22.2.2008   

EN

Official Journal of the European Union

L 48/1

(1)

By Regulation (EC) No 130/2006 (2) (the original Regulation) the Council imposed a definitive anti-dumping duty on imports of tartaric acid originating in the People’s Republic of China (PRC).

(2)

The Commission received a request from CU Chemie Uetikon GmbH (‘the applicant’), an importer from Germany, for a partial interim review pursuant to Article 11(3) of the basic Regulation. The applicant alleged that the so-called D-(-) type is a distinct product from other types of tartaric acid, due to its specific molecular structure, which in turns determines specific chemical characteristics not shared by other types of the product concerned and should not be therefore subject to the abovementioned measures.

(3)

Having determined, after consulting the Advisory Committee, that sufficient evidence existed for the initiation of a partial interim review, the Commission, on 17 March 2007, initiated an investigation (3) according to Article 11(3) of the basic Regulation. The investigation was limited in scope to the definition of the product covered by the measures in force.

(4)

The Commission officially advised the applicant importer, the authorities of the exporting country and all parties known to be concerned, of the initiation of this review. Questionnaires were sent to Community producers, importers, users and exporting producers who cooperated in the investigation that led to the existing measures. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set out in the notice of initiation.

(5)

Two questionnaire replies were received and one party was granted a hearing.

(6)

The Commission sought and verified all the information it deemed necessary for the purpose of assessing whether the scope of the measures should be amended and carried out investigations at the premises of the following companies:

(7)

The investigation period covered the period from 1 January 2006 to 31 December 2006.

(8)

The product concerned, as defined in the original Regulation, is tartaric acid originating in the People’s Republic of China, currently classifiable within CN code 2918 12 00. The product concerned is used in wine, in beverage and food additives, as a retardant in plaster and in numerous other products. It can be obtained either form the by-products of wine making, as is the case with all Community producers, or via chemical synthesis from petrochemical compounds, as is the case with all PRC exporting producers.

(9)

Tartaric acid is a ‘chiral’ molecule, i.e. it exists in different geometric configurations. The ‘L-(+)’ and ‘D-(-)’ types (hereinafter ‘L’ and ‘D’ tartaric acid respectively), whose molecules are a mirror image of each other, are of particular relevance. Those types of tartaric acid are distinguished in widely accepted industry references such as Chemical Abstract Services (CAS) or European Inventory of Existing Commercial Chemical Substances (Einecs). They can be readily distinguished from one another through a test which measures the rotation of polarised light. The direction of rotation for ‘L’ tartaric acid is positive while that for ‘D’ tartaric acid is negative.

(10)

The investigation which led to the measures in force focused on naturally-occurring tartaric acid. It was found that the product manufactured and sold by the Chinese producers had the same basic characteristics as the product of the Community industry, and was in competition with the latter for a majority of the abovementioned applications.

(11)

‘D’ tartaric acid, on the other hand, is not naturally-occurring and can only be obtained via chemical synthesis. This type of tartaric acid is not produced by the Community industry and it is not recognised in the Community as a food additive. Its known applications are in the pharmaceutical industry, in the production of certain auxiliary substances which are themselves used to produce the active ingredients of medicines. Either ‘L’ or ‘D’ tartaric acid can be used in this type of pharmaceutical applications, depending on the intended characteristics of the end product. However, the ‘D’ and ‘L’ types cannot be substituted for one another within any single application. These conclusions were confirmed by the fact that the applicant, a company producing auxiliary substances for the pharmaceutical industry, purchased and used both ‘L’ and ‘D’ tartaric acid in the manufacture of its products, rather than just using one (less expensive) type of tartaric acid.

(12)

The investigation has also shown that the price of ‘D’ tartaric acid is 4 to 5 times higher than that of other types of tartaric acid, which is a result of the different production process used in its manufacture. This higher price restricts the market for ‘D’ tartaric acid to applications such as mentioned above, where other, less expensive types of tartaric acid cannot be used. As a result of those differences in application and costs, the size of the market for ‘D’ tartaric acid is estimated to be less than 1 % of the overall market for tartaric acid.

(13)

In summary, the investigation has found that ‘D’ tartaric acid has substantially different physical and chemical characteristics from those of ‘L’ tartaric acid produced by the Community industry, meaning that the two types are not interchangeable and not competing in the Community market. Given those differences between ‘D’ tartaric acid and the product investigated, it is concluded that ‘D’ tartaric acid should not be covered by the product scope of the measures.

(14)

The above conclusions were based on the characteristics of pure ‘D’ tartaric acid, and therefore do not apply to any mixtures of ‘D’ tartaric acid with other products.

(15)

Interested parties were informed of the above conclusions.

(16)

The Community industry, while not questioning the findings of the investigation, expressed its concern that exempting one product type could facilitate the circumvention of the measures.

(17)

It is considered, however, that given the differences in prices and quantities involved, circumvention can promptly be detected through statistical data. Furthermore, ‘D’ tartaric acid can be easily distinguished from other types through an optical test as mentioned above.

(18)

The Commission will monitor the import data of ‘D’ tartaric acid and the other types which are subject to measures. Should the quantities and/or prices of imports of ‘D’ tartaric acid into any Member State depart from the normal trend, the Commission will immediately alert the appropriate customs authorities.

(19)

Given the above, it is considered appropriate to amend the original Regulation to clarify the product definition and to exclude ‘D’ tartaric acid from the measures.

(20)

Since the present review investigation is limited to the clarification of the product scope and since it was not intended this product type be covered by the original measures, in order to prevent any consequent prejudice to importers of the product, it is considered appropriate that the findings be applied from the date of the entry into force of the original Regulation, including any imports subject to provisional duties between 30 July 2005 and 28 January 2006. Moreover, in particular in view of the relatively recent entry into force of the original Regulation and of the expected limited number of requests for refunds, there is no overriding reason not to provide for such retroactive application.

(21)

Consequently, for goods not covered by Article 1(1) of Regulation (EC) No 130/2006 as amended by this Regulation, the definitive anti-dumping duties paid or entered in the accounts pursuant to Article 1(1) of Regulation (EC) No 130/2006 in its initial version should be repaid or remitted.

(22)

Repayment or remission must be requested from national customs authorities in accordance with applicable customs legislation.

(23)

This review does not affect the date on which Regulation (EC) No 130/2006 will expire pursuant to Article 11(2) of the basic Regulation,

22.2.2008   

EN

Official Journal of the European Union

L 48/4

(1)

Regulation (EC) No 1580/2007 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.

(2)

In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,

22.2.2008   

EN

Official Journal of the European Union

L 48/6

(1)

Commission Regulation (EC) No 581/2004 of 26 March 2004 opening a standing invitation to tender for export refunds concerning certain types of butter (2) provides for a permanent tender.

(2)

Pursuant to Article 5 of Commission Regulation (EC) No 580/2004 of 26 March 2004 establishing a tender procedure concerning export refunds for certain milk products (3) and following an examination of the tenders submitted in response to the invitation to tender, it is appropriate not to grant any refund for the tendering period ending on 19 February 2008.

(3)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,

22.2.2008   

EN

Official Journal of the European Union

L 48/7

(1)

Article 13(1) of Regulation (EEC) No 2759/75 provides that the difference between prices on the world market for the products listed in Article 1 of that Regulation and prices for these products within the Community may be covered by an export refund.

(2)

Given the present situation in the market in pigmeat, export refunds should therefore be fixed in accordance with the rules and criteria provided for in Article 13 of Regulation (EEC) No 2759/75.

(3)

Article 13(3) of Regulation (EEC) No 2759/75 provides that the world market situation or the specific requirements of certain markets may make it necessary to vary the refund on the products listed in Article 1 of Regulation (EEC) No 2759/75 according to destination.

(4)

Refunds should be granted only on products that are allowed to move freely in the Community and that bear the health mark as provided for in Article 5(1)(a) of Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (2). Those products should also comply with the requirements of Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (3) and of Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption (4).

(5)

The Management Committee for Pigmeat has not delivered an opinion within the time limit set by its chairman,

22.2.2008   

EN

Official Journal of the European Union

L 48/9

(1)

Article 31(1) of Regulation (EC) No 1255/1999 provides that the difference between prices in international trade for the products listed in Article 1(a), (b), (c), (d), (e), and (g) of that Regulation and prices within the Community may be covered by an export refund.

(2)

Commission Regulation (EC) No 1043/2005 of 30 June 2005 implementing Council Regulation (EC) No 3448/93 as regards the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds (2), specifies the products for which a rate of refund is to be fixed, to be applied where these products are exported in the form of goods listed in Annex II to Regulation (EC) No 1255/1999.

(3)

In accordance with the first paragraph of Article 14 of Regulation (EC) No 1043/2005, the rate of the refund per 100 kilograms for each of the basic products in question is to be fixed each month.

(4)

However, in the case of certain milk products exported in the form of goods not covered by Annex I to the Treaty, there is a danger that, if high refund rates are fixed in advance, the commitments entered into in relation to those refunds may be jeopardised. In order to avert that danger, it is therefore necessary to take appropriate precautionary measures, but without precluding the conclusion of long-term contracts. The fixing of specific refund rates for the advance fixing of refunds in respect of those products should enable those two objectives to be met.

(5)

Article 15(2) of Regulation (EC) No 1043/2005 provides that, when the rate of the refund is being fixed, account is to be taken, where appropriate, of production refunds, aids or other measures having equivalent effect applicable in all Member States in accordance with the Regulation on the common organisation of the market in the product in question to the basic products listed in Annex I to Regulation (EC) No 1043/2005 or to assimilated products.

(6)

Article 12(1) of Regulation (EC) No 1255/1999 provides for the payment of aid for Community-produced skimmed milk processed into casein if such milk and the casein manufactured from it fulfil certain conditions.

(7)

Commission Regulation (EC) No 1898/2005 of 9 November 2005 laying down detailed rules for implementing Council Regulation (EC) No 1255/1999 as regards measures for the disposal of cream, butter and concentrated butter (3), lays down that butter and cream at reduced prices should be made available to industries which manufacture certain goods.

(8)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,

22.2.2008   

EN

Official Journal of the European Union

L 48/12

(1)

In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation.

(2)

Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific Community provisions, with a view to the application of tariff and other measures relating to trade in goods.

(3)

Pursuant to those general rules, the goods described in column 1 of the table set out in the Annex should be classified under the CN code indicated in column 2, by virtue of the reasons set out in column 3 of that table.

(4)

It is appropriate to provide that, subject to the measures in force in the Community relating to double checking systems and to prior and retrospective Community surveillance of textile products on importation into the Community, binding tariff information issued by the customs authorities of Member States in respect of the classification of goods in the Combined Nomenclature and which is not in accordance with this Regulation, can continue to be invoked for a period of 60 days by the holder, under Article 12(6) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (2).

(5)

The Customs Code Committee has not issued an opinion within the time limit set by its Chairman,

22.2.2008   

EN

Official Journal of the European Union

L 48/14

(1)

The additive monensin sodium (Coxidin) was authorised under certain conditions in accordance with Regulation (EC) No 1831/2003. Commission Regulation (EC) No 109/2007 (2) authorised that additive for 10 years for use for chickens for fattening and turkey, linking the authorisation to the holder of authorisation for putting that additive into circulation.

(2)

Regulation (EC) No 1831/2003 provides for the possibility of modifying the authorisation of an additive further to a request from the holder of the authorisation and an opinion of the European Food Safety Authority (the Authority).

(3)

The holder of the authorisation of the feed additive monensin sodium (Coxidin) has submitted an application which proposes changing the terms of the authorisation by reducing the minimum content of that additive as regards use for turkeys.

(4)

In its opinion adopted on 18 September 2007, the Authority has proposed to reduce the minimum content of the additive for turkeys from 90 mg to 60 mg per kg of complete feedingstuff because it can be considered efficacious in the control of coccidiosis (3).

(5)

Regulation (EC) No 109/2007 should therefore be amended accordingly.

(6)

The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

22.2.2008   

EN

Official Journal of the European Union

L 48/16

(1)

Article 41(2) of Commission Regulation (EC) No 105/2008 of 5 February 2008 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in butter (2) stipulates that the amount of aid for private storage referred to in Article 6(3) of Regulation (EC) No 1255/1999 is to be fixed each year.

(2)

The third subparagraph of Article 6(3) of Regulation (EC) No 1255/1999 specifies that the aid shall be fixed in the light of storage costs and the likely trend in prices for fresh butter and butter from stocks.

(3)

Regarding storage costs, notably the costs for entry and exit of the products concerned, the daily costs for cold storage and the financial costs of storage should be taken into account.

(4)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,

—

EUR 15,62 for fixed storage costs,

—

EUR 0,23 for the costs of cold storage for each day of contractual storage,

—

an amount per day of contractual storage, calculated on the basis of 90 % of the intervention price for butter in force on the day the contractual storage begins and on the basis of an annual interest rate of 4,25 %.

22.2.2008   

EN

Official Journal of the European Union

L 48/17

(1)

Pursuant to the first subparagraph of Article 6(2) of Regulation (EC) No 510/2006 and in accordance with Article 17(2) thereof, Germany's applications to register the names ‘Salate von der Insel Reichenau’, ‘Gurken von der Insel Reichenau’, ‘Feldsalat von der Insel Reichenau’ and ‘Tomaten von der Insel Reichenau’ were published in the Official Journal of the European Union  (2).

(2)

As no objections within the meaning of Article 7 of Regulation (EC) No 510/2006 were received by the Commission, these names should be entered in the Register,

22.2.2008   

EN

Official Journal of the European Union

L 48/19

(1)

Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (3) and Commission Regulation (EC) No 2090/2002 of 26 November 2002 laying down detailed rules for applying Council Regulation (EEC) No 386/90 as regards physical checks carried out when agricultural products qualifying for refunds are exported (4) provide for the rules concerning physical controls and substitution checks by customs on export products for which an export refund is claimed. In the light of experience gained, problems mentioned by Member States in their annual reports on physical checks and recommendations of the European Court of Auditors, appropriate amendments are required.

(2)

Before affixing seals the customs office of export should visually check the conformity between the refund products and the documents. Visual conformity checks aim at improving the general control measures in the framework of the customs procedure and they are of a different nature than substitution checks as described in Article 10(4) of Regulation (EC) No 2090/2002 or physical checks as described in Article 5 of the same Regulation. The visual conformity check shall confirm to customs that the products loaded are of the kind as mentioned in the documents. In principle products or goods are not unloaded and packaging is not opened or removed. In case a visual conformity check reveals that the conformity could be a problem, customs can decide to execute a physical check in accordance with Regulation (EEC) No 386/90. A minimum level of 10 % of visual conformity checks is deemed to be effective, proportionate and dissuasive. For information reasons, the customs office of export should note its conformity check on the control copy T5 or its equivalent.

(3)

Customs should be informed on the rate of export refunds at stake when selecting export declarations for physical or substitution checks. This information should therefore be mentioned in the export declaration and in the control copy T5 or equivalent document. However, in some Member States the authorities concerned already dispose of the same information. Consequently exporters may be exempted from the obligation to mention this information either in the export declaration, or in the T5 control copy or equivalent document, or in both.

(4)

In order to ensure effective application of the obligation to mention the export refund rate, provisions need to be laid down to deter inaccurate information. A suitable penalty system should therefore be established. In case of substantial differences between the refund calculated according to the export refund rate mentioned and the export refund actually applicable customs would be particularly misled not to execute the necessary controls. In particular if the exporter indicates a rate representing an export refund less than EUR 1 000 and the refund applicable is more than EUR 10 000, the penalty should be effective, proportionate and dissuasive.

(5)

In order to concentrate controls more on export products covering a relatively high amount of refunds, the selection thresholds, under which controls are generally disregarded for calculating the minimum control rates, expressed in quantities or in amounts of refunds are raised.

(6)

Predictability of customs controls due to a steady control pattern by customs authorities should be minimised. Therefore, customs authorities' timing of arriving at the exporter's premises and of executing controls should vary. In parallel, exporters should be more tightly bound to non-substitution of products after the export declaration was lodged and before customs arrive, by identifying the export products before their being loaded. The registration of customs authorities' physical controls should be adapted accordingly.

(7)

When a Member State applies the third subparagraph of Article 3(2) of Regulation (EEC) No 386/90 it should be possible to apply the specific provisions set up by Article 6 of Regulation (EC) No 2090/2002.

(8)

Substitution checks should be targeted to all exports which were not physically checked at the start of the procedure. The number of substitution checks and specific substitution checks together must cover a representative part of the exports leaving the Community's customs territory. The number of these checks should therefore be based on a percentage of the number of T5 control copies or equivalent documents, rather than in the number of days that refund products leave the Community's customs territory.

(9)

In order to decide whether substitution checks or specific substitution checks are required the customs office of exit should actively check the presence and soundness of seals. A minimum level of 10 % of checks on seals is deemed to be effective, proportionate and dissuasive.

(10)

The provisions on annual reports in Annex III to Regulation (EC) No 2090/2002 should be adapted accordingly.

(11)

Regulations (EC) No 800/1999 and (EC) No 2090/2002 should therefore be amended accordingly.

(12)

The Management Committees concerned have not delivered an opinion within the time limit set by their chairman,

1.

Article 5 is amended as follows:

2.

After Article 8, the following Article 8a is inserted:

‘Article 8a

The exporter shall mention the rate of export refunds in EUR per unit of products or goods on the date of advanced fixing, as mentioned in the export license or certificate of Regulation (EC) No 1291/2000 or the refund certificate of Chapter III of Regulation (EC) No 1043/2005 (5), in box 44 of the export declaration or its electronic equivalent and in box 106 of the control copy T5 or its equivalent. If the export refunds have not been fixed in advance, information on previous refund payments for the same products or goods not older than 12 months may be used. If the product or good to be exported does not cross the border of another Member State and if the national currency is not EUR, the rates of refunds may be mentioned in national currency.

The competent authorities may exempt the exporter of the requirements provided for in the first paragraph if the administration operates a system by which the services concerned are informed with the same information.

The exporter may choose to mention one of the entries listed in Annex XIV for export declarations and T5 control copies and equivalent documents covering an amount of export refunds less than EUR 1 000.

3.

In Article 51, the following paragraph 1a is inserted:

‘1a.   Without prejudice to the second paragraph of Article 8a, where it is found that the rate of export refund pursuant to Article 8a was not mentioned, the rate mentioned will be deemed to be zero. If the amount of export refund calculated according to the information pursuant to Article 8a is lower than the amount applicable, the refund due for the relevant exportation shall be that applicable to the products actually exported, reduced by:

The first subparagraph shall not apply if the exporter proves to the satisfaction of the competent authorities that the situation referred to in that subparagraph is due to force majeure, to obvious error, or, where applicable, that it was based on correct previous payment information.

The first subparagraph shall not apply when Article 51(1) applies for penalties based on the same elements fixing the right to export refunds.’;

4.

Annexes XIII and XIV, the text of which are set out in Annex I to this Regulation, are added.

1.

Article 2 is amended as follows:

2.

in Article 5(2), the following subparagraph is added:

‘Member States shall ensure that there are variations in the start of the physical check at the exporter’s premises by comparison with the indicated time for starting loading as referred to in Article 5(7) of Regulation (EC) No 800/1999.’;

3.

in Article 6, the following subparagraph is added:

‘When applying the third subparagraph of Article 3(2) of Regulation (EEC) No 386/90, a Member State may apply the rules provided for in the first subparagraph.’;

4.

in Article 8, paragraph 2 is replaced by the following:

‘2.   The competent customs officer shall produce a detailed inspection report on each physical check carried out.

Inspection reports shall at least bear:

The reports shall be kept accessible for consultation at the customs office which executed the physical control, or at one place in the Member State for three years from the year of export.’;

5.

Article 10 is amended as follows:

6.

in Annex I, paragraph 1, the following point (c) is added:

7.

Annex III is amended in accordance with the Annex II to this Regulation.

22.2.2008   

EN

Official Journal of the European Union

L 48/27

(1)

Pursuant to the first subparagraph of Article 6(2) of Regulation (EC) No 510/2006 and in accordance with Article 17(2) thereof, Italy's applications to register the names ‘Pane di Matera’ and ‘Tinca Gobba Dorata del Pianalto di Poirino’ were published in the Official Journal of the European Union  (2).

(2)

As no objections within the meaning of Article 7 of Regulation (EC) No 510/2006 were received by the Commission, these names should be entered in the Register,

22.2.2008   

EN

Official Journal of the European Union

L 48/29

(1)

Commission Regulation (EC) No 1484/95 (4), fixes detailed rules for implementing the system of additional import duties and fixes representative prices in the poultrymeat and egg sectors and for egg albumin.

(2)

It results from regular monitoring of the information providing the basis for the verification of the import prices in the poultrymeat and egg sectors and for egg albumin that the representative prices for imports of certain products should be amended taking into account variations of prices according to origin. Therefore, representative prices should be published.

(3)

It is necessary to apply this amendment as soon as possible, given the situation on the market.

(4)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Poultrymeat and Eggs,

22.2.2008   

EN

Official Journal of the European Union

L 48/31

(1)

The Protocol setting out, for the period from 18 January 2005 to 17 January 2011, the fishing opportunities and the financial contribution provided for by the Agreement between the European Economic Community and the Republic of Seychelles on fishing off Seychelles was adopted by Council Regulation (EC) No 115/2006 (1) on 23 January 2006.

(2)

In view of the extremely good utilisation of the current fisheries Agreement, the Seychelles authorities’ wish to strengthen the partnership and the Community authorities’ desire to bring this Protocol into line with other tuna protocols, the two Parties have initialled amendments to the existing Protocol in the form of an Exchange of Letters. The outcome of these amendments has been the subject of an Exchange of Letters and involves an increase in the reference tonnage, the introduction of financial support for the partnership and adjustment of the ratio between the shares paid by shipowners and the Community budget.

(3)

In order for these amendments to the current Protocol to apply from 18 January 2008, the Agreement in the form of an Exchange of Letters should be signed, subject to its definitive conclusion by the Council.

(4)

These amendments do not alter the allocation of fishing opportunities among the Member States,

22.2.2008   

EN

Official Journal of the European Union

L 48/37

(1)

The Community has negotiated with Côte d’Ivoire a Fisheries Partnership Agreement providing Community vessels with fishing opportunities in the waters over which Côte d’Ivoire has sovereignty or jurisdiction in respect of fisheries.

(2)

As a result of those negotiations, a new Fisheries Partnership Agreement was initialled on 5 April 2007.

(3)

The Agreement between the European Economic Community and the Republic of Cote d’Ivoire on fishing off the coast of Cote d’Ivoire (1) is repealed by the new Fisheries Partnership Agreement.

(4)

In order to guarantee the continuation of fishing activities by Community vessels, it is essential that the new Fisheries Partnership Agreement should be applied as quickly as possible. Both parties have therefore initialled an Agreement in the form of an Exchange of Letters providing for the provisional application from 1 July 2007 of the initialled Protocol attached to the new Fisheries Partnership Agreement.

(5)

It is in the Community’s interest to approve that Agreement in the form of an Exchange of Letters.

(6)

The method for allocating the fishing opportunities among the Member States should be defined,

22.2.2008   

EN

Official Journal of the European Union

L 48/64

(1)

On 24 January 2006 the Council adopted Decision 2006/116/EC appointing the members and alternate members of the Committee of the Regions for the period from 26 January 2006 to 25 January 2010 (1).

(2)

A seat as a member of the Committee of the Regions has fallen vacant following the end of the mandate of Mr GALLEGO CUESTA. Two seats as alternate members have fallen vacant following the end of the mandates of Mr MARTÍN MALLÉN and Mr SUÁREZ RODRÍGUEZ,

(a)

as a member:

and

(b)

as alternate members:

22.2.2008   

EN

Official Journal of the European Union

L 48/65

(1)

By letter dated 15 June 2004, the Commission was informed by a citizen of the United Kingdom that the Shetland Islands Council, the public authority in the Shetland Islands of the United Kingdom had implemented aid to the fisheries sector, which possibly concerned illegal state aid. By letters dated 24 August 2004, 4 February 2005, 11 May 2005 and 16 December 2005, the Commission requested the United Kingdom to provide information about such aid. By letters dated 10 December 2004, 6 April 2005, 8 September 2005 and 31 January 2006, the United Kingdom provided the Commission with further information.

(2)

By letter dated 13 September 2006, the Commission informed the United Kingdom that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the aid. The United Kingdom provided its comments on the aid by letters dated 16 October 2006 and 6 February 2007.

(3)

The Commission decision to initiate the procedure was published in the Official Journal of the European Union  (3). The Commission invited interested parties to submit their comments on the aid.

(4)

The Commission received no comments from interested parties.

(5)

The Shetland Islands Council made payments to the fisheries sector under the scope of two general aid measures, named ‘Aid to the Fish Catching and Processing Industry’ and ‘Aid to the Fish Farming Industry’, which actually consisted of several different types of aid schemes in force since the 1970's. One such scheme was the ‘Fishing Vessel Modernisation Scheme’ (‘the scheme’). Under the scheme, which applied from at least the 1980's until 14 January 2005, aid could be granted for the modernisation of fishing vessels, related to a major improvement, such as, for example, better storage of catches, replacement of the engine, improvements in working conditions or to crew safety.

(6)

Aid was granted up to 10 % of the total cost of the improvement project, with a maximum amount of GBP 40 000 per vessel. Only one application per year could be considered. Improvement projects which exceeded 50 % of the costs of a new vessel of the same type were not eligible, as well as work to vessels less than five years old. The works had to meet all the required standards specified by Shetland Seafood Quality Control.

(7)

All applicants had to hold a pressure stock licence and other relevant certificates of competency and applicants had to become members of the Shetlands Fishermen's Association.

(8)

The beneficiary of the aid had to undertake to operate the vessel full-time, to retain ownership of the vessel and to provide full-time employment for the vessel crew for a period of at least five years from receipt of the aid. Finally, beneficiaries had a yearly reporting obligation in order to prove that all conditions had been complied with and the scheme contained a provision for reimbursement of the aid in case of non-compliance with any of the conditions.

(9)

The Commission had serious doubts that the aid granted under the scheme after 1 July 2001 could be regarded as compatible with the requirements of the Guidelines for the examination of State aid to fisheries and aquaculture of 2001 (4) (‘2001 Guidelines’) in conjunction with Article 9 of Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (5), in particular with the conditions that no aid may be granted for modernisation of fishing vessels if it concerns capacity in terms of tonnage or of power.

(10)

In its letters dated 16 October 2006 and 6 February 2007, the United Kingdom provided further information on the individual aids granted under the scheme after 1 July 2001. In the period from August 2002 until June 2005, 23 aids were granted for vessel modernisation, concerning, amongst others, fish handling systems, fire fighting equipment, aid for winches or deck cranes and for engine replacement. The amount of aid granted varied between GBP 403 and GBP 7 090 per beneficiary.

(11)

As regards compliance with the condition of Article 9 of Regulation (EC) No 2792/1999 that no aid may be granted when the modernisation concerns capacity in terms of tonnage or of power, the United Kingdom stated that none of the improvements facilitated by the grants of aid affected the gross tonnage or the power of any vessel.

(12)

In addition, the United Kingdom provided information showing that none of the grants of aid exceeded 40 % of the eligible costs.

(13)

Finally, the United Kingdom maintained that if the Commission adopts a negative decision, recovery of aid granted prior to 3 June 2003 should not be required as it would be contrary to the principle of the protection of legitimate expectations. In that respect, the United Kingdom made reference to Commission Decision 2003/612/EC of 3 June 2003 on loans for the purchase of fishing quotas in the Shetland Islands (United Kingdom) (6) and Commission Decision 2006/226/EC of 7 December 2005 on Investments of Shetland Leasing and Property Developments in the Shetland Islands (United Kingdom) (7), stating that until 3 June 2003, the Shetland Islands Council legitimately considered the funds used for such aid to be private rather than public.

(14)

It must be determined firstly if the measure can be regarded as State aid and if so, if it is compatible with the common market. Aid has been granted to a limited number of companies within the fisheries sector, and is thus of a selective nature. The aid has been granted by the Shetland Islands Council from state resources. The aid benefited recipients which are in direct competition with other companies in the fisheries sector, both within the United Kingdom, and in other Member States. Therefore, the measures distort or threaten to distort competition and are to be considered State aid within the meaning of Article 87(1) of the EC Treaty.

(15)

As regards State aid to the fisheries sector, State aid is deemed to be compatible with the common market if it complies with the conditions of the Guidelines for the examination of State aid to fisheries and aquaculture (8) of 2004 (‘2004 Guidelines’). According to the second paragraph of point 5.3 of the 2004 Guidelines: ‘an “unlawful aid” within the meaning of Article 1(f) of Regulation (EC) No 659/1999 will be appraised in accordance with the guidelines applicable at the time when the administrative act setting up the aid has entered into force’. This is also in accordance with the general rules expressed in the Commission notice on the determination of the applicable rules for the assessment of unlawful State aid (9). The aid is thus to be assessed with regard to its compatibility with the 2001 Guidelines and the 2004 Guidelines.

(16)

According to point 2.2.3.2 of 2001 Guidelines, applicable to existing aid as from 1 July 2001, aid for the modernisation of commissioned vessels may be deemed compatible with the common market provided that it complies with the relevant requirements laid down in Regulation (EC) No 2792/1999.

(17)

Articles 6, 7, 9 and 10 of Regulation (EC) No 2792/1999 and Annex III thereto require that any entry of new capacity is to be compensated by the withdrawal of a capacity without public aid which is at least equal to the new capacity introduced in the segments concerned. Until 31 December 2001, where the objectives for the size of the fleet were not yet respected, the withdrawal of capacity should at least have been 30 % more than the new capacity introduced.

(18)

The aid may only be granted where the Member State has submitted the information concerning the application of the multiannual Guidance Programme (‘MAGP’), has complied with its obligations under Council Regulation (EEC) No 2930/86 of 22 September 1986 defining characteristics for fishing vessels (10), has implemented the permanent arrangements for fleet renewal and modernisation under Article 6 of Regulation (EC) No 2792/1999, and has complied with the overall MAGP-objectives.

(19)

In addition, the aid for the modernisation of fishing vessels can be granted only if the aid does not concern capacity in terms of tonnage or of power.

(20)

Finally, the vessels have to be registered in the fleet register and any changes in vessels characteristics must be communicated to this register. The replacement of fishing gear is not eligible.

(21)

As Shetland is an objective I region, aid may be granted up to 40 % of the total eligible costs.

(22)

On 1 January 2003, the relevant Articles and Annex of Regulation (EC) No 2792/1999 were amended by Regulation (EC) No 2369/2002 (11). In addition to the existing conditions of Regulation (EC) No 2792/1999, the aid for the modernisation of fishing vessels was further restricted in the sense that such aid may only be granted provided that the aid does not serve to increase the effectiveness of the fishing gear.

(23)

As regards the condition regarding the fact that the aid may not concern capacity in terms of tonnage or of power, the amendments made by Regulation (EC) No 2369/2002 introduced an exemption to that restriction, allowing such types of aids when they are in line with Article 11(5) of Regulation (EC) No 2371/2002 (12), which allows capacity increases in the case of modernisation works over the main deck to improve safety on board, working conditions, hygiene and product quality.

(24)

With regard to conditions concerning the replacement of fishing gear, Regulation (EC) No 2792/1999 was later amended by Regulation (EC) No 1421/2004 (13), which entered into force on 26 August 2004. Pursuant to Regulation (EC) No 2792/1999, as thus amended, replacement of fishing gear could be considered eligible if the vessel is subject to a recovery plan and is required to end its participation in the fishery concerned and fish for other species with different fishing gear. In such a case, the Commission may decide that the first replacement of fishing gear, where fishing possibilities are significantly reduced by a recovery plan, may be considered eligible.

(25)

The 2004 Guidelines should be applied to all existing schemes as from 1 January 2005. With regard to the aid for modernisation of fishing vessels, these guidelines refer to the Articles 9 and 10 of, and point 1.4 of Annex III to, Regulation (EC) No 2792/1999 and thus the same conditions continue to apply.

(26)

From the information provided by the United Kingdom, it can be deduced that, during the period from August 2002 until June 2005, 23 aids were granted for vessel modernisation, including five for replacements of engines and one for a project regarding the auxiliary engine, pump and clutch unit.

(27)

According to the United Kingdom, none of those improvements facilitated by the grants affected the gross tonnage or the power of any vessel and therefore the aids were compatible with the conditions of the respective guidelines.

(28)

As regards the 17 grants for vessel modernisations, other than the replacement of engines and the project concerning the auxiliary engine, pump and clutch unit, the United Kingdom has provided information showing that the aid complies with the conditions under the Guidelines applicable at the time the aid was granted.

(29)

However, as regards the remaining six grants, according to Article 9(1)(c)(i) of Regulation (EC) No 2792/1999, the aid may not ‘concern capacity in terms of tonnage or power’. The replacement of an engine of a fishing vessel concerns the capacity of the vessel in terms of power and thus no aid may be granted for such purpose. This was also been confirmed to all Member States by letter dated 5 May 2003 (Reference D(2003)37148) from Mr. Holmquist, Director-General for fisheries. In the same line, the aid for the project concerning the auxiliary engine, pump and clutch unit cannot be allowed.

(30)

As regards the amendments to Regulation (EC) No 2792/1999, referred to in Recital 23, those six modernisation projects have all taken place below deck and can therefore not be regarded as falling within the scope of Article 11(5) of Regulation (EC) No 2371/2002.

(31)

In view of the foregoing Recitals 26 to 30, the Commission considers that the aid granted under the scheme for the six modernisation projects concerning the capacity of the vessel in terms of tonnage or power is incompatible with Article 9(1)(c)(i) of Regulation (EC) No 2792/1999 and therefore incompatible the 2001 and 2004 Guidelines. The other aid granted under the scheme is, however, compatible with those conditions.

(32)

Under Article 14(1) of Regulation (EC) No 659/1999, where negative decisions are taken in case of unlawful aid, the Commission is to decide that the Member State concerned must take all necessary measures to recover the aid from the beneficiary.

(33)

The United Kingdom has raised the issue that the Commission is not to require recovery of the aid if that would be contrary to the principle of the protection of legitimate expectations and claims that this principle applies to this case.

(34)

The funds used for the financing of the scheme are the same funds used for the aids subject to the negative decisions taken by the Commission in Decisions 2003/612/EC and 2006/226/EC, as referred to in Recital 13 of the present Decision. In those cases, the Commission considered that these funds must be regarded as State resources for the purposes of Article 87 of the EC Treaty. At the same time, the Commission acknowledged that in the specific circumstances of the cases in question, legitimate expectations as to the private nature of the fund in question had been created on the part of the Shetland Islands Council and bodies involved through the combination of a number of elements taken together which precluded recovery of the incompatible State aid.

(35)

It is considered, however, that in this case the elements taken into account in those two Commission Decisions cannot be applied in the same way and the legitimate expectations have not been created. The Commission notes, in particular, the actions and statements from the United Kingdom, clearly showing that, at the respective times of granting of aid, the responsible authorities were convinced that the scheme was, in fact, a State aid scheme and that the rules on State aid were applicable.

(36)

To reach that conclusion, the Commission observes that, unlike the aids subject to Decisions 2003/612/EC and 2006/226/EC, the scheme in question has been set up as a normal aid scheme and concerns direct grants to fishermen, granted directly by the Shetland Islands Council. In addition, the specific circumstances of this case clearly show that the United Kingdom authorities themselves considered the State aid rules to be applicable, as they have continuously included the expenditure under the scheme in the annual UK State aid reports submitted to the Commission in accordance with Community obligations. In fact, in response to questions raised by the Commission, the United Kingdom stated in its letter dated 10 December 2004 that: ‘payments under the schemes have been included in the Annual State Aid Inventory and sent to the Commission annually, as required, for many years’ and in its letter dated 6 April 2005 that: ‘My authorities have, over many years, acted in good faith and in the belief that the Schemes were compliant with the State aid guidelines’.

(37)

Having regard to those statements, and the circumstances of the case, the Commission considers that requiring the recovery of the aid cannot be considered to be contradictory to the general principle of Community law. Thus, in accordance with Article 14(1) of Regulation (EC) No 659/1999, the Commission considers that the United Kingdom must take all necessary measures to recover the aid from the beneficiaries of the scheme, without prejudice to cases falling within the scope of Commission Regulation (EC) No 875/2007 of 24 July 2007 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the fisheries sector and amending Regulation (EC) No 1860/2004 (14).

(38)

In that respect, it should be pointed out that in accordance with Article 14(2) of Regulation (EC) No 659/1999, in order to ensure that effective competition be restored, the recovery should include interest. This interest should be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) No 794/2004 (15).

(39)

The Commission asks the United Kingdom to return to it the attached questionnaire concerning the current status of the recovery procedure and to draw up a list of beneficiaries to which the recovery of aid relates.

(40)

In the light of the assessment made in Section IV, the Commission finds that the United Kingdom has, in breach of Article 88(3) of the EC Treaty, unlawfully granted aid under the Fishing Vessel Modernisation Scheme.

(41)

The Commission considers that the aid granted under that scheme is compatible with the common market, with the exception of the aid granted for modernisation projects concerning capacity in terms of tonnage or power,

(a)

the list of beneficiaries that have received aid referred to Article 1(2) of this Decision that does not fulfil the conditions laid down by Regulation (EC) No 875/2007, and the total amount of aid received by each of them;

(b)

the total amount (principal and interest) to be recovered from each beneficiary;

(c)

a detailed description of the measures already taken and planned to comply with this Decision; and

(d)

documents demonstrating that the beneficiaries have been ordered to repay the aid.

22.2.2008   

EN

Official Journal of the European Union

L 48/71

(1)

By letter dated 15 June 2004, the Commission was informed by a citizen of the United Kingdom of unlawful aid granted by the Shetland Islands Council, the public authority in the Shetland Islands of the United Kingdom. By letters dated 24 August 2004, 4 February 2005, 11 May 2005 and 16 December 2005 the Commission requested the United Kingdom to provide information about such aid. The United Kingdom provided the Commission with further information by letters dated 10 December 2004, 6 April 2005, 8 September 2005 and 31 January 2006.

(2)

By letter dated 13 September 2006, the Commission informed the United Kingdom that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty. The United Kingdom provided its comments on the case by letters dated 16 October 2006 and 30 January 2007.

(3)

The Commission decision to initiate the procedure was published in the Official Journal of the European Union on 28 November 2006 (3). The Commission invited interested parties to submit their comments on the aid. No comments were received.

(4)

The Shetland Islands Council made payments to the fisheries sector under the scope of two general aid measures named ‘Aid to the Fish Catching and Processing Industry’ and ‘Aid to the Fish Farming Industry’, which actually consisted of several different types of aid schemes, one such scheme was the so-called ‘Fish Factory Improvement Scheme’.

(5)

Under the Fish factory improvement scheme (the ‘scheme’), aid could be granted for the purchase of new processing machinery and equipment and for the construction, improvement or extension of fish factories. Repairs to machinery or buildings were, however, not eligible. Aid for second-hand equipment was only considered for assistance in special circumstances and was to be inspected or certified as fully serviceable by an independent engineer.

(6)

Aid was granted up to a maximum of 20 % of the eligible costs, with a maximum amount of GBP 20 000 for factories with a turnover of less than GBP 1 000 000; GBP 25 000 for factories with a turnover of between GBP 1 000 000 and GBP 3 000 000; and GBP 30 000 for factories with a turnover of more than GBP 3 000 000.

(7)

From 13 August 1993 until 15 December 2004, payments were made under the scheme in favour of Shetland Fish Products Limited, a company involved in the production of fish meal and fish oil, not intended for human consumption. The following grants were paid to that company:

(8)

In its decision to initiate the procedure the Commission considered that the conditions of the scheme and the majority of the aid granted was compatible with the common market, as it complied with the provisions of Council Regulation (EC) No 3699/93 of 21 December 1993 laying down the criteria and arrangements regarding Community structural assistance in the fisheries and aquaculture sector and the processing and the marketing of its products (4) and Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector (5), applicable at the respective times of granting of aid.

(9)

However, the Commission has serious doubts on the compatibility with the common market of the aid granted to Shetland Fish Products Limited, as that aid was granted for investments for processing and marketing of fishery and aquaculture products intended to be used and processed for purposes, other than for human consumption, which was not allowed under Regulation (EC) No 3699/93 and Regulation (EC) No 2792/1999.

(10)

In its reply dated 16 October 2006, the United Kingdom provided further information on the aids granted to Shetland Fish Products Limited.

(11)

It confirmed that the aid granted to that company cannot be regarded as complying with the conditions of Regulation (EC) No 3699/93 and Regulation (EC) No 2792/1999. The United Kingdom stated that those administering the scheme were not aware, at the time that the grants were authorised, that aid for the processing and marketing for fishery and aquaculture products intended to be used and processed for purposes other than for human consumption was precluded by those Regulations.

(12)

However, the United Kingdom pointed out that at least one of the investments which had been made, namely the grant of GBP 1 592 of 3 September 1998, related to environmental improvements, being the re-cladding of one of the company's buildings, the purpose of which was to ‘seal’ the building and thereby reduce foul air emissions. According to the United Kingdom this aid could be regarded as compatible with paragraph 2.0(b) of Annex III to Regulation (EC) No 3699/93.

(13)

Finally, the United Kingdom maintained that, should the Commission adopt a negative decision, recovery of aid granted prior to 3 June 2003 should not be required as that would be contrary to the principle of the protection of legitimate expectations. In that respect, the United Kingdom made reference to Commission Decision 2003/612/EC of 3 June 2003 on loans for the purchase of fishing quotas in the Shetland Islands (United Kingdom) (6) and Commission Decision 2006/226/EC of 7 December 2005 on Investments of Shetland Leasing and Property Developments in the Shetland Islands (United Kingdom) (7), stating that until 3 June 2003, the Shetland Islands Council legitimately considered the funds used for such aid to be private rather than public.

(14)

It must be determined firstly if the measure can be regarded as State aid and if so, if it is compatible with the common market.

(15)

Aid has been granted to a company in the fisheries sector, and is thus of a selective nature. The aid has been granted by the Shetland Islands Council from state resources and benefited Shetland Fish Products Limited, which operates in direct competition with other companies in the fisheries sector, both within the United Kingdom and in other Member States. Therefore, the aid distorts or threatens to distort competition and appears to be State aid within the meaning of Article 87 of the EC Treaty.

(16)

According to the United Kingdom, the two general schemes have been applied before the accession of the United Kingdom to the European Economic Community. In any event, due to the absence of past records, the United Kingdom has been unable to provide evidence that the aid measures already existed before the United Kingdom joined the Community. In addition, the United Kingdom confirmed that the aid schemes have been changed over the years and that these changes were never notified to the Commission in accordance with Article 88(3) of the EC Treaty (former Article 93(3)). As a result, the aid measures have to be considered as new aid.

(17)

Council Regulation (EC) No 659/1999 does not lay down any limitation period for the examination of ‘unlawful aid’, as defined in Article 1(f) thereof, namely aid implemented before the Commission is able to reach a conclusion as to its compatibility with the common market. However, Article 15 of that Regulation stipulates that the power of the Commission to require the recovery of aid is subject to a limitation period of ten years and that the limitation period begins on the day on which the unlawful aid is awarded to the beneficiary and that that limitation period is interrupted by any action taken by the Commission. Consequently, the Commission considers that it is not necessary in this case to examine the aid covered by the limitation period, namely aid granted more than ten years before any measure taken by the Commission concerning it.

(18)

The Commission considers that in this case the limitation period was interrupted by its request for information sent to the United Kingdom on 24 August 2004. Accordingly, the limitation period applies to aid granted to beneficiaries before 24 August 1994. Consequently, the Commission has limited its assessment to the aid granted by decisions taken after 24 August 1994.

(19)

State aid can be declared compatible with the common market if it complies with one of the exceptions provided for in the EC Treaty. As regards State aid to the fisheries sector, State aid is deemed to be compatible with the common market if it complies with the conditions of the Guidelines for the examination of State aid to fisheries and aquaculture (8) of 2004 (‘2004 Guidelines’). According to the second paragraph of point 5.3 of those Guidelines: ‘An “unlawful aid” within the meaning of Article 1(f) of Regulation (EC) No 659/1999 will be appraised in accordance with the guidelines applicable at the time when the administrative act setting up the aid has entered into force.’ The aid thus needs to be assessed on the basis of its compatibility with the Guidelines for the examination of State aid to fisheries and aquaculture (9) of 1997 (‘1997 Guidelines’) and the Guidelines for the examination of State aid to fisheries and aquaculture (10) of 2001 (‘2001 Guidelines’).

(20)

According to point 2.3 of the 1997 and 2001 Guidelines, aid to investments in the processing and marketing of fishery products may be deemed to be compatible with the common market provided that the conditions for granting it are comparable with those laid down in Regulation (EC) No 3699/93 and Regulation (EC) No 2792/1999 respectively and are at least as stringent and the level of the State aid does not exceed, in subsidy equivalent, the total rate of national and Community subsidies fixed in Annex IV to those Regulations.

(21)

According to both Article 11 of Regulation (EC) No 3699/93 and point 2.4 of Annex III thereto, and Article 13 of Regulation (EC) No 2792/1999 and point 2.4 of Annex III thereto, eligible investments are to relate in particular to the construction and acquisition of buildings and installation, the acquisition of new equipment and installations needed for the time of landing and the marketing of fishery and aquaculture products between the time of landing and the end-product stage and the application of new technologies intended in particular to improve competitiveness.

(22)

According to those provisions, investments are not be eligible for assistance when they concern fishery and aquaculture products intended to be used and processed for purposes other than for human consumption, with the exemption of investments exclusively for the handling, processing and marketing of fishery and aquaculture wastes.

(23)

The United Kingdom has confirmed that all aid granted to Shetland Fish Products Limited concerned aid for the processing and marketing of fishery and aquaculture products intended to be used and processed for purposes other than for human consumption. The aid, therefore, does not comply with the provisions mentioned under Recital 22 and consequently with the conditions of the 1997 Guidelines and 2001 Guidelines and is therefore incompatible with the common market.

(24)

However, the United Kingdom has stated that the grant of GBP 1 592, of 3 September 1998, concerned aid for investments related to environmental improvements, which would be compatible with paragraph 2.0(b) of Annex III to Regulation (EC) No 3699/93.

(25)

According to paragraph 2.0(b) of Annex III to Regulation (EC) No 3699/93, aid in the spheres referred to in Title III for physical investment intended to improve conditions of hygiene or human or animal health, to improve product quality or reduce pollution of the environments is to be eligible. One of the spheres of Title III is ‘processing and marketing of fishery and aquaculture products’ (point 2.4 of that Title). Investment aid for processing and marketing, even though it concerned a company active in the processing and marketing of products not intended for human consumption, could thus indeed be regarded compatible if the investment is intended to reduce pollution of the environment.

(26)

Aid was granted to assist the re-cladding of one of the company's buildings, the purpose of which was to ‘seal’ the building and thereby reduce foul air emissions. The Commission considers that this type of aid may be deemed compatible with paragraph 2.0(b) of Annex III to Regulation (EC) No 3699/93 and that this particular grant of GBP 1 592 is thus compatible with the common market.

(27)

Under Article 14(1) of Regulation (EC) No 659/1999, where negative decisions are taken in the case of unlawful aid, the Commission is to decide that the Member State concerned must take all necessary measures to recover the aid from the beneficiary.

(28)

The United Kingdom has raised the issue that the Commission is not to require recovery of the aid if that would be contrary to the principle of the protection of legitimate expectations and claims that this principle applies to this case.

(29)

The funds used for the financing of the scheme are the same funds used for the aids subject to the negative decisions taken by the Commission in Decisions 2003/612/EC and 2006/226/EC, as referred to in Recital 13. In those cases, the Commission considered that those funds had to be regarded as State resources for the purposes of Article 87(1) of the EC Treaty. At the same time, the Commission acknowledged that in the specific circumstances of the cases in question, legitimate expectations as to the private nature of the fund in question had been created on the part of the Shetland authorities and bodies involved through the combination of a number of elements taken together which precluded recovery of the incompatible State aid.

(30)

The Commission considers, however, that in this case the elements taken into account in Decisions 2003/612/EC and 2006/226/EC cannot be applied in the same way and the legitimate expectations have not been created. The Commission notes, in particular, the actions and statements from the United Kingdom, clearly showing that, at the respective times of granting of aid, the responsible authorities were convinced that the scheme was in fact a State aid scheme and that the rules on State aid were applicable.

(31)

To reach that conclusion, the Commission observes that, unlike the aids subject to Decisions 2003/612/EC and 2006/226/EC, the scheme in question has been set up as a normal aid scheme and concerns direct grants to fishermen, granted directly by the Shetland Islands Council. In addition, the specific circumstances of this case clearly show that the United Kingdom considered the State aid rules to be applicable, as they have continuously included the expenditure under the scheme in the annual UK State aid reports submitted to the Commission in accordance with Community obligations. In fact, in response to questions posed by the Commission, the United Kingdom stated in its letter dated 10 December 2004 that: ‘payments under the schemes have been included in the Annual State Aid Inventory and sent to the Commission annually, as required, for many years’ and in its letter dated 6 April 2005 that: ‘My authorities have, over many years, acted in good faith and in the belief that the Schemes were compliant with the State aid guidelines’.

(32)

With regard to those statements and the circumstances of the case, the Commission considers that requiring the recovery of the aid cannot be considered to be contradictory to a general principle of Community law. Thus, in accordance with Article 14(1) of Regulation (EC) No 659/1999 the Commission considers that United Kingdom must take all necessary measures to recover the aid from the beneficiary of the scheme, without prejudice to cases falling within the scope of Regulation (EC) No 875/2007 of 24 July 2007 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the fisheries sector and amending Regulation (EC) No 1860/2004 (11).

(33)

In that respect, it should be pointed out that in accordance with Article 14(2) of Regulation (EC) No 659/1999, in order to ensure that effective competition be restored, the recovery should include interest. This interest should be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) No 794/2004 (12).

(34)

The Commission would ask United Kingdom to return to it the attached questionnaire concerning the current status of the recovery procedure.

(35)

In the light of the assessment made in Section IV, the Commission finds that the United Kingdom has, in breach of Article 88(3) of the EC Treaty, unlawfully granted aid to Shetland Fish Products Limited under the Fish factory improvement scheme.

(36)

The Commission considers that this aid is not compatible with the common market, as far as it concerns the aid granted on 13 August 1997, 7 January 1999, 25 February 1999, 10 December 1999, 19 January 2001 and 15 December 2004, amounting to a total amount of GBP 92 009.

(37)

The aid granted on 3 September 1998 amounting to a total of GBP 1 592 is considered compatible with the common market,

(a)

total amount (principal and interests) to be recovered from the beneficiary that does not fulfil the conditions laid down by Regulation (EC) No 875/2007;

(b)

a detailed description of the measures already taken and planned to comply with this Decision; and

(c)

documents demonstrating that the beneficiary has been ordered to repay the aid.

22.2.2008   

EN

Official Journal of the European Union

L 48/77

I.

The approval of compression ignition (C.I.) engines with regard to the emission of visible pollutants

II.

The approval of motor vehicles with regard to the installation of C.I. engines of an approved type

III.

The approval of motor vehicles equipped with C.I. engines with regard to the emission of visible pollutants by the engine

IV.

The measurement of power of C.I. engines

22.2.2008   

EN

Official Journal of the European Union

L 48/78

‘2.7.

“Lorry” means a motor vehicle of category N1 which is designed and constructed exclusively or principally for conveying goods.

2.8.

“Van” means a lorry with the cab integrated into the body.’