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COMMISSION REGULATION (EC) No 566/2005
of 14 April 2005
amending the rates of the refunds applicable to certain milk products exported in the form of goods not covered by Annex I to the Treaty
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the markets in the milk and milk products sector (1), and in particular Article 31(3) thereof,
Whereas:
(1)
The rates of the refunds applicable from 24 March 2005 to the products listed in the Annex, exported in the form of goods not covered by Annex I to the Treaty, were fixed by Commission Regulation (EC) No 468/2005 (2).
(2)
It follows from applying the rules and criteria contained in Regulation (EC) No 468/2005 to the information at present available to the Commission that the export refunds at present applicable should be altered as shown in the Annex hereto,
HAS ADOPTED THIS REGULATION:
Article 1
The rates of refund fixed by Regulation (EC) No 468/2005 are hereby altered as shown in the Annex hereto.
Article 2
This Regulation shall enter into force on 15 April 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 April 2005. | [
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Commission Regulation (EC) No 334/2003
of 21 February 2003
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1947/2002(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 22 February 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 February 2003. | [
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*****
COMMISSION DECISION
of 28 March 1984
accepting an undertaking in connection with the anti-dumping proceeding concerning imports of pentaerythritol originating in Spain, and terminating that proceeding
(84/187/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the European Economic Community (1), as amended by Regulation (EEC) No 1580/82 (2), and in particular Article 10 thereof,
After consultation within the Advisory Committee as provided for by that Regulation,
Whereas:
A. Procedure
(1) In July 1983, the Commission received a complaint lodged by the European Council of Chemical Manufacturers' Federation (CEFIC) on behalf of producers representing all Community production of pentaerythritol.
The complaint contained evidence of dumping and of material injury resulting therefrom, which was considered sufficient to justify initiating a proceeding. The Commission accordingly announced, by a notice in the Official Journal of the European Communities (3), the initiation of an anti-dumping proceeding concerning imports into the Community of pentaerythritol falling within subheading ex 29.04 C I of the Common Customs Tariff (NIMEXE code 29.04-66), originating in Spain, and commenced an investigation.
(2) The Commission officially so advised the exporter and importers known to be concerned, the representatives of the exporting country and the complainants, and gave the parties directly concerned the opportunity to make known their views in writing and to request a hearing.
(3) The exporter and the main importer of the product concerned made their views known in writing. The latter also requested and was granted a hearing.
(4) The Commission sought and verified all information it deemed necessary for a preliminary determination and carried out investigations at the premises of the following companies:
- Degussa AG, Frankfurt, Federal Republic of Germany,
- Resem (Montedison Group), Castellanza, Italy,
- Polialco SA, Barcelona, Spain,
(5) The investigation of dumping covered the period 1 September 1982 to 31 August 1983.
B. Normal value
(6) The preliminary investigation to determine the existence of dumping in respect of imports of the product concerned originating in Spain showed that the prices of the like products marketed by the exporter on the Spanish domestic market had, over an extended period of time and in respect of substantial quantities, been lower than all costs in the ordinary course of trade, both fixed and variable, of material and manufacture, plus a reasonable amount for selling, administrative and other general expenses as well as a reasonable margin of profit. The normal value was, therefore, determined by adjusting production costs of the product concerned in order to allow a reasonable profit.
C. Export prices
(7) Export prices were determined on the basis of the prices actually paid or payable for the product originating in Spain and sold for export to the Community.
D. Comparison
(8) In comparing normal value with export prices the Commission took account, where appropriate, of differences affecting price comparability resulting from differences in conditions and terms of sale.
(9) The exporter claimed that an adjustment should be made for the amount of the import duties on imported raw material used for the production of the product concerned and for which he claimed to be exempted when the product concerned was exported. Furthermore, the exporter claimed that an adjustment should be made for the amount of the export tax rebate ('desgravación fiscal') refunded to him by the Spanish authorities when the product concerned was exported. This amount was said to be 10,5 % of the fob value of the product concerned plus the general customs tariff of 13 % applicable on imports of the product concerned into Spain. It was considered that the exporter submitted sufficient evidence concerning both claims and the requests were, therefore, granted in conformity with Article 2 (11) of Regulation (EEC) No 3017/79.
(10) All comparisons were made at ex-works level.
E. Margin
(11) The above preliminary determination of the facts shows the existence of dumping in respect of the Spanish exporter, the margin of dumping being equal to the amount by which the normal value as established exceeds the price for export to the Community. The weighted average margin amounts to 6,2 %.
F. Injury
(12) With regard to the injury caused by the dumped imports the evidence available to the Commission shows that imports into the Community from Spain of pentaerythritol increased from 816 tonnes in 1981, when Polialco started exporting the products concerned, to 2 224 tonnes in 1982, which represents an increase of 173 %. During the first six months of 1983 exports to the Community amounted to 1 006 tonnes, which on an annual basis would be 2 012 tonnes. Although this figure is lower than in 1982, it still represents a significant increase compared with the volume exported to the Community in 1981. The market share held by the product concerned originating in Spain increased from 1,7 % in 1981 to 5,1 % in 1982, and amounts to 4,7 % during the period covering the first six months of 1983.
(13) The resale prices of these imports undercut the prices of the Community producers during the investigation period by up to 6 %.
(14) The consequent impact on the Community producers concerned has been a significant reduction of their sales in the Community. Between 1981 and 1982 their sales dropped from 32 852 tonnes to 29 881 tonnes, which means a reduction of 9 %. During the first six months of 1983, sales by Community producers amounted to 14 016 tonnes, which on an annual basis would represent a decrease of 6 % between 1982 and 1983. Furthermore, the market share held by the Community producers concerned dropped from 70,3 to 68,9 % between 1981 and 1982 and amounted to 66,1 % during the first six months of 1983. With regard to the injury by the Community industry, account should be taken of the fact that one of the main producers of pentaerythritol in the Community had to stop manufacturing the product concerned in the beginning of 1983.
(15) With regard to the prices charged by the Community producers concerned to their customers, a significant price depression occurred in the period 1982/83 on their main markets.
(16) During the same period and particularly during the first six months of 1983, the profits of the Community producers dropped significantly and even turned into losses. (17) The Commission has considered whether injury has been caused by other factors such as decline of the consumption in the Community and it has been established that this decline has affected the Community producers more than it has affected the dumped imports. Furthermore, the substantial increase in dumped imports and the prices at which they are offered for sale in the Community led the Commission to determine that the effects of the dumped imports of pentaerythritol originating in Spain taken in isolation have to be considered as constituting material injury to the Community industry concerned.
G. Community interest
(18) In view of the particularly serious difficulties facing the Community industry, the Commission has come to the conclusion that it is in the Community's interests that action be taken.
H. Undertaking
(19) The exporter concerned was informed of the main findings of the preliminary investigation and commented on them. An undertaking was subsequently offered by Polialco concerning their exports of pentaerythritol to the Community.
(20) The effect of the said undertaking will be to increase the export prices to the extent that the dumping margin will be eliminated. The increase does not exceed the dumping margin found in the investigation.
(21) In these circumstances the undertaking offered is considered acceptable and the proceeding may, therefore, be terminated without imposition of an anti-dumping duty.
(22) No objections to this course were raised in the Advisory Committee,
HAS DECIDED AS FOLLOWS:
Article 1
The Commission hereby accepts the undertaking given by Polialco (Barcelona) in connection with the anti-dumping proceeding concerning imports of pentaerythritol originating in Spain and falling within Common Customs Tariff subheading ex 29.04 C I, corresponding to NIMEXE code 29.04-66.
Article 2
The anti-dumping proceeding concerning imports of pentaerythritol originating in Spain is hereby terminated.
Done at Brussels, 28 March 1984. | [
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COUNCIL DIRECTIVE 95/70/EC
of 22 December 1995
introducing minimum Community measures for the control of certain diseases affecting bivalve molluscs
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 43 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Whereas molluscs are listed in Annex II to the Treaty; whereas the marketing of molluscs constitutes an important source of revenue for the aquaculture sector;
Whereas the mollusc diseases referred to in Annex A, list II, to Council Directive 91/67/EEC of 28 January 1991 concerning the animal health conditions governing the placing on the market of aquaculture animals and products (3), have a very serious effect on the shellfish industry; whereas other diseases having a similar effect occur in third countries, whereas a list of such diseases should be drawn up and the Commission should be given the ability to adjust that list in the light of developments in the animal-health field;
Whereas an outbreak of such diseases can quickly take on epizootic proportions, causing mortality and disturbances on a scale liable considerably to reduce the profitability of shellfish-farming;
Whereas it is therefore necessary to establish at Community level the measures to be taken in the event of outbreaks of disease, in order to ensure rational development of shellfish-farming and to contribute to the protection of animal health in the Community;
Whereas Member States should report to the Commission and the other Member States all cases of abnormal mortality observed in bivalve molluscs;
Whereas, in such an event, measures must be taken aimed at preventing the spread of the disease, in particular with regard to the removal of live bivalve molluscs from the farms or zones concerned;
Whereas a thorough epidemiological investigation is essential to determine the origin of the disease and to prevent further spread;
Whereas, in order to ensure an effective system of control, diagnosis of the diseases must be harmonized and carried out under the auspices of responsible laboratories, the coordination of which may be ensured by a reference laboratory designated by the Community;
Whereas, in order to ensure uniform implementation of this Directive, a Community inspection procedure should be established;
Whereas common measures for the control of diseases form a minimum basis for maintaining a uniform standard of animal health;
Whereas the Commission should be entrusted with the task of adopting the necessary implementing measures,
HAS ADOPTED THIS DIRECTIVE:
Article 1
This Directive establishes minimum Community measures for the control of the diseases affecting bivalve molluscs referred to in this Directive.
Article 2
1. For the purposes of this Directive, the definitions laid down in Article 2 of Directive 91/67/EEC and Article 2 of Directive 91/492/EEC (4) shall apply as necessary.
2. In addition, 'observed abnormal mortality' shall mean sudden mortality affecting approximately 15 % of stocks and occurring over a short period between two inspections (confirmed within 15 days). In hatchery a mortality shall be considered abnormal when the farmer cannot obtain larvae during a period which included successive spawns from different broodstocks. In nursery a mortality shall be considered abnormal when a sudden sizeable mortality occurs in a short time on a number of tubes.
Article 3
Member States shall ensure that all farms rearing bivalve molluscs:
1. are registered by the official service; this registration must be kept constantly up to date;
2. keep a record of:
(a) live bivalve molluscs entering the farm, containing all information relating to their delivery, their number or weight, their size and their origin;
(b) bivalve molluscs leaving the farm for reimmersion, containing all information relating to their dispatch, their number or weight, their size and destination;
(c) observed abnormal mortality.
This record, which shall be open to scrutiny by the official service at all times, on demand, shall be updated regularly and kept for four years.
Article 4
1. Member States shall ensure that a monitoring and sampling programme is applied in bivalve mollusc farms, farming areas and harvested natural beds in order to observe whether there is an abnormal mortality and keep track of the health situation of stocks.
In addition, the official service may apply the above programme to purification centres and storage tanks which discharge water into the sea.
If, during application of this programme, any abnormal mortality is observed, or if the official service has information giving it reason to suspect the presence of diseases, the following measures shall be taken:
- a list shall be drawn up of the sites where the diseases referred to in Annex A, list II to Directive 91/67/EEC are present, provided that such diseases are not the subject of a programme approved pursuant to the aforementioned Directive,
- a list shall be drawn up of the sites at which abnormal mortality has been observed as a result of the presence of the diseases referred to in Annex D, or on which the official service has information giving it reason to suspect the presence of diseases,
- monitoring of the evolution and geographical spread of the diseases referred to in the first and second indents.
2. The detailed rules for implementing this Article, and inter alia the rules to be applied for establishing the programme referred to in paragraph 1, particularly as regards the frequency and timetable of monitoring, procedures for taking samples (statistically representative volume) and methods of diagnosis, shall be adopted in accordance with the procedure provided for in Article 10.
Article 5
1. Member States shall ensure that the suspected presence of any diseases referred to in Article 4 and any abnormal mortality rate observed in bivalve molluscs in farms, in farming areas or in harvested natural beds or in purification centres or storage tanks which discharge water into the sea is notified as soon as possible to the official service by the shellfish-farmers or any other person who has made such observations.
2. In the case referred to in paragraph 1, the official service in the Member States shall ensure that:
(a) samples are taken for examination in an approved laboratory;
(b) pending the result of the examination referred to in (a), no molluscs leave the affected farm, farming area or harvested natural beds or purification centres or storage tanks which discharge water into the sea for relaying or reimmersion in another farm or in the aquatic environment, unless authorized by the official service.
3. If the examination referred to in paragraph 2 (a) fails to demonstrate the presence of a pathogen, the restrictions referred to in paragraph 2 (b) shall be lifted.
4. If the examination referred to in paragraph 2 shows the presence of a pathogen causing the observed abnormal mortality capable of being the cause of that mortality, or of a pathogen of one of the diseases referred to in Article 4, an epizootic investigation must be carried out by the official service in order to determine the possible means of contamination and to investigate whether molluscs have left the farm, the farming area or the harvested natural beds for relaying or reimmersion elsewhere during the period preceding observation of the abnormal mortality.
If the epizootic investigation shows that the disease has been introduced into one or more farms, farming areas or harvested natural beds as a result inter alia of molluscs being moved, the provisions of paragraph 2 shall apply.
However, by way of derogation from Article 3 (1) (c) of Directive 91/67/EEC, the official service may, within its territory, authorize the movement of live bivalve molluscs to other farms, farming areas or harvested natural beds which are infected with the same disease.
If necessary, further appropriate measures may be decided on in accordance with the procedure in Article 10.
5. The official service shall ensure that the Commission and the other Member States are immediately informed, in accordance with the current Community procedures, of any cases of abnormal mortality rates observed involving a pathogen, of any measures taken to analyse and control the situation and of the cause of the mortality.
Article 6
1. Sampling and laboratory testing for the determination of the cause of abnormal mortality of bivalve molluscs shall be carried out using the methods established in accordance with the procedure laid down in Article 10.
2. Member States shall ensure that in each Member State a national reference laboratory is designated, with facilities and expert personnel enabling it to carry out the testing referred to in paragraph 1.
3. By way of derogation from paragraph 2, Member States which do not have a national laboratory competent in the matter may use the services of a national laboratory with competence in the matter in another Member State.
4. The list of national reference laboratories for diseases of bivalve molluscs is set out in Annex C.
5. National reference laboratories shall cooperate with the Community reference laboratory referred to in Article 7.
Article 7
1. The Community reference laboratory for diseases of bivalve molluscs is indicated in Annex A.
2. Without prejudice to Decision 90/424/EEC of 26 June 1990 (1) on expenditure in the veterinary field and in particular Article 28 thereof, the functions and duties of the laboratory referred to in paragraph 1 shall be those laid down in Annex B.
Article 8
1. Commission experts may, to the extent necessary to ensure uniform application of this Directive, carry out on-the-spot checks. In so doing, they may carry out random, non-discriminatory checks to ensure that the competent authority is monitoring compliance with the requirements of this Directive.
The Commission shall inform the Member States of the results of these checks.
2. The checks referred to in paragraph 1 shall be carried out in collaboration with the competent authority.
3. The Member State in whose territory the inspections are carried out shall provide the experts with any assistance they require to accomplish their task.
4. Detailed rules for the application of this Article shall be adopted in accordance with the procedure laid down in Article 10.
Article 9
Annex A shall be amended as necessary by the Council, acting by a qualified majority on a proposal from the Commission.
Annexes B, C and D may be amended as necessary in accordance with the procedure laid down in Article 10.
Article 10
1. Where the procedure laid down in this Article is to be followed, matters shall be referred without delay to the Standing Veterinary Committee, (hereinafter referred to as 'the Committee'), set up by decision 68/361/EEC (2), by its Chairman, either on his own initiative or at the request of a Member State.
2. The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within the time limit which the Chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the Committee shall be weighted in the manner set out in that Article. The Chairman shall not vote.
3. (a) The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the Committee.
(b) If the measures envisaged are not in accordance with the opinion of the Committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority.
If, on the expiry of a period of three months, from the date of referral to the Council, the Council has not acted, the proposed measures shall be adopted by the Commission, save where the Council has decided against the said measures by a simple majority.
Article 11
By 31 December 1999 at the latest, the Commission shall submit a report to the Council which has been drawn up, if necessary after consulting the Scientific and veterinary Committee, taking account of experience acquired in applying this Directive and of technical and scientific developments, accompanied where appropriate by any proposals for amendments.
The Council shall act by a qualified majority on any such proposals.
Article 12
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 June 1997. They shall forthwith inform the Commission thereof.
When Member States adopt these provisions, 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. However, from the date laid down in paragraph 1, Member States may, subject to the general rules of the Treaty, maintain or apply for their production stricter provisions than those laid down by this Directive. They shall notify the Commission of any such measure.
3. Member States shall communicate to the Commission the main provisions of national law which they adopt in the field governed by this Directive.
Article 13
This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.
Article 14
This Directive is addressed to the Member States.
Done at Brussels, 22 December 1995. | [
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COUNCIL REGULATION (EC) No 1821/96 of 16 September 1996 amending for the sixth time Regulation (EEC) No 1866/86 laying down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community and, in particular, Article 43 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion from the European Parliament (2),
Whereas, under Articles 2 and 4 of Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and acquaculture (3), the Council is responsible for adopting, in the light of the available scientific advice, the conservation measures necessary to ensure the rational and responsible exploitation of living marine resources on a sustainable basis; whereas, to that end, the Council may lay down technical measures concerning fishing gear and the ways in which it is used;
Whereas Regulation (EEC) No 1866/86 (4) lays down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound;
Whereas the International Baltic Sea Fishery Commission, set up by the Convention on fishing and conservation of living resources in the Baltic Sea and the Belts (Gdansk Convention) and hereinafter referred to as the 'Baltic Sea Commission`, lays down the rules governing fishing operations in the Baltic Sea;
Whereas by letter of 11 September 1995 the International Baltic Sea Commission notified the Contracting States of certain recommendations, adopted at the 21st session of the Commission, to modify, among other things, the technical measures;
Whereas the Gdansk Convention provides that the Community must give effect to the said recommendations in the waters of the Baltic Sea, the Belts and the Sound, subject to the objection procedure laid down in Article XI of the Convention; whereas there are no grounds for such objections,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 1866/86 is hereby amended as follows:
(1) Article 9 (1) is replaced by the following:
'1. It shall be prohibited, in fishing for salmon (Salmo salar) or sea trout (Salmo trutta):
- to use drifting or anchored nets from 15 June to 30 September in the waters of subdivisions 22 to 28, 29 south of 59°30'N and 32,
- to use drifting or anchored nets from 1 June to 15 September in the waters of subdivisions 29, 30 and 31 north of 59°30'N,
- to use drifting lines and anchored lines from 1 April to 15 November in the waters of subdivisions 22 to 31,
- to use drifting lines and anchored lines from 1 July to 15 September in the waters of subdivision 32.
The area of prohibition during the closed season is beyond four nautical miles measured from the baselines, except in subdivision 32 and the area east of longitude 22°30'E (Bengtskar lighthouse) inside the Finnish fishery zone where fishing with drifting lines and anchored lines is prohibited from 1 July to 15 September.`
(2) Footnote 4 on page 4 of Annex IV shall be replaced by the following:
'(4) With the exception of subdivisions 22-24 where normal trawls and Danish seines with a mesh opening of 90 mm are allowed.`
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 January 1996.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 September 1996. | [
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COUNCIL REGULATION (EEC) No 2530/80 of 30 September 1980 amending Regulation (EEC) No 315/68 fixing the quality standards for flowering bulbs, corms and tubers
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 234/68 of 27 February 1968 on the establishment of a common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage (1), and in particular Article 3 thereof,
Having regard to the proposal from the Commission,
Whereas Council Regulation (EEC) No 315/68 of 12 March 1968 fixing the quality standards for flowering bulbs, corms and tubers (2), as last amended by Regulation (EEC) No 338/77 (3), lays down in the Annex thereto provisions concerning size gradings ; whereas those provisions do not cover products Allium neapolitanum, Ixia, Eranthis cilicica and hiemalis, Fritillaria meleagris, its cultivars and hybrids and Sparaxis tricolor, its cultivars and hybrids ; whereas those products should be included in that Annex in order to achieve the purposes of the quality standards more satisfactorily;
HAS ADOPTED THIS REGULATION:
Article 1
The products listed in the Annex to this Regulation, together with the provisions relating to each of them, shall be inserted in the Table in Section III of the Annex to Regulation (EEC) No 315/68, in their respective alphabetical positions.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply with effect from 1 July 1981.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 September 1980. | [
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COMMISSION REGULATION (EC) No 449/2000
of 28 February 2000
imposing a provisional anti-dumping duty on imports of malleable cast iron tube or pipe fittings originating in Brazil, the Czech Republic, Japan, the People's Republic of China, the Republic of Korea and Thailand and accepting an undertaking offered by an exporting producer in the Czech Republic
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
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), as last amended by Regulation (EC) No 905/98(2), and in particular Article 7 thereof,
After consulting the Advisory Committee,
Whereas:
1. PROCEDURE
1.1. Initiation
(1) On 29 May 1999, the Commission announced by a notice (hereinafter referred to as "Notice of Initiation") published in the Official Journal of the European Communities(3) the initiation of an anti-dumping proceeding with regard to imports into the Community of malleable cast iron tube or pipe fittings originating in Brazil, Croatia, the Czech Republic, the Federal Republic of Yugoslavia (hereinafter referred to as "Yugoslavia"), Japan, the People's Republic of China (hereinafter referred to as "China"), the Republic of Korea (hereinafter referred to as "Korea") and Thailand.
(2) The proceeding was initiated as a result of a complaint lodged in April 1999 by the Defence Committee of Malleable Cast Iron Tube or Pipe Fittings Industry of the European Union (hereinafter referred to as "complainant") on behalf of producers representing 100 % of the Community production of malleable cast iron tube or pipe fittings. The complaint contained evidence of dumping of the said product and of material injury resulting therefrom, which was considered sufficient to justify the initiation of a proceeding.
(3) The Commission officially advised the exporting producers and importers/traders known to be concerned as well as their associations, the representatives of the exporting countries concerned and the complainant, about the initiation of the proceeding. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the Notice of Initiation.
(4) A number of exporting producers in the countries concerned, as well as Community producers, Community users and importers/traders made their views known in writing. All parties who so requested within the above time limit and indicated that there were particular reasons why they should be heard were granted the opportunity to be heard.
(5) The Commission sent questionnaires to parties known to be concerned and to all the other companies which made themselves known within the deadlines set out in the Notice of Initiation. Replies were received from six Community producers, 11 exporting producers in the countries concerned, as well as from their related importers in the Community. The Commission also received replies from 17 unrelated importers/traders in the Community as well as from two users.
Verification visits were carried out at the premises of the following companies:
(a) Community producers
- Georg Fischer GmbH, Austria
- R. Woeste Co GmbH & Co. KG, Germany
- Ferriere a Fonderie Di Dongo S.P.A., Italy
- Raccordi Pozzi Spoleto SpA, Italy
- Accesorios de Tuberia, SA, Spain
- Crane Fluid System, United Kingdom
(b) Unrelated importers in the Community
- SIRE SA, France
- Sofreco, France
- Hage Fittings GmbH & Co KG, Germany
- Hermann Schmidt, Germany
- Intersantherm, Warenhandelsgesellschaft mbH, Germany
- "Invest" Import und Export GmbH, Germany
- Euraccordi, Italy
- GT Comis SpA, Italy
- Jannone Arm SpA, Italy
- Jannone SpA, Italy
- OML SRL, Italy
- Gill & Russell Ltd, United Kingdom
- T. Hackett & Sons Ltd, United Kingdom
(c) Users
- Società Italiana per il Gas, Italy
- Transco BG plc, United Kingdom
(d) Exporting producers
- Brazil
- Indústria de Fundição Tupy Ltda, Joinville
- The Czech Republic
- Moravské Zelezárny as, Olomouc and its related domestic sales company Moze Prodej sro, Olomouc
- Japan
- Hitachi Metals Ltd, Tokyo
- Korea
- Yeong Hwa Metal Co. Ltd, Kyongnam
- Thailand
- BIS Pipe Fitting Industry Company Ltd, Samutsakorn
- Siam Fittings Co. Ltd, Samutsakorn
- Thai Malleable Iron & Steel Co. Ltd, Bangkok
- China (Market Economy Status verifications)
- Jianzhong Malleable Iron Factory, Hebei
- Jinan Meide Casting Co. Ltd, Jinan
(6) The investigation of dumping and injury covered the period from 1 April 1998 to 31 March 1999 (hereinafter referred to as "the investigation period" or "IP"). The examination of trends in the context of the injury analysis covered the period from 1 January 1995 up to the end of the investigation period (hereinafter referred to as "the injury investigation period" or "IIP").
1.2. Submissions received regarding the complaint
(7) A number of parties questioned why Bulgaria was not included in the investigation as one of the exporting countries. According to them, it was discriminatory to initiate a proceeding only with regard to the eight countries concerned and not against Bulgaria.
(8) The situation regarding Bulgaria was examined in the framework of the analysis of the complaint prior to the initiation of the proceeding. The complainant provided evidence of normal value and export price for Bulgarian products in the same fashion as for other countries in the complaint (price lists, Eurostat figures). On the basis of this evidence, no dumping appeared to exist, with the consequence that no investigation concerning Bulgaria could be initiated.
2. PRODUCT CONCERNED AND LIKE PRODUCT
2.1. Product concerned
(9) The product concerned as described in the Notice of Initiation is malleable cast iron tube or pipe fittings.
(10) The investigation has shown that there are a number of different types of malleable cast iron tube or pipe fittings such as threaded, grooved, plain end and flanged/weld fittings. All of them fall under the same CN code 73071910. With respect to these different types, it was found that threaded fittings, on the one hand, and other fittings, on the other, have different basic physical and technical characteristics, in particular in terms of their joining system. Indeed, the former are joined by screwing, while the latter can only be joined by using different technologies, such as welding or coupling.
(11) On the basis of the result of the investigation, it has also been found that the producers in the exporting countries concerned sell in the Community market exclusively threaded fittings, while the other types of fittings are either not produced or not sold by the parties concerned. Given the difference between threaded and non-threaded malleable fittings and the fact that only threaded malleable fittings are exported to the Community by the countries concerned, it is concluded that the product concerned by this proceeding covers threaded malleable cast iron tube or pipe fittings only (hereinafter "malleable fittings" or "product concerned"). These fittings meet the requirements specified in the international standards referred in the complaint (i.e. EN 10242, ISO - 49 and ANSI)(4) and are currently classifiable within CN code ex73071910.
(12) This product is produced in many different types according to, inter alia, their size, shape, surface finishing and grade of cast iron used. Despite these differences, all these types have the same basic physical and technical characteristics as well as the same uses. They are, therefore, considered as a single product.
2.2. Like product
(13) The Commission found that malleable fittings produced by the Community producers and sold on the Community market are like products to the malleable fittings produced in the countries concerned and exported to the Community, since there are no differences in the basic characteristics and uses of the different types of malleable fittings. The same is true with regard to the malleable fittings sold on the domestic market of the exporting countries and the types exported to the Community. Therefore, they were also like products within the meaning of Article 1(4) of Regulation (EC) No 384/96 (hereinafter referred to as the "basic Regulation"). It was also found that malleable fittings exported from China to the Community and those sold on the domestic market of Thailand, which served as an analogue country, were alike.
2.2.1. Black heart and white heart fittings
(14) In this respect, some parties claimed that the malleable fittings manufactured and sold by the Community producers could not be considered comparable to those produced and exported to the Community by some of the exporting countries concerned on the grounds that the grade of the material used for the Community-produced ones is, in general, white heart, while the grade of the material used for the exported ones is black heart.
(15) The investigation has provisionally shown that white heart fittings and black heart fittings have closely resembling physical characteristics, the same end uses and are thus, in general, interchangeable. This has been confirmed by the fact that the users of the product under investigation, such as gas distributors and installers, indeed do not differentiate between white heart or black heart fittings. Furthermore, both white heart and black heart fittings are included in the European Standard EN 10242 and in the international standard ISO 49, which specify the requirements for the design and performance of the malleable fittings under investigation. As concerns, in particular, the grade of the material to be used, both white heart and black heart are permitted.
(16) Given the above, it is provisionally concluded that the white heart malleable fittings manufactured and sold by part of the Community producers should be considered as like product to the black heart malleable fittings produced and exported to the Community by the exporting countries concerned.
2.2.2. Particularities of Korean exports
(17) Korean exporting producers have claimed that their products should not be part of the product concerned since they had certain technical peculiarities. These malleable fittings have taper external threads and taper internal threads, contrary to the other imported malleable fittings, which have taper external threads and parallel internal threads.
(18) However, the investigation has shown that, apart from these technical specifications, the Korean malleable fittings have the same physical and technical characteristics of the other imported malleable fittings. Furthermore, as concerns the use, the investigation has shown that the Korean malleable fittings are used in a similar way to the malleable fittings imported from the other countries concerned. Indeed, in one Member State where both types are used, they have been found to be interchangeable. In fact, users can and do switch from one type to the other and it is mainly by reason of a traditional and historical preference that the taper/taper type is still being preferred in the said Member State. Furthermore, both types are included in the abovementioned European Standard EN 10242, which specifies the requirements for the design and performance of malleable fittings intended for the connection of elements threaded in accordance with ISO 7-1, size 1/8 to 6.
(19) On that basis, it is, therefore, provisionally concluded that the malleable fittings produced by the Korean exporting producers and exported to the Community are similar or comparable to other imported malleable fittings.
3. DUMPING
A. MARKET ECONOMY COUNTRIES
3.1. General methodology
3.1.1. Normal value
(20) As far as the determination of normal value is concerned, the Commission first established, for each exporting producer, whether its total domestic sales of malleable fittings were representative in comparison with its total export sales of the product concerned to the Community. In accordance with Article 2(2) of the basic Regulation, domestic sales of an exporting producer were considered representative when the total domestic sales volume was at least 5 % of its total export sales volume to the Community.
(21) The Commission subsequently identified those types of malleable fittings sold domestically by the companies having representative domestic sales that were identical or directly comparable to the types sold for export to the Community. In general, types with the same size, shape, surface finishing and grade of cast iron used were considered to be comparable.
(22) For each of the types sold by the exporting producers on their domestic markets and found to be directly comparable to types sold for export to the Community, it was established whether domestic sales were sufficiently representative for the purposes of Article 2(2) of the basic Regulation. Domestic sales of a particular type were considered sufficiently representative when the total domestic sales volume of malleable fittings of that type during the IP represented 5 % or more of the total sales volume of malleable fittings of the comparable type exported to the Community.
(23) An examination was also made as to whether the domestic sales of each type could be regarded as having been made in the ordinary course of trade, by establishing the proportion of profitable sales to independent customers of the type in question. In cases where the sales volume of malleable fittings sold at a net sales price equal to or above the calculated cost of production (hereinafter also referred to as "profitable sales") represented 80 % or more of the total sales volume and where the weighted average price of that type was equal to or above cost of production, normal value was based on the actual domestic price, calculated as a weighted average of the prices of all domestic sales made during the IP, irrespective of whether all these sales were profitable or not. In cases where the volume of profitable sales of malleable fittings represented less than 80 % but 10 % or more of the total sales volume, normal value was based on the actual domestic price, calculated as a weighted average of profitable sales only.
(24) In cases where the volume of profitable sales of any type of malleable fittings represented less than 10 % of the total sales volume, it was considered that this particular type was sold in insufficient quantities for the domestic price to provide an appropriate basis for the establishment of the normal value.
(25) Wherever domestic prices of a particular type sold by an exporting producer could not be used, constructed normal value had to be used in preference to domestic prices of other similar types or to domestic prices of other exporting producers. Due to the number of different types and the variety of factors (such as quality control, quality of material used, weight, etc.) affecting them, using domestic prices of other exporting producers would have meant in this case making numerous adjustments, most of which would have had to be based on estimates. It was therefore considered that constructed value of each exporting producer formed a more appropriate basis to establish normal value.
(26) Consequently, in accordance with Article 2(3) of the basic Regulation, normal value was constructed by adding to the manufacturing costs of the exported types, adjusted where necessary, a reasonable percentage for selling, general and administrative expenses ("SG & A") and a reasonable margin of profit. To this end, the Commission examined whether the SG & A incurred and the profit realised by each of the exporting producers concerned on the domestic market constituted reliable data.
(27) Actual domestic SG & A expenses were considered reliable when the domestic sales volume of the company concerned could be regarded as representative when compared to the volume of export sales to the Community. The domestic profit margin was determined on the basis of domestic sales made in the ordinary course of trade, i.e. when these sales to independent customers at prices equal to or above the cost of production represented at least 10 % of the total of domestic sales volume of the product concerned made by the company concerned. Where this criterion was not met, a weighted average profit margin of the other companies with sufficient sales in the ordinary course of trade in the country concerned was used.
3.1.2. Export price
(28) In all cases where malleable fittings were exported to independent customers in the Community, the export price was established in accordance with Article 2(8) of the Basic Regulation, namely on the basis of export prices actually paid or payable.
(29) Where the export sale was made to a related importer, the export price was constructed pursuant to Article 2(9) of the basic Regulation, namely on the basis of the price at which the imported products were first resold to an independent buyer. In such cases, adjustments were made for all costs incurred between importation and resale and for profits accruing, in order to establish a reliable export price. On the basis of the information available from cooperating unrelated importers, this profit was set at around 7 %.
3.1.3. Comparison
(30) For the purpose of ensuring a fair comparison between the normal value and the export price, due allowance in the form of adjustments was made for differences affecting price comparability in accordance with Article 2(10) of the Basic Regulation.
3.1.4. Dumping margin for the companies investigated
(31) According to Article 2(11) of the basic Regulation, for each exporting producer the weighted average normal value by type was compared with the weighted average export price.
3.1.5. Residual dumping margin
(32) A "residual" dumping margin was determined in accordance with Article 18 of the basic Regulation, on the basis of the facts available.
(33) For those countries with a level of cooperation close to the information provided by Eurostat, i.e. where there was no reason to believe that any exporting producer abstained from cooperating with the investigation, it was decided to set the residual dumping margin at the level of the cooperating company with the highest dumping margin in order to ensure the effectiveness of any measures.
(34) For those countries where the level of cooperation was low, information from the cooperating company with the highest dumping margin was used. The residual dumping margin was determined on the basis of the weighted average margin of the dumped types exported in representative quantities. This approach was also considered necessary in order to avoid giving a bonus for non-cooperation and in view of the fact that there were no indications that a non-cooperating party had dumped at a lower level.
3.2. Brazil
(35) One company replied to the questionnaire for exporting producers. A company in the Community related to this exporting producer also replied to the questionnaire intended for related importers.
3.2.1. Normal value
(36) The procedures and methodologies followed by the Commission in order to determine the normal value of products originating in Brazil were the same as those explained under 3.1.1.
(37) In its reply to the questionnaire, the company used the cost of manufacturing of the units sold as a basis for the allocation of the SG & A to each type of the product concerned in the domestic market, while no such a system was internally used for the allocation of costs. Therefore, it was considered necessary to change the allocation method to the effect that the above costs were allocated on the basis of the turnover according to Article 2(5) of the basic Regulation.
(38) For about half of the types sold for export to the Community, normal values were established on the basis of the domestic sales price of comparable types in accordance with Article 2(2) of the basic Regulation.
(39) For all other types of the product concerned sold for export to the Community normal value was calculated in accordance with Article 2(3) of the basic Regulation. The SG & A expenses and profit used were those determined for the exporting producer in question.
3.2.2. Export price
(40) The procedures and methodologies followed by the Commission to assess the export price of products originating in Brazil were the same as those explained under point 3.1.2.
(41) Exports were made to both unrelated and related companies. The Commission excluded the sales for export to the Community made via the related company in the Community from the dumping calculations, as they represented a negligible part of the quantity exported by the Brazilian exporting producer and thus could not have had any material impact on the findings.
(42) All other sales for export were to independent importers in the Community. Consequently, the export price was established according to Article 2(8) of the basic Regulation by reference to the prices actually paid or payable.
3.2.3. Comparison
(43) Allowances for differences in indirect taxes, level of trade, transport, insurance, handling, loading and ancillary costs, credit, commissions and after-sales costs have been granted where applicable and justified.
(44) The exporting producer claimed an adjustment to the normal value and to the export price for differences in packing costs. However, the company could not submit any evidence showing such a difference and the Commission could therefore not grant the adjustment claimed.
(45) The exporting producer claimed adjustments to the normal value and export price for promotion and advertising costs. It was not possible during the verification to establish with a reasonable degree of accuracy the correctness of the amounts of the expenses incurred. Moreover, the company did not demonstrate that these expenses affected price comparability. The Commission decided therefore to make no adjustment for promotion and advertising.
(46) The company also claimed an adjustment to the normal value for differences in financing costs for keeping stocks. However, it was found that stocks kept for domestic and export sales were either not separately identifiable or that the periods during which products destined for the domestic and the Community market were kept in stock, were by and large the same or even identical. Moreover, the exporting producer could not demonstrate that this affected price comparability. Consequently, the adjustment could not be granted.
(47) An adjustment to the domestic sales prices for refund of certain indirect taxes was claimed. The claim made was calculated on a wrong basis and largely exaggerated. The adjustment claimed has therefore been reduced provisionally to 50 % of the claimed amount. The Commission will further investigate this issue in order to establish the amount of indirect taxes which was actually refunded on export sales made to the Community and at the same time borne by the product concerned when consumed in Brazil.
(48) As the exporting producer had used exchange rates which were not linked to the date of the sale, the Commission has recalculated the export price by using exchange rates at the date of the invoice, in accordance with Article 2(10)(j) of the basic Regulation.
(49) The same adjustments made to the normal value based on domestic sales were also made on the normal value calculated in accordance to Article 2(3) of the basic Regulation.
3.2.4. Dumping margin
(50) As provided under Article 2(11) of the basic Regulation, the weighted average normal values of each type of the product concerned exported to the Community were compared to the weighted average export price of each corresponding type of the product concerned.
(51) The comparison showed the existence of dumping in respect of the cooperating exporting producer. The provisional dumping margin expressed as a percentage of the cif import price at the Community border is:
Indústria de Fundição Tupy Ltda: 26,1 %
(52) Since the level of cooperation was high, the residual provisional dumping margin was set at the same level as for the cooperating company, i.e. 26,1 %.
3.3. The Czech Republic
(53) One company replied to the questionnaire for exporting producers. This reply included data on domestic sales made by a related sales company on the domestic market. A company in the Community related to this exporting producer also replied to the questionnaire intended for related importers.
3.3.1. Normal value
(54) The procedures and methodologies followed by the Commission in order to determine the normal value of products originating in the Czech Republic were the same as those explained under point 3.1.1.
(55) The domestic SG & A expenses reported by the exporting producer contained amounts which were either not related to the product concerned or not referring to the investigation period. The reported SG & A expenses were accordingly corrected.
(56) The domestic SG & A expenses reported for the related domestic sales company were allocated in such a way that the result did not reasonably reflect the costs associated with the sale of the product concerned. The Commission therefore reallocated the SG & A expenses taking into consideration the expenses incurred for the different product categories sold.
(57) When calculating the cost of production of each type sold domestically, the global amount of SG & A expenses, corrected as explained above were allocated, in the absence of any historically applied system, to each product type on the basis of turnover according to Article 2(5) of the basic Regulation.
(58) For about half of the types sold for export to the Community, normal values were established on the basis of the domestic sales price of comparable types in accordance with Article 2(2) of the basic Regulation.
(59) For all other types of the product concerned sold for export to the Community normal value was calculated in accordance with Article 2(3) of the basic Regulation. The SG & A expenses and the profit used were those determined for the exporting producer in question.
(60) The cooperating company had classified a number of exported product types as being identical and reported one single cost of manufacturing for those types. The Commission's investigation revealed that the product types in question were in fact different and had a different cost of manufacturing. The cost of manufacturing of those different product types was consequently used to calculate the normal value as explained above.
3.3.2. Export price
(61) The procedures and methodologies followed by the Commission to assess the export price of products originating in the Czech Republic were the same as those explained under point 3.1.2.
(62) Exports were made to both unrelated and related companies. The Commission excluded the sales for export to the Community made by the related importer from the dumping calculations, as they represented a negligible pan of the quantities exported by the Czech exporting producer and thus could not have had any material impact on the calculations.
(63) All other sales for export were to independent importers in the Community. Consequently, the export price was established according to Article 2(8) of the basic Regulation by reference to the prices actually paid or payable.
3.3.3. Comparison
(64) Allowances for differences in level of trade, transport, credit and commissions have been granted where applicable and justified.
(65) The exporting producer and the related domestic sales company claimed an allowance on the normal value for an additional hypothetical quantity discount which would be granted on the domestic market if quantities similar to quantities exported to customers in the Community were sold to customers on the domestic market. It should be noted that the Commission has already taken into account differences in quantities sold by deducting from the sales prices those discounts and rebates given for any such differences which were properly quantified and directly linked to the sales under consideration.
(66) As the exporting producer had used exchange rates that were not linked to the date of the sale, the Commission has recalculated the turnover of each export sale by using exchange rates at the date of the invoice, in accordance with Article 2(10)(j) of the basic Regulation.
(67) The same adjustments made to the normal values based on domestic sales were also made to the normal values calculated in accordance with Article 2(3) of the basic Regulation.
3.3.4. Dumping margin
(68) As provided under Article 2(11) of the basic Regulation, the weighted average normal values of each type of the product concerned exported to the Community were compared to the weighted average export price of each corresponding type of the product concerned.
(69) The comparison showed the existence of dumping in respect of the cooperating exporting producer. The provisional dumping margin expressed as a percentage of the cif import price at the Community border is:
Moravské Zelezárny as: 28,4 %
(70) Since the level of cooperation was high, the residual provisional dumping margin was set at the same level as for the cooperating company, i.e. 28,4 %.
3.4. Japan
(71) One company replied to the questionnaire for exporting producers. A company in the Community related to this exporting producer also replied to the questionnaire intended for related importers.
3.4.1. Normal value
(72) The procedures and methodologies followed by the Commission in order to determine the normal value of products originating in Japan were the same as those explained under point 3.1.1, except where, according to Article 18 of the basic Regulation, information available was used.
(73) Since the company did not provide the cost of production of certain types and in order not to grant a bonus for non-cooperation pursuant to Article 18 of the basic Regulation, the Commission applied to these types the dumping margin of the most dumped types for which there were representative sales.
(74) For some of the remaining types, normal value was established on the basis of the domestic price of comparable types in accordance with Article 2(2) of the basic Regulation.
(75) For all other types of the product concerned, sold for export to the Community normal value was calculated in accordance with Article 2(3) of the basic Regulation. This was done by adding to the manufacturing cost of the exported types the company's own SG & A expenses and its domestic profit margin, in accordance with Article 2(6) of the basic Regulation.
3.4.2. Export price
(76) The procedures and methodologies followed by the Commission to assess the export price of products originating in Japan were the same as those explained under point 3.1.2.
(77) A major part of the sales for export to the Community were made to a related importer in the Community. In this case the Commission had to construct the export price according to Article 2(9) of the basic Regulation. Prices for the remaining export transactions were determined according to Article 2(8).
3.4.3. Comparison
(78) The company claimed allowances for transport and for costs relating to differences in level of trade. However, as no explanation or reliable evidence was provided by the company during the on-the-spot verification and no justification for these allowances was found in the reply to the questionnaire, the Commission services could not accept them.
3.4.4. Dumping margin
(79) As provided by Article 2(11) of the basic Regulation, the comparison was made on the basis of a weighted average normal value to a weighted average export price.
(80) The comparison showed the existence of dumping in respect of the cooperating exporting producer. The provisional dumping margin expressed as a percentage of the cif import price at the Community border is:
Hitachi Metals Ltd: 17,6 %
(81) The methodology followed to determine a provisional residual dumping margin for Japan was the one explained under point 3.1.5, for countries where the level of cooperation was low. On this basis, the residual dumping margin is 28,3 %.
3.5. Korea
(82) One company replied to the questionnaire for exporting producers.
3.5.1. Normal value
(83) The procedures and methodologies followed by the Commission to assess the normal value of products originating in Korea were the same as those explained under point 3.1.1.
(84) In line with the methodology referred to above, it was possible, for about a quarter of the types, to establish normal value on the basis of the domestic price of comparable types.
(85) For all other types of the product concerned sold for export to the Community by the cooperating company, normal value was calculated in accordance with Article 2(3) of the basic Regulation.
(86) This was done by adding the company's own domestic SG & A expenses and domestic profit margin to the manufacturing cost of the exported types, in accordance with Article 2(6) of the basic Regulation.
3.5.2. Export price
(87) The procedures and methodologies followed by the Commission to assess the export price of products originating in Korea were the same as those explained under point 3.1.2.
(88) All sales of the product concerned made by the cooperating company on the Community market were to independent customers in the Community. Consequently, the export price was established by reference to the prices actually paid or payable.
3.5.3. Comparison
(89) Allowances for differences in transport, insurance, handling charges, packing costs, and credit have been granted where applicable and justified.
(90) The company also claimed an allowance for credit costs relating to sales on the domestic market. However, these sales were made on an open account basis. In the absence of evidence that credit costs constituted a factor taken into account in the determination of prices no adjustment for credit costs could be granted, in accordance with Article 2(10)(g) of the basic Regulation.
(91) In addition, the company claimed an allowance for alleged differences in the level of trade to take account of sales expenses on the domestic market that were not incurred on the export market. However, as sales on both markets were in fact made at the same level, i.e. to distributors, the claim is rejected. Moreover, no evidence was provided showing that such difference in sales expenses would have affected price comparability.
3.5.4. Dumping margin
(92) In line with the provisions of Article 2(11) of the basic Regulation, the comparison was made between a weighted average normal value and a weighted average export price.
(93) This comparison shows the existence of dumping for the cooperating company. The provisional dumping margin expressed as a percentage of the cif import price at the Community border is:
Yeong Hwa Metal Co. Ltd: 11,8 %
(94) The methodology followed to determine a provisional residual dumping margin for Korea was the one explained under point 3.1.5, for countries where the level of cooperation was low. On this basis, the residual dumping margin is 24,6 %.
3.6. Thailand
(95) Three companies replied to the questionnaire for exporting producers.
(96) For one of the Thai companies it was found that the information provided regarding sales volume and cost of production for malleable fittings sold in the domestic market contained serious deficiencies, which made it impossible to obtain reasonably accurate findings and to calculate a provisional dumping margin on the basis on the reported data. It was therefore decided to partially use facts available in accordance with Article 18 of the basic Regulation. In the absence of any more appropriate alternative, the normal values of the other two exporting producers were used where possible. For those export sales for which no normal value was available the margin of the highest dumped transaction was applied in order not to reward this deficient cooperation.
3.6.1. Normal value
(97) The procedures and methodologies followed by the Commission to assess the normal value of products originating in Thailand were the same as those explained under point 3.1.1, except where, according to Article 18, information available was used for determining the dumping margin.
(98) On the basis of the method referred to above, it was partially possible to establish normal value on the basis of the domestic price of comparable types in accordance with Article 2(2) of the basic Regulation.
(99) For all other types of the product concerned sold for export to the Community by the two cooperating companies for which a dumping calculation was made, normal value was calculated, in accordance with Article 2(3) of the basic Regulation, on the basis of constructed value.
(100) This was done by adding the companies' own domestic SG & A expenses and domestic profit margin to the manufacturing cost of the exported types, in accordance with Article 2(6) of the basic Regulation.
3.6.2. Export price
(101) The procedures and methodologies followed by the Commission to assess the export price of products originating in Thailand were the same as those explained under point 3.1.2.
(102) All sales of malleable fittings by the two companies on the Community market were to independent importers in the Community. Consequently, the export price was established by reference to the prices actually paid or payable.
3.6.3. Comparison
(103) Allowances for differences in transport, packing, credit costs and commissions have been granted where applicable and justified.
(104) One of the cooperating companies claimed an allowance for import charges. The company did not demonstrate the relation between the import duty paid and the so-called tax compensation measures to help exporters. Consequently, the claim for the adjustment was rejected.
(105) One of the cooperating companies claimed an adjustment for physical differences. This claim included in fact three different requests: (i) a claim for an adjustment for level of trade on the basis that price comparability was affected by the differences which arise in OEM (original equipment manufacturer) sales; (ii) a claim for physical differences of the sockets (plain, beaded, or banded); (iii) finally, an adjustment of differences in quantities. However, none of the three claims was sufficiently demonstrated. During the on-the-spot investigation it was found that no distinction was made between different types of customers and sockets, or quantities when deciding on prices. Price comparability was clearly not affected by any of the three alleged differences. Consequently, given that there was no evidence of the claimed differences, no adjustment was granted in this respect.
(106) The same company claimed an allowance for the credit cost of sales on the domestic market. The allowance claimed was made on the basis of an open account without evidence of an agreement between supplier and buyer of the product at the time of sale. This claim was rejected on the ground that, in accordance with Article 2(10)(g) of the basic Regulation, an adjustment can only be given for the number of days agreed at the time of the sale, as only such an expense related to that number of days agreed at the date of sale can be considered to affect price comparability.
(107) One of the cooperating companies claimed an allowance for currency conversion based on an alleged difference in exchange rates between the sales order and the actual invoice date. This claim was rejected on the grounds that, in accordance with Article 2(10)(j) of the basic Regulation, the alleged difference in exchange rates was not confirmed by the information received during the on-the-spot investigation, no sustained movement in exchange rates existed during the investigation period and the sales order did not conclude the sales agreement and had no binding effect.
3.6.4. Dumping margin
(108) As provided by Article 2(11) of the basic Regulation, the comparison was made on the basis of a weighted average normal value to a weighted average export price for all companies.
(109) The comparison shows the existence of dumping in respect of all producers fully cooperated with the Commission. The provisional dumping margins expressed as a percentage of the cif import price at the Community border are the following:
(110) BIS Pipe Fitting Industry Company Ltd, Samutsakorn: 25,8 %
Siam Fittings Co. Ltd, Samutsakorn: 12,4 %
Thai Malleable Iron & Steel Co. Ltd, Bangkok: 25,8 %
(111) For any non-cooperating companies, the provisional residual dumping margin was assessed on the basis of the margin of the company with the highest dumping margin. Expressed as a percentage of the cif import price at the Community border, the margin is 25,8 %
3.7. Croatia and Yugoslavia
(112) In view of the provisional finding of de minimis market shares for the imports of the product concerned originating in both Croatia and Yugoslavia, it was provisionally decided not to calculate a dumping margin for imports of the product concerned from these countries.
B. NON-MARKET ECONOMY COUNTRIES
3.8. China
3.8.1. Analysis of market economy status
(113) Three Chinese companies requested market economy status (hereinafter "MES"), pursuant to Article 2(7)(c) of the basic Regulation.
(114) The claim made by one company had to be rejected on the grounds that it submitted in its application that its accounts were not audited. Consequently, the company did not comply with the conditions set out in the second indent of Article 2(7)(c) of the basic Regulation. Therefore, an on-the-spot verification was also deemed unnecessary.
(115) The Commission sought all information deemed necessary and verified all information submitted in the MES applications, on-the-spot, at the premises of the remaining two companies.
(116) For one of these companies it was established that there was significant State interference in the form of tax rebates and in the setting of the salaries for workers. Furthermore, it was found that there was no clear set of basic accounting records and that the production costs and the financial situation of the company were subject to significant distortion.
(117) For the other company, the Commission found that its accounts were not independently audited and that the methods used were not in accordance with international accounting standards.
(118) Consequently, the conditions set out in Article 2(7)(c) of the basic Regulation were not met by any of the other two companies requesting MES. All three companies were informed that their MES applications had to be rejected.
3.8.2. Choice of analogue country
(119) In the absence of any companies qualifying for MES, it was necessary to compare the export prices of the Chinese exporting producers with a normal value established for an appropriate market economy country, pursuant to Article 2(7)(a) of the basic Regulation.
(120) Poland was suggested by the complainant and proposed by the Commission in the Notice of Initiation. One Polish producer did subsequently cooperate and submitted a reply to the questionnaire. However, this response was found to be deficient in a number of crucial respects, particularly regarding domestic sales and production costs. Consequently, the Commission did not consider it appropriate to use Poland as an analogue country in this investigation.
(121) In spite of the effort made by the Commission, no other producer in a country not concerned by the present investigation was ready to cooperate. In the absence of cooperation, the Commission had no other option than to select a country included in the complaint.
(122) The Commission finally decided that Thailand was the most appropriate market economy third country for the purpose of establishing normal value, in accordance with Article 2(7) of the basic Regulation, in view of the volume of domestic sales made by Thai producers as compared to imports into the Community from China and the existence of several domestic producers, which allowed for reasonable profits for this type of product.
3.8.3. Individual treatment
(123) All three cooperating companies requested individual treatment.
(124) In accordance with Article 9(5) of the basic Regulation, it is the Community institution's policy to calculate a single country-wide duty for non-market economy countries, except in those cases where companies can demonstrate a degree of legal and factual independence so that the risk of circumvention of the country-wide duty is removed. To this end, detailed questions were included in the MES claim form sent to the parties concerned upon the initiation of the proceeding.
(125) For one of the companies, an examination of the information provided with regard to the application for individual treatment appeared to indicate that the company was eligible for such individual treatment. However, the questionnaire reply submitted by this company was substantially incomplete, notably regarding the reporting of export sales. Consequently, it has been provisionally decided not to grant individual treatment to this company. This issue will nevertheless be further examined until the definitive stage of the investigation.
(126) With regard to the remaining two cooperating companies, there was clear interference from the State authorities regarding the determination of export prices and quantities.
(127) Consequently, no individual treatment could be granted to any of the three companies.
3.8.4. Normal value
(128) Normal value for the Chinese exporting producers was calculated on the basis of the normal values established for the cooperating Thai companies by using the methodology described in point 3.1.1. In this context, the types sold on the Thai domestic market which were found to be comparable to the Chinese types exported to the Community were used.
3.8.5. Export price
(129) The procedures and methodologies followed by the Commission in assessing the export price of products originating in China were those described in point 3.1.2. For the cooperating exporting producers, the export price was established by reference to the prices paid or payable. Information available from Eurostat was used to account for exports made by non-cooperating parties.
3.8.6. Comparison
(130) Where applicable, adjustments were made to the export price to take account of differences relating to transport, insurance, handling charges and packing.
(131) As regards normal value, all allowances granted to the Thai exporting producers and relevant in light of the exports made by the exporting producers were also deducted in the case of China.
3.8.7. Dumping margin
(132) The provisional dumping margin for China, expressed as a percentage of the cif import price at the Community border is 49,4 %.
4. INJURY
4.1. Community industry
(133) The complainant Community producers account for 100 % of the Community production of malleable fittings and, therefore, constitute the Community industry within the meaning of Article 4(1) and Article 5(4) of the basic Regulation.
(134) One interested party claimed that one producer should not be considered as belonging to the Community industry on the grounds that it imported the product concerned from one of the countries concerned, namely from China. However, this allegation was neither substantiated nor has it been confirmed by the investigation. Furthermore, it was claimed by some interested parties that certain Community producers imported the product concerned from other third countries. The investigation has shown, as regards one producer, that they indeed made such imports. However, these imports were minimal by comparison with the Community produced sales on the Community market. Therefore, this company in its core activity clearly remained a producer in the Community. With respect to the others, the allegations have not been confirmed.
(135) Therefore, these claims have been rejected.
4.2. Community consumption
(136) The apparent Community consumption has been established on the basis of the sales volume of the Community industry on the Community market plus the import volume into the Community of malleable fittings from the countries concerned and from all other third countries known to produce and export the product concerned into the Community. On this basis, consumption decreased by around 6 % between 1995 and the IP, from around 65000 tonnes to around 61000 tonnes, reaching the lowest level in 1996, a year in which the whole sector suffered from difficult market conditions.
4.3. Cumulative assessment of the effects of the imports concerned
(137) With respect to some of the countries concerned, it has been argued that the imports should not be assessed cumulatively with the other imports, taking into account the conditions set out in Article 3(4) of the basic Regulation. In this respect, the investigation has shown the following:
(138) As regards Croatia and Yugoslavia, it was provisionally found that the volume of imports originating in those countries represented in the IP 0,4 % and 0,3 % of the total Community consumption, respectively. In accordance with Article 3(4) of the basic Regulation, they are provisionally considered not to have contributed to any injury suffered by the Community industry and are, accordingly, excluded from the injury assessment.
(139) Furthermore, the Brazilian exporting producer argued that exports of malleable fittings from Brazil should not be cumulated with the rest of the countries concerned, in view of the different market behaviour and their difference in export prices. Similarly, the Czech exporting producer argued that exports from the Czech Republic should not be cumulated with those from the other countries concerned, on the grounds that the trade pattern was different to that of these other countries. Thai exporting producers also argued that exports from Thailand should not be assessed cumulatively with those from the other countries concerned, in view of their decreasing export volumes and of their comparatively higher export prices. Finally, Korean exporting producers claimed that exports from Korea should not be cumulated with those from the other countries concemed on the grounds of the specific technical characteristics of their products which they export only to the British market. In this respect, the following provisional conclusions have been reached.
4.3.1. Brazil
(140) The import volume from Brazil did not follow a stable trend. In this respect, however, imports from some of the other countries concerned followed a similar pattern. As to Brazilian import volumes, in absolute terrrts they were always significant, whereas their market share remained fairly stable at around 7 to 8 % during the whole IIP. In terms of prices, they followed an unsteady trend during the IIP. However, between 1996 and the IP, they almost continually decreased. Finally, a substantial undercutting of the Community industry's prices has been established as regards Brazilian imports. For these reasons, it is provisionally considered appropriate to cumulatively assess imports from Brazil with those originating in the other countries concerned.
4.3.2. The Czech Republic
(141) Czech imports increased both in absolute and in relative terms during the IIP. In particular, import volumes increased by 123 %, while their market share rose by around 4 percentage points from around 3 % to around 7 %. Concerning the prices, they were rather stable during the IIP and significantly undercut the Community industry's prices in the IP. For these reasons, it is provisionally considered appropriate to cumulatively assess imports from the Czech Republic with those originating in the other countries concerned.
4.3.3. Thailand
(142) As regards Thailand, the overall development of the import volumes is not different from those of some other countries concerned, whose evolution similarly followed a unsteady trend. As regards prices, they increased between 1995 and the IP. Nevertheless, a significant undercutting of the Community industry prices has been established. For these reasons it is provisionally considered appropriate to cumulatively assess imports from Thailand with those originating in the other countries concerned.
4.3.4. The Republic of Korea
(143) With respect to the request of decumulation put forward by the Korean exporting producer on the grounds of the specific technical characteristics of the product manufactured by them and exported to the Community market, namely to one Member State, reference is made to the conclusions set out above concerning the like-product issue. Consequently, on the basis of the fact that the malleable fittings manufactured by the Korean exporting producers and sold in the said Member State have been found to be alike to the malleable fittings produced in that Member State and in the rest of the Community, it is provisionally considered appropriate to cumulatively assess imports from Korea with those originating in the other countries concerned.
(144) In conclusion, the investigation has shown that a number of differences exist between the level and evolution of imports and their respective prices. However, the conditions of cumulation as set out in Article 3(4) of the basic Regulation are met since the dumping margin are above the de minimis level and volume of imports under consideration are not negligible. As concerns the conditions of competition between the imported products and the imported products and the like Community product, these were found to be comparable since all imports concerned have been made, during the IP, in significant quantities resulting in significant market shares and have been made at prices, during the same period, significantly undercutting the prices of the Community industry. Moreover, both the Community product and the product imported from the countries concerned have been found to have common or similar channels of distribution. As a consequence, it is provisionally considered appropriate to cumulatively assess the imports from the countries concerned, with the exception of Croatia and Yugoslavia on the grounds of their negligible imports.
4.4. Volume and market shares of the imports concerned
4.4.1. Volume of the imports concerned
(145) According to Eurostat and the replies to the questionnaires obtained from the cooperating exporting producers, the import volume of malleable fittings originating in the countries concerned increased by around 32 % between 1995 and the IP, from around 13100 to around 17500 tonnes. More specifically, after a decline between 1995 and 1996, which occurred in line with the decline of the Community consumption in that year, imports from the countries concerned increased steadily. Between 1996 and the IP, the import volume increased by around 45 %, from around 12000 to around 17500 tonnes.
4.4.2. Market share
(146) The market share of the imports from the countries concerned increased continuously between 1995 and the IP, from around 20 % to around 29 %.
4.5. Prices of the imports concerned
4.5.1. Price evolution
(147) The weighted average import price of the countries concerned decreased by around 5 % between 1995 and the IP, from ECU 1,88 to ECU 1,78 per kilogram. More specifically, prices went up significantly between 1995 and 1996, in line with the general price increase on the market, followed also by the Communisy industry and the other third countries. Between 1996 and the IP the price decrease was then very marked and amounted to 10 %, from ECU 1,96 to ECU 1,78 per kilogram.
4.5.2. Price undercutting
(148) It was further examined whether the exporting producers of the countries concerned undercut the prices of the Community industry during the IP. For this purpose, the exporting producers' prices of malleable fittings have been duly adjusted to a cif and duty paid level, whereas the Community producers' prices have been adjusted to an ex-works level. In this respect, it was found that both the Community industry and the exporting producers from the countries concerned generally sold to the same categories of customers, e.g. traders and distributors, sometimes even to the same companies concerned. These categories of customers also acted as importers.
(149) For each type of malleable fittings, as defined in recital 10, the weighted average ex-works prices of the Community producers have been compared to the weighted average export prices of each exporting producer concerned. On this basis, the undercutting margins found per country, expressed as a percentage of the Community industry prices, are all significantly above 20 %.
4.6. Situation of the Community industry
4.6.1. Production
(150) The Community industry's production of malleable fittings decreased by around 10 % between 1995 and the IP, i.e. from around 54600 to around 49300 tonnes. The decrease of the production was particularly strong from 1995 to 1996 for two main reasons: firstly, a plant manufacturing malleable fittings in Germany had to be closed and, secondly, a contraction of consumption had taken place on the Community market. Furthermore, while the Community industry increased its production between 1996 and the IP by around 6 %, in an attempt to reduce its fixed costs, it should be noted that this resulted in increased stocks and not in increased sales, and this even though Community consumption expanded again as from 1996.
4.6.2. Production capacity
(151) The production capacity of the Community industry decreased by 14 % between 1995 and the IP, from 85000 to 73000 tonnes. This development should be seen in the light of the fact that in 1996 a production plant in Germany ceased its activity, as mentioned above.
4.6.3. Capacity utilisation
(152) Capacity utilisation increased from 64 % in 1995 to 67 % in the IP.
4.6.4. Sales volume
(153) The sales volume of the Community industry decreased from around 45500 tonnes in 1995 to around 37700 tonnes in the IP, i.e. by around 17 %. It should be pointed out that the Community industry's sales decreased in a time period during which the market contracted, while the countries concerned were able to expand their sales volume by around 32 %.
4.6.5. Market share
(154) The Community industry's share on the Community market decreased from 70 % in 1995 to around 62 % in the IP, i.e. by around 8 percentage points. This downward trend started after 1996, in which year the Community industry's market shares had reached a peak of around 71 %.
4.6.6. Sales prices
(155) The investigation has shown that the Community producers' average sales price rose from ECU 3,60 per kilogram in 1995 to ECU 3,88 per kilogram in the IP, i.e. a rise of around 8 %. This rise occurred in two phases, one between 1995 and 1996 and the second one between 1997 and 1998. While the prices of all the economic operators on the market (namely the Community industry, the countries concerned and other third countries), increased in the first phase, the second price increase was undertaken only by the Community industry and the other third countries. As regards the countries concerned, they followed the opposite trend, decreasing their sales prices by around 5 % in the mentioned period between 1997 and 1998.
4.6.7. Stocks
(156) The closing stocks of the Community industry increased from around 16300 tonnes a in 1995 to around 17400 tonnes in the IP, i.e. by around 6 %. The rise of the stock volume has been particularly strong as from 1996, in line with the increase of the Community industry's production and decreasing sales volume.
4.6.8. Profitability
(157) The profitability of the Community industry, expressed as a percentage of net sales, decreased by 2,3 percentage points between 1996 and the IP, from 1,4 % to - 0,9 %. When taking 1995 as a starting point, it developed from - 2,2 % to - 0,9 %. However, the year 1995 and the negative profitability level found on average for the Community industry reflect costs associated with the plant closure which occurred in 1995, as mentioned above. Moreover, the year 1995 was marked by restructuring efforts of two producers in particular, with the aim of production rationalisation and of investments required to implement the Community's environmental legislation.
4.6.9. Employment
(158) Employment in the Community industry decreased from 2532 employees in 1995 to 2370 employees in the IP, a decrease of around 6 %. This decline should be seen in the light of the attempts undertaken by the Community industry to restructure and reduce its costs. In fact, the investigation has shown that the production process of malleable fittings is highly labour intensive.
4.6.10. Investments
(159) The Community industry decreased its investment from around ECU 20,4 million in 1995 to around ECU 17 million in the IP, i.e. by around 16 %. Within this period, there are important differences. For instance, between 1998 and the IP, investments increased, from ECU 12,7 million to ECU 17 million. It is worth noting that the level of investments is rather significant during the whole IIP, in particular in 1995, coinciding with the restructuring efforts realised that year, as mentioned above. This shows that the Community industry is still viable and is not ready to abandon this segment of production, in particular as these investments were mostly destined to rationalise the production process.
4.7. Conclusion on injury
(160) The examination of the above mentioned injury factors shows that the situation of the Community industry deteriorated. In particular, the Community industry experienced a decline in production, production capacity, sales and market share. Moreover, the Community industry suffered a significant loss of employment and a decline in investments, as well as an increase of stocks. As to the capacity utilisation, its increase depended on the reduced production capacity.
(161) It is therefore provisionally concluded that the Community industry suffered material injury within the meaning of Article 4(1) of the basic Regulation.
5. CAUSATION
(162) According to Article 3(6) and (7) of the basic Regulation, it was examined whether the material injury suffered by the Community industry has been caused by the dumped imports and whether other factors might have caused or contributed to that injury, in order not to attribute possible injury caused by other factors to the dumped imports.
5.1. Effect of the dumped imports
(163) The Commission found that the trend of imports from the exporting countries concerned and their increasing market share coincided with the deterioration of the Community industry's situation. At a time when Community consumption decreased by around 6 %, the market share of the imports concerned increased by around 9 percentage points, from around 20 % in 1995 to around 29 % in the IP, while the market share of the Community industry decreased from 70 % to around 62 %. The decrease of the Community industry's market share is almost symmetrical to the increase of the market shares of the imports from the countries concerned, in particular as from 1996.
(164) Moreover, as regards the prices of the dumped imports, significant margins of undercutting were found. The market for malleable fittings is highly price sensitive, the price level being the crucial element of choice considered by the users, as has been confirmed by the cooperating importers and users.
(165) In these circumstances, the price pressure exerted by the imports concerned had a major impact on the sales volume and market share of the Community industry. Since the Community industry could not follow the downward trend of the prices of the imports concerned, its sales volume significantly decreased and it suffered financial losses. The significantly smaller sales volumes also had repercussions on the production level as well as on the stock volume, leading to an increase of fixed costs. This in turn had a negative impact on the overall profitability of the Community industry.
5.2. Effect of other factors
(166) It was also considered whether factors other than the dumped imports from the countries concerned might have caused, or contributed to, the injury suffered by the Community industry.
5.2.1. Third countries' imports
(167) Some interested parties, based on Eurostat information, alleged that any injury suffered by the Community industry had been caused by imports from third countries not covered by the proceeding, in particular Turkey, Bulgaria and Poland.
(168) According to this information, import volumes of malleable fittings from all other third countries decreased from around 6200 tonnes in 1995 to around 5300 in the IP, i.e. by around 14 %, while market shares were relatively stable throughout the period with a slightly decreasing trend, representing around 10 % in 1995 and around 9 % in the IP. As regards the weighted average prices of imports from other third countries, as reported by Eurostat, they increased from ECU 1,93 per kilogram to ECU 2,22 per kilogram. It is to be noted that they were significantly higher than the weighted average prices of the countries concerned during the whole IIP.
(169) When analysing the imports from individual countries, it appears, firstly, that imports from Turkey were stable at almost negligible levels during the entire IIP. As regards import volumes, they were 553 tonnes in 1995 and 632 tonnes in the IP, while market shares were stable at around 1 % during the whole IIP. Concerning the unit price, according to Eurostat it was higher than the imports concerned throughout the whole IIP.
(170) As concerns Bulgaria, imports increased both in absolute and in relative terms: between 1995 and the IP, the import volume rose from 43 tonnes to 1109 tonnes and market shares increased from 0,1 % to 1,8 %. thus remaining relatively small. As to the unit price, it increased during the IIP being higher, in the IP, than the weighted average prices of exports from the countries concerned
(171) Concerning imports from Poland, their market share remained relatively stable during the IIP at around 4 to 5 %, although increasing in absolute terms from around 2500 tonnes in 1995 to around 3000 tonnes in the IP. However, in the IP, the unit price was significantly higher than the weighted average prices of the countries concerned
(172) In addition, some interested parties claimed on the basis of Eurostat information that any injury suffered by the Community industry had been caused in particular by imports of malleable fittings from the United States of America However, since the investigation has shown that the American imports consist of products other than those concerned, it is concluded that imports from the United States of America could not have caused any material injury to the Community industry.
(173) Furthermore, there was no indication that the imports from third countries not subject to the proceeding have been dumped.
5.2.2. Other points raised
(174) Some interested parties claimed that the injury suffered by the Community industry was the result of its own imports from one country concerned and from other third countries, for resale on the Community market. As mentioned in recital 127, the investigation has shown that one Community producer did import the product concerned from one third country. However, since these volumes were very low and represented only a negligible pan of its sales in the Community, no significant influence on the situation of that Community producer could have resulted from these imports.
(175) In addition, certain interested parties alleged that the main cause of any injury suffered by the Community industry was the substitution of fittings made of materials such as copper and plastic for those made of malleable cast iron. Certain interested parties further claimed that one of the factors that could have caused injury to the Community industry was the slowdown of the construction sector and the ensuing diminution of the Community consumption of the product concerned. In this respect, the investigation has shown that a significant substitution of cast iron by different materials, such as copper and plastic, took place in the 1980s. Afterwards, the substitution effect slowed down and the utilisation of malleable fittings remained stable, in particular for those uses where the physical durability, resistance as well as a specific tensile strength and elongation are requirements.
(176) These general findings are supported by the development of Community consumption established in the investigation. Indeed, even if consumption decreased by 6 % during the IIP, this decline is not such as to have contributed in any significant way to the material injury suffered by the Community industry. On the contrary, in this situation, even taking into account a slowdown of the construction industry, the countries concerned were able to significantly increase their import volumes into the Community by around 32 %, further penalising the Community industry, whose sales in turn decreased by around 17 %.
5.3. Conclusion on causation
(177) It is therefore provisionally concluded that the dumped imports originating in Brazil, the Czech Republic, Japan, China, Korea and Thailand have caused material injury to the Community industry. Any other factors that may have contributed to the injurious situation of the Community industry, in particular imports from third countries, are such that they cannot be considered to break the causal link between the dumping and the material injury found in light of the strong increase in the imports poncerned made at particularly low prices.
6. COMMUNITY INTEREST
6.1. General considerations
(178) In accordance with Article 21 of the basic Regulation, the Commission examined whether the Community interest calls for the imposition of anti-dumping measures, giving special consideration to the need to eliminate the trade-distorting effects of injurious dumping and to restore effective competition. The determination of the Community interest was based on an appreciation of all the various interests involved, i.e. those of the Community industry, the importers and traders as well as the users of the product concerned.
(179) In order to assess the impact of the imposition or non-imposition of the anti-dumping measures, the Commission requested information from all interested parties mentioned above. Questionnaires were sent to 52 importers. Seventeen importers replied and data provided by 13 of them were verified. Moreover, 11 associations of users deemed to be concerned by the proceeding were advised of the opening of the investigation. No replies or submissions were received from these associations. With respect to individual users of malleable fittings, out of the 34 to which questionnaires were sent, two replied and the data provided were verified.
6.2. Community industry
(180) The Community industry has been affected by the low-priced imports of malleable fittings from the countries concerned during the IIP. Not to take anti-dumping measures with respect to the dumped imports concerned would aggravate the already difficult situation of the Community industry, in particular in consideration of the downward sales trend. The production of malleable fittings is, in fact, characterised by significant fixed costs (e.g. warehousing, depreciation, etc.), which renders reaching a certain level of production and, consequently sales, indispensable. In view of the steady increase of the imports concerned and the corresponding decrease of the Community industry's sales, it appears that if anti-dumping measures should not be imposed, it would be difficult for the Community industry to recover its lost sales and reach the level of profitability needed.
6.3. Unrelated importers/traders
(181) With regard to the unrelated importers/traders of the product concerned, given the good cooperation in certain cases it was possible to isolate the profitability for malleable fittings, this being on average around 7 % during the IP. Moreover, it was found that the mark-up charged on the sales price varies significantly depending on the purchase price, the mark-up being higher when the latter is low and vice versa.
(182) It appears, therefore, that the unrelated importers/traders of the product concerned might pass on to their clients a part of any duties paid. In addition, it has to be borne in mind that some traders importing from the countries concerned also purchase malleable fittings from the Community producers and other third countries, thus having available alternative sources of supply. Moreover, the investigation has shown that although some traders/importers deal exclusively with malleable fittings, these are in many cases supplied from a variety of origins, among which the countries concerned are only a part. It has been found, furthermore, that other traders/importers deal with a far larger product range.
(183) Given the above, it is provisionally concluded that the likely impact of anti-dumping measures on the importers/traders of the product concerned would not be such as to put their economic activity at serious risk.
6.4. Users
(184) The most common users of the product concerned are the gas and water distributors as well as plumbers, installers of heating and installers of sanitary fittings. Minor uses are in industrial services and engineering. The low level of cooperation (only two replies) seems to indicate that the impact of the imposition or non-imposition of anti-dumping measures on the users of malleable fittings would be minimal. This minor impact has been confirmed by the investigation, which has shown that the product under consideration represents a negligible part of the total costs sustained by the users. For instance, in the gas distribution market, in particular in domestic installations, the main cost item largely relates to the service, whereas the fittings used for the installation represent approximately 1 % of the total costs sustained.
(185) Given the limited effect on the users described above, it can be provisionally concluded that anti-dumping measures will not have any significant negative influence on their situation. On the contrary, should the Community industry disappear, users would be deprived of an important source of supply, which ensures good service and delivery time.
6.5. Conclusion on Community interest
(186) Given the above reasons, it is provisionally considered that there are no compelling reasons against the imposition of anti-dumping duties.
7. PROVISIONAL ANTI-DUMPING MEASURES
7.1. Injury elimination level
(187) In view of the conclusions reached with regard to dumping, injury, causation and Community interest, provisional measures should be taken in order to prevent further injury being caused to the Community industry by the dumped imports.
(188) For establishing the level of duty, account has been taken of the dumping margins found and of the amount of the duty necessary to eliminate the injury suffered by the Community industry. In order to establish the level of duty required to remove injury caused by dumping, the price underselling has been calculated. The necessary price increase was determined on the basis of a comparison of the weighted average export price per type, as established for the undercutting calculations, with the non-injurious price of the different types sold by the Community industry on the Community market. The non-injurious price has been obtained by adding to the sales price of the Community industry its average actual profit shortfall and by further adding a profit margin of 7 %. This profit margin seems appropriate in order to allow the Community industry to reach a level of profit which it would be likely to obtain in the absence of dumping. Any difference resulting from this comparison was then expressed as a percentage of the total cif import value resulting in the injury threshold.
7.2. Provisional measures
(189) In the light of the foregoing, it is considered that a provisional anti-dumping duty should be imposed at the level of the dumping margins found, which were in all cases lower than the injury threshold, in accordance with Article 7(2) of the basic Regulation.
(190) As regards the residual duty to be applied to the non-cooperating exporting producers, in those cases where the level of cooperation for specific exporting countries has been high, the residual duty was fixed at the highest anti-dumping duty found for the cooperating exporting producers. In those cases where the level of cooperation has been low for specific exporting countries, the residual duty was fixed on the basis of the highest dumping margin or injury threshold found for a representative range of exported types of the cooperating exporting producers, whichever is the lower.
(191) On the basis of the above, the provisional duty rates, expressed as a percentage of the cif Community border price, customs duty unpaid, are as follows:
7.2.1. Countries concerned
TABLE
7.2.2. Croatia and Yugoslavia
(192) As the market shares found were de minimis it is provisionally not considered appropriate to impose any anti-dumping duty on imports of malleable fittings originating in Croatia and Yugoslavia at this stage of the proceeding. However, the Commission will continue to investigate the matter in order to arrive at a definitive determination.
7.2.3. Individual duty rates
(193) The individual company anti-dumping duty rates specified in this Regulation were established on the basis of the findings of the present investigation. Therefore, they reflect the situation found during that investigation with respect to these companies. These duty rates (as opposed to the country-wide duty applicable to "all other companies") are thus exclusively applicable to imports of products originating in the country concerned and produced by the companies and thus by the specific legal entities mentioned. Imported products produced by any other company not specifically mentioned in the operative part of this Regulation with its name and address, including entities related to those specifically mentioned, cannot benefit from these rates and shall be subject to the duty rate applicable to "all other companies".
(194) Any claim requesting the application of these individual company anti-dumping 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(5) forthwith with all relevant information, in particular any modification in the company's activities linked to production, domestic and export sales associated with e.g. that name change or that change in the production and sales entities. The Commission, if appropriate, will, after consultation of the Advisory Committee, amend the Regulation accordingly by updating the list of companies benefiting from individual, duty rates.
7.3. Undertaking
(195) The exporting producer in the Czech Republic has offered a price undertaking in accordance with Article 8(1) of the basic Regulation. The Commission considers that the undertaking offered by the exporting producer concerned can be accepted since it eliminates the injurious effect of the dumping. Furthermore, the regular and detailed reports which the company undertook to provide to the Commission will allow an effective monitoring.
(196) In order to ensure the effective respect and monitoring of the undertaking, when the request for release for free circulation pursuant to the undertaking is presented, exemption from the duty is conditional upon presentation to the relevant Member States' customs services of a valid undertaking invoice issued by the exporting producer from whom the undertaking is accepted and containing the information listed in the Annex. Where no such invoice is presented or when it does correspond to the product presented to the customs services, the appropriate rate of antidumping duty will be payable in order to avoid circumvention of the undertaking.
(197) In the event of a breach or withdrawal of the undertaking an anti-dumping duty may be imposed, pursuant to Articles 8(9) and 10 of the basic Regulation.
(198) The investigation of dumping, injury and Community interest will be completed, notwithstanding the acceptance of undertakings in the course of the investigation, in accordance with Article 8(6) of the basic Regulation.
8. FINAL PROVISION
(199) In the interest of sound administration, a period should be fixed within which the interested parties may make their views known in writing and request a hearing. Furthermore, it should be stated that the findings made for the purposes of this Regulation are provisional and may have to be reconsidered for the purposes of any definitive duty,
HAS ADOPTED THIS REGULATION:
Article 1
1. A provisional anti-dumping duty is hereby imposed on imports of threaded malleable cast iron tube or pipe fittings, falling within CN code ex73071910 (TARIC code 7307 19 10*10) and originating in Brazil, the Czech Republic, Japan, the People's Republic of China, the Republic of Korea and Thailand.
2. The rate of the provisional anti-dumping duty applicable to the net, free-at-Community-frontier price, before duty, shall be as follows for products originating in:
TABLE
The above rates shall not apply to the products manufactured by the companies listed below, which shall be subject to the following anti-dumping duty rates:
TABLE
3. Notwithstanding paragraph 1, the provisional duty shall not apply to imports of the product concerned manufactured and directly exported (i.e. shipped and invoiced) to the first independent customer in the Community acting as an importer by the company named in Article 2(1) when such imports are in conformity with Article 2(2).
4. Unless otherwise specified, the provisions in force concerning customs duties shall apply.
5. The release for free circulation in the Community of the product referred to in paragraph 1 shall be subject to the provision of a security, equivalent to the amount of the provisional duty.
Article 2
1. The undertaking offered by the following company in connection with the anti-dumping proceeding concerning threaded malleable cast iron tube or pipe fittings, falling within CN code ex73071910 and originating in Brazil, the Czech Republic, Japan, the People's Republic of China, the Republic of Korea and Thailand is hereby accepted:
TABLE
2. When the request for release for free circulation pursuant to an undertaking is presented, exemption from the duty shall be conditional upon presentation to the relevant Member States' customs services of a valid undertaking invoice issued by the company mentioned in Article 2(1). The essential elements of the undertaking invoice are listed in the Annex to this Regulation. Imports accompanied by such an invoice shall be declared under the Taric additional code provided for in Article 2(1).
Exemption from the duty shall further be conditional on the goods declared and presented to customs corresponding precisely to the description on the undertaking invoice.
Article 3
1. The Parties referred to in Article 20(1) of Regulation (EC) No 384/96 may make their views known in writing and apply to be heard orally by the Commission within 30 days of the date of entry into force of this Regulation.
2. The parties referred to in Article 21(4) of Regulation (EC) No 384/96 may comment on the application of this Regulation within one month of the date of its entry into force.
Article 4
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall apply for a period of six months.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 February 2000. | [
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COMMISSION REGULATION (EC) No 1684/2005
of 14 October 2005
fixing the maximum aid for concentrated butter for the 344th special invitation to tender opened under the standing invitation to tender provided for in Regulation (EEC) No 429/90
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products (1), and in particular Article 10 thereof,
Whereas:
(1)
In accordance with Commission Regulation (EEC) No 429/90 of 20 February 1990 on the granting by invitation to tender of an aid for concentrated butter intended for direct consumption in the Community (2), the intervention agencies are opening a standing invitation to tender for the granting of aid for concentrated butter. Article 6 of that Regulation provides that in the light of the tenders received in response to each special invitation to tender, a maximum amount of aid is to be fixed for concentrated butter with a minimum fat content of 96 % or a decision is to be taken to make no award; the end-use security must be fixed accordingly.
(2)
In the light of the tenders received, the maximum aid should be fixed at the level specified below and the end-use security determined accordingly.
(3)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
For the 344th tender under the standing invitation to tender opened by Regulation (EEC) No 429/90 the maximum aid and the end-use security are fixed as follows:
-
maximum aid:
45,5 EUR/100 kg,
-
end-use security:
50 EUR/100 kg.
Article 2
This Regulation shall enter into force on 15 October 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 October 2005. | [
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Commission Directive 2002/4/EC
of 30 January 2002
on the registration of establishments keeping laying hens, covered by Council Directive 1999/74/EC
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 1999/74/EC of 19 July 1999 laying down minimum standards for the protection of laying hens(1), and in particular Article 7 thereof,
Whereas:
(1) Directive 1999/74/EC lays down specific requirements for the protection of laying hens in various systems of farming and allow the Member States to choose the most appropriate system or systems.
(2) Article 7 of Directive 1999/74/EC requires that every establishment covered by the scope of that Directive shall be registered by the competent authority of the Member State and given a distinguishing number, which will be the medium for tracing eggs placed on the market for human consumption.
(3) Council Regulation (EEC) No 1907/90 of 26 June 1990 on certain marketing standards for eggs(2), as last amended by Regulation (EC) No 5/2001(3), makes it compulsory to stamp eggs with a code designating the producer's distinguishing number and permitting the farming method to be identified.
(4) The farming methods are defined by Commission Regulation (EEC) No 1274/91 of 15 May 1991 introducing detailed rules for implementing Regulation (EEC) No 1907/90 on certain marketing standards for eggs(4), as last amended by Regulation (EC) No 1651/2001(5), and also by 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(6), as last amended by Commission Regulation (EC) No 2491/2001(7), as far as organic production is concerned.
(5) A registration of the establishments under distinguishing numbers is a condition for tracing eggs placed on the market for human consumption.
(6) The measures provided for in this Directive are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. Member States shall:
(a) establish a system for registering every production site (hereafter: establishment) covered by the scope of Directive 1999/74/EC, allocating a distinguishing number to it, in conformity with the Annex to this Directive;
(b) ensure that for each such establishment at least the information set out in point 1 of the Annex is supplied to the competent authority of the Member State, by a date determined by the Member State; this date shall be such as to allow sufficient time for registration of those establishments in accordance with point (c);
(c) ensure that each establishment for which the required information is supplied by the date determined pursuant to point (b) is registered and allocated a distinguishing number by 31 May 2003.
2. Member States shall provide that, from 1 June 2003
(a) no establishment for which the information required pursuant to paragraph 1(b) has not been supplied by the date determined there may continue to be used; and
(b) no new establishment is brought into use prior to completion of registration and receipt of the distinguishing number.
3. Member States shall ensure that the register of establishments established pursuant to paragraph 1 is accessible to the competent authority of the Member State for the purpose of tracing eggs put on the market for human consumption.
4. Member States shall ensure that changes concerning registered data are notified to the competent authority without delay and that the register is updated immediately when such information is received.
Article 2
Member States shall bring into force the laws, regulations and administrative provisions to comply with this Directive by 31 March 2003. They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Article 3
This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.
Article 4
This Directive is addressed to the Member States.
Done at Brussels, 30 January 2002. | [
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COMMISSION REGULATION (EC) No 1860/2006
of 15 December 2006
amending Regulation (EEC) No 1859/82 concerning the selection of returning holdings for the purpose of determining incomes of agricultural holdings
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 79/65/EEC of 15 June 1965 setting up a network for the collection of accountancy data on the incomes and business operation of agricultural holdings in the European Economic Community (1), and in particular Articles 4(4) and 6(2) thereof,
Whereas:
(1)
Annex I to Commission Regulation (EEC) No 1859/82 (2) fixes the number of returning holdings per division.
(2)
The number of returning holdings per division in Sweden should be adjusted so that the sample may better represent all the types of farm that are present in the field of observation.
(3)
Regulation (EEC) No 1859/82 should therefore be amended accordingly.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Community Committee for the Farm Accountancy Data Network,
HAS ADOPTED THIS REGULATION:
Article 1
Annex I to Regulation (EEC) No 1859/82 is amended in accordance with the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Union.
It shall apply from the 2007 accounting year.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 December 2006. | [
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COMMISSION REGULATION (EC) No 2594/95 of 7 November 1995 opening and administering a Community tariff quota for certain poultrymeat products originating in Bulgaria for the period from 1 July to 31 December 1995 in accordance with Council Regulation (EC) No 2179/95
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2179/95 of 8 August 1995 providing for the adjustment, as an autonomous and transitional measure, of certain agricultural concessions provided for in the Europe Agreements and amending Regulation (EC) No 3379/94 opening and administering certain Community tariff quotas in 1995 for certain agricultural products and for beer, to take account of the Agreement on Agriculture concluded during the Uruguay Round Multilateral Trade Negotiations, and in particular Article 7 thereof (1),
Whereas Bulgaria has taken or will take as soon as possible, vis-à-vis the European Union, measures of comparable effect to those referred to in Article 7 (5) of Regulation (EC) No 2179/95;
Whereas, in accordance with Article 7 (10) of Regulation (EC) No 2179/95, the measures provided for in Article 7 (5) of that Regulation should therefore be applied;
Whereas, as a result, a tarfiff quota should be opened for poultrymeat products for the period from 1 July to 31 December 1995; whereas, provision should be made for applying a specific administration method;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for poultry meat and eggs,
HAS ADOPTED THIS REGULATION:
Article 1
For the period from 1 July to 31 December 1995 the import tariff quota shown in the Annex is hereby opened for products originating in Bulgaria under the conditions laid down in that Annex.
Article 2
1. In order to qualify for the quota shown in the Annex, the importer must present to the competent authorities of the importing Member State a declaration for release for free circulation comprising an application to this effect for the products concerned accompanied by the certificate referred to in Article 8 of Commission Regulation (EC) No 1559/94 (2).
If this declaration is accepted by the competent authorities of the Member State, those authorities shall inform the Commission of the relevant applications for withdrawals, broken down by quota.
2. The application for withdrawal together with indication of the date of acceptance of the declaration for release for free circulation shall be sent to the Commission without delay.
3. The withdrawals shall be granted by the Commission on the basis of the date of acceptance of declarations for release for free circulation by the competent authorities of the importing Member State, in so far as the available balance permits.
Any unused balance shall be returned as soon as possible to the corresponding quota quantity.
Where the quantities applied for exceed the available balance of the quota quantities the allocation shall be made in proportion to the applications. The Member States shall be informed as soon as possible by the Commission of the withdrawals made.
4. Each Member State shall ensure that importers of the products set out in the Annex have equal and continuous access to the quantities laid down therein as long as the residual balance of the quota quantities permits.
Article 3
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 1 July to 31 December 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 November 1995. | [
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COUNCIL REGULATION (EEC) No 3631/88 of 18 November 1988 temporarily suspending the autonomous Common Customs Tariff duties for certain products intended for the construction, maintenance and repair of aircraft
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 28 thereof,
Having regard to the proposal from the Commission,
Whereas production of the products referred to in this Regulation is at present inadequate or non-existent within the Community and producers are thus unable to meet the needs of user industries in the Community;
Whereas it is in the Community's interest to suspend the autonomous Common Customs Tariff duties for these products completely;
Whereas, taking account of the difficulties involved in accurately assessing the development of the economic situation in the sectors concerned in the near future, these suspension measures should be taken only temporarily, by fixing their period of validity by reference to the interests of Community production,
HAS ADOPTED THIS REGULATION:
Article 1 From 1 January to 31 December 1989, the autonomous Common Customs Tariff duties for the products listed in the Annex shall be totally suspended, provided that the said products are intended, on conditions to be determined by the competent authorities, for the construction, maintenance and repair of aircraft.
Article 2 This Regulation shall enter into force on 1 January 1989.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 November 1988. | [
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COMMISSION DECISION
of 14 June 2006
concerning certain transitional measures in relation to highly pathogenic avian influenza in poultry or other captive birds in the Community
(notified under document number C(2006) 2402)
(Text with EEA relevance)
(2006/416/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to Council Directive 2005/94/EC of 20 December 2005 on Community measures for the control of avian influenza and repealing Directive 92/40/EEC (1), and in particular Article 66(2) thereof,
Whereas:
(1)
Avian Influenza is a serious, highly contagious disease of poultry and other birds caused by different types of viruses included in the very large virus family called Influenzaviridae. Avian influenza viruses may also spread to mammals, including humans, usually following direct contact with infected birds. Current knowledge indicates that the health risks posed by the so-called low pathogenic avian influenza (LPAI) viruses - are inferior to the one posed by highly pathogenic avian influenza (HPAI) viruses, which originate from a mutation of certain LPAI viruses.
(2)
Community measures for the control of avian influenza caused by HPAI viruses were established by Council Directive 92/40/EEC of 19 May 1992 introducing Community measures for the control of avian influenza (2), in order to protect animal health and contribute to the development of the poultry sector.
(3)
The measures laid down in Directive 92/40/EEC have been fundamentally reviewed in the light of recent scientific knowledge on the risks of avian influenza for animal and public health, the development of new laboratory tests and vaccines and the lessons learnt during recent outbreaks of this disease in the Community as well as in third countries. Taking into account that review, Directive 92/40/EEC was repealed and replaced by Directive 2005/94/EC. Under Directive 2005/94/EC Member States have until 1 July 2007 to transpose its provisions into national law.
(4)
Due to the current worldwide situation in relation to avian influenza, it is necessary to lay down transitional measures to be applied on holdings where outbreaks of avian influenza caused by HPAI viruses are suspected or confirmed in poultry or other captive birds, pending the transposition of Directive 2005/94/EC by the Member States.
(5)
The transitional measures provided for in this Decision should enable the Member States to adopt disease control measures in a proportionate and flexible manner, taking into account the various levels of risk posed by the different virus strains, the likely social and economic impact of the measures in question on the agriculture sector and other sectors involved, while at the same time ensuring that the measures taken for each specific scenario are the most appropriate.
(6)
In the interests of consistency and clarity of Community legislation, the transitional measures to be provided for in this Decision should take account of the disease control measures provided for in Directive 2005/94/EC and the definitions laid down in that Directive apply to this Decision.
(7)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Subject matter and scope
1. This Decision lays down certain transitional measures to be applied in a Member State where outbreaks of avian influenza caused by highly pathogenic avian influenza (HPAI) viruses are suspected or confirmed in poultry or other captive birds.
2. Without prejudice to the measures to be applied on holdings, and in protection and surveillance zones in accordance with Directive 92/40/EEC the measures provided for in this Decision shall be applied by Member States that have not fully transposed the provisions of Directive 2005/94/EC concerned by this Decision.
Article 2
Notification
1. Member States shall ensure that the suspected presence and presence of HPAI are compulsorily and immediately notified to the competent authority.
2. Member States shall notify the results of any surveillance for highly pathogenic avian influenza virus carried out in mammals and shall immediately inform the Commission of any positive results following this surveillance.
Article 3
Measures to be applied on holdings where outbreaks are suspected
1. In the case of a suspected outbreak, the competent authority shall immediately set in motion an investigation to confirm or exclude the presence of avian influenza and place the holding under official surveillance.
The competent authority shall also ensure that the measures provided for in paragraphs 2 and 3 are complied with.
2. The competent authority shall ensure that the following measures are applied on the holding:
(a)
poultry, other captive birds and all mammals of domestic species are counted or, if appropriate, their numbers estimated by the type of poultry or species of other captive bird;
(b)
a list is compiled of the approximate number of poultry, other captive birds and all mammals of domestic species already sick, dead or likely to be infected in each category on the holding; that list shall be updated daily to take account of hatchings, births and deaths throughout the period of the suspected outbreak and shall be produced on request to the competent authority;
(c)
all poultry and other captive birds are brought inside a building on their holding and kept there. Where this is impractical or if their welfare is compromised they are confined in some other place on the same holding such that they do not have contact with other poultry or other captive birds on other holdings. All reasonable steps are taken to minimise their contact with wild birds;
(d)
no poultry or other captive birds may enter or leave the holding;
(e)
no carcases of poultry or other captive birds, meat of poultry including offal (‘poultry meat’), poultry feed (‘feed’), utensils, materials, waste, droppings, poultry or other captive birds manure (‘manure’), slurry, used litter or anything likely to transmit avian influenza may leave the holding without an authorisation from the competent authority, observing appropriate biosecurity measures such as to minimise any risk of the spread of avian influenza;
(f)
no eggs may leave the holding;
(g)
the movement of persons, mammals of domestic species, vehicles and equipment to or from the holding is subject to the conditions and authorisation of the competent authority;
(h)
appropriate means of disinfection are used at the entrances and exits of buildings housing poultry or other captive birds and of the holding itself in accordance with the instructions of the competent authority.
3. The competent authority shall ensure that an epidemiological inquiry is carried out.
4. Notwithstanding paragraph 1, the competent authority may provide for the submission of samples in other cases. In such circumstances the competent authority may proceed without adopting some or all of the measures referred in paragraph 2.
Article 4
Derogations from certain measures to be applied on holdings where outbreaks are suspected
1. The competent authority may grant derogations from the measures provided for in Article 3(2) points (c) to (e) on the basis of a risk assessment and taking into account the precautions taken and the destination of the birds and products to be moved.
2. The competent authority may also grant derogations from the measures provided for in Article 3(2), point (h) in the case of other captive birds kept on non-commercial holdings.
3. With reference to Article 3(2) point (f), the competent authority may authorise the sending of eggs:
(a)
directly to an establishment for the manufacture of egg products, as set out in Chapter II of Section X of Annex III to Regulation (EC) No 853/2004 of the European Parliament and of the Council (3), to be handled and treated in accordance with Chapter XI of Annex II to Regulation (EC) No 852/2004 of the European Parliament and of the Council (4); where the competent authority issues such an authorisation, the latter shall be subject to the conditions set out in Annex III to Directive 2005/94/EC; or
(b)
for disposal.
Article 5
Duration of the measures to be applied on holdings where outbreaks are suspected
The measures to be applied on holdings in cases of suspected outbreaks, as provided for in Article 3, shall continue to be applied until the competent authority is satisfied that the suspicion of avian influenza on the holding has been ruled out.
Article 6
Additional measures based on an epidemiological inquiry
1. Based on the preliminary results of an epidemiological inquiry, the competent authority may apply the measures provided for in paragraphs 2, 3 and 4 in particular if the holding is located in an area with a high density of poultry.
2. Temporary restrictions may be introduced on the movements of poultry, other captive birds and eggs and the movement of vehicles used by the poultry sector in a defined area or in the whole of the Member State.
Such restrictions may be extended to movements of mammals of domestic species, but in that case shall not exceed 72 hours, unless justified.
3. The measures provided for in Article 7 may be applied to the holding.
However, if conditions permit, application of those measures may be limited to the poultry or other captive birds suspected of being infected and their production units.
Samples shall be taken from the poultry or other captive birds if they are killed in order for the risk of a suspected outbreak to be confirmed or excluded.
4. A temporary control zone around the holding may be established and some or all of the measures provided for in Article 3(2) shall be applied as necessary to the holdings within that zone.
Article 7
Measures to be applied on holdings where outbreaks are confirmed
1. In case of an outbreak of HPAI, the competent authority shall ensure that the measures provided for in Article 3(2) and (3) and paragraphs 2 to 9 of this Article are applied.
2. All poultry and other captive birds on the holding shall be killed without delay under official supervision. The killing shall be carried out in such a way as to avoid the risk of spread of avian influenza, in particular during transport.
However, Member States may grant derogations for certain species of poultry or other captive birds not to be killed, on the basis of an assessment of the risk of further spread of avian influenza.
The competent authority may take appropriate measures to limit any possible spread of avian influenza to any wild birds on the holding.
3. All carcases and eggs on the holding shall be disposed of under official supervision.
4. Poultry already hatched from eggs collected from the holding during the period between the probable date of introduction of HPAI on the holding and the application of the measures provided for in Article 3(2), shall be placed under official supervision and investigations shall be carried out.
5. Meat of poultry slaughtered and eggs collected from the holding during the period between the probable date of introduction of HPAI on the holding and the application of the measures provided for in Article 3(2) shall, wherever possible, be traced and disposed of under official supervision.
6. All substances, manure and waste likely to be contaminated, such as feed, shall be destroyed or undergo a treatment ensuring the destruction of the avian influenza virus, in accordance with the instructions given by the official veterinarian.
7. Following the disposal of carcases, the buildings used for housing them, pastures or land, the equipment likely to be contaminated and the vehicles used for transporting the poultry or other captive birds, carcases, meat, feed, manure, slurry, bedding and any other material or substance likely to be contaminated shall undergo cleaning and disinfection with instructions given by the official veterinarian.
8. Other captive birds or mammals of domestic species shall not enter or leave the holding without the authorisation of the competent authority. That restriction shall not apply to mammals of domestic species which have access only to the living areas for humans.
9. In the case of a primary outbreak, the virus isolate shall be subjected to the laboratory investigations to identify the genetic subtype. That virus isolate shall be submitted to the Community reference laboratory for avian influenza referred to in Article 51(1) of Directive 2005/94/EC as soon as possible.
Article 8
Derogations concerning certain holdings
1. The competent authority may grant derogations from the measures provided for in the first subparagraph of Article 7(2) in cases of an outbreak of HPAI in a non-commercial holding, a circus, a zoo, a pet bird shop, a wild life park, a fenced area where poultry or other captive birds are kept for scientific purposes or purposes related to the conservation of endangered species or officially registered rare breeds of poultry or other captive birds, provided that such derogations do not endanger disease control.
2. The competent authority shall ensure that where a derogation is granted, as provided for in paragraph 1, the poultry and other captive birds concerned by the derogation:
(a)
are brought inside a building on their holding and kept there; where this is impractical or if their welfare is compromised they are confined in some other place on the same holding such that they do not have contact with other poultry or other captive birds on other holdings; all reasonable steps are taken to minimise their contact with wild birds;
(b)
are subjected to further surveillance and testing in accordance with the instructions of the official veterinarian and are not moved until the laboratory tests have indicated that they no longer pose a significant risk of further spread of HPAI; and
(c)
are not moved from their holding of origin, except for slaughter or to another holding:
(i)
located in the same Member State, in accordance with the instructions of the competent authority; or
(ii)
in another Member State, subject to the agreement of the Member State of destination.
3. Notwithstanding the prohibition of movement of poultry or other captive birds in accordance with paragraph 2(b), the competent authority may on the basis of a risk assessment authorise the transport under biosecurity measures of poultry or birds which cannot be appropriately housed and kept under surveillance on the holding of origin to a designated holding in the same Member State, where further surveillance and testing shall be carried out under official surveillance; provided that such authorisation does not endanger disease control.
4. The competent authority may grant derogations from the measures provided for in Article 7(5), for eggs to be sent directly to an establishment for the manufacture of egg products as set out in Chapter II of Section X of Annex III to Regulation (EC) No 853/2004 to be handled and treated in accordance with Chapter XI of Annex II to Regulation (EC) No 852/2004.
5. The Member States shall inform the Commission and the other Member States of any derogation granted on the basis of this provision.
Article 9
Measures to be applied in cases of outbreaks of HPAI in separate production units
In cases of an outbreak of HPAI in a holding which consists of two or more separate production units, the competent authority may grant derogations from the measures provided for in the first subparagraph of Article 7(2) for production units containing poultry or other captive birds where no HPAI is suspected, provided that such derogations do not endanger disease control.
Such derogations shall only be granted in respect of two or more separate production units where the official veterinarian, taking account of the structure, size, operation, type of housing, feeding, water source, equipment, staff and visitors to the holding, is satisfied that they are completely independent of other production units in terms of location and day-to-day management of the poultry or other captive birds kept there.
The Member States shall inform the Commission and the other Member States of any derogation granted on the basis of this provision.
Article 10
Measures to be applied in contact holdings
1. Based on the epidemiological inquiry, the competent authority shall decide if a holding is to be considered as a contact holding.
The competent authority shall ensure that the measures provided for in Article 3(2) are applied to contact holdings until the presence of HPAI has been excluded.
2. Based on the epidemiological inquiry, the competent authority may apply the measures provided for in Article 7 to contact holdings and in particular if the contact holding is located in an area with a high density of poultry.
The main criteria to be considered for the application of the measures provided for in Article 7 in contact holdings are set out in Annex IV to Directive 2005/94/EC.
3. The competent authority shall ensure that samples are taken from poultry and other captive birds when they are killed in order to confirm or exclude the presence of HPAI virus in those contact holdings.
4. The competent authority shall ensure that, on any holding where poultry or other captive birds are killed and disposed of and avian influenza is subsequently confirmed, the buildings and any equipment likely to be contaminated and the vehicles used for transporting the poultry, other captive birds, carcases, meat, feed, manure, slurry, bedding and any other material or substance likely to be contaminated undergo cleaning and disinfection with instructions given by the official veterinarian.
Article 11
Establishment of protection, surveillance and further restricted zones in cases of outbreaks of HPAI
1. The competent authority shall immediately following an outbreak of HPAI establish:
(a)
a protection zone with a radius of at least three kilometres around the holding;
(b)
a surveillance zone with a radius of at least 10 kilometres around the holding, including the protection zone.
2. If the outbreak of HPAI is confirmed in other captive birds in a non-commercial holding, circus, zoo, pet bird shop, wildlife park, a fenced area where other captive birds are kept for scientific purposes or purposes related to the conservation of endangered species or officially registered rare breeds of other captive birds that do not contain poultry, the competent authority may, following a risk assessment, derogate to the extent necessary from the provisions of Articles 11 to 26 concerning the establishment of the protection and surveillance zones and the measures to be applied therein, provided that such derogations do not endanger disease control.
3. When establishing protection and surveillance zones, as provided for in paragraph 1, the competent authority shall at least take account of the following criteria:
(a)
the epidemiological inquiry;
(b)
the geographical situation, particularly natural boundaries;
(c)
the location and proximity of holdings and the estimated number of poultry;
(d)
patterns of movements and trade in poultry or other captive birds;
(e)
the facilities and personnel available to control any movement within the protection and surveillance zones of poultry or other captive birds, their carcases, manure, bedding or used litter, in particular if the poultry or other captive birds to be killed and disposed of have to be moved from their holding of origin.
4. The competent authority may establish further restricted zones around or adjacent to the protection and surveillance zones, taking account of the criteria provided for in paragraph 3.
5. If a protection, surveillance or further restricted zone covers the territories of different Member States, the competent authorities of the Member States concerned shall collaborate to establish the zone.
Article 12
Measures to be applied both in the protection and in the surveillance zones
1. The competent authority shall ensure that the following measures are applied within the protection and surveillance zones:
(a)
arrangements are put in place which permit the tracing of anything likely to spread the avian influenza virus including poultry, other captive birds, meat, eggs, carcases, feed, litter, people who have been in contact with the infected poultry or other captive birds or vehicles with a link to the poultry industry;
(b)
owners are to provide the competent authority, on request, with any relevant information concerning the poultry or other captive birds and eggs entering or leaving the holding.
2. The competent authority shall take all reasonable steps to ensure that all persons in the protection and surveillance zones affected by the restrictions concerned are fully aware of the restrictions in place.
That information may be conveyed through warning notices, media resources such as the press and television or any other appropriate means.
3. The competent authority may, where epidemiological information or other evidence indicates, implement a preventive eradication programme, including preventive slaughtering or killing of poultry or other captive birds, in holdings and areas at risk.
4. Member States applying the measures provided for in paragraph 3 shall immediately inform the Commission thereof.
Article 13
Census and visits by the official veterinarian and surveillance
The competent authority shall ensure that the following measures are applied in protection zones:
(a)
a census of all the holdings is made as soon as possible;
(b)
all commercial holdings are visited by an official veterinarian as soon as possible for a clinical examination of the poultry and other captive birds and, if necessary, the collection of samples for laboratory tests in accordance with instructions given by the official veterinarian; a record of such visits and the findings thereof shall be kept; non-commercial holdings are visited by an official veterinarian before the lifting of the protection zone;
(c)
additional surveillance is immediately implemented in accordance with instructions given by the official veterinarian in order to identify any further spread of avian influenza in the holdings located in the protection zone.
Article 14
Measures to be applied on holdings in protection zones
The competent authority shall ensure that the following measures are applied on holdings in protection zones:
(a)
all poultry and other captive birds are brought inside a building on their holding and kept there. Where this is impractical or if their welfare is compromised, they are confined in some other place on the same holding such that they do not have contact with other poultry or other captive birds on other holdings. All reasonable steps are taken to minimise their contact with wild birds;
(b)
carcases are disposed of as soon as possible;
(c)
vehicles and equipment used for transporting live poultry or other captive birds, meat, feed, manure, slurry and bedding and any other material or substances likely to be contaminated, undergo cleaning and disinfection with instructions given by the official veterinarian;
(d)
all parts of vehicles used by staff or other persons which enter or leave holdings and are likely to have become contaminated undergo cleaning and disinfection with instructions given by the official veterinarian;
(e)
no poultry, other captive birds or domestic mammals may enter or leave a holding without authorisation of the competent authority. This restriction shall not apply to mammals which have access only to the living areas for humans in which they:
(i)
have no contact with resident poultry or other captive birds, and
(ii)
have no access to any cages or areas where such resident poultry or other captive birds are kept;
(f)
any increased morbidity or mortality or significant drop in production data in holdings is immediately reported to the competent authority, which shall carry out appropriate investigations in accordance with instructions given by the official veterinarian;
(g)
any person entering or leaving holdings observes appropriate biosecurity measures aimed at preventing the spread of avian influenza;
(h)
records of all persons visiting holdings, except dwellings, are kept by the owner in order to facilitate disease surveillance and control and must be made available upon request by the competent authority. Such records do not have to be kept where the visitors are to holdings such as zoos and wildlife parks where they have no access to the areas where the birds are kept.
Article 15
Prohibition on the removal or spreading of used litter, manure or slurry from holdings
The competent authority shall ensure that the removal or spreading of used litter, manure or slurry from holdings in protection zones are prohibited, unless authorised by it. However, the movement of manure or slurry may be authorised from holdings under biosecurity measures to a designated plant for treatment or for intermediate storage for subsequent treatment to destroy the possible presence of avian influenza viruses in accordance with Regulation (EC) No 1774/2002 of the European Parliament and of the Council (5).
Article 16
Fairs, markets or other gatherings and restocking of game
The competent authority shall ensure that fairs, markets, shows or other gatherings of poultry or other captive birds are prohibited in protection zones.
The competent authority shall ensure that poultry or other captive birds for restocking of game are not released in protection zones.
Article 17
Prohibition on the movement and transport of birds, eggs, poultry meat and carcases
1. The competent authority shall ensure that within protection zones, the movement and transport from holdings on to roads, excluding private service roads of holdings, or by rail, of poultry, other captive birds, ready-to-lay poultry, day-old chicks, eggs and carcases are prohibited.
2. The competent authority shall ensure that the transport of poultry meat from slaughterhouses, cutting plants and cold stores is prohibited unless it has been produced:
(a)
from poultry which has originated from outside the protection zones and has been stored and transported separately from the meat of poultry from within the protection zones; or
(b)
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 has been stored and transported separately from such meat produced after that date.
3. However, the prohibitions in paragraphs 1 and 2 shall not apply to transit through the protection zone on roads or rail without unloading or stopping.
Article 18
Derogations for the direct transport of poultry for immediate slaughter and the movement or treatment of poultry meat
1. By way of derogation from Article 17, the competent authority may authorise the direct transport of poultry originating from a holding in the protection zone for immediate slaughter to a designated slaughterhouse subject to the following conditions:
(a)
a clinical examination of the poultry on the holding of origin is carried out by the official veterinarian within 24 hours of being sent for slaughter;
(b)
where appropriate, laboratory tests have been carried out on poultry on the holding of origin in accordance with instructions given by the official veterinarian with favourable results;
(c)
the poultry are transported in vehicles sealed by the competent authority or under its supervision;
(d)
the competent authority responsible for the designated slaughterhouse is informed and agrees to receive the poultry and then confirms the slaughter to the competent authority of dispatch;
(e)
the poultry from the protection zone are kept separately from other poultry and are slaughtered separately or at different times from other poultry, preferably at the end of a working day; subsequent cleansing and disinfection shall be completed before other poultry are slaughtered;
(f)
the official veterinarian shall ensure that a detailed examination of the poultry is carried out at the designated slaughterhouse when the poultry arrive and after they are slaughtered;
(g)
the meat does not enter into intra-Community or international trade and bears the health mark for fresh meat provided for in Annex II to Council Directive 2002/99/EC (6);
(h)
the meat is obtained, cut, transported and stored separately from meat intended for intra-Community and international trade and is used in such a way as to avoid it being introduced into meat products intended for intra-Community or international trade, unless it has undergone a treatment set out in Annex III to Directive 2002/99/EC.
2. By way of derogation from Article 17, the competent authority may authorise the direct transport of poultry from outside the protection zone for immediate slaughter to a designated slaughterhouse within the protection zone and subsequent movement of the meat derived from such poultry providing that:
(a)
the competent authority responsible for the designated slaughterhouse is informed and agrees to receive the poultry and then confirms the slaughter to the competent authority of dispatch;
(b)
the poultry are kept separate from other poultry originating within the protection zone and are slaughtered separately or at different times from other poultry;
(c)
the poultry meat produced is cut, transported and stored separately from poultry meat obtained from other poultry originating in the protection zone;
(d)
the animal by-products are disposed of.
Article 19
Derogations for the direct transport of day-old chicks
1. By way of derogation from Article 17, the competent authority may authorise the direct transport of day-old chicks, originating from holdings within the protection zone to a holding or shed of that holding in the same Member State, preferably located outside the protection and the surveillance zones, subject to the following conditions:
(a)
they are transported in vehicles sealed by the competent authority or under its supervision;
(b)
appropriate biosecurity measures are applied during transport and at the holding of destination;
(c)
the holding of destination is placed under official surveillance following the arrival of the day-old-chicks;
(d)
if moved outside the protection or surveillance zone, the poultry shall remain on the holding of destination for at least 21 days.
2. By way of derogation from Article 17, the competent authority may authorise the direct transport of day-old chicks, hatched from eggs originating from holdings located outside the protection and surveillance zones, to any other holding in the same Member State, preferably located outside the protection and the surveillance zones, provided that the hatchery of dispatch can ensure by its logistics and by its hygienic working conditions that no contact has occurred between those eggs and any other hatching eggs or day-old chicks originating from poultry flocks within such zones and which are therefore of a different health status.
Article 20
Derogations for the direct transport of ready to lay poultry
By way of derogation from Article 17, the competent authority may authorise the direct transport of ready-to-lay poultry to a holding or shed of that holding preferably within the protection or the surveillance zone in which there is no other poultry, subject to the following conditions:
(a)
a clinical examination of the poultry and other captive birds in the holding of origin and in particular of those to be moved is carried out by the official veterinarian;
(b)
where appropriate, laboratory tests have been carried out on poultry in the holding of origin in accordance with instructions given by the official veterinarian with favourable results;
(c)
the ready-to-lay poultry is transported in vehicles sealed by the competent authority or under its supervision;
(d)
the holding or shed of destination is placed under official surveillance following the arrival of the ready-to-lay poultry;
(e)
if moved outside the protection or surveillance zone, the poultry shall remain on the holding of destination for at least 21 days.
Article 21
Derogation for the direct transport of hatching and table eggs
1. By way of derogation from Article 17, the competent authority may authorise the direct transport of hatching eggs either from any holding to a hatchery located, in the protection zone and designated by the competent authority (‘the designated hatchery’) or, subject to the following conditions, from a holding located in the protection zone to any designated hatchery:
(a)
the parent flocks from which the hatching eggs are derived have been examined by the official veterinarian in accordance with instructions given by the competent authority and avian influenza is not suspected on these holdings;
(b)
the hatching eggs and their packaging are disinfected before dispatch and the tracing back of these eggs can be ensured;
(c)
the hatching eggs are transported in vehicles sealed by the competent authority or under its supervision;
(d)
biosecurity measures are applied in the designated hatchery in accordance with the instructions of the competent authority.
2. By way of derogation from Article 17, the competent authority may authorise the direct transport of eggs:
(a)
to a packing centre designated by the competent authority (‘the designated packing centre’), provided that they are packed in disposable packaging and that all biosecurity measures required by the competent authority are applied;
(b)
to an establishment for the manufacture of egg products as set out in Chapter II of Section X of Annex III to Regulation (EC) No 853/2004 to be handled and treated in accordance with Chapter XI of Annex II to Regulation (EC) No 852/2004; or
(c)
for disposal.
Article 22
Derogation for the direct transport of carcases
By way of derogation from Article 17, the competent authority may authorise the direct transport of carcases provided that they are transported to be disposed of.
Article 23
Cleansing and disinfecting of means of transport
The competent authority shall ensure that the vehicles and equipment used for the transport as provided for in Articles 18 to 22 are cleansed and disinfected without delay in accordance with the instructions of the official veterinarian.
Article 24
Duration of measures
1. The measures provided for in Articles 13 to 23 shall be maintained for at least 21 days following the date of completion of preliminary cleansing and disinfection on the infected holding in accordance with instructions given by the official veterinarian and until holdings located in the protection zone have been tested in accordance with instructions given by the official veterinarian.
2. When the measures provided for in Articles 13 to 23 are no longer to be maintained, as provided for in paragraph 1 of this Article, the measures laid down in Article 25 shall apply in the former protection zone, until they are no longer to be applied as provided for in Article 26.
Article 25
Measures to be applied in the surveillance zones
The competent authority shall ensure that the following measures are applied in surveillance zones:
(a)
a census of all commercial poultry holdings is made as soon as possible;
(b)
the movement of poultry, ready-to-lay poultry, day-old chicks, eggs within the surveillance zone is prohibited unless authorisation is granted by the competent authority, which ensures that appropriate biosecurity measures are applied to prevent the spread of avian influenza; this prohibition shall not apply to transit thorough the surveillance zone on road or rail without unloading or stopping;
(c)
the movement of poultry, ready-to-lay poultry, day-old chicks and eggs to holdings, slaughterhouses, packing centres or an establishment for the manufacture of egg products located outside the surveillance zone is prohibited; however, the competent authority may authorise the direct transport of:
(i)
poultry for slaughter to a designated slaughterhouse, for the purpose of immediate slaughter subject to Article 18(1), points (a), (b) and (d);
The competent authority may authorise the direct transport of poultry from outside the protection and surveillance zones for immediate slaughter to a designated slaughterhouse within the surveillance zone and the subsequent movement of the meat derived from such poultry;
(ii)
ready-to-lay poultry to a holding in which there is no other poultry in the same Member State; that holding shall be placed under official surveillance following the arrival of the ready-to-lay poultry and the ready-to-lay poultry shall remain on the holding of destination for at least 21 days;
(iii)
day-old chicks:
-
to a holding or shed of such holding in the same Member State provided that appropriate biosecurity measures are applied and the holding is placed under official surveillance following the transport and the day-old chicks shall remain on the holding of destination for at least 21 days, or
-
if hatched from hatching eggs originating from poultry holdings located outside the protection and surveillance zones, to any other holding, provided that the hatchery of dispatch can ensure by its logistics and biosecurity working conditions that no contact has occurred between these eggs and any other hatching eggs or day-old-chicks originating from poultry flocks within those zones and which are therefore of a different health status;
(iv)
hatching eggs to a designated hatchery located inside or outside the surveillance zone; the eggs and their packaging shall be disinfected before dispatch and the tracing back of these eggs must be ensured;
(v)
table eggs to a designated packing centre, provided that they are packed in disposable packaging and that all biosecurity measures required by the competent authority are applied;
(vi)
eggs to an establishment for the manufacture of egg products as set out in Chapter II of Section X of Annex III to Regulation (EC) No 853/2004 to be handled and treated in accordance with Chapter XI of Annex II to Regulation (EC) No 852/2004 located inside or outside the surveillance zone;
(vii)
eggs for disposal;
(d)
any person entering or leaving holdings in the surveillance zone observes appropriate biosecurity measures aimed at preventing the spread of avian influenza;
(e)
vehicles and equipment used for transporting live poultry or other captive birds, carcases, feed, manure, slurry and bedding and any other material or substances likely to be contaminated, are cleansed and disinfected without delay after contamination in accordance with the instructions given by the official veterinarian;
(f)
no poultry, other captive birds or mammals of domestic species may enter or leave a holding where poultry is kept without authorisation of the competent authority. This restriction shall not apply to mammals which have access only to the living areas for humans in which they:
(i)
have no contact with resident poultry or other captive birds, and
(ii)
have no access to any cages or areas where such resident poultry or other captive birds are kept;
(g)
any increased morbidity or mortality or significant drop in production data in holdings is immediately reported to the competent authority, which shall carry out appropriate investigations in accordance with instructions given by the official veterinarian;
(h)
the removal or spreading of used litter, manure or slurry is prohibited unless authorised by the competent authority; the movement of manure may be authorised from a holding situated in the surveillance zone under biosecurity measures to a designated plant for treatment or for intermediate storage for subsequent treatment to destroy the possible presence of avian influenza viruses, in accordance with Regulation (EC) No 1774/2002;
(i)
fairs, markets, shows or other gatherings of poultry or other captive birds are prohibited;
(j)
poultry for restocking of game are not released.
Article 26
Duration of measures
The measures provided for in Article 25 shall be maintained for at least 30 days following the date of completion of preliminary cleansing and disinfection on the infected holding in accordance with instructions given by the official veterinarian.
Article 27
Measures to be applied in further restricted zones
1. The competent authority may provide that some or all the measures provided for in Articles 13 to 26 shall apply inside the further restricted zones provided for in Article 11(4) (‘the further restricted zones’).
2. The competent authority may, where epidemiological information or other evidence indicates, implement a preventive eradication programme, including preventive slaughtering or killing of poultry or other captive birds, in holdings and areas at risk, according to the criteria of Annex IV of Directive 2005/94/EC, located in further restricted zones.
The restocking of those holdings shall take place in accordance with the instructions of the competent authority.
3. Member States applying the measures provided for in paragraphs 1 and 2 shall inform the Commission thereof.
Article 28
Laboratory tests and other measures concerning pigs and other species
1. The competent authority shall ensure that following confirmation of HPAI on any holding, appropriate laboratory tests are carried out on any pigs present on the holding to confirm or exclude that those pigs are, or have been, infected with the highly pathogenic avian influenza virus.
No pigs shall be moved from the holding pending the results of those tests.
2. Where laboratory tests provided for in paragraph 1 confirm positive findings for HPAI viruses in pigs, the competent authority may authorise the movement of those pigs to other pig holdings or to designated slaughterhouses, provided that subsequent appropriate tests have shown that the risk of spread of avian influenza is negligible.
3. The competent authority shall ensure that where laboratory tests provided for in paragraph 1 confirm a serious health threat, the pigs are killed as soon as possible under official supervision and in such a way as to prevent the spread of avian influenza virus, in particular during transport, and in accordance with Council Directive 93/119/EEC (7).
4. The competent authority may, following confirmation of avian influenza on any holding, and based on a risk assessment, apply the measures provided for in paragraphs 1, 2 and 3 to any other mammals present on the holding and may extend those measures to contact holdings.
5. Member States shall inform the Commission within the framework of the Standing Committee on the Food Chain and Animal Health of the results of the tests and measures applied pursuant to paragraphs 1 to 4.
6. The competent authority may, following confirmation of HPAI virus in pigs or any other mammals on any holding, undertake surveillance to identify and apply measures to prevent any further spread of HPAI to other species.
Article 29
Re-population of holdings
1. Member States shall ensure that paragraphs 2 to 5 of this Article are complied with, following the application of the measures provided for in Article 7.
2. The re-population of commercial poultry holdings shall not take place for a period of 21 days following the date of completion of the final cleansing and disinfection in accordance with the instructions given by the official veterinarian.
3. The following measures shall be performed during a period of 21 days following the date of the re-population of the commercial poultry holdings:
(a)
the poultry undergo at least one clinical examination carried out by the official veterinarian. That clinical examination, or if more than one is carried out, the final clinical examination, is undertaken as near as possible to the end of the 21 day-period referred to above;
(b)
laboratory tests are carried out in accordance with the instructions of the competent authority;
(c)
poultry that die during the re-population phase are tested in accordance with the instructions of the competent authority;
(d)
any person entering or leaving the commercial poultry holding complies with appropriate biosecurity measures aimed at preventing the spread of avian influenza;
(e)
during the re-population phase no poultry leaves the commercial poultry holding without the authorisation of the competent authority;
(f)
the owner keeps a record on the production data, including morbidity and mortality data, which must be updated regularly;
(g)
any significant change in production data, as referred to in point (f), and other abnormalities are immediately reported to the competent authority.
4. Based on a risk assessment, the competent authority may order that the procedures provided for in paragraph 3 be applied to holdings other than commercial poultry holdings or other species on a commercial poultry holding.
5. The re-repopulation of poultry in contact holdings shall take place in accordance with the instructions of the competent authority based on a risk assessment.
Article 30
Validity
This Decision shall apply until 30 June 2007.
Article 31
Addressees
This Decision is addressed to the Member States.
Done at Brussels, 14 June 2006. | [
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COMMISSION REGULATION (EC) No 1835/1999
of 24 August 1999
amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff(1), as last amended by Commission Regulation (EC) No 1506/1999(2), and in particular Article 9 thereof,
(1) Whereas the wording to heading 2202 encompasses "Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured";
(2) Whereas, in order to ensure the uniform application of the Combined Nomenclature, it should be made clear that this heading cover only waters for direct consumption as beverages, as is the case of other non-alcoholic beverages of heading 2202;
(3) Whereas an additional note should therefore be inserted in Chapter 22 to clarify the content of subheading 2202 10 00, which covers "Waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured";
(4) Whereas the provisions of this Regulation are in accordance with the opinion of the Customs Code Committee,
HAS ADOPTED THIS REGULATION:
Article 1
Chapter 22 of the Combined Nomenclature in Annex I to Regulation (EEC) No 2658/87 is hereby amended as follows:
1. The following Additional Note 1 is inserted: "Subheading 2202 10 00 covers waters, including mineral waters and aerated waters, containing added sugar or other sweetening matter or flavoured, providing they are for direct consumption as a beverage."
2. The present Additional Notes 1 to 10 are renumbered 2 to 11.
Article 2
This Regulation shall enter into force on the 21st day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 August 1999. | [
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COMMISSION REGULATION (EC) No 1060/2004
of 28 May 2004
concerning tenders submitted in response to the invitation to tender for the export of husked long grain B rice to the island of Réunion referred to in Regulation (EC) No 1878/2003
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), and in particular Article 10(1) thereof,
Having regard to Commission Regulation (EEC) No 2692/89 of 6 September 1989 laying down detailed rules for exports of rice to Réunion (2), and in particular Article 9(1) thereof,
Whereas:
(1)
Commission Regulation (EC) No 1878/2003 (3) opens an invitation to tender for the subsidy on rice exported to Réunion.
(2)
Article 9 of Regulation (EEC) No 2692/89 allows the Commission to decide, in accordance with the procedure laid down in Article 22 of Regulation (EC) No 3072/95 and on the basis of the tenders submitted, to make no award.
(3)
On the basis of the criteria laid down in Articles 2 and 3 of Regulation (EEC) No 2692/89, a maximum subsidy should not be fixed.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
No action shall be taken on the tenders submitted from 24 to 27 May 2004 in response to the invitation to tender referred to in Regulation (EC) No 1878/2003 for the subsidy on exports to Réunion of husked long grain B rice falling within CN code 1006 20 98.
Article 2
This Regulation shall enter into force on 29 May 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 May 2004. | [
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COMMISSION DECISION of 19 March 1991 adjusting the weightings applicable from 1 November 1990 to the remuneration of officials of the European Communities serving in non-member countries (91/195/ECSC, EEC, Euratom)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Havig 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 laid down by Regulation (EEC, Euratom, ECSC) No 259/68 (1), as last amended by Regulation (Euratom, ECSC, EEC) No 3736/90 (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 No 3912/90 (3) laid down the weightings to be applied from 1 July 1990 to the remuneration of officials serving in non-member 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;
Whereas, some of these weightings should be adjusted with effect from 1 November 1990 given that the statistics available to the Commission show that in certain non-member countries the variation in the cost of living measured on the basis of the weighting and the corresponding exchange rate has exceeded 5 % since weightings were last laid down or adjusted;
DECIDES: Sole Article With effect from 1 November 1990 the weightings applicable to the remuneration of officials serving in non-member countries payable in the currency of their country of employment are adjusted as shown in the Annex.
The exchange rates for the payment of such remuneration shall be those used for implementation of the budget of the European Communities during the month preceding the date on which this Decision takes effect. Done at Brussels, 19 March 1991. | [
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COMMISSION REGULATION (EC) No 1222/2005
of 28 July 2005
fixing the rates of the refunds applicable to certain cereal and rice products exported in the form of goods not covered by Annex I to the Treaty
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (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(1) of Regulation (EC) No 1784/2003 and Article 14(1) 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 each of those Regulations and the prices within the Community may be covered by an export refund.
(2)
Commission Regulation (EC) No 1043/2005] of 30 June 2005 implementing Council Regulation (EC) No 3448/93 as regards the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds (3), specifies the products for which a rate of refund is to be fixed, to be applied where these products are exported in the form of goods listed in Annex III to Regulation (EC) No 1784/2003 or in Annex IV to Regulation (EC) No 1785/2003 as appropriate.
(3)
In accordance with the first paragraph of Article 14 of Regulation (EC) No 1043/2005, the rate of the refund per 100 kilograms for each of the basic products in question is to be fixed each month.
(4)
The commitments entered into with regard to refunds which may be granted for the export of agricultural products contained in goods not covered by Annex I to the Treaty may be jeopardised by the fixing in advance of high refund rates. It is therefore necessary to take precautionary measures in such situations without, however, preventing the conclusion of long-term contracts. The fixing of a specific refund rate for the advance fixing of refunds is a measure which enables these various objectives to be met.
(5)
Taking into account the settlement between the European Community and the United States of America on Community exports of pasta products to the United States, approved by Council Decision 87/482/EEC (4), it is necessary to differentiate the refund on goods falling within CN codes 1902 11 00 and 1902 19 according to their destination.
(6)
Pursuant to Article 15(2) and (3) of Regulation (EC) No 1043/2005, a reduced rate of export refund has to be fixed, taking account of the amount of the production refund applicable, pursuant to Commission Regulation (EEC) No 1722/93 (5), for the basic product in question, used during the assumed period of manufacture of the goods.
(7)
Spirituous beverages are considered less sensitive to the price of the cereals used in their manufacture. However, Protocol 19 of the Act of Accession of the United Kingdom, Ireland and Denmark provides that the necessary measures must be decided to facilitate the use of Community cereals in the manufacture of spirituous beverages obtained from cereals. Accordingly, it is necessary to adapt the refund rate applying to cereals exported in the form of spirituous beverages.
(8)
The Management Committee for Cereals has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
The rates of the refunds applicable to the basic products listed in Annex I to Regulation (EC) No 1043/2005 and in Article 1 of Regulation (EC) No 1784/2003 or in Article 1 of Regulation (EC) No 1785/2003, and exported in the form of goods listed in Annex III to Regulation (EC) No 1784/2003 or in Annex IV to Regulation (EC) No 1785/2003 respectively, shall be fixed as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 29 July 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 July 2005. | [
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COUNCIL REGULATION (EC) No 3205/93 of 16 November 1993 amending Regulation (EEC) No 357/79 on statistical surveys of areas under vines
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 43 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Whereas Article 5 of Regulation (EEC) No 357/79 (3) provides for annual data on vineyard areas collected in intermediate surveys to be forwarded to the Commission;
Whereas Article 4 of Council Regulation (EEC) No 2392/86 of 24 July 1986 establishing a Community vineyard register (4), provides for the register to be established within a period of six years following the date of that Regulation's entry into force; whereas the register is beginning to become operational or at least to take on a form that enables it to be used for statistical purposes in some Member States and Community regions, especially as regards the characteristics of areas under vines;
Whereas the Member States which have already set up the vineyard register at national level or in some regions and ensure its regular updating in accordance with Article 5 (3) of Regulation (EEC) No 2392/86, can begin to use it for statistical purposes;
Whereas the statistical results from the vineyard register annually updated can also be used as the source of annual data, once their statistical reliability has been validated;
Whereas it is essential to ensure close cooperation between the Member States and the Commission;
Whereas the Treaty lays down that agricultural policies are Community policies; whereas it is necessary to establish general and comprehensive rules valid throughout the Community for the agricultural statistics on which the common agricultural policy is based; whereas the resulting workload must be kept to a minimum by avoiding the same information being collected several times by the Member States,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 357/79 is hereby amended as follows:
1. the following paragraph shall be added to Article 5:
'4a. The Commission shall examine in close collaboration with the Member States concerned whether the conditions governing the use of the data from the vineyard register for statistical purposes have been fulfilled.';
2. the following Article shall be inserted:
'Article 6a
The Member States which have introduced the vineyard register at national level or in some regions and which update it annually, as provided for in Regulation (EEC) No 2392/86, may communicate to the Commission the annual information laid down in
Articles 5 and 6 of this Regulation, using the data in the vineyard register as their source.'
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 November 1993. | [
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COMMISSION DECISION of 20 December 1989 concerning aid granted by the French Government for the disposal of the assets of the MFL Group (Machines françaises lourdes), producer of heavy-duty machine tools (Only the French text is authentic) (92/328/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
As a result of information published in the French press, by letter dated 22 February 1988 the French authorities were requested to notify the Commission of certain steps taken by the public authorities in favour of the companies of the MFL Group.
Despite repeated reminders, the French authorities did not reply to the Commission's requests. For that reason, and having well-founded doubts as to the compatibility with the Treaty of those alleged State measures, the Commission decided to initiate a formal investigation procedure pursuant to Article 93 (2) of the EEC Treaty. In this respect, the Commission took into account the strong competition prevailing among machine-tool producers within the Community, for which any aid measure granted to a specific producer involves a high risk of distortion of competition.
The decision was communicated to the French Government by letter of 22 December 1988, giving it notice to submit its comments. The other Member States were informed by letters dated 12 May 1989.
Finally, notice to other interested parties was given on 20 May 1989 by means of the publication of a notice in the Official Journal of the European Communities.
II
The first details on the public measures were furnished by the French authorities by letter dated 14 March 1989. They were completed by letters dated 15 June and 20 July 1989, at the Commission's request.
According to them, in March and May 1988 the French authorities had decided to contribute to the recovery plan of the production facilities of MFL, whose assets had been sold to third producers under receivership proceedings initiated in November 1987.
MFL was a holding company created in 1983 by the merger of several pre-existing machine-tool producers into two production subsidiaries, namely Forest Line and Berthiez Saint-Étienne. The group structure was completed by two trading companies in the USA, MFL Inc. and Goldsworthy.
The formation of MFL responded to the objectives of the Machine-Tool Programme, a government-backed programme implemented in France between 1982 and 1985 with the purpose of reorganizing and supporting the restructuring of the national industry which was in serious difficulties. The underlying basic idea was to regroup several small machine-tool concerns which were in difficulty into large groups better placed to face foreign competition. Under the programme, the French Government invested about FF 2 600 million (ECU 366 million) in the form of profit-sharing loans (61 %) and subsidies and repayable advances (39 %), funding various activities, such as social restructuring and training (40 %), research and development and commercial measures (32 %), and modernization of production equipment (28 %). It should be noted that, as regards the aid involved in the Machine-Tool Programme, in 1986 the Commission decided to close an investigation procedure without raising any objection to the programme's execution in view of its contribution to the development within the Community of this industry of strategic importance.
For the creation of MFL, the French Government intervened through Sopari (State-owned company for participation in companies and industrial restructuring) taking a majority shareholding (35,2 %). At the same time nine other French industrial groups were recruited as partners (Usinor, Sacilor, Renault, Alsthom, Peugeot, Schneider, Snecma, Dassault, Aéroespatiale). They were in general nationalized groups, and presented the common characteristic of being final users of the MFL product range. Thus, MFL was conceived as a specialized supplier of machine tools for strategic sectors. The MFL production break-down by purchasing sector was as follows: aeronautics (30 %), armaments (20 %), energy (10 %), automobile (6 %), mechanical and others (34 %).
At the end of 1986, the production subsidiaries of MFL had the following profile:
- Forest Line (FL) - industrial plants situated in Albert (Somme) and Capdenac (Lot), basically specialized in milling machines -: 602 workers; a turnover of FF 376 million with FF 71 million losses on ordinary activities; since 1983 FL had registered FF 191 million losses on ordinary activities,
- Berthiez Saint-Étienne (BSE) - industrial plant situated in Saint-Étienne (Loire), specialized in flexible machining centres, heavy winding machines and rectifiers -: 508 workers; a turnover of FF 242 million with FF 112 million losses on ordinary actitivies; since 1983 BSE had registered FF 389 million losses on ordinary activities.
These figures clearly show that, since its creation in 1983 and despite significant State support under the Machine-Tool Programme estimated at about FF 1 000 million aid, MFL always operated under great difficulties. This troublesome situation was also common for some other French companies aided under the same programme, mainly as a result of the overall recession in the sector and the impossibility of competing against foreign producers. As a consequence several of them either went bankrupt or were taken over by Japanese or other European groups.
For MFL the situation became untenable in November 1987, when it went into the legal state of suspension of payments and French commercial courts placed its subsidiaries in the hands of judicial administrators. This temporary state was for the purpose of assessing its financial situation and recovery possibilities. In this context, the French authorities initiated contacts to find new investors to back MFL. These contacts succeeded with two different groups interested in taking control of the MFL subsidiaries after an eventual liquidation. Therefore the recovery of MFL activities was planned in the form of liquidation followed by disposal of assets in favour of the two bids presented by potential purchasers.
Forest Line (FL) - In January 1988, the Commercial Court of Paris decided to accept the sole purchase bid submitted for this subsidiary. The French group Brisard (FF 700 million turnover with 1 200 workers) offered FF 8 million for the assets related to FL operations, to the exclusion of receivables. In addition Brisard agreed to keep 495 of the workforce of 558. For this purpose, a new undertaking would be created, Brisard Machine-Outil (BMO), to which Brisard formally agreed to put up FF 65 million. The private fixed financing of BMO would be completed by FF 45 million from other investors in the form of medium and long-term credits. Finally, in March 1988 the French Government decided to contribute to the company's recovery with FF 25 million in the form of a repayable advance, to be repaid over 10 years following the sixth accounting period from that in which the assets were disposed of, if the cash flow to turnover ratio exceeded 15 % at that time.
In addition, the French authorities decided to finance an extraordinary social plan for the 63 workers not taken over by BMO. This extraordinary measure with a cost for the State of FF 4 972 million, was made outside the scope of application of the FNE (Fond national de l'emploi), the general aid scheme applicable in France in the event of redundancies. With this additional sum, those workers will receive supplementary severance payments, employment premiums, re-training and where possible extraordinary payments for early-retirement.
Berthiez Saint-Étienne (BSE) - The disposal of the second MFL production subsidiary took place in two steps because of the failure of the first attempt.
In March 1988, the Commercial Court of Saint-Étienne, responsible for the receivership of BSE, decided to accept a joint purchase bid submitted by the French group Smits-Lievre and the Belgian company Pegard. They offered FF 5 million for the acquisition of the assets related to BSE operations, to the exclusion of receivables. At the same time, they agreed to keep 160 of the workforce of 344. The disposal plan provided for the creation of a new company, Berthiez Productics (BP) to which the new owners would contribute FF 12 million. FF 30 million would additionally be provided by private investors in the form of medium and long-term credits. Finally, in May 1988 the French Government decided to contribute to the recovery plan of BP with FF 17 million granted in the form of a repayable advance, bearing the same repayment condition as that awarded to BMO, that is to say it would be repaid over 10 years following the sixth accounting period from that in which the assets were disposed of, if the cash flow to turnover ratio exceeded 15 % at that time.
In addition, and in parallel with the other disposal, the French Government decided to finance a social plan for the benefit of the workers made redundant, whose cost amounts to FF 16,2 million, with the same objectives as the plan for FL.
Nevertheless, despite the efforts made by the new owners, they failed to relaunch the company's actdivities. In October 1988 they were also compelled to place the company in the hands of judicial administrators under new receivership proceedings. Again the Commercial Court of Saint-Étienne re-examined the feasibility prospects of BP, and the possbility of a second disposal to another private investor interested in purchasing the company. On that basis, in November 1988, the Court accepted one of the two initial bids received from new potential purchasers. It should be noted that both bids were practically equivalent as regards acquisition price and social terms, and both opted for a disposal of assets without taking-over liabilities. According to the Court's records, the bid accepted was that ensuring the soundest financial position from the outset in the form of fixed financing. In these circumstances the preferred bid was that submitted by the Brisard group, which had also taken control of the assets of the other former MFL subsidiary.
Brisard offered an acquisition price of FF 7,4 million for the goodwill, stocks and receivables of BP, and committed itself to the creation of a new company keeping 140 of the workforce of 169. For its part, the municipality of Saint-Étienne acquired the land and buildings of the former BSE for FF 4 million, and signed a rental contract with the new company.
In this case, the French Government did not grant any advance to the company resulting from this second disposal, Berthiez SA. Notwithstanding, in view of the additional redundancies, the French Government decided to finance a new extraordinary social plan of FF 3,5 million in favour of these workers, with the same characteristics as those already implemented for FL and BSE.
Finally it should be mentioned that, within the framework of consultation of other interested parties, the governments of two other Member States submitted observations. These observations were communicated to the French authorities by letter of 7 September 1989, giving them notice to submit their comments within a one month period. No answer was received.
III
On its examination of the public measures in support of the companies of MFL, the Commission has verified to what extent those measures contain aid elements in the light of Articles 92 to 94 of the EEC Treaty.
At first sight, the French authorities have intervened in favour of MFL in two different ways: by financing the extraordinary social plans in favour of the workers made redundant, and by granting advances to the recovery plans of the companies resulting from the disposal of MFL assets.
With regard to the former, namely the financing by the State of the extraordinary social plans for redundancies, certain elements - supplementary severance payments, extraordinary early retirement expenses - which were assumed by the State and which represent normal expenditure for a company seeking to cut back staff, should therefore be attributed to the company being restructured. Notwithstanding, in the present case, it is not possible to maintain that the abovementioned State contribution constitutes aid relieving the new companies of expenses the old firms were obliged to bear in order to reduce the workforce. The purchasers of the assets had no legal obligation with regard to workers excluded from their take-over bids; for this reason, any aid granted to these redundant workers cannot be judged to favour the new companies in the sense of relieving them of expense they should have borne in order to reduce the workforce, since such reduction was in any case the consequence of the disposal made under the receivership system. Therefore, it may be concluded that, in the present case, as stated by the French authorities, the aid for the social plans was de facto intended to lessen the adverse consequences of the redundancies. without having any positive effect for the new companies.
With regard to the granting of the advances, two aid elements appear to be involved. On the one hand, the very fact of lending money free of interest relieves the new companies from normal costs linked to the financing of their recovery plans. On the other hand, a second element appears in the conditions established by the State for the repayment of the advances, with a long repayment period for the principle amount, and a conditional formulation linked to future cash flow that could eventually lead to the non-reimbursement of the advances, turning them in the end into pure subsidies. None of these conditions fits with those normally applicable to credit operations under market conditions. On the contrary, they have been deliberately established by the French authorities to facilitate the companies' recovery.
In conclusion, the State aid involved in the granting of FF 42 million in advances at other than market conditions can be judged to have facilitated the recovery of the MFL operations under the new legal entities resulting from the disposal of its assets.
It should be noted that the aid involved in the advances is illegal under Community law from the time it came into operation, because the French authorities did not give prior notification of the aid to the Commission in accordance with the provisions of Article 93 (3).
In this respect it has to be recalled that - in view of the imperative nature of the rules of procedure provided for in Article 93 (3) which are also of importance as regards public policy, the direct effect of which the Court of Justice has recognized in its Judgment of 19 June 1973 in Case 77/72 - the illegality of the aid at issue here cannot be remedied a posteriori.
The unlawfulness of all the aid at issue derives from the failure to comply with the rules of procedure as laid down in Article 93 (3). In addition, where aid is incompatible with the common market, the Commission - availing itself of the possibility afforded to it by the Court of Justice in its Judgment of 12 July 1973 in Case 70/72, confirmed in its Judgment of 24 February 1987 in Case 310/85 - can require Member States to recover from recipients the amount of any aid improperly paid to them.
IV
This aid has in turn distorted competition among Community producers. Where financial assistance from the State strengthens the position of certain enterprises competing with them in the Community, it must be deemed to affect those other enterprises. It should be noted in that respect that the machine-tool industry within the Community has suffered since the mid-seventies from a large reduction in size, mainly as a consequence of two factors: on the one hand, the world-wide economic recession that pushed orders down drastically, and, on the other, the increasing competition from third countries. Both facts have enhanced to a large extent the intense competition among Community producers. In consequence, any aid granted to a particular producer, relieving it of costs that normally should be borne by it, reinforces its position vis-à-vis other non-aided competitors and, therefore, artificially alters their respective competitive situation. On this score, the subsidiaries of MFL have traditionally operated in foreign markets in competition with other Community producers. In 1986, MFL exported 62 % of its production, directing 17 % of these exports to other Member States. Moreover, machine tools are tradable goods representing substantial intra-Community trade. According to Nimexe statistics intra-Community exports of machine tools amounted to ECU 2,268 million in 1988, of which France accounted for 6,5 %. For their part, imports into the Community from third countries amounted to ECU 4,032 million, for the same year.
V
Article 92
(1) of the EEC Treaty provides that aid meeting the criteria laid down therein is in principle incompatible with the common market. Notwithstanding, the Treaty provides for certain exceptions to that general rule.
The exceptions provided for in Article 92 (2) are not applicable in this case because of the nature of the assistance, which is not directed towards the attainment of the objectives listed therein.
For its part, Article 92 (3) lists aid which may be compatible with the common market. Compatibility with the Treaty must be determined in the context of the Community as a whole and not in that of a single Member State. In order to ensure the proper functioning of the common market, and having regard to the principle embodied in Article 3 (f), the exceptions provided for in Article 92 (3) must be construed narrowly when any aid scheme or individual aid award is scrutinized. In particular, they may be invoked only when the Commission is satisfied that without the aid, market forces alone would be insufficient to guide the aid recipients towards patterns of behaviour that would serve one of the objectives of the said exceptions.
With regard to the exceptions provided for in Article 92 (3) (a) and (c) for aid that promotes or facilitates the development of certain areas, none of the areas where the MFL plants are situated - Capdenac, Albert, Saint-Étienne - is a region characterized by an abnormally low standard of living or serious underemployment within the meaning of Article 92 (3) (a) as established by the Commission (1). Moreover, the advances were not granted under the corresponding regional aid schemes but on the basis of ad hoc decisions of the government. The aid involved does not have the requisite features of aid to facilitate the development of certain economic areas within the meaning of Article 92 (3) (c), inasmuch as the assistance granted was not conditional on investment or job creation as explained in the 1979 Commission communication on the principles of coordination of regional aid schemes (2).
As regards the exemptions provided for in Article 92 (3) (b), the aid in question was not intended to give effect to a project of common interest, or to remedy a serious disturbance in the economy of the Member State concerned nor did it have the characteristics of such projects. Moreover, the French authorities have not invoked this derogation.
Article 92
(3) (c) also lays down an exemption for aid to facilitate the development of certain activities, where such aid does not adversely affect trading conditions to an extent contrary to the common interest. In this regard, as mentioned above, the necessity of the aid should also be clearly demonstrated, that is to say, that without the aid the objective stated in the said exemption would not be reached. In the case at issue, the aid involved in the granting of advances at other than market conditions does not appear essential even as regards the basic aims pursued by the French authorities: to ensure both the continued operation of the undertakings disposed of, and the preservation of existing jobs. According to the financial forecasts provided by the French authorities, over the first three years of operation the new companies will record profits before tax amounting to about FF 42 million and FF 2 million, for BMO and BSA, respectively.
In the last year of this three-year period, the profits before tax will account for 4,3 and 6,8 % of their respective global income. In the light of these financial forecasts, the companies concerned appear capable of supporting by themselves the cost of advances granted at normal market credit conditions. In other words, even when regarded from the point of view of the objectives pursued by the French authorities, the aid in question constitutes a completely artificial benefit for which there is no justification. Furthermore, the aid cannot be justified from the Community point of view given the substantial distortion of competition caused by this artificial benefit in the context of the intense competition between producers in the machine-tool sector.
It should be remarked that, as a result of the significant aid received by MFL for modernization of industrial equipment and restructuring under the Machine-Tool Programme, no major future investments will be required by the new companies resulting from the disposals, in order to consolidate their competitive position, but rather rationalization and improvement in their management policies, as stated in the recovery plan submitted to the Commission.
It should also be recalled in this regard that the same companies have benefited from a variety of other circumstantial advantages. On the one hand the substantial capital gains arising from the take-over of assets for a largely symbolic price under the winding up proceedings of MFL. The capital gains resulting from the formation of Brisard Machine-Outil have been estimated by the company itself at FF 90 million; no estimates for Berthiez SA have been provided. On the other hand, these new companies have commenced operations with a better sized labour force. Such reduction was produced without expense to the companies, since the decisions of the Commercial Courts regarding the disposal of the assets under receivership proceedings broke the juridical links between these continuing companies and the workers made redundant as a result.
In view of all the above considerations, the Commission has come to the conclusion that the aid granted by the French Government to the continuing businesses of MFL carried on by the new companies arising from the disposal of its assets, does not qualify for the exemption provided for in Article 92 (3) (c) of the EEC Treaty.
Therefore, in summary, the aid in question has proved to be illegal under Community law because the French Government did not fulfil its obligations under Article 93 (3). As pointed out above, the Commission can in such cases require Member States to recover aid granted illegally from recipients. After examination it appears that the aid is incompatible with the common market in view of the fact that, having altered intra-Community trade within the meaning of Article 92 (1), it does not fall within any of the exemptions provided for in Article 92 (2) and (3). In consequence, the aid in question must be withdrawn,
HAS ADOPTED THIS DECISION:
Article 1
The public assistance to the companies arising from the disposal of the assets of MFL, namely Brisard Machine-Outil and Berthiez Productics, in the form of advances amounting to FF 25 million and FF 17 million respectively, on terms other than normal market terms, was granted illegally in breach of Article 93 (3), and is incompatible with the common market pursuant to Article 92 of the EEC Treaty.
Article 2
Accordingly, the aid elements of the public assistance referred to in Article 1 must be abolished with effect from the date on which it was granted.
Consequently, as regards the FF 25 million advance to Brisard Machine-Outil, the French Government is hereby requested to either convert it into a normal credit on market terms as regards both interest and repayment with effect from the date on which it was granted, or withdraw the advance completely, or take any other appropriate measure to ensure that the aid elements are wholly abolished.
On the contrary, the aid element in the FF 17 million advance to Berthiez Productics does not need to be abolished because the initial beneficiary went bankrupt, and the final beneficiary Berthiez SA did not take over the liabilities of Berthiez Productics.
Article 3
The French authorities shall inform the Commission, within two months from the notification of this Decision, of the measures taken to comply therewith. Should this Decision be implemented later than the said period, the national provisions regarding interest on arrears payable to the State will be applicable from the date of the Decision's notification.
Article 4
This Decision is addressed to the French Republic. Done at Brussels, 20 December 1989. | [
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Commission Decision
of 22 March 2001
approving the single programming document for Community structural assistance under Objective 2 for the North East of England region in the United Kingdom
(notified under document number C(2001) 565)
(Only the English text is authentic)
(2002/707/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds(1), and in particular Article 15(5) thereof,
After consultation of the Committee on the Development and Conversion of Regions, the Committee pursuant to Article 147 of the Treaty,
Whereas:
(1) Article 13 et seq. of Title II of Regulation (EC) No 1260/1999 lay down the procedure for preparing and implementing single programming documents.
(2) Article 15(1) and (2) of Regulation (EC) No 1260/1999 provides that, after consultation with the partners referred to in Article 8 of the Regulation, the Member State may submit to the Commission a development plan which is treated as a draft single programming document, and which contains the information referred to in Article 16 of the Regulation.
(3) Under Article 15(5) of Regulation (EC) No 1260/1999, on the basis of the regional development plan submitted by the Member State and within the partnership established in accordance with Article 8 of the Regulation, the Commission shall take a decision on the single programming document, in agreement with the Member State concerned and in accordance with the procedures laid down in Articles 48 to 51.
(4) The United Kingdom Government submitted to the Commission on 14 April 2000 an acceptable draft single programming document for the North East of England region fulfilling the conditions for Objective 2 pursuant to Article 4(1) and qualifying for transitional support pursuant to Article 6(2) of Regulation (EC) No 1260/1999. The draft contains the information listed in Article 16 of the Regulation, and in particular a description of the priorities selected and an indication of the financial contribution from the European Regional Development Fund (ERDF), the European Social Fund (ESF), the European Investment Bank (EIB) and the other financial instruments proposed for implementing the plan.
(5) Under Article 52(4) of Regulation (EC) No 1260/1999, as an acceptable plan was submitted between 1 January and 30 April 2000, the date from which expenditure under the plan is eligible shall be 1 January 2000. Under Article 30 of the Regulation, it is necessary to lay down the final date for the eligibility of expenditure.
(6) The single programming document has been drawn up in agreement with the Member State concerned and within the partnership.
(7) The Commission has satisfied itself that the single programming document is in accordance with the principle of additionality.
(8) Under Article 10 of Regulation (EC) No 1260/1999, the Commission and the Member State are required to ensure, in a manner consistent with the principle of partnership, coordination between assistance from the Funds and from the EIB and other existing financial instruments.
(9) The EIB has been involved in drawing up the single programming document in accordance with the provisions of Article 15(5) of Regulation (EC) No 1260/1999 and has declared itself prepared to contribute to its implementation in conformity with its statutory provisions.
(10) The financial contribution from the Community available over the entire period and its year-by-year breakdown are expressed in euro. The annual breakdown must be consistent with the relevant financial perspective. Under Article 7(7) of Regulation (EC) No 1260/1999, the Community contribution has already been indexed at a rate of 2 % per year. Under Article 7(7) and Article 44(2) of the Regulation, the Community contribution may be reviewed at mid-term, and not later than 31 March 2004, to take account of the effective level of inflation and the allocation of the performance reserve.
(11) Provision must be made for adapting the financial allocations of the priorities of this single programming document within certain limits to actual requirements reflected by the pattern of implementation on the ground, in agreement with the Member State concerned,
HAS ADOPTED THIS DECISION:
Article 1
The single programming document for Community structural assistance under Objective 2 in the North East of England region of the United Kingdom for the period 1 January 2000 to 31 December 2005 for transitional areas and 1 January 2000 to 31 December 2006 for fully eligible areas is hereby approved.
Article 2
1. In accordance with Article 19 of Regulation (EC) No 1260/1999, the single programming document includes the following elements:
(a) the strategy and priorities for the joint action of the Community Structural Funds and the Member State; their specific quantified targets; the ex ante evaluation of the expected impact, including on the environmental situation, and the consistency of the priorities with the economic, social and regional policies and the employment strategy of United Kingdom.
The priorities are as follows:
- establishing an entrepreneurial culture,
- SME growth and competitiveness,
- strategic employment opportunities,
- target communities,
- technical assistance;
(b) a summary description of the measures planned to implement the priorities, including the information needed to check compliance with the state aid rules under Article 87 of the Treaty,
(c) the indicative financing plan specifying for each priority and each year the financial allocation envisaged for the contribution from the ERDF, the ESF, the EIB and the other financial instruments and indicating separately the funding planned for the regions receiving transitional support in respect of Objective 5b and the total amounts of eligible public or equivalent expenditure and estimated private funding in the Member State. The total contribution from the ERDF and ESF planned for each year for the single programming document is consistent with the relevant financial perspectives,
(d) the provisions for implementing the single programming document including designation of the managing authority, a description of the arrangements for managing the single programming document and the use to be made of global grants, a description of the systems for monitoring and evaluation, including the role of the Monitoring Committee and the arrangements for the participation of the partners in that Committee;
(e) the ex ante verification of compliance with additionality and information on the transparency of financial flows;
(f) information on the resources required for preparing, monitoring and evaluating the assistance.
2. The indicative financing plan puts the total cost of the priorities selected for the joint action by the Community and the Member State at EUR 1893092000 for the whole period and the financial contribution from the Structural Funds at EUR 717000000.
The resulting requirement for national resources of EUR 877458000 from the public sector and EUR 298634000 from the private sector can be partly met by Community loans from the EIB and other lending instruments.
Article 3
1. The total assistance from the Structural Funds granted under the single programming document amounts to EUR 717000000. The procedure for granting the financial assistance, including the financial contribution from the Funds for the various priorities included in the single programming document, is set out in the financing plan annexed to this Decision.
2.
TABLE
3. During implementation of the financing plan, the total cost or Community financing of a given priority can be adjusted in agreement with the Member State by up to 25 % of the total Community contribution to the single programming document throughout the programme period or by up to EUR 30 million, whichever is the greater, without altering the total Community contribution referred to in paragraph 1.
Article 4
This Decision is without prejudice to the Commission's position on aid schemes falling within Article 87(1) of the Treaty that are included in this assistance and which have not yet been approved by the Commission. Submission of the application for assistance, the programming complement or a request for payment by the Member State does not replace the notification required by Article 88(3) of the Treaty.
Community financing of State aid falling within Article 87(1) of the Treaty, granted under aid schemes or in individual cases, requires prior approval by the Commission under Article 88 of the Treaty, except where the aid falls within the de minimis rule or is exempted under an exemption regulation adopted by the Commission under Council Regulation (EC) No 994/98 of 7 May 1998 on the application of Articles 87 and 88 to certain categories of horizontal aid(2). In the absence of such exemption or approval, aid is illegal and subject to the consequences set out in the procedural regulation for State aid, and its co-financing would be treated as an irregularity within the meaning of Articles 38 and 39 of Regulation (EC) No 1260/1999.
Consequently, the Commission will not accept requests for interim and final payments under Article 32 of the Regulation for measures being co-financed with new or altered aid, as defined in the procedural regulation for State aid, granted under aid schemes or in individual cases, until such aid has been notified to and formally approved by the Commission.
Article 5
The date from which expenditure shall be eligible is 1 January 2000. The closing date for the eligibility of expenditure shall be 31 December 2007 for transitional areas and 31 December 2008 for fully eligible areas. This date is extended to 30 April 2008 for expenditure incurred by bodies granting assistance under Article 9(1) of Regulation (EC) No 1260/1999 in transitional areas and to 30 April 2009 for such bodies in fully eligible areas.
Article 6
This Decision is addressed to the United Kingdom of Great Britain and Northern Ireland.
Done at Brussels, 22 March 2001. | [
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Council Directive 2002/8/EC
of 27 January 2003
to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 61(c) and 67 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:
(1) The European Union has set itself the objective of maintaining and developing an area of freedom, security and justice in which the free movement of persons is ensured. For the gradual establishment of such an area, the Community is to adopt, among others, the measures relating to judicial cooperation in civil matters having cross-border implications and needed for the proper functioning of the internal market.
(2) According to Article 65(c) of the Treaty, these measures are to include measures eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.
(3) The Tampere European Council on 15 and 16 October 1999 called on the Council to establish minimum standards ensuring an adequate level of legal aid in cross-border cases throughout the Union.
(4) All Member States are contracting parties to the European Convention for the Protection of Human Rights and Fundamental Freedom of 4 November 1950. The matters referred to in this Directive shall be dealt with in compliance with that Convention and in particular the respect of the principle of equality of both parties in a dispute.
(5) This Directive seeks to promote the application of legal aid in cross-border disputes for persons who lack sufficient resources where aid is necessary to secure effective access to justice. The generally recognised right to access to justice is also reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union.
(6) Neither the lack of resources of a litigant, whether acting as claimant or as defendant, nor the difficulties flowing from a dispute's cross-border dimension should be allowed to hamper effective access to justice.
(7) Since the objectives of this Directive cannot be sufficiently achieved by the Member States acting alone and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(8) The main purpose of this Directive is to guarantee an adequate level of legal aid in cross-border disputes by laying down certain minimum common standards relating to legal aid in such disputes. A Council directive is the most suitable legislative instrument for this purpose.
(9) This Directive applies in cross-border disputes, to civil and commercial matters.
(10) All persons involved in a civil or commercial dispute within the scope of this Directive must be able to assert their rights in the courts even if their personal financial situation makes it impossible for them to bear the costs of the proceedings. Legal aid is regarded as appropriate when it allows the recipient effective access to justice under the conditions laid down in this Directive.
(11) Legal aid should cover pre-litigation advice with a view to reaching a settlement prior to bringing legal proceedings, legal assistance in bringing a case before a court and representation in court and assistance with or exemption from the cost of proceedings.
(12) It shall be left to the law of the Member State in which the court is sitting or where enforcement is sought whether the costs of proceedings may include the costs of the opponent imposed on the recipient of legal aid.
(13) All Union citizens, wherever they are domiciled or habitually resident in the territory of a Member State, must be eligible for legal aid in cross-border disputes if they meet the conditions provided for by this Directive. The same applies to third-country nationals who habitually and lawfully reside in a Member State.
(14) Member States should be left free to define the threshold above which a person would be presumed able to bear the costs of proceedings, in the conditions defined in this Directive. Such thresholds are to be defined in the light of various objective factors such as income, capital or family situation.
(15) The objective of this Directive could not, however, be attained if legal aid applicants did not have the possibility of proving that they cannot bear the costs of proceedings even if their resources exceed the threshold defined by the Member State where the court is sitting. When making the assessment of whether legal aid is to be granted on this basis, the authorities in the Member State where the court is sitting may take into account information as to the fact that the applicant satisfies criteria in respect of financial eligibility in the Member State of domicile or habitual residence.
(16) The possibility in the instant case of resorting to other mechanisms to ensure effective access to justice is not a form of legal aid. But it can warrant a presumption that the person concerned can bear the costs of the procedure despite his/her unfavourable financial situation.
(17) Member States should be allowed to reject applications for legal aid in respect of manifestly unfounded actions or on grounds related to the merits of the case in so far as pre-litigation advice is offered and access to justice is guaranteed. When taking a decision on the merits of an application, Member States may reject legal aid applications when the applicant is claiming damage to his or her reputation, but has suffered no material or financial loss or the application concerns a claim arising directly out of the applicant's trade or self-employed profession.
(18) The complexity of and differences between the legal systems of the Member States and the costs inherent in the cross-border dimension of a dispute should not preclude access to justice. Legal aid should accordingly cover costs directly connected with the cross-border dimension of a dispute.
(19) When considering if the physical presence of a person in court is required, the courts of a Member State should take into consideration the full advantage of the possibilities offered by Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters(4).
(20) If legal aid is granted, it must cover the entire proceeding, including expenses incurred in having a judgment enforced; the recipient should continue receiving this aid if an appeal is brought either against or by the recipient in so far as the conditions relating to the financial resources and the substance of the dispute remain fulfilled.
(21) Legal aid is to be granted on the same terms both for conventional legal proceedings and for out-of-court procedures such as mediation, where recourse to them is required by the law, or ordered by the court.
(22) Legal aid should also be granted for the enforcement of authentic instruments in another Member State under the conditions defined in this Directive.
(23) Since legal aid is given by the Member State in which the court is sitting or where enforcement is sought, except pre-litigation assistance if the legal aid applicant is not domiciled or habitually resident in the Member State where the court is sitting, that Member State must apply its own legislation, in compliance with the principles of this Directive.
(24) It is appropriate that legal aid is granted or refused by the competent authority of the Member State in which the court is sitting or where a judgment is to be enforced. This is the case both when that court is trying the case in substance and when it first has to decide whether it has jurisdiction.
(25) Judicial cooperation in civil matters should be organised between Member States to encourage information for the public and professional circles and to simplify and accelerate the transmission of legal aid applications between Member States.
(26) The notification and transmission mechanisms provided for by this Directive are inspired directly by those of the European Agreement on the transmission of applications for legal aid, signed in Strasbourg on 27 January 1977, hereinafter referred to as "1977 Agreement". A time limit, not provided for by the 1977 Agreement, is set for the transmission of legal aid applications. A relatively short time limit contributes to the smooth operation of justice.
(27) The information transmitted pursuant to this Directive should enjoy protection. Since 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(5), and Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector(6), are applicable, there is no need for specific provisions on data protection in this Directive.
(28) The establishment of a standard form for legal aid applications and for the transmission of legal aid applications in the event of cross-border litigation will make the procedures easier and faster.
(29) Moreover, these application forms, as well as national application forms, should be made available on a European level through the information system of the European Judicial Network, established in accordance with Decision 2001/470/EC(7).
(30) 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(8).
(31) It should be specified that the establishment of minimum standards in cross-border disputes does not prevent Member States from making provision for more favourable arrangements for legal aid applicants and recipients.
(32) The 1977 Agreement and the additional Protocol to the European Agreement on the transmission of applications for legal aid, signed in Moscow in 2001, remain applicable to relations between Member States and third countries that are parties to the 1977 Agreement or the Protocol. But this Directive takes precedence over provisions contained in the 1977 Agreement and the Protocol in relations between Member States.
(33) The United Kingdom and Ireland have given notice of their wish to participate in the adoption of this Directive in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and to the Treaty establishing the European Community.
(34) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I
SCOPE AND DEFINITIONS
Article 1
Aims and scope
1. The purpose of this Directive is to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid in such disputes.
2. It shall apply, in cross-border disputes, to civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.
3. In this Directive, "Member State" shall mean Member States with the exception of Denmark.
Article 2
Cross-border disputes
1. For the purposes of this Directive, a cross-border dispute is one where the party applying for legal aid in the context of this Directive is domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced.
2. The Member State in which a party is domiciled shall be determined in accordance with Article 59 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters(9).
3. The relevant moment to determine if there is a cross-border dispute is the time when the application is submitted, in accordance with this Directive.
CHAPTER II
RIGHT TO LEGAL AID
Article 3
Right to legal aid
1. Natural persons involved in a dispute covered by this Directive shall be entitled to receive appropriate legal aid in order to ensure their effective access to justice in accordance with the conditions laid down in this Directive.
2. Legal aid is considered to be appropriate when it guarantees:
(a) pre-litigation advice with a view to reaching a settlement prior to bringing legal proceedings;
(b) legal assistance and representation in court, and exemption from, or assistance with, the cost of proceedings of the recipient, including the costs referred to in Article 7 and the fees to persons mandated by the court to perform acts during the proceedings.
In Member States in which a losing party is liable for the costs of the opposing party, if the recipient loses the case, the legal aid shall cover the costs incurred by the opposing party, if it would have covered such costs had the recipient been domiciled or habitually resident in the Member State in which the court is sitting.
3. Member States need not provide legal assistance or representation in the courts or tribunals in proceedings especially designed to enable litigants to make their case in person, except when the courts or any other competent authority otherwise decide in order to ensure equality of parties or in view of the complexity of the case.
4. Member States may request that legal aid recipients pay reasonable contributions towards the costs of proceedings taking into account the conditions referred to in Article 5.
5. Member States may provide that the competent authority may decide that recipients of legal aid must refund it in whole or in part if their financial situation has substantially improved or if the decision to grant legal aid had been taken on the basis of inaccurate information given by the recipient.
Article 4
Non-discrimination
Member States shall grant legal aid without discrimination to Union citizens and third-country nationals residing lawfully in a Member State.
CHAPTER III
CONDITIONS AND EXTENT OF LEGAL AID
Article 5
Conditions relating to financial resources
1. Member States shall grant legal aid to persons referred to in Article 3(1) who are partly or totally unable to meet the costs of proceedings referred to in Article 3(2) as a result of their economic situation, in order to ensure their effective access to justice.
2. The economic situation of a person shall be assessed by the competent authority of the Member State in which the court is sitting, in the light of various objective factors such as income, capital or family situation, including an assessment of the resources of persons who are financially dependant on the applicant.
3. Member States may define thresholds above which legal aid applicants are deemed partly or totally able to bear the costs of proceedings set out in Article 3(2). These thresholds shall be defined on the basis of the criteria defined in paragraph 2 of this Article.
4. Thresholds defined according to paragraph 3 of this Article may not prevent legal aid applicants who are above the thresholds from being granted legal aid if they prove that they are unable to pay the cost of the proceedings referred to in Article 3(2) as a result of differences in the cost of living between the Member States of domicile or habitual residence and of the forum.
5. Legal aid does not need to be granted to applicants in so far as they enjoy, in the instant case, effective access to other mechanisms that cover the cost of proceedings referred to in Article 3(2).
Article 6
Conditions relating to the substance of disputes
1. Member States may provide that legal aid applications for actions which appear to be manifestly unfounded may be rejected by the competent authorities.
2. If pre-litigation advice is offered, the benefit of further legal aid may be refused or cancelled on grounds related to the merits of the case in so far as access to justice is guaranteed.
3. When taking a decision on the merits of an application and without prejudice to Article 5, Member States shall consider the importance of the individual case to the applicant but may also take into account the nature of the case when the applicant is claiming damage to his or her reputation but has suffered no material or financial loss or when the application concerns a claim arising directly out of the applicant's trade or self-employed profession.
Article 7
Costs related to the cross-border nature of the dispute
Legal aid granted in the Member State in which the court is sitting shall cover the following costs directly related to the cross-border nature of the dispute:
(a) interpretation;
(b) translation of the documents required by the court or by the competent authority and presented by the recipient which are necessary for the resolution of the case; and
(c) travel costs to be borne by the applicant where the physical presence of the persons concerned with the presentation of the applicant's case is required in court by the law or by the court of that Member State and the court decides that the persons concerned cannot be heard to the satisfaction of the court by any other means.
Article 8
Costs covered by the Member State of the domicile or habitual residence
The Member State in which the legal aid applicant is domiciled or habitually resident shall provide legal aid, as referred to in Article 3(2), necessary to cover:
(a) costs relating to the assistance of a local lawyer or any other person entitled by the law to give legal advice, incurred in that Member State until the application for legal aid has been received, in accordance with this Directive, in the Member State where the court is sitting;
(b) the translation of the application and of the necessary supporting documents when the application is submitted to the authorities in that Member State.
Article 9
Continuity of legal aid
1. Legal aid shall continue to be granted totally or partially to recipients to cover expenses incurred in having a judgment enforced in the Member State where the court is sitting.
2. A recipient who in the Member State where the court is sitting has received legal aid shall receive legal aid provided for by the law of the Member State where recognition or enforcement is sought.
3. Legal aid shall continue to be available if an appeal is brought either against or by the recipient, subject to Articles 5 and 6.
4. Member States may make provision for the re-examination of the application at any stage in the proceedings on the grounds set out in Articles 3(3) and (5), 5 and 6, including proceedings referred to in paragraphs 1 to 3 of this Article.
Article 10
Extrajudicial procedures
Legal aid shall also be extended to extrajudicial procedures, under the conditions defined in this Directive, if the law requires the parties to use them, or if the parties to the dispute are ordered by the court to have recourse to them.
Article 11
Authentic instruments
Legal aid shall be granted for the enforcement of authentic instruments in another Member State under the conditions defined in this Directive.
CHAPTER IV
PROCEDURE
Article 12
Authority granting legal aid
Legal aid shall be granted or refused by the competent authority of the Member State in which the court is sitting, without prejudice to Article 8.
Article 13
Introduction and transmission of legal aid applications
1. Legal aid applications may be submitted to either:
(a) the competent authority of the Member State in which the applicant is domiciled or habitually resident (transmitting authority); or
(b) the competent authority of the Member State in which the court is sitting or where the decision is to be enforced (receiving authority).
2. Legal aid applications shall be completed in, and supporting documents translated into:
(a) the official language or one of the languages of the Member State of the competent receiving authority which corresponds to one of the languages of the Community institutions; or
(b) another language which that Member State has indicated it can accept in accordance with Article 14(3).
3. The competent transmitting authorities may decide to refuse to transmit an application if it is manifestly:
(a) unfounded; or
(b) outside the scope of this Directive.
The conditions referred to in Article 15(2) and (3) apply to such decisions.
4. The competent transmitting authority shall assist the applicant in ensuring that the application is accompanied by all the supporting documents known by it to be required to enable the application to be determined. It shall also assist the applicant in providing any necessary translation of the supporting documents, in accordance with Article 8(b).
The competent transmitting authority shall transmit the application to the competent receiving authority in the other Member State within 15 days of the receipt of the application duly completed in one of the languages referred to in paragraph 2, and the supporting documents, translated, where necessary, into one of those languages.
5. Documents transmitted under this Directive shall be exempt from legalisation or any equivalent formality.
6. The Member States may not charge for services rendered in accordance with paragraph 4. Member States in which the legal aid applicant is domiciled or habitually resident may lay down that the applicant must repay the costs of translation borne by the competent transmitting authority if the application for legal aid is rejected by the competent authority.
Article 14
Competent authorities and language
1. Member States shall designate the authority or authorities competent to send (transmitting authorities) and receive (receiving authorities) the application.
2. Each Member State shall provide the Commission with the following information:
- the names and addresses of the competent receiving or transmitting authorities referred to in paragraph 1,
- the geographical areas in which they have jurisdiction,
- the means by which they are available to receive applications, and
- the languages that may be used for the completion of the application.
3. Member States shall notify the Commission of the official language or languages of the Community institutions other than their own which is or are acceptable to the competent receiving authority for completion of the legal aid applications to be received, in accordance with this Directive.
4. Member States shall communicate to the Commission the information referred to in paragraphs 2 and 3 before 30 November 2004. Any subsequent modification of such information shall be notified to the Commission no later than two months before the modification enters into force in that Member State.
5. The information referred to in paragraphs 2 and 3 shall be published in the Official Journal of the European Communities.
Article 15
Processing of applications
1. The national authorities empowered to rule on legal aid applications shall ensure that the applicant is fully informed of the processing of the application.
2. Where applications are totally or partially rejected, the reasons for rejection shall be given.
3. Member States shall make provision for review of or appeals against decisions rejecting legal aid applications. Member States may exempt cases where the request for legal aid is rejected by a court or tribunal against whose decision on the subject of the case there is no judicial remedy under national law or by a court of appeal.
4. When the appeals against a decision refusing or cancelling legal aid by virtue of Article 6 are of an administrative nature, they shall always be ultimately subject to judicial review.
Article 16
Standard form
1. To facilitate transmission, a standard form for legal aid applications and for the transmission of such applications shall be established in accordance with the procedure set out in Article 17(2).
2. The standard form for the transmission of legal aid applications shall be established at the latest by 30 May 2003.
The standard form for legal aid applications shall be established at the latest by 30 November 2004.
CHAPTER V
FINAL PROVISIONS
Article 17
Committee
1. The Commission shall be assisted by a Committee.
2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply.
3. The Committee shall adopt its Rules of Procedure.
Article 18
Information
The competent national authorities shall cooperate to provide the general public and professional circles with information on the various systems of legal aid, in particular via the European Judicial Network, established in accordance with Decision 2001/470/EC.
Article 19
More favourable provisions
This Directive shall not prevent the Member States from making provision for more favourable arrangements for legal aid applicants and recipients.
Article 20
Relation with other instruments
This Directive shall, as between the Member States, and in relation to matters to which it applies, take precedence over provisions contained in bilateral and multilateral agreements concluded by Member States including:
(a) the European Agreement on the transmission of applications for legal aid, signed in Strasbourg on 27 January 1977, as amended by the additional Protocol to the European Agreement on the transmission of applications for legal aid, signed in Moscow in 2001;
(b) the Hague Convention of 25 October 1980 on International Access to Justice.
Article 21
Transposition into national law
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than 30 November 2004 with the exception of Article 3(2)(a) where the transposition of this Directive into national law shall take place no later than 30 May 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 a reference on the occasion of their official publication. The methods of making such a 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 22
Entry into force
This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.
Article 23
Addressees
This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community.
Done at Brussels, 27 January 2003. | [
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COUNCIL DECISION
of 30 March 1999
authorising, in accordance with Directive 92/81/EEC, certain Member States to apply and to continue to apply to certain mineral oils, reduced rates of excise duty or exemptions from excise duty, and amending Decision 97/425/EC
(1999/255/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 92/81/EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils(1), and in particular Article 8(4) and (5) thereof,
Having regard to the proposal from the Commission,
Whereas, pursuant to Article 8(4) of Directive 92/81/EEC, the Council, acting unanimously on a proposal from the Commission, authorised Member States to introduce exemptions or reductions in the excise duty charged on mineral oils for special policy considerations;
Whereas, pursuant to Article 3 of Decision 97/425/EC(2), the Council is required to decide before 31 December 1998 on the basis of a proposal from the Commission whether those derogations which expire on 31 December 1998 should be extended for a further specific period;
Whereas the Commission has been informed by Member States of their intention to continue to apply certain such exemptions or reductions which are already provided for in their taxation law or to introduce exemptions or reductions;
Whereas, for specific policy considerations, certain exemptions and reductions should continue to have effect until 31 December 1999; whereas there should be provisions for an extension beyond the abovementioned dates and whereas the reductions or exemptions are regularly reviewed by the Commission to ensure that they are compatible with the operation of the internal market and other objectives of the Treaty,
HAS ADOPTED THIS DECISION:
Article 1
By way of derogation from the obligations imposed by Council Directive 92/82/EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils(3), the following Member States are authorised to apply or to continue to apply the reductions in rates of excise duties or exemptions from excise duty herein specified until 31 December 1999 unless the Council unanimously determines before that date on a proposal from the Commission whether any or all of these derogations shall be modified or extended for a further specific period:
1. France:
- for consumption on the island of Corsica, provided that the reduced rates at all times respect the minimum rates of duty on mineral oils as provided for under Community law,
- for a differentiated diesel rate for commercial vehicles provided that the rate of duty respects the minimum rate provided for under Community law,
- for an exemption for heavy fuel oil used as fuel for the production of alumina in the region of Gardanne.
2. Italy:
- for a reduction in excise duty on petrol consumed on the territory of Friuli-Venezia Giulia, provided that the rate of duty respects the minimum rate provided for under Community law,
- for a reduction in the rate of duty for mineral oils consumed in the regions of Udine and Trieste, provided that the reduced rates at all times respect the minimum rates of duty on mineral oils as provided for under Community law,
- for an exemption from excise duty on mineral oils used as fuel for alumina production in Sardinia,
- for a reduction in the excise duty on fuel oil for the production of steam, and for gas oil used in ovens, for drying and "activating" molecular sieves in Reggio Calabria, provided that the rate of duty respects the minimum rate provided for under Community law.
3. The Netherlands:
- for a differentiated diesel rate for commercial vehicles, provided that the rate of duty respects the minimum rate provided for under Community law.
Article 2
This Decision shall apply from 1 January 1999.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 30 March 1999. | [
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COMMISSION DECISION
of 20 January 2006
laying down detailed rules for the implementation of Council Decision 2004/904/EC as regards procedures for making financial corrections in the context of actions co-financed by the European Refugee Fund
(notified under document number C(2006) 51/2)
(Only the Czech, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Swedish, Latvian, Lithuanian, Polish, Portuguese, Slovakian, Slovenian and Spanish texts are authentic)
(2006/400/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 2004/904/EC of 2 December 2004 establishing a European Refugee Fund for the period 2005 to 2010 (1), and in particular Article 25(3) and 26(5) thereof,
Having consulted the Committee established by Article 11(1) of Decision 2004/904/EC,
Whereas:
(1)
To allow recovery, pursuant to Article 24(1) of Decision 2004/904/EC, of amounts unduly paid, Member States should inform the Commission of cases of irregularities detected and the progress of administrative or legal proceedings.
(2)
Article 25(2) of Decision 2004/904/EC lays down that Member States must make the financial corrections required in connection with the individual or systemic irregularity by cancelling all or part of the Community contribution. To ensure that this provision is applied uniformly throughout the Community, it is necessary to lay down rules for determining the corrections to be made and to provide for the Commission to be informed.
(3)
If a Member State fails to comply with its obligations under Article 25 of Decision 2004/904/EC the Commission may itself make the financial corrections under Article 26 of Decision 2004/904/EC. To ensure that this provision is applied by the Commission in a transparent manner, it is necessary to lay down rules for determining the corrections to be made by the Commission and to provide for the Member States’ right to submit comments.
(4)
These rules should be in accordance with Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (2) (hereafter ‘Implementing Rules of the Financial Regulation’).
(5)
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom takes part in Council Decision 2004/904/EC and by consequence in this present decision.
(6)
In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Ireland takes part in Council Decision 2004/904/EC and by consequence in this present decison.
(7)
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark does not take part in Council Decision 2004/904/EC and is not bound by it nor by this present decision.
HAS ADOPTED THIS DECISION:
Article 1
1. Investigations of systematic irregularities under Article 26(1) of Decision 2004/904/EC shall cover all projects liable to be affected.
2. When cancelling all or part of the Community contribution, Member States shall take into account the nature and gravity of the irregularities and the financial loss to the fund.
3. Member States shall inform the Commission, in a list annexed to the report referred to in Article 28(2) of Decision 2004/904/EC, of any proceedings to cancel assistance initiated in the course of the preceding year.
Article 2
1. Where amounts need to be recovered following the cancellation of the Community contribution under Article 25(1) of Decision 2004/904/EC, the department or organisation responsible shall initiate the recovery procedure and inform the responsible authority. Information on recovery shall be passed on to the Commission and the accounts shall be kept in accordance with Article 3 of this Decision.
2. Member States shall inform the Commission in the report referred to in Article 28(2) of Decision 2004/904/EC how they have decided or propose to re-use the funds cancelled.
Article 3
1. Any functional body of the Member State or national public body designated by a Member State under Article 13, paragraph 1 of Decision 2004/904/EC (hereafter ‘Responsible Authority’) shall keep an account of amounts recoverable from payments of Community assistance that have already been made and shall ensure that the amounts are recovered without delay. After recovery, the Responsible Authority shall reduce its next declaration of expenditure to the Commission by an amount equal to the sums recovered, or, if this amount is insufficient, it shall reimburse the Community. The amounts to be recovered shall accrue interest from their due date at the rate laid down in accordance with Article 86 of the Implementing Rules of the Financial Regulation.
2. When submitting the report referred to in Article 28(2) of Decision 2004/904/EC, Member States shall send the Commission a list of irregularities detected, indicating the amounts recovered or awaiting recovery and if appropriate, any administrative or judicial proceedings launched with a view to recovering amounts unduly paid.
Article 4
1. The amount of financial corrections made by the Commission under Article 26(3b) of Decision 2004/904/EC for individual or systemic irregularities shall be assessed wherever possible and practicable on the basis of individual files and be equal to the amount of expenditure wrongly charged to the Fund, having regard to the principle of proportionality.
2. Where it is not possible or practicable to quantify precisely the amount of irregular expenditure or where it would be disproportionate to cancel all the expenditure concerned, the Commission shall base its financial corrections on:
(a)
extrapolation, using a representative sample of transactions that are homogeneous in nature;
or
(b)
a flat-rate, in which case it shall assess the seriousness of the infringement of the rules and the extent and financial implications of the irregularity established.
3. Where the Commission bases its position on facts established by auditors from outside its own departments it shall draw its own conclusions on the financial implications after examining the measures taken by the Member State concerned under Article 25(2) of Decision 2004/904/EC.
4. The period of time within which the Member State concerned may respond to a request under Article 26(3) of Decision 2004/904/EC shall be two months. In duly justified cases, a longer period may be agreed by the Commission.
5. Where the Commission proposes financial corrections determined by extrapolation or at a flat rate, the Member State shall be given the opportunity to demonstrate, on the basis of an examination of the files concerned, that the actual extent of irregularity was less than the Commission’s assessment. In agreement with the Commission, the Member State may limit the scope of this examination to an appropriate proportion or sample of the files concerned. Except in duly justified cases, the time allowed for this examination shall not exceed a further period of two months after the two-month period referred to in paragraph 4. The Commission shall take account of any evidence supplied by the Member State within the time-limits.
6. Where the Commission suspends payments under Article 26(1) of Decision 2004/904/EC or where after expiry of the period referred to in paragraph 4, the reasons for the suspension remain or the Member State concerned has not notified the Commission of the measures taken to correct the irregularities, Article 26(3) will apply.
7. Guidelines on the principles, criteria and indicative scales to be applied by Commission departments in determining the flat-rate corrections are set out in the Annex to this Decision.
Article 5
1. Any repayment to the Commission under Article 26(3) of Decision 2004/904/EC shall be made by the deadline set in the recovery order drawn up in accordance with Article 81 of the Implementing Rules of the Financial Regulation.
2. Any delay in effecting repayment shall give rise to interest on account of late payment, starting on the due date referred to in paragraph 1 and ending on the date of actual repayment. The applicable rate of interest shall be that referred to in Article 3(1) of this Decision.
3. A financial correction under Article 26(2) of Decision 2004/904/EC shall not prejudice the Member State’s obligation to pursue recoveries under Article 25(2) of Decision 2004/904/EC and Article 2(1) of this Decision and to recover State aid under Article 14 of Regulation (EC) No 659/1999.
Article 6
Member States may apply national rules on financial corrections that are more rigorous than those prescribed here.
Article 7
The present decision is addressed to the Kingdom of Belgium, the Czech Republic, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland.
Done at Brussels, 20 January 2006. | [
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REGULATION (EC) No 336/2006 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 15 February 2006
on the implementation of the International Safety Management Code within the Community and repealing Council Regulation (EC) No 3051/95
(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 80(2) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee (1),
After consulting the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
Whereas:
(1)
The International Management Code for the Safe Operation of Ships and for Pollution Prevention, hereinafter referred to as ‘the ISM Code’, was adopted by the International Maritime Organisation (IMO) in 1993. This Code gradually became mandatory for most ships sailing on international voyages with the adoption in May 1994 of Chapter IX ‘Management for the Safe Operation of Ships’ of the International Convention for the Safety of Life at Sea (SOLAS), 1974.
(2)
The ISM Code was amended by the IMO by Resolution MSC.104(73), adopted on 5 December 2000.
(3)
Guidelines on Implementation of the ISM Code by Administrations were adopted by IMO Resolution A.788(19) on 23 November 1995. These Guidelines were amended by Resolution A.913(22), adopted on 29 November 2001.
(4)
Council Regulation (EC) No 3051/95 of 8 December 1995 on the safety management of roll-on/roll-off passenger ferries (ro-ro ferries) (3) made the ISM Code mandatory at Community level with effect from 1 July 1996 for all ro-ro passenger ferries operating on a regular service to and from ports of the Member States, on both domestic and international voyages and regardless of their flag. This was a first step towards ensuring uniform and coherent implementation of the ISM Code in all Member States.
(5)
On 1 July 1998 the ISM Code became mandatory under the provisions of Chapter IX of SOLAS for companies operating passenger ships, including high-speed passenger craft, oil tankers, chemical tankers, gas carriers, bulk carriers and cargo high-speed craft of 500 gross tonnage and upwards, on international voyages.
(6)
On 1 July 2002 the ISM Code became mandatory for companies operating other cargo ships and mobile offshore drilling units of 500 gross tonnage and upwards, on international voyages.
(7)
The safety of human life at sea and the protection of the environment may be effectively enhanced by applying the ISM Code strictly and on a mandatory basis.
(8)
It is desirable to apply directly the ISM Code to ships flying the flag of a Member State as well as to ships, regardless of their flag, engaged exclusively on domestic voyages or on a regular shipping service operating to or from ports of the Member States.
(9)
The adoption of a new Regulation with direct applicability should ensure the enforcement of the ISM Code on the understanding that it is left to the Member States to decide whether to implement the Code for ships, regardless of their flag, operating exclusively in port areas.
(10)
Consequently, Regulation (EC) No 3051/95 should be repealed.
(11)
If a Member State considers it difficult in practice for companies to comply with specific provisions of Part A of the ISM Code for certain ships or categories of ships exclusively engaged on domestic voyages in that Member State, it may derogate wholly or partly from those provisions by imposing measures ensuring equivalent achievement of the objectives of the Code. It may, for such ships and companies, establish alternative certification and verification procedures.
(12)
It is necessary to take into account Council Directive 95/21/EC of 19 June 1995 on port State control of shipping (4).
(13)
It is also necessary to take into account Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (5), in order to define the recognised organisations for the purpose of this Regulation, and Council Directive 98/18/EC of 17 March 1998 on safety rules and standards for passenger ships (6), for the purpose of establishing the scope of application of this Regulation as regards passenger ships engaged on domestic voyages.
(14)
The measures necessary for amending Annex II should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (7).
(15)
Since the objectives of this Regulation, namely to enhance the safety management and safe operation of ships as well as the prevention of pollution from ships, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives,
HAVE ADOPTED THIS REGULATION:
Article 1
Objective
The objective of this Regulation is to enhance the safety management and safe operation of ships as well as the prevention of pollution from ships, referred to in Article 3(1), by ensuring that companies operating those ships comply with the ISM Code by means of:
(a)
the establishment, implementation and proper maintenance by companies of the shipboard and shore-based safety management systems; and
(b)
the control thereof by flag and port State administrations.
Article 2
Definitions
For the purpose of this Regulation the following definitions shall apply:
(1)
‘the ISM Code’ means the International Management Code for the Safe Operation of Ships and for Pollution Prevention adopted by the International Maritime Organisation by Assembly Resolution A.741(18) of 4 November 1993, as amended by Maritime Safety Committee Resolution MSC.104(73) of 5 December 2000 and set out in Annex I to this Regulation, in its up-to-date version;
(2)
‘recognised organisation’ means a body recognised in accordance with Directive 94/57/EC;
(3)
‘company’ means the owner of the ship or any other organisation or person, such as the manager or the bareboat charterer, who has assumed responsibility for the operation of the ship from the shipowner and who, on assuming such responsibility, has agreed to take over all the duties and responsibilities imposed by the ISM Code;
(4)
‘passenger ship’ means a ship, including a high-speed craft, carrying more than 12 passengers, or a passenger submersible craft;
(5)
‘passenger’ means every person other than:
(a)
the master and the members of the crew or other persons employed or engaged in any capacity on board a ship on the business of that ship; and
(b)
a child under one year of age;
(6)
‘high-speed craft’ means a high-speed craft as defined in Regulation X-1/2 of SOLAS, in its up-to-date version. For high-speed passenger craft, the limitations indicated in Article 2(f) of Directive 98/18/EC shall apply;
(7)
‘cargo ship’ means a ship, including a high-speed craft, which is not a passenger ship;
(8)
‘international voyage’ means a voyage by sea from a port of a Member State or any other State to a port outside that State, or vice versa;
(9)
‘domestic voyage’ means a voyage in sea areas from a port of a Member State to the same or another port within that Member State;
(10)
‘regular shipping service’ means a series of ship crossings operated so as to serve traffic between the same two or more points, either:
(a)
according to a published timetable; or
(b)
with crossings so regular or frequent that they constitute a recognisable systematic series;
(11)
‘ro-ro passenger ferry’ means a seagoing passenger vessel as defined in Chapter II-1 of SOLAS, in its up-to-date version;
(12)
‘passenger submersible craft’ means a passenger-carrying mobile vessel which primarily operates under water and relies on surface support, such as a surface ship or shore-based facilities, for monitoring and for one or more of the following:
(a)
recharging of power supply;
(b)
recharging high pressure air;
(c)
recharging life-support;
(13)
‘mobile offshore drilling unit’ means a vessel capable of engaging in drilling operations for the exploration for or exploitation of resources beneath the seabed such as liquid or gaseous hydrocarbons, sulphur or salt;
(14)
‘gross tonnage’ means the gross tonnage of a ship determined in accordance with the International Convention on Tonnage Measurement of Ships, 1969 or, in the case of ships engaged exclusively on domestic voyages and not measured in accordance with the said Convention, the gross tonnage of the ship determined in accordance with national tonnage measurement regulations.
Article 3
Scope
1. This Regulation shall apply to the following types of ships and to companies operating them:
(a)
cargo ships and passenger ships, flying the flag of a Member State, engaged on international voyages;
(b)
cargo ships and passenger ships engaged exclusively on domestic voyages, regardless of their flag;
(c)
cargo ships and passenger ships operating to or from ports of the Member States, on a regular shipping service, regardless of their flag;
(d)
mobile offshore drilling units operating under the authority of a Member State.
2. This Regulation shall not apply to the following types of ships or to the companies operating them:
(a)
ships of war and troopships and other ships owned or operated by a Member State and used only on government non-commercial service;
(b)
ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts and pleasure craft, unless they are or will be crewed and carrying more than 12 passengers for commercial purposes;
(c)
fishing vessels;
(d)
cargo ships and mobile offshore drilling units of less than 500 gross tonnage;
(e)
passenger ships, other than ro-ro passenger ferries, in sea areas of Class C and D as defined in Article 4 of Directive 98/18/EC.
Article 4
Compliance
Member States shall ensure that all companies operating ships falling within the scope of this Regulation comply with the provisions of this Regulation.
Article 5
Safety management requirements
The ships referred to in Article 3(1) and the companies operating them shall comply with the requirements of Part A of the ISM Code.
Article 6
Certification and verification
For the purposes of certification and verification, Member States shall comply with the provisions of Part B of the ISM Code.
Article 7
Derogation
1. A Member State may, if it considers it difficult in practice for companies to comply with paragraphs 6, 7, 9, 11 and 12 of Part A of the ISM Code for certain ships or categories of ships exclusively engaged on domestic voyages in that Member State, derogate wholly or partly from those provisions by imposing measures ensuring equivalent achievement of the objectives of the Code.
2. A Member State may, for ships and companies for which a derogation has been adopted by virtue of paragraph 1, if it considers it difficult in practice to apply the requirements laid down in Article 6, establish alternative certification and verification procedures.
3. In the circumstances set out in paragraph 1 and, if applicable, paragraph 2, the following procedure shall apply:
(a)
the Member State concerned shall notify the Commission of the derogation and of the measures which it intends to adopt;
(b)
if, within six months of the notification, it is decided, in accordance with the procedure referred to in Article 12(2), that the proposed derogation is not justified or that the proposed measures are not sufficient, the Member State shall be required to amend or refrain from adopting the proposed provisions;
(c)
the Member State shall make any adopted measures public with a direct reference to paragraph 1 and, if applicable, paragraph 2.
4. Following a derogation under paragraph 1 and, if applicable, paragraph 2, the Member State concerned shall issue a certificate in accordance with the second subparagraph of Annex II, Part B, Section 5, indicating the applicable operational limitations.
Article 8
Validity, acceptance and recognition of certificates
1. The Document of Compliance shall remain valid for up to five years from the date of its issue. The Safety Management Certificate shall remain valid for up to five years from the date of its issue.
2. In cases of renewal of the Document of Compliance and the Safety Management Certificate, the relevant provisions of Part B of the ISM Code shall apply.
3. Member States shall accept Documents of Compliance, Interim Documents of Compliance, Safety Management Certificates and Interim Safety Management Certificates issued by the administration of any other Member State or on behalf of this administration by a recognised organisation.
4. Member States shall accept Documents of Compliance, Interim Documents of Compliance, Safety Management Certificates and Interim Safety Management Certificates issued by, or on behalf of, the administrations of third countries.
However, for ships engaged on a regular shipping service, compliance with the ISM Code by the Documents of Compliance, Interim Documents of Compliance, Safety Management Certificates and Interim Safety Management Certificates issued on behalf of administrations of third countries shall be verified, by any appropriate means, by or on behalf of the Member State(s) concerned, unless they were issued by the administration of a Member State or by a recognised organisation.
Article 9
Penalties
Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all the measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
Article 10
Reporting
1. Member States shall report to the Commission every two years on the implementation of this Regulation.
2. The Commission shall, in accordance with the procedure referred to in Article 12(2), establish a harmonised specimen form for such reports.
3. The Commission shall, with the assistance of the European Maritime Safety Agency and within six months of receiving the reports from Member States, prepare a consolidated report concerning the implementation of this Regulation, with any proposed measures, if appropriate. This report shall be addressed to the European Parliament and the Council.
Article 11
Amendments
1. Amendments to the ISM Code may be excluded from the scope of this Regulation pursuant to Article 5 of Regulation (EC) No 2099/2002 of the European Parliament and of the Council of 5 November 2002 establishing a Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) (8).
2. Any amendment to Annex II shall be made in accordance with the procedure referred to in Article 12(2).
Article 12
Committee
1. The Commission shall be assisted by the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS) set up under Article 3 of Regulation (EC) No 2099/2002.
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at two months.
3. The Committee shall adopt its Rules of Procedure.
Article 13
Repeal
1. Regulation (EC) No 3051/95 shall be repealed with effect from 24 March 2006.
2. Interim Documents of Compliance, Interim Safety Management Certificates, Documents of Compliance and Safety Management Certificates issued before 24 March 2006 shall remain valid until their expiry or until their next endorsement.
Article 14
Entry into force
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
As concerns cargo and passenger ships, which are not already required to comply with the ISM Code, this Regulation shall apply as from 24 March 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 15 February 2006. | [
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Commission Regulation (EC) No 1636/2000
of 25 July 2000
fixing the coefficients applicable to cereals exported in the form of Irish whiskey for the period 2000/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EEC) No 2825/93 of 15 October 1993 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards the fixing and granting of adjusted refunds in respect of cereals exported in the form of certain spirit drinks(1), as last amended by Regulation (EC) No 1633/2000(2), and in particular Article 5 thereof,
Whereas:
(1) Article 4(1) of Regulation (EEC) No 2825/93 provides that the quantities of cereals eligible for the refund are to be the quantities placed under control and distilled, weighted by a coefficient to be fixed annually for each Member State concerned. That coefficient expresses the ratio between the total quantities exported and the total quantities marketed of the spirituous beverage concerned on the basis of the trend noted in those quantities during the number of years corresponding to the average ageing period of the spirituous beverage in question. In view of the information provided by Ireland on the period 1 January to 31 December 1999, the average ageing period in 1999 was five years for Irish whiskey. The coefficients for the period 1 July 1999 to 30 September 2001 should be fixed.
(2) Article 10 of Protocol 3 to the Agreement on the European Economic Area(3) precludes the grant of refunds for exports to Liechtenstein, Iceland and Norway. Therefore, pursuant to Article 7(2) of Regulation (EEC) No 2825/93, account should be taken of this in the calculation of the coefficient for 2000/2001.
(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
For the period 1 July 2000 to 30 September 2001, the coefficients provided for in Article 4 of Regulation (EEC) No 2825/93 applying to cereals used in Ireland for manufacturing Irish whiskey shall be as set out 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 with effect from 1 July 2000.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 July 2000. | [
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*****
COMMISSION DECISION
of 13 March 1986
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
(121 derogation)
(Only the Danish text is authentic)
(86/133/ECSC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Articles 2 to 5, 8, 71 and 74 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 No 81/772/ECSC (2), and in particular Article 3 thereof,
Whereas Denmark has shown the existence of exceptional and temporary difficulties in obtaining supplies for its transforming industry on the Community market with special sheet for the manufacture of preserved-food cans; whereas such difficulties, which seemed likely to come to an end by the end of 1985, are still prevalent but seem capable of being solved by the end of the first half of 1986;
Whereas by Decision No 85/496/ECSC (3) the Commission authorized Denmark to import duty-free from third countries certain quantities of special sheet during the period 1 July 1985 to 31 December 1985 and it is now appropriate to extend the operation of this Decision until 30 June 1986;
Whereas this exceptional import is justified for the reasons of commercial policy provided for in Article 3 of recommendation No 1/64; whereas the Commission may therefore grant a derogation from the said recommendation;
Whereas the Governments of the Member States have been consulted on the abovementioned request,
HAS ADOPTED THIS DECISION:
Article 1
Article 3 of Decision No 85/496/ECSC of 10 July 1985 is hereby replaced by the following, with effect from 1 January 1986:
'Article 3
This Decision shall apply from 1 July 1985 to 30 June 1986'.
Article 2
This Decision is addressed to the Kingdom of Denmark.
Done at Brussels, 13 March 1986. | [
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COMMISSION DECISION
of 22 June 2006
on the ad hoc financing of Dutch public service broadcasters C 2/2004 (ex NN 170/2003)
(notified under document number C (2006)2084)
(Only the Dutch text is authentic)
(Text with EEA relevance)
(2008/136/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),
Having regard to their comments,
Whereas:
I. PROCEDURE AND BACKGROUND
1 PROCEDURE
(1)
In the course of 2002 (2) and 2003 (3) the Commission received several complaints alleging that the public funding system in place for Dutch public broadcasters constitutes unlawful and incompatible state aid within the meaning of Article 87(1) of the EC Treaty.
(2)
In the course of the preliminary investigation of the complaints, the Commission received additional information from the complainants (4), as well as the Dutch authorities (5).
(3)
Following the preliminary assessment of the alleged aid measures, the Commission informed the Netherlands, by letter dated 3 February 2004, that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty with respect to certain measures which could be qualified as new aid.
(4)
The Commission decision to initiate the procedure was published in the Official Journal of the European Union (6). The Commission invited interested parties to submit their comments on the aid.
(5)
The Netherlands responded to the decision to open proceedings by letter dated 30 April 2004. Moreover, the Commission received comments from 11 interested parties (7). By letter of 29 April 2004 the Commission forwarded the comments to the Netherlands. The reaction by the Dutch authorities was received by letter dated 13 August 2004.
(6)
The Commission asked additional questions to the Dutch authorities by letters of 4 January 2005 and 25 May 2005, to which the Dutch authorities responded by letters of 27 January 2005 and 25 July 2005. Further information was received from one of the complainants (De Telegraaf) on 25 July 2005 and from the Dutch authorities on 2 September. The Commission asked the Dutch authorities for further clarification by e-mails on 22 November 2005, to which the authorities responded on 25 November 2005. The Commission decided after a meeting with the authorities that further clarification was necessary. To this end a request for information was sent to the Dutch authorities on 22 December 2005, to which the Dutch authorities, having been granted a delay, responded on 3 February 2006. Regarding this reply further e-mails were exchanged between the Dutch authorities and the Commission in February 2006 and April 2006.
(7)
A meeting between the Dutch authorities and the Commission took place on 24 September 2004. A meeting with De Telegraaf took place on 27 October 2004. A meeting with Broadcast Partners took place on 5 January 2005. A meeting between RTL and the Commission took place on 27 July 2005 and between VESTRA and the Commission on 23 September 2005. The Commission had another meeting with the Dutch authorities on 1 February and 14 February 2006.
(8)
In addition to this procedure on ‘new aid’, the financing of the public service broadcasters through annual state payments and the Stimulation Fund (Stifo, Stichting Stimuleringsfonds Nederlandse Culturele Omroepproducties) (8) is being assessed in a separate ‘existing aid’ procedure (cf. state aid No. E-5/2005). In this Decision the Commission refers to the measures which are the object of the ‘existing aid procedure’ only insofar as necessary to provide an overall picture of the financing of public broadcasting. This Decision does not, however, concern the issue of compatibility with state aid rules of the regular annual payments and of the payments from the Stimulation Fund.
(9)
This Decision will also be limited to assessing the financing of the public service broadcasters' core activities (the so-called main tasks). Side activities, like the new media services, the provision of SMS and i-mode, are not, therefore, examined. Similarly, this Decision will not deal with the investment by NOS in the network operator Nozema, which according to complaints might not have been done on market terms. These issues will be dealt with separately.
(10)
Finally, the decision to open the formal investigation procedure covered the procedure as from 1992. Nevertheless, it appears that the first ad hoc payments were made only in 1994. Furthermore, figures up to 2005 are now available and should be taken into account. The period covered by the decision would therefore range from 1994 - when the first ad hoc payment was made - to 2005, the last year for which final figures are available. It should be noted that the Dutch authorities invited the Commission also to take into account 2006. However, the figures for 2006 are only provisional and cannot, therefore, be taken into account.
2 DETAILED DESCRIPTION OF THE PUBLIC BROADCASTING SYSTEM
(11)
Section 2.1 of this Chapter presents the actors in the (public) broadcasting sector. This is followed in section 2.2 by a description of the different elements of the financing system for the Dutch broadcasting sector in general. In connection with this, the legal provisions entrusting the broadcasters with a public service mission are described, the different financing mechanisms (annual payments and ad hoc payments) are spelled out and, finally, the reserves the public broadcasters have built up and use for the fulfilment of their public service mission are explained. The commercial activities of the Dutch public broadcasters are then discussed in section 2.5. Section 2.6 explains the acquisition of football rights by the NOS and section 2.7 deals with the relation between broadcasters and cable operators. Finally, section 2.8 sets out which measures are the subject of this procedure.
2.1 Actors in the (public) broadcasting sector
(12)
The public service broadcasting system consists of different organisations, including eight private associations (private broadcasters with members entrusted with a public service mission) and ten private foundations (private broadcasters without members entrusted with a public service mission) (9).
(13)
Besides the broadcasters mentioned in paragraph 12, the public service broadcasting system includes another actor - the NOS - which performs a dual role. The first role is that of a public service broadcaster, responsible for TV and radio programmes (under the name of ‘NOS RTV’). The second role is that of coordinator of the entire public service broadcasting system and is carried out by the management board of the NOS (the so-called ‘Publieke Omroep’ hereinafter ‘PO’). The PO, whose functions and tasks are enshrined in the Media Act, stimulates cooperation between public broadcasters, coordinates the three public TV channels and reports twice a year on the public broadcasters' activities to the Media Authority.
(14)
The NOS receives funding from the media budget for both the tasks performed as PO and those performed as NOS RTV.
(15)
The public service TV-programmes are broadcast by the public service broadcasters over three public channels (10).
(16)
The Dutch Broadcast Production Organisation (Nederlands Omroepbedrijf, hereinafter ‘NOB’) is also part of the public broadcasting system. The NOB carries out the recording, transmission preparation and actual transmission of sound, moving pictures and data to all possible distribution channels. The NOB provides these services to commercial broadcasters and public service broadcasters. The services provided to the public service broadcasters are considered as public services by the Dutch government and are publicly funded (11).
(17)
A separate foundation (Stichting Ether Reclame, hereinafter ‘STER’) is exclusively responsible for the sale of advertising space and the broadcasting of advertising on the public channels. The STER is responsible for the broadcasting time which it has been allocated. The revenues generated by the STER are transferred directly to the State.
(18)
In addition to the national public service broadcasters, there are several commercial broadcasters operating on a national level. Examples of these commercial broadcasters are RTL (RTL 4, 5 and 7, all from the CLT-UFA group), SBS6, NET5 and Veronica (from the SBS Broadcasting group) and Talpa (Talpa Media Holding). They generate their revenues mainly through TV advertising.
2.2 Statutory regulation of public service broadcasting
(19)
The broadcasting sector is currently regulated by the Media Act of 21 April 1987 (Stb. 1987, 249) and the Media Decree. Public broadcasters are allowed by law to perform four categories of activities, which are defined in the current Media Act as ‘main task’, ‘side tasks’, ‘side activities’ and ‘association activities’. The public broadcasters are eligible for state funding for the ‘main task’ and ‘side tasks’.
2.2.1 Legal definitions
(20)
Article 13(c)(1) of the Media Act describes the ‘main task’ of the public service broadcasting as being:
a)
to ensure a pluralistic and high quality offering of programmes for general broadcast in the areas of information, culture, education and entertainment on national, regional and local level and transmitting those or having them transmitted on open channels;
b)
to perform all activities relating to the offering of programmes and the transmission necessary in that respect;
c)
to broadcast programmes destined for countries and areas outside the Netherlands and for Dutch citizens staying abroad.”
(21)
Article 13c(2) of the Media Act lays down the general requirements for the programmes to be broadcast by the public broadcasters. The programmes must ‘give an image of society in a balanced way and of interests and viewpoints on society, culture and philosophy within the population; and
a.
the programmes have to be accessible to the whole population in the relevant areas;
b.
they contribute to pluralism and cultural diversity within the Netherlands (…)’.
(22)
In addition, the total programming time which should be allocated to different categories, such as culture, education, and entertainment, is regulated by means of prescribed percentages (12).
(23)
Article 16 of the Media Act provides that certain tasks shall be performed by the NOS RTV and lays down the details of these tasks. The provision of sports coverage, including, but not limited to, competition and cup matches and international events is covered. The percentage of total broadcasting time which should be devoted to such sports events is not pre-determined by statute. In practice the NOS RTV aims to devote 9-11 % of total broadcasting time to sports programmes (13).
(24)
Broadcasting associations are entitled to broadcasting time for the provision of national TV-programmes and have the right, under Article 31(4) of the Media Act, to receive state funding for providing the programme.
(25)
In accordance with Article 13c(3) of the Media Act, which was introduced in 2000, the public broadcasting system ‘can also fulfil its task, as mentioned in the first paragraph, by providing means of supply and distribution of programme materials, other than those included within paragraph (1)(a)’. In other words, the public service broadcasters can broadcast the public service content, mentioned in paragraph 20 as a main task, on other media platforms, such as the Internet.
(26)
These so-called ‘side tasks’ must comply with a number of conditions. According to Article 55 of the Media Act, for example, they must not serve to make profits for third parties. Maintaining a website or a theme channel are examples of these side tasks.
(27)
It should also be mentioned that the exploitation of both the ‘main’ and the ‘side’ tasks generate revenues for the public service broadcasters to be used for public service purposes (14).
(28)
The Dutch public service broadcasters can also perform activities which are defined as side activities and association activities. Side activities (15) must comply with a number of statutory conditions. Examples of such side activities include the sale of programme guides, sponsoring, sale of programme rights and programme-related material, leasing office space and organising drive-in shows.
(29)
Other activities are the ‘association activities’, which are activities performed by the broadcasting associations for their members. They include publishing magazines, and organising and selling travel arrangements.
2.2.2 Entrustment and supervision
(30)
An independent Media Authority (Commissariaat voor de Media) is responsible for ensuring compliance with the programming and financial requirements of the Media Act and the implementing legislation (Article 9 of the Media Act).
(31)
The Media Authority has a legal duty, laid down in Article 134 of the Media Act, to ensure that the public broadcasters fulfil their obligations, including the quota laid down for different types of programmes. The Media Authority can impose fines if the obligations are not respected. It also checks whether the broadcasters are complying with the legal restrictions on sponsoring and advertising.
(32)
On the basis of the accountants' reports submitted, the Authority checks every year whether the annual accounts of the public broadcasters comply with the requirements of the Media Act, the Media Decree and the Financial Reporting Manual. If they do, the Authority approves the budgeted amounts for regular programme provision (Articles 100 and 101 of the Media Act).
2.3 Sources of funding of public service broadcasters
(33)
The public service broadcasters' main sources of funding are the annual payments received by the State. In order to absorb budgetary fluctuations, public service broadcasters are allowed to keep certain reserves. In addition, the public service broadcasters have, since 1994, received ad hoc payments.
(34)
Since the assessment of the compatibility of the ad hoc funding cannot be carried out without taking into account the other sources of public funding, the following description covers both the annual payments and the ad hoc payments, even though the annual payments and the payments from the Stifo are not subject to this Decision (see paragraph 8).
2.3.1 Annual payments
(35)
The Dutch public broadcasters receive annual financial contributions from the State's media budget. Over the period 1994-2005, these payments totalled approximately €7,1 billion. From this amount, approximately €819,6 million was transferred to the PO for its management and coordinating role; the remaining €6,3 billion was paid to the individual broadcasters. The media budget is funded from several sources: the State Broadcasting Contribution (collected from taxpayers), advertising revenues from STER and interest revenues from the General Broadcasting Fund (Algemene Omroepreserve, hereinafter ‘AOR’) (16). The level of the media budget sets a ceiling on the amount of annual funding that could be made available to the public broadcasters and the other media organisations.
2.3.2 Stifo
(36)
In addition to the annual payments, the public broadcasters have received payments from Stifo (Stimulation Fund for Cultural Productions). The funds granted from Stifo qualify as a state aid measure, but the measure was approved by the Commission (NN 32/91). The Stifo aid measure is thus to be considered as existing state aid. The Stifo payments to the individual public service broadcasters (the PO did not receive any payments from Stifo) amounted to €155 million in the period under review.
2.3.3 Ad hoc payments
(37)
In addition to the transfers mentioned in paragraphs 34 and 35 - which are considered to be the public service broadcasters' regular sources of funding, the public broadcasters were granted several payments on an ad hoc basis. These were either made directly to the broadcasters or channelled through special funds and reserves.
2.3.3.1 Matching funds payments
(38)
The matching funds are an earmarked part of the media budget. In the period 1996-1998, an amount of € [...] (17) million was transferred from the matching funds to NOS RTV. The matching funds were introduced in 1996 to co-finance increased programme right prices. The conditions under which the funds can be distributed were adopted by mutual agreement between the State and the public broadcasters. If the public broadcasters are unable to fund the purchase of rights which have increased excessively in price from their regular budget, the State will make a contribution, i.e. co-finance the acquisition of these rights by providing a matching amount.
2.3.3.2 Broadcasting Reserve Fund (FOR) payments
(39)
In 1998 the Minister of Education, Culture and Science was given the possibility, under Article 106a of the Media Act, of transferring money on an ad hoc basis from the AOR, which is managed by the Media Authority, to a fund intended to finance specific initiatives of the PO and the public service broadcasters. The fund, referred to as the FOR, was established in 1999 and is controlled by the PO.
(40)
The principle is that, if the AOR exceeds €90,8 million, there is scope for a transfer to the FOR. This, however, is not an automatic process. Each year the Minister of Education, Culture and Science decides whether a transfer is possible and if so, how much can be transferred. Where such a transfer is approved, the rules are laid down in a protocol. Such protocols were established in 1999 and 2001. On the basis of Article 99 2(d) of the Media Act, the budget must also contain a description of how the Board of Management proposes to spend the money. Based on this proposal, the Minister can then make available to the PO funds from the FOR, which can be used for purposes established by the Minister when making the money available (18). Although the FOR is a fund dedicated to PO initiatives, it is not a reserve that is part of the assets of the PO.
(41)
The funds available in the FOR make it possible for the PO to give a qualitative impetus, improve programming and invest in the public broadcasters in general. More specifically, the goal of the FOR is to:
-
offset reduced STER advertising income;
-
strengthen the variety and quality of programming where this involves extra initial costs; and
-
fund investments which support Dutch public service broadcasting as a whole.
(42)
By 2005 the public broadcasting system had received €191,2 million from the FOR, of which €157,4 million was transferred to the individual public service broadcasters and €33,8 million to the PO.
2.3.3.3 Co-Production Fund (CoBo) payments
(43)
The Co-Production Fund (Coproductiefonds Binnenlandse Omroep: hereinafter ‘CoBo Fund’) was created to finance co-productions between Dutch public broadcasters and other programme producers. Its income comes from revenues generated by the copyright payments paid by Belgian and German cable operators for the distribution of the three Dutch channels in Belgium and Germany. The Fund was established by the public broadcasters and is managed through a foundation. The board of the Fund consists of managers from the public broadcasters.
(44)
In 1994 the Dutch authorities decided to make payments to two sub-funds managed by the CoBo Fund, the ‘Film Fund’, which finances co-productions of films and documentaries, and the ‘Telefilm’ project, which aims to stimulate the production of high-quality television films.
(45)
The individual public service broadcasters received €31,7 million of public money from the CoBo Fund in the period 1994-2005. The PO did not receive any payments from the CoBo Fund.
2.4 The reserves held by the individual broadcasters
(46)
Each public service broadcaster maintains certain reserves, which are, typically, a programme reserve and either an association or a foundation reserve, depending on whether the public service broadcaster is a foundation or an association.
2.4.1 Programme reserves
(47)
Individual public service broadcasters are allowed to increase their reserves when total revenues exceed total costs. These programme reserves can be used to cover programme costs in future years.
(48)
According to the Dutch authorities, the value of programmes which have been produced but not yet broadcast is added to the programme reserves (19). The programme reserves thus also reflect the value of programmes already produced. In 2005 the total programme reserves held by the individual public broadcasters amounted to €78,6 million.
(49)
In 2005 the PO also decided that part of the programme reserves should be transferred to the PO itself, but the broadcasters were allowed to maintain reserves of up to 5-10 % of their annual budget. The public broadcasters transferred to the PO an amount of €42,457 million.
2.4.2 Association reserves
(50)
The public service broadcasting associations originated as private law entities. Over the years they have built up their own association reserves from contributions and legacies received from their members. The association reserves thus originated from private resources. In 1993 the Dutch government decided to ‘freeze’ the association reserves. As of that moment, in principle (20), the profits generated by association activities and other non-public activities had to be used for public service activities and could no longer be transferred to the association reserves. In 2005 the public service broadcasters in the Netherlands had a total association reserve of approximately €131,1 million.
2.4.3 Foundation reserve NOS RTV and smaller broadcasters
(51)
The NOS RTV, NPS and other smaller broadcasters without members (Article 39f of the Media Act) hold a ‘foundation’ reserve’ (‘stichtingsreserve’). The overall level of the foundation reserves was €42,2 million in 2005 (21).
2.5 Advertising on public service channels
(52)
As explained in paragraph 17, the STER is responsible for selling advertising time on public service channels.
(53)
The other main companies selling TV advertising time which are active on the Dutch market are IP and SBS. IP sells advertising time on behalf of the commercial broadcasters RTL4, RTL5 and Yorin. SBS sells advertising time for its commercial broadcasters SBS6, Net 5 and Veronica. In addition to IP and SBS there are a few other commercial broadcasters who also sell advertising time (22). The rates charged by the STER are calculated on the basis of forecasts from advertising agencies, competitors' rates and price history.
(54)
Table 1 below shows the evolution of the audience share of the public service broadcasters for which STER manages the sale of advertising. The audience share of viewers aged 13+ has declined in recent years from 38,8 in 1997 to 35,4 % in 2005. For the 20-49 category, the audience share is even lower, at 27,2 %.
Table 1:
Audience share 13+ and 20-49 years old (18.00h - 24.00h), 1997 - 2005
1997
1998
1999
2000
2001
2002
2003
2004
2005
13+
38,8
39,9
37,8
39,8
38,8
37,9
36,8
38,9
35,4
20-49
34,6
35,8
31,6
33,3
33,0
32,5
30,1
31,8
27,2
Source
:
Letter of 24.2.2006 from Dutch authorities.
(55)
Since 1994, the gross revenue (based on list prices) and net revenue (taking into account discounts granted) generated by the commercial broadcasters on the advertising market have exceeded the revenue generated by the public broadcasters.
Table 2:
Gross revenues from TV advertising 1994 - 2005 (amounts x €1 million)
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
STER
327
298
225
234
257
290
348
343
383
489
581
471
Commercial broadcasters
360
438
532
629
715
887
1 028
1 084
1 310
1 623
2 034
2 327
Total
687
736
757
863
972
1 177
1 376
1 426
1 693
2 112
2 615
2 798
Source
:
Letter of 24.2.2006 from Dutch authorities.
Table 3:
Net revenues from TV advertising, 1994 - 2005 (amounts x €1 million)
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
STER
223
202
153
150
176
187
218
197
197
197
197
169
Commercial broadcasters
239
281
324
378
405
448
508
484
520
537
549
599
Total
462
483
477
528
581
635
726
683
717
733
746
768
Source
:
Letter of 24.2.2006 from Dutch authorities.
(56)
As can be inferred from Tables 1, 2 and 3, there is a difference between gross revenues from TV advertising and revenues net of discounts. According to the Dutch authorities, not only are the published tariffs of the public service broadcasters higher, but also the discounts that they grant are lower in comparison with commercial broadcasters (23).
2.6 Acquisition of football rights by the NOS RTV
(57)
During the period under investigation the NOS RTV obtained broadcasting rights for several important football events (24). The commercial broadcaster Canal+ (pay-TV) obtained the rights for the live matches of the Dutch premier league. The rights for the Champions League were also partly sublicensed to Canal+ by the NOS RTV. The commercial broadcaster SBS obtained the broadcasting rights of two national football cups. It also obtained the rights to the Dutch first division matches and the qualification matches of the Dutch team for the European Championship 2004. The broadcasting rights for various foreign football competitions are held by CLT-UFA, Europe's largest broadcasting group (the parent company of e.g. RTL).
2.7 Relation between broadcasters and cable operators
(58)
Traditional cable transmission is seen as a separate publication for the purpose of copyright under Dutch law. In principle, the permission of all copyright holders is required, and the copyright holder may claim a payment from the cable operator for the publication. Since 1985 there has been an agreement between the VECAI (representing the cable operators) and the NOS RTV (representing the public broadcasters) under which the cable operators are exempted from making copyright payments to the public broadcasters (the copyright holders) when their programmes are transmitted via cable (25). This agreement was made at the request of the Dutch Government, on the grounds that citizens already paid a contribution for public broadcasting. It was considered that a copyright payment from cable operators, which could result in higher cable subscription fees, would be undesirable. Commercial broadcasters have not asked for copyright payments from the cable operators either. However, this is not related to the aforementioned agreement with the public service broadcasters.
(59)
It should be noted that cable operators are legally obliged to transmit all the public broadcasters' radio and TV programmes (‘must carry’ obligation) and cannot charge broadcasters for the transmission costs.
2.8 The measures subject to this Decision
(60)
As set out in the decision to open the formal investigation procedure (26), the following measures are the subject of this Decision:
(1)
The payments to the broadcasters, referred to in Article 106a and 170c of the Media Act, which are categorized by the Commission as ad hoc payments. These are:
(a)
payments to the public service broadcasters made either from the matching funds or from the AOR, via the FOR. In the period 1994-2005 these payments totalled €[...] million. This amount can be divided into payments made from the matching funds (€[...] million) and payments made from the AOR to the FOR and subsequently from the FOR to the public broadcasters (€191,2 million).
(b)
payments from the Co-production Fund (CoBo). The CoBo Fund consists of two specific sub-funds, the Film Fund and the Telefilm project. In the period 1994-2005 the State granted €31,7 million to the public broadcasters via the CoBo Fund.
(2)
Ensured access to the cable, known as the ‘must carry’ obligation, laid down in Article 82i of the Media Act.
(3)
Provision of technical facilities by NOB free of charge, provided for in Articles 89 and 90 of the Media Act.
II. GROUNDS FOR INITIATING THE PROCEDURE AND ARGUMENTS OF THE PARTIES
3 SUMMARY OF THE GROUNDS FOR INITIATING THE PROCEDURE
(61)
After its initial investigation, the Commission concluded that certain measures, with the possible exception of the ‘must carry’ obligation, constituted state aid within the meaning of Article 87(1) of the EC Treaty. The Commission also expressed doubts about the compatibility of such state aid under Article 86(2) of the EC Treaty.
(62)
Regarding the proportionality of the funding, the Commission doubted whether costs and revenues were allocated according to clearly established cost accounting principles. The Commission doubted whether non-public service revenues were fully taken into account when calculating the need for state funding, leading to a risk of funding going beyond the net costs of the public service.
(63)
Furthermore, the Commission considered that the level of funds in the FOR and the programme reserves was an indication of structural over-compensation. The Commission noted that, of the total ad hoc payments, an amount of €110 million (based on figures of 2001) had not been used.
(64)
Moreover, the Commission expressed its intention to investigate whether competition in commercial markets had been unlawfully distorted. The Commission stressed that such distortion of competition could occur in the markets for advertising, intellectual property rights for cable transmission and football transmission rights.
(65)
Finally, the NOB is not allowed to charge the public broadcasters for the services it provides, but receives payments for this task directly from the State. The Commission noted that the provision of technical facilities free of charge could constitute aid to the public broadcasters.
4. COMMENTS FROM INTERESTED PART IES
(66)
The following comments relevant for this Decision were provided.
(67)
The Dutch public broadcasters argued that the measures in question should be considered existing aid because they constitute part of the general financing system for public broadcasting. Moreover, they remarked that the Commission should assess the financing of public broadcasting only in the light of the Protocol on the system of public broadcasting in the Member States, annexed to the EC Treaty (hereinafter ‘Amsterdam Protocol’), and should not apply the criteria of the Altmark judgment (27) or Article 87(1) or 86(2) of the EC Treaty.
(68)
CLT-UFA noted that it was not until 2002 that the accounts of the public service broadcasting system could be verified and approved by an independent accountant.
(69)
The public broadcasters commented that there is no over-compensation of €110 million as stated by the Commission. First of all, the public broadcasters and the government work with different accounting systems. The government works on a cash receipts basis of accounting and the public broadcasters work on the basis of costs and revenues which are entered in the accounts at the moment of the transaction. This causes discrepancies. In addition, the revenues of the FOR are, according to the public broadcasters, earmarked for specific future goals. Moreover, they commented that the excess financing cannot lead to distortions in other markets, as this financing can only be used for the public service activities.
(70)
ACT stated that STER behaves in an anti-competitive manner by undercutting prices in the advertising market. It argues that since the total annual advertising time of public broadcasters is more limited than that of commercial broadcasters, the STER should charge higher prices than commercial operators.
(71)
SBS Broadcasting confirmed that prices in the Dutch television advertising market are set for GRP (Gross Rating Point) category 20-49. However, as the public broadcasters attract more viewers than commercial broadcasters outside this viewer group, advertisers would be willing to pay a premium on the GRP 20-49. Therefore, a comparison of the GRP 20-49 would not convey the economic reality of the product. Moreover, SBS remarked that for GRP 13+ public broadcasters set lower prices than commercial broadcasters. To support its comments SBS submitted overviews of the average gross GRP 13+ prices for the different channels during prime time in 1995-2004 and per month in 2003 and 2004, which show that those of public broadcasters are lower than those of most commercial operators.
(72)
According to CLT-UFA the NOS RTV has paid excessive prices for football rights. The prices were far above market prices. CLT-UFA submitted calculation models (28) to show how they calculate the prices for football rights and concluded on this basis that the bid made by the NOS RTV for the rights for the Champions League matches of 2002 was significantly higher than that made by CLT-UFA. ACT and CLT-UFA considered, moreover, that the Commission should not reach the conclusion that there is insufficient evidence of overpayment of football rights on the basis of one example where a commercial operator may have overbid.
(73)
The association of cable operators, VECAI, raises two issues. First of all, it considers that the cable operators who are subject to the ‘must carry’ obligation should be able to ask for a payment from the relevant broadcasters. Due to the ‘must carry’ obligation, the public broadcasters have not paid a fee for the transmission of the signal over the cable networks.
(74)
Secondly, VECAI argued that the cable operators actually do pay a fee to the organisations which manage rights on behalf of the NOS RTV, but the NOS RTV and the Dutch Government regard this as a management fee. According to the VECAI it is a fee for intellectual property rights in disguise.
5. COMMENTS FROM THE DUTCH AUTHORITIES (29)
(75)
The Dutch authorities state that the Commission's assumption that the relevant measures are not part of the regular, annual financing of the public broadcasters as part of the state funding is erroneous. The financing which is the subject of the investigation stems from the regular financing mechanism and was an integral part of the budget planning which led to the payments to the public broadcasters. According to the authorities, the FOR, the matching funds, the CoBo Fund and the payments to the NOB are part of the regular, annual financing mechanism.
(76)
The Dutch authorities finally remind the Commission that the assessment should take into account the specific context in which the public service broadcasters operate. The authorities request the Commission to take into account the Amsterdam Protocol. If necessary, the subject of the present procedure should be qualified as compatible aid within the meaning of Article 86(2) of the EC Treaty, within the context of the principles laid down in the Amsterdam Protocol.
(77)
The amount provisionally indicated by the Commission as possible over-compensation is erroneous. This was inferred from the resources of funds which were wrongly qualified as reserves. Since the use of these funds is pre-determined and is subject to control there cannot be over-compensation. Moreover, the authorities argue that if the measures concerned are deemed to be state aid, the aid should be considered to be existing state aid within the meaning of Article 88(1) of the EC Treaty.
(78)
The Dutch authorities point out that the accounts of the individual public broadcasting associations have always been subject to approval by an independent accountant.
(79)
The Dutch authorities consider that broadcasts of popular and less popular sports fall within the definition of the main task of the public broadcasters. The Dutch authorities consider that, when determining their bid for transmission rights, public broadcasters did not pay more than was necessary to secure the acquisition of important rights in relation to their public service mission and overall programming.
(80)
The authorities reiterate that the public service mission of the NOB is part of the public broadcasting system. The fact that NOB does not charge the public broadcasters for the service it provides does not imply that aid is granted to the public service broadcasters.
(81)
The Dutch authorities state that, given that the commercial operators do not demand copyright payments from cable operators either, the NOS RTV could be said to be acting as a normal market operator in the circumstances of this particular market.
III. ASSESSMENT OF THE MEASURES UNDER STATE AID RULES
6. EXISTENCE OF AID WITHIN THE MEANING OF ARTICLE 87(1) OF THE EC TREATY
(82)
Article 87(1) of the Treaty lays down the following conditions for the presence of state aid. First, there must be an intervention by the State or through state resources. Second, it must confer an advantage on the recipient. Third, it must distort or threaten to distort competition. Fourth, the intervention must be liable to affect trade between Member States.
6.1 Presence of state resources
6.1.1 Ad hoc payments
(83)
The payments referred to in Articles 106a and 170c of the Media Act, which are categorized by the Commission as ad hoc payments, can be divided into matching fund payments, FOR payments and CoBo Fund payments.
(84)
In the case of the matching funds, money is first set aside within the AOR - which is a fund whose resources are owned by the State and managed by the Media Authority - for the purpose of matching certain types of higher than foreseen expenditure of public service broadcasters. In a second step, the state resources represented by the matching funds of the AOR are transferred to the NOS RTV.
(85)
The payments made by the FOR fund are considered state resources. Although the FOR is a fund administered and managed by the PO, the money comes from the AOR, which is part of the media budget.
(86)
More importantly, as described in section 2.3.3.2, the PO distributes the money on the basis of agreements that are made in advance on the use of FOR money. Although it is the PO which proposes how the money should be used, it is the Minister of Education, Science and Culture who ‘adopts the proposal’ and establishes for which purposes the money can be used. The PO can only take the decision to spend the money once the Minister has established the criteria for the distribution of the money. The PO has to take into account the rules laid down by the Minster. It can therefore be considered that the transfer of state resources takes place when the payments are made from the FOR to the individual broadcasters. This is a transfer of state resources, which is moreover imputable to the State (30).
(87)
In the period under investigation the public broadcasters received an amount of €191,2 million from the FOR and an amount of €[...] million from the matching funds.
(88)
The payments by the CoBo Fund are considered state resources. As described in paragraph 43, the money in the CoBo Fund comes from direct contributions from the media budget and the revenues generated by the copyright payments paid by Belgian and German cable operators for the distribution of the three Dutch channels in Belgium and Germany. The Commission takes the view that not only the direct contributions from the media budget, but also the copyright payments can be considered state resources. Indeed, the copyright payments should have been used to finance the public service costs of the broadcasters. Setting them aside in the CoBo Fund had the effect of increasing the need for public funding proportionally. The copyright payments are therefore equivalent to resources forgone by the State.
(89)
Moreover, although the CoBo Fund is owned and managed by a foundation (the board of which is governed by the public service broadcasters), the transfers from the CoBo Fund are only made available to the public service broadcasters under conditions which are determined by the State.
(90)
The public service broadcasters received an amount of €31,7 million from the CoBo Fund in the period under investigation. This is a transfer of state resources to the individual broadcasters.
6.1.2 Free access to cable
(91)
The ‘must carry’ obligation imposed on cable operators does not involve any transfer of state resources, nor can the forgone revenues of cable operators be regarded as constituting a transfer of state resources (31). The Commission has no information to suggest otherwise. Accordingly, the preliminary view that the measure does not constitute a state aid within the meaning of Article 87(1) of the EC Treaty can be confirmed.
6.1.3 Free technical facilities from the NOB
(92)
The public company NOB receives payments from the State for the services it is obliged to deliver to the public broadcasters. These payments involve the direct transfer of state resources. They ultimately benefit the public broadcasters who get the services free of charge (32). Indeed the Dutch authorities themselves have stated that the NOB simply acts as a ‘vehicle’ for transferring state funding to the public service broadcasters who receive the services of the NOB.
6.2 Economic advantage
(93)
The ad hoc financing (payments to FOR and via the matching funds), the transfers to the CoBo Fund and the provision of free technical facilities provide an economic advantage to the Dutch public service broadcasters, in the sense that these measures relieve them from operating costs that they would otherwise have to bear.
6.2.1 Applicability of the Altmark judgment
(94)
The Dutch Government and the public broadcasters have argued that the measures under investigation compensate the public broadcasters for the net costs of discharging their public service mission. This would imply that the measures would therefore not provide an advantage to public service broadcasters and not constitute aid, in line with the Altmark judgment (33).
(95)
State measures compensating for the net additional costs of a SGEI do not qualify as state aid within the meaning of Article 87(1) of the EC Treaty if the compensation is determined in such a way that a real advantage cannot be conferred on the undertaking. In the Altmark judgment the Court of Justice laid down the conditions that have to be satisfied for compensation not to be classified as state aid. These conditions are as follows:
-
first, the recipient undertaking must actually have public service obligations to discharge and the obligations must be clearly defined;
-
second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner;
-
third, the compensation cannot exceed what is necessary to cover all or part of the costs incurred in the discharge of the public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations;
-
fourth, where the undertaking which is to discharge public service obligations, in a specific case, is not chosen in a public procurement procedure, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with means of production so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.
(96)
The Commission considers that in the present case the last three conditions set out in paragraph 95 are not fulfilled. First, the transfer of funds from the FOR, the matching funds and the financial contribution from the CoBo Fund to the public service broadcasters is not based on objective and transparent parameters established in advance.
(97)
Moreover, neither the ad hoc financing measures nor the payments from the CoBo Fund take into account all the relevant receipts of the public service broadcasters. Nor do they include the necessary safeguards to exclude over-compensation. Indeed, as will be assessed in more detail below, the ad hoc funding actually resulted in considerable over-compensation.
(98)
Finally, the Dutch public broadcasters were not chosen as providers of a SGEI on the basis of a tender, nor was any analysis carried out to ensure that the level of compensation was determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with the means of production so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations. The same is true of the financing of the technical facilities made available to the public service broadcasters by the NOB.
(99)
Consequently, the Commission considers that not all conditions set out in the Altmark judgment are fulfilled in this case.
6.3 Distortion of competition
(100)
The advantage provided by the ad hoc financing, the transfers to the CoBo Fund and the provision of free technical facilities to the Dutch public service broadcasters are not available to any other undertaking in a comparable situation. Given that competition is distorted whenever state aid reinforces the competitive position of the beneficiary undertaking vis-à-vis its competitors, the advantage is capable of distorting competition between the public service broadcasters and other undertakings (34).
6.4 Affecting trade between Member States
(101)
When state aid strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid (35) even if the beneficiary undertaking is itself not involved in exporting (36). Similarly, where a Member State grants aid to undertakings operating in the service and distributive industries, the recipient undertakings need not themselves carry on their business outside the Member State for the aid to have an effect on Community trade (37).
(102)
In line with this case law the 2001 Communication from the Commission on the application of state aid rules to public service broadcasting (hereinafter: ‘the Broadcasting Communication’) (38) explains that:
‘Thus, state financing of public service broadcasters can generally be considered to affect trade between Member States. This is clearly the position as regards the acquisition and sale of programme rights, which often take place at an international level. Advertising, too, in the case of public broadcasters who are allowed to sell advertising space, has a cross-border effect, especially for homogeneous linguistic areas across national boundaries. Moreover, the ownership structure of commercial broadcasters may extend to more than one Member State (39).’
(103)
In the present case, the Dutch public broadcasters are themselves active on the international market. Through their membership of the European Broadcasting Union they can exchange television programmes and participate in the Eurovision system. Moreover, their programmes are broadcast in Belgium and Germany. Furthermore, the Dutch public broadcasters are in direct competition with commercial broadcasters that are active on the international broadcasting market and that have an international ownership structure.
(104)
The Commission concludes on these grounds that the ad hoc financing, the funds provided to the CoBo Fund and the provision of free technical facilities are such as to affect trade between Member States within the meaning of Article 87(1) of the EC Treaty.
6.5 Conclusion
(105)
Since all conditions laid down in Article 87(1) of the EC Treaty are fulfilled and the conditions set out by the Court of Justice in the Altmark judgment have not been met in their entirety, the Commission concludes that the ad hoc financing (financing from FOR and the matching funds), the funds granted through the CoBo Fund and the provision of free technical services and facilities to the Dutch public broadcasters must be deemed to be state aid within the meaning of Article 87(1) of the EC Treaty. On the other hand, the advantage deriving from free access to the cable network does not involve a transfer of state resources and does not constitute state aid.
7. CLASSIFICATION MEASURES AS ‘NEW’ AID
(106)
Pursuant to Article 1(b) of the Council Regulation (EC) No 659/99 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (40), ‘existing aid’ means, inter alia:
‘(i)
…, all aid which existed prior to the entry into force of the Treaty in the respective Member States, that is to say, aid schemes and individual aid which were put into effect before, and are still applicable after, the entry into force of the Treaty’.
(107)
As stated before, a distinction may be made between the annual payments, which are not the subject of this Decision, and the ad hoc payments.
7.1 Annual payments
(108)
The annual payment are made on the basis of Article 110 of the Media Act, which states that ‘entities which have been awarded time to broadcast are entitled to funding from the general budget’. The level of funding and the availability are laid down in the same Media Act. This system of funding existed prior to the entry into force of the Treaty and is regarded as existing aid, as acknowledged by the Commission in procedure E-5/2005 (41).
7.2 Ad hoc payments
(109)
The ad hoc payments possess a number of characteristics which distinguish them from the regular annual payments and argue against their classification as existing aid:
-
The legal base for the payments was established after the entry into force of the Treaty. It was only in 1996 that the State introduced the possibility, through the matching funds, of matching expenditures made by the public broadcasters in the event of an excessive price increase for programme rights. Before 1996, the possibility of matching the payments made by the public broadcasters did not exist. Similarly, the amendment to the Media Act that makes it possible to make ad hoc payments from the FOR to the individual broadcasters was introduced in 1998. As for the state contribution to the CoBo, it was only in 1994 that the State decided to contribute to this Fund.
-
The actual payments were only made as of 1994. More specifically, payments from the CoBo Fund were made as of 1994, from the matching fund as of 1996, and from the FOR as of 1999.
-
Contrary to the regular annual funding, the ad hoc payments cannot be deemed to be payments to which the public service broadcasters are entitled. The payment of the ad hoc funding is thus not an automatic process (42). These payments take place upon request from the individual public service broadcasters and are granted after a specific and individual decision made by the Minister of Culture based on Article 106a of the Media Act. In the case of FOR, for example, the Minister decides, while taking into account the level of the FOR, whether funds should be transferred from the AOR to the FOR. It is then the PO which distributes the money further on the basis of rules laid down in Protocols.
-
The conditions under which the transfers can take place are laid down in ‘Transfer Protocols’ established in 1999 and 2002. As in the case of the CoBo Fund, the State lays down certain conditions for payments to and from the Fund which only date back to 1994.
-
Finally, the funding is granted for specific purposes, as indicated in section 2.3.3. These include giving an impetus to broadcasters to produce better programmes, absorbing fluctuations in advertising revenues, matching increased prices of sports rights and stimulating co-productions with Belgian and German broadcasters.
7.3 Free technical facilities
(110)
The public service broadcasters have received free technical facilities from the NOB since the entry into force of the Media Act 1987. In that year the NOB started providing facilities to the public service broadcasters, whereas originally these facilities had been provided by the NOS. The NOB has been entrusted with a service of general economic interest. It provides the facilities to the individual public service broadcasters free of charge and receives payments from the State directly. This measure can thus also be considered to be a new aid measure.
7.4 Conclusion on the classification as ‘new aid’
(111)
The ad hoc financing (payments from the FOR to the individual public broadcasters and from the matching funds), the transfers from the CoBo Fund and the provision of free technical facilities should all be deemed to be new aid rather than existing aid.
8. COMPATIBILITY OF THE AID UNDER ARTICLE 86(2) OF THE EC TREATY
(112)
On the basis of the characteristics of the measures the only possible grounds for compatibility is Article 86(2) of the EC Treaty which states that: ‘undertakings entrusted with the operation of services of general economic interest (…) shall be subject to the rules contained in this Treaty, in particular to the rules on competition, insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community’.
(113)
The Court of Justice has consistently held that Article 86(2) of the EC Treaty may provide for a derogation from the ban on state aid for undertakings entrusted with a SGEI. The Court's Altmark judgment implicitly confirmed that state aid that compensates for the costs incurred by an undertaking for the provision of a SGEI can be found to be compatible with the common market if it meets the conditions of Article 86(2) of the EC Treaty (43).
(114)
In line with settled case-law of the Court of Justice (44), Article 86(2) of the EC Treaty constitutes a derogation that should be interpreted restrictively. The Court has made clear that, in order for a measure to qualify for such a derogation, all of the following conditions must be fulfilled:
-
the service in question must be a service of general economic interest and clearly defined as such by the Member State;
-
the undertaking in question must be explicitly entrusted by the Member State with the provision of that service;
-
the application of competition rules of the Treaty must obstruct the performance of the particular tasks assigned to the undertaking and the exemption from such rules must not affect the development of trade to an extent that would be contrary to the interests of the Community.
(115)
The Broadcasting Communication sets out the principles and methods which the Commission intends to apply in order to ensure that the conditions referred to above are complied with. It must therefore examine whether in the present case:
-
the broadcasting activities of Dutch public broadcasters are clearly and precisely defined by the Dutch authorities as a service of general economic interest (definition);
-
the Dutch public broadcasters are officially entrusted by the Dutch authorities with the provision of that service (entrustment);
-
the state funding does not exceed the net cost of that public service, taking also into account other direct or indirect revenues derived from the public service (proportionality).
8.1 Definition
(116)
In this context, it should be mentioned that the ad hoc financing and the free provision of technical facilities were designed to support activities which are part of the general public service remit. An assessment of the overall level of funding of the public service broadcasters is thus necessary, but, with the exception of the specific measures referred to above, this Decision does not intend to assess the mechanism and conditions under which state funding is provided. Nor does this Decision concern the organisation of the public service broadcasting system as a whole.
(117)
As stated in paragraph 33 of the Broadcasting Communication, it is for the Member States to define the public service remit of a public broadcaster. Given the specific nature of the broadcasting sector, however, the Commission considers ‘a “wide” definition entrusting a given broadcaster with the task of providing balanced and varied programming in accordance with its remit, to be legitimate under Article 86(2) EC, in view of the interpretative provisions of the Protocol. Such a definition would be consistent with the objective of fulfilling the democratic, social and cultural needs of a particular society and guaranteeing pluralism, including cultural and linguistic diversity’.
(118)
Although the definition may be broad, it should be sufficiently clear and precise to leave no doubt as to whether a given activity performed by the entrusted operator is intended by the Member State to be included in the public service remit or not. As stated in paragraph 36 of the Broadcasting Communication, the role of the Commission is limited to checking whether the public service definition in the broadcasting sector contains any manifest error.
(119)
The main task of the Dutch public broadcasters is to provide high quality and varied programmes for general broadcast on the public channels, in the general interest, as laid down in Article 13c of the Media Act. Specific programming requirements relating to the categories of content to be covered and the amount of broadcasting time to be devoted to each category are also contained in the legislation.
(120)
CLT-UFA stated that the Dutch public broadcasters broadcast too much sport in general and too much football in particular. The complainants claimed that the NOS RTV broadcasts the majority of all sports events in the Netherlands. As stated above, the ad hoc financing was intended to finance activities which are part of the general public service remit and were thus also meant for the acquisition of sports rights.
(121)
The Commission is of the opinion, however, that broadcasting sports programmes, within a limit of around 10 % of total broadcasting time, does not constitute a manifest error. Sports can be part of the broadcasters' public service mission, and devoting 10 % of broadcasting time to sports is not inconsistent with the remit of offering a balanced and varied public service programming mix.
(122)
The Commission is of the opinion that the main task, as defined in Article 13c(1) of the Media Act, is rather broadly defined, but can be considered to meet - in accordance with the wording of the Amsterdam protocol - the ‘democratic, social and cultural needs’ of Dutch society. Thus, the definition in the legislation is sufficiently clear and precise in relation to the main task, and does not contain any manifest errors.
8.2 Entrustment
(123)
Paragraph 40 of the Broadcasting Communication states that in order to benefit from the exemption under Article 86(2) of the EC Treaty, the public service remit should be entrusted to the Dutch public broadcasters by means of an official act. The Commission notes that the Media Act formally entrusts the NOS with the task of performing the public service task defined in Article 13c and the supporting legislation. The public broadcasters are given the right to broadcast programmes on the public channels by Article 31 of the Media Act, and the Commission considers that the main task of broadcasting programmes is clearly entrusted to the public broadcasters.
8.3 Proportionality
(124)
In Chapter 6.3 of the Broadcasting Communication, it is explained that the proportionality test that the Commission must carry out is twofold (45).
(125)
On the one hand, the Commission has to calculate the net cost of the public service task entrusted to the Dutch public broadcasters and verify whether or not this cost has been over-compensated. When compensating an undertaking, the state aid must not exceed the net costs of the public service mission. To arrive at the net cost, account should also be taken of other direct or indirect revenues derived from the public service mission. Therefore, the net benefit of the exploitation of the public service activities will be taken into account in assessing the proportionality of the aid.
(126)
On the other hand, the Commission has to investigate any information at its disposal suggesting that public broadcasters have distorted competition in commercial markets more than is necessary for the fulfilment of the public service mission. For example, a public service broadcaster, in so far as lower revenues would be covered by the state aid, might be tempted to depress prices of advertising or of other non-public service activities on the market, so as to reduce the revenue of competitors. Such a practice would require additional state funding to compensate for the revenues forgone from commercial activities and would therefore indicate the presence of over-compensation of public service obligations.
8.3.1 Transparency and cost-allocation
(127)
The Commission first needs to determine the cost of the SGEI. As the Dutch public broadcasters also carry out non-public service activities, they are required by Commission Directive 80/723/EEC of 25 June 1980 on the transparency of financial relations between Member States and public undertakings (46), as amended by Commission Directive 2000/52/EC (47), to keep separate accounts for the different activities carried out. Costs and revenues must be correctly assigned on the basis of clearly established, objective cost accounting principles. Costs that are entirely attributable to public service activities, while benefiting also commercial activities, need not be apportioned between the two and can be entirely allocated to public service (48).
(128)
The Transparency Directive has been implemented in the Netherlands through an amendment of the Competition Act (‘Mededingingswet’) (49). Moreover, a special Decree (50) obliges public broadcasters to keep separate accounts for all side activities and association activities. On the basis of this, the Dutch authorities have provided information on the costs and revenues of public broadcasters in the period 1994-2005.
(129)
Under the Transparency Directive, Member States are required to ensure not only that separate accounts are kept for public service and non-public service activities, but also that all costs and revenues are correctly allocated on the basis of consistently applied and objectively justifiable cost accounting principles and that the cost-allocation principles according to which the separate accounts are maintained are clearly established.
(130)
However, the Commission notes that the Decree does not determine how the public broadcasters have to allocate costs that are shared by the public service and the non-public service activities. Information from the Dutch authorities confirms, moreover, that the public broadcasters use different methods to allocate costs. The authorities argue that on an individual level the allocation is correct, but that due to the choices individual broadcasters make regarding the allocation, the allocation may differ from one broadcaster to the other. The Commission finds, however, that the fact that there is no consistency between the different broadcasters is an indication that the Decree does not sufficiently prescribe how the cost allocation should take place.
(131)
Therefore, on the basis of the information submitted by the Dutch authorities, it cannot be concluded that the costs are correctly allocated on the basis of accepted cost-allocation methods. Consequently, the Commission considers that all the net revenues of the commercial activities of the public service broadcasters should be taken into account in determining whether state funding has been proportional to the public service costs. This is also consistent with the Dutch legislative framework that applies to the public service broadcasting system and which obliges broadcasters to use for public service purposes all of their profits, including those from commercial activities (51).
8.3.2 Proportionality of public funding
(132)
According to paragraph 57 of the Broadcasting Communication, state aid must not exceed the net costs of the public service incurred by the broadcaster. Thus, after having determined the net costs of the public service it has to be established whether the total amount of state funding does not exceed this figure.
(133)
If a complete or meaningful cost allocation has not taken place, the net revenues of all the activities that have benefited directly or indirectly from public funding have to be taken into account for the calculation of the net public service costs (52). Only the revenues of the commercial ‘stand-alone’ activities do not have to be taken into account in establishing the net costs of the public service mission. These are activities which have not benefited directly or indirectly - for example by way of cheaper production inputs - from state funding or which have paid the full value of inputs which they share with or result from the public service activity.
(134)
In the Dutch public service broadcasting system, there is neither the concept of ‘stand-alone’ activities nor a meaningful and complete allocation of resources between different activities of broadcasters. Moreover, the Media Act stipulates that all the net revenues of main and side tasks (53), side activities and association activities (54) have to be used for the fulfilment of the public service mission (55).
(135)
Consequently, the net costs of the public service activities are determined by taking into account the revenues from all activities of the public service broadcasters. The calculation is therefore as follows:
-
first, the net costs of the public service are determined by deducting from the total costs of providing the public services, the net revenues derived from the exploitation of the public service (main and side tasks) (56);
-
second, all other net commercial revenues are taken into account (side and association activities);
-
third, all the forms of public funding are added up. First, the annual state financing and the Stifo payments which are considered to be ‘existing aid’ measures. Then the ad hoc financing (payments from the FOR and the matching funds) and payments from the CoBo Fund, which are considered as ‘new aid’ measures.
(136)
The sum of all the above items determines whether or not the total state funding exceeds the total net public service costs or, in other words, whether or not there has been over-compensation of the public service tasks.
(137)
As regards the free provision of technical services and facilities by the NOB, the measure should, in principle, be taken into account in the assessment of the over-compensation. However, it is not necessary to explicitly include the measure in the calculations, since the benefits from the free technical service can be considered to be compensating costs that would otherwise have had to be financed. Thus, having to pay the costs in question would have increased by the same amount the costs of the public service entrusted to the Dutch public broadcasters. The inclusion of these costs would therefore not alter the final net result (57).
8.4 Decision to initiate the procedure and period under investigation
(138)
In the decision to initiate the procedure, the Commission quantified over-compensation, on a preliminary basis, as €110 million. The calculation was based on incomplete figures on the actual amount of transfers to the reserves and of the level of reserves held by the public service broadcasting system as a whole during the years 1992-2002. The authorities had not at the time provided complete data on individual broadcasters.
(139)
After initiating the procedure the Commission received the cost and revenue figures of the individual broadcasters, which are more detailed than the overall figures provided at the time of the opening of the procedure. Moreover, the new information provides actual data up to 2005 and also includes an estimate for 2006.
(140)
This Decision concerns the ad hoc payments which were paid as of 1994 and covers the period up to 2005. As regards the end date, the Dutch authorities invited the Commission to take into account the figures from 2006 too. However, the Commission does not consider this to be appropriate, since figures from 2006 are only estimates for the ongoing budget year.
8.4.1 Assessment of the compensation of the individual public service broadcasters
(141)
It appears that 14 out of the 19 public service broadcasters were over-compensated in the period 1994-2005. The over-compensation generated €32 million profits, which were generally transferred to their programme reserves.
(142)
However, in some cases part of the over-compensation was used to balance under-compensation in the period before 1994. At the beginning of 1994 some broadcasters had a negative programme reserve (58). Broadcasters were only allowed to register negative programme reserves when the public service costs exceeded the various sources of public service funding. In other words, negative programme reserves could only result from under-compensation of public service costs.
(143)
On the other hand, any possible loss from commercial activities had to be financed through the association reserves and could not be reflected in the programme reserves. According to the Dutch authorities, the association reserves were built up with private funds.
(144)
There are also cases in which the under-compensation of public service costs was temporarily financed with association reserves. In 1993, the association reserves were ‘frozen’ by the Dutch authorities; as of that moment, revenues from public service and commercial activities could no longer be added to these association reserves. However, an exception was made for the reimbursement of payments made out of association reserves before 1994 to cover for unfunded public service costs. According to the Dutch authorities, this is the only circumstance in which funds were still added to these reserves after 1994 (59).
(145)
The Commission considers that the negative amounts recorded in the programme reserves and the positive variations of association reserves after 1994 only occurred as a result of previous ‘under-compensation’ of public service costs. The consequent balancing of these sums is therefore considered to constitute eligible costs of the public service task. The corresponding amounts therefore do not have to be taken into account for the establishment of the over-compensation.
(146)
As stated in paragraph 141, the over-compensation generally flowed into the programme reserves. In 2005 the PO decided for the first time, on the basis of Article 19a(1)h and Article 109a of the Media Act, that reserves held by the individual broadcasters in excess of 5-10 % of their annual budget should be transferred to the PO (60). This transfer is also considered part of the ad hoc measures and is taken into account in determining the proportionality of the compensation. As a result, this transfer has reduced the overall compensation of the individual public service broadcasters, while increasing the over-compensation of the PO.
(147)
By subtracting - for each year from 1994 to 2005 - the net cost of the public service from the overall funding received from the State, in the way described in section 8.3.2, the Commission comes to the conclusion that none of the individual broadcasters has received public funding in excess of 10 % of its annual budget. Since the costs of public broadcasting may vary every year, the State may indeed wish for budgetary reasons to keep the fluctuations in state financing to a minimum and permit a certain percentage of the annual over-compensation to be carried forward to the next year. The Commission recognised this principle in the Danish public broadcasting case (61).
(148)
In the Danish state aid case the Commission stated that these reserves must be established for a specific purpose and that they must be regularised on a fixed date, i.e. being deducted from the next year's compensation if over-compensation has been found. Thus, if the over-compensation does not exceed 10 % of the amount of the annual compensation, such over-compensation is compatible with the EC Treaty and may be carried forward to the next annual period and deducted from the amount of compensation payable in respect of that period.
(149)
The Dutch authorities have decided that each individual public service broadcaster can only maintain a dedicated reserve of a maximum of 5-10 % of its annual budget (62). In view of this constraint, the PO ordered the transfer of €42,457 million of reserves from the individual broadcasters to the PO in 2005. The authorities have also committed themselves to carrying out regular monitoring of the reserves and ordering the reimbursement of the excess amounts above 10 % of the annual compensation as of 2006 (63). The Commission therefore considers that the conditions are fulfilled for accepting as compatible an amount of over-compensation provided that this does not exceed 10 % of the annual budget of the public service broadcasters (64).
(150)
Since the over-compensation does not exceed the 10 % margin of the annual budget, it can therefore be considered justified for the fulfilment of the public service mission and the aid is thus considered compatible with Article 86(2) of the EC Treaty.
8.4.2 Over-compensation of the PO
(151)
The PO has also received compensation for its role in managing and coordinating the broadcasting system. The PO performs this role as a separate organisation, which, internally, keeps separate accounts. The Dutch authorities have stated that although the NOS RTV and the PO are parts of a single legal entity and also present consolidated accounts, under no circumstances could they have access to each other's funds.
(152)
On the basis of the separate accounts for the PO and according to the accounting method described above, the Commission concludes that the PO has received a total over-compensation of €55,908 million, not including the reserves which were transferred in 2005 from individual broadcasters. The transfer of the reserves amounted to €42,457 million. When this transfer is taken into account, the total over-compensation of the PO amounts to €98,365 (€55,908 + €42,457) million.
Table 4:
Overview of annual funding of PO (1994-2005) amounts x €1 million (65)
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
Total
Public activity costs
53,1
60,5
61,8
64,6
69,3
77,3
89,0
94,7
100,4
91,2
91,9
95,2
948,9
Public activity revenues
0
0
0
0,7
3,3
3,5
2,5
2,6
3,4
0,2
0
0
16,2
Net public activity costs
53,1
60,5
61,8
63,9
66,0
73,8
86,4
92,0
97,0
90,9
91,9
95,2
932,7
Net result of commercial activities
5,7
5,9
6,5
7,3
10,7
16,0
13,7
12,0
10,8
13,1
22,3
9,7
133,7
Need for public funding
47,5
54,6
55,3
56,5
55,4
57,8
72,7
80,0
86,2
77,8
69,6
85,5
799,0
Annual payments
49,4
55,6
58,3
58,9
62,3
70,7
68,7
74,6
78,6
85,4
78,0
79,3
819,6
Annual payments from Stifo
0
0
0
0
0
0
0
0
0
0
0
0
0
Total annual compensation
49,4
55,6
58,3
58,9
62,3
70,7
68,7
74,6
78,6
85,4
78,0
79,3
819,6
Result before ad hoc payments
1,9
1,0
3,0
2,3
6,9
12,8
-4,0
-5,4
-7,6
7,6
8,4
-6,2
20,7
Payments from FOR
0
0
0
0
0
0
7,1
6,1
5,2
7,0
5,6
2,8
33,9
Payments from matching funds
0
0
0
0
0
0
0
0
0
0
0
0
0
Payments from CoBo Fund
0
0
0
0
0
0
0
0
0
0
0
0
0
Transfer of excess reserves
0
0
0
0
0
0
0
0
0
0
0
42,5
42,5
Total ad hoc payments
0
0
0
0
0
0
7,1
6,1
5,2
7,0
5,6
45,3
76,3
Extraordinary items
0
0
0
0
0
0,9
0
0,2
0,2
0
0
0
1,4
Total over/under-compensation
1,9
1,0
3,0
2,3
6,9
13,7
3,1
0,9
-2,1
14,5
14,0
39,1
98,4
(153)
In the Commission's view, the over-compensation of €98,365 million is not necessary for the functioning of the public service and it cannot, therefore, benefit from the Article 86(2) derogation from the prohibition on state aid. The over-compensation is consequently not considered compatible aid and should in principle be recovered from the PO.
(154)
Nevertheless, it appears that the over-compensation exceeds the total ad hoc payments accrued to the PO. The PO has received €33,870 million as ad hoc payments from the State's media budget, plus the ad hoc transfer of €42,457 million from the other broadcasters. This gives a total of €76,327 million of payments received from ad hoc measures. In addition, the ad hoc payments have also generated interest, which should be taken into account in determining the amount of funds which were not received in the context of the ‘existing aid measures’. The recovery would, therefore, have to be capped at €76,327 million plus interest, because the ‘remaining’ over-compensation was granted through existing aid and cannot be recovered.
8.5 Anti-competitive behaviour on commercial markets
(155)
As explained in the Broadcasting Communication, the Commission is of the opinion that anti-competitive conduct by public service broadcasters cannot be considered necessary for the fulfilment of the public service mission. In the decision to initiate the formal investigation procedure the Commission mentioned the following possible market distortions:
8.5.1 Cable transmission
(156)
The model contract concluded between broadcasters and cable operators in 1985 stipulates, at the request of the Dutch government, that cable operators do not pay any intellectual property rights for transmission of Dutch public television programmes. It is legitimate to question whether, by forgoing intellectual property rights payments from cable operators, the PO acted as a normal market operator, since it waived commercial income.
(157)
The Dutch authorities argue, however, that the fact that the PO does not claim a fee for intellectual property rights is not necessarily contrary to market behaviour. After all, commercial broadcasters do not require a fee from the cable operators for the transmission of their programmes either (66).
(158)
Indeed, the commercial agreements between the broadcasters and the cable operators can take various forms, particularly in view of the fact that the transaction involves an exchange of transmission services for availability of content, which is valuable to both parties. The Commission finds accordingly that there are no clear indications that the PO acted contrary to market behaviour and that by renouncing commercial revenues it increased the need for state funding.
8.5.2 Advertising market
8.5.2.1 Alleged undercutting of prices for GRP 20-49
(159)
At the opening of the formal investigation procedure, the Commission did not have sufficient evidence that the STER had actually undercut prices. Nevertheless, the information which was submitted after the opening of the investigation by the complainants and the Dutch authorities has to be assessed.
(160)
Paragraph 58 of the Broadcasting Communication indicates that public service broadcasters might be tempted to depress the prices of advertising so as to reduce the revenue of competitors. However, one should keep in mind that the public broadcasters in the Netherlands do not directly carry out advertising activities, but the advertising activities are carried out by a separate organisation, the STER. According to its mission statement, the STER must exploit the time available for advertising in such a way as to deliver an optimal contribution to the central financing of the public service broadcasters. It functions as an intermediary, with the job of maximising profits from the sale of the advertising space of the public broadcasters. As already mentioned in paragraph 17, the STER transfers the advertising revenues directly to the media budget.
(161)
Any undercutting behaviour by the STER might be inferred from some or all of the following circumstances: STER's prices being lower than its competitors', an increase in market share and loss of revenues for the STER.
(162)
First, as the Commission also indicated in the decision to open the formal investigation procedure, a comparison between the prices of the public and private advertising sales companies could be regarded as a meaningful measure of the criteria set out in paragraph 58 of the Broadcasting Communication.
(163)
In order to compare prices, the target group of 20-49 year-olds is the most relevant one. As can be inferred from Table 5, there are different sub-groups, many of which target viewers in the 20-49 age range:
Table 5:
Percentage of target GRP's (gross rating points) acquired by the STER in 2004
Target
13+
20-34
35-49
50-64
20-49
Shoppers 20-49
Shoppers 20-49 + child
Men 20-34
Women 20-34
Acquired
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
Source
:
Letter of 27.1.2005 from Dutch authorities.
(164)
Table 5 indicates that the STER predominantly sells advertising for viewers. Since 1999, the STER's market share in advertising and the audience reached by the public service broadcasters for the target group aged 20-49 has decreased. The gross prices charged to the advertisers for the 20-49 target group were as follows:
Table 6:
Gross prices per GRP for the target group of 20-49 year-olds (18.00h - 24.00h), 1995 - 2005 in €
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
STER
1 470
1 496
1 499
1 315
1 485
1 541
1 562
1 624
1 816
1 932
1 890
Commercial broadcasters
1 337
1 314
1 366
1 399
1 438
1 637
1 667
1 675
1 753
2 055
2 087
Source
:
Letter of 3.2.2006 from Dutch authorities.
(165)
On the basis of the data provided above, the STER's list prices for GRP for the 20-49 target group have been only slightly lower than the commercial broadcaster's list prices. According to the Dutch authorities the broadcasters and the STER grant quite substantial discounts. The commercial broadcasters seem to have granted much higher discounts, especially since 1998. These discounts are listed below:
Table 7:
Actual discounts granted in 1994-2005 in %
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
STER
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
Commercial broadcasters
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
Source
:
Letter of 24.2.2006 from Dutch authorities.
(166)
Even though the STER has a less attractive audience than the commercial broadcasters - it has a low selectivity and is thus less able to offer a very specific target group - and has a lower audience and advertising market share (see Table 9 below), its net prices are higher than those charged by the commercial broadcasters.
Table 8:
Net prices per GRP for the target group of 20-49 year-olds (18.00h - 24.00h), 1995 - 2005 in €
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
STER
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
Commercial broadcasters
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
[...]
(167)
From Table 9 it can, moreover, be inferred that there is a clear correlation between the decrease in audience share and advertising share for the public broadcasting service. There is no evidence that the STER is increasing its market share by possible price dumping, or even maintaining its market share despite the decrease in the audience share of its client broadcasters. On the contrary, the STER is losing advertising market share at a similar pace as the public service broadcasters are losing audience.
Table 9:
Audience and advertising market shares
1998
1999
2000
2001
2002
2003
Commercial broadcasters' audience
[...]
[...]
[...]
[...]
[...]
[...]
Commercial broadcasters' advertising
[...]
[...]
[...]
[...]
[...]
[...]
Public service broadcasters' audience
[...]
[...]
[...]
[...]
[...]
[...]
Public service broadcasters' advertising
[...]
[...]
[...]
[...]
[...]
[...]
Source
:
Letter of 3.2.2006 from Dutch authorities.
(168)
Finally, there is no evidence of the STER losing advertising revenues in order to increase its market share.
Figure 1:
Development of gross and net revenues
(169)
From Table 7 and Figure 1 it can be concluded that the STER has offered considerable discounts. Nevertheless, from Figure 1 it can also be concluded that, despite these discounts, the net revenues from the sale of advertising space remained relatively constant. The use of discounts has not led to a major change in revenues.
(170)
Consequently, none of the circumstances which typically accompany price undercutting behaviour - that is: lower prices, increase in market share and temporary loss of revenues - seems to have taken place in the Dutch advertising market. Again it should be emphasised that the STER is a company independent of the public service broadcasters and its revenues go directly into the media budget. Accordingly, the Commission must conclude that there are no indications that the STER has undercut prices to an extent which has led to an undue loss of revenues which increased the need for additional state funding of the public service broadcasting system.
8.5.2.2 Benchmark for advertising prices
(171)
SBS Broadcasting BV argued that ‘just the price comparison between the prices of GRP 20-49 paid to the STER or to the IP and/or SBS cannot be an exclusive criterion for establishing whether or not the STER undercuts the price’.
(172)
SBS also states that, first of all, advertisers are willing to pay an additional premium for the GRP 20-49 offered by the STER because it also reaches people outside the target group. In addition, the prices of the STER for GRP 13+ (the category of teenagers) for real delivery are actually much lower than the prices of the commercial competitors for GRP 13+. These issues were submitted by the Commission to the Dutch authorities (67).
(173)
Regarding the first issue, it should be made clear from the outset that marketing companies intend to reach a target group when advertising their products. Audiences outside the target group are irrelevant. One of the criteria for acquiring advertising time is selectivity of the target audience. If the advertising slot is not selective, i.e. there is a lot of so-called ‘waste’ (advertising reaching people outside the target group), then the advertising slot becomes less interesting. Due to the fact that the advertising space sold by STER has a low selectivity - it attracts a broad range of viewers - it is, according to the Dutch authorities, actually difficult for the STER to maintain its advertising tariffs. Secondly, the GRP 13+ is of less importance than GRP 20-49. The information in Table 5 shows the relatively low importance of GRP 13+ and clearly indicates that the GRP 13+ is not decisive when establishing a comparison of prices. As the Dutch authorities stated, the GRP 20-49 is much more relevant. The fact that the price of GRP 13+ is lower at the STER does not in itself prove that there is a general undercutting of prices by public service broadcasters.
8.5.2.3 Conclusion on advertising
(174)
Consequently, despite the fact that the STER has offered considerable discounts, the total revenue stemming from advertising space has not decreased but has remained stable. Having assessed the other arguments and the answers of the Dutch authorities, the Commission concludes that there is currently no evidence that the STER did not attempt to maximise its advertising revenues and that its behaviour would have led to an increased need for state funding.
8.5.3 Football rights
(175)
When it initiated the procedure, the Commission stated that there were no clear indications to conclude that broadcasters paid a price for football transmission rights which was structurally above the market value. One of the reasons was that public service broadcasters offered higher amounts during the negotiations than the commercial broadcasters were willing to offer. CLT-UFA complained that the Dutch public broadcasters paid high prices for football rights. The Commission indicated that it would assess this situation further.
(176)
The subsequent investigation did not provide evidence that the public broadcasters have outbid the commercial broadcasters, nor that public service broadcasters have acquired rights to a football event to an extent liable to close the market off to the competitors. Indeed, examples were found of important football rights held by commercial broadcasters during the period under investigation (see paragraph 55).
(177)
However, as no specific anti-competitive practices could be identified in the present procedure, the issue of whether the system as such offers sufficient safeguards against the possibility of anticompetitive behaviour will be examined in procedure E-5/2005 on existing aid.
9. CONCLUSION
(178)
For the reasons set out above, the Commission concludes that there has been over-compensation of the NOS for the functions it performs as PO amounting to €98,365 million and that this sum was granted through state aid measures that cannot be considered compatible with the common market on the basis of Article 86(2) of the EC Treaty and should therefore be recovered from the NOS.
(179)
Nevertheless, because the over-compensation exceeds the total ad hoc payments to the NOS for the functions it performs as PO, which amounted to a total of €76,327 million, the recovery would have to be capped at €76,327 million plus interest, because the ‘remaining’ over-compensation was granted through existing aid and cannot be recovered,
HAS ADOPTED THIS DECISION:
Article 1
1. The ad hoc state aid which the Netherlands has granted to the NOS for the functions it performs as PO is incompatible with the common market.
2. The incompatible ad hoc state aid shall be recovered from the NOS. The amount to be recovered is €76,327 million, plus interest.
3. The ad hoc state aid granted by the Netherlands to the individual public service broadcasters is compatible with the common market provided that, insofar as such aid results in over-compensation of the public service mission, the surplus is held in a special purpose reserve, the amount of which does not exceed 10 % of the broadcaster's annual budget and provided that compliance with this limitation is regularly monitored by the Netherlands.
Article 2
1) The Netherlands shall take all necessary measures to recover from the PO the aid referred to in Article 1 and unlawfully made available to the beneficiary.
2) Recovery shall take effect without delay and in accordance with the procedures of national law, provided that they allow the immediate and effective execution of the decision. The aid to be recovered shall include interest from the date on which it was made available to the beneficiaries until the date of its recovery.
3) The interest to be recovered under paragraph 2 shall be calculated in accordance with the procedures laid down in Articles 9 and 11 of Commission Regulation (EC) No 794/2004 (68).
4) Within two months of the notification of this Decision, the Netherlands shall enjoin the beneficiary referred to in Article 1 to reimburse the unlawful and incompatible aid and the interest due.
Article 3
The Netherlands shall inform the Commission, within two months of notification of this Decision, of the measures it has already taken and plans to take in order to comply with it. It will provide this information using the questionnaire attached in Annex 1 of this Decision. The Netherlands shall, within the same period of time, submit all documents giving evidence that the recovery proceedings have been initiated against the beneficiary of the unlawfully granted and incompatible aid.
Article 4
This Decision is addressed to the Kingdom of the Netherlands.
Done at Brussels, 22 June 2006. | [
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Directive 2002/15/EC of the European Parliament and of the Council
of 11 March 2002
on the organisation of the working time of persons performing mobile road transport activities
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 71 and Article 137(2) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the Economic and Social Committee(2),
Following consultation of the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty(3), and in the light of the joint text approved by the Conciliation Committee on 16 January 2002,
Whereas:
(1) Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport(4) laid down common rules on driving times and rest periods for drivers; that Regulation does not cover other aspects of working time for road transport.
(2) Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time(5) makes it possible to adopt more specific requirements for the organisation of working time. Bearing in mind the sectoral nature of this Directive, the provisions thereof take precedence over Directive 93/104/EC by virtue of Article 14 thereof.
(3) Despite intensive negotiations between the social partners, it has not been possible to reach agreement on the subject of mobile workers in road transport.
(4) It is therefore necessary to lay down a series of more specific provisions concerning the hours of work in road transport intended to ensure the safety of transport and the health and safety of the persons involved.
(5) Since the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the proposed action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(6) The scope of this Directive covers only mobile workers employed by transport undertakings established in a Member State participating in mobile road transport activities covered by Regulation (EEC) No 3820/85 or, failing that, by the European agreement concerning the work of crews of vehicles engaged in international road transport (AETR).
(7) It should be made clear that mobile workers excluded from the scope of this Directive, other than self-employed drivers, benefit from the basic protection provided for in Directive 93/104/EC. That basic protection includes the existing rules on adequate rest, the maximum average working week, annual leave and certain basic provisions for night workers including health assessment.
(8) As self-employed drivers are included within the scope of Regulation (EEC) No 3820/85 but excluded from that of Directive 93/104/EC, they should be excluded temporarily from the scope of this Directive in accordance with the provisions of Article 2(1).
(9) The definitions used in this Directive are not to constitute a precedent for other Community regulations on working time.
(10) In order to improve road safety, prevent the distortion of competition and guarantee the safety and health of the mobile workers covered by this Directive, the latter should know exactly which periods devoted to road transport activities constitute working time and which do not and are thus deemed to be break times, rest times or periods of availability. These workers should be granted minimum daily and weekly periods of rest, and adequate breaks. It is also necessary to place a maximum limit on the number of weekly working hours.
(11) Research has shown that the human body is more sensitive at night to environmental disturbances and also to certain burdensome forms of organisation and that long periods of night work can be detrimental to the health of workers and can endanger their safety and also road safety in general.
(12) As a consequence, there is a need to limit the duration of periods of night work and to provide that professional drivers who work at night should receive appropriate compensation for their activity and should not be disadvantaged as regards training opportunities.
(13) Employers should keep records of instances when the maximum average working week applicable to mobile workers is exceeded.
(14) The provisions of Regulation (EEC) No 3820/85 on driving time in international and national passenger transport, other than regular services, should continue to apply.
(15) The Commission should monitor the implementation of this Directive and developments in this field in the Member States and submit to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions a report on the application of the rules and the consequences of the provisions on night work.
(16) It is necessary to provide that certain provisions may be subject to derogations adopted, according to the circumstances, by the Member States or the two sides of industry. As a general rule, in the event of a derogation, the workers concerned must be given compensatory rest periods,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Purpose
The purpose of this Directive shall be to establish minimum requirements in relation to the organisation of working time in order to improve the health and safety protection of persons performing mobile road transport activities and to improve road safety and align conditions of competition.
Article 2
Scope
1. This Directive shall apply to mobile workers employed by undertakings established in a Member State, participating in road transport activities covered by Regulation (EEC) No 3820/85 or, failing that, by the AETR Agreement.
Without prejudice to the provisions of following subparagraph, this Directive shall apply to self-employed drivers from 23 March 2009.
At the latest two years before this date, the Commission shall present a report to the European Parliament and the Council. This report shall analyse the consequences of the exclusion of self-employed drivers from the scope of the Directive in respect of road safety, conditions of competition, the structure of the profession as well as social aspects. The circumstances in each Member State relating to the structure of the transport industry and to the working environment of the road transport profession shall be taken into account. On the basis of this report, the Commission shall submit a proposal, the aim of which may be either, as appropriate
- to set out the modalities for the inclusion of the self-employed drivers within the scope of the Directive in respect of certain self-employed drivers who are not participating in road transport activities in other Member States and who are subject to local constraints for objective reasons, such as peripheral location, long internal distances and a particular competitive environment, or
- not to include self-employed drivers within the scope of the Directive.
2. The provisions of Directive 93/104/EC shall apply to mobile workers excluded from the scope of this Directive.
3. In so far as this Directive contains more specific provisions as regards mobile workers performing road transport activities it shall, pursuant to Article 14 of Directive 93/104/EC, take precedence over the relevant provisions of that Directive.
4. This Directive shall supplement the provisions of Regulation (EEC) No 3820/85 and, where necessary, of the AETR Agreement, which take precedence over the provisions of this Directive.
Article 3
Definitions
For the purposes of this Directive:
(a) "working time" shall mean:
1. in the case of mobile workers: the time from the beginning to the end of work, during which the mobile worker is at his workstation, at the disposal of the employer and exercising his functions or activities, that is to say:
- the time devoted to all road transport activities. These activities are, in particular, the following:
(i) driving;
(ii) loading and unloading;
(iii) assisting passengers boarding and disembarking from the vehicle;
(iv) cleaning and technical maintenance;
(v) all other work intended to ensure the safety of the vehicle, its cargo and passengers or to fulfil the legal or regulatory obligations directly linked to the specific transport operation under way, including monitoring of loading and unloading, administrative formalities with police, customs, immigration officers etc.,
- the times during which he cannot dispose freely of his time and is required to be at his workstation, ready to take up normal work, with certain tasks associated with being on duty, in particular during periods awaiting loading or unloading where their foreseeable duration is not known in advance, that is to say either before departure or just before the actual start of the period in question, or under the general conditions negotiated between the social partners and/or under the terms of the legislation of the Member States;
2. in the case of self-employed drivers, the same definition shall apply to the time from the beginning to the end of work, during which the self employed driver is at his workstation, at the disposal of the client and exercising his functions or activities other than general administrative work that is not directly linked to the specific transport operation under way.
The break times referred to in Article 5, the rest times referred to in Article 6 and, without prejudice to the legislation of Member States or agreements between the social partners providing that such periods should be compensated or limited, the periods of availability referred to in (b) of this Article, shall be excluded from working time;
(b) "periods of availability" shall mean:
- periods other than those relating to break times and rest times during which the mobile worker is not required to remain at his workstation, but must be available to answer any calls to start or resume driving or to carry out other work. In particular such periods of availability shall include periods during which the mobile worker is accompanying a vehicle being transported by ferryboat or by train as well as periods of waiting at frontiers and those due to traffic prohibitions.
These periods and their foreseeable duration shall be known in advance by the mobile worker, that is to say either before departure or just before the actual start of the period in question, or under the general conditions negotiated between the social partners and/or under the terms of the legislation of the Member States,
- for mobile workers driving in a team, the time spent sitting next to the driver or on the couchette while the vehicle is in motion;
(c) "workstation" shall mean:
- the location of the main place of business of the undertaking for which the person performing mobile road transport activities carries out duties, together with its various subsidiary places of business, regardless of whether they are located in the same place as its head office or main place of business,
- the vehicle which the person performing mobile road transport activities uses when he carries out duties, and
- any other place in which activities connected with transportation are carried out;
(d) "mobile worker" shall mean any worker forming part of the travelling staff, including trainees and apprentices, who is in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward or on its own account;
(e) "self-employed driver" shall mean anyone whose main occupation is to transport passengers or goods by road for hire or reward within the meaning of Community legislation under cover of a Community licence or any other professional authorisation to carry out the aforementioned transport, who is entitled to work for himself and who is not tied to an employer by an employment contract or by any other type of working hierarchical relationship, who is free to organise the relevant working activities, whose income depends directly on the profits made and who has the freedom to, individually or through a cooperation between self-employed drivers, have commercial relations with several customers.
For the purposes of this Directive, those drivers who do not satisfy these criteria shall be subject to the same obligations and benefit from the same rights as those provided for mobile workers by this Directive;
(f) "person performing mobile road transport activities" shall mean any mobile worker or self-employed driver who performs such activities;
(g) "week" shall mean the period between 00.00 hours on Monday and 24.00 hours on Sunday;
(h) "night time" shall mean a period of at least four hours, as defined by national law, between 00.00 hours and 07.00 hours;
(i) "night work" shall mean any work performed during night time.
Article 4
Maximum weekly working time
Member States shall take the measures necessary to ensure that:
(a) the average weekly working time may not exceed 48 hours. The maximum weekly working time may be extended to 60 hours only if, over four months, an average of 48 hours a week is not exceeded. The fourth and fifth subparagraphs of Article 6(1) of Regulation (EEC) No 3820/85 or, where necessary, the fourth subparagraph of Article 6(1) of the AETR Agreement shall take precedence over this Directive, in so far as the drivers concerned do not exceed an average working time of 48 hours a week over four months;
(b) working time for different employers is the sum of the working hours. The employer shall ask the mobile worker concerned in writing for an account of time worked for another employer. The mobile worker shall provide such information in writing.
Article 5
Breaks
1. Member States shall take the measures necessary to ensure that, without prejudice to the level of protection provided by Regulation (EEC) No 3820/85 or, failing that, by the AETR Agreement, persons performing mobile road transport activities, without prejudice to Article 2(1), in no circumstances work for more than six consecutive hours without a break. Working time shall be interrupted by a break of at least 30 minutes, if working hours total between six and nine hours, and of at least 45 minutes, if working hours total more than nine hours.
2. Breaks may be subdivided into periods of at least 15 minutes each.
Article 6
Rest periods
For the purposes of this Directive, apprentices and trainees shall be covered by the same provisions on rest time as other mobile workers in pursuance of Regulation (EEC) No 3820/85 or, failing that, of the AETR Agreement.
Article 7
Night work
1. Member States shall take the measures necessary to ensure that:
- if night work is performed, the daily working time does not exceed ten hours in each 24 period,
- compensation for night work is given in accordance with national legislative measures, collective agreements, agreements between the two sides of industry and/or national practice, on condition that such compensation is not liable to endanger road safety.
2. By 23 March 2007, the Commission shall, within the framework of the report which it draws up in accordance with Article 13(2), assess the consequences of the provisions laid down in paragraph 1 above. The Commission shall, if necessary, submit appropriate proposals along with that report.
3. The Commission shall present a proposal for a Directive containing provisions relating to the training of professional drivers, including those who perform night work, and laying down the general principles of such training.
Article 8
Derogations
1. Derogations from Articles 4 and 7 may, for objective or technical reasons or reasons concerning the organisation of work, be adopted by means of collective agreements, agreements between the social partners, or if this is not possible, by laws, regulations or administrative provisions provided there is consultation of the representatives of the employers and workers concerned and efforts are made to encourage all relevant forms of social dialogue.
2. The option to derogate from Article 4 may not result in the establishment of a reference period exceeding six months, for calculation of the average maximum weekly working time of forty-eight hours.
Article 9
Information and records
Member States shall ensure that:
(a) mobile workers are informed of the relevant national requirements, the internal rules of the undertaking and agreements between the two sides of industry, in particular collective agreements and any company agreements, reached on the basis of this Directive, without prejudice to Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship(6);
(b) without prejudice to Article 2(1), the working time of persons performing mobile road transport activities is recorded. Records shall be kept for at least two years after the end of the period covered. Employers shall be responsible for recording the working time of mobile workers. Employers shall upon request provide mobile workers with copies of the records of hours worked.
Article 10
More favourable provisions
This Directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the health and safety of persons performing mobile road transport activities, or their right to facilitate or permit the application of collective agreements or other agreements concluded between the two sides of industry which are more favourable to the protection of the health and safety of mobile workers. Implementation of this Directive shall not constitute valid grounds for reducing the general level of protection afforded to workers referred to in Article 2(1).
Article 11
Penalties
Member States shall lay down a system of penalties for breaches of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that these penalties are applied. The penalties thus provided for shall be effective, proportional and dissuasive.
Article 12
Negotiations with third countries
Once this Directive has entered into force, the Community shall begin negotiations with the relevant third countries with a view to the application of rules equivalent to those laid down in this Directive to mobile workers employed by undertakings established in a third country.
Article 13
Reports
1. Member States shall report to the Commission every two years on the implementation of this Directive, indicating the views of the two sides of industry. The report must reach the Commission no later than 30 September following the date on which the two-year period covered by the report expires. The two-year period shall be the same as that referred to in Article 16(2) of Regulation (EEC) No 3820/85.
2. The Commission shall produce a report every two years on the implementation of this Directive by Member States and developments in the field in question. The Commission shall forward this report to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions.
Article 14
Final provisions
1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 23 March 2005 or shall ensure by that date that the two sides of industry have established the necessary measures by agreement, the Member States being obliged to take any steps to allow them to be able at any time to guarantee the results required by this Directive.
When Member States adopt the measures referred to in the first subparagraph, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
2. Member States shall communicate to the Commission the provisions of national law which they have already adopted or which they adopt in the field covered by this Directive.
3. Member States shall take care that consignors, freight forwarders, prime contractors, subcontractors and enterprises which employ mobile workers comply with the relevant provisions of this Directive.
Article 15
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.
Article 16
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 11 March 2002. | [
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COUNCIL DECISION of 5 November 1993 on the conclusion of the Agreement in the form of an exchange of letters concerning the provisional application of the Protocol setting out the fishing opportunities and financial contribution provided for in the Agreement between the European Economic Community and the Islamic Republic of Mauritania on fishing off the coast of Mauritania for the period 1 August 1993 to 31 July 1996 (93/605/EC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Agreement between the European Economic Community and the Islamic Republic of Mauritania on fishing off the coast of Mauritania (1),
Having regard to the proposal from the Commission,
Whereas negotiations have been held between the Community and the Islamic Republic of Mauritania, in accordance with the second paragraph of Article 13 of the abovementioned Agreement, to determine the amendments or additions to be introduced into the Annex to the Agreement and into the Protocol at the end of the period of application of the Protocol (2);
Whereas, as a result of these negotiations, a new Protocol was initialled on 10 June 1993;
Whereas, under that Protocol, Community fishermen have fishing rights in the waters under the sovereignty or jurisdiction of Mauritania;
Whereas, in order to avoid any interruption in the fishing activities of Community vessels, it is essential that the new Protocol be applied as soon as possible; whereas, for this reason, the two Parties initialled an Agreement in the form of an exchange of letters providing for the provisional application of the initialled Protocol from the day following the date of expiry of the Protocol in force; whereas this Agreement should be approved, pending a final decision taken under Article 43 of the Treaty,
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement in the form of an exchange of letters concerning the provisional application of the Protocol setting out the fishing opportunities and financial contribution provided for in the Agreement between the European Economic Community and the Islamic Republic of Mauritania on fishing off the coast of Mauritania for the period 1 August 1993 to 31 July 1996 is hereby approved on behalf of the Community.
The texts of the Agreement in the form of an exchange of letters and of the Protocol are attached to this Decision.
Article 2
The President of the Council is hereby authorized to designate the persons empowered to sign the Agreement in the form of an exchange of letters in order to bind the Community.
Done at Brussels, 5 November 1993. | [
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COMMISSION DECISION
of 18 July 1990
authorizing Spain to exclude from Community treatment, for a limited period, coal of third country origin imported after having been put into free circulation in another Member State
(Only the Spanish text is authentic)
(90/444/ECSC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 71 thereof,
Whereas in 1987, 1988 und 1989 the Spanish Government sent the Commission applications to exclude from Community treatment coal of third country origin which is imported after being put into free circulation in another Member State;
Whereas the Commission granted the relevant authorization to the Spanish Government by applying the provisions relating to mutual assistance, but for a limited period on each occasion. An authorization of this type for 1989 expired on 31 December 1989;
Whereas by letter of 27 November 1989 the Spanish Government made another application to extend its restrictive measures on coal of third country origin to include coal in free circulation in another Member State. This application requested authorization of unlimited duration;
Whereas current Spanish law allows limited quantities of coal of third country origin to be imported at a zero rate of duty. For coal other than anthracite the duty-free quota for 1990 would be increased to 12 million tonnes. The duty-free import quota for anthracite would remain limited at 12 000 tonnes;
Whereas imports in excess of the zero-duty quota attract duty of up to 14 %;
Whereas in principle, Article 71 of the Treaty leaves the Governments of the Member States their powers in matters of commercial policy. National rules remain therefore applicable as regards direct imports from non-member countries. However, Member States shall afford each other such mutual assistance as is necessary to implement measures recognized by the Commission as being in accordance with the Treaty and with existing international agreements;
Whereas under the provisions of the Treaty the principle of free movement applies equally to products in free circulation in a Member State;
Whereas where differences in commercial policy between Member States call for measures waiving the principle of the free movement of goods within the Community, such measures may be authorized only in exceptional circumstances and for a limited period, given the fundamental importance of the principle of free movement;
Whereas according to the notification from the Spanish Government, the commercial policy measures on coal are intended to protect Spanish collieries, which are in a difficult economic situation as a result of competition from coal of third country origin, and to increase their productivity;
Whereas to ease the difficulties affecting the coal industry, the Community has created instruments to support improvements in the competitiveness of the industry, thus helping to ensure better security of supply and to solve the social and regional problems related to the changes in the coal industry;
Whereas this was the objective of Commission Decision No 2064/86/ECSC (1), establishing Community rules for State aid to the coal industry; this regime creates the favourable conditions required for the Community coal industry to adapt to the realities of the energy market;
Whereas the abovementioned measures permit the abandonment of market protection and the abolition of controls at internal Community frontiers;
Whereas a withdrawal of the protective measures for coal originating in third countries and imported after having been put into free circulation in another Member State could however, without a period of transition, give rise to difficult problems of adaptation in the short term, for both economic and administrative reasons;
Whereas it therefore seems advisable to authorize the Spanish Government to apply, on a temporary basis, the measures set out above;
Whereas in order that the Commission may carry out a final assessment of the issue, the Spanish Government should be asked to send the Commission a report on the implementation of these policy measures,
HAS ADOPTED THIS DECISION:
Article 1
Spain is hereby authorized to apply to coal of third country origin imported after having been put into free circulation in another Member State, imports of which exceed the zero-duty quota of 12 000 tonnes for anthracite or 12 million tonnes for coal other than anthracite, a customs duty of up to 14 %.
Article 2
This Decision shall apply until 31 December 1990.
Article 3
Spain shall, before 31 December 1990, send the Commission a report on the implementation of the measure referred to in Article 1.
Article 4
This Decision is addressed to the Kingdom of Spain.
Done at Brussels, 18 July 1990. | [
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Commission Regulation (EC) No 262/2002
of 12 February 2002
establishing unit values for the determination of the customs value of certain perishable goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(1), as last amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council(2),
Having regard to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code(3), as last amended by Regulation (EC) No 993/2001(4), and in particular Article 173(1) thereof,
Whereas:
(1) Articles 173 to 177 of Regulation (EEC) No 2454/93 provide that the Commission shall periodically establish unit values for the products referred to in the classification in Annex 26 to that Regulation.
(2) The result of applying the rules and criteria laid down in the abovementioned Articles to the elements communicated to the Commission in accordance with Article 173(2) of Regulation (EEC) No 2454/93 is that unit values set out in the Annex to this Regulation should be established in regard to the products in question,
HAS ADOPTED THIS REGULATION:
Article 1
The unit values provided for in Article 173(1) of Regulation (EEC) No 2454/93 are hereby established as set out in the table in the Annex hereto.
Article 2
This Regulation shall enter into force on 15 February 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 February 2002. | [
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COMMISSION REGULATION (EEC) No 800/93 of 1 April 1993 amending Regulation (EEC) No 2919/92 on the sale by the procedure laid down in Regulation (EEC) No 2539/84 of bone-in beef held by certain intervention agencies and intended for export after processing
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
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 (1), and in particular Article 13 (1) thereof,
Whereas Commission Regulation (EEC) No 2919/92 provides for the sale of forequarters held by the Italian, French and German intervention agencies for processing and subsequent export; whereas Article 5 of the said Regulation lays down, in particular, that the refunds and the agricultural conversion rate to be used should be those applying on 15 October 1992;
Whereas application of the provisions of Regulation (EEC) No 3813/92 has changed certain of the economic conditions for the conclusion under Regulation (EEC) No 2919/92 of sales contracts from 1 January 1993; whereas Article 13 (1) lays down transitional measures to facilitate the initial application of Regulation (EEC) No 3813/92; whereas to correct the economic conditions for the abovementioned contracts, it should be laid down, as a transitional measure, that the refund and the agricultural conversion rate to be used should be those applying on the day the export declaration for the products exported is accepted;
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
Commission Regulation (EEC) No 2919/92 is hereby amended as follows:
(1) The following sentence is added to the second paragraph of Article 5:
'This shall not apply, however, to sales contracts concluded with the intervention agency from 1 January 1993.` (2) The following paragraph is added to Article 5:
'The national authorities shall take all measures necessary to ensure the effective application of Article 1, in particular by ensuring that processed products are accurately identified to enable the relationship between quantities covered by contracts concluded from 1 January 1993 and exported products to be established.`
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 1 January 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 1 April 1993. | [
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COMMISSION REGULATION (EEC) No 2793/89
of 15 September 1989
re-establishing the levying of customs duties on cortisone, hydrocortisone, prednisone, prednisolone and acetates of cortisone or hydrocortisone, falling within CN codes 2937 21 00 and 2937 29 10, originating in China, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 4257/88 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 4257/88 of 19 December 1988 applying generalized tariff preferences for 1989 in respect of certain industrial products originating in developing countries (1), and in particular Article 15 thereof,
Whereas, pursuant to Articles 1 and 12 of Regulation (EEC) No 4257/88, suspension of customs duties shall be accorded to each of the countries or territories listed in Annex III other than those listed in column 4 of Annex I within the framework of the preferential tariff ceiling fixed in column 7 of Annex I;
Whereas, as provided for in Article 13 of that Regulation, as soon as the individual ceilings in question are reached at Community level, the levying of customs duties on imports of the products in question originating in each of the countries and territories concerned may at any time be re-established;
Whereas, in the case of cortisone, hydrocortisone, prednisone, prednisolone and acetates of cortisone or hydrocortisone, falling within CN codes 2937 21 00 and 2937 29 10, the individual ceiling was fixed at ECU 700 000; whereas, on 14 July 1989, imports of these products into the Community, originating in China, 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 China,
HAS ADOPTED THIS REGULATION:
Article 1
As from 19 September 1989, the levying of customs duties, suspended pursuant to Regulation (EEC) No 4257/88 shall be re-established on imports into the Community of the following products originating in China:
1.2.3 // // // // Order No // CN code // Description // // // // 10.0370 // 2937 21 00 // Cortisone, hydrocortisone, prednisone (dehydrocortisone) and prednisolone (dehydrohydrocortisone) // // 2937 29 10 // Acetates of cortisone or hydrocortisone // // //
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, 15 September 1989. | [
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Council Regulation (EC) No 1648/2003
of 18 June 2003
amending Regulation (EEC) No 1360/90 establishing a European Training Foundation
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 308 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Having regard to the opinion of the Court of Auditors(3),
Whereas:
(1) Certain provisions of Council Regulation (EEC) No 1360/90 of 7 May 1990 establishing a European Training Foundation(4) should be brought into line with Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities(5) (hereinafter referred to as "the general Financial Regulation") and in particular Article 185 thereof.
(2) The general principles and limits governing right of access to documents provided for in Article 255 of the Treaty have been laid down by Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(6).
(3) When Regulation (EC) No 1049/2001 was adopted, the three institutions agreed in a joint declaration that the agencies and similar bodies should implement rules conforming to those of the Regulation governing access to their documents.
(4) Appropriate provisions should therefore be included in Regulation (EEC) No 1360/90 to make Regulation (EC) No 1049/2001 applicable to the European Training Foundation, as should a provision for appeals against a refusal of access to documents.
(5) Regulation (EEC) No 1360/90 should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 1360/90 is hereby amended as follows:
1. The following Article shall be inserted:
"Article 4a
Access to documents
1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents(7) shall apply to documents held by the Foundation.
2. The Governing Board shall adopt practical arrangements for implementing Regulation (EC) No 1049/2001 within six months of entry into force of Council Regulation (EC) No 1648/2003 amending Regulation (EEC) 1360/90 of 18 June 2003 establishing a European Training Foundation(8).
3. Decisions taken by the Foundation pursuant to Article 8 of Regulation (EC) No 1049/2001 may form the subject of a complaint to the Ombudsman or of an action before the Court of Justice, under the conditions laid down Articles 195 and 230 of the Treaty respectively."
2. Article 5(9) shall be replaced by the following:
"9. The Governing Board shall adopt the Foundation's annual report and forward it by 15 June at the latest to the European Parliament, the Council, the Commission, the European Economic and Social Committee and the Court of Auditors. The report shall also be forwarded to the Member States and, for information, to the eligible countries.
10. The Foundation shall forward annually to the budgetary authority any information relevant to the outcome of the evaluation procedures."
3. The third indent of Article 7(1) shall be replaced by the following:
"- for the preparation of the draft estimate of the Foundation's revenue and expenditure and the execution of its budget".
4. Article 10 shall be replaced by the following:
"Article 10
Budgetary procedure
1. Each year the Governing Board, on the basis of a draft drawn up by the Director, shall produce an estimate of revenue and expenditure for the Foundation for the following financial year. This estimate, which shall include a draft establishment plan, shall be forwarded by the Governing Board to the Commission by 31 March at the latest.
2. The estimate shall be forwarded by the Commission to the European Parliament and the Council (hereinafter referred to as the 'budgetary authority') together with the preliminary draft general budget of the European Union.
3. The Commission shall examine the estimate, having regard to the vocational training priorities in the eligible countries and to the overall financial orientations on economic aid to these countries. On the basis of the estimate, the Commission shall enter in the preliminary draft general budget of the European Union the estimates it deems necessary for the establishment plan and the amount of the subsidy to be charged to the general budget, which it shall place before the budgetary authority in accordance with Article 272 of the Treaty.
It shall establish on this basis, and within the proposed limits of the overall amount to be made available for economic aid to the eligible countries, the annual contribution for the budget of the Foundation to be included in the preliminary draft general budget of the European Union.
4. The budgetary authority shall authorise the appropriations for the subsidy to the Foundation.
The budgetary authority shall adopt the establishment plan for the Foundation.
5. The budget of the Foundation shall be adopted by the Governing Board. It shall become final following final adoption of the general budget of the European Union. Where appropriate, it shall be adjusted accordingly.
6. The Governing Board shall, as soon as possible, notify the budgetary authority of its intention to implement any project which may have significant financial implications for the funding of its budget, in particular any projects relating to property such as the rental or purchase of buildings. It shall inform the Commission thereof.
Where a branch of the budgetary authority has notified its intention to deliver an opinion, it shall forward its opinion to the Governing Board within a period of six weeks from the date of notification of the project."
5. Article 11(2), (3) and (4) shall be replaced by the following:
"2. By 1 March at the latest following each financial year, the Foundation's accounting officer shall communicate the provisional accounts to the Commission's accounting officer together with a report on the budgetary and financial management for that financial year. The Commission's accounting officer shall consolidate the provisional accounts of the institutions and decentralised bodies in accordance with Article 128 of the general Financial Regulation.
3. By 31 March at the latest following each financial year, the Commission's accounting officer shall forward the Foundation's provisional accounts to the Court of Auditors, together with a report on the budgetary and financial management for that financial year. The report on the budgetary and financial management for that financial year shall also be forwarded to the European Parliament and the Council.
4. On receipt of the Court of Auditors' observations on the Foundation's provisional accounts, pursuant to Article 129 of the general Financial Regulation, the Director shall draw up the Foundation's final accounts under his own responsibility and forward them to the Governing Board for an opinion.
5. The Governing Board shall deliver an opinion on the Foundation's final accounts.
6. The Director shall, by 1 July at the latest following each financial year, forward these final accounts to the European Parliament, the Council, the Commission and the Court of Auditors, together with the Governing Board's opinion.
7. The final accounts shall be published.
8. The Foundation's Director shall send the Court of Auditors a reply to its observations by 30 September at the latest. He shall also send this reply to the Governing Board.
9. The Director shall submit to the European Parliament, at the latter's request, any information required for the smooth application of the discharge procedure for the financial year in question, as laid down in Article 146(3) of the general Financial Regulation.
10. The European Parliament, on a recommendation from the Council acting by a qualified majority, shall, before 30 April of year N + 2, give a discharge to the Director in respect of the implementation of the budget for year N."
6. Article 12 shall be replaced by the following:
"Article 12
Financial Rules
The financial rules applicable to the Foundation shall be adopted by the Governing Board after the Commission has been consulted. They may not depart from Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities(9) unless specifically required for the Foundation's operation and with the Commission's prior consent."
Article 2
This Regulation shall enter into force on the first day of the month 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 Luxembourg, 18 June 2003. | [
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COMMISSION REGULATION (EC) No 121/98
of 16 January 1998
amending Annexes I, II and III to Council Regulation (EEC) No 2377/90 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2377/90 of 26 June 1990 laying down a Community procedure for the establishment of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin (1), as last amended by Commission Regulation (EC) No 1850/97 (2) and in particular Articles 6, 7 and 8 thereof,
Whereas, in accordance with Regulation (EEC) No 2377/90, maximum residue limits must be established progressively for all pharmacologically active substances which are used within the Community in veterinary medicinal products intended for administration to food-producing animals;
Whereas maximum residue limits should be established only after the examination, within the Committee for Veterinary Medicinal Products, of all the relevant information concerning the safety of residues of the substance concerned for the consumer of foodstuffs of animal origin and the impact of residues on the industrial processing of foodstuffs;
Whereas, in establishing maximum residue limits for residues of veterinary medicinal products in foodstuffs of animal origin, it is necessary to specify the animal species in which residues may be present, the levels which may be present in each of the relevant meat tissues obtained from the treated animal (target tissue) and the nature of the residue which is relevant for the monitoring of residues (marker residue);
Whereas, for the control of residues, as provided for in appropriate Community legislation, maximum residue limits should usually be established for the target tissues of liver or kidney; whereas, however, the liver and kidney are frequently removed from carcasses moving in international trade, and maximum residue limits should therefore also always be established for muscle or fat tissues;
Whereas, in the case of veterinary medicinal products intended for use in laying birds, lactating animals or honey bees, maximum residue limits must also be established for eggs, milk or honey;
Whereas danofloxacin, cefazolin and trimethoprim should be inserted into Annex I to Regulation (EEC) No 2377/90;
Whereas lini oleum, folic acid, betain and cefazolin should be inserted into Annex II to Regulation (EEC) No 2377/90;
Whereas, in order to allow for the completion of scientific studies, the duration of the validity of the provisional maximum residue limits previously defined in Annex III to Regulation (EEC) No 2377/90 should be extended for penethamate;
Whereas a period of 60 days should be allowed before the entry into force of this Regulation in order to allow Member States to make any adjustment which may be necessary to the authorisations to place the veterinary medicinal products concerned on the market which have been granted in accordance with Council Directive 81/851/EEC (3), as last amended by Directive 93/40/EEC (4), to take account of the provisions of this Regulation;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Veterinary Medicinal Products,
HAS ADOPTED THIS REGULATION:
Article 1
Annexes I, II and III to Regulation (EEC) No 2377/90 are hereby amended as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on the 60th day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 January 1998. | [
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COUNCIL REGULATION (EC) No 1787/95 of 24 July 1995 opening and providing for the administration of a Community tariff quota for rum, tafia and arrack originating in the African, Caribbean and Pacific (ACP) States (second half 1995)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas the Fourth ACP-EEC Convention (1) entered into force on 1 September 1991;
Whereas Protocol 6 of that Convention stipulates that products originating in the African, Caribbean and Pacific (ACP) States which fall within CN codes 2208 40 10, 2208 40 90, 2208 90 11 and 2208 90 19 shall, until the entry into force of a common organization of the market in spirits, be allowed into the Community free of customs duties under conditions such as to permit the development of traditional trade flows between the ACP States and the Community; whereas the Community shall until 31 December 1995 fix each year the quantities which may be imported free of customs duties;
Whereas by Regulation (EC) No 1989/94 (2) the Council opened, for the period 1 July 1994 to 30 June 1995, a Community tariff quota (Order No 09.1605) for rum, tafia and arrack of 244 87 hl of pure alcohol;
Whereas pursuant to Article 2 (a) of the said Protocol 6 the volume of the tariff quota for the period from 1 July 1995 to 31 December 1995 will be equivalent to half that of the previous year increased by 10 000 hl of pure alcohol;
Whereas Article 2 (c) of the said Protocol provides that, in cases where the application of that provision hampers the development of a traditional trade flow between the ACP States and the Community, the latter should take appropriate measures to remedy that situation, and Article 2 (d) thereof provides that to the extent that the consumption of rum increases significantly in the Community, the Community undertakes to carry out a new examination of the annual rate of increase;
Whereas economic data currently available leads to the conclusion that the traditional trade flows between the ACP States and the Community with respect to rum have greatly increased;
Whereas taking into account in particular the consumption requirements of the three new Member States ,the quota should be aligned in accordance with Article 2 (d) of the said Protocol,
HAS ADOPTED THIS REGULATION:
Article 1
From 1 July 1995 to 31 December 1995 the following products originating in the ACP States shall be imported into the Community free of customs duty within the limits of the relevant Community tariff quota shown below:
TABLE
Article 2
The tariff quota referred to in Article 1 shall be administered by the Commission which may take all administrative measures to ensure the effective administration thereof.
Article 3
If an importer presents in a Member State a declaration of entry for free circulation together with a request for preferential treatment for a product referred to in Article 1 and the declaration is accepted by the customs authorities, the Member State concerned shall inform the Commission and draw an amount corresponding to these requirements from the quota volume.
Requests to draw from the quota, indicating the date of acceptance of the said declarations, must be transmitted to the Commission without delay.
Drawings shall be granted by the Commission by reference to the date of acceptance by the customs authorities of the Member State concerned, of the declarations of entry for free circulation, provided the residual balance so permits.
If a Member State does not use the quantities drawn, it shall return them to the quota as soon as possible.
If the quantities requested are greater than the available balance of the quota volume, allocation shall be made on a pro rata basis. The Member States shall be informed by the Commission of the drawings granted.
Article 4
Each Member State shall ensure that importers of the products concerned have equal and continuous access to the quota volume as long as the residual balance so permits.
Article 5
The Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with.
Article 6
Council Regulation (EEC) No 3705/90 of 18 December 1990 on the safeguard measures provided for in the Fourth ACP-EEC Convention (1) shall apply to the products covered by this Regulation.
Article 7
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 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 July 1995. | [
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Commission Decision
of 9 July 2001
modifying Decision 98/634/EC establishing the ecological criteria for the award of the Community eco-label to bed mattresses
(notified under document number C(2001) 1610)
(Text with EEA relevance)
(2001/540/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 1980/2000 of the European Parliament and of the Council of 17 July 2000 on a revised Community eco-label award scheme(1), and in particular Articles 3, 4 and 6 thereof,
Whereas:
(1) Article 3 of Regulation (EC) No 1980/2000 provides that the eco-label may be awarded to a product possessing characteristics which enable it to contribute significantly to improvements in relation to key environmental aspects.
(2) Article 4 of Regulation (EC) No 1980/2000 provides that specific eco-label criteria shall be established according to product groups.
(3) Article 4 of Regulation (EC) No 1980/2000 provides that the review of the eco-label criteria as well as of the assessment and verification requirements related to the criteria shall take place in due time before the end of the period of validity of the criteria specified for each product group and shall result in a proposal for prolongation, withdrawal or revision.
(4) By Decision 98/634/EC(2), the Commission established ecological criteria for the award of the Community eco-label to bed mattresses, which, according to Article 3 thereof expire 1 October 2001.
(5) It is appropriate to prolong the period of validity of the definition of the product group and the ecological criteria without change, for a period of 18 months.
(6) The measures set out in this Decision have been developed and adopted under the procedures for the setting of eco-label criteria as laid down in Article 6 of Regulation (EC) No 1980/2000.
(7) The measures set out in this Decision are in accordance with the opinion of the committee set up under Article 17 of Regulation (EC) No 1980/2000,
HAS ADOPTED THIS DECISION:
Article 1
Article 3 of Commission Decision 98/634/EC shall be replaced by the following text: "The product group definition and the criteria for the product group shall be valid from 2 October 1998 until 1 April 2003."
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 9 July 2001. | [
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*****
COUNCIL DIRECTIVE
of 24 January 1983
amending Directive 78/176/EEC on waste from the titanium dioxide industry
(83/29/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 there have been difficulties for the Commission to submit, within the time limit stipulated in Article 9 (3) of Directive 78/176/EEC (3), suitable proposals for the harmonization of the programmes for the progressive reduction of pollution; whereas it is therefore necessary to extend the time limit concerned,
HAS ADOPTED THIS DIRECTIVE:
Article 1
In Article 9 (3) of Directive 78/176/EEC, the phrase '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 . . .' shall be replaced by 'By 1 July 1980 at the latest the programmes referred to in paragraph 1 shall be sent to the Commission, which, before 15 March 1983, shall submit suitable proposals to the Council . . .'.
Article 2
This Directive is addressed to the Member States.
Done at Brussels, 24 January 1983. | [
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COMMISSION DECISION of 8 June 1994 declaring the compatibility of a concentration with the common market (Case No IV/M. 269 - Shell/Montecatini) (Only the English text is authentic) (94/811/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 Commission decision of 7 February 1994 to initiative 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 Concentration (2),
Whereas:
(1) These proceedings concern a proposed joint venture in the polyolefins sector (Sophia) between Shell Petroleum NV (hereinafter referred to as 'Shell') and Montedison Nederland NV (hereinafter referred to as 'Montedison') which was notified to the Commission on 4 January 1994 pursuant to Article 4 of Regulation (EEC) No 4064/89 (hereinafter referred to as 'the Merger Regulation').
(2) On 26 January 1994 the Commission decided to continue the suspension of the notified concentration pursuant to Article 7 (2) of the Merger Regulation, and on 7 February 1994, initiated proceedings in this case pursuant to Article 6 (1) (c) of that Regulation.
I. THE PARTIES AND THE OPERATION The parties (3) Shell is a holding company within the Royal Dutch/Shell group of companies. Montedison belongs to the Ferruzzi group of companies. Its polyolefins interests are owned by Montecatini Nederland BV through two subsidiaries, Himont Incorporation (polyolefins) and Mopletan Spa (downstream applications).
The operation as notified (4) Under the original concentration plan notified to the Commission, Montedison would transfer to sophia, which is to be owned 50 % by Shell and 50 % by Montedison, all of its polyolefins interest word-wide, including production and marketing assets, intellectual property rights and R& D facilities, as well as all upstream and downstream activities. Montedison would retain only residual activities in one of the markets of the joint venture, namely the rights to license the Spheripol process for the manufacture of polypropylene (hereinafter referred to as 'PP') to third parties in the United States of America. As to its pre-existing joint ventures in the PP production sector, Montefina Himont/Petrofina) and NSP (Himont/Statoil), under the original concentration plan, Montedison would either transfer Himont's shareholding to the other joint-venture partner (i.e. Petrofina or Statoil) or Himont's interests would be owned by Sophia.
(5) Shell would contribute to the jont venture the major part of its world-wide PP and polythylene (hereiafter referred to as 'PE') business. Shell would retain outside the joint venture:
- its polyolefins business in the United States of America (a PP production plant and 50 % participation in a joint venture between Shell and Union Carbide Corporation (hereinafter referred to as 'UCC') operating a PP plant at Seadrift, Texas),
- its interests in three joint ventures, one of which, ROW, is in Europe. ROW is a joint venture between Shell and BASF engaged in the production and sale of a wide range of olefins and polyolefins,
- all its existing upstream interests, in particular steam crackers producing ethylene and propylene with the exception of the Aubette platform at Berre in France,
- certain downstream activities (Wavin BV and Symalit AG),
- its non-polyolefins polymer interests.
The operation as subsequently amended (6) Following the Commission's Communication pursuant to Article 18 of the Merger Regulation and in order to meet the competition concerns expressed therein, the parties amended the original concentration plan by entering into commitments vis-à-vis the Commission set out in recitals 116 to 119. Upon fulfilment of these commitments, the original operation would be modified as follows:
- Montedison's world-wide PP technology business would remain outside Sophia by its transfer to a company (Technipol) under the sole ownership and control of Montedison. Technipol's assets would inter alia comprise Montedison's world-wide PP technology licensing business - including licensing contracts, the exercise of the corresponding intellectual property rights, sales, marketing and support staff - the corresponding R& D staff and facilites relating to both process and catalyst technology, as well as a PP pilot plant for PP technology development and testing.
- Montedison/Himont would withdraw from Montefina and would sell its shareholding therein to Petrofina or a third party.
- Montedison would contribute to Sophia its remaining world-wide polyolefins interests, including its world-wide assets relating to the production and sale of PP, and its world-wide activities in other polyolefins sectors, including all upstream and downstream assets. Shell's contribution to Sophia would be as originally planned.
- Technipol would have all the financial or other resources necessary to enable it to conduct its business on an on-going, viable and competitive basis, independent of Sophia and Shell. Any relationship between Sophia or Shell on the one hand and Technipol on the other hand would be on arm's length basis and on normal commercial terms.
II. COMMUNITY DIMENSION (7) The proposed concentration has a Community dimension. In 1992, the combined aggregate world-wide turnover of Shell and Montedison was more than ECU 5 000 million and each of the undertakings achieved more than ECU 250 million of their turnover in the Community. The parties did not achieve more than two-thirds of their Community-wide turnover in one and the same Member State.
III. CONCENTRATION (8) The notified operation, as amended on the basis of the undertakings given by the parties, is a concentration within the meaning of Article 3 of the Merger Regulation, because, as explained below, Sophia will perform, on a lastings basis, all the functions of an autonomous economic entity and there will be no appreciable scope for coordination of the competitive behaviour of the parents between themselves or with the joint venture within the meaning of that Article.
Joint control (9) Sophia will be owned 50 % by Shell and 50 % by Montedison. The joint-venture agreement provides that major decisions must be approved by both parties. These include: the overall annual capital budget, fundamental changes to the joint venture's policy or strategy, borrowings in excess of US $ [. . .] (3) per annum, investments or investments in excess of US $ [. . .] million and entering into or extending feedstock arrangements. Therefore Shell and Montedison have joint control over Sophia.
(10) Shell is expected to assume a leading role in the management of the entreprise, because inter alia it will have the final say on the appointment of the Chief Executive Officer of the joint venture and the Shell-nominated directors will be able to decide all general matters except for those of fundamental or strategic importance.
Joint venture performing on a lasting basis all the functions of an autonomous
economic entity
(11) Sophia will have all the assets and resources necessary to enable in to perform all the functions of an autonomous economic entity in the polyolefins sector. With regard in particular to the PP production sector, although Montedison's PP technology business will remain outside the joint venture, this does not negate the character of the joint venture as an autonomous economic entity on the PP technology but operate under licence by a pp technology provider. Moreover, Sophia will continue to employ its existing PP technology and the extent that it may need to purchase technological improvements or other technical services from Technipol, it is provided in the commitments given by the parties that this will be undertaken on an arm's length basis and on normal commercial conditions.
Absence of coordination of competitive behaviour (12) Sophia will be active in the following sectors: production and sale of PP; production and sale of PE and PE technology; production and sale of ethylene and propylene; and downstream activities in the areas of film and fibres. According to the amendments introduced to the original concentration plan, Sophia will not remain active on the market for PP technology as defined in this Decision, because Montedison's world-wide technology business will be transferred to Technipol and Shell's existing activities on the PP technology market, wich are based on its cooperation with UCC, will not be contributed to Sophia.
(13) As stated above, Montedison will contribute to Sophia all of its world-wide polyolefin interests, with the exeption of its PP technology business, and will thus withdraw from the markets of the joint venture. Sophia's other parent, Shell will remain active in some of the joint venture's markets, since it will retain certain of its polyolefin interests outside Sophia. However, since Shell will assume the overall industrial responsability for the joint venture, there is, in this respect, no appreciable scope for coordination between Shell and Sophia within the meaning of Article 3 (2) of the Merger Regulation.
(14) Following the concentration, Sophia's parents will remain active on the market for PP technology, Montedison through Technipol and Shell as a contributor to the Unipol PP technology that combines UCC's process and Shell's catalysts. Although this market is situated upstream from the joint venture's market for the production and sale of PP, the Commision considers that the parents would coordinate their behaviour with regard to PP technology licensing within the meaning of Article 3 (2) of the Merger Regulation.
(15) In the specific circumstances of this particular case, there are a number of factors indicating that the parents' ownership of Sophia would not be likely to lead to the coordination of their competitive behaviour on the PP technology market. The turnover of the business to be transferred to Technipol represents only a small percentage of Montedison's total annual PP turnover approximately [. . .], and it is even Smaller in terms of Sophia's total turnover. Moreover, according to the parties' commitment, Technipol will be operated completely independently of Sophia and Shell and will have sufficient own financial resources. Shell will have no shareholding in Technipol, so that 100 % of Technipol's profits will accrue to Montedison [. . .]. Consequently, Montedison, which will alone control Technipol's commercial strategy would seem to have a genuine interest in continuing an active licensing policy in order to maximize the return on its investment in Technipol.
(16) At the same time it must be acknowledged that the other parent of Sophia, Shell also conducts a PP technology licensing business, However, the relationship between the two technologies, Spheripol and Unipol, will be a distant one. Whereas Montedison's licensing business will be directly conducted through a fully-owned and controlled subsidiary, Shell's activities on that market will be based on a cooperation agreement with a third party, UCC, which shares control of these activities whith Shell and which, subsequent to the concentration, would continue to have an interest in active licensing. Shell Oil would also seem to have an interest in active licensing, since it has made substantial investments in a new catalyst plant for the Unipol technology [. . .]. With respect to Shell, it is currently using Unipol in some of its own PP plants and would this seem to have an incentive to maintain the viability of that technology.
(17) Futhermore, from the financial perspective, Shell has no interest in Montedison's PP technology business and Montedison has none in Shell's PP technology business with UCC. In The PP technology market there is a relatively limited number of contracts each with high value (of the order of ECU 10 million). The incentive to win an individual licensing contract is, as a result, strong. In a bidding situation for new PP licensing contracts, each of Unipol and Spheripol would therefore have an interest to bid and thus compete against the other, since it is only in the event of a contract award that the successful licensor will receive any licensing income and thus realize a return on its investment.
In the specific circumstances of this case, it appears therefore that coordination between the parents within the meaning of Article 3 (2) of the Merger Regulation is not likely to occur.
IV. COMPETITIVE ASSESSMENT OF CONCEN- TRATION AS NOTIFIED (18) The present analysis relates to the competitive effects of the concentration as notified to the Commission. According to the original concentration plan, the businesses contributed to the joint venture would relate to the following economic sectors: production and sale of PP and PP technology; production and sale of PE and PE technology; production and sale of ethylene and propylene; production and sale of flexible films for consumer goods packaging, flexible films for good packaging, melt spun fibres, non-women fibres, and tapes/fibrillated tapes.
(19) There is no overlap between the activities of the parties with regard to: (i) ethylene and propylene (upstream markets in relation to polyethylene and polypropylene), because Montedison does not produce ethylene and has no free market sales of propylene; (ii) dowstream activities (flexible films for consumer goods packaging; flexible films for good packaging; melt spun fibres; non-woven fibres; and tapes/fibrillated tapes).
(20) PE is one of the businesses contributed to Sophia. PE is derived from ethylene through polymerization. There are three different types of PE, high density polyethylene (hereinafter referred to as 'HDPE'), low density polyethylene (hereinafter referred to as 'LDPE') and linear low density polyethylene (hereinafter referred to as 'LLDPE'). According to the notifying parties, the market, while LDPE and LLPDE should be considered to form another relevant product market. As to the geographic market definition, it appears that the production and sale of PE takes place throughout western Europe, with both customers and suppliers being located throughout the region. It is not, however, necessary to decide on the exact product and geographic market definition in this case, because, as exlained below, even on the basis of a narrow market definition in this case, because, as explained below, even on the basis of a narrow market definition the proposed concentration will not create or reinforce a dominant position in the common market or substantial part thereof.
(21) Shell produces LDPE and LLDPE. Its market share in western Europe in terms of capacity is below 10 %. Montedison has not yet started producing PE, [. . .] and its strenght in this area lies in PE process technology (Spherilene), which it will contribute to the joint venture. However, it does not appear that dominance will be created for the following reasons: (i) with regard to the production and sale of PE, there are number of other players more important than Shell, including companies such as Enichem, BP, Borealis and Dow Chemical; and (ii) with regard to PE technology, alternative technologies are available, such as that offered by UCC, which can be regarded as adequate alternatives.
(22) In the light of the above, the following analysis will focus on the effects of the concentration on the market for the production and sale of PP and the market for PP technology.
A. Product market definition (i) Production and sale of PP
(23) PP belongs to the category of polyolefins, that is a family of thermoplastics derived from a particular group of base chemicals known as olefins, which also includes PE and polybutelene (PB). Olefins are typically derived from oil or natural gas. The production of polyolefins involves the following main stages. In the first stage, hydrocarbon feedstocks for base chemicals (naphtha, ethane, etc.) are obtained from oil or natural gas. The base chemicals such as olefins (e. g. ethylene and propylene) are then produced by means of steam cracking or dehydrogenation. Polyolefins are derived from olefins through polymerization, a process during which monomers (olefins) are reacted with each other to produce long chains of a repeated series of monomers (polymers). Polyolefins are further processed by the plastics industry to manufacture a wide range of consumer goods, including films, fibres, moulded and extruded products.
(24) PP is used by the plastics processing industry for a large number of applications, the most important of which are film, fibres, automotive components such as bumpers and dashboard systems, domestic appliances, garden furniture, crates, cases and pails, caps, closures and thin-walled packaging containers, waste and chemical pipe applications, tapes and sheets used in packaging and construction, food packaging. The special characteristics of PP include the lowest density of all thermoplastics, easier colouring, high temperature resistance, high frictional resistance, more flexible design.
(25) According to the notifying parties, although there is some degree of fringe substitutability between PP and PE, especially HDPE, or other materials, PP is not fully substitutable by other materials for all applications. The Commission's investigations also confirm that PP is not sufficiently substitutable by other thermoplastics or other materials for most applications because of its special properties and its advantageous cost/performance ratio. Therefore, the relevant product market is the market for the production and sale of PP.
(26) There are three main types or families of PP, namely homopolymers, which account for approximately 70 to 75 % of PP consumption, random copolymers which account for approximately 5 % of PP consumption and impact or block copolymers which account for approximately 25 % of PP consumption. The properties and end uses of the three types of PP are not the same. Homopolymers are made in commodity and speciality grades. They are more rigid and have better resistance than copolymers but their impact strength is inferior. Block copolymers are particularly suitable for applications where very high impact strength is required (such as in the automotive sector). PP random copolymers are mainly used in films (document folders, packaging and laminating, heat sealable layers) due to their transparency, good resistance to heat distortion and ease of processing. On the supply side, all three types of PP are made by polymerizing propylene, although ethylene is also added during the polymerization of impact and random copolymers. Homopolymers and random copolymers are produced in the same reactor (homopolymer reactor), but a second reactor (copolymer reactor) is needed for the production of block copolymers. Since not all PP plants are equipped with a copolymerization reactor, there appears to be limited supply-side substitutability between block copolymers and other types of PP, with the result that block copolymers may be considered as a separate product market. This question can, however, be left open, because regardless of a broader or narrower market definition, as explained below, the assessment of the effects of the merger does not change.
(27) Within these three different families of PP there are a variety of different grades. There are a number of distinguishing factors between PP grades, including viscosity as measured by the melt flow ratio, the presence of different chemicals and additives, molecular weight distribution, crystallinity and morphology. Speciality grades are often developed at the request of or in cooperation with customers. Since PP grades differ in terms of their characteristics, price and intended use, they are not interchangeable from a demand-side point of view. On the other hand, it appears, that within each family of PP (i. e. homopolymers, block copolymers and random copolymers), PP manufacturers can relatively easily switch production from one grade of PP to another by varying the conditions of polymerization (reactor pressure, temperature), or by using different additives. Economic considerations play a role in this respect, but it appears that PP plants can be operated in a way which avoids unnecessary switches between different grades and thus minimizes the production of off-grade material. Due to the very high degree of supply-side substitutability, it therefore appears that, within each PP family, different grades cannot be regarded as constituting separate relevant product markets.
(ii) PP technology
(28) PP is made by polymerizing liquid propylene (bulk polymerization) or propylene gas (gas-phase polymerization). For the production of certain types of PP, ethylene (or another monomer) is added either at the onset of polymerization (random copolymers) or at a later stage (block or impact copolymers). Additives or modifiers may also be added to further enhance or change certain characteristics of the polymer desirable for specific applications. In all cases, the polymerization of propylene in order to produce PP involves at least the following elements: (i) the raw material, propylene; (ii) a suitable catalyst, that is a chemical substance used in polymerization to promote the chemical reaction without being itself affected by it; (iii) the technology and know-how necessary for the use of the catalyst in polymerization; and (iv) the process technology and know-how necessary to design and use equipment in which polymerization takes place.
(29) Following the development of the basic catalysts for PP production in the 1950s, PP catalyst, process and product technology has advanced in the last 30 years largely due to catalyst improvements. The transition from the old slurry processes to the more advanced bulk and gas-phase processes was a consequence of important innovations in the area of catalysts. In particular, this resulted in substantially higher catalyst yield. In the early 1960s a kilogram of catalyst yielded about 1 000 kgs of polymer, while catalyst developments have improved that yield to between 20 000 and 50 000 kgs of polymer. Similar improvements have been the development of superior properties of the PP and the simplification of the process by reduction of the polymerization steps (e. g. the increase in catalyst yield reduced the catalyst quantity left in the reactor to such an extent that removal of catalyst residue became unnecessary).
(30) Substantial research is currently carried out mainly in the area of 'advanced materials', i. e. materials extending or combining the characteristics of different polyolefins and thus suitable for certain specific applications. However, it is not expected that a fundamentally new PP resin production process will be developed and commercialized within the next 10 years. A number of companies are also currently working on a new generation of catalysts, namely metallocenes. It cannot be precisely predicted at the moment how widely this new generation of catalysts will be used. Current research in this area is aimed at enhancing the properties of PP for certain specific applications (e. g. syndiotactic PP) within the context of existing PP processes. According to industry sources, several years' more research and development will be required before the innovative potential of these catalysts can be fully exploited. In any case, it appears that metallocene catalysts will not be fully commercialized for at least another five to seven years. As regards Himont's own research and development efforts, they are mainly concentrated on advanced materials combining properties belonging to different polymers on the basis of its newly developed Catalloy and Hivalloy technology.
Intellectual property rights
(31) The development of new or improved PP technologies is patented or otherwise protected by intellectual property rights. A PP manufacturer who has not developed his own technology will operate under a licence from a PP technology provider on the basis of which technical information (know-how) relating to both the process and the catalyst will be disclosed and immunity under the relevant patents will be granted. In return, the licensee is obliged to treat all technical information as confidential and proprietary information unless it is or becomes public knowledge.
(32) In the area of intellectual property rights, ownership of patents for the basic invention as well as subsequent improvements may prove to be a barrier to entry into the technology market. Improvements can themselves represent a significant technological breakthrought (e. g. the introduction of electron donors that resulted in a substantial increase in the catalyst yield). These patents can delay or even indefinitely postpone new entry by operators who seek to develop new technology that does not infringe them. In this respect, the risk of lengthy and expensive patent litigation would seriously undermine future licensing activities, because both the licensor and the licensee could be sued by the owner of the intellectual property right for patent infringement. A non-assertion agreement with the initial patent holder would remove this uncertainty but this in fact makes potential entry and its conditions dependent on the patent holder's consent.
Market structure
(33) There is a significant amount of licensing activity in the PP industry, PP manufacturers being either licensors or licensees of PP technology. This licensing activity takes place in a market separate from that for the production of PP. Customers in this market are PP producers who need the technology required to manufacture PP and suppliers are as a rule PP manufacturers (although UCC is not an active PP supplier) who have developed and are willing to license PP technology.
Suppliers
(34) On the supply side, the provider of technology discloses to the customer the techical knowledge necessary to design, construct and operate a plant for the production of PP and allows him to sell the PP produced by giving him and his customers immunities under the relevant patents. Refinements or optimizations of the technology but not revolutionary improvements are normally communicated to the licensee from time to time. This basic service is accompanied by associated services such as technical support, customer assistance or engineering services - in some cases the plant itself is constructed by the licensor. The catalyst included in the package is either provided directly by the licensor or manufactured by the licensee under licence from and on the basis or technical knowledge communicated by the licensor.
Customers
(35) On the demand side, customers are normaly PP manufacturers who do not have their own PP technology. In view of the substantial costs represented by original research and development, the prior expertise needed and the uncertain results of development work, a number of PP producers prefer not to develop their own R& D and therefore need a licence from companies who have the required technology.
(36) Companies with in-house R& D may also be potential customers. For instance, companies who have developed their own catalysts may need to obtain a patent settlement agreement or a bare patent licence before they are allowed freely to operate these catalysts and, in any event, they lack a process for the manufacture of PP which they need to license from a third party. Moreover, since for technical reasons, the harmonization of separate catalyst and process technologies to achieve efficient production is complicated and expensive, the practice of such companies is to purchase initially an overall technology package and to seek subsequently to replace the licensor's catalyst. As a result, these companies are, in the Commission's view, on the market for PP technology. Even companies who have developed their own PP process and catalyst combination may select another technology package if it is more efficient or better suited to their product requierements.
(37) Customers for licences may be new entrants to the PP industry or existing licensees who want to expand their current PP capacity. Provisions of existing licensing agreements regarding future capacity expansion vary. In some cases the licensee has the option, in return for additional royalties, to use licensed technology for a capacity increase at the same plant, while in other cases this option also covers a capacity increase realized by the construction of new plants within the territory of the agreement (usually one or several countries). In any event, the Commission considers that the option holder is impervious to the relative merits of other market alternatives . On the contrary, the value of the option is precisely determined by these alternatives. If effective competition on the market for PP technology licensing means that a different licensing contract is more attractive, the option holder will not exercise the option and will purchase another licence. Alternatively the option holder may renegotiate the terms of the option with the original licensor on terms that are more favourable and reflect the competitive pressure from the other licensing contract. In conclusion, an option holder is, in the Commission's view on the market for technology licensing and benefits from the presence of effective competition therein.
(38) PP manufacturers naturally benefit from the availability of high-performance and cost-effective technologies. Access to technology is of itself vital, because otherwise new entry or capacity expansion by existing players dependent on technology licensing cannot be realized. The selection of a technology for a plant has long-term implications given the substantial costs involved and the 20 to 30 year life time of a plant once built. Competition on the technology market ensures that the best outcome in terms of price, quality and other competitive parameters is reached with regard to an indispensable element of PP production.
Demand for licences
(39) An increase in actual or expected demand for PP leads to plant expansion and to a demand for licences. In practice demand has tended to concentrate within certain periods ('licensing rounds') due to the simultaneous decision of a number of producers to expand their capacity on the basis of demand forecasts. However, a more limited amount of licensing activity also takes place between those periods. A 'licensing round' took place from 1985 to 1989. Licensing activity was subsequently reduced due to excess PP capacity in the industry.
(40) According to industry sources, over the next 10 years the world PP market is projected to grow at an average rate of 6 to 7 % per annum. The western European and the North American markets are projected to grow at a rate of 5 to 6 % per annum, while in the rest of the world growth is projected at 10 to 15 % per annum. As a result, it is expected that additional PP capacity will be needed in the industry. Expansion of current PP capacity can take different forms, including de-bottlenecking of existing plants or construction of new plants, depending inter alia on the size of the planned increase (e.g. expansion through de-bottlenecking may have capacity limitations) and the strategy of the companies concerned (e.g. a company planning to act as a player in several countries may choose to built a plant in a different location to its existing one). In any case it is expected that the need for capacity expansion will lead to a substantial increase in the demand for technology licences world-wide. A number of companies already have concrete plans for expansion and they have started considering the available technologies with a view to obtaining a licence. The question of demand for licences in western Europe in particular will be dealt with below.
'Process-plus-catalyst' package
(41) As a rule PP technology is developed and licensed as a package made up of a polymerization process and a catalyst. The role of the catalyst in polymerization is important, because it determines the properties of the PP. The design of the process is influenced by the catalyst to be used and the introduction of a different catalyst will normally affect the resulting product range.
(42) In practice some licencees of a PP package have developed their own catalyst in order to change the properties of the final product for certain specific applications. However, this does not imply that, for the purposes of product market definition, a distinction should be made between process and catalyst. It has been the practice of licencees to purchase an overall technology package and to seek to develop catalysts that can complement or replace the catalyst originally licensed only subsequent to the purchase of the initial package. According to the Commission's investigations, if PP manufactures wished to build a new plant today, they would also normally seek a single licence comprising the whole package as opposed to separate licences for the process and the catalyst. This is the case because catalyst development normally takes at least several years (typically a minimum of three to five years), requires considerable R& D expenditure and substantial prior technological expertise and is risky. Moreover, the licensor's perfomance guarantee will only cover the 'process-and-catalyst' package as originally licensed. On the basis of the above, and notwithstanding the possibility that some PP licences may wish to purchase process and catalyst technology separately, the Commission considers that, for the purposes of this decision, the definition of the relevant product market for PP technology can be based on the package represented by 'process-and-catalyst' technology.
Slurry processes distinguished from advanced gas-phase or bulk processes
(43) Gas-phase and bulk processes are a more simplified and efficient PP production route compared with the older slurry processes which were widely used in the industry until the 1980s. Bulk and gas-phase processes involve fewer processing steps, because the use of a high-efficiency catalyst makes it unnecessary to remove catalyst residue or the atactic component of the final polymer. Other advantages of the bulk and gas-phase processes include lower energy consumption, lower capital investment per tonne of capacity and better environmental protection. Some producers still continue to operate the older, existing slurry plants (about 25 % of total western European PP capacity), usually in combination with a performance-enhancing high-yield/high-stereospecificity catalyst since these plants are fully depreciated. However, no new slurry plants are being built. According to the Commission's investigations, if PP producers wished to expand their PP production capacity by building a new plant today, they would seek to obtain a licence for a new generation process - bulk or gas-phase - as opposed to an old slurry process. It appears, therefore, that the relevant product market for PP technology should be defined on the basis of advanced technology only (bulk and gas-phase) and that slurry technology should be excluded from this definition.
Conclusion
(44) On the basis of the above, it appears that the licensing of advanced PP technology and other associated services as defined above constitute a distinct product market upon which the effects of the proposed joint venture should be assessed. This is an upstream market in relation to the market for the production and sale of PP. Dominance in the PP technology market would enable a PP technology provider to exercise market power with regard to an essential element of PP production.
B. Geographic market definition (i) Manufacture and sale of PP
(45) According to the Commission's enquiries, many customers purchase PP from several sources located in different Member States, rather than purchasing solely from one supplier. On the other hand, customers for PP in western Europe rely on producers with plants located within that area for the vast majority of their supplies.
(46) In their replies to the Commission's questionnaires, customers stated that PP transport costs have an important influence on the choice of supplier. Transport costs depend inter alia on the mode of transportation and the location of the customer vis-à-vis the location of the supplier. The main mode of transportation of PP is by truck and, to a lesser extent, by rail, sea or the combined use of sea/truck and truck/rail modes, with the destination of the shipment influencing the choice of transportation mode to reduce costs based on the most efficient means of transportation.
(47) PP is usually supplied either in bulk truckloads by road tankers or the same tonnage is packaged in 25 kg polyethylene sacks stacked on pallets and shrink-wrapped. Transport costs are also substantially affected by the availability of return loading of the vehicle (i.e. the possibility of back-hauling), as well as local country regulations and the competitive hauling situation.
(48) According to the replies to the Commission's questionnaires, transport costs are sufficiently high that customers do not consider producers from outside western Europe, e.g. the United States of America or Japan, to be alternative sources of supply. In addition, it appears that current import duties - amounting to 12,5 % on imports from developed countries, to be gradually reduced to 6,5 % within a period of five years starting from 1995 insulate the western European market to some extent and that the need for after-sales technical support also limits the geographical choice of suppliers. It appears, therefore, that the relevant geographic market for the production and sale of PP is western Europe.
(ii) PP technology
(49) Competition in the licensing of PP technology takes place on a wider geographic market than competition in the manufacture and sales of PP itself, specifically, on a world-wide basis. Licensors of PP technology can compete for business wherever a potential customer seeks to license technology and these licensors can offer their technology to customers located anywhere in the world.
(50) The licensing of the package of PP technology generally includes certain input from R& D and technical personnel of the licensor who will be on-site at the new plant of the licensee and such technical staff will always be required to travel to new plant sites. The costs of providing technical personnel at the new plant during start-up and subsequent technical support are generally borne by the licensee and they do not appear to be sufficiently substantial to deter a potential license from choosing a licensor not located within his geographical area.
(51) Licensors are generally active world-wide, and although as explained above the intensity of their activity depends on their position in the downstream PP market, this does not affect the conclusion that the market for licensing of PP technology is a world market.
C. The effects of the concentration as notified (52) Dominance on the technology market have a restraining effect on the PP industry's future plans and opportunities for expansion and would thus have negative repercussions on the downstream market for the production and sale of PP. Therefore, the Commission will assess first the competitive effects of the joint venture on the market for PP technology.
(i) PP technology
(53) As indicated above, PP technology is, as a rule, developed and licensed as a package involving a production process and a catalyst. The two leading package technologies in the PP industry, accounting for about [ . . . ] (4) of plant capacity under licence, are the Spheripol technology licensed by Himont and the Unipol technology which combines a process developed by UCC and a catalyst developed by Shell.
(54) Himont, Montedison's subsidiary, has been at the forefront of PP technology (both process and catalyst) since the early years of PP production. Himont research goes back to the development and commercial exploitation of the first industrial process for the production of PP based on the modification of Ziegler's catalyst in 1954 by Nobel Prize Winner Giulio Natta, a consultant to Himont's research team at Ferrara. Himont's Spheripol process is currently the most widely licensed PP technology. It is a hybrid process consisting of a first-stage loop reactor (bulk polymerization) for the production of homopolymers and random copolymers and a second-stage gas-phase reactor for the production of impact copolymers operating in series with the first reactor. On the basis of a 1975 agreement, Himont and the Japanese company Mitsui Petrochemical Industries (hereinafter referred as 'Mitsui') jointly developed catalysts that resulted in high product yield and high stereospecificity (HY/HS catalysts). Subsequently, both parties have continued their collaboration on HY/HS catalysts. Today each party has its own process technology, Spheripol (Himont) ans Hypol-stirred bed reactor (Mitsui), but both use jointly developed catalysts. The licensing activities of the parties with regard to both the Hypol and Spheripol process as well as related catalysts are the object of a Research and Development Cooperation Agreement between himont and Mitsui which is further analysed below.
The Shell Oil/UCC relationship
(55) Shell has developed its own PP process, Lippshac, but has not licensed it to third parties, other than joint ventures in which Shell has an interest. On the other hand, shell contributes its high-yield SHAC catalysts to a joint venture with UCC, which includes a PP plant in seadrift, Texas. The basis of the cooperation between Shell and UCC is a Cooperative Undertaking Agreement (hereinafter referred to as 'the CUA') signed in 1983 between UCC and Shell Chemical, a division of Shell Oil Company. Shell Oil is a US company controlled by Shell Petroleum Incorporation, a 100 % subsidiary of the Royal Dutch/Shell group of companies.
(56) According to the CUA, which expires in [ . . . ], the purpose of the agreement is to combine UCC's fluidized-bed process and Shell's SHAC catalyst with a view to developing a PP technology package and licensing it to third parties. The abovementioned seadrift demonstration plant [ . . . ] is used as a [ . . . ] manufacturing facility [ . . . ]. UCC is not otherwise active in PP production and relies on Shell Oil for PP market know-how. The initial laboratory experiments relating to the original SHAC catalyst took place [ . . . ]. The resulting technology package, Unipol, has been to date the main competitor of Himont's Spheripol technology.
(57) Shell Oil's contribution to the current Unipol technology package is important. Shell Oil supplies the catalysts used in the Unipol package and is responsible for their improvement. It is involved in the marketing of the Unipol technology, including technical presentation of the catalyst to potential customers. Finally, it provides customer support/technical assistance with regard to the catalyst, prices the catalyst, invoices catalyst sales and shares licensing revenues with UCC.
(58) As a result of joint venture between Shell and Montedison as originally notified, two fully-owned subsidiaries of the Royal Dutch/Shell group of companies would be linked with the two leading PP package technologies in the industry. In particular, Shell would be the industrial leader of Sophia which, under the original concentration plan, would develop and market the Spheripol technology whilst at the same time Shell Oil would provide the catalyst used in the Unipol technology package.
(59) According to Shell, Shell Oil is managed as an autonomous entity within the Royal Dutch/Shell group and competes with the other subsidiaries of that group. Whilst it could appear that Shell Oil may have conducted its business with a certain degree of autonomy in relation to the Royal Dutch/Shell group, from the point of view of the application of the Merger Regulation, the parties' argument cannot be accepted on structural grounds. Under the provisions of that Regulation, a fully-owned subsidiary must be considered to fall under the ultimate control of the parent company of the group.
(60) In the particular case, Royal Dutch/Shell's control over the competitive behaviour of its two subsidiaries would have an important effect on the PP technology market. Prior to the concentration the rivalry between Spheripol and Unipol was the main competitive relationship on the market. Subsequent to the original concentration, these two technologies would no longer be sufficiently independent of each other, since Himont's PP technology business would have been included in Sophia.
Market shares
(61) Spheripol and Unipol are two leading technologies in the PP industry. Out of the total number of non-slurry PP technology (bulk and gas-phase) licences granted to date, Himont licensees account for about [ . . . ] (5) of world-wide PP plant capacity operating under licence (excluding licences to licensor's own plants and to joint ventures in which the licensor has a 50 % or more interest), Unipol licensees for about [ . . . ] (5), BASF licensees for about [ . . . ] (6), Mitsui licensees for about [ . . . ] (6) and others (Sumitomo, Acomo) for about [ . . . ] (7).
(62) The notifying parties have argued that these high market shares reflect the relative success of Spheripol and Unipol in the 1980s and are not a reliable indicator of future market power. However, the high market shares of the two technologies are confirmed by recent licensing decisions. Out of the total number of licences granted in the last five years world-wide, Himont licensees account for about [ . . . ] (5) of world-wide PP plant capacity, Unipol licensees for about [ . . . ] (5), BASF licensees for about [ . . . ] (6), Mitsui licensees for about [ . . . ] (6) and others (Sumitomo, Amoco) for about [ . . . ] (7).It is the view of the Commission that these high market shares reflect the importance of Spheripol and Unipol as a competitive force on the technology market due to a variety of factors that are analysed below.
Arguments put forward by the parties
(63) According to the parties, the concentration will not create or strengthen dominance because:
1. as to the supply side: (i) the supply of PP technology is competitive today and will remain so; (ii) the technology market is inherently volatile and fast changing. New entry is possible and likely;
2. as to the demand side: (i) there is likely to be no or only minimal demand for new licences in western Europe until the end of the century; (ii) in western Europe most current and potential licenses are increasingly technologically sophisticated.
(64) For the reasons explained below, however, the Commission considers that:
1. as to the supply side: (i) other advanced technologies currently offered for licence do not appear to be able significantly to constrain the parties' competitive behaviour; (ii) although the technology market is to some extent dynamic, new entry is not likely to occur in a manner capable of constraining quickly and significantly the exercise of market power;
2. as the demand side: (i) it is expected that demand for licences in western Europe until the end of the century will be significant; (ii) the technological sophistication of western European producers cannot significantly constrain the exercise of market power by a dominant technology provider.
Criteria for selection of technology
(65) In their replies to the Commission's questionnaires, PP manufacturers identified a number of factors which are considered to be important when selecting a PP technology:
(i) Product range/product characteristics: a technology must be suited to the product needs of the prospective licensee based on his strategy to gain access to or reinforce his presence in different PP market segments. In well-developed markets, such as Western Europe, all product types and a number of identified grades within each product type will normally be required by manufacturers building new plants. In this context, it is important that plants operating on the basis of the technology under consideration do exist and have already produced a number of commercial grades approved on the marketplace. In this respect, a distinction in sometimes made between, on the one hand, the capability of a technology to produce a number of grades because of its ability to manufacture PP with properties that these grades have and, on the other hand, the fact that a technology has already developed a number of commercially qualified grades sold in the marketplace. It appears that for a potential licensee the second criterion is important when assessing the comparative merits of alternative technologies. To a prospective licensee the existence of commercially qualified grades produced on the basis of a technology is a reassurance that he will have the possibility to enter a new market on an equal footing with established players or to continue serving its existing customers without having to go through the risky and time-consuming process of re-qualifying grades.
(ii) Simplicity of operation including flexibility in switching between different grades.
(iii) Cost/performance ratio evaluated on the basis of the expenditure needed for the construction of the plant and operating costs including royalties.
(iv) Track record of licensor, proven value of his technology: the existence of a large number of plants operating on the basis of a technology and serving various PP market segments or geographic markets is a guarantee that that technology is capable of producing commercially qualified and accepted grades. Moreover, a prospective licensee would be able futher to asses the value of the technology by visiting a number of operating plants of various capacities designed by the licensor and by using prior licensees as reference contacts. As a result, the risk factor in the selection process would be minimized. This is important, since licensing decisions involve substantial investment costs and are made for the lifetime of the plant (20 to 30 years). Even sophisticated licensees such as Western European PP producers regard the track record of the licensor as a significant factor in the selection process.
(v) Proven ability to construct larger plants. The size of a plant is important for the realization of economies of scale. In Western Europe for instance, new plants would today normally have a capacity of at least 120 000 to 160 000 tonnes and in a number of cases even larger plants would be required.
(vi) A large licensing pool in the context of which improvements to the licensed technology can be exchanged. Although sophisticated licensees with in-house technology may decide not to participate in a licensing pool so that they will not be obliged to communicate their own improvements in return, a large licensing pool appears to be important for less sophisticated licensees who rely on the licensor for technology updates. Communication of improvements appears to be particulary important with regard to the application of the catalyst used.
Advantages of Spheripol and Unipol
(66) The final choice in each case will result from a global judgment balancing the respective advantages of the various technologies. It appears, in this context, that Spheripol and Unipol are the two technologies that best combine the above elements and are generally considered to be broadly equivalent alternatives. Spheripol and Unipol have the most extensive grade coverage, they enjoy the best commercial track record, they have constructed a number of plants of various sizes operating on the market and they are truly global licensors with presence in and knowledge of the specificities of different geographic markets and of the product needs of licensees. Active competition between Spheripol and Unipol has been in the past the main driving force on PP technology market.
(67) The large number of licences that Spheripol and Unipol granted to date is important in terms of licensing revenue which can support their licensors' future research and development efforts in the area of PP technology. In addition, it appears that there are advantages in choosing the technology already used in existing plants for an expansion of capacity. These advantages are technological - e.g. knowledge of the capabilities and operation of the technology - or other - e.g. avoidance of delays due to the need to retrain staff and re-qualify grades for established customers - and they translate into cost saving and optimal production results for the potential licensee. Provided that the technology used in existing plants in up-to-date and suited to the licensee's future product range, it appears that 'installed capacity' has an influence on future licensing decisions and tends to reinforce the current market position of established players. On that basis, existing Spheripol and Unipol licensees may have a disincentive to switch to alternative technology providers.
Patent rights
(68) Himont is the owner or co-owner of all important patents for the basic intervention as well as subsequent improvements of the current generation of PP catalysts, namely supported catalysts, The exercise of patent rights may act as a barrier to entry into the PP technology market. In practice, there has been a series of patent disputes between Himont and new or potential catalyst producers regarding the validity of the latter's catalysts under Himont's patents. In all cases, these catalyst producers, including [. . .], have found it necessary to conclude non-assertion agreements with Himont in return for the payment of a lump sum or a percentage of the royalties obtained from the future sale of the catalyst, in order to avoid the risk of patent litigation. The duration of Himont's improvement patents in the area of supported catalysts which extend into the next century will continue to enable Himont to influence the possibility and conditions of new entry and thus entrench its current position on the technology market.
Views of PP manufacturers
(69) According to the Commission's investigations, Spheripol and Unipol are perceived as the two leading technologies in the industry and a number of PP manufacturers would be concerned if competition were eliminated between them. Spheripol and Unipol are considered to be commercially proven technologies, well known in the market and fully available for licence. They are relatively straightforward processes with a full product range and proven ability to construct plants with adequate economies of scale. Although alternatives were available, continued competition between Spheripol and Unipol was important and should be safeguarded. Other technologies were either more appropriate for speciality end uses, more complex processes with a less advantageous cost/performance ratio, not fully proven on the market place, or not fully available for licence.
(70) The concern was expressed that, as a result of the concentration, two different companies of Shell would be involved in two major packages and that the risk of restriction of the available technologies could not therefore be discarded. This restriction would be all the more significant, because Himont already controlled to a very large extent catalyst developments on the basis of its patents. Licensees would depend to a large extent on a single company for their technology and catalyst supply. Moreover, the joint venture would gain an additional competitive advantage through access to technology information and feedback from the much larger licensing pool of both leading technologies.
(71) The combination of the technological strength of Shell and Himont and the established position of their technologies on the market would place other licensors at a significant competitive disadvantage. Inter alia a newcomer would have to overcome the following obstacles: (i) lack of history in the market related to established reputations; (ii) development of adequate infrastructure (R& D, engineering support); (iii) development of catalyst production points with back-up supply capability. Moreover, the licensees' familiarity with Spheripol and Unipol combined with the provisions of existing agreements that give licensees the option to increase capacity in the same or new plants may also act a disincentive for them to switch to alternative technology providers.
Competition from other advanced technology providers
(72) Apart from Spheripol and Unipol, the notifying parties identified the following providers of advanced PP technology packages today: Mitsui, BASF, Amoco/Chisso and Sumitomo. The Commission considers that the mere existence of alternative technologies does not constitute adequate grounds for concluding that no dominance will be created on the technology market as a result of the concentration. Dominance is the ability to behave to a significant extent independently of one's competitors and customers. It is the view of the Commission based on its investigations in this case that for the reasons explained below, these alternative technology providers are not likely to form a significant constraint on the exercise of market power created by the concentration in the short to medium term.
(73) One of these technology providers accounting for about [. . .] (8) of licensed capacity, namely Mitsui, cannot, in the Commission's opinion, be regarded as a fully independent competitor likely significantly to constrain Himont's behaviour. Mitsui offers its Hypol process for licence together with catalysts jointly developed with Himont. Since 1975 Mitsui is involved in a Research and Development Cooperation Agreement with Himont concerning Hypol and Spheripol as well as related catalysts. Under the current version of this agreement [. . .], the parties cooperate on virtually all aspects of technology development and licensing [. . .].
(74) The agreement provides [. . .].
(75) This agreement is an expression of the long-standing cooperation arrangements between Himont and Mitsui and of the common economic interests and incentives that they share in the area of PP technology. This seems to be borne out by the fact that Mitsui has not secured a single licence in western Europe to date. On the basis of the above, it does not appear that Mitsui can be considered as an effective competitor likely significantly to constrain Himont's competitive behaviour.
(76) Other existing licensors include BASF, Amoco and Sumitomo. BASF currently offers a gas-phase process (vertical stirred bed reactor) for license. The older version of the BASF technology became commercially available in 1974. The product range has since been broadened, especially since the incorporation of a proprietary supported catalyst in the BASF technology package in 1991, [. . .]. BASF has not granted any licences in western Europe since 1978. Its only licensee in Europe is ICI, whose PP business BASF has recently acquired.
(77) Sumitomo has developed a bulk process as well as a more recent gas-phase process (fluid bed reactor). Its bulk process became available for licence in the early 1980s and its gas process in the mid-1980s. Sumitomo has a very limited number of licensees world-wide for both processes.
(78) Amoco began development work on a gas-phase process in the 1970s in collaboration with Chisso Corporation of Japan. The first Amoco plants using the earlier version of this technology was built in the late 1970s. The Amoco/Chisso technology which is currently offered for license is an improved version of the earlier technology based on the development of a proprietary high activity catalyst in the 1980s [. . .].
(79) Although the Commission would not question the credibility of the abovementioned alternative technology suppliers from a purely technological perspective, and leaving aside contractual and other relationships with the notifying parties, it appears that these technology suppliers are not likely to significantly constrain the market power of Spheripol and Unipol for the following reasons. First, alternative technologies have a more limited number of qualified grades than Spheripol or Unipol both on the whole and within each specific PP family. In addition, some of these technologies are better suited for the manufacture of certain PP products and their grade coverage is correspondingly much weaker in other areas. This can be explained by the licensor's prior expertise and the product requirements of the geographical areas where he is mainly active. These technologies are as a result perceived to be less flexible by prospective licensees. By comparison Spheripol and Unipol have a more balanced grade coverage.
(80) Second, it was mentioned above that today prospective licensees may require larger plants in the interest of substantial economies of scale. According to the Commission's enquiries, the capital cost of a 200 kt plant is only approximately one and a half that of a 100 kt plant. In this respect, it is important to note that some of these alternative technologies have design capacity limitations compared with Spheripol or Unipol which prevent them from satisfying the requirements of some potential licensees.
(81) Third, in view of the limited number of their licensees to date these alternative technologies lack references and a proven commercial record in the market place. In some cases presence in the market but limited success in licensing can even be seen an indication of a market preference for unipol and Spheripol. In other cases where an improved version of a technology has only recently become available, lack of market knowledge of the technology works to the advantage of established players.
(82) Fourth, it appears that at least some of these alternative technology providers do not consider PP technology licensing as a core business in the context of their total operations. As a result, these companies have not pursued in the past an aggressive licensing policy. There is no indication that the current strategy of these companies in the PP licensing sector will change in the future.
(83) Finally, the ability of alternative technology providers to compete against Spheripol and Unipol could be limited by the following factors: (i) lack of catalyst production points sufficient to satisfy future demand for licences; (ii) relatively small size of licensing infrastructure that could limit a licensor's ability to offer services required by prospective customers, including e.g. engineering services, training, start-up and technical assistance, customer support in product development.
(84) On the basis of the above it appears that other existing technology providers are not likely significantly to constrain the parties' power to behave to a significant degree independently of their competitors.
Potential entry
(85) A number of companies are currently engaged in R& D in the PP sector. The focus of this research depends on the expertise and financial or other resources of the company. In most cases, research will tend to focus on market-driven product differentation, while a company with a substantial fundamental research effort, such as Himont, may also develop new products or processes which can supersede existing technologies and create new market opportunities. A number of companies are currently working on a new generation of catalysts, metallocenes. However, this does not affect the Commission's competition assessment in this case, since the potential of metallocenes cannot be precisely determined and in any case it is not expected to be fully exploited in the short to medium term.
(86) The parties argue that there are a number of potential entrants who could, within a very short period of time enter the PP technology market. According to the parties, potential entrants can be: (i) PP producers with in-house technology who could decide to develop and license a technology package; or (ii) PE technology suppliers who could, within a short period of time, adapt their PE process and catalysts, in order to license their technology for PP resin production.
(87) The parties argue that a number of PP producers are technologically sophisticated and have substantial financial resources. According to the parties, technological sophistication facilitates new entry. It is true that a number of PP producers have their own in-house R& D. However, according to the Commission's investigations, it does not appear likely that a new PP technology package will become available on the market in the short to medium term for the following reasons.
(88) Some of the PP producers who are mentioned as potential entrants have only developed or are in the process of developing their own catalysts for use in conjunction with a technology package that they have licensed. These producers have not developed nor are in the process of developing a process with the result that their entry into the market with a new technology package is not likely in the short to medium term. A small number of PP producers are currently developing both a process and a catalyst, but research and development work has not yet been completed with the result that entry is uncertain or will at least be delayed for a considerable period of time. Patent issues will also have to be considered and until the vital question of the validity of patent claims has been resolved, entry will be further delayed or even indefinitely postponed.
(89) In the very few cases where proprietary technologies already exist but are not currently licensed, these technologies are subject to one or more of the handicaps mentioned in recitals 72 et seq. For instance, were new entry to occur, the lack of track record of the new entrant would pose the same difficulties as for existing alternative providers in competing against Spheripol and Unipol.
(90) As far as PE technology providers are concerned, although it is technically possible to adapt certain PE technology to manufacture PP, according to the Commission's investigations, entry by PE manufacturers into the PP technology market is not likely in the short to medium term for the following reasons: (i) the length of time required for development, commercialization, including grade qualification, and commercial acceptance; (ii) obstacles likely to deter potential entry, including catalyst selection, the need to develop a technology capable of competing with established licensors, the costs involved in develop a technology capable of competing with established licensors, the costs involved in development and commercialization, the difficulty of entering an established market as a new entrant and gaining market acceptance, and not least the uncertain return in relation to one's investment.
(91) It appears therefore that potential entry into the technology market that could significantly constrain market power would not be likely in the short to medium term.
Demand for new licences in western Europe
(92) In the light of the continuing growth of PP demand - which is in fact the fastest growing sector in the pastics business - and the results of the Commission's market enquiries, the Commission has concluded that there will be demand for PP technology licences in western Europe in the period running up to the year 2000. This view was contested by the parties. In particular, the parties submitted a report prepared by independent business consultants in order to demonstrate there would be negligible, if any, demand for PP technology licences up to the year 2000.
(93) The essential parameters governing the forecast contained in the report were that: (i) current (i.e. 1993) PP capacity in western Europe is [. . .] million tonnes per annum; (ii) current capacity utilization is [. . .]; (iii) demand for PP is expected to grow at [. . .] per annum, which the report indicated lay in the range of other industry commentators; (iv) de-bottlenecking (net of plant closure) could increase the existing pool of capacity to 6,5 million tonnes per annum. Using these parameters the report calculated that 'to bring the supply/demand balance to [. . .] operating levels about six new plants will be required by 2000'.
(94) Although the Commission does not think it would be necessary, having regard to the following assessment, to challenge the forecast parameters and methodology it is, however, inclined to the view that the report has a greater tendency to underestimate than overestimate the likely future demand for PP technology licences. This view is based on three considerations.
(95) First, in the light of other technical information made available to the Commission and the allowance made in the report itself, the size of future plant closures would seem to be underestimated so that the net capacity increase due to de-bottlenecking may be overstated. Secondly, it would appear that the report asumes that the current net PP exports amounting to 300 000 tonnes will completely disappear. If net exports were to remain at their current level, this would correspond to demand for an additional two PP plants. Thirdly, and more importantly, the report fails to take into consideration the very long lead time required for negotiation of a technology licence before the corresponding new PP plant comes on stream. The parties themselves have pointed out that 'based on industry practice, . . . PP technology licences are granted some four years before a new PP plant is commissioned' (point 6.9 of the parties' Response to the Commission's Statement of 28 March 1994). As a result, a forecast for demand for PP technology licences in the period up to the year 2000 would logically have to consider what would be the likely demand for PP up to the year 2004 and not 2000.
(96) Nevertheless, these points can be left aside since it is sufficient to assess the nature of the PP technology licensing demand arising from the report conclusions in more detail. The conclusion of the report is that six new plants each having a capacity of about 160 kilotonnes per annum will be required. However, the report and parties go on to consider that this will not give rise to demand for PP technology licensing, because two of the six plants will be constructed by producers already having their own technology, a further three plants will be built by producers enjoying an option under existing PP technology licensing contracts to increase capacity on broadly pre-ordained terms, and the sixth producer would be interested in a PP technology licence but the terms and conditions of his licence are likely already to have been determined.
(97) The Commission disagrees with this line of reasoning. First, even on the basis of the information submitted by the parties there is doubt as to which producers will undertake the required expansion. A second report by different industry consultants submitted by the parties and assessing which companies were most likely to build new plants considered expansion likely by two companies not mentioned in the first report. In any event, it is a matter for each market player to decide individually whether or not it will increase capacity in the expectation of acquiring a share of the expected growth in PP demand in western Europe. In this regard the continued availability of effective competition in the PP technology licensing market is a crucial factor since the large majority of western European PP producers are potential customers for technology licences.
(98) Secondly, as regards contractual options to increase production, the Commission notes that not all of the PP producers with claimed licensing technology options do in fact enjoy such an option. In any case, as explained above, the Commission considers that the mere existence of an option does not imply that the option holder is not on the market for technology licensing. An option holder is likely to compare offers from other technology providers before making his choice and thus benefits from the presence of effective competition on the technology market,
(99) In conclusion, the Commission considers that, the analysis carried out above using the material submitted by the parties, demonstrates that significant demand for PP technology licensing can be expected in the near future. In fact, according to the Commission's market enquiries, some PP producers in western Europe are already interested in new PP technology licensing.
Sophisticated buyers as countervailing power to a dominant firm
(100) The parties argue that potential customers for PP technology in western Europe are predominantly technologically sophisticated with substantial financial resources. As a result, in the event that a dominant technology provider tried to exercise market power, PP producers would have a powerful incentive to take action in order to avoid the costs of dominance. However, in the Commission's view, the ability of these producers to exercise countervailing power to a dominant technology provider should not be overestimated.
(101) The Commission considers that the development of proprietary technologies as an alternative to buying licences is at most a long-term solution for a very small number of players in view, inter alia, of the length of time and substantial investments required for successful completion of development work. In most cases research and development efforts of PP producers are normally related to catalyst improvement. These producers would still require a matched process which they are unlikely to develop in the short to medium term. More importantly, the validity of catalyst improvements under pre-existing patent rights may have to be settled and past experience demonstrates the importance of such rights. In conclusion, the Commission considers that technological sophistication could not act as a significant constraint on the exercise of market power by a dominant technology provider in the short to medium term.
Conclusion
(102) In the light of the above, the Commission concluded that the original concentration would lead to the creation of a dominant position as a result of which effective competition would be significantly impeded on the market for PP technology. Dominance on the technology market might have a restraining effect on the PP industry's future plans and opportunities for expansion. It would deprive PP manufacturers of the benefits of competition with regard to price, quality and other parameters with negative repercussions on the PP production market. However, in view of the commitments offered by the parties regarding the establishment of Montedison's separate Technipol subsidiary (see recital 116) the Commission's concerns regarding Sophia's acquisition of a dominant position on the PP technology market have been resolved.
(ii) Production and sale of PP
(103) The joint venture will be the world leader in the PP market with a global capacity of [ . . . ] million tonnes, representing approximately [ . . . ] (9) of PP world-wide capacity. It will also be the leading supplier of PP in western Europe accounting for about [ . . . ] (10) of capacity and about [ . . . ] (10) of free sales (i.e. sales excluding captive use).
(104) Subsequent to the concentration there will be more than 10 producers of PP in western Europe apart from the merged entity. However, Sophia's market share will be more than double the market share of its next competitor, Borealis (about [ . . . ] (9) of capacity and about [ . . . ] (9) of free sales). In terms of capacity, Hoechst will account for about [ . . . ] (11), PCD/OMV and Appryl for abourt [ . . . ] (11) each, BASF and ICI together for about [ . . . ] (9). Other suppliers of the western European market, each with a share [ . . . ] (11), will include Amoco, Petrofina, Exxon, Repsol, DSM, Vestolen and Solvay.
(105) As to the impact of the merged entity on the production of different types of PP, the PP businesses of Montedison and Shell are largely complementary: [ . . . ] of Shell's free market sales are in commodity homopolymers, while [ . . . ] of Montedison's sales are in speciality homopolymers and copolymers. In block copolymers, which as indicated above, could be considered to form part of a distinct product market within PP, there is some overlap between the activities of the parties. However, their combined market share in this area does not exceed their abovementioned share of the entire PP market. Therefore, the following analysis will focus on the effects of the concentration on the market for the production and sale of PP taken as a whole.
Joint venture links between PP producers
(106) In view of the increasing degree of concentration on the market for the production and sale of PP, it is appropriate to take into consideration the joint-venture links between Montedison and Shell on the one hand and other producers on the other hand. Montedison and Shell have a number of joint ventures with other polyolefin producers, three of them which relate to PP: Montefina, a joint- venture between Montedison's subsidiary, Himont and Petrofina with a capacity of about 380 kts/y, NSP (Himont/Statoil) with a capacity of about 200 kts/y and ROW (Shell/BASF) with a PP capacity of about 200 kts/y. Each of these joint ventures is based on a 50 % participation by the respective parent companies.
(107) Through their joint-venture links the parties may be able to influence the competitive behaviour of their joint-venture partners, who are important competitors on the PP production market and thus strenghten their position on that market - the total capacity of the PP producers involved in Montefina, NSP and ROW will account for [ . . . ] (12) of western European capacity ([ . . . ] (12) including BASF/ICI). [ . . . ].
(108) In any event, it appears that in the case of Montefina in particular, subsequent to the concentration Sophia would be able to exert a considerable restraining influence on Petrofina's competitive behaviour. Montefina is a 50/50 production joint venture created in 1976 to produce PP using technology licensed by Montedison. It currently has two production lines in Feluy, Belgium, whose output is shared by the parents and independently marketed by each of them. Petrofina's total PP production in western Europe comes from Montefina so that Petrofina's competitive position could be critically influenced by the behaviour of its new joint-venture partner.
(109) According to Petrofina, the Shell/Montedison transaction would be likely to cause a potential conflict of interest among the three Montefina parents. [ . . . ]. Petrofina believes that only a separation of Montefina from Sophia would remedy this non-competitive situation.
(110) [ . . . ]. Under the Montefina shareholding agreement, all important decisions must be agreed to between Himont and Montedison (or its successor in the joint venture). In the Commission's view, this enables Montedison to influence production and other important decisions in the context of the joint venture. With regard to the exchange of technological information, [ . . . ] it is the Commission's view that access by Montedison or Shell personnel at Montefina to Petrofina's technological information in the context of the joint venture remains and could act as a disincentive to the use of Fina's technology by Petrofina.
Other factors reinforcing Sophia's position on the PP production market
(111) The merged entity will combine on the one hand Himont's technological leadership and success in the development of new products and advanced polyolefin materials and on the other hand Shell's strong world wide presence as one of the largest petrochemical companies, feedstock availability and considerable financial resources. These to a large extent complementary strengths of the two partners will create a particularly powerful combination. Sophia will be able to offer the broadest product line in the industry, including all families of PP products and a very large variety of PP grades used in a wide range of applications. It will have the financial resources, strengthened by its technology position and licensing income, to focus on the development of specialized products and advanced materials. It could also use general profits to subsidize niche markets. The geographic spread and size of its existing plants are such that Sophia would enjoy particularly competitive production costs and efficient distribution in many geographic locations. In addition, it will have considerable advantages vis-à-vis its competitors because of the size of its sales and marketing organization and in particular its position with regard to technology.
(112) The merged entity will combine the substantial assets and expertise of its parent companies and will have a leading position on the PP technology market, as explained above. The ability to spread R& D costs over a large production base would place the parties at a considerable advantage in relation to other PP producers. The parties' advantageous position will be further strengthened as older PP products are replaced by new products with superior properties.
(113) Even more importantly, by controlling the two world-wide leading technologies, Sophia would be able to determine the pace of future development on the PP production market, because its licensing policy would be insufficiently controlled by other competitors. Sophia could thus for instance charge supra-competitive royalties or otherwise exercise market power. All innovation and product development could be retained for use by Sophia, since there would be no competitive pressure to license other PP producers. Sophia could thus negatively affect the conditions of competition on the PP production market.
Conclusion
(114) Although the combined market share of the parties is not itself very high, its considerable gap with the market share of the next largest competitor, combined with a number of other factors, that is the network of joint ventures, Sophia's high level of product coverage and especially Sophia's leading position in technology, will substantially reinforce the parties' position on that market. All these factors led the Commission to entertain serious doubts as to the possible creation of a dominant position on the PP production market. However, the Commission's concerns regarding Sophia's acquisition of a dominant position on the technology market have been resolved by the commitments offered by the parties regarding the establishment of Montedison's separate Technipol subsidiary (see recital 116). Moreover, the parties have also offered a commitment specifically relating to the PP production market, namely the dissolution of the Montefina joint venture. Accordingly, in view of those commitments the Commission considers that there is no longer any room for serious concerns as to the creation of a dominant position on this market.
V. MODIFICATIONS TO THE ORIGINAL CONCENTRATION PLAN (i) The undertakings entered into by the parties
(115) Following the Commission's communication pursuant to Article 18 of the Merger Regulation, and in order to remove the competition concerns expressed into the following commitments vis-à-vis the Commission:
(116) PP technology undertaking
'The notifying parties undertake the following:
Himont's existing PP technology business will remain outside Sophia by its transfer to a company, either new or existing, under the sole control of Montedison (The "Technipol Company"). Shell will have no financial investment in the Technipol Company. The Technipol Company will be established at the latest within [ . . . ] of the Commission's compatibility decision. In the intervening period, the PP technology business will be conducted and kept separate from both Shell and Sophia. This company will be a separate, full-functioning company capable of conducting PP technology business or an ongoing, viable and competitive basis enjoying its own financial resources and capable of continued independent PP technology development. It will be endowed with the following assets and charasteristics:
(i) the existing world-wide PP technology licensing business (including the irrevocable and exclusive right to licence the corresponding intellectual property rights, and the existing sales/marketing/support staff). The existing PP licensing contracts and related PP catalyst supply contracts will be transferred to the Technipol Company. To the extent that the transfer of such contract requires the consent of licensees, Montedison will use all reasonable endeavours in good faith to obtain such consent. The revenue from any transferred contracts will accrue to the Technipol Company [ . . . ]. The Technipol Company will be given sufficient resources to finance its R& D efforts. To the extent that such contracts are not transferred, Sophia will subcontract (subject to contractual constraints) in arm's length terms the performance of its obligations under those contracts to the Technipol Company;
(ii) the corresponding R& D staff and R& D facilities regarding all aspects of the PP technology business including licensing support, technological updating and further development of the PP technology (R& D relates to both PP process and catalyst technology);
(iii) the Technipol Company will own the intellectual property rights that are the fruits of its own research in PP technology, including in PP catalysts. However, this will not prevent the Technipol Company from entering into sponsored research contracts on usual industry terms. The Technipol Company will also have the exclusive right to enforce the intellectual property rights licensed to it by Sophia, and in particular to decide whether to pursue infringement proceedings against third parties (subject to legal constraints and requirements).
(iv) Sophia will dedicate exclusively to the Technipol Company such proportion of its catalyst manufacturing capacity as is required by the Technipol Company to supply the needs of its PP technology licensees. Sophia will accordingly manufacture PP catalysts on a toll manufacturing basis on terms and conditions that are customary in the industry. Sophia will not offer for sale such catalysts to any other third party. The Technipol Company and its licensees may obtain PP catalysts from third parties;
(v) the existing PP pilot plant for PP technology development and testing as well as access to a full scale PP production plant;
(vi) Sophia may purchase technological improvements to existing PP technology employed by Sophia, other technical services, catalysts or technology from the Technipol Company but only on an arm's length basis and on commercial terms equivalent to those offered to licensees; and
(vii) neither Sophia nor Shell shall have access to Technipol Company's privileged information of the type that would not be made available to a competitor, in particular regarding business and commercial secrets such as pricing, customer lists and negotiations, sales data.
References to PP technology in these untertakings shall mean Himont's PP process and catalyst technology as currently licensed and any developments in PP technology.'
(117) PP production undertaking
'Montedison undertakes the following concerning the Montefina joint venture:
(i) Withdrawal of Himont from Montefina within [. . .] of the Commission's compatibility decision. This period may be extended by the Commission if the Commission is satisfied that despite bona fide efforts by Montedison, Montedison has not been able to sell its investment in Montefina. Each request for an extension shall be duly motivated.
(ii) Montedison, on behalf of the Technipol Company, shall reaffirm Montefina's right to the benefit of the most favoured licensee clause as regards the catalyst supply and the licence agreements. [. . .]
No provision of any new licence and no other intellectual property right of Himont or of Sophia shall be construed so as to prevent or hinder Montefina or Petrofina from entering into merger or alliance discussions with a third party, provided that Montefina or Petrofina shall protect the Technipol Company's, Himont's and Sophia's legitimate intellectual property rights and business and commercial secrets.
(iii) The operations of Montefina will be kept separate from those of Sophia. During the period prior to formal withdrawal, Himont's rights in Montefina will be exercised by Montedison. No person on the Sophia payroll or agent of Sophia shall be present on the Feluy site except with Montefina's prior consent.
During the withdrawal period as well as thereafter, knowledge of the business and commercial secrets of Petrofina and Montedison acquired through the common operation of Montefina shall remain secret and in no circumstances be communicated to Sophia or any other party except any bona fide potential purchaser of Montedison's interest in Montefina and its advisers. In particular, no data files, business records or other confidential documents relating to Montefina shall be transferred to Sophia.
(iv) During the transitional period, Montedison shall undertake every effort consistent with the past functioning of the plant to ensure the smooth, efficient and commercial operation of Montefina, compatible with the reasonable interest of both parties and provided bona fide efforts are made by Petrofina to such effect.
(v) A detailed report shall be provided by Montedison at three monthly intervals on the state of progress of sale negotiations and the withdrawal implementation.'
(118) Review of PP technology remedy
'The parties reserve their rights under Community law to request the Commission to review the whole or any specific undertakings relating to PP technology set out above, [. . .].'
(119) Implementation of undertakings
'These undertakings will take effect from the date of the Commission's decision under Article 8 (2) of Regulation (EEC) No 4064/89.'
(ii) Assessment of the undertakings
(120) These undertakings have been taken into account by the Commission in its assessment of the effects of the proposed concentration. As explained above, were the operation to be implemented as notified, both leading PP technologies, Unipol and Spheripol would fall within the decisive influence of a single decision centre, namely Shell. However, the implementation of the parties' commitment relating to PP technology will change this anti-competitive situation. Montedison's world-wide PP technology business will be transferred to a separate company, Technipol, which will be structurally and financially independent of Sophia and Shell. Technipol will be endowed with all the necessary assets and characteristics enabling it to operate as an on-going, viable and competitive business. Montedison's PP process and catalyst technology, whether already developed or in the process of development, will be transferred to Technipol. Technipol will be responsible for the licensing, updating and further development of such technology. Any relationship between Technipol and Sophia will be on an arm's length basis and on terms equivalent to those offered to third parties. In particular, Technipol will be expected to undertake its own research efforts in the area of PP process and catalyst technology thus securing its future as an active licensor.
(121) As described above, the Commision considers that the PP technology commitment offered by the parties will have the result that the business of one of the two leading PP technologies will fall outside the field of influence of Shell and will be able to remain an independent and viable competitor on the market. In order to ensure effective implementation of this commitment, the Commission considers it essential to be kept informed by the parties of progress made in this respect on the basis of quarterly reports prior to the establishment of Technipol and annual reports for the succeeding three years. The nature of these reports is described below.
The first quarterly report on the implementation of the PP technology commitment shall be submitted within four months of the date of this Decision. The report shall describe inter alia the detailed steps taken to establish the Technipol company, the expected financial resources of the company, its envisaged tangible and intangible assets and the likely staff resources divided into R& D, scientific and other staff. Letters or documentation sent to existing licensees describing the establishment of Technipol and correspondence relating to the endeavours taken to encourage licensees to transfer existing licence contracts to Technipol shall be appended to the report.
The second quarterly report shall be submitted after the establishment of Technipol and within seven months of the date of this Decision. This report shall take the same form as the first quarterly report except it shall relate to definitive financial resources, assets and staff, etc. In particular, details shall be provided of licence contracts transferred, not transferred (stating the reason therefor) and those pending. The expected financial income accruing to these contracts shall be identified. The financial remuneration provided to Sophia for transferred contracts shall be specified. A copy of the company's opening balance sheet and business plan shall be appended.
For the next three years, an annual report on Technipol shall be submitted within three months of the end of each financial year. These reports shall include:
- a copy of the annual accounts including balance sheets and profit and loss account for the year in question,
- separate identification of licensing revenue for contracts transferred and new contracts gained since establishment,
- details of other income including research sponsored by third parties,
- R& D expenditure and facilities,
- intellectual property rights,
- employee numbers subdivided into R& D, scientific and other staff,
- catalyst sales in volume and value terms,
- a summary of the company's commercial and scientific activities during the year.
Finally, the Commission has taken note of the parties' statement regarding the review of the technology remedy (point 3 of the parties' commitment) and confirms its willingness to undertake such review in accordance with Community competition law.
(122) The parties' PP technology commitment also has considerable relevance for the assessment of Sophia's position on the PP production market, where the Commission identified potential competition problems arising from Sophia's size, joint-venture links and especially its dominance on the PP technology market. The PP technology remedy along with the parties' commitment regarding Montefina, which will enable Montefina effectively to compete with Sophia, will have the result that the Commission's concerns in relation to the PP production market will also be resolved.
VI. FINAL CONCLUSION (123) For the reasons outlined above, the Commission considers that the proposed concentration, as subsequently amended by the inclusion of the commitments offered by the parties, would not lead to the creation or reinforcement of a dominant position on the markets for PP technology and PP production and sale, as a result of which effective competition would be significantly impeded in the common market within the meaning of Article 2 (3) of the Merger Regulation. The concentration can therefore be declared compatible with the common market subject to full compliance with conditions and obligations within the meaning of Article 8 (2) of the Merger Regulation.
(124) This Decision is without prejudice to the application of the general Community competition rules to pre-existing joint ventures and pre-existing contractual arrangements between the parties to the proposed concentration and third parties, in particular with respect to the implementation of the parties' commitments relating to the future of the Montefina joint venture,
HAS ADOPTED THIS DECISION:
Article 1
Subject to the conditions and obligations contained in the parties' commitments vis-à-vis the Commission set out in recital 116 of this Decision, the notified concentration between Shell and Montedison is declared compatible with the common market.
Article 2
The parties are required to keep the Commission informed of the implementation of the commitments set out in recital 116 of this Decision on the basis of the quarterly and annual reports described in recital 121 of this Decision.
Article 3
This Decision is addressed to:
Shell Petroleum NV,
30 Carel van Bylandtlaan,
NL - The Hague,
and
Montedison Nederland NV,
c/o Montecatini SpA,
Foro Buonaparte 31,
I-20121 Milano.
Done at Brussels, 8 June 1994. | [
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Commission Regulation (EC) No 2541/2001
of 21 December 2001
amending Regulation (EC) No 2125/95 opening and providing for the administration of tariff quotas for preserved mushrooms, and repealing Regulation (EC) No 1921/95 laying down detailed rules for the application of the system of import licences for products processed from 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 2201/96 of 28 October 1996 on the common organisation of the markets in processed fruit and vegetable products(1), as last amended by Regulation (EC) No 1239/2001(2), and in particular Article 11(2) and Article 15(1) thereof,
Whereas:
(1) Commission Regulation (EC) No 1921/95(3), as last amended by Regulation (EC) No 308/2001(4), laid down detailed rules for the application of the system of import licences for products processed from fruit and vegetables and set out a list of products covered by that system. The aim of the system is to allow the Commission to ensure continuous monitoring of imports of the products in question in order to facilitate the adoption of appropriate measures in the event of disturbance or threatened disturbance of the Community market. This objective may be attained in a way that is less restrictive for importers by carrying out surveillance in accordance with Article 308d 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(5), as last amended by Regulation (EC) No 993/2001(6). Regulation (EC) No 1921/95 should therefore be repealed.
(2) Commission Regulation (EC) No 2125/95 of 6 September 1995 opening and providing for the administration of tariff quotas for preserved mushrooms(7), as last amended by Regulation (EC) No 2858/2000(8), refers to a number of provisions of Regulation (EC) No 1921/95. Such reference should therefore, subject to specific provisions to be specified, be replaced by reference to Commission Regulation (EC) No 1291/2000 of 9 June 2000 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products(9), as amended by Regulation (EC) No 2299/2001(10).
(3) 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
Regulation (EC) No 2125/95 is hereby amended as follows:
1. Article 3 is replaced by the following:
"Article 3
1. Commission Regulation (EC) No 1291/2000(11) shall apply to the system introduced by this Regulation, subject to the special provisions thereof.
2. Import licences shall be valid for a period of nine months from the effective date of issue within the meaning of Article 23(2) of Regulation (EC) No 1291/2000, but shall not be valid after 31 December of the year concerned.
3. The amount of the security referred to in Article 15(2) of Regulation (EC) No 1291/2000 shall be EUR 24 per tonne net.
4. The country of origin shall be entered in box 8 of both the licence application and the import licence and the word 'yes' shall be marked with a cross. The import licence shall be valid only for imports originating in the country indicated."
2. Article 4(4) is replaced by the following:
"4. Notwithstanding Article 9 of Regulation (EC) No 1291/2000, the rights arising from import certificates shall not be transferable."
3. Article 6(1) is replaced by the following:
"1. Member States shall notify the Commission of the quantities for which import licence applications have been submitted, as follows:
- each Wednesday in the case of applications made on Monday and Tuesday,
- each Friday in the case of applications made on Wednesday and Thursday,
- each Monday in the case of applications made on Friday of the previous week.
These notifications shall be broken down by product, according to the combined nomenclature, and giving separate figures for the quantities applied for pursuant to Article 4(1)(a) and (b) respectively."
4. Article 9 is replaced by:
"Article 9
1. Article 35(6) of Regulation (EC) No 1291/2000 shall apply.
2. In the case of quantities imported within the tolerance referred to in Article 8(4) of Regulation (EC) No 1291/2000 the import duty provided for in the Common Customs Tariff (CCT) shall be levied in full."
Article 2
1. Regulation (EC) No 1921/95 is hereby repealed.
2. At the request of parties concerned, import licences issued under Regulation (EC) No 1921/95 shall be cancelled in respect of quantities unused on the date of entry into force of this Regulation. In such cases the security shall be released.
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, 21 December 2001. | [
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COMMISSION REGULATION (EC) No 292/2006
of 17 February 2006
opening an invitation to tender for the allocation of A3 export licences for fruit and vegetables (tomatoes, oranges, lemons and apples)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (1), and in particular the third subparagraph of Article 35(3) thereof,
Whereas:
(1)
Commission Regulation (EC) No 1961/2001 (2) lays down the detailed rules of application for export refunds on fruit and vegetables.
(2)
Article 35(1) of Regulation (EC) No 2200/96 provides that, to the extent necessary for economically significant exports, the products exported by the Community may be covered by export refunds, within the limits resulting from agreements concluded in accordance with Article 300 of the Treaty.
(3)
Pursuant to Article 35(2) of Regulation (EC) No 2200/96, care must be taken to ensure that the trade flows previously brought about by the refund scheme are not disrupted. For this reason and because exports of fruit and vegetables are seasonal in nature, the quantities scheduled for each product should be fixed, based on the agricultural product nomenclature for export refunds established by Commission Regulation (EEC) No 3846/87 (3). These quantities must be allocated taking account of the perishability of the products concerned.
(4)
Article 35(4) of Regulation (EC) No 2200/96 provides that refunds must be fixed in the light of the existing situation and outlook for fruit and vegetable prices on the Community market and supplies available, on the one hand, and, on the other hand, prices on the international market. Account must also be taken of the transport and marketing costs and of the economic aspect of the exports planned.
(5)
In accordance with Article 35(5) of Regulation (EC) No 2200/96, prices on the Community market are to be established in the light of the most favourable prices from the export standpoint.
(6)
The international trade situation or the special requirements of certain markets may call for the refund on a given product to vary according to its destination.
(7)
Tomatoes, oranges, lemons and apples of classes Extra, I and II of the common quality standards can currently be exported in economically significant quantities.
(8)
In order to ensure the best use of available resources and in view of the structure of Community exports, it is appropriate to proceed by an open invitation to tender and to set the indicative refund amount and the scheduled quantities for the period concerned.
(9)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fresh Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
1. An invitation to tender for the allocation of A3 export licences is hereby opened. The products concerned, the tender submission period, the indicative refund rates and the scheduled quantities are laid down in the Annex hereto.
2. The licences issued in respect of food aid as referred to in Article 16 of Commission Regulation (EC) No 1291/2000 (4) shall not count against the eligible quantities in the Annex hereto.
3. Notwithstanding Article 5(6) of Regulation (EC) No 1961/2001, the term of validity of the A3 licences shall be two months.
Article 2
This Regulation shall enter into force on 1 March 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 February 2006. | [
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COUNCIL DECISION
of 20 December 2007
on the conclusion of an Agreement in the form of an Exchange of Letters between the European Community and New Zealand pursuant to Article XXVIII of the GATT 1994 relating to the modification of the WTO tariff quota for New Zealand butter provided for in EC Schedule CXL annexed to the GATT 1994
(2007/867/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof, in conjunction with the first sentence of the first subparagraph of Article 300(2) thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
On 14 May 2007, the Council authorised the Commission to open negotiations under Article XXVIII of the GATT 1994 with a view to modifying the WTO tariff quota for New Zealand butter. Accordingly, the European Community notified the WTO on 3 August 2007 of its intention to modify the WTO tariff quota for New Zealand butter in EC Schedule CXL.
(2)
Negotiations have been conducted by the Commission in consultation with the Committee established by Article 133 of the Treaty and within the framework of the negotiating directives issued by the Council.
(3)
The Commission has successfully negotiated an agreement with New Zealand. The Agreement in the form of an Exchange of Letters between the European Community and New Zealand should therefore be approved,
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement in the form of an Exchange of Letters between the European Community and New Zealand pursuant to Article XXVIII of the GATT 1994 relating to the modification of the WTO tariff quota for New Zealand butter provided for in EC Schedule CXL annexed to the GATT 1994 is hereby approved on behalf of the Community.
The text of the Agreement is attached to this Decision.
Article 2
The President of the Council is hereby authorised to designate the person(s) empowered to sign the Agreement in order to bind the Community.
Article 3
This Decision shall be published in the Official Journal of the European Union.
Done at Brussels, 20 December 2007. | [
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COMMISSION DECISION
of 8 July 2009
on the groepsrentebox scheme which the Netherlands is planning to implement (C 4/07 (ex N 465/06))
(notified under document C(2009) 4511)
(Only the Dutch text is authentic)
(Text with EEA relevance)
(2009/809/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 those provisions (1) and having regard to their comments,
Whereas:
I. PROCEDURE
(1)
By letter dated 13 July 2006, the Dutch authorities notified the groepsrentebox‘group interest box’ scheme, which provides for lower taxation and deductability of interest received or paid in the context of intra-group relations. The notification was made by the Dutch authorities only for the sake of legal certainty since they consider the scheme to be a general measure. Further information was provided by letters dated 5 September 2006 and 9 November 2006.
(2)
By letter dated 7 February 2007, the Commission informed the Netherlands that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the part of the aid scheme related to lower taxation and deductibility of intra-group interest (measure A).
(3)
In the same letter, the Commission also informed the Netherlands that it considered that the lower taxation on short-term deposits aimed at acquiring at least 5 % of a company (measure B) did not constitute State aid within the meaning of Article 87(1) of the EC Treaty.
(4)
The Commission’s decision to initiate the procedure was published in the Official Journal of the European Union (2). The Commission called on interested parties to submit their comments.
(5)
The Dutch authorities provided their comments on the opening decision by letter dated 7 May 2007.
(6)
The Commission received comments from interested parties. It forwarded them to the Dutch authorities, who were given the opportunity to react; their comments were received by letter dated 29 June 2007.
(7)
Additional information was received from the Dutch authorities by letters dated 8 November 2007 and 29 January 2008.
(8)
On 7 October 2008, the Dutch authorities provided a legal opinion from Ms Leigh Hancher, professor of European Law at the University of Tilburg, on the question whether the notified measure involved State aid.
(9)
By letter dated 18 December 2008, the Dutch authorities informed the Commission that they had decided to amend the tax scheme.
II. DETAILED DESCRIPTION OF THE MEASURE
II.1. Purpose
(10)
According to the Dutch authorities, the measure aims at reducing the difference in tax treatment between two instruments of intra-group financing, i.e. equity and debt.
(11)
In the current situation, when a company which is part of a group injects capital into another company which is part of the same group, it receives as remuneration dividends which are tax exempted by virtue of rules exempting shareholdings, whereas, when it lends money to a company which is part of the same group, the interest received is taxed at the standard corporate tax rate (25,5 %). At the level of the company which receives the funds, dividends paid on a capital injection are not deductible, whereas interest paid on a loan is deductible at the standard corporate tax rate.
(12)
The Netherlands points out that the choice of an organisational structure of legally independent organisations is usually prompted by company-law or economic reasons. The differences in civil law between equity and debt (liability, terms of repayment, security, voting rights, etc.) are largely irrelevant to group financing, whereas the tax consequences are significantly different. Within groups, financing conditions are chosen to achieve the lowest tax burden under the applicable tax system. As a result, the decision to provide loan capital or equity capital within groups is guided primarily by tax considerations.
(13)
In the legal opinion, Prof. Hancher underlines that the impact of the difference in the tax treatment of debt and equity at the corporate level, and the possible solutions to the adverse consequences this may have, are high on the policy agenda in many OECD countries. According to Prof. Hancher, calls for a fundamental reform of the Dutch corporation tax and for a neutral treatment of debt and equity financing within groups of companies have been repeatedly made in the Dutch tax literature.
(14)
The Dutch authorities emphasise that the differences in terms of tax treatment create forms of arbitrage between these two means of intra-group financing which are not economically desirable. Within a group the choice between additional equity financing or (additional) debt financing is arbitrary, but the tax consequences of the two types of financing are different. This can lead to arbitrage which distorts the neutrality of the tax system. The measure therefore seeks to prevent arbitrage between debt and equity financing and to increase the neutrality of the Dutch tax system.
(15)
The introduction of the group interest box will help to ensure that the financing method used in a group context is determined primarily by economic considerations. It brings the tax treatment of intra-group interest much more closely into line with the tax treatment of intra-group dividends, and therefore makes for greater neutrality between intra-group debt and intra-group equity financing.
(16)
The arbitrage problem does not arise in the case of financing outside a group context. Here the different consequences arising in civil law are indeed important, so that this form of arbitrage does not occur. Given the inherent differences between the situations within groups and outside groups, tax neutrality for financing transactions outside groups is not a requirement. In the nature of things, therefore, the measure is limited to group loans.
(17)
The Dutch authorities also point out that in recent times Dutch enterprises have been deducting more and more inordinate amounts of interest. The different tax treatment of group loans and equity is more and more being exploited by enterprises at the expense of the Treasury.
(18)
The measure is designed to counter this erosion of tax revenues by encouraging companies to use equity instead of loans, and to limit the deduction of interest in the Netherlands. The scheme is thus complementary to the Dutch thin capitalisation rules that have a similar objective, in that it discourages excessive financing with loan capital and prevents artificial reduction of the tax base in the Netherlands.
(19)
In the Dutch authorities’ opinion, the notified scheme constitutes a measure of a purely technical nature.
II.2. Legal basis
(20)
The legal basis of the measure is Article 12c of the 1969 Corporation Tax Act (Wet op de vennootschapsbelasting 1969). This provision was introduced with effect from 1 January 2007, but its entry into force has been postponed until the Commission has taken a position on compatibility with the State aid rules.
II.3. How the measure will work
(21)
In the Netherlands, corporation tax generally applies to company revenues at a rate of 25,5 % (3). The group interest box measure provides for different tax treatment for certain intra-group interest. Interest paid and received in the context of intra-group financing will not be subject to the standard corporate tax rate of 25,5 %. The positive balance between interest received and paid in the context of intra-group financing transactions will be taxed in a ‘group interest box’ at the rate of 5 %, instead of the 25,5 % standard corporate tax rate. If the balance of interest received and paid is negative it will be deductible, but at the reduced rate of 5 %, instead of the 25,5 % standard rate.
(22)
The amount that can be taxed or deducted at the reduced rate is limited to a percentage of the taxpayer’s net assets for tax purposes (fiscale vermogen). This limitation aims to prevent undercapitalised undertakings from abusing the measure and ensures that the reduced rate applies only where the yield on group loans has been financed with equity capital.
(23)
The interest box measure has several other anti-misuse provisions. In particular, interest formally due to a third party (a bank), but actually paid to a group organisation, is deemed to be intra-group interest paid. This applies, for example, in the case of a back-to-back construction (4). Interest that is due to a third party (a bank) is also deemed to be intra-group interest with limited deductibility, if the resources obtained by means of the loan are injected into the capital of used in a subsidiary so as to generate low-tax intra-group interest in the subsidiary.
(24)
In their initial notification, the Dutch authorities indicated that the scheme would be optional for a period of minimum three years. If chosen by one company belonging to a group, the scheme would apply to all the other companies of the group located in the Netherlands. Eligible companies, as defined in the initial interest box scheme, are those that belong to the one group, as specifically defined in the scheme itself, which requires one company to hold more than 50 % in another company. In other words, a group must be composed of at least two companies, the parent company controlling more than 50 % of the shares of the subsidiary. Each company must be subject to corporate tax in the Netherlands. This means that the scheme applies to any company established in the Netherlands or any company established outside the Netherlands with a permanent establishment in the Netherlands.
II.4. Amendments to the scheme
(25)
In the course of the proceedings, the Dutch authorities made it clear that they intended to make the scheme compulsory. This was confirmed by letter dated 18 December 2008. The group interest box would now apply to all entities subject to corporation tax in the Netherlands with respect to interest paid to group companies and interest received from group companies.
(26)
In that letter, the Dutch authorities also informed the Commission of two additional amendments to the scheme. The first amendment concerns a broader definition of a group for the purpose of the interest box scheme. The definition of related entities is amended to cover all arrangements whereby one entity has, directly or indirectly, effective control over the financing of the other entity, or whereby a third individual or entity has effective control over the financing of the two entities involved in the loan arrangement (5). The second amendment inserts a provision which would make it easier to step up a (second) company under Dutch civil law, so that the resulting group could benefit from the group interest box scheme. In particular, the current statutory minimum capital of EUR 18 000 for a limited liability company (besloten vennootschap - BV) would be abolished.
II.5. Budget
(27)
According to the initial notification, the annual budget of the notified measure was to amount to EUR 475 million. At a later stage, the Dutch authorities indicated that the compulsory interest box would be neutral from a budgetary point of view.
III. GROUNDS FOR INITIATING THE PROCEDURE
(28)
In its opening decision of 7 February 2007, the Commission expressed its doubts regarding the general nature of the measure. It stressed that only companies that were part of a group would take advantage of the lower taxation provided for by the scheme (de jure selectivity), and suspected that the scheme would benefit multinational groups, giving those groups a selective economic advantage (de facto selectivity).
(29)
The Commission indicated that in a purely national context, the measure would be likely to be neutral from a tax point of view. In the context of cross-border transactions, however, a Dutch company lending money to an affiliate established abroad would be subject to lower taxation at the rate of 5 %, while the affiliate abroad would not be subject to the Dutch rules limiting the deductibility of interest paid. The scheme would provide a de facto selective advantage, as only multinational groups of companies engaging in cross-border intra-group interest transactions in tax jurisdictions with a corporation tax rate superior to 5 % would have an incentive to use the scheme.
(30)
In so far as the measure was meant to constitute an exception to the application of the tax system, the Commission also doubted whether it was justified by the nature or general scheme of the tax system.
(31)
The Commission also considered that it could not be ruled out that the main beneficiaries of the scheme might be the former beneficiaries of the international financing activities scheme, which had been held to constitute incompatible State aid (6).
(32)
The Commission therefore took the view that the interest box scheme could be regarded as constituting aid in the sense of Article 87(1) of the EC Treaty, and that none of the exemptions laid down in Article 87(2) and (3) applied.
IV. COMMENTS FROM THE NETHERLANDS
(33)
The comments from the Netherlands on the opening decision were received on 7 May 2007 and were supplemented by additional notes in 2007 and 2008, including a legal opinion delivered by Prof. Hancher.
(34)
The Dutch authorities submit that the approach taken by the Commission in its decision is incorrect on three points. Firstly, the Commission merges the separate ‘advantage’ and ‘selectivity’ criteria into one criterion, i.e. ‘selective advantage’. This is not consistent with normal Commission practice or with the case-law, which prescribe that the two must be applied separately.
(35)
Secondly, the Commission fails to assess the components of the group interest box separately. The possible aid component in a reduced rate for intra-group interest received and the possible aid component in a reduced rate for intra-group interest paid must be assessed separately.
(36)
Thirdly, the Commission is wrong when it looks at the net effect on the payer and recipient together, and concludes that the net effect is probably neutral for national groups when both the payer and the recipient are established in the Netherlands, while a net advantage arises for multinational groups when the payer is a foreign group company and the recipient is a domestic one. According to the Dutch authorities an equation of this nature has no foundation in Dutch tax law. Dutch companies belonging to a group are consolidated for tax purposes only in the case of share ownership of 95 % or more.
(37)
Furthermore, the Dutch authorities are of the opinion that the group interest box cannot be regarded as a deviation from the standard method of taxation. It is an adjustment in which an analytical element is added to the tax system. This results in a new standard taxation method and, consequently, no advantage is conferred.
(38)
The Dutch authorities deny that there is any advantage for another reason too. The net variation caused by the group interest box to multinational groups by comparison with national groups can be to the advantage of the multinationals, but also to their disadvantage. A multinational with a Dutch affiliate may incur an advantage or a disadvantage depending on its objective position as debtor or creditor and the tax rates applicable in other Member States and in the Netherlands.
(39)
Alternatively, if there is indeed an advantage, the Netherlands is of the opinion that the possible net advantage to multinational groups is the result not of a lower Dutch rate for intra-group interest received, but of unlimited deduction for intra-group interest paid abroad. This advantage is not imputable to the Dutch State and is not financed with Dutch State resources.
(40)
A possibly more advantageous net effect for multinational groups in comparison with national groups is not the consequence of the selective scope of the Dutch group interest box, but of a disparity resulting from different rules on the deductibility of group interest within the EU. The Netherlands is free to increase or decrease this difference by amending its tax system, as long as the amendments are generally applicable to all Dutch taxpayers who in the light of the objective pursued by the amendment in question are in a comparable legal and factual situation.
(41)
According to the Dutch authorities, the overall effect of tax amendments on multinational groups engaging in cross-border transactions will always be different from the effect on domestic groups conducting only domestic transactions. For purposes of State aid, this is of relevance only if the differences are caused by the measure of the Member State itself, e.g. where there is a lower tax rate only for foreign group interest income. It is not relevant in the case of a general measure applicable to all group interest income, domestic and foreign, which leads to cross-border differences.
(42)
The mere co-existence of non-harmonised tax systems can result in a situation where the net tax implications of cross-border transactions differ from the net effect of purely domestic transactions. This effect can be both disadvantageous (economic double taxation) and advantageous (economic non-taxation).
(43)
In the EC Treaty, Articles 94 and 95 offer a basis for directives or regulations aligning the existing arrangements if that is necessary for the establishment or the proper operation of the common market. Furthermore, Article 96 offers the Commission the opportunity to take action if a difference between the legislation in force in different Member States seriously distorts competition conditions in the common market.
(44)
In the further second alternative, the Dutch authorities are of the opinion that there is no selectivity. By assessing selectivity via a comparison of the foreign debtor and domestic creditor combination with the domestic debtor and domestic creditor combination, the Commission is choosing an incorrect reference framework. When assessing the selectivity of Dutch tax arrangements, the reference framework cannot extend beyond all Dutch taxpayers. In settled Commission practice, the reference framework cannot include companies that are not subject to tax in the Netherlands.
(45)
The Dutch authorities stress that the tax scheme is not restricted to certain undertakings, or certain activities or functions, or particular regions. In the scheme there is no distinction between resident and non-resident groups of companies. For qualification for the interest box, no eligibility thresholds linked to particular activities or functions apply.
(46)
In addition, in the light of the objective of the group interest box, only undertakings that form part of a group are in a comparable legal and factual situation. Only these undertakings would have the arbitrage problem described in section II.1.
(47)
The Netherlands points out that, within groups, financing decisions are designed to minimise the tax burden under the applicable tax system. The commercial distinction between equity and debt financing (terms of repayment, liability, security), as opposed to the tax distinction is largely irrelevant. Outside groups, the commercial differences between equity and debt financing are very relevant indeed, and may well overrule tax-driven motives.
(48)
The Dutch authorities insist that measures limited to groups are tax measures of a purely technical nature not constituting State aid: in a decision on a French taxation provision, they say, the Commission accepted that a measure which set aside the general rule that interest payments were deductible expenditure in inter-company loans was a general measure, but considered a further exception to that rule in favour of central corporate treasuries set up in France by multinational companies to be a selective advantage (7).
(49)
The Dutch authorities contend that broadening the scope for the group interest box would actually lead to selectivity. If interest received from third parties were also to be taxed at a reduced rate, this would result in an advantage to financial institutions.
(50)
It is also submitted that the assumption that specific tax rules for interest by themselves involve selectivity is incorrect. Financing within a group of organisations cannot be characterised as an economic activity, but simply an economic reality. Interest flows as such are not a separate economic activity or a line of business; they serve only to fund an economic activity or a line of business. Debt financing is a distinct activity in itself only in the case of financial institutions whose business consists of financing third parties. In addition, with respect to interest earned on short-term deposits aimed at acquiring at least 5 % of the shares of a company (measure B), the Commission itself considered in the opening decision that a lower tax rate for such interest did not by itself cause selectivity, since it was considered to be a general measure.
(51)
Furthermore, the Dutch authorities argue that there is no conceptual difference between dividends and interest. Both constitute compensation for using or granting funds, either equity or debt. In both situations, these funds are used by the recipient to finance business activities. Every tax system contain rules under which dividends and interest paid are deductible, or partly deductible, or not deductible, and rules under which dividends and interest are taxable, partly taxable or exempt. There is no international tax standard which determines how these components should be treated for tax purposes.
(52)
In the further alternative, limited taxation prevents an internal disparity within the Dutch system and, as such, is justified by the nature and purpose of the system. Limited taxation of interest received within a group is justified by the limited deduction of interest payments within the group. This allows undertakings organised as a group to avoid suffering the disadvantage of limited deduction and full taxation, while undertakings organised as a single entity have no internal interest payments, and therefore do not suffer any such disadvantage.
(53)
A fundamental principle of Dutch tax law is that income and expenses are treated symmetrically. Under the internal logic of the Dutch tax system, income and expenses are two sides of the same coin. To avoid double taxation, limited taxation is the logical consequence of limited deduction.
(54)
The proposed measure aims at ensuring the application of the neutrality principle in the Dutch tax system by eliminating arbitrage between debt and equity financing within groups. The measure reduces the difference between two types of intra-group financing, thereby enhancing the neutrality of the tax system. The limitation to group interest is therefore based on an economic rationale and is necessary and functional for the effectiveness of the tax system.
(55)
The Dutch authorities point out that the circle of undertakings that will utilise the group interest box will be much broader than the 87 undertakings that utilised the former international financing activities scheme. They further argue that the limiting conditions of that scheme, such as the two-continents or four-country requirement, are all absent from the group interest box. The interest box is a purely tax measure, which regulates tax pressure on capital as a factor of production. In addition, it applies to any incoming or outgoing group loan, and is completely separate from the business carried on the company in question. For all these reasons, the scope of the measure is completely impossible to compare with the scope of the international financing authorities scheme.
(56)
The compulsory nature of the measure for all taxpayers paying or receiving interest from affiliate companies underlines the objective of the interest box: enhancing the neutrality of the tax system, thereby reducing arbitrage and increasing Dutch corporation tax revenues. It also eliminates the element that might cause a selective benefit as a result of the interest box.
(57)
A compulsory interest box not only rewards the retention of capital in the Netherlands but at the same time provides a disincentive - similar to thin capitalisation rules - to the inflow of debt financing into the Netherlands. The Dutch thin capitalisation rules discourage an excess of loan capital financing within groups by limiting the deductibility of intra-group interest, while the group interest box offers a reduced rate for intra-group interest received, provided that it is financed by equity capital. The group interest box strengthens the Dutch tax base by encouraging a higher ratio of equity capital to loan capital, and contributes to preventing the outflow of equity capital, and thus of the tax base, from the Netherlands.
(58)
The interest box is a purely technical measure that changes the system’s treatment of intra-group interest by increasing the tax burden on certain taxpayers and reducing the tax burden on other taxpayers, on the basis of horizontal and objective facts and circumstances. Once the possibility of opting out is removed, the interest box does not confer any economic advantage, as it merely shifts the tax burden between taxpayers on purely horizontal and objective criteria.
(59)
The Dutch authorities underline that de facto selectivity can arise only if there is a risk that, although the measure is general in nature, the effect in practice would be that it would always benefit an identifiable group. This type of selectivity might arise if the measure was optional, but not if the measure is made compulsory. Taxpayers that suffer a disadvantage in one year may enjoy an advantage in the next, and vice versa. The scheme therefore does not benefit a homogeneous category of taxpayers.
(60)
The Dutch authorities are also of the opinion that the new definition of group based on effective control is better aligned with the purpose of the scheme. If one company has effective control over the financing of another company, the latter company is no longer free to choose between financing via internal or external debt, nor is it free to choose between financing via debt or equity. The central management of the group decides how externally attracted funds - either external debt or external equity - are to be allocated within the group, either by internal debt or by internal equity. The fact that the tax consequences of the two instruments of intra-group financing are different provides an incentive to choose a particular instrument solely because of its tax implications.
(61)
Finally, the change in the law on limited liability companies will make it easy in future for a taxpayer to reorganise its legal structure in the form of a group, as the administrative burden and the capital requirements will be abolished or drastically alleviated.
V. COMMENTS FROM INTERESTED PARTIES
(62)
Comments were received from the Dutch confederation of industry VNO-NCW (8), from Belgium and Hungary. Comments from another party were received after the deadline and therefore could not be taken into account in the proceedings. The comments received from the third party in question would not in any event have affected the assessment and conclusions in this Decision.
V.1. Comments from the Dutch Confederation of Industry
(63)
The VNO-NCW considers that the scheme at issue cannot be an incompatible State aid in the meaning of Article 87(1) of the EC Treaty for the following reasons.
(64)
Firstly, the VNO-NCW considers the group interest box to be a general, tax-neutral and technical measure, because the objective of the scheme is to reduce tax arbitrage between equity financing and debt financing within a group of companies. Given the neutrality of the measure, the scheme does not result in favourable treatment of certain companies or production of certain goods within the meaning of Article 87(1) of the EC Treaty.
(65)
Secondly, the tax advantage to a multinational group of companies results from the disparities between Member States′ tax treatment of intra-group interest, and cannot be ascribed to the Netherlands. A tax advantage is created because the interest can be deducted in another Member State at a tax rate higher than the one applicable to the interest box, whereas in a domestic situation the rate that applies is the group interest box rate, but this is a direct result of the disparities between the Member States′ legal rules on the tax treatment of group interest. Should the Commission wish to abolish distortions that might result from the group interest box, the VNO-NCW suggests it use Article 94 or 96 of the EC Treaty.
(66)
Thirdly, the VNO-NCW considers that, in the light of the objective of the scheme at issue, which is to reduce tax arbitrage between equity and debt, companies belonging to a group are not in the same de jure and de facto situation as are companies not belonging to groups. The difference in tax treatment of equity and debt causes distortions particularly inside groups, since the parent company exercises some control over its subsidiaries, so that it can to a considerable extent determine their financing options, a choice often largely decided by tax considerations. In dealings with third parties the funding option is often determined largely by factors other than tax considerations. As a consequence, it cannot be said that the scheme at issue is selective within the meaning of Article 87(1) of the EC Treaty. In addition, according to the VNO-NCW, if the mere fact that a tax facility is to a greater or lesser extent confined to group companies prompts the conclusion that this is a State aid measure, Member States′ corporation tax systems will be at odds with Article 87(1) of the EC Treaty in many respects.
V.2. Comments from the Hungarian authorities
(67)
The Hungarian authorities consider that the scheme is not an aid measure, and put forward two arguments. Firstly, the fact that a scheme is confined to groups does not make it selective. In (international) taxation matters, rules for groups of companies are common practice and unavoidable. Many rules whose scope is limited to groups have been brought forward by the OECD (transfer pricing) and the Commission (e.g. the Interest and Royalty Directive). Secondly, Hungary recalls that direct taxation is a matter for Member States. Setting tax rates in relation to certain taxable events is within their domestic competence. Finally, Hungary finds it difficult to see how the Netherlands can be held responsible for the higher deduction generated by higher tax rates in other countries, in a situation where direct taxation has not been harmonised. The advantage described by the Commission is clearly a result of a disparity between tax systems.
V.3. Comments from the Belgian authorities
(68)
The Belgian authorities also support the view that the scheme is not State aid, and put forward arguments similar to those from other interested parties with regard to the absence of selectivity. Belgium underlines that it is logical that an undertaking that is not part of a group cannot by definition have intra-group financing activities. The Belgian authorities also argue that State aid rules are not applicable in situations where disparities between national tax systems exist due to the absence of harmonisation at EU level. As a consequence, the group interest scheme is a general measure not covered by the State aid rules, and in pursuing the case the Commission is using its powers improperly.
VI. REACTION FROM THE NETHERLANDS TO THIRD PARTIES′ COMMENTS
(69)
The Dutch authorities note that the comments of all three parties support its point of view. Both Hungary and Belgium emphasise that in attempting to tackle disturbances that are the consequence of disparities between tax systems that have not been harmonised the Commission is abusing its State aid powers. This reinforces the Dutch view that the group interest box does not constitute an aid measure prohibited by Article 87 of the EC Treaty.
(70)
The Netherlands underlines that it fully agrees with the analysis drawn up by VNO-NCW. It attaches particular importance to the detailed argument concerning the institutional framework, which clearly explains the various disturbances in the single market that can be caused by national measures taken by Member States and the instruments available under the EC Treaty to eliminate such disturbances where necessary.
(71)
Finally, the Dutch authorities support the confederation’s view that in order to establish whether there is selectivity, it must be ascertained whether certain undertakings or the production of certain goods are favoured over others that are de jure and de facto comparable in the light of the objective of the measure concerned. The restriction to group loans does not lead to selectivity, because the objective of the group interest box is to prevent arbitrage between financing from capital and financing from loans within groups. In financing between companies that are not connected in a group arbitrage plays no role whatsoever. The restriction to group loans is thus logical in the light of the scheme’s objective, so that the relevant frame of reference consists of all companies that are part of a group.
VII. ASSESSMENT OF THE SCHEME
(72)
In order to ascertain whether the measure at hand constitutes aid within the meaning of Article 87(1) of the EC Treaty, the Commission has to assess whether it favours certain undertakings or the production of certain goods by granting an advantage of an economic nature, whether any such advantage distorts or threatens to distort competition, whether the advantage is granted through state resources, and whether the advantage affects trade between Member States.
(73)
To be considered State aid, a measure must be specific or selective, in that it favours only certain undertakings or the production of certain goods.
(74)
The Dutch authorities argue that the measure at issue is not limited to certain sectors, certain types of companies, or certain parts of Dutch territory. There are no further restrictions regarding the turnover, the size, the number of employees, membership of a multinational group, or the nature of the operations that the beneficiaries are authorised to perform.
(75)
According to the applicable case-law, in order to determine whether a measure is selective, it is appropriate to examine whether, within the context of a particular legal system, that measure constitutes an advantage for certain undertakings in comparison with others which are in a comparable legal and factual situation (9). It may thus be that a taxation regime does not constitute State aid even though it does not correspond in all respects to the general system of corporate taxation of the Member State. The Court has also held on numerous occasions that Article 87(1) of the EC Treaty does not make a distinction according to the causes or aims of State aid measures, but defines them according to their effects (10). In particular, tax measures which do not represent an adaptation of the general system to meet particular characteristics of certain undertakings, but have been put forward as a means of improving their competitiveness, are caught by Article 87(1) of the EC Treaty (11).
(76)
The concept of State aid does not apply, however, to state support measures which differentiate between undertakings where that differentiation arises from the nature or the overall structure of the system of which they form part. As explained in the Commission’s notice on the application of the State aid rules to measures relating to direct business taxation (12) (the taxation notice), ‘some conditions may be justified by objective differences between taxpayers’.
(77)
Firstly, it should be clarified at which level (group level or undertaking level) the assessment is to be made. In the opening decision, the Commission indicated its preliminary view that this assessment should be made at group level, arguing that where the companies of a purely domestic group had opted for the group interest box, the advantage of a reduced taxation of the interest received by a Dutch financing company would be cancelled out by the lower deductibility of the interest paid by the Dutch-financed company (13).
(78)
The Dutch authorities consider that, because the measure is symmetric and would merely shift the tax burden between taxpayers, some companies will enjoy an advantage while others will suffer a disadvantage, depending on their objective position as debtor or creditor. Thus the group interest box does not involve aid.
(79)
As the Dutch authorities pointed out in their letter of 18 December 2008, where one company has effective control over the financing of another, the latter company is no longer free to make decisions about its financing, or to choose between financing by means of debt or equity. The group’s central management decides how externally attracted funds are to be allocated within the group, either by internal debt or by internal equity.
(80)
The Commission notes, however, that the measure relates to a specific operation (the financing of related companies), and not to a consolidation at group level. Any reduced tax rate will be applied individually to companies on the basis of the balance of their interest boxes. Even if financing decisions can be expected to be taken in the best interest of the group as a whole, an analysis at the level of the group has no foundation in Dutch tax law, as the Dutch authorities have pointed out. Under Dutch law, tax consolidation occurs only in the case of a share ownership of 95 % or more. In other words, Dutch corporation tax is levied on individual entities, not on groups. To that extent, the name given to the ‘group interest box’ does not properly reflect the fact that it applies to individual entities, engaged in specific financing operations. The measure does not concern a cost/revenue balance consolidated at group level.
(81)
Therefore, the Commission is of the opinion that the assessment of the scheme should be made at the level of individual companies. The scheme, as amended by the Dutch authorities, can be described as a reduced rate on a specific type of revenue (or cost) in the form of interest on a loan, when the transaction takes place between related companies (14).
(82)
Furthermore, the Commission considers that the symmetry of the measure and its neutral impact at the level of the group is not sufficient to exclude the possibility of an advantage to individual companies. Similarly, taxing the interest of one entity in the group at a lower rate cannot be justified by taxing another company - through reduced deductibility of interest - at a higher rate (15).
(83)
The Commission considers that, for the taxation of specific types of revenue, it may be important to determine whether a scheme covers broad categories of transactions in a non-discriminatory manner. Any discrimination that cannot be justified by objective differences between taxpayers may lead to a distortion of competition.
(84)
In this regard, it is worth noting that it is a typical feature of many tax systems that there are analytical elements to complement the synthetic nature of the tax system. This is particularly the case where specific types of revenue such as interest or dividends are subject to differentiated tax treatment.
(85)
This being said, it must be determined whether loan transactions between related companies may be objectively entitled to a reduced taxation rate. The Dutch authorities and the VNO-NCW have argued that it is only groups that there can be arbitrage between financing through capital injection and lending. In contrast to companies that are not part of a group (stand-alone companies), group companies are confronted with arbitrage between equity capital and loan capital within their group. Such an arbitrage is for the most part influenced by tax considerations rather than economic considerations.
(86)
The Commission is of the opinion that the measure at issue will have the effect of reducing this arbitrage (in a domestic situation), as the difference between the taxation of intra-group interests and the taxation of intra-group dividends will be reduced, thus reinforcing the technical neutrality of the tax system.
(87)
To illustrate this point, it is necessary to distinguish between three different types of situation (see figure 1 below) involving related companies and stand-alone companies (including financial institutions in their relations with independent third parties). Suppose that A-B-C is a corporate group, where A controls the financing of B and C; X is an entity that is not part of a group (‘stand-alone’ company), and Y is a credit institution, providing loans to independent parties.
Figure 1
(88)
The first situation is that of financial transactions between related companies. The parent company A provides liquidity to its subsidiaries B and C through either a loan or equity. These financial transactions will result in the payment (by B and C) of either interest or dividends.
(89)
The choice between loan and equity financing is made at the level of the parent company A in the best interest of the group of related companies as a whole. As a consequence, when the parent company A finances one of its subsidiaries (or affiliates), thee will indeed be an arbitrage between loan and equity on the basis of several criteria. While a need for liquidity in the long term or an investment will generally require a capital injection, short-term financial requirements will require only the provision of a (short-term) loan. However, tax considerations may influence these economic considerations.
(90)
By reducing the difference in the tax treatment of intra-group loan revenues (interest) and intra-group capital revenues (dividend), the measure will have the effect of narrowing the tax arbitrage between the two types of transaction in a domestic situation. The second type of transaction is that of a loan transaction between a financial institution (bank Y) and one of the companies belonging to a group (company B). Such a situation arises in principle when financial requirements cannot be satisfied by the provision of liquidity within the group. In such a situation, there is no arbitrage for Y, as a capital injection into B is not an alternative for Y, which is simply carrying on its business of granting credit to third parties. Nor is there any arbitrage between loan and equity at the level of B (or at group level).
(91)
Financial institutions (that grant loans to independent parties) may be distinguished from group companies (providing liquidity to their affiliates) for another reason also. In the case of financial institutions, revenues from such loan transactions are generated by the institutions’ regular business and may constitute a major part of their revenues. In the case of group companies, such revenues are recycled from transactions with independent market players and transformed into intra-group revenues, without generating any revenues at the level of the group. The interest paid by company B to the bank will constitute additional costs not only for company B but also for the group as a whole, while, in the first situation, the interest paid by company B (or C) to its parent will not constitute additional costs or revenues for the group.
(92)
In this respect, it is worth noting that financial institutions did not complain nor present any observations following the publication of the opening decision in the Official Journal of the European Union about the scope of the interest box scheme.
(93)
If we consider the situation from the debtor’s point of view (B vis-à-vis Y), the company may be more readily compared to a stand-alone company such as company X when it concludes a loan with bank Y.
(94)
The third situation is that of a loan transaction between a financial institution (bank Y) and a stand-alone company (X). As in the previous situation, Y is not confronted with any arbitrage, as a capital injection into B is not an alternative for Y.
(95)
Although, in some circumstances, the financial requirements of company X might be satisfied through the provision of a loan or capital injection from individual shareholders, this situation is not comparable with the first one, as the potential liquidity providers (natural persons) are not subject to corporate taxation. In addition, incorporating such transactions with private investors into the scope of the measure (by reducing the deductibility of interest paid by company X to its shareholders and by simultaneously reducing the taxation of such interest at the level of the individual shareholder) would be extremely difficult, as individual taxation does not follow the same logic as corporate taxation (16).
(96)
If, from a debtor’s perspective, company X’s financial requirements can be satisfied only by having recourse to borrowing from a financial institution, the resulting transaction with Y will be similar to the loan transaction between company B and Y.
(97)
Since stand-alone companies that are not credit or financial institutions are in principle not engaged in the regular business of granting loans to independent parties, they are not discriminated against with regard to loan transactions, as compared with related companies granting loans to affiliated companies.
(98)
Finally, the Netherlands have changed the definition of ‘group’ for the purpose of the interest box measure. The Dutch authorities argue that this change is the result of a refining of its approach to avoid tax arbitrage.
(99)
In the new proposal, entities will be related, entitling them to enter interest in the interest box, where one entity directly or indirectly has effective control over the financing of the other entity. The Commission considers this change important, since if one company has effective control over the financing of the other company, the latter is no longer free to choose between financing via internal or external debt, nor is it free to choose between financing via debt or equity. The arbitrage is carried out by the central management in the best interest of the group as a whole.
(100)
The relationship between A and B has to do with the allocation of funds within the group of related companies, whereas the relationship between Y and B (or X and Y) has to do primarily with commercial financing.
(101)
The Commission is therefore of the opinion that the notion of ‘direct or indirect effective control’ over the financing of the other entity (or effective control by a third entity) of the two entities involved in the loan transaction is relevant determination of the aid character of the measure, having regard to the aim of reducing incentives for arbitrage between financing through a capital injection and a loan, and ensuring tax neutrality in this regard.
(102)
Turning to the question whether any advantage is conferred by the measure in question, it is clear that a distinction has to be made between different situations at the level of the individual companies. First of all, any taxpayer in the Netherlands involved in a debt financing transaction with unrelated companies is treated in exactly the same manner, and taxed at the same rate (25 %). This includes companies that are part of a group. Secondly, when a company obtains a loan from a related company, it actually suffers less advantageous tax treatment than a company engaged in a loan relationship with a non-related company (deduction at only 5 %). Thirdly - and this is the only situation where there may be any tax advantage - a company providing a loan to a related company will be taxed on the ensuing interest payments at a rate lower than the rate charged on a transaction with a non-related company.
(103)
In terms of the measure’s consequences, however, the advantage conferred on a company providing a loan to a related company cannot be considered discriminatory, since a loan to a related company cannot be compared with a loan to an unrelated company. With respect to debt financing activities, related companies are not in a legal and factual situation comparable to that of unrelated companies. The reason is that related companies, unlike unrelated companies, are not engaged in a merely commercial transaction when they try to obtain loan or equity financing within the group. The parent and the subsidiary share the same interests, which is not the case in a commercial transaction with a third-party provider of finance, where each party tries to maximise its profits at the expense of the other. There is no competitive pressure from company Y on company A when providing a loan to company B, for the simple reason that company A controls any decision of company B as regards financing.
(104)
The requirement that control be exercised over another company is thus criterion that applies across the board to all companies regardless of size, sector or any other distinction. A different rate of taxation for debt financing between related companies merely reflects objective differences and does not affect tax neutrality.
(105)
While, in the design of tax rules, Member States are bound by the rules on free movement of goods, services and capital and freedom of establishment, by the prohibition of discrimination on grounds of nationality, and by State aid rules, the Commission has to acknowledge that Community law leaves the Member States considerable scope for manoeuvre in the field of taxation. As underlined at paragraph 13 of the taxation notice, State aid rules do not restrict the power of Member States to decide on the economic policy which they consider most appropriate and, in particular, to spread the tax burden as they see fit across the different factors of production.
(106)
In this context, the restriction of the existing arbitrage between intra-group debt and equity financing (as well as the prevention of any abuse of the deduction of intra-group interest) may well be a legitimate concern for Member States. In particular, the Commission observes that arbitrage between equity and debt may lead to situations where a company is forced by its parent to take an intra-group loan instead of equity, and thereby to have its leverage increased, in order to minimise its corporation tax. However, from an economic point of view, high debt leveraging or the obligation to pay interest, rather than benefiting from longer-term financing in the form of capital, may not always be desirable. In addition, the Netherlands seems to have lost tax revenues as a result of debt/equity arbitrage.
(107)
The measure is open to any company subject to corporation tax and receiving or paying interest in the context of intra-group relations, and does not include any discriminatory element such as a limitation regarding the country in which the transaction is to take place.
(108)
The fact that the scheme introduced is to be compulsory ensures that it will apply to all group companies (with intra-group loan transactions) without any possibility of opting out and without any differentiated treatment between group companies. In addition, the new definition of group companies for the purpose of the measure, based on control rather than a minimum stake), reduces potential elements of de jure selectivity by broadening the scope of the measure.
(109)
In this respect, the Commission notes that following the publication of the opening decision it did not receive any complaints or observations from representatives of Dutch employers complaining that small and medium-sized enterprises would not be able to take advantage of the measure.
(110)
In its opening decision, the Commission made a distinction between a purely national situation where all the companies belonging to a group were established in the Netherlands, and a cross-border situation where a Dutch company lent money to an affiliate established abroad. In a purely national context, the Commission said the measure would be likely to be neutral from a tax point of view. But, in cross-border transactions, the Dutch company would be subject to lower taxation at the rate of 5 %, while the affiliate company established abroad would not be subject to Dutch rules limiting the deductibility of interest paid. The Commission concluded that the scheme could provide a de facto selective advantage, as only multinational group of companies engaging in cross-border intra-group interest transactions in tax jurisdictions with a corporate tax superior to 5 % would have an incentive to use the scheme.
(111)
The Commission considers that its final assessment should not make any distinction between purely national situations and cross-border situations.
(112)
Firstly, the specific provisions of the scheme remain the same in both national and cross-border situations. The scheme does not contain any provision that differentiates between domestic and foreign revenues or costs.
(113)
Secondly, as rightly pointed out by the Dutch authorities and the interested parties, any advantage obtained in a cross-border context that beyond the advantage obtained in a national context is the result not of the lower Dutch rate for intra-group interest received, but the result of unlimited deduction for intra-group interest paid abroad.
(114)
Corporate tax rates are not harmonised in the EU, and the Netherlands are not in control of the rates applied by other countries. If undertakings manage to take advantage of the difference in tax rates, i.e. of the lack of harmonisation, the Netherlands is not responsible. As confirmed by the Court of Justice (17), undertakings are free to take advantage of differences in taxation levels in Member States.
(115)
The Commission agrees that any advantage resulting from an international context owing to a low taxation rate in the Netherlands which is not mirrored by a low rate of deduction in the Netherlands but instead corresponds to a normal deduction rate abroad, is not imputable to the Netherlands (18).
(116)
It should also be underlined that the advantage resulting from deduction at the normal rate abroad will not be financed through Dutch resources, and, in the country concerned, the deduction at the normal rate will stem only from the application of the normal tax system (and not from a specific measure departing from it).
(117)
As a consequence, the Commission considers that any advantages at the level of a multinational group that would result from a cross-border situation, as described in the opening decision, are the result of tax disparities between different tax jurisdictions and should therefore be excluded from the scope of the State aid assessment.
(118)
In general, and as for any tax measure, it cannot be ruled out that companies belonging to a group that are operating in specific sectors may benefit more from the measure because of the higher intensity of financial transactions in their sector. This is particularly true for companies in the financial sector, whose main activity is lending, and which might well increase lending to related companies as a result of the measure. However, it must be noted first that in order to avoid any abuse of the measure the Dutch measure includes a provision limiting the amount that can be taxed or deducted at a reduced rate (see section II.3). This limitation will apply in particular to companies in the financial sector, thus limiting any risk of abuse. Furthermore, the Commission’s taxation notice indicates that ‘the fact that some firms or some sectors benefit more than others from some of these tax measures does not necessarily mean that they are caught by the competition rules governing State aid’ (19).
(119)
In the opening decision, the Commission considered that it could not be ruled out that the main beneficiaries of the scheme might be the former beneficiaries of the international financing activities scheme, which had been held to constitute incompatible State aid.
(120)
It must be noted that in order to qualify for the international financing activities scheme, companies had to meet the following conditions, among others:
-
the company benefiting had to carry out financing activities for parts of the group in at least four countries or on at least two continents,
-
only financing operations that could be conducted independently of the Netherlands were eligible,
-
no more than 10 % of the total capital (debt and equity) used by the company for its financial activities could be applied, directly or indirectly, in group companies based in the Netherlands.
(121)
In view of these requirements, and the limited number of beneficiaries (87), the Commission considered the international financing activities scheme to be a selective measure.
(122)
As pointed out by the Dutch authorities, there are no such requirements in the interest box measure. In addition, the body of undertakings that will benefit from the group interest box will be much broader than the 87 undertakings that utilised the international financing activities scheme.
(123)
In this respect, it cannot be argued that large (multinational) companies will have easier access to the scheme than small and medium-sized enterprises (SMEs) and will thus benefit disproportionally from it. According to the statistics provided by the Dutch authorities, which draw an unambiguous distinction between SMEs and large enterprises, 200 000 enterprises (out of 335 000) have one or more group affiliates, and thus can receive or pay intra-group interest. 50 000 of these enterprises have one or more companies belonging to the group abroad, of which 47 000 (95 %) are SMEs. This clearly indicates that SMEs will not be discriminated against by the measure.
(124)
It has been demonstrated in paragraphs 83 to 123 that the measure does not confer an advantage in a discriminatory manner on undertakings in similar situations, and should in fact enhance tax neutrality.
(125)
It has also been found that the de facto advantage for multinational companies that may result from the existence of disparities between tax systems in a cross-border situation falls outside the scope of the State aid rules, because such disparities are not imputable to the Netherlands.
(126)
In any event, the Commission considers that the measure is genuinely open to any undertaking in the Netherlands, since there are no legal or economic obstacles to the establishment of a group.
(127)
The last amendment introduced by the Dutch authorities will make it easier to create a company in the Netherlands, by abolishing the statutory capital requirement of EUR 18 000 for a limited liability company. This will allow any company easily to create a (second) company in the Netherlands, and hence a group. As a consequence, the interest box measure will be accessible to any individual company without requiring a certain economic strength or significant capital resources. As the creation of a group will become a mere matter of organisation, without disproportionate costs, the requirement that it must be part of a corporate group will no longer constitute an obstacle for any undertaking wishing to benefit from the group interest box.
VIII. CONCLUSION
(128)
The Commission finds that the group interest box measure that the Netherlands is planning to implement does not confer a selective advantage that may be imputable to the Netherlands on companies established in the Netherlands that are part of a group or on foreign companies belonging to a group with a permanent establishment in the Netherlands, and accordingly does not constitute State aid within the meaning of Article 87(1) of the Treaty,
HAS ADOPTED THIS DECISION:
Article 1
The ‘group interest box’ which the Netherlands is planning to implement with respect to the taxation of intra-group flows of interest does not constitute aid within the meaning of Article 87(1) of the Treaty.
Implementation of the scheme is accordingly authorised.
Article 2
This Decision is addressed to the Kingdom of the Netherlands.
Done at Brussels, 8 July 2009. | [
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Directive 2000/64/EC of the European Parliament and of the Council
of 7 November 2000
amending Council Directives 85/611/EEC, 92/49/EEC, 92/96/EEC and 93/22/EEC as regards exchange of information with third countries
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular the first and third sentences of Article 47(2) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the Opinion of the Economic and Social Committee(2),
Acting in accordance with the procedure referred to in Article 251 of the Treaty(3),
Whereas:
(1) Council Directives 85/611/EEC(4), 92/49/EEC(5), 92/96/EEC(6) and 93/22/EEC(7) allow the exchange of information between competent authorities and with certain other authorities or bodies within a Member State or between Member States. The said Directives also allow the conclusion by Member States of cooperation agreements providing for the exchange of information with the competent authorities of third countries.
(2) On grounds of consistency with Directive 98/33/EC(8), this authorisation to conclude agreements on the exchange of information with third countries should be extended so as to include the exchange of information with certain other authorities or bodies in those countries provided that the information disclosed is subject to appropriate guarantees of professional secrecy.
(3) Directive 85/611/EEC, Directive 92/49/EEC, Directive 92/96/EEC and Directive 93/22/EEC should be amended accordingly,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Article 50(4) of Directive 85/611/EEC shall be replaced by the following:
"4. Member States may conclude cooperation agreements providing for exchange of information with the competent authorities of third countries or with authorities or bodies of third countries as defined in paragraphs 6 and 7 only if the information disclosed is subject to guarantees of professional secrecy at least equivalent to those referred to in this Article. Such exchange of information must be intended for the performance of the supervisory task of the authorities or bodies mentioned.
Where the information originates in another Member State, it may not be disclosed without the express agreement of the competent authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement."
Article 2
Article 16(3) of Directive 92/49/EEC, Article 15(3) of Directive 92/96/EEC and Article 25(3) of Directive 93/22/EEC, shall be replaced by the following:
"3. Member States may conclude cooperation agreements providing for exchange of information with the competent authorities of third countries or with authorities or bodies of third countries as defined in paragraphs 5 and 5a only if the information disclosed is subject to guarantees of professional secrecy at least equivalent to those referred to in this Article. Such exchange of information must be intended for the performance of the supervisory task of the authorities or bodies mentioned.
Where the information originates in another Member State, it may not be disclosed without the express agreement of the competent authorities which have disclosed it and, where appropriate, solely for the purposes for which those authorities gave their agreement."
Article 3
1. Member States shall bring into force the laws, regulations and administrative provisions necessary for them to comply with this Directive not later than 17 November 2002. 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 to the Commission the text of the main provisions of domestic law, which they adopt in the field governed by this Directive.
Article 4
This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.
Article 5
This Directive is addressed to the Member States.
Done at Brussels, 7 November 2000. | [
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COMMISSION REGULATION (EC) No 1934/2005
of 24 November 2005
concerning tenders notified in response to the invitation to tender for the export of oats issued in Regulation (EC) No 1438/2005
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1), and in particular Article 7 thereof,
Having regard to Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules for the application of Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals (2), and in particular Article 7 thereof,
Having regard to Commission Regulation (EC) No 1438/2005 of 2 September 2005 on a special intervention measure for cereals in Finland and Sweden for the 2005/2006 marketing year (3),
Whereas:
(1)
An invitation to tender for the refund for the export of oats produced in Finland and Sweden for export from Finland and Sweden to all third countries, with the exception of Bulgaria, Norway, Romania and Switzerland was opened pursuant to Regulation (EC) No 1438/2005.
(2)
On the basis of the criteria laid down in Article 1 of Regulation (EC) No 1501/95, a maximum refund should not be fixed.
(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
No action shall be taken on the tenders notified from 18 to 24 November 2005 in response to the invitation to tender for the refund for the export of oats issued in Regulation (EC) No 1438/2005.
Article 2
This Regulation shall enter into force on 25 November 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States
Done at Brussels, 24 November 2005. | [
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COUNCIL DECISION
of 24 July 1995
on the conclusion of an Additional Protocol to the Agreement between the European Economic Community and the Kingdom of Norway consequent on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union
(95/312/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 113 in conjunction with Article 228 (2) first sentence thereof,
Having regard to the proposal from the Commission,
Whereas the Commission has negotiated on behalf of the Community an Additional Protocol to the Agreement between the European Economic Community and the Kingdom of Norway (1), signed in Brussels on 14 May 1973, to take account of the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union;
Whereas this Additional Protocol should be approved,
HAS DECIDED AS FOLLOWS:
Article 1
The Additional Protocol to the Agreement between the European Economic Community and the Kingdom of Norway consequent on the accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to the European Union is hereby approved on behalf of the Community.
The text of the Additional Protocol is attached to this Decision.
Article 2
The President of the Council is hereby authorized to designate the person empowered to sign the Additional Protocol in order to bind the Community.
Done at Brussels, 24 July 1995. | [
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*****
COUNCIL DIRECTIVE
of 22 November 1982
amending, for the second time (benzene), Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations
(82/806/EEC)
THE COUNCIL OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 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 benzene is recognized as being highly toxic and liable to affect the central nervous and herma- topoietic systems and to induce cancer and in particular leukaemia;
Whereas benzene is used inter alia as a constituent in the manufacture of certain toys, making it possible for children to absorb benzene by inhalation, ingestion or through the skin, thereby exposing them to the abovementioned hazards;
Whereas the fixing of a maximum concentration limit of benzene in the free state enables these hazards to be excluded;
Whereas benzene is governed by rules in certain Member States; whereas these rules differ as to the conditions of its marketing and use; whereas these differences constitute a barrier to trade and directly affect the establishment and functioning of the common market;
Whereas, in order to eliminate these differences, the Annex to Directive 76/769/EEC (4), as last amended by Directive 79/663/EEC (5), should be supplemented;
Whereas the Scientific Advisory Committee on the Toxicity and Eco-Toxicity of Chemical Compounds has delivered an opinion on this point,
HAS ADOPTED THIS DIRECTIVE:
Article 1
The following entry is hereby added to the Annex to Directive 76/769/EEC:
1.2 // '5. Benzene CAS No (Chemical Abstract Service Number) 71-43-2 // Not permitted in toys or parts of toys as placed on the market where the concentration of benzene in the free state is in excess of 5 mg/kg of the weight of the toy or part of toy.'
Article 2
Member States shall take the measures necessary to comply with this Directive within 12 months of its notification. They shall forthwith inform the Commission thereof.
Article 3
This Directive is addressed to the Member States.
Done at Brussels, 22 November 1982. | [
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COMMISSION DECISION
of 18 June 2007
extending the period of validity of Decision 2002/499/EC in respect of naturally or artificially dwarfed plants of Chamaecyparis Spach, Juniperus L. and Pinus L., originating in the Republic of Korea
(notified under document number C(2007) 2495)
(2007/432/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (1), and in particular Article 15(1) thereof,
Whereas:
(1)
Commission Decision 2002/499/EC of 26 June 2002 authorising derogations from certain provisions of Council Directive 2000/29/EC in respect of naturally or artificially dwarfed plants of Chamaecyparis Spach, Juniperus L. and Pinus L., originating in the Republic of Korea (2) authorises Member States to provide for derogations from certain provisions of Directive 2000/29/EC in respect of plants of Chamaecyparis Spach, Juniperus L. and Pinus L., originating in the Republic of Korea, for limited periods and subject to specific conditions.
(2)
Since the circumstances justifying that authorisation still apply and there is no new information giving cause for revision of the specific conditions, the authorisation should be extended.
(3)
Decision 2002/499/EC should therefore be amended accordingly.
(4)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plant Health,
HAS ADOPTED THIS DECISION:
Article 1
Decision 2002/499/EC is amended as follows:
1.
In the first and second paragraphs of Article 2, ‘2008’ is replaced by ‘2010’.
2.
Article 4 is replaced by the following:
‘Article 4
Member States may apply the derogations mentioned in Article 1 to plants imported into the Community in the following periods:
Plants
Period
Chamaecyparis:
1.6.2004 to 31.12.2010
Juniperus:
1.11.2004 to 31.3.2005
1.11.2005 to 31.3.2006
1.11.2006 to 31.3.2007
1.11.2007 to 31.3.2008
1.11.2008 to 31.3.2009
1.11.2009 to 31.3.2010
Pinus:
1.6.2004 to 31.12.2010’
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 18 June 2007. | [
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COMMISSION REGULATION (EC) No 1053/2005
of 5 July 2005
determining to what extent applications for the right to import bulls, cows and heifers of certain Alpine and mountain breeds pursuant to Regulation (EC) No 1081/1999 can be met
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal (1),
Having regard to Commission Regulation (EC) No 1081/1999 of 26 May 1999 opening and providing for the administration of tariff quotas for imports of bulls, cows and heifers other than for slaughter, of certain Alpine and mountain breeds, repealing Regulation (EC) No 1012/98 and amending Regulation (EC) No 1143/98 (2), and in particular Article 5 thereof,
Whereas:
(1)
Article 2(2) of Regulation (EC) No 1081/1999 provides for the quantities reserved for traditional importers under the two tariff quotas to be allocated in proportion to their imports during the period 1 July 2002 to 30 June 2005.
(2)
Allocation of the quantities available to operators covered by Article 2(3) of that Regulation under the two tariff quotas is to be in proportion to the quantities applied for within the meaning of Article 2(1)(b) of Regulation (EC) No 1081/1999, under order No 09.0003. Since the quantities applied for exceed those available, a fixed percentage reduction should be set,
HAS ADOPTED THIS REGULATION:
Article 1
1. Every application for the right to import lodged in accordance with Regulation (EC) No 1081/1999 under serial number 09.0001 shall be granted to the following extent:
(a)
100 % of the quantities imported within the meaning of Article 2(1)(a) of Regulation (EC) No 1081/1999;
(b)
100 % of the quantities applied for within the meaning of Article 2(1)(b) of Regulation (EC) No 1081/1999.
2. Every application for the right to import lodged in accordance with Regulation (EC) No 1081/1999 under serial number 09.0003 shall be granted to the following extent:
(a)
100 % of the quantities imported within the meaning of Article 2(1)(a) of Regulation (EC) No 1081/1999;
(b)
42,253521 % of the quantities applied for within the meaning of Article 2(1)(b) of Regulation (EC) No 1081/1999.
Article 2
This Regulation shall enter into force on 6 July 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 July 2005. | [
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COUNCIL REGULATION (EEC) No 3589/88 of 8 November 1988 opening, allocating and providing for the administration of a Community tariff quota for fillets of certain cod and of fish of the species Boreogadus saida, originating in Norway (1989)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the Act of Accession of Spain and Portugal,
Having regard to the proposal from the Commission,
Whereas an Agreement between the European Economic Community and the Kingdom of Norway was concluded on 14 May 1973; whereas, following the accession of Spain and Portugal to the Community, an Agreement in the form of an Exchange of Letters, was concluded and approved by Decision 86/557/EEC (1);
Whereas the said Agreement provides in particular for the opening of a Community tariff quota at zero duty for fillets of certain cod and of fish of the species Boreogadus saida, originating in Norway; whereas, therefore, the tariff quota in question should be opened for the period 1 January to 31 December 1989;
Whereas equal and continuous access to the quota should be ensured for all importers and the rate laid down for the quota should be applied consistently to all imports until the quota is used up; whereas, in the light of these principles, allocation of the tariff quota among the Member States would seem to preserve the Community nature of the quota; whereas, in order to correspond as closely as possible to the actual development of the market in the said product, the allocation should reflect proportionately the requirements of the Member States calculated with reference to statistics of imports from Norway during a representative reference period and to the economic outlook for the quota year in question;
Whereas during the latest years for which statistics are available, imports into each of the Member States were as follows:
(tonnes) Member States 1984 1985 1986 1987 Benelux 0 0 1 0 Denmark 72 10 2 21 Germany 0 0 0 0 Greece 0 11 0 0 Spain 37 0 0 14 France 58 8 19 24 Ireland 0 0 0 0 Italy 4 589 2 691 2 354 1 390 Portugal 0 0 0 0 United Kingdom 0 0 0 0 4 756 2 720 2 376 1 449 Whereas, during the years under consideration, the products in question were imported only by certain Member States and not at all by the other Member States; whereas in these circumstances initial shares should be allocated to the importing Member States and the other Member States should be guaranteed access to the tariff quota when imports into those States of the products concerned are notified; whereas these arrangements for allocation will equally ensure the uniform application of the Common Customs Tariff;
Whereas, in view of these factors, the initial percentage shares of the quota volume can be expressed approximately as follows:
Denmark0,50 Greece0,18 Spain0,21 France0,79 Italy98,32 Whereas, to allow for import trends for the products concerned, the quota volume should be divided into two parts, the first being allocated among the Member States and the second held as a reserve to cover any subsequent requirements of Member States which have used up their initial share; whereas, to afford importers some degree of certainty, the first part of the tariff quota should be set at a high level, which in this case could be 54 % of the quota volume;
Whereas initial shares may be used up at different rates; whereas, in order to avoid any break in the continuity of supplies on this account, it should be provided that any Member State which has almost used up its initial share should draw an additional share from the reserve; whereas, each time its additional share is almost used up, a Member State should draw a further share and so on as many times as the reserve allows; whereas the initial and additional shares must be valid until the end of the quota period; whereas this form of administration requires close cooperation between the Member States and the Commission and the latter must be able to monitor the extent to which the quota volume has been used up and inform the Member States accordingly;
Whereas if at a given date in the quota period a considerable quantity of a Member State's initial share remains unused,
it is essential that the Member State concerned return a significant proportion thereof to the reserve in order to prevent part of the Community tariff quota from remaining unused in one Member State while it could be used in others;
Whereas, since the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg are united within and jointly represented by the Benelux Economic Union, any measure concerning the administration of the shares allocated to that economic union may be carried out by any one of its members,
HAS ADOPTED THIS REGULATION:
Article 1 1. From 1 January to 31 December 1989 the customs duty applicable to imports of the following product shall be suspended at the level indicated and within the limits of a Community tariff quota as shown herewith:
Order No CN code Description Quota volume (tonnes) Rate of duty (%) 09.0709 ex 0305 30 19 Fillets of cod of the species Gadus morhua and Gadus ogac, and fish fillets of the species Boreogadus saida, dried, salted or in brine, originating in Norway 3 000 0 Within the limits of this tariff quota, the Kingdom of Spain and the Portuguese Republic shall apply duties of 3,4 % and 0 % respectively.
2. Imports of the products in question shall not be eligible under the tariff quota referred to in paragraph 1 unless the free-at-frontier-price, which is determined by the Member States in accordance with Article 21 of Regulation (EEC) No 3796/81 (2), as last amended by Regulation (EEC) No 3759/87 (3), is at least equal to the reference price set or to be set by the Community for the product or categories of products under consideration.
3. The Protocol on the definition of the concept of originating products and on methods of administrative cooperation, annexed to the Agreement between the European Economic Community and the Kingdom of Norway, shall apply.
Article 2 1. The tariff quota referred to in Article 1 (1) shall be divided into two parts.
2. The first part of this quota shall be allocated among certain Member States. The quota shares shall, subject to Article 5, be valid until 31 December 1989, and shall be as follows:
(in tonnes) Denmark8 Greece3 Spain3 France13 Italy1 593 3. The second part of the quota, amounting to 1 380 tonnes, shall constitute the reserve.
4. If an importer indicates that a consignment of the products in question is to be imported into a Member State not included in the initial allocation and applies to use the quota, the Member State concerned shall inform the Commission and draw an amount corresponding to its requirements to the extent that the available balance of the reserve so permits.
Article 3 1. If a Member State has used 90 % or more of its initial share as specified in Article 2 (2), or of that share less any proportion returned to the reserve pursuant to Article 5, it shall forthwith, by notifying the Commission, and to the extent that the reserve so permits, draw a second share, equal to 10 % of its initial share, rounded up where necessary to the next whole number.
2. If, after its initial share has been used up, a Member State has used 90 % or more of the second share as well,
it shall forthwith, using the procedure provided for in paragraph 1, draw a third share equal to 5 % of its initial share, rounded up where necessary to the next whole number.
3. If, after its second share has been used up, a Member State has used 90 % or more of its third share, it shall, using the procedure provided for in paragraph 1, draw a fourth share equal to the third.
This process shall apply until the reserve is used up.
4. By way of derogation from paragraphs 1, 2 and 3, Member States may draw shares lower than those specified in those paragraphs if there are grounds for believing that they may not be used in full. Member States shall inform the Commission of their reasons for applying this paragraph.
Article 4 Additional shares drawn pursuant to Article 3 shall be valid until 31 December 1989.
Article 5 Member States shall, not later than 1 October 1989, return to the reserve the unused portion of their initial share which, on 15 September 1989, is in excess of 20 % of the initial volume. They may return a greater portion if there are grounds for believing that it may not be used in full.
Member States shall, not later than 1 October 1989, notify the Commission of the total quantities of the product in question imported up to and including 15 September 1989 and charged against the Community quota and of any portion of their initial shares returned to the reserve.
Article 6 The Commission shall keep an account of the shares opened by the Member States pursuant to Articles 2 and 3 and shall, as soon as the information reaches it, inform each State of the extent to which the reserve has been used up.
It shall, not later than 5 October 1989, inform the Member States of the amount still in reserve, following any return of shares pursuant to Article 5.
It shall ensure that the drawing which exhausts the reserve does not exceed the balance available, and to this end shall notify the amount of that balance to the Member State making the last drawing.
Article 7 1. The Member States shall take all appropriate measures to ensure that additional drawings of shares pursuant to Article 3 are carried out in such a way that imports may be charged without interruption against their accumulated shares of the Community quota.
2. The Member States shall ensure that importers of the product in question have free access to the shares allocated to them.
3. The Member States shall charge imports of the product in question against their shares as and when the product is entered with the customs authorities for free circulation.
4. The extent to which a Member State has used up its share shall be determined on the basis of the imports charged in accordance with paragraph 3.
Article 8 At the request of the Commission, the Member States shall inform it of imports actually charged against their quota shares.
Article 9 Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with.
Article 10 This Regulation shall enter into force on 1 January 1989.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 November 1988. | [
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COMMISSION REGULATION (EEC) No 2537/89
of 8 August 1989
laying down detailed rules for the application of the special measures for soya beans
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 4191/85 of 23 May 1985 laying down special measures in respect of soya beans (1), as last amended by Regulation (EEC) No 2217/88 (2), and in particular Article 2 (8) and the third paragraph of Article 3 thereof,
Having regard to Council Regulation (EEC) No 2194/85 of 25 July 1985 adopting general rules concerning special measures for soya beans (3), as last amended by Regulation (EEC) No 1231/89 (4), and in particular Article 9 thereof,
Whereas Article 2 (1) (a) of Regulation (EEC) No 2194/85 specifies that the first purchaser is to keep stock records; whereas, in order to enable beans harvested in the Community to be distinguished from imported beans, it should be specified that separate stock records are to be kept for the two categories of beans and that they are to be stored in different premises;
Whereas, as the second paragraph of Article 2 of Regulation (EEC) No 2194/85 provides for the approval by the competent agency of the first purchaser other than the processor, it is necessary to determine the conditions for approval;
Whereas standardized terms to be incorporated in the contracts concluded between producers and first purchasers, and also the terms to be incorporated into the delivery declarations, should be laid down; whereas, with a view to observing the minimum price in contracts, provision should be made for the selling price to be expressed by unit of weight of product of standard quality, such that the contract should mention any increases and reductions in the selling price;
Whereas Article 4a of Regulation (EEC) No 2194/85 provides for the introduction of a Community aid certificate; whereas the entry into force of these rules requires the adoption of common provisions on the drawing-up and use of these certificates, on the introduction of Community forms and on the setting-up of methods of administrative cooperation between Member States; whereas these provisions are to a great extent common to the rules in the oil seeds sector and whereas it is sufficient, where such provisions are of a strictly administrative nature and do not concern the operators, to refer to the applicable provisions of Commission Regulation (EEC) No 2681/83 of 21 September 1983, laying down detailed rules for the application of the subsidy system for oil seeds (5), as last amended by Regulation (EEC) No 1966/89 (6);
Whereas, having regard to practice in the seed trade, a certain tolerance should be allowed in respect of the quantity identified in comparison with that specified in the certificate;
Whereas, where the aid is fixed in advance, the term of validity of the certificate must be determined with due regard to the need to adapt the conditions for buying in seeds harvested in the Community to those on the world market;
Whereas Article 4b of Regulation (EEC) No 2194/85 makes the issue of a certificate subject, where the aid is fixed in advance, to the lodging of a security which, except in cases of force majeure, is forfeited if the beans are not properly identified during the term of validity of the certificate; whereas, to that end, the security system should be defined by fixing the calculation method and the conditions for the release of the security;
Whereas Member States must set up a control system ensuring that only the products entitled to aid receive it, and whereas this system should enable checks to be made upon the observance of the minimum price referred to in Article 2 (3) of Regulation (EEC) No 1491/85;
Whereas, to ensure uniform application of the aid system, the procedures for paying the aid should be defined; whereas it is also necessary to determine the conditions for advance payment of the aid and the circumstances under which it shall be forfeited;
Whereas a criterion should be established relating to the minimum frequency of fixing the aid; whereas it appears sufficient for the aid to be fixed at least twice each month;
Whereas Article 1 of Regulation (EEC) No 2194/85 specifies the criteria for determining the world market price for soya beans;
Whereas, in view of the price fluctuations that normally occur on the world market, the world market price for soya beans should be determined at least twice a month;
Whereas provision should be made for adjusting the offers and quotations used in order to compensate for any differences in quality and conditions and place of delivery compared with the product for which the world price must be fixed;
Whereas the operation for the maximum guaranteed quantities provided for in Article 3a of Regulation (EEC) No 1491/85 must be clarified;
Whereas, to facilitate verification of the checks on entitlement to aid in respect of Community produced soya beans, it is necessary to monitor, at least statistically, the destination of soya beans imported from third countries;
Whereas, notwithstanding the measures applying to the rest of the Community, Article 7 of Regulation (EEC) No 2194/85 provides that in the case of the French overseas departments, the aid should be granted to soya bean producers in respect of a level of production established be applying a representative yield to the areas on which soya beans have been sown and harvested; whereas, therefore, certain detailed rules should be laid down for implementing these new arrangements;
Whereas, to facilitate proper management of the aid arrangements in the departments in question, it is necessary that France should communicate to the Commission certain data concerning the aid;
Whereas this Regulation extends the system of identification and advance fixing applicable to the system of aid for oilseeds to include the special measures for soya beans; whereas this results in a strengthening of the control procedures; whereas, in addition, experience has shown the need for such strengthening; whereas, therefore, the detailed rules for the application of the system of aid should be redrafted in a new text and Commission Regulation (EEC) No 2329/85 of 12 August 1985 laying down detailed rules for the application of the special measures for soya beans (1), as last amended by Regulation (EEC) No 3118/88 (2), should be repealed;
Whereas, however, the need to strengthen the control conditions and the approval of the first buyer who is not a processor is related to the scale of production in the various Member States and of the subsequent difficulties which may arise in the application of certain provisions of these arrangements; whereas the use of the derogation arrangements provided for in Article 2 (2) of Regulation (EEC) No 2194/85 by certain Member States may be such as to aggravate difficulties; whereas on the other hand excessively restrictive conditions should not be laid down in those Member States where production does not exceed a certain threshold and where the arrangements as they currently operate do not present particular difficulties; whereas, in the light of experience gained, this threshold should be fixed at 400 000 tonnes;
Whereas experience also indicates additional difficulties of controls where soya beans are incorporated directly in foodstuffs and feed and whereas the possibility of storing beans outside the production plant should consequently be limited solely to cases where beans are crushed for the production of oil;
Whereas, in view of the imminent beginning of the 1989/90 marketing year, the introduction on that date of certain provisions of the new system would be technically impossible; whereas provisions should therefore be made for such transition measures as are strictly necessary for the abovementioned marketing year;
Whereas the Management Committee for Oils and Fats has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation lays down the detailed rules for the application of the system of aid for soya beans instituted by Regulation (EEC) No 1491/85.
Article 2
1. For the purposes of this Regulation, 'undertaking' means:
(a) an oil mill, including:
- any building or other place within the precincts of the establishment where production takes place,
- any warehousing unit outside such precincts located in the customs territory of the Member State where the production establishment is located in which the stored products can be properly controlled and which has been approved in advance by the authority responsible for that control;
(b) an establishment manufacturing feedingstuffs or foodstuffs intended for use by the final consumer without further processing;
(c) any establishment managed by a first purchaser who is not a processor, which is approved within the meaning of Article 2 (2) of Regulation (EEC) No 2194/85, including storage installations in which the stored products can be properly controlled and which has been approved in advance by the authority responsible for that control.
2. Within the meaning of Article 3 of Regulation (EEC) No 2194/85, 'processing for other uses in human food or animal feeding' shall be understood to mean the crushing or cooking required for use of the product, direct or as a mixture.
The processing procedure must be such that the soya beans lose their identity in such a way that the competent authority may ensure that the beans so processed may not be the subject of a new aid application.
3. For the purposes of this Regulation:
(a) first purchaser who is a processor' means:
any natural or legal person directly responsible for the activities of an oil mill, an establishment for the production of animal feedingstuffs or an establishment manufacturing foodstuffs for human consumption;
(b) approved first purchaser who is not a processor' means:
until 31 December 1992, in those Member States where production is less than 400 000 tonnes, any natural or legal person whose principal activity is trading in beans and cereals, and who does not fulfil the conditions likely to entitle him to receive aid under Article 2 (1) of Regulation (EEC) No 2194/85. In the other Member States this first purchaser must in addition exercise no processing activity, even partially, upon the beans in which he trades.
CHAPTER 1
General conditions
Article 3
1. The control referred to in Article 6 (1) of Regulation (EEC) No 2194/85 must, in particular, make it possible to check that the quantity of beans which entered the undertaking corresponds to the quantity of identified beans, and also, depending on the particular circumstances invoved, to:
(a) the quantity of oil and oilcake obtained by processing such beans;
(b) the quantity of beans used in animal feed or foodstuffs;
(c) the quantity of seeds leaving the undertaking in an unaltered state, in cases where the undertaking in question corresponds to the definition referred to in the first subparagraph of Article 2 (1) (c).
2. For the purposes of this control, every undertaking shall keep separate stock records for soya beans harvested in the Community and for imported beans. These shall contain at least the following information:
- the quantities in weight of beans received as such and in the case of beans harvested in the Community, moisture content and impurity content,
- the movements between the various stores of the undertaking,
- the quantities of beans processed and the type and quantity of the products obtained where the first purchaser is also the processor; at the request of the competent agency the percentage of soya beans used in the processed mixture obtained must be specified,
- the quantity of beans or of the processed products leaving the undertaking and their destinations,
- a regular inventory of stocks, carried out at least on a quarterly basis,
- references to the contracts, delivery declarations and invoices or equivalent documents for both products bought and products sold and, in the case where the first purchaser is not the processor, references to the relevant documents relating to the delivery to the processor.
3. The undertaking shall also make its financial accounts available to the authority responsible for control.
4. In addition, every first purchaser shall:
- allow officials of the authority responsible for control to have access to his premises,
- comply with the obligations arising from this Regulation,
- facilitate inspection operations,
- keep all the documents relating to the transactions concerned, together with his financial accounts and copies of contracts and delivery declarations, available for inspection by the agency designated by the Member State,
- not store imported soya beans in an approved establishment within the meaning of Article 2 (1) (c), if he is eligible under the provisions applicable to approved first purchasers who are not processors.
Article 4
1. Until 31 December 1992, in order to be approved within the meaning of Article 2 (2) of Regulation (EEC) No 2194/85, each approved first purchaser who is not a processor shall, in addition to his obligations resulting from Article 3:
(a) provide adequate assurance, from the financial point of view, that he is able to discharge his obligations arising under this system;
(b) have at least the storage capacity required to receive the quantities to be delivered under the contracts concluded, calculated according to the formula defined in Annex III. The undertaking must be suitably equipped for weighing and analysing the beans to determine the quality as compared with the standard quality;
(c) keep the stock and the other information referred to in Article 3 and in this paragraph from the date of his application for approval for a period of at least three years;
(1) OJ No L 151, 10. 6. 1985, p. 15.
(2) OJ No L 197, 26. 7. 1988, p. 11.
(3) OJ No L 204, 2. 8. 1985, p. 1.
(4) OJ No L 128, 11. 5. 1989, p. 24.
(5) OJ No L 266, 28. 9. 1983, p. 1.
(6) OJ No L 187, 1. 7. 1989, p. 130.
(1) OJ No L 218, 15. 8. 1985, p. 16.
(2) OJ No L 278, 11. 10. 1988, p. 24.
(d) either, in Member States where soya production does not exceed 400 000 tonnes, fulfil the relevant conditions required under national rules for storing and marketing oil seeds or soya beans, or, in the other Member States, undertake in addition to conclude with producers located in the same Member State contracts relating globally to a minimum area of 95 000 hectares.
2. The competent agency shall allocate an identification code to each approved first purchaser fulfilling the conditions of paragraph 1.
This code must appear on all the documents concerning him referred to in this Regulation.
3. The competent agency may grant provisional approval to the first purchaser concerned upon submission of an application for approval.
Provisionally approved first purchasers shall be assigned an identification code. If it is found that any of the conditions laid down in paragraph 1 are not satisfied, and in particular if this creates difficulties for the competent agency of the Member State in establishing the right to aid, provisional approval shall be withdrawn. Withdrawal shall be retroactive until the date of the provisional approval and any aid paid since that date shall be recovered.
4. Provisional approval shall become final as soon as the Member State concerned is satisfied that the approval conditions laid down in paragraph 1 are fulfilled.
Without prejudice to the withdrawal of approval referred to in Article 5 and decided on by the competent agency, the approval shall lapse where a Member State decides to revoke application on its territory of the exceptional arrangements laid down in Article 2 (3) of the abovementioned Regulation.
Article 5
1. If an undertaking with the meaning of Article 2 (1) (c) or an approved first purchaser who is not a processor commits a serious failure to comply with the provisions laid down in Articles 3 and 4, approval of the latter shall be withdrawn for a period of one to five marketing years, without prejudice to any other measures applicable in such a case.
2. If any operations carried out in approved premises within the meaning of the second indent of Article 2 (1) (a) or in an approval establishment within the meaning of Article 2 (1) (c) does not comply with this Regulation, withdrawal of approval for the premises or establishments in question shall ensue, without prejudice to any other measures applicable in such a case.
Article 6
1. Contracts as referred to in Article 2 (1) (b) of Regulation (EEC) No 2194/85 shall be concluded in writing. They shall be lodged before a date to be fixed by each Member State but at least one month before the date on which the harvesting of the soya beans covered by the contract is due to begin. The contracts shall be lodged with the competent agency of the Member State in which the beans are to be harvested.
2. Contracts shall provide at least the following information:
(a) the names, forenames, addresses and signatures of the contracting parties;
(b) the date of signature;
(c) an undertaking on the part of the first purchaser to pay the producer at least the minimum price, and, where applicable, the price premium or discount to be paid to the producer on top of the minimum price, pursuant to an agreement reached collectively between the producers and the first purchasers or between the contracting parties.
In order to allow the producer to calculate the price to be paid for the quantities delivered, the method of calculation referred to in Annex I and a reference to the agreed bonuses or discounts shall be provided. This may refer to a collective agreement between the first purchasers and the producers or between the parties pursuant to Article 7 (3);
(d) an undertaking on the part of the producer to deliver, and on the part of the first purchaser to take delivery of, all the beans of sound and fair merchantable quality to be harvested by the producer on all the areas which he sows with beans;
(e) the actual area sown with soya beans, in hectares and ares;
(f) the particulars necessary for the identification of the areas in question, including:
appropriate cadastral references for each plot sown or references recognized as equivalent by the agency responsible for control;
(g) the yields obtained by the producer at the previous harvest;
(h) an identification number, to be indicated on the delivery declarations referred to in Article 8.
Supplementary information may be provided upon request by the competent agency, in particular in relation to the raising of animals by the producer.
3. After the contract has been signed, the areas indicated in accordance with paragraph 2 (e) and (f) may not be used by the producer for any other purpose than for cultivating soya beans, except in cases of force majeure or any other similar grounds recognized as valid by the competent agency.
As a consequence, any change in the use to be made of areas indicated which may take place after the contract has been signed but before it has been lodged with the competent agency must be the subject of an amendment to the contract correcting such areas and specifying the reason for the change. In addition any change in the use to be made of all or part of the areas indicated occurring in the three months preceding the date laid down for the beginning of harvesting of soya beans covered by the contract must be notified by the producer to the competent agency, to the agency responsible for control and to the first purchaser each time that such a change involves more than 10 % of the area indicated and more than one hectare of area. Such notification must be made in writing within eight working days from the date on which the change took place.
4. In cases of contracts concluded between first purchasers and cooperatives acting on behalf of a number of producers, all the information concerning the producer referred to in paragraph 2 must be given for each producer concerned by the contract.
5. Failure to comply with the provisions of paragraph 2 (e) and (f) or paragraphs 3 and 4 invalidates the contract for the purposes of this Regulation and beans harvested under that contract may no longer be eligible for aid, unless it can be proven, to the satisfaction of the Member State, that there has been no serious negligence or serious fault. In addition, failure to comply with the provisions of paragraph 3 may result in the producer being excluded from qualifying for aid under this Regulation during the next marketing year where it is shown that serious negligence or serious fault has occurred.
However, the provisions of the preceding subparagraph only apply where inspection of the areas shows a difference of more than 10 % between areas declared and the areas actually sown with soya beans and which may be harvested.
Article 7
1. The price payable to the producer shall not be lower than the minimum price referred to in Article 2 (2) of Regulation (EEC) No 1491/85.
2. The price referred to in paragraph 1 shall be for goods in bulk of sound and fair merchantable quality with moisture and impurity levels corresponding to those of the standard quality, ex production region.
The price shall be converted into national currencies using the agricultural conversion rate obtaining on the date of the beginning of the marketing year in question.
3. The selling price shall be increased or reduced for each percentage point of impurity or moisture content below or above the standard quality.
In the case of a first purchaser who has taken delivery of goods which are not of sound and fair merchantable quality and who carried out operations enabling them to attain that condition, the price payable for the delivered products must correspond to the price referred to in paragraph 1, for products of the quality referred to in the first subparagraph, less the costs arising from those operations including costs resulting from any loss in weight that may be involved.
4. The weight to be taken into account for the comparison between the price payable referred to in paragraph 1 and the minimum price shall be the weight of sound, genuine and merchantable goods delivered to the first purchaser, adjusted in conformity with the method given in Annex I.
Article 8
1. For each delivery of soya beans received from producers, all first purchasers, whether they are processors of soya beans or first purchasers who are not approved processors, shall lodge a delivery declaration as referred to in Article 2 (1) (b) of Regulation (EEC) No 2194/85 with the competent agency.
2. However, where, for a given marketing year, a producer makes several deliveries to the same first buyer, the latter may lodge, for all or part of those deliveries, an overall declaration, broken down by delivery.
3. In all cases, for inspection purposes, an overall final declaration must also be presented at the moment of identification of the last delivery.
4. Delivery declarations shall include at least:
- the surnames, forenames and addresses of the producer and of the first purchaser and, where applicable, the identification code of the latter,
- the signatures of the producer or his representative, and of the first purchaser,
- the contract number referred to in Article 6 (2) (1),
- the marketing year in which the product delivered was harvested,
- the date of delivery, and the weight of product of sound and fair merchantable quality as received, delivered by the producer to the first purchaser,
- the moisture content and impurity content of the products delivered,
- the quantity compared with the standard quality eligible for aid.
In the case of an overall declaration other than the one referred to in paragraph 3, the above information, with the exception of that referred to in the first three indents, must be specified for each delivery. The declaration referred to in paragraph 3 must include all the above information without exception.
5. Delivery declarations relating to quantities in respect of which identification has been applied for must be lodged at least three days before the processing or, where the first purchaser is not an approved processor, at least three days before the beans in question leave the undertaking. Failure to comply with this provision shall entail loss of entitlement to the aid.
Article 9
Declarations of sale or delivery by an approved first purchaser who is not a processor to a processor, referred to in Article 2 (2) of Regulation (EEC) No 2194/85, shall be drawn up in writing and shall contain the following information: (a) the names, forenames, addresses and signatures of the two parties concerned;
(b) the date of signature;
(c) the quantity sold or delivered, with reference to the ID part of the certificates relating to the quantities in question;
(d) the date of sale or delivery;
(e) the quantity actually delivered, with details of the moisture and impurity content established on entry into the processing establishment;
(f) an undertaking by the processor to process the beans within the Community, specifying the type of processing envisaged;
(g) an undertaking by the processor to permit the inspection operations referred to in Article 26, under the terms of Article 3.
CHAPTER 2
Identification and advance fixing of the aid
Article 10
The two-part certificate referred to in Article 4a of Regulation (EEC) No 2194/85 shall consist of one part, designated AP, certifying the advance fixing of the aid, and one part, designated ID, certifying identification of the beans.
The certificate shall be made out in at least two copies, the first of which shall be issued to the applicant and the second kept by the competent agency.
Article 11
1. Application may be made to the competent agency referred to in Article 6 of this Regulation for the ID part of the certificate for a single lot or for several lots. In no case may an application be made for the ID part of the certificate in respect of a lot for which an ID part has already been issued.
'Lot' shall be understood to mean a quantity of seeds covered by a delivery declaraltion, numbered by the interested party when it enters the undertaking and analysed pursuant to Article 30.
2. The application for the ID part of the certificate shall be considered only if the seeds entered the undertaking at the latest on the day on which it was submitted.
The application must be accompanied by delivery declarations corresponding to the quantities for which identification is applied for.
Article 12
1. Applications for the AP and ID parts of the certificate shall be sent to or lodged with the competent agency referred to in Article 6 of this Regulation on a printed form made out in accordance with Article 18 of Regulation (EEC) No 2681/83, or otherwise they shall not be considered.
However, they may be sent to the competent agency by telegram, telex or telefax.
In this case, they shall be rejected unless they comprise all the information which would have had to be shown on the form if the latter had been used. The telegram, telex or telefax shall be followed within eight working days by an application in accordance with the provisions of the first subparagraph.
An application containing conditions not provided for in Community regulations shall be rejected.
2. An application for the AP part of the certificate shall be rejected if the security referred to in Article 4b of Regulation (EEC) No 2194/85 is not lodged with or guaranteed to the competent agency not later than 4 p.m. on the day on which the application is lodged, or, where the guarantee is given by telegram, if it has been recorded at the transmitting telegraph office after 4 p.m., or, if it has been recorded not later than 4 p.m., it reaches the competent agency after 5.30 p.m.
Article 13
1. If an application is made for the ID part of a type of ban in respect of which aid has been fixed in advance, the application shall be rejected unless it is accompanied by copy No 1 of the AP part of the certificate.
2. If the application was sent to the competent agency by telegram, telex or telefax, copy No 1 of the AP part of the certificate must reach the competent agency at the latest during the second working day following that on which the application is submitted.
Article 14
1. 'The day on which the application for the certificate is lodged' means:
(a) if the application is lodged directly with the competent agency, the day on which the application is lodged, provided that lodging is effected by 4 p.m. at the latest;
(b) if the application is sent by letter, telex or telefax to the competent agency, the day on which it is received by the latter, provided that it is received by 4 p.m. at the latest;
(c) if the application is sent by telegram to the competent agency, the day on which it is received by the latter, provided that the telegram is recorded at the transmitting telegraph office not later than 4 p.m. and reaches the competent agency not later than 5.30 p.m.
However, in the case of applications for the ID part of the certificate, where failure to comply with the deadlines laid down above does not alter the rate of the aid applicable,
- the 4 p.m. deadline shall be extended until 12 p.m.,
- the provision concerning the 5.30 p.m. deadline referred to under (c) of the first subparagraph shall no longer be applicable.
2. Applications for certificates which arrive either on a day which is a non-working day for the competent agency, or on a day which is a working day for the latter but after the times specified above, shall be regarded as having been lodged on the following working day.
3. Applications for certificates which are sent by telegram in accordance with paragraph 1 (c) and arrive after 5.30 p.m. shall be rejected if the applicant does not specify, unequivocally and in a manner which precludes dispute, his intention to request, should the application arrive late, the rate of the aid valid on the first working day following that on which it is received. Such specification is given by using the words 'without reservation'.
Applications sent by telegram recorded at the transmitting telegraph office after 4 p.m. shall be regarded as having been lodged on the following working day, even if they arrive on another day, the rules laid down above relating to the day of application by telegram shall apply.
4. The deadlines specified in this Regulation shall be Belgian time.
Article 15
Where the application for a certificate and the guarantee of the security for the AP part of the certificate are sent by telegram and the telegram, through recorded not later than 4 p.m. has not reached the competent agency before 5.30 p.m. for reasons of force majeure, that agency may decide that the telegram be regarded as having arrived within the prescribed time limit.
If an agency recognizes a case of force majeure, the Member State under whose jurisdiction it comes shall immediately advise the Commission, which shall inform the other Member States thereof.
Article 16
The certificate shall be regarded as issued:
- with regard to the AP part, on the afternoon of the first working day following that on which the application is lodged,
- with regard to the ID Part, on the day on which the application is lodged.
Article 17
Rights and obligations deriving from the certificates shall not be transferable.
Article 18
1. The AP part of the certificate shall be valid as from the date referred to in Article 16 until the end of the fifth month following that during which the application was lodged.
2. However, the AP part of the certificate is issued in respect of a given marketing year. It may be issued in respect of the current marketing year or the following marketing year at the request of the applicant, to be made at the time of application. In this case, the operator shall be obliged to identify the beans in respect of which the rate of aid applied for is attributed on the said AP part during the marketing year chosen, except in case of force majeure.
Article 19
1. The rate of aid per 100 kilograms of beans, expressed in ecus, entered on the AP part of the certificate shall be that valid on the day on which the application for the certificate is lodged. This is indicated with the proviso that the guide price may be changed between the day on which the certificate is applied for and the day on which the beans are identified.
2. The rate of aid per 100 kilograms of beans, expressed in ecus, or in national currency entered on the ID part of the certificate shall be that valid on the day on which the certificate is accepted.
Article 20
1. The issue of the AP part of the certificate makes it obligatory to apply for identification of the beans specified therein during the period of validity of the certificate.
In addition, the application for identification must be made in accordance with the obligation laid down in Article 18 (2).
2. The quantities referred to in paragraph 1 shall refer to a product with moisture and impurity contents corresponding to the standard quality.
3. The ID certificates granted for an AP certificate must, during its period of validity, cover between 93 % and 107 % of the quantity shown in the AP part of the certificate.
If the quantities identified under this certificate exceed the quantity shown in the AP part of the certificate by more than 7 %, that excess quantity shall qualify for the rate of aid valid on the day of its identification.
If the quantities identified under the certificate are less than 93 % of the quantity shown on the certificate, the security shall be forfeit in proportion to the missing quantities. Otherwise, the security shall be released as soon as the identified quantities reach 93 % of the quantity shown.
Article 21
1. Where the application for identification is submitted by a processor under the conditions laid down in the first paragraph of Article 2 of Regulation (EEC) No 2194/85, the issue of the ID Part of the certificate shall, except in cases of force majeure, oblige the recipient to process the identified quantity within a period of 150 days from the date of issue.
The obligation shall be considered to be fulfilled where the processed quantity is not more than 2 % less than the quantity identified.
The quantities processed shall be considered as following exactly the order of the quantities identified, except in cases where it is possible to follow all of the lots of beans entering an undertaking during the whole of a given marketing year until their processing. Quantities processed before identification shall no longer be eligible for aid. If the quantity processed is less than 98 % of the quantity identified, the aid to be paid during a given period of control shall be reduced by the difference between the quantity identified and the quantity processed, multiplied by the highest rate of aid applicable during that period. 2. Where the application for identification is submitted by an approved first purchaser who is not a processor, in accordance with the second paragraph of Article 2 of Regulation (EEC) No 2194/85, the issue of the ID part of the certificate shall, except in cases of force majeure, oblige the recipient to deliver and to submit to the competent agency a sale or delivery declaration as referred to in Article 9 of this Regulation within a period of 150 days from the date of issue of the said ID certificate. This declaration must relate to the ID certificates covering the beans leaving the undertaking. The quantity actually delivered may not be more than 4 % less than the quantities shown in the ID parts of the certificates to which the sale or delivery declaration relates. Any beans sold or delivered before identification shall no longer be eligible for aid.
If the quantity actually delivered is less than 96 % of the quantity identified, entitlement to the aid shall be lost in respect of the missing quantity, and a penalty shall be applied to the remaining aid.
However, the penalty shall not be applied where it is shown to the satisfaction of the Member State that the missing quantity corresponds to beans sold or delivered before identification, in respect of which entitlement to the aid has already been lost, and which have therefore not been the subject of attempted fraud.
If the quantity actually delivered is more than 100 % of the identified quantity, aid shall be paid in respect of the identified quantity. If the quantity actually delivered is between 96 % and 100 % of the identified quantity, aid shall be paid in respect of the identified quantity.
3. The quantity actually processed and the quantity actually delivered shall be adjusted in accordance with the method set out in Annex I.
Article 22
1. Articles 16 to 20 of Regulation (EEC) No 2681/83 shall apply, mutatis mutandis, to applications for certificates and certificates issued under this Regulation.
2. Without prejudice to Article 20 of Regulation (EEC) No 2681/83 where an agency issuing certificates has recourse to one of the provisions referred to in paragraph 1 it shall advise the Commission immediately, in writing, of the exact circumstances. The Commission shall inform the other Member States forthwith.
Article 23
1. The amount of the security referred to in Article 4a of Regulation (EEC) No 2194/85 shall be fixed by the Commission, which shall inform the Member State of the conditions laid down in Article 37 (2).
2. The security, which is intended to guarantee completion of the operations on which entitlement to the aid is conditional, shall take one of the forms provided for in Article 8 of Commission Regulation (EEC) No 2220/85 (1).
Article 24
1. The release of the security referred to in Article 23 shall be subject to proof that the obligations referred to in Article 20 have been fulfilled. That proof shall be given by producing copy No 1 of the AP part of the certificate in accordance with Article 13 (1), Release of the security shall take place immediately following production of the proof referred to above.
2. Subject to the provisions of Article 25, if the obligations referred to in Article 20 are not fulfilled the security shall be forfeited in respect of a quantity equal to the difference between:
(a) 93 % of the net quantity shown on the certificate,
(b) the quantity identified at the undertaking, determined in accordance with the method defined in Annex I.
However, if the quantity identified amounts to less than 7 % of the net quantity shown in the certificate, the whole security shall be forfeited. Furthermore, if the total amount of the security which should be forfeited is less than ECU 5 in respect of a certificate, the Member State may release the full security.
3. At the request of the titular holder of the AP part of the certificate, the Member States may release the security in parts in proportion to the quantities of products in respect of which the proof referred to in paragraph 1 has been given.
Article 25
1. If it is not possible to fulfil the obligations laid down in Article 20 during the term of validity of the certificate for reasons of force majeure, the competent agency of the Member State issuing the certificate shall decide, at the request of the titular holder, either that these obligations shall be cancelled, the security being released, or that the term of validity of the certificate shall be extended for the period of time considered necessary in the circumstances. The extension may be given after the term of validity of the document has expired. The decision to cancel or extend shall be limited to the quantity of the product in respect of which the abovementioned obligations could not be fulfilled owing to reasons of force majeure. Any extension of the certificate shall be the subject of an endorsement thereon by the issuing agency. The certificate shall be adapted accordingly.
2. If the competent agency recognizes a case of force majeure, the Member State under whose jurisdiction it comes shall immediately advise the Commission, which shall inform the other Member States thereof.
3. The titular holder of the certificate shall furnish proof of the circumstance considered to constitute a case of force majeure.
4. If the term of validity of the certificate is extended the rate of aid fixed in advance to be granted shall be that determined in respect of the last month of the term of validity of the certificate.
CHAPTER 3
Control measures
Article 26
1. The agency responsible for control shall verify with regard to the contract:
(a) that the conditions laid down in Article 6 are fulfilled and, by means of random checks, that the areas indicated have actually been sown with soya beans; where such checks suggest that the area differs from that declared, the Member State shall, without prejudice to any penalties which it may apply, correct the contract forthwith;
(b) that the price to be paid to the producer, account being taken of the provisions of Article 7, is at least equal to the minimum price referred to in Article 2 (2) of Regulation (EEC) No 1491/85. The conversion rate to be applied for the purpose of checking that the minimum price has been observed in the case of a product harvested during a given marketing year shall be the representative rate in force at the beginning of the marketing year in question.
The agency responsible for control shall carry out spot checks as follows:
- in Member States where production exceeds 400 000 tonnes, all contracts concluded by a first purchaser with a legal person, other than an agricultural cooperative, and all contracts covering areas of more than 200 hectares must be verified,
- in the other Member States, all contracts covering areas of more than 100 hectares must be verified,
- in all other Member States, 5 % of the remaining area, selected at random, must also be the subject of spot checks,
- verification must relate to compliance with the conditions referred to in Article 6.
2. As regards the final, overall delivery declaration referred to in Article 8 (3), the agency responsible for control shall verify that the particulars specified in Article 8 are complete, and, by means of random checks, that the quantities indicated in the delivery declaration could have been produced in the area indicated in the contract according to the established yields for that production zone. Where the Member State concluded that the quantity indicated in the delivery declaration could not have been produced in the area indicated in the contract, it shall undertake the necessary procedure to ensure that sums paid unduly are recovered: in particular, all the securities lodged by the first purchaser in question, up to the amount of aid paid in respect of that contract, shall be forfeited to the competent agency.
The abovementioned parties shall be responsible for furnishing proof that the quantity shown in the final overall delivery declaration could have been produced in the area specified in the contract.
3. As regards the declaration of sale or delivery referred to in Article 9, the agency responsible for control shall verify that the particulars specified in Article 9 are complete, particularly as regards the undertaking and signature of the processor and, by means of random checks, that the products covered by the said declaration are actually processed.
4. The agency responsible for control shall carry out spot checks at the premises of the first purchasers, to ensure that the conditions laid down in Article 3 are fulfilled and in particular that the stocks held in store tally with the stock and financial accounts.
These spot checks must be carried out without prior notification, at least once a year.
The party concerned shall be responsible for furnishing proof that the necessary conditions have been met.
However, in those Member States where soya bean production is less than 400 000 tonnes, the spot checks carried out pursuant to Article 27 or Article 28 may be sufficient in the case of approved first purchasers who are not processors and who have concluded less than 200 contracts with soya producers.
5. Where an irregularity is discovered in the course of a check the following provisions shall apply:
- failure to comply with the provisions of Article 6 shall ledad to the application of the provisions of Article 6 (5) to the producer. In addition, if it is established that the first purchaser knew of the negligence or serious fault of the producer, his approval shall be withdrawn or he shall be otherwise excluded from benefiting from the provisions of this Regulation for the duration of the following marketing year,
- failure to comply by the first purchaser with the provisions relating to the minimum price shall result in the obligation to pay the producer, for the quantities in question, an amount equal to twice the difference between the minimum price and the price actually paid by way of damages,
- each time for a given quantity of beans for which entitlement to aid is not recognized, the securities lodged pursuant to Article 23 or 32 shall be forfeited according to the provisions of these articles.
Article 27
In the case of first purchasers who are processors, the agency responsible for control shall verify on the spot, before the final aid is paid, that the quantity of Community-produced beans processed in the undertaking has been previously identified and is equivalent to the quantity that entered the undertaking, taking into account the stock levels at the beginning and end of the period of control. The quantity processed may be determined from the quantites of oil and oilcake obtained, or from the products obtained from other processing procedures as referred to in Article 2 (2).
(1) OJ No L 205, 3. 8. 1985, p. 5.
Article 28
In the case of approved first purchasers who are not processors, the agency responsible for control shall verify on the spot, before the final aid is paid, that the quantity of beans actually delivered to a processor and covered by a declaration of sale or delivery as referred to in Article 9 corresponds to the quantities that entered the undertaking and were identified before leaving, taking into account the stock levels referred to in Article 8 (1) and (2), the sale or delivery declarations referred to in Article 9 and any other pertinent documents or material aspects.
Article 29
In the case referred to in Article 27, beans which have left the undertaking unprocessed shall no longer be eligible for the aid, except in cases of force majeure.
Article 30
1. To enable the exact amount of the aid to be calculated, to meet the conditions laid down in the sixth indent of Article 8 (4) and Article 9 (e), and to facilitate the control operations, the weight of the soya beans harvested in the Community shall be determined, and samples shall be taken, in particular when they are delivered to the first purchaser. In order to fulfil the provisions of Article 3 (2) and to allow controls to be effected, the weight of imported soya beans shall also be determined and samples shall be taken when they enter the undertaking in which they are to be processed.
2. The weight of the beans as referred to in the previous paragraph shall be expressed in kilograms and adjusted using the method set out in Annex I.
3. The taking of samples, the reduction of contract samples to samples for analysis and the determination of impurities and moisture, and any determination of oil content shall be carried out according to the common methods defined in Annexes I to VII to Commission Regulation (EEC) No 1470/68 (1).
4. However, until 31 December 1992, where the operations provided for in paragraph 3 cannot be carried out under the conditions laid down in that paragraph on delivery, those operations may be carried out at that stage according to national methods producing equivalent results.
Member States shall forward to the Commission for approval a short technical description of the abovementioned methods within a period of four months following the publication of this Regulation.
5. When samples are taken on entry into the processing undertaking, standard samples must be set aside for a period of at least two months for placing at the disposal of the agency responsible for control, or a body designated by it. That body shall carry out random tests on a proportion of the samples taken in this way. Furthermore samples may be tested to determine the quality of products after the first processing of the beans in question, to verify that the tests are consistent with those carried out on the samples taken when the beans arrived for processing.
Where, on completion of the tests, the results reveal serious negligence or serious fault, the quantities in question shall not be eligible for aid and approval, and the first purchaser responsible for delivery of the beans shall lose his authorization, or be otherwise excluded from entitlement under this Regulation, where the first purchaser is a processor, for the following marketing year.
CHAPTER 4
Calculation and payment of the aid
Article 31
Without prejudice to the provisions of Article 7, the aid shall be granted only for beans of sound and fair merchantable quality.
Article 32
1. Final payment of the aid by the competent agency shall take place on presentation of the ID part of the certificate and the final overall declaration referred to in Article 8 (3), and:
- where the aid is paid to a processor, after certification by the agency responsible for control that the seed identified in the said certificate has been processed within the period mentioned in Article 21 (1),
- where the aid is paid to an approved first purchaser who is not a processor, after receipt of the declaration of sale or delivery referred to in Article 9,
- in all cases, after proof has been furnished that the condition relating to payment of the minimum price has been fulfilled.
2. The competent agency shall advance the aid once the beans have been identified, provided that a security equal to the amount of the aid in respect of which the advance is to be paid is lodged by the recipient prior to payment of the advance. However, where the first purchaser is not a processor, payment of the advance may, at the request of the competent agency, be made conditional on presentation of the sale or delivery contract.
3. The security, intended to ensure that the processing or incorporation operations on which entitlement to the aid is based are carried out, shall take one of the forms laid down in Article 8 of Commission Regulation (EEC) No 2220/85.
4. The security shall be released once the competent agency of the Member State recognizes, in accordance with Article 27 and 28, the applicant's entitlement to aid in respect of the quantities specified in the application, after a spot check has been carried out at the end of the marketing year. Where entitlement to aid is not recognized in respect of all or some of the quantities specified in the application, the security shall be forfeited in proportion to the quantities in respect of which the conditions for entitlement to the aid have not been fulfilled, with the addition of a penalty applied to the remaining aid.
Article 33
1. The amount of aid to be granted per 100 kilograms of product shall be that indicated on the ID part of the certificate.
However, the amount of aid to be granted if advance fixing takes place shall be equal to the amount applicable on the day on which the application of the AP part of the certificate is lodged and shall be increased or reduced:
- depending on whether the guide price valid during the month in which application is made for the ID part is higher or lower than that valid on the day on which application for the AP part is lodged, by the difference between these two guide prices,
- by the corrective amount referred to in Article 4c of Regulation (EEC) No 2194/85.
2. The definitive amount of aid shall be calculated on the basis of the weight of the beans ascertained at the time the delivery declaration is made out, adjusted in accordance with the method laid down in Annex I, according to the result of the analyses referred to in Article 30.
Article 34
Conversion of the aid into national currency shall be carried out using the agricultural conversion rate obtaining on the date of the beginning of the marketing year in question.
Article 35
Without prejudice to Article 32 (2) and (4), the aid shall be paid within 120 days of the submission of the evidence referred to in Article 32 (1), and completion of the checks referred to in Articles 27 and 28 in particular, which are intended to establish entitlement to the aid.
CHAPTER 5
Intra-Community trade
Article 36
1. Where the approved first purchaser who is not a processor sells or delivers beans to a processor established in another Member State, proof of sale or delivery to a processor shall be considered to be furnished when the T5 control copy, issued and used in accordance with Commission Regulation (EEC) No 2823/87 (1), with all the necessary endorsements, has been presented to the agency responsible for payment of the aid.
The following boxes of the T5 control copy must be completed:
(a) box 103;
(b) box 104 is to be endorsed accordingly and the following statement entered:
'Goods to be put at the disposal of a processor - Article 36 (1) of Regulation (EEC) No 2537/89.'.
2. The endorsement showing the date of delivery to the processor shall be entered in the section headed 'control as to use and/or destination' on the back of the control copy. In addition, the net weight of the beans as recorded on delivery and the moisture and impurity contents must be stated under 'remarks'.
3. Authorities checking the destination of products traded within the Community shall, for the purposes of final payment of the aid, send a copy or photocopy of the T5 control copy to the agency responsible for granting the aid.
4. The final aid shall be paid, and the security referred to in Article 32 (2) shall be released, upon receipt of the T5 control copy referred to in paragraph 3.
CHAPTER 6
Article 37
1. The rate of the aid shall be fixed as often as the market situation requires, in time to be applied at least twice a month, once from the first day of each month.
2. The Commission shall notify the Member States of the rate of aid per 100 kilograms, expressed in ecus, as soon as it is fixed, and in any case before the date from which the rate of aid is to be applied. This shall apply to the rate of aid:
- applicable during the current month,
- applicable for the five subsequent months in application of Article 4c of Regulation (EEC) No 2194/85, subject to the provisions of Article 4d of that Regulation.
Article 38
The corrective amount referred to in Article 4c of Regulation (EEC) No 2194/85 shall be equal to the difference between:
(a) the world market price of soya beans determined in accordance with Articles 39 and 40 of this Regulation, and
(b) the forward price for those beans, determined by applying the same criteria.
If, for one of the months following that in which the request for advance fixing is lodged, no offer and no price can be used for determining the forward price referred to under (b), the corrective amount shall be such as to determine a rate of aid equal to zero.
Article 39
The world market price for soya beans shall be determined twice a month.
This price shall be fixed per 100 kilograms and shall be calculated on the basis of the most favourable offers and quotations for delivery within 30 days.
Article 40
1. When the offers and quotations recorded relate to:
(a) a quality other than the standard quality for which the guide price was fixed, they shall be adjusted by reference to the coefficient of equivalence given in Annex II;
(b) products delivered cif at a frontier crossing point other than Rotterdam, they shall be adjusted by reference to the difference in freight and insurance costs as against products delivered cif Rotterdam;
(c) products delivered cif Rotterdam, they shall be adjusted to take account of unloading and forwarding costs.
2. For the purpose of paragraph 1, only the lowest available costs in respect of loading, freight and insurance shall be taken into account.
Article 41
1. Before the end of the second month of each marketing year and in accordance with the procedure laid down in Article 38 of Council Regulation (EEC) No 136/66/EEC (1), the Commission shall fix for soya beans on the basis of the figures provided by the Member States or obtained otherwise:
- the estimated production referred to in the first subparagraph of Article 3a (3) of Regulation (EEC) No 1491/85 in respect of the current marketing year,
- the actual production referred to in the second subparagraph of Article 3a (3) of Regulation (EEC) No 1491/85 in respect of the preceding marketing year,
and in accordance with paragraph 2:
- the adjustment applying, where appropriate, to the amount of aid for the marketing year in question.
2. The adjustment of the amount of the aid for the marketing year in question, referred to in Article 3a (3) of Regulation (EEC) No 1491/85, shall be based on the algebraic sum:
- of the reduction relating to the marketing year in question, calculated on the basis of the estimated production, in accordance with Article 3a (3) of the abovementioned Regulation and Article 1a of Regulation (EEC) No 2194/85
and
- the carry-over of the reduction from the previous marketing year, positive or negative, resulting from the difference between the reduction which would have been calculated for that year if actual production had been taken into account instead of estimated production, and the reduction calculated on the basis of the estimated production.
3. The amounts of the aid fixed provisionally for a given marketing year shall be adjusted accordingly by the Commission before the adjustment for that year is published in the Official Journal of the European Communities.
4. The Member States shall forward to the Commission, before 15 October, figures relating to:
- areas under and production of soya beans harvested during the preceding marketing year,
- areas under and production of soya beans to be harvested during the current marketing year.
Article 42
1. Producer Member States shall inform the Commission of the names and addresses of the agencies appointed for the purpose of implementing the special measures for soya beans.
2. Producer Member States shall notify to the Commission:
(a) by 30 September of each year at the latest, the number of contracts lodged and the total area of cultivation covered by them;
(b) before the end of each month, the quantities covered by aid applications in the preceding month. This information shall include the total number of AP and ID certificates to which the aid applications refer;
(c) by 30 November at the latest following each marketing year, the quantities for which aid has been granted.
3. The Commission shall forward regularly to the Member States a summary of the information supplied in accordance with the preceding paragraphs.
4. France shall notify the Commission by 31 December and 31 May at the latest of each marketing year of the total area covered by soya-producers' declarations in the French overseas departments.
Article 43
The Member States shall assist each other in the application of the provisions of this Regulation.
Article 44
Each Member State shall forward to the Commission, within a period of five months from the end of the marketing year in question, a quantitative record showing the total volume of beans imported from third countries, the quantity of those beans utilized in the Member State and the quantities re-exported without further processing, specifying the country of destination.
CHAPTER 7
Special and final provisions
Article 45
1. The rate of aid to be granted for soya beans harvested in the French overseas departments shall be:
- during the first six months of a given year, that applicable with effect from 16 March of that year,
- during the second six months of a given year, that applicable with effect from 16 August of that year.
2. All producers of soya beans in the French overseas departments shall lodge with the competent authorities, for each harvest and by dates to be set by France, declarations of the areas sown with soya and the crop harvested.
3. France shall notify the Commission of soya bean yields recorded in the various overseas departments, differentiated according to method of cultivation used, before 15 May and 15 October each year.
Article 46
1. Regulation (EEC) No 2329/85 is hereby repealed.
2. However, the following transitional provisions shall be applicable for the 1989/90 marketing year:
- contracts already lodged under the arrangements provided for in Article 7 of Regulation (EEC) No 2329/85 at 15 August 1989 shall remain valid,
- approvals granted by Member States to first purchasers who are not processors, in accordance with Article 5 of Regulation (EEC) No 2329/85 shall remain valid. However, where the approved first purchasers do not fulfil the new conditions for approval laid down in this Regulation and in particular Article 4 thereof, they shall be placed under special surveillance by the competent agency and by the agency responsible for control in the Member State concerned,
- the Member States shall notify the measures adopted for the application of the new control provisions instituted by Article 26 (1) and (4) and by Article 30 (5) within a period of three months from the entry into force of this Regulation. The obligation to carry out the said controls systematically is only applicable for the various operations laid down insofar as the measures are compatible with the necessary technical and administrative time limits.
Article 47
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 September 1989.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 August 1989. | [
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COMMISSION REGULATION (EEC) No 2376/91 of 5 August 1991 amending Regulation (EEC) No 1413/91 on the procedure for granting the premium for leaf tobacco
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 727/70 of 21 April 1970 on the common organization of the market in raw tobacco (1), as last amended by Regulation (EEC) No 1737/91 (2), and in particular the first subparagraph of Article 3 (3) thereof,
Whereas Commission Regulation (EEC) No 1413/91 (3) authorizes the Member States to set deadlines for the conclusion and registering of declarations and European cultivation contracts which are prior to the date set in Article 2b of Commission Regulation (EEC) No 1726/70 (4); whereas Article 2 of Regulation (EEC) No 1413/91 sets special conditions for the application of the authorization for the 1991 harvest; whereas, as a result of a delay in publication of the Regulation, the above Article 2 has become null and void; whereas, therefore, it should be deleted;
Whereas Regulation (EEC) No 1413/91 stipulates that the European cultivation contract does not cover any tobacco produced in excess of the yield laid down for the variety concerned in the description given in the Annex to Commission Regulation (EEC) No 2501/87 (5), as last amended by Regulation (EEC) No 838/91 (6); whereas, as a result of the judgment handed down by the Court of Justice in case C 368/89 (Crispoltoni) of 11 July 1991, application of this rule with effect from the 1991 harvest entails the risk of legal objections; whereas, therefore, provision should be made for the rule to be applicable with effect from the 1992 harvest;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Raw Tobacco,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 1413/91 is hereby amended as follows:
1. Article 2 is deleted.
2. The second subparagraph of Article 3 is replaced by the following:
'It shall apply from the 1992 harvest.'
Article 2
This Regulation shall enter into force on the seventh day after its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 August 1991. | [
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*****
COMMISSION REGULATION (EEC) No 1596/86
of 26 May 1986
fixing the prices to be used for calculating the value of agricultural products in intervention storage in Spain and Portugal at 1 March 1986 in the accounts referred to in Article 4 of Regulation (EEC) No 1883/78
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Act of Accession of Spain and Portugal,
Having regard to Council Regulation (EEC) No 1883/78 of 2 August 1978 laying down general rules for the financing of interventions by the European Agricultural Guidance and Guarantee Fund, Guarantee Section (1), as last amended by Regulation (EEC) No 1334/86 (2), and in particular Article 9 thereof,
Whereas Council Regulation (EEC) No 3247/81 (3) provides that accounts are to be drawn up for each product for which an intervention price has been fixed and that the value of products bought in during the year corresponds to the intervention prices fixed in the various regulations on the common organization of the markets;
Whereas in the case of the expenditure to be recorded in Spain and Portugal, financing of expenditure commences on 1 March 1986 by virtue of Article 394 of the Act of Accession; whereas the value of the agricultural products in public intervention storage in Spain should be determined; whereas, in accordance with the principle laid down in Article 68 of the Act of Accession, the intervention prices applicable in that country on that date should be used for that purpose;
Whereas in the case of Portugal, in accordance with the system of transition by stages provided for in the Act of Accession, similar rules are required at present for olive oil only;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the EAGGF Committee,
HAS ADOPTED THIS REGULATION:
Article 1
For the initial drawing-up by the intervention agencies in Spain and Portugal of the accounts referred to in Article 4 of Regulation (EEC) No 1883/78, the value of the stocks covered by the system of Community financing to be entered in line 2 of Table A in Annex III to Commission Regulation (EEC) No 3184/83 (4) shall be calculated for each product by multiplying the quantity of the normal stocks in public intervention storage by the intervention price fixed for that product pursuant to the first subparagraph of Article 68 and the first subparagraph of Article 236 of the Act of Accession applicable at 1 March 1986.
The intervention prices t be used shall be those listed in the Annex.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply with effect from 1 March 1986.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 May 1986. | [
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COMMISSION DECISION of 20 January 1994 establishing an initial list of declining industrial areas concerned by Objective 2 as defined by Council Regulation (EEC) No 2052/88 (94/169/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (1), as amended by Regulation (EEC) No 2081/93 (2), and in particular Article 9 (3) thereof,
Whereas Regulation (EEC) No 2052/88 provides for, in particular in Article 12 (1), a second programming period from 1994 to 1999;
Whereas Article 9 (3) of the aformementioned Regulation states that the Commission shall, in accordance with the procedure laid down in Article 17 and on the basis of the criteria laid down in Article 9 (2), establish an initial list for three years of the declining industrial areas concerned by Objective 2, taking into account the national priorities and situations, and in close consultation with the Member State concerned;
Whereas Article 9 (1) of the same Regulation states that the declining industrial areas concerned by Objective 2 shall comprise regions, frontier regions or parts of regions (including employment areas and urban communities);
Whereas Article 9 (2) specifies the criteria to be used to define the declining industrial areas concerned by Objective 2;
Whereas Article 9 (4) states that in establishing the list, the Commission and the Member States shall seek to ensure that assistance is genuinely concentrated on the areas most seriously affected, at the most appropriate geographical level, taking into account the particular situation of the areas concerned;
Whereas Article 9 (5) states that West-Berlin shall be eligible for aid under Objective 2 for the first three-year period referred to in paragraph 6 of the same Article;
Whereas Article 17 of the aforementioned Regulation specifies the procedure to be followed in respect of Committees to assist the Commission in implementing the Regulation;
Whereas Article 27 of Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European investment Bank and the other existing financial instruments (3), as amended by Regulation (EEC) No 2082/93 (4), sets up an Advisory Committee on the Development and Conversion of Regions, and states that the said Committee shall deliver an opinion on the drawing-up of the list of areas eligible in connection with Objective 2;
Whereas that Committee has delivered a favourable opinion,
HAS ADOPTED THIS DECISION:
Article 1
The initial list of declining industrial areas concerned by Objective 2 and covering the period from 1994 to 1996, established pursuant to Article 9 (3) of Regulation (EEC) No 2052/88, is set out in the Annex.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 20 January 1994. | [
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Commission Decision
of 30 March 2004
adapting Decision 2001/672/EC as regards summer grazing in certain areas of Slovenia by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia
(notified under document number C(2004) 1022)
(Text with EEA relevance)
(2004/318/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty of Accession to the European Union of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic, and in particular Article 2(3) thereof,
Having regard to the Act of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, and in particular Article 57(2) thereof,
Whereas:
(1) For certain acts adopted by the Commission, which remain valid beyond 1 May 2004, and require adaptation by reason of accession, the necessary adaptations were not provided for in the Act of Accession, in particular in its Annex II. Those adaptations need to be adopted before accession so as to be applicable as from accession.
(2) Slovenia has requested to apply from the date of accession the special rules applicable to movements of bovine animals when put out to summer grazing in mountain areas as laid down in Commission Decision 2001/672/EC(1).
(3) It is justified to take account of Slovenia's request and to amend Decision 2001/672/EC accordingly,
HAS ADOPTED THIS DECISION:
Article 1
In the Annex to Decision 2001/672/EC, the text in the Annex to this Decision is added.
Article 2
This Decision shall apply, subject to, and as from the date of, the entry into force of the Treaty of Accession of the Czech Republic, 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.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 30 March 2004. | [
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COMMISSION DECISION
of 1 August 2007
amending Decision 2006/415/EC concerning certain protection measures in relation to highly pathogenic avian influenza of the subtype H5N1 in poultry in the Community
(notified under document number C(2007) 3696)
(Text with EEA relevance)
(2007/556/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (1), and in particular Article 9(4) thereof,
Having regard to Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (2), and in particular Article 10(4) thereof,
Having regard to Council Directive 2005/94/EC of 20 December 2005 on Community measures for the control of avian influenza and repealing Directive 92/40/EEC (3), and in particular Article 63(3) thereof,
Whereas:
(1)
Commission Decision 2006/415/EC of 14 June 2006 concerning certain protection measures in relation to highly pathogenic avian influenza of the subtype H5N1 in poultry in the Community and repealing Decision 2006/135/EC (4) lays down certain protection measures to be applied in order to prevent the spread of that disease, including the establishment of areas A and B following a suspected or confirmed outbreak of the disease.
(2)
Following an outbreak of highly pathogenic avian influenza of H5N1 subtype in the Czech Republic the Commission has adopted Decision 2007/434/EC of 21 June 2007 amending Decision 2006/415/EC concerning certain protection measures in relation to highly pathogenic avian influenza of the subtype H5 in poultry in the Czech Republic (5).
(3)
In the following days the Commission has adopted Decision 2007/454/EC of 29 June 2007 concerning protection measures in relation to highly pathogenic avian influenza of subtype H5N1 in poultry in the Community (6) to confirm the interim protective measures provided for in Decision 2007/434/EC as regards areas A and B in the Czech Republic and the duration of that regionalisation.
(4)
Following an outbreak of highly pathogenic avian influenza of H5N1 subtype in Germany the Commission has adopted Decision 2007/483/EC of 9 July 2007 amending Decision 2006/415/EC concerning certain protection measures in relation to highly pathogenic avian influenza of the subtype H5 in poultry in Germany (7).
(5)
By Commission Decision 2007/496/EC of 13 July amending Decision 2006/415/EC concerning certain protection measures in relation to highly pathogenic avian influenza of the subtype H5N1 in poultry in the Community (8) the interim protective measures provided for in Decision 2007/483/EC as regards areas A and B in Germany were confirmed. In addition, the delineation of the restricted areas and the duration of the measures applied by the Czech Republic were modified to take into account a change in the epidemiological situation in that Member State.
(6)
On 12 July 2007 the Czech Republic has reported the confirmation of two further outbreaks in poultry holdings located within area A which requires the application of the protection measures as regards the Czech Republic to be prolonged. Moreover, for reasons of clarity of Community legislation it appears appropriate to list areas under restriction in area A in that Member State in an alphabetical order without distinguishing between the protection and the surveillance zones.
(7)
Decision 2006/415/EC should therefore be amended accordingly.
(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 Annex to Decision 2006/415/EC is replaced by the text in the Annex to this Decision.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 1 August 2007. | [
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COMMISSION DECISION of 10 June 1997 setting up a Scientific Steering Committee (97/404/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Whereas sound scientific advice is an essential basis for Community rules on consumer health, including matters on consumer health in its strictest sense, but also on animal health and welfare, plant health and environmental health;
Whereas scientific advice on consumer health matters is currently provided by six scientific committees set up by the Commission and addressing the topics of food, animal nutrition, cosmetology, pesticides, toxicity and ecotoxicity, and veterinary matters;
Whereas several issues relating to consumer health are of a multidisciplinary nature and require input from various scientific committees which would benefit from an effective coordination;
Whereas the Commission must be able to obtain sound and timely scientific advice;
Whereas scientific advice on matters relating to consumer health must, in the interests of consumers and industry, be based on the principles of excellence, independence and transparency,
HAS ADOPTED THIS DECISION:
Article 1
A Scientific Steering Committee (hereinafter called 'SSC`) in the field of consumer health and food safety is hereby established.
Article 2
1. The SSC shall assist the Commission to obtain the best scientific advice available on matters relating to consumer health.
2. The SSC shall coordinate the work of the scientific committees set up by the Commission to address matters of consumer health, in particular:
(a) the SSC shall evaluate and monitor the working procedures used by the scientific committees and will harmonize them when necessary;
(b) for matters which require consultation of two or more scientific committees, the SSC shall identify those scientific committees which should be involved, taking account of compulsory consultation requirements, shall consider opinions issued by the different committees and may, in case of substantial differences of opinions, provide an overall view;
(c) when Community measures are based on the evaluation carried out by scientists from organizations in the Member States, the SSC shall assist the Commission, on the latter's request, in assessing if scientific advice at Community level is needed, and if so, in determining which scientific committee is to provide it.
3. The SSC shall, in the area of consumer health:
(a) deliver scientific advice only on matters which are not covered by the mandates of the other scientific committees. It shall prepare this advice following a request from the Commission and relying on the most appropriate scientific expertise;
(b) specifically deliver scientific advice on multidisciplinary aspects of transmissible spongiform encephalopathies, including bovine spongiform encephalopathy. To this end it shall create an ad hoc group which shall be chaired by a member of the SSC and may include external experts;
(c) assist the Commission with the identification of those areas where compulsory consultation of the scientific committees could be appropriate;
(d) arrange for the review of existing and newly developed risk assessment procedures and, where appropriate, propose the development of new risk assessment procedures relating to areas such as, for example, food-borne diseases and the transmissibility of animal diseases to man;
(e) draw the attention of the Commission to any specific or emerging consumer health problem.
4. Those members of the SSC who are not chairpersons of scientific committees shall contribute to the selection of the members of the scientific committees by advising the Commission as to the excellence and independence of the candidates.
5. The Commission may, when requesting an output from the SSC, ask for a deadline for its delivery to be adhered to.
Article 3
1. The SSC shall be composed of eight scientific experts not being members of any other scientific committee, and the chairpersons of the scientific committees. The latter may, should they not be able to participate in a meeting of the SSC, be replaced by one of the vice-chairpersons of their scientific committee.
2. The full SSC will elect by simple majority one chairperson and two vice-chairpersons from amongst its members who are not chairpersons of scientific committees.
3. The members of the SSC shall be scientific experts in one or more fields of consumer health, collectively covering the widest possible range of scientific disciplines relating to this subject.
4. The members of the SSC who are not chairpersons of scientific committees, shall be nominated by the Commission following publication in the Official Journal of the European Communities of a call for expressions of interest, together with the selection criteria and a description of the selection procedure. The selection procedure shall identify in a transparent manner the most suitable candidates for working in the SSC. From these the Commission shall nominate the members of the SSC not being chairpersons of scientific committees. The names of the members of the SSC shall be published in the Official Journal.
5. The term of office of members of the SSC not being chairpersons of scientific committees shall be three years. Those members of the SSC may not serve more than two consecutive terms of office. After the period of three years they shall remain office until their replacement or the renewal of their mandate.
6. In the event that a member of the SSC not being a chairperson of a scientific committee is no longer able to contribute effectively to the work of the SSC, or in the case of his/her voluntary resignation, the Commission shall nominate an appropriate replacement for the remaining term of office, drawn from the most suitable candidates identified in accordance with paragraph 4.
7. Members of the SSC, and external experts invited to contribute to its work, shall receive an indemnity for the service they provide to the Commission in addition to the reimbursement of travel and subsistence expenses, in accordance with the rules laid down by the Commission.
Article 4
1. Members of the SSC shall act independently of external influences in their capacity as members of the SSC.
2. Members of the SSC shall inform the Commission annually of any interests which might be perceived as prejudicial to their independence.
3. Members of the SSC and external experts shall declare specific interests which might be perceived as prejudicial to their independence with regard to the work of the SSC, its working groups or its ad hoc group.
Article 5
The SSC may create specific working groups with clearly defined mandates. Each working group shall be chaired by a member of the committee and may include external experts. The working groups shall report to the SSC.
Article 6
1. The SSC shall adopt its rules of procedure which shall be made publicly available.
2. The rules shall ensure that:
(a) the tasks of the SSC are completed in a manner which satisfies the principles of excellence, independence and transparency, while respecting legitimate requests for commercial confidentiality;
(b) the coordination of the work of the scientific committees is carried out in an efficient and flexible manner, in particular by a timely reporting of the chairpersons on the workplans of the scientific committees;
(c) the SSC provides opinions and other scientific advice in good time;
(d) the SSC may appoint rapporteurs for the preparation of background information and documentation and the drafting of its opinions;
(e) the SSC verifies that appointed rapporteurs can carry out their specific tasks as independently as possible from all external influences.
Article 7
The agenda, minutes and opinions of the SSC shall be made publicly available without undue delay and with regard being had to the need to respect commercial confidentiality. Minority views shall always be included and shall be attributed to Members only at their request.
Article 8
Without prejudice to Article 214 of the Treaty, members shall be obliged not to divulge information which they acquire as a result of the work of the SSC or one of its working groups when they are informed that this information is subject to a request for confidentiality.
Article 9
The Commission shall provide the secretariat for the SSC, its working groups and its ad hoc group.
Done at Brussels, 10 June 1997. | [
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COMMISSION REGULATION (EC) No 2025/2005
of 13 December 2005
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 14 December 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 December 2005. | [
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COUNCIL DECISION of 9 August 1996 setting the date on which Joint Action 96/442/CFSP adopted by the Council on 15 July 1996 shall take effect (96/508/CFSP)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular Article J.3 thereof,
Having regard to the general guidelines given by the European Council meeting in Corfu on 24 and 25 June 1994,
Whereas, with a view to a continued European Union presence to consolidate the achievements of the European Union Administration of Mostar (EUAM) after its expiry on 22 July 1996, the Council adopted on 15 July 1996 Joint Action 96/442/CFSP (1) on the nomination of a Special Envoy of the EU in the city of Mostar, to take effect once the conditions set out in Article 10 were fulfilled;
Whereas, since those conditions were not fulfilled, on 26 July 1996 the Council adopted Joint Action 96/476/CFSP (2) on interim arrangements, which expired on 4 August 1996;
Whereas the conditions set out in Article 10 of Joint Action 96/442/CFSP have now been fulfilled,
HAS DECIDED AS FOLLOWS:
Article 1
1. The European Union notes that the conditions set out in Article 10 of Joint Action 96/442/CFSP have been fulfilled.
2. Consequently, Joint Action 96/442/CFSP shall take effect as from 5 August 1996.
Article 2
This Decision shall enter into force on the date of its adoption. It shall be published in the Official Journal.
Done at Brussels, 9 August 1996. | [
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DECISION OF THE EUROPEAN CENTRAL BANK
of 13 March 2006
amending Decision ECB/2002/11 on the annual accounts of the European Central Bank
(ECB/2006/3)
(2006/248/EC)
THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,
Having regard to the Statute of the European System of Central Banks and of the European Central Bank, and in particular to Article 26.2 thereof,
Whereas:
For reasons of increased transparency, it is necessary to clarify the presentation of the European Central Bank (ECB) pension scheme in the ECB’s accounts. Annex II to Decision ECB/2002/11 of 5 December 2002 on the annual accounts of the European Central Bank (1) should be amended to reflect the inclusion of this item on the liability side of the ECB’s balance sheet under item 12 ‘Other Liabilities’,
HAS DECIDED AS FOLLOWS:
Article 1
Amendments
Annex II of Decision ECB/2002/11 is amended in accordance with the Annex to this Decision.
Article 2
Entry into force
This Decision shall enter into force on the day of its adoption.
Done at Frankfurt am Main, 13 March 2006. | [
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COUNCIL DECISION of 24 July 1989 concerning the provisional application of the Agreed Minute amending the Agreement between the European Economic Community and the Islamic Republic of Pakistan on trade in textile products (89/670/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas, pending completion of the procedures necessary for its conclusion, the Agreement between the European Economic Community and the Islamic Republic of Pakistan on trade in textile products, initialled on 12 September 1986, has been applied provisionally since 1 January 1987 in accordance with Decision 87/457/EEC (1) insofar as the Community is concerned;
Whereas that Agreement provides for the possibility of re-examining, in the light of recent trade developments, the quantitative adjustments to be made to the quotas for certain categories to allow for the introduction of the harmonized system;
Whereas, following consultations between the Community and the Islamic Republic of Pakistan, an Agreed Minute amending the quota for category 4 laid down in the Agreement was initialled on 20 April 1989;
Whereas, pending completion of the procedures necessary for the conclusion of the Agreement and the Agreed Minute, the Agreed Minute should be applied provisionally with effect from 1 January 1989, provided it is applied likewise by the Islamic Republic of Pakistan,
HAS DECIDED AS FOLLOWS:
Article 1
Pending completion of the procedures necessary for its conclusion, the Agreed Minute amending the Agreement between the European Economic Community and the Islamic Republic of Pakistan on trade in textile products shall be applied provisionally by the Community with effect from 1 January 1989, provided it is applied likewise by the Islamic Republic of Pakistan.
The text of the Agreed Minute is attached to this Decision.
Article 2
The Commission is requested to seek the agreement of the Government of the Islamic Republic of Pakistan on the provisional application of the Agreed Minute referred to in Article 1 and to notify the Council thereof.
Done at Brussels, 24 July 1989. | [
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*****
COMMISSION DECISION
of 12 January 1988
approving a programme for the first-stage marketing of the cereals sector in Portugal pursuant to Council Regulation (EEC) No 355/77
(Only the Portuguese text is authentic)
(88/102/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 355/77 of 15 February 1977 on common measures to improve the conditions under which agricultural and fishery products are processed and marketed (1), as last amended by Regulation (EEC) No 560/87 (2), and in particular Article 5 thereof,
Whereas on 20 July 1987 the Portuguese Government forwarded a programme concerning the first stage of the marketing of cereals, and supplied additional information on 11 November 1987;
Whereas the aims of this programme are to provide appropriate storage facilities to rationalize and modernize the cereals sector at the first stage of marketing so as to make the sector more competitive and aid value to its output; whereas it therefore constitutes a programme within the meaning of Article 2 of Regulation (EEC) No 355/77;
Whereas, although this programme plans for investments in the rice sector, the Member State has also forwarded another specific programme for the rice sector; whereas therefore, this product must be excluded from the scope of this Decision;
Whereas sound financial management does not allow for the funding of investments used for intervention purposes;
Whereas this programme contains sufficient information as prescribed by Article 3 of Regulation (EEC) No 355/77 to show that the aims set out in Article 1 of that Regulation can be achieved in the cereals sector in Portugal; whereas the estimated time required for implementation of the programme does not exceed the period mentioned in Article 3 (1) (g) of that Regulation;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Structures,
HAS ADOPTED THIS DECISION:
Article 1
1. The programme for the first-stage marketing of cereals forawarded by the Portuguese Government on 20 July 1987 and for which additional information was provided on 11 November 1987 pursuant to Regulation (EEC) No 355/77 is approved, except for investments relating to rice.
2. The approval does not cover investments for intervention purposes.
Article 2
This Decision is addressed to the Portuguese Republic.
Done at Brussels, 12 January 1988. | [
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COUNCIL REGULATION (EEC) No 2991/81 of 19 October 1981 amending Regulation (EEC) No 458/80 on collective projects for the restructuring of vineyards
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 43 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas it follows from Articles 2 and 5 of Regulation (EEC) No 458/80 (4), that the implementation of a restructuring project involves the replanting and, in appropriate cases, within the limits laid down, the new planting of the whole wine-growing area covered by the project ; whereas, however, in certain cases where the existing structural situation so permits, the purpose of a restructuring operation may also be achieved by the replanting or new planting of only one part of the wine-growing area ; whereas the provisions in question should be amended to allow for this possibility, so that the measure may be implemented more effectively ; whereas, for the same reasons, there should be greater flexibility in the conditions to be met by projects affecting vineyards intended for the production of table wines and situated in mountain or hill areas within the meaning of Council Directive 75/268/EEC of 28 April 1975 on mountain and hill farming and farming in certain less-favoured areas (5), as last amended by Directive 80/666/EEC (6);
Whereas, in order to accelerate the restructuring of vineyards, a time limit for carrying out restructuring projects should be laid down while providing for the possibility of derogation to obviate cases of undue hardship;
Whereas the adjustments necessitated by the accession of Greece to the Communities should be made,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 458/80 shall be amended as follows: 1. Article 2 shall be replaced by the following:
"Article 2
1. For the purposes of this Regulation, "a collective project for the restructuring of vineyards" means any project involving the replanting of vines undertaken by growers under a binding agreement concluded between them.
However, the project may also include new planting if it is technically essential for improving the effectiveness of the restructuring measures and if it conforms with Articles 30, 30b, 30c, and 30e of Regulation (EEC) No 337/79.
This new planting may not exceed: - 10 % of the area of replanting and new planting intended for the production of quality wines psr,
- 10 % of the area of replanting and new planting intended for the production of table wines.
2. The agreements between growers referred to in paragraph 1 shall lay down the conditions governing the planting of vines and those governing associated operations, providing in particular for rationalization of work and of the use of machinery.
3. A collective restructuring project must cover: (a) in the case of vineyards intended for the production of: - quality wines psr,
- table wines, and situated in mountain areas covered by Article 3 (3) of Directive 75/268/EEC,
a sufficient area of restructured vineyard to ensure that the objectives of Article 3 are fulfilled;
(1) OJ No C 98, 30.4.1981, p. 3. (2) Opinion delivered on 16 October 1981 (not yet published in the Official Journal). (3) OJ No C 189, 30.7.1981, p. 37. (4) OJ No L 57, 29.2.1980, p. 27. (5) OJ No L 128, 19.5.1975, p. 1. (6) OJ No L 180, 14.7.1980, p. 34. (b) in the case of other vineyards intended for the production of table wines, an area of not less than 100 hectares of vineyard in accordance with a restructuring plan established for the whole of the restructured vineyard, made up of unbroken wine-growing plots which are in principle not less than two hectares each.
However, where natural growing conditions relevant to the project make it impossible to have unbroken plots of the minimum size of two hectares, that part of the wine-growing area which does not comply with this criterion must not exceed 30 % of the restructured wine-growing area.
4. For the purposes of this Regulation "replanting or new planting" means any planting of vines undertaken in accordance with the corresponding definition given in Annex IVa to Regulation (EEC) No 337/79.
5. The provisions of paragraphs 1 and 4 concerning the planting of vines also apply to restructuring operations carried out within the context of Directive 78/627/EEC."
2. The following subparagraph shall be added to Article 4:
"Replanting or new planting operations must be completed within 10 years following the date of approval thereof by the Commission. However, to obviate undue hardship in individual cases, the Commission may allow this deadline to be postponed in accordance with the procedure laid down in Article 12."
3. Article 5 shall be replaced by the following:
"Article 5
1. Aid in respect of the restructuring of vineyards shall be granted in the form of a premium per hectare of vineyard replanted or newly-planted.
2. The Member State concerned shall fix the amount of the premium at between 2 418 and 3 022 ECU per hectare of replanted or newlyplanted vineyard on the basis of the structural situation and the cost of the work involved in restructuring the vineyard.
However, to take account of special situations, Member States may exceed the upper limit referred to in the first subparagraph.
In the case of new planting, the amount eligible may not exceed 2 418 ECU per hectare of vineyard."
4. Article 8 shall be replaced by the following:
"Article 8
1. With the exception of the extra premium granted pursuant to the second subparagraph of Article 5 (2), expenditure incurred by the Member States under the measure provided for in this Regulation in connection with projects which have been approved in accordance with Article 7 shall be eligible for financing by the Guidance Section of the Fund, up to a limit of 240 600 hectares of newlyplanted or replanted vineyard.
2. The Guidance Section of the Fund shall refund to the Member States 30 % of the eligible expenditure."
5. In Article 9 (2), the expression "175 77 million European units of account" shall be replaced by the expression "188 79 million ECU".
6. The first subparagraph of Article 11 (1) shall be replaced by the following:
"1. Without prejudice to Article 8 of Regulation (EEC) No 729/70, the Member States shall take, in accordance with their national laws, regulations and administrative provisions, the necessary measures to recover the amounts paid in cases where the conditions referred to in Article 2 have not been respected."
7. In Article 12 (2) the expression "41 votes" shall be replaced by "45 votes".
8. In Article 13 (1) the third indent shall be replaced by the following:
"- this Regulation and Directive 78/627/EEC, for the execution of restructuring projects under collective operations."
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 September 1980, apart from Article 1, point 7, which shall apply from 1 January 1981.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 19 October 1981. | [
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COMMISSION REGULATION (EC) No 465/2007
of 26 April 2007
fixing the export refunds on syrups and certain other sugar products exported without further processing
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the market in the sugar sector (1), and in particular the second subparagraph of Article 33(2) thereof,
Whereas:
(1)
Article 32 of Regulation (EC) No 318/2006 provides that the difference between prices on the world market for the products listed in Article 1(1)(c), (d) and (g) of that Regulation and prices for those products on the Community market may be covered by an export refund.
(2)
Given the present situation on the sugar market, export refunds should therefore be fixed in accordance with the rules and certain criteria provided for in Articles 32 and 33 of Regulation (EC) No 318/2006.
(3)
The first subparagraph of Article 33(2) of Regulation (EC) No 318/2006 provides that the world market situation or the specific requirements of certain markets may make it necessary to vary the refund according to destination.
(4)
Refunds should be granted only on products that are allowed to move freely in the Community and that comply with the requirements of Commission Regulation (EC) No 951/2006 of 30 June 2006 laying down detailed rules for the implementation of Regulation (EC) No 318/2006 as regards trade with third countries in the sugar sector (2).
(5)
Export refunds may be set to cover the competitive gap between Community and third country's exports. Community exports to certain close destinations and to third countries granting Community products a preferential import treatment are currently in a particular favourable competitive position. Therefore, refunds for exports to those destinations should be abolished.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
1. Export refunds as provided for in Article 32 of Regulation (EC) No 318/2006 shall be granted on the products and for the amounts set out in the Annex to this Regulation subject to the conditions provided for in paragraph 2 of this Article.
2. To be eligible for a refund under paragraph 1 products must meet the relevant requirements laid down in Articles 3 and 4 of Regulation (EC) No 951/2006.
Article 2
This Regulation shall enter into force on 27 April 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 April 2007. | [
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COMMISSION DECISION of 12 January 1996 authorizing Sweden to maintain its national measures as regards transmissible gastroenteritis in application of Article 10 (4) of Council Directive 64/432/EEC (Text with EEA relevance) (96/95/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 64/432/EEC of 26 June 1964 on animal health problems affecting intra-Community trade in bovine animals and swine (1), as last amended by Council Directive 95/25/EC (2), and in particular Article 10 (4) thereof,
Whereas Sweden considers that its territory is free from a number of animal diseases and has submitted an application for additional trade guarantees to the Commission; whereas the applications have been examined by the Commission; whereas a more detailed examination is necessary in the case of the application relating to transmissible gastroenteritis;
Whereas it is necessary to extend the special measures which apply to trade in pigs and hatching eggs to Sweden while this examination is being carried out;
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
Sweden is authorized to maintain its national measures relating to transmissible gastroenteritis until 31 December 1996.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 12 January 1996. | [
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COUNCIL DIRECTIVE
of 24 June 1988
for the implementation of Article 67 of the Treaty
(88/361/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 69 and 70(1) thereof,
Having regard to the proposal from the Commission, submitted following consultation with the Monetary Committee (1),
Having regard to the opinion of the European Parliament (2),
Whereas Article 8 a of the Treaty stipulates that the internal market shall comprise an area without internal frontiers in which the free movement of capital is ensured, without prejudice to the other provisions of the Treaty;
Whereas Member States should be able to take the requisite measures to regulate bank liquidity; whereas these measures should be restricted to this purpose;
Whereas Member States should, if necessary, be able to take measures to restrict, temporarily and within the framework of appropriate Community procedures, short-term capital movements which, even where there is no appreciable divergence in economic fundamentals, might seriously disrupt the conduct of their monetary and exchange-rate policies;
Whereas, in the interests of transparency, it is advisable to indicate the scope, in accordance with the arrangements laid down in this Directive, of the transitional measures adopted for the benefit of the Kingdom of Spain and the Portuguese Republic by the 1985 Act of Accession in the field of capital movements;
Whereas the Kingdom of Spain and the Portuguese Republic may, under the terms of Articles 61 to 66 and 222 to 232 respectively of the 1985 Act of Accession, postpone the liberalization of certain capital movements in derogation from the obligations set out in the First Council Directive of 11 May 1960 for the implementation of Article 67 of the Treaty (3), as last amended by Directive 86/566/EEC (4); whereas Directive 86/566/EEC also provides for transitional arrangements to be applied for the benefit of those two Member States in respect of their obligations to liberalize capital movements; whereas it is appropriate for those two Member States to be able to postpone the application of the new liberalization obligations resulting from this Directive;
Whereas the Hellenic Republic and Ireland are faced, albeit to differing degrees, with difficult balance-of-payments situations and high levels of external indebtedness; whereas the immediate and complete liberalization of capital movements by those two Member States would make it more difficult for them to continue to apply the measures they have taken to improve their external positions and to reinforce the capacity of their financial systems to adapt to the requirements of an integrated financial market in the Community; whereas it is appropriate, in accordance with Article 8c of the Treaty, to grant to those two Member States, in the light of their specific circumstances, further time in which to comply with the obligations arising from this Directive;
Whereas, since the full liberalization of capital movements could in some Member States, and especially in border areas, contribute to difficulties in the market for secondary residences; whereas existing national legislation regulating these purchases should not be affected by the entry into effect of this Directive;
Whereas advantage should be taken of the period adopted for bringing this Directive into effect in order to enable the Commission to submit proposals designed to eliminate or reduce risks of distortion, tax evasion and tax avoidance resulting from the diversity of national systems for taxation and to permit the Council to take a position on such proposals;
Whereas, in accordance with Article 70 (1) of the Treaty, the Community shall endeavour to attain the highest possible degree of liberalization in respect of the movement of capital between its residents and those of third countries;
Whereas large-scale short-term capital movements to or from third countries may seriously disturb the monetary or financial situation of Member States or cause serious stresses on the exchange markets; whereas such developments may prove harmful for the cohesion of the European Monetary System, for the smooth operation of the internal market and for the progressive achievement of economic and monetary union; whereas it is therefore appropriate to create the requisite conditions for concerted action by Member States should this prove necessary;
Whereas this Directive replaces Council Directive 72/156/EEC of 21 March 1972 on regulating international capital flows and neutralizing their undesirable effects on domestic liquidity (5); whereas Directive 72/156/EEC should accordingly be repealed,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. Without prejudice to the following provisions, Member States shall abolish restrictions on movements of capital taking place between persons resident in Member States. To facilitate application of this Directive, capital movements shall be classified in accordance with the Nomenclature in Annex I.
2. Transfers in respect of capital movements shall be made on the same exchange rate conditions as those governing payments relating to current transactions.
Article 2
Member States shall notify the Committee of Governors of the Central Banks, the Monetary Committee and the Commission, by the date of their entry into force at the latest, of measures to regulate bank liquidity which have a specific impact on capital transactions carried out by credit institutions with non-residents.
Such measures shall be confined to what is necessary for the purposes of domestic monetary regulation. The Monetary Committee and the Committee of Governors of the Central Banks shall provide the Commission with opinions on this subject.
Article 3
1. Where short-term capital movements of exceptional magnitude impose severe strains on foreign-exchange markets and lead to serious disturbances in the conduct of a Member State's monetary and exchange rate policies, being reflected in particular in substantial variations in domestic liquidity, the Commission may, after consulting the Monetary Committee and the Committee of Governors of the Central Banks, authorize that Member State to take, in respect of the capital movements listed in Annex II, protective measures the conditions and details of which the Commission shall determine.
2. The Member State concerned may itself take the protective measures referred to above, on grounds of urgency, should these measures be necessary. The Commission and the other Member States shall be informed of such measures by the date of their entry into force at the latest. The Commission, after consulting the Monetary Committee and the Committee of Governors of the Central Banks, shall decide whether the Member State concerned may continue to apply these measures or whether it should amend or abolish them.
3. The decisions taken by the Commission under paragraphs 1 and 2 may be revoked or amended by the Council acting by a qualified majority.
4. The period of application of protective measures taken pursuant to this Article shall not exceed six months.
5. Before 31 December 1992, the Council shall examine, on the basis of a report from the Commission, after delivery of an opinion by the Monetary Committee and the Committee of Governors of the Central Banks, whether the provisions of this Article remain appropriate, as regards their principle and details, to the requirements which they were intended to satisfy.
Article 4
This Directive shall be without prejudice to the right of Member States to take all requisite measures to prevent infringements of their laws and regulations, inter alia in the field of taxation and prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information.
Application of those measures and procedures may not have the effect of impeding capital movements carried out in accordance with Community law.
Article 5
For the Kingdom of Spain and the Portuguese Republic, the scope, in accordance with the Nomenclature of capital movements contained in Annex I, of the provisions of the 1985 Act of Accession in the field of capital movements shall be as indicated in Annex III.
Article 6
1. Member States shall take the measures necessary to comply with this Directive no later than 1 July 1990. They shall forthwith inform the Commission thereof. They shall also make known, by the date of their entry into force at the latest, any new measure or any amendment made to the provisions governing the capital movements listed in Annex I.
2. The Kingdom of Spain and the Portuguese Republic, without prejudice for these two Member States to Articles 61 to 66 and 222 to 232 of the 1985 Act of Accession, and the Hellenic Republic and Ireland may temporarily continue to apply restrictions to the capital movements listed in Annex IV, subject to the conditions and time limits laid down in that Annex.
If, before expiry of the time limit set for the liberalization of the capital movements referred to in Lists III and IV of Annex IV, the Portuguese Republic or the Hellenic Republic considers that it is unable to proceed with liberalization, in particular because of difficulties as regards its balance of payments or because the national financial system is insufficiently adapted, the Commission, at the request of one or other of these Member States, shall in collaboration with the Monetary Committee, review the economic and financial situation of the Member State concerned. On the basis of the outcome of this review, the Commission shall propose to the Council an extension of the time limit set for liberalization of all or part of the capital movements referred to. This extension may not exceed three years. The Council shall act in accordance with the procedure laid down in Article 69 of the Treaty.
3. The Kingdom of Belgium and the Grand Duchy of Luxembourg may temporarily continue to operate the dual exchange market under the conditions and for the periods laid down in Annex V.
4. Existing national legislation regulating purchases of secondary residences may be upheld until the Council adopts further provisions in this area in accordance with Article 69 of the Treaty. This provision does not affect the applicability of other provisions of Community law.
5. The Commission shall submit to the Council, by 31 December 1988, proposals aimed at eliminating or reducing risks of distortion, tax evasion and tax avoidance linked to the diversity of national systems for the taxation of savings and for controlling the application of these systems.
The Council shall take a position on these Commission proposals by 30 June 1989. Any tax provisions of a Community nature shall, in accordance with the Treaty, be adopted unanimously.
Article 7
1. In their treatment of transfers in respect of movements of capital to or from third countries, the Member States shall endeavour to attain the same degree of liberalization as that which applies to operations with residents of other Member States, subject to the other provisions of this Directive.
The provisions of the preceding subparagraph shall not prejudice the application to third countries of domestic rules or Community law, particularly any reciprocal conditions, concerning operations involving establishment, the provisions of financial services and the admission of securities to capital markets.
2. Where large-scale short-term capital movements to or from third countries seriously disturb the domestic or external monetary or financial situation of the Member States, or of a number of them, or cause serious strains in exchange relations within the Community or between the Community and third countries, Member States shall consult with one another on any measure to be taken to counteract such difficulties. This consultation shall take place within the Committee of Governors of the Central Banks and the Monetary Committee on the initiative of the Commission or of any Member State.
Article 8
At least once a year the Monetary Committee shall examine the situation regarding free movement of capital as it results from the application of this Directive. The examination shall cover measures concerning the domestic regulation of credit and financial and monetary markets which could have a specific impact on international capital movements and on all other aspects of this Directive. The Committee shall report to the Commission on the outcome of this examination.
Article 9
The First Directive of 11 May 1960 and Directive 72/156/EEC shall be repealed with effect from 1 July 1990.
Article 10
This Directive is addressed to the Member States.
Done at Luxembourg, 24 June 1988. | [
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COMMISSION REGULATION (EC) No 1916/95 of 2 August 1995 laying down detailed rules of application for the importation under preferential agreements on tariff quotas of raw cane sugar for refining
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organization of the markets in the sugar sector (1), as last amended by Regulation (EC) No 1101/95 (2), and in particular Article 37 (6) and the second subparagraph of Article 39 thereof,
Whereas Article 37 of Regulation (EEC) No 1785/81 provides that, during the 1995/96 to 2000/01 marketing years, in order to ensure adequate supplies to the Community refineries, a reduced rate of duty is to be levied on imports of raw cane sugar originating in the States with which the Community has concluded preferential supply agreements; whereas, as a result, detailed rules of application should be laid down where such agreements are concluded;
Whereas the quantities of special preferential sugar to be imported are laid down in accordance with the aforementioned Article 37 on the basis of an annual Community balance; whereas, as a result, if such a balance shows the need to import raw sugar, a tariff quota at a reduced rate of duty should be opened for all or part of the marketing year in question, to enable the requirements of the Communtiy refineries to be met within the limits laid down by the aformentioned Article 37 and under the conditions laid down by the aforementioned agreements;
Whereas, as a result of the maximum refining needs fixed for each Member State and the resultant necessity to enable the best possible controls to be undertaken on the distribution of the quantities of raw sugar to be imported, it is desirable to provide that only refiners should be entitled to be issued with the import licences in question, and that they should be able to transfer them among themselves; whereas the issue of an import licence makes it obligatory to import and refine the quantity in question within the necessary time limits, failing which the penality payment laid down in Article 37 (4) of Regulation (EEC) No 1785/81 is payable;
Whereas, in order to ensure sound management of the import system and proper implementation thereof, certain other special provisions should be laid down for import licences; whereas, furthermore, in cases where the yield of the raw sugar in question differs from that of the standard quality as defined in Council Regulation (EEC) No 431/68 of 9 April 1968 determining the standard quality for raw sugar and fixing the Community frontier crossing point for calculating cif prices for sugar (3), as amended by Regulation (EC) No 3290/94 (4), provision should be made for the special reduced rate of duty to be adjusted on the basis of that difference in accordance with the rules applicable to raw sugar transactions on the world market;
Whereas unforseeable delays may arise between the loading of a quantity of special preferential raw sugar and its delivery; whereas, as a result, a certain tolerance should be permitted to take account of such delays; whereas it is also appropriate to provide for a certain tolerance as regards the time taken for refining;
Whereas proof of the origin of imported raw sugar may be provided by presentation of the documents provided for to that end by Commission Regulation (EEC) No 2782/76 of 17 November 1976 laying down detailed implementing rules for the importation of preferential sugar (5), as last amended by Regulation (EEC) No 1714/88 (6);
Whereas, as a result of the special nature of the imports in question, provision should be made for certain derogations from Commission Regulation (EC) No 1464/95 of 27 June 1995 on special detailed rules for the application of the system of import and export licences in the sugar sector (7), which also applies to those imports;
Whereas 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
1. During the period referred to in Article 36 of Regulation (EEC) No 1785/81, the shortfall referred to in the second subparagraph of Article 37 (3) of that Regulation shall be fixed for each marketing year or part thereof, on the basis of a Community forecast supply balance for raw sugar. For the purposes of determining that balance, the established direct consumption to be taken into account shall not exceed the limit for such consumption referred to in Article 37 (3) of Regulation (EC) No 1785/81.
2. The shortfall may be imported by opening tariff quotas at a special reduced rate of duty agreed with the States referred to in Article 33 of Regulation (EEC) No 1785/81 and other States. It may be distributed between the Member States on the basis of their respective maximum presumed needs.
Article 2
1. The licences relating to these imports may be issued only within the limits of the quotas referred to in Article 1 (2). These licences shall be issued by the Member States referred to in Article 37 (2) of Regulation (EEC) No 1785/81 only to those refiners who import for the needs of their refineries within the meaning of Article 9 (4) of that Regulation.
However, the licences in question may be transferred by refiners to other refiners within the meaning of that Article 9 (4). The obligations to import and refine are not transferable and Article 9 of Commission Regulation (EEC) No 3719/88 (1) continues to apply.
2. The Member States concerned shall issue licences only within the limits of the import needs in special preferential sugar fixed, where necessary, for their refineries.
Article 3
The special reduced rate of duty fixed for each marketing year shall apply to raw sugar of the standard quality as defined in Article 1 of Regulation (EEC) No 431/68.
Whereas the polarization of the imported raw sugar deviates from 96 degrees, the special reduced rate of duty shall be increased or decreased, as the case may be, by 0,14 % for each one-tenth of a degree by which it deviates.
Article 4
1. Notwithstanding Article 6 (1) of Regulation (EC) No 1464/95 and without prejudice to Article 6 (1), import licences for raw sugar under the system provided for in this Regulation shall be valid from the data on which they are issued until the end of the marketing year in respect of which they are issued.
2. The licence applications referred to in paragraph 1 shall be submitted by the refiner to the competent body of the Member State of import concerned and shall be accompanied by a declaration by which the refiner undertakes to refine the quantity of raw sugar in question in the marketing year in respect of which it is imported.
Without prejudice to Article 6, if the sugar in question is not refined within the time limit laid down, the refiner who applied for the licence shall pay an amount equal to the full rate of duty applicable to raw sugar in the marketing year in question plus, where applicable, the highest additional rate of duty recorded during that marketing year.
The refiner who applied for the licence must show proof of relating to the Member State which issued the licence and that is acceptable to it within three months of the end of the time limit laid down for refining.
3. Section [12] of import licence applications and of licences themselves shall include the following entry:
'Raw sugar originating in . . . (name of the country or countries referred to in Article 1 (2)) imported at a special reduced rate of duty pursuant to Article 37 (1) of Regulation (EEC) No 1785/81`.
4. The security relating to licences as referred to in paragraph 1 shall be ECU 0,30 per 100 kilograms net weight of sugar.
5. For the purposes of Article 37 (4) of Regulation (EEC) No 1785/81, amounts in excess of the maximum presumed needs shall be deemed to be the quantities of preferential raw sugar, of special preferential sugar, of raw sugar obtained in the French Overseas Departments and, where applicable, of raw sugar from beet referred to in Article 36 (5) of Regulation (EEC) No 1785/81, which have been actually refined in refineries over and above the presumed needs fixed for the Member State in question in paragraph 2 of the aforementioned Article 37.
Article 5
1. Proof of the origin of the sugar imported from the States referred to in Article 1 (2) shall be provided by presentation of a certificate of origin provided for, as the case may be, in Article 6 or Article 7 of Commission Regulation (EEC) No 2782/76 (2).
2. The certificate of origin referred to in paragraph 1 shall bear:
- the indication 'special preferential raw sugar - Application of Regulation (EC) No 1916/95`,
- the date of loading of the sugar and the marketing year in respect of which delivery is being made,
- the CN code of the product in question.
3. The copies provided by applicants referred to in paragraph 1 above shall be forwarded by the Member States to the Commission.
The competent authorities of the Member States shall enter on the copies of the certificates:
- the appropriate date, established on the basis of a shipping document, on which loading of the sugar in the port of export was completed,
- information relating to the import operation and the quantities actually imported.
Article 6
1. Except in the event of force majeure, where it has not been possible for a quantity of special preferential sugar to be delivered in sufficient time to enable it to be refined by the end of the marketing year in respect of which the licence referred to in Article 4 (1) has been issued, the Member State of importation may, at the request of the refiner, extend the validity of the licence for 30 days from the beginning of the following marketing year.
In that case, the raw sugar in question shall be refined within the time limit referred to in paragraph 2 and shall count against and be within the limits of the maximum presumed needs for the preceding marketing year.
2. Where it has not been possible to refine a quantity of special preferential sugar by the end of the marketing year in respect of which the licence referred to in Article 4 (1) has been issued, the Member State in question, may, at the request of the refiner, allow an additional refining time limit of a maximum of 90 days from the beginning of the following marketing year.
In that case, the raw sugar is question shall be refined within that time limit and shall count against and be within the limits of the maximum presumed needs for the preceding marketing year.
Article 7
Where the refiner pays the special reduced rate of duty referred to in Article 3, that duty should be deducted from the mininum price laid down in the agreement referred to in Article 37 (1) of Regulation (EEC) No 1785/81.
Article 8
The Member States concerned shall notify to the Commission:
(a) every week in respect of the preceding week, the quantity of raw sugar by weight for which import licences as referred to in Article 4 have been issued,
(b) every month in respect of the preceding month:
- the quantity of raw sugar by weight actually imported under licences as referred to in Article 4,
- the quantity of raw sugar in question by weight and in white sugar equivalent refined during the month preceding that in which the report is made,
(c) by 31 July of each marketing year, the quantity of raw sugar by weight intended for refining, in stock at the refineries on 1 July of that marketing year.
Article 9
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 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 August 1995. | [
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COMMISSION REGULATION (EEC) No 1844/89
of 26 June 1989
fixing for the 1989/90 marketing year the components intended to ensure protection of the processing industry in the cereals and rice sector in trade between Spain and the Community of Ten
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Act of Accession of Spain and Portugal,
Having regard to Council Regulation (EEC) No 487/86 of 25 February 1986 laying down general rules for the components intended to ensure protection of the processing industry in the cereals and rice sector and fixing those relating to Spain (1), and in particular Article 1 (3) thereof,
Whereas Article 78 (3) of the Act of Accession lays down that the protection components must be gradually eliminated by reducing the basic component by 12,5 % at the beginning of each of the eight marketing years following accession; whereas each reduction must take effect from the beginning of the marketing year of the product in question;
Whereas the fixed opponents applicable in trade between Spain and the Community of Ten must be fixed in the cereals and rice sector for the 1989/90 marketing year,
HAS ADOPTED THIS REGULATION:
Article 1
For the products covered by Council Regulations (EEC) No 2727/75 (2) and (EEC) No 1418/76 (3), the components intended to ensure protection of the processing industry as referred to in Article 78 of the Act of Accession and levied on imports into the Community of Ten from Spain and on imports into Spain from the Community of Ten are fixed in the Annex hereto for the 1989/90 marketing year.
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 1989 as regards the products covered by Regulation (EEC) No 2727/75 and from 1 September 1989 as regards the products covered by Regulation (EEC) No 1418/76.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 June 1989. | [
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Commission Regulation (EC) No 1939/2003
of 31 October 2003
fixing the rates of the refunds applicable to eggs and egg yolks exported in the form of goods not covered by Annex I to the Treaty
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2771/75 of 29 October 1975 on the common organisation of the market in eggs(1), as last amended by Regulation (EC) No 806/2003(2), and in particular Article 8(3) thereof,
Whereas:
(1) Article 8(1) of Regulation (EEC) No 2771/75 provides that the difference between prices in international trade for the products listed in Article 1(1) of that Regulation and prices within the Community may be covered by an export refund where these goods are exported in the form of goods listed in the Annex to that Regulation. Commission Regulation (EC) No 1520/2000 of 13 July 2000 laying down common detailed rules for the application of the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds(3), as last amended by Regulation (EC) No 740/2003(4), specifies the products for which a rate of refund should be fixed, to be applied where these products are exported in the form of goods listed in Annex I to Regulation (EEC) No 2771/75.
(2) In accordance Article 4(1) of Regulation (EC) No 1520/2000, the rate of the refund per 100 kilograms for each of the basic products in question must be fixed for a period of the same duration as that for which refunds are fixed for the same products exported unprocessed.
(3) Article 11 of the Agreement on Agriculture concluded under the Uruguay Round lays down that the export refund for a product contained in a good may not exceed the refund applicable to that product when exported without further processing.
(4) In accordance with Council Regulation (EC) No 1039/2003 of 2 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in Estonia and the exportation of certain agricultural products to Estonia(5), Council Regulation (EC) No 1086/2003 of 18 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in Slovenia and the exportation of certain processed agricultural products to Slovenia(6), Council Regulation (EC) No 1087/2003 of 18 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in Latvia and the exportation of certain processed agricultural products to Latvia(7), Council Regulation (EC) No 1088/2003 of 18 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in Lithuania and the exportation of certain processed agricultural products to Lithuania(8), Council Regulation (EC) No 1089/2003 of 18 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in the Slovak Republic and the exportation of certain processed agricultural products to the Slovak Republic(9) and Council Regulation (EC) No 1090/2003 of 18 June 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in the Czech Republic and the exportation of certain processed agricultural products to the Czech Republic(10) with effect from 1 July 2003, processed agricultural products not listed in Annex I to the Treaty which are exported to Estonia, Slovenia, Latvia, Lithuania, Slovakia or the Czech Republic are not eligible for export refunds.
(5) In accordance with Council Regulation (EC) No 999/2003 of 2 June 2003 adopting autonomous and transitional measures concerning the import of certain processed agricultural products originating in Hungary and the export of certain processed agricultural products to Hungary(11), with effect from 1 July 2003, the goods referred to in its Article 1(2) which are exported to Hungary shall not be eligible for export refunds.
(6) In accordance with Council Regulation (EC) No 1890/2003 of 27 October 2003 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in Malta and the exportation of certain processed agricultural products to Malta(12), with effect from 1 November 2003, processed agricultural products not listed in Annex I to the Treaty which are exported to Malta are not eligible for export refunds.
(7) It is necessary to ensure continuity of strict management taking account of expenditure forecasts and funds available in the budget.
(8) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Poultrymeat and Eggs,
HAS ADOPTED THIS REGULATION:
Article 1
The rates of the refunds applicable to the basic products listed in Annex A to Regulation (EC) No 1520/2000 and in Article 1(1) of Regulation (EEC) No 2771/75, exported in the form of goods listed in Annex I to Regulation (EEC) No 2771/75, are fixed as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 1 November 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 October 2003. | [
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*****
COMMISSION REGULATION (EEC) No 1808/87
of 29 June 1987
fixing the reference prices for hybrid maize and hybrid sorghum for sowing for the 1987/88 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2358/71 of 26 October 1971 on the common organization of the market in seeds (1), as last amended by Regulation (EEC) No 1355/86 (2), and in particular Article 6 (5) thereof,
Whereas Council Regulation (EEC) No 1355/86 has amended Regulation (EEC) No 2358/71 by including hybrid sorghum for sowing among the products covered by the common organization of the market in seeds and making it subject to the reference price system for hybrid maize;
Whereas Article 6 (1) of Regulation (EEC) No 2358/71 provides that a reference price for each type of hybrid maize and hybrid sorghum for sowing is to be fixed annually; whereas those reference prices must be fixed on the basis of the free-at-frontier prices recorded during the last three marketing years except for abnormally low prices; whereas, pursuant to Article 2 of Council Regulation (EEC) No 1578/72 of 20 July 1972 laying down general rules for fixing reference prices and for determining free-at-frontier offer prices for hybrid maize and hybrid sorghum for sowing (3), as last amended by Regulation (EEC) No 1984/86 (4), only prices for imports from third countries which are representative in terms of quantity and quality of the product should be taken into consideration;
Whereas imports of the types of hybrid maize for sowing falling within subheading 10.05 A IV 'Other' of the Common Customs Tariff may not be considered as representative on account of the very small quantity involved; whereas no reference prices may therefore be fixed for those types of maize;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Seeds,
HAS ADOPTED THIS REGULATION:
Article 1
For the 1987/88 marketing year, the reference prices for hybrid maize and hybrid sorghum for sowing falling within subheadings 10.05 A I, 10.05 A II, 10.05 A III and 10.07 C I of the Common Customs Tariff shall be as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 1 July 1987.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 June 1987. | [
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COMMISSION REGULATION (EC) No 569/1999 of 16 March 1999 amending Regulation (EEC) No 1756/93 fixing the operative events for the agricultural conversion rate applicable to milk and milk products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2799/98 of 15 December 1998 establishing the agrimonetary arrangements for the euro (1), and in particular Article 3 thereof,
Whereas Regulation (EC) No 2799/98 abolishes the agricultural conversion rates; whereas Commission Regulation (EEC) No 1756/93 (2), as last amended by Regulation (EC) No 420/98 (3), fixes the operative events for the agricultural conversion rate to be applied to all the amounts fixed in ecus in the milk and milk products sector; whereas the reference to the agricultural conversion rate should therefore be replaced by a reference to the operative event;
Whereas the operative events for the aid referred to in Article 16(3)(d) of Commission Regulation (EC) No 2571/97 on the sale of butter at reduced prices and the granting of aid for cream, butter and concentrated butter for use in the manufacture of pastry products, ice-cream and other foodstuffs (4), as last amended by Regulation (EC) No 494/1999 (5), are defined in points 4A (i), (ii) and (iii) of part B.III of the Annex to Regulation (EEC) No 1756/93; whereas the increase introduced by Commission Regulation (EC) No 1061/98 (6) in the tendering security referred to in Article 17(1) of Regulation (EC) No 2571/97 implies that the economic aim is achieved at the moment of tender and thus the dates mentioned above must be replaced by the final date on which tenders for a particular invitation to tender are to be submitted;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 1756/93 is amended as follows:
1. Article 1 is replaced by the following:
'Article 1
1. The operative event for the amounts fixed as part of the measures to assist the private storage of milk and milk products shall occur on the first day of storage under contract.
2. The operative event for the securities shall be the lodgement of the security.
3. The operative event for the other prices and amounts applicable in the milk and milk products sector shall be the start of the days fixed in the Annex to this Regulation`.
2. Article 2 is amended as follows:
(a) The second subparagraph of paragraph 1 is replaced by the following:
'Where the taking-over operation referred to in the first indent of point (b) concerns more than one batch, the operative event applicable to the first batch shall continue to apply to the total quantity of the transaction in question on condition that the first batch represents 20 % or more of the said total quantity`.
(b) The second subparagraph of paragraph 1 is replaced by the following:
'Where the total amount of the transaction in question is paid in instalments, the operative event for the first instalment shall continue to apply to the total amount payable on condition that the first instalment represents 20 % or more of the said total amount`.
3. The Annex to Regulation (EEC) No 1756/93 is amended as follows:
(a) In the heading of the third column the words 'Agricultural conversion rate to be applied` are replaced by 'Day of the operative event`.
(b) In the third column, the words 'Agricultural conversion rate applicable on` are deleted.
(c) Point 4 of part B.III of the Annex to Regulation (EEC) No 1756/93 is replaced by the following:
TABLE
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 March 1999. | [
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*****
COMMISSION REGULATION (EEC) No 3344/89
of 7 November 1989
re-establishing the levying of customs duties on woven fabrics of synthetic fibres (continuous), other than those of category 114, products of category 35 (order No 40.0350), and on men's and boys' knitted or crocheted suits and ensembles, of wool, cotton or man-made fibres, excluding ski suits, products of category 75 (order No 40.0750), originating in Pakistan to which the preferential tariff arrangements of Council Regulation (EEC) No 4259/88 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 4259/88 of 19 December 1988 applying generalized tariff preferences for 1989 to textile products originating in developing countries (1), and in particular Article 13 thereof,
Whereas Article 11 of Regulation (EEC) No 4259/88 provides that preferential tariff treatment shall be accorded, for each category of products subjected in Annexes I and II thereto to individual ceilings, within the limits of the quantities specified in column 8 of Annex I and column 7 of Annex II, in respect of certain or each of the countries or territories of origin referred to in column 5 of the same Annexes;
Whereas Article 12 of the abovmentioned Regulation provides that the levying of customs duties may be re-established at any time in respect of imports of the products in question once the relevant individual ceilings have been reached at Community level;
Whereas, in respect of woven fabrics of synthetic fibres (continuous), other than those of category 114, products of category 35 (order No 40.0350), and men's and boys' knitted or crocheted suits and ensembles, of wool, cotton or man-made fibres, excluiding ski suits, products of category 75 (order No 40.0750), the originating in Pakistan, the relevant ceiling amounts respectively to 251 tonnes and to 9 000 pieces; Whereas on 8 July and 21 April respectively 1989 imports of the products in question into the Community, originating in Pakistan, a country covered by preferential tariff arrangements, reached and were charged against that ceiling;
Whereas it is appropriate to re-establish the levying of customs duties for the products in question with regard to Pakistan,
HAS ADOPTED THIS REGULATION:
Article 1
As from 11 November 1989, the levying of customs duties, suspended pursuant to Regulation (EEC) No 4259/88, shall be re-established in respect of the following products, imported into the Community and originating in Pakistan:
1.2.3.4 // // // // // Order No // Category (unit) // CN code // Description // // // // // // // // // 40.0350 // 35 (tonnes) // 5407 10 00 5407 20 90 5407 30 00 5407 41 00 5407 42 10 5407 42 90 5407 43 00 5407 44 10 5407 44 90 5407 51 00 5407 52 00 5407 53 10 5407 53 90 5407 54 00 5407 60 10 5407 60 30 5407 60 51 // Woven fabrics of synthetic fibres (continuous), other than those for tyres of category 114 // // // 5407 60 59
(1) OJ No L 375, 31. 12. 1988, p. 83.
// // // // // Order No // Category (unit) // CN code // Description // // // // // // 40.0350 (cont'd) // // 5407 71 00 5407 72 00 5407 73 10 5407 73 91 5407 73 99 5407 74 00 5407 81 00 5407 82 00 5407 83 10 5407 83 90 5407 84 00 5407 91 00 5407 92 00 5407 93 10 5407 93 90 5407 94 00 ex 5811 00 00 ex 5905 00 70 // // 40.0750 // 75 (1 000 pieces) // 6103 11 00 6103 12 00 6103 19 00 6103 21 00 6103 22 00 6103 23 00 6103 29 00 // Men's or boys' knitted or crocheted suits and ensembles, of wool, cotton or man-made fibres, excluding ski suits // // // //
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, 7 November 1989. | [
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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
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 308 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
(1) Whereas the Luxembourg European Council advocated a substantial increase in pre-accession aid so as to include, in addition to the PHARE programme, aid to agriculture and for structural measures;
(2) Whereas Council Regulation (EC) No 622/98 of 16 March 1998 on assistance to the applicant countries in the framework of the pre-accession strategy and in particular on the establishment of Accession Partnerships(3) provides that those partnerships are to comprise a single framework for the priority areas and all available resources for pre-accession assistance;
(3) Whereas Regulation (EC) No 1268/1999(4) set up an agricultural instrument for application mainly in areas such as modernising the structure of agricultural holdings, improving processing and distribution structures, developing inspection activities and rural development;
(4) Whereas the structural instrument created by Regulation (EC) No 1267/1999(5), is intended to finance infrastructure in the transport and environment fields;
(5) Whereas the PHARE programme set up by Regulation (EEC) No 3906/89(6), will in future focus on the essential priorities linked to adoption of the acquis communautaire, i.e. building up the administrative and institutional capacities of the applicant countries and financing investments designed to help them comply with Community law as soon as possible;
(6) Whereas it is important to ensure that Community operations under the three pre-accession instruments achieve optimum economic impact;
(7) Whereas paragraph 17 of the conclusions of the Luxembourg European Council on 12 and 13 December 1997 provides that financial support to the countries involved in the enlargement process will be based, in the allocation of aid, on the principle of equal treatment, independently of the time of accession, with particular attention being paid to the countries with the greatest need;
(8) Whereas the above instruments should remain distinct but there must be coordination between operations under them as well as with operations funded by the European Investment Bank, the European Bank for Reconstruction and Development, the Community's other financial instruments and the other international financial institutions;
(9) Whereas it is necessary to provide for reciprocal information and cooperation between the Commission and the candidate countries for on the spot control and verification to ensure efficient protection of the financial interests as well as to combat fraud and other irregularities;
(10) Whereas management of pre-accession assistance should gradually be decentralised to the applicant countries themselves, taking account of their management and financial control capacities, so that they can be more closely involved in the pre-accession aid process;
(11) Whereas the Commission should submit regular reports on pre-accession aid to the applicant countries,
HAS ADOPTED THIS REGULATION:
Article 1
Coordination and coherence between assistance granted in the framework of the pre-accession strategy under the agricultural and rural development instrument (hereinafter "the Agricultural Instrument"), the Structural Instrument and PHARE shall be ensured in accordance with this Regulation.
Article 2
Measures to support agriculture and rural development as set out in Article 2 of the Agricultural Instrument set up by Regulation (EC) No 1268/1999 shall be financed in accordance with the provisions of that Regulation.
Article 3
Investment projects in the following areas shall be financed from the pre-accession aid Structural Instrument set up by Regulation (EC) No 1267/1999 and in accordance with the provisions thereof:
- environmental measures enabling the beneficiary countries to comply with the requirements of Community environmental law and with the objectives of the Accession Partnerships,
- transport infrastructure measures which promote sustainable mobility, and in particular those that constitute projects of common interest based on the criteria of Decision No 1692/96/EC(7) and those which enable the beneficiary countries to comply with the objectives of the Accession Partnerships; this includes interconnection and interoperability of national networks as well as with the trans-European networks together with access to such networks.
Article 4
1. Funding under the PHARE programme shall be carried out in accordance with Regulation (EEC) No 3906/89.
2. Regulation (EEC) No 3906/89 is hereby amended by adding a new paragraph 3 to Article 3 to read as follows:
"3. For applicant countries with accession partnerships with the European Union, funding under the PHARE programme shall focus on the main priorities for the adoption of the acquis communautaire, i.e. building up the administrative and institutional capacities of the applicant States and investment, except for the type of investments financed in accordance with Regulations (EC) No 1267/1999(8) and (EC) No 1268/1999(9). PHARE funding may also be used to finance the measures in the fields of environment, transport and agricultural and rural development which form an incidental but indispensable part of integrated industrial reconstruction or regional development programmes."
Article 5
Aid for schemes or measures financed in the framework of pre-accession aid may be granted from one only of the instruments referred to in this Regulation.
Article 6
Financing of the schemes or measures provided for in this Regulation shall be subject to compliance with the undertakings contained in the Europe Agreements as recalled in Regulation (EC) No 622/98 and with the conditions laid down in the Accession Partnerships, as well as to the relevant provisions of Regulations (EEC) No 3906/89, (EC) No 1267/1999, (EC) No 1268/1999 and of this Regulation.
Article 7
Beneficiary States shall contribute to the financing of investments.
Article 8
Schemes or measures financed under the three instruments referred to in Articles 2, 3 and 4 shall be decided in accordance with the provisions laid down in the relevant Regulation relating to that instrument.
Article 9
1. The Commission shall be responible for coordinating operations under the said three instruments, and in particular for establishing the pre-accession aid guidelines for each country. It shall be assisted for this purpose by the committee set up by Article 9 of Regulation (EEC) No 3906/89.
2. The Commission shall inform the committee referred to in paragraph 1 about the indicative financial allocations for each country and per pre-accession instrument, about action it has taken pursuant to Article 10, and about decisions taken pursuant to Article 12. Such decisions shall be communicated to the Court of Auditors.
Article 10
The Commission shall ensure coordination and coherence between operations undertaken pursuant to this Regulation under the Commission budget, operations funded by the European Investment Bank or other financial instruments of the Community, and operations funded by international financial institutions.
Article 11
1. The Commission shall implement the Community aid in accordance with the rules of transparency and the Financial Regulation applicable to the general budget of the European Communities, in particular Article 114 thereof.
2. Pre-accession aid shall also cover expenditure relating to the monitoring, inspection and evaluation of operations.
3. Financing decisions and any contracts or implementing instruments resulting therefrom shall expressly provide for inspection by the Commission and the Court of Auditors to be carried out on the spot, if necessary.
Article 12
1. Project selection, tendering and contracting by applicant countries shall be subject to ex-ante approval by the Commission.
2. The Commission may, however, decide, on the basis of a case-by-case analysis of national and sectorial programme/project management capacity, financial control procedures and structures regarding public finance, to waive the ex-ante approval requirement referred to in paragraph 1 and confer on implementing agencies in applicant countries management of aid on a decentralised basis. Such a waiver shall be subject to:
- the minimum criteria for assessing the ability of implementing agencies in applicant countries to manage aid and minimum conditions applicable to such agencies set out in the Annex to this Regulation;
- and specific provisions concerning, inter alia, invitations to tender, scrutiny and evaluation of tenders, the award of contracts and the implementation of Community public procurement directives, which shall be laid down in financing agreements with each beneficiary country.
3. The Commission shall adopt rules governing inspection and evaluation.
Article 13
The Commission shall present an annual report on the overall pre-accession aid for each country to the European Parliament and to the Council.
Article 14
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 Luxembourg, 21 June 1999. | [
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Commission Regulation (EC) No 2161/2003
of 11 December 2003
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1947/2002(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 12 December 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 December 2003. | [
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Commission Decision
of 22 February 2002
amending Decisions 2001/925/EC, 2002/33/EC and 2002/41/EC to prolong certain protection measures and detailed conditions in relation to classical swine fever in Spain
(notified under document number C(2002) 618)
(Text with EEA relevance)
(2002/162/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market(1), as last amended by Directive 92/118/EEC(2) and, in particular, Article 10(4) thereof,
Having regard to Council Directive 2001/89/EC of 23 October 2001 on Community measures for the control of classical swine fever(3) and, in particular, Article 10(1)(b) and Article 11(1)(f) thereof,
Whereas:
(1) Outbreaks of classical swine fever have occurred in Cataluña in Spain.
(2) Spain has taken measures within the framework of Directive 2001/89/EC.
(3) In relation to these outbreaks of disease, the Commission adopted: (i) Decision 2001/925/EC(4), as last amended by Decision 2002/31/EC(5), concerning certain protection measures relating to classical swine fever in Spain; (ii) Decision 2002/33/EC(6) on the use of two slaughterhouses, in accordance with Article 10(1)(b) of Council Directive 2001/89/EC, by Spain; and (iii) Decision 2002/41/EC(7), concerning certain further detailed conditions for the granting of authorisation for the removal of pigs from the holdings located within the protection and surveillance zones established in Spain in relation to classical swine fever.
(4) In the light of the evolution of the situation in the concerned area of Spain it is appropriate to prolong the adopted measures and conditions and to amend Decisions 2001/925/EC, 2002/33/EC and 2002/41/EC accordingly.
(5) The measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
In Article 8 of Decision 2001/925/EC:
(a) the words "20 February 2002" are replaced by the words "20 March 2002";
(b) the words "28 February 2002" are replaced by the words "31 March 2002".
Article 2
In Article 2 of Decision 2002/33/EC the words "28 February 2002" are replaced by the words "31 March 2002".
Article 3
In Article 4 of Decision 2002/41/EC the words "28 February 2002" are replaced by the words "31 March 2002".
Article 4
This Decision is addressed to the Member States.
Done at Brussels, 22 February 2002. | [
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*****
COMMISSION REGULATION (EEC) No 3351/87
of 6 November 1987
on the introduction of a measure for Spanish maize consigned to the Community as constituted at 31 December 1985
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 90 thereof,
Whereas surpluses resulting in particular from the application of the Agreement between the European Economic Community and the United States of America, as approved by Council Decision 87/224/EEC (1), are among the main features of the market in maize in Spain;
Whereas imports under the Agreement make it difficult to dispose of Spanish maize, which traditionally finds an outlet on the home market;
Whereas the location of Spain's production and the rules governing trade between Spain and the Member States of the Community as constituted on 31 December 1985 prevent the said surpluses from being disposed of in those Member States;
Whereas the granting of an amount in respect of Spanish maize consigned to other Member States is likely to improve the flow of trade in the Community and, thereby, alleviate the situation on the market in maize in Spain; whereas the granting of such an amount could well, however, result in deflection of trade; whereas the only way to avoid the said deflection of trade is to grant the amount in question only in cases where the maize is consigned to the other Member States via what is, in the light of the location of Spain's production, the most suitable means of transport;
Whereas, in order to facilitate the administration of the scheme, the amount should be granted at a stage at which it can be deducted from the accession compensatory amount;
Whereas a provision should be introduced whereby operations pursuant to this Regulation are taken into account in accordance with Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy (1), as last amended by Regulation (EEC) No 3183/87 (3);
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. An amount of 5,38 ECU per tonne, multiplied by the monetary coefficient referred to in Article 6 (3) of Commission Regulation (EEC) No 3153/85 (4), shall be granted when maize falling within subheading 10.05 B of the Common Customs Tariff, consigned from Spain by sea and fulfilling, in Spain, the conditions laid down in Article 9 (2) of the Treaty has been entered for home use and discharged in the Community as constituted on 31 December 1985.
2. The amount referred to in paragraph 1 shall be deducted, for the sole purpose of payment to the beneficiary, from the accession compensatory amount applicable to the product concerned.
3. The granting of the amount specified in paragraph 1 shall constitute intervention intended to stabilize the agricultural markets, within the meaning of Article 1 (2) (b) of Regulation (EEC) No 729/70.
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 to products entered for home use before 1 January 1988.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 6 November 1987. | [
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Commission Regulation (EC) No 1057/2001
of 31 May 2001
amending Regulation (EEC) No 1833/92 setting the amounts of aid for the supply of cereals products from the Community to the Azores and Madeira
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1600/92 of 15 June 1992 introducing specific measures in respect of certain agricultural products for the benefit of the Azores and Madeira(1), as last amended by Regulation (EC) No 2826/2000(2), and in particular Article 10 thereof,
Whereas:
(1) The amounts of aid for the supply of cereals products to the Azores and Madeira has been settled by Commission Regulation (EEC) No 1833/92(3), as last amended by Regulation (EC) No 831/2001(4), whereas, as a consequence of the changes of the rates and prices for cereals products in the European part of the Community and on the world market, the aid for supply to the Azores and Madeira should be set at the amounts given in the Annex.
(2) 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 Annex of amended Regulation (EEC) No 1833/92 is replaced by the Annex to the present Regulation.
Article 2
This Regulation shall enter into force on 1 June 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 May 2001. | [
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Commission Regulation (EC) No 189/2001
of 30 January 2001
amending Regulation (EC) No 1771/96 laying down detailed rules for the implementation of the specific measures for the supply of hops to the French overseas departments
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3763/91 of 16 December 1991 introducing specific measures in respect of certain agricultural products for the benefit of the French overseas departments(1), as last amended by Regulation (EC) No 2826/2000(2), and in particular Article 2(6) thereof,
Whereas:
(1) Commission Regulation (EC) No 1771/96(3), as last amended by Regulation (EC) No 2797/1999(4), establishes the quantities of the forecast supply balance for the French overseas departments of hops eligible for exemption from import duties or for Community aid from the rest of the Community as well as the amount of that aid. The above quantities should be established for the period 1 January to 31 December 2001.
(2) This Regulation will enter into force after the expiry of the time limit for submitting licence applications in January 2001. To avoid a break in supplies to the French overseas departments, provision should be made to derogate from Article 4(1) and (2) of Regulation (EC) No 1771/96 and to allow, for that month alone, the submission of licence applications in the five working days following the entry into force of this Regulation and to set the time limit for the issue of such licences at 10 working days following the entry into force of this Regulation.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Hops,
HAS ADOPTED THIS REGULATION:
Article 1
Article 1 of Regulation (EC) No 1771/96 is hereby replaced by the following:
"Article 1
For the purposes of Article 2 of Regulation (EEC) No 3763/91, the quantity for the forecast supply balance for hops falling within CN codes 1210 and 1302 13 00 eligible for exemption from duty on importation into the French overseas departments or, for products from the rest of the Community, eligible for Community aid is hereby set at 15 tonnes for the period 1 January to 31 December 2001. This quantity shall be allocated as laid down in the Annex.
The French authorities may adjust the allocation within the overall limit set. They shall inform the Commission of any such adjustment."
Article 2
By way of derogation from Article 4(1) of Regulation (EC) No 1771/96, for January 2001 applications for licences shall be submitted to the competent authority no later than the fifth working day following the entry into force of this Regulation.
By way of derogation from Article 4(2) of Regulation (EC) No 1771/96, for January 2001 licences shall be issued no later than 10 working days after the entry into force of this Regulation.
Article 3
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 1 January 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 January 2001. | [
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COMMISSION DECISION of 6 October 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty and Article 53 of the EEA Agreement (IV/34.776 - Pasteur Mérieux-Merck) (Only the English and French texts are authentic) (Text with EEA relevance) (94/770/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation No 17 of 6 February 1962, first Regulation implementing Articles 85 and 86 of the Treaty (1), as last amended by the Act of Accession of Spain and Portugal, and in particular Articles 2, 4, 6 and 8 thereof,
Having regard to the notification on 4 June 1993 by Merck & Co. Inc. and Pasteur Mérieux Sérums et Vaccins pursuant to Article 4 of Council Regulation (EEC) No 4064/89 (2),
Having regard to the Commission's decision on 5 July 1993 that the notified operation does not fall within the scope of Regulation (EEC) No 4064/89 because it does not constitute a concentration within the meaning of Article 3 of the said Regulation (3),
Having regard to the parties' request pursuant to Article 5 (1) of Commission Regulation (EEC) No 2367/90 (4), as amended by Regulation (EC) No 3666/93 (5), to treat the notification pursuant to Regulation (EEC) No 4064/89 as an application within the meaning of Article 2 and/or a notification within the meaning of Article 4 of Regulation No 17,
Having regard to the Agreement on the European Economic Area (hereinafter referred to as 'the EEA Agreement'), and to the parties' request on 26 January 1994, pursuant to Articles 5 and 8 of Protocol 21 to the EEA Agreement, that their notification be extended to Article 53 of the EEA Agreement,
Having published a summary of the application and notification pursuant to Article 19 (3) of Regulation No 17 (6),
After consulting the Advisory Committee on Restrictive Practices and Dominant Positions,
Whereas:
I. THE FACTS A. The procedure (1) The notification concerns an operation under which Pasteur Mérieux Sérums et Vaccins (PMsv) and Merck & Co. Inc. (Merck) will organize their existing activities in the human vaccines and some related businesses within a territory being defined as the EC and EFTA, through a jointly-controlled company, Pasteur Mérieux MSD SNC (the JV). The operation is organized by the way of a set of different agreements between the parties, most dated 25 May 1993 and includes a set of so-called 'ancillary agreements', in particular the Overview Agreement between the JV and Behringwerke AG (Behring).
(2) Since 5 July 1993, the operation has been examined pursuant to Articles 85 and 86 of the EC Treaty. Within two months, notably on 13 August 1993, the Commission informed the parties that it had serious doubts as to the compatibility of the notified operation with Community competition rules, and invited them to submit satisfactory proposals in order to prevent the case being closed by a negative decision.
(3) As a result the parties gave, with a viev to obtaining an exemption under Article 85 (3), an undertaking on 3 November 1993 to amend substantially the agreements with Behring and to grant specific rights to third parties in respect of some vaccines. This undertaking resulted in the following changes to the Behring agreements:
- conclusion of an exclusive manufacturing licence for Merck's monovalent Haemophilus Influenzae B (HIB) vaccine, used to prevent one of the forms of meningitis, in Germany (recital 27),
- conclusion of the Multivalent Technology Transfer Licence Agreement in the form described below (recital 44),
- amendments to the other agreements for the distribution of certain vaccines in Germany (recital 43).
The undertaking also resulted in the conclusion with Pierre Fabre Médicament SA (Pierre Fabre) of an exclusive manufacturing licence for Merck's monovalent Hib vaccine in France and distribution rights for France to Merck's measles/mumps/ rubella (MMR) vaccine and its individual and bivalent components (recitals 32 and 33).
The parties also undertook that the JV would provide the Commission with annual reports on volumes, prices and/or market shares in connection with the German and French HIB markets, and the French Hepatitis B and measles/mumps/rubella markets.
(4) The entry into force of the EEA Agreement on 1 January 1994 and the parties' request on 26 January 1994 to extend their notification to Article 53 of the EEA Agreement, led to a further undertaking on 25 February 1994 pursuant to which on 16 May a letter of intent has been concluded with the Finnish company, Orion Pharmaceutical International (Orion), to enter into negotiations to grant Orion an exclusive manufacturing licence for Merck's monovalent Hib vaccine in the Nordic EFTA countries. However, on 13 June Orion turned down this offer (recitals 34 and 35).
(5) Lederle-Praxis Biologicals (LPB) is a subsidiary of the US pharmaceutical company American Cyanamid Company and active on the US vaccine markets and since 1991 in Europe with its HIB vaccine. On 15 June 1993 (7), this company lodged an application pursuant to Article 3 (2) of Regulation No 17 for the initiation of a proceeding under Articles 85 and 86 of the EC Treaty against Institut Mérieux, the parent company of PMsv; Merck and Smith Kline Beecham (SKB) (hereinafter referred to as 'the complaint'). The complaint consisted of two different parts. The first part related to LPB's allegation that the three firms are abusing their dominant positions in various Member States by not supplying Hepatitis B vaccine to LPB. LPB also requested the Commission to adopt interim measures to compel them to sell Hepatitis B vaccine to LPB on reasonable commercial terms and conditions including access to registration documents. The second part related to the formation of the JV between PMsv and Merck. The Commission has, by letter of 17 February 1994, pursuant to Article 6 of Commission Regulation No 99/63/EEC (8), informed LPB that it considers that there are not sufficient grounds for granting the first part of the application and that the second part will be dealt with in the context of the specific proceedings for notified agreements pursuant to Regulation No 17. LPB has, by letter of 22 April 1994, informed the Commission that it will not submit comments to the Commission's letter, but that it is intending to respond to the publication pursuant to Article 19 (3) of Regulation No 17 (see recitals 45 to 48).
B. The parties (6) PMsv is a subsidiary of Institut Mérieux, itself a subsidiary of Rhône-Poulenc, a privatized French group of chemical and pharmaceutical companies active worldwide. PMsv is a specialist manufacturer of human vaccine products, blood proteins and other related biological products. The turnover figures (million ecu for 1992) for Rhône-Poulenc and PMsv are: Rhône-Poulenc (worldwide: 11 962; EEA: 6 481) and PMsv (worldwide: 588, of which 414,6 from vaccine sales; EEA: 293, of which 226 from vaccine sales). PMsv's EEA turnover from immunoglobulins, in vivo diagnostics and sera was ECU 10,7 million in 1992.
(7) Merck is a major US company active worldwide in pharmaceuticals. Its total turnover (million ecu for 1992) was: (worldwide: 7 444, of which 374 from vaccine sales; EEA: 1 847, of which 43,9 from vaccine sales). In 1991 Merck formed a separate division for its vaccines business. Merck is not active in the fields of immunoglobulins, in vivo diagnostics and sera.
(8) In April 1992 the US Federal Trade Commission approved a joint venture between PMsv's indirect subsidiary, Connaught Laboratories Inc. and Merck for the research, development and marketing of new multivalent (i.e. a combination of several antigens in one vaccine) paediatric vaccines in the United States of America. The parent companies will distribute the vaccines for the JV by way of co-promotion: Merck distributes the vaccines to managed health care organizations and Connaught Laboratories Inc. to private paediatricians. The parties have also entered into similar co-promotion agreements for their existing paediatric vaccines.
C. The products (9) The business of the JV will relate to human vaccines, specific immunoglobulins, in vivo diagnostics, sera and such additional products as the partners may from time to time determine. This Decision does not cover such additional products.
1. The non-vaccine products (10) The specific immunoglobulins transferred by PMsv to the JV are rabies and tetanus immunoglobulins, which are life-saving products. These products are routinely administered with the vaccine after an animal bite or a wound. The diagnostics refer strictly to a tuberculin-test used in connection with PMsv's tuberculosis BCG vaccine. Sera are very minor products (ECU [. . .] (9) turnover in the EEA with 11 sera) which PMsv continues to provide for public health reasons. The most important product group within this operation, and the only one on which both PMsv and Merck are active, relates to human vaccines.
2. Characteristics of the vaccines sector 1. Vaccine R & D (11) The importance of vaccination for public health is generally recognized (10). However, vaccines are currently available for only a minority of the diseases for which they are required. R & D efforts for the development of new vaccines and vaccine technology are thus continuing and may be guided by reference to epidemiological studies. Just as for pharmaceuticals, however, R & D remains a complex, costly, long-term enterprise that requires large teams and multi-disciplinary approaches. The cost of development of a new product is very high (11) owing to enforced safety regulations and controls, risk of claims for damages and expensive clinical trials. Fundamental research, increasingly based on biotechnology and in particular recombinant DNA technology, is often conducted by specialized companies, scientific institutes or universities, which protect their research results through patents, the rights to which are then licensed to vaccine manufactures in return for royalty payments.
(12) Another objective is the combination of several existing vaccines into new multivalent vaccines. The R & D efforts involved here relate to the reformulation of each antigen, so that it can be effectively used in combination with the other antigens. With the exception of the combination of an inactivated vaccine with a live vaccine, all sorts of combinations are in theory possible (12).
(13) In the area of paediatric (obligatory or recommended) vaccinations, the development of a series of vaccine combinations, including any of DTP (diphtheria/tetanus/pertussis), HIB, polio and Hepatitis B - the so-called 'ideal children's vaccines' - is a generally recognized priority. The benefits of such, ideally heat-stable, vaccines would include: fewer injections; fewer clinic visits; increased family acceptance, resulting in better coverage; cost savings with regard to necessary supplies (e.g. needles, syringes, vials), cold chain storage space and administration by medical personnel; greater ease of delivery; simplified record keeping and more efficient post-administration monitoring services.
(14) The vaccine manufacturers consider that the ideal antigens for these combinations should be based on an improved, so-called acellular, pertussis antigen; an injectable polio antigen and a recombinant Hepatitis B antigen. As regards pertussis, this is the result of perceived side effects with whole cell pertussis. These perceived effects are the reason why immunization against pertussis in the form of DTP, despite decades of experience to back it up, is currently not in general paediatric use in Italy and Denmark. As regards polio, the vaccine used for general immunization in almost all countries is in oral form and based on an attenuated virus. For a multivalent, an injectable polio vaccine is required. Currently, only PMsv and RIVM (the Dutch Public Health Institute) produce, based on their proprietary know-how, an injectable polio vaccine, based on a killed virus. If vaccinated with a killed virus, the possibility that a healthy child might develop the disease following vaccination is totally excluded. As regards Hepatitis B, a plasma-based vaccine (such as the one previously produced by PMsv), is no longer approved by health authorities in view of the blood-related risks.
2. Vaccine production (15) Production of vaccines is a complex process involving growth of the cell culture, purification of the bulk vaccine, formulation, filling and packaging of the product. This process is often subject to proprietary know-how and may even be, as is the case with Hepatitis B production, patent-protected. The manufacturing facilities are controlled and qualified by the national regulatory authority according to the legal standards and provisions of the country where the production is located (including good manufacturing practice). As the regulatory qualification of the manufacturing facilities is part of the authorization of the vaccine product itself, a change of production facility or even change in production process will or may require the undergoing of new qualification and licensing procedure for the vaccine. Therefore even vaccine companies with worldwide activities manufacture all their products in one place where the national production qualification is recognized by the relevant authorities in all the countries in which the vaccine is to be distributed. Furthermore, in contrast to pharmaceutical products, in some countries vaccines need, in view of their biological nature and the inherent risks in such products of batch failures, a batch release from the relevant national control laboratory for each batch.
3. Vaccine distribution (16) Vaccine companies distribute their products in the EEA on a country-by-country basis, because of national differences (in spite of technical harmonization achieved so far) relating to:
- epidemiology: e.g. HIB vaccine is in paediatric use mainly in northern Europe; Hepatitis B is in paediatric use mainly in southern Europe,
- immunization schemes: in particular, vaccination with certain vaccines may be compulsory in certain countries, but only recommended in other EEA countries; even the time schedules for identical vaccines vary from country to country for some paediatric vaccines (the tuberculosis vaccine BCG, DTP and polio vaccines),
- pharmacovigilance (i.e. the observation of unexpected effects of vaccination) and, in some countries, batch release requirements which need to be fulfilled on a national level,
- the widely varying price and reimbursement mechanisms: in some EEA countries vaccination is free of charge for some or all vaccines, whereas in other countries patients receive a partial or complete reimbursement,
- differences in the demand structure: in the Nordic countries, the Netherlands and Greece the supply of vaccines is virtually exclusively generated by public health institutes who either produce their own vaccines or purchase products in bulk or finished form through public tenders (in Iceland, Norway and Finland these institutes still have an import monopoly); in Ireland, Italy, Spain and the United Kingdom vaccines are purchased mainly through public tenders, but the doctors choose the vaccine they prescribe from a range of recommended available vaccines; in other EEA countries, chiefly France and Germany, vaccines are to a large extent supplied to the private market and distributed via wholesalers to pharmacies or directly to hospitals and (in the case of Germany), doctors; vaccine manufacturers therefore require a sales force to market successfully their products in these countries,
- differences in national preferences as to the presentation forms of vaccines, such as, e.g. vials, single-dose, multi-dose, multi-chamber syringes (13).
(17) These varying characteristics result in significant differences, from vaccine to vaccine, and from country to country.
This can be illustrated by reference to the three largest national markets in the EEA: France, Germany and Italy, each of which accounted for sales of about ECU 130 million in 1992. In Italy, the only country with a recommended general paediatric vaccination against Hepatitis B, sales of this vaccine alone totalled over 50 % of total sales, whereas there were virtually no sales of HIB vaccines. This last vaccine was in turn the most important vaccine in Germany with its sales amounting to about 25 % of total vaccine sales. Sales of flu vaccines in Germany were worth about ECU 15 million (12 % of total sales). In France, Hepatitis B and flu vaccines represented sales of over ECU 35 million each (giving each over 25 % of total sales).
3. The position of the parties on the vaccine markets 1. General overview (18) Merck's European vaccine portfolio consists of MMR and its individual and bivalent components, HIB, Hepatitis B and pneumococcus (14). Despite entering the European vaccine markets as early as the beginning of the 70s, Merck only has staff dedicated to vaccines in the Netherlands and Spain (between one and three in each case) and a small group (less than 10) in Germany. Its Hepatitis B vaccine is promoted in Italy by its general hospital sales force. Merck thus works almost exclusively via independent distributors and public health institutes for the distribution of its vaccine portfolio in Europe. The distribution of this complete portfolio occurs in only one EEA country, Germany, where the vaccines are distributed by Behring. Sales in Germany represented in 1992 almost 50 % of Merck's vaccine sales in the EEA totalling ECU 43,9 million (i.e. only 2,3 % of Merck's total combined turnover of all products in the EEA). Another 30 % of total sales was accounted for by Hepatitis B vaccine sales in Italy. No vaccine was distributed in France.
(19) PMsv has a much larger vaccine operation in the EEA. In 1992 it offered some 40 vaccine combinations against some 20 diseases. The distribution of these vaccines occurs predominantly via its own subsidiaries or via the Nordic, Dutch and Greek public health institutes (see recital 16). Independent distributors play a role only in Germany (Roehm for the Connaught vaccines), Portugal, Greece and Ireland and, for its flu vaccine only, throughout the EEA. PMsv is thus present in all EEA countries. Nevertheless, PMsv's vaccine sales are concentrated in certain countries. France accounted for over 50 % of PMsv's total vaccine sales in the EEA. In 1992, PMsv was the only producer of all vaccines offered in France with the exception of flu (where its products - distributed by PMsv itself and other independent distributors - commanded over 90 % of the market) and Hepatitis B (where it accounted for over 50 % of the market, SKB accounting for the remaining part). In particular for paediatric vaccination (DTP, polio, BCG, HIB and MMR), where 3 000 French paediatricians (3 % of French doctors) prescribe almost half of these vaccines, PMsv was in a very strong position, partially owing to its ability to offer the complete paediatric range which relieved the prescribing doctors of the need to maintain distribution relationships (information exchange including medical representation visits, use of refrigerator, discounts) with more than one producer.
United Kingdom sales accounted for almost 20 % and German sales for almost 10 % of PMsv's total turnover. PMsv does not have (as will be explained below) a Hepatitis B vaccine for offer outside France, or a widely accepted MMR vaccine (rentals 22 to 24).
2. Product portfolio overlap (a) Existing products (20) The parties' existing products' portfolio shows an overlap for HIB, MMR (and its monovalent components), Hepatitis B, and pneumococcal vaccines.
(21) PMsv supplies two different HIB vaccines, its own product and the product originating from its Canadian subsidiary, Connaught Laboratories Inc., which was the first such vaccine launched in EEA markets in 1990. This is now marketed under two different brands. Merck's HIB vaccine entered the first EEA markets in 1991. The HIB vaccine is mainly used as a paediatric vaccine to prevent one of the forms of meningitis.
(22) As regards MMR, clinical studies have showed increased side-effects for the mumps strain used by SKB and PMsv. This has led SKB to withdraw its mumps and MMR products from all EEA markets, whilst PMsv currently offers them only in France (15), Italy and Greece. This leaves Merck as the only producer with widely accepted mumps and MMR vaccines (Berna, another Swiss-based competitor, is currently registering its MMR in Greece and Austria). The MMR market is an important one with sales in 1992 totalling over ECU 40 million in six Community countries (Germany, Italy, France, United Kingdom, Spain and Belgium), out of a total of almost ECU 45 million for the complete MMR family in these countries. It is estimated that an improvement of the mumps strain will take between three to five years.
(23) The Hepatitis B vaccine is no longer produced on a plasma basis, in view of the blood-related risks. All current formulations are produced by way of genetic engineering. This is, however, subject to different patent claims. There is, furthermore, considerable uncertainty as to the legal validity and precise scope of the different patent claims for Hepatitis B vaccine technology. Some patent applications have yet to be granted, and some of them may either be opposed or have already been partly or entirely revoked or are under appeal. For this reason, Merck and SKB decided to enter into cross-licensing arrangements in relation to rights which had been licensed by several research institutions to them. This cross-licence does not allow these parties to sub-license their acquired rights to other companies whereas a sub-licence to an affiliate such as a JV is allowed. Other producers which would like access to the patent rights involved, in order to avoid uncertainty and costs of litigation, therefore need at least a sub-licence of both Merck and SKB under their respective rights. Apart from Merck and SKB, Hepatitis B vaccines are also offered by Berna and the United Kingdom company, Medeva. Berna has received from Teijin, a Japanese producer, distribution rights for its Hepatitis B vaccine for Switzerland (where it is already on sale), Portugal, Spain, Italy and Greece. Medeva is at present appealing against a judgment of the United Kingdom High Court which found that its product infringed Biogen's patent (licensed to SKB).
(24) PMsv is licensed to sell its recombinant Hepatitis B vaccine as a monovalent in France, but not outside France. Moreover, it does not have the licences to include its Hepatitis B in a multivalent (even in France). Furthermore, PMsv believes that it would be unlikely to obtain a registration for its recombinant (monovalent) Hepatitis B vaccine outside France, [. . .].
(25) Currently, the pneumococcal vaccine is prescribed in order to prevent pneumococcal pneumonia in patients, in particular those who are immunocompromised (notably, patients whose spleens have been removed) or who have chronic conditions which make them particularly at risk for pneumococcal pneumonia, such as chronic obstructive pulmonary disease, heart disease, or liver disease. As a group, they are generally older adults.
Although the size of this target group is potentially large, the use of the vaccine has remained controversial. This is illustrated by the fact that, although the vaccines have been commercially available since the mid-70s in Europe and North America, the combined turnover in all EEA countries is estimated to total only about ECU 1,1 million, France being the largest single market with an estimated turnover of about ECU 500 000 (in some countries where the vaccine is sold it is even not registered, but provided on a 'named patient' basis). It should be noted that pneumococcal vaccine is different from the pneumococcal conjugate vaccine currently under development. This latter vaccine is expected to be used in infants and children to prevent a type of meningitis and inner ear infections. There is virtually no overlap of the target groups, or in the technology.
(b) Future vaccines (26) Each of the parties is active in R & D work for a series of vaccines, but their R & D pipeline for vaccines in later stages of development currently overlaps only as regards a Hepatitis A and a varicella vaccine for use in normal children. Their pre-clinical trial research overlaps only as regards a pneumococcal conjugate vaccine. Furthermore, Merck has no acellular pertussis, or injectable polio vaccine research programme.
3. Geographical specifications (a) Germany (27) At present both PMsv and Merck have monovalent HIB, measles and rubella vaccines on sale in Germany. The most important, in terms of turnover, of these markets is the monovalent HIB market which totalled sales of over ECU 30 million in 1992, of which vaccines belonging to PMsv or its Canadian subsidiary Connaught Laboratories Inc. realized about 75 % and the Merck vaccine, introduced in 1992 and distributed by Behring, about 10 %. The only other competitor is LPB which also introduced its vaccine in 1992 and achieved a market share of about 15 %.
However, the parties have, by agreement of 26 May 1994 (16), granted Behring an exclusive licence under the HIB patents and know-how to manufacture (and distribute) Merck's monovalent HIB vaccine for sale in Germany. The licence enables Behring to establish its own manufacturing facility, or to arrange for the manufacture to be subcontracted to Merck or to a licensee in the Community of Merck or the JV.
(28) The monovalent rubella market has an estimated 1992 turnover of about ECU 2,5 million and totalled over 400 000 doses (17). The bulk of the rubella vaccine is however sold as part of the MMR market which realized a turnover of more than ECU 20 million. The parties' monovalent rubella vaccines accounted for almost 95 % of the number of doses sold [. . .]. The remaining vaccines were sold by SKB and Wellcome, both internationally operating vaccine producers.
(29) The parties have a combined share of some 60 % [. . .] of the German monovalent measles market with a turnover in 1992 of less than ECU 300 000, the remaining market share realized with SKB's vaccines. The bulk of the measles vaccine is equally sold as part of the MMR vaccine.
(b) Greece (30) At present, both parties still sell their MMR vaccines, each via an independent distributor, on the Greek market. Their vaccines are the only ones currently sold in Greece with a total turnover in 1992 of less than ECU 700 000 [. . .]. Berna, a Swiss-based vaccine producer, is however registering its MMR vaccine in Greece.
(c) Portugal (31) On the Portuguese pneumococcal vaccine market, with a total turnover (ex factory prices) of less than ECU 3 000, the parties offered the only vaccines in 1992. However, none of the two vaccines is registered in Portugal, sales being made on a 'named patient'-basis as a service.
(d) France (32) The parties have granted (18) to Pierre Fabre, by agreement of 30 June 1994, distribution rights for France to Merck's MMR and its individual and bivalent components. These rights are exclusive, except for the JV or its French affiliate in regard to MMR, monovalent mumps and bivalent measles/mumps. Pierre Fabre has the option of using Merck's trademarks in France for MMR, monovalent mumps and bivalent measles/mumps, or of using its own trademarks. Pierre Fabre agrees that, for the duration of the agreement, which is for 10 years with the option (at the sole discretion of Pierre Fabre) of further five-year prolongations, it will not engage in activities with regard to competing products.
(33) Also by agreement of 30 June 1994 Pierre Fabre received an exclusive licence under the HIB patents and know-how to manufacture Merck's monovalent HIB vaccine for sale in France. This licence enables Pierre Fabre to establish its own manufacturing facility, or to arrange for the manufacturing to be subcontracted to Merck or to a licensee in the Community of Merck or the JV. The rights granted to Pierre Fabre shall not affect the right of the JV or its French affiliate to sell Merck's monovalent HIB vaccine in France, should any regulatory or medical problems arise in connection with the monovalent HIB (PRP-T) vaccine presently marketed by PMsv in France. The duration of the licence is 10 years with further five-year prolongations at the sole discretion of Pierre Fabre.
(e) Nordic EFTA countries (Iceland, Norway, Sweden and Finland) (34) PMsv's and Merck's HIB vaccines do not currently actively compete on the Nordic EFTA countries monovalent HIB markets. However, in 1991 and 1992 in Sweden and in 1992 in Norway, their vaccines were the only HIB vaccines sold, with 1992 sales totalling about ECU 4 million in Sweden and over ECU 1 million in Norway (PMsv's HIB vaccines accounting for some 90 % of these sales). However, the Swedish association of paediatricians recommended PMsv's PRP-T HIB vaccine for the general vaccination of infants in Sweden during 1993 and 1994. This recommendation, together with a clinical trial lasting from 1993 until May-June 1994 on 50 % of Swedish new born children involving PMsv's HIB vaccine, has led to Merck's vaccine almost disappearing from the market during 1993 and 1994. Statens Bakteriologiska Laboratorium, until June 1993 the holder of an import monopoly on vaccines, was the distributor of Merck's vaccine in Sweden and also offered it to the Norwegian State institute, but entered in June 1993 into a [. . .] supply agreement with PMsv.
(35) Nevertheless, in May 1994 the parties signed a letter of intent with Orion (19) whereby they agreed to enter into negotiations to grant Orion an exclusive licence to manufacture Merck's monovalent HIB vaccine for sale in the Nordic EFTA countries. Such a licence would have been along the same lines as the one entered into with Pierre Fabre for France. However, Orion informed the parties on 13 June 1994 that, after thoroughly investigating every possibility to introduce the vaccine in the Nordic countries, they had decided to turn down this offer. The parties indicated that the offer remains valid for other interested third parties.
D. The notified operation (36) Objectives and business scope of the JV
The primary purposes and objectives of the JV are:
- the creation and development of new multivalent vaccines which would result in significant public health benefits as indicated in recital 13,
- the distribution of existing (and new) products in countries where they are not yet marketed (or would not be were it not for the creation of the JV),
- future research in (i) new vaccines, concentrated on specific European requirements (with respect to epidemiological and/or biological characteristics of the vaccines, adapted dosages, combinations or traditionally preferred delivery systems), from post-clinical phase II onwards; and (ii) related new technologies such as, e.g. the improvement or elimination of preservatives, improved vectors/new delivery systems (oral delivery), DNA/RNA-based research.
The business scope of the JV will be to facilitate the research of, oversee the development of, register, arrange for the manufacture (in principle by either PMsv or Merck) of, distribute, market and sell in the EC and EFTA vaccines, immunoglobulins, in vivo diagnostics, sera and such additional products as the partners may from time to time require.
(37) Transfer of the existing business to the JV
The JV will be set up in the form of a 'Société en nom collectif' (SNC) under French law, capitalized with FF 265 million by Merck's French subsidiary (Merck Sub), but on closing Merck Sub and PMsv will each hold a 50 % ownership. The SNC assembly of partners will be composed of two voting members representing the parent companies. Day-to-day activities will be managed by the gérant in the form of a French 'Société anonyme à directoire et conseil de surveillance' in which each parent will have an equal shareholding and equal representation.
Each party will transfer to the JV its existing product registration rights and will exclusively license to the JV the existing patents and the know-how owned by or licensed to it, except for any rights retained (i) to permit the continued manufacture of products solely for sale to the JV in the territory and (ii) for sale for use outside the territory (20), and except for rights of third parties existing prior to the JV. All other existing product rights such as copyrights, trade dress and tradenames will be licensed or transferred to the JV.
In addition PMsv will transfer or license certain tangible assets, its 'fonds de commerce' and the capital stock of certain of its subsidiaries. Each parent will also transfer to the JV its respective rights and obligations under distribution agreements with third parties, except for the agreements between Merck and Behring, its German distributor, with whom the JV concluded the Behring Agreements.
(38) New vaccines
Each parent agrees, subject to third party rights, to transfer or license to the JV the product rights (other than registrations) necessary to market the pipeline products (i.e. those vaccines which are at a late development stage) in any country of the territory as they arise, or, at the option of the JV, to render all reasonable assistance to enable the JV to obtain these rights in its own name. If the JV elects to commercialize such a product, the originating party will permit the JV to obtain product registrations for the product in the territory, subject to retention of such registrations as the originating party may require to continue to manufacture such product solely (i) for sale for use outside the territory, or (ii) for sale to the JV for use within the territory. If the JV elects not to bring such a product on the market, it may transfer or license the product rights (except for a product containing Merck's Hepatitis B) to a third party. If the JV pursues the development, it will fund and direct the post-phase II testing and post-launch development studies used to support the registration and marketing of the product in the territory. The patents and know-how resulting from development work funded by the JV shall belong to the JV for the territory, whereas the party engaged in the relevant development work outside the territory shall own the patents and know-how there.
As regards products at an early development stage (the future pipeline products), the originating party will at the commencement of post-phase II testing, offer the product to the JV. If the JV accepts the product, the JV will receive an exclusive licence, subject to third-party rights in the territory, for the product rights. The mechanism for product registration, sharing of development costs and intellectual ownership is identical to that for pipeline products. If the JV does not want to bring the product on the market, it is the originating party which may transfer or license all rights to a third party in the territory on terms no more favourable than those offered to the JV.
A development committee will be assembled in order to formulate, implement and direct the R & D strategy of the JV and the parents for the benefit of the JV in the territory.
The development committee shall:
- oversee communications regarding the R & D activities of the parents undertaken for the JV, including communications concerning discoveries,
- oversee the development of JV multivalent products,
- identify the most efficient utilization of the available resources of the parents for such development activities, and also identify the appropriate multivalent products for development,
- advise the management bodies of the JV.
All patents and know-how resulting from development work funded by the JV with respect to multivalent products shall belong to the JV, provided that the parents shall each be granted a non-exclusive, worldwide, royalty-bearing licence.
(39) Other arrangements
Administrative and support services (including accounting, treasury, management information, currency hedging and other financial services, legal, medical and regulatory services) may be provided by each of the parents on a cost basis.
Merck and PMsv will each supply, on a cost basis, the JV's requirements of existing products, the rights to which the parent transferred or licensed to the JV, and future products with respect to which the parent is the originator, and these the JV will either sell (as monovalent) or include in multivalent products. PMsv will, for so long as it has the capacity and can do so at a competitive cost, complete the finishing of the JV's multivalents unless all components come from Merck. The JV shall have the right to audit all these costs every two years. In the event that the JV determines that the costs are not reasonable, it may procure the relevant services (if permissible under the terms of patents/licences relating to such products) from the other or a third party, provided that this is on substantially more advantageous terms than the existing party is willing to offer.
Connaught Laboratories Inc. shall grant the JV an exclusive (subject to any third party rights) licence for the territory of product rights to its future products for a term of 30 years, which agreement shall terminate in the event that Connaught ceases to be a PMsv affiliate. The JV shall manage the existing distribution arrangements of Connaught in the territory and, at the option of the JV, shall serve as Connaught's distributor for its existing products, subject to any third-party rights.
(40) Duration
The agreement shall terminate automatically at the end of the year 2023 unless extended by mutual consent in writing.
However, Merck has the right to sell its interest at any time after 2001, with PMsv having the first option to purchase.
(41) Non-competition
The parents agree not to sell or supply, nor to license to a third party, prior to termination, a JV product or a competing product for use in the territory.
Merck will not, for a period of five years following the sale of its interest, sell, supply or license to a third party a JV product sold by the JV prior to the sale of the Merck interest or a competing product.
None of the parents will solicit an employee of the JV to leave the JV for three years after the termination of the JV or the sale of its interest.
E. The Behring agreements (42) Behring
Behring is a subsidiary of the German chemical concern Hoechst AG and a producer and distributor of pharmaceutical products (therapeutical and diagnostical). Behring realized in 1992 a worldwide turnover of ECU 632,6 million of which less than 20 % is accounted for by vaccine sales. These vaccine sales were concentrated in Germany. A very substantial part of its German sales was with products of other producers, mainly Merck (distributor for pneumococcal, MMR and HIB, agent for Hepatitis B). This makes Behring currently the most important vaccine manufacturer and distributor in Germany accounting in 1992 for almost half of the turnover realized on the German vaccine markets. Outside Germany, Behring is not active in the EEA with the exception of its flu vaccine which is distributed in France by Cassenne, another subsidiary of Hoechst AG.
(43) Continuation of the distribution of Merck's existing vaccines (other than HIB - see recital 27) and co-promotion of some future JV vaccines
Until 2004 Behring will be, in Germany, subject to any rights of third parties:
- the exclusive but for the JV (i.e. the sole) distributor of Merck's existing MMR (and its components) and pneumococcal vaccines; these vaccines each account for at least 40 % of the German markets,
- the sole agent for the distribution of Merck's existing Hepatitis B vaccine; Behring will sell in its own name, but for the account of the JV, this vaccine which commanded about half of the German Hepatitis B market in 1992,
- the exclusive co-promoter of the JV's future varicella, MMR varicella and Hepatitis A vaccines. A co-promotion agreement is an agreement whereby one party (the co-promoter) lends its marketing force to promote, as regards the medical profession a product of the originating party, which party retains the final responsibility as to price, quality standards, and quality and quantity of promotional efforts to be dedicated to its products.
Behring will have the right to make sales outside Germany in response to unsolicited requests. If Behring distributes a product of a third party competing to any of these vaccines, Behring's appointment will become non-exclusive for that vaccine.
(44) Development by Behring of multivalents (21)
The parties have entered into a set of agreements with Behring under which Behring has the option to procure from the JV its requirements for HIB, acellular pertussis and/or Hepatitis B antigens for inclusion in multivalents to be developed by Behring for sale in Germany (with the right to make sales outside Germany in response to unsolicited requests). This right lasts until 2004, but should Behring develop a multivalent at any time before that date, the right to procure the JV's antigens for that particular multivalent shall last for a minimum of five years from its first marketing and in any event until 2004. This development work will be on the basis of a Multivalent Technology Transfer Licence Agreement enabling Behring to use, sell, make or have made Behring multivalents under the licensed technology. The JV is obliged not to license other undertakings to exploit the licensed technology, defined as 'multivalent know-how' (22), in Germany.
In view of the Hepatitis B patent situation (see recital 23), Behring's rights with respect to multivalents developed by it containing Merck's Hepatitis B antigen are limited to the use and sale of these products. The trademark and the product registrations of such vaccines will be owned by the JV; Behring will produce such vaccines as a subcontractor for the JV.
This agreement gives Behring the opportunity to develop a distinct set of multivalents for sale in Germany, based on its own antigens, JV antigens and/or third party antigens. Behring is also free to exploit outside Germany its own severable intellectual property rights created in developing a multivalent containing an antigen of the JV.
F. Third parties' observations (45) The Commission has received comments on the notified operation, the essential content of which was published pursuant to Article 19 (3) of Regulation No 17, from LPB and SKB, two companies that are in competition on some of the markets involved with the notifying parties. LPB objected to the Commission's intention to exempt the JV (23) in view of the oligopolistic nature of the European vaccine markets where, according to LPB, three companies account for close to 90 % of sales of paediatric vaccines and the JV would immediately have an overall market share (paediatric and all human vaccines) of close to 70 % in the Community.
(46) LPB believes that the JV will have a detrimental effect on the future structure of competition as the combination of the resources of the parties will severely hinder the ability of other companies to enter the market for, especially, the new paediatric multivalent products. LPB considers that the development of a paediatric hexavalent containing DTP, HIB, Hepatitis B and polio vaccines, will have a dramatic effect on sales of the monovalents included so that companies, including LPB, which do not have access to Hepatitis B due to the, according to LPB, exceptionally broad patents, will face a severe threat to their ability to remain on the vaccines markets. LPB considers access to the Hepatitis B antigen as crucial in view of the already current paediatric vaccination against Hepatitis B in Italy, Spain and Portugal and the acknowledgment by all public health administrations in northern Europe that the spread of the Hepatitis B virus cannot be effectively controlled through the vaccination of so-called adult high-risk groups so that these administrations intend to recommend paediatric vaccination if the incremental cost is in relation to its benefits.
(47) The launch of the hexavalent vaccine will, according to LPB, be a spur to universal immunization against Hepatitis B (as the precedent of MMR shows), and LPB believes that there is no reason why the current schedule for the application of Hepatitis B should not be altered once the hexavalent product is available.
(48) LPB therefore argues that the Commission is under an obligation to take measures to ensure that the likelihood of effective competition from third parties in multivalent vaccines is maintained and argues that the agreements with Behring do not provide an adequate remedy for the negative effect of the JV on competition in the future markets for multivalent vaccines as, on the contrary, the agreements remove Behring as an important possible partner for other manufacturers who might be forced to seek alliances to survive once confronted with the market power of the JV. LPB thus concludes that the Commission, if it would exempt the JV, should require the JV to supply Hepatitis B to LPB, as one of only two global vaccines manufacturers in addition to the JV.
(49) The Commission obtained from the notifying parties, in reaction to LPB's comments, some factual clarification. The parties confirmed that Italy was the only country with a general paediatric recommendation for Hepatitis B vaccination; in Spain the vaccine is recommended for infants by six of the seventeen regional health authorities (of which only two put the recommendation into practice), and one other regional authority purchases the vaccine despite not officially recommending it; in Portugal the vaccine is to be made available free to 11- to 13-year old adolescents (rather than for infants).
(50) The Commission also received observations from SKB, like the parties to the JV, a global vaccines producer. SKB has summarized its observations as follows:
- the competitiveness of Community vaccine producers depends upon innovation, and access to new technologies and vaccine components,
- the activities of the JV appear to be limited to marketing and distribution, with some ancillary administrative functions: on this basis SKB does not believe that the JV will become a new competitive, innovative force in vaccine markets,
- the wide scope (extending to all of Merck's and PMsv's current and future vaccine technologies) of the JV is such that the normal competitive processes in the vaccines markets in Europe, which ensure access to technology, are likely to be restricted,
- the duration of the arrangements is considerably longer than is usual or necessary for a distribution JV; SKB therefore believes that the Commission should retain an ability to review the effect of the JV on competition in vaccine markets at a later date,
- there are unlikely to be improvements to technology or production resulting from the formation of the JV; the improvements in distribution (despite the undertakings given by the parties in relation to Germany and France) are not likely to be substantial,
- cooperation arrangements could enable Merck and PMsv to collaborate productively for a limited period of time to bring needed combination products to the paediatric vaccine market. However, SKB believes that the terms of the JV go beyond what is reasonably necessary in this respect and may prevent competitors from bringing innovative new products to the market place, to the detriment of the public.
(51) In view of SKB's observation concerning access to vaccine technology, the parties amended their exclusive patent and know-how licences for the EEA to the JV by explicitly allowing the JV to sub- and or cross-license these intellectual property rights for the development and/or manufacture in the EEA of existing and future vaccines to other manufacturers.
II. LEGAL ASSESSMENT A. Article 85 (1) of the EC Treaty and Article 53 (1) of the EEA agreement 1. Agreement between undertakings (52) PMsv and Merck are undertakings within the meaning of the Articles 85 (1) of the EC Treaty and 53 (1) of the EEA Agreement. The set of agreements, most of them dated 25 May 1993, whereby the parties will organize their existing activities in the human vaccine business within a territory being defined as the EC and the EFTA, through a jointly-controlled company and the ancillary agreements which were also notified, are agreements within the meaning of Articles 85 (1) of the EC Treaty and 53 (1) of the EEA Agreement.
2. Relevant market 1. Relevant product market (53) Each vaccine ensuring immunity against a specific disease forms a different product market. From the viewpoint of the consumer, no substitutability exists between vaccines protecting against different diseases. Furthermore each vaccine presents specific characteristics in respect to its development and production. Different technologies are used to develop and produce vaccines, the production itself is subject to specific regulatory requirements.
(54) For these same reasons multivalent vaccines are also considered as belonging to a different product market than the equivalent monovalent vaccines. Although the launch of a multivalent may have, when it is accepted by the health authorities/ medical community (24), the effect of replacing part of the equivalent monovalents, this is not sufficient to consider both products as belonging to the same product market. Indeed, the consumer/prescriber adopts relatively quickly a distinct usage whereby the multivalent is preferred for general immunization whereas the monovalents are mainly used for either brush-up immunization or as a booster for non-protected persons (and also retained by the producer in order to cope with possible adverse reactions to some antigens included in the multivalent). Examples of such processes are to be found in past experience with DTP and MMR multivalents.
2. Relevant geographical market (55) At present, different conditions of competition prevail in the EEA countries in respect to the distribution of vaccines for the reasons laid down in recital 16. Another factor is the traditional preference for the national producer, which is often closely related to the State. For these reasons, and because it cannot be expected that the conditions of competition relating to, especially, epidemiology, the national legal frameworks and medical tradition, will change in the near future, the geographical markets are still national. Past experience with DTP and MMR has also shown this to be the case for multivalents.
3. Restrictions of competition 1. Between the parties (56) The parties transfer, by the different mechanismus described at Section D - The notified operation - to the JV their European distribution network, their existing European vaccine portfolio, their European-oriented R & D activities from post clinical phase II onwards and the resulting new vaccines and vaccine technology. This transfer has been strengthened by the non-competition obligations summarized in recital 41. In doing so, the parents eliminate competition on the European vaccine markets between themselves in so far as the parties are to be considered as actual or potential competitors.
a) Actual competition (57) The parties are currently in competition with each other on five vaccine markets (see recitals 27 to 31). The creation of the JV will lead to an appreciable restriction of competition only on the German monovalent rubella and measles markets (see recitals 28 and 29). With regard to the Greek MMR market (recital 30), it has already been noted that, even though both parties are currently selling their vaccines in Greece, the side effects noted with the mumps strain used by PMsv (see recital 22), may lead PMsv, possibly upon insistence of the national health authorities, to withdraw its MMR vaccine. The elimination of this already weakened actual competition through the creation of the JV can therefore not be considered as an appreciable restriction of competition. However, the reasons why potential competition on this and other national MMR markets is restricted, are stated in recital 60.
(58) With regard to the German monovalent HIB market, the licence described in recital 27 will result in a competitive situation on the relevant market whereby Merck, via its distributor Behring, will be replaced by Behring which will now be able to act as an independent competitor on the market. The fifth market on which the parties' vaccines are currently both available is the Portuguese pneumococcal market (see recital 31). This market is characterized by an extremely limited total turnover (less than ECU 3 000). This is a consequence of the absence of an economically viable market potential for these vaccines, e.g. the lack of any registration of the products. All sales now occur, in the absence of distribution efforts taken by the manufacturers, upon specific request from the doctor, so-called 'named patient' sales. In view of both the possibility for doctors of buying this vaccine from any other competitor who offers it somewhere in the EEA, and the marginal importance of this market, the creation of the JV will have no appreciable effect.
(b) Potential competition (i) Existing products (59) In view of the patent situation for Hepatitis B recombinant vaccines (see recitals 23 and 24), PMsv is not in a position to market, without the risk of litigation, this vaccine outside France. PMsv is therefore not considered as a potential competitor on the other EEA markets. This conclusion is strengthened by PMsv's belief that, in view of the characteristics of its product, it would be unlikely to obtain a registration outside France. Merck possesses all the necessary patent licences and its product could be registered in all EEA countries. In view of the Hepatitis B market potential in France, where 1992 sales totalled about ECU 40 million (i.e. almost as much as Merck's total turnover in the EEA), Merck has to be considered as a potential market entrant on the French market, even taking into account the French preference for a pre-filled syringe (see footnote 1 on page 5). The creation of the JV will thus lead to an appreciable restriction of competition on the French Hepatitis B market.
(60) With regard to the MMR market, it is considered that, in the absence of the JV, PMsv would have engaged in R & D to ameliorate its mumps strain so that it could have re-entered the MMR markets in three to five years, given the existing substantial demand for this multivalent vaccine. Merck's mumps strain is, as indicated in recital 22, currently the only one which is widely accepted. Therefore Merck can, in view of the limited distribution efforts currently needed, be considered as a realistic market entrant in all EEA MMR (25) markets where it is currently not established. The creation of the JV will thus lead to an appreciable restriction of competition on the MMR markets in all EEA countries since PMsv will not need to develop an improved MMR vaccine to compete with Merck's vaccine.
(61) The monovalent HIB vaccine has, in view of the epidemiology (see recital 16), only a limited market potential in Italy, Spain, Portugal and Greece where in 1992 no or almost no sales occurred. Merck's vaccine was sold in 1992 only in Germany (26), Sweden, Norway (27) (where sales were made by independent distributors) and in Spain (28). Furthermore, the JV has granted a manufacturing licence for Merck's monovalent HIB vaccine to an independent third party in France (recital 33). This party (Pierre Fabre) can decide, even if it would appoint Merck or another licensee as its subcontractor for the production of the vaccine, the basic commercial terms such as quantity, price and promotion. In all other EEA countries, Merck has no own vaccines sales force (see recital 18) and its product is not yet registered in Denmark, Ireland and Austria. In view of the presence of other vaccines (notably from PMsv and LPB) on these markets, the current level of demand for this vaccine and in the absence of circumstances which would lead to a specific request for Merck's product, it cannot be expected that Merck would enter these markets (i.e. the monovalent HIB markets in all EEA countries except Italy, Spain, Portugal, Greece, Germany and France). This conclusion is corroborated by the impossibility of finding an independent third party to (re-)introduce, by way of a manufacturing licence, the vaccine in the Nordic EFTA countries (recitals 34 and 35). The creation of the JV will not, therefore, result in a restriction of competition on the monovalent HIB markets.
(62) The creation of the JV is not considered to lead to an appreciable elimination of competition on the pneumococcal markets. Both parties sell it in some EEA countries, but not in all. Potential entry in the other countries is not realistic, in view of the limited turnover and market potential for this vaccine on these markets (see recital 25).
ii) Future monovalents (63) As regards future products in an advanced stage of clinical trials ('pipeline products'), it is realistic to assume that the parties, in view of their past performance, financial strength and existing vaccine knowledge, can be considered as potential competitors for these new monovalents for which their actual R & D portfolio shows an overlap: Hepatitis A and varicella. The creation of the JV will result in an appreciable restriction of competition on these European vaccine markets, as it is the JV which will take over the post phase II clinical trials and which will distribute the final products.
(64) An assessment of the restriction of competition between the parties for other new monovalent vaccines in earlier stages of R & D ('future pipeline products') is far more difficult, in view of the extremely broad range of such future research and the lack of precise indications as to the chances of bringing successful products to the markets. Furthermore, the parties remain autonomous in their basic R & D decisions and on the way in which they will allocate their respective budgets, particularly with respect to the early phases of clinical work, and especially fundamental basic research (or the buying in of such basic research undertaken by specialized institutes) which is far from market-oriented. However, within the Development Committee of the JV (see recital 38), the R & D activities of the parents, including communications concerning discoveries, will be discussed. It cannot be excluded, therefore, that these discussions will lead to the coordination of the basic R & D, which has already been triggered, with regard to paediatric multivalents, by the other JV between the parties in the United States of America (recital 8). In view of the parties' important position on the vaccine markets (worldwide presence, R & D budget), this coordination is likely to have an appreciable effect on R & D for future pipeline products in the EEA.
(iii) Multivalents (65) The multivalents which could be developed are specified in recitals 12, 13 and 14. The parties' own product portfolio (i.e. their existing vaccines/antigens and the antigens in an (advanced) stage of development) would allow them both to develop an MMR varicella multivalent. Merck already disposes of a MMR vaccine, and PMsv would have improved its vaccine (see recital 60). Furthermore, both have a varicella vaccine for use in normal children at a late stage of development (recital 26).
(66) However, their own product portfolio does not overlap for any of the other possible combinations so that both parties could not have formulated any of these multivalents alone. In particular with regard to the possible paediatric combinations, including DTP acellular, injectable polio, HIB and Hepatitis B (recitals 13 and 14), the only antigen to which both have access is HIB.
(67) It is accepted that, in the absence of the JV, Merck could have theoretically obtained bulk supplies of the only vaccine which can be considered as a commodity product: DTPwholecell. Despite the current success of e.g. PMsv's DTPwholecell-HIB combination in Germany, it appears that, if Merck were to start a development programme on the basis of such bulk supplies, the resulting vaccine would be likely to come to the market at a time when some other competitors would already possess the more performant multivalents based on the acellular pertussis antigen. It can thus be concluded that this is not an economically viable course of action.
(68) It is, furthermore, not accepted that the parties could be considered as potential competitors for the development of these multivalents simply because of their ability to obtain access to the missing antigens via licences to proprietary know-how and/or patents, and possibly bulk supplies, from other manufacturers. Some of the potential antigens are not yet developed (Hepatitis C and E, most meningitis antigens). For the remaining antigens, and in particular DTPa, HIB and Hepatitis B, this is not a viable course of action.
It is not obvious that such licences would be granted, in view of their inherent complexity (the safety/stability problem for these relatively 'new' antigens when they are to be included in multivalents might give rise to serious liability risks). Furthermore, contractual relations with more than one manufacturer are required. And, in addition to the formal licence (and possibly bulk supply), there is a need for ongoing cooperation between the specialists of the originating parties when the antigens are 'blended' into multivalents involving a continuous, wide-ranging exchange of information on the basis of a trust relationship between different R & D teams.
Therefore, this course of action does not constitute a workable and flexible enough alternative to develop the wide range of different multivalents adapted to the needs of different European countries (e.g. in view of epidemiology, health policy approach and traditional preferences), which the JV intends to launch on the EEA markets.
(69) It can thus be concluded that the creation of the JV will result in an appreciable restriction only on the MMRvaricella multivalent markets.
2. Effects of the creation of the JV as regards third parties (a) Existing and imminent vaccines and vaccine technology (70) According to the notified agreements, the parent companies cannot supply or license their vaccines and vaccine technology to third parties for use in the EEA other than through the JV. Since the JV combines the individual parents' portfolios, the primary effect of the JV in relation to other producers results from the JV's increased sourcing autarky in relation to existing and imminent antigens ('pipeline products') and vaccine technology. Other producers will, in view of these arrangements, be limited in their possibilities to collaborate either with the parent companies or with the JV as a source for them to get access to their 'missing' antigens or vaccine technologies (delivery systems, vaccine combination technology, . . .). This outside sourcing could become important for the development of multivalents, and in particular for some of the paediatric combinations. Given the position of the parties on the relevant markets, this will result, as regards existing and imminent vaccine technology, in an appreciable restriction of competition towards third parties.
(b) Future vaccines and vaccine technology (71) In assessing the effects of the creation of the JV as regards other producers in relation to future antigens and vaccine technology, reference has to be made to the wide range of diseases against which vaccines could be developed and, if successful, lead to considerable sales opportunities, e.g. Hepatitis C, herpes or AIDS. Furthermore, no single firm can be considered, in view of the related costs (estimated cost of between US$ 100 to 200 million to bring a new vaccine to the market), to be capable of covering all these fields. Moreover, it is not only the limited number of vaccine producers with a European presence which at present spend, on a worldwide basis, more than ECU 25 million a year on vaccine related R & D (PMsv, SKB (29), Merck and LPB) that are able to engage in such research. Other producers, even those public and private 'national' companies, currently concentrating on the bulk paediatric markets (DTPwholecell, oral polio) recognize the importance of the costlier, more recent DNA-related research for the development of new vaccines. They can therefore, given the presence of numerous specialized companies, scientific institutes or universities engaged in basic biotechnology research, also be considered as potential competitors for some future vaccine markets.
There are, therefore, in view of the number of potential competitors for the wide range of future vaccines and vaccine technology, no indications that the creation of the JV will lead to appreciable restrictions of competition by reducing the sourcing-out possibilities of third producers for future vaccines and vaccine technology.
3. Restrictions of competition resulting from the Behring agreements (72) The continuation of the sole distribution agreements for Merck's MMR (and its components) vaccines (see recital 43) restricts intra-brand competition for these products in Germany in so far as the JV is prevented from appointing further distributors. This is considered an appreciable restriction of competition in view of the important market position of the existing Merck-origin vaccines (market shares of at least 40 % in 1992). As Behring is currently the leading vaccine producer/distributor in Germany, the agreement may also have an appreciable effect on inter-brand competition on these markets as Behring could only take up distribution of a competing brand whilst losing its exclusive right. The same can, however, not be said for the pneumococcal vaccine in view of its limited market potential (Merck's transfer price-revenue is below ECU 15 000 per year).
(73) The continuation of the 'sole' agency agreement for Merck's Hepatitis B vaccine (see also recital 43) also restricts intra-brand competition for this product in so far as the JV is prevented from appointing further agents, and has an equally restrictive effect on inter-brand competition as indicated for MMR above. The agreement is therefore also considered to constitute an appreciable restriction of competition.
(74) The appointment of Behring as exclusive co-promoter, except for prior existing third party rights, along with the JV in Germany for the JV's future Hepatitis A, varicella and MMR varicella vaccines (see also recital 43) is not considered to constitute an appreciable restriction of competition. It does not limit the JV's ability to appoint other independent distributors for the products, nor would it prevent Behring distributing competing products. As Behring has no established loyalty towards the medical community for these (future) products, it cannot be said that this last possibility is unrealistic.
(75) The exclusive (but for the JV) licence by the JV to Behring under the Multivalent Technology Transfer Licence Agreement relating to the multivalent know-how with respect to the JV's monovalent HIB antigen of Merck origin, acellular pertussis and Hepatitis B antigens, allowing Behring to make (except for multivalents containing Hepatitis B - see rectital 44), use and sell Behring multivalents in Germany constitutes, in view of the marketing potential of such multivalents, an appreciable restriction on competition in Germany as other vaccine producers will not be able to receive from the JV such a licence to make, use and sell multivalents based on the JV's key antigens in Germany.
(76) The granting of the exclusive patent, know-how and trademark licence by the JV to Behring for the manufacture and distribution of Merck's monovalent HIB vaccine in Germany constitutes, in view of the market share of this vaccine in Germany, which was about 10 % in 1992, an appreciable restriction of competition, as Merck and the JV can neither grant licences or other vaccine producers nor manufacture or distribute the product for active sale in Germany themselves.
4. Restrictions of competition resulting from the agreements with Pierre Fabre (77) The granting of the exclusive patent and know-how licence by the JV to Pierre Fabre for the manufacture and distribution of Merck's monovalent HIB vaccine in France constitutes, in view of the market potential of this vaccine in France, an appreciable restriction of competition, as Merck and the JV can neither grant licences to other vaccine producers nor manufacture or distribute (unless regulatory or medical problems arise in connection with the monovalent HIB vaccine presently marketed by PMsv in France) the product for active sale in France themselves.
(78) The exclusive (except for the JV or its French affiliate in regard to MMR, monovalent mumps and bivalent measles/mumps) distribution rights to Merck's MMR and its monovalent and bivalent components which are granted to Pierre Fabre for France constitute, especially in view of the market potential of Merck's MMR and monovalent mumps vaccine in France, an appreciable restriction of competition, as other vaccine distributors will not be able to distribute the products in France.
4. Appreciable effect on trade between Member States and Contracting Parties (79) The creation of a JV in which two out of the three leading worldwide vaccine producers bring together their total European vaccine business as from post phase II R & D until distribution, has, in view of the parties' actual and potential strength in vaccine R & D, production and distribution, an appreciable direct influence on the pattern of trade between Member States and Contracting Parties on those actual and/or future markets where the creation of the JV results in an appreciable restriction of competition.
(80) The Behring Agreements and the agreements with Pierre Fabre have an appreciable effect on trade between Member States and Contracting Parties as, by limiting the scope of the rights to the active marketing of the products in Germany and France respectively, the agreements render more difficult the unrestricted flow of trade which the Treaty and the EEA Agreement intend to create.
5. Conclusion (81) The creation of the JV between PMsv and Merck falls foul of Article 85 (1) of the EC Treaty and Article 53 (1) of the EEA Agreement in respect of its effects on the German monovalent measles and rubella markets; the French Hepatitis B market; the MMR, MMR varicella, varicella, and Hepatitis A markets; and, as far as future pipeline products are concerned, in the field of R & D. In view of its effect on third parties, the JV and related agreements are restrictive on competition in so far as they limit to an appreciable extent the access of competitors to existing and imminent vaccines and vaccine technology, in particular for paediatric combinations.
The distribution agreements for the MMR (and its component) vaccines in Germany and France, the German Hepatitis B agency agreement, the Multivalent Technology Transfer Licence Agreement, and the HIB manufacturing licences with Behring and Pierre Fabre also fall foul of Articles 85 (1) of the EC Treaty and 53 (1) of the EEA Agreement.
B. Article 85 (3) of the Treaty and Article 53 (3) of the EEA agreement 1. The JV 1. Improvement of production or distribution, promotion of technical or economic progress (a) Promotion of technical progress (82) Through the JV the parties will discuss their experience regarding their R & D activities, cooperate with regard to the development activities from post phase II clinical trials for 'European'-oriented (30) vaccines, and put their existing antigen and vaccine technology portfolio at its disposal to allow the JV to develop new and more performant vaccines which can, in view of the information inflow from a distribution network (31) covering all EEA countries, be adapted to the specific needs of each individual country. By avoiding R & D overlaps and benefiting of the parties' respective strengths, this will lead to a qualitative promotion of technical progress. An indication of such improvements can be given by reference to the following expamples:
(83) The development of multivalent vaccines is, as indicated in recital 13, a generally recognized priority in view of the numerous advantages it would have for immunization (fewer injections, clinic visits and medical administration/costs, increased family acceptance, leading to a better coverage rate). All leading medical authorities have repeatedly argued for the development of paediatric multivalents combining DTP, polio, HIB and Hepatitis B. The JV will be able to start a development programme for such combinations as it will be the first vaccine producer to possess all the necessary antigens. Furthermore, it has the ability to adapt the combinations to specific national vaccine needs. This is important in view of the epidemiological differences between the EEA countries and the traditional preferences for the way in which the antigens are currently made available. Such specific combinations, which the JV is in a position to bring to the market sooner than would have been possible otherwise, will thus realize an important technical progress.
(84) Also in the field of monovalent vaccines the JV will, through the pooling of its experience and know-how, stimulate technical progress by bringing new and more performant vaccines to the market. This can by illustrated by reference to a varicella vaccine. PMsv possesses an existing vaccine for immunocompromised children only and its vaccine for normal children is in clinical phase II to III (registration expected for 1996); Merck already has in the United States of America a varicella vaccine for use in normal children at a final stage of registration. However, Merck's vaccine needs storage in a freezer, a facility not common in the European vaccine distribution chain. However, it is estimated that due to a combination of Merck's vaccine and PMsv's stability factor allowing storage in a refrigerator (4 °C), a vaccine for normal children will be available sooner in the EEA than would have been the case in the absence of the JV.
This varicella vaccine will also be used for the development of a unique European MMR varicella vaccine involving PMsv's measles (32), Merck's mumps and the joint rubella strain.
(85) Another similar example is related to the future pneumococcal conjugate vaccine where the parties estimate that their vaccine will contain serotypes of both parents in order to optimize protection against the major strains of pneumococcus that causes meningitis, pneumonia and otitis media (inner ear infection) and whereby protein carriers (the medium) of both parties will be used for the conjugation. The JV's vaccine will thus have potentially fewer adverse effects (protein carrier technology), will be more directed to European epidemiology (serotypes-choice) and will be developed and made available sooner than without the JV.
(86) Advantages for technical progress are also expected in the development of new technologies to be used in overall vaccine production such as the improvement or elimination of preservatives, improved vectors/new delivery systems (oral delivery), DNA/RNA-based research, and so forth.
(b) Improvement in distribution (87) As indicated in recital 18, Merck has, despite entering the EEA markets more than 20 years ago, a very limited presence, with the only notable exception being Germany. The JV will be based on PMsv's existing comprehensive distribution network, and will be able to assure a better coverage of Merck's existing (and future) vaccines throughout the whole EEA.
(88) As far as the specific French market is concerned, the manufacturing licence for Merck's monovalent HIB vaccine and the distribution rights for MMR (and its mono- and bivalents) granted to Pierre Fabre, establish another vaccine distributor in France. Pierre Fabre has, with the beginning of a paediatric vaccine product range, the possibility of taking up the distribution of other vaccines of other vaccine producers in France, a market with a paucity of (independent) distributors (see recital 19). As in this way a barrier to entry for, especially paediatric, vaccine distribution in France is removed, these agreements between the JV and Pierre Fabre may not only lead to an improvement in distribution for these vaccines but also for other, especially paediatric, vaccines.
2. Benefits to the consumer (89) Achieving the above-indicated technical progress and improvements in distribution responds to a genuine public health concern. Numerous organizations, including the World Health Organization and the European Parliament, have underlined the benefits of accurate, stable and easy-to-administer vaccines for public health, and therefore also for consumers.
(90) The JV will, as stated above, be able to stimulate and speed-up the development of new vaccines, both mono- and multivalents, adapted to the needs of each EEA country. Furthermore, all the existing and future vaccines will be available throughout the EEA. By providing, sooner than otherwise might have been the case, an increased range of existing and future mono- and multivalents throughout the EEA, the consumer is allowed a fair share of the resulting benefits.
3. Indispensability (91) In order to develop (paediatric) multivalents, a vaccine producer either has to have access to all the required antigens (as both PMsv and Merck for the MMR varicella), or he needs to develop possible synergies with other producers (as almost all other producers for the paediatric hexavalent). Any other partnership than that between themselves would have required PMsv and Merck to conclude agreements with more than one producer in view of the lack of similar synergy possibilities for, at least, a pediatric hexavalent. Even if a cooperation network, limited to an exchange of licences and bulk supplies, between multiple partners would have been possible, this is considered as too rigid to achieve the ambition of the JV, i.e. the development of the wide range of multivalents, adapted to the needs of different European countries. Therefore one requires more open-ended and far-reaching cooperation, able to adapt to unforeseen or new circumstances resulting from the continuous exchange of information between the parties. It is believed that only a JV provides a mechanism which is flexible enough to achieve this.
In addition, a JV is the only legal alternative which allows, as indicated in recital 23, to share the totality of its Hepatitis B patent rights with PMsv. The fact that the parties can share all their intellectual property rights facilitates the realization of (paediatric) multivalents on the basis of the Hepatitis B antigen.
As it is the ambition of the parties to develop a wide range of multivalents adapted to the needs of all EEA countries, the development of paediatric multivalents containing Hepatitis B is, in view of the epidemiology of Hepatitis B in southern Europe, crucial.
(92) Furthermore, it is indispensable that the scope of the JV should be extended beyond the development of (paediatric) multivalent vaccines. Only a JV structure is flexible enough to enable all future opportunities to be taken into account, thus promoting the development of new monovalents and vaccine technology. In addition, it is feared that even the development of multivalents would be hampered in view of (i) the impossibility of separating from multivalent development work the vaccine research needed to support other key programmes such as the involvement in new preservatives, the planning of research of new antigens to be included in new combinations and the collaboration in research for new delivery systems and vectors, and (ii) the inherent reluctance to brief a partner on the above points which contain proprietary know-how, as they have an importance outside the mulivalent range.
(93) Furthermore, it is indispensable for a proper functioning of the JV and for the achievement of all advantages that the scope of the JV is extended to the joint distribution of the existing and future vaccines by the JV. This conclusion is based upon the following considerations:
- the restrictions of competition resulting from joint distribution are, as indicated above, extremely limited. This is a consequence of the weak presence of Merck in Europe,
- it is not realistic to assume that Merck would have developed either (a) its own Europe-wide distribution network as:
(i) Merck has, unlike a newcomer on the European vaccine markets such as LPB, no paediatric pharmaceutical sales force to build on;
(ii) for Merck's subsidiaries the vaccines business is of a relatively minor importance (2,3 % of their total sales) with all the consequences this has on the group-internal investment priorities;
(iii) physical distribution of vaccines requires considerable investment in a cold chain, or (b) extend distribution relationships with multiple independent third parties in view of the limited results achieved in the past 20 years (with the notable exception of Germany),
- there are only a limited number of vaccine distributors with a European-wide presence with whom Merck could have concluded an overall distribution agreement, notably PMsv and SKB,
- the alternative of a distribution agreement is not much less restrictive than a JV, and joint distribution facilitates the functioning of the JV by enabling Merck to divulge fully its R & D and production techniques to its partner as it, by the joint distribution, also fully benefits from the commercial advantage of its partner's strong own distribution network.
(94) Specific indications why joint distribution in the vaccine sector facilitates cooperation in R & D and production are:
- marketing plans for a vaccine are made at a very early stage, at the same time as one is engaged in R & D of the products, in particular by reference to epidemiological studies, which are used to orientate both R & D and clinical trials activities, and in turn for the subsequent marketing of the final products,
- pharmacovigilance (i. e. the observation of unexpected effects of vaccination) involves identification of significant health issues to enable any adverse health risks to be rectified; in the absence of joint distribution, the R & D and production teams would have to rely on two sets of data for identical products, creating, apart form duplication of efforts, a further burden on required shifts in R & D and production,
- batch release: the biological nature of vaccines and the inherent risks in such products of batch failures, requires a constant interface between manufacturing and distribution teams. In some EEA countries, the distribution team needs a release from the relevant national control laboratory for each batch, whereas this requirement does not apply for pharmaceutical products; batch release thus creates a daily interdependence between both teams,
- national distribution preferences need to be taken into account for the presentation forms of vaccines (and thus their development), such as e. g. vials, single-dose, multi-dose, multi-chamber syringes.
4. Elimination of competition (95) It is not considered that the creation of the JV will lead to an elimination of competition on the vaccine markets of the EEA. The reasons for this conclusion are the following:
a) Individual vaccine markets (96) In view of SKB's current share of the French Hepatitis B market (which is over 30 % and increasing), the creation of the JV does not lead to an elimination of competition on that market. The same is true for the German monovalent measles market where SKB commanded about 40 % of the market in 1992. Competition on the German monovalent rubella market is not eliminated either in view of (i) the presence of two internationally operating vaccine producers (SKB und Wellcome), who despite a market share of less than 10 % remain a competitive force on the market able to develop further their position, and (ii) the increased intra-brand competition between the JV and Behring (the most important vaccine distributor in Germany (33).
(97) With regard to the MMR multivalent, Merck's vaccine is indeed currently the only widely accepted vaccine. However, just as PMsv would have, in the absence of the JV, improved its mumps strain (recital 60), the other vaccine producers and in particular SKB are also likely to update their mumps strain and re-enter these markets. Furthermore, another competitor, Berna, which is currently registering its MMR in Greece und Austria, uses another mumps strain and therefore has the potential to increase penetration in EEA countries other than those where it is currently available. Therefore, there remains effective potential competition.
(98) With regard to future markets, the following observations can be made: SKB currently has the only Hepatitis A vaccine registered and commercially available (since 1991) in Europe, Berna has a product on clinical trials in Germany and Biocine-Sclavo's product is awaiting registration; SKB already has a varicella vaccine on the market for immunocompromised children (e.g. PMsv's existing vaccine) and is active with R & D to adapt the product for healthy children. From the above considerations it can be concluded that SKB also has the potential to develop a MMRV aricella vaccine.
(b) Overall market structure (99) The creation of the JV does not constitute an insurmountable barrier for other producers to enter future vaccine markets. The Commission has found no indication of a future vaccine market where competition would be eliminated as a result of this European JV. In particular with regard to the future paediatric hexavalent containing DTPa, polio, HIB and Hepatitis B, the creation of the JV will not bring about a change in the market structure. Only Merck and SKB were, in view of the Hepatitis B-patent situation (recital 23), in a legally secure position to bring such an hexavalent on the European markets. As a result of the creation of the JV, it is now the JV and SKB which are in a position to do so. Furthermore, it cannot be concluded, on the basis of the information at the disposal of the Commission, that SKB's possibility to develop such a hexavalent is purely theoretical.
(100) Furthermore, LPB's argument that the position on the vaccine markets of producers (such as itself) who currently market as a monovalent one of the antigens included in the hexavalent, is threatened, cannot be accepted. This alleged threat is based upon the presumption that the sales potential of the hexavalent (which the JV, contrary to LPB, is able to develop in view of its access to all the required antigens) will be such that sales of all other mono- or multivalents which do not combine all of the hexavalent antigens (e.g. DTPa, HIB, DTPa-HIB, DTP-polio, . . .), will not remain possible on economical viable terms.
(101) First of all, for the reasons stated in recital 54, the mono- or limited multivalents, belong to a different market than the possible paediatric hexavalent. These other vaccines will thus continue to be sold in those countries which might use the paediatric hexavalent for general immunization, albeit in a more limited number of doses, for either brush-up immunization or as a booster for non-protected persons.
Furthermore, the Commission does not consider, on the basis of the actual information in its possession, that the paediatric hexavalent will be used in all EEA countries. Whilst the availability of such a hexavalent would realize a highly desirable objective for public health, the health authorities/medical community of a particular country or region will only accept the hexavalent for general immunization if (i) the hexavalent responds to the relevant epidemiology, which, as indicated in recital 16, is different in the EEA for at least two of the components, HIB and Hepatitis B; (ii) the hexavalent can be fitted into the vaccination schedules, which continue to differ to a large extent for the two other components, polio and DTP, and (iii) the traditional attitudes towards immunization against a particular antigen, e.g. the 'negative' attitude in Denmark and Italy toward pertussis; or the strong preference for oral polio vaccination in almost all countries are surmountable.
2. The Behring agreements and the agreements with Pierre Fabre 1. Distribution of MMR (and pneumococcal) vaccines (102) The agreements whereby the JV agrees with Behring and Pierre Fabre to supply the MMR (and its mono- and bivalent components) vaccines for resale within Germany and France respectively only to Behring and Pierre Fabre respecitively fulfil the conditions laid down by Commission Regulation (EEC) No 1983/83 of 22 June 1983 on the application of Article 85 (3) (34) of the Treaty to categories of exclusive distribution agreements (35) so that these agreements are exempted pursuant to the Regulation. The Behring agreement in relation to the pneumococcal vaccine would, if it had been considered to fall foul of Articles 85 (1) of the EC Treaty and 53 (1) of the EEA Agreement, also be exempted pursuant to the Regulation.
2. The agency agreement for Hepatitis B vaccine (103) The 'sole' agency agreement is considered to fulfil all the requirements laid down in Articles 85 (3) and 53 (3) for the granting of an individual exemption. The agreement will lead to an improvement in distribution because the JV is able to concentrate its sales activities, and it does not need to maintain numerous business relations with a larger number of dealers and is able, by dealing with only one dealer, to overcome more easily the distribution difficulties that exist in the German vaccine sector, resulting from linguistic, legal, and other differences relating, e.g. to medical tradition. The agreement facilitates the continued promotion of sales and is indispensable to intensive marketing and to continuity of supplies while at the same time rationalizing distribution. Consumers are allowed a fair share of the resulting benefit as German prescribers/doctors benefit via Behring's know-how and experience of an established information exchange network, which is concentrated on the specific German market. As there is another producer on the market and parallel imports and exports of the JV's product remain possible, competition is not eliminated.
3. The multivalent technology transfer licence (104) The set of agreements regulating the cooperation between the JV and Behring as to the development of Behring multivalents and in particular the multivalent technology transfer licence agreement is a pure know-how licensing agreement, containing ancillary provisions relating to trademarks or other intellectual property rights, to which only two undertakings are party as laid down in Article 1 (1) of Commission Regulation (EEC) No 556/89 of 30 November 1988 on the application of Article 85 (3) (36) of the EC Treaty to certain categories of know-how licensing agreements (37).
(105) The agreement contains the following obligations as referred to by Article 1 (1) of the Regulation:
(1) an obligation on the JV not to license other undertakings to exploit the licensed technology in the licensed territory;
(3) an obligation on Behring not to exploit the licensed technology outside Germany, i.e. in territories within the common market which are reserved for the JV;
(5) an obligation on Behring not to pursue an active policy of putting the Behring multivalents on the market outside Germany, and in particular not to engage in advertising specifically aimed at those territories or to establish any branch or maintain any distribution depot there as Behring only has the right to make sales outside Germany in response to unsolicited requests;
(7) an obligation on Behring to use for Hepatitis B multivalent products (i.e a Behring multivalent containing the JV's Hepatitis B antigen) a trademark owned by the JV (the product registration for these products will also be owned by the JV).
(106) Despite the fact that the agreement does not contain any other obligations to which Article 3 of the Regulation would apply (38), the agreement cannot benefit from the block exemption solely because of the fact that the agreement lasts for a period which might be longer than the 10 years allowed under Article 1 (2) in those circumstances where Behring would benefit from the provision that the right to procure the JV's antigens and know-how for a particular Behring multivalent shall last, beyond 31 December 2003, for a minimum of five years from its first marketing.
(107) However, the possibility for Behring to start, due to the multivalent technology licence, development work for multivalents based on antigens of its own, the JV and/or a third party, will possibly lead to another series of multivalents which would constitute an important element of technical progress on the German vaccine markets. The fact that the agreement guarantees a minimal commercialization period of five years for each Behring multivalent so developed, and therefore does not benefit from the know-how block exemption, does not exclude the granting of an individual exemption in this case, as the agreement thus provides a further incentive for Behring to continue its R & D work for the creation of such multivalents, until the end of the year 2003.
(108) The Behring agreements are beneficial to the consumer as the multivalent technology licence agreement may lead to a second source of multivalents based on some of the JV's key antigens in Germany coming on the market, even at the end of 2003. In so far as the agreement allows Behring to exploit its own severable intellectual property rights, created in developing a multivalent containing an antigen of the JV, ouside Germany, this agreement might also lead to benefits to public health in the other EEA countries.
(109) The possible extension beyond the 10 year duration of the know-how block exemption in the case of some individual Behring multivalents is indispensable as without this possibility for Behring, it would not actively pursue new developments during the last couple of years before the normal end of the agreement, 31 December 2003.
(110) And, as at least both the JV and SKB are in a position to develop a competing range of multivalent, competition is not eliminated on the German markets.
4. The HIB manufacturing and distribution licensing agreements (111) These agreements have been entered into by the parties to the JV with Behring and Pierre Fabre respectively, following intervention by the Commission, and contribute to the maintenance of effective competition on the German and French monovalent HIB markets.
(112) Without the agreement with Behring, competition on the German momovalent HIB market would be substantially reduced, as the parties to the JV would command control of three (PMsv's, Connaught Laboratories Inc's and Merck's) out of the four HIB vaccines offered in Germany, amounting to 85 % of the market. The granting of the exclusive manufacturing license to Behring, an independent vaccine producer and distributor, enables Behring to determine, in the short and long term, strategic decisions relating to price, quantities and distribution efforts devoted to the HIB vaccine of Merck origin. By permitting Behring to operate as an independent competitor on the German HIB market, the agreement contributes to an improvement in distribution while allowing consumers a fair share of the resulting benefit. As the exclusive nature of the licence is indispensable to allow Behring to operate as a viable source on the market and thus restores the competitive situation on the German monovalent HIB market, the agreement fulfils all the requirements laid down in Articles 85 (3) of the EC Treaty and 53 (3) of the EEA Agreement for the granting of an individual exemption.
(113) The agreement with Pierre Fabre for the French monovalent HIB market equally fulfils all the requirements for the granting of an individual exemption, for reasons similar to those indicated above. Not only does it contribute to the entry of a competitor to the French monovalent HIB market where currently PMsv's HIB vaccine is the only one offered, but it may also contribute to the entry of other vaccines to the French markets, particularly paediatric ones, as indicated in recital 85.
D. Duration (114) Pursuant to Article 8 (1) of Regulation No 17, an exemption shall be issued for a limited period.
In view of the fact that (i) the JV agreement will not terminate automatically before the end of the year 2023; (ii) that the Commission retains an ability to review the actual effect of the JV on competition in vaccine markets; (iii) that account has to be taken of the characteristics of the agreement and of the fact that the nature of the markets involved means that it takes a longer time before the advantages of the cooperation can be fully realized, e.g. the R & D work leading to the bringing of a new vaccine on the market usually takes in excess of 10 years, the Commission concludes that an exemption until 31 December 2006 is appropriate.
In the meantime, the Commission will follow closely the evolution of the different vaccine markets on which the JV will operate; in this context the Commission will take into account the information which the parties undertook to provide on an annual basis (see recital 3),
HAS ADOPTED THIS DECISION:
Article 1
1. The provisions of Article 85 (1) of the Treaty and Article 53 (1) of the EEA Agreement, pursuant to Article 85 (3) and Article 53 (3) respectively, are hereby declared inapplicable to the set of agreements whereby Pasteur Mérieux Sérums et Vaccins and Merck & Co. Inc. will organize their existing activities in the human vaccines, immunoglobulins, in vivo diagnostics and sera businesses within a territory being defined as the EC and EFTA, through a jointly-controlled company, Pasteur Mérieux MSD SNC (the JV).
2. The provisions of Article 85 (1) of the Treaty and Article 53 (1) of the EEA Agreement are, pursuant to Article 85 (3) and Article 53 (3) respectively, hereby also declared inapplicable to the agency agreement for Hepatitis B vaccine, the multivalent technology transfer licence, and the HIB manufacturing and distribution licence between the JV and Behringwerke AG.
3. The provisions of Article 85 (1) of the Treaty and Article 53 (1) of the EEA Agreement are, pursuant to Article 85 (3) and Article 53 (3) respectively, hereby also declared inapplicable to the HIB manufacturing and distribution licence agreement between the JV and Pierre Fabre Médicament SA.
4. The exemption shall apply until 31 December 2006.
Article 2
This Decision is addressed to the following undertakings:
1. Merck & Co. Inc.,
One Merck Drive,
Whitehouse Station,
USA - New Jersey 08889-0100;
2. Pasteur Mérieux Sérums et Vaccins,
Avenue Leclerc 58,
BP 7046,
F-69348 Lyon.
Done at Brussels, 6 October 1994. | [
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COMMISSION REGULATION (EC) No 64/2007
of 25 January 2007
fixing the export refunds on cereal-based compound feedingstuffs
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 september 2003 on the common organisation of the market in cereals (1), and in particular Article 13(3) thereof,
Whereas:
(1)
Article 13 of Regulation (EC) No 1784/2003 provides that the difference between quotations or prices on the world market for the products listed in Article 1 of that Regulation and prices for those products within the Community may be covered by an export refund.
(2)
Commission Regulation (EC) No 1517/95 of 29 June 1995 laying down detailed rules for the application of Regulation (EC) No 1784/2003 as regards the arrangements for the export and import of compound feedingstuffs based on cereals and amending Regulation (EC) No 1162/95 laying down special detailed rules for the application of the system of import and export licences for cereals and rice (2) in Article 2 lays down general rules for fixing the amount of such refunds.
(3)
That calculation must also take account of the cereal products content. In the interest of simplification, the refund should be paid in respect of two categories of ‘cereal products’, namely for maize, the most commonly used cereal in exported compound feeds and maize products, and for ‘other cereals’, these being eligible cereal products excluding maize and maize products. A refund should be granted in respect of the quantity of cereal products present in the compound feedingstuff.
(4)
Furthermore, the amount of the refund must also take into account the possibilities and conditions for the sale of those products on the world market, the need to avoid disturbances on the Community market and the economic aspect of the export.
(5)
The current situation on the cereals market and, in particular, the supply prospects mean that the export refunds should be abolished.
(6)
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 compound feedingstuffs covered by Regulation (EC) No 1784/2003 and subject to Regulation (EC) No 1517/95 are hereby fixed as shown in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 26 January 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 January 2007. | [
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COUNCIL DECISION
of 21 June 1989
on the conclusion of a Supplementary Protocol to the Agreement between the European Economic Community and the Kingdom of Norway concerning the elimination of existing and prevention of new quantitative restrictions affecting exports or measures having equivalent effect
(89/546/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas the Agreement between the European Economic Community and the Kingdom of Norway (1), signed in Brussels on 14 May 1973, does not provide for the prohibition of quantitative restrictions affecting exports and measures having equivalent effect;
Whereas it is in the interest of the European Economic Community and the Kingdom of Norway to promote the free circulation of raw materials and goods by abolishing any such restrictions and measures and by preventing the creation of new restrictions or measures affecting their mutual trade;
Whereas it is necessary both to make arrangements for a phased abolition of current restrictions affecting certain products or measures having equivalent effect and to provide for safeguard measures in the event either of re-export towards third countries against which the exporting Contracting Party maintains restrictions or measures having equivalent effect or in the event of serious shortage of a particular product;
Whereas under Article 32 (1) of the Agreement, the Contracting Parties may, in the interest of their economies, develop the relations established by the Agreement by extending it to fields not covered thereby;
Whereas the Commission has held negotiations with the Kingdom of Norway, which have resulted in a Protocol,
HAS DECIDED AS FOLLOWS:
Article 1
The Supplementary Protocol to the Agreement between the European Economic Community and the Kingdom of Norway concerning the elimination of existing and prevention of new quantitative restrictions affecting exports or measures having equivalent effect is hereby approved on behalf of the Community.
The text of the Protocol is attached to this Decision.
Article 2
The President of the Council shall give the notification provided for in Article 4 of the Supplementary Protocol.
Article 3
This Decision shall take effect on the day following its publication in the Official Journal of the European Communities.
Done at Luxembourg, 21 June 1989. | [
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COMMISSION REGULATION (EEC) No 1134/92 of 4 May 1992 fixing the minimum import price applicable to certain types of processed cherries during the 1992/93 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 426/86 of 24 February 1986 on the common organization of the market in products processed from fruit and vegetables (1), as last amended by Regulation (EEC) No 1943/91 (2), and in particular Article 9 (6) thereof,
Whereas, by Council Regulation (EEC) No 545/92 of 3 February 1992 concerning the arrangements applicable to the import into the Community of products originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro (3), and in particular Article 10;
Whereas Council Regulation (EEC) No 3225/88 (4) fixes general rules for the system of minimum import prices for certain processed cherries;
Whereas, pursuant to Article 9 (2) of Regulation (EEC) No 426/86, minimum import prices are to be determined having regard in particular to:
- the free-at-frontier prices on import into the Community,
- the prices obtained on world markets,
- the situation on the internal Community market,
- the trend of trade with non-member countries;
Whereas a minimum import price should be fixed on the basis of the abovementioned criteria for the 1992/93 marketing year for certain types of processed cherries listed in Annex I (B) to Regulation (EEC) No 426/86; whereas the minimum price thus established must apply to the same products originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro, referred to in Regulation (EEC) No 545/92;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Products Processed from Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
Pursuant to Article 9 (1) of Regulation (EEC) No 426/86 and the second subparagraph of Article 5 (2) of Regulation (EEC) No 545/92, for each of the products listed in the Annex to this Regulation, the minimum import price applicable during the 1992/93 marketing year shall be as set out in that Annex.
Article 2
This Regulation shall enter into force on 10 May 1992.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 May 1992. | [
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COMMISSION REGULATION (EC) No 1054/95 of 11 May 1995 amending Regulation (EEC) No 2723/87 laying down special detailed rules for the application of the system of export refunds on cereals exported in the form of pasta products falling within subheadings 1902 11 00 and 1902 19 of the combined nomenclature
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3448/93 of 6 December 1993 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products (1), and in particular Article 8 (3) thereof,
Whereas provision should be made so that pasta products falling within CN codes 1902 11 and 1902 19 and exported to the United States of America are accompanied either by a certificate stating that they are being exported following an inward processing operation or by a certificate stating that they qualify or do not qualify for a rate of refund applicable, in the case of exports to the United States of America, to the basic cereal products used in their manufacture;
Whereas it is necessary to bring up to date the name of the Commission department responsible for receiving from the Member States communications of statistics relating to the quantities of pasta products;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee on horizontal questions concerning trade in processed agricultural products not listed in Annex II,
HAS ADOPTED THIS REGULATION:
Article 1
Commission Regulation (EEC) No 2723/87 (2) is hereby amended as follows:
1. in Article 2 (1), 'Certificate for the export with refund of pasta to the USA` is replaced by the following: 'Certificate for the export of pasta to the USA`;
2. in Article 4, the second paragraph shall be replaced by the following:
'The competent authority shall indicate in the appropriate part of box 10 of the original and copies of the "certificate P2" whether or not the goods qualify for a refund. The customs office referred to in Article 3 (2) shall check that the document is duly completed and shall affix its stamp in box 10 of the original and copies of the "certificate P2".`;
3. Article 6 shall be replaced by the following:
'Article 6 The competent authorities of the Member States shall communicate to the Commission, by the end of each month at the latest, the statistics relating to the quantities of pasta products, by tariff subheading, specifying the quantities which qualify for an export refund and the quantities which do not qualify for an export refund, in respect of which certificates have been stamped in the course of the previous month by the customs offices where the export declarations were accepted, at the following address:
Commission of the European Communities,
Directorate-General III - Industry,
Non-Annex II products,
Rue de la Loi/Wetstraat 200,
B-1049 Bruxelles/Brussel.` 4. Annex I shall be replaced by the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
It shall apply to exports in respect of which the export declaration has been accepted by customs as from 1 July 1995.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 May 1995. | [
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Council Regulation (EC) No 973/2001
of 14 May 2001
laying down certain technical measures for the conservation of certain stocks of highly migratory species
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 37 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Whereas:
(1) The Community has by Decision 98/392/EC(3) approved the United Nations Convention on the Law of the Sea, which contains principles and rules relating to the conservation and management of the living resources of the sea. In the framework of its wider international obligations, the Community participates in efforts arising in international waters to conserve fish stocks.
(2) Pursuant to Decision 86/237/EEC(4), the Community has been a Contracting Party to the International Commission for the Conservation of Atlantic Tunas, hereinafter called "the ICCAT Convention", since 14 November 1997.
(3) The ICCAT Convention provides a framework for regional cooperation on the conservation and management of tunas and tuna-like species in the Atlantic Ocean and adjoining seas by setting up an International Commission for the Conservation of Atlantic Tunas, hereinafter called the "ICCAT", and adopting recommendations on conservation and management in the Convention area which become binding on the Contracting Parties.
(4) The ICCAT has recommended a number of technical measures for certain stocks of highly migratory species in the Atlantic and the Mediterranean, specifying inter alia authorised sizes and weights of fish, and restrictions on fishing within certain areas and time-periods, with certain gears, and on capacity. These recommendations are binding on the Community and should therefore be implemented.
(5) Certain technical measures adopted by the ICCAT were incorporated into Council Regulation (EC) No 1626/94 of 27 June 1994 laying down certain technical measures for the conservation of fishery resources in the Mediterranean(5) and Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms(6). In the interests of clarity, these measures should be brought together in this Regulation and the relevant Articles of the above Regulations should be repealed.
(6) To take into account traditional fishing practice in certain areas, specific provisions on the capture and retention on board of certain tuna species should be adopted.
(7) The Community has by Decision 95/399/EC(7) approved the Agreement for the establishment of the Indian Ocean Tuna Commission. This agreement provides a useful framework for closer international cooperation and rational use of tunas and related species in the Indian Ocean by setting up the Indian Ocean Tuna Commission, hereinafter called the "IOTC", and adopting recommendations on conservation and management in the IOTC area which become binding on the Contracting Parties.
(8) The IOTC has adopted a recommendation laying down technical measures for certain stocks of highly migratory species in the Indian Ocean. This recommendation is binding on the Community and should therefore be implemented.
(9) The European Community has by Decision 1999/337/EC(8) signed the Agreement on the International Dolphin Conservation Program and by Decision 1999/386/EC(9) decided to apply it on a provisional basis pending its approval. The Community should therefore apply the provisions laid down in this Agreement.
(10) The objectives of the Agreement include the progressive reduction of incidental dolphin mortalities in the tuna purse-seine fishery in the Eastern Pacific Ocean to levels approaching zero, by setting annual limits, and the long term sustainability of the tuna stocks in the Agreement Area.
(11) Some provisions of this Agreement were incorporated into Regulation (EC) No 850/98. These provisions should be incorporated into this Regulation.
(12) The Community has fishing interests in the Eastern Pacific Ocean and has applied to accede to the Inter-American Tropical Tuna Commission, hereinafter "IATTC". Pending accession, and in accordance with its obligation to cooperate with the other Parties involved in the management and conservation of resources in this region under the United Nations Convention on the Law of the Sea, the technical measures adopted by the IATTC should be applied by the Community. These measures should therefore be incorporated into Community law.
(13) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(10),
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation lays down technical conservation measures applicable to vessels flying the flag of Member States and registered in the Community, hereinafter referred to as "Community fishing vessels", with regard to the capture and landing of certain stocks of highly migratory species referred to in Annex I.
TITLE I
DEFINITIONS
Article 2
For the purposes of this Regulation, the following definitions of maritime waters shall apply:
(a) Area 1:
all waters of the Atlantic Ocean and adjacent seas covered by the ICCAT Convention as defined in Article 1 thereof;
(b) Area 2:
all waters of the Indian Ocean covered by the Agreement for the establishment of the IOTC as defined in Article 2 thereof;
(c) Area 3:
all waters of the Eastern Pacific Ocean as defined in Article 3 of the Agreement on the International Dolphin Conservation Program.
TITLE II
TECHNICAL MEASURES APPLICABLE IN AREA 1
Chapter 1
Restrictions on the use of certain types of vessels and gears
Article 3
1. During the period 1 November to 31 January in the area specified in paragraph 2, it shall be prohibited for Community fishing vessels to:
- anchor floating objects,
- fish under artificial objects,
- fish under natural objects,
- fish using ancillary vessels,
- throw into the sea artificial floating objects with or without buoys,
- install buoys on floating objects found at sea,
- remove floating objects and wait for the fish attracted by these objects to gather underneath the vessel,
- tow floating objects outside the area.
2. The area referred to in paragraph 1 shall be bounded as follows:
- southern boundary at latitude 4° S,
- northern boundary at latitude 5° N,
- western boundary at longitude 20° W,
- eastern boundary at the coast of Africa.
3. Vessels shall be prohibited from commencing or continuing fishing in the area and during the period specified in paragraphs 1 and 2 without an observer on board.
4. Until 31 December 2002, Member States shall take the necessary steps to appoint observers and ensure that they are placed on board all vessels flying their flag or registered in their territory which are about to undertake fishing activities in the area referred to in paragraph 2.
5. Without prejudice to paragraph 4, Member States shall take the necessary steps to ensure that properly appointed observers remain on board the fishing vessels to which they have been assigned until they are replaced by other observers.
6. The master of a Community vessel operating in the area and during the period specified in paragraphs 1 and 2 shall receive the observer and cooperate with him in the performance of his duties during his stay on board.
The master of a vessel designated to receive an observer on board shall make every reasonable effort to facilitate his arrival and departure. During the observer's stay on board he shall be provided with appropriate accommodation and working facilities.
7. The practical arrangements for paragraphs 4, 5 and 6 shall be as defined in Annex II.
8. Member States shall send the Commission by 1 May each year at the latest a comprehensive report assessing the content and conclusions of the reports of the observers assigned to vessels flying their flag.
9. The period referred to in paragraph 1, the area referred to in paragraph 2 and the arrangements for the assignment of observers set out in Annex II may be amended by the Commission pursuant to ICCAT recommendations which are binding upon the Community and in accordance with the procedure laid down in Article 19(2).
Article 4
1. It shall be prohibited to retain on board any quantity of skipjack, bigeye or yellowfin tuna which are caught using purse seines in waters under the sovereignty or jurisdiction of Portugal in ICES subarea X north of 36°30' N or in CECAF areas north of 31° N and east of 17°30' W, or to fish for the said species in the said areas with the said gears.
2. It shall be prohibited to retain on board tuna caught using drift-nets in waters under the sovereignty or jurisdiction of Spain or Portugal in ICES subareas VIII, IX and X, or in CECAF areas around the Canary Islands and Madeira, or to fish for the said species in the said areas with the said gears.
Article 5
1. Fishing for bluefin tuna with encircling nets shall be prohibited:
- from 1 to 31 May in the Mediterranean Sea as a whole and from 16 July to 15 August in the Mediterranean Sea excluding the Adriatic for vessels operating exclusively or predominantly in the Adriatic;
- from 16 July to 15 August in the Mediterranean Sea as a whole and from 1 to 31 May in the Adriatic for vessels operating exclusively or predominantly in the Mediterranean Sea excluding the Adriatic.
Member States shall ensure that all vessels flying their flag or registered in their territory are subject to the above rules.
For the purposes of this Regulation, the southern limit of the Adriatic Sea shall be a line drawn between the Albanian-Greek border and Cape Santa Maria di Leuca.
2. The use of aeroplanes or helicopters in support of fishing operations for bluefin tuna in the Mediterranean shall be prohibited during the period from 1 to 30 June.
3. Fishing for bluefin tuna in the Mediterranean using surface-set longlines from vessels greater than 24 metres in length shall be prohibited during the period from 1 June to 31 July each year. The applicable length shall be that defined by the ICCAT and given in Annex III.
4. The definition of the periods and areas referred to in this Article and the length of vessels given in Annex III may be modified by the Commission pursuant to ICCAT recommendations which are binding upon the Community and in accordance with the procedure laid down in Article 19(2).
Chapter 2
Minimum size
Article 6
1. A highly migratory species shall be undersized if its dimensions are smaller than the minimum dimensions specified in Annex IV for the relevant species.
2. The dimensions set out in Annex IV may be modified by the Commission pursuant to ICCAT recommendations which are binding upon the Community and in accordance with the procedure laid down in Article 19(2).
Article 7
1. Undersized fish of highly migratory species shall not be retained on board or be transshipped, landed, transported, stored, displayed or offered for sale, sold or marketed. These species shall be returned immediately to the sea.
However, the preceding subparagraph shall not apply to the species referred to in Annex IV caught by accident and which total no more than 15 %, expressed in numbers of individuals, of the quantities landed. In the case of bluefin tuna, that tolerance shall not apply to fish weighing less than 3,2 kg.
2. The release for free circulation or marketing in the Community of undersized fish of highly migratory species originating in third countries shall be prohibited.
Article 8
The measurement of the size of fish of highly migratory species shall be carried out in accordance with Article 18 of Regulation (EC) No 850/98.
Chapter 3
Restrictions on the number of vessels
Article 9
1. The Council, acting in accordance with the procedure laid down in Article 8(4)(i) of Regulation (EEC) No 3760/92(11), shall determine the number and total capacity in gross registered tonnage (GRT) of Community fishing vessels greater than 24 metres in length fishing for bigeye tuna as a target species. These shall be fixed as the average number and the capacity in GRT of Community fishing vessels fishing for bigeye tuna as a target species in Area 1 during the period 1991 to 1992.
2. By 31 January each year at the latest Member States shall forward to the Commission a list of all vessels flying their flag and registered in their territory which intend to fish for bigeye tuna in Area 1 during that year.
3. The lists shall give the internal number allocated to each vessel in the fishing vessel register in accordance with Article 5 of Commission Regulation (EC) No 2090/98(12).
4. On the basis of the information provided by the Member States in accordance with paragraphs 2 and 3 the Council acting in accordance with the procedure laid down in Article 8(4)(ii) of Regulation (EEC) No 3760/92, may distribute among the Member States the number and capacity in GRT determined in accordance with paragraph 1.
5. Before 15 August each year Member States shall send the Commission the list of fishing vessels greater than 24 metres in length fishing for bigeye tuna as a target species. The Commission shall send this information to the ICCAT secretariat before 31 August each year.
6. The list referred to in paragraph 5 shall contain the following information;
- vessel name, registration number,
- previous flag, where applicable,
- international call sign, where applicable,
- vessel type, length and GRT,
- name and address of the vessel owner(s).
Article 10
1. The Council, acting in accordance with the procedure laid down in Article 8(4)(i) of Regulation (EEC) No 3760/92, shall determine the number of Community fishing vessels fishing for North Atlantic albacore tuna as a target species. The number of vessels shall be fixed as the average number of Community fishing vessels fishing for North Atlantic albacore tuna as a target species during the period 1993 to 1995.
2. By 31 January each year at the latest Member States shall forward to the Commission a list of all vessels flying their flag and registered in their territory which intend to fish for North Atlantic albacore tuna as a target species in Area 1 during that year.
3. The lists shall give the internal number allocated to each vessel in the fishing vessel register in accordance with Article 5 of Regulation (EC) No 2090/98.
4. On the basis of the information sent by the Member States in accordance with paragraphs 2 and 3 the Council, acting in accordance with the procedure laid down in Article 8(4)(ii) of Regulation (EEC) No 3760/92, may distribute among the Member States the number of vessels determined in accordance with paragraph 1.
5. Before 15 May each year Member States shall send the Commission the list of vessels flying their flag which carry out directed fishing for North Atlantic albacore tuna. Until 31 December 2001 that list shall not include those fishing vessels carrying out experimental fishing other than by means of drift-nets. The Commission shall send this information to the ICCAT Secretariat before 30 May each year.
Chapter 4
Other measures
Article 11
Member States may encourage the use of monofilament streamer lines on swivels so that live blue marlins and white marlins may be easily released.
Article 12
Notwithstanding Article 31 of Regulation (EC) No 850/98, electric current or harpoon guns may be used to catch tuna and basking shark (Cetorhinus maximus) in the Skagerrak and Kattegat.
TITLE III
TECHNICAL MEASURES APPLICABLE IN AREA 2
Article 13
1. Before 15 June each year Member States shall send the Commission the list of vessels greater than 24 metres in length flying their flag which fished for bigeye tuna, yellowfin tuna and skipjack tuna during the previous year in Area 2. The Commission shall send this information to the IOTC Secretariat before 30 June each year.
2. The list referred to in paragraph 1 shall contain the following information:
- vessel name, registration number,
- previous flag, where applicable,
- international call sign, where applicable,
- vessel type, length and GRT,
- name and address of the vessel owner, operator or charterer.
TITLE IV
TECHNICAL MEASURES APPLICABLE IN AREA 3
Article 14
1. Only Community fishing vessels operating under the conditions laid down in the Agreement on the International Dolphin Conservation Program which have been allocated a DML shall be authorised to encircle schools or groups of dolphins with purse seines when fishing for yellowfin tuna in Area 3.
2. "DML" shall mean the dolphin mortality limit laid down in Article 5 of the Agreement on the International Dolphin Conservation Program.
Article 15
1. Before 15 September each year Member States shall send the Commission:
- a list of vessels flying their flag with a load capacity greater than 363 metric tonnes (400 net tonnes) which have applied for a DML for the whole of the following year;
- a list of vessels flying their flag which are likely to operate in the area in the course of the following year;
- a list of vessels flying their flag which have requested a DML for the first or second half of the following year;
- for each vessel requesting a DML, a certificate stating that the vessel had all the proper gears and equipment to protect dolphins and that its captain had completed an approved training course on rescuing and releasing dolphins.
2. Member States shall ensure that the applications for DMLs comply with the conditions laid down in the Agreement on the International Dolphin Conservation Program and the conservation measures adopted by the IATTC.
3. The Commission shall examine the lists and ensure that they comply with the provisions of the Agreement on the International Dolphin Conservation Program and the conservation measures adopted by the IATTC and shall send them to the Director of the IATTC.
Where this examination reveals that the application does not meet the conditions referred to in this paragraph, the Commission shall immediately inform the Member State concerned that it cannot send all or part of an application to the Director of the IATTC, stating its reasons.
4. The Commission shall send each Member State the overall DML to be distributed among the vessels flying their flag.
5. Each Member State shall send the Commission the breakdown of the DMLs among the vessels flying the flag of that Member State by 15 January each year.
6. The Commission shall send the Director of the IATTC the list and breakdown of the DMLs between Community fishing vessels by 1 February each year.
Article 16
1. The use of ancillary vessels to support vessels fishing with the aid of fish aggregating devices shall be prohibited.
2. Transshipments at sea shall be prohibited.
TITLE V
GENERALLY APPLICABLE PROVISION
Article 17
1. The encircling of schools or groups of marine mammals with purse seines shall be prohibited, except in the case of the vessels referred to in Article 14.
2. Paragraph 1 shall apply to every vessel flying the flag of a Member State or registered in a Member State, in whatever waters.
TITLE VI
FINAL PROVISIONS
Article 18
The measures necessary for the implementation of Article 3(9), Article 5(4) and Article 6(2), shall be adopted in accordance with the regulatory procedure referred to in Article 19(2).
Article 19
1. The Commission shall be assisted by the Committee established by Article 17 of Regulation (EEC) No 3760/92.
2. Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply.
The period provided for in Article 5(6) of Decision 1999/468/EC shall be set at three months.
3. The Committee shall adopt its rules of procedure.
Article 20
1. Articles 24, 33 and 41 of Regulation (EC) No 850/98 and the entries in Annex XII thereto relating to bluefin tuna and swordfish shall be repealed.
2. Articles 3a and 5a of Regulation (EC) No 1626/94, the entries in Annex IV thereto relating to bluefin tuna and swordfish and Annex V thereto shall be repealed.
3. References to the above Regulations, Articles and Annexes shall be construed as references to this Regulation and shall be read in accordance with the table of equivalence in Annex V.
Article 21
This Regulation shall enter into force on the seventh 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, 14 May 2001. | [
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Commission Decision
of 22 November 2001
amending Decision 95/454/EC laying down special conditions governing imports of fishery and aquaculture products originating in the Republic of Korea
(notified under document number C(2001) 3692)
(Text with EEA relevance)
(2001/818/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) Annex A of Commission Decision 95/454/EC of 23 October 1995 laying down special conditions governing imports of fishery and aquaculture products originating in the Republic of Korea(3), as last amended by Decision 2001/641/EC(4), lays down the model of health certificate for fishery and aquaculture products originating in the Republic of Korea and intended for export to the European Community.
(2) Commission Decision 95/453/EC of 23 October 1995 laying down special conditions for the import of bivalve molluscs, echinoderms, tunicates and marine gastropods originating in the Republic of Korea(5), as last amended by Decision 2001/676/EC(6), authorizes the imports of frozen and processed bivalve molluscs, echinoderms, tunicates and marine gastropods from the Republic of Korea. It is, therefore, necessary to complete the health attestation of the health certificate laid down in Decision 95/454/EC with the relevant mentions to the requirements for bivalve molluscs.
(3) The measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
Decision 95/454/EC is modified as follows:
Point IV of the Annex A is replaced by the following: "IV. Health attestation
The official inspector hereby certifies that the fishery or aquaculture products specified above:
1. were caught and handled on board vessels in accordance with the health rules laid down by Directive 92/48/EEC;
2. were landed, handled and where appropriate packaged, prepared, processed, frozen, thawed and stored hygienically in compliance with the requirements laid down in Chapters II, III and IV of the Annex to Directive 91/493/EEC;
3. have undergone health controls in accordance with Chapter V of the Annex to Directive 91/493/EEC;
4. are packaged, marked, stored and transported in accordance with Chapters VI, VII and VIII of the Annex to Directive 91/493/EEC;
5. do not come from toxic species or species containing biotoxins;
6. have satisfactorily undergone the organoleptic, parasitological, chemical and microbiological checks laid down for certain categories of fishery products by Directive 91/493/EEC and in the implementing decisions thereto;
7. in addition, where the fishery products are frozen or processed bivalve molluscs: the molluscs were obtained from approved production areas laid down by the Annex to Decision 95/453/EC of 23 October 1995 laying down special conditions for the import of live bivalve molluscs, echinoderms, tunicates and marine gastropods originating in the Republic of Korea.
The undersigned official inspector hereby declares that he is aware of the provisions of Directives 91/492/EEC, 91/493/EEC and 92/48/EEC and Decisions 95/453/EC and 95/454/EC."
Article 2
This Decision shall apply 45 days after its publication in the Official Journal of the European Communities.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 22 November 2001. | [
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COMMISSION DECISION
of 1 July 1999
on State aid which Spain is planning to implement in favour of Brilén SA
(notified under document number C(1999) 2131)
(Only the Spanish text is authentic)
(Text with EEA relevance)
(1999/672/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 given interested parties notice, in accordance with the abovementioned Articles, to submit their comments(1) and having regard to those comments,
Whereas:
I. Procedure
(1) By letter dated 2 December 1997, Spain notified the Commission of a proposal to grant aid to Brilén SA, a company located at Barbastro in the Autonomous Community of Aragon (Brilén). By letter dated 22 December 1997, the Commission requested additional information. The Spanish authorities responded by letter of 12 February 1998.
(2) By letter dated 4 May 1998 the Commission informed Spain of its decision to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the planned aid. Spain submitted its comments by letter of 10 June 1998.
(3) 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.
(4) The Commission received comments from interested parties. It forwarded them to Spain, which was given the opportunity to react; its comments were received by letters dated 2 October 1998 and 20 May 1999.
(5) On 27 October 1998 a meeting was held between the Commission, the Spanish authorities and representatives of the company. By letter of 29 October 1998 the Commission invited the Spanish authorities to submit further comments. The Spanish authorities responded by letter dated 19 January 1999. By letter of 4 February 1999, the Commission requested clarification on certain points. The Spanish Government replied by letter dated 9 April 1999.
II. Description of the aid
The recipient
(6) Brilén belongs to the Samca group, also based in Aragon and active chiefly in the mining, agriculture, chemical, textiles, construction and other sectors. The group has a total workforce of 4000, with plants spread across the whole of Spain and in other countries including France, Italy and Argentina. Brilén has a workforce of 266 and in 1996 generated turnover of ESP 6059 million.
(7) Brilén produces and processes polyester and, as part of its activities in the textiles sector, has two product lines: polyester textile filament yarn and PET/staple fibre. The raw material for the manufacture of these products is supplied by the company's in-house polymerisation plant (32000 tonnes per year). Its extrusion capacity for textile yarn of 19370 tonnes per year determined the maximum combined output of the two end-products.
(8) Output in 1994 was 7554 tonnes of filament yarn and 6546 tonnes of PET/staple fibre, i.e. an extrusion capacity utilisation rate of 73 %.
(9) [...](3)
(10) Given the obsolescence of its production technology and the poor health of the market in staple fibre, a business plan was implemented over the period 1992-96 in order to bring production into line with new market requirements. Consequently, the PET/staple production line was dismantled and the company focused on the production of filament yarn. Total production of filament yarn before the Investment (1997) was 9987 tonnes, i.e. 52 % of total extrusion capacity.
(11) The polyester filament yarn line produces continuous filament yarn presented in cops; spin-draw yarn (SDY) presented in bobbins; draw-winder yarn (DWY) presented in bobbins; pre-oriented yarn (POY) presented in bobbins; and warped and sized yarn presented in beams. The market for the intermediate products manufactured by Brilén is the textiles industry, including the garment, hosiery and decoration sectors.
(12) The company exports about 30 % of its output to other Member States and about 5 % to the rest of the world, a pattern which is not expected to change significantly after the completion of the project.
(13) The Spanish authorities stressed that the company acts as a major driving-force in the regional economy, both through its own business activity and through the indirect employment it generates.
The project
(14) The Spanish authorities stated that the investment project was to be carried out between 1997 and 1998 and would relate exclusively to the technological rationalisation and upgrading of the polyester yarn production plant. While polymerisation capacity was to remain the same (32000 tonnes), extrusion capacity for continuous filament yarn would increase from 9500 tonnes per year to 11500 tonnes, with an equivalent reduction in PET/flock production from 22500 tonnes to 20500 tonnes. Nominal textile yarn production capacity was to remain unchanged at 19370 tonnes per year. Thus, after the project, the capacity utilisation rate was expected to be 59 %.
(15) According to the Spanish authorities, the combined capacity for these products will not change following the investment. Instead there will be a reorientation of production with a switch from staple fibre, for which the prospects are disappointing owing to the evolution of customers' quality and cost requirements, to polyester textile filament yarn, for which the market prospects are more promising.
(16) The investment is to cover four areas of production and concerns chiefly the purchase of new machinery, including a spinning line to produce spun dyed yarn, a draw winder draw-twisters and draw-warping lines. It will also include construction works and other ancillary installations, including electricity, steam, compressed air, air conditioning, internal transport, control equipment and safety systems. The company's intention is to opt for a new technology which allows a high degree of intermingling of the yarn filaments. This will improve the company's competitiveness and reduce pollution in the subsequent texturing processes. The company will thus be able to increase its market share in polyester yarn in its different presentations (bobbins, cops and beams) by entering the medium-high price markets. The project will begin to reverse the effects of the policy of abandonment and disinvestment in this sector in Spain which the main European producers have been pursuing over the last decade, in favour of their own domestic plants. As a result of the project 25 new jobs will be created.
(17) While 40 % of the planned investment will relate to activities falling outside the scope of the Code on aid to the synthetic fibres industry(4) (the Synthetic Fibres Code), the scope and provisions of which have periodically been amended, most recently in 1999(5), namely the drawing, warping and sizing operations (i.e. these processes do not form part of the extrusion/texturisation process and are not integrated with such machinery), the remaining 60 % will relate to the spinning area of production and therefore falls within the scope of the Synthetic Fibres Code.
(18) As far as external trade is concerned, it is expected that after the investment the company will increase its exports, particularly to non-member countries.
(19) The Spanish authorities stated that the total eligible investment costs amounted to ESP 2012 million (EUR 12,09 million) and that the proposed aid was ESP 201,2 million (EUR 1,21 million), with an aid intensity of 10 %. The aid was to be awarded under the approved regional economic incentives scheme(6). The legal basis was Law No 50/1985 of 27 December 1985 (Law on regional incentives to correct economic imbalances between different parts of the country)(7), Royal Decree No 1535/1987 of 11 December 1987(8) (regulations implementing Law No 50/1985) and Royal Decrees Nos 491/1988 of 6 May 1988(9) and 2486/1996 of 5 December 1996(10) (definition of eligible area in Aragon). The aid was to be conditional on the maintenance of the 266 existing jobs and the creation of 25 new jobs.
III. Comments by interested parties
(20) Comments were received from the International Rayon and Synthetic Fibres Committee (IRSFC) and from Brilén itself.
(21) The IRSFC stated that it was the representative body for the European man-made fibres industry, with its member companies accounting for 85 % of European Community production. It strongly supported full, rigorous and impartial implementation of the Synthetic Fibres Code. It stressed that, in the case concerned, the relevant product, in terms of the Synthetic Fibres Code, was polyester textile yarn and that the proposed aid was intended to assist an investment project which would increase Brilén's capacity for producing that fibre. It noted that, although Brilén's total production capacity for man-made fibres would remain below the levels of some years previously, the Code permitted only capacity for the relevant product to be taken into account. It stated that capacity utilisation for the relevant product in the EEA in 1996/97 averaged only 86 %, making it clear that the output of most producers was limited by demand rather than supply factors. Owing to the strong pressure from suppliers in Asia, it anticipated that imports from outside the EEA would maintain or even slightly increase their level and that structural overcapacity in this sector would continue at least until 2003.
(22) By letter dated 7 July 1998 Brilén submitted the following comments in response to the Commission's decision to initiate the procedure:
(23) Brilén did not agree with the Commission's statement that "the company exports about 30 % of its output, a figure which is not expected to change significantly after the completion of the project." The reality of the project was precisely the opposite: it was expected that the company would increase its exports, particularly to non-member countries, namely Argentina, Canada, the United States, Algeria and Israel.
(24) It did not agree that its investment project should be regarded as increasing its extrusion capacity. It stressed that there was no real increase in extrusion capacity, only a product substitution, namely a switch from standard staple fibre to specialised textile filament yarn. Between 1980 and 1994 the company had extrusion capacity of approximately 19370 tonnes of fibre per year. Brilén was currently producing approximately 9987 tonnes per year (96 dtex) of continuous filament, representing a capacity utilisation rate of only 52 %. After the polyester filament investment project, the company would produce 11500 tonnes per year (100 dtex), increasing the capacity utilisation rate to 59 %.
(25) It did not agree with the statement that the aid requested by Brilén would distort competition within the EEA. The aid requested represented only 10 % of the planned investment and only 1,6 % of the cost of sales and therefore could not significantly influence the investment decision or the company's competitiveness. Moreover, the expansion of Brilén's production of polyester textile filament yarn was not geared to the major commodities markets, in which there clearly existed excess capacity and which were not - and could not be - the target markets for a company of the size of Brilén.
(26) It disagreed with the treatment of Brilén as one of the large firms in the sector rather than as a small or medium-sized enterprise (SME), for the following reasons:
There were in fact four manufacturing plants that coexisted within Brilén:
- a plant producing polyester staple;
- a polyester yarn spinning plant;
- a warping and sizing plant;
- a plant producing preforms for bottles.
(27) Within each of these product ranges, Brilén would qualify as an SME on turnover and workforce criteria. As far as yarn production in particular was concerned, the company had a workforce directly employed of approximately 180 workers and a turnover (1997) of approximately ESP 4000 million (EUR 24,04 million). Furthermore, the Samca group to which Brilén belonged did not have any other interests or own any other companies in the sector, which meant that, except from a financial standpoint, the company was isolated industrially.
(28) Brilén's production accounted for only 5,5 % of the estimated total demand for polyester filament yarn in western Europe, which stood at 174000 tonnes in 1997. The proposed increase in polyester filament yarn capacity thus represented merely 1 % of demand in western Europe.
(29) It disagreed with the claim that there was no shortage of supply, for the following reasons:
According to consultants PCI, the forecast for supply was that "from 1998 onwards the market for polyester filament yarn will grow sharply and steadily until the year 2005". It was expected that demand for polyester filament yarn would grow at a steady rate, while production capacity would stagnate.
It was acknowledged among companies in the sector that a large proportion of production capacity was obsolete.
Although surplus production capacity possibly existed on an aggregate basis, it was a fact that Brilén had since 1996 been facing excess demand for the products it manufactures and sells. It therefore doubted whether it was proper to apply a calculation based on the total supply of all products and total demand for each product to the analysis of the appropriateness of an investment by a company of the size of Brilén. It argued that the analysis of the appropriateness of the aid should focus on the real state of Brilén's business broken down by product rather than an aggregate data, in view of the company's small size.
The Intrastat statistics showed that Spain's trade balance for 1997 was in deficit to the tune of over 12000 tonnes per year, corresponding to the volume of imports from non-member countries; a similar picture emerged if the situation was examined at Community level.
IV. Comments by Spain
(30) By letter dated 10 June 1998, the Spanish authorities essentially reiterated the views expressed by Brilén in the course of the procedure, adding that the proposed aid, with an intensity of 10 % (gross), amounted to less than half of the regional aid ceiling, which for the Aragon Economic Development Area is 20 % net gram equivalent.
V. Assessment of the aid
(31) The Commission must first determine whether or not the measure under examination constitutes State aid within the meaning of Article 87(1) of the Treaty. In the light of the information available the Commission's assessment is as follows:
(32) Article 87(1) of the Treaty lays down the principle that, except where otherwise allowable, aid which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the common market. Similarly, Article 61(1) of the EEA Agreement states that, except where otherwise allowable, such aid is incompatible with the functioning of the Agreement.
(33) The proposal to award aid to Brilén undoubtedly falls within the scope of Article 87(1) of the Treaty and Article 61(1) of the EEA Agreement as it would allow the company to carry out the investment in question without having to bear the full cost. The product which would be supported by the aid is polyester filament yarn falling under Combined Nomenclature (CN) codes 5402 42 00, 5402 43 10 and 5402 43 90. Since there is significant intra-EEA trade in these products (approximately 48000 tonnes in 1997) the proposed aid would be likely to distort competition and affect trade within the meaning of Article 87(1) of the Treaty and Article 61(1) of the EEA Agreement.
(34) Having established that the proposed aid to Brilén constitutes state aid, the Commission must decide whether or not it is incompatible with the common market.
(35) The exceptions to that principle set out in Article 87(2) of the Treaty do not apply to the case in point, given the nature and objectives of the aid.
(36) As far as the exception provided for by Article 87(3)(b) is concerned, the aid is clearly not intended to promote the execution of an important project of common European interest or to remedy a serious disturbance in the Spanish economy. Nor has the Spanish Government attempted to justify the aid on such grounds.
(37) As regards the exception provided for by Article 87(3)(d) of the Treaty, the aid is clearly not intended to promote culture and heritage conservation.
(38) With regard to the exceptions provided for in Article 87(3)(a) and (c) for aid that promotes or facilitates the development of certain areas, the Commission notes that the region in which Brilén is located is eligible for regional aid pursuant to Article 87(3)(c). The exception provided in Article 87(3)(c) of the Treaty is for aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest.
(39) The Barbastro area is eligible for regional aid under Article 87(3)(c) of the Treaty. In that particular area, the regional incentives scheme approved by the Commission decision(11), as subsequently amended(12), allows a maximum aid intensity of 20 % of the eligible investment. Aid is granted for investment in new fixed assets and is conditional an the maintenance of existing jobs. Furthermore, in accordance with the guidelines on national regional aid(13), an exception to the incompatibility principle established by Article 87(1) of the Treaty may be granted in respect of regional aid only if the equilibrium between the resulting distortions of competition and the advantages of the aid in terms of the development of a less-favoured region can be guaranteed.
(40) In the case in point, the investment chiefly entails the purchase of new machinery and the construction of buildings and ancillary installations. The aim is to introduce new technology which will improve productivity and efficiency while reducing pollution levels. Grant of the aid is conditional on the company safeguarding the existing 266 jobs and creating 25 new ones. The investment in question may therefore facilitate the development of the Barbastro area. The intensity (10 %) and other aspects of the proposal to award aid under the regional incentives scheme in the form of a grant of ESP 201,2 million (EUR 1,21 million) towards an investment of ESP 2012 million (EUR 12,09 million) are in accordance with the terms on which the regional incentives scheme was approved by the Commission.
(41) However, the effects of regional aid on the synthetic fibres industry have to be controlled, even for the least developed areas of the Community. The conditions under which aid may be awarded to synthetic fibres producers have since 1977 been regulated by the Synthetic Fibres Code.
(42) As Brilén is a producer of synthetic fibres and as the aid in question relates to the upgrading of a polyester yarn production plant, it could only be considered compatible with the common market if it was also in line with the Synthetic Fibres Code.
(43) The Code requires the notification of any proposal to award aid to synthetic fibres producers in whatever form, irrespective of whether or not the Commission has authorised the scheme concerned and unless the aid would satisfy the de minimis(14) criterion, where the aid would be awarded by way of direct support for:
- extrusion/texturisation of all generic types of fibre and yarn based on polyester, polyamide, acrylic or polypropylene, irrespective of their end-uses, or
- polymerisation (including polycondensation) where it is integrated with extrusion in terms of the machinery used, or
- any ancillary process linked to the contemporaneous installation of extrusion/texturisation capacity by the prospective beneficiary or by another company in the group to which it belongs and which, in the specific business activity concerned, is normally integrated with such capacity in terms of the machinery used.
(44) The Code sets out in detail the criteria to be applied when the Commission scrutinises proposals falling within its scope. It states, among other things, that in assessing the compatibility of the proposed aid the fundamental consideration is the effect of that aid on the markets for the relevant products, namely the fibre/yarn whose production would be supported by the aid. Under the Code, investment aid will only be authorised:
(a) for larger firms, that is, firms that are not SMEs, at up to 50 % of the applicable aid ceiling:
- if the aid would result in a significant reduction in the relevant capacity, or
- if the market for the relevant products was characterised by a structural shortage of supply and the aid would not result in a significant increase in the relevant capacity,
(b) for SMEs, at up to 75 % of the applicable aid ceiling if the market for the relevant products was characterised by a structural shortage of supply and the aid would not result in a significant increase in the relevant capacity,
(c) for SMEs, at up to 100 % of the applicable aid ceiling:
- if the aid would result in a significant reduction in the relevant capacity, or
- if the market for the relevant products was characterised by a structural shortage of supply and the aid would not result in a significant increase in the relevant capacity and the relevant products were innovative.
(45) Contrary to the position taken by the Spanish authorities and the company, Brilén cannot be considered under the State aid rules to qualify as an SME. The definition laid down in the relevant Commission Recommendation(15) does not allow the size of a company to be determined on the basis of sectors or subsectors of its activity. In any event Brilén does not meet the independence criterion, being a subsidiary of the Samca group. Consequently, the criteria for investment aid to larger firms are applicable.
(46) According to the notification, 40 % of the eligible cost of the investment relates to activities falling outside the scope of the Synthetic Fibres Code, namely the drawing, warping and sizing operations (i.e. these processes do not form part of the extrusion/texturisation process and are not integrated with such machinery), while the remaining 60 % relates to the extrusion area of production and therefore falls within the scope of the Code. Since the project is for investment in new fixed assets, the risk of diversion of aid between activities covered by the Code and activities outside its scope is necessarily extremely small. The Commission is therefore able to accept, in the same proportion, that 60 % of the proposed aid would be awarded in direct support for the extrusion of one of the generic types of synthetic fibre falling within the scope of control of the Code, namely polyester textile filament yarn, while the remaining 40 % of the proposed aid would be granted under a scheme approved by the Commission but falling outside the scope of the Code.
(47) As regards the 60 % of the proposed aid which falls within the scope of the Synthetic Fibres Code, the Commission cannot accept the Spanish authorities' assertion that there will be no "overall" increase in extrusion capacity, since what matters is the extrusion capacity for the individual fibres and yarns covered by the Code in view of their different markets. The extrusion capacity for polyester yarn was 9500 tonnes per year prior to commencement of the project and will be 11500 tonnes per year after its completion. Therefore, as the company itself acknowledges, the investment will give rise to an increase of 21 % in extrusion capacity for the relevant yarn.
(48) Even though capacity utilisation rates in this sector at EEA level have improved in recent years, they have remained on average rather unsatisfactory and have increased only through rationalisation. The capacity utilisation rate for polyester filament yarn within the EEA was, as the Commission pointed out in its Decision to initiate the procedure, approximately 74 % in 1994, 78 % in 1995 and 82 % in 1996. The Spanish authorities have not challenged these figures. Although capacity utilisation rose to 89 % in 1997, draft figures for 1998 show a utilisation rate of 84 %. According to the Code, the capacity utilisation rate for production of the relevant fibre or yarn, averaged an an annual basis over the previous two years, would be expected to be at least 90 % if there were a structural shortage of supply. Consequently, there does not appear to be a structural shortage of supply in the relevant market, i.e. the market in polyester filament yarn.
(49) Although, according to available data, consumption of textured polyester fibre within the EEA did increase from 458000 tonnes in 1995 to 569000 tonnes in 1997 and imports from outside the EEA rose from 68000 tonnes to 104000 tonnes over the same period, the trend would appear to be chiefly the result of strong pressure from suppliers in Asia, where excess capacity is huge and rising, rather than supply factors within the EEA.
(50) Furthermore, the company points out that the aid requested amounts to only 10 % of the planned investment and represents only 1,6 % of the cost of sales, so that it cannot be regarded as significantly influencing the investment decision.
(51) The remaining 40 % of the proposed aid relates to processes, namely drawing, warping and sizing operations, that do not form part of the extrusion/texturisation process and are not integrated with such machinery. It therefore falls outside the scope of the Synthetic Fibres Code. As a result of the proportional calculation applied, the aid intensity of 10 % remains unchanged. The investment linked to the aid is for the purchase of new fixed assets and, in any event, the creation of 25 new jobs appears to be ensured in as much as, according to the company, the amount of the aid granted will not perceptibly influence the investment decision as a whole. It consequently satisfies the conditions on which the abovementioned regional incentives scheme was approved by the Commission.
VI. Conclusions
(52) Brilén is a larger firm producing synthetic fibres that fall within the scope of the Synthetic Fibres Code. 60 % of the notified aid would be awarded in direct support for the extrusion of one of the generic types of synthetic fibre and would lead to an increase in production capacity for the relevant fibre of 21 %. The capacity utilisation rates for polyester filament yarn within the EEA have in recent years remained on average below the 90 % level. Consequently, there does not appear to be a structural shortage of supply in the relevant market as defined by the Code.
(53) Accordingly, the Commission finds that the part of proposed aid to Brilén falling within the scope of the Synthetic Fibres Code and amounting to ESP 120720000 (EUR 725541,81) cannot be considered compatible with the Code and is therefore incompatible with the common market and the functioning of the EEA Agreement.
(54) On the other hand, the Commission does not raise objections in respect of that part of the aid, amounting to ESP 80480000 (EUR 483694,54), which falls within a Commission-approved scheme but outside the scope of the Code,
HAS ADOPTED THIS DECISION:
Article 1
The State aid amounting to EUR 725541,81 which Spain is planning to implement in favour of Brilén SA is incompatible with the common market.
This aid may accordingly not be implemented.
Article 2
The State aid amounting to EUR 483694,54 which Spain is planning to implement in favour of Brilén SA is compatible with the common market in accordance with Article 87(1) of the Treaty.
Implementation of this aid is accordingly authorised.
Article 3
Spain shall inform the Commission, within two months following notification of this Decision, of the measures taken to comply with it.
Article 4
This Decision is addressed to the Kingdom of Spain.
Done at Brussels, 1 July 1999. | [
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COMMISSION REGULATION (EC) No 1400/2004
of 30 July 2004
fixing the production refund on white sugar used in the chemical industry for the period from 1 to 31 August 2004
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (1), and in particular the fifth indent of Article 7(5) thereof,
Whereas:
(1)
Pursuant to Article 7(3) of Regulation (EC) No 1260/2001, production refunds may be granted on the products listed in Article 1(1)(a) and (f) of that Regulation, on syrups listed in Article 1(1)(d) thereof and on chemically pure fructose covered by CN code 1702 50 00 as an intermediate product, that are in one of the situations referred to in Article 23(2) of the Treaty and are used in the manufacture of certain products of the chemical industry.
(2)
Commission Regulation (EC) No 1265/2001 of 27 June 2001 laying down detailed rules for the application of Council Regulation (EC) No 1260/2001 as regards granting the production refund on certain sugar products used in the chemical industry (2) provides that these refunds shall be determined according to the refund fixed for white sugar.
(3)
Article 9 of Regulation (EC) No 1265/2001 provides that the production refund on white sugar is to be fixed at monthly intervals commencing on the first day of each month.
(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
The production refund on white sugar referred to in Article 4 of Regulation (EC) No 1265/2001 shall be equal to 41,257 EUR/100 kg net for the period from 1 to 31 August 2004.
Article 2
This Regulation shall enter into force on 1 August 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 July 2004. | [
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COMMISSION REGULATION (EEC) No 2392/79 of 30 October 1979 on the classification of goods under subheading 29.22 A I of the Common Customs Tariff
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 97/69 of 16 January 1969 on measures to be taken for uniform application of the nomenclature of the Common Customs Tariff (1), as last amended by Regulation (EEC) No 280/77 (2), and in particular Article 3 thereof,
Whereas measures are necessary to ensure uniform application of the nomenclature of the Common Customs Tariff for the purpose of classification of the product dimethylammonium 2,4-dichlorophenoxyacetate (2,4 D-Aminsalz) in aqueous solution;
Whereas the Common Customs Tariff annexed to Council Regulation (EEC) No 950/68 (3), as last amended by Regulation (EEC) No 882/79 (4), refers under heading No 29.16 to carboxylic acids with single oxygen function and under heading No 29.22 to amine-function compounds;
Whereas the product in question has the structure both of a carboxylic acid with single oxygen function and of an amine-function compound;
Whereas, pursuant to Note 3 to Chapter 29, goods which could be included in two or more of the headings of that Chapter are to be classified in the latest of those headings ; whereas, therefore, the product in question should be classified under heading No 29.22;
Whereas under heading No 29.22, it would be appropriate to choose subheading 29.22 A I;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Committee on Common Customs Tariff Nomenclature,
HAS ADOPTED THIS REGULATION:
Article 1
The product dimethylammonium 2,4-dichlorophenoxyacetate (2,4 D-Aminsalz) in aqueous solution shall be classified under the following subheading of the Common Customs Tariff:
29.22 Amine-function compounds:
A. Acyclic monoamines:
I. Methylamine, dimethylamine and trimethylamine, and their salts.
Article 2
This Regulation shall enter into force on the 21st day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 October 1979. | [
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COMMISSION REGULATION (EEC) No 869/91 of 9 April 1991 establishing the list of flint maize varieties on which prodution aid can be granted
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1835/89 of 19 June 1989 setting general rules on the production aid for high-quality flint maize (1), and in particular Article 3 (2) thereof,
Whereas the production aid is intended to encourage production of high-quality flint maize; whereas Article 3 (1) of Regulation (EEC) No 1835/89 sets out the qualifying requirements for high-quality varieties;
Whereas Commission Regulation (EEC) No 3771/89 of 14 December 1989 laying down detailed rules for the production aid for high-quality flint maize (2), as amended by Regulation (EEC) No 548/90 (3), sets out the procedure for inclusion of flint maize varieties on the list provided for in Article 3 (2) of Regulation (EEC) No 1835/89; whereas the Commission has received all the test results for the varieties for which an application for inclusion on the list was made; whereas the list of varieties on which the production aid referred to in Regulation (EEC) No 1835/89 can be granted should be adopted on the basis of these results;
Whereas the measures provided in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION: Article 1
The list of varieties provided for in Article 3 (2) of Regulation (EEC) No 1835/89 is annexed 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, 9 April 1991. | [
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*****
COUNCIL REGULATION (EEC) No 1654/90
of 18 June 1990
opening and providing for the administration of a Community tariff quota for herring, fresh or chilled, originating in Sweden
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the Act of Accession of Spain and Portugal,
Having regard to the proposal from the Commission,
Whereas an Agreement between the European Economic Community and the Kingdom of Sweden was concluded on 22 July 1972; whereas, following the accession of Spain and Portugal, an Agreement in the form of an Exchange of Letters was concluded between the European Economic Community and the Kingdom of Sweden on the agricultural and fisheries sector; whereas this Agreement was adopted by Decision 86/558/EEC (1);
Whereas this Agreement provides for the opening, over a period to be determined by common accord, of a 20 000 tonne duty-free Community tariff quota for herring, fresh or chilled, whole, headless or in pieces, originating in Sweden; whereas, therefore, the tariff quota in question should be opened for the period 15 September 1990 to 14 February 1991;
Whereas equal and continuous access to the quota should be ensured for all Community importers and the rate of levy for the tariff quota should be applied consistently to all imports until the quota is used up; whereas, it is appropriate to take the necessary measures to ensure efficient Community administration of this tariff quota while offering the Member States the opportunity to draw from the quota volume the necessary quantities corresponding to actual imports; whereas this method of administration requires close cooperation between the Member States and the Commission;
Whereas, since the Kingdom of Belgium, the Kingdom of the Netherlands and the Grand Duchy of Luxembourg are united within and jointly represented by the Benelux Economic Union, all transactions concerning the administration of this quota may be carried out by any one of its members,
HAS ADOPTED THIS REGULATION:
Article 1
1. From 15 September 1990 to 14 February 1991 the Common Customs Tariff duty on the following products shall be suspended at the level and within the time limit of the Community tariff quota as shown herewith:
1.2.3.4.5 // // // // // // Order No // CN code (1) // Description // Amount of of quota (in tonnes) // Rate of duty (%) // // // // // // // // // // // 09.0615 // ex 0302 40 90 ex 0304 10 93 ex 0304 10 98 // Herring and meat of herring, fresh or chilled, originating in Sweden // 20 000 // 0 (a) // // // // //
(1) Taric codes: ex 0302 40 90 * 20, ex 0304 10 93 * 20, ex 0304 10 98 * 16.
(a) However when those products are imported into Portugal the duty applicable shall be 5,6 % in 1990 and 3,8 % in 1991 within the limit of the quantities for which this Member State is eligible.
2. Imports of the products in question shall not benefit from the tariff quotas referred to in paragraph 1 unless the free-at-frontier prices, which are determined by the Member States according to Article 21 of Council Regulation (EEC) No 3796/81 of 29 December 1981 on the common organization of the market in fishery products (1), as last amended by Regulation (EEC) No 2886/89 (2), are at least equal to the reference prices if such prices have been fixed or are to be fixed by the Community for the product under consideration or the levy of the products concerned. For the calculation of the reference price, the following coefficients shall be applicable:
- whole herring: 1,
- flaps of herring: 2,32,
- pieces of herring: 1,96.
3. The Protocol on the definition of the concept of originating products and on methods of administrative cooperation, annexed to the Agreement between the European Economic Community and Sweden, shall be applicable.
Article 2
The tariff quota referred to in Article 1 shall be administered by the Commission, which may take all appropriate administrative measures in order to ensure effective administration thereof.
Article 3
If an importer presents, in a Member State, a declaration of entry into free ciruclation, including a request for preferential benefit for a product covered by this Regulation and if this declaration is accepted by the customs authorities, the Member State concerned shall inform the Commission and draw an amount corresponding to its requirements from the quota amount.
The drawing requests, with indication of the date of acceptance of the said declarations, must be transmitted to the Commission without delay.
The drawings are granted by the Commission by reference to the date of acceptance of the declarations of entry into free circulation by the customs authorities of the Member State concerned to the extend that the available balance so permits.
If a Member State does not use the quantities drawn, it shall return them as soon as possible to the quota amount.
If the quantities requested are greater than the available balance of the quota amount, allocation shall be made on a pro rata basis with respect to the requests. Member States shall be informed by the Commission thereof.
Article 4
Each Member State shall ensure that importers of the products concerned have equal and continuous access to the quota for such time as the residual balance of the quota volume so permits.
Article 5
Member States and the Commission shall collaborate closely in order to ensure that this Regulation is complied with.
Article 6
This Regulation shall enter into force on 15 September 1990.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 18 June 1990. | [
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COMMISSION REGULATION (EC) No 356/2006
of 28 February 2006
fixing the production refund on white sugar used in the chemical industry for the period from 1 to 31 March 2006
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (1), and in particular the fifth indent of Article 7(5) thereof,
Whereas:
(1)
Pursuant to Article 7(3) of Regulation (EC) No 1260/2001, production refunds may be granted on the products listed in Article 1(1)(a) and (f) of that Regulation, on syrups listed in Article 1(1)(d) thereof and on chemically pure fructose covered by CN code 1702 50 00 as an intermediate product, that are in one of the situations referred to in Article 23(2) of the Treaty and are used in the manufacture of certain products of the chemical industry.
(2)
Commission Regulation (EC) No 1265/2001 of 27 June 2001 laying down detailed rules for the application of Council Regulation (EC) No 1260/2001 as regards granting the production refund on certain sugar products used in the chemical industry (2) provides that these refunds shall be determined according to the refund fixed for white sugar.
(3)
Article 9 of Regulation (EC) No 1265/2001 provides that the production refund on white sugar is to be fixed at monthly intervals commencing on the first day of each month.
(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
The production refund on white sugar referred to in Article 4 of Regulation (EC) No 1265/2001 shall be equal to 26,917 EUR/100 kg net for the period from 1 to 31 March 2006.
Article 2
This Regulation shall enter into force on 1 March 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 February 2006. | [
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COMMISSION REGULATION (EEC) No 2789/93 of 11 October 1993 amending Regulations (EEC) No 2312/92 and (EEC) No 1148/93 laying down detailed rules for implementing the specific measures for supplying the French overseas territories with live bovine animals and breeding horses
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3763/91 of 16 December 1991 introducing specific measures in respect of certain agricultural products for the benefit of the French overseas departments (1), as amended by Commission Regulation (EEC) No 3714/92 (2), and in particular Articles 4 (5) and 9 thereof,
Whereas Commission Regulation (EEC) No 131/92 (3), as last amended by Regulation (EEC) No 2596/93 (4), lays down common detailed rules for implementation of the specific measures for the supply of certain agricultural products to the French overseas departments;
Whereas Commission Regulation (EEC) No 2312/92 (5), as last amended by Regulation (EEC) No 1734/93 (6), and (EEC) No 1148/93 (7), as amended by Regulation (EEC) No 1734/93, lay down detailed rules for implementing the specific measures for supplying the French overseas departments with live bovine animals and breeding horses respectively;
Whereas, in the light of experience, it is necessary to alter the timetable for the submission of applications for, and the issue of, certificates, and to amend the period of their validity and the size of the security lodged by the party 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
Regulation (EEC) No 2312/92 is hereby amended as follows:
1. Article 9 is amended as follows:
(a) in paragraph 1, 'during the first five working days' is replaced by 'during the first 10 working days';
(b) in paragraph 1 (b), 'ECU 30' is replaced by 'ECU 3';
(c) in paragraph 2, 'on the 10th working day' is replaced by 'on the 15th working day';
2. Article 10 is replaced by the following text:
'Article 10
Licences and certificates shall expire on the 90th day after their issue.'
Article 2
Regulation (EEC) No 1148/93 is hereby amended as follows:
1. Article 4 is amended as follows:
(a) in paragraph 1, 'during the first five working days' is replaced by 'during the first 10 working days';
(b) in paragraph 1 (b), 'ECU 30' is replaced by 'ECU 3';
(c) in paragraph 2, 'by the 10th working day' is replaced by 'by the 15th working day';
2. Article 5 is replaced by the following text:
'Article 5
The duration of validity of the aid certificates shall expire on the 90th day after their issue.'
Article 3
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 October 1993. | [
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*****
COMMISSION DECISION
of 30 November 1987
approving a programme submitted by the Federal Republic of Germany for the marketing of flowers and ornamental plants in Hessen pursuant to Council Regulation (EEC) No 355/77
(Only the German text is authentic)
(87/582/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 355/77 of 15 February 1977 on common measures to improve the conditions under which agricultural and fishery products are processed and marketed (1), as last amended by Regulation (EEC) No 560/87 (2), and in particular Article 5 thereof,
Whereas on 3 November 1986 the Government of the Federal Republic of Germany submitted a programme for the marketing of flowers and ornamental plants in Hessen and supplemented it by additional information on 25 June 1987;
Whereas this programme relates to the rationalization of storage and the improvement of conditions of sale and of market transparency as regards the flowers and ornamental plants produced in the programme area and is intended to strengthen the competitiveness of this sector and to ensure the freshness of its produce; whereas it constitutes therefore a programme within the meaning of Article 2 of Regulation (EEC) No 355/77;
Whereas this programme contains the details required under Article 3 of Regulation (EEC) No 355/77, showing that the objectives laid down in Article 1 of the said Regulation can be achieved in respect of flowers and ornamental plants in Hessen; whereas the schedule for implementation of the programme does not exceed the time limit laid down in Article 3 (1) (g) of that Regulation;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Structures,
HAS ADOPTED THIS DECISION:
Article 1
The programme for flowers and ornamental plants in Hessen submitted by the Government of the Federal Republic of Germany pursuant to Regulation (EEC) No 355/77 on 3 November 1986 and supplemented on 25 June 1987 is hereby approved.
Article 2
This Decision is addressed to the Federal Republic of Germany.
Done at Brussels, 30 November 1987. | [
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*****
COMMISSION REGULATION (EEC) No 1459/88
of 27 May 1988
re-establishing the levying of customs duties on synthetic camphor of the combined nomenclature CN code ex 2914 and other vitamins and their derivatives falling within CN code 2936, originating in China, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3635/87 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3635/87 of 17 December 1987 applying generalized tariff preferences for 1988 in respect of certain industrial products originating in developing countries (1), and in particular Article 16 thereof,
Whereas, pursuant to Articles 1 and 14 of Regulation (EEC) No 3635/87, suspension of customs duties shall be accorded to each of the countries or territories listed in Annex III other than those listed in column 4 of Annex I, within the framework of the preferential tariff ceiling fixed in column 9 of Annex I;
Whereas, as provided for in Article 14 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 synthetic camphor of the combined nomenclature code ex 2914 and other vitamins and their derivatives falling within CN code 2936 originating in China the individual ceiling was fixed at 280 000 and 830 000 ECU respectively; whereas, on 24 May 1988, imports of these products into the Community originating in China 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 China,
HAS ADOPTED THIS REGULATION:
Article 1
As from 31 May 1988, the levying of customs duties, suspended pursuant to Regulation (EEC) No 3635/87 shall be re-established on imports into the Community of the following products originating in China:
1.2.3 // // // // Order No // CN code // Description // // // // 10.0165 // ex 2914 21 00 // Synthetic camphor // 10.0360 // 2936 22 00 2936 28 00 2936 29 90 // Other vitamins and their derivatives // // //
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 May 1988. | [
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COMMISSION REGULATION (EC) No 1974/96 of 15 October 1996 amending Regulation (EC) No 716/96 adopting exceptional support measures for the beef market in the United Kingdom
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 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 1588/96 (2), and in particular Article 23 thereof,
Whereas Commission Regulation (EC) No 716/96 (3), as last amended by Regulation (EC) No 1846/96 (4), provided exceptional support measures for the beef market in the United Kingdom in particular by enabling producers to be paid ECU 1 per kilogram liveweight for animals slaughtered under the scheme set out in the Regulation; whereas in the light of recent developments in market prices in the United Kingdom it is appropriate to adjust that amount; whereas, consequently, the Community contribution expressed in ecu should also be adjusted;
Whereas the same Regulation requires the head, internal organs and carcases of animals slaughtered under its provisions to be permanently stained and transported in sealed containers to authorized incineration or rendering plants for processing and destruction; whereas subject to the necessary control to be carried out by the United Kingdom competent authorities these authorities should be allowed to use a limited number of animals for research and educational purposes prior to destruction;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 716/96 is amended as follows:
1. in Article 1 the following paragraph 6 is added:
'6. Notwithstanding paragraph 1 and subject to the necessary control, the United Kingdom competent authority shall be authorized, before processing and destruction, to use a limited number of animals for research or educational purposes.`;
2. in Article 2 (1) the amount of 'ECU 1` shall be replaced by 'ECU 0,9` and the amount of 'ECU 392` shall be replaced by 'ECU 353`;
3. in Article 2 (2) the amount of 'ECU 1` shall be replaced by 'ECU 0,9`.
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 to animals purchased from the first Monday following the day of publication.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 October 1996. | [
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COMMISSION REGULATION (EC) No 2440/97 of 5 December 1997 concerning the stopping of fishing for plaice and common sole by vessels flying the flag of Belgium
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 2205/97 (2), and in particular Article 21 (3) thereof,
Whereas Council Regulation (EC) No 390/97 of 20 December 1996 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1997 and certain conditions under which they may be fished (3), as last amended by Regulation (EC) No 1974/97 (4), provides for plaice and common sole quotas for 1997;
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 plaice and common sole in the waters of ICES division VIIa by vessels flying the flag of Belgium or registered in Belgium have reached the quotas allocated for 1997; whereas Belgium has prohibited fishing for these stocks as from 14 November 1997; whereas it is therefore necessary to abide by that date,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of plaice and 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 quotas allocated to Belgium for 1997.
Fishing for plaice and 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 stocks captured by the abovementioned vessels after the date of application of this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
It shall apply with effect from 14 November 1997.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 December 1997. | [
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Commission Decision
of 15 July 2002
amending Decisions 95/467/EC, 96/577/EC, 96/578/EC and 98/598/EC on the procedure for attesting the conformity of construction products pursuant to Article 20(2) of Council Directive 89/106/EEC as regards gypsum products, fixed fire-fighting systems, sanitary appliances and aggregates respectively
(notified under document number C(2002) 2586)
(Text with EEA relevance)
(2002/592/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products(1), as amended by Directive 93/68/EEC(2), and in particular Article 13(4) thereof,
Whereas:
(1) The Commission has already adopted a series of decisions on attesting the conformity of construction products pursuant to Article 20(2) of Directive 89/106/EEC.
(2) The need may arise to adapt those decisions to technical progress.
(3) This is the case of Commission Decisions 95/467/EC(3), 96/577/EC(4), 96/578/EC(5) and 98/598/EC(6).
(4) The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Construction,
HAS ADOPTED THIS DECISION:
Article 1
Decision 95/467/EC is hereby amended as follows.
1. In Annex 3, in the table for product family GYPSUM PRODUCTS (1/4) "fibrous gypsum plaster casts," is inserted after "fibrous gypsum boards,".
2. In Annex 3, in the table for product family GYPSUM PRODUCTS (2/4) "fibrous gypsum plaster casts," is inserted after "gypsum plasters,".
3. In Annex 3, in the table for product family GYPSUM PRODUCTS (4/4) the product family "fibrous gypsum plaster casts," is inserted after "ceiling elements and plasters,".
Article 2
Decision 96/577/EC is hereby amended as follows.
1. In Annex I, fifth indent, the following text is inserted after "nozzles/sprinklers/outlets.": "high pressure container valve assemblies and their actuators, selector valves and their actuators, non-electrical disable devices, flexible connectors, pressure gauges and pressure switches, mechanical weighing devices and check valves and non-return valves."
2. In Annex II, in the table for product family FIRE ALARM/DETECTION, FIXED FIRE FIGHTING, FIRE AND SMOKE CONTROL AND EXPLOSION SUPPRESSION PRODUCTS (1/1), the following row is inserted at the end of the fixed suppression and extinguishing section:
TABLE
Article 3
Decision 96/578/EC is hereby amended as follows.
1. In Annex III in the table for product family SANITARY APPLIANCES (1/1), the word "Sinks" is deleted from the first row of the table, such that the paragraph begins "Basins and communal troughs; ...".
2. In Annex III in the table for product family SANITARY APPLIANCES (1/1), the following row is inserted after the header row:
TABLE
Article 4
Decision 98/598/EC is hereby amended as follows.
1. In Annex III, in the table for product family AGGREGATES FOR USES WITHOUT HIGH SAFETY REQUIREMENTS (1/2), the indent in the first row "- for concrete mortar and grout", and the indent in the fourth row "- for concrete mortar and grout" are deleted.
2. In Annex III, in the table for product family AGGREGATES FOR USES WITHOUT HIGH SAFETY REQUIREMENTS (1/2) the following row is inserted:
TABLE
3. In Annex III, in the table for product family AGGREGATES FOR USES WITH HIGH SAFETY REQUIREMENTS (2/2) the indent in the first row "- for concrete mortar and grout", and the indent in the fourth row "- for concrete mortar and grout" are deleted.
4. In Annex III, in the table for product family AGGREGATES FOR USES WITH HIGH SAFETY REQUIREMENTS (2/2) the following row is inserted:
TABLE
Article 5
This Decision is addressed to the Member States.
Done at Brussels, 15 July 2002. | [
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Commission Regulation (EC) No 77/2001
of 5 January 2001
amending the Annexes to Regulation (EC) No 1547/1999 and Council Regulation (EC) No 1420/1999 as regards shipments of certain types of waste to Albania, Brazil, Bulgaria, Burundi, Jamaica, Morocco, Nigeria, Peru, Romania, Tunisia and Zimbabwe
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community(1), as last amended by Commission Decision 1999/816/EC(2), and in particular Article 17(3) thereof,
Having regard to Council Regulation (EC) No 1420/1999 of 29 April 1999 establishing common rules and procedures to apply to shipments to certain non-OECD countries of certain types of waste(3), as amended by Commission Regulation (EC) No 1208/2000(4), and in particular Article 3(5) thereof,
Whereas:
(1) In January 2000, the Commission sent a note verbale to all non-OECD countries (plus Hungary and Poland which do not yet apply OECD Decision C(92) 39 final). The purpose of this note verbale was three fold: (a) to inform these countries of the Community's new regulations; (b) to ask for confirmation of the respective positions as outlined in the Annexes to Regulation (EC) No 1420/1999 and Commission Regulation (EC) No 1547/1999 of 12 July 1999 determining the control procedures under Council Regulation (EEC) No 259/93 to apply to shipments of certain types of waste to certain countries to which OECD Decision C(92) 39 final does not apply(5), as last amended by Regulation (EC) No 1552/2000(6), and (c) to have an answer from those countries which did not reply in 1994.
(2) Among the countries that replied, Brazil, Bulgaria, Burundi, Jamaica, Morocco, Nigeria, Peru, Romania, Tunisia and Zimbabwe notified the Commission that the import of certain wastes listd in Annex II to Regulation (EEC) No 259/93 is accepted either without any control procedure or subject to control pursuant to the control procedure applying to Annex III or IV thereto or laid down in Article 15 thereof. Concerning other waste, they have indicated that they do not wish to receive shipments.
(3) Albania replied to the note verbale stating that its position has not changed. However, the provisions concerning Albania need to be amended to take into account the new labelling system for certain types of waste laid down in Annex II to Regulation (EC) No 259/93 as amended by Decision 1999/816/EC.
(4) In accordance with Article 17(3) of Regulation (EEC) No 259/93, the Committee set up by Article 18 of Council Directive 75/442/EEC of 15 July 1975 on waste(7), as last amended by Commission Decision 96/350/EC(8), was notified of the official request of these countries on 23 June 2000 (on 12 July 2000 for Burundi).
(5) In order to take into account the new situation of these countries, it is necessary to amend at the same time Regulation (EC) No 1420/1999 and Regulation (EC) No 1547/1999.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Committee set up by Article 18 of Directive 75/442/EEC,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 1547/1999 is amended as follows:
1. Annex A is amended as set out in Annex A to this Regulation;
2. Annex B is amended as set out in Annex B to this Regulation;
3. Annex C is amended as set out in Annex C to this Regulation;
4. Annex D is amended as set out in Annex D to this Regulation.
Article 2
Regulation (EC) No 1420/1999 is amended as follows:
1. Annex A is amended as set out in Annex E to this Regulation;
2. Annex B is amended as set out in Annex F to this Regulation.
Article 3
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 January 2001. | [
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COMMISSION REGULATION (EC) No 853/2008
of 18 August 2008
amending Regulation (EC) No 1580/2007 as regards the trigger levels for additional duties on apples and tomatoes
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1), and in particular Article 143(b) thereof, in conjunction with Article 4,
Whereas:
(1)
Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (2) provides for surveillance of imports of the products listed in Annex XVII thereto. That surveillance is to be carried out in accordance with the rules laid down in Article 308d 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 (3).
(2)
For the purposes of Article 5(4) of the Agreement on Agriculture (4) concluded during the Uruguay Round of multilateral trade negotiations and in the light of the latest data available for 2005, 2006 and 2007, the trigger levels for additional duties of apples and tomatoes should be adjusted.
(3)
As a result, Regulation (EC) No 1580/2007 should be amended accordingly.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Markets,
HAS ADOPTED THIS REGULATION:
Article 1
Annex XVII to Regulation (EC) No 1580/2007 is replaced by the text set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
It shall apply from 1 September 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 August 2008. | [
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COMMISSION DECISION of 6 July 1995 relating to the institution of a Scientific Committee for Food (95/273/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Whereas the drafting and amendment of common rules concerning the composition, manufacturing characteristics, packaging and labelling of foodstuffs requires consideration of the problems relating to the protection of health and safety of persons;
Whereas the quest for solutions to these problems needs the participation of highly qualified scientific personnel, particularly in the fields associated with medicine, nutrition, toxicology, biology, chemistry or other similar disciplines;
Whereas contact with such groups should assume a permanent character in the form of a committee of a consultative nature established by the Commission;
Whereas Commission Decision 74/234/EEC of 16 April 1974 relating to the institution of a Scientific Committee for Food (1), as amended by Decision 86/241/EEC (2), provides that the said Committee shall be composed of not more than 18 members; whereas, in view of the further enlargement of the Community on 1 January 1995 and the increase in the Committee's workload since the said number of members was established, the maximum number of members provided for should be increased;
Whereas, according to Article 101, Protocol 37 and Chapter XII of Annex II to the Agreement on the European Economic Area, the Commission has undertaken to ensure the participation in the Scientific Committee for Food of at least one highly qualified scientist from those Member States of the European Free Trade Association signatory to the Agreement;
Whereas scientific advice on matters relating to food safety must, in the interests of consumers and industry, be independent and transparent;
Whereas, in the interests of transparency, Decision 74/234/EEC should be replaced by this Decision,
HAS DECIDED AS FOLLOWS:
Article 1
A Scientific Committee for Food hereinafter called the 'Committee` is hereby established by the Commission.
Article 2
1. The Committee shall be consulted by the Commission whenever a legal act requires so.
2. The Committee may be consulted by the Commission on any other problem relating to the protection of the health and safety of persons arising or likely to arise from the consumption of food, in particular on nutritional, hygienic and toxicological issues.
3. The Committee may draw the attention of the Commission to any such problem.
Article 3
The Committee shall be composed of not more than 20 members.
Article 4
The Members of the Committee shall be nominated by the Commission from highly qualified scientific persons having competence in the fields referred to in Article 2 (2).
Article 5
The Committee shall elect a chairman and two vice-chairmen from its members. The election shall take place by simple majority of the members.
Article 6
1. The mandate of a member, chairman or vice-chairman of the Committee shall have a term of three years. It shall be renewable. However, the chairman and vice-chairmen of the Committee may not be immediately re-elected after being in office for two consecutive periods of three years. The duties shall not be subject to remuneration.
After the expiry of the period of three years, the members, chairman or vice-chairmen of the Committee remain in office until their replacement or the renewal of their mandate.
2. Where a member, chairman or vice-chairmen of the Committee finds he is unable to fulfil his mandate, or where the circumstances which led to his nomination significantly change, or in the case of his resignation, he shall be replaced for the remaining term of the mandate in accordance with the procedure provided, as the case may be, in Article 4 or Article 5.
Article 7
1. The Committee may form working groups from amongst its members.
2. The mandate of the working groups shall be to report to the Committee on the subjects referred to them by the latter.
Article 8
1. The Committee and the working groups shall meet at the invitation of a representative of the Commission.
2. The representative of the Commission as well as other officials and interested agents of the Commission shall assist at the meeting of the Committee and the working groups.
3. The representative of the Commission may invite individuals having particular expertise in the subject being studied to participate at the meetings.
4. The Commission shall provide the secretariat of the Committee and the working groups.
5. The Commission shall codify the working practices and procedures of the Committee and make them available to interested parties.
Article 9
1. The deliberations of the Committee shall relate to the requests for opinion put by the representative of the Commission.
The representative of the Commission, in requesting the opinion of the Committee, may fix the length of time within which the opinion is to be given.
2. Where the opinion requested is the subject of the unanimous agreement of the members of the Committee, these latter establish the common conclusions. In the absence of unanimous agreement, the various positions taken in the course of the deliberations shall be entered in a report drawn up under the responsibility of the representative of the Commission.
3. The Commission shall publish the opinions of the Committee.
Article 10
Without prejudice to Article 214 of the Treaty members shall be obliged not to divulge information coming to their knowledge as a result of the work of the Committee when the representative of the Commission informs them that the opinion requested relates to material of a confidential nature.
In this case, only the members of the Committee and the representatives of the Commission shall be present at the meetings.
Article 11
Members shall be required to notify the Commission annually, and as they occur during the work of the Committee and its working groups, of interests which could prejudice their independence.
Article 12
Decision 74/234/EEC is hereby repealed.
Done at Brussels, 6 July 1995. | [
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