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COMMISSION DECISION
of 6 March 2006
establishing the classes of reaction-to-fire performance for certain construction products as regards wood flooring and solid wood panelling and cladding
(notified under document number C(2006) 655)
(Text with EEA relevance)
(2006/213/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Directive 89/106/EEC of 21 December 1988, on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (1), and in particular Article 20(2) thereof,
Whereas:
(1)
Directive 89/106/EEC envisages that in order to take account of different levels of protection for construction works at national, regional or local level, it may be necessary to establish in the interpretative documents classes corresponding to the performance of products in respect of each essential requirement. Those documents have been published as the ‘Communication of the Commission with regard to the interpretative documents of Directive 89/106/EEC’ (2).
(2)
With respect to the essential requirement of safety in the event of fire, interpretative document No 2 lists a number of interrelated measures which together define the fire safety strategy to be variously developed in the Member States.
(3)
Interpretative document No 2 identifies one of those measures as the limitation of the generation and spread of fire and smoke within a given area by limiting the potential of construction products to contribute to the full development of a fire.
(4)
The level of that limitation may be expressed only in terms of the different levels of reaction-to-fire performance of the products in their end-use application;
(5)
By way of harmonised solution, a system of classes was adopted in Commission Decision 2000/147/EC of 8 February 2000 implementing Council Directive 89/106/EEC as regards the classification of the reaction-to-fire performance of construction products (3).
(6)
In the case of wood flooring and solid wood panelling and cladding it is necessary to use the classification established in Decision 2000/147/EC.
(7)
The reaction-to-fire performance of many construction products and/or materials, within the classification provided for in Decision 2000/147/EC, is well established and sufficiently well known to fire regulators in Member States that they do not require testing for this particular performance characteristic.
(8)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Construction,
HAS ADOPTED THIS DECISION:
Article 1
The construction products and/or materials which satisfy all the requirements of the performance characteristic ‘reaction to fire’ without need for further testing are set out in the Annex.
Article 2
The specific classes to be applied to different construction products and/or materials, within the reaction-to-fire classification adopted in Decision 2000/147/EC, are set out in the Annex to this Decision.
Article 3
Products shall be considered in relation to their end-use application, where relevant.
Article 4
This Decision is addressed to the Member States.
Done at Brussels, 6 March 2006. | [
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Commission Regulation (EC) No 1330/2003
of 25 July 2003
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1947/2002(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 26 July 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
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Council Regulation (EC) No 1786/2003
of 29 September 2003
on the common organisation of the market in dried fodder
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 36 and the third subparagraph of Article 37(2) thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament(1),
Having regard to the opinion of the European Economic and Social Committee(2),
Having regard to the Opinion of the Committee of the Regions(3),
Whereas:
(1) Council Regulation (EC) No 603/95 of 21 February 1995 of the common organisation of the market in dried fodder(4) establishes a common organisation of that market with aid granted at two flat rates, one for dehydrated fodder and one for sun-dried fodder.
(2) Regulation (EC) No 603/95 has been substantially amended several times. As a consequence of further amendments it should be repealed and replaced in the interests of clarity.
(3) The main part of fodder production under the scheme established by Regulation (EC) No 603/95 relies on the use of fossil fuel for dehydrating and, in some Member States, on the use of irrigation. Due to concerns about its effects on the environment, the scheme should be amended.
(4) Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing support schemes for farmers(5).
(5) Following these elements, the two aid rates set by Regulation (EC) No 603/95 should be reduced to a single rate applicable to both dehydrated and sun-dried fodder.
(6) Since production in southern countries begins in April, the marketing year for dried fodder on which aid is granted should be from 1 April to 31 March.
(7) To guarantee budget neutrality for dried fodder there should be a ceiling for the volume of Community production. To that end a maximum guaranteed quantity should be set covering both dehydrated and sun-dried fodder.
(8) That quantity should be divided among the Member States on the basis of the historical quantities recognised for the purposes of Regulation (EC) No 603/95.
(9) To secure respect for the guaranteed maximum quantity and discourage excess production throughout the Community, the aid should be reduced if that quantity is exceeded. That reduction should be applied in each Member State which has exceeded its guaranteed national quantity, in proportion to the excess recorded for it.
(10) The aid amount finally due cannot be paid until it is known whether the guaranteed maximum quantity has been exceeded. An advance on the aid should therefore be paid once the dried fodder has left the processor.
(11) Minimum quality requirements for entitlement to the aid should be set.
(12) To encourage a steady flow of green fodder to processors, eligibility for the aid should in certain cases require conclusion of a contract between producers and processing undertakings.
(13) To promote transparency of the production chain and facilitate essential checking, certain particulars in contracts should be made compulsory.
(14) To receive the aid, processors should therefore be required to keep stock records providing necessary information for checking entitlement and to furnish any other supporting document needed.
(15) Where there is no contract between the producers and the processing undertakings, the latter should have to provide other information allowing entitlement to be checked.
(16) It should be ensured that, where a contract is a special-order one for processing of fodder delivered by the grower, the aid is passed back to him.
(17) The proper working of a single market in dried fodder would be jeopardised by the granting of national aid. Therefore, the provisions of the Treaty governing State aid should apply to the products covered by this common market organisation.
(18) In view of simplification, the committee assisting the Commission should be the Management Committee for Cereals.
(19) The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission(6).
(20) The internal market and the custom duties could, in exceptional circumstances, prove inadequate, In such cases, so as not to leave the Community market without defence against disturbances that might ensue, the Community should be able to take all necessary measures without delay. All such measures should be in conformity with the Community's international obligations.
(21) In order to take account of possible evolution of the dried fodder production, the Commission should, on the basis of an evaluation of the common market organisation for dried fodder, present a report to the Council on the sector dealing in particular with the development of areas of leguminous and other green fodder, the production of dried fodder and the savings of fossil fuels achieved. The report should be accompanied, if needed, by appropriate proposals.
(22) Expenditure incurred by the Member States as a result of the obligations arising from the application of this Regulation should be financed by the Community in accordance with Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy(7).
(23) Due to the application of the single payment scheme from 1 January 2005, this scheme should apply from 1 April 2005,
HAS ADOPTED THIS REGULATION:
CHAPTER I
INTRODUCTORY PROVISIONS
Article 1
The common organisation of the market in dried fodder shall be established and cover the following products:
TABLE
Article 2
The marketing year for the products listed in Article 1 shall begin on 1 April and end on 31 March of the following year.
Article 3
This Regulation shall apply without prejudice to the measures provided for by Council Regulation (EC) No 1782/2003.
CHAPTER II
AID
Article 4
1. Aid shall be granted for the products listed in Article 1.
2. Without prejudice to Article 6, the aid shall be set at EUR 33/t.
Article 5
1. A maximum guaranteed quantity (MGQ) per marketing year of 4855900 tonnes of dehydrated and/or sun-dried fodder for which the aid provided for in Article 4(2) may be granted is hereby established.
2. The maximum guaranteed quantity provided for in paragraph 1 shall be divided among the Member States as follows:
Guaranteed national quantities (tonnes)
TABLE
Article 6
Where during a marketing year the volume of dried fodder for which aid as provided for in Article 4(2) is claimed exceeds the guaranteed maximum quantity set out in Article 5(1), the aid to be paid in that marketing year shall be reduced in each Member State in which production exceeds the guaranteed national quantity by a percentage proportionate to that excess.
The reduction shall be set, in accordance with the procedure referred to in Article 18(2), at a level ensuring that budget expenditure expressed in euros does not exceed that what would been attained if the guaranteed maximum quantity had not been exceeded.
Article 7
1. Processing undertakings who apply for aid under this Regulation shall be entitled to an advance payment of EUR 19,80 per tonne, or EUR 26,40 per tonne if they have lodged a security of EUR 6,60 per tonne.
Member States shall make the necessary checks to verify entitlement to the aid. Once entitlement has been established the advance shall be paid.
However, the advance may be paid before entitlement has been established provided the processor lodges a security equal to the amount of the advance plus 10 %. This security shall also serve as security for the purposes of the first subparagraph. It shall be reduced to the level specified in the first subparagraph as soon as entitlement to aid has been established and shall be released in full when the balance of the aid is paid.
2. Before an advance can be paid the dried fodder must have left the processing undertaking.
3. Where an advance has been paid, the balance amounting to the difference between the amount of the advance and the total aid due to the processing undertaking shall be paid subject to application of Article 6.
4. Where the advance exceeds the total to which the processing undertaking is entitled following the application of Article 6, the processor shall reimburse the excess to the competent authority of the Member State on request.
Article 8
At the latest by 31 May of each year, Member States shall notify the Commission of the quantities of dried fodder that in the previous marketing year were eligible for aid as provided for in Article 4(2).
Article 9
The aid provided for in Article 4(2) shall be paid on application from the party concerned, in respect of dried fodder that has left the processing plant and meets the following requirements:
(a) its maximum moisture content is from 11 % to 14 % which may vary depending on the presentation of the product;
(b) its minimum total crude protein content in the dry matter not less than:
(i) 15 % for the products referred to in point (a) and the second indent of point (b) in Article 1;
(ii) 45 % for the products referred to in the first indent of point (b) in Article 1;
(c) it is of sound and fair merchantable quality.
Further requirements, in particular on carotene and fibre content, may be adopted in accordance with the procedure referred to in Article 18(2).
Article 10
Aid as provided for in Article 4(2) shall only be granted to undertakings processing the products listed in Article 1 which comply with the following conditions:
(a) they keep stock records containing at least the following information:
(i) the quantities of green fodder and, where applicable, sun-dried fodder processed; however, where the particular circumstances of the undertaking so require, quantities may be estimated on the basis of areas sown;
(ii) the quantities of dried fodder produced and the quantities, with their quality, that leave the processor;
(b) they provide any other supporting documents needed for verifying entitlement to the aid;
(c) they fall into at least one of the following categories:
(i) processors who have concluded contracts with producers of fodder for drying;
(ii) undertakings which have processed its own crop or, in the case of a group, that of its members;
(iii) undertakings which have obtained their supplies from natural or legal persons providing certain guarantees to be determined and having concluded contracts with producers of fodder for drying; such buyers shall be approved, on terms defined in accordance with the procedure referred to in Article 18(2), by the competent authority of the Member State in which the fodder is harvested.
Article 11
Undertakings processing their own crops or those of their members shall each year submit to the competent body of their Member State, before a date to be set, a declaration of the areas from which the fodder crop is to be processed.
Article 12
1. A contract as referred to in point (c) of Article 10 shall state not only the price to be paid to the grower of the green fodder or, if appropriate, sun-dried fodder but also at least the following:
(a) the area from which the crop is to be delivered to the processor;
(b) the delivery and payment terms.
2. Where a contract as referred to in point (c)(i) of Article 10 is a special-order contract for processing of fodder delivered by a producer, it shall specify at least the area from which the crop is to be delivered and include a clause containing an obligation for the processing undertakings to pay the producer the aid as provided for in Article 4 and received for the quantity processed under the contract.
Article 13
1. Member States shall introduce inspection systems for verifying that each processing undertaking has complied with the following:
(a) the conditions laid down in Articles 1 to 12;
(b) the quantities covered by aid applications correspond to the quantities of dried fodder meeting the minimum quality that leave the processing undertakings.
2. Dried fodder shall be weighed on leaving the processing plant and samples taken.
3. Before adopting provisions for the application of paragraph 1, Member States shall notify such provisions to the Commission.
CHAPTER III
TRADE WITH THIRD COUNTRIES
Article 14
Unless this Regulation provides otherwise, the Common Customs Tariff duty rates shall apply to the products listed in Article 1.
Article 15
1. The general rules for the interpretation of the Combined Nomenclature and the detailed rules for its application shall apply to the tariff classification of products listed in Article 1. The tariff nomenclature resulting from the application of this Regulation shall be incorporated in the Common Customs Tariff.
2. Unless otherwise provided for in this Regulation or in provisions adopted pursuant thereto, the following shall be prohibited in trade with third countries:
(a) the levying of any charge having equivalent effect to a customs duty;
(b) the application of any quantitative restriction or measure having equivalent effect.
Article 16
1. If by reason of imports or exports the Community market in one or more of the products listed in Article 1 is affected by or threatened with serious disturbance likely to jeopardise the achievement of the objectives set out Article 33 of the Treaty, appropriate measures may be applied to trade with non-WTO member countries until such disturbance or threat of it ceases.
2. If the situation referred to in paragraph 1 arises, the Commission shall at a request of a Member State or on its own initiative decide upon the necessary measures. The Member States shall be notified of such measures which shall be immediately applicable. If the Commission receives a request from a Member State, it shall take a decision thereon within three working days following receipt of the request.
3. Measures decided by the Commission may be referred to the Council by any Member State within three working days of the day on which they were notified. The Council shall meet without delay. It may, acting by qualified majority, amend or repeal the measure in question within one month from the date on which it was referred to the Council.
4. Provisions adopted under this Article shall be applied having regard to the obligations arising from agreements concluded in accordance with Article 300(2) of the Treaty.
CHAPTER IV
GENERAL PROVISIONS
Article 17
Unless this Regulation provides otherwise, Articles 87, 88 and 89 of the Treaty shall apply to production of and trade in the products listed in Article 1 of this Regulation.
Article 18
1. The Commission shall be assisted by the Management Committee for Cereals instituted by Article 25 of Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals(8), hereinafter referred to as "the Committee".
2. Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC shall apply.
The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.
3. The Committee shall adopt its Rules of Procedure.
Article 19
The Committee may consider any question raised by its chairman, either on his own initiative or at the request of a representative of a Member State.
Article 20
Detailed rules for the application for this Regulation shall be adopted in accordance with the procedure referred to in Article 18(2), in particular on:
(a) granting of the aid provided for in Article 4 and the advance provided for in Article 7;
(b) verification and establishment of entitlement to the aid, including any necessary controls, all of which may make use of certain elements of the integrated system;
(c) release of the securities indicated in Article 7(1);
(d) criteria for determining the quality standards referred to in Article 9;
(e) conditions to be fulfilled by the undertakings as set out in point (c)(ii) in Article 10 and Article 11;
(f) control measure to be carried out referred to in Article 13(2);
(g) criteria to be fulfilled for the conclusion of contracts as referred to in Article 10 and information which they must contain, in addition to the criteria laid down in Article 12;
(h) application of the maximum guaranteed quantity (MGQ) as referred to in Article 5(1).
Article 21
Transitional measures may be adopted in accordance with the procedure referred to in Article 18(2).
Article 22
Member States shall notify the Commission of the measures they take in order to apply this Regulation.
Article 23
Before 30 September 2008 the Commission shall, on the basis of an evaluation of the common market organisation for dried fodder, present a report to the Council on this sector dealing in particular with the development of areas of leguminous and other green fodder, the production of dried fodder and the savings of fossil fuels achieved. The report shall be accompanied, if needed, by appropriate proposals.
Article 24
Regulation (EC) No 1258/1999 and the provisions adopted in implementation thereof shall apply to the expenditure incurred by the Member States in carrying out obligations under this Regulation.
Article 25
Regulation (EC) No 603/95 is hereby repealed.
References made to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex.
Article 26
This Regulation shall enter into force on the seventh day following that of its publication in the Official Journal of the European Union.
It shall apply from 1 April 2005.
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 (EEC) No 2590/85
of 13 September 1985
amending Regulation (EEC) No 1350/72 on rules for granting aid to hop producers
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1696/71 of 26 July 1971 on the common organization of the market in hops (1); as last amended by the Act of Accession of Greece, and in particular Article 13 (4) thereof,
Whereas, Commission Regulation (EEC) No 1350/72 (2), as amended by Regulation (EEC) No 208/77 (3), lays down the procedure to be followed in granting aid to hop producers and notifying the Commission of the measures taken by Member States to implement the aid system;
Whereas aid may be granted in certain circumstances directly to recognized groups of producers and unions thereof; whereas it seems appropriate in such cases that the Commission be informed about the way the aid has been administered, particularly as regards its allocation to individual producers in proportion to area cultivated and the use of the aid for schemes designed to attain certain objectives of recognized producer groups;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Hops,
HAS ADOPTED THIS REGULATION:
Article 1
Article 4 of Regulation (EEC) No 1350/72 is hereby replaced by the following:
'Article 4
1. Each Member State shall inform the Commission of the names and addresses of the bodies designated in accordance with the second subparagraph of Article 13 (1) of Regulation (EEC) No 1696/71 and the measures which it has taken to apply the system of aid to hop producers.
2. Each Member State shall forward to the Commission each year, in respect of the recognized producer groups and unions thereof based in its territory, all relevant information concerning the terms on which such groups and unions thereof have administered the aid granted to them and, as appropriate, the precise nature of the measures implemented by them as referred to in Article 7 (1) (e) of Regulation (EEC) No 1696/71. This information shall be provided no later than 31 March of the year following that in which the aid was fixed.'
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.
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COMMISSION REGULATION (EEC) No 1103/93 of 30 April 1993 imposing a provisional anti-dumping duty on imports into the Community of certain electronic weighing scales originating in Singapore and the Republic of Korea
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 11 thereof,
After consultation within the Advisory Committee as provided for under the above Regulation,
Whereas:
A. PROCEDURE (1) In January 1992, on the basis of a complaint lodged by several Community producers allegedly representing a major proportion of the Community production, the Commission, by means of a notice published in the Official Journal of the European Communities (2), initiated an anti-dumping proceeding concerning imports into the Community of certain retail electronic weighing sales (hereafter referred to as REWS) originating in Singapore and falling within CN code 8423 81 50, and commenced an investigation.
(2) In March 1992, a further complaint was introduced by the same Community manufacturers as mentioned in recital 1 to extend the proceeding concerning imports of REWS originating in Singapore to imports of the same type of product originating in the Republic of Korea.
(3) In April 1992, the Commission published a notice of extension (3) by which the imports of REWS originating in the Republic of Korea were included in the proceeding concerning imports of this product originating in Singapore.
(4) The Commission officially notified the exporters and the Community importers and producers known to be concerned and gave them the opportunity to make known their views in writing and to request a hearing.
(5) Representatives of the exporters and most of the complainant Community producers made their views known in writing. Submissions were also made by a number of importers. Some of these parties requested and were granted hearings.
(6) The Commission sought and verified all information it considered necessary for a preliminary determination of dumping and injury and carried out investigations at the premises of the following:
(a) Community producers:
- Bizerba Werke GmbH, Balingen, Germany,
- Gec Avery, Smethwick, United Kingdom,
- Maatschappij van Berkels Patent NV, Rijswijk, Netherland,
- Testut, Béthune, France,
- Lutrana, Viry-Châtillon, France,
- Brevetti van Berkel Spa, Milan, Italy,
- Santo Stefano Spa, Cassano Magnago, Italy,
- Vandoni Spa, San Donato Milanese, Italy,
- Grupo Campesa, Barcelona, Spain.
These Community producers account for approximately 80 % of the total Community production of REWS.
(b) Singaporian exporting producers:
- Teraoka Weigh-System PTE, Singapore.
(c) Korean exporting producers:
- Cas Corporation, Seoul,
- Descom Scales Manufacturing Co. Ltd, Seoul, formerly Dailim-Ishida Scales Mfg Co. Ltd, Seoul,
- Han Instrumentation Technology Co. Ltd, Seoul.
(d) Unrelated importers:
- Biesta BV, Leusden, Netherlands,
- Carrin & Co NV, Antwerp, Belgium,
- Digi System NV, Antwerp, Belgium,
- Herbert & Sons, Suffolk, United Kingdom.
(7) The Commission requested and received written and oral submissions from the complainants, from the exporters named and from a number of unrelated importers and verified the information provided to the extent considered necessary.
(8) The investigation into dumping practices covered the period 1 January to 31 December 1991 (investigation period).
B. PRODUCT 1. Product description
(9) The products under investigation are electronic weighing scales for use in the retail trade which incorporate a digital display of the weight, unit price and price to be paid (whether or not including a means of printing this data) falling within CN code 8423 81 50. REWS are produced with different types or levels of performance and technology. In this respect, the industry defines three segments of REWS, i.e. the
- low-range segment which comprises stand-alone REWS, without built-in printer and without preset key system,
- mid-range segment with built-in printer and an additional preset key system,
- top-range segment with the additional possibility of being part of a system and of being computer-related.
Although the potential use and quality of REWS can vary, there is no significant difference in the basic physical characteristics, or marketing methods within the various types of REWS.
In addition, between these three segments there are no clear dividing lines, models in neighbouring segments often being interchangeable. They have, therefore, to be considered as one product for the purposes of this proceeding.
2. Like product
(10) The investigation has shown that the various REWS sold on the Korean and Singaporean market are, despite differences in size, life-span, voltage or design, identical to or closely resemble the REWS exported from Korea and Singapore to the Community and accordingly have to be considered as like products.
Likewise, apart from minor technical differences, the range of Community-produced REWS in all three segments are alike in all respects to the REWS exported from Korea and Singapore to the Community.
C. DUMPING 1. Singapore
1.1. Normal value
(11) Normal value was established on the basis of the weighted average domestic prices for models sold in the ordinary course of trade.
The prices were net of all discounts and rebates directly related to the sales of REWS.
(12) A small quantity of sample sales made at prices which represented 50 % of their cost of production were considered as not having been made in the normal course of trade and were therefore excluded from the transaction on which normal value was calculated.
The remaining domestic sales were considered sufficiently representative as a basis for normal value since they exceeded 5 % of the export sales to the Community.
1.2. Export price
(13) Export sales were made directly to independent importers in the Community. Export prices were therefore determined on the basis of the prices actually paid or payable for the product sold for export to the Community.
1.3. Comparison
(14) In comparing the normal value with export prices, transaction by transaction, the Commission, in accordance with Article 2 (9) and (10) of Regulation (EEC) No 2423/88, took account, where warranted, of the differences affecting price comparability such as physical characteristics, salesmen's salaries and direct selling expenses - i.e., credit terms, transport, insurance and handling costs, packing, technical assistance and ancillary costs - where the direct relationship of these expenses to the sales under consideration could be satisfactorily demonstrated.
All comparisons were made at the ex works stage and at the same level of trade.
1.4. Dumping margin
(15) The weighted average dumping margin for Teraoka Weigh-System PTE Ltd, as a percentage of the free-at-Community-frontier value of imports, duty unpaid, is 8,5 %.
(16) In the case of firms which failed to cooperate in the investigation, the Commission considered that the dumping margin should be established on the basis of the facts available in accordance with Article 7 (7) (b) of Regulation (EEC) No 2423/88. It was considered that the most reasonable facts were those established during the investigation and that it would constitute a bonus for non-cooperation and could lead to circumvention of the anti-dumping measures should such firms be considered to have sold to the Community at a price higher than the lowest established for the cooperating company, which accounted for approximately 80 % of exports to the Community. Consequently, the dumping margin for non-cooperating companies was calculated to amount to 31 %.
2. Republic of Korea
2.1. Export prices
Sales to independent importers
(17) Where sales were made directly to independent importers in the Community, export prices were determined on the basis of the prices actually paid or payable for the product sold for export to the Community. The Korean producers identified these sales as being made at the level of importer/distributor or dealer, and the Commission is satisfied, on the basis of the evidence presented, that this was the case.
In accepting this claim, the Commission took account of the functions of both seller and buyer based on the costs incurred and the quantities sold, on a consistency in the prices charged at the particular level and, finally, on the evidence available on the distribution chain.
Sales to related importers
(18) Where exports were made to related importers in the Community, export prices were constructed, in accordance with Article 2 (8) (b) of Regulation (EEC) No 2423/88, on the basis of resale prices to the first independent purchaser adjusted to take account of all costs incurred between importation and resale together with a 5 % profit margin which was considered reasonable in view of the information available to the Commission from the unrelated importer which cooperated.
The Commission accepted a Korean producer's claim that the export prices, reconstructed to a cif Community frontier basis, were made at the level of importer/distributor. The claim was accepted on the same grounds as outlined above for sales to independent importers.
2.2. Normal value
(a) Normal value based on prices in the exporting country
(19) For the three exporters cooperating in this proceeding, normal value for the models exported to the Community had been established on the basis of the weighted average domestic selling price as these models were sold in sufficient quantities (exceeding 5 % of the export sales to the Community) and at prices permitting the recovery of all costs reasonably allocated in the ordinary course of trade on the domestic market in Korea.
The prices were net of all discounts and rebates directly related to the domestic sales of REWS.
(b) Selective normal value
(20) Two of the three Korean exporters claimed that a distinction should be made between categories of their independent buyers on the domestic market, and that normal value should be established selectively on the basis of the weighted average prices of their sales to a specific category of independent customer, i.e. alleged dealers, which they claimed to be at the most appropriate level of trade for comparison with their export sales. They contended in particular that this special category of customer had different functions from the other unrelated customers, which were reflected in the scale and type of costs incurred, the quantities sold and in the pattern of prices charged.
(21) In this respect, it is the Community institutions' consistent position that a specific level of trade can only be adequately identified if a demonstration is made of all relevant factors including the functions of both seller and buyer and the consistency of quantities, costs and prices at the distribution level in question in relation to other levels.
Another important question in identifying a specific category of customer is how it stands in relation to the distribution system of the market concerned and whether this comparison can indicate that only this category should be compared to export customers which hold a similar position in the distribution system of the export market.
(22) After an examination of the sales structure of the exporting producers in the domestic market and in the Community, the Commission took the view that this claim should be rejected. Indeed, the producers failed to establish adequately a consistency of quantities, costs and prices at one distribution level in relation to other levels. In fact the evidence provided on some of these factors for the specific category of customer in question showed that they were similar to a significant degree to other categories alleged to be different.
(23) In these circumstances, the Commission concluded for the producers in question, that the evidence presented was insufficient to demonstrate that sales were made to specific and clearly distinguishable categories of customer or that only one of these allegedly different categories was more appropriate than all domestic sales for comparison with the export prices. Thus, normal value for these producers was determined on the basis of all sales to independent customers.
2.3. Comparison
(24) Since prices varied, normal value was compared with export prices on a transaction-by-transaction basis. The Commission, in accordance with Article 2 (9) and (10) of Regulation (EEC) No 2423/88, took account, where warranted, of the differences affecting price comparability, such as physical characteristics, sales personnel salaries and direct selling expenses, i.e., credit terms, transport, insurance and handling costs, packing, technical assistance and ancillary costs, where a direct relationship of these differences to the sales under consideration could be satisfactorily demonstrated.
All comparisons were made at the ex works stage and at the same level of trade.
(25) Two Korean producers concerned claimed that the normal value should be reduced in respect of certain alleged rebates granted to their customers on the domestic market to which running account facilities for these customers' purchases of all products in the producers' range were made available. However, the Commission found that the rebates in question, in addition to not being specifically related to weighing scales, were not granted on the basis of the value of the sales made but according to the reduction in the level of the overall outstanding balance. Accordingly, it was concluded that there was no direct link between the rebate and the sales under consideration.
(26) For two Korean producers, the amount of the allowance claimed for sales personnel salaries was adjusted to take account of the fact that some of the personnel for which the allowance hade been claimed were not wholly engaged in direct selling activities. Likewise, the amount for transport was reduced since the costs to which the allowance referred included general travel and communication expenses. Such costs could not be directly linked to the sale of the product and accordingly are not allowable pursuant to Article 2 (10) of Regulation (EEC) No 2423/88.
2.4. Dumping margins
(27) The weighted average dumping margins for each Korean exporter concerned, as a percentage of the free-at-Community-frontier value of imports, were as follows:
- Cas Corporation 9,3 %,
- Descom Scales Manufacturing Co. Ltd 29,0 %,
- Han Instrumentation Technology Co. Ltd 7,2 %.
(28) In the case of firms which failed to cooperate in the investigation, the dumping margin should be established on the basis of the facts available in accordance with Article 7 (7) (b) of Regulation (EEC) No 2423/88. The Commission considered that the most reasonable facts were those established during the investigation and that it would constitute a bonus for non-cooperation and could lead to circumvention of anti-dumping measures should such firms be attributed a dumping margin lower than the highest established for the cooperating companies which accounted for approximately 85 % of exports to the Community. Consequently, the dumping margin for non-cooperating companies should amount to 29,0 %.
D. INJURY 1. Cumulation
(29) When considering whether the effects of Korean and Singaporean imports had to be analysed cumulatively, the Commission took account of the fact that the exported products of each of the countries concerned were alike in all respects or closely resembled each other, were interchangeable, and were marketed in the Community within a comparable period. They also competed with each other and with REWS produced in the Community. In addition, the market share both of Korean and of Singaporean exporters is significant.
Consequently, the effect of the dumped imports concerned on the Community industry was assessed jointly.
2. Injury factors
2.1. Exporters' behaviour on the Community market
(a) Evolution of Community consumption
(30) The Community market for REWS decreased slightly from approximately 140 000 units sold in 1989 to 135 000 units in 1990 and remained at the same level in 1991 (135 000 units sold).
(b) Volume and market share of the dumped imports from Singapore and Korea
(31) The volume of dumped REWS imported from Singapore and Korea increased from 3 208 units in 1988 to 14 031 units in 1991. The market share held by these two countries rose from 2,3 % in 1988 to 10,3 % in 1991.
(c) Price of the dumped imports
(32) The Commission investigated whether price undercutting was practised by the Korean and Singaporean exporters during the investigation period. This was examined in relation to the sales of the exporters in the major Community markets (United Kingdom, Germany, Belgium, Netherlands, Portugal, France and Greece) where these producers sold nearly all exported REWS.
(33) A comparison between the prices of representative models marketed by the Community industry and those of the comparable models of the exporters concerned was made on the basis of sales taken at the same level of trade (prices to unrelated distributors or dealers) on the major Community markets during the investigation period. No adjustment for technical differences had to be made because the models selected were identical in the perception of the buyer. The comparison outlined above showed price undercutting which, for all companies, exceeded 20 % and 30 % in the case of the Korean exporter found to have the highest dumping margin.
2.2. Situation of the Community industry
(a) Production and utilization of capacity
(34) Community production of REWS fell from 140 000 units in 1988 to 107 000 units in 1991, i.e., by some 23 %. At the same time, production capacity decreased from 181 000 in 1988 to 140 000 in 1991.
The utilization rates have fallen from 77 % in 1988 to 73 % in 1990. A small increase from 1990 to 1991 resulted mainly from the closure of a Community manufacturer with a significant production capacity.
(b) Sales volume and market shares of the Community industry
(35) The quantity of REWS sold in the Community by the Community industry fell from 113 000 units in 1988 to 105 000 units in 1989 and to 84 600 units in 1991. The Community industry's market share declined as follows: 84 % in 1988, 75 % in 1989, 72 % in 1990 and 62 % in 1991.
(c) Price development
(36) The prices of the Community industry decreased between 1988 and 1991 by nearly 6 % on a weighted average basis and this despite increasing costs.
(d) Profits
(37) The Commission found that, overall, the Community industry had recorded losses since 1988 for sales in the Community. The apparent improvement from 1990 to 1991, i.e. the reduced loss on turnover on a weighted average basis from 5,5 to 1 %, merely derived from the closure in 1990 of a Community producer which had recorded considerable losses from 1988 until its closure.
(e) Employment and investment
(38) Between 1988 and 1991 the Community industry shed 378 jobs, i.e. 25 % of its labour force. Investments were cut back and two factories closed.
(f) Stocks
(39) Stocks remained at a continuously high level between 1988 and 1991. The small decrease apparent in 1990 derived from the closure of a Community producer in that year.
2.3. Conclusions
(40) In conclusion, the Commission considers that the Community industry suffered material injury which consisted mainly in persistent financial losses, decline in market share, employment cut backs and a decrease in investment. Community producers were forced to reduce their production or to shut down plants.
3. Causation of injury
3.1. Effects of dumped imports
(41) In its examination of the cause of the material injury suffered by the Community industry the Commission found that the increase of dumped Korean and Singaporean imports coincided with a significant loss of market share, price erosion and reduced profitability on the part of the Community industry.
(42) The decline in market shares between 1988 and 1991 from 84 to 62 %, occurred while the Community industry was under attack from two sides. On the one hand, it suffered from the impact of dumped Japanese imports (see Council Regulation (EEC) No 993/93 (4)), especially in the medium and high segments of REWS, and on the other hand, it had to face the rapid penetration of the dumped Korean and Singaporean imports particularly in the low-range models whose market share increased over the same period, from 2 to nearly 11 %.
(43) This situation was aggravated by the fact that the dumped imports were sold in an open and transparent market where prices were well known. Price elasticity combined with considerable price undercutting due to dumping had, therefore, a clear effect on the sales volumes and the profit and loss results of the Community industry.
(44) The investigation showed, as far as the exporters were concerned, an overall price decrease from 1988 to 1991 by 4 % on a weighted average basis. The Community producers had to adjust their prices to meet this downward trend. Furthermore, price undercutting was widespread and practised constantly on the Community market by the Korean and Singaporean exporters.
(45) In this respect, it has been found that, at the bottom end of the market, Singaporean and Korean producers compete to a very large extent on price alone, with products of comparatively standard technology and no significant differences in features and quality. The appearance and the rapid penetration of Singaporean and Korean exports to the Community could thus not fail to affect negatively the sales volume, sales prices, market shares and profitability of the Community industry.
3.2. Other factors
(46) The Commission also considered whether other factors than the dumped imports could have prevented the Community industry from making a reasonable return on sales in the Community.
(47) In this respect, one exporter alleged that the effects of the increase in volume and the low price of REWS imports from other countries, principally Japan, Taiwan and Turkey, have been at least co-responsible for the injury suffered by the Community industry.
(48) The Council has already found (see recital 42) that many of the economic difficulties encountered by the Community REWS industry have been caused by dumped Japanese imports. However, this does not detract from the conclusion that the dumped Singaporean and Korean imports also had substantial influence on the injurious situation of the Community industry.
(49) As far as imports from Taiwan are concerned, the Commission found that these imported scales are mostly counting scales which are not alike to the product concerned.
(50) Finally, it appeared that there were no imports from Turkey during the investigation period.
(51) The Commission did not find any other factors which could explain the precarious economic situation of the Community industry. Indeed, there were neither substantial imports, other than those mentioned above, nor was there any contraction in demand between 1990 and 1991.
3.3. Conclusion
(52) In these circumstances, and even taking into account that the Japanese imports have also contributed to the poor situation of the Community industry, the Commission has come to the conclusion, for the purpose of a provisional determination, that the effects of dumped imports of REWS originating in Korea and Singapore, taken in isolation, have to be considered as causing material injury to the Community industry.
E. COMMUNITY INTEREST General considerations
(53) The purpose of anti-dumping duties is, in general, to remove the injury and to eliminate the distortions caused by unfair trade in order to re-establish a situation of open and fair competition. Such a re-establishment is in the general interest of the Community.
(54) For the Community industry concerned, the Council, in recitals 94 to 98 of Regulation (EEC) No 993/93 concerning Japan, has already established that Community interests call for intervention. The Commission did not find any element which would justify that a different approach be taken for this proceeding.
F. LEVEL OF THE DUTIES (55) According to Article 13 (3) of Regulation (EEC) No 2423/88, the amount of the duty necessary to prevent injury during the further proceeding should not exceed the dumping margin or the level necessary to remove injury, whichever is lower. Since, in the present case, the level of injury (see recitals 32 and 33 regarding price undercutting) exceeds the dumping margin, the latter should form the basis of the anti-dumping duty to be provisionally imposed.
(56) Accordingly, the following duties should be imposed:
- Cas Corporation, Seoul 9,3 %,
- Han Instrumention Technology Co. Ltd, Seoul 7,2 %,
- Descom Scales Manufacturing Co. Ltd, Seoul 29,0 %,
- Teraoka Weigh-System PTE Ltd, Singapore 8,5 %.
(57) In the case of firms which failed to cooperate in the investigation, the Commission considered that the duty should be established on the basis of the facts available in accordance with Article 7 (7) (b) of Regulation (EEC) No 2423/88. It was considered that the most reasonable facts were those established during the investigation and that it would constitute a bonus for non-cooperation and could lead to circumvention of the anti-dumping measures should such firms be attributed a duty lower than the highest dumping margins established for the cooperating companies, namely 31 % for products originating from Singapore and 29 % for products originating from Korea.
G. FINAL PROVISION (58) In the interest of sound administration, a period should be fixed within which the parties concerned may make their views known in writing 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 electronic weighing scales for use in the retail trade which incorporate a digital display of the weight, unit price and price to be paid, whether or not including a means of printing this data falling within CN code 8423 81 50 (Taric code: 8423 81 50*10) and originating in the Republic of Korea and Singapore.
2. The rate of duty applicable to the net free-at-Community-frontier price, before duty, shall be as follows:
(a) Korea
Products manufactured by:
Han Instrumentation Technology Co. Ltd, Seoul 7,2 %,
(Taric additional code 8700)
Cas Corporation, Seoul 9,3 %,
(Taric additional code 8701)
All others (Taric additional code 8702) 29,0 %;
(b) Singapore
Products manufactured by:
Teraoka Weigh Systems PTE, Ltd 8,5 %,
(Taric additional code 8703)
All others (Taric additional code 8704) 31,0 %.
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) 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 from 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 Commission.
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, 30 April 1993. | [
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COMMISSION REGULATION (EC) No 1038/2004
of 27 May 2004
fixing the maximum export refund for white sugar to certain third countries for the 28th partial invitation to tender issued within the framework of the standing invitation to tender provided for in Regulation (EC) No 1290/2003
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (1) and in particular the second indent of Article 27(5) thereof,
Whereas:
(1)
Commission Regulation (EC) No 1290/2003 of 18 July 2003 on a standing invitation to tender to determine levies and/or refunds on exports of white sugar (2), for the 2003/2004 marketing year, requires partial invitations to tender to be issued for the export of this sugar to certain third countries.
(2)
Pursuant to Article 9(1) of Regulation (EC) No 1290/2003 a maximum export refund shall be fixed, as the case may be, account being taken in particular of the state and foreseeable development of the Community and world markets in sugar, for the partial invitation to tender in question.
(3)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
For the 28th partial invitation to tender for white sugar issued pursuant to Regulation (EC) No 1290/2003 the maximum amount of the export refund shall be 49,950 EUR/100 kg.
Article 2
This Regulation shall enter into force on 28 May 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 May 2004. | [
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COMMISSION DECISION
of 9 December 1998
on the measure planned by Austria for the clean-up of the Kiener Deponie Bachmanning landfill
(notified under document number C(1998) 4195)
(Only the German text is authentic)
(Text with EEA relevance)
(1999/272/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 93(2) thereof
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the abovementioned provisions,
1. PROCEDURE
By letter dated 23 September 1997, Austria informed the Commission that the province of Upper Austria intended to part-finance the clean-up of the contaminated Kiener Deponie Bachmanning landfill site, which had been abandoned. By letter dated 20 October 1997, the Commission requested further information. Austria's reply was received on 18 November 1997. Following a meeting in Brussels on 12 December 1997, the Commission wrote on 18 December 1997 requesting further information on matters that had still not been clarified. The information was provided by Austria by letter dated 21 January 1998; the letter also contained formal notification of the planned part-financing of the project by the Federal Government
By letter dated 22 April 1998, the Commission informed Austria that Article 93(2) proceedings were being initiated on the notified measure.
The Commission's decision was published in the Official Journal of the European Communities(1). The Commission called on interested parties to submit their comments. The Commission received no such comments.
2. DETAILED DESCRIPTION OF THE MEASURE
The abandoned and contaminated Kiener Deponie Bachmanning landfill is situated in Upper Austria. The land is registered under No 345/2 in the land register of 51101 Aichkirchen.
The landfill was operated by Kieba BaugmbH (in liquidation), Unterseling 19, A-4672 Bachmanning ("Kieba") in the period from 1975 to 1983. Kieba is an SME within the meaning of the Commission recommendation of 3 April 1996 concerning the definition of small and medium-sized enterprises(2) and is currently in the process of being wound up. Kieba's main shareholder was the late Herbert Kiener.
The current owner of the land is Atlas ImmobilienverwaltungsgmbH, Unterseling 19, A-4672 Bachmanning ("Atlas"). Atlas was set up specifically in connection with the contamination and was aware of it. Atlas is an SME within the meaning of the Commission recommendation concerning the definition of small and medium-sized enterprises. The main shareholder was once again Mr Kiener.
The necessary permits for carrying out the clean-up operation at the landfill site are held by ASA Oberösterreich Holding GmbH ("ASA"), which specialises in the decontamination of land. ASA belongs to the French group Electricité de France (EDF) and is a large firm within the meaning of the Commission recommendation concerning the definition of small and medium-sized enterprises.
The total costs of the clean-up are estimated at ATS 313,2 million (ECU 22,7 million). ASA applied to the Federal Government on 22 May 1995 and to the province of Upper Austria on 23 January 1996 for public funding of the clean-up operation. The measure is to be financed entirely by the State.
(a) The Federal Government undertook to provide ATS 206,7 million (ECU 15,0 million) pursuant to a decision taken on 12 June 1996 under the assistance guidelines 1991 for the cleaning-up or making safe of contaminated sites ("assistance guidelines 1991") and concluded an assistance agreement with ASA for this purpose on 20 December 1996.
(b) The province of Upper Austria undertook to provide ATS 106,5 million (ECU 7,7 million) pursuant to a decision taken by the Government of the province of Upper Austria on 7 November 1996 and concluded assistance agreements with ASA for this purpose on 23 and 28 April 1997.
Payments will be made in the period from 1998 to 2000 on presentation of the invoices.
3. INITIAL COMMISSION POSITION
In the decision on the initiation of Article 93(2) proceedings, the Commission took the following position:
(a) Austria should have notified the planned State funding as ad hoc, since it is doubtful whether the Federal Government applied the assistance guidelines 1991 in accordance with all the provisions contained therein and since the guidelines do not allow the province of Upper Austria to grant funding.
(b) The State funding can no longer confer any benefit on Kieba, since the firm is in the process of being wound up.
(c) The State funding may indirectly confer an unjustified benefit on Atlas in the form of an increase in the value of the land and the saving of decontamination costs.
(d) The fee for ASA may confer an unjustified benefit on the firm, since Austria has not sufficiently demonstrated that the fee matches the market price.
(e) It is not clear whether any aid for Atlas and/or ASA can be exempted on the basis of the derogations provided for in Article 92 of the EC Treaty.
4. AUSTRIA'S POSITION
By letter, dated 14 July 1998, Austria stated its position on the Commission's decision to initiate proceedings.
Austria again emphasised that the pollution had already resulted in dangerous contamination of the groundwater and that a thorough decontamination operation was urgently required. As supporting evidence of the urgency of the clean-up, Austria submitted in particular a report drawn up on 14 May 1998 by an expert in water resources, a report drawn up on 22 April 1998 by an official expert in hydrochemistry and a report drawn up on 13 May 1998 by a medical expert.
Austria also pointed out that State funding for cleaning up contaminated sites was intended solely to ensure environmental protection and not to provide assistance for firms. The State funding provided by the Federal Government and the province of Upper Austria did not therefore constitute State aid within the meaning of Article 92 of the EC Treaty. Even if this were the case, the aid was covered by the assistance guidelines adopted in 1991. It did not matter whether the documents referred to in Article 4 (3) of the assistance guidelines 1991 had been submitted at the time when the assistance was approved. The stipulation in the assistance agreement with the ASA that certain individual provisions of the assistance guidelines 1991 did not apply had been included for reasons of legal certainty and was in accordance with the assistance guidelines 1991. Austria also stated that, under the assistance guidelines 1991, up to 100 % of eligible clean-up costs could be financed and that the sharing of the assistance between the Federal Government and other public bodies, in particular the province of Upper Austria, was immaterial.
Furthermore, Kieba and Atlas were financially not in a position to assume even part of the clean-up measures. It was also pointed out that the administrative procedure took an average of ten years from the time when the authorities first took action until the time when the clean-up measures were completed. Austria had accordingly concluded an agreement with ASA on the financing of the clean-up measures.
As regards the legal instruments which Austria wished to use in order to recover the clean-up costs from Kieba, Atlas and their shareholders, Austria had submitted a legal opinion drawn up by two law firms on 24 June 1998, which had concluded that the proposed legal measures offered good prospects of success.
Austria also presented an extract from the register of companies and demonstrated that Kieba was in liquidation. As is evident from the copy of a letter from Kieba's bankruptcy administrator, dated 11 May 1998, the end of the bankruptcy proceedings is not yet in sight.
An extract form the register of companies was also presented for Atlas. An assessment of Atlas's financial situation by a credit protection association was also submitted. This showed that, apart from the contaminated landfill site, Atlas had no other significant assets. According to the explanations presented by Austria, Atlas had largely ceased its business activity. Doubts were also expressed as to whether Atlas could be held liable for cleaning up the site. This assessment was confirmed in a legal opinion drawn up by two law firms on 24 June 1998.
According to the explanations presented by Austria, the relevant land is designated as grassland in the Upper Austria Regional Planning Act(3) and the land-use plan (Zl. 610-1/1996) of the municipality of Aichkirchen. In Austria's view, it is to be assumed that, once the clean-up operation has been successfully completed, the land will be put to agricultural and forestry use. An opinion drawn up by a court-approved expert was submitted on this point, in which the market value following the clean-up was determined under a comparative value procedure on the basis of the Land Valuation Act(4).
Austria also made it clear that ASA receives remuneration for its services. In the report by two court-approved experts on tendering and award procedures, which it had attached, the remuneration was deemed to be appropriate.
5. ASSESSMENT OF THE STATE MEASURE
The Commission based its assessment of the aid case on the information provided by Austria by letter dated 14 July 1998.
5.1. Notification obligations
Austria approved the State funding of the clean-up measures on 12 July 1996 and concluded an assistance agreement with ASA on 20 December 1996. The funding was made available in accordance with the assistance guidelines 1991.
The assistance guidelines 1991 were notified to the EFTA Surveillance Authority on 2 March 1993 as an existing scheme and registered by it under number ESA 30-151. Under the scheme, the Federal Government can finance up to 100 % of clean-up measures relating to contaminated sites. The scheme expired when the Commission approved, by letter dated 10 February 1997, the new assistance guidelines for 1997. Accordingly, the assistance guidelines 1991 applied in the case at issue.
However, the Commission notes that, at the time when the Federal Government approved the financing and signed the assistance agreement, the optimised clean-up procedure had not yet been completed. Agreements on such a procedure were signed on 17 and 18 June 1997 and on 14 July 1997. Under Article 4(3) of the assistance guidelines 1991, however, this information should have been available when the assistance agreement was signed. Consequently, Austria did not fulfil all the requirements provided for in the existing aid scheme.
Furthermore, the assistance agreement between ASA and the Federal Government excluded a number of provisions contained in the assistance guidelines 1991. Austria explained that this had been necessary, because the assistance agreement between ASA and the Federal Government could not impose any obligations on Kieba and Atlas, since the two firms had not been involved in the assistance agreement. In the Commission's view, however, the exclusion of such provisions confers an advantage on the polluter Kieba and the landowner Atlas. The assistance guidelines 1991 clearly impose certain obligations on landowners and polluters. In effect, the Federal Government can grant State funding under the scheme only if the polluter and landowner are prepared or are compelled to fulfil the obligations provided for in the scheme. However, since a number of provisions were excluded, the Federal Government did not comply with all the conditions laid down in the assistance guidelines 1991.
Furthermore, under the assistance guidelines 1991, the province of Upper Austria is not allowed to provide funding. Consequently, the financing measure of the province of Upper Austria is not covered by this existing scheme.
Since the Federal Government did not comply with all the requirements laid down in the assistance guidelines 1991 and since the funding provided by the province of Upper Austria is not covered by an existing or approved scheme, Austria was obliged to notify the planned State funding by the Federal Government and the province of Upper Austria as ad hoc aid pursuant to Article 93(3) of the EC Treaty. Austria did not comply with this obligation.
5.2. Kieba
Austrian administrative law, and in particular the Water Law Act(5) the Federal Waste Management Act(6) and the Industrial Code(7), contains a number of different provisions on liability. At all events, however, under the environmental provisions applicable to contaminated landfills, the polluter (tortfeasor), namely the legal person whose activity has led to the relevant hazard, bears the primary responsibility. The polluter (tortfeasor) is deemed to be either the operator of the landfill or the person who abandoned it.
The Wels-Land district administrative authority (Bezirkshauptmannschaft) granted Keiba, on 29 May 1978 and on 22 May 1979 (Zl. Wa 1-16-1976) under the Water Law Act, a licence to operate a household and special waste landfill site. It was also Kieba which abandoned the landfill. According to information provided by Austria, there is abundant evidence that the firm did not comply with the licences issued to it either in terms of type of waste or in terms of the period covered. Although the licence pursuant to the Water Law Act expired on 31 December 1981 activities were continued, in all probability until April or May 1983. According to the information provided by Austria, Kieba is the only ascertainable polluter.
In accordance with Article 31(1) and Article 138(1) of the Water Law Act, Article 32(1) of the Federal Waste Management Act and Article 83(3) of the Industrial Code, the Austrian administrative authorities must hold this undertaking primarily liable. They therefore ordered Kieba as early as 9 August 1991 to clean up the contaminated landfill site. Kieba successfully appealed against this order on procedural grounds.
The Austrian authorities did not issue any further order, nor did they intend to do so in the near future, since the Wels regional court had initiated bankruptcy proceedings against Kieba on 29 September 1996. The estate of Kieba's main shareholder, Herbert Kiener, was also the subject of insolvency proceedings. No one has so far taken possession of the inheritance.
The Commission notes that the Austrian Federal Government and the province of Upper Austria, by financing the clean-up, have assumed the obligations of the polluter, Kieba. It must be borne in mind, however, that Kieba is being wound up and no longer exercises any business activity. Consequently, Kieba can no longer derive any benefit from the State financing, and any benefit pursued in the past can no longer affect trade between Member States.
For the rest, the Commission takes note of the fact that Austria has undertaken to use all available legal means to recover the costs of the clean-up from Kieba. In order to reclaim improperly made payments, an action on grounds of unjust enrichment is to be brought pursuant to Article 1042 of the Civil Code and damages claimed pursuant to Article 1295.
5.3. Atlas
The Water Law Act and the Federal Waste Management Act contain provisions on the liability of landowners. Austria doubts, however, that Atlas can be made liable on the basis of these environmental provisions. This conclusion is also drawn in the two legal opinions.
The Commission would once again point out, however, that Atlas was specially set up in connection with the contamination and that Atlas was aware of it. Furthermore, there is a close shareholder link between Kieba and Atlas. In the Commission's view, therefore, Atlas and Kieba are jointly and severally liable under a repayment order. If therefore ASA carries out the clean-up operation with State assistance, the aid measure could confer a benefit on Atlas, since it would not have to pay for the clean-up costs.
The Commission notes that, according to the information provided by Austria, the firm does not carry out any significant business activity and might indeed be in difficulty. The danger that the abovementioned benefit might distort competition is therefore at present slight. However, the Commission cannot rule out the possibility that a third party might take over the shares in the firm and extend its business activity to the point where trade between Member States might be affected. State funding of the clean-up operation by ASA would strengthen Atlas's position compared with competitors on the EEA market that do not have the benefit of being able to carry out clean-up operations on their contaminated sites free of charge. Consequently, the Commission cannot rule out the possibility that the benefits accruing to Atlas through State funding might in future distort competition on the EEA market. With regard to Atlas, therefore, the financing may constitute State aid within the meaning of Article 92(1) of the EC Treaty and Article 61(1) of the EEA Agreement.
Article 92(1) of the EC Treaty and Article 61(1) of the EEA Agreement established the principle that aid having the characteristics set out therein is incompatible with the common market. Article 92(2) and Article 92(3) of the EC Treaty and Article 61(2) and Article 61(3) of the EEA Agreement specify which types of aid may exceptionally be considered to be compatible with the common market. In this instance, it is evident that none of these derogations applies.
The derogations provided for in Article 92(2) of the EC Treaty and Article 61(2) of the EEA Agreement are not applicable, since the aid is not aid having a social character, granted to individual consumers, or aid to make good the damage caused by natural disasters or aid granted to the economy of certain areas of the Federal Republic of Germany affected by the division of Germany.
The derogations provided for in Article 92(3)(a) of the EC Treaty and Article 61(3)(a) of the EEA Agreement, and the regional derogations provided for in Article 92(3)(c) of the EC Treaty and Article 61(3)(c) of the EEA Agreement are not relevant, since Atlas is situated outside an assisted area.
As regards the derogations provided for in Article 92(3)(b) of the EC Treaty and Article 61(3)(b) of the EEA Agreement, the Commission notes that the relevant project does not fulfil the criteria which the Commission normally apply to "projects of common European interest" and that the aid is not intended to remedy a serious disturbance in the economy of a Member State.
The first part of the derogation provided for in Article 92(3)(c) of the EC Treaty and Article 61(3)(c) of the EEA Agreement concerning aid to facilitate the development of certain economic areas is not applicable, since the aid is not intended to contribute to the development of certain sectoral economic activities.
Similarly, the derogations provided for in Article 92(3)(d) of the EC Treaty and Article 61(3)(d) of the EEA Agreement do not apply, since the aid is not intended to promote culture and heritage conservation.
The Commission also notes that it is clearly not compatible with the "polluter pays" principle enshrined in Article 130r of the EC Treaty that a polluter should sell his contaminated land to one of his firms in order to avoid the clean-up costs, that the firm responsible for the contamination should file for bankruptcy and that the business activity should be carried on by the newly established firm.
The Commission therefore considers that none of the derogations apply in this case.
However, the Commission takes note of the fact that Austria has undertaken to use all available legal means to recover the costs of the clean-up from Atlas. Repayment of the clean-up costs by Atlas would, in the Commission's view, mean that the State funding of the clean-up operation did not confer a benefit on Atlas and that no State aid within the meaning of Article 92 of the EC Treaty was involved.
5.4. ASA
On 29 December 1994, ASA Inerta Abfallbehandlungs GmbH applied, on its own initiative, for all the necessary permits under Article 32(4) of the Environmental Protection Act(8) for carrying out the decontamination of the landfill site. That Act had been notified to the EFTA Surveillance Authority as an existing aid scheme. The permits (UR-450000/323-1996) were issued on 22 February 1996 under the Waste Management Act and on 8 March 1996 under the Upper Austria Nature and Countryside Protection Act. Subsequently, ASA took over the permits issued to ASA Inerta Abfallbehandlungs GmbH.
Austria concluded assistance agreements with ASA, since ASA was the only company that had the necessary permits. The Commission notes, however, that the assistance agreements with ASA were concluded without giving other Austrian or foreign competitors the opportunity of tendering for the agreements. It must therefore be examined whether the fee for ASA corresponds to the market price.
The Commission notes that ASA is not carrying out the decontamination itself, but is acting as general contractor with responsibility for planning and coordinating the clean-up measures. For its services as general contractor, ASA will receive a fee of ATS 37,3 million (ECU 2,7 million), which is included in the overall clean-up costs of ATS 313,2 million (ECU 22,7 million).
Austria has provided evidence that the fee for ASA was determined in accordance with the "fee guidelines for general contractors", which in turn are based on the regulations governing fees for project management and the building industry. Austria has also shown that under the agreement ASA will receive only 85 % of the amount calculated in accordance with these regulations. The opinions of two court-approved experts which have been submitted confirm that the fee corresponds to the market price.
After careful examination of the information provided, the Commission concurs with Austria's view that ASA will receive an appropriate fee for its planning and coordination work and that the fee does not comprise any aid component within the meaning of Article 92 of the EC Treaty.
The Commission would point out that the investigations into whether Austria complied with Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts(9) have not yet been concluded. This Decision is wholly without prejudice to the outcome of such investigations.
On the carrying-out of the clean-up work by subcontractors, the Commission notes that, on the basis of the conditions laid down in the assistance agreements, ASA is required to apply Directive Ö-Norm-A-2050 on the coordination of procedures for the award of public service contracts. Austria has provided a detailed list of the work to be performed by subcontractors and has demonstrated that most of the work to be carried out is being awarded through public tendering procedures. The Commission therefore concludes that the remuneration for the subcontractors does not contain any State aid component within the meaning of Article 92 of the EC Treaty.
6. CONCLUSIONS
In view of the above assessment of the State funding of the clean-up of the contaminated Kiener Deponie Bachmanning landfill site, the Commission notes the following:
(a) the polluter Kieba is in liquidation and no longer pursues any business activity. Consequently, Kieba can no longer derive any benefit from State financing;
(b) if ASA carries out the clean-up measures with State assistance, this measure could confer a benefit on Atlas, since the firm would then be spared the clean-up costs. This would constitute State aid for Atlas, for which none of the derogations provided for in Article 92(2) and (3) of the EC Treaty is applicable. Recovery and reimbursement of the clean-up costs by Atlas would exclude the possibility of the State funding constituting State aid within the meaning of Article 92 of the EC Treaty;
(c) the firm responsible for cleaning up the contaminated site, ASA, is to receive an appropriate fee for its planning and coordination work. The fee does not contain any aid component.
Consequently, the Federal Government and the province of Upper Austria may, in accordance with the notification, finance the clean-up measures in full, subject to the condition that Atlas reimburses the clean-up costs. The clean-up costs must be reclaimed in full from Atlas in accordance with national procedures and legal provisions, with interest running from the date of disbursement until such time as the amount has been fully reimbursed, at the rate used as the reference rate for calculating the net grant-equivalent of regional aid in Austria,
HAS ADOPTED THIS DECISION:
Article 1
The planned State financing of the clean-up, at an estimated cost of ATS 313,2 million (ECU 22,7 million), of the abandoned and contaminated Kiener Deponie Bachmanning landfill site does not constitute State aid, subject to the conditions stipulated in Article 2.
Article 2
Austria shall order Atlas to repay the State financed clean-up costs and shall ensure that it receives them. Repayment shall be made in accordance with national procedures and legal provisions, with interest running from the date of disbursement until such time as the clean-up costs have been repaid by Atlas, at the rate used as the reference rate for calculating the net grant-equivalent of regional aid in Austria.
Article 3
Austria shall inform the Commission within two months of notification of this Decision of the measures it has taken to comply with it.
Article 4
This Decision is addressed to the Republic of Austria.
Done at Brussels, 9 December 1998. | [
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COUNCIL DECISION of 16 March 1992 on the conclusion of a Protocol on financial and technical cooperation between the European Economic Community and the Arab Republic of Egypt (92/207/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 238 thereof,
Having regard to the recommendation from the Commission,
Having regard to the assent of the European Parliament (1),
Whereas the Protocol on financial and technical cooperation between the European Economic Community and the Arab Republic of Egypt should be approved,
HAS DECIDED AS FOLLOWS:
Article 1
The Protocol on financial and technical cooperation between the European Economic Community and the Arab Republic of Egypt is hereby approved on behalf of the Community.
The text of the Protocol is attached to this Decision.
Article 2
The President of the Council shall give the notification provided for in Article 22 (1) of the Protocol (2).
Article 3
This Decision shall take effect on the day following its publication in the Official Journal of the European Communities. Done at Brussels, 16 March 1992. | [
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Commission Regulation (EC) No 1012/2003
of 12 June 2003
amending for the 19th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Council Regulation (EC) No 467/2001 prohibiting the export of certain goods and services to Afghanistan, strengthening the flight ban and extending the freeze of funds and other financial resources in respect of the Taliban of Afghanistan(1), as last amended by Commission Regulation (EC) No 866/2003(2), and in particular Article 7(1), first indent, thereof,
Whereas:
(1) Annex I to Regulation (EC) No 881/2002 lists the persons, groups and entities covered by the freezing of funds and economic resources under that Regulation.
(2) On 10 June 2003, the Sanctions Committee decided to amend the list of persons, groups and entities to whom the freezing of funds and economic resources should apply. Therefore, Annex I should be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Annex I to Regulation (EC) No 881/2002 is hereby amended in accordance with the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 June 2003. | [
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COMMISSION REGULATION (EEC) No 1663/93 of 29 June 1993 amending Regulation (EEC) No 3824/92 laying down the prices and amounts fixed in ecus to be amended as a result of monetary realignments
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3813/92 of 28 December 1992 on the unit of account and the conversion rates to be applied for the purposes of the common agricultural policy (1), and in particular Articles 12 and 13 (1) thereof,
Whereas Commission Regulation (EEC) No 3824/92 (2), as last amended by Regulation (EEC) No 1330/93 (3), establishes the list of prices and amounts in ecus adjusted as a result of monetary realignments; whereas an addition should be made to the list to take account of the aids introduced as part of the application in 1993 of common prices in Portugal and of the fixing of prices and associated measures for the 1993/94 marketing year;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committees concerned,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EEC) No 3824/92 is hereby amended as follows:
1. in '1. CEREALS', the following points are added after point 1.9:
'1.10. Aid for the production of certain varieties of rice, as referred to in Article 8a of Regulation (EEC) No 1418/76, as last amended by Regulation (EEC) No 1544/93 (*).
1.11. Aid to producers of paddy rice in Portugal as referred to in Article 1 (c) of Council Regulation (EEC) No 738/93 of 17 March 1993 amending the transitional measures governing common organization of the market as provided for by Regulation (EEC) No 3653/90 (**).
(*) OJ No 154, 25. 6. 1993, p. 5.
(**) OJ No L 77, 31. 3. 1993, p. 1.';
2. in '8. MILK AND MILK PRODUCTS', the following point is added after point 8.12:
'8.13. Aid to milk producers in Portugal as referred to in Article 2 of Council Regulation (EEC) No 739/93 of 17 March 1993 on application of the common price for milk powder in Portugal (***).
(***) OJ No L 77, 31. 3. 1993, p. 4.'
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.
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Council Regulation (EC) No 2229/2003
of 22 December 2003
imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of silicon originating Russia
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community(1) (the basic Regulation), and in particular Article 9 thereof,
Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,
Whereas:
1. Procedure
1.1. Provisional measures
(1) The Commission, by Regulation (EC) No 1235/2003(2) ("provisional Regulation"), imposed provisional anti-dumping measures on imports of silicon originating in Russia. The measures were expressed as an ad valorem duty, ranging between 24,0 % and 25,2 %.
(2) It is recalled that the investigation of dumping and injury covered the period from 1 October 2001 to 30 September 2002 ("investigation period" or "IP"). The examination of the trends in the context of the investigation of injury analysis covered the period from 1 January 1998 to the end of the IP ("period under consideration").
1.2. Other measures in force
(3) Anti-dumping duties at an ad valorem rate of 49 % are currently in force on imports of silicon originating in the People's Republic of China ("China")(3). A review(4) of these measures pursuant to Article 11(2) of the basic Regulation is ongoing.
1.3. Subsequent procedure
(4) Following the imposition of provisional anti-dumping duties, parties received a disclosure of the facts and considerations on which the provisional Regulation was based. Some parties submitted comments in writing. All interested parties who so requested were granted an opportunity to be heard by the Commission.
(5) All parties were informed of the essential facts and considerations on the basis of which it was intended to recommend the imposition of definitive anti-dumping duties and the definitive collection of amounts secured by way of provisional duties. They were also granted a period within which to make representations subsequent to this disclosure.
(6) The oral and written comments submitted by the interested parties were considered and, where appropriate, the definitive findings have been changed accordingly.
(7) The Commission continued to seek all information it deemed necessary for the purpose of its definitive findings.
(8) In addition to the verification visits undertaken at the premises of the companies mentioned in recital 7 of the provisional Regulation, it should be noted that after the imposition of provisional measures, an on-spot visit was carried out at the premises of the following Community users:
- GE Bayer Silicones, Leverkusen, Germany,
- Raffinera Metalli Capra SpA, Brescia, Italy,
- Vedani Carlo Metalli SpA, Milan, Italy.
2. Product concerned and like product
2.1. Product concerned
2.1.1. Comments from exporting producers
(9) In recital 9 of the provisional Regulation, the product concerned was defined as silicon currently classifiable within CN code 2804 69 00. Some exporters queried whether silica fumes, which is a by-product of silica, obtained by a filtering process during the production of Silicon, is covered by the present proceeding.
(10) It should be noted that silica fumes does not correspond to the definition of the product concerned provided in recitals 9 and 10 of the provisional Regulation since it is merely a by-product from the production of silicon taking the form of a powder which is used as an additive to concrete. It is therefore confirmed that this product, covered under CN code ex 2811 22 00, is outside the scope of this proceeding.
(11) The definition of the product concerned was questioned by one Russian exporting producer, which claimed that there are in fact two distinct types of silicon, within this CN code, one type destined to metallurgical users and one type to chemical users. In support of this assertion, the Russian producer claimed that the two grades have significantly different chemical compositions based on their trace element content, with different end uses; that there are two distinct sets of users which do not compete with each other; and that there is no significant interchangeability between the two grades.
(12) The investigation showed that silicon is produced in different grades and that silicon sold on the EU market during the IP, whether produced by the Community industry or imported from Russia, contained more than 95 % silicon by weight. The grade of the silicon is determined in the first place by the percentage of silicon, and in the second place by the other elements, in particular the content of iron and calcium. For specialist users, particularly chemical users, the proportions of other trace elements determine whether the silicon is suitable for the intended use. Commonly, for a specialist user, silicon is manufactured to specific requirements and is only purchased following a lengthy verification process by the individual user. However, whilst the levels of trace elements are important to chemical users, this is not sufficient to conclude that it is a separate product from silicon consumed by metallurgical users.
(13) Evidence was also provided to show that the high-grade material was not sold exclusively to chemical users, and that chemical users also purchased certain quantities of the lower grade so-called metallurgical silicon. It is also generally accepted that users with lower quality requirements, in particular secondary metallurgical users, are able to use higher-grade silicon. For them the determinant factor is the price, as they are not willing to pay a premium for silicon of a higher grade than they require.
2.1.2. Comments of users
(14) A number of users also questioned the provisional determination of the product concerned. The submissions made were very similar to those received by exporting producers, particularly from the metallurgical users. All metallurgical users argued that there are three distinct product types i.e. chemical, and a split between standard, and low grade silicon for metallurgical users. However, all accepted that they are able to use any of these grades in their production process, although they prefer low grade silicon on cost grounds. These comments were repeated by a metallurgical users' organisation.
(15) One chemical user commented on the issue of product concerned. They confirmed that the silicon they purchase is tailor-made to their specifications and that the trace elements within the silicon are the most important factor for them.
2.1.3. Comments of the Community industry
(16) The Community industry agreed with the provisional determination that all grades of silicon falling under the definition used in recitals 9 and 10 of the provisional regulation should be considered as the product concerned. They also pointed out that many of the arguments are not raised within the context of the product concerned but within the context of the like product determination, and that the exporting producers are confusing these two issues.
2.1.4. Conclusion on product concerned
(17) Silicon is a product which is manufactured in several grades, depending firstly on the iron content, then on the calcium content, and thirdly on other trace elements. The production process employed in the EU and in Russia, i.e. electric arc furnaces, is largely the same.
(18) On the EU market, there are essentially two different user groups: chemical users mainly manufacturing silicones, and metallurgical users manufacturing aluminium. The metallurgical users can also be subdivided between primary aluminium producers and secondary (recycled) aluminium producers. However, all of the silicon used contains at least 95 % silicon by weight, and is typically 98 or 99 % silicon.
(19) Three grades of silicon have been identified, high grade, standard grade, and low grade, based upon the percentages of iron and calcium in the silicon. Between these grades, it was found that there is some overlap in the use made by different user groups. It is generally accepted that there are no physical, chemical, or technical characteristics which would prevent secondary aluminium producers from using any of the grades of silicon, or primary aluminium producers from using standard or high grade silicon. There is not the same degree of interchangeability in the opposite direction, although evidence has been submitted of chemical users being prepared to use standard and low grade silicon. The cost of the different grades usually determines which grade is used by which user group.
(20) The investigation has shown, as mentioned above, that all types of silicon, despite any differences in terms of the content of other chemical elements, have the same basic physical, chemical, and technical characteristics. Whilst the silicon can be used for different end uses, it was found that there was substitutability to a greater or lesser degree between the different grades and different uses.
(21) Therefore, the findings at recitals 9 and 10 of the provisional Regulation are definitively confirmed.
2.2. Like product
(22) After analysis, it was found that the claim concerning the product control number (PCN) addressed in recital 14 of the provisional Regulation concerned the price comparison of silicon originating in Russia with Community produced silicon and the correspondent injury elimination level. Differences in prices, quality and in uses do not necessarily lead to the conclusion that the products are not alike. Indeed, what matters in this context is whether the product types in question share the same basic physical and chemical characteristics and basic uses. The aforementioned differences will be taken into account in the comparison between export price and normal value and in determining e.g. price undercutting and the injury elimination level).
(23) One Russian exporting producer referred to the anti-dumping measures currently imposed on imports of silicon from China (see recital 3). In particular, they refer to recital 55 of Council Regulation (EC) No 2496/97 which states that "the quality of silicon metal from Russia and Ukraine is not comparable to European or Chinese silicon metal".
(24) In response to this point, it should first be pointed out that this statement was made in an investigation dating back more than five years, was based on information submitted in that investigation, and that this is not confirmed in the current investigation. In addition recital 55 of the above Regulation deals with the issue of causality only. It is clear from the wording that the product concerned, and indeed the like product from all sources, be it China, Russia, the EU, or the analogue country, i.e. Norway is silicon. This silicon forms one like product within the definition of Article 1(4) of the basic Regulation. Moreover, to the extent that quality differences can be found between different silicon producers in different countries, such differences can be adequately taken into consideration by means of adjustments. It is also noted that there were quality differences between the various types exported from Russia to the Community.
(25) Based on the above and based on the findings of the investigation, it is confirmed that the silicon produced in Russia and sold domestically as well as that exported to the Community, the silicon sold on the domestic market of the analogue country, and that manufactured and sold in the Community by the Community industry have the same basic physical and chemical characteristics. It is therefore concluded that all types of silicon forms one product family and are considered to be like products within the meaning of Article 1(4) of the basic Regulation.
3. Dumping
3.1. Normal value
(26) In the absence of any comments, the recitals 15 to 18 concerning market economy treatment of the provisional Regulation are confirmed.
(27) All exporting producers made submissions arguing that the cost of electricity used at provisional stage should be amended. They emphasised that their main electricity supplier is a majority private-owned company and that its low price can be explained by the presence of the world's largest complex of hydro-electric power stations, based on a natural comparative advantage. This matter was further investigated, but since it was found that electricity prices in Russia are regulated and that the price charged by this electricity supplier was very low, even when compared to other suppliers of electricity generated by hydro-electric power stations in the analogue country Norway and also in Canada, it was decided to reject this claim and to confirm the provisional decision to use the electricity price charged by another electricity supplier in Russia. This price was found to be in line with the lowest price of representative electricity producers found in the Community.
(28) In the absence of any other comments, the recitals 19 to 26 concerning the determination of normal value of the provisional Regulation are confirmed.
3.2. Export price
(29) All exporting producers have argued that the companies involved in selling the product concerned to the EC which are located outside Russia are related parties and that these companies should be treated as a single economic entity together with the companies located in Russia. They claimed that the export price used should therefore be the price charged by these related companies to the first independent customer in the EC.
(30) In the case of the importer located in the Community (United Kingdom), no new evidence was presented which demonstrated that it was related to the exporting producer. The claim was therefore rejected and the provisional approach of establishing the export price on the basis of the sales price to this importer was maintained.
(31) In the case of the importer in Switzerland, an on-spot verification visit was carried out following the imposition of the provisional measure and it was found that this company was indeed related to the exporting producer. For the sales made through this importer, the export price was therefore based on the price of this importer to the first unrelated customer in the Community.
(32) As regards the importer located in the British Virgin Islands, it should first be noted that according to Article 2(8) of the basic Regulation the export price to be used is the "price actually paid or payable when sold for export from the exporting country to the Community." In other words, in cases where the export transaction to the Community involves intermediaries, it is not the price ultimately charged to the Community customer which matters (and which is often not known to the exporting producer), but the price at which the product "leaves" the exporting country. This price may have to be substituted by subsequent resale prices in particular if the parties are related. Rusal has submitted new information which, in their view, proved such a relationship. However, it is considered that this relationship was not demonstrated in a conclusive and unambiguous way. In fact, there is no direct shareholding between the Rusal and the company in the British Virgin Islands and structures are complex and non-transparent. According to the company, the link is a result of indirect shareholding but no verifiable documentation to this effect was submitted. Moreover, according to the Rusal the company in the British Virgin Islands does not perform any economic activity in the sale or distribution of the exported products but is merely a letter box company. In other words, this is not really a sale via a third party. Rather the British Virgin Islands company is an addressee for unclear accounting purposes. There was no way to verify the true role of this company located in the British Virgin Islands or follow with sufficient certainty the payment flows. It was consequently decided to maintain the provisional approach and to establish the export price on the basis of the sales price to the company in the British Virgin Islands.
3.3. Comparison
(33) One exporting producer again claimed an adjustment for physical characteristics based on the fact that the average grade of silicon sold on the Russian market is of higher quality and therefore involves higher production costs. However, the company failed to present new evidence demonstrating that there was a consistent difference in quality between the product types sold on the domestic market and those exported to the Community. Therefore, the provisional approach was maintained and no adjustment for physical differences was made.
(34) Two companies repeated their claims concerning an adjustment for quantities and for level of trade. The request for an adjustment for quantities could not be taken into account since the company was not able to demonstrate that discounts or rebates had been specifically given for the purchase of different quantities and since these differences in quantity had already been taken into account by the level of trade adjustment for different types of customers granted at the provisional stage. With respect to the request for an additional adjustment for level of trade, the company was not able to demonstrate that the adjustment made at the provisional stage had been insufficient and therefore no additional adjustment could be granted.
3.4. Dumping margins
(35) In the absence of any comments, the determination of the dumping margin, as described in recitals 29 and 30 of the provisional Regulation are confirmed.
(36) The definitive dumping margins, expressed as a percentage of the CIF import price at the Community border, are as follows:
TABLE
4. Injury
4.1. Community industry
(37) Since no comments were received regarding the definition of the Community industry, the contents and provisional conclusions of recitals 33 and 34 of the provisional Regulation are hereby confirmed.
4.2. Consumption of silicon in the Community
(38) In the absence of any new information on consumption, the provisional findings as described in recitals 35 and 36 of the provisional Regulation are confirmed.
4.3. Imports of silicon into the Community
4.3.1. Volume and market share of imports
(39) In the absence of any new information either on the imports of silicon into the Community or on their market share, the provisional findings as described in recitals 37 to 43 of the provisional Regulation are confirmed.
4.3.2. Price undercutting and price depression
(40) Undercutting calculations were revised to reflect adjustments for level of trade and quality. These adjustments were established on the basis of verified information and correspond to a reasonable estimate of the market value of the differences.
(41) Definitive undercutting margins showed that undercutting was 10,2 %.
(42) The existence and the level of undercutting should be seen in the light of the fact that prices were depressed. Prices decreased significantly over the period under consideration (- 16 %), to the extent that they were not covering the Community industry's full costs of production during the IP.
4.4. Economic situation of the Community industry
(43) The two Russian exporting producers claimed that the Community industry did not suffer material injury as most of the injury indicators showed positive developments. In particular, the exporting producers pointed to improvements for production, capacity, capacity utilisation, sales volume in the Community, market share, stocks, employment, and productivity over the period under consideration.
(44) However for the injury indicators, and as outlined in recitals 71 and 72 of the provisional Regulation, a closer examination showed that the main positive developments for the Community industry took place between 1998 and 2000. Between 2000 and the IP, nearly all indicators either rose only slightly, remained stagnant, or indeed fell. It is during this period that the material injury suffered by the Community industry is most apparent.
(45) It should be noted that as indicated in recital 72 of the provisional Regulation the relatively good performances of the Community industry up to 2000 was directly attributed to decisions taken by the Community industry to invest in additional community production facilities. Indeed, during that period the Community industry production, production capacity, sales volume, market share, employment and productivity increased. Profitability was set at 5 % of the net sales value.
(46) Subsequently, and mirroring the increased presence of low-priced dumped imports from Russia, the situation of the Community industry deteriorated. Market share, cash flow, investments, and return on investments saw important decreases.
(47) Moreover, the trend of other injury indicators, and in particular the decrease in profitability and sales prices suffered by the Community industry over the period under consideration led to the conclusion that the Community industry suffered material injury.
4.5. Conclusion on injury
(48) For these reasons, and in the absence of any new information that would necessitate a revision of the finding that the Community industry suffered material injury during the IP, in particular for prices and profitability, the arguments raised by the Russian exporting producers are rejected. The findings and the conclusion set out in recitals 71 to 73 of the provisional Regulation are confirmed.
5. Causation
(49) One Russian exporting producer argued that even if the finding of material injury is confirmed, this injury was not caused by the Russian imports of silicon. A number of other factors were alleged to be the true cause of the injury, if any, suffered by the Community industry. Other third countries with a much larger share of imports compared with Russia, Community industry's self-inflicted injury, the export performance of the Community industry, imports of silicon by the community industry itself, and the differences in the markets for chemical and metallurgical silicon were all cited as explanations for any injury suffered by the Community industry. One Russian producer also alleged that there was a 16 % difference between prices of the Community industry and Russian prices during the IP, and that such a large difference showed that there is no price competition between the silicon from the two sources on the Community market.
5.1. Imports from other third countries
(50) As outlined in recital 98 of the provisional Regulation, imports from a number of other third countries were made at much higher volumes than those from Russia. However, with the exception of China, imports from each of these countries actually fell in volume between 2000 and the IP i.e. when the Community industry saw a downturn in its economic situation. Furthermore, the prices of these other imports were in all cases higher than those of the Russian imports, and where they did undercut the Community industry's prices, the price differential was very limited.
(51) One Russian exporting producer claimed that the information from Eurostat could not be relied upon as no account is taken of differences in product mix. They pointed out that there are important price differences between the predominantly lower quality silicon exported from Russia, and the higher quality silicon from other third countries. Rather, they claimed that the prices actually paid by users for silicon from different sources should be used when comparing prices.
(52) This producer did not adduce any evidence in support of its claim. Moreover, due to the lack of substantial data from users as to the price they paid for silicon from other third countries, this price comparison could not be made. The information available from Eurostat represents in these circumstances the best source for establishing prices of silicon from third countries. In relation to the information available for the parallel expiry review against China, it emerged that the average undercutting margin found when prices were compared on a grade-by grade basis was in line with the margin found when Eurostat average import price was compared to Community industry average price.
(53) Furthermore, it should also be noted that for a fair comparison of import prices, Eurostat data was used in all cases. For Russia, where verified information was available for the IP, the true price of the imports was actually slightly lower than that recorded on Eurostat.
5.2. Self-inflicted injury
(54) It was claimed that the injury suffered by the Community industry was primarily due to increasing costs incurred for new production capacities in an effort to increase market share. To this end it was claimed that the Community industry has the highest average costs of production (COP) in the world. This claim was based upon a comparison of the verified cost of production for the Community industry and Russian producers in this proceeding against published costs for other third countries. However, the cost elements included in the published figures were not clearly identified and therefore there was no evidence to indicate that these COP could be compared with the COP verified during the investigation. Typically it appeared that these published figures are based on manufacturing cost only, and do not include essential cost elements such as SG & A. In addition, it is interesting to note that the Russian producer did not provide any corresponding published data for Community producers. On this basis it is considered that this claim could not be addressed and the arguments raised by the Russian exporter were rejected. In support of this approach, it was found that the verified COP in the analogue country, Norway, was indeed higher than that provided by the Russian producer. When adjusted to full costs, the verified COP in Norway was found to be consistent to that of the Community industry.
(55) Nevertheless, even if the costs of the Community industry were comparatively higher, this fact would not break in itself the link between the low-priced dumped imports and the injury suffered by the Community industry. As outlined at recital 83 of the provisional Regulation, had prices not fallen between the year 2000 and the IP, then the Community industry would have made a profit of 1,7 %, as opposed to an actual loss of 2,1 %.
5.3. Exports by the Community industry
(56) It was claimed that the reduction in export sales by the Community industry would have impacted on the profitability of their EU sales. However, no evidence to support this claim was submitted.
(57) The total fall in export sales between 1998 and the IP represented only 2,3 % of all Community industry sales during the IP. Their impact, if any, on the prices and profitability of the Community industry on the EU market can, therefore have been of only a minor nature. It can also reasonably be assumed that the reduction in export is partly due to the demand for Community produced silicon during the IP.
5.4. Imports of silicon by the Community industry
(58) One Russian producer queried the conclusion at recital 85 of the provisional Regulation that companies related to the Community industry, and which purchase silicon, have taken such decision on their own behalf and without influence from the Community industry. In support of this point, it was claimed that these related companies were not allowed to express their opinion on the proceeding. This was said to prove that these companies are indeed controlled by the Community industry.
(59) The fact that the companies related to the Community industry do not make comments opposing anti-dumping measures in this proceeding does not mean that they are not free to source their own raw materials based on financial considerations. As these companies were seen to buy silicon from the Community industry, from Russia, and indeed from any other source as they wished, the conclusion at recital 85 of the provisional Regulation are therefore confirmed.
5.5. Differences between the markets for chemical and metallurgical silicon
(60) It was alleged that the problems faced by the Community industry from 2000 onwards were due to a downturn in the demand for chemical grade silicon caused by a downturn in demand for the products of this user industry. It was claimed that the Community industry sells a higher proportion of its silicon to these chemical users than it does to metallurgical users, whilst the opposite is true for Russian exporting producers. Therefore, as Russian silicon does not compete with Community produced silicon in the chemical market, any problems faced by the Community industry cannot be attributed to Russian imports.
(61) The table below outlines the trends in prices and volumes for Community industry sales of silicon to their chemical customers.
Community industry sales to chemical customers
TABLE
Source:
Community industry.
(62) From this table, it can be seen that over the period under consideration, the sales of silicon sold to chemical users increased by 42 % in volume but fell by 13 % in terms of average price. This compares with a 57 % increase in volume and a 16 % fall in prices for all sales of silicon over the period under consideration (see Tables 8 and 9 of the provisional Regulation).
(63) During the period between 2000 and the IP, when the injury trend showed a particular downturn in respect of prices and profitability, sales to chemical users fell by around five thousand tonnes (- 7,0 %), but average prices increased by EUR 14 per tonne (+ 1,1 %). For all sales the comparable figures show an increase of around three thousand tonnes (+ 2,1 %) whilst average prices fell by EUR 46 per tonne (- 3,7 %).
(64) Therefore, there are no reasons to believe that the injury suffered by the Community industry was caused by a downturn in sales to chemical customers. In fact, given the nature of the injury suffered, the reverse is true.
(65) Accordingly, the argument that it is the trend for the sales of the Community industry to chemical customers that was the real cause of the injury suffered during the IP is rejected.
5.6. Price competition
(66) Concerning the price difference between the silicon produced in the Community and the silicon imported from Russia, it is confirmed that this difference is not 16 %, as claimed by a Russian exporter, but 11 % on average during the IP (see recital 46 of the provisional Regulation). This difference existed despite Community industry price falls of 7 % between 2001 and the IP. This is seen as a clear indication of the effect that Russian prices had on those of the Community industry. To claim that the price undercutting is so large that it cannot have been the cause of the injury to the Community industry would be counter intuitive.
(67) Indeed, the investigation showed that large quantities of silicon are sold by both the Community industry and the Russian exporting producers to the same customers or customers operating in the same sector. It is also clear that the low level of the Russian price was used as a lever by these users when negotiating prices with the Community industry.
5.7. Conclusion on causation
(68) In light of the above, the arguments raised by the Russian exporting producers are rejected and the findings and conclusions set out in recitals 101 and 102 of the provisional Regulation are confirmed.
6. Community interest
(69) Following the provisional determination, that the imposition of measures was not against the Community interest, interested parties were invited to come forward and to cooperate in the proceeding. Comments were received from four users and a users' association which had cooperated during the provisional stage of the proceeding. In addition five users and one users' association which did not cooperate during the provisional stage of the proceeding made comments on the provisional findings. No importers of silicon made any comments. Three Community suppliers of raw materials to the Russian producers had already submitted comments at the provisional stage.
(70) Those comments which were made following the publication of the provisional Regulation concerned only the need to differentiate between chemical and metallurgical silicon i.e. on issues concerning the product concerned and the like product. The users submitted no comments regarding the impact of any measures either on their costs or on their profitability, nor provided the necessary information to allow such an assessment to be made.
(71) However, following on-spot visits to users, it was found that whilst these users are opposed to measures as this will increase their costs, they were generally in agreement with the methods we employed in our analysis. It is likely that the measure will have an impact on users. The information available indicates that duties will increase the costs for metallurgical users in the order of EUR 11 per tonne of finished product, i.e. by 0,8 %.
(72) For the Community suppliers of raw materials, even it were accepted that the imposition of measures may have some negative consequences on their turnover and profitability. no evidence was submitted that would lead to the conclusion that this impact would be such as to outweigh the expected benefits to the Community industry.
(73) Therefore, there was no new information provided at all that could lead to a finding that the imposition of definitive measures would be against the Community interest. Accordingly, the conclusion reached in recital 118 of the provisional Regulation is definitively confirmed.
7. Definitive measures
(74) In view of the conclusions reached regarding dumping, injury, causation and Community interest, it is considered that definitive anti-dumping measures should be imposed in order to prevent further injury being caused to the Community industry by dumped imports from Russia.
7.1. Injury elimination level
(75) A number of claims were made regarding the methodology used for calculating the injury elimination level at the provisional stage.
7.1.1. PCN Table
(76) As stated in recital 14 of the provisional Regulation, it was claimed that the product control number (PCN) table which identifies all types of silicon did not include sufficient details of the chemical composition of the different types of silicon and that it was therefore not possible to make a proper comparison of the different grades of silicon. It was thus proposed to amend the PCN table to clearly identify the types imported from Russia as compared to those sold by the Community industry.
(77) One company claimed that an extra grade should be included to cover silicon with an iron content of above 0,8 %. Whilst it may be that silicon with high levels of iron command lower prices on the market, no evidence was submitted to show that there was a clear market difference between silicon containing more than 0,5 % iron and that containing more than 0,8 %. As any price differences resulting from these different iron contents can, in any case be addressed by way of a price adjustment, which was indeed given, this claim is rejected.
(78) The other Russian exporting producers requested two changes to the PCN Table. They firstly requested that a new grade be defined where the trace elements are the main determining factor. It was claimed that without this adjustment, silicon sold to metallurgical users could be unfairly compared with silicon sold to chemical users. They also requested that the silicon containing exactly 0,5 % iron be classified as low quality instead of standard quality as in the current PCN table.
(79) The acceptance of the first request would not have led to a more accurate PCN Table, but would instead have resulted in poorly defined criteria, with a risk that the interested parties would have a degree of freedom in allocating sales to particular PCNs. Such a freedom would undermine the reliability of the information provided by PCN and thus on the reliability that could be placed on the injury elimination level. There is also no evidence indicating that maintaining the current PCN structure would lead to erroneous or less accurate findings. For example an underselling calculation based on standard and low quality silicon only would result in margins which changed by at most 0,2 %. For these reasons, the claim is rejected.
(80) As to the second claim, again no evidence to support this change has been provided. Indeed there are indications that silicon containing 0,5 % iron is seen as the standard grade by users. Accordingly, no change to the PCN Table was considered necessary.
7.1.2. Profit margin
(81) It was provisionally found that a profit margin of 6,5 % on total turnover could be regarded as an appropriate minimum which the Community industry could reasonably expect to obtain in the absence of injurious dumping. It was claimed that this margin was too high and that a margin of around 3 % would be more appropriate.
(82) The request to use a 3 % margin is not borne out by the facts. Indeed, a profit of 6,5 % is in line with the profits achieved by the Community industry when fair market conditions prevailed on the Community market, i.e. between 1998 and 2000. Moreover, given the level of the dumping margins found and the volume of imports from Russia, it is also likely that the Community industry would have achieved profits of at least this level during the IP.
7.1.3. Quality adjustment
(83) One Russian producer claimed that the silicon produced at one of its plants was of a lower quality than that produced at the other plant due to differences in the production process. Accordingly it was claimed that the lower quality silicon should be adjusted to allow a fair comparison with the prices of the Community industry. The adjustment claimed was the difference in the average cost of production between the two plants.
(84) It is indeed accepted that there is a quality difference between the two plants. However, for any adjustment to be merited, it should be demonstrated that these differences impact on the prices that can be achieved in the market, in this case the EU. A comparison was, therefore made on a grade-by-grade basis to see if there was a consistent difference in the sales prices achieved between the two plants. For the high quality silicon, no sales were made of silicon from the lower quality plant, and no adjustment was necessary. For the standard grade, a clear price difference was observed, and an adjustment of 4 % was made for sales of this quality from the relevant plant. For the low quality silicon, no price difference was found and thus no adjustment was warranted.
(85) The second Russian producer claimed that all of its silicon was of such low quality, that it could not be directly compared even with the prices of low-quality silicon produced by the Community industry.
(86) It is again accepted that the iron level in particular is higher in the silicon produced by this producer compared to that produced by both the Community industry and by the other Russian producer. In order to calculate the quality effect, if any, on the prices achieved by this producer on the EU market, a comparison was made with the average prices achieved by the other Russian producer, again on a grade-by-grade basis.
(87) The results of this comparison showed that an adjustment to the prices of low-quality silicon from this Russian producer should be granted so that it could be compared with the prices of the low-quality silicon produced by the Community industry.
7.1.4. Level of trade adjustment
(88) The Russian producers claimed a price adjustment to allow for different levels of trade for their EU sales. It was found that one Russian producer sold all of its silicon via a trader in the British Virgin Islands. The second producer sold via a related trader in Switzerland, via an unrelated trader in the EU, and directly to end users. The Community industry sold almost all of its silicon directly to end-users.
(89) In order to determine if a level of trade adjustment was warranted, all sales of the same grade from the same producer via the different sales channels were analysed to see if there was a consistent price differential. As a result of this analysis, a level of trade adjustment was granted for all sales via an unrelated trader.
7.2. Form and level of the definitive duty
(90) In accordance with Article 9(4) of the basic Regulation, definitive anti-dumping measures should be imposed at the level of the dumping or injury margins found, whichever are the lower. These measures, as with the provisional measures, should take the form of an ad valorem duty.
7.3. Definitive collection of the provisional duty
(91) In view of the magnitude of the dumping margins found for the exporting producers in Russia and in light of the level of the injury caused to the Community industry, it is considered necessary that the amounts secured by way of provisional anti-dumping duty imposed by the provisional Regulation, i.e. Commission Regulation (EC) No 1235/2003, should be definitively collected to the extent of the amount of definitive duties imposed. Where the definitive duties are higher than the provisional duties, only the amounts secured at the level of the provisional duties should be definitively collected.
(92) Any claim requesting the application of these individual company anti-dumping duty rates (e.g. following a change in the name of the entity or following the setting up of new production or sales entities) should be addressed to the Commission forthwith with all relevant information, in particular any modification in the company's activities linked to production, domestic sales and export sales associated with e.g. that name change or that change in the production and sales entities. If appropriate, the Regulation will accordingly be amended by updating the list of companies benefiting from individual duties.
7.4. Undertakings
(93) Subsequent to the imposition of provisional measures, and after disclosure of the definitive findings, one exporting producer in Russia offered a price undertaking in accordance with Article 8(1) of the basic Regulation.
(94) The exporting producer concerned is a producer of different types of products which can be sold together. This raises a potential risk of cross-compensation i.e. that any undertaking prices would be formally respected but that prices for products other than the one concerned would be lowered when sold together with the product concerned. All this would render the commitment to respect a minimum price for silicon easy to circumvent and very difficult to monitor effectively.
(95) For the reasons set out above, it was therefore concluded that the undertakings offered subsequent to the disclosure of the definitive findings could not be accepted as such in their current form. The interested parties were informed accordingly and the deficiencies of the undertaking offered were disclosed in detail to the exporters concerned,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of silicon with a silicon content less than 99,99 % by weight, falling within CN code 2804 69 00, originating in Russia.
2. The rate of the definitive anti-dumping duty applicable for the product produced by the companies named below and originating in Russia shall be as follows:
TABLE
3. Unless otherwise specified, the provisions in force concerning customs duties shall apply.
Article 2
The amounts secured by way of provisional anti-dumping duties pursuant to Commission Regulation (EC) No 1235/2003 on imports of silicon with a silicon content less than 99,99 % by weight, falling within CN code 2804 69 00, originating in Russia shall be definitively collected in accordance with the rules set out below.
The amounts secured in excess of the definitive rate of anti-dumping duties shall be released. Where the definitive duties are higher than the provisional duties, only the amounts secured at the level of the provisional duties shall be definitively collected.
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
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Commission Regulation (EC) No 223/2003
of 5 February 2003
on labelling requirements related to the organic production method for feedingstuffs, compound feedingstuffs and feed materials and amending Council Regulation (EEC) No 2092/91
(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 2092/91 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs(1), as last amended by Commission Regulation (EC) No 473/2002(2), and in particular Article 1(3) and the second indent of Article 13 thereof,
Whereas:
(1) Under Article 1(3) of Regulation (EEC) No 2092/91 a Regulation must be adopted providing for labelling requirements as well as inspection requirements and precautionary measures for feedingstuffs, compound feedingstuffs and feed materials, as far as these requirements are related to the organic production method.
(2) The petfood market and the market in feed for fur animals are separate from the market in feedingstuffs for other farmed livestock. Moreover, the labelling, production and inspection rules provided for in Articles 5, 6, 8 and 9 respectively of Regulation (EEC) No 2092/91 do not apply to aquaculture animals or aquaculture products. This Regulation should therefore apply only to feedingstuffs for organically-reared livestock, excluding petfood, feed for fur animals and feed for aquaculture animals.
(3) The specific measures on labelling feedingstuffs for organically-reared livestock must allow producers to identify feed that may be used in accordance with the provisions on the organic production method. The indication referring to the organic production method should not be presented in a way that draws more attention to it than to the description or the name of the feedingstuff referred to respectively in Council Directive 79/373/EEC of 2 April 1979 on the marketing of compound feedingstuffs(3), as last amended by Directive 2002/2/EC of the European Parliament and of the Council(4), and in Council Directive 96/25/EC of 29 April 1996 on the circulation and use of feed materials, amending Directives 70/524/EEC, 74/63/EEC, 82/471/EEC and 93/74/EEC and repealing Directive 77/101/EEC(5), as last amended by Directive 2001/46/EC of the European Parliament and of the Council(6).
(4) The percentage of organically-produced feed materials, the percentage of in-conversion products and the total percentage of feedingstuffs of agricultural origin should moreover be indicated by weight of dry matter so that producers may comply with the daily rationing rules laid down in Part B of Annex I to Regulation (EEC) No 2092/91. Part B of Annex I to that Regulation should therefore be amended also.
(5) A number of trade marks of products intended for animal feed which do not meet the requirements of Regulation (EEC) No 2092/91 carry indications which may be considered by operators to be a reference to the organic production method. Provision should be made for a transitional period to allow holders of those trade marks to adapt to the new rules. However, this transitional period should be granted only to trade marks bearing the above indications where an application for registration was made before the publication of Council Regulation (EC) No 1804/1999 of 19 July 1999 supplementing Regulation (EEC) No 2092/91 to include livestock production(7), and where the operator has been duly informed of the fact that the products have not been produced by the organic production method.
(6) The minimum inspection requirements and precautionary measures applicable to units preparing feedingstuffs require the implementation of special measures, which should be incorporated into Annex III to Regulation (EEC) No 2092/91.
(7) The principle of separating all equipment used in units preparing organic compound feedingstuffs from equipment used in the same unit for conventional compound feedingstuffs is considered to be an effective means of preventing the presence of products and substances not allowed by the organic production method. That principle should hence be incorporated as a provision into Annex III to Regulation (EEC) No 2092/91. The immediate implementation of that provision however is assumed to have an important economic impact on the compound feedingstuffs industry in several Member States and consequently on the organic farming sector. For that reason, and in order to allow the organic sector to adapt to the new requirements of separated production lines, a possibility of derogation to this provision should be foreseen for a period of five years. Moreover, this issue has to be re-examined thoroughly in the near future on the basis of further information and experience gained.
(8) Regulation (EEC) No 2092/91 should therefore be amended.
(9) The measures provided for in this Regulation are in accordance with the opinion of the Committee referred to in Article 14 of Regulation (EEC) No 2092/91,
HAS ADOPTED THIS REGULATION:
Article 1
This Regulation shall apply to the feedingstuffs, compound feed and feed materials referred to in Article 1(1)(c) of Regulation (EEC) No 2092/91, where these products carry or are intended to carry references to the organic production method. This Regulation shall not apply to pet foods, feed for fur animals or feed for aquaculture animals.
Article 2
For the purpose of this Regulation, the definitions laid down in Article 4 of Regulation (EEC) No 2092/91 shall apply.
In addition:
1. "feed materials from the organic production method" shall mean organically-produced feed materials or prepared from such materials,
2. "feed materials from products in conversion to organic farming" shall mean in-conversion feed materials or products prepared from such materials.
Article 3
1. The labelling, advertising and commercial documentation relating to the products referred to in Article 1 may refer to organic production methods only where:
(a) the products have been produced, prepared or imported by an operator who is subject to the inspection measures laid down in Articles 8 and 9 of Regulation (EEC) No 2092/91;
(b) the products and the materials of which they are composed and any other substance used in the preparation of those products have not been subjected to treatments involving the use of ionising radiation;
(c) the conditions referred to in points 4.12, 4.13, 4.14, 4.16, 4.17 and 4.18 of Part B of Annex I to Regulation (EEC) No 2092/91 are met as required;
(d) feed materials from the organic production method do not enter simultaneously with the same feed materials produced by conventional means into the composition of the product;
(e) feed materials from products in conversion to organic farming do not enter simultaneously with the same feed materials produced by conventional means into the composition of the product.
2. Without prejudice to Articles 4 and 5, the reference to the organic production method referred to in paragraph 1 shall be made solely by the following indication:
(a) "organically-produced", where at least 95 % of the product's dry matter is comprised of organically-produced feed material(s);
(b) "may be used in organic production in accordance with Regulation (EEC) No 2092/91" in the case of products comprising variable quantities of feed materials from the organic production method and/or feed materials from products in conversion to organic farming and/or conventional materials.
Article 4
1. The indication referred to in Article 3(2):
(a) must be separate from the wording referred to in Article 5 of Directive 79/373/EEC or in Article 5(1) of Directive 96/25/EC;
(b) must not be presented in a colour, format or character font that draws more attention to it than to the description or name of the animal feedingstuff referred to in Article 5(1)(a) of Directive 79/373/EEC or Article 5(1)(b) of Directive 96/25/EC respectively;
(c) must be accompanied, in the same field of vision, by an indication by weight of dry matter referring:
(i) to the percentage of feed material(s) from the organic production method,
(ii) to the percentage of feed material(s) from products in conversion to organic farming,
(iii) to the total percentage of animal feed of agricultural origin,
(d) must be accompanied by the name and/or the code number of the inspection body or authority to which the operator who carried out the final preparation is subject;
(e) must be accompanied by a list of names of feed materials from the organic production method;
(f) must be accompanied by a list of names of feed materials from products in conversion to organic farming.
2. The indication referred to in Article 3(2) may be also accompanied by a reference to the requirement to use the feedingstuffs in accordance with the rules laid down in Part B of Annex I to Regulation (EEC) No 2092/91 on the composition of daily rations.
3. Member States shall decide on the name and/or code number for the inspection body or authority referred to in paragraph 1(d) and shall notify the Commission accordingly.
Article 5
The trade marks and sales descriptions bearing an indication referred to in Article 2 of Regulation (EEC) No 2092/91 may be used only if at least 95 % of the product's dry matter is comprised of feed material from the organic production method.
Article 6
Notwithstanding Articles 3, 4 and 5, the trade marks bearing an indication referred to in Article 2 of Regulation (EEC) No 2092/91 may still be used until 1 July 2006 in the labelling and advertising of the products referred to in Article 1 which do not comply with this Regulation if the following conditions are met.
(a) registration of the trade mark was applied for before 24 August 1999 and the trade mark is in conformity with Council Directive 89/104/EEC(8); and
(b) the trade mark is already reproduced with a clear, prominent, and easily readable indication that the products are not produced according to the organic production method as laid down in Regulation (EEC) No 2092/91.
Article 7
Part B of Annex I and Annex III to Regulation (EEC) No 2092/91 are amended in accordance with the Annex hereto.
Article 8
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
It shall apply from 6 August 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 February 2003. | [
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COMMISSION REGULATION (EEC) No 2338/91 of 1 August 1991 re-establishing the levying of customs duties on products falling within CN code 9105, originating in China, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3831/90 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3831/90 of 20 December 1990 applying generalized tariff preferences for 1991 in respect of certain industrial products originating in developing countries (1), as amended by Regulation (EEC) No 3835/90 (2), and in particular Article 9 thereof,
Whereas, pursuant to Articles 1 and 6 of Regulation (EEC) No 3831/90, suspension of customs duties shall be accorded to each of the countries or territories listed in Annex III other than those listed in column 4 of Annex I within the framework of the preferential tariff ceilings fixed in column 6 of Annex I;
Whereas, as provided for in Article 7 of that Regulation, as soon as the individual ceilings in question are reached at Community level, the levying of customs duties on imports of the products in question originating in each of the countries and territories concerned may at any time be re-established;
Whereas, in the case of products falling within CN code 9105, originating in China, the individual ceiling was fixed at ECU 5 182 000; whereas, on 23 April 1991, imports of these products into the Community originating in China reached the ceiling in question after being charged thereagainst; whereas, it is appropriate to re-establish the levying of customs duties in respect of the products in question against China,
HAS ADOPTED THIS REGULATION:
Article 1
As from 5 August 1991, the levying of customs duties, suspended pursuant to Regulation (EEC) No 3831/90, shall be re-established on imports into the Community of the following products originating in China:
Order No CN code Description 10.1180 9105 Other clocks
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 1 August 1991. | [
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COMMISSION REGULATION (EEC) No 2969/93 of 28 October 1993 re-establishing the levying of customs duties on products of category 5 (order No 40.0050), originating in Brazil, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3832/90 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3832/90 of 20 December 1990 applying generalized tariff preferences for 1991 in respect of textile products originating in developing countries (1), extended for 1993 by Regulation (EEC) No 3917/92 (2), and in particular Article 12 thereof,
Whereas Article 10 of Regulation (EEC) No 3832/90 provides that preferential tariff treatment shall be accorded for 1993 for each category of products subjected in Annexes I and II thereto to individual ceilings, within the limits of the quantities specified in column 8 of Annex I and column 7 of Annex II, in respect of certain or each of the countries or territories of origin referred to in column 5 of the same Annexes;
Whereas Article 11 of the abovementioned Regulation provides that the levying of customs duties may be re-established at any time in respect of imports of the products in question once the relevant individual ceilings have been reached at Community level;
Whereas, in respect of products of category 5 (order No 40.0050), originating in Brazil, the relevant ceiling amounts to 1 510 000 pieces;
Whereas on 20 August 1993 imports of the products in question into the Community, originating in Brazil, countries covered by preferential tariff arrangements, reached and were charged against that ceiling;
Whereas it is appropriate to re-establish the levying of customs duties for the products in question with regard to Brazil,
HAS ADOPTED THIS REGULATION:
Article 1
As from 1 November 1993 the levying of customs duties, suspended pursuant to Regulation (EEC) No 3832/90, shall be re-established in respect of the following products, imported into the Community and originating in Brazil:
40.0050 5 (1 000 pieces) 6101 10 90
6101 20 90
6101 30 90
6102 10 90
6102 20 90
6102 30 90
6110 10 10
6110 10 31
6110 10 35
6110 10 38
6110 10 91
6110 10 95
6110 10 98
6110 20 91
6110 20 99
6110 30 91
6110 30 99 Jerseys, pullovers, slipovers, waistcoats, twinsets, cardigans, bed jackets and jumpers (other than jackets and blazers), anoraks, windcheaters, waister jackets and the like, knitted or crocheted
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 October 1993. | [
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COMMISSION REGULATION (EC) No 284/2008
of 27 March 2008
registering certain names in the Register of protected designations of origin and protected geographical indications (Lingot du Nord (PGI), Cipolla Rossa di Tropea Calabria (PGI), Marrone di Roccadaspide (PGI))
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (1), and in particular the first subparagraph of Article 7(4) thereof,
Whereas:
(1)
In accordance with the first subparagraph of Article 6(2) and pursuant to Article 17(2) of Regulation (EC) No 510/2006, France’s application to register the name ‘Lingot du Nord’ and Italy’s applications to register the names ‘Cipolla Rossa di Tropea Calabria’ and ‘Marrone di Roccadaspide’ were published in the Official Journal of the European Union (2).
(2)
As no objection under Article 7 of Regulation (EC) No 510/2006 has been received by the Commission, these names should be entered in the Register,
HAS ADOPTED THIS REGULATION:
Article 1
The names in the Annex to this Regulation are hereby entered in the Register of protected designations of origin and protected geographical indications.
Article 2
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 March 2008. | [
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