14.5.2014

Official Journal of the European Union

C 144/2

Recommendation for a Council Regulation amending Regulation (EC) No 2532/98 concerning the powers of the European Central Bank to impose sanctions

(ECB/2014/19)

(presented by the European Central Bank)

(2014/C 144/02)

EXPLANATORY MEMORANDUM

I. INTRODUCTION

On 23 November 1998, the Council of the European Union adopted Council Regulation (EC) No 2532/98 (1). Taking account of the experience gained following several years of application of Regulation (EC) No 2532/98 in the various fields of competence of the European Central Bank (ECB) and the fact that the scope of the ECB’s powers to impose sanctions was extended by Council Regulation (EU) No 1024/2013 (2), certain amendments to Regulation (EC) No 2532/98 should now be considered. For this purpose, the procedure provided for in Article 129(4) of the Treaty on the Functioning of the European Union must be followed.

II. GENERAL CONSIDERATIONS

In order to carry out the tasks conferred on it by Regulation (EU) No 1024/2013, the ECB may, pursuant to Article 18 thereof, impose administrative pecuniary penalties ‘where credit institutions, financial holding companies, or mixed financial holding companies, intentionally or negligently, breach a requirement under relevant directly applicable acts of Union law in relation to which administrative pecuniary penalties shall be made available to competent authorities under the relevant Union law’ (3), and sanctions ‘in case of a breach of its regulations or decisions’ (4) (hereinafter jointly referred to as ‘administrative penalties’). As regards breaches of national law in the context of the Single Supervisory Mechanism (SSM), the national competent authorities remain competent to impose administrative penalties but are to only impose such penalties on credit institutions directly supervised by the ECB if the ECB requires them to initiate proceedings for this purpose.

The principles and procedures applicable to the imposition of administrative pecuniary penalties for breaches of directly applicable Union law under Article 18(1) of Regulation (EU) No 1024/2013 are laid down in Regulation (EU) No 1024/2013 and in Regulation (EU) No 468/2014 of the European Central Bank (ECB/2014/17) (5). Under Article 18(7) of Regulation (EU) No 1024/2013 the ECB may impose sanctions for breaches of ECB regulations and decisions in accordance with Regulation (EC) No 2532/98. Article 18(4) of Regulation (EU) No 1024/2013 provides that the ECB shall apply Article 18 in accordance with the acts referred to in the first subparagraph of Article 4(3) of Regulation (EU) No 1024/2013, including the procedures contained in Regulation (EC) No 2532/98, as appropriate.

Against this background, it is of particular importance to establish a coherent regime for the imposition by the ECB of all administrative penalties relating to the performance of its supervisory tasks under Regulation (EU) No 1024/2013.

Moreover, certain rules contained in Regulation (EC) No 2532/98 differ from those laid down in Regulation (EU) No 1024/2013. These relate in particular to the upper limits of fines and periodic penalty payments, procedural rules, and the limitation periods laid down in Regulation (EC) No 2532/98.

Therefore, the following amendments to Regulation (EC) No 2532/98 are recommended:

(a)	A new Article 1a should be inserted to define some general principles applying to administrative penalties imposed by the ECB in relation to its supervisory tasks and sanctions imposed in relation to its non-supervisory tasks and specify the scope of the different provisions applying to them.

(b)

New Articles 4a to 4c should be inserted concerning the regime applicable to administrative penalties imposed by the ECB in the exercise of its supervisory tasks. The purpose of these new articles is to achieve a differentiation between the regime applying to the imposition of administrative penalties by the ECB in relation to its supervisory tasks and the provisions applicable to sanctions that the ECB may impose in relation to its non-supervisory tasks. This is to ensure that a single regime applies to all ECB administrative penalties imposed in the supervisory field, while also taking into account the rules laid down in Regulation (EU) No 1024/2013.

(c)

Additional amendments should be made to ensure that the principles and procedures governing the imposition of sanctions laid down in Articles 2 to 4 of Regulation (EC) No 2532/98 are compatible with those governing the imposition by the ECB of administrative penalties in the exercise of its supervisory tasks under Regulation (EU) No 1024/2013.

III. COMMENTS ON THE ARTICLES

Article 1 — Definitions

Definition of periodic penalty payments

The definition of periodic penalty payments should be amended for two reasons. First, in line with other Union law provisions on this issue (6), it should be clearly spelled out that the ECB may use periodic penalty payments not only to punish a continued infringement, but also to compel undertakings to comply with an ECB regulation or decision. Second, the definition currently refers to the second subparagraph of Article 3(1) of Regulation (EC) No 2532/98 as regards the notification of a decision requiring the termination of an infringement. As a different decision-making procedure should apply to sanctions imposed in relation to the ECB’s supervisory tasks, reference to such procedure should be added in the definition.

As a result, the definition of ‘sanctions’ should also be amended so that the reference to periodic penalty payments being imposed ‘as a consequence of an infringement’ is deleted.

Article 1a – General principles and scope

While Regulation (EC) No 2532/98 lays down, in accordance with Article 34.3 of the Statute of the European System of Central Banks and of the European Central Bank, the conditions under which the ECB is entitled to impose sanctions on undertakings that fail to comply with obligations laid down in ECB regulations or decisions, due consideration needs to be given to Regulation (EU) No 1024/2013, which contains a wide range of provisions that are of direct relevance to the ECB’s powers to impose administrative penalties relating to the exercise of its supervisory tasks. Hence, while in principle the provisions of Regulation (EC) No 2532/98 apply to any sanction that the ECB is entitled to impose for breaches of ECB regulations or decisions, certain provisions of Regulation (EC) No 2532/98 that conflict with Regulation (EU) No 1024/2013 as regards the imposition of administrative penalties relating to the ECB’s supervisory tasks should be either disapplied or amended.

The ECB shall be entitled to publish any decision to impose an administrative penalty in relation to its supervisory tasks or a sanction in relation to its non-supervisory tasks, whether such decision is subject to an appeal or not, so that all decisions taken by the ECB are subject to the same publication regime. The ECB shall apply relevant Union law, irrespective of any national law or regulation, as regards such publication, and must accordingly consider the proportionality of the publication of a decision with regard to the degree of severity of the sanction or administrative penalty imposed, as well as the impact of the publication on the stability of the financial system.

Article 2 – Sanctions

Article 2(4) refers to the procedure provided for in Article 3(4) of Regulation (EC) No 2532/98, which should not apply to the imposition of administrative penalties relating to the ECB’s supervisory tasks. A reference to the decision-making procedure set out in Article 4b should therefore be added.

Article 3 – Procedural rules

The reference in the first sentence of Article 3(1) to the Executive Board as the body that is competent to initiate an infringement procedure should be deleted to allow the ECB to determine, by means of a Regulation to be adopted pursuant to Article 6(2), which internal body should carry out the investigation of an alleged breach. The competence to adopt decisions imposing a sanction shall remain with the Executive Board, subject to the new Article 4b.

Article 3(10) should be amended so that it does not only refer to tasks entrusted to the European System of Central Banks but also to tasks entrusted to the ECB pursuant to Article 127(6) of the Treaty. The last sentence of Article 3(10) should be amended to also reflect the ECB’s new supervisory competence.

Article 4a – Specific rules regarding the upper limits of sanctions imposed by the ECB in the exercise of its supervisory tasks

The upper limit of administrative pecuniary penalties the ECB may impose under Article 18(1) of Regulation (EU) No 1024/2013 for breaches of directly applicable Union law greatly exceeds that permissible under Regulation (EC) No 2532/98. This difference is not considered justifiable since an infringement of an ECB regulation or decision is not necessarily less serious than a breach of directly applicable Union law. Therefore, all administrative penalties imposed by the ECB on the credit institutions it supervises within the SSM should be subject to the same upper limits. The upper limit for periodic penalty payments imposed by the ECB in the supervisory field should also be amended in line with the above.

As a result, Article 2(1) should not apply to administrative penalties imposed by the ECB in the exercise of its supervisory tasks.

Article 4b – Specific procedural rules for sanctions imposed by the ECB in the exercise of its supervisory tasks

Article 25(2) of Regulation (EU) No 1024/2013 lays down the principle of separation, whereby tasks conferred on the ECB by Regulation (EU) No 1024/2013 shall be exercised separately from the monetary policy tasks and any other tasks of the ECB. Pursuant to this article, Regulation (EC) No 2532/98 should be amended to provide for a decision-making procedure involving the Supervisory Board and the Governing Council of the ECB, in line with Article 26 of Regulation (EU) No 1024/2013, as regards the imposition of administrative penalties in the supervisory field. This would also be in line with the Basel Committee on Banking Supervision’s Core Principles for Effective Banking Supervision (7) and the need to ensure that the authorities that impose sanctions on entities are also those which supervise them.

A decision to impose an administrative penalty taken by the Governing Council in the supervisory field will be subject to review by the Administrative Board of Review, as provided for under Article 24 of Regulation (EU) No 1024/2013, if a natural or legal person requests review of such decision, provided it is addressed to or is of direct and individual concern to that person. Consequently, Regulation (EC) No 2532/98 should be amended to provide for a review procedure involving the ECB’s Administrative Board of Review, in line with Article 24 of Regulation (EU) No 1024/2013, as regards the imposition of administrative penalties in the supervisory field.

In view of the above, Article 3(1) to (8) should not apply to administrative penalties relating to the exercise by the ECB of its supervisory tasks.

Article 4c – Specific time limits for administrative penalties imposed in the supervisory field

The time limits applicable to the imposition and enforcement of sanctions relating to the non-supervisory tasks of the ECB have proven to work well, particularly due to the relative simplicity of the investigation required to ascertain whether an infringement has been committed, e.g. breach of minimum reserve requirements, rules on the eligibility of collateral, statistical reporting requirements. Given the fact that investigations of alleged infringements in the supervisory field are more complex, the power to impose and enforce administrative penalties in that field should be subject to longer time limits than those provided for sanctions relating to non-supervisory tasks. This is also in line with the time limits laid down in Regulation (EC) No 1/2003 for infringements of competition rules. As all administrative penalties that the ECB may impose on undertakings in the supervisory field should be subject to the same time limits, whether these administrative penalties refer to a breach of an ECB decision or regulation or a breach of directly applicable Union law, the time limits set out in Article 4c should apply to any administrative penalties imposed by the ECB in the exercise of its supervisory tasks.

The suspension and interruption of these time limits should be regulated accordingly, also taking into account that infringement procedures in the supervisory field could overlap with criminal investigations and criminal proceedings that are based on the same facts.

In view of the above, Article 4 should not apply to administrative penalties relating to the exercise by the ECB of its supervisory tasks.

Recommendation for a:

‘COUNCIL REGULATION

amending Regulation (EC) No 2532/98 concerning the powers of the European Central Bank to impose sanctions

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union and in particular to Article 132(3) thereof,

Having regard to the Statute of the European System of Central Banks and of the European Central Bank, and in particular Article 34.3 thereof,

Having regard to the Recommendation of the European Central Bank,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the European Commission,

Acting in accordance with the procedure laid down in Article 129(4) of the Treaty and in Article 41 of the Statute of the European System of Central Banks and of the European Central Bank,

Whereas:

(1)

Regulation (EC) No 2532/98 (8) specifies, in accordance with Article 34.3 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the “Statute of the ESCB”), the limits and conditions under which the European Central Bank (ECB) is entitled to impose fines or periodic penalty payments on undertakings for failure to comply with obligations under its regulations and decisions.

(2)	The ECB has applied Regulation (EC) No 2532/98 to impose sanctions in its various fields of competence, including in particular the implementation of the monetary policy of the Union, the operation of payment systems and the collection of statistical information.

(3)

Council Regulation (EU) No 1024/2013 (9) entitles the ECB to impose on the credit institutions it supervises: (a) administrative pecuniary penalties when these institutions breach a requirement under directly applicable Union law; and (b) sanctions in the event of a breach of an ECB regulation or decision (hereinafter jointly referred to as “administrative penalties”).

(4)	Article 18(7) of Regulation (EU) No 1024/2013 provides that for the purposes of carrying out the tasks conferred on it by this regulation in case of breach of ECB regulations and decisions, the ECB may impose sanctions in accordance with Regulation (EC) No 2532/98.

(5)

Regulation (EU) No 1024/2013 contains a wide range of provisions that are directly relevant to the ECB’s powers to impose administrative penalties relating to its supervisory tasks. In this regard, certain provisions of Regulation (EC) No 2532/98 conflict with Regulation (EU) No 1024/2013. It is therefore necessary to identify the rules laid down in Regulation (EC) No 2532/98 that should be amended in order to establish a coherent regime governing the imposition of sanctions by the ECB in the exercise of the supervisory tasks conferred on it by Regulation (EU) No 1024/2013.

(6)

The ECB should publish decisions imposing administrative pecuniary penalties for breaches of directly applicable Union law and sanctions for breaches of ECB regulations or decisions, both in the supervisory and non-supervisory fields, unless such publication would be disproportionate, considering the degree of severity of the administrative pecuniary penalty or sanction imposed on an undertaking, or jeopardise the stability of financial markets.

(7)

The upper limit of a fine that the ECB may impose on an undertaking for failure to comply with an ECB regulation or decision in the supervisory field should not differ from the upper limit of a fine that the ECB may impose on an undertaking for a breach of directly applicable Union law, in order to ensure consistency in the treatment of equally serious infringements. All fines imposed by the ECB in the exercise of its supervisory tasks should therefore be subject to the same upper limits.

(8)

The ECB should be able to impose periodic penalty payments on undertakings in order to compel them to comply with ECB regulations or decisions in the supervisory field, or to put an end to a continued infringement thereof. The upper limit of periodic penalty payments should be commensurate with the upper limit of fines applicable in the supervisory field.

(9)

Article 25 of Regulation (EU) No 1024/2013 lays down the principle of separation, whereby the ECB carries out the tasks conferred on it by Regulation (EU) No 1024/2013 without prejudice to and separately from its tasks relating to monetary policy and any other tasks. In order to bolster this principle of separation, a Supervisory Board has been established pursuant to Article 26, which, inter alia, is responsible for preparing draft decisions for the Governing Council of the ECB in the supervisory field. In addition, the decisions taken by the Governing Council of the ECB are, under the conditions laid down in Article 24 thereof, subject to review by the Administrative Board of Review. Taking account of the principle of separation and the establishment of the Supervisory Board and the Administrative Board of Review, two distinct procedures should apply: (a) where the ECB contemplates the imposition of administrative penalties in the exercise of its supervisory tasks, decisions to this effect are taken by the Governing Council of the ECB based on a complete draft decision from the Supervisory Board and subject to review by the Administrative Board of Review; and (b) where the ECB contemplates the imposition of sanctions in the exercise of its non-supervisory tasks, decisions to this effect are taken by the Executive Board of the ECB and subject to review by the Governing Council of the ECB.

(10)

Due to the complexity of the investigation of infringements in the supervisory field, the power to impose and enforce administrative penalties relating to the supervisory tasks of the ECB should be subject to longer time limits than those provided for sanctions relating to the non-supervisory tasks of the ECB. The suspension and interruption of these time limits should be regulated accordingly, also taking into account that infringement procedures in the supervisory field may overlap with criminal investigations and criminal proceedings that are based on the same facts.

(11)	Regulation (EC) No 2532/98 should be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Amendments

Regulation (EC) No 2532/98 is amended as follows:

Article 1 is amended as follows:

(a)

point 6 is replaced by the following:

“‘periodic penalty payments’ shall mean amounts of money which, in the case of a continued infringement, an undertaking is obliged to pay either as a punishment, or with a view to forcing the persons concerned to comply with the ECB supervisory regulations and decisions. Periodic penalty payments shall be calculated for each day of continued infringement (a) following notification of the undertaking of a decision requiring the termination of such an infringement in accordance with the procedure laid down in the second subparagraph of Article 3(1); or (b) when the continued infringement falls under the scope of Article 18(7) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the ECB concerning policies relating to the prudential supervision of credit institutions (10) in accordance with the procedure laid down in Article 4b of this Regulation;

(10) OJ L 287, 29.10.2013, p. 63.”;"

(b)	point 7 is replaced by the following: “‘sanctions’ shall mean fines and periodic penalty payments.”;

the following Article 1a is inserted:

“Article 1a

General principles and scope

1. This Regulation shall apply to the imposition by the ECB of sanctions on undertakings for failure to comply with obligations arising from ECB decisions or regulations, unless otherwise expressly provided.

2. The rules applying to the imposition by the ECB, in the exercise of its supervisory tasks, of administrative pecuniary penalties for breaches of directly applicable Union law and of sanctions for breaches of ECB regulations and decisions (hereinafter jointly referred to as ‘administrative penalties’) shall derogate from the rules laid down in Articles 2 to 4 to the extent laid down in Articles 4a to 4c.

3. The ECB may publish any decision imposing on an undertaking administrative pecuniary penalties for breaches of directly applicable Union law and sanctions for breaches of ECB regulations or decisions, both in the supervisory and non-supervisory fields, whether such decision has been appealed or not. The ECB shall carry out such publication in accordance with relevant Union law, irrespective of any national law or regulation and, where relevant Union law is composed of Directives, of any national legislation transposing those Directives.”;

in Article 2, paragraph 4 is replaced by the following:

“4. Whenever the infringement consists of a failure to perform a duty, the application of a sanction shall not exempt the undertaking from its performance, unless the decision adopted in accordance with Article 3(4) or Article 4b explicitly states the contrary.”;

Article 3 is amended as follows:

(a)

the first sentence of paragraph 1 is replaced by the following:

“The decision on whether to initiate an infringement procedure shall be taken by the ECB, acting on its own initiative or on the basis of a motion to that effect addressed to it by the national central bank of the Member State in whose jurisdiction the alleged infringement has occurred.”;

(b)

paragraph 10 is replaced by the following:

“If an infringement relates exclusively to a task entrusted to the ESCB or the ECB under the Treaty and the Statute of the ESCB, an infringement procedure may be initiated only on the basis of this Regulation, irrespective of the existence of any national law or regulation which may provide for a separate procedure. If an infringement also relates to one or more areas outside the competence of the ESCB or the ECB, the right to initiate an infringement procedure on the basis of this Regulation shall be independent of any right of a competent national authority to initiate separate procedures in relation to such areas outside the competence of the ESCB or the ECB. This provision shall be without prejudice to the application of criminal law and of national law relating to prudential supervisory competencies in participating Member States, in accordance with Council Regulation (EU) No 1024/2013.”;

the following Articles 4a to 4c are inserted:

“Article 4a

Specific rules regarding the upper limits of sanctions imposed by the ECB in the exercise of its supervisory tasks

1. By way of derogation from Article 2(1), in the case of infringements relating to decisions and regulations adopted by the ECB in the exercise of its supervisory tasks, the limits within which the ECB may impose fines and periodic penalty payments shall be as follows.

(a)	Fines: the upper limit shall be twice the amount of the profits gained or losses avoided because of the infringement where these can be determined, or 10 % of the total annual turnover of the undertaking.

(b)	Periodic penalty payments: the upper limit shall be 5 % of the average daily turnover per day of infringement. Periodic penalty payments may be imposed in respect of a maximum period of six months from the date stipulated in the decision imposing the periodic penalty payment.

2. For the purpose of paragraph 1: (a) ‘annual turnover’ means the annual turnover of a legal person, as defined in relevant Union law, according to the most recently available annual financial accounts of such person. Where the undertaking is a subsidiary of a parent undertaking, the relevant total annual turnover shall be the total annual turnover resulting from the most recently available consolidated annual financial accounts of the ultimate parent undertaking in the group supervised by the ECB; (b) ‘average daily turnover’ means the annual turnover, as defined under (a), divided by 365.

Article 4b

Specific procedural rules for sanctions imposed by the ECB in the exercise of its supervisory tasks

1. By way of derogation from Article 3(1) to (8), the rules laid down in this Article shall apply to infringements relating to decisions and regulations adopted by the ECB in the exercise of its supervisory tasks.

2. After the infringement procedure has been carried out pursuant to rules to be laid down by the ECB in accordance with Article 6(2), the Supervisory Board shall propose to the Governing Council a complete draft decision to impose a sanction on the undertaking concerned, in accordance with the procedure laid down in Article 26(8) of Regulation (EU) No 1024/2013. A hearing with regard to the alleged infringement committed by the undertaking concerned shall precede the submission by the Supervisory Board of the complete draft decision to the Governing Council.

3. The undertaking concerned shall have the right to request a review by the Administrative Board of Review of the decision taken by the Governing Council pursuant to paragraph 2, in accordance with the procedure laid down in Article 24 of Regulation (EU) No 1024/2013.

Article 4c

Specific time limits for administrative penalties imposed by the ECB in the exercise of its supervisory tasks

1. By way of derogation from Article 4, the right to take a decision to impose an administrative penalty, with regard to infringements relating to relevant directly applicable acts of Union law as well as to decisions and regulations adopted by the ECB in the exercise of its supervisory tasks, shall expire five years after the infringement occurred or, in the case of a continued infringement, five years after the infringement ceased.

2. Any action taken by the ECB for the purposes of the investigation or proceedings with respect to an infringement shall cause the time limit laid down in paragraph 1 to be interrupted. The limitation period shall be interrupted with effect from the date on which the action is notified to the supervised entity concerned. Each interruption shall cause the time limit to recommence. However, the time limit shall not exceed a period of 10 years after the infringement occurred or, in the case of a continued infringement, 10 years after the infringement ceased.

3. The time limits described in the preceding paragraphs can be extended if: (a) a decision of the Governing Council is subject to review before the Administrative Board of Review or appeal proceedings before the Court of Justice of the European Union; or (b) criminal proceedings are pending against the concerned undertaking in connection with the same facts. In such a case, the time limits described in the previous paragraphs shall be extended for the period of time it takes for the Administrative Board of Review or the Court of Justice to review the decision or until conclusion of the criminal proceedings against the concerned undertaking.

4. Any action of the ECB designed to enforce payment or payment terms and conditions under the imposed administrative penalty shall cause the limitation period for the enforcement to be interrupted. The right of the ECB to enforce a decision to impose an administrative penalty shall expire five years after such decision has been taken. The limitation period for the enforcement of administrative penalties shall be suspended:

(a)	until the deadline for payment of the imposed administrative penalty has passed;

(b)	if enforcement of payment of the imposed administrative penalty is suspended pursuant to a decision of the Governing Council or of the Court of Justice.”

Article 2

This Regulation shall enter into force on [date].

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty.’

Done at Frankfurt am Main, 16 April 2014.

The President of the ECB

Mario DRAGHI

(1) Council Regulation (EC) No 2532/98 of 23 November 1998 concerning the powers of the European Central Bank to impose sanctions (OJ L 318, 27.11.1998, p. 4). The European Central Bank had previously submitted to the Council its Recommendation ECB/1998/9 for a Council Regulation (EC) concerning the powers of the European Central Bank to impose sanctions (OJ C 246, 6.8.1998, p. 9).

(2) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the ECB concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).

(3) Article 18(1) of Regulation (EU) No 1024/2013.

(4) Article 18(7) of Regulation (EU) No 1024/2013.

(5) Regulation (EU) No 468/2014 of the European Central Bank of 16 April 2014 establishing the framework for cooperation within the Single Supervisory Mechanism between the European Central Bank and national competent authorities and with national designated authorities (SSM Framework Regulation) (ECB/2014/17) (OJ L 141, 14.5.2014, p. 1).

(6) See e.g. the second subparagraph of Article 4 of Commission Delegated Regulation (EU) No 946/2012 of 12 July 2012 supplementing Regulation (EC) No 1060/2009 of the European Parliament and of the Council with regard to rules of procedure on fines imposed to credit rating agencies by the European Securities and Markets Authority, including rules on the right of defence and temporal provisions (OJ L 282, 16.10.2012, p. 23); Article 66(1) of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1); Article 16(1) of Commission Implementing Regulation (EU) No 646/2012 of 16 July 2012 laying down detailed rules on fines and periodic penalty payments pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (OJ L 187, 17.7.2012, p. 29); Article 36b(1) of Regulation (EU) No 513/2011 of 11 May 2011 of the European Parliament and of the Council amending Regulation (EC) No 1060/2009 on credit rating agencies (OJ L 145, 31.5.2011, p. 30); Article 25(1)(b) of Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC (OJ L 79, 19.3.2008, p. 1); Article 15 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1); Article 24 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(7) See Principle 1, and in particular Essential Criterion 6(b), and Principle 11, and in particular Essential Criterion 7 of the Basel Committee on Banking Supervision’s Core Principles for Effective Banking Supervision, September 2012, both of which require an effective system of banking supervision to have clear responsibilities and objectives for each authority involved in the supervision of banks and banking groups, including the power for the supervisor to impose a range of sanctions, and also require the supervisor to have at its disposal an adequate range of supervisory tools to bring about timely corrective actions, including imposing sanctions on banks. Available on the Bank for International Settlements’ website at www.bis.org

(8) Council Regulation (EC) No 2532/98 of 23 November 1998 concerning the powers of the European Central Bank to impose sanctions (OJ L 318, 27.11.1998, p. 4).

(9) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).

14.5.2014

Official Journal of the European Union

C 144/14

Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain candles, tapers and the like originating in the People’s Republic of China

(2014/C 144/05)

Following the publication of a notice of impending expiry (1) of the anti-dumping measures in force on the imports of certain candles, tapers and the like originating in the People’s Republic of China, the European Commission (‘the Commission’) has received a request for review pursuant to Article 11(2) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (2) (‘the basic Regulation’).

1. Request for review

The request was lodged on 14 February 2014 by candles producers in the EU (‘the applicants’) representing more than 25 % of the total Union production of certain candles, tapers and the like.

2. Product under review

The product subject to this review is candles, tapers and the like, other than memory lights and other outdoor burners (‘the product under review’), currently falling within CN code ex 3406 00 00 and originating in the People's Republic of China.

For the purposes of this review, ‘memory lights and other outdoor burners’ means candles, tapers and the like which have one or more of the following characteristics:

(a)	their fuel contains more than 500 ppm of toluene;

(b)	their fuel contains more than 100 ppm benzene;

(c)	they have a wick with a diameter of at least 5 mm;

(d)	they are individually contained in a plastic container with vertical walls of at least 5 cm in height.

3. Existing measures

The measures currently in force are a definitive anti-dumping duty imposed by Council Regulation (EC) No 393/2009 (3).

4. Grounds for the review

The request is based on the grounds that the expiry of the measures would be likely to result in continuation of dumping and recurrence of injury to the Union industry.

4.1. Allegation of likelihood of continuation of dumping

Since, in view of the provisions of Article 2(7) of the basic Regulation, the People’s Republic of China (‘the country concerned’) is considered to be a non-market economy country, the applicants established normal value for the imports from the country concerned on the basis of the price in a market economy third country, namely Brazil. The allegation of likelihood of continuation/recurrence of dumping is based on a comparison of the normal value thus established with the export price (at ex-works level) of the product under review when sold for export to the Union.

On this basis, the dumping margins calculated for the country concerned are significant for the high-volume low-priced segment of the product under review as well as for a significant share of the high-end segment of the product under review.

4.2. Allegation of likelihood of recurrence of injury

The applicants allege the likelihood of recurrence of injury.

The applicants have provided prima facie evidence that, should measures be allowed to lapse, the current import level of the product under review from the country concerned to the Union is likely to increase at injurious price level. This is so due to the existence of unused capacity and the potential of the manufacturing facilities of the exporting producers in the country concerned. Other important factors are the existence of trade barriers for the country concerned in the USA and the attractiveness of the Union market.

The applicants finally allege that the partial removal of injury has been mainly due to the existence of measures and that any further substantial increase in imports at dumped prices from the country concerned would likely lead to a recurrence of injury to the Union Industry should measures be allowed to lapse.

5. Procedure

Having determined, after having consulted the Committee established by Article 15(1) of the basic Regulation in accordance with Article 11(6) of the basic Regulation, that sufficient evidence exists to justify the initiation of an expiry review, the Commission hereby initiates a review in accordance with Article 11(2) of the basic Regulation.

5.1. Procedure for the determination of a likelihood of continuation/recurrence of dumping

Exporting producers (4) of the product under review from the country concerned, including those that did not cooperate in the investigation leading to the measures in force, are invited to participate in the Commission investigation.

5.1.1. Investigating exporting producers

(a) Sampling

In view of the potentially large number of exporting producers in the country concerned involved in this expiry review and in order to complete the investigation within the statutory time limits, the Commission may limit the exporting producers to be investigated to a reasonable number 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 exporting producers, or representatives acting on their behalf, including the ones who did not cooperate in the investigation leading to the measures subject to the present review, are hereby requested to make themselves known to the Commission. These parties have to 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 information on their company(ies) requested in Annex I to this notice.

In order to obtain the information it deems necessary for the selection of the sample of exporting producers, the Commission will also contact the authorities of the country concerned and may contact any known associations of exporting producers.

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 exporting producers may be selected based on the largest representative volume of exports to the Union which can reasonably be investigated within the time available. All known exporting producers, the authorities of the country concerned and associations of exporting producers will be notified by the Commission, via the authorities of the country concerned if appropriate, of the companies selected to be in the sample.

In order to obtain the information it deems necessary for its investigation with regard to exporting producers, the Commission will send questionnaires to the exporting producers selected to be in the sample, to any known association of exporting producers and to the authorities of the country concerned.

All exporting producers selected to be in the sample, any known association of exporting producers and the authorities of the country concerned will have to submit a completed questionnaire within 37 days from the date of notification of the sample selection, unless otherwise specified.

Without prejudice to the possible application of Article 18 of the basic Regulation, companies that have agreed to their possible inclusion in the sample but are not selected to be in the sample will be considered to be cooperating (‘non-sampled cooperating exporting producers’)

5.1.2. Additional procedure with regard to exporting producers in the non-market economy country concerned

In accordance with Article 2(7)(a) of the basic Regulation, in the case of imports from the country concerned normal value will be determined on the basis of the price or constructed value in a market economy third country.

In the previous investigation, the prices actually paid or payable in the Union for the like product were used for the purpose of establishing normal value in respect of the country concerned. However, for the purpose of the current investigation, the Commission envisages using Brazil as a market economy third country. Interested parties are hereby invited to comment on the appropriateness of this choice within 10 days of the date of publication of this notice in the Official Journal of the European Union. According to the information available to the Commission, other market economy suppliers of the Union may be located inter alia in Thailand, USA, Dominican Republic and Malaysia. The Commission will examine whether there is production and sales of the product under investigation in those market economy third countries for which there are indications that production of the product under investigation is taking place.

5.1.3. Investigating unrelated importers (5) (6)

Unrelated importers of the product under review from the country concerned to the Union are invited to participate in this investigation.

In view of the potentially large number of unrelated importers involved in this expiry review 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, including the ones who did not cooperate in the investigation leading to the measures subject to the present review, are hereby requested to make themselves known to the Commission. These parties must 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 information on their company(ies) requested in Annex II to this notice.

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

If a sample is necessary, the importers may be selected based on the largest representative volume of sales of the product under review 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.

5.2. Procedure for the determination of a likelihood of continuation/recurrence of injury - Investigating Union producers

In order to establish whether there is a likelihood of recurrence of injury to the Union industry, Union producers of the product under review are invited to participate in the Commission investigation.

In view of the large number of Union producers involved in this expiry review and in order to complete the investigation within the statutory 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). Other Union producers, or representatives acting on their behalf, including Union producers who did not cooperate in the investigation(s) leading to the measures in force, that consider that there are reasons why they should be included in the sample must contact the Commission 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 other 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/or 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 associations 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.

5.3. Procedure for the assessment of Union interest

Should the likelihood of continuation or recurrence of dumping and injury be confirmed, a decision will be reached, pursuant to Article 21 of the basic Regulation, as to whether maintaining the anti-dumping measures would not 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 review.

Parties that make themselves known within the above deadline may provide the a 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 must 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 must be made in writing and must 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 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 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’ (7).

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 must 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 information may be disregarded.

Interested parties are invited to make all submissions and requests by e-mail including scanned powers of attorney and certification sheets, with the exception of voluminous replies which shall be submitted on a CD-ROM or DVD by hand or by registered mail. By using e-mail, interested parties express their agreement with the rules applicable to electronic submissions contained in the document ‘CORRESPONDENCE WITH THE EUROPEAN COMMISSION IN TRADE DEFENCE CASES’ published on the website of the Directorate-General for Trade: http://trade.ec.europa.eu/doclib/docs/2011/june/tradoc_148003.pdf The interested parties must indicate their name, address, telephone and a valid e-mail address and they should ensure that the provided e-mail address is a functioning official business e-mail which is checked on a daily basis. Once contact details are provided, the Commission will communicate with interested parties by e-mail only, unless they explicitly request to receive all documents from the Commission by another means of communication or unless the nature of the document to be sent requires the use of a registered mail. For further rules and information concerning correspondence with the Commission including principles that apply to submissions by e-mail, interested parties should consult the communication instructions with interested parties referred to above.

Commission address for correspondence:

European Commission

Directorate-General for Trade

Directorate H

Office: N105 08/020

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

E-mail

TRADE-CANDLES-REVIEW-INJURY@EC.EUROPA.EU

TRADE-CANDLES-REVIEW-DUMPING@EC.EUROPA.EU

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, 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.

Failure to give a computerised response shall not be deemed to constitute non-cooperation, provided that the interested party shows that presenting the response as requested would result in an unreasonable extra burden or unreasonable additional cost. The interested party should immediately contact the Commission.

7. Hearing Officer

Interested parties may request the intervention of the Hearing Officer for 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 regarding the confidentiality of documents, requests for extension of time limits and requests by third parties to be heard. The Hearing Officer may organise 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 other things, to the likelihood of a continuation or recurrence of dumping and injury and Union interest.

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/commission_2010-2014/degucht/contact/hearing-officer/

8. Schedule of the investigation

The investigation will be concluded, pursuant to Article 11(5) of the basic Regulation within 15 months of the date of the publication of this notice in the Official Journal of the European Union.

9. Possibility to request a review under Article 11(3) of the basic Regulation

As this expiry review is initiated in accordance with the provisions of Article 11(2) of the basic Regulation, the findings thereof will not lead to the existing measures being amended but will lead to those measures being repealed or maintained in accordance with Article 11(6) of the basic Regulation.

If any interested party considers that a review of the measures is warranted so as to allow for the possibility to amend the measures, that party may request a review pursuant to Article 11(3) of the basic Regulation.

Parties wishing to request such a review, which would be carried out independently of the expiry review mentioned in this notice, may contact the Commission at the address given above.

10. 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 (8).

(1) OJ C 270, 19.9.2013, p. 11.

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

(3) OJ L 119, 14.5.2009, p. 1.

(4) An exporting producer is any company in the country concerned which produces and exports the product under review 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 under review.

(5) 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 footnotes 5 and 8 of the Annexes I and II to this Notice.

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

(7) 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).

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

ANNEX I

ANNEX II

14.5.2014

Official Journal of the European Union

C 144/27

Corrigendum to Authorisation for State aid pursuant to Articles 107 and 108 TFEU — Cases where the Commission raises no objections

( Official Journal of the European Union C 117 of 16 April 2014 )

(2014/C 144/09)

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		ISSN 1977-091X
Official Journal of the European Union		C 144

English edition	Information and Notices	Volume 57 14 May 2014

Notice No	Contents	page
	II Information
	INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	European Commission
2014/C 144/01	Non-opposition to a notified concentration (Case M.7170 — Discovery Communications/Eurosport) ( 1 )	1

	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
	European Commission
2014/C 144/03	Euro exchange rates	11
2014/C 144/04	Commission Decision of 13 May 2014 appointing members and alternates of the Paediatric Committee to represent health professionals and patient associations ( 1 )	12

	V Announcements
	PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY
	European Commission
2014/C 144/05	Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain candles, tapers and the like originating in the People’s Republic of China	14
	PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY
	European Commission
2014/C 144/06	Prior notification of a concentration (Case M.7235 — SPC/Cargill/Golden Compound JV) — Candidate case for simplified procedure ( 1 )	24
2014/C 144/07	Prior notification of a concentration (Case M.7225 — Allianz/Rei Investment/Fiumaranuova) — Candidate case for simplified procedure ( 1 )	25
2014/C 144/08	Prior notification of a concentration (Case M.7248 — Cinven/Skandia) — Candidate case for simplified procedure ( 1 )	26

	Currency	Exchange rate
USD	US dollar	1,3703
JPY	Japanese yen	140,25
DKK	Danish krone	7,4639
GBP	Pound sterling	0,81395
SEK	Swedish krona	8,9910
CHF	Swiss franc	1,2201
ISK	Iceland króna
NOK	Norwegian krone	8,1300
BGN	Bulgarian lev	1,9558
CZK	Czech koruna	27,404
HUF	Hungarian forint	303,33
LTL	Lithuanian litas	3,4528
PLN	Polish zloty	4,1854
RON	Romanian leu	4,4313
TRY	Turkish lira	2,8393
AUD	Australian dollar	1,4625
CAD	Canadian dollar	1,4935
HKD	Hong Kong dollar	10,6222
NZD	New Zealand dollar	1,5850
SGD	Singapore dollar	1,7167
KRW	South Korean won	1 401,13
ZAR	South African rand	14,1415
CNY	Chinese yuan renminbi	8,5375
HRK	Croatian kuna	7,5890
IDR	Indonesian rupiah	15 783,63
MYR	Malaysian ringgit	4,4377
PHP	Philippine peso	59,984
RUB	Russian rouble	47,8174
THB	Thai baht	44,699
BRL	Brazilian real	3,0359
MXN	Mexican peso	17,7166
INR	Indian rupee	81,7015

	III Preparatory acts

	European Central Bank
2014/C 144/02	Recommendation for a Council Regulation amending Regulation (EC) No 2532/98 concerning the powers of the European Central Bank to impose sanctions (ECB/2014/19) (presented by the European Central Bank)	2

	Corrigenda
2014/C 144/09	Corrigendum to Authorisation for State aid pursuant to Articles 107 and 108 TFEU — Cases where the Commission raises no objections ( OJ C 117, 16.4.2014 )	27