly reducing production capacity and that a capacity reduction is irreversible when the relevant assets are rendered permanently incapable of achieving the previous rate of output or are permanently converted to another use.
(259)
The markets in financial services are not markets where there is structural excess of capacity within the meaning of point 39(i) of the guidelines, which refers to ‘production capacity’ and ‘plant’ and thus implicitly to manufacturing rather than to service industries, where capacity can generally be adjusted much more easily. The excess capacity sometimes spoken of in banking, e.g. with regard to the density of branch networks, is not usually structural in the sense of being the outcome of a lasting drop in demand; rather the reference is to labour-intensive and hence cost-intensive areas where capacity is to be reduced primarily on grounds of profitability.
(260)
But, even if the view were to be taken that financial services did indeed suffer from excess capacity, that capacity could not be ‘rendered permanently incapable of achieving the previous rate of output’ or be ‘permanently converted to another use’. The capacities used to provide banking services - primarily staff, branches, advice centres, back offices and computer and telecommunications systems - are highly adaptable and can be reemployed, hired out or otherwise brought to the market at no appreciable cost. An irreversible reduction of capacity is thus impossible and cannot be a test to be applied to the case at issue.
(261)
In what follows, therefore, the Commission considers whether the sales, closures and reductions of subsidiaries, assets and lines of business within the meaning of point 39(ii) offered as compensatory measures are sufficient to mitigate the distortive effects of the aid.
(262)
The measures Germany initially offered as part of the restructuring plan can be summarised briefly as follows:
-
divestiture of subsidiaries and holdings: The main sales were to be in retail banking: Allbank, represented throughout Germany (now sold), Weberbank in Berlin (not yet sold), BG Zivnostenska Banka a.s. in the Czech Republic (sold) and BG Polska SA (retail business and ‘Inteligo’ Internet business sold, remainder in liquidation),
-
closures: Closure of some 90 branches serving private and corporate customers in Berlin and Brandenburg (the bulk of them in Berlin); 6 customer centres throughout Germany; 6 real estate financing offices in Germany and 3 abroad; 3 capital markets offices located abroad; and 14 large customer and international business offices located abroad,
-
withdrawal from lines of business: long-term withdrawal from large customer and international business (e.g. loan transactions with foreign banks, advisory services for large customers, privatisation and aircraft financing),
-
reduction measures: in capital markets, reduction of risk assets by [...]* % and of debt finance by [...]* %; in real estate, reduction of the volume of investment funds by over [...]* % (about EUR [...]*) and of project development by [...]* % (about EUR [...]*), and office closure and staff reductions of 50 %; reduction of the small public-sector business and integration of the remainder into the corporate business.
(263)
Germany stated that these measures together would lead to a reduction in staffing of 50 % (from about 15 000 to 7 500) and a reduction in the balance-sheet total from roughly EUR 190 billion to EUR 140 billion.
(264)
In the decision initiating the procedure, the Commission commented that, for want of sufficiently detailed information, it could not make a proper assessment of the impact of these measures, which in some cases were described only vaguely, as regards both BGB’s individual areas of business and its position on the markets; it thus asked for further information. Germany then supplied detailed information on the effects on the individual business areas or markets (see paragraph 291 et seq.) and the overall impact: total assets reduced by EUR 51,5 billion, or 25 %; total liabilities reduced by EUR 57,8 billion, or 27 %; and consolidated balance sheet reduced by EUR 50,2 billion, or just under 27 % (26).
(265)
But, in the decision initiating the procedure, the Commission had already expressed doubts as to the adequacy of the planned compensatory measures. It seemed questionable whether the proposed reduction in the balance-sheet total could be regarded as sufficient in view of the large sum to be provided in aid and the Commission’s practice with regard to restructuring assistance for banks (27). It drew attention to the minimum capital ratios required by law, which might provide a rough guide for the assessment of compensatory measures in the banking sector. The argument is as follows. In order to continue in business, an undercapitalised bank must either reduce its risk assets, and hence its volume of business, in proportion to the shortfall in capital (e.g. applying the legal minimum core-capital ratio of 4 %, the risk assets must be reduced by a factor of up to 25); or seek a capital injection equal to the shortfall. Such a capital injection will enable it to avoid the reduction that would otherwise be necessary. This concept of an ‘opportunity reduction’ can serve to render visible the market distortion caused by a capital injection and thus provide a rough guide for the assessment of compensatory measures. But the Commission had pointed out that this would not be a mechanical rule and that, in any particular case, account would have to be taken of the economic circumstances, with special reference to the viability of the firm and the competitive situation on its markets.
(266)
As regards the overall impact, Germany argued that the correct point of reference was not just the core capital but rather the own funds, made up of core capital and additional capital; here the legal minimum was 8 %, so that the expansion of business permitted by the aid, or the contraction of business it prevented, had to be valued using a factor not of 25 but of 12,5 at most. In reality, a bank could increase its risk-weighted assets by 25 only if a capital increase comprised additional capital as well as core capital. Even if the bank already had additional capital that could not previously be taken into account, (28) the assessment should not be based on an expansion of business that had been made possible only by the additional capital that had been available in any event. Germany further contended that the capital ratios actually required on the market were well above the legal minimum, at 6 % at least for core capital and about 10 % for own funds. BAFin had confirmed this approach and had explained it in detail in comparisons with the averages for German banks (a core-capital ratio of some 6 to 7 % and an own-funds ratio of 9 to 11 % or, in the case of private banks, 10 to 11 %) and with the averages for large European banks, which were higher (a core-capital ratio of 8,5 %). Germany concluded that the economic impact on the market of a capital injection of about EUR 1,8 billion should be valued at about EUR 18 billion. The Commission accepts these arguments.
(267)
Turning to the risk shield, at the time of the decision initiating the procedure, the economic value of this aid was not clear. Since then Germany has argued that the economic value of the risk shield should be estimated at a little over EUR 6 billion (see paragraph 138). It has also stated that real estate services are not subject to the solvency rules, so that the contraction in business that is avoided cannot be derived from the capital ratios. It further contends that the risk shield relates essentially to old business in real estate services. According to Germany, it could be argued that, during the restructuring of IBAG, new business was made possible only because cover had been provided for the company. But, in that event, the market distortion could be measured only by reference to the new business (estimated at about EUR [...]* altogether in the restructuring phase; see paragraph 90) or, at most, to the overall value of the risk shield (EUR 6,1 billion).
(268)
The Commission cannot accept this estimate. Without the risk shield or, alternatively, a capital injection of about EUR 6 billion, BGB would not have been able to continue in business as a result of the interlocking risks within the group. The effect of the risk shield is thus comparable to that of a capital injection of some EUR 6 billion. The same applies to the capital contribution provided for in the repayment agreement, which, in the event of a recovery decision by the Commission, can be estimated at a maximum value of EUR 1,8 billion (29).
(269)
If the total economic value of the aid is EUR 9,7 billion and applying a factor of 10 to the own-funds ratio is actually required, the reduction in the balance sheet that serves as the point of reference for an estimate of the market distortion and as a rough guide for the compensatory measures would come to almost EUR 100 billion out of EUR 190 billion.
(270)
This demonstrates the limits to the applicability of the opportunity argument. An immediate reduction on this scale would be possible only in the event of insolvency. Without the aid, therefore, the only possible course would have been for BGB to cease trading; conversely, the only acceptable compensatory measure would be the insolvency of BGB. But, within the time needed for an ordinary restructuring operation, compensatory measures on the scale described above can be implemented in the short and medium term only with difficulty or at the cost of heavy losses on the sale of parts of the organisation or the cancellation or termination of long-term contracts and positions if the viability of the firm is not to be jeopardised for a long time to come or indeed rendered in all probability impossible. Firstly, such a consequence would hardly be compatible with the objective of restructuring aid and the yardstick by which it is measured, namely the return of the recipient firm to long-term viability. Secondly, it would be out of proportion to the impact of the various aid measures on individual lines of business and markets. Consequently, the opportunity argument cannot be applied mechanically to identify the required level of the reduction in the balance-sheet total.
(271)
The Commission has accordingly sought to ensure an overall contraction in the volume of business in line with its practice in the past but, above all, also an effective reduction in the bank’s presence on the markets, having regard to the effects of the measures proposed on the individual lines of business.
(272)
BGB operates primarily in private and corporate retail banking, real estate financing, real estate services (investment fund and project business) and capital markets (money and securities dealings).
(273)
The other lines of business are less significant in terms of volume, are to be cut back or closed down and are of no further relevance here. This applies to the public-sector lending segment, which is to be substantially reduced and will in future form part of the corporate business, and to the large customer and international segment (e.g. project and export financing), which is to be wound up. Investment banking activities consisted only of a relatively small volume of share and security issues and will not play an independent role in future. IBB’s development banking role is to be hived off from LBB when institutional liability and guarantor liability for LBB come to an end in 2005.
(274)
On the basis of the information provided by Germany, the decision initiating the procedure treated real estate as one line of business but, in order to assess the compensatory measures further, this had to be divided into real estate financing and real estate services because of their different supply and demand structures. According to BGB’s in-house definition, real estate financing is large-volume financing (involving sums of EUR 5 million and upward) and thus primarily commercial real estate financing (for housing construction or shopping centres, for example). It is carried on mainly by BGB’s subsidiary BerlinHyp, which accounts for about two thirds of the entire volume, but also by LBB and BGB itself. Private real estate financing falls predominantly within the group's private customer business.
(275)
BGB’s real estate services consist essentially of investment fund business and building and development work. It was formerly conducted by IBG and is now handled by IBAG, which is a wholly owned division of BGB.
(276)
Real estate services are the area which was the main cause of the crisis and of the restructuring measures under consideration here, and they have benefited most from the risk shield, the measure that represents the largest volume of aid. From the outset, therefore, there were doubts about the continuation of this line of business.
(277)
In the summer of 2002 Germany offered to hive the real estate services business off from BGB and to transfer it to the Land of Berlin. This general intention was spelt out in detail in the undertaking submitted by Germany in January 2004. Germany here undertakes to ensure that by 31 December 2005 the BGB group sells or liquidates all holdings in real estate service companies covered by the risk shield.
(278)
In detail, the undertaking provides that by 31 December 2004 the Land and the bank are to take a final decision settling which holdings can suitably be sold to outsiders in a transparent, open and non-discriminatory bidding procedure. According to Germany, the number of such holdings can reasonably be expected to be small. Essentially, there is only one fairly large company involved which has about 160 employees and is covered by the book value guarantee afforded by the risk shield, so that under the detailed agreement any profit on the sale is to be transferred to the Land. If sold to outsiders, the company will no longer be covered by the guarantees in the risk shield. All holdings not sold or liquidated by 31 December 2005 will be acquired by the Land of Berlin on market terms, with the price being determined by an accountant commissioned by the Land or by arbitration if that proves necessary after the first valuation has been reviewed by an accountant commissioned by the bank. Under the detailed agreement, the Land already has special rights of assent, information and control in the real estate services area, which are exercised by BCIA.
(279)
At an early stage in the procedure, Germany also announced its intention of divesting LBB of the development business of IBB and at least part of the IBB special reserve, which is currently available to LBB as core capital. This intention was likewise spelt out in an undertaking submitted by Germany in January 2004. Germany here undertakes to ensure that by 1 January 2005 IBB’s development business is transferred to a newly set up, independent development bank belonging to the Land of Berlin and that, at the same time, the IBB special reserve is hived off from LBB towards the capital of the new development bank to the extent possible without falling below a core-capital ratio of 6 % on 1 January 2004. The section of the IBB special reserve still needed for the capitalisation of BGB will be invested by the Land in one or more dormant holdings in LBB and will bear interest at market rates. At the time these dormant partnerships are formed, in view of LBB's long-term rating (leaving aside the public institutional and guarantor liability) and having regard to the contractual structure of the dormant holdings, a premium will be determined at a reference interest rate in line with those of comparable core-capital instruments traded on the market. The comparability of such core-capital instruments is to be determined on the basis of the contractual rules governing them and the risk profile of the issuer.
(280)
In the autumn of 2003 the following updated overall picture could be given of the measures envisaged by Germany to reduce the volume of business (measured on the basis of asset positions) in the individual business areas in the period from 2001 (end-of-year figures) to 2006 (planned balance sheets or profit-and-loss accounts):
Reduction measures (30)
(in billion euro)
Business area
Segment assets
Balance sheet
Plan
Change
2001
2006
Retail banking
-
Private customers
-
SME customers
20,0
12,2
7,8
[...]*
[...]*
[...]*
[...]*
[...]*
[...]*
Public sector
11,0
[...]*
[...]*
Capital markets
109,7
[...]*
[...]*
Large customer/international
10,8
[...]*
[...]*
Real estate financing
31,2
[...]*
[...]*
Real estate services
3,2
[...]*
[...]*
Subtotal
185,9
[...]*
[...]*
Interest management and consolidation
-16,8
[...]*
[...]*
Total assets (not including IBB)
169,1
[...]*
[...]*
IBB
20,1
[...]*
[...]*
Balance-sheet total (consolidated)
189,2
[...]*
[...]*
(281)
The measures planned by Germany at this stage would result in an overall reduction in the balance-sheet total of 30 %. They include divestments (e.g. some EUR 6 billion in retail banking through the sale of Allbank, BG Polska, Zivnostenska Banka and Weberbank), closures (e.g. of some 90 branches and 6 private banking centres) and asset reduction. In the large customer/international and real estate services business lines, which are to be wound up or hived off, residues will remain after 2006 which will have to be dismantled in stages. The public-sector business will be cut back significantly. After restructuring, therefore, the main pillars of the bank will be retail business in the Berlin area, real estate financing and capital market business.
(282)
Even though the hive-off of IBB’s development/support business cannot be viewed as a compensatory measure in that development business forms part of the public service provided by the Land of Berlin and is not a commercial activity (31), it is to be noted that a total reduction of roughly a quarter (not taking account of IBB) or just over EUR 40 billion is basically in line with the Commission’s practice in similar cases in the financial services sector. However, reducing assets and balance-sheet items serves primarily to give an overall impression but cannot in general be equated to an effective reduction in business activity, let alone market presence. This applies in particular to the three remaining principal business lines. In retail banking, although shareholdings have been or will be sold (Polska, Zivnostenska, Allbank, Weberbank) and branches shut, the restructuring plan valid up to the autumn of 2003 aimed to keep market presence in Berlin more or less intact or even to consolidate it slightly in individual segments. The measures in this business area should therefore be viewed as primarily serving to concentrate on the regional core business and to cut costs by closing branches. In real estate financing too, the planned reduction is relatively modest in relation to total volume. In the capital market business sector, although there will be major cutbacks in business lines, a significant volume of business will remain.
(283)
Germany and BGB stated that making further cutbacks or even abandoning an entire business line would be difficult and would jeopardise the bank’s viability. The real estate financing business of BerlinHyp, LBB and BGB, given current market conditions and the as yet incomplete restructuring of this business area, could not be sold in the short term or could be sold but only with major losses in book value. Furthermore, a positive profit contribution was expected from this area before the end of the entire restructuring process and would be needed to achieve the overall target result from 2004 at the latest.
(284)
The Commission examined these arguments, together with the related data provided, and came to the conclusion that divestment of the real estate financing business in the short term would jeopardise the bank’s viability (see paragraph 230). Moreover, an analysis of the competitive situation on the German market for real estate financing showed that BGB is not among the leading suppliers. According to the original notification, BGB, with a share of some 5 % in 2000, occupied third place. However, according to more up-to-date data submitted by Germany, which are adjusted for public-sector lending, actual market share in 2000 was only some 3 %, and this is likely to fall to 2 % by 2006. This coincides with other sources of information which show that in 2001 BGB did not reach the third place originally indicated or achieve a 5 % market share, either in the mortgage lending market as a whole or in the various segments. (32) Accordingly, it would not appear to be urgent to reduce BGB's market presence in this area in order to avoid unreasonable distortions of competition.
(285)
Nevertheless, it would be preferable if the BGB group were to pull out of this business area since the mere continuation of its activities on the markets for real estate financing distorts competition to some extent. However, this would be on condition that a withdrawal would not endanger the restoration of long-term viability. In this connection, the Commission welcomes the intention of Germany and the Land of Berlin to sell the real estate financing business line separately or as part of the overall privatisation of BGB.
(286)
The capital market business, whose segment assets have already been reduced by almost 20 %, was in 2002 the only business line to make a significant (i.e. hundreds of millions) positive profit contribution. At the end of the restructuring process in 2006, it is to be one of the main pillars, together with retail banking, of the group’s result and profit. Consequently, the capital market business is, first, essential to the restoration of BGB’s viability and cannot be reduced much more than it has been. Second, the competitive weight of BGB on the national money and securities markets, which are none the less becoming increasingly international and European, can be classed as not significant, i.e. as even less than its weight on the national real estate financing markets.
(287)
Nevertheless, the Commission examined whether further, even if limited, reductions might be made. In view of the overall aim of the restructuring aid, which is for BGB to become a regional bank again, the Commission looked mainly at whether further foreign subsidiaries might be given up. After the closures and divestments which had already been undertaken, however, subsidiaries remained at only three locations (London, Luxembourg and Dublin), whose continued existence Germany had described as being vital for the bank’s retail business and refinancing. In the end, a commitment was given to abandon BGB (Ireland) plc in Dublin. The Commission accordingly did not seek further measures in the capital market sector, for the reasons set out above.
(288)
Under point 37 of the guidelines, an assessment of compensatory measures must take account of ‘the relative importance of the firm on its market or markets’. The retail banking business (private and corporate customers) is therefore by far the most problematic from a competition point of view. Already in its decision initiating the procedure, the Commission expressed doubts about the appropriateness of the compensatory measures primarily on account of BGB’s strong regional and local position on this market.
(289)
Through selling subsidiaries or other parts of assets and through closing branches and other sites, BGB has already significantly reduced the segment assets attributable to this business line. The 43 % reduction originally planned in the segment assets by 2006 (see table in paragraph 280) has thus almost been achieved, and essentially all that remains is to sell Weberbank. However, the Commission commented back in its decision initiating the procedure that ‘BGB is extremely strong locally and regionally in the markets of retail and corporate banking, with shares ranging from 30 to 57 % in the individual segments at local level and from 23 to 46 % at regional level, and with huge gaps between itself and its nearest competitors, which achieve only half, a third or a fourth of BGB’s shares.’ The Commission already had doubts in this connection about whether the target reduction in the retail and corporate sectors by way of the planned divestments would suffice to mitigate the distortive effects of the aid in the greater Berlin region.
(290)
The divestments in retail banking which have already been planned or carried out, with the exception of Weberbank, which is small and directed at wealthy private customers, do little or nothing to reduce BGB’s presence in Berlin: Allbank is active countrywide and has only a few branches in Berlin, BG Polska and Zivnostenska Banka operate abroad. Although some 40 to 50 (private and corporate) branches were closed in Berlin in each category, closing branches in a large city with high branch density serves mainly to cut costs and, according to the comments by Germany, causes customers to change banks only to a limited extent. (33) Moreover, the additional information referred to and provided by Germany shows that the intention was not significantly to reduce market presence in Berlin, but to maintain BGB’s position in individual segments or even to strengthen it slightly.
(291)
In response to the Commission’s doubts, Germany argued that the volume-based market shares originally submitted for BGB in the individual segments of the Berlin market were overstated. This was because of BGB’s reports to the Land central bank, which were for the whole group and did not distinguish between product markets or regions. This meant, for example, that lending and deposit volumes for the real estate financing and capital market business areas outside Berlin were included in the figures for local retail and corporate business. BGB’s lending and deposit volumes and the corresponding market volume for Berlin had therefore been adjusted for the lending and deposits not attributable to the region or the product area. This gave private-customer market shares for BGB of some 43 to 45 % for deposits/payments business and some 22 % for lending in 2000 and 2001. In the corporate sector, BGB had market shares of some 25 to 26 % for deposits/payments and some 23 to 25 % for lending in 2000 and 2001. Compared with the originally notified figures, the market shares submitted by Germany for BGB in the individual segments, especially in the corporate customer segment, had thus fallen in some cases by almost half.
(292)
For BGB’s nearest three competitors on the Berlin retail market (Berliner Volksbank, Dresdner Bank and Deutsche Bank (group)), Germany gave market share estimates for 2001 of around 11 to 13 % for lending/private customers, 8 to 14 % for private customers/deposits, 5 to 16 % for corporate customer/lending and around 9 to 18 % for corporate customers/deposits. With estimates of over 50 % in the private customer sector (50 to 60 % for the deposit/payments segments and about 50 % for lending) and close on 60 % in corporate banking (over 40 % for deposits/payments and around 50 to 60 % for lending), Volksbank assumes far higher market shares for BGB. It estimates its own market shares at 6 to 10 % in the private customer segments and some 4 to 10 % in the corporate segments.
(293)
Germany's corrected market shares for private and corporate retail business refer only to Berlin as it considered this to be the relevant region and retail banking to be a regional business (34).
(294)
In its comments, the Berliner Volksbank also argued that Berlin was the relevant geographic market for assessing the aid in retail banking and that this was in line with the Commission’s usual assessment criteria for defining the market in merger control. Merger decisions in the banking sector had cited such factors as the general preference of banking customers for local suppliers, the significance of a dense branch network and the need for the bank to be physically close to its customers (35). If the Commission had none the less tended so far to assume in merger decisions relating to financial services that markets were national in scope, this was because an absence of competition concerns (indications of a dominant market position) meant that no thorough analysis of retail banking was necessary. However, it would be inappropriate to define the market as national when assessing the distortive effects of the aid in this case on competition on the Berlin retail banking market. It was precisely in this area, given its pre-eminent market position, that BGB would have to offer compensatory measures to reduce its market presence. On account of its dual brand strategy, among other things, BGB’s market position was far greater than was usual for regionally strong savings banks in some German cities. This concentration made market access more difficult for potential competitors and had meant that the market share of foreign banks in Berlin was negligible.
(295)
For the purposes of this decision, the Commission has no cause to depart from the position of Germany and Berliner Volksbank with respect to the geographical focus on Berlin in retail banking. As stated in the decision initiating the procedure, it has to date in the area of merger control generally assumed that the markets in the financial sector are national in scope - with the exception of financial services - but has left room for a regional definition in private-customer and corporate banking (36). The significance of the branch network and that of the bank’s local physical presence in retail banking suggest that the focus should be on the Berlin market. Customer behaviour also points to this approach since, when branches are closed or sold off in a large city such as Berlin and to the extent that customers change banks at all, they tend to switch to another locally represented credit institution, despite the increase in telebanking. The inclusion of Brandenburg, apart from the areas adjoining Berlin, therefore seemed to be casting the net too wide, as BGB’s withdrawal from Brandenburg and its concentration on the core region also suggest.
(296)
For the purposes of this decision, however, a precise definition of the geographic market is not important since it is not a question of proving that there is a dominant position but of assessing whether the proposed compensatory measures suffice to offset the distortive effects of the aid at issue by reducing market presence. There can be no doubt and no disputing the fact that the aid has helped the bank to remain on the various markets and thus also to preserve its strong position on the Berlin retail market.
(297)
The Commission has doubts about the reliability of the market share estimates that had been submitted by Germany and adjusted downwards, first because similar reporting problems in individual cases may also affect the other competitors but may not have been taken into account in the market volumes given, and second because third parties which submitted comments in the course of the proceedings and were asked for their own estimates more or less confirmed the original figures. However, independent market share calculations with verifiable distinctions by region and product are not available. Enquiries showed that no competition-based analysis in the antitrust/merger control field has been carried out in this connection by the Bundesbank/Land central bank, the Federal Cartel Office or the Commission. In the state aid field, the Commission does not have the necessary powers to conduct investigations among competitors.
(298)
Nevertheless, for the purposes of this decision, a precise analysis of market share is not necessary since, as explained above, assessing state aid does not involve proving that a dominant position exists. It is indisputable that the aid concerned here distorts or threatens to distort competition, especially on the markets on which BGB has a strong position; this also corresponds to BGB’s view of itself as the leading retail bank in Berlin. The adjusted market shares of between a little over 20 % and more than 40 % in the individual segments do not contradict this even if they are correct, which is doubtful. In this connection, it should also be noted that, according to the information submitted by Germany, BGB’s share or market penetration in 2002 in terms of first giro accounts held by private customers was 48 % and that, according to comments by BGB’s chairman of the board, the bank’s market share, with the brands Berliner Sparkasse and Berliner Bank, was in some cases more than 50 % (37).
(299)
Consequently, there is no doubt that BGB enjoys a strong market position and is clearly the leading retail group in the greater Berlin area, which has a population of roughly 4 million. Its market position has not significantly changed since its foundation in 1994, when Berliner Bank and Berliner Sparkasse (then already combining the former Sparkasse in West Berlin and that in East Berlin, with the latter enjoying a quasi-monopoly position) were brought under one roof or since the start of the crisis in 2001. This ‘stability’ serves as an indicator for its market power vis-à-vis actual and potential competitors.
(300)
Against this background, the Commission made it clear that approving restructuring aid on the basis of compensatory measures which leave BGB’s position on the Berlin market for retail banking basically intact would not be compatible with the EU's state aid rules. Germany, however, remained preoccupied with the bank’s arguments about the threat to its viability.
(301)
After intensive further negotiations on 18 December 2003 with representatives of the Federal Government and the Land of Berlin, Germany finally committed itself to the divestment of Berliner Bank as a further compensatory measure with a view to enabling the Commission to approve the aid without imposing further extensive compensation measures. It accordingly undertakes to ensure that the group sells the ‘Berliner Bank’ division as an economic entity, including at least its trade name, all customer relations associated with the trade name, as well as branch offices and staff in a legally effective, open, transparent and non-discriminatory procedure by 1 October 2006 (closing by 1 February 2007). The effective date for the determination of the number of customers, branches and front-office staff is 31 December 2003, taking into account the planned implementation of the restructuring plan notified to the Commission and natural business fluctuations, i.e. increases and decreases in the number of customers, staff, assets and liabilities that are based on individual decisions (such as the relocation of customers or employees and dissatisfaction with the previous bank or employer) and not influenced by the bank. This means in particular that BGB is not allowed to incite customers to transfer from Berliner Bank to other parts of the group, such as Berliner Sparkasse. A trustee appointed by Germany (the Land of Berlin) and approved by the Commission will ensure that the bank continues to restructure Berliner Bank in accordance with business sense, investing in it and not taking any steps to reduce its value, in particular by the transfer of private or corporate customers or sales staff to Berliner Sparkasse or other parts of the Bankgesellschaft group.
(302)
By 2006 (38) the sale of Berliner Bank will reduce the assets in retail banking by a further EUR [...]* (and, together with the measures already planned and promised, by some EUR [...]* in all. BGB’s market share in the individual segments of the Berlin retail business will be reduced by one third to one sixth as a result of the sale. The balance-sheet total will be reduced from roughly EUR 189 billion to about EUR 124 billion.
(303)
In the Commission’s view, therefore, the completed, planned and promised divestments, closures and reductions of other kinds suffice as a whole to mitigate the distortive effect of the aid measures at issue.
(304)
Lastly, it must be mentioned that, in its original notification, Germany stated that Berlin was a region within the meaning of Article 87(3)(c) of the EC Treaty and qualified for regional aid and that points 53 and 54 of the guidelines would have to be taken into account in assessing compensatory measures, without giving further explanations or specific details. Points 53 and 54 state that the assessment criteria in the guidelines also apply to assisted areas but that the capacity reduction required on markets with excess structural capacity may be less stringent. In its decision initiating the procedure, the Commission noted that it was not in a position, in the absence of further specific details, to assess the extent to which this criterion applied. Since Germany did not come back to this point in the course of the proceedings and since, as explained above, the banking sector does not involve markets with excess structural capacity, the Commission considers that points 53 and 54 are not applicable in this case.
(305)
In the Commission’s view, Germany has demonstrated satisfactorily that the amounts of the three aid measures granted - the capital injection, the risk shield and the agreement on the treatment of any claims to repayment brought against the bank by the Land of Berlin - are limited to the strict minimum needed to enable restructuring to be undertaken in the light of the existing financial resources of the bank and its shareholders. The bank received no surplus cash or surplus own resources which it could have misused for the purposes of an unreasonable expansion of its business at the expense of its competitors.
(306)
The EUR 1.755 billion capital injection in August 2001, initially granted as rescue aid, was assessed on the basis that it could help the bank secure a core-capital ratio of 5.0 % and an own-funds ratio of 9,7 %. As stated above, the Commission regards this as vital for a bank’s short-term survival. By its own efforts, in particular by reducing its risk exposure, the bank subsequently managed to increase its core-capital ratio to above 5 %. At the end of 2003 the ratio stood at around 6 %. In view of current practice on financial markets and the corresponding expectations of ratings agencies and market participants, the Commission regards a core-capital ratio of 6 % as absolutely vital in the longer term to ensure the bank’s attractiveness to capital markets. The amount of the capital injection in 2001 was absolutely necessary to maintain the bank’s core-capital ratio. In the assessment of restructuring aid as a whole, it can therefore be regarded as corresponding to the strict minimum and can thus be approved. Furthermore, as explained above, in order to prepare for the end of the two forms of public liability, the introduction of the IAS and the Basel II accord, the bank sees itself constrained to increase its core-capital ratio to at least 7 % by its own efforts and thus to secure the rating required for refinancing terms that are operationally defensible. The Commission welcomes these plans to stabilise the bank further.
(307)
As explained in paragraph 138, the risk shield, which has a nominal value of EUR 21,6 billion, is worth EUR 6,1 billion in economic terms for the purpose of assessing the state aid. On this point Berliner Volksbank argues that the Land’s risk shield actually constitutes an unlimited additional funding commitment since the Land of Berlin’s associated liability cannot be estimated at present and is therefore a ‘blank cheque’ for future losses. In Berliner Volksbank’s view, it is disproportionate in both size and duration, affords the bank virtually unlimited creditworthiness and gives it an ‘unconditional licence’ to submit offers on whatever terms it wants and, as no precise figure can be put on the additional funding commitment, it is not eligible for approval. The Commission believes this argument to be incorrect and endorses Germany’s views instead. Contrary to Berliner Volksbank’s claims, the risk shield structure specifically does not allow the bank to expand its banking or other business. Of course, it ensures that the bank does not disappear from the market altogether. But its role is confined to protecting the bank from risks deriving from old business. It cannot be used as such to generate new business. At most, it makes new business possible in that the shielded real estate service companies in particular - and the bank in general - continue to exist. But this is no more than an indirect consequence of any aid measure and cannot be used as a criterion to determine whether the amount of the aid as such is limited strictly to safeguarding the continued existence of the undertaking. The risk shield does not provide the bank with liquidity but merely indemnifies it against the continuing losses of the real estate service companies which the bank could not absorb by itself. The Land only makes payments ex post for the amount of actual claims by creditors based on a legal entitlement. In addition, under the detailed agreement, the Land exercises - via its own risk-controlling company - extensive rights to carry out inspections and to reserve approval. For an in-depth description of the workings of the detailed agreement, the Commission would refer to Germany’s comments. The Commission accordingly regards the risk shield as a whole as being limited to the strict minimum.
(308)
The Commission also considers that the aid with a maximum economic value of EUR 1,8 billion contained in the agreement between the Land of Berlin and the bank on the treatment of any claims to repayment brought by the Land of Berlin arising out of a decision in case C 48/2002 is limited to the strict minimum. Without that agreement the bank would, at the request of its auditors, have had to include in its 2002 annual accounts reserves against impending liabilities amounting to hundreds of millions of euros. This would have had a negative impact on the bank’s annual results for 2002 and on its own funds. However, at the time when its annual accounts for 2002 were drawn up, and also thereafter, the bank reported a core-capital ratio that was no more than 6 % and was partly below that figure. The bank would not have coped with any further pressure on the core-capital ratio at this stage of restructuring. As explained above, the Commission believes that in the long term a core-capital ratio of 6 % is absolutely vital. If, in its decision in case C 48/2002, the Commission were to oblige the Land of Berlin to recover from the bank the aid element incompatible with the common market, the Land of Berlin would leave its claim in the form of a deposit with the bank. However, this would happen only in so far as it were necessary to maintain a core-capital ratio of 6 % on the critical date of 1 January 2004 and so, in the Commission’s view, it constitutes the strict minimum. The authorisation by the Commission of the repayment agreement with a maximum economic value of EUR 1,8 billion is limited to an exceptional case similar to the present case, i.e. where and only to the extent the repayment would inevitably undermine the viability of the company and the restructuring plan is otherwise acceptable. Within this framework, the agreement itself constitutes restructuring aid and thus creates the need for additional compensatory measures to which Germany has finally committed itself, in particular with the divestment of Berliner Bank.
(309)
The aid totalling EUR 9,7 billion consists of three measures: a capital injection of EUR 1,755 billion by the Land of Berlin for BGB in August 2001; the risk shield amounting to a maximum of EUR 21,6 billion in nominal terms that was made available by the Land of Berlin to BGB in the period December 2001 to April 2002 and that has an economic value of EUR 6,1 billion; and the repayment agreement between the Land of Berlin and BGB of December 2002 regarding a potential recovery following a Commission decision in case C 48/2002 (Landesbank Berlin - Girozentrale), which has an economic value of up to EUR 1,8 billion.
(310)
All the preconditions for the existence of state aid under Article 87(1) of the EC Treaty are met (state resources, favourable treatment for a specific undertaking, distortion of competition, effect on trade between Member States). Of the derogations from the principle of the incompatibility of state aid with the common market, only Article 87(3)(c) of the EC Treaty, read in conjunction with the Community guidelines on state aid for rescuing and restructuring firms in difficulty, is applicable.
(311)
In its assessment - and in the light of the criteria in the guidelines - the Commission concludes that the restructuring measures already carried out and those planned are reasonable, logical and fundamentally appropriate in order to enable BGB to restore its long-term viability.
(312)
In the Commission's view, the sales, closures and reduction measures already carried out, planned or promised are sufficient to offset the market-distorting effects of the aid measures in question.
(313)
The Commission considers that the three aid measures granted - the capital injection, the risk shield and the agreement on the treatment of any claims to repayment brought against the bank by the Land of Berlin - are limited to the to the strict minimum needed to enable restructuring to be undertaken in the light of the existing financial resources of the bank and its shareholders. The bank received no surplus cash or surplus own resources which it could have misused for the purposes of an unreasonable expansion of its business at the expense of its competitors,
HAS ADOPTED THIS DECISION:
Article 1
1. The following measures for the Bankgesellschaft Berlin AG group (‘BGB’) constitute state aid within the meaning of Article 87(1) of the EC Treaty:
(a)
the capital injection of EUR 1,755 billion by the Land of Berlin in August 2001;
(b)
the guarantees (‘risk shield’) with a maximum nominal value of EUR 21,6 billion granted by the Land of Berlin on 20 December 2001 and 16 April 2002;
(c)
the agreement of 26 December 2002 between the Land of Berlin and the Landesbank Berlin (LBB) on the treatment of any claims brought by the Land of Berlin against LBB following a final decision by the Commission in case C 48/2002, which is pending.
2. The aid measures referred to in paragraph 1 are compatible with the common market, provided that Germany fully observes the undertakings communicated by Germany and set out in Article 2(1) of this decision and in the Annex hereto and provided that the aid referred to in paragraph 1(c) does not give rise to a core-capital ratio, as at 1 January 2004 of over 6 % for BGB group (taking into account the hiving-off of IBB in accordance with Article 2(1)(d).
Article 2
1. Germany has undertaken:
(a)
to ensure timely implementation of the notified restructuring plan in accordance with the conditions laid down in the Annex;
(b)
to ensure that the Land of Berlin sells it holding in BGB in accordance with the conditions laid down in the Annex;
(c)
to ensure that the BGB group sells or liquidates all holdings in real estate service companies covered by the risk shield of 16 April 2002 in accordance with the conditions laid down in the Annex;
(d)
to ensure that IBB's special reserve is transferred back in accordance with the conditions laid down in the Annex;
(e)
to ensure that the BGB group sells the ‘Berliner Bank’ division of LBB in accordance with the conditions laid down in the Annex;
(f)
to ensure that the BGB group sells its holding in BGB Ireland plc by no later than 31 December 2005.
2. Where appropriate, and on a sufficiently reasoned request from Germany, the Commission may:
(a)
grant an extension of the deadlines specified in the undertakings, or
(b)
in exceptional cases, dispense with, amend or replace one or more of the requirements or conditions set out in those undertakings.
If Germany requests that a deadline be extended, a sufficiently reasoned request shall be sent to the Commission at the latest one month before expiry of that deadline.
Article 3
Germany shall inform the Commission, within two months of notification of this decision, of the measures that have been taken and the measures it intends to take to comply with this decision.
Article 4
This decision is addressed to the Federal Republic of Germany.
Germany is required to forward a copy of this decision to the recipient of the aid immediately.
Done at Brussels, 18 February 2004.
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COUNCIL REGULATION (EC) No 702/97 of 14 April 1997 opening and providing for the administration of autonomous Community tariff quotas for certain fishery products
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 28 thereof,
Having regard to the proposal from the Commission,
Whereas Community supplies of certain species of fish or fish fillets currently depend on imports from third countries; whereas it is in the Community's interest to suspend in part or in whole the customs duties for the products in question, within Community tariff quotas of an appropriate volume; whereas, in order not to jeopardize the development prospects of this production in the Community and to ensure an adequate supply to satisfy user industries, it is advisable to open those quotas, applying customs duties varied accordingly to sensitivity of the different products on the Community market;
Whereas it is necessary, in particular, to ensure for all Community importers equal and uninterrupted access to the said quotas and to ensure the uninterrupted application of the rates laid down for the quotas to all imports of the products concerned into all Member States until the quotas have been used up;
Whereas the decision for the opening of autonomous tariff quotas should be taken by the Community; whereas, to ensure the efficiency of a common administration of these quotas, there is no reasonable obstacle to authorizing the Member States to draw from the quota-volumes the necessary quantities corresponding to actual imports; whereas, however, this method of administration requires close cooperation between the Member States and the Commission and the latter must in particular be able to monitor the rate at which the quotas are used up and inform the Member States accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
1. The import duties on the goods listed in the Annex shall be suspended at the indicated duty rate for the periods and up to the amounts indicated therein.
2. Imports of the products in question shall not be covered by the quotas referred to in paragraph 1 unless the free-at-frontier price, which is determined by the Member States in accordance with Article 22 of Council Regulation (EEC) No 3759/92 of 17 December 1992 on the common organization of the market in fishery and aquaculture products (1), is at least equal to the reference price fixed, or to be fixed, by the Community for the products or categories of products concerned.
Article 2
The tariff quotas referred to in Article 1 shall be managed by the Commission, which may take all appropriate administrative measures in order to ensure effective administration thereof.
Article 3
If an importer presents in a Member State an entry for release for free circulation, including a request for preferential benefit for a product covered by this Regulation and if this entry for release is accepted by the customs authorities, the Member States concerned shall inform the Commission and draw an amount corresponding to its requirements from the corresponding quota amount.
The drawing request, with indication of the date of acceptance of the said entries, must be transmitted to the Commission without delay.
The drawings are granted by the Commission by reference to the date of acceptance of the entries for release for free circulation by the customs authorities of the Member States concerned to the extent that the available balance so permits.
If a Member State does not use the quantities drawn, it shall return them as soon as possible to the corresponding quota amount.
If the quantities requested are greater than the available balance of the quota amount, allocation shall be made on a pro rata basis with respect to the requests. Member States shall be informed by the Commission of the drawings made.
Article 4
Each Member State shall ensure that importers of the products concerned have equal and uninterrupted access to the quotas for such time as the residual balance of the quota volumes so permits.
Article 5
Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with.
Article 6
This Regulation shall enter into force on the seventh day following that of its publication in the Official Journal of the European Communities.
It shall apply from 1 March 1997.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 14 April 1997.
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Commission Regulation (EC) No 901/2003
of 22 May 2003
fixing the export refunds on rice and broken rice and suspending the issue of export licences
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3072/95 of 22 December 1995 on the common organisation of the market in rice(1), as last amended by Commission Regulation (EC) No 411/2002(2), and in particular the second subparagraph of Article 13(3) and (15) thereof,
Whereas:
(1) Article 13 of Regulation (EC) No 3072/95 provides that the difference between quotations or prices on the world market for the products listed in Article 1 of that Regulation and prices for those products within the Community may be covered by an export refund.
(2) Article 13(4) of Regulation (EC) No 3072/95, provides that when refunds are being fixed account must be taken of the existing situation and the future trend with regard to prices and availabilities of rice and broken rice on the Community market on the one hand and prices for rice and broken rice on the world market on the other. The same Article provides that it is also important to ensure equilibrium and the natural development of prices and trade on the rice market and, furthermore, to take into account the economic aspect of the proposed exports and the need to avoid disturbances of the Community market with limits resulting from agreements concluded in accordance with Article 300 of the Treaty.
(3) Commission Regulation (EEC) No 1361/76(3) lays down the maximum percentage of broken rice allowed in rice for which an export refund is fixed and specifies the percentage by which that refund is to be reduced where the proportion of broken rice in the rice exported exceeds that maximum.
(4) Export possibilities exist for a quantity of 3900 tonnes of rice to certain destinations. The procedure laid down in Article 7(4) of Commission Regulation (EC) No 1162/95(4), as last amended by Regulation (EC) No 498/2003(5), should be used. Account should be taken of this when the refunds are fixed.
(5) Article 13(5) of Regulation (EC) No 3072/95 defines the specific criteria to be taken into account when the export refund on rice and broken rice is being calculated.
(6) The world market situation or the specific requirements of certain markets may make it necessary to vary the refund for certain products according to destination.
(7) A separate refund should be fixed for packaged long grain rice to accommodate current demand for the product on certain markets.
(8) The refund must be fixed at least once a month; whereas it may be altered in the intervening period.
(9) It follows from applying these rules and criteria to the present situation on the market in rice and in particular to quotations or prices for rice and broken rice within the Community and on the world market, that the refund should be fixed as set out in the Annex hereto.
(10) For the purposes of administering the volume restrictions resulting from Community commitments in the context of the WTO, the issue of export licences with advance fixing of the refund should be restricted.
(11) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the products listed in Article 1 of Regulation (EC) No 3072/95 with the exception of those listed in paragraph 1(c) of that Article, exported in the natural state, shall be as set out in the Annex hereto.
Article 2
With the exception of the quantity of 3900 tonnes provided for in the Annex, the issue of export licences with advance fixing of the refund is suspended.
Article 3
This Regulation shall enter into force on 23 May 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 May 2003.
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COMMISSION REGULATION (EC) No 1278/2008
of 17 December 2008
adopting emergency support measures for the pigmeat market in form of private storage aid in Ireland
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (“Single CMO” Regulation) (1), and in particular Articles 37, 43(a) and (d), 191, in conjunction with Article 4 thereof,
Whereas:
(1)
Article 37 of Regulation (EC) No 1234/2007 provides that when the average Community market price for pig carcasses as established by reference to the prices recorded in each Member State on the representative markets of the Community and weighted by means of coefficients reflecting the relative size of the pig herd in each Member State is, and is likely to remain, at less than 103 % of the reference price, the Commission may decide to grant aid for private storage.
(2)
Market prices have fallen below that level and, given seasonal and cyclical trends, this situation could persist.
(3)
The situation of the pigmeat market in Ireland is particularly critical taken into account the recent findings of elevated levels of polychlorinated biphenyls (PCBs) in pigmeat originating in Ireland. The competent authorities have taken various measures to address the situation.
(4)
Contaminated animal feed was delivered to pig farms in Ireland. The affected pig farms constitute 7 % of the total pig production in Ireland. The contaminated feed constitutes a very large portion of the pig diet resulting in high levels of dioxins in meat from pigs from the affected farms. Given the difficulties in tracing back the pigmeat to farms and given the high levels of dioxin found in the affected pigmeat, the Irish authorities decided to recall, as a precautionary measure, all pigmeat and pigmeat products from the market.
(5)
The application of those measures is causing very serious disturbance of the pigmeat market in Ireland. Given the exceptional circumstances and the practical difficulties that the pigmeat market in Ireland is experiencing, it is therefore appropriate to provide for Community emergency market support measures by granting aid for private storage in Ireland, for a limited period and relating to a limited quantity of products.
(6)
Article 31 of Regulation (EC) No 1234/2007 provides that a private storage aid may be granted for pigmeat and that aid shall be fixed by the Commission in advance or by means of tendering procedure.
(7)
As the situation on the pigmeat market in Ireland requires rapid practical action, the most appropriate procedure to grant an aid for private storage would be fixing it in advance.
(8)
Commission Regulation (EC) No 826/2008 of 20 August 2008 laying down common rules for the granting of private storage aid for certain agricultural products (2) has established common rules for the implementation of the private storage aid scheme.
(9)
Pursuant to Article 6 of Regulation (EC) No 826/2008, an aid fixed in advance is to be granted in accordance with the detailed rules and conditions provided for in Chapter III of that Regulation.
(10)
In view of the particular circumstances, it is necessary to require that the products to be placed into storage are derived from pigs that were reared on farms for which it is ascertained that these were not affected by contaminated feed. Moreover, it is necessary to provide that the products concerned originate from pigs raised and slaughtered in Ireland.
(11)
In order to facilitate the management of the measure, the pigmeat products are classified according to similarities with regard to the level of storage cost.
(12)
In order to facilitate the administrative and control work relating to the conclusion of contracts, minimum quantities of products each applicant must provide for should be fixed.
(13)
A security should be fixed in order to ensure the operators fulfil their contractual obligations and that the measure will have its desired effect on the market.
(14)
Exports of pigmeat products contribute to restoring the balance on the market. Therefore, provisions of Article 28(3) of Regulation (EC) No 826/2008 should apply when the storage period is shortened where products removed from storage are intended for export. Daily amounts to be applied for the reduction of the amount of the aid as referred to in that Article should be fixed.
(15)
For the purpose of application of the first subparagraph of Article 28(3) of Regulation (EC) No 826/2008 and for reason of consistency and clarity for operators, it is necessary to express in days the period of 2 months referred therein.
(16)
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
Scope
1. Aid for private storage shall be granted in respect of pigmeat products fulfilling the following conditions:
(a)
they come from pigs which were raised in Ireland for at least the last two months before slaughtering;
(b)
they are of sound, fair and marketable quality and come from pigs reared on farms for which it is established that they have not used feed contaminated by elevated levels of polychlorinated biphenyls (PCBs).
2. The list of categories of products eligible for aid and the relevant amounts are set out in the Annex.
Article 2
Applicable rules
Regulation (EC) No 826/2008 shall apply save as otherwise provided for in this Regulation.
Article 3
Submission of applications
1. From the date of entry into force of this Regulation, applications for private storage aid for the categories of pigmeat products eligible for aid under Article 1 may be lodged in Ireland.
2. Applications shall relate to a storage period of 90, 120, 150 or 180 days.
3. Applications shall be lodged for only one of the categories of products listed in the Annex, indicating the relevant CN code within that category.
4. The Irish authorities shall take all measures necessary to ensure compliance with Article 1(1).
Article 4
Minimum quantities
The minimum quantities per application shall be:
(a)
10 tonnes for boned products;
(b)
15 tonnes for other products.
Article 5
Securities
The applications shall be accompanied by a security equal to 20 % of the amounts of the aid fixed in columns 3 to 6 of the Annex.
Article 6
Total quantity
The total quantity for which contracts may be concluded, in accordance with Article 19 of Regulation (EC) No 826/2008, shall not exceed 30 000 tonnes of product weight.
Article 7
Removal from storage of product intended for export
1. For the purpose of the application of the first subparagraph of Article 28(3) of Regulation (EC) No 826/2008 the expiry of a minimum storage period of 60 days shall be required.
2. For the purpose of the application of the third subparagraph of Article 28(3) of Regulation (EC) No 826/2008, the daily amounts are set in column 7 of the Annex to this Regulation.
Article 8
Entry into force
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, 17 December 2008.
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COMMISSION DECISION of 23 July 1981 on a proposal by the Netherlands Government to grant aid for increasing the production capacity by an undertaking in the chemical industry (polyethylene) (Only the Dutch text is authentic) (81/716/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 given notice in accordance with the above Article to interested parties to submit their comments and having regard to these comments,
I
Whereas Article 6 of the Netherlands Law of 29 June 1978 (Wet Investeringsrekening - WIR) (1) on the promotion and guidance of investment introduced an "additional premium for major schemes" for the benefit of projects where investment exceeds Fl 30 million. The amount of the premium depends on the number of jobs created and may account for up to 4 % of the investment in question.
When examining the Netherlands Law at the draft stage, in the course of the procedure under Article 93 (3) of the EEC Treaty, the Commission pointed out that since the "additional premium for major schemes" involved no sectoral or regional objectives it therefore constituted a general aid system, and that since the arrangements applied to all investment, without distinction by reference to given undertakings, regions or sectors, they could not qualify for the derogations under Article 92 (3) (a) or (c). In the absence of such specification, the Commission could not assess the system's effects on trade between Member States and on competition and therefore assess its compatibility with the common market.
In respect of such general aid systems it is now the well-established policy of the Commission to accept them subject to one of two conditions, namely that the Member State concerned notifies to the Commission either a plan for regional or sectoral application or alternatively, where this is felt not to be possible, significant individual cases of application.
In line with this approach, and in accordance with Article 93 (3) of the EEC Treaty, the Commission requested prior notification in good time of individual cases of application of the "additional premium for major schemes", account being taken of the amount of investment concerned.
During discussions with the Netherlands authorities the Commission stated that it would assess each case on its own merits in the light of the rules contained in Article 92 et seq. or rules developed during administration of those provisions. The Netherlands Government could not infer that, by requesting regular prior notification, the Commission had taken a favourable view of the additional premium system. (1) Staatsblad 1978, No 368.
The Netherlands Government complied with the Commission's request by including the prior notification procedure in Articles 6 (7) and 7 (3) of Chapter V of the Netherlands Law of 29 June 1978.
II
By letter of 12 December 1978 the Netherlands Government, as required by the procedure, informed the Commission of its intention to grant the "additional premium for major schemes" for a proposed investment in the south of Limburg, at Geleen and in the neighbouring boroughs. The recipient firm is part of a chemical group whose capital is held by the Netherlands and whose head office is at Heerlen.
The proposed aid would enable the recipient firm to carry on a Fl 1 71 billion investment programme begun in 1975 with a petrochemical cracking plant. The main elements of the present programme relate to the development of facilities downstream of this cracking plant, including more particularly, production units for PVC, butadiene and low and high density polyethylene. This programme comprises a total of 21 projects.
The recipient firm is pursuing the normal development of its facilities at Geleen, which in fact flows from the decision taken in 1975 to establish a petrochemical cracking tower there.
The Netherlands scheme will have the effect of increasing the production of certain intermediate plastic products, including high and low density polyethylene. The production capacity for the low density type will be increased from 275 000 to 375 000 tonnes per year and that for the high density type from 50 000 to 120 000 tonnes per year.
The firm intends to achieve 54 % of its turnover for the low density type through sales in other Member States ; the corresponding figure for the high density type is 44 %.
The "additional premium for major schemes" granted in this case would amount to Fl 25 million, representing 2 727 % of the amount of the investment.
This investment is located in a regional development area and will receive, additionally, a grant of Fl 16 71 million under the Netherlands regional aid system (Investeringspremieregeling, IPR), because of the contribution it is expected to make towards the establishment of a better socio-economic balance in the region concerned. This grant does not take account as yet of the whole of the planned investment.
III
Investigation of the polyethylene market in the Community shows a surplus production capacity of the order of 25 %. The additional capacities which would be created would be likely to worsen this overcapacity.
The production capacity of the recipient firm represents about 10 and 8 % respectively of the Community market for low and high density polyethylene.
IV
The Netherlands Government replied on 5 March 1979, 16 March 1979 and 12 November 1979 to the Commission's notice under Article 93 of the EEC Treaty. It emphasized that the proposed aid concerned a scheme which would have a considerable catalyzing effect in a region which has the highest unemployment rate in the Netherlands.
The Netherlands Government observed that although there is at present an over-capacity for certain categories of polyethylene, the recipient firm has concentrated on the development of quality products intended for specific markets.
The recipient firm confirms these assessments and stresses in addition that the implementation of the investment would create 2 639 jobs. Moreover, it considers that the new cracking plant, which can work completely on gas-oil, represents an advantage in terms of ease of supply.
In the course of consultations with interested parties, the Government of a Member State argued that the increase in polyethylene capacity is liable to affect trading conditions to an extent contrary to the common interest and can only be justified if the scheme leads to the creation of a sufficient number of jobs.
The Governments of two other Member States share the Commission's view that investments in the field of polyethylene are inopportune, since they would aggravate the over-capacity which already exists. The Government of a fourth Member State also opposes the proposed aid.
V
The aid proposed by the Netherlands Government is therefore liable to affect trade between Member States and to distort or threaten to distort competition within the meaning of Article 92 (1) of the EEC Treaty by favouring the undertaking in question or the production of its goods.
Article 92 (1) of the EEC Treaty provides that, in principle, any aid fulfilling the criteria which it sets out is incompatible with the common market. The derogations from this principle set out in Article 92 (3) of the EEC Treaty specify objectives pursued in the Community interest and not in that of the individual recipient of the aid. These derogations must be strictly interpreted in the examination both of any regional or sectoral aid scheme and of any individual case of application of general aid systems. In particular, they may be applied only where the Commission establishes that, in the absence of the aid, the free play of market forces would not of itself induce the recipient undertakings to act in such a manner as to contribute to the attainment of one of the objectives specified by those derogations.
To derogate in this way in favour of aids offering no compensatory benefit would be tantamount to allowing trade between Member States to be affected and competition to be distorted without any justification in terms of the interest of the Community, while at the same time granting undue advantages to certain Member States.
When applying the principles set out above in its examination of individual cases of application of general aid systems, the Commission must be satisfied that there exists on the part of the recipient undertaking a specific compensatory justification in that the grant of aid is required to promote the attainment of one of the objectives set out in Article 92 (3) of the Treaty. Where this cannot be demonstrated, and especially where the proposed investment nevertheless takes place, it is clear that the aid does not contribute to the attainment of the objectives of the derogations but serves to increase the financial power of the undertaking in question.
In the case in question there does not appear to be such a compensatory justification on the part of the recipient of the aid.
The Netherlands Government has not been able to give, nor has the Commission found, any grounds to establish that the proposed aid meets the conditions justifying one of the derogations for which provision is made in Article 92 (3) of the EEC Treaty.
As regards the derogations of Article 92 (3) (a) and (c) of the EEC Treaty concerning aid to promote or to facilitate the development of certain areas, it cannot be considered that the standard of living in south Limburg is "abnormally low" or that it suffers from "serious under-employment" within the meaning of subparagraph (a). As regards the derogation of subparagraph (c), the Netherlands Government has already taken account of the contribution which the investments ate likely to make towards improving the socio-economic balance of the area by granting assistance under the Netherlands regional aid scheme, the "Investeringspremierregeling" (IPR). The Netherlands Government, in its comments submitted to the Commission, itself emphasized that the "additional premium for major schemes" was not granted on account of regional considerations.
In respect of the derogations envisaged in Article 92 (3) (b) of the EEC Treaty, investment of this type is brought about in a general way by normal market forces. Moreover, there is nothing peculiar to the investment in question to qualify it as a project of common European interest or as one designed to remedy a serious disturbance in the economy of a Member State, the promotion of which merits a derogation under Article 92 (3) (b) of the EEC Treaty from the principle of the incompatibility of aids laid down by Article 92 (1). In stating its views on the WIR, the Commission recalled that the Netherlands are part of the Community's central regions. These regions are not suffering from the most serious economic and social problems in the Community but they are the regions where there is a real risk of an upward spiral of aids, and where any aid is likely, more than elsewhere, to affect trade between Member States. Furthermore, the information available on the socio-economic situation in that country does not point to the conclusion that it is suffering from a serious disturbance in its economy within the meaning of the Treaty. In individual cases of application the "additional premium for major projects" is not granted for the purpose of dealing with such a situation. To take any other view would enable the Netherlands, in the present climate of slow growth and high unemployment throughout the Community, to divert to their advantage investment which might be made in other, less well-placed, Member States. Recent social and economic trends in the Community justify maintaining this approach as regards both the scheme itself and possible cases of application.
Finally, as regards the derogations provided for in Article 92 (3) (c) in favour of "aid to facilitate the development of certain economic activities", examination of the development of the sectors concerned by the two projects for the production of the low and high density polyethylene industry, particularly with regard to forecast demand for the products concerned, shows that the play of market forces should be capable itself, without State intervention, of ensuring a normal development of this activity. In the present case, the object is, essentially, to increase the production capacity of the Netherlands firm to enable it to profit from investments already made. In addition, the fact that a substantial part of the production resulting from the firm's capacity, including the proposed increase, is intended to be exported to other Member States, and this in the context of an existing surplus capacity, does not justify the conclusion that the conditions of trade would not be altered, by such an aid, to an extent contrary to the common interest.
In view of the foregoing, the abovementioned aid proposed by the Netherlands Government does not fulfil the conditions necessary for it to benefit from any of the derogation referred to in Article 92 (3) of the EEC Treaty,
HAS ADOPTED THIS DECISION:
Article 1
The Kingdom of the Netherlands shall refrain from implementing its proposal, notified to the Commission by letter dated 12 December 1978 from its Minister for Foreign Affairs, to grant the "additional premium for major schemes" in favour of investment made at Geleen and the neighbouring boroughs by a Netherlands undertaking in the chemical field.
Article 2
The Kingdom of the Netherlands shall inform the Commission within two months of the date of notification of this Decision of the measures which it has taken to comply with it.
Article 3
This Decision is addressed to the Kingdom of the Netherlands.
Done at Brussels, 23 July 1981.
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COMMISSION REGULATION (EEC) No 231/93 of 3 February 1993 laying down certain detailed rules for the application of the supplements to the special premium for producers of beef and veal and to the premium for maintaining suckler cows in the French overseas departments and the Azores and Madeira
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3763/91 of 16 December 1991 introducing specific measures in respect of certain agricultural products for the benefit of the French overseas departments (1), as amended by Commission Regulation (EEC) No 3714/92 (2), and in particular Article 9 thereof,
Having regard to Council Regulation (EEC) No 1600/92 of 15 June 1992 concerning specific measures for the Azores and Madeira relating to certain agricultural products (3), as amended by Regulation (EEC) No 3714/92, and in particular Article 14 (4) and
Article 24
(6) thereof,
Whereas Regulations (EEC) No 3763/91 and (EEC) No 1600/92 provide for specific measures concerning agricultural products of the French overseas departments (hereinafter called 'OD') and of the Azores and Madeira; whereas such measures involve, in the beef and veal sector, a supplement to the special premium for male bovine animals and to the premium for maintaining suckler cows as provided for by Community legislation; whereas provision should be made for those supplements to be granted under the rules applicable to those premium schemes;
Whereas the measures for the benefit of beef and veal products of the Azores seek to bolster traditional economic activities vital to the Azores archipelago; whereas one such traditional activity in the beef and veal sector consists of the production of animals for fattening in other regions of the Community; whereas provision should therefore be made in order that the supplement to the special premium may also be paid to the Azores livestock producer prior to shipment of the animals;
Whereas, in order to achieve the objectives set for the territories in question and to take account of the specific needs of the different regions concerned, the authorities of the Member States should be permitted to adopt additional provisions with regard to the granting of such aids;
Whereas provision should be made for the detailed rules to apply as from the entry into force of the schemes adopted for the 'OD' and for the Azores and Madeira - that is, from the beginning of 1992 and from 1 July 1992 respectively;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
The supplement to the premium for maintaining suckler cows, provided for in Article 5 (2) of Regulation (EEC) No 3763/91 for the French overseas departments (OD) and in Articles 14 (3) and 24 (3) of Regulation (EEC) No 1600/92 for Madeira and the Azores respectively shall be granted on the basis of the rules applicable to applications under the scheme for the premium for maintaining suckler cows.
Article 2
1. The supplement to the special premium for the fattening of male bovine animals, provided for in Article 5 (1) of Regulation (EEC) No 3763/91 in respect of the French overseas departments and in Articles 14 (2) and 24 (2) of Regulation (EEC) No 1600/92 for Madeira and the Azores respectively, shall be granted on the basis of the provisions applicable to applications under the scheme for the special premium for beef and veal producers.
2. The supplement referred to in paragraph 1 shall also be granted, within the limits of the numbers determined under the special premium scheme, for male bovine animals born and raised over a minimum period of three months in the Azores and which are dispatched, before attaining the age of eight months, to another region of the Community, for fattening.
The supplement shall in such circumstances be granted when the animal leaves the Azores, upon application by the producer who has most recently undertaken the raising of the animals concerned over a minimum period of two months. Each application shall include:
- the identification numbers of the animals,
- a declaration by the producer that the animal is over three months and under eight months of age, and
- a declaration by the consignor indicating the designation of the animal.
The competent authorities shall take the necessary measures, notably with regard to identification, to ensure that the supplement applicable to animals in the Azores is not paid again, as the case may be, in Madeira or the Canary Islands.
For 1992, the competent authorities are authorized to grant the supplement in respect of animals for which there is satisfactory evidence that they have fulfilled the conditions set out in this paragraph and have been shipped for subsequent fattening in another region of the Community.
Article 3
The competent authorities of the Member States concerned may adopt, as necessary, additional provisions with regard to the granting of the supplements referred to in Articles 1 and 2. They shall inform the Commission of such action forthwith.
The competent authorities shall also notify the Commission each year, by 31 March at the latest, of the number of animals in respect of which the supplement has been applied for and granted, specifying, where applicable, the number of animals in respect of which the supplement referred to in Article 2 (2) has been paid.
Article 4
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply to supplements paid in respect of the French overseas departments for 1992 and, in the case of Madeira and the Azores, to supplements paid on or after 1 July 1992.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 February 1993.
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COUNCIL DIRECTIVE 2006/67/EC
of 24 July 2006
imposing an obligation on Member States to maintain minimum stocks of crude oil and/or petroleum products
(Codified version)
(Text with EEA relevance)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 100 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Having regard to the opinion of the European Economic and Social Committee (2),
Whereas:
(1)
Council Directive 68/414/EEC of 20 December 1968 imposing an obligation on Member States of the EEC to maintain minimum stocks of crude oil and/or petroleum products (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified.
(2)
Imported crude oil and petroleum products are of importance in providing the Community with supplies of energy. Any difficulty, even temporary, having the effect of reducing supplies of such products imported from third States, or significantly increasing the price thereof on international markets, could cause serious disturbances in the economic activity of the Community. The Community must therefore be in a position to offset or at least to diminish any harmful effects in such a case.
(3)
A crisis in obtaining supplies could occur unexpectedly and it is therefore essential to establish forthwith the necessary means to make good a possible shortage.
(4)
To this end, it is necessary to increase the security of supply for crude oil and petroleum products in Member States by establishing and maintaining minimum stocks of the most important petroleum products.
(5)
It is necessary that the organisational arrangements for oil stocks do not prejudice the smooth running of the internal market.
(6)
In Directive 73/238/EEC (5) the Council decided upon appropriate measures - including drawing on oil stocks - to be taken in the event of difficulties in the supply of crude oil and petroleum products to the Community; Member States have undertaken similar obligations in the Agreement on an ‘International Energy Programme’.
(7)
It is necessary that stocks be at the disposal of Member States should difficulties in oil supply arise. Member States should possess the powers and the capacity to control the use of stocks so that they can be made available promptly for the benefit of the areas which most need oil supplies.
(8)
Organisational arrangements for the maintenance of stocks should ensure the stocks' availability and their accessibility to the consumer.
(9)
It is appropriate that organisational arrangements for the maintenance of stocks are transparent, ensuring a fair and non-discriminatory sharing of the burden of the stock-holding obligation. Therefore, information relating to the cost of holding oil stocks may be made available by Member States to interested parties.
(10)
In order to organise the maintenance of stocks, Member States may have recourse to a system based on a stockholding body or entity which will hold all, or part, of the stocks making up their stock-holding obligation. The balance, if any, should be maintained by refiners and other market operators. Partnership between the Government and the industry is essential to operate efficient and reliable stock-holding mechanisms.
(11)
Indigenous production contributes in itself to security of supply. The oil market evolution can justify an appropriate derogation from the obligation to maintain oil stocks for Member States with indigenous oil production. In accordance with the principle of subsidiarity, Member States may exempt undertakings from the obligation to maintain stocks in respect of an amount not exceeding the quantity of products which those undertakings manufacture from indigenously produced crude oil.
(12)
It is appropriate to adopt approaches which are already followed by the Community and the Member States within their international obligations and agreements. Owing to changes in the pattern of oil consumption, international aviation bunkers have become an important component of this consumption.
(13)
There is a need to adapt and simplify the Community statistical reporting mechanism concerning oil stocks.
(14)
Oil stocks can, in principle, be held anywhere in the Community and, therefore, it is appropriate to facilitate the establishment of stocks outside national territory. It is necessary that decisions for holding stocks outside national territory be taken by the Government of the Member State concerned according to its needs and supply security considerations. In the case of stocks held at the disposal of another undertaking, or body/entity, more detailed rules are needed to guarantee their availability and accessibility in the event of oil supply difficulties.
(15)
It is desirable, in order to ensure the smooth running of the internal market, to promote the use of agreements between Member States concerning minimum stockholding in order to further the use of storage facilities in other Member States. It is for the Member States concerned to take the decision to conclude such agreements.
(16)
It is appropriate to reinforce the administrative supervision of stocks and establish efficient mechanisms for the control and verification of stocks. A regime of sanctions is necessary to impose such a control.
(17)
The Council should be regularly informed on the state of the security stocks in the Community.
(18)
Since the objective of the action to be taken, namely the maintenance of a high level of security in the supply of crude oil within the Community, by means of reliable and transparent arrangements based on solidarity between Member States, while complying with the rules of the internal market and the competition rules, may be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
(19)
This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex I, Part B,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. Member States shall adopt such laws, regulations or administrative provisions as may be appropriate in order to maintain within the Community at all times, subject to the provisions of Article 10, their stocks of petroleum products at a level corresponding, for each of the categories of petroleum products listed in Article 2, to at least 90 days average daily internal consumption in the preceding calendar year referred to in Article 4(2).
2. That part of internal consumption met by derivatives of petroleum produced indigenously by the Member State concerned may be deducted up to a maximum of 25 % of the said consumption. The domestic distribution of the result of such a deduction shall be decided by the Member State concerned.
Article 2
The following categories of product shall be taken into account in calculating internal consumption:
(a)
motor spirit and aviation fuel (aviation spirit and jet-fuel of the gasoline type);
(b)
gas oil, diesel oil, kerosene and jet-fuel of the kerosene type;
(c)
fuel oils.
Bunker supplies for sea-going vessels shall not be included in the calculation of internal consumption.
Article 3
1. Stocks maintained in accordance with Article 1 shall be fully at the disposal of Member States should difficulties arise in obtaining oil supplies. Member States shall ensure that they have the legal powers to control the use of stocks in such circumstances.
At all other times, Member States shall ensure the availability and accessibility of these stocks. They shall establish arrangements allowing for the identification, accounting and control of the stocks.
2. Member States shall ensure that fair and non-discriminatory conditions apply in their stock-holding arrangements.
The cost burden resulting from the maintenance of stocks in accordance with Article 1 shall be identified by transparent arrangements. In this context, Member States may adopt measures to obtain appropriate information regarding the cost burden of stock-holding in accordance with Article 1 and to make such information available to interested parties.
3. To fulfil the requirements of paragraphs 1 and 2, Member States may decide to have recourse to a stock-holding body or entity which will be responsible for holding all or part of the stocks.
Two or more Member States may decide to have recourse to a joint stock-holding body or entity. In that case they shall be jointly responsible for the obligations deriving from this Directive.
Article 4
1. Member States shall submit to the Commission a statistical summary showing stocks existing at the end of each month, drawn up in accordance with Article 5(2) and (3) and Article 6 and specifying the number of days of average consumption in the preceding calendar year which those stocks represent. This summary shall be submitted at the latest by the 25th day of the second month after the month to be reported.
2. A Member State's stock-holding obligation shall be based on the previous calendar year's internal consumption. At the beginning of each calendar year, Member States shall re-calculate their stock-holding obligation at the latest by 31 March in each year and ensure that they comply with their new obligations as soon as possible and, in any event, at the latest by 31 July in each year.
3. In the statistical summary, stocks of jet-fuel of the kerosene type shall be reported separately under the category referred to in point (b) of Article 2.
Article 5
1. Stocks required to be maintained by Article 1 may be maintained in the form of crude oil and intermediate products, as well as in the form of finished products.
2. In the statistical summary of stocks existing at the end of each month:
(a)
finished products shall be accounted for according to their actual tonnage;
(b)
crude oil and intermediate products shall be accounted for:
(i)
in the proportions of the quantities for each category of product obtained during the preceding calendar year from the refineries of the Member State concerned; or
(ii)
on the basis of the production programmes of the refineries of the Member State concerned for the current year; or
(iii)
on the basis of the ratio between the total quantity manufactured during the preceding calendar year in the Member State concerned of products covered by the obligation to maintain stocks and the total amount of crude oil used during that year, up to a maximum of 40 % of the total obligation for the first and second categories (petrol and gas oils), and up to a maximum of 50 % for the third category (fuel oils).
3. Blending components, when intended for processing into the finished products listed in Article 2, may be substituted for the products for which they are intended.
Article 6
1. When the level of minimum stocks provided for in Article 1 is calculated, only those quantities which would be held in accordance with Article 3(1) shall be included in the statistical summary.
2. Subject to the provisions of paragraph 1, the following may be included in the stocks:
(a)
supplies on board oil tankers in port for the purpose of discharging, once the port formalities have been completed;
(b)
supplies held in ports of discharge;
(c)
supplies held in tanks at the entry to oil pipelines;
(d)
supplies held in refinery tanks, excluding those supplies in pipes and refining plant;
(e)
supplies held in storage by refineries and by importing, storage or wholesale distribution firms;
(f)
supplies held in storage by large-scale consumers in compliance with the provisions of national law concerning the obligation to maintain permanent stocks;
(g)
supplies held in barges and coasting-vessels engaging in transport within national frontiers, on condition that it is possible for the competent authorities to keep a check on such supplies and provided that the supplies can be made available immediately.
3. The following shall, in particular, be excluded from the statistical summary: indigenous crude oil not yet extracted; supplies intended for the bunkers of sea-going vessels; supplies in direct transit apart from the stocks referred to in Article 7(1); supplies in pipelines, in road tankers and rail tank-wagons, in the storage tanks of retail outlets, and those held by small consumers.
Quantities held by the armed forces and those held for them by the oil companies shall also be excluded from the statistical summary.
Article 7
1. For the purposes of implementing this Directive, stocks may be established, under agreements between Governments, within the territory of a Member State for the account of undertakings, or bodies/entities, established in another Member State. It is for the Government of the Member State concerned to decide whether to hold a part of its stocks outside its national territory.
The Member State on whose territory the stocks are held under the framework of such an agreement shall not oppose the transfer of these stocks to the other Member States for the account of which stocks are held under that agreement; it shall keep a check on such stocks in accordance with the procedures specified in that agreement but shall not include them in its statistical summary. The Member State on whose behalf the stocks are held may include them in its statistical summary.
Together with the statistical summary, each Member State shall send a report to the Commission concerning the stocks maintained within its own territory for the benefit of another Member State, as well as the stocks held in other Member States for its own benefit. In both cases, the storage locations and/or companies holding the stocks, quantities and product category - or crude oil - stored will be indicated in the report.
2. Drafts of the agreements mentioned in the first subparagraph of paragraph 1 shall be sent to the Commission, which may make its comments known to the Governments concerned. The agreements, once concluded, shall be notified to the Commission, which shall make them known to the other Member States.
Agreements shall satisfy the following conditions:
(a)
they must relate to crude oil and to all petroleum products covered by this Directive;
(b)
they must lay down conditions and arrangements for the maintenance of stocks with the aim of safeguarding control and availability of these stocks;
(c)
they must specify the procedures for checking and identifying the stocks provided for, inter alia, the methods for carrying out and cooperating on inspections;
(d)
they must as a general rule be concluded for an unlimited period;
(e)
they must state that, where provision is made for unilateral termination, the latter shall not operate in the event of a supply crisis and that, in any event, the Commission shall receive prior information of any termination.
3. When stocks established under such agreements are not owned by the undertaking, or body/entity, which has an obligation to hold stocks, but are held at the disposal of this undertaking, or body/entity, by another undertaking, or body/entity, the following conditions shall be met:
(a)
the beneficiary undertaking, or body/entity, must have the contractual right to acquire these stocks throughout the period of the contract; the methodology for establishing the price of such acquisition must be agreed between the parties concerned;
(b)
the minimum period of such a contract must be 90 days;
(c)
storage location and/or companies holding the stocks at the disposal of the beneficiary undertaking, or body/entity, as well as quantity and category of product, or crude oil, stored in that location must be specified;
(d)
the actual availability of the stocks for the beneficiary undertaking, or body/entity, must be guaranteed, at all times throughout the period of the contract, by the undertaking or body/entity holding the stocks at the disposal of the beneficiary undertaking, or body/entity;
(e)
the undertaking, or body/entity, holding the stocks at the disposal of the beneficiary undertaking, or body/entity, must be one which is subject to the jurisdiction of the Member State on whose territory the stocks are situated insofar as the legal powers of that Member State to control and verify the existence of the stocks are concerned.
Article 8
Member States shall adopt all the necessary provisions and take all the necessary measures to ensure control and supervision of stocks. They shall put in place mechanisms to verify the stocks according to the provisions of this Directive.
Article 9
Member States shall determine the penalties applicable to breaches of the national provisions adopted pursuant to this Directive and shall take any measure necessary to ensure the implementation of these provisions. The penalties shall be effective, proportionate and dissuasive.
Article 10
1. If difficulties arise with regard to Community oil supplies, the Commission shall, at the request of any Member State or on its own initiative, arrange a consultation between the Member States.
2. Save in cases of particular urgency or in order to meet minor local needs, Member States shall refrain, prior to the consultation provided for in paragraph 1, from drawing on their stocks to any extent which would reduce those stocks to below the compulsory minimum level.
3. Member States shall inform the Commission of any withdrawals from their reserve stocks and shall communicate as soon as possible:
(a)
the date upon which stocks fell below the compulsory minimum;
(b)
the reasons for such withdrawals;
(c)
the measures, if any, taken to replenish stocks;
(d)
an appraisal, if possible, of the probable development of the situation with regard to the stocks while they remain below the compulsory minimum.
Article 11
The Commission shall submit regularly to the Council a report on the situation concerning stocks in the Community, including if appropriate on the need for harmonisation in order to ensure effective control and supervision of stocks.
Article 12
Directive 68/414/EEC shall be repealed, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and implementation of the Directives set out in Annex I, Part B.
References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.
Article 13
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
Article 14
This Directive is addressed to the Member States.
Done at Brussels, 24 July 2006.
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COMMISSION REGULATION (EEC) No 2908/93 of 20 October 1993 re-establishing the levying of customs duties on products of categories 97 and 114 (order Nos 40.0970 and 40.1140), originating in Brazil, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3832/90 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3832/90 of 20 December 1990 applying generalized tariff preferences for 1991 in respect of textile products originating in developing countries (1), extended for 1993 by Council Regulation (EEC) No 3917/92 (2), and in particular Article 12 thereof,
Whereas Article 10 of Regulation (EEC) No 3832/90 provides that preferential tariff treatment shall be accorded for 1993 for each category of products subjected in Annexes I and II thereto to individual ceilings, within the limits of the quantities specified in column 8 of Annex I and column 7 of Annex II, in respect of certain or each of the countries or territories of origin referred to in column 5 of the same Annexes;
Whereas Article 11 of the abovementioned Regulation provides that the levying of customs duties may be re-established at any time in respect of imports of the products in question once the relevant individual ceilings have been reached at Community level;
Whereas, in respect of products of categories 97 and 114 (order Nos 40.0970 and 40.1140), originating in Brazil, the relevant ceiling respectively amounts to 22 and 63 tonnes;
Whereas on 20 August 1993 imports of the products in question into the Community, originating in Brazil, a country covered by preferential tariff arrangements, reached and were charged against those ceilings;
Whereas it is appropriate to re-establish the levying of customs duties for the products in question with regard to Brazil,
HAS ADOPTED THIS REGULATION:
Article 1
As from 26 October 1993 the levying of customs duties, suspended pursuant to Regulation (EEC) No 3832/90, shall be re-established in respect of the following products, imported into the Community and originating in Brazil:
40.0970 97 (tonnes) 5608 11 11
5608 11 19
5608 11 91
5608 11 99
5608 19 11
5608 19 19
5608 19 31
5608 19 39
5608 19 91
5608 19 99
5608 90 00 Nets and netting made of twine, cordage or rope, and made up fishing nets of yarn, twine, cordage or rope 40.1140 114 (tonnes) 5902 10 10
5902 10 90
5902 20 10
5902 20 90
5902 90 10
5902 90 90
Woven fabrics and articles for technical uses 5908 00 5909 00 10
5909 00 90
5910 00 00
5911 10 00
ex 5911 20 00
5911 31 11
5911 31 19
5911 31 90
5911 32 10
5911 32 90
5911 40 00
5911 90 10
5911 90 90
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, 20 October 1993.
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COUNCIL DIRECTIVE 92/94/EEC of 9 November 1992 amending Directive 75/273/EEC concerning the Community list of less-favoured farming areas within the meaning of Directive 75/268/EEC (Italy)
THE CONCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive No 75/268/EEC of 28 April 1975 on mountain and hill farming and farming in certain less-favoured areas (1), and in particular Article 2 (2) thereof,
Having regard to the proposal from the Commission (2),
Having regard to the opinion of the European Parliament (3),
Whereas Directive 75/273/EEC (4) lays down the areas in Italy which are included in the Community list of less-favoured areas within the meaning of Article 3 (3), (4) and (5) of Directive 75/268(EEC;
Whereas the Italian Government has requested, in accordance with Article 2 (2) of Directive 75/268/EEC, that the Community list of areas in the Annex to Directive 75/273/EEC be amended;
Whereas the new areas to be included in the list comply with the criteria and figures applied pursuant to Directive 75/273/EEC to determine areas within the meaning of Article 3 (4) of Directive 75/268/EEC;
Whereas the amendment requested by the Italian Government represents 0,6 % of the utilizable agricultural areas in Italy; whereas, as a result of this request, all the successive extensions submitted by the Italian Government since the last amendment to Directive 75/273/EEC mean a total increase of more than 1,5 % of the utilizable agricultural area in Italy,
HAS ADOPTED THIS DIRECTIVE:
Article 1
The list of less-favoured areas in Italy in the Annex to Directive 75/273/EEC is hereby supplemented to include the areas listed in the Annex to this Directive.
Article 2
This Decision is addressed to the Republic of Italy.
Done at Brussels, 9 November 1992.
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COMMISSION REGULATION (EC) No 1231/2006
of 16 August 2006
amending Annexes I and II to Council Regulation (EEC) No 2377/90 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin, as regards ceftiofur and polyoxyethylene sorbitan monooleate and trioleate
(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 2377/90 of 26 June 1990 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin (1), and in particular Articles 2 and 3 thereof,
Having regard to the opinions of the European Medicines Agency formulated by the Committee for Medicinal Products for Veterinary Use,
Whereas:
(1)
All pharmacologically active substances used in the Community in veterinary medicinal products intended for food-producing animals should be evaluated in accordance with Regulation (EEC) No 2377/90.
(2)
The substance Ceftiofur is currently included in Annex I to Regulation (EEC) No 2377/90 for bovine and porcine for muscle, fat, liver and kidney and for bovine for milk. The entry for Ceftiofur in that Annex should be modified to include ovine and extended to all mammalian food-producing species for muscle, fat, liver, kidney and milk.
(3)
The substance polyoxyethylene sorbitan monooleate is currently included in Annex II to Regulation (EEC) No 2377/90 for all food-producing species. The entry in that Annex for polyoxyethylene sorbitan monooleate should be replaced by polyoxyethylene sorbitan monooleate and trioleate covering polyoxyethylene sorbitan trioleate for all food-producing species.
(4)
Regulation (EEC) No 2377/90 should therefore be amended accordingly.
(5)
An adequate period should be allowed before the applicability of this Regulation in order to enable Member States to make any adjustment which may be necessary in the light of this Regulation to the authorisations to place the veterinary medicinal products concerned on the market which have been granted in accordance with Directive 2001/82/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to veterinary medicinal products (2) to take account of the provisions of this Regulation.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Veterinary Medicinal Products,
HAS ADOPTED THIS REGULATION:
Article 1
Annexes I and II to Regulation (EEC) No 2377/90 are amended in accordance with 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 16 October 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 August 2006.
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COMMISSION REGULATION (EC) No 494/2006
of 27 March 2006
amending the representative prices and additional duties for the import of certain products in the sugar sector fixed by Regulation (EC) No 1011/2005 for the 2005/2006 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (1),
Having regard to Commission Regulation (EC) No 1423/95 of 23 June 1995 laying down detailed implementing rules for the import of products in the sugar sector other than molasses (2), and in particular the second sentence of the second subparagraph of Article 1(2), and Article 3(1) thereof,
Whereas:
(1)
The representative prices and additional duties applicable to imports of white sugar, raw sugar and certain syrups for the 2005/2006 marketing year are fixed by Commission Regulation (EC) No 1011/2005 (3). These prices and duties were last amended by Commission Regulation (EC) No 420/2006 (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 1423/95,
HAS ADOPTED THIS REGULATION:
Article 1
The representative prices and additional duties on imports of the products referred to in Article 1 of Regulation (EC) No 1423/95, as fixed by Regulation (EC) No 1011/2005 for the 2005/2006 marketing year are hereby amended as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 28 March 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 March 2006.
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*****
COMMISSION DECISION
of 8 April 1987
amending Decision 86/301/EEC authorizing Member States to permit temporarily the marketing of forest reproductive material not satisfying the requirements of Council Directive 66/404/EEC
(87/241/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 66/404/EEC of 14 June 1966 on the marketing of forest reproductive material (1), as last amended by Regulation (EEC) No 3768/85 (2), and in particular Article 15 (1) thereof,
Having regard to the requests submitted by certain Member States,
Whereas the production of forest reproductive material is at present insufficient in all Member States so that their demand cannot be met with reproductive material conforming to the provisions of Directive 66/404/EEC;
Whereas, taking into account that the work necessary for the granting of equivalence in respect of forest reproductive material from certain third countries has not yet been completed, those countries are also not in a position to supply sufficient quantities of forest reproductive material belonging to the categories permitted in the Community;
Whereas, by Decision 86/301/EEC (3), as amended by Decision 86/607/EEC (4), the Commission authorized the Member States to permit temporarily the marketing of forest reproductive material which satisfies less stringent requirements;
Whereas it has appeared that this authorization is not sufficient to cover fully the requirements of the Member States;
Whereas, in particular, the requirements for material of Picea sitchensis of Canadian (Queen Charlotte Island) provenance cannot at present be covered by sufficient quantities of material produced in the Community of a comparable provenance; whereas the suitability of material of such comparable provenance for planting purposes has not been established for all the intended locations; whereas it is therefore necessary to allow the importation of material whose quality has already been proved in previous years;
Whereas, moreover, the Kingdom of Denmark, Ireland and the United Kingdom should be authorized, for a limited period, to permit the marketing of further reproductive material of Picea abies and Picea sitchensis satisfying less stringent requirements;
Whereas it is necessary, because of the extension of the marketing period, to amend the expiry date of the authorizations;
Whereas the new authorizations should be subject to the same conditions as the authorizations granted by Decision 86/301/EEC;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Seed and Propagating Material for Agriculture, Horticulture and Forestry,
HAS ADOPTED THIS DECISION:
Article 1
Decision 86/301/EEC is hereby amended as follows:
1. In Article 4 the date '28 February 1987' is replaced by the date '30 September 1987;
2. In the column of the Annex headed 'Picea abies Karst.' the following text is added to the DK entry:
1.2 // '100 // DK' // //
3. In the column of the Annex headed 'Picea sitchensis Trautv. et Mey'
- the abbreviation 'exp.' is deleted from the D, DK and F entries,
- the following text is added to the GB entry:
1.2 // // // '50 // CDN (Vancouver Island) // 20 // USA (Alaska)' // //
- the following text is added to the IRL entry:
1.2 // // // '150 // CDN (Q. Charlotte Isl.)' // // L 355, 16. 12. 1986, p. 40.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 8 April 1987.
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Commission Regulation (EC) No 1434/2003
of 11 August 2003
on the issue of system B export licences in the fruit and vegetables sector (table grapes)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables(1), as last amended by Commission Regulation (EC) No 47/2003(2),
Having regard to Commission Regulation (EC) No 1961/2001 of 8 October 2001 on detailed rules for implementing Council Regulation (EC) No 2200/96 as regards export refunds on fruit and vegetables(3), as last amended by Regulation (EC) No 1176/2002(4), and in particular Article 6(6) thereof,
Whereas:
(1) Commission Regulation (EC) No 1061/2003(5) fixes the indicative quantities for which system B export licences may be issued.
(2) In the light of the information available to the Commission today, there is a risk that the indicative quantities laid down for the current export period for table grapes will shortly be exceeded. This overrun will prejudice the proper working of the export refund scheme in the fruit and vegetables sector.
(3) To avoid this situation, applications for system B licences for table grapes after 11 August 2003 should be rejected until the end of the current export period,
HAS ADOPTED THIS REGULATION:
Article 1
Applications for system B export licences for table grapes submitted pursuant to Article 1 of Regulation (EC) No 1061/2003, export declarations for which are accepted after 11 August 2003 and before 17 September 2003, are hereby rejected.
Article 2
This Regulation shall enter into force on 12 August 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 August 2003.
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COMMISSION DECISION
of 5 August 1999
providing for the release of the minimum stocks held by the sugar undertaking established in Greece in order to ensure supplies to its regions during the period 1 August to 30 September 1999
(notified under document number C(1999) 2585)
(Only the Greek text is authentic)
(1999/552/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector(1), as last amended by Regulation (EC) No 1148/98(2), and in particular Article 12(3) thereof,
(1) Whereas, in order to ensure normal supplies to the Community as a whole or to one of its areas, there is a standing obligation in the European territorites of the Community for minimum stocks to be maintained by each sugar-producing undertaking or sugar refinery;
(2) Whereas Article 1 of Council Regulation (EEC) No 1789/81 of 30 June 1981 laying down general rules concerning the system of minimum stocks in the sugar sector(3), as last amended by Regulation (EC) No 725/97(4), fixes the level of minimum stocks to be held, as the case may be, at 5 % of actual production within the A quota or 5 % of the quantity of sugar refined during the 12 months preceding the month in question;
(3) Whereas, under Article 12(1) of Regulation (EEC) No 1785/81, this percentage may be reduced; whereas Article 4 of Regulation (EEC) No 1789/81 lays down that, where the supplies of sugar required by the Community can no longer be ensured under normal conditions provision may be made for the undertaking concerned to be released, in whole or in part, from the obligation to stock the sugar in question; whereas this percentage has already been brought down to 3 % by Commission Regulation (EC) No 1436/96(5);
(4) Whereas the sugarbeet production regions of Greece have been affected by adverse weather conditions which have delayed the harvest in the new 1999/2000 marketing year; whereas a temporary deficit therefore exists in those regions for supplies during the carryover period of August and September 1999;
(5) Whereas in order to ensure supplies under normal conditions and in view of the urgency, the minimum stocks maintained by the sugar undertaking established in Greece should be released by reducing to zero the percentage applicable to that undertaking for the period pending the new production for the 1999/2000 marketing year;
(6) Whereas the Management Committee for Sugar has not delivered an opinion within the limit set by its Chairman,
HAS ADOPTED THIS DECISION:
Article 1
1. By derogation from Article 1(2) of Regulation (EC) No 1436/96, for the period 1 August to 30 September 1999 the percentages referred to in Article 1 of that Regulation are hereby reduced to 0 % for the sugar undertaking established in Greece.
2. From 1 October 1999, the percentages referred to in points (a) and (b) of Article 1 of Regulation (EEC) No 1789/81 are hereby reduced to 3 % for the sugar undertaking established in Greece.
Article 2
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 5 August 1999.
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COMMISSION DECISION
of 25 June 2007
on the compatibility with Community law of measures taken by Finland pursuant to Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities
(2007/481/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (1), and in particular Article 3a(2) thereof,
Having regard to the opinion of the Committee established pursuant to Article 23a of Directive 89/552/EEC,
Whereas:
(1)
By letter of 22 September 2006, received by the Commission on 2 October 2006, Finland notified to the Commission measures to be taken pursuant to Article 3a(1) of Directive 89/552/EEC.
(2)
The Commission verified, within a period of three months from this notification, that such measures are compatible with Community law, in particular as regards the proportionality of the measures and the transparency of the national consultation procedure.
(3)
In its examination, the Commission took into consideration the available data on the Finnish media landscape.
(4)
The list of events of major importance for society included in the Finnish measures was drawn up in a clear and transparent manner and a far-reaching consultation had been launched in Finland.
(5)
The Commission was satisfied that the events listed in the Finnish measures met at least two of the following criteria considered to be reliable indicators of the importance of events for society: (i) a special general resonance within the Member State and not simply a significance to those who ordinarily follow the sport or activity concerned; (ii) a generally recognised, distinct cultural importance for the population in the Member State, in particular as a catalyst of cultural identity; (iii) involvement of the national team in the event concerned in the context of a competition or tournament of international importance; and (iv) the fact that the event has traditionally been broadcast on free television and has commanded large television audiences.
(6)
A number of the events listed in the Finnish measures, including the summer and winter Olympic Games, the opening match, quarter-finals, semi-finals and final of the World Cup as well as the matches of the Finnish team in that tournament, fall within the category of events traditionally considered of major importance for society, as referred to explicitly in recital 18 of Directive 97/36/EC. These events have a special general resonance in Finland, as they are particularly popular with the general public, not just with those who usually follow sport events.
(7)
The men’s Ice Hockey World Championships, organised by the International Ice Hockey Federation (IIHF), have a special general resonance, as ice hockey is played actively by the Finnish people, and a generally recognised, distinct cultural importance for the Finnish population in view of the great success of the Finnish team in this international tournament. Because of their specific organisation, the Ice Hockey World Championships should be treated as a single event in which matches between other countries also affect the position of teams against which Finland must or may play and the overall result.
(8)
The Nordic World Ski Championships (cross-country skiing, ski jumping and Nordic combined), organised by the International Ski Federation (FIS), have a special general resonance and a generally recognised, distinct cultural importance for the Finnish population as a catalyst of cultural identity, as Nordic skiing enjoys the status of a national sport in Finland.
(9)
The listed athletics events, namely the World Championships in Athletics, organised by the International Association of Athletics Federations (IAAF), and the European Athletics Championships, organised by the European Athletics Association (EAA), have a generally recognised, distinct cultural importance for the Finnish population as a catalyst of cultural identity, as the top Finnish athletes representing Finland internationally in a wide range of individual disciplines are among the world elite in their specialities.
(10)
The listed events have traditionally been broadcast on free television and have commanded large television audiences.
(11)
The Finnish measures appear proportionate so as to justify a derogation from the fundamental EC Treaty freedom to provide services on the basis of an overriding reason of public interest, which is to ensure wide public access to broadcasts of events of major importance for society.
(12)
The Finnish measures are compatible with EC competition rules in that the definition of qualified broadcasters for the broadcasting of listed events relies on objective criteria that allow actual and potential competition for the acquisition of the rights to broadcast these events. In addition, the number of listed events is not disproportionate so as to distort competition on the downstream free television and pay-television markets.
(13)
The proportionality of the Finnish measures is reinforced by the fact that they have no retroactive effect and thus have no impact on the exercise of the broadcasting rights to listed events acquired before the date of their entry into force.
(14)
The Commission communicated the measures notified by Finland to the other Member States and presented the results of this verification at the meeting of the Committee established pursuant to Article 23a of Directive 89/552/EEC of 15 November 2006. The Committee adopted a favourable opinion at this meeting.
(15)
The Finnish measures were adopted on 22 February 2007 and entered into force on 1 March 2007,
HAS DECIDED AS FOLLOWS:
Article 1
The measures pursuant to Article 3a(1) of Directive 89/552/EEC notified by Finland to the Commission on 22 September 2006 are compatible with Community law.
Article 2
The measures, as finally taken by Finland and set out in the Annex to this Decision, shall be published in the Official Journal of the European Union in accordance with Article 3a(2) of Directive 89/552/EEC.
Done at Brussels, 25 June 2007.
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COMMISSION DECISION
of 4 April 2005
on simplified certificates for the importation of bovine semen and fresh pig meat from Canada and amending Decision 2004/639/EC
(notified under document number C(2005) 1002)
(Text with EEA relevance)
(2005/290/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 1999/201/EC of 14 December 1998 on the conclusion of the Agreement between the European Community and the Government of Canada on sanitary measures to protect public and animal health in respect of trade in live animals and animal products (1), and in particular Article 3 thereof,
Having regard to Council Directive 88/407/EEC of 14 June 1988 laying down the animal health requirements applicable to intra-Community trade in and imports of semen of domestic animals of the bovine species (2), in particular Articles 10(2) and 11(2) thereof,
Having regard to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine, ovine and caprine animals and swine, fresh meat or meat products from third countries (3), and in particular Articles 16(1) and 22(2) thereof,
Having regard to Council Directive 2002/99/EC of 16 December 2002 laying down the animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption (4), in particular Article 8(4) and 9(4) (b) thereof.
Whereas:
(1)
Annex V to the Agreement of 17 December 1998 between the European Community and the Government of Canada on sanitary measures to protect public and animal health in respect of trade in live animals and animal products (the Agreement) establishes the public health and animal health measures for imports into the Community of certain animals and products thereof for which equivalence should be recognised.
(2)
Annex VII to the Agreement provides for simplified official animal health and/or public health attestations to be included in the model health certificate for imports into the Community of live animals and animal products for which equivalence of measures (Yes-1) has been recognised.
(3)
Equivalence has been recognised for bovine semen with respect to animal health requirements on the basis of Directive 88/407/EEC, as amended by Directive 2003/43/EC (5), and therefore a simplified model certificate for bovine semen should be established.
(4)
It should be clarified that the use of the model animal health certificates laid down in Commission Decision 2004/639/EC of 6 September 2004 laying down the importation conditions of semen of domestic animals of the bovine species (6) is required without prejudice to specific certification requirements based on equivalence agreements between the Community and third countries. Decision 2004/639/EC should be amended accordingly.
(5)
Equivalence has been recognised with regard to public health requirements for pig meat but not for animal health requirements. Therefore the simplification based on equivalence of the model certificate for pig meat should only cover public health measures.
(6)
Council Directive 93/119/EC of 22 December 1993 on the protection of animals at the time of slaughter or killing (7) provides that the health certificates accompanying meat to be imported from a third country be supplemented by an attestation certifying that animals referred to in that Directive have been slaughtered under conditions which offer guarantees of humane treatment at least equivalent to those provided for in that Directive. That attestation should be included in the model certificate for fresh pig meat set out in this Decision.
(7)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
The Member States shall authorise the importation from Canada of semen of domestic animals of the bovine species conforming to the certification conditions laid down in the model certificate set out in Annex I, and accompanied by such a certificate duly completed and issued before departure of the consignment from Canada.
Article 2
The Member States shall authorise the importation from Canada of fresh meat of domestic swine conforming to the certification conditions laid down in the model certificate set out in Annex II, and accompanied by such a certificate duly completed and issued before departure of the consignment from Canada.
Article 3
In Article 1 of Decision 2004/639/EC, the following paragraph 4 is added:
‘4. The requirement laid down in paragraph 1 to use the model animal health certificate set out in Annex II, part 1 shall be without prejudice to specific certification requirements and model certificates adopted pursuant to agreements between the Community and third countries following a recognition of equivalence.’
Article 4
For a transitional period not exceeding 90 days from the date of application of this Decision, Member States shall authorise the importation from Canada of semen of domestic animals of the bovine species and fresh meat of domestic swine under model certificates applicable before the date of application of this Decision.
Article 5
This Decision is addressed to the Member States.
Done at Brussels, 4 April 2005.
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COUNCIL REGULATION (EEC) No 1530/82 of 25 May 1982 on the application of Decision No 5/81 of the EEC-Finland Joint Committee amending Protocols 1 and 2 to the Agreement between the European Economic Community and the said State
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 European Economic Community signed an Agreement with the Republic of Finland [1] on 5 October 1973 which entered into force on 1 January 1974,
[1] OJ No L 328, 28.11.1973, p. 2.
Whereas, pursuant to Article 12a of the above Agreement, the Joint Committee adopted Decision No 5/81 amending Protocols 1 and 2;
Whereas this Decision should be given effect in the Community,
HAS ADOPTED THIS REGULATION:
Article 1
For the purposes of application of the Agreement between the European Economic Community and the Republic of Finland, Decision No 5/81 of the Joint Committee shall apply in the Community.
The text of the Decision is attached to this Regulation.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply with effect from 1 January 1982.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 May 1982.
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COMMISSION DECISION of 30 April 1991 approving the German Programme of Agricultural Income Aid for full time arable farmers in Rheinland-Palatinate (91/259/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 768/89 of 21 March 1989 establishing a system of transitional aids to agricultural income (1) and in particular Article 7 (3) thereof,
Having regard to Commission Regulation (EEC) No 3813/89 of 19 December 1989 laying down detailed rules for the application of the system of transitional aids to agricultural income (2), as amended by Regulation (EEC) No 1279/90 (3), and in particular Article 10
(3) thereof;
Whereas on 27 November 1990 Germany notified the Commission of its intention to introduce a Programme of Agricultural Income Aid for full time arable in Rheinland-Palatinate; whereas additional information concerning this programme was received by the Commission from the German authorities on 25 February 1991 and on 19 April 1991;
Following the consultation of the Management Committee for Agricultural Income Aids on 15 April 1991 on the measures provided for in this Decision;
Following the consultation of the EAGGF Committee on 23 April 1991 on the maximum amounts that may be charged annually to the Community budget as a result of approving the programme,
HAS ADOPTED THIS DECISION: Article 1
The Programme of Agricultural Income Aid for full time arable farmers in Rheinland-Palatinate notified to the Commission by the German authorities on 27 November 1990 is hereby approved. Article 2
The maximum amounts that may be charged annually to the Community budget as a result of this Decision shall be as follows:
(Ecus)
1992 1 580 000 1993 1 300 000 1994 1 030 000 1995 750 000 1996 480 000
Article 3 This Decision is addressed to all the Member States. Done at Brussels, 30 April 1991.
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COMMISSION DECISION
of 18 September 2008
concerning the non-inclusion of triflumizole in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance
(notified under document number C(2008) 5075)
(Text with EEA relevance)
(2008/748/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (1), and in particular the fourth subparagraph of Article 8(2) thereof,
Whereas:
(1)
Article 8(2) of Directive 91/414/EEC provides that a Member State may, during a period of 12 years following the notification of that Directive, authorise the placing on the market of plant protection products containing active substances not listed in Annex I to that Directive that are already on the market two years after the date of notification, while those substances are gradually being examined within the framework of a programme of work.
(2)
Commission Regulations (EC) No 451/2000 (2) and (EC) No 1490/2002 (3) lay down the detailed rules for the implementation of the third stage of the programme of work referred to in Article 8(2) of Directive 91/414/EEC and establish a list of active substances to be assessed with a view to their possible inclusion in Annex I to Directive 91/414/EEC. That list includes triflumizole.
(3)
For triflumizole the effects on human health and the environment have been assessed in accordance with the provisions laid down in Regulations (EC) No 451/2000 and (EC) No 1490/2002 for a range of uses proposed by the notifier. Moreover, those Regulations designate the rapporteur Member States which have to submit the relevant assessment reports and recommendations to the European Food Safety Authority (EFSA) in accordance with Article 8(1) of Regulation (EC) No 451/2000. For triflumizole the rapporteur Member State was the Netherlands and all relevant information was submitted on 4 January 2006.
(4)
The Commission examined triflumizole in accordance with Article 11a of Regulation (EC) No 1490/2002. A draft review report for that substance was reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health and finalised on 20 May 2008 in the format of the Commission review report.
(5)
During the examination of this active substance by the Committee, taking into account comments from Member States, it was concluded that there are clear indications that it may be expected that it has harmful effects on human health and in particular the exposure of operator and worker is greater than 100 % of the AOEL.
(6)
The Commission invited the notifier to submit its comments on the results of the examination of triflumizole and on its intention or not to further support the substance. The notifier submitted its comments which have been carefully examined. However, despite the arguments put forwards by the notifier, the concerns identified could not be eliminated, and assessments made on the basis of the information submitted have not demonstrated that it may be expected that, under the proposed conditions of use, plant protection products containing triflumizole satisfy in general the requirements laid down in Article 5(1)(a) and (b) of Directive 91/414/EEC.
(7)
Triflumizole should therefore not be included in Annex I to Directive 91/414/EEC.
(8)
Measures should be taken to ensure that authorisations granted for plant protection products containing triflumizole are withdrawn within a fixed period of time and are not renewed and that no new authorisations for such products are granted.
(9)
Any period of grace granted by a Member State for the disposal, storage, placing on the market and use of existing stocks of plant protection products containing triflumizole should be limited to 12 months in order to allow existing stocks to be used in one further growing season, which ensures that plant protection products containing triflumizole remain available for 18 months from the adoption of this Decision.
(10)
This Decision does not prejudice the submission of an application for triflumizole in accordance with Article 6(2) of Directive 91/414/EEC and Commission Regulation (EC) No 33/2008 of 17 January 2008 laying down detailed rules for the application of Council Directive 91/414/EEC as regards a regular and an accelerated procedure for the assessment of active substances which were part of the programme of work referred to in Article 8(2) of that Directive but have not been included into its Annex I (4), in view of a possible inclusion in its Annex I.
(11)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Triflumizole shall not be included as an active substance in Annex I to Directive 91/414/EEC.
Article 2
Member States shall ensure that:
(a)
authorisations for plant protection products containing triflumizole are withdrawn by 18 March 2009;
(b)
no authorisations for plant protection products containing triflumizole are granted or renewed from the date of publication of this Decision.
Article 3
Any period of grace granted by Member States in accordance with the provisions of Article 4(6) of Directive 91/414/EEC, shall be as short as possible and shall expire on 18 March 2010 at the latest.
Article 4
This Decision is addressed to the Member States.
Done at Brussels, 18 September 2008.
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*****
COMMISSION REGULATION (EEC) No 1323/86
of 5 May 1986
amending Regulation (EEC) No 1351/72 on the recognition of producer groups for hops
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1696/7 of 26 July 1971 on the common organization of the market in hops (1), as last amended by Council Regulation (EEC) No 3800/85 of 31 December 1985 (2), and in particular Article 7 (5) thereof,
Whereas Council Regulation (EEC) No 3332/85 of 26 November 1985 amending Regulation (EEC) No 1696/71 on the common organization of the market in hops (3) amended Article 7 of the latter in such a way as to permit producer groups to use aid to take not only measures leading to a greater concentration of supply and greater market stability by marketing the entire production of their members but also measures by means of which production can be improved and adapted to the requirements of the market; whereas Commission Regulation (EEC) No 1351/72 (4), containing the rules for the application of the said Article 7 should be adapted accordingly;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Hops,
HAS ADOPTED THIS REGULATION:
Article 1
In Article 1 (1) (b) (cc) the following is inserted after the words 'market stabilization measures':
'as also for measures to improve and adapt production to market requirements'.
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, 5 May 1986.
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COMMISSION REGULATION (EC) No 1593/98 of 23 July 1998 amending Regulation (EEC) No 1764/86 as regards the minimum quality requirements for products processed from tomatoes under the production aid scheme
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2201/96 of 28 October 1996 on the common organisation of the markets in processed fruit and vegetable products (1), as last amended by Regulation (EC) No 2199/97 (2), and in particular Article 4(9) thereof,
Whereas Article 6 of Regulation (EC) No 2201/96 provides that the quantities produced in compliance with minimum prices are to be taken as the basis for sharing out the quota among processors, the Member States and the product groups; whereas quantities produced outside the quota at the minimum price during one marketing year are taken into account for setting the quota for the following marketing year; whereas, as a result, provisions should be made for finished products obtained from those quantities to be subject to the same minimum quality requirements as products obtained from the quantities subject to the quota eligible for production aid;
Whereas Article 7(2)(c) of Commission Regulation (EC) No 504/97 of 19 March 1997 laying down detailed rules for the application of Council Regulation (EC) No 2201/96 as regards the system of production aid for products processed from fruit and vegetables (3), as last amended by Regulation (EC) No 1590/98 (4), provides that quantities not covered by the quota for which the minimum price was paid must be indicated in processing contracts;
Whereas experience gained in the tomato processing sector indicates that certain minimum quality requirements must be tightened up in the case of tomato juice;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Products Processed from Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
Commission Regulation (EEC) No 1764/86 (5) is hereby amended as follows:
1. the title is replaced by the following:
'Commission Regulation (EEC) No 1764/86 of 27 May 1986 laying down minimum quality requirements for products processed from tomatoes under the production aid scheme`;
2. Article 1 is replaced by the following:
'Article 1
This Regulation lays down the minimum quality requirements which tomato-based products as defined in Article 1(2) of Commission Regulation (EC) No 504/97 (*) shall meet in the case of:
(a) products covered by the quota eligible for the production aid provided for in Article 2(1) of Regulation (EC) No 2201/96;
(b) tomato-based products not covered by the quota, supplied under the processing contracts referred to in Article 7(2) of Regulation (EC) No 504/97 and for which the minimum price is paid.
(*) OJ L 78, 20.3.1997, p. 14.`;
3. in Article 2, 'of Regulation (EEC) No 1599/84` is replaced by 'of Regulation (EC) No 504/97`;
4. in the second indent of Article 3, 'in Article 1 of Regulation (EEC) No 1599/84`, is replaced by 'in Article 1(2) of Regulation (EC) No 504/97`;
5. in Article 8, 'in Article 1(2)(n) and (o) of Regulation (EEC) No 1599/84` is replaced by 'in Article 1(2)(k) and (l) of Regulation (EC) No 504/97`;
6. Article 10(3)(a) is replaced by the following:
'(a) any extraneous plant materials can be established only by intensive examination by the naked eye. However, certain juice and concentrate preparations may contain skin and pips, within the maximum limits laid down in Article 1(2)(k) and (l) of Regulation (EC) No 504/97;`
7. the following point is added to Article 10(4):
'(f) a total lactic acid content not exceeding 1 % of the dry weight, reduced by any added common salt, in the case of tomato juice.`;
8. in Article 11, '(m) of Regulation (EEC) No 1599/84` is replaced by '(j) of Regulation (EC) No 504/97`.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 July 1998.
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Council Decision
of 27 September 2001
appointing a German member and a German alternate member of the Committee of the Regions
(2001/715/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 Council Decision of 26 January 1998 appointing the members and alternate members of the Committee of the Regions(1),
Whereas a seat as a member of the Committee of the Regions has become vacant following the resignation of Mr Edmund STOIBER, notified to the Council on 26 June 2001;
Whereas a seat as an alternate member is to become vacant following the appointment of Mr Reinhold BOCKLET to replace Mr Edmund STOIBER;
Having regard to the proposal from the German Government,
HAS DECIDED AS FOLLOWS:
Sole Article
(a) Mr Reinhold BOCKLET is hereby appointed a member of the Committee of the Regions to replace Mr Edmund STOIBER, and
(b) Mr Edmund STOIBER is hereby appointed an alternate member of the Committee of the Regions to replace Mr Reinhold BOCKLET,
for the remainder of their terms of office, which run until 25 January 2002.
Done at Brussels, 27 September 2001.
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COUNCIL REGULATION (EC) No 1251/1999
of 17 May 1999
establishing a support system for producers of certain arable crops
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 36 and 37 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 opinion of the Committee of the Regions(4),
Having regard to the opinion of the European Court of Auditors(5),
(1) Whereas the common agricultural policy aims to attain the objectives referred to in Article 33 of the Treaty, taking account of the market situation;
(2) Whereas, in order to ensure better market balance, a new scheme of support was introduced by Council Regulation (EEC) No 1765/92 of 30 June 1992 establishing a support system for producers of certain arable crops(6);
(3) Whereas, after the 1992 reform of the common agricultural policy, there has been a particular improvement of market balances;
(4) Whereas set-aside under the support system for producers of certain arable crops, introduced in 1992 in addition to a lowering of the intervention price, has helped to keep production under control, while increased price competitiveness has allowed significant additional cereals quantities to be used on the domestic market, mainly for animal feed;
(5) Whereas the support on the basis of the scheme introduced in 1992 should be continued, taking into account, however, market developments and experience acquired in applying the current scheme;
(6) Whereas Member States may, under certain conditions, make grass silage eligible for area payments under this regime;
(7) Whereas the reform of the support scheme has to take into account the international obligations of the Community;
(8) Whereas the best way to achieve market balance is to approximate the Community prices of cereals to the prices on the world market and to provide for non-crop specific area payments;
(9) Whereas area payments should be revised if the market conditions differ from those currently foreseen;
(10) Whereas the area eligible should be restricted to the area down to arable crops or publicly funded set aside in the past;
(11) Whereas, when the sum of the areas for which payment is claimed under the scheme is in excess of the base area, a reduction of the eligible area per farm should be provided for in order to ensure market balance;
(12) Whereas Member States may apply one or more national base areas; whereas it is considered appropriate that the Member States which choose this option should be able to divide each national base area into sub-base areas; whereas, when a national base area has been exceeded, the Member State concerned should be allowed to concentrate the application of the measures totally or partially on those areas for which the overshoot has been noted;
(13) Whereas area payments should reflect the specific structural characteristics that influence yield; whereas the drawing up of a regionalisation plan based on objective criteria should be left to the Member States; whereas uniform average yields should be established by the regionalisation plans; whereas these plans should be consistent with the average yields of each region achieved in a given period, taking into account any structural differences between production regions; whereas a specific procedure should be provided in order to examine these plans at Community level;
(14) Whereas differentiation of yields may be permitted for irrigated and non-irrigated areas provided that a separate base area for irrigated crops is established and there is no extension of the total base area;
(15) Whereas maize has a different yield which distinguishes it from other cereals and therefore may justify a separate treatment;
(16) Whereas, in order to calculate the area payment, a basic amount per tonne should be multiplied by the "average cereals yield" determined for the region concerned; whereas when different yields for maize and for other cereals are fixed, separate base areas for maize should be established;
(17) Whereas a single basic amount should be fixed for arable crops; whereas the basic amounts per tonne should be increased taking into account the reduction in several steps in the cereals intervention price; whereas a specific aid should be established for protein crops in order to preserve their competitiveness with cereals;
(18) Whereas in the case of a final reduction in intervention price the basic amount shall be increased applying the same compensation rate as that used in the 2000/2001 and 2001/2002 marketing years;
(19) Whereas a special scheme for durum wheat should be established to ensure a durum wheat production level which is sufficient to supply user industries while keeping budgetary expenditure in check; whereas that objective should be achieved by introducing a supplement limited, for each Member State concerned, to a maximum area of durum wheat; whereas any overshoot of those areas should lead to an adjustment to the applications submitted;
(20) Whereas, moreover, in some Member States, the production of durum wheat is well established in regions outside traditional zones; whereas it is desirable to safeguard a certain level of production in those regions by the grant of special aid;
(21) Whereas, in order to benefit from the area payments, producers should set aside a predetermined percentage of their arable area; whereas the land set aside should be cared for so as to meet certain minimum environmental standards; whereas the areas set aside should also be eligible for use for non-food purposes, provided effective control systems can be applied;
(22) Whereas in the current market situation, the set-aside requirement should be reduced to 10 % for the period 2000-2006; whereas this percentage should be re-examined to take account of production and market developments;
(23) Whereas the set-aside obligation should be subject to due compensation; whereas the compensation should be equivalent to the area payments for cereals;
(24) Whereas no set-aside requirement should be imposed for small producers whose claim for area payments is below a certain level, whereas this level should be fixed;
(25) Whereas for voluntary set-aside, producers may be granted set-aside payment for land additionally set-aside; whereas a maximum area limit should be fixed by Member States;
(26) Whereas area payments should be paid once a year for a given area; whereas areas not cultivated immediately before the entry into force of the scheme established by Regulation (EEC) No 1765/92 should not be eligible for payment; whereas to take account of certain specific situations, where this provision is unduly restrictive, certain derogations should be permitted to be managed by the Member States;
(27) Whereas it is necessary to determine certain conditions for applying for area payments and to specificy when producers should be paid;
(28) Whereas payment dates should be fixed in order to ensure an even distribution of arable crops sales during the marketing year;
(29) Whereas sowing dates should be adapted to natural conditions in the different production areas;
(30) Whereas it is necessary to provide for transitional rules in order to abolish crop specific payments for oilseeds from the 2002/2003 marketing year onwards; whereas some of the existing provisions in this sector have to be maintained taking into account the international obligations of the Community;
(31) Whereas expenditure incurred by the Member States as a result of the obligations arising out of the application of this Regulation should be financed by the Community in accordance with Articles 1 and 2 of Council Regulation (EC) No 1258/99 of 17 May 1999 on the financing of the common agricultural policy(7);
(32) Whereas it is necessary to provide for transitional measures and to enable the Commission to adopt, if necessary, additional transitional measures;
(33) Whereas the adaptations to the arable crops support system should be introduced as from the marketing year 2000/2001;
(34) Whereas, in view of the present adaptations to the current support scheme and to previous modifications, it is appropriate, for reasons of clarity, to replace Regulation (EEC) No 1765/92 by a new Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
1. This Regulation hereby establishes a system of area payments for producers of arable crops.
2. For the purposes of this Regulation:
- the marketing year shall run from 1 July to 30 June,
- "arable crops" are taken to mean those listed in Annex I.
3. Member States where maize is not a traditional crop may make grass silage eligible for the arable crops area payments, under the same conditions as those applicable for arable crops.
CHAPTER I
Article 2
1. Community producers of arable crops may apply for an area payment under the conditions set out in this Regulation.
2. The area payment shall be fixed on a per hectare basis and regionally differentiated.
The area payment shall be granted for the area which is down to arable crops or subject to set-aside in accordance with Article 6 and which does not exceed a regional base area. This is established as the average number of hectares within a region down to arable crops or, where appropriate, fallow in conformity with a publicly funded scheme during 1989, 1990 and 1991. A region in this sense shall be understood to mean a Member State or a region within the Member State, at the option of the Member State concerned.
3. Producers applying for the area payment shall be subject to an obligation to set aside part of the land of their holding from production and shall receive compensation for this obligation.
4. When the sum of the areas for which payment is claimed under the arable crops' scheme, including the set-aside provided for under that scheme, is in excess of the base area, the eligible area per farmer shall be reduced proportionately for all the payments granted under this Regulation in the region in question, during the same marketing year.
Areas which are not the subject of an application for payment under this Regulation but are used to support an application for aid under Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal(8) shall also be taken into account for the calculation of areas for which payment is claimed.
5. If a Member State makes grass silage eligible for the arable crops area payments, a separate base area shall be defined. If the base area for arable crops or grass silage is not reached in a given marketing year, the balance of hectares shall be allocated for the same marketing year to the corresponding base area.
6. Where a Member State has chosen to establish one or more national base areas, it may subdivide each national base area into sub-base areas according to objective criteria to be defined by the Member State.
For the purposes of applying this paragraph, the "Secano" and "Regadío" base areas shall be considered as national base areas.
Where there is an overshoot of a national base area, the Member State concerned may, in accordance with objective criteria, concentrate the measure applicable under paragraph 4 totally or partially on the sub-base areas for which the overshoot has been noted.
Member States which have decided to apply the possibilities provided for in this paragraph, shall notify producers and the Commission by 15 September of their choices and the detailed rules for their application.
Article 3
1. For the purpose of setting average yields to be used for calculation of the area payment, each Member State shall establish a regionalisation plan setting out the relevant objective criteria for determination of the separate production regions in order to arrive at distinct homogeneous areas.
With this in mind, Member States shall take due account of specific situations in drawing up their regionalisation plans. They may in particular adjust average yields in line with any structural differences between production regions.
2. Member States may also apply a different yield figure for maize than for other cereals in their regionalisation plans.
(a) Where the yield for maize is higher than for other cereals, a base area, as referred to in Article 2(2), shall be established separately for maize, covering one or more maize production regions, at the choice of the Member State.
Member States may also, in the regions in question, establish separate base areas for arable crops other than maize. In such cases, if the base area for maize is not reached in a given marketing year, the balance of hectares shall be allocated for the same marketing year to the corresponding base area for arable crops other than maize.
(b) Where the yield for maize is equal to or less than that for other cereals, a base area may also be established separately for maize in accordance with point (a). In such cases and if the Member States chooses to establish a base area for "arable crops other than maize":
- if the base area for "maize" is not reached in a given marketing year, the balance of hectares shall be allocated for the same marketing year to the corresponding base areas for other crops,
- if the base area for "arable crops other than maize" is not reached in a given marketing year, the balance of hectares shall be allocated for the same marketing year to the base area for "maize" concerned.
Should these base areas be exceeded, Article 2(4) shall apply.
3. Member States may in their regionalisation plans set different yields for irrigated and non-irrigated land. In that case, Member States shall establish a separate base area for areas bearing irrigated crops.
The irrigated base area shall be equal to the average area irrigated from 1989 to 1991 with a view to harvesting arable crops including the increases made pursuant to Article 3(1), fourth subparagraph, last sentence of Regulation (EEC) No 1765/92. However, the irrigated base area in Portugal shall be progressively increased by up to 60000 ha, for those areas where it has been established that investment in irrigation began after 1 August 1992. This increase may be added partially or totally to the irrigated maize base area as referred to in Article 3(2).
The establishment of the irrigated base area must not lead to any increase in the total base area of the Member State concerned. Should the irrigated base area be exceeded, Article 2(4) shall apply.
If the irrigated base area is not reached in a given marketing year, the balance of hectares shall be allocated for the same marketing year to the corresponding non-irrigated base area.
4. The regionalisation plan shall in all cases ensure that the average yield of the Member State concerned established for the period and in accordance with the criteria referred to in paragraph 5 is respected.
5. For each production region, the Member State shall give details of the areas and yields of arable crops produced in that region during the five-year period 1986/1987 to 1990/1991. Average cereals yields shall be separately calculated for each region by excluding the year with the highest and the year with the lowest yield during that period.
However, this obligation may be fulfilled in the case of:
- Portuguese cereals by providing data having been supplied pursuant to Council Regulation (EEC) No 3653/90 of 11 December 1990 introducing transitional measures governing the common organisation of the market in cereals and rice in Portugal(9),
- the five new German Länder by providing the average crop yield applicable in the other German Länder,
- Italy and Spain by fixing the reference yield at 3,9 tonnes/hectare and 2,9 tonnes/hectare respectively.
If a Member State decides to treat:
- maize separately from other cereals, the average cereals yield, which shall not be altered, shall be broken down between maize and other cereals,
- irrigated land separately from non-irrigated land, the corresponding average yield, which shall not be altered, shall be broken down between the two types.
6. Member States shall submit their regionalisation plan to the Commission by 1 August 1999 together with all necessary supporting information. In order to fulfil this obligation, they may refer to their regionalisation plan submitted to the Commission in accordance with Regulation (EEC) No 1765/92.
The Commission shall examine the regionalisation plans submitted by the Member States and shall ensure that each plan is based on appropriate, objective criteria and is consistent with available historical information. The Commission may object to plans that are not compatible with the aforementioned relevant criteria in particular with the average yield of the Member State. In this case the plans shall be subject to adjustment by the Member State concerned after consultation with the Commission.
The regionalisation plan may be revised by the Member State concerned at the request of the Commission or at the initiative of that Member State in accordance with the same procedure as outlined in this Article.
7. Should a Member State, pursuant to paragraph 1, choose to establish production regions the demarcation of which does not correspond to that of regional base areas, it shall send the Commission a summary statement of payment applications and the yields pertaining to these. If it emerges from this information that, in a Member State, the average yield resulting from the regionalisation plan applied in 1993 or, in the case of Austria, Finland and Sweden, the average yield resulting from the plan applied in 1995 or, in the case of Italy and Spain the yield as fixed in Article 3(5) is exceeded, all payments to be made in that Member State for the following marketing year shall be reduced in proportion to the overrun which has been recorded. However, this provision shall not apply where the quantity for which applications were made, expressed in tonnes of cereals, does not exceed that resulting from the product of the total base areas of the Member State by the aforementioned average yield.
Member States may decide to ascertain whether there has been any exceeding of the average yield for each base area. In such cases, the provisions of this paragraph shall be applied to the payments to be paid in each base area concerned.
Article 4
1. Without prejudice to Article 10, the area payment shall be calculated by multiplying the basic amount per tonne by the average cereal yield determined in the regionalisation plan for the region concerned.
2. The calculation mentioned in paragraph 1 shall be made using the average cereals yield. However, where maize is treated separately, the "maize" yield shall be used for maize and the "cereals other than maize" yield shall be used for cereals, oilseeds and linseed.
3. The basic amount shall be fixed as follows:
for protein crops:
- EUR 72,50/t from the 2000/2001 marketing year onwards;
for cereals, grass silage and set-aside:
- EUR 58,67/t for the 2000/2001 marketing year,
- EUR 63,00/t from the 2001/2002 marketing year onwards;
for linseed:
- EUR 88,26/t for the 2000/2001 marketing year,
- EUR 75,63/t for the 2001/2002 marketing year,
- EUR 63,00/t from the 2002/2003 marketing year onwards;
for oilseeds:
- EUR 63,00/t from the 2002/2003 marketing year onwards.
The amount of EUR 63/t may be increased from the 2002/2003 marketing year onwards in the light of a final reduction in the intervention price for cereals provided for in Article 3(4) of Regulation (EEC) No 1766/92.
This increase in area payments will bear the same proportion to the intervention price reduction as that applicable in 2000/2001 and 2001/2002.
4. In Finland and in Sweden north of the 62nd Parallel and some adjacent areas affected by comparable climatic conditions rendering agricultural activity particularly difficult a supplementary amount to the area payment of EUR 19/t, multiplied by the yield utilised for the area payments, shall be applied for cereals and oilseeds.
Article 5
A supplement to the area payment of EUR 344,50 per hectare shall be paid for the area down to durum wheat in the traditional production zones listed in Annex II, subject to the limits fixed in Annex III.
Should the total of the areas for which a supplement to the area payment is claimed be greater than the limit referred to above during the course of a marketing year, the area per producer for which the supplement may be paid shall be reduced proportionately.
However, subject to the limits per Member State laid down in Annex III, Member States may distribute the areas indicated in that Annex among the production zones as defined in Annex II, or, if necessary, the production regions referred to in Article 3, according to the extent of the production of durum wheat during the period 1993 to 1997. Where this is done, should the total of the areas within a region for which a supplement to the area payment is requested be greater than the corresponding regional limit during the course of a marketing year, the area per producer in that production region for which the supplement may be paid shall be reduced proportionately. The reduction shall be made when, within a Member State, the areas in regions, which have not reached their regional limits, have been distributed to regions in which those limits have been exceeded.
In regions where the production of durum wheat is well established, other than those referred to in Annex II, special aid amounting to EUR 138,90 per hectare shall be granted up to a limit of the number of hectares laid down in Annex IV.
Article 6
1. The set-aside obligation for each producer applying for area payments shall be fixed as a proportion of his area down to arable crops and for which a claim is made and left in set-aside pursuant to this Regulation.
The basic rate of compulsory set-aside is fixed at 10 % from the 2000/2001 marketing year up to the 2006/2007 marketing year.
2. Member States shall apply appropriate environmental measures which correspond to the specific situation of the land set-aside.
3. The land set-aside may be used for the provision of materials for the manufacture within the Community of products not primarily intended for human or animal consumption, provided that effective control systems are applied.
Member States shall be authorised to pay national aid up to 50 % of the costs associated with establishing multiannual crops intended for bio-mass production on set-aside land.
4. Where different yields are set for irrigated and non-irrigated land, the payment for set-aside for non-irrigated land apply. In the case of Portugal, payment shall take account of the aid granted under Regulation (EEC) No 3653/90.
5. Producers may be granted the set-aside payment on land voluntarily set aside in excess of their obligation. Member States shall allow farmers to set-aside up to at least 10 % of the area down to arable crops and for which a payment application is made, and left in set-aside pursuant to this Regulation. Higher percentages may be set by a Member State taking into account specific situations and ensuring sufficient occupation of farmland.
6. The set-aside payment may be granted on a multiannual basis for a period up to five years.
7. Producers who make a payment application for an area no bigger than the area which would be needed to produce 92 tonnes of cereals, on the basis of the yields determined for their region, are not bound by the set-aside obligation. Paragraphs 5 and 6 shall apply to these producers.
8. Without prejudice to Article 7, areas:
- set aside pursuant to agri-environment (Articles 22 to 24 of Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) and amending certain Regulations(10), which are neither put to any agricultural use nor used for any lucrative purposes other than those accepted for other land set aside under this Regulation, or
- afforested pursuant to afforestation (Article 31 of Regulation (EC) No 1257/1999,
as a result of an application made after 28 June 1995, may, up to any limit per holding which may be set by the Member State concerned, be counted as being set aside for the purposes of the set-aside requirement indicated in paragraph 1. Such limit shall be set only to the extent necessary to avoid a disproportionate amount of the available budget relating to the scheme in question being concentrated on a small number of farms.
However, on these areas, the area payment specified in Article 4 shall not be granted and the support granted under Article 24(1), or Article 31(1), second indent of Regulation (EC) No 1257/1999 (rural development regulation) shall be limited to an amount equal at most to the area payment for set aside specified in Article 4(3).
Member States may decide not to apply the scheme provided for in this paragraph to a new applicant in any region in which there is a continuing risk of a significant overshoot of the regional base area.
Article 7
Applications for payments may not be made in respect of land that on 31 December 1991 was under permanent pasture, permanent crops or trees or was used for non-agricultural purposes.
Member States may, on terms to be determined, depart from these provisions under certain specific circumstances, in particular for areas subject to restructuring programmes or for areas subject to standard rotations of multiannual arable crops with those crops listed in Annex I. In such cases, they shall take action to prevent any significant increase in the total eligible agricultural area. This may in particular involve deeming previously eligible areas ineligible as an offsetting measure.
Member States may also depart from the provisions of the first subparagraph under certain specific circumstances relating to one or other form of public intervention where such intervention results in a farmer growing crops on land previously regarded as ineligible in order to continue his normal agricultural activity and the intervention in question means that land originally eligible ceases to be so with the result that the total amount of eligible land is not increased significantly.
Moreover, Member States may, in certain cases not covered by the previous two subparagraphs, depart from the first subparagraph if they provide proof in a plan submitted to the Commission that the total amount of eligible land remains unchanged.
Article 8
1. Payments shall be made between 16 November and 31 January following the harvest. However, where Article 6(3) applies, area payments for the land set aside shall be paid between 16 November and 31 March.
2. In order to qualify for the area payment, a producer shall by 31 May at the latest preceding the relevant harvest have sown the seed and by 15 May at the latest have lodged an application.
3. Member States shall take the necessary measures to remind applicants of the need to respect environmental legislation.
Article 9
Detailed rules for the application of this Chapter shall be adopted in accordance with the procedure laid down in Article 23 of Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals(11) and in particular:
- those relating to the establishment and management of base areas,
- those relating to the establishment of production regionalisation plans,
- those relating to grass silage,
- those relating to the granting of the area payment,
- those relating to the minimum area eligible for payment; such rules shall take particular account of the monitoring requirements and of the desired effectiveness of the scheme in question,
- those determining, for durum wheat, the eligibility for the supplement to the area payment referred to in Article 5 and the eligibility requirements for the special aid referred to in that Article, and in particular determination of the regions to be taken into consideration,
- those relating to set-aside, in particular those relating to Article 6(3); these conditions may include the growing of products without compensation,
- those relating to the conditions for applying Article 7; these conditions shall specify under what circumstances the provisions of Article 7 may be waived and Member States' obligation to refer envisaged action to the Commission for approval,
- those relating to compliance with the Memorandum of Understanding on certain oil seeds between the European Economic Community and the United States of America within the framework of the GATT approved by Decision 93/355/EEC(12).
According to the same procedure, the Commission may:
- either make the granting of payments subject to the use of specific seeds, certified seeds in the case of durum wheat, certain varieties in the cases of oilseeds, durum wheat and linseeds or provide for the possibility for Member States to make the granting of payments subject to such conditions,
- allow the dates in Article 8(2) to be varied in certain zones where exceptional climatic conditions render the normal dates inapplicable,
- allow Member States, subject to the budgetary situation, to authorise, by way of derogation from Article 8(1), payments prior to 16 November in certain regions, of up to 50 % of the area payments and of the payment for set-aside in years in which exceptional climatic conditions have so reduced yields that producers face severe financial difficulties.
CHAPTER II
Article 10
1. For the 2000/2001 and 2001/2002 marketing years the area payments for oilseeds are calculated by multiplying the following amounts by the average cereals yield determined in the regionalisation plan in the region concerned:
- EUR 81,74/t for the 2000/2001 marketing year,
- EUR 72,37/t for the 2001/2002 marketing year.
However, Member States shall have the possibility of continuing to fix the oilseeds payments on the basis of historical regional oilseeds yield. In that case the yield shall be multiplied by 1,95.
2. For the 2000/2001 and 2001/2002 marketing years, a maximum guaranteed area (MGA) shall be established for the crop-specific oilseeds area payments of 5482000 hectares, reduced by the rate of compulsory set-aside applicable for that marketing year, or by 10 % if that rate is less than 10 %. If after the application of Article 2 the maximum guaranteed area is exceeded, the Commission shall reduce the amounts referred to in paragraph 1, in accordance with the provisions of paragraphs 3 and 4.
3. If the area of oilseeds already determined as eligible for crop specific oilseeds area payments in any year exceeds the MGAs, the Commission shall reduce, by 1 % for each percentage point by which the MGA is exceeded, the basic amount for that year. If the MGA is exceeded by more than a threshold percentage, special rules shall apply. Up to the threshold percentage, the reduction of the amount shall be uniform in all Member States. Beyond the threshold percentage, appropriate additional reductions shall apply in those Member States that have exceeded the national reference areas set out in Annex V, reduced by the rate referred to in paragraph 4. However, in the case of Germany the appropriate additional reduction may be adjusted at its request, in whole or in part, according to the regional base area; where this option is exercised, Germany shall immediately send the Commission the data used to calculate the reductions to be applied.
The Commission shall, in accordance with the procedure laid down in Article 23 of Regulation (EEC) No 1766/92, establish the size and distribution of the appropriate reductions to be applied and shall, in particular, ensure that the weighted average reduction for the Community as a whole is equal to the percentage by which the MGA has been exceeded.
4. The threshold percentage provided for in paragraph 3 should be 0 %.
5. If the oilseeds area payment is reduced in accordance with the provisions in paragraphs 3 and 4, the Commission shall reduce the relevant basic amounts for the following marketing year by the same percentage unless the MGA is not exceeded in that year, in which case the commission may determine that such a reduction shall not apply.
6. If the MGA for the Community is exceeded in 2000/2001 marketing year, the percentage of reduction of the regional reference amounts applied for the 1999/2000 marketing year shall be applied by the Commission to the relevant basic amount for the 2000/2001 marketing year by the same percentage.
7. Notwithstanding the provisions in this Article, Member States in which there is a significant risk of the National Reference Area set out in Annex V being substantially exceeded in the following marketing year may limit the area for which an individual producer may receive the oilseed area payments referred to in this article. Such limit shall be calculated as a percentage of the arable land area, of either the Member State or the regional base area, that is eligible for the area payments provided for in this Regulation and shall be applied to the eligible arable area of the producer. This limit may be differentiated between regional base areas or sub-base areas on the basis of objective criteria. Member States shall announce such limit, at the latest, by 1 August of the marketing year prior to that in respect of which the area payment is requested, or by an earlier date in the case of a Member State, or regions within a Member State, where plantings for the marketing year concerned take place prior to 1 August.
8. The reduction resulting from the overshoot of the MGA, applied in accordance with the provisions of this Article, cannot lead to an amount less than:
- EUR 58,67/t for the 2000/2001 marketing year,
- EUR 63,00/t for the 2001/2002 marketing year.
9. Producers of confectionery sunflower seed, sown for harvest, shall be excluded from the benefit of the support provided for under the terms of this article.
10. Within two years from the application of the present article the Commission will submit a report to the Council on the development on the oilseeds market. If necessary this report will be accompanied by appropriate proposals should the production potential deteriorate seriously.
Article 11
The amounts of the area payments and the payment for set-aside as well as the percentage area to be set aside fixed in this Regulation may be changed in the light of developments in production, productivity and the markets, according to the procedure laid down in Article 37(2) of the Treaty.
Article 12
Should specific measures be necessary to facilitate the transition from the system in force to that established by this Regulation, such measures shall be adopted in accordance with the procedure laid down in Article 23 of Regulation (EEC) No 1766/92.
Article 13
The measures defined in this Regulation shall be deemed to be intervention intended to stabilise agricultural markets within the meaning of Article 1(2)(b) of Council Regulation (EC) No 1258/1999.
Article 14
Regulation (EEC) No 1765/92 and Regulation (EEC) No 1872/94 are hereby repealed.
Article 15
1. This Regulation shall enter into force seven days after its publication in the Official Journal of the European Communities.
2. This Regulation shall apply from the 2000/2001 marketing year onwards.
3. Regulation (EEC) No 1765/92 and Regulation (EEC) No 1872/94 shall continue to be applied in relation to the 1998/1999 and 1999/2000 marketing years.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 May 1999.
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COMMISSION REGULATION (EC) No 533/2009
of 18 June 2009
fixing the rates of the refunds applicable to milk and milk 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 (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (single CMO Regulation) (1), and in particular Article 164(2) thereof,
Whereas:
(1)
Article 162(1)b of Regulation (EC) No 1234/2007 provides that the difference between prices in international trade for the products referred to in Article 1(1)(p) and listed in Part XVI of Annex I to that Regulation and prices within the Community may be covered by an export refund where these goods are exported in the form of goods listed in Part IV of Annex XX to that Regulation.
(2)
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 (2), specifies the products for which a rate of refund is to be fixed, to be applied where these products are exported in the form of goods listed in Part IV of Annex XX to Regulation (EC) No 1234/2007.
(3)
In accordance with the second paragraph, subparagraph (a) of Article 14 of Regulation (EC) No 1043/2005, the rate of the refund per 100 kilograms for each of the basic products in question is to be fixed for a period of the same duration as that for which refunds are fixed for the same products exported unprocessed.
(4)
Article 11 of the Agreement on Agriculture concluded under the Uruguay Round lays down that the export refund for a product contained in a good may not exceed the refund applicable to that product when exported without further processing.
(5)
However, in the case of certain milk products exported in the form of goods not covered by Annex I to the Treaty, there is a danger that, if high refund rates are fixed in advance, the commitments entered into in relation to those refunds may be jeopardised. In order to avert that danger, it is therefore necessary to take appropriate precautionary measures, but without precluding the conclusion of long-term contracts. The fixing of specific refund rates for the advance fixing of refunds in respect of those products should enable those two objectives to be met.
(6)
Article 15(2) of Regulation (EC) No 1043/2005 provides that, when the rate of the refund is being fixed, account is to be taken, where appropriate, of production refunds, aids or other measures having equivalent effect applicable in all Member States in accordance with the Regulation on the common organisation of the agricultural markets to the basic products listed in Annex I to Regulation (EC) No 1043/2005 or to assimilated products.
(7)
Article 100(1) of Regulation (EC) No 1234/2007 provides for the payment of aid for Community-produced skimmed milk processed into casein if such milk and the casein manufactured from it fulfil certain conditions.
(8)
Commission Regulation (EC) No 1898/2005 of 9 November 2005 laying down detailed rules for implementing Council Regulation (EC) No 1255/1999 as regards measures for the disposal of cream, butter and concentrated butter (3), lays down that butter and cream at reduced prices should be made available to industries which manufacture certain goods.
(9)
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
The rates of the refunds applicable to the basic products listed in Annex I to Regulation (EC) No 1043/2005 and in Part XVI of Annex I to Regulation (EC) No 1234/2007, and exported in the form of goods listed in Part IV of Annex XX to Regulation (EC) No 1234/2007, shall be fixed as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 19 June 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 June 2009.
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Council Regulation (EC) No 2448/2000
of 7 November 2000
opening and providing for the administration of autonomous Community tariff quotas for certain fishery products
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 26 thereof,
Having regard to the proposal from the Commission,
Whereas:
(1) Community supplies of certain fishery products currently depend on imports from third countries. It is in the Community's interest to suspend in part or in whole the customs duties for the products in question, within Community tariff quotas of an appropriate volume. In order not to jeopardise the development prospects of this production in the Community and to ensure an adequate supply to satisfy user industries, it is advisable to open those quotas, applying customs duties varied accordingly to sensitivity of the different products on the Community market.
(2) It is necessary, in particular, to ensure for all Community importers equal and uninterrupted access to the said quotas and to ensure the uninterrupted application of the rates laid down for the quotas to all imports of the products concerned into all Member States until the quotas have been used up.
(3) The decision for the opening of autonomous tariff quotas should be taken by the Community. To ensure the efficiency of a common administration of these quotas, there is no reasonable obstacle to authorising the Member States to draw from the quota-volumes the necessary quantities corresponding to actual imports. However, this method of administration requires close cooperation between the Member States and the Commission and the latter must in particular be able to monitor the rate at which the quotas are used up and inform the Member States accordingly.
(4) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code(1), has codified the management rules for tariff quotas designed to be used following the chronological order of dates of customs declarations.
(5) Examination of the situation as regards supplies of tropical shrimps and prawns from South and Central America (shrimp and prawns of the genus Penaeus, except the species Penaeus monodon and Penaeus japonicus) to the Community market has shown that, mainly due to the "white spot syndrome" affecting the species, the user industries are temporarily no longer receiving sufficient supplies. An autonomous tariff quota for a limited quantity and of limited duration should therefore be opened,
HAS ADOPTED THIS REGULATION:
Article 1
1. The import duties on the goods listed in the Annex shall be suspended at the indicated duty rate for the periods considered and in the amounts indicated therein.
2. Imports of the products in question shall not be covered by the quotas referred to in paragraph 1 unless the free-at-frontier price, which is determined by the Member States in accordance with Article 22 of Council Regulation (EEC) No 3759/92 of 17 December 1992 on the common organisation of the market in fishery and aquaculture products(2), is at least equal to the reference price fixed, or to be frixed, by the Community for the products under consideration of the categories of the products concerned.
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
The Member States and the Commission shall co-operate closely to ensure that this Regulation is complied with.
Article 4
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 1 November 2000.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 November 2000.
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Commission Decision
of 30 May 2002
concerning the technical specification for interoperability relating to the infrastructure subsystem of the trans-European high-speed rail system referred to in Article 6(1) of Council Directive 96/48/EC
(notified under document number C(2002) 1948)
(Text with EEA relevance)
(2002/732/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 infrastructure 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 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 into 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 an infrastructure register is published and updated each year. This register will set out the main characteristics of the national infrastructure (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 "infrastructure" 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 infrastructure of the trans-European high-speed rail system as defined in Annex I of 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 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 the Commission Recommendation 2001/290/EC(3) on the basic parameters of the trans-European high-speed rail system no longer have 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 5
This Decision is addressed to the Member States.
Done at Brussels, 30 May 2002.
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Commission Decision
of 30 November 2000
amending for the second time Decision 2000/284/EC establishing the list of approved semen collection centres for imports of equine semen from third countries
(notified under document number C(2000) 3605)
(2000/790/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 92/65/EEC of 13 July 1992, laying down animal health requirements governing trade in and imports into the Community of animals, semen, ova and embryos not subjected to animal health requirements laid down in specific Community rules referred to in Annex A(I) to Directive 90/425/EEC(1), as last amended by Commission Decision 95/176/EC(2), and in particular Article 17(3)(b) thereof,
Whereas:
(1) Commission Decision 2000/284/EC of 31 March 2000 established the list of approved semen collection centres for imports of equine semen from third countries(3), as last amended by Decision 2000/444/EC(4).
(2) The competent authorities of the United States of America officially informed the Commission of the approval in accordance with the provisions of Directive 92/65/EEC of respectively 13 additional equine semen collection centres. In addition the authorities of the United States of America corrected certain details of the one collection centre included in the Annex to Decision 2000/284/EC.
(3) It is appropriate to amend the list in the light of new information received from the third country concerned, and to highlight the amendments in the Annex for clarity.
(4) The measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
The Annex to Decision 2000/284/EC is replaced by the Annex to this Decision.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 30 November 2000.
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*****
COMMISSION REGULATION (EEC) No 2543/90
of 31 August 1990
reintroducing the levying of the customs duties applicable to men's or boys' shirts, other than knitted or crocheted, products of category No 8 (order No 40.0080), terry towelling and similar woven terry fabrics of cotton, products of category No 9 (order No 40.0090), men's or boys' jackets excluding waister jackets and blazers, other than knitted or crocheted, products of category No 17 (order No 40.0170), women's or girls' dresses, products of category No 26 (order No 40.0260), table linen, toilet and kitchen products of category No 39 (order No 40.0390) originating in India, to which the preferential tariff arrangements of Council Regulation (EEC) No 3897/89 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3897/89 of 18 December 1989 applying generalized tariff preferences for 1990 in respect of textile products originating in developing countries (1), and in particular Article 12 thereof,
Whereas pursuant to Article 10 of that Regulation, preferential tariff treatment shall be accorded for each category of products subjected in Annexes I and II to individual ceilings within the limits of the quantities specified in column 8 of its Annex I and column 7 of its Annex II, in respect of certain or each of the countries or territories of origin specified in column 5 of the same Annexes; whereas Article 11 of that Regulation provides that the levying of customs duties may be reintroduced at any time in respect of imports of the products in question as soon as the relevant individual ceilings are reached at Community level;
Whereas, in respect of men's or boys' shirts, other than knitted or crocheted, products of category No 8 (order No 40.0080), terry towelling and similar woven terry fabrics of cotton, products of category No 9 (order No 40.0090), men's or boys' jackets excluding waister jackets and blazers, other than knitted or crcoheted, products of category No 17 (order No 40.0170), women's and girls' dresses, products of category No 26 (order No 40.0260), table linen, toilet and kitchen linen, products of category No 39 (order No 40.0390), originating in India the relevant ceiling amounts respectively to 1 826 000 pieces, 125 tonnes, 77 000, 376 000 pieces and 96 tonnes; whereas that ceiling was reached on 1 August 1990 by charges of imports into the Community of the products in question originating in India, a country covered by preferential tariff arrangements, reached and were charged against that ceiling;
Whereas it is appropriate to reintroduce the levying of customs duties for the products in question with regard to India,
HAS ADOPTED THIS REGULATION:
Article 1
As from 4 September 1990 the levying of customs duties, suspended pursuant to Council Regulation (EEC) No 3897/89, shall be reintroduced on imports into the Community of the following products, originating in India:
1.2.3.4 // // // // // Order No // Category (unit) // CN code // Description // // // // // // // // // 40.0080 // 8 (1 000 pieces) // 6205 10 00 6205 20 00 6205 30 00 // Men's or boys' shirts, other than knitted or crocheted, of wool, cotton or man-made fibres // 40.0090 // 9 (tonnes) // 5802 11 00 5802 19 00 ex 6302 60 00 // Terry towelling and similar woven terry fabrics of cotton; toilet linen and kitchen linen, of terry towelling and similar woven terry fabrics, of cotton, other than knitted or crocheted // 40.0170 // 17 (1 000 pieces) // 6203 31 00 6203 32 90 6203 33 90 6203 39 19 // Men's or boys' jackets excluding waister jackets and blazers, other than knitted or crocheted, of wool, of cotton or
(1) OJ No L 383, 30. 12. 1989, p. 45.
// // // // // Order No // Category (unit) // CN code // Description // // // // // // 40.0260 // 26 (1 000 pieces) // 6104 41 00 6104 42 00 6104 43 00 6104 44 00 6204 41 00 6204 42 00 6204 43 00 6204 44 00 // Women's or girls' dresses, of wool, of cotton or man-made fibres // 40.0390 // 39 (tonnes) // 6302 51 10 6302 51 90 6302 53 90 ex 6302 59 00 6302 91 10 6302 91 90 6302 93 90 ex 6302 99 00 // Table linen, toilet and kitchen linen, other than knitted or crocheted, other than of terry towelling or similar terry fabrics of cotton // // // //
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, 31 August 1990.
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REGULATION (EEC) No 1375/75 OF THE COMMISSION of 29 May 1975 on the provisions of recognition of producer groups for hops in Ireland
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community;
Having regard to Council Regulation (EEC) No 1696/71 (1) of 26 July 1971 on the common organization of the market in hops, as amended by the Act (2) concerning the conditions of accession and the adjustments to the Treaties, and in particular Article 7 (5) thereof;
Whereas Commission Regulation (EEC) No 1351/72 (3) of 28 June 1972 on the recognition of producer groups for hops, provides in Article 2 (1) that for purposes of recognition a producer group must consist of at least seven producers;
Whereas since the entry into force of this Regulation Community rules on agriculture have become applicable to Ireland;
Whereas in that country there is only one hop producing region and whereas that region contains less than seven producers;
Whereas because of Ireland's geographical situation it would be difficult for Irish producers to join producer groups in other Member States ; whereas the producers in question, four in number, otherwise fulfil all the conditions required by Regulation (EEC) No 1351/72 for the formation of a recognized producer group;
Whereas in order not to create a situation liable to prejudice these producers in relation to other producers in the Community it is necessary to derogate from the provisions of Article 2 (1) of Regulation (EEC) No 1351/72 in favour of Ireland by reducing to three the minimum number of producers required for the formation of a group;
Whereas the measures provided for in this Regulation are in accordance with the Opinion of the Management Committee for Hops,
HAS ADOPTED THIS REGULATION:
Article 1
In Ireland, in derogation from Article 2 (1) of Regulation (EEC) No 1351/72, a group of producers may be recognized if it is composed of at least three producers.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 May 1975.
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COMMISSION DECISION
of 18 September 2009
implementing Council Directive 2008/73/EC as regards Internet-based information pages containing lists of establishments and laboratories approved by Member States in accordance with Community veterinary and zootechnical legislation
(notified under document C(2009) 6950)
(Text with EEA relevance)
(2009/712/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 64/432/EEC of 26 June 1964 on animal health problems affecting intra-Community trade in bovine animals and swine (1), and in particular the third paragraph of Article 6a, Articles 11(6) and 13(6) thereof,
Having regard to Council Directive 77/504/EEC of 25 July 1977 on pure-bred breeding animals of the bovine species (2), and in particular Article 4a(2) thereof,
Having regard to Council Directive 88/407/EEC of 14 June 1988 laying down the animal health requirements applicable to intra-Community trade in and imports of semen of domestic animals of the bovine species (3), and in particular Articles 5(3)and 9(3) thereof,
Having regard to Council Directive 88/661/EEC of 19 December 1988 on the zootechnical standards applicable to breeding animals of the porcine species (4), and in particular the second paragraph of Article 4a thereof,
Having regard to Council Directive 89/361/EEC of 30 May 1989 concerning pure-bred breeding sheep and goats (5), and in particular the second paragraph of Article 5 thereof,
Having regard to Council Directive 89/556/EEC of 25 September 1989 on animal health conditions governing intra-Community trade in and importation from third countries of embryos of domestic animals of the bovine species (6), and in particular Articles 5(3) and 8(3) thereof,
Having regard to Council Directive 90/427/EEC of 26 June 1990 on the zootechnical and genealogical conditions governing intra-Community trade in equidae (7), and in particular the second paragraph of Article 5 thereof,
Having regard to Council Directive 90/428/EEC of 26 June 1990 on trade in equidae intended for competitions and laying down the conditions for participation therein (8), and in particular Article 4(3) thereof,
Having regard to Council Directive 90/429/EEC of 26 June 1990 laying down the animal health requirements applicable to intra-Community trade in and imports of semen of domestic animals of the porcine species (9), and in particular Articles 5(3) and 8(3) thereof,
Having regard to Council Directive 90/539/EEC of 15 October 1990 on animal health conditions governing intra-Community trade in, and imports from third countries of, poultry and hatching eggs (10), and in particular the third paragraph of Article 4 and the second paragraph of Article 6a,
Having regard to Council Directive 91/68/EEC of 28 January 1991 on animal health conditions governing intra-Community trade in ovine and caprine animals (11), and in particular Article 8a (6) and the second subparagraph of Article 8b(5) thereof,
Having regard to Council Directive 91/496/EEC of 15 July 1991 laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC (12), and in particular Article 10(4)(b) thereof,
Having regard to Council Directive 92/35/EEC of 29 April 1992 laying down control rules and measures to combat African horse sickness (13), and in particular the second subparagraph of Article 14(1) thereof,
Having regard to Council Directive 92/65/EEC of 13 July 1992 laying down animal health requirements governing trade in and imports into the Community of animals, semen, ova and embryos not subject to animal health requirements laid down in specific Community rules referred to in Annex A (I) to Directive 90/425/EEC (14), and in particular the third subparagraph of Article 11(4), the third subparagraph of Article 13(2)(d) and the fifth subparagraph of Article 17(3)(b) thereof,
Having regard to Council Directive 92/66/EEC of 14 July 1992 introducing Community measures for the control of Newcastle disease (15), and in particular the second subparagraph of Article 14(5) thereof,
Having regard to Council Directive 92/119/EEC of 17 December 1992 introducing general Community measures for the control of certain animal diseases and specific measures relating to swine vesicular disease (16), and in particular Article 17(7),
Having regard to Council Directive 2000/75/EC of 20 November 2000 laying down specific provisions for the control and eradication of bluetongue (17), and in particular the second subparagraph of Article 15(1) thereof,
Having regard to Council Decision 2000/258/EC of 20 March 2000 designating a specific institute responsible for establishing the criteria necessary for standardising the serological tests to monitor the effectiveness of rabies vaccines (18), and in particular Article 3(3) thereof,
Having regard to Council Directive 2001/89/EC of 23 October 2001 on Community measures for the control of classical swine fever (19), and in particular the second subparagraph of Article 17(1)(b) thereof,
Having regard to Council Directive 2002/60/EC of 27 June 2002 laying down specific provisions for the control of African swine fever and amending Directive 92/119/EEC as regards Teschen disease and African swine fever (20), and in particular the second subparagraph of Article 18(1)(b) thereof,
Having regard to Council Directive 2005/94/EC of 20 December 2005 on Community measures for the control of avian influenza and repealing Directive 92/40/EEC (21), and in particular Article 51(2) thereof,
Whereas:
(1)
Intra-Community trade in certain live animals and their products is only permitted from establishments that comply with the relevant provisions of Community law and are approved for that purpose by the competent authority of the Member State where they are located.
(2)
Council Directive 2008/73/EC of 15 July 2008 simplifying procedures of listing and publishing information in the veterinary and zootechnical fields (22) provides that Member States are to draw up, keep up to date and make the lists of approved establishments in the veterinary and zootechnical fields available to the other Member States and to the public.
(3)
In addition, Directive 2008/73/EC lays down that Member States have the responsibility to provide to the other Member States and to the public up-to-date information concerning national reference laboratories and certain other laboratories that they have designated in accordance with the relevant provisions of Community law.
(4)
In order to facilitate access by the other Member States and by the public to the lists of approved establishments and laboratories, the lists should be made electronically available by Member States by means of Internet-based information pages.
(5)
The Commission should assist Member States in making those lists available to the other Member States and to the public by providing the Internet address of a website which shall display national links to Internet-based information pages of the Member States.
(6)
In order to facilitate the exchange of information by electronic means between Member States, and to ensure transparency and comprehensibility, it is important that lists are presented in a uniform way throughout the Community. Models of the layout of the Internet-based information pages should therefore be set out in the Annexes to this Decision.
(7)
In the case of equidae, the format of the list of approved or recognised bodies maintaining or establishing studbooks to be drawn up in accordance with Article 5 of Directive 90/427/EEC should also provide the information required in accordance with Article 22 of Commission Regulation (EC) No 504/2008 of 6 June 2008 implementing Council Directives 90/426/EEC and 90/427/EEC as regards methods for the identification of equidae (23) and should be easily adaptable for the listing of other bodies issuing identification documents for registered equidae or equidae for breeding and production.
(8)
By reference to Article 2(2)(o) of Directive 64/432/EEC, Article 7(1) of Council Directive 90/426/EEC of 26 June 1990 on animal health conditions governing the movement and imports from third countries of equidae (24) implies the obligation of listing assembly centres approved for trade in equidae including markets or marshalling centres.
(9)
Directive 2008/73/EC is to be transposed by the Member States by 1 January 2010 at the latest. Accordingly, the Internet-based information pages should be made available by that date.
(10)
Commission Decision 2007/846/EC of 6 December 2007 establishing a model for the lists of entities approved by Member States in accordance with various provisions of Community veterinary legislation, and the rules applying to the transmission of these lists to the Commission (25), establishes a common model for the lists of certain entities approved by Member States and the rules applying to the transmission of these lists.
(11)
In the interests of clarity of Community legislation, Decision 2007/846/EC should be repealed and replaced by this Decision.
(12)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health and the Standing Committee on Zootechnics,
HAS ADOPTED THIS DECISION:
Article 1
Internet-based information pages
1. Member States shall establish by 1 January 2010 at the latest Internet-based information pages in order to make electronically available to the other Member States and to the public the lists of the following establishments and laboratories which are approved, recognised or otherwise designated in accordance with the Directives listed in Annex I (approval):
(a)
establishments in the veterinary field as set as in Chapter 1 of Annex II;
(b)
establishments in the zootechnical field as set out in Chapter 2 of Annex II; and
(c)
laboratories as set out in Chapter 3 of Annex II.
2. The Internet-based information pages shall be drawn up by Member States in conformity with the models set out in Annex II and with the additional requirements set out in Annex III.
3. Member States shall keep the Internet-based information pages up to date so that they take into account any new approval and any suspension or withdrawal thereof of establishments and laboratories where they no longer comply with the relevant Community provisions.
4. Member States shall communicate the Internet address of their Internet-based information pages to the Commission.
Article 2
Repeal
Decision 2007/846/EC is repealed with effect from 1 January 2010.
Article 3
Addressees
This Decision is addressed to the Member States.
Done at Brussels, 18 September 2009.
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Commission Regulation (EC) No 933/2001
of 11 May 2001
fixing the maximum purchasing price for butter for the 28th invitation to tender carried out under the standing invitation to tender governed by Regulation (EC) No 2771/1999
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 1670/2000(2), and in particular Article 10 thereof,
Whereas:
(1) Article 13 of Commission Regulation (EC) No 2771/1999 of 16 December 1999 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in butter and cream(3), as last amended by Regulation (EC) No 213/2001(4), provides that, in the light of the tenders received for each invitation to tender, a maximum buying-in price is to be fixed in relation to the intervention price applicable and that it may also be decided not to proceed with the invitation to tender.
(2) As a result of the tenders received, the maximum buying-in price should be fixed as set out below.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
For the 28th invitation to tender issued under Regulation (EC) No 2771/1999, for which tenders had to be submitted not later than 8 May 2001, the maximum buying-in price is fixed at 295,38 EUR/100 kg.
Article 2
This Regulation shall enter into force on 12 May 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 May 2001.
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COMMISSION REGULATION (EC) No 1710/2005
of 19 October 2005
amending Regulation (EC) No 2138/97 delimiting the homogenous olive oil production zones
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation No 136/66/EEC of the Council of 22 September 1966 on the establishment of a common organisation of the market in oils and fats (1),
Having regard to Council Regulation (EEC) No 2261/84 of 17 July 1984 laying down general rules on the granting of aid for the production of olive oil and of aid to olive oil producer organisations (2), and in particular Article 19 thereof,
Whereas:
(1)
Article 18 of Regulation (EEC) No 2261/84 stipulates that olive yields and oil yields are to be fixed by homogenous production zones on the basis of the figures supplied by producer Member States.
(2)
The production zones are delimited in the Annex to Commission Regulation (EC) No 2138/97 (3). For administrative and structural reasons the homogeneous production zones in Greece, Spain and Italy should be amended for the 2004/05 marketing year.
(3)
Regulation (EC) No 2138/97 should therefore be amended accordingly.
(4)
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
The Annex to Regulation (EC) No 2138/97 is hereby amended as follows:
1.
In point A the parts relating to the provinces of Perugia, Brindisi, Lecce, Catanzaro, Reggio Calabria and Siracusa are replaced respectively by the texts in Annex I to this Regulation.
2.
Point C is replaced by the text set out in Annex II to this Regulation.
3.
In point D, under the heading ‘Comunidad autónoma: Aragón’, as regards the province of Zaragoza:
(a)
in zone 2, ‘Atea’ is replaced by the following: ‘Atea (as regards non-irrigated olive trees)’;
(b)
in zone 5, the following is inserted: ‘Atea (as regards irrigated cultivation)’.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
It shall apply from 1 November 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 October 2005.
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COMMISSION REGULATION (EC) No 395/98 of 19 February 1998 amending Regulation (EEC) No 2807/83 laying down detailed rules for recording information on Member States' catches of fish
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), as last amended by Regulation (EC) No 2635/97 (2), and in particular Article 19e(5) thereof,
Whereas Council Regulation (EC) No 779/97 (3) introduces arrangements for the management of fishing effort in the Baltic Sea with effect from 1 January 1998;
Whereas Regulation (EC) No 2635/97 amended Regulation (EEC) No 2847/93 to ensure compliance with the arrangements for the management of fishing effort in the Baltic Sea;
Whereas the amendments relate to, inter alia, the provisions for recording data on fishing effort in the logbook;
Whereas Commission Regulation (EEC) No 2807/83 (4), as last amended by Regulation (EC) No 2945/95 (5), lays down rules for recording information on Member States' catches of fish;
Whereas pursuant to Article 19e(5) of Regulation (EEC) No 2847/93 detailed rules for recording information on fishing effort in the logbook should be laid down in order to implement the arrangements for the management of fishing effort referred to in Regulation (EC) No 779/97;
Whereas Regulation (EEC) No 2807/83 should be amended accordingly;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fisheries and Aquaculture,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2807/83 is hereby amended as follows:
1. in Article 1a(1) the following is added after 'Council Regulation (EC) No 685/95`: 'and in Article 1 of Council Regulation (EC) No 779/97 (*),
(*) OJ L 113, 30.4.1997, p. 1.`;
2. in Annex VIa:
- in the column 'Group of target species`, the following is added:
TABLE
- in the column 'Effort zones`, the following is added:
'T: IBSFC areas (subdivisions 22 to 32)
U: Management Unit 3 (*)
(*) Comprising subdivisions 29, 30 and 31 north of latitude 59°30' N.`
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
It shall apply from 1 July 1998.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 February 1998.
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COMMISSION REGULATION (EC) No 2945/94 of 2 December 1994 amending Regulation (EEC) No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products, as regards the recovery of amounts unduly paid and sanctions
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (1), as last amended by Regulation (EC) No 2807/94 (2), and in particular Article 17 (4) thereof, and to the corresponding provisions of the other regulations on the common organization of the markets in agricultural products,
Having regard to Council Regulation (EEC) No 876/68 of 28 June 1968 laying down general rules for granting export refunds on milk and milk products and criteria for fixing the amount of such refunds (3), as last amended by Regulation (EC) No 776/94 (4), and in particular the second subparagraph of Article 6 (2) and Article 6 (3) thereof, and to the corresponding provisions of the other regulations laying down general rules for granting export refunds on agricultural products,
Whereas the Community rules provide for the granting of export refunds on the basis of solely objective criteria, in particular concerning the quantity, nature and characteristics of the product exported as well as its geographical destination; whereas in the light of experience, measures to combat irregularities and notably fraud prejudicial to the Community budget should be intensified; whereas, to that end, provision should be made for the recovery of amounts unduly paid and sanctions to encourage exporters to comply with Community rules;
Whereas to ensure the correct functioning of the system of export refunds, sanctions should be applied regardless of the subjective element of fault; whereas it is nevertheless appropriate to waive the application of sanctions in certain cases notably in cases of an obvious error recognized by the competent authority and to provide for a higher sanction in cases of intent;
Whereas, where an exporter has supplied wrong information that wrong information could lead to an undue payment of the refund if the error is not discovered, whilst, where the error is discovered it is entirely proportional to sanction the exporter for an amount in proportion to the amount which he would have received unduly if the error would not have been discovered; whereas in the case where the wrong information was supplied intentionally it is equally porportional to provide for a higher sanction;
Whereas, pursuant to Article 8 (1) of Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy (5), as last amended by Regulation (EEC) No 2048/88 (6), Member States are under an obligation to recover sums paid as a result of irregularities or negligence; whereas, in order to ensure equal treatment for exporters in Member States, explicit provision should be made, as far as export refunds are concerned, for any amount unduly paid to be reimbursed with interest by the beneficiary, and the procedure for payment should be laid down; whereas, in order better to protect the Community's financial interests, provision should be made, in cases where the right to a refund is transferred, for that obligation to be extended to the assignee; whereas the amounts recovered and the interest and sanctions collected must be credited to the European Agricultural Guidance and Guarantee Fund (EAGGF), in accordance with the principles laid down in Article 8 (2) of Regulation (EEC) No 729/70;
Whereas past experience and irregularities and notably fraud recorded in this context show that this measure is necessary and appropriate, that it will act as an adequate deterrent and that it is to be uniformly applied throughout the Member States;
Whereas Commission Regulation (EEC) No 3665/87 (7), as last amended by Regulation (EC) No 1829/94 (8), should therefore be amended;
Whereas the Management Committees concerned have not delivered an opinion within the time limit laid down by their chairmen,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 3665/87 is amended as follows:
1. Article 11 is replaced by the following:
'Article 11
1. Where it has been found that an exporter, with a view to the granting of an export refund, has requested a refund in excess of that applicable, the refund due for the relevant exportation shall be the refund applicable to the actual exportation reduced by an amount equivalent to:
(a) half the difference between the refund requested and the refund applicable to the actual exportation;
(b) twice the difference between the refund requested and the refund applicable, if the exporter has intentionally supplied false information.
The refund requested is deemed to be the amount calculated from the information supplied pursuant to Article 3 or Article 25 (2). Where the rate of refund varies according to destination, the differentiated part of the refund requested shall be calculated from the information supplied pursuant to Article 47.
The sanction referred to under (a) shall not apply:
- in the case of force majeure,
- in exceptional cases characterized by circumstances beyond the control of the exporter, which occur after the acceptance by the competent authorities of the export declaration or the payment declaration, and provided that he, immediately after he took note of these circumstances but within the time limit referred to in Article 47 (2), notifies the competent authorities, unless the competent authorities have already established that the refund requested was incorrect,
- in cases of obvious error as to the refund requested, recognized by the competent authority,
- in cases where the request for the refund is in accordance with Commission Regulation (EC) No 1222/94 (9)(), and in particular Article 3 (2) thereof, and has been calculated on the basis of the average quantities used over a specified period,
- in case of adjustment of the weight in so far as the deviation in the weight is due to a difference in the weighing method applied.
Where the reduction referred to under (a) or (b) results in a negative amount, the exporter shall pay that negative amount.
Where the competent authorities have established that the refund requested was incorrect and the exportation has not been effected and consequently no reduction of refund is possible, the exporter shall pay the amount equivalent to the sanction referred to under (a) or (b). Where the rate of refund varies according to destination, except in the case of a compulsory destination, the lowest positive rate or, if higher, the rate resulting from the indication as to the destination pursuant to Article 22 (2) or Article 25 (4) shall be taken into account for the calculation of the refund requested and the refund applicable.
The payment referred to in the fourth and fifth subparagraphs shall be made within 30 days from the day of receipt of the demand for payment. Where this deadline is not met, the exporter shall pay interest for the period commencing 30 days after the date of receipt of the payment demand and ending on the day preceding the date of payment of the amount demanded at the interest rate referred to in paragraph 3.
The sanctions shall not apply simply where the refund requested is higher than the refund applicable pursuant to the application of Article 48.
The santions shall be without prejudice to additional sanctions laid down at national level.
2. The refund may be withheld if the amount thereof, per export declaration, does not exceed ECU 50.
3. Without prejudice to the obligation to pay any negative amount as referred to in the fourth subparagraph of paragraph 1, where a refund is unduly paid, the beneficiary shall reimburse the amounts unduly received - which includes any sanction applicable pursuant to the first subparagraph of paragraph 1, - plus the interest calculated on the basis of the time elapsing between payment and reimbursement. However,
- where reimbursement is covered by a security not yet released, seizure of that security in accordance with Article 23 (1) or Article 33 (1) shall constitute recovery of the amounts due,
- where the security has been released, the beneficiary shall pay the amount of the security which would have been forfeit plus interest calculated from the date of release to the day preceding the date of payment.
The payment shall be made within 30 days from the day of receipt of the demand for payment.
The interest rate shall be calculated in accordance with the provisions of national law but may not be less than the rate applicable for the recovery of national amounts.
No interest shall be levied, or at the most an amount to be determined by the Member State corresponding to the undue profit, if the indue payment was an error of the competent authority,
Where the refund has been paid to an assignee, he and the exporter shall be jointly and severally responsible for the reimbursement of the amounts unduly paid, securities unduly released and interest which are relating to that specific export transaction. The responsibility of the assignee, however, is limited to the amount paid to him plus interest on that amount.
4. The amounts recovered, the amounts resulting from the fourth and fifth subparagraphs of paragraph 1, and interest collected shall be paid to the paying agencies which shall deduct the amounts concerned from European Agricultural Guidance and Guarantee Fund (EAFFG) expenditure, without prejudice to Article 7 of Council Regulation (EEC) No 595/91 (10)().
Where the time limit for payment is not met, Member States may decide that, instead of reimbursement, amounts unduly paid, securities unduly released and interest until the date of set off, shall be deducted from subsequent payments to the exporter concerned. This shall also apply to amounts to be paid resulting from the fourth and fifth subparagraphs of paragraph 1.
5. Member States may refrain from demanding reimbursement of amounts unduly paid, securities unduly released, interest and amounts resulting from the fourth and fifth subparagraphs of paragraph 1, where the total of these amounts per export declaration does not exceed ECU 50, provided that, under national law, such cases are covered by similar rules of non-recovery.
6. For the application of this Article, where an export declaration contains several distinct refund nomenclature or combined nomenclature codes, the entries relating to each of these codes shall be considered as a separate declaration.
'
2. In Article 48, the following paragraph 6 is added:
'6. Where Article 11 applies:
- the calculation of the reductions referred to in this Article shall be based on the amount of the refund due resulting from the application of Article 11,
- the refund lost pursuant to this Article shall not exceed the refund due resulting from the application of Article 11.'
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
It shall apply to exports for which the formalities referred to in Articles 3 or 25 of Regulation (EEC) No 3665/87 are completed from 1 April 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 December 1994.
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COMMISSION DECISION
of 4 August 2006
fixing an indicative allocation by Member State of the commitment appropriations for the Regional competitiveness and employment objective for the period 2007-2013
(notified under document number C(2006) 3472)
(2006/593/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions for the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (1), and in particular Article 18(2) thereof,
Whereas:
(1)
Pursuant to point (b) of Article 3(2) of Regulation (EC) No 1083/2006, the Regional competitiveness and employment objective aims at strengthening the competitiveness and attractiveness of regions.
(2)
Pursuant to point (b) of Article 4(1) of Regulation (EC) No 1083/2006, the European Regional Development Fund and the European Social Fund contribute towards achieving the objectives referred to in point (b) of Article 3(2) of that Regulation. Pursuant to Article 4(2), the Cohesion Fund also intervenes in those regions not eligible for support under the Convergence objective which belong to Member States eligible for support under that Fund.
(3)
Pursuant to Article 20 of Regulation (EC) No 1083/2006, 15,95 % of the resources available for commitment from the European Regional Development Fund, the European Social Fund and the Cohesion Fund (hereinafter the Funds) for the period 2007 to 2013 are to be allocated to the Regional competitiveness and employment objective, including 21,14 % for the transitional and specific support referred to in Article 8(2) of that Regulation.
(4)
It is necessary to make indicative breakdowns by Member States of the resources to be allocated to the Regional competitiveness and employment objective. Pursuant to Article 18(2) of Regulation (EC) No 1083/2006, this should be done in accordance with the criteria and methodology set out in Annex II to Regulation (EC) No 1083/2006.
(5)
The fourth point of Annex II to Regulation (EC) No 1083/2006 establishes the method for allocating available resources to the Member States and regions eligible for funding pursuant to Article 6 of that Regulation.
(6)
Point 6(b) of Annex II to Regulation (EC) No 1083/2006 establishes the method for determining the allocations under the transitional supports referred to in Article 8(2) of that Regulation.
(7)
Point 7 of Annex II to Regulation (EC) No 1083/2006 determines the maximum level of transfer from the Funds to each individual Member State.
(8)
Points 12 to 31 of Annex II to Regulation (EC) No 1083/2006 fix the amounts pertaining to certain specific cases for the period 2007 to 2013.
(9)
Pursuant to Article 24 of Regulation (EC) No 1083/2006, 0,25 % of the resources available for commitment from the Funds for the period 2007 to 2013 shall be devoted to finance technical assistance at the initiative of the Commission; the indicative allocation by Member States should therefore be exclusive of the amount corresponding to technical assistance,
HAS ADOPTED THIS DECISION:
Article 1
The indicative amounts by Member State of the commitment appropriations for the regions eligible for funding from the Structural Funds under the Regional competitiveness and employment objective as referred to in Article 6 of Regulation (EC) No 1083/2006, including the additional amounts fixed in Annex II to that Regulation, shall be as set out in Table 1 of Annex I.
The annual breakdown by Member State by year of the commitment appropriations referred to in the previous paragraph shall be as set out in Table 2 of Annex I.
Article 2
The indicative amounts by Member State of the commitment appropriations for the transitional and specific support from the Structural Funds under the Regional competitiveness and employment objective as referred to in Article 8(2) of Regulation (EC) No 1083/2006, including the additional amounts fixed in Annex II to that Regulation, shall be as set out in Table 1 of Annex II.
The annual breakdown by Member State by year of the commitment appropriations referred to in the previous paragraph shall be as set out in Table 2 of Annex II.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 4 August 2006.
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COMMISSION REGULATION (EC) No 1151/2008
of 20 November 2008
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to 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 21 November 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 November 2008.
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COMMISSION REGULATION (EC) No 1710/2004
of 30 September 2004
determining the world market price for unginned cotton
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Protocol 4 on cotton, annexed to the Act of Accession of Greece, as last amended by Council Regulation (EC) No 1050/2001 (1),
Having regard to Council Regulation (EC) No 1051/2001 of 22 May 2001 on production aid for cotton (2), and in particular Article 4 thereof,
Whereas:
(1)
In accordance with Article 4 of Regulation (EC) No 1051/2001, a world market price for unginned cotton is to be determined periodically from the price for ginned cotton recorded on the world market and by reference to the historical relationship between the price recorded for ginned cotton and that calculated for unginned cotton. That historical relationship has been established in Article 2(2) of Commission Regulation (EC) No 1591/2001 of 2 August 2001 laying down detailed rules for applying the cotton aid scheme (3). Where the world market price cannot be determined in this way, it is to be based on the most recent price determined.
(2)
In accordance with Article 5 of Regulation (EC) No 1051/2001, the world market price for unginned cotton is to be determined in respect of a product of specific characteristics and by reference to the most favourable offers and quotations on the world market among those considered representative of the real market trend. To that end, an average is to be calculated of offers and quotations recorded on one or more European exchanges for a product delivered cif to a port in the Community and coming from the various supplier countries considered the most representative in terms of international trade. However, there is provision for adjusting the criteria for determining the world market price for ginned cotton to reflect differences justified by the quality of the product delivered and the offers and quotations concerned. Those adjustments are specified in Article 3(2) of Regulation (EC) No 1591/2001.
(3)
The application of the above criteria gives the world market price for unginned cotton determined hereinafter,
HAS ADOPTED THIS REGULATION:
Article 1
The world price for unginned cotton as referred to in Article 4 of Regulation (EC) No 1051/2001 is hereby determined as equalling 19,846 EUR/100 kg.
Article 2
This Regulation shall enter into force on 1 October 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 September 2004.
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Commission Regulation (EC) No 2100/2002
of 28 November 2002
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 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 29 November 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 November 2002.
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