20.12.2016   

EN

Official Journal of the European Union

L 345/1

(1)

Pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012, Italy's application to register the name ‘Olio di Calabria’ was published in the Official Journal of the European Union  (2).

(2)

As no statement of objection under Article 51 of Regulation (EU) No 1151/2012 has been received by the Commission, the name ‘Olio di Calabria’ should therefore be entered in the register,

20.12.2016   

EN

Official Journal of the European Union

L 345/3

(1)

Pursuant to the first subparagraph of Article 53(1) of Regulation (EU) No 1151/2012, the Commission examined Italy's application for the approval of amendments to the specification for the protected geographical indication ‘Pomodoro di Pachino’, registered under Commission Regulation (EC) No 617/2003 (2), as amended by Commission Implementing Regulation (EU) No 675/2013 (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,

20.12.2016   

EN

Official Journal of the European Union

L 345/4

(1)

On 31 March 2016, the European Commission (‘the Commission’) initiated an anti-dumping investigation with regard to imports into the Union of certain concrete reinforcement bars and rods originating in the Republic of Belarus (‘Belarus’ or ‘the country concerned’) on the basis of Article 5 of Council Regulation (EC) No 1225/2009 (2) (‘the basic Regulation’). The relevant Notice of Initiation was published in the Official Journal of the European Union  (3) (‘the Notice of Initiation’).

(2)

The Commission initiated the investigation following a complaint lodged on 15 February 2016 by the European Steel Association (‘the complainant’) on behalf of producers representing 44 % of the total Union production of certain concrete reinforcement bars and rods. No other producer expressing either opposition or neutral position had come forward.

(3)

Therefore, the relevant thresholds as set out in the Article 5(4) of the basic Regulation (4) were met at the time of the initiation of the case. Once the investigation is opened, it is not necessary that the conditions for standing are met throughout the entire investigation. The Court has confirmed this for the situation where a company withdraws its support for the complaint (5); the same reasoning applies by analogy in a situation where the product scope changes.

(4)

In the Notice of Initiation, the Commission invited interested parties to come forward in order to participate in the investigation. In addition, the Commission specifically informed the complainant, other known Union producers, the one known Belarusian exporting producer and the authorities of the Republic of Belarus as well as known importers and users about the initiation of the investigation and invited them to participate.

(5)

Interested parties had an opportunity to comment on the initiation of the investigation and to request a hearing with the Commission and/or the Hearing Officer in trade proceedings.

(6)

In the Notice of Initiation, the Commission also informed interested parties that it envisaged South Africa or the United States of America (‘the USA’) as a third market-economy country (‘the analogue country’) within the meaning of Article 2(7)(a) of the basic Regulation. Interested parties had an opportunity to comment and to request a hearing with the Commission and/or the Hearing Officer in trade proceedings.

(7)

In its Notice of Initiation, the Commission stated that it might sample the interested parties in accordance with Article 17 of the basic Regulation.

(8)

In its Notice of Initiation, the Commission stated that it had provisionally selected a sample of Union producers on the basis of production and sales volume of the product under investigation and geographic location. This sample consisted of five Union producers. The sampled Union producers accounted for 22,4 % of the total Union production and 24,4 % of the total Union sales of the product concerned. The companies are located in France, Germany, Italy, Poland and Spain, covering a broad geographic variety. The Commission invited interested parties to comment on the provisional sample. No comments were received. Therefore, it was concluded that the sample is representative of the Union industry.

(9)

In order to decide whether sampling is necessary and, if so, to select a sample, the Commission requested unrelated importers to provide the information specified in the Notice of Initiation.

(10)

Six unrelated importers provided the requested information and agreed to be included in the sample. In accordance with Article 17(1) of the basic Regulation, the Commission selected a sample of three importers on the basis of the largest volume of imports into the Union. The three sampled companies accounted for 80 % of the unrelated imports of the product concerned originating in Belarus. In accordance with Article 17(2) of the basic Regulation, all known importers concerned were consulted on the selection of the sample. No comments were received.

(11)

The Commission sent questionnaires to the five sampled Union producers, the cooperating exporting producer in the country concerned, one producer in the USA, selected as the analogue country as explained in recital 32 below, three sampled importers, eight users known at the moment of initiation of the investigation and to one additional user who made itself known at a late stage of the procedure.

(12)

Questionnaire replies were received from five sampled Union producers, the cooperating exporting producer in the country concerned, one producer in the USA (‘the analogue country’) and two unrelated importers.

(13)

The Commission sought and verified all the information deemed necessary for a provisional determination of dumping, resulting injury and Union interest. Verification visits pursuant to Article 16 of the basic Regulation were carried out at the premises of the following companies:

(14)

The investigation of dumping and injury covered the period from 1 January 2015 to 31 December 2015 (‘the investigation period’ or ‘IP’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2012 to the end of the investigation period (‘the period considered’).

(15)

The product concerned is certain concrete reinforcement bars and rods, made of iron or non-alloy steel, not further worked than forged, hot-rolled, hot-drawn or hot-extruded, but including those twisted after rolling and also those containing indentations, ribs, grooves or other deformations produced during the rolling process, originating in Belarus and currently falling within CN codes ex 7214 10 00, ex 7214 20 00, ex 7214 30 00, ex 7214 91 10, ex 7214 91 90, ex 7214 99 10, ex 7214 99 71, ex 7214 99 79 and ex 7214 99 95 (‘the product concerned’). High fatigue performance iron or steel concrete reinforcing bars and rods are excluded.

(16)

The investigation showed that the product concerned and the product produced and sold on the domestic market of the USA, as well as the product produced by the Union industry and sold on the Union market have the same basic physical, chemical and technical characteristics and uses. They are therefore provisionally considered to be alike within the meaning of Article 1(4) of the basic Regulation.

(17)

The Belarusian exporting producer pointed to an alleged inconsistency in the product scope description between the complaint (referring to two CN codes) and the Notice of Initiation (referring to nine CN codes). It was claimed that for that reason the injury assessment in the complaint does not refer to the same scope as in the subsequent initiated proceeding. It further noted that the company only exported under the two CN codes mentioned in the complaint.

(18)

The complaint indeed mentioned two CN codes in the product description while the Notice of Initiation listed nine of them. The Commission notes that the CN codes provided in the Notice of Initiation are given for information purposes only, as clearly stated. It further notes that the investigation was opened based on the description of the product concerned provided in the complaint which in substance covers nine CN codes regardless of the reference and, therefore, the additional CN codes had no impact on the evidence provided in the Complaint. Therefore this claim of alleged inconsistency in the product description was rejected.

(19)

According to Article 2(7)(a) of the basic Regulation, Belarus is not considered as a market-economy country. Therefore, the normal value in respect of Belarusian exports to the Union was determined on the basis of data obtained from a producer in a market-economy third country.

(20)

During the IP, imports from Belarus totalled around 488 000 tonnes with a market share of about 5 %. The main importing Member States were Germany, Lithuania, Poland and the Netherlands. The only known Belarusian manufacturer cooperated with the investigation and replied to the questionnaire. This manufacturer sold the product concerned to the Union directly or via related traders established in the Union and the USA.

(21)

According to Article 2(7)(a) of the basic Regulation, normal value was determined on the basis of the price or constructed value in a market-economy third country. For this purpose, a market-economy third country had to be selected (‘the analogue country’).

(22)

As mentioned in recital 6, in the Notice of Initiation, the Commission had informed interested parties that it envisaged South Africa or the USA as a market-economy third for the purpose of establishing the normal value.

(23)

Comments on the proposed analogue countries were received from the sole Belarusian cooperating exporting producer. It claimed that neither South Africa nor the USA was an appropriate choice as an analogue country because, among other reasons, the production capacity, the actual production output, the production process in South Africa and the USA was different in comparison with the Belarusian producer. Moreover, this party claimed that the domestic producers in South Africa and the USA identified by the complainants were directly related to Union producers. Therefore, the objectiveness of the data collected in these countries from such producers may be questionable. This party proposed that Russia would constitute the most appropriate choice as the analogue country since the Russian steel bar industry has the most similar level of development compared to that of Belarus, production process is also based on metal scrap and the steel bar produced is similar in terms of quality and technical specifications. However, the Commission noted that the party did not provide any evidence, showing that South Africa or the USA producers were not using metal scrap for producing the product concerned or that in their cost structure the raw materials did not represent 60 %-70 % of the cost of production. In any event the Commission investigated the appropriateness of South Africa and the USA (as well as Brazil) as an analogue country. The details of these analyses were set out in recitals 28 to 34.

(24)

With the aim of selecting the market-economy third country, the Commission contacted all known producers not only in South Africa and the USA but also in Turkey, Ukraine, the Russian Federation, Bosnia and Herzegovina, Mexico, Korea, the Dominican Republic, Norway and Switzerland. The commission requested information regarding their domestic market and to report the type of products produced, the production capacity, the production output, the volume of domestic sales, to describe the production process, the type of raw material used, the share of raw materials, energy and labour costs in the total manufacturing costs of the product concerned, and finally their willingness to cooperate with the investigation.

(25)

In addition, the authorities of the above mentioned third countries were contacted.

(26)

The Russian authorities informed the Commission that none of the known Russian producers or their associations demonstrated interest in the current investigation. Therefore, in the absence of cooperation from any Russian producers, Russia could not be taken as analogue country.

(27)

Only three producers replied to the initial enquiry. They were located in Brazil, South Africa and the USA. The South African and the US producers were related with some of the complainants. The Brazilian producer was part of group of companies which had production facilities in various countries, including the USA, Mexico and the Dominican Republic. This producer was not related to the complainants.

(28)

The three replies were examined in relation to the complaint and the comments received. It was found that the domestic consumption in South Africa is relatively small, only around 435 000 tonnes, the production capacity of the South African producer is around 10 % of the Belarusian producer and the main raw material used is iron ore whereas the Belarusian exporting producer is using metal scrap. Therefore, the Commission decided to disregard South Africa as a potential analogue country.

(29)

Brazil has a domestic consumption of around 3,5 million tonnes and imports (around 95 % originating in Turkey), subject to an ad valorem duty of 12 %, represents around 5,5 % of the Brazilian consumption. The production process of the producer offering to cooperate is based on metal scrap and pig iron, whereas the Belarusian exporting producer uses mainly metal scrap and its production volume is around 50 % of the Belarusian producer.

(30)

The USA's domestic consumption was around 7,7 million tonnes. There were at least eight domestic producers. Imports restrictions were in force (6) but imports represented nevertheless around 23 % of the total consumption, mainly originating from Turkey and Japan. The US producer used a similar production process than the Belarusian producer. Its production volume was around 52 % of that of the Belarusian producer.

(31)

On the basis of this analysis, the Commission considered that market situation found in Brazil and in the USA are sufficiently competitive. Therefore, the Commission decided to select Brazil and the USA as potential analogue country.

(32)

The analogue country questionnaires were sent to the two above mentioned cooperating producers. However, after having received the analogue country questionnaire, the Brazilian producer informed the Commission of its decision to withdraw its cooperation in the investigation. The Commission received an appropriate response from the USA producer.

(33)

The Commission observed that the USA cooperating producer was related with one of the complainants, as alleged by the Belarusian exporting producer. However, even if a producer in the analogue country is related to a Union producer, such a link does not invalidate or affect the determination of the normal value (7).

(34)

The Commission concluded at this stage of the proceeding that the USA is an appropriate analogue country under Article 2(7)(a) of the basic Regulation.

(35)

The information received from the cooperating producer in the analogue country was used as a basis for the determination of the normal value, pursuant to Article 2(7)(a) of the basic Regulation.

(36)

First, the Commission examined whether, in accordance with Article 2(2) of the basic Regulation, the total volume of the sales of the like product to independent customers in the USA was representative. To this end, the total sales volume was compared to the total volume of the product concerned exported by the Belarusian exporting producer to the Union. On that basis, the Commission found that the like product was sold in representative quantities on the US market.

(37)

Second, the Commission identified the product types sold domestically by the producer in the analogue country that were identical or directly comparable with the types sold for export to the Union by the Belarusian exporting producer. It compared on a product type basis the sales volume in US with the exports by the Belarusian exporting producer to the Union. This comparison showed that all product types were sold in representative quantities in the US.

(38)

The Commission subsequently examined for the analogue country producer whether each type of the like product sold domestically could be considered as being sold in the ordinary course of trade pursuant to Article 2(4) of the basic Regulation. This was done by establishing for each product type the proportion of profitable sales to independent customers on the domestic market during the investigation period. The sales transactions were considered profitable where the unit price was equal or above the cost of production. The cost of production of each product type produced by the US producer during the investigation period was therefore determined.

(39)

Where the sales volume of a product type, sold at a net sales price equal to or above the calculated cost of production, represented more than 80 % of the total sales volume of that type, and where the weighted average sales price of that type was equal to or higher than the cost of production, normal value was based on the actual domestic price. This price was calculated as a weighted average of the prices of all domestic sales of that type made during the investigation period. For all product types sold by the analogue country producer, the volume of profitable sales of a product type represented 80 % or more of the total sales volume of that type.

(40)

Finally, all the product types exported from Belarus to the Union were also sold in the USA. Therefore, there was no need to construct the normal value for any product types exported.

(41)

The Belarusian cooperating exporting producer exported to the Union either through related traders located in Austria, Lithuania, Poland, Germany and the USA or sold directly to the first independent customers. As indicated in recital 13 above the three main related traders were verified on spot.

(42)

For the direct sales from exporting producer to the first independent customers, the export price was the price actually paid or payable for the product concerned when sold for export to the Union, in accordance with Article 2(8) of the basic Regulation.

(43)

For the sales made through related traders acting as an importer, the export price was established on the basis of the Article 2(9) of the basic Regulation. In this case, adjustments to the price were made for all costs incurred between importation and resale, including selling, general and administrative (SG&A) expenses (ranging from around 1 % to 2,5 %), and for a reasonable margin of profit for the traders involved in the sale (below 1 %).

(44)

The Commission compared the normal value and the export price of the sampled exporting producer on an ex-works basis.

(45)

Where justified by the need to ensure a fair comparison, the Commission adjusted the normal value and/or the export price for differences affecting prices and price comparability, in accordance with Article 2(10) of the basic Regulation.

(46)

As regards export prices of the exporting producer, adjustments were made for transport, insurance and handling (ranging from around 4 % to 7,5 % depending on the related trader concerned or the exporting producer), credit cost and bank charges (ranging from 0 % to 1,5 % depending on related trader concerned or the exporting producer), representing in total about 8 % of the value of sales. Concerning domestic prices of the analogue country producer, adjustments were made for domestic transportation costs and handling (on average 5,3 % of the value of sales), as well as credit costs (at a yearly rate of 1,15 %).

(47)

The comparison was made for 100 % of the product types exported and sold in the Union by the Belarusian exporting producer and its related traders.

(48)

During a hearing held on 14 October 2016, the representatives of the Belarusian exporting producer claimed the normal value should be adjusted to reflect the average prices of scrap purchases and its consumption ratio in the production of the product concerned in Belarus.

(49)

The Commission, first, underlines that normal value has not been constructed, but was based only on sales, so that such an adjustment is excluded at the level of establishing normal value.

(50)

The Commission, second, understands that this company may have wanted to raise an issue of fair comparison and thus analysed this claim under Article 2(10)(k). The investigation showed that the Belarusian exporting producer purchased scrap material either from local suppliers or from Russian suppliers.

(51)

The Commission notes, that as a non-market economy country, prices and costs in Belarus are considered to be distorted. Thus, granting adjustments relaying on Belarusian prices and cost as well as on the resulting consumption ratio would mean using the distorted Belarusian price. Therefore, the Commission rejected this claim in this regard. Even if the Commission had to demonstrate actual distortion of Belarusian prices, the Commission observes that the complaint has established prima facie that such distortions exist, and the Belarusian exporter has not provided substantiated proof to counter those allegations.

(52)

With regard to scrap imported from Russia the Commission observed during the investigation that the price of the raw material in the USA and in the Russian Federation is similar (8). Moreover, the investigation has shown that the US scrap consumption ratio is similar to the ones reported by the Belarusian exporting producer, i.e. between 60-70 %. Therefore, the Commission provisionally concluded that the scrap purchase price in the USA does not affect price comparability. The claim is provisionally rejected.

(53)

For the cooperating exporting producer, the Commission compared the weighted average normal value of each type of the like product in the analogue country (see recital 47 above) with the weighted average export price of the corresponding type of the product concerned, in accordance with Article 2(11) and (12) of the basic Regulation. On this basis, the provisional weighted average dumping margins expressed as a percentage of the CIF Union frontier price, duty unpaid, is 58,4 %.

(54)

The level of cooperation is high because the imports of the cooperating exporting producer constituted the totality of the total exports to the Union during the investigation period. On this basis, the Commission decided to base the residual dumping margin at the level of the cooperating exporting producer with the highest dumping margin.

(55)

The provisional dumping margins, expressed as a percentage of the CIF Union frontier price, duty unpaid, are as follows:

(56)

The like product was manufactured by 31 Union producers. They are deemed to constitute the Union industry within the meaning of Article 4(1) and Article 5(4) of the basic Regulation and will hereinafter be referred to as the ‘Union industry’.

(57)

All available information concerning the Union industry, such as information provided in the complaint, data collected from Union producers and their association before and after initiation of the investigation and the questionnaire responses of the sampled Union producers, was used in order to establish the total Union production for the investigation period.

(58)

On this basis, the total Union production was estimated to be around 12,7 million tonnes during the IP. This figure includes the production of all Union producers, both the sampled producers and the non-sampled producers, calculated on the basis of verified data submitted by the complainant.

(59)

As indicated in recital 8 above, the five Union producers included in the sample represent 22,4 % of the estimated total Union production of the like product. In this respect, it should be taken into account that the Union production of the product concerned is very fragmented, which is illustrated by the high number of Union producers mentioned in recital 56 and therefore the sample of five producers is representative for the Union industry.

(60)

The Belarusian exporting producer claimed that there was insufficient prima facie evidence of the existence of injury in the complaint, which therefore should not have been accepted. The argument hinges in particular on a wrongful presentation in the complaint of the alleged artificially low scrap procurement costs from which the exporting producer in question benefits. The Belarusian producer claimed that such misconception invalidated the complaint entirely.

(61)

As mentioned in recital 19 above, Belarus is a non-market economy country and, as a result, normal value was determined on the basis of the analogue country methodology. Therefore, no determination on whether scrap was procured at artificially low prices by the Belarusian producer was necessary. The Commission fails to see the substance or relevance of this claim and its relevance to the determination of injury to the EU industry.

(62)

Union consumption was established on the basis of the total sales volume of the Union industry on the Union market and the total imports. Union consumption decreased between years 2012 and 2013 but returned to its 2012 level in 2014 and moderately increased further in the IP. Union consumption increased overall by 3 % over the period considered.

(63)

During the period considered the imports into the Union from Belarus were found to have developed in terms of volume and market share as follows:

(64)

Import volumes from Belarus almost tripled over the period considered. The market share of imports from Belarus also increased over the period considered, from 1,8 % in 2012 to 5 % in the IP.

(65)

The table below shows the average price of imports from Belarus:

(66)

The average import prices from Belarus decreased during the period considered, following a decrease of prices of scrap, which is used as raw material both in Belarus and in the Union. However, the 25 % decrease in the prices of Belarusian exports to the EU was sharper than the decrease in prices of the sampled Union producers and of average prices of other major exporters of the product concerned to the Union over the same period. As a result, in the IP, prices of imports from Belarus were lower than prices of the Union producers and average prices of imports from any of the other major third countries present on the market.

(67)

In order to determine whether there was price undercutting during the IP, and to what extent, the weighted average sales prices per product type of the sampled Union producers charged to unrelated customers on the Union market, adjusted to an ex-works level by deducting the actual delivery costs (0,5 %-5 %), commissions (0 %-1,5 %), discounts (0,9 %-2,3 %) and credit costs (0,2 %-0,5 %), were compared to the corresponding weighted average prices per product type of the dumped imports from the Belarusian producer to the first independent customer on the Union market, established on a CIF basis.

(68)

The result of the comparison, when expressed as a percentage of the sampled Union producers' turnover during the IP, showed an undercutting margin of 4,5 %. The lower prices of the dumped imports compared to the Union prices explain the significant increase in Belarusian import volume and in the market share held by the imports from Belarus from 2014 onwards.

(69)

The Belarusian exporting producer submitted certain documents for the comparison of the sales prices of the Polish and Belarusian producers with the aim to claim that Belarusian prices were actually higher in the IP than the prices of the Union producers. In this regard it is recalled that the undercutting calculations and micro indicators concerning price level are based on the data collected from the sampled Union producers while the data submitted by the Belarusian company referred to non-sampled Polish producers. Therefore, the submitted data have no influence on the Commission findings with regard to price undercutting and microeconomic indicator trends in the period considered as described in recital 83. Furthermore, these are aggregated data of all the sampled companies and all their unrelated sales transactions which are taken into account for establishing the undercutting and micro indicators trends. Nevertheless, the Commission confirms that during the IP Belarusian prices undercut each and every single sampled EU producer.

(70)

In accordance with Article 3(5) of the basic Regulation, the examination of the impact of the dumped imports from Belarus on the Union industry included an evaluation of all economic indicators having a bearing on the state of the Union industry during the period considered.

(71)

As mentioned in recital 59, sampling was used for the examination of the possible injury suffered by the Union industry.

(72)

For the purpose of the injury analysis, the Commission distinguished between macroeconomic and microeconomic injury indicators. In this regard, the economic situation of the Union industry is assessed on the basis of (a) macroeconomic indicators, namely production, production capacity, capacity utilisation, sales volume, market share and growth, employment, productivity, magnitude of the actual dumping margin and recovery from past dumping, for which the data was collected at the level of the total Union industry; and on the basis of (b) microeconomic indicators, namely average unit prices, unit cost, profitability, cash flow, investments, return on investment and ability to raise capital, stocks and labour costs, for which the data was collected at the level of the sampled Union producers.

(73)

All available information concerning the Union industry including information provided in the complaint, data collected from the Union producers before and after the initiation of the investigation, and the questionnaire responses of the sampled Union producers, was used in order to establish the macroeconomic indicators and in particular the data pertaining to the non-sampled Union producers.

(74)

The microeconomic indicators were established on the basis of information provided by the sampled Union producers in their questionnaire replies.

(75)

The trends for Union production, production capacity and the utilisation of the capacity developed as follows during the period considered:

(76)

The Union production volume decreased 5 % during the period considered. Taking into account that production capacity remained constant during that period, the decrease in output resulted in a reduction of the capacity utilisation by 4 percentage points from 71 % in 2012 to 67 % in the IP.

(77)

The sales of the Union producers included sales to related companies. These sales to related companies represented, over the period considered, around 10 % of the Union consumption. Sales volume, market share and growth were therefore assessed separately for related sales and free market (unrelated sales). With regard to related sales it is confirmed that they are directed to the related users not to the related trading companies therefore they are not double counted in the calculation of the total Union consumption.

(78)

The trends concerning sales volumes, market share and growth developed as follows during the period considered:

(79)

The Union industry sales volume to unrelated customers decreased by 6 % in the period concerned, situation which is reflected also in the 7 percentage points decrease of market share between 2012 and the IP. This occurred in spite of an increase in consumption in the Union market during the same period. Rapid decrease in volumes of sales took place between 2012 and 2013 when the sales volume trend followed exactly the trend in consumption — and the Union industry was able to maintain the same market share. However, in the period between 2013 and the IP the situation changed completely. Union market grew by 10 % in this period while in the same time the Union industry lost 7 percentage points of its market share. At the same time the volume of Belarusian imports and their market share increased rapidly. This demonstrates that the Union industry could not benefit from the growth in Union consumption due to the increasing market share of dumped imports.

(80)

In line with the decline in production and sales, it was observed that the level of the Union industry's employment also decreased by 2 % between 2012 and the IP. However, this reduction of employment did not result in increase in productivity, measured as output per person employed per year, as the drop in production volume in the period considered was deeper than the reduction in employment.

(81)

The dumping margin of the Belarusian exporting producer is considerable (see recital 55 above). Given the volume, market share and prices of the dumped imports from Belarus, discussed above, the impact on the Union industry of the actual dumping margin cannot be considered to be negligible.

(82)

As no finding on dumped imports of the product concerned was made previously, the Union industry is not recovering from any past dumping practices regarding the product concerned.

(83)

The average sales prices of the sampled Union producers to unrelated customers have been depressed in the first part of the period considered (2012-2013) by the impact of the ‘VAT fraud scheme’ (see recitals 106 to 111). In the second part of the period considered (2014-IP), they have been depressed by the dumped imports from Belarus. During the period considered the prices in the Union decreased by 22 % from 2012 to the IP. The price decrease reflects a general lowering trend in the worldwide cost of the main raw material. However, due to the further price depression exerted by the dumped imports from Belarus, where the decrease in prices was deeper than only reflecting the raw material cost, the Union producers could not return prices depressed by the VAT fraud scheme to normal and undistorted levels, benefitting from the reduction in the costs of the main raw material, but had to keep prices lower than under normal competition.

(84)

In the period considered, the costs of the Union industry decreased by 20 % which was less than decrease in prices. This is explained by higher energy and labour costs. As a result, over the period considered profitability of the Union industry deteriorated.

(85)

During the period considered the Union producers' cash flow, investment, return on investment and their ability to raise capital developed as follows:

(86)

The profitability of the sampled Union producers is expressed as the pre-tax net profit of the sales of the like product to customers in the Union as a percentage of the turnover of those sales. The sampled Union producers were profitable in 2012, but became loss-making from 2013 onwards. What is more, their profitability reaches its lowest level in the IP which correlates with the highest volumes of the imports from Belarus and its lowest price level in the whole period considered.

(87)

Cash flow, which is the ability of the industry to self-finance its activities, although positive throughout the whole period considered, deteriorated over the whole period considered.

(88)

The Union producers were still able to invest over the whole period considered but the evolution of profitability and cash flow adversely affected also investments which over the period considered decreased by 29 %. Furthermore, the return on investments is constantly negative from 2013 onwards following the trend in profitability.

(89)

In light of the above, it can be concluded that the financial performance of the sampled Union producers was negative during the IP.

(90)

The level of stocks of the sampled Union producers decreased by 25 % during the period considered. However, the ratio of stocks to the production volume remains stable in the period considered (1 % to 1,5 %) — the stock level follows decreasing trend in production volume.

(91)

The average labour costs of the sampled Union producers increased modestly during the period considered. Labour costs represented less than 10 % of the total costs of production. Therefore labour costs do not represent a determining factor in the evolution of the cost of production.

(92)

The investigation showed that the Union industry did not benefit from the increase in consumption during the period considered. To the contrary, the Union industry suffered a 6 % drop in the sales volumes in the period considered and its market share decreased by 6 percentage points (against the background of a 3 % increase of the total consumption). These trends are more clearly visible when the period from 2013 to the IP is taken into consideration, when import volumes from Belarus were growing rapidly and increasing its market share. Within the same period, the Union industry lost 7 percentage points of market share, in a scenario of increasing consumption (+10 %). The Union industry suffered also a 5 % decrease in production output in the period considered, which resulted in a drop of capacity utilisation from 71 % to 67 %.

(93)

Furthermore, due to increased unfair competition from dumped imports, the Union industry had to reduce its prices on average by 22 % in the period considered which has resulted in a decline from 1,3 % profit in 2012 to 2,1 % loss in the IP despite the reduction of costs and employment.

(94)

Finally, other financial indicators such as return on assets, cash flow and investments were also adversely affected in the period considered.

(95)

In light of the foregoing, it is provisionally concluded that the Union industry suffered material injury within the meaning of Article 3(5) of the basic Regulation.

(96)

In accordance with Article 3(6) and (7) of the basic Regulation, the Commission examined whether the dumped imports from Belarus had caused injury to the Union industry to a degree sufficient to be considered as material. Known factors other than the dumped imports, which could at the same time be injuring the Union industry, were also examined to ensure that the possible injury caused by these other factors was not attributed to the dumped imports.

(97)

The investigation showed that the Union consumption increased by 3 % over the period considered and at the same time the volume of imports originating in Belarus increased significantly. Over the last 2 years of the period considered the volume of Belarusian imports and its share in the Union market increased by 175 %. The increase of dumped imports coincided with a drop in the market share of the Union industry.

(98)

With regard to the price pressure prevailing on the Union market during the period considered, it was found that the average import prices from Belarus were decreasing rapidly especially in the last 2 years of the period considered. In the IP, the level of prices of Belarusian imports was already lower than the average sales prices of the Union industry and sales prices of imports from the third countries present on the Union market.

(99)

Due to the price pressure exerted by the increasing volumes of Belarusian imports, the Union industry was not able to cover its costs.

(100)

Based on the above, it is concluded that the surge of dumped imports from Belarus at prices undercutting those of the Union industry caused material injury suffered by the Union industry.

(101)

According to data of the sampled Union producers, export volumes to unrelated customers in third countries increased by 5 % during the period considered. Thus, it can be concluded that this part of sales activity of the Union industry could not be a cause of the material injury found.

(102)

Union industry sales to related parties increased by 14 % during the period considered at price levels which were consistently above those of sales to unrelated parties. Even though these prices are transfer prices, it can be concluded that this part of sales activity of the Union industry could not be the cause of the material injury found. On the contrary, the increase in these sales and the fact those prices are higher than prices to unrelated customers suggest that the injury suffered by the Union industry could have been even more substantial had it not been for these sales to related parties.

(103)

It should also be stressed that undercutting and underselling margins were established by comparing Belarus import prices with sales prices of the Union producers to unrelated customers. Thus, the sales to related companies did not affect the determination of undercutting and underselling.

(104)

In the period considered the individual market shares of the third countries increased only marginally with the exception of Ukraine where the increase in market share was substantial in relative terms but still the market share of this country in absolute terms in negligible. It should be also noted that throughout the period considered the prices of imports from the third countries were on average always higher than the prices of the Union industry. The only exporting country with lower average prices than the Union industry was Belarus in the IP which was the same year when volumes of imports from Belarus increased most rapidly. Therefore, it is concluded that even if imports from third countries may have had some impact on the situation of the Union industry, imports from Belarus clearly remained the main cause of injury.

(105)

The main cost factor in the production of the product concerned is iron and steel scrap. During the period concerned, the price of this raw material decreased globally. The Union producers producing billets from scrap experienced a decrease in the cost of raw material between 23 % and 32 % and Union producers using billets as raw material of around 24 %. According to the data from the sampled Union producers, the total cost of manufacturing of the product concerned decreased by 20 % in the period considered, the decrease in raw material prices was somewhat offset, mainly by higher labour cost (around 10 % on average). It can be therefore concluded that the costs evolution could not be a cause of the material injury found. On the other hand due to the price depression, mainly from dumped imports from Belarus, the Union industry could not benefit form decreasing costs and these cost savings were not reflected in its financial indicators.

(106)

The Belarusian exporting producer claimed that one of the important factors affecting the performance of the Union industry in the period considered was the so-called ‘VAT fraud scheme’. The scheme affected mainly the Polish market. In 2012, the Euro football championship was organised in this country and, at the time, the construction sector was booming and the demand for rebars was very high. Some unscrupulous traders allegedly operated in the market taking advantage of this opportunity and setting up a VAT carousel fraud. Shell companies were created in Poland purchasing rebar from another member State and reselling it in Poland with the local VAT charged on the invoice. However, these shell companies never accounted for the VAT collected. Allegedly due to the low prices on the Polish market caused by such fraudulent trading companies, the Polish producers lost market share and experienced financial losses.

(107)

Indeed, it was confirmed that the above described VAT fraud had a major impact on the rebar market in Poland. Many regular steelmakers faced a decline in their economic performance due to the market disruption. Some of the companies had even suspended rebar production for a couple of weeks at the beginning of January 2013 as a result of such illegal activities. However, it has to be stressed that there is no overlap between the VAT fraud scheme and the dumped imports from Belarus in terms of timing and impact. The fraud scheme ended when the Polish government applied reverse charge VAT mechanisms as from 1 October 2013. Its impact is visible in the sudden drop of the Union industry sales and production volumes in 2013. However, the situation went back to normal in 2014 while in the meantime the increased flow of dumped imports started adversely affecting the level of prices, market share and financial performance of the Union industry. Hence, the impact of the VAT fraud on the economic situation of the Polish manufacturers is limited to the years where import from Belarus into the Union market was relatively low in volume and relatively high priced. There was also no spill-over effect on the Polish rebar market when the fraudsters ceased their activities. These findings are actually confirmed by the additional submission (and supporting evidence) provided by the Belarusian exporting producer concerning the situation on the Polish market during and after the VAT fraud scheme was active. It is therefore manifest that this issue can be separated from the effects of the dumped imports and is not breaking the causal link between the dumped imports from Belarus and injury suffered by the Union industry.

(108)

The Belarusian exporting producer further claimed that as a result of the VAT fraud scheme described above, certain producing companies located in Latvia and Slovakia went bankrupted. The company indicates therefore that negative trends in the production and sales volumes of the Union industry are caused by the disappearance of certain companies from the market which is not linked with the export activity of the Belarusian exporting producer.

(109)

With regard to this claim, it should be stressed that the estimation of the macro indicators shown in the recitals 75 to 82 did not take into account the companies which did not exist in the IP. For the companies which did not receive questionnaires, information relevant to macro indicators was estimated on the basis of the actual production output in the IP Thus, disappearance of the companies in question from the market is not reflected in the indicators showing the negative development of production and sales volumes of the Union industry. It should be stressed that if they were taken into account the overall injury picture would have been even worse.

(110)

Finally, the Belarusian exporting producer in question claims that the volumes and import prices of imports from this country in the years 2014 and the IP are not representative of the ‘normal’ sales strategy of the company. The company claims that its increased export activity in the Union in these years was a result of the gap between demand and supply of the product concerned on the markets of Poland and the Baltic States, which resulted from the disturbances caused by the VAT frauds. The company claims that the Commission should investigate volumes and level of prices of imports from Belarus in the post IP period. The company claims that such investigation of post-IP data was found justified by the Commission in the recent proceeding concerning imports of grain oriented electrical steel (‘GOES’).

(111)

With regard to the above it is first noted that the existence of a gap between demand and supply of the product concerned is not confirmed by the findings of the investigation. The VAT fraud scheme indeed adversely affected the performance of the producers in Poland in 2013 but its impact was linked with the low level of prices of the product concerned sold by the fraudulent trading companies, not with shortages of supply. After October 2013 this adverse effect was removed as explained in recital 107. The Union producers located in Poland could then freely use their available capacity of production (over 40 %) to supply the customers both in Poland and in Baltic States. Their failure to increase their sales and market share in the year 2014 and IP resulted from competition of sharply increasing dumped imports from Belarus. Secondly, it is noted that the claim to examine post IP data came very late in the procedure. The Commission will collected post-IP data and consider whether or not review of post-IP developments is appropriate in this case at the definitive stage of the investigation. However, already at this stage it should be noted that circumstances in this proceeding cannot be seen as similar to those in the referred GOES investigation.

(112)

It has been demonstrated that there was a substantial increase in the volume and market share of the dumped imports originating in Belarus in the period considered. In addition, it was found that these imports were undercutting the prices charged by the Union industry on the Union market in the IP.

(113)

Increase in volume and market share of the dumped imports from Belarus coincided with the deterioration of the financial situation of the Union industry, which is especially visible as of 2014. Thus, despite the recovery in consumption, the Union industry was unable to increase its sales and prices, and consequently financial indicators such as profitability remained negative.

(114)

The examination of the other known factors which could have caused injury to the Union industry revealed that these factors were not such as to break the causal link established between the dumped imports from Belarus and the injury suffered by the Union industry.

(115)

Based on the above analysis, which has distinguished and separated the effects of all known factors on the situation of the Union industry from the injurious effects of the dumped imports, it is provisionally concluded that the dumped imports from Belarus have caused material injury to the Union industry within the meaning of Article 3(6) of the basic Regulation.

(116)

In accordance with Article 21 of the basic Regulation, it has been examined whether, despite the provisional finding of injurious dumping, compelling reasons exist for concluding that it is not in the Union interest to adopt measures in this particular case. The analysis of the Union interest was based on an appreciation of all the various interests involved, including those of the Union industry, importers, and users.

(117)

The Union industry is composed of more than 65 producers, located in different Member States of the Union, and employing directly more than 4 600 people in relation to the like product during the IP.

(118)

It has been established that the Union industry suffered material injury caused by the dumped imports from Belarus. It is recalled that the Union industry could not fully benefit from the growing consumption and the financial situation of the Union industry remained fragile.

(119)

It is expected that the imposition of anti-dumping duties will restore fair trade conditions on the Union market, allowing the Union industry to align its prices of the like product to the costs of production.

(120)

It can also be expected that the imposition of measures will enable the Union industry to regain at least part of the market share lost during the period considered, with a positive impact on its profitability and overall financial situation. The imposition of measures would enable the industry to maintain and further develop its efforts to be cost efficient.

(121)

Should measures not be imposed, further losses in market share could be expected and the Union industry's profitability would deteriorate.

(122)

It is, therefore, provisionally concluded that the imposition of anti-dumping measures on imports originating in Belarus would be in the interest of the Union industry.

(123)

Cooperation of the users of the product concerned was low. Out of eight known users contacted upon the initiation of the procedure only one company was interested in cooperating. However, even this company failed to reply to the user questionnaire send by the Commission.

(124)

In the case of importers there were six companies which replied to the sampling questionnaire included in the Notice of Initiation. Three of these companies, representing 81 % of the volume of imports of the product concerned reported by the respondents, were subsequently chosen to the sample.

(125)

Only two out of three sampled importers replied to the questionnaires sent by the Commission. One of them indicated that the company in question is not just an importer of the product concerned but actually a user and should be treated as such in the procedure.

(126)

The importer started to procure the product concerned during the IP of which 78 % was imported from Belarus and it did so with a small profit margin. That illustrates that this importer banked on the opportunity of low import prices from Belarus and created a new customer base. The actions of this importer can therefore not be considered as responding to established trade flows. It will therefore look for other trade opportunities when the market situation changes after the imposition of measures.

(127)

The user made losses on the sales of downstream finished products containing rebars. The latter were procured circa half from the Union industry, a third from Belarus and the rest from third countries such as China and Turkey. This user therefore sources where appropriate in terms of price, availability and quality. The proportion of purchases from Belarus may be affected by the intended measures and somewhat limiting or altering the choice of procured rebars, but does not seem to affect this user fundamentally. The cause of the losses seems structural and unrelated to the raw material sourcing from Belarus.

(128)

Both companies, despite their apparently different role in the procedure, raised nevertheless the same point against the imposition of the measures: (a) insufficient capacity of the Union producers to satisfy the demand of the Union market; (b) insufficient range of products produced by the Union producers; and (c) difficulties in switching between suppliers as allegedly different Member States require different homologation certificates for the product concerned.

(129)

The first claim is not supported by the provisional findings — capacity utilisation of the Union industry is at the level of 67 % which leaves much more free capacity than the whole imports of Belarus to the Union.

(130)

The second claim was not substantiated. On the other hand questionnaire replies of the sampled Union producers show clearly that they are producing and selling the full range of product types.

(131)

With regard to the third claim, it should be stressed that Union producers are already supplying various Member States without any apparent difficulty.

(132)

One other cooperating, not sampled, importer raised in his separate submission the issue of the cartel allegedly existing among the Union producers. However, the company did not provide any documents supporting this claim. The issue of alleged cartel agreement was subsequently raised by the Belarusian exporting producer. The Commission is assessing the information provided by the Belarusian exporting producer. However, as this came very late in the procedure, this point cannot be addressed and concluded at this stage. In any event, it is noted that information provided by the company seems to relate to accusations potentially involving only one company which is included in the sample of the Union producers. Furthermore, the verification procedure in question initiated by the Italian Competition Authority is not yet concluded (9). The Commission will investigate this claim in more details at the definitive stage of the investigation.

(133)

Finally, one other user, who did not make himself known to the Commission at an earlier stage of the procedure, submitted a user questionnaire reply at the end of the provisional stage of the investigation. The submission came very late in the procedure for the provisional stage of the investigation and therefore could not be analysed and addressed at this stage. The Commission will examine and analyse this questionnaire reply in detail at the definitive stage of the investigation.

(134)

Taken the above into consideration, the Commission takes at this point in time the view that the overall impact on users and importers, and the possible restrictive effects on competition are limited.

(135)

In view of the above, it is provisionally concluded that overall, based on the information concerning the Union interest, there are no compelling reasons against the imposition of measures on imports of the product concerned from Belarus.

(136)

Any negative effects on the unrelated users and importers are mitigated by the availability of alternative sources of supply.

(137)

Moreover, when considering the overall impact of the anti-dumping measures on the Union market, the positive effects, in particular on the Union industry, appear to outweigh the potential negative impacts on the other interest groups.

(138)

In view of the conclusions reached with regard to dumping, injury, causation and Union interest, provisional anti-dumping measures should be imposed in order to prevent further injury being caused to the Union industry by the dumped imports.

(139)

For the purpose of determining the level of these measures, account was taken of the dumping margins found and the amount of duty necessary to eliminate the injury suffered by the Union industry.

(140)

When calculating the amount of duty necessary to remove the effects of the injurious dumping, it was considered that any measure should allow the Union industry to cover its costs of production and obtain a profit before tax that could be reasonably achieved by an industry of this type under normal conditions of competition, i.e. in the absence of dumped imports, on sales of the like product in the Union.

(141)

In order to determine the target profit, the Commission considered the profits made on unrelated sales which are used for the purpose of determining the injury elimination level.

(142)

Within the whole period considered only in 2012 the Union industry was profitable but the minimal profit of 1,3 % achieved in that year was affected by the impact of the ‘VAT fraud scheme’ and subsequent price depression as explained in recitals 83 and 106 to 111. Therefore, the profit achieved in 2012 cannot be considered a reasonable ‘target profit’ which would enable financial recovery and encourage investments.

(143)

The target profit proposed by the complainant amounted to 9,9 % and was based on the target profit used in the recent antidumping case against the imports of closely related steel product i.e. wire rods. However, the Commission considers it more appropriate to use the target profit based on the findings of the more recent case concerning high fatigue performance steel concrete reinforcement bars i.e. 4,8 %. It is noted that this profit margin, unlike the one proposed by the complainant, was achieved in 2012 that is within the period considered in this case. Furthermore, the two products are very similar, are produced partially by the same companies and with the use of the same production lines.

(144)

On this basis, the injury elimination level was calculated as a comparison of the weighted average price of the dumped imports, as established for the price undercutting calculations in recital 68 above, and the non-injurious price of the Union industry for the like product.

(145)

Any difference resulting from this comparison was then expressed as a percentage of the average total CIF import price.

(146)

In the light of the foregoing, it is considered that, in accordance with Article 7(2) of the basic Regulation, provisional anti-dumping duties should be imposed in respect of imports of rebars originating in Belarus at the level of the lower of the dumping and the injury margins, in accordance with the lesser duty rule.

(147)

On the basis of the above, the provisional anti-dumping duty rates have been established by comparing the injury margins, dumping margins. Consequently, the proposed anti-dumping duties are as follows:

(148)

Any claim requesting the application of these individual company anti-dumping duty rates (e.g. following a change in the name of the entity or following the setting up of new production or sales entities) should be addressed to the Commission (10) forthwith with all relevant information, in particular any modification in the company's activities linked to production, domestic and export sales associated with, for example, that name change or that change in the production and sales entities. If appropriate, the Regulation will accordingly be amended by updating the list of companies benefiting from individual duty rates.

(149)

In order to ensure a proper enforcement of the anti-dumping duty, the residual duty level should not only apply to the non-cooperating exporting producers but also to those producers which did not have any exports to the Union during the IP.

(150)

In the interests of sound administration, the Commission will invite the interested parties to submit written comments and/or to request a hearing with the Commission and/or the Hearing Officer in trade proceedings within a fixed deadline.

(151)

The findings concerning the imposition of provisional duties are provisional and may be amended at the definitive stage of the investigation.

(a)

request disclosure of the essential facts and considerations on the basis of which this Regulation was adopted;

(b)

submit their written comments to the Commission; and

(c)

request a hearing with the Commission and/or the Hearing Officer in trade proceedings.

20.12.2016   

EN

Official Journal of the European Union

L 345/27

(1)

Regulation (EU) No 549/2013 sets up the European System of Accounts 2010 (the ‘ESA 2010’) which establishes a programme setting out the time limits by which Member States are to transmit to the Commission the accounts and tables to be compiled in accordance with the methodology set out in that Regulation.

(2)

Pursuant to Article 4 of Regulation (EU) No 549/2013, the data covered by that Regulation is subject to the quality criteria set out in Article 12(1) of Regulation (EC) No 223/2009 of the European Parliament and of the Council (2). Member States are to provide the Commission with a report on the quality of the transmitted data on national and regional accounts.

(3)

Temporary derogations were granted to Member States pursuant to the Commission Implementing Decision 2014/403/EU (3). Therefore, the content of the quality reports that the Commission requires Member States to submit should be adapted in accordance with those derogations. The requirement to provide quality reports should be phased in gradually by 2021 to allow Member States time to complete the major adaptations necessary for the introduction of ESA 2010 in the national statistical systems.

(4)

In accordance with Article 4(3) of Regulation (EU) No 549/2013 and for the purposes of applying the quality criteria referred to in Article 4(1) of that Regulation, the modalities, structure, periodicity and assessment indicators of the quality reports to be provided by Member States should be defined by the Commission by means of implementing acts.

(5)

As the information in the quality reports on national and regional accounts should be based on the European Statistical System standards on quality reporting published by the Commission (Eurostat), the Annex to this Regulation should be drawn up in line with those standards. Information about the ESA 2010 implementation already provided by Member States should be reused by the Commission and should not be requested in the quality reports.

(6)

The measures provided for in this Regulation are in accordance with the opinion of the European Statistical System Committee,

20.12.2016   

EN

Official Journal of the European Union

L 345/37

(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,

20.12.2016   

EN

Official Journal of the European Union

L 345/39

(1)

Commission Regulation (EC) No 533/2007 (2) opened annual tariff quotas for imports of poultrymeat products.

(2)

For some quotas, the quantities covered by the applications for import licences lodged from 1 to 7 December 2016 for the subperiod from 1 January to 31 March 2017 exceed those available. The extent to which import licences may be issued should therefore be determined by establishing the allocation coefficient to be applied to the quantities requested, calculated in accordance with Article 7(2) of Commission Regulation (EC) No 1301/2006 (3).

(3)

The quantities covered by the applications for import licences lodged from 1 to 7 December 2016 for the subperiod from 1 January to 31 March 2017 are, for some quotas, less than those available. The quantities for which applications have not been lodged should therefore be determined and these should be added to the quantity fixed for the following quota subperiod.

(4)

In order to ensure the efficient management of the measure, this Regulation should enter into force on the day of its publication in the Official Journal of the European Union,

20.12.2016   

EN

Official Journal of the European Union

L 345/42

(1)

Commission Regulation (EC) No 1385/2007 (2) opened annual tariff quotas for imports of poultrymeat products.

(2)

For some quotas, the quantities covered by the applications for import licences lodged from 1 to 7 December 2016 for the subperiod from 1 January to 31 March 2017 exceed those available. The extent to which import licences may be issued should therefore be determined by establishing the allocation coefficient to be applied to the quantities requested, calculated in accordance with Article 7(2) of Commission Regulation (EC) No 1301/2006 (3).

(3)

The quantities covered by the applications for import licences lodged from 1 to 7 December 2016 for the subperiod from 1 January to 31 March 2017 are, for some quotas, less than those available. The quantities for which applications have not been lodged should therefore be determined and these should be added to the quantity fixed for the following quota subperiod.

(4)

In order to ensure the efficient management of the measure, this Regulation should enter into force on the day of its publication in the Official Journal of the European Union,

20.12.2016   

EN

Official Journal of the European Union

L 345/45

(1)

Commission Implementing Regulation (EU) 2015/2078 (2) opened annual tariff quotas for imports of poultrymeat products originating in Ukraine.

(2)

For the quota with order number 09.4273, the quantities covered by the applications for import licences lodged from 1 to 7 December 2016 for the subperiod from 1 January to 31 March 2017 exceed those available. The extent to which import rights may be allocated should therefore be determined and an allocation coefficient laid down to be applied to the quantities applied for, calculated in accordance with Article 6(3) in conjunction with Article 7(2) of Commission Regulation (EC) No 1301/2006 (3).

(3)

In order to ensure efficient management of the measure, this Regulation should enter into force on the day of its publication in the Official Journal of the European Union,

20.12.2016   

EN

Official Journal of the European Union

L 345/48

(1)

Section I.1 of Annex I, Section II.1 of Annex II and Section III.1 of Annex III to Directive 2008/68/EC refer to provisions set out in international agreements on the inland transport of dangerous goods by road, rail and inland waterways as defined in Article 2 of that Directive.

(2)

The provisions of these international agreements are updated every two years. Consequently, the last amended versions of these agreements shall apply as from 1 January 2017, with a transitional period up to 30 June 2017.

(3)

Section I.1 of Annex I, Section II.1 of Annex II and Section III.1 of Annex III to Directive 2008/68/EC should therefore be amended accordingly.

(4)

The measures provided for in this Directive are in accordance with the opinion of the Committee on the transport of dangerous goods,

1.

In Annex I, Section I.1 is replaced by the following:

‘I.1.   ADR

Annexes A and B to the ADR, as applicable with effect from 1 January 2017, it being understood that “contracting party” is replaced by “Member State” as appropriate.’;

2.

In Annex II, Section II.1 is replaced by the following:

‘II.1.   RID

Annex to the RID, appearing in Appendix C to the COTIF, as applicable with effect from 1 January 2017, it being understood that “RID Contracting State” is replaced by “Member State” as appropriate.’;

3.

In Annex III, Section III.1 is replaced by the following:

‘III.1.   ADN

Annexed Regulations to the ADN, as applicable with effect from 1 January 2017, as well as Articles 3(f), 3(h), 8(1), 8(3) of the ADN, it being understood that “contracting party” is replaced by “Member State” as appropriate.’.

20.12.2016   

EN

Official Journal of the European Union

L 345/50

(1)

The Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part (1) (the ‘Agreement’) was signed on 24 November 1997 and entered into force on 1 May 2002.

(2)

A Joint Communication by the High Representative and by the European Commission of 18 November 2015 on the Review of the European Neighbourhood Policy has been welcomed by the Council Conclusions of 14 December 2015, where, inter alia, the Council confirmed the intention to start a new phase of engagement with partners in 2016 which could lead to the setting of new partnership priorities, where appropriate, focused on agreed priorities and interests.

(3)

The shared goal of the Union and Jordan for a common area of peace, prosperity and stability necessitates working together, particularly through co-ownership and differentiation, and taking account of Jordan's key role in the region.

(4)

While addressing the most urgent challenges, the Union and Jordan continue to pursue the core objectives of their long-term partnership and to enhance the stability and resilience of the country and the region as well as sustained and knowledge-based economic growth and social development in accordance with the rule of law and based on democratic governance.

(5)

The position of the Union within the Association Council set up by the Agreement should therefore be based on the attached draft Decision,

20.12.2016   

EN

Official Journal of the European Union

L 345/53

(1)

The European Union has set as one of its aims the promotion of the protection of the rights of the child, as stated in Article 3 of the Treaty on European Union. Measures for the protection of children against wrongful removal or retention are an essential part of that policy.

(2)

The Council adopted Regulation (EC) No 2201/2003 (2) (‘Brussels IIa Regulation’), which aims to protect children from the harmful effects of wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence, as well as to secure the protection of rights of access and rights of custody.

(3)

The Brussels IIa Regulation complements and reinforces the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’) which establishes, at international level, a system of obligations and cooperation among contracting states and between central authorities and aims to ensure the prompt return of wrongfully removed or retained children.

(4)

All Member States of the Union are party to the 1980 Hague Convention.

(5)

The Union encourages third states to accede to the 1980 Hague Convention and supports the correct implementation of the 1980 Hague Convention by participating, along with the Member States, inter alia, in the special commissions organised on a regular basis by the Hague Conference on private international law.

(6)

A common legal framework applicable between Member States of the Union and third states could be the best solution to sensitive cases of international child abduction.

(7)

The 1980 Hague Convention stipulates that it applies between the acceding state and such contracting states as have declared their acceptance of the accession.

(8)

The 1980 Hague Convention does not allow regional economic integration organisations such as the Union to become party to it. Therefore, the Union cannot accede to that Convention, nor can it deposit a declaration of acceptance of an acceding state.

(9)

Pursuant to Opinion 1/13 of the Court of Justice of the European Union, declarations of acceptance under the 1980 Hague Convention fall within the exclusive external competence of the Union.

(10)

Kazakhstan deposited its instrument of accession to the 1980 Hague Convention on 3 June 2013. The 1980 Hague Convention entered into force for Kazakhstan on 1 September 2013.

(11)

Only the Kingdom of the Netherlands has already accepted the accession of Kazakhstan to the 1980 Hague Convention. An assessment of the situation in Kazakhstan has led to the conclusion that those Member States that have not yet accepted the accession of Kazakhstan, are in a position to accept, in the interest of the Union, the accession of Kazakhstan under the terms of the 1980 Hague Convention.

(12)

The Member States that have not yet accepted the accession of the Kazakhstan should therefore be authorised to deposit their declarations of acceptance of accession of Kazakhstan in the interest of the Union in accordance with the terms set out in this Decision. The Kingdom of the Netherlands which has already accepted the accession of Kazakhstan to the 1980 Hague Convention should not deposit a new declaration of acceptance as the existing declaration remains valid under public international law.

(13)

The United Kingdom and Ireland are bound by the Brussels IIa Regulation and are taking part in the adoption and application of this Decision.

(14)

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

20.12.2016   

EN

Official Journal of the European Union

L 345/56

(1)

The European Union has set as one of its aims the promotion of the protection of the rights of the child, as stated in Article 3 of the Treaty on European Union. Measures for the protection of children against wrongful removal or retention are an essential part of that policy.

(2)

The Council adopted Regulation (EC) No 2201/2003 (2) (‘Brussels IIa Regulation’), which aims to protect children from the harmful effects of wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence, as well as to secure the protection of rights of access and rights of custody.

(3)

The Brussels IIa Regulation complements and reinforces the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’) which establishes, at international level, a system of obligations and cooperation among contracting states and between central authorities and aims to ensure the prompt return of wrongfully removed or retained children.

(4)

All Member States of the Union are party to the 1980 Hague Convention.

(5)

The Union encourages third states to accede to the 1980 Hague Convention and supports the correct implementation of the 1980 Hague Convention by participating, along with the Member States, inter alia, in the special commissions organised on a regular basis by the Hague Conference on private international law.

(6)

A common legal framework applicable between Member States of the Union and third states could be the best solution to sensitive cases of international child abduction.

(7)

The 1980 Hague Convention stipulates that it applies between the acceding state and such contracting states as have declared their acceptance of the accession.

(8)

The 1980 Hague Convention does not allow regional economic integration organisations such as the Union to become party to it. Therefore, the Union cannot accede to that Convention, nor can it deposit a declaration of acceptance of an acceding state.

(9)

Pursuant to Opinion 1/13 of the Court of Justice of the European Union, declarations of acceptance under the 1980 Hague Convention fall within the exclusive external competence of the Union.

(10)

Peru deposited its instrument of accession to the 1980 Hague Convention on 28 April 2001. The 1980 Hague Convention entered into force for Peru on 1 August 2001.

(11)

All Member States, with the exception of the Republic of Austria, the Kingdom of Denmark and Romania, have already accepted the accession of Peru to the 1980 Hague Convention. An assessment of the situation in Peru has led to the conclusion that the Republic of Austria and Romania are in a position to accept, in the interest of the Union, the accession of Peru under the terms of the 1980 Hague Convention.

(12)

The Republic of Austria and Romania should therefore be authorised to deposit their declarations of acceptance of accession of Peru in the interest of the Union in accordance with the terms set out in this Decision. The other Member States of the Union which have already accepted the accession of Peru to the 1980 Hague Convention should not deposit new declarations of acceptance as the existing declarations remain valid under public international law.

(13)

The United Kingdom and Ireland are bound by the Brussels IIa Regulation and are taking part in the adoption and application of this Decision.

(14)

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

20.12.2016   

EN

Official Journal of the European Union

L 345/59

(1)

The European Union has set as one of its aims the promotion of the protection of the rights of the child, as stated in Article 3 of the Treaty on European Union. Measures for the protection of children against wrongful removal or retention are an essential part of that policy.

(2)

The Council adopted Regulation (EC) No 2201/2003 (2) (‘Brussels IIa Regulation’), which aims to protect children from the harmful effects of wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence, as well as to secure the protection of rights of access and rights of custody.

(3)

The Brussels IIa Regulation complements and reinforces the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’) which establishes, at international level, a system of obligations and cooperation among contracting states and between central authorities and aims to ensure the prompt return of wrongfully removed or retained children.

(4)

All Member States of the Union are party to the 1980 Hague Convention.

(5)

The Union encourages third states to accede to the 1980 Hague Convention and supports the correct implementation of the 1980 Hague Convention by participating, along with the Member States, inter alia, in the special commissions organised on a regular basis by the Hague Conference on private international law.

(6)

A common legal framework applicable between Member States of the Union and third states could be the best solution to sensitive cases of international child abduction.

(7)

The 1980 Hague Convention stipulates that it applies between the acceding state and such contracting states as have declared their acceptance of the accession.

(8)

The 1980 Hague Convention does not allow regional economic integration organisations such as the Union to become party to it. Therefore, the Union cannot accede to that Convention, nor can it deposit a declaration of acceptance of an acceding state.

(9)

Pursuant to Opinion 1/13 of the Court of Justice of the European Union, declarations of acceptance under the 1980 Hague Convention fall within the exclusive external competence of the Union.

(10)

The Republic of Korea deposited its instrument of accession to the 1980 Hague Convention on 13 December 2012. The 1980 Hague Convention entered into force for the Republic of Korea on 1 March 2013.

(11)

Several Member States have already accepted the accession of the Republic of Korea to the 1980 Hague Convention. An assessment of the situation in the Republic of Korea has led to the conclusion that those Member States that have not yet accepted the accession of the Republic of Korea, are in a position to accept, in the interest of the Union, the accession of the Republic of Korea under the terms of the 1980 Hague Convention.

(12)

The Member States that have not yet accepted the accession of the Republic of Korea should therefore be authorised to deposit their declarations of acceptance of accession of the Republic of Korea in the interest of the Union in accordance with the terms set out in this Decision. The Czech Republic, Ireland and the Republic of Lithuania which have already accepted the accession of the Republic of Korea to the 1980 Hague Convention should not deposit new declarations of acceptance as the existing declarations remain valid under public international law.

(13)

The United Kingdom and Ireland are bound by the Brussels IIa Regulation and are taking part in the adoption and application of this Decision.

(14)

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

20.12.2016   

EN

Official Journal of the European Union

L 345/62

(1)

On 18 May 2015, the Council adopted Decision (CFSP) 2015/778 (1).

(2)

On 20 June 2016, the Council adopted Decision (CFSP) 2016/993 (2) which amended Decision (CFSP) 2015/778 by adding two supporting tasks to EUNAVFOR MED operation SOPHIA's mandate, namely capacity building and training of the Libyan Coast Guard and Navy, and contributing to information sharing and the implementation of the United Nations (UN) arms embargo on the high seas off the coast of Libya.

(3)

The vetting of possible trainees from the Libyan Coast Guard and Navy should be made more efficient by exchanging information with INTERPOL, the International Criminal Court and the United States of America as well as with Member States, the United Nations Support Mission in Libya (UNSMIL), the European Police Office (EUROPOL) and the European Border and Coast Guard Agency (Frontex).

(4)

Information exchange in the context of implementing the UN arms embargo on the high seas off the coast of Libya should be authorised up to the level ‘SECRET UE/EU SECRET’.

(5)

The possibility should be introduced for EUNAVFOR MED operation SOPHIA to exchange information with INTERPOL in the context of the fight against trafficking in human beings or the arms embargo.

(6)

In addition, the Political and Security Committee (PSC) should be empowered to authorise the High Representative of the Union for Foreign Affairs and Security Policy (HR) to exchange information with relevant third States and international organisations as necessary to meet the operational needs of EUNAVFOR MED operation SOPHIA.

(7)

The HR should be authorised to delegate the authorisations to release classified information and to conclude the arrangements to that effect referred to in Decision (CFSP) 2015/778.

(8)

The necessity for EUNAVFOR MED operation SOPHIA to comply with applicable law when it collects, stores and exchanges personal data and evidence should be emphasised.

(9)

Decision (CFSP) 2015/778 should be amended accordingly,

(1)

in Article 2, paragraph 4 is replaced by the following:

‘4.   EUNAVFOR MED operation SOPHIA may collect and store, in accordance with applicable law, personal data concerning persons taken on board ships participating in EUNAVFOR MED operation SOPHIA related to characteristics likely to assist in their identification, including fingerprints, as well as the following particulars, with the exclusion of other personal data: surname, maiden name, given names and any alias or assumed name; date and place of birth, nationality, sex, place of residence, profession and whereabouts; driving licenses, identification documents and passport data. It may transmit such data and data related to the vessels and equipment used by such persons to the relevant law enforcement authorities of Member States and/or to competent Union bodies.’;

(2)

in Article 2a, paragraph 5 is replaced by the following:

‘5.   Insofar as required by the supporting task referred to in paragraph 1, EUNAVFOR MED operation SOPHIA may collect, store and exchange with Member States, competent Union bodies, UNSMIL, EUROPOL, INTERPOL, Frontex, the International Criminal Court and the United States of America the information, including personal data, gathered for the purpose of the vetting procedures on possible trainees, provided that they have given their consent in writing. Moreover, EUNAVFOR MED operation SOPHIA may collect and store necessary medical information and biometric data on trainees provided that they have given their consent in writing.’;

(3)

in Article 2b, paragraph 1 is replaced by the following:

‘1.   As part of its supporting task to contribute to the implementation of the UN arms embargo on the high seas off the coast of Libya, EUNAVFOR MED operation SOPHIA shall gather and exchange information with relevant partners and agencies through the mechanisms in the planning documents in order to contribute to a comprehensive maritime situational awareness in the agreed Area of Operation as defined in the relevant planning documents. Where such information is classified up to “SECRET UE/EU SECRET”, it may be exchanged with relevant partners and agencies in accordance with Council Decision 2013/488/EU (*1) and based on arrangements concluded at the operational level in accordance with Article 12(9) of this Decision, and in full respect of the principles of reciprocity and inclusiveness. Classified information received shall be handled by EUNAVFOR MED operation SOPHIA without any distinction between its staff and solely on the basis of operational requirements.

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

(4)

in Article 2b, paragraph 3 is replaced by the following:

‘3.   In accordance with the relevant UN Security Council Resolutions, including UNSCR 2292 (2016), EUNAVFOR MED operation SOPHIA may, in the course of inspections carried out in accordance with paragraph 2, collect and store evidence directly related to the carriage of items prohibited under the arms embargo on Libya. It may transmit such evidence to the relevant law enforcement authorities of Member States and/or to competent Union bodies in accordance with applicable law.’;

(5)

Article 12 is replaced by the following:

‘Article 12

Release of Information

1.   The HR shall be authorised to release to designated third States, international organisations and international agencies, as appropriate and in accordance with the needs of EUNAVFOR MED operation SOPHIA, any EU non-classified documents connected with the deliberations of the Council relating to the operation and covered by the obligation of professional secrecy pursuant to Article 6(1) of the Council's Rules of Procedure (*2). The PSC shall designate on a case-by-case basis the third States, international organisations and international agencies concerned.

2.   The HR shall be authorised to release to designated third States, international organisations and international agencies, as appropriate and in accordance with the needs of EUNAVFOR MED operation SOPHIA, and in full respect of the principles of reciprocity and inclusiveness, EU classified information generated for the purposes of the operation, in accordance with Decision 2013/488/EU, as follows:

The PSC shall designate on a case-by-case basis the third States, international organisations and international agencies concerned.

3.   Classified information received shall be handled by EUNAVFOR MED operation SOPHIA without any distinction between its staff and solely on the basis of operational requirements.

4.   The HR shall also be authorised to release to the UN, in accordance with the operational needs of EUNAVFOR MED operation SOPHIA, EU classified information up to “RESTREINT UE/EU RESTRICTED” level which are generated for the purposes of EUNAVFOR MED operation SOPHIA, in accordance with Decision 2013/488/EU.

5.   The HR shall be authorised to release to INTERPOL relevant information, including personal data, in accordance with the operational needs of EUNAVFOR MED operation SOPHIA.

6.   Pending the conclusion of an agreement between the Union and INTERPOL, EUNAVFOR MED operation SOPHIA may exchange such information with the National Central Bureaux of INTERPOL of the Member States, in accordance with arrangements to be concluded between the EU Operation Commander and the Head of the relevant National Central Bureau.

7.   In the event of specific operational need, the HR shall be authorised to release to legitimate Libyan authorities any EU classified information up to “RESTREINT UE/EU RESTRICTED” level generated for the purposes of EUNAVFOR MED operation SOPHIA, in accordance with Decision 2013/488/EU.

8.   The HR shall be authorised to conclude the arrangements necessary to implement the provisions on information exchange in this Decision.

9.   The HR may delegate the authorisations to release information as well as the ability to conclude the arrangements referred to in this Decision to EEAS officials, to the EU Operation Commander or to the EU Force Commander in accordance with section VII of Annex VI to Decision 2013/488/EU.

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

20.12.2016   

EN

Official Journal of the European Union

L 345/65

(1)

On 31 July 2014, the Council adopted Decision 2014/512/CFSP (1).

(2)

On 19 March 2015, the European Council agreed that the necessary measures would be taken to clearly link the duration of the restrictive measures to the complete implementation of the Minsk agreements, bearing in mind that the complete implementation was foreseen for 31 December 2015.

(3)

On 1 July 2016, the Council renewed Decision 2014/512/CFSP until 31 January 2017 in order to enable it to further assess the implementation of the Minsk agreements.

(4)

Having assessed the implementation of the Minsk agreements, Decision 2014/512/CFSP should be renewed for a further 6 months in order to enable the Council to further assess their implementation.

(5)

Decision 2014/512/CFSP should therefore be amended accordingly,

20.12.2016   

EN

Official Journal of the European Union

L 345/66

(1)

Commission Implementing Decision (EU) 2015/1849 (2) prohibits the introduction into the territory of the Union of plants, other than seeds, of Capsicum L., Lagenaria Ser., Luffa Mill., Momordica L. and Solanum L., other than S. lycopersicum L., originating in Ghana.

(2)

That prohibition is limited in time. It applies until the end of the year 2016. The audit carried out in Ghana in September 2016 revealed that the shortcomings in the phytosanitary export certification system of that third country persist. Consequently, it is appropriate to extend that prohibition until 31 December 2017.

(3)

Implementing Decision (EU) 2015/1849 should therefore be amended accordingly.

(4)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Plants, Animals, Food and Feed,

20.12.2016   

EN

Official Journal of the European Union

L 345/67

(1)

Commission Decision 2008/294/EC (2) sets technical and operational conditions necessary to allow the use of GSM, UMTS and LTE on board aircraft (MCA services) in the European Union.

(2)

Current legislation requires the presence of a Network Control Unit (NCU) as part of MCA equipment on board airplanes to prevent mobile terminals on board aircraft from attempting to register with terrestrial mobile communications networks.

(3)

The Commission gave a mandate on 7 October 2015 to the European Conference of Postal and Telecommunications Administrations (‘the CEPT’), pursuant to Article 4(2) of Decision No 676/2002/EC, to undertake technical studies regarding the need to keep the usage of the NCU mandatory on-board MCA enabled aircraft.

(4)

Following that mandate, the CEPT adopted on 17 November 2016 its Report 63 which concluded that it is possible to make the use of an NCU optional for GSM and LTE systems considering that MCA operations without NCU guarantee a reasonable protection against interference for terrestrial networks.

(5)

In accordance with the conclusions of the CEPT Report, it is no longer necessary to actively prevent through an NCU the connection of mobile terminals to terrestrial mobile networks operating in the band 2 570-2 690 MHz. Article 2 of Commission Implementing Decision 2013/654/EU (3) therefore becomes obsolete and should be deleted.

(6)

However, with regard to UMTS systems, the CEPT concluded that an NCU remains necessary to prevent connections between terrestrial UMTS networks and user equipment on board aircraft. Studies showed that such connections could cause a partial and temporary reduction in capacity for the connecting and neighbouring cells on the ground. The other solution to attenuate signals entering and leaving the cabin and to prevent unwanted connections is to add sufficient shielding to the aircraft fuselage.

(7)

MCA technical specifications should remain under review in order to ensure that they always match technological progress.

(8)

The measures provided for in this Decision are in accordance with the opinion of the Radio Spectrum Committee,

20.12.2016   

EN

Official Journal of the European Union

L 345/72

(1)

The company Syngenta Crop Protection AG (‘the applicant’) submitted complete applications to Spain for mutual recognition of authorisations granted by Ireland in respect of rodenticides containing the active substance brodifacoum (‘the products’). Ireland authorised the products as a rodenticide for use indoors, outdoors around buildings and in sewers by professionals and trained professionals, as well as for use indoors and outdoors around buildings by the general public.

(2)

Pursuant to Article 37(2) of Regulation (EU) No 528/2012, Spain proposed the applicant to adjust the terms and conditions of the authorisations to be granted in Spain and proposed restricting the use of the products to trained professionals and indoors only. The objective of such restrictions is the protection of the environment referred to in Article 37(1)(a) of Regulation (EU) No 528/2012 by preventing primary and secondary poisoning incidents in non-target animals as a result of the hazardous properties of brodifacoum, which render it potentially persistent, liable to bioaccumulation and toxic, or very persistent and very liable to bioaccumulation.

(3)

The applicant disagreed with the proposed restrictions and considered that those measures are not sufficiently justified on the grounds laid down in Article 37(1) of Regulation (EU) No 528/2012. As a result, on 18 April 2016 Spain informed the Commission in accordance with the second subparagraph of Article 37(2) of that Regulation.

(4)

In line with the conditions imposed on the approval of brodifacoum in Commission Directive 2010/10/EU (2), authorisations of biocidal products containing brodifacoum are subject to all appropriate and available risk mitigation measures in order to limit the risk of primary and secondary exposure of non-target animals, as well as the long term effects of the substance on the environment. Those measures may include, amongst others, the restriction to professional use only or restrictions regarding the area of use of the products.

(5)

The Commission notes that the proposal by Spain is part of a national set of risk mitigation measures for anticoagulant rodenticides, which was communicated to the Commission in 2012 in the context of discussions on the risk mitigation measures applied by Member States during the authorisation of anticoagulant rodenticide biocidal products.

(6)

Concerning the restriction to trained professionals only, the Commission notes that that user category is considered to be in possession of the required knowledge, skills and competencies enabling it to consider the risks of using rodenticides to non-target animals. That user category is therefore considered to be able to decide which rodenticide is necessary to control an infestation with the lowest impact on the environment.

(7)

Regarding the proposed restriction to indoors only, it avoids the exposure to brodifacoum of non-target animals such as small mammals living around buildings, resulting in a reduction of primary poisoning incidents. As a consequence, the restriction may contribute to the reduction of secondary poisoning of predators consuming the contaminated animals.

(8)

The proposed derogation is consistent with the specific provisions laid down in Directive 2010/10/EU, which leave to the Member States a certain level of discretion to apply the appropriate and available risk mitigation measures as a condition for the authorisation of products containing brodifacoum. The proposed derogation is justified in order to protect the environment, particularly as it aims to prevent or reduce primary and secondary poisoning of non-target organisms. The Commission therefore considers that the proposed derogation from mutual recognition fulfils the condition referred to in Article 37(1)(a) of Regulation (EU) No 528/2012.

(9)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Biocidal Products,

(a)

BC-KC011180-73;

(b)

BC-VM011322-40.

20.12.2016   

EN

Official Journal of the European Union

L 345/74

(1)

In accordance with Regulation (EC) No 443/2009, the Commission is required to calculate each year the average specific emissions of CO2 and the specific emissions target for each manufacturer of passenger cars in the Union as well as for each pool of manufacturers. On the basis of that calculation, the Commission is to determine whether manufacturers and pools have complied with their specific emissions targets.

(2)

The detailed data to be used for the calculation of the average specific emissions and the specific emissions targets is based on Member States' registrations of new passenger cars during the preceding calendar year.

(3)

All Member States submitted the 2015 data to the Commission in accordance with Article 8(2) of Regulation (EC) No 443/2009. Where, as a result of the verification of the data by the Commission, it was evident that certain data were missing or manifestly incorrect, the Commission contacted the Member States concerned and, subject to the agreement of those Member States, adjusted or completed the data accordingly. Where no agreement could be reached with a Member State, the provisional data of that Member State was not adjusted.

(4)

On 13 April 2016, the Commission published the provisional data and notified 97 manufacturers of the provisional calculations of their average specific emissions of CO2 in 2015 and their specific emissions targets. Manufacturers were asked to verify the data and to notify the Commission of any errors within three months of receipt of the notification. 44 manufacturers submitted notifications of errors within the given time limit.

(5)

For the remaining 53 manufacturers that did not notify any errors in the datasets or respond otherwise, the provisional data and provisional calculations of the average specific emissions and the specific emissions targets should be confirmed. For four manufacturers all vehicles reported in the provisional dataset were outside the scope of Regulation (EC) No 443/2009.

(6)

The Commission has verified the errors notified by the manufacturers and the respective reasons for their correction, and the dataset has been confirmed or amended.

(7)

In the case of records with missing or incorrect identification parameters, such as the type, variant, version code or the type approval number, the fact that manufacturers cannot verify or correct those records should be taken into account. As a consequence, it is appropriate to apply an error margin to the CO2 emissions and mass values of those records.

(8)

The error margin should be calculated as the difference between the distances to the specific emissions target expressed as the specific emissions target subtracted from the average specific emissions calculated including and excluding those registrations that cannot be verified by the manufacturers. Regardless of whether that difference is positive or negative, the error margin should always improve the manufacturer's position with regard to its specific emission target.

(9)

In accordance with Article 10(2) of Regulation (EC) No 443/2009, a manufacturer should be considered as compliant with its specific emissions target referred to in Article 4 of that Regulation where the average emissions indicated in this Decision are lower than the specific emissions target, expressed as a negative distance to target. Where the average emissions exceed the specific emissions target, an excess emission premium are to be imposed, unless the manufacturer concerned benefits from an exemption from that target or is a member of a pool and the pool complies with its specific emissions target. On that basis, two manufacturers are considered to exceed their specific emissions target for 2015.

(10)

On 3 November 2015 the Volkswagen Group made a statement to the effect that irregularities had been found when determining type approval CO2 levels of some of their vehicles. While that issue has been thoroughly investigated, the Commission nevertheless finds that further clarifications are needed from the Volkswagen pool as a whole as well as a confirmation by the relevant national type approval authorities of the absence of any such irregularities. As a consequence the values for the Volkswagen pool and its members (Audi AG, Audi Hungaria Motor Kft., Bugatti Automobiles S.A.S., Dr Ing. h.c. F. Porsche AG, Quattro GmbH, Seat S.A., Skoda Auto A.S., and Volkswagen AG) cannot be confirmed or amended.

(11)

The Commission reserves the right to revise the performance of a manufacturer as confirmed or amended by this Decision, should the relevant national authorities confirm the existence of irregularities in the CO2 emission values used for the purpose of determining the manufacturer's compliance with the specific emissions target.

(12)

The provisional calculation of the average specific emissions of CO2 from new passenger cars registered in 2015, the specific emissions targets and the difference between those two values should be confirmed or amended accordingly,

(1)

(2)

(3)

(4)

(5)

(6)

AVTOVAZ JSC

Represented in the Union by:

(7)

(8)

(9)

(10)

(11)

(12)

BYD AUTO INDUSTRY COMPANY LIMITED

Represented in the Union by:

(13)

(14)

(15)

FCA US LLC

Represented in the Union by:

(16)

(17)

(18)

Daihatsu Motor Co. Ltd

Represented in the Union by:

(19)

(20)

DFSK MOTOR CO. LTD

Represented in the Union by:

(21)