21.12.2010   

EN

Official Journal of the European Union

L 336/1

(1)

According to Article 43(3) of the Treaty, the Council, on a proposal from the Commission, is to adopt measures on the fixing and allocation of fishing opportunities.

(2)

Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (1) requires that measures governing access to waters and resources and the sustainable pursuit of fishing activities be established taking into account available scientific, technical and economic advice and in particular reports drawn up by the Scientific, Technical and Economic Committee for Fisheries (STECF).

(3)

It is incumbent upon the Council to adopt measures on the fixing and allocation of fishing opportunities by fishery or group of fisheries, including certain conditions functionally linked thereto, where appropriate. Fishing opportunities should be distributed among Member States in such a way as to assure each Member State relative stability of fishing activities for each stock or fishery and having due regard to the objectives of the Common Fisheries Policy established by Regulation (EC) No 2371/2002.

(4)

The total allowable catches (TACs) should be established on the basis of the available scientific advice, by taking into account the biological and socioeconomic aspects whilst ensuring fair treatment between fishing sectors, as well as in the light of the opinions expressed during the consultation of stakeholders, in particular those of the Advisory Committee on Fisheries and Aquaculture and of the Regional Advisory Councils concerned.

(5)

Fishing opportunities should be in accordance with international agreements and principles, such as the 1995 United Nations agreement concerning the conservation and management of straddling stocks and highly migratory fish stocks (2), and the detailed management principles laid down in the 2008 International Guidelines for the Management of Deep-sea Fisheries in the High Seas of the Food and Agriculture Organisation of the United Nations, according to which, in particular, a regulator should be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information should not be used as a reason for postponing or failing to take conservation and management measures.

(6)

The latest scientific advice from the International Council for the Exploration of the Sea (ICES) (3) and from the STECF (4) indicates that most deep-sea stocks are harvested unsustainably and that fishing opportunities for those stocks, in order to assure their sustainability, should be reduced until the evolution of the stock sizes show a positive trend. The ICES has further advised that no directed fishery should be allowed for orange roughy.

(7)

Concerning deep sea sharks, the main commercial species are considered depleted, and therefore no directed fishing should take place. Until the amount of unavoidable by-catch will have been established by means of selectivity projects and other technical measures, no by-catch should be allowed to be landed.

(8)

The fishing opportunities for deep-sea species, as listed in Annex I to Council Regulation (EC) No 2347/2002 of 16 December 2002 establishing specific access requirements and associated conditions applicable to fishing for deep-sea stocks (5), are decided on a bi-annual basis. Nevertheless, an exception is made for the stocks of greater silver smelt and the main fishery of blue ling, for which the fishing opportunities depend on the outcome of the annual negotiations with Norway. The fishing opportunities for those stocks are therefore established in another relevant annual regulation fixing fishing opportunities.

(9)

In accordance with Council Regulation (EC) No 847/96 of 6 May 1996 introducing additional conditions for year-to-year management of TACs and quotas (6), the stocks that are subject to the various measures referred to therein must be identified.

(10)

To ensure the livelihood of Union fishermen, it is important to open these fisheries on 1 January 2011,

(a)

‘EU vessel’ means a fishing vessel flying the flag of a Member State and registered in the Union;

(b)

‘EU waters’ means the waters under the sovereignty or jurisdiction of the Member States with the exception of waters adjacent to the territories mentioned in Annex II to the Treaty;

(c)

‘total allowable catch’ (TAC) means the quantity that can be taken and landed from each stock each year;

(d)

‘quota’ means a proportion of the TAC allocated to the Union, a Member State or a third country;

(e)

‘international waters’ means waters falling outside the sovereignty or jurisdiction of any State.

(a)

ICES zones are as defined in Regulation (EC) No 218/2009 of the European Parliament and of the Council of 11 March 2009 on the submission of nominal catch statistics by Member States fishing in the north-east Atlantic (recast) (7);

(b)

CECAF (Eastern Central Atlantic or FAO major fishing zone 34) zones are as defined in Regulation (EC) No 216/2009 of the European Parliament and of the Council of 11 March 2009 on the submission of nominal catch statistics by Member States fishing in certain areas other than those of the North Atlantic (recast) (8).

(a)

exchanges made pursuant to Article 20(5) of Regulation (EC) No 2371/2002;

(b)

deductions and reallocations made pursuant to Article 37 of Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy (9) or pursuant to Article 10(4) of Council Regulation (EC) No 1006/2008 of 29 September 2008 concerning authorisations for fishing activities of Community fishing vessels outside Community waters and the access of third country vessels to Community waters (10);

(c)

additional landings allowed pursuant to Article 3 of Regulation (EC) No 847/96;

(d)

quantities withheld pursuant to Article 4 of Regulation (EC) No 847/96;

(e)

deductions made pursuant to Articles 105 and 107 of Regulation (EC) No 1224/2009.

21.12.2010   

EN

Official Journal of the European Union

L 336/13

(1)

Annex I to Regulation (EC) No 1236/2005 lists the competent authorities to which specific functions related to the implementation of that Regulation are attributed.

(2)

Further to a request made by Estonia the information concerning the competent authority in Estonia should be amended,

21.12.2010   

EN

Official Journal of the European Union

L 336/15

(1)

Regulation (EC) No 184/2005 establishes a common framework for the systematic production of Community statistics concerning balance of payments, international trade in services and foreign direct investment.

(2)

Commission Regulation (EC) No 1055/2008 (2) laid down the common quality criteria and the periodicity of quality reports for balance-of-payments statistics.

(3)

The common quality criteria and the periodicity of the quality reports for balance-of-payments statistics need to be adapted, in order to reflect the quality criteria laid down in Article 12(1) of Regulation (EC) No 223/2009 of the European Parliament and of the Council (3) on European statistics.

(4)

Regulation (EC) No 1055/2008 should therefore be amended accordingly.

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Balance of Payments Committee,

1.

Article 2 is replaced by the following:

‘Member States shall supply their quality report not later than 31 May every year.’;

2.

the Annex is replaced by the Annex to this Regulation.

21.12.2010   

EN

Official Journal of the European Union

L 336/17

(1)

Regulation (EEC) No 2658/87 established the Combined Nomenclature (CN) to meet the requirements of the Common Customs Tariff, the external trade statistics of the Union, and other Union policies concerning the imports or exports of goods.

(2)

Council Regulation (EC) No 1186/2009 of 16 November 2009 setting up a Community system of reliefs from customs duty (2) applies to cases where taxation is not justified.

(3)

In certain circumstances, taking into account the special nature of some of the movements of goods mentioned in Regulation (EC) No 1186/2009, it seems appropriate to reduce the administrative burden when declaring such movements, by assigning them a specific CN code. It is the case, in particular, when the classification of each type of goods in a movement for the purpose of drawing up the customs declaration would entail a workload and expense disproportionate to the interests at stake.

(4)

Commission Regulation (EU) No 113/2010 οf 9 February 2010 implementing Regulation (EC) No 471/2009 of the European Parliament and of the Council on Community statistics relating to external trade with non-member countries, as regards trade coverage, definition of the data, compilation of statistics on trade by business characteristics and by invoicing currency, and specific goods or movements (3) and Commission Regulation (EC) No 1982/2004 of 18 November 2004 implementing Regulation (EC) No 638/2004 of the European Parliament and of the Council on Community statistics relating to the trading of goods between Member States and repealing Commission Regulations (EC) No 1901/2000 and (EEC) No 3590/92 (4) allow the Member States to use a simplified coding system for certain goods in the extra-EU and intra-EU trade statistics.

(5)

Those regulations provide for specific goods codes to be used under special conditions. For the sake of transparency as well as for information purposes, such codes should be mentioned in the CN.

(6)

For these reasons, it is appropriate to insert Chapter 99 in the CN.

(7)

Annex I to Regulation (EEC) No 2658/87 should therefore be amended accordingly.

(8)

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

21.12.2010   

EN

Official Journal of the European Union

L 336/20

21.12.2010   

EN

Official Journal of the European Union

L 336/22

(1)

The representative prices and additional duties applicable to imports of white sugar, raw sugar and certain syrups for the 2010/11 marketing year are fixed by Commission Regulation (EU) No 867/2010 (3). These prices and duties have been last amended by Commission Regulation (EU) No 1184/2010 (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,

21.12.2010   

EN

Official Journal of the European Union

L 336/24

(1)

Council Regulation (EC) No 1407/2002 of 23 July 2002 on State aid to the coal industry (2) expires on 31 December 2010.

(2)

The small contribution of subsidised coal to the overall energy mix no longer justifies the maintenance of such subsidies for securing the supply of energy in the Union.

(3)

The Union’s policy of encouraging renewable energy sources and a sustainable and safe low-carbon economy does not justify the indefinite support for uncompetitive coal mines. The categories of aid permitted by Regulation (EC) No 1407/2002 should therefore not be continued indefinitely.

(4)

However, in the absence of sector-specific State aid rules, only the general State aid rules apply to coal. In this context, uncompetitive coal mines, currently benefiting from aid under Regulation (EC) No 1407/2002, may no longer be eligible for aid and may be forced to close.

(5)

Without prejudice to the general State aid rules, Member States should be able to take measures to alleviate the social and regional consequences of the closure of those mines, that is to say the orderly winding down of activities in the context of an irrevocable closure plan and/or the financing of exceptional costs, in particular inherited liabilities.

(6)

This Decision marks the transition, for the coal sector, from the application of sector-specific rules to the application of general State aid rules which are applicable to all sectors.

(7)

In order to minimise the distortion of competition in the internal market resulting from State aid to facilitate the closure of uncompetitive coal mines, such aid should be degressive and strictly limited to coal production units that are irrevocably planned for closure.

(8)

In order to mitigate the environmental impact of the production of coal by coal production units to which closure aid is granted, the Member States should establish a plan of appropriate measures, for example in the field of energy efficiency, renewable energy or carbon capture and storage.

(9)

Undertakings should be eligible for aid to cover costs which, in accordance with normal accounting practice, do not directly affect the cost of production. Such aid is intended to cover exceptional costs that arise from the closure of their coal production units. In order to avoid such aid from unduly benefiting undertakings that close only some of their production sites, the undertakings concerned should keep separate accounts for each of their coal production units.

(10)

In accomplishing its task under this Decision, the Commission should ensure that normal conditions of competition are established, maintained and complied with. With regard, more especially, to the electricity market, aid to the coal industry should not be such as to affect electricity producers’ choice of sources of primary energy supply. Consequently, the prices and quantities of coal should be freely agreed between the contracting parties in the light of prevailing conditions on the world market.

(11)

The application of this Decision should not exclude that aid to the coal industry may be found compatible with the internal market on other grounds. In this context, other specific rules, in particular those concerning aid for research, development and innovation, aid for environmental protection and aid for training activities, continue to apply within the limits of the maximum aid intensities, unless they provide otherwise.

(12)

The Commission should assess the measures notified on the basis of this Decision and take decisions in accordance with Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (3).

(13)

To avoid any discontinuity between measures envisaged in Regulation (EC) No 1407/2002 and the measures foreseen in this Decision, this Decision should apply from 1 January 2011,

(a)

‘coal’ means high-grade, medium-grade and low-grade category A and B coal within the meaning of the international codification system for coal laid down by the United Nations Economic Commission for Europe (4);

(b)

‘closure’ means the permanent cessation of production and sale of coal;

(c)

‘closure plan’ means a plan drawn up by a Member State providing for measures culminating in the definitive closure of coal production units;

(d)

‘coal production unit’ means underground or opencast coal workings and related infrastructure capable of producing raw coal independently of other parts of the undertaking;

(e)

‘coal year’ means calendar year or another 12-month period used as a reference for contracts in the coal industry;

(f)

‘production costs’ means total costs related to current production, including mining operations, operations for the dressing of coal, in particular washing, sizing and sorting, and transport to the utilization point, normal depreciation and market-based interest charges on borrowed capital;

(g)

‘current production losses’ means the positive difference between the coal production cost and the selling price at utilisation point freely agreed between the contracting parties in the light of the conditions prevailing on the world market.

(a)

the operation of the coal production units concerned must form part of a closure plan the deadline of which does not extend beyond 31 December 2018;

(b)

the coal production units concerned must be closed definitively in accordance with the closure plan;

(c)

the aid notified must not exceed the difference between the foreseeable production costs and the foreseeable revenue for a coal year. The aid actually paid must be subject to annual correction, based on the actual costs and revenue, at the latest by the end of the coal production year following the year for which the aid was granted;

(d)

the amount of aid per tonne coal equivalent must not cause prices for Union coal at utilisation point to be lower than those for coal of a similar quality from third countries;

(e)

the coal production units concerned must have been in activity on 31 December 2009;

(f)

the overall amount of closure aid granted by a Member State must follow a downward trend: by the end of 2013 the reduction must not be less than 25 %, by the end of 2015 not less than 40 %, by the end of 2016 not less than 60 % and by the end of 2017 not less than 75 % of the aid granted in 2011;

(g)

the overall amount of closure aid to the coal industry of a Member State must not exceed, for any year after 2010, the amount of aid granted by that Member State and authorised by the Commission in accordance with Articles 4 and 5 of Regulation (EC) No 1407/2002 for the year 2010;

(h)

the Member States must establish a plan to take measures aimed at mitigating the environmental impact of the production of coal by production units to which aid is granted pursuant to this Article, for example in the field of energy efficiency, renewable energy or carbon capture and storage.

(a)

the costs incurred and cost provisions made only by undertakings which are closing or have closed coal production units, including undertakings benefiting from closure aid;

(b)

the costs incurred by several undertakings.

(a)

identification of the coal production units;

(b)

the real or estimated production costs for each coal production unit per coal year;

(c)

estimated coal production, per coal year, of coal production units forming the subject of a closure plan;

(d)

the estimated amount of closure aid per coal year.

21.12.2010   

EN

Official Journal of the European Union

L 336/30

(1)

On 14 May 2008, the Council adopted Common Position 2008/369/CFSP concerning restrictive measures against the Democratic Republic of the Congo (1) following the adoption by the United Nations Security Council on 31 March 2008 of Resolution 1807 (2008) (‘UNSCR 1807 (2008)’).

(2)

On 1 December 2010, the Sanctions Committee established pursuant to United Nations Security Council Resolution 1533 (2004) (‘UNSCR 1533 (2004)’) amended the list of persons and entities which are subject to restrictive measures.

(3)

The procedure for amending the Annex to this Decision should include providing to designated persons and entities the grounds for listing so as to give them an opportunity to present observations. Where observations are submitted or where substantial new evidence is presented, the Council should review its decision in the light of those observations and inform the person or entity concerned accordingly.

(4)

This Decision respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and notably the right to an effective remedy and to a fair trial, the right to property and the right to the protection of personal data. This Decision should be applied in accordance with those rights and principles.

(5)

This Decision also fully respects the obligations of Member States under the Charter of the United Nations and the legally binding nature of Security Council resolutions.

(6)

Common Position 2008/369/CFSP should therefore be repealed and replaced by this Decision.

(7)

The Union implementing measures are set out in Council Regulation (EC) No 889/2005 of 13 June 2005 imposing certain restrictive measures in respect of the Democratic Republic of the Congo (2) and Council Regulation (EC) No 1183/2005 of 18 July 2005 imposing certain specific restrictive measures directed against persons acting in violation of the arms embargo with regard to the Democratic Republic of the Congo (3),

(a)

grant, sell, supply or transfer technical assistance, brokering services and other services related to military activities and to the provision, manufacture, maintenance and use of arms and related materiel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment, and spare parts for the aforementioned, directly or indirectly to all non-governmental entities and individuals operating in the territory of the DRC;

(b)

provide financing or financial assistance related to military activities, including in particular grants, loans and export credit insurance, for any sale, supply, transfer or export of arms and related materiel, or for any grant, sale, supply, or transfer of related technical assistance, brokering services and other services, directly or indirectly to all non-governmental entities and individuals operating in the territory of the DRC.

(a)

the supply, sale or transfer of arms and any related materiel or the provision of technical assistance, financing, brokering services and other services related to arms and related materiel intended solely for support of, or use by, the United Nations Organisation Mission in the DRC (MONUC);

(b)

the supply, sale or transfer of protective clothing, including flak jackets and military helmets, temporarily exported to the DRC by United Nations personnel, representatives of the media and humanitarian and development workers and associated personnel, for their personal use only;

(c)

the supply, sale or transfer of non-lethal military equipment intended solely for humanitarian or protective use, or the provision of technical assistance and training, related to such non-lethal equipment.

—

persons or entities acting in violation of the arms embargo and related measures as referred to in Article 1,

—

political and military leaders of foreign armed groups operating in the DRC who impede the disarmament and the voluntary repatriation or resettlement of combatants belonging to those groups,

—

political and military leaders of Congolese militias receiving support from outside the DRC, who impede the participation of their combatants in disarmament, demobilisation and reintegration processes,

—

political and military leaders operating in the DRC and recruiting or using children in armed conflicts in violation of applicable international law,

—

individuals operating in the DRC and committing serious violations of international law involving the targeting of children or women in situations of armed conflict, including killing and maiming, sexual violence, abduction and forced displacement,

—

individuals obstructing the access to or the distribution of humanitarian assistance in the eastern part of the DRC,

—

individuals or entities supporting the illegal armed groups in the eastern part of the DRC through illicit trade of natural resources.

(a)

determines in advance and on a case-by-case basis that such entry or transit is justified on the grounds of humanitarian need, including religious obligation,

(b)

concludes that an exemption would further the objectives of relevant resolutions of the Security Council, that is to say peace and national reconciliation in the DRC and stability in the region,

(c)

authorises in advance and on a case-by-case basis, the transit of individuals returning to the territory of the State of their nationality, or participating in efforts to bring to justice perpetrators of grave violations of human rights or international humanitarian law.

(a)

necessary for basic expenses, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

(b)

intended exclusively for the payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services;

(c)

intended exclusively for the payment of fees or service charges, in accordance with national laws, for routine holding or maintenance of frozen funds, or other financial assets and economic resources;

(d)

necessary for extraordinary expenses, after notification by the Member State concerned to, and approval by, the Sanctions Committee;

(e)

the subject of a judicial, administrative or arbitral lien or judgment, in which case the funds, other financial assets and economic resources may be used to satisfy that lien or judgment provided that the lien or judgment was entered before designation by the Sanctions Committee of the person or entity concerned, and is not for the benefit of a person or entity referred to in Article 3, after notification by the Member State concerned to the Sanctions Committee.

(a)

interest or other earnings on those accounts; or

(b)

payments due under contracts, agreements or obligations that were concluded or arose before the date on which those accounts became subject to restrictive measures,

21.12.2010   

EN

Official Journal of the European Union

L 336/43

(1)

Following a complaint submitted on 23 April 2007, the Commission decided to initiate an investigation concerning alleged State aid granted by Belgium to cover costs associated with the removal and destruction of fallen stock on agricultural holdings in the Walloon Region.

(2)

On 2 July 2007 the Commission sent a letter to the Belgian authorities, asking for information on the measure in question. The Belgian authorities provided information by letter of 27 July 2007, registered on 3 August 2007. At the request of the competent Belgian authorities a technical meeting was held on 21 August 2007. Following the meeting, the Belgian authorities provided, on 4 October 2007, additional information concerning the case.

(3)

By letter of 10 September 2007, the Commission services informed Belgium that the aid scheme was included in the register of non-notified aid, under No NN 56/2007, as part of the funds had clearly already been paid out.

(4)

At the request of the competent Belgian authorities a second technical meeting was held on 12 October 2007.

(5)

By letter of 25 October 2007 the Commission services asked the Belgian authorities to provide further information. As no reply was received within the prescribed time limit, a reminder letter was sent to the Belgian authorities on 21 December 2007 with a new prescribed time limit to reply.

(6)

On 4 June 2008, not having received a reply to the first reminder letter within the prescribed time limit, the Commission services sent a new reminder letter drawing the attention of the Belgian authorities to the fact that if the four-week time limit assigned for the sending of a reply was not complied with, the Commission could send an information injunction according to Article 10(2) and (3) 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 (4). This time limit expired on 4 July 2008. For this reason, on 1 October 2008 the Commission adopted a decision requiring the Belgian authorities to provide the relevant information. In this Decision, the Commission requested the Belgian authorities to submit, inter alia, the relevant information sheets, as provided for in Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (5) for the assessment of the aid granted after 31 January 2007.

(7)

The Belgian authorities finally replied by letter of 27 November 2008 and sent additional information on 5 December 2008. However, they did not provide the information sheets as required in the Decision of the Commission of 1 October 2008.

(8)

On 27 January 2009, the Commission sent the Belgian authorities a request for additional information. The Belgian authorities replied to this request by letter of 16 March 2009, registered on 19 March 2009.

(9)

By letter of 14 January 2010, the Commission informed Belgium that it had decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (‘TFEU’) in respect of the notified aid. The Commission decision to initiate the procedure was published in the Official Journal of the European Union on 15 July 2010. The Commission invited interested parties to submit their comments on the measures concerned. No third party submitted comments.

(10)

By letter of 19 February 2010 the Belgian authorities requested that the deadline for replying set in the Commission letter of 14 January 2010 be extended by a further month. By letter of 5 March 2010 the Commission granted an extension of 1 month. Lastly, by letter of 12 March 2010 the Belgian authorities responded to the decision to initiate the procedure.

(11)

During the Commission’s investigation it became clear that the complaint relates to the implementation of the aid scheme approved by the Commission on 26 November 2003, in State aid case NN 48/2003 (ex. N. 157/2003) entitled ‘Management of removal and destruction of fallen stock on agricultural holdings in the Walloon Region’. This case concerned a scheme notified by the Belgian authorities, whereby the Belgian State would grant, through subsided services, aid to agricultural holdings covering all costs relating to the removal, storage, processing and destruction of fallen stock.

(12)

In order for the clearance decision to be adopted, and in view of the imminent entry into force of the Community Guidelines for State aid concerning TSE tests, fallen stock and slaughterhouse waste (‘the TSE Guidelines’) (6) on 1 January 2004, the Belgian authorities committed themselves to amending their scheme. These amendments were necessary so as to comply with the conditions of the TSE Guidelines, and more specifically point 29 thereof. This point provided that Member States may grant State aid of up to 100 % of costs for the removal of fallen stock and 75 % of the costs of destruction of the carcasses. The Belgian scheme, as notified, was not in compliance with this provision, since it provided that the aid could cover 100 % of the costs of destruction of the carcasses.

(13)

Following the considerations mentioned in recitals (11) and (12) the Belgian authorities committed themselves (see recitals (33) and (34) of the Commission Decision in case No NN 48/2003) to amending their aid scheme accordingly so that from 1 January 2004, the aid provided for to cover the costs for the destruction of the carcasses would be covered only up to 75 % and not 100 %. The Belgian authorities also committed themselves to sending the Commission, at the latest by mid December 2003, evidence that the necessary changes had been made to the aid scheme.

(14)

Based on these commitments, the Commission approved this scheme for a duration of 5 years, beginning on 31 January 2002. This period therefore expired on 31 January 2007.

(15)

On 23 April 2007, the Commission received a complaint alleging that the Belgian authorities were in breach of the TSE Guidelines by continuing to grant aid of up to 100 % for both the removal of fallen stock and the destruction of carcasses.

(16)

The aid scheme in question concerns a regional measure aiming at covering all the costs for the provision of services for the removal, transport, storage, processing and destruction of fallen stock found on agricultural holdings located in the Walloon Region.

(17)

The organisation and management of the elimination of the carcasses found on the agricultural holdings has been organised through the award by the regional authorities of a service procurement contract. Following a general call for tender launched at European Union level by means of notice of a service procurement contract (7), the contract was awarded on 31 January 2002 to the company S.A. RENDAC-UDES. It was divided into three separate lots, which corresponded to the different services to be provided.

(18)

The only company that submitted a bid in the framework of this call for tender was S.A. RENDAC-UDES, and it did so for all three lots. Therefore, the contract was awarded to this company on 31 January 2002, for a period of 5 years. According to the information that the Belgian authorities have submitted, the validity of the contract was extended at least four times: up to 31 December 2007, up to 31 December 2008, up to 30 June 2009 and finally up to the future implementation of the new procurement contract which, according to the Belgian authorities, should be operational by the third quarter of 2010.

(19)

The aid scheme in question involves aid to owners of agricultural holdings. The Belgian authorities confirmed that although the aid was granted directly to the company S.A. RENDAC-UDES, as a service provider, for the costs of the services provided to owners of agricultural holdings, it was fully passed through to the farmers in order to cover all the costs linked to different activities of collection, transport, storage, processing and destruction, that they would otherwise have to bear. The Belgian authorities also confirmed that as regards the amounts paid directly to the company S.A. RENDAC-UDES for the costs for the services provided to owners of agricultural holdings, these corresponded entirely and uniquely to the market prices for the services provided.

(20)

The Walloon waste office (Office wallon des déchets), a service within the regional Ministry for the Environment, was in charge of paying the invoices presented by S.A. RENDAC-UDES, partly on a flat-rate basis and partly on the basis of price schedules.

(21)

In the framework of the examination of Case No NN 48/2003, the Belgian authorities have confirmed that the scheme concerns only fallen stock on agricultural holdings in the Walloon Region. It does not concern animal carcasses found in animal markets or slaughterhouses.

(22)

In its decision of 13 January 2010 to initiate an investigation procedure, the Commission expressed doubts as to the compatibility of the aid scheme with the EU State aid rules. More precisely the Commission concluded that the aid scheme measures in question aiming to cover more than 75 % of the costs of destroying carcasses, can be considered to be incompatible with the internal market on the basis of the TSE Guidelines and the Community Guidelines concerning State aid in the agricultural and forestry sector 2007-2013 (‘the 2007-2013 Guidelines’) (8).

(23)

In addition, given that the Commission approved the aid scheme until 31 January 2007 on the basis of the Belgian authorities’ commitments to amend the scheme so as to meet the conditions of the TSE Guidelines as of 1 January 2004 and these commitments were not complied with by the Belgian authorities, the Commission has concluded that the aid granted for measures aiming to cover more than 75 % of the costs for the destruction of the carcasses was misused.

(24)

Therefore, in accordance with Article 4(4) of Regulation (EC) No 659/1999, and in conjunction with Article 16 of this Regulation concerning misuse of aid, the Commission has decided to initiate the formal investigation procedure and has invited Belgium to submit its comments.

(25)

In its reply of 12 March 2010 Belgium informed the Commission that it would take the required measures to implement a new service procurement contract. According to the Belgian authorities, the specifications intended to govern the future service procurement contract was due to be finalised by 15 April 2010 at the latest and it should be operational by the third quarter of 2010. The Belgian authorities have since claimed that the service procurement contract implemented on 31 January 2002 has been extended by means of an amendment subject to the same conditions as those applicable when it was awarded on 31 January 2002.

(26)

Moreover, the Belgian authorities have also claimed that (i) the Walloon Region will request the application of the de minimis principle in order to settle the situation of owners of agricultural holdings for the period of 1 January 2004 to 30 June 2008, and (ii) that within a maximum of 3 months it will recover from each owner of an agricultural holding an amount corresponding to 25 % of the costs of the processing and destruction of fallen stock, calculated for the period from 1 July 2008 to the date of entry into force of the next public contract.

(27)

Finally, the Belgian authorities have informed the Commission that they would require the recovery of de minimis aid amounts on the basis of Commission Regulation (EC) No 1860/2004 of 6 October 2004 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the agriculture sector (9) exceeding EUR 3 000 over a period of 3 years. The Belgian authorities have also indicated that the maximum admissible amount of EUR 3 000 would have been exceeded for 58 owners of agricultural holdings.

(28)

According to Article 107(1) of the TFEU, 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 internal market.

(29)

These conditions are fulfilled in the present case with regard to aid in favour of the owners of agricultural holdings. The aid in question is granted by the public authorities of the Walloon Region and confers an advantage to owners of agricultural holdings in the Walloon Region, by eliminating the costs for the removal and destruction of carcasses, which in normal circumstances should have been borne by themselves.

(30)

According to the case law of the Court of Justice of the European Union, the mere fact that the competitive position of an undertaking is strengthened compared to other competing undertakings, by giving it an economic benefit which it would not otherwise have received in the normal course of its business, points to a possible distortion of competition (10).

(31)

Aid to an undertaking is considered to affect trade between Member States where that undertaking operates in a market open to trade within the European Union (11). There is substantial trade in the sector concerned within the European Union. Therefore, the present measure is liable to affect trade between Member States.

(32)

In view of the above, it is obvious that the conditions of Article 107(1) of the TFEU are fulfilled, except for aid to which the de minimis legislation applies.

(33)

On several occasions the Belgian authorities have claimed that they have applied the de minimis rules which apply to the agricultural sector. The rules which apply during the period for granting the aid are Regulation (EC) No 1860/2004, and Commission Regulation (EC) No 1535/2007 of 20 December 2007 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid in the sector of agricultural production (12), which repealed Regulation (EC) No 1860/2004.

(34)

Aid which fulfils the conditions for the application of Regulation (EC) No 1860/2004 or Regulation (EC) No 1535/2007 is considered not to fulfil all the criteria contained in Article 107(1) of the TFEU.

(35)

According to Article 3(7) of Regulation (EC) No 1535/2007, de minimis aid cannot be cumulated with State aid in respect of the same eligible costs, if such cumulation would result in an aid intensity exceeding that laid down by European Union rules in the specific circumstances of each case. This provision applies in this case: there can be no cumulation of de minimis aid (which would represent 25 % of the costs for the destruction of carcasses that should be borne by the owners of agricultural holdings) with the remaining 75 % which according to European Union rules (point 133 of the 2007-2013 Guidelines in combination with Article 16(1)(d) of Commission Regulation (EC) No 1857/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to State aid to small and medium-sized enterprises active in the production of agricultural products and amending Regulation (EC) No 70/2001 (13)) can be considered compatible with Article 107(3)(c) of the TFEU.

(36)

However, according to the scheme laid down in Regulation (EC) No 1860/2004, it appears that a cumulation of the de minimis aid and the amounts making up 75 % of the costs of the destruction of carcasses was not excluded. This can be inferred by recital 7 of Regulation (EC) No 1860/2004, according to which ‘The de minimus rule is without prejudice to the possibility that enterprises may receive, for the same project, State aid authorised by the Commission or covered by a group exemption Regulation’. The conditions for applying the Regulation and in particular the maximum aid threshold of EUR 3 000 must be fulfilled, so that any aid in excess of the EUR 3 000 threshold cannot benefit from Regulation (EC) No 1860/2004 for the whole of the aid amount. In accordance with Article 6(2) of Regulation (EC) No 1535/2007, this cumulation would be possible up to 6 months after the entry into force of the Regulation, that is until 30 June 2008. After this date the provisions of Regulation (EC) No 1535/2007 will apply.

(37)

The aid scheme, approved by the Commission under case No NN 48/2003 has been notified and approved for the period between 31 January 2003 and 31 January 2007. However, the Commission notes that although Belgium continued to apply the aid scheme after 1 February 2007, it failed to notify it to the Commission in accordance with Article 108(3) of the TFEU. The aid scheme therefore became an illegal State aid after 1 February 2007.

(38)

Article 107(3)(c) of the TFEU provides that aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest, may be considered to be compatible with the internal market.

(39)

The scheme in question concerns the granting of aid, which takes the form of subsidised services, covering all the costs for services relating to the removal, transportation, processing and destruction of fallen stock on agricultural holdings in the Walloon Region.

(40)

As regards the period between 31 January 2002 until 31 December 2003, the Commission Decision in case No NN 48/2003 found that the scheme could benefit from the derogation of Article 107(3)(c) of the TFEU. However, as explained above, for the period after 1 January 2004, the Belgian authorities committed themselves to amending the notified State aid scheme so that it complies with the TSE Guidelines as applicable from 1 January 2004. In particular, they committed themselves to ensuring that the aid would cover only 75 % of the costs for the destruction of the carcasses (the remaining costs having to be borne by the owner of the agricultural holding himself) and to sending the Commission, at the latest by mid December 2003, evidence that the necessary changes had been made to the aid scheme.

(41)

This was a requirement imposed by the TSE Guidelines, which was the text applicable at the time. In point 29, the TSE Guidelines provided that:

(42)

Points 30 and 31 of the TSE Guidelines provided exceptions to the rule that the aid may cover only up to 75 % of the costs of destroying the fallen stock:

(43)

It is to be noted, that within the framework of the examination of Case NN 48/2003, the Belgian authorities did at no time argue that one of these exceptions could apply.

(44)

The TSE Guidelines were revoked on 1 January 2007, as provided for in point 194 c) of the 2007-2013 Guidelines. Point 134 of the 2007-2013 Guidelines states that the Commission declares State aid concerning TSE tests and fallen stock compatible with Article 108(3)(c) of the TFEU, if it fulfils all the conditions of Article 16 of Regulation (EC) No 1857/2006.

(45)

Article 16 of the Regulation (EC) No 1857/2006 does not alter the substance as regards the assessment of aid granted for the removal and destruction of fallen stock. As was the case in the TSE Guidelines, it stipulates that aid at a rate of up to 100 % of costs of removal of fallen stock and 75 % of the costs of destruction of such carcasses shall be deemed compatible with the internal market (Article 16(1)(d)). The provisions of Article 16(1)(e) and 16(1)(f) provide for the possibility of derogating from the 75 % ceiling, whereby the aid rate can be increased to 100 %, when: (i) the aid is financed through fees or through compulsory contributions destined for the financing of the destruction of such carcasses, provided that such fees or contributions are limited to and directly imposed on the meat sector; or (ii) there is an obligation to carry out a TSE test on fallen stock.

(46)

Since the situation has not been changed in terms of the substance under the new rules (2007-2013 Guidelines and Regulation (EC) No 1857/2006) as compared to the old rules (the TSE Guidelines), the assessment of the case as regards the applicable European Union rules should be the same for the whole of the period concerned (1 January 2004 – present).

(47)

As emphasised above, the Belgian authorities had committed themselves, in the framework of the examination of Case No NN 48/2003, to amending their aid scheme in a way that from 1 January 2004, the aid provided for to cover the costs for the destruction of the carcasses would not exceed 75 % of those costs. However, during the investigation of the present case, the Belgian authorities did not deny that the State aid scheme had not been amended as they had promised.

(48)

In addition, the Belgian authorities have argued on several occasions (for instance in the letter dated 27 November 2008) that the second of the exceptions mentioned in recital 42 can indeed apply and that the aid can cover up to 100 % of the costs for the destruction of the carcasses. The reason, according to the Belgian authorities, was that there was an obligation to perform TSE tests on all fallen stock (Point 31 of the TSE Guidelines, and Article 16(1)(f) of Regulation (EC) No 1857/2006. However, they have not submitted evidence in support of this claim.

(49)

The main argument that Belgium brings in support of its claim is that it is obliged to perform such tests, in application of 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 (14). However, this argument cannot be accepted. The reason is that in application of this Regulation, the Walloon authorities have the obligation to test fallen stock for TSE as follows:

(50)

Therefore, the obligation to perform tests applies only for animals of a certain age (24 months for the period 1 July 2001-31 December 2008 and 48 months after that). More importantly the obligation applies only for bovine animals. Animals of other fallen species on the holding (pigs, horses, poultry etc.) do not have to be compulsorily subjected to TSE tests. From the information provided by the Belgian authorities (letter dated 27 November 2008) it appears that the number of carcasses that might be affected by this exemption under the provisions of Regulation (EC) No 999/2001 represents less than 20 % - 25 % of the total costs for the fallen stock processed within the framework of the service contract. Therefore only aid related to costs which are strictly linked to the obligation to carry out the TSE tests, as provided for by Regulation (EC) No 999/2001 may be declared compatible, on the condition that these costs can be quantified precisely.

(51)

The Commission also notes that the first exception allowing for the costs of removing and destroying carcasses to be covered up to 100 % by means of advance payments and compulsory contributions in the meat sector is not applicable in this case. The Belgian authorities have never invoked the applicability of this exception nor provided any evidence supporting it.

(52)

In the light of the above, the Commission concludes that the measures under the aid scheme in question aiming to cover more than 75 % of the costs of destroying the carcasses are not compatible with the internal market on the basis of the TSE Guidelines or the Guidelines for 2007-2013, with the exception of the costs which are directly linked to processing animal carcasses for which there is an obligation to carry out TSE tests.

(53)

In addition, given that the Commission has approved the aid scheme until 31 January 2007 on the basis of the commitments of the Belgian authorities to amend the scheme so as to comply with the conditions of the TSE Guidelines as of 1 January 2004, and these commitments were not complied with by the Belgian authorities, the Commission concludes that the aid to cover more than 75 % of the costs for the destruction of the carcasses was misused, at least with regard to the aid which is not intended to compensate the obligation to carry out TSE tests.

(54)

In accordance with Article 14(1) of Regulation (EC) No 659/1999, where an illegally granted State aid is incompatible with the internal market it must be recovered from the beneficiaries. The purpose is achieved once the aid in question, together where appropriate with default interest, has been repaid by the recipients or, in other words, by the undertakings which actually benefited from it.

(55)

This Decision must be implemented immediately, particularly with regard to the recovery of all the individual aid granted under the scheme, apart from that granted for specific projects which, at the time the aid was granted, fulfilled all the conditions set out in the De minimis Regulation or the exemption applicable on the basis of Articles 1 and 2 of Council Regulation (EC) No 994/98 of 7 May 1998 on the application of Articles 92 and 93 of the Treaty establishing the European Community to certain categories of horizontal State aid (15), or in an aid scheme approved by the Commission.

(56)

The Commission finds that Belgium has unlawfully implemented the aid in question in breach of Article 108(3) of the TFEU. As the aid is partially incompatible with the internal market, Belgium must bring it to an end and recover from the beneficiary the amounts already unlawfully paid.

21.12.2010   

EN

Official Journal of the European Union

L 336/50

(1)

In accordance with the first paragraph of Article 13 of Annex X to the Staff Regulations, the weightings to be applied from 1 July 2009 to the remuneration of officials, temporary staff and contract staff of the European Union serving in third countries payable in the currency of their country of employment were laid down by Council Regulation (EU) No 768/2010 (2).

(2)

Some of these weightings need to be adjusted in accordance with the second paragraph of Article 13 of Annex X to the Staff Regulations, with effect from 1 August 2009, 1 September 2009, 1 October 2009, 1 November 2009, 1 December 2009 and 1 January 2010, since the statistics available to the Commission show that in certain third countries the variation in the cost of living measured on the basis of the weighting and the corresponding exchange rate has exceeded 5 % since weightings were last laid down,