16.2.2011

Official Journal of the European Union

C 49/2

DECISION OF THE BUREAU OF THE EUROPEAN PARLIAMENT

of 13 December 2010 and 14 February 2011

amending the Implementing Measures for the Statute for Members of the European Parliament

2011/C 49/02

THE BUREAU OF THE EUROPEAN PARLIAMENT,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 223(2) thereof,

Having regard to the Statute for Members of the European Parliament (1),

Having regard to Rules 8 and 23 of the Rules of Procedure of the European Parliament,

Whereas:

(1)

Under the Implementing Measures for the Statute for Members of the European Parliament (2) (‘the Implementing Measures’), the Bureau is required, where appropriate, to index-link the amount of the parliamentary assistance allowance annually on the basis of the joint index established by Eurostat, by agreement with the national statistical offices of the Member States, pursuant to Article 65 of the Staff Regulations of Officials of the European Union, laid down in Regulation (EEC, Euratom, ECSC) No 259/68 (3). That index-linking may be backdated to the July of the year to which the index relates. This procedure is designed to ensure that the parliamentary assistance allowance remains in step with changes in the salaries of accredited assistants. By Regulation (EU, Euratom) No 1190/2010 (4), the Council amended Regulation (EU, Euratom) No 1296/2009 (5), taking account of the judgment of the Court of Justice in Case C-40/10 (6), and adjusted with effect from 1 July 2009 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto. It is therefore necessary to adjust the parliamentary assistance allowance accordingly, as from 14 July 2009. As a consequence of that change, the increased amount of the parliamentary assistance allowance agreed in Amending Budget No 1 of the European Union for the financial year 2010 (7) should also be adjusted, and the new figure should apply from the same date as the original increase, namely 1 May 2010. By Regulation (EU) No 1239/2010 (8), the Council adjusted with effect from 1 July 2010 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto. It is therefore necessary to adjust the parliamentary assistance allowance accordingly, as from 1 July 2010.

(2)

The Implementing Measures also provide that the Bureau may index-link Members’ travel allowances, the general expenditure allowance and the subsistence allowance, up to a maximum increase equal to the annual inflation rate in the European Union in October of the previous year, as published by Eurostat. The inflation rate between 1 November 2009 and 31 October 2010 as notified by Eurostat on 16 November 2010 was 2,3 %. The new figures should apply from 1 January 2011,

HAS ADOPTED THIS DECISION:

Article 1

The Implementing Measures are amended as follows:

in Article 15, point (c) is replaced by the following:

‘(c)	in the event of travel by car: EUR 0,50/km, plus the cost of any ferry crossing, or similar transport, required.’;

in Article 20(1), point (a) is replaced by the following:

‘(a)	for the part of the journey between 0 and 50 km: EUR 22,51;’;

Article 22 is amended as follows:

(a)	paragraph 1 is replaced by the following: ‘1. The maximum annual amount which may be reimbursed in respect of travel expenses incurred in the cases referred to in Article 10(1), point (b) shall be EUR 4 243.’;

(b)

the first subparagraph of paragraph 3 is replaced by the following:

‘3. The maximum annual amount which may be reimbursed in respect of the travel expenses actually incurred by committee or subcommittee chairs travelling to attend conferences or events which deal with a matter of European interest falling within the sphere of responsibility of their committee or subcommittee and which have a parliamentary dimension shall be EUR 4 243. Such participation shall require prior authorisation from the President of Parliament, following verification that appropriations up to the maximum amount indicated above are available.’;

4.	in Article 24, paragraph 2 is replaced by the following: ‘2. If the official activity takes place on the territory of the Community, a Member shall receive a lump-sum allowance of EUR 304.’;

5.	in Article 26, paragraph 2 is replaced by the following: ‘2. The monthly amount of the allowance under Article 25 shall be EUR 4 299.’;

in Article 33, paragraph 4 is replaced by the following:

‘4. The maximum monthly amount defrayable in respect of all the personal staff referred to in Article 34 shall be EUR 18 189. With effect from 1 May 2010, that amount shall be EUR 19 689. With effect from 1 July 2010, that amount shall be EUR 19 709.’.

Article 2

1. This Decision shall enter into force the day following its publication in the Official Journal of the European Union.

2. Article 1, points 1 to 5, shall apply from 1 January 2011.

3. Article 1, point 6, shall apply from 14 July 2009.

(1) Decision 2005/684/EC, Euratom of the European Parliament of 28 September 2005 adopting the Statute for Members of the European Parliament (OJ L 262, 7.10.2005, p. 1).

(2) Decision of the Bureau of the European Parliament of 19 May and 9 July 2008 concerning implementing measures for the Statute for Members of the European Parliament (OJ C 159, 13.7.2009, p. 1).

(3) OJ L 56, 4.3.1968, p. 1.

(4) OJ L 333, 17.12.2010, p. 1.

(5) Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009 adjusting with effect from 1 July 2009 the remuneration and pensions of officials and other servants of the European Union and the correction coefficients applied thereto (OJ L 348, 29.12.2009, p. 10).

(6) Judgment of 24 November 2010 in Case C-40/10 Commission v Council (not yet published in the European Court Reports).

(7) OJ L 183, 16.7.2010, p. 1.

(8) OJ L 338, 22.12.2010, p. 1.

16.2.2011

Official Journal of the European Union

C 49/5

Euro exchange rates (1)

15 February 2011

2011/C 49/04

1 euro =

	Currency	Exchange rate
USD	US dollar	1,3510
JPY	Japanese yen	113,21
DKK	Danish krone	7,4567
GBP	Pound sterling	0,83750
SEK	Swedish krona	8,7255
CHF	Swiss franc	1,3124
ISK	Iceland króna
NOK	Norwegian krone	7,8335
BGN	Bulgarian lev	1,9558
CZK	Czech koruna	24,293
HUF	Hungarian forint	271,06
LTL	Lithuanian litas	3,4528
LVL	Latvian lats	0,7059
PLN	Polish zloty	3,9287
RON	Romanian leu	4,2518
TRY	Turkish lira	2,1504
AUD	Australian dollar	1,3503
CAD	Canadian dollar	1,3317
HKD	Hong Kong dollar	10,5282
NZD	New Zealand dollar	1,7925
SGD	Singapore dollar	1,7290
KRW	South Korean won	1 514,24
ZAR	South African rand	9,8511
CNY	Chinese yuan renminbi	8,9020
HRK	Croatian kuna	7,4068
IDR	Indonesian rupiah	12 015,55
MYR	Malaysian ringgit	4,1185
PHP	Philippine peso	58,919
RUB	Russian rouble	39,5770
THB	Thai baht	41,489
BRL	Brazilian real	2,2525
MXN	Mexican peso	16,2620
INR	Indian rupee	61,4980

(1) Source: reference exchange rate published by the ECB.

16.2.2011

Official Journal of the European Union

C 49/6

Commission communication in the framework of the implementation of Commission delegated Regulation (EU) No 1060/2010 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of household refrigerating appliances

(Text with EEA relevance)

2011/C 49/05

1. Publication of titles and references of transitional methods of measurement (1) for the implementation of Commission delegated Regulation (EU) No 1060/2010 and, in particular, Annexes VI and VII thereof.

Measured parameter	Organisation	Reference	Title
Terms, definitions, symbols and classification	CEN	Clauses 3 and 4 of EN 153. Where Clauses 3 and 4 of EN 153 conflict with the definitions set out in Article 2 and Annex I of Regulation (EC) No 643/2009, then that Regulation shall prevail	Methods of measuring the energy consumption of electric mains operated household refrigerators, frozen food storage cabinets, food freezers and their combinations, together with associated characteristics
General test conditions	CEN	Clause 8 of EN 153. Where Clause 8 of EN 153 conflicts with the conditions set out in Annex III, Part 1 of Regulation (EC) No 643/2009, then that Regulation shall prevail
Collection and disposal of defrost water	CEN	Clause 5 of EN 153
Storage temperatures	CEN	Clauses 6 and 13 of EN 153. Where Clauses 6 and 13 of EN 153 conflict with Table 4 in Annex IV of Regulation (EC) No 643/2009, then that Regulation shall prevail
Determination of linear dimensions, volumes and areas	CEN	Clause 7 of EN 153
Energy consumption	CEN	Clause 15 of EN 153
Temperature rise time	CEN	Clause 16 of EN 153
Freezing capacity	CEN	Clause 17 of EN 153
Built-in refrigerating appliances	CEN	Annex D of EN 153
Rated characteristics and control procedure	CEN	Annex E of EN 153. Where Annex E of EN 153 conflicts with Table 1 of Annex V of Regulation (EC) No 643/2009, then that Regulation shall prevail
Elements for the test report, marking	CEN	Clauses 20 and 21 of EN 153
Noise	International Electro-technical Commission	IEC 60704-1	Household and similar electrical appliances — Test code for the determination of airborne acoustical noise — Part 1: General requirements
		IEC 60704-2-14	Household and similar electrical appliances — Test code for the determination of airborne acoustical noise — Part 2-14: Particular requirements for refrigerators, frozen-food storage cabinets and food freezers
		IEC 60704-3	Household and similar electrical appliances — Test code for the determination of airborne acoustical noise — Part 3: Procedure for determining and verifying declared noise emission values
Power consumption	European Commission	Regulation (EC) No 1275/2008	Commission Regulation (EC) No 1275/2008 of 17 December 2008 implementing Directive 2005/32/EC of the European Parliament and of the Council with regard to ecodesign requirements for standby and off mode electric power consumption of electrical and electronic household and office equipment
Wine storage compartment humidity	European Commission	Part 2 (d) of this communication	Measurement method for wine storage appliances

2. Measurement method for wine storage appliances

(a) General test conditions:

—	the duration of the test period is defined in accordance with clause 8 of EN 153,

—

the variation over time of the storage temperature is measured three times as follows: the first measurement is performed at the lowest prescribed ambient temperature of the climate class(es) of the wine storage appliance, the second measurement is performed at an ambient temperature of + 25 °C and the third at the highest prescribed ambient temperature of the climate class(es) of the wine storage appliance,

—	the measurement of the active or passive control of the compartment humidity is performed with an ambient humidity between 50 % and 75 % at an ambient temperature of + 25 °C,

—	the measurements of the active or passive control of the compartment humidity and of the variation over time of the storage temperature at an ambient temperature of + 25 °C may be done simultaneously,

—	the average storage temperature of each compartment (twma ) is set at + 12 °C or the nearest colder temperature,

—	removable parts which are stated by the manufacturer as necessary for the proper thermal and mechanical functioning of wine storage compartments are placed in their intended position according to the manufacturer's instructions.

(b) The average storage temperature (twma ) of each compartment is calculated as follows:

Formula

where:

— twim= integrated time average of the instantaneous temperature value of one package of 500 g of food simulant (M-package) placed at the measurement point(s) (Twi ) in compliance with Figure 1

— n= number of food simulant (M-packages) placed at the measurement point(s) (Twi ), 1 ≤ n ≤ 3

(c) The variation over time of the storage temperature(s), hereafter referred to as the ‘temperature amplitude’, is measured at each measurement point (Twi ) in compliance with Figure 1. It is calculated as the average of the differences between the warmest and coldest instantaneous temperature values (twi ) measured between two successive stops of the refrigerating system over the duration of the test period. If no successive stops of the refrigerating system can be identified then sequential periods of 4 hours must be considered.

The variation over time of the storage temperature(s) is considered to meet the 0,5 K feature listed in Annexe I, point (l) (ii) of Commission delegated Regulation (EU) No 1060/2010 where the average(s) of all temperature amplitudes at each measurement point (Twi ) is less than 0,5 K in the three tested ambient temperatures.

(d) The relative humidity of each compartment (Hwm ) is measured in percentage and rounded to the nearest integer, as follows:

—	Hwm is measured by using a humidity sensor located at the measurement point (Tw2 ) in compliance with Figure 1,

—	for wine storage appliances with a single door but split by fixed or adjustable dividers into separate compartments each with independent temperature control, Hwm is measured for each compartment in compliance with Figure 1,

—

the active or passive control of the compartment humidity is considered to meet the range from 50 % to 80 % as listed in Annex I, point (l) (iii) of Commission delegated Regulation (EU) No 1060/2010 where the measured relative humidity (Hwm ) remains between 50 % and 80 % over the duration of the test period,

—	if the height of the compartment or sub-compartment (hw ) is less than 400 mm (Figure 1), Hwm is not measured for that compartment or sub-compartment.

(e) The rated capacity in number of standard bottles of 75 centilitres is measured in compliance with the last paragraph of point 1(1) of Annex II of Commission delegated Regulation (EU) No 1060/2010 as follows:

—	the dimension of standard bottles is measured in accordance with Figure 2,

—	the total weight of each standard bottle is 1 200 ± 50 gr. Standard bottles may be filled with water or equivalent fluid to achieve this weight,

—

one standard bottle is placed in each area intended to carry a bottle in normal usage by the end-user in accordance with the specifications listed below. A sketch of the bottle loading plan showing the location of bottles used for the measurement of the rated capacity is included in the technical documentation referred to in Article 3(c) of Commission delegated Regulation (EU) No 1060/2010.

(i)	clearance to wall/back/door (2) in accordance with the manufacturer's instruction;

(ii)	in the absence of instructions, the rear end of shelves and 5 mm clearance to door are considered as limit to the position of the bottle, proper cooling function has to be ensured;

(iii)

bottles placed in door shelves may touch door liner;

(iv)	if evaporator is covered by fix means for protection, bottles can stack till the protection, proper cooling function has to be ensured;

(v)	bottles can be placed reverse and interleave;

(vi)	bottles can touch side walls if nothing else stated by manufacturer;

(vii)

bottles can be placed horizontal or vertical, inclined if fixed means provide incline position;

(viii)

movable parts like telescopic shelves have to be kept movable and accessible under loading conditions.

Figure 1

Measurements points (Twi ) in wine storage compartment(s)

(dimensions in millimetres)

Front view

Side view

Where:

— hw = height in millimetres of the wine storage compartment

— D1 and D2 = distance between the reference lines used for determining the net volume

—	If there is a drawer, the shelf above that drawer is placed at the lowest possible position as illustrated in point 1 of Figure 1.

—	The temperature measurement point(s) (Twi ) must be placed equidistant of the sides of the compartment at D1/2 or D2/2 as illustrated in Figure 1.

—	The humidity measurement point must be placed near Tw2 with an accuracy of 100 mm as illustrated in point 2 of Figure 1.

—	If hw > 400, three temperature measurement points (Tw1, Tw2 and Tw3 ) are used.

—	If 300 < hw ≤ 400, two temperature measurement points (Tw1 and Tw3 ) are used.

—	If hw ≤ 300 mm, only one temperature measurement point (Tw2) is used.

Figure 2

Standard bottle

(1) It is intended that these transitional methods will ultimately be replaced by harmonised standard(s). When available, reference(s) to the harmonised standard(s) will be published in the Official Journal of the European Union in accordance with Annexes VI and VII of Commission delegated Regulation (EU) No 1060/2010.

(2) Space between the appliance back/wall/door and the bottom/top of the bottle.

16.2.2011

Official Journal of the European Union

C 49/16

Notice of initiation of an anti-dumping proceeding concerning imports of certain polyethylene terephthalate originating in Oman and Saudi Arabia

2011/C 49/10

The European Commission (‘the Commission’) has received a complaint pursuant to Article 5 of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1) (‘the basic Regulation’), alleging that imports of certain polyethylene terephthalate, originating in Oman and Saudi Arabia, are being dumped and are thereby causing material injury to the Union industry.

1. Complaint

The complaint was lodged on 3 January 2011 by the Committee of Polyethylene Terephthalate (PET) Manufacturers in Europe (CPME) (‘the complainant’) on behalf of producers representing a major proportion, in this case more than 50 % of the total Union production of certain polyethylene terephthalate.

2. Product under investigation

The product subject to this investigation is polyethylene terephthalate having a viscosity number of 78 ml/g or higher, according to the ISO Standard 1628-5 (‘the product under investigation’).

3. Allegation of dumping (2)

The product allegedly being dumped is the product under investigation, originating in Oman and Saudi Arabia (‘the countries concerned’), currently falling within CN code 3907 60 20. This CN code is given for information only.

In the absence of reliable data on domestic prices for the countries concerned, the allegation of dumping is based on a comparison of a constructed normal value (manufacturing costs, selling, general and administrative costs (SG&A) and profit) with the export price (at ex-works level) of the product under investigation when sold for export to the Union (3).

On this basis the dumping margins calculated are significant for the countries concerned.

4. Allegation of injury

The complainant has provided evidence that imports of the product under investigation from the countries concerned have increased overall in absolute terms and have increased in terms of market share.

The prima facie evidence provided by the complainant shows that the volume and the prices of the imported product under investigation have, among other consequences, had a negative impact on the quantities sold, the level of the prices charged and the market share held by the Union industry, resulting in substantial adverse effects on the overall performance, the financial situation and the employment situation of the Union industry.

5. Procedure

Having determined, after consulting the Advisory Committee, that the complaint has been lodged by or on behalf of the Union industry and that there is sufficient evidence to justify the initiation of a proceeding, the Commission hereby initiates an investigation pursuant to Article 5 of the basic Regulation.

The investigation will determine whether the product under investigation originating in the countries concerned is being dumped and whether this dumping has caused injury to the Union industry. If the conclusions are affirmative, the investigation will examine whether the imposition of measures would not be against the Union interest.

5.1. Procedure for the determination of dumping

Exporting producers (4) of the product under investigation from the countries concerned are invited to participate in the Commission investigation.

5.1.1. Investigating exporting producers

5.1.1.1. Procedure for selecting exporting producers to be investigated in the countries concerned

In order to obtain the information it deems necessary for its investigation with regard to exporting producers in the countries concerned, the Commission will send questionnaires to the known exporting producers in the countries concerned, to any known association of exporting producers, and to the authorities of the countries concerned. All exporting producers and associations of exporting producers are invited to contact the Commission immediately, by fax, but no later than 15 days after the publication of this notice in the Official Journal of the European Union, unless otherwise specified, in order to make themselves known and to request a questionnaire.

The exporting producers and, where applicable, the associations of exporting producers, must submit the completed questionnaire within 37 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified.

The completed questionnaire will contain information on, inter alia, the structure of the exporting producer's company(ies), the activities of the company(ies) in relation to the product under investigation, the cost of production, the sales of the product under investigation on the domestic market of the countries concerned and the sales of the product under investigation to the Union.

5.1.2. Investigating unrelated (5) importers (6) (7)

In view of the potentially large number of unrelated importers involved in this proceeding and in order to complete the investigation within the statutory time limits, the Commission may limit to a reasonable number the unrelated importers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 17 of the basic Regulation.

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all unrelated importers, or representatives acting on their behalf, are hereby requested to make themselves known to the Commission. These parties should do so within 15 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified, by providing the Commission with the following information on their company or companies:

—	name, address, e-mail address, telephone and fax numbers and contact person,

—	the precise activities of the company with regard to the product under investigation,

—	the total turnover during the period 1 January 2010 to 31 December 2010,

—	the volume in tonnes and value in EUR of imports into and resales made on the Union market during the period 1 January 2010 to 31 December 2010 of the imported product under investigation originating in the countries concerned,

—	the names and the precise activities of all related companies (8) involved in the production and/or sales of the product under investigation,

—	any other relevant information that would assist the Commission in the selection of the sample.

By providing the above information, the company agrees to its possible inclusion in the sample. If the company is selected to be part of the sample, this will imply completing a questionnaire and accepting a visit at its premises in order to verify its response (‘on-spot verification’). If the company indicates that it does not agree to its possible inclusion in the sample, it will be deemed not to have cooperated in the investigation. The Commission findings for non-cooperating importers are based on the facts available and the result may be less favourable to that party than if it had cooperated.

In order to obtain the information it deems necessary for the selection of the sample of unrelated importers, the Commission may also contact any known associations of importers.

All interested parties wishing to submit any other relevant information regarding the selection of the sample, excluding the information requested above, must do so within 21 days of the publication of this notice in the Official Journal of the European Union, unless otherwise specified.

If a sample is necessary, the importers may be selected based on the largest representative volume of sales of the product under investigation in the Union which can reasonably be investigated within the time available. All known unrelated importers and associations of importers will be notified by the Commission of the companies selected to be in the sample.

In order to obtain the information it deems necessary for its investigation, the Commission will send questionnaires to the sampled unrelated importers and to any known association of importers. These parties must submit a completed questionnaire within 37 days from the date of the notification of the sample selection, unless otherwise specified. The completed questionnaire will contain information on, inter alia, the structure of their company(ies), the activities of the company(ies) in relation to the product under investigation and on the sales of the product under investigation.

5.2. Procedure for the determination of injury

Injury means material injury to the Union industry, or threat of material injury to the industry, or material retardation of the establishment of such an industry. A determination of injury is based on positive evidence and involves an objective determination of the volume of dumped imports, their effect on prices on the Union market and the consequent impact of those imports on the Union industry. In order to establish whether the Union industry is materially injured, Union producers of the product under investigation are invited to participate in the Commission investigation.

5.2.1. Investigating Union producers

In view of the large number of Union producers involved in this proceeding and in order to complete the investigation within the set time limits, the Commission has decided to limit to a reasonable number the Union producers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling is carried out in accordance with Article 17 of the basic Regulation.

The Commission has provisionally selected a sample of Union producers. Details can be found in the file for inspection by interested parties. Interested parties are hereby invited to consult the file (for this they should contact the Commission using the contact details provided in section 5.6 below) and to comment on the appropriateness of this choice within 15 days of the date of publication of this notice in the Official Journal of the European Union.

All interested parties wishing to submit any relevant information regarding the selection of the sample must do so within 21 days of the publication of this notice in the Official Journal of the European Union, unless otherwise specified.

All known Union producers and associations of Union producers will be notified by the Commission of the companies finally selected to be in the sample.

In order to obtain the information it deems necessary for its investigation, the Commission will send questionnaires to the sampled Union producers and to any known association of Union producers. These parties must submit a completed questionnaire within 37 days from the date of the notification of the sample selection, unless otherwise specified. The completed questionnaire will contain information on, inter alia, the structure of their company(ies), the financial situation of the company(ies), the activities of the company(ies) in relation to the product under investigation, the cost of production and the sales of the product under investigation.

5.3. Procedure for the assessment of Union interest

Should the existence of dumping and injury caused thereby be established, a decision will be reached, pursuant to Article 21 of the basic Regulation, as to whether the adoption of anti-dumping measures would be against the Union interest. Union producers, importers and their representative associations, users and their representative associations and representative consumer organisations are invited to make themselves known within 15 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. In order to participate in the investigation, the representative consumer organisations have to demonstrate, within the same deadline, that there is an objective link between their activities and the product under investigation.

Parties that make themselves known within the above deadline may provide the Commission with information on the Union interest within 37 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. This information may be provided either in a free format or by completing a questionnaire prepared by the Commission. In any case, information submitted pursuant to Article 21 will only be taken into account if supported by factual evidence at the time of submission.

5.4. Other written submissions

Subject to the provisions of this notice, all interested parties are hereby invited to make their views known, submit information and provide supporting evidence. Unless otherwise specified, this information and supporting evidence should reach the Commission within 37 days of the date of publication of this notice in the Official Journal of the European Union.

5.5. Possibility to be heard by the Commission investigation services

All interested parties may request to be heard by the Commission investigation services. Any request to be heard should be made in writing and should specify the reasons for the request. For hearings on issues pertaining to the initial stage of the investigation the request must be submitted within 15 days of the date of publication of this notice in the Official Journal of the European Union. Thereafter, a request to be heard should be submitted within the specific deadlines set by the Commission in its communication with the parties.

5.6. Instructions for making written submissions and sending completed questionnaires and correspondence

All submissions, including information submitted for the selection of the sample, completed questionnaires and updates thereof, made by interested parties must be made in writing in both paper and electronic format, and must indicate the name, address, e-mail address, telephone and fax numbers of the interested party. If an interested party cannot provide its submissions and requests in electronic format for technical reasons, it must immediately inform the Commission.

All written submissions, including the information requested in this notice, completed questionnaires and correspondence provided by interested parties for which confidential treatment is requested shall be labelled ‘Limited’ (9).

Interested parties providing ‘Limited’ information are required to furnish non-confidential summaries of it pursuant to Article 19(2) of the basic Regulation, which will be labelled ‘For inspection by interested parties’. These summaries should be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence. If an interested party providing confidential information does not furnish a non-confidential summary of it in the requested format and quality, such confidential information may be disregarded.

Commission address for correspondence:

European Commission

Directorate-General for Trade

Directorate H

Office: N-105 04/092

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

Fax +32 22956505

6. Non-cooperation

In cases where any interested party refuses access to or does not provide the necessary information within the time-limits, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of facts available, in accordance with Article 18 of the basic Regulation.

Where it is found that any interested party has supplied false or misleading information, the information may be disregarded and use may be made of facts available.

If an interested party does not cooperate or cooperates only partially and findings are therefore based on facts available in accordance with Article 18 of the basic Regulation, the result may be less favourable to that party than if it had cooperated.

7. Hearing Officer

Interested parties may request the intervention of the Hearing Officer of the Directorate-General for Trade. The Hearing Officer acts as an interface between the interested parties and the Commission investigation services. The Hearing Officer reviews requests for access to the file, disputes on the confidentiality of documents, requests for extension of time limits and requests by third parties to be heard. The Hearing Officer may organize a hearing with an individual interested party and mediate to ensure that the interested parties’ rights of defence are being fully exercised.

A request for a hearing with the Hearing Officer should be made in writing and should specify the reasons for the request. For hearings on issues pertaining to the initial stage of the investigation the request must be submitted within 15 days of the date of publication of this notice in the Official Journal of the European Union. Thereafter, a request to be heard must be submitted within specific deadlines set by the Commission in its communication with the parties.

The Hearing Officer will also provide opportunities for a hearing involving parties to take place which would allow different views to be presented and rebuttal arguments offered on issues pertaining, among others, to dumping, injury, causal link and Union interest. Such a hearing would, as a rule, take place at the latest at the end of the fourth week following the disclosure of provisional findings.

For further information and contact details interested parties may consult the Hearing Officer's web pages on DG Trade's website: (http://ec.europa.eu/trade/issues/respectrules/ho/index_en.htm).

8. Schedule of the investigation

The investigation will be concluded, according to Article 6(9) of the basic Regulation within 15 months of the date of the publication of this notice in the Official Journal of the European Union. According to Article 7(1) of the basic Regulation, provisional measures may be imposed no later than nine months from the publication of this notice in the Official Journal of the European Union.

9. Processing of personal data

Any personal data collected in this investigation will be treated in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (10).

(1) OJ L 343, 22.12.2009, p. 51.

(2) Dumping is the practice of selling a product for export (‘the product concerned’) at a price below its ‘normal value’. The normal value is usually taken to be a comparable price for the ‘like’ product on the domestic market of the exporting country. The term ‘like product’ is interpreted to mean a product which is alike in all respects to the product concerned or, in the absence of such a product, a product which closely resembles the product.

(3) The 27 Member States of the European Union are: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom.

(4) An exporting producer is any company in the countries concerned which produces and exports the product under investigation to the Union market, either directly or via third party, including any of its related companies involved in the production, domestic sales or exports of the product concerned. Non-producing exporters are normally not entitled to an individual duty rate.

(5) In accordance with Article 143 of Commission Regulation (EEC) No 2454/93 concerning the implementation of the Community Customs Code, persons shall be deemed to be related only if: (a) they are officers or directors of one another's businesses; (b) they are legally recognized partners in business; (c) they are employer and employee; (d) any person directly or indirectly owns, controls or holds 5 % or more of the outstanding voting stock or shares of both of them; (e) one of them directly or indirectly controls the other; (f) both of them are directly or indirectly controlled by a third person; (g) together they directly or indirectly control a third person; or (h) they are members of the same family. Persons shall be deemed to be members of the same family only if they stand in any of the following relationships to one another: (i) husband and wife, (ii) parent and child, (iii) brother and sister (whether by whole or half blood), (iv) grandparent and grandchild, (v) uncle or aunt and nephew or niece, (vi) parent-in-law and son-in-law or daughter-in-law, (vii) brother-in-law and sister-in-law. (OJ L 253, 11.10.1993, p. 1). In this context ‘person’ means any natural or legal person.

(6) Only importers not related to exporting producers can be sampled. Importers that are related to exporting producers have to fill in Annex 1 to the questionnaire for these exporting producers. For the definition of a related party see footnote 5.

(7) The data provided by unrelated importers may also be used in relation to aspects of this investigation other than the determination of dumping.

(8) For the definition of a related party, see footnote 5.

(9) A ‘Limited’ document is a document which is considered confidential pursuant to Article 19 of Council Regulation (EC) No 1225/2009 (OJ L 343, 22.12.2009, p. 51) and Article 6 of the WTO Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping Agreement). It is also a document protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (OJ L 145, 31.5.2001, p. 43).

(10) OJ L 8, 12.1.2001, p. 1.

16.2.2011

Official Journal of the European Union

C 49/21

Notice of initiation of an anti-subsidy proceeding concerning imports of certain polyethylene terephthalate originating in Oman and Saudi Arabia

2011/C 49/11

The European Commission (‘the Commission’) has received a complaint pursuant to Article 10 of Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (1) (‘the basic Regulation’), alleging that imports of certain polyethylene terephthalate, originating in Oman and Saudi Arabia, are being subsidised and are thereby causing material injury to the Union industry.

1. Complaint

2. Product under investigation

The product subject to this investigation is polyethylene terephthalate having a viscosity number of 78 ml/g or higher, according to the ISO Standard 1628-5 (‘the product under investigation’).

3. Allegation of subsidisation

The product allegedly being subsidised is the product under investigation, originating in Oman and Saudi Arabia (‘the countries concerned’), currently falling within CN code 3907 60 20. This CN code is given for information only.

(a) Oman

It is alleged that the sole producer of the product investigation originating in Oman has benefitted from a number of subsidies granted by the Government of Oman.

The subsidies consist, inter alia, of direct income tax exemption and exemption from duties on imports and exports for operators located in a special economic zone, soft loans for investment projects for export oriented industries and projects with a high percentage of Omani employees, subsidised interest rates for loans granted by the Oman Development Bank (a public body) through commercial banks to Omani exporters after completing shipping arrangements, export subsidies on exports that contain value added not less than 25 % if exported to countries other than Arab countries, the provision of water, gas and electricity at reduced rates.

It is alleged that the above schemes are subsidies since they involve a financial contribution from the Government of Oman (including public bodies) and confer a benefit to the recipient. They are alleged to be contingent upon export performance and/or to be limited to certain enterprises within a designated geographical area within the jurisdiction of the granting authority and/or to be limited to certain sectors or to certain enterprises and are therefore specific and countervailable.

(b) Saudi Arabia

It is alleged that the sole producer of the product under investigation originating in Saudi Arabia has benefitted from a number of subsidies granted by the Government of Saudi Arabia.

The subsidies consist, inter alia, of reduced port fees on exports, exemption from storage fees for exported goods, exemptions from export duties and all other taxes for export oriented units, imports of raw materials and capital goods without payment of import duties and reduced utility rates for operators located in special economic zones, interest-free loans provided by the Saudi Industrial Development Fund for companies with at least 50 % Saudi capital, exemption from income tax for companies with at least 25 % Saudi capital, reduced rates for water, gas and electricity for certain companies. The Government of Saudi Arabia, through the State-owned company Aramco (a public body), applies a system of dual pricing whereby domestic producers have access to feedstock at below international market prices.

It is alleged that the above schemes are subsidies since they involve a financial contribution from the Government of Saudi Arabia (including public bodies) and confer a benefit to the recipient, i.e. to the exporting producer of the product under investigation. They are alleged to be contingent upon export performance and/or to be limited to certain enterprises within a designated geographical area within the jurisdiction of the granting authority and/or to be limited to certain sectors or to certain enterprises and are therefore specific and countervailable. In the case of dual pricing, the specificity arises from the fact the feedstock can only be used by the petrochemical sector (inherent specificity).

4. Allegation of injury

The complainant has provided evidence that imports of the product under investigation from Oman and Saudi Arabia have increased overall in absolute terms and have increased in terms of market share.

5. Procedure

The investigation will determine whether the product under investigation originating in the countries concerned is being subsidised and whether this subsidisation has caused injury to the Union industry. If the conclusions are affirmative, the investigation will examine whether the imposition of measures would not be against the Union interest.

5.1. Procedure for the determination of subsidisation

Exporting producers (2) of the product under investigation from the countries concerned are invited to participate in the Commission investigation.

5.1.1. Investigating exporting producers

5.1.1.1. Procedure for selecting exporting producers to be investigated in the countries concerned

The completed questionnaire will contain information on, inter alia, the structure of the exporting producer's company(ies), the activities of the company(ies) in relation to the product under investigation, the sales of the product under investigation on the domestic market of the countries concerned and the sales of the product under investigation to the Union.

Questionnaires will also be sent to the authorities of the exporting countries concerned.

5.1.2. Investigating unrelated (3) importers (4) (5)

In view of the potentially large number of unrelated importers involved in this proceeding and in order to complete the investigation within the statutory time-limits, the Commission may limit to a reasonable number the unrelated importers that will be investigated by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 27 of the basic Regulation.

—	name, address, e-mail address, telephone and fax numbers and contact person,

—	the precise activities of the company with regard to the product under investigation,

—	the total turnover during the period 1 January 2010 to 31 December 2010

—	the volume in tonnes and value in EUR of imports into and resales made on the Union market during the period 1 January 2010 to 31 December 2010 of the imported product under investigation originating in the countries concerned,

—	the names and the precise activities of all related companies (6) involved in the production and/or sales of the product under investigation,

—	any other relevant information that would assist the Commission in the selection of the sample.

In order to obtain the information it deems necessary for the selection of the sample of unrelated importers, the Commission may also contact any known associations of importers.

5.2. Procedure for the determination of injury

Injury means material injury to the Union industry, or threat of material injury to the industry, or material retardation of the establishment of such an industry. A determination of injury is based on positive evidence and involves an objective determination of the volume of subsidised imports, their effect on prices on the Union market and the consequent impact of those imports on the Union industry. In order to establish whether the Union industry is materially injured, Union producers of the product under investigation are invited to participate in the Commission investigation.

5.2.1. Investigating Union producers

All known Union producers and associations of Union producers will be notified by the Commission of the companies finally selected to be in the sample.

5.3. Procedure for the assessment of Union interest

Should the existence of subsidisation and injury caused thereby be established, a decision will be reached, pursuant to Article 31 of the basic Regulation, as to whether the adoption of countervailing measures would be against the Union interest. Union producers, importers and their representative associations, users and their representative associations and representative consumer organisations are invited to make themselves known within 15 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. In order to participate in the investigation, the representative consumer organisations have to demonstrate, within the same deadline, that there is an objective link between their activities and the product under investigation.

Parties that make themselves known within the above deadline may provide the Commission with information on the Union interest within 37 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. This information may be provided either in a free format or by completing a questionnaire prepared by the Commission. In any case, information submitted pursuant to Article 31 will only be taken into account if supported by factual evidence at the time of submission.

5.4. Other written submissions

5.5. Possibility to be heard by the Commission investigation services

5.6. Instructions for making written submissions and sending completed questionnaires and correspondence

Interested parties providing ‘Limited’ information are required to furnish non-confidential summaries of it pursuant to Article 29(2) of the basic Regulation, which will be labelled ‘For inspection by interested parties’. These summaries should be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence. If an interested party providing confidential information does not furnish a non-confidential summary of it in the requested format and quality, such confidential information may be disregarded.

Commission address for correspondence:

European Commission

Directorate-General for Trade

Directorate H

Office: N-105 04/092

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

Fax +32 22956505

6. Non-cooperation

Where it is found that any interested party has supplied false or misleading information, the information may be disregarded and use may be made of facts available.

If an interested party does not cooperate or cooperates only partially and findings are therefore based on facts available in accordance with Article 28 of the basic Regulation, the result may be less favourable to that party than if it had cooperated.

7. Hearing Officer

The Hearing Officer will also provide opportunities for a hearing involving parties to take place which would allow different views to be presented and rebuttal arguments offered on issues pertaining, among others, to subsidisation, injury, causal link and Union interest. Such a hearing would, as a rule, take place at the latest at the end of the fourth week following the disclosure of provisional findings.

For further information and contact details interested parties may consult the Hearing Officer's web pages on DG Trade's website: (http://ec.europa.eu/trade/issues/respectrules/ho/index_en.htm).

8. Schedule of the investigation

The investigation will be concluded, according to Article 11(9) of the basic Regulation within 13 months of the date of the publication of this notice in the Official Journal of the European Union. According to Article 12(1) of the basic Regulation, provisional measures may be imposed no later than nine months from the publication of this notice in the Official Journal of the European Union.

9. Processing of personal data

(1) OJ L 188, 8.7.2009, p. 93.

(2) An exporting producer is any company in the countries concerned which produces and exports the product under investigation to the Union market, either directly or via third party, including any of its related companies involved in the production, domestic sales or exports of the product concerned. Non-producing exporters are normally not entitled to an individual duty rate.

(3) In accordance with Article 143 of Commission Regulation (EEC) No 2454/93 concerning the implementation of the Community Customs Code, persons shall be deemed to be related only if: (a) they are officers or directors of one another's businesses; (b) they are legally recognized partners in business; (c) they are employer and employee; (d) any person directly or indirectly owns, controls or holds 5 % or more of the outstanding voting stock or shares of both of them; (e) one of them directly or indirectly controls the other; (f) both of them are directly or indirectly controlled by a third person; (g) together they directly or indirectly control a third person; or (h) they are members of the same family. Persons shall be deemed to be members of the same family only if they stand in any of the following relationships to one another: (i) husband and wife, (ii) parent and child, (iii) brother and sister (whether by whole or half blood), (iv) grandparent and grandchild, (v) uncle or aunt and nephew or niece, (vi) parent-in-law and son-in-law or daughter-in-law, (vii) brother-in-law and sister-in-law. (OJ L 253, 11.10.1993, p. 1). In this context ‘person’ means any natural or legal person.

(4) Only importers not related to exporting producers can be sampled. Importers that are related to exporting producers have to fill in Annex 1 to the questionnaire for these exporting producers. For the definition of a related party see footnote 3.

(5) The data provided by unrelated importers may also be used in relation to aspects of this investigation other than the determination of subsidisation.

(6) For the definition of a related party, see footnote 3.

(7) This document is a confidential document pursuant to Article 29 of Council Regulation (EC) No 597/2009 (OJ L 188, 18.7.2009, p. 93) and Article 12 of the WTO Agreement on Suibsidies and Countervailing Measures. It is also a document protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (OJ L 145, 31.5.2001, p. 43).

(8) OJ L 8, 12.1.2001, p. 1.

16.2.2011

Official Journal of the European Union

C 49/26

STATE AID — THE NETHERLANDS

(Articles 107 to 109 of the Treaty on the Functioning of the European Union)

State aid MC 10/09 — GHT1 hybrids call of ING

(Text with EEA relevance)

2011/C 49/12

The Commission notified the Netherlands by letter of 29 November 2010 of its sui generis decision regarding the aid MC 10/09.

TEXT OF LETTER

‘I. PROCEDURE

(1)

By decision of 18 November 2009, the Commission approved a capital injection of EUR 10 billion of capital (CT1 securities), additional aid of approximately EUR 2 billion resulting from the amendment of the repayment conditions for those securities, an impaired asset protection applied to a portfolio with an outstanding balance of about EUR 30 billion and liquidity guarantees in favour of ING in case C 10/09 (hereinafter referred to as the “ING Decision” or “the decision of 18 November 2009”) (1).

(2)

The third indent of recital 88 of the ING Decision records the following commitment of the Netherlands regarding the calling of Tier 1 and Tier 2 securities: “The calling of Tier 2 capital and Tier 1 hybrids will in the future be proposed case by case to the Commission for authorisation, for the shorter period of three years starting from the date of the present Decision or up to the date on which ING has fully repaid the Core-Tier 1 securities to the Netherlands (including the relevant accrued interest on Core-Tier 1 coupons and exit premium fees).”.

(3)	On 16 October 2010, the Netherlands transferred to the Commission a letter from ING requesting the authorisation of a call of a number of hybrid instruments, with a first calling date for a USD 1,5 billion 8,439 % Group Hybrid Tier 1 Instrument (hereinafter the “GHT1”) on 31 December 2010.

(4)	On 27 October 2010, the Commission indicated to the Netherlands that, on the basis of the ING Decision, at this stage it would see no reasons for authorising a call of the GHT1. The Commission requested the Netherlands to provide an updated schedule for the repayment of the CT1 securities.

(5)	On 5 November 2010, the Dutch authorities transmitted a second letter from ING requesting a Commission Decision on its request to authorise the calling of the GHT1.

(6)	On 9 November 2010, the Commission sent a reminder to the Netherlands as regards the CT1 repayment schedule. No official schedule has to date been provided.

(7)	On 16 November 2010, the Netherlands requested a formal authorisation by the Commission. On 18 November 2010, the Netherlands informed the Commission via e-mail that they endorse the request by ING for authorisation of a call of the GHT1.

(8)	The Netherlands informed the Commission that for reasons of urgency they exceptionally accept that this Decision as regards the GHT1 hybrid call is adopted in the English language.

II. FACTS

1. Description of ING

(9)

ING is composed of ING Groep N.V. (hereinafter “ING”), the mother holding company that controls 100 % of ING Bank N.V., ING Verzekeringen N.V., and two sub-holding companies controlling banking and insurance subsidiaries respectively. As of the end of 2009, the group balance sheet totalled EUR 1,164 billion.

(10)

In order inter alia to restore its long-term viability, ING had received the measures specified in point (1). Those measures were approved by the Commission in the ING Decision subject to several commitments made by the Dutch State. Those commitments included that ING will divest the entire ING Verzekeringen N.V. at the latest by the end of 2013 (recital 82) and that ING will abide by certain behavioural safeguards including seeking an authorisation from the Commission prior to calling hybrid capital instruments (third indent of recital 88). Those behavioural safeguards remain in effect for three years or until ING has repaid the CT1 securities, whichever is earlier.

(11)	Recital 76 of the ING Decision describes the repayment schedule of the CT1 securities in the base case according to the financial projections of the approved restructuring plan. ING has subsequently made public statements which put those plans in doubt (2).

2. Description of the GHT1

(12)

In December 2000, ING Holding issued the GHT1 amounting to USD 1,5 billion with a first call date on 31 December 2010. After that date a call is possible every quarter. The instrument bears a semi-annual coupon of 8,439 % p.a. After the first call date the coupon will change into a quarterly coupon of 3 month-Libor (3) plus 3,6 % p.a. In order to call the instrument ING has to announce a call 30 to 60 days before the call date.

(13)	The GHT1 issued by ING Holding was placed at the level of ING Insurance (INGV) through a corresponding Tier 1 instrument. No voting right is attached to the GHT1.

(14)	When ING first approached the Commission to discuss the hybrids calling on 22 July 2010, the GHT1 was trading at around 85 % of par. However as the call date approached, and the market expected the instrument to be called, the price went up to close to 100 %.

3. Position of the Netherlands

(15)

In the e-mail of 18 November 2010, the Netherlands justified its notification by reference to the expressed intentions of ING, according to which “ING is at this moment well positioned to pay back a first tranche of the core tier 1 in cash soon”. The timing of that pay back announcement was however left unspecified.

(16)

In support of the call, the Netherlands explained that any desire to see burden-sharing by the GHT1 investors, under which they would accept a price substantially below par, would be no longer realistic given the current market price of 96-98 cents on the dollar, with the consequence that a buy back tender offer would no longer be economically feasible. The cash call back would therefore be the only option available for ING for removing the hybrid from its book.

(17)

Not calling would also send a negative signal to the market and failure to call would suggest that ING is (irrespective of the reason) not able to efficiently manage its capital in accordance to market customs and expectations, rendering it more difficult for ING to issue such instruments in the future. In that respect it is also argued that not calling would raise ING's financing costs and reduce its profits and thus the funds available to redeem the CT1 securities.

(18)

The GHT1 in question has an upcoming first call date on 31 December 2010 with a step-up to Libor plus 3,6 % instead of the current interest rate of 8,439 %. Although this would result in a lower interest payment on the GHT1 due to the current low Libor rates, ING claims that it has swapped the fixed coupon of 8,439 % to Libor plus 2 %, a level below that which will be payable on the coupon after the step-up. In addition, it is argued that Libor rates are floating and therefore uncertain. In consequence, it is argued that the relevant measure would be how the market assesses that cost via the swap curve and this premium will increase by 156 bps.

(19)

While the proposed Basel III changes would limit the value of the GHT1 for capital purposes, the GHT1 would no longer be eligible for Tier 1 treatment under the revised CEBS Tier 1 guidelines which are to be implemented and applied by national regulators by 31 December 2010. It is submitted that the existing structure could be grandfathered, but the expectation is that any such grandfathering would be permissible only until 1 January 2013. Effectively, therefore, that prospect would make the GHT1 already redundant from a capital perspective as it is not providing a capital buffer on a going concern basis.

(20)

In addition, not calling the hybrid would imply continued linkage between the Holding/Group or bank and INGV through ongoing interest payments on the current intergroup instrument. Such ongoing links would hinder the divestiture of the Insurance part of ING. It is argued that a divestment of INGV would result in excess Hybrid Tier 1 capital at the level of the Group/Holding.

III. ASSESSMENT

(21)

Regarding the legal basis for the present decision, it should be noted that the question of authorising calling the GHT1 arises in the context of the implementation of the ING Decision. As a result of the commitments made by the Dutch State, the ING Decision does not allow the calling of hybrid capital instruments unless authorised by the Commission (ex ante prohibition of calls). Therefore, that decision does not exclude the authorisation of a call at a later stage should new facts or arguments supporting such a call be presented. This decision will thus specify the implementation of the ING Decision.

(22)

The present monitoring decision is a decision sui generis. Although it is not foreseen in Regulation (EC) No 659/1999, recital 88 of the decision of 18 November 2009 lays down an authorisation procedure under which the Member State may request the Commission to permit ING to call hybrid instruments. Since the Netherlands has presented such a request, the Commission must assess whether the proposed call should be permitted.

(23)

Regarding the scope of the assessment, any calling of hybrids has to be assessed in the light of the principles set out in the Restructuring Communication (4), which requires in point 22 that aid should be limited to the minimum necessary and the bank and its capital holders should contribute to the restructuring as much as possible with their own resources. Such burden-sharing is necessary for ensuring that rescued banks bear adequate responsibility for the consequences of their past behaviour and to create appropriate incentives for their future behaviour, thereby avoiding moral hazard.

(24)

The Commission notes that the exercise of call-options of Tier 1 and Tier 2 capital instruments implies an outflow of capital from the bank in favour of hybrid capital holders and protects the latter from their exposure to the inherent risk of their investment. Such an outcome might be problematic prior to the repayment of State aid and is a matter where burden-sharing has to be assessed. (5) Therefore the prohibition on banks repurchasing their own shares mentioned in point 26 of the Restructuring Communication must be understood as referring to all capital instruments of banks including Tier 1 and Tier 2 capital instruments as long as those capital instruments do not satisfy the broader burden-sharing requirement.

(25)

That conclusion is the basis for prohibiting calls in principle, subject to the possibility of authorisation, as set out in recital 88 of the ING Decision and is reaffirmed in the ING Decision at recital 138 where the Commission considered the unauthorised calling of a capital instrument made before the adoption of the ING Decision was as aggravating factor when it analysed the scope of measures limiting distortions of the competition. That approach is also in line with the established Commission practice as to temporary calling bans on capital instruments — as long as calling those instruments is not legally required — which has been followed in the cases of Bank of Ireland, Lloyds, RBS and ABN Amro/Fortis (6).

(26)

On the basis of the information provided the Commission sees no grounds to depart from its assessment in the ING Decision and to authorise a call of the GHT1. For the reasons set out below, the Commission considers that the proposed call neither ensures burden-sharing nor ensures that sufficient incentives for ING remain in place for repaying the CT1 securities.

(27)

First, the Commission notes that ING plans to call the GHT1 at par, thus implying no burden-sharing on the part of the hybrid investors. That assessment is also shared in the submission presented by the Dutch State to the Commission on 5 November 2010, when any desire for burden sharing is called no longer realistic given the current market price of the instruments. The Commission notes in that respect, however, that the fact that the instruments trade very close to par (i.e. 100 %) is due to a market expectation that the instruments would be called, i.e. bought back at 100 % on 31 December 2010. Therefore the current market price of the GHT1 does not reflect the intrinsic value of the capital instrument.

(28)

The Commission's view on burden-sharing is not called into question by the argument that failure to call the GHT1 would send a negative signal to the market. The Commission notes in this respect that the market is aware of the concept of burden-sharing required under EU State aid rules. That concept has been discussed by ratings agencies (7) and a rational investor should therefore be capable of differentiating between not calling an instrument because of inherent weakness of the financial institution and not doing so because the Commission has not authorised such a call so as to ensure burden-sharing. Therefore, the Commission does not accept that not calling the GHT1 for those reasons would result in any significant longer-term funding cost rise for ING.

(29)

In addition to that, the magnitude of the alleged increase in funding costs is not such as to affect the financial situation of ING and its capacity to repay the State. Further an increased capital base could in fact lower ING's overall financing costs, as it could — ceteris paribus — enhance the perceived credit worthiness of the company.

(30)

The argument that investors would see ING as not being capable of managing its capital, if the GHT1 instrument would not be called is unconvincing since other large financial groups such as Deutsche Bank in December 2008 or the smaller bank Credito Valtellinese in April 2008, have in the past decided not to call a hybrid without raising such concerns.

(31)

Third, the Commission has not been provided with sufficient evidence that the calling of GHT1 does not affect the repayment schedule of the CT1 securities. The Commission notes in that regard that its requests for further information about that schedule (see points (4) and (6)) have not been sufficiently answered. The Commission has not received a reply from the Dutch authorities themselves and the intention to repay expressed to the Netherlands by ING (see point 15) is not detailed and remains vague.

(32)

The need for ING to request authorisation for calling hybrid capital instruments is a key incentive for it to repay the CT1 securities as rapidly as possible and thus ensures that the aid is limited to the minimum necessary. If ING were allowed to call its hybrids one-by-one (as indicated in point 3), its incentives for repaying the State would progressively and significantly diminish. That factor is particularly relevant given that the Commission has become unsure — following public comments from the CEO of ING — whether the planned repayment schedule for the State capital set out in the restructuring plan will be followed by ING and the information requests sent by the Commission on this issue have not yet been answered.

(33)

Furthermore, the Commission does not see how the remaining arguments in favour of allowing the GHT1 to be called alter the above conclusion. First, as regards the coupon step up, the Commission notes that in absolute terms the coupon will decrease given the current levels of Libor. It is unconvinced by the arguments that the coupon decrease is irrelevant in light of ING's existing interest rate hedging arrangements, since those arrangements pertain to ING's asset liability management decisions and do not affect the assessment of the burden-sharing by private hybrid capital holders of ING. Moreover, the existence of the swap arrangement, either terminated or continued, is irrelevant to the assessment of the opportunity costs for ING of a call in the current market environment.

(34)

Second, as regards the regulatory changes affecting the GHT1 the Commission acknowledges the point made by the Netherlands that the instrument will cease to be relevant from a regulatory capital perspective by 1 January 2013 at the latest. However, as the requirement flowing from the Dutch State's commitment that the Commission's authorisation is necessary prior to any hybrid call will expire at that latest within three years from the adoption of the ING Decision, ING will be free to call the instrument before that date.

(35)

In respect of the introduction of new CEBS guidelines by the Dutch regulator, the Commission first notes that it is not clear at this stage whether the GHT1 will qualify for grandfathering. Further the Commission notes that the date of the implementation of the new guidelines is not certain. The Commission considers that given the uncertainties about the impact of a future regulation to be introduced, there is currently no ground to consider that the instrument must be treated as redundant.

(36)

While the Commission sees merit in the argument that not calling the GHT1 could make it more difficult for ING to issue such an instrument in the future, it considers that the usefulness of issuing such instruments will decrease in view of regulatory changes which end the recognition of the instrument as Tier 1 over the coming years. Hence, it cannot accept that argument as a justification for authorising the proposed call.

(37)	It is further argued that a failure to call will result in excess capital at the level of the Group/Holding once the insurance part of ING is divested (8). Here, the Commission notes that such a divestment has not taken place so far.

(38)

Finally, the Commission is unconvinced by the argument that the hybrid will constitute, if not called, a “continued linkage” between the insurance part of ING, which is to be divested, and the ING Group and that this linkage would hinder the divestment of ING Insurance. The Commission notes that no voting rights are attached to the hybrids. Therefore, ING Group cannot exercise any influence on ING Insurance through holding the hybrids. The Commission therefore does not consider that the uncalled GHT1 would constitute any such linkage.

IV. CONCLUSION

(39)	For the reasons set out above, the Commission finds no grounds to depart from its previous assessment in the decision of 18 November 2009, and therefore does not authorise a call of the GHT1 hybrid under the presented conditions.

V. DECISION

The call of the GHT1 hybrid for the end of the year 2010 is not authorised.’

(1) OJ L 274, 19.10.2010, p. 139.

(2) In ING's investor day presentation by its CEO Jan Hommen: “Shaping our Future — Strategic priorities 2010” from 19 April 2010, page 20 states: “Currently no incentive for early repayment until appeal of EC decision is addressed”. http://www.ing.com/group/showdoc.jsp?docid=445250_EN&htmlid=445263_EN&menopt=ivr|qtr|irs&lang=en&menopt=ivr|qtr|irs&lang=EN

(3) 22 November 2010 USD 3 month-Libor was 0,284 %.

(4) OJ C 195, 19.8.2009, p. 9.

(5) In that regard, see the Commission press release of 8 October 2009 on Tier 1 and Tier 2 capital transactions for banks subject to a restructuring aid investigation. http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/09/441

(6) Commission Decision of 15 July 2010Bank of Ireland (not yet published), point 133; Commission Decision of 18 November 2009Lloyds Banking Group (OJ C 46, 24.2.2010, p. 2), point 112; Commission Decision of 14 December 2009RBS (OJ C 119, 7.5.2010, p. 1), point 104. Pending the adoption of a final decision, the Commission has not authorised a number of proposed hybrid capital calls in the case of ABN/Amro Fortis via service letters and e-mails.

(7) See for instance: FitchRatings Europe Special Report: Burden sharing and bank hybrid capital within the EU, 20 August 2009.

(8) However, even if insurance were divested and there were excess capital, at present the Commission is unconvinced that it should authorise the call because more rather than less capital would tend to reinforce the resilience of the Group, even in the present case where the capital is only usable on a gone concern basis by reassuring senior creditors as regards their claims in such a gone scenario.

		ISSN 1725-2423 doi:10.3000/17252423.C_2011.049.eng
Official Journal of the European Union		C 49

English edition	Information and Notices	Volume 54 16 February 2011

Notice No	Contents	page
	II Information
	INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	European Commission
2011/C 049/01	Non-opposition to a notified concentration (Case COMP/M.6090 — PZ Cussons/Wilmar Africa Investments/JV) ( 1 )	1

	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	European Parliament
2011/C 049/02	Decision of the Bureau of the European Parliament of 13 December 2010 and 14 February 2011 amending the Implementing Measures for the Statute for Members of the European Parliament	2

	Council
2011/C 049/03	Notice for the attention of the persons, entities and bodies to which restrictive measures provided for in Council Decision 2011/101/CFSP apply	4

	European Commission
2011/C 049/04	Euro exchange rates	5

2011/C 049/05	Commission communication in the framework of the implementation of Commission delegated Regulation (EU) No 1060/2010 supplementing Directive 2010/30/EU of the European Parliament and of the Council with regard to energy labelling of household refrigerating appliances ( 1 )	6

2011/C 049/06	Commission notice concerning the quantity not applied for to be added to the quantity fixed for the subperiod 1 April to 30 June 2011 under certain quotas opened by the European Union for pigmeat products	12

2011/C 049/07	Commission notice concerning the quantity not applied for to be added to the quantity fixed for the subperiod 1 April to 30 June 2011 under certain quotas opened by the European Union for poultrymeat, eggs and egg albumin	13

	Court of Auditors
2011/C 049/08	Special Report No 12/2010 EU Development Assistance for Basic Education in Sub-Saharan Africa and South Asia	14

	V Announcements
	ADMINISTRATIVE PROCEDURES
	European Commission
2011/C 049/09	Call for proposals — Civil Protection Financial Instrument — Projects on prevention and preparedness	15

	PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY
	European Commission
2011/C 049/10	Notice of initiation of an anti-dumping proceeding concerning imports of certain polyethylene terephthalate originating in Oman and Saudi Arabia	16

2011/C 049/11	Notice of initiation of an anti-subsidy proceeding concerning imports of certain polyethylene terephthalate originating in Oman and Saudi Arabia	21

	PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY
	European Commission
2011/C 049/12	State aid — The Netherlands (Articles 107 to 109 of the Treaty on the Functioning of the European Union) — State aid MC 10/09 — GHT1 hybrids call of ING ( 1 )	26

Quota order number	Quantities not applied for, to be added to the quantity fixed for the subperiod 1 April to 30 June 2011 (in kg)
09.4038	25 209 950
09.4170	3 541 500
09.4204	3 468 000

Quota order number	Quantities not applied for, to be added to the quantity fixed for the subperiod 1 April to 30 June 2011 (in kg)
09.4068	5 733 000
09.4070	882 750
09.4169	12 498 750
09.4015	108 000 000
09.4402	8 584 764
09.4091	140 000
09.4411	1 275 000
09.4421	175 000