RECOMMENDATION OF THE EUROPEAN SYSTEMIC RISK BOARD

of 2 December 2021

on a pan-European systemic cyber incident coordination framework for relevant authorities

(ESRB/2021/17)

(2022/C 134/01)

THE GENERAL BOARD OF THE EUROPEAN SYSTEMIC RISK BOARD,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to the Agreement on the European Economic Area (1), in particular Annex IX thereof,

Having regard to Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board (2), and in particular Article 3(2)(b) and (d) and Articles 16 and 18 thereof,

Having regard to Decision ESRB/2011/1 of the European Systemic Risk Board of 20 January 2011 adopting the Rules of Procedure of the European Systemic Risk Board (3), and in particular Articles 18 to 20 thereof,

Whereas:

(1)

As noted in recital 4 of Recommendation ESRB/2013/1 of the European Systemic Risk Board (4), the ultimate objective of macroprudential policy is to contribute to safeguarding the stability of the financial system as a whole, including by strengthening the resilience of the financial system and decreasing the build-up of systemic risks, thereby ensuring a sustainable contribution of the financial sector to economic growth. The European Systemic Risk Board (ESRB) is responsible for the macroprudential oversight of the financial system within the Union. In fulfilling its mandate, the ESRB should contribute to the prevention and mitigation of systemic risks to financial stability, including those related to cyber incidents, and propose how these risks might be mitigated.

(2)

Major cyber incidents may pose a systemic risk to the financial system given their potential to disrupt critical financial services and operations. The amplification of an initial shock can either occur through operational or financial contagion or through an erosion of confidence in the financial system. If the financial system is unable to absorb these shocks, financial stability will be at risk and this situation can result in a systemic cyber crisis (5).

(3)

The constantly evolving cyber threat landscape and recent increase of major cyber incidents are indicators of greater risk to financial stability in the Union. The COVID-19 pandemic has highlighted the importance of the role technology plays in allowing the financial system to operate. Relevant authorities and institutions needed to adapt their technical infrastructure and risk management frameworks to a sudden increase in remote working, which has increased the overall exposure of the financial system to cyber threats and allowed criminals both to devise new modi operandi and to adapt existing ones to exploit the situation (6). Against this background, the number of cyber incidents reported to ECB Banking Supervision in 2020 increased by 54 % compared with 2019 (7).

(4)

A major cyber incident’s potentially large scale, speed and rate of propagation call for an effective response from the relevant authorities to mitigate the potential negative effects on financial stability. Swift coordination and communication among relevant authorities at Union level can assist in early assessment of a major cyber incident’s impact on financial stability, maintaining confidence in the financial system and limiting contagion to other financial institutions and thus contribute to preventing a major cyber incident from becoming a risk to financial stability.

(5)

The underlying shock originates in a novel way compared to the traditional financial and liquidity crises relevant authorities usually face. Aside from financial aspects, the overall risk assessment must include the scale and impact of operational disruptions as these might influence the choice of macroprudential tools. Likewise, financial stability might also influence the choice of operational mitigants by cyber experts. This calls for close and swift coordination and open communication to, inter alia, build situational awareness.

(6)

The risk of a coordination failure by authorities exists and needs to be addressed. Relevant authorities in the Union will need to coordinate among themselves and with other authorities such as the European Union Agency for Network and Information Security (ENISA) with which they might not usually interact. As a significant number of Union financial institutions operate globally, a major cyber incident will likely not be limited to the Union or might be triggered outside the Union and might require global response coordination.

(7)

The relevant authorities need to be prepared for these interactions. Otherwise, they might risk taking inconsistent actions that contradict or jeopardise other authorities’ responses. Such a coordination failure could amplify the shock for the financial system by leading to an erosion of confidence in the functioning of the financial system which, in the worst-case scenario, would pose a risk to financial stability (8).Thus, the necessary steps should be taken to address the risk to financial stability stemming from a coordination failure in the event of a major cyber incident.

(8)

The ESRB (2021) report Mitigating systemic cyber risk (9) identifies the need to establish a pan-European systemic cyber incident coordination framework (EU-SCICF) for relevant authorities in the Union. The objective of the EU-SCICF would be to increase relevant authorities’ level of preparedness to facilitate a coordinated response to a potentially major cyber incident. The ESRB (2021) report Mitigating systemic cyber risk provides the ESRB’s assessment on the framework characteristics that would be needed, prima facie, in order to address the risk of a coordination failure.

(9)

The key objective of this Recommendation is to build on one of the envisaged roles of the European Supervisory Authorities (ESAs) under the proposal for a Regulation of the European Parliament and of the Council on digital operational resilience for the financial sector (10) (hereinafter ‘DORA’) of gradually enabling an effective Union-level coordinated response in the event of a major cross-border information and communication technologies (ICT) related incident or related threat having a systemic impact on the Union’s financial sector as a whole. This process will lead to the creation of the EU-SCICF for relevant authorities.

(10)

The EU-SCICF should not aim to replace existing frameworks but to bridge any coordination and communication gaps between the relevant authorities themselves and with other authorities in the Union and other key actors at international level. In this respect, the positioning of the EU-SCICF in the existing financial crisis framework and Union cyber incident framework landscape should be considered. Regarding coordination among the relevant authorities themselves, consideration should be given, but not be limited to, the roles and activities of the Network and Information Systems (NIS) Cooperation Group for financial entities under Directive (EU) 2016/1148 of the European Parliament and of the Council (11), and the coordination mechanisms envisaged through the establishment of the Joint Cyber Unit alongside the involvement of ENISA.

(11)

In particular, the proposal to launch the preparation of the EU-SCICF aims to endorse the potential roles of the ESAs, as envisaged by the DORA proposal. DORA proposes that ‘the ESAs, through the Joint Committee and in collaboration with competent authorities, the European Central Bank (ECB) and the ESRB, may establish mechanisms to enable the sharing of effective practices across financial sectors to enhance situational awareness and identify common cyber vulnerabilities and risks across-sectors’ and ‘may develop crisis-management and contingency exercises involving cyberattack scenarios with a view to develop communication channels and gradually enable an effective EU-level coordinated response in the event of a major cross-border ICT-related incident or related threat having a systemic impact on the Union’s financial sector as a whole’ (12). A pan-European framework such as the EU-SCICF does not yet exist and should be established and developed in the context of DORA.

(12)

Given the risk to financial stability in the Union stemming from cyber risk, preparatory work for the gradual establishment of the EU-SCICF should, to the extent feasible, start even before the required legal and policy framework for its establishment is fully applicable. This legal and policy framework would be completed fully and finalised once the relevant provisions of DORA and of its delegated acts become applicable.

(13)

Effective communication contributes to situational awareness among relevant authorities and is thus an indispensable prerequisite for Union-wide coordination during major cyber incidents. In this respect, the communication infrastructure needed to coordinate on a response to a major cyber incident should be defined. This would imply specifying the type of information that needs to be shared, the regular channels to be used to share such information and the contact points with which information should be shared. Information sharing must respect existing legal requirements. In addition, a clear action plan and the protocols to be followed may need to be defined by the relevant authorities to ensure proper coordination among the authorities involved in planning a coordinated response to a major cyber incident.

(14)

A systemic cyber crisis will require the setting in motion of full cooperation at national and Union level. Therefore, the designation of points of contact for the ESAs, the ECB and each Member State from among its relevant national authorities, which should be communicated to the ESAs, may be envisaged to establish the main interlocutors in the coordination scheme of the EU-SCICF to be informed in case of a major cyber incident. The need to designate points of contact should be assessed during the development of the EU-SCICF, taking into account the designated single point of contact under Directive (EU) 2016/1148 that Member States have established on the security of network and information systems to ensure cross-border cooperation with other Member States and with the NIS Cooperation Group (13).

(15)

The conduct of crisis management and contingency exercises could facilitate the implementation of the EU-SCICF and allow authorities to evaluate their readiness and preparedness for a systemic cyber crisis at Union level. Such exercises would provide authorities with lessons learnt and would enable continuous improvement and evolution of the EU-SCICF.

(16)

For the development of the EU-SCICF it is essential that the ESAs jointly carry out relevant preparatory work to consider the potential key elements of the framework and the required resources and needs to proceed with its development. After this, the ESAs could start work on a preliminary analysis of any impediments that could hinder the ESAs and relevant authorities’ abilities to establish the EU-SCICF and to share relevant information through communication channels in case of a major cyber incident. Such analysis would be an important step informing any further action, either of legislative nature or other supporting initiatives that the European Commission may take in the post-DORA implementation stage,

HAS ADOPTED THIS RECOMMENDATION:

SECTION 1

RECOMMENDATIONS

Recommendation A – Establishment of a pan-European systemic cyber incident coordination framework (EU-SCICF)

1.

It is recommended that, as envisaged in the Commission’s proposal for a Regulation of the European Parliament and of the Council on digital operational resilience for the financial sector (hereinafter ‘DORA’), the European Supervisory Authorities (ESAs), jointly through the Joint Committee, and together with the European Central Bank (ECB), the European Systemic Risk Board (ESRB) and relevant national authorities, start preparing for the gradual development of an effective Union-level coordinated response in the event of a cross-border major cyber incident or related threat that could have a systemic impact on the Union’s financial sector. Preparatory work towards a Union-level coordinated response should entail the gradual development of EU-SCICF for the ESAs, the ECB, the ESRB and relevant national authorities. This also should include an assessment of the resource requirements for the effective development of the EU-SCICF.

2.

It is recommended that the ESAs undertake, in view of sub-Recommendation A(1), in consultation with the ECB and the ESRB, a mapping and subsequent analysis of current impediments, legal and other operational barriers for the effective development of the EU-SCICF.

Recommendation B – Establishment of points of contact of the EU-SCICF

It is recommended that the ESAs, the ECB and each Member State among their relevant national authorities should designate a main point of contact which should be communicated to the ESAs. This contact list will facilitate the development of the framework and, once the EU-SCICF is in place, the points of contact and the ESRB should be informed in case of a major cyber incident. Co-ordination should also be envisaged between the EU-SCICF and the designated single point of contact under Directive (EU) 2016/1148 that Member States have established on the security of network and information systems to ensure cross-border cooperation with other Member States and with the Network and Information Systems Cooperation Group.

Recommendation C – Appropriate measures at Union level

It is recommended that, based on the result of the analyses carried out in accordance with Recommendation A, the Commission should consider the appropriate measures needed to ensure effective coordination of responses to systemic cyber incidents.

SECTION 2

IMPLEMENTATION

1.   Definitions

For the purposes of this Recommendation the following definitions apply:

(a)	‘cyber’ means relating to, within, or through the medium of the interconnected information infrastructure of interactions among persons, processes, data, and information systems (14);

(b)	‘major cyber incident’ means an ICT-related incident with a potentially high adverse impact on the network and information systems that support critical functions of financial entities (15);

(c)

‘systemic cyber crisis’ means a major cyber incident that causes a level of disruption in the Union financial system potentially entailing serious negative consequences for the smooth operation of the internal market and the functioning of the real economy. Such a crisis could result from a major cyber incident causing shocks in a number of channels, including operational, confidence and financial;

(d)

‘European Supervisory Authorities’ or the ‘ESAs’ means the European Supervisory Authority (European Banking Authority) established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council (16), together with the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council (17) and the European Supervisory Authority (European Securities and Markets Authority) established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council (18);

(e)	‘Joint Committee’ means the Joint Committee of the European Supervisory Authorities established in Article 54 of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010 and of Regulation (EU) No 1095/2010;

(f)

‘relevant national authority’ means: (1) a competent or supervisory authority in a Member State as specified in the Union acts referred to in Article 1(2) of Regulation (EU) No 1093/2010, of Regulation (EU) No 1094/2010 and of Regulation (EU) No 1095/2010 and any other national competent authority as specified in Union acts that confer tasks on the ESAs; (2) a competent authority in a Member State designated in accordance with: (i) Article 4 of Directive 2013/36/EU of the European Parliament and of the Council (19), without prejudice to the specific tasks conferred on the ECB by Council Regulation (EU) No 1024/2013 (20); (ii) Article 22 of Directive (EU) 2015/2366 of the European Parliament and of the Council (21); (iii) Article 37 of Directive 2009/110/EC of the European Parliament and of the Council (22); (iv) Article 4 of Directive (EU) 2019/2034 of the European Parliament and of the Council (23); (v) the first indent of point (ee) of Article 3(1) of the proposal for a Regulation of the European Parliament and of the Council on Markets in Crypto-assets, and amending Directive (EU) 2019/1937 (24); (vi) Article 11 of Regulation (EU) No 909/2014 of the European Parliament and of the Council (25); (vii) Article 22 of Regulation (EU) No 648/2012 of the European Parliament and of the Council (26); (viii) Article 67 of Directive 2014/65/EU of the European Parliament and of the Council (27); (ix) Article 22 of Regulation (EU) No 648/2012; (x) Article 44 of Directive 2011/61/EU of the European Parliament and of the Council (28); (xi) Article 97 of Directive 2009/65/EC of the European Parliament and of the Council (29); (xii) Article 30 of Directive 2009/138/EC of the European Parliament and of the Council (30); (xiii) Article 12 of Directive (EU) 2016/97 of the European Parliament and of the Council (31); (xiv) Article 47 of Directive (EU) 2016/2341 of the European Parliament and of the Council (32); (xv) Article 22 of Regulation (EC) No 1060/2009 of the European Parliament and of the Council (33); (xvi) Article 3(2) and Article 32 of Directive 2006/43/EC of the European Parliament and of the Council (34); (xvii) Article 40 of Regulation (EU) 2016/1011 of the European Parliament and of the Council (35); (xviii) Article 29 of Regulation (EU) 2020/1503 of the European Parliament and of the Council (36); (3) an authority entrusted with the adoption and/or activation of macroprudential policy measures or with other financial stability tasks, such as related supporting analysis, including but not limited to: (i) a designated authority pursuant to Chapter 4 of Title VII of Directive 2013/36/EU or Article 458(1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council (37); (ii) a macroprudential authority with the objectives, arrangements, tasks, powers, instruments, accountability requirements and other characteristics set out in Recommendation ESRB/2011/3 of the European Systemic Risk Board (38);

(g)	‘relevant authority’ means: (1) an ESA; (2) the ECB for the tasks conferred to it in accordance with Articles 4(1) and (2) and Article 5(2) of Regulation (EU) No 1024/2013; (3) a relevant national authority.

2.   Criteria for implementation

The following criteria apply to the implementation of this Recommendation:

(a)	due regard should be paid to the need-to-know principle and the principle of proportionality, taking into account the objective and the content of each Recommendation;

(b)	the specific compliance criteria set out in the Annex in relation to each Recommendation should be met.

3.   Timeline for the follow-up

In accordance with Article 17(1) of Regulation (EU) No 1092/2010 addressees must communicate to the European Parliament, the Council, the Commission and to the ESRB the actions undertaken in response to this Recommendation or substantiate any inaction. Addressees are requested to submit such communication in compliance with the following timelines:

1.

Recommendation A (a) By 30 June 2023 but no earlier than six months after DORA enters into force, the ESAs are requested to deliver to the European Parliament, the Council, the Commission and to the ESRB an interim report on the implementation of sub-Recommendation A(1). (b) By 30 June 2024 but no earlier than 18 months after DORA enters into force, the ESAs are requested to deliver to the European Parliament, the Council, the Commission and to the ESRB a final report on the implementation of sub-Recommendation A(1). (c) By 30 June 2025 but no earlier than 30 months after DORA enters into force, the ESAs are requested to deliver to the European Parliament, the Council, the Commission and to the ESRB a report on the implementation of sub-Recommendation A(2).

2.	Recommendation B By 30 June 2023 but no earlier than six months after DORA enters into force, the ESAs, the ECB and Member States are requested to deliver to the European Parliament, the Council, the Commission and to the ESRB a report on the implementation of Recommendation B.

3.

Recommendation C (a) By 31 December 2023 but no earlier than 12 months after DORA enters into force, the Commission is requested to deliver to the European Parliament, the Council, and to the ESRB a report on the implementation of Recommendation C in view of the interim report of the ESAs in accordance with sub-Recommendation A(1). (b) By 31 December 2025 but no earlier than 36 months after DORA enters into force, the Commission is requested to deliver to the European Parliament, the Council, and to the ESRB a report on the implementation of Recommendation C in view of the reports of the ESAs in accordance with Recommendation A.

4.   Monitoring and assessment

1.

The ESRB Secretariat will: (a) assist the addressees, ensuring the coordination of reporting and the provision of relevant templates, and detailing where necessary the procedure and the timeline for the follow-up; (b) verify the follow-up by the addressees, provide assistance at their request, and submit follow-up reports to the General Board. The assessments will be initiated as follows: (i) within 12 months after the entry into force of DORA, regarding the implementation of Recommendation A and B; (ii) within 18 months after the entry into force of DORA, regarding the implementation of Recommendation C; (iii) within 24 months after the entry into force of DORA, regarding the implementation of Recommendation A; (iv) within 36 months after the entry into force of DORA, regarding the implementation of Recommendation A; (v) within 42 months after the entry into force of DORA, regarding the implementation of Recommendation C;

2.	The General Board will assess the actions and justifications communicated by the addressees and, where appropriate, may decide that this Recommendation has not been followed and that an addressee has failed to provide adequate justification for its inaction.

---

(1)  OJ L 1, 3.1.1994, p. 3.

(2)  OJ L 331, 15.12.2010, p. 1.

(3)  OJ C 58, 24.2.2011, p. 4.

(4)  Recommendation ESRB/2013/1 of the European Systemic Risk Board of 4 April 2013 on intermediate objectives and instruments of macro-prudential policy (OJ C 170, 15.6.2013, p. 1).

(5)  See Systemic cyber risk, ESRB, February 2020, available on the ESRB website at www.esrb.europa.eu

(6)  See Internet Organised Crime Threat Assessment, Europol, 2020, available on the Europol website at www.europol.europa.eu

(7)  See IT and cyber risk: a constant challenge, ECB, 2021, available on the ECB Banking Supervision website at www.bankingsupervision.europa.eu

(8)  See Systemic cyber risk, ESRB, February 2020, available on the ESRB website at www.esrb.europa.eu

(9)  See Mitigating systemic cyber risk, ESRB, 2021, (forthcoming).

(10)  COM/2020/595 final.

(11)  Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1).

(12)  See draft Article 43 of the proposal for DORA.

(13)  See European Commission, NIS Cooperation Group, available on the European Commission website at ec.europa.eu

(14)  See Cyber Lexicon, FSB, 12 November 2018, available on the FSB website at www.fsb.org

(15)  See point (7) of draft Article 3 of the proposal for DORA.

(16)  Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 331, 15.12.2010, p. 12).

(17)  Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Investment and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ L 331, 15.12.2010, p. 48).

(18)  Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

(19)  Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).

(20)  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).

(21)  Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35).

(22)  Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (OJ L 267, 10.10.2009, p. 7).

(23)  Directive (EU) 2019/2034 of the European Parliament and of the Council of 27 November 2019 on the prudential supervision of investment firms and amending Directives 2002/87/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU, 2014/59/EU and 2014/65/EU (OJ L 314, 5.12.2019, p. 64).

(24)  COM/2020/593 final.

(25)  Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012 (OJ L 257, 28.8.2014, p. 1).

(26)  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).

(27)  Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).

(28)  Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).

(29)  Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32).

(30)  Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335, 17.12.2009, p. 1).

(31)  Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (OJ L 26, 2.2.2016, p. 19).

(32)  Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (OJ L 354, 23.12.2016, p. 37).

(33)  Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies (OJ L 302, 17.11.2009, p. 1).

(34)  Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (OJ L 157, 9.6.2006, p. 87).

(35)  Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (OJ L 171, 29 June 2016, p. 1).

(36)  Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020 on European crowdfunding service providers for business and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937 (OJ L 347, 20.10.2020, p. 1).

(37)  Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1).

(38)  Recommendation ESRB/2011/3 of the European Systemic Risk Board of 22 December 2011 on the macro-prudential mandate of national authorities (OJ C 41, 14.2.2012, p. 1).

Euro exchange rates (1)

24 March 2022

(2022/C 134/02)

1 euro =

	Currency	Exchange rate
USD	US dollar	1,0978
JPY	Japanese yen	133,71
DKK	Danish krone	7,4397
GBP	Pound sterling	0,83288
SEK	Swedish krona	10,3555
CHF	Swiss franc	1,0225
ISK	Iceland króna	141,20
NOK	Norwegian krone	9,4923
BGN	Bulgarian lev	1,9558
CZK	Czech koruna	24,720
HUF	Hungarian forint	374,44
PLN	Polish zloty	4,7421
RON	Romanian leu	4,9489
TRY	Turkish lira	16,2917
AUD	Australian dollar	1,4668
CAD	Canadian dollar	1,3806
HKD	Hong Kong dollar	8,5897
NZD	New Zealand dollar	1,5812
SGD	Singapore dollar	1,4912
KRW	South Korean won	1 342,53
ZAR	South African rand	16,1478
CNY	Chinese yuan renminbi	6,9933
HRK	Croatian kuna	7,5745
IDR	Indonesian rupiah	15 778,31
MYR	Malaysian ringgit	4,6396
PHP	Philippine peso	57,426
RUB	Russian rouble
THB	Thai baht	36,837
BRL	Brazilian real	5,3057
MXN	Mexican peso	22,1770
INR	Indian rupee	83,8790

---

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

Opinion of the Advisory Committee on mergers at its meeting of 30 April 2021 concerning a preliminary draft decision relating to Case M.8181 – Merck / Sigma-Aldrich – Art. 14(1) procedure

Rapporteur: Romania

(2022/C 134/03)

Final Report of the Hearing Officer (1)

Case M.8181 – Merck/Sigma-Aldrich (Article 14(1) Procedure)

(2022/C 134/04)

I.   INTRODUCTION

1.

This report concerns a draft decision (the ‘Draft Decision’) pursuant to Article 14(1) of Council Regulation (EC) No 139/2004 (2) (the ‘Merger Regulation’). The Draft Decision finds that Sigma-Aldrich Corporation (‘Sigma’) intentionally or negligently provided incorrect and/or misleading information to the Commission during the review of the acquisition by Merck KGaA (‘Merck’) of sole control over Sigma in Case M.7435 – Merck/Sigma Aldrich (the ‘Merger Review’) (3). According to the Draft Decision, Sigma provided incorrect and/or misleading information in its response to two Commission requests for information made pursuant to Article 11(2) of the Merger Regulation and in the Final Form RM, submitted under Article 20(1a) of Council Regulation (EC) 802/2004 (4) (the ‘Implementing Regulation’).

II.   BACKGROUND

2.

On 15 June 2015, following the Merger Review, the Commission declared the acquisition by Merck of Sigma compatible with the internal market, subject to certain remedies (the ‘Merger Decision’). The remedies package approved by the Merger Decision included the divestiture of most of Sigma’s solvents and inorganics business in the EEA (the ‘Divestment Business’). The closing of the agreement between Merck and Sigma was conditional on the signing of an agreement for the sale of the Divestment Business with a suitable purchaser approved by the Commission.

3.

On 19 and 20 October 2015, Merck and Sigma signed an agreement with Honeywell International Inc. (‘Honeywell’) for the sale of the Divestment Business. This agreement included a schedule that listed certain assets that were explicitly excluded from the scope of the business that Sigma would sell to Honeywell (the ‘Excluded Assets Schedule’). The Excluded Assets Schedule included a reference to a patent application entitled ‘closure for a container,’ which was in fact a reference to Sigma’s iCap project. ICap, a project jointly developed by Sigma and Metrohm AG, is an intelligent bottle cap that seals liquid chemical bottles and connects them to titration instruments.

4.

On 10 November 2015, the Commission approved Honeywell as a suitable purchaser of the Divestment Business and on 18 November 2015, Merck completed the acquisition of Sigma. On 15 December 2015, Honeywell completed the acquisition of the Divestment Business.

5.

On 10 February 2016, the monitoring trustee appointed in Case M.7435 (‘Monitoring Trustee’) informed the Directorate General for Competition (‘DG Competition’) of Honeywell’s claim that iCap should have been part of the Divestment Business. According to Honeywell, iCap was of the utmost importance for the viability of the Divestment Business and had been inappropriately included in the Excluded Assets Schedule.

6.

On 29 July 2016, the Commission informed Merck that proceedings were ongoing concerning the possible provision of incorrect and/or misleading information by Merck and Sigma with a view to the possible imposition of fines pursuant to Article 14(1) of the Merger Regulation.

III.   LEGAL PROFESSIONAL PRIVILEGE CLAIMS

7.

On 14 October 2016, the Commission adopted two decisions pursuant to Article 11(3) of the Merger Regulation requesting Merck and Sigma to provide the email data of certain Merck and Sigma individuals generated in 2015 (‘the October Article 11(3) Decisions’) (5). While Merck and Sigma did provide certain documents, their response was not considered by the Commission to be complete, in particular because of Merck and Sigma’s legal professional privilege (‘LPP’) claims that were considered to be too broad. Consequently, on 1 December 2016, the Commission adopted two new decisions pursuant to Article 11(3) of the Merger Regulation requesting the information which had not been provided by Merck and Sigma in response the October Article 11(3) Decisions (the ‘December Article 11(3) Decisions’) (6). Merck and Sigma provided responses to the December Article 11(3) Decisions in December 2016 and January 2017 and submitted updated privilege logs in February 2017, March 2017, April 2017 and June 2017.

8.

However, DG Competition and Merck continued to disagree on the scope of Merck’s LPP claims and, as a result, on 30 August 2017, Merck requested that the Hearing Officer examine, under Article 4(2)(a) of Decision 2011/695/EU, Merck’s claims that certain documents sought by the Commission in the context of proceedings under Article 14(1) of the Merger Regulation (the ‘Contested Documents’) are covered by LPP. Merck submitted the Contested Documents to the Hearing Officer in an acceptably secure format on 7 November 2017 (7).

9.

The two Hearing Officers in function at the time decided that one of them, Mr Stragier, would act as Hearing Officer with respect to Merck’s request under Article 4(2)(a) of Decision 2011/695/EU and that the other one, Mr Wils, would act as Hearing Officer for all other purposes in Case M.8181, and that the latter would not have access to the Contested Documents.

10.

On 1 August 2018, pursuant to Article 4(2)(a) of Decision 2011/695/EU, the Hearing Officer sent his preliminary view regarding the privileged nature of certain Merck documents to the director responsible for this case, and to Merck. The preliminary view was, in essence, that Merck’s general arguments were in large measure misconceived or exaggerated and that the inadequate manner in which its numerous specific claims were presented meant that they could not be further entertained on the basis of Merck’s application of August 2017. On 8 September 2018, Merck replied to the preliminary view, contesting its findings, but encouraging the Hearing Officer to propose appropriate steps to promote a ‘mutually acceptable solution’ to the matter pursuant to Article 4(2)(a) of Decision 2011/695/EU. On 16 October 2018, the Hearing Officer chaired a meeting between DG Competition and Merck in which solutions to the issue of the Contested Documents were discussed.

11.

On 9 November 2018, Merck agreed to a protocol that would allow DG Competition to access the Contested Documents in a data room (the ‘Protocol’). On 23 November 2018, DG Competition, following a review under the procedure described in the Protocol, identified certain documents that it wished to rely on in its investigation and invited Merck to waive its LPP claims regarding these documents. Merck agreed to waive its claims in relation to some of the documents but not in relation to others. On 2 May 2019, members of DG Competition’s case team attended a meeting with Merck’s legal counsel, during which the case team took notes on the documents over which Merck continued to claim LPP. These notes were added to the Commission’s file in the present case for the sole purpose of a possible procedure rejecting the LPP claims on those specific documents (8).

IV.   STATEMENT OF OBJECTIONS AND FIRST ORAL HEARING

12.

The Commission addressed a statement of objections (‘SO’) to Merck and Sigma on 7 July 2017, and provided access to the file on 10 July 2017. In the SO, the Commission preliminarily concluded that, during the Merger Review, both Merck and Sigma had infringed Article 14(1) of the Merger Regulation by intentionally (in the case of Sigma) or at least negligently (in the case of Merck) providing incorrect and/or misleading information to the Commission.

13.

The Parties’ initial deadline to provide comments of 31 August 2017 was extended on several occasions, primarily in order for the Commission to determine a possible range of fines that might be imposed on the Parties in the event that they would enter into a cooperative settlement. On 30 April 2018, the Parties informed DG Competition that they were not willing to enter into a cooperative settlement under the terms proposed by the Commission. The Parties provided their written comments to the SO (‘SO response’) on the same day and made a request for further access to the file.

14.

Following the request for further access to the file, DG Competition provided a number of additional documents to the Parties on a rolling basis. The last outstanding documents were sent to the Parties on 5 October 2018.

15.

In the SO response, the Parties requested the opportunity to develop their arguments at an oral hearing. The oral hearing (‘first oral hearing’) was held on 11 September 2018.

16.

On 12 November 2018, the Parties provided a supplementary reply to the SO, in particular including their observations following the additional access to the file.

V.   SUPPLEMENTARY STATEMENT OF OBJECTIONS AND SECOND ORAL HEARING

17.

On 30 June 2020, the Commission adopted a supplementary statement of objections (‘SSO’) against Sigma. The SSO fully replaced the SO and did not maintain the allegations in the SO concerning Merck.

18.

In the SSO, the Commission preliminarily concluded that, by not disclosing iCap to the Commission during the Merger Review, Sigma, intentionally or at least negligently, supplied incorrect and/or misleading information: (a) within the meaning of Article 14(1)(b) of the Merger Regulation in its replies to two requests of the Commission made pursuant to Article 11(2) of the Merger Regulation and (b) within the meaning of Article 14(1)(a) of the Merger Regulation in a submission of information and documents in the Form RM prescribed in Annex IV of the Implementing Regulation.

19.

Sigma was granted access to the file on 7 July 2020 and provided its written comments to the SSO on 15 September 2020 (the ‘SSO response’), within the (extended) deadline specified by DG Competition.

20.

In the SSO response, Sigma requested the opportunity to develop its arguments at an oral hearing. This oral hearing (‘second oral hearing’) took place on 13 November 2020 (9).

VI.   SIGMA’S CLAIMS REGARDING LACK OF IMPARTIALITY

VI.1.   Sigma’s arguments

21.

In both the first oral hearing and the second oral hearing, as well as in the SO response (10) and SSO response, (11) Sigma (and Merck) argued that the setup of the investigation in Case M.8181 was prone to bias and therefore infringed the principles of impartiality and good administration. According to Sigma, the issue of bias arises because of the particular circumstances of the case, which involves allegations of Sigma providing misleading information to the case team during the Merger Review, and the fact that these allegations are being investigated by the same case team that is the ‘victim’ of the allegedly misleading behaviour (12). In the SSO response, Sigma, referring to Court of Justice (‘Court’) and European Court of Human Rights (‘ECtHR’) case-law on impartiality, (13) argued that the investigation in the present proceedings was set up in such a way so as to give the ‘strong impression that the investigation was not objectively impartial.’ Sigma also argued that certain aspects of the investigation suggest that the case team ‘might not have been completely subjectively impartial.’ In support of its arguments, Sigma presented a number of factual arguments that it argued supported its view that the handling of the case by the Commission lacked impartiality, including the following: a. The fact that the SO included a reference to an internal email from Sigma’s in-house counsel about the case manager ‘being obstinate’, (14) without this being clearly related to the substance of the case (15)., (16) b. The Commission’s press release of 6 July 2017 announcing the adoption of an SO, (17) which included a statement that ‘[iCap] was closely linked to the divested business and had the potential to substantially increase its sales. By not including it, the viability of the divested business was impaired.’ According to Sigma, the wording of the press release was inappropriate as it ‘drew firm conclusions about iCap’s role for the Divestment Business and refused to grant Sigma (and, at the time, Merck) the required benefit of doubt.’ (18) c. In the SO, the case team showed an ‘undue eagerness to rely on evidence supporting its conclusions at first sight,’ including by unduly relying on Honeywell’s submissions (19). In the same vein, in the SSO (according to Sigma) the case team also ‘mischaracterised the documents and market test results in relation to the alleged importance of R&D.’ (20) d. The case team, while (according to Sigma) at first recognising that the clear text of the Commitments and the Excluded Assets Schedule of the Sale and Purchase Agreement between Merck and Honeywell (21) did not leave much room for an investigation, still informed Honeywell that it ‘will see what can be done.’ (22) e. The SSO implies a ‘dual standard as to the level of diligence that different players in the merger review process are expected to show.’ (23) Sigma argues that while, on the one hand, the SSO purports to hold Sigma quasi-criminally liable for not disclosing iCap, on the other hand, the SSO does not expect the case team (or the Monitoring Trustee) to have noticed a reference to iCap in the Excluded Assets Schedule.

22.

Finally, Sigma argued that the current proceedings differ from those in GE/LM Wind (24) where the Hearing Officer, in his Final Report, (25) rejected General Electric’s arguments that a similar investigation set up (i.e., one where the case team was responsible for both the authorisation procedure and the misleading information investigation) created an appearance of bias (26). In the GE/LM Wind Final Report, the Hearing Officer concluded that General Electric’s allegations of objective bias were unconvincing, in particular because these overlooked ‘(i) the fact that a final decision in these proceedings is not one of the Case Team but of the Commission as an institution, acting through the College, at the end of a procedure involving numerous actors other than the Case Team, and (ii) the associated internal checks and balances in proceedings for the application of Article 14 EUMR.’ (27) According to Sigma, the current proceedings differ from those in GE/LM Wind because (a) the evidence demonstrates that the setup of the investigation gave rise to an appearance of bias; (b) Sigma (contrary to General Electric) expressed its concerns regarding bias during the first oral hearing; and (c) the involvement of ‘numerous actors’ in the proceedings does not alleviate the appearance of bias, as the investigation in Case M.8181 has been ‘driven from the outset’ by the case team. In Sigma’s view, the involvement of the Commission’s hierarchy in the approval of the final decision might remedy manifest instances of bias, but is not a sufficient safeguard when the overall setup of the case is affected by objective bias. According to Sigma, none of the ‘numerous actors’ involved in the proceedings carried out a detailed review of the facts and documents to form an independent, informed opinion and they had to rely on the information presented to them by the case team.

VI.2.   Consideration of Sigma’s arguments

VI.2.1.   General principles

23.

It must be first recalled that the Court has consistently stated that the Commission is not a court or tribunal within the meaning of Article 6 of the European Convention of Human Rights and Article 47 of the Charter of Fundamental Rights of the Union (‘the Charter’) (28). The Court has also affirmed that the European Union system of review is compatible with Article 6 of the European Convention of Human Rights and Article 47 of the Charter (29).

24.

With this in mind, it is apparent that the ECtHR case law cited by Sigma (mentioned in footnote 13 above) is not directly relevant in this context, as it refers to the requirement of impartiality by courts. Sigma’s reference to Ziegler is also not supportive of its position: in that case, the Court actually found that since Commission decisions are subject to review by the European Union judicature and European Union law lays down a system enabling the courts to review Commission decisions, the Commission could not be regarded as both the ‘victim’ of an infringement and the ‘judge’ responsible for imposing penalties for the infringement (30).

25.

This does not, of course, imply that the Commission (as an administrative body) is exempt from the requirement to act with impartiality. To the contrary, the right to good administration, as enshrined in Article 41 of the Charter, requires that every person has the right to have his/her affairs handled impartially. In that regard, it becomes relevant to consider whether the Commission has, in this case, acted in an impartial manner. As is apparent from the case-law of the Court, the requirement of impartiality encompasses both subjective and objective elements (31).

VI.2.2.   Considerations on subjective impartiality

26.

Sigma’s arguments concerning subjective impartiality are not particularly convincing and, for the reasons described below, any arguments of actual bias on behalf of the case team become less relevant when the Commission’s decision-making process is fully considered.

27.

Concerning the press release, even if part of the wording may be criticised (in that it may have given the impression that the Commission prejudged the assessment of certain facts), Sigma’s complaint is ultimately not convincing, since the press release made clear that the SO’s conclusions were preliminary (32). The preliminary nature of the Commission’s position at the time of the press release and the existence of the ‘benefit of doubt’ is in fact perfectly illustrated by the fact that Merck, while an addressee of the SO, is not an addressee of the Draft Decision.

28.

As regards Sigma’s argument that the Commission was unduly eager to use evidence supporting its conclusions at first sight, Sigma seems to merely be attacking the SO’s and SSO’s use of (in its view) incorrect evidence as proof of the case team’s ‘enthusiasm’ and bias. However, the essence of a statement of objections is to provide parties with the opportunity to comment on the Commission’s case, including its use of evidence. The allegation that the Commission has used the evidence incorrectly cannot, as such, amount to evidence of bias. Even if Sigma would be correct in stating that the Commission had misinterpreted certain evidence, this does not, in itself, demonstrate partiality, but, at worst, might betray a poor understanding of a document (33).

29.

Sigma’s argument in relation to ‘dual standards’ as set out in paragraph 21(e) above is similarly unconvincing since the issue at stake in Case M.8181 is whether Sigma intentionally or negligently provided incorrect and/or misleading information to the Commission. Whether or not the case team could have identified the existence of iCap in the Excluded Assets Schedule is not relevant to the finding of an infringement and Sigma does not explain why it would lead to a bias in the investigation. In addition, Sigma fails to explain why the Commission’s standard of care in discharging its duties in the present case should be aligned to Sigma’s in the circumstances that gave rise to the present case, where information asymmetry between Sigma and the Commission was particularly pronounced (34).

30.

In any case, even if it were to be accepted that Sigma had demonstrated subjective bias on the part of one or more members of the case team, that would not suffice to show that the Commission, as an institution, was subjectively biased, as Sigma appears to suggest (35).

VI.2.3.   Considerations on objective impartiality

31.

The Court has repeatedly stated that the fact that the Commission, as an administrative body, carries out the functions of investigating and imposing penalties does not constitute a breach of the requirement of impartiality, since its decisions are amenable to review by the EU judicature (36). The essence of this case is whether the facts of the current proceedings are somehow different to other competition law cases where the Commission acts both as investigator and as decision-maker or whether there are ‘sufficient guarantees to exclude any legitimate doubt as to bias.’ (37)

32.

At the outset, it should be recalled that while the case team undoubtedly has an important function in the investigative process, it does not decide on the outcome of the case: this duty is performed by the College of Commissioners (38). Furthermore, an allegation of bias of this sort ignores the system of checks and balances built in the Commission’s internal decision-making procedures. The adoption of any decision necessitates the involvement of a number of actors (39). Sigma’s argument that the numerous actors involved in the decision-making process were not a ‘sufficient safeguard’ because they had ‘not carried out a detailed review of the facts and documents to form an independent, informed opinion in the case’ is not credible in this case. The involvement of these actors was instrumental in reducing the scope of the Commission’s case, since the SSO did not (contrary to the SO) address any objections to Merck and provided Sigma with an opportunity to present its arguments during the second oral hearing. Sigma itself acknowledged the efficacy of the oral hearing process during comments in the second oral hearing, (40) which would indicate that Sigma’s view is that the oral hearing provides an effective forum for parties to present their case to a wider audience than the case team, which can lead to a case being narrowed in scope or even dropped entirely.

33.

The judgments in Spain v Council and August Wolff (cited by Sigma during the second oral hearing and/or in the SSO response) do not support Sigma’s arguments either. In Spain v Council, Spain challenged a Council decision by which the latter imposed a fine on Spain for the misrepresentation of deficit data, following an investigation and recommendation by the Commission. Spain argued that the Commission breached the requirement of objective impartiality by entrusting the conduct of the investigation in question to largely the same team that had taken part in prior routine visits and assessments to verify the quality of certain data (including deficit data) provided by Spain prior to the start of the relevant procedure. In rejecting Spain’s arguments that objective impartiality was breached, the Court noted, first, that the investigation leading to the Commission’s recommendation to impose a fine and the visits and assessments of the quality of deficit and other data fall within separate legal frameworks and have different purposes (41). Therefore, the prior visits and assessments of the quality of the data did not, in themselves, prejudge the view that might be taken by the Commission regarding the existence of misrepresentations relating to the same data (42). Second, the Court noted that the relevant regulations did not entrust a given Commission department (43) with the power to decide to initiate the investigation procedure, the responsibility for conducting the investigation or the power to submit to the Council the recommendation necessary at the conclusion of the investigation. This power was given to the Commission, an institution acting as a collegiate body. As a consequence, the Court found that the role assigned to the Commission staff in the investigation procedure could not be regarded as ‘decisive’ for either the conduct or the outcome of that procedure (44).

34.

In August Wolff, the Court, applying similar considerations as in Spain v Council, concluded that the requirement of objective impartiality was not met in relation to the procedure under appeal. August Wolff concerned the referral by the competent German authority (BfArM) to the Committee of Medicinal Products for Human Use (‘Committee’) of the refusal of the marketing authorisation of a certain medicinal product. The question of breach of objective impartiality arose because the Committee appointed a chief rapporteur from Germany to prepare its opinion, while this rapporteur was also an employee of the BfArM. At the time of the referral to the Committee, the BfArM was engaged in litigation with the appellants in relation to its refusal to renew the marketing authorisation of the medicinal product in question. The Court considered the following factors as relevant for its analysis on objective impartiality: that the procedure before the BfArM and the procedure before the Committee aimed at fulfilling the same substantive purpose (45) and were also regarded as being of the same nature; that the Committee rapporteur takes on an important role in preparing the opinion which the Committee is called upon to issue and has responsibilities of their own in that procedure; and that it was only in exceptional circumstances that the Commission would be justified in not following the Committee’s opinion (46). According to the Court, third party observers could legitimately consider that the BfArM, by referring the matter to the Committee, was continuing to pursue its own national level interests and that persons employed by the BfArM who are involved in the procedure before the Committee may not act impartially (47).

35.

The analysis conducted by the Court in the above-mentioned cases does not point to a finding of a breach of objective impartiality in the current proceedings. In both Spain v Council and August Wolff, the Court found that the commonality of the purpose of the two procedures that gave rise to a claim of conflict of interest to be a key consideration in its assessment. In August Wolff, the German and European procedures were both aimed at granting a marketing authorisation for the medicinal product in question. As a consequence, the German rapporteur inevitably faced a conflict of interest in the European process, since she could not be seen to be impartial when her employer had not only already refused the marketing authorisation in question, but was also engaged in litigation with the appellants on the issue. In Spain v Council on the other hand, the Court noted that the Commission investigation regarding the misrepresentations made in connection with certain deficit data, and the prior routine assessment of the quality of the same data fulfilled different purposes and therefore found that the prior assessment work did not prejudge the view that might be taken by the Commission regarding the subsequent investigation on misrepresentations.

36.

Applying the above considerations to the current proceedings, it appears that the object and nature of the investigation in Case M.7435 and that of the investigation in Case M.8181 are different. Indeed, the investigation in M.7435 was aimed at reaching a decision on the authorisation of a merger based on Articles 8(1) to 8(3) of the Merger Regulation. The investigation in M.8181, on the other hand, aims to determine whether Merck and/or Sigma (negligently or intentionally) provided incorrect and/or misleading information to the Commission within the context of the Merger Review on the basis of Article 14(1) of the Merger Regulation. It is not clear how the case team’s review of M.7435 would prevent it from acting impartially in M.8181.

37.

Furthermore, the Court in August Wolff pointed to the particular importance of the rapporteur in the decision-making process in that case, stating that they have ‘an important role in preparing the opinion’ and ‘responsibilities of their own’. Similarly, in Spain v Council the Court considered whether the role of the individuals accused of lacking impartiality was ‘decisive’ for the conduct or the outcome of the procedure. In the current proceedings, the case team, while holding an important position in relation to the investigation, does not have responsibility for the decision-making role. Contrary to Sigma’s assertion that ‘the investigation in M.8181 has been driven from the outset by the case team,’ (48) the fact is that actors other than the case team have had a decisive role in reshaping the case and in reducing the scope of the possible infringement when compared to that described in the SO. This is certainly not a situation where the position of the case team would only ‘exceptionally’ not be followed by the Commission, as was the case in August Wolff.

38.

In light of the above considerations, Sigma’s arguments regarding lack of impartiality are unconvincing.

VII.   CONCLUDING REMARKS

39.

The Draft Decision pursuant to Article 16(1) of Decision 2011/695/EU only deals with objections in respect of which Sigma has been afforded the opportunity of making its views known.

40.

Overall, it can be concluded that the effective exercise of procedural rights has been respected during the present proceedings.

---

(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings, OJ L 275, 20.10.2011, p. 29 (‘Decision 2011/695/EU’).

(2)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p.1).

(3)  Sigma and Merck are referred to together in the present report as ‘the Parties’.

(4)  Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.04.2004, p. 1-39).

(5)  C(2016) 6772 (final) (Merck), C(2016) 6771 final (Sigma).

(6)  C(2016) 8202 (final) (Merck), C(2016) 8210 (final) (Sigma).

(7)  Merck initially requested the Hearing Officer to examine Merck’s LPP claims over 9 635 documents but this was subsequently reduced to 7 980 documents following initial comments by the Hearing Officer on the scope of LPP under EU law.

(8)  Pursuant to the Protocol, the Commission could decide to launch proceedings to reject Merck’s LPP claims over certain documents, in case Merck maintained its claims over documents that, in the Commission’s view, would not be covered by LPP. Decision 2011/695/EU does not give the Hearing Officer decision-making powers in relation to LPP claims, but only the ability to formulate a reasoned recommendation to the competent member of the Commission, without revealing the potentially privileged content of the document. Given the agreement between DG Competition and Merck, there was no need for such a recommendation by the Hearing Officer.

(9)  Due to the ongoing coronavirus pandemic, the second oral hearing was held remotely by secure encrypted videoconference as well as via a password protected (web streamed) virtual listening room for persons that did not need to speak at the second oral hearing.

(10)  SO response, paragraphs 147, 148 and 322.

(11)  SSO response, paragraphs 284 – 294.

(12)  SSO response, paragraph 286.

(13)  In Section 5.1 of the SSO response and during the second oral hearing, Sigma referred to Ziegler v Commission, C-439/11 P, EU:C:2011:815 (‘Ziegler’), paragraph 155; Spain v Council of the European Union, C-521/15, EU:C:2017:982 (‘Spain v Council’), paragraph 91; Padovani v Italy, 13396/87, 26 February 1993 paragraph 25; Grande Stevens and others v Italy, 18640/10, 4 March 2014, paragraph 137 and Toziczka v. Poland, 29995/08, 24 July 2012, paragraph 36. During the second oral hearing, Sigma also referred to the recent judgment in August Wolff and Remedia v Commission, C-680/16 P, EU:C:2019:257 (‘August Wolff’). In paragraph 282 of the SSO response and during the second oral hearing, Sigma also cited a number of judgments of courts of England and Wales or of the United Kingdom but did not explain why these were relevant for the interpretation of EU law.

(14)  SO, footnote 351.

(15)  SSO response, paragraph 290.

(16)  As the SSO response acknowledges, this reference was deleted in the SSO.

(17)  Commission’s Press Release of 6 July 2017 titled ‘Commission alleges Merck and Sigma-Aldrich, General Electric, and Canon breached EU merger procedural rules,’ IP/17/1924 (‘the press release’).

(18)  SSO response, paragraph 292(a).

(19)  For example, in paragraph 292(e) of the SSO response, Sigma states that ‘[i]n the spring of 2016, the case team initially accepted Honeywell’s idea that iCap was a key project, which clouded the case at the stage of the Statement of Objections of 6 July 2017 and continues to cloud it now. […].’

(20)  SSO response, paragraph 292(c).

(21)  The Excluded Assets Schedule listed a number of assets that were intended to be excluded from the scope of the business sold to Honeywell. The patent relating to iCap was listed in this Excluded Assets Schedule.

(22)  SSO response, paragraph 292(d).

(23)  SSO response, paragraph 293.

(24)  Case M.8436 - General Electric Company / LM Wind Power Holding (Art. 14.1 procedure).

(25)  Final Report of the Hearing Officer - General Electric Company/LM Wind Power Holding (Art. 14), 2020/C 24/05, OJ C 24, 24.1.2020, p. 7–11 (‘GE/LM Wind Final Report’).

(26)  SSO response, paragraphs 295 – 302.

(27)  GE/LM Wind Final Report, paragraph 17.

(28)  See Musique Diffusion française and Others v Commission, Joined Cases C-100/80 to 103/80, EU:C:1983:158 paragraph 7.

(29)  See Otis v Commission, C-199/11, EU:C:2012:684, paragraphs 56-64 and Chalkor v Commission, C-386/10 P, EU:C:2011:815, paragraph 67.

(30)  See Ziegler, paragraph 159.

(31)  See Ziegler, paragraph 155, Gorostiaga Atxalandabaso v Parliament, C-308/07 P, EU:C:2009:103, paragraph 46, Opinion of AG Kokott in Spain v Council, C-521/15, EU:C:2017:420, paragraphs 97-115.

(32)  Specifically, the press release stated that ‘The Commission has informed the German company Merck KGaA and Sigma-Aldrich of its preliminary conclusion that the companies have provided incorrect or misleading information in the context of Merck’s acquisition of Sigma-Aldrich. …The Commission’s preliminary conclusion is that Merck and Sigma-Aldrich failed to provide the Commission with important information about an innovation project with relevance for certain laboratory chemicals at the core of the Commission’s analysis.’ (emphasis added).

(33)  See, by analogy, JCB Service v Commission, T-67/01, EU:T:2004:3, paragraph 55.

(34)  Sigma’s argument that the Commission should have noticed the mention of iCap in the Excluded Assets Schedule is in any case unrelated to the facts that may give rise to an infringement under Article 14(1) of the Merger Regulation. Even if the Commission had noticed that iCap was mentioned in the Excluded Assets Schedule, this would not have had any bearing on whether Sigma had negligently or intentionally provided incorrect and/or misleading information during the Merger Review.

(35)  See, by analogy, ABB Asea Brown Boveri v Commission, T-31/99, EU:T:2002:77, paragraph 104.

(36)  See Bollore v Commission, T-372/10, EU:T:2012:325, paragraph 66 and Enso Española v Commission, T-348/94, EU:T:1998:102, paragraphs 56 to 64.

(37)  See Ziegler, paragraph 155.

(38)  See, by analogy, Chronopost SA v. Commission, C-341/06, EU:C:2007:20, paragraph 54.

(39)  The relevant actors (other than the case team dealing with the case) include the Commissioner for Competition, assisted by the members of their cabinet; DG Competition’s senior management, including the Director-General of DG Competition; DG Competition’s relevant horizontal coordination unit; the Chief Economist’s Team (where appropriate); the Legal Service; ‘associated services’ in the Commission, the Hearing Officer and the Advisory Committee on concentrations. Furthermore, the system also foresees the possibility of a ‘peer review’ exercise within the Commission, which did take place in the present proceedings.

(40)  Specifically, during the oral hearing, one of Sigma’s legal representatives, stated that ‘oral hearings do work’ (emphasis added) and that the current proceeding ‘perfectly illustrates the value of such hearings.’

(41)  Specifically, the prior visits were based on Article 8(1) of Regulation 479/2009, of 25 May, on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community (OJ 2009 L 145, p. 1), and had the purpose of enabling the relevant Commission department (Eurostat) to assess the quality of the debt and deficit data reported twice a year by Member States. In contrast, the investigation procedure was based on Article 8(3) of the same Regulation, and had the purpose of enabling the Commission to conduct all investigations necessary to establish the existence of misrepresentations of that data, made either intentionally or by serious negligence, where it finds that there are serious indications of the existence of facts liable to constitute such a misrepresentation. Spain v Council, paragraphs 96-98.

(42)  See Spain v Council, paragraph 100 - 101.

(43)  In that case, Eurostat.

(44)  See Spain v Council, paragraphs 102 – 104.

(45)  Namely to decide on the quality, safety and efficacy of medicinal products for the purposes of granting marketing authorisation.

(46)  See August Wolff, paragraphs 31 - 35.

(47)  See August Wolff, paragraphs 38 - 39.

(48)  SSO response, paragraph 300.

SUMMARY OF COMMISSION DECISION

of 3 May 2021

imposing fines under Article 14(1) of Council Regulation (EC) No 139/2004

(Case M.8181 – MERCK/SIGMA-ALDRICH (ART. 14.1))

(notified under document number C(2021)2400)

(only the English version is authentic)

(2022/C 134/05)

On 03 May 2021 the Commission adopted a Decision under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the ‘Merger Regulation’) (1) , and in particular Article 14(1) of that Regulation. A non-confidential version of the full Decision can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address: http://ec.europa.eu/competition/elojade/isef/index.cfm?clear=1&policy_area_id=2

I.   FACTUAL BACKGROUND

A.   The undertakings concerned

(1)

Sigma-Aldrich Corporation (‘Sigma-Adlrich’, USA) is active in the development, production, and supply of life science tools and services as well as chemicals, analytical reagents, and lab-ware. Following completion of the Transaction on 18 November 2015, Sigma-Aldrich became a subsidiary of Merck.

(2)

Merck KGaA (‘Merck’, Germany) is a global pharmaceutical and chemicals company. Among other products and services, at the time of the acquisition of Sigma-Aldrich, Merck developed and marketed laboratory chemicals, including solvents and inorganics.

B.   The Commission’s merger control review

(3)

On 22 September 2014, Merck and Sigma-Aldrich (together, the ‘Parties’) signed a share purchase agreement regarding the Transaction, whereby Merck would acquire, within the meaning of Article 3(1)(b) of the Merger Regulation, control of the whole of Sigma-Aldrich by way of purchase of securities (the ‘Transaction’).

(4)

On 21 April 2015, the Transaction was formally notified to the Commission with the submission of a Form CO pursuant to Article 4 of the Merger Regulation (2). On the same day, the Commission launched a Phase I market investigation pursuant to Article 6(1) of the Merger Regulation.

(5)

On 13 May 2015, the Commission informed the Parties that following the Phase I market investigation and based on the information submitted by the Parties, the Transaction was likely to give rise to serious doubts regarding its compatibility with the internal market in relation to laboratory chemicals, and in particular in relation to solvents and inorganics in the EEA (3).

(6)

On 22 May 2015, to alleviate the serious doubts in relation to solvents and inorganics in the EEA, Merck and Sigma-Aldrich formally submitted initial commitments, together with an initial Form RM. The initial commitments consisted in the divestiture of most of Sigma-Aldrich’s solvents and inorganics business in the EEA (the ‘Divestment Business’). On the same day, the Commission launched a market test of the initial commitments.

(7)

On 29 May 2015, the Commission sent a request for information (‘RFI’) to the Parties pursuant to Article 11(2) of the Merger Regulation (‘RFI I-3’) including questions on the content of the Initial Form RM. On 2 June 2015, the Parties replied to most questions of RFI I-3.

(8)

On 2 June 2015, the Commission sent another RFI to the Parties pursuant to Article 11(2) of the Merger Regulation (‘RFI I-4’) asking specific questions on research and development (‘R&D’) agreements and personnel related to Sigma-Aldrich’s solvents and inorganics business in the EEA. On 8 June 2015, the Parties replied to RFI I-4.

(9)

In light of the feedback received during the market test and the Commission’s comments, the Parties refined and amended the initial commitments. On 11 June 2015, the final commitments were submitted to the Commission. On 12 June 2015, the Parties submitted the final version of the Form RM.

(10)

On 15 June 2015, the Commission adopted a decision pursuant to Articles 6(1)(b) and 6(2) of the Merger Regulation declaring the Transaction compatible with the internal market, subject to conditions and obligations set out in the final commitments (the ‘Clearance Decision’).

C.   Events post-Clearance Decision

(11)

The closing of the agreement between Merck and Sigma-Aldrich was conditional on the signing of an agreement for the sale of the Divestment Business with a suitable purchaser approved by the Commission.

(12)

On 19 and 20 October 2015, Merck and Sigma-Aldrich signed an agreement with Honeywell International Inc. (‘Honeywell’) for the sale of the Divestment Business. On 10 November 2015, the Commission approved Honeywell as a suitable purchaser of the Divestment Business and on 18 November 2015, Merck completed the acquisition of Sigma-Aldrich. On 15 December 2015, Honeywell completed the acquisition of the Divestment Business.

(13)

In February 2016, in the context of the divestment process, the Commission was made aware that a R&D project that Sigma-Aldrich was developing together with Metrohm AG (‘Metrohm’, Germany) should have been part of the Divestment Business. This R&D project was iCap. According to the information received, iCap was of the utmost importance for the viability of the Divestment Business and had been inappropriately excluded from its scope.

II.   INFRINGEMENT PROCEEDINGS

(14)

On 29 July 2016, the Commission sent a letter to the Parties to inform them that an investigation was ongoing with a view to a possible revocation of the Clearance Decision pursuant to Article 6(3)(a) of the Merger Regulation and a possible imposition of fines pursuant to Article 14(1) of the Merger Regulation (4).

(15)

On 7 July 2017, the Commission addressed a Statement of Objections (‘SO’) to Merck and Sigma-Aldrich communicating its preliminary view that both Merck and Sigma-Aldrich had infringed Article 14(1) of the Merger Regulation by intentionally (Sigma-Aldrich) or at least negligently (Merck) providing incorrect and/or misleading information to the Commission.

(16)

Merck and Sigma-Aldrich replied to the SO on 30 April 2018. In the SO response, the Parties requested the opportunity to develop their arguments at an oral hearing. This took place on 11 September 2018.

(17)

On 30 June 2020, the Commission adopted a supplementary statement of objections (‘SSO’) against Sigma-Aldrich. The SSO fully replaced the SO and did not maintain the allegations in the SO concerning Merck.

(18)

On 15 September 2020, Sigma-Aldrich replied to the SSO. In the SSO response, Sigma-Aldrich requested the opportunity to develop its arguments at an oral hearing. This took place during on 13 November 2020.

(19)

The Member States were consulted on the draft Decision during the Advisory Committee on Concentrations on 30 April 2021, which provided a favourable opinion. The Hearing Officer provided a favourable opinion on the proceedings in his report, which was submitted on 30 April 2021.

III.   SUMMARY

(20)

Under the Merger Regulation, the Commission may impose fines on undertakings which, intentionally or negligently, infringe the procedural obligations enshrined in the Merger Regulation.

(21)

In particular, Article 14(1) of the Merger Regulation provides that the Commission may by decision impose on undertakings fines not exceeding 1 % of the aggregate turnover of the undertakings concerned ‘where, intentionally or negligently: (a) they supply incorrect or misleading information in a submission [...]; (b) they supply incorrect or misleading information in response to a request made pursuant to Article 11(2)’.

(22)

Based on the overall body of evidence collected during the proceedings, the Decision declares that Sigma-Aldrich infringed Article 14(1) of the Merger Regulation in the context of its acquisition by Merck. As a result, the Decision imposes a fine on Sigma-Aldrich pursuant to Articles 14(1)(a) and 14(1)(b) of the Merger Regulation.

IV.   SIGMA-ALDRICH’S INFRINGEMENTS

A.   iCap

(23)

iCap is an intelligent bottle cap technology developed by Sigma-Aldrich in cooperation Metrohm, a laboratory instrument manufacturer. iCap seals a liquid chemical bottle and connects the chemical to the instrument. As a result, iCap ensures limited contamination risk and allows for the exchange of data between the instrument and the bottle.

(24)

Based on the Commission’s investigation, Sigma-Aldrich (i) planned to use iCap with its solvents and inorganics bottles and (ii) foresaw that iCap would meaningfully increase the company’s sales and market shares in the relevant markets.

B.   Infringement of Article 14(1)(a) regarding the Form RM

(25)

Sigma-Aldrich (together with Merck) submitted a Form RM to the Commission accompanying its final commitments.

(26)

Section 5.3 of the Form RM explicitly requires a list and a description of ‘any innovations or new products or services planned’ in relation to the divestment business. In this Section, all innovations or new products planned in relation to the business to be divested must be disclosed.

(27)

Sigma-Aldrich should have disclosed iCap in reply to Section 5.3 of the Form RM. iCap used in combination with solvents and inorganics constituted a ‘new product planned’. iCap was also an innovation project. Moreover, iCap was specifically developed for volumetric titration solutions, Karl Fischer titration solutions and HPLC solvents which (i) were all part of the Divestment Business and (ii) accounted for the vast majority of the EEA sales of products that could be combined with iCap.

(28)

Sigma-Aldrich did not disclose iCap in reply to Section 5.3 of the Form RM. Instead, Sigma-Aldrich noted that ‘there are no new products or innovations imminently planned with regard to’ the Divestment Business.

(29)

The Commission concludes that by not disclosing iCap and by stating that there are no new products or innovations imminently planned, Sigma-Aldrich provided incorrect and/or misleading information in Section 5.3 of the Form RM, infringing Article 14(1)(a) of the Merger Regulation.

C.   Infringement of Article 14(1)(b) regarding the RFI I-3

(30)

The Commission sent an RFI to the Parties on 29 May 2015, the RFI I-3. Question 6 of RFI I-3 asked the Parties to describe all differences between the Divestment Business and Sigma-Aldrich’s business for solvents and inorganics in the EEA.

(31)

iCap should have been disclosed in reply to question 6 of RFI I-3. iCap was developed for volumetric titration solutions, Karl Fischer titration solutions and HPLC solvents and thus, was part of Sigma-Aldrich’s business for solvents and inorganics in the EEA. Yet, iCap was excluded from the Divestment Business. Thus, it constituted a difference between the Divestment Business and Sigma-Aldrich’s business for solvents and inorganics in the EEA.

(32)

Sigma-Aldrich did not disclose iCap in reply to question 6 of RFI I-3. Instead, Sigma-Aldrich explicitly identified other assets as being excluded from the scope of the Divestment Business (e.g., Dried Anhydrous Solvents). This reply was ultimately integrated into Section 5.12 of the Form RM.

(33)

The Commission concludes that by not disclosing iCap and by listing other assets as excluded from the scope of the Divestment Business, Sigma-Aldrich provided incorrect and/or misleading information in reply to question 6 of RFI I-3, infringing Article 14(1)(b) of the Merger Regulation.

D.   Infringement of Article 14(1)(b) regarding the RFI I-4

(34)

The Commission sent an RFI to the Parties on 2 June 2015, the RFI I-4. Questions 12, 13, and 16 of RFI I-4 asked the Parties to elaborate on the R&D activities or functions related to Sigma-Aldrich’s solvents and inorganics business in the EEA (including the existence of R&D agreements and personnel).

(35)

iCap should have been disclosed in reply to questions 12, 13, and 16 of RFI I-4. Sigma-Aldrich’s R&D agreement with Metrohm regarding iCap concerned solvents and inorganics in the EEA. Eleven Sigma-Aldrich employees were working on iCap and were thus responsible for R&D on solvents and inorganics.

(36)

Sigma-Aldrich did not disclose iCap in reply to questions 12, 13, and 16 of RFI I-4. Instead, Sigma-Aldrich noted that it ‘does not have any formal R&D agreements with respect to its current solvent and inorganics products in the EEA’ and that ‘it does not have any dedicated R&D resources assigned to any solvents and inorganics except in a limited [quality control] testing role’. This reply was ultimately integrated into Section 5.4 of the Form RM.

(37)

The Commission concludes that by not disclosing iCap and by stating that there are no R&D agreements and practically no dedicated R&D resources for solvents and inorganics in the EEA, Sigma-Aldrich provided incorrect and/or misleading information in reply to questions 12, 13, and 16 of RFI I-4, infringing Article 14(1)(b) of the Merger Regulation.

E.   Sigma-Aldrich’s Liability

(38)

Based on the overall body of evidence collected during the proceedings (including contemporaneous Sigma-Aldrich documents), the Commission concludes that: a) Sigma-Aldrich was aware (or could not have been unaware) of the fact that the information required (in RFI I-3, RFI I-4, and in the Form RM) was necessary and material for the Commission’s assessment of the Transaction; and b) Sigma-Aldrich was aware (or could not have been unaware) that the information provided to the Commission was incorrect and/or misleading.

(39)

The above is sufficient to demonstrate that Sigma-Aldrich could not have been unaware of the nature of its conduct and thus committed an infringement intentionally or at least negligently.

(40)

Moreover, while not necessary for establishing liability for an infringement under Article 14(1) of the Merger Regulation, the evidence in the Commission’s file suggests that the provision of incorrect and/or misleading information was part of a strategy implemented by Sigma-Aldrich to avoid the transfer of iCap to the purchaser of the Divestment Business.

V.   THE FINE

(41)

The Commission considers that one fine should be imposed for the three infringements of Sigma-Aldrich, which were identified in Section IV above. Each of these infringements concerns a different RFI question or Section of the Form RM but all the information was provided in the context of the assessment of the proposed commitments.

(42)

In setting the amount of the fine, the Commission has taken into account the following considerations: a) Sigma-Aldrich’s infringements are serious in nature because they prevent the Commission from accessing information necessary to assess a concentration (and its modifications in case of commitments); b) Sigma-Aldrich’s infringements are particularly grave because Sigma-Aldrich acted intentionally or at least negligently; the incorrect and/or misleading information related to an R&D project (and the Commission has no other way to obtain information about R&D projects); and iCap was relevant for the Divestment Business; c) Sigma-Aldrich’s infringements are instantaneous; and d) There are no aggravating or mitigating circumstances in this case.

(43)

On this basis, the Commission concluded that it is appropriate, proportionate and deterrent to impose a fine of EUR 7 500 000 for Sigma-Aldrich’s infringements of Articles 14(1)(a) and 14(1)(b) of the Merger Regulation.

VI.   CONCLUSION

For the reasons mentioned above, the Decision concludes that a fine should be imposed on Sigma-Aldrich for the infringements of Articles 14(1)(a) and 14(1)(b) of the Merger Regulation.

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(1)  OJ L 24, 29.01.2004, page 1.

(2)  The Transaction was reviewed by the Commission in Case M.7435 – Merck/Sigma-Aldrich.

(3)  Any references made to the EEA in this Decision also include the United Kingdom (‘UK’). Although the UK withdrew from the EU as of 1 February 2020, according to Article 92 of the Withdrawal Agreement (OJ L 29, 31.1.2020, p. 7), the Commission continues to be competent to apply Union law as regards the UK for administrative procedures initiated before the end of the transition period.

(4)  On 24 October 2016, Sigma-Aldrich and Metrohm granted a licence to iCap in favour of Honeywell, which was amended on 5 December 2016 based on discussions with Honeywell.

Notice from the Croatian Energy Regulatory Agency on the public call for tenders for selection of gas supplier of last resort, to be published pursuant to Articles 61 and 62 of the Gas Market Act (‘Official Gazette’, No. 18/18 and 23/20).

(2022/C 134/06)

Public call for tenders for selection of gas supplier of last resort shall be published on 18 February 2022.

The accompanying documentation for the public call for tenders for selection of gas supplier of last resort shall be published on the official website of the Croatian Energy Regulatory Agency (www.hera.hr).

Notification by Italy of the application of Article 19 (2) of Regulation 1008/2008 concerning traffic distribution rules between the airports of Milan Malpensa and Milan Linate.

(Text with EEA relevance)

(2022/C 134/07)

Pursuant to Article 19 (3) of Regulation (EC) No 1008/2008 of the European Parliament and the Council of 24 September 2008 on common rules for the operation of air services in the Community (1), on 22 February 2022 the Commission received notification from Italy of a draft Decree amending the existing traffic distribution rule (2) for the airports of Milan Malpensa and Milan Linate. The proposed rule, when adopted and entered into force, will distribute traffic between the above mentioned airports on the following basis:

‘1.

Air carriers may operate point-to-point scheduled routes, using narrow-body aircraft, between Milan Linate airport and other airports in the European Union, or airports belonging to a State which has entered into a vertical-type agreement with the European Union regulating its air services and which are also located within a radius of 1 500 km — measured according to the great circle route method — from Milan Linate airport, within the limits of the defined operating capacity of Milan Linate airport. Only the following air carriers may operate such routes: (a) carriers defined as Community air carriers under Article 2(10) and (11) of Regulation (EC) No 1008/2008, of the European Parliament and of the Council of 24 September 2008 and meeting the requirements laid down by the competent aviation authorities, in accordance with that Regulation; (b) carriers designated by a country to operate air services based on a vertical-type agreement entered into by that country with the European Union, provided that the route concerns an airport within a radius of 1 500 km — measured according to the great circle route method — from Milan Linate airport.

2.

To guarantee compliance with the provisions of paragraph 1, the distribution and sale of tickets and the carriage of passengers on point-to-point routes flying from or to Milan Linate airport shall be permitted only in respect of airports located within the geographical boundaries defined by paragraph 1.’

The Commission invites interested parties to submit their comments within 20 days of publication of this communication, to:

Directorate-General for Mobility and Transport (Unit E1 aviation policy) European Commission

MOVE-TRAFFIC-DISTRIBUTION-RULES@ec.europa.eu

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(1)  OJ L 293, 31.10.2008, p. 3.

(2)  Decree No 15 of the Minister for Transport and Navigation of 3 March 2000

Prior notification of a concentration

(Case M.10378 – VUB / SLOVENSKA SPORITELNA / TATRA BANKA / 365.BANK / CSOB / JV)

(Text with EEA relevance)

(2022/C 134/08)

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

Prior notification of a concentration

(Case M.10531 – Santander/Mapfre/JV)

Candidate case for simplified procedure

(Text with EEA relevance)

(2022/C 134/09)

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(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

(2)  OJ C 366, 14.12.2013, p. 5.

Prior notification of a concentration

(Case M.10594 – SECURITAS / STANLEY SECURITY)

(Text with EEA relevance)

(2022/C 134/10)

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

Prior notification of a concentration

(Case M.10584 – LUFTHANSA / VW / JV)

Candidate case for simplified procedure

(Text with EEA relevance)

(2022/C 134/11)

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

(2)  OJ C 366, 14.12.2013, p. 5.

Prior notification of a concentration

(Case M.10678 - AIP / MACQUARIE / ABERDEEN / ONIVIA)

Candidate case for simplified procedure

(Text with EEA relevance)

(2022/C 134/12)

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(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

(2)  OJ C 366, 14.12.2013, p. 5.

Prior notification of a concentration

(Case M.10583 – CPP INVESTMENTS / VOTORANTIM / JV)

Candidate case for simplified procedure

(Text with EEA relevance)

(2022/C 134/13)

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(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

(2)  OJ C 366, 14.12.2013, p. 5.

Publication of an application for approval of an amendment, which is not minor, to a product specification pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs

(2022/C 134/14)

This publication confers the right to oppose the amendment application pursuant to Article 51 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council (1) within three months from the date of this publication.

APPLICATION FOR APPROVAL OF AN AMENDMENT TO THE PRODUCT SPECIFICATION OF PROTECTED DESIGNATIONS OF ORIGIN/PROTECTED GEOGRAPHICAL INDICATIONS WHICH IS NOT MINOR

Application for approval of an amendment in accordance with the first subparagraph of Article 53(2), of Regulation (EU) No 1151/2012

‘Valašský frgál’

EU No: PGI-CZ-0805-AM01-28.8.2020

PDO ( ) PGI (X)

1.   Applicant group and legitimate interest

Sdružení Valašské lidové tradice [Folk Traditions of Valašsko Association]

Pavla Stoklasová, Velké Karlovice 326

756 06 Velké Karlovice

Tel. + 420 736136364

Email: stoklasova.pavla@seznam.cz

The legitimate interest derives from the fact that the association (the applicant) is the legitimate producer and the user of the name ‘Valašský frgál’ and its members operate establishments in the defined area.

2.   Member State or Third Country

Czech Republic

3.   Heading in the product specification affected by the amendment(s)

☐ Name of product

☒ Description of product

☐ Geographical area

☐ Proof of origin

☒ Method of production

☐ Link

☐ Labelling

☐ Other [to be specified]

4.   Type of amendment(s)

☒ Amendment to product specification of a registered PDO or PGI not to be qualified as minor in accordance with the third subparagraph of Article 53(2) of Regulation (EU) No 1151/2012

☐ Amendment to product specification of registered PDO or PGI for which a Single Document (or equivalent) has not been published not to be qualified as minor in accordance with the third subparagraph of Article 53(2) of Regulation (EU) No 1151/2012

5.   Amendment(s)

I.   Amendments concerning the description of the product:

1.   amendment

i.

Point 4.2(1) of the Specifications a. After the seventh sentence of paragraph 1, the following two sentences should be added: ‘When distributed for sale for immediate consumption, the cakes may also be transported unpackaged in suitable containers to maintain quality and hygiene, subject to the labelling requirements of the legislation in force being met. They must not be repackaged; after being transported they are intended solely for direct sale.’ b. Grounds: This amendment responds to consumer demand (at markets and fairs) for unpackaged products to be sold for immediate consumption as well as allowing a whole ‘Valašský frgál’ to be assembled from parts with different toppings.

ii.

Point 3.2(6) of the Single Document a. The first sentence of paragraph 6 should be amended by adding ‘and when distributed for sale for immediate consumption’ and the following two new sentences should be added after the amended first sentence of paragraph 1: ‘Unpackaged cakes must be transported in suitable containers to maintain quality and hygiene, and the labelling requirements of the legislation in force must be met. They must not be repackaged; after being transported they are intended solely for direct sale.’ b. New wording of paragraph 6: ‘At the place of production and when distributed for sale for immediate consumption, the cakes may be sold unpackaged. Unpackaged cakes must be transported in suitable containers to maintain quality and hygiene, and the labelling requirements of the legislation in force must be met. They must not be repackaged; after being transported they are intended solely for direct sale.’ c. Grounds: See Part I, first amendment, and i(b), second amendment

2.   amendment

i.

Point 4.2 of the Specification ‘Characteristics’, sixth indent, and, accordingly, point 4.5 ‘Method of producing the various toppings’, sixth paragraph (concerning bilberry toppings) of the Specification a. The sixth indent should be amended by adding ‘the same is true for strawberry, cranberry and forest fruit toppings; the properties correspond to the type of fruit used’ and ‘the same is true for strawberry, cranberry and forest fruit toppings.’ should be added at the end of paragraph 6 (concerning bilberry toppings). b. Grounds: The range of fruit used for the topping needs to be expanded as a result of innovation driven by consumer demand and improved availability of raw materials.

ii.

Point 3.2(3) of the Single Document and, accordingly, point 3.3(10) of the Single Document too a. The words ‘strawberry, cranberry, forest fruits’ should be added to the list of fruit in brackets in the first sentence of point 3.2(3). b. The first sentence of point 3.3(10) should be amended by adding the following words: ‘the same is true for strawberry, cranberry and forest fruit toppings’. c. Grounds: See Part I, second amendment, point i(b).

3.   amendment

i.

Point 4.2, ‘Composition’, first sentence, of ‘Specification’ a. The words ‘semi-coarse’ and ‘or blend of fine-ground, semi-coarse and coarse flour’ should be deleted. b. Grounds: Producers traditionally use different blends of types of wheat flour without this affecting the product’s final characteristics, so the information about the types of wheat flour should be deleted for the sake of clarity.

ii.	Point 3.3(1) of the Single Document a. The words ‘semi-coarse wheat flour and/or a blend of three types of flour (fine-ground, semi-coarse and coarse)’ should be deleted. b. Grounds: See Part I, third amendment, point i(b).

4.   amendment

i.

Point 4.2 et seq. of the Specifications a. The word ‘sweetener’ is therefore replaced by ‘natural sweetener (fructose)’ throughout the document. b. Grounds: For the sake of terminological accuracy and clarity, one of the raw materials (the type of sweetener) needs to be harmonised throughout the document.

ii.	Point 3.3 et seq. of the Single Document a. The word ‘sweetener’ is therefore replaced by ‘natural sweetener (fructose)’ throughout the document. b. Grounds: See Part I, fourth amendment, point i(b).

5.   amendment

i.

Point 4.2 et seq. of the Specifications a. The term ‘egg yolks’ should be followed by ‘or whole eggs’ throughout the document. b. Grounds: In view of the variations between individual producers’ family recipes arising from the current specifications, the use of whole eggs, while relatively uncommon, cannot be excluded, as their use does not alter the product’s final characteristics.

ii.	Point 3.3 et seq. of the Single Document a. The term ‘egg yolks’ should be followed by ‘or whole eggs’ throughout the document. b. Grounds: See Part I, fifth amendment, point i(b).

6.   amendment

i.

Point 4.2 ‘Composition’, first sentence, of ‘Specification’ a. The words ‘fruit juices (lemon, apple, pear)’ should be moved and inserted after the first sentence as a second sentence with the following wording: ‘Fruit juices (lemon, apple, pear) may be added.’ b. Grounds: In the interests of consistency with the first sentence of ‘Composition’, the list of ingredients needs to be amended. Moreover, given the variations between individual producers’ family recipes arising from the current specifications, the rules on the use of fruit juices need to be amended. The variability results from the current wording of the final sentence of point 4.2 ‘Composition’.

ii.	Point 3.3(1) of the Single Document a. The words ‘fruit juices (lemon, apple, pear)’ should be moved and inserted after the first sentence as a second sentence with the following wording: ‘Fruit juices (lemon, apple, pear) may be added.’ b. Grounds: See Part I, sixth amendment, point i(b).

7.   amendment

i.

Point 4.2 ‘Composition’ of ‘Specification’ a. The words ‘total weight of the dough’ should be replaced throughout this paragraph by ‘total weight of the flour’. b. Grounds: After the geographical indication had been registered, rigorous checks on the proportions of raw materials used to make the dough revealed a formal error, with the proportions of individual raw materials used to make the dough mistakenly being stated in relation to the final weight of the dough. They should in fact be stated in relation to the weight of the flour. The proportions of raw materials must be in relation to the flour, otherwise the dough would be unusable.

ii.	Point 3.3(2) of the Single Document a. The words ‘total weight of the dough’ should be replaced throughout this paragraph by ‘total weight of the flour’. b. Grounds: See Part I, seventh amendment, point i(b).

II.   Amendments concerning the ‘Method of production’:

1.   amendment

i.

Point 4.5(1), final sentence, of the Specifications a. After the final sentence of paragraph 1, the following two sentences should be added: ‘When distributed for sale for immediate consumption, unpackaged cakes must be transported in suitable containers to maintain quality and hygiene and the labelling requirements of the legislation in force must be met. The cakes must not be repackaged; after being transported they are intended solely for direct sale.’ b. Grounds: See Part I, first amendment, point i(b).

2.   amendment

i.

Point 4.5 ‘Method of producing the various toppings’ in the third paragraph (concerning carrot toppings) of the Specification a. The following should be added to the second sentence: ‘or, depending on local customs, only drinking water,’. b. The second sentence should now read: ‘Sugar or natural sweetener and milk or, depending on local customs, only drinking water are added and the mixture is boiled.’ c. Grounds: Given the variations between individual producers’ family recipes arising from the current specifications, the rules on the use of certain ingredients in that type of topping need to be amended.

3.   amendment

i.

Point 4.5 of ‘Method of producing the various toppings’ in the sixth paragraph (concerning bilberry toppings) of the Specification a. The whole paragraph needs to be reworded. b. Previous text: ‘Bilberry topping is a combination of bake-stable bilberry jam and fresh, stewed or frozen bilberries, which are spread across the bilberry jam.’ c. New wording (together with the second amendment in ‘Amendments concerning the description of the product’ of this application): ‘Bilberry topping is made from fresh, stewed or frozen bilberries, which may be spread onto bake-stable jam, and the same goes for strawberry, cranberry and forest fruit toppings.’ d. Grounds: The range of fruit used for toppings needs to be expanded as a result of innovation driven by consumer demand and improved availability of raw materials. Furthermore, given the variations between individual producers’ family recipes under the current specifications, resulting from family and local traditions and the varying social status of bakers and their customers, the rules on this type of topping need to be amended.

4.   amendment

i.

Point 4.5 of ‘Method of producing the various toppings’ in the seventh paragraph (concerning apricot toppings) of the Specification a. The whole paragraph needs to be reworded. b. New wording: ‘Apricot topping is made from fresh, stewed or frozen apricots, cut into smaller pieces, which may be spread onto bake-stable jam.’ c. Grounds: See Part II, third amendment, point i(d).

5.   amendment

i.

Point 4.5 of ‘Method of producing the various toppings in the eleventh paragraph (concerning carrot toppings) of the Specification a. The word “added” in the second sentence should be replaced by “may be added”. b. Grounds: Given the variations between individual producers’ family recipes arising from the current specifications, the rules on this type of topping need to be amended. The variability results from the current wording of the final sentence of point 4.2 “Composition”.

ii.

Point 3.3 in paragraph 15 of the Single Document a. The word “poppyseed” should be moved and inserted at the end of paragraph 15 with the following wording: “poppyseed may be added.” b. New wording: Carrot topping: fresh carrots, beet sugar or natural sweetener, vanilla sugar, butter, vegetable fat, vegetable oil, fine-ground wheat flour, drinking water, ground cinnamon, salt; poppyseed may be added. c. Grounds: See Part I, fifth amendment, point i(b).

III.   Editorial amendments

1.   amendment

In line with the new form for the Single Document, point 5 of the Single Document has been restructured by removing duplicated information and clarifying the whole text for the purposes of the new form. This is a purely formal amendment; there is no change to the Specification.

2.   amendment

In accordance with the changes to the legislation, the numbering of the Single Document needs to be brought into line with the current form.

3.   amendment

In point 2 of the Specification “Group”, the name of the group needs to be changed and the contract address and contact details need to be amended.

IV.   Amendments concerning only the Single Document

1.   amendment

Point 3 of the Single Document - Specific steps in production that must take place in the identified geographical area

a.	The words “slicing” should be inserted in the first sentence.

b.

New wording: “All steps, from the making of the dough (because of the method used, as the dough contains yeast, there cannot be any delays between the individual steps in production) to the spreading of the topping and the baking of the cake and its subsequent slicing and packaging, must take place in the defined geographical area in the interests of maintaining quality and hygiene.”

c.	Grounds: The clarification is needed to eliminate significant ambiguities, as the logical sequence of handling the cakes makes information on slicing crucial to the definition of the overall process of producing the cakes, which is in line with fourteenth sentence of paragraph 4.5(1).

2.   amendment

Point 3 of the Single Document “Specific rules concerning slicing, grating, packaging, etc.”

a.	The following sentence should be added: “The cakes may be sold unpackaged for immediate consumption.”

b.	Grounds: The amendment is necessitated by the wording of the seventh sentence of point 4.2(1) of the Specification and the first amendment resulting from Part I of this application.

SINGLE DOCUMENT

“VALAŠSKÝ FRGÁL”

EU No: PGI-CZ-0805-AM01 – 28.8.2020

PDO ( ) PGI (X)

1.   Name(s) [(PDO or PGI)]

“Valašský frgál”

2.   Member State or Third Country

Czech Republic

3.   Description of the agricultural product or foodstuff

3.1.   Type of product (as in Annex XI)

Class 2.3.

Bread, pastry, cakes, confectionery, biscuits and other baker’s wares

3.2.   Description of product to which the name in (1) applies

A round cake with a diameter of 30-32 cm. Also known colloquially as “vdolek”, “pecák” or “lopaťák”, it is made from a fine yeast-based dough and has a topping.

After baking, the colour of the cake is golden, whereas that of the topping is characteristic of the topping used, with a light-coloured crumble on the surface, which may be sprinkled with gingerbread crumbs and ground cinnamon, drizzled with butter and sprinkled with sugar.

The types of topping used are pear, curd cheese, poppyseed, povidla, fruit (plum, apple, bilberry, apricot, strawberry, cranberry, forest fruits), nut, cabbage (fresh cabbage or sauerkraut), carrot and kohlrabi. The topping accounts for about 42-48 % of the whole product.

The cake is placed on a circular paper base and most commonly packaged in a heat-shrinkable wrapper or another kind of food-grade wrapper used on the market. It may also be packaged in a carton, a plastic or wooden box or a greaseproof-paper wrapping.

Types of packaging: whole cakes: 600-700 g; halves 300-350 g; quarters: 150-175 g.

At the place of production and when distributed for sale for immediate consumption, the cakes may be sold unpackaged. Unpackaged cakes must be transported in suitable containers to maintain quality and hygiene, and the labelling requirements of the legislation in force must be met. They must not be repackaged, after being transported they are intended solely for direct sale.’

‘Valašský frgál’ may also be marketed frozen. The freezing process does not alter the product’s properties. It is placed in the freezer already packaged. The frozen product may be stored at a temperature of -18 °C or less for nine months. It is recommended that it be consumed within 24 hours after being defrosted. The necessary shelf-life and storage information is given on the packaging.

3.3.   Feed (for products of animal origin only) and raw materials (for processed products only)

The following raw materials are used to make the dough: wheat flour, beet sugar or natural sweetener (fructose), vegetable fats or vegetable oil or lard or butter, pasteurised or fresh egg yolks or pasteurised or fresh whole eggs, milk powder or fresh milk or drinking water, bakers’ yeast and salt; nowadays, it is permitted to add an improver to the dough in order to keep the product fresh. Fruit juices (lemon, apple, pear) may be added.

The main ingredient is flour; the proportions of the other ingredients by weight must be as follows: fat (vegetable fat or oil or lard or butter) – at least 20 % of the total weight of the flour, sugar or natural sweetener (fructose) – at least 10 % of the total weight of the flour (if a natural sweetener is used, the amount used depends on its sweetness), egg yolks or whole eggs – at least 5 % of the total weight of the flour. The amount of fruit juice, yeast, salt and other flavour-imparting raw materials depends on the recipe used by individual producers.

The topping must account for about 42-48 % of the total weight of a ‘Valašský frgál’ before baking.

The following raw materials are used to make the topping:

Pear topping: pear curd made from dried pears, plum curd or fruit jam, dried apples, grated gingerbread, ethyl oxyhydrate-based flavouring (hereinafter ‘flavouring’), ground star anise, vanilla sugar, drinking water.

Curd-cheese topping: soft curd cheese, beet sugar or natural sweetener, pasteurised or fresh egg yolks or pasteurised or fresh whole eggs, drinking water, raisins, vanilla sugar or vanilla custard, fruit juice (optional), vegetable oil, flavouring, ground mace, curd-cheese stabiliser, forest fruit.

Poppyseed topping: ground poppyseed, beet sugar or natural sweetener, milk powder or fresh milk, drinking water, vegetable fat, fine-ground wheat flour, vanilla sugar, raisins, breadcrumbs, ground cinnamon, flavouring.

Povidla (fruit preserve) topping: plum povidla, vanilla sugar or natural sweetener, drinking water, flavouring.

Apple topping: grated apple or stewed apple, beet sugar or natural sweetener, vanilla sugar, ground cinnamon, chopped nuts, raisins, drinking water.

Nut topping: ground nuts (walnuts, hazelnuts or a mixture), beet sugar or natural sweetener, fine-ground wheat flour, milk, butter or vegetable fat or vegetable oil, breadcrumbs, apricot jam, drinking water, raisins, vanilla sugar, flavouring.

Carrot topping: fresh carrots, beet sugar or natural sweetener, vanilla sugar, butter, vegetable fat, vegetable oil, fine-ground wheat flour, drinking water, ground cinnamon, salt; poppyseed may be added.

Bilberry topping: fresh, stewed or frozen bilberries, bilberry jam. The same is true for strawberry, cranberry and forest fruit toppings.

Apricot topping: fresh, stewed or frozen apricots, apricot jam.

Plum topping: fresh, stewed or frozen plums, plum povidla, ground poppyseed, beet sugar or natural sweetener.

Cabbage topping: shredded fresh cabbage or well-rinsed sauerkraut, beet sugar or natural sweetener, butter or vegetable fat or vegetable oil, fine-ground wheat flour, drinking water, ground black pepper, salt.

Kohlrabi topping: fresh kohlrabi, beet sugar or natural sweetener, butter or vegetable fat or vegetable oil, fine-ground wheat flour, lemon juice or apple juice, drinking water, ground black pepper, fresh or dried parsley, salt.

3.4.   Specific steps in production that must take place in the identified geographical area

All steps, from the making of the dough (because of the method used, as the dough contains yeast, there cannot be any delays between the individual steps in production) to the spreading of the topping and the baking of the cake and its subsequent slicing and packaging, must take place in the defined geographical area in the interests of maintaining quality and hygiene. The production of the topping itself does not have to take place in the defined area.

3.5.   Specific rules concerning slicing, grating, packaging, etc. of the product the registered name refers to

Slicing and packaging on the producer’s premises is necessitated by the nature of the product, which is intended for rapid consumption, and in order to maintain quality. If the finished product were to be transported unpackaged, its quality would be impaired owing to breaking or bending, or to the infringement of hygiene rules. Moreover, it is necessary to affix to the product packaging a label giving details of the producer, the composition of the product and all other mandatory details that guarantee that it originates in the defined area and that are used as the basis for any inspection that might be carried out. The cakes may be sold unpackaged for immediate consumption.

3.6.   Specific rules concerning labelling of the product to which the registered name refers

Producers of ‘Valašský frgál’ must indicate the name ‘Valašský frgál’ clearly on the product packaging. The protected geographical indication logo will also be placed on the packaging for the purposes of consumer information, checking by the inspection body and product traceability. If the product is sold unpackaged, it must be clearly indicated at the point of sale that ‘Valašský frgál’ is on sale there, and it must meet the labelling requirements of the legislation in force.

4.   Concise definition of the geographical area

Valašsko, which is a geographical region in the south-east of the Czech Republic. It comprises the following municipalities (from east to west): Velké Karlovice, Horní Bečva, Čeladná, Kunčice pod Ondřejníkem, Kozlovice, Měrkovice, Tichá, Vlčovice, Kopřivnice, Štramberk, Lichnov, Veřovice, Mořkov, Hodslavice, Straník, Kojetín, Loučka, Bernartice, Hůrka, Starojická Lhota, Vysoká, Hustopeče, Milotice, Špičky, Skalička, Horní Tešice, Rouské, Všechovice, Provodovice, Komárno, Podhradní Lhota, Rajnochovice, Držková, Rusava, Lukoveček, Fryšták, Mladcová, Zlín-Prštné, Zlín-Jaroslavice, Březnice, Želechovice, Lípa, Zádveřice, Vizovice, Slopné, Haluzice, Vlachovice, Vrbětice, Popov, Jestřábí, Štítná nad Vláří, Bylnice, Brumov, Nedašov, Nedašova Lhota, Študlov, Střelná, Francova Lhota, Valašská Senice, Hovězí, Halenkov and Nový Hrozenkov.

5.   Link with the geographical area

This application is based both on the specificity of the product and on its reputation throughout Valašsko and beyond. The first written records of large cakes called vdolek or frgál are to be found in a chronicle dating from 1826 entitled ‘Bromatologia moravo-rustica’ by J.H.A. Gallaš. It contains details of cakes made from wheat or rye flour and topped with curd cheese, povidla or a spread made from stewed and puréed dried pears typical of this region, which are made only in the defined area of Valašsko.

‘Valašský frgál’ is made according to traditional recipes from the defined area found in written records dating from 1826. The folk tradition of baking this specific cake is linked in particular to festive occasions in Valašsko, such as weddings, christenings, Christmas and Easter and the end of the harvest. Poor families ate it only at Christmas. Wealthier families also ate it on Sundays. The size of the cake (30-32 cm in diameter) came about because the whole surface of the peel, which was used to put bread into the oven, was used. These cakes were made mainly from home-produced raw materials, in particular dried fruit, curd cheese, home-ground flour, butter, lard, linseed oil, eggs and milk.

‘Valašský frgál’ with pear topping is the most famous type, the topping being made from dried pears. Traditionally, there was a pear tree next to every building in Valašsko. The most common variety of pear was known as ‘ovesňanka’, which, although small, had succulent and very sweet flesh. Other varieties of pear, in particular those which ripen in the autumn months, were also suitable for drying. They always had to be left until the onset of the first ground frosts to ripen properly. The pears were then slowly dried whole in a drying chamber that was heated by burning wood, preferably from fruit trees. It was very important that they dried out thoroughly and were then stored in woven bags hung up in attics. The recipes for making curd from dried pears and for making these large pasties with this and other toppings have been handed down from generation to generation for several centuries.

‘Valašský frgál’ differs from other cakes in particular by virtue of the following characteristics:

The method of making the dough and its composition: the runnier ingredients are first whisked together until they form a smooth paste. The fats, which have been softened, are then added and everything is again whisked together to obtain a smooth paste. Only then is the leavening agent added, and after that the flour is added gradually to form a smooth dough, which must be mixed until bubbles form (it contains a lot of air) and must not stick.

—	The dough is rolled into a round shape using a one-hand rolling pin that also originates in Valašsko. The even rolling-out of the dough from the centre to the edges means that, although thin, it is dense, soft and fine-textured when baked.

—	The use of a single kind of spread – or topping – on a frgál is also typical for Valašsko. This is a tradition; as historical sources also state, there is never more than one type of topping on a frgál. The most typical topping used is dried pear.

—	Another specific feature of ‘Valašský frgál’ is its high topping content, which accounts for about 42-48 % of the cake’s weight before baking.

In the 19th century, the reputation of these cakes spread as far away as Prague, the capital city. When the national exhibition was held at Holešovice in Prague at the end of the 19th century, they were brought from Valašsko along with many other products and were greatly admired. ‘Valašský frgál’ has maintained its reputation to the present day (a great deal of information can be found on the internet, in the regional and national press and in tourist guides) and has won a number of awards at exhibitions and fairs (Zlatá Salima 2006 and 2008, Perla Zlínska 2006, 2007 and 2008, Trendy 2006, HIT 2006 Moderní obchod, Značka kvality KLASA in 2007).

Reference to publication of the product specification

https://isdv.upv.cz/doc/vestnik/2021/vestnik_UPV_202108.pdf#page=187

Věstník No 8, 24.2.2021, p. 187 et seq.

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(1)  OJ L 343, 14.12.2012, p. 1.

Corrigendum to Notice of open competition – EPSO/AST/151/22 – Assistants (AST 4) in Information and Communication Technology (ICT) in the following fields: 1. ICT infrastructures, cloud, networks and middleware, 2. Digital workplace, office automation and mobile computing, 3. Development/configuration, testing, operation and maintenance of IT applications and off-the-shelf solutions; data management, data analytics and artificial intelligence, 4. ICT security

( Official Journal of the European Union C 76 A of 17 February 2022 )

(2022/C 134/15)

On page 43, Annex II ‘General rules governing open competitions’, point 1.1(b), last dash:

for:

‘—	part-time work: calculated pro rata on the basis of the number of hours worked, e.g. half-time for 6 months would count as 6 months.’,

read:

‘—	part-time work: calculated pro rata on the basis of the number of hours worked, e.g. half-time for 6 months would count as 3 months.’.