24.12.2013   

EN

Official Journal of the European Union

L 352/1

(1)

State funding meeting the criteria in Article 107(1) of the Treaty constitutes State aid and requires notification to the Commission by virtue of Article 108(3) of the Treaty. However, under Article 109 of the Treaty, the Council may determine categories of aid that are exempted from this notification requirement. In accordance with Article 108(4) of the Treaty the Commission may adopt regulations relating to those categories of State aid. By virtue of Regulation (EC) No 994/98 the Council decided, in accordance with Article 109 of the Treaty, that de minimis aid could constitute one such category. On that basis, de minimis aid, being aid granted to a single undertaking over a given period of time that does not exceed a certain fixed amount, is deemed not to meet all the criteria laid down in Article 107(1) of the Treaty and is therefore not subject to the notification procedure.

(2)

The Commission has, in numerous decisions, clarified the notion of aid within the meaning of Article 107(1) of the Treaty. The Commission has also stated its policy with regard to a de minimis ceiling below which Article 107(1) of the Treaty can be considered not to apply, initially in its notice on the de minimis rule for State aid (3) and subsequently in Commission Regulations (EC) No 69/2001 (4) and (EC) No 1998/2006 (5). In the light of the experience gained in applying Regulation (EC) No 1998/2006, it is appropriate to revise some of the conditions laid down in that Regulation and to replace it.

(3)

It is appropriate to maintain the ceiling of EUR 200 000 as the amount of de minimis aid that a single undertaking may receive per Member State over any period of three years. That ceiling remains necessary to ensure that any measure falling under this Regulation can be deemed not to have any effect on trade between Member States and not to distort or threaten to distort competition.

(4)

For the purposes of the rules on competition laid down in the Treaty an undertaking is any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (6). The Court of Justice of the European Union has ruled that all entities which are controlled (on a legal or on a de facto basis) by the same entity should be considered as a single undertaking (7). For the sake of legal certainty and to reduce the administrative burden, this Regulation should provide an exhaustive list of clear criteria for determining when two or more enterprises within the same Member State are to be considered as a single undertaking. The Commission has selected from the well-established criteria for defining ‘linked enterprises’ in the definition of small or medium-sized enterprises (SMEs) in Commission Recommendation 2003/361/EC (8) and in Annex I to Commission Regulation (EC) No 800/2008 (9) those criteria that are appropriate for the purposes of this Regulation. The criteria are already familiar to public authorities and should be applicable, given the scope of this Regulation, to both SMEs and large undertakings. Those criteria should ensure that a group of linked enterprises is considered as one single undertaking for the application of the de minimis rule, but that enterprises which have no relationship with each other except for the fact that each of them has a direct link to the same public body or bodies are not treated as being linked to each other. The specific situation of enterprises controlled by the same public body or bodies, which may have an independent power of decision, is therefore taken into account.

(5)

In order to take account of the small average size of undertakings active in the road freight transport sector, it is appropriate to maintain the ceiling of EUR 100 000 for undertakings performing road freight transport for hire or reward. The provision of an integrated service where the actual transportation is only one element, such as removal services, postal or courier services or waste collection or processing services, should not be considered a transport service. In view of the overcapacity in the road freight transport sector and the objectives of transport policy as regards road congestion and freight transport, aid for the acquisition of road freight transport vehicles by undertakings performing road freight transport for hire or reward should be excluded from the scope of application of this Regulation. In view of the development of the road passenger transport sector, it is no longer appropriate to apply a lower ceiling to this sector.

(6)

In view of the special rules which apply in the sectors of primary production of agricultural products, fishery and aquaculture and of the risk that amounts of aid below the ceiling laid down in this Regulation could nonetheless fulfil the criteria in Article 107(1) of the Treaty, this Regulation should not apply to those sectors.

(7)

Considering the similarities between the processing and marketing of agricultural products and of non-agricultural products, this Regulation should apply to the processing and marketing of agricultural products, provided that certain conditions are met. Neither on-farm activities necessary for preparing a product for the first sale, such as harvesting, cutting and threshing of cereals, or packing of eggs, nor the first sale to resellers or processors should be considered as processing or marketing in this respect.

(8)

The Court of Justice of the European Union has established that, once the Union has legislated for the establishment of a common organisation of the market in a given sector of agriculture, Member States are under an obligation to refrain from taking any measure which might undermine or create exceptions to it (10). For that reason, this Regulation should not apply to aid the amount of which is fixed on the basis of the price or quantity of products purchased or put on the market. Nor should it apply to support which is linked to an obligation to share the aid with primary producers.

(9)

This Regulation should not apply to export aid or aid contingent upon the use of domestic over imported products. In particular, it should not apply to aid financing the establishment and operation of a distribution network in other Member States or in third countries. Aid towards the costs of participating in trade fairs, or of studies or consultancy services needed for the launch of a new or existing product on a new market in another Member State or a third country does not normally constitute export aid.

(10)

The period of three years to be taken into account for the purposes of this Regulation should be assessed on a rolling basis so that, for each new grant of de minimis aid, the total amount of de minimis aid granted in the fiscal year concerned and during the previous two fiscal years needs to be taken into account.

(11)

Where an undertaking is active in sectors excluded from the scope of this Regulation and is also active in other sectors or has other activities, this Regulation should apply to those other sectors or activities provided that the Member State concerned ensures, by appropriate means such as separation of activities or distinction of costs, that the activities in the excluded sectors do not benefit from the de minimis aid. The same principle should apply where an undertaking is active in sectors to which lower de minimis ceilings apply. If it cannot be ensured that the activities in sectors to which lower de minimis ceilings apply benefit from de minimis aid only up to those lower ceilings, the lowest ceiling should apply to all activities of the undertaking.

(12)

This Regulation should lay down rules to ensure that it is not possible to circumvent maximum aid intensities laid down in specific regulations or Commission decisions. It should also provide for clear rules on cumulation that are easy to apply.

(13)

This Regulation does not exclude the possibility that a measure might be considered not to be State aid within the meaning of Article 107(1) of the Treaty on grounds other than those set out in this Regulation, for instance because the measure complies with the market economy operator principle or because the measure does not involve a transfer of State resources. In particular, Union funding centrally managed by the Commission which is not directly or indirectly under the control of the Member State does not constitute State aid and should not be taken into account in determining whether the relevant ceiling is complied with.

(14)

For the purposes of transparency, equal treatment and effective monitoring, this Regulation should apply only to de minimis aid for which it is possible to calculate precisely the gross grant equivalent ex ante without any need to undertake a risk assessment (‘transparent aid’). Such a precise calculation can, for instance, be made for grants, interest rate subsidies, capped tax exemptions or other instruments that provide for a cap ensuring that the relevant ceiling is not exceeded. Providing for a cap means that as long as the precise amount of aid is not or not yet known, the Member State has to assume that the amount equals the cap in order to ensure that several aid measures together do not exceed the ceiling set out in this Regulation and to apply the rules on cumulation.

(15)

For the purposes of transparency, equal treatment and the correct application of the de minimis ceiling, all Member States should apply the same method of calculation. In order to facilitate such calculation, aid amounts not taking the form of a cash grant should be converted into their gross grant equivalent. Calculation of the gross grant equivalent of transparent types of aid other than grants and of aid payable in several instalments requires the use of market interest rates prevailing at the time such aid is granted. With a view to uniform, transparent and simple application of the State aid rules, the market rates applicable for the purposes of this Regulation should be the reference rates, as set out in the Communication from the Commission on the revision of the method for setting the reference and discount rates (11).

(16)

Aid comprised in loans, including de minimis risk finance aid taking the form of loans, should be considered transparent de minimis aid if the gross grant equivalent has been calculated on the basis of market interest rates prevailing at the time the aid is granted. In order to simplify the treatment of small loans of short duration, this Regulation should provide for a clear rule that is easy to apply and takes into account both the amount of the loan and its duration. Based on the Commission’s experience, loans that are secured by collateral covering at least 50 % of the loan and that do not exceed either EUR 1 000 000 and a duration of five years or EUR 500 000 and a duration of 10 years can be considered as having a gross grant equivalent not exceeding the de minimis ceiling. Given the difficulties linked to determining the gross grant equivalent of aid granted to undertakings that may not be able to repay the loan, this rule should not apply to such undertakings.

(17)

Aid comprised in capital injections should not be considered as transparent de minimis aid, unless the total amount of the public injection does not exceed the de minimis ceiling. Aid comprised in risk finance measures taking the form of equity or quasi-equity investments, as referred to in the risk finance guidelines (12), should not be considered as transparent de minimis aid unless the measure concerned provides capital not exceeding the de minimis ceiling.

(18)

Aid comprised in guarantees, including de minimis risk finance aid taking the form of guarantees, should be considered as transparent if the gross grant equivalent has been calculated on the basis of safe-harbour premiums laid down in a Commission notice for the type of undertaking concerned (13). In order to simplify the treatment of guarantees of short duration securing up to 80 % of a relatively small loan, this Regulation should provide for a clear rule that is easy to apply and takes into account both the amount of the underlying loan and the duration of the guarantee. This rule should not apply to guarantees on underlying transactions not constituting a loan, such as guarantees on equity transactions. Where the guarantee does not exceed 80 % of the underlying loan, the amount guaranteed does not exceed EUR 1 500 000 and the duration of the guarantee does not exceed five years the guarantee can be considered as having a gross grant equivalent not exceeding the de minimis ceiling. The same applies where the guarantee does not exceed 80 % of the underlying loan, the amount guaranteed does not exceed EUR 750 000 and the duration of the guarantee does not exceed 10 years. In addition, Member States can use a methodology to calculate the gross grant equivalent of guarantees which has been notified to the Commission under another Commission Regulation in the State aid area applicable at that time and which has been accepted by the Commission as being in line with the Guarantee Notice, or any successor notice, provided that the accepted methodology explicitly addresses the type of guarantee and the type of underlying transaction at stake in the context of the application of this Regulation. Given the difficulties linked to determining the gross grant equivalent of aid granted to undertakings that may not be able to repay the loan, this rule should not apply to such undertakings.

(19)

Where a de minimis aid scheme is implemented through financial intermediaries, it should be ensured that the latter do not receive any State aid. This can be done, for example, by requiring financial intermediaries that benefit from a State guarantee to pay a market-conform premium or to fully pass on any advantage to the final beneficiaries, or by respecting the de minimis ceiling and other conditions of this Regulation also at the level of the intermediaries.

(20)

Upon notification by a Member State, the Commission may examine whether a measure which does not consist of a grant, loan, guarantee, capital injection or risk finance measure taking the form of an equity or quasi-equity investment leads to a gross grant equivalent that does not exceed the de minimis ceiling and could therefore fall within the scope of this Regulation.

(21)

The Commission has a duty to ensure that State aid rules are complied with and in accordance with the cooperation principle laid down in Article 4(3) of the Treaty on European Union, Member States should facilitate the fulfilment of this task by establishing the necessary tools in order to ensure that the total amount of de minimis aid granted to a single undertaking under the de minimis rule does not exceed the overall permissible ceiling. To that end, when granting de minimis aid, Member States should inform the undertaking concerned of the amount of de minimis aid granted and of its de minimis character and should make express reference to this Regulation. Member States should be required to monitor aid granted to ensure the relevant ceilings are not exceeded and the cumulation rules are complied with. To comply with that obligation, before granting such aid, the Member State concerned should obtain from the undertaking a declaration about other de minimis aid covered by this Regulation or by other de minimis regulations received during the fiscal year concerned and the previous two fiscal years. Alternatively it should be possible for Member States to set up a central register with complete information on de minimis aid granted and check that any new grant of aid does not exceed the relevant ceiling.

(22)

Before granting any new de minimis aid each Member State should verify that the de minimis ceiling will not be exceeded in that Member State by the new de minimis aid and that the other conditions of this Regulation are complied with.

(23)

Having regard to the Commission’s experience and in particular the frequency with which it is generally necessary to revise State aid policy, the period of application of this Regulation should be limited. If this Regulation expires without being extended, Member States should have an adjustment period of six months with regard to de minimis aid covered by this Regulation,

(a)

aid granted to undertakings active in the fishery and aquaculture sector, as covered by Council Regulation (EC) No 104/2000 (14);

(b)

aid granted to undertakings active in the primary production of agricultural products;

(c)

aid granted to undertakings active in the sector of processing and marketing of agricultural products, in the following cases:

(d)

aid to export-related activities towards third countries or Member States, namely aid directly linked to the quantities exported, to the establishment and operation of a distribution network or to other current expenditure linked to the export activity;

(e)

aid contingent upon the use of domestic over imported goods.

(a)

‘agricultural products’ means products listed in Annex I to the Treaty, with the exception of fishery and aquaculture products covered by Regulation (EC) No 104/2000;

(b)

‘processing of agricultural products’ means any operation on an agricultural product resulting in a product which is also an agricultural product, except on-farm activities necessary for preparing an animal or plant product for the first sale;

(c)

‘marketing of agricultural products’ means holding or display with a view to sale, offering for sale, delivery or any other manner of placing on the market, except the first sale by a primary producer to resellers or processors and any activity preparing a product for such first sale; a sale by a primary producer to final consumers shall be considered as marketing if it takes place in separate premises reserved for that purpose.

(a)

one enterprise has a majority of the shareholders’ or members’ voting rights in another enterprise;

(b)

one enterprise has the right to appoint or remove a majority of the members of the administrative, management or supervisory body of another enterprise;

(c)

one enterprise has the right to exercise a dominant influence over another enterprise pursuant to a contract entered into with that enterprise or to a provision in its memorandum or articles of association;

(d)

one enterprise, which is a shareholder in or member of another enterprise, controls alone, pursuant to an agreement with other shareholders in or members of that enterprise, a majority of shareholders’ or members’ voting rights in that enterprise.

(a)

the beneficiary is not subject to collective insolvency proceedings nor fulfils the criteria under its domestic law for being placed in collective insolvency proceedings at the request of its creditors. In case of large undertakings, the beneficiary shall be in a situation comparable to a credit rating of at least B-; and

(b)

the loan is secured by collateral covering at least 50 % of the loan and the loan amounts to either EUR 1 000 000 (or EUR 500 000 for undertakings performing road freight transport) over five years or EUR 500 000 (or EUR 250 000 for undertakings performing road freight transport) over 10 years; if a loan is for less than those amounts and/or is granted for a period of less than five or 10 years respectively, the gross grant equivalent of that loan shall be calculated as a corresponding proportion of the relevant ceiling laid down in Article 3(2); or

(c)

the gross grant equivalent has been calculated on the basis of the reference rate applicable at the time of the grant.

(a)

the beneficiary is not subject to collective insolvency proceedings nor fulfils the criteria under its domestic law for being placed in collective insolvency proceedings at the request of its creditors. In case of large undertakings, the beneficiary shall be in a situation comparable to a credit rating of at least B-; and

(b)

the guarantee does not exceed 80 % of the underlying loan and either the amount guaranteed is EUR 1 500 000 (or EUR 750 000 for undertakings performing road freight transport) and the duration of the guarantee is five years or the amount guaranteed is EUR 750 000 (or EUR 375 000 for undertakings performing road freight transport) and the duration of the guarantee is 10 years; if the amount guaranteed is lower than these amounts and/or the guarantee is for a period of less than five or 10 years respectively, the gross grant equivalent of that guarantee shall be calculated as a corresponding proportion of the relevant ceiling laid down in Article 3(2); or

(c)

the gross grant equivalent has been calculated on the basis of safe-harbour premiums laid down in a Commission notice; or

(d)

before implementation,

24.12.2013   

EN

Official Journal of the European Union

L 352/9

(1)

State funding meeting the criteria in Article 107(1) of the Treaty constitutes State aid and requires notification to the Commission by virtue of Article 108(3) of the Treaty. However, under Article 109 of the Treaty, the Council may determine categories of aid that are exempted from this notification requirement. In accordance with Article 108(4) of the Treaty, the Commission may adopt regulations relating to those categories of State aid. By virtue of Regulation (EC) No 994/98 the Council decided, in accordance with Article 109 of the Treaty, that de minimis aid could constitute one such category. On that basis, de minimis aid, being aid granted to a single undertaking over a given period of time that does not exceed a certain fixed amount, is deemed not to meet all the criteria laid down in Article 107(1) of the Treaty and is therefore not subject to the notification procedure.

(2)

The Commission has, in numerous decisions, clarified the notion of aid within the meaning of Article 107(1) of the Treaty. The Commission has also stated its policy with regard to a de minimis ceiling below which Article 107(1) of the Treaty can be considered not to apply, initially in its notice on the de minimis rule for State aid (3) and subsequently in Commission Regulations (EC) No 69/2001 (4) and (EC) No 1998/2006 (5). In view of the special rules which apply in the agriculture sector and of the risk that even low levels of aid could fulfil the criteria laid down in Article 107(1) of the Treaty, the agriculture sector or parts of it were excluded from the scope of those Regulations. The Commission has already adopted a number of Regulations providing rules on de minimis aid granted in the agriculture sector, the latest of which was Regulation (EC) No 1535/2007 (6). In the light of the experience gained in applying Regulation (EC) No 1535/2007, it is appropriate to revise some of the conditions laid down in that Regulation and to replace it.

(3)

In the light of the Commission’s experience in applying Regulation (EC) No 1535/2007, the maximum amount of aid to a single undertaking over a period of 3 years should be increased to EUR 15 000 and the national cap increased to 1 % of annual output. Those new ceilings still ensure that any measure falling under this Regulation can be deemed not to have any effect on trade between Member States and not to distort or threaten to distort competition.

(4)

For the purposes of the rules on competition laid down in the Treaty an undertaking is any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (7). The Court of Justice of the European Union has ruled that all entities which are controlled (on a legal or on a de facto basis) by the same entity should be considered as a single undertaking (8). For the sake of legal certainty and to reduce the administrative burden, this Regulation should provide an exhaustive list of clear criteria for determining when two or more enterprises within the same Member State are to be considered as a single undertaking. The Commission has selected from the well-established criteria for defining‘linked enterprises’ in the definition of small or medium-sized enterprises (SMEs) in Commission Recommendation 2003/361/EC (9) and in Annex I to Commission Regulation (EC) No 800/2008 (10) those criteria that are appropriate for the purposes of this Regulation. The criteria are already familiar to public authorities and should be applicable, given the scope of this Regulation, to both SMEs and large undertakings. Those criteria should ensure that a group of linked enterprises is considered as one single undertaking for the application of the de minimis rule, but that enterprises which have no relationship with each other except for the fact that each of them has a direct link to the same public body or bodies are not treated as being linked to each other. The specific situation of enterprises controlled by the same public body or bodies, which may have an independent power of decision, is therefore taken into account. Similarly, those criteria should ensure that individual members of a legal person or group of natural or legal persons are not, for that reason alone, treated as being linked where national law provides for such individual members to assume rights and obligations comparable to those of individual farmers who have the status of head of holding, in particular as regards their economic, social and tax status and where those individual members have contributed to strengthening the agricultural structures of the legal persons or groups concerned.

(5)

Considering the similarities between the processing and marketing of agricultural products and of non-agricultural products, processing and marketing of agricultural products are included in the scope of Commission Regulation (EU) No 1407/2013 (11).

(6)

The Court of Justice of the European Union has established that, once the Union has legislated for the establishment of a common organisation of the market in a given sector of agriculture, Member States are under an obligation to refrain from taking any measure which might undermine or create exceptions to it (12). For that reason, this Regulation should not apply to aid the amount of which is fixed on the basis of the price or quantity of products purchased or put on the market. Nor should it apply to support which is linked to an obligation to share the aid with primary producers.

(7)

This Regulation should not apply to export aid or aid contingent upon the use of domestic over imported products. In particular, it should not apply to aid financing the establishment and operation of a distribution network in other Member States or in third countries. Aid towards the costs of participating in trade fairs, or of studies or consultancy services needed for the launch of a new or existing product on a new market in another Member State or a third country does not normally constitute export aid.

(8)

The period of 3 years to be taken into account for the purposes of this Regulation should be assessed on a rolling basis so that, for each new grant of de minimis aid, the total amount of de minimis aid granted in the fiscal year concerned and during the previous 2 fiscal years needs to be taken into account.

(9)

Where an undertaking is active in the primary production of agricultural products and is also active in other sectors or has other activities falling within the scope of Regulation (EU) No 1407/2013, the provisions of that Regulation should apply to aid granted in respect of those other sectors or activities, provided that the Member State concerned ensures, by appropriate means such as separation of activities or distinction of costs, that the primary production of agricultural products does not benefit from de minimis aid granted in accordance with that Regulation.

(10)

Where an undertaking is active in the primary production of agricultural products as well as in the fishery and aquaculture sector, Commission Regulation (EC) No 875/2007 (13) should apply to aid granted in respect of the latter sector, provided that the Member State concerned ensures, by appropriate means such as separation of activities or distinction of costs, that the primary production of agricultural products does not benefit from de minimis aid granted in accordance with that Regulation.

(11)

This Regulation should lay down rules to ensure that it is not possible to circumvent maximum aid intensities laid down in specific regulations or Commission decisions. It should also provide for clear rules on cumulation that are easy to apply.

(12)

This Regulation does not exclude the possibility that a measure might be considered not to be State aid within the meaning of Article 107(1) of the Treaty on grounds other than those set out in this Regulation, for instance because the measure complies with the market economy operator principle or because the measure does not involve a transfer of State resources. In particular, Union funding centrally managed by the Commission which is not directly or indirectly under the control of the Member State, does not constitute State aid and should not be taken into account in determining whether the relevant ceiling or the national cap is respected.

(13)

For the purposes of transparency, equal treatment and effective monitoring, this Regulation should apply only to de minimis aid for which it is possible to calculate precisely the gross grant equivalent ex ante without any need to undertake a risk assessment (‘transparent aid’). Such a precise calculation can, for instance, be made for grants, interest rate subsidies, capped tax exemptions or other instruments that provide for a cap ensuring that the relevant ceiling is not exceeded. Providing for a cap means that as long as the precise amount of aid is not, or not yet, known, the Member State has to assume that the amount equals the cap in order to ensure that several aid measures together do not exceed the ceiling set out in this Regulation and to apply the rules on cumulation.

(14)

For the purposes of transparency, equal treatment and the correct application of the de minimis ceiling, all Member States should apply the same method of calculation. In order to facilitate such calculation, aid amounts not taking the form of a cash grant should be converted into their gross grant equivalent. Calculation of the gross grant equivalent of transparent types of aid other than grants and of aid payable in several instalments requires the use of market interest rates prevailing at the time such aid is granted. With a view to uniform, transparent and simple application of the State aid rules, the market rates applicable for the purposes of this Regulation should be the reference rates, as set out in the Communication from the Commission on the revision of the method for setting the reference and discount rates (14).

(15)

Aid comprised in loans, including de minimis risk finance aid taking the form of loans, should be considered transparent de minimis aid if the gross grant equivalent has been calculated on the basis of market interest rates prevailing at the time the aid is granted. In order to simplify the treatment of small loans of short duration, this Regulation should provide for a clear rule that is easy to apply and takes into account both the amount of the loan and its duration. Based on the Commission’s experience, loans that are secured by collateral covering at least 50 % of the loan and that do not exceed either EUR 75 000 and a duration of 5 years or EUR 37 500 and a duration of 10 years can be considered as having a gross grant equivalent not exceeding the de minimis ceiling. Given the difficulties linked to determining the gross grant equivalent of aid granted to undertakings that may not be able to repay the loan, this rule should not apply to such undertakings.

(16)

Aid comprised in capital injections should not be considered as transparent de minimis aid, unless the total amount of the public injection does not exceed the de minimis ceiling. Aid comprised in risk finance measures taking the form of equity or quasi-equity investments, as referred to in the risk finance guidelines (15), should not be considered as transparent de minimis aid unless the measure concerned provides capital not exceeding the de minimis ceiling.

(17)

Aid comprised in guarantees, including de minimis risk finance aid taking the form of guarantees, should be considered as transparent if the gross grant equivalent has been calculated on the basis of safe-harbour premiums laid down in a Commission notice for the type of undertaking concerned (16). In order to simplify the treatment of guarantees of short duration securing up to 80 % of a relatively small loan, this Regulation should provide for a clear rule that is easy to apply and takes into account both the amount of the underlying loan and the duration of the guarantee. This rule should not apply to guarantees on underlying transactions not constituting a loan, such as guarantees on equity transactions. Where the guarantee does not exceed 80 % of the underlying loan, the amount guaranteed does not exceed EUR 112 500 and the duration of the guarantee does not exceed 5 years the guarantee can be considered as having a gross grant equivalent not exceeding the de minimis ceiling. The same applies where the guarantee does not exceed 80 % of the underlying loan, the amount guaranteed does not exceed EUR 56 250 and the duration of the guarantee does not exceed 10 years. In addition, Member States can use a methodology to calculate the gross grant equivalent of guarantees which has been notified to the Commission under another Commission Regulation in the State aid area applicable at that time and which has been accepted by the Commission as being in line with the Guarantee Notice, or any successor notice, provided that the accepted methodology explicitly addresses the type of guarantee and the type of underlying transaction at stake in the context of the application of this Regulation. Given the difficulties linked to determining the gross grant equivalent of aid granted to undertakings that may not be able to repay the loan, this rule should not apply to such undertakings.

(18)

Where a de minimis aid scheme is implemented through financial intermediaries, it should be ensured that the latter do not receive any State aid. This can be done, for example by requiring financial intermediaries that benefit from a State guarantee to pay a market-conform premium or to fully pass on any advantage to the final beneficiaries, or by respecting the de minimis ceiling and other conditions of this Regulation also at the level of the intermediaries.

(19)

Upon notification by a Member State, the Commission may examine whether a measure which does not consist of a grant, loan, guarantee, capital injection or risk finance measure taking the form of an equity or quasi-equity investment, leads to a gross grant equivalent that does not exceed the de minimis ceiling and could therefore fall within the scope of this Regulation.

(20)

The Commission has a duty to ensure that State aid rules are complied with and in accordance with the cooperation principle laid down in Article 4(3) of the Treaty on European Union, Member States should facilitate the fulfilment of this task by establishing the necessary tools in order to ensure that the total amount of de minimis aid granted to a single undertaking under the de minimis rule does not exceed the overall permissible ceiling. To that end, when granting a de minimis aid, Member States should inform the undertaking concerned of the amount of de minimis aid granted and of its de minimis character and should make express reference to this Regulation. Member States should be required to monitor aid granted to ensure the relevant ceilings are not exceeded and the cumulation rules are complied with. To comply with that obligation, before granting such aid, the Member State concerned should obtain from the undertaking a declaration about other de minimis aid covered by this Regulation or by other de minimis regulations received during the fiscal year concerned and the previous 2 fiscal years. Alternatively it should be possible for Member States to set up a central register with complete information on de minimis aid granted and check that any new grant of aid does not exceed the relevant ceiling.

(21)

Before granting any new de minimis aid each Member State should verify that neither the de minimis ceiling nor the national cap will be exceeded in that Member State by the new de minimis aid and that the other conditions of this Regulation are complied with.

(22)

Having regard to the Commission’s experience and in particular the frequency with which it is generally necessary to revise State aid policy, the period of application of this Regulation should be limited. If this Regulation expires without being extended, Member States should have an adjustment period of 6 months with regard to de minimis aid covered by this Regulation,

(a)

aid the amount of which is fixed on the basis of the price or quantity of products put on the market;

(b)

aid to export-related activities towards third countries or Member States, namely aid directly linked to the quantities exported, to the establishment and operation of a distribution network or to other current expenditure linked to the export activity;

(c)

aid contingent upon the use of domestic over imported goods.

(a)

one enterprise has a majority of the shareholders’ or members’ voting rights in another enterprise;

(b)

one enterprise has the right to appoint or remove a majority of the members of the administrative, management or supervisory body of another enterprise;

(c)

one enterprise has the right to exercise a dominant influence over another enterprise pursuant to a contract entered into with that enterprise or to a provision in its memorandum or articles of association;

(d)

one enterprise, which is a shareholder in or member of another enterprise, controls alone, pursuant to an agreement with other shareholders in or members of that enterprise, a majority of shareholders’ or members’ voting rights in that enterprise.

(a)

the beneficiary is not subject to collective insolvency proceedings nor fulfils the criteria under its domestic law for being placed in collective insolvency proceedings at the request of its creditors. In case of large undertakings, the beneficiary shall be in a situation comparable to a credit rating of at least B-; and

(b)

the loan is secured by collateral covering at least 50 % of the loan and the loan amounts to either EUR 75 000 over 5 years or EUR 37 500 over 10 years; if a loan is for less than those amounts and/or is granted for a period of less than 5 or 10 years respectively, the gross grant equivalent of that loan shall be calculated as a corresponding proportion of the ceiling laid down in Article 3(2); or

(c)

the gross grant equivalent has been calculated on the basis of the reference rate applicable at the time of the grant.

(a)

the beneficiary is not subject to collective insolvency proceedings nor fulfils the criteria under its domestic law for being placed in collective insolvency proceedings at the request of its creditors. In case of large undertakings, the beneficiary shall be in a situation comparable to a credit rating of at least B-; and

(b)

the guarantee does not exceed 80 % of the underlying loan and either the amount guaranteed is EUR 112 500 and the duration of the guarantee is 5 years or the amount guaranteed is EUR 56 250 and the duration of the guarantee is 10 years; if the amount guaranteed is lower than these amounts and/or the guarantee is for a period of less than 5 or 10 years respectively, the gross grant equivalent of that guarantee shall be calculated as a corresponding proportion of the ceiling laid down in Article 3(2); or

(c)

the gross grant equivalent has been calculated on the basis of safe-harbour premiums laid down in a Commission notice; or

(d)

before implementation,

24.12.2013   

EN

Official Journal of the European Union

L 352/18

(1)

The European Central Bank (ECB) requires country-specific and comparative payments statistics to fulfill its tasks. Article 2(1) of Regulation (EC) No 2533/98 provides that information may be collected in the area of payments and payment systems statistics. These data are essential for identifying and monitoring developments in the payments markets within the Member States, and for assisting in the promotion of the smooth operation of payment systems.

(2)

Article 5.1 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’) requires the ECB, assisted by the national central banks (NCBs), to collect the necessary statistical information either from the competent national authorities or directly from economic agents in order to undertake the tasks of the European System of Central Banks (ESCB). Article 5.2 of the Statute of the ESCB requires NCBs to carry out, to the extent possible, the tasks described in Article 5.1.

(3)

The Eurosystem collects payments information pursuant to Guideline ECB/2007/9 (2). In the interest of increasing the quality and reliability of payments statistics and ensuring full coverage of the reporting population, the relevant information should be collected directly from reporting agents.

(4)

The methodology according to which payments information is collected should take account of the developments in the legal framework for payments within the European Union, in particular, Directive 2007/64/EC of the European Parliament and of the Council (3), Directive 2009/110/EC of the European Parliament and of the Council (4) and Article 5 of of Regulation (EC) No 924/2009 of the European Parliament and of the Council (5).

(5)

It may be appropriate for NCBs to collect from the actual reporting population the statistical information necessary to fulfil the ECB’s statistical requirements as part of a broader statistical reporting framework which the NCBs establish under their own responsibility in accordance with Union or national law or established practice and which also serves other statistical purposes, provided that the fulfilment of the ECB’s statistical requirements is not jeopardised. This may also reduce the reporting burden. In order to foster transparency, it is appropriate, in these cases, to inform the reporting agents that data are also collected to fulfil other statistical purposes. In specific cases, the ECB may rely on statistical information collected for such other purposes to fulfil its requirements.

(6)

While it is recognised that regulations adopted by the ECB under Article 34.1 of the Statute of the ESCB do not confer any rights or impose any obligations on Member States whose currency is not the euro (hereinafter the ‘non-euro area Member States’), Article 5 of the Statute of the ESCB applies to both Member States whose currency is the euro (hereinafter the ‘euro area Member States’) and non-euro area Member States. Recital 17 of Regulation (EC) No 2533/98 refers to the fact that Article 5 of the Statute of the ESCB, together with Article 4(3) of the Treaty on European Union, implies an obligation to design and implement at national level all the measures that the non-euro area Member States consider appropriate in order to carry out the collection of the statistical information needed to fulfil the ECB’s statistical reporting requirements and timely preparations in the field of statistics in order for them to become euro area Member States. Consequently, provisions of this Regulation may be extended to apply to the NCBs of non-euro area Member States by means of such NCBs cooperating with the Eurosystem on the basis of an ECB recommendation.

(7)

The standards for the protection and use of confidential statistical information as laid down in Article 8 of Council Regulation (EC) No 2533/98 should apply.

(8)

It is necessary to set up a procedure to carry out technical amendments to the annexes to this Regulation in an effective manner, provided that such amendments neither change the underlying conceptual framework nor affect the reporting burden. Account will be taken of the views of the Statistics Committee (STC) of the ESCB when following this procedure. NCBs and other ESCB Committees may propose such technical amendments to the annexes through the STC,

(a)

‘reporting agent’ and ‘resident’ have the same meaning as defined in Article 1 of Regulation (EC) No 2533/98;

(b)

‘payment service’, ‘payment service provider’, ‘payment institution’ and ‘payment system’ have the same meaning as defined in Article 4 of Directive 2007/64/EC;

(c)

‘electronic money issuer’ and ‘electronic money institution’ have the same meaning as defined in Article 2 of Directive 2009/110/EC;

(d)

‘payment system operator’ means a legal entity that is legally responsible for operating a payment system.

(a)

in the case of payment institutions, if they fulfil the conditions laid down in Article 26(1) and (2) of Directive 2007/64/EC;

(b)

in the case of electronic money institutions, if they fulfil the conditions laid down in Article 9(1) and (2) of Directive 2009/110/EC;

(c)

in the case of other payment service providers not mentioned in points (a) and (b), if they fulfil either the conditions laid down in Article 9(1) and (2) of Directive 2009/110/EC or in Article 26(1) and (2) of Directive 2007/64/EC.

24.12.2013   

EN

Official Journal of the European Union

L 352/45

(1)

Implementing Regulation (EU) No 543/2011 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XVI, Part A thereto.

(2)

The standard import value is calculated each working day, in accordance with Article 136(1) of Implementing Regulation (EU) No 543/2011, taking into account variable daily data. Therefore this Regulation should enter into force on the day of its publication in the Official Journal of the European Union,

24.12.2013   

EN

Official Journal of the European Union

L 352/47

(1)

Article 136(1) of Regulation (EC) No 1234/2007 states that the import duty on products covered by CN codes 1001 19 00, 1001 11 00, ex 1001 91 20 (common wheat seed), ex 1001 99 00 (high quality common wheat other than for sowing), 1002 10 00, 1002 90 00, 1005 10 90, 1005 90 00, 1007 10 90 and 1007 90 00 is to be equal to the intervention price valid for such products on importation and 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, in order to calculate 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 (EU) No 642/2010, the price to be used for the calculation of the import duty on products covered by CN codes 1001 19 00, 1001 11 00, ex 1001 91 20 (common wheat seed), ex 1001 99 00 (high quality common wheat other than for sowing), 1002 10 00, 1002 90 00, 1005 10 90, 1005 90 00, 1007 10 90 and 1007 90 00 is the daily cif representative import price determined as specified in Article 5 of that Regulation.

(4)

Import duties should be fixed for the period from 1 January 2014 and should apply until new import duties are fixed and enter into force.

(5)

Given the need to ensure that this measure applies as soon as possible after the updated data have been made available, this Regulation should enter into force on the day of its publication,

24.12.2013   

EN

Official Journal of the European Union

L 352/50

(1)

On 15 October 2013, the Council adopted Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions.

(2)

The planning and execution of the tasks conferred on the ECB should be fully undertaken by an internal body composed of its Chair and Vice Chair and four representatives of the ECB and one representative of the national competent authority in each participating Member State (‘Supervisory Board’).

(3)

The Supervisory Board should be an essential body in the exercise of supervisory tasks by the ECB, tasks which until now have always been in the hands of national competent authorities. For this reason, the Council should be given the power to adopt an implementing decision to appoint i.a. the Chair of the Supervisory Board.

(4)

In accordance with Article 26(3) of the above-mentioned Regulation, and after hearing the Supervisory Board, the ECB submitted a proposal for the appointment of the Chair of the Supervisory Board to the European Parliament for approval on 22 November. The European Parliament approved this proposal on 11 December.

(5)

Subsequently, on 11 December 2013, the ECB submitted to the Council a proposal for the appointment of the Chair of the Supervisory Board.

24.12.2013   

EN

Official Journal of the European Union

L 352/51

(1)

On 16 December 2013, the Council expressed its deep concern regarding the situation in the Central African Republic (CAR).

(2)

On 5 December 2013, the United Nations Security Council adopted Resolution 2127 (2013), which imposes an arms embargo against the Central African Republic (CAR).

(3)

Further Union action is needed in order to implement certain measures,

(a)

to provide technical assistance, brokering services and other services, including the provision of armed mercenary personnel, 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 any natural or legal person, entity or body in, or for use in the CAR;

(b)

to provide financing or financial assistance related to military activities, including in particular grants, loans and export credit insurance, as well as insurance and reinsurance, for any sale, supply, transfer or export of arms and related materiel or for the provision of related technical assistance, brokering services and other services, directly or indirectly, to any person, entity or body in, or for use in the CAR;

(c)

to participate, knowingly and intentionally, in activities the object or effect of which is to circumvent the prohibitions referred to in points (a) or (b).

(a)

the sale, supply, transfer or export of arms and related materiel intended solely for the support of or use by the Mission for the Consolidation of Peace in Central Africa (MICOPAX), African-led International Support Mission in CAR (MISCA), United Nations Integrated Peacebuilding Office in the Central African Republic (BINUCA) and its guard unit, the African Union-Regional Task Force (AU-RTF), and the French forces deployed in the CAR;

(b)

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

(c)

the sale, supply, transfer or export of small arms and related materiel intended solely for use in international patrols providing security in the Sangha River Tri-national Protected Area to defend against poaching, smuggling of ivory and arms, and other activities contrary to the national laws of CAR or CAR's international legal obligations.

(a)

the sale, supply, transfer or export of non-lethal military equipment intended solely for humanitarian or protective use, and related technical assistance;

(b)

the sale, supply, transfer or export of arms and other related lethal equipment to the CAR security forces, intended solely for support of or use in the CAR process of Security Sector Reform (SSR);

(c)

the sale, supply, transfer or export of arms and related materiel, and related technical or financial assistance, including personnel;

24.12.2013   

EN

Official Journal of the European Union

L 352/53

(1)

In accordance with Article 32(5) first subparagraph of Directive 2010/75/EU, the Kingdom of Spain submitted to the Commission a transitional national plan (TNP) by e-mail on 21 December 2012 (2) and by official letter dated 28 December 2012, which was received by the Commission on 2 January 2013 (3).

(2)

The TNP has been assessed in accordance with Article 32(1), (3) and (4) of Directive 2010/75/EU and with Commission Implementing Decision 2012/115/EU (4).

(3)

During its assessment of the completeness of the TNP submitted by the Kingdom of Spain, the Commission found that many plants included in the TNP did not match with the plants reported in the 2009 emission inventory submitted by the Kingdom of Spain in accordance with Directive 2001/80/EC of the European Parliament and of the Council (5). The Commission also found that for plant 5 the contribution to the TNP ceiling for SO2 for the period 2001–2007 was calculated on the basis of the minimum desulphurisation rate, and for the period 2008–2010 that contribution was determined by the emission limit value method, while the conditions to use this approach were not fulfilled.

(4)

As the discrepancies between the data in the TNP and in the emission inventory under Directive 2001/80/EC hampered the assessment of the TNP, the Commission, in its letter of 11 June 2013 (6), requested the Kingdom of Spain to provide clarification for the differences found. The Commission also requested the Kingdom of Spain to recalculate the contribution of plant 5 to the TNP ceiling for SO2.

(5)

The Kingdom of Spain submitted additional information to the Commission by letter of 28 June 2013 (7), which provided clarification on the differences between the information in the TNP and the 2009 emission inventory under Directive 2001/80/EC. The Kingdom of Spain also stated in that letter that there was no need to revise the contribution of plant 5 to the TNP ceiling for SO2.

(6)

After further assessment of the TNP and the additional information submitted by the Kingdom of Spain, the Commission sent a second letter to the Kingdom of Spain on 19 September 2013 (8), in which it confirmed its position as regards the use of the minimum desulphurisation rate method for calculating the contribution of plant 5 to the TNP ceilings for SO2. The Commission further remarked that for plant 2 the Kingdom of Spain had used an emission limit value for SO2 of 800 mg/Nm3 to calculate the plant’s contribution to the TNP ceiling for 2016, on the basis of the provisions of Article 5(2) of Directive 2001/80/EC, which the Commission considered not to be applicable for this purpose. The Commission also noted that for nine plants an emission limit value for NOx of 1 200 mg/Nm3 was used to calculate their contribution to the TNP ceiling for 2016, on the basis of Note 2 to Table C.1 in Appendix C of the Annex to Implementing Decision 2012/115/EU, but no information on the volatile content of the solid fuel used in these plants had been provided, which would justify the application of that Note. The Commission also requested additional information from the Kingdom of Spain about the measures foreseen for each of the plants included in the TNP in order to ensure timely compliance with the emission limit values that will be applicable from 1 July 2020. The Commission finally requested the Kingdom of Spain to provide additional data for plants firing multiple fuels or consisting of different plant types concerning the amount of fuels used, emission limit values, average waste gas flow rates and conversion factors for each of the fuels used or each of the plant types separately.

(7)

In its letter of 30 September 2013 (9), supplemented by letter of 10 October 2013 (10), the Kingdom of Spain replied to the questions of the Commission and provided additional data. For plant 2, the Kingdom of Spain reiterated its view that there was no need to change the SO2 emission limit value used as it considered that Article 5(2) of Directive 2001/80/EC was applicable in this respect. For plant 5, the Kingdom of Spain continued to argue that it was entitled to use a combination of the minimum desulphurisation rate method and the emission limit value method. The Kingdom of Spain provided information concerning the volatile content of the solid fuel used in the period 2001-2010 by the nine plants for which a NOx emission limit value of 1 200 mg/Nm3 had been applied to calculate the 2016 ceiling, which showed that only for plants 3, 4 and 19 the average annual volatile content of the solid fuel used was below 10 % in each of the years between 2001 and 2010, while for the plants 13, 15, 17, 18, 24 and 25 the average annual level was exceeding 10 % during one or more years. The Kingdom of Spain argued that for all nine plants the average value of the volatile content over the whole reference period (2001-2010) was below the value mentioned in Note 2 to Table C.1 in Appendix C of the Annex to Implementing Decision 2012/115/EU.

(8)

Based on the information received from the Spanish authorities on 30 September 2013 and 10 October 2013, the Commission noted that for multiple fuel types plants, for which emission limit values for all fuels fired have been provided, and for one plant for which emission limit value averaged for all fuels fired has been provided, it is necessary to clarify how the contributions to the total ceilings from those plants were calculated, specifying the emission limit values and the average annual waste gas flow rates used for each fuel fired in those plants.

(9)

After the final assessment of the TNP notified by the Kingdom of Spain, as amended in accordance with the additional information and including the large combustion plants listed in Annex I to this decision, the Commission identified three main elements as not being in compliance with the applicable provisions, as follows:

(10)

In addition, the Commission identified several plants in the TNP where the information is still inconsistent and/or missing data need to be supplemented. The full list of missing data and requests for clarification is included in Annex II to this decision.

(11)

Hence, the TNP notified by the Kingdom of Spain should not be accepted.

(a)

for plant 2, to correct the emission limit value applied for calculating its contribution to the SO2 ceiling for 2016; the plant is not eligible for using the emission limit value of 800 mg/Nm3 for SO2 for calculating its contribution to the 2016 TNP ceiling on the basis of Article 5(2) of Directive 2001/80/EC, as that emission limit value is not referred to in the second subparagraph of Article 32(3) of Directive 2010/75/EU;

(b)

for plant 5, to correct the method applied for calculating its contribution to the 2016 TNP ceiling for SO2; that contribution shall be calculated for the entire period 2001-2010 either on the basis of the minimum desulphurisation rate, or on the basis of the emission limit values;

(c)

for plants 13, 15, 17, 18, 24 and 25: to correct the emission limit values applied for calculating their contribution to the NOx ceiling for 2016; in order for the plants to be eligible for using the emission limit value of 1 200 mg/Nm3, the Kingdom of Spain shall demonstrate that the average annual volatile content of the solid fuel used in the plants was below 10 % in the reference years considered for the TNP;

(d)

to correctly update the total emission ceilings for all years calculated in accordance with the corrected values mentioned in the previous points;

(e)

to clarify all issues and complement the data as mentioned in Annex II to this decision.

24.12.2013   

EN

Official Journal of the European Union

L 352/58

(1)

Pursuant to Article 22 of Directive 2000/29/EC, Member States may receive a ‘plant health control’ financial contribution from the Union to cover expenditure relating directly to the necessary measures which have been taken or are planned to be taken for the purpose of combating harmful organisms introduced from third countries or from other areas in the Union, in order to eradicate or, if that is not possible, to contain them.

(2)

Germany introduced three requests for financial contribution. The first one was introduced on 30 April 2013 and relates to measures taken in 2012 to eradicate or contain Diabrotica virgifera in Rheinland-Pfalz. The outbreak of that harmful organism was detected there in August and September 2012.

(3)

The second one was introduced on 30 April 2013 and relates to measures taken from August 2011 until August 2012 to control Anoplophora glabripennis in Nordrhein-Westfalen. The outbreak of that harmful organism was detected there in 2009.

(4)

The third request of Germany was introduced on 24 April 2013 and relates to measures taken in 2012 to eradicate or contain Diabrotica virgifera in Baden-Württemberg. The outbreaks of that harmful organism were detected in different rural or city districts of that State (Alb-Donaukreis, Biberach, Breisgau-Hochschwarzwald, Emmendingen, Karlsruhe, Konstanz, Loerrach, Rastatt and Ravensburg) in different years, i.e. 2009, 2010, 2011 and 2012. The measures taken in those years have also been the subject to co-financing in 2009, 2010, 2011 and 2012.

(5)

Spain introduced four requests for financial contribution on 17 April 2013. The first one relates to measures of intensified inspections taken in 2012 in the four Autonomous Communities bordering Portugal to control Bursaphelenchus xylophilus.

(6)

The second request of Spain relates to measures taken or planned for 2013 in Galicia to control Bursaphelenchus xylophilus. The outbreak of that harmful organism was detected in 2010 in the area of As Neves.

(7)

The third request relates to measures taken or planned for 2013 in Catalonia to control Pomacea insularum. The outbreak of that harmful organism was detected in 2010.

(8)

The fourth request of Spain relates to measures taken or planned for 2013 in Extremadura to control Bursaphelenchus xylophilus. The outbreak of that harmful organism was detected in 2012 in the area of Valverde del Fresno.

(9)

France introduced two requests for financial contribution on 30 April 2013. The first one relates to measures taken or planned from July 2012 until November 2013 to control Anoplophora glabripennis in Alsace. Measures were taken in France as a consequence of findings in July 2011 of that harmful organism in the bordering area of Germany.

(10)

The second request relates to measures taken or planned from October 2012 until September 2013 to control Rhynchophorus ferrugineus in the PACA region. The initial outbreaks of that harmful organism were detected in 2009. Measures taken from September 2009 until September 2012 have also been the subject of co-financing in 2010 and 2012.

(11)

The Netherlands introduced one request for financial contribution on 30 April 2013. That request relates to measures taken from July until October 2012 in the area of Winterswijk to control Anoplophora glabripennis. The appearance of that harmful organism was detected on 10 July 2012.

(12)

Portugal introduced two requests for financial contribution on 30 April 2013 relating to measures taken to control Bursaphelenchus xylophilus. The first request relates to measures taken or planned in 2013 and 2014 in continental Portugal, in the buffer zone at the border with Spain.

(13)

The second request of Portugal concerns exclusively measures of heat treatment of wood or wood packaging material in the area of Setubal, in 2013. The measures taken in 2010, 2011 and 2012 have also been the subject of co-financing in 2011and 2012.

(14)

In their requests, Germany, Spain, France, The Netherlands and Portugal have each established a programme of actions to eradicate or contain the above harmful organisms introduced in their territories. These programmes specify the objectives to be achieved, the measures carried out, their duration and their cost.

(15)

All the above measures consist of a variety of plant health measures, including destruction of contaminated trees or crops, application of plant protection products, sanitation techniques, inspections and testings carried out officially or upon official request to monitor the presence or extent of contamination by the respective harmful organisms, and replacement of destroyed plants, within the meaning of Article 23(2)(a), (b) and (c) of Directive 2000/29/EC.

(16)

Germany, Spain, France, The Netherlands and Portugal have applied for the allocation of a Union financial contribution to these requests in accordance with the requirements laid down in Article 23 of Directive 2000/29/EC, in particular paragraphs 1 and 4 thereof, and in accordance with Commission Regulation (EC) No 1040/2002 (2).

(17)

The technical information provided by Germany, Spain, France, The Netherlands and Portugal has enabled the Commission to analyse the situation accurately and comprehensively. The Commission has concluded that the conditions for the granting of a Union financial contribution, as laid down in particular in Article 23 of Directive 2000/29/EC, have been met. Accordingly, it is appropriate to provide a Union financial contribution to cover the expenditure on those requests.

(18)

The measures and expenditure eligible for Union financial contribution have been clarified by letter of DG SANCO of the Commission to the Chief Plant Health Officers of the Member States dated 25 May 2012.

(19)

In accordance with the second subparagraph of Article 23(5) of Directive 2000/29/EC, the Union financial contribution may cover up to 50 % of eligible expenditure for measures that have been taken within a period of not more than two years after the date of detection of the appearance or that are planned for that period. However, in accordance with the third subparagraph of that Article, that period may be extended up to four years if it has been established that the objective of the measures will be achieved within a reasonable additional period, in which case the rate of the Union financial contribution shall be degressive over the years concerned.

(20)

Having regard to the conclusions of the Plant Health Evaluation Board of the Commission of 24 to 26 June 2013 on the evaluation of the respective requests, it is appropriate to extend the two-year period for the requests concerned, while reducing the rate of the Union financial contribution for these measures to 45 % of eligible expenditure for the third year and to 40 % for the fourth year of these requests.

(21)

The Union financial contribution up to 50 % of eligible expenditure should therefore apply to the following requests: Germany, Baden-Württemberg, Diabrotica virgifera, rural districts of Alb-Donaukreis, Biberach, Karlsruhe, Rastatt and Ravensburg (2012), Germany, Diabrotica virgifera, Rheinland-Pfalz (2012), Spain, Extremadura, Bursaphelenchus xylophilus (2013), France, Anoplophora glabripennis, (November 2012 to October 2013), The Netherlands, Anoplophora glabripennis, Winterswijk area (July to October 2012).

(22)

The Union financial contribution up to 45 % of eligible expenditure should therefore apply to the following requests: Germany, Anoplophora glabripennis (August 2011 to August 2012), Germany, Baden-Württemberg, Diabrotica virgifera, rural districts of Breisgau-Hochschwarzwald and Freiburg city (2012), as the measures concerned have already been the subject of a Union financial contribution under Commission Implementing Decisions 2011/868/EU (3) and 2012/789/EU (4) for the first two years of their implementation.

(23)

Moreover, a Union contribution up to 40 % should apply to the fourth year of the following requests: Germany, Baden-Württemberg, Diabrotica virgifera, rural districts of Emmendingen, Konstanz and Lörrach (2012), Spain, Catalonia, Pomacea insularum (2013), Spain, Galicia, Bursaphelenchus xylophilus (2013), France, Rhynchophorus ferrugineus (October 2012 until September 2013), Portugal, Bursaphelenchus xylophilus, Setubal area (2013) as the measures have been the subject of a Union financial contribution under Commission Decision 2010/772/EU (5) (Germany, Spain, Pomacea insularum, France and Portugal), Implementing Decisions 2011/868/EU (Germany, Spain and Portugal) and/or Decision 2012/789/EU (Germany, Spain, France and Portugal) for the first three years of their implementation.

(24)

Pursuant to the first and second subparagraphs of Article 23(6) of Directive 2000/29/EC, further action may be implemented in the light of the development of the situation in the Union, and allocation of financial contribution from the Union for such further action shall be decided. That action must be made subject to certain requirements or additional conditions, if these are necessary for the achievement of the objective in question. Moreover, pursuant to the third subparagraph of Article 23(6), where such further action is essentially designed to protect Union territories, other than that of the Member State concerned, it may be decided that the Union financial allocation covers more than 50 % of the expenditure.

(25)

In the case of co-financing of actions against Bursaphelenchus xylophilus in Portugal, the maximum time period of four years, as laid down in Article 1(2)(b) of Regulation (EC) No 1040/2002, has elapsed since 2012. However, given the great relevance of Bursaphelenchus xylophilus for coniferous plants and wood, the rapidity with which the disease spreads, the proximity of Spain to the area demarcated in Portugal for that harmful organism, and the possible impact on Union forestry and international wood trade, further action is necessary to achieve the objective of phytosanitary protection of the Union territory, both in Portugal and in Member States other than Portugal. That action should concern measures taken by Portugal in the buffer zone bordering Spain. Therefore, co-financing of those further actions should apply to the request of Portugal for 2013 and 2014 for measures to control Bursaphelenchus xylophilus in the buffer zone bordering Spain. In addition, it is appropriate to allocate a higher rate of Union financial contribution to that request, and in particular a rate of 75 %, as that action is considered essentially designed to protect the territory of Union territories other than that of Portugal.

(26)

Spain has carried out intensive inspections for Bursaphelenchus xylophilus at the border area with Portugal, in the Autonomous Communities of Andalusia, Castilla y Leon, Extremadura and Galicia, and covering areas that are not demarcated for that harmful organism. Those inspections aim at intensive surveillance for early detection and eradication in the particular areas to protect the rest of the Union territory. Spain has already allocated significant resources to control two isolated outbreaks of Bursaphelenchus xylophilus in Extremadura and Galicia. That action is considered essentially designed to protect the territory of Spain, as well as Union territories other than that of Spain, given the great relevance of Bursaphelenchus xylophilus for coniferous plants and wood, the rapidity with which the disease spreads, and the possible impact on Union forestry and international wood trade. It is therefore relevant to allocate a higher rate of Union financial contribution to that request, and in particular a rate of 75 %.

(27)

A mission of the Food and Veterinary Office of the Commission (hereinafter: ‘FVO’) in April 2013, revealed several shortcomings in the application of Union emergency measures against Bursaphelenchus xylophilus adopted pursuant to Commission Implementing Decision 2012/535/EU (6). Those shortcomings concern the measures taken by Portugal in the buffer zone bordering Spain. In particular, the felling, removal and disposal of pinewood nematode host trees which are dead, in poor health or situated in fire-or storm affected areas, was not completed within the deadlines fixed by Implementing Decision 2012/535/EU. Noting that, for the same reasons, the Commission decided, by Implementing Decisions 2011/868/EU and 2012/789/EU, to apply reduced levels of co-financing of similar applications in 2011 and 2012, it appears appropriate to apply a further reduction to the co-financing concerning those actions. That reduction should be proportional to the period for which the FVO mission could ascertain the improper implementation of Union measures, namely the first three months of 2013.

(28)

In accordance with Article 3(2)(a) of Council Regulation (EC) No 1290/2005 (7), plant-health measures are financed from the European Agricultural Guarantee Fund. For the purpose of financial control of these measures, Articles 9, 36 and 37 of the above Regulation should apply.

(29)

In accordance with Article 84 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (8) and Article 94(1) of Commission Delegated Regulation (EU) No 1268/2012 (9), the commitment of expenditure from the Union budget shall be preceded by a financing decision adopted by the institution to which powers have been delegated, setting out the essential elements of the action involving the expenditure.

(30)

The present decision constitutes a financing decision for the expenditure provided in the co-financing requests presented by Member States.

(31)

The measures provided in this Decision are in accordance with the opinion of the Standing Committee on Plant Health,

(a)

evidence of the measures taken has been submitted by the Member State concerned in accordance with the provisions laid down in Regulation (EC) No 1040/2002;

(b)

a request for payment has been submitted by the Member State concerned to the Commission, in accordance with Article 5 of Regulation (EC) No 1040/2002.

24.12.2013   

EN

Official Journal of the European Union

L 352/65

(1)

Regulation (EC) No 58/2003 empowers the Commission to delegate powers to the executive agencies to implement all or part of a Union programme or project, on its behalf and under its responsibility.

(2)

The purpose of entrusting the executive agencies with programme implementation tasks is to enable the Commission to focus on its core activities and functions which cannot be outsourced, without relinquishing control over, and ultimate responsibility for, activities managed by those executive agencies.

(3)

The delegation of tasks related to programme implementation to an executive agency requires a clear separation between the programming stages involving a large measure of discretion in making choices driven by policy considerations, this being carried out by the Commission, and programme implementation, which should be entrusted to the executive agency.