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COMMISSION REGULATION (EEC) No 416/93 of 25 February 1993 amending Regulation (EEC) No 2384/91 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 Article 3 (2) (a) of Commission Regulation (EEC) No 2384/91 (1), as amended by Regulation (EEC) No 195/92 (2), initiates a distillation operation reserved for producers of table wine in Portugal for a total quantity not exceeding two million hectolitres;
Whereas the actual operation covers a slightly larger volume; whereas this excess should be allowed, and, as a result, the volume of products to be distilled previously laid down should be amended; whereas this operation is a special transitional measure to facilitate the integration of the Portuguese market into the common organization of the market in wine and to ensure stabilization of the market in response to the table wine production surpluses; whereas an adjustement of the quantities to be eliminated to sustain prices will help to achieve the desired economic effect;
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
In Article 3 (2) (a) of Regulation (EEC) No 2384/91, 'two million hectolitres' is hereby replaced by '2,279 million hectolitres'.
Article 2
The intervention agency shall verify that all the requirements have been met before payment of the aid.
Article 3
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 February 1993.
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COUNCIL DECISION 2005/806/CFSP
of 21 November 2005
implementing Joint Action 2005/557/CFSP on the European Union civilian-military supporting action to the African Union mission in the Darfur region of Sudan
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to Council Joint Action 2005/557/CFSP of 18 July 2005 on the European Union civilian-military supporting action to the African Union mission in the Darfur region of Sudan (1), and in particular Article 8(1), second subparagraph thereof, in conjunction with Article 23(2) of the Treaty on European Union,
Whereas:
(1)
The Council has in accordance with Article 15 of Joint Action 2005/557/CFSP decided to continue the European Union civilian-military supporting action to the African Union mission in the Darfur region of Sudan.
(2)
As concerns the civilian component the Council should consequently decide on the reference amount for the continuation of the supporting action.
(3)
The EU supporting action to the AMIS II will be conducted in the context of a situation which may deteriorate and could harm the objectives of the CFSP as set out in Article 11 of the Treaty,
HAS DECIDED AS FOLLOWS:
Article 1
1. The financial reference amount intended to cover the expenditure related to the implementation of Section II of Joint Action 2005/557/CFSP from 29 January until 28 July 2006 shall be EUR 2 200 000.
2. The expenditure financed by the amount stipulated in paragraph 1 shall be managed in accordance with the European Community procedures and rules applicable to the budget, with the exception that any pre-financing shall not remain the property of the Community. Nationals of third states shall be allowed to tender for contracts.
Article 2
The Council shall no later than 30 June 2006 evaluate whether the EU supporting action should be continued.
Article 3
This Decision shall enter into force on the date of its adoption.
The expenditure shall be eligible from 29 January 2006.
Article 4
This Decision shall be published in the Official Journal of the European Union.
Done at Brussels, 21 November 2005.
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COMMISSION DECISION of 9 December 1996 on the adoption of specific measures to temporarily prohibit the use of the comprehensive guarantee for certain external Community transit operations (96/743/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1), as amended by the Act of Accession of Austria, Finland and Sweden, and in particular Article 249 thereof,
Having regard to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (2), as last amended by Regulation (EC) No 2153/96 (3), and in particular Article 362 thereof,
Whereas the customs administration of the Kingdom of Spain, by its letter dated 4 April 1995, supplemented by its letter dated 27 July 1995, sought the agreement of the Commission to temporarily prohibit the use of the comprehensive guarantee for external Community transit operations concerning cigarettes of HS subheading 2402.20; whereas in this context, it obtained this agreement by Commission Decision 95/521/EC (4); whereas the prohibition measure was taken by Spain and took effect on 1 February 1996 in all Members States;
Whereas the customs administration of the Federal Republic of Germany, by its letter dated 6 September 1995, sought the agreement of the Commission to temporarily prohibit the use of the comprehensive guarantee for external Community transit operations concerning certain goods; whereas, in this context, it obtained this agreement by Commission Decision 96/37/EC (5); whereas the prohibition measure was taken by Germany and took effect on 1 April 1996 in all Members States;
Whereas Article 2 of Commission Regulation (EC) No 482/96 (6), extended until 31 December 1996 the measures of temporary prohibition of the use of the comprehensive guarantee taken by Spain and by Germany, on the basis of former Article 360 of Regulation (EEC) No 2454/93;
Whereas despite the introduction at Community level of provisions which give authority to prescribe itineraries and prohibit the change of office of destination, as well as the strengthening of the system of use of the comprehensive guarantee envisaged by Regulation (EC) No 482/96, the external Community transit operations concerning the goods referred to above continue to present increased risks of fraud;
Whereas the same Regulation substituted for this Article 360 new Article 362 establishing a new adoption procedure by the Commission of the measures of temporary prohibition of the use of the comprehensive guarantee involving the intervention of the Customs Code Committee;
Whereas the protection of the financial interests at risk in those operations makes it necessary to maintain the same measures for Common transit as for Community transit in order to ensure maximum effectiveness;
Whereas, however, the transport of goods for quantities less than a certain sum do not present serious risk of fraud;
Whereas the measures provided for in this decision are in accordance with the opinion of the Customs Code Committee,
HAS DECIDED AS FOLLOWS:
Article 1
Pursuant to Article 362 (1) of Regulation (EEC) No 2454/93, the use of the comprehensive guarantee shall be temporarily forbidden for Community transit operations in respect of:
- cigarettes of HS sub-heading 2402.20, when the quantity transported exceeds 35 000 pieces, and
- goods included in the Annex to this Decision, when the quantity transported exceeds that shown in column 3 of the said Annex and the goods are non-Community goods.
Article 2
Where several categories of goods referred to in the second indent of Article 1 are declared to the transit procedure on one document, and although the quantities in column 3 of the Annex are not exceeded in relation to each type of good, the use of the comprehensive guarantee shall be prohibited for that operation, if the duties and other charges to which the consignment might be liable exceed ECU 7 000.
Article 3
This Decision is addressed to the Member States.
Article 4
This Decision is published in the Official Journal of the European Communities in accordance with Article 362 (2) of Commission Regulation (EEC) No 2454/93 of 2 July 1993. It shall enter into force on 1 January 1997.
Done at Brussels, 9 December 1996.
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COMMISSION REGULATION (EC) No 788/98 of 14 April 1998 on the sale, by means of the procedure laid down in Regulation (EEC) No 2539/84, of beef held by certain intervention agencies and intended for export
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organisation of the market in beef and veal (1), as last amended by Regulation (EC) No 2634/97 (2), and in particular Article 7(3) thereof,
Whereas the application of intervention measures in respect of beef has resulted in a build-up of stocks in several Member States; whereas outlets for these products exist in certain third countries; whereas, in order to prevent storage being prolonged excessively, part of these stocks should be sold by tendering procedure for export to those countries; whereas to permit the sale of meat of uniform quality, beef that was purchased under Article 6 of Regulation (EEC) No 805/68 should be sold;
Whereas Commission Regulation (EEC) No 2539/84 of 5 September 1984 laying down detailed rules for certain sales of frozen beef held by the intervention agencies (3), as last amended by Regulation (EC) No 2417/95 (4), provides for the possibility of a two-stage procedure for the sale of beef from intervention;
Whereas the sale should be conducted in accordance with Regulation (EEC) No 2539/84 and Commission Regulation (EEC) No 3002/92 of 16 October 1992 laying down common detailed rules for verifying the use and/or destination of products from intervention (5), as last amended by Regulation (EC) No 770/96 (6);
Whereas, in order to ensure that the tendering procedure is consistent and uniform, measures should be adopted in addition to those provided for in Article 8(1) of Commission Regulation (EEC) No 2173/79 of 4 October 1979 on detailed rules of application for the disposal of beef bought in by intervention agencies (7), as last amended by Regulation (EC) No 2417/95;
Whereas provision should be made for derogations from Article 8(2)(b) of Regulation (EEC) No 2173/79 in view of the administrative difficulties which the application of this point is creating in the Member States concerned;
Whereas, for administrative reasons, a minimum quantity should be set for tenders, taking into consideration normal commercial practice;
Whereas, for practical reasons, export refunds will not be granted for beef sold under this Regulation; whereas, however, buyers will be required to apply for export licences for the quantity allocated, in accordance with Commission Regulation (EC) No 1445/95 of 26 June 1995 on rules of application for import and export licences in the beef and veal sector (8), as last amended by Regulation (EC) No 759/98 (9); whereas the deadline for taking over laid down in Article 6 of Regulation (EEC) No 2539/84 should accordingly be adjusted;
Whereas, in order to ensure that the beef sold is exported to the eligible third countries, provision should be made for a security to be lodged before the goods are taken over and the primary requirements should be determined;
Whereas products from intervention stocks may in certain cases have undergone several handling operations; whereas, in order to contribute to their satisfactory presentation and marketing, it is appropriate to authorise the repackaging of the products in certain specified circumstances;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. The sale shall take place of intervention products bought in under Article 6 of Regulation (EEC) No 805/68, of approximately:
(a) - 2 000 tonnes of bone-in beef held by the Spanish intervention agency,
- 4 000 tonnes of bone-in beef held by the German intervention agency,
- 2 000 tonnes of bone-in beef held by the Austrian intervention agency,
- 250 tonnes of bone-in beef held by the Danish intervention agency,
- 250 tonnes of bone-in beef held by the Belgian intervention agency,
- 4 000 tonnes of bone-in beef held by the French intervention agency,
- 2 000 tonnes of bone-in beef held by the Italian intervention agency,
- 250 tonnes of bone-in beef held by the Dutch intervention agency,
- 100 tonnes of bone-in beef held by the Swedish intervention agency;
(b) - 8 000 tonnes of bone-in beef, to be sold as compensated quarters, held by the German intervention agency,
- 8 000 tonnes of bone-in beef, to be sold as compensated quarters, held by the French intervention agency,
- 2 000 tonnes of bone-in beef, to be sold as compensated quarters, held by the Spanish intervention agency,
- 2 000 tonnes of bone-in beef, to be sold as compensated quarters, held by the Italian intervention agency;
(c) - 4 000 tonnes of boneless beef held by the Irish intervention agency,
- 2 000 tonnes of boneless beef held by the French intervention agency.
2. The beef shall be exported to the zone 08 destinations referred to in Annex II to Commission Regulation (EC) No 125/98 (10).
3. Subject to the provisions of this Regulation, the sale shall be conducted in accordance with Regulations (EEC) No 2539/84 and No 3002/92.
Article 2
1. The qualities and the minimum prices referred to in Article 3(1) of Regulation (EEC) No 2539/84 are set out in Annex I hereto.
2. For each product mentioned in Annex I, the intervention agencies shall first sell the meat which has been stored the longest.
Particulars of the quantities and places where the products are stored shall be made available to interested parties at the addresses given in Annex II.
3. Only those tenders which reach the intervention agencies concerned no later than 12 noon on 20 April 1998 shall be taken into consideration.
4. A tender or purchase application shall be valid only if it relates to a minimum of 15 tonnes.
5. Tenders or purchase applications relating to the beef indicated in Article 1(1)(b) must be for an equal number of forequarters and hindquarters and must state a single price per tonne for the total quantity of bone-in beef desired.
6. Notwithstanding Article 8(1) of Regulation (EEC) No 2173/79, a tender must be submitted to the intervention agency concerned in a sealed envelope bearing a reference to the Regulation concerned. The sealed envelope must not be opened by the intervention agency before the tender deadline referred to in paragraph 3.
7. Notwithstanding Article 8(2)(b) of Regulation (EEC) No 2173/79, tenders shall not indicate which store the products are held in.
8. The security provided for in Article 5(1) of Regulation (EEC) No 2539/84 shall be ECU 12 per 100 kilograms.
Applications for export licences as referred to in Article 3(2) below shall constitute a primary requirement in addition to those laid down in Article 15(3) of Regulation (EEC) No 2173/79.
Article 3
1. The intervention agency shall notify each operator concerned by fax of the outcome of tenders or purchase applications.
2. The operator shall apply within five working days of the date of notification as referred to in paragraph 1 for one or more export licences as referred to in the first indent of Article 8(2) of Regulation (EC) No 1445/95 to cover the quantity awarded. Applications shall be accompanied by the fax referred to in paragraph 1 and shall contain in box 7 the name of one of the zone 08 countries referred to in Article 1(2). In addition, box 20 of the applications shall contain the following:
- Productos de intervención sin restitución [Reglamento (CE) n° 788/98]
- Interventionsvarer uden restitution (forordning (EF) nr. 788/98)
- Interventionserzeugnisse ohne Erstattung [Verordnung (EG) Nr. 788/98]
- Ðñïúüíôá ðáñÝìâáóçò ÷ùñßò åðéóôñïöÞ [Êáíïíéóìüò (ÅÊ) áñéè. 788/98]
- Intervention products without refund [Regulation (EC) No 788/98]
- Produits d'intervention sans restitution [règlement (CE) n° 788/98]
- Prodotti d'intervento senza restituzione [Regolamento (CE) n. 788/98]
- Producten uit interventievoorraden zonder restitutie (Verordening (EG) nr. 788/98)
- Produtos de intervenção sem restituição [Regulamento (CE) nº 788/98]
- Interventiotuotteita - ei vientitukea (Asetus (EY) N:o 788/98)
- Interventionsprodukt utan exportbidrag (Förordning (EG) nr 788/98).
Article 4
1. A security to guarantee exports to the third countries referred to in Article 1(2) shall be provided by the buyer before the goods are taken over. Importation into one of those countries shall constitute a primary requirement within the meaning of Article 20 of Commission Regulation (EEC) No 2220/85 (11).
2. The security referred to in paragraph 1 shall be per tonne:
- ECU 1 600 for bone-in hindquarters,
- ECU 900 for bone-in forequarters,
- ECU 1 600 for compensated quarters,
- ECU 2 000 for boneless meat coming under codes INT.12 to INT.17, and code INT.19,
- ECU 1 500 for other boneless meat.
Article 5
Notwithstanding Article 6 of Regulation (EEC) No 2539/84, taking over must be completed within 45 days.
Article 6
The competent authorities may permit products from intervention whose packaging is torn or soiled to be put up, under their supervision and before being presented for dispatch at the customs office of departure, in new packaging of the same type.
Article 7
No export refund shall be granted in respect of meat sold under this Regulation.
The removal order referred to in Article 3(1)(b) of Regulation (EEC) No 3002/92, the export declaration and, where appropriate, the control copy T5 shall contain one of the following entries:
- Productos de intervención sin restitución [Reglamento (CE) n° 788/98]
- Interventionsvarer uden restitution (forordning (EF) nr. 788/98)
- Interventionserzeugnisse ohne Erstattung [Verordnung (EG) Nr. 788/98]
- Ðñïúüíôá ðáñÝìâáóçò ÷ùñßò åðéóôñïöÞ [Êáíïíéóìüò (ÅÊ) áñéè. 788/98]
- Intervention products without refund [Regulation (EC) No 788/98]
- Produits d'intervention sans restitution [règlement (CE) n° 788/98]
- Prodotti d'intervento senza restituzione [Regolamento (CE) n. 788/98]
- Producten uit interventievoorraden zonder restitutie (Verordening (EG) nr. 788/98)
- Produtos de intervenção sem restituição [Regulamento (CE) nº 788/98]
- Interventiotuotteita - ei vientitukea (Asetus (EY) N:o 788/98)
- Interventionsprodukt utan exportbidrag (Förordning (EG) nr 788/98).
Article 8
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, 14 April 1998.
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COMMISSION REGULATION (EC) No 3130/93 of 10 November 1993 concerning the stopping of fishing for 'other species' by vessels flying the flag of the Netherlands
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (1), as amended by Regulation (EEC) No 3483/88 (2), and in particular Article 11 (3) thereof,
Whereas Council Regulation (EEC) No 3921/92 of 20 December 1992 allocating, for 1993, certain catch stocks quotas between Member States for vessels fishing in the Norwegian exclusive economic zone and the fishing zone around Jan Mayen (3), provides for 'other species' quotas for 1993;
Whereas, in order to ensure compliance with the provisions relating to the quantitative limitations on catches of stocks subject to quotas, it is necessary for the Commission to fix the date by which catches made by vessels flying the flag of a Member State are deemed to have exhausted the quota allocated;
Whereas, according to the information communicated to the Commission, catches of 'other species' in the waters of ICES division IV (Norwegian waters south of 62 °N) by vessels flying the flag of the Netherlands or registered in the Netherlands have reached the quota allocated for 1993; whereas the Netherlands has prohibited fishing for this stock as from 28 October 1993; whereas it is therefore necessary to abide by that date,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of 'other species' in the waters of ICES division IV (Norwegian waters south of 62 °N) by vessels flying the flag of the Netherlands or registered in the Netherlands are deemed to have exhausted the quotas allocated to the Netherlands for 1993.
Fishing for 'other species' in the waters of ICES division IV (Norwegian waters south of 62 °N) by vessels flying the flag of the Netherlands or registered in the Netherlands is prohibited, as well as the retention on board, the transhipment and the landing of such stock captured by the abovementioned vessels after the date of application of this Regulation.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply with effect from 28 October 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 November 1993.
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COUNCIL REGULATION (EC) No 2266/2004
of 20 December 2004
on trade in certain steel products between the Community and Ukraine
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
Partnership and Cooperation Agreement between the European Communities and their Member States, and Ukraine (1), provides that trade in some steel products are to be subject to a specific Agreement on quantitative arrangements.
(2)
The previous bilateral Agreement between the European Coal and Steel Community (ECSC) and the Government of Ukraine on trade in certain steel products expired on 31 December 2001.
(3)
The Community has taken over the international obligations of the ECSC since the expiry of the ECSC Treaty, and measures relating to trade in steel products with third countries now fall under the competence of the Community in the field of trade policy.
(4)
Preliminary discussions between the Parties indicate that both of them intend to conclude a new Agreement for 2005 and subsequent years.
(5)
Pending the signature and entry into force of the new Agreement, quantitative limits for the year 2005 should be established.
(6)
Given that the conditions that led to the fixing of the quantitative limits for 2004 remain in place, it is appropriate to set the quantitative limits for 2005 at the same level as for 2004, albeit by taking fully into account the EU enlargement.
(7)
It is necessary to provide the means to administer this regime within the Community in such a way as to facilitate the implementation of the new Agreement by envisaging as far as possible similar provisions.
(8)
It is necessary to ensure that the origin of the products in question is checked and appropriate methods of administrative cooperation are set up to this end.
(9)
Products placed in a free zone or imported under the arrangements governing customs warehouses, temporary importation or inward processing (suspension system) should not be counted against the limits established for the products in question.
(10)
The effective application of this Regulation calls for the introduction of a requirement for a Community import licence for the entry into free circulation in the Community of the products in question.
(11)
In order to ensure that these quantitative limits are not exceeded, it is necessary to establish a management procedure whereby the competent authorities of the Member States do not issue import licences before obtaining confirmation from the Commission that appropriate amounts remain available within the quantitative limit in question,
HAS ADOPTED THIS REGULATION:
Article 1
1. This Regulation shall apply from 1 January 2005 to 31 December 2005 to imports into the Community of steel products listed in Annex I originating in Ukraine.
2. The steel products shall be classified in product groups as set out in Annex I.
3. The classification of products listed in Annex I shall be based on the combined nomenclature (CN) established by Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (2).
4. The origin of the products referred to in paragraph 1 shall be determined in accordance with the rules in force in the Community.
Article 2
1. The importation into the Community of the steel products listed in Annex I originating in Ukraine shall be subject to the quantitative limits laid down in Annex V. The release for free circulation in the Community of the products set out in Annex I originating in Ukraine shall be subject to the presentation of a certificate of origin set out in Annex II, and of an import licence issued by the Member States' authorities in accordance with the provisions of Article 4.
2. In order to ensure that quantities for which import licences are issued do not exceed at any moment the total quantitative limits for each product group, the competent authorities listed in Annex IV shall issue import licences only upon confirmation by the Commission that there are still quantities available within the quantitative limits for the relevant product group of steel products in respect of the supplier country, for which an importer or importers have submitted applications to the said authorities.
3. The authorised imports shall be counted against the quantitative limits laid down for the year in which the products are shipped in the exporting country. Shipment of products shall be considered as having taken place on the date on which they were loaded onto the exporting means of transport.
Article 3
1. The quantitative limits referred to in Annex V shall not apply to products placed in a free zone or free warehouse or imported under the arrangements governing customs warehouses, temporary importation or inward processing (suspension system).
2. Where the products referred to in paragraph 1 are subsequently released for free circulation, either in the unaltered state or after working or processing, Article 2(2) shall apply and the products so released shall be counted against the relevant quantitative limit set out in Annex V.
Article 4
1. For the purpose of applying Article 2(2), before issuing import licences, the competent authorities of the Member States listed in Annex IV shall notify the Commission of the amounts of the requests for import licences, supported by original export licences, which they have received. By return, the Commission shall notify whether the requested amount(s) of quantities are available for importation in the chronological order in which the notifications of the Member States are received (‘first come, first served basis’).
2. The requests included in the notifications to the Commission shall be valid if they establish clearly in each case the exporting country, the product code concerned, the amounts to be imported, the number of the export licence, the quota year and the Member State in which the products are intended to be put into free circulation.
3. As far as possible, the Commission shall confirm to the authorities the full amount indicated in the requests notified for each group of products.
4. The competent authorities shall notify the Commission immediately after being informed of any quantity that is not used during the duration of validity of the import licence. Such unused quantities shall automatically be transferred into the remaining quantities of the total Community quantitative limit for each product group.
5. The notifications referred to in paragraphs 1 to 4 shall be communicated electronically within the integrated network set up for this purpose, unless for imperative technical reasons it is necessary to use other means of communication temporarily.
6. The import licences or equivalent documents shall be issued in accordance with Articles 12 to 16.
7. The competent authorities of the Member States shall notify the Commission of any cancellation of import licences or equivalent documents already issued in cases where the corresponding export licences have been withdrawn or cancelled by the competent Ukrainian authorities. However, if the Commission or the competent authorities of a Member State have been informed by the competent Ukrainian authorities of the withdrawal or cancellation of an export licence after the related products have been imported into the Community, the quantities in question shall be set off against the quantitative limit for the year during which the shipment of products took place.
Article 5
1. Where the Commission has indications that products listed in Annex I originating in Ukraine have been transhipped, rerouted or otherwise imported into the Community through circumvention of the quantitative limits referred to in Article 2 and that there is a need for the necessary adjustments to be made, it shall request that consultations be opened so that agreement may be reached on the necessary adjustment of the corresponding quantitative limits to be made.
2. Pending the outcome of the consultations referred to in paragraph 1, the Commission may ask Ukraine to take the necessary precautionary steps to ensure that adjustments to the quantitative limits agreed upon following such consultations may be carried out.
3. Should the Community and Ukraine fail to reach a satisfactory solution and should the Commission note that there is clear evidence of circumvention, the Commission shall deduct from the quantitative limits an equivalent volume of products originating in Ukraine.
Article 6
1. An export licence (to be issued by the competent Ukrainian authorities) shall be required in respect of any consignment of steel products subject to the quantitative limits laid down in Annex V up to the level of the said limits.
2. The original of the export licence shall be presented by the importer for the purposes of the issue of the import licence referred to in Article 12.
Article 7
1. The export licence for quantitative limits shall conform to the specimen set out in Annex II and shall certify, inter alia, that the quantity of goods in question has been set off against the quantitative limit established for the product group concerned.
2. Each export licence shall cover only one of the product groups listed in Annex I.
Article 8
Exports shall be set off against the quantitative limits established for the year in which the products covered by the export licence have been shipped within the meaning of Article 2(3).
Article 9
1. The export licence referred to in Article 6 may include additional copies duly indicated as such. The export licence and the copies thereof as well as the certificate of origin and the copies thereof shall be drawn up in English.
2. If the documents referred to in paragraph 1 are completed by hand, entries must be in ink and in block letters.
3. The export licences or equivalent documents shall measure 210 × 297 mm. The paper shall be white writing paper, sized, not containing mechanical pulp and weighing not less than 25 g/m2. Each part shall have a printed guilloche pattern background making any falsification by mechanical or chemical means apparent to the eye.
4. Only the original shall be accepted by the competent authorities in the Community as being valid for import purposes in accordance with the provisions of this Regulation.
5. Each export licence or equivalent document shall bear a standardized serial number, whether or not printed, by which it can be identified.
6. This number shall be composed of the following elements:
-
two letters identifying the exporting country as follows:
UA
=
Ukraine
-
two letters identifying the Member State of intended destination as follows:
BE
=
Belgium
CZ
=
Czech Republic
DK
=
Denmark
DE
=
Germany
EE
=
Estonia
EL
=
Greece
ES
=
Spain
FR
=
France
IE
=
Ireland
IT
=
Italy
CY
=
Cyprus
LV
=
Latvia
LT
=
Lithuania
LU
=
Luxembourg
HU
=
Hungary
MT
=
Malta
NL
=
Netherlands
AT
=
Austria
PL
=
Poland
PT
=
Portugal
SI
=
Slovenia
SK
=
Slovakia
FI
=
Finland
SE
=
Sweden
GB
=
United Kingdom,
-
a one-digit number identifying the quota year corresponding to the last figure in the year in question, e.g. ‘4’ for 2004;
-
a two-digit number identifying the issuing office in the exporting country;
-
a five-digit number running consecutively from 00001 to 99999 allocated to the specific Member State of destination.
Article 10
The export licence may be issued after the shipment of the products to which it relates. In such cases it shall bear the endorsement ‘issued retrospectively’.
Article 11
In the event of the theft, loss or destruction of an export licence, the exporter may apply to the competent authority which issued the document for a duplicate to be made out on the basis of the export documents in his possession. The duplicate licence issued in this way shall bear the endorsement ‘duplicate’.
The duplicate shall bear the date of the original licence.
Article 12
1. To the extent that the Commission, pursuant to Article 4, has confirmed that the amount requested is available within the quantitative limit in question, the competent authorities of the Member States shall issue an import licence within a maximum of five working days of the presentation by the importer of the original of the corresponding export licence. This presentation must be effected not later than 31 March of the year following that in which the goods covered by the licence have been shipped. Import licences shall be issued by the competent authorities of any Member State irrespective of the Member State indicated on the export licence, to the extent that the Commission, pursuant to Article 4, has confirmed that the amount requested is available within the quantitative limit in question.
2. The import licences shall be valid for four months from the date of their issue. Upon duly motivated request by an importer, the competent authorities of a Member State may extend the duration of validity for a further period not exceeding four months.
3. Import licences shall be drawn up in the form set out in Annex III and shall be valid throughout the customs territory of the Community.
4. The declaration or request made by the importer in order to obtain the import licence shall contain:
(a)
the full name and address of the exporter;
(b)
the full name and address of the importer;
(c)
the exact description of the goods and the TARIC code(s);
(d)
the country of origin of the goods;
(e)
the country of consignment;
(f)
the appropriate product group and the quantity for the products in question;
(g)
the net weight by TARIC heading;
(h)
the cif value of the products at Community frontier by TARIC heading;
(i)
whether the products concerned are seconds or of substandard quality;
(j)
where appropriate, dates of payment and delivery and a copy of the bill of lading and of the purchase contract;
(k)
date and number of the export licence;
(l)
any internal code used for administrative purposes;
(m)
date and signature of importer.
5. Importers shall not be obliged to import the total quantity covered by an import licence in a single consignment.
Article 13
The validity of import licences issued by the authorities of the Member States shall be subject to the validity of export licences and the quantities indicated in the export licences issued by the competent Ukrainian authorities on the basis of which the import licences have been issued.
Article 14
Import licences or equivalent documents shall be issued by the competent authorities of the Member States in accordance with Article 2(2) and without discrimination to any importer in the Community wherever the place of his establishment may be in the Community, without prejudice to compliance with other conditions required under the current rules.
Article 15
1. If the Commission finds that the total quantities covered by export licences issued by Ukraine for a particular product group exceed the quantitative limit established for that product group, the competent licence authorities in the Member States shall be informed immediately in order to suspend the further issue of import licences. In this event, consultations shall be initiated forthwith by the Commission.
2. The competent authorities of a Member State shall refuse to issue import licences for products originating in Ukraine which are not covered by export licenses issued in accordance with the provisions of Articles 6 to 11.
Article 16
1. The forms to be used by the competent authorities of the Member States for issuing the import licences referred to in Article 12 shall conform to the specimen of the import licence set out in Annex III.
2. Import licence forms and extracts thereof shall be drawn up in duplicate, one copy, marked ‘Holder's copy’ and bearing the number 1 to be issued to the applicant, and the other, marked ‘Copy for the issuing authority’ and bearing the number 2, to be kept by the authority issuing the licence. For administrative purposes, the competent authorities may add additional copies to form 2.
3. Forms shall be printed on white paper free of mechanical pulp, dressed for writing and weighing between 55 and 65 g/m2. Their size shall be 210 × 297 mm; the type space between the lines shall be 4,24 mm (one sixth of an inch); the layout of the forms shall be followed precisely. Both sides of copy No 1, which is the licence itself, shall in addition have a red printed guilloche pattern background so as to reveal any falsification by mechanical or chemical means.
4. Member States shall be responsible for having the forms printed. The forms may also be printed by printers appointed by the Member State in which they are established. In the latter case, reference to the appointment by the Member State must appear on each form. Each form shall bear an identification of the printer's name and address or a mark enabling the printer to be identified.
5. At the time of their issue the import licences or extracts shall be given an issue number determined by the competent authorities of the Member State. The import licence number shall be notified to the Commission electronically within the integrated network set up under Article 4.
6. Licences and extracts shall be completed in the official language, or one of the official languages, of the Member State of issue.
7. In box 10 the competent authorities shall indicate the appropriate steel product group.
8. The marks of the issuing agencies and debiting authorities shall be applied by means of a stamp. However, an embossing press combined with letters or figures obtained by means of perforation, or printing on the licence may be substituted for the issuing authority's stamp. The issuing authorities shall use any tamper-proof method to record the quantity allocated in such a way as to make it impossible to insert figures or references.
9. The reverse of copy No 1 and copy No 2 shall bear a box in which quantities may be entered, either by the customs authorities when import formalities are completed, or by the competent administrative authorities when an extract is issued. If the space set aside for debits on a licence or extract thereof is insufficient, the competent authorities may attach one or more extension pages bearing boxes matching those on the reverse of copy No 1 and copy No 2 of the licence or extract. The debiting authorities shall so place their stamp that one half is on the licence or extract thereof and the other half is on the extension page. If there is more than one extension page, a further stamp shall be placed in like manner across each page and the preceding page.
10. Import licences and extracts issued, and entries and endorsements made, by the authorities of one Member State shall have the same legal effect in each of the other Member States as documents issued, and entries and endorsements made, by the authorities of such Member States.
11. The competent authorities of the Member States concerned may, where indispensable, require the contents of licences or extracts to be translated into the official language or one of the official languages of that Member State.
Article 17
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 December 2004.
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Commission Regulation (EC) No 1453/2000
of 3 July 2000
repealing Regulation (EC) No 411/96 on detailed rules of application as regards import licences for oats falling within CN code 1004 00 00
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3093/95 of 22 December 1995 laying down the rates of duty to be applied by the Community resulting from negotiations under GATT Article XXIV.6 consequent upon the accession of Austria, Finland and Sweden to the European Union(1), and in particular Article 5 thereof,
Whereas:
(1) Commission Regulation (EC) No 411/96(2), pursuant to the provisions of the Agreement concerning the conclusion of negotiations between the Community and Australia under GATT Article XXIV.6, laid down the conditions governing the issue of import licences for 21000 tonnes of oats falling within CN code 1004 00 00, having a minimum specific weight of 55 kg/hl, a maximum moisture content of 12 % and a maximum content of grains of cereals other than oats of 2 % eligible for an import duty of EUR 89 per tonne.
(2) From 1 July 2000 the import duty for oats falling within CN code 1004 00 00 is EUR 89 per tonne. As a result, imports of oats within the quota and outside the quota will be subject to the same amount of import duty. As of 1 July 2000 therefore the provisions of Regulation (EC) No 411/96 are no longer of any relevance and should therefore be repealed.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 411/96 is hereby repealed.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply from 1 July 2000.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 July 2000.
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COMMISSION REGULATION (EC) No 1430/95 of 23 June 1995 setting export refunds on products processed from fruit and vegetables other than those granted for added sugar
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 426/86 of 24 February 1986 on the common organization of the market in products processed from fruit and vegetables (1), as last amended by Regulation (EC) No 1032/95 (2), and in particular Articles 13 (8), 14 (5) and 14a (7) thereof,
Having regard to Council Regulation (EC) No 3290/94 of 22 December 1994 on the adjustments and transitional arrangements required in the agriculture sector in order to implement the agreements concluded during the Uruguay Round of multilateral trade negotiations (3), and in particular Article 3 thereof,
Whereas Commission Regulation (EC) No 1429/95 (4) sets implementing rules for export refunds on products processed from fruit and vegetables;
Whereas Article 13 (1) of Regulation (EEC) No 426/86 states that, to the extent necessary to permit exports in economically significant quantities of the products referred to in Article 1 (1) (a) of that Regulation, on the basis of prices for those products in international trade, the difference between those prices and the prices in the Community may be covered by export refunds; whereas Article 14a (4) of Regulation (EEC) No 426/86 provides that, if the refund on sugar incorporated into the products listed in Article 1 (1) is insufficient to allow export of the products, the refund fixed in accordance with Article 14 is to be applicable to those products;
Whereas Article 14 (2) of Regulation (EEC) No 426/86 states that refunds must be fixed with regard to the existing situation and outlook for prices for products processed from fruit and vegetables on the Community market and supply availability, on the one hand, and prices in international trade on the other hand; whereas account must also be taken of the costs indicated at (b) in that paragraph and of the economic aspect of the envisaged exports;
Whereas refunds are, pursuant to Article 13 (1) of Regulation (EEC) No 426/86, to be set with due regard to the limits resulting from agreements concluded in accordance with Article 228 of the Treaty;
Whereas Article 14 (3) of Regulation (EEC) No 426/86 states that prices on the Community market are to be determined taking account of those most favourable from the exportation standpoint; whereas international trade prices are to be determined account taken of the prices indicated in the second subparagraph of that paragraph;
Whereas the international trade situation or the special requirements of certain markets may make it necessary to vary the refund on a given product depending on the destination of that product;
Whereas economically significant exports can be made at the present time of provisionally preserved cherries, peeled tomatoes, preserved cherries, prepared hazelnuts and orange juice;
Whereas Council Regulation (EEC) No 990/93 (5) prohibits trade between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro); whereas this prohibition does not apply in certain situations, all of which are specified in Articles 2, 4, 5 and 7 thereof; whereas account should be taken of these in setting refunds;
Whereas the representative market rates as defined in Article 1 of Council Regulation (EEC) No 3813/92 (6), as last amended by Regulation (EC) No 150/95 (7), are used to convert amounts in third-country currencies and are the basis for determining the agricultural conversion rates of the Member States' currencies; whereas rules for determining and applying these conversion rates were set by Commission Regulation (EEC) No 1068/93 (8), as last amended by Regulation (EC) No 1053/93 (9);
Whereas application of the rules mentioned above to the present and forecast market situation, in particular to prices of products processed from fruit and vegetables in the Community and in international trade, leads to the refund rates set in the Annex hereto;
Whereas, pursuant to Article 13 (2) of Regulation (EEC) No 426/86, the most efficient possible use should be made of the resources available without creating discrimination between traders; whereas, therefore, care should be taken not to disturb the trade flows previously induced by the refund arrangements;
Whereas the Management Committee for Products Processed from Fruit and Vegetables has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
1. The export refund rates and quantities eligible for refunds in the processed fruit and vegetables sector for licences with advance fixing of the refund issued between 1 July 1995 and 30 June 1996 shall be those fixed in the Annex hereto.
2. Quantities for which licences are issued in the context of food aid, as referred to in Article 14a of Commission Regulation (EEC) No 3719/88 of 18 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (10), as last amended by Regulation (EC) No 1199/95 (11), shall not count against the eligible quantities referred to in the first paragraph.
Article 2
This Regulation shall enter into force on 26 June 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 June 1995.
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*****
COMMISSION REGULATION (EEC) No 1118/90
of 30 April 1990
concerning the stopping of fishing for common sole by vessels flying the flag of Belgium
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (ê1), as amended by Regulation (EEC) No 3483/88 (2), and in particular Article 11 (3) thereof,
Whereas Council Regulation (EEC) No 4047/89 of 19 December 1989 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1990 and certain conditions under which they may be fished (3), as amended by Regulation (EEC) No 738/90 (4), provides for common sole quotas for 1990;
Whereas, in order to ensure compliance with the provisions relating to the quantitative limitations on catches of stocks subject to quotas, it is necessary for the Commission to fix the date by which catches made by vessels flying the flag of a Member State are deemed to have exhausted the quota allocated;
Whereas, according to the information communicated to the Commission, catches of common sole in the waters of ICES division VIIa by vessels flying the flag of Belgium or registered in Belgium have reached the quota allocated for 1990; whereas Belgium has prohibited fishing for this stock as from 25 April 1990; whereas it is therefore necessary to abide by that date;
HAS ADOPTED THIS REGULATION:
Article 1
Catches of common sole in the waters of ICES division VIIa by vessels flying the flag of Belgium or registered in Belgium are deemed to have exhausted the quota allocated to Belgium for 1990.
Fishing for common sole in the waters of ICES division VIIa by vessels flying the flag of Belgium or registered in Belgium is prohibited, as well as the retention on board, the transhipment and the landing of such stock captured by the above mentioned vessels after the date of application of this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It applies from 25 April 1990.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 April 1990.
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Commission Regulation (EC) No 173/2002
of 30 January 2002
on the issuing of system B export licences for 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 2190/96 of 14 November 1996 on detailed rules for implementing Council Regulation (EC) No 2200/96 as regards export refunds on fruit and vegetables(1), as last amended by Regulation (EC) No 298/2000(2), and in particular Article 5(6) thereof,
Whereas:
(1) Commission Regulation (EC) No 2102/2001(3) fixed the indicative quantities laid down for the issue of export licences other than those requested in the context of food aid.
(2) In the light of information now available to the Commission, the indicative quantities have been exceeded in the case of tomatoes, oranges, lemons and table grapes.
(3) Those overruns are without prejudice to compliance with the limits resulting from the agreements concluded in accordance with Article 300 of the Treaty. The rate of refund for all products covered by licences applied for under system B from 16 November 2001 to 14 January 2002 should be the indicative rate,
HAS ADOPTED THIS REGULATION:
Article 1
The percentages for the issuing of system B export licences, as referred to in Article 5 of Regulation (EC) No 2190/96, and applied for between 16 November 2001 and 14 January 2002, by which the quantities applied for and the rates of refund applicable must be multiplied, are as fixed in the Annex hereto.
The above subparagraph does not apply to licences applied for in connection with food-aid operations as provided for in Article 10(4) of the Agreement on Agriculture concluded during the Uruguay Round of multilateral trade negotiations.
Article 2
This Regulation shall enter into force on 31 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 January 2002.
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Commission Regulation (EC) No 1608/2000
of 24 July 2000
laying down transitional measures pending the definitive measures implementing Regulation (EC) No 1493/1999 on the common organisation of the market in wine
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine(1), and in particular Article 80 thereof,
Whereas:
(1) Article 81 of Regulation (EC) No 1493/1999 repeals the following Regulations with effect from 1 August 2000: Council Regulation (EEC) No 1873/84 of 28 June 1984 authorising the offer or disposal for direct human consumption of certain imported wines which may have undergone oenological processes not provided for in Regulation (EEC) No 337/79(2), as last amended by Regulation (EC) No 2839/98(3), Council Regulation (EEC) No 823/87 of 16 March 1987 laying down special provisions relating to quality wines produced in specified regions(4), as last amended by Regulation (EC) No 1426/96(5), Council Regulation (EEC) No 4252/88 of 21 December 1988 on the preparation and marketing of liqueur wines produced in the Community(6), as last amended by Regulation (EC) No 1678/1999(7), Council Regulation (EEC) No 2048/89 of 19 June 1989 laying down general rules on controls in the wine sector(8), Council Regulation (EEC) No 2390/89 of 24 July 1989 laying down general rules for the import of wines, grape juice and grape must(9), as last amended by Regulation (EC) No 2838/98(10), Council Regulation (EEC) No 2391/89 of 24 July 1989 defining certain products in the wine sector falling within CN codes 2009 and 2204, and originating in third countries(11), Council Regulation (EEC) No 2392/89 of 24 July 1989 laying down general rules for the description and presentation of wines and grape musts(12), as last amended by Regulation (EC) No 1427/96(13), Council Regulation (EEC) No 3895/91 of 11 December 1991 laying down rules for the description and presentation of special wines(14), and Council Regulation (EEC) No 2333/92 of 13 July 1992 laying down general rules for the description and presentation of sparkling wines and aerated sparkling wines(15), as last amended by Regulation (EC) No 1429/96(16).
(2) Nevertheless, operators and administrations concerned should be assured of a smooth transition between the often old provisions adopted on the basis of Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organisation of the market in wine(17), repealed by Council Regulation (EEC) No 822/87 of 16 March 1987 on the common organisation of the market in wine(18), in its turn repealed by Regulations (EC) No 1493/1999 and (EEC) No 823/87 and the rules of application of Regulation (EC) No 1493/1999.
(3) In order to permit a smooth transition and continuity of the applicable arrangements pending the imminent finalisation and adoption of the implementing measures, provision should therefore be made for some of the Council provisions repealed by the said Article 81 to continue in force for a brief transitional period. The temporary continuation in force of those provisions entails the Commission Regulations adopted on their basis remaining in force; those Regulations will, however, be explicitly repealed at the end of the transitional period.
(4) Since the key elements of the subject matter of the Regulations referred to in Article 81 have already been regulated in Regulation (EC) No 1493/1999 or in the implementing Regulations adopted to date by the Commission, the transitional period in question does not affect the implementation by the Council on the planned date of the main features of the reform of the common organisation of the market in wine.
(5) However, in order not to burden economic operators and national administrations with measures entering into force on different dates, the date of entry into force of Commission Regulation (EC) No 881/98 of 24 April 1998 laying down detailed rules for the protection of the additional traditional terms used to designate certain types of quality wine produced in specified regions (quality wine psr)(19), as last amended by Regulation (EC) No 2253/1999(20), should be postponed so that all the measures resulting from the reform of the common organisation of the market can be adopted at the same time.
(6) In view of the fact that Regulation (EC) No 1493/1999 repeals the above Council Regulations with effect from 1 August 2000, it is essential that the transitional period begins on that date.
(7) 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
By derogation from certain provisions of Regulation (EC) No 1493/1999, only the provisions listed in the Annex hereto shall remain in force until 30 November 2000.
Article 2
In the Regulations listed in the Annex, reference to Regulations (EEC) No 337/79, (EEC) No 822/87, (EEC) No 823/87 and (EEC) No 2332/92 shall be understood as reference to the corresponding provisions of Regulation (EC) No 1493/1999.
Article 3
In the second paragraph of Article 7 of Regulation (EC) No 881/98, the date "1 August 2000" is replaced by "30 November 2000".
Article 4
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply from 1 August 2000.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 July 2000.
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Commission Regulation (EC) No 64/2002
of 14 January 2002
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1498/98(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 15 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 January 2002.
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COMMISSION REGULATION (EC) No 694/98 of 27 March 1998 fixing the amounts to be paid to recognised olive oil producer organizations and associations thereof for the 1997/98 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organisation of the market in oils and fats (1), as last amended by Regulation (EC) No 1581/96 (2), and in particular Article 20d(4) thereof,
Having regard to Council Regulation (EEC) No 3813/92 of 28 December 1992 on the unit of account and the conversion rates to be applied for the purposes of the common agricultural policy (3), as last amended by Regulation (EC) No 150/95 (4), and in particular Article 6(2) thereof,
Whereas Article 20d of Regulation No 136/66/EEC provides that a percentage of the production aid is to be withheld to help finance the work of the producer organisations and associations thereof;
Whereas Article 8(1) of Commission Regulation (EEC) No 3061/84 of 31 October 1984 laying down detailed rules for the application of the system of production aid for olive oil (5), as last amended by Regulation (EC) No 2455/97 (6), provides that the unit amounts to be paid to producer organisations and associations thereof are to be fixed on the basis of forecasts of the overall sum to be distributed; whereas the amount withheld was fixed for the 1997/98 marketing year by Council Regulation (EC) No 1414/97 (7); whereas the funds which will be available in each Member State as a result of the abovementioned amount withheld must be redistributed to those eligible in a suitable manner;
Whereas to ensure that the distribution of funds among the producer organisations and associations is uniformly implemented, and with a view to clarity, a specific operative event should be established for the agricultural conversion rate for the amounts fixed; whereas, given the nature of the measure and to facilitate the management thereof, 1 February 1998 should be fixed as the operative event;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS REGULATION:
Article 1
For the 1997/98 marketing year, the amounts provided for in Article 8(1)(a) and (b) of Regulation (EEC) No 3061/84 shall be as follows:
- for Spain: ECU 7 and ECU 2 respectively,
- for Portugal: ECU 0 and ECU 4,5 respectively,
- for Greece: ECU 2,6 and ECU 2,6 respectively,
- for France: ECU 1,5 and ECU 1,5 respectively,
- for Italy: ECU 2,4 and ECU 2,4 respectively.
Article 2
The amounts referred to in Article 1 shall be converted into national currency using the agricultural conversion rate in force on 1 February 1998.
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, 27 March 1998.
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Council Directive 2003/85/EC
of 29 September 2003
on Community measures for the control of foot-and-mouth disease repealing Directive 85/511/EEC and Decisions 89/531/EEC and 91/665/EEC and amending Directive 92/46/EEC
(Text with EEA relevance)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 37(3) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the Opinion of the European Parliament(2),
Having regard to the Opinion of the European Economic and Social Committee(3),
Having regard to the Opinion of the Committee of the Regions(4),
Whereas:
(1) One of the Community's tasks in the veterinary field is to improve the state of health of livestock, thereby increasing the profitability of livestock farming and facilitating trade in animals and animal products. At the same time the Community is also a Community of values, and its policies to combat animal diseases must not be based purely on commercial interests but must also take genuine account of ethical principles.
(2) Foot-and-mouth disease is a highly contagious viral disease of biungulates. Although foot-and-mouth disease has no public health importance, due to its exceptional economic importance, it is on the top of list A diseases of the Office International des Epizooties (OIE).
(3) Foot-and-mouth disease is a compulsorily notifiable disease and outbreaks must be notified by the Member State affected to the Commission and other Member States, in accordance with Council Directive 82/894/EEC of 21 December 1982, on the notification of animal diseases within the Community(5).
(4) The Community measures for the control of foot-and-mouth disease are laid down in Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease(6). That Directive has been significantly amended on many occasions. Now that new amendments are being made to the said Directive, it is desirable, in order to clarify matters, that the provisions in question should be recast.
(5) Following the adoption of Council Directive 90/423/EEC of 26 June 1990 amending Directive 85/511/EEC, Directive 64/432/EEC on animal health problems affecting intra-Community trade in bovine animals and swine and Directive 72/462/EEC on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat or meat products from third countries(7), prophylactic vaccination against foot-and-mouth disease was prohibited throughout the Community as of 1 January 1992.
(6) Preventive measures are necessary to avoid the incursion of foot-and-mouth disease into the Community and into Community livestock from neighbouring countries or through the introduction into the Community of live animals and products of animal origin. There is no indication that any of the outbreaks of foot-and-mouth disease reported since the prohibition of prophylactic vaccination can be attributed to imports in accordance with Community legislation and subject to veterinary checks at border inspection posts, established in accordance with 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(8), and Council Directive 90/675/EEC of 10 December 1990 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries(9).
(7) Nevertheless, strict application of the Community rules on imports of animal products aimed at reducing risks should be strongly emphasised, if for no other reason than the increase in trade and movement of persons worldwide. The Member States should ensure that this legislation is implemented in its entirety and make enough personnel and resources available to provide strict controls on the external borders.
(8) In addition, the European Parliament's Temporary Committee on Foot-and-Mouth Disease found that, in practice, border inspections are failing to prevent significant quantities of meat and meat products from entering the Community illegally.
(9) Under the conditions of the single market and the overall satisfactory health status of livestock herds, the exchange of animals and animal products has increased substantially and certain regions of the Community have densely populated livestock areas.
(10) The foot-and-mouth disease epidemic in certain Member States in 2001 demonstrated that due to intensive movement of and trade in animals susceptible to foot-and-mouth disease, an outbreak can quickly take on epizootic proportions, causing disturbances on a scale liable to reduce sharply the profitability of farming of animals of susceptible species and other parts of the rural economy and also requiring substantial financial resources to compensate farmers and the application of control measures.
(11) During the 2001 foot-and-mouth disease crisis, the Commission reinforced the Community control measures for foot-and-mouth disease laid down in Directive 85/511/EEC by adopting protective measures in accordance with Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market(10), and Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market(11).
(12) In 2001, the Commission also adopted Decisions on the conditions for the use of emergency vaccination in accordance with Directive 85/511/EEC. Those conditions were laid down taking account of the recommendations contained in the report of the Scientific Committee on Animal Health and Animal Welfare on the strategy for emergency vaccination against foot-and-mouth disease of 1999.
(13) This Directive should take into account the report of expert groups from Member States on a review of Community legislation on foot-and-mouth disease of 1998, which reflects the experience gained by Member States during the classical swine fever epidemic in 1997, and the conclusions of the International Conference on the Prevention and Control of Foot-and-Mouth Disease held in Brussels in December 2001.
(14) The Resolution of 17 December 2002 of the European Parliament on the foot-and-mouth disease epidemic in 2001 in the European Union(12), based on the conclusions of the Temporary Committee on Foot-and-Mouth Disease of the European Parliament should be taken into account in this Directive.
(15) The recommendations in the Report of the Thirtieth Session of the European Commission for the Control of Foot-and-Mouth Disease of the Food and Agriculture Organisation on minimum standards for laboratories working with foot-and-mouth virus in vitro and in vivo of 1993, should be taken into account.
(16) This Directive should also take into account the changes made in the Animal Health Code and the Manual of Standards for Diagnostic Tests and Vaccines of the OIE (OIE Manual).
(17) In order to ensure early detection of any possible outbreak of foot-and-mouth disease, legal provisions are necessary to oblige those in contact with animals of susceptible species to notify any suspect case to the competent authorities. Regular inspections should be introduced in the Member States to ensure that farmers are in fact familiar with and are applying the general rules on disease control and biosecurity.
(18) It is necessary that action be taken as soon as the presence of the foot-and-mouth disease is suspected so that immediate and effective control measures can be implemented once its presence is confirmed. Such measures should be modulated by the competent authorities depending on the epidemiological situation in the Member State concerned. However, the measures should also be reinforced by specific protection measures established in accordance with Community legislation.
(19) A rapid and detailed diagnosis of the disease and identification of the relevant virus should be carried out under the auspices of a network of national laboratories in the Member States. Where necessary, cooperation between the national laboratories should be ensured by a Community reference laboratory designated by the Commission in accordance with the procedure of the Standing Committee on the Food Chain and Animal Health established by Regulation (EC) No 178/2002 of the European Parliament and the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety(13).
(20) With regard to the differential laboratory diagnosis for foot-and-mouth disease, account should be taken of Commission Decision 2000/428/EC of 4 July 2000 establishing diagnostic procedures, sampling methods and criteria for the evaluation of the results of laboratory tests for the confirmation and differential diagnosis of swine vesicular disease(14).
(21) Community measures for the control of foot-and-mouth disease should be based first of all on depopulation of the infected herd. The killing of infected and contaminated animals of susceptible species should be carried out without delay in accordance with Council Directive 93/119/EEC of 22 December 1993 on the protection of animals at the time of slaughter or killing(15). Where possible the processing of the carcasses of dead or killed animals should be carried out in accordance with Regulation (EC) No 1774/2002 of the European Parliament and of the Council of 3 October 2002 laying down health rules concerning animal by-products not intended for human consumption(16).
(22) It is necessary to integrate public health and environment protection aspects in the event of a foot-and-mouth disease outbreak, in particular by establishing close cooperation between the veterinary health and environment competent authorities. Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control(17) requires an integrated environmental permit for installations for the disposal or recycling of animal carcasses and animal waste with a specified treatment capacity. Unnecessary risks from burning animal carcasses on pyres or burying them at mass burial sites should be avoided.
(23) It is necessary to prevent any spread of the disease as soon as an outbreak occurs by carefully monitoring movements of animals and the use of products liable to be contaminated, and where appropriate, in particular in densely populated livestock areas, by emergency vaccination.
(24) The action taken to control the foot-and-mouth diesease epidemics which struck certain Member States in 2001 has shown that international and Community rules and the ensuing practices have not taken sufficient account of the possibility offered by the use of emergency vaccination and subsequent tests to detect infected animals in a vaccinated population. Too much importance was attached to the trade-policy aspects, with the result that protective vaccination was not carried out even when it had been authorised.
(25) Various strategies are available for controlling foot-and-mouth disease. In the event of an epidemic, the choice of strategy to control the disease should likewise take account of which strategy causes the least possible economic damage for non-agricultural sectors of the economy.
(26) By means of emergency vaccination without subsequent killing of the vaccinated animals the number of animals to be killed for disease control purposes may be reduced significantly. Appropriate testing should thereafter substantiate the absence of infection.
(27) Cleansing and disinfection should be an integral part of the Community control policy for foot-and-mouth disease. The use of disinfectants should be in compliance with Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market(18).
(28) Semen, ova and embryos collected from animals of susceptible species infected with the foot-and-mouth disease virus may contribute to the spread of the disease and should therefore be subject to restrictions in addition to those animal health conditions laid down for intra-Community trade in the following Directives:
- Council Directive 88/407/EEC of 14 June 1988 laying down the animal health requirements applicable to intra-Community trade in and imports of deep-frozen semen of domestic animals of the bovine species(19);
- Council Directive 89/556/EEC of 25 September 1989 on animal health conditions governing intra-Community trade in and importations from third countries of embryos of domestic animals of the bovine species(20);
- 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(21).
(29) In the event of an outbreak it may be necessary to apply control measures not only to infected animals of susceptible species, but also to contaminated animals of species not susceptible to the disease which may be mechanical vectors for the virus. During the 2001 foot-and-mouth disease epidemic, restrictions were also applied on the movement of equidae coming from holdings keeping animals of susceptible species or neighbouring such holdings and specific certification, in addition to the requirements of Council Directive 90/426/EEC of 26 June 1990 on animal health conditions governing the movement and import from third countries of equidae(22), was required in order to control trade in equidae from Member States affected by foot-and-mouth disease.
(30) With regard to animal health, the conditions governing placing on the market, trade and imports into the Community of animal products intended for human consumption are laid down in the following Directives:
- Council Directive 64/433/EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat(23);
- Council Directive 77/99/EEC of 21 December 1976 on health problems affecting the intra-Community trade of meat products origin(24);
- Council Directive 80/215/EEC of 22 January 1980 on animal health problems affecting intra-Community trade in meat products(25);
- Council Directive 91/495/EEC of 27 November 1990 concerning public health and animal health problems affecting the production and placing on the market of rabbit meat and farmed game meat(26);
- Council Directive 94/65/EC of 14 December 1994 laying down the requirements for the production and placing on the market of minced meat and meat preparations(27),
- 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(28).
(31) Those Directives are now in the process of being replaced. In order to ease reference, the treatment of meat and meat products from animals of susceptible species, required to ensure the destruction of possible foot-and-mouth disease virus, is specified in the Annexes VII to IX of this Directive which are based on those Directives and comply with recommendations of the OIE.
(32) The animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption are laid down in Council Directive 2002/99/EC of 16 December 2002(29).
(33) Council Directive 92/46/EEC of 16 June 1992 laying down the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products(30) provides for the treatment of milk from animals kept within the perimeters of surveillance zones established in accordance with Community control measures for foot-and-mouth disease. The requirements of that Directive are not sufficient, as they do not provide for treatment of milk from protection zones and from vaccinated animals. In addition, the treatment for milk for human consumption provided for in that Directive exceeds the requirements of the code of the OIE on destruction of foot-and-mouth disease virus in milk and results in logistic problems in the disposal of substantial quantities of milk refused by dairy plants. More detailed provisions on the collection and transport of milk from animals of susceptible species in areas subject to control measures for foot-and-mouth disease should be included in this Directive. The treatment of milk and milk products specified in Annex IX of this Directive complies with recommendations of the OIE for the destruction of possible foot-and-mouth disease virus in milk and milk products. Directive 92/46/EEC should therefore be amended accordingly.
(34) With regard to products of animal origin account should be taken of Council Directive 92/118/EEC of 17 December 1992 laying down animal health and public health requirements governing trade in and imports into the Community of products not subject to the said requirements laid down in specific Community rules referred to in Annex A (I) to Directive 89/662/EEC and, as regards pathogens, to Directive 90/425/EEC(31). Certain provisions of Directive 92/118/EEC have been included in Regulation (EC) No 1774/2002.
(35) The application of the principle of regionalisation should allow the implementation of strict control measures, including emergency vaccination, in a defined part of the Community without endangering general Community interests. Dairy and meat products from vaccinated animals may be placed on the market in accordance with the relevant Community legislation and this Directive in particular.
(36) Directive 64/432/EEC provides for the definition of regions. Commission Decision 2000/807/EC of 11 December 2000 laying down the codified form and the codes for the notification of animal diseases pursuant to Council Directive 82/894/EEC(32) specifies administrative areas in Member States related to disease control measures and disease notification.
(37) To guard against emergencies, the Community has, in accordance with Council Decision 91/666/EEC of 11 December 1991 establishing Community reserves of foot-and-mouth disease vaccines(33), established reserves of inactivated foot-and-mouth disease virus antigen stored at designated premises, and the Community antigen and vaccine bank. Transparent and efficient procedures should be established to guarantee access to the antigen without undue delay. In addition, certain Member States have established and maintain national antigen and vaccine banks.
(38) 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(34) requires that, with only minor exceptions, all veterinary medicinal products that are placed on the market within the Community hold a marketing authorisation. In addition, that Directive lays down the criteria for the granting of a marketing authorisation for veterinary medicinal products, including immunological veterinary medicinal products. That Directive authorises Member States to permit release onto their market of a product without a marketing authorisation in the event of a serious epidemic under certain conditions. Foot-and-mouth disease has the potential for a serious epidemic. Given the rapid variation of antigen required to produce an effective protection of animals of susceptible species in case of emergency, vaccines against foot-and-mouth disease qualify for the derogation provided for in that Directive.
(39) The Community Reference Laboratory should advise the Commission and the Member States on the need for vaccines and antigens, in particular where virus strains are detected against which the vaccines produced on the basis of those antigens stored in the Community antigen and vaccine bank do not provide sufficient protection.
(40) As a matter of precaution, in relation to the risks of a deliberate release of foot-and-mouth disease virus, it is appropriate to apply specific procedures to the procurement of antigens for the Community antigen and vaccine bank and to the publication of certain details relating to disease control measures.
(41) The presence of an entirely non-immune population of susceptible livestock in Member States requires permanent disease-awareness and preparedness. The need for detailed contingency plans has been proven once more during the 2001 foot-and-mouth disease epidemic. At present, all Member States have contingency plans approved by Commission Decision 93/455/EEC of 23 July 1993 approving certain contingency plans for the control of foot-and-mouth-disease(35). Such contingency plans should be reviewed regularly, among other things, in the light of the results of real-time alert exercises carried out in the Member States, the experience of the 2001 epidemic and in order to include measures to protect the environment. Member States should be encouraged to organise and carry out such exercises in close cooperation and across borders. The Commission should be encouraged, in cooperation with the Member States, to make provision for the setting-up of technical assistance which could be made available to Member States affected by an epidemic.
(42) In order to protect Community livestock and based on risk assessment, provision should be made to assist neighbouring third countries infected by or at risk of foot-and-mouth disease, in particular as regards the emergency supply of antigen or vaccines. However, such provisions should apply without prejudice to agreements concluded between the third country concerned and the Community on access to the Community antigen and vaccine bank.
(43) Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field(36), applies in the event of the occurrence of foot-and-mouth disease and provides for Community aid to be granted to reference laboratories and antigen and vaccine banks. Any Community compensation paid to Member States for financial expenditures relating to control measures in the case of outbreaks of foot-and-mouth disease, should be subject to scrutiny regarding compliance with at least the minimum requirements laid down in this Directive.
(44) In order to ensure close cooperation between the Member States and the Commission in controlling foot-and-mouth disease and taking into account the nature of the disease, the Commission should be empowered to modify and adapt certain technical aspects of the control measures. Where necessary, the Commission should base any such modifications or adaptations on the results of a veterinary inspection mission carried out in accordance with Commission Decision 98/139/EC of 4 February 1998 laying down certain detailed rules concerning on-the-spot checks carried out in the veterinary field by Commission experts in the Member States(37).
(45) The Member States should lay down rules on penalties applicable to infringements of the provisions of this Directive and ensure that they are implemented. Those penalties must be effective, proportionate and dissuasive.
(46) In accordance with the principle of proportionality, it is necessary and appropriate for the achievement of the basic objective of maintaining and, in the event of an outbreak, of quick recovery of a foot-and-mouth disease and infection-free status of all Member States, to lay down rules on the measures to increase disease preparedness and to control outbreaks as quickly as possible, if necessary by emergency vaccination, and to limit the adverse effects on the production of and trade in livestock and products of animal origin. This Directive does not go beyond what is necessary in order to achieve the objectives pursued in accordance with the third paragraph of Article 5 of the Treaty.
(47) 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(38),
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
SUBJECT MATTER, SCOPE AND DEFINITIONS
Article 1
Subject matter and scope
1. This Directive sets out:
(a) the minimum control measures to be applied in the event of an outbreak of foot-and-mouth disease of whatever type of virus;
(b) certain preventative measures aimed at increasing awareness and preparedness of the competent authorities and the farming community for foot-and-mouth disease.
2. Member States shall remain free to take more stringent action in the field covered by this Directive.
Article 2
Definitions
For the purposes of this Directive the following definitions shall apply:
(a) "animal of a susceptible species" means any domestic or wild animal of the suborders Ruminantia, Suina, and Tylopoda of the order Artiodactyla;
For specific measures, notably in application of Article 1(2), Article 15 and Article 85(2), other animals, such as for example of the order Rodentia or Proboscidae, may be considered susceptible to foot-and-mouth disease in accordance with scientific evidence.
(b) "holding" means any agricultural or other premises, including circuses, located in the national territory of a Member State where animals of susceptible species are being bred or kept on a permanent or temporary basis.
However, for the purpose of Article 10(l) this definition does not include living areas for humans on such premises, unless animals of susceptible species, including those referred to in Article 85(2), are kept on a permanent or temporary basis therein, slaughterhouses, means of transport, border inspection posts or fenced areas where animals of susceptible species are kept and may be hunted, if such fenced areas are of a size which makes the measures provided for in Article 10 inapplicable;
(c) "herd" means an animal or group of animals kept on a holding as an epidemiological unit; if more than one herd is kept on a holding, each of these herds shall form a distinct unit and shall have the same health status;
(d) "owner" means any person or persons, either natural or legal, having ownership of an animal of a susceptible species, or charged with keeping such animals, whether or not for financial reward;
(e) "competent authority" means the authority of a Member State competent to carry out veterinary or zootechnical checks or any authority to which it has delegated that competence;
(f) "official veterinarian" means the veterinarian designated by the competent authority of the Member State;
(g) "authorisation" means a written authorisation given by the competent authorities, of which the necessary copies must be available for subsequent inspections in accordance with the appropriate legislation in the Member State concerned;
(h) "incubation period" means the length of the time between infection and the occurrence of clinical signs of foot-and-mouth disease. Namely, for the purposes of this Directive, 14 days for bovine and porcine animals, and 21 days for ovine and caprine animals and any other animal of susceptible species;
(i) "animal suspected of being infected" means any animal of a susceptible species exhibiting clinical symptoms or showing post-mortem lesions or reactions to laboratory tests which are such that the presence of foot-and-mouth disease may reasonably be suspected;
(j) "animal suspected of being contaminated" means any animal of a susceptible species which, according to the epidemiological information collected, may have been directly or indirectly exposed to the foot-and-mouth disease virus;
(k) "case of foot-and-mouth disease" or "animal infected with foot-and-mouth disease" means any animal of a susceptible species or carcass of such animal in which foot-and-mouth disease has been officially confirmed, taking into account the definitions in Annex I:
- either on clinical symptoms or post-mortem lesions consistent with foot-and-mouth disease have been officially confirmed, or
- as the result of a laboratory examination carried out in accordance with Annex XIII;
(l) "outbreak of foot-and-mouth disease" means a holding where animals of susceptible species are kept, which meets one or more of the criteria set out in Annex I;
(m) "primary outbreak" means the outbreak within the meaning of Article 2(d) of Directive 82/894/EEC;
(n) "killing" means the killing of animals within the meaning of Article 2(6) of Directive 93/119/EEC;
(o) "emergency slaughter" means the slaughter in emergency cases within the meaning of Article 2(7) of Directive 93/119/EEC of animals which on the basis of epidemiological data or clinical diagnosis or results of laboratory testing are not considered infected or contaminated with foot-and mouth disease virus, including slaughter for reasons of animal welfare;
(p) "processing" means one of the treatments for high risk material laid down in Regulation (EC) No 1774/2002, and any implementing legislation thereof, applied in such a way as to avoid the risk of spread of foot-and-mouth disease virus;
(q) "regionalisation" means the delimitation of a restricted zone in which restrictions are applied on the movements of or trade in certain animals or animal products as provided for in Article 45 in order to prevent the spread of foot-and-mouth disease into the free zone where no restrictions are applied in accordance with this Directive;
(r) "region" means an area as defined in Article 2(2) (p) of Directive 64/432/EEC;
(s) "sub-region" means an area specified in the Annex to Decision 2000/807/EC;
(t) "Community antigen and vaccine bank" means appropriate premises designated in accordance with this Directive for the storage of Community reserves of both concentrated inactivated antigen of the foot-and-mouth disease virus for the production of foot-and-mouth disease vaccines and veterinary immunological products (vaccines) reconstituted from such antigens and authorised 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(39);
(u) "emergency vaccination" means vaccination in accordance with Article 50(1);
(v) "protective vaccination" means emergency vaccination carried out on holdings in a designated area in order to protect animals of susceptible species within this area against airborne spread or spread through fomites of foot-and-mouth disease virus and where the animals are intended to be kept alive following vaccination;
(w) "suppressive vaccination" means emergency vaccination which is carried out exclusively in conjunction with a stamping-out policy in a holding or area where there is an urgent need to reduce the amount of foot-and-mouth disease virus circulating and to reduce the risk of it spreading beyond the perimeters of the holding or the area and where the animals are intended to be destroyed following vaccination;
(x) "wild animal" means an animal of a susceptible species living outside holdings as defined in Article 2(b) or premises referred to in Articles 15 and 16;
(y) "primary case of foot-and-mouth disease in wild animals" means any case of foot-and-mouth disease which is detected in a wild animal in an area in which no measures are in place in accordance with Article 85(3) or (4).
CHAPTER II
CONTROL OF OUTBREAKS OF FOOT-AND-MOUTH DISEASE
SECTION 1
NOTIFICATION
Article 3
Foot-and-mouth disease notification
1. Member States shall ensure that:
(a) foot-and-mouth disease is listed by the competent authority as a compulsorily notifiable disease;
(b) the owner and any person attending animals, accompanying animals during transport or looking after animals shall be obliged to notify without delay to the competent authority or the official veterinarian the presence or suspected presence of foot-and-mouth disease and keep animals infected with foot-and-mouth disease or animals suspected of being infected, away from places where other animals of susceptible species are at risk of being infected or contaminated with the foot-and-mouth disease virus;
(c) veterinary practitioners, official veterinarians, senior staff of veterinary or other official or private laboratories and any person with a occupational relation to animals of susceptible species or products derived from such animals shall be obliged to notify without delay to the competent authority any knowledge of the presence or suspected presence of foot-and-mouth disease they have obtained prior to official intervention within the framework of this Directive.
2. Without prejudice to existing Community legislation on notification of outbreaks of animal disease, the Member State on whose territory an outbreak of foot-and-mouth disease or a primary case of foot-and-mouth disease in wild animals is confirmed shall give notification of the disease and provide information and written reports to the Commission and the other Member States in accordance with Annex II.
SECTION 2
MEASURES IN CASE OF SUSPICION OF AN OUTBREAK OF FOOT-AND-MOUTH DISEASE
Article 4
Measures in case of suspicion of an outbreak of foot-and-mouth disease
1. Member States shall ensure that the measures provided for in paragraphs 2 and 3 are carried out where a holding contains one or more animals suspected of being infected or contaminated.
2. The competent authority shall immediately activate official investigation arrangements under its supervision to confirm or rule out the presence of the foot-and-mouth disease and, in particular, have the necessary samples taken for the laboratory examinations required to confirm an outbreak in accordance with the definition of outbreak in Annex I.
3. The competent authority shall place the holding referred to in paragraph 1 under official surveillance as soon as the suspected infection is notified and shall in particular ensure that:
(a) a census is made of all categories of animals on the holding and that, in respect of each category of animals of susceptible species, the number of animals that are already dead and the animals suspected of being infected or of being contaminated, is recorded;
(b) the census as referred to in point (a) is kept up to date to take account of those animals of susceptible species born or dying during the period of suspicion. Such information is produced by the owner on request of the competent authority and is checked by that authority at each visit;
(c) all stocks of milk, milk products, meat, meat products, carcasses, hides and skins, wool, semen, embryos, ova, slurry, manure as well as animal feed and litter on the holding are recorded and those records are maintained;
(d) no animals of susceptible species enter or leave the holding, except in cases of holdings consisting of different epidemiological production units referred to in Article 18, and that all animals of susceptible species on the holding are kept in their living quarters or another place where they can be isolated;
(e) appropriate means of disinfection are used at the entrances and exits of buildings or places housing animals of susceptible species and of the holding itself;
(f) an epidemiological inquiry is carried out in accordance with Article 13;
(g) to facilitate the epidemiological inquiry, the necessary samples shall be taken for laboratory testing in accordance with point 2.1.1.1 of Annex III.
Article 5
Movements onto and off a holding in case of suspicion of an outbreak of foot-and-mouth disease
1. Member States shall ensure that in addition to the measures provided for in Article 4, all movement onto and off a holding where there is a suspicion of an outbreak of foot-and-mouth disease is prohibited. That prohibition shall apply in particular to:
(a) movement from the holding of meat or carcasses, meat products, milk or milk products, semen, ova or embryos of animals of susceptible species or of animal feed, utensils, objects or other substance, such as wool, hides and skins, bristles or animal waste, slurry, manure or anything liable to transmit foot-and-mouth disease virus;
(b) movement of animals of species not susceptible to foot-and-mouth disease;
(c) movement of persons onto or out of the holding;
(d) movement of vehicles onto or out of the holding.
2. By way of derogation from the prohibition in point (a) of paragraph 1, the competent authority may in the event of difficulties in storing the milk on the holding either order that the milk shall be destroyed on the holding, or authorise the milk to be transported under veterinary supervision and only by means of transport suitably equipped to ensure no risk of spreading foot-and-mouth disease virus from the holding to the nearest possible place for disposal or treatment ensuring destruction of the foot-and-mouth disease virus.
3. By way of derogation from the prohibitions provided for in points (b), (c) and (d) of paragraph 1, the competent authority may authorise such movements onto and off the holding subject to all conditions necessary in order to avoid the spread of foot-and-mouth disease virus.
Article 6
Extension of measures to other holdings
1. The competent authority shall extend the measures provided for in Articles 4 and 5 to other holdings where their location, their construction and layout, or contacts with animals from the holding referred to in Article 4, give reason to suspect contamination.
2. The competent authority shall apply at least the measures provided for in Articles 4 and 5(1) to premises or means of transport referred to in Article 16 should the presence of animals of susceptible species give reason to suspect infection or contamination with the foot-and-mouth disease virus.
Article 7
Temporary control zone
1. The competent authority may establish a temporary control zone, where required by the epidemiological-situation, and in particular when that situation involves a high density of animals of susceptible species, intensive movement of animals or persons in contact with animals of susceptible species, delays in suspect status notifications, or insufficient information on the possible origin and ways of introduction of the foot-and-mouth disease virus.
2. At least the measures provided for in Article 4(2) and (3)(a), (b) and (d) and in Article 5(1) shall be applied to holdings in the temporary control zone where animals of susceptible species are kept.
3. The measures applied in the temporary control zone may be supplemented by a temporary ban on movements of all animals in a larger area or on the whole of the territory of a Member State. However, the ban on movement of animals of species not susceptible to foot-and-mouth disease shall not exceed 72 hours, unless justified by exceptional circumstances.
Article 8
Preventive eradication programme
1. The competent authority may, where epidemiological information or other evidence indicates, implement a preventive eradication programme, including preventive killing of animals of susceptible species likely to be contaminated and, if necessary, of animals from epidemiologically-linked production units or adjoining holdings.
2. In that event, the taking of samples and clinical examinations of animals of susceptible species shall be carried out at least in accordance with point 2.1.1.1 of Annex III.
3. The competent authority shall notify the Commission prior to the implementation of the measures provided for in this Article.
Article 9
Maintenance of measures
Member States shall not withdraw the measures provided for in Articles 4 to 7 until the suspicion of foot-and-mouth disease has been officially ruled out.
SECTION 3
MEASURES IN CASE OF CONFIRMATION
Article 10
Measures in case of confirmation of an outbreak of foot-and-mouth disease
1. As soon as an outbreak of foot-and-mouth disease is confirmed, Member States shall ensure that, in addition to the measures provided for in Articles 4 to 6 the following measures are also applied without delay on the holding:
(a) All animals of susceptible species shall be killed on-the-spot.
In exceptional circumstances the animals of susceptible species may be killed at the nearest suitable place for that purpose under official supervision and in such a way as to avoid the risk of spreading foot-and-mouth disease virus during transport and killing. The Member State concerned shall notify the Commission about the existence of such exceptional circumstances, and the action taken.
(b) The official veterinarian shall ensure that before or during the killing of the animals of susceptible species all appropriate samples needed for the epidemiological inquiry referred to in Article 13 have been taken in accordance with point 2.1.1.1 of Annex III, and in sufficient numbers.
The competent authority may decide that Article 4(2) shall not apply in cases of appearance of a secondary source which is epidemiologically linked with a primary source for which samples have already been taken in accordance to that Article, provided that appropriate and sufficient numbers of samples needed for the epidemiological inquiry referred to in Article 13 have been taken.
(c) The carcasses of animals of susceptible species which have died on the holding and the carcasses of animals which have been killed in accordance with point (a) shall be processed without undue delay under official supervision in such a way that there is no risk of spreading foot-and-mouth disease virus. Where particular circumstances require the carcasses to be buried or burned, on site or off site, such operations shall be carried out in conformity with the instructions prepared in advance in the framework of the contingency plans referred to in Article 72.
(d) All products and substances referred to in Article 4(3)(c) shall be isolated until contamination can be ruled out, or treated in accordance with the instructions of the official veterinarian in such a way as to ensure the destruction of any foot-and-mouth disease virus, or processed.
2. After the killing and processing of the animals of susceptible species and the completion of the measures provided for in paragraph 1(d), Member States shall ensure that:
(a) the buildings used for housing animals of susceptible species, their surroundings and the vehicles used for their transportation, as well as all other buildings and equipment likely to be contaminated shall be cleaned and disinfected in accordance with Article 11;
(b) in addition, where there is a reasonable suspicion that the living area for humans or the office area of the holding are contaminated with the foot-and-mouth disease virus, these areas shall also be disinfected by appropriate means;
(c) restocking of animals is carried out in accordance with Annex V.
Article 11
Cleansing and disinfection
1. Member States shall ensure that cleansing and disinfection operations, as integral parts of the measures provided for in this Directive, are adequately documented and are carried out under official supervision and in accordance with the instructions given by the official veterinarian, using disinfectants and working concentrations of such disinfectants officially authorised and registered for placing on the market by the competent authority as veterinary hygiene biocidal products in accordance with Directive 98/8/EC, in order to ensure destruction of the foot-and-mouth disease virus.
2. Member States shall ensure that cleansing and disinfection operations, which shall include appropriate pest control, are carried out in a way to reduce as much as possible any adverse environmental impact that may arise from such operations.
3. Member States shall endeavour to ensure that any disinfectants used, in addition to being able to disinfect effectively, also have the lowest possible adverse impacts on the environment and public health in accordance with best available technology.
4. Member States shall ensure that cleansing and disinfection operations are carried out in accordance with Annex IV.
Article 12
Tracing and treatment of products and substances derived from or having been in contact with animals of an outbreak of foot-and-mouth disease
Member States shall ensure that the products and substances referred to in Article 4(3)(c) of animals of susceptible species collected from a holding where an outbreak of foot-and-mouth disease has been confirmed and semen, ova and embryos collected from animals of susceptible species present on that holding, during the period between the probable introduction of the disease to the holding and the implementation of official measures, shall be traced and processed or, in the case of substances other than semen, ova and embryos, be treated under official supervision and in such a way as to ensure destruction of foot-and-mouth disease virus and to avoid any risk of it spreading further.
Article 13
Epidemiological inquiry
1. Member States shall ensure that epidemiological inquiries in relation to outbreaks of foot-and-mouth disease are carried out by specifically trained veterinarians on the basis of questionnaires, prepared within the framework of the contingency plans provided for in Article 72, to ensure standardised, speedy and targeted inquiries. Such inquiries shall deal at least with:
(a) the length of time during which the foot-and-mouth disease may have been present on a holding before being suspected or notified;
(b) the possible origin of the foot-and-mouth disease virus on a holding and the identification of other holdings where there are animals suspected of being infected or animals suspected of being contaminated from the same source;
(c) the possible extent to which animals of susceptible species other than bovine and porcine animals may have been infected or contaminated;
(d) the movement of animals, persons, vehicles and the substances referred to in Article 4(3)(c) likely to have carried the foot-and-mouth disease virus to or from the holdings in question.
2. Member States shall inform and regularly update the Commission and the other Member States about the epidemiology and spread of the foot-and-mouth disease virus.
Article 14
Additional measures in case of confirmation of outbreaks of foot-and-mouth disease
1. The competent authority may order that, besides the animals of susceptible species, animals of species not susceptible to foot-and-mouth disease on the holding where an outbreak of foot-and-mouth disease has been confirmed shall also be killed and processed of in such a way as to avoid any risk of spreading the foot-and-mouth disease virus.
However, the first subparagraph shall not apply to animals of species not susceptible to foot-and-mouth disease which may be isolated, effectively cleansed and disinfected, and provided that they are individually identified, in the case of equidae in accordance with Community legislation, so as to allow the control of their movement.
2. The competent authority may apply the measures provided for in Article 10(1)(a) on epidemiologically-linked production units or adjoining holdings, where epidemiological information or other evidence give reason to suspect a possible contamination of those holdings. The intention to make use of those provisions shall be notified to the Commission, where possible, prior to implementation. In this event, the measures regarding taking of samples and clinical examinations of animals shall be carried out at least as set out in point 2.1.1.1 of Annex III.
3. The competent authority shall, immediately upon confirmation of the first outbreak of foot-and-mouth disease prepare all arrangements necessary for emergency vaccination in an area of at least the size of the surveillance zone established in accordance with Article 21.
4. The competent authority may apply the measures provided for in Articles 7 and 8.
SECTION 4
MEASURES TO BE APPLIED IN SPECIAL CASES
Article 15
Measures to be applied in case of an outbreak of foot-and-mouth disease in the vicinity or within certain specific premises keeping on a temporary or regular basis animals of susceptible species
1. Where an outbreak of foot-and-mouth disease threatens to infect animals of susceptible species in a laboratory, zoo, wildlife park, and fenced area or in bodies, institutes or centres approved in accordance with Article 13(2) of Directive 92/65/EEC and where animals are kept for scientific purposes or purposes related to conservation of species or farm animal genetic resources, the Member State concerned shall ensure that all appropriate bio-security measures are taken to protect such animals from infection. Those measures may include restricting access to public institutions or making such access subject to special conditions.
2. Where an outbreak of foot-and-mouth disease is confirmed in one of the premises referred to in paragraph 1, the Member State concerned may decide to derogate from Article 10(1)(a), provided that basic Community interests, and in particular the animal health status of other Member States, are not endangered and that all necessary measures are in place to prevent any risk of spreading foot-and-mouth disease virus.
3. The decision referred to in paragraph 2 shall immediately be notified to the Commission. In the case of farm animal genetic resources, this notification shall include a reference to the list of premises established in accordance with Article 77(2)(f), by which the competent authority has identified these premises in advance as breeding nucleus of animals of susceptible species indispensable for the survival of a breed.
Article 16
Measures to be applied in slaughterhouses, border inspection posts and means of transportation
1. Where a case of foot-and-mouth disease is confirmed in a slaughterhouse, a border inspection post established in accordance with Directive 91/496/EEC or in a means of transport, the competent authority shall ensure that the following measures are carried out in relation to the affected premises or means of transport:
(a) all animals of susceptible species in such premises or means of transport shall be killed without delay;
(b) the carcasses of the animals referred to in paragraph (a) shall be processed under official supervision in such a way as to avoid the risk of foot-and-mouth disease virus spreading;
(c) other animal waste, including offal, of infected or suspected of being infected and contaminated animals shall be processed under official supervision in such a way as to avoid the risk of foot-and-mouth disease virus spreading;
(d) dung, manure and slurry shall be subject to disinfection and shall only be removed for treatment in accordance with point 5 of Section II in Part A of Chapter III of Annex VIII to Regulation (EC) No 1774/2002;
(e) cleansing and disinfection of buildings and equipment, including vehicles or means of transport, shall take place under the supervision of the official veterinarian in accordance with Article 11 and with the instructions laid down by the competent authority;
(f) an epidemiological inquiry shall be carried out in accordance with Article 13.
2. Member States shall ensure that the measures provided for in Article 19 are applied in contact holdings.
3. Member States shall ensure that no animals are reintroduced for slaughter, inspection or transport in the premises or means of transport referred to in paragraph 1 until at least 24 hours after completion of the cleansing and disinfection operations referred to in paragraph 1(e).
4. Where required by the epidemiological situation, in particular where contamination of animals of susceptible species in holdings adjacent to the premises ore means of transport referred to in paragraph 1 must be suspected, Member States shall ensure that by way of derogation from Article 2(b), second sentence, an outbreak is declared on the premises or means of transport referred to in paragraph 1, and the measures provided for in Articles 10 and 21 are applied.
Article 17
Review of measures
The Commission shall review the situation regarding the special cases referred to in Article 15 in the Standing Committee on the Food Chain and Animal Health at the earliest possible opportunity. The necessary measures to prevent the spread of the foot-and-mouth disease virus, in particular in relation to regionalisation in accordance with Article 45, and to emergency vaccination in accordance with Article 52, shall be adopted in accordance with the procedure referred to in Article 89(3).
SECTION 5
HOLDINGS CONSISTING OF DIFFERENT EPIDEMIOLOGICAL PRODUCTION UNITS AND CONTACT HOLDINGS
Article 18
Holdings consisting of different epidemiological production units
1. In the case of holdings which consist of two or more separate production units, the competent authority may, in exceptional cases and after considering the risks, derogate from Article 10(1)(a) as regards production units of such holdings not affected by foot-and-mouth disease.
2. The derogation provided for in paragraph 1 shall only be granted after the official veterinarian has confirmed at the time of the official investigation referred to in Article 4(2), that the following conditions to prevent the spread of foot-and-mouth disease virus between the production units referred to in paragraph 1, have been in place for at least two incubation periods prior to the date the outbreak of foot-and-mouth disease was identified on the holding:
(a) the structure, including the administration, and size of the premises allow a complete separation of housing and keeping for the distinct herds of animals of susceptible species, including separate air space;
(b) the operations on the different production units, and in particular stable and pasture management, feeding, removal of dung or manure are completely separated and carried out by different personnel;
(c) the machinery, working animals of species not susceptible to foot-and-mouth disease, equipment, installations, instruments and disinfection facilities used in the production units are completely separate.
3. In relation to milk, a derogation from Article 10(1)(d) may be granted to a holding producing milk provided that:
(a) such holding complies with the conditions set out in paragraph 2, and
(b) milking in each unit is carried out separately, and
(c) depending on the intended use, the milk is subject to at least one of the treatments described in Part A or Part B of Annex IX.
4. Where a derogation is granted in accordance with paragraph 1, Member States shall lay down in advance detailed rules for applying such derogation. The Member States shall notify the Commission of the derogation and provide details of the measures taken.
Article 19
Contact holdings
1. Holdings shall be recognised as contact holdings where the official veterinarian finds, or considers on the basis of confirmed data, that the foot-and-mouth disease virus may have been introduced as a result of the movement of persons, animals, products of animal origin, vehicles or in any other way either from other holdings onto a holding referred to in Articles 4(1) or 10(1) or from a holding referred to in Articles 4(1) or 10(1) to other holdings.
2. Contact holdings shall be subject to the measures provided for in Articles 4(3) and 5 and these measures shall be maintained until the suspected presence of foot-and-mouth disease virus on these contact holdings has been officially ruled out in accordance with the definition in Annex I and the survey requirements provided for in point 2.1.1.1 of Annex III.
3. The competent authority shall prohibit the removal of all animals from contact holdings during a period corresponding to the incubation period specified for the species concerned in Article 2(h). However, the competent authority may, by way of derogation from Article 4(3)(d), authorise the transport of animals of susceptible species under official supervision directly to the closest possible designated slaughterhouse for emergency slaughter.
Prior to granting such derogation, the official veterinarian shall at least carry out the clinical examinations provided for in point 1 of Annex III.
4. Where the competent authority considers that the epidemiological situation permits, it may limit the recognition as a contact holding provided for in paragraph 1, to one identified epidemiological production unit of the holding and to the animals contained therein, provided that the epidemiological production unit complies with Article 18.
5. Where an epidemiological link between an outbreak of foot-and-mouth disease and premises or means of transportation referred to in Articles 15 and 16 respectively cannot be excluded, Member States shall ensure that the measures provided for in Article 4(2) and (3) and in Article 5 shall apply to such premises or means of transportation. The competent authority may decide to apply the measures provided for in Article 8.
Article 20
Coordination of measures
The Commission may review the situation regarding the holdings referred to in Articles 18 and 19 in the Standing Committee on the Food Chain and Animal Health with a view to the adoption, in accordance with the procedure referred to in Article 89(3), of the necessary measures to ensure coordination of the measures implemented by the Member States pursuant to Articles 18 and 19.
SECTION 6
PROTECTION AND SURVEILLANCE ZONES
Article 21
Establishment of protection and surveillance zones
1. Member States shall ensure that, without prejudice to measures provided for in Article 7, at least the measures laid down in paragraphs 2, 3 and 4 below are taken immediately after an outbreak of foot-and-mouth disease is confirmed.
2. The competent authority shall establish a protection zone based on a minimum radius of 3 km and a surveillance zone based on a minimum radius of 10 km centred on the outbreak of foot-and-mouth disease referred to in paragraph 1. The geographical delimitation of those zones shall take account of administrative boundaries, natural barriers, supervision facilities and technological progress which makes it possible to predict the probable dispersion of the foot-and-mouth disease virus by air or any other means. That delimitation shall be reviewed, if necessary, in the light of such elements.
3. The competent authority shall ensure that the protection and surveillance zones are marked by posting signs of sufficient size on roads entering the zones.
4. In order to ensure full coordination of all measures necessary to eradicate foot-and-mouth disease as quickly as possible, national and local disease control centres as referred to in Articles 74 and 76 shall be established. For the purpose of carrying out the epidemiological inquiry as provided for in Article 13, those centres shall be assisted by an expert group as provided for in Article 78.
5. Member States shall without delay trace animals dispatched from the zones during the period of at least 21 days before the estimated date of earliest infection on a holding in the protection zone and they shall inform the competent authorities in other Member States and the Commission about their results from tracing of animals.
6. Member States shall collaborate in tracing fresh meat, meat products, raw milk and raw milk products derived from animals of susceptible species originating in the protection zone and produced between the date of estimated introduction of the foot-and-mouth disease virus until the date the measures provided for in paragraph 2 come into force. Such fresh meat, meat products, raw milk and raw milk products shall be treated in accordance with Articles 25, 26 and 27 respectively or detained until possible contamination with the foot-and-mouth disease virus is officially ruled out.
Article 22
Measures to be applied to holdings in the protection zone
1. Member States shall ensure that at least the following measures are applied in the protection zone without delay:
(a) the registration of all holdings with animals of susceptible species and the establishment of a census of all animals present on these holdings shall be carried out as soon as possible and kept up to date;
(b) all holdings with animals of susceptible species shall periodically undergo a veterinary inspection, carried out in such a way as to avoid the spread of foot-and-mouth disease virus possibly present on the holdings, which shall include in particular the relevant documentation, notably the records referred to in subparagraph (a) and the measures applied to prevent the introduction or escape of foot-and-mouth disease virus and which may include clinical inspection as described in point 1 of Annex III or taking of samples from animals of susceptible species in accordance with point 2.1.1.1 of Annex III;
(c) animals of susceptible species shall not be removed from the holding on which they are kept.
2. By way of derogation from paragraph 1(c), animals of susceptible species may be transported under official supervision for the purpose of emergency slaughter directly to a slaughterhouse situated inside the same protection zone or, if that zone has no slaughterhouse to a slaughterhouse outside the zone designated by the competent authority in means of transport cleansed and disinfected under official control after each transport operation.
The movement referred to in the first subparagraph shall only be authorised if the competent authority is satisfied on the basis of a clinical examination in accordance with point 1 of Annex III by the official veterinarian of all the animals of susceptible species present on the holding and after evaluation of epidemiological circumstances that there is no reason to suspect the presence of infected or contaminated animals on the holding. The meat of such animals shall be subject to the measures provided for in Article 25.
Article 23
Movement and transport of animals and their products in the protection zone
Member States shall ensure that the following activities are prohibited within the protection zone:
(a) movement between holdings and transport of animals of susceptible species;
(b) fairs, markets, shows and other gatherings of animals including collection and dispersion of susceptible species;
(c) itinerant service for breeding of animals of susceptible species;
(d) artificial insemination of and collection of ova and embryos from animals of susceptible species.
Article 24
Additional measures and derogations
1. The competent authority may extend the prohibitions in Article 23 to:
(a) movement or transport of animals of non-susceptible species between holdings situated within the zone or out of or into the protection zone;
(b) transit of animals of all species through the protection zone;
(c) events with gatherings of people with possible contact with animals of susceptible species, where there is a risk of spreading the foot-and-mouth disease virus;
(d) artificial insemination of or collection of ova and embryos from animals of species not susceptible to foot-and-mouth disease;
(e) movement of means of transport designed for the transportation of animals;
(f) the slaughter on the holding of animals of susceptible species for private consumption;
(g) transport of goods referred to in Article 33 to holdings keeping animals of susceptible species.
2. The competent authorities may authorise:
(a) the transit of animals of all species through the protection zone undertaken exclusively via major highways or mainline railways;
(b) the transport of animals of susceptible species which have been certified by the official veterinarian as coming from holdings outside the protection zone and transported on designated routes directly to designated slaughterhouses for immediate slaughter, provided that the means of transport are cleansed and disinfected after delivery under official supervision at the slaughterhouse and such decontamination of transport is recorded in the logbook of the means of transport;
(c) the artificial insemination of animals on a holding carried out by the personnel of that holding by use of semen collected from animals on that holding or semen stored on that holding or semen delivered from a semen collection centre to the outside perimeter of that holding;
(d) the movement and transport of equidae taking into account the conditions set out in Annex VI.
(e) the transport, under certain conditions, of goods referred to in Article 33 to holdings keeping animals of susceptible species.
Article 25
Measures in relation to fresh meat produced in the protection zone
1. Member States shall ensure that the placing on the market of fresh meat, minced meat and meat preparations, derived from animals of susceptible species originating in the protection zone shall be prohibited.
2. Member States shall ensure that the placing on the market of fresh meat, minced meat and meat preparations from animals of susceptible species produced in establishments situated in the protection zone shall be prohibited.
3. Member States shall ensure that fresh meat, minced meat and meat preparations as referred to in paragraph 1, shall be marked in accordance with Directive 2002/99/EC and subsequently transported in sealed containers to an establishment designated by the competent authorities for transformation into meat products treated in accordance with point 1 in Part A of Annex VII of this Directive.
4. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to fresh meat, minced meat and meat preparations which were produced on a date at least 21 days before the estimated date of earliest infection on a holding in the protection zone and which since production have been stored and transported separately from such meats produced after that date. Such meats must be readily distinguished from meats not eligible for dispatch outside the protection zone by means of clear mark established in conformity with Community legislation.
5. By way of derogation, the prohibition provided for in paragraph 2, shall not apply to fresh meat, minced meat or meat preparations obtained from establishments situated in the protection zone under the following conditions:
(a) the establishment shall be operated under strict veterinary control;
(b) only fresh meat, minced meat or meat preparations as described in paragraph 4, or fresh meat, minced meat or meat preparations obtained from animals reared and slaughtered outside the protection zone or from animals transported to the establishment and slaughtered therein in accordance with the provisions in Article 24(2)(b) shall be processed in the establishment;
(c) all such fresh meat, minced meat or meat preparations, must bear the health mark in accordance with Chapter XI of Annex I to Directive 64/433/EEC or in the case of meat from other biungulates the health mark provided for in Chapter III of Annex I to Directive 91/495/EEC, or in the case of minced meat and meat preparations the health mark as provided for in Chapter VI of Annex I to Directive 94/65/EC;
(d) during the whole production process all such fresh meat, minced meat or meat preparations must be clearly identified, and transported and stored separately from fresh meat, minced meat or meat preparations which are not eligible for dispatch outside the protection zone in accordance with this Directive.
6. Compliance with the conditions in paragraph 5 shall be certified by the competent authority for fresh meat, minced meat and meat preparations intended for intra-Community trade. The competent authority shall supervise the control of compliance undertaken by the local veterinary authority and, in the case of intra-Community trade, communicate to other Member States and the Commission a list of those establishments which it has approved for the purpose of such certification.
7. Derogation from the prohibition provided for in paragraph 1 may be granted subject to specific conditions adopted in accordance with the procedure referred to in Article 89(3), in particular with regard to the health marking of meat produced from animals of susceptible species originating in protection zones maintained for more than 30 days.
Article 26
Measures in relation to meat products produced in the protection zone
1. Member States shall ensure that the placing on the market of meat products produced from meat derived from animals of susceptible species originating in the protection zone shall be prohibited.
2. By way of derogation, the prohibition in paragraph 1 shall not apply to meat products which have either undergone one of the treatments as set out in point 1 in Part A of Annex VII or which have been produced from meats referred to in Article 25(4).
Article 27
Measures in relation to milk and milk products produced in the protection zone
1. Member States shall ensure that the placing on the market of milk derived from animals of susceptible species originating in the protection zone and of milk products produced from such milk shall be prohibited.
2. Member States shall ensure that the placing on the market of milk and milk products from animals of susceptible species produced in an establishment situated in the protection zone shall be prohibited.
3. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to milk and milk products derived from animals of susceptible species originating in the protection zone which were produced on a date at least 21 days before the estimated date of earliest infection on a holding in the protection zone and which since production have been stored and transported separately from milk and milk products produced after that date.
4. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to milk derived from animals of susceptible species originating in the protection zone and milk products produced from such milk which have undergone one of the treatments as set out in Parts A or B of Annex IX, depending on the use of the milk or milk products. The treatment shall be carried out under the conditions set out in paragraph 6 in establishments referred to in paragraph 5 or, if there is no establishment situated in the protection zone, in establishments situated outside the protection zone under the conditions set down in paragraph 8.
5. By way of derogation, the prohibition provided for in paragraph 2 shall not apply to milk and milk products which have been prepared in establishments situated in the protection zone under the conditions set out in paragraph 6.
6. Establishments referred to in paragraphs 4 and 5 shall comply with the following conditions:
(a) the establishment shall be operated under permanent and strict official control;
(b) all milk used in the establishment shall either comply with paragraphs 3 and 4 or the raw milk shall be obtained from animals outside the protection zone;
(c) during the whole production process the milk shall be clearly identified and transported and stored separately from raw milk and raw milk products which are not destined for dispatch outside the protection zone;
(d) transport of raw milk from holdings situated outside the protection zone to the establishments shall be carried out in vehicles which were cleaned and disinfected prior to the transport operation, and which have had no subsequent contact with holdings in the protection zone keeping animals of susceptible species.
7. Compliance with the conditions in paragraph 6 shall be certified by the competent authority for milk intended for intra-Community trade. The competent authority shall supervise the control of compliance undertaken by the local veterinary authority and, in the case of intra-Community trade, communicate to other Member States and the Commission a list of those establishments which it has approved for the purpose of such certification.
8. Transport of raw milk from holdings situated within the protection zone to establishments situated outside the protection zone and the processing of that milk shall be subject to the following conditions:
(a) processing in establishments situated outside the protection zone of raw milk produced from animals of susceptible species kept within the protection zone shall be authorised by the competent authorities;
(b) the authorisation shall include instructions on and designation of the transport route to the designated establishment;
(c) transport shall be carried out in vehicles which were cleaned and disinfected prior to the transport operation, which are constructed and maintained in such a way that there is no leakage of milk during transport and which are equipped to avoid aerosol dispersion during the loading and unloading of the milk;
(d) before leaving the holding from where milk of animals of susceptible species was collected the connection pipes, tires, wheel cases, the lower parts of the vehicle and any spillage of milk are cleansed and disinfected and after the last disinfection and before leaving the protection zone the vehicle had no subsequent contact with holdings in the protection zone keeping animals of susceptible species;
(e) the means of transport are strictly assigned to a defined geographical or administrative area, they are marked accordingly and may only be moved to another area after cleansing and disinfection under official supervision.
9. The collection and transport of samples of raw milk of animals of susceptible species from holdings situated in the protection zone to a laboratory other than a veterinary diagnostic laboratory approved for diagnosis of foot-and-mouth disease and the processing of the milk in such laboratories shall be forbidden.
Article 28
Measures in relation to semen, ova and embryos collected from animals of susceptible species in the protection zone
1. Member States shall ensure that the placing on the market of semen, ova and embryos derived from animals of susceptible species originating in the protection zone shall be prohibited.
2. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to frozen semen, ova and embryos collected and stored at least 21 days before the estimated date of earliest infection with the foot-and-mouth disease virus on a holding in the zone.
3. Frozen semen collected in accordance with Community legislation after the date of infection referred to in paragraph 2, shall be stored separately and shall only be released after:
(a) all the measures relating to the outbreak of foot-and-mouth disease have been removed in accordance with Article 36, and
(b) all animals accommodated in the semen collection centre have undergone a clinical examination, and samples taken in accordance with point 2.2 of Annex III have been subjected to a serological test to substantiate the absence of infection in the semen collection centre concerned, and
(c) the donor animal has been subjected with negative result to a serological test for the detection of antibodies against the foot-and-mouth disease virus on a sample taken not earlier than 28 days after the collection of the semen.
Article 29
Transport and distribution of dung and manure of animals of susceptible species produced in the protection zone
1. Member States shall ensure that the transport and distribution of dung or manure from holdings and premises or means of transport referred to in Article 16 situated in the protection zone where animals of susceptible species are kept, shall be prohibited within the protection zone.
2. By way of derogation from the prohibition in paragraph 1 the competent authority may authorise the removal of manure of animals of susceptible species from a holding situated in the protection zone to a designated plant for treatment in accordance with point 5 of Section II in Part A of Chapter III of Annex VIII to Regulation (EC) No 1774/2002 or for intermediate storage.
3. By way of derogation from the prohibition in paragraph 1 the competent authority may authorise the removal of manure of animals of susceptible species from holdings situated in the protection zone which are not subject to the measures provided for in Articles 4 or 10 for distribution on designated fields under the following conditions:
(a) the entire volume of manure has been produced at least 21 days before the estimated date of earliest infection on a holding in the protection zone and the manure or dung is distributed close to the ground and in sufficient distance from holdings keeping animals of susceptible species and immediately incorporated into the ground, or
(b) in the case of manure from bovine animals or pigs:
(i) an examination by an official veterinarian of all the animals on the holding has ruled out the presence of animals suspected of being infected with the foot-and-mouth disease virus, and
(ii) the entire volume of manure has been produced at least 4 days prior to the examination referred to in point (i), and
(iii) the manure is incorporated into the ground on designated fields close to the holding of origin and in sufficient distance to other holdings keeping animals of susceptible species in the protection zone.
4. Member states shall ensure that any authorisation to remove dung or manure from a holding keeping animals of susceptible species is subject to stringent measures to avoid spread of the foot-and-mouth disease virus, in particular by ensuring cleansing and disinfection of the leak-proof transport vehicles after loading and before leaving the holding.
Article 30
Measures in relation to hides and skins from animals of susceptible species in the protection zone
1. Member States shall ensure that the placing on the market of hides and skins of animals of susceptible species originating in the protection zone shall be prohibited.
2. By way of derogation, the prohibition as provided for in paragraph 1 shall not apply to hides and skins which either:
(a) were produced at least 21 days before the estimated date of infection on the holding referred to in Article 10(1), and that have been stored separately from hides and skins produced after that date; or
(b) comply with the requirements laid down in point 2 in Part A of Annex VII.
Article 31
Measures in relation to sheep wool, ruminant hair and pig bristles produced in the protection zone
1. Member States shall ensure that the placing on the market of sheep wool, ruminant hair and pig bristles originating in the protection zone shall be prohibited.
2. By way of derogation, the prohibition as provided for in paragraph 1 shall not apply to unprocessed wool, hair and bristles which:
(a) were produced at least 21 days before the estimated date of infection on the holding referred to in Article 10(1) and have been stored separately from wool, hair and bristles produced after that date; or
(b) comply with the requirements laid down in point 3 in Part A of Annex VII.
Article 32
Measures in relation to other animal products produced in the protection zone
1. Member States shall ensure that the placing on the market of animal products derived from animals of susceptible species not referred to in Articles 25 to 31 shall be prohibited.
2. By way of derogation, the prohibitions provided for in paragraph 1 shall not apply to products referred to in paragraph 1 which:
(a) either have been produced at least 21 days before the estimated date of infection on the holding referred to in Article 10(1) and have been stored and transported separately from products produced after that date, or
(b) have undergone the treatment in accordance with point 4 in Part A of Annex VII, or
(c) for specific products, comply with the appropriate requirements in points 5 to 9 in Part A of Annex VII, or
(d) are composite products which are not subject to further treatment containing products of animal origin which either have undergone a treatment ensuring destruction of possible foot-and-mouth disease virus or have been obtained from animals not subject to restrictions under the provisions of this Directive, or
(e) are packed products intended for use as in-vitro diagnostic or laboratory reagents.
Article 33
Measures in relation to feed, forage, hay and straw produced in the protection zone
1. Member State shall ensure that the placing on the market of feed, forage, hay and straw originating in the protection zone shall be prohibited.
2. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to feed, forage, hay and straw:
(a) produced at least 21 days before the estimated date of infection on holdings referred to in Article 10(1), and stored and transported separately from feed, forage, hay and straw produced after that date; or
(b) intended for use within the protection zone, subject to authorisation by the competent authorities; or
(c) produced on premises not keeping animals of susceptible species; or
(d) produced in establishments not keeping animals of susceptible species and sourcing the raw material from premises referred to in paragraph (c) or from premises situated outside the protection zone.
3. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to forage and straw produced on holdings keeping animals of susceptible species which comply with the requirements in point 1 in Part B of Annex VII.
Article 34
Granting of derogations and additional certification
1. Any derogation from the prohibitions provided for in Articles 24 to 33 shall be granted by a specific decision of the competent authority only after it has satisfied itself that all relevant requirements have been met for a sufficient period before the products leave the protection zone, and that there is no risk of spreading the foot-and-mouth disease virus.
2. Any derogation from the prohibitions provided for in Articles 25 to 33 requires, in the case of intra-Community trade, additional certification by the competent authority.
3. Detailed rules for the implementation of the measures provided for in paragraph 2 may be adopted in accordance with the procedure referred to in Article 89(2).
Article 35
Additional measures applied by Member States in the protection zone
In addition to the measures applicable in the protection zone in accordance with this Directive, Member States may take additional national measures which are deemed necessary and proportionate to contain the foot-and-mouth disease virus taking into account the particular epidemiological, animal husbandry, commercial and social conditions prevailing in the affected area. Member States shall inform the Commission and the other Member States about such additional measures.
Article 36
Removal of measures in the protection zone
1. Member States shall ensure that the measures applied in the protection zone are maintained until the following requirements have been met:
(a) at least 15 days have elapsed since the killing and safe disposal of all the animals of susceptible species from the holding referred to in Article 10(1) and the completion of the preliminary cleansing and disinfection on that holding, carried out in accordance with Article 11;
(b) a survey has been concluded with negative results in all holdings keeping animals of susceptible species and situated within the protection zone.
2. After the removal of the measures specific to the protection zone, the measures applied in the surveillance zone as provided for in Articles 37 to 42, shall continue to apply for at least 15 days until those measures are removed in accordance with Article 44.
3. The survey referred to in paragraph 1(b) shall be carried out to substantiate the absence of infection and at least in compliance with the criteria of point 1 of Annex III and shall include the measures provided for in point 2.3 of Annex III based on the criteria set out in points 2.1.1. and 2.1.3. of Annex III.
Article 37
Measures to be applied to holdings in the surveillance zone
1. Member States shall ensure that the measures provided for in Article 22(1) are applied in the surveillance zone.
2. By way of derogation from the prohibition provided for in Article 22(1)(c) and where there is no or insufficient slaughter capacity available within the surveillance zone, the competent authorities may authorise the removal from holdings situated in the surveillance zone of animals of susceptible species for transporting them directly and under official supervision for slaughter to a slaughterhouse located outside the surveillance zone, subject to the following conditions:
(a) the records referred to in Article 22(1) have been subjected to official control, and the epidemiological situation of the holding does not indicate any suspicion of infection or contamination with the foot-and-mouth disease virus, and
(b) all the animals of susceptible species on the holding have been subjected with negative result to an inspection by the official veterinarian, and
(c) a representative number of animals, taking into account the statistical parameters in point 2.2 of Annex III, has been subjected to thorough clinical examination to rule out the presence or suspicion of clinically infected animals, and
(d) the slaughterhouse is designated by the competent authority and located as near to the surveillance zone as possible, and
(e) the meat produced from such animals shall be subject to the treatment specified in Article 39.
Article 38
Movement of animals of susceptible species within the surveillance zone
1. Member States shall ensure that animals of susceptible species shall not be removed from holdings within the surveillance zone.
2. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to movement of animals for one of the following purposes:
(a) for leading them without coming into contact with animals of susceptible species of different holdings to pasture situated within the surveillance zone not earlier than 15 days after the last outbreak of foot-and-mouth disease has been recorded in the protection zone;
(b) for transporting them directly and under official supervision for the purpose of slaughter to a slaughterhouse located inside the same zone;
(c) for transporting them in accordance with Article 37(2);
(d) for transporting them in accordance with Article 24(2)(a) and (b).
3. Movements of animals provided for in paragraph 2(a) shall be authorised by the competent authority only after an examination by an official veterinarian of all the animals of susceptible species on the holding, including testing of samples taken in accordance with point 2.2 of Annex III, has ruled out the presence of animals suspected of being infected or animals suspected of being contaminated.
4. Movements of animals provided for in paragraph 2(b) shall be authorised by the competent authority only after the measures provided for in Article 37(2)(a) and (b) have been completed with satisfactory results.
5. Member States shall without delay trace animals of susceptible species dispatched from the surveillance zone during a period of least 21 days before the estimated date of earliest infection on a holding in the surveillance zone and they shall inform the competent authorities in other Member States about their results from tracing animals.
Article 39
Measures to be applied to fresh meat of animals of susceptible species originating in the surveillance zone and meat products produced from such meat
1. Member States shall ensure that the placing on the market of fresh meat, minced meat and meat preparations derived from animals of susceptible species originating in the surveillance zone and of meat products produced from such meats shall be prohibited.
2. Member States shall ensure that the placing on the market of fresh meat, minced meat, meat preparations and meat products from animals of susceptible species produced in establishments situated in the surveillance zone shall be prohibited.
3. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to fresh meat, minced meat and meat preparations which were produced on a date at least 21 days before the estimated date of earliest infection on a holding in the corresponding protection zone and which since production have been stored and transported separately from such meats produced after that date. Such meats must be readily distinguished from meats not eligible for dispatch outside the surveillance zone by means of clear mark established in conformity with Community legislation.
4. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to fresh meat, minced meat and meat preparations which were produced from animals transported to the slaughterhouse under conditions at least as strict as provided for in Article 37(2)(a) to (e) under the condition that the meat is subject to the measures provided for in paragraph 5.
5. By way of derogation, the prohibition provided for in paragraph 2, shall not apply to fresh meat, minced meat or meat preparations obtained from establishments situated in the surveillance zone under the following conditions:
(a) the establishment shall be operated under strict veterinary control;
(b) only fresh meat, minced meat or meat preparations as described in paragraph 4 and subject to the additional conditions provided for in Part B of Annex VIII or obtained from animals reared and slaughtered outside the surveillance zone or obtained from animals transported in accordance with the provisions in Article 24(2)(b) shall be processed in the establishment;
(c) all such fresh meat, minced meat or meat preparations must bear the health mark in accordance with Chapter XI of Annex I to Directive 64/433/EEC or in the case of meat from other biungulates the health mark provided for in Chapter III of Annex I to Directive 91/495/EEC, or in the case of minced meat and meat preparations the health mark as provided for in Chapter VI of Annex I to Directive 95/65/EC;
(d) during the whole production process all such fresh meat, minced meat or meat preparations must be clearly identified, and transported and stored separately from fresh meat, minced meat or meat preparations which are not eligible for dispatch outside the surveillance zone in accordance with this Directive.
6. By way of derogation, the prohibition provided for in paragraph 1, shall not apply to meat products produced from fresh meat obtained from animals of susceptible species originating in the surveillance zone which was marked with the health mark provided for Directive 2002/99/EC and transported under official supervision to a designated establishment for treatment in accordance with point 1 in Part A of Annex VII.
7. By way of derogation, the prohibition provided for in paragraph 2, shall not apply to meat products produced in establishments situated in the surveillance zone and either complying with the provisions in paragraph 6, or produced from meat complying with paragraph 5.
8. Compliance with the conditions in paragraphs 5 and 7 shall be certified by the competent authority for fresh meat, minced meat and meat preparations intended for intra-Community trade. The competent authority shall supervise the control of compliance undertaken by the local veterinary authority and in the case of intra-Community trade communicate to other Member States and the Commission a list of those establishments which it has approved for the purpose of such certification.
9. Derogation from the prohibition provided for in paragraph 1 may be granted subject to specific conditions adopted in accordance with the procedure referred to in Article 89(3), in particular with regard to the health marking of meat produced from animals of susceptible species originating in surveillance zone maintained for more than 30 days.
Article 40
Measures to be applied to milk and milk products of animals of susceptible species produced in the surveillance zone
1. Member States shall ensure that placing on the market of milk derived from animals of susceptible species originating in the surveillance zone and of milk products produced from such milk shall be prohibited.
2. Member States shall ensure that the placing on the market of milk and milk products from animals of susceptible species produced in the surveillance zone shall be prohibited.
3. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to milk and milk products derived from animals of susceptible species originating in the surveillance zone which were produced on a date at least 21 days before the estimated date of earliest infection on a holding in the corresponding protection zone and which since production have been stored and transported separately from milk and milk products produced after that date.
4. By way of derogation, the prohibition provided for in paragraph 1 shall not apply to milk derived from animals of susceptible species originating in the surveillance zone and milk products produced from such milk which have undergone one of the treatments as set out in Parts A or B of Annex IX depending on the use of the milk or milk products. The treatment shall be carried out under the condition set out in paragraph 6 in establishments referred to in paragraph 5 or, if there is no establishment situated in the surveillance zone, in establishments designated by the competent authorities and situated outside the protection and surveillance zones.
5. By way of derogation, the prohibition provided for in paragraph 2 shall not apply to milk and milk products which have been prepared in establishments situated in the surveillance zone under the conditions set out in paragraph 6.
6. Establishments referred to in paragraphs 4 and 5 shall comply with the following conditions:
(a) the establishment shall be operated under strict veterinary control;
(b) all milk used in the establishment shall either comply with paragraph 4 or be obtained from animals outside the surveillance and protection zone;
(c) throughout the production process the milk shall be clearly identified and transported and stored separately from milk and milk products which are not destined for dispatch outside the surveillance zone;
(d) transport of raw milk from holdings situated outside the protection and surveillance zone to the establishments shall be carried out in vehicles which were cleaned and disinfected prior to the transport operation, and which have had no subsequent contact with holdings in the protection and surveillance zones keeping animals of susceptible species.
7. Compliance with the conditions in paragraph 6 shall be certified by the competent authority for milk intended for intra-Community trade. The competent authority shall supervise the control of compliance undertaken by the local veterinary authority and, in the case of intra-Community trade, communicate to other Member States and the Commission a list of those establishments which it has approved for the purpose of such certification.
8. Transport of raw milk from holdings situated within the surveillance zone to establishments situated outside the protection and surveillance zones and the processing of that milk shall be subject to the following conditions:
(a) processing in establishments situated outside the protection and surveillance zones of raw milk produced from animals of susceptible species kept within the surveillance zone shall be authorised by the competent authorities;
(b) the authorisation shall include instructions on and designation of the transport route to the designated establishment;
(c) transport shall be carried out in vehicles which were cleaned and disinfected prior to the transport operation, which are constructed and maintained in such a way that there is no leakage of milk during transport and which are equipped to avoid aerosol dispersion during the loading and unloading of the milk;
(d) before leaving the holding from where milk of animals of susceptible species was collected, the connection pipes, tires, wheel cases, the lower parts of the vehicle and any spillage of milk are cleansed and disinfected and after the last disinfection and before leaving the surveillance zone the vehicle had no subsequent contact with holdings in the protection and surveillance zones keeping animals of susceptible species;
(e) the means of transport are strictly assigned to a defined geographical or administrative area, they are marked accordingly and may only be moved to another area after cleansing and disinfection under official supervision.
9. The collection and transport of samples of raw milk of animals of susceptible species from holdings situated in the surveillance zone to a laboratory other than a veterinary diagnostic laboratory approved for diagnosis of foot-and-mouth disease and the processing of the milk in such laboratories shall be subject to official authorisation and measures to avoid any spread of possible foot-and-mouth disease virus.
Article 41
Transport and distribution of dung and manure of animals of susceptible species produced in the surveillance zone
1. Member States shall ensure that the transport and distribution of dung or manure from holdings and other premises such as those mentioned in Article 16 situated in the surveillance zone where animals of susceptible species are kept shall be prohibited within and outside that zone.
2. By way of derogation from the prohibition provided for in paragraph 1 the competent authorities may in exceptional circumstances authorise the transport of dung or manure in means of transport thoroughly cleansed and disinfected prior to and after use for distribution in designated areas within the surveillance zone and at sufficient distance to holdings where animals of susceptible species are kept under the following alternative conditions:
(a) either an examination by an official veterinarian of all the animals of susceptible species on the holding has ruled out the presence of animals suspected of being infected with the foot-and-mouth disease virus and the manure or dung is distributed close to the ground to avoid the generation of aerosols and immediately ploughed into the ground, or
(b) a clinical inspection by an official veterinarian of all the animals of susceptible species on the holding has been carried out with negative result and the manure is injected into ground, or;
(c) manure is subject to the provision of Article 29(2).
Article 42
Measures in relation to other animal products produced in the surveillance zone
Member State shall ensure that the placing on the market of products of animal origin other than those referred to in Articles 39 to 41 shall be subject to the conditions provided for in Articles 28 and 30 to 32.
Article 43
Additional measures applied by Member States in the surveillance zone
In addition to the measures provided for in Articles 37 to 42, Member States may take additional national measures which are deemed necessary and proportionate to contain foot-and-mouth disease virus taking into account the particular epidemiological, animal husbandry, commercial and social conditions prevailing in the affected area. Where specific measures to restrict the movement of equidae are considered necessary, such measures shall take into account those provided for in Annex VI.
Article 44
Removal of measures in the surveillance zone
1. Member states shall ensure that the measures applied in the surveillance zone are maintained until the following requirements have been met:
(a) at least 30 days have elapsed since the killing and safe disposal of all animals of susceptible species from the holding referred to in Article 10(1) and the completion of the preliminary cleansing and disinfection on that holding, carried out in accordance with Article 11;
(b) the requirements provided for in Article 36 have been met in the protection zone;
(c) a survey has been concluded with negative results.
2. The survey referred to in paragraph 1(c) shall be carried out to substantiate the absence of infection in the surveillance zone in compliance with the criteria of point 1 of Annex III and shall include the measures provided for in point 2.4 of Annex III based on the criteria of point 2.1 of Annex III.
SECTION 7
REGIONALISATION, MOVEMENT CONTROL AND IDENTIFICATION
Article 45
Regionalisation
1. Without prejudice to Directive 90/425/EC, and in particular Article 10 thereof, where the foot-and-mouth disease virus appears to be spreading despite the measures taken in accordance with this Directive and the epizootic becomes extensive and in any case when emergency vaccination is implemented, Member States shall ensure that their territory is regionalised into one or more restricted and free zones.
2. Member States shall notify to the Commission without delay the details of the measures implemented in the restricted zone and the Commission shall review, where necessary amend, and endorse the measures in accordance with the procedure referred to in Article 89(3).
3. Without prejudice to the obligation of Member States to regionalise referred to in paragraph 1, regionalisation, and the measures to be applied within the restricted zone, may be decided in accordance with the procedure referred to in Article 89(3). This decision may extent its effects to neighbouring Member States not infected at the time the measures are taken.
4. Prior to the delimitation of the restricted zone, a thorough epidemiological assessment of the situation shall be carried out, especially with respect to the possible time and probable location of introduction, the possible spread and the probable period of time necessary to eradicate the foot-and-mouth disease virus.
5. The restricted zone shall as far as possible be delimited on the basis of administrative boundaries or geographical barriers. Regionalisation shall take as its starting point larger administrative units rather than regions. The restricted zone may be reduced in the light of the results of the epidemiological inquiry provided for in Article 13, to an area of the size not less than a sub-region, and where necessary the surrounding sub-regions. In the event of the foot-and-mouth disease virus spreading, the restricted zone shall be enlarged by including additional regions or sub-regions.
Article 46
Measures applied in a restricted zone of a member state
1. Where regionalisation is applied, Member States shall ensure that at least the following measures are taken:
(a) control within the restricted zone of transport and movement of animals of susceptible species, animal products and goods and of the movement of means of transport as potential carriers of foot-and-mouth disease virus;
(b) tracing and marking in accordance with Community legislation of fresh meat and raw milk and as far as possible other products in stock not eligible for dispatch outside the restricted zone;
(c) specific certification of animals of susceptible species and products derived from such animals and health marking, in accordance with Community legislation, of products for human consumption intended and eligible for dispatch outside the restricted zone.
2. Where regionalisation is applied, Member States shall ensure that at least the animals of susceptible species dispatched from the restricted zone to other Member States during the time between the date of estimated introduction of the foot-and-mouth disease virus until the date regionalisation is implemented shall be traced, and such animals shall be isolated under official veterinary control until possible infection or contamination is officially ruled out.
3. Member States shall collaborate in tracing fresh meat and raw milk and raw milk products derived from animals of susceptible species produced in the restricted zone between the date of estimated introduction of the foot-and-mouth disease virus until the date regionalisation is implemented. Such fresh meat shall be treated in accordance with point 1 in Part A of Annex VII, and raw milk and milk products shall be treated in accordance with Part A or B of Annex IX depending on the use, or detained until possible contamination with the foot-and-mouth disease virus is officially ruled out.
4. Specific measures, in particular in relation to health marking of products derived from animals of susceptible species originating in the restricted zone and not intended for placing on the market outside the restricted zone may be adopted in accordance with Article 4(3) of Directive 2002/99/EC.
Article 47
Identification of animals of susceptible species
1. Without prejudice to Community legislation on identification of domestic bovine, ovine and caprine animals and swine, Member States shall ensure that in the event of an outbreak of foot-and-mouth disease on their territory animals of susceptible species shall only leave the holding on which they are kept, if they are identified in such a way as to enable the competent authorities to trace rapidly their movements and their holding of origin, or any holding from which they have come. However, for special cases referred to in Article 15(1) and Article 16(1), the competent authority may, in certain circumstances and having regard to the health situation, authorise other ways of rapidly tracing the movement of those animals and of their holding of origin, or of any holding from which they have come. The arrangements for identifying such animals or for tracing their holdings of origin shall be determined by the competent authority and notified to the Commission.
2. The measures taken by Member States on additional, permanent and indelible marking of animals for the particular purpose of control of the foot-and-mouth disease, and in particular in case of vaccination carried out in accordance with Articles 52 and 53, may be modified in accordance with the procedure referred to in Article 89(3).
Article 48
Movement control in case of an outbreak of foot-and-mouth disease
1. Member States shall ensure that in the event of an outbreak of foot-and-mouth disease on their territory the following measures to control movement of animals of susceptible species are applied in the restricted zone established in accordance with Article 45:
(a) owners shall supply the competent authority, on request of that authority, with appropriate information concerning animals entering or leaving their holding. That information shall, in relation to all animals of susceptible species, include at least the details required by Article 14 of Directive 64/432/EEC;
(b) persons engaged in the transport or marketing of animals of susceptible species shall supply the competent authority, on request of that authority, with appropriate information concerning the movements of such animals which they have transported or marketed. That information shall include at least the details required by Articles 12(2) and 13(1)(b) of Directive 64/432/EEC.
2. Member States may extend some or all the measures provided for in paragraph 1 to a part or the entire free zone.
SECTION 8
VACCINATION
Article 49
Use, manufacture, sales and controls of foot-and-mouth disease vaccines
Member States shall ensure that:
(a) the use of foot-and-mouth disease vaccines and the administration of hyperimmune sera against foot-and-mouth disease are prohibited on their territory except as provided for in this Directive;
(b) the production, storage, supply, distribution and sale of foot-and-mouth disease vaccines on their territory are carried out under official control;
(c) the marketing of foot-and-mouth disease vaccines is under the supervision of the competent authorities in accordance with Community legislation;
(d) the use of foot-and-mouth disease vaccines for purposes other than to induce active immunity in animals of susceptible species, notably laboratory investigations, scientific research or testing of vaccines, is authorised by the competent authorities and carried out under appropriate bio-security conditions.
Article 50
Decision on introducing emergency vaccination
1. It may be decided to introduce emergency vaccination where at least one of the following conditions applies:
(a) outbreaks of foot-and-mouth disease have been confirmed and threaten to become widespread in the Member State where such outbreaks have been confirmed;
(b) other Member States are at risk due to the geographical situation of or the prevailing meteorological conditions in relation to reported outbreaks of foot-and-mouth disease in a Member State;
(c) other Member States are at risk due to epidemiologically relevant contacts between holdings on their territories and holdings keeping animals of susceptible species in a Member State where there are outbreaks of foot-and-mouth disease;
(d) Member States are at risk due to the geographical situation or the prevailing meteorological conditions in a neighbouring third country where there are outbreaks of foot-and-mouth disease.
2. When deciding on the introduction of emergency vaccination, consideration shall be given to the measures provided for in Article 15 and to the criteria listed in Annex X.
3. The decision to introduce emergency vaccination shall be adopted in accordance with the procedure referred to in Article 89(3).
4. The decision referred to in paragraph 3 to introduce emergency vaccination on its own territory may be requested:
(a) either by the Member State referred to in paragraph 1(a), or
(b) by a Member State referred to in paragraph 1(b), (c) or (d).
5. By way of derogation from paragraph 3, the decision to introduce emergency vaccination may be taken by the Member State concerned and implemented in accordance with this Directive, after a written notification to the Commission which shall include the specifications provided for in Article 51.
6. If a Member State introduces emergency vaccination in accordance with paragraph 5, that decision shall be immediately reviewed in the Standing Committee on the Food Chain and Animal Health and Community measures shall be adopted in accordance with the procedure referred to in Article 89(3).
7. By way of derogation from paragraph 4, a decision to introduce emergency vaccination in a Member State referred to in paragraph (1)(a) may be adopted in concertation with the affected Member State in accordance with the procedure referred to in Article 89(3) on the Commission's own initiative, if the condition in paragraph (1)(a) and paragraph (1)(b) apply.
Article 51
Conditions for emergency vaccination
1. The decision to introduce emergency vaccination in accordance with Article 50(3) and (4) shall specify the conditions under which such vaccination shall be carried out and these conditions must specify at least:
(a) the delimitation in accordance with Article 45 of the geographical area in which emergency vaccination is to be carried out;
(b) the species and the age of the animals to be vaccinated;
(c) the duration of the vaccination campaign;
(d) a specific prohibition on movements of vaccinated and non-vaccinated animals of susceptible species and their products;
(e) the special additional and permanent identification and special registration of the vaccinated animals pursuant to Article 47(2);
(f) other matters appropriate to the emergency situation.
2. The conditions for emergency vaccination as provided for in paragraph 1, shall ensure that such vaccination is carried out in accordance with Article 52, irrespective of whether the vaccinated animals are subsequently slaughtered or stay alive.
3. Member States shall ensure that an information programme shall be put in place to inform the public about the safety of meat, milk and dairy products from vaccinated animals for human consumption.
Article 52
Protective vaccination
1. Member States applying protective vaccination shall ensure that:
(a) the vaccination zone shall be regionalised in accordance with Article 45, where necessary in close cooperation with neighbouring Member States;
(b) vaccination shall be carried out swiftly and in conformity with the rules of hygiene and bio-security so as to avoid the spread of foot-and-mouth disease virus;
(c) all measures applied in the vaccination zone shall be carried out without prejudice to the measures provided for in Section 7;
(d) where the vaccination zone includes parts of or the entire protection or surveillance zone:
(i) the measures applicable for the protection zone or surveillance zone in accordance with this Directive shall be maintained within that part of the vaccination zone until such measures have been removed in accordance with Article 36 or Article 44;
(ii) after the measures applied in the protection zone and surveillance zone have been removed, the measures applicable for the vaccination zone as provided for in Articles 54 to 58 shall continue to apply.
2. Member States applying protective vaccination shall ensure that the vaccination zone is surrounded by a surveillance area (surveillance zone as defined by OIE) of at least 10 km width from the perimeters of the vaccination zone:
(a) in which vaccination is prohibited;
(b) in which intensified surveillance is carried out;
(c) in which the movement of animals of susceptible species is subject to controls by the competent authorities;
(d) which remains in place until the foot-and-mouth disease and infection free status is recovered in accordance with Article 61.
Article 53
Suppressive vaccination
1. Member States shall notify the Commission if they decide in accordance with Article 50 and taking into account all relevant circumstances, to introduce suppressive vaccination and shall provide details of the control measures to be taken which shall include at least those provided for in Article 21.
2. Member States shall ensure that suppressive vaccination is carried out:
(a) only within a protection zone;
(b) only on clearly identified holdings subject to the measures provided for in Article 10(1) and in particular subparagraph (a) thereof.
However, for logistical reasons and by way of derogation from Article 10(1)(a), the killing of all animals on such holdings may be delayed as long as necessary to comply with Directive 93/119/EEC and the provisions of Article 10(1)(c) of this Directive.
Article 54
Measures applicable in the vaccination zone during the period from the beginning of emergency vaccination until at least 30 days have elapsed following the completion of such vaccination (Phase 1)
1. Member States shall ensure that the measures provided for in paragraphs 2 to 6 are applied in the vaccination zone during the period from the beginning of the emergency vaccination until at least 30 days have elapsed following the completion of such vaccination.
2. Movement of live animals of susceptible species shall be prohibited between holdings within and out of the vaccination zone.
By way of derogation from the prohibition provided for in the first subparagraph, and after clinical inspection of such live animals and the herds of origin or dispatch of those animals, the competent authorities may authorise their direct transport for immediate slaughter in a slaughterhouse designated by the competent authority and situated within the vaccination zone or in exceptional cases close to that zone.
3. Fresh meat produced from vaccinated animals slaughtered during the period referred to in paragraph 1 shall:
(a) bear the mark provided for in Directive 2002/99/EC;
(b) be stored and transported separately from meat not bearing the mark referred to in point (a), and shall subsequently be transported in sealed containers to an establishment designated by the competent authorities for treatment in accordance with point 1 in Part A of Annex VII.
4. Milk and milk products produced from vaccinated animals may be placed on the market within or outside the vaccination zone, provided that, depending on the final use for either human consumption or non-human consumption, it has undergone at least one of the treatments referred to in Parts A and B of Annex IX. The treatment shall be carried out under the conditions set out in paragraph 5 in establishments situated in the vaccination zone or, if there is no establishment in that zone, in establishments situated outside the vaccination zone to which the raw milk is transported under the conditions set down in paragraph 7.
5. Establishments referred to in paragraphs 4 shall comply with the following conditions:
(a) the establishment shall be operated under permanent and strict official control;
(b) all milk used in the establishment shall either comply with paragraph 4 or the raw milk shall be obtained from animals outside the vaccination zone;
(c) during the whole production process the milk shall be clearly identified and transported and stored separately from raw milk and raw milk products which are not destined for dispatch outside the vaccination zone;
(d) transport of raw milk from holdings situated outside the vaccination zone to the establishments shall be carried out in vehicles which were cleaned and disinfected prior to the transport operation, and which have had no subsequent contact with holdings in a restricted zone keeping animals of susceptible species.
6. Compliance with the conditions in paragraph 5 shall be certified by the competent authority for milk intended for intra-Community trade. The competent authority shall supervise the control of compliance undertaken by the local veterinary authority and in the case of intra-Community trade communicate to other Member States and the Commission a list of those establishments which it has approved for the purpose of such certification.
7. Transport of raw milk from holdings situated within the vaccination zone to establishments situated outside the vaccination zone and the processing of that milk shall be subject to the following conditions:
(a) processing in establishments situated outside the vaccination zone of raw milk produced from animals of susceptible species kept within the vaccination zone shall be authorised by the competent authorities;
(b) the authorisation shall include instructions on and designation of the transport route to the designated establishment;
(c) transport shall be carried out in vehicles which were cleaned and disinfected prior to the transport operation, which are constructed and maintained in such a way that there is no leakage of milk during transport and which are equipped to avoid aerosol dispersion during the loading and unloading of the milk;
(d) before leaving the holding from where milk of animals of susceptible species was collected, the connection pipes, tires, wheel cases, the lower parts of the vehicle and any spillage of milk are cleansed and disinfected and after the last disinfection and before leaving the vaccination zone the vehicle had no subsequent contact with holdings in the vaccination zone keeping animals of susceptible species;
(e) the means of transport are strictly assigned to a defined geographical or administrative area, they are marked accordingly and may only be moved to another area after cleansing and disinfection under official supervision.
8. The collection and transport of samples of raw milk of animals of susceptible species from holdings situated in the vaccination zone to a laboratory other than a veterinary diagnostic laboratory approved for diagnosis of foot-and-mouth disease and the processing of the milk in such laboratories shall be forbidden.
9. The collection of semen for artificial insemination from donor animals of susceptible species kept in semen collection centres situated within the vaccination zone shall be suspended.
By way of derogation from the prohibition provided for in the first subparagraph, the competent authorities may authorise the collection of semen at semen collection centres within the vaccination zone for the production of frozen semen, subject to the following conditions:
(a) it is ensured that the semen collected during the period referred to in paragraph 1 is stored separately for at least 30 days, and
(b) prior to dispatch of the semen:
(1) either the donor animal has not been vaccinated and the conditions of Article 28(3)(b) and (c) apply, or
(2) the donor animal has been vaccinated following a negative test for antibodies against foot-and-mouth disease virus carried out prior to vaccination; and
(i) a negative result has been achieved in a test for the detection of either virus or viral genome or an approved test for the detection of antibody against non-structural proteins, carried out at the end of the quarantine period for the semen on samples taken from all animals of susceptible species present at that time on the semen collection centre, and
(ii) the semen complies with the conditions of Article 4(3) of Chapter II of Directive 88/407/EEC.
10. Collection of ova and embryos from donor animals shall be prohibited.
11. The placing on the market of products of animal origin other than those referred to in paragraphs 9 and 10 shall be subject to the conditions provided for in Articles 30, 31, 32 and 41.
Article 55
Measures applicable in the vaccination zone during the period from emergency vaccination until the survey and the classification of holdings are completed (Phase 2)
1. Member States shall ensure that the measures provided for in paragraphs 2 to 5 are applied in the vaccination zone during a period starting not earlier than 30 days from the date of completion of emergency vaccination and terminating with the completion of the measures provided for in Articles 56 and 57.
2. Movement of animals of susceptible species between holdings within and out of the vaccination zone shall be prohibited.
3. By way of derogation from the prohibition provided for in paragraph 2, the competent authorities may authorise direct transport for immediate slaughter of animals of susceptible species from holdings referred to in Article 57(5) to a slaughterhouse situated within or out of the vaccination zone on the following conditions:
(a) during transport and in the slaughterhouse those animals shall not come into contact with other animals of susceptible species;
(b) the animals shall be accompanied by an official document certifying that all animals of susceptible species on the holding of origin or dispatch have undergone a survey provided for in Article 56(2);
(c) the transport vehicles shall be cleansed and disinfected before loading and after the animals have been delivered, with the date and time of the cleaning and disinfection being recorded in the logbook of the means of transport;
(d) the animals shall have passed the ante-mortem health inspection at the slaughterhouse during the 24 hours before slaughter and have in particular undergone examination for mouth and feet disease and not shown signs of that disease.
4. Fresh meat, excluding offal, produced from vaccinated large and small ruminants during the period referred to in paragraph 1, may be placed on the market within and outside the vaccination zone under the following conditions:
(a) the establishment shall be operated under strict veterinary control;
(b) only fresh meat, excluding offal, which was subjected to the treatment described in points 1, 3 and 4 in Part A of Annex VIII or fresh meat obtained from animals reared and slaughtered outside the vaccination zone shall be processed in the establishment;
(c) all such fresh meat shall bear the health mark in accordance with Chapter XI of Annex I to Directive 64/433/EEC or, in the case of meat from other biungulates, the health mark provided for in Chapter III of Annex I of Directive 91/495/EEC, or, in the case of minced meat and meat preparations, the health mark provided for in Chapter VI of Annex I of Directive 94/65/EC;
(d) throughout the production process the fresh meat shall be clearly identified, and transported and stored separately from meat of different animal health status in accordance with this Directive.
5. Compliance with the conditions in paragraph 4 shall be certified by the competent authority for fresh meat intended for intra-Community trade. The competent authority shall supervise the control of compliance undertaken by the local veterinary authorities and, in the case of intra-Community trade, communicate to other Member States and the Commission a list of those establishments which it has approved for the purpose of such certification.
6. Fresh meat produced from vaccinated porcine animals slaughtered during the period referred to in paragraph 1 shall bear the health mark provided for in Directive 2002/99/EC and shall be stored and transported separately from meat not bearing that mark and subsequently be transported in sealed containers to an establishment designated by the competent authorities for treatment in accordance with point 1 in Part A of Annex VII.
7. Milk and milk products produced from vaccinated animals may be placed on the market within or outside the vaccination zone, provided that depending on the final use for either human consumption or non-human consumption it has undergone at least one of the treatments referred to in Parts A and B of Annex IX. Such treatment shall have been undergone in an establishment located within or outside the vaccination zone in accordance with the provisions in Article 54(4) to (8).
8. For the collection of semen, ova and embryos from animals of susceptible species, the measures provided for in Article 54(9) and (10) shall continue to apply.
9. The placing on the market of products of animal origin other than those referred to in paragraphs 4, 6, 7 and 8 shall be subject to the conditions provided for in Articles 30, 31, 32 and 41.
Article 56
Clinical and serological survey in the vaccination zone (Phase 2-A)
1. Member States shall ensure that the measures provided for in paragraphs 2 and 3 are applied in the vaccination zone during a period starting not earlier than 30 days from the date of completion of emergency vaccination and terminating with the completion of a clinical and serological survey.
2. A survey shall be carried out with the aim to identify herds of animals of susceptible species that had contact with the foot-and-mouth disease virus without showing overt clinical signs of the foot-and-mouth disease. That survey shall include a clinical inspection of all animals of susceptible species in all herds in the vaccination zone, and laboratory testing in accordance with paragraph 3.
3. Laboratory testing shall be carried out by use of tests complying with the criteria for diagnostic tests as set out in Annex XIII and approved in accordance with the procedure referred to in Article 89(2), and shall comply with one of the following conditions:
(a) testing for infection with the foot-and-mouth disease virus, either by an assay for antibodies against non-structural proteins of the foot-and-mouth disease virus, or by another approved method, shall meet criteria for sampling on holdings set out in point 2.2 of Annex III. Where the competent authorities use in addition sentinel animals, the conditions for restocking of infected holdings in Annex V shall be taken into account;
(b) testing for antibodies against non-structural proteins of the foot-and-mouth disease virus shall be carried out on samples taken from all vaccinated animals of susceptible species and their non-vaccinated offspring in all herds in the vaccination zone.
Article 57
Classification of herds in the vaccination zone (Phase 2-B)
1. Member States shall ensure that the holdings containing animals of susceptible species:
(a) are classified according to the outcome of the survey referred to in Article 56(2) and the criteria set out in Annex I;
(b) comply with the measures set out in paragraphs 2 to 4.
2. Holdings containing at least one animal suspected of being infected and where the presence of foot-and-mouth disease virus is confirmed in accordance with the criteria laid down in Annex I shall be subject to the measures provided for in Articles 10 and 21.
3. Holdings containing at least one animal of susceptible species suspected of being infected through previous contact with the foot-and-mouth disease virus but where further testing including all animals of susceptible species present on the holding confirmed the absence of circulating foot-and-mouth disease virus shall be subject to at least the following measures:
(a) animals of susceptible species on the holding shall:
(1) either be killed and the carcasses processed, or
(2) the animals shall be classified and
(i) the animals positive to at least one of the approved tests referred to in Article 56(3) shall be killed and their carcasses processed, and
(ii) the remaining animals of susceptible species on the holding shall be slaughtered under conditions authorised by the competent authorities;
(b) cleansing and disinfection of the holdings in accordance with Article 11;
(c) restocking of animals in accordance with Annex V.
4. Member States shall ensure that the following measures are applied to products derived from animals of susceptible species and produced during the period referred to in Article 56(1):
(a) fresh meat produced from the animals referred to in paragraph 3(2)(ii) shall be subject to Article 55(4), for meat from ruminants, and (6), for meat from porcine animals, respectively;
(b) milk and milk products produced from the animals referred to in paragraph 3(2)(ii) shall undergo at least one of the treatments specified in Parts A and B of Annex IX depending on the intended use and in compliance with the provisions in Article 54(4) to (8).
5. Animals of susceptible species on holdings where the presence of previous or present infection with the foot-and-mouth disease virus has been officially ruled out in accordance with Article 56(3) may be subject to the measures provided for in Article 58.
Article 58
Measures applicable in the vaccination zone after the completion of the survey and the classification of holdings until the foot-and-mouth disease and infection free status is recovered (Phase 3)
1. Member States shall ensure that the measures provided for in paragraphs 2 to 6 are applied in the vaccination zone after the completion of the measures laid down in Article 57 and until the foot-and-mouth disease and infection-free status has been recovered in accordance with Article 59.
2. Member States shall ensure that movement of animals of susceptible species between holdings situated in the vaccination zone is subject to authorisation.
3. Movement of animals of susceptible species out of the vaccination zone shall be prohibited. By way of derogation from this prohibition, direct transport to a slaughterhouse for immediate slaughter of animals of susceptible species may be authorised under the conditions provided for in Article 55(3).
4. By way of derogation from the prohibition in paragraph 2, the competent authorities may authorise the transport of unvaccinated animals of susceptible species in accordance with the following provisions:
(a) within 24 hours of loading, all animals of susceptible species on the holding have been subjected to clinical examination and have not shown clinical signs of foot-and-mouth disease, and
(b) the animals have completed a standstill on the holding of origin of at least 30 days during which no animal of susceptible species has been introduced onto the holding, and
(c) the holding of origin is not situated in a protection or surveillance zone, and
(d) the animals intended for transport were either individually subjected with negative results to tests for the detection of antibodies against the foot-and-mouth disease virus at the end of the isolation period, or a serological survey was completed on that holding in accordance with point 2.2 of Annex III irrespective of the species concerned;
(e) the animals were not exposed to any source of infection during their transportation from the holding of origin to the place of destination.
5. Non-vaccinated offspring of vaccinated dams shall be prohibited from leaving the holding of origin unless being transported to:
(a) a holding within the vaccination zone of the same health status as the holding of origin;
(b) a slaughterhouse for immediate slaughter;
(c) a holding designated by the competent authority, from which the offspring are to be sent directly to the slaughterhouse;
(d) any holding, after having obtained a negative result in a serological test for the detection of antibody against the foot-and-mouth disease virus carried out on a sample of blood taken prior to dispatch from the holding of origin.
6. Fresh meat produced from unvaccinated animals of susceptible species may be placed on the market inside and outside the vaccination zone under the following conditions:
(a) either the measures provided for in Article 57(3) have been completed in the entire vaccination zone or the animals are transported to the slaughterhouse under the conditions provided for in paragraph 3 or 4(d), and;
(b) the establishment shall be operated under strict veterinary control;
(c) only fresh meat produced from animals referred to in point (a) or from animals reared and/or slaughtered outside the vaccination zone or fresh meat referred to in paragraph 8 shall be processed in the establishment;
(d) all such fresh meat shall bear the health mark in accordance with Chapter XI of Annex I to Directive 64/433/EEC or in the case of meat from other biungulates, the health mark provided for in Chapter III of Annex I of Directive 91/495/EEC, or in the case of minced meat and meat preparations the health mark provided for in Chapter VI of Annex I of Directive 94/65/EC;
(e) throughout the production process the fresh meat shall be clearly identified, and transported and stored separately from meat of different animal health status in accordance with this Directive.
7. Fresh meat produced from vaccinated animals of susceptible species or from non-vaccinated seropositive offspring of vaccinated dams slaughtered during the period referred to in paragraph 1 shall bear the health mark provided for in Directive 2002/99/EC and shall be stored and transported separately from meat not bearing that stamp and subsequently be transported in sealed containers to an establishment designated by the competent authorities for treatment in accordance with point 1 in Part A of Annex VII.
8. By way of derogation from paragraph 7, fresh meat and trimmed offal produced from vaccinated large and small ruminants or their non-vaccinated seropositive offspring may be placed on the market within and outside the vaccination zone under the following conditions:
(a) the establishment shall be operated under strict veterinary control;
(b) only fresh meat excluding offal, which was subjected to the treatment described in point 1, 3 and 4 in Part A of Annex VIII or fresh meat referred to in paragraph 6 or produced from animals reared and/or slaughtered outside the vaccination zone are processed in the establishment;
(c) all such fresh meat shall bear the health mark in accordance with Chapter XI of Annex I to Directive 64/433/EEC or in the case of meat from other biungulates the health mark provided for in Chapter III of Annex I to Directive 91/495/EEC, or in the case of minced meat and meat preparations the health mark provided for in Chapter VI of Annex I to Directive 94/65/EC;
(d) throughout the production process the fresh meat shall be clearly identified, and transported and stored separately from meat which is of different animal health status in accordance with this Directive.
9. By way of derogation from paragraph 7, fresh meat from vaccinated porcine animals and their non-vaccinated seropositive offspring, produced during the period from the beginning of the survey until the measures provided for in Article 57 have been completed in the entire vaccination zone and until at least 3 months have elapsed after the last outbreak recorded in that zone, may only be placed on the national market of the Member State of origin within and outside the vaccination zone under the following conditions:
(a) the establishment shall be operated under strict veterinary control;
(b) only fresh meat from animals originating in holdings complying with the conditions in Article 57(5) or fresh meat obtained from animals reared and slaughtered outside the vaccination zone are processed in the establishment;
(c) all such fresh meat shall bear a health mark to be decided in accordance with Article 4(3) of Directive 2002/99/EC;
(d) throughout the production process the fresh meat shall be clearly identified, and transported and stored separately from meat of different animal health status in accordance with this Directive.
10. A Member State other than the Member State referred to in paragraph 9 may request a decision in accordance with the procedure provided for in Article 89(3) to extend the marketing of the meat referred to in paragraph 9 to its territory or part of its territory under conditions to be laid down under the same procedure.
11. The rules for dispatch from the vaccination zone of fresh meat from vaccinated porcine animals produced after the period referred to in paragraph 9 until free status has been regained in accordance with Article 61, shall be decided in accordance with the procedure provided for in Article 89(3).
12. Compliance with the conditions provided for in paragraph 6, paragraph 8 and where applicable under the provisions of paragraph 10, shall be certified by the competent authority for fresh meat intended for intra-Community trade. The competent authority shall supervise the control of compliance undertaken by the local veterinary authorities and shall in the case of intra-Community trade communicate to other Member States and the Commission a list of those establishments which they have approved for such certification.
13. By way of derogation from paragraph 8 a special health mark which cannot be confused with the health mark referred to in paragraphs 8(c) and 9(c), may be decided in accordance with the procedure referred to in Article 89(3) for fresh meat of ruminants not subjected to the treatment in accordance with Part A of Annex VIII, and minced meat and meat preparations produced from such meat, which are intended for placing on the market in the a specific region of the Member State of origin.
14. Milk and milk products produced from vaccinated animals may be placed on the market within and outside the vaccination zone, provided that depending on the final use for either human consumption or non-human consumption it has undergone at least one of the treatments referred to in Parts A and B of Annex IX. Such treatment shall have been undergone in an establishment located in the vaccination zone or in accordance with the provisions in Article 54(4) to (7).
15. The collection and transport of samples of raw milk of animals of susceptible species, from holdings situated in the surveillance zone to a laboratory other than a veterinary diagnostic laboratory approved for diagnosis of foot-and-mouth disease, and the processing of the milk in such laboratories, shall be subject to official authorisation and to appropriate measures to avoid any possible spread of foot-and-mouth disease virus.
16. The placing on the market of products of animal origin other than those referred to in paragraphs 6 to 11 and 13 to 15 shall be subject to the conditions provided for in Articles 30, 31, 32 and 42.
SECTION 9
RECOVERY OF THE FOOT-AND-MOUTH DISEASE AND INFECTION FREE STATUS
Article 59
Recovery of the foot-and-mouth disease and infection free status
The foot-and-mouth disease and infection free status of a Member State or a region thereof shall be recovered in accordance with the procedure referred to in Article 89(3), taking into account the conditions referred to in Articles 60 and 61.
Article 60
Recovery of status following eradication of foot-and-mouth disease without emergency vaccination
1. A Member State or region of a Member State regionalised in accordance with Article 45 shall recover its previous foot-and-mouth disease and infection free status following the control and eradication of one or more outbreaks of foot-and-mouth disease without vaccination under the following conditions:
(a) all the measures provided for in Articles 36 and 44 have been completed, and
(b) at least one of the following conditions applies:
(i) the relevant recommendations in the foot-and-mouth disease Chapter, as last amended, of the Animal Health Code of the OIE are met;
(ii) at least three months have elapsed after the last recorded outbreak of foot-and-mouth disease and clinical and laboratory surveillance carried out in accordance with Annex III has confirmed the absence of infection with the foot-and-mouth disease virus in the Member State or region concerned.
2. Decisions on recovering a foot-and-mouth disease and infection-free status shall be adopted in accordance with the procedure referred to Article 89(3).
Article 61
Recovery of status following eradication of foot-and-mouth disease with vaccination
1. A Member State or region of a Member State regionalised in accordance with Article 45 shall recover its previous foot-and-mouth disease and infection free status following the control and eradication of one or more outbreaks of foot-and-mouth disease with vaccination under the following conditions:
(a) all the measures provided for in Articles 36, 44, 54, 55, 56 and 57 have been completed, and
(b) at least one of the following conditions applies:
(i) the relevant recommendations in the foot-and-mouth disease Chapter, as last amended, of the Animal Health Code of the OIE are met;
(ii) at least three months have elapsed since the slaughter of the last vaccinated animal and serological surveillance has been carried out in accordance with the guidelines established in accordance with Article 70(3);
(iii) at least six months have elapsed since the last outbreak of foot-and-mouth disease or the completion of emergency vaccination, what ever event occurred later, and in accordance with the guidelines established in accordance with Article 70(3), a serological survey based on the detection of antibodies against non-structural proteins of the foot-and-mouth disease virus has demonstrated the absence of infection in vaccinated animals.
2. Decisions on recovering a foot-and-mouth and infection-free status shall be adopted in accordance with the procedure referred to Article 89(3).
Article 62
Modifications of measures to recover the foot-and-mouth disease and infection-free status
1. By way of derogation from Article 60 it may be decided in accordance with the procedure referred to in Article 89(3), to withdraw the restrictions applied in accordance with this Directive after the requirements provided for in Articles 36 and 44 have been met and the clinical and serological survey has been completed and confirmed the absence of foot-and-mouth disease virus infection.
2. By way of derogation from Article 61 it may be decided in accordance with the procedure referred to in Article 89(3), to withdraw the restrictions applied in accordance with this Directive after the clinical and serological survey provided for in Article 56 and the measures provided for in Article 57 have been completed and confirmed the absence of foot-and-mouth disease virus infection.
3. Without prejudice to paragraphs 1 and 2 it may be decided in accordance with the procedure referred to in Article 89(3) that no animals of a susceptible species shall be removed from the territory or region of the Member State where the outbreak of foot-and-mouth disease has occurred to another Member State until the foot-and-mouth disease and infection free status is recovered in accordance with the conditions of the Animal Health Code of the OIE, unless such animals:
(a) have not been vaccinated and are consigned directly to a slaughter house for immediate slaughter; or
(b) have been isolated for at least 30 days immediately prior to loading and have undergone a serological test for the detection of antibody against foot-and-mouth disease virus structural proteins, carried out with negative results on samples taken during the 10 days prior to loading.
4. Without prejudice to paragraph 2 it may be decided in accordance with the procedure referred to in Article 89(3) that until the foot-and-mouth disease and infection free status is recovered in accordance with the conditions of the Animal Health Code of the OIE the radius of the surveillance area around the vaccination zone referred to in Article 52(2) shall be reduced after the completion with satisfactory results of the measures provided for in Article 57.
Article 63
Certification of animals of susceptible species and products derived from such animals for intra-Community trade
Member States shall ensure that additional certification for intra-Community trade in animals of susceptible species or products derived from such animals required in accordance with this Directive shall be continued until the foot-and-mouth disease and infection free status of the Member State or part of the territory of a Member State has been recovered in accordance with Articles 60 and 61.
Article 64
Movement of vaccinated animals of susceptible species after the recovery of the foot-and-mouth disease and infection-free status
1. The dispatch from one Member State to another Member State of animals of susceptible species vaccinated against foot-and-mouth disease shall be prohibited.
2. By way of derogation from the prohibition in paragraph 1, it may be decided in accordance with the procedure referred to in Article 89(2) to adopt specific measures with regard to vaccinated animals of susceptible species kept in zoos and included in a programme for wildlife conservation or kept on premises for farm animal resources that have been listed by the competent authorities as breeding nucleus of animals indispensable for the survival of the breed, subject to appropriate provisions in the Animal Health Code of the OIE.
CHAPTER III
PREVENTATIVE MEASURES
SECTION 10
LABORATORIES AND ESTABLISHMENTS HANDLING FOOT-AND-MOUTH DISEASE VIRUS
Article 65
Laboratories and establishments handling live foot-and-mouth disease virus
Member States shall ensure that:
(a) laboratories and establishments in which live foot-and-mouth disease virus, its genome, antigens or vaccines produced from such antigens are handled for research, diagnosis or manufacture are strictly controlled by the competent authorities;
(b) the handling of live foot-and-mouth disease virus for research and diagnosis is carried out only in approved laboratories listed in Part A of Annex XI;
(c) the handling of live foot-and-mouth disease virus for the manufacturing of either inactivated antigens for the production of vaccines or vaccines and related research is carried out only in the approved establishments and laboratories listed in Part B of Annex XI;
(d) the laboratories and establishments referred to in points (b) and (c) are operated at least according to the bio-security standards set out in Annex XII.
Article 66
Checks of laboratories and establishments handling live foot-and-mouth disease virus
Veterinary experts from the Commission, in collaboration with the competent authorities of the Member States, shall carry out spot-checks to ascertain whether the security systems applied in the establishments and laboratories referred to in Parts A and B of Annex XI comply with the bio-security standards set out in Annex XII.
Article 67
Modification of the list of approved laboratories and establishments handling live foot-and-mouth disease virus
1. The list of establishments and laboratories in Part A and B of Annex XI may be amended in accordance with the procedure referred to in Article 89(3), in the light of the spot-checks provided for in Article 66.
2. The list of establishments and laboratories in Part A and B of Annex XI shall be regularly updated based on written information submitted by the Member States, in accordance with the procedure referred to in Article 89(2).
Article 68
National Laboratories
1. Member States shall ensure that:
(a) laboratory testing for foot-and-mouth disease is carried out in laboratories authorised for such testing by the competent authorities;
(b) laboratory testing to confirm the presence of foot-and-mouth disease virus or other vesicular disease viruses is carried out in accordance with Article 71 by one of the laboratories listed in Part A of Annex XI;
(c) one of the laboratories listed in Part A of Annex XI shall be designated as the national reference laboratory for the Member State on whose territory it is situated, and it shall be responsible for coordinating standards and methods of diagnosis in that Member State;
(d) the national reference laboratory carries out at least the functions and duties set out in Annex XV;
(e) the national reference laboratory referred to in point (c) liases with the Community Reference Laboratory provided for in Article 69 and in particular ensures the sending of appropriate samples to the Community Reference Laboratory.
2. The national reference laboratory referred to in paragraph 1(c) of one Member State may provide the services of a national reference laboratory to one or more other Member States. Member States which have no national reference laboratory situated on their territory may use the services of the national reference laboratory in one or more other Member States.
That cooperation shall be formalised in a mutual agreement between the competent authorities of the Member States concerned, which shall be notified to the Commission. Such cooperation shall be listed in the special column in the table in Part A of Annex XI.
3. Member States shall ensure that laboratory investigations provided for in this Directive are first of all carried out to confirm or rule out foot-and-mouth disease and to exclude other vesicular diseases.
Where an outbreak of foot-and-mouth disease has been confirmed and the serotype of the virus was identified, that virus shall be antigenically characterised in relation to the reference vaccine strains, where necessary with the assistance of the Community Reference Laboratory.
Samples from domestic livestock showing signs of vesicular disease which are negative for foot-and-mouth disease virus and, where relevant, Swine Vesicular Disease virus shall be sent to the Community Reference Laboratory for further investigation.
4. Member States shall ensure that the national reference laboratory on their territory is adequately equipped and staffed with the appropriate numbers of trained personnel to carry out the laboratory investigations required in accordance with this Directive.
Article 69
Community Reference Laboratory
1. The Community Reference Laboratory shall be designated in agreement with the laboratory concerned and in accordance with the procedure referred to in Article 89(2), for a period to be determined under that procedure.
2. When designating a Community Reference Laboratory, the technical and scientific competence of the laboratory as well as the expertise and excellence of the scientific and technical staff employed shall firstly be taken into account.
3. The Commission shall review the designation of the Community Reference Laboratory by the end of the designated period of operation or earlier in the light of its compliance with the functions and duties of the Community Reference Laboratory specified in Annex XVI.
Article 70
Security standards and guidelines for surveillance, code of conduct for approved laboratories and establishments handling live foot-and-mouth disease virus
1. An Operational Manual for Minimum Standards for Laboratories working with the foot-and-mouth disease virus in vitro and in vivo may be adopted in accordance with the procedure referred to in Article 89(2).
2. Guidelines for the surveillance required to recover the foot-and-mouth disease and infection free status may be adopted in accordance with the procedure referred to in Article 89(2).
3. A uniform code of good conduct for the security systems applied in the establishments and laboratories listed in Parts A and B of Annex XI may be adopted in accordance with the procedure referred to in Article 89(2).
SECTION 11
DIAGNOSIS OF FOOT-AND-MOUTH DISEASE
Article 71
Standards and tests for the diagnosis of foot-and-mouth disease and for the differential diagnosis of other vesicular diseases
1. Member States shall ensure that the national laboratories use the tests and standards for diagnosis set out in Annex XIII.
2. A decision regarding the suitable arrangements for the purchase, storage and supply to national laboratories of sufficient quantities of specific reagents or diagnostic tests in case of an emergency, in particular with regard to the measures provided for in Article 56(3) may be adopted in accordance with the procedure referred to in Article 89(2).
3. An Operational Manual for the diagnosis of foot-and-mouth disease and the differential diagnosis of vesicular diseases other than swine vesicular disease may be adopted in accordance with the procedure referred to in Article 89(2).
SECTION 12
CONTINGENCY PLANS AND REAL TIME ALERT EXERCISES
Article 72
Contingency plans
1. Member States shall draw up a contingency plan specifying the national measures required to maintain a high level of foot-and-mouth disease awareness and preparedness, and environmental protection and to be implemented in the event of an outbreak of foot-and-mouth disease.
2. The contingency plan shall provide for the access to all facilities, equipment, personnel and other appropriate materials necessary for the rapid and efficient eradication of an outbreak of foot-and-mouth disease, it shall ensure coordination with neighbouring Member States and encourage cooperation with neighbouring third countries.
3. The contingency plan shall provide for measures to be implemented in the event of a worst case scenario as referred to in point 12 of Annex XVII and shall give indications of:
(a) the vaccine requirements considered necessary in the event of emergency vaccination, and
(b) the regions containing densely populated livestock areas, taking into account the criteria set down in Annex X.
4. The contingency plan shall ensure that all necessary arrangements are made to prevent any avoidable damage to the environment in the event of an outbreak, while ensuring at the same time the highest disease control level, and minimise any damage caused as a result of an outbreak, in particular if it is necessary to bury or burn the carcasses of dead or killed animals on site.
5. The criteria and requirements for drawing up the contingency plan shall be those set out in Annex XVII. Those criteria and requirements may be amended taking into account the specific nature of foot-and-mouth disease and progress made in the development of disease control and environmental protection measures in accordance with the procedure referred to in Article 89(2).
6. The Commission shall examine the contingency plans in order to determine whether they permit the objective provided for in paragraph 1 to be attained and shall suggest to the Member State concerned any amendments required, in particular to ensure that such plans are compatible with those of the other Member States.
7. The contingency plans shall be approved in accordance with the procedure referred to in Article 89(2).
8. Member States shall ensure that significant modifications in their approved contingency plans are notified to the Commission without delay.
9. The revised contingency plans may subsequently be approved in accordance with the procedure referred to in Article 89(2), to take into account developments in the situation.
10. In any case, every five years each Member State shall update its contingency plan in particular in the light of real-time alert exercises referred to in Article 73, and submit it to the Commission for approval in accordance with the procedure referred to in Article 89(2).
Article 73
Real-time alert exercises
1. Member States shall ensure that real-time alert exercises are carried out in accordance with their approved contingency plan and Annex XVII.
2. Member States shall ensure that, where possible and practical, real-time alert exercises are carried out in close collaboration with the competent authorities of neighbouring Member States or third countries.
3. Member States shall inform the Commission about the main results of real-time alert exercises. That information shall be submitted to the Commission as part of the information required in Article 8 of Directive 64/432/EEC.
SECTION 13
CONTROL CENTRES AND EXPERT GROUPS
Article 74
National/Central disease control centres - Functions and duties
1. Member States shall ensure that a fully functional national/central disease control centre may be immediately established in the event of foot-and-mouth disease outbreaks.
2. The national/central disease control centre shall first of all direct and monitor the operations of local disease control centres as provided for in Article 76. Certain functions originally attributed to the national/central disease control centre may subsequently be transferred to the local disease control centre operated at the administrative level provided for in Article 2(2)(p) of Directive 64/432/EEC or higher provided that the tasks of the national disease control centre are not compromised.
3. The national/central disease control centre shall be at least responsible for:
(a) designing the necessary control measures;
(b) ensuring the prompt and efficient implementation of those measures by the local disease control centres;
(c) deploying staff and other resources to local disease control centres;
(d) providing information to the Commission, to the competent authorities of other Member States and other national authorities including competent environmental authorities and bodies, as well as veterinary, agricultural and trading organisations and bodies;
(e) organising an emergency vaccination campaign and also the delimitation of vaccination zones;
(f) liasing with diagnostic laboratories;
(g) liasing with competent environmental authorities to coordinate the actions on veterinary and environmental safety;
(h) liasing with the media;
(i) liasing with the enforcement bodies to ensure adequate implementation of specific legal measures.
Article 75
National/Central disease control centres - Technical requirements
1. Member States shall ensure that the national/central disease control centres have all the necessary means including staff, facilities and equipment, to manage an efficient eradication campaign.
2. The means referred to in paragraph 1 shall include at least the following:
(a) a herd identifier and animal location system, preferably computerised;
(b) all suitable means of communication including telephones, fax and if possible facilities for communication with the media;
(c) a communication system allowing exchange of information with the local disease control centres, the laboratories and other relevant organisations, preferably computerised;
(d) maps and other sources of information that can be used in directing control measures;
(e) a shared daily journal which shall be maintained to record in chronological order all the events associated with an outbreak of foot-and-mouth disease and allowing different activities to be linked and coordinated;
(f) lists of national and international organisations and laboratories that are interested in an outbreak of foot-and-mouth and shall be contacted in such an event;
(g) lists of staff and other persons who may be called upon immediately to serve at local disease control centres or in expert groups provided for in Article 78 in the event of an outbreak of foot-and-mouth disease;
(h) lists of competent environmental protection authorities and bodies to contact in the event of an outbreak of foot-and-mouth disease;
(i) maps identifying appropriate processing site areas;
(j) lists of treatment and processing undertakings authorised to treat or process animal carcasses and animal waste that could be commissioned in the event of an outbreak of foot-and-mouth disease, in particular, indicating their capacity, address and other contact details;
(k) lists of measures to monitor and control disinfectant run-off as well as body tissue and fluid displacement into the surrounding environment as a result of carcass decomposition, particularly into surface waters and groundwaters.
Article 76
Local disease control centres - set-up, functions and duties
1. Member States shall ensure that fully functional local disease control centres may be established immediately in the event of outbreaks of foot-and-mouth disease.
2. Member States shall ensure that within the framework of their contingency plans provisions are made for likely locations of local disease control centres, their organisation, staff, accommodation, facilities and equipment, management systems, communication lines as well as information channels.
3. Member States shall ensure the local disease control centres act in close coordination and cooperation with the national/central disease control centre, in particular in relation to the measures provided for in Article 74(3)(b).
4. Member States shall ensure that local disease control centres have the necessary organisation to ensure the prompt implementation of the measures provided for in this Directive to be applied in the event of an outbreak of foot-and-mouth disease.
Article 77
Local disease control centres - Technical requirements
1. Member States shall ensure that the local disease control centres have staff, facilities and equipment as required, and a clear management structure and effective management to ensure the prompt implementation of the measures relating to the epidemiological inquiry, environmental protection, processing of carcasses from infected herds, official surveillance of the zones, tracing, welfare and emergency slaughter, cleansing and disinfection and others measures of sanitation, emergency vaccination, and all other policy decisions.
2. The local disease control centres shall have at least:
(a) one telephone line reserved for communication with the national disease control centre accessible phone lines where farmers and other rural residents can obtain recent, accurate information about the measures taken;
(b) field staff equipped with necessary tools for communication and effective management of all necessary data;
(c) a record system, preferably computer-based, connected to the national disease control centre and to all necessary databases, laboratories and other organisations;
(d) a shared daily journal which shall be maintained to record in chronological order all the events associated with an outbreak of foot-and-mouth and allowing different activities to be linked and coordinated;
(e) up-to-date lists of persons, including private veterinarians, and local organisations in each region who shall be contacted and may be involved in the event of an outbreak of foot-and-mouth disease;
(f) up-to-date lists of holdings to which the provisions of Article 15 and 18 may be applied in the case of an outbreak of foot-and-mouth disease;
(g) up-to-date inventories of possible burning or burial places for animals killed in accordance with this Directive and to be processed in accordance with Community and national legislation on the protection of the environment;
(h) up-to-date list of competent environmental authorities in each region, as well as other environmental bodies who must be contacted and are to be involved in the event of an outbreak of foot-and-mouth disease;
(i) maps identifying suitable disposal sites for burial of carcasses that will not present a risk of harm to the environment, in particular to surface waters or groundwaters;
(j) list of treatment and disposal undertakings authorised to treat or dispose of animal carcasses and animal waste;
(k) list of measures to monitor and control disinfectant run-off as well as body tissue and fluid displacement into the surrounding environment as a result of carcass decomposition, particularly into surface waters and groundwaters.
Article 78
Expert Group
1. Member States shall create a permanently operational expert group, which is composed of epidemiologists, veterinary scientists and virologists in a balanced way, to maintain expertise in order to assist the competent authority in ensuring preparedness against an outbreak of foot-and-mouth disease.
By way of derogation from the first subparagraph, Member States with a limited number of animals of susceptible species may arrange a formalised agreement with other Member States on mutual assistance in regard of the expert group. These arrangements shall be detailed in the contingency plans referred to in Article 72.
2. In case of a suspicion of an outbreak of foot-and-mouth disease the expert group shall at least:
(a) evaluate the clinical picture and the epidemiological situation;
(b) give advice regarding the sampling and analyses needed for diagnosing the foot-and-mouth disease together with the additional actions and measures to be taken.
3. In case of an outbreak of foot-and-mouth the expert group shall at least:
(a) conduct at least in the index case and if necessary on the spot, an evaluation of the clinical picture and an analysis of the epidemiological inquiry in order to collect the necessary data for determining:
(i) the origin of the infection;
(ii) the date of introduction of the infectious agent;
(iii) the possible spread of the disease;
(b) report to the Chief Veterinary Officer and the national disease control centre;
(c) give advice on screening, sampling, test procedures, control and the other measures to be applied and on the strategy to be implemented, including advice on bio-security measures on holdings or on premises referred to in Article 16, and in relation to emergency vaccination;
(d) follow up and guide the epidemiological inquiry;
(e) supplement the epidemiological data with geographical, meteorological and other necessary information;
(f) analyse the epidemiological data and perform risk assessments at regular intervals;
(g) assist in ensuring that the processing of animal carcasses and animal waste is done with a minimum of detrimental effect on the environment.
SECTION 14
ANTIGEN AND VACCINE BANKS
Article 79
National antigen and vaccine banks
1. Member States may within the framework of the contingency plan establish or maintain national antigen and vaccine banks for the storage of reserves for emergency vaccination of antigens or vaccines authorised in accordance with Directive 2001/82/EC.
2. Member States may retain establishments for the packaging and storage of vaccines in the case of emergency vaccination.
3. Member States shall ensure that the antigen and formulated vaccine in the national antigen and vaccine banks comply with the minimum standards laid down for the Community antigen and vaccines bank with respect to safety, sterility and content of non-structural proteins.
4. Member States maintaining a national antigen and vaccine bank shall inform the Commission about the antigen and vaccine stocks kept. Such information shall be submitted to the Commission every 12 months as part of the information required by Article 8 of Directive 64/432/EEC. The information on quantities and subtypes of antigens or authorised vaccines stored in the national antigen and vaccine bank shall be treated as classified information and in particular shall not be published.
Article 80
Community antigen and vaccine bank
1. A Community antigen and vaccine bank shall be established in accordance with the procedure referred to in Article 89(2).
2. The Commission shall ensure that Community reserves of concentrated inactivated antigens for the production of foot-and-mouth disease vaccines are maintained on the premises of the Community antigen and vaccine bank. For that purpose, the number of doses and the diversity of strains and subtypes of antigen of foot-and-mouth disease virus and, if necessary, of authorised in accordance with Directive 2001/82/EC vaccines stored in the Community antigen and vaccine bank shall be decided in accordance with the procedure referred to in Article 89(2), taking into account the needs as estimated in the context of the contingency plans provided for in Article 72 and the epidemiological situation, where appropriate after consultation with the Community Reference Laboratory.
3. The information on quantities and subtypes of antigens or authorised vaccines stored in the Community antigen and vaccine bank shall be treated as classified information and in particular shall not be published.
4. The conditions for the establishment and maintenance of Community reserves of antigen and authorised vaccines at the premises of preferably at least two manufacturing establishments shall be laid down in contracts concluded between the Commission and the manufacturing establishments. Such contracts shall include at least:
(a) conditions for supply of quantities and subtypes of concentrated inactivated antigen;
(b) conditions for secure storage of antigen and authorised vaccines;
(c) guarantees and conditions of rapid formulation, production, bottling, labelling and distribution of vaccines.
5. The conditions and guarantees referred to in paragraph 4(a) to (c) may be amended in accordance with the procedure referred to in Article 89(3).
Article 81
Supply and storage of concentrated inactivated antigen
The Commission shall ensure that the contracted manufacturer of the concentrated inactivated antigen supplied to the Community antigen and vaccine bank, guaranties conditions for the supply and storage of concentrated inactivated antigen of the foot-and-mouth disease virus at least equivalent to those laid down in point 1 of Annex XIV.
Article 82
Formulation, production, bottling, labelling and distribution of vaccine
1. The Commission shall ensure that the contracted manufacturer of the concentrated inactivated antigen supplied to the Community antigen and vaccine bank guaranties conditions for the formulation, finishing, bottling, labelling and delivery of vaccines reconstituted from antigens referred to in Article 81 at least equivalent to those laid down in point 2 of Annex XIV.
2. In case of emergency and with due regard to the epidemiological situation, the Commission shall be authorised to arrange for the immediate production, bottling, labelling, temporary storage and distribution of necessary quantities of vaccines reconstituted from any suitable antigen.
Article 83
Access to the Community antigen and vaccine bank
1. Member States shall have access to the Community antigen and vaccine bank following a request to the Commission.
The Commission shall, within the limits of the Community reserves of antigens and vaccines, immediately arrange for the formulation, production, bottling, labelling and distribution of the required quantities and subtypes of vaccines, in particular in application of Article 51.
2. Member States that maintain a national antigen and vaccine bank or Member States that are associated to an international antigen and vaccine bank shall have the same rights and obligations to the Community antigen and vaccine bank as other Member States without such reserves.
3. Where it is in the interest of the Community, the Commission may supply or lend to third countries antigens from the Community reserves or vaccines reconstituted from such antigens.
Without prejudice to agreements concluded between the Community and third countries, access of third countries to the Community antigen and vaccine bank shall be authorised in accordance with the procedure referred to in Article 89(2), subject to detailed arrangements between the Commission and the third country concerned on the financial and technical cooperation to be adopted under that procedure.
4. Following the use of the antigen or formulated vaccine from the Community reserves, the Commission shall ensure that the used antigen or vaccine is replaced as soon as possible and according to the epidemiological situation.
Article 84
Testing of foot-and-mouth disease vaccines
1. The Commission shall be responsible for arranging independent testing for potency and innocuity of vaccines reconstituted from antigen stored in the Community antigen and vaccine bank, and of vaccines reconstituted from other antigens and intended for use within the framework of Community assistance to control measures against foot-and-mouth disease in third countries in accordance with Articles 82(2) and 83(3).
2. For the purpose of the testing referred to in paragraph 1 the Commission may employ the services of an independent Community Coordinating Institute.
If necessary, the Community Coordinating Institute shall be designated, and detailed rules on its functions, responsibilities and Community financial contributions shall be adopted, in accordance with the procedure referred to in Article 89(2).
3. Without prejudice to the standards for potency, safety and production procedures provided for in Community legislation, vaccines reconstituted from antigen stored within the Community antigen and vaccine bank shall meet at least the minimum standards for potency, safety and production procedures laid down in the European Pharmacopoeia and the relevant provisions of the OIE Manual.
SECTION 15
FOOT-AND-MOUTH DISEASE IN OTHER SPECIES
Article 85
Additional measures to prevent and control foot-and-mouth disease
1. Without prejudice to Regulation (EC) No 1774/2002, and any implementing legislation, Member States shall ensure that the prohibition on swill feeding in accordance with Community and national legislation is applicable to all animals irrespective of their use or the place inhabited by these animals. Detailed rules for the control measures to be applied by Member States may be adopted in accordance with the procedure referred to in Article 89(2).
2. Detailed rules for the control of foot-and-mouth disease in animals referred to in Article 2(a) second sentence may be adopted in accordance with the procedure referred to in Article 89(2).
3. Immediately after the competent authority of a Member State has information that wild animals are suspected of being infected with foot-and-mouth disease, it shall take all appropriate measures to confirm or rule out the presence of the disease by investigations of all wild animals of susceptible species shot or found dead, including laboratory testing. It shall inform owners of animals of susceptible species and hunters on the suspicion.
4. As soon as the competent authority of a Member State has confirmation of a primary case of foot-and-mouth disease in wild animals, it shall immediately apply the measures provided for in Part A of Annex XVIII in order to reduce the spread of disease, and shall draw up a plan for the eradication of foot-and-mouth disease in accordance with Part B of Annex XVIII. It shall inform owners of animals of susceptible species and hunters of the confirmed case.
CHAPTER IV
IMPLEMENTING MEASURES
Article 86
Penalties
The Member States shall lay down the 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 must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by the date specified in Article 93(1) at the latest and shall notify it without delay of any subsequent amendment affecting them.
Article 87
Procedures for implementing specific articles, for the adoption of further detailed rules for the implementation of this Directive and for amending the Annexes
1. Detailed rules for the implementation of Articles 75(2) and 77(2) may be adopted in accordance with the procedure referred to in Article 89(2).
2. Further detailed rules for the implementation of this Directive may be adopted in accordance with the procedure referred to in Article 89(2).
3. The Annexes to this Directive may be amended in accordance with the procedure referred to in Article 89(2) or, in the case of Annex XI, in accordance with the procedure referred to in Article 89(3).
Article 88
Procedure for the adoption of ad hoc epidemiological measures
Where, in implementing the measures provided for by this Directive, a Member State determines that a measure is not adapted to the epidemiological situation, or where the foot-and-mouth disease virus appears to be spreading despite the measures taken in accordance with this Directive, a Decision may be adopted on an ad hoc basis in accordance with the procedure referred to in Article 89(3) to authorise that Member State to implement alternative measures with equivalent epidemiological effect for a limited period of time appropriate to the epidemiological situation.
Article 89
Committee procedure
1. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health established by Regulation (EC) No 178/2002.
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply.
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, Articles 5 and 7 of Decision 1999/468/EC shall apply,
Τhe period laid down in Article 5(6) of that Decision shall be set at 15 days.
4. The Committee shall adopt its Rules of Procedure.
CHAPTER V
TRANSITIONAL AND FINAL PROVISIONS
Article 90
Amendment to Directive 92/46/EEC
In point 4(b) of Chapter I of Annex A to Council Directive 92/46/EEC, the second subparagraph is deleted.
Article 91
Repeals
1. Directive 85/511/EEC, without prejudice to the obligations of the Member States concerning the time-limits for transposition and application set out in Annex XIX, and Decisions 89/531/EEC of 25 September 1989 designating a reference laboratory for the identification of foot-and-mouth diseasevirus and determining the functions of that laboratory(40) and 91/665/EEC of 11 December 1991 designating a Community Coordinating Institute for foot-and-mouth disease vaccines and laying down its functions(41), adopted in implementation thereof, are hereby repealed as from the date referred to in Article 93.
2. References made to the repealed Directive 85/511/EEC shall be construed as being made to this Directive and should be read in accordance with the correlation table in Annex XX.
Article 92
Transitional provisions
1. Transitional provisions may be adopted in accordance with the procedure referred to in Article 89(2) for a period of five years from the date of entry into force of this Directive.
2. Within six months after the date referred to in Article 94, Member States shall submit to the Commission amended contingency plans to take into account the provisions of Article 72.
The Commission shall examine those contingency plans against the objectives of this Directive and shall suggest to the Member States concerned any amendments it deems necessary, in particular to ensure that the plans are compatible with those of the other Member States.
Those amended contingency plans shall be approved in accordance with the procedure referred to in Article 89(2).
Article 93
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 2004 at the latest. They shall forthwith inform the Commission thereof.
They shall apply these provisions as from 1 July 2004.
When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by 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.
Article 94
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
Article 95
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 29 September 2003.
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COUNCIL REGULATION (EC) No 73/2006
of 13 January 2006
amending Regulation (EC) No 92/2002 imposing definitive anti-dumping duty and collecting definitively the provisional anti-dumping duty imposed on imports of urea originating in Belarus, Bulgaria, Croatia, Estonia, Libya, Lithuania, Romania and the Ukraine
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (1), and in particular Articles 8 and 9 thereof,
Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,
Whereas:
A. PREVIOUS PROCEDURE
(1)
On 21 October 2000, by means of a notice published in the Official Journal of the European Communities, the Commission announced the initiation of an anti-dumping proceeding (2) in respect of imports of urea (‘the product concerned’) originating in Belarus, Bulgaria, Croatia, Egypt, Estonia, Libya, Lithuania, Poland, Romania and the Ukraine.
(2)
This proceeding resulted in provisional anti-dumping duties being imposed in July 2001 on imports of urea originating in Belarus, Bulgaria, Croatia, Estonia, Libya, Lithuania, Romania and the Ukraine and a termination of the proceeding concerning imports of urea originating from Egypt and Poland by Commission Regulation (EC) No 1497/2001 (3).
(3)
In the same Regulation, the Commission accepted an undertaking offered by the exporting producer in Bulgaria, Chimco AD. Subject to the conditions set out in Regulation (EC) No 1497/2001, imports of the product concerned into the Community from this company were exempted from the said provisional anti-dumping duties, pursuant to Article 3(1) of the same Regulation.
(4)
Definitive duties were later imposed on imports of urea originating in Belarus, Bulgaria, Croatia, Estonia, Libya, Lithuania, Romania and the Ukraine by Council Regulation (EC) No 92/2002 (4). Subject to the conditions set out therein, this Regulation also granted goods produced and directly exported to the first independent customer in the Community by Chimco AD an exemption to the definitive anti-dumping duties as an undertaking had already been accepted definitively from this company at the provisional stage of the proceeding. As mentioned in recital 137 of the definitive Regulation, the minimum price of the undertaking was adapted due to a change in the injury elimination level.
B. FAILURE TO COMPLY WITH THE UNDERTAKING
(5)
The undertaking offered by Chimco AD obliges the company concerned, inter alia, to export the product concerned to the Community at or above certain minimum import price levels (‘MIPs’) specified therein. This minimum price level has to be respected on a quarterly weighted average. The company also undertakes not to circumvent the undertaking by making compensatory arrangements with any other party. Furthermore, Chimco AD is obliged to send to the European Commission a quarterly report of all its exports sales of the product concerned to the European Community.
(6)
Chimco AD failed to submit more data for two quarterly reports in a technically acceptable manner. Further, afterwards, Chimco AD no longer submitted any data in respect of the quarterly reports. It is therefore found, that the company did not respect its obligation to send to the European Commission quarterly reports of all its exports sales of the product concerned to the European Community and had therefore breached the undertaking.
(7)
Commission Regulation (EC) No 2082/2005 (5) sets out in more detail the nature of the breaches found.
(8)
In view of these breaches, acceptance of the undertaking offered by Chimco AD (Taric additional code A272) has been withdrawn by Commission Regulation (EC) No 2082/2005 and a definitive anti-dumping duty should be imposed forthwith on imports of the product concerned when produced and exported by Chimco AD.
(9)
In accordance with Article 8(9) of Regulation (EC) No 384/96, the rate of the anti-dumping duty must be determined on the basis of the facts established within the context of the investigation which led to the undertaking. As the investigation in question was concluded with a final determination as to dumping and injury, by Regulation (EC) No 92/2002, it is considered appropriate that the definitive anti-dumping rate is set at the level and in the form imposed by that Regulation, namely EUR 21,43 per ton before duty, to the net, free-at-Community frontier price.
C. AMENDMENT OF REGULATION (EC) No 92/2002
(10)
In view of the above, Regulation (EC) No 92/2002 should be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 92/2002 is hereby amended as follows:
1.
In Article 1(2), the row concerning Bulgaria shall be replaced by the following:
‘Country of origin
Produced by
Definitive anti-dumping duty (EUR per ton)
TARIC additional code
Bulgaria
All companies
21,43
-’
2.
In Article 2(1) the below line of the table concerning Bulgaria shall be deleted:
‘Country
Company
TARIC additional code
Bulgaria
Chimco AD, Shose az Mezdra, 3037 Vratza
A272’
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, 13 January 2006.
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*****
// // // REGULATION (EEC) No 2037/88
of 8 July 1988
abolishing certain Portuguese import quotas in the eggs and poultrymeat sector on products from Spain fixed by Regulation (EEC) No 4009/87
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 thereof,
Having regard to Council Regulation (EEC) No 3792/85 of 20 December 1985 laying down the arrangements applying to trade in agricultural products between Spain and Portugal (1), amended by Regulation (EEC) No 222/88 (2), and in particular Article 13 thereof,
Whereas Portuguese import quotas for 1988 on certain eggs and poultrymeat sector products from Spain were set by Commission Regulation (EEC) No 4009/87 (3);
Whereas under Article 4 (4) (b) of Regulation (EEC) No 3792/85 these quotas are added to the quotas determined under Article 269 of the Act of Accession and Article 269 (2) (d) applies to the combined quotas; whereas consequently the quantitative restrictions in force in Portugal against Spanish products are abolished if imports into Portugal from the other Member States are in two consecutive years less than 90 % of the total annual quotas opened; whereas final import statistics show that for turkey and chicken chicks and for certain eggs in shell this percentage was not reached in either 1986 or 1987; whereas the quotas for these products should therefore be abolished;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Eggs and Poultrymeat,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EEC) No 4009/87 is replaced by the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 July 1988.
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COMMISSION REGULATION (EEC) No 221/91 of 30 January 1991 fixing for the 1991 marketing year the Community offer prices for cucumbers applicable with regard to Spain and Portugal
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Act of Accession of Spain and Portugal,
Having regard to Council Regulations (EEC) No 3709/89 (1) and No 3648/90 (2) laying down general rules for implementing the Act of Accession of Spain and Portugal as regards the compensation mechanism on imports of fruit and vegetables originating respectively in Spain and Portugal, and in particular Article 4 (1) of each thereof,
Whereas, Commission Regulation (EEC) No 3820/90 (3) lays down detailed rules for the application of the compensation mechanism to imports of fruit and vegetables from Spain,
Whereas, pursuant to Article 152 and Article 318 of the Act of Accession, a compensation mechanism is to be introduced on imports into the Community as constituted at 31 December 1985, hereinafter referred to as the 'Community of Ten', of fruit and vegetables from Spain and Portugal for which a reference price is fixed with regard to third countries; whereas, Community offer prices for cucumbers coming from Spain and Portugal should be fixed only during the period where reference prices are fixed with regard to third countries, which means from 11 February up to and including 10 November;
Whereas, in accordance with Articles 152 (2) (a) and 318 (1) (a) of the Act of Accession, a Community offer price is to be calculated annually on the basis of the arithmetic mean of the producer prices in each Member State of the Community of Ten, plus transport and packaging costs incurred by the products from the production regions to the representative consumption centres of the Community and bearing in mind developments in the cost of production in the fruit and vegetable sector; whereas the abovementioned producer prices correspond to the average prices recorded during the three years preceding the date of fixing of the Community offer price; whereas, however, the annual Community offer price cannot exceed the reference price applied for third countries;
Whereas, in order to take account of seasonal variations in prices, the marketing year should be divided into one or more periods and a Community offer price should be fixed for each of them;
Whereas, in accordance with Article 1 of Regulations (EEC) Nos 3709/89 and 3648/90, the producer prices to be used for the determination of the Community offer price are to be those of a domestic product defined by its commercial characteristics recorded on the representative market or markets located in the production areas where prices are lowest for products or varieties representing a considerable proportion of production marketed throughout the year or during a part of the latter and which meet Quality Class I requirements and conditions laid down as regards packaging; whereas the average price for each representative market must be established after disregarding prices which may be considered excessively high or excessively low compared with the normal fluctuations recorded on the market; whereas, moreover, if the average price for a Member State shows excessive variations with respect of normal price fluctuations, it shall not be taken into account;
Whereas cucumbers produced in the Community of Ten are grown mainly under glass; whereas the Community offer prices must therefore be fixed for a product of that type; whereas cucumbers imported from Spain and Portugal during the same period will have been grown in the open; whereas, although such cucumbers may be classed in class I, their quality and price are not comparable with those of products grown under glass; whereas the prices for cucumbers not grown under glass should therefore be adjusted by a conversion factor;
Whereas the application of the abovementioned criteria results in Community offer prices being fixed for cucumbers for the period 11 February to 10 November 1991 at the levels set out hereinafter;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fruit and Vegetables,
HAS ADOPTED THIS REGULATION: Article 1
1. For the 1991 marketing year, the Community offer prices for cucumbers (CN code 0707 00 11,19) applicable with regard to Spain and Portugal, expressed in ecus per 100 kilograms net of packed products of class I, of all sizes, shall be as follows:
- from 11 to 20 February: 133,44
- from 21 to 28 February: 109,79
- March: 93,13
- April: 70,13
- May: 63,77
- June: 56,18
- July: 48,28
- August: 48,65
- September: 57,62
- from 1 October to 10 November: 79,45.
2. For the purposes of calculating the Spanish and Portuguese offer prices, the prices for cucumbers, not produced under glass, imported from Spain and Portugal shall, after deduction of customs duties, be multiplied by the following conversion factors:
- from 11 February to 30 September: 1,30,
- from 1 October to 10 November: 1,00. Article 2
This Regulation shall enter into force on 11 February 1991. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 January 1991.
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COMMISSION REGULATION (EC) No 822/2007
of 12 July 2007
fixing the maximum export refund for white sugar in the framework of the standing invitation to tender provided for in Regulation (EC) No 38/2007
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (1), and in particular the second subparagraph and point (b) of the third subparagraph of Article 33(2) thereof,
Whereas:
(1)
Commission Regulation (EC) No 38/2007 of 17 January 2007 opening a standing invitation to tender for the resale for export of sugar held by the intervention agencies of Belgium, the Czech Republic, Spain, Ireland, Italy, Hungary, Poland, Slovakia and Sweden (2) requires the issuing of partial invitations to tender.
(2)
Pursuant to Article 4(1) of Regulation (EC) No 38/2007 and following an examination of the tenders submitted in response to the partial invitation to tender ending on 11 July 2007, it is appropriate to fix a maximum export refund for that partial invitation to tender.
(3)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
For the partial invitation to tender ending on 11 July 2007, the maximum export refund for the product referred to in Article 1(1) of Regulation (EC) No 38/2007 shall be 445,05 EUR/tonne.
Article 2
This Regulation shall enter into force on 13 July 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 July 2007.
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Commission Regulation (EC) No 2013/2003
of 14 November 2003
on the issuing of system A3 export licences in the fruit and vegetables sector (tomatoes, oranges, lemons and 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), and in particular the third subparagraph of Article 35(3) thereof,
Whereas:
(1) Commission Regulation (EC) No 1913/2003(3) opens an invitation to tender setting the indicative refund rates and indicative quantities for system A3 export licences, which may be issued, other than those tendered for as part of food aid.
(2) In the light of the tenders submitted, the maximum refund rates and the percentages of quantities to be awarded for tenders quoting those maximum rates should be set.
(3) In the case of table grapes, oranges and lemons, the maximum rate necessary to award licences for the indicative quantity up to the quantities tendered for is not more than one-and-a-half times the indicative refund rate.
(4) In the case of tomatoes and table grapes, the asked refund rates are considerably higher than the indicative refund rate and, therefore, all tenders shall be rejected by fixing a zero maximum rate,
HAS ADOPTED THIS REGULATION:
Article 1
In the case of tomatoes, oranges, lemons and table grapes, the maximum refund rates and the percentages for reducing the quantities awarded under the invitation to tender opened by Regulation (EC) No 1913/2003 shall be fixed in the Annex.
Article 2
This Regulation shall enter into force on 15 November 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 November 2003.
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COMMISSION REGULATION (EC) No 1161/98 of 3 June 1998 on the sale by tender of beef held by certain intervention agencies and intended for processing within the Community
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organisation of the market in beef and veal (1), as last amended by Regulation (EC) No 2634/97 (2), and in particular Article 7(3) thereof,
Whereas the application of intervention measures in respect of beef has created stocks in several Member States; whereas, in order to prevent an excessive prolongation of storage, part of these stocks should be sold by tender for processing in the Community;
Whereas the sale should be made subject to the rules laid down by Commission Regulations (EEC) No 2173/79 (3), as last amended by Regulation (EC) No 2417/95 (4), (EEC) No 3002/92 (5), as last amended by Regulation (EC) No 770/96 (6) and (EEC) No 2182/77 (7), as last amended by Regulation (EC) No 2417/95, subject to certain special exceptions on account of the particular use to which the products in question are to be put;
Whereas, with a view to ensuring a regular and uniform tendering procedure, measures should be taken in addition to those laid down in Article 8(1) of Regulation (EEC) No 2173/79;
Whereas provision should be made for derogations from Article 8(2)(b) of Regulation (EEC) No 2173/79, in view of the administrative difficulties which application of this point creates in the Member States concerned;
Whereas in order to ensure optimum monitoring of the destination of beef from intervention stocks, control measures should be taken, in addition to the measures provided for in Regulation (EEC) No 3002/92, which are based on physical inspection of quantities and qualities;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. The sale shall take place of intervention products of:
- approximately 32 tonnes of bone-in forequarters and 53 tonnes of bone-in hindquarters held by the German intervention agency,
- approximately 54 tonnes of bone-in forequarters and 88 tonnes of bone-in hindquarters held by the Danish intervention agency,
- approximately 2 tonnes of bone-in forequarters and 2 tonnes of bone-in hindquarters held by the Austrian intervention agency,
- approximately 497 tonnes of bone-in forequarters and 715 tonnes of bone-in hindquarters held by the Spanish intervention agency,
- approximately 16,5 tonnes of boneless beef held by the United Kingdom intervention agency.
The products put up for sale have been bought into intervention in accordance with Article 1(c) of Commission Regulations (EC) No 1788/96 (8), (EC) No 1960/96 (9), (EC) No 2045/96 (10), (EC) No 2195/96 (11), (EC) No 2301/96 (12) and (EC) No 2378/96 (13).
Detailed information concerning quantities is given in Annex I.
2. Subject to the provisions of this Regulation the products referred to in paragraph 1 shall be sold in accordance with Regulations (EEC) No 2173/79, in particular Titles II and III thereof, (EEC) No 2182/77 and (EEC) No 3002/92.
Article 2
1. Notwithstanding Articles 6 and 7 of Regulation (EEC) No 2173/79, the provisions of and Annexes to this Regulation shall serve as a general notice of invitation to tender.
The intervention agencies concerned shall draw up a notice of invitation to tender which shall include the following:
(a) the quantities of beef offered for sale; and
(b) the deadline and place for submitting tenders.
2. Interested parties may obtain the details of the quantities available and the places where the products are stored from the addresses listed in Annex II to this Regulation. The intervention agencies shall, in addition, display the notice referred to in paragraph 1 at their head offices and may publish it in other ways.
3. For each product mentioned in Annex I the intervention agencies concerned shall sell first the meat which has been stored the longest.
4. Only tenders which reach the intervention agencies concerned by 12 noon on 8 June 1998 shall be considered.
5. Notwithstanding Article 8(1) of Regulation (EEC) No 2173/79, a tender must be submitted to the intervention agency concerned in a closed envelope, bearing the reference to the Regulation concerned. The closed envelope must not be opened by the intervention agency before the expiry of the tender deadline referred to in paragraph 4.
6. Notwithstanding Article 8(2)(b) of Regulation (EEC) No 2173/79, tenders shall not indicate in which cold store or stores the products are held.
7. Notwithstanding Article 17 of Regulation (EEC) No 2173/79, in the case of boneless beef, the quantity available for each cut shall constitute the minimum quantity to be tendered for.
Article 3
1. Member States shall provide the Commission with information concerning the tenders received not later than the working day following the deadline set for the submission of tenders.
2. After the tenders received have been examined a minimum selling price shall be set for each product or the sale will not proceed.
Article 4
1. A tender shall be valid only if presented by or on behalf of a natural or legal person who, for the 12 months prior to the entry into force of this Regulation, has been engaged in the processing of products containing beef and who is entered in a national VAT register. In addition, tenders must be presented by or on behalf of a processing establishment approved in accordance with Article 8 of Council Directive 77/99/EEC (14).
2. Notwithstanding Article 3(1) and (2) of Regulation (EEC) No 2182/77, a tender must be accompanied by:
- a written undertaking by the tenderer to process the meat into the products specified in Article 5 within the period referred to in Article 5(1) of Regulation (EEC) No 2182/77,
- precise details of the establishment or establishments where the meat which has been purchased is to be processed.
3. The tenderers referred to in paragraph 1 may instruct an agent in writing to take delivery, on their behalf, of the products which they purchase. In this case the agent shall submit the bids of the tenderers whom he represents together with the written instruction referred to above.
4. Notwithstanding Article 18(1) of Regulation (EEC) No 2173/79 the time limit for taking over meat sold pursuant to this Regulation shall be two months from the day of the notification referred to in Article 11 of the same Regulation.
5. The purchasers and agents referred to in the preceding paragraphs shall maintain and keep up to date an accounting system which permits the destination and use of the products to be ascertained with a view in particular to ensuring that the quantities of products purchased and manufactured tally.
Article 5
1. Meat purchased in accordance with this Regulation shall be processed into products which comply with the definitions for A products and B products set out in paragraphs 2 and 3.
2. An 'A` product means a processed product falling within CN code 1602 10, 1602 50 31, 1602 50 39 or 1602 50 80, not containing meat other than that of animals of the bovine species, with a collagen/protein ratio of no more than 0,45 % (15) and containing by weight at least 20 % (16) of lean meat excluding offal (17) and fat with meat and jelly accounting for at least 85 % of the total net weight.
The product must be subjected to a heat treatment sufficient to ensure the coagulation of meat proteins in the whole of the product which may not show any traces of a pinkish liquid on the cut surface when the product is cut along a line passing through its thickest part.
3. A 'B` product means a processed product containing beef, other than:
- one specified in Article 1(1)(a) of Regulation (EEC) No 805/68, or
- one referred to in paragraph 2.
However, a processed product falling within CN code 0210 20 90 which has been dried or smoked so that the colour and consistency of the fresh meat has totally disappeared and with a water/protein ratio not exceeding 3,2 shall be considered to be a B product.
Article 6
1. Member States shall set up a system of physical and documentary supervision to ensure that all meat is processed in accordance with Article 5.
The system must include physical checks of quantity and quality at the start of the processing, during the processing and after the processing operation is completed. To this end, processors shall at any time be able to demonstrate the identity and use of the meat through appropriate production records.
Technical verification of the production method by the competent authority may, to the extent necessary, make allowance for drip losses and trimmings.
In order to verify the quality of the finished product and establish its conformity with the processor's recipe Member States shall undertake representative sampling and analysis of the product. The costs of such operations shall be borne by the processor concerned.
2. Member States may, at the request of the processor, authorise the boning of forequarters and hindquarters in an establishment other than that provided for in respect of processing provided the relevant operations take place in the same Member State under appropriate supervision.
3. Article 1 of Regulation (EEC) No 2182/77 shall not apply.
Article 7
1. The security provided for in Article 15(1) of Regulation (EEC) No 2173/79 shall be ECU 12 per 100 kilograms.
2. The security provided for in Article 4(1) of Regulation (EEC) No 2182/77 shall be:
- the difference in ecus between the tender price per tonne and ECU 1 800 for bone-in forequarters,
- the difference in ecus between the tender price per tonne and ECU 2 700 for bone-in hindquarters,
- the difference in ecus between the tender price per tonne and ECU 3 500 for boneless beef.
3. Notwithstanding Article 5(3) of Regulation (EEC) No 2182/77, the processing of all beef purchased into finished products as referred to in Article 5 shall constitute a principal requirement.
Article 8
Notwithstanding Article 9 of Regulation (EEC) No 2182/77, in addition to the entries provided for in Regulation (EEC) No 3002/92:
- Section 104 of T 5 control copies must be completed with one or more of the following:
- Para transformación [Reglamentos (CEE) n° 2182/77 y (CE) n° 1161/98]
- Til forarbejdning (forordning (EØF) nr. 2182/77 og (EF) nr. 1161/98)
- Zur Verarbeitung bestimmt (Verordnungen (EWG) Nr. 2182/77 und (EG) Nr. 1161/98)
- Ãéá ìåôáðïßçóç [êáíïíéóìïß (ÅÏÊ) áñéè. 2182/77 êáé (ÅÊ) áñéè. 1161/98]
- For processing (Regulations (EEC) No 2182/77 and (EC) No 1161/98)
- Destinés à la transformation [règlements (CEE) n° 2182/77 et (CE) n° 1161/98]
- Destinate alla trasformazione [Regolamenti (CEE) n. 2182/77 e (CE) n. 1161/98]
- Bestemd om te worden verwerkt (Verordeningen (EEG) nr. 2182/77 en (EG) nr. 1161/98)
- Para transformação [Regulamentos (CEE) nº 2182/77 e (CE) nº 1161/98]
- Jalostettavaksi (Asetukset (ETY) N:o 2182/77 ja (EY) N:o 1161/98)
- För bearbetning (Förordningarna (EEG) nr 2182/77 och (EG) nr 1161/98),
- Section 106 of T 5 control copies must be completed with the date of conclusion of the contract of sale.
Article 9
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 June 1998.
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COMMISSION REGULATION (EC) No 605/97 of 4 April 1997 concerning tenders submitted in response to the invitation to tender for the export to certain third countries of wholly milled long grain rice issued in Regulation (EC) No 530/97
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 organization of the market in rice (1), and in particular Article 13 (3) thereof,
Whereas an invitation to tender for the export refund on rice was issued under Commission Regulation (EC) No 530/97 (2);
Whereas Article 5 of Commission Regulation (EEC) No 584/75 (3), as last amended by Regulation (EC) No 299/95 (4), allows the Commission to decide, in accordance with the procedure laid down in Article 22 of Regulation (EC) No 3072/95 and on the basis of the tenders submitted, to make no award;
Whereas on the basis of the criteria laid down in Article 13 of Regulation (EC) No 3072/95 a maximum refund should not be fixed;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
No action shall be taken on the tenders submitted by 3 April 1997 in response to the invitation to tender for the export refund on wholly milled long grain rice falling within CN code 1006 30 67 to certain third countries issued in Regulation (EEC) No 530/97.
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, 4 April 1997.
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COMMISSION REGULATION (EC) No 1984/98 of 17 September 1998 on the sale by tender of beef held by certain intervention agencies and intended for the production of minced meat
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organisation of the market in beef and veal (1), as last amended by Regulation (EC) No 1633/98 (2), and in particular Article 7(3) thereof,
Whereas the application of intervention measures in respect of beef has created stocks in several Member States; whereas, in order to prevent an excessive prolongation of storage, part of these stocks should be sold by tender for the production of minced meat in the Community;
Whereas to ensure efficient management of the markets, sales of intervention stocks should be extended to producers of minced meat approved in accordance with Article 8 of Council Directive 94/65/EC of 14 December 1994 laying down the requirements for the production and placing on the market of minced meat and meat preparations (3);
Whereas the sale should be made subject to the rules laid down by Commission Regulation (EEC) No 2173/79 (4), as last amended by Regulation (EC) No 2417/95 (5), in particular titles II and III thereof, subject to certain special exceptions on account of the particular use to which the products in question are to be put;
Whereas, with a view to ensuring a regular and uniform tendering procedure, measures should be taken in addition to those laid down in Article 8(1) of Regulation (EEC) No 2173/79;
Whereas provision should be made for derogations from Article 8(2)(b) of Regulation (EEC) No 2173/79, in view of the administrative difficulties which application of this point creates in the Member States concerned;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. The sale shall take place, of products bought into intervention pursuant to Article 6 of Regulation (EEC) No 805/68 in June and July 1997, of:
- approximately 800 tonnes of boneless beef held by the Irish intervention agency,
- approximately 1 000 tonnes of boneless beef held by the United Kingdom intervention agency.
Detailed information concerning quantities is given in Annex I.
2. Subject to the provisions of this Regulation the products referred to in paragraph 1 shall be sold in accordance with Regulation (EEC) No 2173/79, in particular titles II and III thereof.
Article 2
1. Notwithstanding Articles 6 and 7 of Regulation (EEC) No 2173/79, the provisions of and Annexes to this Regulation shall serve as a general notice of invitation to tender.
The intervention agencies concerned shall draw up a notice of invitation to tender which shall include the following:
(a) the quantities of beef offered for sale;
and
(b) the deadline and place for submitting tenders.
2. Interested parties may obtain the details of the quantities available and the places where the products are stored from the addresses listed in Annex II to this Regulation. The intervention agencies shall, in addition, display the notice referred to in paragraph 1 at their head offices and may publish it in other ways.
3. For each product mentioned in Annex I the intervention agencies concerned shall sell first the meat which has been stored the longest.
4. Only tenders which reach the intervention agencies concerned by 12 noon on 21 September 1998 shall be considered.
5. Notwithstanding Article 8(1) of Regulation (EEC) No 2173/79, a tender shall be submitted to the intervention agency concerned in a closed envelope, bearing the reference to the Regulation concerned. The closed envelope shall not be opened by the intervention agency before the expiry of the tender deadline referred to in paragraph 4.
6. Notwithstanding Article 8(2)(b) of Regulation (EEC) No 2173/79, tenders shall not indicate in which cold store or stores the products are held.
Article 3
1. Member States shall provide the Commission with information concerning the tenders received not later than the working day following the deadline set for the submission of tenders.
2. After the tenders received have been examined a minimum selling price shall be set for each product or the sale will not proceed.
Article 4
1. A tender shall be valid only if presented by or on behalf of an establishment approved in accordance with Article 8(1) of Directive 94/65/EC as a producer of minced meat or minced meat preparations. Member States shall consult with each other where necessary for the application of this paragraph.
2. Tenders shall be accompanied by:
- a written undertaking by the tenderer to use all the meat concerned for the production of minced meat as defined by Article 2(2)(a) and (b) of Directive 94/65/EC within two months of the date of conclusion of the contract of sale with the intervention agency,
- details of the exact location of the establishment or establishments of the tenderer in which the minced meat is to be produced.
3. The tenderers referred to in paragraph 1 may instruct an agent in writing to take delivery, on their behalf, of the products which they purchase. In this case the agent shall submit the bids of the tenderers whom he represents with the written instruction referred to above.
4. The purchasers and agents referred to in the preceding paragraphs shall maintain and keep up to date an accounting system which permits the destination and use of the products to be ascertained with a view in particular to ensuring that the quantities of products purchased and the quantities of minced meat produced correspond. For the purposes of administrative supervision, where appropriate the intervention agency holding the products concerned shall send the competent authority of the Member State in which the minced meat is to be produced a certified copy of the sales contract.
Article 5
1. The mincing of meat purchased under this Regulation shall be carried out within two months of the date of conclusion of the contract of sale.
2. Documentation to prove compliance with the requirement referred to in paragraph 1 shall be provided to the competent authority of the Member State in which the minced meat is produced within four months of the date of conclusion of the contract of sale.
Article 6
Member States shall set up a system of physical and documentary supervision to ensure that all meat is minced in accordance with Article 5(1).
To this end, processors shall at any time be able to demonstrate the identity and use of the meat through appropriate production records.
Article 7
1. The security provided for in Article 15(1) of Regulation (EEC) No 2173/79 shall be ECU 12 per 100 kilograms.
2. A security intended to cover the mincing of the products shall be lodged with the competent authority of the Member State in which the mincing is to take place, prior to taking over the meat.
The amount shall be the difference in ecus between the tender price per tonne and ECU 2 700.
The mincing of all meat purchased shall constitute a principal requirement.
Article 8
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 September 1998.
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COMMISSION DECISION of 21 October 1994 adapting, pursuant to Article 42 (3), Annexes II, III and IV to Council Regulation (EEC) No 259/93 on the supervision and control of shipments of waste within, into and out of the European Community (94/721/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community (1), and in particular Article 42 (3) thereof,
Having regard to Council Directive 75/442/EEC of 15 July 1975 on waste (2), as last amended by Directive 91/692/EEC (3), and in particular Article 18 thereof,
Whereas in accordance with Article 42 (3) of Regulation (EEC) No 259/93, Annexes II, III and IV have to be adapted to reflect only those changes already agreed under the review mechanism of the OECD;
Whereas the Council of the OECD (4) has decided in the framework of the review mechanism to modify the green, amber and red lists of wastes;
Whereas it is necessary to amend Annexes II, III and IV to the Regulation to reflect these modifications;
Whereas the Commission, in order to adapt Annexes II, III and IV to the abovementioned Regulation, is assisted in this task by the Committee established pursuant to Article 18 of Directive 75/442/EEC;
Whereas the measures provided for in this Decision are in accordance with the opinion of the aforementioned Committee,
HAS ADOPTED THIS DECISION:
Article 1
Annexes II, III and IV to Regulation (EEC) No 259/93 are hereby replaced by the Annex to the present Decision.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 21 October 1994.
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Council Directive
of 7 February 1983
amending Directive 72/462/EEC on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries and Directive 77/96/EEC on the examination for trichinae (trichinella spiralis) upon importation from third countries of fresh meat derived from domestic swine
(83/91/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 43 and 100 thereof,
Having regard to the proposal from the Commission [1],
Having regard to the opinion of the European Parliament [2],
Having regard to the opinion of the Economic and Social Committee [3],
Whereas Directive 72/462/EEC [4], as last amended by Directive 81/476/EEC [5], lays down health and veterinary inspection requirements for the importation of bovine animals and swine and fresh meat from third countries:
Whereas, since the adoption of the aforementioned Directive, advances in scientific knowledge and technology have occurred; whereas account should be taken of the experience gained during the course of the checks which Community veterinarians have carried out in third countries; whereas it is desirable that Community rules be adapted in the light of these developments;
Whereas in certain respects the methods designed to ensure the protection of the health quality of fresh meat may be regarded as in line with Community standards because of additional or alternative health guarantees which should be examined in each individual establishment;
Whereas in relation to prohibiting imports of bovine animals from third countries infected with blue-tongue it is now accepted that a 12-month period of freedom is more appropriate and will provide a better guarantee for Community herds;
Whereas guarantees which may be sought for bovine animals in relation to tuberculosis and brucellosis and for swine in relation to brucellosis can be adapted to Community standards by means of additional or alternative guarantees;
Whereas in order to prevent transmission of certain infectious or contagious diseases which may occur solely by the presence of animals, the animal health inspections on animals intended for import to the Community as well as on those in transit should be carried out immediately upon their arrival in the territory of the Community;
Whereas following that animal health inspection, the measures which should be taken by the Member State should be clearly defined;
Whereas, in order to reduce the number of documents, the animal health certificate and the public health certificate should appear on the same sheet of paper whenever possible;
Whereas the definitions of tuberculosis-free and brucellosis-free herds should be brought up to date;
Whereas fresh meat of cloven-hoofed wild animals and wild solipeds should be included within the scope of Directive 72/462/EEC in order that the list of third countries from which such meat may be imported into the Community can be drawn up;
Whereas in general the same basic guarantees with regard to public health and animal health should be required in intra-Community trade as in trade with third countries; whereas the technical annexes to Council Directive 64/432/EEC of 26 June 1964 on animal health problems affecting intra-Community trade in bovine animals and swine [6] and Council Directive 64/433/EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat [7], both Directives as last amended by Directive 81/476/EEC, should also be applicable to importation from third countries;
Whereas the procedure should be adopted whereby changes can be made, in the light of technical advances and of experience, to the technical requirements regarding methods of examination, screening laboratories and the procedure for marking examined meat which are contained in the Annex to Council Directive 77/96/EEC of 21 December 1976 on the examination for trichinae (Trichinella spiralis) upon importation from third countries of fresh meat derived from domestic swine [8], as last amended by Directive 81/476/EEC;
Whereas, action should be taken to correct certain terminological deficiencies, especially as regards the correspondence between the various language versions, which could lead to difficulties in the application of the provisions concerned,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Directive 72/462/EEC is hereby amended as follows:
1. Articles 1 to 28 shall be replaced by the following:
"CHAPTER I
General provisions
Article 1
1. This Directive shall apply to imports from third countries of:
- domestic bovine animals and swine for breeding, production or slaughter,
- fresh meat from domestic animals of the following species: bovine animals (including buffalo), swine, sheep and goats and from domestic solipeds,
- for the purposes of Article 3, fresh meat of cloven-hoofed wild animals and wild solipeds, in so far as this concerns permitted importation from certain third countries of origin.
2. This Directive shall not apply to:
(a) animals intended exclusively for grazing or draught purposes, on a temporary basis, in the vicinity of the Community frontiers;
(b) meat forming part of travellers' personal luggage and intended for their personal consumption, in so far as the amount or quantity transported does noet exceed one kilogram per person and provided that the meat comes from a third country or part thereof appearing on the list drawn up in accordance with Article 3 and from which importation is not prohibited under Article 28;
(c) meat sent as small packages to private persons, provided that such meat is not imported by way of trade, that the quantity does not exceed one kilogram and that the meat comes from a third country or part thereof appearing on the list drawn up in accordance with Article 3 and from which importation is not prohibited under Article 28;
(d) meat for consumption by the crew and passengers on board means of transport operating internationally.
Where meat of this kind or kitchen waste is unloaded, it must be destroyed. It is not, however, necessary to destroy meat when it is transferred, directly of after being placed provisionally under customs supervision, from one means of transport to another.
Article 2
For the purposes of this Directive, the definitions given in Articles 2 of Directives 64/432/EEC, 64/433/EEC and in Council Directive 72/461/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries [1] OJ No L 302, 31. 12. 1972, p. 24., all these Directives, as last amended by Directive 81/476/EEC, shall apply as necessary.
In addition,
(a) "official veterinarian" means the veterinarian designated by the competent central authority of a Member State or a third country;
(b) "country of destination" means the Member State to which animals or fresh meat are sent from a third country;
(c) "third country" means a country in which Directives 64/432/EEC and 64/433/EEC do not apply;
(d) "importation" means the introduction into the territory of the Community of animals or fresh meat from third countries;
(e) "holding" means an officially supervised agricultural, industrial or commercial undertaking situated in the territory of a third country, in which animals for breeding, production or slaughter are regularly kept or bred;
(f) epizootic-free area” means an area in which, according to official findings, the animals have not suffered from any of the contagious or infectious diseases on the list drawn up in accordance with the procedure laid down in Article 29, for a period and within a radius defined in accordance with the same procedure.
Article 3
1. The Council, acting on a proposal from the Commission, shall draw up a list of the third countries or parts thereof from which the Member States shall authorize importation of bovine animals, swine and fresh meat, or one or more of these categories of animals and fresh meat, and of fresh meat of cloven-hoofed wild animals and wild solipeds, taking into account the health situation in these countries or parts thereof. This list may be supplemented or amended according to the procedure laid down in Article 30.
2. In deciding, in the case of both bovine animals and swine and fresh meat, whether a third country or part thereof may appear on the list referred to in paragraph 1, particular account shall be taken of:
(a) the state of health of the livestock, other domestic animals and wildlife in the third country, particular attention being paid to exotic animal diseases and of the environmental health situation in that country, which might endanger public and animal health in the Member States;
(b) the regularity and rapidity of the information supplied by the third country relating to the existence of infectious or contagious animal diseases in its territory, in particular those diseases mentioned in Lists A and B of the International Office of Epizootic Diseases;
(c) the country's rules on animal disease prevention and control;
(d) the structure of the veterinary services in the country and their powers;
(e) the organization and implementation of measures to prevent and control infectious or contagious animal diseases.
3. The list referred to in paragraph 1 and all amendments thereto shall be published in the Official Journal of the European Communities.
Article 4
1. In accordance with the procedure laid down in Article 29, one or more lists shall be drawn up of establishments from which Member States may authorize importation of fresh meat. The list or lists may be amended or supplemented in accordance with the procedure laid down in Article 30.
2. In deciding whether a slaughterhouse, a cutting plant or a store situated outside a slaughterhouse or plant may appear on one of the lists referred to in paragraph 1, particular account shall be taken of:
(a) the guarantees which the third country can offer with regard to compliance with this Directive;
(b) the third country's regulations with regard to the administration to animals for slaughter of any substance which might affect the wholesomeness of the meat;
(c) compliance in each particular case with this Directive and with Annex I to Directive 64/433/EEC.
However, derogations shall be permitted, in accordance with the procedure laid down in Article 29, from the second, third and fourth indents of paragraph 13 (c), and paragraphs 24 and 41 (C) of the said Annex, where the third country concerned provides similar guarantees; in that case, health conditions no less strict than those imposed in that Annex shall be imposed on a case-by-case basis in accordance with that procedure;
(d) the organization of the meat inspection service or services of the third country, the powers of this service or these services and the supervision to which it or they is or are subject.
3. A slaughterhouse, a cutting plant or a store situated outside a slaughterhouse or cutting plant may not appear on the list or lists provided for in paragraph 1 unless it is situated in one of the third countries or parts thereof on the list referred to in Article 3 (1) and if it has, in addition, been officially approved for exports to the Community by the competent authorities of the third country. Such approval shall be subject to observance of the following requirements:
(a) compliance with Annex I to Directive 64/433/EEC;
(b) constant supervision by an official veterinarian of the third country.
4. The list or lists referred to in paragraph 1 and all amendments thereto shall be published in the Official Journal of the European Communities.
Article 5
Inspection shall be carried out on the spot by veterinary experts of the Member States and the Commission to verify whether the provisions of this Directive, and in particular Articles 3 (2) and 4 (2) and (3), are being applied in practice.
Should an inspection carried out within the terms of this Article bring to light serious facts as against an approved establishment, the Commission shall immediately inform the Member States and forthwith adopt a decision provisionally suspending the approval. A final decision shall be taken according to the procedure provided for in Article 30.
The experts from the Member States who are to be entrusted with these inspections shall be appointed by the Commission, acting on a proposal from the Member States.
These inspections shall be made on behalf of the Community, which shall bear the cost of any expenditure incurred in this connection.
The frequency of and the procedure for these inspections shall be determined in accordance with the procedure laid down in Article 29.
CHAPTER II
Importation of bovine animals and swine
Article 6
Notwithstanding Article 3 (1), the Member States shall not authorize importation of animals covered by this Directive unless they come from third countries:
(a) which have been free from those diseases to which the animals are susceptible:
- for the previous 12 months, in respect of cattle plague, exotic foot-and-mouth disease, contagious pleuro-pneumonia, bluetongue, African swine fever and contagious porcine paralysis (Teschen disease),
- for the previous six months, in respect of contagious vesicular stomatitis;
(b) in which during the preceding 12 months vaccination against the diseases referred to in the first indent of (a) to which these animals are susceptible has not been carried out.
Article 7
It may be decided, in accordance with the procedure set out in Article 29, that Article 6 (a) shall apply to only part of the territory of a third country.
In accordance with the same procedure and by way of derogation from Article 6 (b), the importation of animals covered by this Directive may, on certain conditions, be permitted from third countries or parts thereof where vaccinations against one or more of the diseases mentioned in the first indent of Article 6 (a) are carried out.
Article 8
1. Without prejudice to Articles 6 and 7, the Member States shall not authorize importation of animals covered by this Directive from a third country unless such animals satisfy the animal health requirements adopted in accordance with the procedure laid down in Article 29 for importations from that country, according to the species and destination of the animals.
2. It may be decided, in accordance with the procedure laid down in Article 29, that authorizations are to be confined to particular species, to animals for slaughter, breeding or production, or to animals intended for particular purposes, or that all necessary animal health measures are to be applied after importation.
In the case of animals for breeding or production, requirements imposed pursuant to this paragraph may vary from one Member State to another in order to take account of the special provisions which Member States enjoy in the framework of intra-Community trade.
3. The reference basis for fixing animal health conditions in accordance with paragraph 1, for bovine tuberculosis and bovine and swine brucellosis shall be the standards laid down in Annex A to Directive 64/432/EEC. It may be decided, in accordance with the procedure laid down in Article 29, on a case-by-case basis to waive these conditions where the third country concerned provides similar animal health guarantees; in that case, animal health conditions at least equivalent to those in Annex A to that Directive shall be laid down in accordance with the same procedure in order to permit the entry of such animals into Community herds.
Article 9
Where a Member State considers that the foot-and-mouth disease vaccines used in a third country against the A, O or C viruses have certain deficiencies, it shall prohibit the introduction into its territory of bovine animals and swine from the third country concerned. It shall inform the other Member States and the Commission as soon as possible of its decision and shall give grounds for this decision. The Standing Veterinary Committee shall meet as soon as possible after this notification. A decision shall be taken in accordance with the procedure laid down in Article 30.
Article 10
The Member States shall not authorize importation of bovine animals or swine, unless on the day of loading for dispatch to the country of destination, these animals have remained continuously in the territory or part of the territory of a third country on the list established in accordance with Article 3 (1) for at least the previous:
(a) six months in the case of animals for breeding or production;
(b) three months in the case of animals for slaughter.
Animals which are less than six or three months old respectively shall be required to have remained in that territory from birth.
Article 11
1. The Member States shall not authorize importation of bovine animals or swine without the production of a certificate drawn up by an official veterinarian of the exporting third country.
This certificate must:
(a) be issued on the day of loading of the animals for dispatch to the country of destination;
(b) be drawn up in at least one of the official languages of the Member State of destination and one of those of the Member State in which the import inspection provided for in Article 12 is carried out;
(c) accompany the animals in the original;
(d) attest that the bovine animals and swine meet the requirements of this Directive and those laid down pursuant to this Directive with regard to importation from third countries;
(e) consist of a single sheet of paper;
(f) be made out for a single consignee.
2. This certificate must comply with a model established in accordance with the procedure laid down in Article 29.
Article 12
1. The Member States shall ensure that domestic bovine animals and domestic swine are subjected immediately upon arrival in the territory of the Community to an animal health inspection carried out by an official veterinarian, whatever the customs procedure under which they were declared.
2. The Member States shall ensure that bovine animals and swine are prohibited from movement within the Community if, during the inspection prescribed in paragraph 1, it is found that:
- these animals do not come from the territory of a third country, or part thereof, set out in the list drawn up in accordance with Article 3 (1),
- these animals are, or are suspected of being, infected with or are contaminated by an infectious or contagious disease,
- the conditions laid down in this Directive and in Annexes A to D of Directive 64/432/EEC have not been complied with by the exporting third country,
- the certificate accompanying the animals does not comply with the conditions set out in Article 11.
3. The Member State which has carried out the inspection mentioned in paragraph 1 shall take such measures as it considers to be necessary, including:
(a) - the placing in quarantine of animals which are suspected of being infected with or contaminated by an infectious or contagious disease;
- in the case referred to in the fourth indent of paragraph 2, at the request of the consignor, the consignee or their representative, keeping the animals under supervision pending clearance of the certificate;
(b) the return of animals which cannot be admitted for movement in accordance with paragraph 2, provided that this is not contrary to considerations of animal health.
Where it is not possible to return the animals, the competent authority shall order their slaughter and designate the place of slaughter.
(c) slaughter and destruction of all animals in the consignment in question if the above-mentioned inspection shows evidence or suspicion of one of the epizootic diseases on the list established under the procedure laid down in Article 29.
4. The certificate accompanying bovine animals and swine on importation must, following the animal health inspection (import inspection), include a statement clearly indicating whether the animals have been admitted or refused entry.
5. While the animals are being taken across Community territory en route to the Member State of destination, the Member States may implement the measures referred to in the first indent of paragraph 3 (a) and in paragraph 3 (c) if the animals are, or are suspected of being, infected with or are contaminated by an infectious or contagious disease.
6. Animals which have obtained an import authorization and the destination of which is not the Member State which carried out the import inspection laid down in paragraph 1, must be forwarded to the country of destination under customs supervision without being unloaded.
7. Animals which have satisfied the import inspection prescribed in paragraph 1 shall undergo any further inspections necessary in the country of destination in order to verify whether the requirements of this Directive, including the special conditions laid down under the procedure provided for in Article 29 pursuant to Article 8, have been complied with.
These inspections may be carried out either at the frontier, or at any other point designated by the competent authority of the country of destination or at both.
8. All expenditure incurred pursuant to this Article, including by the slaughter or destruction of animals, shall be chargeable to the consignor, consignee or their representative without compensation by the State.
Article 13
Immediately upon arrival in the country of destination, the animals for slaughter shall be taken directly to a slaughterhouse and, in accordance with animal health requirements, be slaughtered not later than three working days after their entry into that slaughterhouse.
Without prejudice to any special conditions which may be set out in accordance with the procedure laid down in Article 29, the competent authority of the country of destination may, on animal health grounds, designate the slaughterhouse to which these animals must be taken.
CHAPTER III
Importation of fresh meat
Article 14
1. Fresh meat must come from animals which have remained for at least three months before being slaughtered, or since birth if the animals in question are less than three months old, in the territory, or in part thereof, of a third country on the list drawn up in accordance with Article 3 (1).
2. Notwithstanding Article 3 (1), the Member States shall not authorize the importation of fresh meat unless it comes from third countries:
(a) which, for the previous 12 months, have been free from those of the following diseases to which the animals from which the meat has come are susceptible: cattle plague, exotic foot-and-mouth disease, African swine fever, contagious porcine paralysis (Teschen disease);
(b) in which no vaccinations have been carried out for the previous 12 months against the diseases mentioned under (a) to which the animals from which the meat has come are susceptible.
Article 15
It may be decided, in accordance with the procedure set out in Article 29, that Article 14 (2) (a) shall apply to part only of the territory of a third country.
In accordance with the same procedure and by way of derogation from Article 14 (2) (b), importation of fresh meat may be permitted, on certain conditions, from a third country or part of the territory of that third country where vaccinations have been carried out against one or more of the diseases referred to in Article 14 (2) (a).
Article 16
Without prejudice to Articles 14 and 15, the Member States shall not authorize importation of fresh meat from a third country unless the meat complies with the public health and animal health requirements adopted in accordance with the procedure set out in Article 29 for importation of fresh meat from that country according to the species of animal concerned.
Article 17
1. The Member States shall not authorize importation of fresh meat in the form of carcases, including half-carcases in the case of swine, and halves or quarters in the case of bovine animals and solipeds, unless it it possible to reconstruct the entire carcase of each animal.
2. Such importation shall be subject to the following conditions: the fresh meat must
(a) have been obtained in a slaughterhouse included on the list established in accordance with Article 4 (1);
(b) come from an animal which, in accordance with Chapter V of Annex I to Directive 64/433/EEC has undergone an ante-mortem inspection ensured by an official veterinarian and has been deemed suitable for slaughter in accordance with this Directive, with a view to being exported to the Community;
(c) have been treated in conditions of hygiene in accordance with Chapter VI of Annex I to Directive 64/433/EEC;
(d) have undergone a post-mortem inspection carried out under the responsibility and direct control of an official veterinarian in accordance with Chapter VII of Annex I to Directive 64/433/EEC, and have shown no change except for traumatic lesions incurred shortly before slaughter, or localized malformations or changes, provided that it is established, if necessary by appropriate laboratory tests, that these do not render the carcase and offal unfit for human consumption or dangerous to human health;
(e) bear a health mark to be decided in accordance with the procedure laid down in Article 29;
(f) after post-mortem inspection carried out as laid down in (d), have been stored in establishments and satisfactory hygienic conditions and in accordance with Chapter XIII of Annex I to Directive 64/433/EEC;
(g) have been transported in accordance with Chapter XIV of Annex I to Directive 64/433/EEC and undergone handling in satisfactory conditions of hygiene.
3. When carrying out the post-mortem inspection referred to in 2 (d), and when verifying compliance with the hygiene conditions referred to in 2 (c) and with the requirements of Chapter XIII of Annex I to Directive 64/433/EEC, the official veterinarian may be helped by assistants working under his responsibility.
These assistants must:
(a) be appointed by the competent central authority of the exporting country, in accordance with the provisions in force;
(b) have appropriate training;
(c) enjoy a status guaranteeing their impartiality towards those running the establishments;
(d) have no power of decision concerning the final result of the public health inspection.
Article 18
1. By way of derogation from Article 17 (1), the Member States may permit importation of:
(a) half-carcases, half carcases cut into no more than three wholesale cuts, quarters or offal complying with the conditions set out in Article 17 (2) and (3) from slaughterhouses designated for this purpose in accordance with the procedure laid down in Article 29;
(b) cuts smaller than quarters or boned meat from cutting plants inspected pursuant to Article 4 and approved for this purpose in accordance with the procedure set out in Article 29. Such meat, in addition to complying with the conditions laid down in Article 17 (2) and (3), shall comply with the following requirements:
(i) it must have been cut and obtained in compliance with the provisions of Chapter VIII of Annex I to Directive 64/433/EEC,
(ii) it must have been inspected by an official veterinarian in accordance with Chapter IX of Annex I to Directive 64/433/EEC,
(iii) its packaging must comply with the requirements set out in Chapter XI of Annex I to Directive 64/433/EEC,
(iv) it must undergo all inspections, carried out by Community veterinarians, required to ensure that the abovementioned provisions have been complied with,
(v) fresh meat of solipeds must undergo inspection by the country of destination with a view to possible restrictions on the use of such meat.
2. Article 20 (k) notwithstanding, Member States may authorize importation into their territories of masseter muscles and brains provided that they comply with the requirements of Article 17 (2) and with paragraph 1 (b) (iii), (iv) and (v) of this article.
3. In accordance with the procedure laid down in Article 29 it may be decided that, in establishments specially designated for this purpose, the meat may be cut while warm under special conditions other than those laid down in paragraph 45 (c) of Chapter VIII of Annex I to Directive 64/433/EEC.
Article 19
Articles 17 and 18 shall not apply to:
(a) fresh meat imported with the authorization of the country of destination for uses other than human consumption;
(b) fresh meat intended for exhibition or special studies or for analyses, provided that administrative supervision makes it possible to ensure that this meat is not used for human consumption, and provided that when the exhibition finishes or when the special studies or analyses have been carried out this meat, with the exception of that used during the analysis, is withdrawn from Community territory or destroyed.
In this case and in the case referred to in (a), the country of destination shall ensure that the meat in question cannot be put to any use other than that for which it was admitted into its territory;
(c) fresh meat intended exclusively for the supply of international organizations, subject to approval in accordance with the procedure laid down in Article 29 and provided that this meat comes from a third country on the list drawn up in accordance with Article 3 (1) and that animal health requirements are complied with. The Member States in the territory of which the international organizations in question are located shall ensure that this meat is not placed in free circulation.
Article 20
The Member States shall prohibit the importation of:
(a) fresh meat from boars or cryptorchid pigs;
(b) fresh meat:
(i) from animals which have been treated with stilbenes or stilbene derivatives, their salts or esters, or with oestrogenic or thyrostatic substances, and meat containing residues of such substances,
(ii) containing residues of other hormonal substances, or of antibiotics, antimony, arsenic, pesticides, or of other substances which are harmful or likely to make the consumption of fresh meat dangerous or hazardous to human health, in so far as such residues exceed the permitted level.
Permitted levels shall be fixed by the Council, acting on a proposal from the Commission and may subsequently be amended in accordance with the procedure laid down in Article 29;
(c) fresh meat treated with ionizing or ultraviolet radiation, and fresh meat from animals to which tenderizers or other products likely to adversely affect the meat's composition or organoleptic characteristics have been administered;
(d) fresh meat to which substances other than those provided for in paragraph 57 of Chapter X of Annex I to Directive 64/433/EEC, have been added for the purpose of health marking;
(e) fresh meat from animals which have been found to have any form of tuberculosis whatsoever and fresh meat from animals which, after slaughter, have been found to have any form of tuberculosis whatsoever or to be carrying one or more cycisterci bovis or cycisterci cellulosae, live or dead, or, in the case of swine, to have trichinae;
(f) fresh meat from animals slaughtered too young;
(g) parts of the carcase or offal with traumatic lesions incurred shortly before slaughter or malformations or changes referred to in Article 17 (2) (d);
(h) blood;
(i) minced meat, meat cut up in a similar manner and mechanically recovered meat;
(j) fresh meat in pieces of less than 100 grams;
(k) the heads of cattle, and parts of the muscular and other tissues of the head, apart from the tongue and the brain.
Article 21
The method and the procedures required for detecting the presence of trichinae in fresh meat of swine shall be laid down by the Council, acting on a proposal from the Commission.
Article 22
1. Member States shall not authorize fresh meat to be imported without presentation of an animal health certificate and a public health certificate drawn up by an official veterinarian of the exporting third country.
These certificates must:
(a) be drawn up in at least one of the official languages of the country of destination and one of those of the Member State in which the import inspections provided for in Articles 23 and 24 are carried out;
(b) accompany the fresh meat in the original;
(c) consist of a single sheet of paper;
(d) be made out for a single consignee.
The animal health certificate must certify that the fresh meat complies with the animal health requirements laid down in this Directive and with those laid down pursuant to it with respect to the importation of fresh meat from the third country.
2. The certificate must correspond to a model established in accordance with the procedure laid down in Article 29.
It may be decided in accordance with the same procedure and case by case that this animal health certificate and the public health certificate shall constitute a single sheet.
3. The public health certificate must correspond, in presentation and content to the specimen given in Annex A and be issued on the day on which the fresh meat is loaded with a view to dispatch to the country of destination.
Article 23
1. The Member States shall ensure that, upon arrival in the geographical territory of the Community, fresh meat is subjected without delay to an animal health inspection carried out by the competent authority, whatever the procedure under which it was declared.
The detailed rules necessary to ensure that the inspection referred to in this paragraph is carried out in a uniform manner shall be adopted in accordance with the procedure laid down in Article 29.
2. Without prejudice to paragraph 3, the Member States shall ensure that importation is prohibited if this inspection reveals that:
- the meat does not come from the territory of a third country, or from a part thereof, included on the list drawn up in accordance with Article 3 (1);
- the meat comes from the territory of a third country, or from a part thereof, from which imports are prohibited in accordance with Articles 14 and 28,
- the animal health certificate which accompanies the meat does not comply with the conditions laid down pursuant to Article 22 (1) and (2).
3. The Member States shall authorize fresh meat from one third country to be transported to another provided that:
(a) the party concerned supplies proof that the first third country towards which the meat is being sent, after transit through Community territory, undertakes under no circumstances to reject or to send back to the Community the meat the importation or transit of which it has authorized;
(b) such transport has been previously authorized by the competent authorities of the Member State in the territory of which the animal health inspection provided for in paragraph 1 is carried out;
(c) such transport is carried out, without the goods being unloaded on Community territory, under the supervision of the competent authorities in vehicles or containers sealed by the competent authorities; the only handling authorized during this transport shall be that carried out respectively at the point of entry into or exit from Community territory for direct transhipment from a ship or aircraft to any other means of transport or vice versa.
4. All expenditure incurred pursuant to this Article shall be chargeable to the consignor, the consignee or their representative without compensation by the State.
Article 24
1. The Member States shall ensure that each consignment of fresh meat undergoes a public health inspection before being released for consumption on the geographical territory of the Community, and an animal health inspection, carried out by an official veterinarian.
The Member States shall ensure that importers are obliged to give at least two working days' notice to the local service responsible for the import inspection at the post where the fresh meat is to be submitted for inspection, specifying the quantity and nature of the meat and the time from which the inspection may be carried out.
2. The public health inspection provided for in paragraph 1 shall be carried out by random sampling in the case of imports covered by Articles 17, 18 (1) and (2). The purpose of this inspection shall be in particular to verify, in accordance with paragraph 3:
(a) the public health certificate, the compliance of the fresh meat with the stipulations on that certificate, the health marking;
(b) the state of preservation, the presence of dirt or pathogenic agents;
(c) the presence of residues of substances referred to in Article 20;
(d) whether slaughter and cutting have been carried out in establishments approved for that purpose;
(e) the conditions of transport.
3. There shall be adopted, in accordance with the procedure laid down in Article 29, the implementing rules necessary to ensure that the inspections referred to in paragraph 1 are carried out in a uniform way, particularly as regards the application of Article 20, and more particularly the methods of analysis, and sampling intervals and standards.
4. The Member States shall prohibit the marketing of fresh meat if the inspections provided for in paragraph 1 have shown that:
- the fresh meat is not suitable for human consumption,
- the conditions laid down in this Directive and Annex I to Directive 64/433/EEC have not been fulfilled,
- one of the certificates referred to in Article 22 which accompany each consignment does not comply with the conditions laid down in the said Article.
5. If the fresh meat cannot be imported it must be returned, unless this is contrary to animal or public health considerations.
If it is impossible to return the meat, it must be destroyed in the territory of the Member State in which the inspections have taken place.
By way of derogation from this provision and if the importer or if his representative so requests, the Member State carrying out the animal health and public health inspections may authorize its entry for uses other than human consumption, provided that there is no danger for humans or for animals, that the meat is from a third country included on the list drawn up in accordance with Article 3 (1) and that importation is not prohibited under Article 28. This meat may not leave the territory of that Member State, which must verify the final destination of the meat.
6. In all cases, after the inspections referred to in paragraph 1 the certificates must be endorsed so as to indicate clearly the use authorized for the meat.
Article 25
The fresh meat of each consignment authorized for circulation in the Community by a Member State on the basis of the inspections referred to in Article 24 (1) must, when forwarded to the country of destination, be accompanied by a certificate corresponding, in presentation and content, to the specimen given in Annex B.
This certificate must:
(a) be drawn up by the competent official veterinarian at the inspection post or at the place of storage;
(b) be issued on the day of loading for dispatch of the fresh meat to the country of destination;
(c) be drawn up in at least one of the official languages of the country of destination;
(d) accompany the consignment of fresh meat in the original.
Article 26
All expenditure incurred as a result of the application of Articles 24 and 25, and in particular the costs of inspection of the fresh meat, storage costs and the cost of destroying the meat shall be chargeable to the consignor, the consignee or their representative without compensation by the State.
CHAPTER IV
Common provisions
Article 27
1. The Member States shall draw up and communicate to the Commission the lists of:
(a) the frontier inspection posts for the importation of bovine animals and swine;
(b) the inspection posts for importation of fresh meat.
These inspection posts must be approved in accordance with the procedure laid down in Article 29.
2. In order for the frontier inspection posts referred to in paragraph 1 (a) to be approved, they must in particular have available the facilities necessary for carrying out the inspection referred to in Article 12 (1), and for disinfection, disposal of waste fodder, litter, dung, urine and all other waste.
3. In order for the inspection posts referred to in paragraph 1 (b) to be approved, they must have at their disposal at least:
(a) inspection rooms large enough to enable inspections to be carried out in the normal way;
(b) adequate cooling and freezing rooms;
(c) an adequate thawing room;
(d) a laboratory.
4. Responsibility for the inspections shall be assumed by an official veterinarian. The latter may be helped in carrying out purely practical tasks by assistants specially trained for the purpose.
Detailed rules governing this assistance shall be adopted in accordance with the procedure laid down in Article 29.
5. Veterinary experts shall verify that the facilities at the approved inspection posts comply with the conditions of this Article and that inspections are carried out in accordance with this Directive.
These experts must be nationals of a Member State other than the Member State in which the post to be checked is located.
The conditions of application of this paragraph, and in particular the appointment of the veterinary experts and the verification procedures, shall be determined in accordance with the procedure laid down in Article 29.
6. All the expenditure incurred in application of the first subparagraph of paragraph 5 shall be borne by the Community.
Article 28
1. Without prejudice to Article 6, if an infectious or contagious animal disease likely to endanger the health of livestock of one of the Member States breaks out or spreads in a third country or if any other reason connected with animal health justifies it, the Member State concerned shall prohibit the importation of animals of the species covered by this Directive, whether imported directly or indirectly through another Member State, from either the whole of the third country or part of its territory.
2. Without prejudice to Article 14, if an infectious or contagious animal disease breaks out or spreads in a third country included on the list drawn up in accordance with Article 3 (1) and the disease can be carried by fresh meat and is likely to endanger public health or the health of the livestock in one of the Member States or if any other reasons connected with animal health justifies it, the Member State concerned shall prohibit the importation of that meat whether imported directly or indirectly through another Member State, either from the whole of the third country or from part of its territory.
3. Measures taken by the Member States under paragraphs 1 and 2, and notice of the withdrawal of such measures, must be communicated immediately to the other Member States and the Commission, together with the reasons therefor.
The Standing Veterinary Committee shall meet as soon as possible after such communication and shall decide, in accordance with the procedure laid down in Article 30, whether these measures should be amended, in particular in order to ensure their coordination with measures adopted by the other Member States, or withdrawn.
If the situation envisaged in paragraphs 1 and 2 arises and if it appears necessary that other Member States should also apply the measures taken pursuant to those paragraphs, amended where necessary in accordance with the preceding subparagraph, appropriate measures shall be adopted under the procedure laid down in Article 30.
4. Resumption of importation from the third country concerned shall be authorized in accordance with the same procedure."
2. The following Article shall be added:
"Article 32a
1. This Directive shall not apply to imports from third countries of meat of animals referred to in the third indent of Article 1 (1) until the entry into force of the Commission decision(s) adopted, in accordance with the procedure set out in Article 29, for the purpose of making the necessary adjustments to the list referred to in Article 3.
2. National laws on public health shall continue to apply to imports of such meat from third countries until the entry into force of Community rules on this subject."
3. Annexes A to D shall be replaced by the following Annexes: "
ANNEX A
SPECIMEN
+++++ TIFF +++++
+++++ TIFF +++++
ANNEX B
SPECIMEN
+++++ TIFF +++++
+++++ TIFF +++++
"
Article 2
Article 8 of Council Directive 77/96/EEC shall be replaced by the following:
"Article 8
Using the procedure laid down in Article 9, decisions may be taken to adapt or add to the Annexes hereto in the light of technological developments; such decisions must ensure that health guarantees are maintained at their present standard."
Article 3
The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 12 months after its notification and shall forthwith inform the Commission thereof.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 7 February 1983.
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*****
COMMISSION REGULATION (EEC) No 828/90
of 30 March 1990
amending Regulation (EEC) No 3061/84 laying down detailed rules for the application of the system of production aid for olive oil
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organization of the market in oils and fats (1), as last amended by Regulation (EEC) No 2902/89 (2), and in particular Article 5 (5) thereof,
Whereas Article 8 of Commission Regulation (EEC) No 3061/84 (3), as last amended by Regulation (EEC) No 98/89 (4), lays down the detailed rules for apportioning the sums resulting from the retention of the aid referred to in Article 20d of Regulation No 136/66/EEC; whereas, in view of experience gained, those provisions should be adapted in particular as regards the time limit for fixing the unit amounts and the maximum amounts which may be advanced to producer organizations and associations thereof;
Whereas Article 9 of Regulation (EEC) No 3061/84 lays down the minimum items of information which must appear in the stock accounts of approved mills; whereas, in order to facilitate the application of that provision, the content of certain items should be specified;
Whereas Article 10 (2) of Regulation (EEC) No 3061/84 defines the percentages of olive growers who are not members of a producer organization to be checked each year; whereas, in view of experience gained in control agencies, that provision should be adapted;
Whereas Article 12a (2) of Regulation (EEC) No 3061/84 stipulates that in order to determine the quantity actually produced, the basic data in the register of olive cultivation must be taken into account; whereas the basic data in the register of olive cultivation exist in Italy for the 1987/88 marketing year; whereas, in view of the need to conduct additional checks, set out in Commission Regulation (EEC) No 2276/79 (5), as last amended by Regulation (EEC) No 1279/89 (6), following the first application of the register, the time limit for Italy to pay the balance of the aid for the 1987/88 marketing year should be extended;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 3061/84 is hereby amended as follows:
1. In Article 8 (1), 'Before the commencement of each marketing year', is replaced by 'Before 31 March each marketing year,'.
2. Article 8 (3) is replaced by the following:
'3. The advance referred to in Article 11 (4) of Regulation (EEC) No 2261/84 must not exceed:
- In the case of associations, 70 % of the sum obtained by the multiplication of the unit amount fixed for the preceding marketing year pursuant to paragraph 1 (a), by the number of members of producer organizations making them up, and
- in the case of organizations, 70 % of the sum obtained by multiplying the unit amount fixed for the preceding marketing year pursuant to paragraph 1 (b), by the number of foreseeable applications.'
3. Article 9 (2) (d) is replaced by the following:
'(d) the quantities of olive residues obtained, determined on a flat-rate basis;'.
4. Article 9 (2) (e) is replaced by the following:
'(e) the quantities of oil leaving the mill, batch by batch, stating the consignee. Where the quantity of olives crushed comprises several batches of less than the minimum quantity required to make up a pressing in the case of both mills with a traditional production cycle and mills with a continuous production cycle, the stock records must include the overall quantity of oil leaving the mill, broken down between the consignees in proportion to the quantities of olives crushed by each of them;'.
5. Article 9 (2) (f) is replaced by the following:
'(f) the quantities of olive residues leaving the mill:
- determined batch by batch, stating the consignee, in the case of sale to an extraction establishment,
- determined on a flat-rate basis, stating the consignee, in other cases,
- weighed batch by batch where the mill has a weighbridge.'
6. The following subparagraph is added to Article 9 (2):
'The quantity of olive residues shall be determined on a flat-rate basis by applying to the quantity of crushed olives the following indicative coefficients:
- 0,35 for mills with a traditional production cycle,
- 0,45 for mills with a continuous production cycle.'
7. Article 10 (2) is replaced by the following:
'2. The checks referred to in Article 14 (4) of Regulation (EEC) No 2261/84 shall cover a representative percentage to be determined of the olive growers who are not members of a producer organization. The percentage shall vary depending on whether the basic data in the register of olive cultivation provided for in Commission Regulation (EEC) No 2276/79 are or are not available in the areas concerned. The checks must be carried out as a priority on olive growers whose production potential has undergone major changes.'
8. The following subparagraph is added to Article 12b (2):
'However, Italy shall be authorized to pay the balance of the aid for the 1987/88 marketing year by 15 October 1990 at the latest.'
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 March 1990.
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Commission Regulation (EC) No 755/2004
of 22 April 2004
on the issue of system B export licences in the fruit and vegetables sector (lemons)
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),
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(2), and in particular Article 6(6) thereof,
Whereas:
(1) Commission Regulation (EC) No 265/2004(3) 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 lemons 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 lemons after 23 April 2004 should be rejected until the end of the current export period,
HAS ADOPTED THIS REGULATION:
Article 1
Applications for system B export licences for lemons submitted pursuant to Article 1 of Regulation (EC) No 265/2004, export declarations for which are accepted after 23 and before 30 April 2004, are hereby rejected.
Article 2
This Regulation shall enter into force on 24 April 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 April 2004.
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COMMISSION DIRECTIVE 95/17/EC of 19 June 1995 laying down detailed rules for the application of Council Directive 76/768/EEC as regards the non-inclusion of one or more ingredients on the list used for the labelling of cosmetic products (Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (1), as last amended by Commission Directive 94/32/EC (2), and in particular Article 6 (1) (g) thereof,
Whereas there is a need to specify the criteria and conditions under which a manufacturer may, for reasons of trade secrecy, apply not to include one or more ingredients on the minimum list of ingredients which must be included on the packaging of cosmetic products, or, where this is impossible for practical reasons, on an enclosed leaflet, label, tape or card;
Whereas approval of confidentiality should not, however, impinge on the other obligations pursuant to Directive 76/768/EEC and the responsibilities arising from the Articles concerning the cosmetic product's safety, from the Annexes, and from the provisions as to the information necessary for appropriate medical treatment and the case-file to which the national monitoring authorities must have access;
Whereas approval of confidentiality should not be prejudicial to consumer safety;
Whereas the request for confidentiality must be submitted in the Member State of manufacture or initial importation into the Community market, which must also have access to the information referred to in Article 7a of Directive 76/768/EEC, as amended by Directive 93/35/EEC (3), for control purposes;
Whereas to be adequately assessed and monitored the request must include all the particulars necessary for identifying the applicants, for the identification and human health assessment of the ingredient as used in the cosmetic product(s) and for determining the intended use of the ingredient concerned, as well as the grounds for confidentiality and the name(s) of the product containing the ingredient;
Whereas for economic reasons and in deference to his rights the competent authority should inform the applicant, within a brief period of not more than four months, other than in exceptional cases, of the ruling in this case; whereas any refusal to grant confidentiality should be duly reasoned and the means of appeal and time limits clearly indicated;
Whereas in the interests of transparency and monitoring, the competent authority should allocate a registration number to each request it approves; whereas this number should replace the ingredient in the list of ingredients referred to in Article 6 (1) (g) of Directive 76/768/EEC;
Whereas all amendments to the particulars contained in the initial request must be communicated by the applicant to the competent authority, which may then withdraw its approval of confidentiality in view of those modifications, or if new information makes such a measure necessary for compelling public health reasons;
Whereas the duration of the right to confidentiality should not exceed five years, subject to the option, in exceptional circumstances, of an extension for a further three years at the most;
Whereas, in the interests of monitoring product safety and proper enforcement of the Directive, the Commission and the other Member States should be adequately informed of the decisions taken by the competent authority; whereas, on the other hand, such decisions should be recognized throughout the Community territory, except for exceptional reasons;
Whereas the measures provided for in this Directive are in accordance with the opinion of the Committee on the Adaptation to Technical Progress of the Directives on the Removal of Technical Barriers to Trade in the Cosmetics Products Sector,
HAS ADOPTED THIS DIRECTIVE:
Article 1
This Directive shall apply without prejudice to the other obligations arising from Directive 76/768/EEC and the responsibilities arising therefrom, in particular from Articles 2, 4, 5, 7 (3) and 7a thereof.
Article 2
Any manufacturer or his agent or person on whose account a cosmetic product is manufactured, or any person responsible for placing an imported cosmetic product on the Community market, who, for reasons of trade secrecy, wishes not to include one or more ingredients of a cosmetic product on the list referred to in Article 6 (1) (g) of Directive 76/768/EEC, shall submit a request to that effect to the competent authority referred to in Article 10 of this Directive of the Member State of the place of manufacture or initial importation, prior to placing the product on the Community market.
Article 3
The request referred to in Article 2 must include the following particulars:
(a) name or style and address or head office of the applicant;
(b) precise identification of the ingredient for which confidentiality is requested, namely:
- the CAS, Einecs and colour index numbers, the chemical name, the Iupac name, the INCI (1) name, the European Pharmacopoeia name, the international non-proprietary name recommended by the World Health Organization, and the common nomenclature name referred to in Article 7 (2) of Directive 76/768/EEC, where they exist,
- the Elincs name and the official number allocated to it if it has been notified pursuant to Council Directive 67/548/EEC (2) and indication of approval or refusal to approve a request for confidentiality pursuant to Article 19 of that Directive,
- where the names or numbers referred to in the first and second indents do not exist, as in the case of certain ingredients of natural origin, the name of the base material, the name of the part of the plant or animal used, and the names of the ingredient's components, such as solvents;
(c) the evaluation of the safety for human health of the ingredient as used in the finished product(s), taking into account the ingredient's toxicological profile, chemical structure and the level of exposure, as specified in Article 7a (1) (d) and (e) and Article 7a (2) of Directive 76/768/EEC;
(d) the envisaged use of the ingredient and in particular the different categories of products in which it will be used;
(e) a detailed justification of why, by way of exception, confidentiality is sought; for example:
- the fact that the identity of the ingredient or its function in the cosmetic product to be marketed has not been described in the literature and is unknown to others in the trade,
- the fact that the information is not yet in the public domain, even though a patent application has been lodged for the ingredient or its use,
- the fact that if the information were known it would be easily reproducible, to the detriment of the applicant;
(f) if known, the name of each product which is to contain the ingredient(s), and if different names are to be used in the Community market, precise details on each one of them.
If the name of a product is not yet known, it may be communicated at a later date, but at least 15 days before placing the product on the market.
If the ingredient is used in several products, one request shall suffice, provided that the products are clearly indicated to the competent authority;
(g) a statement setting out whether a request has been submitted to the competent authority of any other Member State in respect of the ingredient for which confidentiality is sought, and particulars on the outcome of any such request.
Article 4
1. After receipt of the request for confidentiality in accordance with Article 3 the competent authority shall, within a period not exceeding four months, examine the request and inform the applicant in writing of its decision. In the event of approval, the authority shall also communicate the registration number it has allocated to the product in accordance with the procedure laid down in the Annex. However, if there are exceptional reasons, the competent authority may inform the applicant in writing that an additional period of two months will be required for the examination of the request.
2. Any refusal to grant a request for confidentiality must include a statement of reasons; appeal procedures, together with their time limits, must be clearly explained to the applicant.
Article 5
The registration number referred to in Article 4 (1) shall replace the ingredient in question in the list referred to in Article 6 (1) (g) of Directive 76/768/EEC.
Article 6
1. All amendments to the information provided pursuant to Article 3 must be communicated as rapidly as possible to the competent authority that has granted the request for confidentiality. All changes to the names of cosmetic products containing the ingredient must be communicated to the competent authority at least 15 days before those products are placed on the market under their new name.
2. Taking into consideration the amendments referred to in paragraph 1, or if new information makes it imperative to do so, particularly for compelling reasons of public health, the competent authority may withdraw its approval. In this event it shall inform the applicant of its new decision within the time limits and in accordance with the procedure referred to in Article 4.
Article 7
The decision granting the right to confidentiality shall be valid for a period of five years.
If the beneficiary of this decision considers that there are exceptional reasons justifying an extension of this period, he may submit a reasoned request to the competent authority which initially granted the request for confidentiality.
The competent authority shall decide on this new request within the time limits and under the conditions referred to in Article 4.
The confidentiality period shall not be extended by more than three years.
Article 8
1. Member States shall inform the Commission and the other Member States of their decisions to grant requests for confidentiality or to extend such approval, indicating the name or style and address or head office of the applicants, the names of the cosmetic products containing the ingredient in respect of which the request for confidentiality has been granted, and the registration number referred to in Article 4 (1).
The Commission and the other Member States may obtain, on request, a copy of the case file containing the request for confidentiality together with the decision of the competent authority. Particularly in this framework the competent authorities of the Member States and the Commission shall make arrangements to ensure proper cooperation.
2. Member States shall inform the Commission and the other Member States of their reasoned decisions to refuse or to withdraw approval of confidentiality or to refuse to extend the confidentiality period.
3. Member States and the Commission shall take the necessary measures to ensure that confidential data made known to them is not improperly disclosed.
Article 9
Member States shall recognize the decisions taken by a competent authority as to the approval of confidentiality or extension of the confidentiality period.
However, if, after having been informed or after having received a copy of the case file in accordance with the procedure under Article 8 (1), a Member State challenges a decision taken by the competent authority of another Member State, it may ask the Commission to take a decision pursuant to the procedure referred to in Article 10 of Directive 76/768/EEC.
Article 10
Member States shall designate the competent authorities referred to in this Directive and shall inform the Commission thereof, which shall publish them in the Official Journal of the European Communities. A Member State may also designate the competent authority of another Member State, willing to accept for the purposes of examination in exceptional cases the requests referred to in Article 2.
Article 11
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 30 November 1995. They shall forthwith inform the Commission thereof.
When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.
2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Direcitve.
Article 12
This Directive shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
Article 13
This Directive is addressed to the Member States.
Done at Brussels, 19 June 1995.
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COMMISSION REGULATION (EC) No 780/97 of 29 April 1997 providing for the grant of compensation to producers' organizations in respect of tuna delivered to the processing industry during the period 1 July to 30 September 1996
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3759/92 of 17 December 1992 on the common organization of the market in fishery and aquaculture products (1), as last amended by Regulation (EEC) No 3318/94 (2), and in particular Article 18 (6) thereof,
Whereas the compensation referred to in Article 18 of Regulation (EEC) No 3759/92 is granted, under certain conditions, to Community tuna producers' organizations in respect of quantities of tuna delivered to the processing industry during the calendar quarter for which prices were recorded, where both the average quarterly selling price recorded on the Community market and the free-at-frontier price plus any applicable countervailing charge are lower than 91 % of the Community producer price for the product in question;
Whereas examination of the situation of the Community market has shown that for yellowfin tuna over 10 kilograms, for the period 1 July to 30 September 1996, the average quarterly selling price and the free-at-frontier price referred to in Article 18 of Regulation (EEC) No 3759/92 were lower than 91 % of the Community producer price in force as laid down in Commission Regulation (EC) No 2818/95 of 30 November 1995 fixing, for the 1996 fishing year, the Community producer price for tuna intended for the industrial manufacture of products falling within CN code 1604 (3);
Whereas the quantities eligible for compensation, within the meaning of Article 18 (1) of Regulation (EEC) No 3759/92, may not under any circumstances exceed, for the quarter concerned, the limits laid down in paragraph 3 of that Article;
Whereas during the quarter concerned the quantities sold and delivered to the processing industry established in Community customs territory were lower for the species in question than the average of the quantities sold and delivered during the same quarter of the three previous fishing years; whereas, since the quantities for the quarter do not exceed the limit set by Article 18 (3) of Regulation (EEC) No 3759/92, the total quantities of this product eligible for compensation are equal to the quantities sold and delivered in the quarter;
Whereas in view of the quantities declared per producers' organization the compensation granted to each producers' organization in accordance with Article 18 (4) of Regulation (EEC) No 3759/92 is to be graded; whereas the qualities eligible per grade are to be allocated between the producers' organizations concerned in proportion to their respective outputs during the same quarter of the 1993 to 1995 fishing years;
Whereas the grant of compensation for the products in question should therefore be decided for the period 1 July to 30 September 1996;
Whereas the operative event giving entitlement to compensation and the date thereof should be specified for the calculation of payments;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fishery Products,
HAS ADOPTED THIS REGULATION:
Article 1
The compensatory allowance referred to in Article 18 of Regulation (EEC) No 3759/92 shall be granted for the period 1 July to 30 September 1996 in respect of the following products:
TABLE
Article 2
1. The total quantities on which the allowance may be granted for these species are:
- Yellowfin tuna +10 kg: 15 579,195 tonnes.
2. The allocation of these total quantities among the producers' organizations concerned is specified in the Annex hereto.
Article 3
The operations to be taken into account to determine entitlement to the compensatory allowance shall be sales for which the invoices are dated within the quarter concerned and which have been used to calculate the average monthly selling price referred to in Article 7 (1) (b) of Commission Regulation (EEC) No 2210/93 (4).
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, 29 April 1997.
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Council Decision
of 18 February 2003
appointing an alternate member of the Committee of the Regions
(2003/143/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 263 thereof,
Having regard to the proposal from the Austrian Government,
Whereas:
(1) On 22 January 2002 the Council adopted Decision 2002/60/EC(1) appointing the members and alternate members of the Committee of the Regions,
(2) The seat of an alternate member of the Committee of the Regions has become vacant following the resignation of Mr Peter SCHACHNER-BLAZIZEK, of which the Council was notified on 12 November 2002,
HAS DECIDED AS FOLLOWS:
Sole Article
Mr Franz VOVES is hereby appointed an alternate member of the Committee of the Regions in place of Mr Peter SCHACHNER-BLAZIZEK for the remainder of his term of office, which expires on 25 January 2006.
Done at Brussels, 18 February 2003.
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COMMISSION REGULATION (EC) No 2050/97 of 20 October 1997 determining the reductions to be applied in certain Member States to the compensatory payments under the aid scheme for rice producers
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 organization of the market in rice (1), and in particular the second subparagraph of Article 6 (5) thereof,
Whereas Article 6 (5) Regulation (EC) No 3072/95 lays down that where the areas given over to rice in a given year exceed a specific base area, a reduction in the compensatory payment shall be applied to all producers in the base area in question for the same production year;
Whereas Article 6 (1) of Commission Regulation (EC) No 613/97 of 8 April 1997 laying down rules for the application of Council Regulation (EC) No 3072/95 as regards the conditions for granting compensatory payments under the aid scheme for rice producers (2), as amended by Regulation (EC) No 1305/97 (3), lays down that any reductions shall be determined on the basis of the information provided in notifications from the Member States, after verification thereof;
Whereas the notifications received from the Member States show that the base area was exceeded by 4,98 % in Spain and by 13,52 % in Greece; whereas the reduction to be applied in accordance with the above provision is therefore five times the overrun recorded for Spain and six times for Greece;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The amounts of the compensatory payments fixed in Article 6 (3) of Regulation (EC) No 3072/95 shall be reduced as follows:
TABLE
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, 20 October 1997.
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COMMISSION REGULATION (EEC) No 1802/93 of 6 July 1993 on the arrangement applicable to agricultural products subject to reference quantities and statistical surveillance originating in the African, Carribean and Pacific States
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 715/90 of 5 March 1990 on the arrangements applicable to agricultural products and certain goods resulting from the processing of agricultural products originating notably in the African Carribean and Pacific States (1), as extended by Regulation (EEC) No 444/92 (2), and in particular Articles 16 and 27 thereof,
Whereas Article 16 of Regulation (EEC) No 715/90 stipulates for certain agricultural products, covered by that Regulation and originating in those countries, the progressive reduction of customs duties as well as control subject to reference quantities and a community surveillance in a set timetable;
Whereas this reduction of the customs duties is made progressively over the same periods and in accordance with the same timetable as those laid down in the Act of Accession of Spain and Portugal for the same products imported from these countries into the Community as constituted on 31 December 1985;
Whereas Commission Regulation (EEC) No 3593/91 of 11 December 1991 abolishing in two stages certain customs duties applicable in trade between the Community of Ten and Spain and Portugal as a result of the Mediterranean agreements (3) has foreseen that the residual customs duties applicable in 1991 to products from Spain and Portugal for which the dismantling of tariffs continued after 1 January 1993, were eliminated in two equal instalments on 1 January 1992 and 1 January 1993; whereas the same concession should be granted for the same products originating in ACP States, while keeping in force the controls in the framework of reference quantities and statistical surveillance foreseen by the abovementioned Regulation (EEC) No 715/90;
Whereas, in execution of its international obligations, the Community should open reference quantities and establish a system of statistical surveillance as regards the products shown in the Annex;
Whereas, in order to enable the competent authorities within the Commission to establish an annual trade balance sheet for each of the products and, if necessary, to put into application the arrangement provided for in Article 16 (3) of the abovementioned Regulation (EEC) No 715/90, these products are subject to a statistical surveillance in accordance with Council Regulations (EEC) No 2658/87 (4), as last amended by Commission Regulation (EEC) No 1001/93 (5), and (EEC) No 1736/75 (6), as last amended by Regulation (EEC) No 1629/88 (7);
Whereas to ensure the effectiveness of the surveillance system the Member States must charge against the reference quantities as and when the products are entered with the customs authorities for free circulation; whereas, therefore, it is appropriate for the periods indicated in the Annex to establish reference quantities for those products listed in the Annex;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
1. Imports into the Community of certain products originating in the African, Caribbean and Pacific States shall be subject to reference quantities and to a statistical surveillance.
The products referred to in the first subparagraph, their CN codes, the periods of validity and the levels of the reference quantities are set out in the Annex.
2. Quantities shall be charged against the reference quantities as and when products are entered with customs authorities for free circulation and acocmpanied by a movement certificate. If the movement certificate is submitted a posteriori, the goods shall be charged against the corresponding reference quantity at the moment when the goods are entered for free circulation.
The extent to which the reference quantities are used up shall be determined at Community level on the basis of the imports charged against them in the manner defined in the first subparagraph, as communicated to the Statistical Office of the European Communities in application of Regulations (EEC) No 2658/87 and (EEC) No 1736/75.
Article 2
The Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with.
Article 3
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 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 6 July 1993.
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COUNCIL AND COMMISSION DECISION
of 24 January 2006
on the conclusion of the Protocol to the Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Ukraine, of the other part (PCA), on accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the PCA and on adjustments to the PCA
(2006/538/EC, Euratom)
THE COUNCIL OF THE EUROPEAN UNION AND THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular Article 44(2), the last sentence of Article 47(2), and Articles 55, 57(2), 71, 80(2), 93, 94, 133 and 181a, in conjunction with the second sentence of Article 300(2) and the first subparagraph of Article 300(3), thereof,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular the second paragraph of Article 101 thereof,
Having regard to the 2003 Treaty of Accession, and in particular Article 2(3) thereof,
Having regard to the 2003 Act of Accession, and in particular Article 6(2) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Having regard to the Council's approval pursuant to Article 101 of the Treaty establishing the European Atomic Energy Community,
Whereas:
(1)
The Protocol to the Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Ukraine, of the other part (PCA), on accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the PCA and on adjustments to the PCA, was signed on behalf of the European Community and the Member States on 29 April 2004 in accordance with Council Decision 2006/537/EC (2).
(2)
Pending its entry into force, the Protocol has been applied on a provisional basis from the date of accession.
(3)
The Protocol should be approved,
HAVE DECIDED AS FOLLOWS:
Article 1
The Protocol to the Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Ukraine, of the other part (PCA), on accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the PCA and on adjustments to the PCA is hereby approved on behalf of the European Community, the European Atomic Energy Community and the Member States.
The text of the Protocol is attached to this Decision (3).
Article 2
The President of the Council shall, on behalf of the European Community and its Member States, give the notification provided for in Article 4 of the Protocol. The President of the Commission shall simultaneously give such notification on behalf of the European Atomic Energy Community.
Done at Brussels, 24 January 2006.
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COMMISSION DECISION of 28 February 1996 authorizing the acquisition by Ruhrkohle Handel GmbH of control of Raab Karcher Kohle GmbH (Case No IV/ECSC.1147-Ruhrkohle Handel/Raab Karcher Kohle) (Only the German text is authentic) (Text with EEA relevance) (96/471/ECSC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 66 thereof,
Having regard to Decision No 24/54 of 6 May 1954 laying down in implementation of Article 66 (1) of the Treaty, a Regulation on what constitutes control of an undertaking (1),
Having regard to the proposal, notified on 15 November 1994, for the acquisition by Ruhrkohle Handel GmbH of the entire share capital of Raab Karcher Kohle GmbH,
Having consulted the Government of the Federal Republic of Germany,
Whereas:
I. THE PARTIES
(1) Ruhrkohle GmbH, Düsseldorf ('RH`) is a wholly-owned subsidiary of Ruhrkohle Beteiligungs-GmbH, which in turn is a wholly-owned subsidiary of Ruhrkohle AG. Ruhrkohle Beteiligungs-GmbH is the holding company for those of Ruhrkohle AG's interests which do not involve the production of coal or coke.
(2) RH is active in the fields of trade in solid fuels (hard coal, hard coal briquettes, coal coke and brown coal), trade in mineral oil, vehicle servicing and building technology. The coal business includes domestic and international trading with customers in industry and the wholesale trade and with private householders. Coal processing (for special grades of coal) is also carried on. In 1994 RH achieved a total turnover of DM 3,82 billion, of which some two thirds was in Germany and one third in the rest of Western Europe. The trade in coal business turned over DM 2,67 billion. RH employs 1 960 people, including approximately 400 in coal-related activities.
(3) Ruhrkohle AG, Essen, ('RAG`) is primarily active in the mining of hard coal and the production of coke, and distributes both products either direct or through RH and other traders. Accounting for over 80 % of domestic hard coal production, RAG is by far the largest German mining company. RAG also has interests in the fields of electricity generation, chemicals and plastics, waste treatment, mining technology and real estate. In 1994 RAG's turnover came to DM 22,5 billion, of which DM 22,4 billion was achieved in Germany. Of this total, DM 13,1 billion was earned from mining and DM 12,4 billion from the activities of the other group companies. Of RAG's total workforce of 111 000, 87 000 are still employed in mining (1969: 183 000). RAG's shares are held by five shareholders (partly through joint ventures with co-proprietors): VEBA (approximately 39,2 %), VEW (30,2 %), Thyssen (12,7 %), Krupp-Hoesch (8 %) and Arbed SA (6,5 %); own holding: 3,5 %.
(4) Raab Karcher Kohle GmbH, Essen, ('RKK`) ties together the coal trading activities of Raab Karcher AG, a member of the VEBA group. In 1994 the company employed just over 700 people (1993: 1 209) and achieved a turnover of DM 1,29 billion (1993: DM 1,59 billion). Of this total, DM 1,18 billion was earned in Germany and DM 113 million in other Member States.
(5) RH (like RAG) and RKK market hard coal, an ECSC product, and are therefore undertakings within the meaning of Article 80 of the ECSC Treaty.
II. THE PROPOSED TRANSACTION
(6) RH proposes to acquire all the shares in RKK from Raab Karcher AG. This will result in a 'concentration` within the meaning of Article 66 of the ECSC Treaty.
III. THE CONCENTRATION
(7) By acquiring all the capital and voting rights in RKK, RAG (through RH) will gain direct control of RKK. This constitutes an acquisition of control within the meaning of High Authority Decision No 24/54 and hence a concentration within the meaning of Article 66 (1) of the ECSC Treaty.
(8) This finding is not invalidated by the fact that RKK, as the undertaking being taken over, has hitherto belonged indirectly to VEBA AG and that VEBA is the largest shareholder in RAG (VEBA has a 39,2 % stake in RAG and about 40 % of the voting rights at the general meeting). In the light of RAG's articles of association and the rules of procedure of its executive board and supervisory board, it cannot be said that VEBA exercises sole control over RAG and that the proposed acquisition of RKK is accordingly an internal company matter which does not have to be notified. Instead, RAG's general meeting, executive board and supervisory board each take decisions by a simply majority in all cases (paragraphs 6 (2), 11 (3) and 21 (3) of the articles of association; paragraph 13 (7) of the rules of procedure of the executive board). This also applies to matters of fundamental importance such as questions to do with the corporate strategy of the whole undertaking, the safeguarding of shareholders' rights in subsidiaries, etc. (paragraph 3 (7) read in conjunction with paragraph 2 (1) of the rules of procedure of the executive board). Under the terms of the agreements reached pursuant to the memorandum of association, there are no veto rights for certain shareholders, and according to the shareholders there is no agreement on the pooling of voting rights. Changing coalitions and, in particular, majority decisions going against VEBA are therefore theoretically possible.
(9) The parties take the view that RAG is controlled by none of the shareholders, whether alone or jointly with others. This may be borne out by the possibility of changing coalitions. There is, however, evidence to suggest that RAG is controlled jointly by the five shareholders. Because of RAG's prominent position under German coal policy, the shareholders have strong common interests. In particular under the 'Jahrhundertvertrag` (Century contract), which was applicable until the end of 1995, and the 'Hüttenvertrag`) (Steelworks Agreement) (see paragraphs 26 and 27 below), RAG is essentially under an obligation to implement German coal policy in respect of hard coal in close cooperation with the competent national authorities. Indeed, decisions within RAG's general meeting and supervisory board have so far always been taken unanimously.
(10) Although the existence between minority shareholders of strong common interests may result in their not acting against each other in exercising their voting rights in relation to the joint venture, this rarely justifies the conclusion that there is joint control (see inter alia paragraph 32 of the Commission notice on the notion of a concentration under Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (Official Journal No C 385 of 31 December 1994, page 5). In earlier Decisions the Commission left open the question of the joint control of RAG by its shareholders. It found that VEBA exercises only a limited influence over RAG, and in the assessment under the competition rules it largely ignored the relationship between the two firms (see paragraph 2 of the Decision of 12 December 1990, Case No 782 Stinnes Intercarbon/Stromeyer). The 'Jahrhundertvertrag` expired at the end of 1995 and the new subsidy rules for German coalmining in force from 1996 may lead to divergences in the interests of the individual shareholders in RAG. The question of the joint control of RAG does not need to be decided here. Even assuming that there is joint control, with respect to RKK there would be a change in the control by VEBA. RKK would no longer be under VEBA's sole control, being placed under the joint control of RAG's shareholders (on the change from sole to joint control, see paragraphs 16 and 18 of the Commission notice on the notion of a concentration under Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings. The acquisition of RKK is therefore at all events a concentration within the meaning of Article 66 (1) of the ECSC Treaty.
(11) For the purposes of assessing the concentration under the competition rules, the question of the joint control of RAG by its shareholders must, however, be taken into account in that, assuming that VEBA jointly exercised a decisive influence over RAG, even before the concentration took place there was no completely independent competitive relationship between RAG/RH and RKK. An assessment of this limited competitive relationship does not need to be carried out here, however, because, even if there were a completely independent competitive relationship between RAG/RH and RKK, the proposed concentration will not - as is shown below - lead to any impediment to effective competition.
IV. THE RELEVANT MARKET
1. The product markets
(12) RH and RKK sell hard coal and hard coal products (hard coal briquettes and coal coke) to industrial users (the electricity industry, steelmakers and other industrial enterprises), domestic consumers and small businesses. The domestic consumer and small business sector does not come under the ECSC Treaty (see Article 80 of the ECSC Treaty).
Demand side
(13) On the demand side in the case of hard coal and hard coal products (hereinafter called 'hard coal`), it can first of all be said in general terms that there is a market for the sale of hard coal to industrial users. Owing to the different end uses, different subsidy provisions for certain categories of user, and hence markedly different prices, the market should, however, be further subdivided into sales to the electricity industry (power station coal or steam coal), steelmakers (coking coal and blast furnace coke) and other industrial users. The last-named category covers primarily the sugar, cement and paper industries and purchases mainly steam coal to produce process heat. All these types of coal and coke are, pursuant to Article 81 read in conjunction with Annex I, subject to the rules of the ECSC Treaty. A corresponding division of the market according to category of user is also proposed by the parties.
The substitutability of fuels
(14) With regard to sales to the electricity industry (electricity-generating utilities and auto-generators) which account for 70 % of all sales (see paragraph 25) other fuels cannot in principle be substituted for hard coal. The supply structure being dictated by the existence of certain power stations and regulated to some extent by central government ('energy mix`), and the substantial investment needed to convert existing power stations and build new ones make it difficult, if not impossible, to switch from hard coal to oil, natural gas or nuclear power. The parties have submitted that a considerable number of power stations can also burn oil or gas and that there are direct imports of electricity. Electricity is imported from other Member States to supplement domestically produced power during peak-load periods, but so far the quantities involved have been insignificant. The Commission has ascertained in the course of its enquiries, moreover, that to some extent oil is used for start-up purposes and oil or gas for standby purposes in the event of instability in the coal combustion process due, for example, to impurities. With oil or gas, however, a coal-fired power station attains only a fraction of the combustive power that it does using hard coal, so in reality neither fuel can be substituted for the latter.
(15) The same holds true in principle for brown coal. Coal-fired power stations are not suited to burning both types of coal. Converting from one type of coal to the other is, as the parties themselves admit, uneconomic and, owing to the different combustion characteristics, scarcely feasible technically (boiler volume, by-product recovery).
(16) Since, unlike hard coal, brown coal is disproportionately costly to transport (water content of up to 40 %), competition with hard coal would in any event come into prospect only where the two types of coal are mined in adjacent areas (see paragraph 10 of the Commission Decision of 27 June 1994, IV/M.402 - PowerGen/NRG/Energy/Morrison Knudsen/Mibrag). Such competition is relevant, however, only in the context of building new power stations, and it therefore affects hard coal sales only indirectly. The Commission has ascertained in the course of its enquiries that apart from the construction of a new brown-coal-fired power station in Brandenburg no further power station capacity is to be built in Germany for the next 10 years. In the operation of existing power stations, price developments in relation to individual fuels matter only in so far as a power station operator has different types of station at his disposal and is able to vary their loading. During peak-load periods even these power station operators are no longer flexible in this respect.
(17) For these reasons the relevant product market in relation to the principal group of users, the electricity industry, must be restricted to hard coal, other fuels providing, at best, a certain marginal competition at the preliminary stage of capital expenditure on new and replacement combustion plant (see paragraph 7 of the Commission Decision of 12 December 1990 - Stinnes Intercarbon/Stromeyer).
(18) From the point of view of steelmakers, other fuels can likewise by substituted for hard coal only to a very limited extent. The question whether the relevant product market is to be limited to hard coal or, if necessary, further defined can, however, in the last analysis be left open here; even assuming that there was a market for the sale of hard coal to steel producers, the concentration will not result in any hindering of effective competition (see paragraph 55).
(19) In the case of sales of hard coal to other industrial users, there are, on the other hand, certain substitution relationships with oil and gas or other fuels. The parties have given examples of the dual use of furnaces in the cement industry; main fuels such as coal are burnt in a primary furnace, meeting some 70 % of energy requirements, and cheaper fuels or waste materials are burnt in a secondary furnace to meet the remaining third of requirements. Similar examples were given for the sugar industry. The Commission recognized the competitive pressure exerted by other fuels on hard coal in the field of 'other industrial users`, in its British Fuels Limited Decision of 9 July 1987 (1987 Competition Report, point 94). However, even in the case of these industrial users there would appear to be no unlimited interchangeability between hard coal and other energy sources owing to the conversion costs entailed. The question whether the relevant product market is to be limited to hard coal or, if necessary, further defined can, however, in the last analysis be left open here: even assuming that there was a small market for the sale of hard coal to other industrial users, the concentration will not result in any hindering of effective competition (see paragraphs 56 et seq.)
2. The relevant geographic market
(20) The market for the sale of hard coal to the electricity industry in Germany is from a geographical point of view still a national one. The parties gave a definition to that effect in their notification. This is due first and foremost to the special system for subsidizing German hard coal, which has produced a supply structure in the energy sector and a competition structure in the sale of coal in Germany that are unlike those in the other Member States (see paragraphs 26 et seq.) Although German power station operators will in future be able to buy imported coal without restriction, there is little incentive for them, until they have exhausted the resources available under the government's aid package, to import hard coal rather than purchase it from RAG, or any other German producer. Any imports at a price below the average third-country price would depress the latter even further during the following quarter, and this would have the effect, from the standpoint of foreign suppliers, of an entry barrier. On the whole, there is relatively little interpenetration of Member States markets.
(21) The sale of hard coal to steelmakers is determined until the end of 1997 by the procurement obligations and subsidies provided for under the 'Hüttenvertrag` (see paragraph 27). From a geographical point of view, this market is therefore a national one.
(22) With regard to unsubsidized sales of hard coal to other industrial users, there may be said to be a geographic market extending beyond Germany inasmuch as most of the coal such users buy is imported. On the other hand, customer-supplier relationships play a more prominent role in what is very much a small-business-user structure; the supplier function has so far been performed essentially by German traders. The question of the definition of the geographic market can, however, in the last analysis be left open here: even if Germany is assumed to be the relevant market, the concentration will not hinder effective competition (see paragraphs 56 et seq.)
V. ASSESSMENT UNDER ARTICLE 66 (2)
(23) The concentration between RH and RKK can be authorized under the conditions laid down in Article 66 (2) if the proposed transaction does not give the undertakings concerned the power:
- to determine prices, to control or restrict production or distribution or to hinder effective competition in a substantial part of the market for these products, or
- to evade the rules of competition, in particular by establishing an artificially privileged position involving a substantial advantage in access to supplies or markets.
(24) The question whether the proposed concentration will hinder or eliminate competition in the German market for the sale of hard coal must be examined against the background of the subsidy rules for German hard coal intended for electricity generation (power station coal), which are set to change in 1996, and in the light of RAG's position in the sale of domestic and imported coal arising out of the concentration.
1. The sale of hard coal in Germany
(25) In 1994 a total of approximately 80 million tonnes hard coal and hard coal products were sold in Germany (1993: 76,7 million tonnes, in each case for hard coal, hard coal briquettes and coal coke together; source: Statistik der Kohlenwirtschaft e.V., Zahlen zur Kohlenwirtschaft vol 142, June 1995). Of the total amount, 17,6 million tonnes (plus 0,9 million tonnes of coking coal for processing into coke in Germany) consisted of imports. The German market is just ahead of the British market and well ahead of the other coal-consuming Member States (Spain, France, Italy and Benelux) the largest market in the EU. Of total sales the lion's share, or some 70 %, was accounted for by electricity producers. The steel industry bought 18,8 million tonnes and other industrial users 4,7 million tonnes. Domestic consumers and small businesses bought approximately 1,3 million tonnes.
(26) In the past the German market was characterized, in relation to the two main user groups, namely electricity producers and steelmakers, by the 'Jahrhundertvertrag` and the 'Hüttenvertrag`. 'Jahrhundertvertrag` is the name given to a set of agreements dating from 1980 between the 44 public electricity-generating utilities and industrial producers of electricity for in-house consumption (autogenerators), on the one hand, and the Gesamtverband des deutschen Steinkohlebergbaus (General Association of the German Coalmining Industry), on the other, on the sale of specific quantities of German hard coal up to 1995 for the purpose of generating electricity. Coal was purchased at a fixed list price equal to the cost of production, the difference between that price and the world market price for heavy fuel oil being refunded to the electricity producers through a levy, the 'Kohlepfennig`, on final consumers. During negotiations between the German Government and the parties to the 'Jahrhundertvertrag` as part of the 1989 'Kohlerunde` (round of coal talks), the obligatory minimum amount to be purchased was set for the last five-year period (1991-95) at 40,9 million tonnes coal equivalent (tce) (or approximately 41,5 million tonnes of hard coal) a year, of which 34,4 million tce was for the electricity-generating utilities and 6,5 million tce for autogenerators. The Commission exempted the 'Jahrhundertvertrag`, which expired on 31 December 1995, from the prohibition on restrictive practices, by Decision of 22 December 1992 pursuant to Article 85 (3) of the EC Treaty (Official Journal No L 50, of 2 March 1993, page 14). The 'Zollkontingentsgesetz` (Tariff Quota Act), which in the past has restricted the volume of coal imports, also expired at the end of 1995.
(27) The 'Hüttenvertrag` provides for certain procurement obligations for coking coal on the part of German steelmakers. It is applicable until the year 2000 and has been authorized by the Commission up to the end of 1997 (Decision of 30 March 1989, Official Journal No l 101, of 13 April 1989, page 35). The 1991 'Kohlerunde` talks ended in agreement on a set of follow-up arrangements applicable until 2005. As a result of the procurement obligations, customer-supplier relationships for coking coal and coke exist almost exclusively between coal producers and the steelmakers. The wholesale trade is scarcely involved in this business.
(28) From 1 January 1996 a new subsidy regime will apply to German power station coal. In future it will no longer be the sales volume that is fixed but in a slightly digressive form the aid volume. The law to safeguard the use of hard coal in power generation and to amend the Atomic Law and the Electricity Supply Law of 19 July 1994 ('Artikelgesetz`; the Article Law) provides for aid for the conversion of coal into electricity of DM 7,5 billion for 1996 and DM 7 billion a year for the period 1997 to 2000. A steeper reduction in 1999 and 2000 is, however, not ruled out. With an estimated difference in price between German and imported hard coal of DM 200 a tonne, a sales volume of 37,5 million tonnes in 1996 and 35 million tonnes in subsequent years is being aimed at. Within the limits of this aid package, subsidies are paid direct to the mining companies. They are equal to the difference between the cost of producing German coal and the average third-country price for imported hard coal, free at German frontier. Details are governed by the Electricity-from-coal Directives of the Federal Ministry of Economic Affairs of 13 June 1995 (Bundesanzeiger (Federal Gazette) of 20 June 1995, page 6565).
(29) This aid to Community coal can be granted only after prior authorization from the Commission, in accordance with the provisions set out in Decision No 3632/93/ECSC. In line with that Decision, State aid must cause no distortion of competition and must not discriminate between coal producers, purchasers and consumers in the Community.
(30) The parties are of the opinion that, as a result of the new subsidy rules, the market for hard coal as such will be opened up to competition from imports as from 1996.
(31) With financial support from the aid budget, RAG and the other two German mining companies (Saarbergwerke and Preussag Ibbenbühren) must from 1996 sell their coal independently to power station operators. This represents in principle a step towards the opening-up of the market for power station coal, which in the past was almost completely regulated; from 1996 electricity producers will have more opportunities than before to purchase imported coal. However, according to the information in the Commission's possession, it is only to a limited extent that there can be said to be an opening-up of the market to competition. For the time being RAG has no room for manoeuvre when it comes to setting prices. In order to qualify for a subsidy, it is in principle, obliged to sell at the average third-country price. Under the Electricity-from-coal Directives and the award decisions, that price can be undercut in only a limited number of exceptional circumstances. If, for example, an electricity producer can prove that it has purchased 20 % of its annual requirements at an imported-coal price which is below the third-country price, it can insist on RAG's supplying German hard coal at the lower price. RAG is then entitled to a refund of the (accordingly greater) difference compared with its production costs, but it must at the same time bear in mind that its share of the aid budget of DM 7,5 billion (DM 7 billion from 1997) will be exhausted more quickly.
(32) On the other hand, RAG is in a position until the aid budget is exhausted always to sell at the average world market price. The sales opportunities of other coal importers are consequently limited from the outset. Every import of coal at a below-average price has a favourable impact, when the further average third-country price is calculated, on the price chargeable to electricity producers. RAG's actual sales prospects from 1996 compared with those of importers are difficult to evaluate because, in the past, sales have not reflected the electricity industry's actual requirements. The Commission's enquiries have revealed, however, that electricity producers at least in the short term will still turn predominantly to RAG and the other German mining companies for their power-station-coal requirements. They can now obtain German hard coal at the average world market price. Moreover, their power stations are designed to run on German hard coal and the increasingly important recovery of by-products of the combustion process is geared to the make-up of German hard coal. Individual electricity producers have mentioned overall logistical and qualitative advantages as a reason for not changing their previous purchasing behaviour. Security of supply and the preference of public electricity-generating utilities for domestic hard coal were cited as further grounds for adhering to the same procurement policy. Even if the annual sales volume of RAG and the other two German mining companies were to taper off from 1996, importers will not benefit direct from the falling demand for coal.
(33) In RAG's view, electricity producers will purchase the quantities not covered by long-term supply contracts through short-term spot transactions involving smaller quantities. This will benefit importers to some extent. The Commission established in the course of its enquiries that, by and large, both competitors and users expect the share of sales accounted for by imports to increase to some extent. In 1994 18,5 million tonnes of hard coal products (including 2,2 million tonnes of coke) were imported into Germany (2). On the basis of the expected increase, the volume of imports may be estimated at some 20 to 25 million tonnes in the year 2000. Only after 2000 following the further reduction in subsidies to the German coal industry is there likely to be a more marked increase in import penetration of the German market. Some studies conclude that a fairly sharp increase will occur: while the Verein Deutscher Kohleimporteure e.V. (Association of German Coal Importers), Hamburg, views scenarios of either 25 or 30 million tonnes as possible in 2000, the Statistik der Kohlenwirtschaft e.V., Essen, point to an import volume of more than 32 million tonnes that year. The parties refer to studies by Prognos AG and the International Energy Agency (IEA), which both forecast an increase to over 35 million tonnes in the year 2000.
(34) To sum up, the market for the sale of hard coal to industrial users in Germany will in the years ahead undergo considerable change irrespective of the proposed concentration between RH and RKK. Owing to the new subsidy rules applicable from 1996, customers in the electricity industry will reduce their purchases of domestic hard coal, which currently has a 70 % share of all coal sales, and in the medium term will exert increased demand for imported hard coal. This will have a particular impact on the structure of competition at the trading stage, as will be explained below (see paragraphs 42 et seq.) The assessment of the new entity in the light of competition law must take particular account of this impact despite the fact that it is not conditioned by the concentration.
2. The impact of the concentration on the relevant markets
(a) Market shares
(35) In 1994 RAG (including RH) sold a total of 55,9 million tonnes of hard coal, briquettes and coke. Of this amount, 40,8 million tonnes were sold to electricity producers, 14,7 million tonnes to steelmakers and 1,5 million tonnes to other industrial users, domestic consumers and small businesses.
(36) In 1994 RKK sold a total of 7,9 million tonnes (1993: 8,1 million tonnes), of which 5,6 million tonnes were sold in Germany. Of this latter amount, 3,5 million tonnes were mined in Germany and 2,1 million tonnes were imported.
(37) According to the figures submitted by the parties, in 1994 the volume of the market for power-station coal could be put at 57,6 million tonnes (1993: 58,5 million tonnes, in each case not counting sales to the steel industry and to the domestic consumer and small business user sector). Bearing in mind that 85 % of the coal sold by RH and RKK is supplied by RAG and is therefore included in RAG's sales figures, the following market shares are arrived at for the sale of hard coal to the electricity industry:
TABLE
(38) Taking only sales of imported hard coal to the electricity industry (volume: 11,6 million tonnes), the following picture emerges:
TABLE
(39) In the case of sales of hard coal to other industrial users (excluding steelmakers) the market shares are as follows (taking as a basis a volume of 4,7 million tonnes in 1994):
TABLE
(40) The total volume of sales of hard coal to steelmakers came to 18,8 million tonnes in 1994. As a result of steelmakers' purchasing obligations under the 'Hüttenvertrag`, 14,4 million tonnes consisted of direct supplies from RAG at regulated prices. RH and RKK sold only small quantities of imported coal in this market; RH sold [ . . . ] million tonnes (3) and RKK [ . . . ] million tonnes (4). The combined share of the total market comes to [75-85 %] (5). Saarbergwerke has a market share of [10-15 %] (6) ([ . . . ] million tonnes (7) direct supplies). The combined share of RH and RKK in all imports of coke and coking coal comes to [25-30 %] (8).
(b) The competitive position of RAG after the concentration
(41) Taking as a basis the market conditions currently prevailing in the hard coal distribution business, RH/RKK would have a sales volume in excess of 20 million tonnes of hard coal (10,6 million tonnes of domestic hard coal and 9,7 million tonnes of third-country coal, including 4 to 5 million tonnes of coal imported into Germany). In view of the expected changes in market structure in the years ahead and the line previously taken by RKK in the German coal trade, the acquisition of RKK cannot, however all things considered be expected to give RAG the power to hinder effective competition in the sale of hard coal to industrial users (electricity industry, steelmakers and other industrial users), particularly given the likely reduction of its market share (Article 66, paragraph 2 of the ECSC Treaty).
(aa) Sales to the electricity industry (power station coal)
(42) In the past against the background of the payment of subsidies under the 'Jahrhundertvertrag` sales of domestic hard coal to electricity producers via traders took place on a fairly large scale. Under the subsidy rules applicable from 1996, the distinction between direct sales by the coalmining companies and sales through traders will become blurred. In future it will be in the interests of the German mining companies and RAG in particular to sell domestic hard coal direct at the predetermined average third-country price. The parties therefore proceed on the assumption, as do other market participants, that in future substantially less, if any, German power station coal will be sold by traders such as RH, RKK, etc. All traders will basically switch to trading in imported coal. With regard to domestic hard coal, trade will probably, as the parties have submitted, be maintained only with autogenerators. But since this involves an annual volume of only some 0,6 million tonnes, RH/RKK will derive no significant competitive advantage from being tied into the RAG group.
(43) If, therefore, it is to be assumed that in future there will no longer be any room for a trading stage in the sale of German hard coal to the electricity industry, the acquisition of RKK will result in RAG expanding much less than might at first appear to be the case. As indicated above, it will mean an effective increase in market share of [< 5 %] (9) in the field of power-station coal, the largest segment of the hard coal market. The fact that RAG itself has such a sizeable share of the power-station coal market is a direct result of the particular circumstances linked to the selling of subsidized German coal. The expected increase of competition in this market in the medium to long term will erode RAG's current market share. Since RAG has no real room for manoeuvre here when it comes to setting prices, this market share does not reflect real market power. In view of imported coal's increasing importance in future, the expansion through the acquisition of RKK will, on the basis of 1994's figures [5-10 %] (10), mean an increase of all imports into Germany. The import business is not, however, as will be seen below, characterized by lasting customer-supplier relationships and was not one of RKK'S particular strengths.
RKK's competitive potential
(44) In 1994 RKK achieved a turnover of DM 1,3 billion and employed 700 (1995: 500) people. It has an extensive distribution and storage network consisting of nine branches with 44 storage depots. Of these depots 37 are used exclusively, however, to supply domestic consumers and small business users (including 28 in the new Federal States). Only at four depots - Mannheim, Stuttgart, Karlsruhe and Duisburg-Ruhrort - is the supplying of industrial users, in addition to domestic consumers and small business users, of any importance. Of the 500 people currently employed by RKK, as many as 400 work in the domestic consumer and small business user sector. According to the parties, the domestic consumer and small business user sector will in the years ahead contract still further to a significant degree, necessitating the closure of more depots. In recent years RKK has already had to close down many of the depots it acquired in the new Federal States after German unification. RH will achieve not inconsiderable synergy effects in distribution and storage as a result of the concentration. These will occur above all in the domestic consumer and small business user sector and should result in a profitable volume of sales being achieved in a fast-shrinking market. The 'Bundeskartellamt`, which is responsible for the assessment of the effects of the merger on the domestic consumers and small businesses, has not prohibited the concentration.
(45) Small industrial users are supplied, in contrast, on a direct-to-purchaser basis, for which, to the extent that it is actually necessary, only Duisburg-Ruhrort is of any importance as a handling depot. Large industrial users - that is, power stations - have their own railway sidings and inland waterway port facilities and are not dependent on their suppliers' infrastructure. RKK's network of sales and of storage depots does not therefore confer on RH any particular advantage when it comes to supplying industrial users.
Import trade
(46) In the import trade RKK has agents in South Africa, Colombia, the USA and Australia. In 1994 it imported 2,1 million tonnes of hard coal products into Germany (1993: 1,6 million tonnes). Of this amount, over one third came from South Africa, the other major sources being Colombia, China, Poland and the Czech Republic. These coal-producing countries stand out in terms of the price and quality of their exports to Germany. Whereas, with a combined total of 65 % South Africa, Australia and the USA account for the bulk of coal trading worldwide, it is from South Africa, Poland and Colombia that most of Germany's coal imports come (these countries' share of imports being 61 %).
(47) RKK expects its import business to shrink further in 1995 to about 1,5 million tonnes. Although contracts are concluded on an exclusivity basis for specific grades of coal, as a rule they are made for only one year. Since the proposed merger with RH was announced, RKK has lost several supply contracts with foreign producers either in whole or in part. Thus, the Chinese coal producer Shanxi Sanjia Coal & Chemistry Ltd, referring to the merger, gave notice of termination of the supply relationship as from the end of 1995 (volume: just under [ . . . ] tonnes (11)). RKK's South African suppliers, Total and Duiker, have cut their supplies (of about [ . . . ] tonnes (12)) by almost 50 % on account of the supply relationship between RH and a rival South African producer, Amcoal. RKK expects that deliveries will be stopped altogether in 1996. According to the parties, this customer-loss effect caused by the concentration will also result in some foreign producers refusing to collaborate with an importer (RKK) who has links with a domestic coal producer, in this case RAG.
(48) Even if, with imports into Germany of some two million tonnes, RKK is - like Stinnes, RH and RTE - one of the larger importers, the focal point of its trading activities is - like that of RH - German coal. Whereas only [ . . . ] million tonnes (13) of Stinne's total sales in Germany [ . . . ] (14) consisted of German coal, RKK sold [ . . . ] million tonnes (15) of German coal. This is the result of a redistribution of tasks within VEBA in 1992. Stinnes was put in charge of international coal trading in its entirety and most of the import business, inter alia through the acquisition of RKK's shareholding in Polkohle. RKK was to concentrate mainly on German coal. Since then RKK has lacked a sufficient volume of international business inasmuch as it carries on no international coal trading, apart from importing coal into Germany. Stinnes, by contrast, is a much larger player in terms both of international trade and of imports into Germany.
(49) According to a number of market participants, trade in power station coal will, in future, increasingly be characterized by direct customer-supplier relationships between power stations and foreign producers. Traders will operate in this environment only as agents handling the logistics. RAG and RKK have a substantial indirect shareholding in what used to be the leading importer of Czech coal, Brennstoff-Importgesellschaft mbH, Bayreuth, but users in Germany now also buy direct from Czech mining companies. The same applies to Polish coal, of which [ . . . ] (16) in 1995 more than 60 % is no longer imported through the previous sole importer, Polkohle. The parties estimate that direct imports by power stations already amount in the current year to 2,5 million tonnes. At the level of municipal electricity supply companies, the Wirtschaftliche Vereinigung deutscher Versorgungsbetriebe (Association of German Public Utilities), Frankfurt - which groups together more than 300 municipal undertakings - expects a considerable increase in direct imports from 1997 onwards and estimates that its own deliveries will come to 2 to 3 million tonnes a year.
(50) To sum up, through the acquisition of RKK, RAG/RH will improve its access to imported coal, but, because of the limited importance of RKK as an importer and the diminishing importance of pure trading businesses in the coal importing field, it will not have unlimited room for manoeuvre in the importation of coal. Nor can it be said that the access of competitors like Stinnes, RTE and others to sources of supply in other coal-producing countries will be more difficult as a result of the concentration.
Actual and potential competition
(51) After the concentration, Stinnes Intercoal will be almost the only competitor facing RH/RKK in the coal wholesale trade. As already indicated, the transfer of RKK's international coal business and shareholding in Polkohle to Stinnes brought about a reallocation, within the VEBA group of companies, of areas of activity between RKK and Stinnes. Although, unlike RKK, Stinnes sells mainly imported coal, there are only minor differences between the two firms' clientele owning to the fact that they both predominantly supply power stations. Against the background of this overlapping of the two firms' clientele, the stiffening of competition in the coal importation field, and the resulting differences between the two companies due to their disparate orientations, RH/RKK and Stinnes will in future compete with one another more fiercely. Although VEBA indirectly has a significant interest in the new entity RH/RKK, it has, by selling RKK to RAG, reduced rather than increased its influence over RKK. In view of RH/RKK's outstanding market position Stinnes is of particular importance being the only significant independent competitor to the new entity. This follows mainly from the considerable standing of Stinnes in the international coal trade and with the sale of improved hard coal in Germany. At present, Stinnes is the most important competitor of RH/RKK both with regard to its access to the markets for the procurement of cheaper imported coal and with regard to its access to the markets for the sale of hard coal in Germany.
(52) Besides Stinnes, traders such as RTE, Saarberg Handel and a number of smaller firms are active in Germany. However, owing to the comparatively small quantities they deal in, they are of only limited importance as rivals to RH/RKK and Stinnes.
(53) As a result of the increased importance of direct imports, potential competition on the German market will come direct from foreign producers. British and French coal producers stated, however, in answer to a Commission survey that, owing to the subsidizing of German coal, they could see no improved prospect of successful entry into the German market in the short term. Not until German coal subsides have been further reduced will the opportunities for importers improve substantially. In the medium term, between 1996 and 1998, the growth in imports will therefore still be restrained, probably not exceeding 15 to 20 %. If, as has been forecast (see paragraph 33), a sharper rise were subsequently to occur, foreign producers and foreign traders (Glencore, PhiBro, SSM, Anker) might be expected judging by the findings of the Commission survey to enter the market.
(54) The prospects for imported coal and hence the competitive structure depend essentially, however, on the future procurement behaviour of the electricity producers. The eight largest electricity-generating utilities in Germany meet between 70 and 80 % of the country's electricity requirements. The electricity producers are currently concluding only basic contracts with RAG and the other German coal producers. This enables them to conclude short-term spot transactions involving domestic or foreign coal. Even if it is not to be expected that public electricity-generating utilities will jeopardize the smooth run-down of German coal production by drastically reducing their demand for German coal, they can nevertheless at any time buy imported coal either through traders or direct from foreign producers. The acquisition by RAG/RH of RKK is therefore not considered by the vast majority of those users to be anti-competitive.
(bb) Sales to the steel industry
(55) Whereas under the 'Hüttenvertrag` hard coal products used to be supplied exclusively by German coal producers direct to steelmakers, in 1994 sales of 1,9 million tonnes of imported coke and coking coal were achieved for the first time by traders (out of total sales to steelmakers of 18,8 million tonnes). RH's share of the imports came to [ . . . ] million tonnes (17) and RKK's to [ . . . ] million tonnes (18). As a result of the concentration, RAG/RH's share of total deliveries to the steel industry increases by only about 1 % to about [75-85 %] (19). The combined share of all imports comes to [25-30 %] (20). Following the termination of RKK's coke-supply agreement with Shanxi Sanjia, the market share looks set to shrink further. For this reason and owing to a certain customer-loss effect, the concentration will likewise not lead to a hindering of effective competitive in this market.
(cc) Sales to other industrial users
(56) Taking as a basis a small market for the sale of hard coal to other industrial users, the concentration would give RH/RKK a combined market share of [35-40 %] (21). The next strongest competitor is Stinnes with [25-30 %] (22). Foremost among other industrial users are small and medium-sized undertakings in the cement, limestone and paper industries, etc. and undertakings which need hard coal to produce process heat. Altogether they purchase comparatively small volumes. For example, RH sells no more than 150 000 tonnes a year at the largest of its other-user customers. In 1994 the overall volume of this market segment came to no more than 4,7 million tonnes, down from 6 million tonnes in 1993. In the longer term Raab Karcher estimates that the market will decline to about 3 million tonnes in 2005. The market for the sale of coal to other industrial users is therefore a minor one compared with that for power station coal and the sale of coal to steelmakers.
(57) The parties expect there to be a considerable customer-loss effect in this market because small industrial users do not wish to be dependent on a single supplier. Since the proposed concentration was announced, a number of customers have already given notice that they intend to switch suppliers. As part of the RAG group, from 1996 RKK will no longer be an independent trader; the name 'Raab Karcher Kohle GmbH` will cease to be used.
(58) Unlike the electricity industry, other industrial users overwhelmingly purchase imported hard coal. Because they are geographically dispersed and buy comparatively small quantities, they are able to obtain coal only through traders who are active in Germany, and not direct from German or foreign producers. For this reason, the concentration will have a stronger impact here than in the case of other users. However, a sufficient number of alternative sources of supply are still available in the form of Stinnes (the largest German coal importer), RTE, Rheinbaun and several smaller traders.
(59) In the opinion of all market participants, sufficient quantities of imported coal are now available. The decisive competitive parameter is the price. Since, moreover, transport and transhipment facilities, especially for barges, are available to traders in Germany, RH/RKK will not have any particular competitive edge in this respect. It is to competitors' advantage, moreover, that importing is conducted chiefly on a direct-to-customer basis from the seaport. If transhipment has to be carried out in Duisburg, the new entity will be able to capitalize on the presence in Duisburg-Ruhrort of the warehousing and transhipping firm Navigate, in which RKK has a majority interest. Nevertheless, as a major port on the Rhine and Ruhr rivers, Duisburg is home to a number of other transhipping firms. In addition, the storage and transport facilities which RAG has at its disposal for the distribution of German coal are of only limited use for importing purposes.
(c) The proposed acquisition of MG PC Petrolkoks GmbH
(60) RAG proposes to acquire 100 % of the sharecapital of the German undertaking MG PC Petrolkoks GmbH, Frankfurt am Main ('MGPC`), through its subsidiary RH or, after the implementation of the concentration, RKK. MGPC, a subsidiary of the MG Carbon GmbH, is exclusively active in the sale of petrol coke and processed products of petrol coke. This is a by-product that results from the refining of crude oil. It is a non-coal product and therefore does not fall within the application of the ECSC-Treaty (see Annex I to the Treaty). Because the concentration also has no Community dimension according to the Merger Regulation it was notified to the Bundeskartellamt and was cleared on 24 November 1995.
(61) Petrol coke is used as fuel by powers plants and in the cement industry. Furthermore petrol coke is used with the production of coal coke and as an additive of coal coke in the steel industry. Petrol coke is produced by all manufacturers of crude oil and is marketed predominantly by five large trade companies (Aimcor, Koch-Carbon, Thyssen/Citco, SSM and Louisiana-Carbon). MGPC sold world-wide some two million tonnes of petrol coke (see Coal Week International of 1 August 1995), 0,38 million tonnes of it in the Community. In Germany (market volume: 2,4 million tonnes) MGPC sold [ . . . ] tonnes (23) petrol coke last year and reached a market share of about [5-10 %] (24). RH is not active in the sale of petrol coke. The proposed concentration does not lead to an addition of market shares and would have only negligible effects on the German market for the sale of petrol coke. The acquisition of MGPC by RH/RKK would neither affect the German markets for the sale of hard coal nor give any potential to the new entity RH/RKK for preventing other traders and/or users from gaining access to international sources of supply for cheaper imported hard coal.
(62) Both the Ruhrkohle group of companies and the RKK have stated that besides MGPC they have not acquired any undertakings or assets of undertakings from Metalgesellschaft or its subsidiary MG Carbon GmbH being active in the production and/or sale of coal or coke.
VI. SUMMARY
(63) Because of the changes which the market can be expected to undergo as from 1996 following the entry into force of the new subsidy regime reduction in market volume, disappearance of the trading stage in the case of German hard coal and which to conform with Community legislation must entail no distortion of competition between coal users in the Community, the proposed concentration is not likely to hinder effective competition in the largest segment, that consisting of the sale of hard coal to the electricity industry. The sizeable market share of RAG group has in the past mainly resulted from the direct supplies of price-regulated domestic hard coal to German electricity generators according to the 'Jahrhundertvertrag`. Since RAG/RH had no real scope for price setting here, its sizeable market share does not reflect real market power.
(64) After the purchasing commitments of the German electricity generators regarding domestic coal have expired in the medium to long term, the import of hard coal is expected to become very important. However, RAG/RH through the acquisition of RKK gains no potential for preventing other traders and/or users from gaining access to international sources of supply the more so since RAG's total market share is likely to decrease. This view is largely based on the assessment of the competitive potential of Stinnes with the import of hard coal. At present Stinnes is the most important competitor of RH/RKK both with regard to its access to the markets for the procurement of cheaper imported coal and with regard to its access to the markets for the sale of hard coal in Germany. RKK's strengths used to lie more in trading in German coal and above all in the supplying of domestic consumers and small business users with such coal. Both areas will become less important in future, the latter even drastically so. In view of this, too, the proposed concentration is unlikely to hinder effective competition on the markets for the sale of coal to steelmakers and other industrial users.
Since the requirements of Article 66 (2) of the ECSC Treaty are thus met, the proposed concentration may be authorized,
HAS ADOPTED THIS DECISION:
Article 1
The exercise of control over Raab Karcher Kohle GmbH by Ruhrkohle Handel GmbH is hereby authorized.
Article 2
This Decision is addressed to Ruhrkohle Handel GmbH, Jägerhofstraße 29, D-40479 Düsseldorf and to Raab Karcher Kohle GmbH, Rudolf-von-Benningsen-Foederder-Platz 1, D-45131 Essen.
Done at Brussels, 28 February 1996.
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*****
COMMISSION REGULATION (EEC) No 456/87
of 13 February 1987
amending Regulation (EEC) No 3592/86 as regards the term of validity of licences issued for common wheat of breadmaking quality under the supplementary trade mechanism
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 84 (4) and 85 (3) thereof,
Whereas Commission Regulation (EEC) No 3592/86 of 26 November 1986 derogating from Regulation (EEC) No 574/86 and amending Regulation (EEC) No 598/86 laying down certain detailed rules for the application of the supplementary trade mechanism to common wheat of breadmaking quality (1) provides that STM licences issued for the import into Spain of an additional quantity of 200 000 tonnes of common wheat of breadmaking quality are to be valid only until 31 January 1987; whereas the circumstances and in particular the weather conditions prevailing in January 1987 did not enable the operators to comply with the abovementioned time limit; whereas the term of validity of licences issued under that measure should accordingly be extended to 28 February 1987;
Whereas the measure provided for in this Regulation is in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
In Article 3 (2) of Regulation (EEC) No 3592/86, the words 'to 31 January 1987' are hereby replaced by 'to 28 February 1987'.
Article 2
This Regulation shall enter into force on the day of its publicaiton in the Official Journal of the European Communities.
It shall apply with effect from 1 February 1987.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 February 1987.
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Commission Decision
of 16 October 2002
amending Decision 97/102/EC laying down special conditions governing imports of fishery and aquaculture products originating in Russia
(notified under document number C(2002) 3842)
(Text with EEA relevance)
(2002/808/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/493/EEC of 22 July 1991 laying down the health conditions for the production and the placing on the market of fishery products(1), as last amended by Directive 97/79/EC(2), and in particular Article 11(5) thereof,
Whereas:
(1) Commission Decision 97/102/EC of 16 January 1997 laying down special conditions governing imports of fishery and aquaculture products originating in Russia(3), states that the "Committee of Fisheries of the Federation of Russia, assisted by the State Committee for Sanitary and Epidemiological Surveillance (Goskomsanepidnadzor)" is to be the competent authority in Russia for verifying and certifying compliance of fishery and aquaculture products with the requirements of Directive 91/493/EEC.
(2) Following a restructuring of the Russian administration, the competent authority for issuing health certificates for fishery products has changed to the "State Fisheries Committee of the Russian Federation", assisted by the "Department of Sanitary and Epidemiological Surveillance (Gossanepidnadzor) of the Ministry of Health (Minzdrav) of the Russian Federation". This new authority is capable of effectively verifying the application of the laws in force.
(3) The wording of Decision 97/102/EC should be aligned on the wording of more recently adopted Commission Decisions, laying down special conditions governing imports of fishery and aquaculture products originating in certain third countries.
(4) Decision 97/102/EC should therefore be amended accordingly.
(5) The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Decision 97/102/EC is modified as follows:
1. Article 1 is replaced by the following: "Article 1
The 'State Fisheries Committee of the Russian Federation', assisted by the 'Department of Sanitary and Epidemiological Surveillance (Gossanepidnadzor) of the Ministry of Health (Minzdrav) of the Russian Federation' shall be the competent authority in Russia for verifying and certifying compliance of fishery and aquaculture products with the requirements of Directive 91/493/EEC."
2. Article 2 is replaced by the following: "Article 2
1. Fishery products imported into the Community from Russia shall meet the conditions set out in paragraphs 2, 3 and 4.
2. Each consignment shall be accompanied by a numbered original health certificate, duly completed, signed, dated and comprising a single sheet in accordance with the model in Annex I.
3. The products shall come from approved establishments, factory vessels or cold stores or from registered freezer vessels listed in Annex II.
4. Except in the case of frozen fishery products in bulk and intended for the manufacture of preserved foods, all packages shall bear the word 'RUSSIA' and the approval/registration number of the establishment, factory vessel, cold store or freezer vessel of origin in indelible letters."
3. In Article 3(2) is replaced by the following: "2. Certificates must bear the name, capacity and signature of the representative of the GOSSANEPIDNADZOR and the latter's official stamp in a colour different from that of other endorsements."
4. Annex A is replaced by the Annex to this Decision.
Article 2
This Decision shall apply from 1 December 2002.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 16 October 2002.
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Commission Decision
of 31 July 2001
relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement
(Case No COMP/37.462 - Identrus)
(notified under document number C(2001) 1850)
(Only the German and English texts are authentic)
(Text with EEA relevance)
(2001/696/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Agreement on the European Economic Area,
Having regard to Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty(1), as last amended by Regulation (EC) No 1216/1999(2), and in particular Articles 2, 6 and 8 thereof,
Having regard to the application for negative clearance and the notification for exemption submitted pursuant to Articles 2 and 4 of Regulation No 17 on 6 April 1999,
Having regard to the summary of the application and notification published pursuant to Article 19(3) of Regulation No 17(3),
After consulting the Advisory Committee for Restrictive Practices and Dominant Positions,
Whereas:
I. INTRODUCTION
(1) On 6 April 1999, the Commission received an application for negative clearance or alternatively a notification for exemption, pursuant to Article 4 of Council Regulation No 17, of a set of agreements ("the Notified Agreements") concerning the establishment of a network of financial institutions which will operate as Certification Authorities(4) of trusted electronic commerce (e-commerce) transactions, initially only in the business-to-business (B2B) context.
(2) The notifying Parties are ABN-AMRO Services Company, Inc., BA Interactive Service Holdings, Inc., Barclays Electronic Commerce Holdings, Inc., Bayerische Hypo- und Vereinsbank AG, The Chase Manhattan Bank, Citibank Strategic Technology, Inc., Deutsche Bank AG and Pyramid Ventures, Inc., (the "Parties").
(3) For the purposes of establishing and managing the network, the Parties have formed a joint venture company, Identrus, LLC ("Identrus"). Identrus was established in March 1999 pursuant to a Limited Liability Company Agreement (the "LLC Agreement"), governed by US Delaware law. The initial capitalisation of Identrus was contributed equally by the Parties. Identrus will provide and manage the infrastructure required for establishing a global, interoperable network among financial institutions offering Certification Authority services (the "Identrus System").
(4) Besides the notifying Parties, Identrus will have a limited number of further shareholders (the "equity owners")(5). No single equity owner will have control over Identrus. Participation in the Identrus System will be open to qualified financial institutions around the world ("Participants"). Participants need not be equity owners of Identrus, but all equity owners are Participants. Participants will compete with each other in the relevant markets described in recitals 29 to 34.
II. PARTIES
(5) The corporate groups to which the Parties to the Notified Agreements belong may be described as follows: ABN AMRO Services Company, Inc., is an Illinois corporation. Its ultimate parent is ABN AMRO Holding NV, the Netherlands. BA Interactive Services Holding Company, Inc., is a Delaware corporation. The ultimate parent is Bank America Corporation, USA. Barclays Electronic Commerce Holdings Inc., is a Delaware corporation and an indirect subsidiary of Barclays Bank PLC, United Kingdom. Bayerische Hypo-und Vereinsbank AG ("Hypo Vereinsbank") is a financial group resulting from the merger in 1998 of Bayerische Vereinsbank AG and Bayerische Hypotheken und Wechsel Bank, AG. The Chase Manhattan Bank ("Chase") is a wholly-owned subsidiary of the Chase Manhattan Corporation, USA. Citibank, NA is a wholly-owned subsidiary of Citigroup Inc., Delaware. Deutsche Bank AG, Germany, holds its equity investment in Identrus directly. Pyramid Ventures, Inc., USA, is an indirect subsidiary of Bankers Trust New York Corporation which has now merged with Deutsche Bank AG.
III. THE REGULATORY AND POLICY CONTEXT
(6) A coherent and appropriate legislative framework is essential to develop electronic commerce within the Community. In 1997, the Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions, - a European Initiative in Electronic Commerce(6), defined the broad lines of the Commission's policy in this area. Since then, a series of directives has been adopted. They include Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures(7), which establishes rules on the legal recognition of electronic signatures and certification procedures, and Directive 2000/46/EC of the European Parliament and of the Council of 18 September 2000 on the taking up, pursuit of and prudential supervision of the business of electronic money institutions(8), which provides that electronic money may be issued only by supervised institutions meeting certain legal and financial conditions, ensuring technical security. Of central importance is Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market(9). It is designed to ensure that information society services can be freely provided throughout the Community.
(7) Secure electronic payments in particular are essential for the development of e-commerce. Today, there is no widespread, effective and secure way to make cross-border Internet payments, and the respective market operators lack confidence in the security of such payments. The present legislative framework provides consumers with some protection but it does not meet many of the concerns associated with on-line trade within the Community. Improvements are needed in technical security and in the establishment of a legislative "safety net".
(8) On technical security, the "e-Europe initiative" launched by the Commission in December 1999(10) promotes the use of new technologies, and envisages further work on identification and authentication techniques. As recognised in Directive 1999/93/EC, in particular recitals 4, 5, 10, 21 and 23, the development of electronic commerce requires, as a basic prerequisite, the existence of global Certification Authority services over open networks. The necessity for securing electronic commerce transactions is giving rise to a number of new, emergent markets for the provision of electronic trust services. Failures arising from any of the risks associated with the on-line provision of financial and authentication services could lead to significant legal and reputation risks. Such risks are not new, but their relative importance grows given the increasing reliance on technology.
IV. THE TRANSACTION
A. Purpose of the transaction
(9) The declared purpose of the Parties in setting up the Identrus System is the promotion, operation and management of an infrastructure for securing electronic commerce transactions. That infrastructure is intended to enable the Participants in the system to operate as individual and competing Certification Authorities.
Scope of the activities of Identrus
(10) The Identrus equity owners will provide the infrastructure, a data processing system designed to operate through digital networks, required to enable the financial institutions participating in the system to become Certification Authorities for the purposes of secure e-commerce transactions and offer related services to their end users.
The role of Participants in the Identrus System
(11) In the Identrus System, each Participant will issue digital certificates certifying the identity of clients engaged in electronic transactions. The Participants will operate as individual and competing certifying authorities. This means that companies engaged in financial transactions are free to choose any participating Certification Authority which is not necessarily their regular banking institution. Identrus System specifications provide interoperability in order to enable each Participant to develop its own technology independently. Furthermore, each Participant will offer its own, independently created applications, built upon the digital Certification Authority services of the Identrus System infrastructure, in competition with each of the other Participants. Each Participant is free to set the prices it charges to its end users for authentication services.
Warranty requirements
(12) Each Participant will post a deposit (collateral) to an account with an appointed financial institution, who will hold it for the benefit of relying third parties to secure warranties issued to them. The Operating Rules applying to the Identrus System establish collateral requirements applicable to each Participant, including the amount of collateral required to be posted, the frequency with which collateral requirements and Participants' obligations will be calculated and the times at which collateral would be required to be posted.
Non-discrimination
(13) The Parties' business plan foresees up to 300 banks at worldwide level participating in the Identrus System. Furthermore, all Participants, irrespective of whether they are equity owners or not, are subject to the same rules and standards of the Identrus System.
(14) The most important criteria for third parties (being in the business of providing financial services) to become equity owners in Identrus are certain capital requirements, as defined by the Basle Committee on Banking Regulations and Supervisory Practices and in compliance with certain financial rating requirements.
B. Participation in the system
(15) Interested financial institutions may join the System either as "Level One Participants", or as "Level Two Participants". Level One Participants may issue certificates to end-users and to Level Two Participants. Level Two Participants may issue certificates only directly to end users. In other respects, the two types of Participants will operate within the System in the same manner and will thus compete with each other for end-users. Any person requiring Identrus certificates is entirely free to become a customer of either a Level One or a Level Two Participant.
Level One Participants
(16) An entity will be eligible to act as a Level One Participant if it is primarily engaged in the business of providing financial services, it is subject to governmental regulation and examination, and it meets certain capital and credit requirements.
(17) Identrus as such is a root Certification Authority that issues digital certificates to its Level One Participants and thus permits the validation of the Level One Participants' identities. This allows Level One Participants to operate as Certification Authorities within the Identrus System and to issue digital certificates to their corporate customers.
(18) Vis-a-vis Level Two Participants, Level One Participants can also have the function of root Certification Authorities(11) Level One Participants must therefore be positioned to meet in a special manner the requirements of corporate customers regarding trust, reputation and confidence.
(19) The equity owners of Identrus will participate in the system as Level One Participants under the same terms and conditions as apply to any third party acting as a Level One Participants.
Level Two Participants
(20) The eligibility criteria for Level Two Participants are similar to those for Level One Participants. However, the capital and credit requirements are less stringent, enabling smaller entities to participate in the Identrus System. Provided the respective capital and credit requirements are met, each Participant is free to be either a Level One or a Level Two Participant.
(21) Level Two Participants will operate as Certification Authorities and issue certificates to their corporate customers.
C. The agreements
The LLC Agreement - corporate organisation
(22) The equity owners of Identrus have a voting right in the shareholders' meeting that is calculated on the basis of their respective percentage ownership interest in Identrus. This means that the founding equity owners will each have less than 10 % of the voting rights and that the newer equity owners will have less than 5 % each. All matters requiring an equity owner's vote, approval or consent require the consent of a majority. The failure to obtain the consent of a majority on any such vote means that the required consent has not been obtained.
(23) It follows from those provisions that the equity owners in Identrus do not exercise joint control over the company's commercial policy.
(24) Participants in the Identrus System will not be required to hold equity in Identrus; membership in the System as a Participant will be open to all entities that satisfy the membership criteria outlined in recital 14.
(25) All Participants, including the Parties, are free to join other schemes offering Certification Authority services.
Rights and obligations of equity owners and Participants (Operating Rules)
(26) The Identrus equity owners have the same rights and obligations with respect to issuing certificates as all other Participants in the System and will, like them, enter into "Participation Agreements" with Identrus to establish the terms of their operational relationship. However, all equity owners are obliged to be active Participants in the Identrus System and the LLC Agreement requires that each equity owner operates a Certification Authority, registration and risk management system under the Identrus System. Accordingly, each equity owner's investment in Identrus will not be a passive investment, as each is required to deploy its own certification services based on the Identrus System.
Pricing policy
(27) Identrus has been set up as a for-profit organisation and will establish its pricing policy accordingly. The same pricing policy will be applied to all Participants on the basis of objective and non-discriminatory criteria, irrespective of whether they are equity owners or Participants of whatever category in Identrus. Identrus plans to charge fees only to Participants in connection with the services provided (Section 6 of the Operating Rules) and not to the customers of the Participants. Participants will be free to set the prices they in turn charge their customers.
(28) The customers of Identrus will be its Participants. The Identrus System requires investments and these will be financed by three different revenue components(12) 1. "Chartering fees" will be collected as a one-time payment from the Participants, and are intended to recover Identrus's costs incurred in conducting interoperability testing and compliance certification of the infrastructures of new Participants. 2. Participants will pay "annual membership fees" with respect to the validation and warranty services once a Participant's deployment of each of these services has been developed. 3. The final revenue component of Identrus is an ad hoc fee, charged for each transaction.
V. THE RELEVANT MARKET
A. Product markets
(29) The Identrus System's trust services include:
1. services for the identification of the sender of a message over a digital network;
2. the authentication of such message via electronic signatures;
3. the validation that the keys used to create and authenticate the signature have not been revoked;
4. the provision of services to manage the risk that the signatory may claim the signature was unauthorised; and
5. the establishment and administration of rules, policies, procedures, technical specifications and agreements governing the operation of the System.
(30) By means of such services, Participants in the system should be able to provide authentication and connected electronic transactions security services to end-users. End-users may utilise the Identrus services in a variety of transactions - i.e. essentially any transaction conducted over an electronic network in which one or all entities involved in the transaction require a high degree of certainty as to the identity of the other. These transactions may be financial or commercial transactions, such as purchases and sales of goods or trading in financial instruments, potentially all over the world. The use of technical applications that enable such electronic transactions to be carried out cannot provide assurances about a user's identity. Therefore, Certification Authorities are needed to issue digital certificates that can be used to bind the specific identity of a user to a particular application.
(31) Consequently, the Notified Agreements will address at least two separate markets: 1. the market for the provision of trust services to Certification Authorities; and 2. the downstream market for the provision of trust services by Certification Authorities to end users initially in the corporate sector. In both cases, markets have not yet been sufficiently developed nor has consumer confidence been tested.
Provision of trust services to Certification Authorities
(32) Identrus will be active in the design and operation of the infrastructure for financial institutions to manage risks inherent in relying on the identity of authors and the authenticity of electronic messages. It will perform its role as a root Certification Authority and will establish a set of business rules defining the identity certificates issued by Participants and their use.
Authentication services
(33) Both Level One and Level Two Participants of the Identrus System will provide digital certificate services directly to their corporate end users enabling them to conduct commercial transactions over open electronic networks.
B. Geographic markets
(34) The services on both relevant product markets are offered on a global basis enabling international business-to-business transactions. The relevant geographic market is hence the worldwide market for the services in question.
VI. STRUCTURE OF THE MARKET
A. The Parties' position on the market
(35) As the Parties are currently not active on the relevant markets, the Parties' market shares on the described segments are non-existent.
B. Competitors of the Parties
(36) Due to the developing nature of the markets in question, the Commission does not have a comprehensive overview of the competitive situation in these markets and the competitive position of the Parties' future competitors. The Parties were, however, able to indicate a number of active and not yet active competitors, amongst them American Bankers Association (ABAecom), SWIFT, VISA and MasterCard.
(37) Furthermore, due to the rapidly increasing demand for authentication services and related profit opportunities, fostered among others by the Commission's e-Europe initiative referred to in recital 8, Identrus will be confronted by numerous potential competitors such as postal authorities, technology vendors, telecommunications carriers and industry specific initiatives. Although not all of those potentially competing systems will succeed, they will have a distinct competitive check on Identrus, if successful.
VII. THIRD-PARTY OBSERVATIONS
(38) Following the publication of the notice pursuant to Article 19(3) of Regulation No 17(13), three interested third parties submitted comments to the Commission regarding Identrus. Those comments focused, in particular, on the openness of the Identrus certification system to potential participants and standards, as well as its interoperability with other similar systems.
(39) Generally speaking, commentators addressed concerns of potential concentration processes that would result from the Identrus System. Those concerns ranged from the "formation of a technology cartel" to the "endangering of the competitive equilibrium" in the emerging market for electronic authentication services.
(40) All comments received have been carefully reviewed and it has been concluded that the concerns expressed therein had already been raised by the Commission and discussed in detail with the Parties, who had provided adequate answers, as explained in recitals 41 to 53. Therefore, those comments have not affected the Commission's positive position as regards the Notified Agreements outlined in the notice pursuant to Article 19(3) of Regulation No 17.
VIII. ARTICLE 81(1) OF THE EC TREATY AND ARTICLE 53(1) OF THE EEA AGREEMENT
A. Application of Article 81(1) of the EC Treaty and Article 53(1) of the EEA Agreement to the agreements setting up the Identrus System
(41) Through the Notified Agreements, the Parties have set up a company that is not under the joint control of its equity owners. An agreement to set up a company does not, however, in itself constitute a restriction of competition within the meaning of Article 81(1) of the EC Treaty and Article 53(1) of the EEA Agreement(14).
(42) However, in view of comments from third parties voicing concern at the risk of exclusionary effects that would result from the Identrus System, the impact of the creation of Identrus on the relevant product markets was examined and it was concluded that there were no such risks.
No risk of coordination
(43) Identrus will be operating in a newly developing and emerging market. Due to the advent of the Internet and its widespread use, in which a variety of persons control access and use, it became necessary to develop systems to prevent the transmission of unauthorised, fraudulent, or corrupted messages. New entrants into the nascent e-commerce markets are exposed to strong pressure from corporate customers to provide the necessary security for their transactions. The Parties' cooperation is limited to the establishment of the Identrus System as a common platform for the provision of root certification services. They will not extend their cooperation to the market for the provision of certification and authentication services to end-users, nor will they extend it to cooperation between the Parties in the financial or banking services sector, where they will remain independent competitors.
(44) The success of a certification system is based on its interoperability with other similar systems.
(45) The Operating Rules enable the Identrus System Participants to establish an interoperable infrastructure that makes domestic and cross-border electronic commerce applications possible. As regards those applications, however, each Participant will develop them independently.
Open access to the system
(46) Moreover, reputation and warranty policies are important in providing a trust product such as authentication services. In this context, the most important criteria for third parties to become equity owners in Identrus are objective and by using them, Identrus will not be required to assess and identify the quality of potential Participants. The Notified Agreements are therefore unlikely to affect the competitive position of third parties, as access to Identrus infrastructures is open to all, provided they meet the objective criteria referred to in recital 14. Identrus has no incentive to exclude potential Participants, as it is inherent in the Identrus System to attract as many Participants as possible. Identrus's revenues increase with the number of electronic commerce transactions covered by the Identrus System.
(47) End-users will benefit from the existence of the additional system Identrus will create. The wider benefits of the system to the free movement of goods in the internal market ought not to be underestimated. The authentication system will be used in a large variety of circumstances, which will in turn create other products and services increasing competitiveness, levels of trust, security and quality demanded by the evolving market.
Competitive checks
(48) As indicated in recital 7, security of financial transactions over the Internet is one of the main concerns affecting the widespread development of electronic commerce. A large number of projects aimed at the development of Internet applications to address such concerns have been launched. A number of commercial competitors have already announced the setting up of certification systems similar to the one intended by Identrus.
(49) Among Identrus's future main competitors the Parties identify the American Bankers Association (ABAecom), which has offered global Certification Authority services since the beginning of 1999, SWIFT (the international financial transactions services company), VISA and MasterCard. Identrus faces competition not only from the financial industry ventures but also from postal authorities, technology vendors, telecommunications carriers and industry specific vertical initiatives.
(50) Financial industry ventures, postal authorities and telecommunications carriers for example have, on the basis of requirements for acting on their traditional markets, already made a certain part of the irreversible investments necessary for entry into the markets in question. Their ability to enter these markets must therefore be assessed as relatively high.
No exclusivity
(51) Identrus Participants are free to participate in any other equivalent scheme, if they choose to do so. The decision would be based on internal questions to be answered solely by the Participant. Thus, participation is not exclusionary. The choice provided to Participants will potentially further foster competition between competing authentication systems.
No adverse effects on input markets
(52) The Notified Agreements are unlikely to affect markets for inputs that are necessary for companies operating in the relevant markets. As a matter of fact, Identrus will not engage in software development, it will only set up specifications which will be given free of costs to Participants and software providers. There is no exclusivity as to which software will be used as root software and which software Participants can choose. In practice, many different vendors could be used by the Participants, provided those vendors meet the Identrus standards that have to be developed. Participants can change vendors if they so wish.
Conclusion
(53) The creation of the Identrus System entails no foreclosure risk, as the joint venture will face competitive checks from competing systems, and Participants are free to join other such systems. There are in addition no adverse effects on input markets. Therefore, the agreements to establish Identrus do not fall within the terms of Article 81(1) of the EC Treaty and Article 53(1) of the EEA Agreement.
B. Application of Article 81(1) of the EC Treaty and Article 53(1) of the EEA Agreement to the clause concerning the general prohibition of assignment of membership interests
(54) Article 9.1 of the LLC Agreement enshrines a general prohibition of assignment of membership interests. Such interests must first be offered to Identrus itself or to other members before being offered to third parties (see Article 9.3 of the LLC Agreement). Although equity owners have the right to set the rules for the functioning of the system, no individual member can dominate the system as the maximum vote is limited to 15 %.
(55) To the extent that this clause is a restriction of competition on the market for the exchange of equity, the restriction is not an appreciable one.
C. Conclusions on the applicability of Article 81(1) of the EC Treaty and Article 53(1) of the EEA Agreement
(56) Neither the Notified Agreements nor the clause concerning the general prohibition of assignment of membership interests has the effect to preventing, restricting or distorting competition within the relevant market defined in recitals 29 to 34. Therefore, the Agreements fall outside the scope of Article 81(1) of the EC Treaty and Article 53(1) of the EEA Agreement,
HAS ADOPTED THIS DECISION:
Article 1
On the basis of the facts in its possession, the Commission has no grounds for action under Article 81(1) of the EC Treaty and Article 53(1) of the EEA Agreement in respect of the Notified Agreements relating to the establishment of the Identrus System.
Article 2
This Decision is addressed to:
1. ABN AMRO Services Company, Inc. 200 West Monroe Street Chicago IL 60606 USA
2. BA interactive Services Holding Company, Inc. 425 First Street San Francisco CA 94105 USA
3. Barclays Electronic Commerce Holdings, Inc. 222 Broadway New York NY 10038 USA
4. Bayerische Hypo- und Vereinsbank AG Am Tucherpark 16 D - 80538 München
5. The Chase Manhattan Bank 270 Park Avenue - 44th Floor New York NY 10017 USA
6. Citibank Strategic Technology 153 East 53rd Street New York NY 10043 USA
7. Deutsche Bank AG Taunusanlage 12 D - 60325 Frankfurt a. M
8. Pyramid Ventures, Inc. 130 Liberty Street New York NY 10006 USA
9. Identrus LLC 140 East 45th Street - 16th Floor New York NY 10017 USA.
Done at Brussels, 31 July 2001.
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Commission Regulation (EC) No 309/2003
of 18 February 2003
setting export refunds on products processed from fruit and vegetables other than those granted for added sugar
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 market in products processed from fruit and vegetables(1), as last amended by Regulation (EC) No 453/2002(2), and in particular Article 16(3),
Whereas:
(1) Commission Regulation (EC) No 1429/95(3), as last amended by Regulation (EC) No 1176/2002(4), sets implementing rules for export refunds on products processed from fruit and vegetables.
(2) Article 16(1) of Regulation (EC) No 2201/96 states that, to the extent necessary to permit exports in economically significant quantities of the products referred to in Article 1(1)(a) of that Regulation, on the basis of prices for those products in international trade, the difference between those prices and prices in the Community may be covered by export refunds; Article 18(4) of Regulation (EC) No 2201/96 provides that, if the refund on sugar incorporated into the products listed in Article 1(1) is insufficient to allow export of the products, the refund fixed in accordance with Article 17 is to be applicable to those products.
(3) Article 17(2) of Regulation (EC) No 2201/96 states that refunds must be fixed with regard to the existing situation and outlook for prices for products processed from fruit and vegetables on the Community market and supply availability, on the one hand, and prices in international trade on the other hand. Account must also be taken of the costs indicated at (b) in that paragraph and of the economic aspect of the envisaged exports.
(4) Refunds are, pursuant to Article 16(1) of Regulation (EC) No 2201/96, to be set with due regard to the limits resulting from agreements concluded in accordance with Article 300 of the Treaty.
(5) Article 17(3) of Regulation (EC) No 2201/96 states that prices on the Community market are to be determined taking account of those most favourable from the exportation standpoint; whereas international trade prices are to be determined account taken of the prices indicated in the second subparagraph of that paragraph.
(6) The international trade situation or the special requirements of certain markets may make it necessary to vary the refund on a given product depending on the destination of that product.
(7) Economically significant exports can be made at the present time of provisionally preserved cherries, peeled tomatoes, preserved cherries, prepared hazelnuts and some orange juices.
(8) Application of the rules mentioned above to the present and forecast market situation, in particular to prices of products processed from fruit and vegetables in the Community and in international trade, leads to the refund rates set in the Annex hereto.
(9) Pursuant to Article 16(2) of Regulation (EC) No 2201/96, the most efficient possible use should be made of the resources available without creating discrimination between traders. Therefore, care should be taken not to disturb the trade flows previously induced by the refund arrangements.
(10) Commission Regulation (EEC) No 3846/87(5), as last amended by Regulation (EC) No 118/2003(6), establishes an agricultural product nomenclature for export refunds.
(11) Commission Regulation (EC) No 1291/2000(7), as amended by Regulation (EC) No 2299/2001(8), lays down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products.
(12) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Products Processed from Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
1. The export refund rates in the processed fruit and vegetables sector shall be those fixed in the Annex hereto.
2. Quantities for which licences are issued in the context of food aid, as referred to in Article 16 of Regulation (EC) No 1291/2000 shall not count against the eligible quantities referred to in the first paragraph.
Article 2
This Regulation shall enter into force on 22 February 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 February 2003.
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COMMISSION REGULATION (EC) No 699/2006
of 5 May 2006
amending Annex I to Council Regulation (EEC) No 2092/91 as regards conditions of access for poultry to open-air runs
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2092/91 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs (1), and in particular the second indent of Article 13 thereof,
Whereas:
(1)
According to the principles of organic farming, livestock should have access to open-air or grazing areas, whenever weather conditions permit.
(2)
Current rules on organic production provide an exception to this principle for mammals where Community or national requirements relating to specific animal health problems prevent access of these animals to outdoor areas. However, no exception is provided for organic poultry.
(3)
In the light of current concerns about the spread of avian influenza, it is necessary to take account of precautionary measures which may require poultry to remain indoors. For the sake of coherence and clarity and in order to guarantee the continuity of the organic poultry production system, it is also necessary to allow producers to keep their poultry indoors without losing organic status, where restrictions, including veterinary restrictions, which are taken on the basis of Community law for the purpose of protecting public or animal health, prevent poultry from having access to the open-air or to grazing areas.
(4)
Restricting access to outdoor runs for poultry used to permanent outdoor access may compromise their welfare. In order to reduce the negative impact of such measures the animals shall have permanent access to sufficient quantities of roughage and suitable material allowing each bird to take up roughage, scratch and dust bath according to its needs.
(5)
Regulation (EEC) No 2092/91 should therefore be amended accordingly.
(6)
There is an urgent need for the measures provided for in this Regulation, considering that restrictions are already being applied in certain Member States. This Regulation should therefore enter into force on the day of its publication in the Official Journal of the European Union.
(7)
The measures provided for in this Regulation are in accordance with the opinion of the Committee set up by Article 14 of Regulation (EEC) No 2092/91,
HAS ADOPTED THIS REGULATION:
Article 1
In part B of Annex I to Regulation (EEC) No 2092/91 the following point 8.4.7 is added:
‘8.4.7.
Notwithstanding the provisions laid down in points 8.4.2 and 8.4.5, poultry may be kept indoors where restrictions, including veterinary restrictions, which are taken on the basis of Community law for the purpose of protecting public or animal health, prevent or restrict access of poultry to open-air runs.
Where poultry are kept indoors, they shall permanently have access to sufficient quantities of roughage and suitable material in order to meet the poultry’s ethological needs.
The Commission shall examine the application of this paragraph, in particular as regards animal welfare requirements, by 15 October 2006.’
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 May 2006.
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COMMISSION REGULATION (EEC) No 1393/93 of 4 June 1993 re-establishing the levying of customs duties on products falling within CN code 6403, originating in India, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3831/90 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3831/90 of 20 December 1990 applying generalized tariff preferences for 1991 in respect of certain industrial products originating in developing countries (1), extended for 1993 by Regulation (EEC) No 3917/92 (2), and in particular Article 9 thereof,
Whereas, pursuant to Articles 1 and 6 of Regulation (EEC) No 3831/90, suspension of customs duties shall be accorded for 1993 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 ceilings fixed in column 6 of Annex I;
Whereas, as provided for in Article 7 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 products falling within CN code 6403, originating in India, the individual ceiling was fixed at ECU 4 410 000; whereas on 3 February 1993, imports of these products into the Community originating in India reached the ceiling in question after being charged thereagainst; whereas, it is appropriate to re-establish the levying of customs duties in respect of the products in question against India,
HAS ADOPTED THIS REGULATION:
Article 1
As from 11 June 1993, the levying of customs duties, suspended for 1993 pursuant to Council Regulation (EEC) No 3831/90, shall be re-established on imports into the Community of the following products, originating in India:
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, 4 June 1993.
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COMMISSION REGULATION (EC) No 1474/2006
of 5 October 2006
amending Regulations (EC) No 2771/1999 and (EC) No 1898/2005 as regards the entry into storage of intervention butter put on sale
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products (1), and in particular Article 10 thereof,
Whereas:
(1)
Article 21 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 (2) lays down that intervention butter placed on sale must have entered into storage before 1 January 2005.
(2)
Article 1(a) of 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 on the Community market (3) lays down that intervention butter bought in under Article 6(2) of Regulation (EC) No 1255/1999 to be sold at reduced prices must have been taken into storage before 1 January 2005.
(3)
Given the situation on the butter market and the quantities of butter in intervention storage it is appropriate that butter in storage before 1 January 2006 should be available for sale.
(4)
Regulations (EC) No 2771/1999 and (EC) No 1898/2005 should therefore be amended accordingly.
(5)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
In Article 21 of Regulation (EC) No 2771/1999, the date ‘1 January 2005’ is replaced by the date ‘1 January 2006’.
Article 2
In Article 1(a) of Regulation (EC) No 1898/2005, the date ‘1 January 2005’ is replaced by the date ‘1 January 2006’.
Article 3
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 October 2006.
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COMMISSION REGULATION (EC) No 999/96 of 4 June 1996 amending Regulation (EEC) No 3886/92 laying down detailed rules for the application of the premium schemes provided for in the beef and veal sector in respect of the processing premium
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organization of the market in beef and veal (1), as last amended by Regulation (EC) No 894/96 (2), and in particular Article 4 (i) (4) thereof,
Whereas application of the processing premium introduced by Article 4 (i) of Regulation (EEC) No 805/68, pursuant to Commission Regulation (EEC) No 3886/92 (3), as last amended by Regulation (EC) No 1850/95 (4), may result in unfair treatment as regards the penalties applicable where the number of animals for which an application is made does not tally with the number of eligible animals presented for processing; whereas Article 49 of Regulation (EEC) No 3886/92 should therefore be amended;
Whereas, in order to avoid economic repercussions for the operators concerned, the measure should apply from the actual date of application of the processing premium;
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
Article 49 (3) of Regulation (EEC) No 3886/92 is hereby replaced by the following:
'3. Where it is found that the animals presented for processing do not correspond to those referred to in paragraph 1, the premium shall be paid for the number of eligible animals presented less the number of ineligible animals presented.`
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply from 20 April 1996.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 June 1996.
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COMMISSION REGULATION (EC) No 345/2009
of 20 April 2009
establishing a prohibition of fishing for turbot in the Black Sea by vessels flying the flag of Bulgaria
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 1139/2008 of 10 November 2008 fixing the fishing opportunities and the conditions relating thereto for certain fish stocks applicable in the Black Sea for 2009 (3), lays down quotas for 2009.
(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 2009.
(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 2009 shall be deemed to be exhausted from the date set out in that Annex.
Article 2
Prohibitions
Fishing for the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein shall be prohibited from the date set out in that Annex. It shall be prohibited to retain on board, tranship or land such stock caught by those vessels after that date.
Article 3
Entry into force
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 April 2009.
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Commission Decision
of 31 July 2002
conferring management of aid on implementing agencies for pre-accession measures in agriculture and rural development Romania in the pre-accession period
(2002/638/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1266/1999 of 21 June 1999 on coordinating aid to the applicant countries in the framework of the pre-accession strategy and amending Regulation (EEC) No 3906/89(1), and in particular Article 12(2) thereof,
Whereas:
(1) In accordance with Article 4(5) of Regulation (EC) No 1268/1999 of 21 June 1999 on Community support for pre-accession measures for agriculture and rural development in the Applicant Countries of central and eastern Europe in the pre-accession period(2), as last amended by Regulation (EC) No 2500/2001(3), a Programme for Agriculture and Rural Development was approved by Commission Decision C(2000) 3742 final on 12 December 2000, and amended by Commission Decision H/2002/1936, on 11 July 2002 for Romania.
(2) The Romanian government and the Commission, acting on behalf of the European Community, signed on 2 February 2001 the Multiannual Financing Agreement (hereinafter MAFA) laying down the technical, legal and administrative framework for the execution of the Sapard Programme.
(3) Regulation (EC) No 1266/1999 provides that the ex ante approval requirement referred to in Article 12(1) of Regulation (EC) No 1266/1999 may be waived on the basis of a case-by-case analysis of the national and sectorial programme/project management capacity, financial control procedures and structures regarding public finance; Commission Regulation (EC) No 2222/2000(4), as amended by Regulation (EC) No 2252/2001(5), provides for detailed rules for the carrying out of the said analysis.
(4) The competent authority of Romania has appointed the Sapard Agency, public institution with legal status, in the subordination of the Ministry of Agriculture, Food and Forestry. It will be responsible for implementing the following measures: "Processing and Marketing of agricultural and fishery products", "Development and improvement of rural infrastructure" and "Technical assistance" as defined in the Programme for Agriculture and Rural Development that was approved by Commission Decision C(2000) 3742 final on 12 December 2000, and amended by Commission Decision H/2002/1936 on 11 July 2002; whereas the Ministry of Public Finance, National Fund has been established for the financial functions it is due to perform in the framework of the implementation of the Sapard programme.
(5) Pursuant to Regulation (EC) No 1266/1999 and Regulation (EC) No 2222/2000, the Commission analysed the national and sectorial programme/project management capacity, financial control procedures and structures regarding public finance and considers that, for the implementation of the aforementioned measures, Romania complies with the provisions of Articles 4 to 6 and of the Annex to Regulation (EC) No 2222/2000 and with the minimum conditions set out in the Annex to Regulation (EC) No 1266/1999.
(6) In particular, the Sapard Agency has implemented the following key accreditation criteria satisfactorily: written procedures, segregation of duties, pre-project approval and pre-payment checks, payment procedures, accounting procedures, computer security, internal audit, and, where appropriate, public procurement provisions.
(7) On 11 July 2002 the Romanian authorities provided the revised list of eligible expenditure in conformity with Article 4(1), Section B of the MAFA, and this did not give rise to objections by the Commission.
(8) The Ministry of Public Finance, National Fund has implemented the following criteria satisfactorily for the financial functions it is due to perform in the framework of the implementation of the Sapard programme for Romania: audit trail, treasury management, receipt of funds, disbursements to the Sapard Agency, computer security and internal audit.
(9) It is therefore appropriate to waive the ex ante approval requirement referred to in Article 12(1) of Regulation (EC) No 1266/1999 and to confer on the Sapard Agency, and on the Ministry of Public Finance, National Fund in Romania, the management of aid on a decentralised basis.
(10) However, since the verifications carried out by the Commission are based on an operational, but not operating system, it is therefore appropriate to confer the management of the Sapard Programme on the Sapard Agency, and on the Ministry of Public Finance, National Fund, according to Article 3(2) of Regulation (EC) No 2222/2000, on a provisional basis.
(11) Full conferral of management of the Sapard Programme is only envisaged after further verifications, in order to ensure that the system operates satisfactorily, have been carried out and after any recommendations the Commission may issue, with regard to the conferral of management of aid on the Sapard Agency, and on the Ministry of Public Finance, National Fund, have been implemented.
(12) In order to take account of the requirements of Article 8(1)(b), Section A of the MAFA, expenditure pursuant to this Decision shall be eligible for Community co-finance only if incurred by beneficiaries from the date of this Decision or, if later, the date of the instrument making them a beneficiary for the project in question, except for feasibility and related studies, and for technical assistance, where this date shall be 12 December 2000, provided in all cases it is not paid by the Sapard Agency prior to the date of this Decision,
HAS DECIDED AS FOLLOWS:
Article 1
The requirement of ex ante approval by the Commission of project selection and contracting by Romania is hereby waived.
Article 2
Management of the Sapard Programme is conferred on a provisional basis to:
1. the Sapard Agency under the Ministry of Agriculture, Food and Forestry of Romania, Negustori Street 1 B, Sector 2, RO Bucharest 2, for the implementation of measures "Processing and marketing of agricultural and fishery products", "Development and improvement of rural infrastructure" and "Technical assistance" as defined in the Programme for Agriculture and Rural Development that was approved by Commission Decision C(2000) 3742 final on 12 December 2000, and amended by Commission Decision H/2002/1936, adopted on 11 July 2002; and
2. the Ministry of Public Finance, National Fund, Apolodor Street 17, Sector 5, RO 70663 Bucharest, for the financial functions it is due to perform in the framework of the implementation of the Sapard programme for Romania.
Article 3
Expenditure pursuant to this Decision shall be eligible for Community co-finance only if incurred by beneficiaries from the date of this Decision or, if later, the date of the instrument making them a beneficiary for the project in question, except for feasibility and related studies, and for technical assistance, where this date shall be 12 December 2000, provided in all cases it is not paid by the Sapard Agency prior to the date of this Decision.
Done at Brussels, 31 July 2002.
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COMMISSION REGULATION (EC) No 291/2009
of 8 April 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 9 April 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 April 2009.
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COMMISSION REGULATION (EC) No 1470/98 of 1 July 1998 extending for an additional trial period the cumulative recovery system in the rice sector introduced by Regulation (EC) No 703/97
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 amended by Regulation (EC) No 192/98 (2), and in particular Articles 11(4) and 21 thereof,
Whereas Commission Regulation (EC) No 703/97 (3), as amended by Regulation (EC) No 1403/97 (4), introduces a cumulative recovery system (CRS) for determining certain import duties on husked rice for a trial period from 1 July 1997 to 30 June 1998; whereas, in view of the lack of results for the two trial periods laid down for that system, it cannot be assessed; whereas, as a result, the CRS should be extended for an additional trial period from the entry into force of this Regulation to 31 December 1998;
Whereas the Management Committee for Cereals has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
1. The cumulative recovery system introduced by Regulation (EC) No 703/97 for an initial trial period from 1 July 1997 to 30 June 1998 is hereby extended for an additional trial period from the entry into force of this Regulation to 31 December 1998.
Regulation (EC) No 703/97 shall apply, subject to the provisions of this Regulation.
2. The registration of importers carried out in accordance with Article 2(2) of Regulation (EC) No 703/97 shall remain applicable throughout the additional trial period.
3. When making their first application for an import licence for the additional trial period, importers may, in respect of the whole of the period in question and all the consignments they intend to import irrevocably:
- withdraw the declaration made in accordance with Article 2(2)(c) of Regulation (EC) No 703/97,
- declare whether or not they opt for the adjustment of their import duties in accordance with Article 10(2) of Regulation (EC) No 703/97.
4. References in Regulation (EC) No 703/97:
- to the trial period,
- to the first half or second half of the trial period,
- to the first and/or second half of the trial period,
shall be construed as references to the additional trial period.
5. The Annex to Regulation (EC) No 703/97 is replaced by the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 1 July 1998.
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COUNCIL REGULATION (EEC) No 1227/89 of 3 May 1989 fixing the production target price, the production aid and the intervention price for olive oil for the 1989/90 marketing year
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 43 thereof,
Having regard to the Act of Accession of Spain and Portugal, and in particular Articles 89 (1), 92 (3), 234 (2) and 290 (3) thereof,
Having regard to Council Regulation No 136/66/EEC of 22 September 1966 on the common organization of the market in oils and fats (1), as last amended by Regulation (EEC) No 1225/89 (2), and in particular Articles 4 (4) and 5 (1) thereof,
Having regard to the proposal from the Commission (3),
Having regard to the opinion of the European Parliament (4),
Having regard to the opinion of the Economic and Social Committee (5),
Whereas, when the production target price for olive oil is fixed, account should be taken of the objectives of the common agricultural policy and of the contribution which the Community desires to make to the harmonious development of world trade; whereas the objectives of the common agricultural policy are, in particular, to ensure a fair standard of living for the agricultural community, to ensure that supplies are available and that they reach consumers at reasonable prices;
Whereas the target price referred to above must be fixed in accordance with the criteria laid down in Articles 4 and 6 of Regulation No 136/66/EEC;
Whereas, if the producer is to receive a fair income, production aid must be fixed in the light of the impact which the consumption aid has on part only of the production;
Whereas the intervention price must be fixed in accordance with the criteria laid down in Article 8 of Regulation No 136/66/EEC;
Whereas, as a result of the application of Articles 68 and 236 of the Act of Accession, the intervention price for olive oil in Spain and Portugal differs from the common prices; whereas, after the adjustment of the ´acquis communautaire' with relation to vegetable oils and fats, the detailed rules for the alignment of intervention prices for olive oil applicable in Spain and Portugal are those set out in the second indents
of Article 92 (2) and of Article 290 (2) of the Act of Accession;
Whereas Articles 95 and 293 of the Act of Accession provide for the granting of Community aid for the production of olive oil in Spain and in Portugal; whereas, pursuant to Articles 79 and 246 of that Act, the amounts of the Community aid in Spain and Portugal should be aligned on the common aid at the beginning of the marketing year; whereas the rules on this alignment result in the Spanish and Portuguese aid rates shown below;
Whereas the production target price and the intervention price are fixed for a specific standard quality; whereas the reasons which led to the determination of the standard quality for the 1981/82 marketing year are still valid; whereas that standard quality should therefore remain unchanged;
Whereas, under Article 5 (4) of Regulation No 136/66/EEC, a percentage of the production earmarked for producers may be allocated to the financing of regional measures to improve the quality of olive oil production; whereas such measures are necessary in certain production regions; whereas some of the said aid should therefore be allocated to the financing of such measures;
Whereas, in accordance with Article 20 (d) (1) of Regulation No 136/66/EEC the percentage of the production aid which may be withheld for recognized organizations of olive oil producers or associations thereof should be so fixed that the resulting amount helps to finance the expenditure incurred in the work done pursuant to Articles 5 (3) and 20c of that Regulation; whereas that percentage should be set at a level which enables foreseeable expenditure in the 1989/90 marketing year to be covered,
HAS ADOPTED THIS REGULATION:
Article 1 For the 1989/90 marketing year, the production target price, the production aid and the intervention price for olive oil shall be as follows:
(a) production target price: ECU 322,56 per 100 kg;
(b) production aid:
- for Spain:ECU 33,36 per 100 kg,
- for Portugal:ECU 28,38 per 100 kg,
- for the Community of Ten:ECU 70,95 per 100 kg;
(c) production aid for growers whose average production is less than 400 kilograms of olive oil per year:
- for Spain:ECU 36,91 per 100 kg,
- for Portugal:ECU 31,93 per 100 kg,
- for the Community of Ten:ECU 81,76 per 100 kg;
(d) intervention price:
- for Spain:ECU 165,21 per 100 kg,
- for Portugal:ECU 205,87 per 100 kg,
- for the Community of Ten:ECU 216,24 per 100 kg.
Article 2 The prices specified in Article 1 shall relate to ordinary virgin olive oil with a free fatty acid content, expressed as oleic acid, of 3,3 grams per 100 grams.
Article 3 For the 1989/90 marketing year, 2 % of the production aid earmarked for olive oil producers shall be allocated to the financing of specific measures to improve the quality of olive oil in each producer Member State.
Article 4 For the 1989/90 marketing year, the percentage of the production aid which may be withheld pursuant to Article 20d (1) of Regulation No 136/66/EEC for organizations of olive oil producers or associations thereof recognized under the said Regulation shall be 1,5 %.
Article 5 This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply from 1 November 1989.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 May 1989.
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*****
COMMISSION REGULATION (EEC) No 63/87
of 9 January 1987
amending for the seventh time Regulation (EEC) No 997/81 laying down detailed rules for the description and presentation of wines and grape musts
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 337/79 of 5 February 1979 on the common organization of the market in wine (1), as last amended by Regulation (EEC) No 3805/85 (2), and in particular Article 54 (5) thereof,
Whereas Council Regulation (EEC) No 355/79 (3), as last amended by Regulation (EEC) No 1625/86 (4), lays down general rules for the description and presentation of wines and grape musts;
Whereas Commission Regulation (EEC) No 997/81 (5), as last amended by Regulation (EEC) No 418/86 (6), lays down detailed rules for the description and presentation of wines and grape musts;
Whereas it has become apparent that table wines made from a blend of wines originating in various Member States of the European Communities sometimes have a label that may cause confusion in the mind of the consumer as regards the true origin of such wines, in particular where the overall impression given by the label recalls a product originating in a particular Member State; whereas, to prevent such confusion, a minimum height should be stipulated for the lettering on the labelling on prepackaging of the words laid down to indicate that the table wines in question are a 'blend of wines from different countries of the European Community';
Whereas, to take account of practice in Greece, the inclusion of certain additional traditional terms used to denote certain quality wines psr and of certain terms used to denote the name of the vineyard holding where the wine in question was obtained should be provided for by aligning the rules on the use of such terms on those already accepted for other Member States; whereas, however, in order to improve the understanding of these terms, it is desirable that such terms in Greek should be able to be supplemented by a translation into another language;
Whereas Regulation (EEC) No 355/79 makes the indication of actual alcoholic strength on wine labels compulsory as from 1 May 1988; whereas, in order to give the bottlers responsible for the labelling of wines a greater degree of flexibility as from that date, it is desirable to increase slightly the tolerances for the indication of the alcoholic strength;
Whereas experience has shown that certain consumers do not consider indications on the type of wine that refer to its residual sugar content, such as 'dry', 'medium dry', 'medium sweet' and 'sweet' to be sufficiently explicit; whereas provision should be made for indicating the residual sugar content of the wine as determined by analysis to be indicated on the label;
Whereas it is customary in Germany to indicate the density of grape musts in 'Oechsle degrees'; whereas, in the light of this traditional practice, no further alignment with the Community system for measuring the density of grape must is possible for the moment; whereas the transitional period that expired on 31 August 1986, during which Germany could provide, in respect of grape must put into circulation on its territory, that the density should be expressed in Oechsle degrees, should therefore be extended for a further five years;
Whereas Article 16 (4) of Council Regulation (EEC) No 338/79 (7), as last amended by Regulation (EEC) No 3805/85, lays down that the name of a specified region may be used to describe a wine only if it is a quality wine psr; whereas the term 'Madera' is synonymous with 'vinho de Madeira' which describes, in accordance with the said provision, a quality wine psr; whereas this results in a ban on putting into circulation in the Community imported wines described by the term 'Madera'; whereas, to avoid cases of hardship caused by too abrupt a change in the rules in force until now, provision should be made for wines from 'Madera County' originating in the United States of America to be put into circulation during a transitional period ending on 31 December 1988 under the name 'Madera County - California';
Whereas certain producer Member States and Austria have supplemented their provisions on the use of terms relating to the type of wine and its method of production and concerning information on the natural wine-growing conditions in which the wine originated; whereas provision should therefore be made under Regulation (EEC) No 997/81 for the terms that may be used to indicate the abovementioned information on the labelling of wines;
Whereas certain Member States have accepted that wine may be prepackaged in containers such as metal cans, cardboard boxes or in the type of container known as 'bag-in-box' on which has been printed directly the information required for the labelling; whereas the manufacture of such prepackaging is costly and large batches are ordered; whereas, to avoid too large quantities of such prepackaging becoming unusable because certain information printed on that prepackaging is no longer compatible with Community rules as a result of those rules being amended, provision should be made for a transitional period of two years during which wine may continue to be put up in such prepackaging;
Whereas, following the recent amendments of their provisions, Australia, Austria, Bulgaria and the United States of
America have requested that Annexes I, II and IV of Regulation (EEC) No 997/81 be adapted; whereas it seems justified to accede to these requests; whereas a detailed examination of the use of the names and synonyms of certain vine varieties to describe wines has led to the conclusion that Annex IV of the said Regulation should, in addition, be corrected, in particular by deleting certain of these names and synonyms thus preventing the consumer from being mislead as regards the geographical origin and the nature of the wine in question;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 997/81 is hereby amended as follows:
1. Article 1a (1) is replaced by the following:
'1. The terms referred to in Article 2 (1) (d) (ii) and (iii) of Regulation (EEC) No 355/79 shall be indicated on the labels of prepackaging in lettering of the same type, the smallest letters being at least:
- 3 mm high, if the nominal volume of the container is less than 20 cl,
- 4 mm high, if the nominal volume of the container is 20 cl or more but not more than 100 cl,
- 6 mm high, if the nominal volume of the container is more than 100 cl.'
2. In Article 2 (3):
(a) the following is added to the first subparagraph:
'(g) for Greek quality wines psr:
- "Apó dialechtoýs ampelónes", "grand cru"
- "Epilogí í epilegménos", "réserve"
- "Eidikí epilogí í eidiká epilegménos", "grande réserve";'
(b) the second subparagraph is replaced by the following:
"The terms referred to in (a), (b), (c), (e), (f), and (g) above shall appear in characters which are the same size as or smaller than those used for indicating the specified region."
3. The following terms are added to the fifth indent of Article 5 (1):
'vlla, ktíma, archontikáo'
4. Article 8 is amended as follows:
(a) Paragraphs 1 and 2 are replaced by the following:
'1. The information regarding actual alcoholic strength referred to in Articles 2 (1) (g), 12 (1) (f), 22 (1) (b), 27 (1) (e) and 28 (1) (c) of Regulation (EEC) No 355/79 shall be given as a unit or half-unit percentage by volume.
Without prejudice to the tolerances provided for in the reference method of analysis used pursuant to Commission Regulation (EEC) No 1108/82 (1), the actual alcoholic strength indicated may not be more than 0,5 % vol more or less than the strength determined by analysis.
However, when quality wines psr stored in bottles for more than three years are inspected, the competent departments may allow this tolerance to be increased by 0,3 % vol.
The figure expressing the actual alcoholic strength shall be followed by the symbol "% vol" and may be preceded by the words "actual alcoholic strength" or "actual alcohol" or by the abbreviation "alc.". It shall be indicated on the label in characters at least 3 mm high.
2. The analytical data other than the actual alcoholic strength which may be indicated on the labels of wines and grape musts referred to in Articles 2 (2) (f), 12 (2) (g), 27 (2) (d) and 28 (2) (f) of Regulation (EEC) No 355/79 shall be the residual sugar content determined by analysis. It shall be indicated in grams per litre.
However, for the description of products bottled on their territory, Member States may permit the residual sugar content to be supplemented or replaced by the potential alcoholic strength by adding to the actual alcoholic strength shown in accordance with paragraph 1 the figure corresponding to the potential alcoholic strength, preceded by the symbol "+" and followed by the symbol "% vol". It shall be indicated as a unit or tenth-unit percentage by volume. The potenial alcoholic strength indicated may not be higher than the strength determined by analysis. It may be lower than the strength determined by analysis by 0,2 % vol at the most.
(1) OJ No L 133, 14. 5. 1982, p. 1.'
(b) Paragraph 3 is deleted.
(c) The date "31 August 1986" in paragraph 4 (a) is replaced by "31 August 1991". 5. The following paragraph 3 is added to Article 10:
'3. During a transitional period ending on 31 December 1988, wines imported from the United States of America and obtained from grapes harvested in "Madera County" may be described by the name of that geographical unit. During this period this term must, in addition, be accompanied by the word "California".'
6. Article 13 is amended as follows:
(a) The following is added to paragraph 1 (d):
'(iv) with respect to all table wine by the following terms:
- "frésko krasí", "vin jeune",
- "néo krasí", "vin nouveau".'
(b) The following is added to paragraph 1 after point (e):
'(f) the description of a Luxembourg table wine may be supplemented by the term "blanc de blancs".'
(c) The following terms are added to paragraph 3 (a) after 'Badisch Rotgold':
- "Moseltaler",
- "Riesling-Hochgewaechs".'
(d) The following terms and subparagraph are added after 'vivace' in paragraph 3 (c):
'- "vino novello",
- "vin nouveau",
- "dunkel".'
The terms 'Kretzer' and 'dunkel' may be used only for certain quality wines psr originating in the province of Bolzano. The term 'vin nouveau' may be used only for quality wines psr originating in the region of Valle d'Aosta.
(e) The following is added to paragraph 3 after point (e):
'(f) for Luxembourg wines:
- "blanc des blancs".
(g) for Greek wines:
- "lefkós apó lefkás stafylás", "Blanc des blancs".'
(f) The following paragraph 3a is added:
3a. The term "blanc des blancs" referred to in paragraph 1 (d) and 3 (b) and (f), the term, "lefkós apó lefkás stafylás", "blanc de blancs" referred to in paragraphs 1 (d) and 3 (g), the term "bianco da uve bianche" referred to in paragraph 1 (c) and the term "blanco de uva blanca" referred to in paragraph 1 (e) and 3 (d) may be used only to describe a wine obtained exclusively from grapes from vine varieties classified as white grape varieties".
(g) The second subparagraph of paragraph 4 is replaced by the following:
"The first subparagraph shall not apply to the term "hock", "claret" and "Moseltaler".'
7. Article 16 (2) (b) is replaced by the following:
'(b) the terms:
- "vino di colle" and "vino di collina" where they are used to describe an Italian table wine or quality wine psr in accordance with the Italian provisions concerning their use;
- "Bergwein" for imported wines originating in Austria provided that the Austrian provisions concerning the use of that description are complied with.'
8. In Article 22 (1) the following is inserted after the second subparagraph:
'Prepackaging on which has been printed directly information which is no longer compatible with Regulation (EEC) No 335/79 and with this Reguation, because the latter have been amended, may be used for a period of two years from the date from which the amendment applies.'
9. In point 2 of Annex I (Austria)
(a) the first indent is replaced by the following:
- "Qualitaetswein mit staatlicher Pruefnummer',
(b) the third indent is replaced by the following:
- 'Qualitaetswein besonderer Reife und Leseart or Praedikatswein',
(c) the term 'Weinguetesiegel OEsterreich' is deleted.
10. The following is added to point 14 of Annex I, Bulgaria:
'- (Reserve).'
11. Chapter V of Annex II, 'Austria', is replaced by the following:
'V. AUSTRIA
1. Wines bearing the name of the wine-growing region and/or sub-region of origin (1).
1.1. Wine-growing region of Bungenland:
sub-regions:
- Neusiedlersee
- Neusiedlersee-Huegelland
- Mittelburgenland
- Suedburgenland
1.2. Wine-growing region of Niederoesterreich:
sub-regions:
- Donauland-Carnuntum
- Kamptal-Donauland
- Thermenregion
- Wachau
- Weinviertel 1.3. Wine-growing region of Steiermark:
sub-regions:
- Sued-Oststeiermark
- Suedsteiermark
- Weststeiermark
1.4. Wine-growing region of Wien.
2. Information in respect of the type of a wine produced solely from grapes harvested in Austria:
- "Heuriger" where the wine thus described is placed in circulation at the latest on 31 December of the year following the year of harvest, which must be indicated on the label;
- "Schilcher", where the wine thus described was obtained in the region of Steiermark exclusively from grapes of the "Blauer Wildbacher" variety.
(1) The terms 'wine-growing region' and 'sub-region' correspond to the terms 'Weinbauregion' and 'Weinbaugebiet' used in Austria.'
12. In Chapter VIII of Annex II, United States:
(a) the words 'Madera County' in section A of point 4, California, are deleted;
(b) section B is replaced by the following:
'B. Wines bearing one of the following names of the State and/or viticultural area of origin:
1. Arizona
1.1. Viticultural area: Sonoita
2. Arkansas
2.1. Viticultural areas:
- Altus
- Arkansas Mountain
- Ozark Mountain
3. California
3.1. Viticultural areas:
- Alexander Valley
- Anderson Valley
- Arroyo Seco
- Carmel Valley
- Carneros
- Central Coast
- Central Coast Counties
- Chalk Hill
- Chalone (1)
- Cienega Valley
- Clarksburg
- Clear Lake
- Cole Ranch
- Dry Creek
- Dry Creek Region
- Dry Creek Valley
- Edna Valley
- El Dorado
- Fiddletown
- Guenoc Valley
- Hopland
- Howell Mountain
- Knights Valley
- Lime Kiln Valley
- Liverpore Valley
- Lodi (1)
- Los Carneros
- Merritt Island
- Monterey
- Mt. Veeder District
- Napa Valley
- Napa-Sonoma-Mendocino
- North Coast
- North Coast Counties
- Northern Sonoma
- North Yuba
- Pacheco Pass
- Paicines
- Paso Robles
- Pinnacles
- Pope Valley
- Potter Valley
- Redwood Valley
- Russian River Valley
- Sanel Valley
- San Pascal Valley
- Santa Clara Valley
- Santa Cruz Mountains
- Sante Maria Valley
- Santa Inez
- Santa Inez Valley
- Saratoga
- Shenandoah Valley (1)
- Sierra Foothills
- Solano County Green Valley
- Solvang
- Sonoma County Green Valley
- Sonoma Mountain
- Sonoma Valley
- South Coast
- Suisun Valley
- Temecula
- Templeton
- Willow Creek
- Yountville
- York Mountain
4. Connecticut
4.1. Southeastern New England
5. Indiana
5.1. Viticultural area: Ohio River Valley
6. Kentucky
6.1. Viticultural area: Ohio River Valley
7. Louisiana
7.1. Viticultural area: Mississippi Delta 8. Maryland
8.1. Viticultural areas:
- Catoctin
- Cumberland Valley
- Linganore
9. Massachusetts
9.1. Viticultural areas:
- Martha's Vineyard
- Southeastern New England
10. Michigan
10.1. Viticultural areas:
- Fennville
- Lake Michigan Shore
- Leelanau Peninsula
11. Mississippi
11.1. Viticultural area: Mississippi Delta
12. Missouri
12.1. Viticultural areas:
- Augusta
- Hermann (1)
- Ozark Mountain
13. New Jersey
13.1. Viticultural area: Central Delaware Valley
14. New Mexico
14.1. Viticultural areas:
- Mesilla Valley
- Mimbres Valley
15. New York
15.1. Viticultural areas:
- Finger Lakes
- The Hamptous, Long Island
- Hudson River Region
- Lake Erie
- Lake Erie Islands
- North Fork of Long Island
16. Ohio
16.1. Viticultural areas:
- Grand River Valley
- Isle of St George
- Lake Erie
- Loramie Creek
- Ohio River Valley
17. Oklahoma
17.1. Viticultural area: Ozark Mountain
18. Oregon
18.1. Viticultural areas:
- Columbia Valley
- Umpqua Valley
- Walla Walla Valley
- Willamette Valley
19. Pennsylvania
19.1. Viticultural areas:
- Central Delaware Valley
- Cumberland Valley
- Lake Erie
- Lancaster Valley
20. Rhode Island
20.1. Viticultural area: South-eastern New England
21. Tennessee
21.1. Viticultural area: Mississippi Delta
22. Texas
22.1. Viticultural area:
- Bell Mountain
- Mesilla Valley
23. Virginia
23.1. Viticultural areas:
- Monticello
- North Fork of Roanoke
- Rocky Knob
- Shenandoah Valley
24. Washington
24.1. Viticultural areas:
- Columbia Valley
- Walla Walla Valley
- Yakima Valley
25. West Virginia
25.1. Viticultural areas:
- Kanawha River Walley
- Ohio River Valley
- Shenandoah Valley.
(1) This viticultural area may be indicated only if the State to which the area belongs is shown on the same label.'
13. In Chapter I 'Germany', of Annex III;
- the figure '(1)' is added to the term 'Samtrot' in the middle column as a reference to the footnote,
- the term 'Clevner (Fruehburgunder) (1)' in the middle column is replaced by 'Clevner (1)',
- the term 'Raifrench' appearing in the middle column as a synonym of 'Roter Elbling' and 'Weisser Elbling' is deleted.
14. In Chapter IV, Italy of Annex III:
- footnote (2) relating to the variety name 'Brunello' is replaced by the following:
'(2) Accepted only for the commune of Montalcino in the province of Siena'.
- the term 'Malvoisie' (3) is added to the right-hand column as a synonym of 'Pinot grigio', accompanied by the following footnote:
'(3) Accepted only for the region of Valle d'Aosta.' 15. In Annex IV:
(a) The variety names 'Taminga' and 'Merbein Seedless' are added to Chapter III, 'Australia', in the left-hand column;
(b) the variety name 'Emerald Riesling' is deleted in Chapters III, 'Australia', VI, 'United States' and VIII, 'Israel;'
(c) Chapter IV 'Austria' is replaced by the following:
1.2 // // // 'List of varieties accepted in the Community // Accepted Synonyms // // // IV. OESTERREICH // // Bouviertraube // // Blauburger // // Blauer Burgunder // Blauer Spaetburgunder // Blauer Portugieser // Blauburgunder, Pinot noir // Blauer Wildbacher // // Blauer Zweigelt // Rotburger // Blaufraenkisch // // Cabernet franc // // Cabernet Sauvignon // Cabernet // Chardonnay // // Fruehroter Veltliner // // Furmint // // Gewuerztraminer // // Goldburger // // Gruener Sylvaner // // Roter Sylvaner // Sylvaner // Gruener Veltliner // // Jubilaeumsrebe // // Merlot // // Mueller-Thurgau // // Muskat-Ottonel // // Muskat-Sylvaner // Weisser Sauvignon, Sauvignon blanc // Neuburger // // Roter Muskateller // // Gelber Muskateller // Muskateller // Roter Traminer // // Roter Veltliner // // Rotgipfler // // Rulaender // Grauer Burgunder, Pinot gris // St. Laurent // // Scheurebe // Saemling 88 // Trollinger // // Weisser Burgunder // Pinot blanc // Weisser Riesling // Riesling, Rheinriesling // Welschriesling // // Zierfandler // Spaetrot' // //
(d) the variety 'Gray Riesling' is deleted from Chapter VI, United States;
(e) the varieties 'Bànàti Rizling', 'Riesling de Banat' and 'Banatski Rizling' are deleted from Chapters VII, 'Hungary', X, 'Romania' and XIII, 'Yugoslavia'.
The word 'Creatà' is inserted in the place of 'Bànàti Rizling' in the left-hand column of Chapter VII, 'Hungary'. Article 2
This Regulation shall enter into force on 1 February 1987.
However:
- Article 1 (1) shall apply from 1 July 1987;
- Article 1 (4) (a) shall apply from 1 April 1988.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 January 1987.
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Commission Regulation (EC) No 193/2002
of 31 January 2002
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 (EEC) No 1766/92 of 30 June 1992 on the common organization of the market in cereals(1), as last amended by Regulation (EC) No 1666/2000(2), and in particular Article 13(3) thereof,
Having regard to Council Regulation (EC) No 3072/95 of 22 December 1995 on the common organization of the market in rice(3), as last amended by Regulation (EC) No 1987/2001(4), and in particular Article 13(3) thereof,
Whereas:
(1) Article 13 of Regulation (EEC) No 1766/92 and Article 13 of Regulation (EC) No 3072/95 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 13 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 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(5), as amended by Regulation (EC) No 2993/95(6), 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 pregelatinized 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(1)(d) of Regulation (EEC) No 1766/92 and in Article 1(1)(c) of Regulation (EC) No 3072/95 and subject to 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 1 February 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 January 2002.
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Commission Regulation (EC) No 1812/2002
of 11 October 2002
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1498/98(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 12 October 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 October 2002.
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COUNCIL REGULATION (EC) No 3119/93 of 8 November 1993 laying down special measures to encourage the processing of certain citrus fruits
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular Article 43 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas mandarins, clementines and satsumas were eligible during the 1989/90 to 1991/92 marketing years for a processing support scheme which has not been continued in 1992/93; whereas a comparison of the situation during those two periods shows that the incentives for processing should be reintroduced for those products and continued for oranges;
Whereas the production of oranges and mandarins continued to be affected by serious marketing difficulties due in particular to the varieties produced and to overproduction; whereas the production of clementines has increased appreciably over recent years to the extent also of creating surpluses; whereas, lastly, satsumas, which are replaced by clementines on the market in fresh fruit, are also in surplus;
Whereas a processing support scheme must be capable of promoting the processing of the citrus fruits concerned respectively both into juice and into segments under contracts concluded between processors and producers guaranteeing the latter a minimum price and regular supplies for industry;
Whereas, in order to encourage producers to present their products for processing rather than for withdrawal, provision should be made for the minimum processing price to be fixed at the level of the highest withdrawal price for each product applicable during the period when withdrawals are heavy;
Whereas, in order to prevent distortions of competition, provision should be made for the financial compensation granted for the processing of mandarins and clementines to be fixed at a level such that, for each of those products, the difference between the minimum price and the financial compensation, i.e. the 'burden on the industry', is identical with that for the purchase of oranges, taking into consideration the difference in juice yields;
Whereas the production of satsumas is affected by structural shortcomings in relation to marketing which can be seen in the wide dispersal of supplies; whereas provision should be made to that end therefore for the grant of special aid to citrus fruit producers' organizations which conclude contracts with processors and for financial compensation for the latter; whereas the breakdown of the amounts into aid and financial compensation is justified by the need to allocate the funds mainly to supply; whereas a transitional period, during which aid for the processing of satsumas is also paid to individual citrus fruit producers, is necessary to enable the sector to adjust to these provisions;
Whereas, in order to ensure the effectiveness of the thresholds applicable in the citrus fruit sector under Regulation (EEC) No 1035/72 (4), account must be taken when establishing those thresholds of the quantities delivered for processing under this Regulation;
Whereas Regulations (EEC) No 2601/69 (5) and (EEC) No 1123/89 (6) should be repealed,
HAS ADOPTED THIS REGULATION:
TITLE I Oranges, mandarins and clementines
Article 1
A financial compensation scheme for processing into juice shall be applied to mandarins, clementines and oranges harvested in the Community.
Article 2
The scheme referred to in Article 1 shall be based on contracts between producers and processors.
The contracts shall specify the quantities covered by them, the phasing of deliveries to processors and the prices to be paid to producers.
Once they have been concluded, contracts shall be sent to the competent authorities in the Member States concerned responsible for carrying out quantitative and qualitative checks on deliveries to processors.
Article 3
Financial compensation shall be granted to processors in respect of the quantities delivered by producers under the contracts referred to in Article 2 and if the processor has paid the producer, in respect of the raw material, a price at least equal to the minimum price, which shall be fixed for each product concerned at the level of the highest withdrawal price applicable during heavy withdrawal periods. The minimum price shall be fixed before the beginning of each marketing year.
Article 4
1. For oranges, the financial compensation may not exceed the difference between the minimum price referred to in Article 3 and the prices applied for the raw material in the producer third countries.
2. For mandarins and clementines, the financial compensation shall be fixed at a level such that, for each of these products, the burden on the industry is equivalent to that for oranges, taking into consideration the difference in juice yields.
3. The financial compensation shall be paid to the processor at his request when the control authorities in the Member States in which processing is carried out have established that the products which are covered by contracts have been processed.
4. The amount of financial compensation shall be fixed before the beginning of each marketing year.
TITLE II Satsumas
Article 5
1. An aid scheme shall be applied to satsumas harvested in the Community and processed into segments. It shall comprise the grant of:
- aid to recognized citrus fruit producers' organizations within the meaning of Article 13a of Regulation (EEC) No 1035/72,
- financial compensation to processors of satsumas into segments.
2. For the 1993/94 marketing year, however, the individual citrus fruit producers referred to in Article 19c of Regulation (EEC) No 1035/72 may receive aid equal to two-thirds of that paid to producers' organizations provided that all other relevant provisions are complied with.
Article 6
The scheme referred to in Article 5 shall be based on contracts concluded between citrus fruit producers or producers' organizations and processors on the terms referred to in Article 2.
Article 7
The financial compensation shall be granted and the minimum price fixed in accordance with Article 3.
Article 8
1. The amount of the aid may not exceed 75 % of the average financial compensation granted to processors of satsumas into segments during the 1989/90, 1990/91 and 1991/92 marketing years.
2. The aid shall be paid to the producers' organizations referred to in Article 5 at their request when the control authorities in the Member State in which processing is carried out establish that the satsumas which are covered by contracts have been delivered to the processing industry.
3. The financial compensation may not exceed 25 % of the average financial compensation granted to processors of satsumas into segments during the 1989/90, 1990/91 and 1991/92 marketing years.
4. The financial compensation shall be paid to the processor at his request when the control authorities in the Member State in which processing is carried out establish that the satsumas which are covered by contracts have been processed into segments.
5. The amounts of the financial compensation and the aid shall be fixed for a period of three marketing years. On completion of that period and following a review of the situation in the sector and on the basis of that situation, in particular as regards the concentration of supply, the Commission may determine the amounts applicable for subsequent marketing years in accordance with the procedure referred to in Article 10.
TITLE III General provisions
Article 9
1. The quantities of oranges delivered for processing under this Regulation shall be added to those placed in intervention for the purpose of assessing the overrun of the threshold fixed for this product pursuant to Article 16b of Regulation (EEC) No 1035/72. To that end the threshold shall be increased by a quantity equal to the average of the quantities of oranges for which financial compensation was paid during the marketing years 1984/85 to 1988/89 inclusive.
2. For the purposes of implementing Article 16a (1) and (2) of Regulation (EEC) No 1035/72, the quantities of mandarins and clementines delivered for processing under this Regulation shall be treated as:
- production intended for consumption as fresh fruit for the purpose of fixing the intervention thresholds,
- a quantity qualifying for an intervention measure for the purpose of ascertaining an overrun, if any, of the intervention thresholds.
3. The quantities of satsumas delivered for processing under this Regulation shall be added to the quantities placed in intervention for the purpose of assessing the overrun of the threshold fixed for this product pursuant to Article 16a of Regulation (EEC) No 1035/72. To that end the threshold shall be increased by a quantity equal to the average of the quantities of oranges for which financial compensation was paid during the marketing years 1989/90 to 1991/92 inclusive.
Article 10
Detailed rules for the application of this Regulation and in particular for fixing the minimum prices, the financial compensation and the aid for producers' organizations shall be adopted in accordance with the procedure laid down in Article 33 of Regulation (EEC) No 1035/72.
Article 11
The measures provided for in this Regulation shall be regarded as intervention intended to stabilize the agricultural markets within the meaning of Article 3 of Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy (7). They shall be financed by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF).
Article 12
Before the end of the 1995/1996 marketing year, the Commission will, if necessary, send a report to the Council on the application of this scheme, with, where appropriate, suitable proposals.
Article 13
Regulations (EEC) No 2601/69 and (EEC) No 1123/89 are hereby repealed.
Article 14
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, 8 November 1993.
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Commission Regulation (EC) No 1096/2003
of 25 June 2003
amending Commission Regulation (EC) No 953/2002 as regards increasing the quantity of barley held by the Belgian intervention agency for which a standing invitation to tender for export has been opened
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals(1), as last amended by Regulation (EC) No 1666/2000(2), and in particular Article 5 thereof,
Whereas:
(1) Commission Regulation (EEC) No 2131/93(3), as last amended by Regulation (EC) No 1630/2000(4), lays down the procedure and conditions for the disposal of cereals held by intervention agencies.
(2) Commission Regulation (EC) No 953/2002(5), as last amended by Regulation (EC) No 937/2003(6), opened a standing invitation to tender for the export of 58081 tonnes of barley held by the Belgian intervention agency.
(3) Belgium informed the Commission of the intention of its intervention agency to increase by 35123 tonnes the quantity put out to tender for export. In view of the market situation, the request made by Belgium should be granted.
(4) This increase in quantity put out to tender makes it necessary to alter the list of regions and quantities in store without delay.
(5) Regulation (EC) No 953/2002 should be amended accordingly.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 953/2002 is amended as follows:
1. Article 2 is replaced by the following:
"Article 2
1. The invitation to tender shall cover a maximum of 93204 tonnes of barley to be exported to all third countries with the exception of Bulgaria, Canada, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Mexico, Poland, Romania, the Slovak Republic, Slovenia and the United States of America.
2. The regions in which the 93204 tonnes of barley are stored are set out in Annex I to this Regulation."
2. Annex I is replaced by the Annex hereto.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 June 2003.
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DIRECTIVE 2009/80/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 13 July 2009
on the identification of controls, tell-tales and indicators for two or three-wheel motor vehicles
(Codified version)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee (1),
Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
Whereas:
(1)
Council Directive 93/29/EEC of 14 June 1993 on the identification of controls, tell-tales and indicators for two- or three-wheel motor vehicles (3) has been substantially amended (4). In the interests of clarity and rationality the said Directive should be codified.
(2)
Directive 93/29/EEC is one of the separate Directives of the EC type-approval system provided for in Council Directive 92/61/EEC of 30 June 1992 relating to the type-approval of two or three-wheel motor vehicles as replaced by Directive 2002/24/EC of the European Parliament and of the Council of 18 March 2002 relating to the type-approval of two or three-wheel motor vehicles (5) and lays down technical prescriptions concerning the design and construction of two or three-wheel motor vehicles as regards the identification of controls, tell-tales and indicators. These technical prescriptions concern the approximation of the laws of the Member States to allow for the EC type-approval procedure provided for in Directive 2002/24/EC to be applied in respect of each type of vehicle. Consequently the provisions laid down in Directive 2002/24/EC relating to vehicle systems, components and separate technical units apply to this Directive.
(3)
In order to facilitate access to the markets of non-Community countries an equivalence should exist between the requirements of this Directive and those of Regulation No 60 of the United Nations Economic Commission for Europe (6) (UNECE).
(4)
This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law and application of the Directives set out in Annex III, Part B,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
This Directive applies to the identification of controls, tell-tales and indicators for all types of vehicles as referred to in Article 1 of Directive 2002/24/EC.
Article 2
The procedure for the granting of EC component type-approval in respect of the identification of controls, tell-tales and indicators for a type of two or three-wheel motor vehicle and the conditions governing the free movement of such vehicles shall be as laid down in Chapters II and III of Directive 2002/24/EC.
Article 3
1. In accordance with the provisions of Article 11 of Directive 2002/24/EC, equivalence between the requirements laid down in this Directive and those laid down in UNECE Regulation No 60 is hereby acknowledged.
2. The authorities of the Member States which grant EC component type-approval shall accept approvals granted in accordance with the requirements of the UNECE Regulation referred to in paragraph 1 as well as component type-approval marks as an alternative to the corresponding approvals granted in accordance with the requirements of this Directive.
Article 4
This Directive may be amended in accordance with the procedure referred to in Article 18(2) of Directive 2002/24/EC in order to:
(a)
take into account any amendments to the UNECE Regulation referred to in Article 3;
(b)
adapt Annexes I and II to technical progress.
Article 5
1. Member States shall not, on grounds relating to the identification of controls, tell-tales and indicators:
-
refuse to grant EC type-approval for a type of two or three-wheel motor vehicle, or,
-
prohibit the registration, sale or entry into service of two or three-wheel motor vehicles,
if the identification of controls, tell-tales and indicators complies with the requirements of this Directive.
2. Member States shall refuse to grant EC type-approval for any new type of two or three-wheel motor vehicle on grounds relating to the identification of controls, tell-tales and indicators if the requirements of this Directive are not fulfilled.
3. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 6
Directive 93/29/EEC, as amended by the Directive listed in Annex III, Part A, is repealed without prejudice to the obligations of the Member States relating to the time limits for transposition into national law and application of the Directives set out in Annex III, 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 set out in Annex IV.
Article 7
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
It shall apply from 1 January 2010.
Article 8
This Directive is addressed to the Member States.
Done at Brussels, 13 July 2009.
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*****
COUNCIL DECISION
of 16 July 1985
on the comparability of vocational training qualifications between the Member States of the European Community
(85/368/EEC)
THE COUNCIL OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 128 thereof,
Having regard to Council Decision 63/266/EEC of 2 April 1963 laying down general principles for implementing a common vocational training policy (1), and in particular the eighth principle thereof,
Having regard to the proposal from the Commission, as amended on 17 July 1984,
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas the eighth principle of Decision 63/266/EEC is to make it possible to achieve the mutual recognition of certificates and other documents confirming completion of vocational training;
Whereas the Council resolution of 6 June 1974 (4) on the mutual recognition of diplomas, certificates and other evidence of formal qualifications requires lists of such qualifications recognized as being equivalent to be drawn up;
Whereas the absence of the said mutual recognition is a factor inhibiting freedom of movement for workers within the Community, insofar as it restricts the possibility for workers seeking employment in one Member State to rely on vocational qualifications which they have obtained in another Member State;
Whereas there is a very substantial degree of diversity in the vocational training systems in the Community; whereas these systems are constantly requiring adaptation to the new situations brought about by the impact of technological change on employment and job content;
Whereas the Council resolution of 11 July 1983 concerning vocational training policies in the European Community in the 1980s (5) affirmed the need for a convergence of policies in the vocational training field, whilst recognizing the diversity of training systems in the Member States, and the need for Community action to be flexible;
Whereas it has been possible for the Commission to establish as a reference point, with the help of the Advisory Committee for Vocational Training, a structure of levels of training which represents a first step towards the achievement of the aims laid down in the eighth principle of Decision 63/266/EEC, but whereas this structure does not reflect all the training systems being developed in the Member States;
Whereas for the skilled-worker level within this structure, and for selected priority groups of occupations, it has been possible to arrive at practical job descriptions and to identify the corresponding vocational training qualifications in the various Member States;
Whereas consultation with the vocational sectors concerned has provided evidence that these results can provide firms, workers and public authorities with valuable information concerning the comparability of vocational training qualifications;
Whereas the same basic methodology could be applied to other occupations or groups of occupations on advice from the Advisory Committee for Vocational Training and with the collaboration of employers, workers and the public authorities in the vocational sectors concerned;
Whereas it is therefore essential to make rapid progress towards the comparability of vocational training qualifications for all skilled workers, and to extend the work to other levels of training as quickly as possible;
Whereas it is advisable to have all the necessary opinions, in particular that of the Advisory Committee for Vocational Training, and the technical assistance of the European Centre for the Development of Vocational Training, and to enable the Member States and the Commission to act in accordance with existing procedures;
Whereas the Advisory Committee for Vocational Training delivered an opinion at its meeting on 18 and 19 January 1983;
Whereas paragraph 21 of the report of the Committee on a People's Europe of 29 and 30 March 1985 should be taken into account,
HAS ADOPTED THIS DECISION:
Article 1
The aim of enabling workers to make better use of their qualifications, in particular for the purposes of obtaining suitable employment in another Member State, shall require, for features of job descriptions mutually agreed by the Member States on behalf of workers, within the meaning of Article 128 of the Treaty, expedited common action by the Member States and the Commission to establish the comparability of vocational training qualifications in the Community and improved information on the subject.
Article 2
1. The Commission, in close cooperation with the Member States, shall undertake work to fulfil the aims set out in Article 1 on the comparability of vocational training qualifications between the various Member States, in respect of specific occupations or groups of occupations.
2. The work may use as a reference the structure of training levels drawn up by the Commission with the help of the Advisory Committee for Vocational Training.
The text of the said structure is attached to this Decision for information purposes.
3. The work referred to in paragraph 2 shall first and foremost concentrate on the occupational qualifications of skilled workers in mutually agreed occupations or groups of occupations.
4. The scope of this Decision may subsequently be extended to permit work to be undertaken, on a proposal from the Commission, at other levels of training.
5. The SEDOC register, used in connection with the European system for the international clearing of vacancies and applications for employment, shall, whenever possible, be used as the common frame of reference for vocational classifications.
Article 3
The following working procedure shall be employed by the Commission in establishing the comparability of vocational training qualifications in close cooperation with the Member States and the organizations of workers and employers at Community level:
- selection of the relevant occupations or groups of occupations on a proposal from the Member States or the competent employer or worker organizations at Community level;
- drawing up mutually agreed Community job descriptions for the occupations or groups of occupations referred to in the first indent;
- matching the vocational training qualifications recognized in the various Member States with the job descriptions referred to in the second indent;
- establishing tables incorporating information on:
(a) the SEDOC and national classification codes;
(b) the level of vocational training;
(c) for each Member State, the vocational title and corresponding vocational training qualifications;
(d) the organizations and institutions responsible for dispensing vocational training;
(e) the authorities and organizations competent to issue or to validate diplomas, certificates, or other documents certifying that vocational training has been acquired;
- publication of the mutually agreed Community job descriptions and the comparative tables in the Official Journal of the European Communities;
- establishment, within the meaning of Article 4 (3), of a standard information sheet for each occupation or group of occupations, to be published in the Official Journal of the European Communities;
- dissemination of information on the established comparabilities to all appropriate bodies at national, regional and local levels, as well as throughout the occupational sectors concerned.
This action could be supported by the creation of a Community-wide data base, if experience shows the need for such a base.
Article 4
1. Each Member State shall designate a coordination body, based wherever possible on existing structures, which shall be responsible for ensuring - in close collaboration with the social partners and the occupational sectors concerned - the proper dissemination of information to all interested bodies. The Member States shall also designate the body responsible for contacts with the coordination bodies in other Member States and with the Commission. 2. The coordination bodies of the Member States shall be competent to establish appropriate arrangements with regard to vocational training information for their competent national, regional or local bodies as well as for their own nationals wishing to work in other Member States and for workers who are nationals of other Member States, on established cases of comparable vocational qualifications.
3. The bodies referred to in paragraph 2 may supply on request in all Member States an information sheet drawn up in accordance with the model provided for in the sixth indent of Article 3, which the worker may present to the employer together with his national certificate.
4. The Commission is to continue studying the introduction of the European vocational training pass advocated by the Committee for a People's Europe in paragraph 21 of its report of 29 and 30 March 1985.
5. The Commission shall give the bodies referred to in paragraph 2, on request, all necessary assistance and advice concerning the preparation and setting up of the arrangements provided for in paragraph 2, including the adaptation and checking of the relevant technical documents.
Article 5
The Commission shall, in close liaison with the national coordination bodies designated by the Member States,
- review and update at appropriate, regular intervals, in close cooperation with the Member States and the organizations of workers and employers at Community level, the mutually agreed Community job descriptions and the comparative tables relating to the comparability of vocational training qualifications,
- where necessary, formulate proposals for a more efficient operation of the system including other measures likely to improve the situation as regards the comparability of vocational qualification certificates,
- where necessary, assist in the case of technical difficulties encountered by the national authorities or specialized bodies concerned.
Article 6
Each Member State shall submit to the Commission, for the first time two years after adoption of this Decision, and therefore every four years, a national report on the implementation of this Decision and the results obtained.
The Commission shall, at appropriate intervals, submit a report on its own work and on the application of this Decision in the Member States.
Article 7
This Decision is addressed to the Member States and the Commission.
Done at Brussels, 16 July 1985.
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Commission Regulation (EC) No 1618/2001
of 8 August 2001
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1498/98(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 9 August 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 August 2001.
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COMMISSION REGULATION (EC) No 933/2009
of 6 October 2009
laying down detailed rules for the application of Council Regulation (EC) No 779/98 as regards opening and providing for the administration of certain quotas for imports into the Community of poultrymeat products originating in Turkey
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 144(1) and Article 148 in conjunction with Article 4 thereof,
Having regard to Council Regulation (EC) No 779/98 of 7 April 1998 on the import into the Community of agricultural products originating in Turkey, repealing Regulation (EEC) No 4115/86 and amending Regulation (EC) No 3010/95 (2), and in particular Article 1 thereof,
Whereas:
(1)
Decision No 1/98 of the EC-Turkey Association Council of 25 February 1998 on the trade regime for agricultural products (3) establishes the system of preferences applicable to imports into the Community of agricultural products originating in Turkey.
(2)
Commission Regulation (EC) No 1383/2007 of 26 November 2007 laying down detailed rules for the application of Council Regulation (EC) No 779/98 as regards opening and providing for the administration of certain quotas for imports into the Community of poultrymeat products originating in Turkey (4), which replaced Regulation (EC) No 1396/98 (5), has opened import tariff quotas for poultrymeat products and established the rules for their management.
(3)
The use of the first-come, first-served principle has proved positive in other agricultural sectors, and in the interest of administrative simplification, the annual quota to which this Regulation refers should henceforth be administered in accordance with the method indicated in Article 144(2)(a) of Regulation (EC) No 1234/2007. This should be done in accordance with Articles 308a, 308b and 308c(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (6).
(4)
Due to the particularities of the transfer from one administrative system to the other, the annual quota to which this Regulation refers should be regarded as non-critical within the meaning of Article 308c of Regulation (EEC) No 2454/93. However, it cannot be excluded that it may become critical within the meaning of that Article, should circumstances change.
(5)
Regulation (EC) No 1383/2007 should therefore be repealed and replaced by a new Regulation. However, it would be expedient to continue to apply that Regulation to the import licences issued for the import quota periods prior to those covered by this Regulation.
(6)
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
1. This Regulation opens the tariff quota indicated in the Annex for the import of poultrymeat products.
The tariff quota shall be opened on an annual basis for the period from 1 January to 31 December (import quota period).
2. The quota set out in the Annex to this Regulation shall be managed in accordance with Articles 308a, 308b and 308c(1) of Regulation (EEC) No 2454/93. Article 308c(2) and (3) of that Regulation shall not apply.
Article 2
The products imported under the quota in the Annex hereto shall be released for free circulation on presentation of a proof of origin in accordance with Article 16 of Protocol 3 annexed to Decision No 1/98 of the EC-Turkey Association Council.
Article 3
Regulation (EC) No 1383/2007 is hereby repealed. However, it shall continue to apply to duties arising from licences issued before 1 January 2010 up to the time they expire.
Article 4
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Union.
It shall apply from 1 January 2010.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 6 October 2009.
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COMMISSION DECISION of 6 September 1996 laying down the rules for technical and scientific measures concerning the control of classical swine fever and the financial contribution from the Community (Only the German text is authentic) (96/553/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 amended by Decision 94/370/EEC (2) and in particular Article 20 thereof,
Whereas classical swine fever is a serious infectious disease of pigs which creates barriers to trade in live pigs, pigmeat and certain pigmeat products;
Whereas classical swine fever is still present in certain areas of the Community;
Whereas within the framework of Council Directive 80/217/EEC of 22 January 1980, introducing Community measures for the control of classical swine fever (3), as last amended by the Act of Accession of Austria, Finland and Sweden, the Community has adopted measures with a view to the elimination of classical swine fever from its territory;
Whereas to that end the Community is undertaking technical and scientific measures necessary to ensure that existing Community legislation takes into account developments in animal production systems and the development of new diagnostic procedures;
Whereas in this framework provisions should be made for a Community financial contribution to undertake technical and scientific measures on epidemiological aspects of classical swine fever;
Whereas materials and data collected during recent classical swine fever outbreaks in Germany are available for further analysis;
Whereas Germany took the initiative to carry out a comprehensive study using materials and information collected during classical swine fever outbreaks experienced during 1993, 1994 and 1995;
Whereas Community financial aid should be granted to Germany to enable the Institute of Virology, School of Veterinary Medicine, Hannover and the Institute of Epidemiology, Wusterhausen, to carry out further technical and scientific investigations;
Whereas for supervisory purposes Articles 8 and 9 of Council Regulation (EEC) No 729/70 of 21 April 1970 on financing of the common agricultural policy (4), as last amended by Regulation (EEC) No 2048/88 (5), should apply;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
1. With a view to ensuring that Community legislation on the control of classical swine fever in pigs kept under different husbandry systems is based on the best technical and scientific information available, the Community shall undertake the necessary measures to determine the importance of epidemiological data from recent CSF outbreaks and developments concerning diagnostic procedures.
2. The measures to be carried out shall include a study of:
(a) epidemiology, in particular, the spread of classical swine fever virus in areas adjacent to an outbreak site;
(b) disease control measures and disease eradication management.
Article 2
The Community shall grant Germany financial assistance for the technical and scientific investigations to be carried out by the Institute of Virology, School of Veterinary Medicine, Hannover and the Institute of Epidemiology situated at Wusterhausen.
Article 3
1. The Institute for Virology, School of Veterinary Medicine, Hannover, shall coordinate the functions and duties to which Article 1 (2) relates.
2. The Institute referred to in paragraph 1 shall, by 1 July 1997, submit a technical mid-term report to the Commission. The report shall contain information on work carried out and results obtained within the context of this Decision.
Article 4
The Community's financial assistance referred to in Article 2 shall be:
- at a rate of 30 % of the costs shown in the Annex incurred by Germany,
- for implementing the measures referred to in Article 1 (2) from 1 July 1996 to 31 December 1997,
- up to a maximum of ECU 25 000.
Article 5
The Community's financial assistance shall be paid as follows:
- 70 % by way of an advance at the request of Germany,
- the balance following presentation of supporting technical and financial documents. These documents must be presented before 1 April 1998.
Article 6
Articles 8 and 9 of Regulation (EEC) No 729/70 shall apply mutatis mutandis.
Article 7
This decision is addressed to Germany.
Done at Brussels, 6 September 1996.
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*****
COMMISSION REGULATION (EEC) No 3814/88
of 7 December 1988
on arrangements for imports into the Community of certain textile products (category 4) originating in Indonesia
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 4136/86 of 22 December 1986 on common rules for imports of certain textile products originating in third countries (1), as last amended by Regulation (EEC) No 2995/88 (2), and in particular Article 11 thereof,
Whereas Article 11 of Regulation (EEC) No 4136/86 lays down the conditions under which quantitative limits may be established; whereas imports into the Community of certain textile products (category 4) specified in the Annex hereto and originating in Indonesia have exceeded the level referred to in paragraph 2 of the said Article 11;
Whereas, in accordance with paragraph 5 of the said Article 11 of Regulation (EEC) No 4136/86, on 23 November 1988 Indonesia was notified of a request for consultations; whereas, pending a mutually satisfactory solution, the Commission has requested Indonesia for a provisional period of three months to limit exports to the Community of products falling within category 4 to 3 723 000 pieces with effect from the date of the request for consultations; whereas pending the outcome of the requested consultations quantitative limits identical to those requested of the supplier country should be applied provisionally to imports of the category of products in question;
Whereas paragraph 13 of the said Article 11 ensures that the quantitative limits are observed by means of a double-checking system in accordance with Annex VI to Regulation (EEC) No 4136/86;
Whereas the products in question exported from Indonesia to the Community between 23 November 1988 and the date of entry into force of this Regulation must be set off against the quantitative limit which has been introduced;
Whereas this quantitative limit should not prevent the importation of products covered by them shipped from Indonesia before the date of entry into force of this Regulation;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Textile Committee,
HAS ADOPTED THIS REGULATION:
Article 1
Without prejudice to the provisions of Article 2, imports into the Community of the category of products originating in Indonesia and specified in the Annex hereto shall be subject to the provisional quantitative limit set out in that Annex.
Article 2
1. Products referred to in Article 1 shipped from Indonesia to the Community before the date of entry into force of this Regulation and not yet released for free circulation, shall be so released subject to the presentation of a bill of lading or other transport document proving that shipment actually took place during that period.
2. Imports of products shipped from Indonesia to the Community after the entry into force of this Regulation shall be subject to the double-checking system described in Annex VI to Regulation (EEC) No 4136/86.
3. All quantities of products shipped from Indonesia on or after 23 November 1988 and released for free circulation shall be deducted from the quantitative limit laid down. This provisional limit shall not, however, prevent the importation of products covered by them but shipped from Indonesia before the date of entry into force of this Regulation.
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply until 22 February 1989.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 December 1988.
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DECISION No 206
of 15 December 2005
concerning the methods of operation and the composition of the Audit Board of the Administrative Commission on Social Security for Migrant Workers
(2006/352/EC)
THE ADMINISTRATIVE COMMISSION ON SOCIAL SECURITY FOR MIGRANT WORKERS,
Having regard to Article 101(3) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71, under which the Administrative Commission shall determine the methods of operation and the composition of the Audit Board,
Having regard to Decisions No 86 of 24 September 1973 and No 159 of 3 October 1995 concerning the methods of operation and the composition of the Audit Board,
Whereas the enlargement of the European Union on 1 May 2004 justifies a revision of the previous decisions on the methods of operation and composition of the Audit Board,
HAS DECIDED AS FOLLOWS:
1.
Decisions No 86 and No 159 are deleted and the text concerning the methods of operation and the composition of the Audit Board of the Administrative Commission on Social Security for Migrant Workers reproduced in those decisions are replaced by the text annexed to this decision.
2.
This decision shall apply from the first day of the month following its publication in the Official Journal of the European Union.
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COMMISSION REGULATION (EEC) No 1057/91 of 26 April 1991 amending certain Council Regulations and Directives on agricultural statistics in connection with the unification of Germany
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 43 thereof,
Having regard to Council Regulation (EEC) No 3570/90 of 4 December 1990 on derogations in respect of agricultural statistics in Germany in connection with the unification of Germany (1), and in particular Article 1 thereof,
Whereas the implementation of Community Regulations on agricultural statistics on the territory of the former German Democratic Republic will require adjustments on the part of the institutions responsible for collecting data and on the part of the persons responsible for providing data; whereas temporary derogations will need to be introduced concerning the deadlines for the transmission of statistics relating to that territory;
Whereas, for technical reasons, the centralization of individual data as provided for in point 6 in Annex II to Council Regulation (EEC) No 571/88 (2), as amended by Regulation (EEC) No 807/89 (3), will not be possible for the territory of the former German Democratic Republic before 31 December 1992;
Whereas, on the territory of the former German Democratic Republic, it will not be possible until after the 1992 survey in Germany to make the estimates of clearing and new plantations provided for in Articles 5 and 6 of Council Directive 76/625/EEC of 20 July 1976 concerning the statistical surveys to be carried out by the Member States (4), as last amended by Directive 86/652/EEC (5), in order to determine the production potential of plantations of certain species of fruit trees;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Agricultural Statistics,
HAS ADOPTED THIS REGULATION: Article 1
The following is hereby added to the first indent of Article 10 (1) of Council Regulation (EEC) No 2782/75 (6):
'Germany is authorized to delay the collection of monthly data on hatcheries on the territory of the former German Democratic Republic until after 1 January 1991 and to submit such data for 1991 not later than four months after the reference month.' Article 2 The following is hereby added to point 6 in Annex II to Regulation (EEC) No 571/88:
'The deadline for the centralization of individual data relating to holdings on the territory of the former German Democratic Republic is put back to 31 December 1992.' Article 3 The following is hereby inserted in Article 6 of Council Directive 72/280/EEC (7):
'2bis. Notwithstanding paragraph 2, Germany is authorized to delay the collection of data concerning holdings on the territory of the former German Democratic Republic until after 1 January 1991 and to transmit the data for 1991 by the following deadlines:
(a) one month after the end of the reference week for the weekly results indicated in Article 4 (1);
(b) three months after the end of the reference month for the monthly results indicated in Article 4 (2);
(c) in July of the year following the reference year for:
- the annual results indicated in Article 4 (3) (a) and (b);
- the results of the surveys indicated in Article 1 (1) (b);
(d) August of the year following the reference year for the annual results indicated in Article 4 (3) (c);
(e) November of the year following the reference year for the results indicated in Article 4 (4).' Article 4 Council Directive 73/132/EEC (8) is hereby amended as follows:
1. The following paragraph 4 is added to Article 6:
'4. Notwithstanding paragraph 3, Germany is authorized to delay transmission of forecasts concerning the territory of the former German Democratic Republic until not later than 10 weeks following the reference month for the 1990 and 1991 surveys.',
2. The following paragraph 5 is added to Article 7:
'5. Nothwithstanding paragraph 1, Germany is authorized to delay the production of monthly statistics relating to the territory of the former German Democratic Republic until 1991 and, by way of derogation from paragraph 4, to delay the transmission of the results for 1991 until not later than 10 weeks following the reference month.' Article 5 Directive 76/625/EEC is hereby amended as follows:
1. The following paragraph 4 is added to Article 5:
'4. Notwithstanding paragraph 1, Germany is authorized to delay the production of statistics relating to the territory of the former German Democratic Republic until 1993.',
2. The following paragraph 3 is added to Article 6:
'3. Notwithstanding paragraph 1, Germany is authorized to delay the production of statistics relating to the territory of the former German Democratic Republic until 1993.' Article 6 Council Directive 76/630/EEC (9) is hereby amended as follows:
1. The following indent is added to Article 1:
'Notwithstanding the first indent, Germany is authorized to carry out a survey in May 1991 instead of the survey stipulated for April 1991 in the case of the territory of the former German Democratic Republic.',
2. The following subparagraph is added to Article 4 (3):
'Notwithstanding the first indent, Germany is authorized to delay the transmission of the results of the survey to be carried out in May 1991 on the territory of the former German Democratic Republic until 31 August 1991 at the latest.',
3. The following paragraph 4 is added to Article 7:
'4. Notwithstanding paragraph 1, Germany is authorized to delay the production of monthly statistics on the territory of the former German Democratic Republic until January 1991.' Article 7 Council Directive 82/177/EEC (10) is hereby amended as follows:
1. The following paragraph 4 is added to Article 6:
'4. Notwithstanding paragraph 3, Germany is authorized to delay the transmission of the forecasts to be drawn up in 1991 until 1 April 1991 at the latest.',
2. The following paragraph 5 is added to Article 7:
'5. Notwithstanding paragraph 1, Germany is authorized to delay the production of monthly statistics on the territory of the former German Democratic Republic until January 1991 and, by way of derogation from paragraph 4, to delay the transmission of the results for 1991 until 10 weeks after the reference month at the latest.' Article 8 This Regulation shall enter into force on the 10th 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 1991.
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COMMISSION REGULATION (EC) Νo 950/2007
of 9 August 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 2 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 10 August 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 August 2007.
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COMMISSION REGULATION (EC) No 1083/2005
of 8 July 2005
opening a standing invitation to tender for the resale on the Spanish market of barley held by the German intervention agency
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1), and in particular Article 6 thereof,
Whereas:
(1)
Commission Regulation (EEC) No 2131/93 of 28 July 1993 laying down the procedure and conditions for the sale of cereals held by intervention agencies (2) provides in particular that cereals held by intervention agencies are to be sold by tendering procedure at prices preventing market disturbance.
(2)
Because of the difficult weather conditions in much of Spain, cereals production has been significantly reduced in the 2005/06 marketing year. This situation has already led to high prices locally, causing supply difficulties at competitive prices for growers and the livestock feed industry alike.
(3)
Germany has significant intervention stocks of barley, which should be used up.
(4)
The stocks of barley held by the German intervention agency should therefore be made available on the Spanish cereals market; given the need to supply growers in the north of Spain, those stocks are particularly suited to the traders’ needs.
(5)
To ensure the best supply conditions for these regions, the barley must be delivered to the ports of A Coruña, Santander or Bilbao.
(6)
To take account of the situation on the Community market, provision should be made for the Commission to manage this invitation to tender. In addition, provision must be made for an award coefficient for tenders offering the minimum selling price.
(7)
It is also important that the German intervention agency’s notification to the Commission should maintain the anonymity of the tenderers.
(8)
With a view to modernising management, the information required by the Commission should be sent by electronic mail.
(9)
In order to prevent disturbances on the Spanish market, in particular during marketing of the new year’s maize harvest, these cereals should be delivered before 30 September 2005.
(10)
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
1. The German intervention agency shall open a standing invitation to tender for the sale on the Community market of 100 000 tonnes of barley held by it.
2. These sales are intended to supply the Spanish market. Entry into Spain shall be exclusively through the Spanish ports of A Coruña, Santander or Bilbao.
Article 2
The sale provided for in Article 1 shall take place in accordance with Regulation (EEC) No 2131/93.
However, notwithstanding that Regulation:
(a)
tenders shall be drawn up on the basis of the actual quality of the lot to which they apply;
(b)
the minimum selling price shall be set at a level which does not disturb the cereals market.
Article 3
1. Notwithstanding Article 13(4) of Regulation (EEC) No 2131/93 the tender security is set at EUR 10 per tonne.
2. Tenders shall be valid only if they are accompanied by the tenderer’s written commitment to lodge a security of EUR 60 per tonne within two working days of the day on which the notice of award of contract is received.
Article 4
1. The first partial invitation to tender shall expire at 15.00 (Brussels time) on 13 July 2005.
The closing dates for the submission of tenders for subsequent partial invitations to tender shall be each Wednesday at 15.00 (Brussels time), with the exception of 20 July, 3 August, 17 August and 31 August 2005, i.e. weeks when no invitation to tender shall be made.
The closing date for the submission of tenders for the last partial invitation to tender shall be 14 September 2005 at 15.00 (Brussels time).
2. Tenders must be lodged with the German intervention agency at the following address:
Bundesanstalt für Landwirtschaft und Ernährung (BLE),
Deichmannsaue 29
D-53179 Bonn
Fax 1: 00 49 228 6845 3985
Fax 2: 00 49 228 6845 3276
Article 5
Within two hours of the expiry of the time limit for the submission of tenders, the German intervention agency shall notify the Commission of tenders received. This notification shall be made by e-mail, using the form in the Annex hereto.
Article 6
Under the procedure laid down in Article 25(2) of Regulation (EEC) No 1784/2003 the Commission shall set the minimum selling price or decide not to award any quantities. In the event that tenders are submitted for the same lot and for a quantity larger than that available, the Commission may fix this price separately for each lot.
Where tenders are offering the minimum selling price, the Commission may fix an award coefficient for the quantities offered at the same time as it fixes the minimum selling price.
Article 7
In addition to the provisions of Article 16 of Regulation (EEC) No 2131/93, the successful tenderer must remove the awarded cereal stocks before 30 September 2005.
Article 8
1. The security referred to in Article 3(1) shall be released in full in respect of quantities for which:
(a)
no award is made;
(b)
payment of the selling price is made within the period set and the security referred to in Article 3(2) has been lodged.
2. The security referred to in Article 3(2) shall be released in proportion to the quantities of cereals unloaded at one of the ports referred to in Article 1(2). Proof of a particular destination shall be supplied in accordance with Commission Regulation (EEC) No 3002/92 (3). The T5 control copy must provide proof of compliance with the conditions laid down in Article 1(2) of this Regulation.
3. Prior to unloading, the relevant party referred to in Article 3(1)(d) of Regulation (EEC) No 3002/92 shall inform the Spanish authority responsible for checks at the final destination of the following:
-
the name of the port(s) where unloading will take place,
-
the name(s) of the means of transport that will be used,
-
the quantities that will be unloaded from each means of transport,
-
the expected unloading date(s).
Article 9
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, 8 July 2005.
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COMMISSION REGULATION (EC) No 1261/97 of 1 July 1997 adopting the balance and fixing the aid for the supply of breeding rabbits to the Canary Islands under the arrangements provided for in Article 4 of Council Regulation (EEC) No 1601/92
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1601/92 of 15 June 1992 concerning specific measures for the Canary Islands with regard to certain agricultural products (1), as last amended by Regulation (EC) No 2348/96 (2), and in particular Article 4 (4) thereof,
Whereas in application of Article 4 of Regulation (EEC) No 1601/92 it is necessary to determine, for the 1997/98 marketing year, the quantities of breeding rabbits originating in the Community which may receive aid with a view to developing the production potential of the Canary Islands;
Whereas the amount of aid referred to above for the supply to the Canaries of breeding rabbits originating in the rest of the Community must also be fixed; whereas this aid must reflect, in particular, the costs of supply from the world market, conditions due to the geographical situation of the Canaries and current prices for exports of the animals in question to third countries;
Whereas the common detailed rules for implementation of the arrangements for the supply of certain agricultural products to the Canary Islands are laid down by Commission Regulation (EC) No 2790/94 (3), as last amended by Regulation (EC) No 2883/94 (4);
Whereas pursuant to Regulation (EEC) No 1601/92, the supply arrangements are applicable from 1 July; whereas the provisions of this Regulation should enter into force immediately;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Eggs and Poultrymeat,
HAS ADOPTED THIS REGULATION:
Article 1
The aid provided for in Article 4 (1) of Regulation (EEC) No 1601/92 for the supply to the Canary Islands of breeding rabbits originating in the Community and the number of rabbits for which it may be given are determined in the Annex.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 1 July 1997.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 1 July 1997.
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*****
FIFTH COMMISSION DIRECTIVE
of 18 July 1984
adapting to technical progress Annexes II, III, IV, V and VI to Council Directive 76/768/EEC on the approximation of the laws of the Member States relating to cosmetic products
(84/415/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (1), as last amended by Directive 83/574/EEC (2), and in particular Article 8 (2) thereof,
Whereas with a view to safeguarding public health, the use of aristolochic acid (8-methoxy-3,4-methylenedioxy-10-nitrophenanthrene-1-carboxyl acid) and its salts and also all species of Veratrum should be prohibited in cosmetic products,
Whereas, on the basis of the most recent scientific and technical research and subject to certain restrictions and conditions, the use of the following substances can be permitted in cosmetic products: hydrogen peroxide in preparations for skin care and in nail-hardening preparations, hydroquinone as a localized skin-lightening agent and nicomethanol hydrofluoride (3-hydroxymethylpyridinium fluoride) in oral hygiene preparations; whereas silver nitrate can be definitively permitted for colouring eyelashes and eyebrows;
Whereas glycerol-1(4-amino-benzoate) is a UV filter listed No 4 in part 2 of Annex VII, and therefore may be deleted from No 2 in part 1 of Annex IV to Directive 76/768/EEC;
Whereas preservatives 56 and 57, listed in part 2 of Annex VI to Directive 76/768/EEC, are also added to cosmetics for other specific purposes;
Whereas the measures provided for in this Directive are in accordance with the opinion of the Committee on the Adaptation to Technical Progress of the Directives for the Removal of Technical Barriers to Trade in the Cosmetics Sector,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Directive 76/768/EEC is hereby amended as follows:
1. In Annex II:
- number 333 is replaced by:
'333. Veratrum Spp. and their preparations',
- the following item is added:
'365. Aristolochic acid and its salts'.
2. In Annex III, part 1:
- reference numbers 12 and 14 are amended as follows:
1.2.3.4.5.6 // // // // // // // a // b // c // d // e // f // // // // // // // 12 // Hydrogen peroxide // (a) Hair-care preparations (b) Skin-care preparations (c) Nail hardening preparations // 12 % of H2O2 (40 volumes) 4 % of H2O2 2 % of H2O2 // // (a) (b) (c) Contains hydrogen peroxide Avoid contact with eyes Rinse eyes immediately if product comes into contact with them // // // // // // // 14 // Hydroquinone (1) // (a) Oxidizing colouring agent for hair-dyeing: // 2 % // // (a) // // // 1. General use // // // 1. Do not use to dye eyelashes or eyebrows Rinse the eyes immediately if the product comes into contact with them Contains hydroquinone // // // 2. Professional use // // // 2. For professional use only Contains hydroquinone Rinse the eyes immediately if the product comes into contact with them // // Hydroquinone // (b) Agents for localized skin lightener // 2 % // // (b) - Contains hydroquinone - Avoid contact with the eyes - Apply to small areas - If irritation develops discontinue use - Do not use on children under the age of 12 // // // // // //
- the following reference numbers are added:
1.2.3.4.5.6 // // // // // // // a // b // c // d // e // f // // // // // // // 47 // Nicomethanol hydrofluoride // Oral hygiene products // 0,15 % calculated as F When mixed with other fluorine compounds permitted under this Annex, total F concentration must not exceed 0,15 % // // Contains nicomethanol hydrofluoride // // // // // // // 48 // Silver nitrate // Solely for products intended for colouring eyelashes and eyebrows // 4 % // // - Contains silver nitrate - Rinse the eyes immediately if product comes into contact with them // // // // // //
3. Reference Nos 2 and 6 are deleted from part 1 of Annex IV.
4. Reference No 11 is deleted from Annex V.
5. The symbol (*) is added to column (b) of part 2 in Annex VI immediately after the names of the substances designated by reference Nos 56 and 57.
Article 2
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 31 December 1985. They shall forthwith inform the Commission thereof.
Article 3
This Directive is addressed to the Member States.
Done at Brussels, 18 July 1984.
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COMMISSION REGULATION (EC) No 219/2005
of 10 February 2005
amending Regulation (EC) No 919/94 laying down detailed rules for the application of Council Regulation (EEC) No 404/93 as regards banana producers’ organisations
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 404/93 of 13 February 1993 on the common organisation of the market in bananas (1), and in particular Article 9 thereof,
Whereas:
(1)
Commission Regulation (EC) No 919/94 (2) lays down, in particular, the conditions for the recognition of producer organisations, and Annex I thereto establishes the minimum volume of marketable production of bananas and the minimum number of producers that the organisations must prove they have as members.
(2)
The minimum volume of marketable production of bananas and the minimum number of producers applicable to producer organisations in Cyprus must be established.
(3)
In order to fulfil the economic tasks assigned to the producer organisations as regards production and marketing, to increase income from marketing and to improve the management of the sector, the creation of larger units must be encouraged and the thresholds relating to the number of members and the marketable volumes in Cyprus must be established.
(4)
Regulation (EC) No 919/94 should therefore be amended accordingly.
(5)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Bananas,
HAS ADOPTED THIS REGULATION:
Article 1
Annex I to Regulation (EC) No 919/94 is hereby replaced by the text in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 February 2005.
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COMMISSION DECISION of 15 September 1981 authorizing the Italian Republic to exempt from application of Regulation (EEC) No 1463/70 on the introduction of recording equipment in road transport the vehicles referred to in Article 14a (3) (a) of Regulation (EEC) No 543/69 (Only the Italian text is authentic) (81/790/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1463/70 of 20 July 1970 on the introduction of recording equipment in road transport (1), as last amended by Regulation (EEC) No 2828/77 (2), and in particular Article 3 (3) thereof,
Whereas the Italian Government has asked the Commission to authorize exemption from Regulation (EEC) No 1463/70 of the vehicles referred to in Article 14a (3) (a) of Regulation (EEC) No 543/69 on the harmonization of certain social legislation relating to road transport (3);
Whereas this measure can have no repercussions on the situation as regards competition in the carriage of goods by road ; whereas, it can, moreover, in no way hinder the achievement of the aims of the social regulations applying to road transport;
Whereas the vehicles referred to above, which are in any case very small in number, are all intended for own-account operations having a negligible economic impact ; whereas they furthermore are normally used over very short distances and in consequence the drivers' hours are limited;
Whereas the transport operations in question are not intended to benefit from exemptions from Regulation (EEC) No 543/69 and will therefore continue to be governed by its provisions, and in particular that concerning the use of individual drivers' control books;
Whereas this measure will relate solely to the movement of the vehicles concerned on national territory and will not extend to their use in international transport operations,
HAS ADOPTED THIS DECISION:
Article 1
The Italian Republic is hereby authorized to exempt from the provisions of Regulation (EEC) No 1463/70 the vehicles referred to in Article 14a (3) (a) of Regulation (EEC) No 543/69.
Article 2
The Italian Republic shall inform the Commission of the measures taken in order to implement this Decision.
Article 3
This Decision is addressed to the Italian Republic.
Done at Brussels, 15 September 1981.
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Commission Regulation (EC) No 898/2002
of 30 May 2002
fixing the maximum export refund for white sugar for the 40th 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), as amended by Commission Regulation (EC) No 680/2002(2), 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(3), as amended by Regulation (EC) No 693/2002(4), 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 40th 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 40th 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 46,851 EUR/100 kg.
Article 2
This Regulation shall enter into force on 31 May 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 May 2002.
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COMMISSION DECISION of 31 July 1992 derogating from High Authority Recommendation No 1/64 concerning an increase in the protective duty on iron and steel products at the external frontiers of the Community (156th derogation) (92/457/ECSC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Coal and Steel Community, and in particular the third paragraph of Article 71 thereof,
Having regard to High Authority Recommendation No 1/64 of 15 January 1964 to the Governments of the Member States concerning an increase in the protective duty on iron and steel products at the external frontiers of the Community (1), as last amended by Recommendation 88/27/ECSC (2), and in particular Article 3 thereof,
Whereas the Representatives of the Governments of the Member States of the European Coal and Steel Community meeting within the Council, in agreement with the Commission, have decided to suspend entirely their customs duties applicable to imports of products covered by the Treaty establishing the European Coal and Steel Community and originating in Iceland, from 1 August 1992 to 31 January 1993;
Whereas this Decision justifies the authorization of derogations pursuant to Article 3 of Recommendation No 1/64,
HAS ADOPTED THIS DECISION:
Article 1
Member States are hereby authorized to derogate from the obligations arising under Article 1 of High Authority Recommendation No 1/64 to the extent necessary to suspend entirely the rate of their customs duties applicable to imports of steel products covered by Article 81 of the Treaty establishing the European Coal and Steel Community and originating in Iceland.
Article 2
This Decision is addressed to the Member States.
It shall be applicable from 1 August 1992 until 31 January 1993. Done at Brussels, 31 July 1992.
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COMMISSION REGULATION (EU) No 93/2010
of 2 February 2010
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1),
Having regard to Commission Regulation (EC) No 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 3 February 2010.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 February 2010.
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COMMISSION DECISION of 21 June 1994 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (IV/M.430 - Procter & Gamble/VP Schickedanz (II)) (Only the English text is authentic) (Text with EEA relevance) (94/893/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (1), and in particular Article 8 (2) thereof,
Having regard to the EEA Agreement and in particular Article 57 (1) thereof,
Having regard to the Commission Decision of 17 February 1994 to initiate proceedings in this case,
Having given the undertakings concerned the opportunity to make known their views on the objections raised by the Commission,
Having regard to the opinion of the Advisory Committee on Concentrations,
Whereas:
(1) On 17 January 1994 Procter & Gamble GmbH notified the Commission of a proposed concentration by which it intends to acquire the whole of Vereinigte Papierwerke Schickedanz AG. This notification follows the withdrawal on 17 January 1994 of its initial notification of 9 December 1993.
The second notification relates to a modified transaction in so far as it includes an offered divestment of a part of VPS's catamenials business (see recital 8 below).
(2) After examination of the notification the Commission has concluded that the notified concentration falls within the scope of Regulation (EEC) No 4064/89.
On 17 February 1994, the Commission decided to initiate proceedings in application of Article 6 (1) c of the Merger Regulation.
I. THE PARTIES (3) Procter & Gamble GmbH (P& G) is a wholly-owned subsidiary of the Procter & Gamble Company which is active in consumer laundry, cleaning, health and beauty products, paper products including sanitary protection products (except tampons), and food and beverages.
(4) Vereinigte Papierwerke Schickedanz AG (VPS) is a wholly-owned subsidiary of Gustav und Grete Schickedanz Holding KG (GGS), a partnership organized under the laws of Germany. VPS produces household paper and sanitary protection products.
II. THE OPERATION (5) Procter & Gamble GmbH will acquire the entire share capital of VPS, together with that of other GGS subsidiaries active in related businesses. Under the terms of the share transfer agreement between P& G and GGS and a side agreement between GGS, VPS and P& G, VPS will separate its baby nappy business from its other activities and hold it in a separate company prior to completion of the transaction. The agreements provide for P& G to acquire the VPS shares and then, immediately at closing, to transfer the shares of the separated company holding VPS's baby hygiene business to a third party, i.e., a trustee designated by Procter & Gamble on 22 December 1993.
(6) This third party shall be assigned the mandate of finding final buyers within an initial period of [. . .] (2) months following closing, to be extended if necessary by a further [. . .] months under certain conditions.
(7) This commitment not to acquire control of VPS's baby diaper business forms an integral part of the notification and for this reason, despite the objections the Commission would have to any such acquisition, this Decision does not address this market.
(8) Futhermore, with regard to concerns as to possible effects of the notified concentration as to feminine hygiene products, P& G included in its notification a commitment, offered unilaterally to the Commission and supplemented by an additional agreement between the parties, not to acquire control of the 'non-Camelia business' (i.e. the tangible and intangible assets related to three VPS brands - Bluemia, Femina and Tampona - and VPS's private label business) of VPS's catamenial activities. Subsequently, and in the light of the objections raised by the Commission, P& G substantially altered both the brands to be divested and the terms of such a divestment (see Part VI of this Decision). It substituted the Camelia-branded feminine hygiene products for the non-Camelia products of VPS.
III. THE CONCENTRATION (9) P& G will gain sole control over VPS (subject to the exceptions of the baby diaper business). The operation is thus a concentration within the meaning of Article 3.
IV. COMMUNITY DIMENSION (10) The notified operation has a Community dimension since total worldwide turnover of the undertaking concerned (P& G ECU 23,626 billion and VPS ECU 681 million in 1992/93 respectively) exceeds the ECU 5 billion threshold; the aggregate Community-wide turnover of both undertakings concerned (P& G ECU [. . .] million and VPS ECU [. . .] million) is more than ECU 250 million; and the parties do not achieve more than two thirds of their EC turnover in one and the same Member State.
V. COMPATIBILITY WITH THE COMMON MARKET (11) The concentration concerns the following products manufactured by VPS: household hygiene paper products, feminine products (catamenials), adult incontinence products, cotton products and certain personal body care products (cosmetics).
(12) Proceedings were initiated with respect to sanitary towels.
Household hygiene paper products (13) P& G is not active in Europe in these products which comprise, inter alia, toilet paper, paper handkerchiefs, facial tissues and kitchen towels. Sales of these products account for [. . .] (3) of the total sales of VPS (about [. . .] (4)). P& G stated that the strategic aim of the proposed merger is to enter the European 'tissue market'. This is thought to be as large as the nappy and catamenial markets together (about ECU 5 billion). P& G is already a market leader in this sector in the US and Canada and it hopes to bring to bear its superior technological and product expertise in Europe through this transaction. The overall market shares of VPS are modest ([. . .] (5) in the EU and [. . .] (6) in Germany by volume; value figures not available). As for the individual products EU-wide market shares lie between [. . .] (7) (kitchen towels) and [. . .] (8) (handkerchiefs) and in Germany VPS will have [. . .] (9) in handkerchiefs and a [. . .] (10) share in toilet paper. Scott and JA/Mont are the leading suppliers and private labels play an important role on a market which is expected to grow in the coming years.
In the absence of any overlap between P& G and VPS in this sector and in the light of VPS's limited market shares, the operation does not give rise to any competition concerns for these products.
Adult incontinence products Product market (14) Adult incontinence protection products include fitted briefs, shields and pads, insert pads and undergarments. The different products are used for different degrees of loss of bladder and bowel control. Although adult incontinence products are similar to baby diaper and external sanitary napkins, suppliers and customers do not regard them as substitutable because they perform completely separate functions. The absorbency of incontinence products ranges from 150 ml of urine for light incontinence to 800-1 000 ml for heavy cases whereas feminine protection products are designed to absorb between 5 and 20 ml of fluid and the most absorbent baby diaper is designed to absorb about 160-190 ml of urine.
(15) Adult incontinence products differ from diaper and fempro products not only in size and product design but also in raw material and to some extent in technology. The technology relating to super-absorbency is different in respect of incontinence products, baby diapers and sanitary napkins in order to meet the different absorbency requirements in each case. It is true that machines for napkins or baby diapers could theoretically be adapted in order to produce incontinence pads or briefs, but this, as other suppliers confirmed, does not seem to be commercially feasible. P& G agrees that notwithstanding a certain level of supply-side substitutability, adult incontinence products are a separate market.
(16) As to the relevant geographic market, the investigation of the Commission produced contradictory results. VPS manufactures incontinence products in Germany and sells them in the Benelux, France, Italy, Spain, Germany, Austria and Switzerland (mostly under the Certina brand). P& G produces and sells the products under Attends in Western Europe and Lindor or Linidor in Italy, Spain and Portugal.
(17) Similarly, the other big suppliers in Europe such as Moelnlycke ('Tena') and Hartmann ('Molicare') market their products in most of the EEA countries. They compete apparently with the same range of products under European-wide brands, a trend that could be further strengthened by proposed EU legislation harmonizing standards for medical devices, including adult incontinence products. This could suggest a Western European market.
(18) Indication to the contrary, suggesting national markets, are, however, to be found in the form of specific supply and distribution channels which clearly distinguish these products from all other hygiene products. Adult diapers are basically considered a health care item. Products are distributed through hospitals, pharmacies and institutional suppliers even if some suppliers (e.g., Moelnlycke) currently try to distribute through retail and drug stores. In the United Kingdom, for example, approximately 80 % of the purchase are made by the National Health Service through six regional buying groups. In Germany pharmaceutical distributors tend to purchase from German suppliers.
(19) However, the definition of the relevant geographic market for adult incontinence products can be left open, since even in the case of a national market, e.g. in Germany, the conclusion of the competitive analysis would not lead to serious doubts as to the compatibility of the concentration with the common market.
(20) According to the notification, the new entity will achieve a market share in Western Europe of between [. . .] and [. . .] (11) in the Community (throughout this paragraph volume figures have been taken when value figures were unavailable). Moelnlycke is the largest supplier with more than [. . .] (12) while Hartmanns has [. . .] (13) of Western European sales. In Germany, P& G would account for [. . .] (14) of the volume of the market and would have a [. . .] (15) value share. VPS's share in both volume and value would be [. . .] (16). This would amount to a combined market share of [. . .] (17) in value terms in Germany. Moelnlycke has [. . .] (18) of the German market (by volume) and Hartmann [. . .] (19) (also by volume).
(21) Given this market structure and the fact that Moelnlycke and not P& G is the market leader on a European level, the Commission considers that the concentration will not give rise to the creation of a dominant position in Germany in respect of adult incontinence.
Cotton products and cosmetics (22) P& G does not sell cotton products (such as cotton pads, cotton balls and so-called basic cotton) in Europe and there is thus no increase in VPS's market shares. VPS has a leading cotton pad brand, Demak'up, which has a [. . .] (20) market share in the seven Member States where it is sold. VPS estimates its EC market share for all cotton products at [. . .] (21). The Commission considers that, in the absence of any indications to the contrary, the mere fact of these market shares being acquired by P& G would not be sufficient to give rise to competition concerns.
(23) Personal body care products include a large number of product lines (body/skin/hair care products, oral hygiene, scents, etc.), of which VPS only produces a limited range and sells most of it in Germany with an estimated market share of [. . .] (22). P& G's market shares also fall below 10 % in the EU and below [. . .] (23) in single Member States. For both, cosmetics represent a business unit of minor importance. Furthermore, numerous new products are launched in Western Europe each year following volatile consumer habits. The market seems to be intensely competitive. The concentration thus does not raise serious doubts as to its compatibility with the common market in this sector.
Baby nappies (24) As described above (paragraph 5), P& G would carry out a divestment of VPS's nappy business simultaneously with the closing of the acquisition.
(25) P& G has, according to the parties' calculations, an EU volume-based market share of [. . .] (24), (value-based shares are not available), excluding the nappy business of Finaf, which is to be divested in the P& G/Finaf case while VPS has a share of [. . .] (25). While the increment is perhaps not large, the Commission has already made clear in the P& G/Finaf case that P& G should not increase its market share in this sector.
(26) Given the market shares, the financial resources, the advanced technologies and the strong position of P& G in relation to retailers, the Commission considers that, in the absence of the commitment contained in P& G's notification not to acquire control of the nappy business, the operation would create a dominant position for P& G even on the assumption of a Western European market for baby nappies. It accepts, however, that the proposed divestment will meet its concerns in this area.
Feminine hygiene products A. The relevant product market (27) Feminine protection ('fempro') products comprise pant-liners, tampons and sanitary towels (pads). VPS manufactures all three while P& G makes only towels and pantliners, not tampons. Pantliners and towels are both external forms for protection relying on an adhesive pad being placed in underwear, whilst a tampon is worn internally. Collectively these products are also known as catamenials.
(28) P& G claimed in its notification that all three feminine hygiene products constitute a single market. It argued, in respect of tampons and towels, that the two products share the same use; that women switch readily between them, especially in response to new products; and that manufacturers of towels compete vigorously with tampon producers. The Commission, however, considers that pantliners, tampons and sanitary towels each constitute separate product markets.
(29) Pantliners are mostly worn as protection for inter-menstrual vaginal secretions, i.e. outside the menstrual period. They are also used menstrually, whether on their own as an insurance immediately before and after the actual period, during the so-called 'lighter days' (normally the last two days of the period when the menstrual flow is much lighter), or in conjunction with a tampon at any time during menstruation. They are not suitable for use alone as a primary method of menstrual protection. This usage pattern is confirmed by the absorbent capacity of a pantliner which is around one quarter that of a towel. Furthermore, the marketing of pantliners is geared to addressing a need for 'feminine freshness' rather than protection.
(30) In terms of the supply side, it should be noted that while there may be some limited supply-side substitutability between the production of pantliners and towels because of similarities in the technology and materials used, in practice that substitutability is extremely limited. All suppliers other than Procter & Gamble stated that the substantial retooling required to alter the product produced on the dedicated machines used by the major producers makes such retooling uneconomic. Even if there were some limited supply side substitutability, it would be difficult for any increased capacity to be converted into market share by a company not already producing towels, given the non-technological barriers to entry to the towel market which are described later in the Decision.
(31) For the above reasons the Commission does not consider pantliners to be substitutable for tampons or towels as a primary method of menstrual protection.
(32) Towels are designed for menstruation (although there may be some marginal use for light incontinence). They consist of an absorbent pad in an envelope consisting of an impermeable back sheet and a permeable cover sheet. Within this basic design there are a large number of variations which manufacturers have developed in order to differentiate their product:
- a stay-dry versus fabric surface,
- with or without wings to hold the pad in place and protect underwear,
- shaped (e.g. butterfly shape) or straight-sided,
- flat or curved to fit the body,
- packaging - folded and individually wrapped or packed flat and unwrapped,
- central protection strip to wick moisture away from the centre of the towel and improve efficiency,
- thickness.
Perhaps the most important innovation in recent years has been the launch of new ultra-thin high-absorbency towels, such as the P& G product 'Always Ultra' and Johnson & Johnson's 'Silhouettes'.
(33) Tampons are used solely for menstruation. They are composed of a carded fleece of staple fibres compressed into a tampon. Tampons are internal devices and are either put in position manually (digital tampons) or with the aid of a plastic or cardboard applicator (applicator tampons).
(34) Both tampons and towels are sold in a range of absorbency capacities to cope with the variation in the rate of flow between women and between different days of a period.
(35) In Germany, approximately one third of women use only tampons, one third only towels and one third use both products. In this decision these groups are referred to as solus tampon users, solus towel users and dual users. The exact proportions of the groups depend upon the source: a Link study supplied by P& G shows these groups in ratio 34:22:34 while figures derived by the Gesellschaft fuer Konsummarkt- und Absatzforschung (GfK) and also supplied by P& G show 28:35:33. Studies for other Member States show still different proportions.
(36) Among dual users, some purchases are for use of a tampon and towel in combination while others are for separate use. Where a woman buys both products but uses each at a different time, this does not mean that she is indifferent as to which method she uses. Dual use is based on the differences between tampons and towels which make the products non-substitutable in the individual consumer's eyes for a particular use.
(37) While both internal an external methods meet the basic need for some form of menstrual protection in the broadest sense, women appear to use each for distinct purposes, and to develop usage patterns according to strong personal preferences. The Commission's investigation has shown that this is not true merely of solus users but also of dual users. A survey of dual users prepared for Moelnlycke in Germany showed that they had specific usage patterns according to the situation. Although the sample of this study is small, it is sufficient to establish the existence of these preferences, whilst it is true that a larger sample would be needed to quantify these attitudes more reliably.
Sports 7 % 66 % Swimming - 95 % Socializing 10 % 51 % In the office 21 % 41 % At home 46 % 26 % Source: Study on dual users in Germany prepared by Infratest Burke March 1994.
As can be seen, not all the women surveyed coincided in their choice of method for a particular situation, but what is of note is that such high proportions of women had a habitual preference for one or the other method for each situation. That the method preferred is not the same between women points to the intensely personal nature of the product and the vital role played by individual preferences.
(38) This is not to ignore certain objective constraints on the choice of method, e.g. only tampons can be used for swimming, towels are less discreet than tampons, and women may be unable to use tampons immediately following childbirth, but these constraints are very limited in impact. Of much greater influence are consumer preferences. The importance of such consumer preferences was recognized in the earlier case 92/553/EEC (Nestlé/Perrier) (26), where the Commission concluded that there are separate markets for soft drinks and bottled water because, while both quenched thirst, they were not recognized as substitutable by the consumer.
(39) The differences between countries in the ratio of solus to dual use is also a function of the relative popularity of towels and tampons between women in different countries. This can be seen in the different 'penetration ratios' or ratio of usage of tampons to towels:
UK 49 : Germany 36 : France 28 : The Netherlands 25 : Belgium 25 : Denmark 22 : Spain 12 : Portugal 10 : Italy 6 : Greece 2 : 98 Source: (A) Nielsen volume figures for September 1992 - August 1993 compiled by a competitor.
(40) While the choice of protection method is very subjective and personal, there are certain general tendencies. A young woman's initial choice of both menstrual protection method and brand of product is often strongly influenced by the mother, elder sisters, close friends and health education programmes. Frequently the initial choice appears to be for a towel. Some young women then switch to tampons, particularly after leaving home. Some tampon users may then revert to towel use either permanently or temporarily after childbirth and in middle age. Medical or physiological reasons may oblige a woman to change her method of protection (e.g. heavy post-natal periods, choice of contraceptive method), and certain lifestyle and attitudinal changes may also be reflected in her choice of method.
(41) In selecting a method of menstrual protection, non-price issues such as comfort, security and discretion are central. Towels traditionally had the disadvantage of being thick and indiscret, although the new ultra-thin products overcome this problem to a large extent. Tampons still have some advantage in discretion and can be worn under tight-fitting clothing, while some women consider a tampon to be more comfortable, particularly for sports. Other non-performance considerations also play a role: towels may be seen by some women as more 'natural' because they allow the menstrual blood to flow and leave the body; for others there are perceived issues of morality in tampon use and for some women health concerns may play a role, particularly for teenagers considering whether to use tampons for the first time and who are afraid of damaging themselves by inserting a foreign body internally. Other health fears may arise out of toxic shock syndrome (TSS). The link between tampon use and TSS was first identified in the United States of America in 1981 and whilst in the USA and the United Kingdom almost all women are aware of the issue of TSS, elsewhere in Europe awareness of TSS is far lower.
(42) While it is true that both tampons and towels broadly perform the same function, they do so in such a different way that they are not regarded as substitutable by the consumer once she has established a preference or pattern of usage. Consumers appear to have very personal preferences for a method, or particular combination of methods in the case of dual users, and these are dictated as much by the physiological and physical considerations discussed above as by the technical characteristics of the product. Changes in a woman's choice of protection method or combination of methods is not proof of the substitutability of towels or tampons for these women, however. The fact that they have a preferred method which they change as a result of changes in their personal circumstances does not mean that the women are indifferent as to the method they use; quite the contrary: it is because of the differences in characteristics between internal and external methods that women change, the better to meet their new circumstances.
Own label (43) Own-label towels account for about [. . .] (27) by value and approximately [. . .] (28) by volume of towel sales in Germany. The same figures for Spain are [. . .] (29) and [. . .] (30) respectively. The very size of this difference between value and volume market shares raises the question of whether branded and own-label towels are in the same market. The own-label and store brand towels are a lower quality, lower price alternative to the branded products and are sold at a discount to branded towels (for example branded towels produced by VPS retail at prices 100 % higher than the own-label towels they produce for distribution chains). Retailers stated that whilst there was a price-conscious segment of consumers who bought own-label towels, considerable price increase would be necessary to persuade purchasers of branded towels to trade down to own label. Furthermore, it is necessary to recognize that own-label products in Germany, in terms of quality and reputation, are arguably not as developed as they are in the United Kingdom, for example.
(44) The Commission considers that because of the sizeable discount at which own-label products are sold, there is only limited competition between branded and unbranded towels. Most products purchased involve for the consumer a trade-off between the best quality available and price. Sanitary towels would appear to be an eara where many women are less prepared to compromise on quality for the sake of a low price, but faced with a branded towel price increase, some women may reassess this trade-off and decide that the new price is simply too high and buy a cheaper towel, accepting lower performance.
Prices (45) P& G argue that tampons and towels are priced in such a way as to compete head on with each other. In arguing this, P& G compare the average price of tampons (the tampon market leader in Germany) with that of Camelia pads (the market leader in pads in Germany in 1993) and show that they are the same. Whilst this is correct, it should be noted that Camelia's actual retail prices range from DM 0,136 to DM 0,377 per unit (excluding VAT) and cannot be said realistically to be priced against ob prices. The Commission considers also that it is appropriate to look at the prices of P& G's own brand Always, which has become the market leader since the beginning of 1994: its average unit price is approximately 150 % that of ob. The Commission considers that in such a mixed situation it is not possible to draw even provisional conclusions from the relative price levels of tampons and towels.
Third party views (46) P& G's main competitors in Europe, Johnson & Johnson, Kimberly-Clark and Moelnlycke, all argued that there are separate markets for towels and tampons. Smaller competitors such as Rauscher and Hedwigsthal were of the same point of view. While the tampon manufacturer, Tambrands, at first stated that there is only one product market for both tampons and towels, subsequently it argued that there is in fact a separate product market for towels and that the Commission should give consideration to the availability of tampons as an alternative form of menstrual protection.
(47) The Commission also contacted a large number of retailers in Germany, the UK, France, Spain and Austria. All but one of these retailers considered that tampons and towels were in different markets. Of the 21 retailers who expressed a view on the effect of towel promotions, 15 said that such promotions would have no effect on tampon sales, three said that the effect would be minimal, while one felt that such a promotion would increase sales for all catamenials.
Stability of usage patterns (48) As part of its evidence that women switch readily between tampons and towels, P& G commissioned a survey from GfK which asked women, inter alia, whether they would 'be prepared to switch to tampons/sanitary pads occasionally?' if a better pad/tampon were available or if the price of one method were increased by 10 %.
(49) The results of this survey showed that 44 to 65 % of women would consider occasionally purchasing a different form of protection, or using it more frequently on the basis of an improved product, and 31 to 50 % on the basis of a 10 % price rise in the other form. In evaluating what conclusions it was legitimate to draw from this survey, the Commission considered first that there is a considerable difference between a willingness perhaps to try a product or to use it on an occasional basis and a lasting change in consumer habits. Secondly, it is necessary in interpreting data from surveys such as this to correct for overstatement on the respondent's part. A reputable model developed by a market research company used by several companies in this market describes how it is necessary to adjust for the natural desire of the interviewee to please; the fact that it is easier to say yes than no, and that the interest generated in the issue at the time of interview may not be lasting and may not be reflected in actual purchase behaviour in the future. This model assumes that it is necessary to adjust such scores downwards by 50 to 80 %.
(50) A different consumer study commissioned in early 1993 by a Member State competition authority as part of an informal investigation of a national tampon market produced a very different result on the question of whether a woman would change her method of protection in the event of a price increase in one method. If prices for all brands of internal protection products rose by 10 %, then 95 % of solus tampon users would continue to use the same number of tampons (while 3 % would use fewer) and 80 % of dual users (tampons and towels) would continue to use the same number (12 % would use fewer). The same question asked for external products showed that the buying habits of 89 % of solus towel users and 78 % of dual users respectively would remain unchanged by a 10 % price increase while 11 % and 8 % respectively would use fewer. The degree of continued loyalty to a particular method is very high, particularly given the nature of this sort of study, which draws a woman's attention to a hypothetical price increase and emphasizes the possibility of switching. Especially significant is the large percentage of dual users who would be reluctant to change the intensity of their usage of a product, even though they are familiar with and actually use the alternative product.
(51) P& G has provided data on the purchasing behaviour of individual women from the GfK purchase panel in support of its claim that women do not have a stable usage pattern of menstrual protection products. The purchase panel data shows that of those women on the panel who had purchased both a tampon and a towel in the first half of 1993, only 57 % had also purchased both a tampon and a towel in the second half of the year. This would seem to imply that nearly one half of all dual users become solus users every six months. Similar panel data from A. C. Nielsen's household purchase panel of households with only one woman comparing nine-month periods show a more rigid purchase pattern, however. Of exclusive towel or tampon users in the first period, 87 % and 82 % respectively remained exclusive users in the second period. When the Nielsen panel data for the same periods are examined in terms of the number of units sold, which is a more important measure when assessing the price-constraining impact of any marginal substitutability between the two forms, it can be seen that for those women who only bought tampons in April to December 1992, only 6,3 % of their purchases in January to September 1993 were of pads. Similarly, 8 % of the purchases in the second period of those women who were exclusive pad purchasers in the first period were of tampons.
(52) However, the fundamental problem in using purchase panel data in this context is that they reflect purchase patterns and not usage patterns. Average purchase cycles of towels are, according to Nielsen data, around 1,5 to two months and close to three months for tampons for all households in the panel. Women who are predominantly towel users, for example, may only buy tampons once a year or even less frequently and vice versa for predominantly tampon users. This problem is particularly relevant if comparisons are made between relatively short time periods such as six months. Furthermore, the panel data cannot explain why a purchase is made. In order to understand whether usage patterns are stable or continuously changing it would be necessary to know how many purchasee took place owing to such factors as seasonal variations, child birth, women approaching menopause, and trial purchases.
(53) P& G's arguments contradict the views of both competitors and retailers that women are particularly conservative and stable in their buying of feminine protection products, and are in fact highly loyal not only to a particular method or combination of methods but also to individual brands.
Price and cross-price elasticity (54) P& G claims that sales of towels are influenced by the price level of tampons and that they are therefore in the same product market. GfK scanner data provided by P& G purports to show a high own price elasticity for Always as well as the existence of cross price elasticity between towels and tampons. The scanner data from GfK of weekly sales for 52 weeks from a sample of 120 stores with a surface of more than 800 m² thus shows that a [. . .] reduction in the price of Always produced on average a [. . .] increase in Always sales (own price elasticity of [. . .] (31)) and a decrease in sales of ob tampons of [. . .] (cross price elasticity of [. . .] (32)), while a [. . .] increase in Always' price resulted in a [. . .] drop in Always sales (own price elasticity of [. . .] (33)) and an [. . .] increase in sales of ob (cross price elasticity [. . .] (34)). These data therefore seem to indicate a rather high own price as well as cross price elasticity to ob, in case of a price decrease. On the other hand the own price and cross price elasticities are much lower in case of a price increase. P& G has provided scanner data from other sources as well. The type of analysis is the same as for the GfK data and shows similar results.
(55) This type of analysis suffers, however, from several weaknesses. First, there are technical problems in calculating elasticities in this way. An own price elasticity calculated as [. . .] is for example an average of the effect of price reductions in the range 0 to 20 %. A 10 % price increase could for example exhibit a much lower price elasticity than a 20 % increase. Second, the calculation is only based on weeks when the price of Always was reduced. The analysis is therefore based on a rather limited number of observations. Thirdly, and more fundamentally, this type of analysis explains all variations in sales simply in relation to price changes on Always. This is obviously a very simple approach, which confuses variations in sales caused by such different factors as seasonal variations or promotions in other stores not included in the scanner sample with general price changes.
(56) A better way to estimate elasticities is to estimate a model including as many relevant variables as possible, i.e. to use a multivariate rather than a univariate approach. In this way it is possible to distinguish the various effects of the explanatory variables from each other.Therefore, a model based on a multivariate approach explains market behaviour in a more comprehensive way than would just price variations, and therefore reduces the risk of confusing one type of variation with another.
(57) P& G has not provided an econometric analysis based on the GfK scanner data. However, A. C. Nielsen has developed an econometric price-promotion model ('Scanpro') based on scanner data similar to the GfK data, by means of which it is possible to estimate the effects of price promotions and general price changes whilst eliminating the effect of seasonal and other variations. The analysis is a standard product sold by A. C. Nielsen in many different countries for many different categories of consumer products and was supplied to the Commission in this case by Johnson & Johnson. The purpose is to enable companies to plan their promotional efforts better. An analysis was carried out using this model to compare Always Super Thin with ob. Such ultra towels are the towel type which could be expected to compete most closely with tampons. This analysis showed that neither ob promotions nor its long-term price development had had any significant impact on the sales of Always Super Thin when measured on a 95 % confidence level.
(58) The multivariate analysis by A. C. Nielsen provides additional useful insights and is a better way than the univariate analysis from GfK to understand the complex behaviour in the market place. It is, for example, likely that the price elasticities from the GfK analysis to a large extent reflect promotion effects. If they reflected long term rather than promotional elasticities, then even small price changes would lead to dramatic shifts in total market demand for ob tampons and Always Super Thin towels from one year to the next. P& G has also recognized that the GfK data could not be projected to the total market.
(59) These results are consistent with attitudinal survey data indicating that price is relatively unimportant for the consumer for this type of product. Furthermore, the analysis of scanner data provided by P& G contradicts the views of almost all retailers questioned, who said that promotions on towels resulted in reductions in sales of other towel brands but not of tampons. Where there was a slight effect, it was felt that this was due to stocking up by regular purchases, particularly dual users familiar with both products, of a brand when that brand was on promotion. However, as has been seen, a more elaborate econometric analysis makes it possible to reconcile the results from GfK's analysis with the views of retailers and competitors as well as providing elasticity estimates which can be projected to the market level.
(60) Whilst the A. C. Nielsen model is still, in some respects, crude, its results were confirmed by a separate multivariate analysis made by the American RLS company which was submitted to the Commission by a competitor. This study gave a price elasticity of 0,5 for pads, a cross-price elasticity of 0,3 for pads with respect to non-promoted price changes, and non-significant promotional elasticities. The study thus confirmed a low level of cross-price elasticity between tampons and towels found by the Nielsen study. Whilst this study relates to the USA and not Germany, the Commission notes that key market characteristics are similar: dual users constitute 39 % in Germany and 32 % in the USA while the penetration ratio is 40:60 in the USA and 39:61 in Germany.
(61) The conclusions of the econometric analyses above are confirmed by observations at the market level.
Impact of launch of Always (62) Were tampons and towels in the same market, it could be expected that events such as the entry of Always into the towel market and price increases in either market would have repercussions on the other market.
(63) Always was launched in Germany in July/August 1991 and the following table shows the response within six months and two years of average tampon and towel prices.
(35) within 6 months + 0,7 - 3,8 At February 1994 + 18,2 + 2,3 Source: Nielsen figures collated by a competitor.
As can be seen, average prices of towels other than Always at first fell slightly and then rose by only 2,3 % in two years. Tampon prices on the other hand rose slightly in the half year following the introduction of Always and then rose 18,2 % over the next two years.
(64) P& G has argued that tampons are substitutable for towels and that its Always towels have taken market share from tampons since their launch. The table below shows the relative volume share of towels and tampons of the combined towel and tampon market in Germany (referred to as the 'penetration ratio'), where Always was launched in July 1991.
Evolution in the penetration ratio (pads/tampons) showing P& G's share of towel usage separately "(volume based) Germany - 64 36 5 58 37 11 52 37 % change volume 2. (100) (100) 5. + 17 % + 20 % 8. + 4,9 % + 5,5 % Always launch July 1991. Source: Commission calculation on the basis of Nielsen volume figures supplied by P& G.
(65) It should be noted for this table that the market growth in 1991/92 is thought to result from the inclusion of the new German Laender since reunification. It is necessary to use volume figures here in order to assess whether switching has taken place. As can be seen, in Germany the entry of Always in July 1991 did not result in any reduction in tampons' share of the combined tampon and towel markets.
(66) P& G argue that this picture is misleading and that while the penetration ratio is stable in Germany, Always has in fact obtained [. . .] of its market share (and [. . .] of its gains from other brands) from tampons, and that tampons have gained a similar volume from towels, particularly the thicker and also less premium variants. This analysis was prepared for P& G by GfK, and is again on the basis of a purchase panel with no explanation of the results obtained. Furthermore, the shifts shown in the graph in the next paragraph for the old Laender of Germany are repeated in virtually all EEA states following the launch of Always, i.e. tampon volumes were unaffected. It seems very improbable that in all these cases exactly compensating shifts in volume from tampons to Always and from other towels to tampons occurred.
(67) The impact of the launch of Always in the old Laender of Germany is shown in the following graph:
Sales in mio. units in West Germany (68) As can be seen, tampon sales in 1993 are slightly higher than in the previous year and there appears to be little evidence of Always taking from tampon volume.
(69) What can be seen in the next graph, supplied by a competitor but based on Nielsen data, is that Always has taken large market shares from other towel brands since its launch in the old Laender of Germany, particularly from VPS's Camelia brand:
NAPKIN MARKET SHARE DEVELOPMENT (WEST; VALUE) (70) Another example of the low levl of interplay between the two markets can be seen in the price rise of ob tampons in May/June 1993. Ob packs were reduced from 80 to 64 units while price was held constant (an effective 25 % price increase) and ob, with a 75 % share, is a good proxy for the German tampon market as a whole. Always prices remained constant following the ob move and its rate of growth in market share not only did not increase but slowed through the last six months of 1993. Similarly, volume of all towels did not show any marked response to the tampon price increase.
(71) Figures supplied by Moelnlycke show that in the Nordic countries, where Moelnlycke sells both tampons and towels, it dramatically increased its advertising and promotion spend on towels in response to the launch of Always in mid-1992 (mid-1993 in Norway) but there was little increase in the level of spend on tampons. Between 1991 and 1993 towel A& P expenditure was increased by over 200 %, whilst that on tampons by only 34 %.
Targeting of advertising (72) The parties stated that manufacturers of both tampons and towels launched publicity campaigns aimed at encouraging users of external products to switch to internal ones and vice versa, arguing that manufacturers would not make such expenditure unless the products were in the same market. In the Commission's view, such advertising is not incompatible with the existence of separate markets because there is indeed a degree of switching in the long term and over the course of a woman's life as described earlier. The point of such advertising campaigns is to encourage such switching and to familiarize women with the arguments for switching in advance of major changes in their lives. Furthermore, much of this advertising is directed at adolescent women still experimenting with the two methods.
Supply-side substitutability (73) Tampons are manufactured in an entirely different fashion, from a compacted fleece of staple fibres, while towels are made from 'cellulose fluff' which is the same wood-based raw material used in the production of nappies and household paper products. The technologies, while relatively unsophisticated and inexpensive, are unrelated.
Conclusion on relevant product market (74) P& G argues that there is only one feminine hygiene market for towels, tampons and pantliners, and based itself upon a variety of household panel, scanner data and price studies. Whilst the Commission recognizes the seriousness of the research presented, it considers that the data is too narrowly specific to support the broad market conclusions which P& G draws from them. Furthermore, the Commission has examined market research studies provided by third parties which, while also presenting certain methodological difficulties, are broader-based and appear strongly indicative of separate markets. The Commission has been assisted in its analysis of the conclusions which it is legitimate to draw from the market research materials at its disposal by two independent experts in market research analysis.
(75) While none of the market research studies presented to the Commission is decisive, it considers that several are strongly indicative of the existence of separate markets for pads and tampons. If this indicative evidence is placed alongside the Commission's own analysis of the market and the views not only of other suppliers but also of retailers, with all of which it is consistent, the Commission concludes that there are indeed clearly separate markets not only for pantliners but also for pads and tampons.
B. Relevant geographic market (76) P& G has submitted that the relevant geographic market is Western Europe, arguing that the major suppliers of feminine hygiene products are active in several or even most of the EEA countries and that European brand names used by these manufacturers are predominant in each country. Furthermore, they refer to the absence of legal of tariff barriers, to a high degree of standardization in advertising and packaging, low transport costs, European sourcing and an increasing pan-European purchase policy of retailers.
(77) In view of the structural elements set out below, and after examination of the competitive environment in the sanitary towel market in the EEA, the Commission has, however, concluded that at least in respect of Germany and Spain the relevant geographic market within which the market power of Procter & Gamble post-merger has to be assessed is national. Several factors indicate that the parties to the concentration are and will be able to determine their competitive behaviour in Germany and Spain without suffering significant competitive constraints from outside these countries. It can be left open whether Austria also constitutes a separate geographic market for sanitary towels as the concentration does not lead to the creation of a dominant position in Austria as set out below.
1. Consumer preferences (78) Consumer demand for sanitary towels presents different characteristics in each Member State. This can be seen not only in the variation of the relative popularity of towels as opposed to tampons between Member States but also, and more importantly, within the category of sanitary towels. Whilst traditional thick and wingless towels are still the most commonly used sanitary towels (about 70 % in volume in the large Member States), innovations such as ultra-thin and winged-towels have led to varying consumer preferences. Ultra-thin, winged towels, for example, are used by French and British consumers more than by Spanish, Italian and German consumers. Thick, winged towels show the opposite tendency. A greater proportion of women use ultra-thin wingless towels in Germany than in France and the UK. While these usage patterns may not be sufficient on their own to identify national markets, they must be seen in the context of other points set out below.
2. Prices for sanitary towels (79) The Commission investigated the level of ex-factory prices and prices paid by distributors net of all discounts and rebates (net net prices) for towels in different Member States. It then indexed the prices, taking the average as 100. In the case of Procter & Gamble, the difference between the highest and the lowest indexed ex-factory prices in France, Germany, UK, Belgium and the Netherlands was [. . .] (36) points. The same figure for net net prices was [. . .] (37) points. There were significantly higher differences in competitors' prices, however, from country to country. For each competitor, the difference between the highest and the lowest prices in these countries was up to 34 points for ultra-thin winged towels (in terms of net net prices) and up to 52 points in ex-factory prices. Maximum differences in thick, wingless towels range between eight and 34 points for different suppliers (net net prices) and 19 to 57 points (ex-factory prices) (38).
(80) In Spain and Italy, ex-factory prices and net net prices range significantly below the prices in all other Member States (notwithstanding the rapid growth in prices over recent years from a low base). This is particularly true for thick towels, where products by P& G (Arbora) or by Johnson & Johnson are more than 50 points cheaper in Spain than in Germany and other Member States. Even for ultra thin towels, prices differ by more than 25 points between Spain and other countries. This is equally true for ex-factory prices and for net net prices. Spanish retailers contacted by the Commission confirmed that the ultra-thin products Evax and Ausonia supplied by the two joint ventures by P& G and other companies are equivalent to the ultra-thin towel of Always.
(81) Prices for towels have evolved at markedly different rates in Germany and other Member States. According to Nielsen figures supplied by a competitor, between January to April 1991 and January to April 1993 average towel prices in Germany rose by 10,6 %, whilst between May to August 1991 and May to August 1993, average towel prices rose by 24 % in France, 43 % in the UK and 45,5 % in the Netherlands.
3. Supply side (82) While it is true that the big suppliers of sanitary towels operate in several Member States and EFTA countries, it cannot be disregarded that there are 'home markets' for each supplier and that market shares vary significantly even between neighbouring countries.
(83) Companies which have strong market positions in countries bordering on Germany (e.g. Kimberly-Clark's [. . .] (39) share in the Netherlands market, Moelnlycke's [. . .] (40) in Denmark, [. . .] (41) in France and [. . .] (42) in the Netherlands) are either not present or only to an insignificant extent in Germany itself. Even Johnson & Johnson, the strongest competitor of P& G in Germany post-merger with [. . .] (43), holds a significantly higher market share ([. . .] (44)) in Austria. Suppliers with strong positions in France (Kaysersberg, Moelnlycke and Kimberly-Clark) are similarly absent from the Spanish market.
(84) P& G itself markets sanitary towels and pantliners in 13 EEA countries and by means of joint ventures in a further three: Italy, Spain and Portugal. VPS sells the full range of feminine hygiene products in Germany, Austria, Switzerland, Spain and Italy. VPS production facilities, however, are located in Germany with a plant in Spain. P& G sources [. . .] of its towel products for Italy and Spain from its plants in these countries. P& G's German plant in Crailsheim supplies Germany ([. . .]), France ([. . .]), UK/Ireland ([. . .]) and other EEA countries (around [. . .]).
(85) The other main suppliers all sell their products in a range of EEA states, but they also have several production sites. Johnson & Johnson, which is the most widely active of Procter & Gamble's competitors, has six production sites in Western Europe. Moelnlycke, which operates primarily in France, the Netherlands, Belgium, UK, Denmark and the Nordic countries, has plants in the UK, the Netherlands, France and Norway, although in January 1994 they also acquired the Italian company Sodalco ('Nuvenia'). Kimberly-Clark is mainly active in the UK, Ireland and the Netherlands and supplies other countries such as France from its plants in the UK and the Netherlands. Thus none of Procter & Gamble's competitors sources its supplies from a single site and while they do not have separate production facilities in every EEA country, there appears to be a regional supply correlation. In any event, the mere centralization of plants would not, in itself, be incompatible with separate national markets.
(86) The investigation made by the Commission as to the destination of towels produced in each plant showed that most of the suppliers and in particular Procter & Gamble situate their plants in a way which avoids long distances of transport, at least for large volumes. In particular, the principal markets such as Germany, the UK, France, Italy and Spain, are thus supplied over relatively short distances. One competitor explained that in order to enter an EEA country's market it purchased a local company because it was uneconomic to supply from its geographically remote production sites. Procter & Gamble has confirmed that a supplier needs a manufacturing location which allows affordable distribution costs. It gave figures for transport costs of [. . .] (45) for deliveries from Germany to France and [. . .] (46) from Germany to the UK, while a competitor provided costings that show that for journeys to the UK, Sweden and Italy, transport costs represent [. . .] (47), [. . .] (48) and [. . .] (49) respectively of their inter-company transfer price. Most of the suppliers provide their destinations from neighbouring countries or at least over relatively short distances.
(87) From the limited number of production facilities of the big suppliers it can be concluded that economies of scale are more important to some producers than the saving of transport costs. On the other hand, the impact of transport costs is, as was shown above, far from insignificant, and the big suppliers apparently tend to supply their major markets over relatively short distances.
(88) Procter & Gamble themselves submitted that 90 % of suppliers to the German market for sanitary towels, for example, are provided by German suppliers (VPS, Pelz, Hedwigsthal) or by German plants of international suppliers (Procter & Gamble, Johnson & Johnson). The remaining share falls to private label supplies, which are partly imported. Other than this, imports are minimal although there are no legal or tariff barriers. In spain local producers with local plants (including VPS) supply over 80 % of the market, and again most of the remaining share falls to private label.
4. Brands (89) Procter & Gamble argues that European brand names are predominant in Western Europe and that, even where names vary, manufacturers are using transnational technologies and multilingual packaging. The enquiries of the Commission did not confirm this, particularly in Germany and Spain. The existence of some 'Eurobrands' does, in any case, not automatically prevent the market from being essentially national.
(90) None of the suppliers of sanitary towels uses the same brand name across Western Europe, not even P& G, although it is present in 10 out of 12 EC Member States. The following survey of Member States reveals a substantial variety of brands which shows that the competitive structures in the different countries still differ.
Towel brands in EU Member States (50) " Always Camelia Silhouettes Serena Always 2 Silhouettes Vania Kotex-Freedom Nana Always 2 Silhouettes Vespre 4 Kotex-Simplicity Bodyform Pennywise Lines 2 Silhouettes 4 5 Nuvenia Ausonia Evax 2 Silhouettes Always 2 3 4 Kotex Libresse Always 2 3 Vania 5 Nana Mimosept Always 2 3 4 5 Libresse Ausonia Evax 2 Serena Modess Stayfree Always 2 Serena 4 5 Nana Always 2 Vespre Stayfree Staydry 4 Kotex-Simplicity 6
(91) As can be seen, brands can be classed either as European (Always and Silhouette) or essentially national. Some of the latter category may extend over two or three neighbouring countries with close ties (e.g. Vania in France and Belgium, Ausonia and Evax in Spain and Portugal). A large proportion of sales in Europe are actually made by important, essentially national brands (eg, Lines and Nuvenia in Italy, Camelia in Germany, Evax and Ausonia in Spain). Since brands like Serena and Vespré (Johnson & Johnson), Kotex and Freedom (Kimberly-Clark) and Libresse and Nana (Moelnlycke) cannot, or cannot yet, be qualified as Pan-European brands, it can be said that sales of current European brands - essentially Always and Silhouette - achieved [. . .] (51) in value and [. . .] (52) in volume in 1993 in Western Europe (based on Nielsen market share data from P& G and sales figures from Johnson & Johnson).
5. Demand side (92) The German retail trade remains substantially national in character. Commercial terms for German retailers differ significantly from those for French or Italian retailers for example. Trade margins are much lower in Germany than in the United Kingdom, for example, and the number of retail outlets differs significantly from some other Member States (only 70 000 in Germany compared to 100 000 or even more in Italy and Spain, despite Germany's far greater population). Own-label products in Germany have a lower quality image and are less important in competitive terms than they are in other markets, e.g. the United Kingdom, where own-label is a much more developed concept and is priced closely to premium branded products. Accordingly, price differences between premium brands and private label products are significantly larger in Germany. In the case of VPS, the average retail price excluding VAT of its branded Camelia products in Germany is DM [. . .] (53) as compared to DM [. . .] (54)-DM [. . .] (55), for its distributor brands.
(93) Purchasing is conducted on a national basis. German, United Kingdom and French retailers stated that their contracts with multinational manufacturers of feminine hygiene products such as P& G were negotiated through the national sales organizations of those manufacturers and at a national level. The existence of national sales organizations is not only, as P& G submitted, due to language differences among EEA States. As was confirmed by retailers contacted by the Commission, retailers claimed to be unaware of, and indifferent to, prices in other countries, claiming that an attempt by a French distributor to purchase from Procter & Gamble (Germany) would result only in their being referred to Procter & Gamble (France). If the major distribution groups of France, Germany, Spain and the United Kingdom are unable to do this, it cannot be expected that the smaller and more fragmented retail groups in Spain and some other EEA states should do so. Only private label products might be purchased abroad to a limited extent by retail chains anxious to ensure the lowest prices. The retail chains then of course impose their own branding on the goods to conform to local tastes.
(94) Transnational buying groups, the growing importance of which has been stressed by P& G, appear not to play a significant role in the purchase of, or negotiation of terms for, feminine hygiene products. Furthermore, it would appear that large suppliers such as Procter & Gamble are in many cases able to rebuff attempts by such groupings to impose European conditions. Many such groupings are in any case simply groupings of large retail groups which occasionally operate common European promotional actions.
6. Market entry barriers (95) In addition to the varying competitive conditions prevailing in different EEA States, there are significant barriers to entry into the national markets for sanitary towels. These barriers (which are discussed in detail in the Assessment) in themselves indicate that the geographical market is national.
High level of concentration (96) The high degree of concentration in the German towel market, with three companies - Procter & Gamble, Johnson & Johnson and VP Schickedanz - holding [. . .] (56) (in value) and [. . .] (57) (in volume), constitutes a considerable barrier to entry. It increases the risks associated with new entry in the sense of a reaction by the established suppliers against newcomers with a view to defending the acquired market positions and profitability. The same is true of the Spanish market, where Procter & Gamble alone holds [. . .] (58) by value and [. . .] (59) by volume.
Brand loyalty (97) The existence of a relatively high level of brand loyalty in the sector of sanitary towels makes it difficult to persuade users to switch to a new product and, for suppliers, to enter the market. In countries such as Spain and Italy, P& G entered the sanitary towel market by acquiring strong national brands which were retained afterwards, because of the value represented by these brands, i.e. the loyalty of customers to them.
Access to distribution (98) The towel market is a mature market in terms of the number of brands and range of products. In Germany and Austria, access to retail chains with a new brand is not impossible, it was shown by the introduction of Always, but requires an innovative and premium product and substantial efforts in advertising and promotion (sampling, etc.).
Advertising sunk costs (99) The establishment of a new brand would require heavy investment in advertising and promotion in order to persuade brand loyal customers to switch away from their usual brand. Such expenditure is a sunk cost and adds to the risk of entry.
Past attempts of market entry (100) The barriers to entry to the German market in particular can be illustrated with reference to the failure of several attempts in recent years to enter the sanitary towel market in Germany, notwithstanding the success of the launch of 'Always' due to P& G's high level of commitment and investment in its launch (see Assessment).
Conclusion (101) Factors such as the possibility to price differently in Germany and Spain as opposed to other EEA States, the brand loyalty of customers, the high level of existing concentration and the investment risk associated with entry, form a conglomeration of factors creating an important barrier to entry to the German and Spanish markets. This has been confirmed almost unanimously by the retailers and industrial suppliers consulted by the Commission. The price differentials between Germany and other countries, the importance of the Camelia brand, national purchasing by retailers (even by large chains) and the failed attempts at market entry, all demonstrate Germany to be a national market. Similarly, the market structure in Spain is characterized by the very high combined positions of Ausonia and Evax, produced by Arbora and Ausonia, which are jointly controlled by Procter & Gamble. Other suppliers do not play a significant role. Spain, thus, presents the highest level of concentration within the EEA in sanitary towels. The existing brands, especially those mentioned above, are purely national; Always has not been introduced in Spain. In addition, the Spanish retail sector is still markedly fragmented in comparison with Germany.
(102) P& G subsequently argued that the relevant geographic markets were regional. They identified three such regional markets: the nordic countries; other north European countries (Benelux, Germany, France, the United Kingdom and Ireland); and southern Europe. Whilst it is true that these groupings of countries may share certain common characteristics (such as penetration ratio), there are significant differences in the supply structure even within these groupings. In particular, major players may be absent or hold radically different market shares between neighbouring countries. Kimberly-Clark and Moelnlycke are not present on the German market but have considerable market shares in neighbouring countries. VPS, which was the market leader in Germany until 1993, has no presence in France, Benelux or the United Kingdom while the Belgian and French markets are characterized by important brands which are not supplied to neighbouring countries (Vania, Nana). Similarly the major brands in Spain, Ausonia and Evax, are not present in Italy while major Italian brands such as Lines and Novenia are not present in Spain. While it cannot be excluded that there might be a France-Benelux market, the differences in market structure and brands would exclude Germany and Spain from such a market.
Prospective of the relevant geographic market (103) P& G submits that the relevant geographic market is already Western European. In particular, they refer to the presence of large transnational suppliers in the sanitary towel sector across Western Europe and to the increasing importance of European brand names. P& G itself appears to follow a European strategy with Always and in the light of the results of its investigation the Commission recognizes that there are some indications of a development towards a European market. At least one supplier other than P& G is attempting to harmonize national or regional brand names while others are using multilingually-labelled packages. Furthermore, developments in the retail trade, such as cross-border acquisition, and formal and informal transnational groupings of retailers, suggest the first tentative signs of an integration and Europeanization of the retail trade in the EEA. Relatively low transport costs and centralization of plants may support this view.
(104) This does not mean, however, that the Spanish and German markets are anything other than national at present. Nor will the completion of a common market in this sector be achieved within the foreseeable future (e.g. within three years). In a sensitive, brand-loyal market such as this one, suppliers cannot switch to a European brand name too quickly without losing sales. The timescale for a possible Europeanization of the market exceeds the relevant perspective to be established by the Commission under the Merger Regulation and the assumption that markets will indeed become European at the end of this period must be regarded in the light of the evidence as by no means certain. The fact that, in the longer term, the sanitary towel market may, in fact, become European cannot therefore be taken into account at present.
C. Assessment Overview of the towel market (105) The market for sanitary towels has been growing at less than 5 % in volume in recent years in Europe. With population growth relatively stagnant, increased demand is mainly due to use of a greater number of product units per period by women. In value terms the market has grown enormously since 1991/92. According to adjusted Nielsen figures supplied by P& G, the West European towel market has grown by 9 % and 16 % over the last two years while the same figures for Germany show increases of 32 % and 21 % in the value of the market. The West European towel market was worth over ECU 1 500 million per annum as of June 1993, while the German market was worth ECU 269 million per annum. This growth in the value of the market is due to the introduction in the early 1990s of new, sophisticated products which, for example, were thinner, considerably more absorbent and had 'wings' (adhesive tabs on the side of the towel to hold it in place) or were body-shaped, etc. These innovative products were and are able to command a considerable premium over more traditional products.
Suppliers (106) The major players in the towel market in the EEA are P& G, which makes towels and pantliners, and Johnson & Johnson (J& J), Moelnlycke and Kimberly-Clark, which all make towels, pantliners and tampons. P& G is present in all EEA countries and Switzerland, although its presence in Spain, Portugal and Italy is through joint ventures with local companies. J& J is also present in all EEA states except Denmark, although not for all three products. Moelnlycke's business is centred on the Nordic countries, France, the UK, Benelux and Greece, while that of Kimberly-Clark on France, the UK, Benelux and Ireland, with a marginal presence in Germany.
(107) Johnson & Johnson is part of a worldwide personal care and toiletries company. It is the next largest towel producer after P& G in Western Europe, with [. . .] (60). It is the largest supplier of pantliners in Western Europe with [. . .] (61), and the second largest tampon producer behind Tambrands, with [. . .] (62). In Germany, Johnson & Johnson is the third largest towel producer, behind P& G and VPS, as well as being the largest tampon supplier in Germany, with about 80 %. In Austria it is the largest towel producer, with a market share of [. . .] (63) by value, but the merger of VPS and P& G will result in P& G becoming the new market leader, with [. . .] (64). In Spain, Johnson & Johnson has only minimal (1 %) share of the towel market, although it is stronger in other catamenial products in Spain. Its towel product range includes ultra-thin high-absorbency towels similar to the 'Always' ultra towels, which were launched at a similar time and are also premium priced.
(108) Moelnlycke, which owns Peaudouce of France, is the second largest towel manufacturer and also makes tampons and pantliners. It is wholly owned by Svenska Cellulosa AB, a Swedish corporation. Geographically its strength lies in Scandinavia, with a regional market share in excess of 50 % for pads (over 90 % in Norway), and it also has significant shares in the UK, France, Netherlands and Belgium. It is not present in Germany, Ireland, Spain, Portugal or Austria and has just bought a company in Italy which markets the Nuvenia brand.
(109) Kimberly-Clark is one of the leaders in the US market for towels but has significant market shares only in the UK, Ireland, France and the Netherlands. It is not present in Austria and Spain and has only a 0,9 % share of the German market. It also makes tampons and pantliners. Kimberly-Clark does not market an ultra-thin product in Europe.
(110) Further competitors in Germany are Pelz and Hedwigsthal, both of which have market shares clearly well under 5 %. Aldi, the retail discounter, sells an own-label brand which has [. . .] (65) in value and [. . .] (66) in volume of the German towel market according to a P& G estimate.
(111) Kaysersberg is active in the household hygiene paper and sanitary protection sectors. The only catamenial products it produces are sanitary towels, sold under the brand name 'Vania', primarily in France and Belgium. Since February 1990, Kaysersberg has been the wholly-owned subsidiary of a Dutch holding company named Jamont NV, jointly owned by James River Corporation and Cragnotti and Partners. Kaysersberg is active in France in the feminine hygiene and adult incontinence protection sector through two companies: Vania Expansion for retailer chains and Polive for pharmacies. Both are owned 50/50 by Kaysersberg SA and Johnson & Johnson but are controlled by Kaysersberg alone.
Market shares (112) In assessing the market shares of the parties, the Commission considers the most appropriate measure to be that of market share measured by value. The parties, however, have argued that volume market shares are more appropriate because the difference in price between different towels does not arise because they can be used for longer or because fewer of them can be used, but simply because the more expensive ones are more comfortable or perform better when used. Thus the number of units used by a consumer is a good indication of the hold of the manufacturer over that consumer in terms of future purchases. Whilst this might be true if higher prices did not reflect higher quality, in the case of the towel market they generally do.
(113) Feminine hygiene products, and more particularly towels, are heterogeneous products differentiated according to size, absorbency (mini, normal, super or overnight) and the special features described earlier. These differences, which determine the attractiveness of the product to a consumer, are reflected in its price and thus in value market shares.
(114) In the case of sanitary towels, premium branded products cost between 50 and 100 % more than secondary brands or private label products. The most expensive towels are the technically sophisticated ultra type, which constitute the growth sector in the market as a whole. A company's strength in this growth sector, which is reflected by its value market share, is an important indication of its competitive positioning.
(115) The ability of a manufacturer to command a higher price for its products than for competing products, whether as a result of product innovation, advertising, branding or marketing, is an important indication of the relative market power of that company compared with its competitors. This ability is reflected in value market shares but not in volume.
(116) Furthermore, in a sector where heavily promoted branded goods predominate, value shares are an approximate indication of the financial resources available to a manufacturer for reinvestment in its brand, particularly through advertising.
(117) For these reasons, the Commission considers that market shares in value better reflect the real market strength of companies in this market than market shares in volume (see also Commission Decisions 92/553/EEC of 22 July 1992 'Nestlé/Perrier', recital 40 and 93/252/EEC of 10 November 1992 'Warner Lambert/Gillette' (67), recital 22).
(118) The following market shares were supplied by P& G and are for both volume and value. The figures are based on Nielsen data and have been adjusted by P& G to account for Nielsen's imperfect coverage (68). The data given in the table below is for those three national markets where the operation results in a significant increase in market share for P& G.
(119)
National markets, market shares of sanitary towels - 1993 (69) " 35-40 20-25 75-80 65-70 20-25 15-20 20-25 20-25 1- 5 1- 5 10-15 10-15 60-65 40-45 80-85 65-70 35-40 30-35 5-10 10-15 0 1 1-5 1-5 10-15 5-10 1- 5 1 30-35 20-25 - - - - - - 1 1 - - - - - - - - 15-20 25-30 10-15 20-25 10-15 15-20 5-10 1- 5 5-10 10-15 5-10 10-15 1- 5 10-15 Source: A.C. Nielsen adjusted by P& G. Source: A.C. Nielsen adjusted by P& G.
Germany
(120) The transaction will give rise to an addition of market shares on national markets in the four markets where VPS is present. Even after taking into account the divestment of VPS's non-Camelia business offered by Procter & Gamble, its post-merger market share would be [. . .] (70) in value ([. . .] (71) in volume) of the German market. Without any divestment of the non-Camelia business the shares would be [. . .] (72) (value) and [. . .] (73) (volume). The next largest competitor after the merged entity would be Johnson & Johnson with [. . .] (74). Aldi's share of the market through its sales of own-label towels is estimated by P& G to be [. . .] (75), while small producers like Pelz and Hedwigsthal have together [. . .] (76) (their individual shares are not recorded by Nielsen). Kimberly-Clark has only [. . .] (77) of the German towel market.
(121) Procter & Gamble's market share continues to grow, although the rate of increase has recently slowed somewhat in Germany. In the year to June 1992 following the launch of Always in Germany, P& G gained a [. . .] (78) (in value) which increased to [. . .] (79) in the year to June 1993 and to [. . .] (80) in the year to December 1993. VPS's Camelia brand, like other brands, suffered considerable losses in market share in this period, so the combined market share of P& G and Camelia rose more slowly, although there has been a steady increase (81).
July 1991/June 1992 45-50 % 30-35 % January 1993/December 1993 55-60 % 35-40 % January 1993/December 1993 60-65 % 40-45 % November 1993/ December 1993 60-65 % 40-45 %
Spain and Italy (122) In Spain, P& G's already strong position via its joint ventures Arbora and Fater of [. . .] (82) by value ([. . .] (83) in volume) will be increased by [. . .] (84). Johnson & Johnson's share is only [. . .] (85) value ([. . .] (86) volume), with the bulk of the remaining sales in the market being own-label sales and other small producers.
(123) In Italy, the operation will give P& G, through its joint venture with Finaf which currently has a [. . .] (87) ([. . .] (88)) share of the Italian market, an increase of only [. . .] (89) in market share.
Austria (124) In Austria, VP Camelia will add [. . .] (90) to P& G existing [. . .] (91) market share, giving the merged entity a total share of [. . .] (92) (value) and [. . .] (93) (in volume). The nearest competitor is Johnson & Johnson with [. . .] (94) ([. . .] (95) in volume) followed by a local producer Rauscher with [. . .] (96) ([. . .] (97)).
Barriers to entry Brand loyalty (125) Should the chosen method of menstrual protection fail, the consequences are both physically unpleasant and socially embarrassing for the woman. Women appear to place great importance on the security and reliability of the product. They are therefore reluctant to experiment with an untried product. Most women display a very high level of loyalty not only to their chosen method of protection but also to a particular brand of product. They have a brand in mind when they shop. As one United Kingdom retailer phrased it: 'Customers do not browse in a store'.
(126) The Commission has examined a number of consumer research studies which show a high level of brand loyalty:
- data supplied by a competitor and prepared by GfK shows that in 1993, of total Always volume in Germany, 49 % is sold to women who are 100 % loyal to Always for their purchases of towels throughout an entire year,
- a study prepared by Dymparez in 1993 on the Spanish market concluded that the importance of brands and brand loyalty was growing and that 54 % of consumers always buy the same brand,
- a study conducted by Infratest Burke in Italy for a competitor of P& G in March 1994 shows that 89 % of women questioned concurred with the statement 'I have been using the same brand of protection for a long time'.
(127) P& G's own data for Germany shows that [. . .] of Always towel customers over 100 % loyal to the brand over a year. A further [. . .] bought Always towels in 67-99 % of their purchases. Thus the effective level of brand loyalty to Always for towel users was that over half used Always alone or almost alone.
(128) Such levels of brand loyalty reflects the cost of failure, force of habit and desire for familiarity with a trusted product in such an intimate area.
(129) Furthermore, some women distinguish between different types of towel for different purposes and buy one brand of ultra towel and another brand of maxi/overnight towel. Such women may be totally loyal to the two brands but will be shown up in statistics such as these as disloyal.
(130) Such brand loyalty acts as a barrier to entry since, with a market which is growing at under 5 % by volume per annum, any entrant must take market share away from an incumbent. To do this, the entrant must persuade women not only to try out their product, but also to buy it on a repeated basis and to stop buying their habitual brand.
Price insensitivity (131) When Always Ultra and the other innovative towels, such as J& J Silhouettes, were launched, they were priced at a considerable premium compared with ordinary towels. While they were innovative and offered superior performance, the size of the premium can be seen as indicative of the low level of price sensitivity for this product, as can the size of the price range for pads in Germany: from ECU 0,052 to ECU 0,181 each, i.e. the most expensive is over three times the price of the least expensive. Consumer surveys show price not to be a decisive factor for the majority of women in their choice of towel:
- 48 % of dual users surveyed in Germany for a competitor of P& G said that they would still buy their preferred brand of towel if it increased in price by 10 %, even if other brands were still available in the store,
- 64 % of women surveyed in a study made by Infratest Burke in Italy said they purchased a brand regardless of price. Far more important are factors such as comfort, absorbency and reliability,
- the retailers contacted almost all stated that most women did not change brands because of price. More precisely, the retailers contacted felt that a price difference of at least 10-20 % would be necessary for a woman to consider changing brand and even then it was unlikely.
Innovation (132) The market is already well developed with a number of well-known and well-established brands and a wide range of product variants. Given the high method loyalty and significant brand loyalty in sanitary towels as set out above, market entry appears to be extremely difficult without a product which is perceived by the consumer as genuinely innovative in a number of ways. Only marginal changes or slight superiority of a new brand may not be sufficient to overcome the attachment consumers have developed to established brands. P& G's Always presented a substantially innovative package of improvements which was able to penetrate the market rapidly. It is difficult to forecast new product development of similar importance by a competitor in the near future. In particular, new entrants who are not already manufacturers of towels in other geographic markets would have difficulty developing a leading-edge product and so would be handicapped in any entry attempt.
(133) Furthermore, there appears to be a considerable 'first mover advantage' in that the first company to launch a new generation of products can establish a market position which is extremely difficult to attack, even with an improved product. The first company with something new to offer may be able to persuade women to switch to its new product because it offers improved performance, but it will be more difficult for companies introducing a similar product subsequently to gain custom. Those women who were originally attracted to the new product will already have switched to the first company's product, while those who have not switched are perhaps less likely in any case to do so. In Denmark, the Netherlands and Sweden, where Moelnlycke was the first to launch an ultra product, Procter & Gamble, even with a superior product, has found it difficult to repeat the gains in market share it has made elsewhere.
Difficulty of low-price entry strategy (134) Competition in this market is largely conducted on advertising, performance and image. Since consumers are, as was explained above, relatively price-insensitive, a low-price low-promotional spend entry strategy based solely on undercutting the incumbent is inherently less likely to succeed. To the extent that advertising creates demand and determines sales, it is an important factor in the willingness of distributors to stock a new product. A low-price strategy, however, would not generate the returns necessary to fund such advertising, or to pay high listing fees to distributors to encourage them to stock a poorly-promoted brand.
Access to retail (135) With the increasing concentration of the retail industry, especially in Northern Europe, entry for new brands is becoming more difficult. Instead of having ten or more important distributors from which to gain a presence on the supermarket shelf, suppliers have to gain distribution from only five or six key accounts if they are to achieve a viable position. Furthermore, there are some indications of a sporadic trend for distributors to rationalize the number of brands they stock in order to concentrate their negotiating power and gain larger volume discounts. While retail concentration in southern Europe is considerably lower currently, such a trend is beginning there as well.
Advertising and promotion (136) P& G's launch of Always in Europe was accompanied by what other industry participants have viewed as an unprecedented promotion of the new product, including both consumer sampling and media promotion.
(137) Advertising is a key factor in generating demand for branded consumer goods. It is a means for manufacturers to attempt to reduce the demand elasticity, or price sensitivity of consumers, for their product. If successful, it gives rise to a 'virtuous circle' from a supplier's point of view, since the enhanced turnover generated allows the supplier to fund yet more sales-generating advertising. Since the reverse is also true, a 'vicious circle' of low sales reducing the ability of a supplier to fund advertising, it strengthens the market position of the strong and weakens that of the weak. Competition in the branded towel market is thus based as much on advertising as on price. As in more price sensitive markets, the ability to be competitive depends on operational efficiency and economies of scale which help keep the cost base low, although this is in order not to reduce prices but to leave as much cash-flow free for promotion as possible. A distinction should also be made between advertising and promotion expenditure aimed at encouraging women to test a new entrant's product and on-going brand support.
(138) In terms of market entry, it is clear that such entry must be sufficiently decisive and successful in order to break into the virtuous, self-reinforcing levels of market share and advertising expenditure, and that this must be achieved quickly. If it is not, then the sunk costs of entry are further and dramatically increased. Kimberly-Clark's attempted entry into the German market would appear illustrative: after the initial failure to win sufficient distribution and market share, Kimberly-Clark appears to have stopped funding promotion of its brand which resulted in sales rapidly dwindling to a negligible level. A new entrant needs not only to spend on advertising in order to encourage women to try out its new product, but it must spend sufficiently to stand out above the background of on-going brand support advertising.
(139) P& G also seemed aware of these factors and in their plans for the launch of Always in Belgium spoke of achieving '. . . . . . high brand awareness during the introduction. . . . . . [by spending] heavily in the media for the first [. . .] (98) at a level of [. . .] (99) the total yearly pad segment's media spending', that is at a level of [. . .] (100) times the expenditure of all other suppliers put together for those [. . .]. Furthermore, [. . .] key sizes of the new towel were to be sampled in [. . .] of households.
(140) P& G spent the following sums on advertising, sampling, trade promotion and listing fees for retailers when launching Always ultra thin in individual EEA countries:
February 1992/ January 1993 United Kindom and Ireland [. . .] November 1991/ October 1992 France [. . .] July 1991/June 1992 Germany [. . .] July 1990/June 1991 Belgium and Luxembourg [. . .] May 1992/April 1993 Netherlands [. . .] August 1992/July 1993 Austria [. . .]
(141) The Commission accepts that these figures represent the launch of an innovative product in national markets where P& G was not present (although it was already present in Europe through its Iberian and Italian joint ventures). However, the size of these expenditures is markedly higher than those of competitors on launches of new ultra-thin products. For example, while Procter & Gamble spent DM [. . .] million in launching ultra towels in Germany, Johnson & Johnson spent less than [. . .] of this amount. Moelnlycke's launch expenditure in France and the United Kingdom was less than [. . .] that of Procter & Gamble.
(142) P& G has also continued to spend markedly more than its competitors on all types of promotion in the years following the launch of Always. Its competitors have responded by increasing their own on-going brand support in order to defend their market share, as is shown in the following table:
(143)
Increase of advertising and promotion expenditure on towels in % Johnson and Johnson + 63 % - - no change - 8 % - - + 56 % Kaysersberg - + 61 % no change - - no change - 18 % - Moelnlycke + 18 % - 17 % no change + 21 % + 38 % + 87 % + 118 % + 35 % Kimberly-Clark + 77 % no change - - 8 % - 23 % + 7,7 % - no change
(144) Procter & Gamble quote figures from DMB& B showing that, between 1989/90 and 1992/93, advertising as a percentage of total feminine hygiene sales in Germany rose from [. . .] (101) to [. . .] (102). This compares with [. . .] (103) to [. . .] (104) for diapers and [. . .] (105) to [. . .] (106) for detergents over the same period. Whilst the overall ratio of market sales to advertising expenditure may not therefore be out of line with some other consumer goods, the barrier to entry caused by the high levels of advertising is now significantly higher than it was at the time of P& G's entry.
(145) In terms of barriers to entry, the marked increase in the level of on-going promotional support has significantly raised the level of expenditure necessary for a new entrant wishing to stand out above the 'background noise' of this on-going brand support, so that the absolute amount of money required to overcome the promotional barrier to entry has been significantly increased. Furthermore, the effect of this increase in the underlying level of advertising expenditure is also to increase the minimum viable market share on entry since the potential entrant knows that in order to fund competitive levels of advertising, it must achieve sufficient sales. Incumbents such as P& G, with large market shares, can spread their advertising costs over much larger sales volumes. Given that a campaign in a particular magazine or media channel has a fixed cost irrespective of the turnover of the product being advertised, there are important economies of scale in advertising. Retaliation by incumbents with significant market shares against new entrants is thus cheap and easy, and until the new entrant achieves a similar market share, incumbents have a cost advantage on one of the key competitive parameters.
(146) This increase in the market level of advertising thus increases risk not only for potential entrants but also for competitors, particularly those who may not have the resources or, as importantly, the will to spend such large sums.
(147) Advertising and promotion are sunk costs which are not recoverable in the event of failure in the market, so that the two effects described above will dramatically increase the financial risk of market entry, even if they are not in and of themselves insuperable barriers and even if there are potential competitors with the financial resources necessary: entry must be not only possible but a sound business proposition.
High level of concentration (148) Prior to this transaction, the top three companies in Germany held over 80 % of the market by value while in Spain, P& G's two joint ventures alone held 80 %. Post-merger, the two largest companies in Germany, P& G and J& J, will hold [. . .] (107) by value between them of the market (108), while in Spain, P& G's two joint ventures will hold [. . .] (109) more of the market as a result of the merger. These high levels of concentration constitute in themselves a barrier to entry for newcomers. The higher the share of the market leader, the harder it will be for a retailer not to stock the leader's brand and prefer a newcomer's product. It furthermore facilitates reactions against newcomers by incumbents who can defend shelf-space through special rebates for retailers or additional in-store promotion and media-spending. Furthermore, the larger the market share of the incumbents, the larger their advantage in terms of economies of scale in advertising and other areas. Overheads such as sales and marketing expense, as well as advertising itself, can all be spread over larger sales to release more cash flow for advertising and other retaliatory action.
(149) The barriers to entry enumerated above are not necessarily insuperable, particularly when taken individually, but taken together they are a very strong disincentive for any company contemplating entry into this market. P& G was able to overcome these barriers with the combination of an innovative product and massive sampling and publicity spend but, precisely as a consequence of this entry, some of the barriers, most notably advertising, access to retail and the high level of concentration, have increased significantly since the entry of P& G.
(150) The reality of these barriers can be seen in the history of entry in the German market. Kimberly-Clark launched the Freedom brand of towels in Germany in 1988/89, but the brand never achieved higher than a 2 % share and in 1993 had only 0,9 %. In 1979 Moelnlycke entered the German market with an innovative body-shaped product, Libresse Formé, via a distribution agreement with Henkel Kosmetik, part of Henkel AG. Notwithstanding the distribution agreement with Henkel, Moelnlycke was not able to achieve more than 35 to 40 % weighted distribution and finally had to withdraw with a loss. In the early 1980s Unilever tried to launch a towel under the brand Cosmea. This product was innovative (ultra thin and individually wrapped) but still did not succeed, and Unilever sold the brand to Pelz, which holds 3 % of the market with it. Between 1970 and 1985, there have been several unsuccessful attempts to establish the brand Vania in Germany by Kaysersberg.
Dominance and contestability (151) As has been shown above, P& G will hold high market shares post-operation in Germany, Spain, Austria and Italy on a towel market characterized by high barriers to entry. In establishing whether or not P& G will be dominant on these markets, the question remains as to whether P& G's position will be constrained by actual or potential competitors or by retailers.
(152) In the case of Austria the investigation of the Commission has led it to conclude that, in view of the structure of the Austrian sanitary towel market both before and after P& G's acquisition of VPS, P& G is unlikely to hold a dominant position as a result of this transaction. P& G launched Always in Austria in the summer of 1992. It gained considerable market share from Johnson & Johnson and Rauscher, which together with Camelia would afford P& G a [. . .] (110) share of the Austrian market. P& G currently faces two competitors, however, with significant market shares: Johnson & Johnson, the previous market leader in Austria and a well-resourced multinational, with [. . .] (111) and Rauscher with [. . .] (112) through its two established national brands (Senta, Cresta). The structure of the Austrian sanitary towel market is thus more balanced than in Germany. Whilst P& G's position will be strengthened as a result of the concentration, the Commission considers that the existence of the two other suppliers with significant shares in this market will constrain P& G's competitive behaviour. Whilst it is possible that P& G will further increase its market share through organic growth in the future, this is not certain and in any case the market situation would not have been caused by this concentration but by organic growth.
(153) In the case of Italy, P& G will increase its [. . .] (113) share by only [. . .] (114) (by value). While the Commission considers that market share is prima facie evidence of dominance, it does not believe that a [. . .] (115) increase will constitute a strengthening of a dominant position.
(154) Given P& G's strength in Germany and the implications of its purchase of VPS for the Spanish market, it must be assessed whether P& G will, as a result of the increased share of the German and Spanish towel markets which it will obtain by acquiring VPS, be in a position to act independently of its competitors and customers in these markets on a lasting basis.
P& G's market position (155) The speed and success of Procter & Gamble's entry into Europe has been remarkable. It has wrested market share not only from traditional national brands such as Camelia, but also from its global competitors, Johnson & Johnson, Kimberly-Clark and Moelnlycke. P& G's competitors have developed their own innovative products and, in response to Always' challenge, have dramatically increased their promotional expenditure in defence of their market shares (see above). However, the combination of the Always product and Procter & Gamble's other competitive advantages has resulted in extremely fast organic growth.
(156) Sanitary towels are products where suppliers enjoy a relatively high level of brand loyalty and reduced price sensitivity. Women must purchase them on a regular basis but they constitute only a small percentage of a woman's total monthly expenditure. As a product, therefore, the sanitary towel sector is one in which price increases beyond competitive levels would not necessarily result in reduced sales.
(157) P& G is particularly strong in the ultra-thin segment of the towel market. Its product is a recent innovation and its share of the total market is growing rapidly. P& G's strength in the fastest growth area of the market is an additional factor strengthening its market power.
(158) P& G is one of the largest suppliers of branded grocery goods to the retail trade. Many of its brands are 'must-haves' for the retailer, such as Always for most of the retailers consulted by the Commission. So P& G is in a much stronger position in commercial relations with grocery distributors than many of its competitors. By supplying [. . .] (116) of the German retailers' feminine hygiene sales, P& G is in a strong position when it comes to obtaining access to all-important shelf-space in major supermarket chains for its new products.
(159) P& G has considerable expertise in developing and marketing non-food consumer brands and understands well that the very heavy up-front investment required to create a brand can nonetheless be extremely profitable when evaluated over a relatively long time period.
(160) P& G's total turnover is over twice that of Johnson & Johnson, its next largest competitor in the sanitary towel business. More importantly, the sanitary towel turnover of Johnson & Johnson and Moelnlycke is around one third of that of P& G in Europe. This is important in the context of the advertising economies of scale explained above. For the same advertising/sales ratio as its competitors, Procter & Gamble can fund up to three times as much promotional spend in absolute terms. P& G's financial position is further strengthened by its positions on other markets such as washing powders and detergents, since even if resources are not transferred between different business segments, the ability of each to incur risk is determined by the strength of the whole.
Competitive pressure from tampons (161) P& G has argued that, even if there were two separate product markets for tampons and towels, tampons would exercise a competitive pressure on the towel market which should be taken into account in the assessment of the merger. The Commission does not consider such a competitive pressure from tampons as significant in respect of price competition.
(162) The first aspect of this is the degree to which women change their usage for non-price reasons, which can be several. A change in contraceptive methods can necessitate a change in the method of menstrual protection since the IUD can cause heavy bleeding, which is best dealt with by a towel, while the contraceptive pill reduces bleeding, facilitating tampon use. Women cannot use tampons immediately after childbirth and are obliged to use towels for a certain period of time, while other women approaching menopause may also only be able to use towels. In such cases there is clearly little competition between methods either on price or performance (given that one method has a clear functional advantage over the other). Other women, however, may change their method of protection, again not for price reasons, but because of the performance characteristics of the two methods. Particularly important here are adolescent women who wish to experiment with both methods to find which suits them best. Similarly, it is likely that there are some women who change method later in life because of the non-price characteristics of the two products. This might be because of perceptions of towels as, for example, the more 'natural' method, or of tampons as more 'modern'.
(163) There is thus a range of women who do change their usage habits for a variety of reasons other than price. These changes would be made regardless of the relative prices of the products and are essentially a given in the market which would occur whether P& G raised its towel prices or not. The level of usage change these women account for is difficult to estimate but one competitor estimated that, over the nine-month period taken in the A.C. Nielsen household purchase study, about 4 % will have had babies while 3 % will have become menopausal, which may require a change to towels. Changes in contraceptive method and adolescent experimentation would also need to be taken into account. Given the size of the switching found by the A.C. Nielsen household panel study (6 to 8 % products purchased or 13 to 18 % of women involved), the fact that part of this 'switching' is more apparent than real due to long purchase cycles and stocking, and the number of women switching for non-price reasons, the amount of price-sensitive switching is clearly very small.
(164) Nevertheless, even if price-sensitive switching were not minimal, given the low levels of cross-price elasticity found in the studies described earlier, it is clear that it would still be profitable for P& G to raise prices since the revenue generated by the consumers which they risk losing would be less than the increased revenue they would gain from all other consumers.
(165) Tampons not only form a separate market from towels, but also do not exercise any noticeable competitive pressure on them since most movement from one to the other is on the basis of non-price factors.
Purchasing power by food retailers (166) P& G has argued that retailers exert strong competitive pressure in the sector of feminine hygiene products owing to the significant purchasing power exercised by large retailers and transnational buying groups.
(167) As was set out above, transnational buying groups do not currently and will not for the foreseeable future play a significant role in the field of sanitary towels. As to the structure of the retail sector in Germany, it is true that it is highly concentrated. However, the existence of purchasing power which would be able to constrain the competitive behaviour of P& G can currently not be assumed for several reasons. Compared to other consumer food products, which are exclusively sold in grocery outlets, the demand side is less concentrated in sanitary towels because they are also sold through pharmacies and drugstores. Less than [. . .] (117) of P& G's sales (VPS: [. . .] (118)) go to the three biggest retailers in Germany, which in turn account for less than 40 % of total retail sales.
(168) An expert report ('Sondergutachten') published on 18 February 1994 under the German Act against Restrictions of Competition by the Monopolkommission, a group of independent competition experts appointed by the President of the Federal Republic of Germany, on 'Market structure and competition in retail' stated that the purchasing markets of retail in Germany are not characterized by purchasing power since suppliers of grocery goods dispose of alternatives for selling their goods and the demand side is marked by competition. The high intensity of competition between German retailers with respect to consumers has a further competitive impact on competition on the demand side. The retail sector in Spain is far more fragmented than in Germany and so has much less power than the German trade.
(169) Even if it were assumed that retailers were in a strong position vis-à-vis suppliers of grocery goods, this would have to be considered differently in the field of sanitary towels because of the significant loyalty and brand method loyalty of consumers. Whilst retailers might try to limit P& G's negotiating power by reducing the number of put-ups stocked per manufacturer, they are caught between the supplier and the consumer demand generated by that supplier's advertising. This advertising creates consumer pressure on a distributor to stock a brand which is advertised in order to meet the demands of its customers. Given the advertising capacity of P& G, the leading brands Always and Camelia are therefore almost indispensable for retailers, as confirmed by most of the retailers contacted by the Commission.
(170) Even if it were accepted that retailers did have some countervailing power to use against P& G, it is also important to examine what the motivation of the stores would be to do so. P& G has, in launching Always, argued in promotional literature for distributors that Always was a value-added product and that part of the increased sale price it could command would be shared with distributors which stocked it. Higher prices might thus simply mean higher margins for distributors. Furthermore, given the relative price insensitivity of consumers in this sector and their brand loyalty, and the effect of advertising, which is to reduce the price elasticity of the advertised good, the distributor will be able to pass on the increase to the customer without losing volume. There is thus little motivation for a retailer to resist a price increase by P& G.
(171) It could be argued that post-concentration, retailers will wish to diversify their supplier base since P& G will supply the top two brands in Germany. Retailers are, however, generally reluctant to delist premium brands like Always and Camelia, which present a high level of product support, high margins and, thus, significant turnover, in favour of an untried new product.
Current competitors (172) P& G's closest competitor in Germany is Johnson & Johnson (J& J) with a market share of [. . .] (119). Its product line is not markedly inferior to that of P& G (it launched its ultra-thin variant in August 1992) but its market share has been halved from [. . .] (120) in the two-and-a-half years since the launch of Always. Between 1990 and 1991 J& J increased its advertising support for its brand Silhouette by 90 % to respond to the launch of Always in July 1991 but appears to have had only limited success gainst P& G. In Spain, J& J, despite being the only other multinational present, has only a share of [. . .] (121) which does not pose a significant competitive threat to P& G's joint ventures.
(173) There are two other small competitors in Germany, Pelz and Hedwigsthal. Both of these are, in competition terms, marginal with market shares of under 5 % and with only secondary brands. They do not have the resources or products to pose any serious threat to P& G's market position or constrain its behaviour.
(174) As mentioned earlier, own-label products constitute [. . .] (122) by value and [. . .] (123) by volume of the German towel market and sell at around half the price of premium branded products. As was also explained earlier, the competition offered by own-label products in Germany and Spain is extremely limited given the price and quality gap. What own-label products do provide is an alternative for the consumer in the face of extreme increases in the prices of branded goods. There is a point at which a consumer, even in this market, would conclude that the improved performance of the branded product over the own label did not merit the increased price. Given the relative price insensitivity of this market, however, it is not likely that own-label products would constrain price increases in branded products unless they were highly exaggerated.
Potential competition (175) For market entry or the potential for such entry to constrain P& G's behaviour in the German and Spanish markets, it would be necessary to examine whether such entry is probable, whether it would be competitively meaningful and effective and whether it could take place within a time frame short enough to deter P& G from exploiting its market power.
(176) The first group of possible entrants are those feminine hygiene suppliers who are present in other States but not in a particular country or group of countries. In the case of Germany and Spain, Moelnlycke, Kaysersberg and even Kimberly-Clark, to the extent that its share of the German market is minimal and declining, could be considered as potential entrants. Outside the existing players in Europe there are two groups of companies which might be considered potential entrants: sanitary protection companies such as the Japanese firms Unicharm and Kao and own-label specialists such as Confab (US) or Disposable Soft Goods (Hong Kong) and also other branded consumer goods companies.
(177) Kao and Unicharm are the only major producers of feminine hygiene products who are not present on the EEA market at present (although Unicharm is in a joint venture with Moelnlycke on the baby nappy market). However, they lack marketing experience and distribution organizations in Europe. One Japanese company stated that it is 'almost impossible' for them to enter an EEA towel market given the position of P& G in Europe and also that, with only absorbent products to sell, it would be too expensive to establish its own distribution network. Manufacturers of consumer goods such as Unilever, Nestlé or Philip Morris would have the financial resources but no experience in the feminine hygiene sector or related markets and would also have to create a product and brand de novo.
(178) While there are thus several conceivable potential entrants, the question is whether any of them would be likely to enter the German or Spanish market within the next two to three years or as a timely response to excessive pricing in the market. As was discussed earlier with regard to Germany, there have been several failed attempts at entry in the last 10 to 15 years while illustrate the difficulty of penetrating this market on any scale less than that undertaken by P& G with Always.
(179) As explained earlier in the discussion of the barriers to entry in the towel market, successful entry is all or nothing and must combine a product which is perceived as innovative by the consumer with a huge advertising and promotion effort. This last point is necessary to build market share and distribution quickly. Competitors of P& G have estimated that the minimum viable market share is between 15 and 20 % if a supplier is to be able to generate the resources to fund the advertising necessary to obtain adequate weighted retail distribution (estimated by competitors for Germany to be at about 70 %) and retain market share once won. A minimum market share is also necessary to begin to be able to reap economies of scale, particularly in advertising. This requirement of a minimum viable market share limits further the potential for entry. A low-cost entry strategy based on undercutting the existing brands rather than out-promoting them would be unlikely to succeed, given not only the relatively low level of price sensitivity among consumers but also the need to fund the advertising necessary to persuade brand loyal consumers to switch brands and thus obtain retail distribution and any sales at all.
(180) Even if a company were to decide to enter the market, such a decision would be a long-term one and could not provide an immediate constraint on excessive pricing. Sanitary towels are not commodity products and new entry would entail the development, in some cases, of a new brand and probably an innovative product which would then have to be market tested, sampled, and heavily promoted before being launched. Furthermore, the sort of investment required to enter the German and Spanish market, particularly with P& G as an incumbent, and the associated investment risk, means that entry, it if comes, will not be 'hit-and-run' entry taking opportunistic advantage of short-term price levels but will be a long-term strategic decision by the entrant that the German and Spanish markets offer a profitable business opportunity despite the barriers and difficulties and that attacking P& G's dominant position in this market through such entry is a corporate priority. It is therefore unlikely that P& G will feel constrained by the threat of such entry, aware as it is both that the costs and risks of entry are too high for all but the most committed of entrants, and that the level of commitment necessary for entry into the market is such that any decision to enter will not be taken quickly, nor a product introduced to the market precipitously.
(181) While P& G's increment on the Spanish market is admittedly not large at [. . .] (124) by value, it is significant given both P& G's very high existing market share ([. . .] (125) by value) and the fact that, by this transaction, P& G denies any potential entrant the possibility of entering by buying the Camelia brand in Spain. Apart from Camelia, there is on the premium brand level only Johnson & Johnson with marginal market shares (Silhouette [. . .] (126), Serena and Vespré [. . .] (127)). Other manufacturers' brands together hold [. . .] (128) and private label products [. . .] (129). Such small market positions will not enable these competitors to constrain the two brands of P& G's joint ventures, which have [. . .] (130) and [. . .] (131) respectively. Given the significant brand loyalty in this sector and the well-established position of Ausonia and Evax, the acquisition of one of the remaining premium brands reinforces the dominant position of P& G's joint ventures on the Spanish market.
(182) Such dominance is, in the view of the Commission, likely to cause harm to the consumer in several ways, in particular on the German market:
- price - P& G will be able to increase prices for both Camelia and Always independently of the competitive reaction of other suppliers. Its freedom to do so will spring both from its market dominance in Germany and from the relatively low price sensitivity of consumers in this market. P& G will be particularly free to do so in the ultra-thin segment where the only competitor to the Camelia and Always versions are Johnson & Johnson's Silhouettes brand. Furthermore, it is probable that Johnson & Johnson's strategy as the closest competitor would be to follow any price increases introduced by P& G in order to rebuild profitability in its loss-making towel business in Germany,
- innovation and quality - the acquisition will eliminate competition on innovation between VPS and P& G. Both Camelia and Always will use globally developed P& G technology and any innovations which might have been developed by VPS, or by VPS under different ownership, will be lost to the consumer. Once again the only serious competitor on innovation will be Johnson & Johnson,
- choice - P& G's acquisition is unlikely to result in any immediate reduction in consumer choice. It is highly probable, however, that P& G will subsequently rationalize the broad range of product variants of Camelia and Always in order to maximize the efficiency of its towel business in Germany, thus reducing consumer choice.
Conclusion (183) In view of the above results of the investigation and particularly the discussion of market shares, barriers to entry and potential competition, the Commission considers that there are a number of factors relevant to the German and Spanish markets for sanitary towels whereby the acquisition by P& G of VPS, even after the divestment of VPS's baby nappy business, will enable P& G post-merger to act independently of its customers and competitors in these markets.
(184) In Germany, P& G will hold a post-merger market share of [. . .] (132) by value and [. . .] (133) by volume on a market where its closest competitor will have only [. . .] (134) by value and [. . .] (135) by volume, the balance being fragmented between other suppliers and own-label sales. These figures take into account P& G's initial offer to divest the non-Camelia feminine hygiene business of VPS (this offer has subsequently been replaced by one to divest Camelia - see paragraph 8 of this Decision). Given these figures, the barriers to entry to the German market and the history of attempts at market entry, the Commission considers that P& G's market power will not be constrained by either actual or potential competitors. Indeed, the very acquisition of VPS and its important German brand, Camelia, which is the last major national independent brand, would render entry into the German market for other entrants more difficult by obliging them to enter de novo rather than through the acquisition of an existing player.
(185) As was already set out above, the increment of another [. . .] (136) to the market position of P& G on the Spanish market would strengthen P& G's dominant position on a market which is isolated by the high level of concentration. Not only would there be an increment in an already dominant position but the Camelia brand, which might constitute an entry vehicle for a new entrant, would be lost.
VI. COMMITMENTS PROPOSED BY PROCTER & GAMBLE (186) P& G has offered to modify the original concentration plan as notified by entering into the following commitments:
'P& G hereby gives the following undertakings to the Commission with respect to VP's Camelia-branded feminine hygiene products business, which comprises: (i) the Forchheim plant and the production lines dedicated to the manufacture of feminine hygiene products; (ii) the Camelia brand name; (iii) all other assets and liabilities that form part of or are necessary for the operation of VP's Camelia-branded feminine hygiene products business (hereafter referred to as the "Business").
1. P& G undertakes that, as soon as practicable after the Commission has adopted a favourable decision under Regulation (EEC) No 4064/89 and in any event no later than at closing of its acquisition of the shares of VP, it shall appoint an independent trustee to be approved by the Commission, to act on its behalf in overseeing the ongoing management of the Camelia Business to ensure its continued viability and market value and its rapid and effective divestiture from the rest of P& G's activities (hereafter referred to as "the Trustee"). The Trustee shall simultaneously appoint Goldman Sachs International Ltd ("Goldman Sachs") to act on its behalf in conducting good faith negotiations with interested third parties with a view to selling the Business. P& G shall agree in turn with the Trustee and Goldman Sachs on their respective remuneration, it being understood that part of the remuneration of Goldman Sachs shall consist of a fee related to the consideration of the sale.
2. P& G undertakes that it shall give the Trustee an irrevocable mandate to find a valid purchaser for the Business within [. . .], it being understood that such purchaser shall be a viable existing or prospective competitor independent of and unconnected to P& G and, possessing the financial resources and proven expertise in consumer product markets, enabling it to maintain and develop the Business as an active competitive force in competition to P& G's catamenials business on the various markets concerned. [. . .] P& G shall take all reasonable steps to encourage the relevant personnel currently employed in the Business, including sales and administrative personnel, to take up employment with such independent third party. P& G shall be deemed to have complied with this undertaking if, within this [. . .] period, it has entered into a binding letter of intent for the sale of the Business, provided that such sale is completed within a time limit agreed to by the Commission. P& G undertakes to give, on an arm's length basis, all assistance requested by the Trustee and Goldman Sachs prior to the sale of the Business to a third party.
3. In the reports referred to in paragraph 10 below, the Trustee shall indicate to the Commission whether it believes that a purchaser with which it is proposed to sign a letter of intent fulfils the description of a valid purchaser set out in paragraph 2 above, and it considers that negotiations with such a purchaser should continue. If within one week of receipt of the relevant advice from the Trustee, the Commission does not formally indicate its disagreement with the Trustee's assessment of a purchaser, negotiations with such party as a valid purchaser shall be free to proceed.
4. Providing the offers concerned have been received from purchasers recognized as valid according to the procedure laid down in paragraph 3, P& G alone shall be free to accept any offer or to select the offer it considers best in case of a plurality of offers. The value of any such offers shall be determined by the price offered plus other obligations affecting the value of such offers.
5. Where a binding agreement for the sale of the Business has been signed, the purchaser shall be associated forthwith to any ongoing contractual negotiations for supply of catamenial products with Germany retail distributors in order to ensure that the viability of the Business is preserved. Until such a binding sales agreement exists, the Trustee shall be associated with these negotiations.
6. P& G undertakes that, within the [. . .] period referred to in point 2 above and in any event before the completion of the sale of the business to a third party, the Forchheim plant shall be rendered capable of being transferred to an independent third party and, most particularly, that the Forchheim plant is capable of being managed separately from P& G.
7. Prior to the completion of the sale of the Business to a third party, P& G shall ensure that the Business is managed as a distinct and saleable entity with its own management accounts and a sales and distribution effort for the Business that is separate from P& G's catamenials business and with its own research and development facilities as presently exist under VP's management. P& G further undertakes that the Business shall have its own management composed of ex-VP or other currently non-P& G personnel that shall, under the guidance and control of the Trustee be under instructions to manage it on an independent basis in order to ensure its continued viability, market value and independence from P& G. On the request of the Trustee, P& G shall provide sufficient financial resources to this end in the ordinary course of business. Prior to the completion of the sale of the Business to a third party, P& G shall not integrate the Business into any P& G business unit, nor shall it appoint or second any P& G employee to the Business. P& G also undertakes that it shall make no structural changes to the Business without prior Commission approval.
8. P& G shall not integrate VP's secondary and own-label catamenial business into its own commercial and production structures for catamenials until the sale of the Camelia Business is completed.
9. P& G shall not obtain from the Business management any business secrets, know-how, commercial information, or any other industrial information or property rights of a confidential or proprietary nature relating to the Business.
10. P& G undertakes that it shall cause the Trustee to provide a written report either before a letter of intent is to be signed and in any event on a bi-monthly basis on relevant developments in its negotiations with third parties interested in purchasing the Business, and that such reports, together with supporting documentation, shall be furnished to the Commission. Such supporting documentation shall include a report by the management of the Business on its on-going commercial operations.
11. Without prejudice to the powers of the Commission to ensure enforcement of the above undertakings as conditions and obligations under Article 8 (2) of Regulation (EEC) No 4064/89, any dispute between P& G and the third party purchasing the Business arising out of or in connection with the implementation of these undertakings shall be submitted to independent arbitration to be mutually agreed between P& G and such third party, it being understood that the time needed for such arbitration shall not affect the deadline laid down for the completion of the sale of the Business set out in paragraph 2.'
(187) The Commission is satisfied that P& G's offer to divest a business including the Camelia towel brand will prevent P& G from acquiring a dominant position in Germany and from reinforcing its dominant position in Spain. Post-concentration and post-divestment of Camelia the market structure in Germany and Spain will be as follows, taking into account that P& G will not now divest the non-Camelia business of VPS (137):
" 35-40 20-25 75-80 65-70 5-10 10-15 0 1 40-45 30-35 75-80 65-70 20-25 20-25 1- 5 1- 5 10-15 5-10 1- 5 1 1 1 - - 10-15 20-25 10-15 15-20 5-10 10-15 5-10 10-
As can be seen, P& G will increase its share of the German market by [. . .] to a total share of [. . .] by value with Camelia holding a [. . .] and J& J a [. . .] share. The increase in P& G's market share will be solely attributable to its acquisition of VPS's secondary and store brand business (i.e. non-premium brands) while P& G's existing Always business will be subject to competition from two significant suppliers of branded premium towels. In Spain, P& G's share will increase by less than [. . .]. The Commission has therefore concluded that the commitments offered by P& G in respect of the Camelia-branded feminine hygiene business of VPS are sufficient to prevent the creation or reinforcement of a dominant position on the German and Spanish markets, or indeed elsewhere in the EEA.
(188) If the sale of assets to be divested has not taken place by the end of the time period set out in P& G's commitment, the Commission reserves the right to require that P& G divest all assets and interests of VP Schickedanz, and thereby that P& G and VP Schickedanz be fully separated in order to restore conditions of effective competition, as provided by Article 8 (4) of the Merger Regulation. Furthermore, if any of the obligations accepted by P& G are breached, the Commission reserves the right pursuant to Article 8 (5) to revoke its authorisation decision.
(189) These actions will be taken without prejudice to the Commission's right to impose fines pursuant to Article 14 (2),
HAS ADOPTED THIS DECISION:
Article 1
Subject to the full compliance will all conditions and obligations contained in Procter & Gamble's commitment vis-à-vis the Commission in respect of the Camelia-branded feminine hygiene business of VPS, as set out in recital 186 of this Decision, the concentration notified by Procter & Gamble GmbH on 17 January 1994 relating to the acquisition of VP Schickedanz AG is declared compatible with the common market and the functioning of the EEA Agreement.
Article 2
This Decision is addressed to:
Procter & Gamble GmbH,
Procter & Gamble European Technical Center,
Temselaan 100,
B-1820, Strombeek-Bever.
Done at Brussels, 21 June 1994.
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COMMISSION REGULATION (EC) No 1577/2004
of 8 September 2004
amending the representative prices and additional duties for the import of certain products in the sugar sector fixed by Regulation (EC) No 1210/2004 for the 2004/2005 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 2004/2005 marketing year are fixed by Commission Regulation (EC) No 1210/2004 (3). These prices and duties have last been amended by Commission Regulation (EC) No 1570/2004 (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 1210/2004 for the 2004/2005 marketing year are hereby amended as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 9 September 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 September 2004.
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COUNCIL DIRECTIVE 2004/82/EC
of 29 April 2004
on the obligation of carriers to communicate passenger data
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 62(2)(a) and Article 63(3)(b) thereof,
Having regard to the initiative of the Kingdom of Spain (1),
Whereas:
(1)
In order to combat illegal immigration effectively and to improve border control, it is essential that all Member States introduce provisions laying down obligations on air carriers transporting passengers into the territory of the Member States. In addition, in order to ensure the greater effectiveness of this objective, the financial penalties currently provided for by the Member States for cases where carriers fail to meet their obligations should be harmonised to the extent possible, taking into account the differences in legal systems and practices between the Member States.
(2)
The European Council of 25 and 26 March 2004 adopted a Declaration on combating terrorism stressing the need to expedite examination of measures in this area and take work forward on the proposed Council Directive on the obligation of carriers to communicate passenger data with a view to an early conclusion on this measure.
(3)
It is important to avoid a vacuum in the Community's action in combating illegal immigration.
(4)
As from 1 May 2004 the Council can no longer act on an initiative of a Member State.
(5)
The Council has exhausted all possibilities to obtain in time the opinion of the European Parliament.
(6)
Under these exceptional circumstances the Directive should be adopted without the opinion of the European Parliament.
(7)
The obligations to be imposed on carriers by virtue of this Directive are complementary to those established pursuant to the provisions of Article 26 of the 1990 Schengen Convention implementing the Schengen Agreement of 14 June 1985, as supplemented by Council Directive 2001/51/EC (2), the two types of obligation serving the same objective of curbing migratory flows and combating illegal immigration.
(8)
Without prejudice to the provisions 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 (3), the freedom of the Member States to retain or introduce additional obligations for aircarriers or some categories of other carriers, including information or data in relation to return tickets, whether referred to in this Directive or not, should not be affected.
(9)
In order to combat illegal immigration more effectively and in order to ensure the greater effectiveness of this objective, it is essential that, without prejudice to the provisions of Directive 95/46/EC, account be taken at the earliest opportunity of any technological innovation, especially with reference to the integration and use of biometric features in the information to be provided by the carriers.
(10)
Member States should ensure that in any proceedings brought against carriers which may result in the application of penalties, the rights of defence and the right of appeal against such decisions can be exercised effectively.
(11)
These measures take up the control options set out in the Decision of the Executive Committee of Schengen (SCH/Com-ex (94) 17-rev. 4), aimed at enabling border checks to be increased and providing for sufficient time to enable detailed and comprehensive checks to be carried out on all passengers through the transmission of passenger data to the authorities responsible for carrying out such controls.
(12)
Directive 95/46/EC applies with regard to the processing of personal data by the authorities of the Member States. This means, that whereas it would be legitimate to process the passenger data transmitted for the performance of border checks also for the purposes of allowing their use as evidence in proceedings aiming at the enforcement of the laws and regulations on entry and immigration, including their provisions on the protection of public policy (ordre public) and national security, any further processing in a way incompatible with those purposes would run counter to the principle set out in Article 6(1)(b) of Directive 95/46/EC. Member States should provide for a system of sanctions to be applied in the event of use contrary to the purpose of the present Directive.
(13)
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Directive, and is not bound by it or subject to its application. Given that this Directive builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark shall, in accordance with Article 5 of the said Protocol, decide within a period of six months after the Council has adopted this Directive whether it will implement it in its national law.
(14)
As regards Iceland and Norway, this Directive constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latter's association with the implementation, application and development of the Schengen acquis (4), which fall within the area referred to in Article 1, point E, of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of that Agreement (5).
(15)
The United Kingdom is taking part in this Directive in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and to the Treaty establishing the European Community, and Article 8(2) of Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (6).
(16)
Ireland is taking part in this Directive in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union annexed to the Treaty on European Union and the Treaty establishing the European Community, and Article 6(2) of Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis (7).
(17)
This Directive constitutes an act building upon the Schengen acquis or otherwise related to it within the meaning of Article 3(1) of the 2003 Act of Accession,
HAS ADOPTED THIS DIRECTIVE:
Article 1
Objective
This Directive aims at improving border controls and combating illegal immigration by the transmission of advance passenger data by carriers to the competent national authorities.
Article 2
Definitions
For the purpose of this Directive:
(a)
‘carrier’ means any natural or legal person whose occupation it is to provide passenger transport by air;
(b)
‘external borders’ means the external borders of the Member States with third countries;
(c)
‘border control’ means a check carried out at a border in response exclusively to an intention to cross that border, regardless of any other consideration;
(d)
‘border crossing point’ means any crossing point authorised by the competent authorities for crossing external borders;
(e)
‘personal data’, ‘processing of personal data’ and ‘personal data filing system’ have the meaning as stipulated under Article 2 of Directive 95/46/EC.
Article 3
Data transmission
1. Member States shall take the necessary steps to establish an obligation for carriers to transmit at the request of the authorities responsible for carrying out checks on persons at external borders, by the end of check-in, information concerning the passengers they will carry to an authorised border crossing point through which these persons will enter the territory of a Member State.
2. The information referred to above shall comprise:
-
the number and type of travel document used,
-
nationality,
-
full names,
-
the date of birth,
-
the border crossing point of entry into the territory of the Member States,
-
code of transport,
-
departure and arrival time of the transportation,
-
total number of passengers carried on that transport,
-
the initial point of embarkation.
3. In any case the transmission of the above mentioned data does not discharge the obligations and responsibilities laid down in the provisions of Article 26 of the Schengen Convention for carriers, as supplemented by Directive 2001/51/EC.
Article 4
Sanctions
1. Member States shall take the necessary measures to impose sanctions on carriers which, as a result of fault, have not transmitted data or have transmitted incomplete or false data. Member States shall take the necessary measures to ensure that sanctions are dissuasive, effective and proportionate and that either:
(a)
the maximum amount of such sanctions is not less than EUR 5 000, or than the equivalent national currency at the rate of exchange published in the Official Journal of the European Union on the day on which this Directive enters into force for each journey for which passenger data were not communicated or were communicated incorrectly; or
(b)
the minimum amount of such sanctions is not less than EUR 3 000, or than the equivalent national currency at the rate of exchange published in the Official Journal of the European Union on the day on which this Directive enters into force for each journey for which passenger data were not communicated or were communicated incorrectly.
2. This Directive shall not prevent Member States from adopting or retaining, for carriers which infringe very seriously the obligations arising from the provisions of this Directive, other sanctions, such as immobilisation, seizure and confiscation of the means of transport, or temporary suspension or withdrawal of the operating licence.
Article 5
Proceedings
Member States shall ensure that their laws, regulations and administrative provisions stipulate that carriers against which proceedings are brought with a view to imposing penalties have effective rights of defence and appeal.
Article 6
Data processing
1. The personal data referred to in Article 3(1) shall be communicated to the authorities responsible for carrying out checks on persons at external borders through which the passenger will enter the territory of a Member State, for the purpose of facilitating the performance of such checks with the objective of combating illegal immigration more effectively.
Member States shall ensure that these data are collected by the carriers and transmitted electronically or, in case of failure, by any other appropriate means to the authorities responsible for carrying out border checks at the authorised border crossing point through which the passenger will enter the territory of a Member State. The authorities responsible for carrying out checks on persons at external borders shall save the data in a temporary file.
After passengers have entered, these authorities shall delete the data, within 24 hours after transmission, unless the data are needed later for the purposes of exercising the statutory functions of the authorities responsible for carrying out checks on persons at external borders in accordance with national law and subject to data protection provisions under Directive 95/46/EC.
Member States shall take the necessary measures to oblige carriers to delete, within 24 hours of the arrival of the means of transportation pursuant to Article 3(1), the personal data they have collected and transmitted to the border authorities for the purposes of this Directive.
In accordance with their national law and subject to data protection provisions under Directive 95/46/EC, Member States may also use the personal data referred to in Article 3(1) for law enforcement purposes.
2. Member States shall take the necessary measures to oblige the carriers to inform the passengers in accordance with the provisions laid down in Directive 95/46/EC. This shall also comprise the information referred to in Article 10(c) and Article 11(1)(c) of Directive 95/46/EC.
Article 7
Transposal
1. Member States shall take the necessary measures to comply with this Directive not later than 5 September 2006. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
2. Member States shall communicate the main provisions of national law which they adopt in the field covered by this Directive to the Commission.
Article 8
Entry into force
This Directive shall enter into force 30 days after its publication in the Official Journal of the European Union.
Article 9
Addressees
This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community.
Done at Luxembourg, 29 April 2004.
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*****
COMMISSION REGULATION (EEC) No 773/90
of 29 March 1990
altering the entry price for tomatoes originating in Morocco and the Canary Islands
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3488/89 of 21 November 1989 laying down the method of decision for certain provisions laid down for agricultural products in the framework of the Mediterranean agreements (1), and in particular Article 2 thereof,
Having regard to Council Regulation (EEC) No 1391/87 of 18 May 1987 concerning certain adjustments to the arrangements applied to the Canary Islands (2), and in particular Article 8 thereof,
Whereas, in accordance with the agreements concluded with various Mediterranean third countries, the Community may decide to alter the entry price for certain fruit and vegetables originating in such countries, taking account of the annual reviews of trade flows by product and country pursuant to Council Regulation (EEC) No 451/89 of 20 February 1989 concerning the procedure to be applied to certain agricultural products originating in various Mediterranean third countries (3);
Whereas, in accordance with Article 8 (2) of Regulation (EEC) No 1391/87, the Commission is to decide whether the entry price of tomatoes originating in the Canary Islands should be altered in 1990 in the light of relevant factors regarding the objective of maintaining traditional patterns of export trade in the context of enlargement of the Community;
Whereas an examination of the prospects for export flows from Morocco and the Canary Islands in the light of the overall trend on the Community market points to the need to alter the entry price for tomatoes;
Whereas the alteration of the entry price must relate to the amount to be deducted for customs duties from the representative prices recorded in the Community for the calculation of the entry price of tomatoes as provided for in Article 24 of Council Regulation (EEC) No 1035/72 of 18 May 1972 on the common organization of the market in fruit and vegetables (4), as last amended by Regulation (EEC) No 1119/89 (5); whereas a reduction of one sixth is likely to achieve this objective; whereas such a reduction must apply from 1 April 1990 to the end of May 1990 for Moroccan tomatoes and during the period of application of the reference price system for tomatoes from the Canary Islands within the limit of specified quantities, in accordance with the Mediterranean agreements and Regulation (EEC) No 1391/87;
Whereas, in order to ensure that the system is effective, the trend in imports of such products must be monitored; whereas imports of Moroccan tomatoes should therefore be subject to Community surveillance, imports of tomatoes from the Canary Islands being subject to statistical monitoring in the framework of the management of the tariff quota;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
For the purposes of calculating the entry price provided for in Article 24 (3) of Regulation (EEC) No 1035/72 for fresh tomatoes originating in Morocco and the Canary Islands, the amount to be deducted for customs duties from the representative prices recorded shall be reduced by one sixth during the periods and within the limit of the quantities specified in the Annex hereto.
Article 2
1. Imports of tomatoes originating in Morocco shall be subject to Community surveillance.
2. Quantities shall be set against the ceilings as and when the products have been released for free circulation, accompanied by a movement certificate.
Products may be set against a ceiling only if the movement certificate is presented before the date from which these preferential arrangements no longer apply.
The extent to which a ceiling is used up shall be determined at Community level on the basis of the imports set against it in the manner specified in the first and second subparagraphs.
Member States shall inform the Commission, at the intervals and within the time limits specified in paragraph 4, of imports effected in accordance with the above procedures.
3. As soon as a ceiling has been reached, the Commission shall inform the Member States of the date from which these preferential arrangements cease to apply.
4. Member States shall send the Commission statements of the quantities set against a ceiling for periods of 10 days, to be forwarded within five days from the end of each 10-day period.
5. The Commission may take the requisite administrative measures to adapt the administrative procedures set out in subparagraphs 2, 3 and 4.
Article 3
Imports of tomatoes originating in the Canary Islands shall be subject to the Community surveillance introduced for the management of the annual tariff quota provided for in Article 2 of Regulation (EEC) No 1391/87.
Article 4
The Member States and the Commission shall cooperate closely to ensure that this Regulation is applied.
Article 5
This Regulation shall enter into force on 1 April 1990.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 March 1990.
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COUNCIL DECISION 2009/1004/CFSP
of 22 December 2009
updating the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article 29 thereof,
Whereas:
(1)
On 27 December 2001, the Council adopted Common Position 2001/931/CFSP on the application of specific measures to combat terrorism (1).
(2)
On 15 June 2009, the Council adopted Common Position 2009/468/CFSP updating Common Position 2001/931/CFSP (2).
(3)
In accordance with Article 1(6) of Common Position 2001/931/CFSP, it is necessary to carry out a complete review of the list of persons, groups and entities to which Common Position 2009/468/CFSP applies.
(4)
This Decision sets out the result of the review that the Council has carried out in respect of the persons, groups and entities to which Articles 2, 3 and 4 of Common Position 2001/931/CFSP apply.
(5)
Following the judgment of the Court of First Instance of 30 September 2009 in Case T-341/07, one person has not been included in the list of persons, groups and entities to which Articles 2, 3 and 4 of Common Position 2001/931/CFSP apply.
(6)
The Council has also concluded that the entry concerning one group in the list should be amended.
(7)
The Council has concluded that with the exception of the person referred to in recital (5), the other persons, groups and entities to which Articles 2, 3 and 4 of Common Position 2001/931/CFSP apply have been involved in terrorist acts within the meaning of Article 1(2) and (3) of Common Position 2001/931/CFSP, that a decision has been taken with respect to them by a competent authority within the meaning of Article 1(4) of that Common Position, and that they should continue to be subject to the specific restrictive measures provided for therein.
(8)
The list of the persons, groups and entities to which Articles 2, 3 and 4 of Common Position 2001/931/CFSP apply should be updated accordingly,
HAS ADOPTED THIS DECISION:
Article 1
The list of persons, groups and entities to which Articles 2, 3 and 4 of Common Position 2001/931/CFSP apply shall be that set out in the Annex to this Decision.
Article 2
Common Position 2009/468/CFSP is hereby repealed insofar as it concerns persons, groups and entities to which Articles 2, 3 and 4 of Common Position 2001/931/CFSP apply.
Article 3
This Decision shall enter into force on the day of its publication in the Official Journal of the European Union.
Article 4
This Decision shall be published in the Official Journal of the European Union.
Done at Brussels, 22 December 2009.
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Council Decision
of 17 November 2003
appointing a German member of the Committee of the Regions
(2003/816/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 263 thereof,
Having regard to the proposal from the German Government,
Whereas:
(1) Pursuant to Council Decision 2002/60/EC of 22 January 2002(1) appointing the members and alternate members of the Committee of the Regions.
(2) A seat as a member of the Committee of the Regions has become vacant following the resignation of Mr Reinhold BOCKLET, notified to the Council on 6 November 2003,
HAS DECIDED AS FOLLOWS:
Sole Article
Mr Eberhard SINNER, Staatsminister in der Bayerischen Staatskanzlei für Europaangelegenheiten und regionale Beziehungen, is hereby appointed a member of the Committee of the Regions in place of Mr Reinhold BOCKLET for the remainder of his term of office, which runs until 25 January 2006.
Done at Brussels, 17 November 2003.
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COMMISSION REGULATION (EC) No 519/98 of 5 March 1998 amending Council Regulation (EC) No 934/95, establishing tariff ceilings and a Community statistical surveillance in the framework of reference quantities for a certain number of products originating in Cyprus, Egypt, Jordan, Israel, Tunisia, Syria, Malta, Morocco and the West Bank and the Gaza Strip
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 934/95 of 10 April 1995 establishing tariff ceilings and a Community statistical surveillance in the framework of reference quantities for a certain number of products originating in Cyprus, Egypt, Jordan, Israel, Tunisia, Syria, Malta, Morocco and the West Bank and the Gaza Strip (1), as last amended by Regulation (EC) No 553/97 (2), and in particular Articles 3 and 4 thereof,
Whereas the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part (3), enters into force on 1 March 1998; whereas this agreement provides that certain products originating in Tunisia can benefit from tariff concessions within the framework of reference quantities, when imported into the Community and are subject to a Community statistical surveillance; whereas the agreement provides that the volumes of the reference quantities for these products are increased, between 1 January 1997 and 1 January 2000, in four yearly and equal steps, representing 3 % of these volumes; whereas the increases provided by the agreement for implementation in 1997 could not take place because of the entry into force of the agreement on 1 March 1998 and, consequently, the volumes of the reference quantities applicable in 1998 take account of two increases; whereas the new agreement provides a tariff concession for new potatoes from 1 January to 31 March, in the framework of a community tariff quota, but due to the entry into force of the agreement on 1 March 1998, it seems desirable to maintain for January and February 1998 the current concession for these products in the framework of a reference quantity;
Whereas, as a means of implementing the new concessions provided in the above mentioned agreement, Regulation (EC) No 934/95 should be amended; whereas, for all the products listed in Annex II to Regulation (EC) No 934/95, this amendment must also take account of the necessary technical adjustments resulting from amendments of the Combined Nomenclature and of TARIC subdivisions;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,
HAS ADOPTED THIS REGULATION:
Article 1
Annex II to Regulation (EC) No 934/95 shall be replaced by the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply from 1 January 1998, except for the reference quantities with order numbers 18.0110, 18.0125 and 18.0145, which shall apply from 1 March 1998.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 March 1998.
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Commission Decision
of 12 April 2002
amending Decision 2000/666/EC and Decision 2001/106/EC as regards the establishment of a model for lists of approved quarantine facilities or centres for imports of birds in the Member States
(notified under document number C(2002) 1402)
(Text with EEA relevance)
(2002/279/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 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(1), as last amended by Commission Decision 95/176/EC(2), and in particular Article 17(3)(c) and Article 18(1) fourth indent thereof,
Whereas:
(1) Commission Decision 2000/666/EC(3), as last amended by Decision 2001/383/EC(4), laid down the animal health and certification requirements for the imports of birds other than poultry, and the conditions for their quarantine.
(2) Several Member States have experienced practical problems in the implementation of the above import requirements, in particular with the procedure at the border inspection post due to the lack of knowledge about approved quarantine facilities or centres in other Member States.
(3) It is therefore necessary that a list of approved quarantine facilities and centres is drawn up by Member States, which should be communicated to the Commission and the Member States.
(4) Commission Decision 2001/106/EC(5) established a model for lists of assembly centres for live animals, semen collection centres and embryo collection teams in Member States and the way of transmission of these lists; it is convenient and appropriate to broaden the scope of that Decision in order to include the approved quarantine facilities or centres for imported birds other than poultry.
(5) Decisions 2000/666/EC and 2001/106/EC have to be amended accordingly.
(6) The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Decision 2000/666/EC is amended as follows:
1. The text in Article 2(4) shall be replaced by the following: "The birds are transported to an approved quarantine facility or centre which appears on the list as laid down in Article 2(5) and the importer has provided written information in the language of the Member State of entry by the responsible person for the quarantine facility or centre that the birds will be accepted for quarantine. This information shall clearly indicate the name and address and approval number of the quarantine facility or centre and shall reach the border inspection post via e-mail or fax prior to arrival of the consignment at the border inspection post or shall be presented by the importer or his agent before the birds are released from the border inspection post."
2. In Article 2 the following shall be added as point 5: "5. Member States communicate the list of approval numbers of the approved quarantine facilities or centres and the name and ANIMO-number of the responsible Local Veterinary Unit to the other Member States and to the Commission as well as changes to that list, in accordance with the provisions of Decision 2001/106/EC."
3. In Article 3(4) the following sentence shall be added: "This approval shall be withdrawn when these conditions cease to be met."
4. In Article 4(2) the words "not less than seven days and not more than" shall be replaced by the word "within".
5. Annex A to Decision 2000/666/EC shall be replaced by the Annex to this Decision.
Article 2
Decision 2001/106/EC is amended as follows:
1. The title is replaced by the following text: "Commission Decision 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".
2. In Annex I a new point 4 is added: "4. Bird quarantine facilities or centres approved in accordance with Article 18(1) fourth indent of Directive 92/65/EEC and Decision 2000/666/EC."
3. In Annex II a new point IV is added:
PIC FILE= "L_2002099EN.001801.TIF "
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 12 April 2002.
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Commission Decision
of 5 July 2002
for the implementation of a Bluetongue vaccination programme in Italy and the purchase of vaccine for this purpose
(notified under document number C(2002) 2525)
(Only the Italian text is authentic)
(2002/545/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 2000/75/EC [1] laying down specific provisions for the control and eradication of Bluetongue and in particular Article 9(2),
Having regard to Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field [2], as last amended by Council Decision 2001/572/EC [3], and in particular Article 3(3) and (5),
Whereas:
(1) During 2000 Bluetongue outbreaks were notified in different Italian regions: Sardinia, Sicily and Calabria.
(2) During 2001 the disease reappeared in those regions and extended up north to new areas in Tuscany and Lazio.
(3) The loss due to those two outbreaks can be estimated to about 300000 sheep.
(4) The Italian authorities postponed the vaccination campaign which was supposed to be carried out in 2001.
(5) In 2002 Italy is in a situation to start this vaccination campaign in all the affected regions and the neighbouring ones.
(6) The objective of this campaign is to prevent further sheep mortality and a spread of the disease to the rest of the territory of the Community, by interrupting the virus circulation in the protection zone demarcated around the outbreaks.
(7) In addition to the vaccine already furnished by the Commission or directly purchased by Italy, the amount of vaccine still needed for the 2002 campaign is of 4200000 doses of monovalent 2 and of 2300000 doses of monovalent 9.
(8) Up to now, no Bluetongue vaccine has been produced by the pharmaceutical industry based in the Member States and the Onderstepoort laboratory in South Africa is the only laboratory which may produce that vaccine type.
(9) Nevertheless the Italian institute of Teramo (IZS) could be soon in a situation to produce, for the first time in Europe, a monovalent serotype 9 vaccine which could be used in place of the vaccine produced in South Africa.
(10) Pursuant to Article 3(2) of Council Regulation (EC) No 1258/1999 [4], veterinary and plant-health measures undertaken in accordance with Community rules shall be financed under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund; for financial control purposes, Articles 8 and 9 of Council Regulation (EC) No 1258/1999 apply.
(11) The financial contribution from the Community shall be granted provided that the actions planned are efficiently carried out and that the authorities supply all the necessary information within the time limits laid down.
(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,
HAS ADOPTED THIS DECISION:
Article 1
Italy shall implement and complete during the course of 2002 a vaccination programme against Bluetongue in the following areas:
- the whole territory of Sardinia, Calabria, Sicily and Basilicate,
- in Campania, the whole province of Salerno and a band 20 km wide along the coast of Caserta and Napoli provinces,
- in Puglia the whole provinces of Lecce, Brindisi and Taranto,
- in Lazio, a circle of a 20 km radius around places where virus circulation is detected in Roma and Viterbo provinces and a band 20 km wide along the coast in Latina and Frosinone provinces,
- In Tuscany, a circle of a 20 km radius around places where virus circulation is detected in Grosseto and Siena provinces and a band 20 km wide along the coast of Massa Carrara, Lucca, Pisa and Livorno provinces.
Article 2
For the implementation of the programme referred to in Article 1, the financial assistance from the Community will cover the purchase by Italy of 4200000 doses of monovalent vaccine serotype 2 and 2300000 doses of monovalent vaccine serotype 9.
Article 3
The maximum cost of the measures referred to in Article 2 shall be EUR 700000.
Article 4
The Commission may carry out on-the-spot checks in collaboration with the competent national authorities to ensure that the programme has been implemented.
The Commission shall inform the Member States of the outcome of these checks.
Article 5
The financial contribution of the Community for the programme referred to under Article 1 shall be granted subject to:
(a) bringing into force the laws, regulations and administrative provisions by the Member State concerned for implementing the programme,
(b) forwarding a final report by 31 July 2002 at the latest on the technical execution of the programme accompanied by justifying evidence as to the costs incurred and the results attained,
(c) implementing the programme efficiently, and provided that Community veterinary legislation has been respected.
Article 6
This Decision is addressed to the Italian Republic.
Done at Brussels, 5 July 2002.
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COMMISSION DECISION of 23 April 1996 adjusting the weightings applicable from 1 December 1994 to the remuneration of officials of the European Communities serving in third countries (96/330/Euratom, ECSC, EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing a Single Council and a Single Commission of the European Communities,
Having regard to the Staff Regulations of the Officials of the European Communities and the conditions of employment of other servants of the Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/68 (1), as last amended by Regulation (EC, Euratom, ECSC) No 2963/95 (2), and in particular the second paragraph of Article 13 of Annex X thereto,
Whereas, pursuant to the first paragraph of Article 13 of Annex X to the Staff Regulations, Council Regulation (Euratom, ECSC, EC) No 577/96 (3) laid down the weightings to be applied from 1 July 1994 to the remuneration of officials serving in third countries, payable in the currency of their country of employment;
Whereas the Commission has made a number of adjustments to these weightings in recent months, pursuant to the second paragraph of Article 13 of Annex X to the Staff Regulations (4);
Whereas some of these weightings should be adjusted with effect from 1 December 1994 given that the statistics available to the Commission show that in certain third countries the variation in the cost of living measured on the basis of the weighting and the corresponding exchange rate has exceeded 5 % since weightings were last laid down,
HAS DECIDED AS FOLLOWS:
Sole Article
With effect from 1 December 1994 the weightings applicable to the remuneration of officials serving in third countries payable in the currency of their country of employment are adjusted as shown in the Annex.
The exchange rates for the calculation of such remuneration shall be those used for implementation of the general budget of the European Union for the month preceding the date referred to in the first paragraph.
Done at Brussels, 23 April 1996.
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COMMISSION REGULATION (EEC) No 1547/88
of 3 June 1988
amending Regulation (EEC) No 610/77 on the determination of prices of adult bovine animals on representative Community markets and the survey of prices of certain other cattle in 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 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 3905/87 (2), and in particular Article 12 (7) thereof,
Whereas the information available on the trend in cattle numbers indicates that the coefficients used in calculating the price of adult bovine animals on the representative markets of the Community should be adjusted;
Whereas Annex I to Commission Regulation (EEC) No 610/77 (3), as last amended by Regulation (EEC) No 3003/87 (4), should therefore be amended;
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
Annex I to Regulation (EEC) No 610/77 is replaced by the Annex hereto.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply for the purposes of calculating the levies in force from 4 July 1988.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 June 1988.
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COMMISSION REGULATION (EEC) No 3116/89
of 17 October 1989
amending Regulation No 163/67/EEC on fixing the additional amount for imports of poultry-farming products from third countries
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2771/75 of 29 October 1975 on the common organization of the market in eggs (1), as last amended by Regulation (EEC) No 1235/89 (2), and in particular Article 8 (4) thereof,
Having regard to Council Regulation (EEC) No 2777/75 of 29 October 1975 on the common organization of the market in poultrymeat (3), as last amended by Regulation (EEC) No 1235/89, and in particular Article 8 (4) thereof,
Having regard to Council Regulation (EEC) No 2783/75 of 29 October 1975 on the common system of trade for ovalbumin and lactalbumin (4), as amended by Regulation (EEC) No 4001/87 (5), and in particular Article 5 (5) thereof,
Having regard to Council Regulation (EEC) No 1676/85 of 11 June 1985 on the value of the unit of account and the conversion rates to be applied for the purposes of the common agricultural policy (6), as last amended by Regulation (EEC) No 1636/87 (7),
Whereas Article 8 of Regulations (EEC) No 2771/75 and (EEC) No 2777/75 and Article 5 of Regulation (EEC) No 2783/75 make provision for fixing amounts additional to import levies on the poultry-farming products concerned where the free-at-frontier offer price is less than the sluice-gate price; whereas the detailed rules for determining the free-at-frontier offer price are laid down in Article 1 of Commission Regulation No 163/67/EEC (8), as amended by Regulation (EEC) No 1527/73 (9);
Whereas, in order to facilitate administrative procedures and preclude the risk of market distortion, offer prices and sluice-gate prices should be compared in ecus and the free-at-frontier price should therefore be expressed in ecus using the conversion rate referred to in Article 3a of Commission Regulation (EEC) No 3152/85 of 11 November 1985 laying down detailed rules for the application of Council Regulation (EEC) No 1676/85 of 11 June 1985 on the value of the unit of account and the conversion rates to be applied for the purposes of the common agricultural policy (10), as last amended by Regulation (EEC) No 2300/89 (11);
Whereas the measures provided for in this Regulation are in accordance with the opinion of the relevant management committees,
HAS ADOPTED THIS REGULATION:
Article 1
The following paragraph 3 is added to Article 1 of Regulation No 163/67/EEC:
'3. The offer price shall be expressed in ecus on the basis of the prices referred to in paragraph 2, recorded in the national currency of the Member State concerned and converted into ecus using the rates referred to in Article 3a of Commission Regulation (EEC) No 3152/85 (*), applying on the day the prices in question are recorded.
However, where the prices referred to in paragraph 2 relate to a monthly period, they shall be converted into ecus using the monthly average of the rates in question.
(*) OJ No L 310, 21. 11. 1985, p. 1.'
Article 2
This Regulation shall enter into force on 31 October 1989.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 October 1989.
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COMMISSION DECISION
of 13 October 1999
amending Decision 92/469/EEC authorising methods for grading pig carcases in Denmark
(notified under document number C(1999) 3279)
(Only the Danish text is authentic)
(1999/699/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3220/84 of 13 November 1984 determining the Community scale for grading pig carcases(1), as last amended by Regulation (EC) No 3513/93(2), and in particular Article 5(2) thereof,
(1) Whereas the Commission, by Decision 92/469/EEC(3), as last amended by Decision 98/283/EC(4), has authorised different methods for grading pig carcases in Denmark;
(2) Whereas the Danish Government has requested the Commission to authorise the use of new formulae for calculating the lean meat content of dehided carcases under the existing grading methods "KC" and "FOM/MK"; whereas the information required pursuant to Article 3 of Commission Regulation (EEC) No 2967/85 of 24 October 1985 laying down detailed rules for the application of the Community scale for grading pig carcases(5) as amended by Regulation (EC) No 3127/94(6) has been submitted; whereas evaluation of the request has shown the conditions for authorising the new formulae to be fulfilled;
(3) Whereas Decision 92/469/EEC should be amended accordingly;
(4) Whereas the measures provided for in this Decision are in accordance with the opinion of the Management Committee for Pigmeat,
HAS ADOPTED THIS DECISION:
Article 1
Decision 92/469/EEC is hereby amended as follows:
1. Article 2 is replaced by the following text:
"Article 2
Notwithstanding the standard presentation referred to in Article 2 of Regulation (EEC) No 3220/84, pig carcases may be dehided before being weighed and graded, whereby the forecast are cut just above the os carpi accessorium and the hindfeet just below the calcaneum. Dehided carcases have to be graded by the apparatus KC or the apparatus FOM/MK, using the special formulae provided for in Parts 1 and 2 of the Annex. The warm carcase weight (excluding flat fat, kidneys and diaphragm) of those carcases is calculated according to the following formula:
warm carcases weight = 5,83 + 1,037 × weight of the dehided carcase".
2. Part 1 of the Annex is amended as follows:
The formula under point 3(b) is replaced by the following:
REFERENCE TO A GRAPHIC ".
3. Part 2 of the Annex is amended as follows:
The formula under point 3(b) is replaced by the following:
REFERENCE TO A GRAPHIC ".
Article 2
This Decision is addressed to the Kingdom of Denmark.
Done at Brussels, 13 October 1999.
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COUNCIL REGULATION (EC) No 1893/95 of 29 June 1995 relating to the conclusion of the Protocol setting out the fishing opportunities and financial consideration provided for in the Agreement between the European Economic Community and the Islamic Federal Republic of the Comoros on fishing off Comoros for the period 20 July 1994 to 19 July 1997
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 43 thereof in conjunction with the first sentence of Article 228 (2) and the first subparagraph of Article 228 (3),
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Whereas, in accordance with the Agreement between the European Economic Community and the Islamic Federal Republic of the Comoros on fishing off Comoros (2), the two 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 annexed thereto;
Whereas, as a result of those negotiations, a new Protocol defining the fishing opportunities and financial consideration provided for in the abovementioned Agreement for the period from 20 July 1994 to 19 July 1997 was initialled on 18 July 1994;
Whereas it is in the Community's interest to approve the said Protocol,
HAS ADOPTED THIS REGULATION:
Article 1
The Protocol setting out the fishing opportunities and financial consideration provided for in the Agreement between the European Economic Community and the Islamic Federal Republic of the Comoros on fishing off Comoros for the period 20 July 1994 to 19 July 1997 is hereby approved on behalf of the Community.
The text of the Protocol is attached hereto.
Article 2
The President of the Council is hereby authorized to designate the persons empowered to sign the Protocol in order to bind the Community.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 29 June 1995.
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COMMISSION REGULATION (EC) No 2278/1999
of 21 October 1999
laying down certain detailed rules for the application of Council Regulation (EEC) No 3528/86 on the protection of the Community's forests against atmospheric pollution
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3528/86 of 17 November 1986 on the protection of the Community's forests against atmospheric pollution(1), as last amended by Regulation (EC) No 307/97(2), and in particular Articles 2 and 4 thereof,
Whereas:
(1) Regulation (EEC) No 3528/86 provides for a financial contribution from the Community to measures under the Community scheme for the protection of forests against atmospheric pollution.
(2) Article 12 of that Regulation stipulates that the Community's contribution is to cover the periodic inventory of damage caused to forests, in particular by atmospheric pollution, the network of observation points for intensive and continuous monitoring of the forest ecosystems, experiments, and pilot and demonstration projects to improve the protection of forests against atmospheric pollution.
(3) In the interests of effectiveness and in order to simplify and rationalise procedures at national and Community level, the various measures for which Community financial assistance is requested should be brought together in an annual national programme for each Member State.
(4) Detailed rules should be adopted on how aid applications under the national programmes should be presented and the information they must contain in order to expedite examination thereof.
(5) A system of advance payments of Community assistance should be introduced to assist Member States in the proper financial management of their national programmes.
(6) The applications submitted to the Commission by the competent authority for the payment of advances and balances under the national programme must contain certain information to help establish the regularity of expenditure.
(7) The Commission must be informed that the measures are being implemented in accordance with the conditions and within the time limit laid down in the decision granting aid.
(8) The Member States must adopt the provisions necessary to ensure that effective checks are carried out on the implementation of measures under the national programmes.
(9) Article 14 of Regulation (EEC) No 3528/86 and Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities' financial interests(3) require the Member States to ascertain the effective and regular nature of the operations financed by the Community and to recover sums lost as a result of irregularities or negligence. Such sums represent unjustified expenditure from the Community budget and must therefore be reimbursed to the Community.
(10) If the checks provided for in Article 14 of Regulation (EEC) No 3528/86 carried out by the Commission reveal an irregularity, the Member State must be able to express its opinion on the situation noted. Where the irregularity is confirmed and the sums concerned represent unjustified expenditure from the Community budget, they should be reimbursed to the Community.
(11) Commission Regulation (EEC) No 526/87(4), Article 2 of Commission Regulation (EEC) No 1696/87(5) as last amended by Regulation (EC) No 1398/95(6) and Article 2 of Commission Regulation (EC) No 1091/94(7), as last amended by Regulation (EC) No 1545/1999(8) should be repealed.
(12) The Commission Regulation (EEC) No 1697/87(9) of 10 June 1987 should also be repealed. That Regulation remains applicable to the payment of Community financial contributions under Regulation (EEC) No 3528/86 decided before 1 November 1999.
(13) The measures provided for in this Regulation are in accordance with the opinion of the Standing Forestry Committee,
HAS ADOPTED THIS REGULATION:
Article 1
1. The measures provided for in Articles 2 and 4 of Regulation (EEC) No 3528/86 shall be implemented under programmes to be drawn up each year by the Member States. National programmes must cover all the applications for assistance submitted under those Articles. They must contain the information and supporting documents indicated in Annex I to this Regulation and relate to the information specified in Article 2. Each year, before 1 November, the Member States shall send the Commission their programmes for the next year in duplicate.
2. National programmes as referred to in paragraph 1 must be completed not later than three years after the date of notification of the Commission Decision on financing and may not be extended.
Article 2
Programmes as referred to in Article 1 must also comprise:
- a schedule of the supporting documents to be provided by beneficiaries; "supporting documents" means any document drawn up in accordance either with the laws or regulations of the Member State concerned, or with measures adopted by the competent authority, which afford evidence that the conditions attached to each individual application have been met. The schedule shall give the description of each document and the provisions or measures under which it is drawn up and a brief description of the content of such documents;
- specimens of the forms on which beneficiaries are to submit their applications for payment. Such forms must include at least a summary of the expenditure incurred and a comparative table giving a qualitative and quantitative description of the measures provided for and those implemented;
- a description of the checking and management methods put in place to ensure the effective implementation of measures under the programme, pursuant to Article 14 of Regulation (EEC) No 3528/86.
Member States shall also notify the Commission of subsequent updates of the documentation referred to in this Article.
Article 3
1. In accordance with Article 13 of Regulation (EEC) No 3528/86, the Member State shall designate the competent authority empowered to carry out the programme.
2. The competent authorities may apply for an advance of up to 50 % of the Community assistance to the national programme not earlier than 1 January of the year following the date of notification of the Commission Decision on the financing of the programme.
3. Competent authorities may apply for a second advance of not more than 30 % once they have furnished proof that 60 % of the first advance for the same programme has been utilised.
4. The balance shall be paid after the Commission has received and approved the final report, a definitive financial statement and the application for the final payment for the national programme.
Article 4
1. From 1 July of the year following the date of notification of the Commission Decision on the financing of the programme, the competent authorities shall forward six-monthly statements of the payments made to beneficiaries, in accordance with Annex II and accompanied by a statement describing the state of progress of the work.
2. The competent authorities must submit applications for the payment of advances and balances for the national programme to the Commission, in duplicate, in accordance with Annex III hereto.
Article 5
1. Any amounts lost through irregularities or negligence and recovered by a Member State shall be reimbursed to the Community.
2. Should the Commission, within four years following payment of the balance, note any irregularity in an operation financed by the Community where the amount concerned has not been reimbursed to the Community under paragraph 1, it shall inform the Member State thereof and give it an opportunity to comment.
3. If analysis of the situation and any comments by the Member State result in the Commission confirming the irregularity, the Member State shall reimburse the amounts concerned.
Article 6
Regulation (EEC) No 526/87, Article 2 of Regulation (EEC) No 1696/87 and Article 2 of Regulation (EC) No 1091/94 are repealed.
Article 7
Regulation (EEC) No 1697/87 is repealed. However, it shall continue to apply to the payment of Community financial contributions under Regulation (EEC) No 3528/86 decided before 1 November 1999.
Article 8
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, 21 October 1999.
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COUNCIL REGULATION (EC) No 15/2009
of 8 January 2009
amending Regulation (EC) No 367/2006 imposing a definitive countervailing duty on imports of polyethylene terephthalate (PET) film originating in India and amending Regulation (EC) No 1292/2007 imposing a definitive anti-dumping duty on imports of polyethylene terephthalate (PET) film originating in India
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidised imports from countries not members of the European Community (1) (the basic Regulation), and in particular Articles 19 and 24 thereof,
Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,
Whereas:
A. PROCEDURE
I. Previous investigation and existing countervailing measures
(1)
In December 1999, by Regulation (EC) No 2597/1999 (2), the Council imposed a definitive countervailing duty on imports of polyethylene terephthalate (PET) film (the product concerned) falling within CN codes ex 3920 62 19 and ex 3920 62 90, originating in India. The investigation which led to the adoption of that Regulation is hereinafter referred to as the ‘original investigation’. The measures took the form of an ad valorem countervailing duty, ranging between 3,8 % and 19,1 % imposed on imports from individually named exporters, with a residual duty rate of 19,1 % imposed on imports of the product concerned from all other companies. The investigation period of the original investigation was 1 October 1997 to 30 September 1998.
(2)
In March 2006, by Regulation (EC) No 367/2006 (3), the Council, following an expiry review pursuant to Article 18 of the basic Regulation, maintained the definitive countervailing duty imposed by Regulation (EC) No 2597/1999 on imports of PET film originating in India. The review investigation period was 1 October 2003 to 30 September 2004.
(3)
In August 2006, by Regulation (EC) No 1288/2006 (4), the Council, following an interim review concerning the subsidisation of an Indian PET film producer, Garware Polyester Limited (Garware), amended the definitive countervailing duty imposed on Garware by Regulation (EC) No 367/2006.
(4)
In September 2007, by Regulation (EC) No 1124/2007 (5), the Council, following a partial interim review concerning the subsidisation of another Indian PET film producer, Jindal Poly Films, Limited, formerly known as Jindal Polyester Ltd, (Jindal), amended the definitive countervailing duty imposed on Jindal by Regulation (EC) No 367/2006.
II. Existing anti-dumping measures
(5)
In August 2001, by Regulation (EC) No 1676/2001 (6), the Council imposed a definitive anti-dumping duty on imports of polyethylene terephthalate (PET) film originating, inter alia, in India. The measures consisted of an ad valorem anti-dumping duty ranging between 0 % and 62,6 % imposed on imports from individually named exporters, with a residual duty rate of 53,3 % on imports from all other companies.
(6)
In March 2006, by Regulation (EC) No 366/2006 (7), the Council amended the level of dumping margins calculated by Regulation (EC) No 1676/2001. The new dumping margins range between 3,2 % and 29,3 % and the new dumping duty range between 0 % and 18 % taking into account the countervailing duties resulting from export subsidies imposed on the same products originating in India, as modified according to Regulation (EC) No 367/2006, which was adopted following an expiry review of Regulation (EC) No 2579/1999 referred to in recital 1 above. In August 2006, by Regulation (EC) No 1288/2006, the Council, following an interim review concerning the subsidisation of an Indian PET film producer, Garware Polyester Limited (Garware), amended the definitive anti-dumping duty imposed on Garware by Regulation (EC) No 1676/2001.
(7)
In September 2006, by Regulation (EC) No 1424/2006 (8), the Council, following a new exporting producer request amended Regulation (EC) No 1676/2001 in respect of SRF Limited. The Regulation established a dumping margin of 15,5 % and a dumping duty rate of 3,5 % for the company concerned taking into account the company’s export subsidy margin as ascertained in the anti-subsidy investigation which led to the adoption of Regulation (EC) No 367/2006 referred to above. Since the company did not have an individual countervailing duty, the rate established for all other companies was applied.
(8)
The Council, by Regulation (EC) No 1292/2007 (9) imposed a definitive anti-dumping duty on imports of polyethylene terephthalate (PET) film originating in India following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (10) (the basic anti-dumping Regulation). The same Regulation terminated a partial interim review of such imports limited to one India exporter pursuant to Article 11(3) of the basic anti-dumping Regulation.
III. Initiation of a partial interim review
(9)
Following the extension of the validity of the definitive countervailing duty in March 2006, the Government of India (GOI) made submissions that the circumstances with regard to two subsidy schemes (the Duty Entitlement Passbook Scheme and the Income Tax Exemption under Section 80 HHC of the Income Tax Act) had changed and that these changes were of a lasting nature. Consequently, it was argued that the level of subsidisation was likely to have decreased and thus measures that had been established partly on these schemes should be revised.
(10)
The Commission examined the evidence submitted by the GOI and considered it sufficient to justify the initiation of a review in accordance with the provisions of Article 19 of the basic Regulation. After consultation of the Advisory Committee, the Commission initiated, by a Notice of Initiation published in the Official Journal of the European Union on 12 October 2007 (11), an ex officio partial interim review limited to the level of subsidisation of the countervailing duty in force in respect of imports of polyethylene terephthalate (PET) film originating in India.
(11)
The purpose of the partial interim review investigation is to assess the need for the continuation, removal or amendment of the existing measures in respect of those companies which benefited from one or both subsidy schemes that had allegedly changed, where sufficient evidence was provided in line with the relevant provisions of the Notice of Initiation. The partial interim review investigation would also assess the need, depending on the review findings, to revise the measures applicable to other companies that cooperated in the investigation that set the level of the existing measures and/or the residual measure applicable for all other companies.
(12)
The review was limited to the level of subsidisation of the companies listed in the Annex to the Notice of Initiation as well as to other exporters that were invited to make themselves known under the conditions and within the time limit set out in the Notice of Initiation.
IV. Investigation period
(13)
The investigation of the level of subsidisation covered the period from 1 October 2006 to 30 September 2007 (‘review investigation period’ or ‘RIP’).
V. Parties concerned by the investigation
(14)
The Commission officially informed the GOI and those Indian exporting producers who cooperated in the previous investigation, were mentioned under Regulation (EC) No 367/2006 and were listed in the Annex to the Notice of Initiation of the partial interim review, that were found to benefit from any of the two allegedly changed subsidy schemes, as well as Du Pont Tejin Films, Luxembourg, Mitsubishi Polyester Film, Germany, Toray Plastics Europe, France and Nurell, Italy, which represent the overwhelming majority of Community PET film production (hereinafter the Community industry), of the initiation of the partial interim review investigation. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set out in the Notice of Initiation.
(15)
All interested parties, who so requested and showed that there were particular reasons why they should be heard, were granted a hearing.
(16)
The written and oral comments submitted by the parties were considered and, where appropriate, taken into account.
(17)
In view of the apparent number of parties involved in this review, the use of sampling techniques for the investigation of subsidisation was envisaged in accordance with Article 27 of the basic Regulation. In order to enable the Commission to decide whether sampling would be necessary and, if so, to select a sample, exporting producers were requested, pursuant to Article 27 of the basic Regulation, to make themselves known within 15 days of the initiation of the partial interim review and to provide the Commission with the information requested in the Notice of Initiation.
(18)
After examination of the information submitted, given the number of exporting producers in India indicating their willingness to cooperate, it was decided that sampling was not necessary in this case.
(19)
One company, SRF Limited, not listed in the Annex to the Notice of Initiation, made itself known and provided evidence that it fulfilled the eligibility provisions of the scope of the partial interim review investigation as those set out in point 4 of the Notice of Initiation. Consequently this company was included in this review investigation.
(20)
One company, Flex Industries Limited, subject to a countervailing duty (Regulation (EC) No 367/2006) and an anti-dumping duty (Regulation (EC) No 1292/2007) has changed its name and is now known as Uflex Limited. This change of name does not affect the findings of previous investigations.
(21)
In order to obtain the information necessary for its investigation, the Commission sent questionnaires to the exporting producers which fulfilled the conditions set out in the Notice of Initiation. In addition, a questionnaire was sent to the GOI.
(22)
Replies from the questionnaires were received from five Indian exporting producers, and from the GOI.
(23)
The Commission sought and verified all information it deemed necessary for the determination of subsidisation. Verification visits were carried out at the premises of GOI in Delhi, the Government of Maharashtra in Mumbai, the Reserve Bank of India in Mumbai, and the following companies:
-
Ester Industries Limited, New Delhi,
-
Garware Polyester Limited, Mumbai,
-
Polyplex Corporation Limited, Noida,
-
SRF Limited, Gurgaon,
-
Uflex Limited, Noida.
VI. Disclosure and comments on procedure
(24)
The GOI and the other interested parties were informed of the essential facts and considerations upon which it was intended to propose to amend the duty rates applicable to the concerned cooperating Indian exporting producers and prolong existing measures for all other companies which did not cooperate with this partial interim review. They were also given a reasonable time to comment. All submissions and comments were taken duly into consideration as set out below.
B. PRODUCT CONCERNED
(25)
The product covered by this review is the same product as the one concerned by Regulation (EC) No 367/2006, namely polyethylene terephthalate (PET) film falling within CN codes ex 3920 62 19 and ex 3920 62 90 originating in India.
C. SUBSIDISATION
1. Introduction
(26)
On the basis of the information submitted by the GOI and the cooperating Indian exporting producers and the replies to the Commission’s questionnaire, the following schemes, which allegedly involve the granting of subsidies, were investigated:
(a)
Advance Authorisation Scheme (formerly known as Advance Licence Scheme);
(b)
Duty Entitlement Passbook Scheme;
(c)
Export Promotion Capital Goods Scheme;
(d)
Special Economic Zones/Export Processing Zones/Export Oriented Units;
(e)
Income Tax Exemption Scheme;
(f)
Export Credit Scheme;
(g)
Package Scheme of Incentives (PSI).
(27)
The schemes (a) to (d) specified above are based on the Foreign Trade (Development and Regulation) Act 1992 (No 22 of 1992) which entered into force on 7 August 1992 (Foreign Trade Act). The Foreign Trade Act authorises the GOI to issue notifications regarding the export and import policy. These are summarised in ‘Export and Import Policy’ documents, which are issued by the Ministry of Commerce every five years and updated regularly. One Export and Import Policy document is relevant to the RIP of this case, i.e. the five-year plan relating to the period 1 September 2004 to 31 March 2009 (EXIM-policy 04-09). In addition, the GOI also sets out the procedures governing the EXIM-policy 04-09 in a ‘Handbook of Procedures - 1 September 2004 to 31 March 2009, Volume I’ (HOP I 04-09). The Handbook of Procedure is also updated on a regular basis.
(28)
The Income Tax Scheme specified above under (e) is based on the Income Tax Act of 1961, which is amended yearly by the Finance Act.
(29)
The Export Credit Scheme specified above under (f) is based on sections 21 and 35A of the Banking Regulation Act 1949, which allow the Reserve Bank of India (RBI) to direct commercial banks in the field of export credits.
(30)
The scheme specified above under (g) is managed by State authorities in India.
(31)
In accordance with Article 11(10) of the basic Regulation, the Commission invited the GOI for additional consultations with respect to both changed and unchanged schemes with the aim of clarifying the factual situation as regards the alleged schemes and arriving at a mutually agreed solution. Following these consultations, and in the absence of a mutually agreed solution in relation to these schemes, the Commission included all these schemes in the investigation of subsidisation.
(32)
Following disclosure, the GOI and one exporting producer argued that it has not been determined that the schemes investigated confer a benefit to the recipient. In addressing this claim, it should be noted that for each scheme under investigation, it was established whether any concession is a subsidy within the meaning of Article 2(1)(a) and Article 2(2) of the basic Regulation, i.e. a financial contribution of the GOI which conferred a benefit upon the investigated exporting producers. Moreover, it has been explained why benefits under the various schemes are considered countervailable. In addition, all cooperating exporting producers have received a detailed calculation sheet explaining how the benefits were established under each scheme. Consequently, this claim has to be rejected.
2. Advance Authorisation Scheme (AAS)
(a) Legal basis
(33)
The detailed description of the scheme is contained in paragraphs 4.1.1 to 4.1.14 of the EXIM-policy 04-09 and chapters 4.1 to 4.30 of the HOP I 04-09. This scheme was called Advance Licence Scheme during the previous review investigation that led to the imposition by Regulation (EC) No 367/2006 of the definitive countervailing duty currently in force.
(b) Eligibility
(34)
The AAS consists of six sub-schemes, as described in more detail in recital 35. Those sub-schemes differ, inter alia, in the scope of eligibility. Manufacturer-exporters and merchant-exporters ‘tied to’ supporting manufacturers are eligible for the AAS physical exports and for the AAS for annual requirement. Manufacturer-exporters supplying the ultimate exporter are eligible for AAS for intermediate supplies. Main contractors which supply to the ‘deemed export’ categories mentioned in paragraph 8.2 of the EXIM-policy 04-09, such as suppliers of an export oriented unit (EOU), are eligible for AAS deemed export. Eventually, intermediate suppliers to manufacturer-exporters are eligible for ‘deemed export’ benefits under the sub-schemes Advance Release Order (ARO) and back-to-back inland letter of credit.
(c) Practical implementation
(35)
Advance authorisations can be issued for:
(i)
Physical exports: This is the main sub-scheme. It allows for duty-free import of input materials for the production of a specific resulting export product. ‘Physical’ in this context means that the export product has to leave Indian territory. An import allowance and export obligation including the type of export product are specified in the licence;
(ii)
Annual requirement: Such an authorisation is not linked to a specific export product, but to a wider product group (e.g. chemical and allied products). The licence holder can - up to a certain value threshold set by its past export performance - import duty free any input to be used in manufacturing any of the items falling under such a product group. It can choose to export any resulting product falling under the product group using such duty-exempt material;
(iii)
Intermediate supplies: This sub-scheme covers cases where two manufacturers intend to produce a single export product and divide the production process. The manufacturer-exporter who produces the intermediate product can import duty-free input materials and can obtain for this purpose an AAS for intermediate supplies. The ultimate exporter finalises the production and is obliged to export the finished product;
(iv)
Deemed exports: This sub-scheme allows a main contractor to import inputs free of duty which are required in manufacturing goods to be sold as ‘deemed exports’ to the categories of customers mentioned in paragraph 8.2.(b) to (f),(g),(i) and (j) of the EXIM policy 04-09. According to the GOI, deemed exports refer to those transactions in which the goods supplied do not leave the country. A number of categories of supply is regarded as deemed exports provided the goods are manufactured in India, e.g. supply of goods to an EOU or to a company situated in a special economic zone (SEZ);
(v)
ARO: The AAS holder intending to source the inputs from indigenous sources, in lieu of direct import, has the option to source them against AROs. In such cases the Advance Authorisations are validated as AROs and are endorsed to the indigenous supplier upon delivery of the items specified therein. The endorsement of the ARO entitles the indigenous supplier to the benefits of deemed exports as set out in paragraph 8.3 of the EXIM-policy 04-09 (i.e. AAS for intermediate supplies/deemed export, deemed export drawback and refund of terminal excise duty). The ARO mechanism refunds taxes and duties to the supplier instead of refunding the same to the ultimate exporter in the form of drawback/refund of duties. The refund of taxes/duties is available both for indigenous inputs as well as imported inputs;
(vi)
Back-to-back inland letter of credit: This sub-scheme again covers indigenous supplies to an Advance Authorisation holder. The holder of an Advance Authorisation can approach a bank for opening an inland letter of credit in favour of an indigenous supplier. The authorisation will be invalidated by the bank for direct import only in respect of the value and volume of items being sourced indigenously instead of importation. The indigenous supplier will be entitled to deemed export benefits as set out in paragraph 8.3 of the EXIM-policy 04-09 (i.e. AAS for intermediate supplies/deemed export, deemed export drawback and refund of terminal excise duty).
(36)
Three of the cooperating exporting producers received concessions under the AAS linked to the product concerned during the RIP. Two of these companies made use two of the sub-schemes, i.e. (i) AAS physical exports and (iii) AAS for intermediate supplies. The third company used sub-scheme (ii) AAS for annual requirement. It is therefore not necessary to establish the countervailability of the remaining unused sub-schemes.
(37)
For verification purposes by the Indian authorities, an Advance Authorisation holder is legally obliged to maintain ‘a true and proper account of consumption and utilisation of duty-free imported/domestically procured goods’ in a specified format (chapters 4.26, 4.30 and Appendix 23 HOP I 04-09), i.e. an actual consumption register. This register has to be verified by an external chartered accountant/cost and works accountant who issues a certificate stating that the prescribed registers and relevant records have been examined and the information furnished under Appendix 23 is true and correct in all respects. Nevertheless, the aforesaid provisions apply only to Advance Authorisations issued on or after 13 May 2005. For all Advance Authorisations or Advance Licences issued before that date, holders are requested to follow the previously applicable verification provisions, i.e. to keep a true and proper account of licence-wise consumption and utilisation of imported goods in the specified format of Appendix 18 (chapter 4.30 and Appendix 18 HOP I 02-07).
(38)
With regard to the sub-schemes used during the RIP by two cooperating exporting producers, i.e. physical exports and intermediate supplies, both the import allowance and the export obligation are fixed in volume and value by the GOI and are documented on the authorisation. In addition, at the time of import and of export, the corresponding transactions are to be documented by government officials on the authorisation. The volume of imports allowed under the AAS is determined by the GOI on the basis of standard input-output norms (SIONs). SIONs exist for most products including the product concerned and are published in the HOP II 04-09. The most recent changes in the SIONs for PET film and PET chips, an intermediate product, were revised in September 2005.
(39)
With regard to sub-scheme (ii) listed above (AAS for annual requirement) that was used by the other exporter, only the import allowance in value is documented on the licence. The licence holder is obliged to ‘maintain the nexus between inputs and the resultant product’ (paragraph 4.24A(c) HOP I 04-09).
(40)
Imported input materials are not transferable and have to be used to produce the resultant export product. The export obligation must be fulfilled within a prescribed time-frame after issuance of the licence (24 months with two possible extensions of six months each).
(41)
The verification showed that the actual consumption rate for the companies concerned of key raw materials needed to produce one kilogram of PET film was lower than the corresponding SION. This was clearly the case with regard to the old SION for PET film, and to a lesser extent, to the revised SION which came into force in September 2005.
(42)
The verification further established that none of the companies concerned had kept the legally required consumption register referred to in recital 37 above. Consequently, it can only be concluded that the verification requirements stipulated by the Indian authorities were not honoured.
(d) Conclusion
(43)
The exemption from import duties is a subsidy within the meaning of Article 2(1)(a)(ii) and Article 2(2) of the basic Regulation, i.e. a financial contribution of the GOI which conferred a benefit upon the investigated exporters.
(44)
In addition, AAS physical exports, AAS for intermediate supply and AAS for annual requirement are clearly contingent in law upon export performance, and therefore deemed to be specific and countervailable under Article 3(4)(a) of the basic Regulation. Without an export commitment a company cannot obtain benefits under these schemes.
(45)
None of the three sub-schemes used in the present case can be considered as permissible duty drawback systems or substitution drawback systems within the meaning of Article 2(1)(a)(ii) of the basic Regulation. They do not conform to the rules laid down in Annex I item (i), Annex II (definition and rules for drawback) and Annex III (definition and rules for substitution drawback) of the basic Regulation. The GOI did not effectively apply neither its new nor its old verification system or procedure to confirm whether and in what amounts inputs were consumed in the production of the exported product (Annex II(II)(4) of the basic Regulation and, in the case of substitution drawback schemes, Annex III(II)(2) of the basic Regulation). The SIONs for the product concerned were not sufficiently precise. The SION’s themselves cannot be considered a verification system of actual consumption, because none of the companies concerned kept the required consumption register to enable the GOI to verify with sufficient precision what amounts of inputs were consumed in the export production. In addition, the GOI did not carry out a further examination based on actual inputs involved, although this would normally need to be carried out in the absence of an effectively applied verification system (Annex II(II)(5) and Annex III(II)(3) to the basic Regulation).
(46)
These three sub-schemes are therefore countervailable.
(e) Calculation of the subsidy amount
(47)
In the absence of permitted duty drawback systems or substitution drawback systems, the countervailable benefit is the remission of total import duties normally due upon importation of inputs. In this respect, it is noted that the basic Regulation does not only provide for the countervailing of an ‘excess’ remission of duties. According to Article 2(1)(a)(ii) and Annex I(i) of the basic Regulation only when the conditions of Annexes II and III of the basic Regulation are met that the excess remission of duties can be countervailed. However, these conditions were not fulfilled in the present case. Thus, if an adequate monitoring process is not demonstrated, the above exception for drawback schemes is not applicable and the normal rule of the countervailing of the amount of unpaid duties (revenue forgone), applies, rather than of any purported excess remission. As set out in Annexes II(II) and III(II) of the basic Regulation the burden is not upon the investigating authority to calculate such excess remission. To the contrary, according to Article 2(1)(a)(ii) of the basic Regulation, the investigating authority only has to establish sufficient evidence to refute the appropriateness of an alleged verification system.
(48)
The subsidy amount for the three exporters which used the AAS was calculated on the basis of import duties forgone (basic customs duty and special additional customs duty) on the material imported under the three sub-schemes during the RIP (numerator). In accordance with Article 7(1)(a) of the basic Regulation, fees necessarily incurred to obtain the subsidy were deducted from the subsidy amount where justified claims were made. In accordance with Article 7(2) of the basic Regulation, this subsidy amount was allocated over the export turnover during the RIP as appropriate denominator, because the subsidy is contingent upon export performance and was not granted by reference to the quantities manufactured, produced, exported or transported.
(49)
Three cooperating exporting producers obtained benefits from this scheme during the RIP ranging from 0,5 % to 2,1 %.
3. Duty Entitlement Passbook Scheme (DEPBS)
(a) Legal Basis
(50)
The detailed description of the DEPBS is contained in paragraph 4.3 of the EXIM-policy 04-09 and in chapter 4 of the HOP I 04-09.
(b) Eligibility
(51)
Any manufacturer-exporter or merchant-exporter is eligible for this scheme.
(c) Practical implementation of the DEPBS
(52)
An eligible exporter can apply for DEPBS credits which are calculated as a percentage of the value of products exported under this scheme. Such DEPBS rates have been established by the Indian authorities for most products, including the product concerned. They are determined on the basis of SIONs, taking into account a presumed import content of inputs in the export product and the customs duty incidence on such presumed imports, regardless of whether import duties have actually been paid or not.
(53)
To be eligible for benefits under this scheme, a company must export. At the point in time of the export transaction, a declaration must be made by the exporter to the authorities in India indicating that the export is taking place under the DEPBS. In order for the goods to be exported, the Indian customs authorities issue an export shipping bill, during the dispatch procedure. This document shows, inter alia, the amount of DEPBS credit which is to be granted for that export transaction. At this point in time, the exporter knows the benefit it will receive. Once the customs authorities issue an export shipping bill, the GOI has no discretion over the granting of a DEPBS credit. The relevant DEPBS rate to calculate the benefit is that which applied at the time the export declaration is made. Therefore, there is no possibility for a retroactive amendment to the level of the benefit.
(54)
DEPBS credits are freely transferable and valid for a period of 12 months from the date of issue. They can be used for payment of customs duties on subsequent imports of any goods unrestrictedly importable, except capital goods. Goods imported against such credits can be sold on the domestic market (subject to sales tax) or used otherwise.
(55)
Application for DEPBS credits are electronically filed and can cover an unlimited amount of export transactions. De facto no strict deadlines apply to DEPBS credits. The electronic system used to manage DEPBS is not excluding automatically export transactions exceeding the deadline submission periods mentioned in chapter 4.47 HOP I 04-09. Furthermore, as clearly provided in chapter 9.3 HOP I 04-09 applications received after the expiry of submission deadlines can always be considered with the imposition of a minor penalty fee (i.e. 10 % on the entitlement).
(d) Conclusions on the DEPBS
(56)
The DEPBS provides subsidies within the meaning of Article 2(1)(a)(ii) and Article 2(2) of the basic Regulation. A DEPBS credit is a financial contribution by the GOI, since the credit will eventually be used to offset import duties, thus decreasing the GOI’s duty revenue which would be otherwise due. In addition, the DEPBS credit confers a benefit upon the exporter, because it improves its liquidity.
(57)
Furthermore, the DEPBS is contingent in law upon export performance, and therefore deemed to be specific and countervailable under Article 3(4)(a) of the basic Regulation.
(58)
This scheme cannot be considered a permissible duty drawback system or substitution drawback system within the meaning of Article 2(1)(a)(ii) of the basic Regulation. It does not conform to the strict rules laid down in Annex I item (i), Annex II (definition and rules for drawback) and Annex III (definition and rules for substitution drawback) of the basic Regulation. An exporter is under no obligation to actually consume the goods imported free of duty in the production process and the amount of credit is not calculated in relation to actual inputs used. Moreover, there is no system or procedure in place to confirm which inputs are consumed in the production process of the exported product or whether an excess payment of import duties occurred within the meaning of item (i) of Annex I and Annexes II and III of the basic Regulation. Lastly, an exporter is eligible for the DEPBS benefits regardless of whether it imports any inputs at all. In order to obtain the benefit, it is sufficient for an exporter to simply export goods without demonstrating that any input material was imported. Thus, even exporters which procure all of their inputs locally and do not import any goods which can be used as inputs are still entitled to benefit from the DEPBS.
(e) Calculation of the subsidy amount
(59)
In accordance with Articles 2(2) and 5 of the basic Regulation and the calculation methodology used for this scheme in Regulation (EC) No 367/2006, the amount of countervailable subsidies was calculated in terms of the benefit conferred on the recipient found to exist during the RIP. In this regard, it was considered that the benefit is conferred on the recipient at the point in time when an export transaction is made under this scheme. At this moment, the GOI is liable to forego the customs duties, which constitutes a financial contribution within the meaning of Article 2(1)(a)(ii) of the basic Regulation. Once the customs authorities issue an export shipping bill which shows, inter alia, the amount of DEPBS credit which is to be granted for that export transaction, the GOI has no discretion as to whether or not to grant the subsidy. Furthermore, the cooperating exporting producers booked the DEPBS credits on an accrual basis as income at the stage of the export transactions.
(60)
Where justified claims were made, fees necessarily incurred to obtain the subsidy were deducted from the credits so established to arrive at the subsidy amount as numerator, pursuant to Article 7(1)(a) of the basic Regulation. In accordance with Article 7(2) of the basic Regulation this subsidy amount has been allocated over the export turnover concerned during the review investigation period as appropriate denominator, because the subsidy is contingent upon export performance and it was not granted by reference to the quantities manufactured, produced, exported or transported.
(61)
Four cooperating exporting producers obtained benefits from this scheme during the RIP ranging from 2,7 % to 5,9 %.
4. Export Promotion Capital Goods Scheme (EPCGS)
(a) Legal basis
(62)
The detailed description of the EPCGS is contained in chapter 5 of the EXIM-policy 04-09 and in chapter 5 of the HOP I 04-09.
(b) Eligibility
(63)
Manufacturer-exporters, merchant-exporters ‘tied to’ supporting manufacturers and service providers are eligible for this scheme.
(c) Practical implementation
(64)
Under the condition of an export obligation, a company is allowed to import capital goods (new and - since April 2003 - second-hand capital goods up to 10 years old) at a reduced rate of duty. To this end, the GOI issues upon application and payment of a fee an EPCGS licence. Since April 2000, the scheme provides for a reduced import duty rate of 5 % applicable to all capital goods imported under the scheme. Until 31 March 2000, an effective duty rate of 11 % (including a 10 % surcharge) and, in case of high value imports, a zero duty rate was applicable. In order to meet the export obligation, the imported capital goods must be used to produce a certain amount of export goods during a certain period.
(65)
The EPCGS licence holder can also source the capital goods indigenously. In such case, the indigenous manufacturer of capital goods may avail of the benefit for duty-free import of components required to manufacture such capital goods. Alternatively, the indigenous manufacturer can claim the benefit of deemed export in respect of supply of capital goods to an EPCGS licence holder.
(d) Disclosure comments
(66)
Following disclosure, one exporting producer highlighted that the capital goods imported under this scheme were also used for the production of products not concerned with this investigation, and that, when determining the subsidy margin, the subsidy amount established and attributable to the RIP should be divided by exports of not only the product concerned. This claim was found to be warranted and an appropriate adjustment was made in calculating the amount of benefit to this company under this scheme.
(e) Conclusion on EPCG scheme
(67)
The EPCGS provides subsidies within the meaning of Article 2(1)(a)(ii) and Article 2(2) of the basic Regulation. The duty reduction constitutes a financial contribution by the GOI, since this concession decreases the GOI’s duty revenue, which would be otherwise due. In addition, the duty reduction confers a benefit upon the exporter, because the duties saved upon importation improve its liquidity.
(68)
Furthermore, the EPCGS is contingent in law upon export performance, since such licences can not be obtained without a commitment to export. Therefore, it is deemed to be specific and countervailable under Article 3(4)(a) of the basic Regulation.
(69)
Eventually, this scheme can not be considered a permissible duty drawback system or substitution drawback system within the meaning of Article 2(1)(a)(ii) of the basic Regulation. Capital goods are not covered by the scope of such permissible systems, as set out in Annex I, item (i), of the basic Regulation, because they are not consumed in the production of the exported products.
(f) Calculation of the subsidy amount
(70)
The subsidy amount was calculated, in accordance with Article 7(3) of the basic Regulation, on the basis of the unpaid customs duty on imported capital goods spread across a period which reflects the normal depreciation period of such capital goods in the industry concerned. In accordance with the established practice, the amount so calculated, which is attributable to the RIP, has been adjusted by adding interest during this period in order to reflect the full value of the benefit over time. The commercial interest rate during the review investigation period in India was considered appropriate for this purpose. Where justified claims were made, fees necessarily incurred to obtain the subsidy were deducted in accordance with Articles 7(1)(a) of the basic Regulation. In accordance with Article 7(2) and 7(3) of the basic Regulation, this subsidy amount has been allocated over the export turnover during the RIP as appropriate denominator, because the subsidy is contingent upon export performance and it was not granted by reference to the quantities manufactured, produced, exported or transported.
(71)
Four cooperating exporting producers obtained benefits from this scheme during the RIP ranging from 1,0 % to 1,9 %.
5. Export Processing Zones (EPZS)/Special Economic Zones Scheme (SEZS)/Export Oriented Units Scheme (EOUS)
(72)
It was found that none of the cooperating exporting producers had the status of an EOU nor were any of them located in an EPZS. However, one of the cooperating exporting producers was located in an SEZS and received countervailable subsidies in the RIP. The description and assessment below is therefore limited to the SEZS.
(a) Legal basis
(73)
Chapter 7 of the EXIM-policy 04-09 and chapter 7 the HOP I 04-09 makes reference to SEZS. The details of the rules and provisions are no longer in the EXIM policy book and the Handbook of procedures. The relevant policy and implementation provisions are the Special Economic Zones Act of 2005 (No 28 of 2005) and the Special Economic Zones Rules of 2006 (Notification dated 10 February 2006).
(b) Eligibility
(74)
All enterprises which, in principle, undertake to export their entire production of goods or services may be set up under the SEZS. This also includes pure trading companies. Unlike EOUS, there are no minimum investment thresholds in fixed assets which companies have to fulfil to be eligible for the SEZS.
(c) Practical implementation
(75)
The SEZS is the successor scheme of the former Export Processing Zones Scheme (EPZS). SEZS are specifically delineated duty-free enclaves and considered as foreign territory for the purpose of trade operations, duties and taxes. SEZS units have to be located within specified zones developed for that purpose. Seventeen SEZS are already in operation following the approval of their establishment by the India authorities.
(76)
An application for SEZ status must include details for the next five years of, inter alia, planned production quantities, projected value of exports, import requirements and indigenous requirements. Upon acceptance by the authorities of the company’s application, the terms and conditions attached to this acceptance will be communicated to the company. The agreement to be recognised as a company under the SEZS is valid for a five-year period. The agreement may be renewed for further periods.
(77)
A crucial obligation for SEZS units as set out in Chapter VI of Special Economic Zones Rules of 2006 is to achieve Net Foreign Exchange (NFE) earnings, i.e. in a reference period (five years from the commencement of commercial production), the total value of exports has to be higher than the total value of imported goods.
(78)
SEZS units are entitled to the following concessions:
(i)
exemption from import duties on all types of goods (including capital goods, raw materials and consumables) required for the manufacture, production, processing, or in connection therewith;
(ii)
exemption from excise duty on goods procured from indigenous sources;
(iii)
exemption from central sales tax paid on goods procured locally;
(iv)
the facility to sell part of the production on the domestic market, subject to fulfilment of positive NFE earnings upon payment of applicable duties as the SEZS are not considered part of the Indian fiscal/customs territory;
(v)
100 % Income Tax Exemption on ‘profits from exports’ from SEZ units under Section 10AA of the Income Tax Act for the first five years, 50 % for the next five years thereafter and with the possibility for further benefits for the next five years; and
(vi)
exemption from service tax for services consumed in an SEZ.
(79)
Units operating under SEZS are bonded under the surveillance of customs officials in accordance with the relevant provisions of the Customs Act.
(80)
These units are legally obliged to maintain proper accounts which should indicate in value terms the goods imported or procured from the domestic tariff area, consumption and utilisation of goods, production of goods and disposal of goods by way of exports, sales in the domestic tariff area etc. in accordance with rule 22(2) of the Special Economic Zones Rules of 2006.
(81)
However, at no point in time is a SEZ unit required to co-relate every import consignment with its exports or transfers to other units, or with its sales in the domestic tariff area, according to rule 35 of the Special Economic Zones Rules of 2006.
(82)
The assessment of imports and domestic procurement of raw materials and capital goods is based on a self-certification basis. The same applies in case of export sales. Thus, no routine examinations of such consignments of an SEZ unit by customs authorities take place.
(83)
In the present case, the cooperating exporting producer utilised the scheme to import raw materials and capital goods free of import duties, to procure goods domestically free of excise duty, to procure goods domestically without payment of central sales tax, and to be exempted from service tax. The investigation showed that the exporting producer concerned did not avail of benefits under the income tax exemption provisions of the SEZS.
(d) Disclosure comments
(84)
Following disclosure, the exporting producer located in an SEZS made a number of comments arguing e.g. that the sub-schemes used by the company are permissible duty exemption schemes (duty drawback) and that the sub-schemes used do not constitute a subsidy since they do not confer a benefit. The arguments of the exporting producer are addressed below.
(e) Conclusions on the SEZS
(85)
In the case of exemption from excise duty on goods procured from indigenous sources, it was found that the duty paid on purchases by a non-SEZS unit can be used as a credit for its own future duty liabilities, e.g. towards payment of excise duty on domestic sales (the so-called ‘CENVAT’ mechanism). Therefore, the excise duty paid on purchases is not definitive. By the means of ‘CENVAT’-credit, only an added value bears a definitive duty, not the input materials. Thus, by granting an exemption from excise duty on purchases by an SEZS unit, no additional government revenue is forgone and consequently no additional benefit accrues to the SEZS. In these circumstances, as no additional benefit accrues to the SEZS it is not necessary to further analyse this sub-scheme in this investigation.
(86)
The exemption of a SEZS unit from two types of import duties (basic customs duty and special additional customs duty normally due on imports of raw materials and capital goods), the exemption from payment of sales tax on goods procured domestically and the exemption from service tax constitute subsidies within the meaning of Article 2(1)(a)(ii) of the basic Regulation. Government revenue which would be due in the absence of this scheme is forgone, thus conferring a benefit upon the SEZS unit within the meaning of Article 2(2) of the basic Regulation, because it improves its liquidity. The subsidies are contingent in law upon export performance and, therefore, deemed to be specific and countervailable under Article 3(4)(a) of the basic Regulation. The export objective of SEZS as set out in rule 2 of the Special Economic Zones Rules of 2006 is a conditio sine qua non to obtain the incentives.
(87)
The exporting producer argued that the sub-schemes used by the company constitute permissible duty exemption (duty drawback) schemes pursuant to Article 2(1)(a)(ii) and Annex I of the basic Regulation and are therefore not countervailable. The company submitted that Annex (i) to the basic Regulation provide that only the exemption, remission or drawback of import charges in excess of those levied on imported inputs that are consumed in the production of the exported product constitutes an export subsidy. In other words, as long as there is no excess remission or exemption, the exemption from imported duties on inputs required for the manufacture, production or processing of the exported product cannot be considered as a countervailable subsidy.
(88)
In reply to this argument, it should first of all be noted that the benefits an SEZ unit enjoys are all contingent in law upon export performance. Furthermore, the schemes cannot be considered as permissible duty drawback systems or substitution drawback systems within the meaning of Article 2(1)(a)(ii) of the basic Regulation. They do not conform to the strict rules laid down in Annex I (items (h) and (i)), Annex II (definition and rules for drawback) and Annex III (definition and rules for substitution drawback) of the basic Regulation. In the circumstance that the sales tax exemption and import duty exemption provisions are used for purchasing capital goods, they are already not in conformity with the rules for permitted drawback systems since capital goods are not consumed in the production process, as required by Annex I item (h) (sales tax reimbursement) and by Annex I item (i) (import duty remission). In addition, it was confirmed that the GOI has no effective verification system or procedure in place to confirm whether and in what amounts duty and or the tax free procured inputs were consumed in the production of the exported product (Annex II(II)(4) of the basic Regulation, and, in the case of substitution drawback schemes, Annex III(II)(2) of the basic Regulation). In fact, an SEZ unit is required to achieve Net Foreign Exchange (NFE) earnings, but there is no verification system in place aiming to monitor the consumption of imports in relation to the production of exported goods.
(89)
As an alternative argument, the exporting producer submitted that the sub-schemes used by the company do not constitute subsidies as no benefit had been conferred upon the company. With respect to domestic sales, the exporting producers argued that, since a SEZ unit is not considered to be part of the India fiscal/customs territory, full customs duties need to be paid on the finished products when sold to the domestic market. It was alleged that no benefit has been obtained since duties exempted on the inputs used in the production of goods sold on the domestic market are lower than the duties paid by the company when selling on the domestic market.
(90)
In addressing this claim, it should be noted that though the purpose for setting up as a SEZ unit is to achieve Net Foreign Exchange (NFE) earnings, the SEZ unit has the possibility to sell part of its production on the domestic market. Under the SEZ scheme, the goods cleared from the zone to the domestic market will be treated as imported goods. As such, an SEZ is not in a different situation than other companies operating on the domestic market, i.e. applicable duties/taxes would have to be paid on purchased goods. In this context, it should be clear that, a decision of the Government to tax goods for consumption on the domestic market, does not mean, that the exemption of a SEZS unit from import duties and sales taxes is not a benefit in relation to the export sales of the product concerned. Moreover, the sales on the domestic market have no impact on the more general assessment of the adequacy of whether there is an appropriate verification system in place.
(91)
In respect of export sales, the exporting producer argued that the exemption from import duties and taxes does not constitute a countervailable subsidy as long as there is no excess remission. The company further argues that the SEZ unit is bonded under surveillance of customs officials, and that it is not possible to sell inputs on the domestic market or to incorporate these inputs in products to be sold on the domestic market without paying the applicable duties. In the view of the exporting producer, there can be thus no excess remission.
(92)
In reply to this, it should be recalled that there is no system or procedure in place to confirm which inputs are consumed in the production process of the exported product and whether an excess payment of import duties and taxes occurred within the meaning of Annexes I, II and III to the basic Regulation. A SEZ unit is already de jure and at no point in time required to co-relate every import consignment with the destination of the corresponding resultant product. Only if such controls were in place would the Indian authorities be able to obtain sufficient information about the final destination of inputs so as to allow for an efficient check that the duty/sales tax exemptions do not exceed inputs for export production. Company internal systems would not as such suffice since a duty drawback verification system would need to be designed and enforced by a government. Consequently, the investigation has established that the SEZ is explicitly not required by the legal rules and provisions for SEZS to record nexus between imported materials and the finished product and no effective control mechanism was set up by the GOI to determine which inputs were consumed in export production and in what amounts.
(93)
Also, the GOI neither carried out a further examination based on actual inputs involved, although this would normally be required in the absence of an effective verification system (Annex II(II)(5) and Annex III(II)(3) to the basic Regulation). Furthermore, no evidence was provided by the GOI demonstrating that no excess remission took place.
(f) Calculation of the subsidy amount
(94)
Accordingly, in the absence of a permitted duty drawback system or substitution drawback system, the countervailable benefit is the remission of customs duties (basic customs duty and special additional customs duty) the exemption from payment of sales tax for goods procured domestically and the exemption from service tax, during the investigation period.
(95)
As regards the exemption from payment of basic customs duties, the exemption from payment of sales tax for goods procured domestically and the exemption from service tax, the numerator (subsidy amount) was calculated on the basis of the exempted amounts during the RIP. Fees necessarily incurred to obtain the subsidy were deducted in accordance with Article 7(1)(a) of the basic Regulation from this sum to arrive at the subsidy amount as the numerator.
(96)
Unlike raw materials, capital goods are not physically incorporated into the finished goods. Accordingly, in regard to exemptions from payment of taxes on purchases of capital goods, the subsidy amount was calculated, in accordance with Article 7(3) of the basic Regulation, on the basis of the unpaid customs duty on imported capital goods spread across a period which reflects the normal depreciation period of such capital goods in the industry concerned. In accordance with the established practice, the amount so calculated, which is attributable to the RIP, has been adjusted by adding interest during this period in order to reflect the full value of the benefit over time. The commercial interest rate during the RIP in India was considered appropriate for this purpose. Where substantiated claims were made, fees necessarily incurred to obtain the subsidy were deducted in accordance with Article 7(1)(a) of the basic Regulation.
(97)
In accordance with Article 7(2) of the basic Regulation these subsidy amounts thus established under recital 95 and recital 96 above were allocated over the export turnover generated during the RIP as the appropriate denominator, because the subsidy is contingent upon export performance and it was not granted by reference to the quantities manufactured, produced, exported or transported. The subsidy margin thus obtained was 5,4 %.
6. Income Tax Exemption Scheme (ITES)
(98)
Under this scheme exporters could avail the benefit of a partial income tax exemption on profits derived from export sales. The legal basis for this exemption was set by Section 80HHC of the ITA.
(99)
This provision was abolished for the assessment year 2005-2006 (i.e. for the financial year from 1 April 2004 to 31 March 2005) onwards and thus 80HHC of the ITA does not confer any benefits after 31 March 2004. The cooperating exporting producers did not avail any benefits under this scheme during the RIP. Consequently, since the scheme has been withdrawn, it shall therefore not be countervailed, in accordance with Article 15(1) of the basic Regulation.
7. Export Credit Scheme (ECS)
(a) Legal basis
(100)
The details of the scheme are set out in the Master Circular DBOD No DIR.(Exp).BC 02/04.02.02/2007-08 (Export Credit in Foreign Currency) and the Master Circular DBOD No DIR.(Exp).BC 01/04.02.02/2007-08 (Rupee Export Credit) of the Reserve Bank of India (RBI), which is addressed to all commercial banks in India.
(b) Eligibility
(101)
Manufacturing exporters and merchant exporters are eligible for this scheme. It was established that three of the exporting producers availed of benefits under the ECS.
(c) Practical implementation
(102)
Under this scheme, the RBI mandatorily sets maximum ceiling interest rates applicable to export credits, both in Indian rupees or in foreign currency, which commercial banks can charge an exporter. The ECS consists of two sub-schemes, the Pre-Shipment Export Credit Scheme (packing credit), which covers credits provided to an exporter for financing the purchase, processing, manufacturing, packing and/or shipping of goods prior to export, and the Post-Shipment Export Credit Scheme, which provides for working capital loans with the purpose of financing export receivables. The RBI also directs the banks to provide a certain amount of their net bank credit towards export finance.
(103)
As a result of the RBI Master Circulars exporters can obtain export credits at preferential interest rates as compared with the interest rates for ordinary commercial credits (cash credits), which are purely set under market conditions. The difference in rates might decrease for companies with good credit ratings. In fact, high rating companies might be in a position to obtain export credits and cash credits at the same conditions.
(d) Conclusion on the ECS
(104)
The preferential interest rates of an ECS credit set by the RBI Master Circulars mentioned in recital 100 can decrease the interest costs of an exporter as compared with credit costs purely set by market conditions and confer in this case a benefit in the meaning of Article 2(2) of the basic Regulation on such exporter. Export financing is not per se more secure than domestic financing. In fact, it is usually perceived as being more risky and the extent of security required for a certain credit, regardless of the finance object, is a purely commercial decision of a given commercial bank. Rate differences with regard to different banks are the result of the methodology of the RBI to set maximum lending rates for each commercial bank individually. In addition, commercial banks would not be obliged to pass through to borrowers of export financing any more advantageous interest rates for export credits in foreign currency.
(105)
Despite the fact that the preferential credits under the ECS are granted by commercial banks, this benefit is a financial contribution by a government within the meaning of Article 2(1)(a)(iv) of the Regulation. In this context, it should be noted that neither Article 2(1)(a)(iv) of the basic Regulation nor the ASCM require a charge on the public accounts, e.g. reimbursement of the commercial banks by the GOI, to establish a subsidy, but only government direction to carry out functions illustrated in points (i), (ii) or (iii) of Article 2(1)(a) of the basic Regulation. The RBI is a public body and falls therefore under the definition of ‘government’ as set out in Article 1(3) of the basic Regulation. It is 100 % government-owned, pursues public policy objectives, e.g. monetary policy, and its management is appointed by the GOI. The RBI directs private bodies, within the meaning of the second indent of Article 2(1)(a)(iv) of the basic Regulation, since the commercial banks are bound by the conditions it imposes, inter alia, with regard to the maximum ceilings for interest rates on export credits mandated in the RBI Master Circulars and the RBI provisions that commercial banks have to provide a certain amount of their net bank credit towards export finance. This direction obliges commercial banks to carry out functions mentioned in Article 2(1)(a)(i) of the basic Regulation, in this case provide loans in the form of preferential export financing. Such direct transfer of funds in the form of loans under certain conditions would normally be vested in the government, and the practice differs, in no real sense, from practices normally followed by governments, within the meaning of Article 2(1)(a)(iv) of the basic Regulation. This subsidy is deemed to be specific and countervailable since the preferential interest rates are only available in relation to the financing of export transactions and are therefore contingent upon export performance, pursuant to Article 3(4)(a) of the basic Regulation.
(e) Calculation of the subsidy amount
(106)
The subsidy amount has been calculated on the basis of the difference between the interest paid for export credits used during the RIP and the amount that would have been payable for ordinary commercial credits used by the cooperating exporting producers. This subsidy amount (numerator) has been allocated over the export turnover during the RIP as appropriate denominator in accordance with Article 7(2) of the basic Regulation, because the subsidy is contingent upon export performance and it was not granted by reference to the quantities manufactured, produced, exported or transported.
(107)
Three cooperating exporting producers obtained benefits from this scheme during the RIP ranging from 0,3 % to 0,4 %.
8. Package Scheme of Incentives (PSI)
(a) Legal basis
(108)
In previous investigations regarding PET film, including the review investigation that led to the imposition by Regulation (EC) No 367/2006 of the definitive countervailing duty currently in force, several Indian State schemes involving incentives granted to local companies were investigated. The State schemes fall under the heading ‘Package Scheme of Incentives’ (PSI), as there can be different kind of incentives involved. The investigation established that a company’s entitlement to benefits under the scheme is stipulated in the ‘Eligibility Certificate’. The investigation revealed that two of the cooperating producers enjoyed trade tax (sales tax) exemption under the PSI during the RIP pursuant to Section 4A of the State of Uttar Pradesh Trade Tax Act. This tax provision excuses home-market sales by a company from payment of sales tax (both local sales tax and central sales tax).
(b) Eligibility
(109)
In order to be eligible, companies must as a general rule invest in less developed areas of a state either by setting up a new industrial establishment or by making a large scale capital investment in expansion or diversification of an existing industrial establishment. The main criterion to establish the amount of incentives is the classification of the area in which the enterprise is or will be located and the size of the investment.
(c) Practical implementation
(110)
Under the sales tax exemption schemes, designated units were not required to collect any sales tax on their sales transactions. Similarly, designated units were exempted from the payment of sales tax on their purchases of goods from suppliers eligible for the schemes. Whereas the exemption in relation to sales transaction is not considered to confer any benefit on the designated sales units, the exemption in relation to purchase transactions, however, does confer a benefit on the designated purchasing units.
(d) Disclosure comments
(111)
Following disclosure, one exporting producer noted that, when quantifying the benefit received under this scheme, it has been considered that the suppliers of a main raw material used in the production of the product concerned enjoyed exemption from sales tax. The sales invoices, however, revealed that the suppliers in question did, in fact, charge the tax on their sales to the company concerned. Consequently, as the sales tax was paid by the company, no countervailable benefit arose for the exporting producer on these purchases, and the amount of subsidy was revised accordingly.
(e) Conclusion
(112)
The PSI provides subsidies within the meaning of Article 2(1)(a)(ii) and Article 2(2) of the basic Regulation. The exemption from payment of sales taxes on purchases constitutes a financial contribution, since this concession decreases the government’s revenue which would be otherwise due. In addition, this exemption confers a benefit upon the companies as it improves their liquidity.
(113)
The PSI is only available to companies having invested within certain designated geographical areas within the jurisdiction of a State in India. It is not available for companies located outside these areas. The level of benefit is different according to the area concerned. The scheme is specific in accordance with Article 3(2)(a) and Article 3(3) of the basic Regulation and therefore countervailable.
(f) Calculation of the subsidy amount
(114)
Concerning the sales tax exemption, the subsidy amount was calculated on the basis of the amount of the sales tax normally due during the RIP but which remained unpaid.
(115)
Pursuant to Article 7(2) of the basic Regulation, the amount of subsidy (numerator) has then been allocated over the total turnover of export and domestic sales during the review investigation period as the appropriate denominator, because the subsidy is not export-contingent and it was not granted by reference to the quantities manufactured, produced, exported or transported.
(116)
The two cooperating exporting producers obtained subsidies from this scheme during the RIP of 0,3 % and 1,4 % respectively.
9. Amount of countervailable subsidies
(117)
It is recalled that in Regulation (EC) No 367/2006 and subsequent amendments, referred to in recitals 2, 3 and 4 above, the amount of countervailable subsidies, expressed ad valorem, was found to be ranging from 12 % to 19,1 % for the concerned cooperating exporting producers that cooperated in the present partial interim review.
(118)
During the present partial interim review the amount of countervailable subsidies, expressed ad valorem, was found to be ranging from 5,4 % to 8,6 %, as listed hereunder:
Scheme→
AAS (12)
DEPBS (12)
EPCGS (12)
SEZS (12)
ECS (12)
PSI
Total
Company↓
%
%
%
%
%
%
%
Ester Industries Limited
5,8
1,0
0,4
7,2
Garware Polyester Limited
0,5
3,9
1,0
Negligible
5,4
Polyplex Corporation Limited
1,7
3,2
1,9
0,4
1,4
8,6
SRF Limited
5,4
5,4
Uflex Limited
2,1
2,7
1,0
0,3
0,3
6,4
10. Countervailing measures
(119)
In line with the provisions of Article 19 of the basic Regulation and the grounds of this partial interim review stated under point 3 of the Notice of Initiation, it is established that the level of subsidisation with regard to the concerned exporting producers has decreased and, therefore, the rates of countervailing duties imposed to these exporting producers by Regulation (EC) No 367/2006 should be amended accordingly.
(120)
The amended countervailing duty rates should be established at the new rates of subsidisation found during the present interim review, as the injury margins calculated in the original anti-subsidy investigation remains higher.
(121)
With regard to all other companies that were not concerned by the present partial interim review, it is noted that the actual modalities of the investigated schemes and their countervailability have not changed with respect to the previous investigation. Thus there is no reason to recalculate the subsidy and duty rates of these companies. Consequently, the rates of the duty applicable to all other parties except the five exporting producers that cooperated in the current review remain unchanged.
(122)
The individual company countervailing duty rates specified in this Regulation reflect the situation found during the partial interim review. Thus, they are solely applicable to imports of the product concerned produced by these companies. Imports of the product concerned manufactured by any other company not specifically mentioned in the operative part of this Regulation, including entities related to those specifically mentioned, cannot benefit from these rates and shall be subject to the duty rate applicable to ‘all other companies’.
(123)
Any claim requesting the application of these individual countervailing duty rates (e.g. following a change in the name of the entity or following the setting up of new production or sales entities) should be addressed to the Commission (13) forthwith with all relevant information, in particular any modification in the company’s activities linked to production, domestic and export sales associated with, for instance, that name change or that change in the production and sales entities. If appropriate, and after consultation of the Advisory Committee, the Regulation will be amended accordingly by updating the list of companies benefiting from individual duty rates.
11. Anti-dumping measures
(124)
As provided in the last paragraph under point 3 of the Notice of Initiation, the amendment of the countervailing duty rate will have an impact on the definitive anti-dumping duty imposed by Regulation (EC) No 1292/2007, as the latter in previous anti-dumping investigations was adjusted in order to avoid any double counting of the effects of benefits from export subsidies (it is recalled that the definitive anti-dumping duty was based on the dumping margin since the latter was found to be lower than the injury elimination level). Article 24(1) of the basic Regulation and Article 14(1) of Regulation (EC) No 384/96 provide that no product shall be subject to both anti-dumping and countervailing measures for the purpose of dealing with one and the same situation arising from dumping or export subsidisation. It was found in the original investigation that certain of the subsidy schemes investigated which were countervailable, constituted export subsidies within the meaning of Article 3(4)(a) of the basic Regulation. As such, these subsidies affected the export prices of the Indian exporting producers, thus leading to increased margins of dumping. Therefore, pursuant to Article 24(1) of the basic Regulation, the definitive anti-dumping duty rates were adjusted to reflect the actual dumping margin remaining after the imposition of the definitive countervailing duty offsetting the effect of the export subsidies (see recital 59 of Regulation (EC) No 366/2006 and recital 11 of Regulation (EC) No 1424/2006).
(125)
Consequently, the definitive anti-dumping duty rates for the exporting producers concerned must now be adjusted to take account of the revised level of benefit received from export subsidies in the RIP of the current anti-subsidy investigation to reflect the actual dumping margin remaining after the imposition of the adjusted definitive countervailing duty offsetting the effect of the export subsidies.
(126)
The dumping margins previously established in respect of Ester Industries Limited, Garware Polyester Limited, Polyplex Corporation Limited and Uflex Limited (at that time known as Flex Industries Limited) (14), were established in Regulation (EC) No 366/2006 (see recital 50) and amounted for the four companies concerned to 29,3 %, 20,1 %, 3,7 % and 3,2 % respectively. The level of the dumping margin for SRF Limited established in Regulation (EC) No 1424/2006 was 15,5 %.
(127)
Taking into the account the benefits from exports subsidies found in the RIP and the level of the dumping margin previously established, the margins and duty rates applicable to the companies concerned should therefore be calculated as indicated in the table below:
Company
Export subsidy margin
Total subsidy margin
Dumping margin previously established
CVD duty
AD duty
Total duty rate
Ester Industries Limited
7,2 %
7,2 %
29,3 %
7,2 %
22,1 %
29,3 %
Garware Polyester Limited
5,4 %
5,4 %
20,1 %
5,4 %
14,7 %
20,1 %
Polyplex Corporation Limited
7,2 %
8,6 %
3,7 %
8,6 %
0,0 %
8,6 %
SRF Limited
5,4 %
5,4 %
15,5 %
5,4 %
10,1 %
15,5 %
Uflex Limited
6,1 %
6,4 %
3,2 %
6,4 %
0,0 %
6,4 %
(128)
In order to take account of the revised level of anti-dumping duty for the five exporting producers concerned, Regulation (EC) No 1292/2007 should be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Article 1(2) of Regulation (EC) No 367/2006 shall be replaced by the following:
‘2. The rate of the definitive countervailing duty applicable to the net free-at-Community-frontier price, before duty, of the products manufactured by the companies listed below, shall be as follows:
Company
Definitive duty (%)
TARIC additional code
Ester Industries Limited, 75-76, Amrit Nagar, Behind South Extension Part-1, New Delhi 110 003, India
7,2
A026
Garware Polyester Limited, Garware House, 50-A, Swami Nityanand Marg, Vile Parle (East), Mumbai 400 057, India
5,4
A028
Jindal Poly Films Limited, 56 Hanuman Road, New Delhi 110 001, India
17,1
A030
MTZ Polyfilms Limited, New India Centre, 5th Floor, 17 Co-operage Road, Mumbai 400 039, India
8,7
A031
Polyplex Corporation Limited, B-37, Sector-1, Noida 201 301, Dist. Gautam Budh Nagar, Uttar Pradesh, India
8,6
A032
SRF Limited, Block C, Sector 45, Greenwood City, Gurgaon 122 003, Haryana, India
5,4
A753
Uflex Limited, A-1, Sector 60, Noida 201 301 (U.P.), India
6,4
A027
All other companies
19,1
A999’
Article 2
Article 2(2) of Regulation (EC) No 1292/2007 shall be replaced by the following:
‘2. The rate of the definitive anti-dumping duty applicable to the net, free-at-Community-frontier price, before duty, of the products manufactured by the companies listed below, shall be as follows:
Company
Definitive duty (%)
TARIC additional code
Ester Industries Limited, 75-76, Amrit Nagar, Behind South Extension Part-1, New Delhi 110 003, India
22,1
A026
Garware Polyester Limited, Garware House, 50-A, Swami Nityanand Marg, Vile Parle (East), Mumbai 400 057, India
14,7
A028
Jindal Poly Films Limited, 56 Hanuman Road, New Delhi 110 001, India
0,0
A030
MTZ Polyfilms Limited, New India Centre, 5th Floor, 17 Co-operage Road, Mumbai 400 039, India
18,0
A031
Polyplex Corporation Limited, B-37, Sector-1, Noida 201 301, Dist. Gautam Budh Nagar, Uttar Pradesh, India
0,0
A032
SRF Limited, Block C, Sector 45, Greenwood City, Gurgaon 122 003, Haryana, India
10,1
A753
Uflex Limited, A-1, Sector 60, Noida 201 301 (U.P.), India
0,0
A027
All other companies
17,3
A999’
Article 3
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, 8 January 2009.
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*****
COMMISSION DECISION
of 23 April 1986
on a proposal by the Italian Government to grant aid to a firm in the chemical industry (producing industrial auxiliaries, intermediates and pesticides)
(Only the Italian text is authentic)
(87/16/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 those comments,
Whereas:
I
By letter dated 7 January 1985, the Italian Government notified the Commission, as required by Article 93 (3) of the EEC Treaty, and in accordance with the Commission Decisions of 11 July 1983 and 2 August 1985 on Law No 46/82 (Innovation Fund), of a proposal to grant aid under the said Law for a programme relating to innovation in the field of finished and intermediate products in the fine chemicals sector.
The programme involves research, development and experimentation for new processes and products in the field of industrial auxiliaries, intermediates and pesticides.
The cost of the programme comes to Lit 30 399 million. The proposed aid would take the form of a low-interest loan of Lit 12 958 million, which corresponds to 42,6 % of the programme's cost. With a reference rate of 17,13 %, the cost of the loan amounts to 2,57 % during the first five years and 10,27 % during the following 10 years. The net grant equivalent may be estimated at approximately 11 % of the programme's cost.
Law No 46/82 of 17 February 1982, published in the Gazzetta Ufficiale della Repubblica Italiana No 57 of 27 February 1982, established in its Articles 14 to 19 a 'Fondo Speciale rotativo per l'innovazione technologica' having as its object the promotion of programmes aimed at bringing about technological advances centred on new products or production processes or on the improvement of existing products or production processes.
The Fund provides support at the design stage of programmes and at the experimental, development and pre-production stages in the form of low-interest loans of up to 55 % of the programme cost, granted for 15 years with a five-year suspension of principal repayment. The rate of interest payable on such loans is 15 % of the reference rate during the first five years and 60 % of the reference rate during the next 10 years. Taking as a basis a reference rate now fixed at 17,13 %, the cost of the loans amounts to 2,57 % during the first five years and 10,27 % during the following 10 years. A non-repayable grant may be awarded, where appropriate, instead of all or part of a low-interest loan. Aid given under the Fund may not be combined with other aid for the same programme.
By letter dated 11 July 1983, and more recently by letter sent on 2 August 1985 concerning the reconstitution of the Fund, the Commission approved the implementation of Law No 46/82. It took the view that, in the case in point, the encouragement of research and innovation programmes as provided for in the Law can be in the Community's interest, on condition that the aid is not granted for productive investments and that an excessive concentration of the aid in question on certain sectors is avoided as it might affect trade between Member States to an extent contrary to the common interest.
The Commission also made its authorization of the implementation of Law No 46/82 subject to the condition that significant individual cases, that is to say those where the cost of the programme exceeds Lit 15 000 million (10 000 million if the programme is carried out by a firm which has already received support from the Fund for another programme), should be notified to it in advance, pursuant to Article 93 (3) of the EEC Treaty, since it was not possible for the Commission to ascertain on the basis of Law No 46/82 alone whether operations were actually involved which (a) were of an innovative nature, (b) did not concern the production cycle, and (c) contributed to the attainment of an objective of value to the Community as a whole. The Commission reserved the right to examine each significant case on its merits in the light of the above factors and having regard to the effects of the aid in question on the competitive position of firms in the sectors concerned within the meaning of Article 92 (3) of the EEC Treaty.
After an initial examination of the aid proposed, notified by the Italian Government by letter dated 7 January 1985, the Commission came to the conclusion that it could not be considered compatible with the common market. It was not apparent from the information furnished to the Commission that the aid was in fact intended for an innovation operation which would lead to the attainment of an objective of value to the Community as a whole. Instead, the expenditure seemed to be needed to enable the firm concerned to continue operating normally in this sector. Consequently, the Commission decided to initiate the procedure laid down in Article 93 (2) of the EEC Treaty in respect of the aid proposal.
The Italian Government was informed of this decision by letter dated 18 April 1985; the Governments of the other Member States were informed by letters dated 25 June 1985. The notice in the Official Journal of the European Communities, informing interested parties other than the Member States, was published on 11 July 1985 (1).
II
The Italian Government replied within the framework of the Article 93 (2) procedure by letter dated 12 June 1985 from its Permanent Representation and at a technical meeting held in Brussels on 17 June 1985.
It maintained that the research programme in question could not be considered as forming part of the normal innovatory activities which every Community chemical company carries on. The objectives pursued by the programme would make it possible to widen the Community's technology base. This would then include new products and production processes which would be so secret that the company would be ill-advised even to take out patents.
The sectors in which the research would be carried out were as follows:
- new industrial auxiliaries,
- new processes for synthesizing industrial intermediates,
- new technologies for producing pesticides.
As regards the first sector, the Italian authorities stated that the research would be aimed at discovering, developing and introducing onto the market new industrial auxiliaries which would help improve the performance of plastics under hostile conditions. The improvement would consist in creating higher-stability polymers using new compounds with properties not yet found in currently marketed products, which are mostly imported from the United States and Switzerland. Because of their special characteristics, the new compounds might be used in areas not covered by conventional products.
As regards the second sector, the research would be directed towards discovering original, innovative processes for synthesizing organic intermediates for pharmaceutical products, additives for polymers, feed or food additives, etc.
In particular, the research would be aimed at:
- eliminating the potential hazards inherent in working with certain chemical reagents. An example would be the new process whereby dimethylcarbonate can be utilized without having to store dangerous reagents such as methyl isocyanate and phosgene,
- reducing energy consumption. An example would be the activation of oxygenated water by zeolitic catalysis. This entirely new catalysis had led to the discovery of a process for the hydroxylation of phenol, making possible energy savings of 50 % compared with existing processes.
As regards the third sector, the research would be aimed at developing new methods for synthesizing pesticides, exploiting the opportunities afforded by the availability of dimethylcarbonate. In particular, these were plans to study the synthesis of urea compounds, carbonates and methyl isocyanate, using dimethylcarbonate as a carbonylating or carboxylating agent instead of phosgene.
The Italian authorities concluded their observations by asserting that, not only should the research programme not be considered a normal activity of the firm, but, on the contrary, it was an extremely innovative programme entailing a high degree of technical and commercial risk. Consequently, the programme would not only not cause any distortions of competition contrary to the common interest but would, on the contrary, be of much value to the Community as it would widen its technology base.
Among the observations submitted under the same procedure, four other Member States and certain competing firms supported the Commission's point of view and expressed deep concern about the aid proposal.
They stated that, in their opinion, the activities in the present case already existed more or less in other Member States and that the programme did not have any innovative aspects beyond what other firms were achieving in the normal course with their own resources.
In the field of plastics and pesticides, there were, moreover, many European firms engaged in research. The aid in question was therefore likely to distort competition in the Community by giving the recipient Italian firm an unfair advantage. They stressed the scale of intra-Community trade and the capacity of producers to satisfy the market's pesticides requirements without difficulty.
III
First of all, the Commission consideres that the aid proposal in question, which was notified by the Italian Government as an individual case of application of Law No 46/82, constitutes an aid within the meaning of Article 92 (1).
The Commission has established that the proposal concerns a major European chemical company which exports to the other Community countries a substantial proportion of its production. In this connection, it is worthwhile examining the statistics for 1983 relating to the company, supplied by the Italian authorities.
In 1983, the company exported to the other Member States:
- 30,5 % of its plastics,
- 44,4 % of its synthetic rubber and latex,
- 20,9 % of its fine chemicals,
- 17,3 % of its intermediates for detergents,
- 6,7 % of its fertilizers and pesticides,
- 14,3 % of its pharmaceutical products,
- 28,2 % of its synthetic fibres and textiles.
It must be borne in mind that these percentages correspond to large quantities of goods, as the company's total production of each of the products referred to above is considerable.
The company's output of products to which the research relates was worth Lit 2 500 million in 1983. The Italian authorities have stated that the destination of the research-related products will remain essentially the same as the present destination of similar products. As a guide, the Italian authorities indicated that the company estimates it will export about 40 % of its industrial auxiliaries production to the other Member States; it forecasts that it will export 10 % of its industrial intermediates production; it also forecasts that it will export its entire production of pesticide intermediates to non-member countries.
When the relative position of a firm vis-à-vis its competitors in intra-Community trade is strengthened by financial assistance from the State, that assistance must be regarded as affecting such trade. In the present case, the planned assistance, which would reduce the investment expenditure the chemical company in question would normally have to bear itself, is likely to affect trade and distort, or threaten to distort, competition by favouring the said company within the meaning of Article 92 (1) of the EEC Treaty. That provision states that, in principle, any aid fulfilling the criteria it sets out is incompatible with the common market.
The exceptions to this principle set out in Article 92 (2) of the Treaty are inapplicable in this case owing to the nature of the proposed aid, which would be granted under a law (Law No 46/82) which does not pursue the objectives specified in those exceptions.
Article 92 (3) of the Treaty lists the aids which may be considered to be compatible with the common market. Compatibility with the Treaty must be viewed in the context of the Community and not in that of a single Member State. In order to safeguard the proper functioning of the common market, the exceptions to the principle of Article 92 (1) set out in paragraph 3 of that Article must be understood in the strict sense in examining any aid scheme or any individual case, regard being had to the principle embodied in Article 3 (f) of the Treaty.
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 by itself induce the potential recipient to act in such a manner as to contribute to the attainment of one of the objectives set out in the exception clauses.
To apply such exceptions to cases in which the aid is not essential to the attainment of those objectives would be tantamount to granting an undue advantage to the industries or firms of certain Member States in that their financial position would be strengthened, and might affect trade between Member States and distort competition, without this being justified in any way by the Community interest within the meaning of Article 92 (3).
Without expressly mentioning any of the categories of exception provided for in Article 92 (3), the Italian Government, nevertheless, affirmed that the research programme satisfied the conditions underlying Law No 46/82, that is to say it would be highly innovative and, in general, not only would it not cause any distortions of competition contrary to the common interest but was indeed clearly of value to the Community as it would widen its technology base.
The Commission considers that the Italian Government was invoking the exception provided for in Article 92 (3) (c) in favour of aid to facilitate the development of certain economic activities. This exception is the one which the Commission considered could justify the general aid scheme introduced by Law No 46/82 as a means of promoting research, development and innovation in industry. As indicated above, the Commission examines each significant case of application of Law No 46/82 on its merits and having regard not only to the innovative aspects of the operation, which must contribute to the attainment of an objective in the common interest, but also to the effects of the aid on the competitive position of firms in the industry concerned.
The Commission thus proceeded to examine in detail the aid proposal in question to see whether any of the exceptions provided for in Article 92 (3) were applicable to it.
As to the exceptions provided for in Article 92 (3) (a) and (c), in favour of aid to promote or facilitate the development of certain areas, it should be noted that, first of all, the standard of living in the areas concerned is not abnormally low, secondly there is no serious underemployment there within the meaning of the exception in Article 92 (3) (a) and, thirdly, this exception was not mentioned by the Italian Government.
As to the exceptions provided for in Article 92 (3) (b), it is clear that the aid is intended neither to promote the execution of an important project of common European interest nor to remedy a serious disturbance in the Italian economy.
The last exception possible is that which is provided for in Article 92 (3) (c) in favour of aid to facilitate the development of certain economic activities.
This is the exception indirectly invoked by the Italian Government. After examining the research programme, the Commission has come to the conclusion, however, that the aid proposal in question does not qualify for application of this exception.
In the light of the observations submitted in writing by the Italian Government, the Governments of four other Member States and competing firms, and of the explanations given at a technical meeting by representatives of the Italian Government, the Commission has reached the conclusion that, while it has certain innovative features - and this is inevitable as the sectors in which the research is being carried out are fields in a constant state of flux where all the major chemical companies, whether they be European or from outside the Community, are conducting research - the research programme does not display on the whole the high degree of innovation required for the individual cases of application of Law No 46/82.
The Commission has established that the sectors in which the research is being carried out are as follows:
- new industrial auxiliaries,
- new processes for synthesizing industrial intermediates,
- new technologies for producing pesticides.
As regards the first sector, the Commission has been unable to find that the research is into new products not yet available on the market. As the Italian authorities themselves state, it is aimed at producing products having improved characteristics. The term 'new auxiliaries' is so sweeping and vague that it is impossible to assert, as the Italian authorities do, that the Community depends for its supplies of such products on more advanced, non-member countries. On the contrary, the larger part of industrial auxiliaries is produced by Community firms.
According to the Italian authorities, the company implementing the programme is already the European market leader in certain industrial auxiliaries; 40 % of the new auxiliaries would, moreover, be exported, in the proportions given by the Italian authorities, to the other Community countries.
As regards the sector of new processes for synthesizing industrial intermediates and that of new technologies for producing pesticides, the Commission has found that the technological innovations mentioned by the Italian authorities are, in reality, not as innovative as they claim. The Italian authorities also explained that, in the company's new plants, methyl isocyanate (MIC) is present as a temporary intermediate during the chemical process and, moreover, in very small quantities, i.e. less than 1,5 kilograms in the case of a plant producing 800 tonnes a year of carbonyl or carbufuron. The Commission, whilst it does not underestimate the scale of the effort made by the Italian firm, has established that other Community producers already use phosgene-free precursors such as dimethylurea and diphenyl carbonate which, from the point of view of the protection of health and safety, are comparable to the dimethylamine gas used by the Italian firm.
As regards the second innovative aspect referred to, that is, the presence during the chemical reaction, only temporarily and in small quantities, of MIC, the Commission is of the opinion that this is not a true innovation but is the consequence, rather, of the fact that the new plants use continuous processes. Any new plant using continuous processes rather than batch processes does not need to store the intermediate product MIC.
There are in the Community other plants using the continuous process in which, as a result, the quantities of the intermediate MIC are smaller than those found in conventional plants. Even if the Italian firm's new plants were to prove even better from the safety angle than those of the same type currently in existence, solely because they are more modern, this would not alter the Commission's assessment. The Commission considers that the present case involves normal technical improvements stemming from new investment rather than true innovations. As regards the research effort to reduce energy consumption, for example the activation of oxygenated water by zeolitic catalysis, which is the chief example given by the Italian authorities of the innovative nature of the research being carried out by the firm concerned, the Commission has found that other competing European firms state that they already use the same process.
In the Community there is at present a zeolite production capacity of the order of 300 to 320 000 tonnes, of which 200 000 tonnes are in Germany. It would appear, moreover, that several European companies are in the middle of an intensive programme of research into zeolites and that some already lay claim to innovations similar to those put forward by the Italian firm in question.
In the Commission's view, therefore, the programme at issue does not possess the highly innovative features which are essential if the aid the programme would receive is to qualify for application of the exception contained in Article 92 (3) (c) of the EEC Treaty.
In the chemical industry, it is only natural that firms should devote large sums of money to research into new processes, new products and the improvement thereof.
What is more, as indicated earlier, there is strong competition between Community firms in the sector to which the research relates, and trade in that sector is very substantial. In addition, the Commission has already pointed out that the products into which the research is being conducted are the subject of intra-Community trade, although it was unable to give precise figures on trade flows as NIMEXE often classifies whole groups of chemicals under one heading.
The Commission has already reproduced the statistics forwarded by the Italian authorities on exports in 1983 and on future estimates. Only in the case of pesticide intermediates does the firm not intend exporting to other Member States.
This is probably due to the awareness that Europe's pesticide requirements are satisfied in full without any difficulty, and shows that the Commission's position regarding the insufficiently innovative nature of the products in question is justified, for if they were really highly innovative they would without doubt be exported to other Community countries.
The Commission considers that in the case of the research programme in question the high degree of innovation is lacking. This factor is to be taken into consideration, together with the other factors examined above, in determining whether the aid awarded to the programme qualifies for application of the exception provided for in Article 92 (3) (c) of the EEC Treaty.
In short, in the Commission's opinion the proposed aid would be granted solely in the interests of the firm, which would enjoy a considerable financial advantage and would benefit from a reduction in the financing costs it would at all events have to bear in order to modernize its products and remain competitive, as the other European firms, which do not receive the same financial benefits, also have to do for their part. The proposed aid, which would favour the firm in question, would therefore adversely affect trading conditions to an extent contrary to the common interest.
Consequently, the aid proposal in question does not satisfy the conditions necessary for the application of one of the exceptions set out in Article 92 (2) and (3) of the EEC Treaty,
HAS ADOPTED THIS DECISION:
Article 1
The aid which the Italian Government proposes to grant under Law No 46/82 to an Italian firm with plants in the North and South of Italy, for the carrying-out of an innovation programme in the field of chemistry concerning industrial auxiliaiaries, intermediates and pesticides, is incompatible with the common market within the meaning of Article 92 of the EEC Treaty.
The Italian Government shall therefore refrain from implementing its aid proposal.
Article 2
The Italian Government shall inform the Commission within one month of the date of notification of this Decision of the measures it has taken to comply therewith.
Article 3
This Decision is addressed to the Italian Republic.
Done at Brussels, 23 April 1986.
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Commission Regulation (EC) No 1998/2003
of 13 November 2003
prohibiting fishing for cod by vessels flying the flag of Sweden
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (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 806/2003(2), and in particular Article 21(3) thereof,
Whereas:
(1) Council Regulation (EC) No 2341/2002 of 20 December 2002 fixing for 2003 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required(3), as last amended by Commission Regulation (EC) No 1754/2003(4), lays down quotas for cod for 2003.
(2) In order to ensure compliance with the provisions relating to the quantity limits on catches of stocks subject to quotas, the Commission must fix the date by which catches made by vessels flying the flag of a Member State are deemed to have exhausted the quota allocated.
(3) According to the information received by the Commission, catches of cod in the waters of ICES division IIIa Kattegat, by vessels flying the flag of Sweden or registered in Sweden have exhausted the quota allocated for 2003. Sweden has prohibited fishing for this stock from 13 October 2003. This date should be adopted in this Regulation also,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of cod in the waters of ICES division IIIa Kattegat, by vessels flying the flag of Sweden or registered in Sweden are hereby deemed to have exhausted the quota allocated to Sweden for 2003.
Fishing for cod in the waters of ICES division IIIa Kattegat, by vessels flying the flag of Sweden or registered in Sweden is hereby prohibited, as are the retention on board, transhipment and landing of this stock caught by the above vessels after the date of application of this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
It shall apply from 13 October 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 November 2003.
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COMMISSION REGULATION (EC) No 1652/2005
of 10 October 2005
opening a standing invitation to tender for the resale on the Community market of white sugar held by the French intervention agency
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the market in the sugar sector (1), and in particular Article 9(3) thereof,
Whereas:
(1)
France has intervention stocks of white sugar. In order to respond to market needs, it is appropriate to make the stocks of white sugar accepted into intervention between 1 April and 30 June 2005 by the French intervention agency available on the internal market.
(2)
Commission Regulation (EC) No 1262/2001 of 27 June 2001 laying down detailed rules for implementing Council Regulation (EC) No 1260/2001 as regards the buying in and sale of sugar by intervention agencies (2) should apply to such a sale. It is appropriate to derogate from that Regulation where necessary and to specify some specific rules of procedure.
(3)
To take account of the situation on the Community market, provision should be made for the Commission to fix a minimum selling price for each partial invitation to tender.
(4)
The French intervention agency should communicate the tenders to the Commission. The tenderers should remain anonymous.
(5)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
The French intervention agency shall offer for sale by standing invitation to tender on the Community internal market a total quantity of 20 000 tonnes of white sugar accepted into intervention between 1 April and 30 June 2005 and held by it.
Article 2
1. The tender and the sale provided for in Article 1 shall take place in accordance with Regulation (EC) No 1262/2001, except as otherwise provided by this Regulation.
2. By way of derogation from Article 22(2) and (3) of Regulation (EC) No 1262/2001, the French intervention agency shall draw up a notice of invitation to tender and publish it at least eight days before the beginning of the period for the submission of tenders.
The notice shall indicate, in particular, the terms of the invitation to tender.
The notice, and all changes to it, shall be forwarded to the Commission before publication.
Article 3
The minimum bid for each partial invitation to tender shall be 250 tonnes.
Article 4
1. The period during which tenders may be submitted in response to the first partial invitation to tender shall begin on 20 October and shall end on 26 October 2005 at 15.00, Brussels time.
The periods during which tenders may be submitted in response to the second and subsequent partial invitations shall begin on the first working day following the end of the preceding period. They shall end at 15.00, Brussels time:
-
on 9 and 23 November 2005,
-
on 7 and 21 December 2005.
2. Tenders shall be lodged with the French intervention agency:
Fonds d’intervention et de régularisation du marché du sucre
Bureau de l'intervention
21, Avenue Bosquet
F-75007 Paris
Tel. (33-1) 44 18 23 37
Fax (33-1) 44 18 20 08
Article 5
By way of derogation from Article 28(1)(a) of Regulation (EC) No 1262/2001, a tendering security of EUR 20 per 100 kg of white sugar shall be lodged by each tenderer.
Article 6
The French intervention agency shall communicate to the Commission tenders submitted within two hours from the expiry of the deadline for the submissions laid down in Article 4(1).
The tenderers shall not be identified.
Tenders submitted shall be communicated in electronic form according to be the model laid down in the Annex.
When no tenders are submitted, the Member State shall communicate this to the Commission within the same time-limit.
Article 7
1. The Commission shall fix the minimum sale price or decide not to accept the tenders in accordance with the procedure referred to in Article 42(2) of Regulation (EC) No 1260/2001.
2. Where an award at a minimum price set pursuant to paragraph 1 would result in the available quantity being exceeded, that award shall be limited to such quantity as is still available.
Where awards to all tenderers offering the same price would result in the quantity being exceeded, then the quantity available shall be awarded as follows:
(a)
by division among the tenderers concerned in proportion of the total quantities in each of their tenders; or
(b)
by apportionment among the tenderers concerned by reference to a maximum tonnage fixed for each of them; or
(c)
by drawing of lots.
Article 8
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 October 2005.
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Commission Decision
of 15 October 2003
laying down special conditions governing imports of fishery products from Cape Verde
(notified under document number C(2003) 3651)
(Text with EEA relevance)
(2003/763/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/493/EEC of 22 July 1991 laying down the health conditions for the production and the placing on the market of fishery products(1), as last amended by Regulation (EC) No 806/2003(2), and in particular Article 11 thereof,
Whereas:
(1) An inspection has been carried out on behalf of the Commission in Cape Verde to verify the conditions under which fishery products are produced, stored and dispatched to the Community.
(2) The requirements in the legislation of Cape Verde on health inspection and monitoring of fishery products may be considered equivalent to those laid down in Directive 91/493/EEC.
(3) In particular, the Direcção-Geral das Pescas (DGP) - Ministério do Ambiente, Agricultura e Pescas, is capable of effectively verifying the implementation of the legislation in force.
(4) The DGP has provided official assurances regarding compliance with the standards for health controls and monitoring of fishery products as set out in Chapter V of the Annex to Directive 91/493/EEC and regarding the fulfilment of hygienic requirements equivalent to those laid down by that Directive.
(5) It is appropriate to lay down detailed provisions concerning fishery products imported into the Community from Cape Verde, in accordance with Directive 91/493/EEC.
(6) It is also necessary to draw up a list of approved establishments, factory vessels, or cold stores, and a list of freezer vessels equipped in accordance with the requirements of Council Directive 92/48/EEC of 16 June 1992 laying down the minimum hygiene rules applicable to fishery products caught on board of certain vessels in accordance with Article 3(1)(a)(i) of Directive 91/493/EEC(3). These lists should be drawn up on the basis of a communication from the DGP to the Commission.
(7) Since the imports of fishery products from Cape Verde will be authorised ex-nuovo by this decision there is no need for a transitional period, and a period of three days is sufficient to ensure the publicity of the authorisation. Therefore, imports from this country may be permitted three days after the publication of the present Decision in the Official Journal of the European Union.
(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
The Direcção-Geral das Pescas (DGP) - Ministério do Ambiente, Agricultura e Pescas, shall be the competent authority in Cape Verde identified for the purposes of verifying and certifying compliance of fishery products with the requirements of Directive 91/493/EEC.
Article 2
Fishery products imported into the Community from Cape Verde shall meet the requirements laid down in Articles 3, 4 and 5.
Article 3
1. Each consignment shall be accompanied by a numbered original health certificate in accordance with the model in Annex I and comprising a single sheet, duly completed, signed and dated.
2. The certificate shall be drawn up in at least one official language of the Member State where the checks are carried out.
3. The certificate shall bear the name, capacity and signature of the representative of the DGP, and the latter's official stamp in a colour different from that of the endorsements.
Article 4
The fishery products shall come from approved establishments, factory vessels, or cold stores, or from registered freezer vessels listed in Annex II.
Article 5
All packages shall bear the words CAPE VERDE and the approval/registration number of the establishment, factory vessel, cold store or freezer vessel of origin in indelible letters, except in the case of frozen fishery products in bulk and intended for the manufacture of preserved foods.
Article 6
This Decision shall apply from 27 October 2003.
Article 7
This Decision is addressed to the Member States.
Done at Brussels, 15 October 2003.
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Commission Regulation (EC) No 1665/2003
of 22 September 2003
supplementing the Annex to Regulation (EC) No 2400/96 (Clementine del Golfo di Taranto, Mela Val di Non and Clementinas de las Tierras del Ebro or Clementines de les Terres de l'Ebre)
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 692/2003(2), and in particular Article 6(3) and (4),
Whereas:
(1) In accordance with Article 5 of Regulation (EEC) No 2081/92, Italy sent the Commission an application for the registration as a geographical indication of the name "Clementine del Golfo di Taranto" and for the registration as a designation of origin of the name "Mela Val di Non" and Spain sent the Commission an application for the registration as a geographical indication of the name "Clementinas de las Tierras del Ebro" or "Clementines de les Terres de l'Ebre".
(2) It has been found, in accordance with Article 6(1) of the Regulation, that the applications are in conformity, and include in particular all the particulars provided for in Article 4.
(3) No statement of objection, within the meaning of Article 7 of Regulation (EEC) No 2081/92, has been sent to the Commission following the publication in the Official Journal of the European Union(3) of the names listed in the Annex to this Regulation.
(4) The names consequently qualify for inclusion in the "Register of protected designations of origin and protected geographical indications" and to be protected at Community level as protected designations or protected geographical indications.
(5) The Annex to this Regulation supplements the Annex to Commission Regulation (EC) No 2400/96(4), as last amended by Regulation (EC) No 1491/2003(5),
HAS ADOPTED THIS REGULATION:
Article 1
The names listed in the Annex to this Regulation are hereby added to the Annex to Regulation (EC) No 2400/96 and entered in the "Register of protected designations of origin and protected geographical indications" as protected designations of origin (PDO) or protected geographical indications (PGI), 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 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, 22 September 2003.
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COMMISSION REGULATION (EC) No 1536/2006
of 13 October 2006
fixing the maximum aid for concentrated butter for the 18th individual invitation to tender opened under the standing invitation to tender provided for in Regulation (EC) No 1898/2005
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products (1), and in particular Article 10 thereof,
Whereas:
(1)
In accordance with Article 47 of Commission Regulation (EC) No 1898/2005 of 9 November 2005 laying down detailed rules for implementing Council Regulation (EC) No 1255/99 as regards measures for the disposal of cream, butter and concentrated butter on the Community market (2), the intervention agencies are opening a standing invitation to tender for the granting of aid for concentrated butter. Article 54 of that Regulation provides that in the light of the tenders received in response to each special invitation to tender, a maximum amount of aid is to be fixed for concentrated butter with a minimum fat content of 96 %.
(2)
An end-use security provided for in Article 53(4) of Regulation (EC) No 1898/2005 is to be lodged to ensure the taking over of the concentrated butter by the retail trade.
(3)
In the light of the tenders received, the maximum aid should be fixed at the appropriate level and the end-use security should be determined accordingly.
(4)
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 18th individual tender under the standing invitation to tender opened in accordance with Regulation (EC) No 1898/2005 the maximum amount of the aid for concentrated butter with a minimum fat content of 96 %, as referred to in Article 47(1) of that Regulation, is fixed at 19,8 EUR/100 kg,
The end-use security provided for in Article 53(4) of Regulation (EC) No 1898/2005 is fixed at 22 EUR/100 kg.
Article 2
This Regulation shall enter into force on 14 October 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 October 2006.
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COMMISSION DECISION
of 4 April 2005
authorising the placing on the market of isomaltulose as a novel food or novel food ingredient under Regulation (EC) No 258/97 of the European Parliament and of the Council
(notified under document number C(2005) 1001)
(Only the Dutch text is authentic)
(2005/457/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 30 October 2003 Cargill Incorporated, acting through Cerestar, made a request to the competent authorities of the United Kingdom to place isomaltulose as a novel food or novel food ingredient on the market.
(2)
On 19 March 2004 the competent authorities of the United Kingdom issued their initial assessment report.
(3)
In their initial assessment report the United Kingdom’s competent food assessment body came to the conclusion that the proposed uses for isomaltulose are safe for human consumption.
(4)
The Commission forwarded the initial assessment report to all Member States on 15 April 2004.
(5)
Within the 60-day period laid down in Article 6(4) of the Regulation, reasoned objections to the marketing of the product were raised in accordance with that provision.
(6)
At a meeting on 10 December 2004 Member States experts considered the initial assessment report as far as risk assessment was concerned and there was no need for further consultation of the European Food Safety Authority.
(7)
As regards the nutrition information included in the labelling and advertising of foods containing isomaltulose, the rules of Council Directive 90/496/EC of 24 September 1990 on nutrition labelling for foodstuffs (2) apply.
(8)
On the basis of the initial assessment report, it is established that isomaltulose complies with the criteria laid down in Article 3(1) of the Regulation.
(9)
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
Isomaltulose as specified in the Annex, may be placed on the market in the Community as a novel food or novel food ingredient for use in foodstuffs.
Article 2
The designation ‘isomaltulose’ shall be displayed on the labelling of the product as such or in the list of ingredients of foodstuffs containing it.
In a prominently displayed footnote related to the designation isomaltulose by means of an asterisk (*) the words ‘isomaltulose is a source of glucose and fructose’ shall be displayed. The words shall have a typeface of at least the same size as the list of ingredients itself.
Article 3
This Decision is addressed to Cargill Incorporated, c/o Cerestar, Havenstraat 84, B-1800 Vilvoorde.
Done at Brussels, 4 April 2005.
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COMMISSION DECISION
of 28 July 1999
on the granting of aid for the production of table olives in Greece
(notified under document number C(1999) 2465)
(Only the Greek version is authentic)
(1999/565/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organisation of the market in oils and fats(1), as last amended by Regulation (EC) No 1638/98(2), and in particular Article 5(4) thereof,
(1) Whereas Article 5(4) of Regulation No 136/66/EEC grants the Member States the possibility of allocating part of their national guaranteed quantities and of their olive-oil production aid to support for table olives under conditions to be approved by the Commission in accordance with the procedure laid down in Article 38 of that Regulation;
(2) Whereas Greece has presented a request in respect of the 1999/2000 and 2000/01 marketing years; whereas detailed rules should be laid down on the granting of the aid;
(3) Whereas provision should be made for the aid to be granted to growers of processed table olives from olive groves in Greece and the conditions governing the granting of the aid should be specified;
(4) Whereas the processing period should be defined as running from 1 September to 31 August; whereas olives which have undergone initial treatment in brine lasting at least 15 days, and have been removed from the brine definitively or, failing that, have undergone treatment making them fit for human consumption should be deemed to be processed olives;
(5) Whereas the weight of processed table olives on which aid is payable, and the equivalence between processed table olives and olive oil should be determined for the purposes of calculating the unit aid on table olives and of administering the national guaranteed quantities;
(6) Whereas undertakings processing table olives must be approved in accordance with conditions to be determined;
(7) Whereas provisions should be laid down for checks on aid for table olives; whereas those provisions must in particular cover crop declarations by table-olive growers, notifications by processors of the quantities of olives delivered by growers and leaving the processing chain, and the obligations on paying agencies regarding controls; whereas provision should be made for penalties on table-olive growers where their declarations conflict with the results of checks conducted;
(8) Whereas the information needed for calculating the aid to be granted to growers of processed table olives should be determined; whereas an advance on the aid may be granted under certain conditions;
(9) Whereas Greece must notify the Commission of the national measures adopted for the purposes of applying this Decision and of the information used for calculating the advance on the aid and the definitive aid;
(10) Whereas the measures provided for in this Decision are in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS DECISION:
Article 1
For the 1999/2000 and 2000/01 olive-oil marketing years, Greece is hereby authorised to grant aid for the production of table olives in accordance with this Decision.
Article 2
1. Aid for the production of table olives shall be granted to growers of olives which come from olive groves in Greece and are sent to approved processing undertakings for processing into table olives.
2. For each olive-oil marketing year, aid shall be granted for table olives processed between 1 September of the preceding marketing year and 31 August of the marketing year concerned.
3. Within the meaning of this Decision "processed table olives" means olives that have undergone for at least 15 days initial treatment in brine, and have been removed from the brine definitively or, failing that, have undergone treatment making them fit for human consumption.
Article 3
1. For the purposes of calculating the unit aid on table olives and of administering the national guaranteed quantities of olive oil, 100 kilograms of processed table olives shall be deemed to be equivalent to 13 kilograms of olive oil eligible for production aid as provided for in Article 5 of Regulation No 136/66/EEC.
2. The weight of processed table olives to be taken into consideration shall be the drained net weight of whole olives after processing, possibly bruised but not stoned.
Article 4
1. Approval numbers shall be allocated to undertakings which:
- submit an application for approval by 30 September preceding the olive-oil marketing year in question, accompanied by the information referred to in paragraph 2 and the commitments referred to in paragraph 3,
- market processed table olives, with or without additional preparation,
- have plants capable of processing at least 20 tonnes of olives per year in the islands and 50 tonnes of olives per year in the other zones.
2. Applications for approval shall include at least:
- a description of the processing plant and storage facilities, with details of their capacity,
- a description of the forms of table-olive preparations marketed, indicating the processing coefficient for each of them;
- details of stocks of table olives at various stages of preparation, by form of preparation, as at 1 September preceding the olive-oil marketing year in question.
3. For the purposes of approval, processors shall undertake to:
- keep table olives on which aid is payable separate from table olives originating in third countries and those on which aid is not payable when taking delivery of, processing and storing them,
- keep stock accounts covering table olives, linked to the financial accounts and indicating, for each day:
(a) the quantities of olives entering the establishment, showing each consignment separately and identifying the grower of each,
(b) the quantities of olives sent for processing and the quantities of table olives processed within the meaning of Article 2(3),
(c) the quantities of table olives for which the process of preparation has been completed,
(d) the quantities of table olives leaving the undertaking, broken down by form of preparation and indicating the consignees,
- provide the grower as referred to in Article 2(1) and the competent body with the documents and the information referred to in Article 6 in accordance with the conditions laid down therein,
- submit to all checks provided for under this Decision.
4. Approval shall be refused or immediately withdrawn where undertakings:
- fail to comply or no longer comply with the conditions for approval, or
- are prosecuted by the competent authorities for irregularities in respect of the arrangements provided for in Regulation No 136/66/EEC, or
- have been penalised for an infringement to that Regulation within the past 24 months.
Article 5
For the purposes of granting the aid for the production of table olives, in addition to the crop declaration laid down for olive-oil production aid, by 1 December of the current marketing year growers shall lodge a supplementary declaration or, as appropriate, a new declaration containing the same information as the crop declaration for olive oil but referring to table olives.
Where the information concerned has already been furnished by a crop declaration for olive oil and has not been subject to modification, the supplementary declaration shall simply indicate the references to the crop declaration and the parcels concerned.
The declarations concerning table olives shall be included in the alphanumeric database provided for in connection with the aid scheme for olive oil production.
Article 6
1. On delivery of the final consignment of olives and no later than 30 June, approved undertakings shall issue growers as referred to in Article 2(1) with a certificate of delivery showing the net weight of olives entering the undertaking.
The certificate must be supported by all the documentation relating to the weight of the olives delivered.
2. Approved undertakings shall notify the competent body and the control agency:
(a) by the 10th day of each month, of:
- the quantities of olives received, sent for processing and processed within the meaning of Article 2(3) in the course of the previous month,
- the quantities of olives prepared and sent out, broken down by form of preparation, in the course of the previous month,
- the aggregate quantities referred to in the first two indents and the stock situation at the end of the previous month;
(b) before 1 July, of the names of growers as referred to in Article 2(1) for the processing period referred to in Article 2(2) and of the quantities covered by certificates issued to them in accordance with paragraph 1;
(c) before 1 June of the following marketing year, of the total quantities delivered for the processing period referred to in Article 2(2) and of the total corresponding quantities processed.
Article 7
1. Before 1 July of the current marketing year, table-olive growers shall lodge aid applications, directly or indirectly, with the competent body, containing at least the following details:
- the name and address of the grower,
- the location of the holdings and the parcels where olives were harvested, with a reference to the relevant crop declaration,
- the approved undertaking to which the olives were delivered.
Such applications shall be accompanied by certificates of delivery as referred to in Article 6(1). However, for olives delivered between 1 July and 31 August certificates of delivery must be lodged no later than 1 September.
Where applicable, applications may be accompanied by an application for an advance on the aid.
2. Applications lodged after the deadline shall incur a penalty consisting in a reduction of 1 % of the amount to which the grower would have been entitled had the application been lodged by the due date, for each working day of delay. Applications lodged more than 25 days late shall be refused.
Article 8
1. Before the definitive payment of the aid, the competent body shall carry out the controls required to check:
- the quantities of table olives covered by certificates of delivery issued,
- the quantities of table olives processed, broken down by grower.
Controls shall involve:
- several physical inspections of goods in stock and a check of the accounts of approved undertakings,
- stricter checks of aid applications from olive growers applying for aid on both table olives and olive oil.
2. Greece shall see that all the necessary controls are in place to ensure that:
- entitlement to table-olive production aid is respected,
- olives entering an undertaking approved under this Decision are excluded from eligibility for olive-oil production aid,
- no more than one aid application is lodged for the same olives.
3. Without prejudice to the penalties laid down by Greece, no aid shall be granted to growers as referred to in Article 2(1) whose declarations as provided for in Article 5 or whose aid applications in accordance with Article 7 prove to conflict with the results of checks conducted. However, Article 15 of Commission Regulation (EC) No 2366/98(3) shall apply mutatis mutandis.
Article 9
1. Growers as referred to in Article 2(1) may receive an advance on the aid requested. The advance shall be equal to the unit amount referred to in Article 17(a)(1) of Council Regulation (EEC) No 2261/84(4), multiplied by the quantity of olive oil equivalent, in accordance with Article 3(1) of this Decision, to the relevant quantity of table olives processed.
For the purposes of granting advances to growers, the quantity of table olives processed shall be determined by applying a provisional processing coefficient to the quantity appearing in the certificate of delivery, as confirmed by the further information notified to the competent body. That coefficient shall be established by the competent body depending on the data available on the approved undertaking concerned. However, the quantity of table olives taken into consideration may not exceed 90 % of the quantity of table olives delivered.
2. Advances on the aid shall be paid from 16 October of the current marketing year to growers applying therefor in accordance with Article 7(1).
Article 10
1. Without prejudice to the reductions provided for in Article 20(d) of Regulation No 136/66/EEC, the aid shall be equal to the unit amount referred to in Article 17(a)(2) of Regulation (EEC) No 2261/84, multiplied by the quantity of olive oil equivalent, in accordance with Article 3(1) of this Decision, to the relevant quantity of table olives processed.
For the purposes of granting the aid to growers as referred to in Article 2(1), the quantity of table olives processed shall be determined by applying a processing coefficient for the undertaking concerned to the quantity appearing in the certificate of delivery, as confirmed by the further information notified to the competent body. That coefficient shall be equal to the ratio between the total quantity of table olives processed on the one hand, and the total quantity of table olives covered by certificates of delivery issued on the other hand, in respect of the olive-oil marketing year concerned.
Where the quantity of processed olives corresponding to the aid as set out in the certificate of delivery cannot be established, the quantities of table olives processed for the growers concerned shall be calculated on the basis of the average coefficient for the other undertakings. However, without prejudice to any claims which the olive growers concerned might make against the undertaking, that quantity of processed olives may not exceed 75 % of the quantity shown in the certificate of delivery.
2. The rate applicable for conversion of the amount of the aid into drachma shall be the agricultural conversion rate valid on the first day of the month in which the grower concerned makes his first delivery of olives.
3. Once the controls referred to in Article 8 have been carried out, the aid or, where applicable, the balance of the aid shall be paid to the grower in full within 90 days of fixing by the Commission of the unit amount thereof.
Article 11
Greece shall notify the Commission:
- without delay, of the national measures taken pursuant to this Decision,
- before 1 August of each marketing year, of the quantities of olive oil equivalent to the estimated output of table olives processed and of the provisional processing coefficients for that estimate,
- before 16 June of each subsequent marketing year, of the quantities of olive oil equivalent to the actual output of table olives processed and of the processing coefficients adopted.
Article 12
This Decision shall apply from 1 September 1999.
Article 13
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 28 July 1999.
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COMMISSION REGULATION (EEC) No 3026/91 of 14 October 1991 amending the list annexed to Regulation (EEC) No 3664/90 establishing, for 1991, the list of vessels exceeding eight metres length overall permitted to fish for sole within certain areas of the Community using beam trawls whose aggregate length exceeds nine metres
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European 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 3554/90 of 10 December 1990 adopting provisions for the establishment of the list of vessels exceeding eight metres length overall which are permitted to fish for sole within certain areas of the Community using beam trawls of an aggregate length exceeding nine metres (3), and in particular Article 2 thereof;
Whereas Commission Regulation (EEC) No 3664/90 (4), as last amended by Regulation (EEC) No 2740/91 (5), establishes for 1991 the list of vessels exceeding eight metres length overall permitted to fish for sole within certain areas of the Community using beam trawls of aggregate length exceeding nine metres;
Whereas the Dutch authorities have requested withdrawal from the list annexed to Regulation (EEC) No 3664/90 of one vessel that no longer meets the requirements laid down in Article 1 (2) of Regulation (EEC) No 3554/90; whereas the national authorities have provided all the information in support of the request required pursuant to Article 2 of Regulation (EEC) No 3554/90; whereas scrutiny of this information shows that the requirements of the Regulation are met; whereas the vessel in question should be withdrawn from the list,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EEC) No 3664/90 is amended as indicated in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 October 1991.
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COUNCIL DIRECTIVE of 20 February 1978 on waste from the titanium dioxide industry (78/176/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 100 and 235 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 waste from the titanium dioxide industry is liable to be harmful to human health and the environment ; whereas it is therefore necessary to prevent and gradually reduce pollution caused by such waste with a view to eliminating it;
Whereas the 1973 (3) and 1977 (4) European Communities' Programmes of Action on the Environment refer to the need to undertake Community action against waste from the titanium dioxide industry;
Whereas any disparity between the provisions on waste from the titanium dioxide industry already applicable or in preparation in the various Member States may create unequal conditions of competition and thus directly affect the functioning of the common market ; whereas it is therefore necessary to approximate laws in this field, as provided for in Article 100 of the Treaty;
Whereas it seems necessary for this approximation of laws to be accompanied by Community action so that one of the aims of the Community in the sphere of protection of the environment and improvement of the quality of life can be achieved by more extensive rules ; whereas certain specific provisions to this effect should therefore be laid down ; whereas Article 235 of the Treaty should be invoked as the powers required for this purpose have not been provided for by the Treaty;
Whereas Directive 75/442/EEC (5), concerns waste disposal in general ; whereas for waste from the titanium dioxide industry it is advisable to lay down a special system which will ensure that human health and the environment are protected against the harmful effects caused by the uncontrolled discharge, dumping or tipping of such waste;
Whereas in order to attain these objectives there should be a system of prior authorization as regards the discharge, dumping, storage, tipping or injecting of waste ; whereas the issue of this authorization should be made subject to specific conditions;
Whereas discharge, dumping, storage, tipping and injecting of waste must be accompanied both by monitoring of the waste and monitoring and surveillance of the environment concerned;
Whereas for existing industrial establishments Member States must, by 1 July 1980, draw up programmes for the progressive reduction of pollution caused by such waste with a view to its elimination ; whereas these programmes must fix the general reduction targets to be attained by 1 July 1987 at the latest and indicate the measures to be taken for each establishment;
Whereas for new industrial establishments Member States must issue a prior authorization ; whereas such authorization must be preceded by an environmental impact study and may be granted only to firms which undertake to use only those materials, processes and techniques available on the market that are least damaging to the environment,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. The aim of this Directive is the prevention and progressive reduction, with a view to its elimination, of pollution caused by waste from the titanium dioxide industry. (1)OJ No C 28, 9.2.1976, p. 16. (2)OJ No C 131, 12.6.1976, p. 18. (3)OJ No C 112, 20.12.1973, p. 3. (4)OJ No C 139, 13.6.1977, p. 3. (5)OJ No L 194, 25.7.1975, p. 39.
2. For the purpose of this Directive: (a) "pollution" means the discharge by man, directly or indirectly, of any residue from the titanium dioxide manufacturing process into the environment, the results of which are such as to cause hazards to human health, harm to living resources and to ecosystems, damage to amenities or interference with other legitimate uses of the environment concerned;
(b) "waste" means: - any residue from the titanium dioxide manufacturing process of which the holder disposes or is obliged to dispose under current national legislation;
- any residue from a treatment process of a residue referred to in the first indent;
(c) "disposal" means: - the collection, sorting, transport and treatment of waste as well as its storage and tipping above ground or underground and its injection into the ground;
- the discharge thereof into surface water, ground water and the sea, and dumping at sea;
- the transformation operations necessary for its re-use, recovery or recycling;
(d) "existing industrial establishments" means those industrial establishments already set up on the date of notification of this Directive;
(e) "new industrial establishments" means those industrial establishments which are in the process of being set up on the date of entry into force of this Directive or which are set up after that date. Extensions to existing industrial establishments leading to an increase of 15 000 tonnes per year or more in the titanium dioxide on-site production capacity of the establishment concerned shall be treated as new industrial establishments.
Article 2
Member States shall take the necessary measures to ensure that waste is disposed of without endangering human health and without harming the environment, and in particular: - without risk to water, air, soil and plants and animals;
- without deleteriously affecting beauty-spots or the countryside.
Article 3
Member States shall take appropriate measures to encourage the prevention, recycling and processing of waste, the extraction of raw materials and any other process for the re-use of waste.
Article 4
1. The discharge, dumping, storage, tipping and injection of waste are prohibited unless prior authorization is issued by the competent authority of the Member State in whose territory the waste is produced. Prior authorization must also be issued by the competent authority of the Member State - in whose territory the waste is discharged, stored, tipped or injected;
- from whose territory it is discharged or dumped.
2. Authorization may be granted for a limited period only. It may be renewed.
Article 5
In the case of discharge or dumping, the competent authority may, in accordance with Article 2 and on the basis of the information supplied in accordance with Annex I, grant the authorization referred to in Article 4 provided that: (a) the waste cannot be disposed of by more appropriate means;
(b) an assessment carried out in the light of available scientific and technical knowledge shows that there will be no deleterious effect, either immediate or delayed, on the aquatic environment;
(c) there is no deleterious effect on boating, fishing, leisure activities, the extraction of raw materials, desalination, fish and shellfish breeding, on regions of special scientific importance or on other legitimate uses of the waters in question.
Article 6
In the case of storage, tipping or injection, the competent authority may, in accordance with Article 2, and on the basis of the information supplied in accordance with Annex I, grant the authorization referred to in Article 4, provided that: (a) the waste cannot be disposed of by more appropriate means;
(b) an assessment carried out in the light of available scientific and technical knowledge shows that there will be no detrimental effect, either immediate or delayed, on underground waters, the soil or the atmosphere;
(c) there is no deleterious effect on leisure activities, the extraction of raw materials, plants, animals, on regions of special scientific importance or on other legitimate uses of the environment in question.
Article 7
1. Irrespective of the method and extent of treatment of the waste in question, its discharge, dumping, storage, tipping and injection shall be accompanied by the monitoring referred to in Annex II of the waste and of the environment concerned having regard to its physical, chemical, biological and ecological aspects.
2. The monitoring operations shall be carried out periodically by one or more bodies appointed by the Member State the competent authority of which has issued the authorization provided for in Article 4. In the case of cross-frontier pollution between Member States, the body in question shall be appointed jointly by the parties concerned.
3. Within one year of notification of this Directive, the Commission shall submit to the Council a proposal on the procedures for the surveillance and monitoring of the environments concerned. The Council shall act on this proposal within six months of the publication of the opinion of the European Parliament and that of the Economic and Social Committee in the Official Journal of the European Communities.
Article 8
1. The competent authority in the Member State concerned shall take all appropriate steps to remedy one of the following situations and, if necessary, shall require the suspension of discharge, dumping, storage, tipping or injection operations: (a) if the results of the monitoring provided for in Annex II (A) (1) show that the conditions for the prior authorization referred to in Articles 4, 5 and 6 have not been fulfilled, or
(b) if the results of the acute toxicity tests referred to in Annex II (A) (2) show that the limits laid down therein have been exceeded, or
(c) if the results of the monitoring provided for in Annex II (B) reveal a deterioration in the environment concerned in the area under consideration, or
(d) if discharge or dumping produces a deleterious effect on boating, fishing, leisure activities, the extraction of raw materials, desalination, fish and shellfish breeding, on regions of special scientific importance or on other legitimate uses of the waters in question, or
(e) if storage, tipping or injection produces a deleterious effect on leisure activities, the extraction of raw materials, plants, animals, on regions of special scientific importance or on other legitimate uses of the environments in question.
2. If several Member States are concerned, the measures shall be taken after consultation.
Article 9
1. Member States shall draw up programmes for the progressive reduction and eventual elimination of pollution caused by waste from existing industrial establishments.
2. The programmes mentioned in paragraph 1 shall set general targets for the reduction of pollution from liquid, solid and gaseous waste, to be achieved by 1 July 1987 at the latest. The programmes shall also contain intermediate objectives. They shall, moreover, contain information on the state of the environment concerned, on measures for reducing pollution and on methods for treating waste that is directly caused by the manufacturing processes.
3. The programmes referred to in paragraph 1 shall be sent to the Commission by 1 July 1980 at the latest so that it may, within a period of six months after receipt of all the national programmes, submit suitable proposals to the Council for the harmonization of these programmes in regard to the reduction and eventual elimination of pollution and the improvement of the conditions of competition in the titanium dioxide industry. The Council shall act on these proposals within six months of the publication of the opinion of the European Parliament and that of the Economic and Social Committee in the Official Journal of the European Communities.
4. Member States shall introduce a programme by 1 January 1982 at the latest.
Article 10
1. The programmes referred to in Article 9 (1) must cover all existing industrial establishments and must set out the measures to be taken in respect of each of them.
2. Where, in particular circumstances, a Member State considers that, in the case of an individual establishment, no additional measures are necessary to fulfil the requirements of this Directive, it shall, within six months of notification of this Directive, provide the Commission with the evidence which has led it to that conclusion.
3. After conducting any independent verification of the evidence that may be necessary, the Commission may agree with the Member State that it is not necessary to take additional measures in respect of the individual establishment concerned. The Commission must give its agreement, with reasons, within six months.
4. If the Commission does not agree with the Member State, additional measures in respect of that establishment shall be included in the programme of the Member State concerned.
5. If the Commission does agree, its agreement will be periodically reviewed in the light of the results of the monitoring carried out pursuant to this Directive and in the light of any significant change in the manufacturing processes or in environmental policy objectives.
Article 11
New industrial establishments shall be subject to applications for prior authorization made to the competent authorities of the Member State on whose territory it is proposed to build the establishments. Such authorizations must be preceded by environmental impact surveys. They may be granted only to firms which give an undertaking to use only such of the materials, processes and techniques available on the market as are least damaging to the environment.
Article 12
Without prejudice to this Directive, Member States may adopt more stringent regulations.
Article 13
1. For the purposes of this Directive, Member States shall supply the Commission with all the necessary information relating to: - the authorizations issued pursuant to Articles 4, 5 and 6,
- the results of the monitoring of the environment concerned carried out pursuant to Article 7,
- the measures taken pursuant to Article 8.
They shall also supply the Commission with general information concerning the materials, processes and techniques notified to them pursuant to Article 11.
2. Information acquired as a result of the application of this Article may be used only for the purposes of this Directive.
3. The Commission and the competent authorities of the Member States, their officials and other servants shall not disclose information acquired by them pursuant to this Directive and of a kind covered by the obligation of professional secrecy.
4. Paragraphs 2 and 3 shall not prevent publication of general information or surveys which do not contain information relating to particular undertakings or associations of undertakings.
Article 14
Every three years the Member States shall prepare a report on the prevention and progressive reduction of pollution caused by waste from the titanium dioxide industry and shall forward it to the Commission, which shall communicate it to the other Member States.
The Commission shall report every three years to the Council and the European Parliament on the application of this Directive.
Article 15
1. Member States shall bring into force the measures needed to comply with this Directive within 12 months, of its notification and shall forthwith inform the Commission thereof.
2. Member States shall communicate to the Commission the texts of the national laws which they adopt in the field covered by this Directive.
Article 16
This Directive is addressed to the Member States.
Done at Brussels, 20 February 1978.
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Commission decision
of 3 April 2002
on the State aid granted by the Federal Republic of Germany for ILKA MAFA Kältemaschinenbau GmbH
(notified under document number C(2002) 1190)
(Only the German text is authentic)
(Text with EEA relevance)
(2002/823/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the provisions cited above(1),
Whereas:
I. PROCEDURE
(1) By letter dated 27 March 1998 Germany informed the Commission of restructuring aid for the privatisation of ILKA MAFA Kältemaschinenbau GmbH (ILKA MAFA) and its sale to Carrier. However, Carrier withdrew from the privatisation contract on 31 December 1998.
(2) On 30 December 1999, Germany again notified restructuring aid for the privatisation of ILKA MAFA; the purchasing company this time was GEA AG. By letter dated 3 April 2000 Germany provided the Commission with further information.
(3) By letter dated 1 August 2000, the Commission informed Germany that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the aid to ILKA MAFA.
(4) The Commission decision to initiate the procedure was published in the Official Journal of the European Communities(2). The Commission invited interested parties to submit their comments on the aid.
(5) The Commission received no comments from interested parties.
(6) ILKA MAFA is a successor company(3) to the former ILKA MAFA Kältetechnik GmbH (Ilka-old). Ilka-old belonged to a group of eight companies from the former GDR which were first privatised in 1994 as the EFBE Verwaltungs GmbH & Co. Management KG, now Lintra Beteiligungsholding GmbH. Since the original privatisation concept failed in December 1996, it was decided in January 1997 by the Bundesanstalt für vereingungsbedingte Sonderaufgaben (BvS) to continue the restructuring of potentially viable Lintra-subsidiaries with the aim of preparing these companies for resale. Since Ilka-old had received aid that was to be assessed in the context of the other notified restructuring aid, the case was registered as non-notified aid. The aid paid to Ilka-old via Lintra Beteiligungsholding GmbH was the subject of Commission Decision 2001/673/EC on aid to EFBE Verwaltungs GmbH & Co. Management KG/Lintra Beteiligungsholding GmbH(4).
II. DETAILED DESCRIPTION OF THE AID
(7) ILKA MAFA was set up at the end of 1997 by Ilka-old in preparation for the second privatisation after it had become evident that the privatisation concept under Lintra Beteiligungsholding GmbH had failed. From 11 December 1997 onwards, Ilka-old was named Dipa-Industrie- und Vermögensverwaltungsgesellschaft (Dipa). Insolvency proceedings were started against Dipa on 1 January 2000.
(8) A privatisation contract was concluded in 1997 with Carrier. Carrier, however, withdrew its interest on 31 December 1998. Following this, BvS started looking for another investor, contacting ten domestic and foreign manufacturers of refrigeration plant and machinery. GEA AG was the only company which was interested in taking over ILKA MAFA.
(9) The privatisation agreement was concluded on 27 September 1999 between BvS, Dipa and GEA AG on the takeover of ILKA MAFA. The purchase price paid to Dipa was DEM 500000.
(10) ILKA MAFA is located in Döllnitz bei Halle, Saxony-Anhalt. Its activities are the production, distribution, assembly, installation and maintenance of refrigerating systems (water-cooled chillers) for environmentally compatible, ammonia-based refrigeration. Water-cooled chillers are used in the food and chemicals industries, industrial production, the air conditioning of buildings and in sports facilities.
(11) The investor for the second restructuring project is GEA AG, the management holding company of the GEA Group, which has some 150 operational companies worldwide. The group has a total of 14000 workers and its turnover in 1999/2000 was EUR 2,3 billion.
(12) The restructuring plan provides mainly for cost savings through the synergy effects of belonging to a large group, e.g. joint purchasing. Distribution will be through the group's worldwide sales network. To save costs, the administration functions will be taken over by a sister company, Grasso RT Berlin.
(13) The company will focus in future on the core business, which is the production and assembly of water-cooled chillers. It will in particular manufacture chillers of different sizes and performance categories to meet individual customers' specifications. Replacement and modernisation investment is also provided for, and joint R& D activities will be stepped up.
(14) The investor will employ on average 45 full-time workers for a three-year period starting in November 1999. The activities of the company will be carried on until at least 31 December 2004.
(15) As explained in recital 7, ILKA MAFA was set up in December 1997 to prepare for privatisation and for takeover by Carrier. The restructuring period was to last from 1 December 1997 to 31 December 2001. As explained above, Carrier withdrew its interest in late 1998. The restructuring period of the present investor GEA AG began on 1 October 1999 and ended on 31 December 2001. The whole period since end 1997 was notified as the restructuring period for Ilka-old, since the restructuring process had begun before the withdrawal of Carrier, and it continued also in 1998 and 1999 before the privatisation to GEA AG.
(16) According to the forecasts in the restructuring plan, the company will make a slight profit of DEM 14000 in 2002 from a turnover of DEM 16,2 million. For 2003 the profit forecast was DEM 670000 with a turnover of DEM 17,4 million, and, for 2004, DEM 1,1 million with a turnover of DEM 18,2 million.
(17) The restructuring plan as assessed by the Commission in its decision to initiate the procedure was to be financed as follows:
TABLE
(18) In addition to the financing shown in the table, Germany announced a contribution of DEM 2,760 million to the labour costs. The contribution would be made by the workforce of ILKA MAFA, who would waive 12,5 % of their annual wages/salaries during the restructuring.
(19) In its decision opening the procedure the Commission noted that the share of the public financing would be DEM 28,198 million, representing 77 % of the total costs. The investor contribution would be DEM 8,381 million representing 23 % of the total costs. Therefore, the Commission had doubts whether the investor contribution to the restructuring could be considered significant as provided in the Community guidelines on State aid for rescuing and restructuring firms in difficulty(5) (guidelines).
(20) In addition, the Commission noted that of the DEM 9,8 million allocated by the investor in the restructuring plan for investment and reorganisation, a total of DEM 1,1 million was to be used for setting up sales offices in Scandinavia and Japan and for expanding the sales network in South America. Since ILKA MAFA's sales operations are to be taken over by the parent group, the Commission doubted whether the part of the aid linked to these investments will really be granted to ILKA MAFA, whether these investments were essential for restoring the viability of the company and whether the aid was thereby limited to the strictly necessary.
(21) The Commission also pointed out that as a result of the final decision in case C-41/99 Lintra Beteiligungsholding GmbH some additional claims against the former Ilka-old might arise that would have to be added to the costs of the present restructuring plan. The exact amount of these was not established at the time of the decision to initiate the procedure but would be made clear in the final decision. These additional liabilities should be taken into account in the assessment of the proportionality of the aid.
III. COMMENTS FROM GERMANY
(22) As regards the Commission's doubts about the insufficient investor contribution, Germany explains that the calculation should also take account of the fact that the restructuring period with the present investor began on 1 October 1999, whereas the overall restructuring period started in December 1997. Consequently, the total volume of funding was initially higher than the amount provided by the new investor.
(23) If the costs of the restructuring are assessed on the sole basis of the period from 1 October 1999 to 31 December 2001, the contribution by the investor and ILKA MAFA amounts to 52 %, which must be regarded as a significant contribution to the restructuring plan.
(24) As regards the Commission's doubts about the necessity for the DEM 1,1 million investment earmarked for the establishment of sales offices, Germany explains that one of the most glaring weaknesses of most companies from the new Länder has been, and still remains, their inadequate distribution structure. Particularly in globalised sectors of activity such as the refrigeration and air-conditioning industry, a well-developed and efficient global distribution network is one of the cornerstones of a company's long-term success.
(25) Germany stresses that through its close cooperation with the other companies in the GEA refrigeration division, ILKA MAFA has free access to a well-developed distribution network and the means of expanding this network at low cost. The amount of DEM 1,1 million represents only a small part of the GEA refrigeration division's total investment in new distribution organisations. Besides, ILKA MAFA will only contribute to the establishment of those new channels if they are of particular interest for the marketing of its products.
(26) As regards the potential additional liabilities incurred by the former Ilka-old in the framework of the present procedure, Germany refers to its opinion delivered in case C-41/99 Lintra Beteiligungsholding GmbH. The opinion relates to Lintra's claim against Ilka-old, amounting to DEM 1787586. This claim was being settled from the assets remaining after the liquidation of Dipa.
IV. ASSESSMENT OF THE AID
(27) According to Article 87(1) of the EC Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market. Pursuant to the established case-law of the European Courts, the criterion of trade being affected is met if the recipient firm carries out an economic activity involving trade between Member States.
(28) The Commission notes that the notified aid was granted from State resources to a particular company, which benefited from a reduction of the costs it would normally have to bear in carrying out the notified restructuring project. Moreover, the recipient of the aid, ILKA MAFA, develops, produces and assembles chillers, which activities involve trade between Member States. Therefore, the aid in question falls within the scope of Article 87(1) of the EC Treaty.
(29) The notified project concerns restructuring of the company in accordance with the restructuring plan submitted by the investor. The Commission was originally informed about the restructuring on 27 March 1998. The Commission notes that the restructuring aid for firms in difficulty is assessed pursuant to the guidelines. According to these a rescue and restructuring may within the meaning of Article 87(3)(c) of the Treaty contribute to the development of certain economic activities where it does not adversely affect trading conditions to an extent contrary to the common interest, if the conditions laid down in the guidelines are met.
(30) The Commission notes that the present guidelines entered into force on 9 October 1999. According to point 7.5., the guidelines apply if some or all of the aid is granted after their entry into force. Since part of the aid to the notified restructuring is, according to the notification, to be granted after this date, the 1999 guidelines apply to the notified restructuring.
(31) According to point 2.1. of the guidelines, typical symptoms of a firm in difficulty are deteriorating profitability or increasing size of losses, diminishing turnover, declining cash flow and low net asset value. The Commission notes that both Ilka-old and ILKA MAFA have been loss-making since 1994. The losses when the original notification was submitted were DEM 6,687 million and when the present restructuring plan was submitted DEM 1,8 million. Therefore, the company is regarded as a firm in difficulty, and aid for its restructuring is assessed according to the guidelines.
(32) Under the guidelines, newly created firms are not eligible for rescue and restructuring aid, even if their initial financial position is insecure. This is the case in particular where a new firm emerges from the liquidation or takeover of a previous firm. Footnote 10 of the guidelines states that "the only exceptions to this rule are cases dealt with by the Bundesanstalt für vereinigungsbedingte Sonderaufgaben in the context of its privatisation remit and other similar cases in the new Länder, involving companies emerging from a liquidation or a take-over of assets occurring up to 31 December 1999". The Commission notes that ILKA MAFA used to be a BvS-owned company and it is situated in the new Länder. It was set up in 1997 with a view to the future privatisation and it took over the relevant assets of Ilka-old before the deadline of 31 December 1999. For these reasons ILKA MAFA is eligible for rescue and restructuring aid.
(33) According to point 3.2.3 of the guidelines, restructuring aid should be granted once only. However, footnote 25 of the guidelines states that the section does not apply to cases of aid granted to enterprises in the former German Democratic Republic which were notified before 31 December 2000. Since the aid to ILKA MAFA was notified before the deadline laid down in the guidelines, the company can be granted restructuring aid for the second time.
(34) According to the guidelines, the aid should be in proportion to the restructuring costs and benefits. Section 3.2.2(d) stipulates that the aid needs to be limited to the strict minimum necessary to enable restructuring to be undertaken and must be related to the benefits anticipated from the Community's point of view. Aid beneficiaries should make a significant contribution to the restructuring plan from their own resources. No aid should go to finance new investment that is not essential for restoring the firm's viability.
(35) In its decision opening the procedure the Commission doubted whether the investor contribution of 23 % could be considered significant in the meaning of the Guidelines. In addition, it doubted whether the aid linked with the foreseen DEM 1,1 million investment in distribution network was essential for restoring the company's viability.
(36) Germany communicated changes to the original restructuring plan by letter dated 20 July 2001. The changes relate to the three following points: the extension of the restructuring period, the increased investor contribution and the deletion of the sales network investments from the restructuring plan.
(37) The period for implementing the GEA restructuring plan now extends from 1999 to 2003. Germany explained that in 1999 the financial result was better than foreseen mainly due to booking proceeds in the financial accounts which would be subject to costs the following year. The year 2000 consists only of nine months, since the financial year needed to be synchronised with that of the other companies of the GEA-group. The target result and turnover were not achieved, since there were virtually no orders at the beginning of the year. In 2001 the turnover target was nearly achieved, but the operating result was worse than predicted. The reason for this was a one-year delay in development of semi-hermetic compressors. The proposed savings in material costs could therefore not be achieved. The financial situation is not expected to improve until 2002/2003 and the operating result until 2004, instead of 2002.
(38) When asked by the Commission to explain the reasons for the delays and why these were not foreseen in the original restructuring plan, Germany explained in its letter of 14 November 2001 that the delays occurred for technical reasons. They were not foreseen in the original plan, since at the time of taking over ILKA MAFA the investor, GEA was not fully aware of all the technical details of the latter's product range. After the takeover a working group consisting of employees of ILKA MAFA and the GEA group was set up to analyse certain products manufactured by both of them. It was concluded that the compressors used by ILKA MAFA were technically outdated and needed to be replaced in order to have a competitive product. In particular, it was also concluded that the material costs of the old product were much too high.
(39) According to Germany, in view of this unforeseen need for adaptation and reconstruction of the compressors, it was decided to replace the two production lines by the end of 2001. Due, however, to technical problems, replacement was delayed by almost a year and will only be completed by end September 2002. Without these delays, the planned cost savings would have been achieved earlier, since the new products have much lower material costs. This means in practice that the company had to bear the higher production costs one year longer than planned, which is reflected in the financial results of the company.
(40) As regards the increased investor contribution, Germany explains that the investor is making available to ILKA MAFA a DEM 3,2 million credit line(6) for covering the potential liability and other guarantee claims of the clients. Since the investments in PC systems and networks are DEM 0,5 million higher than forecast, the investor is also increasing its own contribution to the investments by that amount. The increased investor contribution therefore totals DEM 3,7 million.
(41) The Commission notes that the foreseen DM 1,1 million investment in sales networks has been deleted from the investment plan. Instead the amount will be used as follows:
- test stands for chillers were DEM 0,7 million more expensive than forecast,
- office renovation and construction was DEM 150000 more expensive,
- production equipment was DEM 150000 more expensive,
- storage and logistics costs: DEM 100000.
(42) Also in the revised restructuring plan, the financing for the period before the sale to the GEA group, from 1 December 1997 to 30 September 1999, remains unchanged. The total cost for the period, DEM 12,8 million, is borne by the State (BvS and Saxony-Anhalt). The restructuring aid for the GEA group from 1 October 1999 onwards remains unchanged at DEM 8,948 million. The total amount of public financing and, hence, aid is therefore DEM 28,198 million. This is the same as in the original plan. No increase in aid is associated therefore with the revised restructuring plan.
(43) As explained in recital 40, according to the new plan the investor's contribution has been increased by DEM 3,7 million. This is the result of a higher direct investment contribution of DEM 500000 and a DEM 3,2 million credit line for covering potential guarantee claims from clients. The financing of the revised plan breaks down as follows:
TABLE
(44) As regards the workforce's restructuring contribution of DEM 2,760 million, the Commission notes that this amount has been included in the restructuring costs, because it is an actual contribution to those costs. This should not be seen as a contribution from the investor, however, since it will be funded neither from the investor's financial resources nor from ILKA MAFA's(7).
(45) As regards its doubts expressed in the opening of the procedure concerning the amount of the investor's contribution to the restructuring, the Commission notes that this was increased by a total of DM 3,7 million in the revised restructuring plan and now amounts to 28 %. In accordance with the Commission's previous practice in the eastern German restructuring aid cases(8), this can be considered as a significant contribution within the meaning of the guidelines.
(46) As regards the doubts concerning the investment in the sales network, the Commission notes that this investment has been replaced by direct investments in the production facilities of ILKA MAFA. For this reason the doubts about whether ILKA MAFA was the real and/or the only beneficiary of the aid relating to those investments have been allayed.
(47) The Commission notes, however, that the restructuring period has been extended by two years. Germany explains that this is due to the unforeseen need to replace some additional production facilities and the resultant technical difficulties.
(48) An essential element of the restructuring plan communicated by Germany in 1999 was the replacement and modernisation of the production facilities and development of new products. In its decision opening the procedure, the Commission stated that it had no doubts as regards the ability of the restructuring plan to restore the long term viability of the company.
(49) The decision to replace an additional production facility after an in-depth examination of ILKA MAFA's production range is in line with the original restructuring plan and does not involve changes of substance or the introduction of new strategies or measures not already provided for in the original plan. Had it been possible to carry out the additional replacement of a production facility as planned without the delay, the timetable for achieving an operating profit would have been kept, according to the information provided. The delays caused by the technical difficulties affect the operating result accordingly and postpone the date for achieving profitability. The restructuring plan, however, is carried out as planned. The Commission therefore considers that, despite the extension of the restructuring period on account of the technical difficulties, the ability of the plan to restore viability to the company is unaffected.
(50) According to the guidelines, the restructuring plan must restore the long-term viability of the company within a reasonable timeframe. The delay defers for two years the moment when the company will achieve profitability. As the original restructuring period for the present investor was only two years (1999 to 2001), the deadline for restoring profitability is still, despite the two-year delay, within a reasonable timeframe, as stipulated in the guidelines.
(51) In accordance with the "one time, last time" condition laid down in point 3.2.3 of the guidelines, restructuring aid can be granted only once. Further restructuring aid can only be allowed in exceptional and unforeseeable circumstances for which the company is not responsible. The extension of the original restructuring period, however, does not lead in the present case to any increase of aid. On the contrary, the investor contribution has been increased, and to a degree that is significant within the meaning of the guidelines.
(52) So that the Commission can monitor the implementation of the revised restructuring plan, Germany is requested to provide an annual report on the progress of the restructuring from 2001 to 2004. The report is to be submitted by the end of March of the following year and should contain all relevant information to enable the Commission to check the implementation of the authorised restructuring programme, the payment of aid to the company and its financial position. Further changes to the restructuring plan will be examined in accordance with point 3.2.4 of the guidelines.
(53) In its decision opening the procedure the Commission reserved its position on the possible additional claims against Ilka-old resulting from Case C-41/99 Lintra Beteiligungsholding GmbH.
(54) The Commission took its final decision 2001/673/EC in case C-41/99 on 28 March 2001(9). By letter dated 17 September 2001, Germany informed the Commission that the aid of DEM 1787586 granted to the former ILKA MAFA Kältetechnik GmbH, which had been declared unlawful by the decision, had been recovered with interest, giving a total of DEM 2235114. Evidence of payment dated 6 September 2001 has been submitted to the Commission. The unlawful aid was paid back by Dipa Industrie und Vermögensverwaltung GmbH(10) in liquidation.
V. CONCLUSION
(55) Germany has unlawfully granted aid amounting to EUR 14,417 million to ILKA MAFA Kältemaschinenbau GmbH in breach of Article 88(3) of the Treaty. However, since this aid complies with the 1999 Community guidelines on State aid for rescuing and restructuring firms in difficulty, it is compatible with Article 87(3)(c) of the Treaty,
HAS ADOPTED THIS DECISION:
Article 1
The State aid which Germany has implemented for ILKA MAFA Kältemaschinenbau GmbH, amounting to EUR 14417000 (DEM 28198000) is compatible with the common market within the meaning of Article 87(3)(c) of the EC Treaty.
Article 2
Germany shall provide an annual report to the Commission on the progress of the restructuring for the period 2001 to 2004. The report shall be provided by the end of March of the following year. It shall contain all the relevant information that the Commission needs to monitor the implementation of the authorised restructuring plan, the receipt of the aid by the company and its financial position.
Article 3
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 3 April 2002.
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COMMISSION REGULATION (EEC) No 516/91 of 28 February 1991 concerning the stopping of fishing for cod by vessels flying the flag of France
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control measures for fishing activities (1), as last amended by Regulation (EEC) No 3483/88 (2), and in particular Article 11 (3) thereof,
Whereas Council Regulation (EEC) No 3928/90 of 20 December 1990 allocating, for 1991, certain catch quotas between Member States for vessels fishing in the Norwegian exclusive economic zone and the fishing zone around Jan Mayen (3), provides for cod quotas for 1991;
Whereas, in order to ensure compliance with the provisions relating to the quantitative limitations on catches of stocks subject to quotas, it is necessary for the Commission to fix the date by which catches made by vessels flying the flag of a Member State are deemed to have exhausted the quota allocated;
Whereas, according to the information communicated to the Commission, catches of cod in the waters of ICES divisions I and II (Norwegian waters north of 62° N) by vessels flying the flag of France or registered in France have reached the quota allocated for 1991;
HAS ADOPTED THIS REGULATION:
Article 1
Catches of cod in the waters of ICES divisions I and II (Norwegian waters north of 62° N) by vessels flying the flag of France or registered in France are deemed to have exhausted the quota allocated to France for 1991.
Fishing for cod in the waters of ICES divisions I and II (Norwegian waters north of 62° N) by vessels flying the flag of France or registered in France is prohibited, as well as the retention on board, the transhipment and the landing of such stock captured by the above mentioned vessels after the date of entry into force of this Regulation.
Article 2
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 February 1991.
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Council Regulation (EC) No 2766/2000
of 14 December 2000
establishing certain concessions in the form of Community tariff quotas for certain agricultural products and providing for an adjustment, as an autonomous and transitional measure, of certain agricultural concessions provided for in the Europe Agreement with Lithuania
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof,
Having regard to the proposal from the Commission,
Whereas:
(1) The Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Lithuania, of the other part(1), provides for certain concessions for certain agricultural products originating in Lithuania.
(2) Improvements to the preferential agreements of the Europe Agreement with Lithuania were provided for in the Protocol adjusting trade aspects of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Lithuania, of the other part, to take into account of the accession of the Republic of Austria, of the Republic of Finland and of the Kingdom of Sweden to the European Union and the outcome of the Uruguay Round negotiations on agriculture including improvement to the existing preferential agreements(2). The Council approved the abovementioned Protocol on behalf of the Community by Decision 98/677/EC(3).
(3) In accordance with the directives adopted by the Council on 30 March 1999, the Commission and the Republic of Lithuania concluded on 5 June 2000 negotiations on a new Additional Protocol to the Europe Agreement.
(4) The new Additional Protocol, which provides for additional agricultural concessions, will be based on Article 20(4) of the Europe Agreement, establishing that the Community and Lithuania are to examine in the Association Council, product by product and on an orderly and reciprocal basis, the possibility of granting each other further concessions.
(5) A swift implementation of the adjustments forms an essential part of the results of the negotiations for the conclusion of a new Additional Protocol to the Europe Agreement with Lithuania.
(6) It is therefore appropriate to provide for the adjustment, as an autonomous and transitional measure, of the agricultural concessions provided for in the Europe Agreement with Lithuania.
(7) Lithuania will take all useful legislative provisions, on an autonomous and transitional basis, in order to enable a rapid and simultaneous implementation of the adaptation of the agricultural concessions of Lithuania provided for in the Europe Agreement.
(8) The measures necessary for the implementation of this Regulation should be 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(4).
(9) Commission Regulation (EC) 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(5) codified the management rules for tariff quotas designed to be used following the chronological order of dates of customs declarations,
HAS ADOPTED THIS REGULATION:
Article 1
1. The arrangements for import into the Community applicable to certain agricultural products originating in Lithuania as set out in Annexes A(a) and A(b) to this Regulation shall replace those set out in Annex Va to the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Lithuania, of the other part.
2. On the entry into force of the new Additional Protocol adjusting the Europe Agreement referred to in paragraph 1, the concessions provided for in that Protocol shall replace those referred to in Annex A(a) and A(b) to this Regulation.
3. The Commission shall adopt detailed rules for the application of this Regulation in accordance with the procedure laid down in Article 3(2).
Article 2
1. Tariff quotas with an order number above 09.5100 shall be administered by the Commission in accordance with Articles 308a, 308b and 308c of Regulation (EEC) No 2454/93.
2. Quantities of goods subject to tariff quotas and released for free circulation as from 1 July 2000 under the concessions provided for in Annex V(a) to the Europe Agreement in accordance with the provisions of Council Regulation (EC) No 1926/96(6) before the entry into force of this Regulation shall be fully counted against the quantities provided for in the Annex A(b) to this Regulation.
Article 3
1. The Commission shall be assisted by the committee instituted by Article 23 of Council Regulation (EC) No 1766/92 of 30 June 1992 on the common organisation of the market of cereals(7) or, where appropriate, the committee instituted by the relevant provisions of the other Regulations on the common organisation of agricultural markets, hereafter referred to as the "Committee".
2. Where reference is made to this paragraph, the procedure laid down in Articles 4 and 7 of Decision 1999/468/EC shall apply.
The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.
3. The Committee shall adopt its rules of procedure.
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.
It shall apply from 1 January 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 December 2000.
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Commission Decision
of 21 April 1999
on the treatment by the Netherlands tax authorities of a technolease agreement between Philips and Rabobank
(notified under document number C(1999) 1122)
(Only the Dutch text is authentic)
(Text with EEA relevance)
(2000/735/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular Article 93(2), second paragraph,
Having requested the parties concerned to submit their comments pursuant to those Articles,
Whereas:
I. PROCEDURES
(1) By means of press articles dated January/February 1997 mentioning that the Netherlands tax authorities had accepted a technolease agreement between Philips and Rabobank that would impose a large but unspecified burden on the State budget, the Commission was informed that the Netherlands may have been granting aid to Philips and/or Rabobank within the framework of a technolease agreement.
(2) By letter of 24 April 1997, the Commission informed the Netherlands that the procedure provided for in Article 93(2) of the EC Treaty had been initiated in respect of the aid that may have been granted in the form of a tax advantage within the framework of an agreement on sale-leaseback of know-how between Philips and Rabobank (hereafter the technolease agreement).
(3) The Commission has not received any comments from other Member States or third parties concerned.
II. DESCRIPTION
(4) In 1992, Philips sold a defined quantity of its know-how with a value on its balance sheet of NLG 2200 million to its subsidiary Electrologica. In return Philips received the shares of Electrologica and provided a loan at an annual interest rate of 7 %. Electrologica then leased the know-how to Philips and in turn was compensated by the royalties it received from Philips.
(5) On 30 November 1993 Philips and Rabobank agreed that Philips would sell its shares in Electrologica to Rabobank on 3 January 1994. The market value of the know-how then was estimated NLG 2800 million. Rabobank paid NLG 640 million in cash to Philips for the shares in Electrologica. In addition, Philips kept its claim on Electrologica, from that moment on a subsidiary of Rabobank. Furthermore Rabobank and Philips agreed that 50 % of the future revenues from sublicensing (parts of) the know-how of Electrologica to third parties would go to Philips and 50 % to Rabobank.
(6) The sale-leaseback contract between Philips and Electrologica provided for yearly interest payments of NLG 154 million by Electrologica to Philips and yearly royalty payments of NLG 140 million by Philips to Electrologica. Furthermore, once 10 years have elapsed after the acquisition of the shares in Electrologica by Rabobank, Rabobank will have for the following 24 months the right to sell the shares in Electrologica to Philips for NLG 50 million.
(7) By the transfer of the shares in Electrologica from Philips to Rabobank, Electrologica is no longer part of the tax group of Philips. This means that the taxable income of Elecrtrologica is no longer consolidated with the taxable income of Philips. After the transfer Electrologica forms a part of the tax group of Rabobank so the taxable income of Electrologica will from then on be consolidated with the taxable income of Rabobank.
(8) Overall the technolease agreement implies a shift in taxable income between the tax group of Philips and the tax group of Rabobank because the exclusive right to depreciate on the know-how is shifted from Philips to Rabobank. In return Philips receives from Rabobank an immediate cash payment of NLG 640 million and an inter-group debt of NLG 2200 million is converted in a loan to Rabobank which implies a substantial improvement of the figures on the balance sheet of Philips.
(9) Both Philips and Rabobank are private enterprises. Philips is listed at the Amsterdam Exchanges and Rabobank is a cooperative. The Netherlands authorities are not a stakeholder in either one of them. The technolease agreement therefore is a commercial transaction between private parties.
(10) The Commission decided to initiate the procedure pursuant to Article 93(2) of the EC Treaty in connection with the tax treatment of the technolease arrangement because of the following doubts:
- for the assessment whether any burden was imposed on the State budget, information was needed on the depreciation period, the depreciation rate and the basis for depreciation of the know-how,
- the revaluation of the know-how from NLG 2200 million to NLG 2800 million lacked a solid basis,
- it was not clear whether taxable profits of Philips in those years would be enough for Philips to realise the full benefit of the depreciation of the know-how itself,
- more information on the tax rules governing sale-leaseback of immaterial assets was necessary to assess whether any discretionary power was used by the Netherlands tax authorities to the benefit of Philips and/or Rabobank.
III. OBSERVATIONS OF INTERESTED PARTIES
(11) Commission communication giving the other Member States and third parties notice to submit their observations was published in the Official Journal of the European Communities(1) on 8 November 1997. As part of the procedure, no other Member States or third parties submitted any observations to the Commission.
IV. COMMENTS OF THE NETHERLANDS
(12) The Netherlands authorities forwarded their observations to the Commission by letter of 28 October 1997. The general position of the Netherlands authorities was that there was no element of State aid in the treatment by the Netherlands tax authorities of the technolease agreement between Philips and Rabobank because it merely applied general tax rules instead of using discretionary power. In addition they addressed more specifically the questions put forward by the Commission. At a meeting between representatives of the Netherlands and the Commission that was held on 19 February 1998 in The Hague, the representatives of the Commission were enabled to examine confidential documents. As some information was still missing, the Commission requested additional information by letter dated 24 April 1998. In response, the Netherlands authorities provided all the needed information by letter dated 29 April 1998.
(13) In the observations they submitted, the Netherlands authorities explained that:
- neither civil nor tax law in the Netherlands contains special provisions for the assessment of sale-leaseback transactions. Nevertheless the interpretation of the law by the High Court in the Netherlands(2) as found in its jurisprudence makes it clear that sale-leaseback transactions are legally valid under existing law in the Netherlands,
- because no special provisions existed for the assessment by the tax authorities of sale-leaseback of immaterial assets, the technolease agreement between Philips and Rabobank had to be assessed on the basis of the principle of "sound business practice" that is laid down in the Netherlands tax law. According to the principle of sound business practice the owner of a fixed asset can yearly deduct a certain percentage of the value of the asset from taxable income. The central issue in case of sale-leaseback of immaterial assets is where the ownership actually lies, at the side of the lessor or at the side of the lessee. The assessment of the ownership of the know-how was made in accordance with civil and tax law as well as jurisprudence,
- the Netherlands tax authorities had approved already another case of sale-leaseback of immaterial assets (trade marks) in 1987 merely by interpreting general tax rules,
- the book value of the know-how before the transfer of Electrologica from Philips to Rabobank was based on cost-minus, leaving some cost elements out because of the principle of prudence that rules the concept of sound business practice in the Netherlands. The Netherlands tax law(3) prescribes the revaluation of assets from book value to market value at the moment a subsidiary leaves the tax group so any hidden reserves can be taxed. The market value of the know-how of Electrologica at the moment of the transfer to Rabobank was determined on the basis of the OECD-guidelines for transfer pricing(4),
- royalty and interest to the amount of NLG 140, respectively NLG 154 million, are fully paid between Philips and Rabobank for a period of 10 years, the length of the contract. However in 1994 and 1995 the royalty payments from Philips to Rabobank are settled with the cash payments from Rabobank to Philips, implying that Rabobank deducted the royalties that Philips owed them from the cash payment to Philips,
- the guidelines for the assessment of sale-leaseback of immaterial assets published in the Directive of 22 August 1994 by the Netherlands tax authorities merely give an interpretation of the general tax law and cannot change the Netherlands tax law. Furthermore it is argued that a posteriori application of the Directive to the technolease agreement between Philips and Rabobank would not have altered the outcome.
(14) These arguments were developed in the subsequent correspondence and at the meeting held with the Commission. Furthermore, the Netherlands authorities provided:
- detailed information on the depreciation scheme applying to Philips and Rabobank,
- figures on the taxable income of Philips as well as Rabobank in 1990, 1991, 1992 and 1993,
- the contracts underlying the technolease agreement between Philips, Rabobank and Electrologica.
V. APPRAISAL
V.1. V.1. Technical appraisal of the operation
(15) The Commission takes into consideration that the sale-leaseback of assets is widely used as a financing scheme in the Member States of the European Community as well as abroad. One consequence of sale-leaseback of assets is that the lessor that acquired the ownership of the asset obtains the exclusive right to depreciate on the acquired asset for tax purposes. The examination of tax legislation in Member States leads to the conclusion that this holds in the vast majority of the Member States.
(16) The Commission supports the notion made by the Netherlands authorities that the exploitation of immaterial assets does not in principle differ from the exploitation of other assets. However, because of the special properties of immaterial assets special conditions may apply to the exploitation of immaterial assets(5). In this respect the publication of the Netherlands tax authorities' Directive with guidelines on sale-leaseback of immaterial assets cannot be considered at odds with applying general tax rules.
(17) By the transfer of the shares in Electrologica from Philips to Rabobank, Electrologica is no longer part of the tax group of Philips. This means that the taxable income of Electrologica is no longer consolidated with the taxable income of Philips. After the transfer, Electrologica forms part of the tax group of Rabobank so that the taxable income of Electrologica will, from then on, be consolidated with the taxable income of Rabobank. Furthermore, the technolease agreement has the following implications. First, the exclusive right to depreciate on the know-how (as deductible tax allowance) is shifted from Philips to Rabobank. Hence, the technolease agreement decreases taxable income of Rabobank and increases taxable income of Philips, allowing Rabobank to pay less tax than it would have without the technolease agreement while Philips at the same time pays more tax. Second, due to the technolease agreement, Philips makes a (taxable) book profit of NLG 600 million that it would not have realised without the sale of its subsidiary Electrologica to Rabobank.
(18) The Dutch tax authorities provided all the information that enabled the Commission to certify that neither Philips nor Rabobank had unsettled fiscal losses at the time of the technolease agreement. The figures on taxable income of Philips and Rabobank in 1990, 1991, 1992 and 1993 lead the Commission to the conclusion that Philips and Rabobank both were in the position to benefit fully from the depreciation of the know-how. Moreover the prospects on future profits were promising to Philips as well as to Rabobank. Every change in taxable income therefore results accordingly in a change in overall tax revenues for the State.
(19) In detail, the shift in taxable income for Philips and Rabobank, and thus in tax revenues for the State, is as follows (see also table below):
- without the sale of Electrologica to Rabobank, the tax group of Philips could have depreciated on the know-how linearly from 1994 in 4 years on the basis of the book value of NLG 2200 million. Missing the depreciation on the know-how increases the taxable income of Philips with NLG 550 million per year over four years at a tax rate of 35 %,
- after the sale of Electrologica to Rabobank, the fiscal depreciation on the know-how is based on a book value of NLG 2800 million and over six years consists of depreciation of 25 % of the remaining book value (reducing balance method) in each year, followed by linear depreciation over four years. The depreciation on the know-how decreases the taxable income of the tax group of Rabobank with NLG 700 million the first year (25 % of NLG 2800), NLG 525 million in the second year (25 % of NLG 2100) down till NLG 125 million in year 10, at a tax rate of 35 %(6),
- royalty and interest payments between Philips and Rabobank take place for a period of 10 years, the length of the contract. As far as the royalty payments from Philips to Rabobank have been settled out of the cash payments from Rabobank to Philips for the purchase of Electrologica, no actual transfer of money is made between Philips and Rabobank,
- Philips and Rabobank agreed that the loan of NLG 2200 million by Philips to Electrologica could be redeemed at the end of the contract. The debt conversion is tax neutral according to vast jurisprudence in the Netherlands(7)
- any revenues from sublicensing the know-how of Electrologica to third parties during the contract are divided equally between Philips and Rabobank and taxed accordingly. From the information received these revenues are expected in the second half of the duration of the contract (i.e. from 1999 on).
(20) The first column of the first table below shows the increase in taxable income of the tax group of Rabobank resulting from the royalty payments made by Philips to Electrologica. The second and third columns show the decrease in taxable income of the tax group of Rabobank resulting from interest payments made by Electrologica to Philips and the depreciation on the know-how of Electrologica. The fourth column shows the decrease in taxable income of the tax group of Philips resulting from the royalty payments by Philips to Rabobank. The following three columns show the increase in taxable income of the tax group of Philips respectively due to the interest received from Electrologica, missing the depreciation on the know-how and finally the book profit Philips made on the know-how by selling Electrologica to Rabobank. The last column of the first table sums the shifts in taxable income. The last row of the first table shows the present value of all shifts in taxable income in 1994. The second table shows the impact of the changes in taxable income on overall tax revenues, based on a tax rate of 35 %.
(21) As follows from the second table, the technolease agreement has the effect that overall tax revenues rise in the short term and fall in the long term. The shift over time in tax revenues can be attributed to two circumstances. First, because Electrologica leaves the Philips tax group in 1994 prior to the transfer to Rabobank, the previously hidden reserves on the know-how are realised and are subsequently taxed in that year. Second, because of the differences in depreciation schemes between Philips and Rabobank, depreciation on the know-how is to some extent decelerated.
Any future tax revenues from sublicensing the know-how to third parties will be left aside in the following overview. For the purpose of overall tax revenue it is irrelevant whether the revenues will be received by Philips (in case the know-how would not have been sold to Rabobank) or the revenues will be divided between Philips and Rabobank (as Philips and Rabobank agreed to under the terms of the technolease agreement).
Table 1
Shifts in taxable income due to technolease (1994 = year 1)
TABLE
Table 2
Shifts in tax revenues (effective tax rate 0,35) due to technolease (1994 = year)
TABLE
(22) Overall, the technolease agreement can be expected to benefit the State budget in the sense that tax revenues are accelerated rather than decelerated. The discounted value of this benefit in 1994 amounted to NLG 68 million at a discount rate of 1,06(8). The tax benefit to Rabobank should therefore be fully paid up for by Philips paying more taxes. The tax benefit to Rabobank can be considered to be part of the fee Philips is paying for the financial services supplied by the Rabobank.
(23) Any estimation made at the time by the Dutch administration, as mentioned in press articles, suggesting that the technolease agreement imposed a burden to the State resources appears to have overlooked the tax consequences of the technolease agreement at the side of Philips.
V.2. Application of Article 92(1) of the EC Treaty to the tax treatment of the operation
(24) The technolease agreement must be assessed on the basis of the criteria laid down in Article 92(1) of the EC Treaty. For any element of State aid to be present in the technolease agreement some advantage must be given at the expense of State resources. Furthermore, to be considered an aid, the advantage must be specific or selective in that it favours certain enterprises or certain productions. Finally it has to be established that competition and trade between the Member States are affected.
a) Effect on trade
(25) As stated in the opening of the procedure, Philips and Rabobank both operate outside the Netherlands on the Community market. So, if aid were available for these companies, it would place them in a better position to compete with their products and services in other Member States. It would also be more difficult for competitors from other Member States to compete against them in the Netherlands. Any aid given to Philips and/or Rabobank will therefore affect trade between Member States.
b) Possible selective character through the use of discretionary power
(26) The treatment of economic agents on a discretionary basis may mean that the individual application of a general tax measure takes on the features of a selective measure(9). With regard to the doubts whether the Netherlands tax administration has exercised any discretionary power to the benefit of Philips and/or Rabobank or whether it merely has applied general tax rules, the Commission has considered the following.
(27) In favour of the assumption that the tax administration exercised to some extent discretionary power to the benefit of Philips and/or Rabobank is the fact that the government intervened in the dossier. This intervention seems however to have been prompted by the pressure exercised by Philips to put an end to the conflict that took place inside the fiscal administration. This conflict was merely bearing on the interpretation of the general tax rules which was delaying an answer to the transaction submitted to it.
(28) As neither civil nor tax law in the Netherlands contain specific provisions for the assessment by tax authorities of sale-leaseback transactions, assessment had to be based on the general principle of "sound business practice" laid down in Dutch tax law. Applying this principle to the technolease agreement, the main question is whether Rabobank actually obtained the ownership of the know-how merely by the purchase of shares in Electrologica and was therefore justifiably benefiting from the depreciation on the know-how(10). To be regarded the economic owner of an asset it is necessary for the owner to bear some risk (positive or negative) with regard to the end value of the asset. Rabobank was entitled to the surplus value of the know-how over the book value at the end of the contract as well as to 50 % of the revenues from sublicensing the know-how to third parties. On the basis of the information available to it the Commission concludes that under Netherlands law and jurisprudence this would be considered sufficient for establishing risk and therefore ownership.
(29) Also the Directive on sale-leaseback of immaterial assets that the Netherlands tax authorities published in August 1994 concentrates on conditions regarding economic ownership. The Directive presents guidelines for the interpretation of Netherlands tax law and can not make any change to the law. Because the Directive was not published until after the technolease agreement between Rabobank and Philips, it can only be tested whether the technolease agreement satisfies a posteriori the conditions laid down in the Directive. Doing so does not invalidate the conclusion that general tax rules have been applied.
(30) According to the Directive sale-leaseback of immaterial assets depends on meeting overall sufficiently five conditions:
1. the original owner may not stipulate an exclusive right of use of the asset by which also the question who has the factual power to dispose of the immaterial asset at the end of the lease-period is relevant;
2. the duration of the lease must be shorter than the lifetime of the know-how;
3. the depreciation must be in relation with the lease payments and take into account a just end value;
4. the transfer price should be at arm's length and the tax administration should be able to test this;
5. the lease payments plus other benefits to the lessor should enable the lessor to make up for its costs including depreciation and interest.
(31) According to the Directive the conditions 1, 2 and 5 do not have to be fully met, as long as not meeting one of the conditions is compensated by meeting more other conditions. Overall the five conditions must be sufficiently met.
(32) Applying the conditions a posteriori to the technolease agreement between Philips and Rabobank yields the following results.
1. The lease-back to Philips is in principle exclusive. However, the agreement explicitly foresees the possibility that Philips capitalises the know-how by handing out licenses to third parties. With regard to the case that Philips hands out licenses to third parties, the agreement provides that Rabobank is entitled to 50 % percent of the revenues. There is a mutual interest for both Philips and Rabobank to engage in handing out licences. At the time Philips was going through a major reorganisation, going back to core business and closing down some of its production lines. For this reason Philips is actually a stakeholder in handing out licenses to third parties. From the information received it can be concluded that sublicensing of know-how to third parties is common practice to Philips.
Furthermore the Directive specifically provides that also the question who has the factual power to dispose of the immaterial asset at the end of the lease-period is relevant for deciding whether to qualify an agreement as "exclusive". It is clear that it is Rabobank who will have this power. As was noted above, Rabobank has only the right, but not the obligation, to sell the shares in Electrologica back to Philips at the end of the lease-period. Moreover, it can terminate the lease-back agreement between Electrologica and Philips as of 1 January 2004.
2. The duration of the lease is 10 years. The Commission has no reason to suspect that the expected lifetime of the know-how is less than the duration of the lease period.
3. The depreciation on the acquired asset in 10 years by Rabobank can be regarded as normal in the light of its function as long-term funding.
4. The transfer price of the know-how is based upon the OECD Transfer Pricing Guidelines, which are applicable to the transfer of the know-how. Furthermore the tax administration has tested and approved the transfer price of the know-how using the normal cost-minus method applied for that purpose in the Netherlands. The Commission considers the DECD Guidelines a useful basis for the valuation of the know-how.
5. Given a commercial net calculation, Rabobank can be considered to have made a commercially sound transaction. Beyond that, there is a possibility of extra revenues for both Rabobank and Philips from licensing to third parties as well as the revaluation of the know-how at the end of the lease contract.
(33) The Commission concludes that the technolease agreement between Philips and Rabobank a posteriori can be regarded as sufficiently meeting the conditions laid down in the Netherlands tax authorities Directive on sale-leaseback of immaterial assets.
(34) Besides the aforementioned conditions concentrating mainly on the ownership of the asset, the Directive demands that there is an economic rationale to the sale-leaseback of immaterial assets in order to prevent any (ab)use of sale-leaseback for the purpose of tax avoidance.
(35) The economic rationale for the technolease agreement is found in Philips' aim for an immediate improvement of its funding and its balance sheet figures and Rabobank's interest in a long-term funding operation. Crucial to the technolease agreement between Philips and Rabobank seems to have been the urgent need for cash flow at the side of Philips. Because the liquidity ratio of Philips was falling short at the time it was in danger of losing its AA-ranking as a debtor. The financial consortium behind Philips was no longer prepared to supply cash. Hence the liquidation of hidden reserves was some kind of last resort.
(36) The fact that in 1987 the tax authorities had already approved a sale-leaseback of immaterial assets by merely interpreting general tax rules gives further evidence in favour of the conclusion that the tax authorities merely have applied general tax rules.
(37) Another way to establish whether general tax rules have been applied is by checking whether other enterprises actually could engage in sale-leaseback of immaterial assets. The Netherlands authorities have supplied the names of enterprises that following Philips used sale-leaseback of immaterial assets in order to generate cash flow. These cases date from before as well as after the Philips/Rabobank agreement. Furthermore from press releases it can be concluded that other enterprises comparable to Philips also felt that sale-leaseback of immaterial assets was open to them.
(38) Furthermore, the economic rationale cannot be put in doubt by a possible fiscal gain over the sale-leaseback operation since, as shown in point V.l., it can be expected that there will not be any actual loss of tax revenues for the State. On the contrary, a tax benefit should result whose discounted value in 1994 amounts to NLG 68 million.
c) Use of State resources
(39) As has been pointed out, the tax treatment of the technolease agreement will not impose any burden on State resources.
VI. Conclusion
(40) In the light of the aforementioned considerations, the Commission concludes that, as the Netherlands authorities have not selectively granted a fiscal advantage to Philips nor Rabobank through any discretionary interpretation of their fiscal law nor at the expense of any State resources, there is no element of State aid falling under Article 92(1) to either party involved in the technolease agreement between Philips and Rabobank. The Commission therefore,
HAS ADOPTED THIS DECISION:
Article 1
The treatment by the Netherlands tax authorities of a technolease agreement between Philips and Rabobank does not constitute an aid within the meaning of Article 92(1) of the EC Treaty.
Article 2
This Decision is addressed to the Kingdom of the Netherlands.
Done at Brussels, 21 April 1999.
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COMMISSION DECISION
of 17 March 1999
on State aid given by Greece to Heracles General Cement Company
(notified under document number C(1999) 716)
(Only the Greek text is authentic)
(Text with EEA relevance)
(2000/199/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 93(2) thereof,
Having given notice to the Parties concerned to submit their comments in accordance with the same provisions(1) and having regard to those comments,
Whereas:
I
The Heracles Decision and its annulment
(1) On 6 July 1995, the Court of First Instance of the European Communities annulled(2) a Commission Decision, notified to the Greek authorities by letter of 1 August 1991(3), to authorise aid granted by the Greek Government to Heracles General Cement Company (hereinafter "Heracles"), a Greek cement manufacturer.
II
Background to the dispute
(2) In 1983, the Greek authorities adopted a number of structural measures designed to remedy serious disturbances in the country's economy, including Law 1386/83 for the organisation for the financial reconstitution of undertakings (hereinafter "Law 1386/83"), adopted on 5 August 1983. That law created an organisation known as the Business Reconstruction Organisation (Organismos oikonomikis Anasygrotiseos Epicheiriseon or OAE - the "BRO"). The purpose of the BRO was to "contribute to the social and economic development of the country through the financial rejuvenation of undertakings, the import and application of foreign technology, the development of Greek-based technology and the establishment and operation of socialised or mixed economy undertakings". The BRO was empowered in particular to administer and manage undertakings, participate in the capital of undertakings and grant loans. Law 1386/83 also authorised the capitalisation of the debts of the undertakings concerned by the issue of new shares.
(3) By Ministerial Decree of 7 August 1986, the Greek Government applied Law 1386/83 to Heracles, the balance sheet of which had shown a substantial deficit since 1983, by bringing it under public control and converting into capital its debts to Greek public institutions amounting to GRD 27755 million (approximately EUR 84 million).
(4) Law 1386/83 was not notified to the Commission by the Greek authorities prior to its adoption. Nor does the Commission appear to have received advance notification from the Greek Government that Law 1386/83 was going to be applied to Heracles in August 1986. However, following the granting of the aid, the matter was brought to the Commission's attention by competitors of Heracles. The Commission therefore requested the Greek Government, by telex of 18 September 1986, to provide clarification on the point within seven days and to notify it of any application of Law 1386/83 in that instance. In response to that request, the Greek Government provided detailed information by letter of 10 October 1986, pointing out in particular that, in its view, the conversion of Heracles' debts into shares did not constitute aid within the meaning of Article 92 of the Treaty.
(5) On 29 October 1986, the Commission initiated administrative proceedings in respect of Law 1386/83; these culminated in the adoption on 7 October 1987 of Commission Decision 88/167/EEC(4), which authorised "the implementation of the law" under Article 92(3)(b) of the Treaty, on the ground that it was intended to remedy a serious disturbance in the economy of a Member State.
(6) The implementation of Law 1386/83 was made subject, however, to a number of conditions, including the requirement that the Greek Government notify individual cases exceeding certain thresholds.
(7) In the recitals to the Decision, the Commission found that Law 1386/83 and the operations of the BRO fulfilled the conditions for the application of the second part of Article 92(3)(b), particularly in view of Protocol 7 to the Act of Accession of Greece, on the economic and industrial development of Greece. Protocol 7 provides that "in the application of Articles 82 and 93 of the EEC Treaty, it will be necessary to take into account the objectives of economic expansion and the raising of the standard of living of the population".
(8) The Greek Government was informed of Decision 88/167/EEC by letter from the Commission dated 17 November 1987. Thereafter, by letter dated 3 December 1987, the Greek authorities provided detailed additional information concerning Heracles, while repeating their view that the intervention in question did not constitute State aid.
(9) On 8 December 1987, Titan Cement Company ("Titan"), a Greek competitor of Heracles, lodged a complaint with the Commission opposing the granting of the aid to Heracles.
(10) By letter dated 15 February 1988, the Commission informed the Greek Government that it had decided to initiate administrative proceedings under Article 93(2) of the Treaty against the aid granted to Heracles. Noting that there had been an increase in Greek cement exports, particularly those of Heracles, to other Member States, the Commission found that the aid could distort competition and affect trade between Member States within the meaning of Article 92(1) of the Treaty, since Heracles had been making losses since 1983 whilst engaging in intra-Community trade. It pointed out that the only derogation applicable to the aid was that provided for by Article 92(3)(b) of the Treaty but that the application of that provision was subject to certain conditions which were not, in its view, met in the case of Heracles.
(11) On 9 March 1988, Titan sent to the Commission further comments on the aid granted to Heracles.
(12) Following its decision to open proceedings under Article 93(2) of the Treaty, the Commission published a notice(5) inviting parties concerned other than the Member States to submit their comments on the aid to Heracles within one month.
(13) In response to that notice, several of Heracles' competitors claimed that serious disturbance had been caused to the Community cement market as a result of the intervention by the Greek authorities, which had very greatly strengthened Heracles' competitive position. Thereafter, several meetings and exchanges of correspondence took place between, on the one hand, the Commission and the applicants and, on the other, the Commission and the Greek Government.
(14) The procedure was terminated by the Commission with the adoption of a Decision to approve the aid(6). In that Decision the Commission concluded that the aid awarded to Heracles in 1986, by transforming parts of its debt into capital, could be considered to be in conformity with Decision 88/167/EEC.
(15) In parallel with the procedure relating to Heracles, the Commission on 3 April 1989 initiated proceedings pursuant to Article 93(2) of the Treaty against aid granted on the basis of Law 1386/83 to Halkis, the third largest Greek cement producer. Those proceedings led to Commission Decision 91/144/EEC(7) ("the Halkis Decision"), in which the Commission found that the aid to Halkis had been granted in breach of the rules set out in Article 93(3) of the Treaty and was incompatible with the common market, since it did not qualify for exemption under Article 92(2) and (3) of the Treaty, having regard in particular to the increase in Halkis' exports to Italy. The Commission concluded that the aid was contrary to "the common interest".
III
The Parties challenging the aid before the Court
(16) By application lodged at the Court of Justice of the European Communities on 27 March 1992, the Associazione Italiana Tecnico Economica del Cemento ("AITEC"), an Italian cement producers' association, brought an action for the annulment of the Commission Decision approving the aid granted to Heracles, which had been notified on 1 August 1991(8).
(17) Similarly, by applications lodged at the Court of Justice on 30 March 1992, Titan and the British Cement Association ("BCA"), together with three of the BCA's member companies, Blue Circle Industries plc, Castle Cement Ltd and Rugby Group plc, which are the principal cement manufacturers in the United Kingdom, brought actions for the annulment of the same Decision ("the contested decision").
(18) The three cases before the Court of Justice, which were numbered C-97/92, C-105/92 and C-106/92, were joined for purposes of the proceedings.
(19) By orders of the President of the Court of Justice of 12 October 1992 and 24 March 1993 respectively, the Hellenic Republic and, subsequently, Heracles were given leave to intervene in support of the form of order sought by the defendant in the three cases, pursuant to applications lodged by them at the Registry of the Court of Justice on 14 August and 10 August 1992 respectively. They lodged their statements in intervention, which were common to the three Joined Cases, on 7 December 1992 and 3 July 1993 respectively.
(20) On 27 September 1993, the Court of Justice referred the proceedings to the Court of First Instance.
IV
The main findings of the Court of First Instance
(21) As to the substance of the case, the Court of First Instance ("the Court") found that all of the applicants maintained, in essence, that, when assessing the compatibility of the aid at issue with the Treaty, the Commission could not simply examine whether it fulfilled the conditions laid down by Decision 88/167/EEC, which declared that the aid scheme established by Law 1386/83, on the basis of which the contested aid was granted, was compatible with the Treaty. According to the applicants, the Commission should have carried out a specific examination of the compatibility of the aid at issue with the common market. It was appropriate, therefore, for the Court to determine first of all the scope of Decision 88/167/EEC and then to verify whether or not the contested decision disregarded Decision 88/167/EEC and Article 92 of the Treaty.
(22) As regards the scope of Decision 88/167/EEC, the Court of First Instance found that the Commission had approved the implementation of Law 1386/83 on the ground that it fulfilled the conditions of the second part of Article 92(3)(b) of the Treaty, read in conjunction with Protocol 7, since it was intended to remedy a serious disturbance in the Greek economy. However, the Commission authorised the implementation of the law subject to the condition that the Greek Government shall notify the individual cases of intervention in firms made subject to the law employing 300 or more persons in the case of non-sensitive branches and 100 or more persons in the case of sensitive branches.
(23) In the Court's view it followed that the Commission considered that interventions by the BRO on a certain scale should be subjected to a specific examination, first, of whether the aid fulfilled the "conditions" imposed by Decision 88/167/EEC and, second, of whether or not it resulted in the undertakings concerned "being left in a stronger competitive position vis-à-vis industries in other Member States than would otherwise occur had those difficulties not arisen in the first place". The Court concluded that the need for such an examination was in line with Article 92 of the Treaty, whose purpose was to prevent aid granted by Member States from distorting competition or affecting intra-Community trade.
(24) As to the contested decision, the Court of First Instance noted that the Commission pointed out therein that the obligation to notify individual significant cases had been imposed "so that these could be considered from the point of view of their impact on intra-Community trade and competition". However, in the contested decision, the Commission merely considered the consequences of the aid in Greece, and concluded that the aid fulfilled the conditions of Decision 88/167/EEC, particularly as regards the absence of any increase in production capacity and the viability of the undertaking. Whilst it was indeed necessary for those factors to be taken into consideration for the purposes of examining the compatibility of the aid with the common market, they were not enough for any conclusion to be reached in that regard, since Decision 88/167/EEC also required the Commission to examine the extent to which competition might be distorted or intra-Community trade might be affected. The Commission had undertaken no such examination in any way.
(25) The Commission had therefore disregarded the scope of its obligation under Decision 88/167/EEC and Article 92 of the Treaty to examine whether the aid in question distorted competition and affected intra-Community trade.
V
The enlargement of the Article 93(2) proceedings
(26) In its judgment the Court of First Instance annulled the Commission's decision to close the Article 93(2) proceedings initiated in 1988; this means that those proceedings are still open, and a new final decision is called for.
(27) In order to comply with the judgment, therefore, the Commission decided on 14 November 1995 to enlarge the Article 93(2) proceedings. The Commission observed that it had originally initiated proceedings only on the ground that the aid to Heracles might be incompatible with Decision 88/167/EEC; the proceedings needed to be broadened, so that the Commission could carry out a full investigation of the compatibility of the aid with Article 92, as the Court had required, without infringing the rights of defence of the Greek Government. The recapitalisation of Heracles constituted aid caught by Article 92(1) of the EC Treaty. There was at least serious doubt whether the aid could be considered compatible with the common market. The Commission also raised the question whether or not the aid was restricted to the minimum necessary to enable Heracles to regain its profitability. The Commission had now compared Heracles with its slightly smaller but profitable competitor Titan, and concluded that Heracles appeared to have been overcapitalised by some GRD 5000 million (approximately EUR 15,5 million).
(28) The Commission informed the Greek authorities of its decision to enlarge the Article 93(2) proceedings by letter dated 29 November 1995. The Greek authorities replied by letter dated 13 February 1996; a summary of their arguments is given below.
(29) The Commission announced its decision to enlarge the proceedings in a notice published in the Official Journal of the European Communities(9). The notice invited other Member States and other Parties concerned to submit comments. In response to that notice information was submitted by three national cement associations, by one of Heracles' competitors, and by some other interested parties. Those comments are summarised in Section VI.
(30) The observations received from interested parties were submitted to the Greek Government for its comments by letter dated 17 June 1996. In letters dated 23 July and 12 September 1996 the Greek authorities requested extensions of the deadline within which they were to comment, and ultimately submitted their comments by letter dated 8 November 1996. Heracles submitted additional information by letters dated 12 December and 23 December 1996. Further to those answers, the Commission, by letter dated 16 January 1997, asked the Greek Government to provide additional information. That information was submitted on 6 February 1997.
(31) A series of meetings between the Commission departments and interested parties took place in summer and autumn 1997: Commission staff met the Agrupación de Fabricantes de Cemento de España ("Oficemen") on 29 July; AITEC on 30 July; the old shareholders in Heracles on 31 July; Lafarge Coppée SA ("Lafarge") on 31 July; representatives of the British cement industry on 1 August; and Titan on 17 September. A joint meeting with Heracles and the Greek Government took place on 19 September.
(32) On 12 August 1997, the Commission asked the Greek authorities for further information. The Greek authorities replied by letter of 17 November. Heracles' competitor Titan submitted further information to the Commission by letter of 2 December. Heracles addressed a memorandum to the Commission by letter of 23 January 1998. The Greek authorities sent additional information by letter of 10 February. In addition to its memorandum of 23 January, Heracles submitted further information in a letter of 6 April.
(33) A meeting with the Greek authorities took place on 5 October 1998. Additional information was sent by Heracles on 24 November and 29 December. Another meeting with Heracles' representatives took place, at their request, on 12 January 1999. The Greek authorities sent final submissions to the Commission on 8 February 1999, summarising the discussion to date and the information already supplied.
VI
Observations received in the course of the Article 93(2) proceedings
VI.1. Observations submitted by the Greek Government and Heracles
(34) Following the Commission's initial decision to open proceedings, in 1988, the Greek Government submitted its first observations by letter dated 27 April 1988. A bilateral meeting with representatives of the Greek Government and of Heracles took place on 29 June. Further to this meeting, the Commission requested additional information by letter dated 18 July, the reply to which was received on 26 October. An additional meeting took place on 30 May 1989, further to which the Greek Government submitted supplementary information by letter dated 18 July 1989. Another meeting was held on 13 December 1989, followed by a letter from the Greek Government dated 6 March 1990. Further meetings took place on 19 October 1990, 16 November 1990 and on 11 January 1991. The Greek Government submitted written information on 3 March 1991.
(35) In 1988, the Greek Government rejected the point of view taken by the Commission in its entirety: it contended that the BRO's intervention had been limited to the absolute minimum necessary for the company to survive; it defended the necessity of maintaining fixed low domestic cement prices; it denied that Heracles' productive capacities had been or would be increased; it claimed that the additional regional aid had been awarded in 1985 but not yet paid, and that without this aid the conversion of debt into capital would have been GRD 3 billion higher; and it submitted information on Heracles' investments in order to show that a real restructuring had taken place.
(36) In 1989, the Greek Government announced that some of the Commission's objections would be met. The fixed domestic cement price had been abolished, and Heracles' investment programme for 1987 to 1990 would be boosted, thus accelerating its restructuring. Finally, the Greek Government had decided not to award the additional regional investment aid.
(37) In 1990 and 1991, the discussion focused on the remaining problem, namely the amount of aid, and on the Greek Government's newly announced intention to privatise Heracles.
(38) Throughout the proceedings, both before the judgment of the Court of First Instance and during the formal investigation initiated by the Commission in 1988 and subsequently enlarged in 1995, the Greek Government has maintained that the conversion in 1986 of a part of Heracles' debts into shares held by the BRO, that is to say by the Government, did not constitute State aid within the meaning of Article 92(1). The Greek authorities have criticised the Commission for failing to ascertain, when it approved that intervention by the Greek State in August 1991, whether the intervention could in fact be considered State aid under Article 92(1), rather than simply taking the view that anything done under Law 1386/83, which was the legal basis of the measure in question and which the Commission had approved under Article 92(3)(b) in October 1987, would necessarily constitute State aid.
(39) More specifically, the Greek Government contends that the private investor test is satisfied, as the GRD 20775 million invested by the Greek Government in Heracles gave a return of GRD 120790 million six years later when the company was privatised in 1992. The Greek Government further contends that the aid is not caught by Article 92(1), owing to the lack of trade between Member States. It points out that the comparison between Heracles and Titan also shows that the aid had no adverse effect on the position of Heracles' main competitor, and that the aid was the minimum required for Heracles to remain viable, since Titan's sales did not drop either at home or abroad, nor was there any adverse effect on its turnover. Titan's pre-tax profits increased after the debt-to-share conversion, outstripping Heracles' profits.
(40) Heracles itself stresses that it fully supports the observations put forward by the Greek Government. Heracles contends that the capitalisation of its debts does not constitute aid, but that even if it did it ought to be approved in its entirety. Heracles argues that the Commission approved the aid to the company in 1991 on the basis of specific information and considerations that still apply today. If the Commission were now to come to a different conclusion on the basis of the same facts, it would violate the principle of legal certainty and the principle of sound administration. Moreover, given the time that has elapsed, the Commission has failed to take a decision within a reasonable time, and is clearly rendered responsible. Heracles also maintains that it cannot be possible, in view of the principle of sound administration which Community institutions must observe in the exercise of their authority, for their proven errors to have an adverse effect on a private individual acting in good faith and to damage or undermine his interests.
VI.2. Observations submitted by interested parties
(a) Reactions to the Commission notice published on 11 May 1988(10)
(41) Following its initial decision to initiate proceedings in 1988 in respect of aid to Heracles, the Commission received observations from the Governments of three other Member States, seven national associations, four competitors of Heracles, and the old shareholders in Heracles, all of them in support of the Commission's own position.
(42) The Belgian, Dutch, French and German associations of cement manufacturers emphasised that their members had undergone heavy restructuring programmes, which included cuts in production capacity and substantial investment, without receiving any special aid. The Belgian association added that its members were facing serious disruption of the market which was partly the result of cheap imports of Greek cement. The Dutch association feared that the overcapacity created and maintained in Greece by means of State aid would force the Greek cement industry, and notably Heracles, to sell large volumes of cement in other countries, even at very low prices. The German association added that Greek cement, and Heracles cement in particular, was being offered in several western European countries, including Germany, at prices below comparable production cost.
(43) The Luxembourg association of construction materials manufacturers and traders pointed out that cement produced by Heracles had found its way to Luxembourg via the Netherlands at prices one third lower than those charged by the cement industry in Luxembourg.
(44) The Italian association of cement manufacturers protested against the increasing imports of cheap Greek cement in Italy, more than half of which came from Heracles. Both the Italian association and an Irish producer stressed that the Greek cement industry had had the benefit of various general aid schemes, notably export aid. Any further operating aid, such as a conversion of debt into capital, would be incapable of satisfying the tests of Article 92(3).
(45) The British Government objected in particular to rescue aid not linked to a sound restructuring plan.
(46) Two Greek competitors of Heracles stressed that the best way to help the Greek cement industry as a whole would be the abolition of price control for cement in Greece.
(47) The Governments of Denmark and Germany, an association in the United Kingdom and a manufacturer in Denmark protested against the aid in more general terms.
(48) The Commission submitted these observations to the Greek Government by letter dated 18 September 1989; the Government commented by letter dated 6 March 1990.
(49) The old owners of Heracles submitted confidential information in November 1990. This information could not be submitted to the Greek Government, and must therefore be disregarded.
(b) Reactions to the Commission notice published on 21 March 1996(11)
(50) The reactions of interested parties to the Commission's notice announcing the enlargement of the proceedings against the aid granted to Heracles are summarised below. They include submissions from a competitor of Heracles, from three national cement associations and from the old shareholders in Heracles. Following the enlargement of the proceedings lawyers representing a French cement manufacturer several times submitted observations on the aid.
(51) In general these interested parties argue that the aid unlawfully granted to Heracles is incompatible with the common market and should be recovered with accrued interest. They submit that the aid to Heracles cannot be authorised under Article 92(3)(b), because it does not remedy a serious disturbance in the Greek economy. They contend that the Commission has not shown how the aid might have remedied such a disturbance, nor what the effect on the economy might have been if the aid had not been granted.
Titan
(52) Titan argues that the aid accorded to Heracles, its principal business rival in the common market, has caused it serious injury. Titan is of the view that the Commission should have calculated the minimum level of debt capitalisation which would have ensured Heracles' survival by estimating the level of aid that was sufficient to reduce the financial costs of Heracles' indebtedness to a level where they could have been met out of cash flow.
(53) Titan regards the approach taken by the Commission, which compared Heracles' financial position with that of Titan, as flawed in several respects. First, it did not take account of the viability test: Heracles would have been perfectly viable even if its financial position remained weaker than that of Titan, the industry leader. That Heracles should have had to carry higher financial costs was perfectly natural, since it had invested much more heavily and recently than Titan. Second, Titan questions the validity of the data used by the Commission in making such comparisons, particularly in respect of the year 1987.
The British cement industry
(54) The British cement industry(12) states that the aid enabled Heracles to export to the United Kingdom in volumes that would not have been possible otherwise: the volume of cement exported by Heracles to the United Kingdom increased from 12500 tonnes in 1986 to 388000 tonnes in 1988, and was over 400000 tonnes a year in the period 1989 to 1995. The aid permitted Heracles to produce cement at low unit cost, without the burden of the financing costs associated with the setting-up of the plant, which had been built and modernised using the aid. The effect on Heracles' profitability enabled it to sustain a substantial flow of unprofitable exports to the United Kingdom.
(55) The British cement industry submits that had no aid been given, Heracles would not have ceased to trade altogether, but would merely have been forced to take appropriated restructuring measures more promptly; these would very likely have included a further rationalisation of its production capacity to match demand. In its notice, the Commission does not indicate how such a restructuring would necessarily have led to any serious disturbance in the Greek economy.
(56) The State-imposed price controls that operated on the domestic market prevented manufacturers from obtaining a commercial rate of return on cement sold at home, and contributed to the difficulties of the Greek cement industry in general. Had the Greek Government acted to remedy that situation in 1986, for example, rather than in 1989, it would certainly have relieved the problems of the Greek cement industry without requiring the award of State aid. And if Heracles had been liquidated sooner, rather than being allowed by the Greek Government to benefit as a result of unlawful aid, the industry would have been rationalised more rapidly.
(57) The British cement industry calls for the Commission to assess whether the aid granted to Heracles was necessary in order to remedy a serious disturbance in the Greek economy on the assumption that: (i) the Greek Government had not granted unlawful State aid to Halkis, permitting Halkis to be liquidated and thereby making possible the restructuring of the Greek cement industry, and (ii) the Greek Government had moved earlier to lift the domestic price controls.
(58) The British cement industry submits, however, that this comparison, based on 1987 figures, is unduly favourable to Heracles, and that a correct analysis shows that the excess capitalisation was even greater. The Parties also criticise the Commission on the ground that it contended itself with considering what capital injection was needed to maintain Heracles' business substantially in its existing form, and simply assumed that this was necessary in order to prevent a disruption of the Greek economy.
AITEC
(59) In its comments, AITEC refers to the distortions of competition caused by increasing levels of exports by Heracles to Italy from 1988 onwards: the volume of cement exported by Heracles to Italy grew from 34000 tonnes in 1987 to 885000 tonnes in 1991, an increase from 1 % to 32 %. AITEC claims that Heracles has attained its market penetration in Italy by charging abnormally low prices and pursuing an aggressive pricing policy. It quotes figures which indicate that prices for Greek cement are on average 22,5 % lower than those in Italy, and up to 30 % lower than prices on the Greek market.
(60) AITEC argues that the aid granted to Heracles gave it an advantageous position vis-à-vis its competitors in Italy and enabled it to secure a substantial share of the Italian market. The fact that there was no restructuring linked to the conversion of the debts of Heracles in 1986 meant that the company's production capacity, as it stood in 1985, remained unaltered. But its annual output increased, despite the fact that the number of its employees diminished considerably over the period from 1988 to 1994, from 3600 to 3000. It should also be noted that during that same period, 1988 to 1994, the ratio of investment to the company's turnover increased from 2 % to about 4 %. This AITEC considers to have been made possible by the aid that Heracles received. Heracles' exports to Italy have led, the association claims, to the loss of a total of 350 to 400 jobs in Italy.
Oficemen
(61) Oficemen notes in its letter that it is characteristic of the Greek cement industry that most of its output is exported. Out of the total volume of Greek cement exported in the years 1989 to 1995, the share of exports to Spain increased from 1 % to 12 %, or in absolute terms from 62000 tonnes to 929000. The volume of exports by Heracles to Spain increased from 29000 tonnes in 1989 to 370000 tonnes in 1994; the latter figure amounts to approximately 50 % of Greek exports to Spain in that year. Oficemen maintains that so great an increase in Heracles' share of exports within five years was due to the aid it received from the Greek State, which allowed it to sell below production costs. Spanish cement manufacturers found themselves in a disadvantageous position vis-à-vis Heracles.
Old shareholders in Heracles
(62) The old shareholders in Heracles regard themselves as interested parties because the enforced increase in the company's had the effect of diluting the control of the original shareholders. They also observe that it is not surprising that Heracles became overcapitalised, since the capital increase was a disguised manoeuvre aimed at taking control of the company, and was not motivated by purely financial considerations. The old shareholders argue that the aid was granted by an unlawful mechanism: it was not notified in advance, and it infringed Council Directive 77/91/EEC(13), as last amended by the Act of accession of Austria, Finland and Sweden ("the Second Company Law Directive"). An aid measure cannot be found compatible under Article 92(3) when the mechanism by which the aid is granted itself infringes a provision of Community law other than those laid down in Articles 92, 93 and 94 of the Treaty, in this case the Second Company Law Directive. Even if it were to be found compatible, the aid should not be authorised, since it was granted by unlawful means. In accordance with the case-law of the Court of Justice, the old shareholders should recover their original position of control.
Lafarge
(63) Lafarge, a French cement manufacturer, criticises the Commission decision to enlarge the proceedings for failing to take account of the fact that the aid might enable Heracles to take over a loss-making cement producer, Halkis, and subsequently to increase its capacity even further. Heracles is controlled by Concretum SA, through Cal-Nat SA, and Lafarge here refers indirectly to the fact that Heracles has purchased from its parent Concretum at least 50 % of Concretum's holding in Halkis. Concretum is the controlling shareholder in Halkis, and owns 70 % of Halkis' shares. Lafarge contends that even if this does not formally constitute a takeover of Halkis by Heracles, the result in economic terms is the same, namely a reinforcement of the production capacity of two manufacturers who have taken advantage of state aid. Lafarge argues that the proceedings have not been broadened sufficiently, and do not cover the question of the economic unification of Heracles and Halkis.
VII
Application of Article 92 of the EC Treaty
VII.1. Application of Article 92(1) of the Treaty
(64) For the reasons set out below, the Commission considers that the aid granted to Heracles in 1986 is caught by Article 92(1) of the Treaty, and more specifically that is was granted through State resources to a specific undertaking and threatened to distort competition and to affect trade between Member States.
(65) Decision 88/167/EEC concerning Law 1386/83 determined that the interventions of the BRO constituted State aid. Heracles had been loss-making since 1983, and by the end of 1985 had accumulated losses of GRD 7249 million, which was equal to approximately three times its share capital at the time; by Ministerial Decree of 7 August 1986 it was made subject to Law 1386/83, and its debts were converted into capital. Heracles owed GRD 27755 million to public institutions, and capitalising this gave it a share capital 10 times greater than before, 93 % of it owned by the Government.
(66) As the Commission observed when it decided on 15 November 1995 to enlarge the Article 93(2) proceedings, the aid granted to Heracles distorts competition and affects trade between Member States within the meaning of Article 92(1).
VII.2. Distortion of competition and effect on trade between Member States
(a) The European cement market(14)
(67) Cement is a tradable goods, although its low price-to-weight ratio makes it competitive only at short distances from its production site when transported overland. Consequently, practically all international trade in cement is either cross-border over a small radius, or seaborne in large vessels at much larger distances.
(68) The rate of activity in the cement industry is related to the rate of activity in the construction industry, which is directly dependent on the economic situation. Cement is an important basic material in construction and civil engineering, which account for substantial public and private investment.
(69) Cement production consists of two essential phases:
- the manufacture of a semi-finished product, known as "clinker", which is obtained from the calcination in a high-temperature kiln of raw materials - clay, limestone, etc. - previously prepared in paste or powder form depending on the production process used (wet or dry),
- the manufacture of cement as a finished product, obtained by the homogeneous mixture of ground clinker and calcium sulphate with or without one or more additional components - slag, fly ash, pozzolana, filler, etc. - depending on the type of cement.
(70) Cement production requires large quantities of energy. Significant advances have been made in recent decades in reducing the energy required to produce a tonne of cement.
(71) There are no generally accepted criteria for ranking cement companies or groups, as both turnover and capacity can be defined in different ways. Published turnover in consolidated accounts may include non-cement activities, and the existence of trading affiliates can lead to different quantities of cement being produced and distributed by the same company. Capacity in part-owned companies can be calculated differently. Subject to these reservations, the largest companies in the world having cement interests in the Community are considered to be, in alphabetical order: Blue Circle, United Kingdom; Cemex, Mexico; Dyckerhoff, Heidelberger, Germany; Holderbank, Switzerland; Italcementi, Italy; Lafarge, France and Scancem AB, Sweden.
(72) As a result of the decline in building in Europe as a whole during the period from 1979 to 1985, total Community consumption fell from 164 million tonnes in 1979 to 134 million in 1985. But during the second half of the 1980s there was an increase in demand for cement across the Member States as a result of the spreading use of concrete in road construction and of reinforced concrete in railway networks, the renovation of ageing infrastructures, etc. Imports accounted for a relatively small proportion of consumption in the Community as a whole: 3,9 % in 1979, and 4,6 % in 1986. Total Community imports were stable between 1979 and 1986, at 6,4 million tonnes. Total output in Europe decreased from 185 million tonnes in 1979 to 153 million tonnes in 1986, reflecting a slowdown in consumption and building. The proportion of Community output which was exported was 13 % in 1986, equivalent to 19,1 million tonnes.
(73) Consumption of cement decreased over the period from 1979 to 1986, in Greece and in the Community as a whole. But the negative trend was much steeper in the case of the whole Community than it was in the case of Greece. The proportion of the total Community market accounted for by Greek output rose from 6,5 % in 1979 to 8,6 % in 1986. This was due to the combined effect of an increase in Greek output and a decrease in Community output.
(74) In the second half of the 1970s and at the beginning of the 1980s, Greek cement producers increased their production capacities by some seven million tonnes, to meet strong demand from markets in the middle East, which at that time were in full expansion owing to higher prices being paid for oil products. Greece had traditionally exported cement to countries in the Middle East and North Africa, and until 1986 it exported hardly anything to other Member States. In the mid-1980s, however, falling oil prices led to the collapse of the middle eastern markets; this, combined with the expansion of local cement firms, created huge overcapacity in the Greek cement industry, and prompted a search for new markets for domestic output, which considerably outstripped domestic consumption. Since then Greek exporters have been diverting an increasing portion of their production to other Member States. Whereas in 1987 Greece exported six million tonnes of cement to third countries and only 0,5 million to other Member States, exports to other Member States had grown to 2,6 million tonnes in 1990 and 2,8 million tonnes in 1992.
(75) At the end of 1985 and the beginning of 1986, Greek producers looked towards western Europe, especially to those markets it regarded as more easily accessible: first the United Kingdom, because it had the highest cement prices in Europe, and second Italy, where small associations formed by consumers and import/export companies had taken the step of importing Greek cement.
(b) The structure of the cement industry in Greece(15)
(76) The manufacture of cement is one of Greek industry's most traditional sectors. The two largest companies, Heracles and Titan, account between them for 80 % of the Greek cement market (approximately 40 % each). The third-largest company, Halkis, has a market share of 13 to 14 %, and the fourth, Halyps, has 6 to 7 %. The market shares of the four cement manufacturers differ considerably from region to region in Greece. Each company has a larger market share in the areas closest to its own plants and distribution centres.
(77) The domestic cement market is an oligopolistic market. Of the four manufacturers, only one, Titan, is a purely Greek company. The other three are controlled by foreign multinationals, two of them, Heracles and Halkis, by the same Italian company. In reality, therefore, two companies, Heracles/Halkis and Titan, account for 93 % of the domestic market. The market is thus a highly concentrated one. At present there is no external competition in the domestic market, because imports are negligible and it is difficult for foreign companies to establish themselves in Greece because of the restrictions on access (strict environmental regulations, permits for operation as in all European countries, high transport costs, the strong position and comparative advantages of the Greek companies, etc.).
(78) The following table shows the market shares in Greece of the four Greek cement manufacturers Titan, Heracles, Halkis and Halyps from the mid-1980s onwards.
Domestic market shares of Greek cement manufacturers, 1985 to 1994
TABLE
(79) As regards the profitability and financial indicators of the Greek cement industry during the mid-1980s, it may be noted that gross operating profits per tonne of output increased overall during the period from 1979 to 1985, as a result of gains in operating cost efficiency in the industry, although export prices decreased and prices in the domestic market were at comparatively low levels. An analysis of profits before and after financial charges indicates the adverse effect of financial charges on the industry's profitability. High financial charges were incurred in order to finance the modernisation of the industry. The charges grew further because most of the long-term debt incurred in connection with modernisation was in foreign currencies, so that at each devaluation of the drachma there was a corresponding relative increase in interest payments and in the outstanding debt, directly affecting the financial structure of the companies; the drachma was devalued by a factor of 3,2 against the US dollar between 1979 and 1985.
Consolidated profits of the Greek cement industry
TABLE
(80) Turning to financial indicators, it is worth noting that the heavy impact of accumulated losses on the financial structure of the two companies in 1985 completely eroded the book value of their net worth, which meant that the net worth of the whole industry was negative. The table below shows that:
- the gearing of the industry deteriorated from 1982 onwards, and by 1985 long and short-term liabilities exceeded total assets, which meant that the total assets of the industry as a whole were financed by long and short-term debt,
- liquidity, which was satisfactory until 1982, also deteriorated thereafter, reflecting acute problems of cash flow for the industry as a whole,
- profitability, in terms of netprofit, deteriorated throughout the period.
Financial indicators for the Greek cement industry
TABLE
The respective profile of each Greek producer in the year 1985 is shown in the table below:
TABLE
(81) One factor that was crucial to the development of the cement industry in Greece around that time was that selling prices on the domestic market were low in comparison to prices in other domestic markets in the Community. This was in part due to the fact that cement prices in Greece were set by the State. Greek export prices declined sharply after 1983, a development which adversely affected similar companies elsewhere in the Community too. As recalled above, a high proportion of long-term loans, which had been used to finance investments in the early 1980s, were in foreign currencies. This caused difficulties for the industry because of the weakness of the drachma in comparison to foreign currencies. Manufacturers had to face high financial charges, the impact of which led to heavy losses for the industry as a whole in 1983 to 1985.
(82) Lastly, energy prices were an important factor, in view of the cost structure of the cement industry. Energy prices, and specifically the prices of coal, oil and electricity, had a particular significance for the Greek cement industry: they accounted for 53 % of total costs, whereas the European average in 1984 was some 39 %. But coal, the main fuel for the industry in both Greece and the Community as a whole, was considerably less costly in Greece from 1984 onwards.
(c) Development of Heracles' export pattern
(83) The Greek cement industry has traditionally been a considerable exporter. Greek exports grew strongly during the period from 1979 to 1986, from 4,9 million tonnes in 1979 to 7,6 million tonnes in 1985. The proportion of Greek cement output which was exported was 55,9 % in 1985, 43,6 % in 1990 and 51,7 % in 1995. The Greek cement industry has several advantages over its competitors which enable it to export effectively. First of all, given the characteristics of Greece's geography, production can be located closer to where the raw materials are mined and at the same time to places where the final product is loaded for transport by sea; the most economical method of transporting cement is by sea, especially over long distances. Most of the Greek companies have modern plants, and their production costs are lower too because their production units are larger. Finally, the largest Greek companies have cargo vessels of their own for the transport of cement.
(84) Heracles is the largest Greek exporter. Between 1983 and 1984, Heracles' exports fell by 6 %. In 1985, they grew by 3 %, an increase similar to that of all Greek cement companies. In 1986 and 1987 exports were maintained at the 1985 level. They fell by 18 % in 1988, when total Greek exports decreased by 11,3 %.
TABLE
(85) During the period from 1985 to 1987, Heracles managed to increase its share of exports to the other Member States from 14,8 % to 18,8 %.
(86) From the information presented above it can be concluded that the State aid granted to Heracles in 1986 resulted in the survival of the company and enabled it to export an increasing proportion of its output to other Member States. For these reasons Heracles' recapitalisation constitutes aid caught by Article 92(1) of the Treaty, since it distorted competition and affected trade between Member States.
(87) Thus the Commission does not accept the Greek Government's contention that the aid to Heracles was outside the scope of Article 92(1). Nor can the Commission accept the argument that there was no trade between Member States, so that not all the requirements of Article 92(1) were met: it was already foreseeable at the time that Greek exports would be directed towards other Member States, as the Court of First Instance found in its judgment.
(88) At the time, the Greek Government accepted risks which would have been prohibitive to other investors. The Greek Government has in any event failed to show that Heracles could have found the means necessary for its survival on the capital market. It has also failed to show that the State measure to assist Heracles did not constitute aid because on the basis of the structure and prospects of the company a reasonable return in the form of dividends or capital growth could be expected within a reasonable time.
(89) The Greek Government claims that the private investor principle was satisfied, but contradicts itself when it argues on the one hand that the financial problems faced by Heracles in 1986 were caused by short-term problems in the economy and on the other hand that Law 1386/83 and the operations of the BRO were a necessary response to the particular economic situation and developments in Greece.
(90) By failing to notify the aid prior to the recapitalisation, the Greek Government failed to comply with its obligations under Article 93(3) of the Treaty. Moreover, the Commission had in 1987 approved the implementation of Law 1386/83 subject to the condition that the Commission was to be notified of individual cases in which a firm was brought within the scope of the law if the firm employed 300 or more persons in the case of non-sensitive branches and 100 or more persons in the case of sensitive branches (see Decision 88/167/EEC). The aid was, therefore, granted unlawfully.
VIII
Assessment of the compatibility of the aid with the common market under Article 92
VIII.1. The exemptions in Article 92(2) and (3) of the Treaty
(91) The Commission is accordingly required to assess whether any of the clauses in Article 92(2) and (3) can be applied so as to exempt the aid from the general prohibition in Article 92(1).
(92) The exceptions laid down in Article 92(2) do not apply in this case, given the nature of the intervention, which did not pursue any of the objectives listed there.
(93) Greece may be regarded as meeting the definitions in Article 92(3)(a), which allows "aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment"; but the concept of regional development to which that exception is linked is based essentially on the provision of aid for new investment or major expansions or conversions of undertakings involving large-scale investments of a physical nature and the costs associated with these. The recapitalisation of Heracles cannot be considered to fall within the scope of that exemption.
(94) Article 92(3)(c) cannot apply to the aid granted to Heracles, which was not designed "to facilitate the development of certain economic activities or of certain economic areas". In other words, the aid had no regional objectives, nor was it linked to any restructuring of the company in question.
(95) Article 92(3)(d) cannot apply, because the aid was not intended "to promote culture and heritage conservation".
(96) The first part of Article 92(3)(b) makes provision for "aid to promote the execution of an important project of common European interest"; this cannot apply to the aid granted to Heracles, which was not intended to promote the execution of such a project.
(97) It was under the second part of Article 92(3)(b) that the Commission authorised Law 1386/83, on the ground that it was intended to remedy a serious disturbance in the Greek economy, and that law provided the legal basis for the granting of aid to Heracles, so that an individual award of aid of this kind may be permitted solely under that exemption.
VIII.2. Applicability of Article 92(3)(b)
(98) As stated above, Law 1386/83 forms the legal basis under which the aid was granted to Heracles. The implementation of the law was made subject, however, to a number of conditions, including the requirement that the Greek Government was to notify individual cases exceeding certain thresholds. This specific notification requirement was imposed in order to enable the Commission to consider significant individual cases from the point of view of their impact on trade between Member States and competition.
(99) The Commission wishes to emphasise that the Heracles case was not a one-off case but clearly a part of the whole programme pursued by the BRO. The economic situation in Greece had been constantly deteriorating up to October 1985. Both internal and external imbalances had created a difficult situation which demanded firm policy measures. In particular, the Greek authorities were confronted with very serious external payments and pressures on the exchange rate in September 1985. Thus, in October 1985, they introduced an economic stabilisation and recovery programme. This programme included measures to devalue the drachma by 15 %; the introduction of a non-interest-bearing import deposit scheme; the abolition of wage indexation; major changes to the tax system; and a tightening of credit and monetary policy. By the time the austerity programme was instituted many Greek companies had got into financial difficulties as a result of the previous policy on wages, limits on making workers redundant, price controls, interest rates and overvaluation of the drachma. When the Commission adopted Decision 88/167/EEC authorising the implementation of Law 1386/83, it observed that it had to be regarded as important that Greek companies maximise their economic performance if the objectives of the austerity programme were to be achieved. Given the major effort the Greek Government was undertaking to reverse past policies in the October 1985 stabilisation programme, the Commission concluded that Law 1386/83 and the operations of the BRO were an integral part of the programme and were compatible under Article 92(3)(b).
(100) On the question of the purpose of the aid, that is to say whether reorganising and recapitalising Heracles would help to remedy a serious disturbance within the Greek economy, it should be noted that Heracles was at the time, and still is, an enterprise important to the Greek economy. The Greek Government stressed this in its letter of 3 December 1987, pointing out that in the absence of an intervention on the part of the BRO, the existence of the largest cement group with a workforce of approximately 2000 directly employed in the second largest exporting industry of Greece would have been threatened. This would have had grave social and regional consequences, and repercussions on the Greek balance of payments.
(101) The Commission would point out that under the Treaty the aid must be limited to the minimum necessary to achieve the goal for which it was granted, in order to avoid undue distortion of competition.
(102) The Commission accepts, then, that aid to Heracles was necessary in order to achieve the objectives of the measures taken by the Greek authorities to remedy the serious disturbance in the Greek economy; but the Commission is of the opinion that the aid granted was not limited to the minimum necessary, because it went beyond the objective of remedying the serious disturbance in the Greek economy and thus distorted competition and affected trade between Member States to an extent contrary to the common market. The immediate result of the measures taken in respect of Heracles was a debt write-off, which brought substantial cost savings, since there was now no need to pay interest on the debts capitalised or default interest on liabilities overdue to the public institutions. The company's liquidity increased considerably, since its debts were capitalised and it no longer had to pay interest or capital to its creditors; this enabled it to improve the credit terms it offered to its customers on the domestic and export markets, and to export a greater proportion of its output to other Member States. The company was left in a stronger competitive position, by reason of an increase in its exports and a shift in the destination of its exports towards other Member States. Only that part of the aid which was necessary to restore Heracles' viability without affecting trade between Member States to an extent contrary to the common market, and which would not place the company in a more favourable position vis-à-vis its competitors, may be said to be compatible under Article 92(3)(b) of the Treaty. That part of the aid helped to remedy a serious disturbance in the Greek economy; it did affect trade, since the State intervention enabled the company to stay in business and to increase its exports to the other Member States, but not to an extent contrary to the common market. The increase in Heracles' exports to other Member States has to be seen in the light of a general shift of Greek exports towards other Member States which took place from 1986 onward. As has been pointed out above, the collapse of the middle eastern markets, which were the traditional export markets of Greece, caused the diversion to the Member States of an increasing proportion of the output of all Greek exporters, mainly because of the competitiveness of Greek exports as compared with European production, which was not sufficient during the period from 1986 to 1990 to meet the increase in internal consumption.
(103) In order to establish what part of the aid is not justifiable under Article 92(3)(b), because it went beyond the scope of remedying a serious disturbance in the Greek economy, and left the company in a financial situation which was better than necessary in order to ensure its long-term viability, the Commission has carried out an analysis of Heracles' economic development and financial situation and has examined the most appropriate methods for its calculation.
(a) Economic development and financial situation of Heracles
(104) Heracles had been loss-making since 1983. In 1985, it was in acute financial difficulty: in its annual report, it disclosed negative capital and reserves of GRD 2163 million, net losses of GRD 4216 million, and net losses on ordinary activities of GRD 4623 million. By the end of 1985, its accumulated losses amounted to GRD 7249 million.
(105) In 1985 and 1986, before State intervention, Heracles faced the following situation:
- it was equipped with modern production facilities, owing to a major investment programme carried out in the early 1980s (1983 was the last year in which capital expenditures were high),
- this investment programme had been financed very largely, if not exclusively, by additional foreign borrowing,
- the devaluation of the drachma had had a negative impact on the cost of this borrowing,
- sales revenue prospects were hit by domestic price controls,
- declining demand in the company's traditional export markets in the Middle East came hand-in-hand with the oil price shock of 1985/1986, which reduced the capacity of oil-exporting countries to finance major construction programmes.
(106) The economic and financial position of the company was thus characterised by sharply rising financial charges resulting from borrowing, which not only had a negative impact on its profitability but in fact threatened it with liquidation. On the other hand, it could look forward to a relatively substantial improvement in production efficiency, owing to the investment programme undergone in the early 1980s.
(107) By Ministerial Decree of 7 August 1986, the Greek Government converted into share capital GRD 27755 million in commercial debt owed by Heracles to various public institutions, in order to save the company from insolvency. This relieved Heracles of part of its debt and financial burdens, because it did not have to pay interest on this borrowing or to pay dividends to its shareholders. Heracles was rescued, and continued to export a proportion of its output to other Member States.
(108)
TABLE
(109)
TABLE
(110) As indicated by Heracles' annual reports, its financial situation before the debt-to-equity conversion was very precarious: the high financial outgoings due to high levels of outstanding debt had resulted in substantial losses which had eroded the company's capital. But during the most critical years for the company's activity, Heracles registered positive operating results, if financial costs are left out of consideration, and its poor financial results were closely linked to the extremely weak situation of the Greek economy as a whole.
(b) Alternative methods for calculating the part of the aid which was not restricted to the minimum necessary
(111) At the time it enlarged the Article 93(2) proceedings(16), and following the judgment of the Court of First Instance, the Commission seriously doubted whether the aid to Heracles could be considered compatible with the common market, as has been recalled above. In particular, the Commission doubted whether the exemption in Article 92(3)(b) could apply in Heracles' case. The Commission was of the opinion that the aid might well have left Heracles in a stronger competitive position than would have been necessary in order to ensure its viability.
(112) The Commission examined the financial costs of Titan and Heracles in relation to their turnover and volume sold, and concluded that Heracles was overcapitalised by approximately GRD 5 billion, so that the aid had not been limited to the minimum necessary.
(113) Following the enlargement of the Article 93(2) proceedings, the Commission received comments from numerous interested parties, including some concerning the method for calculating the minimum level of debt conversion needed to ensure Heracles' viability.
(114) On behalf of its members, the BCA commissioned a study of the economic aspects of the aid from Prof. George Yarrow, of Hertford College. In his first report, Prof. Yarrow estimated the degree of Heracles' overcapitalisation by analysing its cash flow as indicated in its accounts. At the Commission's request, the British cement industry asked Prof. Yarrow to provide additional observations, since the conclusions drawn in the first report were more of an ex post nature and could be used only as factual evidence.
(115) In his subsequent ex ante evaluation and calculations based upon comparison of financial structures, Prof. Yarrow assumed that Heracles' investment (relative to Titan) was financed in the same way as Titan's activities as a whole, i.e. by a similar mix of debt and equity and with similar payments and charges in respect of debt and equity. On such assumptions, the depreciation and asset figures indicated that Heracles' debt capacity would, other things being equal, have been about twice that of Titan in the mid-1980s. On this basis, the BCA arrived at the conclusion that the conversion of Heracles' debts in 1986 was excessive by about GRD 15,5 billion.
(116) In its complaint, Titan claimed that the amount of capitalisation was excessive and that a conversion of that magnitude was not only unnecessary but also disproportionate in relation to the company's size and needs. In Titan's view, the minimum level of debt capitalisation that would have ensured Heracles' viability would have been one which allowed it to continue to service its debt and still remain in production. Titan accordingly proceeded to analyse Heracles' expected cash flows after 1986, given that cash flows are what is used to pay debts.
(117) According to Titan's calculations, based on financial data extracted from Heracles' annual reports, Heracles generated enough cash in the years 1987 and onwards to sustain at least GRD 15 billion more in debt, or even GRD 20 billion if the capital repayments were weighted towards the later years.
(118) Heracles, in order to demonstrate that the debt-to-equity conversion in 1986 had not overcapitalised it, submitted to the Commission a report drawn up by Prof. Joseph Hassid, of Piraeus University, and Prof. Emmanuel Sakellis, of the Panteion University of Athens. Their calculations were made by comparing various capital structure ratios for Heracles with corresponding ratios extracted from four large samples of international cement producers(17). The samples comprised not only viable companies but also some facing difficulties.
(119) The starting point of the report was to determine the amount by which the net worth of Heracles would have had to be increased on 31 December 1985 in order to ensure the company's viability. For a company to qualify as viable, its long-term capital had to exceed the value of its fixed assets. Otherwise it would have to finance part of its fixed assets through short-term borrowing, something which would leave it in an unhealthy condition, since its working capital, which included stocks that were not readily liquid, would not be sufficient to cover such short-term liabilities.
(120) To determine the amount that needed to be converted from short-term liability to equity, financial information was taken from the balance sheets of the four samples, in order to estimate individual and group average financial indicators, and to use the geometric average of the four sample averages as an appropriate critical value towards which Heracles' financial structure should aim to converge. For the samples the following ratios were calculated: (i) net worth plus long-term liabilities divided by fixed assets; (ii) fixed assets divided by net worth; and (iii) the Z-score, a ratio for the evaluation of the probability of bankruptcy.
(121) Applying the first ratio, the amount by which the long-term capital of Heracles should have increased was estimated at GRD 27,5 billion. That amount would have had to be converted from short-term liabilities into either long-term loans or equity in order to achieve the same ratio as the four samples. The amount of Heracles' short-term liabilities converted into equity in August 1986 was GRD 20,2 billion (the remaining GRD 7,5 billion represented a conversion of long-term loans to equity); this was less than what was called for by the ratio. The results with the other ratios were similar.
(122) The Commission takes the view that in order to examine to what extent the debt conversion was greater than what was needed to maintain the company's viability it is appropriate, because of the specificity of the cement market in Greece, to compare Heracles with its slightly smaller but consistently profitable Greek competitor Titan, as it did when it enlarged the Article 93(2) proceedings in November 1995. Both companies operated in the same difficult economic circumstances, and faced similar costs for such things as labour, energy and interest rates. At the time of the capitalisation the prevailing market conditions for Greek producers differed significantly from those of their European competitors, in particular as regards the macroeconomic environment, input prices and conditions, national corporate law obligations, the system of fixed prices, and dependence on export markets.
(123) Moreover, as regards the financial year chosen for the comparison, the Commission considers, as it did when it enlarged the Article 93(2) proceedings, that 1987 is the proper reference year, because it was Heracles' first normal operating year after receiving the aid. Comparing figures for 1987 will allow an examination to be made of the situation at the time the State intervention took place.
(124) The Commission believes that the comparison between Heracles' and Titan's financial structure should be carried out on the basis of three financial ratios, namely net financial charges divided by turnover, net financial charges per tonne sold, and net financial charges per tonne produced. When it decided to enlarge the Article 93(2) proceedings in November 1995, the Commission used the first two ratios; in the light of the information exchanged in the course of the proceedings it is now of the opinion that it is appropriate to add the third ratio, namely financial charges per tonne produced. This will enable the Commission to carry out a better comparison of the two companies, because it compensates for differences in supply strategies whereby one company stocks its output while the other supplies direct from production.
(125) On the basis of the information received from the Greek authorities on 8 February 1999, which enables the Commission better to document its final conclusion, the Commission is thus in a position to refine the financial method for calculating Heracles' overcapitalisation. The calculation is based on more detailed configurations of financial charges, for both Heracles and Titan, in that income from participating interests can be deducted from the total amount of both companies' financial charges.
(126) Applying this method, the Commission finds that Titan's net financial charges represented 10,1 % of its turnover, whereas the quotient for Heracles was just 8,1 %. In terms of net financial costs related to volume sold, the quotients are GRD 469,9 per tonne for Titan and GRD 392,7 per tonne for Heracles; in terms of net financial costs per tonne produced, the quotients are GRD 423,5 per tonne for Titan and GRD 471,2 per tonne for Heracles.
(127) The Commission has applied Titan's ratios to Heracles in order to calculate the average theoretical amount of net financial expenditures saved by Heracles, and concludes that Heracles' overcapitalisation amounts to GRD 2488 million (approximately EUR 7 million).
(128) This method results in a smaller differential between the two companies' financial charges, and thus a smaller degree of overcapitalisation of Heracles as compared to Titan. The reasoning behind the method is that the financial charges used in the comparison between Heracles and Titan correspond, because they are both net amounts, which makes them comparable. In the financial world, net financial charges are preferred to gross financial charges for analyses of this kind, because they provide more accurate figures.
(129) The figure of GRD 2488 million represents the amount of the debt-to-equity conversion which exceeded what was necessary to ensure Heracles' long-term viability. The overcapitalisation had distortive effects on the European cement market, in that it left Heracles in a stronger competitive position, as appears from the increase in its exports, and the shift in the destination of its exports towards other Member States. This part of the aid was not necessary to restore Heracles' viability, went beyond the scope of remedying a serious disturbance in the Greek economy, unduly placed the company in a more favourable position vis-à-vis its competitors, and is not compatible with the common market under Article 92(3)(b) of the Treaty. In order to restore the previous competitive position, the benefits which the company derived from it must be returned.
(130) The approach followed here enables the Commission to calculate Heracles' overcapitalisation on the basis of the information available at the time when the State intervention took place, without making use of ex post information based on events which happened after the debt conversion and which were not known at the time of the State intervention. For these reasons the Commission disputes the approach taken by Titan in order to calculate Heracles' excess equity, which is based on the analysis of the company's cash flows after 1986 and its capacity to service its debt.
(131) Furthermore, the Commission's method for determining Heracles' overcapitalisation relates the financial charges of the two companies directly to their output, expressed both in monetary and in physical values. This makes it possible to reject certain artificial assumptions used by the BCA in determining Heracles' excess equity capital, such as the assumptions that Titan and Heracles had similar financial structures or that both financed their business using a similar mix of debt and equity, which do not correspond completely to the reality of that time.
(132) The Commission also disputes the approach taken by Heracles in order to demonstrate that it was not overcapitalised, which was based on a comparison of Heracles with a large number of international cement producers. As has been pointed out, the prevailing market conditions for Greek producers at the time of the capitalisation differed significantly from those of their world competitors, and an analysis based on a comparison of the financial ratios of companies operating in different environments and under different circumstances is not considered to be accurate.
(133) The analysis set out above takes account not only of the doubts that the Commission initially formulated regarding the compatibility of the aid in question, but also of the Commission's examination of the distortive effects of the aid in the Community. In this context the Commission has assessed whether the aid was granted in conformity with Decision 88/167/EEC, that is to say with Law 1386/83, and with Article 92 of the Treaty. This assessment has shown that the conversion of part of Heracles' debts into capital in 1986 can be considered to have been undertaken by the Greek Government in conformity with Decision 88/167/EEC.
(134) Turning to the question of compatibility with Article 92 of the Treaty, the examination demonstrates that one part of the total aid of GRD 27755 million, amounting to GRD 25267 million, can be considered compatible with the common market under Article 92(3)(b) of the Treaty on the ground that it helped to remedy a serious disturbance in the Greek economy without affecting trade to an extent contrary to the common market and without unduly placing the company in a more favourable position vis-à-vis its competitors. But the analysis also shows that Heracles was overcapitalised by GRD 2488 million. In order to rectify the distortive effect of the aid in the market, the Commission should accordingly require the Greek Government to recover the sum of GRD 2488 million from Heracles. The sum to be repaid should bear interest from the date on which it was made available to the recipient until the date on which it is repaid. Interest should be calculated on the basis of the reference rate which was used for calculating the grant equivalent of regional aid at the time the aid was granted.
(135) When the Court annulled the Commission's earlier positive decision on aid to Heracles it imposed a duty on the Commission to examine whether the aid distorted competition and affected trade between Member States, and in the analysis set out above the Commission has accordingly performed that duty.
IX
Conclusions
(136) The Commission has demonstrated here that the aid is unlawful and in part incompatible with the common market.
(137) Heracles argues that any reversal of the Commission's Decision on the compatibility of the aid would be in contradiction with the principles of legitimate expectations and of sound administration. Heracles contends that the facts on which the Commission based its decision remain the same; but it should be noted that in its judgment the Court of First Instance not only requires the Commission to assess the foreseeable effects of the aid but also - implicitly at least - places a duty on the Commission to consider the effects which were in fact observed in the years 1986 to 1991. Thus the facts the Commission has to consider are not confined to those relating to the time when the aid was granted, but include those which arose later.
(138) The Commission would point out, too, that the Court of Justice has consistently held(18) that, in view of the mandatory nature of the supervision of State aid by the Commission under Article 93 of the Treaty, undertakings to which an aid has been granted may not, in principle, entertain a legitimate expectation that the aid is lawful unless it has been granted in compliance with the procedure laid down in that Article. The fact that the Commission initially approved the aid to Heracles cannot be regarded as capable of having caused the recipient undertaking, Heracles, to entertain any legitimate expectation, since that Decision was challenged in due time before the Court, which annulled it. The Commission's error cannot, therefore, erase the consequences of the unlawful conduct of Greece,
HAS ADOPTED THIS DECISION:
Article 1
The recapitalisation of Heracles General Cement Company to the amount of GRD 27755 million constitutes aid within the meaning of Article 92(1) of the EC Treaty. Out of this aid a section amounting to GRD 25267 million is hereby found to be compatible with the common market, on the ground that it satisfies the tests for exemption under Article 92(3)(b) of the Treaty. The remainder of the aid, amounting to GRD 2488 million, is incompatible with the common market.
Article 2
1. Greece shall take the measures necessary to recover from the recipient the incompatible aid referred to in Article 1, which was granted to it unlawfully, and to secure the repayment of the sum of GRD 2488 million in aid referred to in Article 1.
2. Recovery shall be effected in accordance with the procedures of national law. The sums to be recovered shall bear interest from the date on which they were made available to the recipient until their actual recovery. The interest shall be calculated on the basis of the reference rate used to determine the grant equivalent of regional aid at the time when the aid was granted.
Article 3
Within two months of notification of this Decision, Greece shall inform the Commission of the measures it has taken to comply with it.
Article 4
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 17 March 1999.
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*****
COMMISSION DECISION
of 29 October 1990
concerning Regulation (EEC) No 685/69 and relating to the fixing of private storage aid for butter or cream
(90/549/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Commission Regulation (EEC) No 685/69 of 14 April 1969 on detailed rules of application for intervention on the market in butter and cream (1), as last amended by Regulation (EEC) No 3131/90 (2), and in particular Article 29 (1) thereof,
Whereas Article 29 of Regulation (EEC) No 685/69 lays down that, where there is a change in the buying-in price of butter, expressed in national currency, by the intervention agencies, private storage aid is increased or decreased accordingly; whereas, however, the Commission may decide, in accordance with the procedure provided for in Article 30 of Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (3), as last amended by Regulation (EEC) No 3117/90 (4), that the aid concerned will not be modified if the market situation justifies this; whereas the current situation on the market for butter and cream, characterized by surpluses, dictates that the devaluation of the green rates should not be reflected in the amount of aid;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS DECIDED AS FOLLOWS:
Article 1
The modification of the buying-in price for butter, expressed in national currency, resulting from the change in the green rate applicable from 11 October 1990 shall not be taken into account for the calculation of private storage aid under Article 29 of Regulation (EEC) No 685/69.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 29 October 1990.
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