(1)

Regulation (EU) 2019/1009 lays down rules on the making available on the market of EU fertilising products. EU fertilising products contain component materials of one or more of the categories listed in Annex II to that Regulation.

(2)

In accordance with Article 42(1) of Regulation (EU) 2019/1009, the Commission is empowered to adopt delegated acts in accordance with Article 44 for the purpose of adapting Annex II to technical progress.. Pursuant to Article 42(3) of Regulation (EU) 2019/1009 read in conjunction with Article 6 of Directive 2008/98/EC of the European Parliament and of the Council (2), the Commission may include in the component material categories materials that cease to be waste following a recovery operation if such materials are to be used for specific purposes, have an existing market or demand and their use do not lead to overall adverse environmental or human health impacts.

(3)

The Commission’s Joint Research Centre (‘JRC’) has identified certain high purity materials which could be recovered from waste and used as component materials in EU fertilising products (3).

(4)

The high purity materials identified by the JRC are ammonium salts, sulphate salts, phosphate salts, elemental sulphur, calcium carbonate and calcium oxide. All those materials are covered by Regulation (EC) No 2003/2003 of the European Parliament and of the Council (4), have a significant market demand and have proven their high agronomic value during a long history of use in the field.

(5)

As a first measure to ensure both safety and agronomic efficiency, a minimum purity requirement of high purity materials should be laid down. According to the information available in JRC’s assessment report, a 95 % purity, expressed in terms of the dry matter of the material, will ensure high agronomic efficiency with low risks to the environment, health and safety. While, for some materials, this high purity is set at more ambitious levels than those required by Regulation (EC) No 2003/2003, it is estimated that such a higher purity is achievable based on existing practices.

(6)

In addition, it is appropriate to specify that high purity materials are recovered from waste following two types of processes: processes that isolate salts or other elements through (a combination of) advanced purification methods, such as crystallisation, centrifugation or liquid-liquid extraction, often applied in (petro-)chemical industries; and gas purification or emission control processes designed to remove nutrients from off-gases.

(7)

Therefore, the content of certain impurities, pathogens or contaminants which are specific to those materials, or the content of organic carbon should be limited, based on the JRC assessment report. Such criteria should apply in addition to the safety criteria laid down in Annex I to Regulation (EU) 2019/1009 for the corresponding product function category and without prejudice to Regulation (EU) 2019/1021 of the European Parliament and of the Council (5).

(8)

Consequently, additional limit values should be laid down for the contaminants total chromium and thallium. Some of the high purity materials may contain such contaminants as a result of the input materials and the processes they are obtained from. The proposed limit values for those contaminants should ensure that the use of EU fertilising products containing high purity materials with such contaminants does not lead to their accumulation in soil. In addition, requirements on the content of pathogens should be introduced for all EU fertilising products containing or consisting of high purity materials given the broad variety of processes they could be obtained from and the waste streams allowed as input materials. The limit values for both the contaminants and the pathogens should be determined as concentration in the final product, similar to the requirements set out in Annex I to Regulation (EU) 2019/1009. This is justified by the fact that the safety criteria introduced in reply to any particular risks identified concern, as a rule, the final product and not a component material. This should also facilitate the market surveillance of such products, as tests are to be carried out only on the final product.

(9)

Furthermore, additional safety criteria should be laid down to limit the content of 16 polycyclic aromatic hydrocarbons (PAH16) (6) and of polychlorinated dibenzo-p-dioxins and dibenzofurans (PCDD/PCDF) (7). Regulation (EU) 2019/1021 lays down release reductions for PAH16 and PCDD/PCDF as unintentionally produced substances during manufacturing processes, but does not introduce a limit value in such cases. Given the high risks generated by the presence of such pollutants in fertilising products, it is considered appropriate to introduce more stringent requirements than those laid down in that Regulation. Such limit values should be laid down at component material level and not as concentration in the final product, to ensure coherence with Regulation (EU) 2019/1021.

(10)

These limit values may not be relevant for all high purity materials to be included as a new component material category. Therefore, manufacturers should have the possibility to presume the conformity of the fertilising product with a given requirement without verification, such as testing, whenever the compliance with the said requirement follows certainly and uncontestably from the nature or the recovery process of the respective high purity material or of the manufacturing process of the EU fertilising product.

(11)

As an additional safety measure, the high purity materials should be registered based on Regulation (EC) No 1907/2006 of the European Parliament and of the Council (8), in the extensive conditions already laid down in Regulation (EU) 2019/1009 for chemical substances in other component material categories. This should ensure that the manufacturers take into account the use as a fertilising product when performing the risk assessment under that Regulation and that the registration is done also for low tonnage materials.

(12)

Furthermore, some of the high purity materials may be available on local markets in quantities that exceed demand. To ensure that market demand for high purity materials exists and that their long-term storage under suboptimal conditions does not lead to adverse environmental impacts, it is appropriate to limit the period of time during which they can be used as component materials for EU fertilising products after they have been generated. Manufacturers should be required to sign the EU declaration of conformity for the EU fertilising product containing the said material within that period.

(13)

Based on the above, the Commission concludes that high purity materials if recovered following the recovery rules suggested in JRC’s assessment report, ensure agronomic efficiency within the meaning of Article 42(1), first subparagraph, point (b)(ii), of Regulation (EU) 2019/1009. Furthermore, they comply with the criteria laid down in Article 6 of Directive 2008/98/EC. Finally, if compliant with the other requirements in Regulation (EU) 2019/1009 in general and in Annex I to that Regulation in particular, they would not present a risk to human, animal or plant health, to safety or to the environment within the meaning of Article 42(1), first subparagraph, point (b)(i), of Regulation (EU) 2019/1009. Such materials would also have a useful purpose as they would replace other raw materials used in the production of EU fertilising products. Therefore, recovered high purity materials should be included in Annex II to Regulation (EU) 2019/1009.

(14)

Furthermore, given the fact that high purity materials are recovered waste within the meaning of Directive 2008/98/EC, they should be excluded from component material categories 1 and 11 of Annex II to Regulation (EU) 2019/1009 pursuant to Article 42(1), third subparagraph, of that Regulation.

(15)

Some of the high purity materials may contain selenium which can be toxic if present in high concentration. Some may also contain chloride, which may raise concerns regarding the salinity in soil. Whenever those substances are present in concentrations exceeding a certain limit, their content should be indicated on the label so that the users of the fertilising product are properly informed. Annex III to Regulation (EU) 2019/1009 should be amended accordingly.

(16)

It is important to ensure that when fertilising products contain high purity materials, they are subject to an appropriate conformity assessment procedure including a quality system assessed and approved by a notified body. Therefore, it is necessary to amend Annex IV to Regulation (EU) 2019/1009 to provide for a conformity assessment appropriate for such fertilising products.

(17)

Given that the requirements set out in Annexes II and III to Regulation (EU) 2019/1009 and the conformity assessment procedures set out in Annex IV to that Regulation are to apply as of 16 July 2022, it is necessary to defer the application of this Regulation to the same date,

(1)

Regulation (EU) 2021/2116 lays down the basic rules concerning, inter alia, the integrated administration and control system (‘integrated system’) and the application and calculation of administrative penalties for conditionality. In order to ensure the smooth functioning of the new legal framework, certain rules have to be adopted to supplement the provisions laid down by that Regulation in the areas concerned.

(2)

The rules on the integrated system and the application and calculation of administrative penalties for conditionality should ensure an efficient control system of the rules to be applied by Member States and beneficiaries in the framework of the common agricultural policy (CAP) and should therefore be laid down in one delegated act. These new rules should replace the relevant provisions of Commission Delegated Regulation (EU) No 640/2014 (2).

(3)

In particular, rules should be established to supplement certain non-essential elements of Regulation (EU) 2021/2116 in relation to the functioning of the integrated system referred to in Article 65 of that Regulation, rules on the quality assessments referred to in Articles 68(3), 69(6) and 70(2) of that Regulation, rules on the identification system for agricultural parcels referred to in Article 68 of that Regulation and detailed rules on the application and calculation of administrative penalties for conditionality referred to in Article 85 of that Regulation.

(4)

The identification system for agricultural parcels is to provide valuable, comprehensive and reliable information relevant for reporting on policy performance, contributing to the efficient implementation of the area-based interventions as well as supporting beneficiaries in submitting correct aid applications. To ensure these objectives are met, rules are necessary to clarify the technical requirements that Member States need to follow and how the information available is to be structured and updated.

(5)

In order to allow Member States to identify pro-actively possible weaknesses in the integrated system and to take appropriate remedial action when required, rules should be provided on the annual quality assessment of the identification system for agricultural parcels, of the geo-spatial application system and of the area monitoring system. Experience regarding the quality assessment of the identification system for agricultural parcels pursuant to Delegated Regulation (EU) No 640/2014 has shown that the development of technical guidance by the Commission is particularly helpful. Such technical guidance helps Member States apply an adapted methodology to carry out their assessments. Given the importance of the quality assessments for a properly functioning integrated system providing reliable and verifiable data in the annual performance reporting, the Commission should assist Member States in a similar manner to carry out the quality assessments provided for under Regulation (EU) 2021/2116.

(6)

The quality assessments are to assess if the integrated system delivers on its purpose to provide reliable and comprehensive information relevant for the annual performance reporting, as required by Article 66(2) of Regulation (EU) 2021/2116, in particular the correct number of hectares for the output and the correct share of areas for result indicators of area-based interventions. This will require combining relevant results from the quality assessment of the area monitoring system and the geo-spatial application system in an effort to avoid overestimating this impact due to areas where both measurement errors and incorrect decisions on eligibility conditions occurred. For this purpose, the verification of the declared area in the quality assessment of the geo-spatial application system should be based on the same sample of parcels as the ones in the quality assessment of the area monitoring system.

(7)

In addition, the quality assessment related to the area monitoring system is to ensure that results are comparable across Member States, irrespective of the possibility to defer in time the deployment of a fully operational implementation of the area monitoring system. This quality assessment should therefore cover all area-based interventions and the relevant eligibility conditions irrespective of the Member State’s decision to have a fully operational area monitoring system only as from 1 January 2024, as referred to in Article 70(1) of Regulation (EU) 2021/2116. The quality assessment of the area monitoring system should provide diagnostic information both at the level of interventions and at the level of eligibility conditions, based on which the Member States should take appropriate remedial actions, where necessary.

(8)

For the sake of clarity and in order to establish a harmonised basis for the calculation and application of administrative penalties for conditionality, it is necessary to lay down common definitions and general principles regarding non-compliance.

(9)

Regulation (EU) 2021/2116 provides that administrative penalties for conditionality are to be established having regard to the principle of proportionality. Therefore, reductions and exclusions should be graded according to the seriousness of the non-compliance and should go as far as the total exclusion of the beneficiary from all the payments and support referred to in Article 83(1), points (a), (b) and (c), of that Regulation in case of intentional non-compliance. In order to give legal certainty to beneficiaries, a time limit for the application of administrative penalties should be established.

(10)

Article 85(1) of Regulation (EU) 2021/2116 provides that the calculation of the administrative penalty for conditionality is to be done on the basis of the payments granted or to be granted to the beneficiary concerned in respect of aid applications or payments claims that have been submitted or will be submitted in the course of the calendar year in which the non-compliance occurred. Therefore, in order to ensure the link between the farmer’s behaviour and the penalty and to guarantee equal treatment amongst farmers, it is appropriate to provide that where the same non-compliance is occurring continuously throughout several calendar years, an administrative penalty is to be applied and calculated for each calendar year in which it can be determined that the non-compliance occurred.

(11)

In order to guarantee that the administrative penalties can be effectively applied and imputed, it is appropriate to provide that where, in the calendar year of the finding, the penalty exceeds the total amount of the payments granted or to be granted to the beneficiary or the beneficiary does not submit an aid application, the penalty is to be applied or imputed by means of recovery.

(12)

Pursuant to Article 85(3) of Regulation (EU) 2021/2116, regardless of whether a non-compliance is detected through area monitoring system or other means, no administrative penalties are to be imposed where the non-intentional non-compliance has no or only insignificant consequences for the achievement of the objective of the standard or requirement concerned. Due to the minor character of the non-compliances that have no or only insignificant consequences for the achievement of the objective of the standard or requirement concerned and in order to reduce the administrative burden, such non-compliances should not be considered for the purpose of determining the reoccurrence or persistence of a non-compliance.

(13)

Pursuant to Article 85(4) of Regulation (EU) 2021/2116, if a Member State uses the area monitoring system to detect cases of non-compliance, it may decide to apply lower percentage of reduction. It is appropriate to fix a minimum percentage of reduction.

(14)

Rules on the calculation of administrative penalties for several non-compliances in the same calendar year of occurrence should be laid down.

(15)

To ensure the smooth transition from the arrangements provided for in Regulation (EU) No 1306/2013 of the European Parliament and of the Council (3), it is considered appropriate to lay down transitional rules regarding the application of Article 104(1), second subparagraph, point (a)(iv), of Regulation (EU) 2021/2116, in order to avoid excessive administrative costs and burdens related to conditionality and cross-compliance checks applied to beneficiaries who receive area-based payments under both a CAP Strategic Plan pursuant to Regulation (EU) 2021/2115 of the European Parliament and of the Council (4) and a rural development programme implemented under Regulation (EU) No 1305/2013 of the European Parliament and of the Council (5) until 31 December 2025. To that end, area-related checks on conditionality should be deemed to cover also the checks on cross-compliance referred to in Article 96 of Regulation (EU) No 1306/2013. This is justified by the fact that, for area-based payments, conditionality rules are generally stricter than cross-compliance rules as regards both obligations and penalties. It can therefore be presumed that cross-compliance rules are respected, if the beneficiary complies with the obligations laid down in the rules on conditionality. However, if the checks on conditionality reveal non-compliances, the Member State can no longer presume that cross-compliance is complied with and should consequently carry out the checks referred to in Article 96 of Regulation (EU) No 1306/2013 and, in that context, apply the rules on calculation and application of administrative penalties in accordance with the provisions laid down in that Regulation.

(16)

In the interest of clarity and legal certainty, Delegated Regulation (EU) No 640/2014 should be repealed. However, that Regulation should continue to apply to aid applications for direct payments lodged before 1 January 2023, to payment claims made in relation to support measures implemented under Regulation (EU) No 1305/2013 and to the control system and administrative penalties as regards rules on cross-compliance.

(17)

Having regard to Article 104(1), second subparagraph, and Article 106 of Regulation (EU) 2021/2116, this Regulation should apply to interventions starting as from 1 January 2023 and implemented under Regulation (EU) 2021/2115.

(18)

Finally, in view of Point 31 of the Inter-institutional Agreement of 13 April 2016 on Better Law-Making, the Commission considers that there is a substantive link between the empowerments in Regulation (EU) 2021/2116 regarding the rules on the integrated system and the application and calculation of administrative penalties for conditionality, and there is an interconnection between them. It is, therefore, appropriate to lay down those rules in the same delegated act,

(1)

Regulation (EU) 2021/2116 lays down the basic rules concerning, inter alia, the obligations on Member States to protect the financial interests of the Union and to report on policy performance. In order to ensure the smooth functioning of the new legal framework, certain rules have to be adopted in relation to the assessment reports on quality of three elements (the identification system for agricultural parcels, the geo-spatial application system and the area monitoring system) of the integrated administration and control system (‘integrated system’) and the related remedial actions, the requirements for aid applications and the area monitoring system, the framework governing the acquisition of satellite data for the purpose of the area monitoring system and on checks of the approved interbranch organisations with regard to crop-specific payment for cotton. The new rules should replace the relevant provisions of Commission Implementing Regulation (EU) No 809/2014 (2).

(2)

The quality assessment reports of the identification system for agricultural parcels, of the geo-spatial application system and of the area monitoring system should be comprehensive to allow assessing reliability of the information generated by these elements of the integrated system. The content of these reports should also allow to conclude whether sufficient assurance is provided on the quality of the information used in relation to Member State’s obligation of performance reporting in respect to the output and result indicators of area-based interventions managed under the integrated system. Therefore, these reports should in particular contain information on the work carried out under the quality assessment, the deficiencies detected as well as diagnostic information on the potential root causes of these deficiencies. More specifically, the reports should include information on the data and imagery used for the quality assessments as well as their testing results. Experience regarding the exchanges of information between the Member States and the Commission in relation to the quality assessment of the identification system for agricultural parcels has shown that the use of dedicated electronic information systems is particularly helpful. In order to facilitate the work of the Member States and their communication with the Commission, such information systems should continue to be used and further developed, where necessary, for the reports of the three quality assessments provided for in Regulation (EU) 2021/2116.

(3)

In order to deliver on their purpose of providing reliable data for the annual performance report, the results of the three quality assessments, and notably the ones of the geo-spatial application system and of the area monitoring system, should be combined to estimate the area error of the reported data on output and result indicators stemming from deficiencies of the systems. Rules should be established on the remedial actions that may be needed to address the deficiencies in a defined timeframe. In addition, the reports prepared in relation to years 2024 and 2026 should allow verifying that the area monitoring system is properly established in all Member States and that the gradual implementation of the area monitoring system has been successful covering all eligibility conditions and interventions that can be monitored. For this purpose, the reports should contain a list of all eligibility criteria for all area-based interventions under the integrated system together with information regarding the data sources used for the analysis.

(4)

Member States should put in place a reliable and modern system to manage aid applications, allowing for communication by electronic means and operating in an annual cycle. Member States should take into account simplification for beneficiaries and national administration, for example by providing that one application can cover several interventions or several beneficiaries applying jointly or that one application per holding is considered in a given year in case of transfer of that holding. Member States should take the required measures to ensure the proper management of interventions where more than one paying agency is responsible for the same beneficiary.

(5)

Member States should harvest the benefits of digitisation by using, as a rule, the electronic means for all communication with beneficiaries. Moreover, to boost simplification, Member States should, to the extent possible, retrieve the information necessary for managing interventions from data sources at the disposal of public administration.

(6)

In order to facilitate the process of submitting aid applications, Member States should provide pre-filled forms, containing all information relevant for beneficiaries and the most recently updated. Member States should prevent irregularities by allowing for amendments to the pre-filled forms and providing guiding alerts helping the beneficiary to identify potential non-compliances and apply correctly. Member States should take into account the modifications introduced by beneficiaries for the update of the information in the databases of the national administration. For the sake of equal treatment of beneficiaries, if a Member State decides to apply the automatic claim system, such system should ensure the same level of detail as required for the aid application under this Regulation.

(7)

Aid applications under the integrated system should provide, to the extent possible, all information that is necessary for the proper and reliable management of the interventions covered and for the correct reporting on output and result indicators. For proper management of interventions, beneficiaries should remain responsible for the aid application submitted, so that all related rights and responsibilities can be clearly assumed.

(8)

The prevention of irregularities should be put in place by allowing the possibility of amending or withdrawing aid applications within a certain deadline. When all beneficiaries for a given intervention are covered by administrative checks and/or with the use of the area monitoring system, the deterrent effect of sanctions is not necessary. Therefore, the amendments or withdrawals should be allowed at any time prior to a deadline, which is necessary for the proper administration of interventions. However, amendments or withdrawals should not be allowed in respect to non-compliances related to non-monitorable eligibility conditions revealed from sources other than the area monitoring system and administrative checks. In other situations, the possibility to make amendments or withdrawals should not be allowed when the beneficiary has been informed of a planned on-the-spot check or such check, when unannounced, has already detected irregularities. In addition, in order to support reliability of information necessary for the interventions under Article 34(2) of Regulation (EU) 2021/2115 of the European Parliament and of the Council (3) for bovine animals, sheep and goats, the deadline to make amendments should be set in a way to allow changes in the aid application and updates in the computer database for animals prior to the date fixed by the Member State for the identification and registration requirement to be met.

(9)

Member States should ensure that the geo-spatial application includes the necessary information to manage area-based interventions under the integrated system and, to the extent necessary, area-based interventions in the wine sector and for requirements under conditionality. A non-exhaustive list of the elements of the geo-spatial application should be provided to offer useful guidance to Member States. In respect to the information on the use of plant protection products to be provided by the beneficiary when relevant for an intervention under the integrated system for which common agricultural policy (CAP) support is applied for, Member States may decide to use this information with regard to the obligation of registration of the use of these products as referred to in Regulation (EC) No 1107/2009 of the European Parliament and of the Council (4).

(10)

For proper management of animal-based interventions, certain rules on the content of the relevant aid applications should be laid down. To ensure transparency and equal treatment of beneficiaries, it should also be clarified that when automatic claim system is used, all animals that the beneficiary owns and are potentially eligible to receive aid under a given intervention are to be considered declared for that intervention.

(11)

Regulation (EU) 2021/2116 introduced the area monitoring system as a mandatory element of the integrated system. In order to ensure this obligation is properly implemented in a uniform manner, the area monitoring system should have the same scope in all Member States, thus covering all beneficiaries and all area-based interventions managed under the integrated system and all monitorable conditions. Automation of the data analysis under the area monitoring system should be prioritised in order to support the cross-cutting objective of modernisation of the CAP. For these reasons, the number of eligibility conditions that can be considered monitorable with Copernicus Sentinels satellites data or other data with at least equivalent value, should be gradually enlarged. For this purpose, Member States should ensure that in 2023 and 2024, all eligibility conditions that can be considered monitorable by automatic processing of Copernicus Sentinels satellites data, are subject to the area monitoring system. However, Member States may decide whether these monitorable eligibility conditions are actually addressed via the processing of Copernicus Sentinels satellite data or of other data with at least equivalent value. Where eligibility conditions cannot be considered monitorable via Copernicus Sentinels satellite data, Member States may decide to address these via the processing of other data with at least equivalent value or else consider them as being non-monitorable. From 2025 onwards, Member States should ensure that all eligibility conditions that can be considered monitorable by automatic processing of either Copernicus Sentinels satellites data or else geotagged photos are subject to the area monitoring system. However, considering the effort and investments needed to include the geotagged photos as data with at least equivalent value for the area monitoring system, Member States should be granted a period of time to carry out the necessary preparatory work. For this reason, Member States need to ensure that eligibility conditions that can be considered monitorable by geotagged photos should be covered in a gradual manner throughout the programming period. These efforts should ensure a constant rate of progress from 2025 onwards. Member States should decide which eligibility conditions that can be considered monitorable by geotagged photos become subject to the area monitoring system each year. In addition, to further facilitate Member States in the integration of this new technology in the area monitoring system, Member States should as a minimum, subject a percentage of interventions for which eligibility conditions can be considered monitorable only by geotagged photos to the area monitoring system before 1 January 2027. Member States should have the flexibility to decide which interventions, having at least one eligibility condition that will be monitored by geotagged photos under the area monitoring system, are included in the percentage. However, in their decision, Member States should ensure all area-based interventions are subject to area monitoring system as required by Article 70 of Regulation (EU) 2021/2116.

(12)

In addition, common set of requirements should also be set to ensure that areas claimed under an intervention are free from ineligible land, ineligible land use and changes in the category of agricultural area that could impact the analysis of intervention-specific eligibility conditions using the area monitoring system. Throughout the claim year, these requirements should be assessed in respect to the eligibility conditions of interventions included in a given aid application so as to enable a meaningful subsequent analysis by the area monitoring system. Land use should be assessed within a delineated area in order to conclude whether based on a given aid application and the intervention concerned, the expected spatial or temporal behaviour has occurred. When developing the area monitoring system, Member States should fully benefit of its potential by using the information available for updating the identification system for agricultural parcels and communicating with beneficiaries in view of allowing amendments to aid applications. When the Member State needs to inform the beneficiary of non-compliances following the results of the area monitoring system in cases of presence of ineligible areas or ineligible land use, the information on the non-compliance should be communicated as early as it is detected in order for the beneficiary to be given the possibility to amend the aid application as soon as possible and the analysis of the area monitoring system to occur once again in a meaningful and timely manner. It should also be clarified how the possibility of gradual implementation of the system applies in practice, by specifying the interventions to be covered in 2023.

(13)

For the area monitoring system to be able to cover all eligibility conditions of all area-based interventions managed under the integrated system, which can be monitored with Copernicus Sentinels satellites data or other data with at least equivalent value, it is necessary to expand the types of data and provide the standards ensuring their equivalence to satellite data. In order to avoid gaps in the modernisation efforts of Member States, geotagged photos should be considered as data with at least equivalent value for the purpose of the area monitoring system.

(14)

Specific rules need to be laid down for an objective and efficient procedure under which the acquisition of satellite data for the purpose of the area monitoring system is to be carried out.

(15)

For proper management of the interventions with regard to cotton, certain rules should be provided on the content of checks that Member States carry out on the approved interbranch organisations.

(16)

In the interest of clarity and legal certainty, Implementing Regulation (EU) No 809/2014 should be repealed. However, that Regulation should continue to apply to aid applications for direct payments lodged before 1 January 2023 and to payment claims made in relation to support measures implemented under Regulation (EU) No 1305/2013 of the European Parliament and of the Council (5).

(17)

The measures provided for in this Regulation are in accordance with the opinion of the Committee on the Agricultural Funds, the Common Agricultural Policy Committee and the Committee for the Common Organisation of the Agricultural Markets,

(1)

Experience gained with the implementation of Commission Implementing Regulation (EU) 2015/1998 (2) has shown the need for minor amendments to the implementing modalities of certain common basic standards.

(2)

Certain detailed aviation security measures should be clarified, harmonised or simplified in order to improve legal clarity, standardise the common interpretation of the legislation and further ensure the best implementation of the common basic standards on aviation security. Furthermore, certain amendments have become necessary in accordance with the evolution of the threat and risk picture, recent developments in terms of airport and airline operations, technology and international policy. Those amendments regard to airport security, safe and secure carriage of firearms on board, training of personnel, air cargo and mail security, known suppliers of airport supplies, background check, explosive detection dogs (EDD), and detection standards for walk-through metal detection equipment (WTMD).

(3)

Implementing Regulation (EU) 2015/1998 should therefore be amended accordingly.

(4)

As a reasonable period is necessary to allow flight and cabin crew members implementing in-flight security measures to undergo the training established in point (38) of the Annex to this Regulation, the application of this point should be deferred to 1 January 2023.

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 19 of Regulation (EC) No 300/2008,

(1)

On 4 May 2018, the Commission (‘the Commission’) adopted Regulation (EU) 2018/683 (3) imposing a provisional anti-dumping duty on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China (‘the provisional Regulation’).

(2)

On 18 October 2018, the Commission adopted Implementing Regulation (EU) 2018/1579 (4) imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries, with a load index exceeding 121 originating in the People’s Republic of China.

(3)

On 9 November 2018, the Commission adopted Implementing Regulation (EU) 2018/1690 (5) imposing definitive countervailing duties on imports of certain pneumatic tyres, new or retreaded, of rubber, of a kind used for buses or lorries and with a load index exceeding 121 originating in the People’s Republic of China and amending Implementing Regulation (EU) 2018/1579.

(4)

China Rubber Industry Association (CRIA) and China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (‘CCCMC’) brought annulment actions before the General Court challenging the legality of the regulations at issue.

(5)

CRIA and CCCMC raised several claims challenging the regulations at issue and the General Court ruled on two of those: (i) the Commission’s failure to carry out a fair price comparison in the calculation of the price undercutting and of the injury margins, and (ii) certain complaints alleging, in essence, inconsistencies and breach of the rights of the defence regarding injury indicators and the weighting of data from the sample of Union producers.

(6)

On 4 May 2022, the General Court issued its judgment in cases T-30/19 and T-72/19, annulling both Implementing Regulation (EU) 2018/1579 (anti-dumping) and Implementing Regulation (EU) 2018/1690 (anti-subsidy).

(7)

Regarding the calculation of the undercutting margins, the General Court found that the Commission conducted an unfair comparison when it made an adjustment to the export price – the deduction of the related importer’s SG&A and a notional profit – when sales were made through a related trader in the Union. The Court noted that Union producers also made some sales via related entities, and their sales prices were not adjusted. The General Court concluded that the calculation of the price undercutting margins carried out by the Commission in the contested regulations was vitiated by an error of law and a manifest error of assessment and that, as a result, that calculation infringed Article 3(2) and (3) of the basic anti-dumping Regulation and Article 8(1) and (2) of the basic anti-subsidy Regulation. Furthermore, the General Court found that the errors had an impact on the overall injury and causality findings as well as on the injury margins, and that it was not possible to determine precisely to what extent the definitive anti-dumping and countervailing duties at issue remained well founded in part. Therefore, the regulations imposing those duties upon the applicants were annulled.

(8)

In relation to the second point, the General Court found that the Commission did not carry out an objective examination (as required by Article 3(2) of the basic anti-dumping regulation and Article 8(1) of the basic anti-subsidy regulation) because, by not revising the calculations of all microeconomic indicators other than profitability, and not setting out the revised figures in the contested regulation, the Commission did not use all relevant data available to it. In addition, the General Court found a breach of the applicants’ right of defence. In particular, the General Court disagreed that some information not disclosed to parties could be considered confidential, and it found that all the data at issue was ‘linked to findings of fact in the contested regulation’. Therefore, they were ‘essential facts and considerations’ that should have been disclosed to parties.

(9)

In light of the above, the General Court annulled the anti-dumping regulation at issue insofar as the companies represented by CRIA and CCCMC (listed in Annex I) were concerned.

(10)

In addition, the General Court annulled the anti-subsidy regulation at issue insofar as the companies represented by CRIA and CCCMC (listed in Annex II) were concerned.

(11)

The Commission analysed whether it is appropriate to make the imports of the product concerned subject to registration. In that context, the Commission took the following considerations into account.

(12)

Article 266 TFEU provides that the Institutions must take the necessary measures to comply with the Courts’ judgments. In case of annulment of an act adopted by the Institutions in the context of an administrative procedure, such as anti-dumping or anti-subsidy investigations, compliance with the General Court’s judgment consists in the replacement of the annulled act by a new act, in which the illegality identified by the Court is eliminated (6).

(13)

According to the case-law of the Court of Justice, the procedure for replacing the annulled act may be resumed at the very point at which the illegality occurred (7). That implies in particular that in a situation where an act concluding an administrative procedure is annulled, that annulment does not necessarily affect the preparatory acts, such as the initiation of the anti-dumping procedure. In a situation where for instance a Regulation imposing definitive anti-dumping measures is annulled, that means that subsequent to the annulment, the anti-dumping proceeding is still open, because the act concluding the anti-dumping proceeding has disappeared from the Union legal order (8), except if the illegality occurred at the stage of initiation.

(14)

As explained in the re-opening Notice, and since the illegality did not occur at the stage of initiation but at the stage of the investigation, the Commission decided to re-open the anti-dumping and anti-subsidy investigations in so far as they concern the companies listed in Section 1.2 above, and resumed them at the point at which the irregularity occurred.

(15)

According to the case-law of the Court of Justice, the resumption of the administrative procedure and the eventual re-imposition of duties cannot be seen as contrary to the rule of non-retroactivity (9). The re-opening Notice informed interested parties, including importers, that any future liability, if warranted, would emanate from the findings of the re-examination.

(16)

Based on its new findings and the outcome of the re-opened investigations, which is unknown at this stage, the Commission may adopt regulations revising, where warranted, the applicable duty rates. Those revised rates, if any, will take effect as from the date on which the regulations at issue entered into force.

(17)

For this purpose, the Commission requested national customs authorities to await the outcome of the re-examination before deciding on any repayment claim concerning the anti-dumping and/or countervailing duties annulled by the General Court. Customs authorities are thus directed to put on hold any claims for reimbursements of the annulled duties until the outcome of the re-examination is published in the Official Journal of the European Union.

(18)

Furthermore, should the re-opening investigations lead to the re-imposition of measures, duties should also be collected for the period during which the re-opening investigations are carried out.

(19)

In this respect, the Commission notes that registration is a tool provided in Articles 14(5) of the basic anti-dumping Regulation and Article 24(5) of the basic anti-subsidy Regulation so that measures may subsequently be applied against imports from the date of the registration (10). In the present case, the Commission deems it appropriate to register imports concerning the companies listed in Section 1.2 above with a view to facilitating the collection of anti-dumping and countervailing duties once their levels are revised in line with the General Court ruling (11).

(20)

In line with the jurisprudence of the Court of Justice (12), contrary to registration taking place during the period before the adoption of provisional measures, the conditions of Article 10(4) of the basic anti-dumping Regulation and Article 16(4) of the basic anti-subsidy Regulation are not applicable to the case at hand. Indeed, the purpose of registration in the context of Court implementation is not to allow the possible retroactive collection of trade defence measures as envisaged in those provisions. The purpose is rather to safeguard the effectiveness of the measures in place, without undue interruption from the date of entry into force of the regulations at issue until the re-imposition of the corrected duties, by ensuring that the collection of measures in the correct amount is possible in the future.

(21)

In light of the above considerations, the Commission considered that there were grounds for registration pursuant to Article 14(5) of the basic anti-dumping Regulation and Article 24(5) of the basic anti-subsidy Regulation.

(22)

On the basis of the above, imports of the product concerned produced by the companies listed in Section 1.2 above must be made subject to registration (13).

(23)

As indicated in the re-opening Notice, the final liability for payment of anti-dumping and countervailing duties, if any, from the date of entry into force of the anti-dumping and anti-subsidy Regulations at issue will emanate from the findings of the re-examination.

(24)

No duties higher than the duties established in the Regulations at issue may be collected for the period between the publication of the notice of re-opening and the date of entry into force of the results of the re-opening investigations,

(1)

The substances 2-Hydroxy-4-methoxybenzophenone/Oxybenzone (CAS no 131-57-7), which has been assigned the name Benzophenone-3 under the International Nomenclature of Cosmetic Ingredients (INCI), and 2-Cyano-3,3-diphenyl acrylic acid, 2-ethylhexyl ester/Octocrylene (CAS no 6197-30-4), which has been assigned the name Octocrylene under the INCI, are currently allowed as UV filters in cosmetic products and listed in entries 4 and 10, respectively, of Annex VI to Regulation (EC) No 1223/2009.

(2)

In light of concerns related to potential endocrine disrupting properties of Benzophenone-3 and Octocrylene, when used as UV filters in cosmetic products, a call for data was launched in 2019. Stakeholders submitted scientific evidence to demonstrate the safety of Benzophenone-3 and Octocrylene as UV filters in cosmetic products. The Commission requested the Scientific Committee for Consumer Safety (SCCS) to carry out a safety assessment of both substances in view of the information provided.

(3)

Based on the safety assessment and considering the concerns related to potential endocrine disrupting properties of Benzophenone-3, the SCCS concluded in its opinion of 30-31 March 2021 (2) that Benzophenone-3 is not safe for the consumer when used as a UV filter up to the current maximum concentration of 6 % in sunscreen products, either in the form of body cream, sunscreen propellant spray or pump spray.

(4)

The SCCS further concluded that Benzophenone-3 is safe for the consumer when used as a UV filter up to a maximum concentration of 6 % in face cream, hand cream, and lipsticks, and that the use of Benzophenone-3 up to 0,5 % in cosmetic products to protect the cosmetic formulation is safe for the consumer.

(5)

The SCCS also found that the use of Benzophenone-3 as a UV filter is safe for the consumer up to a maximum concentration of 2,2 % in body creams, in propellant sprays and in pump sprays, if there is no additional use of Benzophenone-3 at 0,5 % in the same formulation for protecting the cosmetic formulation. It further concluded that, where Benzophenone-3 is also used at 0,5 % in the same formulation, the levels of Benzophenone-3 used as a UV filter should not exceed 1,7 % in body creams, in propellant sprays and in pump sprays.

(6)

With regard to the substance Octocrylene, the SCCS concluded, based on the safety assessment and considering the concerns related to its potential endocrine disrupting properties, in its opinion of 30-31 March 2021 (3) that Octocrylene is safe as a UV-filter at concentrations up to 10 % in cosmetic products when used individually.

(7)

The SCCS also found that the use of Octocrylene is safe for a combined use of sunscreen cream or lotion, sunscreen pump spray, face cream, hand cream and lipstick at a concentration up to 10 %, but that the use of Octocrylene at concentrations of 10 % or above in sunscreen propellant spray is not safe for the combined use. The SCCS considered the use of Octocrylene in such products safe when its concentration does not exceed 9 %, when used together with face cream, hand cream, or lipstick containing 10 % Octocrylene.

(8)

In light of the SCCS opinions, it can be concluded that there is potential risk to human health arising from the use of Benzophenone-3 and Octocrylene as UV filters in cosmetic products in the concentrations currently allowed. Therefore, the use of Benzophenone-3 and Octocrylene should be restricted to the maximum concentrations proposed by the SCCS.

(9)

Regulation (EC) No 1223/2009 should therefore be amended accordingly.

(10)

The industry should be allowed reasonable periods of time to adapt to the new requirements, including by making the necessary adjustments to product formulations in order to ensure that only cosmetic products complying with the new requirements are placed on the market. The industry should also be allowed a reasonable period of time to withdraw cosmetic products which do not comply with those requirements.

(11)

The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Cosmetic Products,

(1)

Commission Implementing Regulation (EU) 2020/683 (2) provides for a standardised format of the documents used for the type-approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles by laying down the templates for the information document, the EU individual vehicle approval certificates and the certificates of conformity in paper format.

(2)

The templates for the information documents, contained in Annexes I and II to Implementing Regulation (EU) 2020/683, should be modified to take into account the new requirements introduced by Regulation (EU) 2019/2144 of the European Parliament and of the Council (3) and the regulatory acts adopted pursuant to it.

(3)

To allow for a consistent approach with regard to the numbering of the approval certificates, it is further necessary to amend the numbering system set out in Annex IV to Implementing Regulation (EU) 2020/683 to reflect the regulatory development under Regulation (EU) 2019/2144.

(4)

It is also appropriate to amend Annex V to Implementing Regulation (EU) 2020/683 setting out the model for the EU type-approval mark for components and separate technical units by updating the reference to Regulation (EU) 2019/2144.

(5)

Regulation (EU) 2019/2144 requires new vehicles to be equipped with advanced safety systems, including the emergency lane-keeping assistance, intelligent speed assistance, driver drowsiness and attention warning systems, and the event data recorder. It is appropriate to require that the certificate of conformity indicates which systems are fitted in the vehicle. It is therefore necessary to add the relevant entries to the templates for the certificate of conformity in paper format set out in Annex VIII to Implementing Regulation (EU) 2020/683.

(6)

Implementing Regulation (EU) 2020/683 should therefore be amended accordingly.

(7)

In order to provide approval authorities, market surveillance authorities and registration authorities of the Member States, and the manufacturers with sufficient time to implement the amendments to the certificate of conformity in paper format in their respective systems, the date of application of Annex V should be deferred.

(8)

The measures provided for in this Regulation are in accordance with the opinion of the Technical Committee – Motor Vehicles,