24.9.2015   

EN

Official Journal of the European Union

L 248/1

(1)

Council Regulation (EC) No 994/98 (2) has been substantially amended (3). In the interests of clarity and rationality that Regulation should be codified.

(2)

Under the Treaty on the Functioning of the European Union (TFEU), the assessment of compatibility of aid with the internalmarket essentially rests with the Commission.

(3)

The proper functioning of the internal market requires strict and efficient application of the rules of competition with regard to State aid.

(4)

The Commission should be enabled to declare by means of regulations, in areas where the Commission has sufficient experience to define general compatibility criteria, that certain specified categories of aid are compatible with the internal market pursuant to one or more of the provisions of Article 107(2) and (3) TFEU and are exempted from the procedure provided for in Article 108(3) thereof.

(5)

Block exemption regulations ensure transparency and legal certainty. They can be directly applied by national courts, without prejudice to Article 4(3) of the Treaty on European Union and to Article 267 TFEU.

(6)

State aid is an objective notion defined in Article 107(1) TFEU. The power of the Commission to adopt block exemptions as provided for in this Regulation only applies to measures that fulfil all the criteria of Article 107(1) TFEU and therefore constitute State aid. Inclusion of a certain category of aid in this Regulation or in an exemption regulation does not predetermine the qualification of a measure as State aid within the meaning of Article 107(1) TFEU.

(7)

The Commission should be enabled to declare that, under certain conditions, aid to small and medium-sized enterprises, aid in favour of research, development and innovation, aid in favour of environmental protection, aid in favour of employment and training, and aid that complies with the map approved by the Commission for each Member State for the grant of regional aid is compatible with the internal market and not subject to the notification requirement.

(8)

Innovation has become a Union policy priority in the context of ‘Innovation Union’, one of the Europe 2020 flagship initiatives. Moreover, many aid measures for innovation are relatively small and create no significant distortions of competition.

(9)

In the culture and heritage conservation sector, a number of measures taken by Member States might not constitute aid because they do not fulfil all the criteria of Article 107(1)TFEU, for example because the beneficiary does not carry out an economic activity or because there is no effect on trade between Member States. However, to the extent measures in the field of culture and heritage conservation do constitute State aid within the meaning of Article 107(1) TFEU, the Commission should be enabled to declare that, under certain conditions, that aid is compatible with the internal market and not subject to the notification requirement in Article 108(3) TFEU. Small culture, creation and heritage conservation projects do not typically give rise to any significant distortion, and recent cases have shown that such aid has limited effects on trade.

(10)

Exemptions in the culture and heritage conservation sector could be designed on the basis of the Commission's experience as set out in guidelines, such as for cinematographic and audiovisual works, or developed case by case. When drafting such block exemptions, the Commission should take into account that they should only cover measures constituting State aid, that they should in principle focus on measures that contribute to the objectives of ‘EU State aid modernisation’, and that only aid in respect of which the Commission has already substantial experience is block-exempted. Furthermore, the primary competence of the Member States in the area of culture, the special protection enjoyed by cultural diversity under Article 167(1) TFEU and the special nature of culture should be taken into account.

(11)

As regards State aid measures to make good the damage caused by natural disasters, as well as State aid measures to make good the damage caused by certain adverse weather conditions in fisheries, the amounts granted in those areas are usually limited, and clear compatibility conditions can be defined. This Regulation should enable the Commission to exempt such aid from the notification requirement. In the Commission's experience, such aid does not give rise to any significant distortion, and clear compatibility conditions can be defined on the basis of the experience acquired.

(12)

In accordance with Article 42 TFEU, State aid rules do not apply under certain conditions to certain aid measures in favour of agriculture products listed in Annex I to the TFEU. Article 42 does not apply to forestry or to products not listed in that Annex. The Commission should be able to exempt certain types of aid in favour of forestry, including aid contained in the rural development programmes and also that in favour of promoting and advertising food sector products not listed in Annex I to the TFEU, where, according to the Commission's experience, the distortions of competition are limited and clear compatibility conditions can be defined.

(13)

According to Article 7 of Council Regulation (EC) No 1198/2006 (4), Articles 107, 108 and 109 TFEU apply to aid granted by the Member States to enterprises in the fisheries sector, except for payments made by Member States pursuant to, and in conformity with, Regulation (EC) No 1198/2006. Additional State aid for the conservation of marine and freshwater biological resources usually has limited effects on trade between Member States, contributes to the Union's objectives in the field of maritime and fisheries policy, and does not create serious distortions of competition. The amounts granted are usually limited and clear compatibility conditions can be defined.

(14)

In the sports sector, in particular in the field of amateur sport, a number of measures taken by Member States might not constitute aid because they do not fulfil all the criteria of Article 107(1) TFEU, for example because the beneficiary does not carry out an economic activity, or because there is no effect on trade between Member States. However, to the extent that measures in the field of sports do constitute State aid within the meaning of Article 107(1) TFEU, the Commission should be enabled to declare that, under certain conditions, that aid is compatible with the internal market and not subject to the notification requirement. State aid measures for sport, in particular those in the field of amateur sport or those that are small-scale, often have limited effects on trade between Member States and do not create serious distortions of competition. The amounts granted are typically also limited. Clear compatibility conditions can be defined on the basis of the experience acquired so as to ensure that aid to sports does not give rise to any significant distortion.

(15)

In relation to aid concerning air and maritime transport, in the Commission's experience, aid having a social character for the transport of residents of remote regions such as outermost regions and islands, including single region island Member States and sparsely populated areas, does not give rise to any significant distortion, provided that it is granted without discrimination related to the identity of the carrier. Moreover, clear compatibility conditions can be defined.

(16)

In the field of aid to broadband infrastructure, the Commission has in recent years acquired vast experience and has devised guidelines (5). In the Commission's experience, aid for certain types of broadband infrastructure does not give rise to any significant distortion and could benefit from a block exemption, provided that certain compatibility conditions are met and that the infrastructure is deployed in ‘white areas’, being areas where there is no infrastructure of the same category (either broadband or very high-speed next-generation access, ‘NGA’) and where none is likely to be developed in the near future, as outlined in the criteria developed in the guidelines. This is true of aid covering the provision of basic broadband, as well as of aid for small individual measures covering NGA networks, and of aid to broadband-related civil engineering works and passive broadband infrastructure.

(17)

As regards infrastructure, a number of measures taken by Member States might not constitute aid because they do not fulfil all the criteria of Article 107(1) TFEU, for example because the beneficiary does not carry out an economic activity, because there is no effect on trade between Member States, or because the measure consists of compensation for a service of general economic interest which fulfils all the criteria of the Altmark case-law (6). However, to the extent that the financing of infrastructure constitutes State aid within the meaning of Article 107(1) TFEU, the Commission should be enabled to declare that, under certain conditions, that aid is compatible with the internal market and not subject to the notification requirement. With regard to infrastructure, small amounts of aid for infrastructure projects can be an efficient way of supporting the Union's objectives, to the extent that the aid minimises costs and the potential distortion of competition is limited. The Commission should therefore be able to exempt State aid for infrastructure projects that are in support of the objectives mentioned in this Regulation and in support of other objectives of common interest, in particular the Europe 2020 objectives (7). This could include support for projects involving multi-sectoral networks or facilities where relatively small amounts of aid are necessary. However, block exemptions can only be granted for infrastructure projects where the Commission has enough experience to define clear and strict compatibility criteria, ensuring that the risk of potential distortion of competition is limited and that large amounts of aid remain subject to notification pursuant to Article 108(3) TFEU.

(18)

It is appropriate that the Commission, when it adopts regulations exempting categories of aid from the obligation to notify provided for in Article 108(3) TFEU, specifies the purpose of the aid, the categories of beneficiaries and thresholds limiting the exempted aid, the conditions governing the cumulation of aid and the conditions of monitoring, in order to ensure the compatibility with the internal market of aid covered by this Regulation.

(19)

Thresholds for each category of aid in respect of which the Commission adopts a block exemption regulation can be expressed in terms of aid intensities in relation to a set of eligible costs, or in terms of maximum aid amounts. Moreover, the Commission should also be enabled to issue block exemptions for certain types of measures involving State aid which, because of the specific way in which they are designed, cannot be expressed precisely in terms of the aid intensities or maximum amounts of aid, such as financial engineering instruments or certain forms of measures aimed to promote risk capital investments. Such complex measures may involve aid at different levels: direct beneficiaries, intermediate beneficiaries and indirect beneficiaries. Given the increasing importance of such measures and their contribution to the Union's objectives, it should be possible to exempt them. It should therefore be possible, in the case of such measures, to define the thresholds for a particular award of aid in terms of the maximum level of state support in or related to that measure. The maximum level of state support may comprise an element of support, which may not be State aid, provided that the measure includes at least some elements that contain State aid within the meaning of Article 107(1) TFEU and which elements are not marginal.

(20)

It may be useful to set thresholds or other appropriate conditions requiring the notification of awards of aid in order to allow the Commission to examine individually the effect of certain aid on competition and trade between Member States and its compatibility with the internal market.

(21)

It is appropriate to enable the Commission, when it adopts regulations exempting certain categories of aid from the obligation to notify in Article 108(3) TFEU, to attach further detailed conditions in order to ensure the compatibility with the internal market of aid covered by this Regulation.

(22)

The Commission, having regard to the development and the functioning of the internal market, should be enabled to establish by means of a regulation that certain aid does not fullfil all the criteria of Article 107(1) TFEU and is therefore exempted from the notification procedure laid down in Article 108(3) TFEU, provided that aid granted to the same undertaking over a given period of time does not exceed a certain fixed amount.

(23)

In accordance with Article 108(1) TFEU the Commission is under an obligation, in cooperation with Member States, to keep under constant review all systems of existing aid. For this purpose and in order to ensure the largest possible degree of transparency and adequate control it is desirable that the Commission ensures the establishment of a reliable system of recording and storing information about the application of the regulations it adopts, to which all Member States have access, and that it receives all necessary information from the Member States on the implementation of aid exempted from notification to fulfil this obligation, which may be examined and evaluated with the Member States within the Advisory Committee on State aid. For this purpose it is also desirable that the Commission may require such information to be supplied as is necessary to ensure the efficiency of such review.

(24)

Member States should provide summaries of information concerning aid implemented by them which is covered by an exemption regulation. The publication of those summaries is necessary to ensure the transparency of the measures adopted by the Member States. With the growth of electronic communication media, publication of the summaries on the website of the Commission is a fast and effective method ensuring transparency for the benefit of interested parties. Therefore, those summaries should be published on the website of the Commission.

(25)

The control of the granting of aid involves factual, legal and economic issues of a very complex nature and great variety in a constantly evolving environment. The Commission should therefore regularly review the categories of aid which should be exempted from notification. The Commission should be able to repeal or amend regulations it has adopted pursuant to this Regulation where circumstances have changed with respect to any important element which constituted grounds for their adoption or where the progressive development or the functioning of the internal market so requires.

(26)

The Commission, in close and constant liaison with the Member States, should be able to define precisely the scope of those regulations and the conditions attached to them. In order to provide for cooperation between the Commission and the competent authorities of the Member States, it is appropriate that the Advisory Committee on State aid be consulted before the Commission adopts regulations pursuant to this Regulation.

(27)

Draft regulations and other documents to be examined by the Advisory Committee on State aid in accordance with this Regulation should be published on the website of the Commission to ensure transparency.

(28)

The Advisory Committee on State aid should be consulted before publication of a draft regulation. However, in the interest of transparency, the draft regulation should be published on the website of the Commission at the same time as the Commission consults the Advisory Committee for the first time,

(a)

aid in favour of:

(b)

aid that complies with the map approved by the Commission for each Member State for the grant of regional aid.

(a)

the purpose of the aid;

(b)

the categories of beneficiaries;

(c)

thresholds expressed in terms of aid intensities in relation to a set of eligible costs or in terms of maximum aid amounts or, for certain types of aid where it may be difficult to identify the aid intensity or amount of aid precisely, in particular financial engineering instruments or risk capital investments or those of a similar nature, in terms of the maximum level of state support in or related to that measure, without prejudice to the qualification of the measures concerned in the light of Article 107(1) TFEU;

(d)

the conditions governing the cumulation of aid;

(e)

the conditions of monitoring as specified in Article 3.

(a)

set thresholds or other conditions for the notification of awards of individual aid;

(b)

exclude certain sectors from their scope;

(c)

attach further conditions for the compatibility of aid exempted under such regulations.

(a)

at the same time as publishing any draft regulation in accordance with Article 6;

(b)

before adopting any regulation.

24.9.2015   

EN

Official Journal of the European Union

L 248/9

(1)

Council Regulation (EC) No 659/1999 (2) has been substantially amended several times (3). In the interests of clarity and rationality, that Regulation should be codified.

(2)

Without prejudice to special procedural rules laid down in regulations for certain sectors, this Regulation should apply to aid in all sectors. For the purpose of applying Articles 93 and 107 of the Treaty on the Functioning of the European Union (TFEU), the Commission has specific competence under Article 108 thereof to decide on the compatibility of State aid with the internal market when reviewing existing aid, when taking decisions on new or altered aid and when taking action regarding non-compliance with its decisions or with the requirement as to notification.

(3)

In the context of a modernised system of State aid rules, to contribute both to the implementation of the Europe 2020 strategy for growth and to budgetary consolidation, Article 107of the TFEU should be applied effectively and uniformly throughout the Union. Regulation (EC) No 659/1999 consolidated and reinforced the Commission's previous practice of increasing legal certainty and supporting the development of State aid policy in a transparent environment.

(4)

In order to ensure legal certainty, it is appropriate that the circumstances under which aid is to be considered as existing aid be defined. The completion and enhancement of the internal market is a gradual process, reflected in the permanent development of State aid policy. Following those developments, certain measures, which at the moment they were put into effect did not constitute State aid, may since have become aid.

(5)

In accordance with Article 108(3) TFEU, any plans to grant new aid are to be notified to the Commission and should not be put into effect before the Commission has authorised it.

(6)

In accordance with Article 4(3) of the Treaty on European Union (TEU), Member States are under an obligation to cooperate with the Commission and to provide it with all information required to allow the Commission to carry out its duties under this Regulation.

(7)

The period within which the Commission is to conclude the preliminary examination of notified aid should be set at 2 months from the receipt of a complete notification or from the receipt of a duly reasoned statement of the Member State concerned that it considers the notification to be complete because the additional information requested by the Commission is not available or has already been provided. For reasons of legal certainty, that examination should be brought to an end by a decision.

(8)

In all cases where, as a result of the preliminary examination, the Commission cannot find that the aid is compatible with the internal market, the formal investigation procedure should be opened in order to enable the Commission to gather all the information it needs to assess the compatibility of the aid and to allow the interested parties to submit their comments. The rights of the interested parties can best be safeguarded within the framework of the formal investigation procedure provided for in Article 108(2) TFEU.

(9)

In order to assess the compatibility with the internal market of any notified or unlawful State aid for which the Commission has exclusive competence under Article 108 TFEU, it is appropriate to ensure that the Commission has the power, for the purposes of enforcing the State aid rules, to request all necessary market information from any Member State, undertaking or association of undertakings whenever it has doubts as to the compatibility of the measure concerned with the Union rules, and has therefore initiated the formal investigation procedure. In particular, the Commission should use this power in cases in which a complex substantive assessment appears necessary. In deciding whether to use this power, the Commission should take due account of the duration of the preliminary examination.

(10)

For the purpose of assessing the compatibility of an aid measure after the initiation of the formal investigation procedure, in particular as regards technically complex cases subject to substantive assessment, the Commission should be able, by simple request or by decision, to require any Member State, undertaking or association of undertakings to provide all market information necessary for completing its assessment, if the information provided by the Member State concerned during the course of the preliminary examination is not sufficient, taking due account of the principle of proportionality, in particular for small and medium-sized enterprises.

(11)

In the light of the special relationship between aid beneficiaries and the Member State concerned, the Commission should be able to request information from an aid beneficiary only in agreement with the Member State concerned. The provision of information by the beneficiary of the aid measure in question does not constitute a legal basis for bilateral negotiations between the Commission and the beneficiary in question.

(12)

The Commission should select the addressees of information requests on the basis of objective criteria appropriate to each case, while ensuring that, when the request is addressed to a sample of undertakings or associations thereof, the sample of respondents is representative within each category. The information sought should consist, in particular, of factual company and market data and facts-based analysis of the functioning of the market.

(13)

The Commission, as the initiator of the procedure, should be responsible for verifying both the information transmission by the Member States, undertakings or associations of undertakings, and the purported confidentiality of the information to be disclosed.

(14)

The Commission should be able to enforce compliance with the requests for information it addresses to any undertaking or association of undertakings, as appropriate, by means of proportionate fines and periodic penalty payments. In setting the amounts of fines and periodic penalty payments, the Commission should take due account of the principles of proportionality and appropriateness, in particular as regards small and medium-sized enterprises. The rights of the parties requested to provide information should be safeguarded by giving them the opportunity to make known their views before any decision imposing fines or periodic penalty payments is taken. The Court of Justice of the European Union should have unlimited jurisdiction with regard to such fines and periodic penalties pursuant to Article 261 TFEU.

(15)

Taking due account of the principles of proportionality and appropriateness, the Commission should be able to reduce the periodic penalty payments or waive them entirely, when addressees of requests provide the information requested, albeit after the expiry of the deadline.

(16)

Fines and periodic penalty payments are not applicable to Member States, since they are under a duty to cooperate sincerely with the Commission in accordance with Article 4(3) TEU, and to provide the Commission with all information required to allow it to carry out its duties under this Regulation.

(17)

After having considered the comments submitted by the interested parties, the Commission should conclude its examination by means of a final decision as soon as the doubts have been removed. It is appropriate, should this examination not be concluded after a period of 18 months from the opening of the procedure, that the Member State concerned has the opportunity to request a decision, which the Commission should take within 2 months.

(18)

In order to safeguard the rights of defence of the Member State concerned, it should be provided with copies of the requests for information sent to other Member States, undertakings or associations of undertakings, and be able to submit its observations on the comments received. It should also be informed of the names of the undertakings and the associations of undertakings requested, to the extent that these entities have not demonstrated a legitimate interest in the protection of their identity.

(19)

The Commission should take due account of the legitimate interests of undertakings in the protection of their business secrets. It should not be able to use confidential information provided by respondents, which cannot be aggregated or otherwise be anonymised, in any decision unless it has previously obtained their agreement to disclose that information to the Member State concerned.

(20)

In cases where information marked as confidential does not seem to be covered by obligations of professional secrecy, it is appropriate to have a mechanism in place according to which the Commission can decide the extent to which such information can be disclosed. Any such decision to reject a claim that information is confidential should indicate a period at the end of which the information will be disclosed, so that the respondent can make use of any judicial protection available to it, including any interim measure.

(21)

In order to ensure that the State aid rules are applied correctly and effectively, the Commission should have the opportunity of revoking a decision which was based on incorrect information.

(22)

In order to ensure compliance with Article 108 TFEU, and in particular with the notification obligation and the standstill clause in Article 108(3), the Commission should examine all cases of unlawful aid. In the interests of transparency and legal certainty, the procedures to be followed in such cases should be laid down. When a Member State has not respected the notification obligation or the standstill clause, the Commission should not be bound by time limits.

(23)

The Commission should be able, on its own initiative, to examine information on unlawful aid, from whatever source, in order to ensure compliance with Article 108 TFEU, and in particular with the notification obligation and standstill clause laid down in Article 108(3) TFEU, and to assess the compatibility of an aid with the internal market.

(24)

In cases of unlawful aid, the Commission should have the right to obtain all necessary information enabling it to take a decision and to restore immediately, where appropriate, undistorted competition. It is therefore appropriate to enable the Commission to adopt interim measures addressed to the Member State concerned. The interim measures may take the form of information injunctions, suspension injunctions and recovery injunctions. The Commission should be enabled, in the event of non-compliance with an information injunction, to decide on the basis of the information available and, in the event of non-compliance with suspension and recovery injunctions, to refer the matter to the Court of Justice directly, in accordance with the second subparagraph of Article 108(2) TFEU.

(25)

In cases of unlawful aid which is not compatible with the internal market, effective competition should be restored. For this purpose it is necessary that the aid, including interest, be recovered without delay. It is appropriate that recovery be effected in accordance with the procedures of national law. The application of those procedures should not, by preventing the immediate and effective execution of the Commission decision, impede the restoration of effective competition. To achieve this result, Member States should take all necessary measures ensuring the effectiveness of the Commission decision.

(26)

For reasons of legal certainty it is appropriate to provide for a period of limitation of 10 years with regard to unlawful aid, after the expiry of which no recovery can be ordered.

(27)

For reasons of legal certainty, it is appropriate to provide for limitation periods for the imposition and enforcement of fines and periodic penalty payments.

(28)

Misuse of aid may have effects on the functioning of the internal market which are similar to those of unlawful aid and should thus be treated according to similar procedures. Unlike unlawful aid, aid which has possibly been misused is aid which has been previously approved by the Commission. Therefore the Commission should not be allowed to use a recovery injunction with regard to misuse of aid.

(29)

In accordance with Article 108(1) TFEU, the Commission is under an obligation, in cooperation with Member States, to keep under constant review all systems of existing aid. In the interests of transparency and legal certainty, it is appropriate to specify the scope of cooperation under that Article.

(30)

In order to ensure compatibility of existing aid schemes with the internal market and in accordance with Article 108(1) TFEU, the Commission should propose appropriate measures where an existing aid scheme is not, or is no longer, compatible with the internal market and should initiate the procedure provided for in Article 108(2) TFEU if the Member State concerned declines to implement the proposed measures.

(31)

It is appropriate to set out all the possibilities which third parties have to defend their interests in State aid procedures.

(32)

Complaints are an essential source of information for detecting infringements of the Union rules on State aid. To ensure the quality of the complaints submitted to the Commission, and at the same time transparency and legal certainty, it is appropriate to lay down the conditions that a complaint should fulfill in order to put the Commission in possession of information regarding alleged unlawful aid and set in motion the preliminary examination. Submissions not meeting those conditions should be treated as general market information, and should not necessarily lead to ex officio investigations.

(33)

Complainants should be required to demonstrate that they are interested parties within the meaning of Article 108(2) TFEU and of Article 1(h) of this Regulation. They should also be required to provide a certain amount of information in a form that the Commission should be empowered to set out in an implementing provision. In order not to discourage prospective complainants, that implementing provision should take into account that the demands on interested parties for lodging a complaint should not be burdensome.

(34)

In order to ensure that the Commission addresses similar issues in a consistent manner across the internal market, it is appropriate to provide for a specific legal basis to launch investigations into sectors of the economy or into certain aid instruments across several Member States. For reasons of proportionality and in the light of the high administrative burden entailed by such investigations, sector inquiries should be carried out only when the information available substantiates a reasonable suspicion that State aid measures in a particular sector could materially restrict or distort competition within the internal market in several Member States, or that existing aid measures in a particular sector in several Member States are not, or are no longer, compatible with the internal market. Such inquiries would enable the Commission to deal in an efficient and transparent way with horizontal State aid issues and to obtain an ex ante overview of the sector concerned.

(35)

In order to allow the Commission to monitor effectively compliance with Commission decisions and to facilitate cooperation between the Commission and Member States for the purpose of the constant review of all existing aid schemes in the Member States in accordance with Article 108(1) TFEU, it is necessary that a general reporting obligation with regard to all existing aid schemes be laid down.

(36)

Where the Commission has serious doubts as to whether its decisions are being complied with, it should have at its disposal additional instruments allowing it to obtain the information necessary to verify that its decisions are being effectively complied with. For this purpose on-site monitoring visits are an appropriate and useful instrument, in particular for cases where aid might have been misused. Therefore the Commission should be empowered to undertake on-site monitoring visits and should obtain the cooperation of the competent authorities of the Member States where an undertaking opposes such a visit.

(37)

Consistency in the application of the State aid rules requires that arrangements be established for cooperation between the courts of the Member States and the Commission. Such cooperation is relevant for all courts of the Member States that apply Article 107(1) and Article 108 TFEU. In particular, national courts should be able to ask the Commission for information or for its opinion on points concerning the application of State aid rules. The Commission should also be able to submit written or oral observations to courts which are called upon to apply Article 107(1) or Article 108 TFEU. When assisting national courts in this respect, the Commission should act in accordance with its duty to defend the public interest.

(38)

Those observations and opinions of the Commission should be without prejudice to Article 267 TFEU and not legally bind the national courts. They should be submitted within the framework of national procedural rules and practices including those safeguarding the rights of the parties, in full respect of the independence of the national courts. Observations submitted by the Commission on its own initiative should be limited to cases that are important for the coherent application of Article 107(1) or Article 108 TFEU, in particular to cases which are significant for the enforcement or the further development of Union State aid case law.

(39)

In the interests of transparency and legal certainty, it is appropriate to give public information on Commission decisions while, at the same time, maintaining the principle that decisions in State aid cases are addressed to the Member State concerned. It is therefore appropriate to publish all decisions which might affect the interests of interested parties either in full or in a summary form or to make copies of such decisions available to interested parties, where they have not been published or where they have not been published in full.

(40)

The Commission, when publishing its decisions, should respect the rules on professional secrecy, including the protection of all confidential information and personal data, in accordance with Article 339 TFEU.

(41)

The Commission, in close liaison with the Advisory Committee on State aid, should be able to adopt implementing provisions laying down detailed rules concerning the procedures under this Regulation,

(a)

‘aid’ means any measure fulfilling all the criteria laid down in Article 107(1) TFEU;

(b)

‘existing aid’ means:

(c)

‘new aid’ means all aid, that is to say, aid schemes and individual aid, which is not existing aid, including alterations to existing aid;

(d)

‘aid scheme’ means any act on the basis of which, without further implementing measures being required, individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid which is not linked to a specific project may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount;

(e)

‘individual aid’ means aid that is not awarded on the basis of an aid scheme and notifiable awards of aid on the basis of an aid scheme;

(f)

‘unlawful aid’ means new aid put into effect in contravention of Article 108(3) TFEU;

(g)

‘misuse of aid’ means aid used by the beneficiary in contravention of a decision taken pursuant to Article 4(3) or Article 7(3) or (4) of Regulation (EC) No 659/1999 or Article 4(3) or Article 9(3) or (4) of this Regulation;

(h)

‘interested party’ means any Member State and any person, undertaking or association of undertakings whose interests might be affected by the granting of aid, in particular the beneficiary of the aid, competing undertakings and trade associations.

(a)

if it is limited to formal investigation procedures that have been identified by the Commission as being ineffective to date; and

(b)

in so far as aid beneficiaries are concerned, if the Member State concerned agrees to the request.

(a)

supply incorrect or misleading information in response to a request made pursuant to Article 7(6);

(b)

supply incorrect, incomplete or misleading information in response to a decision adopted pursuant to Article 7(7), or do not supply the information within the prescribed time limit.

(a)

according to an established practice there are no doubts about the aid character of the measure concerned;

(b)

there is an urgency to act;

(c)

there is a serious risk of substantial and irreparable damage to a competitor.

(a)

by notification of a decision modifying the original amount of the fine or periodic penalty payment or refusing an application for modification;

(b)

by any action of a Member State, acting at the request of the Commission, or of the Commission, intended to enforce payment of the fine or periodic penalty payment.

(a)

the respondent is allowed time to pay;

(b)

the enforcement of payment is suspended pursuant to a decision of the Court of Justice of the European Union.

(a)

substantive amendment of the aid scheme; or

(b)

introduction of procedural requirements; or

(c)

abolition of the aid scheme.

(a)

to enter any premises and land of the undertaking concerned;

(b)

to ask for oral explanations on the spot;

(c)

to examine books and other business records and take, or demand, copies.

(a)

the form, content and other details of notifications;

(b)

the form, content and other details of annual reports;

(c)

the form, content and other details of complaints submitted in accordance with Article 12(1) and Article 24(2);

(d)

details of time-limits and the calculation of time-limits; and

(e)

the interest rate referred to in Article 16(2).

24.9.2015   

EN

Official Journal of the European Union

L 248/30

(1)

Council Regulation (EU) 2015/104 (2) lays down quotas for 2015.

(2)

According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein have exhausted the quota allocated for 2015.

(3)

It is therefore necessary to prohibit fishing activities for that stock,

24.9.2015   

EN

Official Journal of the European Union

L 248/32

(1)

Council Regulation (EU) 2015/104 (2) lays down quotas for 2015.

(2)

According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein have exhausted the quota allocated for 2015.

(3)

It is therefore necessary to prohibit fishing activities for that stock,

24.9.2015   

EN

Official Journal of the European Union

L 248/34

(1)

Council Regulation (EU) 2015/104 (2), lays down quotas for 2015.

(2)

According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein have exhausted the quota allocated for 2015.

(3)

It is therefore necessary to prohibit fishing activities for that stock,

24.9.2015   

EN

Official Journal of the European Union

L 248/36

(1)

Council Regulation (EU) 2015/104 (2), lays down quotas for 2015.

(2)

According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member State referred to therein have exhausted the quota allocated for 2015.

(3)

It is therefore necessary to prohibit fishing activities for that stock,

24.9.2015   

EN

Official Journal of the European Union

L 248/38

(1)

Pursuant to the first subparagraph of Article 53(1) of Regulation (EU) No 1151/2012, the Commission has examined France's application for the approval of amendments to the specification for the protected designation of origin ‘Rocamadour’, registered under Commission Regulation (EC) No 38/1999 (2) as amended by Regulation (EC) No 939/2008 (3).

(2)

Since the amendments in question are not minor within the meaning of Article 53(2) of Regulation (EU) No 1151/2012, the Commission published the amendment application in the Official Journal of the European Union  (4) as required by Article 50(2)(a) of that Regulation.

(3)

As no statement of opposition under Article 51 of Regulation (EU) No 1151/2012 has been received by the Commission, the amendments to the specification should be approved,

24.9.2015   

EN

Official Journal of the European Union

L 248/39

(1)

Pursuant to the first subparagraph of Article 53(1) of Regulation (EU) No 1151/2012, the Commission has examined Slovenia's application for the approval of amendments to the specification for the protected geographical indication ‘Zgornjesavinjski želodec’, registered under Commission Regulation (EU) No 1154/2011 (2).

(2)

Since the amendments in question are not minor within the meaning of Article 53(2) of Regulation (EU) No 1151/2012, the Commission published the amendment application in the Official Journal of the European Union  (3) as required by Article 50(2)(a) of that Regulation.

(3)

As no statement of opposition under Article 51 of Regulation (EU) No 1151/2012 has been received by the Commission, the amendments to the specification should be approved,

24.9.2015   

EN

Official Journal of the European Union

L 248/40

(1)

Pursuant to the first subparagraph of Article 53(1) of Regulation (EU) No 1151/2012, the Commission has examined Spain's application for the approval of amendments to the specification for the protected designation of origin ‘Montes de Toledo’ registered under Commission Regulation (EC) No 1187/2000 (2), as amended by Regulation (EU) No 593/2010 (3).

(2)

Since the amendments in question are not minor within the meaning of Article 53(2) of Regulation (EU) No 1151/2012, the Commission published the amendment application in the Official Journal of the European Union  (4) as required by Article 50(2)(a) of that Regulation.

(3)

As no statement of opposition under Article 51 of Regulation (EU) No 1151/2012 has been received by the Commission, the amendments to the specification should be approved,

24.9.2015   

EN

Official Journal of the European Union

L 248/41

(1)

In accordance with Article 7(1) of Commission Delegated Regulation (EU) No 611/2014 (2), the first 3-year work programme period for support to the olive-oil and table-olives sector referred to in Article 29(1) of Regulation (EU) No 1308/2013 started on 1 April 2015.

(2)

Pursuant to Article 3(2) of Commission Implementing Regulation (EU) No 615/2014 (3), Member States are to pay an initial instalment of the advance to be paid to the beneficiary organisations in respect of the first year of implementation of the approved work programmes by 31 May 2015. As stated in Article 4(1) of that Regulation, such advances are subject to the lodging of a security by the beneficiary organisation.

(3)

In Greece, the prevailing economic and banking conditions have put to a standstill certain approved work programmes, as their beneficiary organisations were not able to lodge the required security timely. Therefore, Greece could not pay them the initial instalment by 31 May 2015.

(4)

In view of this situation and in order to allow for the implementation of all the approved work programmes, it is necessary to provide for a derogation from Article 3(2) of Implementing Regulation (EU) No 615/2014 to enable Greece to pay the relevant initial instalment by 15 October 2015.

(5)

In the interest of an expedient implementation, this Regulation should apply from the day following that of its publication.

(6)

The measures provided for in this Regulation are in accordance with the opinion of the Committee for the Common Organisation of the Agricultural Markets,

24.9.2015   

EN

Official Journal of the European Union

L 248/43

(1)

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

(2)

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

24.9.2015   

EN

Official Journal of the European Union

L 248/45

(1)

Regulation (EU) No 1333/2014 of the European Central Bank (ECB/2014/48) (2) requires the reporting of statistical data by reporting agents in order that the European System of Central Banks, in the fulfilment of its tasks, may produce statistics on money market transactions.

(2)

A set of reporting instructions setting out detailed parameters for the reporting of statistical information under Regulation (EU) No 1333/2014 (ECB/2014/48) will be issued to national central banks. As the reporting instructions refine a number of significant terms appearing in that Regulation, consistency requires that it should also reflect those changes.

(3)

Therefore, Regulation (EU) No 1333/2014 (ECB/2014/48) should be amended accordingly,

24.9.2015   

EN

Official Journal of the European Union

L 248/53

(1)

Pursuant to Council Decision 2010/570/EU, Euratom (2), the term of office of the current members of the European Economic and Social Committee expires on 20 September 2015. Members should therefore be appointed for a period of five years as from 21 September 2015.

(2)

Each Member State was requested to submit to the Council a list of candidates, consisting of representatives of organisations of employers, of the employed and of other parties representative of civil society, notably in socioeconomic, civic, professional and cultural areas, for appointment as members of the European Economic and Social Committee.

(3)

This Decision will be followed at a later date by a decision appointing those members whose nominations were not communicated to the Council before 8 September 2015,

24.9.2015   

EN

Official Journal of the European Union

L 248/80

(1)

According to Article 78(3) of the Treaty on the Functioning of the European Union (TFEU), in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission and after consulting the European Parliament, may adopt provisional measures for the benefit of the Member State(s) concerned.

(2)

According to Article 80 TFEU, the policies of the Union in the area of border checks, asylum and immigration and their implementation are to be governed by the principle of solidarity and fair sharing of responsibility between the Member States, and Union acts adopted in this area are to contain appropriate measures to give effect to this principle.

(3)

The recent crisis situation in the Mediterranean prompted the Union institutions to immediately acknowledge the exceptional migratory flows in that region and call for concrete measures of solidarity towards the frontline Member States. In particular, at a joint meeting of Foreign and Interior Ministers on 20 April 2015, the Commission presented a ten-point plan of immediate action to be taken in response to the crisis, including a commitment to consider options for an emergency relocation mechanism.

(4)

At its meeting of 23 April 2015, the European Council decided, inter alia, to reinforce internal solidarity and responsibility and committed itself in particular to increasing emergency assistance to frontline Member States and to considering options for organising emergency relocation between Member States on a voluntary basis, as well as to deploying European Asylum Support Office (EASO) teams in frontline Member States for the joint processing of applications for international protection, including registration and fingerprinting.

(5)

In its resolution of 28 April 2015, the European Parliament reiterated the need for the Union to base its response to the latest tragedies in the Mediterranean on solidarity and fair sharing of responsibility and to step up its efforts in this area towards those Member States which receive the highest number of refugees and applicants for international protection in either absolute or relative terms.

(6)

Besides measures in the area of asylum, Member States at the frontline should increase their efforts to set up measures to cope with mixed migration flows at the external borders of the European Union. Such measures should safeguard the rights of those in need of international protection and prevent irregular migration.

(7)

At its meeting of 25 and 26 June 2015, the European Council decided, inter alia, that three key dimensions should be advanced in parallel: relocation/resettlement, return/readmission/reintegration and cooperation with countries of origin and transit. The European Council agreed in particular, in the light of the current emergency situation and the commitment to reinforce solidarity and responsibility, on the temporary and exceptional relocation over 2 years, from Italy and from Greece to other Member States of 40 000 persons in clear need of international protection, in which all Member States would participate.

(8)

The specific situations of the Member States result in particular from migratory flows in other geographical regions, such as the Western Balkans migratory route.

(9)

Several Member States were confronted with a significant increase in the total number of migrants, including applicants for international protection, arriving on their territories in 2014 and some continue to be so confronted in 2015. Emergency financial assistance by the Commission and operational support by EASO were provided to several Member States to help them cope with this increase.

(10)

Among the Member States witnessing situations of considerable pressure and in light of the recent tragic events in the Mediterranean, Italy and Greece in particular have experienced unprecedented flows of migrants, including applicants for international protection who are in clear need of international protection, arriving on their territories, generating significant pressure on their migration and asylum systems.

(11)

On 20 July 2015, reflecting the specific situations of Member States, a Resolution of the representatives of the Governments of the Member States meeting within the Council on relocating from Greece and Italy 40 000 persons in clear need of international protection was adopted by consensus. Over a period of 2 years, 24 000 persons will be relocated from Italy and 16 000 persons will be relocated from Greece. On 14 September 2015, the Council adopted Decision (EU) 2015/1523 (2), which provided for a temporary and exceptional relocation mechanism from Italy and Greece to other Member States of persons in clear need of international protection.

(12)

During recent months, the migratory pressure at the southern external land and sea borders has again sharply increased, and the shift of migration flows has continued from the central to the eastern Mediterranean and towards the Western Balkans route, as a result of the increasing number of migrants arriving in and from Greece. In view of the situation, further provisional measures to relieve the asylum pressure from Italy and Greece should be warranted.

(13)

According to data of the European Agency for the Management of Operational Cooperation at the External Borders (Frontex), the central and eastern Mediterranean routes were the main areas for irregular border crossing into the Union in the first 8 months of 2015. Since the beginning of 2015, approximately 116 000 migrants arrived in Italy in an irregular manner, (including approximately 10 000 irregular migrants who have been registered by local authorities, but have yet to be confirmed in Frontex data). During May and June 2015, 34 691 irregular border crossings were detected by Frontex and during July and August, 42 356, an increase of 20 %. A strong increase was also witnessed by Greece in 2015, with more than 211 000 irregular migrants reaching the country (including approximately 28 000 irregular migrants who have been registered by local authorities, but have yet to be confirmed in Frontex data). During May and June 2015, 53 624 irregular border crossings were detected by Frontex and during July and August 137 000, an increase of 250 %). A significant proportion of the total number of irregular migrants detected in those two regions included migrants of nationalities which, based on the Eurostat data, meet a high Union-level recognition rate.

(14)

According to Eurostat and EASO figures, 39 183 persons applied for international protection in Italy between January and July 2015, compared to 30 755 in the same period of 2014 (an increase of 27 %). A similar increase in the number of applications was witnessed by Greece with 7 475 applicants (an increase of 30 %).

(15)

Many actions have been taken so far to support Italy and Greece in the framework of the migration and asylum policy, including by providing them with substantial emergency assistance and EASO operational support. Italy and Greece were the second and third largest beneficiaries of funding disbursed during the period 2007-2013 under the General Programme ‘Solidarity and Management of Migration Flows’ (SOLID), and, in addition, received substantial emergency funding. Italy and Greece will likely continue to be the main beneficiaries of the Asylum, Migration and Integration Fund (AMIF) in 2014-2020.

(16)

Due to the ongoing instability and conflicts in the immediate neighbourhood of Italy and Greece, and the repercussions in migratory flows on other Member States, it is very likely that a significant and increased pressure will continue to be put on their migration and asylum systems, with a significant proportion of the migrants who may be in need of international protection. This demonstrates the critical need to show solidarity towards Italy and Greece and to complement the actions taken so far to support them with provisional measures in the area of asylum and migration.

(17)

On 22 September 2015, the Council noted the willingness and readiness of Member States to take part, in accordance with the principles of solidarity and fair sharing of responsibility between the Member States, which govern the Union policy on asylum and migration, in the relocation of 120 000 persons in clear need of international protection. The Council therefore decided to adopt this Decision.

(18)

It should be recalled that Decision (EU) 2015/1523 sets out an obligation for Italy and Greece to provide structural solutions to address exceptional pressures on their asylum and migration systems, by establishing a solid and strategic framework for responding to the crisis situation and intensifying the ongoing reform process in these areas. The roadmaps which Italy and Greece have presented to that end should be updated to take this Decision into account.

(19)

Bearing in mind that the European Council agreed on a set of interlinked measures, the Commission should be entrusted with the power to suspend, where appropriate and having given the Member State concerned the opportunity to present its views, the application of this Decision for a limited period where Italy or Greece does not respect its commitments in this regard.

(20)

As of 26 September 2016, 54 000 applicants should be proportionally relocated from Italy and Greece to other Member States. The Council and the Commission should keep under constant review the situation regarding massive inflows of third country nationals into Member States. The Commission should submit, as appropriate, proposals to amend this Decision in order to address the evolution of the situation on the ground and its impact upon the relocation mechanism, as well as the evolving pressure on Member States, in particular frontline Member States. In doing so, it should take into account the views of the likely beneficiary Member State.

Should this Decision be amended for the benefit of another Member State, that Member State should, on the date of entry into force of the relevant Council amending Decision, present a roadmap to the Council and the Commission which should include adequate measures in the area of asylum, first reception and return, enhancing the capacity, quality and efficiency of its systems in those areas, as well as measures to ensure appropriate implementation of this Decision with a view to allowing it better to cope, after the end of the application of this Decision, with a possible increased inflow of migrants on its territory.

(21)

If any Member State should be confronted with a similar emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, and after consulting the European Parliament, may adopt provisional measures for the benefit of the Member State concerned, on the basis of Article 78(3) TFEU. Such measures may include, where appropriate, a suspension of the obligations of that Member State provided for in this Decision.

(22)

In accordance with Article 78(3) TFEU, the measures envisaged for the benefit of Italy and of Greece should be of a provisional nature. A period of 24 months is reasonable in view of ensuring that the measures provided for in this Decision have a real impact in respect of supporting Italy and Greece in dealing with the significant migration flows on their territories.

(23)

The measures to relocate from Italy and from Greece, provided for in this Decision, entail a temporary derogation from the rule set out in Article 13(1) of Regulation (EU) No 604/2013 of the European Parliament and of the Council (3) according to which Italy and Greece would otherwise have been responsible for the examination of an application for international protection based on the criteria set out in Chapter III of that Regulation, as well as a temporary derogation from the procedural steps, including the time limits, laid down in Articles 21, 22 and 29 of that Regulation. The other provisions of Regulation (EU) No 604/2013, including the implementing rules set out in Commission Regulation (EC) No 1560/2003 (4) and Commission Implementing Regulation (EU) No 118/2014 (5), remain applicable, including the rules contained therein on the obligation for the transferring Member States to meet the costs necessary to transfer an applicant to the Member State of relocation and on the cooperation on transfers between Member States, as well as on transmission of information through the DubliNet electronic communication network. This Decision also entails a derogation from the consent of the applicant for international protection as referred to in Article 7(2) of Regulation (EU) No 516/2014 of the European Parliament and of the Council (6).

(24)

Relocation measures do not absolve Member States from applying Regulation (EU) No 604/2013 in full, including the provisions related to family reunification, the special protection of unaccompanied minors, and the discretionary clause on humanitarian grounds.

(25)

A choice had to be made in respect of the criteria to be applied when deciding which and how many applicants are to be relocated from Italy and from Greece, without prejudice to decisions at national level on asylum applications. A clear and workable system is envisaged based on a threshold of the average rate at Union level of decisions granting international protection in the procedures at first instance, as defined by Eurostat, out of the total number at Union level of decisions on applications for international protection taken at first instance, based on the latest available statistics. On the one hand, this threshold would have to ensure, to the maximum extent possible, that all applicants in clear need of international protection would be in a position to fully and swiftly enjoy their protection rights in the Member State of relocation. On the other hand, it would have to prevent, to the maximum extent possible, applicants who are likely to receive a negative decision on their application from being relocated to another Member State, and therefore from prolonging unduly their stay in the Union. A threshold of 75 %, based on the latest available updated Eurostat quarterly data for decisions at first instance, should be used in this Decision.

(26)

The provisional measures are intended to relieve the significant asylum pressure on Italy and on Greece, in particular by relocating a significant number of applicants in clear need of international protection who will have arrived in the territory of Italy or Greece following the date on which this Decision becomes applicable. Based on the overall number of third-country nationals who have entered Italy and Greece irregularly in 2015, and the number of those who are in clear need of international protection, a total of 120 000 applicants in clear need of international protection should be relocated from Italy and Greece. This number corresponds to approximately 43 % of the total number of third-country nationals in clear need of international protection who have entered Italy and Greece irregularly in July and August 2015. The relocation measure foreseen in this Decision constitutes fair burden sharing between Italy and Greece on the one hand and the other Member States on the other, given the overall available figures on irregular border crossings in 2015. Given the figures at stake, 13 % of these applicants should be relocated from Italy, 42 % from Greece and 45 % should be relocated as provided for in this Decision.

(27)

Within 3 months of the entry into force of this Decision, a Member State may, in exceptional circumstances and giving duly justified reasons compatible with the fundamental values of the Union enshrined in Article 2 of the Treaty on European Union, notify the Council and the Commission that it is unable to take part in the relocation process of up to 30 % of applicants allocated to it in accordance with this Decision. Such exceptional circumstances include, in particular, a situation characterised by a sudden and massive inflow of nationals of third countries of such a magnitude as to place extreme pressure even on a well prepared asylum system otherwise functioning in line with the relevant Union acquis on asylum or a risk of sudden and massive inflow of nationals of third countries of such a high probability that it warrants an immediate action. Following an assessment, the Commission should submit proposals to the Council for an implementing decision regarding a temporary suspension of the relocation of up to 30 % of applicants allocated to the Member State concerned. Where justified, the Commission may propose to extend the time limit for relocation of the remaining allocation by up to 12 months beyond the duration of this Decision.

(28)

In order to ensure uniform conditions for the implementation of the relocation in the case of proportional relocation of 54 000 applicants from Italy and Greece to the other Member States, in the case where the participation of one or more Member States in the relocation of applicants should be suspended, or in the case where, following relevant notifications to the Council, other Member State(s) or Associated States take part in the relocation, implementing powers should be conferred on the Council.

The conferral of those powers upon the Council is justified in view of the politically sensitive nature of such measures, which touch on national powers regarding the admission of third country nationals on the territory of the Member States and the need to be able to adapt swiftly to rapidly evolving situations.

(29)

The Asylum, Migration and Integration Fund (AMIF) set up by Regulation (EU) No 516/2014 provides support to burden-sharing operations agreed between Member States, and is open to new policy developments in that field. Article 7(2) of Regulation (EU) No 516/2014 provides for the possibility for Member States to implement actions related to the transfer of applicants for international protection as part of their national programmes, while Article 18 of that Regulation provides for the possibility of a lump sum payment of EUR 6 000 for the transfer of beneficiaries of international protection from another Member State.

(30)

With a view to implementing the principle of solidarity and fair sharing of responsibility, and taking into account that this Decision constitutes a further policy development in this field, it is appropriate to ensure that the Member States that relocate, pursuant to this Decision, applicants from Italy and Greece who are in clear need of international protection, receive a lump sum for each relocated person which is identical to the lump sum provided for in Article 18 of Regulation (EU) No 516/2014, namely EUR 6 000, and is implemented by applying the same procedures. This entails a limited, temporary derogation from Article 18 of that Regulation because the lump sum should be paid in respect of relocated applicants rather than in respect of beneficiaries of international protection. Such a temporary extension of the scope of potential recipients of the lump sum appears indeed to be an integral part of the emergency scheme set up by this Decision. Moreover, with regard to the costs for the transfer of persons relocated pursuant to this Decision, it is appropriate to provide that Italy and Greece receive a lump sum of at least EUR 500 for each person relocated from their respective territories, taking into account the actual costs necessary to transfer an applicant to the Member State of relocation. Member States should be entitled to receive additional pre-financing to be paid in 2016 following the revision of their national programmes under the Asylum, Migration and Integration Fund to implement actions under this Decision.

(31)

It is necessary to ensure that a swift relocation procedure is put in place and to accompany the implementation of the provisional measures by close administrative cooperation between Member States and operational support provided by EASO.

(32)

National security and public order should be taken into consideration throughout the relocation procedure, until the transfer of the applicant is implemented. In full respect of the fundamental rights of the applicant, including the relevant rules on data protection, where a Member State has reasonable grounds for regarding an applicant as a danger to its national security or public order, it should inform the other Member States thereof.

(33)

When deciding which applicants in clear need of international protection should be relocated from Italy and from Greece, priority should be given to vulnerable applicants within the meaning of Articles 21 and 22 of Directive 2013/33/EU of the European Parliament and of the Council (7). In this respect, any special needs of applicants, including health, should be of primary concern. The best interests of the child should always be a primary consideration.

(34)

The integration of applicants in clear need of international protection into the host society is the cornerstone of a properly functioning Common European Asylum System. Therefore, in order to decide which specific Member State should be the Member State of relocation, specific account should be given to the specific qualifications and characteristics of the applicants concerned, such as their language skills and other individual indications based on demonstrated family, cultural or social ties which could facilitate their integration into the Member State of relocation. In the case of particularly vulnerable applicants, consideration should be given to the capacity of the Member State of relocation to provide adequate support to those applicants and to the necessity of ensuring a fair distribution of those applicants among Member States. With due respect for the principle of non-discrimination, Member States of relocation may indicate their preferences for applicants based on the above information on the basis of which Italy and Greece, in consultation with EASO and, where applicable, liaison officers, may compile lists of possible applicants identified for relocation to that Member State.

(35)

The legal and procedural safeguards set out in Regulation (EU) No 604/2013 remain applicable in respect of applicants covered by this Decision. In addition, applicants should be informed of the relocation procedure set out in this Decision and be notified with the relocation decision which constitutes a transfer decision within the meaning of Article 26 of Regulation (EU) No 604/2013. Considering that an applicant does not have the right under Union law to choose the Member State responsible for his or her application, the applicant should have the right to an effective remedy against the relocation decision in line with Regulation (EU) No 604/2013, only in view of ensuring respect for his or her fundamental rights. In line with Article 27 of that Regulation, Member States may provide in their national law that the appeal against the transfer decision does not automatically suspend the transfer of the applicant but that the person concerned has the opportunity to request a suspension of the implementation of the transfer decision pending the outcome of his or her appeal.

(36)

Before and after being transferred to the Member States of relocation, applicants enjoy the rights and guarantees provided for in Directive 2013/32/EU (8) and Directive 2013/33/EU (9) of the European Parliament and of the Council, including in relation to their special reception and procedural needs. In addition, Regulation (EU) No 603/2013 of the European Parliament and of the Council (10) remains applicable in respect of applicants covered by this Decision, and Directive 2008/115/EC of the European Parliament and of the Council (11) is applicable for the returning of third-country nationals not having the right to remain on the territory. The above is subject to the limitations in the application of those Directives.

(37)

In line with the Union acquis, a robust mechanism of identification, registration and fingerprinting for the relocation procedure should be ensured by Italy and Greece so as to quickly identify the persons in need of international protection who are eligible for relocation and to identify the migrants who do not qualify for international protection and should therefore be returned. This should also apply to persons who arrived on the territory of Italy or Greece between 24 March and 25 September 2015 in order for them to be eligible for relocation. When voluntary return is not practicable and other measures provided for in Directive 2008/115/EC are not adequate to prevent secondary movements, detention measures in line with Chapter IV of that Directive should be applied urgently and effectively. Applicants that elude the relocation procedure should be excluded from relocation.

(38)

Measures should be taken in order to avoid secondary movements of relocated persons from the Member State of relocation to other Member States which could hamper the efficient application of this Decision. In particular, Member States should take the necessary preventive measures in the field of access to social benefits and legal remedies, in accordance with Union law. In addition, applicants should be informed of the consequences of irregular onward movement within the Member States and of the fact that, if the Member State of relocation grants them international protection, they are entitled to the rights attached to international protection only in that Member State.

(39)

Additionally, in line with the objectives set out in Directive 2013/33/EU, the harmonisation of reception conditions amongst Member States should help to limit secondary movements of applicants for international protection influenced by the variety of conditions for their reception. With a view to reaching the same objective, Member States should consider imposing reporting obligations, and providing applicants for international protection with material reception conditions that include housing, food and clothing only in kind, as well as, where appropriate, ensuring that applicants are directly transferred to the Member State of relocation. Likewise, during the period of the examination of applications for international protection, as provided for in the asylum and Schengen acquis, except for serious humanitarian reasons, Member States should neither provide applicants with national travel documents, nor give them other incentives, such as financial ones, which could facilitate their irregular movements to other Member States. In case of irregular movements to other Member States, applicants for or beneficiaries of international protection should be required to go back to the Member State of relocation, and that Member State should take those persons back without delay.

(40)

In order to avoid secondary movements of beneficiaries of international protection, Member States should also inform the beneficiaries about the conditions under which they may legally enter and stay in another Member State, and should be able to impose reporting obligations. Pursuant to Directive 2008/115/EC, Member States should require a beneficiary of international protection who is staying irregularly on their territories to go back immediately to the Member State of relocation. In case the person refuses to return voluntarily, return to the Member State of relocation should be enforced.

(41)

Furthermore, if provided for in national law, in the case of enforced return to the Member State of relocation, the Member State which enforced the return may decide to issue a national entry ban that would prevent the beneficiary, for a certain period of time, from re-entering the territory of that specific Member State.

(42)

As the purpose of this Decision is to address an emergency situation and to support Italy and Greece in reinforcing their asylum systems, it should allow them to make, with the assistance of the Commission, bilateral arrangements with Iceland, Liechtenstein, Norway and Switzerland on the relocation of persons falling within the scope of this Decision. Such arrangements should also reflect the core elements of this Decision, in particular those relating to the relocation procedure and the rights and obligations of applicants as well as those relating to Regulation (EU) No 604/2013.

(43)

The specific support provided to Italy and to Greece through the relocation scheme should be complemented by additional measures, from the arrival of third-country nationals on the territory of Italy or of Greece until the completion of all applicable procedures, coordinated by EASO and other relevant Agencies, such as Frontex coordinating the return of third-country nationals not having the right to remain on the territory, in accordance with Directive 2008/115/EC.

(44)

Since the objectives of this Decision cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Decision does not go beyond what is necessary in order to achieve those objectives.

(45)

This Decision respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union.

(46)

In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Decision and is not bound by it or subject to its application.

(47)

In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Decision and is not bound by it or subject to its application.

(48)

In case where, following a notification made pursuant to Article 4 of Protocol No 21 by a Member State covered by that Protocol, the Commission confirms in accordance with Article 331(1) TFEU the participation of that Member State in this Decision, the Council should fix the number of applicants to be relocated to that Member State. The Council should also accordingly adapt the allocations of other Member States by reducing them in proportion.

(49)

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.

(50)

In view of the urgency of the situation, this Decision should enter into force on the date following that of its publication in the Official Journal of the European Union,

(a)

‘application for international protection’ means an application for international protection as defined in point (h) of Article 2 of Directive 2011/95/EU of the European Parliament and of the Council (12);

(b)

‘applicant’ means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken;

(c)

‘international protection’ means refugee status and subsidiary protection status as defined in points (e) and (g), respectively, of Article 2 of Directive 2011/95/EU;

(d)

‘family members’ means family members as defined in point (g) of Article 2 of Regulation (EU) No 604/2013;

(e)

‘relocation’ means the transfer of an applicant from the territory of the Member State which the criteria laid down in Chapter III of Regulation (EU) No 604/2013 indicate as responsible for examining his or her application for international protection to the territory of the Member State of relocation;

(f)

‘Member State of relocation’ means the Member State which becomes responsible for examining the application for international protection pursuant to Regulation (EU) No 604/2013 of an applicant following his or her relocation in the territory of that Member State.

(a)

15 600 applicants shall be relocated from Italy to the territory of the other Member States in accordance with the table set out in Annex I;

(b)

50 400 applicants shall be relocated from Greece to the territory of the other Member States in accordance with the table set out in Annex II;

(c)

54 000 applicants shall be relocated to the territory of the other Member States, proportionally to the figures laid down in Annexes I and II, either in accordance with paragraph 2 of this Article or through an amendment of this Decision, as referred to in Article 1(2) and in paragraph 3 of this Article.

(a)

the screening of the third-country nationals arriving in Italy and Greece, including their clear identification, fingerprinting and registration, and, where applicable, the registration of their application for international protection and, upon request by Italy or Greece, their initial processing;

(b)

the provision to applicants or potential applicants that could be subject to relocation pursuant to this Decision of information and specific assistance that they may need;

(c)

the preparation and organisation of return operations for third-country nationals who either did not apply for international protection or whose right to remain on the territory has ceased.

(a)

the Member State of relocation shall receive a lump sum of EUR 6 000;

(b)

Italy or Greece shall receive a lump sum of at least EUR 500.

24.9.2015   

EN

Official Journal of the European Union

L 248/95

(1)

Directive 2009/138/EC establishes a risk-based prudential regime for insurance and reinsurance undertakings in the Union. Full application of Directive 2009/138/EC to insurers and reinsurers in the Union will commence on 1 January 2016.

(2)

Even though the Solvency II Directive will be fully applied from 1 January 2016, the Commission may already adopt the present Delegated Decision as indicated under Article 311 of the Solvency II Directive.

(3)

Article 172 of Directive 2009/138/EC relates to equivalence of the solvency regime of a third country applied to reinsurance activities of undertakings with their head office in that third country. A positive equivalence determination allows reinsurance contracts concluded with undertakings having their head office in that third country to be treated in the same manner as reinsurance contracts concluded with undertakings authorised in accordance with that Directive.

(4)

Article 227 of Directive 2009/138/EC relates to equivalence for third-country insurers that are part of groups headquartered in the Union. A positive equivalence determination allows such groups, when deduction and aggregation is used as the consolidation method for their group reporting, to take into account the calculation of capital requirements and available capital (own funds) under the rules of the non-Union jurisdiction rather than calculating them on the basis of Directive 2009/138/EC, for the purposes of calculating the group solvency requirement and eligible own funds.

(5)

Article 260 of Directive 2009/138/EC relates to equivalence of insurance and reinsurance undertakings, the parent undertaking of which has its head office outside the Union. In accordance with Article 261(1) of Directive 2009/138/EC, in case of a positive equivalence determination, Member States rely on the equivalent group supervision exercised by the third-country group supervisory authorities.

(6)

A third country's legal regime is to be considered as fully equivalent to that established by Directive 2009/138/EC if it complies with requirements which provide a comparable level of policyholder and beneficiary protection. Full equivalence determinations under Articles 172(2), 227(4) and 260(3) are of unlimited duration unless repealed.

(7)

On 9 March 2015, the European Insurance and Occupational Pensions Authority (EIOPA) provided advice according to Article 33(2) of Regulation (EU) No 1094/2010 of the European Parliament and of the Council (2) to the Commission on the regulatory and supervisory system for (re)insurance undertakings and groups in force in Switzerland. EIOPA's advice is based on the Swiss relevant legislative framework, including the Swiss Financial Market Supervisory Act of 22 June 2007 (FINMASA), which entered into force on 1 January 2009, the Insurance Supervision Act (ISA) of 17 December 2004 and the Insurance Supervision Ordinance (ISO) (3). The Commission has based its assessment on the information provided by EIOPA.

(8)

Taking into account the provisions of Commission Delegated Regulation (EU) 2015/35 (4), in particular Articles 378, 379 and 380, as well as EIOPA's advice, a number of criteria are to be applied to assess equivalence under Article 172(2), 227(4) and 260(3) of Directive 2009/138/EC, respectively.

(9)

Those criteria include certain requirements which are common to two or more of Articles 378, 379 and 380 of Delegated Regulation (EU) 2015/35, which are valid at the level of solo (5) (re)insurance undertakings and at the level of (re)insurance groups, and which cover the areas of powers, solvency, governance, transparency, cooperation between authorities and handling of confidential information, and impact of the decisions on financial stability.

(10)

First, regarding the means, powers and responsibilities, the Swiss financial market supervisor (FINMA) has the power to effectively supervise (re)insurance activities and impose sanctions or take enforcement action where necessary, such as revoking an undertaking's business licence or replace all or part of its management. FINMA has the necessary financial and human means, expertise, capacities and mandate to effectively protect all policyholders and beneficiaries.

(11)

Second, regarding solvency, the Swiss Solvency Test (SST) assessment of the financial position of (re)insurance undertakings or groups relies on sound economic principles, and solvency requirements are based on an economic valuation of all assets and liabilities. The SST requires (re)insurance undertakings to hold adequate financial resources and lays down criteria on technical provisions, investments, capital requirements (including minimum level of capital) and own funds, requiring timely intervention by FINMA if capital requirements are not complied with or if policyholders' interests are threatened. The capital requirements are risk-based, aiming at capturing quantifiable risks. Where a risk is not quantified, it is addressed through other measures: for instance operational risks are addressed qualitatively through the Swiss Quality Assessment (SQA). The main capital requirement, known as the target capital under the SST, is calculated to cover unexpected losses arising from the existing business. In addition, the absolute minimum capital requirement (minimum capital) for insurers varies under the SST depending on the insurance business line. Both requirements are at least as strong as the corresponding Directive 2009/138/EC requirements for all current Swiss insurers' combinations of business lines. Regarding models, insurance undertakings may use a standard model or, if required by FINMA or upon their own initiative, an internal model.

(12)

Third, regarding governance, the Swiss solvency regime requires (re)insurance undertakings to have an effective system of governance in place, imposing on them in particular a clear organisational structure, fit and proper requirements for those effectively running the undertakings, effective process for transmission of information within the undertakings and to FINMA. In addition, FINMA effectively supervises outsourced functions and activities.

(13)

The SST also requires (re)insurance undertakings and groups to maintain risk-management, compliance, internal audit and actuarial functions. The SST imposes a risk management system capable of identifying, measuring, monitoring, managing and reporting risks, and an effective internal control system. The requirements of Directive 2009/138/EC regarding internal audit and compliance for solo undertakings are satisfactorily addressed by the ISO, since it reinforces risk management requirements and in particular the obligation to have a compliance function.

(14)

The regime in force in Switzerland requires that changes to the business policy or management of (re)insurance undertakings or groups or qualifying holdings in such undertakings or groups must be consistent with sound and prudent management. In particular, acquisitions, changes in the business plan or in qualifying holdings of (re)insurance undertakings or insurance groups are notified to FINMA, which may take appropriate sanctions if justified, such as prohibiting an acquisition.

(15)

Fourth, regarding transparency, (re)insurance undertakings and groups are required to provide FINMA with any information necessary to supervision, and publish, at least annually, a report on their solvency and financial condition. The requirements of Directive 2009/138/EC regarding public disclosure are satisfactorily addressed by the ISO, since the types of qualitative and quantitative information to be disclosed are in line with Directive 2009/138/EC. Under the ISO, (re)insurance undertakings and groups have to disclose their business activities, performance, risk management, risk profile, methods used for assessment regarding in particular provisions, capital management and solvency.

(16)

Fifth, regarding professional secrecy and cooperation and exchange of information, the regime in force in Switzerland has professional secrecy obligations in place for all persons who work or have worked for FINMA, including auditors and experts acting on behalf of FINMA. Those obligations also stipulate that confidential information may not be divulged except in aggregate or summary form, without prejudice to cases covered by criminal law. Furthermore, FINMA will only use confidential information received from other supervisory authorities to perform its duties and for the purposes provided for by the law. The regime in force in Switzerland also requires that in case a (re)insurance undertaking is declared bankrupt or compulsorily wound up, confidential information may be disclosed if it does not concern third parties involved in rescuing that undertaking. FINMA may share confidential information received from another supervisory authority with authorities, bodies or persons covered by professional secrecy obligations in Switzerland only after the express agreement of that supervisory authority. It has signed Memoranda of Understanding with all Member States of the Union to coordinate international cooperation, in particular on exchange of confidential information.

(17)

Sixth, regarding the impact of its decisions, FINMA and the other Swiss authorities which have the mandate to ensure the proper functioning of financial markets, such as the Swiss National Bank and the Ministry of Finance are equipped to appreciate how decisions will affect the stability of financial systems globally, in particular during emergency situations, and to take into account their potential procyclical effects where exceptional movements in the financial markets occur. Under the regime in force in Switzerland, regular meetings take place between the abovementioned authorities to exchange information on financial stability risks and coordinate action. The same takes place at international level, where Swiss authorities exchange for instance with the supervisory colleges of the Member States of the Union and EIOPA on financial stability matters.

(18)

Articles 378 and 380 of Delegated Regulation (EU) 2015/35 also set out specific criteria regarding equivalence for reinsurance activities and for group supervision.

(19)

Regarding the specific criteria for reinsurance activities under Article 378 of Delegated Regulation (EU) 2015/35, the taking-up of business of reinsurance is subject to prior authorisation by FINMA conditional on detailed standards set in law. Reinsurance captive companies are covered by the solvency regime in force in Switzerland under the ISO.

(20)

Regarding the specific criteria for group supervision under Article 380 of Delegated Regulation (EU) 2015/35, FINMA has the power to determine which undertakings fall under the scope of supervision at group level and supervise insurance and reinsurance undertakings which are part of a group. FINMA supervises all (re)insurance undertakings over which a participating undertaking, as defined in Article 212(1)(a) of Directive 2009/138/EC, exercises a dominant or significant influence.

(21)

FINMA is capable of assessing the risk profile, financial position and solvency of (re)insurance undertakings that are part of a group and the business strategy of that group.

(22)

Under the regime in force in Switzerland, reporting and accounting rules allow monitoring of intra-group transactions and risk concentrations, which (re)insurance groups must report at least on an annual basis.

(23)

Under the regime in force in Switzerland, FINMA restricts the use of own funds of a (re)insurance undertaking if they cannot effectively be made available to cover the capital requirement of the participating undertaking for which group solvency is calculated. The calculation of group solvency leads to results at least equivalent to the results of the methods set in Articles 230 and 233 of Directive 2009/138/EC, without double counting of own funds and after eliminating the intra-group creation of capital through reciprocal financing. More in detail, even if there is no group solvency ratio as under Articles 230 and 233 of Directive 2009/138/EC but a series of solvency ratios per entity within a group, that series captures all interactions between entities of the group and is thus taking the group structure into account.

(24)

Accordingly, as it fulfils all the criteria laid down in Articles 378, 379 and 380 of Delegated Regulation (EU) 2015/35, the regulatory and supervisory regime in force in Switzerland for (re)insurance undertakings and groups is considered to meet the criteria for full equivalence laid down in Articles 172(2), 227(4) and 260(3) of Directive 2009/138/EC.

(25)

The Commission may undertake a specific review relating to an individual third country or territory at any time outside the general review, where relevant developments make it necessary for the Commission to re-assess the recognition granted by this decision. The Commission should continue to monitor, with the technical assistance of EIOPA, the evolution of the regime in force in Switzerland and the fulfilment of the conditions on the basis of which this Decision has been taken,

(26)

Directive 2009/138/EC applies from 1 January 2016. This Decision should therefore also grant equivalence as of that date to the solvency and prudential regime in force in Switzerland,

24.9.2015   

EN

Official Journal of the European Union

L 248/99

(1)

The Spanish authorities notified to the Commission and to the other Member States a measure of withdrawal from the market relating to buoyant aids for swimming instructions type Delphin Schwimmscheiben- Typ Super, manufactured by Delphin Vertriebs- und Service GmbH, D-61192 Niddatal, Germany. The product bore the CE marking in accordance with Directive 89/686/EEC, having been tested and type-examined in accordance with the harmonised standard EN 13138-1:2008 Buoyant aids for swimming instruction — Part 1: Safety requirements and test methods for buoyant aids to be worn by the German Notified Body TÜV Rheinland LGA Products GmbH (NB 0197). The product is considered personal protective equipment classified in category II.

(2)

The notification followed an accident report: after a swimming session, when parents were gathering their belongings before going home, a child bit one of the discs, detaching and swallowing a small piece of it, being necessary medical assistance and hospitalisation.

(3)

The Spanish authorities ordered the withdrawal of the product from the market. The measure was motivated by the unsatisfactory application of the standards referred to in Article 5 of Directive 89/686/EEC, in particular the harmonised standard EN 13138-1:2008 Buoyant aids for swimming instruction — Part 1: Safety requirements and test methods for buoyant aids to be worn, clause 5.4.2 Small parts, related to the basic health and safety requirement of point 1.2.1 of Annex II to Directive 89/686/EEC, Absence of risks and other ‘inherent’ nuisance factors. Clause 5.4.2 of standard EN 13138-1 requires that attached small parts withstand a pull of (90 ± 2) N in the direction most likely to cause failure without becoming detached from the device. Parts which can become detached should not fit wholly into the small parts cylinder, the testing of which is to be in accordance with standard EN 71-1.

(4)

The Spanish authorities indicated that, after carrying out tensile tests in accordance with the harmonised standard EN 13138-1:2008, it was revealed that small parts can be detached from the product, and swallowed by small children for which the product is intended. The level of pull where such small parts were detached resulted always less than 90 N and fit wholly into the small parts cylinder. The Spanish authorities considered that clause 5.4.2 of that standard is not limited to test only attached small parts, but small parts in general. They used a ‘bite tester’ equipment according to the tests defined in standards EN 12227:2010 Playpens for domestic use — Safety requirements and test methods and EN 716-2:2008 Furniture — Children's cots and folding cots for domestic use — Part 2: Test methods.

(5)

The German authorities did not agree with the risk assessment carried out by the Spanish authorities, considering that the test method used was not compatible with the practical use of the equipment. In their opinion, clause 5.4.2 of standard EN 13138-1 only covers attached small parts. The German authorities argued that the product does not present any serious risk, since it is not a toy and the risk scenario, as described by the Spanish authorities, would be unrealistic.

(6)

The manufacturer also questioned the test method used by the Spanish authorities. In the EC type-examination of the product, the notified body did not perform a test in accordance with clause 5.4.2 of standard EN 13138-1 with the remark that the product does not have any attached small parts.

(7)

After the notification, the manufacturer asked the notified body to perform an additional tensile test in accordance with clause 8.5.2.2 of standard EN 1888:2012 Child care articles — Wheeled child conveyances — Safety requirements and test methods, using the ‘bite tester’ described in clause 5.7 of that standard, identical to the ‘bite tester’ described in standards EN 716-2 and EN 12227. No small parts could be generated from the body of the product. Furthermore, the Notified Body carried out a follow-up test which showed that no parts came loose when the device was subjected to a tensile force of 90N, a test resembling the test method for small parts in standard EN 71-1 Safety of toys — Part 1: Mechanical and physical properties.

(8)

The Commission sought expert technical assistance in order to assess the main questions involved in the case. An external study was carried out by technical experts which concluded that testing with only attached small parts is enough to demonstrate compliance with the basic health and safety requirement set out in point 1.2.1 of Annex II to Directive 89/686/EEC.

(9)

The standard EN 13138-1 does not provide for a clear test method for testing attached small parts. In view of this ambiguity, a choice had to be made amongst appropriate available test method, taking into consideration the nature of the product. The Spanish authorities applied the test method they found the most appropriate to assess the risks posed the product. The technical experts, nevertheless, concluded that the test method applied by the Spanish authorities was not appropriate.

(10)

The tensile test carried out by the German notified body can be considered as the only relevant test method in the present case. Therefore, the EC-type examination test method is valid and the EC-type examination assessment granted by the notified body was made correctly.

(11)

According to the available statistics on inherent swimming aids on the market and accidents, the conclusion can be drawn that swimming aids made of inherent material do not pose any particular risks of chocking when used in accordance with their intended purpose and under their foreseeable conditions of use. These products are meant to be used only in the water,