5.5.2009   

EN

Official Journal of the European Union

L 111/1

5.5.2009   

EN

Official Journal of the European Union

L 111/3

(1)

The representative prices and additional duties applicable to imports of white sugar, raw sugar and certain syrups for the 2008/2009 marketing year are fixed by Commission Regulation (EC) No 945/2008 (3). These prices and duties have been last amended by Commission Regulation (EC) No 348/2009 (4).

(2)

The data currently available to the Commission indicate that those amounts should be amended in accordance with the rules and procedures laid down in Regulation (EC) No 951/2006,

5.5.2009   

EN

Official Journal of the European Union

L 111/5

(1)

Regulation (EC) No 1698/2005, which establishes the legal framework for the EAFRD support for rural development throughout the Community, has been amended by Council Regulation (EC) No 74/2009 of 19 January 2009 amending Regulation (EC) No 1698/2005 on support for rural development by the European Agricultural Fund for Rural Development (EAFRD) (2). Consequently, Commission Regulation (EC) No 1974/2006 (3) should be complemented by additional detailed implementing rules.

(2)

The expiry of the dairy quota regime under Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common market organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (4) requires specific efforts from dairy farmers. Therefore, it is appropriate to withdraw, with effect from the beginning of the programming period, the limitation of investment support for dairy farms to stay within the limits of the production quotas allocated to the individual farm.

(3)

Regulation (EC) No 74/2009 introduced the requirement of revision of the national strategy plans. The minimum content of this revision should be defined.

(4)

Because of the importance of the priorities laid down in Article 16a of Regulation (EC) No 1698/2005, the revisions of the rural development programmes following the first implementation of that Article should be considered as revisions under Article 19(1) of Regulation (EC) No 1698/2005 and be made subject to a Commission decision.

(5)

Regulation (EC) No 74/2009 has identified a list of potential effects which the operations linked to the priorities referred to in Article 16a of Regulation (EC) No 1698/2005 are aimed to achieve. This list not being exhaustive, additional potential effects can be proposed by Member States, which the abovementioned operations are aimed to achieve. However, in order to ensure consistency with the potential effects already identified and with the general purpose of strengthening the operations related to the new challenges, the option for Member States to propose such additional potential effects should be subject to review by the Commission and to the opinion of the Rural Development Committee. Therefore, modifications introducing a new potential effect should be subject to a Commission decision.

(6)

Given the high number of cases in which revisions concern an exception of lower importance from demarcation principles between common market organisations and rural development and in order to limit the administrative burden, the Commission should no longer adopt decisions on revisions concerning changes relating to the exception referred to in Article 5(6) of Regulation (EC) No 1698/2005. Accordingly, such a category of revision should be deleted from the list of Article 7 of Regulation (EC) No 1974/2006.

(7)

Content and criteria of the business plans concerning support for holdings undergoing restructuring due to a reform of a common market organisation should be specified.

(8)

Following the abolition of the ‘set-aside measure’ pursuant to Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (5), provisions referring to this measure have to be adapted.

(9)

In order to ease the realisation of investment projects in the context of the ongoing economic and financial crisis, the maximum ceiling for advance payments should be raised in 2009 and 2010.

(10)

It is appropriate to adapt the provisions on State aid for certain co-financed measures by the EAFRD and for additional national financing in order to clarify their scope of application and to take into account the new measure on holdings undergoing restructuring due to a reform of a common market organisation introduced by Regulation (EC) No 74/2009.

(11)

There is a need to define the term ‘substantial changes’ in Article 78(f) of Regulation (EC) No 1698/2005.

(12)

In order to allow monitoring of the actions related to the priorities laid down in Article 16a of Regulation (EC) No 1698/2005, output indicators, and related targets, making part of the Common Monitoring and Evaluation Framework referred to in Article 80 of that Regulation should be specified by type of operations.

(13)

Member States have to provide in their revised programmes information on the types of operations related to the priorities mentioned in Article 16a of Regulation (EC) No 1698/2005 indicating which of these operations are based on new measures, i.e. measures which have not been approved with the rural development programme yet. Additionally, the indicative EAFRD contribution for 2010-2013 has to be shown. For this purpose the Annexes to Regulation (EC) No 1974/2006 should be amended.

(14)

In order to be consistent with the date of application of Regulation (EC) No 74/2009, to which the provisions of this Regulation are complementary, this Regulation should apply as of 1 January 2009. Such retroactive application should not infringe the principle of legal certainty of the beneficiaries concerned.

(15)

Regulation (EC) No 1974/2006 should therefore be amended accordingly.

(16)

The measures provided for in this Regulation are in accordance with the opinion of the Rural Development Committee,

1.

in Article 2, paragraph 3 is replaced by the following:

‘3.   With the exception of the dairy sector, where a common market organisation, including direct support schemes financed by the European Agricultural Guarantee Fund (EAGF) places restrictions on production or limitations on Community support at the level of individual farmers, holdings or processing plants, no investment shall be supported under Regulation (EC) No 1698/2005 which would increase production beyond those restrictions or limitations.’;

2.

the following Article 3a is inserted:

‘Article 3a

Revisions of national strategy plans in accordance with Article 12a of Regulation (EC) No 1698/2005 shall include a revision of the relevant elements set out in Article 11(3) of that Regulation which are related to the priorities foreseen in Article 16a(1) of that Regulation, and, in particular, of the main quantified objectives.

The National Strategy shall identify the approximate and indicative EAFRD contribution referred to in Article 69(5a) of Regulation (EC) No 1698/2005 allocated to each of the priorities referred to in Article 16a(1) of that Regulation in the Member State and shall contain the appropriate explanations related to the allocation.’;

3.

in Article 5, paragraph 1, the first subparagraph is replaced by the following:

‘The content of rural development programmes as referred to in Articles 16 and 16a of Regulation (EC) No 1698/2005 shall be established in accordance with Annex II to this Regulation.’;

4.

in Article 7, paragraph 1 is amended as follows:

5.

in Article 9, paragraph 1 is replaced by the following:

‘1.   Changes in programmes by Member States as referred to in Article 6(1)(c) may involve changes of financial breakdowns by measure within an axis as well as non-financial changes concerning the introduction of new measures and types of operations, the withdrawal of existing measures and types of operations, the changes relating to the exception referred to in Article 5(6) of Regulation (EC) No 1698/2005 or information on and description of existing measures in the programme.’;

6.

the following Article 24a is inserted:

‘Article 24a

The business plan referred to in Article 35a of Regulation (EC) No 1698/2005 shall:

7.

in Article 27(6) the first subparagraph is deleted;

8.

in Article 46, the following paragraph is added:

‘This Article shall also apply to the commitments concerned by the abolition of the set-aside following the entering into force of Regulation (EC) No 73/2009. On request of the beneficiary, adjustments of such commitments can be allowed also in case no revision clause is provided.’;

9.

in the first subparagraph of Article 56(2), the following sentence is added:

‘In the case of investments for which the individual decision to grant support is taken in 2009 or in 2010, the amount of the advances may be increased up to 50 % of the public aid related to that investment.’;

10.

in Article 57, paragraph 2 is replaced by the following:

‘2.   Rural development programmes may cover payments made by Member States for rural development, falling outside the scope of Article 36 of the Treaty, in favour of measures pursuant to Articles 25, 43 to 49 and 52 of Regulation (EC) No 1698/2005 and of operations under measures pursuant to Articles 21, 24, 28, 29, 30 and 35a of that Regulation or additional national funding, falling outside the scope of Article 36 of the Treaty, in favour of the measures pursuant to Articles 25, 27, 43 to 49 and 52 of Regulation (EC) No 1698/2005 and of operations under measures pursuant to Articles 21, 24, 28, 29, 30 and 35a of that Regulation only if the State aid is identified in accordance with point 9.B of Annex II to this Regulation.’;

11.

in Section 4 ‘Monitoring and Evaluation’, the following Article 59a is inserted:

‘Article 59a

For the purposes of Article 78, point (f) of Regulation (EC) No 1698/2005, “substantial proposals for changes” shall include the changes for which a decision of the Commission is compulsory and changes referred to in Article 9(1) of this Regulation except the changes relating to the exception referred to in Article 5(6) of Regulation (EC) No 1698/2005 and the information on and description of existing measures in the programme.’;

12.

in Article 62, paragraph 1, the following subparagraph is added:

‘For measures containing types of operations as specified under Article 16a of Regulation (EC) No 1698/2005 output indicators and indicative targets for output indicators shall be broken down by types of operations.’;

13.

in Article 63, paragraph 8, the first subparagraph is replaced by the following:

‘In cases of force majeure or exceptional circumstances, and in particular of malfunctioning of the system or a lack of a lasting connection, the Member State may submit the documents to the Commission in hard copy or by other appropriate electronic means. Such submission of hard copies or by other electronic means shall require prior notice to the Commission.’;

14.

Annexes I, II, VII and VIII are amended in accordance with the Annex to this Regulation.

5.5.2009   

EN

Official Journal of the European Union

L 111/13

(1)

The import duties in the cereals sector applicable from 1 May 2009 were fixed by Commission Regulation (EC) No 360/2009 (3).

(2)

As the average of the import duties calculated differs by more than EUR 5/tonne from that fixed, a corresponding adjustment must be made to the import duties fixed by Regulation (EC) No 360/2009.

(3)

Regulation (EC) No 360/2009 should therefore be amended accordingly,

5.5.2009   

EN

Official Journal of the European Union

L 111/16

(1)

The content of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (3) has been amended (4). In the interests of clarity and rationality the said Directive should be codified.

(2)

The development of computer programs requires the investment of considerable human, technical and financial resources while computer programs can be copied at a fraction of the cost needed to develop them independently.

(3)

Computer programs are playing an increasingly important role in a broad range of industries and computer program technology can accordingly be considered as being of fundamental importance for the Community's industrial development.

(4)

Certain differences in the legal protection of computer programs offered by the laws of the Member States have direct and negative effects on the functioning of the internal market as regards computer programs.

(5)

Existing differences having such effects need to be removed and new ones prevented from arising, while differences not adversely affecting the functioning of the internal market to a substantial degree need not be removed or prevented from arising.

(6)

The Community's legal framework on the protection of computer programs can accordingly in the first instance be limited to establishing that Member States should accord protection to computer programs under copyright law as literary works and, further, to establishing who and what should be protected, the exclusive rights on which protected persons should be able to rely in order to authorise or prohibit certain acts and for how long the protection should apply.

(7)

For the purpose of this Directive, the term ‘computer program’ shall include programs in any form, including those which are incorporated into hardware. This term also includes preparatory design work leading to the development of a computer program provided that the nature of the preparatory work is such that a computer program can result from it at a later stage.

(8)

In respect of the criteria to be applied in determining whether or not a computer program is an original work, no tests as to the qualitative or aesthetic merits of the program should be applied.

(9)

The Community is fully committed to the promotion of international standardisation.

(10)

The function of a computer program is to communicate and work together with other components of a computer system and with users and, for this purpose, a logical and, where appropriate, physical interconnection and interaction is required to permit all elements of software and hardware to work with other software and hardware and with users in all the ways in which they are intended to function. The parts of the program which provide for such interconnection and interaction between elements of software and hardware are generally known as ‘interfaces’. This functional interconnection and interaction is generally known as ‘interoperability’; such interoperability can be defined as the ability to exchange information and mutually to use the information which has been exchanged.

(11)

For the avoidance of doubt, it has to be made clear that only the expression of a computer program is protected and that ideas and principles which underlie any element of a program, including those which underlie its interfaces, are not protected by copyright under this Directive. In accordance with this principle of copyright, to the extent that logic, algorithms and programming languages comprise ideas and principles, those ideas and principles are not protected under this Directive. In accordance with the legislation and case-law of the Member States and the international copyright conventions, the expression of those ideas and principles is to be protected by copyright.

(12)

For the purposes of this Directive, the term ‘rental’ means the making available for use, for a limited period of time and for profit-making purposes, of a computer program or a copy thereof. This term does not include public lending, which, accordingly, remains outside the scope of this Directive.

(13)

The exclusive rights of the author to prevent the unauthorised reproduction of his work should be subject to a limited exception in the case of a computer program to allow the reproduction technically necessary for the use of that program by the lawful acquirer. This means that the acts of loading and running necessary for the use of a copy of a program which has been lawfully acquired, and the act of correction of its errors, may not be prohibited by contract. In the absence of specific contractual provisions, including when a copy of the program has been sold, any other act necessary for the use of the copy of a program may be performed in accordance with its intended purpose by a lawful acquirer of that copy.

(14)

A person having a right to use a computer program should not be prevented from performing acts necessary to observe, study or test the functioning of the program, provided that those acts do not infringe the copyright in the program.

(15)

The unauthorised reproduction, translation, adaptation or transformation of the form of the code in which a copy of a computer program has been made available constitutes an infringement of the exclusive rights of the author. Nevertheless, circumstances may exist when such a reproduction of the code and translation of its form are indispensable to obtain the necessary information to achieve the interoperability of an independently created program with other programs. It has therefore to be considered that, in these limited circumstances only, performance of the acts of reproduction and translation by or on behalf of a person having a right to use a copy of the program is legitimate and compatible with fair practice and must therefore be deemed not to require the authorisation of the rightholder. An objective of this exception is to make it possible to connect all components of a computer system, including those of different manufacturers, so that they can work together. Such an exception to the author's exclusive rights may not be used in a way which prejudices the legitimate interests of the rightholder or which conflicts with a normal exploitation of the program.

(16)

Protection of computer programs under copyright laws should be without prejudice to the application, in appropriate cases, of other forms of protection. However, any contractual provisions contrary to the provisions of this Directive laid down in respect of decompilation or to the exceptions provided for by this Directive with regard to the making of a back-up copy or to observation, study or testing of the functioning of a program should be null and void.

(17)

The provisions of this Directive are without prejudice to the application of the competition rules under Articles 81 and 82 of the Treaty if a dominant supplier refuses to make information available which is necessary for interoperability as defined in this Directive.

(18)

The provisions of this Directive should be without prejudice to specific requirements of Community law already enacted in respect of the publication of interfaces in the telecommunications sector or Council Decisions relating to standardisation in the field of information technology and telecommunication.

(19)

This Directive does not affect derogations provided for under national legislation in accordance with the Berne Convention on points not covered by this Directive.

(20)

This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives set out in Annex I, Part B,

(a)

the permanent or temporary reproduction of a computer program by any means and in any form, in part or in whole; in so far as loading, displaying, running, transmission or storage of the computer program necessitate such reproduction, such acts shall be subject to authorisation by the rightholder;

(b)

the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program;

(c)

any form of distribution to the public, including the rental, of the original computer program or of copies thereof.

(a)

those acts are performed by the licensee or by another person having a right to use a copy of a program, or on their behalf by a person authorised to do so;

(b)

the information necessary to achieve interoperability has not previously been readily available to the persons referred to in point (a); and

(c)

those acts are confined to the parts of the original program which are necessary in order to achieve interoperability.

(a)

to be used for goals other than to achieve the interoperability of the independently created computer program;

(b)

to be given to others, except when necessary for the interoperability of the independently created computer program; or

(c)

to be used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright.

(a)

any act of putting into circulation a copy of a computer program knowing, or having reason to believe, that it is an infringing copy;

(b)

the possession, for commercial purposes, of a copy of a computer program knowing, or having reason to believe, that it is an infringing copy;

(c)

any act of putting into circulation, or the possession for commercial purposes of, any means the sole intended purpose of which is to facilitate the unauthorised removal or circumvention of any technical device which may have been applied to protect a computer program.

5.5.2009   

EN

Official Journal of the European Union

L 111/23

(1)

By letter dated 30 May 2006, received by the Commission on the same day, the German authorities notified the Commission under Article 88(3) of the EC Treaty of the first part of the measure, which the Commission registered as State aid case N 339/06.

(2)

By letter dated 22 June 2006, the Commission requested additional information. The German authorities replied by letter dated 13 July 2006. The Commission requested supplementary information by letter dated 31 August 2006 and the German authorities replied by letter dated 22 September 2006. The Commission asked for further information on 11 October 2006 and the German authorities replied by letter dated 6 November 2006.

(3)

By letter dated 9 November 2006, received by the Commission on the same day, the German authorities notified the second part of the measure, which the Commission registered as State aid case N 729/06. Owing to the overlap between the two notifications (N 339/06 and N 729/06), in a letter dated 6 December 2006 the Commission proposed to merge the cases and treat all correspondence as being relating to both, and also asked for additional information relating to both cases. The German authorities replied by letter dated 23 January 2007.

(4)

The Commission requested further information on 28 February 2007. Following an extension of the deadline, the German authorities replied by letter dated 11 April 2007. The Commission requested additional information on 4 May 2007. Following an extension of the deadline, the German authorities replied by letter dated 29 June 2007.

(5)

By letter dated 30 August 2007, the Commission informed Germany that it had decided to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the aid (hereinafter the opening decision). The opening decision was published in the Official Journal of the European Union  (2). The Commission called on the German authorities and interested parties to submit their comments.

(6)

The German authorities submitted comments on the opening decision by letter dated 19 October 2007. Following an extension of the deadline, the Commission received observations from an interested party, namely IBG Beteiligungsgesellschaft Sachsen-Anhalt mbH (hereinafter the IBG Fund) by letter dated 10 December 2007. By letter dated 21 January 2008, the Commission forwarded these observations to the German authorities. In response to the observations, the German authorities replied by letter dated 14 February 2008.

(7)

The Commission requested further information by letter dated 18 April 2008 and by e-mails dated 28 April 2008 and 11 June 2008. The German authorities submitted additional information by letter dated 5 June 2008 and e-mail dated 13 June 2008.

(8)

The IBG Fund is a public venture capital fund, established and funded by the Land of Saxony-Anhalt. The objective of the IBG Fund is to provide risk capital to technology-oriented innovative SMEs in Saxony-Anhalt in their early and growth stages of development. Saxony-Anhalt is a region eligible for assistance under Article 87(3)(a) EC Treaty (3).

(9)

Since 1 July 2007, the IBG Fund has been managed by the management company Goodvent Beteiligungsmanagement GmbH & Co. KG (hereinafter the Fund manager), selected in an open and non-discriminatory public tender procedure. The total size of the public funding is approximately EUR 130 million. The measure is applicable until 31 December 2013.

(10)

The IBG Fund provides the following investments:

(11)

In respect of the ordinary equity holdings and the conversion measures, the Commission concluded in the opening decision that there was no State aid within the meaning of Article 87(1) of the EC Treaty either to the investors (4) or to the IBG Fund management (5). There might be State aid within the meaning of Article 87(1) of the EC Treaty to the IBG Fund (6) or to the target enterprises. However, the Commission found the measure to be in line with the Community guidelines on State aid to promote risk capital investments in small and medium-sized enterprises (7) (hereinafter the guidelines) and compatible with the common market under Article 87(3)(c) of the EC Treaty.

(12)

In the opening decision, the IBG Fund silent participations were assessed separately, because the German authorities considered them to be debt instruments in line with market conditions, which thus did not constitute State aid within the meaning of Article 87(1) of the EC Treaty, while the Commission had doubts as to whether in economic terms they should be classified as debt instruments or as equity instruments.

(13)

The Commission initiated the formal investigation procedure on the issue of whether the IBG Fund silent participations should, in economic terms, be classified as debt instruments, as claimed by the German authorities, or as equity instruments. If the IBG Fund silent participations did qualify as debt instruments, the Commission notice on the method for setting the reference and discount rates (8) (hereinafter the 1997 notice), which is to be used as an indicator of the market rate, would have to be applied to determine whether they entailed State aid to the target enterprises within the meaning of Article 87(1) of the EC Treaty (9).

(14)

In its opening decision, the Commission considered that, if the IBG Fund silent participations were classifiable as debt instruments, they would not constitute an advantage to the recipient companies within the meaning of Article 87(1) of the EC Treaty as they would be in line with market conditions according to the 1997 notice. On the other hand, if the IBG Fund silent participations were classifiable as equity, State aid to the target enterprises could not be ruled out, as the measure might be addressing a market failure in the venture capital market.

(15)

To establish whether the IBG Fund silent participations should be classified as debt instruments or equity instruments, the opening decision examined the economic substance of the instruments in line with point 4.3.3 of the guidelines, taking into account the degree of risk and potential losses borne by the investor, whether profit-dependant remuneration or fixed remuneration was predominant, the level of subordination in the event of bankruptcy and the treatment of the investment instrument under the applicable domestic legal, regulatory, financial, and accounting rules.

(16)

Having examined the economic nature of the IBG Fund silent participations, the Commission identified the following possible differences between standard debt instruments and the IBG Fund silent participations:

(a)   Subordination: In the case of bankruptcy of a target enterprise, the IBG Fund silent participations are senior to equity but subordinated to loans and other liabilities.

(b)   Security: The IBG Fund silent participations are partly secured (minimum 10 %), although this security is far from the level which would be required for debt financing.

(c)   Repayment: The IBG Fund silent participations are repaid twice a year, while on standard debt instruments the principal and the interest are normally repaid on a monthly basis.

(d)   Information and control rights: There appeared to be differences between the IBG Fund silent participations and standard debt instruments in terms of information and control rights, although ownership and change-of-control clauses are sometimes included in standard credit contracts.

(e)   Termination of contract: There appeared to be differences between the IBG Fund silent participations and standard debt instruments as concerns the termination of contracts.

(f)   Remuneration: In view of the profit-linked one-off exit remuneration (Exitvergütung) component, it could not be established with 100 % certainty that the fixed remuneration was the predominant remuneration component.

(17)

The Commission therefore had doubts as to whether the IBG Fund silent participations should be classified as debt instruments, and asked interested parties to provide comments on these points.

(18)

Pursuant to Article 20(2) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (10) and in response to the notice published in the Official Journal (11), the Commission received comments from one interested party, namely the IBG Fund, which provided detailed arguments to demonstrate that the IBG Fund silent participations should be classified as debt instruments.

(19)

The IBG Fund explained the subordinated status of the silent participations. It said that subordination is agreed on a voluntary basis and is not legally required. It is not unusual to place debt instruments in different rankings. In the field of acquisition financing for example, it is virtually always the case that debts are grouped into senior debts and junior debts. In its comments, the IBG Fund emphasised that while the silent participations may be subordinated to other loans and liabilities, they are always senior to equity and never participate in the losses of the target enterprises.

(20)

The IBG Fund explained that between 10 % and 30 % of the value of the silent participations is secured by guarantees given by the shareholders of the target enterprises. The precise amount of collateral depends on the individual case, and in particular on the assets the shareholders have previously transferred to the enterprise, e.g. in the form of equity or intellectual property rights. According to the IBG Fund, debt instruments can take different forms, depending on the individual case. In practice, there is even 0 % collateral, and the loan is unsecured; and this does not automatically turn a debt instrument into an equity instrument.

(21)

According to the IBG Fund, the repayment procedures for its silent participations are similar to those of debt instruments. In the case of standard loans, depending on a company’s liquidity position, the principal and interest are not necessarily (re)paid on a monthly basis. Repayments on a six-monthly or three-monthly basis are just as common as monthly payments. The German Civil Code provides for an interest payment at the end of each year, but other arrangements can be agreed.

(22)

As regards the repayment of the principal, the IBG Fund points out that the German Civil Code stipulates that the principal becomes due when the loan contract is terminated unless the contract provides otherwise. According to the IBG Fund, its silent participations are compatible with the provisions of the German Civil Code without the need for any contractual provision departing from the general rule.

(23)

The IBG Fund presents further arguments to demonstrate similarities between the information and ownership and change-of-control clauses of the IBG Fund silent participations and those of debt instruments. According to the IBG Fund, it is usual to agree on ownership and change-of-control clauses for debt instruments. Creditors insist on them particularly in the case of commercial loans and project and acquisition financing. These types of credit have in common with the IBG Fund silent participations that they are often long-term loans which become repayable only upon their termination. In return, the creditors request extensive covenants which entitle them to terminate the credit contract earlier in the case of breach of the covenant by the debtor.

(24)

As regards commercial loans, the umbrella organisation of German private banks, the Bundesverband Deutscher Banken, has designed a special model contract which contains an extensive ownership and change-of-control clause. As regards project and acquisition financing, the IBG Fund refers to several relevant German commentaries which discuss and acknowledge extensive control clauses for the benefit of the creditor.

(25)

The IBG Fund provides further arguments to demonstrate similarities between its silent participations and loans as regards the conditions for terminating the contract. In the case of breach of contract, non-compliance with agreed conditions, incorrect information or change of control, both the target enterprise and the IBG Fund are entitled to terminate the contract. Where the specific contract termination terminology of the IBG Fund silent participations is different from that for standard loans, it only reflects the specific nature of the instrument as compared to a standard loan.

(26)

The IBG Fund explains the remuneration structure of its silent participations, in order to demonstrate that fixed remuneration is the dominant component of the total annual remuneration of 13 %. The total remuneration is composed of the fixed interest rate component, determined on the basis of the credit-risk rating of each target enterprise and payable irrespective of the profitability of the investment, and the profit-linked component, payable if certain profitability benchmarks are exceeded. According to the IBG Fund, the profit-linked component is always at least 250 basis points lower than the fixed interest rate. A fixed one-off exit remuneration is paid in addition to the total 13 % annual remuneration. This is calculated as a percentage of the nominal amount of the silent participation and does not depend on the profitability of the investment.

(27)

The IBG Fund provides detailed information to demonstrate that under German law (civil law, accounting law and tax law) and international accounting rules (IFRS and IAS) its silent participations are considered to be typical silent participations and thus debt instruments.

(28)

Pursuant to Article 20(2) of Regulation (EC) No 659/1999 and in response to the notice published in the Official Journal (12), the Commission received comments from the German authorities. The German authorities argued that the IBG Fund silent participations are typical silent participations and thus should be classified as debt instruments, for the following reasons:

(29)

In their observations on the interested party’s comments, the German authorities expressed their agreement, and reiterated the conclusions presented in their own original comments on the opening decision. Moreover, the German authorities emphasised that the IBG Fund silent participations are granted on market terms and do not entail State aid as they are in compliance with the communication from the Commission on the revision of the method for setting the reference and discount rates (13) (hereinafter the 2008 communication).

(30)

In further correspondence with the Commission, the German authorities explained the IBG Fund credit rating system, which has been examined by Price Waterhouse Coopers and classifies the target enterprises between ‘very good’ (AAA) and ‘bad/financial difficulties’ (CCC)’; CCC companies are excluded from receiving financing. The low collateralisation and the ranking of the IBG Fund silent participations is taken into account when assessing the credit risk of the target enterprises.

(31)

The rating system provides the basis for establishing the risk-adjusted interest rates. The silent participations are always remunerated at a fixed interest rate composed of IBOR plus an appropriate margin. The latter can vary between 100 and 650 basis points, depending on the rating of the enterprise. In the case of target enterprises that can not be classified using the IBG Fund rating system, a margin of at least 400 basis points is applied, which can never be lower than the one which would be applicable to the parent company.

(32)

The German authorities have fulfilled their obligation under Article 88(3) of the EC Treaty by notifying the measure before its implementation. The measure’s entry into force is subject to the Commission’s approval.

(33)

To classify the IBG Fund silent participations as debt instruments or equity instruments in economic terms, they had to be assessed under the guidelines. Point 2.2 of the guidelines provides the following definitions of quasi-equity and debt investment instruments:

(34)

Point 4.3.3 of the guidelines stipulates that ‘the Commission will have regard to the economic substance of the instrument rather than to its name and the qualification attributed to it by the investors … [taking] into account the degree of risk in the target company’s venture borne by the investor, the potential losses borne by the investor, the predominance of profit-dependent remuneration versus fixed remuneration, and the level of subordination of the investor in the event of the company’s bankruptcy … [and] the treatment applicable to the investment instrument under the prevalent domestic legal, regulatory, financial, and accounting rules, if these are consistent and relevant for the qualification.’

(35)

After examination of the arguments from the German authorities and the information received from the interested party (the IBG Fund) in response to the opening decision, the following conclusions have been reached:

(36)

In line with the guidelines, the Commission assessed the degree of risk and potential losses borne by the IBG Fund. Account was taken of the fact that the IBG Fund silent participations, similarly to debt instruments, do not bear the full exit risk as do equity investors (14). The IBG Fund silent participations never participate in the losses of the target enterprises, as happens with equity investments; this criterion for distinguishing between equity and debt is explicitly mentioned in point 4.3.3 of the guidelines. Similarly to debt instruments, the contractual terms of the IBG Fund silent participations require the principal and interest, including the profit-linked component, to be repaid from the company’s cash flow. As regards the degree of risk and potential losses borne by the investor, the IBG Fund silent participations can therefore be classified as debt investment instruments.

(37)

In accordance with the guidelines, the level of subordination in the event of bankruptcy had to be considered. The IBG Fund silent participations are subordinated to loans and other liabilities, but are senior to equity and never participate in the losses of the target enterprises; this is a typical feature of debt instruments. Subordination of unsecured or partially secured debt to the claims of senior creditors is standard practice. While the subordinated IBG Fund silent participations are indeed more risky than unsubordinated debt, this is reflected in the risk-adjusted interest rate. For these reasons the subordination to other creditors does not in itself lead to classification of the IBG Fund silent participations as quasi-equity instruments.

(38)

The Guidelines require that a debt instrument, in order to qualify as such, must be at least partly secured. The fact that between 10 % and 30 % of the value of the IBG Fund silent participations is secured by guarantees given by the target enterprise shareholders must be taken into consideration. The low collateralisation requirements are largely explained by the fact that fast-growing technology SMEs do not have sufficient high-value collateral. Moreover, the partial security would seem to be adequate, considering the lower ranking of the IBG Fund silent participations. The subordinated and partially secured nature of the IBG Fund silent participations is appropriately reflected in the level of remuneration. It can therefore be concluded that the IBG Fund silent participations are partially secured, as required by the guidelines.

(39)

The Guidelines require that a debt instrument, in order to qualify as such, must have a predominant component of fixed remuneration. The profit-linked remuneration component of the IBG Fund silent participations is always at least 250 basis points lower than the fixed interest rate component. Besides, the fact that an additional fixed one-off exit remuneration can be added to the total remuneration of 13 % increases the predominance of the fixed remuneration in the total remuneration. The fixed interest rate component of the IBG Fund silent participations is thus the predominant remuneration component, as required by the guidelines.

(40)

Having assessed the detailed information provided by the interested party, the Commission has concluded that the information and ownership and change-of-control clauses of the IBG Fund silent participations appear to be similar to those of unsecured or partially secured subordinated debt instruments, which usually require intensive monitoring and detailed and prompt information on the economic progress of the companies, and define specific financial indicators or covenants which the company must observe. In terms of the information and ownership and change-of-control clauses of the IBG Fund silent participations, therefore, these instruments can be classified as debt instruments.

(41)

In the opening decision, the Commission acknowledged that the IBG Fund conditions for terminating a silent participation contract seem to be similar to those of debt instruments in that the investments can be terminated in case of breach of contract, non-compliance with agreed conditions, incorrect information and change of control. The Commission has taken into consideration that the differences in the terminology merely reflect the specific nature of the IBG Fund silent participations as compared to standard debt instruments. Therefore, apart from the differences in terminology, the termination provisions of the IBG Fund silent participations are in principle similar to those of standard debt instruments.

(42)

The Commission finds that the German authorities and the IBG Fund have demonstrated that the IBG Fund silent participations are typical silent participations and are therefore considered to be debt instruments under the relevant German legislation (civil law, accounting law and tax law) and under the International Accounting Standards (IAS).

(43)

After examination of the economic nature of the IBG Fund silent participations, and taking account of the legal, accounting and tax treatment of these instruments, the Commission finds that in economic terms the IBG Fund silent participations can be classified as debt instruments.

(44)

The Commission has examined the IBG Fund silent participations in the light of Article 87 of the EC Treaty. Article 87(1) of the EC Treaty provides that ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the common market’. In order for a measure to fall within the scope of Article 87(1) of the EC Treaty, four criteria must be met:

(45)

In its opening decision, the Commission concluded that, provided the IBG Fund silent participations could be classified as debt instruments, they would be considered debt instruments in line with market conditions under the 1997 notice. The instrument is also in line with market conditions under the 2008 communication, as the IBG Fund assesses the credit risks of each enterprise, including the level of subordination and collateralisation, and applies risk-adjusted interest rates.

(46)

It can therefore be concluded that the IBG Fund silent participations do not constitute State aid to the target enterprises within the meaning of Article 87(1) of the EC Treaty,

5.5.2009   

EN

Official Journal of the European Union

L 111/31

(1)

On 30 August 2007 the company Vitatene made a request to the competent authorities of the United Kingdom to place lycopene from Blakeslea trispora on the market as a novel food ingredient; on 17 October 2007 the competent food assessment body of the United Kingdom issued its initial assessment report. In that report it came to the conclusion that, in the light of other pending applications concerning lycopene, an additional assessment is required in order to assure that an authorisation for use of the different lycopenes as novel food ingredients is granted under the same terms.

(2)

The Commission forwarded the initial assessment report to all Member States on 11 February 2008.

(3)

The European Food Safety Authority was consulted and issued its opinion on 4 December 2008.

(4)

In its opinion EFSA came to the conclusion, because lycopene may undergo oxidative changes, it needs to be formulated as suspensions in edible oils, directly compressible or water dispersible powders. Sufficient antioxidative protection has to be ascertained.

(5)

EFSA also concluded that the consumption of lycopene by the average user will stay below the acceptable daily intake (ADI), but that some users of lycopene may exceed the ADI. Therefore, it also appears appropriate to collect intake data for a number of years following the authorisation in order to review this authorisation in the light of any further information on the safety of lycopene and its consumption. Particular attention should be given to the collection of data regarding levels of lycopene in breakfast cereals. However, this requirement under the present Decision, applies to the use of lycopene as a novel food ingredient and not to the use of lycopene as a food colour, that falls within the scope of Council Directive 89/107/EEC of 21 December 1988 on the approximation of the laws of the Member States concerning food additives authorised for use in foodstuffs intended for human consumption (2).

(6)

On the basis of the scientific assessment, it is established that the lycopene from Blakeslea trispora complies with the criteria laid down in Article 3(1) of Regulation (EC) No 258/97.

(7)

The company Vitatene agreed that Commission Decision 2006/721/EC (3) will be repealed.

(8)

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

5.5.2009   

EN

Official Journal of the European Union

L 111/35

(1)

On the basis of the annual accounts submitted by the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia concerning expenditure in the field of rural development measures, accompanied by the information required, the accounts of the paying agencies referred to in Article 6(2) of Regulation (EC) No 1290/2005 are to be cleared. The clearance covers the completeness, accuracy and veracity of the accounts transmitted in the light of the reports established by the certification bodies.

(2)

The time limits granted to the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia referred to in Article 7(2) of Commission Regulation (EC) No 885/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD (2) for the submission to the Commission of the documents referred to in Article 8(1)(c) of Regulation (EC) No 1290/2005 and in Article 7(1) of Regulation (EC) No 885/2006, have expired.

(3)

The Commission has checked the information submitted and communicated to the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia before 31 March 2009 the results of its verifications, along with the necessary amendments.

(4)

For the rural development expenditure covered by Article 7(2) of Commission Regulation (EC) No 27/2004 of 5 January 2004 laying down transitional detailed rules for the application of Council Regulation (EC) No 1257/1999 as regards the financing by the EAGF of rural development measures in the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (3) the outcome of the clearance decision is to be deducted from or added to subsequent payments made by the Commission.

(5)

In the light of the verifications made, the annual accounts and the accompanying documents permit the Commission to take, for certain paying agencies, a decision on the completeness, accuracy and veracity of the accounts submitted. The details of these amounts were described in the Summary Report that was presented to the Fund Committee at the same time as this Decision.

(6)

In the light of the verifications made, the information submitted by certain paying agencies requires additional inquiries and their accounts cannot be therefore cleared in this Decision.

(7)

For the rural development expenditure covered by Regulation (EC) No 27/2004, the amounts recoverable or payable under the clearance of accounts decision are to be deducted from or added to subsequent payments.

(8)

In accordance with Article 30(2) of Regulation (EC) No 1290/2005, this Decision does not prejudice decisions taken subsequently by the Commission excluding from Community financing expenditure not effected in accordance with Community rules,

5.5.2009   

EN

Official Journal of the European Union

L 111/44

(1)

Under Article 30 of Regulation (EC) No 1290/2005, the Commission, on the basis of the annual accounts submitted by the Member States, accompanied by the information required for the clearance of accounts and a certificate regarding the integrality, accuracy and veracity of the accounts and the reports established by the certification bodies, clears the accounts of the paying agencies referred to in Article 6 of the said Regulation.

(2)

Pursuant to the second subparagraph of Article 5(1) of Commission Regulation (EC) No 883/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the keeping of accounts by the paying agencies, declarations of expenditure and revenue and the conditions for reimbursing expenditure under the EAGF and the EAFRD (2), account is taken for the 2008 financial year of expenditure incurred by the Member States between 16 October 2007 and 15 October 2008.

(3)

The Commission has checked the information submitted by the Member States and it has communicated to the Member States before 31 March 2009 the results of its verifications, along with the necessary amendments.

(4)

The annual accounts and the accompanying documents permit the Commission to take, for certain paying agencies, a decision on the completeness, accuracy and veracity of the annual accounts submitted. Annex I lists the amounts cleared by Member State and the amounts to be recovered from or paid to the Member States.

(5)

The information submitted by certain other paying agencies requires additional inquiries and their accounts cannot be cleared in this Decision. Annex II lists the paying agencies concerned.

(6)

Under Article 9(4) of Regulation (EC) No 883/2006, any overrun of deadlines during August, September and October is to be taken into account in the clearance of accounts decision. Some of the expenditure declared by certain Member States during these months in the year 2008 was effected after the applicable deadlines. This Decision should therefore fix the relevant reductions.

(7)

The Commission, in accordance with Article 17 of Regulation (EC) No 1290/2005 and Article 9 of Regulation (EC) No 883/2006, has already reduced or suspended a number of monthly payments on entry into the accounts of expenditure for the 2008 financial year. In order to avoid any premature, or temporary, reimbursement of the amounts in question, they should not be recognised in this Decision and they should be further examined under the conformity clearance procedure pursuant to Article 31 of Regulation (EC) No 1290/2005.

(8)

Pursuant to Article 32(5) of Regulation (EC) No 1290/2005, 50 % of the financial consequences of non-recovery of irregularities shall be borne by the Member State concerned if the recovery of those irregularities has not taken place within four years of the primary administrative or judicial finding, or within eight years if the recovery is taken to the national courts. Article 32(3) of the said Regulation obliges Member States to submit to the Commission, together with the annual accounts, a summary report on the recovery procedures undertaken in response to irregularities. Detailed rules on the application of the Member States' reporting obligation of the amounts to be recovered are laid down in Commission Regulation (EC) No 885/2006 of 21 June 2006 laying down detailed rules for the application of Council Regulation (EC) No 1290/2005 as regards the accreditation of paying agencies and other bodies and the clearance of the accounts of the EAGF and of the EAFRD (3). Annex III to the said Regulation provides the table that had to be provided in 2009 by the Member States. On the basis of the tables completed by the Member States, the Commission should decide on the financial consequences of non-recovery of irregularities older than four or eight years respectively. This decision is without prejudice to future conformity decisions pursuant to Article 32(8) of Regulation (EC) No 1290/2005.

(9)

Pursuant to Article 32(6) of Regulation (EC) No 1290/2005, Member States may decide not to pursue recovery. Such a decision may only be taken if the costs already and likely to be incurred total more than the amount to be recovered or if the recovery proves impossible owing to the insolvency, recorded and recognised under national law, of the debtor or the persons legally responsible for the irregularity. If that decision has been taken within four years of the primary administrative or judicial finding or within eight years if the recovery is taken to the national courts, 100 % of the financial consequences of the non-recovery should be borne by the Community budget. In the summary report referred to in Article 32(3) of Regulation (EC) No 1290/2005, the amounts for which the Member State decided not to pursue recovery and the grounds for the decision are shown. These amounts are not charged to the Member States concerned and are consequently borne by the Community budget. This decision is without prejudice to future conformity decisions pursuant to Article 32(8) of the said Regulation.

(10)

In accordance with Article 30(2) of Regulation (EC) No 1290/2005, this Decision does not prejudice decisions taken subsequently by the Commission excluding from Community financing expenditure not effected in accordance with Community rules,

5.5.2009   

EN

Official Journal of the European Union

L 111/50

(1)

The Commission has to fix the amounts attributed to each Member State concerned for the aid for diversification provided for in Article 6 of Regulation (EC) No 320/2006 and the additional aid for diversification provided for in Article 7 of that Regulation.

(2)

The amounts of the aid for diversification and additional aid for diversification are calculated on the basis of the tonnes of sugar quota renounced in the 2009/2010 marketing year in the Member State concerned, as provided for in Article 13(2) of Regulation (EC) No 968/2006,