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COMMISSION REGULATION (EC) No 795/2008
of 7 August 2008
fixing the export refunds on pigmeat
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1), and in particular Article 164(2), final subparagraph, and Article 170 thereof,
Whereas:
(1)
Article 162(1) of Regulation (EC) No 1234/2007 provides that the difference between prices on the world market for the products listed in Part XVII of Annex I to 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 market in pigmeat, export refunds should therefore be fixed in accordance with the rules and criteria provided for in Articles 162 to 164, 167, 169 and 170 of Regulation (EC) No 1234/2007.
(3)
Article 164(1) of Regulation (EC) No 1234/2007 provides that the refund may vary according to destination, especially where the world market situation, the specific requirements of certain markets, or obligations resulting from agreements concluded in accordance with Article 300 of the Treaty make this necessary.
(4)
Refunds should be granted only on products that are allowed to move freely in the Community and that bear the health mark as provided for in Article 5(1)(a) of Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (2). Those products must also satisfy the requirements laid down in Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (3) and Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (4).
(5)
The Management Committee for the Common Organisation of Agricultural Markets has not delivered an opinion within the time limit set by its Chairman,
HAS ADOPTED THIS REGULATION:
Article 1
1. Export refunds as provided for in Article 164 of Regulation (EC) No 1234/2007 shall be granted on the products and for the amounts set out in the Annex to this Regulation subject to the condition provided for in paragraph 2 of this Article.
2. The products eligible for a refund under paragraph 1 must meet the relevant requirements of Regulations (EC) Nos 852/2004 and 853/2004, notably preparation in an approved establishment and compliance with the health marking requirements laid down in Annex I, Section I, Chapter III to Regulation (EC) No 854/2004.
Article 2
This Regulation shall enter into force on 8 August 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 August 2008. | [
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Council Decision 2003/806/CFSP
of 17 November 2003
extending and amending Decision 1999/730/CFSP implementing Joint Action 1999/34/CFSP with a view to a European Union contribution to combating the destabilising accumulation and spread of small arms and light weapons in Cambodia
THE COUNCIL OF THE EUROPEAN UNION
Having regard to the Treaty on European Union, and in particular Article 23(2) thereof,
Having regard to Council Joint Action 2002/589/CFSP of 12 July 2002 on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons(1), and in particular Article 6 thereof,
Whereas:
(1) On 15 November 1999 the Council adopted Decision 1999/730/CFSP(2) concerning a European Union contribution to combating the destabilising accumulation and spread of small arms and light weapons in Cambodia, which was aimed at implementing Joint Action 1999/34/CFSP(3).
(2) Some objectives could not be fulfilled by 15 November 2003, the date on which Decision 2002/904/CFSP expired, and others should be consolidated and expanded after that date.
(3) The European Union has made a total contribution of EUR 5135992 since 1999 to combating the destabilising accumulation and spread of small arms in Cambodia, implementing Joint Action 1999/34/CFSP. The European Union's continued contribution is part of the follow-up to the Programme of Action to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects adopted by the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in all its Aspects (New York, 9 to 20 July 2001). This should encourage other donors to support the drive to reduce and control small arms and light weapons and, where appropriate, allow the implementation of joint projects with other donors.
(4) Decision 1999/730/CFSP should therefore be extended and amended,
HAS DECIDED AS FOLLOWS:
Article 1
Decision 1999/730/CFSP is hereby amended as follows:
(a) in Article 3(1), the financial reference amount "EUR 1568000" shall be replaced by "EUR 1436953";
(b) in Article 4 second subparagraph, "15 November 2003" shall be replaced by "15 November 2004";
(c) the Annex shall be replaced by the Annex to this Decision.
Article 2
This Decision shall take effect on 16 November 2003.
Article 3
This Decision shall be published in the Official Journal of the European Union.
Done at Brussels, 17 November 2003. | [
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COMMISSION DECISION
of 29 November 2004
on the conclusion of an Agreement in the form of an Exchange of Letters between the European Community and the Republic of Chile concerning amendments to Appendix I to the Agreement on trade in spirit drinks and aromatised drinks of the Association Agreement between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part, taking into account the enlargement
(2004/881/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 2002/979/EC of 18 November 2002 on the signature and provisional application of certain provisions of an Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part (1), and in particular Article 5(2) thereof,
Whereas:
(1)
Taking account of the enlargement, it is necessary to amend Appendix I, Section A of the Agreement on trade in spirit drinks and aromatised drinks of the Association Agreement between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part, in order to protect the new spirit terms of the new Member States with effect from 1 May 2004.
(2)
Therefore, the Community and the Republic of Chile have negotiated, in accordance with Article 16(2) of the aforementioned Agreement, an agreement in the form of an Exchange of Letters to amend its Appendix I, section A. This Exchange of Letters should therefore be approved.
(3)
The measures provided for in this Decision are in accordance with the opinion of the Implementation Committee for Spirit Drinks,
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement in the form of an Exchange of Letters between the European Community and the Republic of Chile amending Appendix I, Section A of the Agreement on trade in spirit drinks and aromatised drinks of the Association Agreement between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part, is hereby approved on behalf of the Community.
The text of the Agreement is attached to this Decision.
Article 2
The Commissioner of Agriculture is hereby empowered to sign the Exchange of Letters in order to bind the Community.
Done at Brussels, 29 November 2004. | [
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*****
COMMISSION REGULATION (EEC) No 724/84
of 20 March 1984
re-establishing the levying of customs duties on sodium dichromate, falling within subheading 28.47 B ex II and originating in Romania, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3569/83 apply
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3569/83 of 16 December 1983 applying generalized tariff preferences for 1984 in respect of certain industrial products originating in developing countries (1), and in particular Article 13 thereof,
Whereas, pursuant to Article 1 of that Regulation, duties on the products listed in Annex B originating in each of the countries or territories listed in Annex C shall be totally suspended and the products as such shall, as a general rule, be subject to statistical surveillance every three months on the reference base referred to in Article 12;
Whereas, as provided for in Article 12 of that Regulation, where the increase of preferential imports of these products, originating in one or more beneficiary countries, causes, or threatens to cause, economic difficulties in the Community or in a region of the Community, the levying of customs duties may be re-established, once the Commission has had an appropriate exchange of information with the Member States; whereas for this purpose the reference base to be considered shall be, as a general rule, 150 % of the highest maximum amount valid for 1980;
Whereas, in the case of sodium dichromate falling within subheading 28.47 B ex II the reference base is fixed at 264 700 ECU; whereas, on 16 March 1984, imports of these products into the Community originating in Romania, reached the reference base in question after being charged thereagainst; whereas the exchange of information organized by the Commission has demonstrated that continuance of the preference threatens to cause economic difficulties in a region of the Community; whereas, therefore, customs duties in respect of the products in question must be re-established against Romania,
HAS ADOPTED THIS REGULATION:
Article 1
As from 24 March 1984, the levying of customs duties, suspended pursuant to Council Regulation (EEC) No 3569/83, shall be re-established on imports into the Community of the following products originating in Romania:
1.2 // // // CCT heading No // Description // // // 28.47 B ex II (NIMEXE code 28.47-41) // Sodium dichromate // //
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 March 1984. | [
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COUNCIL DECISION 2008/616/JHA
of 23 June 2008
on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to Article 33 of Council Decision 2008/615/JHA (1),
Having regard to the initiative of the Federal Republic of Germany,
Having regard to the opinion of the European Parliament (2),
Whereas:
(1)
On 23 June 2008 the Council adopted Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime.
(2)
By means of Decision 2008/615/JHA, the basic elements of the Treaty of 27 May 2005 between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration (hereinafter the Prüm Treaty), were transposed into the legal framework of the European Union.
(3)
Article 33 of Decision 2008/615/JHA provides that the Council is to adopt the measures necessary to implement Decision 2008/615/JHA at the level of the Union in accordance with the procedure laid down in the second sentence of Article 34(2)(c) of the Treaty on European Union. These measures are to be based on the Implementing Agreement of 5 December 2006 concerning the administrative and technical implementation and application of the Prüm Treaty.
(4)
This Decision establishes those common normative provisions which are indispensable for administrative and technical implementation of the forms of cooperation set out in Decision 2008/615/JHA. The Annex to this Decision contains implementing provisions of a technical nature. In addition, a separate Manual, containing exclusively factual information to be provided by the Member States, will be drawn up and kept up to date by the General Secretariat of the Council.
(5)
Having regard to technical capabilities, routine searches of new DNA profiles will in principle be carried out by means of single searches, and appropriate solutions for this will be found at the technical level,
HAS DECIDED AS FOLLOWS:
CHAPTER I
GENERAL
Article 1
Aim
The aim of this Decision is to lay down the necessary administrative and technical provisions for the implementation of Decision 2008/615/JHA, in particular as regards the automated exchange of DNA data, dactyloscopic data and vehicle registration data, as set out in Chapter 2 of that Decision, and other forms of cooperation, as set out in Chapter 5 of that Decision.
Article 2
Definitions
For the purposes of this Decision:
(a)
‘search’ and ‘comparison’, as referred to in Articles 3, 4 and 9 of Decision 2008/615/JHA, mean the procedures by which it is established whether there is a match between, respectively, DNA data or dactyloscopic data which have been communicated by one Member State and DNA data or dactyloscopic data stored in the databases of one, several, or all of the Member States;
(b)
‘automated searching’, as referred to in Article 12 of Decision 2008/615/JHA, means an online access procedure for consulting the databases of one, several, or all of the Member States;
(c)
‘DNA profile’ means a letter or number code which represents a set of identification characteristics of the non-coding part of an analysed human DNA sample, i.e. the particular molecular structure at the various DNA locations (loci);
(d)
‘non-coding part of DNA’ means chromosome regions not genetically expressed, i.e. not known to provide for any functional properties of an organism;
(e)
‘DNA reference data’ mean DNA profile and reference number;
(f)
‘reference DNA profile’ means the DNA profile of an identified person;
(g)
‘unidentified DNA profile’ means the DNA profile obtained from traces collected during the investigation of criminal offences and belonging to a person not yet identified;
(h)
‘note’ means a Member State's marking on a DNA profile in its national database indicating that there has already been a match for that DNA profile on another Member State's search or comparison;
(i)
‘dactyloscopic data’ mean fingerprint images, images of fingerprint latents, palm prints, palm print latents and templates of such images (coded minutiae), when they are stored and dealt with in an automated database;
(j)
‘vehicle registration data’ mean the data-set as specified in Chapter 3 of the Annex to this Decision;
(k)
‘individual case’, as referred to in Article 3(1), second sentence, Article 9(1), second sentence and Article 12(1) of Decision 2008/615/JHA, means a single investigation or prosecution file. If such a file contains more than one DNA profile, or one piece of dactyloscopic data or vehicle registration data, they may be transmitted together as one request.
CHAPTER 2
COMMON PROVISIONS FOR DATA EXCHANGE
Article 3
Technical specifications
Member States shall observe common technical specifications in connection with all requests and answers related to searches and comparisons of DNA profiles, dactyloscopic data and vehicle registration data. These technical specifications are laid down in the Annex to this Decision.
Article 4
Communications network
The electronic exchange of DNA data, dactyloscopic data and vehicle registration data between Member States shall take place using the Trans European Services for Telematics between Administrations (TESTA II) communications network and further developments thereof.
Article 5
Availability of automated data exchange
Member States shall take all necessary measures to ensure that automated searching or comparison of DNA data, dactyloscopic data and vehicle registration data is possible 24 hours a day and seven days a week. In the event of a technical fault, the Member States' national contact points shall immediately inform each other and shall agree on temporary alternative information exchange arrangements in accordance with the legal provisions applicable. Automated data exchange shall be re-established as quickly as possible.
Article 6
Reference numbers for DNA data and dactyloscopic data
The reference numbers referred to in Article 2 and Article 8 of Decision 2008/615/JHA shall consist of a combination of the following:
(a)
a code allowing the Member States, in the case of a match, to retrieve personal data and other information in their databases in order to supply it to one, several or all of the Member States in accordance with Article 5 or Article 10 of Decision 2008/615/JHA;
(b)
a code to indicate the national origin of the DNA profile or dactyloscopic data; and
(c)
with respect to DNA data, a code to indicate the type of DNA profile.
CHAPTER 3
DNA DATA
Article 7
Principles of DNA data exchange
1. Member States shall use existing standards for DNA data exchange, such as the European Standard Set (ESS) or the Interpol Standard Set of Loci (ISSOL).
2. The transmission procedure, in the case of automated searching and comparison of DNA profiles, shall take place within a decentralised structure.
3. Appropriate measures shall be taken to ensure confidentiality and integrity for data being sent to other Member States, including their encryption.
4. Member States shall take the necessary measures to guarantee the integrity of the DNA profiles made available or sent for comparison to the other Member States and to ensure that these measures comply with international standards such as ISO 17025.
5. Member States shall use Member State codes in accordance with the ISO 3166-1 alpha-2 standard.
Article 8
Rules for requests and answers in connection with DNA data
1. A request for an automated search or comparison, as referred to in Articles 3 or 4 of Decision 2008/615/JHA, shall include only the following information:
(a)
the Member State code of the requesting Member State;
(b)
the date, time and indication number of the request;
(c)
DNA profiles and their reference numbers;
(d)
the types of DNA profiles transmitted (unidentified DNA profiles or reference DNA profiles); and
(e)
information required for controlling the database systems and quality control for the automatic search processes.
2. The answer (matching report) to the request referred to in paragraph 1 shall contain only the following information:
(a)
an indication as to whether there were one or more matches (hits) or no matches (no hits);
(b)
the date, time and indication number of the request;
(c)
the date, time and indication number of the answer;
(d)
the Member State codes of the requesting and requested Member States;
(e)
the reference numbers of the requesting and requested Member States;
(f)
the type of DNA profiles transmitted (unidentified DNA profiles or reference DNA profiles);
(g)
the requested and matching DNA profiles; and
(h)
information required for controlling the database systems and quality control for the automatic search processes.
3. Automated notification of a match shall only be provided if the automated search or comparison has resulted in a match of a minimum number of loci. This minimum is set out in Chapter 1 of the Annex to this Decision.
4. The Member States shall ensure that requests comply with declarations issued pursuant to Article 2(3) of Decision 2008/615/JHA. These declarations shall be reproduced in the Manual referred to in Article 18(2) of this Decision.
Article 9
Transmission procedure for automated searching of unidentified DNA profiles in accordance with Article 3 of Decision 2008/615/JHA
1. If, in a search with an unidentified DNA profile, no match has been found in the national database or a match has been found with an unidentified DNA profile, the unidentified DNA profile may then be transmitted to all other Member States' databases and if, in a search with this unidentified DNA profile, matches are found with reference DNA profiles and/or unidentified DNA profiles in other Member States' databases, these matches shall be automatically communicated and the DNA reference data transmitted to the requesting Member State; if no matches can be found in other Member States' databases, this shall be automatically communicated to the requesting Member State.
2. If, in a search with an unidentified DNA profile, a match is found in other Member States' databases, each Member State concerned may insert a note to this effect in its national database.
Article 10
Transmission procedure for automated search of reference DNA profiles in accordance with Article 3 of Decision 2008/615/JHA
If, in a search with a reference DNA profile, no match has been found in the national database with a reference DNA profile or a match has been found with an unidentified DNA profile, this reference DNA profile may then be transmitted to all other Member States' databases and if, in a search with this reference DNA profile, matches are found with reference DNA profiles and/or unidentified DNA profiles in other Member States' databases, these matches shall be automatically communicated and the DNA reference data transmitted to the requesting Member State; if no matches can be found in other Member States' databases, it shall be automatically communicated to the requesting Member State.
Article 11
Transmission procedure for automated comparison of unidentified DNA profiles in accordance with Article 4 of Decision 2008/615/JHA
1. If, in a comparison with unidentified DNA profiles, matches are found in other Member States' databases with reference DNA profiles and/or unidentified DNA profiles, these matches shall be automatically communicated and the DNA reference data transmitted to the requesting Member State.
2. If, in a comparison with unidentified DNA profiles, matches are found in other Member States' databases with unidentified DNA profiles or reference DNA profiles, each Member State concerned may insert a note to this effect in its national database.
CHAPTER 4
DACTYLOSCOPIC DATA
Article 12
Principles for the exchange of dactyloscopic data
1. The digitalisation of dactyloscopic data and their transmission to the other Member States shall be carried out in accordance with the uniform data format specified in Chapter 2 of the Annex to this Decision.
2. Each Member State shall ensure that the dactyloscopic data it transmits are of sufficient quality for a comparison by the automated fingerprint identification systems (AFIS).
3. The transmission procedure for the exchange of dactyloscopic data shall take place within a decentralised structure.
4. Appropriate measures shall be taken to ensure the confidentiality and integrity of dactyloscopic data being sent to other Member States, including their encryption.
5. The Member States shall use Member State codes in accordance with the ISO 3166-1 alpha-2 standard.
Article 13
Search capacities for dactyloscopic data
1. Each Member State shall ensure that its search requests do not exceed the search capacities specified by the requested Member State. Member States shall submit declarations as referred to in Article 18(2) to the General Secretariat of the Council in which they lay down their maximum search capacities per day for dactyloscopic data of identified persons and for dactyloscopic data of persons not yet identified.
2. The maximum numbers of candidates accepted for verification per transmission are set out in Chapter 2 of the Annex to this Decision.
Article 14
Rules for requests and answers in connection with dactyloscopic data
1. The requested Member State shall check the quality of the transmitted dactyloscopic data without delay by a fully automated procedure. Should the data be unsuitable for an automated comparison, the requested Member State shall inform the requesting Member State without delay.
2. The requested Member State shall conduct searches in the order in which requests are received. Requests shall be processed within 24 hours by a fully automated procedure. The requesting Member State may, if its national law so prescribes, ask for accelerated processing of its requests and the requested Member State shall conduct these searches without delay. If deadlines cannot be met for reasons of force majeure, the comparison shall be carried out without delay as soon as the impediments have been removed.
CHAPTER 5
VEHICLE REGISTRATION DATA
Article 15
Principles of automated searching of vehicle registration data
1. For automated searching of vehicle registration data Member States shall use a version of the European Vehicle and Driving Licence Information System (Eucaris) software application especially designed for the purposes of Article 12 of Decision 2008/615/JHA, and amended versions of this software.
2. Automated searching of vehicle registration data shall take place within a decentralised structure.
3. The information exchanged via the Eucaris system shall be transmitted in encrypted form.
4. The data elements of the vehicle registration data to be exchanged are specified in Chapter 3 of the Annex to this Decision.
5. In the implementation of Article 12 of Decision 2008/615/JHA, Member States may give priority to searches related to combating serious crime.
Article 16
Costs
Each Member State shall bear the costs arising from the administration, use and maintenance of the Eucaris software application referred to in Article 15(1).
CHAPTER 6
POLICE COOPERATION
Article 17
Joint patrols and other joint operations
1. In accordance with Chapter 5 of Decision 2008/615/JHA, and in particular with the declarations submitted pursuant to Articles 17(4), 19(2), and 19(4) of that Decision, each Member State shall designate one or more contact points in order to allow other Member States to address competent authorities and each Member State may specify its procedures for setting up joint patrols and other joint operations, its procedures for initiatives from other Member States with regard to those operations, as well as other practical aspects, and operational modalities in relation to those operations.
2. The General Secretariat of the Council shall compile and keep up to date a list of the contact points and shall inform the competent authorities about any change to that list.
3. The competent authorities of each Member State may take the initiative to set up a joint operation. Before the start of a specific operation, the competent authorities referred to in paragraph 2 shall make written or verbal arrangements that may cover details such as:
(a)
the competent authorities of the Member States for the operation;
(b)
the specific purpose of the operation;
(c)
the host Member State where the operation is to take place;
(d)
the geographical area of the host Member State where the operation is to take place;
(e)
the period covered by the operation;
(f)
the specific assistance to be provided by the seconding Member State(s) to the host Member State, including officers or other officials, material and financial elements;
(g)
the officers participating in the operation;
(h)
the officer in charge of the operation;
(i)
the powers that the officers and other officials of the seconding Member State(s) may exercise in the host Member State during the operation;
(j)
the particular arms, ammunition and equipment that the seconding officers may use during the operation in accordance with Decision 2008/615/JHA;
(k)
the logistic modalities as regards transport, accommodation and security;
(l)
the allocation of the costs of the joint operation if it differs from that provided in the first sentence of Article 34 of Decision 2008/615/JHA;
(m)
any other possible elements required.
4. The declarations, procedures and designations provided for in this Article shall be reproduced in the Manual referred to in Article 18(2).
CHAPTER 7
FINAL PROVISIONS
Article 18
Annex and Manual
1. Further details concerning the technical and administrative implementation of Decision 2008/615/JHA are set out in the Annex to this Decision.
2. A Manual shall be prepared and kept up to date by the General Secretariat of the Council, comprising exclusively factual information provided by the Member States through declarations made pursuant to Decision 2008/615/JHA or this Decision or through notifications made to the General Secretariat of the Council. The Manual shall be in the form of a Council Document.
Article 19
Independent data protection authorities
Member States shall, in accordance with Article 18(2) of this Decision, inform the General Secretariat of the Council of the independent data protection authorities or the judicial authorities as referred to in Article 30(5) of Decision 2008/615/JHA.
Article 20
Preparation of decisions as referred to in Article 25(2) of Decision 2008/615/JHA
1. The Council shall take a decision as referred to in Article 25(2) of Decision 2008/615/JHA on the basis of an evaluation report which shall be based on a questionnaire.
2. With respect to the automated data exchange in accordance with Chapter 2 of Decision 2008/615/JHA, the evaluation report shall also be based on an evaluation visit and a pilot run that shall be carried out when the Member State concerned has informed the General Secretariat in accordance with the first sentence of Article 36(2) of Decision 2008/615/JHA.
3. Further details of the procedure are set out in Chapter 4 of the Annex to this Decision.
Article 21
Evaluation of the data exchange
1. An evaluation of the administrative, technical and financial application of the data exchange pursuant to Chapter 2 of Decision 2008/615/JHA, and in particular the use of the mechanism of Article 15(5), shall be carried out on a regular basis. The evaluation shall relate to those Member States already applying Decision 2008/615/JHA at the time of the evaluation and shall be carried out with respect to the data categories for which data exchange has started among the Member States concerned. The evaluation shall be based on reports of the respective Member States.
2. Further details of the procedure are set out in Chapter 4 of the Annex to this Decision.
Article 22
Relationship with the Implementing Agreement of the Prüm Treaty
For the Member States bound by the Prüm Treaty, the relevant provisions of this Decision and the Annex hereto once fully implemented shall apply instead of the corresponding provisions contained in the Implementing Agreement of the Prüm Treaty. Any other provisions of the Implementing Agreement shall remain applicable between the contracting parties of the Prüm Treaty.
Article 23
Implementation
Member States shall take the necessary measures to comply with the provisions of this Decision within the periods referred to in Article 36(1) of Decision 2008/615/JHA.
Article 24
Application
This Decision shall take effect 20 days following its publication in the Official Journal of the European Union.
Done at Luxembourg, 23 June 2008. | [
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COMMISSION REGULATION (EEC) No 1179/85
of 6 May 1985
re-establishing the levying of customs duties applicable to third countries on certain products originating in Yugoslavia
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia (1), and in particular Protocol 1 thereto,
Having regard to Article 1 of Council Regulation (EEC) No 3219/84 of 6 November 1984 establishing ceilings and Community supervision for imports of certain products originating in Yugoslavia (2);
Whereas Article 1 of the abovementioned Protocol provides that the products listed below, imported under reduced duty rates according to Article 15 of the Cooperation Agreement are subject to the annual ceiling indicated below, above which the customs duties applicable to third countries may be re-established:
(tonnes)
1.2.3 // // // // CCT heading No // Description // Ceiling // // // // 94.03 // Other furniture and parts thereof: B. Other // 5 350 // // //
Whereas imports into the Community of those products originating in Yugoslavia have reached that ceiling; whereas the situation on the Community market requires that customs duties applicable to third countries on the products in question be re-established,
HAS ADOPTED THIS REGULATION:
Article 1
From 10 May to 31 December 1985, the levying of customs duties applicable to third countries shall be re-established on imports into the Community of the following products:
1.2.3 // // // // CCT heading No // Description // Origin // // // // 94.03 // Other furniture and parts thereof: B. Other // Yugoslavia // // //
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 6 May 1985. | [
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COMMISSION REGULATION (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles 85 and 86 of the EC Treaty (Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Agreement on the European Economic Area,
Having regard to Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (1), as last amended by the Act of Accession of Austria, Finland and Sweden, and in particular Article 24 thereof,
Having regard to Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (2), as last amended by the Act of Accession of Austria, Finland and Sweden, and in particular Article 29 thereof,
Having regard to Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (3), as last amended by the Act of Accession of Austria, Finland and Sweden, and in particular Article 26 thereof,
Having regard to Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (4), as last amended by Regulation (EEC) No 2410/92 (5), and in particular Article 19 thereof,
Having consulted the appropriate Advisory Committees on Restrictive Practices and Dominant Positions,
(1) Whereas a great deal of experience has been acquired in the application of Commission Regulation No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Regulation No 17 (6), Commission Regulation (EEC) No 1630/69 of 8 August 1969 on the hearings provided for in Article 26(1) and (2) of Council Regulation (EEC) No 1017/68 of 19 July 1968 (7), Section II of Commission Regulation (EEC) No 4260/88 of 16 December 1988 on the communications, complaints and applications and the hearings provided for in Council Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (8), as last amended by the Act of Accession of Austria, Finland and Sweden, and Section II of Commission Regulation (EEC) No 4261/88 of 16 December 1988 on the complaints, applications and hearings provided for in Council Regulation (EEC) No 3975/87 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (9);
(2) Whereas that experience has revealed the need to improve certain procedural aspects of those Regulations; whereas it is appropriate for the sake of clarity to adopt a single Regulation on the various hearing procedures laid down by Regulation No 17, Regulation (EEC) No 1017/68, Regulation (EEC) No 4056/86 and Regulation (EEC) No 3975/87; whereas, accordingly, Regulations No 99/63/EEC and (EEC) No 1630/69 should be replaced, and Sections II of Regulations (EEC) No 4260/88 and (EEC) No 4261/88 should be deleted and replaced;
(3) Whereas the provisions relating to the Commission's procedure under Decision 94/810/ECSC,EC of 12 December 1994 on the terms of reference of hearing officers in competition procedures before the Commission (10) should be framed in such a way as to safeguard fully the right to be heard and the rights of defence; whereas for these purposes, the Commission should distinguish between the respective rights to be heard of the parties to which the Commission has addressed objections, of the applicants and complainants, and of other third parties;
(4) Whereas in accordance with the principle of the rights of defence, the parties to which the Commission has addressed objections should be given the opportunity to submit their comments on all the objections which the Commission proposes to take into account in its decisions;
(5) Whereas the applicants and complainants should be granted the opportunity of expressing their views, if the Commission considers that there are insufficient grounds for granting the application or acting on the complaint; whereas the applicant or complainant should be provided with a copy of the non-confidential version of the objections and should be permitted to make known its views in writing where the Commission raises objections;
(6) Whereas other third parties having sufficient interest should also be given the opportunity of expressing their views in writing where they make a written application to do so;
(7) Whereas the various parties entitled to submit comments should do so in writing, both in their own interest and in the interests of sound administration, without prejudice to the possibility of an oral hearing where appropriate to supplement the written procedure;
(8) Whereas it is necessary to define the rights of persons who are to be heard and on what conditions they may be represented or assisted;
(9) Whereas the Commission should continue to respect the legitimate interest of undertakings in the protection of their business secrets and other confidential information;
(10) Whereas compatibility should be ensured between the Commission's current administrative practices and the case-law of the Court of Justice and the Court of First Instance of the European Communities in accordance with the Commission notice on the internal rules of procedure for processing requests for access to the file in cases pursuant to Articles 85 and 86 of the Treaty, Articles 65 and 66 of the ECSC Treaty and Council Regulation (EEC) No 4064/89 (11);
(11) Whereas to facilitate the proper conduct of the hearing it is appropriate to allow statements made by each person at a hearing to be recorded;
(12) Whereas in the interest of legal certainty, it is appropriate to set the time limit for the submissions by the various persons pursuant to this Regulation by defining the date by which the submission must reach the Commission;
(13) Whereas the appropriate Advisory Committee under Article 10(3) of Regulation No 17, Article 16(3) of Regulation (EEC) No 1017/68, Article 15(3) of Regulation (EEC) No 4056/86 or Article 8(3) of Regulation (EEC) No 3975/87 must deliver its opinion on the basis of a preliminary draft decision; whereas it should therefore be consulted on a case after the inquiry in that case has been completed; whereas such consultation should not prevent the Commission from reopening an inquiry if need be,
HAS ADOPTED THIS REGULATION:
CHAPTER I
Scope
Article 1
This Regulation shall apply to the hearing of parties under Article 19(1) and (2) of Regulation No 17, Article 26(1) and (2) of Regulation (EEC) No 1017/68, Article 23(1) and (2) of Regulation (EEC) No 4056/86 and Article 16(1) and (2) of Regulation (EEC) No 3975/87.
CHAPTER II
Hearing of parties to which the Commission has addressed objections
Article 2
1. The Commission shall hear the parties to which it has addressed objections before consulting the appropriate Advisory Committee under Article 10(3) of Regulation No 17, Article 16(3) of Regulation (EEC) No 1017/68, Article 15(3) of Regulation (EEC) No 4056/86 or Article 8(3) of Regulation (EEC) No 3975/87.
2. The Commission shall in its decisions deal only with objections in respect of which the parties have been afforded the opportunity of making their views known.
Article 3
1. The Commission shall inform the parties in writing of the objections raised against them. The objections shall be notified to each of them or to a duly appointed agent.
2. The Commission may inform the parties by giving notice in the Official Journal of the European Communities, if from the circumstances of the case this appears appropriate, in particular where notice is to be given to a number of undertakings but no joint agent has been appointed. The notice shall have regard to the legitimate interests of the undertakings in the protection of their business secrets and other confidential information.
3. A fine or a periodic penalty payment may be imposed on a party only if the objections have been notified in the manner provided for in paragraph 1.
4. The Commission shall, when giving notice of objections, set a date by which the parties may inform it in writing of their views.
5. The Commission shall set a date by which the parties may indicate any parts of the objections which in their view contain business secrets or other confidential material. If they do not do so by that date, the Commission may assume that the objections do not contain such information.
Article 4
1. Parties which wish to make known their views on the objections raised against them shall do so in writing and by the date referred to in Article 3(4). The Commission shall not be obliged to take into account written comments received after that date.
2. The parties may in their written comments set out all matters relevant to their defence. They may attach any relevant documents as proof of the facts set out and may also propose that the Commission hear persons who may corroborate those facts.
Article 5
The Commission shall afford to parties against which objections have been raised the opportunity to develop their arguments at an oral hearing, if they so request in their written comments.
CHAPTER III
Hearing of applicants and complainants
Article 6
Where the Commission, having received an application made under Article 3(2) of Regulation No 17 or a complaint made under Article 10 of Regulation (EEC) No 1017/68, Article 10 of Regulation (EEC) No 4056/86 or Article 3(1) of Regulation (EEC) No 3975/87, considers that on the basis of the information in its possession there are insufficient grounds for granting the application or acting on the complaint, it shall inform the applicant or complainant of its reasons and set a date by which the applicant or complainant may make known its views in writing.
Article 7
Where the Commission raises objections relating to an issue in respect of which it has received an application on a complaint as referred to in Article 6, it shall provide an applicant or complainant with a copy of the non-confidential version of the objections and set a date by which the applicant or complainant may make known its views in writing.
Article 8
The Commission may, where appropriate, afford to applicants and complainants the opportunity of orally expressing their views, if they so request in their written comments.
CHAPTER IV
Hearing of other third parties
Article 9
1. If parties other than those referred to in Chapters II and III apply to be heard and show a sufficient interest, the Commission shall inform them in writing of the nature and subject matter of the procedure and shall set a date by which they may make known their views in writing.
2. The Commission may, where appropriate, invite parties referred to in paragraph 1 to develop their arguments at the oral hearing of the parties against which objections have been raised, if they so request in their written comments.
3. The Commission may afford to any other third parties the opportunity of orally expressing their views.
CHAPTER V
General provisions
Article 10
Hearings shall be conducted by the Hearing Officer.
Article 11
1. The Commission shall invite the persons to be heard to attend the oral hearing on such date as it shall appoint.
2. The Commission shall invite the competent authorities of the Member States to take part in the oral hearing.
Article 12
1. Persons invited to attend shall either appear in person or be represented by legal representatives or by representatives authorised by their constitution as appropriate. Undertakings and associations of undertakings may be represented by a duly authorised agent appointed from among their permanent staff.
2. Persons heard by the Commission may be assisted by their legal advisers or other qualified persons admitted by the Hearing Officer.
3. Oral hearings shall not be public. Each person shall be heard separately or in the presence of other persons invited to attend. In the latter case, regard shall be had to the legitimate interest of the undertakings in the protection of their business secrets and other confidential information.
4. The statements made by each person heard shall be recorded on tape. The recording shall be made available to such persons on request, by means of a copy from which business secrets and other confidential information shall be deleted.
Article 13
1. Information, including documents, shall not be communicated or made accessible in so far as it contains business secrets of any party, including the parties to which the Commission has addressed objections, applicants and complainants and other third parties, or other confidential information or where internal documents of the authorities are concerned. The Commission shall make appropriate arrangements for allowing access to the file, taking due account of the need to protect business secrets, internal Commission documents and other confidential information.
2. Any party which makes known its views under the provisions of this Regulation shall clearly identify any material which it considers to be confidential, giving reasons, and provide a separate non-confidential version by the date set by the Commission. If it does not do so by the set date, the Commission may assume that the submission does not contain such material.
Article 14
In setting the dates provided for in Articles 3(4), 6, 7 and 9(1), the Commission shall have regard both to the time required for preparation of the submission and to the urgency of the case. The time allowed in each case shall be at least two weeks; it may be extended.
CHAPTER VI
Final provisions
Article 15
1. Regulations No 99/63/EEC and (EEC) No 1630/69 are repealed.
2. Sections II of Regulations (EEC) No 4260/88 and (EEC) No 4261/88 are deleted.
Article 16
This Regulation shall enter into force on 1 February 1999.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 December 1998. | [
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Commission Regulation (EC) No 523/2002
of 22 March 2002
fixing the refunds applicable to cereal and rice sector products supplied as Community and national food aid
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals(1), as last amended by Commission Regulation (EC) No 1666/2000(2), and in particular the third subparagraph of Article 13(2) thereof,
Having regard to Council Regulation (EC) No 3072/95 of 22 December 1995 on the common organisation of the market in rice(3), as last amended by Regulation (EC) No 411/2002(4), and in particular Article 13(3) thereof,
Whereas:
(1) Article 2 of Council Regulation (EEC) No 2681/74 of 21 October 1974 on Community financing of expenditure incurred in respect of the supply of agricultural products as food aid(5) lays down that the portion of the expenditure corresponding to the export refunds on the products in question fixed under Community rules is to be charged to the European Agricultural Guidance and Guarantee Fund, Guarantee Section.
(2) In order to make it easier to draw up and manage the budget for Community food aid actions and to enable the Member States to know the extent of Community participation in the financing of national food aid actions, the level of the refunds granted for these actions should be determined.
(3) The general and implementing rules provided for in Article 13 of Regulation (EEC) No 1766/92 and in Article 13 of Regulation (EC) No 3072/95 on export refunds are applicable mutatis mutandis to the abovementioned operations.
(4) The specific criteria to be used for calculating the export refund on rice are set out in Article 13 of Regulation (EC) No 3072/95.
(5) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
For Community and national food aid operations under international agreements or other supplementary programmes, and other Community free supply measures, the refunds applicable to cereals and rice sector products shall be as set out in the Annex.
Article 2
This Regulation shall enter into force on 1 April 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 March 2002. | [
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COMMISSION DECISION of 15 October 1997 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case No IV/M.938 - Guinness/Grand Metropolitan) (notified under document number C(1997) 3169) (Only the English text is authentic) (Text with EEA relevance) (98/602/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Agreement on the European Economic Area, and in particular Article 57(2)(a) thereof,
Having regard to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (1), as amended by the Act of Accession of Austria, Finland and Sweden, and in particular Article 8(2) thereof,
Having regard to the Commission Decision of 20 June 1997 to initiate proceedings in this case,
Having given the undertakings concerned the opportunity to make known their views on the objections raised by the Commission,
Having regard to the opinion of the Advisory Committee on Concentrations (2),
WHEREAS:
(1) On 16 May 1997 Guinness plc ('Guinness`) and Grand Metropolitan plc ('GrandMet`) notified to the Commission their intention to create a new company, to be called GMG Brands plc ('GMG`) in which they will merge all their business activities.
(2) By Decision of 6 June 1997 the Commission ordered the continuation of the suspension of the notified concentration, pursuant to Article 7(2) and Article 18(2) of Regulation (EEC) No 4064/89 ('the Merger Regulation`) until it takes a final decision.
(3) On 20 June 1997, after examination of the application, the Commission concluded that the operation fell within the scope of the Merger Regulation and raised serious doubts as to its compatibility with the common market and decided to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation.
I. THE PARTIES
A. GUINNESS
(4) Guinness is the UK-registered holding company of a group whose principal business activities are the production and distribution, throughout the world, of spirits (United Distillers - 'UD`) and the brewing of beer. It also has interests in hotels and in publishing.
B. GRANDMET
(5) GrandMet is the UK-registered holding company of a group whose principal activities are the production and worldwide distribution of spirits (International Distillers and Vintners - 'IDV`), also food manufacturing (Pillsbury, Haagen-Dazs) and ownership of fast-food restaurants (Burger King).
II. THE OPERATION
(6) The operation consists of the merger of the two parties' businesses to create GMG. It will be effected by means of a Scheme of Arrangement of GrandMet under section 425 of the UK Companies Act 1985. Guinness will be renamed GMG Brands plc and its shareholders will retain their holdings through shares in the new company. The business of GrandMet will be vested in GMG; shareholders in GrandMet will receive one GMG share for each GrandMet share. Immediately after the merger, former GrandMet shareholders will hold approximately 52,7 % of GMG, and former Guinness shareholders the remainder.
III. THE CONCENTRATION AND THE COMMUNITY DIMENSION
(7) The operation is a merger of the two parties and is accordingly a concentration under Article 3(1)(a) of the Merger Regulation. The parties have combined aggregate worldwide turnover of more than ECU 5 000 million (Guinness has turnover of more than ECU 5 000 million and GrandMet more than ECU 11 000 million) and each has Community-wide turnover of more than ECU 250 million (each party having turnover of more than ECU 3 000 million). They do not achieve more than two thirds of the latter within one and the same Member State. The operation therefore has a Community dimension. It does not fulfil the criteria under Article 2 of Protocol 24 to the EEA Agreement, and therefore does not fall to be treated as a cooperation case under that Agreement.
IV. COMPATIBILITY WITH THE COMMON MARKET AND WITH THE FUNCTIONING OF THE EEA AGREEMENT
A. RELEVANT PRODUCT MARKETS
1. Horizontal aspects
(8) The activities of the parties overlap materially in the supply (manufacture and wholesale distribution) of spirits throughout the world. Both parties manufacture a range of spirits covering all the main internationally-recognised spirit types. However, they do not manufacture local spirit types such as Korn, popular in Germany, or genever, popular in Belgium and the Netherlands. Spirits are produced by the distillation - heating and condensation - of fermented fruits or cereals with water to yield a strong yet palatable alcohol. The distillate may then be matured in bulk and/or blended with other alcohols or other flavourings before bottling.
(9) A continuum of possible product market definitions was put forward in the course of the Commission's investigations. In decreasing order of breadth, they comprise: 'all spirits` (as originally proposed by the parties); various groupings - for example, 'brown` and 'white` spirits, (that is, separating whiskey (3), brandy and so forth on the one hand from gin, vodka and so forth on the other); separate markets for each spirit of the same general type, such as gin, whisky, brandy, vodka, rum, further segmentation by origin/quality, especially for whiskey, separating, for example, Scotch whisky from other types; and, finally, subdividing each (narrow) spirit type by price/quality - thus, Scotch would be subdivided into, for example, 'de luxe`, 'premium` and 'standard`. The various possibilities are examined below.
(a) All spirits
(10) The parties provided details of consumer surveys which, in their view, suggested that consumers were willing to substitute one type of spirit for another, and even to substitute other drinks, according to the occasion, availability and price. The Commission noted, however, that where those surveys (most of which were originally aimed at addressing taxation issues) employed price-change data, the overall levels of change (which mainly reflected changes in taxation) were much higher than those normally used by competition authorities as an aid to market definition. It also noted that occasion-based consumption patterns did not of themselves indicate a wider product market. The tendency to consume different spirit types on different occasions (for example, gin before a meal, brandy afterwards) implies that consumers have preferences for several specific types rather than that they are indifferent as to which type they consume (which they would have to be if the products were close substitutes). This was supported by the Commission's own investigations. The bulk of competitors and customers who responded to the Commission's question on the subject indicated that an increase in the price of their preferred spirit brand or type would not induce them to change to a different product category. Moreover there are significant supply-side differences. All spirit types involve distillation, but ingredients and processes vary considerably. On the basis of all these considerations, the Commission considered that an 'all spirits` market definition was unduly wide for the purposes of assessing this case.
(b) White and brown spirits
(11) 'White` spirits: As the parties pointed out, there appears to be some scope for employing the same basic distilled grain spirit to produce a variety of white spirit types (such as gin or vodka and their derivatives). However, other aspects of the manufacturing process differ - for example, to produce gin, juniper (and sometimes other flavours) must be added during distillation or afterwards; vodka is usually unflavoured, but may be distilled several times before bottling, white rum uses a different fermentation process (and ingredients) from those used in gin or vodka production. On the demand side, the parties themselves revised their initial view to some extent, stating that in practice consumers did not consider the different main white spirit types (gin, vodka) to be substitutes for each other; the age and social profiles of the consumers concerned were significantly different.
(12) 'Brown` spirits: For brown spirits such as whiskey, brandy, or dark rum, there is effectively no scope for supply-side substitution. They acquire their distinctive flavour from the ingredients used in the distillation and from the maturation process, whereas white spirits are seldom matured and have little flavour of their own. On the demand side, as already mentioned, consumption patterns do not support the notion of a brown spirits market - consumers may, for example, drink both brandy and whiskey, but on different occasions, not as substitutes.
(c) Segmentation by spirit type
(13) The strongest determinant of product market boundaries in spirits appears to be that of consumer demands and preferences, since they will drive the stocking and marketing policies of retailers, wholesalers and ultimately manufacturers. Third parties - both competitors and customers - consulted by the Commission generally supported a relatively narrow definition, characterising most spirit drinkers as having a degree of loyalty towards one or a few specific brands within the category (or categories) of choice, and with occasion-based consumption patterns, which were well-entrenched and unlikely to be seriously disturbed by relatively small price variations between types.
(14) The importance of branding, and its application to individual spirit types, is a key characteristic of competition in the spirits industry and is not consistent with a product market wider than that for each main spirit type. Product development, advertising and promotion expenditure are normally focused on the brand rather than the category or company, especially at consumer level. Thus, for example, advertisements are typically for Johnnie Walker' whisky rather than for Guinness's range of whiskies or for their spirit products collectively. It is also of interest in this connection that, in general, brands do not appear to be easily transferable between spirit types; for example, there is no Johnnie Walker gin or Gordon's whisky. This behaviour is consistent with product markets based on each spirit type, since it implies that manufacturers have adopted a strategy of branding for, and within, each spirit type in order to satisfy specific consumer demands in terms of taste, price and image.
(d) Segmentation within spirit type
(15) Some third parties considered that country of origin was an important defining factor for some, if not all spirit types. This point was most frequently raised in regard to whiskey, and in particular Scotch. It was pointed out that the industry markets Scotch, Irish, American, Canadian and other whiskies separately, and that for Scotch in particular, national legislation laid down certain requirements (it must be wholly distilled in Scotland and matured there for at least three years before it can be sold as Scotch).
(16) In the Community as a whole, Scotch accounts for the great majority (over 80 %) of whiskey sales, and the parties' main interests are in Scotch rather than other whiskey types. For the purposes of the present case, therefore, the issue of segmentation of whiskey by origin is only analysed further where the different possible definitions would lead to significantly different shares and overlaps (notably, Spain and Ireland).
(17) A similar approach is adopted to the possible substitutability between gin and genever, where it has been suggested that it is unnecessary to separate 'London` types from local products, and, in the Benelux countries in particular, from 'Genever`. The issue is considered further in the section on Belgium/Luxembourg below.
(e) Further subdivision by price/quality
(18) In most of the main spirit types, and especially in whiskey, there is a wide range of products available at different prices. Some third parties have suggested that there are in effect separate markets for each quality level because, for example, a consumer who habitually drank a premium brand would not regard a cheaper one as providing an adequate substitute in terms of taste, image and so forth. Price data provided by the parties show generally that in most markets there tend to be products available (both from the parties and from their competitors) at all points along the range. However, those price series data do not take account of the importance of particular brands in terms of their market share. Accordingly this point is examined further in those product and geographic markets where the distinction is likely to be relevant.
(f) Liqueurs
(19) Given that there are many different liqueurs, each with highly distinctive taste and other characteristics, it appeared reasonable to assume, as a point of departure, that in general each liqueur constituted a separate, niche product market. No information or argument was received during the Commission's investigation to suggest otherwise.
2. Vertical issues
(20) Like most of the major players in the spirits industry, the parties' distribution systems in their developed markets show some degree of vertical integration, with the use of wholly owned subsidiaries responsible for the exclusive distribution of their products at national level. Like their competitors, the parties may distribute various spirits on behalf of third party manufacturers or brand owners. In general, however, such third-party distribution accounts for only a relatively small proportion of their total distribution activity. This suggests that the primary function of these vertically integrated distribution operations is to protect the parties' brands rather than to undertake distribution on behalf of others. Integration into distribution allows the supplier to maintain control over the marketing and distribution of the brands which it owns, thereby safeguarding the all-important image of those brands in the market-place. Accordingly, their role as independent distributors, competing actively for distribution of third parties' brands, is likely to be limited (for example, to those instances where they do not possess an important brand of their own in a particular product category). In those instances where the parties appear to play a more significant role in the distribution of third-party products, this is considered in more detail below.
(21) On-trade and off-trade (4): A question arises as to whether the conditions of competition are sufficiently different to justify separate treatment for supplies to and from the on-trade and off-trade. A number of elements could be taken to suggest that those retail channels might constitute separate product markets. For example, on-trade consumers usually buy a smaller measure (a glass rather than a bottle) and the purchase also includes the provision of the related services (use of the premises and so forth). Consumers may also be less price-sensitive when purchasing from the on-trade; for example, in the United Kingdom, a 5 % change would typically give a difference of a few pence on a glass compared to some 50 pence on a bottle. However, in the present case the primary impact of the operation is in terms of supplies to wholesalers and large retailers, since small retailers, whether in the on-trade or the off-trade, acquire their supplies from those sources rather than direct from the parties. Therefore the different characteristics of each channel are taken into account where relevant in the assessment of the affected markets.
(22) Duty-free sales: The parties submitted that duty-free sales were a separate market. Duty-free purchases of spirits are only available to those travelling by air or sea across borders. They are often made as gifts (as evidenced by the wide range of special packages available in duty-free shops) and probably compete more strongly with other duty-free goods such as perfume rather than with non-duty-free spirits. No third-party evidence was received to contradict this view.
3. Conclusion
(23) In view of the above, the Commission considers that the relevant product markets in this case, at all levels of the supply chain, are in general no wider than those for each of the individual internationally-recognised main spirit types (whiskey, gin, vodka, rum and so forth) and for each liqueur. Narrower definitions may, however, be appropriate to specific product or geographic areas. Where such distinctions are likely to be relevant to the merger's effect on competition, they are considered further below. The Commission accepts, however, that duty-free sales of spirits constitute a separate market.
B. RELEVANT GEOGRAPHIC MARKET
(24) The parties contended that the relevant geographic market was Community (or EEA) wide, pointing to relatively low transport costs, absence of import restrictions, moves towards harmonisation of taxation, and the extent of parallel trade, assisted by the development of the 'under-bond` warehousing system by which spirits can be shipped across borders without payment of duty. The Commission, however, considers the relevant markets to be essentially national, for the following reasons.
(25) Consumption patterns vary widely between Member States. The total amount consumed per capita varies greatly. In several Member States, locally produced spirits are prominent which are virtually unknown elsewhere, such as Korn in Germany or ouzo in Greece. Even among the internationally recognised types, consumption varies significantly between countries, both as regards the type of spirit and in terms of brands.
(26) Distribution is also organised primarily on a national basis. Although production facilities are concentrated, with a few plants serving the whole of the Community, the parties, like their main competitors, operate wholly owned subsidiaries (or, in some cases, joint ventures) which handle primary distribution and marketing in each national territory concerned.
(27) There is varying scope for parallel trade in spirits between Member States (according to factors such as geographic location and relative tax and currency levels). But major taxation and regulation differences continue to exist between Member States, and these are reflected, to a large extent, in retail prices. If parallel trade (or cross-border purchases by consumers) were sufficient to create a single market across the Community, it would become impossible for national governments to sustain these distinctions in the long term, and retail prices would vary little between Member States - indeed, there would cease to be any incentive to engage in parallel trade.
(28) The position is, however, different for duty-free sales. These have characteristics, such as packaging and quantity (and sometimes alcoholic strength) differences compared to non-duty-free equivalents, and an international (not just Community) and transient customer base, which suggest that the market for them is likely to be at least EEA-wide.
(29) Accordingly, the Commission concludes that, with the exception of duty-free sales, the relevant geographic markets in this case are no wider than national.
C. ASSESSMENT
1. The structure of the market
(30) The operation will combine the activities of the two largest spirits suppliers in the world (and, on the basis of sales figures by value, the two largest in the Community) creating a company approximately twice the size of its nearest rival, Allied Domecq.
(31) However, as explained above, competition takes place principally within each different spirit type, and at national level. The Commission's analysis has accordingly focused on those product/national markets where the merger produces potentially significant market shares and aggregations, and/or the possibility of a 'portfolio effect` as described below. The individual country markets are considered in detail in the appropriate sections of this Decision. Nevertheless there are some general features common to the individual country assessments, and these are considered here.
(a) Manufacturing
(32) Although the parties will have the scope to rationalise their production facilities, the merger does not seem likely to have a major effect on competition at that level. Their production facilities in the Community are already quite concentrated, especially with regard to gin and vodka, with a few plants responsible for most of the output, reducing the opportunity for rationalisation of capacity or other economies of scale which might lead to increased barriers to entry at that level. In whiskey (the parties' production being effectively all Scotch) the scope for rationalisation or other economies from the merger is also limited. There is some excess capacity, but distilleries can fairly easily be closed temporarily and brought back into operation if demand recovers (the parties have several plants in this condition). In the case of malt whisky - the high-quality product derived exclusively from malted barley, which is mixed with the cheaper grain whisky (mainly made from maize and so forth) to produce the popular blends and is also sold on its own - the product of each distillery is highly distinctive in colour and flavour. In consequence, the different malts are in continual demand both for sale on their own and for blending and there is accordingly little scope for rationalisation.
(33) Grain whisky production, in which the parties will have a [40-50 %] (5) combined share of capacity - increment to Guinness (already the leader) of [15-25 %] - presents relatively few barriers to entry by comparison with malt whisky, and there remain significant competitors, namely Allied Domecq with [15-25 %] and Grants with [15-25 %]. The plant (or still) employed is effectively the same as that used for white spirits, and in contrast to the pot stills used for malt whisky can be run continuously. Moreover, flavour and colour characteristics, and hence the nature and quality of the ingredients (especially the water) used to produce them, are of much less importance.
(34) Some third parties raised the possibility that the parties would be able to foreclose supplies of, in particular, malt whiskies to competitors, many of whom use some of the parties' malts to make their blends. The parties' shares, and the increment, in malt whisky are lower than in grain (combined shares of [25-35 %] increment to Guinness, the leader, of [< 10 %]) and again there will remain some substantial competitors, such as Seagram with [10-20 %] and two others each with about [5-15 %].[ . . . ]
(35) In the light of the above, therefore, the Commission takes the view that the merger will not create or enhance a dominant position at the manufacturing level in any relevant product market.
(b) Branding
(36) As explained above, the spirits industry is to some extent vertically integrated, with most of the largest players (including the parties) active in both manufacture and distribution, although integration into retail is uncommon (the United Kingdom being a partial exception). Vertical integration into distribution is advantageous in product markets where branding is important, because it allows the brand-owner to retain full control of product development, promotion and marketing. Retailers play relatively little independent role in advertising branded spirit products - apart from their own brands, if any - although they will work closely with manufacturers where there is mutual advantage in doing so.
(c) Distribution
(37) The larger spirits manufacturers also engage in distribution on behalf of other suppliers, typically through exclusive agreements covering a particular national territory. This feature provides access to a route to market for smaller suppliers without a distribution network of their own. However it also reduces the scope for competition in distribution from independent distributors, and increases the barriers to entry for a potential new supplier of a brand which would compete directly with one owned by the vertically-integrated supplier.
(d) Portfolio effects
(38) One competitor remarked that 'In short the market power deriving from a portfolio of brands exceeds the sum of its parts`.
(39) In addition to horizontal overlaps, assessed in detail below, a key result of the merger, recognised as a major part of its rationale by the parties and by third parties, is that it combines the two parties' ranges or portfolios of products and brands.
(40) The holder of a portfolio of leading spirit brands may enjoy a number of advantages. In particular, his position in relation to his customers is stronger since he is able to provide a range of products and will account for a greater proportion of their business, he will have greater flexibility to structure his prices, promotions and discounts, he will have greater potential for tying, and he will be able to realise economies of scale and scope in his sales and marketing activities. Finally the implicit (or explicit) threat of a refusal to supply is more potent.
(41) The strength of these advantages, and their potential effect on the competitive structure of the market, depends on a number of factors, including: whether the holder of the portfolio has the brand leader or one or more leading brands in a particular market; the market shares of the various brands, particularly in relation to the shares of competitors; the relative importance of the individual markets in which the parties have significant shares and brands across the range of product markets in which the portfolio is held; and/or the number of markets in which the portfolio holder has a brand leader or leading brand.
(42) In addition the strength of a portfolio effect has to be considered in the context of the relative strength of competitors' brands and their portfolios.
(43) The portfolio effect has been recognised in two recent cases in the soft drinks sector (6).
(44) Furthermore in response to the Commission's enquiries, competitors and customers recognised the portfolio effect in practice; for example, of ten firms responding to the question 'does possession of a leading brand in all or most spirit categories help sales of spirits in general?` eight replied that it would help a lot.
(45) At the hearing, major competitors of the parties confirmed the existence of a portfolio effect and provided evidence of how their portfolio could be used.
(46) The parties have said that consumers buy brands and not portfolios. That is true. However, the parties do not sell their products to the final consumers. They sell them to intermediaries, multiple retailers, wholesalers and others. Those customers would buy a range of products from GMG, and the fact that GMG would be able to offer in many national markets a wide and deep portfolio of leading brands would give the combined entity advantages in dealing with its clients. The strength of any portfolio effect will vary from geographic market to geographic market. In the present case, the only market in which it has been considered to be a significant feature in the context of the assessment is Greece, and it is accordingly assessed further in the section on Greece below.
2. Barriers to entry
(47) Portfolio power can accordingly be seen, in part, as a barrier to entry. There are, however, a number of other barriers, which are outlined in general terms here, although their precise strength will vary from country to country and they are accordingly examined in more detail, where appropriate, in the relevant sections.
(a) Commission's initial view
(48) In its 'Statements of objections`, the Commission identified the following as potentially significant barriers.
(49) General market conditions do not favour entry, since there are barriers at all levels of the supply chain.
(50) As mentioned above, in the Community as a whole spirits demand is in decline. In general, therefore, sales can only be obtained at the expense of competitors unless a new niche can be found. Entry is further restrained by government restrictions on alcohol advertising, promotion and consumption. Retailers and wholesalers generally require a licence, in many instances their number and location is restricted to what governments consider appropriate, and their opening hours are also usually restricted. As in the case of tobacco, most countries restrict advertising (especially on television). There are also a variety of restrictions, varying from country to country, on matters such as labelling, strength and quantities that may be offered for sale.
(51) Entry into spirit manufacturing is not technically difficult, although entry into Scotch is constrained by the need to have access to supplies of matured malt whisky from Scotland or else to develop one's own maturing facilities in that country (which by definition will take several years).
(52) Distribution and marketing are potentially significant barriers. As explained above the supply chain is characterised by branding and portfolio effects which increase the costs and time required for successful entry even with a clearly distinctive and innovative product or range. It is said for example that it took 10 years for GrandMet to develop its Bailey's Irish Cream liqueur into a recognised brand carried by most retailers, and during most of that time it was effectively unopposed. Together with niche products like fruit-flavoured, lower-alcohol liqueurs (such as Archer's peach schnapps and Malibu coconut liqueur) it is almost the only significant product innovation in the market of recent years. There has been more line extension (for example by introducing a premium whisky brand with a name similar to an existing standard one) but that option is available only to those with established products. Famous Grouse Scotch (Matthew Gloag) is almost the only 'new` brand of a major spirit from the parties' competitors to have gained a material share across the range of Community markets, and again its development to that position has taken a considerable number of years. By contrast, Johnnie Walker is, in the words of its own advertising 'still going strong` after some 150 years, an illustration of the power of an established brand. Japanese whiskies, although strong on their home markets and based closely on Scotch in terms of quality and nature of ingredients and the manufacturing process, have so far failed to make significant inroads into Community markets despite considerable promotional efforts. Spanish whiskey is virtually unknown outside Spain.
(53) New entrants need to have, or quickly develop or acquire, not just one desirable product, but a range of them, in order to counter the portfolio power of competitors such as GMG. Using a third-party distributor may assist in this, since it enables the entrant's products to be sold alongside the distributor's existing range. But the vertical integration of the major players in the industry limits the effectiveness of this approach, since an entrant's product is unlikely to be accepted or marketed vigorously by the distributor if it competes directly with a brand which he owns or for which he has the agency. Entrants will need to advertise and promote their brands heavily over a long period in order to overcome consumer resistance and the barrier presented by the reputation of the established players. Retailers and wholesalers, especially large ones, will often expect a significant listing fee for carrying a new product (one respondent from the United Kingdom indicated that the fee could reach hundreds of thousands of pounds per retailer). The entrants will need to take account of the importance of on-trade consumption in shaping consumer demand for a product, since customers will be more likely to try a new product if they only have to buy a glass of it rather than a bottle. They will also need to have resources to defend themselves from attack by the parties using their incumbency advantages, for example, by targeting selective discounts or price reductions at new entrants' brands. General market conditions are not favourable to the taking of such risks. Overall, therefore, entry barriers appear generally to be very high and likely to deter entry.
(b) The parties' response
(54) In their response to the Commission's 'Statements of objections`, the parties made a number of general points seeking to rebut this view. Those points are examined immediately below while their points on specific markets are dealt with in the relevant sections.
(55) The parties referred to a number of substantial international spirits companies which had entered the Community market within the last 10 years, namely American Brands, Suntory, Bacardi Martini and Brown Forman. Although all these are undoubtedly substantial companies, their strength varies between the national markets and several are not new entrants in the sense that they were already well established in the spirits sector, albeit not necessarily in the same national or product markets.
(56) American Brands owns the Jim Beam bourbon whiskey brand and has a range of other brands which it either owns or distributes. It has acquired two UK distillers, White & McKay and Invergordon, and as a result has a share of around [5-15 %] in the UK whiskey and vodka markets. But its brands are generally secondary rather than category leaders and its share in the individual country markets identified in this Decision as causing concern is generally very small, both overall and in the main spirit categories. Furthermore, its products were established before they were acquired by American Brands.
(57) Suntory is a Japanese producer, primarily of whiskey. It has acquired two Scotch malt whisky distilleries and undoubtedly has substantial resources. But its share in any spirit category in any of the markets identified as being of concern is very small (less than [< 5 %]).
(58) Bacardi-Martini is only a new entrant in a very narrow sense, since it is the result of the merger in 1993 of two already very well-established companies, Bacardi and Martini-Rossi, the latter being domiciled in the Community. The products were already established. On the same basis, presumably GMG would itself be classed as a new entrant after the merger.
(59) Brown Forman's position is similar to that of American Brands. It owns Jack Daniels, a leading bourbon, and Southern Comfort, an orange-flavoured bourbon-based liqueur. But outside those niche areas its share is very small in the markets of concern. Both products were already well established.
(60) The parties also pointed to expansion by existing suppliers as evidence that barriers were low, asserting that such expansion showed that there was an adequate threat of or potential for entry to ensure that competition was not significantly reduced following the merger.
(61) Various incumbents have indeed diversified geographically and/or in product terms, for example Matthew Gloag has successfully developed its Famous Grouse whisky outside the United Kingdom and other Scotch producers, such as Grants, have diversified into gin and/or vodka. Nevertheless, those developments have generally occurred at a slow pace. For example, it took some four years for Famous Grouse to achieve a 5 % share of whiskey in Greece, despite considerable advertising spend and the brand's high profile in the United Kingdom.
(62) The parties sought to rebut the Commission's argument that advertising and promotion costs represented a significant barrier by suggesting, first, that regulation of advertising merely presented a level playing field to new entrants. The Commission does not accept the level playing field argument. Restrictions on advertising favour incumbents, whose products are known to customers and so require less advertising, against entrants, whose products are by definition unknown to customers. Generally, and especially for entry into the mainstream categories (that is internationally recognised spirit types or categories) where incumbents are well-established, significant sunk costs in terms of advertising and promotional costs are an essential prerequisite of entry, especially given the importance of branding.
(63) The parties suggested that listing fees charged by retailers were not a significant barrier but exemplified retailers' buyer power. Matthew Gloag, for example, had evidently found the necessary resources to fund them for Famous Grouse and retailers were free not to charge them if they wished to encourage an entrant. The Commission accepts that listing fees are not an insuperable deterrent. Nevertheless they raise the price of marketing a new brand or product in comparison with that of an established one and to that extent they constitute an entry barrier.
(64) The parties also argued that distribution was not the bottleneck in preventing and limiting entry that the Commission, in its 'Statements of objections`, had claimed it to be. They pointed out that in all Member States there were a number (in some, a large number) of distributors willing to undertake distribution of new products and brands. They provided information suggesting that agency distribution agreements were typically of short duration (if they had any fixed term) and that changes were frequent. They also indicated that part of the rationale for their (and competitors') move towards wholly-owned distribution facilities was to guarantee a route to market for their products in the face of the risks of losing existing distribution arrangements if a competitor's offer became attractive to the distributor concerned. In itself this reduces the scope for independent distributors who no longer have access to many brands, no matter what terms they might offer.
(65) Nevertheless it remains the case that in several Community markets the parties already have a large share of spirits distribution. Where this occurs there is a risk that new entrants will find themselves unable to obtain a route to market on favourable terms for any product which the parties may consider to threaten those in their own portfolio. Since the parties' portfolio will be much enhanced by the merger, the merger is likely to increase this risk. Direct distribution, by supplying direct to retailers without the use of an agent or intermediary such as a wholesaler, may be a possible alternative in some product and/or geographic markets. But in practice this is unlikely to be a viable option in most cases. In the case of supplies to supermarkets, new entrants are likely to face a requirement to pay a listing fee or to have to agree to similarly onerous terms and conditions as the price of getting their product onto the shelves. The on-trade is more fragmented, making direct distribution generally uneconomic for suppliers.
(c) Conclusions on entry barriers
(66) The Commission accepts that new entry is possible and has indeed taken place. But the scale and scope of that entry does not, in general, appear to have been significant, especially in the main spirit categories. This, together with the other factors described above, tends to reinforce the Commission's initial view that barriers to entry in this market are generally high. However, their precise importance varies from country to country and between products and is accordingly taken further into account in the sections below concerning individual countries.
3. Countervailing buyer power
(67) Where entry barriers are high and market structures concentrated, the size and strength of customers in the individual national markets is particularly important to the assessment of the effect of a merger both in terms of horizontal overlap and of any associated portfolio power. Again, the position in the present case varies considerably between countries and is discussed further in the next section of this Decision. But there are also some common elements which are examined here.
(a) Commission's initial view
(68) The Commission considered that, in summary, the requisite structure, in consumer markets, for the exercise of countervailing power as a means of preventing creation or reinforcement of a dominant supply position at a higher level in the distribution chain appeared to be as follows. The retail and wholesale customers must include several who are each responsible for a significant share of sales by the dominant supplier and by his competitors and have the necessary technical facilities and bargaining skills to put that advantage to use in the buying process. Crucially, there must be alternative suppliers capable of offering an equivalent range of products on equally favourable terms and conditions and the retailer or wholesaler must have effective power to delist brands if the terms on which he is offered them are not satisfactory. The Commission doubted whether those conditions were generally met in the spirits sector, especially as regards the ability to delist. A number of suppliers, retailers and wholesalers, claimed that it would be uneconomic to delist a leading brand.
(b) The parties' response
(69) The parties strongly disagreed with that analysis and made a number of submissions in support of the contrary view, as follows.
(70) The parties produced data showing the total share for all products of the top five retailers in the Member States identified by the Commission as of concern. Those shares ranged from some [5-15 %] in Greece to some [30-40 %] in Spain. They produced similar data showing the shares of their own sales in the countries concerned accounted for by their largest five customers in each. Those shares varied from some [15-25 %] for Greece to over [55-65 %] for Belgium (7). They also stressed the importance of own-label sales, not only by supermarkets, but also in some instances in their view, by the on-trade.
(71) The parties also quoted the views of a leading UK stockbroker and merchant bank (HSBC) on buyer power and its implications for the merger. It suggested that the supplier had more to lose than the retailer in any negotiation over the possible delisting of the supplier's brands, principally because, if delisting occurred, the retailer would still have all the competitors' brands, plus their own brand (which in the United Kingdom - the example given - accounted for as much as 60 % of the retailer's sales) whereas the supplier would have lost a major customer.
(72) The parties disputed the Commission's view that customers for spirits were ill-informed about prices because the products were strongly differentiated (branding) and were purchased relatively infrequently. The parties observed that spirits were purchased more frequently than some other household products such as electrical goods and suggested that some spirit brands were so-called known value items since they were widely advertised and consumers could, for example, compare their prices with that of a duty-free equivalent.
(73) Finally, the parties challenged any notion that any of their products were unique, must-stock items. They suggested that their brands were no more (or less) essential to retailers than those of their main competitors. Retailers and wholesalers would need a range of the main brands, but not necessarily all of them. They also provided details from various countries of instances where their products had been delisted.
(c) Commission's further assessment
(74) The Commission has not claimed that buyer power is non-existent in the spirits sector; rather its concern is that it will be insufficient to prevent the creation or reinforcement of dominance in the present case. As far as the dependency figures given by the parties are concerned, the Commission notes that dependency varies considerably between countries and that the share of the parties' turnover accounted for by the five largest customers in, for example, Greece is relatively low (some [15-25 %]). Also, since the on-trade is, in most Member States, much more fragmented than the off-trade, both at wholesale and retail level, those figures may overstate the true strength of countervailing power, since many on-trade retailers and their suppliers will not have it. These factors are taken into account in the consideration of buyer power in the individual country sections that follow.
(75) In the off-trade, the importance of own brands is acknowledged. But if retailers and consumers really found own-brands (whose margins are, according to the parties, much higher than those of the main brands) so attractive, it would seem reasonable to expect a much greater degree of commoditisation and the disappearance of brands from the shelves than has actually occurred. Retailers appear to find it necessary to stock a wide range of brands, presumably because, as several have indicated to the Commission in this case, if they do not they risk losing a customer, not only for the whisky and so forth, but for all the rest of their purchases from the store as well.
(76) It follows that permanent delisting of major brands is generally not a realistic option for retailers; accordingly, suppliers of those brands can, if necessary, get tough in the knowledge that the worst they can expect is a temporary delisting, perhaps limited to the less important sizes. That could very well be survivable, especially if, like the parties, the supplier also supplies a wide range of other brands and products. The stronger the brand and the portfolio in question, the less realistic the threat of delisting. By contrast, a less fortunate supplier could well risk a permanent loss of his main or only product.
(77) As regards consumer awareness of price and ability to compare, the Commission remains of the view that this is relatively limited in the spirits sector. Comparisons between on- and off-trade prices are very difficult, and within the on-trade, are complicated by the bundling of goods and services. In the off-trade, although purchases of spirits are, as the parties suggest, more frequent than of electrical goods for example, the frequency is still insufficient to allow effective comparison. Purchase of spirits is unlikely, for example, to be on, a weekly basis. With items such as electrical goods, by contrast, comparisons are facilitated by the fact that they are in most cases more expensive than spirits, the consumer has more to gain by shopping around, and consumer programmes and magazines provide further help. Duty-free prices of spirits may provide a base-line for comparison, but differences in pack sizes, and in some cases, product strengths, as between duty-free and other sales complicate the matter. Moreover, duty-free purchases will, for most people be even less frequent than non-duty-free ones.
(d) Conclusions on buyer power
(78) The strength of retailers and independent wholesalers obviously varies greatly between countries. The issue therefore needs to be analysed at that level. But on the basis of the foregoing arguments, it is not obvious that, throughout the markets of concern to the Commission, buyer power is likely to be sufficient to prevent the creation or reinforcement of a dominant position as a result of the merger.
V. EFFECTS IN SELECTED NATIONAL/PRODUCT MARKETS
(79) In this section those markets in which the Commission considers that dominant positions will be created or strengthened are examined in detail.
A. GREECE
1. General overview of the market
(80) Greece is the seventh largest consumer of spirits in the Community and in 1995 accounted for about 3 % of total Community sales by volume.
(81) Table 1 shows the relative importance of the different categories of spirits in Greece. An important feature is the large share of consumption accounted for by 'other spirits`, largely due to the sale of ouzo, the national drink. A further feature of the Greek market is the fact that although, in line with Europe as a whole, overall spirits consumption has fallen, the consumption of whiskey has grown. However, operators in this market believed that consumption of vodka, tequila, rum and gin, as well as some innovative spirits, such as fruit schnapps, was growing as well. Whiskey is the most consumed imported spirit, making Greece the second whiskey market in Europe on a per capita basis.
TABLE
2. Relevant product markets
(82) The relevant product markets under consideration in the Greek market are the internationally recognised categories of spirits, that is whiskey, vodka, gin, rum, brandy, the various liqueurs (each of which may constitute a separate niche product market), and the local ouzo aperitif.
(83) Scotch whisky accounts for 95 % of all whiskey consumed in Greece (8). However, on the basis of the market shares of the parties, the assessment of the operation would be similar no matter whether Scotch whisky or all whiskey is used. Therefore, the assessment below is made on the basis of all whiskey.
3. Market profile and position of the parties
(a) Position in the market
(84) The parties operate in Greece through wholly owned distribution subsidiaries. These are United Distillers Greece, a subsidiary of UD (Guinness) and Metaxa S & H & A AEBE, a subsidiary of IDV (GrandMet). The major brands of the parties are: Johnnie Walker Red Label, Dewar's, White Horse, Bell's, Haig, VAT 69 (Guinness) and J& B (GrandMet) in Scotch whisky; Smirnoff (GrandMet) in vodka; Metaxa (GrandMet) in brandy; Gordon's (Guinness) in gin; Ouzo 12 (GrandMet) in ouzo; and Baileys, Malibu and Archer's (GrandMet) in liqueurs and fruit schnapps. In addition, Guinness distributes Bacardi rum and Wyborowa and Finlandia vodkas, whereas GrandMet distributes tequila Cuervo, both on a brand agency basis. Table 2 shows the parties' individual and combined market shares in 1995 by value at brand owner and brand agency distributorship level, for the most important product categories in Greece.
TABLE
(b) Categories and brands of the parties
(85) The parties are present in all the major categories of spirits. Their various categories of spirits, as well as the relevant brands are shown in Table 3 below.
TABLE
(86) It may be seen from Table 3 that the combined entity will cover a broad range of spirits categories, in fact all the major and popular types of spirits. Taken separately, Guinness has currently a strong position in whiskey, gin and rum, whereas GrandMet is strong in brandy, ouzo, tequila and liqueurs. The merger thus fills the gaps in the respective portfolios of each party. The resulting combined portfolio will be by far wider and deeper than that of competitors.
(87) After the proposed operation has been completed, the combined entity will account for above [45-55 %] of the overall trade of spirits ([20-30 %] from Guinness and [10-20 %] from GrandMet), covering all the major categories of spirits marketed in Greece. The next largest competitors, Karoulias/Berry Brothers and Allied Domecq, have shares of [5-15 %] and [5-15 %] respectively.
(88) More specifically, GMG will be the driving force in the whiskey market, with a market share above [45-55 %]. In addition, it will be the largest supplier in categories such as gin with a market share above [75-85 %] (Gordon's), brandy, with a market share above [75-85 %] (Metaxa), and rum with a market share of [75-85 %] (Bacardi). Moreover, GMG will supply other categories, such as tequila (Cuervo), ouzo (Ouzo 12), cream liqueurs (Baileys and Malibu) and fruit schnapps (Archer's).
(c) Aggregation
(89) In so far as it concerns horizontal overlap in the individual categories, the proposed operation will give rise to an aggregation of market shares in the whiskey market. As a result, the combined entity's share in this market would amount to [45-55 %] (that is [40-50 %] from Guinness and [< 10 %) from GrandMet). The parties considered the accretion of [< 10 %] as a de minimis increment of shares in this market. However, the Commission considers this accretion significant, in particular in the light of the pre-existing high market share that one of the parties already had in this market, and of the fact that it is the result of the addition of one single brand, namely J& B, to the existing wide range of brands held by the other party. As can be seen in Table 4 in the top five leading whiskies in Greece in 1995, GMG would occupy positions one, three and five respectively with Johnnie Walker Red Label, Dewar's and J& B [ . . . ].
TABLE
(90) The rest of GMG's product range would be composed of a variety of other brands (Black & White, White Horse, VAT 69), and specialities, such as deluxe whiskies (Johnnie Walker Black Label, J& B Jet, Dimple) or malt whiskies (Lagavulin, Glenkinchie and so forth). By contrast GMG's competitors do not have such a broad range of whiskey brands. Karoulias-Berry Bros. supply Cutty Sark ([15-25 %] market share) and Allied Domecq Ballantine's ([5-15 %] market share), but have no other significant brands that would give them advantages similar to those that GMG will acquire.
(d) Portfolio effects
(91) Although there is no horizontal aggregation in other categories, the merger will bring together existing high market shares in gin, brandy and rum. Guinness' Gordon's gin accounts for over [75-85 %] of the gin market and is complemented by two premium quality brands, that is Tanqueray (Guinness) and Bombay Sapphire (GrandMet). Competing brands in this market include Allied Domecq's Beefeater [< 10 %] and Four Seasons [< 10 %], Amvyx's Nicholson's [< 10 %], and Seagram's Burnetts [< 10 %]. In brandy, Metaxa is the uncontested market leader with a market share of [70-80 %], whereas competitors offer Remy Martin [< 2 %], Martell [< 2 %], Courvoisier [< 2 %] and Hennessy with an insignificant market share. In rum, Bacardi is the leading brand with a [75-85 %] market share, whereas its only potential competitor is Seagram's Captain Morgan [5-15 %]. For the rest of the rum market, an industry report (Canadean) makes reference to 'cheap imitations of Bacardi`. Apart from the leading brands in their respective categories, GMG would also have a number of second-string brands including White Horse, Black & White, Bell's, Haig, VAT 69, Mackenzie, Crawford's, Dimple and Cardhu Scotch whiskies, Finlandia and Wyborowa vodkas, Grand Marnier and Sheridans liqueurs, Tanqueray gin and Karavaki and Kaloyannis ouzo.
(92) Accordingly, and given that market entry and countervailing buyer power are not significant constraints, as explained below, the Commission considers that the parties have existing dominant positions in the markets for gin, rum and brandy.
(93) Overall, GMG will be at least four times as big as the next largest competitors, none of whom account for more than [5-15 %] of the spirits market. It will therefore become the largest spirits importer and distributor in Greece. In 1996, Guinness achieved a turnover of GRD [ . . . ] and GrandMet of GRD [ . . . ], in a total market of GRD 118,2 billion. The next largest competitor, Karoulias-Berry Bros., which distributes the number two Cutty Sark whisky, achieved a turnover of GRD [ . . . ].
(94) The issue of portfolio power is of particular relevance in the assessment of the operation with regard to the Greek market. This is mainly due to the fact that the combined entity will be present across the major categories of spirits, that is whiskey, gin, rum and brandy, where it will be able to supply the leading brands, with the exception of vodka.
(95) To date, the Greek market has been characterised by the presence of various suppliers, none of which was strong across all the categories of spirits. As a result, customers, whether wholesalers or retailers, have obtained their spirits from a variety of suppliers, according to the latter's strength in the various categories. It is precisely in those market conditions that the combination of the most important spirits categories in one single supplier's portfolio is expected to enhance that supplier's market power in individual categories.
(96) As can be seen in Table 5, the portfolio of brands which GMG will bring together will include the top-selling brand in each of the main spirits categories, that is whiskey, gin, rum and brandy, with the exception of vodka. It will also contain the best-selling brands of tequila, ouzo and various liqueurs.
TABLE
(97) As stated above, whiskey is by far the largest category of spirits sold in Greece. However, the fact that GMG will include brands with very significant market shares in smaller categories is also important. For example, even if gin or rum have lower sales than whiskey, the presence of Gordon's and Bacardi is of crucial importance to a particular outlet, as these brands have been driving their respective categories for a long time and are identified with the category to which they belong. According to Canadean 1996 on Greece, 'gin continues to grow, largely due to a strong performance by Gordon's`. The same industry report refers to the rum market as consisting essentially of Bacardi.
(98) It is true that other competitors supply important brands, some of which have achieved high sales volumes. For instance, on the merits of their sales performance, Cutty Sark whisky and Stolichnaya vodka would not face particular problems in access to the trade. However, the potential power of those brands is significantly reduced by the fact that they are spread out among different suppliers. That fragmentation of the market, as contrasted to the combined portfolio of GMG, deprives such brands of their potential portfolio power.
(99) More particularly, a deep portfolio of whiskey brands, spread out across the various quality and price segments, confers considerable price flexibility and marketing opportunities. Therefore, the supplier is shielded from market pressures, as he is able to face price competition from other suppliers' brands by positioning and pricing his various brands within the category. For instance, with its secure high market performance of the best-selling whiskey brands, GMG will be able to devote as many resources as necessary in order to maintain its secondary brands in their position or to reposition the weaker brands upwards by expanding their share at the expense of competing brands, or in order to counter eventual competitive pressure coming from those brands. The parties have argued that such 'pull-through` has not occurred in the past and is accordingly unlikely to occur in the future. However, this argument ignores the substantial increase in the parties' market shares and resources that the merger will create.
(100) Moreover, a wide portfolio of categories confers major marketing advantages, giving GMG the possibility of bundling sales or increasing the sales volume of one category by tying it to the sale of another category. Both Guinness and GrandMet have made use of their portfolios of brands in bundling deals. For instance, in 1995, GrandMet rewarded customers who collected and delivered [ . . . ] bottle-caps of Smirnoff, Cuervo and J& B, by offering them a free [ . . . ]. For the same number of caps, wholesalers received a credit note of [ . . . ]. Moreover, Guinness made joint promotions of different categories and brands, whereby customers purchasing a 12-bottle pack containing Johnnie Walker Red Label (7 bottles), Gordon's gin (2 bottles) and White Horse (3 bottles) obtained a discount of [ . . . ]. It should be noted that these promotional campaigns were run with the cooperation of wholesalers who supplied the various trade channels. Finally, in 1996 GrandMet carried a similar discount campaign for wholesalers, offering discounts for purchases of [ . . . ] cases of a pre-selected mixture of the following GrandMet brands: J& B ([ . . . ]), Smirnoff ([ . . . ]), Cuervo ([ . . . ]), Baileys ([ . . . ]), Grand Marnier ([ . . . ]) and Malibu ([ . . . ]).
(101) In the on-trade, where spirits producers build a brand's strength and image, GMG, through its broad portfolio of brands, would be able to influence what products are stocked or displayed in the limited space available behind the bar, (the so-called back-bar), thus further strengthening its market power. For small outlets which have smaller back-bars, or for Greek night-clubs which concentrate on whiskey, the combined entity would be an attractive solution for one-stop-shopping considerations. In addition, larger modern outlets, which usually stock a much broader variety of brands, may also become a target of the combined entity, should it attempt to gain more back-bar space or use the image of fashionable clubs in order to launch its brands. GMG could afford to make substantial offers, discounts and credits or organise and finance promotional events, that would also accrue to the outlet itself, and use its strength in leading brands, such as Johnnie Walker Red Label, Gordon's gin and Bacardi rum, in order to induce bars to list brands in the same or another category. Given that those premises could not afford not to stock the brands set out above, the negotiating power of GMG would be significantly strengthened. Therefore, it would be much easier for GMG to induce bartenders to adopt GMG brands as pouring brands (that is, the brand offered when a customer fails to specify a brand by name), thus increasing their sales volumes and public awareness.
(102) In the off-trade, the elimination of competition between Guinness and GrandMet for in-store promotions will serve to enable GMG to plan jointly the timing of promotions, negotiate jointly the terms of promotions and coordinate any price changes. Moreover, through its variety of brands, GMG could also alternate branded products promoted over a period of time, thus occupying long promotion periods and excluding competitors from access to the promotion calendar for long periods.
(103) By comparison, competitors have weaker portfolios and fewer strong brands, the most important being Cutty Sark, accounting for [15-25 %] of whiskey sales, and Stolichnaya and Serkova vodkas, accounting for [20-30 %] and [15-25 %] of vodka sales respectively. As stated in the preceding paragraphs, although those brands may have performed well, they lack the support of a strong portfolio of brands. Indeed, in contrast to the complete GMG portfolio, the discontinuity of the competitors' portfolios would deprive them of price flexibility and make them more vulnerable to market pressures. For example, when their brands start losing sales volume, they will have to commit disproportionately stronger resources in order to avoid situations that could in the long run restrict their competitive scope.
4. Other potential competitive constraints
(a) Countervailing buyer power
(104) Such power could come from the trade and in particular the various trade intermediaries that are, in large part, the immediate customers of the spirits suppliers. In Greece, the various trade channels comprise wholesalers supplying on-trade and off-trade outlets, and retailers, including supermarkets, hypermarkets and cash and carry chains. Table 6 illustrates the split among the various trade channels, in terms of percentage of traded spirits.
TABLE
(105) The major wholesalers buy from importers and sell to small retailers and on-trade outlets in various areas of Greece. As a result of its investigation, the Commission concluded that wholesalers would not be able to exercise countervailing power against the combined entity for the reasons that follow.
(106) The parties said that out of a total of 700 wholesalers, 40 accounted for some 40 % of all imported spirits purchases. However, none of those were identified as being of a particularly significant size, whereas the remainder were small. The wholesale channel is therefore very fragmented. It follows that, overall, wholesalers would not be in a position to exercise countervailing power vis-a-vis the combined entity. On the contrary, in view of the incentives that GMG will be able to offer to them, wholesalers would have an obvious interest in staying on good business terms with GMG's marketing policy. That influence over wholesalers is particularly important to GMG, since wholesalers handle almost three quarters of the spirits trade in Greece. Moreover, since wholesalers are responsible for the supply of smaller retailers (29 % of their sales) and on-trade outlets (43 % of their sales), GMG will be able to take advantage of their access to those outlets in order to put into practice some of the marketing and promotional strategies, resulting from its large portfolio of brands, as described in the previous paragraphs on portfolio.
(107) Cash and Carry outlets constitute only a minimal portion of the market, 4 %, and their possible countervailing power is, therefore, not sufficient to reduce GMG's power.
(108) Retailers, such as supermarkets and smaller liquor shops handle 23 % of spirits trade in Greece. Although the big supermarket chains have characteristics enabling them to develop countervailing power, their replies to the questionnaires indicate that they have not done so far. On the contrary, their views suggested that because GMG has the largest number of best-selling brands and the broadest portfolio of spirits among the suppliers, it would be difficult to fulfil their needs, which are driven by consumer demand, without passing through GMG. Referring to the combined entity, a leading buying group in Greece noted that 'the two companies combined represent 56 % of all spirits purchases`. Referring to a number of GMG brands, in particular Johnnie Walker, Dewar's, White Horse, Haig, J& B, Gordon's, Smirnoff, Baileys and Grand Marnier, the buying group stated that those brands 'stand out on their own and impose themselves to the retail trade`. A large retailer, operating more than 30 supermarkets and hypermarkets, noted that 'there are certain brands of these companies which are essential for our stores to stock in view of their increased demand, such as Johnnie Walker, Bacardi, Metaxa, Ouzo 12, Dewar's, Dimple, etc.` The same retailer considered that the merger would have an impact at both consumer and retail level, since the reduction of competition would be prejudicial for the ultimate consumer.
(109) Moreover, the eight own-label whiskey brands which several supermarkets have developed account for a marginal proportion of total whiskey demand (estimated at around 5 %) and, taking into account the fact that in general whiskey consumers are brand-sensitive, own labels are not expected to put substantial competitive pressure on branded products.
(110) The parties provided a number of statements supplied by customers, which implied that the customers concerned did not believe the merger would have adverse impacts on their business. However, only limited reliance can be placed on those statements, in view of the fact that those customers have an important commercial relationship with the parties, which asked them to make the statement.
(111) Moreover, the parties presented a number of examples of on-trade outlets that had refused to stock some of Guinness' brands without payment of a listing fee. However, those examples were isolated cases which could not be considered as representative of the countervailing power of on-trade outlets. Indeed, they only concerned a limited number of on-trade outlets (six) and the delisting period was relatively short (one to three months).
(b) Parallel trade
(112) While the existence of cross-border sales is indicative of alternative supply sources and therefore of residual competition, in the case of Greece parallel trade does not appear to be a significant constraint. First, the volumes involved are not significant (9). Second, parallel trade seems to be motivated by specific circumstances that arise at random when a quantity of spirits becomes available in another Member State (usually Spain), or when variations in exchange rates resulting in cheaper prices favour this business activity. Moreover, the various wholesalers, retailers, buying groups and other respondents to the questionnaires were not aware of the extent of parallel trade, because their companies did not engage in such trade.
(c) Barriers to entry
(113) As stated above, the entry of new products into a highly branded and regulated market is a particularly difficult task in Greece, and as a result of the creation of GMG and for the reasons set out in preceding paragraphs on GMG's portfolio power and foreclosure effects, entry of new products is likely to become more difficult. Due to its negotiating power stemming from its leading brands, GMG could afford to negotiate with wholesalers and retailers lower listing fees and year-end bonuses and as a result, in order to maintain the profitability of the category, retailers could be compelled to impose higher listing fees or higher retail margins on new brands. GMG could also enter into exclusive distribution agreements or impose conditions on various on-trade outlets so as to make the launch and development of new brands both more difficult and more costly.
5. Conclusions on Greece
(114) On the basis of the above, GMG will account for [45-55 %] of the whiskey market. Coupled with its broad portfolio of whiskey brands, ranging across all the various quality and price sub-segments, that will confer on the combined entity considerable marketing advantages.
(115) Moreover, for the reasons set out above, GMG already has dominant positions in gin [80-90 %], brandy [70-80 %] and rum [75-85 %] and a very broad portfolio of brands, including the best-selling brands across all the spirits categories, with the exception of vodka, and will have [35-45 %] of overall spirits consumption in Greece.
(116) Furthermore, existing competitors do not have such a portfolio of brands that they would be able to constrain GMG's market power. In addition, the various trade channels are not able to exercise countervailing buyer power. Finally, barriers to entry are important, preventing thus new entrants from limiting the power of GMG.
(117) Therefore, for all these reasons, the merger will result in the creation of a dominant position in the Greek market for the supply of whiskey.
(118) Finally, through the portfolio effects set out above, the existing dominant positions in gin, rum and brandy will be reinforced.
B. SPAIN
1. General overview
(119) In terms of total spirit sales, Spain is the third biggest consumer in the Community, with 16,5 % of total Community sales by volume (1995).
(120) Table 7 shows the structure of spirits consumption in Spain.
TABLE
(121) Whiskey accounts for the greatest proportion of spirit sales in Spain with about 30 % market share by volume or value, about two thirds of which is accounted for by Scotch, which has been a growing market. Spain is the fourth largest consumer of whiskey in the world, after the United States, the United Kingdom and France.
(122) Brandy/cognac is the second most important spirit, with a share of about 17 %. Gin comes third with 17 % by volume and 10 % by value and has been declining. Vodka, although it accounts for a small part of the market with a share of about 3 %, has been growing over the last years.
2. Relevant product markets
(123) As explained above, the point of departure for product market analysis is the individual spirit type. In Spain, with regard to whiskey, given that the parties are not involved in the supply of Spanish whiskey, the key issue was whether separate markets should be defined for Scotch and Spanish whiskey. The parties claimed that there was no ground to differentiate between Scotch whisky and other types of whiskey, in particular, the locally produced whiskeys, namely DYC and Doble V (both produced by Allied Domecq). However, for the reasons set out in the following paragraphs, the Commission considers that Scotch whisky and Spanish whiskey are two distinct markets.
(124) Spanish whiskey does not comply with the distillation and ageing process requirements imposed on authentic Scotch whisky. Spanish whiskey is produced by combining a proportion (usually 30 %) of authentic Scotch with locally produced grain spirit. Consumers also regard the two products as different due to differences in image (for example certain Spanish brands have particular historical associations dating from the time when international brands were not readily available). Over the period 1985 to 1995, the growth in Scotch was twice that of Spanish whiskey. Furthermore, following the ending of preferential tax treatment for the local brands, their sales declined, whereas Scotch consumption generally has risen.
(125) Evidence provided by the parties on the retail prices per litre of whiskey in Spain in 1996 showed that the two Spanish whiskeys, DYC and Doble V, were at the lower end of the price range, and that only two brands of Scotch ([ . . . ]) were sold more cheaply (a difference of a few pesetas). In their response to the statement of objections the parties said that DYC had been seen in a Spanish supermarket priced considerably above two of the retailer's own-label Scotches, and a few other Scotches which were not listed on the original price series, as well as one (William Lawson) which, according to the price series, was usually considerably more expensive than either DYC or Doble V. However, when account was taken of which of the whiskies in the series were of any significance in Spain from the viewpoint of market share, it appeared that the next significant whisky in the price series ([ . . . ]) was more than [5-15 %] more expensive and the parties' biggest seller, [ . . . ], was about [25-35 %] more expensive again.
(126) The parties also adduced econometric evidence against the existence of a separate Scotch market in Spain. They provided quantitative estimates of own price elasticities to argue that Scotch whisky was not a separate market from Spanish whiskey. This was challenged by other parties. The validity of the results presented can be questioned, since the quantitative analysis suggests that some systematic influence is left out (to show up in significant residual serial correlation of unknown structure), which may contribute to the elasticity estimates. Furthermore, despite the importance of whiskey in the segment expenditure (which was also an explanatory variable), no account was taken when isolating the price elasticity of how segment expenditure varied with incremental changes in Scotch whisky price. There were therefore a number of insecure elements in the quantitative results. In the circumstances the Commission concluded that the evidence concerned could not be said either to confirm or refute the proposition which it was seeking to prove.
(127) In the light of the foregoing, the Commission considers that the relevant markets in Spain for the purposes of this assessment are Scotch and Spanish whiskey.
3. The market position of the parties
(128) Table 8 below shows the parties' shares at brand owner level by main categories of spirits in 1995.
TABLE
(129) Spain accounts for about [15-25 %] of Guinness's sales in the Community and about [10-20 %] of those of GrandMet. Importation and distribution are carried out by local wholly owned subsidiaries, Udie SA for Guinness, and Anglo Española Distribución for GrandMet.
(130) Table 9 shows the parties' market shares in Scotch by brand in volumes terms (1995 data).
TABLE
4. Aggregation
(131) The parties will have a strong position in Scotch. They have [40-50 %] combined market share by value (40-50 %] by volume) with an increment of approximately [10-20 %] by value ([10-20 %] by volume). J& B alone has over [25-35 %].
5. Competitors
(132) Overall, GMG will have more than twice the market share of its nearest competitor Allied Domecq, whose Ballantine's has a [15-25 %] market share. The third-placed competitor is Seagram's Passport, with a [< 10 %] share. Those shares, and in particular the share of Allied Domecq, have to be seen against the fact that the parties have the leading brand which on its own has a share significantly larger than Allied Domecq's total share.
6. Countervailing power of customers
(133) The parties have provided details of their estimates of the breakdown of sales by type of customer for Spain as a whole, and also in terms of their own sales. For Spain as a whole, they estimate that: direct sales to on-trade account for only [5-15 %] of the total; direct sales to off-trade retailers account for some [20-30 %], and that the balance of [60-70 %] is accounted for by sales to wholesalers including cash and carry outlets. It appears that the parties' own split of sales between these channels is [ . . . ].
(134) The parties claim that countervailing power exists because the wholesale and direct retail sectors are concentrated. They provided estimates showing that approximately [40-50 %] of their total sales are made to [ . . . ] large wholesalers/cash and carry customers and about another [15-25 %] to hypermarkets and large supermarket chains. Four hypermarket chains are said to account for approximately [55-65 %] of GrandMet's direct retail sales (equivalent figures were not available for Guinness.)
(135) It is to be noted however, that GrandMet sales through the main hypermarkets represent [5-15 %] of its total sales, suggesting that the countervailing power of those customers is limited. At the wholesale level, the majority of the parties' sales appear to be made to smaller wholesalers, who would not possess countervailing power.
(136) Moreover, it would be harder to exercise any countervailing power where the supplier has important leading brands, because any retailer or wholesaler would be taking substantially increased commercial risks in attempting to trade without being able to offer those products.
(137) In addition, one of the important elements for the exercise of countervailing power, namely a strong presence of own brand, is missing from the Spanish market, where such products account for 5 % of whiskey sales.
7. Barriers to entry
(138) There was no evidence to suggest that barriers to entry in Spain in the relevant markets were substantially different from those to be found in other European countries, and therefore the general comments in the introductory section of this Decision about barriers to entry apply. More specifically, the parties pointed to several whisky brands which had been introduced into the Spanish market since 1994. However, the majority of those brands were owned either by Guinness or by GrandMet, and the rest by existing competitors, rather than by genuine new entrants. All of them were special types of malt or premium whisky, which could be expected to capture only a small proportion of the market and which were mainly an extension of existing product lines rather than genuinely new products.
(139) It was noted that, apart from VAT 69 which has achieved approximately [< 10 %] since its recent reintroduction, in the 10 years to 1995, only two brands, Cutty Sark [< 10 %] and Passport [< 10 %], achieved a material market penetration. Passport is distributed and promoted by Seagram and has therefore benefited from that company's support, whereas Cutty Sark entered the market through independent distributorship. The relative scarcity of successful new entries over the period bears out the view that new entrants would face significant barriers.
8. Conclusions on Spain
(140) For the above reasons, the Commission considers that the concentration will lead to the creation of a dominant position in the market for Scotch whisky in Spain.
C. IRELAND
1. General overview
(141) In terms of spirit sales Ireland is the 12th largest consumer in the Community, accounting for approximately 2 % of sales.
(142) Table 10 below shows the structure of spirits consumption in Ireland in 1995.
TABLE
(143) Irish whiskey, with about one third of sales, is the most important spirit category, followed by vodka with about 20 %. Other important categories include brandy/cognac and gin.
(144) The situation in Ireland differs from other European countries in a number of ways. Irish whiskey accounts for 70 % of total whiskey sales whereas elsewhere Scotch whisky is predominant. All the leading brands of Irish whiskey are produced by Irish Distillers Ltd a subsidiary of Pernod Ricard. The Irish Distiller's Group distributes [85-95 %] of the Irish whiskey sold in Ireland and [45-55 %] of the total spirits.
(145) The distribution system for spirits is unusual, since two of the four major distributors are jointly owned by important international spirits producers, and only one is wholly owned. Normal practice in mature markets would be for all such subsidiaries to be wholly owned.
(146) The on-trade in Ireland is very dispersed with scarcely any chains of outlets. The largest chains of public houses have about 10 outlets. They are largely supplied by wholesalers. The Irish on-trade sector is important, and accounts for about 55 % of total spirits sales.
2. Product market
(147) The Commission considers that the markets for Scotch and Irish whiskeys can be differentiated on the basis of taste and consumption patterns which have been remarkably stable. This view is confirmed by the fact that over [> 95 %] of sales of Irish whiskey are made at prices higher than the price of Scotch whiskies, despite the fact that all Scotch whisky has to be imported. Three brands are listed by the parties in their reply to an Article 11 letter of 11 July 1997 as being cheaper than Scotch whiskies: [ . . . ]. Of those, [ . . . ] is not technically a whiskey but an Irish spirit, since its alcohol content is much lower than the standard required of whiskey. The other two brands are not listed individually in either IWSR or Canadean. Assuming that those brands account for all of the parties' sales of Irish whiskies classified as unidentified in Canadean, the maximum sales of both brands together amount to [ . . . ] cases or about [< 5 %] of 'unidentified` Irish whiskey. They do not therefore significantly affect the definition issue. A recent decision of the Irish Competition Authority (Decision No 285 - Irish Distillers Group/Cooley Distillery of 25 February 1994) also found a separate Irish whiskey market.
(148) In relation to products other than whiskey the conclusion reached in the introductory section of this Decision applies, namely that the relevant product market is no wider than the internationally recognised main spirit types.
3. Market profile
(149) In contrast to most other Member States, where the parties and their major competitors distribute their products through wholly owned subsidiaries, in Ireland many of the leading spirit manufacturers distribute their products through joint ventures with competing suppliers. In this situation it is necessary to consider the distribution level separately. Table 11 shows the main brands and their distributors in Ireland.
TABLE
4. Aggregation
(150) The aggregation arises from the fact that GMG would have substantial influence, albeit not de iure control, over the behaviour of three of the four major spirits distributors in Ireland. Gilbeys of Ireland (which currently distributes GrandMet spirits) would become a 100 % subsidiary of GMG. The merged entity would hold 49,6 % of Cantrell & Cochrane (the remainder of the shares being held by Allied Domecq), which wholly owns the distribution subsidiary Grants of Ireland, responsible for distributing the spirits products of Allied Domecq. Finally, Guinness holds 33 % of the shares of Edward Dillon, which principally distributes Guinness's spirits products.
(151) [The parties have argued that Guinness has no control or influence over Cantrell and Cochrane, and thus over Grants of Ireland and that their share holding is purely financial. They point out that the presence of three directors on the board of Cantrell and Cochrane is to protect Guinness' investment].
(152) However, the views of a shareholder with nearly 50 % of the equity could not realistically be ignored by the other shareholder, if Guinness, and in future GMG, chose to express them. Similarly, it is unlikely that Allied Domecq, though the majority shareholder, would be able to act in a way which Guinness might perceive as contrary to its interests without risking the dissolution of the joint venture. Consequently neither party can be said to be acting independently of the other and thus, as regards this joint venture, they should not be viewed as competitors. Moreover, it is unlikely that Guinness's current interest and that of GMG in the future would be purely financial given that Cantrell & Cochrane not only distributes spirits but is also involved in the wholesaling of alcoholic and non-alcoholic beverages and the production and distribution of cider and soft drinks, as are a number of Guinness subsidiaries.
(153) In relation to Edward Dillon, the parties point to the comfort letter recently issued by the Commission concerning this operation and the limited powers of the company's board. Two factors should be noted in this context, apart from its distribution of Bushmills Irish whiskey, an arrangement dating from the time when Irish Distillers was a shareholder in Edward Dillon, the company distributes (with very minor exceptions) only the spirit brands of its parents. Dillon would be unlikely to take on new products competing with its current range. Furthermore the situation obtaining at the time of the comfort letter will be changed by the implementation of the merger, whereby the Guinness and GrandMet interests in spirits distribution in Ireland would be combined.
TABLE
(154) Edward Dillon and Grants of Ireland are already associated through the significant shareholding Guinness has in each of them. The proposed operation would give rise to aggregations greater than 5 % in Scotch whisky (total [70-80 %]) and in brandy/cognac (total [90-100 %]). In addition, the three undertakings in which GMG would have an interest would also have very strong combined positions in vodka [60-70 %] and rum [85-95 %].
5. Competitors
(155) The Irish Distillers distribution operation is strong in Irish whiskey [85-95 %] and gin [70-80 %] but with the exception of vodka, where its Huzzar brand has a [20-30 %] share, it neither owns nor distributes other products with significant shares in other spirit categories. Therefore, although its parent company is dominant in the production of Irish whiskey and has control of most of the distribution of that product and of gin, it is not well placed to compete in other sectors.
(156) In the categories where distributors controlled or significantly influenced by GMG have very important market shares, Irish Distillers, the only competitor at this level of distribution, has few brands with any strength. In Scotch whisky, its Clan Campbell has only a [< 10 %] share against the [20-30 %] of Teacher's, and the [10-20 %] of Black and White. In cognac/brandy and rum, its Bisquit with [< 10 %] and Kiskadee with [< 5 %] are against Hennessy and Bacardi with [75-85 %] and [80-90 %] respectively. In vodka, its Huzzar brand has [20-30 %] compared with [60-70 %] for Smirnoff, but Huzzar has been losing volume faster than the category in general and much faster than Smirnoff itself.
(157) In Ireland, the multiple grocers have not developed own brands which might restrain the behaviour of powerful manufacturers and distributors in the off-trade. A number of retail chains do have agency brands, that is a proprietary product which they distribute exclusively, but those brands account for less than 5 % of the total off-trade. The recent acquisition by Tesco of retail grocery chains in Ireland is unlikely to have any substantial effect in the short to medium term and will have only a limited effect in the long term. This is because Tesco is maintaining the Irish identity of those stores, so that it cannot simply transfer its UK own brands to Ireland. Even if it were to do so, the Tesco brand is not established in Ireland and would, at least initially, carry little weight.
(158) The on-trade is more important in Ireland, accounting for about 55 % of spirits consumption, but the industry is very fragmented and is served by wholesalers. The countervailing power of those wholesalers would constrain the behaviour of strong distributors. However both Guinness and Cantrell & Cochrane have wholesaling operations including spirits which could be used either to marginalise other wholesalers or to bring pressure to bear on them, thereby reducing their effectiveness as a constraint.
(159) It seems, therefore, that there would not be sufficient constraining power from Irish Distillers in either the on-trade or the off-trade to counteract the strength of the distributors who would be controlled or significantly influenced by GMG in the Scotch whisky, and brandy/cognac markets.
6. Barriers to entry
(160) Ireland is not a densely populated country and has a large dispersed rural population. New entrants to the Irish market, who would almost certainly have a limited range of products, would not be able to establish their own distribution networks and would have to rely on using an existing distributor to provide a route to market for their product. As a result of the proposed operation, the number of major distribution channels will be reduced to two, one under the influence of GMG, the other under Irish Distillers.
7. Conclusions
(161) The proposed operation would have the effect of reducing to two the number of important independent spirits distributors in Ireland and would strengthen, through its impact at the distribution level, the parties' existing dominant positions in Scotch whisky and brandy/cognac.
D. BELGIUM/LUXEMBOURG
1. Product market definition
(a) All whiskey or Scotch
(162) On the basis of the market shares of the parties, the assessment of the operation would be similar irrespective of whether Scotch whisky or all whiskey is used. Therefore, the assessment below is made on the basis of all whiskey.
(b) Gin
(163) The question arose as to whether the definition of gin should include or exclude genever. The parties argued that genever should be included, pointing out that the Distillers case (10) had used a definition of 'juniper-based spirits`, relying on the classification of the market in Council Regulation (EEC) No 2658/87 (11). They also pointed to their own market research purporting to show that [30-40 %] of gin drinkers also drink genever and that [20-30 %] of genever drinkers also drink gin. They also referred to the ease of supply-side substitutability between genever and gin, and to the fact that gin and genever were normally positioned adjacent to one another on supermarket shelves.
(164) The fact that there is a 'juniper-based spirit` definition in Regulation (EEC) No 2658/87, or that it was used in an earlier case, does not imply that it is the appropriate definition to use in the present case. In relation to the market research, the fact that consumers will drink more than one type of spirit is not evidence that the spirits concerned are substitutes for one another, nor does adjacent positioning on supermarket shelves of itself say anything about whether the spirits concerned are in the same product market. Moreover, genever is not normally drunk with a mixer, and is often drunk as an accompaniment to beer or to coffee. In this respect it is totally different from the 'London` gins supplied by the parties.
(165) In addition, the Commission examined retail price data for gin and genever provided by the parties, and in particular it compared prices for leading brands of the two products. Its analysis showed that, over a recent two and a half year period, genever prices remained substantially below those of the gins (a difference of at least BEF [ . . . ] or approximately [5-15 %] of the bottle price). That supports the view that genever is not in the same product market as gin in Belgium/Luxembourg. Accordingly the relevant product market in Belgium/Luxembourg is considered to be the market for gin, excluding genever.
(c) Vodka
(166) There was no evidence to suggest that the appropriate product market was any narrower than the internationally recognised category for vodka. Accordingly the Commission considers the product market to be vodka.
2. General overview
(167) Belgium/Luxembourg accounted for about 2 % of total spirits sales by volume in the Community in 1995. Table 13 shows the structure of the market.
TABLE
(168) It will be noted that, in terms of its proportion of overall spirits sales, whiskey is the most important single spirit category and that some 90 % of whiskey sales are accounted for by Scotch, Gin and brandy are also important, but vodka and rum less so.
3. Position of the parties
(169) Both parties have wholly-owned subsidiaries operating in Belgium/Luxembourg for the distribution of their products there.
(170) Table 14 shows the parties' individual and combined market shares for all spirits and for certain spirit categories in Belgium/Luxembourg.
TABLE
4. Assessment
(a) Market shares following the merger
(171) As shown by Table 14 above, market shares of [40-50 %] would arise in an all-whiskey market, with an increment of [10-20 %]. The principal Guinness (UD) brands are Johnnie Walker Red Label ([10-20 %] share of all whiskey sales by volume at distribution level in 1995), Ainslies ([< 10 %]), Haig ([< 10 %]), and Black & White ([< 5 %]) as well as Cardhu, Dimple, 'Classic` and VAT 69. GrandMet's main brand is J& B ([5-15 %]). In an all-whiskey category, the next largest competitor has a market share of about [5-15 %]; GMG would therefore be at least five times as big as any competitor.
(172) In gin, according to the Canadean Report, 1996, Gordon's (Guinness) is the leading brand with a [35-45 %] market share, followed by Gilbey's (GrandMet) with [10-20 %] market share. By adding Tanqueray ([< 2 %]) and Bombay Sapphire ([< 2 %]), GMG would have a [50-60 %] combined market share in gin. The next largest competitor would be Booths ([< 5 %]) and the rest of the competitors would have minor shares well below [< 5 %], (Silver Top: [< 5 %]; Bosford [< 5 %]; Beefeater [< 2 %]; and Burnetts White Satin: [< 2 %]).
(173) In vodka, the post-merger combined market share would be over [55-65 %] with a significant increment arising from Guinness' distribution of third-party brands (Wyborowa and Zubrowka) added to the [40-50 %] market share of GrandMet's Smirnoff. The Commission recognises that if the distribution arrangements for Wyborowa and Zubrowka were to end, as the parties have suggested might happen, there would be no aggregation of market share arising from the operation. However, in the absence of any undertaking from the parties to end the agencies, the Commission must assume that current arrangements will continue. No other competitor has more than a [< 10 %] market share.
(174) The parties have argued that, notwithstanding those market shares, there is no case for finding dominance in any of the markets. Their three general arguments are that there is substantial buyer power, effective competition from own-label products, and substantial parallel trade. They observe that their margins on key products have fallen substantially in recent years.
(b) Whiskey
(175) The parties contended that powerful purchasers such as supermarkets were able to exert significant pressure on spirits suppliers. They contended that there was a high level of concentration in terms of their own sales. Figures provided by them showed that the top five customers of both Guinness and GrandMet accounted for over [35-45 %] of their total sales. The parties pointed out that, according to an IWSR report, over [45-55 %] of whiskey sales in Belgium were accounted for by large supermarkets.
(176) In terms of buyer power in branded products, the Commission doubts whether the power of large buyers such as supermarkets is likely to be sufficient to constrain the parties following the merger. In whisky, not only will the parties be the largest supplier with [40-50 %] combined market shares, compared with the nearest competitor's share of below [10-15 %], but the merger would also bring together the two leading brands, with a combined share from those two brands alone of [20-30 %]. With brands and shares of that importance relative to those of competing suppliers, supermarkets would be taking substantially increased commercial risks in attempting to trade without being able to offer those products.
(177) The parties also contended that own brands were a significant constraint in the direct retail sector, pointing out that own brands (including private label) accounted for some [25-35 %] to [45-55 %] of whiskey sales in key Belgian retail chains. In value terms the share of own label should be smaller, because it is generally cheaper than the branded product. The parties' figures also overstate the importance of own label in terms of its contribution to spirits sales in Belgium/Luxembourg. Canadean data suggests that own label might account for about [30-40 %] of all whiskey sales in Belgium.
(178) In the Commission's view, the fact that certain retailers have their own labels will not have more than a limited effect in constraining the prices for the parties' brands, in view of the market shares they possess. Although the possession of a range of own brands may strengthen the retailers' hands in negotiations it will not sufficiently offset the power which the parties know they possess through their control of the supply of leading brands.
(179) Own brands (including private label brands) are also handicapped in a number of ways. They are restricted to the outlets of the retailer or supplier in question and their scope for expansion is thus limited. The retailer cannot hope to replace altogether branded spirits by his own brands. Any attempt to do so would alienate those of his customers who want to buy specific brands, leading to the loss not merely of sales of the brands in question but possibly also of other products which might have been bought on the same occasion.
(c) Gin
(180) The parties make similar arguments in respect of gin. The parties observe that own label accounts for about [25-35 %] of sales in one leading Belgian retailer, suggesting similar shares in other comparable outlets. However the same basic arguments apply as for whiskey. The combined strength of own-brand gins appears to be significantly less than that of the parties' two brands. In addition the arguments set out above concerning the restrictions on the expansion and constraining ability of own brands of whiskey apply equally to gin.
(d) Vodka
(181) The parties estimate that the shares of own-label sales of vodka are in the order of [35-45 %] for two leading Belgian supermarket chains. Once again, however, that total is less than the share of Smirnoff. In addition, the arguments set out above concerning the restrictions on the expansion and constraining ability of own brands of whiskey apply equally to vodka.
5. Conclusions on Belgium/Luxembourg
(182) In the light of the above, the Commission considers that the merger will create dominance in the markets for whiskey, gin and vodka.
VI. UNDERTAKINGS SUBMITTED BY THE PARTIES
(183) In order to achieve clearance of the proposed concentration, the notifying parties proposed the following undertakings to be completed within the divestment period of 15 months or such extended period as may be approved by the Commission:
'(i) Parties will divest, within a period of 15 months from the date of the Decision or within such extended period as may be approved by the Commission (together "the divestment period") the rights in all EU/EEA/EFTA Member States, Poland, Hungary, the Czech Republic, Slovakia, Slovenia, Croatia, Bosnia, Serbia, and Macedonia ("the territory") to the Dewar's and "Ainslie's" Scotch whisky brands ("the brands") together with such confidential information, and related copyright and know-how specific to those brands as is necessary for their satisfactory production. In addition, the parties will undertake, in so far as whisky indispensable to the blending of the Brands can only be sourced from distilleries under their ownership, to continue to supply such whisky to the purchaser, if requested, on reasonable arms' length commercial terms. In the event of any dispute concerning the supply of such whisky, the parties shall refer the matter to be resolved by arbitration under the Rules of the London Court of International Arbitration applying the law of England and Wales.
(ii) Parties will bring to an end by 31 December 1998 at the latest the brand agency distribution arrangements for Belgium/Luxembourg for "Wyborowa" vodka currently held by Guinness.
(iii) Parties will within the divestment period:
either:
(a) [ . . . ].
or
(b) [ . . . ]
[Dispose of certain interests in Ireland in order to ensure continued competition in the distribution of spirits after the formation of GMG brands which otherwise would have effectively reduced the number of distributors in Ireland from four to two.]
(iv) The parties will, within the divestment period, entrust, for a period not less than nine years, the distribution of Gilbey's gin in Belgium to an independent third-party distributor on reasonable arms' length commercial terms. If such a distributor shall not be appointed within the divestment period, the parties will appoint an independent trustee (who shall be the same as that appointed in relation to the brands and the shareholding) who shall be mandated to appoint such a distributor on the best available terms and conditions and in any event by 30 June 1999.
(v) Parties will, within the divestment period, discontinue the brand agency distribution arrangement for Bacardi rum in Greece currently held by Guinness.
Mechanisms for divestment
(vi) The parties will immediately following the date of the Decision, and in any event, not later than four weeks, propose to the Commission for its approval the names of two institutions whom they consider appropriate to be appointed as trustees to act on GMG Brands' behalf, following its formation, in overseeing the divestment of the brands and [ . . . ]. The Commission shall not, without good cause, withhold its approval of any trustee proposed by the parties.
(vii) The parties will, as soon as possible after receiving the Commission's approval of the proposed trustee, appoint such trustee ("the trustee") to act from the date of formation of GMG Brands on its behalf in overseeing the divestment of the brands and [ . . . ] shareholding for full and fair market value during the divestment period. Such appointment shall be made, subject as more fully described below, on an irrevocable basis save only in the circumstances that Grand Metropolitan and/or Guinness should announce that the proposed merger has been abandoned in which case such appointment shall be deemed automatically revoked.
(viii) Pending divestment of the brands, the parties shall act, and shall instruct the trustee to act, so as to ensure the continued viability and market value of the brands and their rapid and effective divestiture from the rest of GMG Brands' activities, as more fully described below.
(ix) The parties undertake that they will give the trustee a mandate to find on behalf of GMG Brands a satisfactory purchaser or purchasers for the brands and [ . . . ] (subject to (xi)(b) below), it being understood that such purchaser or purchasers shall be a viable existing or prospective competitor independent of, and unconnected to Guinness or Grand Metropolitan and possessing the financial resources and proven expertise enabling it to maintain and develop the divested brands and/or shareholding as an active competitive force in competition to the parties' spirits business on the various markets concerned ("the purchaser standards").
(x) [ . . . ]. Should any of the divestitures not be effected within the divestment period, such divestitures must in any event be the subject of a binding agreement to sell by the end date agreed with the Commission.
(xi) The parties shall ensure that the mandate of the Trustee includes the following rights and obligations:
(a) to provide to the Commission written reports (with a copy to GMG Brands) on a monthly basis, (or, at the option of the Commission at such other reasonable time in the event of significant developments in the divestment process), concerning relevant developments in its negotiations with third parties interested in purchasing the brands [ . . . ], including the time-frame within which an agreement with interested third parties would be implemented, and, in particular, sufficient information to enable the Commission to assess whether each bidder satisfies the purchaser standards;
(b) to continue negotiations with an interested third party only if the Commission does not, within two weeks of receipt of the Trustee's report, formally indicate that it does not approve of the third party specifying its reasons;
(c) to receive remuneration from GMG Brands on a basis which will provide incentives for a prompt divestiture.
(xii) The parties undertake that GMG Brands shall provide the trustee with all reasonable assistance required in carrying out the mandate.
(xiii) If there is more than one prospective purchaser unopposed by the Commission for all or any of the brands [ . . . ], GMG Brands shall be free to select the offer of its choice.`
VII. ASSESSMENT OF THE UNDERTAKINGS
A. WHISKEY
(184) The parties have offered to divest two brands at European level. Dewar's is an important international brand and the parties' third most important one in worldwide sales terms, after Johnnie Walker and J& B. Ainslie's currently sells only in Belgium/Luxembourg but is the third most important brand in that territory.
(185) The effect of divestiture on the various whiskey markets in which the Commission has identified problems is shown in Table 15.
TABLE
(186) Together the sales of these brands in the Community in 1995 were [ . . . ] million nine-litre cases, or about [< 5 %] of Community consumption by volume. For comparison, sales of Famous Grouse, the leading Scotch whisky not sold by a major spirits producer, were [ . . . ] million cases in 1995.
B. VODKA
(187) The termination of the Wyborowa agency in Belgium/Luxembourg will reduce the parties' market share from [60-70 %] to [45-55 %], the remaining market share being accounted for in its entirety by GrandMet's Smirnoff, and remove the overlap created by the merger.
C. GIN
(188) The appointment of an independent third-party distributor for gin in Belgium/Luxembourg would reduce the parties' market share for gin from [50-60 %] to [35-45 %].
D. RUM
(189) Bacardi accounts for [75-85 %] of rum sales in Greece. The termination of the Bacardi agency agreement in Greece would, together with the divestment in whisky, reduce significantly the number of product categories in which the parties would have significant shares. Although GMG will continue to hold high market shares in some categories, notably brandy, its ability to exercise portfolio power will be satisfactorily restrained, since whiskey and rum are respectively the first and third largest spirit categories in Greece.
E. IRELAND
(190) The parties propose the two following alternatives. Either:
(a) [ . . . ].
(b) [ . . . ].
[Which will involve the disposal of certain interests in Ireland so as to ensure continued competition in the distribution of spirits.]
(191) Either of these options would satisfactorily address the competition issues identified in the Commission's analysis of the Irish market by substantially reducing the parties' influence over the distribution of their own products and those of others in that territory. [ . . . ]. [Either alternative will ensure that the influence of GMG over the distribution of spirits in Ireland is significantly reduced.]
F. TERMS AND CONDITIONS
(192) The terms and conditions for the various divestitures, which are consistent with the practice in previous such cases, are considered adequate.
VIII. CONCLUSION
(193) In the light of the foregoing, the Commission has concluded that the concentration notified by Guinness plc and Grand Metropolitan plc on 16 May 1997, relating to the merger of all their business activities, should be declared compatible with the common market and with the functioning of the EEA Agreement, subject to the condition of full compliance with the commitments made by the parties in their undertaking to the Commission as set out in section VI above,
HAS ADOPTED THIS DECISION:
Article 1
The concentration notified by Guinness plc and Grand Metropolitan plc, relating to the merger of all their business activities, is declared compatible with the common market and with the functioning of the EEA Agreement, subject to the condition of full compliance with the commitments made by the parties in their undertaking to the Commission as set out in section VI of this Decision.
Article 2
This Decision is addressed to:
Guinness plc
39 Portman Square
London W1H 0EE
United Kingdom
and
Grand Metropolitan plc
8 Henrietta Place
London W1M 9AG
United Kingdom.
Done at Brussels, 15 October 1997. | [
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COMMISSION DECISION of 16 June 1993 deferring, as regards the import of vegetable propagating and planting material, other than seed, from third countries, the date referred to in Article 16 (2) of Directive 92/33/EEC
(93/400/EEC)THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 92/33/EEC of 28 April 1992 on the marketing of vegetable propagating and planting material, other than seed (1), and in particular Article 16 (2) thereof,
Whereas the schedule referred to in Article 4 of the said Directive has not yet been established; whereas, as a consequence, there were no Community conditions in force on 1 January 1993;
Whereas the normal trade pattern of Member States should not be interrupted and they should be allowed to continue to import propagating and planting material and ornamental plants produced in third countries;
Whereas the deferring of the date shall be made on a country-by-country basis, taking into account the programme for assessing the conditions prevalent in the respective third countries;
Whereas it has been impossible to set up such programme, in the absence of Community conditions; whereas for the time limit being the date of 1 January 1993 must be deferred for third countries in general;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Seeds and Propagating Material for Agriculture, Horticulture and Forestry, as provided for in Article 21 of the said Directive,
HAS ADOPTED THIS DECISION:
Article 1
The date referred to in Article 16 (2), first subparagraph of Directive 92/33/EEC is hereby deferred until 31 December 1993.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 16 June 1993. | [
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*****
COMMISSION DECISION
of 6 January 1984
amending Decision 83/423/EEC as regards the list of establishments in Paraguay approved for the purpose of importing fresh meat into the Community
(84/30/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries (1), as last amended by Directive 83/91/EEC (2), and in particular Articles 4 (1) and 18 (1) (a) and (b) thereof,
Whereas a list of establishments in Paraguay, approved for the purposes of the importation of fresh meat into the Community, was drawn up initially by Commission Decision 83/423/EEC (3);
Whereas a routine inspection under Article 5 of Directive 72/462/EEC and Article 3 (1) of Commission Decision 83/196/EEC of 8 April 1983 concerning on-the-spot inspections to be carried out in respect of the importation of bovine animals and swine and fresh meat from non-member countries (4) has revealed that the level of hygiene of one establishment has altered since the last inspection;
Whereas the list of establishments should, therefore, be amended;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
The Annex to Decision 83/423/EEC is hereby replaced by the Annex to this Decision.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 6 January 1984. | [
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COUNCIL DECISION
of 16 November 2009
on a Community Position concerning participation in the CARIFORUM-EC Consultative Committee provided for by the Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part, and on the selection of the representatives of organisations located in the EC Party
(2010/207/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular the second subparagraph of Article 300(2) thereof,
Having regard to the proposal from the Commission,
Having consulted the European Economic and Social Committee,
Whereas:
(1)
The Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part (1) (hereinafter ‘the Agreement’), was signed on 15 October 2008, and has applied provisionally since 29 December 2008.
(2)
Article 232(2) of the Agreement provides for the Joint CARIFORUM-EC Council (hereinafter ‘the Joint Council’) to decide on the participation in the CARIFORUM-EC Consultative Committee (hereinafter ‘the Committee’), with a view to ensuring a broad representation of all interested parties.
(3)
It is crucial to ensure the rapid set up of the institutions provided for by the Agreement, and in particular the Committee, in the light of its role in monitoring the implementation of the Agreement.
(4)
An internal Community procedure should be established for the selection of representatives of organisations located in the EC Party.
(5)
The European Economic and Social Committee has expressed its willingness to assist in identifying and selecting European civil society organisations representatives, and to initially hold the Committee secretariat,
HAS DECIDED AS FOLLOWS:
Article 1
The position of the Community in view of the adoption of a Decision of the Joint Council leading to the selection of standing members of the Committee provided for by the Agreement shall be based on the draft decision of the Joint Council annexed to this Decision.
Article 2
1. Representatives of the European organisations defined in Article 1.1(a) of the Annex shall be proposed by the European Economic and Social Committee in consultation and agreement with the Commission for approval by the CARIFORUM-EC Trade and Development Committee (hereinafter ‘the Trade and Development Committee’). The proposed representatives shall be three representatives of trade union organisations, three representatives of employers’ organisations, three representatives of organisations representing various social and economic interests, including farmers’ and consumers’ associations, and shall fulfil the requirements set out in Article.1 of the Annex.
2. There shall be four representatives of the European organisations defined in Article 1.1(c) of the Annex and two representatives of the European organisations defined in Article 1.1(b) of the Annex. The European Economic and Social Committee shall be asked to establish rosters of the organisations defined in Articles 1.1(b) and 1.1(c) of the Annex. This shall be effected by widely publicising a call for expression of interest to be included in such roster. In replying to such call, any interested organisation shall describe how it fulfils the requirements set out in Article 1 of the Annex. The rosters shall remain open for any organisation fulfilling the requirements of that provision to be included. The Commission shall verify that organisations seeking inclusion in the roster fulfil the requirements set out in Article 1 of the Annex. Where the Commission considers that an organisation having applied for inclusion in the roster does not fulfil such requirements, it shall inform the applicant organisation within two months of the date of application.
3. Organisations included in the rosters shall be kept informed of, and shall be able to participate as observers at their own cost in, the working of the Committee.
4. In the call for expression of interest, organisations shall also be invited to express an interest in one of their representatives to serve as a standing member of the Committee. The organisations included in the rosters shall be subsequently called to endorse the candidature of up to two standing representatives for the Committee, among those having expressed such interest and fulfilling the requirements set out in Article 1 of the Annex. The EC Party shall propose to the Trade and Development Committee as standing members for categories 1.1(b) and 1.1(c) those representatives having received more endorsements as long as the requirements of Article 1 of the Annex are respected.
5. A call for expression of interest to serve as standing members of the Committee shall be launched four months before the expiry of the mandate of the members serving in the Committee. The designation shall follow the same procedures set out in paragraph 4.
Done at Brussels, 16 November 2009. | [
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COUNCIL REGULATION (EEC) No 768/88 of 2 February 1988 amending Regulation (EEC) No 4136/86 on common rules for imports of certain textile products originating in third countries
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 Council Regulation (EEC) No 4136/86 (1) made imports of certain textile products originating in third countries subject to common rules;
Whereas the agreements concerning trade in textile products negotiated by the Community with a number of supplier countries provide that, as soon as the International Convention on the Harmonized Commodity Description and Coding System enters into force, textile products are to be classified according to the said system and to the Community nomenclatures bases thereon;
Whereas Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (2) introduced on 1 January 1988 a goods nomenclature, known as the ´combined nomenclature' (CN), which satisfies in particular the needs of the statistics of external trade of the Community; whereas the textile products covered by the Agreements shosuld therefore be classified according to the combined nomenclature; whereas provision should be made for the importation and entry for free circulation in the Community from 1 January 1988 of certain textile products consigned in supplier countries before that date, the classification of which will be altered by the entry into force of the combined nomenclature;
Whereas the quantitative limits should be allocated among the Member States for the period 1988 to 1991;
Whereas Regulation (EEC) No 4136/86 should therefore be amended accordingly, and for reasons of clarity and administrative efficiency, the quantitative limits established in accordance with Article 11 of the said Regulation should be included in an Annex IV bis,
HAS ADOPTED THIS REGULATION:
Article 1 Regulation (EEC) No 4136/86 is hereby amended as follows:
1. Article 1 (2) shall be replaced by the following:
´2. The classification of products listed in Annex I shall be based on the combined nomenclature (CN), without prejudice to Article 3 (7).' The procedures for the application of this paragraph are laid down in Annex VI.
2. The following subparagraph shall be added to Article 3 (2):
´The allocation of these quantitative limits among the Member States for the years 1988 to 1991 is set out in Annexe IV bis.' 3. Article 3 (7) shall be replaced by the following:
´7. The definition of quantitative limits laid down in Annex III and the categories of products, to which they apply shall be adapted in accordance with the procedure laid down in Article 15 where this proves necessary to ensure that any subsequent amendment to the combined nomenclature (CN) or any decision amending the classification of such products does not result in a reduction of such quantitative limits.' 4. The following two paragraphs shall be added to Article 3;
´8. The quantitative limits laid down in this Article shall not apply to products which were not subject to quantitative import limits before 1 January 1988 and which, as a result of the entry into force of the combined nomenclature (CN), will from that date be classified in one or more of the categories of products referred to in Annex III. This provision shall apply only to products consigned by the supplier country from which they are originating to the Community before 1 January 1988.
9. Entry for free circulation of products falling within one or more categories of products, the importation of which was subject to a quantitative limit before 1 January 1988, shall continue under the same import conditions as before that date even if, as a result of the entry intro force of the combined nomenclature (CN), those products are classified in a different category.
This provision shall apply only to products consigned by the supplier country from which they are originating to the Community before 1 January 1988.' 5. Article 12 (2) shall be replaced by the following:
´2. In respect of the products listed in Annex I, Member States shall notify the Commission monthly, within 30 days of the end of each month, of the total quantities imported during that month, indicating the combined nomenclature code and using the units and, where appropriate, the supplementary units, used in that code. Imports shall be broken down according to the statistical procedures in force.' 6. Annex I shall be replaced by that appearing in Annex I to this Regulation.
7. Annex IV bis appearing in Annex II to this Regulation shall he added.
8. Annex VI shall be replaced by that appearing in Annex III to this Regulation.
9. Paragraph 6 of Annex VIIa shall be replaced by the following:
´6. Articles 7 and 8 of the Regulation shall apply to the quantities listed in the attached tables B and C with the exception of transfer between these quantitative limits and those provided for in Annex IV.' 10. Table C of Annex IV of this Regulation shall be added to Annex VIIa.
11. For the years 1988 to 1991, the combined nomenclature codes contained in column 2 of the new Annex I shall replace the Common Customs Tariff numbers and NIMEXE codes contained in columns (2) and (3) of Annex III.
Article 2 This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Communities.
It shall apply with effect from 1 January 1988.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 February 1988. | [
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COMMISSION REGULATION (EC) No 23/2008
of 11 January 2008
amending Commission Regulation (EC) No 622/2003 laying down measures for the implementation of the common basic standards on aviation security
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 2320/2002 of the European Parliament and the Council of 16 December 2002 establishing common rules in the field of civil aviation security (1) and in particular Article 4(2) thereof,
Whereas:
(1)
The Commission is required, by virtue of Regulation (EC) No 2320/2002, to adopt measures for the implementation of common basic standards for aviation security throughout the Community. Commission Regulation (EC) No 622/2003 of 4 April 2003 laying down measures for the implementation of the common basic standards on aviation security (2) was the first act laying down such measures.
(2)
There is a need for measures to make the common basic standards more precise. As regards Threat Image Projection (TIP) performance requirements should be laid down. It should be considered to review these requirements on a regular basis and at least every 2 years to ensure that they continue to reflect technical developments, in particular as regards the size of the library of virtual images available.
(3)
TIP should be used to enhance the performance of screeners, examining both cabin bags and hold bags, by means of projecting virtual images of threat articles into an x-ray image of a bag. There should be a minimum and maximum percentage of virtual images of threat articles to be projected into the images of bags. By screeners responding to images of bags, TIP should inform them if they have responded correctly in identifying the virtual image of the threat article. Furthermore, the library of virtual images used for TIP should be enlarged and refreshed on a regular basis, in order to take into account new threat articles and to avoid familiarity with the virtual images.
(4)
Information about the performance requirements of security equipment, including TIP, at airports should not be placed in the public domain as it could potentially be misused to circumvent security controls. The information should only be made available to regulators and equipment manufacturers.
(5)
Regulation (EC) No 622/2003 should be amended accordingly.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Committee on Civil Aviation Security,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EC) No 622/2003 is amended as set out in the Annex to this Regulation.
Article 3 of that Regulation shall apply as regards the confidential nature of this Annex.
Article 2
This Regulation shall enter into force on 1 February 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 January 2008. | [
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COUNCIL DIRECTIVE 93/32/EEC of 14 June 1993 on passenger hand-holds on two-wheel motor vehicles
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 100a thereof,
Having regard to Council Directive 92/61/EEC of 30 June 1992 relating to the type-approval of two- or three-wheel motor vehicles (1),
Having regard to the proposal from the Commission (2),
In cooperation with the European Parliament (3)
Having regard to the opinion of the Economic and Social Committee (4),
Whereas the internal market comprises and area without internal frontiers in which the free movement of goods, persons, services and capital is ensured; whereas the measures required for that purpose need to be adopted;
Whereas, with regard to their passenger hand-holds, in each Member State two-wheel motor vehicles must display certain technical characteristics laid down by mandatory provisions which differ from one Member State to another; whereas, as a result of their differences, such provisions constitute a barrier to trade within the Community;
Whereas these obstacles to the operation of the internal market may be removed if the same requirements are adopted by all Member States in place of their national rules;
Whereas it is necessary to draw up harmonized requirements concerning passenger hand-holds on two-wheel motor vehicles in order to enable the type-approval and component type-approval procedures laid down in Directive 92/61/EEC to be applied for each type of such vehicle;
Whereas, given the scale and impact of the action proposed in the sector in question, the Community measures covered by this Directive are necessary, indeed essential, to achieve the aim in view, which is to establish Community vehicle type-approval; whereas that aim cannot be adequately achieved by the Member States individually,
HAS ADOPTED THIS DIRECTIVE:
Article 1
This Directive and its Annex apply to passenger hand-holds of all types of two-wheel vehicles as defined in Article 1 of Council Directive 92/61/EEC.
Article 2
The procedure for the granting of component type-approval in respect of passenger hand-holds on a type of two-wheel motor vehicle and the conditions governing the free movement of said vehicles shall be as laid down in Chapters II and III of Directive 92/61/EEC.
Article 3
Any amendments necessary to adapt the requirements of the Annexes to technical progress shall be adopted in accordance with the procedure laid down in Article 13 of Directive 70/156/EEC (5).
Article 4
1. Member States shall adopt and publish the provisions necessary to comply with this Directive not later than 14 December 1993. They shall forthwith inform the Commission thereof.
When the Member States adopt these provisions, 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 the Member States.
From the date mentioned in the first subparagraph Member States may not, for reasons connected with the passenger hand-holds, prohibit the initial entry into service of vehicles which conform to this Directive.
They shall apply the provisions referred to in the first subparagraph as from 14 June 1995.
2. Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.
Artikel 5
This Directive is addressed to the Member States.
Done at Luxembourg, 14 June 1993. | [
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Commission Regulation (EC) No 1717/2003
of 29 September 2003
determining the extent to which applications lodged in September 2003 for import licences for certain pigmeat products under the regime provided for by the Agreements concluded by the Community with the Republic of Poland, the Republic of Hungary, the Czech Republic, Slovakia, Bulgaria and Romania can be accepted
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 1898/97 of 29 September 1997 laying down detailed rules for the application in the pigmeat sector of the arrangements provided for by the Agreements concluded by the Community with Bulgaria, the Czech Republic, Slovakia, Romania, the Republic of Poland and the Republic of Hungary(1), as last amended by Regulation (EC) No 1467/2003(2), and in particular Article 4(5) thereof,
Whereas:
(1) The applications for import licences lodged for the fourth quarter of 2003 are for quantities less than or equal to the quantities available and can therefore be met in full.
(2) The surplus to be added to the quantity available for the following period should be determined.
(3) It is appropriate to draw the attention of operators to the fact that licences may only be used for products which comply with all veterinary rules currently in force in the Community,
HAS ADOPTED THIS REGULATION:
Article 1
1. Applications for import licences for the period 1 October to 31 December 2003 submitted pursuant to Regulation (EC) No 1898/97 shall be met as referred to in Annex I.
2. For the period 1 January to 31 March 2004, applications may be lodged pursuant to Regulation (EC) No 1898/97 for import licences for a total quantity as referred to in Annex II.
3. Licences may only be used for products which comply with all veterinary rules currently in force in the Community.
Article 2
This Regulation shall enter into force on 1 October 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 September 2003. | [
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Commission Regulation (EC) No 626/2002
of 11 April 2002
fixing the export refunds on milk and milk products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), as last amended by Commission Regulation (EC) No 509/2002(2), and in particular Article 31(3) thereof,
Whereas:
(1) Article 31 of Regulation (EC) No 1255/1999 provides that the difference between prices in international trade for the products listed in Article 1 of that Regulation and prices for those products within the Community may be covered by an export refund within the limits resulting from agreements concluded in accordance with Article 300 of the Treaty.
(2) Regulation (EC) No 1255/1999 provides that when the refunds on the products listed in Article 1 of the abovementioned Regulation, exported in the natural state, are being fixed, account must be taken of:
- the existing situation and the future trend with regard to prices and availabilities of milk and milk products on the Community market and prices for milk and milk products in international trade,
- marketing costs and the most favourable transport charges from Community markets to ports or other points of export in the Community, as well as costs incurred in placing the goods on the market of the country of destination,
- the aims of the common organisation of the market in milk and milk products which are to ensure equilibrium and the natural development of prices and trade on this market,
- the limits resulting from agreements concluded in accordance with Article 300 of the Treaty, and
- the need to avoid disturbances on the Community market, and
- the economic aspect of the proposed exports.
(3) Article 31(5) of Regulation (EC) No 1255/1999 provides that when prices within the Community are being determined account should be taken of the ruling prices which are most favourable for exportation, and that when prices in international trade are being determined particular account should be taken of:
(a) prices ruling on third country markets;
(b) the most favourable prices in third countries of destination for third country imports;
(c) producer prices recorded in exporting third countries, account being taken, where appropriate, of subsidies granted by those countries; and
(d) free-at-Community-frontier offer prices.
(4) Article 31(3) of Regulation (EC) No 1255/1999 provides that the world market situation or the specific requirements of certain markets may make it necessary to vary the refund on the products listed in Article 1 of the abovementioned Regulation according to destination.
(5) Article 31(3) of Regulation (EC) No 1255/1999 provides that the list of products on which export refunds are granted and the amount of such refunds should be fixed at least once every four weeks; the amount of the refund may, however, remain at the same level for more than four weeks.
(6) In accordance with Article 16 of Commission Regulation (EC) No 174/1999 of 26 January 1999 on specific detailed rules for the application of Council Regulation (EC) No 804/68 as regards export licences and export refunds on milk and milk products(3), as last amended by Regulation (EC) No 156/2002(4), the refund granted for milk products containing added sugar is equal to the sum of the two components; one is intended to take account of the quantity of milk products and is calculated by multiplying the basic amount by the milk products content in the product concerned; the other is intended to take account of the quantity of added sucrose and is calculated by multiplying the sucrose content of the entire product by the basic amount of the refund valid on the day of exportation for the products listed in Article 1(1)(d) of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(5), however, this second component is applied only if the added sucrose has been produced using sugar beet or cane harvested in the Community.
(7) Commission Regulation (EEC) No 896/84(6), as last amended by Regulation (EEC) No 222/88(7), laid down additional provisions concerning the granting of refunds on the change from one milk year to another; those provisions provide for the possibility of varying refunds according to the date of manufacture of the products.
(8) For the calculation of the refund for processed cheese provision must be made where casein or caseinates are added for that quantity not to be taken into account.
(9) It follows from applying the rules set out above to the present situation on the market in milk and in particular to quotations or prices for milk products within the Community and on the world market that the refund should be as set out in the Annex to this Regulation.
(10) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds referred to in Article 31 of Regulation (EC) No 1255/1999 on products exported in the natural state shall be as set out in the Annex.
Article 2
This Regulation shall enter into force on 12 April 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 April 2002. | [
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*****
COMMISSION DECISION
of 27 April 1988
on applications for reimbursement and the payment of advances in respect of aids granted pursuant to Council Regulation (EEC) No 1400/86
(Only the French text is authentic)
(88/286/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1400/86 of 6 May 1986 introducing a common measure for the encouragement of agriculture by improving the rearing of beef cattle in certain less-favoured areas of France (1), and in particular Article 8 (4) thereof,
Whereas applications for reimbursement and applications for the payment of advances to be presented by France to the Guidance Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) must include certain items of information making it possible to verify that the expenditure complies with the provisions of Regulation (EEC) No 1400/86 and the programme presented by France, endorsed by the Commission in accordance with Article 3 (3) of that Regulation;
Whereas, to allow for effective verification, France must hold all supporting documentation at the disposal of the Commission for a period of three years after payment of the last reimbursement;
Whereas to enable payment of the advances provided for in Article 8 (3) of Regulation (EEC) No 1400/86 to be implemented, rules relating to procedures in this connection must be laid down;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Committee of the European Agricultural Guidance and Guarantee Fund (EAGGF),
HAS ADOPTED THIS DECISION:
Article 1
1. The reimbursement applications referred to in Article 8 (1) of Regulation (EEC) No 1400/86 must comply with the tables given in Annexes I to III.
2. France shall submit to the Commission, with the first reimbursement application, texts of the national implementing and verification provisions and of the administrative instructions, and the forms and all other documents relating to the administrative implementation of the measure.
Article 2
France shall hold at the disposal of the Commission for three years after payment of the last reimbursement all the supporting documents or certified copies thereof in its possession on the basis of which the aids provided for by Regulation (EEC) No 1400/86 were approved, and also the applications for reimbursement and advances established.
Article 3
The applications for advances referred to in Article 8 (3) of Regulation (EEC) No 1400/86 must comply with the tables given in Annexes IV and V.1 to V.6.
Article 4
1. The EAGGF Guidance Section advances may not exceed 80 % of the Community contribution to the financing of the expenditure provided for during the reference year.
2. Advances not disbursed during the year for which they have been paid shall be deducted from the advance to be paid in respect of the following year.
3. Advances in respect of the following year may not be paid before the following documents have been submitted to the Commission:
- either a report drawn up in accordance with the Table in Annex VI reviewing the progress of the operations during the preceding year for which advances were paid,
- or the final application for reimbursement established in accordance with Article 1 (1).
Article 5
This Decision is addressed to France.
Done at Brussels, 27 April 1988. | [
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Commission Regulation (EC) No 2169/2001
of 8 November 2001
altering the export refunds on white sugar and raw sugar exported in the natural state
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(1), and in particular the third subparagraph of Article 27(5) thereof,
Whereas:
(1) The refunds on white sugar and raw sugar exported in the natural state were fixed by Commission Regulation (EC) No 2140/2001(2).
(2) It follows from applying the detailed rules contained in Regulation (EC) No 2140/2001 to the information known to the Commission that the export refunds at present in force should be altered to the amounts set out in the Annex hereto,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the products listed in Article 1(1)(a) of Regulation (EC) No 1260/2001, undenatured and exported in the natural state, as fixed in the Annex to Regulation (EC) No 2140/2001 are hereby altered to the amounts shown in the Annex hereto.
Article 2
This Regulation shall enter into force on 9 November 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 November 2001. | [
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*****
COMMISSION REGULATION (EEC) No 1552/81
of 9 June 1981
amending Regulations (EEC) No 1324/68, (EEC) No 1579/70, (EEC) No 2074/73 and (EEC) No 102/78 laying down special conditions for the export of certain cheeses to Switzerland, Spain and Austria
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (1), as last amended by the Act of Accession of Greece, and in particular the first subparagraph of Article 17 (4) thereof,
Having regard to Council Regulation (EEC) No 876/68 of 28 June 1968 laying down general rules for grant- ing export refunds on milk and milk products and criteria for fixing the amount of such refunds (2), as last amended by Regulation (EEC) No 2429/72 (3), and in particular Article 6 (3) thereof,
Having regard to Council Regulation (EEC) No 2931/79 of 20 December 1979 on the granting of assistance for the exportation of agricultural products which may benefit from a special import treatment in a third country (4), and in particular Article 1 (2) thereof,
Whereas Council Regulation (EEC) No 729/81 of 17 March 1981 (5) amends the Agreement on price observance and import arrangements annexed to the Agreement of 20 September 1977 between Austria and the European Economic Community concerning certain types of cheese negotiated under Article XXVIII of GATT; whereas, therefore, Annex IV to Commission Regulation (EEC) No 102/78 of 18 January 1978 laying down special conditions for exports of certain cheeses to Austria (6) should be amended accordingly;
Whereas the use of the special certificate provided for in Regulation (EEC) No 102/78 confers an advantage on the exporter; whereas, to ensure that the special certificate is used in Austria only for the purposes for which it was issued in the Community, a stricter customs control procedure should be laid down; whereas the following Regulations should also be amended accordingly:
- Commission Regulation (EEC) No 1324/68 of 29 August 1968 laying down special conditions for the export of certain cheeses to Switzerland (7), as last amended by Regulation (EEC) No 3474/80 (8),
- Commission Regulation (EEC) No 1579/70 of 4 August 1970 laying down special conditions for the export of certain cheeses to Spain (9), as last amended by Regulation (EEC) No 166/81 (10), and
- Commission Regulation (EEC) No 2074/73 of 31 July 1973 establishing the special conditions for the export of processed cheese to Switzerland (11), as last amended by Regulation (EEC) No 3474/80;
Whereas, since certain cheeses may be exported to the abovementioned non-member countries without a refund, provision should be made for the use of the special certificate in this case, too;
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 1324/68 is hereby amended as follows:
1. Article 1 shall be replaced by the following:
'Article 1
For exports to Switzerland of products listed in Annex I, a special certificate shall be issued on application by the parties concerned.'
2. The following paragraph (3) shall be added to Article 4:
'3. Where use is made of the document certifying that the cheeses have left the geographical territory of the Community without further processing, the certificate provided for in Article 1 shall be stamped only if the said document states Switzerland to be the country of destination.'
3. The following Article 4a shall be inserted:
'Article 4a
Without prejudice to other provisions contained in the Community rules, and in Regulation (EEC) No 2730/79 in particular, the granting of a refund for the products listed in Annex I and exported to Switzerland shall also be subject to presentation of a copy of the certificate duly stamped by the Swiss customs authorities in the space provided for his purpose.
No refund at a rate higher than that set for exports of cheese to Switzerland may be granted where the document used at the time of the completion of customs export formalities to qualify for the refund states Switzerland to be the country of destination.'
Article 2
Regulation (EEC) No 1579/70 is hereby amended as follows:
1. Article 1 (1) shall be replaced by the following:
'1. For exports of cheese to Spain, a special certificate shall be issued on application by the parties concerned.'
2. The following paragraph (3) shall be added to Article 4:
'3. Where use is made of the document certifying that the cheeses have left the geographical territory of the Community without further processing, the certificates provided for in Article 1 shall be endorsed only if the said document states Spain to be the country of destination.'
3. The following Article 6a shall be inserted:
'Article 6a
Without prejudice to other provisions contained in the Community rules and in Regulation (EEC) No 2730/79 in particular, the granting of a refund on exports to Spain, excluding customs territories to which special arrangements apply, of cheeses other than those listed in Annex I shall also be subject to presentation of a copy of the certificate duly endorsed by the Spanish customs authorities in the space provided for this purpose.
No refund at a rate higher than that set for exports of cheese to Spain may be granted where the document used at the time of the completion of the customs export formalities to qualify for the refund states Spain to be the country of destination.'
Article 3
Regulation (EEC) No 2074/73 is hereby amended as follows:
1. Article 1 shall be replaced by the following:
'Article 1
For exports to Switzerland of processed cheeses, falling within subheading 04.04 D II of the Common Customs Tariff, a special certificate shall be issued on application by the parties concerned.'
2. Article 2 (3) shall be replaced by the following:
'3. The certificate shall be made out in one original and at least three copies. The copies shall bear the same serial number as the original.
The original and the copies shall be completed at the same time, either in typescript or in manuscript, using carbon paper. If in manuscript they must be completed in capital letters.'
3. Article 3 shall be replaced by the following:
'Article 3
1. The certificate and copies shall be issued by the issuing agency designated by each Member State. The issuing agency shall retain one copy of the certificate.
2. When the product leaves the geographical territory of the Community, the original and two copies shall be presented at the customs office of exit, which shall endorse them in the place reserved for this purpose and return them to the interested party.
One copy endorsed by the customs office of exit is intended to be sent back to the issuing agency by the Swiss authorities.'
4. The following paragraph (3) shall be added to Article 4:
'3. Where use is made of the document certifying that the cheeses have left the geographical territory of the Community without further processing, the certificate provided for in Article 1 shall be endorsed only if the said document states Switzerland to be the country of destination.'
5. The following Article 5a shall be inserted:
'Article 5a
Without prejudice to other provisions contained in the Community rules, and in Regulation (EEC) No 2730/79 in particular, the granting of a refund for processed cheeses exported to Switzerland shall also be subject to presentation of a copy of the certificate duly endorsed by the Swiss customs authorities in the space provided for this purpose.
No refund at a rate higher than that set for exports of processed cheeses to Switzerland may be granted where the document used at the time of the completion of the customs export formalities to qualify for the refund states Switzerland to be the country of destination.' 6. The Notes to the Annex is replaced by the text of Annex I to this Regulation.
Article 4
Regulation (EEC) No 102/78 is hereby amended as follows:
1. Article 1 (1) shall be replaced by the following:
'1. For the export of cheeses to Austria, a special certificate shall be issued on application by the parties concerned.'
2. In Article 3 (5), 'or to the agency granting the refunds' shall be deleted.
3. The following paragraph (3) shall be added to Article 5:
'3. Where use is made of the document certifying that the cheeses have left the geographical territory of the Community without further processing, the certificates provided for in Article 1 shall be endorsed only if the said document states Austria to be the country of destination.'
4. The following Article is inserted:
'Article 7a
Without prejudice to other provisions contained in the Community rules and in Regulation (EEC) No 2730/79 in particular, the granting of a refund for cheeses other than those listed in Annex I and exported to Austria shall also be subject to presentation of a copy of the certificate duly endorsed by the Austrian customs authorities in the box provided for this purpose.
This certificate duly endorsed by the Austrian customs shall be considered as the proof referred to in Article 20 (3) of Regulation (EEC) No 2730/79.
No refund at a rate higher than that set for exports of cheeses to Austria may be granted where the document used at the time of the completion of the customs export formalities to qualify for the refund states Austria to be the country of destination.'
5. In Annex I, paragraph (b) shall be replaced by the following:
'(b) Other cheeses made from cow's milk with a water content in the non-fatty matter exceeding 62 % by weight, excluding the cheeses referred to in footnote ( 3) to Annex IV.'
6. Annex IV shall be replaced by Annex II to this Regulation.
Article 5
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, 9 June 1981. | [
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COUNCIL DECISION 2006/228/JHA
of 9 March 2006
fixing the date of application of certain provisions of Decision 2005/211/JHA concerning the introduction of some new functions for the Schengen Information System, including the fight against terrorism
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to Council Decision 2005/211/JHA of 24 February 2005 concerning the introduction of some new functions for the Schengen Information System, including in the fight against terrorism (1), and in particular to Article 2(4) thereof,
Whereas:
(1)
Decision 2005/211/JHA specifies that the provisions of Article 1 of that Decision shall apply from a date fixed by the Council, as soon as the necessary preconditions have been fulfilled, and that the Council may decide to fix different dates for the application of different provisions. Those preconditions have been fulfilled in respect of Article 1(7) of Decision 2005/211/JHA, new Article 100(3)(f).
(2)
As regards Switzerland, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement signed between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis (2), which falls in the area referred to in Article 1(G) of Decision 1999/437/EC (3) read in conjunction with Article 4(1) of the Council Decisions 2004/849/EC (4) on the signing on behalf of the European Union and 2004/860/EC (5) on the signing on behalf of the European Community, and on the provisional application of certain provisions of that Agreement,
HAS DECIDED AS FOLLOWS:
Article 1
Article 1(7) of Decision 2005/211/JHA, new Article 100(3)(f), shall apply from 31 March 2006.
Article 2
This Decision shall take effect on the date of its adoption. It shall be published in the Official Journal of the European Union.
Done at Brussels, 9 March 2006. | [
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Commission Regulation (EC) No 357/2002
of 26 February 2002
on the issuing of import licences for sugar and mixtures of sugar and cocoa qualifying as ACP/OCT and EC/OCT originating products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community (Overseas Association Decision)(1),
Having regard to Commission Regulation (EC) No 192/2002 of 31 January 2002 laying down detailed rules for issuing import licences for sugar and sugar and cocoa mixtures with ACP/OCT or EC/OCT cumulation of origin(2), and in particular Article 6(3) thereof,
Whereas:
(1) Article 6(4) of Annex III to Decision 2002/822/EC allows ACP/EC-OCT cumulation of origin in the case of products falling within Chapter 17 and CN codes 1806 10 30 and 1806 10 90 up to an annual quantity of 28000 tonnes of sugar.
(2) Applications have been submitted to the national authorities in accordance with Regulation (EC) No 192/2002 for the issuing of import licences for a total quantity exceeding that allowed under Decision 2001/822/EC.
(3) Article 6(3) of Regulation (EC) No 192/2002 provides that, where licence applications cover an annual quantity in excess of 28000 tonnes, the Commission is to adopt a regulation fixing a single reducing coefficient to be applied to each application submitted and suspend the submission of further applications for the year in progress.
(4) The Commission must therefore fix the reducing coefficient for the issuing of import licences and suspend the submission of further licence applications for 2002,
HAS ADOPTED THIS REGULATION:
Article 1
Import licences covered by applications submitted by 14 February 2002 pursuant to Article 6 of Regulation (EC) No 192/2002 for 45000 tonnes shall be issued for 62,22222 % of the quantity applied for.
Article 2
The submission of further applications for 2002 is hereby suspended.
Article 3
This Regulation shall enter into force on 27 February 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 February 2002. | [
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Commission Regulation (EC) No 1208/2000
of 8 June 2000
amending Council Regulation (EC) No 1420/1999 establishing common rules and procedures to apply to shipments of certain types of waste from the European Community to Bulgaria and Nigeria, and Regulation (EC) No 1547/1999 concerning the control procedures to apply to shipments of certain types of waste to Bulgaria and Nigeria
(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,
Whereas:
(1) On 29 November 1999, Nigeria made an official request to be allowed to import certain waste listed in Annex II to Regulation (EEC) No 259/93 under the control procedure applicable to wastes listed in Annex IV to Regulation (EEC) No 259/93 (i.e. the "red" procedure).
(2) On 9 December 1999, Bulgaria made an official request to be allowed to import certain waste listed in Annex II to Regulation (EEC) No 259/93 under the control procedure applicable to wastes listed in Annex III to Regulation (EEC) No 259/93 (i.e. the "amber" procedure).
(3) In accordance with Article 17(3) of Regulation (EEC) No 259/93 and Article 3 of 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), the committee instituted by Article 18 of Council Directive 75/442/EEC of 15 July 1975 on waste(4), as last amended by Commission Decision 96/350/EC(5), was notified of the official requests of Nigeria and Bulgaria on respectively 30 November 1999 and 15 December 1999.
(4) In order to take account of Nigeria's new situation, it is necessary to amend at the same time 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(6), as last amended by Regulation (EC) No 354/2000(7).
(5) In order to take account of Bulgaria's new situation, it is necessary to amend at the same time Regulation (EC) No 1420/1999 and Regulation (EC) No 1547/1999,
HAS ADOPTED THIS REGULATION:
Article 1
Annex A to Regulation (EC) No 1420/1999 is amended as follows:
(1) In section GH ("Solid plastic wastes") of the text related to Bulgaria, the following text is inserted:
TABLE "
(2) The text related to Nigeria, is modified as follows:
"All types except:
1. In section GA ('Metal and metal-alloy wastes in metallic, non-dispersible form')
The following waste and scrap of non-ferrous meals and their alloys:
TABLE
2. All types in section GH ('Solid plastic wastes')
3. All types in section GI ('Paper, paperboard and paper product waste')
4. All types in section GJ ('Textile waste')."
Article 2
Annex A to Regulation (EC) No 1547/1999 is amended as follows:
(1) In section GH ("Solid plastic wastes") of the text related to Bulgaria, the following text is inserted:
TABLE "
(2) Annex B is amended and the text related to Nigeria is modified as follows:
"1. In section GA ('Metal and metal-alloy wastes in metallic, non-dispersible form')
The following waste and scrap of non-ferrous metals and their alloys:
TABLE
2. All types in section GH ('Solid plastic wastes')
3. All types in section GI ('Paper, paperboard and paper product waste')
4. All types in section GJ ('Textile waste')."
Article 3
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 June 2000. | [
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COMMISSION DECISION
of 11 July 2006
amending Appendix B to Annex IX to the 2003 Act of Accession as regards certain establishments in the meat sector in Lithuania
(notified under document number C(2006) 3115)
(Text with EEA relevance)
(2006/480/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Act of Accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, and in particular Annex IX, Chapter 5, Section B, Subsection I, paragraph (d) thereto,
Whereas:
(1)
Lithuania has been granted transitional periods for certain establishments listed in Appendix B (1) to Annex IX to the 2003 Act of Accession.
(2)
Appendix B to Annex IX to the 2003 Act of Accession has been amended by Commission Decisions 2004/472/EC (2), 2004/473/EC (3), 2005/421/EC (4) and 2005/657/EC (5).
(3)
According to an official declaration from the Lithuanian competent authority certain establishments in the meat sector have completed their upgrading process and are now in full compliance with Community legislation. One establishment has ceased its activities. Those establishments should therefore be deleted from the list of establishments in transition.
(4)
Appendix B to Annex IX to the 2003 Act of Accession should therefore be amended accordingly. For the sake of clarity, it should be replaced.
(5)
The Standing Committee on the Food Chain and Animal Health has been informed of the measures provided for in this Decision,
HAS ADOPTED THIS DECISION:
Article 1
Appendix B to Annex IX to the 2003 Act of Accession is replaced by the text in the Annex to this Decision.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 11 July 2006. | [
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COMMISSION REGULATION (EEC) No 1672/92 of 29 June 1992 amending Regulation (EEC) No 1106/90 on the communication of information for the purposes of the common organization of the market in fishery products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3687/91 of 28 November 1991 on the common organization of the market in fishery products (1), and in particular Articles 11 (4), 17 (5) and 19 (6) thereof,
Whereas Commission Regulation (EEC) No 1106/90 (2), as amended by Regulation (EEC) No 1868/91 (3), lays down the list of representative wholesale markets and ports for the products listed in Annexes I (A), (D) and (E), II and III to Regulation (EEC) No 3687/91;
Whereas Community legislation applies in the Canary Islands since 1 July 1991;
Whereas, in order to apply the provisions of the common organization of the market in the fishery products sector in the region concerned, the relevant representative ports and markets must be laid down;
Whereas the list of representative ports for Norway lobster should also be amended;
Whereas Regulation (EEC) No 1160/90 must be amended accordingly;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fishery Products,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 1106/91 is amended as follows:
1. in Annex I, part I, point 2 (a) (Atlantic sardines), the word 'Arrecife' is added;
2. in Annex I, part III, under Norway lobster (tails), the word 'Skagen' is added;
3. in Annex I, part V, points 1 to 5 (cephalopods), the words 'Las Palmas' are added;
4. in Annex I, part VI (tunny), the word 'Arrecife' is added.
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 1992. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 June 1992. | [
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COUNCIL DECISION
of 17 February 2005
appointing two German members and two German alternate members of the Committee of the Regions
(2005/157/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 263 thereof,
Having regard to the proposal from the German Government,
Whereas:
(1)
On 22 January 2002 the Council adopted Decision 2002/60/EC (1) appointing the members and alternate members of the Committee of the Regions.
(2)
Two seats as members of the Committee of the Regions have become vacant following the expiry of the mandates of Ms Barbara RICHSTEIN and Mr Manfred LENZ, notified to the Council on 12 January 2005, one seat as an alternate member of the Committee of the Regions has become vacant following the expiry of the mandate of Mr Wolfgang KLEIN, notified to the Council on 7 December 2004, and one seat as an alternate member of the Committee of the Regions has become vacant following the resignation of Mr Hans-Georg KLUGE, notified to the Council on 21 December 2004,
HAS DECIDED AS FOLLOWS:
Sole Article
The following are hereby appointed to the Committee of the Regions
(a)
as members:
Mr Gerd HARMS
Bevollmächtigter des Landes Brandenburg für Bundes- und Europaangelegenheiten,
Staatssekretär in der Staatskanzlei
in place of Ms Barbara RICHSTEIN
Ms Barbara RICHSTEIN
Abgeordnete des Landtages Brandenburg
in place of Mr Manfred LENZ
(b)
as alternate members:
Mr Markus KARP
Staatssekretär im Ministerium für Wissenschaft, Forschung und Kultur
in place of Mr Hans-Georg KLUGE
Mr Steffen REICHE
Mitglied des Landtages
in place of Mr Wolfgang KLEIN
for the remainder of their term of office, which runs until 25 January 2006.
Done at Brussels, 17 February 2005. | [
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Commission Regulation (EC) No 1780/2003
of 10 October 2003
amending Regulation (EC) No 2366/98 laying down detailed rules for the application of the system of production aid for olive oil for the 1998/99 to 2003/04 marketing years
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1638/98 of 20 July 1998 amending Regulation No 136/66/EEC on the establishment of a common organisation of the market in oils and fats(1), as last amended by Regulation (EC) No 1513/2001(2), and in particular Article 2(4) thereof,
Whereas:
(1) Article 2(1) of Regulation (EC) No 1638/98 provides for the creation of a geographical information system (GIS) to improve knowledge of and checks on the production of olive oil at the level of the individual producer. Article 2a of Regulation (EC) No 1638/98 provides that, as from 1 November 2003, olive trees and corresponding areas, the presence of which is not attested by an olive cultivation GIS established in accordance with Article 2 of that Regulation, cannot constitute a basis for aid to be paid to olive producers under the common market organisation in oils and fats.
(2) Articles 23 to 26 of Commission Regulation (EC) No 2366/98(3), as last amended by Regulation (EC) No 2383/2002(4), lay down rules for the application of the olive cultivation GIS and the conditions under which it may be deemed to have been completed at regional or national level.
(3) More particularly, the third subparagraph of Article 26(3) of Regulation (EC) No 2366/98 provides for a procedure under which the Commission is to determine whether the olive cultivation GIS has been completed on the basis of a report from the Member State concerned. Given the fact that the creation of a GIS is to become a compulsory requirement for obtaining olive oil production aid, and in order to simplify administrative procedures to enable the GIS to be used rapidly and effectively, the requirement that that procedure be followed should be abolished.
(4) However, the Member States' obligation to inform the Commission of the measures taken to create the olive cultivation GIS and of its completion should be maintained.
(5) Article 26(3) of Regulation (EC) No 2366/98 should therefore be amended.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Oils and Fats,
HAS ADOPTED THIS REGULATION:
Article 1
Article 26(3) of Regulation (EC) No 2366/98 is hereby replaced by the following:
"3. The Member States shall inform the Commission of national measures taken under Articles 23 to 26 and of completion of the olive cultivation GIS at Member State level or, where applicable, regional level."
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 October 2003. | [
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COMMISSION REGULATION (EC) No 15/2007
of 10 January 2007
fixing the allocation coefficient to be applied to applications for import licences lodged from 1 to 8 January 2007 under the Community tariff quota for maize opened by Regulation (EC) No 969/2006
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1),
Having regard to Commission Regulation (EC) No 1301/2006 of 31 August 2006 laying down common rules for the administration of import tariff quotas for agricultural products managed by a system of import licences (2), and in particular Article 7(2) thereof,
Whereas:
(1)
Commission Regulation (EC) No 969/2006 (3) has opened an annual import tariff quota of 242 074 tonnes of maize (serial number 09.4131).
(2)
Article 2(1) of Regulation (EC) No 969/2006 fixes a quantity of 121 037 tonnes for subperiod 1 for the period from 1 January to 30 June 2007.
(3)
Based on the notification made under Article 4(3) of Regulation (EC) No 969/2006, the applications lodged from 1 to 8 January 2007 at 13.00 (Brussels time) in accordance with Article 4(1) of that Regulation, relate to quantities in excess of those available. The extent to which import licences may be issued should therefore be determined and the allocation coefficient laid down to be applied to the quantities applied for.
(4)
Import licences should no longer be issued under Regulation (EC) No 969/2006 for the current quota subperiod,
HAS ADOPTED THIS REGULATION:
Article 1
1. Each import licence application for maize under the quota referred to in Regulation (EC) No 969/2006 and lodged from 1 to 8 January 2007 at 13.00 (Brussels time) shall give rise to the issue of a licence for the quantities applied for, multiplied by an allocation coefficient of 0,960088 %.
2. The issue of licences for the quantities applied for from 13.00 (Brussels time) on 8 January 2007 is hereby suspended for the current quota subperiod.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 January 2007. | [
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COUNCIL DECISION
of 28 April 1987
concerning the conclusion of a Convention between the European Economic Community and the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Kingdom of Norway, the Kingdom of Sweden and the Swiss Confederation on the simplification of formalities in trade in goods
(87/267/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 recommendation from the Commission,
Whereas the conclusion of a Convention with Austria, Finland, Iceland, Norway, Sweden and Switzerland with a view to introducing, in trade between the Community and those countries, as well as between those countries themselves, a single administrative document replacing the present declarations, must enable the formalities to be completed in such trade to be eased and simplified; whereas it is therefore appropriate to conclude such a Convention;
Whereas this Convention falls within the framework of follow-up action to the Joint Declaration made in Luxembourg on 9 April 1984 by the Ministers of the Member States of the Community, the European Free Trade Association (EFTA) and the Commission expressing their political will to extend cooperation between the Community and these countries, ‘with the aim of creating a dynamic European economic space of benefit to their countries’,
HAS DECIDED AS FOLLOWS:
Article 1
The Convention between the European Economic Community and the Republic of Austria, the Republic of Finland, the Republic of Iceland, the Kingdom of Norway, the Kingdom of Sweden and the Swiss Confederation on the simplification of formalities in trade in goods is hereby approved on behalf of the Community.
The text of the Convention is attached to this Decision.
Article 2
The Community shall be represented in the Joint Committee provided for in Article 10 of the Convention by the Commission, assisted by representatives of the Member States.
Article 3
The President of the Council shall deposit the acts provided for in Article 17 of the Convention (1).
Done at Luxembourg, 28 April 1987. | [
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COMMISSION REGULATION (EU) No 1/2010
of 4 January 2010
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1),
Having regard to Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules for Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (2), and in particular Article 138(1) thereof,
Whereas:
Regulation (EC) No 1580/2007 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XV, Part A thereto,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 138 of Regulation (EC) No 1580/2007 are fixed in the Annex hereto.
Article 2
This Regulation shall enter into force on 5 January 2010.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 January 2010. | [
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COMMISSION REGULATION (EC) No 1081/2007
of 19 September 2007
on the issuing of import licences for applications lodged during the first seven days of September 2007 under the tariff quota opened by Regulation (EC) No 536/2007 for poultrymeat
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2777/75 of 29 October 1975 on the common organisation of the market in poultrymeat (1),
Having regard to Commission Regulation (EC) No 536/2007 of 15 May 2007 opening and providing for the administration of a tariff quota for poultrymeat allocated to the United States of America (2), and in particular Article 5(5) thereof,
Whereas:
(1)
Regulation (EC) No 536/2007 opened import tariff quotas for poultrymeat products.
(2)
The applications for import licences lodged during the first seven days of September 2007 for the subperiod 1 October to 31 December 2007 do not cover the total quantity available. The quantities for which applications have not been lodged should therefore be determined and these should be added to the quantity fixed for the following quota subperiod,
HAS ADOPTED THIS REGULATION:
Article 1
The quantities for which import licence applications under quota 09.4169 have not been lodged under Regulation (EC) No 536/2007, to be added to the subperiod 1 January to 31 March 2008, are 8 332 500 kg.
Article 2
This Regulation shall enter into force on 20 September 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 September 2007. | [
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Commission Regulation (EC) No 2304/2003
of 29 December 2003
amending Regulation (EC) No 2808/98 laying down detailed rules for the application of the agrimonetary system for the euro in agriculture
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 agrimonetary arrangements for the euro(1), and in particular Article 9 thereof,
Whereas:
(1) Under Article 4(1) of Commission Regulation (EC) No 2808/98(2), the operative event for the exchange rate in the case of aid per hectare is the start of the marketing year in respect of which the aid is granted.
(2) Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001(3), includes aid for energy crops, which applies from 1 January 2004.
(3) This aid for energy crops is granted for the calendar year and not the marketing year. The operative event for the exchange rate for this aid should therefore be established.
(4) Regulation (EC) No 2808/98 should therefore be amended accordingly.
(5) The measures provided for in this Regulation are in accordance with the opinions of the Management Committees concerned,
HAS ADOPTED THIS REGULATION:
Article 1
The following second subparagraph is added to Article 4(1) of Regulation (EC) No 2808/98:"However, for the aid referred to in Chapter 5 of Title IV of Council Regulation (EC) No 1782/2003(4), the operative event for the exchange rate shall be 1 January of the year in which the aid is granted."
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 January 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 December 2003. | [
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Commission Regulation (EC) No 2230/2002
of 13 December 2002
on the issue of system B export licences in the fruit and vegetables sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 1961/2001 of 8 October 2001 on detailed rules for implementing Council Regulation (EC) No 2200/96 as regards export refunds on fruit and vegetables(1), as last amended by Regulation (EC) No 1176/2002(2), and in particular Article 6(6) thereof,
Whereas:
(1) Commission Regulation (EC) No 1886/2002(3) fixes the indicative quantities for system B export licences other than those sought in the context of food aid.
(2) In the light of the information available to the Commission today, there is a risk that the indicative quantities laid down for the current export period for lemons will shortly be exceeded. This overrun will prejudice the proper working of the export refund scheme in the fruit and vegetables sector.
(3) To avoid this situation, applications for system B licences for lemons after 13 December 2002 should be rejected until the end of the current export period,
HAS ADOPTED THIS REGULATION:
Article 1
Applications for system B export licences for lemons submitted pursuant to Article 1 of Regulation (EC) No 1886/2002, export declarations for which are accepted after 13 December 2002 and before 15 January 2003, are hereby rejected.
Article 2
This Regulation shall enter into force on 14 December 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 December 2002. | [
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COUNCIL REGULATION (EC) No 260/2009
of 26 February 2009
on the common rules for imports
(Codified version)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof,
Having regard to the instruments establishing the common organisation of agricultural markets and the instruments concerning processed agricultural products adopted in pursuance of Article 308 of the Treaty, in particular in so far as they provide for derogation from the general principle that quantitative restrictions or measures having equivalent effect may be replaced solely by the measures provided for in the said instruments,
Having regard to the proposal from the Commission,
Whereas:
(1)
Council Regulation (EC) No 3285/94 of 22 December 1994 on the common rules for imports and repealing Regulation (EC) No 518/94 (1) has been substantially amended several times (2). In the interests of clarity and rationality the said Regulation should be codified.
(2)
The common commercial policy should be based on uniform principles.
(3)
The Community has concluded the Agreement establishing the World Trade Organisation, hereinafter referred to as the ‘WTO’. Annex 1A to that Agreement contains inter alia the General Agreement on Tariffs and Trade 1994 (GATT 1994) and an Agreement on Safeguards.
(4)
The Agreement on Safeguards meets the need to clarify and reinforce the disciplines of GATT 1994, and specifically those of Article XIX. That Agreement requires the elimination of safeguard measures which escape those rules, such as voluntary export restraints, orderly marketing arrangements and any other similar import or export arrangements.
(5)
The Agreement on Safeguards also covers coal and steel products. The common rules for imports, especially as regards safeguard measures, therefore also apply to those products without prejudice to any possible measures to apply an agreement specifically concerning coal and steel products.
(6)
The textile products covered by Council Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols or other arrangements, or by other specific Community import rules (3) are subject to special treatment at Community and international level. They should therefore be excluded from the scope of this Regulation.
(7)
The Commission should be informed by the Member States of any danger created by trends in imports which might call for Community surveillance or the application of safeguard measures.
(8)
In such instances the Commission should examine the terms and conditions under which imports occur, the trend in imports, the various aspects of the economic and trade situations and, where appropriate, the measures to be applied.
(9)
If prior Community surveillance is applied, release for free circulation of the products concerned should be made subject to presentation of a surveillance document meeting uniform criteria. That document should, on simple application by the importer, be issued by the authorities of the Member States within a certain period but without the importer thereby acquiring any right to import. The surveillance document should therefore be valid only during such period as the import rules remain unchanged.
(10)
The Member States and the Commission should exchange the information resulting from Community surveillance as fully as possible.
(11)
It falls to the Commission and the Council to adopt the safeguard measures required by the interests of the Community. Those interests should be considered as a whole and should in particular encompass the interests of Community producers, users and consumers.
(12)
Safeguard measures against a member of the WTO may be considered only if the product in question is imported into the Community in such greatly increased quantities and on such terms or conditions as to cause, or threaten to cause, serious injury to Community producers of like or directly competing products, unless international obligations permit derogation from this rule.
(13)
The terms ‘serious injury’, ‘threat of serious injury’ and ‘Community producers’ should be defined and precise criteria for determining injury should be established.
(14)
An investigation should precede the application of any safeguard measure, subject to the reservation that the Commission be allowed in urgent cases to apply provisional measures.
(15)
There should be detailed provisions on the opening of investigations, the checks and inspections required, access by exporter countries and interested parties to the information gathered, hearings for the parties involved and the opportunities for those parties to submit their views.
(16)
The provisions on investigations introduced by this Regulation are without prejudice to Community or national rules concerning professional secrecy.
(17)
It is also necessary to set time limits for the initiation of investigations and for determinations as to whether or not measures are appropriate, with a view to ensuring that such determinations are made quickly, in order to increase legal certainty for the economic operators concerned.
(18)
In cases in which safeguard measures take the form of a quota the level of the latter should be set in principle no lower than the average level of imports over a representative period of at least three years.
(19)
In cases in which a quota is allocated among supplier countries each country’s quota may be determined by agreement with the countries themselves or by taking as a reference the level of imports over a representative period. Derogations from these rules should nevertheless be possible where there is serious injury and a disproportionate increase in imports, provided that due consultation under the auspices of the WTO Committee on Safeguards takes place.
(20)
The maximum duration of safeguard measures should be determined and specific provisions regarding extension, progressive liberalisation and reviews of such measures be laid down.
(21)
The circumstances in which products originating in a developing country which is a member of the WTO are to be exempt from safeguard measures should be established.
(22)
Surveillance or safeguard measures confined to one or more regions of the Community may prove more suitable than measures applying to the whole Community. However, such measures should be authorised only exceptionally and where no alternative exists. It is necessary to ensure that such measures are temporary and cause the minimum of disruption to the operation of the internal market.
(23)
In the interest of uniformity in rules for imports, the formalities to be carried out by importers should be simplified and made identical regardless of the place where the goods clear customs. It is therefore desirable to provide that any formalities should be carried out using forms corresponding to the specimen annexed to the Regulation.
(24)
Surveillance documents issued in connection with Community surveillance measures should be valid throughout the Community irrespective of the Member State of issue,
HAS ADOPTED THIS REGULATION:
CHAPTER I
General principles
Article 1
1. This Regulation applies to imports of products originating in third countries, except for:
(a)
textile products subject to specific import rules under Regulation (EC) No 517/94;
(b)
the products originating in certain third countries listed in Council Regulation (EC) No 519/94 of 7 March 1994 on common rules for imports from certain third countries (4).
2. The products referred to in paragraph 1 shall be freely imported into the Community and accordingly, without prejudice to the safeguard measures which may be taken under Chapter V, shall not be subject to any quantitative restrictions.
CHAPTER II
Community information and consultation procedure
Article 2
Member States shall inform the Commission if trends in imports appear to call for surveillance or safeguard measures. This information shall contain the evidence available, as determined on the basis of the criteria laid down in Article 10. The Commission shall immediately pass this information on to all the Member States.
Article 3
1. Consultations may be held either at the request of a Member State or on the initiative of the Commission.
2. Consultations shall take place within eight working days of the Commission receiving the information provided for in Article 2 and, in any event, before the introduction of any Community surveillance or safeguard measure.
Article 4
1. Consultations shall take place within an Advisory Committee, hereinafter called ‘the Committee’, made up of representatives of each Member State with a representative of the Commission as chairman.
2. The Committee shall meet when convened by its chairman. He shall provide the Member States with all relevant information as promptly as possible.
3. Consultations shall cover in particular:
(a)
terms and conditions of import, import trends and the various aspects of the economic and commercial situation with regard to the product in question;
(b)
the measures, if any, to be taken.
4. Consultations may be conducted in writing if necessary. The Commission shall in this event inform the Member States, which may express their opinion or request oral consultations within a period of five to eight working days, to be decided by the Commission.
CHAPTER III
Community investigation procedure
Article 5
1. Without prejudice to Article 8, the Community investigation procedure shall be implemented before any safeguard measure is applied.
2. Using as a basis the factors referred to in Article 10, the investigation shall seek to determine whether imports of the product in question are causing or threatening to cause serious injury to the Community producers concerned.
3. The following definitions shall apply:
(a)
‘serious injury’ means a significant overall impairment in the position of Community producers;
(b)
‘threat of serious injury’ means serious injury that is clearly imminent;
(c)
‘Community producers’ means the producers as a whole of the like or directly competing products operating within the territory of the Community, or those whose collective output of the like or directly competing products constitutes a major proportion of the total Community production of those products.
Article 6
1. Where, after the consultations referred to in Articles 3 and 4, it is apparent to the Commission that there is sufficient evidence to justify the initiation of an investigation, the Commission shall initiate an investigation within one month of receipt of information from a Member State and publish a notice in the Official Journal of the European Union. This notice shall:
(a)
give a summary of the information received, and require that all relevant information is to be communicated to the Commission;
(b)
state the period within which interested parties may make known their views in writing and submit information, if such views and information are to be taken into account during the investigation;
(c)
state the period within which interested parties may apply to be heard orally by the Commission in accordance with paragraph 4.
The Commission shall commence the investigation, acting in cooperation with the Member States.
2. The Commission shall seek all information it deems to be necessary and, where it considers it appropriate, after consulting the Committee, endeavour to check this information with importers, traders, agents, producers, trade associations and organisations.
The Commission shall be assisted in this task by staff of the Member State on whose territory these checks are being carried out, provided that Member State so wishes.
3. The Member States shall supply the Commission, at its request and following procedures laid down by it, with the information at their disposal on developments in the market of the product being investigated.
4. Interested parties which have come forward pursuant to the first subparagraph of paragraph 1 and representatives of the exporting country may, upon written request, inspect all information made available to the Commission in connection with the investigation other than internal documents prepared by the authorities of the Community or its Member States, provided that that information is relevant to the presentation of their case and not confidential within the meaning of Article 9 and that it is used by the Commission in the investigation.
Interested parties which have come forward may communicate their views on the information in question to the Commission. Those views may be taken into consideration where they are backed by sufficient evidence.
5. The Commission may hear the interested parties. Such parties must be heard where they have made a written application within the period laid down in the notice published in the Official Journal of the European Union, showing that they are actually likely to be affected by the outcome of the investigation and that there are special reasons for them to be heard orally.
6. When information is not supplied within the time limits set by this Regulation or by the Commission pursuant to this Regulation, or the investigation is significantly impeded, findings may be made on the basis of the facts available. Where the Commission finds that any interested party or third party has supplied it with false or misleading information, it shall disregard the information and may make use of facts available.
7. Where it appears to the Commission, after the consultations referred to in Articles 3 and 4, that there is insufficient evidence to justify an investigation, it shall inform the Member States of its decision within one month of receipt of the information from the Member States.
Article 7
1. At the end of the investigation, the Commission shall submit a report on the results to the Committee.
2. Where the Commission considers, within nine months of the initiation of the investigation, that no Community surveillance or safeguard measures are necessary, the investigation shall be terminated within a month, the Committee having first been consulted.
The decision to terminate the investigation, stating the main conclusions of the investigation and a summary of the reasons therefore, shall be published in the Official Journal of the European Union.
3. If the Commission considers that Community surveillance or safeguard measures are necessary, it shall take the necessary decisions in accordance with Chapters IV and V, no later than nine months from the initiation of the investigation. In exceptional circumstances, this time limit may be extended by a further maximum period of two months; the Commission shall then publish a notice in the Official Journal of the European Union setting forth the duration of the extension and a summary of the reasons therefore.
Article 8
1. The provisions of this Chapter shall not preclude the use, at any time, of surveillance measures in accordance with Articles 11 to 15 or provisional safeguard measures in accordance with Articles 16, 17 and 18.
Provisional safeguard measures shall be applied:
(a)
in critical circumstances where delay would cause damage which would be difficult to repair, making immediate action necessary; and
(b)
where a preliminary determination provides clear evidence that increased imports have caused or are threatening to cause serious injury.
The duration of such measures shall not exceed 200 days.
2. Provisional safeguard measures shall take the form of an increase in the existing level of customs duty, whether the latter is zero or higher, if such action is likely to prevent or repair the serious injury.
3. The Commission shall immediately conduct whatever investigation measures are still necessary.
4. Should the provisional safeguard measures be repealed because no serious injury or threat of serious injury exists, the customs duties collected as a result of the provisional measures shall be automatically refunded as soon as possible. The procedure laid down in Article 235 et seq. of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (5) shall apply.
Article 9
1. Information received pursuant to this Regulation shall be used only for the purpose for which it was requested.
2. Neither the Council, nor the Commission, nor the Member States, nor the officials of any of these shall reveal any information of a confidential nature received pursuant to this Regulation, or any information provided on a confidential basis without specific permission from the supplier of such information.
3. Each request for confidentiality shall state the reasons why the information is confidential.
However, if it appears that a request for confidentiality is unjustified and if the supplier of the information wishes neither to make it public nor to authorise its disclosure in general terms or in the form of a summary, the information concerned may be disregarded.
4. Information shall in any case be considered to be confidential if its disclosure is likely to have a significantly adverse effect upon the supplier or the source of such information.
5. Paragraphs 1 to 4 shall not preclude reference by the Community authorities to general information and in particular to reasons on which decisions taken pursuant to this Regulation are based. Those authorities shall, however, take into account the legitimate interest of legal and natural persons concerned that their business secrets should not be divulged.
Article 10
1. Examination of the trend in imports, of the conditions in which they take place and of serious injury or threat of serious injury to Community producers resulting from such imports shall cover in particular the following factors:
(a)
the volume of imports, in particular where there has been a significant increase, either in absolute terms or relative to production or consumption in the Community;
(b)
the price of imports, in particular where there has been a significant price undercutting as compared with the price of a like product in the Community;
(c)
the consequent impact on Community producers as indicated by trends in certain economic factors such as:
-
production,
-
capacity utilisation,
-
stocks,
-
sales,
-
market share,
-
prices (i.e. depression of prices or prevention of price increases which would normally have occurred),
-
profits,
-
return on capital employed,
-
cash flow,
-
employment;
(d)
factors other than trends in imports which are causing or may have caused injury to the Community producers concerned.
2. Where a threat of serious injury is alleged, the Commission shall also examine whether it is clearly foreseeable that a particular situation is likely to develop into actual injury.
In this regard account may be taken of factors such as:
(a)
the rate of increase of the exports to the Community;
(b)
export capacity in the country of origin or export, as it stands or is likely to be in the foreseeable future, and the likelihood that that capacity will be used to export to the Community.
CHAPTER IV
Surveillance
Article 11
1. Where the trend in imports of a product originating in a third country covered by this Regulation threatens to cause injury to Community producers, and where the interests of the Community so require, import of that product may be subject, as appropriate, to:
(a)
retrospective Community surveillance carried out in accordance with the provisions laid down in the decision referred to in paragraph 2;
(b)
prior Community surveillance carried out in accordance with Article 12.
2. The decision to impose surveillance shall be taken by the Commission according to the procedure laid down in the second subparagraph of Article 16(6) and Article 16(7).
3. The surveillance measures shall have a limited period of validity. Unless otherwise provided, they shall cease to be valid at the end of the second six-month period following the six months in which the measures were introduced.
Article 12
1. Products under prior Community surveillance may be put into free circulation only on production of a surveillance document. Such document shall be issued by the competent authority designated by Member States, free of charge, for any quantity requested and within a maximum of five working days of receipt by the national competent authority of an application by any Community importer, regardless of his place of business in the Community. This application shall be deemed to have been received by the national competent authority no later than three working days after submission, unless it is proved otherwise.
2. The surveillance document shall be made out on a form corresponding to the model in Annex I.
Except where the decision to impose surveillance provides otherwise, the importer’s application for surveillance documents shall contain only the following:
(a)
the full name and address of the applicant (including telephone and fax numbers and any number identifying the applicant to the competent national authority), plus the applicant’s VAT registration number if he is liable for VAT;
(b)
where appropriate, the full name and address of the declarant or of any representative appointed by the applicant (including telephone and fax numbers);
(c)
a description of the goods giving:
-
their trade name,
-
their combined nomenclature code,
-
their place of origin and place of consignment;
(d)
the quantity declared, in kilograms and, where appropriate, any other additional unit (pairs, items, etc.);
(e)
the value of the goods, cif at Community frontier, in euro;
(f)
the following statement, dated and signed by the applicant, with the applicant’s name spelt out in capital letters:
‘I, the undersigned, certify that the information provided in this application is true and given in good faith, and that I am established in the Community.’
3. The surveillance document shall be valid throughout the Community, regardless of the Member State of issue.
4. A finding that the unit price at which the transaction is effected exceeds that indicated in the surveillance document by less than 5 % or that the total value or quantity of the products presented for import exceeds the value or quantity given in the surveillance document by less than 5 % shall not preclude the release for free circulation of the product in question. The Commission, having heard the opinions expressed in the Committee and taking account of the nature of the products and other special features of the transactions concerned, may fix a different percentage, which, however, should not normally exceed 10 %.
5. Surveillance documents may be used only for such time as arrangements for liberalisation of imports remain in force in respect of the transactions concerned. Such surveillance documents may not in any event be used beyond the expiry of a period which shall be laid down at the same time and by means of the same procedure as the imposition of surveillance, and shall take account of the nature of the products and other special features of the transactions.
6. Where the decision taken pursuant to Article 11 so requires, the origin of products under Community surveillance must be proved by a certificate of origin. This paragraph shall not affect other provisions concerning the production of any such certificate.
7. Where the product under prior Community surveillance is subject to regional safeguard measures in a Member State, the import authorisation granted by that Member State may replace the surveillance document.
8. Surveillance document forms and extracts thereof shall be drawn up in duplicate, one copy, marked ‘Holder’s copy’ and bearing the number 1, to be issued to the applicant, and the other, marked ‘Copy for the competent authority’ and bearing the number 2, to be kept by the authority issuing the document. For administrative purposes the competent authority may add supplementary copies to form 2.
9. Forms shall be printed on white paper free of mechanical pulp, dressed for writing and weighing between 55 g and 65 g per square metre. Their size shall be 210 mm × 297 mm; the type space between the lines shall be 4,24 mm (one sixth of an inch); the layout of the forms shall be followed precisely. Both sides of copy No 1, which is the surveillance document itself, shall in addition have a yellow printed guilloche pattern background so as to reveal any falsification by mechanical or chemical means.
10. Member States shall be responsible for having the forms printed. The forms may also be printed by printers appointed by the Member State in which they are established. In the latter case, reference to the appointment by the Member State must appear on each form. Each form shall bear an indication of the printer’s name and address or a mark enabling the printer to be identified.
Article 13
Where import of a product has not been made subject to prior Community surveillance within eight working days of the end of the consultations referred to in Articles 3 and 4, the Commission, in accordance with Article 18, may introduce surveillance confined to imports into one or more regions of the Community.
Article 14
1. Products under regional surveillance may be put into free circulation in the region concerned only on production of a surveillance document. Such document shall be issued by the competent authority designated by the Member State(s) concerned, free of charge, for any quantity requested and within a maximum of five working days of receipt by the national competent authority of an application by any Community importer, regardless of his place of business in the Community. This application shall be deemed to have been received by the national competent authority no later than three working days after submission, unless it is proved otherwise. Surveillance documents may be used only for such time as arrangements for imports remain liberalised in respect of the transactions concerned.
2. Article 12(2) shall apply.
Article 15
1. Member States shall communicate to the Commission within the first 10 days of each month in the case of Community or regional surveillance:
(a)
in the case of prior surveillance, details of the sums of money (calculated on the basis of cif prices) and quantities of goods in respect of which surveillance documents were issued during the preceding period;
(b)
in every case, details of imports during the period preceding the period referred to in point (a).
The information supplied by Member States shall be broken down by product and by country.
Different provisions may be laid down at the same time and by the same procedure as the surveillance arrangements.
2. Where the nature of the products or special circumstances so require, the Commission may, at the request of a Member State or on its own initiative, amend the timetables for submitting this information.
3. The Commission shall inform the Member States accordingly.
CHAPTER V
Safeguard measures
Article 16
1. Where a product is imported into the Community in such greatly increased quantities and/or on such terms or conditions as to cause, or threaten to cause, serious injury to Community producers, the Commission, in order to safeguard the interests of the Community, may, acting at the request of a Member State or on its own initiative:
(a)
limit the period of validity of surveillance documents within the meaning of Article 12 to be issued after the entry into force of this measure;
(b)
alter the import rules for the product in question by making its release for free circulation conditional on production of an import authorisation, the granting of which shall be governed by such provisions and subject to such limits as the Commission shall lay down.
The measures referred to in (a) and (b) shall take effect immediately.
2. As regards members of the WTO, the measures referred to in paragraph 1 shall be taken only when the two conditions indicated in the first subparagraph of that paragraph are met.
3. If establishing a quota, account shall be taken in particular of:
(a)
the desirability of maintaining, as far as possible, traditional trade flows;
(b)
the volume of goods exported under contracts concluded on normal terms and conditions before the entry into force of a safeguard measure within the meaning of this Chapter, where such contracts have been notified to the Commission by the Member State concerned;
(c)
the need to avoid jeopardising achievement of the aim pursued in establishing the quota.
Any quota shall not be set lower than the average level of imports over the last three representative years for which statistics are available unless a different level is necessary to prevent or remedy serious injury.
4. In cases in which a quota is allocated among supplier countries, allocation may be agreed with those of them having a substantial interest in supplying the product concerned for import into the Community.
Failing this, the quota shall be allocated among the supplier countries in proportion to their share of imports into the Community of the product concerned during a previous representative period, due account being taken of any specific factors which may have affected or may be affecting the trade in the product.
Provided that its obligation to see that consultations are conducted under the auspices of the WTO Committee on Safeguards is not disregarded, the Community may nevertheless depart from this method of allocation in the case of serious injury if imports originating in one or more supplier countries have increased in disproportionate percentage in relation to the total increase of imports of the product concerned over a previous representative period.
5. The measures referred to in this Article shall apply to every product which is put into free circulation after their entry into force. In accordance with Article 18 they may be confined to one or more regions of the Community.
However, such measures shall not prevent the release for free circulation of products already on their way to the Community provided that the destination of such products cannot be changed and that those products which, pursuant to Articles 11 and 12, may be put into free circulation only on production of a surveillance document are in fact accompanied by such a document.
6. Where intervention by the Commission has been requested by a Member State, the Commission shall take a decision within a maximum of five working days of receipt of such a request.
Any decision taken by the Commission pursuant to this Article shall be communicated to the Council and to the Member States. Any Member State may, within one month following the day of such communication, refer the decision to the Council.
7. If a Member State refers the Commission’s decision to the Council, the Council, acting by a qualified majority, may confirm, amend or revoke that decision.
If, within three months of the referral of the matter to the Council, the Council has not taken a decision, the decision taken by the Commission shall be deemed revoked.
Article 17
Where the interests of the Community so require, the Council, acting by a qualified majority on a proposal from the Commission drawn up in accordance with the terms of Chapter III, may adopt appropriate measures to prevent a product being imported into the Community in such greatly increased quantities and/or on such terms or conditions as to cause, or threaten to cause, serious injury to Community producers of like or directly competing products.
Article 16(2) to (5) shall apply.
Article 18
Where it emerges, primarily on the basis of the factors referred to in Article 10, that the conditions laid down for the adoption of measures pursuant to Articles 11 and 16 are met in one or more regions of the Community, the Commission, after having examined alternative solutions, may exceptionally authorise the application of surveillance or safeguard measures limited to the region(s) concerned if it considers that such measures applied at that level are more appropriate than measures applied throughout the Community.
These measures must be temporary and must disrupt the operation of the internal market as little as possible.
The measures shall be adopted in accordance with the provisions laid down in Articles 11 and 16.
Article 19
No safeguard measure may be applied to a product originating in a developing country member of the WTO as long as that country’s share of Community imports of the product concerned does not exceed 3 %, provided that developing country members of the WTO with less than a 3 % import share collectively account for not more than 9 % of total Community imports of the product concerned.
Article 20
1. The duration of safeguard measures must be limited to the period of time necessary to prevent or remedy serious injury and to facilitate adjustment on the part of Community producers. The period must not exceed four years, including the duration of any provisional measure.
2. Such initial period may be extended, except in the case of the measures referred to in the third subparagraph of Article 16(4) provided it is determined that:
(a)
the safeguard measure continues to be necessary to prevent or remedy serious injury;
(b)
there is evidence that Community producers are adjusting.
3. Extensions shall be adopted in accordance with the terms of Chapter III and using the same procedures as the initial measures. A measure so extended shall not be more restrictive than it was at the end of the initial period.
4. If the duration of the measure exceeds one year, the measure must be progressively liberalised at regular intervals during the period of application, including the period of extension.
5. The total period of application of a safeguard measure, including the period of application of any provisional measures, the initial period of application and any prorogation thereof, may not exceed eight years.
Article 21
1. While any surveillance or safeguard measure applied in accordance with Chapters IV and V is in operation, consultations shall be held within the Committee, either at the request of a Member State or on the initiative of the Commission. If the duration of a safeguard measure exceeds three years, the Commission shall seek such consultations no later than the mid-point of the period of application of that measure. The purpose of such consultations shall be:
(a)
to examine the effects of the measure;
(b)
to determine whether and in what manner it is appropriate to accelerate the pace of liberalisation;
(c)
to ascertain whether application of the measure is still necessary.
2. Where, as a result of the consultations referred to in paragraph 1, the Commission considers that any surveillance or safeguard measure referred to in Articles 11, 13, 16, 17 and 18 should be revoked or amended, it shall proceed as follows:
(a)
where the measure was enacted by the Council, the Commission shall propose to the Council that it be revoked or amended. The Council shall act by a qualified majority;
(b)
in all other cases, the Commission shall amend or revoke Community safeguard and surveillance measures.
Where the decision relates to regional surveillance measures, it shall apply from the sixth day following its publication in the Official Journal of the European Union.
Article 22
1. Where imports of a product have already been subject to a safeguard measure, no further measure shall be applied to that product until a period equal to the duration of the previous measure has elapsed. Such period shall not be less than two years.
2. Notwithstanding paragraph 1, a safeguard measure of 180 days or less may be re-imposed for a product if:
(a)
at least one year has elapsed since the date of introduction of a safeguard measure on the import of that product; and
(b)
such a safeguard measure has not been applied to the same product more than twice in the five-year period immediately preceding the date of introduction of the measure.
CHAPTER VI
Final provisions
Article 23
Where the interests of the Community so require, the Council, acting by a qualified majority on a proposal from the Commission, may adopt appropriate measures to allow the rights and obligations of the Community or of all its Member States, in particular those relating to trade in commodities, to be exercised and fulfilled at international level.
Article 24
1. This Regulation shall not preclude the fulfilment of obligations arising from special rules contained in agreements concluded between the Community and third countries.
2. Without prejudice to other Community provisions, this Regulation shall not preclude the adoption or application by Member States:
(a)
of prohibitions, quantitative restrictions or surveillance measures on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants, the protection of national treasures possessing artistic, historic or archaeological value, or the protection of industrial and commercial property;
(b)
of special formalities concerning foreign exchange;
(c)
of formalities introduced pursuant to international agreements in accordance with the Treaty.
The Member States shall inform the Commission of the measures or formalities they intend to introduce or amend in accordance with the first subparagraph.
In the event of extreme urgency, the national measures or formalities in question shall be communicated to the Commission immediately upon their adoption.
Article 25
1. This Regulation shall be without prejudice to the operation of the instruments establishing the common organisation of agricultural markets or of Community or national administrative provisions derived therefrom or of the specific instruments applicable to goods resulting from the processing of agricultural products. It shall operate by way of complement to those instruments.
2. In the case of products covered by the instruments referred to in paragraph 1, Articles 11 to 15 and Article 22 shall not apply to those in respect of which the Community rules on trade with third countries require the production of a licence or other import document.
Articles 16, 18 and 21 to 24 shall not apply to those products in respect of which such rules provide for the application of quantitative import restrictions.
Article 26
Regulation (EC) No 3285/94, as amended by the acts listed in Annex II, is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex III.
Article 27
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 February 2009. | [
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COMMISSION REGULATION (EEC) No 1994/92 of 14 July 1992 imposing a provisional anti-dumping duty on imports into the Community of outer rings of tapered roller bearings originating in Japan
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the European Economic Community (1), and in particular Article 7 thereof,
After consultations within the Advisory Committee as provided for under the above Regulation,
Whereas:
A. PROCEDURE
(1) In September 1990, the Commission received a written complaint lodged by the Federation of European Bearing Manufacturers' Associations (Febma). The output of the members of this Federation allegedly represented a major proportion of the Community production of the product in question.
(2) The complaint contained evidence of dumping of outer rings of tapered roller bearings originating in Japan and of material injury resulting therefrom. This evidence was considered sufficient to justify the initiation of a proceeding.
(3) The Commission accordingly announced by means of a notice published in the Official Journal of the European Communities (2) the initiation of an anti-dumping proceeding concerning outer rings of tapered roller bearings originating in Japan, falling within combined nomenclature (CN) code ex 8482 99 00 and commenced an investigation.
(4) The Commission officially advised all Community producers, importers and Japanese manufacturers known to be concerned, the representatives of the exporting country, and the complainants. All parties directly concerned were given the opportunity to make their views known in writing and to request a hearing.
(5) The Commission sought and verified all information it deemed to be necessary for the purposes of a preliminary determination and carried out investigations at the premises of the following:
(a) Community producers/related sales companies:
- France:
- SKF France SA, Clamart,
- Timken France, Colmar;
- Germany:
- FAG Kugelfischer Georg Schaefer KGaA, Schweinfurt,
- SKF GmbH, Schweinfurt;
- United Kingdom:
- British Timken, Duston,
- SKF (UK) Ltd, Luton;
(b) producers in Japan:
- Koyo Seiko Co. Ltd, Osaka,
- NTN Corporation, Osaka;
(c) related importers in the Community:
- France:
- Koyo France SA, Argenteuil,
- NTN France SA, Schweighouse-sur-Moder;
- Germany:
- Deutsche Koyo Waelzlager Verkaufs GmbH, Hamburg,
- NTN Waelzlager (Europa) GmbH, Erkrath;
- United Kingdom:
- Koyo (UK) Ltd, Milton Keynes,
- NTN (UK) Ltd, Lichfield.
(6) The investigation concerning dumping covered the period 1 January to 31 December 1990 (the 'investigation period').
B. PRODUCT UNDER CONSIDERATION LIKE PRODUCT
(7) The products concerned in this proceeding are the outer rings of tapered roller bearings. In the bearing industry they are commonly called 'TRB cups' and are hereinafter referred to in this Regulation as such.
(8) TRB cups on their own have no function, but are one of the components which comprise complete tapered roller bearings, (i.e. together with inner rings, rollers and roller retainers).
(9) TRB cups sold on the Japanese market are alike in all respects to the products exported to the Community and which are the subject of this proceeding. In addition, TRB cups produced by the Community manufacturers are alike to the products under consideration.
C. DUMPING
1. General
(10) In view of the many different TRB cup models which exist, all dumping calculations were based on the top selling models to the Community of both the Japanese companies concerned. These models represented at least 80 % of the total number of pieces exported by these companies to the Community. In monetary terms, they constitute more than 75 % of each company's exports of TRB cups.
(11) Customers for TRB cups in Japan and the Community fall into two distinct categories (and sales channels), namely industrial manufacturers who incorporate TRB cups into their own products and distributors who supply TRB cups for replacement purposes.
(12) During the investigation it was found that domestic sales by the Japanese producers were almost exclusively made to industrial manufacturers. Accordingly, the Commission's calculations concerning dumping concern only these sales.
2. Normal value
(13) Normal value was established on the basis of the weighted average net domestic sales price (i.e. net of all rebates, discounts, sales taxes, etc.) to the first independent customer in Japan for each type of TRB cup taken into consideration if:
- the weighted average net domestic sales price for that type (loss making transactions accounting for a small proportion of all transactions) exceeded the cost of production including selling, general and other administrative expenses (SGA), and
- the volume of domestic sales was equivalent to at least 5 % of the export volume to the Community of the type in question.
(14) When the domestic sales of a particular type were less than 5 % of the quantity exported to the Community, a model alleged to be comparable to the model exported was examined. It was found, however, that although the models put forward by the manufacturers as comparable were always technically similar in terms of dimensions and tolerances etc., they were not always made of the same quality materials, nor was the finish the same. In view of these differences, which were reflected in the large variations in price often found between such models, the Commission considered that such models could not be regarded as sufficiently comparable for appropriate adjustments for differences in physical characteristics to be made.
(15) In such cases the cost of production of the exported model plus SGA together with the profit realized by the manufacturer on its profitable sales of the like product on the domestic market, which were considered representative on an overall basis, has been taken as the basis for calculating normal value in accordance with Article 2 (3) (b) (ii) of Regulation (EEC) No 2423/88.
(16) Normal value was similarly constructed where the exported model concerned had a domestic weighted net sales price below its cost of production plus SGA. In such a case, the cost of production plus SGA plus the profit realized by the manufacturer on its profitable sales of the like product on the domestic market has been taken as the basis for calculating normal value in accordance with Article 2 (3) (b) (ii) of Regulation (EEC) No 2423/88.
3. Export price
(17) For sales made by the Japanese producers to their subsidiaries in the Community, export prices of the TRB cup models taken into consideration were constructed on a transaction-by-transaction basis using resale prices to the first independent buyer in France, Germany or the United Kingdom, adjusted to take account of all costs incurred between importation and resale, together with a reasonable profit on the turnover of the subsidiary. In this case, based on the Commission's estimate of the profitability of the trade sector concerned, a profit margin of 6 % was considered reasonable.
(18) It was considered appropriate to base the calculation of export prices only on sales to independent industrial manufacturing customers in France, Germany or the United Kingdom, as together these three markets accounted for approximately 90 % of all Japanese resales in the Community.
(19) Export sales made directly to independent customers in the Community were found to be negligible when compared to the overall export volume of the companies concerned and consequently were not taken into consideration.
4. Comparison
(20) Comparison of export prices and normal value was made only for identical TRB cup models, i.e. those whose specification and precision level was the same.
(21) Adjustments to take account of directly related selling expenses on the Japanese domestic market were also made. However, no allowance was given if such expenses could not satisfactorily be shown to relate directly to the sales in question.
(22) As far as the differences, if any, between the physical characteristics of TRB cups sold in Japan and those sold to the Community are concerned, the Commission considered that such differences had no effect for the purpose of price comparison.
(23) On a transaction-by-transaction basis at ex-factory level, export prices for each TRB cup model were compared to the normal value for that model.
5. Dumping margins
(24) The dumping margin for both Japanese companies was calculated as being the total amount by which normal values exceeded export values for all the types selected.
(25) As a percentage of the total cif export value of all types taken into consideration, the margins of dumping established are as follows:
- Koyo Seiko Co. Ltd 12,4 %,
- NTN Corporation 6,0 %.
(26) For those producers that neither replied to the Commission's questionnaire nor otherwise made themselves known, the dumping margin for these companies was determined on the basis of the facts available in accordance with Article 7 (7) (b) of Regulation (EEC) No 2423/88. Given that the cooperating companies comprise substantially all exports of TRB cups to the Community, it is considered appropriate to base the dumping margin for these other companies on the higher of the dumping margins found, i.e.: 12,4 %.
D. INJURY
1. General remarks
(27) As the combined nomenclature heading under which TRB cups are classified covers more than just these products, accurate officially compiled statistics are not available. The Commission's injury investigation data are therefore, by necessity, based on data provided by the cooperating Community producers and Japanese manufacturers.
(28) In addition, as only two Japanese manufacturers are concerned, for reasons of confidentiality it has been necessary to use indices in some of the data given in this Regulation.
(29) The companies lodging the complaint account for approximately 80 % of the total Community output of TRB cups.
(30) For the purpose of this section of the Regulation, it should also be noted that most of the data relates to the French, German and United Kingdom markets as together they account for the majority of Community sales of TRB cups manufactured in the Community and also those resold by the Japanese manufacturers in the Community. The information concerning estimated market volume, however, refers to all Community markets.
2. Volume of Community market and market share of dumped imports
(31) As regards market volume, estimated consumption of TRB cups in the Community dropped by 11,5 % between 1988 and the investigation period.
(32) Estimated dumped imports of TRB cups of Japanese origin rose significantly, however, by 24 % between 1988 and the investigation period. This development represents an increase in the market share held by such imports from 11,2 % in 1988 to 14,3 % during the investigation period.
3. Price undercutting
(33) With regard to price undercutting, it was found that during the investigation period, dumped cups imported from Japan and resold on the Community market on average undercut the prices of the Community producers' models at the same level of trade by the following percentages:
- Koyo Seiko Co. Ltd 9,4 %,
- NTN Corporation 6,1 %.
4. Situation of the Community industry
(a) Production, capacity, utilization rate and stocks
(34) When analysing the relevant economic factors, the Commission found that the performance of the Community producers had been variable. Overall figures for the Community industry are, however, given below.
(35) Production volume of the Community producers was as follows:
1988 Index = 100 1989 114 1990 109.
(36) The production capacity of the Community producers was as follows:
1988 Index = 100 1989 109 1990 120.
(37) Capacity utilization dropped as follows:
1988 94,9 % 1989 96,2 % 1990 89,1 %.
(38) Community producers' stocks of TRB cups increased by approximately 13 % between 1988 and the reference period.
(b) Sales, market share and profits
(39) The Community producers' sales (pieces) of TRB cups on the French, German and United Kingdom markets declined as follows:
1988 Index = 100 1989 96 1990 85.
(40) With regard to the values of such sales, these also dropped:
1988 Index = 100 1989 103 1990 95.
(41) The market share of the Community producers also declined between 1988 and the investigation period:
1988 88,8 % 1989 87,4 % 1990 85,7 %.
(42) The Commission has calculated that TRB cups sold in France, Germany and the United Kingdom facing direct competition from dumped models in the sample were making a loss of 14,2 % during the investigation period. When looking however at the profitability of all types of the like product sold by Community producers in the same markets, the loss is 2,3 %. Thus, the level of loss sustained by the Community industry can be seen to be a result of the level of exposure of its products to dumped competition.
5. Conclusion
(43) Given these poor financial results and in view of the decline in sales and market share of the Community producers, the Commission considers that the Community industry has suffered material injury.
E. CAUSATION OF INJURY
1. Effects of dumped imports
(44) As there are no perceptible quality differences between the goods under investigation produced in either the Community or Japan the competition between Community producers and Japanese manufacturers is based mainly on prices.
Information provided to the Commission concerning major industrial customers shows that these companies keep their supply options open and buy from a cross-section of both Community and Japanese sources. In this transparent market situation the prices of the dumped Japanese products have had a price suppressing effect.
(45) The undercutting established in this investigation and the particular exposure of certain Community produced models to the dumped imports has had a detrimental effect on this sector of the Community bearing industry. It should, however, also be noted that in certain other areas of bearing production where Japanese companies are not alleged to be dumping (i.e. cylindrical, spherical, needle bearings, etc.), Community manufacturers producing these type of products are trading more profitably.
(46) As has already been mentioned, the loss made by the Community producers on their sales of TRB cups which are identical in type to the dumped Japanese types is significantly greater than the loss made overall.
2. Other possible causes of injury
(47) With regard to the effects of TRB cups originating in other third countries, from information supplied to the Commission it appeared that such imports were in small quantities and mainly from companies related to the Community producers (e.g. parent companies or subsidiary companies). The Commission therefore considers that imports from third countries other than Japan have had little or no effect on the lack of profitability of the Community producers.
(48) While the drop in consumption may have had some negative effect on the Community producers, this does not explain the higher levels of loss incurred on sales of TRB cups facing competition from dumped imports nor the increased market share of the Japanese producers.
(49) After taking account of the above factors, the Commission concludes that the injury sustained by the Community industry, taken in isolation from all other factors, is material and that a causal link has been established between the injury suffered and the dumped imports from Japan.
F. COMMUNITY INTEREST
(50) In general, it is in the Community interest for there to be fair and workable competition and the purpose of measures in this case is to ensure a situation of fair competition. In considering the Community interest, the Commission has taken account of the interests of the Community bearing industry, the users of bearings and the final consumer of the end product.
(51) As far as the industrial purchasers are concerned, it can be argued that some benefit could be derived from them being able to buy dumped, low-priced TRB cups. For the final consumers, however, any such benefit would be minimal, since the goods in question normally account for only a small proportion of the final price of most finished products. Even though the effect on the price of the final product to the consumer would be negligible, the benefit provided by anti-dumping measures to the TRB cup producers is considerable.
(52) Leaving the Community industry without protection against unfair competition will cause a continued deterioration of its situation. The Commission has therefore concluded that, on balance, the interest of the Community clearly lies in granting protection to its bearing industry against unfair imports and proposes the introduction of anti-dumping measures.
G. PROVISIONAL DUTY
(53) In order to eliminate the injury suffered by the Community producers it is necessary to remove the undercutting as described in recital 33. In addition, these producers would need to be placed in a position where they could achieve price rises and so enable them to eliminate losses and to realize adequate returns on sales.
(54) With regard to profit shortfall and lowest return on sales, the Community industry considered a net profit before tax of 15 % to be the necessary minimum. Being an established industry, however, and in view of the profit level achieved historically, this is considered not to be a reasonable profit margin.
(55) The Commission is of the opinion that after taking into account the need to finance additional investments in manufacturing facilities and research and development, a pre-tax profit rate of 8 % should be used as the basis for assessing profit shortfall in this case.
(56) The profit shortfall of the Community producers for TRB cups sold in the Community is therefore 10,3 %.
With regard to the calculation of the duty necessary to remove the injury suffered by the Community industry, the Commission took into account both profit shortfall and the individual level of price undercutting of the Japanese producers.
(57) The injury margins established on this basis are higher than the dumping margins established, therefore the anti-dumping duty to be imposed should correspond to the margin of dumping established for each company.
Accordingly, the following provisional rates of anti-dumping duty should apply:
- Koyo Seiko Co. Ltd 12,4 %,
- NTN Corporation 6,0 %.
(58) The anti-dumping duty rate for outer rings of tapered roller bearings originating in Japan and manufactured by companies not listed in recital 57 should be fixed on the basis of the facts available. Given that the imports of the two companies concerned account for a high proportion of all imports into the Community of TRB cups originating in Japan, the Commission considers that the result of its investigation forms the most appropriate basis. Thus, the level of duty to be applied against all other Japanese manufacturers is 12,4 %.
(59) A period should be fixed within which the parties concerned may make their views known and request a hearing. Furthermore, it should be stated that all findings made for the purpose of this Regulation are provisional and may have to be reconsidered for the purpose of any definitive duty which the Commission may propose,
HAS ADOPTED THIS REGULATION:
Article 1
1. A provisional anti-dumping duty is hereby imposed on imports of outer rings of tapered roller bearings originating in Japan and falling within CN code ex 8482 99 00 (Taric codes 8482 99 00*11 and 8482 99 00*91).
2. The rate of duty, applicable to the net free-at-Community frontier price before duty shall be 12,4 % (Taric additional code 8669) except when produced by NTN Corporation, Tokyo (Taric additional code 8668), when it shall be 6,0 %.
3. The provisions in force concerning customs duties shall apply.
4. The release for free circulation in the Community of the products referred to in paragraph 1 shall be subject to the provision of a security, equivalent to the amount of the provisional duty.
Article 2
Without prejudice to Article 7 (4) (b) and (c) of Regulation (EEC) No 2423/88, the parties concerned may make known their views in writing and apply to be heard orally by the Commission within one month of the date of entry into force of this Regulation.
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
Subject to Articles 11, 12 and 13 of Regulation (EEC) No 2423/88, Article 1 of this Regulation shall apply for a period of four months, unless the Council adopts definitive measures before the expiry of that period. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 July 1992. | [
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COMMISSION REGULATION (EC) No 645/2005
of 27 April 2005
on granting of import licences for cane sugar for the purposes of certain tariff quotas and preferential agreements
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (1),
Having regard to Council Regulation (EC) No 1095/96 of 18 June 1996 on the implementation of the concessions set out in Schedule CXL drawn up in the wake of the conclusion of the GATT XXIV.6 negotiations (2),
Having regard to Commission Regulation (EC) No 1159/2003 of 30 June 2003 laying down detailed rules of application for the 2003/2004, 2004/2005 and 2005/2006 marketing years for the import of cane sugar under certain tariff quotas and preferential agreements and amending Regulations (EC) No 1464/95 and (EC) No 779/96 (3), and in particular Article 5(3) thereof,
Whereas:
(1)
Article 9 of Regulation (EC) No 1159/2003 stipulates how the delivery obligations at zero duty of products of CN code 1701, expressed in white sugar equivalent, are to be determined for imports originating in signatory countries to the ACP Protocol and the Agreement with India.
(2)
Article 16 of Regulation (EC) No 1159/2003 stipulates how the zero duty tariff quotas for products of CN code 1701 11 10, expressed in white sugar equivalent, are to be determined for imports originating in signatory countries to the ACP Protocol and the Agreement with India.
(3)
Article 22 of Regulation (EC) No 1159/2003 opens tariff quotas at a duty of EUR 98 per tonne for products of CN code 1701 11 10 for imports originating in Brazil, Cuba and other third countries.
(4)
In the week 18 to 22 April 2005 applications were presented to the competent authorities in line with Article 5(1) of Regulation (EC) No 1159/2003 for import licences for a total quantity exceeding the contingent stipulated in Article 16 of Regulation (EC) No 1159/2003 for special preferential sugar.
(5)
In these circumstances the Commission must set reduction coefficients to be used so that licences are issued for quantities scaled down in proportion to the total available and must indicate that the limit in question has been reached,
HAS ADOPTED THIS REGULATION:
Article 1
In the case of import licence applications presented from 18 to 22 April 2005 in line with Article 5(1) of Regulation (EC) No 1159/2003 licences shall be issued for the quantities indicated in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 28 April 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 April 2005. | [
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Commission Regulation (EC) No 317/2002
of 20 February 2002
fixing representative prices in the poultrymeat and egg sectors and for egg albumin, and amending Regulation (EC) No 1484/95
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2771/75 of 29 October 1975 on the common organisation of the market in eggs(1), as last amended by Commission Regulation (EC) No 1516/96(2), and in particular Article 5(4) thereof,
Having regard to Council Regulation (EEC) No 2777/75 of 29 October 1975 on the common organisation of the market in poultrymeat(3), as last amended by Commission Regulation (EC) No 2916/95(4), and in particular Article 5(4) thereof,
Having regard to Council Regulation (EEC) No 2783/75 of 29 October 1975 on the common system of trade for ovalbumin and lactalbumin(5), as last amended by Regulation (EC) No 2916/95, and in particular Article 3(4) thereof,
Whereas:
(1) Commission Regulation (EC) No 1484/95(6), as last amended by Regulation (EC) No 118/2002(7), fixes detailed rules for implementing the system of additional import duties and fixes representative prices in the poultrymeat and egg sectors and for egg albumin.
(2) It results from regular monitoring of the information providing the basis for the verification of the import prices in the poultrymeat and egg sectors and for egg albumin that the representative prices for imports of certain products should be amended taking into account variations of prices according to origin. Therefore, representative prices should be published.
(3) It is necessary to apply this amendment as soon as possible, given the situation on the market.
(4) 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
Annex I to Regulation (EC) No 1484/95 is hereby replaced by the Annex hereto.
Article 2
This Regulation shall enter into force on 21 February 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 February 2002. | [
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COMMISSION REGULATION (EC) No 342/2009
of 23 April 2009
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 (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural market and on specific provisions for certain agricultural products (single CMO Regulation) (1), and in particular Article 164(2) thereof,
Whereas:
(1)
Article 162(1) b of Regulation (EC) No 1234/2007 provides that the difference between prices in international trade for the products referred to in Article 1(1) (s) and listed in Part XIX of Annex 1 to 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 Part V of the Annex XX to that Regulation.
(2)
Commission Regulation (EC) No 1043/2005 of 30 June 2005 implementing Council Regulation (EC) No 3448/93 as regards the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds (2), specifies the products for which a rate of refund is to be fixed, to be applied where these products are exported in the form of goods listed in Part V of Annex XX to Regulation (EC) No 1234/2007.
(3)
In accordance with paragraph 2 (b) of Article 14 of Regulation (EC) No 1043/2005, the rate of the refund per 100 kilograms for each of the basic products in question is to be fixed for a period of the same duration as that for which refunds are fixed for the same products exported unprocessed.
(4)
Article 11 of the Agreement on Agriculture concluded under the Uruguay Round lays down that the export refund for a product contained in a good may not exceed the refund applicable to that product when exported without further processing.
(5)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Markets,
HAS ADOPTED THIS REGULATION:
Article 1
The rates of the refunds applicable to the basic products listed in Annex I to Regulation (EC) No 1043/2005 and in Article 1(1)(s) of Regulation (EC) No 1234/2007, and exported in the form of goods listed in Part V of Annex XX to Regulation (EC) No 1234/2007, shall be fixed as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 24 April 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 April 2009. | [
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COMMISSION REGULATION (EC) No 49/2007
of 22 January 2007
on the issue of licences for the import of garlic in the quarter from 1 March to 31 May 2007
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables (1),
Having regard to Commission Regulation (EC) No 1870/2005 of 16 November 2005 opening and providing for the administration of tariff quotas and introducing a system of import licences and certificates of origin for garlic imported from third countries (2), and in particular Article 10(2) thereof,
Whereas:
(1)
The quantities for which licence applications have been lodged by traditonal importers and by new importers during the first five working days of January 2007, pursuant to Article 8(3) of Regulation (EC) No 1870/2005 exceed the quantities available for products originating in China, Argentina and all third countries other than China and Argentina.
(2)
It is now necessary to establish the extent to which the licence applications sent to the Commission by 15 January 2007 can be met and to fix, for each category of importer and product origin, the dates until which the issue of certificates should be suspended,
HAS ADOPTED THIS REGULATION:
Article 1
Applications for import licences lodged pursuant to Article 4(1) of Regulation (EC) No 1870/2005, during the first five working days of January 2007 and sent to the Commission by 15 January 2007, shall be met at a percentage rate of the quantities applied for as set out in Annex I to this Regulation.
Article 2
For each category of importer and the origin involved, applications for import licences pursuant to Article 4(1) of Regulation (EC) No 1870/2005 relating to the quarter from 1 March to 31 May 2007 and lodged after the first five working days of January 2007 but before the date in Annex II to this Regulation, shall be rejected.
Article 3
This Regulation shall enter into force on 23 January 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 January 2007. | [
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COMMISSION DECISION of 16 May 1997 on the appointment of members of the European Consultative Forum on the environment and sustainable development (Text with EEA relevance) (97/307/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Decision 97/150/EC of 24 February 1997 on the setting up of a European Consultative Forum on the environment and sustainable development (1), and in particular Articles 4 and 7 (1) thereof,
Whereas the members of the European Consultative Forum on the environment and sustainable development are to be appointed by the Commission in the light of recommendations from organizations representing each sector concerned at Community level;
Whereas it is necessary to appoint 32 Members of the Forum for a period of four years;
Whereas it is necessary that the Commission designate a chairman from among the members of the Forum for a period of two years,
HAS DECIDED AS FOLLOWS:
Article 1
The following are appointed as members of the European Consultative Forum on the environment and sustainable development:
Maria Buitenkamp
Willy Buschak
Margarida Cancela d'Abreu
Carmen de Andrés
Oliver Doubleday
Brigitte Ederer
John Elkington
Sylvie Faucheux
Marco Gaasch
Ralph Hallo
Thomas Immelmann
Per Kågeson
Jens Kampmann
Klaus Kohlhase
Jacques Kummer
Arunas Kundrotas
Bedrich Moldan
Armando Montanari
Joaquín Nieto Sainz
Hannu Nilsen
Thymio Papayannis
Ingolf Pernice
Giorgio Porta
Teresa Presas
Fiona Reynolds
Jean Salmon
Thorvald Stoltenberg
Uno Svedin
Margaret Sweeney
Laurence Tubiana
Silvia Zamboni
Tomasz Zylicz
Article 2
Thorvald Stoltenberg is designated as chairman of the European Consultative Forum on the environment and sustainable development for a period of two years.
Done at Brussels, 16 May 1997. | [
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COUNCIL DIRECTIVE of 17 February 1975 on the approximation of the laws of the Member States relating to collective redundancies (75/129/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;
Having regard to the Opinion of the European Parliament (1);
Having regard to the Opinion of the Economic and Social Committee (2);
Whereas it is important that greater protection should be afforded to workers in the event of collective redundancies while taking into account the need for balanced economic and social development within the Community;
Whereas, despite increasing convergence, differences still remain between the provisions in force in the Member States of the Community concerning the practical arrangements and procedures for such redundancies and the measures designed to alleviate the consequences of redundancy for workers;
Whereas these differences can have a direct effect on the functioning of the common market;
Whereas the Council resolution of 21 January 1974 (3) concerning a social action programme makes provision for a Directive on the approximation of Member States' legislation on collective redundancies;
Whereas this approximation must therefore be promoted while the improvement is being maintained within the meaning of Article 117 of the Treaty,
HAS ADOPTED THIS DIRECTIVE:
SECTION I Definitions and scope
Article 1
1. For the purposes of this Directive: (a) "collective redundancies" means dismissals effected by an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the Member States, the number of redundancies is: - either, over a period of 30 days: (1) at least 10 in establishments normally employing more than 20 and less than 100 workers;
(2) at least 10 % of the number of workers in establishments normally employing at least 100 but less than 300 workers;
(3) at least 30 in establishments normally employing 300 workers or more;
- or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question;
(b) "workers" representatives' means the workers' representatives provided for by the laws or practices of the Member States.
2. This Directive shall not apply to: (a) collective redundancies affected under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such contracts;
(b) workers employed by public administrative bodies or by establishments governed by public law (or, in Member States where this concept is unknown, by equivalent bodies);
(c) the crews of sea-going vessels;
(d) workers affected by the termination of an establishment's activities where that is the result of a judicial decision.
SECTION II Consultation procedure
Article 2
1. Where an employer is contemplating collective redundancies, he shall begin consultations with the workers' representatives with a view to reaching an agreement. (1)OJ No C 19, 12.4.1973, p. 10. (2)OJ No C 100, 22.11.1973, p. 11. (3)OJ No C 13, 12.2.1974, p. 1.
2. These consultations shall, at least, cover ways and means of avoiding collective redundancies or reducing the number of workers affected, and mitigating the consequences.
3. To enable the workers' representatives to make constructive proposals the employer shall supply them with all relevant information and shall in any event give in writing the reasons for the redundancies, the number of workers to be made redundant, the number of workers normally employed and the period over which the redundancies are to be effected.
The employer shall forward to the competent public authority a copy of all the written communications referred to in the preceding subparagraph.
SECTION III Procedure for collective redundancies
Article 3
1. Employers shall notify the competent public authority in writing of any projected collective redundancies.
This notification shall contain all relevant information concerning the projected collective redundancies and the consultations with workers' representatives provided for in Article 2, and particularly the reasons for the redundancies, the number of workers to be made redundant, the number of workers normally employed and the period over which the redundancies are to be effected.
2. Employers shall forward to the workers' representatives a copy of the notification provided for in paragraph 1.
The workers' representatives may send any comments they may have to the competent public authority.
Article 4
1. Projected collective redundancies notified to the competent public authority shall take effect not earlier than 30 days after the notification referred to in Article 3 (1) without prejudice to any provisions governing individual rights with regard to notice of dismissal.
Member States may grant the competent public authority the power to reduce the period provided for in the preceding subparagraph.
2. The period provided for in paragraph 1 shall be used by the competent public authority to seek solutions in the problems raised by the projected collective redundancies.
3. Where the initial period provided for in paragraph 1 is shorter than 60 days, Member States may grant the competent public authority the power to extend the initial period to 60 days following notification where the problems raised by the projected collective redundancies are not likely to be solved within the initial period.
Member States may grant the competent public authority wider powers of extension.
The employer must be informed of the extension and the grounds for it before expiry of the initial period provided for in paragraph 1.
SECTION IV Final provisions
Article 5
This Directive shall not affect the right of Member States to apply or to introduce laws, regulations or administrative provisions which are more favourable to workers.
Article 6
1. Member States shall bring into force the laws, regulations and administrative provisions needed in order to comply with this Directive within two years following its notification and shall forthwith inform the Commission thereof.
2. Member States shall communicate to the Commission the texts of the laws, regulations and administrative provisions which they adopt in the field covered by this Directive.
Article 7
Within two years following expiry of the two year period laid down in Article 6, Member States shall forward all relevant information to the Commission to enable it to draw up a report for submission to the Council on the application of this Directive.
Article 8
This Directive is addressed to the Member States.
Done at Brussels, 17 February 1975. | [
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COMMISSION REGULATION (EC) No 657/94 of 24 March 1994 fixing advance payments in respect of the production levies in the sugar sector for the 1993/94 marketing year
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 133/94 (2), and in particular Article 28 (8) thereof,
Whereas Article 5 of Commission Regulation (EEC) No 1443/82 of 8 June 1982 laying down detailed rules for the application of the quota system in the sugar sector (3), as last amended by Regulation (EC) No 392/94 (4), provides for the fixing before 1 April, and the collection before the following 1 June, of the unit amounts to be paid by sugar producers and isoglucose producers as advance payments of the production levies for the current marketing year; whereas the estimate of the basic production levy and of the B levy, referred to in Article 6 of Regulation (EEC) No 1443/82, gives an amount which is more than 60 % of the maximum amounts indicated in Article 28 (3), (4) and (5) of Regulation (EEC) No 1785/81; whereas, in accordance with Article 6 of Regulation (EEC) No 1443/82, the unit amounts for sugar should therefore be fixed at 50 % of the maximum amounts concerned and for isoglucose the unit amount of the advance payment should therefore be fixed at 40 % of the unit amount of the basic production levy estimated for sugar;
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
The unit amounts referred to in Article 5 (1) (b) of Regulation (EEC) No 1443/82 in respect of the 1993/94 marketing year are hereby fixed as follows:
(a) the advance payment of the basic production levy for A sugar and B sugar shall be ECU 0,523 per 100 kilograms of white sugar;
(b) the advance payment of the B levy for B sugar shall be ECU 9,812 per 100 kilograms of white sugar;
(c) the advance payment of the basic production levy for A isoglucose and B isoglucose shall be ECU 0,419 per 100 kilograms of dry matter.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 March 1994. | [
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Commission Regulation (EC) No 427/2004
of 4 March 2004
fixing the reference prices for certain fishery products for the 2004 fishing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 104/2000 of 17 December 1999 on the common organisation of the markets in fishery and aquaculture products(1), and in particular Article 29(1) and (5) thereof,
Whereas:
(1) Regulation (EC) No 104/2000 provides that reference prices valid for the Community may be fixed each year, by product category, for products that are the subject of a tariff suspension pursuant to Article 28(1). The same holds for products which, by virtue of being either the subject of a binding tariff reduction under the WTO or some other preferential arrangements, must comply with a reference price.
(2) For the products listed in its Annex I(A) and (B) to Regulation (EC) No 104/2000, the reference price is the same as the withdrawal price fixed in accordance with Article 20(1) of that Regulation.
(3) The Community withdrawal and selling prices for the products concerned are fixed for the 2004 fishing year by Commission Regulation (EC) No 425/2004(2).
(4) The reference price for products other than those listed in Annexes I and II to Regulation (EC) No 104/2000 is established on the basis of the weighted average of customs values recorded on the import markets or in the ports of import in the three years immediately preceding the date on which the reference price is fixed.
(5) There is no need to fix reference prices for all the species covered by the criteria laid down in Regulation (EC) No 104/2000, and particularly not for those imported from third countries in insignificant volumes.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fishery Products,
HAS ADOPTED THIS REGULATION:
Article 1
The reference prices for the 2004 fishing year of fishery products as provided for in accordance with Article 29 of Regulation (EC) No 104/2000 are 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.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 March 2004. | [
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Commission Regulation (EC) No 1255/2003
of 14 July 2003
granting no award with regard to beef put up for sale under the second invitation to tender referred to in Regulation (EC) No 1032/2003
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal(1), as last amended by Commission Regulation (EC) No 806/2003(2), and in particular Article 28(2) thereof,
Whereas:
(1) Tenders have been invited for certain quantities of beef fixed by Commission Regulation (EC) No 1032/2003 of 17 June 2003 on periodical sales by tender of beef held by certain intervention agencies and intended for processing within the Community(3).
(2) Pursuant to Article 9 of Commission Regulation (EEC) No 2173/79 of 4 October 1979 on detailed rules of application for the disposal of beef bought in by intervention agencies and repealing Regulation (EEC) No 216/69(4), as last amended by Regulation (EC) No 2417/95(5), the minimum selling prices for meat put up for sale by tender should be fixed, taking into account tenders submitted. Pursuant to Article 3(2) of Regulation (EC) No 1032/2003, a decision may be taken not to proceed with the tendering procedure.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
No award is made against the second invitation to tender held in accordance with Regulation (EC) No 1032/2003 for which the time limit for the submission of tenders was 8 July 2003.
Article 2
This Regulation shall enter into force on 15 July 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 July 2003. | [
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Commission Regulation (EC) No 1468/2003
of 19 August 2003
amending the import duties in the cereals sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals(1), as last amended by Regulation (EC) No 1104/2003(2),
Having regard to Commission Regulation (EC) No 1249/96 of 28 June 1996 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards import duties in the cereals sector(3), as last amended by Regulation (EC) No 1110/2003(4), and in particular Article 2(1) thereof,
Whereas:
(1) The import duties in the cereals sector are fixed by Commission Regulation (EC) No 1448/2003(5).
(2) Article 2(1) of Regulation (EC) No 1249/96 provides that if during the period of application, the average import duty calculated differs by EUR 5 per tonne from the duty fixed, a corresponding adjustment is to be made. Such a difference has arisen. It is therefore necessary to adjust the import duties fixed in Regulation (EC) No 1448/2003,
HAS ADOPTED THIS REGULATION:
Article 1
Annexes I and II to Regulation (EC) No 1448/2003 are hereby replaced by Annexes I and II to this Regulation.
Article 2
This Regulation shall enter into force on 20 August 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 August 2003. | [
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Council Decision
of 3 December 2001
on the conclusion of an Additional Protocol adjusting the trade aspects of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, to take account of the outcome of the negotiations between the parties on reciprocal preferential concessions for certain wines, the reciprocal recognition, protection and control of wine names and the reciprocal recognition, protection and control of designations for spirits and aromatised drinks
(2001/916/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133, in conjunction with the first sentence of the first subparagraph of Article 300(2), and Article 300(4) thereof,
Having regard to the proposal from the Commission,
Whereas:
(1) The Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, hereinafter referred to as the "Stabilisation and Association Agreement", was initialled on 24 November 2000 and signed by Exchange of Letters in Luxembourg on 9 April 2001. Article 27(4) of the Stabilisation and Association Agreement provides that the trade arrangements to apply to wine and spirit products remain to be defined.
(2) In accordance with the Directives adopted by the Council on 11 March 1998, the Commission and the former Yugoslav Republic of Macedonia reached agreement on 20 June 2001 on new reciprocal trade concessions for certain wines and on the reciprocal recognition, protection and control of wine names and spirits designations. In order to ensure consistency within the overall stabilisation process, the results of these negotiations should be integrated into the framework of the Stabilisation and Association Agreement in the form of an Additional Protocol.
(3) Provisions to adopt the implementing Regulations on preferential trade concessions provided for certain wines should be made by the Commission, assisted by the Customs Code Committee set up by Article 248a of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code(1), notwithstanding Article 62 of Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine(2). The Commission shall make the necessary amendments and technical adaptations to the implementing Regulations which might result from new preferential agreements, protocols, Exchanges of Letters or other acts concluded between the European Community and the former Yugoslav Republic of Macedonia, or which are necessary following the changes to the Combined Nomenclature and TARIC codes.
(4) In order to facilitate the implementation of certain provisions of the Protocol, the Commission should be authorised to approve, on behalf of the Community, decisions amending the lists and the Protocols to the Agreement on the reciprocal recognition, protection and control of wine names (Annex II to the Protocol) and the Agreement on the reciprocal recognition, protection and control of designations of spirits and aromatised drinks (Annex III to the Protocol). In adopting these acts, the Commission should be assisted by the Management Committee for Wine set up by Article 74 of Regulation (EC) No 1493/1999, on the one hand, and by the Implementation Committee for Spirit Drinks set up by Article 13 of Council Regulation (EEC) No 1576/89 of 29 May 1989 laying down general rules on the definition, description and presentation of spirit drinks(3) and the Implementation Committee for Aromatised Wines set up by Article 12 of Council Regulation (EEC) No 1601/1991 of 10 June 1991 laying down general rules on the definition, description and presentation of aromatised wines, aromatised wine-based drinks and aromatised wine-product cocktails(4), on the other hand.
(5) The measures necessary for the implementation of this Decision should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(5),
HAS DECIDED AS FOLLOWS:
Article 1
The Additional Protocol adjusting the trade aspects of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, to take account of the outcome of the negotiations between the parties on reciprocal preferential concessions for certain wines, the reciprocal recognition, protection and control of wine names and the reciprocal recognition, protection and control of designations for spirits and aromatised drinks (hereinafter referred to as "the Protocol"), is hereby approved on behalf of the Community.
The text of the Protocol is attached to this Decision.
Article 2
1. The President of the Council is hereby authorised to designate the person empowered to sign the Protocol on behalf of the Community, in order to express the consent of the Community to be bound.
2. The President of the Council shall, on behalf of the Community, make the notification of approval provided for in Article 3 of the Protocol.
Article 3
Provisions for the application of the tariff quotas for certain wines provided in Annex I to the Protocol, as well as amendments and technical adaptations to the implementing Regulations necessary following changes to the Combined Nomenclature codes and to the TARIC subdivisions or arising from the conclusion of new agreements, protocols, Exchanges of Letters or other acts between the Community and the former Yugoslav Republic of Macedonia, shall be adopted by the Commission according to the procedure set out in Article 4(2) of this Decision, notwithstanding Article 62 of Regulation (EC) No 1493/1999.
Article 4
1. The Commission shall be assisted by the Customs Code Committee set up by Article 248a of Regulation (EEC) No 2913/92.
2. Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC shall apply.
The period provided for in Article 4(3) of Decision 1999/468/EC shall be set at three months.
3. The Committee shall adopt its rules of procedure.
Article 5
1. For the purposes of the decisions of the Stabilisation and Association Committee concerning the establishment of lists of protected names provided for in Article 4(7) and Article 14(2)(a) of the Agreement on the reciprocal recognition, protection and control of wine names, the Community's position shall be established by the Council acting by qualified majority on a proposal from the Commission.
2. Without prejudice to paragraph 1, for the purposes of Articles 13 and 14 of the Agreement on the reciprocal recognition, protection and control of wine names, the Commission shall conclude the necessary acts amending the lists and the Protocol to the Agreement according to the procedure set out in Article 6(2) of this Decision. For all other cases coming under the above Articles, the Community position shall be established and presented by the Commission.
Article 6
1. The Commission shall be assisted by the Management Committee for Wine set up by Article 74 of Regulation (EC) No 1493/1999.
2. Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC shall apply.
The period provided for in Article 4(3) of Decision 1999/468/EC shall be set at one month.
3. The Committee shall adopt its rules of procedure.
Article 7
1. For the purposes of the decisions of the Stabilisation and Association Committee concerning the establishment of lists of protected designations provided for in Article 4(5) and Article 14(2)(a) of the Agreement on the reciprocal recognition, protection and control of designations for spirits and aromatised drinks, the Community's position shall be established by the Council acting by qualified majority on a proposal from the Commission.
2. Without prejudice to paragraph 1, for the purposes of Articles 13 and 14 of the Agreement on the reciprocal recognition, protection and control of designations for spirits and aromatised drinks, the Commission shall conclude the necessary acts amending the lists and the Protocol to the Agreement according to the procedure set out in Article 8(2) of this Decision. For all other cases coming under the above Articles, the Community position shall be established and presented by the Commission.
Article 8
1. The Commission shall be assisted by the Implementation Committee for Spirit Drinks instituted by Article 13 of Regulation (EEC) No 1576/89 and by the Implementation Committee for Aromatised Wines, Aromatised Wine-Based Drinks and Aromatised Wine-Product Cocktails set up by Article 12 of Regulation (EEC) No 1601/91.
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 one month.
3. The Committees shall adopt their rules of procedure.
Article 9
This Decision shall be published in the Official Journal of the European Communities.
Done at Brussels, 3 December 2001. | [
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Commission Regulation (EC) No 2019/2001
of 15 October 2001
concerning the issue of A licences for the import of garlic
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 1047/2001 of 30 May 2001 introducing a system of import licences and certificates of origin and establishing the method for managing the tariff quotas for garlic imported from third countries(1), as last amended by Regulation (EC) No 1865/2001(2),
Whereas:
(1) Article 8(1) of Regulation (EC) No 1047/2001 provides that if quantities covered by applications for A licences exceed the quantities available, the Commission is to fix a simple reduction percentage and suspend the issue of such licences covered by subsequent applications.
(2) Quantities applied for on 8 and 9 October 2001 under Article 4(1) of Regulation (EC) No 1047/2001 for products originating in all third countries other than China and Argentina exceed the quantities available. The extent to which A licences can be issued, and whether the issue of those licences should be suspended for any subsequent applications, should therefore be determined,
HAS ADOPTED THIS REGULATION:
Article 1
A import licences covered by applications under Article 1(1), of Regulation (EC) No 1047/2001 for products originating in all third countries other than China and Argentina on 8 and 9 October 2001 and forwarded to the Commission on 10 October 2001 shall be issued, with the entry referred to in Article 1(2) of that Regulation, at the rate of:
- 21,396 % of the quantity applied for, for traditional importers,
- 4,719 % of the quantity applied for, for new importers.
Article 2
The issue of A import licences relating to the quarter running from 1 December 2001 to 28 February 2002 covered by applications under Regulation (EC) No 1047/2001 for products originating in all third countries other than China and Argentina is hereby suspended for applications lodged after 9 October 2001. Applications for the quarter running from 1 March 2002 to 31 May 2002 may be lodged from 14 January 2002.
Article 3
This Regulation shall enter into force on 16 October 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 October 2001. | [
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COMMISSION REGULATION (EC) No 232/2007
of 2 March 2007
fixing the minimum selling price for butter for the 58th individual invitation to tender issued under the standing invitation to tender referred to in Regulation (EC) No 2771/1999
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products (1), and in particular Article 10(c) thereof,
Whereas:
(1)
Pursuant to Article 21 of Commission Regulation (EC) No 2771/1999 of 16 December 1999 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in butter and cream (2), intervention agencies have put up for sale by standing invitation to tender certain quantities of butter held by them.
(2)
In the light of the tenders received in response to each individual invitation to tender a minimum selling price shall be fixed or a decision shall be taken to make no award, in accordance with Article 24a of Regulation (EC) No 2771/1999.
(3)
In the light of the tenders received, a minimum selling price should be fixed.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
For the 58th individual invitation to tender pursuant to Regulation (EC) No 2771/1999, in respect of which the time limit for the submission of tenders expired on 27 February 2007, the minimum selling price for butter is fixed at 237,00 EUR/100 kg.
Article 2
This Regulation shall enter into force on 3 March 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 March 2007. | [
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*****
COMMISSION DECISION
of 7 May 1984
establishing that the apparatus described as 'Ortec - Planar totally depleted Silicon Surface Barrier Detectors, model: D 035-050-15, D 030-150-50, D 015-050-100, D 030-300-100 - Totally depleted Silicon Surface Barrier Detectors, model: B 027-450-200, B 027-450-400, B 018-050-300, B 027-450-300' may be imported free of Common Customs Tariff duties
(84/264/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1798/75 of 10 July 1975 on the importation free of Common Customs Tariff duties of educational, scientific and cultural materials (1), as last amended by Regulation (EEC) No 608/82 (2),
Having regard to Commission Regulation (EEC) No 2784/79 of 12 December 1979 laying down provisions for the implementation of Regulation (EEC) No 1798/75 (3), and in particular Article 7 thereof,
Whereas, by letter dated 1 November 1983, the Netherlands requested the Commission to invoke the procedure provided for in Article 7 of Regulation (EEC) No 2784/79 in order to determine whether or not the apparatus described as 'Ortec - Planar totally depleted Silicon Surface Barrier Detectors, model: D 035-050-15, D 030-150-50, D 015-050-100, D 030-300-100 - Totally depleted Silicon Surface Barrier Detectors, model: B 027-450-200, B 027-450-400, B 018-050-300, B 027-450-300', ordered on 9 October 1982 and intended to be used in nuclear physics experiments with beams of particles from a variable-energy cyclotron, should be considered to be scientific apparatus and, where the reply is in the affirmative, whether apparatus of equivalent scientific value are currently being manufactured in the Community;
Whereas, in accordance with the provisions of Article 7 (5) of Regulation (EEC) No 2784/79, a group of experts composed of representatives of all the Member States met on 11 April 1984 within the framework of the Committee on Duty-Free Arrangements to examine the matter;
Whereas this examination showed that the apparatus in question are detectors; whereas their objective technical characteristics, such as the precision of the answer in the field of the particles energy, and the use to which they are put make them specially suited to scientific research; whereas, moreover, apparatus of the same kind are principally used for scientific activities; whereas they must therefore be considered to be scientific apparatus;
Whereas, on the basis of information received from Member States, apparatus of equivalent scientific value capable of use for the same purpose are not currently manufactured in the Community; whereas, therefore, duty-free admission of these apparatus is justified,
HAS ADOPTED THIS DECISION:
Article 1
The apparatus described as 'Ortec - Planar totally depleted Silicon Surface Barrier Detectors, model: D 035-050-15, D 030-150-50, D 015-050-100, D 030-300-100 - Totally depleted Silicon Surface Barrier Detectors, model: B 027-450-200, B 027-450-400, B 018-050-300, B 027-450-300', which are the subject of an application by the Netherlands of 1 November 1983, may be imported free of Common Customs Tariff duties.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 7 May 1984. | [
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*****
COMMISSION REGULATION (EEC) No 1181/87
of 29 April 1987
amending Regulation (EEC) No 2220/85 laying down common detailed rules for the application of the system of securities for agricultural products
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2727/75 of 29 October 1975 on the common organization of the market in cereals (1), as last amended by Regulation (EEC) No 1579/86 (2), and in particular Articles 7 (5), 8 (4), 12 (2), 15 (3) and (5), and 16 (6) thereof, and the corresponding provisions of the other Regulations on the common organization of the market in respect of agricultural products, and also to other provisions in the Regulations on the common organization of markets which, when applied in practice, provide for a security,
Having regard to Council Regulation (EEC) No 525/77 of 14 March 1977 establishing a system of production aid for tinned pineapple (3), as last amended by Regulation (EEC) No 1699/85 (4), and in particular Article 8 thereof,
Having regard to Council Regulation (EEC) No 1079/77 of 17 May 1977 on a co-responsibility levy and on measures for expanding the markets in milk and milk products (5), as last amended by Regulation (EEC) No 1338/86 (6), and in particular Article 3 thereof,
Having regard to Council Regulation (EEC) No 2169/81 of 27 July 1981 laying down the general rules for the system of aid for cotton (7), as last amended by Regulation (EEC) No 3128/86 (8), and in particular Article 5 (3) thereof,
Having regard to Council Regulation (EEC) No 1431/82 of 18 May 1982 laying down special measures for peas, field beans and sweet lupins (9), as last amended by Regulation (EEC) No 3127/86 (10), and in particular Article 3 (5) thereof,
Having regard to Council Regulation (EEC) No 1677/85 of 11 June 1985 on monetary compensatory amounts in agriculture (11), as last amended by Regulation (EEC) No 90/87 (12) and in particular Article 12 thereof,
Whereas Commission Regulation (EEC) No 2220/85 (13) provides that a proportion of a security be forfeit corresponding to the importance of the requirement not observed; whereas the significance of breaching a subordinate requirement can be assimilated to the significance of late production of proof that all primary requirements have been met; whereas, therefore, the consequences should in both cases be the same; whereas Regulation (EEC) No 2220/85 should be amended accordingly;
Whereas, in order to avoid doubt, each context in which it is relevant to consider whether or not a case of force majeure has arisen should be specified;
Whereas certain amendments clarifying the text of Regulation (EEC) No 2220/85 and amending the field of application of certain terms should be made in the light of experience; whereas at the time an error in the Dutch text should be corrected;
Whereas the measures provided for in this Regulation are in accordance with the opinion of ail the relevant Management Committees,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2220/85 is hereby amended as follows:
1. Article 19 is amended as follows:
(a) In paragraph 1 in the Dutch version, 'waarborg' is replaced by 'zekerheid'.
(b) Paragraph 2 is replaced by the following:
'2. Once the deadline for showing final entitlement to the sum granted has passed without production of evidence of entitlement, the competent authority shall immediately follow the procedure in Article 29.
The deadline may be postponed in a case of force majeure.
However, where Community legislation so provides, evidence may still be produced after that date against partial repayment of the security.'
2. The following paragraph 6 is added to Article 20:
'6. For the purposes of this Title "the relevant part of the sum secured" shall mean the part of the sum secured corresponding to the quantity for which a requirement has been breached.'
3. Paragraphs 1 and 2 of Article 22 are replaced by the following:
'1. A security shall be forfeit in full for the quantity for which a primary requirement is not fulfilled, unless force majeure prevented fulfilment.
2. A primary requirement shall be considered to have been breached if the relevant evidence is not produced within the time limit set for the production of that evidence unless force majeure prevented produciton of such evidence within that time limit. The procedure in Article 29 for recovering the sum forfeited shall immediately be followed.'
4. The following is added to Article 22 (4):
'. . . unless force majeure prevented production of this evidence within that period.'
5. Article 24 (1) is replaced by the following:
'1. Failure to fulfil one or more subordinate requirements shall lead to forfeiture of 15 % of the relevant part of the sum secured unless force majeure prevented fulfilment.'
6. Article 25 is replaced by the following:
'Article 25
If evidence is produced that all primary requirements have been observed but both a secondary and a subordinate requirement have been breached, Articles 23 and 24 shall apply and the total sum to be forfeit shall be the sum forfeit in accordance with Article 23 plus 15 % of the relevant part of the sum secured.'
7. The following heading is inserted after Article 26:
'TITLE VI
General Provisions'
8. The following heading is deleted after Article 28:
'TITLE VI
General Provisions'
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
Article 1 (6) shall apply only to securities pledged after the entry into force of this Regulation.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 April 1987. | [
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COMMISSION DECISION
of 4 May 2007
lifting prohibitions on the movement of certain animal products on the island of Cyprus under Council Regulation (EC) No 866/2004 and laying down conditions for the movement of those products
(notified under document number C(2007) 1911)
(Text with EEA relevance)
(2007/330/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 866/2004 of 29 April 2004 on a regime under Article 2 of Protocol 10 to the Act of Accession (1), and in particular Article 4(9) thereof,
Whereas:
(1)
Pending the reunification of Cyprus, Article 1(1) of Protocol 10 to the Act of Accession suspends the application of the acquis in the areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control.
(2)
For public and animal health reasons, Regulation (EC) No 866/2004 prohibits the movement of animal products across the line between those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control, to areas in which it does.
(3)
As a first step and in the light of production in areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control, prohibitions can be lifted for fresh fish and honey.
(4)
It is necessary to ensure that public and animal health are not compromised by the lifting of the prohibitions. It is also necessary to guarantee food safety in accordance with Commission Regulation (EC) No 1480/2004 (2) which lays down specific rules concerning goods arriving from the areas of the Republic of Cyprus not under the effective control of the Government of the Republic of Cyprus, in the areas of the Republic of Cyprus in which the Government exercises effective control. Accordingly, trade in the products concerned should be subject to certain conditions.
(5)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
The prohibitions under Article 4(9) of Regulation (EC) No 866/2004 on the movement of animal products across the line between the areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control and the areas in which it does, shall no longer apply in respect of the animal products referred to in Annexes I and II to this Decision.
Trade in those products shall be subject to the conditions set out in the respective Annex.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 4 May 2007. | [
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COUNCIL DECISION of 22 December 1995 on the provisional application of certain bilateral agreements between the European Community and certain third countries on trade in textile products (Belarus, Hungary, Poland, Romania and Ukraine) (96/224/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, first sentence, thereof,
Having regard to the proposal from the Commission,
Whereas the Commission has negotiated on behalf of the Community bilateral agreements to amend and, where appropriate, renew the existing bilateral agreements and protocols on trade in textile products with certain third countries;
Whereas these bilateral agreements should be applied on a provisional basis from 1 January 1996, pending the completion of procedures required for their conclusion, subject to reciprocal provisonal application by the partner countries,
HAS DECIDED AS FOLLOWS:
Sole Article
The bilateral agreements listed in the Annex to this Decision, shall be applied on a provisional basis from 1 January 1996, pending their formal conclusion, subject to reciprocal provisional application by the partner countries.
The texts of the initialled agreements are attached to this Decision.
Done at Brussels, 22 December 1995. | [
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COMMISSION REGULATION (EC) No 107/2009
of 4 February 2009
implementing Directive 2005/32/EC of the European Parliament and of the Council with regard to ecodesign requirements for simple set-top boxes
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Directive 2005/32/EC of the European Parliament and of the Council of 6 July 2005 establishing a framework for the setting of ecodesign requirements for energy-using products and amending Council Directive 92/42/EEC and Directives 96/57/EC and 2000/55/EC of the European Parliament and of the Council (1), and in particular Article 15(1) thereof,
After consulting the Ecodesign Consultation Forum,
Whereas:
(1)
Under Directive 2005/32/EC ecodesign requirements should be set by the Commission for energy-using products representing significant volumes of sales and trade, having a significant environmental impact and presenting significant potential for improvement in terms of their environmental impact without entailing excessive costs.
(2)
Article 16(2) first indent of Directive 2005/32/EC provides that in accordance with the procedure referred to in Article 19(3) and the criteria set out in Article 15(2), and after consulting the Consultation Forum, the Commission will as appropriate introduce implementing measures targeting consumer electronics.
(3)
The Commission has carried out a preparatory study which analysed the technical, environmental and economic aspects of simple set-top boxes (hereinafter SSTBs). The study has been developed together with stakeholders and interested parties from the EU and third countries, and the results have been made publicly available.
(4)
It has been stated in the preparatory study that the number of SSTBs placed on the Community market will grow from 28 million in 2008 to 56 million in 2014, and the annual electricity consumption of SSTBs will grow from 6 TWh in 2010 to 14 TWh in 2014, but that the electricity consumption of SSTBs can be significantly reduced in a cost effective manner.
(5)
The electricity consumption of SSTBs can be reduced by implementing existing non-proprietary design solutions, which, despite being cost-effective, are not introduced onto the market in a satisfactory way because end-users are unaware of the running costs of SSTBs, providing manufacturers with no incentive to integrate such solutions to reduced power consumption during use.
(6)
Ecodesign requirements for the power consumption of SSTBs should be set with a view to harmonising ecodesign requirements for these devices throughout the Community and contributing to the functioning of the internal market and to the improvement of the environmental performance of these devices.
(7)
This Regulation should increase the market penetration of technologies yielding improved energy efficiency of SSTBs, leading to estimated annual energy savings of 9 TWh in 2014, compared to a business as usual scenario.
(8)
The ecodesign requirements should not have a negative impact on the functionality of the product and should not negatively affect health, safety and the environment.
(9)
A staged entry into force of the ecodesign requirements should provide an appropriate timeframe for manufacturers to redesign products. The timing of the stages should be set in such a way that negative impacts related to the functionalities of equipment on the market are avoided and cost impacts for manufacturers, in particular SMEs, are taken into account, while ensuring timely achievement of the policy objectives.
(10)
Measurements of power consumption should be performed taking into account the generally recognised state of the art; manufacturers may apply harmonised standards established in accordance with Article 9 of Directive 2005/32/EC.
(11)
The requirements laid down in this Regulation should prevail over the requirements laid down in Commission Regulation (EC) No 1275/2008 implementing Directive 2005/32/EC with regard to ecodesign requirements for the standby and off mode power consumption of electrical and electronic household and office equipment (2).
(12)
Pursuant to Article 8(2) of Directive 2005/32/EC, this Regulation should specify that the applicable conformity assessment procedures are the internal design control set out in Annex IV to Directive 2005/32/EC and the management system set out in Annex V to Directive 2005/32/EC.
(13)
In order to facilitate compliance checks manufacturers should be requested to provide information in the technical documentation referred to in Annexes IV and V of Directive 2005/32/EC in so far as it relates to the requirements laid down in this implementing measure.
(14)
Benchmarks for currently available SSTBs with low power consumption should be identified. The availability of a ‘0 W-mode’ on SSTBs could support consumers′ behaviour and decisions to reduce unnecessary loss of energy. Benchmarks help to ensure wide availability and easy access to information, in particular for SMEs and very small firms, which further facilitates the integration of best design technologies for reducing the energy consumption of SSTBs.
(15)
The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 19(1) of Directive 2005/32/EC,
HAS ADOPTED THIS REGULATION:
Article 1
Subject matter and scope
This Regulation establishes ecodesign requirements for simple set-top boxes.
Article 2
Definitions
For the purposes of this Regulation, the definitions set out in Directive 2005/32/EC shall apply. The following definitions shall also apply:
1.
‘Simple set-top box’ (SSTB) means a stand-alone device which, irrespectively of the interfaces used,
(a)
has the primary function of converting standard-definition (SD) or high-definition (HD), free-to-air digital broadcast signals to analogue broadcast signals suitable for analogue television or radio;
(b)
has no ‘conditional access’ (CA) function;
(c)
offers no recording function based on removable media in a standard library format.
A SSTB can be equipped with the following additional functions and/or components which do not constitute a minimum specification of an SSTB:
(a)
time-shift and recording functions using an integrated hard disk;
(b)
conversion of HD broadcast signal reception to HD or SD video output;
(c)
second tuner.
2.
‘Standby mode(s)’ means a condition where the equipment is connected to the mains power source, depends on energy input from the mains power source to work as intended and provides only the following functions, which may persist for an indefinite time:
(a)
reactivation function, or reactivation function and only an indication of enabled reactivation function; and/or
(b)
information or status display.
3.
‘Reactivation function’ means a function enabling the activation of other modes, including active mode, by remote switch, including remote control, internal sensor, timer to a condition providing additional functions, including the main function.
4.
‘Information or status display’ means a continuous function providing information or indicating the status of the equipment in a display, including clocks.
5.
‘Active mode(s)’ means a condition in which the equipment is connected to the mains power source and at least one of the main function(s) providing the intended service of the equipment has been activated.
6.
‘Automatic power down’ means a function which switches the active mode of an SSTB into standby mode after a period in the active mode following the last user interaction and/or channel change.
7.
‘Second tuner’ means a part of the SSTB available for independent recording while allowing to watch a different programme.
8.
‘Conditional access’ (CA) means a provider-controlled broadcasting service requiring a market subscription television service.
Article 3
Ecodesign requirements
The ecodesign requirements for SSTBs are set out in Annex I.
Article 4
Relationship with Regulation (EC) No 1275/2008
The requirements laid down in this Regulation shall prevail over the requirements laid down in Regulation (EC) No 1275/2008.
Article 5
Conformity assessment
The procedure for assessing conformity referred to in Article 8(2) of Directive 2005/32/EC shall be the internal design control system set out in Annex IV to Directive 2005/32/EC or the management system set out in Annex V to Directive 2005/32/EC.
Article 6
Verification procedure for market surveillance purposes
Surveillance checks shall be carried out in accordance with the verification procedure set out in Annex II.
Article 7
Benchmarks
The indicative benchmarks for best-performing products and technology currently available on the market are identified in Annex III.
Article 8
Revision
No later than five years after the entry into force of this Regulation the Commission shall review it in the light of technological progress and present the result of this review to the Consultation Forum.
Article 9
Entry into force
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
Point 1 of Annex I shall apply as from one year after the date referred to in the first paragraph.
Point 2 of Annex I shall apply as from three years after the date referred to in the first paragraph.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 4 February 2009. | [
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COMMISSION REGULATION (EC) No 2606/1999
of 9 December 1999
determining the revised estimate of production of unginned cotton for the 1999/2000 marketing year and the relevant percentage increase
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Act of Accession of Greece, and in particular Protocol 4 on cotton, as last amended by Council Regulation (EC) No 1553/95(1),
Having regard to Council Regulation (EC) No 1554/95 of 29 June 1995 laying down general rules for the system of aid for cotton and repealing Regulation (EEC) No 2169/81(2), as last amended by Regulation (EC) No 1419/98(3), and in particular Article 8(2) thereof,
Whereas:
(1) In accordance with Article 8(1) of Regulation (EC) No 1554/95, Commission Regulation (EC) No 1844/98(4) lays down the estimated production of unginned cotton for the 1998/1999 marketing year.
(2) Article 8(2) of Regulation (EC) No 1554/95 lays down that the revised estimate of production of unginned cotton and the percentage increase used in calculating the advance applicable from 16 December of the current marketing year must be determined by 1 December of each marketing year, account being taken of the progress of the harvest. Those figures should be fixed for the 1999/2000 marketing year as indicated below on the basis of the information available. In order to ensure that the new level of advance may be applied from the deadline laid down, this Regulation should enter into force on the day following its publication.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Flax and Hemp,
HAS ADOPTED THIS REGULATION:
Article 1
1. For the 1999/2000 marketing year, the revised estimate of production of unginned cotton is:
- 1280000 t for Greece,
- 390472 t for Spain,
- 67 t for other Member States.
2. For the 1999/2000 marketing year, the percentage increase referred to in the second subparagraph of Article 5(3a) of Regulation (EC) No 1554/95 shall be 7,5 %.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 December 1999. | [
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COMMISSION DECISION of 13 November 1996 laying down the special conditions for the approval of establishments situated in wholesale markets (Text with EEA relevance) (96/658/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 64/433/EEC of 26 June 1964 on health conditions for the production and marketing of fresh meat (1), as last amended by Directive 95/23/EC (2), and in particular Article 13, third indent,
Having regard to Council Directive 71/118/EEC of 15 February 1971 on health problems affecting the production and placing on the market of fresh poultry meat (3), as last amended by the Act of Accession of Austria, Finland and Sweden of 1994, and in particular Article 20, first indent,
Having regard to Council Directive 77/99/EEC of 21 December 1976 on health problems affecting intra-Community trade in meat products (4), as last amended by Directive 95/68/EC (5), and in particular Article 17, first indent,
Whereas a long tradition of wholesale markets for meat and meat products exists in the Community;
Whereas establishments situated in wholesale markets to which Directives 64/433/EEC, 17/118/EEC and 77/99/EEC apply, have special technical characteristics; these establishments are using certain rooms in common, for example meat cutting rooms;
Whereas it is necessary to take these technical circumstances into account in order to fix conditions for the approval of these establishments situated in wholesale markets;
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
This Decision lays down the special conditions for the approval of establishments according to Council Directives 64/433/EEC, 71/118/EEC and 77/99/EEC situated in wholesale markets.
Article 2
For the purposes of this Decision 'wholesale market` means: a market comprising a number of separate establishments which may share common facilities, including common areas in which fresh meat or fresh poultrymeat are cut, stored, displayed and put on the market or meat products are produced, stored, displayed and put on the market. A wholesale market may be attached to other approved establishments.
Article 3
1. An establishment situated in a wholesale market cannot be placed on the list of approved establishments provided for in Article 10 (1) of Directive 64/433/EEC unless it complies with the conditions of Annex I.
2. An establishment situated in a wholesale market cannot be placed on the list of approved establishments provided for in Article 6 (1) of Directive 71/118/EEC unless it complies with the conditions of Annex II.
3. An establishment situated in a wholesale market cannot be placed on the list of approved establishments provided for in Article 8 (1) of Directive 77/99/EEC unless it complies with the conditions of Annex III.
Article 4
1. The establishments or combinations of establishments operating in a wholesale market can receive a veterinary approval number.
2. The veterinary approval number mentioned in paragraph 1 can be temporarily suspended or withdrawn by the national competent authority if an establishment or combination of establishments no longer fulfils the conditions set out in Community rules. This suspension or withdrawal does not necessarily affect the approval of other establishments of the wholesale market.
Article 5
This decision shall apply from 1 January 1997.
Article 6
This Decision is addressed to the Member States.
Done at Brussels, 13 November 1996. | [
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Commission Decision
of 28 January 2002
recognising the fully operational character of the German database for bovine animals
(notified under document number C(2002) 302)
(Only the German text is authentic)
(Text with EEA relevance)
(2002/67/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 1760/2000 of the European Parliament and of the Council of 17 July 2000 establishing a system for the identification and registration of bovine animals and regarding labelling of beef and beef products and repealing Council Regulation (EC) No 820/97(1), and in particular Article 6(3) thereof,
Having regard to the request submitted by Germany,
Whereas:
(1) On 8 September 1999 the German authorities submitted to the Commission a request asking for recognition of the fully operational character of their database that forms part of the German system for the identification and registration of bovine animals.
(2) The German request was accompanied by appropriate information that was updated on 15 February 2001.
(3) The German authorities have undertaken the commitment to improve the reliability of this database ensuring in particular that (i) further measures, including control measures, shall be taken to ensure observation of the delay of seven days at maximum for notification of movements, births and deaths, (ii) all kinds of movements are recorded in the database, and the data are monitored, (iii) the existing measures for promptly correction of any errors or deficiencies which could be detected automatically or following the appropriate on-the-spot inspections, are reinforced, (iv) further measures shall be taken to ensure compliance on the national territory with Commission Regulation (EC) No 2630/97; the German authorities have undertaken the commitment to implement those improvement measures at the latest by 30 June 2001. The German authorities have confirmed the implementation of the abovementioned measures.
(4) In view of the above, it is appropriate to recognise the fully operational character of the database for bovine animals,
HAS ADOPTED THIS DECISION:
Article 1
The German database for bovine animals is recognised as fully operational.
Article 2
This Decision is addressed to Germany.
Done at Brussels, 28 January 2002. | [
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Commission Decision
of 3 April 2001
amending for the third time Decision 2001/208/EC concerning certain protection measures with regard to foot-and-mouth disease in France
(notified under document number C(2001) 1052)
(Text with EEA relevance)
(2001/269/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Decision 2001/208/EC(1) concerning certain protection measures with regard to foot-and-mouth disease in France, as last amended by Decision 2001/250/EC(2), and in particular Article 13a 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(3), as last amended by Directive 92/118/EEC(4), and in particular Article 10 thereof,
Having regard to Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market(5), as last amended by Directive 92/118/EEC, and in particular Article 9 thereof,
Whereas:
(1) Following the reports of new outbreaks of foot-and-mouth disease in France the Commission by adopting Decision 2001/250/EC extended and prolonged the measures introduced by Decision 2001/208/EC concerning certain protection measures with regard to foot-and-mouth disease in France.
(2) The geographic scope for the areas subjected to the measures provided for in this Decision should not be maintained any longer than necessary under objectively defined circumstances, and therefore, in accordance with Article 13a of the Decision, the measures applicable in areas in Annex I should be limited to certain departments as of 3 April 2001 by Commission Decision.
(3) In accordance with this same Article, France has notified the Commission on 2 April that no further outbreaks of foot and mouth disease were reported since 30 March 2001, and that all clinical examinations and laboratory tests undertaken in the relevant holdings had given negative results.
(4) The Commission informed the other Member States immediately by fax of the need to adapt their measures according to the new situation.
(5) The situation shall be reviewed at the meeting of the Standing Veterinary Committee scheduled for 4 April 2001 and the measures adapted where necessary,
HAS ADOPTED THIS DECISION:
Article 1
Commission Decision 2001/208/EC is amended as follows:
1. The date referred to in Article 2(2)(a), Article 3(3)(a) and (c), Article 5(2)(a) and (3)(b), Article 6(3), Article 7(2) and Article 8(1) is replaced by "25 February 2001".
2. In Annex I the words "All departments of mainland France" are replaced by "Seine-et-Marne, Seine-Saint-Denis and Val d'Oise".
3. In Annex II the words " All departments of mainland France" are replaced by "All departments of mainland France except those in Annex I".
Article 2
This Decision is addressed to the Member States. It shall apply with effect from 3 April 2001.
Done at Brussels, 3 April 2001. | [
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COUNCIL REGULATION (EEC) No 1515/91 of 31 May 1991 opening and providing for the administration of Community tariff quotas for frozen hake fillets and for processing work in respect of certain textile products under Community outward processing arrangements
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas the Community has undertaken, within the framework of its external relations, to open each year for periods of, respectively, 1 July to 31 December and 1 September to 31 August of the following year, Community tariff quotas for 5 000 tonnes at 10 % duty for frozen fillets of hake presented in the form of industrial blocks with bones ('standard') and, after various adaptations, a duty-free Community tariff quota for ECU 1 870 000 of added value for various kinds of processing work in respect of certain textile products under outward processing arrangements; whereas the tariff quotas in question should accordingly be opened for the agreed periods and in accordance with the agreed elements;
Whereas provision should be made in particular to ensure equal and continuous access for those concerned to the quotas in question and consistent application, until the quotas are exhausted, of the rate prescribed for the said quotas to all goods which are imported or re-imported into any of the Member States and which meet the prescribed conditions; whereas it is appropriate to take the necessary measures to ensure efficient Community administration of these tariff quotas while offering the Member States the opportunity to draw from the quota volumes the necessary quantities corresponding to actual imports or re-imports;
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 the shares levied by that economic union may be carried out by any one of its members,
HAS ADOPTED THIS REGULATION: Article 1
1. From 1 July to 31 December 1991 the customs duty applicable to the import of the products listed below shall be suspended at the levels and within the limit of the Community tariff quota shown herewith:
Order No CN code
(1) Description Amount
of quota
(tonnes) Quota duty
(%) 09.0037 ex 0304 20 57 Frozen fillets of hake (Merluccius spp.) presented in the form of industrial blocks with bones ('standard') 5 000 10
(1) Taric codes 0304 20 57 * 31 and 0304 20 57 * 39.
2. Where the Community has fixed a reference price for the products or categories of products concerned, imports of fillets of hake shall benefit from the relevant quota fixed in paragraph 1 only if the free-at-frontier price determined by the Member States in accordance with Article 21 of Regulation (EEC) No 3796/81 (1), as last amended by Regulation (EEC) No 2886/89 (2), is at least equal to the reference price.
3. Imports of these products shall not be charged against this tariff quota if they are already eligible for an equal or lower customs duty under other preferential tariff treatment. Article 2
1. From 1 September 1991 to 31 August 1992 the customs duties applicable to re-imports of the following products shall be totally suspended within the limit of the Community tariff quota shown herewith:
Order No CN code Description Volume of
tariff quota 09.2501 Goods resulting from processing work as provided for in the arrangement with Switzerland on processing traffic in textiles as follows: (a) processing work on woven fabrics falling within Chapters 50 to 55 and CN code 5809 00 00 (b) twisting or throwing, cabling and texturizing (whether or not combined with other processing work) of yarns falling within Chapters 50 to 55 and CN code 5605 00 00 (c) processing work on products falling within the following CN codes: 5606 00 Gimped yarn, and strip and the like of code 5404 or 5405, gimped (other than those of code 5605 and gimped horsehair yarn): chenille yarn (including flock chenille yarn); loop wale-yarn: Other: 5606 00 91 Gimped yarn 5606 00 99 Other 5801 Woven pile fabrics and chenille fabrics, other than fabrics of code 5802 or 5806: 5801 10 00 Of wool or fine animal hair Of cotton: 5801 22 00 Cut corduroy 5801 23 00 Other weft pile fabrics 5801 24 00 Warp pile fabrics, épinglé (uncut) 5801 25 00 Warp pile fabrics, cut 5801 26 00 Chenille fabrics ECU 1 870 000 of value added Of man-made fibres: 5801 32 00 Cut corduroy 5801 33 00 Other weft pile fabrics 5801 34 00 Warp pile fabrics, épinglé (uncut) 5801 35 00 Warp pile fabrics, cut 5801 36 00 Chenille fabrics 5801 90 Of other textile materials: 5801 90 10 Of flax 5801 90 90 Other 5802 Terry towelling and similar woven terry fabrics, other than narrow fabrics of code 5806; tufted textile fabrics, other than products of code 5703 5804 Tulles and other net fabrics, not including woven, knitted or crocheted fabrics; lace in the piece, in strips or in motifs 5806 Narrow woven fabrics, other than goods of code 5807; narrow fabrics consisting of warp without weft assembled by means of an adhesive (bolducs) 5808 Braids in the piece; ornamental trimmings in the piece, without embroidery other than knitted or crocheted; tassels, pompoms and similar articles 6001 Pile fabrics, including 'long pile' fabrics and terry fabrics, knitted or crocheted 6002 Other knitted or crocheted fabrics
2. For the purposes of this Article:
(a) 'processing work' shall mean:
- for the purposes of paragraph 1 (a) and (c) appearing in the table: bleaching, dyeing, printing, flocking, impregnating, dressing and other work which changes the appearance or quality of the goods, without however changing their nature,
- for the purposes of paragraph 1 (b) appearing in the table: twisting or throwing, cabling and texturizing, whether or not combined with reeling, dyeing or other work which changes the appearance, quality or finish of the goods, without however changing their nature;
(b) 'value added' shall mean the difference between the value for customs purposes as defined in Community regulations on this subject at the time of re-importation and the value for customs purposes as it would be if the products were re-imported in the state in which they were exported.
3. Re-imports of products, resulting from this processing work may not be charged to the tariff quota if they are already free of customs duties under other preferential tariff arrangements. Article 3
Within the limits of these tariff quotas, the Kingdom of Spain and the Portuguese Republic shall apply customs duties calculated in accordance with the provisions of the Act of Accession and, where appropriate, of the Protocols concluded by reason of that accession. Article 4
The tariff quota referred to in Articles 1 and 2 shall be administered by the Commission, which may take any appropriate measure with a view to ensuring the efficient administration thereof. Article 5
If an importer presents in a Member State an entry for release for free circulation, including a request for preferential benefit for a product covered by this Regulation, and if this declaration is accepted by the customs authorities, the Member State concerned shall draw, from the tariff quota, by means of notification to the Commission, a quantity corresponding to these needs.
The request for drawing, with the indication of the date of acceptance of the said declarations, must be communicated to the Commission without delay.
The drawings are granted by the Commission on the basis of the date of acceptance of the entries for release for free circulation by the customs authorities of the Member State concerned, to the extent that the available balance so permits.
If a Member State does not use the quantities drawn, it shall return them as soon as possible to the tariff quota.
If the quantities requested are greater than the available balance of the tariff quota, allocation shall be made on a pro rata basis with respect to the requests. Member States shall be informed thereof by the Commission. Article 6
Each Member State shall ensure that importers of the products concerned have equal and continuous access to the quotas for such times as the balance of the tariff quota so permits. Article 7
Member States and the Commission shall cooperate closely to ensure that this Regulation is complied with. Article 8
This Regulation shall enter into force on 1 July 1991. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 May 1991. | [
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COUNCIL REGULATION (EEC) N° 3771/85
of 20 December 1985
on stocks of agricultural products in Portugal
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Act of Accession of Spain and Portugal, and in particular Article 258 (3) thereof,
Having regard to the proposal from the Commission,
Whereas Article 254 of the Act of Accession provides that any stock of products in free circulation in Portuguese territory on 1 March 1986 which in quantity exceeds that which may be considered representative of a normal carry-over stock must be eliminated by and at the expense of the Portuguese Republic;
Whereas Article 254 of the Act of Accession does not apply to products subject to transition in stages until the date on which the second stage commences;
Whereas, in the case of certain products, the level of any stocks need not be determined either for reasons relating to the nature of such products or the common organization of the markets, or because of the fact that no financing is provided by the European Agricultural Guidance and Guarantee Fund;
Whereas, for reasons relating to the management of agricultural markets, care should be taken to ensure that the elimination of the products as referred to in Article 254 of the Act of Accession does not lead to the creation of two parallel markets for the same product; whereas the aim laid down in that Article may be achieved within the framework of financing measures;
Whereas the expression 'any stock of product' covers both public and private stocks;
Whereas criteria should be defined to enable the quantity considered as a normal carry-over stock to be determined; whereas, to this end, account should be taken of the requirements of the Portuguese market for a period which may vary depending on the type of product;
Whereas, as a rule, the stocks to be eliminated at the expense of the Portuguese Republic may be determined from data already available or on the basis of estimates; whereas provision should nevertheless be made for the possibility of a survey;
Whereas, pursuant to the second sentence of Article 254 of the Act of Accession, the concept of normal carry-over stock shall be defined for each product on the basis of the criteria and objectives particular to each common organization of the markets;
Whereas, for tobacco, Article 297 of the Act of Accession provides that prices shall be fixed only for the first harvest following accession; whereas tobacco obtained from harvests preceding accession cannot be the subject of a market support measure and whereas, as a result, disposal thereof must be borne by the Portuguese Republic;
Whereas, pursuant to Article 2 (3) of the Treaty of Accession of Spain and Portugal, the institutions of the Communities may adopt, before accession, the measures referred to in Article 258 of the Act of Accession, such measures entering into force subject to, and on the date of, the entry into force of the said Treaty,
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation shall lay down the general rules for the application of Article 254 of the Act of Accession.
Article 2
This Regulation shall not cover products:
- which may not be stored,
- in which there is no likelihood of speculation, or
- for which there are no export refunds, nor intervention within the meaning of Article 3 (1) of Council Regulation (EEC) N° 729/70 of 21 April 1970 on the financing of the common agricultural policy (1).
Article 3
1. Products shall be considered as being in free circulation in Portuguese territory where:
(a) they are obtained entirely in Portugal;
(b) they are:
- obtained totally or partly from products from countries other than Portugal, or
- imported into Portugal,
in respect of which import formalities have been completed and on which customs duties and equivalent charges have been collected in Portugal, without any total or partial drawback thereof.
2. With the exception of very small quantities, any quantity of products belonging to or held by the Portuguese Republic or by any natural or legal persons shall be considered as stocks of products.
Article 4
A survey may be taken in order to determine the stocks of products in Portuguese territory on 1 March 1986. However, in the case of products subject to transition in stages, this date shall be replaced for each sector by the date on which the second stage commences.
Article 5
1. Except where special provisions regarding certain products are adopted, the operating stocks necessary for the requirements of the Portuguese market for a period to be determined shall be considered as normal carry-over stocks.
The period shall be determined in such a way as to ensure smooth transition to the 1986/87 marketing year for each product concerned; where no marketing year exists, this period may not extend beyond 31 December 1986, or, in the case of the products referred to in the second sentence of Article 4, beyond 31 December of the year in which the second stage commences.
The requirements of the Portuguese market shall be assessed in particular on the basis of consumption, processing and traditional exports, bearing in mind the criteria and objectives particular to each common organization of the markets.
In the olive oil sector, the following shall be treated as normal carry-over stocks, up to a quantity to be determined:
- private stocks,
- public stocks.
2. However, stocks comprising quantities of products involved in abnormal and speculative movements shall not be considered as normal carry-over stocks.
For the purposes of applying this paragraph, a decrease in trade in the products concerned may be considered as an abnormal movement.
3. The quantities of two or more different products may be taken together for the assessment of the normal carry-over stock.
Article 6
1. While it shall be the subject of specific declarations to the Commission as part of the documents forwarded in accordance with Article 5 of Regulation (EEC) N° 729/70, expenditure on refunds and, where appropriate, onintervention arising from the disposal of quantities of products of which stocks as referred to in the first sentence of Article 254 of the Act of Accession are determined shall not be taken into account by the European Agricultural Guidance and Guarantee Fund, Guarantee Section.
2. The quantities of products of which stocks as referred to in Article 254 of the Act of Accession are determined shall be considered as being disposed of first.
3. The quantity of product and the type of expenditure which shall not be taken into account shall be determined for each product concerned.
Where several types of expenditure may apply to one and the same product, the quantities of that product shall be determined for each type of expenditure and may vary with the latter. If the expenditure depends on the quality of the product, this shall also be taken into account.
4. Detailed rules for the application of paragraph 1 shall be adopted, as necessary, in accordance with the procedure laid down in Article 13 of Regulation (EEC) N° 729/70.
Article 7
Where the market situation, in the light in particular of patterns of trade and deliveries to intervention, indicates that the quantities of products taken into account for the determination of stocks are inappropriate, the Council, acting by a qualified majority on a proposal from the Commission, shall adopt the necessary measures.
Article 8
1. Detailed rules for the applicaton of this Regulation shall be adopted in accordance with the procedure laid down in Article 38 of Council Regulation (EEC) N° 136/66/EEC of 22 September 1966 on the establishment of a common organization of the market in oils and fats (1) or, as the case may be, in corresponding Articles in other regulations on the common organization of the agricultural markets.
2. The detailed rules referred to in paragraph 1 shall relate in particular to:
(a) the determination of stocks as referred to in Article 254 of the Act of Accession in the case of products the quantities of which exceed normal carry-over stocks;
(b) the determination referred to in Article 6 (3);
(c) the notifications to be forwarded to the Commission by the Portuguese Republic;
(d) the procedures for disposing of surplus products.
3. The detailed rules referred to in paragraph 1 may make provision for:
(a) a list of products in respect of which the Portuguese Republic carries out a survey of stocks;
(b) the collection of a charge on export from the Member State of storage to another Member State or to a third country, in cases where the products are exported at an abnormally low price level bearing in mind the price level applying in the exporting Member State;
(c) the collection of a charge in cases where a party concerned does not comply with the procedures for disposing of surplus products.
Article 9
This Regulation shall enter into force on 1 January 1986, subject to the entry into force of the Treaty of Accession of Spain and Portugal.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 December 1985. | [
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Commission Regulation (EC) No 367/2002
of 27 February 2002
fixing the export refunds on olive oil
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organisation of the market in oils and fats(1), as last amended by Regulation (EC) No 1513/2001(2), and in particular Article 3(3) thereof,
Whereas:
(1) Article 3 of Regulation No 136/66/EEC provides that, where prices within the Community are higher than world market prices, the difference between these prices may be covered by a refund when olive oil is exported to third countries.
(2) The detailed rules for fixing and granting export refunds on olive oil are contained in Commission Regulation (EEC) No 616/72(3), as last amended by Regulation (EEC) No 2962/77(4).
(3) Article 3(3) of Regulation No 136/66/EEC provides that the refund must be the same for the whole Community.
(4) In accordance with Article 3(4) of Regulation No 136/66/EEC, the refund for olive oil must be fixed in the light of the existing situation and outlook in relation to olive oil prices and availability on the Community market and olive oil prices on the world market. However, where the world market situation is such that the most favourable olive oil prices cannot be determined, account may be taken of the price of the main competing vegetable oils on the world market and the difference recorded between that price and the price of olive oil during a representative period. The amount of the refund may not exceed the difference between the price of olive oil in the Community and that on the world market, adjusted, where appropriate, to take account of export costs for the products on the world market.
(5) In accordance with Article 3(3) third indent, point (b) of Regulation No 136/66/EEC, it may be decided that the refund shall be fixed by tender. The tendering procedure should cover the amount of the refund and may be limited to certain countries of destination, quantities, qualities and presentations.
(6) The second indent of Article 3(3) of Regulation No 136/66/EEC provides that the refund on olive oil may be varied according to destination where the world market situation or the specific requirements of certain markets make this necessary.
(7) The refund must be fixed at least once every month. It may, if necessary, be altered in the intervening period.
(8) It follows from applying these detailed rules to the present situation on the market in olive oil and in particular to olive oil prices within the Community and on the markets of third countries that the refund should be as set out in the Annex hereto.
(9) 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
The export refunds on the products listed in Article 1(2)(c) of Regulation No 136/66/EEC shall be as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 28 February 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 February 2002. | [
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*****
COUNCIL DECISION
of 5 June 1989
on a Community action programme for improving the efficiency of electricity use
(89/364/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 235 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, in its resolution of 15 January 1985 on the improvement of energy-saving programmes in Member States (4), the Council invited Member States to pursue and where necessary increase their efforts to promote the more rational use of energy by the further development of integrated energy-saving policies;
Whereas, in its resolution of 16 September 1986 (5) concerning new Community energy policy objectives for 1995 and convergence of the policies of the Member States, the Council called for a vigorous policy of energy saving;
Whereas electricity production contributes by more than 35 % to the coverage of the Community's total primary energy consumption and whereas electricity consumption accounts for over 17 % of the Community's total final energy consumption;
Whereas improvements in the efficiency of electricity use would bring benefits in terms of lower primary energy consumption, reduced investment in electricity production capacity, reduced emission levels and lower electricity costs to consumers;
Whereas there is significant potential for improving the efficiency of electricity use and whereas specific action is required to exploit this potential;
Whereas an immediate consequence of saving energy is the saving of non-renewable raw materials and a reduction in the pollution of the environment, and whereas this is therefore consistent with the objectives laid down by Article 130r (1) of the Treaty;
Whereas, to achieve improvements in the efficiency of electricity use, electricity consumers should be encouraged to use the most efficient electrical appliances and equipment and whereas the efficiency of such appliances and equipment and of electrically-based processes should be further improved;
Whereas a Community action programme should be instituted to achieve these objectives, and whereas the Treaty does not provide for the action concerned, powers other than those of Article 235;
Whereas such a Community action programme would be complementary to other actions in the general field of energy saving;
Whereas the Community action programme would involve not only the Commission and Member State Governments but also other parties in the electricity sector notably the electricity consumers' organizations, and professional institutions,
HAS ADOPTED THIS DECISION:
Article 1
1. A Community action programme, hereinafter called 'Programme', for improving the efficiency of electricity use shall be instituted.
2. The Programme shall have as its twin objectives, inasmuch as this is technically and, in the long term, economically justified:
- to influence electricity consumers in favour of the use of appliances and equipment with high electrical efficiency in the most efficient manner, and
- to encourage further improvements in the efficiency of electrical appliances and equipment and of electricity-based processes.
Article 2
1. The action which may be taken under the Programme is summarized in the Annex.
2. The carrying-out of any or all of those activities shall depend on the specific situation of each Member State in relation to the Community objective to be achieved as defined in Article 1.
Article 3
In the context of the management and execution of measures under the Programme in its territory each Member State shall appoint a body to recommend and coordinate the implementation of action to carry out the Programme, in cooperation with the interested parties. The Member States shall set up such bodies as necessary.
Article 4
1. The Commission shall:
(a) coordinate, at Community level:
- action taken under the Programme, in conjunction, where necessary, with other existing programmes;
- the exchange of information and experience;
(b) monitor the Programme's progress and results.
2. In this connection, the Commission shall be responsible for technical support to the management of the Programme and for the management of actions which it takes with a view to the successful implementation of the Programme.
3. The Commission shall report regularly to the European Parliament, the Council and the Economic and Social Committee on the progress of the Programme and, where appropriate, on any additional measures which it envisages proposing to achieve the aims of the Programme. The first such report shall be submitted not later than eighteen months following the date on which this Decision takes effect, and ensuring reports at intervals not exceeding eighteen months.
Article 5
The Commission shall be assisted by a Committee of an advisory nature composed of the representatives of the Member States and chaired by the representative of the Commission.
The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time limit which the Chairman may lay down according to the urgency of the matter, if necessary by taking a vote.
The opinion shall be recorded in the minutes; in addition, each Member State shall have the right to ask to have its position recorded in the minutes.
The Commission shall take the utmost account of the opinion delivered by the Committee. It shall inform the Committee of the manner in which its opinion has been taken into account.
Article 6
If the achievement of the Programme objectives requires further Community action, the Commission shall lay before the Council any appropriate proposals for the purpose pursuant to the provisions of the Treaty.
Article 7
Before a period of three years has elapsed, the Programme and the procedures established for its implementation shall be re-examined, on the basis of a report by the Commission with a view to examining their effectiveness and their possible improvement.
Article 8
The Member States shall bring into force the provisions necessary to comply with this Decision not later than nine months after its adoption. They shall forthwith inform the Commission thereof.
Article 9
This Decision is addressed to the Member States.
Done at Luxembourg, 5 June 1989. | [
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COMMISSION REGULATION (EEC) No 384/93 of 19 February 1993 introducing special surveillance of imports of apples from third countries
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1035/72 of 18 May 1972 on the common organization of the market in fruit and vegetables (1), as last amended by Regulation (EEC) No 1754/92 (2), and in particular Article 29 (2) thereof,
Whereas Council Regulation (EEC) No 2707/72 (3) lays down the conditions for applying protective measures for fruit and vegetables;
Whereas this marketing year the production of apples in the Community is well up on the average for the last few years; whereas producer prices are, to a varying extent depending on the market concerned, well below those of the preceding marketing year; whereas unsold stocks are appreciably higher than at the same time last year despite the withdrawal of large quantities since the beginning of the marketing year;
Whereas, because of this high production, excessive imports of apples during this marketing year would be likely to cause serious market disturbance which might endanger the objectives set out in Article 39 of the Treaty;
Whereas measures should accordingly be adopted which will allow close monitoring of apple imports until the end of the period of importation; whereas the system which is best suited to that purpose would be a system of import licences which provides for a waiting period between the application for a licence and the latter's date of issue and involves the lodging of a security to ensure that importers fulfil their obligations;
Whereas it is advisable to apply the provisions of Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (4), as last amended by Regulation (EEC) No 2101/92 (5), subject to the application of certain provisions specific to this Regulation;
Whereas, in order to take account of the special situation of prodcs in transit to the Community on the date of entry into force of this Regulation, import licences applied for before 27 February 1993 should be issued without delay,
HAS ADOPTED THIS REGULATION:
Article 1
The release before 1 September 1993, for free circulation within the Community, of apples falling within codes 0808 10 31, 0808 10 33, 0808 10 39, 0808 10 51, 0808 10 53, 0808 10 59, 0808 10 81, 0808 10 83 and 0808 10 89 shall be subject to the presentation of an import licence issued, in accordance with Articles 2 and 3, by the Member States concerned to all apllicants irrespective of where their place of business is located in the Community.
Article 2
1. The import licence shall be issued subject to the lodging of a security of ECU 1,5 per 100 kilograms net. The security shall be forfeit in whole or in part if, during the period of validity of the licence, the quantities stated in the licence are not released for free circulation or are released for circulation in part only.
2. Import licences shall be valid for 40 days from their date of issue as defined in Article 3 (2). However, their validity shall not go beyond 31 August 1993.
3. The provisions of Regulation (EEC) No 3719/88 shall apply, subject to the following specific provisions:
- the fourth indent of Article 5 (1) and Article 8 (4) shall not apply. The quantity released for free circulation may not be more than that indicated in boxes 17 and 18 of the licence; the figure 0 shall be entered in box 19 of the licence accordingly,
- notwithstanding Article 8 (5), the obligation to import shall be deemed to be fulfilled when the quantity imported is not more than 7 % below the quantity indicated on the licence,
- notwithstanding the second sentence of Article 9 (1), rights deriving from the import licence shall not be transferable,
- notwithstanding the first subparagraph of Article 33 (2), where the obligation to import has not been fulfilled the security shall be forfeit in respect of a quantity equal to the difference between:
- 93 % of the net quantity indicated on the licence, and
- the net quantity actually imported.
Article 3
1. The product's country of origin shall be stated in box 8 of both the application for an import licence and the licence itself. The import licence shall be valid only for products originating in the country shown in the said box 8.
2. Import licences shall be issued on the fifth working day following the day on which the application is lodged unless measures are taken within that time.
However, import licences applied for before 27 February 1993 shall be issued without delay.
Article 4
The Member States shall notify the Commission of:
1. the quantities of apples, by CN code and by country of origin, for which applications for import licences have been received.
Such notifications shall take place:
- every Wednesday, in respect of applications lodged on the Monday or Tuesday of that week,
- every Friday, in respect of applications lodged on the Wednesday or Thursday of that week,
- every Monday, in respect of applications lodged the preceding week on Friday;
2. the quantities covered by import licences which have not been used or which have been used only in part, corresponding to the difference between the quantities entered on the back of the licences and the quantities for which the licences were issued.
Such notifications shall take place every Wednesday, in respect of information received the previous week.
If no applications for import licences have been submitted during one of the periods specified in point 1 of if there are no unused quantities within the meaning of point 2, the Member States in question shall so inform the Commission on the days indicated in this Article.
Article 5
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, 19 February 1993. | [
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Council Decision
of 4 March 2002
concerning the conclusion of the Fourth Amendment to the Montreal Protocol on substances that deplete the ozone layer
(2002/215/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 175(1) in conjunction with the first sentence of Article 300(2) and first subparagraph of Article 300(3) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Parliament(2),
Whereas:
(1) The Community, by reason of its responsibilities for the environment, by Decision 88/540/EEC(3) became a party to the Vienna Convention for the protection of the ozone layer and the Montreal Protocol on substances that deplete the ozone layer, and by Decision 91/690/EEC(4) approved the First Amendment to the said Protocol, by Decision 94/68/EC(5) approved the Second Amendment to the said Protocol and by Decision 2000/646/EC(6) approved the Third Amendment to the said Protocol.
(2) Recent evidence indicates that for the adequate protection of the ozone layer a higher degree of control of trade in ozone depleting substances is required than is provided by the Montreal Protocol, as amended in 1997. The same evidence indicates that there should be additional measures to control production of ozone-depleting substances and in particular on hydrochlorofluorcarbons and new substances.
(3) A Fourth Amendment to the Montreal Protocol introducing these controls was adopted by the Parties in December 1999 in Beijing.
(4) The Commission, on behalf of the Community, took part in the negotiation and adoption of that amendment.
(5) The Community has adopted measures in the area covered by the amendment, in particular in Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer(7), and it should, therefore, undertake international commitments in that area.
(6) It is necessary for the Community to approve the Fourth Amendment to the Montreal Protocol because its provisions relate to production and trade in controlled substances between the Community and other Parties, the implementation of which is the responsibility of the Community,
HAS DECIDED AS FOLLOWS:
Article 1
The Fourth Amendment to the Montreal Protocol on substances that deplete the ozone layer is hereby approved on behalf of the Community.
The text of this Amendment is attached to this Decision.
Article 2
The President of the Council is hereby authorised to designate the person or persons empowered to deposit the instrument of approval of this Fourth Amendment on behalf of the Community with the Secretary-General of the United Nations in accordance with Article 13 of the Vienna Convention for the Protection of the Ozone Layer as read in conjunction with Article 3 of the Fourth Amendment to the Montreal Protocol.
Article 3
This Decision shall be published in the Official Journal of the European Communities.
Done at Brussels, 4 March 2002. | [
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COMMISSION DECISION of 24 October 1997 on financial aid from the Community for the operation of the Community reference laboratory for classical swine fever, Hannover, Germany (97/749/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field (1), as last amended by Decision 94/370/EEC (2), and in particular Article 28 (2) thereof,
Whereas Annex VI to Council Directive 80/217/EEC of 22 January 1980 introducing Community measures for the control of classical swine fever (3), as last amended by the Act of Accession of Austria, Finland and Sweden, designates the Institute of Virology, School of Veterinary Medicine, Hannover, Germany, as the reference laboratory for classical swine fever;
Whereas all functions and duties which the laboratory has to perform are specified in Annex VI to that Directive; whereas Community assistance must be conditional on the accomplishment of these;
Whereas the Community financial aid should be granted to the Community reference laboratory to enable it to carry out the said functions and duties;
Whereas for budgetary reasons the Community assistance should be granted for a period of one year;
Whereas for supervisory purposes Articles 8 and 9 of Council Regulation (EEC) No 729/70 of 21 April 1970 on financing of the common agricultural policy (4), as last amended by Regulation (EC) No 1287/95 (5), should apply;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
The Community shall grant Germany financial assistance for the functions and duties to be carried out in the Community reference laboratory for classical swine fever at the Institute for Virology, School of Veterinary Medicine, Hannover, Germany.
Article 2
The Institute for Virology, School of Veterinary Medicine, Hannover, Germany, shall perform the functions and duties to which Article 1 relates. The provisions of Annex VI of Council Directive 80/217/EEC shall apply.
Article 3
The Community's financial assistance shall be a maximum of ECU 150 000 for the period from 1 October 1997 to 30 September 1998.
Article 4
The Community's financial assistance shall be paid as follows:
- 70 % by way of an advance at Germany's request,
- the balance following presentation of supporting technical and financial documents. These documents must be presented before 1 December 1998.
Article 5
Articles 8 and 9 of Council Regulation (EEC) No 729/70 shall apply mutatis mutandis.
Article 6
This Decision is addressed to Germany.
Done at Brussels, 24 October 1997. | [
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*****
COMMISSION DECISION
of 29 June 1988
concerning the areas referred to in Article 3 (2) of Council Regulation (EEC) No 328/88 instituting a Community programme to assist the conversion of steel areas (Resider)
(Only the English text is authentic)
(88/444/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 328/88 of 2 February 1988 instituting a Community programme to assist the conversion of steel areas (Resider programme) (1), and in particular Article 3 (2) thereof,
Whereas Article 3 (2) of Regulation (EEC) No 328/88 provides that the Community programme shall apply to those areas which meet the criteria laid down in Article 3 (1) and the thresholds laid down in Article 4 (1) of that Regulation;
Whereas the areas likely to be eligible to benefit from the Community programme must be the subject of an application by the Member State in question; whereas the United Kingdom has submitted such an application to the Commission;
Whereas the employment basin comprising the county of South Yorkshire (including the travel-to-work area of Sheffield) and the travel-to-work area of Scunthorpe in the counties of Humberside and Lincolnshire conforms to the abovementioned criteria and thresholds,
HAS ADOPTED THIS DECISION:
Article 1
1. The employment basin comprising the county of South Yorkshire (including the travel-to-work area of Sheffield) and the travel-to-work area of Scunthorpe in the counties of Humberside and Lincolnshire in the United Kingdom satisfies the criteria stated in Article 3 (1) and the thresholds stated in Article 4 (1) of Regulation (EEC) No 328/88. The Community programme instituted by the Regulation in question shall therefore apply to that area.
2. The references to travel-to-work areas in paragraph 1 are to those areas as constituted on 27 September 1984.
Article 2
This Decision is addressed to the United Kingdom.
Done at Brussels, 29 June 1988. | [
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Directive 2003/71/EC of the European Parliament and of the Council
of 4 November 2003
on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC
(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 Articles 44 and 95 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Economic and Social Committee(2),
Having regard to the opinion of the European Central Bank(3),
Acting in accordance with the procedure laid down in Article 251 of the Treaty(4),
Whereas:
(1) Council Directives 80/390/EEC of 17 March 1980 coordinating the requirements for the drawing up, scrutiny and distribution of the listing particulars to be published for the admission of securities to official stock exchange listing(5) and 89/298/EEC of 17 April 1989 coordinating the requirements for the drawing up, scrutiny and distribution of the prospectus to be published when transferable securities are offered to the public(6) were adopted several years ago introducing a partial and complex mutual recognition mechanism which is unable to achieve the objective of the single passport provided for by this Directive. Those directives should be upgraded, updated and grouped together into a single text.
(2) Meanwhile, Directive 80/390/EEC was integrated into Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 on the admission of securities to official stock exchange listing and on information to be published on those securities(7), which codifies several directives in the field of listed securities.
(3) For reasons of consistency, however, it is appropriate to regroup the provisions of Directive 2001/34/EC which stem from Directive 80/390/EEC together with Directive 89/298/EEC and to amend Directive 2001/34/EC accordingly.
(4) This Directive constitutes an instrument essential to the achievement of the internal market as set out in timetable form in the Commission communications "Risk capital action plan" and "Implementing the framework for financial market: Action Plan" facilitating the widest possible access to investment capital on a Community-wide basis, including for small and medium-sized enterprises (SMEs) and start-ups, by granting a single passport to the issuer.
(5) On 17 July 2000, the Council set up the Committee of Wise Men on the regulation of European securities markets. In its initial report of 9 November 2000 the Committee stresses the lack of an agreed definition of public offer of securities, with the result that the same operation is regarded as a private placement in some Member States and not in others; the current system discourages firms from raising capital on a Community-wide basis and therefore from having real access to a large, liquid and integrated financial market.
(6) In its final report of 15 February 2001 the Committee of Wise Men proposed the introduction of new legislative techniques based on a four-level approach, namely framework principles, implementing measures, cooperation and enforcement. Level 1, the directive, should confine itself to broad, general "framework" principles, while Level 2 should contain technical implementing measures to be adopted by the Commission with the assistance of a committee.
(7) The Stockholm European Council of 23 and 24 March 2001 endorsed the final report of the Committee of Wise Men and the proposed four-level approach to make the regulatory process for Community securities legislation more efficient and transparent.
(8) The resolution of the European Parliament of 5 February 2002 on the implementation of financial services legislation also endorsed the Committee of Wise Men's final report, on the basis of the solemn declaration made before Parliament the same day by the Commission and the letter of 2 October 2001 addressed by the Internal Market Commissioner to the chairman of Parliament's Committee on Economic and Monetary Affairs with regard to the safeguards for the European Parliament's role in this process.
(9) According to the Stockholm European Council, Level 2 implementing measures should be used more frequently to ensure that technical provisions can be kept up to date with market and supervisory developments and deadlines should be set for all stages of Level 2.
(10) The aim of this Directive and its implementing measures is to ensure investor protection and market efficiency, in accordance with high regulatory standards adopted in the relevant international fora.
(11) Non-equity securities issued by a Member State or by one of a Member State's regional or local authorities, by public international bodies of which one or more Member States are members, by the European Central Bank or by the central banks of the Member States are not covered by this Directive and thus remain unaffected by this Directive; the abovementioned issuers of such securities may, however, if they so choose, draw up a prospectus in accordance with this Directive.
(12) Full coverage of equity and non-equity securities offered to the public or admitted to trading on regulated markets as defined by Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field(8), and not only securities which have been admitted to the official lists of stock exchanges, is also needed to ensure investor protection. The wide definition of securities in this Directive, which includes warrants and covered warrants and certificates, is only valid for this Directive and consequently in no way affects the various definitions of financial instruments used in national legislation for other purposes, such as taxation. Some of the securities defined in this Directive entitle the holder to acquire transferable securities or to receive a cash amount through a cash settlement determined by reference to other instruments, notably transferable securities, currencies, interest rates or yields, commodities or other indices or measures. Depositary receipts and convertible notes, e.g. securities convertible at the option of the investor, fall within the definition of non-equity securities set out in this Directive.
(13) Issuance of securities having a similar type and/or class in the case of non-equity securities issued on the basis of an offering programme, including warrants and certificates in any form, as well as the case of securities issued in a continuous or repeated manner, should be understood as covering not only identical securities but also securities that belong in general terms to one category. These securities may include different products, such as debt securities, certificates and warrants, or the same product under the same programme, and may have different features notably in terms of seniority, types of underlying, or the basis on which to determine the redemption amount or coupon payment.
(14) The grant to the issuer of a single passport, valid throughout the Community, and the application of the country of origin principle require the identification of the home Member State as the one best placed to regulate the issuer for the purposes of this Directive.
(15) The disclosure requirements of the present Directive do not prevent a Member State or a competent authority or an exchange through its rule book to impose other particular requirements in the context of admission to trading of securities on a regulated market (notably regarding corporate governance). Such requirements may not directly or indirectly restrict the drawing up, the content and the dissemination of a prospectus approved by a competent authority.
(16) One of the objectives of this Directive is to protect investors. It is therefore appropriate to take account of the different requirements for protection of the various categories of investors and their level of expertise. Disclosure provided by the prospectus is not required for offers limited to qualified investors. In contrast, any resale to the public or public trading through admission to trading on a regulated market requires the publication of a prospectus.
(17) Issuers, offerors or persons asking for the admission to trading on a regulated market of securities which are exempted from the obligation to publish a prospectus will benefit from the single passport if they comply with this Directive.
(18) The provision of full information concerning securities and issuers of those securities promotes, together with rules on the conduct of business, the protection of investors. Moreover, such information provides an effective means of increasing confidence in securities and thus of contributing to the proper functioning and development of securities markets. The appropriate way to make this information available is to publish a prospectus.
(19) Investment in securities, like any other form of investment, involves risk. Safeguards for the protection of the interests of actual and potential investors are required in all Member States in order to enable them to make an informed assessment of such risks and thus to take investment decisions in full knowledge of the facts.
(20) Such information, which needs to be sufficient and as objective as possible as regards the financial circumstances of the issuer and the rights attaching to the securities, should be provided in an easily analysable and comprehensible form. Harmonisation of the information contained in the prospectus should provide equivalent investor protection at Community level.
(21) Information is a key factor in investor protection; a summary conveying the essential characteristics of, and risks associated with, the issuer, any guarantor and the securities should be included in the prospectus. To ensure easy access to this information, the summary should be written in non-technical language and normally should not exceed 2500 words in the language in which the prospectus was originally drawn up.
(22) Best practices have been adopted at international level in order to allow cross-border offers of equities to be made using a single set of disclosure standards established by the International Organisation of Securities Commissions (IOSCO); the IOSCO disclosure standards(9) will upgrade information available for the markets and investors and at the same time will simplify the procedure for Community issuers wishing to raise capital in third countries. The Directive also calls for tailored disclosure standards to be adopted for other types of securities and issuers.
(23) Fast-track procedures for issuers admitted to trading on a regulated market and frequently raising capital on these markets require the introduction at Community level of a new format of prospectuses for offering programmes or mortgage bonds and a new registration document system. Issuers may choose not to use those formats and therefore to draft the prospectus as a single document.
(24) The content of a base prospectus should, in particular, take into account the need for flexibility in relation to the information to be provided about the securities.
(25) Omission of sensitive information to be included in a prospectus should be allowed through a derogation granted by the competent authority in certain circumstances in order to avoid detrimental situations for an issuer.
(26) A clear time limit should be set for the validity of a prospectus in order to avoid outdated information.
(27) Investors should be protected by ensuring publication of reliable information. The issuers whose securities are admitted to trading on a regulated market are subject to an ongoing disclosure obligation but are not required to publish updated information regularly. Further to this obligation, issuers should, at least annually, list all relevant information published or made available to the public over the preceding 12 months, including information provided to the various reporting requirements laid down in other Community legislation. This should make it possible to ensure the publication of consistent and easily understandable information on a regular basis. To avoid excessive burdens for certain issuers, issuers of non-equity securities with high minimum denomination should not be required to meet this obligation.
(28) It is necessary for the annual information to be provided by issuers whose securities are admitted to trading on a regulated market to be appropriately monitored by Member States in accordance with their obligations under the provisions of Community and national law concerning the regulation of securities, issuers of securities and securities markets.
(29) The opportunity of allowing issuers to incorporate by reference documents containing the information to be disclosed in a prospectus - provided that the documents incorporated by reference have been previously filed with or accepted by the competent authority - should facilitate the procedure of drawing up a prospectus and lower the costs for the issuers without endangering investor protection.
(30) Differences regarding the efficiency, methods and timing of the checking of the information given in a prospectus not only make it more difficult for undertakings to raise capital or to obtain admission to trading on a regulated market in more than one Member State but also hinder the acquisition by investors established in one Member State of securities offered by an issuer established in another Member State or admitted to trading in another Member State. These differences should be eliminated by harmonising the rules and regulations in order to achieve an adequate degree of equivalence of the safeguards required in each Member State to ensure the provision of information which is sufficient and as objective as possible for actual or potential securities holders.
(31) To facilitate circulation of the various documents making up the prospectus, the use of electronic communication facilities such as the Internet should be encouraged. The prospectus should always be delivered in paper form, free of charge to investors on request.
(32) The prospectus should be filed with the relevant competent authority and be made available to the public by the issuer, the offeror or the person asking for admission to trading on a regulated market, subject to European Union provisions relating to data protection.
(33) It is also necessary, in order to avoid loopholes in Community legislation which would undermine public confidence and therefore prejudice the proper functioning of financial markets, to harmonise advertisements.
(34) Any new matter liable to influence the assessment of the investment, arising after the publication of the prospectus but before the closing of the offer or the start of trading on a regulated market, should be properly evaluated by investors and therefore requires the approval and dissemination of a supplement to the prospectus.
(35) The obligation for an issuer to translate the full prospectus into all the relevant official languages discourages cross-border offers or multiple trading. To facilitate cross-border offers, where the prospectus is drawn up in a language that is customary in the sphere of international finance, the host or home Member State should only be entitled to require a summary in its official language(s).
(36) The competent authority of the host Member State should be entitled to receive a certificate from the competent authority of the home Member State which states that the prospectus has been drawn up in accordance with this Directive. In order to ensure that the purposes of this Directive will be fully achieved, it is also necessary to include within its scope securities issued by issuers governed by the laws of third countries.
(37) A variety of competent authorities in Member States, having different responsibilities, may create unnecessary costs and overlapping of responsibilities without providing any additional benefit. In each Member State one single competent authority should be designated to approve prospectuses and to assume responsibility for supervising compliance with this Directive. Under strict conditions, a Member State should be allowed to designate more than one competent authority, but only one will assume the duties for international cooperation. Such an authority or authorities should be established as an administrative authority and in such a form that their independence from economic actors is guaranteed and conflicts of interest are avoided. The designation of a competent authority for prospectus approval should not exclude cooperation between that authority and other entities, with a view to guaranteeing efficient scrutiny and approval of prospectuses in the interest of issuers, investors, markets participants and markets alike. Any delegation of tasks relating to the obligations provided for in this Directive and in its implementing measures should be reviewed, in accordance with Article 31, five years after the date of entry into force of this Directive and should, except for publication on the Internet of approved prospectuses, and the filing of prospectuses as mentioned in Article 14, end eight years after the entry into force of this Directive.
(38) A common minimum set of powers for the competent authorities will guarantee the effectiveness of their supervision. The flow of information to the markets required by Directive 2001/34/EC should be ensured and action against breaches should be taken by competent authorities.
(39) For the purposes of carrying out their duties, cooperation between competent authorities of the Member States is required.
(40) Technical guidance and implementing measures for the rules laid down in this Directive may from time to time be necessary to take into account developments on financial markets. The Commission should accordingly be empowered to adopt implementing measures, provided that these do not modify the essential elements of this Directive and provided that the Commission acts in accordance with the principles set out in this Directive, after consulting the European Securities Committee established by Commission Decision 2001/528/EC(10).
(41) In exercising its implementing powers in accordance with this Directive, the Commission should respect the following principles:
- the need to ensure confidence in financial markets among small investors and small and medium-sized enterprises (SMEs) by promoting high standards of transparency in financial markets,
- the need to provide investors with a wide range of competing investment opportunities and a level of disclosure and protection tailored to their circumstances,
- the need to ensure that independent regulatory authorities enforce the rules consistently, especially as regards the fight against white-collar crime,
- the need for a high level of transparency and consultation with all market participants and with the European Parliament and the Council,
- the need to encourage innovation in financial markets if they are to be dynamic and efficient,
- the need to ensure systemic stability of the financial system by close and reactive monitoring of financial innovation,
- the importance of reducing the cost of, and increasing access to, capital,
- the need to balance, on a long-term basis, the costs and benefits to market participants (including SMEs and small investors) of any implementing measures,
- the need to foster the international competitiveness of the Community's financial markets without prejudice to a much-needed extension of international cooperation,
- the need to achieve a level playing field for all market participants by establishing Community legislation every time it is appropriate,
- the need to respect differences in national financial markets where these do not unduly impinge on the coherence of the single market,
- the need to ensure coherence with other Community legislation in this area, as imbalances in information and a lack of transparency may jeopardise the operation of the markets and above all harm consumers and small investors.
(42) The European Parliament should be given a period of three months from the first transmission of draft implementing measures to allow it to examine them and to give its opinion. However, in urgent and duly justified cases, this period may be shortened. If, within that period, a resolution is passed by the European Parliament, the Commission should re-examine the draft measures.
(43) Member States should lay down a system of sanctions for breaches of the national provisions adopted pursuant to this Directive and should take all the measures necessary to ensure that these sanctions are applied. The sanctions thus provided for should be effective, proportional and dissuasive.
(44) Provision should be made for the right of judicial review of decisions taken by Member States' competent authorities in respect of the application of this Directive.
(45) In accordance with the principle of proportionality, it is necessary and appropriate for the achievement of the basic objective of ensuring the completion of a single securities market to lay down rules on a single passport for issuers. This Directive does not go beyond what is necessary in order to achieve the objectives pursued in accordance with the third paragraph of Article 5 of the Treaty.
(46) The assessment made by the Commission of the application of this Directive should focus in particular on the process of approval of prospectuses by the competent authorities of the Member States, and more generally on the application of the home-country principle, and whether or not problems of investor protection and market efficiency might result from this application; the Commission should also examine the functioning of Article 10.
(47) For future developments of this Directive, consideration should be given to the matter of deciding which approval mechanism should be adopted to enhance further the uniform application of Community legislation on prospectuses, including the possible establishment of a European Securities Unit.
(48) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.
(49) 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(11),
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I GENERAL PROVISIONS
Article 1
Purpose and scope
1. The purpose of this Directive is to harmonise requirements for the drawing up, approval and distribution of the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market situated or operating within a Member State.
2. This Directive shall not apply to:
(a) units issued by collective investment undertakings other than the closed-end type;
(b) non-equity securities issued by a Member State or by one of a Member State's regional or local authorities, by public international bodies of which one or more Member States are members, by the European Central Bank or by the central banks of the Member States;
(c) shares in the capital of central banks of the Member States;
(d) securities unconditionally and irrevocably guaranteed by a Member State or by one of a Member State's regional or local authorities;
(e) securities issued by associations with legal status or non-profit-making bodies, recognised by a Member State, with a view to their obtaining the means necessary to achieve their non-profit-making objectives;
(f) non-equity securities issued in a continuous or repeated manner by credit institutions provided that these securities:
(i) are not subordinated, convertible or exchangeable;
(ii) do not give a right to subscribe to or acquire other types of securities and that they are not linked to a derivative instrument;
(iii) materialise reception of repayable deposits;
(iv) are covered by a deposit guarantee scheme under Directive 94/19/EC of the European Parliament and of the Council on deposit-guarantee schemes(12);
(g) non-fungible shares of capital whose main purpose is to provide the holder with a right to occupy an apartment, or other form of immovable property or a part thereof and where the shares cannot be sold on without this right being given up;
(h) securities included in an offer where the total consideration of the offer is less than EUR 2500000, which limit shall be calculated over a period of 12 months;
(i) "bostadsobligationer" issued repeatedly by credit institutions in Sweden whose main purpose is to grant mortgage loans, provided that
(i) the "bostadsobligationer" issued are of the same series;
(ii) the "bostadsobligationer" are issued on tap during a specified issuing period;
(iii) the terms and conditions of the "bostadsobligationer" are not changed during the issuing period;
(iv) the sums deriving from the issue of the said "bostadsobligationer", in accordance with the articles of association of the issuer, are placed in assets which provide sufficient coverage for the liability deriving from securities;
(j) non-equity securities issued in a continuous or repeated manner by credit institutions where the total consideration of the offer is less than EUR 50000000, which limit shall be calculated over a period of 12 months, provided that these securities:
(i) are not subordinated, convertible or exchangeable;
(ii) do not give a right to subscribe to or acquire other types of securities and that they are not linked to a derivative instrument.
3. Notwithstanding paragraph 2(b), (d), (h), (i) and (j), an issuer, an offeror or a person asking for admission to trading on a regulated market shall be entitled to draw up a prospectus in accordance with this Directive when securities are offered to the public or admitted to trading.
Article 2
Definitions
1. For the purposes of this Directive, the following definitions shall apply:
(a) "securities" means transferable securities as defined by Article 1(4) of Directive 93/22/EEC with the exception of money market instruments as defined by Article 1(5) of Directive 93/22/EEC, having a maturity of less than 12 months. For these instruments national legislation may be applicable;
(b) "equity securities" means shares and other transferable securities equivalent to shares in companies, as well as any other type of transferable securities giving the right to acquire any of the aforementioned securities as a consequence of their being converted or the rights conferred by them being exercised, provided that securities of the latter type are issued by the issuer of the underlying shares or by an entity belonging to the group of the said issuer;
(c) "non-equity securities" means all securities that are not equity securities;
(d) "offer of securities to the public" means a communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the securities to be offered, so as to enable an investor to decide to purchase or subscribe to these securities. This definition shall also be applicable to the placing of securities through financial intermediaries;
(e) "qualified investors" means:
(i) legal entities which are authorised or regulated to operate in the financial markets, including: credit institutions, investment firms, other authorised or regulated financial institutions, insurance companies, collective investment schemes and their management companies, pension funds and their management companies, commodity dealers, as well as entities not so authorised or regulated whose corporate purpose is solely to invest in securities;
(ii) national and regional governments, central banks, international and supranational institutions such as the International Monetary Fund, the European Central Bank, the European Investment Bank and other similar international organisations;
(iii) other legal entities which do not meet two of the three criteria set out in paragraph (f);
(iv) certain natural persons: subject to mutual recognition, a Member State may choose to authorise natural persons who are resident in the Member State and who expressly ask to be considered as qualified investors if these persons meet at least two of the criteria set out in paragraph 2;
(v) certain SMEs: subject to mutual recognition, a Member State may choose to authorise SMEs which have their registered office in that Member State and who expressly ask to be considered as qualified investors;
(f) "small and medium-sized enterprises" means companies, which, according to their last annual or consolidated accounts, meet at least two of the following three criteria: an average number of employees during the financial year of less than 250, a total balance sheet not exceeding EUR 43000000 and an annual net turnover not exceeding EUR 50000000;
(g) "credit institution" means an undertaking as defined by Article 1(1)(a) of Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions(13);
(h) "issuer" means a legal entity which issues or proposes to issue securities;
(i) "person making an offer" (or "offeror") means a legal entity or individual which offers securities to the public;
(j) "regulated market" means a market as defined by Article 1(13) of Directive 93/22/EEC;
(k) "offering programme" means a plan which would permit the issuance of non-equity securities, including warrants in any form, having a similar type and/or class, in a continuous or repeated manner during a specified issuing period;
(l) "securities issued in a continuous or repeated manner" means issues on tap or at least two separate issues of securities of a similar type and/or class over a period of 12 months;
(m) "home Member State" means:
(i) for all Community issuers of securities which are not mentioned in (ii), the Member State where the issuer has its registered office;
(ii) for any issues of non-equity securities whose denomination per unit amounts to at least EUR 1000, and for any issues of non-equity securities giving the right to acquire any transferable securities or to receive a cash amount, as a consequence of their being converted or the rights conferred by them being exercised, provided that the issuer of the non-equity securities is not the issuer of the underlying securities or an entity belonging to the group of the latter issuer, the Member State where the issuer has its registered office, or where the securities were or are to be admitted to trading on a regulated market or where the securities are offered to the public, at the choice of the issuer, the offeror or the person asking for admission, as the case may be. The same regime shall be applicable to non-equity securities in a currency other than euro, provided that the value of such minimum denomination is nearly equivalent to EUR 1000;
(iii) for all issuers of securities incorporated in a third country, which are not mentioned in (ii), the Member State where the securities are intended to be offered to the public for the first time after the date of entry into force of this Directive or where the first application for admission to trading on a regulated market is made, at the choice of the issuer, the offeror or the person asking for admission, as the case may be, subject to a subsequent election by issuers incorporated in a third country if the home Member State was not determined by their choice;
(n) "host Member State" means the State where an offer to the public is made or admission to trading is sought, when different from the home Member State;
(o) "collective investment undertaking other than the closed-end type" means unit trusts and investment companies:
(i) the object of which is the collective investment of capital provided by the public, and which operate on the principle of risk-spreading;
(ii) the units of which are, at the holder's request, repurchased or redeemed, directly or indirectly, out of the assets of these undertakings;
(p) "units of a collective investment undertaking" mean securities issued by a collective investment undertaking as representing the rights of the participants in such an undertaking over its assets;
(q) "approval" means the positive act at the outcome of the scrutiny of the completeness of the prospectus by the home Member State's competent authority including the consistency of the information given and its comprehensibility;
(r) "base prospectus" means a prospectus containing all relevant information as specified in Articles 5, 7 and 16 in case there is a supplement, concerning the issuer and the securities to be offered to the public or admitted to trading, and, at the choice of the issuer, the final terms of the offering.
2. For the purposes of paragraph 1(e)(iv) the criteria are as follows:
(a) the investor has carried out transactions of a significant size on securities markets at an average frequency of, at least, 10 per quarter over the previous four quarters;
(b) the size of the investor's securities portfolio exceeds EUR 0,5 million;
(c) the investor works or has worked for at least one year in the financial sector in a professional position which requires knowledge of securities investment.
3. For the purposes of paragraphs 1(e)(iv) and (v) the following shall apply:
Each competent authority shall ensure that appropriate mechanisms are in place for a register of natural persons and SMEs considered as qualified investors, taking into account the need to ensure an adequate level of data protection. The register shall be available to all issuers. Each natural person or SME wishing to be considered as a qualified investor shall register and each registered investor may decide to opt out at any moment.
4. In order to take account of technical developments on financial markets and to ensure uniform application of this Directive, the Commission shall, in accordance with the procedure set out in Article 24(2), adopt implementing measures concerning the definitions referred to in paragraph 1, including adjustment of the figures used for the definition of SMEs, taking into account Community legislation and recommendations as well as economic developments and disclosure measures relating to the registration of individual qualified investors.
Article 3
Obligation to publish a prospectus
1. Member States shall not allow any offer of securities to be made to the public within their territories without prior publication of a prospectus.
2. The obligation to publish a prospectus shall not apply to the following types of offer:
(a) an offer of securities addressed solely to qualified investors; and/or
(b) an offer of securities addressed to fewer than 100 natural or legal persons per Member State, other than qualified investors; and/or
(c) an offer of securities addressed to investors who acquire securities for a total consideration of at least EUR 50000 per investor, for each separate offer; and/or
(d) an offer of securities whose denomination per unit amounts to at least EUR 50000; and/or
(e) an offer of securities with a total consideration of less than EUR 100000, which limit shall be calculated over a period of 12 months.
However, any subsequent resale of securities which were previously the subject of one or more of the types of offer mentioned in this paragraph shall be regarded as a separate offer and the definition set out in Article 2(1)(d) shall apply for the purpose of deciding whether that resale is an offer of securities to the public. The placement of securities through financial intermediaries shall be subject to publication of a prospectus if none of the conditions (a) to (e) are met for the final placement.
3. Member States shall ensure that any admission of securities to trading on a regulated market situated or operating within their territories is subject to the publication of a prospectus.
Article 4
Exemptions from the obligation to publish a prospectus
1. The obligation to publish a prospectus shall not apply to offers of securities to the public of the following types of securities:
(a) shares issued in substitution for shares of the same class already issued, if the issuing of such new shares does not involve any increase in the issued capital;
(b) securities offered in connection with a takeover by means of an exchange offer, provided that a document is available containing information which is regarded by the competent authority as being equivalent to that of the prospectus, taking into account the requirements of Community legislation;
(c) securities offered, allotted or to be allotted in connection with a merger, provided that a document is available containing information which is regarded by the competent authority as being equivalent to that of the prospectus, taking into account the requirements of Community legislation;
(d) shares offered, allotted or to be allotted free of charge to existing shareholders, and dividends paid out in the form of shares of the same class as the shares in respect of which such dividends are paid, provided that a document is made available containing information on the number and nature of the shares and the reasons for and details of the offer;
(e) securities offered, allotted or to be allotted to existing or former directors or employees by their employer which has securities already admitted to trading on a regulated market or by an affiliated undertaking, provided that a document is made available containing information on the number and nature of the securities and the reasons for and details of the offer.
2. The obligation to publish a prospectus shall not apply to the admission to trading on a regulated market of the following types of securities:
(a) shares representing, over a period of 12 months, less than 10 per cent of the number of shares of the same class already admitted to trading on the same regulated market;
(b) shares issued in substitution for shares of the same class already admitted to trading on the same regulated market, if the issuing of such shares does not involve any increase in the issued capital;
(c) securities offered in connection with a takeover by means of an exchange offer, provided that a document is available containing information which is regarded by the competent authority as being equivalent to that of the prospectus, taking into account the requirements of Community legislation;
(d) securities offered, allotted or to be allotted in connection with a merger, provided that a document is available containing information which is regarded by the competent authority as being equivalent to that of the prospectus, taking into account the requirements of Community legislation;
(e) shares offered, allotted or to be allotted free of charge to existing shareholders, and dividends paid out in the form of shares of the same class as the shares in respect of which such dividends are paid, provided that the said shares are of the same class as the shares already admitted to trading on the same regulated market and that a document is made available containing information on the number and nature of the shares and the reasons for and details of the offer;
(f) securities offered, allotted or to be allotted to existing or former directors or employees by their employer or an affiliated undertaking, provided that the said securities are of the same class as the securities already admitted to trading on the same regulated market and that a document is made available containing information on the number and nature of the securities and the reasons for and detail of the offer;
(g) shares resulting from the conversion or exchange of other securities or from the exercise of the rights conferred by other securities, provided that the said shares are of the same class as the shares already admitted to trading on the same regulated market;
(h) securities already admitted to trading on another regulated market, on the following conditions:
(i) that these securities, or securities of the same class, have been admitted to trading on that other regulated market for more than 18 months;
(ii) that, for securities first admitted to trading on a regulated market after the date of entry into force of this Directive, the admission to trading on that other regulated market was associated with an approved prospectus made available to the public in conformity with Article 14;
(iii) that, except where (ii) applies, for securities first admitted to listing after 30 June 1983, listing particulars were approved in accordance with the requirements of Directive 80/390/EEC or Directive 2001/34/EC;
(iv) that the ongoing obligations for trading on that other regulated market have been fulfilled;
(v) that the person seeking the admission of a security to trading on a regulated market under this exemption makes a summary document available to the public in a language accepted by the competent authority of the Member State of the regulated market where admission is sought;
(vi) that the summary document referred to in (v) is made available to the public in the Member State of the regulated market where admission to trading is sought in the manner set out in Article 14(2); and
(vii) that the contents of the summary document shall comply with Article 5(2). Furthermore the document shall state where the most recent prospectus can be obtained and where the financial information published by the issuer pursuant to his ongoing disclosure obligations is available.
3. In order to take account of technical developments on financial markets and to ensure uniform application of this Directive, the Commission shall, in accordance with the procedure referred to in Article 24(2), adopt implementing measures concerning paragraphs 1(b), 1(c), 2(c) and 2(d), notably in relation to the meaning of equivalence.
CHAPTER II DRAWING UP OF THE PROSPECTUS
Article 5
The prospectus
1. Without prejudice to Article 8(2), the prospectus shall contain all information which, according to the particular nature of the issuer and of the securities offered to the public or admitted to trading on a regulated market, is necessary to enable investors to make an informed assessment of the assets and liabilities, financial position, profit and losses, and prospects of the issuer and of any guarantor, and of the rights attaching to such securities. This information shall be presented in an easily analysable and comprehensible form.
2. The prospectus shall contain information concerning the issuer and the securities to be offered to the public or to be admitted to trading on a regulated market. It shall also include a summary. The summary shall, in a brief manner and in non-technical language, convey the essential characteristics and risks associated with the issuer, any guarantor and the securities, in the language in which the prospectus was originally drawn up. The summary shall also contain a warning that:
(a) it should be read as an introduction to the prospectus;
(b) any decision to invest in the securities should be based on consideration of the prospectus as a whole by the investor;
(c) where a claim relating to the information contained in a prospectus is brought before a court, the plaintiff investor might, under the national legislation of the Member States, have to bear the costs of translating the prospectus before the legal proceedings are initiated; and
(d) civil liability attaches to those persons who have tabled the summary including any translation thereof, and applied for its notification, but only if the summary is misleading, inaccurate or inconsistent when read together with the other parts of the prospectus.
Where the prospectus relates to the admission to trading on a regulated market of non-equity securities having a denomination of at least EUR 50000, there shall be no requirement to provide a summary except when requested by a Member State as provided for in Article 19(4).
3. Subject to paragraph 4, the issuer, offeror or person asking for the admission to trading on a regulated market may draw up the prospectus as a single document or separate documents. A prospectus composed of separate documents shall divide the required information into a registration document, a securities note and a summary note. The registration document shall contain the information relating to the issuer. The securities note shall contain the information concerning the securities offered to the public or to be admitted to trading on a regulated market.
4. For the following types of securities, the prospectus can, at the choice of the issuer, offeror or person asking for the admission to trading on a regulated market consist of a base prospectus containing all relevant information concerning the issuer and the securities offered to the public or to be admitted to trading on a regulated market:
(a) non-equity securities, including warrants in any form, issued under an offering programme;
(b) non-equity securities issued in a continuous or repeated manner by credit institutions,
(i) where the sums deriving from the issue of the said securities, under national legislation, are placed in assets which provide sufficient coverage for the liability deriving from securities until their maturity date;
(ii) where, in the event of the insolvency of the related credit institution, the said sums are intended, as a priority, to repay the capital and interest falling due, without prejudice to the provisions of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions(14).
The information given in the base prospectus shall be supplemented, if necessary, in accordance with Article 16, with updated information on the issuer and on the securities to be offered to the public or to be admitted to trading on a regulated market.
If the final terms of the offer are not included in either the base prospectus or a supplement, the final terms shall be provided to investors and filed with the competent authority when each public offer is made as soon as practicable and if possible in advance of the beginning of the offer. The provisions of Article 8(1)(a) shall be applicable in any such case.
5. In order to take account of technical developments on financial markets and to ensure uniform application of this Directive, the Commission shall, in accordance with the procedure referred to in Article 24(2), adopt implementing measures concerning the format of the prospectus or base prospectus and supplements.
Article 6
Responsibility attaching to the prospectus
1. Member States shall ensure that responsibility for the information given in a prospectus attaches at least to the issuer or its administrative, management or supervisory bodies, the offeror, the person asking for the admission to trading on a regulated market or the guarantor, as the case may be. The persons responsible shall be clearly identified in the prospectus by their names and functions or, in the case of legal persons, their names and registered offices, as well as declarations by them that, to the best of their knowledge, the information contained in the prospectus is in accordance with the facts and that the prospectus makes no omission likely to affect its import.
2. Member States shall ensure that their laws, regulation and administrative provisions on civil liability apply to those persons responsible for the information given in a prospectus.
However, Member States shall ensure that no civil liability shall attach to any person solely on the basis of the summary, including any translation thereof, unless it is misleading, inaccurate or inconsistent when read together with the other parts of the prospectus.
Article 7
Minimum information
1. Detailed implementing measures regarding the specific information which must be included in a prospectus, avoiding duplication of information when a prospectus is composed of separate documents, shall be adopted by the Commission in accordance with the procedure referred to in Article 24(2). The first set of implementing measures shall be adopted by 1 July 2004.
2. In particular, for the elaboration of the various models of prospectuses, account shall be taken of the following:
(a) the various types of information needed by investors relating to equity securities as compared with non-equity securities; a consistent approach shall be taken with regard to information required in a prospectus for securities which have a similar economic rationale, notably derivative securities;
(b) the various types and characteristics of offers and admissions to trading on a regulated market of non-equity securities. The information required in a prospectus shall be appropriate from the point of view of the investors concerned for non-equity securities having a denomination per unit of at least EUR 50000;
(c) the format used and the information required in prospectuses relating to non-equity securities, including warrants in any form, issued under an offering programme;
(d) the format used and the information required in prospectuses relating to non-equity securities, in so far as these securities are not subordinated, convertible, exchangeable, subject to subscription or acquisition rights or linked to derivative instruments, issued in a continuous or repeated manner by entities authorised or regulated to operate in the financial markets within the European Economic Area;
(e) the various activities and size of the issuer, in particular SMEs. For such companies the information shall be adapted to their size and, where appropriate, to their shorter track record;
(f) if applicable, the public nature of the issuer.
3. The implementing measures referred to in paragraph 1 shall be based on the standards in the field of financial and non-financial information set out by international securities commission organisations, and in particular by IOSCO and on the indicative Annexes to this Directive.
Article 8
Omission of information
1. Member States shall ensure that where the final offer price and amount of securities which will be offered to the public cannot be included in the prospectus:
(a) the criteria, and/or the conditions in accordance with which the above elements will be determined or, in the case of price, the maximum price, are disclosed in the prospectus; or
(b) the acceptances of the purchase or subscription of securities may be withdrawn for not less than two working days after the final offer price and amount of securities which will be offered to the public have been filed.
The final offer price and amount of securities shall be filed with the competent authority of the home Member State and published in accordance with the arrangements provided for in Article 14(2).
2. The competent authority of the home Member State may authorise the omission from the prospectus of certain information provided for in this Directive or in the implementing measures referred to in Article 7(1), if it considers that:
(a) disclosure of such information would be contrary to the public interest; or
(b) disclosure of such information would be seriously detrimental to the issuer, provided that the omission would not be likely to mislead the public with regard to facts and circumstances essential for an informed assessment of the issuer, offeror or guarantor, if any, and of the rights attached to the securities to which the prospectus relates; or
(c) such information is of minor importance only for a specific offer or admission to trading on a regulated market and is not such as will influence the assessment of the financial position and prospects of the issuer, offeror or guarantor, if any.
3. Without prejudice to the adequate information of investors, where, exceptionally, certain information required by implementing measures referred to in Article 7(1) to be included in a prospectus is inappropriate to the issuer's sphere of activity or to the legal form of the issuer or to the securities to which the prospectus relates, the prospectus shall contain information equivalent to the required information. If there is no such information, this requirement shall not apply.
4. In order to take account of technical developments on financial markets and to ensure uniform application of this Directive, the Commission shall, in accordance with the procedure referred to in Article 24(2), adopt implementing measures concerning paragraph 2.
Article 9
Validity of a prospectus, base prospectus and registration document
1. A prospectus shall be valid for 12 months after its publication for offers to the public or admissions to trading on a regulated market, provided that the prospectus is completed by any supplements required pursuant to Article 16.
2. In the case of an offering programme, the base prospectus, previously filed, shall be valid for a period of up to 12 months.
3. In the case of non-equity securities referred to in Article 5(4)(b), the prospectus shall be valid until no more of the securities concerned are issued in a continuous or repeated manner.
4. A registration document, as referred to in Article 5(3), previously filed, shall be valid for a period of up to 12 months provided that it has been updated in accordance with Article 10(1). The registration document accompanied by the securities note, updated if applicable in accordance with Article 12, and the summary note shall be considered to constitute a valid prospectus.
Article 10
Information
1. Issuers whose securities are admitted to trading on a regulated market shall at least annually provide a document that contains or refers to all information that they have published or made available to the public over the preceding 12 months in one or more Member States and in third countries in compliance with their obligations under Community and national laws and rules dealing with the regulation of securities, issuers of securities and securities markets. Issuers shall refer at least to the information required pursuant to company law directives, Directive 2001/34/EC and Regulation (EC) No 1606/2002 of the European Parliament and of the Council of 19 July 2002 on the application of international accounting standards(15).
2. The document shall be filed with the competent authority of the home Member State after the publication of the financial statement. Where the document refers to information, it shall be stated where the information can be obtained.
3. The obligation set out in paragraph 1 shall not apply to issuers of non-equity securities whose denomination per unit amounts to at least EUR 50000.
4. In order to take account of technical developments on financial markets and to ensure uniform application of this Directive, the Commission may, in accordance with the procedure referred to in Article 24(2), adopt implementing measures concerning paragraph 1. These measures will relate only to the method of publication of the disclosure requirements mentioned in paragraph 1 and will not entail new disclosure requirements. The first set of implementing measures shall be adopted by 1 July 2004.
Article 11
Incorporation by reference
1. Member States shall allow information to be incorporated in the prospectus by reference to one or more previously or simultaneously published documents that have been approved by the competent authority of the home Member State or filed with it in accordance with this Directive, in particular pursuant to Article 10, or with Titles IV and V of Directive 2001/34/EC. This information shall be the latest available to the issuer. The summary shall not incorporate information by reference.
2. When information is incorporated by reference, a cross-reference list must be provided in order to enable investors to identify easily specific items of information.
3. In order to take account of technical developments on financial markets and to ensure uniform application of this Directive, the Commission shall, in accordance with the procedure referred to in Article 24(2), adopt implementing measures concerning the information to be incorporated by reference. The first set of implementing measures shall be adopted by 1 July 2004.
Article 12
Prospectuses consisting of separate documents
1. An issuer which already has a registration document approved by the competent authority shall be required to draw up only the securities note and the summary note when securities are offered to the public or admitted to trading on a regulated market.
2. In this case, the securities note shall provide information that would normally be provided in the registration document if there has been a material change or recent development which could affect investors' assessments since the latest updated registration document or any supplement as provided for in Article 16 was approved. The securities and summary notes shall be subject to a separate approval.
3. Where an issuer has only filed a registration document without approval, the entire documentation, including updated information, shall be subject to approval.
CHAPTER III ARRANGEMENTS FOR APPROVAL AND PUBLICATION OF THE PROSPECTUS
Article 13
Approval of the prospectus
1. No prospectus shall be published until it has been approved by the competent authority of the home Member State.
2. This competent authority shall notify the issuer, the offeror or the person asking for admission to trading on a regulated market, as the case may be, of its decision regarding the approval of the prospectus within 10 working days of the submission of the draft prospectus.
If the competent authority fails to give a decision on the prospectus within the time limits laid down in this paragraph and paragraph 3, this shall not be deemed to constitute approval of the application.
3. The time limit referred to in paragraph 2 shall be extended to 20 working days if the public offer involves securities issued by an issuer which does not have any securities admitted to trading on a regulated market and who has not previously offered securities to the public.
4. If the competent authority finds, on reasonable grounds, that the documents submitted to it are incomplete or that supplementary information is needed, the time limits referred to in paragraphs 2 and 3 shall apply only from the date on which such information is provided by the issuer, the offeror or the person asking for admission to trading on a regulated market.
In the case referred to in paragraph 2 the competent authority should notify the issuer if the documents are incomplete within 10 working days of the submission of the application.
5. The competent authority of the home Member State may transfer the approval of a prospectus to the competent authority of another Member State, subject to the agreement of that authority. Furthermore, this transfer shall be notified to the issuer, the offeror or the person asking for admission to trading on a regulated market within three working days from the date of the decision taken by the competent authority of the home Member State. The time limit referred to in paragraph 2 shall apply from that date.
6. This Directive shall not affect the competent authority's liability, which shall continue to be governed solely by national law.
Member States shall ensure that their national provisions on the liability of competent authorities apply only to approvals of prospectuses by their competent authority or authorities.
7. In order to take account of technical developments on financial markets and to ensure uniform application of this Directive, the Commission may, in accordance with the procedure referred to in Article 24(2), adopt implementing measures concerning the conditions in accordance with which time limits may be adjusted.
Article 14
Publication of the prospectus
1. Once approved, the prospectus shall be filed with the competent authority of the home Member State and shall be made available to the public by the issuer, offeror or person asking for admission to trading on a regulated market as soon as practicable and in any case, at a reasonable time in advance of, and at the latest at the beginning of, the offer to the public or the admission to trading of the securities involved. In addition, in the case of an initial public offer of a class of shares not already admitted to trading on a regulated market that is to be admitted to trading for the first time, the prospectus shall be available at least six working days before the end of the offer.
2. The prospectus shall be deemed available to the public when published either:
(a) by insertion in one or more newspapers circulated throughout, or widely circulated in, the Member States in which the offer to the public is made or the admission to trading is sought; or
(b) in a printed form to be made available, free of charge, to the public at the offices of the market on which the securities are being admitted to trading, or at the registered office of the issuer and at the offices of the financial intermediaries placing or selling the securities, including paying agents; or
(c) in an electronic form on the issuer's website and, if applicable, on the website of the financial intermediaries placing or selling the securities, including paying agents; or
(d) in an electronic form on the website of the regulated market where the admission to trading is sought; or
(e) in electronic form on the website of the competent authority of the home Member State if the said authority has decided to offer this service.
A home Member State may require issuers which publish their prospectus in accordance with (a) or (b) also to publish their prospectus in an electronic form in accordance with (c).
3. In addition, a home Member State may require publication of a notice stating how the prospectus has been made available and where it can be obtained by the public.
4. The competent authority of the home Member State shall publish on its website over a period of 12 months, at its choice, all the prospectuses approved, or at least the list of prospectuses approved in accordance with Article 13, including, if applicable, a hyperlink to the prospectus published on the website of the issuer, or on the website of the regulated market.
5. In the case of a prospectus comprising several documents and/or incorporating information by reference, the documents and information making up the prospectus may be published and circulated separately provided that the said documents are made available, free of charge, to the public, in accordance with the arrangements established in paragraph 2. Each document shall indicate where the other constituent documents of the full prospectus may be obtained.
6. The text and the format of the prospectus, and/or the supplements to the prospectus, published or made available to the public, shall at all times be identical to the original version approved by the competent authority of the home Member State.
7. Where the prospectus is made available by publication in electronic form, a paper copy must nevertheless be delivered to the investor, upon his request and free of charge, by the issuer, the offeror, the person asking for admission to trading or the financial intermediaries placing or selling the securities.
8. In order to take account of technical developments on financial markets and to ensure uniform application of the Directive, the Commission shall, in accordance with the procedure referred to in Article 24(2), adopt implementing measures concerning paragraphs 1, 2, 3 and 4. The first set of implementing measures shall be adopted by 1 July 2004.
Article 15
Advertisements
1. Any type of advertisements relating either to an offer to the public of securities or to an admission to trading on a regulated market shall observe the principles contained in paragraphs 2 to 5. Paragraphs 2 to 4 shall apply only to cases where the issuer, the offeror or the person applying for admission to trading is covered by the obligation to draw up a prospectus.
2. Advertisements shall state that a prospectus has been or will be published and indicate where investors are or will be able to obtain it.
3. Advertisements shall be clearly recognisable as such. The information contained in an advertisement shall not be inaccurate, or misleading. This information shall also be consistent with the information contained in the prospectus, if already published, or with the information required to be in the prospectus, if the prospectus is published afterwards.
4. In any case, all information concerning the offer to the public or the admission to trading on a regulated market disclosed in an oral or written form, even if not for advertising purposes, shall be consistent with that contained in the prospectus.
5. When according to this Directive no prospectus is required, material information provided by an issuer or an offeror and addressed to qualified investors or special categories of investors, including information disclosed in the context of meetings relating to offers of securities, shall be disclosed to all qualified investors or special categories of investors to whom the offer is exclusively addressed. Where a prospectus is required to be published, such information shall be included in the prospectus or in a supplement to the prospectus in accordance with Article 16(1).
6. The competent authority of the home Member State shall have the power to exercise control over the compliance of advertising activity, relating to a public offer of securities or an admission to trading on a regulated market, with the principles referred to in paragraphs 2 to 5.
7. In order to take account of technical developments on financial markets and to ensure uniform application of this Directive, the Commission shall, in accordance with the procedure referred to in Article 24(2), adopt implementing measures concerning the dissemination of advertisements announcing the intention to offer securities to the public or the admission to trading on a regulated market, in particular before the prospectus has been made available to the public or before the opening of the subscription, and concerning paragraph 4. The first set of implementing measures shall be adopted by the Commission by 1 July 2004.
Article 16
Supplements to the prospectus
1. Every significant new factor, material mistake or inaccuracy relating to the information included in the prospectus which is capable of affecting the assessment of the securities and which arises or is noted between the time when the prospectus is approved and the final closing of the offer to the public or, as the case may be, the time when trading on a regulated market begins, shall be mentioned in a supplement to the prospectus. Such a supplement shall be approved in the same way in a maximum of seven working days and published in accordance with at least the same arrangements as were applied when the original prospectus was published. The summary, and any translations thereof, shall also be supplemented, if necessary to take into account the new information included in the supplement.
2. Investors who have already agreed to purchase or subscribe for the securities before the supplement is published shall have the right, exercisable within a time limit which shall not be shorter than two working days after the publication of the supplement, to withdraw their acceptances.
CHAPTER IV CROSS-BORDER OFFERS AND ADMISSION TO TRADING
Article 17
Community scope of approvals of prospectuses
1. Without prejudice to Article 23, where an offer to the public or admission to trading on a regulated market is provided for in one or more Member States, or in a Member State other than the home Member State, the prospectus approved by the home Member State and any supplements thereto shall be valid for the public offer or the admission to trading in any number of host Member States, provided that the competent authority of each host Member State is notified in accordance with Article 18. Competent authorities of host Member States shall not undertake any approval or administrative procedures relating to prospectuses.
2. If there are significant new factors, material mistakes or inaccuracies, as referred to in Article 16, arising since the approval of the prospectus, the competent authority of the home Member State shall require the publication of a supplement to be approved as provided for in Article 13(1). The competent authority of the host Member State may draw the attention of the competent authority of the home Member State to the need for any new information.
Article 18
Notification
1. The competent authority of the home Member State shall, at the request of the issuer or the person responsible for drawing up the prospectus and within three working days following that request or, if the request is submitted together with the draft prospectus, within one working day after the approval of the prospectus provide the competent authority of the host Member State with a certificate of approval attesting that the prospectus has been drawn up in accordance with this Directive and with a copy of the said prospectus. If applicable, this notification shall be accompanied by a translation of the summary produced under the responsibility of the issuer or person responsible for drawing up the prospectus. The same procedure shall be followed for any supplement to the prospectus.
2. The application of the provisions of Article 8(2) and (3) shall be stated in the certificate, as well as its justification.
CHAPTER V USE OF LANGUAGES AND ISSUERS INCORPORATED IN THIRD COUNTRIES
Article 19
Use of languages
1. Where an offer to the public is made or admission to trading on a regulated market is sought only in the home Member State, the prospectus shall be drawn up in a language accepted by the competent authority of the home Member State.
2. Where an offer to the public is made or admission to trading on a regulated market is sought in one or more Member States excluding the home Member State, the prospectus shall be drawn up either in a language accepted by the competent authorities of those Member States or in a language customary in the sphere of international finance, at the choice of the issuer, offeror or person asking for admission, as the case may be. The competent authority of each host Member State may only require that the summary be translated into its official language(s).
For the purpose of the scrutiny by the competent authority of the home Member State, the prospectus shall be drawn up either in a language accepted by this authority or in a language customary in the sphere of international finance, at the choice of the issuer, offeror or person asking for admission to trading, as the case may be.
3. Where an offer to the public is made or admission to trading on a regulated market is sought in more than one Member State including the home Member State, the prospectus shall be drawn up in a language accepted by the competent authority of the home Member State and shall also be made available either in a language accepted by the competent authorities of each host Member State or in a language customary in the sphere of international finance, at the choice of the issuer, offeror, or person asking for admission to trading, as the case may be. The competent authority of each host Member State may only require that the summary referred to in Article 5(2) be translated into its official language(s).
4. Where admission to trading on a regulated market of non-equity securities whose denomination per unit amounts to at least EUR 50000 is sought in one or more Member States, the prospectus shall be drawn up either in a language accepted by the competent authorities of the home and host Member States or in a language customary in the sphere of international finance, at the choice of the issuer, offeror or person asking for admission to trading, as the case may be. Member States may choose to require in their national legislation that a summary be drawn up in their official language(s).
Article 20
Issuers incorporated in third countries
1. The competent authority of the home Member State of issuers having their registered office in a third country may approve a prospectus for an offer to the public or for admission to trading on a regulated market, drawn up in accordance with the legislation of a third country, provided that:
(a) the prospectus has been drawn up in accordance with international standards set by international securities commission organisations, including the IOSCO disclosure standards;
(b) the information requirements, including information of a financial nature, are equivalent to the requirements under this Directive.
2. In the case of an offer to the public or admission to trading on a regulated market of securities, issued by an issuer incorporated in a third country, in a Member State other than the home Member State, the requirements set out in Articles 17, 18 and 19 shall apply.
3. In order to ensure uniform application of this Directive, the Commission may adopt implementing measures in accordance with the procedure referred to in Article 24(2), stating that a third country ensures the equivalence of prospectuses drawn up in that country with this Directive, by reason of its national law or of practices or procedures based on international standards set by international organisations, including the IOSCO disclosure standards.
CHAPTER VI COMPETENT AUTHORITIES
Article 21
Powers
1. Each Member State shall designate a central competent administrative authority responsible for carrying out the obligations provided for in this Directive and for ensuring that the provisions adopted pursuant to this Directive are applied.
However, a Member State may, if so required by national law, designate other administrative authorities to apply Chapter III.
These competent authorities shall be completely independent from all market participants.
If an offer of securities is made to the public or admission to trading on a regulated market is sought in a Member State other than the home Member State, only the central competent administrative authority designated by each Member State shall be entitled to approve the prospectus.
2. Member States may allow their competent authority or authorities to delegate tasks. Except for delegation of the publication on the Internet of approved prospectuses and the filing of prospectuses as mentioned in Article 14, any delegation of tasks relating to the obligations provided for in this Directive and in its implementing measures shall be reviewed, in accordance with Article 31 by 31 December 2008, and shall end on 31 December 2011. Any delegation of tasks to entities other than the authorities referred to in paragraph 1 shall be made in a specific manner stating the tasks to be undertaken and the conditions under which they are to be carried out.
These conditions shall include a clause obliging the entity in question to act and be organised in such a manner as to avoid conflict of interest and so that information obtained from carrying out the delegated tasks is not used unfairly or to prevent competition. In any case, the final responsibility for supervising compliance with this Directive and with its implementing measures and for approving the prospectus shall lie with the competent authority or authorities designated in accordance with paragraph 1.
Member States shall inform the Commission and the competent authorities of other Member States of any arrangements entered into with regard to delegation of tasks, including the precise conditions regulating such delegation.
3. Each competent authority shall have all the powers necessary for the performance of its functions. A competent authority that has received an application for approving a prospectus shall be empowered at least to:
(a) require issuers, offerors or persons asking for admission to trading on a regulated market to include in the prospectus supplementary information, if necessary for investor protection;
(b) require issuers, offerors or persons asking for admission to trading on a regulated market, and the persons that control them or are controlled by them, to provide information and documents;
(c) require auditors and managers of the issuer, offeror or person asking for admission to trading on a regulated market, as well as financial intermediaries commissioned to carry out the offer to the public or ask for admission to trading, to provide information;
(d) suspend a public offer or admission to trading for a maximum of 10 consecutive working days on any single occasion if it has reasonable grounds for suspecting that the provisions of this Directive have been infringed;
(e) prohibit or suspend advertisements for a maximum of 10 consecutive working days on any single occasion if it has reasonable grounds for believing that the provisions of this Directive have been infringed;
(f) prohibit a public offer if it finds that the provisions of this Directive have been infringed or if it has reasonable grounds for suspecting that they would be infringed;
(g) suspend or ask the relevant regulated markets to suspend trading on a regulated market for a maximum of 10 consecutive working days on any single occasion if it has reasonable grounds for believing that the provisions of this Directive have been infringed;
(h) prohibit trading on a regulated market if it finds that the provisions of this Directive have been infringed;
(i) make public the fact that an issuer is failing to comply with its obligations.
Where necessary under national law, the competent authority may ask the relevant judicial authority to decide on the use of the powers referred to in points (d) to (h) above.
4. Each competent authority shall also, once the securities have been admitted to trading on a regulated market, be empowered to:
(a) require the issuer to disclose all material information which may have an effect on the assessment of the securities admitted to trading on regulated markets in order to ensure investor protection or the smooth operation of the market;
(b) suspend or ask the relevant regulated market to suspend the securities from trading if, in its opinion, the issuer's situation is such that trading would be detrimental to investors' interests;
(c) ensure that issuers whose securities are traded on regulated markets comply with the obligations provided for in Articles 102 and 103 of Directive 2001/34/EC and that equivalent information is provided to investors and equivalent treatment is granted by the issuer to all securities holders who are in the same position, in all Member States where the offer to the public is made or the securities are admitted to trading;
(d) carry out on-site inspections in its territory in accordance with national law, in order to verify compliance with the provisions of this Directive and its implementing measures. Where necessary under national law, the competent authority or authorities may use this power by applying to the relevant judicial authority and/or in cooperation with other authorities.
5. Paragraphs 1 to 4 shall be without prejudice to the possibility for a Member State to make separate legal and administrative arrangements for overseas European territories for whose external relations that Member State is responsible.
Article 22
Professional secrecy and cooperation between authorities
1. The obligation of professional secrecy shall apply to all persons who work or have worked for the competent authority and for entities to which competent authorities may have delegated certain tasks. Information covered by professional secrecy may not be disclosed to any other person or authority except in accordance with provisions laid down by law.
2. Competent authorities of Member States shall cooperate with each other whenever necessary for the purpose of carrying out their duties and making use of their powers. Competent authorities shall render assistance to competent authorities of other Member States. In particular, they shall exchange information and cooperate when an issuer has more than one home competent authority because of its various classes of securities, or where the approval of a prospectus has been transferred to the competent authority of another Member State pursuant to Article 13(5). They shall also closely cooperate when requiring suspension or prohibition of trading for securities traded in various Member States in order to ensure a level playing field between trading venues and protection of investors. Where appropriate, the competent authority of the host Member State may request the assistance of the competent authority of the home Member State from the stage at which the case is scrutinised, in particular as regards a new type or rare forms of securities. The competent authority of the home Member State may ask for information from the competent authority of the host Member State on any items specific to the relevant market.
Without prejudice to Article 21, the competent authorities of Member States may consult with operators of regulated markets as necessary and, in particular, when deciding to suspend, or to ask a regulated market to suspend or prohibit trading.
3. Paragraph 1 shall not prevent the competent authorities from exchanging confidential information. Information thus exchanged shall be covered by the obligation of professional secrecy, to which the persons employed or formerly employed by the competent authorities receiving the information are subject.
Article 23
Precautionary measures
1. Where the competent authority of the host Member State finds that irregularities have been committed by the issuer or by the financial institutions in charge of the public offer or that breaches have been committed of the obligations attaching to the issuer by reason of the fact that the securities are admitted to trading on a regulated market, it shall refer these findings to the competent authority of the home Member State.
2. If, despite the measures taken by the competent authority of the home Member State or because such measures prove inadequate, the issuer or the financial institution in charge of the public offer persists in breaching the relevant legal or regulatory provisions, the competent authority of the host Member State, after informing the competent authority of the home Member State, shall take all the appropriate measures in order to protect investors. The Commission shall be informed of such measures at the earliest opportunity.
CHAPTER VII IMPLEMENTING MEASURES
Article 24
Committee procedure
1. The Commission shall be assisted by the European Securities Committee, instituted by Decision 2001/528/EC (hereinafter referred to as "the Committee").
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 and provided that the implementing measures adopted in accordance with this procedure do not modify the essential provisions of this Directive.
The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.
3. The Committee shall adopt its rules of procedure.
4. Without prejudice to the implementing measures already adopted, on the expiry of a four-year period following the entry into force of this Directive the application of its provisions providing for the adoption of technical rules and decisions in accordance with the procedure referred to in paragraph 2 shall be suspended. On a proposal from the Commission, the European Parliament and the Council may renew the provisions concerned in accordance with the procedure laid down in Article 251 of the Treaty and, to that end, shall review them prior to the expiry of the four-year period.
Article 25
Sanctions
1. Without prejudice to the right of Member States to impose criminal sanctions and without prejudice to their civil liability regime, Member States shall ensure, in conformity with their national law, that the appropriate administrative measures can be taken or administrative sanctions be imposed against the persons responsible, where the provisions adopted in the implementation of this Directive have not been complied with. Member States shall ensure that these measures are effective, proportionate and dissuasive.
2. Member States shall provide that the competent authority may disclose to the public every measure or sanction that has been imposed for infringement of the provisions adopted pursuant to this Directive, unless the disclosure would seriously jeopardise the financial markets or cause disproportionate damage to the parties involved.
Article 26
Right of appeal
Member States shall ensure that decisions taken pursuant to laws, regulations and administrative provisions adopted in accordance with this Directive are subject to the right to appeal to the courts.
CHAPTER VIII TRANSITIONAL AND FINAL PROVISIONS
Article 27
Amendments
With effect from the date set out in Article 29, Directive 2001/34/EC is hereby amended as follows:
1. Articles 3, 20 to 41, 98 to 101, 104 and 108(2)(c)(ii) shall be deleted;
2. in Article 107(3), the first subparagraph shall be deleted;
3. in Article 108(2)(a), the words "the conditions of establishment, the control and circulation of listing particulars to be published for admission" shall be deleted;
4. Annex I shall be deleted.
Article 28
Repeal
With effect from the date indicated in Article 29, Directive 89/298/EEC shall be repealed. References to the repealed Directive shall be construed as references to this Directive.
Article 29
Transposition
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 1 July 2005. They shall forthwith inform the Commission thereof. When Member States adopt those measures they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods for making such reference shall be laid down by Member States.
Article 30
Transitional provision
1. Issuers which are incorporated in a third country and whose securities have already been admitted to trading on a regulated market shall choose their competent authority in accordance with Article 2(1)(m)(iii) and notify their decision to the competent authority of their chosen home Member State by 31 December 2005.
2. By way of derogation from Article 3, Member States which have used the exemption in Article 5(a) of Directive 89/298/EEC may continue to allow credit institutions or other financial institutions equivalent to credit institutions which are not covered by Article 1(2)(j) of this Directive to offer debt securities or other transferable securities equivalent to debt securities issued in a continuous or repeated manner within their territory for five years following the date of entry into force of this Directive.
3. By way of derogation from Article 29, the Federal Republic of Germany shall comply with Article 21(1) by 31 December 2008.
Article 31
Review
Five years after the date of entry into force of this Directive, the Commission shall make an assessment of the application of this Directive and present a report to the European Parliament and the Council, accompanied where appropriate by proposals for its review.
Article 32
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.
Article 33
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 4 November 2003. | [
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COUNCIL DECISION of 20 November 1997 appointing a member of the Economic and Social Committee (97/791/EC, Euratom)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 194 thereof,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 166 thereof,
Having regard to the Council Decision of 26 September 1994 appointing the members of the Economic and Social Committee for the period up to 20 September 1998 (1),
Whereas a set as a member of that committee has fallen vacant following the resignation of Mr Henri Bordes-Pages, of which the Council was notified on 21 January 1997;
Having regard to the nominations submitted by the French Government,
Having obtained the opinion of the Commission of the European Communities,
HAS DECIDED AS FOLLOWS:
Sole Article
Mr Claude Cambus is hereby appointed a member of the Economic and Social Committee in place of Mr Henri Bordes-Pages for the remainder of the latter's term of office, which runs until 20 September 1998.
Done at Brussels, 20 November 1997. | [
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COMMISSION DECISION of 30 January 1981 on the list of establishments in the Republic of Uruguay approved for the purposes of the importation of fresh beef and veal, sheepmeat and meat of domestic solipeds into the Community (81/92/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries (1), and in particular Articles 4 (1) and 18 (1) (a) and (b) thereof,
Whereas establishments in non-member countries cannot be authorized to export fresh meat to the Community unless they satisfy the general and special conditions laid down in Directive 72/462/EEC;
Whereas Uruguay has forwarded, in accordance with Article 4 (3) of Directive 72/462/EEC, a list of the establishments authorized to export to the Community;
Whereas Community on-the-spot inspections have shown that the hygiene standards of many of these establishments are sufficient and they may therefore be entered on a first list, drawn up in accordance with Article 4 (1) of the said Directive, of establishments from which importation of fresh meat may be authorized;
Whereas the case of the other establishments proposed by Uruguay must be re-examined on the basis of additional information regarding their hygiene standards and their ability to adapt quickly to the relevant Community legislation ; whereas, in the meantime and so as to avoid any abrupt interruption of existing trade flows, these establishments may be authorized temporarily to continue their exports of fresh meat to those Member States prepared to accept them;
Whereas it will therefore be necessary to re-examine and, if necessary, amend this Decision in the light of steps taken to this end and improvements made;
Whereas it should be recalled that imports of fresh meat are also subject to other Community veterinary legislation, particularly as regards health protection requirements, including the special provisions in respect of Denmark, Ireland and the United Kingdom;
Whereas the conditions of importation of fresh meat from establishments appearing on the list annexed to this Decision remain subject to Community provisions laid down elsewhere and to the general provisions of the Treaty ; whereas, in particular, the importation from non-member countries and the re-exportation to other Member States of certain categories of meat, such as meat weighing less than 3 kilograms, or meat containing residues of certain substances which are not yet covered by special harmonized rules, remain subject to the health legislation of the importing Member State;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
1. The establishments in the Republic of Uruguay listed in the Annex are hereby approved for the purposes of the importation of fresh beef and veal, sheepmeat and meat of domestic solipeds into the Community.
2. Imports from those establishments shall remain subject to the Community veterinary provisions laid down elsewhere, and in particular those concerning health protection requirements.
Article 2
1. Member States shall prohibit imports of the categories of fresh meat referred to in Article 1 (1) coming from establishments other than those listed in the Annex.
2. This prohibition, however, shall not apply until 31 August 1981 to establishments which are not listed in the Annex but which have been officially approved and proposed by the Uruguayan authorities as of 1 September 1980, pursuant to Article 4 (3) of Directive 72/462/EEC, unless a decision is taken to the contrary, in accordance with Article 4 (1) of the abovementioned Directive, before 1 September 1981.
(1) OJ No L 302, 31.12.1972, p. 28. The Commission shall forward the list of these establishments to the Member States.
Article 3
This Decision shall enter into force on 1 February 1981.
Article 4
This Decision shall be reviewed and if necessary amended before 1 July 1981.
Article 5
This Decision is addressed to the Member States.
Done at Brussels, 30 January 1981. | [
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COMMISSION DECISION
of 3 March 2006
authorising the placing on the market of food containing, consisting of, or produced from genetically modified maize line 1507 (DAS-Ø15Ø7-1) pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of the Council
(2006/197/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed (1), and in particular Article 7(3) thereof,
Whereas:
(1)
On 15 February 2001, Pioneer Overseas Corporation and Dow AgroSciences Europe jointly submitted to the competent authorities of the Netherlands a request, in accordance with Article 4 of Regulation (EC) No 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients (2), for the placing on the market of foods and food ingredients derived from genetically modified maize line 1507 as novel foods or as novel food ingredients (the products).
(2)
In their initial assessment report of 4 November 2003, the Netherlands competent food assessment body concluded that the products are just as safe as foods and food ingredients derived from conventional maize lines and may be used in the same manner.
(3)
The Commission forwarded the initial assessment report to all Member States on 10 November 2003. Within the 60-day period laid down in Article 6(4) of Regulation (EC) No 258/97, reasoned objections to the placing on the market of the products were raised in accordance with that provision. As a consequence, an additional assessment report was required.
(4)
Article 46(1) of Regulation (EC) No 1829/2003 (hereinafter referred to as the Regulation) provides that requests submitted pursuant to Article 4 of Regulation (EC) No 258/97 before the date of application of the Regulation, i.e. 18 April 2004, shall be transformed into applications pursuant to Chapter II, Section 1 of the Regulation in cases where an additional assessment report is required in accordance with Article 6(3) or (4) of Regulation (EC) No 258/97.
(5)
The scope of Regulation (EC) No 258/97 is limited to the placing on the market, within the Community, of novel foods or novel food ingredients. Consequently the present decision does not cover the placing on the market of feed containing, consisting of or produced from maize line 1507.
(6)
In particular, the placing on the market of genetically modified maize line 1507 as or in some products including feed containing or consisting of this maize is subject to Commission Decision 2005/772/EC of 3 November 2005 concerning the placing on the market, in accordance with Directive 2001/18/EC of the European Parliament and of the Council, of a maize product (Zea mays L., line 1507) genetically modified for resistance to certain lepidopteran pests and for tolerance to the herbicide glufosinate-ammonium (3).
(7)
Feed produced from maize line 1507 has been placed on the market before the date of application of the Regulation, i.e. 18 April 2004. As a consequence, it is subject to the requirements provided for in Article 20 of the Regulation and may be placed on the market and used in accordance with the conditions laid down in the Community Register of genetically modified food and feed.
(8)
On 3 March 2005, the European Food Safety Authority (Authority) gave its opinion in accordance with Article 6 of the Regulation that there is no evidence to indicate that the placing on the market of the products is likely to cause adverse effects on human or animal health or the environment (4). In giving its opinion, the Authority considered all specific questions and concerns raised by the Member States.
(9)
Accordingly, the Authority advised that no specific labelling requirements other than those provided for in Article 13(1) of the Regulation are necessary. The Authority also advised that no specific conditions or restrictions for the placing on the market and/or specific conditions or restrictions for the use and handling, including post-market monitoring requirements, and no specific conditions for the protection of particular ecosystems/environment and/or geographical areas, as provided for in point (e) of Article 6(5) of the Regulation, are required.
(10)
In its opinion, the Authority concluded that the environmental monitoring plan, consisting of a general surveillance plan, submitted by the applicant is in line with the intended use of the products.
(11)
In the light of the above considerations, authorisation should be granted.
(12)
A unique identifier should be assigned to maize line 1507 as provided for in Commission Regulation (EC) No 65/2004 of 14 January 2004 establishing a system for the development and assignment of unique identifiers for genetically modified organisms (5).
(13)
All information contained in the Annex to this Decision on the authorisation of the products should be entered in the Community Register of genetically modified food and feed as provided for in the Regulation.
(14)
In accordance with Article 4(2) of the Regulation, the conditions for authorisation of the product bind all persons placing it on the market.
(15)
This Decision should be notified through the Biosafety Clearing House to the Parties to the Cartagena Protocol on Biosafety to the Convention on Biological Diversity, pursuant to Articles 9(1) and to point 2(c) of Article 15 of Regulation (EC) No 1946/2003 of the European Parliament and of the Council of 15 July 2003 on transboundary movements of genetically modified organisms (6).
(16)
No opinion was delivered by the Standing Committee on the Food Chain and Animal Health; the Commission has therefore submitted a proposal to the Council on 5 October 2005 in accordance with Article 5(4) of Council Decision 1999/468/EC (7), the Council being required to act within three months.
(17)
However, the Council has not acted within the required time limit; a Decision should now be adopted by the Commission,
HAS DECIDED AS FOLLOWS:
Article 1
Products
This Decision covers foods and food ingredients containing, consisting of, or produced from the genetically modified maize (Zea mays L.) line 1507 further specified in the Annex to this Decision (the products) and assigned the unique identifier DAS-Ø15Ø7-1, as provided for in Regulation (EC) No 65/2004.
Article 2
Placing on the market
The placing on the market of the products, according to the conditions specified in this Decision and its Annex, is authorised for the purposes of Article 4(2) of Regulation (EC) No 1829/2003.
Article 3
Labelling
For the purposes of the specific labelling requirements provided for in Article 13(1) of Regulation (EC) No 1829/2003, the ‘name of the organism’ shall be ‘maize’.
Article 4
Monitoring for environmental effects
1. Authorisation holders shall ensure that the monitoring plan for environmental effects, as specified in the Annex to this Decision, is put in place and implemented.
2. Authorisation holders shall submit to the Commission annual reports on the implementation and the results of the monitoring activities.
The reports shall clearly state those parts of the reports which are considered to be confidential, together with a verifiable justification for confidentiality in accordance with Article 30 of Regulation (EC) No 1829/2003.
Confidential parts of such reports shall be submitted in separate documents.
Article 5
Community Register
The information in the Annex to this Decision shall be entered in the Community Register of genetically modified food and feed, as provided for in Article 28 of Regulation (EC) No 1829/2003.
Article 6
Authorisation holders
The authorisation holders are:
(a)
Pioneer Overseas Corporation, Belgium, representing Pioneer Hi-Bred International, United States of America; and
(b)
Dow AgroSciences Europe, United Kingdom, representing Mycogen Seeds, United States of America;
both of which are responsible for fulfilling the duties of authorisation holders provided for in this Decision and in Regulation (EC) No 1829/2003.
Article 7
Validity
This Decision shall be valid for a period of 10 years from the date of its adoption.
Done at Brussels, 3 March 2006. | [
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COUNCIL REGULATION (EEC) No 1733/91 of 13 June 1991 fixing the amount of aid in respect of silkworms for the 1991/92 rearing year
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to the Act of Accession of Spain and Portugal, and in particular Articles 89 (1) and 234 (2) thereof,
Having regard to Council Regulation (EEC) No 845/72 of 24 April 1972 laying down special measures to encourage silkworm rearing (1), as last amended by Regulation (EEC) No 4005/87 (2), and in particular Article 2 (3) thereof,
Having regard to the proposal from the Commission (3),
Having regard to the opinion of the European Parliament (4),
Having regard to the opinion of the Economic and Social Committee (5),
Whereas Article 2 of Regulation (EEC) No 845/72 provides that the amount of aid for silkworms reared within the Community must be fixed each year in such a way as to help ensure a fair income for silkworm rearers, taking into account the state of the market in cocoons and raw silk, of foreseeable trends on that market and of import policy;
Whereas Articles 79 and 246 of the Act of Accession of Spain and Portugal establish the criteria for fixing the amount of aid in respect of silkworms in these two Member States;
Whereas application of the abovementioned criteria entails fixing the amount of aid at the level mentioned below,
HAS ADOPTED THIS REGULATION:
Article 1
For the 1991/92 rearing year, the amount of aid in respect of silkworms as referred to in Article 2 of Regulation (EEC) No 845/72 shall be fixed per box of silkworm eggs used at:
- ECU 95,80 for Spain and Portugal,
- ECU 111,81 for the other Member States.
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 April 1991.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 13 June 1991. | [
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COUNCIL DECISION
of 26 October 1992
concerning the conclusion of an Agreement in the form of an exchange of letters between the European Economic Community and the United States of America concerning the application of the Community third country Directive, Council Directive 72/462/EEC, and the corresponding United States of America regulatory requirements with respect to trade in fresh bovine and porcine meat
(93/158/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 Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and ovine and caprine animals and fresh meat or meat products from third countries (1), hereafter referred to as ‘the Community third country Directive’,
Having regard to Commission Decision 87/257/EEC of 28 April 1987 on the list of establishments in the United States of America approved for the purpose of importing fresh meat into the Community (2),
Having regard to the recommendation from the Commission,
Whereas, under an exchange of letters signed on 7 May 1991, as referred to in Article 2 (2) of Decision 91/552/EEC, the Commission and the Government of the United States of America commenced a comparative examination of the Community third country Directive and corresponding United States of America regulatory requirements with respect to trade in fresh bovine and porcine meat, with the objective of determining whether Community and United States of America requirements are equivalent;
Whereas, this comparative examination has been completed and has shown that the regulatory requirements of the Community and the United States of America basically provide equivalent safeguards against public health risks;
Whereas, to ensure recognition of equivalency, it is desirable to establish an agreed process for the application of the regulatory requirements of both the Community and the United States of America in order to safeguard and facilitate future trade in fresh bovine and porcine meat; whereas an Agreement has been reached to that end;
Whereas, in the context of the establishment of such a process, the Commission will submit appropriate proposals to the Council on the Community third country Directive;
Whereas, in the intervening period between conclusion of the Agreement and full implementation of the measures contained therein, interim measures are required to allow for the approval of additional establishments in the United States of America for the purpose of importing fresh bovine and porcine meat into the Community;
Whereas the Agreement should be approved,
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement between the European Economic Community and the United States of America in the form of an exchange of letters concerning the application of the Community third country Directive, Council Directive 72/462/EEC and the corresponding United States of America regulatory requirements with respect to trade in fresh bovine and porcine meat is hereby approved on behalf of the European Economic Community.
The text of the Agreement is attached to this Decision.
Article 2
The President of the Council is hereby authorized to designate the person empowered to sign the Agreement in order to bind the Community.
This Decision shall be published in the Official Journal of the European Communities.
Done at Luxembourg, 26 October 1992. | [
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*****
COMMISSION REGULATION (EEC) No 1135/86
of 18 April 1986
amending Regulation (EEC) No 2475/85 laying down detailed rules, for the application of Regulation (EEC) No 777/85 on the granting, for the 1985/86 to 1989/90 wine years, of permanent-abondonment premiums in respect of certain areas under vines
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 777/85 of 26 March 1985 on the granting, for the 1985/86 to 1989/90 wine years, of permanent-abandonment premiums in respect of certain areas under vines (1), as amended by Regulation (EEC) No 3775/85 (2), and in particular Article 2 (4) thereof,
Whereas the Annex to Commission Regulation (EEC) No 2475/85 (3) specifies the varieties referred to in the first indent of Article 2 (1) (c) of Regulation (EEC) No 777/85; whereas the list of the said varieties should in the light of the experience gained, be amended;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,
HAS ADOPTED THIS REGULATION:
Article 1
The list of varieties set out in the Annex to Regulation (EEC) No 2475/85 is hereby amended as follows:
(a) 'Dabouki' is added to point 1.
(b) 'Schiava grossa (Frankental)' is deleted from point 3.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of he European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 April 1986. | [
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DIRECTIVE 2009/73/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 13 July 2009
concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC
(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 47(2) and Articles 55 and 95 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Economic and Social Committee (1),
Having regard to the opinion of the Committee of the Regions (2),
Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),
Whereas:
(1)
The internal market in natural gas, which has been progressively implemented throughout the Community since 1999, aims to deliver real choice for all consumers of the European Union, be they citizens or businesses, new business opportunities and more cross-border trade, so as to achieve efficiency gains, competitive prices, and higher standards of service, and to contribute to security of supply and sustainability.
(2)
Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas (4) has made a significant contribution towards the creation of such an internal market in natural gas.
(3)
The freedoms which the Treaty guarantees the citizens of the Union - inter alia, the free movement of goods, the freedom of establishment and the freedom to provide services - are achievable only in a fully open market, which enables all consumers freely to choose their suppliers and all suppliers freely to deliver to their customers.
(4)
However, at present, there are obstacles to the sale of gas on equal terms and without discrimination or disadvantages in the Community. In particular, non-discriminatory network access and an equally effective level of regulatory supervision in each Member State do not yet exist.
(5)
The Communication of the Commission of 10 January 2007 entitled ‘An Energy Policy for Europe’ highlighted the importance of completing the internal market in natural gas and of creating a level playing field for all natural gas undertakings established in the Community. The Communications of the Commission of 10 January 2007 entitled ‘Prospects for the internal gas and electricity market’ and ‘Inquiry pursuant to Article 17 of Regulation (EC) No 1/2003 into the European gas and electricity sectors (Final Report)’ showed that the present rules and measures do not provide the necessary framework for achieving the objective of a well-functioning internal market.
(6)
Without effective separation of networks from activities of production and supply (effective unbundling), there is a risk of discrimination not only in the operation of the network but also in the incentives for vertically integrated undertakings to invest adequately in their networks.
(7)
The rules on legal and functional unbundling as provided for in Directive 2003/55/EC have not, however, led to effective unbundling of the transmission system operators. At its meeting on 8 and 9 March 2007, the European Council therefore invited the Commission to develop legislative proposals for the ‘effective separation of supply and production activities from network operations’.
(8)
Only the removal of the incentive for vertically integrated undertakings to discriminate against competitors as regards network access and investment can ensure effective unbundling. Ownership unbundling, which implies the appointment of the network owner as the system operator and its independence from any supply and production interests, is clearly an effective and stable way to solve the inherent conflict of interests and to ensure security of supply. For that reason, the European Parliament, in its resolution of 10 July 2007 on prospects for the internal gas and electricity market (5) referred to ownership unbundling at transmission level as the most effective tool by which to promote investments in infrastructure in a non-discriminatory way, fair access to the network for new entrants and transparency in the market. Under ownership unbundling, Member States should therefore be required to ensure that the same person or persons are not entitled to exercise control over a production or supply undertaking and, at the same time, exercise control or any right over a transmission system operator or transmission system. Conversely, control over a transmission system or transmission system operator should preclude the possibility of exercising control or any right over a production or supply undertaking. Within those limits, a production or supply undertaking should be able to have a minority shareholding in a transmission system operator or transmission system.
(9)
Any system for unbundling should be effective in removing any conflict of interests between producers, suppliers and transmission system operators, in order to create incentives for the necessary investments and guarantee the access of new market entrants under a transparent and efficient regulatory regime and should not create an overly onerous regulatory regime for national regulatory authorities.
(10)
The definition of the term ‘control’ is taken from Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (6).
(11)
Since ownership unbundling requires, in some instances, the restructuring of undertakings, Member States that decide to implement ownership unbundling should be granted additional time to apply the relevant provisions. In view of the vertical links between the electricity and gas sectors, the unbundling provisions should apply across the two sectors.
(12)
Under ownership unbundling, to ensure full independence of network operation from supply and production interests and to prevent exchanges of any confidential information, the same person should not be a member of the managing boards of both a transmission system operator or a transmission system and an undertaking performing any of the functions of production or supply. For the same reason, the same person should not be entitled to appoint members of the managing boards of a transmission system operator or a transmission system and to exercise control or any right over a production or supply undertaking.
(13)
The setting up of a system operator or a transmission operator that is independent from supply and production interests should enable a vertically integrated undertaking to maintain its ownership of network assets whilst ensuring an effective separation of interests, provided that such independent system operator or such independent transmission operator performs all the functions of a system operator and detailed regulation and extensive regulatory control mechanisms are put in place.
(14)
Where, on 3 September 2009, an undertaking owning a transmission system is part of a vertically integrated undertaking, Member States should therefore be given a choice between ownership unbundling and setting up a system operator or transmission operator which is independent from supply and production interests.
(15)
To preserve fully the interests of the shareholders of vertically integrated undertakings, Member States should have the choice of implementing ownership unbundling either by direct divestiture or by splitting the shares of the integrated undertaking into shares of the network undertaking and shares of the remaining supply and production undertaking, provided that the requirements resulting from ownership unbundling are complied with.
(16)
The full effectiveness of the independent system operator or independent transmission operator solutions should be ensured by way of specific additional rules. The rules on the independent transmission operator provide an appropriate regulatory framework to guarantee fair competition, sufficient investment, access for new market entrants and the integration of gas markets. Effective unbundling through the independent transmission operator provisions should be based on a pillar of organisational measures and measures relating to the governance of transmission system operators and on a pillar of measures relating to investment, connecting new production capacities to the network and market integration through regional cooperation. The independence of the transmission operator should also, inter alia, be ensured through certain ‘cooling-off’ periods during which no management or other relevant activity giving access to the same information as could have been obtained in a managerial position is exercised in the vertically integrated undertaking. The independent transmission operator model of effective unbundling is in line with the requirements laid down by the European Council at its meeting on 8 and 9 March 2007.
(17)
In order to develop competition in the internal market in gas, large non-household customers should be able to choose their suppliers and enter into contracts with several suppliers to secure their gas requirements. Such customers should be protected against exclusivity clauses, the effect of which is to exclude competing or complementary offers.
(18)
A Member State has the right to opt for full ownership unbundling in its territory. Where a Member State has exercised that right, an undertaking does not have the right to set up an independent system operator or an independent transmission operator. Furthermore, an undertaking performing any of the functions of production or supply cannot directly or indirectly exercise control or any right over a transmission system operator from a Member State that has opted for full ownership unbundling.
(19)
Under this Directive different types of market organisation will exist in the internal market in natural gas. The measures that Member States could take in order to ensure a level playing field should be based on overriding requirements of general interest. The Commission should be consulted on the compatibility of the measures with the Treaty and Community law.
(20)
The implementation of effective unbundling should respect the principle of non-discrimination between the public and private sectors. To that end, the same person should not be able to exercise control or any right, in violation of the rules of ownership unbundling or the independent system operator option, solely or jointly, over the composition, voting or decision of the bodies of both the transmission system operators or the transmission systems and the production or supply undertakings. With regard to ownership unbundling and the independent system operator solution, provided that the Member State in question is able to demonstrate that the requirement is complied with, two separate public bodies should be able to control production and supply activities on the one hand and transmission activities on the other.
(21)
Fully effective separation of network activities from supply and production activities should apply throughout the Community to both Community and non-Community undertakings. To ensure that network activities and supply and production activities throughout the Community remain independent from each other, regulatory authorities should be empowered to refuse certification to transmission system operators that do not comply with the unbundling rules. To ensure the consistent application of those rules across the Community, the regulatory authorities should take utmost account of the Commission’s opinion when the former take decisions on certification. To ensure, in addition, respect for the international obligations of the Community and solidarity and energy security within the Community, the Commission should have the right to give an opinion on certification in relation to a transmission system owner or a transmission system operator which is controlled by a person or persons from a third country or third countries.
(22)
The security of energy supply is an essential element of public security and is therefore inherently connected to the efficient functioning of the internal market in gas and the integration of the isolated gas markets of Member States. Gas can reach the citizens of the Union only through the network. Functioning open gas markets and, in particular, the networks and other assets associated with gas supply are essential for public security, for the competitiveness of the economy and for the well-being of the citizens of the Union. Persons from third countries should therefore only be allowed to control a transmission system or a transmission system operator if they comply with the requirements of effective separation that apply inside the Community. Without prejudice to the international obligations of the Community, the Community considers that the gas transmission system sector is of high importance to the Community and therefore additional safeguards are necessary regarding the preservation of the security of supply of energy to the Community to avoid any threats to public order and public security in the Community and the welfare of the citizens of the Union. The security of supply of energy to the Community requires, in particular, an assessment of the independence of network operation, the level of the Community’s and individual Member States’ dependence on energy supply from third countries, and the treatment of both domestic and foreign trade and investment in energy in a particular third country. Security of supply should therefore be assessed in the light of the factual circumstances of each case as well as the rights and obligations arising under international law, in particular the international agreements between the Community and the third country concerned. Where appropriate the Commission is encouraged to submit recommendations to negotiate relevant agreements with third countries addressing the security of supply of energy to the Community or to include the necessary issues in other negotiations with those third countries.
(23)
Further measures should be taken in order to ensure transparent and non-discriminatory tariffs for access to transport. Those tariffs should be applicable to all users on a non-discriminatory basis. Where a storage facility, linepack or ancillary service operates in a sufficiently competitive market, access could be allowed on the basis of transparent and non-discriminatory market-based mechanisms.
(24)
It is necessary to ensure the independence of storage system operators in order to improve third-party access to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers. It is therefore appropriate that storage facilities are operated through legally separate entities that have effective decision-making rights with respect to assets necessary to maintain, operate and develop storage facilities. It is also necessary to increase transparency in respect of the storage capacity that is offered to third parties, by obliging Member States to define and publish a non-discriminatory, clear framework that determines the appropriate regulatory regime applicable to storage facilities. That obligation should not require a new decision on access regimes but should improve the transparency regarding the access regime to storage. Confidentiality requirements for commercially sensitive information are particularly important where data of a strategic nature are concerned or where there is only a single user of a storage facility.
(25)
Non-discriminatory access to the distribution network determines downstream access to customers at retail level. The scope for discrimination as regards third party access and investment, however, is less significant at distribution level than at transmission level where congestion and the influence of production interests are generally greater than at distribution level. Moreover, legal and functional unbundling of distribution system operators was required, pursuant to Directive 2003/55/EC, only from 1 July 2007 and its effects on the internal market in natural gas still need to be evaluated. The rules on legal and functional unbundling currently in place can lead to effective unbundling provided they are more clearly defined, properly implemented and closely monitored. To create a level playing field at retail level, the activities of distribution system operators should therefore be monitored so that they are prevented from taking advantage of their vertical integration as regards their competitive position on the market, in particular in relation to household and small non-household customers.
(26)
Member States should take concrete measures to assist the wider use of biogas and gas from biomass, the producers of which should be granted non-discriminatory access to the gas system, provided that such access is compatible with the relevant technical rules and safety standards on an ongoing basis.
(27)
To avoid imposing a disproportionate financial and administrative burden on small distribution system operators, Member States should be able, where necessary, to exempt the undertakings concerned from the legal distribution unbundling requirements.
(28)
Where a closed distribution system is used to ensure the optimal efficiency of an integrated energy supply requiring specific operational standards, or a closed distribution system is maintained primarily for the use of the owner of the system, it should be possible to exempt the distribution system operator from obligations which would constitute an unnecessary administrative burden because of the particular nature of the relationship between the distribution system operator and the users of the system. Industrial, commercial or shared services sites such as train station buildings, airports, hospitals, large camping sites with integrated facilities or chemical industry sites can include closed distribution systems because of the specialised nature of their operations.
(29)
Directive 2003/55/EC introduced a requirement for Member States to establish regulators with specific competences. However, experience shows that the effectiveness of regulation is frequently hampered through a lack of independence of regulators from government, and insufficient powers and discretion. For that reason, at its meeting on 8 and 9 March 2007, the European Council invited the Commission to develop legislative proposals providing for further harmonisation of the powers and strengthening of the independence of national energy regulators. It should be possible for those national regulatory authorities to cover both the electricity and the gas sectors.
(30)
Energy regulators need to be able to take decisions in relation to all relevant regulatory issues if the internal market in natural gas is to function properly, and to be fully independent from any other public or private interests. This precludes neither judicial review nor parliamentary supervision in accordance with the constitutional law of the Member States. In addition, approval of the budget of the regulator by the national legislator does not constitute an obstacle to budgetary autonomy. The provisions relating to autonomy in the implementation of the allocated budget of the regulatory authority should be implemented within the framework defined by national budgetary law and rules. While contributing to the independence of the national regulatory authority from any political or economic interest through an appropriate rotation scheme, it should be possible for Member States to take due account of the availability of human resources and of the size of the board.
(31)
In order to ensure effective market access for all market players, including new entrants, non-discriminatory and cost-reflective balancing mechanisms are necessary. This should be achieved through the setting up of transparent market-based mechanisms for the supply and purchase of gas, needed in the framework of balancing requirements. National regulatory authorities should play an active role to ensure that balancing tariffs are non-discriminatory and cost-reflective. At the same time, appropriate incentives should be provided to balance the in-put and off-take of gas and not to endanger the system.
(32)
National regulatory authorities should be able to fix or approve tariffs, or the methodologies underlying the calculation of the tariffs, on the basis of a proposal by the transmission system operator or distribution system operator(s) or liquefied natural gas (LNG) system operator, or on the basis of a proposal agreed between those operator(s) and the users of the network. In carrying out those tasks, national regulatory authorities should ensure that transmission and distribution tariffs are non-discriminatory and cost-reflective, and should take account of the long-term, marginal, avoided network costs from demand-side management measures.
(33)
Energy regulators should have the power to issue binding decisions in relation to natural gas undertakings and to impose effective, proportionate and dissuasive penalties on natural gas undertakings which fail to comply with their obligations or to propose that a competent court impose such penalties on them. Energy regulators should also be granted the power to decide, irrespective of the application of competition rules, on appropriate measures ensuring customer benefits through the promotion of effective competition necessary for the proper functioning of the internal market in natural gas. The establishment of gas-release programmes is one of the possible measures that can be used to promote effective competition and ensure the proper functioning of the market. Energy regulators should also be granted the powers to contribute to ensuring high standards of public service in compliance with market opening, to the protection of vulnerable customers, and to the full effectiveness of consumer protection measures. Those provisions should be without prejudice to both the Commission’s powers concerning the application of competition rules including the examination of mergers with a Community dimension, and the rules on the internal market such as the free movement of capital. The independent body to which a party affected by the decision of a national regulator has a right to appeal could be a court or other tribunal empowered to conduct a judicial review.
(34)
Any harmonisation of the powers of national regulatory authorities should include the powers to provide incentives to natural gas undertakings and to impose effective, proportionate and dissuasive penalties on natural gas undertakings or to propose that a competent court impose such penalties. Moreover, regulatory authorities should have the power to request relevant information from natural gas undertakings, make appropriate and sufficient investigations and settle disputes.
(35)
Investments in major new infrastructure should be strongly promoted while ensuring the proper functioning of the internal market in natural gas. In order to enhance the positive effect of exempted infrastructure projects on competition and security of supply, market interest during the project planning phase should be tested and congestion management rules should be implemented. Where an infrastructure is located in the territory of more than one Member State, the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (7) (the ‘Agency’) should handle as a last resort the exemption request in order to take better account of its cross-border implications and to facilitate its administrative handling. Moreover, given the exceptional risk profile of constructing those exempt major infrastructure projects, it should be possible temporarily to grant partial derogations to undertakings with supply and production interests in respect of the unbundling rules for the projects concerned. The possibility of temporary derogations should apply, for security of supply reasons, in particular, to new pipelines within the Community transporting gas from third countries into the Community. Exemptions granted under Directive 2003/55/EC continue to apply until the scheduled expiry date as decided in the granted exemption decision.
(36)
The internal market in natural gas suffers from a lack of liquidity and transparency hindering the efficient allocation of resources, risk hedging and new entry. Trust in the market, its liquidity and the number of market participants needs to increase, and, therefore, regulatory oversight of undertakings active in the supply of gas needs to be increased. Such requirements should be without prejudice to, and compatible with, existing Community law in relation to the financial markets. Energy regulators and financial market regulators need to cooperate in order to enable each other to have an overview of the markets concerned.
(37)
Natural gas is mainly, and increasingly, imported into the Community from third countries. Community law should take account of the characteristics of natural gas, such as certain structural rigidities arising from the concentration of suppliers, the long-term contracts or the lack of downstream liquidity. Therefore, more transparency is needed, including in regard to the formation of prices.
(38)
Prior to the adoption by the Commission of Guidelines defining further the record-keeping requirements, the Agency and the Committee of European Securities Regulators (the ‘CESR’), established by Commission Decision 2009/77/EC (8), should confer and advise the Commission in regard to their content. The Agency and the CESR should also cooperate to investigate further and advise on whether transactions in gas supply contracts and gas derivatives should be subject to pre- and/or post-trade transparency requirements and, if so, what the content of those requirements should be.
(39)
Member States or, where a Member State has so provided, the regulatory authority, should encourage the development of interruptible supply contracts.
(40)
In the interests of security of supply, the balance between supply and demand in individual Member States should be monitored, and such monitoring should be followed by a report on the situation at Community level, taking account of interconnection capacity between areas. Such monitoring should be carried out sufficiently early to enable appropriate measures to be taken if security of supply is compromised. The construction and maintenance of the necessary network infrastructure, including interconnection capacity, should contribute to ensuring a stable gas supply.
(41)
Member States should ensure that, taking into account the necessary quality requirements, biogas and gas from biomass or other types of gas are granted non-discriminatory access to the gas system, provided such access is permanently compatible with the relevant technical rules and safety standards. Those rules and standards should ensure that those gases can technically and safely be injected into, and transported through the natural gas system and should also address their chemical characteristics.
(42)
Long-term contracts will continue to be an important part of the gas supply of Member States and should be maintained as an option for gas supply undertakings in so far as they do not undermine the objective of this Directive and are compatible with the Treaty, including the competition rules. It is therefore necessary to take into account long-term contracts in the planning of supply and transport capacity of natural gas undertakings.
(43)
In order to ensure the maintenance of high standards of public service in the Community, all measures taken by Member States to achieve the objectives of this Directive should be regularly notified to the Commission. The Commission should regularly publish a report analysing measures taken at national level to achieve public service objectives and comparing their effectiveness, with a view to making recommendations as regards measures to be taken at national level to achieve high public service standards. Member States should ensure that when they are connected to the gas system customers are informed about their rights to be supplied with natural gas of a specified quality at reasonable prices. Measures taken by Member States to protect final customers may differ according to whether they are aimed at household customers or small and medium-sized enterprises.
(44)
Respect for the public service requirements is a fundamental requirement of this Directive, and it is important that common minimum standards, respected by all Member States, are specified in this Directive, which take into account the objectives of common protection, security of supply, environmental protection and equivalent levels of competition in all Member States. It is important that the public service requirements can be interpreted on a national basis, taking into account national circumstances and subject to the respect of Community law.
(45)
It should be possible for measures implemented by Member States to achieve the objectives of social and economic cohesion to include, in particular, the provision of adequate economic incentives, using, where appropriate, all existing national and Community tools. It should be possible for such tools to include liability mechanisms to guarantee the necessary investment.
(46)
To the extent to which measures taken by Member States to fulfil public service obligations constitute State aid under Article 87(1) of the Treaty, there is an obligation under Article 88(3) of the Treaty to notify them to the Commission.
(47)
The public service requirements and the common minimum standards that follow from them need to be further strengthened to make sure that all consumers, especially vulnerable ones, can benefit from competition and fair prices. The public service requirements should be defined at national level, taking into account national circumstances; Community law should, however, be respected by the Member States. The citizens of the Union and, where Member States deem it to be appropriate, small enterprises, should be able to enjoy public service obligations, in particular with regard to security of supply and reasonable tariffs. A key aspect in supplying customers is access to objective and transparent consumption data. Thus, consumers should have access to their consumption data and associated prices and services costs so that they can invite competitors to make an offer based on those data. Consumers should also have the right to be properly informed about their energy consumption. Prepayments should reflect the likely consumption of natural gas and different payment systems should be non-discriminatory. Information on energy costs provided to consumers frequently enough will create incentives for energy savings because it will give customers direct feedback on the effects of investment in energy efficiency and change of behaviour.
(48)
Consumer interests should be at the heart of this Directive and quality of service should be a central responsibility of natural gas undertakings. Existing rights of consumers need to be strengthened and guaranteed, and should include greater transparency. Consumer protection should ensure that all consumers in the wider remit of the Community benefit from a competitive market. Consumer rights should be enforced by Member States or, where a Member State has so provided, the regulatory authorities.
(49)
Clear and comprehensible information should be made available to consumers concerning their rights in relation to the energy sector. The Commission should establish, after consulting relevant stakeholders including Member States, national regulatory authorities, consumer organisations and natural gas undertakings, an accessible, user-friendly energy consumer checklist providing consumers with practical information about their rights. That energy consumer checklist should be provided to all consumers and should be made publicly available.
(50)
Energy poverty is a growing problem in the Community. Member States which are affected and which have not yet done so should, therefore, develop national action plans or other appropriate frameworks to tackle energy poverty, aiming at decreasing the number of people suffering such situation. In any event, Member States should ensure the necessary energy supply for vulnerable customers. In doing so, an integrated approach, such as in the framework of social policy, could be used and measures could include social policies or energy efficiency improvements for housing. At the very least, this Directive should allow national policies in favour of vulnerable customers.
(51)
Greater consumer protection is guaranteed by the availability of effective means of dispute settlement for all consumers. Member States should introduce speedy and effective complaint handling procedures.
(52)
It should be possible to base the introduction of intelligent metering systems on an economic assessment. Should that assessment conclude that the introduction of such metering systems is economically reasonable and cost-effective only for consumers with a certain amount of gas consumption, Member States should be able to take this into account when implementing intelligent metering systems.
(53)
Market prices should give the right incentives for the development of the network.
(54)
Promoting fair competition and easy access for different suppliers should be of the utmost importance for Member States in order to allow consumers to take full advantage of the opportunities of a liberalised internal market in natural gas.
(55)
In order to contribute to security of supply whilst maintaining a spirit of solidarity between Member States, notably in the event of an energy supply crisis, it is important to provide a framework for regional cooperation in a spirit of solidarity. Such cooperation may rely, if Member States so decide, first and foremost on market-based mechanisms. Cooperation for the promotion of regional and bilateral solidarity should not impose a disproportionate burden on or discriminate between market participants.
(56)
With a view to creating an internal market in natural gas, Member States should foster the integration of their national markets and the cooperation of system operators at Community and regional level, also incorporating the isolated systems forming gas islands that persist in the Community.
(57)
The development of a true internal market in natural gas, through a network connected across the Community, should be one of the main goals of this Directive and regulatory issues on cross border interconnections and regional markets should, therefore, be one of the main tasks of the regulatory authorities, in close cooperation with the Agency where relevant.
(58)
Securing common rules for a true internal market and a broad supply of gas should also be one of the main goals of this Directive. To that end, undistorted market prices would provide an incentive for cross-border interconnections while leading, in the long term, to price convergence.
(59)
The regulatory authorities should also provide information on the market to permit the Commission to exercise its role of observing and monitoring the internal market in natural gas and its short, medium and long-term evolution, including aspects such as supply and demand, transmission and distribution infrastructure, quality of service, cross-border trade, congestion management, investments, wholesale and consumer prices, market liquidity and environmental and efficiency improvements. National regulatory authorities should report to the competition authorities and the Commission those Member States in which prices impair competition and proper functioning of the market.
(60)
Since the objective of this Directive, namely the creation of a fully operational internal market in natural gas, 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 Directive does not go beyond what is necessary in order to achieve that objective.
(61)
Under Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks (9), the Commission may adopt Guidelines to achieve the necessary degree of harmonisation. Such Guidelines, which constitute binding implementing measures, are, also with regard to certain provisions of this Directive, a useful tool which can be adapted quickly where necessary.
(62)
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 (10).
(63)
In particular, the Commission should be empowered to adopt the Guidelines necessary for providing the minimum degree of harmonisation required to achieve the aim of this Directive. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.
(64)
In accordance with point 34 of the Interinstitutional Agreement on better law-making (11), Member States are encouraged to draw up, for themselves and in the interest of the Community, their own tables, illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.
(65)
Given the scope of the amendments made to Directive 2003/55/EC herein, it is desirable, for reasons of clarity and rationalisation, that the provisions in question should be recast by bringing them all together in a single text in a new Directive.
(66)
This Directive respects the fundamental rights, and observes the principles, recognised in particular by the Charter of Fundamental Rights of the European Union,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
SUBJECT MATTER, SCOPE AND DEFINITIONS
Article 1
Subject matter and scope
1. This Directive establishes common rules for the transmission, distribution, supply and storage of natural gas. It lays down the rules relating to the organisation and functioning of the natural gas sector, access to the market, the criteria and procedures applicable to the granting of authorisations for transmission, distribution, supply and storage of natural gas and the operation of systems.
2. The rules established by this Directive for natural gas, including LNG, shall also apply in a non-discriminatory way to biogas and gas from biomass or other types of gas in so far as such gases can technically and safely be injected into, and transported through, the natural gas system.
Article 2
Definitions
For the purposes of this Directive, the following definitions apply:
(1)
‘natural gas undertaking’ means a natural or legal person carrying out at least one of the following functions: production, transmission, distribution, supply, purchase or storage of natural gas, including LNG, which is responsible for the commercial, technical and/or maintenance tasks related to those functions, but shall not include final customers;
(2)
‘upstream pipeline network’ means any pipeline or network of pipelines operated and/or constructed as part of an oil or gas production project, or used to convey natural gas from one or more such projects to a processing plant or terminal or final coastal landing terminal;
(3)
‘transmission’ means the transport of natural gas through a network, which mainly contains high-pressure pipelines, other than an upstream pipeline network and other than the part of high-pressure pipelines primarily used in the context of local distribution of natural gas, with a view to its delivery to customers, but not including supply;
(4)
‘transmission system operator’ means a natural or legal person who carries out the function of transmission and is responsible for operating, ensuring the maintenance of, and, if necessary, developing the transmission system in a given area and, where applicable, its interconnections with other systems, and for ensuring the long-term ability of the system to meet reasonable demands for the transport of gas;
(5)
‘distribution’ means the transport of natural gas through local or regional pipeline networks with a view to its delivery to customers, but not including supply;
(6)
‘distribution system operator’ means a natural or legal person who carries out the function of distribution and is responsible for operating, ensuring the maintenance of, and, if necessary, developing the distribution system in a given area and, where applicable, its interconnections with other systems, and for ensuring the long-term ability of the system to meet reasonable demands for the distribution of gas;
(7)
‘supply’ means the sale, including resale, of natural gas, including LNG, to customers;
(8)
‘supply undertaking’ means any natural or legal person who carries out the function of supply;
(9)
‘storage facility’ means a facility used for the stocking of natural gas and owned and/or operated by a natural gas undertaking, including the part of LNG facilities used for storage but excluding the portion used for production operations, and excluding facilities reserved exclusively for transmission system operators in carrying out their functions;
(10)
‘storage system operator’ means a natural or legal person who carries out the function of storage and is responsible for operating a storage facility;
(11)
‘LNG facility’ means a terminal which is used for the liquefaction of natural gas or the importation, offloading, and re-gasification of LNG, and includes ancillary services and temporary storage necessary for the re-gasification process and subsequent delivery to the transmission system, but does not include any part of LNG terminals used for storage;
(12)
‘LNG system operator’ means a natural or legal person who carries out the function of liquefaction of natural gas, or the importation, offloading, and re-gasification of LNG and is responsible for operating a LNG facility;
(13)
‘system’ means any transmission networks, distribution networks, LNG facilities and/or storage facilities owned and/or operated by a natural gas undertaking, including linepack and its facilities supplying ancillary services and those of related undertakings necessary for providing access to transmission, distribution and LNG;
(14)
‘ancillary services’ means all services necessary for access to and the operation of transmission networks, distribution networks, LNG facilities, and/or storage facilities, including load balancing, blending and injection of inert gases, but not including facilities reserved exclusively for transmission system operators carrying out their functions;
(15)
‘linepack’ means the storage of gas by compression in gas transmission and distribution systems, but not including facilities reserved for transmission system operators carrying out their functions;
(16)
‘interconnected system’ means a number of systems which are linked with each other;
(17)
‘interconnector’ means a transmission line which crosses or spans a border between Member States for the sole purpose of connecting the national transmission systems of those Member States;
(18)
‘direct line’ means a natural gas pipeline complementary to the interconnected system;
(19)
‘integrated natural gas undertaking’ means a vertically or horizontally integrated undertaking;
(20)
‘vertically integrated undertaking’ means a natural gas undertaking or a group of natural gas undertakings where the same person or the same persons are entitled, directly or indirectly, to exercise control, and where the undertaking or group of undertakings perform at least one of the functions of transmission, distribution, LNG or storage, and at least one of the functions of production or supply of natural gas;
(21)
‘horizontally integrated undertaking’ means an undertaking performing at least one of the functions of production, transmission, distribution, supply or storage of natural gas, and a non-gas activity;
(22)
‘related undertaking’ means an affiliated undertaking, within the meaning of Article 41 of Seventh Council Directive 83/349/EEC of 13 June 1983 based on the Article 44(2)(g) (12) of the Treaty on consolidated accounts (13) and/or an associated undertaking, within the meaning of Article 33(1) of that Directive, and/or an undertaking which belong to the same shareholders;
(23)
‘system user’ means a natural or legal person supplying to, or being supplied by, the system;
(24)
‘customer’ means a wholesale or final customer of natural gas or a natural gas undertaking which purchases natural gas;
(25)
‘household customer’ means a customer purchasing natural gas for his own household consumption;
(26)
‘non-household customer’ means a customer purchasing natural gas which is not for his own household use;
(27)
‘final customer’ means a customer purchasing natural gas for his own use;
(28)
‘eligible customer’ means a customer who is free to purchase gas from the supplier of his choice, within the meaning of Article 37;
(29)
‘wholesale customer’ means a natural or legal person other than a transmission system operator or distribution system operator who purchases natural gas for the purpose of resale inside or outside the system where he is established;
(30)
‘long-term planning’ means the planning of supply and transport capacity of natural gas undertakings on a long-term basis with a view to meeting the demand for natural gas of the system, diversification of sources and securing supplies to customers;
(31)
‘emergent market’ means a Member State in which the first commercial supply of its first long-term natural gas supply contract was made not more than 10 years earlier;
(32)
‘security’ means both security of supply of natural gas and technical safety;
(33)
‘new infrastructure’ means an infrastructure not completed by 4 August 2003;
(34)
‘gas supply contract’ means a contract for the supply of natural gas, but does not include a gas derivative;
(35)
‘gas derivative’ means a financial instrument specified in points 5, 6 or 7 of Section C of Annex I to Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments (14), where that instrument relates to natural gas;
(36)
‘control’ means any rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by:
(a)
ownership or the right to use all or part of the assets of an undertaking;
(b)
rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.
CHAPTER II
GENERAL RULES FOR THE ORGANISATION OF THE SECTOR
Article 3
Public service obligations and customer protection
1. Member States shall ensure, on the basis of their institutional organisation and with due regard to the principle of subsidiarity, that, without prejudice to paragraph 2, natural gas undertakings are operated in accordance with the principles of this Directive with a view to achieving a competitive, secure and environmentally sustainable market in natural gas, and shall not discriminate between those undertakings as regards their rights or obligations.
2. Having full regard to the relevant provisions of the Treaty, in particular Article 86 thereof, Member States may impose on undertakings operating in the gas sector, in the general economic interest, public service obligations which may relate to security, including security of supply, regularity, quality and price of supplies, and environmental protection, including energy efficiency, energy from renewable sources and climate protection. Such obligations shall be clearly defined, transparent, non-discriminatory, verifiable and shall guarantee equality of access for natural gas undertakings of the Community to national consumers. In relation to security of supply, energy efficiency/demand-side management and for the fulfilment of environmental goals and goals for energy from renewable sources, as referred to in this paragraph, Member States may introduce the implementation of long-term planning, taking into account the possibility of third parties seeking access to the system.
3. Member States shall take appropriate measures to protect final customers, and shall, in particular, ensure that there are adequate safeguards to protect vulnerable customers. In this context, each Member State shall define the concept of vulnerable customers which may refer to energy poverty and, inter alia, to the prohibition of disconnection of gas to such customers in critical times. Member States shall ensure that rights and obligations linked to vulnerable customers are applied. In particular, they shall take appropriate measures to protect final customers in remote areas who are connected to the gas system. Member States may appoint a supplier of last resort for customers connected to the gas system. They shall ensure high levels of consumer protection, particularly with respect to transparency regarding contractual terms and conditions, general information and dispute settlement mechanisms. Member States shall ensure that the eligible customer is in fact able easily to switch to a new supplier. As regards at least household customers those measures shall include those set out in Annex I.
4. Member States shall take appropriate measures, such as formulating national energy action plans, providing social security benefits to ensure the necessary gas supply to vulnerable customers, or providing for support for energy efficiency improvements, to address energy poverty where identified, including in the broader context of poverty. Such measures shall not impede the effective opening of the market set out in Article 37 and market functioning and shall be notified to the Commission, where relevant, in accordance with paragraph 11 of this Article. Such notification shall not include measures taken within the general social security system.
5. Member States shall ensure that all customers connected to the gas network are entitled to have their gas provided by a supplier, subject to the supplier's agreement, regardless of the Member State in which the supplier is registered, as long as the supplier follows the applicable trading and balancing rules and subject to security of supply requirements. In this regard, Member States shall take all measures necessary to ensure that administrative procedures do not constitute a barrier for supply undertakings already registered in another Member State.
6. Member States shall ensure that:
(a)
where a customer, while respecting the contractual conditions, wishes to change supplier, the change is effected by the operator(s) concerned within three weeks; and
(b)
customers are entitled to receive all relevant consumption data.
Member States shall ensure that the rights referred to in points (a) and (b) of the first subparagraph are granted to customers in a non-discriminatory manner as regards cost, effort or time.
7. Member States shall implement appropriate measures to achieve the objectives of social and economic cohesion and environmental protection, which may include means to combat climate change, and security of supply. Such measures may include, in particular, the provision of adequate economic incentives, using, where appropriate, all existing national and Community tools, for the maintenance and construction of necessary network infrastructure, including interconnection capacity.
8. In order to promote energy efficiency, Member States or, where a Member State has so provided, the regulatory authority shall strongly recommend that natural gas undertakings optimise the use of gas, for example by providing energy management services, developing innovative pricing formulas or introducing intelligent metering systems or smart grids where appropriate.
9. Member States shall ensure the provision of single points of contact to provide consumers with all necessary information concerning their rights, current legislation and the means of dispute settlement available to them in the event of a dispute. Such contact points may be part of general consumer information points.
Member States shall ensure that an independent mechanism such as an energy ombudsman or a consumer body is in place in order to ensure efficient treatment of complaints and out-of-court dispute settlements.
10. Member States may decide not to apply the provisions of Article 4 with respect to distribution insofar as their application would obstruct, in law or in fact, the performance of the obligations imposed on natural gas undertakings in the general economic interest and insofar as the development of trade would not be affected to such an extent as would be contrary to the interests of the Community. The interests of the Community include, inter alia, competition with regard to eligible customers in accordance with this Directive and Article 86 of the Treaty.
11. Member States shall, upon implementation of this Directive, inform the Commission of all measures adopted to fulfil public service obligations, including consumer and environmental protection, and their possible effect on national and international competition, whether or not such measures require a derogation from the provisions of this Directive. They shall notify the Commission subsequently every two years of any changes to such measures, whether or not they require a derogation from this Directive.
12. The Commission shall establish, in consultation with relevant stakeholders, including Member States, the national regulatory authorities, consumer organisations and natural gas undertakings, a clear and concise energy consumer checklist of practical information relating to energy consumer rights. Member States shall ensure that gas suppliers or distribution system operators, in cooperation with the regulatory authority, take the necessary steps to provide their consumers with a copy of the energy consumer checklist and ensure that it is made publicly available.
Article 4
Authorisation procedure
1. In circumstances where an authorisation (for example, licence, permission, concession, consent or approval) is required for the construction or operation of natural gas facilities, the Member States or any competent authority they designate shall grant authorisations to build and/or operate such facilities, pipelines and associated equipment on their territory, in accordance with paragraphs 2 to 4. Member States or any competent authority they designate may also grant authorisations on the same basis for the supply of natural gas and for wholesale customers.
2. Where Member States have a system of authorisation, they shall lay down objective and non-discriminatory criteria which shall be met by an undertaking applying for an authorisation to build and/or operate natural gas facilities or applying for an authorisation to supply natural gas. The non-discriminatory criteria and procedures for the granting of authorisations shall be made public. Member States shall ensure that authorisation procedures for facilities, pipelines and associated equipment take into account the importance of the project for the internal market in natural gas where appropriate.
3. Member States shall ensure that the reasons for any refusal to grant an authorisation are objective and non-discriminatory and that they are given to the applicant. Reasons for such refusals shall be notified to the Commission for information. Member States shall establish a procedure enabling the applicant to appeal against such refusals.
4. For the development of newly supplied areas and efficient operation generally, and without prejudice to Article 38, Member States may decline to grant a further authorisation to build and operate distribution pipeline systems in any particular area once such pipeline systems have been or are proposed to be built in that area and if existing or proposed capacity is not saturated.
Article 5
Monitoring of security of supply
Member States shall ensure the monitoring of security of supply issues. Where Member States consider it appropriate, they may delegate that task to the regulatory authorities referred to in Article 39(1). Such monitoring shall, in particular, cover the balance of supply and demand on the national market, the level of expected future demand and available supplies, envisaged additional capacity being planned or under construction, and the quality and level of maintenance of the networks, as well as measures to cover peak demand and to deal with shortfalls of one or more suppliers. The competent authorities shall publish, by 31 July each year, a report outlining the findings resulting from the monitoring of those issues, as well as any measures taken or envisaged to address them and shall forward that report to the Commission forthwith.
Article 6
Regional solidarity
1. In order to safeguard a secure supply on the internal market in natural gas, Member States shall cooperate in order to promote regional and bilateral solidarity.
2. Such cooperation shall cover situations resulting or likely to result in the short term in a severe disruption of supply affecting a Member State. It shall include:
(a)
coordination of national emergency measures referred to in Article 8 of Council Directive 2004/67/EC of 26 April 2004 concerning measures to safeguard security of natural gas supply (15);
(b)
identification and, where necessary, development or upgrading of electricity and natural gas interconnections; and
(c)
conditions and practical modalities for mutual assistance.
3. The Commission and the other Member States shall be kept informed of such cooperation.
4. The Commission may adopt Guidelines for regional cooperation in a spirit of solidarity. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 51(3).
Article 7
Promotion of regional cooperation
1. Member States as well as the regulatory authorities shall cooperate with each other for the purpose of integrating their national markets at one and more regional levels, as a first step towards the creation of a fully liberalised internal market. In particular, the regulatory authorities where Member States have so provided or Member States shall promote and facilitate the cooperation of transmission system operators at a regional level, including on cross-border issues with the aim of creating a competitive internal market in natural gas, foster the consistency of their legal, regulatory and technical framework and facilitate integration of the isolated systems forming gas islands that persist in the Community. The geographical areas covered by such regional cooperation shall include cooperation in geographical areas defined in accordance with Article 12(3) of Regulation (EC) No 715/2009. Such cooperation may cover other geographical areas.
2. The Agency shall cooperate with national regulatory authorities and transmission system operators to ensure the compatibility of regulatory frameworks between the regions with the aim of creating a competitive internal market in natural gas. Where the Agency considers that binding rules on such cooperation are required, it shall make appropriate recommendations.
3. Member States shall ensure, through the implementation of this Directive, that transmission system operators have one or more integrated system(s) at regional level covering two or more Member States for capacity allocation and for checking the security of the network.
4. Where vertically integrated transmission system operators participate in a joint undertaking established for implementing such cooperation, the joint undertaking shall establish and implement a compliance programme which sets out the measures to be taken to ensure that discriminatory and anticompetitive conduct is excluded. That compliance programme shall set out the specific obligations of employees to meet the objective of excluding discriminatory and anticompetitive conduct. It shall be subject to the approval of the Agency. Compliance with the programme shall be independently monitored by the compliance officers of the vertically integrated transmission system operators.
Article 8
Technical rules
The regulatory authorities where Member States have so provided or Member States shall ensure that technical safety criteria are defined and that technical rules establishing the minimum technical design and operational requirements for the connection to the system of LNG facilities, storage facilities, other transmission or distribution systems, and direct lines, are developed and made public. Those technical rules shall ensure the interoperability of systems and shall be objective and non-discriminatory. The Agency may make appropriate recommendations towards achieving compatibility of those rules, where appropriate. Those rules shall be notified to the Commission in accordance with Article 8 of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (16).
CHAPTER III
TRANSMISSION, STORAGE AND LNG
Article 9
Unbundling of transmission systems and transmission system operators
1. Member States shall ensure that from 3 March 2012:
(a)
each undertaking which owns a transmission system acts as a transmission system operator;
(b)
the same person or persons are entitled neither:
(i)
directly or indirectly to exercise control over an undertaking performing any of the functions of production or supply, and directly or indirectly to exercise control or exercise any right over a transmission system operator or over a transmission system; nor
(ii)
directly or indirectly to exercise control over a transmission system operator or over a transmission system, and directly or indirectly to exercise control or exercise any right over an undertaking performing any of the functions of production or supply;
(c)
the same person or persons are not entitled to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking, of a transmission system operator or a transmission system, and directly or indirectly to exercise control or exercise any right over an undertaking performing any of the functions of production or supply; and
(d)
the same person is not entitled to be a member of the supervisory board, the administrative board or bodies legally representing the undertaking, of both an undertaking performing any of the functions of production or supply and a transmission system operator or a transmission system.
2. The rights referred to in points (b) and (c) of paragraph 1 shall include, in particular:
(a)
the power to exercise voting rights;
(b)
the power to appoint members of the supervisory board, the administrative board or bodies legally representing the undertaking; or
(c)
the holding of a majority share.
3. For the purpose of paragraph 1(b), the notion ‘undertaking performing any of the functions of production or supply’ shall include ‘undertaking performing any of the functions of generation and supply’ within the meaning of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity (17), and the terms ‘transmission system operator’ and ‘transmission system’ shall include ‘transmission system operator’ and ‘transmission system’ within the meaning of that Directive.
4. Member States may allow for derogations from points (b) and (c) of paragraphs 1 until 3 March 2013, provided that transmission system operators are not part of a vertically integrated undertaking.
5. The obligation set out in paragraph 1(a) of this Article shall be deemed to be fulfilled in a situation where two or more undertakings which own transmission systems have created a joint venture which acts as a transmission system operator in two or more Member States for the transmission systems concerned. No other undertaking may be part of the joint venture, unless it has been approved under Article 14 as an independent system operator or as an independent transmission operator for the purposes of Chapter IV.
6. For the implementation of this Article, where the person referred to in points (b), (c) and (d) of paragraph 1 is the Member State or another public body, two separate public bodies exercising control over a transmission system operator or over a transmission system on the one hand, and over an undertaking performing any of the functions of production or supply on the other, shall be deemed not to be the same person or persons.
7. Member States shall ensure that neither commercially sensitive information referred to in Article 16 held by a transmission system operator which was part of a vertically integrated undertaking, nor the staff of such a transmission system operator, is transferred to undertakings performing any of the functions of production and supply.
8. Where on 3 September 2009, the transmission system belongs to a vertically integrated undertaking a Member State may decide not to apply paragraph 1.
In such case, the Member State concerned shall either:
(a)
designate an independent system operator in accordance with Article 14, or
(b)
comply with the provisions of Chapter IV.
9. Where, on 3 September 2009, the transmission system belongs to a vertically integrated undertaking and there are arrangements in place which guarantee more effective independence of the transmission system operator than the provisions of Chapter IV, a Member State may decide not to apply paragraph 1.
10. Before an undertaking is approved and designated as a transmission system operator under paragraph 9 of this Article, it shall be certified according to the procedures laid down in Article 10(4), (5) and (6) of this Directive and in Article 3 of Regulation (EC) No 715/2009, pursuant to which the Commission shall verify that the arrangements in place clearly guarantee more effective independence of the transmission system operator than the provisions of Chapter IV.
11. Vertically integrated undertakings which own a transmission system shall not in any event be prevented from taking steps to comply with paragraph 1.
12. Undertakings performing any of the functions of production or supply shall not in any event be able to directly or indirectly take control over or exercise any right over unbundled transmission system operators in Member States which apply paragraph 1.
Article 10
Designation and certification of transmission system operators
1. Before an undertaking is approved and designated as transmission system operator, it shall be certified according to the procedures laid down in paragraphs 4, 5 and 6 of this Article and in Article 3 of Regulation (EC) No 715/2009.
2. Undertakings which own a transmission system and which have been certified by the national regulatory authority as having complied with the requirements of Article 9, pursuant to the certification procedure, shall be approved and designated as transmission system operators by Member States. The designation of transmission system operators shall be notified to the Commission and published in the Official Journal of the European Union.
3. Transmission system operators shall notify to the regulatory authority any planned transaction which may require a reassessment of their compliance with the requirements of Article 9.
4. The regulatory authorities shall monitor the continuing compliance of transmission system operators with the requirements of Article 9. They shall open a certification procedure to ensure such compliance:
(a)
upon notification by the transmission system operator pursuant to paragraph 3;
(b)
on their own initiative where they have knowledge that a planned change in rights or influence over transmission system owners or transmission system operators may lead to an infringement of Article 9, or where they have reason to believe that such an infringement may have occurred; or
(c)
upon a reasoned request from the Commission.
5. The regulatory authorities shall adopt a decision on the certification of a transmission system operator within a period of four months from the date of the notification by the transmission system operator or from the date of the Commission request. After expiry of that period, the certification shall be deemed to be granted. The explicit or tacit decision of the regulatory authority shall become effective only after the conclusion of the procedure set out in paragraph 6.
6. The explicit or tacit decision on the certification of a transmission system operator shall be notified without delay to the Commission by the regulatory authority, together with all the relevant information with respect to that decision. The Commission shall act in accordance with the procedure laid down in Article 3 of Regulation (EC) No 715/2009.
7. The regulatory authorities and the Commission may request from transmission system operators and undertakings performing any of the functions of production or supply any information relevant for the fulfilment of their tasks under this Article.
8. The regulatory authorities and the Commission shall preserve the confidentiality of commercially sensitive information.
Article 11
Certification in relation to third countries
1. Where certification is requested by a transmission system owner or a transmission system operator which is controlled by a person or persons from a third country or third countries, the regulatory authority shall notify the Commission.
The regulatory authority shall also notify to the Commission without delay any circumstances that would result in a person or persons from a third country or third countries acquiring control of a transmission system or a transmission system operator.
2. The transmission system operator shall notify to the regulatory authority any circumstances that would result in a person or persons from a third country or third countries acquiring control of the transmission system or the transmission system operator.
3. The regulatory authority shall adopt a draft decision on the certification of a transmission system operator within four months from the date of notification by the transmission system operator. It shall refuse the certification if it has not been demonstrated:
(a)
that the entity concerned complies with the requirements of Article 9; and
(b)
to the regulatory authority or to another competent authority designated by the Member State that granting certification will not put at risk the security of energy supply of the Member State and the Community. In considering that question the regulatory authority or other competent authority so designated shall take into account:
(i)
the rights and obligations of the Community with respect to that third country arising under international law, including any agreement concluded with one or more third countries to which the Community is a party and which addresses the issues of security of energy supply;
(ii)
the rights and obligations of the Member State with respect to that third country arising under agreements concluded with it, insofar as they are in compliance with Community law; and
(iii)
other specific facts and circumstances of the case and the third country concerned.
4. The regulatory authority shall notify the decision to the Commission without delay, together with all the relevant information with respect to that decision.
5. Member States shall provide for the regulatory authority or the designated competent authority referred to in paragraph 3(b), before the regulatory authority adopts a decision on the certification, to request an opinion from the Commission on whether:
(a)
the entity concerned complies with the requirements of Article 9; and
(b)
granting certification will not put at risk the security of energy supply to the Community.
6. The Commission shall examine the request referred to in paragraph 5 as soon as it is received. Within a period of two months after receiving the request, it shall deliver its opinion to the national regulatory authority or, if the request was made by the designated competent authority, to that authority.
In preparing the opinion, the Commission may request the views of the Agency, the Member State concerned, and interested parties. In the event that the Commission makes such a request, the two-month period shall be extended by two months.
In the absence of an opinion by the Commission within the period referred to in the first and second subparagraphs, the Commission is deemed not to raise objections to the decision of the regulatory authority.
7. When assessing whether the control by a person or persons from a third country or third countries will put at risk the security of energy supply to the Community, the Commission shall take into account:
(a)
the specific facts of the case and the third country or third countries concerned; and
(b)
the rights and obligations of the Community with respect to that third country or third countries arising under international law, including an agreement concluded with one or more third countries to which the Community is a party and which addresses the issues of security of supply.
8. The national regulatory authority shall, within a period of two months after the expiry of the period referred to in paragraph 6, adopt its final decision on the certification. In adopting its final decision the national regulatory authority shall take utmost account of the Commission’s opinion. In any event Member States shall have the right to refuse certification where granting certification puts at risk the Member State’s security of energy supply or the security of energy supply of another Member State. Where the Member State has designated another competent authority to assess paragraph 3(b), it may require the national regulatory authority to adopt its final decision in accordance with the assessment of that competent authority. The regulatory authority’s final decision and the Commission’s opinion shall be published together. Where the final decision diverges from the Commission’s opinion, the Member State concerned shall provide and publish, together with that decision, the reasoning underlying such decision.
9. Nothing in this Article shall affect the right of Member States to exercise, in compliance with Community law, national legal controls to protect legitimate public security interests.
10. The Commission may adopt Guidelines setting out the details of the procedure to be followed for the application of this Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 51(3).
11. This Article, with exception of paragraph 3(a), shall also apply to Member States which are subject to a derogation under Article 49.
Article 12
Designation of storage and LNG system operators
Member States shall designate, or shall require natural gas undertakings which own storage or LNG facilities to designate, for a period of time to be determined by Member States, having regard to considerations of efficiency and economic balance, one or more storage and LNG system operators.
Article 13
Tasks of transmission, storage and/or LNG system operators
1. Each transmission, storage and/or LNG system operator shall:
(a)
operate, maintain and develop under economic conditions secure, reliable and efficient transmission, storage and/or LNG facilities to secure an open market, with due regard to the environment, ensure adequate means to meet service obligations;
(b)
refrain from discriminating between system users or classes of system users, particularly in favour of its related undertakings;
(c)
provide any other transmission system operator, any other storage system operator, any other LNG system operator and/or any distribution system operator, sufficient information to ensure that the transport and storage of natural gas may take place in a manner compatible with the secure and efficient operation of the interconnected system; and
(d)
provide system users with the information they need for efficient access to the system.
2. Each transmission system operator shall build sufficient cross-border capacity to integrate European transmission infrastructure accommodating all economically reasonable and technically feasible demands for capacity and taking into account security of gas supply.
3. Rules adopted by transmission system operators for balancing the gas transmission system shall be objective, transparent and non-discriminatory, including rules for the charging of system users of their networks for energy imbalance. Terms and conditions, including rules and tariffs, for the provision of such services by transmission system operators shall be established pursuant to a methodology compatible with Article 41(6) in a non-discriminatory and cost-reflective way and shall be published.
4. The regulatory authorities where Member States have so provided or Member States may require transmission system operators to comply with minimum standards for the maintenance and development of the transmission system, including interconnection capacity.
5. Transmission system operators shall procure the energy they use for the carrying out of their functions according to transparent, non-discriminatory and market based procedures.
Article 14
Independent system operators
1. Where the transmission system belongs to a vertically integrated undertaking on 3 September 2009, Member States may decide not to apply Article 9(1) and designate an independent system operator upon a proposal from the transmission system owner. Such designation shall be subject to approval by the Commission.
2. The Member State may approve and designate an independent system operator only where:
(a)
the candidate operator has demonstrated that it complies with the requirements of Article 9(1)(b), (c) and (d);
(b)
the candidate operator has demonstrated that it has at its disposal the required financial, technical, physical and human resources to carry out its tasks under Article 13;
(c)
the candidate operator has undertaken to comply with a ten-year network development plan monitored by the regulatory authority;
(d)
the transmission system owner has demonstrated its ability to comply with its obligations under paragraph 5. To that end, it shall provide all the draft contractual arrangements with the candidate undertaking and any other relevant entity; and
(e)
the candidate operator has demonstrated its ability to comply with its obligations under Regulation (EC) No 715/2009 including the cooperation of transmission system operators at European and regional level.
3. Undertakings which have been certified by the regulatory authority as having complied with the requirements of Article 11 and of paragraph 2 of this Article shall be approved and designated as independent system operators by Member States. The certification procedure in either Article 10 of this Directive and Article 3 of Regulation (EC) No 715/2009 or in Article 11 of this Directive shall be applicable.
4. Each independent system operator shall be responsible for granting and managing third-party access, including the collection of access charges and congestion charges, for operating, maintaining and developing the transmission system, as well as for ensuring the long-term ability of the system to meet reasonable demand through investment planning. When developing the transmission system the independent system operator shall be responsible for planning (including authorisation procedure), construction and commissioning of the new infrastructure. For this purpose, the independent system operator shall act as a transmission system operator in accordance with this Chapter. The transmission system owner shall not be responsible for granting and managing third-party access, nor for investment planning.
5. Where an independent system operator has been designated, the transmission system owner shall:
(a)
provide all the relevant cooperation and support to the independent system operator for the fulfilment of its tasks, including in particular all relevant information;
(b)
finance the investments decided by the independent system operator and approved by the regulatory authority, or give its agreement to financing by any interested party including the independent system operator. The relevant financing arrangements shall be subject to approval by the regulatory authority. Prior to such approval, the regulatory authority shall consult the transmission system owner together with other interested parties;
(c)
provide for the coverage of liability relating to the network assets, excluding the liability relating to the tasks of the independent system operator; and
(d)
provide guarantees to facilitate financing any network expansions with the exception of those investments where, pursuant to point (b), it has given its agreement to financing by any interested party including the independent system operator.
6. In close cooperation with the regulatory authority, the relevant national competition authority shall be granted all relevant powers to effectively monitor compliance of the transmission system owner with its obligations under paragraph 5.
Article 15
Unbundling of transmission system owners and storage system operators
1. A transmission system owner, where an independent system operator has been appointed, and a storage system operator which are part of vertically integrated undertakings shall be independent at least in terms of their legal form, organisation and decision making from other activities not relating to transmission, distribution and storage.
This Article shall apply only to storage facilities that are technically and/or economically necessary for providing efficient access to the system for the supply of customers pursuant to Article 33.
2. In order to ensure the independence of the transmission system owner and storage system operator referred to in paragraph 1, the following minimum criteria shall apply:
(a)
persons responsible for the management of the transmission system owner and storage system operator shall not participate in company structures of the integrated natural gas undertaking responsible, directly or indirectly, for the day-to-day operation of the production and supply of natural gas;
(b)
appropriate measures shall be taken to ensure that the professional interests of persons responsible for the management of the transmission system owner and storage system operator are taken into account in a manner that ensures that they are capable of acting independently;
(c)
the storage system operator shall have effective decision-making rights, independent from the integrated natural gas undertaking, with respect to assets necessary to operate, maintain or develop the storage facilities. This shall not preclude the existence of appropriate coordination mechanisms to ensure that the economic and management supervision rights of the parent company in respect of return on assets regulated indirectly in accordance with Article 41(6) in a subsidiary are protected. In particular, this shall enable the parent company to approve the annual financial plan, or any equivalent instrument, of the storage system operator and to set global limits on the levels of indebtedness of its subsidiary. It shall not permit the parent company to give instructions regarding day-to-day operations, nor with respect to individual decisions concerning the construction or upgrading of storage facilities, that do not exceed the terms of the approved financial plan, or any equivalent instrument; and
(d)
the transmission system owner and the storage system operator shall establish a compliance programme, which sets out measures taken to ensure that discriminatory conduct is excluded, and ensure that observance of it is adequately monitored. The compliance programme shall set out the specific obligations of employees to meet those objectives. An annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance programme to the regulatory authority and shall be published.
3. The Commission may adopt Guidelines to ensure full and effective compliance of the transmission system owner and of the storage system operator with paragraph 2 of this Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 51(3).
Article 16
Confidentiality for transmission system operators and transmission system owners
1. Without prejudice to Article 30 or any other legal duty to disclose information, each transmission, storage and/or LNG system operator, and each transmission system owner, shall preserve the confidentiality of commercially sensitive information obtained in the course of carrying out its activities, and shall prevent information about its own activities which may be commercially advantageous from being disclosed in a discriminatory manner. In particular, it shall not disclose any commercially sensitive information to the remaining parts of the undertaking, unless this is necessary for carrying out a business transaction. In order to ensure the full respect of the rules on information unbundling, Member States shall ensure that the transmission system owner including, in the case of a combined operator, the distribution system operator, and the remaining part of the undertaking do not use joint services, such as joint legal services, apart from purely administrative or IT functions.
2. Transmission, storage and/or LNG system operators shall not, in the context of sales or purchases of natural gas by related undertakings, misuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to the system.
3. Information necessary for effective competition and the efficient functioning of the market shall be made public. That obligation shall be without prejudice to protecting commercially sensitive information.
CHAPTER IV
INDEPENDENT TRANSMISSION OPERATOR
Article 17
Assets, equipment, staff and identity
1. Transmission system operators shall be equipped with all human, technical, physical and financial resources necessary for fulfilling their obligations under this Directive and carrying out the activity of gas transmission, in particular:
(a)
assets that are necessary for the activity of gas transmission, including the transmission system, shall be owned by the transmission system operator;
(b)
personnel necessary for the activity of gas transmission, including the performance of all corporate tasks, shall be employed by the transmission system operator;
(c)
leasing of personnel and rendering of services, to and from any other parts of the vertically integrated undertaking shall be prohibited. A transmission system operator may, however, render services to the vertically integrated undertaking as long as:
(i)
the provision of those services does not discriminate between system users, is available to all system users on the same terms and conditions and does not restrict, distort or prevent competition in production or supply; and
(ii)
the terms and conditions of the provision of those services are approved by the regulatory authority;
(d)
without prejudice to the decisions of the Supervisory Body under Article 20, appropriate financial resources for future investment projects and/or for the replacement of existing assets shall be made available to the transmission system operator in due time by the vertically integrated undertaking following an appropriate request from the transmission system operator.
2. The activity of gas transmission shall include at least the following tasks in addition to those listed in Article 13:
(a)
the representation of the transmission system operator and contacts to third parties and the regulatory authorities;
(b)
the representation of the transmission system operator within the European Network of Transmission System Operators for Gas (ENTSO for Gas);
(c)
granting and managing third-party access on a non-discriminatory basis between system users or classes of system users;
(d)
the collection of all the transmission system related charges including access charges, balancing charges for ancillary services such as gas treatment, purchasing of services (balancing costs, energy for losses);
(e)
the operation, maintenance and development of a secure, efficient and economic transmission system;
(f)
investment planning ensuring the long-term ability of the system to meet reasonable demand and guaranteeing security of supply;
(g)
the setting up of appropriate joint ventures, including with one or more transmission system operators, gas exchanges, and the other relevant actors pursuing the objective to develop the creation of regional markets or to facilitate the liberalisation process; and
(h)
all corporate services, including legal services, accountancy and IT services.
3. Transmission system operators shall be organised in a legal form as referred to in Article 1 of Council Directive 68/151/EEC (18).
4. The transmission system operator shall not, in its corporate identity, communication, branding and premises, create confusion in respect of the separate identity of the vertically integrated undertaking or any part thereof.
5. The transmission system operator shall not share IT systems or equipment, physical premises and security access systems with any part of the vertically integrated undertaking, nor use the same consultants or external contractors for IT systems or equipment, and security access systems.
6. The accounts of transmission system operators shall be audited by an auditor other than the one auditing the vertically integrated undertaking or any part thereof.
Article 18
Independence of the transmission system operator
1. Without prejudice to the decisions of the Supervisory Body under Article 20, the transmission system operator shall have:
(a)
effective decision-making rights, independent from the vertically integrated undertaking, with respect to assets necessary to operate, maintain or develop the transmission system; and
(b)
the power to raise money on the capital market in particular through borrowing and capital increase.
2. The transmission system operator shall at all times act so as to ensure it has the resources it needs in order to carry out the activity of transmission properly and efficiently and develop and maintain an efficient, secure and economic transmission system.
3. Subsidiaries of the vertically integrated undertaking performing functions of production or supply shall not have any direct or indirect shareholding in the transmission system operator. The transmission system operator shall neither have any direct or indirect shareholding in any subsidiary of the vertically integrated undertaking performing functions of production or supply, nor receive dividends or any other financial benefit from that subsidiary.
4. The overall management structure and the corporate statutes of the transmission system operator shall ensure effective independence of the transmission system operator in compliance with this Chapter. The vertically integrated undertaking shall not determine, directly or indirectly, the competitive behaviour of the transmission system operator in relation to the day to day activities of the transmission system operator and management of the network, or in relation to activities necessary for the preparation of the ten-year network development plan developed pursuant to Article 22.
5. In fulfilling their tasks in Article 13 and Article 17(2) of this Directive, and in complying with Article 13(1), Article 14(1)(a), Article 16(2), (3) and (5), Article 18(6) and Article 21(1) of Regulation (EC) No 715/2009, transmission system operators shall not discriminate against different persons or entities and shall not restrict, distort or prevent competition in production or supply.
6. Any commercial and financial relations between the vertically integrated undertaking and the transmission system operator, including loans from the transmission system operator to the vertically integrated undertaking, shall comply with market conditions. The transmission system operator shall keep detailed records of such commercial and financial relations and make them available to the regulatory authority upon request.
7. The transmission system operator shall submit for approval by the regulatory authority all commercial and financial agreements with the vertically integrated undertaking.
8. The transmission system operator shall inform the regulatory authority of the financial resources, referred to in Article 17(1)(d), available for future investment projects and/or for the replacement of existing assets.
9. The vertically integrated undertaking shall refrain from any action impeding or prejudicing the transmission system operator from complying with its obligations in this Chapter and shall not require the transmission system operator to seek permission from the vertically integrated undertaking in fulfilling those obligations.
10. An undertaking which has been certified by the regulatory authority as being in compliance with the requirements of this Chapter shall be approved and designated as a transmission system operator by the Member State concerned. The certification procedure in either Article 10 of this Directive and Article 3 of Regulation (EC) No 715/2009 or in Article 11 of this Directive shall apply.
Article 19
Independence of the staff and the management of the transmission system operator
1. Decisions regarding the appointment and renewal, working conditions including remuneration, and termination of the term of office, of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator shall be taken by the Supervisory Body of the transmission system operator appointed in accordance with Article 20.
2. The identity of, and the conditions governing the term, the duration and the termination of office of, the persons nominated by the Supervisory Body for appointment or renewal as persons responsible for the executive management and/or as members of the administrative bodies of the transmission system operator, and the reasons for any proposed decision terminating such term of office, shall be notified to the regulatory authority. Those conditions and the decisions referred to in paragraph 1 shall become binding only if the regulatory authority has raised no objections within three weeks of notification.
The regulatory authority may object to the decisions referred to in paragraph 1 where:
(a)
doubts arise as to the professional independence of a nominated person responsible for the management and/or member of the administrative bodies; or
(b)
in the case of premature termination of a term of office, doubts exist regarding the justification of such premature termination.
3. No professional position or responsibility, interest or business relationship, directly or indirectly, with the vertically integrated undertaking or any part of it or its controlling shareholders other than the transmission system operator shall be exercised for a period of three years before the appointment of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator who are subject to this paragraph.
4. The persons responsible for the management and/or members of the administrative bodies, and employees of the transmission system operator shall have no other professional position or responsibility, interest or business relationship, directly or indirectly, with any other part of the vertically integrated undertaking or with its controlling shareholders.
5. The persons responsible for the management and/or members of the administrative bodies, and employees of the transmission system operator shall hold no interest in or receive any financial benefit, directly or indirectly, from any part of the vertically integrated undertaking other than the transmission system operator. Their remuneration shall not depend on activities or results of the vertically integrated undertaking other than those of the transmission system operator.
6. Effective rights of appeal to the regulatory authority shall be guaranteed for any complaints by the persons responsible for the management and/or members of the administrative bodies of the transmission system operator against premature terminations of their term of office.
7. After termination of their term of office in the transmission system operator, the persons responsible for its management and/or members of its administrative bodies shall have no professional position or responsibility, interest or business relationship with any part of the vertically integrated undertaking other than the transmission system operator, or with its controlling shareholders for a period of not less than four years.
8. Paragraph 3 shall apply to the majority of the persons responsible for the management and/or members of the administrative bodies of the transmission system operator.
The persons responsible for the management and/or members of the administrative bodies of the transmission system operator who are not subject to paragraph 3 shall have exercised no management or other relevant activity in the vertically integrated undertaking for a period of at least six months before their appointment.
The first subparagraph of this paragraph and paragraphs 4 to 7 shall be applicable to all the persons belonging to the executive management and to those directly reporting to them on matters related to the operation, maintenance or development of the network.
Article 20
Supervisory Body
1. The transmission system operator shall have a Supervisory Body which shall be in charge of taking decisions which may have a significant impact on the value of the assets of the shareholders within the transmission system operator, in particular decisions regarding the approval of the annual and longer-term financial plans, the level of indebtedness of the transmission system operator and the amount of dividends distributed to shareholders. The decisions falling under the remit of the Supervisory Body shall exclude those that are related to the day to day activities of the transmission system operator and management of the network, and in relation to activities necessary for the preparation of the ten-year network development plan developed pursuant to Article 22.
2. The Supervisory Body shall be composed of members representing the vertically integrated undertaking, members representing third party shareholders and, where the relevant legislation of a Member State so provides, members representing other interested parties such as employees of the transmission system operator.
3. The first subparagraph of Article 19(2) and Article 19(3) to (7) shall apply to at least half of the members of the Supervisory Body minus one.
Point (b) of the second subparagraph of Article 19(2) shall apply to all the members of the Supervisory Body.
Article 21
Compliance programme and compliance officer
1. Member States shall ensure that transmission system operators establish and implement a compliance programme which sets out the measures taken in order to ensure that discriminatory conduct is excluded, and ensure that the compliance with that programme is adequately monitored. The compliance programme shall set out the specific obligations of employees to meet those objectives. It shall be subject to approval by the regulatory authority. Without prejudice to the powers of the national regulator, compliance with the program shall be independently monitored by a compliance officer.
2. The compliance officer shall be appointed by the Supervisory Body, subject to the approval by the regulatory authority. The regulatory authority may refuse the approval of the compliance officer only for reasons of lack of independence or professional capacity. The compliance officer may be a natural or legal person. Article 19(2) to (8) shall apply to the compliance officer.
3. The compliance officer shall be in charge of:
(a)
monitoring the implementation of the compliance programme;
(b)
elaborating an annual report, setting out the measures taken in order to implement the compliance programme and submitting it to the regulatory authority;
(c)
reporting to the Supervisory Body and issuing recommendations on the compliance programme and its implementation;
(d)
notifying the regulatory authority on any substantial breaches with regard to the implementation of the compliance programme; and
(e)
reporting to the regulatory authority on any commercial and financial relations between the vertically integrated undertaking and the transmission system operator.
4. The compliance officer shall submit the proposed decisions on the investment plan or on individual investments in the network to the regulatory authority. This shall occur at the latest when the management and/or the competent administrative body of the transmission system operator submits them to the Supervisory Body.
5. Where the vertically integrated undertaking, in the general assembly or through the vote of the members of the Supervisory Body it has appointed, has prevented the adoption of a decision with the effect of preventing or delaying investments, which under the ten-year network development plan, was to be executed in the following three years, the compliance officer shall report this to the regulatory authority, which then shall act in accordance with Article 22.
6. The conditions governing the mandate or the employment conditions of the compliance officer, including the duration of his mandate, shall be subject to approval by the regulatory authority. Those conditions shall ensure the independence of the compliance officer, including by providing it with all the resources necessary for fulfilling his duties. During his mandate, the compliance officer shall have no other professional position, responsibility or interest, directly or indirectly, in or with any part of the vertically integrated undertaking or with its controlling shareholders.
7. The compliance officer shall report regularly, either orally or in writing, to the regulatory authority and shall have the right to report regularly, either orally or in writing, to the Supervisory Body of the transmission system operator.
8. The compliance officer may attend all meetings of the management or administrative bodies of the transmission system operator, and those of the Supervisory Body and the general assembly. The compliance officer shall attend all meetings that address the following matters:
(a)
conditions for access to the network, as defined in Regulation (EC) No 715/2009, in particular regarding tariffs, third party access services, capacity allocation and congestion management, transparency, balancing and secondary markets;
(b)
projects undertaken in order to operate, maintain and develop the transmission system, including investments in new transport connections, in expansion of capacity and in optimisation of existing capacity;
(c)
energy purchases or sales necessary for the operation of the transmission system.
9. The compliance officer shall monitor the compliance of the transmission system operator with Article 16.
10. The compliance officer shall have access to all relevant data and to the offices of the transmission system operator and to all the information necessary for the fulfilment of his task.
11. After prior approval by the regulatory authority, the Supervisory Body may dismiss the compliance officer. It shall dismiss the compliance officer for reasons of lack of independence or professional capacity upon request of the regulatory authority.
12. The compliance officer shall have access to the offices of the transmission system operator without prior announcement.
Article 22
Network development and powers to make investment decisions
1. Every year, transmission system operators shall submit to the regulatory authority a ten-year network development plan based on existing and forecast supply and demand after having consulted all the relevant stakeholders. That network development plan shall contain efficient measures in order to guarantee the adequacy of the system and the security of supply.
2. The ten-year network development plan shall, in particular:
(a)
indicate to market participants the main transmission infrastructure that needs to be built or upgraded over the next ten years;
(b)
contain all the investments already decided and identify new investments which have to be executed in the next three years; and
(c)
provide for a time frame for all investment projects.
3. When elaborating the ten-year network development plan, the transmission system operator shall make reasonable assumptions about the evolution of the production, supply, consumption and exchanges with other countries, taking into account investment plans for regional and Community-wide networks, as well as investment plans for storage and LNG regasification facilities.
4. The regulatory authority shall consult all actual or potential system users on the ten-year network development plan in an open and transparent manner. Persons or undertakings claiming to be potential system users may be required to substantiate such claims. The regulatory authority shall publish the result of the consultation process, in particular possible needs for investments.
5. The regulatory authority shall examine whether the ten-year network development plan covers all investment needs identified during the consultation process, and whether it is consistent with the non-binding Community-wide ten-year network development plan (Community-wide network development plan) referred to in Article 8(3)(b) of Regulation (EC) No 715/2009. If any doubt arises as to the consistency with the Community-wide network development plan, the regulatory authority shall consult the Agency. The regulatory authority may require the transmission system operator to amend its ten-year network development plan.
6. The regulatory authority shall monitor and evaluate the implementation of the ten-year network development plan.
7. In circumstances where the transmission system operator, other than for overriding reasons beyond its control, does not execute an investment, which, under the ten-year network development plan, was to be executed in the following three years, Member States shall ensure that the regulatory authority is required to take at least one of the following measures to ensure that the investment in question is made if such investment is still relevant on the basis of the most recent ten-year network development plan:
(a)
to require the transmission system operator to execute the investments in question;
(b)
to organise a tender procedure open to any investors for the investment in question; or
(c)
to oblige the transmission system operator to accept a capital increase to finance the necessary investments and allow independent investors to participate in the capital.
Where the regulatory authority has made use of its powers under point (b) of the first subparagraph, it may oblige the transmission system operator to agree to one or more of the following:
(a)
financing by any third party;
(b)
construction by any third party;
(c)
building the new assets concerned itself;
(d)
operating the new asset concerned itself.
The transmission system operator shall provide the investors with all information needed to realise the investment, shall connect new assets to the transmission network and shall generally make its best efforts to facilitate the implementation of the investment project.
The relevant financial arrangements shall be subject to approval by the regulatory authority.
8. Where the regulatory authority has made use of its powers under the first subparagraph of paragraph 7, the relevant tariff regulations shall cover the costs of the investments in question.
Article 23
Decision-making powers regarding the connection of storage facilities, LNG regasification facilities and industrial customers to the transmission system
1. The transmission system operator shall establish and publish transparent and efficient procedures and tariffs for non-discriminatory connection of storage facilities, LNG regasification facilities and industrial customers to the transmission system. Those procedures shall be subject to approval by the regulatory authority.
2. The transmission system operator shall not be entitled to refuse the connection of a new storage facility, LNG regasification facility or industrial customer on the grounds of possible future limitations to available network capacities or additional costs linked with necessary capacity increase. The transmission system operator shall ensure sufficient entry and exit capacity for the new connection.
CHAPTER V
DISTRIBUTION AND SUPPLY
Article 24
Designation of distribution system operators
Member States shall designate, or shall require undertakings which own or are responsible for distribution systems to designate, for a period of time to be determined by Member States, having regard to considerations of efficiency and economic balance, one or more distribution system operators and shall ensure that those operators act in accordance with Articles 25, 26 and 27.
Article 25
Tasks of distribution system operators
1. Each distribution system operator shall be responsible for ensuring the long-term ability of the system to meet reasonable demands for the distribution of gas, and for operating, maintaining and developing under economic conditions a secure, reliable and efficient system in its area, with due regard for the environment and energy efficiency.
2. In any event, the distribution system operator shall not discriminate between system users or classes of system users, particularly in favour of its related undertakings.
3. Each distribution system operator shall provide any other distribution, transmission, LNG, and/or storage system operator with sufficient information to ensure that the transport and storage of natural gas takes place in a manner compatible with the secure and efficient operation of the interconnected system.
4. Each distribution system operator shall provide system users with the information they need for efficient access to, including use of, the system.
5. Where a distribution system operator is responsible for balancing the distribution system, rules adopted by it for that purpose shall be objective, transparent and non-discriminatory, including rules for the charging of system users for energy imbalance. Terms and conditions, including rules and tariffs, for the provision of such services by distribution system operators shall be established pursuant to a methodology compatible with Article 41(6) in a non-discriminatory and cost-reflective way and shall be published.
Article 26
Unbundling of distribution system operators
1. Where the distribution system operator is part of a vertically integrated undertaking, it shall be independent at least in terms of its legal form, organisation and decision making from other activities not relating to distribution. Those rules shall not create an obligation to separate the ownership of assets of the distribution system from the vertically integrated undertaking.
2. In addition to the requirements under paragraph 1, where the distribution system operator is part of a vertically integrated undertaking, it shall be independent in terms of its organisation and decision-making from the other activities not related to distribution. In order to achieve this, the following minimum criteria shall apply:
(a)
those persons responsible for the management of the distribution system operator must not participate in company structures of the integrated natural gas undertaking responsible, directly or indirectly, for the day-to-day operation of the production, transmission and supply of natural gas;
(b)
appropriate measures must be taken to ensure that the professional interests of persons responsible for the management of the distribution system operator are taken into account in a manner that ensures that they are capable of acting independently;
(c)
the distribution system operator must have effective decision-making rights, independent from the integrated natural gas undertaking, with respect to assets necessary to operate, maintain or develop the network. In order to fulfil those tasks, the distribution system operator shall have at its disposal the necessary resources including human, technical, financial and physical resources. This should not prevent the existence of appropriate coordination mechanisms to ensure that the economic and management supervision rights of the parent company in respect of return on assets, regulated indirectly in accordance with Article 41(6) in a subsidiary are protected. In particular, this shall enable the parent company to approve the annual financial plan, or any equivalent instrument, of the distribution system operator and to set global limits on the levels of indebtedness of its subsidiary. It shall not permit the parent company to give instructions regarding day-to-day operations, nor with respect to individual decisions concerning the construction or upgrading of distribution lines, that do not exceed the terms of the approved financial plan, or any equivalent instrument; and
(d)
the distribution system operator must establish a compliance programme, which sets out measures taken to ensure that discriminatory conduct is excluded, and ensure that observance of it is adequately monitored. The compliance programme shall set out the specific obligations of employees to meet that objective. An annual report, setting out the measures taken, shall be submitted by the person or body responsible for monitoring the compliance programme, the compliance officer of the distribution system operator, to the regulatory authority referred to in Article 39(1) and shall be published. The compliance officer of the distribution system operator shall be fully independent and shall have access to all the necessary information of the distribution system operator and any affiliated undertaking to fulfil his task.
3. Where the distribution system operator is part of a vertically integrated undertaking, the Member States shall ensure that the activities of the distribution system operator are monitored by regulatory authorities or other competent bodies so that it cannot take advantage of its vertical integration to distort competition. In particular, vertically integrated distribution system operators shall not, in their communication and branding, create confusion in respect of the separate identity of the supply branch of the vertically integrated undertaking.
4. Member States may decide not to apply paragraphs 1, 2 and 3 to integrated natural gas undertakings serving less than 100 000 connected customers.
Article 27
Confidentiality obligations of distribution system operators
1. Without prejudice to Article 30 or any other legal duty to disclose information, each distribution system operator shall preserve the confidentiality of commercially sensitive information obtained in the course of carrying out its business, and shall prevent information about its own activities which may be commercially advantageous from being disclosed in a discriminatory manner.
2. Distribution system operators shall not, in the context of sales or purchases of natural gas by related undertakings, abuse commercially sensitive information obtained from third parties in the context of providing or negotiating access to the system.
Article 28
Closed distribution systems
1. Member States may provide for national regulatory authorities or other competent authorities to classify a system which distributes gas within a geographically confined industrial, commercial or shared services site and does not, without prejudice to paragraph 4, supply household customers, as a closed distribution system if:
(a)
for specific technical or safety reasons, the operations or the production process of the users of that system are integrated; or
(b)
that system distributes gas primarily to the owner or operator of the system or to their related undertakings.
2. Member States may provide for national regulatory authorities to exempt the operator of a closed distribution system from the requirement under Article 32(1) that tariffs, or the methodologies underlying their calculation, are approved prior to their entry into force in accordance with Article 41.
3. Where an exemption is granted under paragraph 2, the applicable tariffs, or the methodologies underlying their calculation, shall be reviewed and approved in accordance with Article 41 upon request by a user of the closed distribution system.
4. Incidental use by a small number of households with employment or similar associations with the owner of the distribution system and located within the area served by a closed distribution system shall not preclude an exemption under paragraph 2 being granted.
Article 29
Combined operator
Article 26(1) shall not prevent the operation of a combined transmission, LNG, storage and distribution system operator provided that operator complies with Articles 9(1), or 14 and 15, or Chapter IV or falls under Article 49(6).
CHAPTER VI
UNBUNDLING AND TRANSPARENCY OF ACCOUNTS
Article 30
Right of access to accounts
1. Member States or any competent authority they designate, including the regulatory authorities referred to in Article 39(1) and the dispute settlement authorities referred to in Article 34(3), shall, insofar as necessary to carry out their functions, have right of access to the accounts of natural gas undertakings as set out in Article 31.
2. Member States and any designated competent authority, including the regulatory authorities referred to in Article 39(1) and the dispute settlement authorities, shall preserve the confidentiality of commercially sensitive information. Member States may provide for the disclosure of such information where this is necessary in order for the competent authorities to carry out their functions.
Article 31
Unbundling of accounts
1. Member States shall take the necessary steps to ensure that the accounts of natural gas undertakings are kept in accordance with paragraphs 2 to 5 of this Article. Where natural gas undertakings benefit from a derogation from this provision on the basis of Article 49(2) and (4), they shall at least keep their internal accounts in accordance with this Article.
2. Natural gas undertakings, whatever their system of ownership or legal form, shall draw up, submit to audit and publish their annual accounts in accordance with the rules of national law concerning the annual accounts of limited liability companies adopted pursuant to the Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 44(2)(g) (19) of the Treaty on the annual accounts of certain types of companies (20).
Undertakings which are not legally obliged to publish their annual accounts shall keep a copy thereof at the disposal of the public at their head office.
3. Natural gas undertakings shall, in their internal accounting, keep separate accounts for each of their transmission, distribution, LNG and storage activities as they would be required to do if the activities in question were carried out by separate undertakings, with a view to avoiding discrimination, cross-subsidisation and distortion of competition. They shall also keep accounts, which may be consolidated, for other gas activities not relating to transmission, distribution, LNG and storage. Until 1 July 2007, they shall keep separate accounts for supply activities for eligible customers and supply activities for non-eligible customers. Revenue from ownership of the transmission or distribution network shall be specified in the accounts. Where appropriate, they shall keep consolidated accounts for other, non-gas activities. The internal accounts shall include a balance sheet and a profit and loss account for each activity.
4. The audit, referred to in paragraph 2, shall, in particular, verify that the obligation to avoid discrimination and cross-subsidies referred to in paragraph 3 is respected.
5. Undertakings shall specify in their internal accounting the rules for the allocation of assets and liabilities, expenditure and income as well as for depreciation, without prejudice to nationally applicable accounting rules, which they follow in drawing up the separate accounts referred to in paragraph 3. Those internal rules may be amended only in exceptional cases. Such amendments shall be mentioned and duly substantiated.
6. The annual accounts shall indicate in notes any transaction of a certain size conducted with related undertakings.
CHAPTER VII
ORGANISATION OF ACCESS TO THE SYSTEM
Article 32
Third-party access
1. Member States shall ensure the implementation of a system of third party access to the transmission and distribution system, and LNG facilities based on published tariffs, applicable to all eligible customers, including supply undertakings, and applied objectively and without discrimination between system users. Member States shall ensure that those tariffs, or the methodologies underlying their calculation are approved prior to their entry into force in accordance with Article 41 by a regulatory authority referred to in Article 39(1) and that those tariffs - and the methodologies, where only methodologies are approved - are published prior to their entry into force.
2. Transmission system operators shall, if necessary for the purpose of carrying out their functions including in relation to cross-border transmission, have access to the network of other transmission system operators.
3. The provisions of this Directive shall not prevent the conclusion of long-term contracts in so far as they comply with Community competition rules
Article 33
Access to storage
1. For the organisation of access to storage facilities and linepack when technically and/or economically necessary for providing efficient access to the system for the supply of customers, as well as for the organisation of access to ancillary services, Member States may choose either or both of the procedures referred to in paragraphs 3 and 4. Those procedures shall operate in accordance with objective, transparent and non-discriminatory criteria.
The regulatory authorities where Member States have so provided or Member States shall define and publish criteria according to which the access regime applicable to storage facilities and linepack may be determined. They shall make public, or oblige storage and transmission system operators to make public, which storage facilities, or which parts of those storage facilities, and which linepack is offered under the different procedures referred to in paragraphs 3 and 4.
The obligation referred to in the second sentence of the second subparagraph shall be without prejudice to the right of choice granted to Member States in the first subparagraph.
2. The provisions of paragraph 1 shall not apply to ancillary services and temporary storage that are related to LNG facilities and are necessary for the re-gasification process and subsequent delivery to the transmission system.
3. In the case of negotiated access, Member States or, where Member States have so provided, the regulatory authorities shall take the necessary measures for natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system to be able to negotiate access to storage facilities and linepack, when technically and/or economically necessary for providing efficient access to the system, as well as for the organisation of access to other ancillary services. The parties shall be obliged to negotiate access to storage, linepack and other ancillary services in good faith.
Contracts for access to storage, linepack and other ancillary services shall be negotiated with the relevant storage system operator or natural gas undertakings. The regulatory authorities where Member States have so provided or Member States shall require storage system operators and natural gas undertakings to publish their main commercial conditions for the use of storage, linepack and other ancillary services by 1 January 2005 and on an annual basis every year thereafter.
When developing the conditions referred to in the second subparagraph, storage operators and natural gas undertakings shall consult system users.
4. In the case of regulated access, the regulatory authorities where Member States have so provided or Member States shall take the necessary measures to give natural gas undertakings and eligible customers either inside or outside the territory covered by the interconnected system a right to access to storage, linepack and other ancillary services, on the basis of published tariffs and/or other terms and obligations for use of that storage and linepack, when technically and/or economically necessary for providing efficient access to the system, as well as for the organisation of access to other ancillary services. The regulatory authorities where Member States have so provided or Member States shall consult system users when developing those tariffs or the methodologies for those tariffs. The right of access for eligible customers may be given by enabling them to enter into supply contracts with competing natural gas undertakings other than the owner and/or operator of the system or a related undertaking.
Article 34
Access to upstream pipeline networks
1. Member States shall take the necessary measures to ensure that natural gas undertakings and eligible customers, wherever they are located, are able to obtain access to upstream pipeline networks, including facilities supplying technical services incidental to such access, in accordance with this Article, except for the parts of such networks and facilities which are used for local production operations at the site of a field where the gas is produced. The measures shall be notified to the Commission in accordance with the provisions of Article 54.
2. The access referred to in paragraph 1 shall be provided in a manner determined by the Member State in accordance with the relevant legal instruments. Member States shall apply the objectives of fair and open access, achieving a competitive market in natural gas and avoiding any abuse of a dominant position, taking into account security and regularity of supplies, capacity which is or can reasonably be made available, and environmental protection. The following matters may be taken into account:
(a)
the need to refuse access where there is an incompatibility of technical specifications which cannot reasonably be overcome;
(b)
the need to avoid difficulties which cannot reasonably be overcome and could prejudice the efficient, current and planned future production of hydrocarbons, including that from fields of marginal economic viability;
(c)
the need to respect the duly substantiated reasonable needs of the owner or operator of the upstream pipeline network for the transport and processing of gas and the interests of all other users of the upstream pipeline network or relevant processing or handling facilities who may be affected; and
(d)
the need to apply their laws and administrative procedures, in conformity with Community law, for the grant of authorisation for production or upstream development.
3. Member States shall ensure that they have in place dispute-settlement arrangements, including an authority independent of the parties with access to all relevant information, to enable disputes relating to access to upstream pipeline networks to be settled expeditiously, taking into account the criteria in paragraph 2 and the number of parties which may be involved in negotiating access to such networks.
4. In the event of cross-border disputes, the dispute-settlement arrangements for the Member State having jurisdiction over the upstream pipeline network which refuses access shall be applied. Where, in cross-border disputes, more than one Member State covers the network concerned, the Member States concerned shall consult each other with a view to ensuring that the provisions of this Directive are applied consistently.
Article 35
Refusal of access
1. Natural gas undertakings may refuse access to the system on the basis of lack of capacity or where the access to the system would prevent them from carrying out the public service obligations referred to in Article 3(2) which are assigned to them or on the basis of serious economic and financial difficulties with take-or-pay contracts having regard to the criteria and procedures set out in Article 48 and the alternative chosen by the Member State in accordance with paragraph 1 of that Article. Duly substantiated reasons shall be given for any such a refusal.
2. Member States may take the measures necessary to ensure that the natural gas undertaking refusing access to the system on the basis of lack of capacity or a lack of connection makes the necessary enhancements as far as it is economic to do so or when a potential customer is willing to pay for them. In circumstances where Member States apply Article 4(4), Member States shall take such measures.
Article 36
New infrastructure
1. Major new gas infrastructure, i.e. interconnectors, LNG and storage facilities, may, upon request, be exempted, for a defined period of time, from the provisions of Articles 9, 32, 33 and 34 and Article 41(6), (8) and (10) under the following conditions:
(a)
the investment must enhance competition in gas supply and enhance security of supply;
(b)
the level of risk attached to the investment must be such that the investment would not take place unless an exemption was granted;
(c)
the infrastructure must be owned by a natural or legal person which is separate at least in terms of its legal form from the system operators in whose systems that infrastructure will be built;
(d)
charges must be levied on users of that infrastructure; and
(e)
the exemption must not be detrimental to competition or the effective functioning of the internal market in natural gas, or the efficient functioning of the regulated system to which the infrastructure is connected.
2. Paragraph 1 shall also apply to significant increases of capacity in existing infrastructure and to modifications of such infrastructure which enable the development of new sources of gas supply.
3. The regulatory authority referred to in Chapter VIII may, on a case-by-case basis, decide on the exemption referred to in paragraphs 1 and 2.
4. Where the infrastructure in question is located in the territory of more than one Member State, the Agency may submit an advisory opinion to the regulatory authorities of the Member States concerned, which may be used as a basis for their decision, within two months from the date on which the request for exemption was received by the last of those regulatory authorities.
Where all the regulatory authorities concerned agree on the request for exemption within six months of the date on which it was received by the last of the regulatory authorities, they shall inform the Agency of their decision.
The Agency shall exercise the tasks conferred on the regulatory authorities of the Member States concerned by the present Article:
(a)
where all regulatory authorities concerned have not been able to reach an agreement within a period of six months from the date on which the request for exemption was received by the last of those regulatory authorities; or
(b)
upon a joint request from the regulatory authorities concerned.
All regulatory authorities concerned may, jointly, request that the period referred to in point (a) of the third subparagraph is extended by up to three months.
5. Before taking a decision, the Agency shall consult the relevant regulatory authorities and the applicants.
6. An exemption may cover all or part of the capacity of the new infrastructure, or of the existing infrastructure with significantly increased capacity.
In deciding to grant an exemption, consideration shall be given, on a case-by-case basis, to the need to impose conditions regarding the duration of the exemption and non-discriminatory access to the infrastructure. When deciding on those conditions, account shall, in particular, be taken of the additional capacity to be built or the modification of existing capacity, the time horizon of the project and national circumstances.
Before granting an exemption, the regulatory authority shall decide upon the rules and mechanisms for management and allocation of capacity. The rules shall require that all potential users of the infrastructure are invited to indicate their interest in contracting capacity before capacity allocation in the new infrastructure, including for own use, takes place. The regulatory authority shall require congestion management rules to include the obligation to offer unused capacity on the market, and shall require users of the infrastructure to be entitled to trade their contracted capacities on the secondary market. In its assessment of the criteria referred to in points (a), (b) and (e) of paragraph 1, the regulatory authority shall take into account the results of that capacity allocation procedure.
The exemption decision, including any conditions referred to in the second subparagraph of this paragraph, shall be duly reasoned and published.
7. Notwithstanding paragraph 3, Member States may provide that their regulatory authority or the Agency, as the case may be, shall submit, for the purposes of the formal decision, to the relevant body in the Member State its opinion on the request for an exemption. That opinion shall be published together with the decision.
8. The regulatory authority shall transmit to the Commission, without delay, a copy of every request for exemption as of its receipt. The decision shall be notified, without delay, by the competent authority to the Commission, together with all the relevant information with respect to the decision. That information may be submitted to the Commission in aggregate form, enabling the Commission to reach a well-founded decision. In particular, the information shall contain:
(a)
the detailed reasons on the basis of which the regulatory authority, or Member State, granted or refused the exemption together with a reference to paragraph 1 including the relevant point or points of that paragraph on which such decision is based, including the financial information justifying the need for the exemption;
(b)
the analysis undertaken of the effect on competition and the effective functioning of the internal market in natural gas resulting from the grant of the exemption;
(c)
the reasons for the time period and the share of the total capacity of the gas infrastructure in question for which the exemption is granted;
(d)
in case the exemption relates to an interconnector, the result of the consultation with the regulatory authorities concerned; and
(e)
the contribution of the infrastructure to the diversification of gas supply.
9. Within a period of two months from the day following the receipt of a notification, the Commission may take a decision requiring the regulatory authority to amend or withdraw the decision to grant an exemption. That two-month period may be extended by an additional period of two months where further information is sought by the Commission. That additional period shall begin on the day following the receipt of the complete information. The initial two-month period may also be extended with the consent of both the Commission and the regulatory authority.
Where the requested information is not provided within the period set out in the request, the notification shall be deemed to be withdrawn unless, before the expiry of that period, either the period has been extended with the consent of both the Commission and the regulatory authority, or the regulatory authority, in a duly reasoned statement, has informed the Commission that it considers the notification to be complete.
The regulatory authority shall comply with the Commission decision to amend or withdraw the exemption decision within a period of one month and shall inform the Commission accordingly.
The Commission shall preserve the confidentiality of commercially sensitive information.
The Commission’s approval of an exemption decision shall lose its effect two years from its adoption in the event that construction of the infrastructure has not yet started, and five years from its adoption in the event that the infrastructure has not become operational unless the Commission decides that any delay is due to major obstacles beyond control of the person to whom the exemption has been granted.
10. The Commission may adopt Guidelines for the application of the conditions laid down in paragraph 1 of this Article and to set out the procedure to be followed for the application of paragraphs 3, 6, 8 and 9 of this Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 51(3).
Article 37
Market opening and reciprocity
1. Member States shall ensure that the eligible customers comprise:
(a)
until 1 July 2004, eligible customers as specified in Article 18 of Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning common rules for the internal market in natural gas (21). Member States shall publish, by 31 January each year, the criteria for the definition of those eligible customers;
(b)
from 1 July 2004, all non-household customers;
(c)
from 1 July 2007, all customers.
2. To avoid imbalance in the opening of the gas markets:
(a)
contracts for the supply with an eligible customer in the system of another Member State shall not be prohibited if the customer is eligible in both systems involved; and
(b)
where transactions as described in point (a) are refused because the customer is eligible in only one of the two systems, the Commission may, taking into account the situation in the market and the common interest, oblige the refusing party to execute the requested supply, at the request of one of the Member States of the two systems.
Article 38
Direct lines
1. Member States shall take the necessary measures to enable:
(a)
natural gas undertakings established within their territory to supply the eligible customers through a direct line; and
(b)
any such eligible customer within their territory to be supplied through a direct line by natural gas undertakings.
2. In circumstances where an authorisation (for example, licence, permission, concession, consent or approval) is required for the construction or operation of direct lines, the Member States or any competent authority they designate shall lay down the criteria for the grant of authorisations for the construction or operation of such lines in their territory. Those criteria shall be objective, transparent and non-discriminatory.
3. Member States may issue an authorisation to construct a direct line subject either to the refusal of system access on the basis of Article 35 or to the opening of a dispute-settlement procedure under Article 41.
CHAPTER VIII
NATIONAL REGULATORY AUTHORITIES
Article 39
Designation and independence of regulatory authorities
1. Each Member State shall designate a single national regulatory authority at national level.
2. Paragraph 1 of this Article shall be without prejudice to the designation of other regulatory authorities at regional level within Member States, provided that there is one senior representative for representation and contact purposes at Community level within the Board of Regulators of the Agency in accordance with Article 14(1) of Regulation (EC) No 713/2009.
3. By way of derogation from paragraph 1 of this Article, a Member State may designate regulatory authorities for small systems on a geographically separate region whose consumption, in 2008, accounted for less than 3 % of the total consumption of the Member State of which it is part. That derogation shall be without prejudice to the appointment of one senior representative for representation and contact purposes at Community level within the Board of Regulators of the Agency in compliance with Article 14(1) of Regulation (EC) No 713/2009.
4. Member States shall guarantee the independence of the regulatory authority and shall ensure that it exercises its powers impartially and transparently. For this purpose, Member States shall ensure that, when carrying out the regulatory tasks conferred upon it by this Directive and related legislation, the regulatory authority:
(a)
is legally distinct and functionally independent from any other public or private entity;
(b)
ensures that its staff and the persons responsible for its management:
(i)
act independently from any market interest; and
(ii)
do not seek or take direct instructions from any government or other public or private entity when carrying out the regulatory tasks. That requirement is without prejudice to close cooperation, as appropriate, with other relevant national authorities or to general policy guidelines issued by the government not related to the regulatory powers and duties under Article 41.
5. In order to protect the independence of the regulatory authority, Member States shall in particular ensure that:
(a)
the regulatory authority can take autonomous decisions, independently from any political body, and has separate annual budget allocations, with autonomy in the implementation of the allocated budget, and adequate human and financial resources to carry out its duties; and
(b)
the members of the board of the regulatory authority or, in the absence of a board, the regulatory authority’s top management are appointed for a fixed term of five up to seven years, renewable once.
In regard to point (b) of the first subparagraph, Member States shall ensure an appropriate rotation scheme for the board or the top management. The members of the board or, in the absence of a board, members of the top management may be relieved from office during their term only if they no longer fulfil the conditions set out in this Article or have been guilty of misconduct under national law.
Article 40
General objectives of the regulatory authority
In carrying out the regulatory tasks specified in this Directive, the regulatory authority shall take all reasonable measures in pursuit of the following objectives within the framework of their duties and powers as laid down in Article 41, in close consultation with other relevant national authorities, including competition authorities, as appropriate, and without prejudice to their competencies:
(a)
promoting, in close cooperation with the Agency, regulatory authorities of other Member States and the Commission, a competitive, secure and environmentally sustainable internal market in natural gas within the Community, and effective market opening for all customers and suppliers in the Community, and ensuring appropriate conditions for the effective and reliable operation of gas networks, taking into account long-term objectives;
(b)
developing competitive and properly functioning regional markets within the Community in view of the achievement of the objectives referred to in point (a);
(c)
eliminating restrictions on trade in natural gas between Member States, including developing appropriate cross-border transmission capacities to meet demand and enhancing the integration of national markets which may facilitate natural gas flow across the Community;
(d)
helping to achieve, in the most cost-effective way, the development of secure, reliable and efficient non-discriminatory systems that are consumer oriented, and promoting system adequacy and, in line with general energy policy objectives, energy efficiency as well as the integration of large and small scale production of gas from renewable energy sources and distributed production in both transmission and distribution networks;
(e)
facilitating access to the network for new production capacity, in particular removing barriers that could prevent access for new market entrants and of gas from renewable energy sources;
(f)
ensuring that system operators and system users are granted appropriate incentives, in both the short and the long term, to increase efficiencies in system performance and foster market integration;
(g)
ensuring that customers benefit through the efficient functioning of their national market, promoting effective competition and helping to ensure consumer protection;
(h)
helping to achieve high standards of public service for natural gas, contributing to the protection of vulnerable customers and contributing to the compatibility of necessary data exchange processes for customer switching.
Article 41
Duties and powers of the regulatory authority
1. The regulatory authority shall have the following duties:
(a)
fixing or approving, in accordance with transparent criteria, transmission or distribution tariffs or their methodologies;
(b)
ensuring compliance of transmission and distribution system operators, and where relevant, system owners, as well as of any natural gas undertakings, with their obligations under this Directive and other relevant Community legislation, including as regards cross-border issues;
(c)
cooperating in regard to cross-border issues with the regulatory authority or authorities of the Member States concerned and with the Agency;
(d)
complying with, and implementing, any relevant legally binding decisions of the Agency and of the Commission;
(e)
reporting annually on its activity and the fulfilment of its duties to the relevant authorities of the Member States, the Agency and the Commission. Such reports shall cover the steps taken and the results obtained as regards each of the tasks listed in this Article;
(f)
ensuring that there are no cross-subsidies between transmission, distribution, storage, LNG and supply activities;
(g)
monitoring investment plans of the transmission system operators, and providing in its annual report an assessment of the investment plans of the transmission system operators as regards their consistency with the Community-wide network development plan referred to in Article 8(3)(b) of Regulation (EC) No 715/2009; such assessment may include recommendations to amend those investment plans;
(h)
monitoring compliance with and reviewing the past performance of network security and reliability rules and setting or approving standards and requirements for quality of service and supply or contributing thereto together with other competent authorities;
(i)
monitoring the level of transparency, including of wholesale prices, and ensuring compliance of natural gas undertakings with transparency obligations;
(j)
monitoring the level and effectiveness of market opening and competition at wholesale and retail levels, including on natural gas exchanges, prices for household customers including prepayment systems, switching rates, disconnection rates, charges for and the execution of maintenance services and complaints by household customers, as well as any distortion or restriction of competition, including providing any relevant information, and bringing any relevant cases to the relevant competition authorities;
(k)
monitoring the occurrence of restrictive contractual practices, including exclusivity clauses which may prevent large non-household customers from contracting simultaneously with more than one supplier or restrict their choice to do so, and, where appropriate, informing the national competition authorities of such practices;
(l)
respecting contractual freedom with regard to interruptible supply contracts as well as with regard to long-term contracts provided that they are compatible with Community law and consistent with Community policies;
(m)
monitoring the time taken by transmission and distribution system operators to make connections and repairs;
(n)
monitoring and reviewing the access conditions to storage, linepack and other ancillary services as provided for in Article 33. In the event that the access regime to storage is defined according to Article 33(3), that task shall exclude the reviewing of tariffs;
(o)
helping to ensure, together with other relevant authorities, that the consumer protection measures, including those set out in Annex I, are effective and enforced;
(p)
publishing recommendations, at least annually, in relation to compliance of supply prices with Article 3, and providing those to the competition authorities, where appropriate;
(q)
ensuring access to customer consumption data, the provision for optional use, of an easily understandable harmonised format at national level for consumption data and prompt access for all customers to such data under point (h) of Annex I;
(r)
monitoring the implementation of rules relating to the roles and responsibilities of transmission system operators, distribution system operators, suppliers and customers and other market parties pursuant to Regulation (EC) No 715/2009;
(s)
monitoring the correct application of the criteria that determine whether a storage facility falls under Article 33(3) or (4); and
(t)
monitoring the implementation of safeguards measures as referred to in Article 46;
(u)
contributing to the compatibility of data exchange processes for the most important market processes at regional level.
2. Where a Member State has so provided, the monitoring duties set out in paragraph 1 may be carried out by other authorities than the regulatory authority. In such a case, the information resulting from such monitoring shall be made available to the regulatory authority as soon as possible.
While preserving their independence, without prejudice to their own specific competencies and consistent with the principles of better regulation, the regulatory authority shall, as appropriate, consult transmission system operators and, as appropriate, closely cooperate with other relevant national authorities when carrying out the duties set out in paragraph 1.
Any approvals given by a regulatory authority or the Agency under this Directive are without prejudice to any duly justified future use of its powers by the regulatory authority under this Article or to any penalties imposed by other relevant authorities or the Commission.
3. In addition to the duties conferred upon it under paragraph 1 of this Article, when an independent system operator has been designated under Article 14, the regulatory authority shall:
(a)
monitor the transmission system owner’s and the independent system operator’s compliance with their obligations under this Article, and issue penalties for non compliance in accordance with paragraph 4(d);
(b)
monitor the relations and communications between the independent system operator and the transmission system owner so as to ensure compliance of the independent system operator with its obligations, and in particular approve contracts and act as a dispute settlement authority between the independent system operator and the transmission system owner in respect of any complaint submitted by either party pursuant to paragraph 11;
(c)
without prejudice to the procedure under Article 14(2)(c), for the first ten-year network development plan, approve the investments planning and the multi-annual network development plan presented annually by the independent system operator;
(d)
ensure that network access tariffs collected by the independent system operator include remuneration for the network owner or network owners, which provides for adequate remuneration of the network assets and of any new investments made therein, provided they are economically and efficiently incurred; and
(e)
have the powers to carry out inspections, including unannounced inspections, at the premises of transmission system owner and independent system operator.
4. Member States shall ensure that regulatory authorities are granted the powers enabling them to carry out the duties referred to in paragraph 1, 3 and 6 in an efficient and expeditious manner. For this purpose, the regulatory authority shall have at least the following powers:
(a)
to issue binding decisions on natural gas undertakings;
(b)
to carry out investigations into the functioning of the gas markets, and to decide upon and impose any necessary and proportionate measures to promote effective competition and ensure the proper functioning of the market. Where appropriate, the regulatory authority shall also have the power to cooperate with the national competition authority and the financial market regulators or the Commission in conducting an investigation relating to competition law;
(c)
to require any information from natural gas undertakings relevant for the fulfilment of its tasks, including the justification for any refusal to grant third-party access, and any information on measures necessary to reinforce the network;
(d)
to impose effective, proportionate and dissuasive penalties on natural gas undertakings not complying with their obligations under this Directive or any relevant legally binding decisions of the regulatory authority or of the Agency, or to propose to a competent court to impose such penalties. This shall include the power to impose or propose the imposition of penalties of up to 10 % of the annual turnover of the transmission system operator or of up to 10 % of the annual turnover of the vertically integrated undertaking on the transmission system operator or on the vertically integrated undertaking, as the case may be, for non compliance with their respective obligations pursuant to this Directive; and
(e)
appropriate rights of investigations and relevant powers of instructions for dispute settlement under paragraphs 11 and 12.
5. In addition to the duties and powers conferred on it under paragraphs 1 and 4 of this Article, when a transmission system operator has been designated in accordance with Chapter IV, the regulatory authority shall be granted at least the following duties and powers:
(a)
to issue penalties in accordance with paragraph 4(d) for discriminatory behaviour in favour of the vertically integrated undertaking;
(b)
to monitor communications between the transmission system operator and the vertically integrated undertaking so as to ensure compliance of the transmission system operator with its obligations;
(c)
to act as dispute settlement authority between the vertically integrated undertaking and the transmission system operator in respect of any complaint submitted pursuant to paragraph 11;
(d)
to monitor commercial and financial relations including loans between the vertically integrated undertaking and the transmission system operator;
(e)
to approve all commercial and financial agreements between the vertically integrated undertaking and the transmission system operator, on the condition that they comply with market conditions;
(f)
to request justification from the vertically integrated undertaking when notified by the compliance officer in accordance with Article 21(4). Such justification shall in particular include evidence to the end that no discriminatory behaviour to the advantage of the vertically integrated undertaking has occurred;
(g)
to carry out inspections, including unannounced inspections, on the premises of the vertically integrated undertaking and the transmission system operator; and
(h)
to assign all or specific tasks of the transmission system operator to an independent system operator appointed in accordance with Article 14 in case of a persistent breach by the transmission system operator of its obligations under this Directive, in particular in case of repeated discriminatory behaviour to the benefit of the vertically integrated undertaking.
6. The regulatory authorities shall be responsible for fixing or approving sufficiently in advance of their entry into force at least the methodologies used to calculate or establish the terms and conditions for:
(a)
connection and access to national networks, including transmission and distribution tariffs, and terms, conditions and tariffs for access to LNG facilities. Those tariffs or methodologies shall allow the necessary investments in the networks and LNG facilities to be carried out in a manner allowing those investments to ensure the viability of the networks and LNG facilities;
(b)
the provision of balancing services which shall be performed in the most economic manner and provide appropriate incentives for network users to balance their input and off-takes. The balancing services shall be provided in a fair and non-discriminatory manner and be based on objective criteria; and
(c)
access to cross-border infrastructures, including the procedures for the allocation of capacity and congestion management.
7. The methodologies or the terms and conditions referred to in paragraph 6 shall be published.
8. In fixing or approving the tariffs or methodologies and the balancing services, the regulatory authorities shall ensure that transmission and distribution system operators are granted appropriate incentive, over both the short and long term, to increase efficiencies, foster market integration and security of supply and support the related research activities.
9. The regulatory authorities shall monitor congestion management of national gas transmission networks including interconnectors, and the implementation of congestion management rules. To that end, transmission system operators or market operators shall submit their congestion management rules, including capacity allocation, to the national regulatory authorities. National regulatory authorities may request amendments to those rules.
10. Regulatory authorities shall have the authority to require transmission, storage, LNG and distribution system operators, if necessary, to modify the terms and conditions, including tariffs and methodologies referred to in this Article, to ensure that they are proportionate and applied in a non-discriminatory manner. In the event that the access regime to storage is defined according to Article 33(3), that task shall exclude the modification of tariffs. In the event of delay in the fixing of transmission and distribution tariffs, regulatory authorities shall have the power to fix or approve provisional transmission and distribution tariffs or methodologies and to decide on the appropriate compensatory measures if the final tariffs or methodologies deviate from those provisional tariffs or methodologies.
11. Any party having a complaint against a transmission, storage, LNG or distribution system operator in relation to that operator’s obligations under this Directive may refer the complaint to the regulatory authority which, acting as dispute settlement authority, shall issue a decision within a period of two months after receipt of the complaint. That period may be extended by two months where additional information is sought by the regulatory authorities. That extended period may be further extended with the agreement of the complainant. The regulatory authority’s decision shall have binding effect unless and until overruled on appeal.
12. Any party who is affected and who has a right to complain concerning a decision on methodologies taken pursuant to this Article or, where the regulatory authority has a duty to consult, concerning the proposed tariffs or methodologies, may, at the latest within two months, or a shorter time period as provided by Member States, following publication of the decision or proposal for a decision, submit a complaint for review. Such a complaint shall not have suspensive effect.
13. Member States shall create appropriate and efficient mechanisms for regulation, control and transparency so as to avoid any abuse of a dominant position, in particular to the detriment of consumers, and any predatory behaviour. Those mechanisms shall take account of the provisions of the Treaty, and in particular Article 82 thereof.
14. Member States shall ensure that the appropriate measures are taken, including administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where confidentiality rules imposed by this Directive have not been respected.
15. Complaints referred to in paragraphs 11 and 12 shall be without prejudice to the exercise of rights of appeal under Community or national law.
16. Decisions taken by regulatory authorities shall be fully reasoned and justified to allow for judicial review. The decisions shall be available to the public while preserving the confidentiality of commercially sensitive information.
17. Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of a regulatory authority has a right of appeal to a body independent of the parties involved and of any government.
Article 42
Regulatory regime for cross-border issues
1. Regulatory authorities shall closely consult and cooperate with each other, and shall provide each other and the Agency with any information necessary for the fulfilment of their tasks under this Directive. In respect of the information exchanged, the receiving authority shall ensure the same level of confidentiality as that required of the originating authority.
2. Regulatory authorities shall cooperate at least at a regional level to:
(a)
foster the creation of operational arrangements in order to enable an optimal management of the network, promote joint gas exchanges and the allocation of cross-border capacity, and to enable an adequate level of interconnection capacity, including through new interconnections, within the region and between regions to allow for development of effective competition and improvement of security of supply without discriminating between supply undertakings in different Member States;
(b)
coordinate the development of all network codes for the relevant transmission system operators and other market actors; and
(c)
coordinate the development of the rules governing the management of congestion.
3. National regulatory authorities shall have the right to enter into cooperative arrangements with each other to foster regulatory cooperation.
4. The actions referred to in paragraph 2 shall be carried out, as appropriate, in close consultation with other relevant national authorities and without prejudice to their specific competencies.
5. The Commission may adopt Guidelines on the extent of the duties of the regulatory authorities to cooperate with each other and with the Agency. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 51(3).
Article 43
Compliance with the Guidelines
1. Any regulatory authority and the Commission may request the opinion of the Agency on the compliance of a decision taken by a regulatory authority with the Guidelines referred to in this Directive or in Regulation (EC) No 715/2009.
2. The Agency shall provide its opinion to the regulatory authority which has requested it or to the Commission, respectively, and to the regulatory authority which has taken the decision in question within three months from the date of receipt of the request.
3. Where the regulatory authority which has taken the decision does not comply with the Agency’s opinion within four months from the date of receipt of that opinion, the Agency shall inform the Commission accordingly.
4. Any regulatory authority may inform the Commission where it considers that a decision relevant for cross border-trade taken by another regulatory authority does not comply with the Guidelines referred to in this Directive or in Regulation (EC) No 715/2009 within two months from the date of that decision.
5. Where the Commission, within two months of having been informed by the Agency in accordance with paragraph 3, or by a regulatory authority in accordance with paragraph 4, or on its own initiative, within three months from the date of the decision, finds that the decision of a regulatory authority raises serious doubts as to its compatibility with the Guidelines referred to in this Directive or in Regulation (EC) No 715/2009, the Commission may decide to examine the case further. In such a case, it shall invite the regulatory authority and the parties to the proceedings before the regulatory authority to submit observations.
6. Where the Commission takes a decision to examine the case further, it shall, within four months of the date of such decision, issue a final decision:
(a)
not to raise objections against the decision of the regulatory authority; or
(b)
to require the regulatory authority concerned to withdraw its decision on the basis that the Guidelines have not been complied with.
7. Where the Commission has not taken a decision to examine the case further or a final decision within the time-limits set in paragraphs 5 and 6 respectively, it shall be deemed not to have raised objections to the decision of the regulatory authority.
8. The regulatory authority shall comply with the Commission decision to withdraw its decision within a period of two months and shall inform the Commission accordingly.
9. The Commission may adopt Guidelines setting out the details of the procedure to be followed by the regulatory authorities, the Agency and the Commission as regards the compliance of decisions taken by regulatory authorities with the Guidelines referred to in this Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 51(3).
Article 44
Record keeping
1. Member States shall require supply undertakings to keep at the disposal of the national authorities, including the regulatory authority, the national competition authorities and the Commission, for the fulfilment of their tasks, for at least five years, the relevant data relating to all transactions in gas supply contracts and gas derivatives with wholesale customers and transmission system operators as well as storage and LNG operators.
2. The data shall include details on the characteristics of the relevant transactions such as duration, delivery and settlement rules, the quantity, the dates and times of execution and the transaction prices and means of identifying the wholesale customer concerned, as well as specified details of all unsettled gas supply contracts and gas derivatives.
3. The regulatory authority may decide to make available to market participants elements of this information provided that commercially sensitive information on individual market players or individual transactions is not released. This paragraph shall not apply to information about financial instruments which fall within the scope of Directive 2004/39/EC.
4. To ensure the uniform application of this Article, the Commission may adopt Guidelines which define the methods and arrangements for record keeping as well as the form and content of the data that shall be kept. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 51(3).
5. With respect to transactions in gas derivatives of supply undertakings with wholesale customers and transmission system operators as well as storage and LNG operators, this Article shall apply only once the Commission has adopted the Guidelines referred to in paragraph 4.
6. The provisions of this Article shall not create additional obligations towards the authorities referred to in paragraph 1 for entities falling within the scope of Directive 2004/39/EC.
7. In the event that the authorities referred to in paragraph 1 need access to data kept by entities falling within the scope of Directive 2004/39/EC, the authorities responsible under that Directive shall provide them with the required data.
CHAPTER IX
RETAIL MARKETS
Article 45
Retail markets
In order to facilitate the emergence of well functioning and transparent retail markets in the Community, Member States shall ensure that the roles and responsibilities of transmission system operators, distribution system operators, supply undertakings and customers and if necessary other market parties are defined with respect to contractual arrangements, commitment to customers, data exchange and settlement rules, data ownership and metering responsibility.
Those rules shall be made public, be designed with the aim to facilitate customers’ and suppliers’ access to networks and they shall be subject to review by the regulatory authorities or other relevant national authorities.
CHAPTER X
FINAL PROVISIONS
Article 46
Safeguard measures
1. In the event of a sudden crisis in the energy market or where the physical safety or security of persons, apparatus or installations or system integrity is threatened, a Member State may temporarily take the necessary safeguard measures.
2. Such measures shall cause the least possible disturbance to the functioning of the internal market and shall be no wider in scope than is strictly necessary to remedy the sudden difficulties which have arisen.
3. The Member State concerned shall, without delay, notify those measures to the other Member States, and to the Commission, which may decide that the Member State concerned must amend or abolish such measures, insofar as they distort competition and adversely affect trade in a manner which is at variance with the common interest.
Article 47
Level playing field
1. Measures that the Member States may take pursuant to this Directive in order to ensure a level playing field shall be compatible with the Treaty, notably Article 30 thereof, and with the legislation of the Community.
2. The measures referred to in paragraph 1 shall be proportionate, non-discriminatory and transparent. Those measures may be put into effect only following the notification to and approval by the Commission.
3. The Commission shall act on the notification referred to in paragraph 2 within two months of the receipt of the notification. That period shall begin on the day following receipt of the complete information. In the event that the Commission has not acted within that two-month period, it shall be deemed not to have raised objections to the notified measures.
Article 48
Derogations in relation to take-or-pay commitments
1. If a natural gas undertaking encounters, or considers it would encounter, serious economic and financial difficulties because of its take-or-pay commitments accepted in one or more gas-purchase contracts, it may send an application for a temporary derogation from Article 32 to the Member State concerned or the designated competent authority. Applications shall, in accordance with the choice of Member States, be presented on a case-by-case basis either before or after refusal of access to the system. Member States may also give the natural gas undertaking the choice of presenting an application either before or after refusal of access to the system. Where a natural gas undertaking has refused access, the application shall be presented without delay. The applications shall be accompanied by all relevant information on the nature and extent of the problem and on the efforts undertaken by the natural gas undertaking to solve the problem.
If alternative solutions are not reasonably available, and taking into account paragraph 3, the Member State or the designated competent authority may decide to grant a derogation.
2. The Member State, or the designated competent authority, shall notify the Commission without delay of its decision to grant a derogation, together with all the relevant information with respect to the derogation. That information may be submitted to the Commission in an aggregated form, enabling the Commission to reach a well-founded decision. Within eight weeks of receipt of that notification, the Commission may request that the Member State or the designated competent authority concerned amend or withdraw the decision to grant a derogation.
If the Member State or the designated competent authority concerned does not comply with that request within a period of four weeks, a final decision shall be taken expeditiously in accordance with the advisory procedure referred to in Article 51(2).
The Commission shall preserve the confidentiality of commercially sensitive information.
3. When deciding on the derogations referred to in paragraph 1, the Member State, or the designated competent authority, and the Commission shall take into account, in particular, the following criteria:
(a)
the objective of achieving a competitive gas market;
(b)
the need to fulfil public-service obligations and to ensure security of supply;
(c)
the position of the natural gas undertaking in the gas market and the actual state of competition in that market;
(d)
the seriousness of the economic and financial difficulties encountered by natural gas undertakings and transmission undertakings or eligible customers;
(e)
the dates of signature and terms of the contract or contracts in question, including the extent to which they allow for market changes;
(f)
the efforts made to find a solution to the problem;
(g)
the extent to which, when accepting the take-or-pay commitments in question, the undertaking could reasonably have foreseen, having regard to the provisions of this Directive, that serious difficulties were likely to arise;
(h)
the level of connection of the system with other systems and the degree of interoperability of those systems; and
(i)
the effects the granting of a derogation would have on the correct application of this Directive as regards the smooth functioning of the internal market in natural gas.
A decision on a request for a derogation concerning take-or-pay contracts concluded before 4 August 2003 should not lead to a situation in which it is impossible to find economically viable alternative outlets. Serious difficulties shall in any case be deemed not to exist when the sales of natural gas do not fall below the level of minimum offtake guarantees contained in gas-purchase take-or-pay contracts or in so far as the relevant gas-purchase take-or-pay contract can be adapted or the natural gas undertaking is able to find alternative outlets.
4. Natural gas undertakings which have not been granted a derogation as referred to in paragraph 1 of this Article shall not refuse, or shall no longer refuse, access to the system because of take-or-pay commitments accepted in a gas purchase contract. Member States shall ensure that the relevant provisions of Articles 32 to 44 are complied with.
5. Any derogation granted under the above provisions shall be duly substantiated. The Commission shall publish the decision in the Official Journal of the European Union.
6. The Commission shall, within 4 August 2008, submit a review report on the experience gained from the application of this Article, so as to allow the European Parliament and the Council to consider, in due course, the need to adjust it.
Article 49
Emergent and isolated markets
1. Member States not directly connected to the interconnected system of any other Member State and having only one main external supplier may derogate from Articles 4, 9, 37 and/or 38. A supply undertaking having a market share of more than 75 % shall be considered to be a main supplier. Any such derogation shall automatically expire where at least one of the conditions referred to in this subparagraph no longer applies. Any such derogation shall be notified to the Commission.
Cyprus may derogate from Articles 4, 9, 37 and/or 38. Such derogation shall expire from the moment when Cyprus is not qualifying as an isolated market.
Articles 4, 9, 37 and/or 38 shall not apply to Estonia, Latvia and/or Finland until any of those Member States is directly connected to the interconnected system of any Member State other than Estonia, Latvia, Lithuania and Finland. This subparagraph is without prejudice to derogations under the first subparagraph of this paragraph.
2. A Member State, qualifying as an emergent market, which, because of the implementation of this Directive, would experience substantial problems may derogate from Articles 4 and 9, Article 13(1) and (3), Articles 14 and 24, Article 25(5), Articles 26, 31 and 32, Article 37(1) and/or Article 38. Such derogation shall automatically expire from the moment when the Member State no longer qualifies as an emergent market. Any such derogation shall be notified to the Commission.
Cyprus may derogate from Articles 4 and 9, Article 13(1) and (3), Articles 14 and 24, Article 25(5), Articles 26, 31 and 32, Article 37(1) and/or Article 38. Such derogation shall expire from the moment when Cyprus is not qualifying as an emergent market.
3. On the date at which the derogation referred to in the first subparagraph of paragraph 2 expires, the definition of eligible customers shall result in an opening of the market equal to at least 33 % of the total annual gas consumption of the national gas market. Two years thereafter, Article 37(1)(b) shall apply, and three years thereafter, Article 37(1)(c) shall apply. Until Article 37(1)(b) applies the Member State referred to in paragraph 2 of this Article may decide not to apply Article 32 as far as ancillary services and temporary storage for the re-gasification process and its subsequent delivery to the transmission system are concerned.
4. Where the implementation of this Directive would cause substantial problems in a geographically limited area of a Member State, in particular concerning the development of the transmission and major distribution infrastructure, and with a view to encouraging investments, the Member State may apply to the Commission for a temporary derogation from Articles 4 and 9, Article 13(1) and (3), Articles 14 and 24, Article 25(5), Articles 26, 31 and 32, Article 37(1) and/or Article 38 for developments within that area.
5. The Commission may grant the derogation referred to in paragraph 4, taking into account, in particular, the following criteria:
-
the need for infrastructure investments, which would not be economic to operate in a competitive market environment,
-
the level and pay-back prospects of investments required,
-
the size and maturity of the gas system in the area concerned,
-
the prospects for the gas market concerned,
-
the geographical size and characteristics of the area or region concerned, and socioeconomic and demographic factors,
For gas infrastructure other than distribution infrastructure, a derogation may be granted only if no gas infrastructure has been established in the area or if gas infrastructure has been established for less than 10 years. The temporary derogation shall not exceed 10 years from the time gas is first supplied in the area.
For distribution infrastructure a derogation may be granted for a period not exceeding 20 years from when gas is first supplied through the said infrastructure in the area.
6. Article 9 shall not apply to Cyprus, Luxembourg and/or Malta.
7. The Commission shall inform the Member States of applications made under paragraph 4 prior to taking a decision pursuant to paragraph 5, taking into account respect for confidentiality. That decision, as well as the derogations referred to in paragraphs 1 and 2, shall be published in the Official Journal of the European Union.
8. Greece may derogate from Articles 4, 24, 25, 26, 32, 37 and/or 38 of this Directive for the geographical areas and time periods specified in the licences issued by it, prior to 15 March 2002 and in accordance with Directive 98/30/EC, for the development and exclusive exploitation of distribution networks in certain geographical areas.
Article 50
Review procedure
In the event that in the report referred to in Article 52(6), the Commission reaches the conclusion that, given the effective manner in which network access has been carried out in a Member State - which gives rise to fully effective, non-discriminatory and unhindered network access - certain obligations imposed by this Directive on undertakings (including those with respect to legal unbundling for distribution system operators) are not proportionate to the objective pursued, the Member State in question may submit a request to the Commission for exemption from the requirement in question.
Such request shall be notified, without delay, by the Member State to the Commission, together with all the relevant information necessary to demonstrate that the conclusion reached in the report on effective network access being ensured will be maintained.
Within three months of its receipt of a notification, the Commission shall adopt an opinion with respect to the request by the Member State concerned, and where appropriate, submit proposals to the European Parliament and to the Council to amend the relevant provisions of this Directive. The Commission may propose, in the proposals to amend this Directive, to exempt the Member State concerned from specific requirements subject to that Member State implementing equally effective measures as appropriate.
Article 51
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, having regard to the provisions of Article 8 thereof.
3. Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
Article 52
Reporting
1. The Commission shall monitor and review the application of this Directive and submit an overall progress report to the European Parliament and the Council for the first time by 31 December 2004, and thereafter on an annual basis. The progress report shall cover at least:
(a)
the experience gained and progress made in creating a complete and fully operational internal market in natural gas and the obstacles that remain in this respect including aspects of market dominance, concentration in the market, predatory or anti-competitive behaviour;
(b)
the derogations granted under this Directive, including implementation of the derogation provided for in Article 26(4) with a view to a possible revision of the threshold;
(c)
the extent to which the unbundling and tarification requirements contained in this Directive have been successful in ensuring fair and non-discriminatory access to the Community’s gas system and equivalent levels of competition, as well as the economic, environmental and social consequences of the opening of the gas market for customers;
(d)
an examination of issues relating to system capacity levels and security of supply of natural gas in the Community, and in particular the existing and projected balance between demand and supply, taking into account the physical capacity for exchanges between areas and the development of storage (including the question of the proportionality of market regulation in that field);
(e)
special attention will be given to the measures taken in Member States to cover peak demand and to deal with shortfalls of one or more suppliers;
(f)
a general assessment of the progress achieved with regard to bilateral relations with third countries which produce and export or transport natural gas, including progress in market integration, trade and access to the networks of such third countries;
(g)
the need for possible harmonisation requirements which are not linked to the provisions of this Directive.
Where appropriate, the progress report may include recommendations and measures to counteract the negative effects of market dominance and market concentration.
In the report, the Commission, in consultation with the ENTSO for Gas, may also consider the feasibility of the creation, by transmission system operators, of a single European transmission system operator.
2. Every two years, the progress report referred to in paragraph 1 shall also include an analysis of the different measures taken in Member States to meet public service obligations, together with an examination of the effectiveness of those measures, and, in particular, their effects on competition in the gas market. Where appropriate, the report may include recommendations as to the measures to be taken at national level to achieve high public service standards or measures intended to prevent market foreclosure.
3. The Commission shall, by 3 March 2013, submit, as part of the general review, to the European Parliament and the Council, a detailed specific report outlining the extent to which the unbundling requirements under Chapter IV have been successful in ensuring full and effective independence of transmission system operators, using effective and efficient unbundling as a benchmark.
4. For the purpose of its assessment under paragraph 3, the Commission shall take into account, in particular, the following criteria: fair and non-discriminatory network access, effective regulation, the development of the network to meet market needs, undistorted incentives to invest, the development of interconnection infrastructure, effective competition in the energy markets of the Community and the security of supply situation in the Community.
5. Where appropriate, and in particular in the event that the detailed specific report referred to in paragraph 3 determines that the conditions referred to in paragraph 4 have not been guaranteed in practice, the Commission shall submit proposals to the European Parliament and the Council to ensure fully effective independence of transmission system operators by 3 March 2014.
6. The Commission shall, no later than 1 January 2006, forward to the European Parliament and Council, a detailed report outlining progress in creating the internal market in natural gas. That report shall, in particular, consider:
-
existence of non-discriminatory network access,
-
effective regulation,
-
the development of interconnection infrastructure, the conditions of transit, and the security of supply situation in the Community,
-
the extent to which the full benefits of the opening of the market are accruing to small enterprises and household customers, notably with respect to public service standards,
-
the extent to which markets are in practice open to effective competition, including aspects of market dominance, market concentration and predatory or anti-competitive behaviour,
-
the extent to which customers are actually switching suppliers and renegotiating tariffs,
-
price developments, including supply prices, in relation to the degree of the opening of markets,
-
whether effective and non-discriminatory third-party access to gas storage exists when technically and/or economically necessary for providing efficient access to the system,
-
the experience gained in the application of this Directive as far as the effective independence of system operators in vertically integrated undertakings is concerned and whether other measures in addition to functional independence and separation of accounts have been developed which have effects equivalent to legal unbundling.
Where appropriate, the Commission shall submit proposals to the European Parliament and the Council, in particular to guarantee high public service standards.
Where appropriate, the Commission shall submit proposals to the European Parliament and the Council, in particular to ensure full and effective independence of distribution system operators before 1 July 2007. Where necessary, those proposals shall, in conformity with competition law, also concern measures to address issues of market dominance, market concentration and predatory or anti-competitive behaviour.
Article 53
Repeal
Directive 2003/55/EC is repealed from 3 March 2011 without prejudice to the obligations of Member States concerning the deadlines for transposition and application of the said Directive. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.
Article 54
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 3 March 2011. They shall forthwith inform the Commission thereof.
They shall apply those measures from 3 March 2011 with the exception of Article 11, which they shall apply from 3 March 2013.
Where Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 55
Entry into force
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
Article 56
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 13 July 2009. | [
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COMMISSION REGULATION (EEC) No 395/90
of 15 February 1990
amending Regulation (EEC) No 3389/73 laying down the procedure and conditions for the sale of tobacco held by intervention agencies
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 727/70 of 21 April 1970 on the common organization of the market in raw tobacco (1), as last amended by Regulation (EEC) No 203/90 (2), and in particular Article 7 (4) thereof,
Whereas Commission Regulation (EEC) No 3389/73 (3), as last amended by Regulation (EEC) No 3263/85 (4), lays down the procedure and conditions for the sale of tobacco held by intervention agencies;
Whereas one aspect of the procedure, set out in Article 3 (1) of Regulation (EEC) No 3389/73, involves the publication of the invitation to tender in the Official Journal of the European Communities at least 45 days before the closing date for the submission of tenders;
Whereas, with a view to speeding up the disposal of quantities of tobacco in intervention storage, where the same lots of tobacco are put up for sale as in a previous invitation to tender, the time limit of at least 45 days should not apply; whereas Article 3 of Regulation (EEC) No 3389/73 should accordingly be amended;
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
The following paragraph is hereby inserted in Article 3 of Regulation (EEC) No 3389/73:
'1a. However, the time limit referred to in the first paragraph shall not apply if the invitation to tender relates to lots which have already been the subject of a previous invitation to tender.'
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 February 1990. | [
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COMMISSION REGULATION (EEC) N° 4131/87
of 9 December 1987
determining the conditions of entry of port, Madeira, sherry, Setubal muscatel and Tokay (Aszu and Szamorodni) wines falling within subheadings 2204 21 41, 2204 21 51,
2204 29 41, 2204 29 45, 2204 29 51 and 2204 29 55 of the combined nomenclature
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) N° 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (1), and in particular Article 11 thereof,
Whereas Council Regulation (EEC) N° 950/68 of 28 June 1968 on the Common Customs Tariff (2), as last amended by Regulation (EEC) N° 3529/87 (3), established the Common Customs Tariff on the basis of the nomenclature of the Convention of 15 December 1950 concerning the nomenclature to be used for the classification of goods in customs tariffs;
Whereas on the basis of Council Regulation (EEC) N° 97/69 of 16 January 1969 on measures to be taken for the
uniform application of the nomenclature of the Common Customs Tariff (4), as last amended by Regulation (EEC) N° 2055/84 (5), Commission Regulation (EEC) N° 1120/75 (6), as last amended by Regulation (EEC) N° 3391/83 (7), determined the conditions for the entry of port, Madeira, sherry, Setubal muscatel and Tokay (Aszu and Szamorodni) wines falling within subheadings 22.05 C III
a) 1, 22.05 C III b) 1, 22.05 C III b) 2, and 22.05 C IV a) 1
and b) 1 and 2 of the Common Customs Tariff;
Whereas Regulation (EEC) N° 2658/87 has repealed and replaced, on the one hand, Regulation (EEC) N° 950/68 in adopting the new tariff and statistical nomenclature (combined nomenclature) based on the International Convention on the Harmonized Commodity Description and Coding System and, on the other hand, Regulation (EEC) N° 97/69; whereas it is consequently appropriate, for reasons of clarity, to replace Regulation (EEC) N° 1120/75 by a new regulation taking over the new nomenclature as well as the new legal base; whereas, for the same reasons, it is appropriate to incorporate in this new text all the amendments made to date;
Whereas Regulation (EEC) N° 2658/87 covers
- port, Madeira, sherry and Setubal muscatel wines falling within subheadings 2204 21 41 and 2204 21 51, and
- Tokay (Aszu and Szamorodni) wine falling within subheadings 2204 29 45 and 2204 29 55;
- port, Madeira, sherry and Setubal Muscatel wines falling within subheadings 2204 29 41 and 2204 29 51
of the combined nomenclature;
Whereas entry under these subheadings is subject to conditions laid down in the relevant Community provisions; whereas, in order to ensure uniform application of the combined nomenclature, provisions specifying those conditions must be laid down;
Whereas identification of the above wines presents certain difficulties; whereas it can be considerably simplified if the exporting country gives an assurance that the product exported corresponds to the description of the product in question; whereas, consequently, entry of a product under the subheadings mentioned above should be authorized only where such product is accompanied by a certificate of designation of origin which is issued by an authority acting under the responsibility of the exporting country and which provides such assurance;
Whereas it is appropriate to specify the form which such certificates must take and the conditions for their use; whereas, furthermore, measures must be introduced to enable the Community to keep check upon the conditions of issue of the said certificates and to prevent falsification; whereas accordingly certain obligations should be imposed on the issuing authority;
Whereas the certificate of authenticity should be drawn up in one of the official Community languages and, where appropriate, an official language of the exporting country;
Whereas the measures provided for in this Regulation are
in accordance with the opinion of the Nomenclature Committee,
HAS ADOPTED THIS REGULATION:
Article 1
The admission under combined nomenclature subheading 2204 21 41, 2204 21 51, 2204 29 41, 2204 29 45,
2204 29 51 and 2204 29 55 of port, Madeira, sherry, Setubal muscatel and Tokay (Aszu and Szamorodni) wines shall be subject to presentation of a certificate of designation of origin meeting the requirements specified in this Regulation.
Article 2
1. The certificate shall be in one of the forms set out in Annexes I to V to this Regulation, as indicated in the following table:
TABLE
The certificate shall be printed and drawn up in one of the official languages of the European Economic Community and, where appropriate, in an official language of the exporting country.
The competent authority of the Member State in which the products are presented may require a translation of the certificate.
2. The paper used shall be white, free of mechanical pulp, dressed for writing purposes and weigh not less than 55 g/m$ and not more than 65 g/m$. The front of the certificate shall have a printed guilloche pattern background in pink, such as to reveal any falsification by mechanical or chemical means.
3. The size of the certificate shall be 210 × 297 mm. The borders of the certificate may bear decorative designs on their outer edge in a band not exceeding 13 mm in width.
4. Each certificate shall bear an individual serial number given by the issuing authority.
Article 3
The certificate shall be completed either in typescript or in manuscript. In the latter case, it must be completed in ink and in block letters.
Article 4
The certificate shall be submitted to the customs authorities
of the importing Member State within three months of its date of issue, together with the goods to which it relates.
Article 5
1. A certificate shall be valid only if it is duly authenticated by an authority appearing on the list in
Annex VI.
2. A duly authenticated certificate is one which shows
the place and date of issue and bears the stamp of the issuing authority and the signature of the person or persons authorized to sign it.
Article 6
1. An issuing authority may appear on the list only if:
(a) it is recognized as such by the exporting country;
(b) it undertakes to verify the particulars shown in certificates;
(c) it undertakes to provide the Commission and Member States, on request, with all appropriate information to enable an assessment to be made of the particulars shown in the certificates.
2. The list shall be revised when the condition specified in paragraph 1 (a) is no longer satisfied or when an issuing authority fails to fulfil one or more of the obligations incumbent upon it.
Article 7
Invoices produced in support of import declarations shall bear the serial number of the corresponding certificate.
Article 8
The countries listed in Annex VI shall send the Commission specimens of the stamps used by their issuing authorities. The Commission shall forward this information to the customs authorities of the Member States.
Article 9
Regulation (EEC) N° 1120/75 is hereby repealed.
Article 10
This Regulation shall enter into force on 1 January 1988.
However, until 31 December 1988, the wines specified in Article 1 shall be admitted under the subheadings listed in that Article on presentation alternatively of a certificate of the kind used before 31 December 1987.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 9 December 1987. | [
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Commission Regulation (EC) No 1575/2003
of 5 September 2003
amending representative prices and additional duties for the import of certain products in the sugar sector
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(1), as amended by Commission Regulation (EC) No 680/2002(2),
Having regard to Commission Regulation (EC) No 1423/95 of 23 June 1995 laying down detailed implementing rules for the import of products in the sugar sector other than molasses(3), as last amended by Regulation (EC) No 624/98(4), and in particular the second subparagraph of Article 1(2), and Article 3(1) thereof,
Whereas:
(1) The amounts of the representative prices and additional duties applicable to the import of white sugar, raw sugar and certain syrups are fixed by Commission Regulation (EC) No 1166/2003(5), as last amended by Regulation (EC) No 1558/2003(6).
(2) It follows from applying the general and detailed fixing rules contained in Regulation (EC) No 1423/95 to the information known to the Commission that the representative prices and additional duties at present in force should be altered to the amounts set out in the Annex hereto,
HAS ADOPTED THIS REGULATION:
Article 1
The representative prices and additional duties on imports of the products referred to in Article 1 of Regulation (EC) No 1423/95 shall be as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 6 September 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 September 2003. | [
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COMMISSION REGULATION (EC) No 1824/98 of 21 August 1998 on the sale by tender of beef held by certain intervention agencies and intended for processing within the Community
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organisation of the market in beef and veal (1), as last amended by Regulation (EC) No 1633/98 (2), and in particular Article 7(3) thereof,
Whereas the application of intervention measures in respect of beef has created stocks in several Member States; whereas, in order to prevent an excessive prolongation of storage, part of these stocks should be sold by tender for processing in the Community;
Whereas the sale should be made subject to the rules laid down by Commission Regulations (EEC) No 2173/79 (3), as last amended by Regulation (EC) No 2417/95 (4), (EEC) No 3002/92 (5), as last amended by Regulation (EC) No 770/96 (6) and (EEC) No 2182/77 (7), as last amended by Regulation (EC) No 2417/95, subject to certain special exceptions on account of the particular use to which the products in question are to be put;
Whereas, with a view to ensuring a regular and uniform tendering procedure, measures should be taken in addition to those laid down in Article 8(1) of Regulation (EEC) No 2173/79;
Whereas provision should be made for derogations from Article 8(2)(b) of Regulation (EEC) No 2173/79, in view of the administrative difficulties which application of this point creates in the Member States concerned;
Whereas in order to ensure optimum monitoring of the destination of beef from intervention stocks, control measures should be taken, in addition to the measures provided for in Regulation (EEC) No 3002/92, which are based on physical inspection of quantities and qualities;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. The sale shall take place of intervention products of:
- approximately 100 tonnes of bone-in hindquarters held by the Spanish intervention agency.
The products put up for sale have been bought into intervention in accordance with Article 1(c) of Commission Regulations (EC) No 1788/96 (8), (EC) No 1960/96 (9), (EC) No 2045/96 (10), (EC) No 2195/96 (11), (EC) No 2301/96 (12) and (EC) No 2378/96 (13).
Detailed information concerning quantities is given in Annex I.
2. Subject to the provisions of this Regulation the products referred to in paragraph 1 shall be sold in accordance with Regulations (EEC) No 2173/79, in particular Titles II and III thereof, (EEC) No 2182/77 and (EEC) No 3002/92.
Article 2
1. Notwithstanding Articles 6 and 7 of Regulation (EEC) No 2173/79, the provisions of and Annexes to this Regulation shall serve as a general notice of invitation to tender.
The intervention agencies concerned shall draw up a notice of invitation to tender which shall include the following:
(a) the quantities of beef offered for sale; and
(b) the deadline and place for submitting tenders.
2. Interested parties may obtain the details of the quantities available and the places where the products are stored from the addresses listed in Annex II to this Regulation. The intervention agencies shall, in addition, display the notice referred to in paragraph 1 at their head offices and may publish it in other ways.
3. For each product mentioned in Annex I the intervention agencies concerned shall sell first the meat which has been stored the longest.
4. Only tenders which reach the intervention agencies concerned by 12 noon on 7 September 1998 shall be considered.
5. Notwithstanding Article 8(1) of Regulation (EEC) No 2173/79, a tender must be submitted to the intervention agency concerned in a closed envelope, bearing the reference to the Regulation concerned. The closed envelope must not be opened by the intervention agency before the expiry of the tender deadline referred to in paragraph 4.
6. Notwithstanding Article 8(2)(b) of Regulation (EEC) No 2173/79, tenders shall not indicate in which cold store or stores the products are held.
Article 3
1. Member States shall provide the Commission with information concerning the tenders received not later than the working day following the deadline set for the submission of tenders.
2. After the tenders received have been examined a minimum selling price shall be set for each product or the sale will not proceed.
Article 4
1. A tender shall be valid only if presented by or on behalf of a natural or legal person who, for the 12 months prior to the entry into force of this Regulation, has been engaged in the processing of products containing beef and who is entered in a national VAT register. In addition, tenders must be presented by or on behalf of a processing establishment approved in accordance with Article 8 of Council Directive 77/99/EEC (14).
2. Notwithstanding Article 3(1) and (2) of Regulation (EEC) No 2182/77, a tender must be accompanied by:
- a written undertaking by the tenderer to process the meat into the products specified in Article 5 within the period referred to in Article 5(1) of Regulation (EEC) No 2182/77,
- precise details of the establishment or establishments where the meat which has been purchased is to be processed.
3. The tenderers referred to in paragraph 1 may instruct an agent in writing to take delivery, on their behalf, of the products which they purchase. In this case the agent shall submit the bids of the tenderers whom he represents together with the written instruction referred to above.
4. Notwithstanding Article 18(1) of Regulation (EEC) No 2173/79 the time limit for taking over meat sold pursuant to this Regulation shall be two months from the day of the notification referred to in Article 11 of the same Regulation.
5. The purchasers and agents referred to in the preceding paragraphs shall maintain and keep up to date an accounting system which permits the destination and use of the products to be ascertained with a view in particular to ensuring that the quantities of products purchased and manufactured tally.
Article 5
1. Meat purchased in accordance with this Regulation shall be processed into products which comply with the definitions for A products and B products set out in paragraphs 2 and 3.
2. An 'A` product means a processed product falling within CN code 1602 10, 1602 50 31, 1602 50 39 or 1602 50 80, not containing meat other than that of animals of the bovine species, with a collagen/protein ratio of no more than 0,45 % (15) and containing by weight at least 20 % (16) of lean meat excluding offal (17) and fat with meat and jelly accounting for at least 85 % of the total net weight.
The product must be subjected to a heat treatment sufficient to ensure the coagulation of meat proteins in the whole of the product which may not show any traces of a pinkish liquid on the cut surface when the product is cut along a line passing through its thickest part.
3. A 'B` product means a processed product containing beef, other than:
- one specified in Article 1(1)(a) of Regulation (EEC) No 805/68, or
- one referred to in paragraph 2.
However, a processed product falling within CN code 0210 20 90 which has been dried or smoked so that the colour and consistency of the fresh meat has totally disappeared and with a water/protein ratio not exceeding 3,2 shall be considered to be a B product.
Article 6
1. Member States shall set up a system of physical and documentary supervision to ensure that all meat is processed in accordance with Article 5.
The system must include physical checks of quantity and quality at the start of the processing, during the processing and after the processing operation is completed. To this end, processors shall at any time be able to demonstrate the identity and use of the meat through appropriate production records.
Technical verification of the production method by the competent authority may, to the extent necessary, make allowance for drip losses and trimmings.
In order to verify the quality of the finished product and establish its conformity with the processor's recipe Member States shall undertake representative sampling and analysis of the product. The costs of such operations shall be borne by the processor concerned.
2. Member States may, at the request of the processor, authorise the boning of hindquarters in an establishment other than that provided for in respect of processing provided the relevant operations take place in the same Member State under appropriate supervision.
3. Article 1 of Regulation (EEC) No 2182/77 shall not apply.
Article 7
1. The security provided for in Article 15(1) of Regulation (EEC) No 2173/79 shall be ECU 12 per 100 kilograms.
2. The security provided for in Article 4(1) of Regulation (EEC) No 2182/77 shall be:
- the difference in ecus between the tender price per tonne and ECU 2 700.
3. Notwithstanding Article 5(3) of Regulation (EEC) No 2182/77, the processing of all beef purchased into finished products as referred to in Article 5 shall constitute a principal requirement.
Article 8
Notwithstanding Article 9 of Regulation (EEC) No 2182/77, in addition to the entries provided for in Regulation (EEC) No 3002/92:
- Section 104 of T 5 control copies must be completed with one or more of the following:
- Para transformación [Reglamentos (CEE) n° 2182/77 y (CE) n° 1824/98]
- Til forarbejdning (forordning (EØF) nr. 2182/77 og (EF) nr. 1824/98)
- Zur Verarbeitung bestimmt (Verordnungen (EWG) Nr. 2182/77 und (EG) Nr. 1824/98)
- Ãéá ìåôáðïßçóç [êáíïíéóìïß (ÅÏÊ) áñéè. 2182/77 êáé (ÅÊ) áñéè. 1824/98]
- For processing (Regulations (EEC) No 2182/77 and (EC) No 1824/98)
- Destinés à la transformation [règlements (CEE) n° 2182/77 et (CE) n° 1824/98]
- Destinate alla trasformazione [Regolamenti (CEE) n. 2182/77 e (CE) n. 1824/98]
- Bestemd om te worden verwerkt (Verordeningen (EEG) nr. 2182/77 en (EG) nr. 1824/98)
- Para transformação [Regulamentos (CEE) nº 2182/77 e (CE) nº 1824/98]
- Jalostettavaksi (Asetukset (ETY) N:o 2182/77 ja (EY) N:o 1824/98)
- För bearbetning (Förordningarna (EEG) nr 2182/77 och (EG) nr 1824/98),
- Section 106 of T 5 control copies must be completed with the date of conclusion of the contract of sale.
Article 9
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 August 1998. | [
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*****
COMMISSION DECISION
OF 2 DECEMBER 1988
RELATING TO A PROCEEDING UNDER ARTICLE 85 OF THE EEC TREATY ( IV/223, TRANSOCEAN MARINE PAINT ASSOCIATION )
( ONLY THE ENGLISH AND DUTCH VERSIONS OF THIS TEXT ARE AUTHENTIC )
( 88/635/EEC )
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC 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 4, 6 AND 8 THEREOF,
HAVING REGARD TO DECISION 67/454/EEC ( 2 ) WHEREBY THE COMMISSION GAVE AN EXEMPTION PURSUANT TO ARTICLE 85 ( 3 ) OF THE TREATY TO THE TRANSOCEAN MARINE PAINT ASSOCIATION, VALID UNTIL 31 DECEMBER 1972,
HAVING REGARD TO COMMISSION DECISION 74/16/EEC ( 3 ), AS AMENDED BY DECISION 75/649/EEC ( 4 ), EXTENDING THE EXEMPTION UNTIL 31 DECEMBER 1978,
HAVING REGARD TO COMMISSION DECISION 80/184/EEC ( 5 ) EXTENDING THE EXEMPTION UNTIL 31 DECEMBER 1986,
HAVING REGARD TO THE APPLICATION FOR FURTHER EXTENSION MADE ON 7 JANUARY 1988,
HAVING REGARD TO THE SUMMARY OF THE APPLICATION FOR EXTENSION ( 6 ) PUBLISHED IN ACCORDANCE WITH ARTICLE 19 ( 3 ) OF REGULATION NO 17,
AFTER CONSULTING THE ADVISORY COMMITTEE ON RESTRICTIVE PRACTICES AND DOMINANT POSITIONS,
WHEREAS :
I . THE FACTS
( 1 ) THE TRANSOCEAN MARINE PAINT ASSOCIATION ( TRANSOCEAN ) IS AN ASSOCIATION OF MEDIUM-SIZED MARINE PAINT MANUFACTURERS FOUNDED IN 1959 WITH THE OBJECT OF MANUFACTURING MARINE PAINTS OF IDENTICAL COMPOSITION AND DISTRIBUTING AND ADVERTISING THEM UNDER THE SAME TRADEMARK IN A LARGE NUMBER OF COUNTRIES SO AS TO ESTABLISH A WORLD-WIDE DISTRIBUTION AND AFTER SALES SERVICE NETWORK AND HENCE IMPROVE THE PROSPECTS FOR COMPETITION WITH OTHER, SUBSTANTIALLY LARGER, MARINE PAINT MANUFACTURERS .
( 2 ) THE FOLLOWING FIRMS ARE CURRENTLY MEMBERS OF THE ASSOCIATION ( LISTED IN CHRONOLOGICAL ORDER OF MEMBERSHIP ):
F.A.C . VAN DER LINDEN GMBH * CO ., GERMANY
PACIFIC PRODUCTS, INC ., PHILIPPINES
VENEZIANI ZONCA VERNICI SPA, ITALY
DURMUS YASAR * SONS, TURKEY
PARS-PAMCHAL CHEMICAL CO ., IRAN
COPALIN SA, GREECE
TOA PAINT CO . LTD, JAPAN
HEALING INDUSTRIES LTD, NEW ZEALAND
YCEE MARINE SUPPLIES LTD, HONG KONG
COLORIN SA, ARGENTINA
INDUSTRIA DE PINTURAS ADOLFO STIERLING LTDA, CHILE
TECHNOQUIMICA SA, PERU
COPALIN PAINT FACTORY, EGYPT
HEALING INDUSTRIES PTY LTD, AUSTRALIA
ASIAN PAINTS ( SP ) LTD, FIJI
TECHNO-QUIMICA SA, BRAZIL
EPIGLASS ( S ) PTE LTD, SINGAPORE
TRANSOCEAN IBERICA SA, SPAIN
VAPOCURE TAIWAN LTD, TAIWAN
FABRICA DE TINTAS MARILINA SA, PORTUGAL
KOSSAN CHEMICAL INDUSTRIES, MALAYSIA
NATIONAL PAINTS FACTORIES CO ., UNITED ARAB EMIRATES
NEO-SHINE VARNISHES, INDIA
( 3 ) A NUMBER OF COMPANIES HAVE LEFT TRANSOCEAN . IN PARTICULAR, THE ASSOCIATION NOW HAS NO MEMBER IN THE UNITED STATES OF AMERICA OR IN THE UNITED KINGDOM . THE TOTAL SALES OF THE MEMBERS AND AFFILIATES OF TRANSOCEAN HAVE DECREASED FROM 15 MILLION LITRES IN 1978 TO 8 MILLION LITRES IN 1986 . TOTAL SALES OF THE MEMBERS AND AFFILIATES REPRESENT SOME (. . .) ( 1 ) OF THE WORLD MARKET .
INDIVIDUAL MEMBERS' MARKET SHARES WITHIN THE COMMUNITY RANGE FROM A NEGLIGIBLE PERCENTAGE IN SOME COUNTRIES TO (. . .) IN OTHERS . THE COMBINED MARKET SHARE OF THE ASSOCIATION THROUGHOUT THE COMMUNITY IS CURRENTLY LESS THAN (. . .). THE STRUCTURE OF THE MARKET HAS NOT CHANGED RADICALLY SINCE THE LAST DECISION RENEWING THE EXEMPTION IN 1979 . THE MEMBERS OF THE ASSOCIATION THAT REMAIN HAVE MORE OR LESS THE SAME MARKET SHARE AS IN 1979 . THE COMPETITIVE STRUCTURE OF INDUSTRY HAS REMAINED SIMILAR WITH THE EFFECTS OF STAGNATION STILL BEING FELT THROUGHOUT THE INDUSTRY .
( 4 ) TRANSOCEAN'S MAIN COMPETITORS ARE INTERNATIONAL MARINE COATINGS, HEMPEL, JOTUN, SIGMA COATINGS, CHOGOKA AND BERGER PAINTS . THESE COMPETITORS ARE MORE IMPORTANT THAN TRANSOCEAN BOTH IN AGGREGATE TERMS AND ON INDIVIDUAL MARKETS .
( 5 ) THE PRESENT REQUEST FOR THE EXTENSION OF THE EXEMPTION FIRST GRANTED BY DECISION 67/454/EEC PERTAINS TO THE ARTICLES OF ASSOCIATION AND THREE SUPPLEMENTARY AGREEMENTS AS AMENDED IN 1987 . THE GENERAL SCHEME OF THE ASSOCIATION REMAINS AS DESCRIBED IN THE ABOVEMENTIONED DECISION .
( 6 ) THE MODIFICATIONS OF THE ARTICLES OF ASSOCIATION AND OF THE THREE SUPPLEMENTARY AGREEMENTS SEEK MAINLY TO IMPROVE THE PROTECTION OF THE TRADE MARKS AND THE KNOW-HOW OF TRANSOCEAN . UNDER THE NEW ARTICLES OF ASSOCIATION TRADE MARKS SHALL BE REGISTERED BY THE CENTRAL ADMINISTRATIVE OFFICE OF THE ASSOCIATION AND EACH MEMBER AND AFFILIATE WILL BE GRANTED A LICENCE ACCORDING TO A STANDARD FORM ( ARTICLE 9 ( 1 )). THE TRADE MARKS SHALL BE THE PROPERTY OF THE ASSOCIATION ( ARTICLE 9 ( 3 )). PROSECUTION OF INFRINGEMENTS OF THE TRADE MARKS IS THE RESPONSIBILITY OF EACH MEMBER OR AFFILIATE IN THE COUNTRY ALLOCATED TO HIM ( ARTICLE 9 ( 4 )). THE NATURE OF THE TERRITORIAL EXCLUSIVITY CONFERRED UPON EACH MEMBER OR AFFILIATE IS NOW EXPRESSLY DEFINED TO PROHIBIT ACTIVE SALES CANVASSING OUTSIDE ALLOCATED TERRITORIES ( ARTICLE 5 ( 1 )). PASSIVE SALES ARE NOT PROHIBITED .
THE OLD ARTICLES OF ASSOCIATION PROVIDED FOR THE PAYMENT OF A COMMISSION WHEN A MEMBER SUPPLIED SERVICES FOR ANOTHER MEMBER . THIS COMMISSION HAS NOW BEEN ELIMINATED .
( 7 ) OTHER CHANGES TO THE ARTICLES OF ASSOCIATION HAVED BEEN MADE BUT ARE PURELY OF A STYLISTIC NATURE . THE FORMER ARTICLES OF ASSOCIATION AND BY-LAWS HAVE BEEN INCORPORATED INTO A SINGLE DOCUMENT IN ORDER TO OBVIATE REPETITION .
APART FROM THE CHANGES OUTLINED, THE SUBSTANCE OF THE ARTICLES OF ASSOCIATION REMAINS UNCHANGED .
( 8 ) THREE SUPPLEMENTARY AGREEMENTS ARE ALSO NOTIFIED . THESE ARE THE MEMBERSHIP AGREEMENT, THE AFFILIATION AGREEMENT AND THE LICENCE AGREEMENT . THESE AGREEMENTS ARE ALL NEW AND DEFINE THE RELATIONSHIP BETWEEN TRANSOCEAN AND ITS MEMBERS AND AFFILIATES AND BETWEEN THE MEMBERS AND AFFILIATES INTER SE .
( 9 ) THE MEMBERSHIP AGREEMENT DEFINES THE RIGHTS AND OBLIGATIONS OF EACH MEMBER IN RELATION TO TRANSOCEAN . THE TERMS OF THE AGREEMENT CORRESPOND TO THE TERMS OF THE ARTICLES OF ASSOCIATION . THE MEMBER IS GRANTED THE RIGHT TO MANUFACTURE THE PRODUCTS, TO USE THE KNOW-HOW AND THE TRADE MARKS BUT ONLY IN RELATION TO THE PRODUCTS AS DEFINED ( ARTICLE 2 ). ACTIVE SALES CANVASSING OUTSIDE EACH MEMBER'S TERRITORY IS FORBIDDEN ( ARTICLE 3 ) WITH EACH MEMBER BEING GIVEN TERRITORIAL EXCLUSIVITY . IF A MEMBER MAKES IMPROVEMENTS TO THE PRODUCTS HE MUST INFORM TRANSOCEAN AND IF SUCH IMPROVEMENTS CANNOT BE USED INDEPENDENTLY OF THE
KNOW-HOW OR PATENTS TRANSOCEAN SHALL MAKE THE INFORMATION AVAILABLE TO ALL THE MEMBERS AND AFFILIATES FREE OF CHARGE ( ARTICLE 5 ). IF THE IMPROVEMENT CAN BE USED INDEPENDENTLY, THEN THE MEMBER MUST OFFER IT TO TRANSOCEAN AND ITS MEMBERS ON A LICENCE BASIS AT AN AGREED ROYALTY FOR A REASONABLE PERIOD ( ARTICLE 5 ). EACH MEMBER UNDERTAKES TO KEEP ALL KNOW-HOW SECRET, EVEN AFTER THE EXPIRY OF THE TERM OF THE AGREEMENT ( ARTICLE 6 ). TRANSOCEAN IS PRIMARILY RESPONSIBLE FOR THE REGISTRATION OF TRADE MARKS AND EACH MEMBER SHALL REGISTER AS A USER IN HIS RESPECTIVE TERRITORY ( ARTICLE 7 ). EACH MEMBER SHALL TAKE STEPS TO PREVENT INFRINGEMENT OF KNOW-HOW AND TRADE MARKS AND SHALL PROCEED AGAINST THE INFRINGER IN HIS TERRITORY AT HIS OWN COST . SHOULD HE FAIL TO DO SO TRANSOCEAN SHALL PROCEED AGAINST THE INFRINGER AT THE COST OF THE MEMBER ( ARTICLE 8 ). THE TRANSFER, ASSIGNMENT OR DISPOSAL OF THE RIGHTS OF THE MEMBER IS FORBIDDEN EXCEPT IN THE EVENT OF CONCLUDING THE STANDARD LICENCE AGREEMENT WITH AN AFFILIATE AS DESCRIBED BELOW . IN ANY EVENT, THE RIGHT TO ENTER INTO THE LICENCE AGREEMENT IS SUBJECT TO APPROVAL BY TRANSOCEAN ( ARTICLE 9 ). A NEW MEMBER IS REQUIRED TO PAY AN ADMISSION FEE TO COVER COSTS INCURRED BY TRANSOCEAN IN THE PREPARATION OF HIS
MEMBERSHIP ( ARTICLE 10 ). AN ANNUAL CONTRIBUTION IS TO BE PAID BY EACH MEMBER ( ARTICLE 11 ). EACH MEMBER SHALL PAY TO TRANSOCEAN A SINGLE NON-RECURRING ROYALTY AS REIMBURSEMENT FOR EXPENSES INCURRED IN RELATION TO THE ACQUISITION AND MAINTENANCE OF THE KNOW-HOW ( ARTICLE 12 ). THE MEMBERSHIP AGREEMENT AUTOMATICALLY TERMINATES WHEN THE MEMBER CEASES TO BE A MEMBER OF TRANSOCEAN ( ARTICLE 13 ). UPON TERMINATION THE MEMBER SHALL CEASE TO HAVE ANY RIGHTS TO USE THE TRADE MARKS AND KNOW-HOW ( ARTICLE 14 ).
( 10 ) THE AFFILIATION AGREEMENT SETS OUT THE RIGHTS AND OBLIGATIONS OF AFFILIATES . THE STATUS OF AN AFFILIATE IS DIFFERENT FROM THAT OF A MEMBER IN THAT THE FORMER CANNOT TRANSFER, ASSIGN OR SUBLICENCE HIS RIGHTS UNDER THE ARTICLES OF ASSOCIATION ( ARTICLE 4 ) AND PAYS NO MEMBERSHIP FEE BUT AN ANNUAL CONTRIBUTION TO TRANSOCEAN ( ARTICLE 7 ). IN OTHER RESPECTS THE AFFILIATION AGREEMENT IS MATERIALLY SIMILAR TO THE MEMBERSHIP AGREEMENT REFERRED TO ABOVE . A FURTHER DIFFERENCE IN THE STATUS OF THE AFFILIATE IS THAT HE MUST CONCLUDE A LICENCE AGREEMENT AS NOTIFIED .
( 11 ) THE LICENCE AGREEMENT IS THE AGREEMENT BETWEEN THE AFFILIATE ON THE ONE PART AND TRANSOCEAN AND THE MEMBER ON THE OTHER, BY WHICH THE KNOW-HOW AND TRADE MARKS ARE TRANSFERRED FROM THE LATTER TO THE FORMER . THE LICENCE AGREEMENT IS SIMILAR IN ALL MATERIAL RESPECTS TO THE MEMBERSHIP AGREEMENT EXCEPT THAT THE AFFILIATE SHALL PAY TO THE MEMBER CONCLUDING THE LICENCE A ROYALTY AT THE END OF EACH QUARTER ON THE NET SALES VALUE OF ALL PRODUCTS SOLD BY THE AFFILIATE ( ARTICLE 7 ).
( 12 ) THIRD PARTIES HAVE MADE NO OBJECTIONS SUBSEQUENT TO THE PUBLICATION MADE UNDER ARTICLE 19 ( 3 ) OF REGULATION NO 17 .
II . LEGAL ASSESSMENT
( 13 ) THE AGREEMENTS NOTIFIED HAVE TO CONSIDERED AS A WHOLE AND NOT SEPARATELY . THEY ARE AGREEMENTS WITHIN THE MEANING OF ARTICLE 85 ( 1 ). THEY ARE RESTRICTIVE OF COMPETITION WITHIN THE MEANING OF THAT ARTICLE IN THAT THEY ARE AGREEMENTS BETWEEN ACTUAL OR POTENTIAL COMPETITORS . THEY OBLIGE THE MEMBERS OF THE ASSOCIATION TO CONCENTRATE THEIR EFFORTS IN THE FIELD OF PRODUCTION AND DISTRIBUTION WITHIN THE ALLOTED TERRITORY AND LIMIT THE POSSIBILITY OF EXPANDING THEIR ACTIVITIES ACTIVELY TO TERRITORIES ALLOCATED TO OTHER MEMBERS . THE MEMBERS ARE ALSO PRECLUDED FROM JOINING A SIMILAR ORGANIZATION RELATING TO MARINE PAINTS . AS THERE ARE SEVERAL MEMBERS FROM WITHIN THE COMMUNITY THE AGREEMENTS ARE LIKELY TO AFFECT TRADE BETWEEN MEMBER STATES .
( 14 ) THE EXEMPTION GIVEN BY THE COMMUNITY CAN BE EXTENDED, PURSUANT TO ARTICLE 8 ( 2 ) OF REGULATION NO 17, AS THE REQUIREMENTS OF ARTICLE 85 ( 3 ) ARE STILL SATISFIED . THE POOLING AND COORDINATION OF THE INDIVIDUAL DISTRIBUTION NETWORKS OF MEMBER FIRMS IS A SUITABLE AND INDEED NECESSARY MEANS OF ENRICHING THE RANGE OF GOODS ON OFFER, IMPROVING SALES STRUCTURES IN THE MARINE PAINT INDUSTRY AND PROMOTING INTENSIVE COMPETITION WITH THE MAJOR MARINE PAINT MANUFACTURERS . THE EXISTENCE OVER THE YEARS OF THE SALES AND SERVICE NETWORK FOR TRANSOCEAN PAINTS HAS INCREASED THE AVAILABILITY OF THE PRODUCTS, WITH A RESULTANT BENEFIT TO CONSUMERS .
( 15 ) THE RESTRICTIONS OF COMPETITION RESULTING FROM THE CURRENT VERSION OF THE TRANSOCEAN ARTICLES OF ASSOCIATION, MEMBERSHIP AGREEMENT, AFFILIATION AGREEMENT AND LICENCE AGREEMENT ARE INDISPENSABLE FOR THE ATTAINMENT OF THESE OBJECTIVES . THE TERRITORIAL PROTECTION STIPULATED IS NOT ABSOLUTE, FOR PASSIVE SALES OUTSIDE THE ALLOTTED TERRITORY ARE PERMITTED; NO COMMISSION IS PAYABLE IN THE EVENT OF A SALE OUTSIDE THE TERRITORY OF A MEMBER OR AFFILIATE . THE ADMISSION FEE, ANNUAL CONTRIBUTION AND NON-RECURRING ROYALTY PAYMENTS BY A MEMBER TO TRANSOCEAN REIMBURSE THE LATTER FOR THE EXPENSES INCURRED IN THE RUNNING OF THE ASSOCIATION AND IN THE ACQUISITION AND MAINTENANCE OF KNOW-HOW . THE STIPULATIONS ON IMPROVEMENTS ARE ALSO
INDISPENSABLE TO THE UNIFORM APPLICATION OF ADVANCES MADE IN THE FIELD OF MARINE PAINT THROUGHOUT TRANSOCEAN .
( 16 ) A SHARE OF LESS THAN (. . .) OF A MARKET IN WHICH THERE ARE LARGER AND MORE POWERFUL SUPPLIERS OF SIMILAR PRODUCTS DOES NOT GIVE THE POWER TO ELIMINATE COMPETITION IN RESPECT OF A SUBSTANTIAL PART OF THE RELEVANT GOODS .
( 17 ) EXPERIENCE OF THE APPLICATION OF COMMISSION DECISION 80/184/EEC HAS SHOWN THAT THE OBLIGATIONS IMPOSED THEREIN ARE APPROPRIATE IN ORDER TO ENABLE THE COMMISSION TO ASSESS THE EFFECTS OF COOPERATION BETWEEN TRANSOCEAN MEMBERS IN A RAPIDLY CHANGING MARKET FOR COMPATIBILITY WITH THE RULES ON COMPETITION IN THE TREATY .
( 18 ) THE DECLARATION OF EXEMPTION SHOULD ACCORDINGLY BE RENEWED FOR 11 YEARS TO 31 DECEMBER 1998 AND THE OBLIGATIONS OF DECISION 80/184/EEC SHOULD AGAIN BE ATTACHED,
HAS ADOPTED THIS DECISION :
ARTICLE 1
THE DECLARATION OF EXEMPTION IN ACCORDANCE WITH ARTICLE 85 ( 3 ) OF THE EEC TREATY, WHICH THE COMMISSION ISSUED BY DECISIONS 67/454/EEC, 74/16/EEC AND 80/184/EEC CONCERNING THE AGREEMENT OF 1 JANUARY 1959 ESTABLISHING THE TRANSOCEAN MARINE PAINT ASSOCIATION, IS HEREBY RENEWED FROM 1 JANUARY 1988 TO 31 DECEMBER 1998 IN RESPECT OF THE VERSION AMENDED MOST RECENTLY IN 1987 .
ARTICLE 2
THIS DECISION IS SUBJECT TO THE FOLLOWING OBLIGATIONS :
1 . THE COMMISSION SHALL BE INFORMED WITHOUT DELAY OF THE FOLLOWING MATTERS :
( A ) ANY AMENDMENT OR ADDITION TO THE AGREEMENTS;
( B ) ANY DECISION TAKEN BY THE BOARD OF DIRECTORS OR THE RESULT OF ANY ARBITRATION HELD, PURSUANT TO THE RESTRICTIVE PROVISIONS OF THE AGREEMENTS, AND IN PARTICULAR ARTICLES 5 AND 9 THEREOF;
( C ) ANY CHANGE IN THE COMPOSITION OF MEMBERSHIP;
( D ) ANY LINK AND ANY CHANGES IN SUCH LINKS, PRESENT OR FUTURE, CONSTITUED BY MEANS OF A FINANCIAL PARTICIPATION AMOUNTING TO 25 % OR MORE OF THE SHARE CAPITAL OR BY WAY OF COMMON DIRECTORS OR MANAGERS :
( AA ) BETWEEN MEMBERS OF THE ASSOCIATION; OR
( BB ) BETWEEN A MEMBER OF THE ASSOCIATION AND ANOTHER ENTERPRISE IN THE PAINT SECTOR, PROVIDED THAT SUCH NON-MEMBER CARRIES ON BUSINESS DIRECTLY OR INDIRECTLY WITHIN THE COMMUNITY IN THE PAINT SECTOR, THAT IS TO SAY UNDERTAKES BUSINESS IN ONE OR MORE MEMBER STATES DIRECTLY OR THROUGH A SUBSIDIARY UNDERTAKING OR BY MEANS OF A JOINT VENTURE .
2 . A REPORT SHALL BE SUBMITTED BY THE ASSOCIATION ANNUALLY TO THE COMMISSION ON THE ACTIVITIES OF THE ASSOCIATION AND IN PARTICULAR ON IMPROVEMENTS IN THE PRODUCTION AND MARKETING OF MARINE PAINT PRODUCTS ACHIEVED .
ARTICLE 3
THIS DECISION IS ADDRESSED TO THE TRANSOCEAN MARINE PAINT ASSOCIATION FOR THE ATTENTION OF THE SECRETARY-GENERAL, MR W.G . VAN AALST, MATHENESSERLAAN 300, NL-3021 HV ROTTERDAM, AND TO ITS MEMBERS AS FOLLOWS :
F.A.C . VAN DER LINDEN GMBH * CO .,
FRITZ REUTER STRASSE 32,
PO BOX 1208,
D-2153 HAMBURG-NEU WULMSTORF;
COPALIN SA,
16 SALAMINIAS STREET,
GR-11855 ATHENS;
VENEZIANI ZONCA VERNICI SPA,
VIA MALASPINA 8,
PO BOX 550,
I-34147 TRIESTE;
TRANSOCEAN IBERICA SA,
CTRA . DE BALIS, KM . 1,
( PARACUELLOS DEL JARAMA ),
PO BOX 62058,
ES-MADRID 28080;
FABRICA DE TINTAS MARILINA SA,
RUE INFANTE D . HENRIQUE 421,
PO BOX
P-4436 RIO TINTO ( PORTO );
PACIFIC PRODUCTS INC .,
6TH FL . INSULAR LIFE BUILDING,
AYALA AVENUE, MAKATI,
PO BOX 46,
METRO MANILA,
PHILIPPINES;
HEALING INDUSTRIES PTY LTD,
27 LESLIE STREET,
LAKEMBA NSW 2195,
AUSTRALIA;
ASIAN PAINTS ( SP ) LTD .,
7-9-11 RUVE PLACE,
TAVAKUBU,
PO BOX 694,
LAUTOKA,
FIJI;
YCEE MARINE SUPPLIES LTD .,
1102 WINFULL COMMERCIAL BLDG,
174 WING LOK STREET,
HONG KONG;
TOA PAINT CO . LTD,
HEAD OFFICE,
1-29, 2-CHOME, DOJIMA-HAMA,
KITA-KU,
OSAKA 530,
JAPAN;
HEALING INDUSTRIES LTD,
686 ROSEBANK ROAD, AVONDALE,
PRIVATE BAG, ROSEBANK,
AUCKLAND 7,
NEW ZEALAND;
EPIGLASS ( S ) PTE . LTD,
22, TUAS AVENUE 8,
SINGAPORE 2263,
SINGAPORE;
VAPOCURE TAIWAN LTD,
ROOM 808, 8F-6,
NO 147, CHIEN KUO ROAD, SEC . 2,
T'AIPEI,
TAIWAN;
A.P.C . INDUSTRIES CO . LTD,
2469/8-9 PETCHBURI ROAD EXT,
BANGKOK 10310,
THAILAND;
COPALIN PAINT FACTORY,
1ST E1 MADABEGH STREET,
WARDIAN,
PO BOX 348,
ALEXANDRIA,
EGYPT;
PARS-PAMCHAL CHEMICAL CO .,
MIRZAYE SHIRAZI AVE,
15TH STREET NR 12,
PO BOX 13145-1331,
TEHRAN 13,
IRAN;
DURMUS YASAR * SONS,
SANAYI CADD . NO 37,
BORNOVA PO BOX 594,
IZMIR,
TURKEY;
COLORIN SA,
JURAMENTO 5853,
1605-MUNRO-FGB,
PO BOX 11,
BUENOS AIRES,
ARGENTINA;
TECNO-QUIMICA SA,
ROD . PRESIDENTE DUTRA 2254/KM2,
RIO DE JANEIRO RJ,
BRAZIL;
INDUSTRIA DE PINTURAS ADOLFO STIERLING LTDA,
AV . LA DIVISA 0359 _ LO ESPEJO,
C . DE SAN BERNARDO,
CHILE;
TECHNOQUIMICA SA,
PISTA A LA ATARJEA 1152,
EL AGOSTINO,
PO BOX 2678,
LIMA 100,
PERU;
KOSSAN CHEMICAL INDUSTRIES,
LOT 16632,
51/4 MILE, JALAN MERU,
41050 KELANG,
MALAYSIA;
NATIONAL PAINTS FACTORIES CO .,
PO BOX 5822
SHARJAH,
UNITED ARAB EMIRATES;
NEO-SHINE VARNISHES,
VEERA LAND DEVELOPMENT CORP .,
OFF . VEERA DESAI ROAD,
ANDHERI WEST,
BOMBAY,
INDIA .
DONE AT BRUSSELS, 2 DECEMBER 1988 . | [
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Commission Regulation (EC) No 1119/2001
of 7 June 2001
applying a special intervention measure for maize and sorghum at the end of the 2000/01 marketing year
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals(1), as last amended by Regulation (EC) No 1666/2000(2), and in particular Article 6 thereof,
Whereas:
(1) The intervention period for maize and sorghum ends on 30 April in the south and 31 may in the north. In view of the uncertainty as regards outlets, this is likely to induce operators to offer substantial quantities of maize and sorghum for intervention at the end of May in the north, although certain market outlets may be found after the end of the intervention period. This situation may be remedied by allowing those cereals to be bought in until 15 August 2001.
(2) The conditions governing the buying-in of cereals are laid down in Commission Regulation (EC) No 824/2000 of 19 June 2000 fixing the procedure and conditions for the take-over of cereals by intervention agencies(3).
(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
1. In accordance with Article 6 of Regulation (EEC) No 1766/92, the intervention agencies of Member States other than Greece, Spain, Italy and Portugal shall buy in quantities of maize and sorghum offered to them from 1 July to 15 August 2001.
2. The price to be paid shall be the intervention price applicable for May 2001.
3. Buying-in shall be carried out by the intervention agency in accordance with Regulation (EC) No 824/2000.
Notwithstanding the third subparagraph of Article 4(3) of Regulation (EC) No 824/2000 the last delivery of quantities offered for intervention must take place by 31 August 2001 at the latest.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 June 2001. | [
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COMMISSION REGULATION (EC) No 98/2005
of 20 January 2005
concerning tenders notified in response to the invitation to tender for the import of sorghum issued in Regulation (EC) No 2275/2004
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 12(1) thereof,
Whereas:
(1)
An invitation to tender for the maximum reduction from third countries in the duty on sorghum imported into Spain was opened pursuant to Commission Regulation (EC) No 2275/2004 (2).
(2)
Article 7 of Commission Regulation (EC) No 1839/95 (3), allows the Commission to decide, in accordance with the procedure laid down in Article 25 of Regulation (EC) No 1784/2003 and on the basis of the tenders notified to make no award.
(3)
On the basis of the criteria laid down in Articles 6 and 7 of Regulation (EC) No 1839/95 a maximum reduction in the duty should not be fixed.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
No action shall be taken on the tenders notified from 14 to 20 January 2005 in response to the invitation to tender for the reduction in the duty on imported sorghum issued in Regulation (EC) No 2275/2004.
Article 2
This Regulation shall enter into force on 21 January 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 January 2005. | [
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COMMISSION REGULATION (EC) No 2011/96 of 21 October 1996 fixing the intervention price of olive oil for the 1996/97 marketing year at a reduced level to take account of the overrun of the maximum guaranteed quantity during the 1994/95 and 1995/96 marketing years
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation No 136/66/EEC of 22 September 1966 on the establishment of a common organization of the market in oils and fats (1), as last amended by Regulation (EC) No 1581/96 (2), and in particular Article 4a thereof,
Whereas Council Regulation (EC) No 1583/96 (3) fixes, for the 1996/97 marketing year, the intervention price for olive oil;
Whereas Article 4a of Regulation No 136/66/EEC extends the system of maximum guaranteed quantities to the intervention price for olive oil; whereas, for the 1994/95 marketing year, for which the maximum guaranteed quantity was fixed at 1 350 000 tonnes, the estimated production of olive oil was fixed at 1 408 023 tonnes, while final production for the same marketing year was established as 1 463 228 tonnes; whereas, pursuant to the second indent of the abovementioned Article 4a, the intervention price for the 1996/97 marketing year should be reduced in proportion to the difference between the extents to which the final and estimated production in the 1994/95 marketing year exceeded the abovementioned maximum guaranteed quantity;
Whereas, for the 1995/96 marketing year, for which the maximum guaranteed quantity is fixed at 1 350 000 tonnes, estimated olive oil production is fixed at 1 417 200 tonnes; whereas, pursuant to the abovementioned Article 4a, the intervention price for the 1996/97 marketing year should be reduced in proportion to the extent that estimated production for the 1995/96 marketing year exceeds the abovementioned maximum guaranteed quantity;
Whereas, however, such reductions may not exeed 3 %;
Whereas the intervention price fixed for the 1996/97 marketing year by Regulation (EC) No 1583/96 must therefore be reduced by 3 %,
HAS ADOPTED THIS REGULATION:
Article 1
The intervention price for olive oil for the 1996/97 marketing year shall be ECU 180,58/100 kg.
Article 2
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.
It shall apply from 1 November 1996.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 October 1996. | [
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Commission Regulation (EC) No 336/2002
of 22 February 2002
amending Regulation (EC) No 805/1999 laying down certain measures for implementing Council Regulation (EC) No 718/1999 on a Community-fleet capacity policy to promote inland waterway transport
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 718/1999 of 29 March 1999 on a Community-fleet capacity policy to promote inland waterway transport(1), and in particular Article 9(3) thereof,
Whereas:
(1) Article 7 of Regulation (EC) No 718/1999 requires the Commission to lay down detailed rules for implementing the Community-fleet capacity policy as defined by that Regulation.
(2) Article 4 of Commission Regulation (EC) No 805/1999(2), as last amended by Regulation (EC) No 997/2001(3), laying down certain measures for implementing Regulation (EC) No 718/1999, set ratios for the "old-for-new" rule to apply from 29 April 1999.
(3) Article 4(2) of Regulation (EC) No 718/1999 requires the "old-for-new" ratio to be constantly reduced to bring it as quickly as possible and in regular stages to zero no later than 29 April 2003.
(4) Article 1 of Commission Regulation (EC) No 1532/2000(4) amending Regulation (EC) No 805/1999 reduced the "old-for-new" ratios as from the 20th day following their publication, i.e. as from 3 August 2000. They were again reduced by Article 1 of Regulation (EC) No 997/2001, as from the 20th day following their publication, i.e. as from 18 June 2001.
(5) In view of the obligation to reduce the ratios to zero no later than 29 April 2003 and the economic trend in the various sectors of the inland waterways transport market the "old-for-new" ratios should again be reduced.
(6) It is therefore necessary to adjust the various "old-for-new" ratios mentioned in Article 4 of Regulation (EC) No 718/1999 and set by Article 4 of Regulation (EC) No 805/1999, as amended by Article 1 of Regulation (EC) No 997/2001, though without undoing the achievements of the structural improvement carried out since 1990. To take into consideration a slight general increase in demand in the inland waterway transport sector while maintaining the balance between the three sectors, and taking account of their specific features, the ratios should be halved to 0,30:1 for dry cargo carriers, 0,45:1 for tanker vessels, and 0,125:1 for pusher craft.
(7) The Group of Experts on Community Fleets Capacity and Promotion Policy set up by Article 6 of Regulation (EC) No 805/1999 has been consulted about the measures laid down in this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 805/1999 is hereby amended as follows:
1. in Article 4(1), the ratio "0,60:1" is replaced by "0,30:1";
2. in Article 4(2), the ratio "0,90:1" is replaced by "0,45:1";
3. in Article 4(3), the ratio "0,25:1" is replaced by "0,125:1".
Article 2
This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 February 2002. | [
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COUNCIL REGULATION (EC) No 1459/1999
of 24 June 1999
amending Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms
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),
Having regard to the opinion of the Economic and Social Committee(3),
Whereas:
(1) Article 47(1) of Council Regulation (EC) No 850/98 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms(4) states that at the latest one year after the date of entry into force of that Regulation, the Council is to decide, on the basis of a proposal from the Commission, on the establishment of rules for the use of mesh size combinations to be applied on the date of application of that Regulation;
(2) to ensure effective control, monitoring and enforcement of these rules for the use of mesh size combinations and of fishing voyages that cover more than one region or geographical area, mandatory use of the logbook should be extended to include fishing vessels that have hitherto been exempt from this obligation;
(3) therefore, Articles 4 and 15 of Regulation (EC) No 850/98 should be revised;
(4) Regulation (EC) No 850/98 should be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 850/98 is hereby amended as follows:
(1) Article 4 shall be replaced by the following: "Article 4
1. For each of the regions or geographical areas mentioned in Annexes I to V, and depending where applicable on the time period, the target species for each range of mesh size are as defined in the relevant Annex.
2. (a) The use, during any fishing voyage, of any combination of towed nets of more than one range of mesh size shall be prohibited,
- within the totality of Regions l and 2 except Skagerrak and Kattegat, and depending where applicable on the time period, unless the mesh sizes of such nets used are in compliance with no more than one of the permitted combinations of mesh size ranges laid down in Annex VIII, and
- within Region 3 except ICES Division IXa east of longitude 7° 23' 48" W unless the mesh sizes of such nets used are in compliance with no more than one of the permitted combinations of mesh size ranges laid down in Annex IX.
(b) Within each of the regions or geographical areas mentioned in Annexes III, IV, and V, and depending, where applicable, on the time period, the use, during any fishing voyage, of any combination of towed nets of the mesh size ranges specified in the relevant Annex shall be allowed.
(c) Masters of fishing vessels who during any fishing voyage do not complete a logbook in accordance with the provisions of Article 6 of Regulation (EEC) No 2847/93 shall not use during that voyage any combination of towed nets of more than one range of mesh size within Community fishing waters. This requirement shall not apply to fishing voyages within Community fishing waters in Regions 4, 5 and 6.
(d) Vessels may carry on board during any fishing voyage any combination of towed nets of mesh size ranges which do not comply with the conditions laid down in subparagraphs (a) or (b), provided that all such nets are lashed and stowed in accordance with the provisions of Article 20(1) of Regulation (EEC) No 2847/93. Any towed net which is not lashed and stowed in accordance with the aforementioned provisions shall be considered to be in use.
(e) Whenever more than one net is towed simultaneously by a fishing vessel or by more than one fishing vessel, each net shall be of the same mesh size range.
(f) The use of any towed net of mesh size:
- less than 16 mm shall be prohibited in Region 3 except ICES Division IXa east of longitude 7° 23' 48" W,
- less than 40 mm shall be prohibited in ICES Division IXa east of longitude 7° 23' 48" W,
- less than 20 mm shall be prohibited in Regions 4 and 5,
- less than 45 mm shall be prohibited in Region 6.
3. Masters of fishing vessels who do not complete a logbook in accordance with the provisions of Article 6 of Regulation (EEC) No 2847/93 shall not, during any fishing voyage, fish in more than one of the regions or geographical areas mentioned in Annexes I to V. This requirement shall not apply to vessels which, during any fishing voyage, use only towed nets of mesh size equal to or greater than 100 mm.
4. (a) For each fishing voyage during which any combination of towed nets of more than one range of mesh size is used, landings shall be prohibited whenever:
(i) the catches are taken in Regions 1 or 2 except for the Skagerrak and Kattegat and any one of the nets used is of mesh size equal to or greater than 100 mm , unless the percentage composition of the catches retained on board is in compliance with the relevant conditions laid down in Annex X(A); or
(ii) the catches are taken in the Skagerrak and Kattegat and any one of the nets used is of mesh size equal to or greater than 90 mm, unless the percentage composition of the catches retained on board is in compliance with the relevant conditions laid down in Annex X(B); or
(iii) the catches are taken in Region 3 except for ICES Division IXa east of 7° 23' 48" W and any one of the nets used is of mesh size equal to or greater than 70 mm, unless the percentage composition of the catches retained on board is in compliance with the relevant conditions laid down in Annex XI(A); or
(iv) the catches are taken in ICES Division IXa east of 7° 23' 48" W and any one of the nets used is of mesh size equal to or greater than 55 mm, unless the percentage composition of the catches retained on board is in compliance with the relevant conditions laid down in Annex XI(B);
(b) Otherwise, the percentage composition of catches taken by each range of mesh size used, within each of the areas mentioned in Annexes I to V, and retained on board shall be in accordance with the corresponding conditions laid down in the relevant Annex.
5. (a) The percentage of target species and of other species shall be obtained by aggregating all quantities retained on board, or transshipped, of target species and other species as set out in Annexes I to V.
(b) However, detailed rules for obtaining the percentage of target species and of other species retained on board when these have been taken by a net or nets towed simultaneously by more than one fishing vessel, shall be drawn up in accordance with the procedure laid down in Article 48.
6. Before 31 May 2001, Member States will report to the Commission on the application of the conditions laid down in this Article, Article 15 and relevant Annexes. On the basis of these reports, the Commission shall submit appropriate proposals. The Council shall decide, on the basis of any such proposal, before 31 October 2001."
(2) Article 15 shall be replaced by the following text: "Article 15
1. Quantities of marine organisms caught in excess of permitted percentages specified in Annexes I to VII, X and XI may not be landed but shall be returned to the sea prior to each landing.
2. At all times during a fishing voyage, and following sorting of the catch, the percentage of target species as defined in Annexes I to VIl retained on board shall be at least half of the minimum percentages of the target species referred to in the said Annexes.
3. Masters of fishing vessels who are required to complete a logbook shall ensure that after the first 24 hours of a fishing voyage has expired, the minimum percentage of target species as set out in Annexes I to VII, X and XI shall be met at the time of each completion of the logbook, in accordance with conditions laid out in Article 6 of Regulation (EEC) No 2847/93.
4. Whenever, during a fishing voyage, a vessel newly enters any of the regions or geographical areas mentioned in Annexes I to V, the minimum percentage of target species, as set out in Annexes I to VII, X and XI, caught and retained on board from the region or geographical area previously fished during this voyage shall be met within two hours."
(3) Annex X shall be replaced by the following:
"ANNEX X
A. CONDITIONS FOR USE OF CERTAIN COMBINATIONS OF MESH SIZE IN REGIONS 1 AND 2, EXCEPT SKAGERRAK AND KATTEGAT
1. Mesh size combination: 16 to 31 mm + > = 100 mm
The catch retained on board or landed shall consist of at least 50 % of any mixture of shrimps and common prawns (Pandalus montagui, Crangon spp. and Palaemon spp.).
2. Mesh size combination: 32 to 54 mm + > = 100 mm
The catch retained on board or landed shall consist of at least 20 % of any mixture of shrimps and prawns (Crangon spp., Pandalus spp., Palaemon spp., Parapenaeus longirostris);
or
the catch retained on board or landed shall consist of at least 50 % of any mixture of those marine organisms indicated in Annex I as the target species for mesh sizes between 32 and 54 mm, with the exception of shrimps and prawns (Crangon spp., Pandalus spp., Palaemon spp., Parapenaeus longirostris) and of no more than 15 % of any mixture of the species marked in Annex I with the symbol "y".
3. Mesh size combination: 70 to 79 mm + > = 100 mm
The catch retained on board or landed shall consist of at least 10 % of any mixture of those marine organisms indicated in Annex I as the target species for mesh sizes between 70 and 79 mm.
4. Mesh size combination: 80 to 99 mm + > = 100 mm
The catch retained on board or landed shall consist of at least 50 % of any mixture of those marine organisms indicated in Annex I as the target species for mesh sizes between 80 and 99 mm.
B. CONDITIONS FOR USE OF CERTAIN COMBINATIONS OF MESH SIZE IN SKAGERRAK AND KATTEGAT
Mesh size combination < = 89 mm + > = 90 mm
The catch retained on board or landed shall consist of at least 10 % of any mixture of those marine organisms indicated in Annex IV as the target species for mesh sizes between 70 and 89 mm."
4. Annex XI shall be replaced by the following:
"ANNEX XI
A. CONDITIONS FOR USE OF CERTAIN COMBINATIONS OF MESH SIZE IN REGION 3, EXCEPT ICES DIVISION IXa EAST OF LONGITUDE 7° 23' 48" W
1. Mesh size combination: 16 to 31 mm + > = 70 mm
The catch retained on board or landed shall consist of at least 40 % of any mixture of shrimps (Pandalus montagui, Crangon spp. and Palaemon spp.) and swimming crab;
or
The catch retained on board or landed shall consist of at least 70 % of any mixture of those marine organisms indicated in Annex II as the target species for mesh sizes between 16 and 31 mm, with the exception of shrimps (Pandalus montagui, Crangon spp. and Palaemon spp.) and swimming crab.
2. Mesh size combination: 32 to 54 mm + > = 70 mm
The catch retained on board or landed shall consist of at least 70 % of any mixture of those marine organisms indicated in Annex II as the target species for mesh sizes between 32 and 54 mm, with the exception of shrimps and prawns (Pandalus spp., Crangon spp. and Palaermon spp.).
3. Mesh size combination: 55-59 mm + > = 70 mm
The catch retained on board or landed shall consist of at least 20 % of any mixture of shrimps and prawns (Pandalus spp., Crangon spp., Palaemon spp., Aristeus antennatus, Aristaeomorpha foliacea, Parapenaeus longirostris);
or
The catch retained on board or landed shall consist of at least 60 % of any mixture of those marine organisms indicated in Annex II as the target species for mesh sizes between 55 and 59 mm , with the exception of shrimps and prawns (Pandalus spp., Crangon spp., Palaemon spp., Aristeus antennatus, Aristaeomorpha foliacea, Parapenaeus longirostris).
4. Mesh size combination: 60 to 69 mm + > = 70 mm
The catch retained on board or landed shall consist of at least 60 % of any mixture of those marine organisms indicated in Annex II as the target species for mesh sizes between 60 and 69 mm.
B. CONDITIONS FOR USE OF CERTAIN COMBINATIONS OF MESH SIZE IN ICES DIVISION IXa EAST OF LONGITUDE 7° 23' 48" W
Mesh size combination 40-54mm + > = 55 mm
The catch retained on board or landed shall consist of at least 50 % of any mixture of those marine organisms indicated in Annex III as the target species for mesh sizes between 40 and 54 mm."
Article 2
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Communities.
It shall apply from 1 January 2000.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 24 June 1999. | [
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COMMISSION REGULATION (EC) No 1186/2006
of 3 August 2006
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 4 August 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 August 2006. | [
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+++++
( 1 ) OJ NO L 303 , 28 . 11 . 1977 , P . 23 .
COMMISSION DIRECTIVE OF 5 OCTOBER 1981 ADAPTING TO TECHNICAL PROGRESS COUNCIL DIRECTIVE 77/728/EEC ON THE APPROXIMATION OF THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS OF THE MEMBER STATES RELATING TO THE CLASSIFICATION , PACKAGING AND LABELLING OF PAINTS , VARNISHES , PRINTING INKS , ADHESIVES AND SIMILAR PRODUCTS ( 81/916/EEC )
THE COMMISSION OF THE EUROPEAN COMMUNITIES ,
HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY ,
HAVING REGARD TO COUNCIL DIRECTIVE 77/728/EEC OF 7 NOVEMBER 1977 ON THE APPROXIMATION OF THE LAWS , REGULATIONS AND ADMINISTRATIVE PROVISIONS OF THE MEMBER STATES RELATING TO THE CLASSIFICATION , PACKAGING AND LABELLING OF PAINTS , VARNISHES , PRINTING INKS , ADHESIVES AND SIMILAR PRODUCTS ( 1 ) , AND IN PARTICULAR ARTICLE 11 THEREOF ,
WHEREAS ANNEX I TO DIRECTIVE 77/728/EEC CONTAINS A LIST OF DANGEROUS SUBSTANCES GIVING FOR EACH OF THESE SUBSTANCES CONCENTRATION LIMITS WHICH GOVERN THE CLASSIFICATION OF THE PREPARATIONS CONCERNED ;
WHEREAS EXAMINATION OF THE LIST OF DANGEROUS SUBSTANCES HAS SHOWN THAT THIS LIST NEEDS TO BE ADAPTED IN THE LIGHT OF THE LATEST SCIENTIFIC AND TECHNICAL KNOWLEDGE OR , MORE PRECISELY , THAT IT IS NECESSARY TO CHANGE THE CONCENTRATION LIMITS FOR SOME SUBSTANCES AND TO INCLUDE OTHER SUBSTANCES ON THE LIST ;
WHEREAS ANNEX II TO DIRECTIVE 77/728/EEC CONTAINS SPECIAL PROVISIONS CONCERNING THE LABELLING OF CERTAIN PREPARATIONS ; WHEREAS SOME RISKS HAVE NOW BEEN MORE PRECISELY SPECIFIED ; WHEREAS SOME OF THE SAFETY ADVICE PHRASES SHOULD BE MORE CLEARLY EXPRESSED ; WHEREAS , IN THE CIRCUMSTANCES , ANNEX II SHOULD BE AMENDED ;
WHEREAS THE MEASURES PROVIDED FOR IN THIS DIRECTIVE ARE IN ACCORDANCE WITH THE OPINION OF THE COMMITTEE FOR THE ADAPTATION TO TECHNICAL PROGRESS OF THE DIRECTIVES ON THE REMOVAL OF TECHNICAL BARRIERS TO TRADE IN DANGEROUS SUBSTANCES AND PREPARATIONS ,
HAS ADOPTED THIS DIRECTIVE ,
ARTICLE 1
ANNEXES I AND II TO DIRECTIVE 77/728/EEC ARE HEREBY REPLACED BY THE ANNEXES TO THIS DIRECTIVE .
ARTICLE 2
THE MEMBER STATES SHALL ADOPT AND PUBLISH BEFORE 1 JULY 1983 THE PROVISIONS NECESSARY TO COMPLY WITH THIS DIRECTIVE AND SHALL FORTHWITH INFORM THE COMMISSION THEREOF . THEY SHALL APPLY SUCH PROVISIONS WITH EFFECT FROM 1 JULY 1983 AT THE LATEST .
ARTICLE 3
THIS DIRECTIVE IS ADDRESSED TO THE MEMBER STATES .
DONE AT BRUSSELS , 5 OCTOBER 1981 . | [
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COMMISSION REGULATION (EC) No 415/2007
of 13 March 2007
concerning the technical specifications for vessel tracking and tracing systems referred to in Article 5 of Directive 2005/44/EC of the European Parliament and of the Council on harmonised river information services (RIS) on inland waterways in the Community
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Directive 2005/44/EC of the European Parliament and of the Council of 7 September 2005 on harmonised river information services (RIS) on inland waterways in the Community (1), and in particular Article 5 thereof,
Whereas:
(1)
In accordance with Article 1(2) of Directive 2005/44/EC, RIS shall be developed and implemented in a harmonised, interoperable and open way.
(2)
In accordance with Article 5 of Directive 2005/44/EC, technical specifications for vessel tracking and tracing systems shall be defined.
(3)
The technical specifications for vessel tracking and tracing systems shall be based on technical principles set out in Annex II to the Directive.
(4)
In accordance with Article 1(2) of the Directive, the technical specifications shall take due account of the work carried out by international organisations. Continuity shall be ensured with other modal traffic management services, in particular maritime vessel traffic management and information services.
(5)
They shall take further due account of the work carried out by the expert group on vessel tacking and tracing which is composed of representatives of the competent authorities for the implementation of vessel tracking and tracing systems, and official members from other governmental bodies and observers from the industry.
(6)
The technical specifications, which are the subject of this Regulation, correspond to the current state of the art. Experiences gained from the application of Directive 2005/44/EC as well as future technical progress may make it necessary to amend the technical specifications in accordance with Article 5(2) of Directive 2005/44/EC. Amendments to the technical specifications shall take due account of the work carried out by the expert group on vessel tracking and tracing.
(7)
The draft technical specifications have been examined by the Committee referred to in Article 11 of Directive 2005/44/EC.
(8)
The measures provided for in this Regulation are in accordance with the opinion of the Committee referred to in Article 11 of Directive 2005/44/EC,
HAS ADOPTED THIS REGUALTION:
Article 1
This Regulation defines the technical specifications for vessel tracking and tracing systems in inland waterway transport. The technical specifications are 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.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 March 2007. | [
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COMMISSION REGULATION (EC) No 246/2008
of 17 March 2008
amending Regulation (EC) No 1043/2005 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
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 the first subparagraph of Article 8(3) thereof,
Whereas:
(1)
The first paragraph of Article 14 of Commission Regulation (EC) No 1043/2005 (2) makes a detailed reference to the frequency of fixing the refund rates for basic products of Regulations mentioned in Article 1(1) exported in the form of non-Annex I goods.
(2)
The refunds may, in accordance with the Regulations mentioned in Article 1(1) of Regulation (EC) No 1043/2005, be granted when the internal and external market conditions justify so. Where the market situation does not justify the granting of refunds the periodical fixing may be suspended.
(3)
The second subparagraph of Article 8(3) of Regulation (EC) No 3448/93 makes reference to the same procedure for the granting of refunds on the agricultural products concerned when they are exported in unprocessed state.
(4)
For reasons of simplification and harmonisation it is appropriate to adapt Article 14 of Regulation (EC) No 1043/2005.
(5)
Regulation (EC) No 1043/2005 should therefore be amended accordingly.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee on horizontal questions concerning trade in processed agricultural products not listed in Annex I,
HAS ADOPTED THIS REGULATION:
Article 1
Article 14 of Regulation (EC) No 1043/2005 is replaced by the following:
‘Article 14
The fixing of the rate of refund, as provided for in Article 13(3) of Regulation (EC) No 1784/2003 and the corresponding provisions of the other Regulations referred to in Article 1(1) of this Regulation, shall be effected each month per 100 kg of basic products.
By way of derogation from the first paragraph:
(a)
for basic products listed in Annex I to this Regulation, the refund may be fixed according to another timetable determined in accordance with the procedure referred to in Article 16(2) of Regulation (EC) No 3448/93;
(b)
the rate of the refund on poultry eggs in shell, fresh or preserved, and eggs not in shell and egg yolks, suitable for human consumption, fresh, dried or otherwise preserved, not sweetened, shall be fixed for the same period as that for the refunds on those products exported unprocessed.’
Article 2
This Regulation shall enter into force on the seventh day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 March 2008. | [
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Commission Regulation (EC) No 55/2002
of 11 January 2002
fixing the maximum export refund on wholly milled round grain, medium grain and long grain A rice to be exported to certain third countries in connection with the invitation to tender issued in Regulation (EC) No 2009/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3072/95 of 22 December 1995 on the common organisation of the market in rice(1), as last amended by Regulation (EC) No 1987/2001(2), and in particular Article 13(3) thereof,
Whereas:
(1) An invitation to tender for the export refund on rice was issued pursuant to Commission Regulation (EC) No 2009/2001(3).
(2) Article 5 of Commission Regulation (EEC) No 584/75(4), as last amended by Regulation (EC) No 299/95(5), allows the Commission to fix, in accordance with the procedure laid down in Article 22 of Regulation (EC) No 3072/95 and on the basis of the tenders submitted, a maximum export refund. In fixing this maximum, the criteria provided for in Article 13 of Regulation (EC) No 3072/95 must be taken into account. A contract is awarded to any tenderer whose tender is equal to or less than the maximum export refund.
(3) The application of the abovementioned criteria to the current market situation for the rice in question results in the maximum export refund being fixed at the amount specified in Article 1.
(4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The maximum export refund on wholly milled grain, medium grain and long grain A rice to be exported to certain third countries pursuant to the invitation to tender issued in Regulation (EC) No 2009/2001 is hereby fixed on the basis of the tenders submitted from 4 to 10 January 2002 at 207,00 EUR/t.
Article 2
This Regulation shall enter into force on 12 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 January 2002. | [
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Commission Regulation (EC) No 1724/2002
of 27 September 2002
determining the extent to which applications lodged in September 2002 for import licences under the regime provided for by tariff quotas for certain products in the pigmeat sector for the period 1 October to 31 December 2002 can be accepted
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 1486/95 of 28 June 1995 opening and providing for the administration of tariff quotas for certain products in the pigmeat sector(1), as last amended by Regulation (EC) No 1006/2001(2), and in particular Article 5(5) thereof,
Whereas:
(1) The applications for import licences lodged for the fourth quarter of 2002 are for quantities less than the quantities available and can therefore be met in full.
(2) The surplus to be added to the quantity available for the following period should be determined,
HAS ADOPTED THIS REGULATION:
Article 1
1. Applications for import licences for the period 1 October to 31 December 2002 submitted pursuant to Regulation (EC) No 1486/95 shall be met as referred to in Annex I.
2. For the period 1 January to 31 March 2003, applications may be lodged pursuant to Regulation (EC) No 1486/95 for import licences for a total quantity as referred to in Annex II.
Article 2
This Regulation shall enter into force on 1 October 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 September 2002. | [
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COMMISSION DECISION of 21 December 1994 approving the programme for the eradication and surveillance of brucella melitensis for 1995 presented by Italy and fixing the level of the Community's financial contribution (Only the Italian text is authentic) (94/874/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to the Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field (1), as last amended by Decision 94/370/EC (2), and in particular Article 24 thereof,
Whereas Decision 90/424/EEC provides for the possibility of financial participation by the Community in the eradication and surveillance of brucella melitensis;
Whereas by letter dated 29 July 1994, Italy has submitted a programme for the eradication of brucella melitensis;
Whereas after examination of the programme it was found to comply with all Community criteria relating to the eradication of the disease in conformity with Council Decision 90/638/EEC on laying down Community criteria for the eradication and monitoring of certain animal diseases (3), as last amended by Council Directive 92/65/EEC (4);
Whereas this programme appears on the priority list of programmes for the eradication and surveillance of animal diseases which can benefit from financial participation from the Community and which was established by Commission Decision 94/769/EC (5);
Whereas in the light of the importance of the programme for the achievement of Community objectives in the field of animal health, it is appropriate to fix the financial participation of the Community at 50 % of the costs incurred by Italy up to a maximum of ECU 1 550 000;
Whereas a financial contribution from the Community shall be granted in so far as the actions provided for are carried out and provided that the authorities furnish all the necessary information within the time limits provided for;
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
The programme for the eradication of brucella melitensis presented by Italy is hereby approved for the period from 1 January to 31 December 1995.
Article 2
Italy shall bring into force by 1 January 1995 the laws, regulations and administrative provisions for implementing the programme referred to in Article 1.
Article 3
1. Financial participation by the Community shall be at the rate of 50 % of the costs incurred in Italy by way of compensation to owners for the slaughter of animals up to a maximum of ECU 1 550 000.
2. The financial contribution of the Community shall be granted subject to:
- forwarding a report to the Commission every three months on the progress of the programme and the costs incurred,
- forwarding a final report on the technical execution of the programme accompanied by justifying evidence as to the costs incurred by 1 June 1996 at the latest.
Article 4
This Decision is addressed to the Italian Republic.
Done at Brussels, 21 December 1994. | [
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COMMISSION REGULATION (EC) No 1306/94 of 6 June 1994 concerning the stopping of fishing for salmon by vessels flying the flag of a Member State
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy (1), and in particular Article 21 (3) thereof,
Whereas Council Regulation (EC) No 3689/93 of 20 December 1993 allocating, for 1994, catch quotas between Member States for vessels fishing in Lithuanian waters (2), provides for salmon quotas for 1994;
Whereas, in order to ensure compliance with the provisions relating to the quantitative limitations on catches of stocks subject to quotas, it is necessary for the Commission to fix the date by which catches made by vessels flying the flag of a Member State are deemed to have exhausted the quota allocated;
Whereas, according to the information communicated to the Commission, catches of salmon in the waters of ICES division III d (Lithuanian waters) by vessels flying the flag of a Member State or registered in a Member State have reached the quota allocated for 1994,
HAS ADOPTED THIS REGULATION:
Article 1
Catches of salmon in the waters of ICES division III d (Lithuanian waters) by vessels flying the flag of a Member State or registered in a Member State are deemed to have exhausted the quota allocated to the Community for 1994.
Fishing for salmon in the waters of ICES division III d (Lithuanian waters) by vessels flying the flag of a Member State or registered in a Member State is prohibited, as well as the retention on board, the transhipment and the landing of such stock captured by the abovementioned vessels after the date of entry into force of this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 6 June 1994. | [
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COMMISSION DECISION of 10 February 1994 amending Decision 92/588/EEC on a multiannual guidance programme for the fishing fleet of France for the period 1993 to 1996 pursuant to Council Regulation (EEC) No 4028/86 (Only the French text is authentic) (94/137/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 4028/86, of 18 December 1986 on Community measures to improve and adapt structures in the fisheries and aquaculture sector (1), last modified by Regulation (EEC) No 3946/92 (2), and in particular Articles 4 and 5 (2) thereof,
Whereas in accordance with Commission Decision 92/588/EEC (3), France has forwarded data on the situation of the fishing fleet of the Overseas Departments, whereas it is appropriate to complete the Annex to Decision 92/588/EEC with the situation and objectives for this segment of the fleet;
Whereas the measures envisaged in the present Decision are in accordance with the opinion of the Standing Committee for the Fishing Industry,
HAS ADOPTED THIS DECISION:
Article 1
The table of objectives for the multiannual guidance programmes for the French fleet for the period 1993 to 1996, shown in the Annex to the present Decision, including the footnotes, cancels and replaces that shown in the Annex to Decision 92/588/EEC.
Article 2
This Decision is addressed to the French Republic.
Done at Brussels, 10 February 1994. | [
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*****
COMMISSION REGULATION (EEC) No 3518/86
of 19 November 1986
on specific surveillance measures applicable to imports of orange juice
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 1838/86 (2), and in particular Article 18 (2) thereof,
Whereas the conditions under which orange juice is marketed are affected by competition from third countries offering prices which are substantially lower than those applied in the Community; whereas the constant fall in the prices of imported products has been accompanied by a substantial increase in the quantities imported;
Whereas, under those circumstances, the Community market is exposed to serious disturbances which might endanger the objectives set out in Article 39 of the Treaty;
Whereas measures should be taken to enable imports of orange juice from third countries to be kept under close surveillance; whereas, with a view to that objective, provision should be made for release for free circulation of the product in question to be made subject to the presentation of a licence and for licence applications to be accompanied by particulars regarding the product to be imported; whereas those particulars should be checked against the contracts between importers and suppliers;
Whereas with a view to enabling supplementary measures to be adopted by the Commission if the market situation so requires, provision should be made for a given period to elapse between applications and the actual issue of import licences;
Whereas the provisions of Commission Regulation (EEC) No 3183/80 of 3 December 1980 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (3), as last amended by Regulation (EEC) No 592/86 (4) should be applied,
HAS ADOPTED THIS REGULATION:
Article 1
All release for free circulation in the Community of orange juice falling within heading 20.07 of the Common Customs Tariff shall be subject to the presentation of an import licence issued by Member States to all applicants, wherever they are established in the Community.
Such licences shall be valid throughout the Community.
Article 2
1. Import licences shall be issued subject to the provision of a security of 2 ECU per 100 kg net. Securities shall be forfeit in full or in part if, during the term of validity of the licence, the products are not, or only in part, released for circulation.
2. The provisions of Regulation (EEC) No 3183/80 shall apply subject to the specific provisions of this Regulation.
3. Import licences shall be valid for three months from their date of issue.
Article 3
1. Application for import licences must be accompanied by:
- particulars as follows:
(i) the concentration of the product according to the Brix scale following the classification inthe Annex hereto;
(ii) the price of the product as stipulated in the contract;
(iii) the method of preservation;
(iv) the form of packaging.
Those particulars must be notified by means of a document in duplicate in accordance with the model in the Annex.
- the contract concluded between importers and suppliers.
2. The competent authorities shall indicate on the contracts the quantities in respect of which import licences are issued.
The quantities indicated shall be endorsed by the competent authority's stamp.
Article 4
1. Licence applications and import licences must indicate the country of origin of the product in Section 14. Import licences shall only be valid for products originating in the country indicated in Section 14.
2. Import licences shall be issued on the fifth working day following the day on which applications are lodged unless special measures have been taken in the interim.
Article 5
1. Member States shall notify the Commission of:
- the quantities of orange juice in respect of which applications for import licences have been lodged,
- the country of origin,
broken down in accordance with the nomenclature of the Common Customs Tariff. Such information shall be notified at the following intervals:
- each Wednesday for applications lodged on Mondays and Tuesdays,
- each Friday for applications lodged on Wednesdays and Thursdays,
- each Monday for applications lodged on the previous Friday.
If no applications for import licences have been lodged during one of the periods referred to in the first subparagraph, the Member State in question shall notify the Commission thereof by telex on the days indicated above.
2. Each Monday the Member States shall forward to the Commission the originals of the documents provided for in Article 3 (1), first indent.
Article 6
This Regulation shall enter into force on the eighth day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 November 1986. | [
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COUNCIL DECISION
of 21 June 2004
on the signing of the European Convention for the protection of animals during international transport
(2004/544/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 37, 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)
The Commission has negotiated on behalf of the Community the European Convention for the protection of animals during international transport.
(2)
Subject to its possible conclusion at a later date, the European Convention for the protection of animals during international transport, which is open for signature since 5 November 2003, should be signed,
HAS DECIDED AS FOLLOWS:
Sole Article
Subject to possible conclusion at a later date, the President of the Council is hereby authorised to designate the person(s) empowered to sign, on behalf of the European Community (1), the European Convention for the protection of animals during international transport, attached to this Decision.
Done at Luxembourg, 21 June 2004. | [
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*****
COMMISSION DECISION
of 22 November 1988
adjusting the weightings applicable from 1 October 1988 to the remuneration of officials of the European Communities serving in non-member countries
(89/68/EEC, EURATOM, ECSC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing a Single Council and a Single Commission of the European Communities,
Having regard to the Staff Regulations of Officials of the European Communities laid down by Regulation (EEC, Euratom, ECSC) No 259/68 (1), as last amended by Regulation (ECSC, EEC, Euratom) No 2339/88 (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 (ECSC, EEC, Euratom) No 3383/88 (3) laid down the weightings to be applied from 1 July 1988 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 (4) 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 October 1988 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,
HAS DECIDED AS FOLLOWS:
Sole Article
With effect from 1 October 1988 the weightings applicable to the remuneration of officials serving in non-member countries payable in the currency of their country of employment are hereby 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, 22 November 1988. | [
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COUNCIL DECISION of 23 January 1995 appointing the members of the Economic and Social Committee (95/38/EC, Euratom)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 193 to 195 thereof,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Articles 165 to 167 thereof,
Having regard to the Convention on certain institutions common to the European Communities and in particular Article 5 thereof,
Having regard to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, and in particular Articles 23 and 159 thereof as they result from the Decision of the Council of the European Union of 1 January 1995 adjusting the instruments concerning the accession of the new Member States to the European Union, and in particular Articles 14 and 33 thereof,
Having regard to the nominations submitted by the Austrian and Finnish Governments on 1 January 1995 and by the Swedish Government on 19 January 1995,
Having obtained the opinion of the Commission of the European Communities,
HAS DECIDED AS FOLLOWS:
Sole Article
The persons whose names and titles appear in the Annex are hereby appointed members of the Economic and Social Committee for the period ending 20 September 1998.
Done at Brussels, 23 January 1995. | [
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COMMISSION DECISION of 29 July 1998 amending Council Decision 96/411/EC on improving Community agricultural statistics (notified under document number C(1998) 2135) (Text with EEA relevance) (98/514/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 96/411/EC of 25 June 1996 on improving Community agricultural statistics (1), as amended by Decision 98/3/EC (2), and in particular Article 8 thereof,
Whereas preserving the quality of the rural environment is one of the objectives of rural development policy;
Whereas adequate instruments should be made available in order to provide reliable statistical information in this field;
Whereas to that end Decision 96/411/EC should be amended by the replacement of Annex II thereto;
Whereas the measures set out in this Decision are in accordance with the opinion delivered by the Standing Committee on Agricultural Statistics,
HAS ADOPTED THIS DECISION:
Article 1
Annex II of Decision 96/411/EC is replaced by the Annex to this Decision.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 29 July 1998. | [
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COUNCIL DECISION
of 4 December 2008
on the signing, on behalf of the European Community, of the Protocol on Integrated Coastal Zone Management in the Mediterranean to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean
(2009/89/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 175(1), in conjunction with the first sentence of the first paragraph of Article 300(2), thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
The Convention for the Protection of the Mediterranean Sea against Pollution, which was subsequently renamed as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (hereinafter the Barcelona Convention) was concluded on behalf of the European Community by Council Decisions 77/585/EEC (1) and 1999/802/EC (2).
(2)
In accordance with Article 4.3(e) of the Barcelona Convention, the Contracting Parties shall commit themselves to promote the integrated management of the coastal zones, taking into account the protection of areas of ecological and landscape interest and the rational use of natural resources.
(3)
The Recommendation of the European Parliament and of the Council of 30 May 2002, concerning the implementation of Integrated Coastal Zone Management in Europe (3), and in particular Chapter V thereof, encourages the implementation by the Member States of integrated coastal zone management in the context of existing conventions with neighbouring countries, including non-Member States, in the same regional sea.
(4)
The Community promotes integrated management on a larger scale by means of horizontal instruments, including in the field of environmental protection. These activities therefore contribute to integrated coastal zone management.
(5)
Integrated Coastal Zone Management is one component of the EU Integrated Maritime Policy as endorsed by the European Council held in Lisbon on 13 and 14 December 2007.
(6)
By virtue of a Council Decision of 27 November 2006, the Commission participated on behalf of the Community, in consultation with the representatives of the Member States, in the negotiations organised by the Barcelona Convention with a view to preparing a Protocol on Integrated Coastal Zone Management in the Mediterranean (hereinafter the ICZM Protocol).
(7)
As a result of those negotiations, the text of the ICZM Protocol was adopted by the Conference of Plenipotentiaries on 20 January 2008 and it will be open for signature until 20 January 2009.
(8)
The Mediterranean coastal zones continue to experience high pressures on the environment and degradation of coastal resources. The ICZM Protocol provides a framework to stimulate a more concerted and integrated approach, involving public and private stakeholders including civil society and economic operators. Such an inclusive approach is required to address these problems more effectively and achieve a more sustainable development of the Mediterranean coastal zones.
(9)
The ICZM Protocol covers a broad range of provisions which will need to be implemented by different levels of administration taking the subsidiarity and proportionality principles into account. While it is appropriate for the Community to act in support of integrated coastal zone management, bearing in mind, inter alia, the cross-border nature of most environmental problems, the Member States and their relevant competent authorities will be responsible for the design and implementation on the coastal territory of certain detailed measures laid down in the ICZM Protocol, such as the establishment of zones where construction is not allowed.
(10)
It is appropriate that the ICZM Protocol be signed, on behalf of the Community, subject to its subsequent conclusion at a later date,
HAS DECIDED AS FOLLOWS:
Article 1
The signing of the Protocol on Integrated Coastal Zone Management in the Mediterranean to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean is hereby approved on behalf of the European Community, subject to its subsequent conclusion at a later date.
The text of the ICZM Protocol is attached to this Decision (4).
Article 2
The President of the Council is hereby authorised to designate the person(s) empowered to sign the ICZM Protocol on behalf of the Community.
Done at Brussels, 4 December 2008. | [
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Commission Decision
of 15 November 2002
amending Decision 2001/783/EC as regards the protection and surveillance zones in relation to bluetongue in Italy
(notified under document number C(2002) 4415)
(Text with EEA relevance)
(2002/906/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 2000/75/EC of 20 November 2000 laying down specific provisions for the control and eradication of bluetongue(1), and in particular Article 8(3) thereof,
Whereas:
(1) In the light of the evolution of the bluetongue situation in four Member States in 2001, Commission Decision 2001/783/EC of 9 November 2001 on protection and surveillance zones in relation to bluetongue and on rules applicable to movements of animals in and from those zones(2), as last amended by Decision 2002/543/EC(3), was adopted.
(2) It is clear from the results of the epidemiological survey carried out by the Italian authorities that bluetongue virus has spread to new regions or reappeared in regions formerly infected. Italy has requested the inclusion of those regions in Annex I of Decision 2001/783/EC.
(3) Decision 2001/783/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 the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
Annex I to Decision 2001/783/EC is replaced by the text in the Annex to this Decision.
Article 2
The Member States shall amend the measures they apply to trade so as to bring them into compliance with this Decision and they shall give immediate appropriate publicity to the measures adopted. They shall immediately inform the Commission thereof.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 15 November 2002. | [
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Commission Regulation (EC) No 862/2003
of 19 May 2003
on the supply of cereals as food aid
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1292/96 of 27 June 1996 on food-aid policy and food-aid management and special operations in support of food security(1), as modified by Regulation (EC) No 1726/2001 of the European Parliament and of the Council(2), and in particular Article 24(1)(b) thereof,
Whereas:
(1) The abovementioned Regulation lays down the list of countries and organisations eligible for Community aid and specifies the general criteria on the transport of food aid beyond the fob stage.
(2) Following the taking of a number of decisions on the allocation of food aid, the Commission has allocated white sugar to certain beneficiaries.
(3) It is necessary to make these supplies in accordance with the rules laid down by Commission Regulation (EC) No 2519/97 of 16 December 1997 laying down general rules for the mobilisation of products to be supplied under Council Regulation (EC) No 1292/96 as Community food aid(3). It is necessary to specify the time limits and conditions of supply to determine the resultant costs,
HAS ADOPTED THIS REGULATION:
Article 1
Cereals shall be mobilised in the Community, as Community food aid for supply to the recipient listed in the Annex, in accordance with Regulation (EC) No 2519/97 and under the conditions set out in the Annex.
The tenderer is deemed to have noted and accepted all the general and specific conditions applicable. Any other condition or reservation included in his tender is deemed unwritten.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 May 2003. | [
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