ISSN 1977-0677

Official Journal

of the European Union

L 217

European flag  

English edition

Legislation

Volume 57
23 July 2014


Contents

 

II   Non-legislative acts

page

 

 

REGULATIONS

 

*

Council Implementing Regulation (EU) No 790/2014 of 22 July 2014 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combatting terrorism, and repealing Implementing Regulation (EU) No 125/2014

1

 

*

Council Regulation (EU) No 791/2014 of 22 July 2014 amending Regulation (EC) No 1210/2003 concerning certain specific restrictions on economic and financial relations with Iraq

5

 

*

Council Implementing Regulation (EU) No 792/2014 of 22 July 2014 implementing Article 16(2) of Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya

9

 

*

Council Implementing Regulation (EU) No 793/2014 of 22 July 2014 implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria

10

 

 

Commission Implementing Regulation (EU) No 794/2014 of 22 July 2014 establishing the standard import values for determining the entry price of certain fruit and vegetables

13

 

*

Regulation of the European Central Bank (EU) No 795/2014 of 3 July 2014 on oversight requirements for systemically important payment systems (ECB/2014/28)

16

 

 

DECISIONS

 

*

Council Decision 2014/482/CFSP of 22 July 2014 amending Decision 2012/392/CFSP on the European Union CSDP mission in Niger (EUCAP Sahel Niger)

31

 

*

Council Decision 2014/483/CFSP of 22 July 2014 updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2014/72/CFSP

35

 

*

Council Decision 2014/484/CFSP of 22 July 2014 amending Common Position 2003/495/CFSP on Iraq

38

 

*

Council Decision 2014/485/CFSP of 22 July 2014 amending Decision 2012/389/CFSP on the European Union Mission on Regional Maritime Capacity Building in the Horn of Africa (EUCAP NESTOR)

39

 

*

Council Decision 2014/486/CFSP of 22 July 2014 on the European Union Advisory Mission for Civilian Security Sector Reform Ukraine (EUAM Ukraine)

42

 

*

Council Implementing Decision 2014/487/CFSP of 22 July 2014 implementing Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya

48

 

*

Council Implementing Decision 2014/488/CFSP of 22 July 2014 implementing Decision 2013/255/CFSP concerning restrictive measures against Syria

49

 

 

2014/489/EU

 

*

Commission Decision of 19 June 2013 on State aid SA.28599 (C 23/10 (ex NN 36/10, ex CP 163/09)) implemented by the Kingdom of Spain for the deployment of digital terrestrial television in remote and less urbanised areas (outside Castilla-La Mancha) (notified under document C(2013) 3204)  ( 1 )

52

 

 

ACTS ADOPTED BY BODIES CREATED BY INTERNATIONAL AGREEMENTS

 

 

2014/490/EU

 

*

Decision No 2 of the Joint Committee of the Regional Convention on pan-Euro-Mediterranean preferential rules of origin of 21 May 2014 as regards the request of the Republic of Moldova to become a Contracting Party to the Regional Convention on pan-Euro-Mediterranean preferential rules of origin

88

 


 

(1)   Text with EEA relevance

EN

Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.

The titles of all other Acts are printed in bold type and preceded by an asterisk.


II Non-legislative acts

REGULATIONS

23.7.2014   

EN

Official Journal of the European Union

L 217/1


COUNCIL IMPLEMENTING REGULATION (EU) No 790/2014

of 22 July 2014

implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combatting terrorism, and repealing Implementing Regulation (EU) No 125/2014

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (1), and in particular Article 2(3) thereof,

Whereas:

(1)

On 10 February 2014, the Council adopted Implementing Regulation (EU) No 125/2014 (2) implementing Article 2(3) of Regulation (EC) No 2580/2001, establishing an updated list of persons, groups and entities to which Regulation (EC) No 2580/2001 applies (‘the list’).

(2)

The Council has provided, where practically possible, all the persons, groups and entities with statements of reasons explaining why they were entered on to the list.

(3)

By way of a notice published in the Official Journal of the European Union, the Council informed the persons, groups and entities on the list that it had decided to keep them thereon. The Council also informed the persons, groups and entities concerned that it was possible to request a statement of the Council's reasons for putting them on the list where one had not already been communicated to them.

(4)

The Council has reviewed the list as required by Article 2(3) of Regulation (EC) No 2580/2001. When doing so it took account of observations submitted to the Council by those concerned.

(5)

The Council has determined that there are no longer grounds for keeping one person on the list.

(6)

The Council has concluded that the persons, groups and entities listed in the Annex to this Regulation have been involved in terrorist acts within the meaning of Article 1(2) and (3) of Council Common Position 2001/931/CFSP (3), that a decision has been taken with respect to them by a competent authority within the meaning of Article 1(4) of that Common Position, and that they should continue to be subject to the specific restrictive measures provided for in Regulation (EC) No 2580/2001.

(7)

The list should be updated accordingly and Implementing Regulation (EU) No 125/2014 should be repealed,

HAS ADOPTED THIS REGULATION:

Article 1

The list provided for in Article 2(3) of Regulation (EC) No 2580/2001 is set out in the Annex to this Regulation.

Article 2

Implementing Regulation (EU) No 125/2014 is hereby repealed.

Article 3

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  OJ L 344, 28.12.2001, p. 70.

(2)  Council Implementing Regulation (EU) No 125/2014 of 10 February 2014 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Implementing Regulation (EU) No 714/2013 (OJ L 40, 11.2.2014, p. 9).

(3)  Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ L 344, 28.12.2001, p. 93).


ANNEX

List of persons, groups and entities referred to in Article 1

I.   PERSONS

1.

ABDOLLAHI Hamed (a.k.a Mustafa Abdullahi), born August 11, 1960 in Iran. Passport: D9004878.

2.

AL-NASSER, Abdelkarim Hussein Mohamed, born in Al Ihsa (Saudi Arabia), citizen of Saudi Arabia.

3.

AL YACOUB, Ibrahim Salih Mohammed, born 16.10.1966 in Tarut (Saudi Arabia), citizen of Saudi Arabia.

4.

ARBABSIAR Manssor (a.k.a. Mansour Arbabsiar), born March 6 or 15, 1955 in Iran. Iranian and US national. Passport: C2002515 (Iran); Passport: 477845448 (USA). National ID no.: 07442833, expiry date 15 March 2016 (USA driving licence).

5.

BOUYERI, Mohammed (a.k.a. Abu ZUBAIR, a.k.a. SOBIAR, a.k.a. Abu ZOUBAIR), born 8.3.1978 in Amsterdam (The Netherlands) — member of the ‘Hofstadgroep’.

6.

IZZ-AL-DIN, Hasan (a.k.a GARBAYA, Ahmed, a.k.a. SA-ID, a.k.a. SALWWAN, Samir), Lebanon, born 1963 in Lebanon, citizen of Lebanon.

7.

MOHAMMED, Khalid Shaikh (a.k.a. ALI, Salem, a.k.a. BIN KHALID, Fahd Bin Adballah, a.k.a. HENIN, Ashraf Refaat Nabith, a.k.a. WADOOD, Khalid Adbul), born 14.4.1965 or 1.3.1964 in Pakistan, passport No 488555.

8.

SHAHLAI Abdul Reza (a.k.a Abdol Reza Shala'i, a.k.a. Abd-al Reza Shalai, a.k.a. Abdorreza Shahlai, a.k.a. Abdolreza Shahla'i, a.k.a. Abdul-Reza Shahlaee, a.k.a.Hajj Yusef, a.k.a. Haji Yusif, a.k.a.Hajji Yasir, a.k.a.Hajji Yusif, a.k.a.Yusuf Abu-al-Karkh), born circa 1957 in Iran. Addresses: (1) Kermanshah, Iran, (2) Mehran Military Base, Ilam Province, Iran.

9.

SHAKURI Ali Gholam, born circa 1965 in Tehran, Iran.

10.

SOLEIMANI Qasem (a.k.a Ghasem Soleymani, a.k.a Qasmi Sulayman, a.k.a Qasem Soleymani, a.k.a Qasem Solaimani, a.k.a Qasem Salimani, a.k.a Qasem Solemani, a.k.a Qasem Sulaimani, a.k.a Qasem Sulemani), born March 11, 1957 in Iran. Iranian national. Passport: 008827 (Iran Diplomatic), issued 1999. Title: Major General.

II.   GROUPS AND ENTITIES

1.

‘Abu Nidal Organisation’ — ‘ANO’ (a.k.a. ‘Fatah Revolutionary Council’, a.k.a. ‘Arab Revolutionary Brigades’, a.k.a. ‘Black September’, a.k.a. ‘Revolutionary Organisation of Socialist Muslims’).

2.

‘Al-Aqsa Martyrs' Brigade’.

3.

‘Al-Aqsa e.V.’.

4.

‘Al-Takfir’ and ‘Al-Hijra’.

5.

‘Babbar Khalsa’.

6.

‘Communist Party of the Philippines’, including ‘New People's Army’ — ‘NPA’, Philippines.

7.

‘Gama'a al-Islamiyya’ (a.k.a. ‘Al-Gama'a al-Islamiyya’) (‘Islamic Group’ — ‘IG’).

8.

‘İslami Büyük Doğu Akıncılar Cephesi’ — ‘IBDA-C’ (‘Great Islamic Eastern Warriors Front’).

9.

‘Hamas’, including ‘Hamas-Izz al-Din al-Qassem’.

10.

‘Hizballah Military Wing’ (a.k.a. ‘Hezbollah Military Wing’, a.k.a. ‘Hizbullah Military Wing’, a.k.a. ‘Hizbollah Military Wing’, a.k.a. ‘Hezballah Military Wing’, a.k.a. ‘Hisbollah Military Wing’, a.k.a. ‘Hizbu'llah Military Wing’ a.k.a. ‘Hizb Allah Military Wing’, a.k.a. ‘Jihad Council’ (and all units reporting to it, including the External Security Organisation))

11.

‘Hizbul Mujahideen’ — ‘HM’.

12.

‘Hofstadgroep’.

13.

‘Holy Land Foundation for Relief and Development’.

14.

‘International Sikh Youth Federation’ — ‘ISYF’.

15.

‘Khalistan Zindabad Force’ — ‘KZF’.

16.

‘Kurdistan Workers' Party’ — ‘PKK’, (a.k.a. ‘KADEK’, a.k.a. ‘KONGRA-GEL’).

17.

‘Liberation Tigers of Tamil Eelam’ — ‘LTTE’.

18.

‘Ejército de Liberación Nacional’ (‘National Liberation Army’).

19.

‘Palestinian Islamic Jihad’ — ‘PIJ’.

20.

‘Popular Front for the Liberation of Palestine’ — ‘PFLP’.

21.

‘Popular Front for the Liberation of Palestine — General Command’ (a.k.a. ‘PFLP — General Command’).

22.

‘Fuerzas armadas revolucionarias de Colombia’ — ‘FARC’ (‘Revolutionary Armed Forces of Colombia’).

23.

‘Devrimci Halk Kurtuluș Partisi-Cephesi’ — ‘DHKP/C’ (a.k.a. ‘Devrimci Sol’ (‘Revolutionary Left’), a.k.a. ‘Dev Sol’) (‘Revolutionary People's Liberation Army/Front/Party’).

24.

‘Sendero Luminoso’ — ‘SL’ (‘Shining Path’).

25.

‘Teyrbazen Azadiya Kurdistan’ — ‘TAK’ (a.k.a. ‘Kurdistan Freedom Falcons’, a.k.a. ‘Kurdistan Freedom Hawks’).


23.7.2014   

EN

Official Journal of the European Union

L 217/5


COUNCIL REGULATION (EU) No 791/2014

of 22 July 2014

amending Regulation (EC) No 1210/2003 concerning certain specific restrictions on economic and financial relations with Iraq

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 215 thereof,

Having regard to Council Common Position 2003/495/CFSP of 7 July 2003 on Iraq and repealing Common Positions 96/741/CFSP and 2002/599/CFSP (1),

Having regard to the joint proposal of the High Representative of the Union for Foreign Affairs and Security Policy and of the European Commission,

Whereas:

(1)

Council Regulation (EC) No 1210/2003 (2) imposes restrictive measures in respect of Iraq, in accordance with Common Position 2003/495/CFSP and UN Security Council Resolution 1483 (2003).

(2)

Paragraphs 3 and 4 of Article 4 of Regulation (EC) No 1210/2003, providing that no funds or economic resources are to be made available, directly or indirectly, to or for the benefit of a natural or legal person, body or entity listed in Annex IV to that Regulation, so as to enable that person, body or entity to obtain funds, goods or services, should be merged.

(3)

On 22 July 2014, the Council adopted Decision 2014/484/CFSP (3) prohibiting funds or economic resources from being made available, directly or indirectly, for the benefit of listed persons and entities. Specific exemptions are provided for, namely funds and economic resources which are: (a) necessary to satisfy basic needs, (b) intended exclusively for payment of reasonable professional fees and reimbursement of incurred expenses associated with the provision of legal services, (c) intended exclusively for payment of fees or services charges for holding or maintenance of frozen funds and economic resources, or (d) necessary for payment of extraordinary expenses.

(4)

It is also appropriate to update Regulation (EC) No 1210/2003 with recent information provided by the Member States regarding the identification of competent authorities.

(5)

Regulation (EC) No 1210/2003 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1210/2003 is amended as follows:

(1)

Article 4 is amended as follows:

(a)

paragraph 3 is replaced by the following:

‘3.   No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of natural or legal persons, bodies or entities listed in Annex IV.’;

(b)

paragraph 4 is deleted;

(2)

Article 4a is replaced by the following:

‘Article 4a

The prohibition set out in Article 4(3) shall not give rise to liability of any kind on the part of the natural or legal persons or entities concerned, if they did not know, and had no reasonable cause to suspect, that their actions would infringe this prohibition.’;

(3)

Article 5 is replaced by the following:

‘Article 5

1.   Article 4 shall not prevent the crediting of frozen accounts by financial or credit institutions that receive funds transferred by third parties to the account of the listed person, entity or body, provided that any additions to such accounts are also frozen. The financial or credit institution shall inform the competent authorities about such transactions without delay.

2.   By way of derogation from Article 4(3), the competent authorities, as indicated on the websites listed in Annex V, may authorise the making available of certain funds or economic resources, under such conditions as they deem appropriate, after having determined that the funds or economic resources concerned are:

(a)

necessary to satisfy the basic needs of natural or legal persons, entities or bodies listed in Annex IV, and dependent family members of such natural persons, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

(b)

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

(c)

intended exclusively for payment of fees or service charges for routine holding or maintenance of frozen funds or economic resources; or

(d)

necessary for extraordinary expenses, provided that the relevant competent authority has notified the grounds on which it considers that a specific authorisation should be granted to the competent authorities of the other Member States and to the Commission at least two weeks prior to authorisation.

3.   The Member States concerned shall inform the other Member States and the Commission of any authorisation granted under this Article.’;

(4)

Annex V is replaced by the text set out in the Annex to this Regulation.

Article 2

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  OJ L 169, 8.7.2003, p. 72.

(2)  Council Regulation (EC) No 1210/2003 of 7 July 2003 concerning certain specific restrictions on economic and financial relations with Iraq and repealing Regulation (EC) No 2465/96 (OJ L 169, 8.7.2003, p. 6).

(3)  Council Decision 2014/484/CFSP of 22 July 2014 amending Common Position 2003/495/CFSP on Iraq (see page 38 of this Official Journal).


ANNEX

‘ANNEX V

Websites for information on the competent authorities referred to in Articles 5, 6, 7 and 8 and address for notifications to the European Commission

A.   Competent authorities in each Member State:

BELGIUM

http://www.diplomatie.be/eusanctions

BULGARIA

http://www.mfa.bg/en/pages/135/index.html

CZECH REPUBLIC

http://www.mfcr.cz/mezinarodnisankce

DENMARK

http://um.dk/da/politik-og-diplomati/retsorden/sanktioner/

GERMANY

http://www.bmwi.de/DE/Themen/Aussenwirtschaft/aussenwirtschaftsrecht,did=404888.html

ESTONIA

http://www.vm.ee/est/kat_622/

IRELAND

http://www.dfa.ie/home/index.aspx?id=28519

GREECE

http://www.mfa.gr/en/foreign-policy/global-issues/international-sanctions.html

SPAIN

http://www.exteriores.gob.es/Portal/es/PoliticaExteriorCooperacion/GlobalizacionOportunidadesRiesgos/Documents/ORGANISMOS%20COMPETENTES%20SANCIONES%20INTERNACIONALES.pdf

FRANCE

http://www.diplomatie.gouv.fr/autorites-sanctions/

CROATIA

http://www.mvep.hr/sankcije

ITALY

http://www.esteri.it/MAE/IT/Politica_Europea/Misure_Deroghe/

CYPRUS

http://www.mfa.gov.cy/sanctions

LATVIA

http://www.mfa.gov.lv/en/security/4539

LITHUANIA

http://www.urm.lt/sanctions

LUXEMBOURG

http://www.mae.lu/sanctions

HUNGARY

http://en.nav.gov.hu/criminal_branch_of_NTCA/restrictive_measures/European_Unions_consolidated_sanctions_list

MALTA

https://www.gov.mt/en/Government/Government%20of%20Malta/Ministries%20and%20Entities/Officially%20Appointed%20Bodies/Pages/Boards/Sanctions-Monitoring-Board-.aspx

NETHERLANDS

www.rijksoverheid.nl/onderwerpen/internationale-vrede-en-veiligheid/sancties

AUSTRIA

http://www.bmeia.gv.at/view.php3?f_id=12750&LNG=en&version=

POLAND

http://www.msz.gov.pl

PORTUGAL

http://www.portugal.gov.pt/pt/os-ministerios/ministerio-dos-negocios-estrangeiros/quero-saber-mais/sobre-o-ministerio/medidas-restritivas/medidas-restritivas.aspx

ROMANIA

http://www.mae.ro/node/1548

SLOVENIA

http://www.mzz.gov.si/si/zunanja_politika_in_mednarodno_pravo/zunanja_politika/mednarodna_varnost/omejevalni_ukrepi/

SLOVAKIA

http://www.mzv.sk/sk/europske_zalezitosti/europske_politiky-sankcie_eu

FINLAND

http://formin.finland.fi/kvyhteistyo/pakotteet

SWEDEN

http://www.ud.se/sanktioner

UNITED KINGDOM

https://www.gov.uk/sanctions-embargoes-and-restrictions

B.   Address for notifications to the European Commission:

European Commission

Service for Foreign Policy Instruments (FPI)

EEAS 02/309

1049 Brussels

BELGIUM

E-mail: relex-sanctions@ec.europa.eu’.


23.7.2014   

EN

Official Journal of the European Union

L 217/9


COUNCIL IMPLEMENTING REGULATION (EU) No 792/2014

of 22 July 2014

implementing Article 16(2) of Regulation (EU) No 204/2011 concerning restrictive measures in view of the situation in Libya

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EU) No 204/2011 of 2 March 2011 concerning restrictive measures in view of the situation in Libya (1), and in particular Article 16(2) thereof,

Whereas:

(1)

On 2 March 2011, the Council adopted Regulation (EU) No 204/2011.

(2)

The Council considers that there are no longer grounds for keeping one person on the list set out in Annex III to Regulation (EU) No 204/2011.

(3)

Regulation (EU) No 204/2011 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

The entry for the following person shall be deleted from the list set out in Annex III to Regulation (EU) No 204/2011:

23.

ZIDANE, Mohamad Ali.

Article 2

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  OJ L 58, 3.3.2011, p. 1.


23.7.2014   

EN

Official Journal of the European Union

L 217/10


COUNCIL IMPLEMENTING REGULATION (EU) No 793/2014

of 22 July 2014

implementing Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011 (1), and in particular Article 32(1) thereof,

Whereas:

(1)

On 18 January 2012, the Council adopted Regulation (EU) No 36/2012.

(2)

In view of the gravity of the situation, three persons and nine entities should be added to the list of persons and entities subject to restrictive measures in Annex II to Regulation (EU) No 36/2012.

(3)

Annex II to Regulation (EU) No 36/2012 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

The persons and entities listed in the Annex to this Regulation shall be added to the list set out in Annex II to Regulation (EU) No 36/2012.

Article 2

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  OJ L 16, 19.1.2012, p. 1.


ANNEX

List of persons and entities referred to in Article 1

A.   Persons

 

Name

Identifying information

Reasons

Date of listing

180.

Hashim Anwar al-Aqqad a.k.a. Hashem Aqqad, Hashem Akkad, Hashim Akkad

d.o.b. 1961

Mohagirine, Syria.

Prominent businessman, chairman of the Akkad Group of companies that operate in multiple sectors of the Syrian economy, including oil and gas. Provides support to and benefits from the Syrian regime.

23.7.2014

181.

Colonel Suhayl Hasan a.k.a. Colonel Suhayl al-Hasan, ‘al-Nimir’/‘The Tiger’, Sohail Hassan, Sohail al-Hassan, Suhail Hassan, Lieutenant Colonel Suhayl Hassan, Brigadier General Suhayl Hasan

 

Military commander for the Syrian regime, responsible for violent repression of the civilian population; supports the regime.

23.7.2014

182.

Amr Armanazi a.k.a. Amr Muhammad Najib Al-Armanazi, Amr Najib Armanazi, Amrou Al-Armanazy

d.o.b. 7 February 1944.

Director General of the Syrian Scientific Studies and Research Centre (SSRC), responsible for providing support to the Syrian army for the acquisition of equipment used directly for the surveillance and repression of demonstrators.

Responsible for the violent repression of the civilian population; supports the regime.

23.7.2014

B.   Entities

 

Name

Identifying information

Reasons

Date of listing

54.

Oceans Petroleum Trading. a.k.a. Overseas Petroleum Tradeing (SAL), Overseas Petroleum Company.

Dunant Street, Snoubra Sector, Beirut, Lebanon.

Providing support to the Syrian regime and benefiting from the regime by organising covert shipments of oil to the Syrian regime.

23.7.2014

55.

Tri Oceans Trading

35b Saray El Maadi Tower, Corniche El Nile, Cairo, Egypt, Postal Code 11431 P.O. Box: 1313 Maadi

Providing support to the Syrian regime and benefiting from the regime by organising covert shipments of oil to the Syrian regime.

23.7.2014

56.

The Baniyas Refinery Company a.k.a. Banias, Banyas.

Banias Refinery Building, 26 Latkia Main Road, Tartous, P.O. Box 26, Syria.

Subsidiary of the General Corporation for Refining and Distribution of Petroleum Products (GCRDPP), a section of the Ministry of Petroleum and Mineral Resources. As such it provides financial support to the Syrian regime.

23.7.2014

57.

The Homs Refinery Company. a.k.a Hims, General Company for Homs Refinery.

General Company for Homs Refinery Building, 352 Tripoli Street, Homs, P.O. Box 352, Syria.

Subsidiary of the General Corporation for Refining and Distribution of Petroleum Products (GCRDPP), a section of the Ministry of Petroleum and Mineral Resources. As such is provides financial support to the Syrian regime.

23.7.2014

58.

Army Supply Bureau

PO Box 3361, Damascus

Involved in the procurement of military equipment in support of the regime, and therefore responsible for the violent repression of the civilian population in Syria. Branch of Syrian Ministry of Defence.

23.7.2014

59.

Industrial Establishment of Defence. a.k.a. Industrial Establishment of Defense (IED), Industrial Establishment for Defence, Defence Factories Establishment, Establissements Industriels de la Defense (EID), Establissement Industrial de la Defence (ETINDE), Coefficient Defense Foundation.

Al Thawraa Street, P.O. Box 2330 Damascas, or Al-Hameh, Damascas Countryside, P.O. Box 2230.

Involved in the procurement of military equipment for the regime, and therefore responsible for the violent repression of the civilian population in Syria. Branch of Syrian Ministry of Defence.

23.7.2014

60.

Higher Institute for Applied Sciences and Technology (HISAT)

P.O. Box 31983, Barzeh

Affiliated to and a subsidiary of the Syrian Scientific Studies and Research Centre (SSRC) which is already designated. It provides training and support to the SSRC and is therefore responsible for the violent repression of the civilian population.

23.7.2014

61.

National Standards & Calibration Laboratory (NSCL)

P.O. Box 4470 Damascus

Affiliated to and a subsidiary of the Syrian Scientific Studies and Research Centre (SSRC) which is already designated. It provides training and support to the SSRC and is therefore responsible for the violent repression of the civilian population.

23.7.2014

62.

El Jazireh a.k.a. Al Jazerra

Shaheen Building, 2nd floor, Sami el Solh, Beyrouth; sector of hydrocarbons

Owned or controlled by Ayman Jaber, therefore associated with a designated person.

23.7.2014


23.7.2014   

EN

Official Journal of the European Union

L 217/13


COMMISSION IMPLEMENTING REGULATION (EU) No 794/2014

of 22 July 2014

establishing the standard import values for determining the entry price of certain fruit and vegetables

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1),

Having regard to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (2), and in particular Article 136(1) thereof,

Whereas:

(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,

HAS ADOPTED THIS REGULATION:

Article 1

The standard import values referred to in Article 136 of Implementing Regulation (EU) No 543/2011 are fixed in the Annex to this Regulation.

Article 2

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 22 July 2014.

For the Commission,

On behalf of the President,

Jerzy PLEWA

Director-General for Agriculture and Rural Development


(1)  OJ L 299, 16.11.2007, p. 1.

(2)  OJ L 157, 15.6.2011, p. 1.


ANNEX

Standard import values for determining the entry price of certain fruit and vegetables

(EUR/100 kg)

CN code

Third country code (1)

Standard import value

0702 00 00

MK

59,9

TR

57,9

XS

56,8

ZZ

58,2

0707 00 05

MK

27,7

TR

79,1

ZZ

53,4

0709 93 10

TR

92,4

ZZ

92,4

0805 50 10

AR

113,7

BO

100,6

CL

116,3

EG

75,0

NZ

145,2

TR

74,0

UY

124,4

ZA

122,2

ZZ

108,9

0806 10 10

BR

145,7

CL

45,2

EG

145,4

TR

80,5

ZZ

104,2

0808 10 80

AR

204,8

BR

126,0

CL

110,3

NZ

129,2

PE

57,3

US

145,0

ZA

136,7

ZZ

129,9

0808 30 90

AR

181,2

CL

91,6

NZ

97,5

ZA

109,5

ZZ

120,0

0809 10 00

MK

86,8

TR

231,6

XS

80,5

ZZ

133,0

0809 29 00

TR

348,5

US

563,9

ZZ

456,2

0809 30

MK

75,2

TR

142,2

ZZ

108,7

0809 40 05

BA

53,1

MK

53,5

ZZ

53,3


(1)  Nomenclature of countries laid down by Commission Regulation (EC) No 1833/2006 (OJ L 354, 14.12.2006, p. 19). Code ‘ZZ’ stands for ‘of other origin’.


23.7.2014   

EN

Official Journal of the European Union

L 217/16


REGULATION OF THE EUROPEAN CENTRAL BANK (EU) No 795/2014

of 3 July 2014

on oversight requirements for systemically important payment systems

(ECB/2014/28)

THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,

Having regard to the Treaty on the Functioning of the European Union and, in particular Article 127(2) thereof,

Having regard to the Statute of the European System of Central Banks and of the European Central Bank and, in particular Article 3.1, Article 22 and the first indent of Article 34.1 thereof,

Whereas:

(1)

The fourth indent of Article 127(2) of the Treaty and the fourth indent of Article 3.1 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’) empower the Eurosystem to promote the smooth operation of payment systems.

(2)

The Eurosystem promotes the smooth operation of payment systems, inter alia, by conducting oversight.

(3)

In January 2001, the Eurosystem adopted the Core Principles for Systemically Important Payment Systems developed by the Committee on Payment and Settlement Systems (CPSS) of the Bank for International Settlements (BIS) as minimum requirements for systemically important payment systems (SIPS) (1).

(4)

In April 2012, the Core Principles for Systemically Important Payment Systems were replaced by the CPSS and the Technical Committee of the International Organization of Securities Commission's (IOSCO) principles for financial market infrastructures (hereinafter the ‘CPSS-IOSCO principles’) (2), which harmonise and strengthen existing international oversight standards for, inter alia, SIPS.

(5)

According to the CPSS-IOSCO principles, SIPS should be subject to effective oversight, against clearly defined and publicly disclosed criteria, because of their potential to trigger systemic risks if insufficiently protected against the risks to which they are exposed. In addition, competent authorities should have sufficient powers and resources to fulfil their respective tasks, including taking corrective action. The CPSS-IOSCO recommends implementing these principles to the fullest extent allowed by the national legal and regulatory frameworks.

(6)

Therefore, and in order to ensure the efficiency and soundness of SIPS, the European Central Bank (ECB) has decided to implement the CPSS-IOSCO principles by means of a regulation. Authorities in other countries are also expected to similarly introduce and apply the CPSS-IOSCO principles in their respective legal and regulatory framework to the fullest extent allowed by such framework.

(7)

This Regulation covers SIPS, including both large-value payment systems and retail payment systems of systemic importance. It applies to payment systems operated both by central banks and private operators. The CPSS-IOSCO principles acknowledge that there are exceptional cases where they are applied differently to payment systems operated by central banks due to requirements laid down in relevant law, regulation, or policy. The Eurosystem has public policy objectives, responsibilities and an institutional set-up defined in the Treaty and the Statute of the ESCB meaning that Eurosystem SIPS may be exempted from certain requirements under this Regulation. Against this background, Eurosystem SIPS should be exempted from specific requirements on governance, wind-down plans, equity and liquid assets, collateral and investment risks, which cover the same areas as the respective requirements formally adopted by the Governing Council. These exemptions are specified in several provisions of the Regulation.

(8)

Under Guideline ECB/2012/27 of 5 December 2012 on a Trans-European Automated Real-time Gross settlement Express Transfer system (TARGET2) (3) TARGET2 has a decentralised structure linking together a multiplicity of payment systems. The TARGET2 component systems are harmonised to the greatest extent possible with certain exceptions in the event of national law constraints. TARGET2 is also characterised by a single technical platform called the Single Shared Platform. The Governing Council has final competence in relation to TARGET2 and safeguards its public function: this governance arrangement is reflected in the oversight of TARGET2.

(9)

The efficiency and soundness of a SIPS requires compliance with applicable national laws and clear rules, procedures and contracts under which it operates. Compliance with the law refers to the legal systems of all countries in which a SIPS operator or its participants operate.

(10)

The efficiency and soundness of a SIPS also depends on the clarity and appropriateness of its governance arrangements, which must be clearly documented.

(11)

A sound and evolving framework to comprehensively manage legal, credit, liquidity, operational, general business, custody, investment and other risks is essential to identify, measure, monitor and manage the entire range of risks that arise in or are borne by a SIPS operator. This also holds true for the soundness and resilience of a SIPS operator's collateral framework participant default rules and procedures and business continuity plans.

(12)

The reduction of systemic risk requires, inter alia, settlement finality. The Union has adopted Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (4). Directive 98/26/EC requires the rules for systems designated under it to define the moment of entry (after which transfer orders shall be legally enforceable and, even in the event of insolvency proceedings against a participant, binding on third parties) and the moment of irrevocability of transfer orders. Intraday or real time settlement may also be advisable if compatible with the SIPS general business model and necessary to enable the SIPS operator and participants to manage their respective credit and liquidity risks.

(13)

Objective, risk-based, and publicly disclosed criteria for participation in a SIPS, permitting fair and (subject to acceptable risk control standards) open access to a SIPS, promote the safety and efficiency of the SIPS and of the markets it serves, while not restricting free provision of services to a disproportionate extent.

(14)

Provisions of this Regulation requiring a SIPS operator to collect, process and transmit data should be without prejudice to any applicable rules on protection of data of participants or customers.

(15)

An overall efficient and effective SIPS, with clearly defined, measurable and achievable goals and objectives, is best equipped to meet the needs of the SIPS participants and the markets it serves.

(16)

The ECB has recourse to the national central banks to carry out ESCB tasks to the extent deemed possible and appropriate.

(17)

The requirements laid down in this Regulation are proportionate to the specific risks and exposures of SIPS.

(18)

The possibility for competent authorities to request corrective measures to remedy or avoid repetition of non-compliance with this Regulation, and the possibility for the ECB to impose effective, proportionate and dissuasive sanctions for infringements of this Regulation are essential elements in implementing the CPSS-IOSCO principles to the fullest extent allowed under the Treaty and the Statute of the ESCB.

(19)

It is necessary to subject compliance with the oversight requirements set by this Regulation to a transitional period, allowing for the SIPS operators to familiarise themselves with and to implement the requirements,

HAS ADOPTED THIS REGULATION:

Article 1

Subject matter and scope

1.   This Regulation lays down oversight requirements for SIPS.

2.   The Governing Council shall adopt a decision identifying the payment systems that are subject to this Regulation, their respective operators and competent authorities. This list shall be maintained on the ECB's website and updated after each change.

3.   A payment system shall be identified as a SIPS if: (a) it is eligible to be notified as a system pursuant to Directive 98/26/EC by a Member State whose currency is the euro or its operator is established in the euro area, including establishment by means of a branch, through which the system is operated; and (b) at least two of the following occur over a calendar year:

(i)

the total daily average value of euro-denominated payments processed exceeds EUR 10 billion;

(ii)

its market share is at least one of the following:

15 % of total volume of euro-denominated payments,

5 % of total volume of euro-denominated cross-border payments,

75 % of total volume of euro-denominated payments at the level of a Member State whose currency is the euro;

(iii)

its cross-border activity (i.e. participants established in a country other than that of the SIPS operator and/or cross border links with other payment systems) involves five or more countries and generates a minimum of 33 % of the total volume of euro-denominated payments processed by that SIPS;

(iv)

it is used for the settlement of other FMIs.

4.   SIPS operators shall ensure compliance of the SIPS they operate with the requirements set out in Articles 3 to 21.

Article 2

Definitions

For the purposes of this Regulation:

(1)

‘payment system’ means a formal arrangement between three or more participants, not counting possible settlement banks, central counterparties, clearing houses or indirect participants, with common rules and standardised arrangements for the execution of transfer orders between the participants;

(2)

‘transfer order’ has the same meaning as defined in Article 2(i) first indent of Directive 98/26/EC;

(3)

‘systemic risk’ means the risk of a participant or the SIPS operator not meeting their respective obligations in a SIPS will cause other participants and/or the SIPS operator to be unable to meet their obligations when they become due, potentially with spillover effects threatening the stability of or confidence in the financial system;

(4)

‘SIPS operator’ means the legal entity legally responsible for operating a SIPS;

(5)

‘competent authority’ means the Eurosystem central bank with primary oversight responsibility identified as such pursuant to Article 1(2);

(6)

‘Eurosystem SIPS’ means SIPS owned and operated by a Eurosystem central bank;

(7)

‘legal risk’ means the risk arising from the application of law or regulation, usually resulting in a loss;

(8)

‘credit risk’ means the risk that a counterparty, whether a participant or other entity, will be unable to fully meet its financial obligations when they fall due or at any time in the future;

(9)

‘liquidity risk’ means the risk that a counterparty, whether a participant or other entity, will have insufficient funds to meet its financial obligations when they fall due, although it may have sufficient funds to do so in the future;

(10)

‘operational risk’ means the risk that deficiencies in information systems or internal processes, human error, management failures, or disruptions caused by external events or outsourced services will result in the reduction, deterioration or breakdown of services provided by a SIPS;

(11)

‘custody risk’ means the risk of incurring a loss on assets held in custody in the event of a custodian's or sub-custodian's insolvency, negligence, fraud, poor administration or inadequate recordkeeping;

(12)

‘investment risk’ means the risk of loss faced by a SIPS operator or participant when the SIPS operator invests its own or its participants' resources, e.g. collateral;

(13)

‘market risk’ means the risk of losses, in both on- and off-balance sheet positions, arising from movements in market prices;

(14)

‘deferred net settlement system’ (DNS) means a system which settles on a net basis at the end of a predefined settlement cycle, e.g. at the end of, or during, the business day;

(15)

‘cross-border collateral’ means collateral for which, from the perspective of the country in which the assets are accepted as collateral, at least one of the following is foreign: (a) the currency of denomination; (b) the country in which the assets are located; or (c) the country in which the issuer is established;

(16)

‘cross-border payment’ means a payment between participants established in different countries;

(17)

‘financial market infrastructure’ (FMI) means a multilateral system among participating institutions, including the system operator, used to clear, settle, or record payments, securities, derivatives, or other financial transactions;

(18)

‘participant’ means an entity that is identified or recognised by a payment system and, either directly or indirectly, is allowed to send transfer orders to that system and is capable of receiving transfer orders from it;

(19)

‘the Board’ means the administrative or supervisory board of a SIPS operator, or both, in accordance with national law;

(20)

‘the Management’ means executive directors, i.e. members of a unitary board who are engaged in the daily management of the SIPS operator and members of a managerial board of the SIPS operator in a dual board system;

(21)

‘relevant stakeholders’ means participants, FMIs that have an impact on the risk in a SIPS, and, on a case-by-case basis, other affected market actors;

(22)

‘credit exposure’ means an amount or value at risk that a participant will not settle for full value, either when due or at any time thereafter;

(23)

‘collateral’ means an asset or third-party commitment that is used by a collateral provider to secure an obligation vis-à-vis a collateral taker. Collateral includes both domestic and cross-border collateral;

(24)

‘liquidity provider’ means a provider of cash under Articles 5(3), 6(5), 8(1), 8(9) and 8(11) or assets under Article 8(4), including a SIPS participant or external party;

(25)

‘extreme but plausible market conditions’ means a comprehensive set of historical and hypothetical conditions, including the most-volatile periods that have been experienced by the markets the SIPS serves;

(26)

‘intended settlement date’ means the date that is entered into SIPS as the settlement date by the sender of a transfer order;

(27)

‘general business risk’ means any potential impairment of the financial position of the SIPS as a business concern as a consequence of a decline in its revenues or an increase in its expenses, such that expenses exceed revenues and result in a loss that must be charged against capital;

(28)

‘recovery plan’ means a plan developed by a SIPS operator to re-establish the smooth operation of a SIPS;

(29)

‘orderly wind-down plan’ means a plan developed by a SIPS operator for the orderly closure of a SIPS;

(30)

‘material’ qualifies a risk, a dependency and/or a change which may affect the ability of an entity to perform or provide services as expected;

(31)

‘relevant authorities’ means authorities who have a legitimate interest in accessing information from a SIPS to fulfil their statutory requirements, e.g. resolution authorities and supervisors of major participants;

(32)

‘principal risk’ means the risk that a counterparty will lose the full value involved in a transaction, i.e. either the risk that a seller of a financial asset will irrevocably deliver the asset, but not receive payment, or the risk that a buyer of a financial asset will irrevocably pay for, but not receive the asset;

(33)

‘custodian bank’ means a bank holding and safeguarding the financial assets of third parties;

(34)

‘settlement bank’ means a bank holding accounts with regards to payments, where the discharge of obligations arising from a payment system takes place;

(35)

nostro agent’ means a bank used by the participants in a SIPS for settlement;

(36)

‘one-sided payment’ means a payment involving only one funds transfer in one currency;

(37)

‘two-sided payment’ means a payment involving two funds transfers in different currencies in an exchange-for-value settlement system;

(38)

‘wrong-way risk’ means risk arising from exposure to a participant or issuer when the collateral provided by that participant or issued by that issuer is highly correlated with its credit risk;

(39)

‘business day’ has the same meaning as defined in Article 2(n) of Directive 98/26/EC.

Article 3

Legal soundness

1.   A SIPS operator shall assess whether the applicable law in all relevant legal systems provides a high degree of certainty for and supports each material aspect of the activities of its SIPS.

2.   A SIPS operator shall establish SIPS rules and procedures and enter into contracts, which are clear and consistent with the applicable law in all relevant legal systems.

3.   A SIPS operator shall be able to specify the applicable law, rules, procedures and contracts for the operation of a SIPS to the competent authority, participants, and, where relevant, participants' customers, in a clear and understandable way.

4.   A SIPS operator shall take measures to ensure that its rules, procedures, and contracts are enforceable in all relevant legal systems, and that the actions it takes under such rules, procedures and contracts will not be voided, reversed, or subject to stays.

5.   A SIPS operator conducting business in more than one legal system shall identify and mitigate the risks arising from any potential conflict of laws.

6.   A SIPS operator shall use its best efforts to ensure the SIPS's designation under Directive 98/26/EC.

Article 4

Governance

1.   A SIPS operator shall have documented objectives which place a high priority on the safety and efficiency of the SIPS. The objectives shall explicitly support financial stability and other relevant public interest considerations, in particular open and efficient financial markets.

2.   A SIPS operator shall have documented governance arrangements that provide clear and direct lines of responsibility and accountability. These arrangements shall be made available to the competent authority, owners and participants. A SIPS operator shall make abridged versions thereof available to the public.

3.   The Board's roles and responsibilities shall be clearly defined. The Board's roles and responsibilities shall include all of the following:

(a)

establishing clear strategic aims for the SIPS;

(b)

establishing documented procedures for the SIPS' functioning, including procedures to identify, address and manage conflicts of interest of its members;

(c)

with the exception of Eurosystem SIPS, ensuring the effective selection, monitoring, and, where appropriate, removal of members of Management;

(d)

with the exception of Eurosystem SIPS, establishing appropriate compensation policies, consistent with best practices and based on long-term achievements.

4.   Except for Eurosystem SIPS, the Board shall review both its overall performance and the performance of its individual Board members at least annually.

5.   The Board's composition shall ensure integrity and, except for Eurosystem SIPS, an appropriate mix of technical skills, knowledge and experience both of SIPS and of the financial market in general, allowing the Board to fulfil its respective roles and responsibilities. The composition shall depend further on the general allocation of competencies according to the national law. Except for Eurosystem SIPS, when permitted by national law, the Board shall include non-executive board members.

6.   Management's role, responsibilities and reporting lines shall be clearly defined. The composition shall ensure integrity and an appropriate mix of technical skills, knowledge and experience both of SIPS and of the financial market in general, allowing Management to fulfil its responsibilities for the operation and risk management of the SIPS operator. Management's responsibilities shall include, under Board direction, ensuring all of the following:

(a)

that the SIPS operator's activities are consistent with its objectives, strategy and risk tolerance;

(b)

that internal controls and related procedures are appropriately designed, executed and overseen in order to promote the SIPS operator's objectives;

(c)

that internal controls and related procedures are subject to regular review and testing by well-trained and sufficiently staffed risk-management and internal-audit functions;

(d)

active involvement in the risk-control process;

(e)

that sufficient resources are allocated to the SIPS's risk-management framework.

7.   The Board shall establish and oversee a documented risk-management framework, which shall:

(a)

include the SIPS operator's risk-tolerance policy;

(b)

assign responsibilities and accountability for risk decisions;

(c)

address decision making in crises and emergencies;

(d)

address internal control functions.

The Board shall ensure that the risk management and internal control functions have sufficient authority, independence, resources and access to the Board.

8.   The Board shall ensure that major decisions affecting the SIPS's technical and functional setup, rules and overall strategy, in particular, with regard to choice of a clearing and settlement arrangement, operating structure, scope of products cleared or settled, and use of technology and procedures, appropriately reflect the legitimate interests of the SIPS's relevant stakeholders. The relevant stakeholders and, where appropriate, the public shall be consulted reasonably in advance on such decisions.

Article 5

Framework for the comprehensive management of risks

1.   A SIPS operator shall establish and maintain a sound risk-management framework to comprehensively identify, measure, monitor and manage the range of risks that arise in or are borne by the SIPS. It shall review the risk-management framework at least annually. The risk-management framework shall:

(a)

include the SIPS operator's risk-tolerance policy and appropriate risk-management tools;

(b)

assign responsibility and accountability for risk decisions;

(c)

address decision-making in emergency situations relating to a SIPS, including developments in financial markets potentially having an adverse effect on market liquidity and the stability of the financial system in any Member State whose currency is the euro where the SIPS operator or one of the participants are established.

2.   A SIPS operator shall provide incentives to participants and, where relevant, their customers to manage and limit the risks they pose to and bear from the SIPS. With regard to participants, such incentives shall include an effective, proportionate and dissuasive financial penalties regime or loss-sharing arrangements, or both.

3.   A SIPS operator shall review the material risks the SIPS bears from and poses to other entities, including, inter alia, FMIs, settlement banks, liquidity providers and service providers, as a result of interdependencies at least annually. The SIPS operator shall develop risk-management tools that are robust and proportionate to the identified level of risk.

4.   A SIPS operator shall define the SIPS' critical operations and services. The SIPS operator shall identify specific scenarios that may prevent it from being able to provide these critical operations and services as a going concern and assess the effectiveness of all options for recovery or, with the exception of Eurosystem SIPS, an orderly wind-down. It shall review the SIPS' critical operations and services at least annually. Based on this assessment, a SIPS operator shall prepare a plan for the SIPS' recovery or, except for Eurosystem SIPS, an orderly wind-down. The recovery and orderly wind-down plan shall contain, inter alia, a substantive summary of the key recovery and orderly wind-down strategies, a restatement of the SIPS's critical operations and services, and a description of the measures needed to implement the key strategies. A SIPS operator shall, where applicable, provide relevant authorities with the information needed for purposes of resolution planning. It shall review the recovery and orderly wind-down plan at least annually.

Article 6

Credit risk

1.   A SIPS operator shall establish a robust framework to measure, monitor and manage its credit exposures to its participants and credit exposures amongst participants arising from the SIPS payment, clearing, and settlement processes.

2.   A SIPS operator shall identify all sources of credit risk. The measurement and monitoring of credit exposures shall take place throughout the day, using timely information and appropriate risk-management tools.

3.   A SIPS operator, including one operating a DNS with a settlement guarantee, that in the course of SIPS operations incurs credit exposure vis-à-vis its participants, shall cover its credit exposure to each participant using collateral, guarantee funds, equity (after deduction of the amount dedicated to cover general business risk) or other equivalent financial resources.

4.   A SIPS operator, including one operating a DNS with no settlement guarantee, but where participants face credit exposures arising from the SIPS payment, clearing and settlement processes, shall have in place rules or contractual arrangements with these participants. The rules or contractual arrangements shall ensure that the participants will provide sufficient resources, as defined in paragraph 3, to cover credit exposures resulting from the SIPS payment, clearing and settlement processes in relation to the two participants which, together with their affiliates, have the largest aggregate credit exposure.

5.   A SIPS operator shall establish rules and procedures to address losses directly resulting from defaults by one or more participants on their obligations to the SIPS. These rules and procedures shall address the allocation of potentially uncovered losses, including the repayment of any funds a SIPS operator may borrow from liquidity providers. They shall include the SIPS operator's rules and procedures to replenish any financial resources used by the SIPS during a stress event, to the level laid down in paragraph 3.

Article 7

Collateral

1.   A SIPS operator shall only accept the following assets as collateral: (a) cash; and (b) assets with low credit, liquidity and market risks, i.e. assets for which the SIPS operator can demonstrate to the competent authority based on an adequate internal assessment that they meet all of the following conditions:

(i)

they have been issued by an issuer with low credit risk;

(ii)

they are freely transferable without any legal constraint or third party claims;

(iii)

they are denominated in a currency the risk of which is managed by the SIPS operator;

(iv)

they have reliable price data published on a regular basis;

(v)

they are not otherwise subject to significant wrong-way risk;

(vi)

they are not issued by the participant providing the collateral or an entity that is part of the same group as that participant, except in the case of a covered bond and only where the assets in the cover pool are appropriately segregated within a robust legal framework and satisfy the requirements set out in points (i) to (v).

In performing the internal assessment of points (i) to (vi), the SIPS operator shall define, document and apply an objective methodology.

2.   A SIPS operator shall establish and implement policies and procedures to monitor the credit quality, market liquidity and price volatility of each asset accepted as collateral. A SIPS operator shall monitor on a regular basis, and at least annually, the adequacy of its valuation policies and procedures. Such review shall also be carried out whenever a material change occurs that affects the SIPS's risk exposure. A SIPS operator shall mark-to-market its collateral at least on a daily basis.

3.   A SIPS operator shall establish stable and conservative haircuts and shall test them at least annually and take into account stressed market conditions. Haircut procedures shall be validated by personnel other than those who created and applied the haircut procedures at least annually.

4.   A SIPS operator shall take measures to avoid concentrated holdings of certain assets where this would significantly impair the ability to liquidate such assets quickly without significant adverse price effects.

5.   A SIPS operator that accepts cross-border collateral shall identify and mitigate the risks associated with its use and ensure that the cross-border collateral can be used in a timely manner.

6.   A SIPS operator shall use an effective and operationally flexible collateral management system.

7.   Paragraph 1 shall not apply to Eurosystem SIPS.

Article 8

Liquidity risk

1.   A SIPS operator shall establish a comprehensive framework to manage liquidity risks posed by the SIPS's participants, settlement banks, nostro agents, custodian banks, liquidity providers and other relevant entities.

2.   A SIPS operator shall put in place operational and analytical tools, which enable it to identify, measure and monitor settlement and funding flows, including the use of intraday liquidity, on an on-going and timely basis.

3.   A SIPS operator shall hold, or ensure that participants hold, sufficient liquid resources at all times, in all currencies in which it operates, to effect same-day settlement of payment obligations in a wide range of potential stress scenarios. Where appropriate, this shall include intraday or multiday settlement. The stress scenarios shall include: (a) a default, under extreme but plausible market conditions, of the participant which, together with its affiliates, has the largest aggregate payment obligation; and (b) other scenarios in accordance with paragraph 11.

4.   A SIPS operator settling one-sided payments in euro shall hold, or ensure that participants hold, liquid resources, in accordance with paragraph 3, to effect timely settlement of payment obligations in the event of a default of the participant which, together with its affiliates, has the largest aggregate payment obligation as determined by paragraph 3(a) in any of the following ways:

(a)

in cash with the Eurosystem; or

(b)

in eligible collateral as defined in the collateral framework of the Eurosystem laid down in Guideline ECB/2011/14 of 20 September 2011 on monetary policy instruments and procedures of the Eurosystem (5), in particular if the SIPS operator has access to Eurosystem standing facilities.

5.   A SIPS operator settling one-sided payments in euro shall hold, or ensure that participants hold, additional liquid resources, in accordance with paragraph 3(b), in the ways defined in paragraph 4 or with a creditworthy commercial bank in one or more of the following instruments:

(a)

committed lines of credit;

(b)

committed foreign exchange swaps;

(c)

committed repos;

(d)

assets as defined in Article 7(1), which are held by a custodian;

(e)

investments that are readily available and convertible into cash with prearranged funding arrangements for which the SIPS operator can demonstrate to the competent authority, based on an adequate internal assessment, that the funding arrangements are highly reliable, even in extreme but plausible market conditions.

The SIPS operator shall be prepared to demonstrate to the competent authority, based on an adequate internal assessment, that the commercial bank is creditworthy.

6.   A SIPS operator settling two-sided payments or one-sided payments in currencies other than the euro shall hold, or ensure that participants hold, liquid resources, in accordance with paragraph 3, in ways defined in paragraph 5.

7.   Where a SIPS operator supplements the resources referred to in paragraph 3 with other assets, these assets shall be likely to be marketable or acceptable as collateral (for e.g. lines of credit, swaps, or repos) on an ad hoc basis following a default, even if this cannot be reliably prearranged or guaranteed under extreme but plausible market conditions. Where a participant supplements the resources referred to in paragraph 3 with other assets, the SIPS operator shall ensure that these other assets meet the requirements set out in the first sentence. Assets shall be presumed as likely to be marketable or acceptable as collateral if the SIPS operator has taken into account the rules and practices of the relevant central bank on the eligibility of collateral.

8.   A SIPS operator shall not assume that emergency central bank credit will be available.

9.   A SIPS operator shall carry out due diligence to verify that each provider of the SIPS' liquid resources under paragraph 3: (a) has sufficient and up-to-date information to understand and to manage its liquidity risks associated with the provision of cash or assets; and (b) has the capacity to provide cash or assets as required. A SIPS operator shall review its compliance with the due diligence obligation at least annually. Only entities with access to credit from the central bank of issue shall be accepted as liquidity providers. A SIPS operator shall regularly test its procedures for accessing the SIPS liquid resources.

10.   A SIPS operator with access to central bank accounts, payment services or securities services shall use these services, where practicable.

11.   A SIPS operator shall, through rigorous stress testing determine how much cash and other assets are required to satisfy the requirements under paragraphs 3 and 4. It shall regularly review this amount, inter alia, by considering a wide range of scenarios, including:

(a)

the peak historic price volatilities of the above mentioned assets;

(b)

shifts in other market factors including, inter alia, price determinants and yield curves;

(c)

one or more participant defaults on the same day and on different subsequent days;

(d)

simultaneous pressures in funding and assets markets;

(e)

a spectrum of forward-looking stress scenarios in a variety of extreme but plausible market conditions.

Such scenarios shall also take into account the design and operation of the SIPS; examine all entities that might pose material liquidity risks to the SIPS, including, inter alia, settlement banks, nostro agents, custodian banks, liquidity providers, and linked FMIs; and where appropriate, cover a multiday period.

12.   A SIPS operator shall document its reasons for holding, and shall have appropriate governance arrangements relating to, the amount of cash and other assets maintained by the SIPS operator or participants. It shall establish clear procedures for reporting the results of its stress tests to the Board. It shall use these results to evaluate the adequacy of and make adjustments to its liquidity risk-management framework.

13.   A SIPS operator shall establish clear rules and procedures enabling the SIPS to effect same-day and, where appropriate, timely intraday and multiday settlement of payment obligations following the default of one or more of its participants. These rules and procedures shall:

(a)

address unforeseen and potentially uncovered liquidity shortfalls;

(b)

aim to avoid the unwinding, revocation or delay of same-day settlement of payment obligations;

(c)

indicate how to replenish the cash and other assets used by the SIPS during a stress event, to the extent required pursuant to paragraphs 3 to 5.

Article 9

Final settlement

A SIPS operator shall establish rules and procedures to enable final settlement to take place no later than the end of the intended settlement date.

Article 10

Money settlements

1.   A SIPS operator settling one-sided payments in euro shall ensure that final settlement takes place in central bank money.

2.   A SIPS operator settling two-sided payments or one-sided payments in currencies other than euro shall ensure that final settlement takes place in central bank money where practicable and available.

3.   If central bank money is not used, a SIPS operator shall ensure that money settlements take place using a settlement asset with little or no credit and liquidity risk.

4.   If a settlement takes place in commercial bank money, the SIPS operator shall monitor, manage, and limit credit and liquidity risks arising from the commercial settlement banks. In particular, the SIPS operator shall establish and monitor adherence to strict criteria for its settlement banks that take account of, among other things, their regulation and supervision, creditworthiness, capitalisation, access to liquidity, and operational reliability. The SIPS operator shall also monitor and manage the concentration of credit and liquidity exposures to the SIPS's commercial settlement banks.

5.   If a SIPS operator conducts money settlements on its own books, it shall minimise and strictly control its credit and liquidity risks.

6.   If a settlement takes place in commercial bank money, a SIPS operator's legal agreements with any commercial settlement banks shall state clearly:

(a)

when transfers on the books of individual settlement banks are expected to occur;

(b)

that transfers are to be final when effected;

(c)

that funds received shall be transferable as soon as possible, at least by the end of the day.

Article 11

Payment versus payment

A SIPS operator using a payment versus payment mechanism shall eliminate principal risk by ensuring that the final settlement of one obligation occurs if and only if the final settlement of the linked obligation also occurs. This rule shall be followed regardless of whether settlement takes place on a gross or net basis and when finality occurs.

Article 12

Participant-default rules and procedures

1.   A SIPS operator shall establish a definition of participant default in the SIPS rules and procedures, which shall include, as a minimum, a participant's failure to meet its financial obligations when they fall due, as a result, inter alia, ofoperational reasons, breach of agreement, or the commencement of insolvency proceedings against such participant. A SIPS operator shall distinguish between automatic and discretionary default. In the case of discretionary default, the SIPS operator shall specify which entity shall exercise that discretion. It shall review this definition at least annually.

2.   A SIPS operator shall have default rules and procedures that enable it to continue to meet its obligations in the event of a participant default, which address the replenishment of resources following a default. The rules and procedures shall define, as a minimum, all of the following:

(a)

the actions that a SIPS operator can take when a default occurs;

(b)

whether taking such actions is automatic or discretionary and the means by which that discretion is exercised;

(c)

potential changes to a SIPS operator's normal settlement practices to ensure timely settlement;

(d)

the management of payments at different stages of processing;

(e)

the probable sequencing of actions;

(f)

the roles, obligations and responsibilities of the relevant parties, including non-defaulting participants;

(g)

other mechanisms to be activated to limit the impact of a default.

3.   A SIPS operator shall be prepared to implement its default rules and procedures, including any appropriate discretionary procedures provided for in its rules. A SIPS operator shall ensure, inter alia, that: (a) it has the operational capacity, including sufficient well-trained personnel, to implement the procedures outlined in paragraph 2 in a timely manner; and (b) the SIPS's rules and procedures address documentation, information and communication needs, and, when more than one FMI or authority is involved, coordination.

4.   A SIPS operator shall publicly disclose the key aspects of the rules and procedures outlined in paragraph 2, including, as a minimum, all of the following:

(a)

the circumstances in which action shall be taken;

(b)

who shall take those actions;

(c)

the scope of the actions which shall be taken;

(d)

the mechanisms to address a SIPS operator's obligations towards non-defaulting participants.

5.   A SIPS operator shall test and review the SIPS rules and procedures outlined in paragraph 2 at least annually or after any material changes to the SIPS affecting those rules and procedures. A SIPS operator shall involve SIPS participants and relevant stakeholders in such testing and review.

Article 13

General business risk

1.   A SIPS operator shall establish robust management and control systems to identify, monitor, and manage general business risks, including losses resulting from poor execution of business strategy, negative cash flows, or unexpected and excessively large operating expenses.

2.   A SIPS operator shall hold liquid net assets funded, by equity, e.g. common stock, disclosed reserves or other retained earnings, so that it can continue operations and services as a going concern if it incurs general business losses. The amount of these assets shall be determined by its general business risk profile and the length of time required to achieve a recovery or orderly wind-down of its critical operations and services if such action is taken.

3.   A SIPS operator shall maintain a viable recovery or, except for Eurosystem SIPS, orderly wind-down plan.

4.   A SIPS operator shall hold sufficient liquid net assets funded by equity to implement the plan referred in paragraph 3. As a minimum, a SIPS operator shall hold liquid net assets funded by equity with a value equal to at least six months of current operating expenses. These assets are in addition to resources held to cover participant defaults or other risks covered under Articles 6 and 8. Equity held under international risk-based capital standards may be included to avoid duplicate capital requirements.

5.   Assets held to cover general business risk shall be of sufficient liquidity and high quality to be available in a timely manner. The SIPS operator shall be able to realise such assets with little, if any, adverse price effect, so that it can continue operations as a going concern if it incurs general business losses.

6.   A SIPS operator shall establish a viable plan for raising additional equity should its equity fall close to or below the amount referred to in paragraph 4. The plan shall be submitted to the Board for approval and be updated at least annually.

7.   Paragraphs 2 and 4 to 6 shall not apply to Eurosystem SIPS.

Article 14

Custody and investment risks

1.   A SIPS operator shall hold its own and participants' assets with supervised and regulated entities (hereinafter the ‘custodians’), that have accounting practices, safekeeping procedures and internal controls that fully protect these assets against the risk of loss in the event of a custodian's or sub-custodian's insolvency, negligence, fraud, poor administration or inadequate recordkeeping.

2.   A SIPS operator shall have timely access to its assets and the assets provided by the participants.

3.   A SIPS operator shall evaluate and understand its exposures to its custodian banks, taking into account the full scope of its relationships with each.

4.   A SIPS operator shall establish its investment strategy, which shall be consistent with its overall risk-management strategy and fully disclosed to the participants. It shall review the investment strategy at least annually.

5.   A SIPS operator's investments under its investment strategy shall be secured by, or be claims on, high-quality obligors. A SIPS operator shall define the criteria for high-quality obligors. Investments shall be in instruments with minimal credit, market and liquidity risks.

6.   Paragraphs 3 to 5 shall not apply to Eurosystem SIPS.

Article 15

Operational risk

1.   A SIPS operator shall establish a robust framework with appropriate systems, policies, procedures and controls to identify, monitor and manage operational risk.

2.   A SIPS operator shall establish service level and operational reliability objectives and policies designed to achieve those objectives. It shall review the objectives and policies at least annually.

3.   A SIPS operator shall ensure that a SIPS, at all times, has scalable capacity to handle increases in payment volumes that occur due to stress events, and that it can achieve its service level objectives.

4.   A SIPS operator shall establish comprehensive physical and information security policies that adequately identify, assess and manage all potential vulnerabilities and threats. It shall review the policies at least annually.

5.   A SIPS operator shall establish a business continuity plan that addresses events posing a significant risk of disrupting the SIPS' operations. The plan shall include the use of a secondary site and be designed to ensure that critical information technology systems can resume operations within two hours of those events. The plan shall be designed in such a way that the SIPS is always able to settle all payments due by the end of the business day on which the disruption occurs. The SIPS operator shall test the plan and review it at least annually.

6.   A SIPS operator shall identify critical participants based, in particular, on payment volumes and values and their potential impact on other participants and the SIPS as a whole, in the event of a significant operational problem experienced by such participants.

7.   A SIPS operator shall identify, monitor, and manage the risks that critical participants, other FMIs, and service and utility providers might pose to the SIPS' operations.

Article 16

Access and participation criteria

1.   A SIPS operator shall establish and publicly disclose non-discriminatory access and participation criteria to the SIPS's services for direct, and, where relevant, indirect participants and for other FMIs. It shall review the criteria at least annually.

2.   The access and participation criteria of paragraph 1 shall be justified in terms of the safety and efficiency of the SIPS and the markets it serves, and be tailored to and commensurate with the SIPS's specific risks. In compliance with the principle of proportionality, a SIPS operator shall set requirements that restrict access to the minimum possible extent. If a SIPS operator denies access to an entity, it shall give reasons in writing for this, based on a comprehensive risk analysis.

3.   A SIPS operator shall monitor participants' compliance with the SIPS's access and participation criteria on an ongoing basis. It shall establish and publicly disclose non-discriminatory procedures to facilitate the suspension and orderly termination of a participant's right of participation where the participant fails to comply with the access and participation criteria. It shall review the procedures at least annually.

Article 17

Tiered participation arrangements

1.   For the purpose of risk management, a SIPS operator shall ensure that the SIPS's rules, procedures and contractual arrangements allow it to gather information about indirect participation in order to identify, monitor and manage any material risks to the SIPS arising from participation. This information shall, as a minimum, cover all of the following:

(a)

the proportion of activity that direct participants conduct on behalf of indirect participants;

(b)

the number of indirect participants that settle via individual direct participants;

(c)

the volumes or values of payments in the SIPS originating from each indirect participant;

(d)

the volumes or values of payments under point (c) in proportion to those of the direct participant through which the indirect participant accesses the SIPS.

2.   A SIPS operator shall identify material dependencies between direct and indirect participants that might affect the SIPS.

3.   A SIPS operator shall identify indirect participants who pose material risks to the SIPS and the direct participants through which they access the SIPS with a view to managing these risks.

4.   A SIPS operator shall review the risks arising from tiered participation arrangements at least annually. It shall take mitigating action when needed to ensure that the risks are properly managed.

Article 18

Efficiency and effectiveness

1.   A SIPS operator shall have a process to identify and meet the needs of the markets the SIPS serves, in particular, with regard to:

(a)

choice of a clearing and settlement arrangement;

(b)

operating structure;

(c)

scope of products cleared or settled;

(d)

use of technology and procedures.

2.   A SIPS operator shall have clearly defined goals and objectives that are measurable and achievable, such as in the areas of minimum service levels, risk-management expectations and business priorities.

3.   A SIPS operator shall have established mechanisms for the regular, at least annual, review of the requirements laid down in paragraphs 1 and 2.

Article 19

Communication procedures and standards

A SIPS operator shall use or accommodate, relevant internationally accepted communication procedures and standards in order to facilitate efficient payment, clearing, settlement and recording.

Article 20

Disclosure of rules, key procedures and market data

1.   A SIPS operator shall adopt clear and comprehensive rules and procedures that are fully disclosed to participants. Relevant rules and key procedures shall also be publicly disclosed.

2.   A SIPS operator shall disclose clear descriptions of the system's design and operations, as well as the SIPS operator's and participants' rights and obligations, so that participants can assess the risks they would incur by participating in the SIPS.

3.   A SIPS operator shall provide all necessary and appropriate documentation and training to facilitate participants' understanding of the SIPS' rules and procedures and the risks they face from participating in the SIPS.

4.   A SIPS operator shall publicly disclose the SIPS's fees at the level of individual services it offers as well as its discount policies. The SIPS operator shall provide clear descriptions of priced services for comparability purposes.

5.   A SIPS operator shall complete and disclose publicly responses to the CPSS-IOSCO Disclosure framework for financial market infrastructures. It shall update its responses following material changes to the system or its environment, but at least every two years. A SIPS operator shall also, at a minimum, disclose basic data on transaction volumes and values.

Article 21

Disclosure to the competent authority

The competent authority shall have the right to obtain from a SIPS operator all information and documents necessary to assess compliance with the requirements under this Regulation. A SIPS operator shall report the respective specific information to the competent authority.

Article 22

Corrective measures

1.   Where a SIPS operator has not complied with this Regulation, the competent authority shall:

(a)

inform the SIPS operator of the nature of the non-compliance; and

(b)

provide the SIPS operator the opportunity to be heard and provide explanations.

2.   Based on the information provided by the SIPS operator, the competent authority may instruct the SIPS operator to implement specific corrective measures in order to remedy the non-compliance and/or avoid repeating it.

3.   The competent authority may impose corrective measures immediately where it identifies, with a reasoned opinion, that the case of non-compliance is serious enough to require immediate action.

4.   The competent authority shall immediately inform the ECB of any corrective measures imposed on a SIPS operator.

5.   Corrective measures may be imposed independent of or in parallel with sanctions in accordance with Council Regulation (EC) No 2532/98 of 23 November 1998 concerning the powers of the European Central Bank to impose sanctions (6).

Article 23

Sanctions

In case of an infringement of this Regulation, the ECB shall impose sanctions, in accordance with Regulation (EC) No 2532/98 and Regulation (EC) No 2157/1999 of the European Central Bank of 23 September 1999 on the powers of the European Central Bank to impose sanctions (ECB/1999/4) (7). The ECB shall publish a notice on the methodology for the calculation of the amount of the sanctions.

Article 24

Review

The Governing Council shall review the general application of this Regulation by no later than two years following the date on which it enters into force, and thereafter every two years, and assess whether it needs to be amended.

Article 25

Final provisions

1.   This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2.   SIPS operators shall have one year from the date on which the decision of the Governing Council in accordance with Article 1(2) has been notified to them to comply with the requirements laid down in this Regulation.

3.   This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.

Done at Frankfurt am Main, 3 July 2014.

For the Governing Council of the ECB

The President of the ECB

Mario DRAGHI


(1)  Available on the BIS's website at www.bis.org/publ/cpss43.pdf

(2)  Available on the BIS's website at www.bis.org/publ/cpss101a.pdf

(3)  OJ L 30, 30.1.2013, p. 1.

(4)  OJ L 166, 11.6.1998, p. 45.

(5)  OJ L 331, 14.12.2011, p. 1.

(6)  OJ L 318, 27.11.1998, p. 4.

(7)  OJ L 264, 12.10.1999, p. 21.


DECISIONS

23.7.2014   

EN

Official Journal of the European Union

L 217/31


COUNCIL DECISION 2014/482/CFSP

of 22 July 2014

amending Decision 2012/392/CFSP on the European Union CSDP mission in Niger (EUCAP Sahel Niger)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 28, Article 42(4) and Article 43(2) thereof,

Having regard to the proposal from the High Representative of the Union for Foreign Affairs and Security Policy,

Whereas:

(1)

On 16 July 2012, the Council adopted Decision 2012/392/CFSP (1) which expires on 15 July 2014.

(2)

On 28 October 2013, the Council adopted Decision 2013/533/CFSP (2) providing a financial reference amount for the period until 15 July 2014.

(3)

On 28 March 2014, the Political and Security Committee (PSC) recommended to extend the European Union CSDP mission in Niger (EUCAP Sahel Niger) for a period of two years in accordance with the Strategic Review.

(4)

On 2 May 2014, the High Representative of the Union for Foreign Affairs and Security Policy (HR) received a letter from the Nigerien authorities supporting the extension of EUCAP Sahel Niger for two years.

(5)

EUCAP Sahel Niger will be conducted in the context of a situation which may deteriorate and could impede the achievement of the objectives of the Union's external action as set out in Article 21 of the Treaty on European Union,

HAS ADOPTED THIS DECISION:

Article 1

Decision 2012/392/CFSP is amended as follows:

(1)

Articles 2 and 3 are replaced by the following:

‘Article 2

Objectives

In the context of the implementation of the European Union Strategy for Security and Development in the Sahel, EUCAP Sahel Niger shall aim at enabling the Nigerien authorities to define and implement their own national Security Strategy. EUCAP Sahel Niger shall also aim at contributing to the development of an integrated, multidisciplinary, coherent, sustainable, and human-rights-based approach among the various Nigerien security actors in the fight against terrorism and organised crime.

Article 3

Tasks

1.   In order to fulfil the objectives set out in Article 2, EUCAP Sahel Niger shall:

(a)

be ready to support the definition and implementation of a Nigerien Security Strategy while continuing advising and assisting in the implementation of the security dimension of the Nigerien Strategy for Security and Development in the North;

(b)

facilitate the coordination of regional and international projects supporting Niger in the fight against terrorism and organised crime;

(c)

strengthen the rule of law through the development of criminal investigation capacities, and in this context develop and implement adequate training programmes;

(d)

support the development of Nigerien Security and Defence Forces' sustainability;

(e)

contribute to the identification, planning and implementation of projects in the security field.

2.   EUCAP Sahel Niger shall focus on the activities mentioned in paragraph 1 which contribute to improving the control of the territory of Niger, including in coordination with the Nigerien Armed Forces.

3.   EUCAP Sahel Niger shall not carry out any executive function.’.

(2)

Article 4 is amended as follows:

(a)

paragraph 3 is replaced by the following:

‘3.   EUCAP Sahel Niger shall be structured in accordance with its planning documents.’;

(b)

paragraph 4 is deleted.

(3)

Article 6 is amended as follows:

(a)

the following paragraph is inserted:

‘1a.   The Head of Mission shall represent EUCAP Sahel Niger in its operations area. The Head of Mission may delegate management tasks related to staff and financial matters to staff members of EUCAP Sahel Niger under his/her overall responsibility.’;

(b)

paragraph 3 is replaced by the following:

‘3.   The Head of Mission shall issue instructions to all EUCAP Sahel Niger staff, including the Brussels Support Element, for the effective conduct of the EUCAP Sahel Niger in theatre, assuming its coordination and day-to-day management, and following the instructions at the strategic level of the Civilian Operation Commander.’;

(c)

paragraphs 4 and 8 are deleted.

(4)

In Article 7, paragraph 4 is replaced by the following:

‘4.   The conditions of employment and the rights and obligations of international and local staff shall be laid down in the contracts to be concluded between EUCAP Sahel Niger and the staff member concerned.’.

(5)

In Article 11, paragraph 5 is replaced by the following:

‘5.   The Head of Mission shall ensure the protection of EU classified information in accordance with Council Decision 2013/488/EU (3).

(3)  Council Decision 2013/488/EU of 23 September 2013 on the security rules for protecting EU classified information (OJ L 274, 15.10.2013, p. 1).’."

(6)

The following Article is inserted:

‘Article 12a

Legal arrangements

As required in order to implement this Decision, EUCAP Sahel Niger shall have the capacity to procure services and supplies, enter into contracts and administrative arrangements, employ staff, hold bank accounts, acquire and dispose of assets, discharge its liabilities and be a party to legal proceedings.’.

(7)

Article 13 is replaced by the following:

‘Article 13

Financial arrangements

1.   The financial reference amount intended to cover the expenditure related to EUCAP Sahel Niger for the period from 16 July 2012 to 31 October 2013 shall be EUR 8 700 000.

The financial reference amount to cover the expenditure related to EUCAP Sahel Niger for the period from 1 November 2013 to 15 July 2014 shall be EUR 6 500 000.

The financial reference amount to cover the expenditure related to EUCAP Sahel Niger for the period from 16 July 2014 to 15 July 2015 shall be EUR 9 155 000.

2.   All expenditure shall be managed in accordance with the rules and procedures applicable to the general budget of the Union. Nationals of third States and host country nationals shall be allowed to tender for contracts. Subject to the Commission's approval, EUCAP Sahel Niger may conclude technical arrangements with Member States, the host State, participating third States and other international actors regarding the provision of equipment, services and premises to EUCAP Sahel Niger.

3.   EUCAP Sahel Niger shall be responsible for the implementation of its budget. For that purpose, EUCAP Sahel Niger shall sign an agreement with the Commission.

4.   Without prejudice to the Agreement between the European Union and the Republic of Niger on the status of the European Union mission in Niger CSDP (EUCAP Sahel Niger) (4), EUCAP Sahel Niger shall be responsible for any claims and obligations arising from the implementation of its mandate as of 16 July 2014, with the exception of claims relating to serious misconduct by the Head of Mission, for which he/she shall bear responsibility.

5.   The implementation of the financial arrangements shall be without prejudice to the chain of command as provided for in Articles 4, 5 and 6 and the operational requirements of EUCAP Sahel Niger, including compatibility of equipment and interoperability of its teams.

6.   Expenditure shall be eligible as of 16 July 2012.

(4)  OJ L 242, 11.9.2013, p. 2.’."

(8)

The following Article is inserted:

‘Article 13a

Project Cell

1.   EUCAP Sahel Niger shall have a Project Cell for identifying and implementing projects. EUCAP Sahel Niger shall, as appropriate, facilitate and provide advice on projects implementedby Member States and third States under their responsibility in areas related to EUCAP Sahel Niger and in support of its objectives.

2.   EUCAP Sahel Niger shall be authorised to seek recourse to financial contributions from the Member States or third States to implement a project if that project has been identified as supplementing in a consistent manner EUCAP Sahel Niger's other actions and it is:

(a)

provided for in the budgetary impact statement relating to this Decision; or

(b)

integrated in the budgetary impact statement during the mandate of EUCAP Sahel Niger by means of an amendment to the budgetary impact statement requested by the Head of Mission.

EUCAP Sahel Niger shall conclude an arrangement with contributing States, covering in particular the specific procedures for dealing with complaints from third parties concerning damage caused as a result of acts or omissions by EUCAP Sahel Niger in the use of the funds provided by those States. Under no circumstances may the contributing States hold the Union or the HR liable for acts or omissions by EUCAP Sahel Niger in the use of the funds provided by those States.

3.   The PSC shall agree on the acceptance of financial contributions from third States to the Project Cell.’.

(9)

In Article 15 ‘Decision 2011/292/EU’ is replaced by ‘Decision 2013/488/EU’.

(10)

In Article 16 the second paragraph is replaced by the following:

‘It shall apply until 15 July 2016.’.

Article 2

This Decision shall enter into force on the date of its adoption.

It shall apply from 16 July 2014.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  Council Decision 2012/392/CFSP of 16 July 2012 on the European Union CSDP mission in Niger (EUCAP Sahel Niger) (OJ L 187, 17.7.2012, p. 48).

(2)  Council Decision 2013/533/CFSP of 28 October 2013 amending Decision 2012/392/CFSP on the European Union CSDP mission in Niger (EUCAP Sahel Niger) (OJ L 288, 30.10.2013, p. 68).


23.7.2014   

EN

Official Journal of the European Union

L 217/35


COUNCIL DECISION 2014/483/CFSP

of 22 July 2014

updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism, and repealing Decision 2014/72/CFSP

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 29 thereof,

Whereas:

(1)

On 27 December 2001, the Council adopted Common Position 2001/931/CFSP (1).

(2)

On 10 February 2014, the Council adopted Decision 2014/72/CFSP (2) updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP (‘the list’).

(3)

In accordance with Article 1(6) of Common Position 2001/931/CFSP, it is necessary to review at regular intervals the names of persons, groups and entities on the list to ensure that there are grounds for keeping them thereon.

(4)

This Decision sets out the result of the review that the Council has carried out in respect of persons, groups and entities to which Articles 2, 3 and 4 of Common Position 2001/931/CFSP apply.

(5)

The Council has determined that there are no longer grounds for keeping one person on the list.

(6)

The Council has concluded that the persons, groups and entities to which Articles 2, 3 and 4 of Common Position 2001/931/CFSP apply have been involved in terrorist acts within the meaning of Article 1(2) and (3) of Common Position 2001/931/CFSP, that a decision has been taken with respect to them by a competent authority within the meaning of Article 1(4) of that Common Position, and that they should continue to be subject to the specific restrictive measures provided for therein.

(7)

The list should be updated accordingly and Decision 2014/72/CFSP should be repealed,

HAS ADOPTED THIS DECISION:

Article 1

The list of persons, groups and entities to which Articles 2, 3 and 4 of Common Position 2001/931/CFSP apply is set out in the Annex to this Decision.

Article 2

Decision 2014/72/CFSP is hereby repealed.

Article 3

This Decision shall enter into force on the day of its publication in the Official Journal of the European Union.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism (OJ L 344, 28.12.2001, p. 93).

(2)  Council Decision 2014/72/CFSP of 10 February 2014 updating and amending the list of persons, groups and entities subject to Articles 2, 3 and 4 of Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Decision 2013/395/CFSP (OJ L 40, 11.2.2014, p. 56).


ANNEX

List of persons, groups and entities referred to in Article 1

I.   PERSONS

1.

ABDOLLAHI Hamed (a.k.a Mustafa Abdullahi), born August 11, 1960 in Iran. Passport: D9004878.

2.

AL-NASSER, Abdelkarim Hussein Mohamed, born in Al Ihsa (Saudi Arabia), citizen of Saudi Arabia.

3.

AL YACOUB, Ibrahim Salih Mohammed, born 16.10.1966 in Tarut (Saudi Arabia), citizen of Saudi Arabia.

4.

ARBABSIAR Manssor (a.k.a. Mansour Arbabsiar), born March 6 or 15, 1955 in Iran. Iranian and US national. Passport: C2002515 (Iran); Passport: 477845448 (USA). National ID no.: 07442833, expiry date 15 March 2016 (USA driving licence).

5.

BOUYERI, Mohammed (a.k.a. Abu ZUBAIR, a.k.a. SOBIAR, a.k.a. Abu ZOUBAIR), born 8.3.1978 in Amsterdam (The Netherlands) — member of the ‘Hofstadgroep’.

6.

IZZ-AL-DIN, Hasan (a.k.a GARBAYA, Ahmed, a.k.a. SA-ID, a.k.a. SALWWAN, Samir), Lebanon, born 1963 in Lebanon, citizen of Lebanon.

7.

MOHAMMED, Khalid Shaikh (a.k.a. ALI, Salem, a.k.a. BIN KHALID, Fahd Bin Adballah, a.k.a. HENIN, Ashraf Refaat Nabith, a.k.a. WADOOD, Khalid Adbul), born 14.4.1965 or 1.3.1964 in Pakistan, passport No 488555.

8.

SHAHLAI Abdul Reza (a.k.a Abdol Reza Shala'i, a.k.a. Abd-al Reza Shalai, a.k.a. Abdorreza Shahlai, a.k.a. Abdolreza Shahla'i, a.k.a. Abdul-Reza Shahlaee, a.k.a.Hajj Yusef, a.k.a. Haji Yusif, a.k.a.Hajji Yasir, a.k.a.Hajji Yusif, a.k.a.Yusuf Abu-al-Karkh), born circa 1957 in Iran. Addresses: (1) Kermanshah, Iran, (2) Mehran Military Base, Ilam Province, Iran.

9.

SHAKURI Ali Gholam, born circa 1965 in Tehran, Iran.

10.

SOLEIMANI Qasem (a.k.a Ghasem Soleymani, a.k.a Qasmi Sulayman, a.k.a Qasem Soleymani, a.k.a Qasem Solaimani, a.k.a Qasem Salimani, a.k.a Qasem Solemani, a.k.a Qasem Sulaimani, a.k.a Qasem Sulemani), born March 11, 1957 in Iran. Iranian national. Passport: 008827 (Iran Diplomatic), issued 1999. Title: Major General.

II.   GROUPS AND ENTITIES

1.

‘Abu Nidal Organisation’ — ‘ANO’ (a.k.a. ‘Fatah Revolutionary Council’, a.k.a. ‘Arab Revolutionary Brigades’, a.k.a. ‘Black September’, a.k.a. ‘Revolutionary Organisation of Socialist Muslims’).

2.

‘Al-Aqsa Martyrs' Brigade’.

3.

‘Al-Aqsa e.V.’.

4.

‘Al-Takfir’ and ‘Al-Hijra’.

5.

‘Babbar Khalsa’.

6.

‘Communist Party of the Philippines’, including ‘New People's Army’ — ‘NPA’, Philippines.

7.

‘Gama'a al-Islamiyya’ (a.k.a. ‘Al-Gama'a al-Islamiyya’) (‘Islamic Group’ — ‘IG’).

8.

‘İslami Büyük Doğu Akıncılar Cephesi’ — ‘IBDA-C’ (‘Great Islamic Eastern Warriors Front’).

9.

‘Hamas’, including ‘Hamas-Izz al-Din al-Qassem’.

10.

‘Hizballah Military Wing’ (a.k.a. ‘Hezbollah Military Wing’, a.k.a. ‘Hizbullah Military Wing’, a.k.a. ‘Hizbollah Military Wing’, a.k.a. ‘Hezballah Military Wing’, a.k.a. ‘Hisbollah Military Wing’, a.k.a. ‘Hizbu'llah Military Wing’ a.k.a. ‘Hizb Allah Military Wing’, a.k.a. ‘Jihad Council’ (and all units reporting to it, including the External Security Organisation))

11.

‘Hizbul Mujahideen’ — ‘HM’.

12.

‘Hofstadgroep’.

13.

‘Holy Land Foundation for Relief and Development’.

14.

‘International Sikh Youth Federation’ — ‘ISYF’.

15.

‘Khalistan Zindabad Force’ — ‘KZF’.

16.

‘Kurdistan Workers' Party’ — ‘PKK’, (a.k.a. ‘KADEK’, a.k.a. ‘KONGRA-GEL’).

17.

‘Liberation Tigers of Tamil Eelam’ — ‘LTTE’.

18.

‘Ejército de Liberación Nacional’ (‘National Liberation Army’).

19.

‘Palestinian Islamic Jihad’ — ‘PIJ’.

20.

‘Popular Front for the Liberation of Palestine’ — ‘PFLP’.

21.

‘Popular Front for the Liberation of Palestine — General Command’ (a.k.a. ‘PFLP — General Command’).

22.

‘Fuerzas armadas revolucionarias de Colombia’ — ‘FARC’ (‘Revolutionary Armed Forces of Colombia’).

23.

‘Devrimci Halk Kurtuluș Partisi-Cephesi’ — ‘DHKP/C’ (a.k.a. ‘Devrimci Sol’ (‘Revolutionary Left’), a.k.a. ‘Dev Sol’) (‘Revolutionary People's Liberation Army/Front/Party’).

24.

‘Sendero Luminoso’ — ‘SL’ (‘Shining Path’).

25.

‘Teyrbazen Azadiya Kurdistan’ — ‘TAK’ (a.k.a. ‘Kurdistan Freedom Falcons’, a.k.a. ‘Kurdistan Freedom Hawks’).


23.7.2014   

EN

Official Journal of the European Union

L 217/38


COUNCIL DECISION 2014/484/CFSP

of 22 July 2014

amending Common Position 2003/495/CFSP on Iraq

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 29 thereof,

Whereas:

(1)

On 7 July 2003, the Council adopted Common Position 2003/495/CFSP (1) to implement United Nations Security Council (UNSC) Resolution 1483 (2003).

(2)

Clarity is needed concerning certain provisions of Common Position 2003/495/CFSP,

HAS ADOPTED THIS DECISION:

Article 1

In Common Position 2003/495/CFSP, the following Article is inserted:

‘Article 2a

No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the persons and entities referred to in Article 2(b).

Exemptions may be made for funds and economic resources which are:

(a)

necessary to satisfy basic needs of the persons referred to in Article 2(b), and their dependent family members, including payments for foodstuffs, rent or mortgage, medicines and medical treatment, taxes, insurance premiums, and public utility charges;

(b)

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

(c)

intended exclusively for payment of fees or service charges for routine holding or maintenance of frozen funds and economic resources; or

(d)

necessary for extraordinary expenses, provided that the relevant competent authority has notified the grounds on which it considers that a specific authorisation should be granted to the competent authorities of the other Member States and to the Commission at least two weeks prior to the authorisation.’

Article 2

This Decision shall enter into force on the date of its publication in the Official Journal of the European Union.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  Council Common Position 2003/495/CFSP of 7 July 2003 on Iraq and repealing Common Positions 96/741/CFSP and 2002/599/CFSP (OJ L 169, 8.7.2003, p. 72).


23.7.2014   

EN

Official Journal of the European Union

L 217/39


COUNCIL DECISION 2014/485/CFSP

of 22 July 2014

amending Decision 2012/389/CFSP on the European Union Mission on Regional Maritime Capacity Building in the Horn of Africa (EUCAP NESTOR)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 28, Article 42(4) and Article 43(2) thereof,

Having regard to the proposal from the High Representative of the Union for Foreign Affairs and Security Policy,

Whereas:

(1)

On 16 July 2012, the Council adopted Decision 2012/389/CFSP (1). That Decision expires on 15 July 2014.

(2)

On 18 March 2014, the Political and Security Committee (PSC) recommended extending the Mission until 12 December 2016 in accordance with the Strategic Review.

(3)

EUCAP NESTOR will be conducted in the context of a situation which may deteriorate and could impede the achievement of the objectives of the Union's external action as set out in Article 21 of the Treaty on European Union (TEU),

HAS ADOPTED THIS DECISION:

Article 1

Decision 2012/389/CFSP is amended as follows:

(1)

Article 2 is replaced by the following:

‘Article 2

Mission Statement

EUCAP NESTOR is to assist countries in the Horn of Africa and the Western Indian Ocean in strengthening their maritime security capacity in order to enable them to fight piracy more effectively. EUCAP NESTOR will have primary focus on Somalia, and a secondary focus on Djibouti, the Seychelles and Tanzania.’.

(2)

Article 3 is replaced by the following:

‘Article 3

Objectives and tasks

1.   In order to achieve the Mission Statement set out in Article 2, EUCAP NESTOR shall:

(a)

enhance the capacity of the States mentioned in Article 2 to exert effective maritime governance over their coastline, internal waters, territorial seas and exclusive economic zones;

(b)

support these States in taking ownership of the fight against piracy in accordance with the rule of law and human rights standards;

(c)

strengthen regional cooperation and coordination of maritime security;

(d)

make a targeted and specific contribution to ongoing international efforts.

2.   To achieve the objectives, EUCAP NESTOR shall operate in accordance with the lines of operation and tasks set out in the operational planning documents approved by the Council.

3.   EUCAP NESTOR shall not carry out any executive function.’.

(3)

Article 4 is amended as follows:

(a)

paragraph 2 is replaced by the following:

‘2.   EUCAP NESTOR shall be structured in accordance with its planning documents.’;

(b)

paragraph 3 is deleted.

(4)

Article 6 is amended as follows:

(a)

the following paragraph is inserted:

‘1a.   The Head of Mission shall be the representative of EUCAP NESTOR in its action area. The Head of Mission may delegate management tasks in staff and financial matters to staff members of EUCAP NESTOR for whom the Head of Mission has overall responsibility.’;

(b)

paragraph 4 is deleted;

(c)

paragraph 8 is deleted.

(5)

In Article 7, paragraph 4 is replaced by the following:

‘4.   The conditions of employment and the rights and obligations of international and local staff shall be laid down in the contracts to be concluded between EUCAP NESTOR and the staff member concerned.’.

(6)

In Article 11, paragraph 5 is replaced by the following:

‘5.   The Head of Mission shall ensure the protection of EU classified information in accordance with Council Decision 2013/488/EU. (2)

(2)  Council Decision of 23 September 2013 on the security rules for protecting EU classified information (OJ L 274, 15.10.2013, p. 1.).’."

(7)

The following Article is inserted:

‘Article 12a

Legal arrangements

EUCAP NESTOR shall have the capacity to procure services and supplies, enter into contracts and administrative arrangements, employ staff, hold bank accounts, acquire and dispose of assets, discharge its liabilities and to be a party to legal proceedings, as required in order to implement this Decision.’.

(8)

Article 13 is replaced by the following:

‘Article 13

Financial arrangements

1.   The financial reference amount intended to cover the expenditure related to EUCAP NESTOR from 16 July 2012 to 15 November 2013 shall be EUR 22 880 000.

The financial reference amount intended to cover the expenditure related to EUCAP NESTOR for the period from 16 November 2013 to 15 October 2014 shall be EUR 11 950 000.

2.   All expenditure shall be managed in accordance with the rules and procedures applicable to the general budget of the Union. Nationals of third States and host country nationals shall be allowed to tender for contracts. Subject to the Commission's approval, the EUCAP NESTOR may conclude technical arrangements with Member States, the host State, participating third States and other international actors regarding the provision of equipment, services and premises to EUCAP NESTOR.

3.   EUCAP NESTOR shall be responsible for the implementation of its budget. For this purpose, EUCAP NESTOR shall sign an agreement with the Commission.

4.   Without prejudice to the existing provisions on the status of EUCAP NESTOR and its personnel, EUCAP NESTOR shall be responsible for any claims and obligations arising from the implementation of the mandate starting from 16 July 2014, with the exception of any claims relating to serious misconduct by the Head of Mission, for which the Head of Mission shall bear responsibility.

5.   The implementation of the financial arrangements shall be without prejudice to the chain of command as provided for in Articles 4, 5 and 6 and the operational requirements of EUCAP NESTOR, including compatibility of equipment and interoperability of its teams.

6.   Expenditure shall be eligible as of 16 July 2012.’.

(9)

The following Article is inserted:

‘Article 13a

Project Cell

1.   EUCAP NESTOR shall have a Project Cell for identifying and implementing projects. EUCAP NESTOR shall, as appropriate, facilitate and provide advice on projects implemented by Member States and third States under their responsibility in areas related to EUCAP NESTOR and in support of its objectives.

2.   EUCAP NESTOR shall be authorised to seek recourse to financial contributions from the Member States or from third States to implement projects identified as supplementing EUCAP NESTOR's other actions in a consistent manner, if the project is:

(a)

provided for in the financial statement relating to this Decision; or

(b)

integrated during the mandate by means of an amendment to the financial statement requested by the Head of Mission.

EUCAP NESTOR shall conclude an arrangement with those States, covering in particular the specific procedures for dealing with any complaint from third parties concerning damage caused as a result of acts or omissions by EUCAP NESTOR in the use of the funds provided by those States. Under no circumstances may the contributing States hold the Union or the HR liable for acts or omissions by EUCAP NESTOR in the use of the funds provided by those States.

3.   The PSC shall agree on the acceptance of a financial contribution from third States to the Project Cell.’.

(10)

In Article 15, the reference, ‘Decision 2011/292/EU’ is replaced by ‘Decision 2013/488/EU’.

(11)

In Article 16, the second paragraph is replaced by the following:

‘It shall apply until 12 December 2016.’.

Article 2

Entry into force

This Decision shall enter into force on the date of its adoption.

It shall apply from 16 July 2014.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  OJ L 187, 17.7.2012, p. 40.


23.7.2014   

EN

Official Journal of the European Union

L 217/42


COUNCIL DECISION 2014/486/CFSP

of 22 July 2014

on the European Union Advisory Mission for Civilian Security Sector Reform Ukraine (EUAM Ukraine)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union and in particular Article 28, Article 42(4) and Article 43(2) thereof,

Having regard to the proposal from the High Representative of the Union for Foreign Affairs and Security Policy,

Whereas:

(1)

On 14 April 2014, the Council expressed its readiness to assist Ukraine in the field of civilian security sector reform, support of police and rule of law and to elaborate a Political Framework for Crisis Approach (PFCA) in Ukraine, examining all options, including through a possible Common Security and Defence Policy (CSDP) mission.

(2)

On 8 May 2014, the Foreign Minister of Ukraine sent a letter to the High Representative of the Union for Foreign Affairs and Security Policy (HR) expressing an interest in the deployment of a CSDP mission in Ukraine.

(3)

On 12 May 2014, the Council recalled its readiness to assist Ukraine in the field of civilian security sector reform, it welcomed the PFCA in Ukraine and gave the European External Action Service (EEAS) the task of preparing a Crisis Management Concept (CMC) for a possible civilian CSDP mission. It also underlined the importance of coordination and complementarity with the Organisation for Security and Cooperation in Europe (OSCE) and other international actors.

(4)

On 23 June 2014, the Council approved the CMC for a possible CSDP action in support of civilian security sector reform.

(5)

On 11 July 2014, the Foreign Minister of Ukraine sent a letter to the HR accepting the deployment of a CSDP mission.

(6)

EUAM Ukraine will be conducted in the context of a situation which may deteriorate and could impede the achievement of the objectives of the Union's external action as set out in Article 21 of the Treaty on European Union (TEU),

HAS ADOPTED THIS DECISION:

Article 1

Mission

The Union shall conduct an Advisory Mission for Civilian Security Sector Reform Ukraine (EUAM Ukraine) to assist Ukraine in the field of civilian security sector reform, including police and rule of law.

Article 2

Mandate

1.   In support of Ukraine's commitments to security sector reform, the non-executive civilian CSDP mission shall mentor and advise relevant Ukrainian bodies in the elaboration of renewed security strategies and in the consequent implementation of relevant comprehensive and cohesive reform efforts, in order to:

create a conceptual framework for planning and implementing reforms that result in sustainable security services delivering the rule of law, in a manner that contributes to enhancing their legitimacy and to increased public confidence and trust, in full respect for human rights and consistent with the constitutional reform process;

reorganise and restructure the security services in a way which permits recovering control and accountability over them.

To achieve its objectives, EUAM Ukraine shall operate in accordance with the parameters set out in the Crisis Management Concept (CMC) approved by the Council on 23 June 2014 and in the operational planning documents.

2.   Within its initial mandate, the mission shall assist in a comprehensive civilian security sector reform planning process, supporting rapid preparation and implementation of the reform measures.

Article 3

Chain of command and structure

1.   EUAM Ukraine shall have a unified chain of command for crisis management operations.

2.   EUAM Ukraine shall have its Headquarters in Kyiv.

3.   EUAM Ukraine shall be structured in accordance with its planning documents.

Article 4

Planning and launch of EUAM Ukraine

1.   The mission shall be launched by a Council Decision on the date recommended by the Civilian Operation Commander of EUAM Ukraine once it has reached its initial operating capability.

2.   The tasks of the Core team of EUAM Ukraine shall be to prepare the installation of the mission in terms of logistics, infrastructure and security and to provide the input needed to draw up the operational planning documents as well as the second budgetary impact statement.

Article 5

Civilian Operation Commander

1.   The Director of the Civilian Planning and Conduct Capability (CPCC) shall be the Civilian Operation Commander for EUAM Ukraine. The CPCC shall be at the disposal of the Civilian Operation Commander for the planning and conduct of EUAM Ukraine.

2.   The Civilian Operation Commander, under the political control and strategic direction of the Political and Security Committee (PSC) and overall authority of the HR, shall exercise command and control of EUAM Ukraine.

3.   The Civilian Operation Commander shall ensure, with regard to the conduct of operations, the proper and effective implementation of the Council's decisions as well as the PSC's decisions, including by issuing instructions as required to the Head of Mission and providing him with advice and technical support.

4.   The Civilian Operation Commander shall report to the Council through the HR.

5.   All seconded staff shall remain under the full command of the national authorities of the seconding State in accordance with national rules, the Union institution concerned, or the European External Action Service (EEAS). Those authorities shall transfer Operational Control of their staff to the Civilian Operation Commander.

6.   The Civilian Operation Commander shall have overall responsibility for ensuring that the Union's duty of care is properly discharged.

Article 6

Head of Mission

1.   The Head of Mission shall assume responsibility for, and exercise command and control of, EUAM Ukraine at theatre level. The Head of Mission shall be directly responsible to the Civilian Operation Commander and shall act in accordance with the instructions given by him.

2.   The Head of Mission shall be the representative of EUAM Ukraine in its area of responsibility. The Head of Mission may delegate management tasks in staff and financial matters to staff members of EUAM Ukraine under his overall responsibility.

3.   The Head of Mission shall exercise administrative and logistic responsibility for EUAM Ukraine, including over assets, resources and information placed at the disposal of the mission.

4.   The Head of Mission shall be responsible for disciplinary control over staff. For seconded staff, disciplinary action shall be exercised by the national authority in accordance with national rules, by the Union institution concerned or by the EEAS.

Article 7

Political control and strategic direction

1.   The PSC shall exercise, under the responsibility of the Council and the HR, political control and strategic direction of EUAM Ukraine. The Council shall authorise the PSC to take the relevant decisions in accordance with the third paragraph of Article 38 TEU. That authorisation shall include, in particular, the powers to appoint a Head of Mission, upon a proposal of the HR, and to amend the concept of operations (CONOPS) and the operation plan (OPLAN). The powers of decision with respect to the objectives and termination of EUAM Ukraine shall remain vested in the Council.

2.   The PSC shall report to the Council at regular intervals.

3.   The PSC shall receive, on a regular basis and as required, reports by the Civilian Operation Commander and the Head of Mission on issues falling within their respective areas of responsibility.

Article 8

Staff

1.   EUAM Ukraine shall consist primarily of staff seconded by Member States, Union institutions or the EEAS. Each Member State, each Union institution, and the EEAS shall bear the costs related to any of the staff seconded by it, including travel expenses to and from the place of deployment, salaries, medical coverage and allowances other than applicable daily allowances.

2.   Each Member State, each Union institution, and the EEAS shall be responsible for answering any claims linked to a secondment from, or concerning, a member of staff seconded by it, and for bringing any action against that person.

3.   International and local staff may also be recruited on a contractual basis by EUAM Ukraine if the functions required cannot be provided by personnel seconded by Member States. Exceptionally, in duly justified cases, where no qualified applicants from Member States are available, nationals from participating third States may be recruited on a contractual basis, as appropriate.

4.   The conditions of employment and the rights and obligations of international and local staff shall be laid down in the contracts to be concluded between EUAM Ukraine and the staff members concerned.

Article 9

Status of EUAM Ukraine and its staff

The status of EUAM Ukraine and its staff, including where appropriate the privileges, immunities and further guarantees necessary for the completion and smooth functioning of EUAM Ukraine, shall be the subject of an agreement concluded pursuant to Article 37 TEU and in accordance with the procedure laid down in Article 218 of the Treaty on the Functioning of the European Union.

Article 10

Participation of third States

1.   Without prejudice to the decision-making autonomy of the Union and its single institutional framework, third States may be invited to contribute to EUAM Ukraine, provided that they bear the cost of the staff seconded by them, including salaries, all risk insurance cover, daily subsistence allowances and travel expenses to and from Ukraine, and that they contribute to the running costs of EUAM Ukraine, as appropriate.

2.   Third States contributing to EUAM Ukraine shall have the same rights and obligations as Member States in terms of the day-to-day management of EUAM Ukraine.

3.   The Council hereby authorises the PSC to take the relevant decisions on acceptance of the proposed contributions and to establish a Committee of Contributors.

4.   Detailed arrangements regarding the participation of third States shall be covered by agreements concluded in accordance with Article 37 TEU. Where the Union and a third State conclude or have concluded an agreement establishing a framework for the participation of that third State in Union crisis-management operations, the provisions of that agreement shall apply in the context of EUAM Ukraine.

Article 11

Security

1.   The Civilian Operation Commander shall direct the Head of Mission's planning of security measures and ensure their proper and effective implementation by EUAM Ukraine in accordance with Article 5.

2.   The Head of Mission shall be responsible for the security of EUAM Ukraine and for ensuring compliance with minimum security requirements applicable to EUAM Ukraine, in line with the policy of the Union on the security of personnel deployed outside the Union in an operational capacity under Title V TEU.

3.   The Head of Mission shall be assisted by a Mission Security Officer (MSO), who shall report to the Head of Mission and also maintain a close functional relationship with the EEAS.

4.   As regards security, EUAM Ukraine staff shall receive mandatory security training, adapted to the risk as it is evaluated in the zone of deployment. They shall also receive regular in-theatre refresher training organised by the MSO.

5.   The Head of Mission shall ensure the protection of EU classified information in accordance with Council Decision 2013/488/EU (1).

Article 12

Watch-Keeping Capability

The Watch-Keeping Capability shall be activated for EUAM Ukraine.

Article 13

Legal arrangements

EUAM Ukraine shall have the capacity to procure services and supplies, to enter into contracts and administrative arrangements, to employ staff, to hold bank accounts, to acquire and dispose of assets and to discharge its liabilities, and to be a party to legal proceedings, as required in order to implement this Decision.

Article 14

Financial arrangements

1.   The financial reference amount intended to cover the expenditure related to EUAM Ukraine until 30 November 2014 shall be EUR 2 680 000. The financial reference amount for the subsequent periods shall be decided by the Council.

2.   All expenditure shall be managed in accordance with the rules and procedures applicable to the general budget of the Union. Participation of natural and legal persons in the award of procurement contracts by EUAM Ukraine shall be open without limitations. Moreover, no rule of origin for the goods purchased by EUAM Ukraine shall apply. Subject to the Commission's approval, the Mission may conclude technical arrangements with Member States, the host State, participating third States and other international actors regarding the provision of equipment, services and premises to EUAM Ukraine.

3.   EUAM Ukraine shall be responsible for the implementation of the mission's budget. For this purpose, EUAM Ukraine shall sign an agreement with the Commission.

4.   Without prejudice to the provisions on the status of EUAM Ukraine and its personnel, EUAM Ukraine shall be responsible for any claims and obligations arising from the implementation of the mandate, with the exception of any claims relating to serious misconduct by the Head of Mission, for which the Head of Mission shall bear the responsibility.

5.   The implementation of the financial arrangements shall be without prejudice to the chain of command as provided for in Articles 4, 5 and 6 and the operational requirements of EUAM Ukraine, including compatibility of equipment and interoperability of its teams.

6.   Expenditure shall be eligible from the date when the agreement referred to in paragraph 3 is signed.

Article 15

Project Cell

1.   EUAM Ukraine shall have a Project Cell for identifying and implementing projects. EUAM Ukraine shall, as appropriate, facilitate and provide advice on projects implementedby Member States and third States under their responsibility in areas related to EUAM Ukraine and in support of its objectives.

2.   Subject to paragraph 3, EUAM Ukraine shall be authorised to seek recourse to financial contributions from the Member States or third States to implement projects identified as supplementing in a consistent manner EUAM Ukraine's other actions, if the project is:

provided for in the financial statement relating to this Decision; or

integrated during the mandate by means of an amendment to the financial statement requested by the Head of Mission.

EUAM Ukraine shall conclude an arrangement with those States, covering in particular the specific procedures for dealing with any complaint from third parties concerning damage caused as a result of acts or omissions by EUAM Ukraine in the use of the funds provided by those States. Under no circumstances may the contributing States hold the Union or the HR liable for acts or omissions by EUAM Ukraine in the use of the funds provided by those States.

3.   Financial contributions from third States to the Project Cell shall be subject to acceptance by the PSC.

Article 16

Consistency of the Union's response and coordination

1.   The HR shall ensure the consistency of the implementation of this Decision with the Union's external action as a whole.

2.   Without prejudice to the chain of command, the Head of Mission shall act in close coordination with the Union's delegation in Ukraine to ensure the consistency of Union action in Ukraine. Without interfering in the chain of command, the Head of Delegation in Kyiv shall give political direction at local level to the EUAM Ukraine Head of Mission. The EUAM Ukraine Head of Mission and the Head of Delegation in Kyiv shall initiate consultations as necessary.

3.   Cooperation shall be established between EUAM Ukraine and the European Union Border Assistance Mission to the Republic of Moldova and Ukraine (EUBAM Moldova/Ukraine).

4.   In addition, systematic cooperation, coordination and complementarities with activitiesof other relevant international partners, in particular OSCE, should be sought in order to ensure effective action.

Article 17

Release of information

1.   The HR shall be authorised, if necessary and as required for EUAM Ukraine, to release EU classified information up to ‘RESTREINT UE/EU RESTRICTED’ level generated for the purposes of EUAM Ukraine to the third States associated with this Decision, in accordance with Decision 2013/488/EU.

2.   In the event of a specific and immediate operational need, the HR shall also be authorised to release to the host State any EU classified information up to ‘RESTREINT UE/EU RESTRICTED’ level generated for the purposes of EUAM Ukraine, in accordance with Decision 2013/488/EU. Arrangements between the HR and the competent authorities of the host State shall be drawn up for this purpose.

3.   The HR shall be authorised to release to the third States associated with this Decision any EU non-classified documents connected with the deliberations of the Council relating to EUAM Ukraine and covered by the obligation of professional secrecy pursuant to Article 6(1) of the Council's Rules of Procedure (2).

4.   The HR may delegate such authorisations, as well as the ability to conclude the arrangements referred to in paragraph 2, to EEAS officials, to the Civilian Operation Commander and/or to the Head of Mission in accordance with section VII of Annex VI to Decision 2013/488/EU.

Article 18

Strategic review

The initial mandate of EUAM Ukraine shall be two years. A strategic review shall be conducted a year after launching the mission.

Article 19

Entry into force and duration

This Decision shall enter into force on the day of its adoption.

It shall apply for a period of 24 months starting from the date on which EUAM Ukraine is launched.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  Council Decision 2013/488/EU of 23 September 2013 on the security rules for protecting EU classified information (OJ L 274, 15.10.2013, p. 1).

(2)  Council Decision 2009/937/EU of 1 December 2009 adopting the Council's Rules of Procedure (OJ L 325, 11.12.2009, p. 35).


23.7.2014   

EN

Official Journal of the European Union

L 217/48


COUNCIL IMPLEMENTING DECISION 2014/487/CFSP

of 22 July 2014

implementing Decision 2011/137/CFSP concerning restrictive measures in view of the situation in Libya

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 31(2) thereof,

Having regard to Council Decision 2011/137/CFSP of 28 February 2011 concerning restrictive measures in view of the situation in Libya (1), and in particular Article 8(2) thereof,

Whereas:

(1)

On 28 February 2011, the Council adopted Decision 2011/137/CFSP.

(2)

The Council considers that there are no longer grounds for keeping one person on the list set out in Annex IV to Decision 2011/137/CFSP.

(3)

Decision 2011/137/CFSP should therefore be amended accordingly,

HAS ADOPTED THIS DECISION:

Article 1

The entry for the following person shall be deleted from the list set out in Annex IV to Decision 2011/137/CFSP:

23.

ZIDANE, Mohamad Ali.

Article 2

This Decision shall enter into force on the day of its publication in the Official Journal of the European Union.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  OJ L 58, 3.3.2011, p. 53.


23.7.2014   

EN

Official Journal of the European Union

L 217/49


COUNCIL IMPLEMENTING DECISION 2014/488/CFSP

of 22 July 2014

implementing Decision 2013/255/CFSP concerning restrictive measures against Syria

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Article 31(2) thereof.

Having regard to Council Decision 2013/255/CFSP of 31 May 2013 concerning restrictive measures against Syria (1), and in particular Article 30(1) thereof,

Whereas:

(1)

On 31 May 2013, the Council adopted Decision 2013/255/CFSP.

(2)

In view of the gravity of the situation, three persons and nine entities should be added to the list of persons and entities subject to restrictive measures in Annex I to Decision 2013/255/CFSP.

(3)

Decision 2013/255/CFSP should therefore be amended accordingly,

HAS ADOPTED THIS DECISION:

Article 1

The persons and entities listed in the Annex to this Decision shall be added to the list set out in Annex I to Decision 2013/255/CFSP.

Article 2

This Decision shall enter into force on the day of its publication in the Official Journal of the European Union.

Done at Brussels, 22 July 2014.

For the Council

The President

C. ASHTON


(1)  OJ L 147, 1.6.2013, p. 14.


ANNEX

List of persons and entities referred to in Article 1

A.   Persons

 

Name

Identifying information

Reasons

Date of listing

180.

Hashim Anwar al-Aqqad a.k.a. Hashem Aqqad, Hashem Akkad, Hashim Akkad

d.o.b. 1961

Mohagirine, Syria.

Prominent businessman, chairman of the Akkad Group of companies that operate in multiple sectors of the Syrian economy, including oil and gas. Provides support to and benefits from the Syrian regime.

23.7.2014

181.

Colonel Suhayl Hasan a.k.a. Colonel Suhayl al-Hasan, ‘al-Nimir’/‘The Tiger’, Sohail Hassan, Sohail al-Hassan, Suhail Hassan, Lieutenant Colonel Suhayl Hassan, Brigadier General Suhayl Hasan

 

Military commander for the Syrian regime, responsible for violent repression of the civilian population; supports the regime.

23.7.2014

182.

Amr Armanazi a.k.a. Amr Muhammad Najib Al-Armanazi, Amr Najib Armanazi, Amrou Al-Armanazy

d.o.b. 7 February 1944.

Director General of the Syrian Scientific Studies and Research Centre (SSRC), responsible for providing support to the Syrian army for the acquisition of equipment used directly for the surveillance and repression of demonstrators.

Responsible for the violent repression of the civilian population; supports the regime.

23.7.2014

B.   Entities

 

Name

Identifying information

Reasons

Date of listing

54.

Oceans Petroleum Trading. a.k.a. Overseas Petroleum Tradeing (SAL), Overseas Petroleum Company.

Dunant Street, Snoubra Sector, Beirut, Lebanon.

Providing support to the Syrian regime and benefiting from the regime by organising covert shipments of oil to the Syrian regime.

23.7.2014

55.

Tri Oceans Trading

35b Saray El Maadi Tower, Corniche El Nile, Cairo, Egypt, Postal Code 11431 P.O. Box: 1313 Maadi

Providing support to the Syrian regime and benefiting from the regime by organising covert shipments of oil to the Syrian regime.

23.7.2014

56.

The Baniyas Refinery Company a.k.a. Banias, Banyas.

Banias Refinery Building, 26 Latkia Main Road, Tartous, P.O. Box 26, Syria.

Subsidiary of the General Corporation for Refining and Distribution of Petroleum Products (GCRDPP), a section of the Ministry of Petroleum and Mineral Resources. As such it provides financial support to the Syrian regime.

23.7.2014

57.

The Homs Refinery Company. a.k.a Hims, General Company for Homs Refinery.

General Company for Homs Refinery Building, 352 Tripoli Street, Homs, P.O. Box 352, Syria.

Subsidiary of the General Corporation for Refining and Distribution of Petroleum Products (GCRDPP), a section of the Ministry of Petroleum and Mineral Resources. As such is provides financial support to the Syrian regime.

23.7.2014

58.

Army Supply Bureau

PO Box 3361, Damascus

Involved in the procurement of military equipment in support of the regime, and therefore responsible for the violent repression of the civilian population in Syria. Branch of Syrian Ministry of Defence.

23.7.2014

59.

Industrial Establishment of Defence. a.k.a. Industrial Establishment of Defense (IED), Industrial Establishment for Defence, Defence Factories Establishment, Establissements Industriels de la Defense (EID), Establissement Industrial de la Defence (ETINDE), Coefficient Defense Foundation.

Al Thawraa Street, P.O. Box 2330 Damascas, or Al-Hameh, Damascas Countryside, P.O. Box 2230.

Involved in the procurement of military equipment for the regime, and therefore responsible for the violent repression of the civilian population in Syria. Branch of Syrian Ministry of Defence.

23.7.2014

60.

Higher Institute for Applied Sciences and Technology (HISAT)

P.O. Box 31983, Barzeh

Affiliated to and a subsidiary of the Syrian Scientific Studies and Research Centre (SSRC) which is already designated. It provides training and support to the SSRC and is therefore responsible for the violent repression of the civilian population.

23.7.2014

61.

National Standards & Calibration Laboratory (NSCL)

P.O. Box 4470 Damascus

Affiliated to and a subsidiary of the Syrian Scientific Studies and Research Centre (SSRC) which is already designated. It provides training and support to the SSRC and is therefore responsible for the violent repression of the civilian population.

23.7.2014

62.

El Jazireh a.k.a. Al Jazerra

Shaheen Building, 2nd floor, Sami el Solh, Beyrouth; sector of hydrocarbons

Owned or controlled by Ayman Jaber, therefore associated with a designated person.

23.7.2014


23.7.2014   

EN

Official Journal of the European Union

L 217/52


COMMISSION DECISION

of 19 June 2013

on State aid SA.28599 (C 23/10 (ex NN 36/10, ex CP 163/09)) implemented by the Kingdom of Spain for the deployment of digital terrestrial television in remote and less urbanised areas (outside Castilla-La Mancha)

(notified under document C(2013) 3204)

(Only the Spanish text is authentic)

(Text with EEA relevance)

(2014/489/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 108(2) thereof,

Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,

Having called on interested parties to submit their comments pursuant to the provisions cited above (1), and having regard to their comments,

Whereas:

1.   PROCEDURE

(1)

On 18 May 2009 the Commission received a complaint from SES Astra S.A. (hereinafter referred to as ‘Astra’). The subject of the complaint was an alleged state aid scheme that the Spanish authorities had adopted in relation to the switch-over from analogue television to digital television in remote and less urbanised areas of Spain. Astra argued that the scheme constituted non-notified and therefore unlawful aid, resulting in a distortion of competition between the satellite and terrestrial broadcasting platforms.

(2)

The contested scheme has its origin in Law 10/2005 of 14 June 2005 on Urgent Measures for the Promotion of Digital Terrestrial Television, Liberalization of Cable TV and Support of Pluralism (2). Further legislation adopted with respect to the digital terrestrial transition television process includes, among others, Royal Decree 944/2005 of July 29, 2005 approving the National Technical Plan for Digital Terrestrial Television (3) (hereinafter ‘NTP’); Royal Decree 945/2005 of 29 July 2005 approving the General Regulations for the delivery of the digital terrestrial television service; Order ITC 2476/2005 of 29 July 2005 approving the General Regulations and the regulations for the delivery of the digital terrestrial television service, and Royal Decree 920/2006 of 28 July 2005 approving the General Regulations for the delivery of the radio and cable television broadcasting service.

(3)

By letter dated 29 September 2010, the Commission informed the Kingdom of Spain that it had decided to initiate the formal investigation procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (TFEU) in respect of the aid in question for the whole territory of Spain with the exception of Castilla-La Mancha, for which a separate procedure was opened (4). The Commission decision to initiate the procedure (hereinafter ‘opening decision’) was published on 14 December 2010 in the Official Journal of the European Union  (5). The Commission invited the interested parties to submit their observations on the measure.

(4)

Following extension of the deadline, Spain replied by letter dated 30 November 2011 to the request for comments made in the opening decision. Apart from the central government, the authorities of Asturias, Aragon, the Basque country, Castilla y Leon, Castilla-La Mancha (6), Extremadura, Galicia, la Rioja, Madrid and Murcia submitted their comments and/or replies to questions asked in the opening decision.

(5)

The Commission also received comments from Radiodifusion Digital SL by letter dated 11 January 2011, from Grupo Antena 3 and UTECA (Union de Televisiones Comerciales Asociadas) by letters dated 28 January 2011, from Gestora La Sexta by letter dated 31 January 2011, from Abertis Telecom SA (hereinafter ‘Abertis’) by letter dated 2 February 2011, and from Astra and Telecinco by letters dated 4 February 2011. By letters dated 19 January 2011 and 9 February 2011 the Commission forwarded those observations to Spain, which was given the opportunity to react. Spain provided comments by letters dated 22 February 2011 and 14 March 2011.

(6)

In the course of the investigation, several meetings were held: between the Commission and Spain on 11 and 12 April 2011, between the Commission and Astra on 14 April 2011, between the Commission and Abertis on 5 May 2011 and between the Commission and UTECA on 5 July 2011. After several submissions of information by Spain on its own initiative, including observations from the Basque Country dated 24 February 2011, a formal request for information was addressed to Spain by letter dated 14 February 2012. Following extension of the deadline, Spain provided reply in a letter dated 16 April, which was followed up by letters dated 15, 19 and 25 June 2012. As part of the information was still missing, on 9 August 2012 the Commission addressed a request for additional information. After extension of the deadline, Spain provided replies in a letter dated 10 October 2012, followed by a letter dated 30 October 2012.

(7)

Furthermore, Abertis provided on its own initiative additional submissions on 22 June 2011 and 25 July 2012. Astra provided additional information in letters dated 21 July 2011, 16 May 2011, 8 September 2011 and 11 November 2011, all of which were sent to Spain for comments.

2.   DESCRIPTION OF THE MEASURE

2.1.   BACKGROUND

2.1.1.   Complainant

(8)

The complainant is a satellite platform operator. Set up in 1985 as Société Européenne des Satellites (SES), SES ASTRA (hereinafter ‘Astra’) was the first private satellite operator in Europe. Astra operates the ASTRA Satellite System, which offers a comprehensive portfolio of broadcasting and broadband solutions for customers in and outside Europe. It broadcasts radio and television programmes directly to millions of homes, and provides internet access and network services to public authorities, large companies, SMEs and individual households.

(9)

In its complaint, Astra alleges that the measures put in place by the Government and the Autonomous Communities in remote and less urbanised areas of Spain infringe the principle of technological neutrality, as they envisage terrestrial transmission as the only route towards digitisation. Astra refers in particular to the case of Cantabria. On the basis of a tender for extension of coverage of digital television for the whole territory of Cantabria launched in January 2008, the regional government of Cantabria had selected Astra to provide free-to-air channels via its platform. However, in November 2008 that contract was terminated by the regional government. According to Astra, the authorities only terminated the contract once they had been informed that the central government would finance the upgrade of the analogue terrestrial network. In fact, a letter from the Cantabrian authorities dated 7 November 2008 explained that the reason for the termination of the contract was that in the meantime the central government had taken decisions relating to the extension of coverage of digital television to the whole of Spain (7). Thus, the case of Cantabria would appear to demonstrate that, firstly, Astra could compete in that market and, secondly, that the decisions of the central government made this competition impossible.

2.1.2.   The sector

(10)

The case concerns the broadcasting sector, in which many players are active at the different levels of the broadcasting services products chain.

(11)

Broadcasters are the editors of television channels which purchase or produce in-house TV contents and bundle them in channels. The channels are then provided to the public through various platforms (e.g. satellite, DTT, cable, IPTV). In Spain, broadcasting services have been deemed to be a public service by the legislator and are therefore provided both by State-owned broadcasters (RTVE) and by private broadcasters holding concessions from the State (8). These so-called ‘free-to-air’ (FTA) channels are provided free of charge to the viewers. In order to ensure that the population can effectively benefit from this public service, the law attaches minimum coverage obligations both for transmissions entrusted to the public broadcaster and for the private operators who hold the concessions. Consequently, the public broadcasters have the obligation to cover at least 98 % of the Spanish population, while private broadcasters must cover at least 96 % of the population. In Spain, national broadcasters do not own a national broadcasting network. They therefore enter into agreements with platform operators to have their content transmitted and to fulfil their coverage obligations.

(12)

Hardware suppliers are manufacturers or installers of the necessary infrastructures and devices to build the various platforms.

(13)

Platform operators (or network operators) (9) are private or publicly controlled entities operating the necessary infrastructure (i.e. they transport and broadcast the signal) to deliver to the public the channels produced by the broadcasters. In the early days of the television industry, the only platform available was the analogue terrestrial platform. As the technology improved, more platforms have become available on the market, namely the satellite platform, the cable platform and, more recently, the IPTV (10), which exploits the broadband connection to transmit the TV signal.

(14)

In terrestrial broadcasting, the television signal is sent from a TV studio to a transmission centre (head-end), usually belonging to and operated by a network operator. Then the signal is transported and distributed from a transmission centre (head-end) to the broadcasting centres run by a network operator (e.g. a tower); sometimes the signal is transported via satellite. Lastly, the signal is broadcast from the broadcasting centres to homes. To digitise the analogue terrestrial network, it is necessary to replace the transmitters on the ground. However, as the digital signal has a lower range than the analogue and therefore the new technology requires a more capillary network, in some cases the extension of coverage also requires the building of new transmission centres.

(15)

In satellite broadcasting, the signal is sent to a transmission centre (head-end) and then transported to the satellite, which broadcasts it to homes. Alternatively, the signal could first be sent from a TV studio directly to the satellite, if the TV studio has the appropriate devices. The viewer has to be equipped with a satellite dish and a decoder. To increase satellite coverage in a region, the ground equipment needs to be installed in the customer's home. In terms of geographic coverage, the satellite platform could thus reach almost 100 % of the Spanish territory, whereas the terrestrial platform covers about 98 %.

2.1.3.   Background

(16)

The investigated measure must be examined in the context of the digitisation of broadcasting that the terrestrial, satellite and cable platforms have undergone or are currently undergoing. In comparison to analogue broadcasting, digitised broadcasting has the benefit of increased transmission capacity as a result of more efficient use of the radiofrequency spectrum. The switch to digital technology is especially significant for terrestrial broadcasting, where the frequency spectrum available is limited. Satellite transmission, on the other hand, has the advantage of operating in a completely different frequency band, where there is no scarcity of frequencies.

(17)

The switch-over from analogue to digital television releases a significant amount of high quality radio spectrum in what is known as ‘the digital dividend’, which will be free for the deployment of electronic communication services. This digital dividend, and especially the frequency of 790-862MHz (‘800 MHz band’), can boost the electronic communications industry, have a major impact on competitiveness and growth and provide a wide range of social and cultural benefits (11).

(18)

The ‘digital dividend’ could be reaped either by switching from terrestrial to a different platform or by moving from analogue to digital terrestrial broadcasting. Also, a mixed solution combining different platforms could be envisaged (12).

(19)

However, in the case of terrestrial broadcasting, the scarcity of frequencies remains an issue even after digitisation. This is illustrated by the fact that shortly after the termination of the switch-over from analogue to digital TV in April 2010, the Spanish government had to relocate broadcasters from the 800 MHz band to another frequency band. The relocation of DTT multiplexes assigned to broadcasters led to additional costs and additional state aid, which the Commission is currently examining in a formal investigation procedure (13).

(20)

With regard to TV broadcasting, terrestrial digital transmission could be replaced in the future by broadband technology, as next generation broadband networks (NGA) are likely to become the leading transmission technology. For the time being, however, in Spain the geographical coverage of such NGA networks in not universal.

(21)

In Spain there are today four broadcasting platforms: DTT — digital terrestrial technology (DBV-T), satellite (DBV-S), cable (DVB-C) and IPTV. DTT is the main platform for the free-to-air public and private Spanish channels (14). The main operator of the terrestrial network is Abertis, which also controls the satellite operator Hispasat. There are also a number of local telecommunications operators carrying DTT signals, which are usually interconnected with Abertis' national network. As for the pay TV channels, they are broadcast mainly via satellite, cable and IPTV. Astra and Hispasat are the main satellite operators

(22)

To address the process of digitisation, in order to switch from analogue to digital television, in 2005-2008 Spain adopted a series of regulatory measures that concerned the terrestrial network, as described in the section 2.2. They divided the Spanish territory into three distinct areas:

(i)

Area I — including the vast majority of the Spanish population, where the costs of switchover were borne by the broadcasters — 96 % of the territory for private broadcasters, and 98 % for public broadcasters. As broadcasters bore the costs, there was no need for state aid.

(ii)

Area II — less urbanised and remote areas covering 2.5 % of the population who in the past received public and private channels via analogue terrestrial television. However, as the switch to digital technology requires upgrading of the existing transmission centres and building of new ones, significant investments in the terrestrial network were necessary. The private broadcasters did not have sufficient commercial interest in providing the service in Area II and refused to bear the costs of digitisation. The Spanish authorities therefore established the state aid scheme under investigation, for upgrading the existing transmission centres and building new ones, in order to ensure that the residents, who until then had received private and public channels via analogue terrestrial TV, would continue to receive all the channels via DTT. This process was commonly referred to as ‘DTT coverage extension’ (i.e. extension of coverage of DTT above what was compulsory for the commercial broadcasters).

(iii)

Area III — where due to the topography it is not possible to provide TV service via the terrestrial platform and it is therefore provided by satellite. The transmission of free-to-air TV signals in Area III is provided by Hispasat. The fact that the TV service is provided through satellite entails costs for consumers, who have to acquire satellite dishes and set-top boxes.

2.2.   DESCRIPTION OF THE AID

(23)

The scheme being investigated is based on a complex system of legal provisions put in place by the Spanish central authorities as from 2005. On the basis of these provisions, state aid for the deployment of the DTT in Area II was granted in the years 2008-2009 by the Autonomous Communities and town councils, who channelled to the recipients the funds from the central budget and from their respective budgets. Moreover, since 2009 ongoing aid has been granted by the Autonomous Communities for maintenance and operation of the networks in Area II.

(24)

The regulation of the transition to digital television technology started when Law 10/2005 of 14 June 2005 was adopted (15). It mentions the need to promote a transition from analogue to digital terrestrial technology and required that the government take the appropriate measures to ensure this transition.

(25)

Following this mandate, with Royal Decree 944/2005 the Council of Ministers approved the National Technical Plan, which fixed the date of the analogue switch-off in Spain for 3 April 2010 (16).

(26)

As regards Area II and III, the Twelfth Additional Provision of the National Technical Plan already provided for the possibility that the local and regional authorities extend the coverage in the range between 96 % and 100 % of the population. In this regard, the Technical Plan explicitly refers to digital terrestrial television (DTT) and establishes six conditions under which the local authorities could carry out such extension. Condition (e) requires the local installation to be in conformity with the Technical Plan for digital terrestrial television.

(27)

Subsequently, on 7 September 2007, the Council of Ministers approved the National Plan for the Transition to Digital Terrestrial Television (hereinafter ‘Transition Plan’ (17), which implements the National Technical Plan. The Transition Plan divided the Spanish territory into ninety technical transition projects (18) and established a deadline for the switch-off of analogue broadcasting for each of these projects.

(28)

On 29 February 2008, the Ministry of Industry, Tourism and Trade (hereinafter ‘MITyC’) adopted a decision aimed at improving the telecommunications infrastructures and establishing the criteria and the distribution of the funding of the actions aimed at developing the Information Society under the Plan Avanza for 2008 (19). The budget approved by this decision amounted to EUR 558 million and was partly allocated to development of broadband, and partly to digitisation of television in remote and less urbanised areas of Spain falling outside the statutory obligations of the commercial broadcasters (20). Digitisation in those areas was commonly referred to as ‘extension of coverage’. It was subsequently implemented through a series of addenda to existing framework agreements (21) signed by MITyC and the Autonomous Communities between July and November 2008 (‘the Addenda to the 2006 Framework Agreements’, published in the Spanish Official Gazette separately for each Autonomous Community. In most cases, the wording of these agreements points to digital terrestrial technology as the only technology to be funded. As a result of the agreements, MITyC transferred funds to the Autonomous Communities, which undertook to cover the remaining costs of the operation from their budgets. These addenda also included the obligation of the local authorities to comply with the provisions of the Twelfth Additional Provision of the National Technical Plan.

(29)

In parallel, on 17 October 2008, the Council of Ministers agreed to allocate a further EUR 8,72 million to extend and complete DTT coverage within the transition projects to be completed during the first half of 2009, Phase I of the Transition Plan. The funding was granted following the signing of new framework agreements between MITyC and the Autonomous Communities in December 2008 (‘the 2008 Framework Agreements’). These agreements refer to the aforementioned financing of EUR 8,72 million and were entitled ‘Framework Collaboration Agreement between the Ministry of Industry, Tourism and Trade and the Autonomous Community of […] for the Development of the National Plan for the Transition to DTT.’ They lay down a list of activities that will be financed by the central and regional authorities in order to achieve coverage of digital television equal to the existing analogue coverage. These activities are related to the deployment of digital terrestrial television.

(30)

On 29 May 2009, the Council of Ministers approved the criteria for the distribution of EUR 52 million for the funding of DTT transition actions, aimed at financing the extension of coverage of the projects under Phases II and III of the Transition Plan (22). The agreement of the Council of Ministers established a direct link with the Transition Plan given that it stated that ‘in order to achieve the target set in the National Plan for Transition to DTT, namely a similar DTT coverage to that of the current terrestrial television coverage with analogue technology, the financial support of the public authorities is needed’ and then that ‘the implementation of this cooperation will be formalized within the framework set by the National Plan for the Transition to DTT’.

(31)

Lastly, between October and December 2009, addenda to the Framework Agreements (mentioned in paragraph 29) were published in the Spanish Official Gazette, including the funding for the extension of the coverage of Phases II and III of the Transition Plan. These addenda define what should be understood by ‘action to extend the coverage’, by making explicit reference only to terrestrial technology (although not formally excluding other technologies) (23).

(32)

Following the publication of the 2008 Framework agreements and above-mentioned addenda (24), the governments of the Autonomous Communities started implementing the extension. They either organised public tenders themselves or charged a public undertaking with carrying out of the tender. The subsidies were partly agreed upon with MITyC and therefore funded from the central budget or partly funded by the Autonomous Communities themselves. In certain cases the Autonomous Communities mandated the town councils to carry out the extension.

(33)

As a general pattern, two types of tenders were launched throughout the country. Firstly, there were tenders for the extension of coverage, which meant that the winning company was charged with the mission of providing (often building) an operative DTT network. The tasks to be carried out included the design and engineering of the network, transport of the signal, deployment of the network and supply of the necessary equipment. The other types of tenders were tenders for the supply of hardware, organised in the case of already existing networks. The winner of the tender was expected to upgrade it with the necessary equipment, i.e. supply, install and activate the equipment.

(34)

In most tenders the organising authorities refer explicitly, through the definition of the object of the tender (25) and/or implicitly, in the description of the technical specifications or the equipment to be financed (26), to terrestrial technology and DTT. In the few cases where satellite technology is expressly mentioned, these references are to satellite dishes for the reception of the satellite signal on terrestrial towers (27) or equipment to access digital television in Area III (28). Very few tenders for extension are technologically neutral and they do not exclude technologies other than DTT (29).

(35)

In total, in the years 2008-2009 almost EUR 163 million from the central budget (partly soft loans granted by MITyC to Autonomous Communities (30)), and EUR 60 million from the budgets of 16 Autonomous Communities investigated were invested in the extension to Area II. In addition, town councils funded the extension for around EUR 3,5 million.

(36)

As a second step after the extension of DTT to Area II, starting from the year 2009, some of the Autonomous Communities have been organising additional tenders, or have concluded relevant contracts without tenders, for the operation and maintenance of the equipment digitised and deployed during the extension. Unlike the aid for switch-over, the latter measures constitute ongoing aid. As they are for the operation and maintenance of the terrestrial network as installed in Area II, these contracts are not technologically neutral either. The total amount of funds granted through tenders for operation and maintenance (ongoing aid) in the years 2009-2011 was of at least EUR 32,7 million.

2.3.   GROUNDS FOR INITIATING THE PROCEDURE

(37)

In the decision to initiate the procedure, the Commission noted, firstly, that the measure described seemed to meet all the criteria of Article 107(1) and could, therefore, be regarded as state aid.

(38)

As there are different levels in the broadcasting market, three categories of state aid recipients were identified in the opening decision: (i) network operators, (ii) hardware suppliers participating in the tenders for supply of the equipment necessary for the extension and (iii) broadcasters of TV channels.

(39)

The Commission reached the preliminary conclusion that by financing the costs associated with the extension of the DTT platform, the scheme might have created a potential or actual distortion of competition between hardware providers active in different technologies and between the terrestrial and the satellite platforms.

(40)

The Commission, in its preliminary assessment, considered that the measure constituted state aid within the meaning of Article 107(1) TFEU and it did not see any grounds on which it could be compatible with the internal market, since no derogation seemed to be applicable.

(41)

For additional factual details please refer to the opening decision, which should be considered an integral part of this Decision.

3.   COMMENTS FROM SPAIN

3.1.   GENERAL REMARKS

(42)

In its defence to the opening decision, Spain and the Autonomous Communities have put forward numerous arguments (31). Broadly speaking they fall into two categories. First, the Spanish authorities argue that there is no state aid involved, because as the service is an SGEI the measure does not constitute aid, as it falls under the public service remit of public broadcasting. Moreover, it does not generate any advantage. Secondly, even if there was any state aid, it would be compatible under Article 106(2) or Article 107(3)(c) given that (a) the analogue network already existed and, from an efficiency perspective, a mere upgrade of the existing infrastructure would be less costly than switching to a new platform; (b) only the DTT technology would fulfil the necessary quality criteria and (c) the tenders were technologically neutral and other platform operators could have participated in the tendering. These arguments are summarised below.

3.2.   ABSENCE OF AID

3.2.1.   Service of General Economic Interest (SGEI)

(43)

Regarding the network operators, according to the Spanish authorities they provide a service of general economic interest within the meaning of the Altmark judgement (32). However, as the Autonomous Communities are responsible for actions to extend coverage, the applicability of the Altmark judgment must be examined on a case-by-case basis and it is up to the Autonomous Communities to prove that the Altmark conditions had been fulfilled. The most thorough arguments were those submitted by the Basque Country, which carried out digitisation through a public company, Itelazpi S.A. (hereinafter ‘Itelazpi’).

3.2.2.   No advantage

(44)

Concerning the hardware providers, Spain expressed the view that the fact that they won tenders for supply of equipment ruled out the existence of a selective advantage.

(45)

As regards the network operators, although Abertis is the main operator in Area I and it owns 29 % of the sites in Area II which were upgraded, it does not operate the network in Area II. Abertis would therefore not benefit from the measure as a network operator.

(46)

Network operation is, instead, carried out by some regional operators, by the Autonomous Communities or by local councils, which simply rent Abertis' premises and installations. The Autonomous Communities and local councils do not compete with other network operators, and therefore they do not obtain a competitive advantage. Moreover, they do not earn any revenue, as broadcasters do not pay for the provision of transmission services in Area II.

(47)

As for the DTT broadcasters, Spain argues that the impact of the investigated measures on broadcasters is almost non-existent. The measures did not increase broadcasters' audiences compared with when programmes were transmitted on analogue, as 2,5 % of the population targeted by the extended coverage already received analogue terrestrial television. As a result, the measures have no impact on these businesses' finances.

3.3.   COMPATIBILITY UNDER ARTICLE 106(2) AND 107(3)(c)

(48)

The Basque Country authorities submitted that the state aid granted to Itelazpi is compatible with the internal market by virtue of the provisions of article 106 TFEU. In this respect, they believe that the measure fulfils all the conditions of the Decision of 28 November 2005 on the application of Article 86(2) of the EC Treaty to state aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (hereinafter ‘86(2) Decision’) (33).

(49)

In the event of the Commission deciding that the measures taken by the Spanish authorities with regard the deployment of digital terrestrial television in Area II constitute state aid, and that they are not compatible with the internal market in application of article 106 TFEU, Spain claims that they would certainly be compatible with the internal market insofar as their purpose is to ensure that an objective which is of community interest is achieved (the conversion to digital broadcasting), so they would benefit from the exemption provided for in Article 107(3)(c) TFEU.

3.3.1.   Efficiency arguments

(50)

According to Spain, at national level the National Technical Plan and Transition Plan are not coverage extension plans since they refer only to the switchover in Area I. As such, the plans do not restrict the technology options available for the extension of coverage. The framework agreements, on the other hand, do not have the same regulatory status as the Plans and they are based on agreements between the central and regional authorities. Moreover, according to Spain, they would not exclude the use of satellite and other technologies. In any event, the extension of coverage and the choice of technology were done by the Autonomous Communities, usually through tendering procedure. One such tender — carried out in Castilla y Leon — was technologically neutral and the mere fact that such a tender was held proves that the central authorities did not impose the terrestrial technology on the Autonomous Communities.

(51)

Even if some tenders held elsewhere do refer to certain technical elements of the terrestrial technology, this is explained by the fact that terrestrial broadcasting requires certain elements that satellite does not, and their insertion was necessary in order not to exclude terrestrial solutions from the tenders.

(52)

The Spanish authorities also refer to a study into the feasibility of providing a universal DTT service through different technologies (DTT and satellite) carried out by the MITyC in July 2007, i.e. before proposing funding to extend DTT coverage. Although the authorities admit that the study was only an internal document not later taken on board, they nevertheless emphasise that it took into account the realistic costs of using either DTT or satellite transmission. The conclusions of the study were that it is not possible to establish in advance which technology is more efficient or cheaper to extend the coverage of television signal. Instead, a choice should be made on a region-by-region basis, preferably by means of studies carried out by the particular Autonomous Communities which analyse such factors as topography, territorial distribution of population and the state of the existing infrastructure.

3.3.2.   Qualitative requirements

(53)

Two qualitative arguments have been put forward. Firstly, to date DTT free-to-air channels have not been available via satellite broadcast in this area. Switching to the satellite platform would therefore mean that customers would have to pay for the service.

(54)

Secondly, apart from national channels, regional channels also need to be broadcast. DTT technology allows each geographical area to receive the channels for that area. On the basis of the regional and local channels, a total of 1 380 frequencies are allocated to terrestrial television throughout Spain, without the need for any technical restrictions and without extending broadcasting beyond the target area of each channel. According to Spain, this would be impossible for satellite networks as they do not provide the possibility of geographical delimitation and would therefore have to use a complex system of conditional access. This would further increase the costs of satellite broadcasting, and broadcasters would not be willing to give access to their channels without being sure that delimitation is possible.

3.3.3.   Technological neutrality

(55)

According to Spain, the bilateral agreements between the central and regional authorities did not impose a particular digitisation technology. They merely established transfers to the Autonomous Communities in line with the costs of digitisation, calculated on the basis of what was considered to be an efficient reference technology, i.e. DTT. In this respect it should be taken to consideration, according to Spain, that at the time of extension, terrestrial analogue television reached 98,5 % of Spanish homes.

(56)

Concerning the tender in Cantabria referred to in the opening decision, the Spanish authorities emphasise that the tender won by Astra concerned both Areas II and III, i.e. was aimed at universal provision of digital television in Cantabria. This would have a twofold impact on the assessment of the case.

(57)

Firstly, the Cantabrian project became a failure when, after the award of the contract to Astra, some of the main broadcasters informed Astra and the Cantabrian government that they would not allow their content to be broadcast via satellite. As a result, the objective of the plan was no longer readily achievable. Secondly, the main reason for termination of the contract was the decision of the central government to provide satellite coverage across the whole of Area III in Spain, and not the decision to provide funding from the central government to extend the coverage in Area II. Furthermore, the contract was terminated in November 2008 because at this point in time it was obvious that Astra would not be able to comply with its obligations. In particular, Astra did not undertake the necessary works on time and did not receive authorisations from free-to-air broadcasters to broadcast their channels.

(58)

In the context of this decision, the Cantabria project is relevant only to the extent that the satellite platform can be considered to be a valid alternative to the terrestrial platform. In this regard the above arguments are not pertinent. When opting for the satellite platform for Area III, the Spanish authorities adopted a national plan and enacted a special regulation requiring broadcasters to coordinate among themselves and to select one common satellite platform provider. A similar mechanism could also have been applied for Area II. The reasons given for the termination of the contract do not cast any doubt on the fact that satellite technology may be a valid platform for the transmission of TV signals in Area II. Furthermore, they have been refuted by a national Court in Spain.

3.3.4.   No distortion of competition and trade

(59)

Concerning competition between network operators, Spain expressed the view that terrestrial and satellite television are two completely different markets and that therefore the investigated measures did not distort competition on the affected markets. Spain maintains that the investigated measures have no effect on the intra-Union market as they are aimed at the residents of a restricted geographical area. Since they are local services, the measure is unlikely to affect trade between Member States.

3.4.   THE APPLICABILITY OF THE DE MINIMIS RULE

(60)

The Spanish authorities also expressed the view that the de minimis rule introduced by Commission Regulation (EC) No 1998/2006 (34) on de minimis aid certainly applies to a significant proportion of the funding. The hardware was purchased independently in each Autonomous Community or local council, and therefore the de minimis provisions should be analysed at that level. As in these cases the exact amount paid is known, as are the goods and services which were acquired, the aid was sufficiently transparent for the de minimis thresholds to apply.

3.5.   ONGOING STATE AID

(61)

Concerning the operation and maintenance of the transmission centres, the Spanish central authorities believe that they fall outside the work to extend coverage partially funded by the MITyC. The ministry has no jurisdiction to require councils or the Autonomous Communities to continue operation and maintenance beyond the period included in the tenders for extension of coverage. Therefore it cannot be entirely excluded that operation and maintenance of some centres might be interrupted because of local council budget cuts. The yearly costs of operation and maintenance were provisionally assessed by the central authorities as amounting to 10 % of the initial investment. During the course of the investigation, several Autonomous Communities provided more detailed data on the funds spent for operation and maintenance of the DTT network in Area II.

4.   COMMENTS FROM INTERESTED PARTIES

4.1.   ASTRA

4.1.1.   General remarks

(62)

Astra reiterates its earlier position that the measures leading to the switch-over to terrestrial digital television were a coordinated plan designed at the level of central government and implemented by the regional authorities. However, even assuming that the state aid for the extension of coverage was designed, organised and implemented at regional level, Astra believes that they would constitute unlawful and incompatible aid.

(63)

Concerning the tender in Cantabria, Astra insists that contrary to what is claimed by Spain, it was the obligation of the Cantabrian authorities to receive the authorisations from broadcasters to make their channels available to satellite platform. Moreover, even though the letters were sent by the broadcasters in March 2008, the Cantabrian authorities offered to other Autonomous Communities the alternative which they had chosen in July 2008.

4.1.2.   Presence of state aid

(64)

Concerning the advantage received by network operators and especially Abertis, Astra notes that as hardware supplier Abertis was awarded around […] (35) of the tenders for the digitization of the terrestrial sites located in the extension of coverage areas. Since Albertis is a platform operator, the digitization of the network favours its commercial offering to broadcasters since the DTT network will now reach almost 100 % of the population at no additional cost as opposed to the 96/98 % that would have been terrestrially digitized in the absence of the contested measure. Furthermore, Abertis would benefit from the fact that Astra as the main competing alternative platform operator, would be prevented from obtaining a foothold in the Spanish market by entering Area II.

(65)

Moreover, according to Astra, Abertis received other advantages as a result of the measures. Firstly, a significant number of Abertis' terrestrial sites have benefited from the funds provided by the Spanish Authorities in the scope of the investigated measures and are indeed operated by Abertis. This is in particular the case of sites that are located in the area where RTVE (public broadcaster) is obliged to provide its signal, but where there is no such obligation for the private broadcasters (around 2,5 % of the population). Secondly, Astra claims that Abertis benefited indirectly from the state aid in adjacent markets such as the transport market. Additionally, the complainant notes that the investigated measure leads to distortions of competition in Area III (36).

(66)

Astra believes that the satellite and terrestrial platforms belong to the same market. The distinction between pay-per-view and free-to-air television would not be relevant, as far as platform competition is concerned. Already today the terrestrial and satellite platforms compete for the transmission of pay-TV, as there are already at least two pay-per-view channels offering their signal through the DTT platform and one of them is only available on DTT. Moreover, according to Astra, all currently authorized broadcasters have already requested a license from the Government to broadcast their content in the pay modality.

(67)

Astra considers that the investigated measures were not proportional. It indicates that the switch to DTT required significant adaptations in apartment buildings and investment in cabling. Moreover, to support its argument that the extension of coverage via satellite would not have been more expensive than via the terrestrial platform, Astra referred to its internal cost study submitted together with the complaint, carried out in November 2008. The study compared the costs of extension of coverage using both technologies — terrestrial and satellite. The assumptions of the study differ from the ones carried out by Spain and Abertis in various respects, among others concerning the costs of satellite dishes and the need to purchase external set-top boxes for the reception of digital terrestrial TV. The findings of the study lead to the conclusion that the extension of coverage via satellite was not necessarily more expensive than using terrestrial technology. Astra also submitted additional documents aimed to show that the installation and operation costs of both technologies do not differ significantly.

(68)

Astra also claims that ensuring the conditionality of access to satellite broadcasts is not an obstacle to broadcasting free-to-air channels. Conditional access systems are present all over the world and they are not difficult to use (37). Moreover, the solution proposed in Cantabria for conditional access was accepted by the Cantabrian authorities, who could decide which users to activate in order to receive the service. Therefore the territorial limitation of the service was controlled by the Cantabrian government. There was no need for a specific adaptation to this effect.

(69)

Concerning the appropriateness of the measure, Astra claims that thanks to economies of scale, the larger the geographical coverage, the more economically attractive satellite technology becomes. By splitting the measure in Area II into more than 600 local and regional tenders, satellite technology had already been put at a significant competitive disadvantage. However, even if the Spanish government had not been able to impose or suggest the need to take into account cross-regional synergies as a condition for the granting of the funds, the regions could have taken this possibility into account in order to ensure that they were choosing the most cost-efficient solution for their taxpayers. In fact, Astra argues that they tried to do so before the Spanish central government's intervention in favour of the terrestrial technology. Indeed, after having selected Astra in the public tender, the Cantabrian authorities initially tried to convince other regions to also select the satellite platform, as this would have reduced further their own costs.

4.1.3.   Ongoing state aid

(70)

Astra repeats that part of the contested measures amount to ongoing state aid, as the autonomous community governments will finance the costs of operation and maintenance of the local networks in Area II on an ongoing basis. Concerning the annual operation and maintenance costs for the satellite solution, Astra estimates that they would amount to EUR 100,000 per channel per year, although reductions could have been achieved had more than one region chosen the satellite solution.

4.2.   COMMENTS FROM ABERTIS

(71)

Abertis is a telecommunications infrastructure operator and network equipment supplier. It owns, among other companies, Retevisión S.A. and TradiaS.A., which manage and operate telecommunication networks and infrastructures.

4.2.1.   Presence of state aid

(72)

First of all, Abertis notes that the investigated measures do not constitute state aid within the meaning of Article 107(1) TFEU. The regional authorities simply acquired goods and services on market terms by way of open tenders and they remain the owners of the equipment installed in the transmission centres in Area II. For this reason, neither any funds nor any digital equipment acquired with those funds were ever transferred to any external recipient.

(73)

Abertis considers, in addition, that the contested measures did not confer any appreciable economic advantage on the network operators. Abertis claims that it does not operate any of the local networks located in Area II (even where it owns the related transmission centres) and that therefore it cannot obtain any direct advantage. Secondly, in Area II Abertis only acted as a hardware provider. Thirdly, even in cases where the digital equipment used to upgrade a transmission centre was sold by Abertis and this equipment was later installed in a transmission centre belonging to Abertis, there was no benefit. This is because Abertis simply rents those transmission centres to the local network operators on market terms and the amount of the rent paid to Abertis was not affected by the digitisation process. Fourthly, Abertis insists that the incremental increase of 1-2 % in the coverage of a DTT network does not translate into any economic benefit for Abertis as a platform operator in Area I. Finally, the digitisation of Area II does not affect the price that Abertis is able to charge to broadcasters for its transmission services, especially given that Abertis' wholesale pricing is regulated by the Comision del Mercado de Telecomunicaciones, the Spanish regulatory authority (hereinafter ‘CMT’).

(74)

Concerning the local network operators in Area II (town councils), Abertis considers that there cannot be any economic advantage as they do not qualify as undertakings within the meaning of Article 107(1) TFEU and in any event perform a public service.

(75)

Abertis also expressed the view that the investigated measure did not entail any economic advantage for the broadcasters. The digital switchover in Area II did not increase the number of television viewers when compared to the number of viewers who had access to analogue television before the process of transition to digital broadcasting started in 2005.

(76)

Moreover, Abertis considers that the contested measures did not have any appreciable effect on competition between the network operators. The fact that neither Astra nor any other private operator showed any interest in providing transmission services in Area II for the last 20 years, confirms that there was no market and that state intervention was required to facilitate the provision of services. In particular, there is no distortion of competition between satellite and DTT, as they are two separate markets. Moreover, the digitisation of the terrestrial networks in Area II did not change in any way the competitive structure of the relevant markets but simply represented a necessary technical upgrade of the existing analogue platform.

(77)

Abertis claims that the broadcasting services provided over the networks in Area II are limited to certain isolated areas and therefore do not have an effect on trade between Member States.

(78)

In the event the Commission considers that the relevant public authorities or their affiliates are undertakings within the meaning of Article 107(1) TFEU, Abertis considers that the funds to cover the digital switchover in Area II were compensation for the provision of a public service. In this respect Abertis believes that the contested measures respect the conditions set out in the Altmarkcase-law and that there is no state aid involved.

4.2.2.   Existing aid

(79)

According to Abertis the deployment of broadcasting networks in Area II began in a non-liberalised broadcasting sector in 1982. At that time, the Spanish State held a legal monopoly in the market for terrestrial broadcasting. Public funds are now used to finance the installation, maintenance and operation of the local networks in Area II put in place prior to the liberalisation of this sector. Therefore, the investigated measure is ongoing, existing aid.

4.2.3.   Compatibility

(80)

Abertis argues that any potential state aid would be compatible by virtue of the provisions of article 106 TFEU, as it fulfils all the conditions of the 86(2) Decision.

(81)

Should this not be the case, any potential aid would in any event be compatible with Article 107(3)(c) TFEU. Firstly, the aim of the measures adopted by the Spanish authorities is to accelerate the digital switchover process in Spain, which has been recognised in the Commission's state aid decision-making practice as an objective of common interest. Secondly, the aid was an appropriate instrument, as DTT is a more suitable technology to provide the coverage extension (38). Apart from economic reasons, Abertis also notes that broadcasters are reluctant to use satellite platforms, due to the constraints faced by broadcasters when acquiring content rights for their free-to-air programmes. In most cases they only acquire the right to broadcast the contents over a specific platform, namely DTT, as this technology allows targeted transmission and geographical limitations. Moreover, the measures are proportionate since they cover only the costs strictly necessary for the switchover from analogue to digital television services in Area II. The only costs supported by the contested measures are those related to the digitisation of the transmission centres in Area II, which is carried out through the acquisition and installation of digital equipment.

(82)

Regarding the technological neutrality of the measure, Abertis notes that terrestrial technology was not the only solution taken into consideration by the Spanish government. Moreover, in Area III the satellite platform was finally considered the most appropriate technological choice to provide digital television services. More importantly, Abertis claims that DTT is deemed to be the most appropriate and least costly platform to provide digital television services in Area II in order to achieve the same coverage that existed before the analogue switch-off, as is borne out by the submitted cost studies (39).

4.3.   COMMENTS FROM RADIODIFUSIÓN

(83)

Radiodifusión is a relatively new provider in the market of audiovisual signal transmission services registered with CMT's Registry of Operators in November 2005.

(84)

Radiodifusión agrees in general with the opening decision and supports the Commission in its views, while providing some additional observations listed below. It agrees that the state aid does not meet Altmark requirements and entails a substantial transfer of State resources.

(85)

The investigated state aid scheme benefited network operators already operating in rural areas. In fact, in the market in question, which is characterized by high entry barriers, benefiting an already dominant operator, the measure has led to replicate the same historical monopoly patterns. In particular, Abertis has been able to reinforce its monopoly position and to actually use public funding to develop a new and denser network which will enable it to compete in new markets.

(86)

Radiodifusión claims that the investigated state aid is not proportional. To be in line with the proportionality requirement, the aid should be limited to what is necessary, i.e. should apply only to remote rural areas, and it should benefit all operators equally by requiring effective access obligations.

4.4.   COMMENTS FROM BROADCASTERS

(87)

The broadcasters submit that the measure cannot be considered as state aid because it has not conferred a financial advantage on any company, in particular broadcasters. The measures have not increased broadcasters' audiences compared with when they were broadcasting in analogue. Moreover, the residents in the extended coverage areas, i.e. rural, remote and sparsely populated areas, have no impact on the advertising market and are not part of the broadcasters' target audience. In these circumstances the private operators did not increase advertising fees as a result of the extension.

(88)

The broadcasters also expressed the view that they did not have an interest in migrating to a satellite platform, where their programmes would face competition from hundreds other channels. The terrestrial platform has the advantage of limited capacity, which for commercial free-to-air broadcasters means less competition. Moreover, they underlined the fact that they usually purchase contents only for the terrestrial platform. This is because terrestrial broadcasting guarantees the geographical delimitation of broadcasts, which is not the case for satellite.

(89)

Broadcasters also insisted that after assignment of the Cantabrian tender to Astra, they informed the Cantabrian authorities that they would oppose satellite broadcasting, as they had acquired rights to broadcast contents only via the terrestrial platform.

5.   LEGAL ASSESSMENT

5.1.   LEGAL BASIS OF THE AID

(90)

As described in detail above in section 2.2, paragraphs 23 to 31, the legal framework for the digital switch-over in Spain is a complex net of various acts issued both by the central government and the regional and local authorities over a period of four years. The 2005 National Technical Plan and the 2007 Transition Plan mainly regulate the transition to DTT in Area I but they also set the basis for further extension measures in Area II. These extension measures were implemented by the regional authorities, after conclusion of several framework agreements with the central government (the 2008 Framework Agreements) and addenda in 2008 to the previous 2006 Framework Agreements and in 2009 to the 2008 Framework Agreements.

(91)

As a result of the conclusion of these agreements and addenda, the regional and/or local authorities carried out a wide array of measures aiming at extending the coverage of DTT in Area II, primarily through public tenders, as described above at paragraphs 32 to 35. The Commission therefore considers that the various acts adopted at central level and the agreements concluded and amended between the MITyC and the Autonomous Communities constitute the basis of the aid scheme for the extension of coverage in Area II. These acts and agreements led the Autonomous Communities to take measures which were not technologically neutral (40). While the National Technical Plan regulates the switch-over to DTT in Area I, it also gives a mandate to local authorities to establish, in cooperation with the Autonomous Communities, additional transmission centres necessary to ensure reception of the DTT in Area II. Thus, at that point in time the central government already envisaged the extension of DTT coverage. The mandate contained in the main legal act regulating the switch-over to digital television refers only to the terrestrial platform. In practice, the Autonomous Communities have therefore applied the central government's guidelines on the extension of DTT (41).

(92)

To corroborate this finding, the Commission has also investigated a sample of the individual tenders carried out by the Autonomous Communities themselves. This verification confirms the above conclusion, as the vast majority of the examined tenders have not been technologically neutral.

(93)

The moment when the state aid for the deployment of the DTT in Area II was effectively disbursed was marked by the transfer of funds from the central and regional authorities to the beneficiaries. This happened over a period of time which varied from one Autonomous Community to another. From the information received, the earliest tenders took place in July 2008 (42). The Annex provides a calculation of aid amounts by region.

As for the ongoing aid for operation and maintenance of the networks, this was not decided at central level. Rather, some of the Autonomous Communities (see ‘Recurrent costs’ in the Annex to the Decision) launched tenders for the operation and maintenance of the existing terrestrial digital networks, which were published in their respective official journals (43).

5.2.   STATE AID ASSESSMENT PURSUANT TO ARTICLE 107(1) TFEU

5.2.1.   Presence of aid within the meaning of Article 107(1) TFEU

(94)

The measure in question, including the ongoing aid for operation and maintenance as described in paragraph 36, can be characterised as state aid within the meaning of Article 107(1) TFEU, which lays down the conditions for the presence of state aid. Firstly, there must be an intervention by the State or through state resources. Secondly, it must confer a selective economic advantage on the recipient. Thirdly, it must distort or threaten to distort competition. Fourthly, the intervention must be liable to affect trade between Member States.

5.2.1.1.   State resources

(95)

The measure in question originates from the system of the legal acts described above, adopted at both central and regional and local level, as well as from agreements concluded between different levels of the Spanish administration. Moreover, Spain did not contest the finding of the opening decision that the measure was financed from the budgetary resources. It insisted, however, that it was financed both from the central and from the regional and municipal budgets. It also expressed the view that the measure in question was actually a mere transfer of funds between different administrations. As such, the fact that the funds originate mainly from the central budget and partly from the regional and local budgets was not disputed by Spain. Furthermore, the measure was not a mere transfer of funds between administrations, as ultimately the funds were used for the deployment of the DTT network by entities carrying out an economic activity (as explained in section 5.2.1.2.).

(96)

In these circumstances it is concluded that the measure under investigation was funded directly from the State budget and from the budgets of particular autonomous communities and local corporations. The ongoing aid, as described in paragraph 36, was not funded from the central State budget, but directly from the budget of the Autonomous Communities. It is therefore imputable to the State and involves the use of state resources.

5.2.1.2.   Economic advantage to entities carrying out an economic activity

(97)

The measure in question entails a transfer of State resources to certain undertakings. Although the concept of an undertaking is not defined by the Treaty, it refers to any natural or legal person, regardless of its legal status and its financing, who carries out an economic activity. In Commission practice, as confirmed by the Courts, operation of television transmission networks is considered to be an economic activity (44), similarly to other cases involving management of infrastructure by the regional authorities (45). In the case at hand, most of the public undertakings or town councils are registered in the register of the CMT as network operators. This suggests that they provide certain services, which according to settled case practice constitutes an economic activity. A market exists if other operators would be willing or able to provide the service in question, which is the case. For instance Astra held several meetings with the Autonomous Communities before the implementation of the extension of the coverage in Area II to present them its offer. In addition, in March 2008 Astra participated in and won a technologically neutral tender for providing digital TV in Area II and Area III published in Cantabria. The fact that the public undertakings and town councils do not receive remuneration for the services provided does not preclude the activities in question from being considered to be an economic activity (46).

(98)

The Commission does not agree with Spain's argument that operation of the terrestrial network by the Autonomous Communities, public undertakings and town councils falls within the exercise of official powers as a public authority and is therefore outside the scope of Article 107 TFEU. It has been recognised that the activities linked to the exercise of State prerogatives by the State itself or by authorities functioning within the limits of their public authority do not constitute economic activities for the purposes of competition rules (47). Such activities are those that form part of the essential functions of the State or are connected with those functions by their nature, their aim and the rules to which they are subject. The Courts' case law has provided several examples of activities that fall within this category, thus establishing a dividing line between pure State activities and the commercial activities a State entity may engage in. This list includes activities related to the army or the police, the maintenance and improvement of air navigation safety; air traffic control (48); the anti-pollution surveillance which is a task in the public interest that forms part of the essential functions of the State as regards the protection of the environment in maritime areas (49) and standardisation activities as well as related research and development activities (50).

(99)

In this light, the Commission is of the opinion that in the present case the operation of the terrestrial broadcasting network does not fall within the State's obligations or prerogatives nor is it a typical activity that could only be performed by the State. The services under consideration are not typically those of a public authority and are in themselves economic in nature, which is evidenced by the fact that several undertakings are active on the market in the Area I. Second, a private undertaking, not dependent on any public authorities — namely Astra (as evidenced by its presence as a bidder in the 2008 tender in Cantabria) — was interested in providing this service in Area II. Third, the deployment of the network in Area II only concerns the transmission of national and regional private channels (51). As a result, it is concluded that the operation of the terrestrial network by the Autonomous Communities, public undertakings and town councils does not fall within the exercise of official powers as a public authority.

Direct beneficiaries of the aid

(100)

The operators of the DTT platform are the direct beneficiaries of the contested measures, as they received the funds for the upgrading and extension of their network in Area II. Similarly, they benefit from the ongoing aid for the operation and maintenance of these networks. The Autonomous Communities chose different approaches to implement the coverage extension and therefore different types of direct beneficiaries have been identified.

(101)

Firstly, some of the Autonomous Communities (52) charged a public undertaking, which sometimes operates as a telecommunications company, with the task of extending coverage. These undertakings either organised tenders for extension of coverage and left this task to the winner of the tender, or carried out the extension themselves, after acquiring the necessary hardware.

(102)

These public undertakings are now in a position to operate the DTT network in Area II due to the public subsidy. They can also use the new infrastructure to provide other services, e.g. WiMax (wireless broadband standards which can provide fix or mobile broadband), digital radio, mobile television (DVB-H), or co-location services to Telefonica's basic broadband network in rural areas and to mobile operators. Due to these economies of scope, the DTT network operators have opportunities to raise income from the publicly financed infrastructure.

(103)

The quantifiable advantage to the public undertakings is the amount of the funds received for the extension of coverage.

(104)

Secondly, some of the Autonomous Communities (53) launched themselves tenders at the regional level for the extension of the DTT. Spain claims that the vast majority of tenders were for provision of hardware and equipment and the companies who won such tenders acted as hardware suppliers. This would also be the case of Abertis, Tradia and Retevision. The findings of the investigation point however to the conclusion that a significant number of tenders were for the extension of coverage, and not only for the supply of equipment (54). Therefore, contrary to what is claimed by Spain, the Commission considers that Abertis and other companies participated in such tenders in their quality of network operators (55). In this case, the winners of such tenders did receive a competitive advantage over other network operators who were not even able to participate in the selection process. Their advantage is the sum of the funds received for extension as a result of a technologically non-neutral tender.

(105)

Thirdly, some of the Autonomous Communities (56) granted funds to the town councils for the extension of the DTT coverage. Spain argues that these were merely transfers of funds between different levels of administration and that, by extending networks owned by the town councils, the councils simply carried out their administrative obligations towards the inhabitants. However, Spain recognises that local corporations acted as network operators, that many of them are registered on the CMT's list of network operators and that they effectively carried out the extension of the network, in some cases via tendering procedure. The Commission therefore considers that, where the local corporations act as local DTT network operator, they are direct beneficiaries of the aid. Their advantage is the amount received from the regional and central authorities for the extension of coverage. This also applies if the extension is partially financed by own resources of a local corporation which constitutes aid to the undertaking or to the activity.

(106)

Overall, Abertis and Retevision were the main beneficiaries of the tenders. In total, from the information received, it appears that they received approximately […] of the total amount of the funds aimed at extension of coverage: at least EUR […] million as a result of tenders for the extension of network coverage.

(107)

In addition, some of the Autonomous Communities have granted state aid for the operation and maintenance of the networks. These tasks are performed either by the public undertakings, by the town councils or are tendered out, for example to the owners of the transmission centres. Spanish central authorities submitted that they did not impose the obligation to operate and maintain the digitised sites and that it was up to the Autonomous Communities to decide on this matter. During the course of the investigation various Autonomous Communities submitted figures indicating that they indeed financed the operation and maintenance of the transmission centres in Area II, especially starting from 2009, after the expiry of the initial two-year period of operation and maintenance included in the contracts with the successful tenderers. This is considered to be ongoing aid and the undertakings charged with the operation and maintenance of the digitised terrestrial network in Area II are the direct beneficiaries.

(108)

Finally, in more general terms, Abertis also benefits from the exclusion of another platform operator from entering the market of transmitting free to air TV signals in Spain (57).

Indirect beneficiaries of the aid

(109)

Network operators. Network operators who participated in the tenders for extension of coverage organised by the public undertakings under the first-case scenario described in the paragraph (101) are indirect beneficiaries of the aid. The public undertakings did not carry out the extension themselves and did not keep the funds aimed at extension of coverage; rather, they channelled them to the network operators by means of tenders for extension. These tenders for extension were targeted only at terrestrial network operators. The latter therefore benefited from the exclusion of satellite operators. Furthermore, due to the small number of operators in the market, the terrestrial network operators faced only a limited competitive constraint. As pointed out for direct beneficiaries above, they also benefit if they use the new infrastructure also for the provision of other services (as WiMax, digital radio, mobile TV etc.). The advantage received by these network operators amounts to the sum of the funds received following a tender for extension (58).

(110)

Hardware suppliers.Unlike network operators, hardware suppliers are not considered to be indirect beneficiaries as they did not receive a selective advantage. As in the case of digital decoders in Italy (59), it has not been possible to draw a distinction between different categories of producers of various types of digital infrastructure because producers should be able to produce any type of equipment. The companies winning the tenders are not different from the group of undertakings who would have participated in tenders if the scheme had been technologically neutral with regard to platform operators (60). In Spain, the companies, which integrate, install and supply the hardware necessary for DTT extension usually also offer other services. Such equipment manufacturers, as well as telecommunications operators, may also offer terrestrial or satellite solutions or a combination of the two (61).

(111)

The measure in question does not seek, through its object or general structure, to create an advantage for manufacturers. Indeed, any public policy in favour of digitisation (even the most technologically neutral) would favour producers of digital equipment. In the case of equipment manufacturers, the fact that they benefited from an increase in sales due to the measure can therefore be considered to be a mechanical side effect. As a matter of principle, any state aid has a trickle-down effect on suppliers to the state aid recipient. This, however, does not necessarily create a selective advantage for such suppliers. Hardware suppliers were not targeted by the aid and therefore did not benefit from a targeted indirect effect. Furthermore, as they were selected on the basis of transparent tender procedures, which were open to all equipment suppliers, including those from other Member States, they cannot be expected to have benefitted from abnormal profits.

(112)

Broadcasters.Spain has sufficiently demonstrated that the terrestrial broadcasters did not receive any advantage following the extension of the coverage. In contrast to Area I, the broadcasters refused to pay for digitisation in Area II as this would not generate any additional revenue for them. In fact, in the light of the limited population at stake, which does not seem to be the commercial target of the advertisers, following the extension to Area II, broadcasters could not significantly raise advertising fees. Therefore, the terrestrial broadcasters are not indirect beneficiaries of the measure under investigation.

5.2.1.3.   Selectivity

(113)

The advantage provided by the measure, including the ongoing aid, to the network operators is selective, as it only applies to the broadcasting sector. Within that sector it only concerns the undertakings active in the terrestrial platform market. The legislative framework sets technical specifications of eligibility that only terrestrial technology is able to fulfil. Moreover, only undertakings in the terrestrial platform market received the ongoing aid for maintenance and operation of the network. Therefore network operators who operate other platforms, such as satellite, cable and IPTV, are excluded from the measure.

5.2.2.   Public service remit

(114)

Due to the administrative organisation of the country and the division of competences between the central and regional authorities, according to Spain it is up to the regions to claim the absence of state aid under the Altmark case law. As its best and only example, the Spanish authorities put forward the case of the Basque country. No other Autonomous Community provided reasoning supporting the claim that the operation of the terrestrial network is a public service.

(115)

In the Basque Country, a public company of the Basque Government — Itelazpi S.A. (‘Itelazpi’) provides transport services and broadcasting coverage to radio and television. For this aim, it operates around 200 broadcasting centres, most of which belong to the Basque government. In order to extend the coverage, Itelazpi was charged with the task of organising ten tenders at regional level for the supply of equipment necessary for digitising the terrestrial infrastructure.

(116)

According to the Basque Country, Member States have significant discretion to define an SGEI. The definition can be questioned by the Commission only in the case of manifest error; this margin of discretion is even wider in the case of public service broadcasting (62). On this basis, the Basque Country has argued that the operation of broadcasting networks can be considered to be an SGEI. It would not be on a stand-alone basis but rather as an ‘essential service’ inherent to the public broadcasting service stemming from various provisions of Spanish law and case law (63).

(117)

According to the Basque authorities, the funding granted to Itelazpi was in fact compensation for the provision of the services of general economic interest fulfilling the Altmarkcriteria.

(118)

In its Altmark judgment, the Court stated that public service compensation does not constitute an economic advantage in the meaning of Article 107(1) of the EC Treaty if all of the following four conditions are met: 1. the recipient undertaking must actually have a public service mandate and the tasks and related obligations must be clearly defined; 2. the parameters of the compensation must be established in advance in an objective and transparent manner; 3. the compensation must not exceed the costs incurred in discharging the public service mandate; 4. in order to ensure the least cost to the community, the company which is to discharge public service obligations is chosen either through public procurement, or the costs of providing the services of general economic interest are determined on the basis of the costs of a typical, well-run undertaking.

First Altmark condition: Clear definition and assignment of public service obligations

(119)

Spanish law does not declare the operation of a terrestrial network to be a public service. The 1998 Telecommunications Law (64) states that telecommunications services, including operation of networks supporting radio and television, are services of general economic interest but they do not have the status of public services, which are reserved only for a limited number of telecommunications services (65). The Telecommunications Law currently in force (66) maintains the same qualification. The transmission services for the broadcasting of television, i.e. transport of signals through the telecommunications networks, are considered to be telecommunication services and as such are services of general interest but not public service (67).

(120)

In any event, the provisions of the Telecommunications Law are technology neutral. Article 1 of the Law defines telecommunications as exploitation of networks and the provision of services of electronic communications and associated facilities. Telecommunications is the transmission of signals through any telecom network, and not through the terrestrial network in particular (68). Moreover, Article 3 of the Law specifies as one of its objectives to encourage, to the extent possible, technological neutrality in regulation.

(121)

Although the law in force and applicable at the time of transfer of funds to Itelazpi defined public broadcasting as a public service, according to the Commission it is not possible to extend this definition to the operation of a particular supporting platform. Moreover, where several transmission platforms exist, one particular platform cannot be considered to be ‘essential’ for the transmission of broadcasting signals. It would therefore have constituted a manifest error, if Spanish legislation had declared the use of a particular platform for the transmission of broadcasting signals to be a public service.

(122)

It is therefore concluded that under Spanish law the operation of terrestrial networks does not have the status of a public service.

(123)

The Basque authorities argue that the assignment of the provision of this service of general economic interest to Itelazpi is explicitly contained in the Conventions concluded between the Basque Government, EUDEL (Association of Basque Town Councils) and the three Basque Regional Councils.

(124)

In the Conventions the Basque administration recognises that values such as universal access to information and plurality of information require the universalization of free-to-air television and undertakes to safeguard these values by extending the coverage of the state multiplexes (69). However, no provision of the Conventions actually suggests that the operation of terrestrial network is considered to be a public service. Therefore, the Commission is of the view that the wording of the Conventions is not sufficient to clearly set out the scope of the mission of the public service, and it cannot be argued on that basis that transmission via the terrestrial network is a public service.

(125)

As a result, it has not been established that the first Altmark condition has been satisfied.

(126)

The criteria laid down in the Altmark judgement are cumulative, i.e. they all have to be fulfilled in order for the measure not to be considered state aid. In the absence of satisfaction of the first criterion, the financing granted to Itelazpi by the Basque Country authorities does not therefore qualify as compensation for the provision of a service of general economic interest.

Fourth Altmark condition: ensure the least costs to the community

(127)

In the absence of a tender, the fourth Altmark condition requires that the level of necessary compensation must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with means of transport so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations. For this purpose, the relevant revenues and a reasonable profit for discharging the obligations should be taken into account.

(128)

As there was no tender, the Basque authorities argue that the criterion is fulfilled due to the fact that Itelazpi itself is a well-run and suitably equipped company to perform the requested activities. On the basis of a cost comparison, the Basque authorities conclude that satellite provision would have been more expensive than upgrading Itelazpi's terrestrial network (70). However, to fulfil the fourth Altmark criterion, a comparison with satellite technology is not sufficient to establish that Itelazpi is efficient. There could also have been other terrestrial operators which could have performed this service at lower cost.

In the light of the above it is concluded that in the case of the Basque Country too, the fourth Altmark condition has not been fulfilled. Given that these conditions are cumulative, it cannot be considered that the financing granted to Itelazpi by the Basque Country authorities does not constitute state aid because it fulfils the conditions for being deemed compensation for the provision of a service of general economic interest.

5.2.2.1.   Distortion of competition

(129)

Spain and Abertis claim that DTT and satellite technology are two different markets. DTT is the main platform for free-to-air terrestrial television where the number of operators in the national market is determined by the number of licences granted by the Spanish government. Funding for free-to-air terrestrial television channels comes from advertising. As for satellite television, a large number of channels are available on the only pay-television platform in Spain, for which Astra is the network operator. These channels are funded by subscriptions, generally for a package of channels. The Spanish authorities also point out that in Spain the cost of satellite distribution for broadcasters is much higher than the cost of terrestrial broadcasting and therefore the free-to-air broadcasters, including regional and local broadcasters, are not interested in switching to this platform.

(130)

For several reasons it is concluded that the terrestrial and satellite platforms operate in the same market.

(131)

Firstly, in 2008 Astra competed for the extension of coverage of digital television in Cantabria and won the tender. In 2008 Astra held a series of meetings with the Autonomous Communities to present its offer to broadcast digital television channels, which had hitherto been broadcasted via terrestrial platform. Even though the contract with Cantabria was later terminated by the authorities, the interest of the satellite operator in providing services in competition with the terrestrial platform suggests that there is a possibility for satellite operators to provide similar services.

(132)

Secondly, the satellite operator Hispasat (a subsidiary of Abertis) provides services in some parts of Area II (71) and the satellite platform is exclusively used in Area III. Other Member States also use satellite services to cover more remote areas of their countries with the free-to-air channels (72).

(133)

Thirdly, several public and private channels distributed via the terrestrial platform are also broadcasted via satellite platforms, including Astra itself (73).

(134)

Fourthly, concerning the regional channels, some of them are available or were available in the recent past via the satellite platform. This contradicts the statement that the regional broadcasters are not interested in satellite.

(135)

Fifthly, the Commission also notes Astra's argument concerning the capacity of satellite to deliver 1 380 channels and delimitate them geographically. Astra claims that there are no limitations for satellite to broadcast such a number of channels. Moreover, the figure of 1 380 regional channels seems to be inflated. While this is the maximum number of frequencies available throughout Spain for national, regional and local channels, the number of licences granted was in fact much lower (see footnote 13). In addition, not all the broadcasters that received a license actually broadcast on the frequencies assigned.

(136)

Sixthly, some broadcasters have declared a preference for terrestrial transmission because they have acquired rights to broadcast content only for the terrestrial platform. This, however, does not mean that there are different markets for terrestrial and satellite transmission. As they have acquired content rights for the terrestrial platform, if necessary, broadcasters could do the same for the satellite. Furthermore, if a satellite platform is selected on the basis of a public tender, as in the case of Area III, a ‘must carry obligation’ could be imposed on the broadcasters.

(137)

Finally, according to data from May 2010 (74), the coverage of DTT in Spain reaches 98,85 % of the population while only 93,5 % of the households watch TV via the terrestrial platform. Thus, 5 % of households have access to DTT but choose not to use it, as most of them subscribe to pay-TV via satellite.

(138)

In conclusion, since satellite and terrestrial broadcasting platforms are in competition with each other, the measure, for the deployment, operation and maintenance of DTT in Area II, entails a distortion of competition between the two platforms. It should be noted that other platforms, especially IPTV, are also disadvantaged due to the measure. Although broadband has not yet reached the whole of Area II, it is highly likely that in the future it will extend its coverage significantly.

5.2.2.2.   Effect on trade

(139)

The measure has an impact on intra-Union trade. According to the case law of the European Courts, when ‘State financial aid or aid from State resources strengthens the position of an undertaking as compared with undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid’ (75).

(140)

Network operators are active in a sector in which trade exists between Member States. Abertis forms part of an international group of companies, so does the complainant, Astra. The measure for the deployment and operation and maintenance of DTT in Area II therefore affects trade between Member States.

5.2.3.   Conclusions on the presence of aid

(141)

In view of the arguments put forward above, the Commission considers that the measure fulfils the criteria laid down in Article 107(1) TFEU. Under these circumstances, the measure has to be considered as state aid within the meaning of Article 107(1) TFEU.

5.3.   COMPATIBILITY ASSESSMENT

5.3.1.   General considerations

(142)

The Commission actively supports the transition from analogue to digital broadcasting. The advantages of the digital switch-over were underlined in the Action Plan eEurope 2005 and in the two Communications on the digital switchover (76). The Commission also recognises that the digital switch-over could be delayed if left entirely to market forces.

(143)

Member States may use aid to overcome a specific market failure or to ensure social or regional cohesion (77). However, it must be shown in each specific case that the aid in question is an appropriate instrument to address the problem, is limited to the minimum necessary and does not unduly distort competition. Similarly, the Switchover Communication provides that in the specific area of digitisation, public intervention would be justified under two conditions: firstly, where general interests are at stake and secondly, in the event of a market failure, i.e. market forces alone fail to deliver in terms of collective welfare. It also specifies that in any case, public intervention should be supported by a sound market analysis.

(144)

The Switchover Communication also indicates that the transition to digital broadcasting represents a major industrial challenge that must be led by the market. In principle, each network should compete on its own strengths. In order to safeguard this principle, any public intervention should aim to be technologically neutral. Exceptions from this principle can be envisaged only if the intervention targets a specific market failure or imbalance and is at the same time appropriate, necessary and proportionate to overcome these difficulties.

(145)

If left to the market, in view of their disadvantaged social situation, there is a risk that not all parts of the population can benefit from the advantages of digital television. With respect to this social cohesion problem, Member States may want to make sure that all citizens have access to digital television once analogue TV is switched off. Since the digital switch-over entails costs for consumers and requires a change in habits, Member States may want to assist in particular the disadvantaged groups of society such as elderly people, low-income households or people living in peripheral regions.

(146)

In several state aid decisions, based on the Communications on the digital switch-over, the Commission applied the state aid rules in this sector (78). Member States have several possibilities to grant public funding for the switch-over to ensure that all geographical areas continue to have appropriate TV coverage. This includes funding for the roll-out of a transmission network in areas where otherwise there would be insufficient TV coverage (79). Such funding may however be granted only if it does not entail an unnecessary distortion between technologies or companies and is limited to the minimum necessary.

5.3.2.   Legal bases for assessing the compatibility of the envisaged measure

(147)

The Spanish authorities have invoked Articles 107(3)(c) and 106(2) TFEU to justify the measure if it was found to constitute state aid in accordance with Article 107(1) TFEU. Below, the Commission assesses the compatibility of the measure in the light of these provisions, taking into account the general considerations outlined above.

5.3.3.   Article 107(3)(c) TFEU

(148)

In order for the aid to be compatible under Article 107(3)(c), the Commission balances the positive and negative effects of the aid. In applying the balancing test, the Commission assesses the following questions:

(1)

Is the aid measure aimed at a well-defined objective of common interest?

(2)

Is the aid well designed to deliver the objective of common interest i.e. does it address a market failure or other objective? In particular:

(a)

Is the aid measure an appropriate instrument, i.e. are there other, better placed instruments?

(b)

Is there an incentive effect, i.e. does the aid change the behaviour of firms?

(c)

Is the aid measure proportional, i.e. could the same change in behaviour be obtained with less aid?

(3)

Are the distortions of competition and the effect on trade limited, so that the overall balance is positive?

5.3.3.1.   Objective of common interest

(149)

The aid scheme is aimed at accelerating the digital switch-over process in Spain and ensuring the continuity of TV reception to residents of certain remote and rural areas. In this respect, the measure is targeted to allow people living in those areas to watch television. Access to media, including TV transmission, is important for citizens to exercise their constitutional right to access information. The Commission has recognised the importance and the benefits of digital transmission in the Action Plan eEurope 2005 (80) as well as in its two Communications on the transition from analogue to digital broadcasting (81). In its Communication i2010 — A European Information Society for growth and employment  (82), the Commission has pointed out that the planned switch-off of analogue terrestrial television by 2012 will improve access to spectrum in Europe. As digital broadcasting uses spectrum more efficiently, it frees up spectrum capacity for other users, such as the new broadcasting and mobile telephony services, which will in turn stimulate innovation and growth in the TV and electronic communications industries.

(150)

It is therefore concluded that the measure is targeted at a well-defined objective of common interest.

5.3.3.2.   Well-defined aid

Market failure

(151)

As stated by the Spanish authorities, it is generally recognised that there is a risk that not all sectors of the population can benefit from the advantages of digital television (problem of social and regional cohesion). A market failure might exist where market players do not take sufficiently into account the positive effects of the digital switch-over on society as a whole because they do not have the economic incentives to do so (positive externalities). Moreover, with respect to social cohesion, Member States may want to make sure that all citizens have access to digital TV once analogue TV is switched off and may therefore also consider measures to ensure that all geographical areas continue to have appropriate TV coverage.

(152)

In the opening decision, the Commission recognised that there is a market failure in that the broadcasters are unwilling to bear the additional costs of the extension of coverage beyond their statutory obligations. Moreover, neither the satellite platforms nor private households have carried out investments ensuring the reception of digital channels via satellite by all the inhabitants of Area II. Therefore, the Commission recognises that people whose usual residence is in a rural area may be totally excluded from the free-to-air digital television signal reception if the digital coverage is left entirely to market forces and that public intervention can be beneficial through financial supports to individuals.

Technological neutrality, appropriateness and proportionality of the measure

(153)

In digital switchover cases, the principle of technological neutrality is well enshrined in several Commission decisions (83). It has been upheld by the General Court and the Court of Justice (84).

(154)

The choice of technology should normally be established by a technologically neutral tender, as happened in other Member States (85). In the absence of such a tender, the choice of a particular technology could be accepted if it had been justified by findings of an ex-ante study proving that, in terms of quality and cost, only one technological solution could have been selected (86). The burden of proof lies with the Member State, which has to demonstrate that such a study is sufficiently robust and was carried out in the most independent manner (87).

(155)

As pointed out in section 2.2, the vast majority of tenders have not been technologically neutral, since they refer, either explicitly through the definition of the object of the tender or implicitly in the description of the technical specifications, to terrestrial technology and DTT. Only DTT operators could fulfil these requirements (and only such operators have in fact participated in these tenders).Spain argues that references in the tender to DTT, or specifications referring to DTT equipment and transmission centres, do not mean that the use of such centres was compulsory for the bidders. These references cannot reasonably be interpreted as indicated by Spain. In any case, even if this were the right interpretation, such a formal argument ignores the commercial reality. Participating in tenders is resource intensive and therefore costly for any bidder. Splitting up the intervention in Area II in several hundred individual tenders has multiplied the costs, which amount to a significant entry barrier to any bidder wishing to cover the entire Area II. The combination of central government interventions in favour of DTT technology, as explained in paragraphs 88 and 89, specific tender references to DTT and the need to enter into hundreds of different tender procedures therefore sent a strong signal to other platform operators that participating in such tenders would not be commercially justified. It is therefore concluded that these references in the vast majority of cases made it impossible for operators of other platforms to compete (88).

(156)

The ex-ante study provided by the Spanish authorities, as discussed in paragraph 52, does not sufficiently demonstrate the superiority of the terrestrial platform over satellite. On the contrary, the study concludes that the choice of a particular technological solution for the extension of coverage shall be analysed on a region-by-region basis, taking into account the topographic and demographic particularities of every region. This conclusion advocates instead the need to carry out a technologically neutral tender to determine which platform is the most suitable.

(157)

In the course of the investigation, some of the Autonomous Communities submitted internal calculations comparing the costs of using both technologies to extend the coverage. However, in addition to uncertainty about the date of these calculations, none of them was detailed and robust enough to justify the choice of terrestrial technology to extend the coverage. What is more, none of them was carried out by an independent expert.

(158)

Concerning the two cost studies submitted by Abertis, it has to be noted that they were performed in 2010, long after the investigated measures were put into effect. Irrespectively of whether they could be considered independent and sufficiently robust, the fact that they are subsequent to the contested measures means that such studies cannot be cited in support of the argument that the Spanish government failed to hold a technologically neutral tender. In addition, the results of these studies are contradicted by cost estimations provided by Astra which demonstrate that satellite technology is more cost effective.

(159)

Furthermore, the investigated measure cannot be considered appropriate.

(160)

The fact that some households in Area II receive free-to-air channels via satellite (89) demonstrates that terrestrial technology is not always the most efficient and appropriate platform. It is also noted that satellite solution has been used in some other Member States (90).

(161)

Moreover, the fact that Astra competed in and won the technologically neutral tender for extension of digital television coverage in Cantabria suggests, at least, that satellite platform can provide this service (91).

(162)

The appropriateness of the measure is still being questioned. While the transition from analogue TV to DTT in the 800 MHz band was completed in Spain on 3 April 2010, in 2011 it was decided to auction the 800MHz band frequencies. As a result, it is necessary to transfer broadcasts to other channels located below 790 MHz, no later than by 1 January 2014. As this creates additional costs, on 5 November 2011 Spain notified two measures for households and broadcasters with a budget of EUR 600–800 million in Area I (no measure has yet been notified for Area II) (92). Such cost would not have arisen if other platforms (IPTV, cable or satellite) had been chosen.

(163)

What is more, it has been pointed out that 4G mobile frequencies LTE interfere with DTT signals, as a result of which households need to buy costly filters to protect their DTT signal from the LTE waves (93). It cannot be ruled out that similar interferences are a more general problem undermining the future appropriateness of terrestrial broadcasting, especially in the context of greater and wider roll-out of NGA networks.

(164)

Spain put forward two other arguments in support of the view that satellite transmission would be more expensive than DTT. Firstly, in their agreements with certain providers, broadcasters have territorial restrictions. To ensure such conditional access would be more expensive for satellite technology. Secondly, satellite technology would not be equipped to broadcast a large number of regional channels. These allegations have not been substantiated and are contradicted by the fact that Astra's Cantabria contract contained a professional system of conditional access. Moreover, according to Astra's cost calculations, satellite technology would still be cheaper even if separate agreements had to be entered into with each of the Spanish regions. As regards regional broadcasting, Astra maintains that the Spanish government's number of 1 380 channels is hugely inflated (94). Again, according to its own calculations, the satellite option would be cheaper even if regional and local channels were included.

(165)

There is also evidence that the regional governments were aware that a technological alternative existed to the extension of the terrestrial platform. The investigation revealed that early in the process some regions met Astra representatives. At these meetings, Astra presented to them a proposal for a satellite solution, which, however was not further explored by the regional governments.

(166)

As regards proportionality, when designing the intervention for Area II, it would have been appropriate for the central government to first carry out a cost comparison (or tender) at the national level. As the main cost of the satellite network arises from its satellite capacity, this platform operates with significant economies of scale (95). Astra's negotiations with the regional governments show that it offered significant price reductions if several regions jointly entered into a contract. Further price reductions could therefore have been expected if a national tender had been carried out. Instead, by carrying out decentralised and non-harmonised measures, sometimes even at municipal level, a technology with such economies of scale was already put at a significant disadvantage. As a result, the total amount of state aid necessary to provide digital TV services to households in Area II increased. While it is for Spain to decide on its administrative organisation, when providing central government funding, instead of pushing for the use of DTT, the Spanish government could at least have encouraged the Autonomous Communities to take into account in their tenders possible cost saving efficiencies available from particular platforms.

(167)

In conclusion, the Commission considers that the investigated measure did not respect the principle of technological neutrality. As explained above, the measure is not proportional and it is not an appropriate instrument for ensuring the coverage of free-to-air channels to the residents of Area II.

Operation and maintenance of the networks

(168)

Concerning the ongoing financing granted for operation and maintenance of the subsidised networks, as this is ancillary to the deployment aid, it cannot be considered technologically neutral. It has been directed to the conservation of the centres that broadcast a signal via terrestrial platforms. Such aid is therefore also incompatible.

(169)

Any future aid for operation and maintenance has to be notified and has to respect the principle of technological neutrality.

5.3.3.3.   Avoiding unnecessary distortions

(170)

While public intervention might be justified in view of the existence of certain market failures and possible cohesion problems, the way the measure is designed gives rise to unnecessary distortions of competition.

Conclusion regarding Article 107(3)(c) of TFEU

(171)

It is concluded that the investigated measure, including the ongoing aid, is not an appropriate, necessary and proportionate instrument to remedy the identified market failure.

5.3.4.   Article 106(2) TFEU

(172)

The Article 106(2) exception that can apply to State compensation for the costs of providing a public service cannot be invoked neither in this case in general, nor in the case of the Basque Country in particular. The Commission considers that the national (or regional) authorities have to define the SGEI clearly and entrust it to a particular undertaking. As assessed in paragraphs 119 to 122, it is considered that the Spanish and Basque authorities did not clearly define the operation of a terrestrial platform as a public service.

5.3.5.   Existing aid

(173)

Abertis suggests that the deployment of the terrestrial broadcasting network in Area II was financed almost entirely by the Spanish regions using public funds based on legislation dating back to 1982, i.e. prior to the date of accession of Spain to the European Economic Community in 1986. Therefore, according to Abertis, the scheme could be considered part of the ongoing public financing of the operation of local terrestrial networks and could therefore be considered as existing aid.

(174)

The financing of the extension of the terrestrial network by the regions indeed started in the early 1980s, but at that time there were no private broadcasters on the market. The extended infrastructure served therefore only the needs of the public broadcaster who, in any event, had the obligation to provide its signal to the majority of the population. Moreover, at that time terrestrial television was the only platform for transmitting the television signal in Spain. As a result, the extension of the only available network did not create distortion of competition with other platforms.

(175)

Since then the legislation and the technology developed, leading to new broadcasting platforms and new market players, in particular private broadcasters. Since the beneficiary and the overall circumstances of the public financing have changed substantially, the investigated measure cannot be regarded as an alteration of purely formal or administrative nature. It is rather an alteration affecting the actual substance of the original scheme and therefore is to be considered as a new aid scheme (96). In any case, the switch from analogue to digital TV has become possible only due to recent technological advance and it is therefore a new phenomenon. The Spanish authorities should therefore have notified this new aid.

5.4.   CONCLUSION

(176)

It is considered that the financing granted by Spain (including aid granted by the Spanish Autonomous Communities and the local corporations) to terrestrial network operators for the upgrade and digitisation of their network to provide free-to-air TV channels in Area II constitutes aid within the meaning of Article 107(1) TFEU. The aid is not compatible with the common market, to the extent the criteria of technological neutrality was not complied with. Furthermore, the aid was not notified (97) to the Commission as required by Article 108(3) TFEU and was unlawfully put into effect without Commission authorisation. It must therefore be recovered from the terrestrial network operators.

(177)

In addition, the Commission considers that the ongoing aid for operation and maintenance of the digitised network granted without tenders or following technologically non-neutral tenders is also incompatible. Furthermore, this aid was not notified to the Commission as required by Article 108(3) TFEU and was unlawfully put into effect without Commission authorisation.

(178)

Any future state aid for maintenance and operation needs to be notified and has to respect the principle of technological neutrality.

6.   RECOVERY

6.1.   NEED TO ELIMINATE AID

(179)

According to the TFEU and the established case law of the Court of Justice, the Commission is competent to decide that the State concerned must abolish or alter aid (98) when it has been found to be incompatible with the internal market. The Court has also consistently held that the obligation on a State to abolish aid regarded by the Commission as being incompatible with the internal market is designed to re-establish the situation previously existing (99). In this context, the Court has established that this objective is attained once the recipient has repaid the amounts granted by way of unlawful aid, thus forfeiting the advantage that it had enjoyed over its competitors on the market, and the situation prior to the payment of the aid is restored (100).

(180)

In accordance with that case-law, Article 14 of Council Regulation (EC) No 659/1999 (101) states that ‘where negative decisions are taken in respect of unlawful aid, the Commission shall decide that the Member State concerned shall take all necessary measures to recover the aid from the beneficiary’.

(181)

Thus, given that the financing of upgrade and digitisation of the terrestrial platform and subsequent maintenance and operation granted in Spain since the years 2008-2009 is illegal and incompatible aid, Spain should therefore be required to recover the incompatible aid, in order to re-establish the situation that existed on the market prior to the granting of the aid.

6.2.   STATE AID RECIPIENTS AND QUANTIFICATION OF THE AID

(182)

Platform operators are direct beneficiaries where they directly receive funds for the upgrading and extension of their networks and/or for the operation and maintenance. Where the aid was paid to public undertakings which subsequently carried out tenders for extension of coverage, the selected platform operator is considered to be the indirect beneficiary. The illegal and incompatible aid shall be recovered from the platform operators whether they are direct or indirect beneficiaries.

6.2.1.   Qualification of the tenders

(183)

In cases where the illegal aid was granted following a technologically non-neutral tender for extension of coverage, the Member State must qualify the tenders as falling into category of supply of hardware or extension of coverage, subject to the conditions set out below.

(184)

Tenders for the extension of coverage entrust the winning company with the mission of providing (including building) an operative DTT network. To this end, necessary tasks include design and engineering of the network, transport of the signal, deployment of the network and supply of the necessary equipment.

(185)

In tenders for the supply of hardware, the winning company is requested to provide the equipment necessary for the upgrading of the network. To this end, necessary tasks include the supply, installation and activation of the equipment, as well as training of the staff. No recovery is required for these tenders for supply of equipment.

(186)

Having classified these tenders for an extension of coverage, Spain has to recover the aid whenever a tender does not fulfil two cumulative conditions: 1. the tender refers to extension of coverage of digital television (and not digital terrestrial television) and/or contains a clause of technological neutrality; and 2. their technical specifications admit technologies other than terrestrial. Apart from the tenders, which the Commission itself considers technologically neutral, if Spain considers that other tenders fulfil the two conditions, it will provide the Commission with the related tender documents.

Example

Among the tenders reviewed by the Commission, the one organised by the Autonomous Community of Extremadura is provided as an example of technologically non-neutral tender for extension of coverage (102). Despite the title of the tender, which refers only to the supply of hardware, the object of the tender did in fact include the design and deployment of the network (103). The specifications of the tender make it technologically non-neutral (104), despite the insertion of a clause that is at first sight a clause of technological neutrality (105).

Another example of a technologically non-neutral tender for extension of coverage is the one organised by the public undertaking (AICCM) in the Autonomous Community of Madrid (106). In this case, both the title and the contents of the tender imply that it is a tender for extension (107) only directed to the terrestrial platform (108).

(187)

The tenders shall be qualified not only according to their title, but above all according to their content, as the title alone does not make it possible to clearly define their scope.

(188)

The aid granted after non-neutral tenders for extension of coverage have been held will then be subject to recovery.

6.2.2.   State aid recipients and recovery

(189)

Below are the different categories of aid beneficiaries. On the basis of the information received from Spain, the Autonomous Communities and the approximate aid categories are listed in tables. Since Spain has not provided full information on the aid beneficiaries, Spain must classify the beneficiaries in the different categories above and provide the Commission with the relevant supporting evidence. As already underlined in paragraph 138, the regime as such is discriminatory.

(190)

In addition, the vast majority of tenders for extension reviewed by the Commission were classified as not respecting the principle of technological neutrality. Nevertheless, the Commission has also shown that it cannot be ruled out that in exceptional individual cases the tender was technologically neutral.

Spain must therefore indicate and provide sufficient evidence on particular tenders that were technologically neutral, on the basis of the conditions specified in paragraph 186 above.

(191)

Where Autonomous Communities have organised non-neutral tenders for extension of coverage, as in the case of Extremadura referred to in the above example, the winners of such tenders are direct beneficiaries of the illegal aid subject to recovery. The sum to be recovered equals the full amount received by the winners of the tenders for the extension. From the information received from Spain, the Commission has found that (at least) the Autonomous Communities of Andalucía, Extremadura, Murcia, La Rioja and Valencia have carried out such tenders.

Undertakings subject to recovery

Recovery

Method by which the aid is provided

CA concerned

Direct beneficiaries

Winner(s) of the technologically non-neutral tender(s) for extension of coverage organised by the autonomous communities

Full amount received under the technologically non-neutral tender(s) for extension of coverage

Transfer of funds to the beneficiary selected in the tenders

Andalucía

Extremadura

Murcia

La Rioja

Valencia

(192)

In the cases where illegal aid was granted for the upgrade of the terrestrial network to town councils acting as network operators, the town councils are direct beneficiaries of the aid. The sum to be recovered equals the full amount received by the town councils from the central and regional authorities for the extension of coverage of their network. On the basis of the information received from Spain, the Commission has found that this applies at least to town councils located in the Autonomous Communities of Andalucía, Canarias, Extremadura and Murcia (non-exhaustive list).

Undertakings subject to recovery

Recovery

Method by which the aid is provided

CA concerned

Direct beneficiaries

Town councils acting as network operators

Full amount received from the authorities for extension of coverage

Transfer of funds to the beneficiary

Andalucía

Canary Islands

Extremadura

Murcia

Example

In Murcia, using the money received from the region and MITyC, the town councils organised almost all of the 143 tenders identified. Provided that they are not de minimis, they would fall under this category.

(193)

In the cases of Autonomous Communities where a public undertaking acting as a network operator carried out the extension of coverage of the network, such an undertaking is considered to be a direct beneficiary and is subject to recovery. The Commission has identified Aragón Telecom, Gestión de Infraestructuras Públicas de Telecomunicaciones del Principado de Asturias, S.A., Multimedia de les Illes Balears S.A., Instituto Tecnologico de Canarias, Sociedad Regional de Cantabria I+D+I (IDICAN), Fundación Centro Tecnológico en Logística Integral de Cantabria (CTL), Promoción de Viviendas, Infraestructuras y Logística, S.A in Castilla y León (Provilsa), Redes de Telecomunicación Galegas Retegal, S.A. (Retegal), Obras Publicas y Telecomunicaciones De Navarra, S.A. (Opnatel), Itelazpi S.A., Centre de Telecomunicacions i Tecnologies de la Informació (CTTI) in Cataluña and Agencia de Informática y Comunicaciones de la Comunidad de Madrid (AICCM) to be companies falling into this category. The sum to be recovered is the full amount of funds received from the authorities for the extension.

(194)

In these cases, however, it is not ruled out that the public undertakings carried out part of the extension themselves, and partly contracted the extension to a network operator through a tender. In the latter case the illegal aid was actually transferred to the companies who won the tenders, and they are therefore effective, although indirect, beneficiaries of the aid. Thus, to avoid double recovery, the illegal aid shall be recovered from the effective beneficiaries, i.e. (a) from the public undertaking for the amount received for the extension minus the funds transferred to network operators following technologically non-neutral tenders for extension of coverage and (b) from the network operators for the amounts contracted following a technologically not neutral tender for extension of coverage organised by the public undertaking concerned.

Undertakings subject to recovery

Recovery

Method by which the aid is provided

AC concerned/public undertaking concerned/approximate amount received by the public undertaking for the extension of coverage

Direct beneficiaries

Public undertaking

Full amount received from the authorities for extension of coverage (minus funds transferred to network operators following technologically non-neutral tenders for extension of coverage, if applicable)

Time of transfer of funds from the authorities

Aragón (Aragón Telecom, EUR 9 million)

Asturias (Gestión de Infraestructuras Públicas de Telecomunicaciones del Principado de Asturias SA, EUR 14 million)

Balearic Islands (Multimedia de Illes Balears SA, EUR 4 million)

Canary Islands (Instituto Tecnológico de Canarias, EUR 3,7 million)

Cantabria (Idican; CTL, EUR 3 million)

Castilla y León (Provilsa, EUR 44 million)

Cataluña (CTTI, EUR 52 million)

Galicia (Retegal, EUR 17 million)

Madrid (AICCM, EUR 3,6 million)

Navarra (Opnatel, EUR 7 million)

Basque Country (Itelazpi, EUR 10 million)

AND if applicable

 

Indirect beneficiaries

Winner(s) of the technologically non-neutral tenders for extension of coverage organised by the public undertaking

Full amount received under the technologically not neutral tenders for extension of coverage

Transfer of funds to the beneficiary selected in the tender

Example

In the case of Madrid, where a tender organised by the public undertaking (AICCM) was provided as an example of a technologically non-neutral tender for extension of coverage (see paragraph 186, the amount of EUR 3 622 744 granted to the contracted company, Retevision S.A., must be recovered in full from Retevision, as winner of the non-neutral tender, and subtracted from the amount to be recovered from AICCM, the public undertaking which is the direct beneficiary (109).

(195)

The ongoing aid is for the maintenance and operation of DTT networks. The operators of these networks are the beneficiaries of the maintenance and operation aid. The aid has therefore to be recovered from those network operators.

(196)

In the cases where the individual beneficiaries received funding not exceeding thresholds specified in Regulation (EC) No 1998/2006, such funding is not considered state aid if all the conditions set by this Regulation are fulfilled, and is not subject to recovery.

(197)

Recovery shall be effected from the date on which the advantage to the beneficiaries took effect, i.e. when the aid was made available to the beneficiary, and shall bear interest until effective recovery.

7.   CONCLUSION

The Commission finds that the Kingdom of Spain has unlawfully implemented the aid for the operators of the terrestrial television platform for the extension of coverage of digital terrestrial television in remote and less urbanised areas of Spain in breach of Article 108(3) of the Treaty on the Functioning of the European Union. The aid, including the (ongoing) aid for operation and maintenance, shall be recovered from the platform operators which are the direct or indirect beneficiaries. This includes local corporations where they act as platform operators.

HAS ADOPTED THIS DECISION:

Article 1

The state aid granted to the operators of the terrestrial television platform for the deployment, maintenance and operation of the digital terrestrial television network in Area II unlawfully put into effect by Spain in breach of Article 108(3) of the TFEU is incompatible with the internal market, except for the aid which was granted in compliance with the criterion of technological neutrality.

Article 2

The individual aid granted under the scheme referred to in Article 1 does not constitute aid if, at the time it is granted, it fulfils the conditions laid down by the regulation adopted pursuant to Article 2 of Council Regulation (EC) No 994/98 (110) applicable at the time the aid is granted.

Article 3

1.   Spain shall recover the incompatible aid granted under the scheme referred to in Article 1 from the Digital Terrestrial Television operators, whether they received the aid directly or indirectly.

2.   The sums to be recovered shall bear interest from the date on which they were made available to the beneficiaries until their recovery.

3.   The interest shall be calculated on a compound basis in accordance with Chapter V of Commission Regulation (EC) No 794/2004 (111).

4.   Spain shall cancel all outstanding payments of aid under the scheme referred to in Article 1 with effect from the date of notification of this decision.

Article 4

1.   Recovery of the aid granted under the scheme referred to in Article 1 shall be immediate and effective.

2.   Spain shall ensure that this Decision is implemented within four months following the date of notification thereof.

3.   Within two months following notification of this Decision, Spain shall submit the following information to the Commission:

(a)

the list of beneficiaries that have received aid under the scheme referred to in Article 1 and the total amount of aid received by each of them under that scheme, broken down by the categories indicated in section 6.2 above;

(b)

the total amount (principal and recovery interests) to be recovered from each beneficiary;

(c)

a detailed description of the measures already taken and planned in order to comply with this Decision;

(d)

documents demonstrating that the beneficiaries have been ordered to repay the aid.

4.   Spain shall keep the Commission informed of the progress of the national measures taken to implement this Decision until recovery of the aid granted under the scheme referred to in Article 1 has been completed. It shall immediately submit, at the Commission's request, information on the measures already taken and planned in order to comply with this Decision. It shall also provide detailed information concerning the amounts of aid and interest already recovered from the beneficiaries.

Article 5

This Decision is addressed to the Kingdom of Spain.

Done at Brussels, 19 June 2013.

For the Commission

Joaquín ALMUNIA

Vice-President


(1)  OJ C 337, 14.12.2010, p. 17.

(2)  http://www.boe.es/boe/dias/2005/06/15/pdfs/A20562-20567.pdf.

(3)  http://www.boe.es/boe/dias/2005/07/30/pdfs/A27006-27014.pdf.

(4)  OJ C 335, 11.12.2010, p. 8.

(5)  See footnote 1.

(6)  In addition to submitting comments in this case, Castilla-La Mancha subsequently submitted its observations on case C 24/2010.

(7)  Astra challenged the termination of the contract before a court of first instance in Santander (procedure No 1728/2009), which on 23 December 2011 ordered the Cantabrian authorities to indemnify Astra for the unjustified termination of the contract. The Court did not find any breach of contract on the part of Astra that would justify the termination of the contract. According to the Court, the decision of the Spanish central government to develop the national strategy for DTT was one of the reasons for the termination of the contract. See judgment 000313/2011 of the Court of First Instance of Santander.

(8)  The concession includes the assignment of a frequency for terrestrial broadcasting.

(9)  The terms ‘platform operators’ and ‘network operators’ are used interchangeably in the text of the Decision.

(10)  ‘Internet Protocol Television’ is a term used to refer to distribution systems of TV and video signals through an electronic communications network using the internet Protocol.

(11)  The Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on transforming the digital dividend into social benefits and economic growth (COM(2009) 586) recommended that the Member States should cease using the 800 MHz band for high-power broadcasting services and fully implement the EU technical harmonisation decision by a certain date agreed at EU level.

(12)  See for instance, for France state aid N666/09 — Amendment of aid scheme to TNT N 111/2006, for Slovakia state aid N671/09 — Switch-over to digital TV broadcasting in Slovakia, for Spain state aid SA.28685 (2011/NN) — Reception of digital television in Cantabria. It should also be noted that in Spain in the remote and less urbanised areas under investigation (‘Area II’) it was not always viable to provide TV signal via the DTT platform and therefore satellite transmission was chosen in some areas.

(13)  State aid SA.32619, Compensation of damages for the liberation of digital dividend (OJ C 213, 19.7.2012, p. 41).

(14)  Around 26 free-to-air national channels and around 30 regional channels.

(15)  See footnote 3.

(16)  It established the obligation of private broadcasters to reach by that date 96 % of the population in their respective areas of coverage, while public broadcasters were required to reach 98 % of the population in their respective areas of coverage. In this Area I, broadcasters had the obligation to cover these percentages of population with terrestrial digital television, and they had to bear the costs of digitisation themselves. Hence, no state aid was necessary

(17)  http://www.televisiondigital.es/Documents/PlanNacionalTransicionTDT.pdf.

(18)  Subsequently classified in Phases I, II and III.

(19)  http://www.boe.es/boe/dias/2008/03/06/pdfs/A13832-13834.pdf.

(20)  The decision regarding the distribution of funds for the development of broadband and the digitisation of television in Area II was left to the regional authorities.

(21)  The framework agreements were signed between MITyC and the Autonomous Communities in 2006 within the framework of the Plan Avanza.

(22)  http://www.boe.es/boe/dias/2009/07/02/pdfs/BOE-A-2009-10972.pdf.

(23)  See, for example, Andalucía's Addendum http://www.boe.es/boe/dias/2009/10/28/pdfs/BOE-A-2009-17108.pdf.

(24)  In total, over 600 agreements — framework agreements, addenda etc. — were concluded between the authorities concerning the extension of coverage.

(25)  E.g. Extremadura, Asturias, Canarias, Cataluña, Madrid.

(26)  E.g. Aragon.

(27)  As in the cases of Aragón or Asturias.

(28)  Extremadura.

(29)  Out of 516 tenders held by all the regions except Castilla-La Mancha the Commission analysed a sample of 82, both for extension (17) and supply (65). Only 9 of these were classified as technologically neutral: 3 tenders for extension (Castilla y Leon), and 6 for supply (5 in the Canary Islands and one in Cantabria).

(30)  Excluding Castilla-La Mancha.

(31)  The arguments of the central and regional authorities are presented together as the position of Spain (or of the Spanish authorities), except for the Basque Country, which requested the application of public service compensation rules.

(32)  Judgment of the ECJ of 24 July 2003 in case C-280/00, Altmark Trans GMBH and Regierungspräsidium Magdeburg v Nahverkehrsgesellschaft Altmark GMBH, ECR 2003 1-7747.

(33)  Commission Decision 2005/842/EC of 28 November 2005 on the application of Article 86(2) of the EC Treaty to state aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ L 312, 29.11.2005, p. 67) and Community framework for state aid in the form of public service compensation (OJ C 297, 29.11.2005, p. 4) (‘Framework’).

(34)  Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid (OJ L 379, 28.12.2006, p. 5).

(35)  The confidential data are indicated in the text of the Decision with […].

(36)  According to Astra, thanks to the funds provided by the authorities under Area II measures, Hispasat, a satellite provider co-owned by Abertis and serving Area III, can provide its satellite capacity to broadcasters at no additional cost. Finally, Astra claims that as a result of the measure, Abertis obtained the exclusive use of the must carry obligation in Area III.

(37)  It claims that satellite platforms have a very high number of users with conditional access around the world, and the complexity of conditional access was not an obstacle for its deployment.

(38)  Abertis refers to its own cost study conducted in January 2010 to compare the respective costs of using DTT and satellite technology to provide digital television services in Area II. According to this study, the overall cost for using DTT technology would represent about EUR 286 million over a 10-year period, whereas the total costs of using the satellite technology in the same period would amount to approximately EUR 532 million. Abertis submitted this internal study to an external accountancy company, whose report confirmed its findings, while pointing out that the satellite and DTT cost estimates were conservative. In any event, both studies confirmed the appropriateness of the cost comparators and the conclusion that using satellite technology to provide digital TV services in Area II would have been significantly more costly than using DTT, mainly owing to the higher economic and social costs to be borne by the consumers in the case of satellite.

(39)  According to those studies, satellite technology would entail higher costs for the provision of the services at issue. Those costs would have to be supported by broadcasters and local network operators as well as by the viewers. The cost study carried out by Abertis also concluded that the use of satellite technology would require an additional period of approximately six months before the digital switchover could be achieved, as consumers in Area II would need time to purchase and install satellite decoders and dishes, etc. This in turn would give rise to additional costs related to simulcast broadcasting (analogue and digital platforms broadcasting simultaneously) during that period of time.

(40)  Such guidance can be found in the relevant documents of the Central government. In particular, the framework agreements signed in December 2008, entitled Framework Collaboration Agreement between the Ministry of Industry, Tourism and Trade and the Autonomous Community of […] for the Development of the National Transition Plan to DTT, provide for a list of activities that will be financed by the central and regional authorities in order to reach a digital television coverage equal to the existing analogue coverage. On the one hand they refer to existing transmission centres upgraded by broadcasters (DTT centres deployed in Area I) and, on the other hand, to ‘coverage extensions’ — additional centres that will need to be deployed in order to ensure the same penetration of digital television. Given that only the DTT technology requires existence of transmission centres, it seems clear that the planned actions concern only the DTT technology. Further, the addenda to the Framework Agreements signed between October and December 2009 refer to funding for the coverage extension. They define what should be understood by ‘actions to extend the coverage’, making explicit reference only to terrestrial technology.

(41)  In meetings with the Autonomous Communities, MITyC expressed its objective of ensuring the transition to DTT also in Area II. This is confirmed by a presentation, publicly available on internet, and signed by MITyC. http://www.fenitel.es/asamblea08/PONENCIAS/4SETSI.pdf. It is also confirmed by statements from Autonomous Communities in reply to the Commission's request for information. In their replies, the Autonomous Communities explicitly refer to the National Transition Plan adopted by Royal Decree 944/2005 and to the Plan Avanza. See, for example, the reply from Extremadura: ‘In accordance with … Royal Decree 944/2005… approving the National Technical Plan for terrestrial digital television setting out the local initiative concerning extension of DTT coverage …’.

(42)  Tender for supply of equipment of 30 July 2008 published by the Autonomous Community of La Rioja and tender for extension SE/CTTI/06/08 of 27 July 2008 published by the Autonomous Community of Catalonia.

(43)  See, for example, resolution of the Authorities of Castilla y Leon: RESOLUCIÓN de 24 de septiembre de 2012, de la Dirección General de Telecomunicaciones, por la que se anuncia la licitación del servicio: Contrato de servicios para la conservación y renovación tecnológica de las infraestructuras de televisión digital de la Junta de Castilla y León. Expte.: Serv 05-4/12; BOCYL 10 Octubre 2012.

(44)  Commission decisions N622/2003 Digitalisierungsfonds Austria, C25/2004 DVB-T Berlin Brandenburg (paragraph 62), C34/2006 DVB-T North-Rhine Westphalia (paragraph 83), C52/2005 Mediaset (paragraph 96).

(45)  Case T-196/04 Ryanair Ltd v European Commission, [2007] ECR II-2379, paragraph 88, Case C-82/01P Aéroports de Paris v Commission, [2002] ECR I-9297, paragraphs 107-109 and 121-125.

(46)  See Joined Cases T-443/08 and T-455/08, Freistaat Sachsen and Land Sachsen-Anhalt (T-443/08) and Mitteldeutsche Flughafen AG and Flughafen Leipzig-Halle GmbH (T-455/08) v European Commission [2011] ECR II-01311, paragraph 115, where the Court states: ‘The fact that an activity is not engaged in by private operators or that it is unprofitable are irrelevant criteria in regard to the classification of that activity as an economic activity (…).’

(47)  Communication from the Commission on the application of the European Union state aid rules to compensation granted for the provision of services of general economic interest (OJ C 8, 1.1.2012, p. 4)

(48)  Case C-364/92, SAT/Eurocontrol,[1994] paragraphs 19 to 30, ECR I-43, C-113/07 P, Selex, [2009], ECR I-2207.

(49)  Case C-343/95, Calì & Figli, [1997], ECR I-1547, paragraph 22.

(50)  Case T-155/04 Selex, [2006] ECR II-4797, paragraphs 73-82, confirmed by C-113/07, Selex [2009] ECR I-2307.

(51)  As set out in section 2.1.3. public broadcasters have a 98 % coverage obligation and therefore had to cover Area II by their own means. Moreover, the national public TV channels of RTVE and regional public channels are broadcast via a different network. While private broadcasters use the Single Frequency Network (SFN) signal, public broadcasters use the Red Global Española (RGE) network. As a result of these differences, the terrestrial facilities require different equipment for each of the two networks.

(52)  For example, Aragon telecom, Gestión de Infraestructuras Públicas de Telecomunicaciones del Principado de Asturias, S.A., Multimedia de les Illes Balears S.A., Instituto Tecnologico de Canarias, Sociedad Regional de Cantabria I+D+I (IDICAN), RETEGAL and Itelazpi are public companies that were charged with the task of extension and for that reason they organised tenders for the supply of equipment necessary to digitise broadcasting centres. Fundación Centro Tecnológico en Logística Integral de Cantabria, Centre de Telecomunicacions i Tecnologies de la Informació in Catalunya and Agencia de Informatica y Comunicaciones de la Comunidad de Madrid were in charge of organising tenders for extension of DTT coverage, the extension was therefore executed by the successful bidders. OPNATEL in Navarra was in charge of carrying out extension and it acquired the necessary equipment without tenders.

(53)  For example, Andalucía, Castilla y León, Extremadura, Murcia, La Rioja and Valencia.

(54)  As explained above in paragraph (33), in the case of tenders for the extension of coverage, the winning company was charged with the mission of providing, and in many cases building, an operative DTT network. To this end, necessary tasks included design and engineering of the network, transport of the signal, deployment of the network and supply of the necessary equipment. In addition, tenders for the supply of hardware were organised in the case of already existing networks. The winner of such tenders was expected to upgrade with the necessary equipment, i.e. supply, instal and activate the equipment.

(55)  E.g. Abertis and Retevision won non-neutral tenders for the extension of coverage in Extremadura and Castilla y Leon for the total sum of EUR […] million.

(56)  Andalucía, Canarias, Extremadura, Murcia.

(57)  As set out in paragraph 21, Abertis dominates the market for the transmission of free to a TV signals on the terrestrial platform in Area I and via its subsidiary Hispasat in Area III. By extending the reach of digital terrestrial TV to Area II, the provision of nationwide free to air TV signals remains under Abertis' control. The entry of Astra in Area II could also generate more platform competition also in Areas I and III in the future. By way of analogy, there are numerous studies demonstrating the benefits in terms of lowering prices and increasing quality of service when satellite entered the TV market in the US. Prior to satellite entry, cable firms had enjoyed monopoly power in local geographic areas. Compare, for example, Chenghuan Sean Chu, The effect of satellite entry on cable television prices and product quality, RAND Journal of Economics Vol. 41, No 4, winter 2010, pp. 730-764.

(58)  This was the case of Retevision, entirely owned by Abertis, which won non-neutral tenders for extension organised in Madrid and Catalonia for the total sum of EUR […] million.

(59)  C52/05 — Digital decoders Italy (OJ C 118, 19.5.2006, p. 10 and OJ L 147, 8.6.2007, p. 1).

(60)  To give some examples of companies which have won tenders, Tredess is a manufacturer of digital transmission equipment belonging to the Televes Group which also manufactures digital satellite TV receivers, antennas, dishes (Compare: http://www.tredess.com and http://www.televes.es.) Similar: Mier (http://www.mier.es), Elecnor (http://www.elecnor.es/es.negocios.infraestructuras/telecomunicaciones) Itelsis, BTESA, Axion, Retegal, Itelazpi, Telecom CLM.

(61)  The tenders in Area II regarding the extension of coverage often ask for turnkey solutions which require integrating, installing and supplying several equipment components (dish, antenna, transmitter, satellite receiver). In most cases the solution provided included satellite receiver equipment in order to receive the digital signal already distributed through satellite by the broadcasters.

(62)  As stated in the protocol on the public broadcasting system of the Member States annexed to the Treaty of Amsterdam.

(63)  Among others, Ley 31/1987, de 18 diciembre, de Ordenación de las Telecomunicaciones; Royal Decree-Law 529/2002 of 14 July, regulating the provision of the essential service relating to the support network for broadcasting television services during a strike; rulings of the Supreme Court (Judicial Review Court, 3rd Section) of 23 July 2009 (JUR 2009\381376), Legal Basis Two; and of 18 December 2009 (RJ 2010\2313), Legal Basis Three: ‘It is unquestionably of public interest to guarantee the extension and universal cover of the state television channels in remote and isolated areas of the country (to be in parity with those which do not have these characteristics) which are not covered by the commitment made by the television operators’.

(64)  Ley 11/1998, de 24 de abril, General de Telecomunicaciones.

(65)  These include services related to public defence and civil protection and operation of the telephony network.

(66)  Ley 32/2003, de 3 de noviembre, General de Telecomunicaciones.

(67)  Article 2(1) of the Law states: ‘Telecommunications services are services of general interest provided under the rules of free competition’.

(68)  Annex II of the law 32/2003 contains precise, technologically neutral, definitions of the telecommunications and electronic communications network. ‘Telecommunications: any transmission, emission or reception of signs, signals, writing, images and sounds or information of any nature by wire, radio electricity, optical means or other electromagnetic systems’. ‘Electronic communications network means transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed’.

(69)  Recitals 6 and 7 and Article 5 of the Conventions.

(70)  The study has not been made available to the Commission.

(71)  Hispasat provides these services in support of the DTT network in Area II.

(72)  As, for example, France.

(73)  For example, Antena 3, Cuatro, Telecinco, La Sexta, La Siete, Teledeporte, TVE, La2, Canal 24 horas.

(74)  Analysis of the television market submitted by Spain in the notification of the measure: Compensation for damages for liberation of the digital dividend in Spain, SA.32619 (2011/N).

(75)  T-55/99, Confederación Espanola de Transporte de Mercancias (CETM) v Commission of the European Communities, [2000] ECR II-3207.

(76)  COM(2002)263 final, eEurope 2005: An information society for all, COM(2003)541 final, Communication from the Commission on the transition from analogue to digital broadcasting (from digital ‘switchover’ to analogue ‘switch-off')’ and COM(2005)204 final, Communication from the Commission on accelerating the transition from analogue to digital broadcasting.

(77)  See Less and better target state aid: a roadmap for state aid reform 2005-2009, COM(2005)107 final.

(78)  See, among others, N622/03 Digitalisierungsfonds — Austria (OJ C 228, 17.9.2005, p. 12); C25/04 Introduction of digital terrestrial television (DVB-T) in Berlin-Brandenburg — Germany (OJ L 200, 22.7.2006, p. 14); C24/04 Digital terrestrial television in Sweden (OJ L 112, 30.4.2007, p. 77); C52/05 Digital decoders Italy (OJ L 147, 8.6.2007, p. 1); N270/06 Subsidies to digital decoders with API — Italy (OJ C 80, 13.4.2007, p. 3); N107/07 Subsidies to IdTV — Italy (OJ C 246, 20.10.2007); C34/06 Introduction of digital terrestrial television (DVB-T) in Nordrhein-Westfalen (OJ L 236, 3.9.2008, p. 10); SA.28685 Captación de Televisión Digital en Cantabria — Spain (OJ C 119, 24.4.2012).

(79)  See paragraph 132 of the Commission's decision C25/04, Introduction of digital terrestrial television (DVB-T) in Berlin-Brandenburg — Germany (OJ L 200, 22.7.2006, p. 14).

(80)  COM(2002) 263 final, eEurope 2005: An information society for all.

(81)  COM(2003) 541 final, Communication on the transition from analogue to digital broadcasting (from digital ‘switchover’ to analogue ‘switchoff’), and COM(2005)204 final, Communication from the Commission on accelerating the transition from analogue to digital broadcasting.

(82)  COM(2005)229 final, 1 June 2005.

(83)  See above, footnote 77.

(84)  Cases T-8/06 — FAB Fernsehen aus Berlin GmbH v Commission, Judgment of 6 October 2009, [2009] ECR II-00196; C-544/09P — Germany v Commission, Judgment of 15 September 2011, not yet published; T-177/07, Mediaset SpA v Commission, Judgment of 15 June 2010, [2010] ECR II-02341; and C-403/10 P — Mediaset SpA v Commission, Judgment of 28 July 2011.

(85)  See footnote 12.

(86)  Such a study served as a justification for a choice of a particular technology in a broadband case. See Commission Decision N222/06 — Aid to bridge the digital divide in Sardinia (OJ C 68, 24.3.2007, p. 6).

(87)  The UK chose DTT for the provision of local TV on the basis of an ex ante study carried out by its regulator OFCOM and an ex ante consultation of market players. On this basis, the Commission did not insist on carrying out a technologically neutral tender. SA.33980 (2012/N) — Local TV in the UK, http://ec.europa.eu/competition/state_aid/cases/244689/244689_1425664_116_2.pdf.

(88)  Although in the technologically neutral initial tender of Cantabria three consortia put in a bid which was built on a satellite solution (Castilla-La-Mancha Telecom, Telefónica and Astra), none of these companies — or any other non-DTT platform operator — participated again in any of the subsequent tenders.

(89)  Hispasat, co- owned by Abertis and by the Spanish government, provides services in certain Autonomous Communities in parts of Area II. For example, in the Canary Islands, 16 villages located in Area II receive free-to-air television via satellite. In Castilla y Leon the same applies to around 9000 people. As Abertis is in charge of the control of the satellite receivers in all terrestrial sites and it does not allow other satellite operators to interconnect with such receivers, only Hispasat can offer such DTT transport services to feed terrestrial towers.

(90)  E.g. France, UK, Italy, Slovakia.

(91)  As further underlined by the judgement of the national court. See above, footnote on p. 7.

(92)  See footnote 13.

(93)  http://stakeholders.ofcom.org.uk/consultations/second-coexistence-consultation/.

(94)  According to Astra's estimates, the total number of local channels currently broadcasted is limited to 415 channels.

(95)  The satellite signal can be broadcast over the entire Spanish territory. However, in the case of the terrestrial platform, geographical extension requires the installation of additional repeaters and/or relay towers.

(96)  Cases T-195/01 and T-207/01, Gibraltar [2002] ECR II-2309, paragraphs 109-111.

(97)  With the exception of Murcia, which notified the measure after it had already been implemented.

(98)  Case C-70/72 Commission v Germany [1973] ECR 00813, point 13.

(99)  Joined Cases C-278/92, C-279/92 and C-280/92 Spain v Commission [1994] ECR I-4103, paragraph 75.

(100)  Case C-75/97 Belgium v Commission [1999] ECR I-3705, paragraphs 64-65.

(101)  OJ L 83, 27.3.1999, p. 1.

(102)  Supply, installation and start-up of the necessary equipment to provide the service of transport and broadcasting of DTT, for 6 national multiplexes (state global network, single frequency network) and an autonomous community multiplex, in locations in Extremadura under Phase II of the National Plan for Transition to DTT. Case SU-28/2009.

(103)  Supply, installation and start-up of the necessary equipment to provide the service of transport and broadcasting of DTT for 6 national multiplexes (Red Global Estatal (state global network) Red de Frecuencia Unica (single frequency network)) and an autonomous community multiplex (hereinafter RGE, SFN and AUT) in locations under Phase II of the National Plan for Transition to DTT. It includes the following activities: (a) design of the technical broadcasting and distribution networks that will support the service; (b) planning of supply of the necessary equipment for the proposed network; (c) roll-out of the network, including the installation and start-up of the necessary equipment and infrastructure. This supply will be made on a turnkey basis.

(104)  Page 2, paragraph 5 — ‘The main objective to be pursued is to extend and guarantee a percentage as close as possible to 100 % of coverage of Digital Terrestrial Television (DTT) to all citizens in the districts coming under Extremadura Phase II. No limitations are established as regards the network architecture or the technology/ies to be used provided the minimum requirements established are met.’

Page 10 paragraph 7 — Bidders should include in their bids the architecture of the proposed distribution network, which must be consistent with the broadcasting network. For each multiplex, the best solution for this service is sought, always subject to criteria of economic and technological optimisation.

(105)  Other tenders identified by the Commission as falling into the same category are tender 2009/000127 organised by the Junta de Andalucía and tender S-004/10/10 organised by Junta de Extremadura.

(106)  Technical specifications for the contract for ‘Drafting of projects, supply, installation and start-up of the necessary infrastructure and communications for extension of the Digital Terrestrial Television (DTT) signal coverage in the Madrid autonomous community.’ To be concluded by the ordinary simplified procedure on a multi-criteria basis. Case ECON/000572/2008.

(107)  Page 3, paragraph 3 — ‘(…) supply, installation and start-up of the necessary infrastructure and communications for extension of the Digital Terrestrial Television (DTT) signal coverage in the Madrid autonomous community, including all the work relating to performance of the related technical projects, measurement, maintenance, operation and management of the installations making up the service for the infrastructure deployed, and work necessary to disseminate institutional information to promote Digital Terrestrial Television.’

Page 9, paragraph 8 — ‘The broadcasting network proposed to provide digital terrestrial television coverage, based on the timetable for switch-off and the budget allocation available, will be specified.’

(108)  Page 4, paragraphs 2 and 8 — ‘The main objective to be pursued through the execution of the work detailed below is to extend and guarantee a percentage as close as possible to 100 % of coverage of Digital Terrestrial Television (DTT) to all citizens in the autonomous community of Madrid. To facilitate DTT reception in the coverage areas, it is advisable for the broadcasting centres to have sites compatible with the orientation of the existing satellite dishes in buildings, so that citizens do not have to install new dishes or reorientate the existing dishes. Bidders should therefore state how they will address this issue in the proposed solution.’ Page 12, paragraph 4 — ‘The micro broadcaster/micro transmitter will be designed in accordance with the following specifications’.

(109)  Other tenders identified by the Commission as falling into the same category are, amongst others, two tenders organised by Provilsa in March 2009 won by Retevision SA and Telvent Energía S.A.; tender SE/CTTI/06/08 organised by CTTI and won by Abertis S.A., tender Contratación del suministro de la fase II y III para la extensión de la TDT en Aragón organised in June 2009 by Aragón Telecom and won by Abertis.

(110)  OJ L 142, 14.5.1998, p. 1.

(111)  OJ L 140, 30.4.2004, p. 1.


ANNEX

Public spending in Area II on DTT deployment, by Spanish regions (Autonomous Communities, except Castilla La Mancha)

BUDGET (in EUR)

Region (Autonomous Community)

MYTIC direct subsidies (1)

MYTIC soft-loans (1)

Regional funds (1)

Local Funds (1)

Recurrent cost (2009-2011) (1)

Total funds

Total amount of organised tenders (2)

Total public spending (3)

ANDALUCIA

4 668 500,00

1 220 690,00

8 712 873,00

491 203,00

2 250 479,00

15 093 266,00

3 678 242,17

15 093 266,00

ARAGON

5 900 000,00

8 700 000,00

5 400 000,00

5 000 000,00

20 000 000,00

16 281 754,30

20 000 000,00

ASTURIAS

13 430 787,00

353 535,00

2 129 698,00

13 784 322,00

13 784 322,00

13 784 322,00

BALEARES

913 034,00

763 034,00

913 034,00

3 294 429,02

3 294 429,02

CANARIAS

2 905 766,26

1 130 595,85

1 792 402,57

5 828 764,68

5 284 331,67

5 828 764,68

CANTABRIA

3 229 500,00

3 851 949,80

622 449,00

860 850,00

7 703 898,80

6 355 613,68

7 703 898,80

CASTILLA Y LEON

13 830 850,00

20 316 585,73

10 324 906,71

6 716 000,00

37 756 342,44

37 756 342,44

37 756 342,44

CATALUÑA

13 838 368,00

26 024 223,00

NO DATA

NO DATA

39 862 591,00

52 316 794,34

52 316 794,34

CEUTA

54 000,00

91 786,17

10 000,00

NO DATA

155 786,17

50 000,00

155 786,17

EXTREMADURA

2 238 250,00

7 800 000,00

18 718,00

10 056 968,00

9 549 379,74

10 056 968,00

GALICIA

6 083 300,00

5 000 000,00

6 003 336,00

873 000,00

17 086 636,00

12 644 112,98

17 086 636,00

MADRID

554 200,00

3 068 444,00

3 622 644,00

3 622 744,00

3 622 644,00

MELILLA

254 000,00

NO DATA

2 000,00

NO DATA

NO DATA

256 000,00

256 000,00

MURCIA

135 750,00

2 478 700,00

40 188,00

212 371,00

2 654 638,00

2 788 407,32

2 788 407,32

NAVARRA

316 850,00

6 675 028,00

4 256 508,39

6 991 878,00

6 991 878,00

6 991 878,00

LA RIOJA

1 229 350,00

3 000 000,00

3 737 425,00

944 000,00

7 966 775,00

5 766 775,00

7 966 775,00

PAIS VASCO

2 487 800,00

9 802 703,00

2 425 000,00

1 508 308,00

14 715 503,00

179 000,00

14 715 503,00

VALENCIA

1 822 250,00

13 384 248,94

818 280,30

586 234,17

679 500,00

16 611 013,41

15 412 499,00

16 611 013,41


Information about the amounts of aid received, to be recovered and already recovered

Identity of the beneficiary

Total amount of aid received under the scheme (4)

Total amount of aid to be recovered (4)

(Principal)

Total amount already reimbursed (4)

Principal

Recovery interest

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


(1)  Amounts reported by the Spanish central and regional authorities during the investigation.

(2)  Sum of funds transferred to the successful bidders following the tenders submitted to the Commission.

(3)  Only data coming from four Regions (in green) allow to define precisely the amount of State aid, as both (i) the declared sum of funds granted by the authorities and (ii) the total of the fund transferred following the tenders submitted to the Commission coincide. Due to the difficulty to obtain precise information from other Regions, it is considered that the amount of State aid granted in a particular region is the higher of the two declared amounts: (i) total of the funds granted by the authorities or (ii) the total of the funds transferred following the tenders submitted to the Commission.

(4)  Million of national currency


ACTS ADOPTED BY BODIES CREATED BY INTERNATIONAL AGREEMENTS

23.7.2014   

EN

Official Journal of the European Union

L 217/88


DECISION No 2 OF THE JOINT COMMITTEE OF THE REGIONAL CONVENTION ON PAN-EURO-MEDITERRANEAN PREFERENTIAL RULES OF ORIGIN

of 21 May 2014

as regards the request of the Republic of Moldova to become a Contracting Party to the Regional Convention on pan-Euro-Mediterranean preferential rules of origin

(2014/490/EU)

THE JOINT COMMITTEE,

Having regard to the Regional Convention on pan-Euro-Mediterranean preferential rules of origin (1),

Whereas:

(1)

Article 5(1) of the Regional Convention on pan-Euro-Mediterranean preferential rules of origin (‘the Convention’) provides that a third party may become a Contracting Party to the Convention provided that the candidate country or territory has a free trade agreement in force, providing for preferential rules of origin, with at least one of the Contracting Parties.

(2)

The Republic of Moldova submitted a written request for accession to the Convention to the depositary of the Convention on 17 July 2013.

(3)

The Republic of Moldova is a member of the Central European Free Trade Agreement between Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, the Republic of Moldova, Montenegro, Serbia and Kosovo (2). Consequently, the Republic of Moldova has a free trade agreement in force with six Contracting Parties to the Convention and complies with the condition set out in Article 5(1) of the Convention to become a Contracting Party.

(4)

Article 4(3)(b) of the Convention provides that the Joint Committee shall adopt by decision invitations to third parties to accede to the Convention.

(5)

The Swiss Confederation and the Principality of Liechtenstein have informed the secretariat of the Joint Committee that they have not been able to complete their internal procedures prior to the meeting of 21 May and that, in accordance with Article 4(4) of the Convention, their acceptance of the decision at that meeting is subject to the completion of these procedures,

HAS ADOPTED THIS DECISION:

Article 1

The Republic of Moldova shall be invited to accede to the Regional Convention on pan-Euro-Mediterranean preferential rules of origin.

Article 2

This Decision shall enter into force on 1 September 2014.

Done at Brussels, 21 May 2014.

For the Joint Committee

The Chair

P.-J. LARRIEU


(1)  OJ L 54, 26.2.2013, p. 4.

(2)  This designation is without prejudice to positions on status, and is in line with UNSCR 1244(1999) and the ICJ Opinion on the Kosovo Declaration of Independence.