9.3.2018   

EN

Official Journal of the European Union

L 67/1

(1)

By Decision 2005/781/EC (1), the Council approved the conclusion of the Agreement for scientific and technological cooperation between the European Community and the Federative Republic of Brazil (2) (the ‘Agreement’).

(2)

In accordance with Article XII of the Agreement, the Agreement enters into force on the date on which both Parties have notified each other in writing that their respective internal procedures necessary for the Agreement to enter into force have been completed. The Agreement is initially valid for a period of five years and may be renewed by agreement between the Parties after evaluation during the penultimate year of each subsequent renewal period.

(3)

By Decision 2012/646/EU (3), the Council approved the renewal of the Agreement for an additional period of five years.

(4)

The exchange of letters between the Parties, dated 14 November 2016 and 5 January 2017, confirmed their interest in renewing the Agreement for another five years.

(5)

The renewal of the Agreement should be approved on behalf of the Union,

9.3.2018   

EN

Official Journal of the European Union

L 67/3

(1)

It is appropriate to have rules establishing a methodology for carrying out valuations aimed at determining whether there is any difference between the actual treatment of shareholders and creditors in respect of which resolution action or actions have been effected, and the amount that those shareholders and creditors would have received had the institution or entity as referred to in points (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU (‘entity’) been subject to normal insolvency proceedings at the date on which the decision to resolve that entity was adopted according to Article 82 of Directive 2014/59/EU.

(2)

Any difference in treatment resulting in greater losses in resolution for particular shareholders and creditors should entitle those shareholders and creditors to compensation from the resolution financing arrangements, pursuant to point (e) of Article 101(1) of Directive 2014/59/EU.

(3)

The ex post valuation is to be carried out by the required independent person meeting the conditions set out in Article 38 of Commission Delegated Regulation (EU) 2016/1075 (2) (‘valuer’), as soon as possible after the resolution action or actions have been effected, even though its completion could take some time. That valuation should be based on available information relevant to the date when the decision to resolve an entity is adopted, in order to adequately reflect specific circumstances, such as distressed market conditions, existing at that resolution decision date. Information obtained after the resolution decision date should only be used where it could reasonably have been known at that date.

(4)

In order to ensure that a comprehensive and credible valuation is carried out, the valuer should have access to any appropriate legal documentation, including to a list of all claims and contingent claims against the entity, classified according to their priority under normal insolvency proceedings. The valuer should be allowed to enter into arrangements to obtain specialist advice or expertise as required by the circumstances.

(5)

For purposes of determining the treatment that shareholders and creditors would have received had the entity been put under normal insolvency proceedings, the valuer should determine the expected timing and amount of net cash flows that each shareholder and creditor would have received from the insolvency proceedings without assuming any State aid, discounted at the relevant discount rate or rates. In determining such estimate, and where available and relevant, the valuer could also refer to information on recent past experiences of insolvency of similar credit institutions.

(6)

The actual treatment received by shareholders and creditors in resolution should be determined having regard to whether such shareholders and creditors have respectively received compensation in the form of equity, debt or cash as a result of the adoption of the resolution action.

(7)

This Regulation is based on the draft regulatory technical standards submitted by the European Banking Authority (EBA) to the Commission.

(8)

EBA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the opinion of the Banking Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council (3),

(a)

the treatment that shareholders and creditors in respect of which resolution actions have been effected, or the relevant deposit guarantee scheme, would have received had the entity, entered normal insolvency proceedings at the resolution decision date, disregarding any provision of extraordinary public financial support;

(b)

the value of the restructured claims following the application of the bail-in tool or other resolution powers and tools, or of other proceeds received by shareholders and creditors as at the actual treatment date or dates, discounted back to the resolution decision date if deemed necessary to enable a fair comparison with the treatment referred to in point (a);

(c)

whether the outcome of the treatment in point (a) exceeds the outcome of the value referred to in point (b) for each creditor in accordance with the priority levels in normal insolvency proceedings as identified according to Article 2.

(a)

applicable insolvency law and practice in the relevant jurisdiction, which may influence factors such as the expected disposal period or recovery rates;

(b)

reasonably foreseeable administration, transaction, maintenance, disposal and other costs which would have been incurred by an administrator or insolvency practitioner, as well as financing costs;

(c)

the information on recent past insolvency cases of similar entities, where available and relevant.

(a)

prices observed in active markets where similar assets are traded;

(b)

prices observed in normal insolvency proceedings or otherwise distressed transactions involving assets of a similar nature and condition;

(c)

prices observed in transactions involving the sale of business or the transfer to a bridge institution or an asset management vehicle in a resolution context relating to similar entities;

(d)

the likelihood of an asset generating net cash inflows under normal insolvency proceedings;

(e)

expected market conditions within a given disposal period, including market depth and the ability of the market to exchange the relevant volume of assets within that period; and

(f)

the length of a given disposal period shall reflect the implications of the applicable insolvency law, including the expected length of the liquidation process, or the characteristics of the relevant assets.

(a)

a summary of the valuation including a presentation of valuation ranges and sources of valuation uncertainty;

(b)

an explanation of the key methodologies and assumptions adopted, and how sensitive the valuation is to these choices;

(c)

an explanation, where feasible, why the valuation differs from other relevant valuations, including the resolution valuations conducted in accordance with Commission Delegated Regulation (EU) 2018/345 or other regulatory or accounting valuations.

9.3.2018   

EN

Official Journal of the European Union

L 67/8

(1)

In a resolution scenario it is important to distinguish between, on the one hand, an initial valuation assessing whether the conditions for the write-down and conversion of capital instruments or the condition for resolution have been met, and, on the other hand, a subsequent valuation forming the basis for the decision to apply one or more resolution tools. In relation to the initial valuation, it is appropriate to ensure that when determining whether the conditions for resolution or for the write-down or conversion of capital instruments are met, a fair and realistic valuation of the entity's assets and liabilities is conducted. For purposes of the subsequent valuation informing the decision on the resolution actions, it is important to ensure that the valuation of the assets and liabilities of the entity, which determines the choice of the resolution action and the extent of any potential write-down or conversion of capital instruments at the point of non-viability, is based on fair, prudent and realistic assumptions.

(2)

To ensure that that valuation is fair, prudent and realistic, it is important that it estimates the impact of events prior to any resolution action or prior to the exercise of the power to write-down or convert capital instruments at the point of non-viability, as well as of different actions that might be taken by the resolution authority.

(3)

The valuer should have access to any sources of relevant information and expertise, such as the internal records, systems, and models of the institution. The ability of internal capabilities and systems to support resolution valuations should be assessed by the resolution authority as part of the resolvability assessment pursuant to Article 15 of Directive 2014/59/EU. The valuer should as well be allowed to enter into arrangements for specialist advice or expertise. Availability of specialist advice or expertise might be relevant, for instance, for preparing an estimate of the difference in treatment pursuant to Article 36(8) of Directive 2014/59/EU. The resolution authority should therefore be satisfied that the valuer has access to either a list of all claims including contingent claims held against the entity and classified according to their rights and priority under normal insolvency proceedings, or to adequate legal expertise for the preparation of such list.

(4)

The determination of whether an entity is failing or likely to fail may be carried out either by the competent authority or by the resolution authority in accordance with the conditions set out in Article 32(1)(a) of Directive 2014/59/EU. For purposes of determining whether an institution is failing or likely to fail, the competent authority should consider the valuation provided for in Chapter II of this Regulation, where already available and should take into account the guidelines issued by the European Banking Authority (EBA) pursuant to Article 32(6) of Directive 2014/59/EU which aim at promoting convergence of practices in relation to the determination of such resolution condition.

(5)

Valuations for the purposes of informing the determination by the competent or the resolution authority whether the conditions for resolution or for write-down or conversion of capital instruments are met should be consistent with the applicable accounting and prudential regulatory framework. The valuer, however, should be able to depart from assumptions made by the entity's management under which the financial statements are prepared to the extent such departure is consistent with the applicable accounting and prudential regulatory framework. When departing from those assumptions, the valuation should be supported by the best available information and be consistent with existing supervisory guidance or other generally recognised sources of interpretation of accounting standards, so as to provide a fair and realistic representation of the entity's financial position.

(6)

It is appropriate to have rules that ensure that valuations for the purposes of informing the choice and design of resolution actions or the extent of write-down and conversion of capital instruments at point of non-viability are fair, prudent and realistic, to ensure that all losses are fully recognised at the moment the resolution tools are applied or the power to write-down or convert relevant capital instruments is exercised. The choice of the most appropriate measurement basis (the hold value or the disposal value) should be made for the particular resolution actions being considered by the resolution authority.

(7)

It is appropriate that valuations for the purposes of informing the choice and design of resolution actions or the extent of the write-down and conversion of capital instruments at the point of non-viability assess the economic value and not the accounting value. Those valuations should consider the present value of cash flows that the entity can reasonably expect, even where this requires departing from accounting or prudential valuation frameworks.

(8)

Valuations for the purposes of informing the choice and the design of resolution actions should reflect that cash flows may arise from continuing to hold the assets, yet should take into account the potential effects of the resolution on future cash flows and fair, prudent and realistic assumptions as to rates of default and severity of losses. Furthermore, to determine the post-conversion equity value of shares, the valuer should be able to take into account reasonable expectations for franchise value.

(9)

Alternatively, where the entity lacks the ability to hold the assets or their disposal is considered necessary or appropriate to achieve the resolution objectives, the valuation should reflect that those cash flows may arise from the disposal of assets, liabilities or business lines, assessed over a defined disposal period.

(10)

The disposal value should generally be understood as equivalent to the observable market price that could be obtained on the market for a particular asset or group of assets and may reflect a discount that is appropriate in view of the amount of assets being transferred. However, the valuer should be able where appropriate having regard to the actions to be taken under the resolution scheme, to determine the disposal value by applying a reduction to such observable market price for a potential accelerated sale discount. Where the assets do not have a liquid market, the disposal value should be determined by reference to the observable prices on markets where similar assets are traded or to model calculations using observable market parameters with discounts for illiquidity reflected as appropriate. Where the sale of business or the use of the bridge institution tool are contemplated, reasonable expectations for franchise value may be taken into account when determining the disposal value.

(11)

For purposes of ensuring consistency between the calculation, required by Article 36(8) of Directive 2014/59/EU, of the estimate of the treatment that shareholders and each class of creditors would have been expected to receive had the institution or entity been wound-up under normal insolvency proceedings, and the valuation following resolution pursuant to Article 74 of that Directive, it is important that the valuer use the criteria set out for that valuation when appropriate.

(12)

A provisional valuation pursuant to Article 36(9) of Directive 2014/59/EU forming the basis of the decision on the taking of the appropriate resolution action should include a buffer aimed at approximating the amount of additional losses. That buffer should be based on a fair, prudent, and realistic assessment of those additional losses. The decisions and assumptions supporting the calculation of the buffer should be adequately explained and justified in the valuation report.

(13)

For the valuation referred to in points (a) and (c) of Article 36(15) of Directive 2014/59/EU, the valuer should explain and justify key assumptions, uncertainties, and the sensitivity of the valuation to such key assumptions and uncertainties. Significant differences between assumptions used in the valuation and those underlying accounting or regulatory information, where known to the valuer, should be included in the valuation report. In that report the valuer should also record any additional related information which in the valuer's opinion would assist the resolution authority.

(14)

The criteria laid down in this Regulation should be exclusively set out for conducting the valuations under Article 36 of Directive 2014/59/EU. They should not replace or amend accounting principles and standards or the prudential regulatory framework that apply to entities in contexts other than resolution. It should however be possible to use the information resulting from the valuation to identify potential misapplications by the entity of accounting standards or of the prudential regulatory framework, or to determine changes in the entity's accounting policies or in the assumptions or judgements driving the measurement of assets and liabilities. Those circumstances, for instance, should be taken into account for the preparation of the updated balance sheet pursuant to Article 36(6) of Directive 2014/59/EU. For that purpose the valuer should provide an adequate explanation of the differences between the existing and the updated balance sheets.

(15)

This Regulation is based on the draft regulatory technical standards submitted by the EBA to the Commission.

(16)

EBA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the opinion of the Banking Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council (2),

(a)

‘valuation’ means either the assessment of an entity's assets and liabilities conducted by a valuer pursuant to Article 36(1) of Directive 2014/59/EU, or the provisional valuation conducted by the resolution authority or the valuer, as the case may be, pursuant respectively to paragraphs (2) and (9) of Article 36 of that Directive.

(b)

‘valuer’ means either the independent valuer within the meaning of Article 38 of Commission Delegated Regulation (EU) 2016/1075 (3) or the resolution authority when conducting a provisional valuation pursuant to paragraphs (2) and (9) of Article 36 of Directive 2014/59/EU.

(c)

‘entity’ means an institution or an entity as referred to in points (b), (c) or (d) of Article 1(1) of Directive 2014/59/EU.

(d)

‘fair value’ means the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the valuation date, as defined in the relevant accounting framework.

(e)

‘hold value’ means the present value, discounted at an appropriate rate, of cash flows that the entity can reasonably expect under fair, prudent and realistic assumptions from retaining particular assets and liabilities, considering factors affecting customer or counterparty behaviour or other valuation parameters in the context of resolution.

(f)

‘disposal value’ means the measurement basis refered to in Article 12(5).

(g)

‘franchise value’ means the net present value of cash flows that can reasonably be expected to result from the maintenance and renewal of assets and liabilities or businesses and includes the impact of any business opportunities, as relevant, including those stemming from the different resolution actions that are assessed by the valuer. Franchise value may be higher or lower than the value arising from the contractual terms and conditions of assets and liabilities existing at the valuation date.

(h)

‘equity value’ means an estimated market price, for transferred or issued shares, that results from the application of generally accepted valuation methodologies. Depending on the nature of the assets or business, equity value may comprise franchise value.

(i)

‘measurement basis’ means the approach for determining the monetary amounts at which assets or liabilities are presented by the valuer.

(j)

‘resolution date’ means the date on which the decision to resolve an entity is adopted, pursuant to Article 82 of Directive 2014/59/EU.

(a)

the value of claims of each class according to the applicable insolvency law and, where relevant and feasible, according to the contractual rights conferred on claimants;

(b)

the proceeds each class would receive if the entity were wound-up under normal insolvency proceedings;

When calculating the estimates pursuant to points (a) and (b) of the first subparagraph, the valuer may apply the criteria set out in Article 4 of Commission Delegated Regulation (EU) 2018/344 of 14 November 2017 supplementing Directive 2014/59/EU of the European Parliament and of the Council with regard to regulatory technical standards specifying the criteria relating to the methodologies for valuation of difference in treatment in resolution as appropriate.

(a)

the reference date as determined by the valuer on the basis of the date as close as possible before the expected date of a decision by the resolution authority to put the entity in resolution or to exercise the power to write-down or to convert capital instruments;

(b)

where an ex post definitive valuation required by Article 36(10) of Directive 2014/59/EU is conducted, the resolution date;

(c)

in relation to liabilities arising from derivative contracts, the point in time determined pursuant to Article 8 of Commission Delegated Regulation (EU) 2016/1401 (4).

(a)

the updated financial statements and regulatory reporting prepared by the entity as close as possible to the valuation date;

(b)

an explanation of the key methodologies, assumptions and judgements used by the entity in order to prepare the financial statements and regulatory reporting;

(c)

data contained in the records of the entity;

(d)

relevant market data;

(e)

conclusions drawn by the valuer from discussion with management and auditors;

(f)

where available, supervisory assessments of the entity's financial condition, including information acquired pursuant to point (h) of Article 27(1) of Directive 2014/59/EU;

(g)

industry-wide assessments of asset quality, where relevant to the entity's assets, as well as stress test results;

(h)

valuations of peers, adequately adjusted to capture the entity's specific circumstances;

(i)

historical information, adequately adjusted to eliminate factors that are no longer relevant, and to incorporate other factors that did not affect the historical information; or

(j)

trend analyses, adequately adjusted to reflect the entity's specific circumstances.

(a)

except as provided in Article 36(9) of Directive 2014/59/EU, the information referred to in points (a) to (c) of Article 36(6) of that Directive;

(b)

except as provided in Article 36(9) of Directive 2014/59/EU, the information referred to in Article 36(8) of Directive 2014/59/EU;

(c)

the valuation of the liabilities arising from derivatives carried out in accordance with Commission Delegated Regulation (EU) 2016/1401;

(d)

a summary of the valuation including an explanation of best point estimate, value ranges and sources of valuation uncertainty;

(e)

an explanation of the key methodologies and assumptions used by the valuer when performing the valuation, how sensitive the valuation is to the choices of methodologies and assumptions and, where feasible, an explanation of how those methodologies and assumptions differ from those used for other relevant valuations including any preliminary resolution valuations;

(f)

any additional information which in the valuer's opinion would assist the resolution authority or competent authority for purposes of Article 36(1) to (11) of Directive 2014/59/EU.

(a)

loans or loan portfolios, the expected cash flows of which depend on a counterparty's ability, willingness or incentive to perform on its obligation, where those expectations are driven by assumptions relating to delinquency rates, probabilities of default, loss given default, or instrument characteristics, especially where evidenced by loss patterns for a portfolio of loans;

(b)

repossessed assets, the cash flows of which are affected by both the asset's fair value at the time the entity forecloses on the related security or lien, and the expected evolution of such value after foreclosure;

(c)

instruments measured at fair value where the determination of that fair value in accordance with accounting or prudential requirements on their marking to market or marking to model is no longer applicable or valid taking into account the circumstances;

(d)

goodwill and intangibles, where the impairment test may depend on subjective judgement, including as regards the reasonably attainable cash flow stream, discount rates, and the perimeter of cash generating units;

(e)

legal disputes and regulatory actions, the expected cash flows of which may be subject to varying degrees of uncertainty relating to their amount and/or timing;

(f)

items including pension assets and liabilities and deferred tax items.

(a)

the economic and industry circumstances affecting the entity, including relevant market developments;

(b)

the entity's business model and changes in its strategy;

(c)

the entity's asset selection criteria, including loan underwriting policies;

(d)

circumstances and practices that are likely to lead to payment shocks;

(e)

circumstances affecting the parameters used to determine risk weighted assets for the calculation of minimum capital requirements;

(f)

the impact of the entity's financial structure on the capacity of the entity to retain assets for the expected holding period and the entity's ability to generate predictable cash flows;

(g)

general or entity-specific liquidity or funding concerns.

(a)

changes in assumptions or expectations, as compared to those prevailing as of the valuation date, consistent with long-term historical trends and a reasonable horizon consistent with the contemplated holding period of assets or for the recovery of the entity; or

(b)

additional or alternative valuation bases or methodologies that are considered appropriate by the valuer and consistent with this Regulation, including in the context of assessing the post-conversion equity value of shares.

(a)

the disposal values and disposal periods observed in similar transactions, adequately adjusted to take into account differences in the business model and in the financial structure of the parties to those transactions;

(b)

advantages or disadvantages of a particular transaction that are specific to the parties involved or to a subset of market participants;

(c)

particular attributes of an asset or business that may only be relevant to a potential purchaser, or to a subset of market participants;

(d)

the likely impact of expected sales on the entity's franchise value.

9.3.2018   

EN

Official Journal of the European Union

L 67/18

(1)

Regulation (EC) No 1831/2003 provides for the authorisation of additives for use in animal nutrition and for the grounds and procedures for granting such authorisation.

(2)

In accordance with Article 7 of Regulation (EC) No 1831/2003 an application was submitted for the authorisation of a preparation of Lactobacillus buchneri NRRL B-50733. That application was accompanied by the particulars and documents required under Article 7(3) of Regulation (EC) No 1831/2003.

(3)

That application concerns the authorisation of a preparation of Lactobacillus buchneri NRRL B-50733 as a feed additive for all animal species, to be classified in the additive category ‘technological additives’.

(4)

The European Food Safety Authority (‘the Authority’) concluded in its opinion of 4 July 2017 (2) that, under the proposed conditions of use, the preparation of Lactobacillus buchneri NRRL B-50733 does not have an adverse effect on animal health, human health or the environment. The Authority also concluded that the preparation concerned has the potential to improve the production of silage from easy, moderately difficult and difficult to ensile forage materials. The Authority does not consider that there is a need for specific requirements of post-market monitoring. It also verified the report on the method of analysis of the feed additive in feed submitted by the Reference Laboratory set up by Regulation (EC) No 1831/2003.

(5)

The assessment of the preparation of Lactobacillus buchneri NRRL B-50733 shows that the conditions for authorisation, as provided for in Article 5 of Regulation (EC) No 1831/2003, are satisfied. Accordingly, the use of that preparation should be authorised as specified in the Annex to this Regulation.

(6)

The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

9.3.2018   

EN

Official Journal of the European Union

L 67/21

(1)

Regulation (EC) No 1831/2003 provides for the authorisation of additives for use in animal nutrition and for the grounds and procedures for granting such authorisation. Article 10 of that Regulation provides for the re-evaluation of additives authorised pursuant to Council Directive 70/524/EEC (2).

(2)

The preparation of Saccharomyces cerevisiae CNCM I-1079 was authorised without a time limit as feed additive for piglets by Commission Regulation (EC) No 1847/2003 (3) and for sows by Commission Regulation (EC) No 2036/2005 (4). That additive was subsequently entered in the Register of feed additives as an existing product, in accordance with Article 10(1) of Regulation (EC) No 1831/2003.

(3)

In accordance with Article 10(2) of Regulation (EC) No 1831/2003 in conjunction with Article 7 of that Regulation, an application was submitted for the re-evaluation of the preparation of Saccharomyces cerevisiae CNCM I-1079 as feed additive for sows and piglets. The applicant requested that additive to be classified in the additive category ‘zootechnical additives’. That application was accompanied by the particulars and documents required under Article 7(3) of Regulation (EC) No 1831/2003.

(4)

The European Food Safety Authority (‘the Authority’) concluded in its opinions of 20 April 2016 and 4 July 2017 (5) that, under the proposed conditions of use, the preparation of Saccharomyces cerevisiae CNCM I-1079 does not have an adverse effect on animal health, human health or the environment. It also concluded that the additive is efficacious in sows in order to have a benefit in suckling piglets and in weaned piglets in order to have a significant improvement of feed to gain ratio. The Authority does not consider that there is a need for specific requirements of post-market monitoring. It also verified the report on the method of analysis of the feed additive in feed submitted by the Reference Laboratory set up by Regulation (EC) No 1831/2003.

(5)

The assessment of the preparation of Saccharomyces cerevisiae CNCM I-1079 shows that the conditions for authorisation, as provided for in Article 5 of Regulation (EC) No 1831/2003, are satisfied. Accordingly, the use of that preparation should be authorised as specified in the Annex to this Regulation.

(6)

Regulations (EC) No 1847/2003 and (EC) No 2036/2005 should be amended accordingly.

(7)

Since safety reasons do not require the immediate application of the modifications to the conditions of authorisation, it is appropriate to allow a transitional period for interested parties to prepare themselves to meet the new requirements resulting from the authorisation.

(8)

The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

(1)

Article 2 is deleted;

(2)

Annex II is deleted.

9.3.2018   

EN

Official Journal of the European Union

L 67/24

(1)

By Regulation (EU) No 978/2012 of the European Parliament and of the Council (2) the Union granted generalised tariff preferences (‘GSP’) to Cambodia. The GSP scheme became applicable on 1 January 2014.

(2)

Regulation (EU) No 952/2013 provides for the possibility to grant, in certain precisely defined circumstances and for certain goods, derogations from the rules on preferential origin in favour of GSP beneficiary countries. According to Commission Delegated Regulation (EU) 2015/2446 (3), regional cumulation can only apply in the same regional group to countries which, at the time of exportation to the Union, are beneficiaries of the GSP.

(3)

On 13 October 2016, Cambodia submitted a request for a 3-year extension of a derogation granted by Commission Implementing Regulation (EU) No 822/2014 (4). Under that derogation, Cambodia was entitled, for the purpose of determining the origin of bicycles of HS heading 8712 imported to the Union from Cambodia, to consider parts originating in Malaysia to be materials originating in Cambodia by virtue of regional cumulation under the GSP scheme, even though Malaysia was not a GSP beneficiary country.

(4)

In its request, Cambodia considered that considerable efforts had been made by its bicycle industry to gradually comply with the Union rules of origin for the least developed countries (as provided for in Annex 22-03 of Delegated Regulation (EU) 2015/2446), under which in order for a product to be considered originating in the least developed country, the materials used for its production and imported from other countries should not exceed 70 %. However, Cambodia concluded that more time is needed for that industry to reach full compliance with the Union rules of origin for the least developed countries.

(5)

By letter of 17 February 2017, the Commission requested Cambodia to submit further information. On 15 June 2017, Cambodia transmitted its answer to that request, as a result of which its application was considered complete.

(6)

In its reply, Cambodia demonstrated that efforts had been made to render the bicycle industry more autonomous thanks to investments aiming to set up further part manufacturing lines (such as frames, painting, wielding or rims). Cambodia also explained that manufacturers had been incented to purchase bike accessories as well as packaging material from local suppliers in order to increase the added value created in Cambodia. Consequently, Cambodia has now its own policy to attract investors to set up industrial clusters in special economic zones to support the bicycle industry.

(7)

Cambodia underlines that an additional period of time is important to maintain the momentum of the Cambodian bicycle industry and for new projects to take effect, notably in the field of promoting investments in other ASEAN members which will help to meet the needs of the Cambodian bicycle industry with regard to quality and price of the bicycle parts.

(8)

It appears from that additional information that Cambodia now affords its bicycle industry a satisfactory level of autonomy and the figures presented in its report show that a continuous fulfilment of the rule of origin allowing the use of up to 70 % of non-originating materials is now within reach. Therefore, given that improvement, there is no need for a long period of extension of the derogation or for a high number of units imported into the Union to be covered by that derogation. As the derogation for 2016 concerned 150 000 units, a number of 100 000 units will be sufficient to support Cambodia in completing the autonomy of its industry.

(9)

Nevertheless, as Cambodia explained in its request, making full use of the derogation depends on the seasonal rhythm separating the period for ordering parts (October-December) from the period of importation of those parts from the other countries (from May of the following year to March of the third year). Therefore it appears necessary to provide a sufficiently long period of time for the derogation to be beneficial. For the same purposes, this Regulation should enter into force on the day of its publication in the Official Journal of the European Union.

(10)

In order to allow efficient monitoring of the operation of the derogation, it is necessary to require the authorities of Cambodia to communicate regularly to the Commission the details of the certificates of origin Form A which have been issued within the framework of the derogation.

(11)

The derogation should concern all products of HS heading 8712 using parts of HS heading 8714 originating in Malaysia.

(12)

The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,

—

‘Derogation — Commission Implementing Regulation (EU) 2018/348’,

9.3.2018   

EN

Official Journal of the European Union

L 67/28

(1)

Annex I to Regulation (EC) No 881/2002 lists the persons, groups and entities covered by the freezing of funds and economic resources under that Regulation.

(2)

On 6 March 2018, the Sanctions Committee of the United nations Security Council decided to add three entries to the list of persons, groups and entities to whom the freezing of funds and economic resourced should apply. Annex I to Regulation (EC) No 881/2002 should therefore be amended accordingly.

(3)

In order to ensure that the measures provided for in this Regulation are effective it should enter into force immediately,

9.3.2018   

EN

Official Journal of the European Union

L 67/30

(1)

Directive 2001/18/EC sets out requirements for the environmental risk assessment of genetically modified organisms (‘GMOs’).

(2)

On 4 December 2008, the Council adopted Conclusions on GMOs stressing the need to update and strengthen the environmental risk assessment of GMOs, in particular concerning the assessment of long-term environmental effects.

(3)

Following a request from the Commission, the European Food Safety Authority (EFSA) adopted in October 2010 a Scientific opinion establishing guidance on the environmental risk assessment of genetically modified plants (2) (‘the Guidance’), which is a revision of the previous guidance. Other guidance documents issued by EFSA and by the European Medicines Agency are relevant to the environmental risk assessment of GMOs other than plants.

(4)

Article 3 of Directive (EU) 2015/412 of the European Parliament and of the Council (3) provides that by 3 April 2017 the Commission has to update the Annexes to Directive 2001/18/EC as regards the environmental risk assessment with a view to incorporating and building upon the Guidance, which is not legally binding.

(5)

In order to adapt to technical progress and taking into account the experience gained in the environmental risk assessment of genetically modified plants, the essential elements of the Guidance should be incorporated in Directive 2001/18/EC. In doing so, the principle that the environmental risk assessment should be carried out on a case-by-case basis should be respected.

(6)

The Guidance was essentially designed for notifications for the purpose of placing on the market (‘Part C notifications’) of genetically modified plants, while Annex II to Directive 2001/18/EC applies to both Part C notifications and notifications for other purposes than placing on the market (‘Part B notifications’). Therefore, certain requirements resulting from the incorporation of the Guidance in Annex II should only apply to Part C notifications, as they would be irrelevant or disproportionate in the context of Part B notifications, which essentially concern experimental releases.

(7)

Part C of Annex II to Directive 2001/18/EC concerns the methodology of the environmental risk assessment. It should be updated in order to incorporate, in particular, the terminology used to describe the six steps of the assessment approach as described in the Guidance.

(8)

Part D of Annex II to Directive 2001/18/EC applies to the conclusions of the environmental risk assessment and contains two distinct sections, concerning GMOs other than higher plants (Section D.1) and genetically modified higher plants (Section D.2) respectively. The Guidance considers seven specific areas of risk to be addressed in the environmental risk assessment of genetically modified plants in order to draw conclusions. The structure and content of Section D.2 of Annex II should therefore be updated to reflect those areas of risk.

(9)

Where the environmental risk assessment concerns a genetically modified plant made tolerant to a herbicide, its scope should be consistent with Directive 2001/18/EC. The environmental risk assessment of the use of a plant protection product, including its use on a genetically modified plant, falls under the scope of Regulation (EC) No 1107/2009 of the European Parliament and of the Council (4) and will be carried out at Member State level to take into account the specific agricultural conditions.

(10)

Annex III B to Directive 2001/18/EC lists the information required in notifications concerning releases of genetically modified higher plants and applies to both Part C notifications and Part B notifications. Its structure, content and level of detail should be amended to ensure consistency with the Guidance. As most of the changes induced by the Guidance concern the environmental risk assessment of Part C notifications, and in the interest of clarity and simplification for the notifiers and the competent authorities, it is appropriate to modify the structure of Annex III B by separating the requirements concerning Part C notifications from the requirements concerning Part B notifications.

(11)

The majority of the requests for authorisation of the placing on the market of genetically modified plants are submitted in accordance with Regulation (EC) No 1829/2003 of the European Parliament and of the Council (5). In the interest of simplification, it is therefore appropriate to align, to the extent possible, the order of the pieces of information required for Part C notifications in Annex III B to Directive 2001/18/EC with the order followed in Commission Implementing Regulation (EU) No 503/2013 (6).

(12)

Annex IV to Directive 2001/18/EC sets out additional information requirements only for Part C notifications. The requirements set out in that Annex concerning detection methods should be updated in the light of technical progress, in particular as regards the submission by notifiers of the reference material.

(13)

The measures provided for in this Directive are in accordance with the opinion of the Committee set up under Article 30 of Directive 2001/18/EC,

9.3.2018   

EN

Official Journal of the European Union

L 67/46

(1)

By Implementing Regulation (EU) 2017/1795 (2) the European Commission (‘the Commission’) imposed a definitive anti-dumping duty on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel (‘HRF’) originating in Brazil, Iran, Russia and Ukraine and terminated the investigation on imports of certain hot-rolled flat products of iron, non-alloy or other alloy steel originating in Serbia (‘the definitive Regulation’).

(2)

During the investigation that led to the imposition of this duty, five exporting producers from Brazil, Iran, Russia and Ukraine offered price undertakings. As these offers were made after an additional final disclosure that came late in the investigation, the Commission was unable to analyse whether such price undertakings were acceptable, prior to the deadline for the adoption of the definitive Regulation. Therefore, considering this as an exceptional circumstance, the Commission undertook to complete the analysis of these five offers at a later stage. After the conclusion of the investigation and the publication of the definitive Regulation a sixth exporting producer offered a price undertaking.

(3)

On 18 December 2017, the Commission informed all interested parties of the assessment of the undertaking offers underlying its intention to reject all undertaking offers (‘Commission's assessment’). On the basis of this information, interested parties made written submissions providing comments on the assessment and, in some cases, further amendments to their offers. Interested parties who requested to be heard were also granted a hearing.

(4)

On 3 January 2018, the Commission received a request from the Government of Ukraine for consultation pursuant to Article 50 bis EU-Ukraine Association Agreement (3). The consultations were held on 26 January 2018. Written comments were submitted on 31 January 2018.

(5)

The adequacy and practicability of all offers were assessed in the light of the applicable legal framework, including the EU-Ukraine Association Agreement in the case of the Ukrainian exporting producer.

(6)

The exporting producer offered one minimum import price (‘MIP’) per tonne for a certain volume of exports to the Union and another — higher — MIP for a volume above that. The exporting producer also offered a price adjustment mechanism.

(7)

The offer based on one average MIP is inadequate as it will not remove the injurious effects of dumping for all product types, in particular the most expensive ones. As acknowledged in recitals 632 and 655 of the definitive Regulation, the Commission considered that a measure in the form of a company-specific fixed amount per tonne reflected the injury caused by the exporting producer found to be dumping more accurately than a MIP. It also ensures that, unlike a MIP, the duty removes injury entirely, giving immediate protection to the Union industry. Furthermore, the offer covers transactions between related entities. The very nature of such relations presents numerous possibilities for cross-compensation. Any other transaction, loan or grant between the two related entities could be used to offset the MIP. The Commission is unable to monitor these transactions and it lacks appropriate benchmarks that would enable it to verify whether they are genuine or compensatory.

(8)

Furthermore, the acceptance of the offer would be impractical. The exporting producer has related companies in several Member States, some of which further process the product concerned. The exporting producer also sells other products to the Union customers and its related importer sells like products from other sources. It is thus impossible for the Commission to monitor these activities effectively, as well as the implementation of two different MIPs depending on the export volume.

(9)

In response to the Commission's assessment, the exporting producer argued that the MIP proposed in its offer removes the injurious effect of dumping, as the same MIP was proposed by the Commission at a stage of the investigation. The exporting producer pointed out that the MIP is based on weighted average import prices of all product types. Consequently, the MIP would not be to the detriment of the Union producers since, lower-tier priced product types would be placed at a higher level prices than they should have been, thus compensating for the higher-tier priced product types. If this logic were to be applied to the product type composition of its exports during the investigation period, according to the exporting producer the MIP would be sufficient to remove the injurious effect of dumping. Furthermore, the exporting producer argued that the MIP should not be adjusted on the account of sales via a related company, due to, amongst others, the way its export price was established in the definitive Regulation. The exporting producer then argued that cross-compensation is impossible for a number of reasons, in particular because cross-compensation would show in the annual reports of the exporting producer and its related companies. The exporting producer also amended its undertaking offer. In the new offer the exporting producer undertook to cease resales of HRF via its related entity in the Union and to report on sales of other products to the Union.

(10)

Concerning the comment that the proposed MIP removes the injurious effect of dumping because it is identical to the one proposed by the Commission at a stage of the investigation, the Commission noted that ultimately that solution was rejected. The reasons for this rejection were given in, among others, recitals 632 and 655 of the definitive Regulation, which are summarised in recital 7 above. The Comment regarding MIP being based on weighted average import prices, did not affect the conclusion that the MIP does not remove the injurious effect of dumping for the most expensive product types. The Commission was not able to retrieve data to support the claim that the injurious effect of dumping would have been removed by the MIP due to the product-type composition of the exports during the investigation period. Nor did the Applicant provide such data. Even if it had available to it the data supporting this claim, the Commission found that there is nothing preventing the product-type composition to shift towards the higher-tier priced product types. Indeed, the very application of the MIP could favour such shift. Concerning the comment that the MIP should not be adjusted on the account of sales via a related company, the Commission could agree that indeed, considering the circumstances of the case in the investigation period and, in particular, the way the export price for the exporting producer was established in the definitive Regulation, this adjustment would not be warranted. However, there is no guarantee that the circumstances will not change in particular since the companies are related. Finally, concerning the amendment of the offer and the risks of cross-compensation, the Commission noted that, whilst the commitment not to re-sell the product concerned would limit some of the cross-compensation risks the principal issue, namely the MIP being applied to transactions between related entities, remains. Such association between two entities offers numerous possibilities for cross-compensation that cannot be effectively monitored by the Commission. Not all of these would be shown in the annual reports, and for those that would the Commission would lack the appropriate benchmarks capable of assessing whether they are of compensatory nature. An undertaking covering related sales may be accepted only if the product concerned is eventually re-sold to an independent customer and the MIP, appropriately adjusted, can be applied to those transactions. This is impossible if the product concerned is transformed into another product.

(11)

The exporting producer offered one MIP per tonne for all of its exports.

(12)

The offer based on one average MIP is inadequate as it will not remove the injurious effects of dumping for all product types, in particular the most expensive ones. As acknowledged in recitals 632 and 655 of the definitive Regulation, the Commission considered that a measure in the form of a company-specific fixed amount per tonne reflected the injury caused by the exporting producer found to be dumping more accurately than a single MIP. It also ensures that, unlike a single MIP, the duty removes injury entirely, giving immediate protection to the Union industry. The offer is also inadequate as the exporting producer did not propose an adjustment mechanism while the prices of HRF tend to vary significantly over time.

(13)

Furthermore, the acceptance of the offer would be impractical. Due to the global structure and sales activities of the exporting producer, the price undertaking proposed could not be effectively monitored, offering several opportunities for price cross-compensation. The exporting producer has a number of related companies in several Member States and outside the Union. Furthermore, the exporting producer sells also other products to the Union. It is thus impossible for the Commission to monitor these activities effectively.

(14)

The exporting producer offered one MIP per tonne for all of its exports, adjusted for sales via its trader in the Union.

(15)

The offer based on one average MIP is inadequate as it will not remove the injurious effects of dumping for all product types, in particular the most expensive ones. As acknowledged in recitals 632 and 655 of the definitive Regulation, the Commission considered that a measure in the form of a company-specific fixed amount per tonne reflected the injurious dumping found for the exporting producer more accurately than a MIP. It also ensures that, unlike a MIP, the duty removes the injurious dumping entirely, giving immediate protection to the Union industry. The offer is also inadequate as the exporting producer did not propose an adjustment mechanism while the prices of HRF tend to vary significantly over time.

(16)

Furthermore, the acceptance of the offer would be impractical. Due to the fact that the exporting producer sells to the Union other products, the price undertaking proposed would be impossible to be effectively monitored, offering opportunities for price cross-compensation. It is thus impossible for the Commission to monitor these activities effectively.

(17)

In response to the Commission's assessment, the exporting producer argued that the Commission was silent on the fact that its offer mirrored Commission's proposal at a stage of the investigation. The exporting producer requested an explanation as to why an offer mirroring that proposal is not suitable. The exporting producer argued that the MIP it proposed is higher than that proposed by the Commission during the investigation and thus the MIP proposed in the undertaking, by definition, removes the injury to the Union industry. Furthermore, the exporting producer argued that there is no difference between a MIP and a specific duty per tonne as far as removal of injurious effect of dumping for the most expensive product is concerned, thus this argument is irrelevant. The exporting producer argued the fact that it sells other products to the Union does not automatically create a risk of cross-compensation. Finally, it argued that the undertaking invoices would remove any risk of circumvention or cross-compensation just in the same way as the valid commercial invoice proposed in the final general disclosure document would.

(18)

The Commission noted that its assessment is not only vocal on the similarities between the undertaking offer and an option being considered at a stage of the investigation, in recital 15 above it points to and summarises the part of the definitive Regulation explaining why that option was rejected. The same reasoning applies to the exporting producer's comment comparing undertaking invoices to one of the solutions being considered during the investigation and ultimately rejected by the Commission. The fact that the MIP proposed by the exporting producer is higher than the one considered by the Commission at one point during the investigation does not mean that it, by definition, removes the injurious effect of dumping. The difference is minor and it did not affect the reasoning that an average MIP is inadequate as it will not remove the injurious effects of dumping for all product types, in particular the most expensive ones. The comment that the MIP and a specific duty are equally ineffective in this respect is also misplaced. Unlike a MIP, a specific duty forces importers to pay more for more expensive product type, as the market price of a product type is a part of the price they pay, the other part being the duty. This is different in case of a MIP that is the same for all product types. Finally, indeed, sales of other products to the Union may be used for cross-compensation only if they are sold to the same customers as the HRF. However the Commission noted that cross-compensation and the risk of cross-compensation are two different concepts. For instance, the Commission knows that the exporting producer sells other products to the Union but does not have data concerning the exporting producer's customers for those products. Notably, the exporting producer did not deny selling other products to its HRF customers nor did it undertake not to do that in the future. This situation, whilst not proving cross-compensation, clearly presents a risk of cross-compensation that the Commission is unable to monitor.

(19)

The exporting producer offered two MIPs per tonne, one for sheets and one for coils. The exporting producer also offered a price adjustment mechanism and, in an amendment to its offer, undertook to sell the product concerned only directly to independent customers in the Union and not to sell other products to its HRF customers in the Union.

(20)

The exporting producer's offer was submitted after the conclusion of the investigation and as such should be rejected. Whilst, according to Article 8(2) of the basic Regulation, in exceptional circumstances, undertakings may be offered after the period during which representations may be made pursuant to Article 20(5) of the basic Regulation, such offer should come at a reasonable time before the conclusion of the investigation.

(21)

However, even if the offer was submitted in due time, the offer based on two average MIPs is inadequate as it will not remove the injurious effects of dumping for all product types, in particular the most expensive ones. As acknowledged in recitals 632 and 655 of the definitive Regulation, the Commission considered that a measure in the form of a company-specific fixed amount per tonne reflected the injurious dumping found for the exporting producer more accurately than a MIP. It also ensures that, unlike a MIP, the duty removes the injurious dumping entirely, giving immediate protection to the Union industry.

(22)

Furthermore, the acceptance of the offer would be impractical. Due to the global structure and sales activities of the exporting producer, the price undertaking proposed would be impossible to be effectively monitored, offering several opportunities for price cross-compensation. The exporting producer has a number of related companies and sells also other steel products to the Union. It is thus impossible for the Commission to monitor these activities effectively.

(23)

In response to the Commission's assessment, the exporting producer expressed its disagreement with the above assessment whilst emphasising the importance of its additional commitments to use only one sales channel and not to sell other products to its HRF customers.

(24)

In relation to the additional commitments the Commission noted that, considering the exporting producer's global structure and the global structure of its customers, it is impossible to monitor all the available cross-compensation possibilities. For instance if the companies covered by the undertaking do not sell other products to an HRF customer in the Union, there is nothing preventing their related companies be it in the Union or outside entering into potentially cross-compensatory transactions with these customers or their related entities. Whilst the exporting producer disagreed with the assessment of the adequacy of its offer it did not put forward any additional arguments against the conclusion reached by the Commission.

(25)

The exporting producer first offered several MIPs per tonne depending on a product type. Then it amended its offer, proposing one MIP per tonne for all product types with an adjustment mechanism based on the average HRF prices. In addition, the exporting producer proposed a quantitative annual ceiling and undertook to sell only to its related company in the Union and only for further processing.

(26)

The offer based on one average MIP is inadequate as it will not remove the injurious effects of dumping for all product types, in particular the most expensive ones. As acknowledged in recitals 632 and 655 of the definitive Regulation, the Commission considered that a measure in the form of a company-specific fixed amount per tonne reflected the injurious dumping found for the exporting producer more accurately than a MIP. It also ensures that, unlike a MIP, the duty removes the injurious dumping entirely, giving immediate protection to the Union industry. Furthermore, the offer covers transactions between related entities. The very nature of such relations presents numerous possibilities for cross-compensation. Any other transaction, loan or grant between the two related entities could be used to offset the MIP. The Commission is unable to monitor these transactions and it lacks appropriate benchmarks that would enable it to verify whether they are genuine or compensatory.

(27)

The acceptance of the offer would also be impractical. Due to the global structure and sales activities of the exporting producer, the price undertaking proposed would be impossible to be effectively monitored, offering several opportunities for price cross-compensation. Furthermore, related companies in the Union also produce and sell the like product. It is thus impossible for the Commission to monitor these activities effectively.

(28)

In response to the Commission's assessment the exporting producer argued that the Commission overlooked the two key elements of its offer namely the quantitative ceiling and the end-use commitment (i.e. further processing only). According to the exporting producer these two commitments ensure that exports at dumped prices would cease as the product concerned would not be exported to the Union free market. The exporting producer then argued that in the definitive Regulation the Commission did not find injury on the captive market. Despite these arguments, in the spirit of full cooperation, the exporting producer amended its offer, offering 22 MIPs based on product types. With regard to the risk of cross-compensation the exporting producer argued that, as there will be no sales to the free market, it is in fact irrelevant at which minimum price the product concerned is sold within the group. Since such minimum price is irrelevant, the risk of cross-compensation is equally irrelevant. The exporting producer further argued that intra-group transactions are subject to group's transfer price policy and thus cannot be used for cross-compensation.

(29)

The exporting producer did not sell HRF to its related entities in the Union during the investigation period. In addition, contrary to what the exporting producer suggested, intra-group sales of HRF for further processing were not excluded from the finding of injurious dumping in the definitive Regulation. These sales are currently covered by the applicable duty and this finding cannot be reversed through an undertaking. Considering that the exporting producer's argument for impossibility of cross-compensation within the group hinges on an incorrect assumption that intra-group sales for processing do not cause injurious dumping, that argument was therefore rejected. Furthermore, the group's internal transfer policy is the group's own internal decision and as such it is not a sufficient guarantee against cross-compensation. Even if it were, cross-compensation within the group could be done via other means than a sale of goods. An undertaking covering related sales may be accepted only if the product concerned is eventually re-sold to an independent customer and the MIP, appropriately adjusted, can be applied to those transactions. This is impossible if the product concerned is transformed into another product. The offer of 22 MIPs based on groups of product types could not be accepted as its effective monitoring by customs would be impossible.

(30)

The exporting producer proposed two scenarios in its original offer. The first scenario is based on one MIP per tonne (its average price during the investigation period, increased by the duty and adjusted for the increase of the price of the raw materials after the investigation period ) and with possibility of selling below that MIP, under the duty. The second scenario is based on a lower MIP per tonne (without the adjustment for the increase of the price of the raw materials after the investigation period) and without possibility of selling below that MIP. Subsequently, the exporting producer amended its offer by adding an annual quantitative ceiling for sales under the undertaking.

(31)

The Commission does not accept the so called pick-and-choose clauses whereby the exporting producer is allowed to sell within an undertaking and in parallel below the MIP under the duty, thus the only scenario open for consideration is the second one. Acceptance of such clause would allow for a cross-compensation mechanism where transactions at the MIP level could be offset by transactions at prices below MIP.

(32)

Article 50 of the EU-Ukraine Association Agreement expresses a preference for undertakings, provided that the Commission receives a workable offer that is adequate and the acceptance of which is not considered impractical. In this case, for the reasons explained below, the Commission did not receive a workable undertaking offer and therefore the preference cannot be accommodated.

(33)

In the Commission's assessment there are several reasons for which the offer is inadequate. It is based on one average MIP thus it will not remove the injurious effects of dumping for all product types, in particular the most expensive ones. As acknowledged in recitals 632 and 655 of the definitive Regulation, the Commission considered that a measure in the form of a company-specific fixed amount per tonne reflected the injurious dumping found for the exporting producer more accurately than a MIP. It also ensures that, unlike a MIP, the duty removes the injurious dumping entirely, giving immediate protection to the Union industry. The exporting producer did not propose an adjustment on the account of sales via its related companies. While the prices of HRF tend to vary significantly over time, the exporting producer did not propose an adjustment mechanism. Furthermore, only two out of the three production sites that exported the product concerned to the Union during the investigation period are covered by the undertaking. Finally, the exporting producer proposed that its sales to related entities in the Union would be covered by the terms of the undertaking. The very nature of such relations presents numerous possibilities for cross-compensation. Any other transaction, loan or grant between the two related entities could be used to offset the MIP. The Commission is unable to monitor these transactions and it lacks appropriate benchmarks that would enable it to verify whether they are genuine or compensatory.

(34)

The acceptance of the offer would also be impractical. Due to the global structure and sales activities of the exporting producer, the price undertaking proposed would be impossible to be effectively monitored, offering several opportunities for price cross-compensation. The exporting producer has several related companies in various Member States and outside the Union, some of which produce and sell the like product. The exporting producer sells to the Union via one or more of these companies. It is thus impossible for the Commission to monitor these activities effectively.

(35)

In response to the Commission's assessment, the exporting producer submitted a third version of its undertaking offer. In the new version of the offer the exporting producer proposed four different MIPs and undertook not to sell below them. According to the exporting producer this change was made despite the Commission considering a single MIP for all product types acceptable at a stage of the investigation that lead to the imposition of the duty. Furthermore, the exporting producer undertook to include the third production site in the undertaking offer; not to sell the product concerned via its related entities in the Union; to provide details of its sales in the Union of other products to its Union HRF customers; and not to sell outside of the Union the product concerned and other products to its Union HRF customers. Finally, the exporting producer proposed a lower annual quantitative ceiling. Beyond that ceiling, the exporting producer offered to sell under the applicable anti-dumping duty.

(36)

In addition to these commitments, during the consultations the Government of Ukraine proposed to provide the Commission with export statistics for the product concerned and to establish an expert group that would facilitate the exchange of statistics and other information.

(37)

On 5 February 2018, the exporting producer made another amendment to its undertaking offer. The exporting producer argued that all of its sales are subject to strict price-making policy of the group and prevent cross-compensation. Furthermore, the exporting producer argued that the regular tax authorities' audits, both in the Union and in Switzerland, rigorously verify the pricing policies of the group. Despite these, the exporting producer undertook not to sell HRF produced in the Union and other products produced by its group to its HRF customers which buy the product concerned. This would apply to all of its customers except for one, who would be buying HRF from Ukraine, the Union and other products produced by the group.

(38)

Concerning the comment that the Commission considered a single MIP for all product types acceptable at a stage of the investigation, the Commission noted that ultimately that solution was rejected. The reasons for this rejection were given in, among others, recitals 632 and 655 of the definitive Regulation, which are summarised in recital 33 above.

(39)

The offer remains inadequate for several reasons. Out of the four MIP groups proposed there were barely any sales in one of them, there is a price variant in another and significant price variants in the remaining two groups. The MIPs, being based on the average prices in each group will therefore not remove the injurious effects of dumping for all product types, in particular the most expensive ones in each group. Furthermore, the levels of four MIPs were set in a completely arbitrary fashion. The Commission was presented with no data justifying the difference between the MIPs. Finally, whilst HRF prices tend to vary significantly over time, the exporting producer still did not propose an adjustment mechanism.

(40)

The acceptance of the undertaking offer remains impractical. The exporting producer undertook not to sell any products to its Union customers' entities based outside of the Union. However, this undertaking covers only the three producing companies and omits dozens of its related companies including the Swiss trader. Even if all these companies were covered by the undertaking, considering the size of the exporting producer's group and that of their customer base, such commitment would be impossible to monitor. Furthermore, the exporting producer proposed to report on sales of other products to its HRF customers in the Union. However the Commission would not have the appropriate benchmarks in order to verify whether these transactions are of a compensatory nature. Whilst the exporting producer undertook not to sell via its related entities in the Union, these entities sell the like product on the Union market. Whilst these transactions may concern the same customers and thus can be used for compensation, they are completely outside of the scope of the undertaking.

(41)

The amendment to the undertaking offer proposed on 5 February 2018 (i.e. to sell only the product concerned to all of its HRF customers in the Union, except for one), does not remove the abovementioned concern for the excluded customer. For the other customers, considering the size of the exporting producer's group, it would be impossible to monitor whether any of the companies related to the exporting producer sell other products to the Union HRF customers or their related entities. The internal pricing policies of the exporting producer and the customer it intends to sell to are not a sufficient guaranty against cross-compensation. Furthermore, the exporting producer failed to explain how tax authorities' audits in the Union and in Switzerland would detect cross-compensatory prices. Agreeing to sell a product at a price lower than otherwise would be demanded is not necessary an offence against a tax law. It is part of day-to-day price negotiations.

(42)

Finally, the sales beyond the annual ceiling under the applicable anti-dumping duty cannot be accepted as they could be used for compensation. This is basically a variation of the pick-and-choose clauses described in recital 31 above, postponed in time. Therefore, by lowering the ceiling well below the historical annual export quantities, this new offer increases the risk of cross-compensation.

(43)

Despite the preference for undertakings expressed in Article 50 of the EU-Ukraine Association Agreement, the offer cannot be accepted as it is inadequate. Had it been adequate, for the reasons outlined above, its acceptance would still be impractical. None of the concerns listed above would have been sufficiently addressed by the exchange of statistics and the creation of the expert group proposed by the Government of Ukraine during the consultation.

(44)

For the reasons set out above the Commission cannot accept any of these undertaking offers.

(45)

The interested parties have been informed of the reasons underlying this decision and were given an opportunity to comment and to be heard. The Government of Ukraine was also offered consultation in accordance with Article 50 bis of the EU-Ukraine Association Agreement. Consultations took place with the Ukrainian authorities on 26 January 2018, with the Government of Ukraine providing written comments on 31 January 2018. In addition, a number of hearings with the exporting producers concerned and Eurofer, representing the Union industry, took place. All comments received throughout this process were addressed above. Neither the comments provided by interested parties, nor the consultations with the Government of Ukraine, led to a different conclusion than the rejection of the undertaking offers,