1.10.2009   

EN

Official Journal of the European Union

L 258/1

(1)

By Regulation (EC) No 1174/2005 (2), the Council imposed a definitive anti-dumping duty and definitively collected the provisional duty imposed on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China. For the four companies with individual duties, the duties in force range from 7,6 % to 39,9 %. The duty applicable to all other companies is 46,7 %. Regulation (EC) No 684/2008 (3) clarified the scope of the anti-dumping measures imposed by Regulation (EC) No 1174/2005.

(2)

The Commission received a request for a new exporter review of Regulation (EC) No 1174/2005, pursuant to Article 11(4) of the basic Regulation, from one exporting producer of hand pallet trucks and their essential parts originating in the People’s Republic of China.

(3)

The request was lodged by Crown Equipment (Suzhou) Company Limited (Crown Suzhou or the applicant).

(4)

The applicant alleged that it operated under market economy conditions and that it did not export the product concerned to the European Community during the period of investigation on which the anti-dumping measures were based i.e. from 1 April 2003 to 31 March 2004 (the original investigation period) and that it was not related to any of the exporting producers of the product concerned which are subject to the measures in force. Furthermore, it claimed that it had started to export hand pallet trucks and their essential parts to the Community after the end of the original investigation period.

(5)

Having determined, after consulting the Advisory Committee, that sufficient evidence existed to justify the initiation of a new exporter review in accordance with Article 11(4) of the basic Regulation and after the Community industry concerned had been given the opportunity to comment, the Commission initiated, by Regulation (EC) No 52/2009 (4), a review of Regulation (EC) No 1174/2005 with regard to the applicant (the review).

(6)

Pursuant to Article 2 of Regulation (EC) No 52/2009, the anti-dumping duty of 46,7 % imposed by Regulation (EC) No 1174/2005 on imports of hand pallet trucks and their essential parts produced by the applicant was repealed. Simultaneously, pursuant to Article 14(5) of the basic Regulation, customs authorities were directed to take appropriate steps to register such imports.

(7)

The product concerned is the same as that set out in Regulation (EC) No 1174/2005 as amended by Regulation (EC) No 684/2008, being hand pallet trucks and their essential parts, i.e. chassis and hydraulics, originating in the People’s Republic of China, currently falling within CN codes ex 8427 90 00 and ex 8431 20 00. Hand pallet trucks are defined as trucks with wheels supporting lifting fork arms for handling pallets, designed to be manually pushed, pulled and steered, on smooth, level, hard surfaces, by a pedestrian operator using an articulated tiller. The hand pallet trucks are only designed to raise a load, by pumping the tiller, to a height sufficient for transporting and do not have any other additional functions or uses such as for example (i) to move and to lift the loads in order to place them higher or assist in storage of loads (highlifters); (ii) to stack one pallet above the other (stackers); (iii) to lift the load to a working level (scissor lifts); or (iv) to lift and to weigh the loads (weighing trucks).

(8)

The Commission officially advised the applicant, representatives of the Community industry and the representatives of the exporting country of the initiation of the review. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in Regulation (EC) No 52/2009.

(9)

The Commission services also sent a market economy treatment (MET) claim form and a questionnaire to the applicant and received the replies within the deadlines set for that purpose.

(10)

The investigation of dumping covered the period from 1 January 2008 to 31 December 2008.

(11)

By letter to the Commission dated 22 May 2009, Crown Suzhou formally withdrew its request for a new exporter review under Article 11(4) of the basic Regulation.

(12)

It was considered whether it would be warranted to continue the investigation ex officio. The Commission considered that the termination of the investigation would not affect the anti-dumping measure in force, that the duty rate applicable to all other companies would be re-imposed retroactively on Crown Suzhou and that such termination would not be against the Community interest. On this basis, the investigation should be terminated.

(13)

Interested parties were informed of the intention to terminate the investigation and re-impose a definitive anti-dumping duty on imports of the product concerned produced and sold for export to the Community by Crown Suzhou and were given the opportunity to comment. However, no comments which could alter this decision were received.

(14)

It was therefore concluded that imports into the Community of hand pallet trucks and their essential parts, i.e. chassis and hydraulics, originating in the People’s Republic of China, currently falling within CN codes ex 8427 90 00 and ex 8431 20 00 and produced and sold for export to the Community by Crown Suzhou should be subject to the country-wide duty applicable to all other companies (46,7 %) imposed by Regulation (EC) No 1174/2005 and that that rate of duty should therefore be re-imposed.

(15)

In the light of the above findings, the anti-dumping duty applicable to Crown Suzhou should be levied retroactively, from the date of entry into force of Regulation (EC) No 52/2009, on imports of the product concerned which have been made subject to registration pursuant to Article 3 of that Regulation.

(16)

The review does not affect the date on which the measures imposed by Regulation (EC) No 1174/2005 will expire pursuant to Article 11(2) of the basic Regulation,

1.10.2009   

EN

Official Journal of the European Union

L 258/4

1.10.2009   

EN

Official Journal of the European Union

L 258/6

(1)

Article 136(1) of Regulation (EC) No 1234/2007 states that the import duty on products falling within CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002, ex 1005 other than hybrid seed, and ex 1007 other than hybrids for sowing, is to be equal to the intervention price valid for such products on importation increased by 55 %, minus the cif import price applicable to the consignment in question. However, that duty may not exceed the rate of duty in the Common Customs Tariff.

(2)

Article 136(2) of Regulation (EC) No 1234/2007 lays down that, for the purposes of calculating the import duty referred to in paragraph 1 of that Article, representative cif import prices are to be established on a regular basis for the products in question.

(3)

Under Article 2(2) of Regulation (EC) No 1249/96, the price to be used for the calculation of the import duty on products of CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002 00, 1005 10 90, 1005 90 00 and 1007 00 90 is the daily cif representative import price determined as specified in Article 4 of that Regulation.

(4)

Import duties should be fixed for the period from 1 October 2009 and should apply until new import duties are fixed and enter into force,

1.10.2009   

EN

Official Journal of the European Union

L 258/9

(1)

Council Regulation (EC) No 43/2009 of 16 January 2009 fixing for 2009 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks applicable in Community waters and for Community vessels, in waters where catch limitations are required (3), lays down quotas for 2009.

(2)

According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein have exhausted the quota allocated for 2009.

(3)

It is therefore necessary to prohibit fishing for that stock and its retention on board, transhipment and landing,

1.10.2009   

EN

Official Journal of the European Union

L 258/11

(1)

First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (4) has been substantially amended several times (5). In the interests of clarity and rationality that Directive should be codified.

(2)

The coordination of national provisions concerning disclosure, the validity of obligations entered into by, and the nullity of, companies limited by shares or otherwise having limited liability is of special importance, particularly for the purpose of protecting the interests of third parties.

(3)

The basic documents of the company should be disclosed in order that third parties may be able to ascertain their contents and other information concerning the company, especially particulars of the persons who are authorised to bind the company.

(4)

Without prejudice to substantive requirements and formalities established by the national law of the Member States, companies should be able to choose to file their compulsory documents and particulars by paper means or by electronic means.

(5)

Interested parties should be able to obtain from the register a copy of such documents and particulars by paper means as well as by electronic means.

(6)

Member States should be allowed to decide to keep the national gazette, designated for publication of compulsory documents and particulars, in paper form or electronic form, or to provide for disclosure by equally effective means.

(7)

Cross-border access to company information should be facilitated by allowing, in addition to the mandatory disclosure made in one of the languages permitted in the company’s Member State, voluntary registration in additional languages of the required documents and particulars. Third parties acting in good faith should be able to rely on the translations thereof.

(8)

It is appropriate to clarify that the statement of the compulsory particulars set out in this Directive should be included in all company letters and order forms, whether they are in paper form or use any other medium. In the light of technological developments, it is also appropriate to provide that these statements be placed on any company website.

(9)

The protection of third parties should be ensured by provisions which restrict to the greatest possible extent the grounds on which obligations entered into in the name of the company are not valid.

(10)

It is necessary, in order to ensure certainty in the law as regards relations between the company and third parties, and also between members, to limit the cases in which nullity can arise and the retroactive effect of a declaration of nullity, and to fix a short time limit within which third parties may enter objection to any such declaration.

(11)

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,

—

Belgium:

—

Bulgaria:

акционерно дружество, дружество с ограничена отговорност, командитно дружество с акции;

—

Czech Republic:

společnost s ručením omezeným, akciová společnost;

—

Denmark:

aktieselskab, kommanditaktieselskab, anpartsselskab;

—

Germany:

die Aktiengesellschaft, die Kommanditgesellschaft auf Aktien, die Gesellschaft mit beschränkter Haftung;

—

Estonia:

aktsiaselts, osaühing;

—

Ireland:

Companies incorporated with limited liability;

—

Greece:

ανώνυμη εταιρία, εταιρία περιωρισμένης ευθύνης, ετερόρρυθμη κατά μετοχές εταιρία;

—

Spain:

la sociedad anónima, la sociedad comanditaria por acciones, la sociedad de responsabilidad limitada;

—

France:

société anonyme, société en commandite par actions, société à responsabilité limitée, société par actions simplifiée;

—

Italy:

società per azioni, società in accomandita per azioni, società a responsabilità limitata;

—

Cyprus:

δημόσιες εταιρείες περιορισμένης ευθύνης με μετοχές ή με εγγύηση, ιδιωτικές εταιρείες περιορισμένης ευθύνης με μετοχές ή με εγγύηση;

—

Latvia:

akciju sabiedrība, sabiedrība ar ierobežotu atbildību, komanditsabiedrība;

—

Lithuania:

akcinė bendrovė, uždaroji akcinė bendrovė;

—

Luxembourg:

société anonyme, société en commandite par actions, société à responsabilité limitée;

—

Hungary:

részvénytársaság, korlátolt felelősségű társaság;

—

Malta:

kumpannija pubblika/public limited liability company, kumpannija privata/private limited liability company;

—

The Netherlands:

naamloze vennootschap, besloten vennootschap met beperkte aansprakelijkheid;

—

Austria:

die Aktiengesellschaft, die Gesellschaft mit beschränkter Haftung;

—

Poland:

spółka z ograniczoną odpowiedzialnością, spółka komandytowo-akcyjna, spółka akcyjna;

—

Portugal:

a sociedade anónima de responsabilidade limitada, a sociedade em comandita por acções, a sociedade por quotas de responsabilidade limitada;

—

Romania:

societate pe acțiuni, societate cu răspundere limitată, societate în comandită pe acțiuni;

—

Slovenia:

delniška družba, družba z omejeno odgovornostjo, komaditna delniška družba;

—

Slovakia:

akciová spoločnosť, spoločnosť s ručením obmedzeným;

—

Finland:

yksityinen osakeyhtiö/privat aktiebolag, julkinen osakeyhtiö/publikt aktiebolag;

—

Sweden:

aktiebolag;

—

United Kingdom:

Companies incorporated with limited liability.

(a)

the instrument of constitution, and the statutes if they are contained in a separate instrument;

(b)

any amendments to the instruments mentioned in point (a), including any extension of the duration of the company;

(c)

after every amendment of the instrument of constitution or of the statutes, the complete text of the instrument or statutes as amended to date;

(d)

the appointment, termination of office and particulars of the persons who either as a body constituted pursuant to law or as members of any such body:

(e)

at least once a year, the amount of the capital subscribed, where the instrument of constitution or the statutes mention an authorised capital, unless any increase in the capital subscribed necessitates an amendment of the statutes;

(f)

the accounting documents for each financial year which are required to be published in accordance with Council Directives 78/660/EEC (6), 83/349/EEC (7), 86/635/EEC (8) and 91/674/EEC (9);

(g)

any change of the registered office of the company;

(h)

the winding-up of the company;

(i)

any declaration of nullity of the company by the courts;

(j)

the appointment of liquidators, particulars concerning them, and their respective powers, unless such powers are expressly and exclusively derived from law or from the statutes of the company;

(k)

the termination of the liquidation and, in Member States where striking off the register entails legal consequences, the fact of any such striking off.

(a)

the information necessary in order to identify the register in which the file mentioned in Article 3 is kept, together with the number of the company in that register;

(b)

the legal form of the company, the location of its registered office and, where appropriate, the fact that the company is being wound up.

(a)

failure to disclose accounting documents as required by Article 2(f);

(b)

omission from commercial documents or from any company website of the compulsory particulars provided for in Article 5.

(a)

nullity must be ordered by decision of a court of law;

(b)

nullity may be ordered only on the grounds:

1.10.2009   

EN

Official Journal of the European Union

L 258/20

(1)

Twelfth Council Company Law Directive 89/667/EEC of 21 December 1989 on single-member private limited-liability companies (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified.

(2)

Certain safeguards which, for the protection of the interests of members and others, are required by Member States of companies and firms within the meaning of the second paragraph of Article 48 of the Treaty should be coordinated with a view to making such safeguards equivalent throughout the Community.

(3)

In this field, First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (5), Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (6) and Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts (7), respectively concerning disclosure, the validity of commitments, nullity, annual accounts and consolidated accounts, apply to all share-capital companies. However, Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (8), Third Council Directive 78/855/EEC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies (9), and Sixth Council Directive 82/891/EEC of 17 December 1982 based on Article 54(3)(g) of the Treaty, concerning the division of public limited liability companies (10), relating respectively to formation and capital, mergers and divisions, apply only to public limited liability companies.

(4)

A legal instrument is required allowing the limitation of liability of the individual entrepreneur throughout the Community, without prejudice to the laws of the Member States, which, in exceptional circumstances, require that entrepreneur to be liable for the obligations of his undertaking.

(5)

A private limited liability company may be a single-member company from the time of its formation, or may become one because its shares have come to be held by a single shareholder. Pending the coordination of national provisions on the laws relating to groups, Member States may lay down certain special provisions and penalties for cases where a natural person is the sole member of several companies or where a single-member company or any other legal person is the sole member of a company. The sole aim of this power is to take account of the differences which exist in certain national laws. For that purpose, Member States may in specific cases lay down restrictions on the use of single-member companies or remove the limits on the liabilities of sole members. Member States are free to lay down rules to cover the risks that single-member companies may present as a consequence of having single members, particularly in order to ensure that the subscribed capital is paid.

(6)

The fact that all the shares have come to be held by a single shareholder and the identity of the sole member should be disclosed by an entry in a register accessible to the public.

(7)

Decisions taken by the sole member exercising the powers of the general meeting should be recorded in writing.

(8)

Contracts between a sole member and his company as represented by him should likewise be recorded in writing, in so far as such contracts do not relate to current operations concluded under normal conditions.

(9)

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

(a)

a natural person is the sole member of several companies; or

(b)

a single-member company or any other legal person is the sole member of a company.

1.10.2009   

EN

Official Journal of the European Union

L 258/26

1.10.2009   

EN

Official Journal of the European Union

L 258/27

(1)

Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (2) applies to the production and placing on the market of live animals and products of animal origin.

(2)

Annex VII to Regulation (EC) No 999/2001 lays down the measures to be taken in the event of suspicion or confirmation of a transmissible spongiform encephalopathy (TSE) in ovine or caprine animals in the Community. The rules for the placing on the market in the Community and for the importation into the Community of those animals and products thereof are laid down in Annexes VIII and IX thereto.

(3)

Regulation (EC) No 178/2002 lays down rules governing food and feed in general, and food and feed safety in particular, at Community and national level. Article 53 of that Regulation provides that, where it is evident that food or feed originating in the Community or imported from a third country is likely to constitute a serious risk to human health, animal health or the environment, and that such risk cannot be contained satisfactorily by means of measures taken by the Member State(s) concerned, the Commission is to immediately adopt certain measures which may include the suspension of the placing on the market or importation of the food of animal origin in question.

(4)

In addition, Article 54 of Regulation (EC) No 178/2002 provides that where a Member State officially informs the Commission of the need to take emergency measures, and where the Commission has not acted in accordance with Article 53 of that Regulation, the Member State may adopt interim protective measures and it is to immediately inform the other Member States and the Commission thereof. In that case, within 10 working days the Commission is to put the matter before the Standing Committee on the Food Chain and Animal Health (SCoFCAH) with a view to the extension, amendment or abrogation of the national interim protective measures. Pending the adoption of Community measures, the Member State may maintain its national interim protective measures.

(5)

On 8 March 2007, the European Food Safety Authority (EFSA) adopted an Opinion of the Scientific Panel on Biological Hazards on a request from the European Commission on certain aspects related to the risk of TSE in ovine and caprine animals (3). In that opinion, EFSA concluded that: ‘There is no evidence for an epidemiological or molecular link between classical and/or atypical scrapie and TSEs in humans. The BSE agent is the only TSE agent identified as zoonotic. However, in view of their diversity it is currently not possible to exclude transmissibility to humans of other animal TSE agents’ (4).

(6)

Following that Opinion, Commission Regulation (EC) No 727/2007 of 26 June 2007 amending Annexes I, III, VII and X to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (5) was adopted. Regulation (EC) No 727/2007 provided for the discontinuation of the obligation to cull the entire flock and provided for certain alternative measures to culling in the event of confirmation of an outbreak of TSE in a holding of ovine or caprine animals and where the presence of bovine spongiform encephalopathy (BSE) had been excluded. Following an action of annulment and demand for interim measures brought by France against certain provisions of this Regulation, by Order of 28 September 2007 of the Judge hearing the application for interim measures (6), the Court suspended the application of the contested provisions pending delivery of a final judgment in the main action.

(7)

On 24 January 2008, following a request from the Commission, EFSA adopted a scientific and technical clarification in the interpretation of some facets of the conclusions of its Opinion of 8 March 2007 on certain aspects related to the risk of TSEs in ovine and caprine animals (7), which had been considered at the time of the adoption of Regulation (EC) No 727/2007.

(8)

After considering that clarification in detail and after having examined the possible choices available to it in its role as risk manager, the Commission adopted Regulation (EC) No 746/2008 of 17 June 2008 amending Annex VII to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (8). Regulation (EC) No 746/2008, in essence, maintains the provisions already provided for in Regulation (EC) No 727/2007. Following new actions brought by France, by Order of 30 October 2008 of the President of the Court of First Instance (9), the Court suspended the application of the relevant provisions pending delivery of a final judgment in which the legality of the risk management measures taken by the Commission by Regulation (EC) No 746/2008 will be fully assessed.

(9)

On 6 November 2008, EFSA published an Opinion of the Scientific Panel on Biological Hazards on a request from the European Commission on the human and animal exposure risk related to transmissible spongiform encephalopathies (TSEs) from milk and milk products derived from small ruminants (10). In that Opinion, EFSA concluded that classical scrapie can be transmitted from ewe to lamb via milk or colostrums. EFSA also stated that the use of milk and milk products from a flock with classical scrapie may carry a TSE exposure risk for humans and animals. It also concluded that the breeding programmes for scrapie resistance in sheep can be expected to reduce human and animal exposure associated with small ruminants dairy products. As regards the atypical scrapie, it further concluded that the apparent restricted dissemination of the agent in the organism of affected individuals could limit the transmissibility through milk. As regards BSE, it noted that no information is available concerning the presence of infectivity or PrPSc in colostrum or milk from small ruminants affected with BSE. However, because of the early and progressive peripheral dissemination of the BSE agent in experimentally infected susceptible sheep, it concluded that the occurrence of infectivity in colostrum and milk of BSE infected susceptible small ruminants would be likely.

(10)

On 6 November 2008, the French Food Safety Agency (AFSSA) published an Opinion on the risk of classical scrapie spreading via the milk of small ruminant animals (11) where it reached the same conclusions as regard the transmissibility of classical scrapie from ewe to lamb via milk or colostrums as the EFSA Opinion. With regard to the TSE exposure for humans, the AFSSA considered that consumption of milk or milk products from infected herds of small ruminants or those suspected of infection could result in excess consumer exposure and recommended ‘that marketing of the milk and milk products from the herd be prohibited for human foods’ in view of the high potential incidence of the disease in herds suffering from classical scrapie.

(11)

On 7 November 2008, based on the EFSA and AFSSA opinions, France adopted measures limited to the national market and banning the use of milk and milk products coming from scrapie infected flocks in France for food and feed purposes. (12)

(12)

On 11 and 26 November 2008, the consequences to be drawn from these new scientific elements have been examined in SCoFCAH.

(13)

During the SCoFCAH meeting of 11 November 2008, taking into account the new scientific evidence and in particular the proven transmissibility of classical scrapie through milk from ewe to lamb, a draft proposal for a Commission Regulation amending Annexes VII and IX to Regulation (EC) No 999/2001 in order to ban the use of milk and milk products from scrapie-infected flocks for feed purposes, to accelerate the eradication procedure in dairy flocks infected by classical scrapie and to restrict the use of milk and milk products for food purposes on the national market was presented. However, as that last element did not receive the support of a majority of the Member States, the proposal was not put to a vote.

(14)

On 26 November 2008, an amended proposal for a Commission Regulation amending Annexes VII and IX to Regulation (EC) No 999/2001 in order to ban the use of milk and milk products coming from holdings with a classical scrapie case for feed purposes, was presented and supported by qualified majority in SCoFCAH. In an official declaration, the French delegation welcomed the adoption of that proposal and invited the Commission to present another proposal for a Commission Regulation amending Regulation (EC) No 999/2001, in order to provide for similar measures for food. In reply to that request, the Commission confirmed that discussions would continue in that respect for food.

(15)

Subsequently, Commission Regulation (EC) No 103/2009 of 3 February 2009 amending Annexes VII and IX to Regulation (EC) No 999/2001 of the European Parliament and of the Council laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (13), was adopted. Regulation (EC) No 103/2009 provides for a number of amendments to be made to Annex VII to Regulation (EC) No 999/2001, including provision that in the case a confirmed TSE is classical scrapie, the milk and milk products derived from the animals to be destroyed on the holding cannot be used for the feeding of ruminants, except within that holding. In addition, the placing on the market of such products as feed for non-ruminants is to be limited to the territory of the Member State concerned. Finally, Regulation (EC) No 103/2009 provides for the acceleration of the eradication procedure in dairy flocks infected by classical scrapie in order to reduce the TSE exposure risk for humans.

(16)

On 18 December 2008, France requested the Commission to adopt emergency measures in accordance with Article 53(1) of Regulation (EC) No 178/2002, regarding the human exposure to the causal agents of classical scrapie. In addition, at the SCoFCAH meeting of 14 January 2009, France informed the delegations of the other Member States of that request.

(17)

On 20 January 2009, in line with the discussions following the presentation to the SCoFCAH on 26 November 2008 of a proposal for a Commission Regulation amending Annexes VII and IX to Regulation (EC) No 999/2001, the Commission pursued that discussion at working group level concerning the use for food purposes of milk and milk products from holdings with a classical scrapie case. It emerged from that discussion that the vast majority of Member States did not support the position adopted by France with regard to the necessity to take supplementary risk management measures restricting the use of such milk and milk products for food purposes.

(18)

By letter of 11 March 2009 addressed to France, the Commission confirmed that it did not intend to adopt any emergency measures regarding the use of milk and milk products for food purposes.

(19)

On 25 February 2009, France adopted a measure relating to the prohibition of import of milk and milk products for human consumption from ovine and caprine origin onto the French territory (14). On 9 March 2009, France notified those measures as interim protective measures to the Commission pursuant to Article 54(1) of Regulation (EC) No 178/2002. These measures provide that milk and milk products can be imported from another Member State onto the French territory if and only if they come from a holding which was not placed under an official movement restriction at the time of production and if and only if they do not come from animals which were to be destroyed or killed following the confirmation of a classical scrapie case.

(20)

Accordingly, the Commission has put the matter before the SCoFCAH at its meeting of 23 March 2009, with a view to the extension, amendment or abrogation of the national interim protective measures in accordance with Article 54(2) of Regulation (EC) No 178/2002.

(21)

As referred to in detail in the preamble to Regulation (EC) No 746/2008, and in particular recital 12 thereof, the EFSA acknowledges that there is no scientific evidence of any direct link between TSE in ovine and caprine animals, other than BSE, and TSE in humans even if the biodiversity of the disease agents in ovine and caprine animals is an important element which does not make it possible to exclude transmissibility to humans.

(22)

The EFSA viewpoint that transmissibility to humans of TSE agents in ovine or caprine animals cannot be excluded is based on experimental studies on human species barrier and animal models (primates and mice). Those models, however, do not take into account genetic characteristics of humans which have a major influence on relative susceptibility to prion diseases. They also have limitations when extrapolating results to natural conditions, in particular regarding how well they represent the human species barrier and the uncertainty of how well the experimental inoculation route employed represents exposure under natural conditions. On that basis, it may be considered that although a risk of transmissibility to humans of TSE agents in ovine or caprine animals cannot be excluded, that risk would be extremely low, taking into account the fact that the evidence of transmissibility is based on experimental models which do not represent the natural conditions related to the real human species barrier and the real routes of infection.

(23)

A high level of protection of human life and health is assured in the pursuit of Community policies. Community measures governing food and feed must be based on an appropriate assessment of the possible risks for human and animal health and must, taking into account existing scientific evidence, maintain or, if scientifically justified, increase the level of protection of human and animal health. It is impossible, however, to consider the complete elimination of risk as a realistic objective for any risk management decision in matters regarding food safety, where the cost and benefits of risk-reducing measures have to be carefully weighed in order to ensure the measure’s proportionality. It is the role and responsibility of the risk manager to decide the acceptable level of risk, taking into account all the elements present in a scientific risk assessment.

(24)

The Commission, in its role as risk manager at Community level, in close collaboration with the Member States, is responsible for establishing the acceptable level of risk and adopting measures that are the most appropriate for maintaining a high level of protection of public health. It has reviewed and assessed the most recent scientific information as regards the transmissibility of TSE to humans. It has assessed any risk that is present as being currently very low and acceptable. In addition to the rules related to feed and without taking disproportionate measures, the Commission has provided for the acceleration of the eradication procedure in dairy flocks infected by classical scrapie in its Regulation (EC) No 103/2009, which results in a further reduction of the TSE exposure for humans.

(25)

Therefore, based on the scientific evidence referred to in the scientific opinions available and also the consultations with the SCoFCAH, and pending the judgment of the Court of First Instance on the legality of the contested provisions of Regulation (EC) No 746/2008 which is pertinent also for the issue at stake in the notification made by France, the Commission, after having consulted the SCoFCAH, considers that the interim protective measures adopted by France go beyond what is necessary to avoid a serious risk to human health, even taking into account the precautionary principle.

(26)

Therefore, the Commission considers that the measures adopted by France on 25 February 2009 and notified to the Commission on 9 March 2009 should be suspended in accordance with Article 54(2) of Regulation (EC) No 178/2002 awaiting the delivery of a judgment in the case T-257/07 France v Commission.

(27)

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

1.10.2009   

EN

Official Journal of the European Union

L 258/31

(1)

Regulation (EC) No 178/2002 lays down the general principles governing food and feed in general, and food and feed safety in particular, at Community and national level. It provides for emergency measures where it is evident that food or feed imported from a third country is likely to constitute a serious risk to human health, animal health or the environment, and that such risk cannot be contained satisfactorily by means of measures taken by the Member State(s) concerned.

(2)

Council Directive 96/23/EC of 29 April 1996 on measures to monitor certain substances and residues thereof in live animals and animal products (2) provides that the production process of animals and primary products of animal origin is to be monitored for the purpose of detecting the presence of certain residues and substances in live animals, their excrements and body fluids and in tissue, animal products, animal feed and drinking water. Article 29 of Directive 96/23/EC requires that guarantees provided by third countries must have an effect at least equivalent to those provided for in this Directive.

(3)

The results of the latest Community inspection visit to India have revealed shortcomings as regards the residue control system in live animals and animal products.

(4)

Despite guarantees provided by India, Member States report to the Commission increased findings of nitrofurans and their metabolites in crustaceans imported from India and intended for human consumption or animal feed. The presence of those substances in food is forbidden by Council Regulation (EEC) No 2377/90 (3) and they present a serious risk for human health.

(5)

These products of animal origin are also used in the manufacturing of feed for aquaculture animals. Nitrofurans or their metabolites are not authorised as feed additive following provisions of Regulation (EC) No 1831/2003 of the European Parliament and of the Council (4). In addition, such products of animal origin which contain nitrofurans used as antibacterial substances are excluded from feed for farmed animals, since they are category 2 animal by-products in accordance with Regulation (EC) No 1774/2002 of the European Parliament and of the Council (5).

(6)

Therefore it is appropriate to adopt, at Community level, certain emergency measures applicable to importations of crustaceans of aquaculture origin from India in order to ensure the effective and uniform protection of human health in all Member States.

(7)

Accordingly, Member States should allow importations of crustaceans of aquaculture origin from India only if it can be shown that they have been subjected to an analytical test at origin to verify that the concentration of nitrofurans or their metabolites are not in excess of the decision limit of the confirmatory analytical method used, in accordance with Commission Decision 2002/657/EC (6).

(8)

However, it is appropriate to authorise the importation of consignments that are not accompanied by the results of the analytical tests at origin, provided that the importing Member State ensures that those are tested on arrival at the Community border and kept under the official control until the results become available.

(9)

This Decision should be reviewed in the light of the guarantees offered by India and on the basis of the results of the analytical tests carried out by the Member States.

(10)

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

1.10.2009   

EN

Official Journal of the European Union

L 258/34

(1)

By Decision 2006/660/EC (2), the Commission granted the Polish Register of Shipping a limited recognition for a period of three years. This recognition is granted to organisations known as classification societies, which fulfil all criteria other than those set out under paragraphs 2 and 3 of the ‘General Minimum Criteria’ section A of the Annex to Council Directive 94/57/EC of 22 November 1994 on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime administrations (3). The effects of this recognition were limited to the Czech Republic, Cyprus, Lithuania, Malta, Poland and Slovakia.

(2)

The Commission assessed the Polish Register of Shipping in accordance with Article 11(3) of Directive 94/57/EC. The assessment was based on the results of four fact-finding inspections performed in 2007 by experts of the European Maritime Safety Agency in accordance with Article 2(b)(iii) of Regulation (EC) No 1406/2002 of the European Parliament and of the Council (4). The Czech, Cypriot, Lithuanian, Maltese, Polish and Slovak administrations were invited to take part in the assessment. The Commission has also taken into consideration the findings of two further inspections carried out by the European Maritime Safety Agency in April and May 2009 in order to examine the activities of the Polish Register of Shipping in the supervision of new ship construction and to verify the corrective action implemented by the Polish Register of Shipping in response to the Commission’s assessment.

(3)

Where shortcomings have been identified, the Polish Register of Shipping has promptly implemented appropriate and sufficient corrective action in most cases. The outstanding shortcomings mainly concern the implementation of its rules and procedures, particularly as regards the control of the quality of shipyards and verification of new constructions, the training and qualification of surveyors and transfer of class. The Polish Register of Shipping has therefore been invited to implement further corrective action in this respect. Despite their seriousness, these shortcomings do not at present warrant calling into question the overall quality of the organisation’s main systems and control mechanisms.

(4)

In the meantime, Regulation (EC) No 391/2009 has entered into force. It provides that the organisations which, at the date of its entry into force, have been granted recognition in accordance with Directive 94/57/EC shall retain their recognition. Those recognitions have to be examined by the Commission by 17 June 2010, with a view to deciding whether the limitations are to be replaced by others or removed.

(5)

The information available to the Commission based on the assessment and inspections made shows that the Polish Register of Shipping in general complies with the requirements and obligations laid down in Regulation (EC) No 391/2009 in all trades and for all kinds of ships.

(6)

Based on the data last published by the Paris Memorandum of Understanding on Port State control, which concern the inspections carried out by the signatory parties until 2008, the rate of detention of ships for reasons relating to the certificates delivered to them by the Polish Register of Shipping in the period 2006-2008 remained at 0,77 % of the total number of inspections, while the average rate for recognised organisations was 0,34 %.

(7)

An extension of the Community recognition of the Polish Register of Shipping should enter into force on 29 September 2009 in order to ensure its continuity.

(8)

The measures provided for in this Decision are in accordance with the opinion of the COSS Committee set up by Article 12 of Regulation (EC) No 391/2009,