(1)

The conclusions of the European Council of 19-20 December 2013 welcomed the preparations for the next generation of governmental satellite communications through close cooperation between the Member States, the Commission and the European Space Agency (ESA). Governmental satellite communications have also been identified as one of the elements of the Global Strategy for the European Union’s Foreign and Security Policy of June 2016. Governmental satellite communications are to contribute to the EU response to Hybrid Threats and provide support to the EU Maritime Security Strategy and to the EU Arctic policy.

(2)

The conclusions of the European Council of 21-22 March 2019 stressed that the Union needs to go further in developing a competitive, secure, inclusive and ethical digital economy with world-class connectivity.

(3)

The Communication of the Commission of 22 February 2021, entitled ‘Action Plan on synergies between civil, defence and space industries’, states that it aims to ‘enable access to high-speed connectivity for everyone in Europe, and provide a resilient connectivity system allowing Europe to remain connected whatever happens’.

(4)

‘A Strategic Compass for Security and Defence’ adopted by the Council on 21 March 2022 recognises that the space infrastructure of the Union and of its Member States contributes to our resilience and offers key services that substitute or complement ground infrastructures for telecommunications. It therefore calls for the Union to work on the proposal for a Union space-based global secure communication system.

(5)

One of the components of the Union Space Programme established by Regulation (EU) 2021/696 of the European Parliament and of the Council (2) is GOVSATCOM, which aims to ensure the long-term availability of reliable, secure, scalable and cost-effective satellite communications services for GOVSATCOM users. Regulation (EU) 2021/696 envisages that in a first phase of the GOVSATCOM component, until approximately 2025, existing capacity would be pooled and shared through the GOVSATCOM Hub. In that context, the Commission is to procure GOVSATCOM capacities from Member States with national systems and space capacities and from commercial satellite communication or service providers, taking into account the essential security interests of the Union.

In that first phase, GOVSATCOM services are to be introduced on the basis of a step-by-step approach, in light of the scaling up of the GOVSATCOM Hub infrastructure capabilities. That approach is also based on the premise that if in the course of the first phase a detailed analysis of future supply and demand reveals that it was insufficient to cover the evolving demand, it will be necessary to move to a second phase and develop additional bespoke space infrastructure or capacities through cooperation with the private sector, for example with Union satellite operators.

(6)

On 22 March 2017, the Council’s Political and Security Committee endorsed the High Level Civil Military User Needs for Governmental Satellite Communications (GOVSATCOM), which were prepared by the European External Action Service (EEAS) and with which the military user’s requirements identified by the European Defence Agency in its Common Staff Target adopted in 2013 and the civilian user needs collected by the Commission have been merged. Subsequent analyses by the Commission showed that the Union’s current satellite communication offer, on the basis of capacities from Member States with national systems as well as the private sector, cannot meet certain new needs of the governmental demand which are moving towards higher security solutions, low latency and global coverage. Those needs should be monitored and reassessed regularly.

(7)

Recent technical progress has allowed non-geostationary-orbit (NGSO) communications constellations to emerge and gradually offer high-speed and low latency connectivity services. There is therefore a window of opportunity for addressing the evolving needs of government-authorised users by developing and deploying additional infrastructure as filings for the frequencies with the International Telecommunication Union which are necessary to provide the required services are currently available within the Union. If not used, those filings for the frequencies will become obsolete and be attributed to other players. As frequencies and orbital slots are an increasingly scarce resource, the Commission, through an open and transparent process with the Member States, should seize this opportunity to conclude with the Member States providing the filings for the frequencies dedicated licensing agreements for the provision of governmental services based on the governmental infrastructure. The private sector is responsible for obtaining the rights on filings for the frequencies required for the provision of commercial services.

(8)

There is growing demand by the Union’s governmental actors for secure and reliable spaced-based satellite communication services, particularly because they are the most viable option in the absence of ground-based communication systems or where they are disrupted or unreliable. Affordable and cost-effective access to satellite communication is also indispensable in areas where there is no terrestrial infrastructure, including over oceans, in airspace, in remote areas and where terrestrial infrastructure faces serious outage or cannot be trusted in crisis situations. Satellite communication can increase the overall resilience of communication networks, for example offering an alternative in the case of physical attacks or cyberattacks on local terrestrial infrastructure, accidents or natural or man-made disasters.

(9)

The Union should ensure the provision of resilient, global, secure, protected, uninterrupted, guaranteed and flexible satellite communication solutions for evolving governmental needs and requirements, built on a Union technological and industrial base, in order to increase the resilience of Member States’ and Union institutions’ operations.

(10)

Therefore, it is important to establish a new programme, namely the Union Secure Connectivity Programme (the ‘Programme’), to provide for a Union satellite-based, multi-orbital communication infrastructure for governmental use, while integrating and complementing existing and future national and European capacities in the framework of the GOVSATCOM component, and developing further and gradually integrating the European Quantum Communication Infrastructure (EuroQCI) initiative into the secure connectivity system.

(11)

The Programme should meet the new governmental needs for higher security solutions, low latency and global coverage. It should ensure the provision and long-term availability of worldwide uninterrupted access to secure, autonomous, reliable and cost-effective satellite governmental communication services, supporting the resilience and protection of critical infrastructure, situational awareness, external actions, crisis management, as well as applications that are critical for the Union’s and Member States’ economy, security and defence, through a dedicated governmental infrastructure which integrates and complements the capacities of GOVSATCOM. Moreover, the Programme should prioritise the delivery of governmental services and allow for the provision of commercial services by the European private sector, taking into account a market survey including consultation of government-authorised users, through a commercial infrastructure.

(12)

Decision (EU) 2022/2481 of the European Parliament and of the Council (3) sets a series of objectives and targets to promote the development of resilient, secure, performant and sustainable digital infrastructures in the Union, including a digital target for the Commission and Member States to achieve gigabit connectivity for all by 2030. The Programme should enable connectivity across the Union and around the globe, for citizens and business, including, but not limited to, providing access to affordable high-speed broadband that can help remove communication dead zones and increase cohesion across the Union, including its outermost regions, rural, peripheral, remote and isolated areas and islands. The satellite services cannot currently replace the performance of ground-based networks but can bridge the digital divide and even contribute, where applicable, to the general objectives of Directive (EU) 2018/1972 of the European Parliament and of the Council (4).

(13)

The Programme should therefore consist of the definition, design, development, validation and related deployment activities for the construction of the initial space and ground infrastructure, required for the provision of first governmental services. The Programme should then entail gradual deployment activities aimed at completing both the space and ground infrastructure required for the provision of advanced governmental services, which are currently not available and are beyond the state-of-the-art of existing European satellite communication services. Moreover, the Programme should promote the development of user terminals able to exploit the advanced communication services. The exploitation activities should begin as soon as possible with the provision of the first governmental services aimed by 2024, so that the needs of government-authorised users are met as soon as possible. The Programme should then entail activities aiming to complete both the space and ground infrastructure required for a full operational capability by 2027. The provision of governmental services, the operation, maintenance and continuous improvement of the space and ground infrastructure, once deployed, as well as the development of the future generations of the governmental services, should be part of the exploitation activities.

(14)

In June 2019, Member States signed the European Quantum Communication Infrastructure (EuroQCI) Declaration (the ‘Declaration’), agreeing to work together, with the Commission and with the support of ESA, towards the development of a quantum communication infrastructure covering the whole Union. In accordance with the Declaration, EuroQCI aims to deploy a certified secure end-to-end quantum communication infrastructure, enabling information and data to be transmitted and stored and to be capable of linking critical public communication assets throughout the Union. The Programme will contribute to meeting the objectives of the Declaration by developing a EuroQCI space and ground infrastructure integrated into the governmental infrastructure of the Programme, as well as by developing and deploying the EuroQCI terrestrial infrastructure, which will be owned by the Member States. The EuroQCI space, ground and terrestrial infrastructure should be developed within the Programme in two main phases, a preliminary validation phase, which may involve the development and validation of several different technologies and communication protocols, and a full-deployment phase including appropriate solutions for inter-satellite connectivity and data relay between satellites, the ground and the terrestrial infrastructure.

(15)

One of the main functions of the EuroQCI will be to allow for quantum distribution of cryptographic keys (QKD). To date, QKD technology and products are not sufficiently mature to be used for the protection of EU classified information (EUCI). The main issues concerning QKD security, such as standardisation of QKD protocols, side channel analysis and evaluation methodology, still need to be solved. The Programme should therefore support the EuroQCI and allow for the inclusion of approved cryptographic products in the infrastructure when available.

(16)

In order to protect EUCI in a satisfactory secured manner, primary solutions to counter threats posed by quantum computing should be the combination of conventional solutions, post-quantum cryptography and possibly QKD in hybrid approaches. The Programme should therefore use such approaches, for the purpose of ensuring both state-of the-art cryptography and key distribution.

(17)

In order to expand Union satellite communication capacities, the Programme infrastructure should be based upon, integrate and complement the infrastructure developed for the purposes of the of the GOVSATCOM component. In particular, the Programme’s ground infrastructure should be based upon the GOVSATCOM Hubs, as progressively scaled up on the basis of user needs through other ground segment assets, including those of the Member States willing to contribute additionally, on the basis of operational and security requirements.

(18)

The Programme should improve secure connectivity over geographical areas of strategic interest, such as Africa and the Arctic as well as the Baltic, the Black Sea, Mediterranean regions and the Atlantic. The services provided under the Programme should also contribute to geopolitical resilience by offering additional connectivity in line with policy targets in those regions and with the Joint Communication of the Commission and the High Representative of the Union for Foreign Affairs and Security policy of 1 December 2021 entitled ‘The Global Gateway’.

(19)

Without prejudice to the communication services, the satellites built for the purposes of the Programme could be equipped with subsystems, including payloads, that can allow the increase of the capacity and services of the components of the Union Space Programme, enabling thereby the development of additional non-communication services to be decided by the Programme committee meeting in the relevant configuration, as set out in Regulation (EU) 2021/696, and implemented under the conditions set out in this Regulation. If the benefit to the components of the Union Space Programme is duly established, taking into account user needs and budgetary constraints, those subsystems could be developed to offer alternative positioning, navigation and timing services complementing Galileo, to ensure the broadcast of European Geostationary Navigation Overlay Service (EGNOS) messages with a lower latency, to provide space-based sensors for space surveillance and to support the enhancement of current Copernicus capabilities, in particular for emergency and civil security services. Moreover, those subsystems could provide non-communication services to Member States, under the condition that this does not impact the security and budget of the Programme.

(20)

Considering the importance for the Programme of its ground governmental infrastructure and the impact thereof on its security, the location of such infrastructure should be determined by the Commission, in line with the general security requirements and following an open and transparent process, with a view to ensuring a balanced distribution among Member States. The deployment of the ground governmental infrastructure of the Programme, which also integrates the infrastructure developed under the GOVSATCOM component, could involve the European Union Agency for the Space Programme (the ‘Agency’) or, where appropriate and within its field of competence, ESA.

(21)

It is vital for the security of the Union and its Member States and for ensuring the security and integrity of the governmental services, that the space assets of the Programme are launched from the Union’s territory. In exceptional, duly substantiated circumstances, it should be possible for such launches to take place from the territory of a third country. In addition to heavy and medium launchers, small launchers and microlaunchers could provide additional flexibility to allow for a rapid deployment of the space assets.

(22)

It is important that the Union owns all tangible and intangible assets related to governmental infrastructure developed under the Programme, except the EuroQCI terrestrial infrastructure, while ensuring the compliance with the Charter of Fundamental Rights of the European Union, including Article 17 thereof. Despite the ownership by the Union of those assets, it should be possible for the Union, in accordance with this Regulation and, where it is deemed appropriate on a case-by-case assessment, to make those assets available to third parties or to dispose of them.

(23)

Union-wide initiatives, such as the secure connectivity initiative, are shaped by the broad participation of innovative small and medium-sized enterprises (SMEs), start-ups and large enterprises from the upstream and downstream space sector throughout the Union. In recent years, some space actors have challenged the space sector, in particular start-ups and SMEs which developed innovative, market-driven space technologies and applications, sometimes with different business models. In order to ensure the competitiveness of the Union space ecosystem, the Programme should maximise the use of innovative and disruptive technologies, as well as novel business models developed by the European space ecosystem, including New Space, in particular by SMEs, mid-cap companies and start-ups that develop market-driven novel space technologies and applications, while covering the whole space value chain encompassing the upstream and downstream segments.

(24)

It is essential to encourage private sector investment through appropriate procurement and aggregation of service contracts, thus reducing uncertainty and providing long-term visibility and predictability of public sector services needs. To ensure the competitiveness of the European space industry in the future, the Programme should also contribute to the development of advanced skills in space-related fields and support education and training activities, as well as promoting equal opportunities, gender equality and women’s empowerment, in order to realise the full potential of Union citizens in that area.

(25)

In line with the objectives set out in the Commission Communication of 11 December 2019 entitled ‘The European Green Deal’, the Programme should minimise, to the extent possible, its environmental impact. While the space assets do not themselves emit greenhouse gases while in use, their manufacturing and associated ground facilities do have an environmental impact. Measures should be adopted to mitigate that impact. To that end, the procurement referred to under the Programme should include principles and measures on sustainability, such as provisions to minimise and offset the greenhouse gas emissions generated by the development, production and deployment of the infrastructure, and measures to prevent light pollution, such as the impact on ground-based astronomical observations.

(26)

Given the growing number of spacecraft and space debris in orbit, the new European constellation should also satisfy space sustainability criteria and be an example of good practices in space traffic management and in space surveillance and tracking (SST), in order to reduce the amount of space debris produced, prevent on-orbit break-ups and on-orbit collision, and provide appropriate end-of-life spacecraft measures. As legitimate concerns on the protection of space environment are being discussed in international fora, such as within the United Nations’ Committee on the Peaceful Uses of Outer Space, it is of the utmost importance that the Union shows leadership in space sustainability. The contracts procured under the Programme should ensure that the technology deployed enables the highest possible standards when it comes to sustainability, as well as energy and resource efficiency.

(27)

Operational requirements for the governmental services should be based on the assessment of government-authorised users’ needs, while also taking into account the capabilities of the current market offer. When assessing those requirements the current market capacities should be used to the largest extent possible. From those operational requirements, in combination with the general security requirements and evolving demand of governmental services, the service portfolio for governmental services should be developed. That service portfolio should establish the applicable baseline for the governmental services. It should also identify the categories of service which complement the service portfolio of the GOVSATCOM services established within the framework of Regulation (EU) 2021/696. The Commission should ensure the consistency and coherence of operational and security requirements between the GOVSATCOM component and the Programme. In order to maintain the best possible match between the demand and supply of services, the service portfolio for governmental services should be identified in 2023 and should be able to be regularly updated, after consulting Member States on the basis of those operational and security requirements.

(28)

Satellite communications is a finite resource limited by the satellite capacity, frequency and geographical coverage. Hence, in order to be cost-effective and to capitalise on economies of scale, the Programme should optimise the match between the supply and demand of the governmental services and avoid overcapacity. Since the demand and the potential supply both change over time, the Commission should monitor the needs to adjust the portfolio for the governmental services whenever this appears necessary.

(29)

Member States, the Council, the Commission and the EEAS, as well as Union agencies and bodies should be able to become Programme participants, insofar as they choose to authorise users of governmental services or provide capacities, sites or facilities. Taking into consideration that it is for the Member States to decide whether to authorise national users of governmental services, Member States should not be obliged to contribute to the Programme or to host the Programme infrastructure.

(30)

Each Programme participant should designate a competent secure connectivity authority to monitor whether users, and other national entities that play a role in the Programme, comply with the applicable rules and security procedures, as laid down in the general security requirements. Programme participants may confer the functions of such an authority to an existing authority.

(31)

This Regulation lays down a financial envelope for the entire duration of the Programme, which is to constitute the prime reference amount, within the meaning of point 18 of the Interinstitutional Agreement of 16 December 2020 between the European Parliament, the Council of the European Union and the European Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, as well as on new own resources, including a roadmap towards the introduction of new own resources (5), for the European Parliament and the Council during the annual budgetary procedure.

(32)

The objectives of the Programme are consistent and complementary with those of other Union programmes, particularly Horizon Europe, established by Regulation (EU) 2021/695 of the European Parliament and of the Council (6) and Council Decision (EU) 2021/764 (7), the Digital Europe Programme, established by Regulation (EU) 2021/694 of the European Parliament and of the Council (8), the Neighbourhood, Development and International Cooperation Instrument – Global Europe, established by Regulation (EU) 2021/947 of the European Parliament and of the Council (9), the Connecting Europe Facility, established by Regulation (EU) 2021/1153 of the European Parliament and of the Council (10) and, in particular, the Union Space Programme.

(33)

Horizon Europe will allocate a dedicated share of its Cluster ‘Digital, Industry and Space’ components to research and innovation activities related to development and validation of the secure connectivity system, including for the potential technologies that would be developed under the space ecosystem, including New Space. The Neighbourhood, Development and International Cooperation Instrument – Global Europe (NDICI) will allocate a dedicated share of its Global Europe funds for activities related to the operation of the secure connectivity system and the worldwide provision of services that will make it possible to offer an array of services to international partners. The Union Space Programme will allocate a dedicated share of the GOVSATCOM component for the activities related to the development of the GOVSATCOM Hub which will form part of the ground infrastructure of the secure connectivity system. The funding stemming from these programmes should be implemented in accordance with the rules of these programmes.

(34)

Due to its inherent implications on the security of the Union and its Member States, the Programme also shares objectives and principles with the European Defence Fund, established by Regulation (EU) 2021/697 of the European Parliament and of the Council (11). Therefore, part of the funding from the European Defence Fund should be provided to fund the activities under the Programme, particularly the activities related to the deployment of its infrastructure.

(35)

In order to ensure that the Programme is implemented successfully, it is important to ensure that sufficient resources are available. Member States should be able to contribute with their technical competence, know-how and assistance, in particular in the fields of safety and security, or, where appropriate and possible, by making available to the Programme the data, information, services and infrastructure located on their territory. The Programme should be able to receive additional financial contributions or in-kind contributions from third parties, including Union agencies and bodies, Member States, third countries participating in the Programme or international organisations, in line with the relevant agreements.

(36)

Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (12) (the ‘Financial Regulation’) applies to the Programme. The Financial Regulation lays down rules on the implementation of the Union budget, including the rules on grants, prizes, procurement, indirect management, financial instruments, budgetary guarantees, financial assistance and the reimbursement of external experts.

(37)

In accordance with Article 191(3) of the Financial Regulation, in no circumstances are the same costs to be financed twice by the Union budget.

(38)

The Commission should be able to have recourse, as required and insofar as necessary, to the technical assistance of certain external parties, insofar as Union security interests are preserved. Other entities involved in the public governance of the Programme should also be able to make use of the same technical assistance in performing tasks entrusted to them under this Regulation.

(39)

Public contracts concluded under the Programme for activities financed by the Programme should comply with Union rules. In that context, the Union should also be responsible for defining the objectives to be pursued as regards public procurement.

(40)

The Programme relies on complex and constantly changing technologies. The reliance on such technologies results in uncertainty and risk for public contracts concluded under the Programme, insofar as those contracts involve long-term commitments to equipment or services. Specific measures concerning public contracts are therefore required in addition to the rules laid down in the Financial Regulation. It should thus be possible to impose a minimum level of subcontracting. As regards the latter, priority should be given, where possible, to start-ups and SMEs, particularly in order to enable their cross-border participation.

(41)

In order to meet the objectives of the Programme, it is important to be able to call, where appropriate, on capacities offered by Union public and private entities active in the space domain and also to be able to work at international level with third countries or international organisations. For that reason, it is necessary to provide for the possibility to use all the relevant tools and management methods provided for by the Treaty on the Functioning of the European Union (TFEU) and the Financial Regulation and joint procurement procedures.

(42)

Public-private cooperation is the most appropriate scheme by which to ensure that the objectives of the Programme can be pursued. It should permit building upon the existing Union satellite communication technological and industrial base, including private assets, and providing robust and innovative governmental services, and enabling private partners to complement the Programme infrastructure with additional capabilities to offer commercial services on market conditions through additional own investments. Such a scheme should furthermore optimise deployment and operation costs by sharing development and deployment costs on components common to both governmental and commercial infrastructures, as well as operational costs by allowing a high level of capacity mutualisation. It should also stimulate innovation in the European space ecosystem, including New Space, by enabling the sharing of research and development risks between public and private partners.

(43)

For the implementation of the Programme, the concession contracts, supply, service or works contracts or mixed contracts should follow key principles. Such contracts should establish a clear distribution of tasks and responsibilities between the public and private partners, including a clear allocation of risks between them, with a view to ensuring that the contractors assume responsibility for the consequences of any failings for which they are liable. The contracts should ensure that contractors do not receive overcompensation for the provision of governmental services, allow the provision of commercial services to be established by the private sector and ensure an appropriate prioritisation of government-authorised users’ needs. The contracts should ensure that the provision of services based on commercial infrastructure preserves the Union’s essential interests and the Programme’s general and specific objectives. It is therefore important that there are measures in place to ensure that those essential interests and objectives are preserved. In particular, the Commission should be able to take necessary measures to ensure service continuity in the event that the contractor is unable to fulfil its obligations.

The contracts should include adequate safeguards to prevent, inter alia, conflicts of interest and potential distortions of competition stemming from the provision of commercial services, undue discrimination or any other hidden indirect advantages. Such safeguards may include separation of accounts between governmental and commercial services, including the setting up of a structurally and legally separate entity from the vertically integrated operator for the provision of governmental services, as well as open, fair, reasonable and non-discriminatory access to infrastructure necessary for the provision of commercial services. Therefore, commercial services should be available to existing terrestrial services providers under transparent and non-discriminatory conditions. The contracts should foster the participation of start-ups and SMEs along the whole value chain and across Member States.

(44)

An important objective of the Programme is to ensure the security of the Union and of the Member States and to strengthen the resilience across key technologies and value chains while preserving an open economy. In specific cases, that objective requires conditions for eligibility and participation to be set, in order to ensure the protection of the integrity, security and resilience of the operational systems of the Union. That should not undermine the need for competitiveness and cost-effectiveness.

(45)

In accordance with the Financial Regulation, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (13) and Council Regulations (EC, Euratom) No 2988/95 (14), (Euratom, EC) No 2185/96 (15) and (EU) 2017/1939 (16), the financial interests of the Union are to be protected by means of proportionate measures, including measures relating to the prevention, detection, correction and investigation of irregularities including fraud, the recovery of funds lost, wrongly paid or incorrectly used, and, where appropriate, the imposition of administrative penalties. In particular, in accordance with Regulations (Euratom, EC) No 2185/96 and (EU, Euratom) No 883/2013 the European Anti-Fraud Office (OLAF) has the power to carry out administrative investigations, including on-the-spot checks and inspections, with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union.

The European Public Prosecutor’s Office (EPPO) is empowered, in accordance with Regulation (EU) 2017/1939, to investigate and prosecute criminal offences affecting the financial interests of the Union as provided for in Directive (EU) 2017/1371 of the European Parliament and of the Council (17).

In accordance with the Financial Regulation, any person or entity receiving Union funds is to fully cooperate in the protection of the financial interests of the Union, grant the necessary rights and access to the Commission, OLAF, the Court of Auditors and, in respect of those Member States participating in enhanced cooperation, the EPPO pursuant to Regulation (EU) 2017/1939, and ensure that any third parties involved in the implementation of Union funds grant equivalent rights.

(46)

In order to ensure the protection of the financial interests of the Union, it is necessary to require third countries to grant the necessary rights and access required for the authorising officer responsible, OLAF and the Court of Auditors to comprehensively exercise their respective competences.

(47)

To optimise the efficiency and impact of the Programme, actions should be taken to promote the use and development of open standards, open source technologies and interoperability in the architecture of the secure connectivity system. A more open conception of that system could enable better synergies with other components of the Union Space Programme or national services and applications, optimise costs by avoiding duplication in the development of the same technology, improve reliability, foster innovation and reap the benefits of wide competition.

(48)

Sound public governance of the Programme requires the clear distribution of responsibilities and tasks among the different actors involved to avoid unnecessary overlap and reduce cost overruns and delays. All the actors of the governance should support, within their field of competence and in accordance with their responsibilities, the achievement of the objectives of the Programme.

(49)

Member States have long been active in the field of space. They have systems, infrastructure, national agencies and bodies in that field. They are therefore able to make a major contribution to the Programme, especially in its implementation. They might cooperate with the Union to promote the Programme’s services and applications and ensure coherence between the relevant national initiatives and the Programme. The Commission might be able to mobilise the means at Member States’ disposal, benefit from their assistance and, subject to mutually agreed conditions, entrust the Member States with tasks in the implementation of the Programme. Where relevant, Member States should aim to ensure coherence and complementarity of their recovery and resilience plans with the Programme. Moreover, the Member States should take all necessary measures to ensure the protection of the ground infrastructure located on their territories. In addition, Member States should be able to ensure that the frequencies necessary for the Programme are available and protected at the adequate level to allow for the full development and implementation of applications on the basis of the services offered, in compliance with Decision No 243/2012/EU of the European Parliament and of the Council (18). The frequencies made available to the Programme should have no financial impact on the Programme.

(50)

In accordance with Article 17 of the Treaty on European Union (TEU) and as a promoter of the Union’s general interest, it is the Commission’s responsibility to implement the Programme, assume overall responsibility and promote its use. In order to optimise the resources and competences of the various stakeholders, the Commission should be able to entrust certain tasks to other entities under justifiable circumstances. The Commission should determine the main technical and operational requirements necessary to implement systems and services evolution. It should do so after consulting Member States’ experts, users and other relevant public or private stakeholders. Finally, in accordance with Article 4(3) TFEU, the exercise of competence by the Union does not result in Member States being prevented from exercising their respective competences. However, to make good use of the Union funds, it is appropriate that the Commission ensures, as far as possible, the consistency of activities performed in the context of the Programme, with those of the Member States, without creating any unnecessary duplication of efforts.

(51)

Article 154 of the Financial Regulation provides that, on the basis of the results of an ex-ante assessment, the Commission is to be able to rely on the systems and the procedures of the persons or entities entrusted with the implementation of Union funds. If necessary, specific adjustments to those systems and procedures (supervisory measures), as well as the arrangements for the existing contracts, should be defined in the corresponding contribution agreement.

(52)

Given its worldwide coverage, the Programme has a strong international dimension. International partners, their governments and citizens will be recipients of the Programme’s array of services with accrued benefits to the international cooperation of the Union and the Member States with those partners. For matters relating to the Programme, the Commission might coordinate, within its field of competence and on behalf of the Union, the activities on the international scene.

(53)

Building on the expertise developed in the past years in management, operation and service provision related to the Galileo and EGNOS components of the Union Space Programme, the Agency is the most appropriate body to implement, under the supervision of the Commission, tasks relating to the operation of the governmental infrastructure and provision of governmental services. It should therefore develop further relevant capacities for that purpose. The Agency should then be entrusted with the provision of governmental services and should be able to be entrusted with all or part of the operational management of the governmental infrastructure.

(54)

In relation to security, and given its experience in this area, the Agency should be responsible for ensuring, through its Security Accreditation Board, the security accreditation of the governmental services and infrastructure. Furthermore, subject to the operational readiness of the Agency, notably in terms of adequate levels of human resources, the Agency should perform the tasks entrusted to it by the Commission. Where possible, the Agency should leverage its expertise, for example, throughout the European Global Navigation Satellite System (EGNSS) activities. When entrusting tasks to the Agency, adequate human, administrative and financial resources should be made available to enable the Agency to fully carry out its tasks and missions.

(55)

In order to ensure the operation of the governmental infrastructure and facilitate the provision of the governmental services, the Agency should be allowed to entrust, by means of contribution agreements, specific activities to other entities, within their respective fields of competence, under the conditions of indirect management that apply to the Commission as laid down in the Financial Regulation.

(56)

ESA is an international organisation with extensive expertise in the space domain, including in satellite communication, and is therefore an important partner in the implementation of the different aspects of the Union’s space policy. In that regard, ESA should be able to provide expertise to the Commission, including for the preparation of specifications and implementation of the technical aspects of the Programme. For that purpose, ESA should be entrusted with the supervision of the development and validation activities of the Programme, and support the evaluation of the contracts concluded in the context of the implementation of the Programme.

(57)

Owing to the importance of space-related activities for the Union economy and the lives of Union citizens, achieving and maintaining a high degree of security should be a key priority for the Programme, particularly in order to safeguard the interests of the Union and of the Member States, including in relation to classified and sensitive non-classified information.

(58)

Given the specific expertise of the EEAS and its regular contact with authorities of third countries and international organisations, the EEAS should be able to assist the Commission in performing certain tasks relating to the security of the Programme in the field of external relations, in accordance with Council Decision 2010/427/EU (19).

(59)

Without prejudice to the sole responsibility of the Member States in the area of national security, as provided for in Article 4(2) TEU, and to the right of the Member States to protect their essential security interests in accordance with Article 346 TFEU, a specific governance of security should be established to ensure a smooth implementation of the Programme. That governance should be based on three key principles. Firstly, it is imperative that Member States’ extensive, unique experience in security matters be taken into consideration to the greatest possible extent. Secondly, in order to prevent conflicts of interest and any shortcomings in applying security rules, operational functions should be segregated from security accreditation functions. Thirdly, the entity in charge of managing all or part of the Programme’s infrastructure is also the best suited to manage the security of the tasks entrusted to it. The security of the Programme would build upon the experience gained in the implementation of the Union Space Programme over the past years. Sound security governance also requires that roles be appropriately distributed among the various players. As it is responsible for the Programme, the Commission, without prejudice to Member States’ prerogatives in the area of national security, should determine together with the Member States the general security requirements applicable to the Programme. In particular in the area of classified information, the security governance of the Programme should reflect the respective roles and fields of competence of the Council and the Member States in the evaluation and approval of cryptographic products for protecting EUCI.

(60)

The cybersecurity and physical security of the Programme infrastructure, both ground and space, as well as its physical redundancy, are key to ensuring the continuity of the service and the operations of the system. The need to protect the system and its services against cyberattacks and threats to satellites, including by making use of new technologies, and by supporting response to and recovery from such cyberattacks, should therefore be duly taken into account when establishing general security requirements.

(61)

Where appropriate, after the risk and threat analysis, the Commission should identify a security monitoring structure. That security monitoring structure should be the entity responding to instructions developed under the scope of Council Decision (CFSP) 2021/698 (20).

(62)

Without prejudice to Member States’ prerogatives in the area of national security, the Commission and the High Representative, each within their respective field of competence, should ensure the security of the Programme in accordance with this Regulation and, where relevant, Decision (CFSP) 2021/698.

(63)

The governmental services provided by the Programme will be used by the Union’s governmental actors in security, defence, safety-critical missions and operations, as well as the protection of critical infrastructure. Therefore, such services and infrastructure should be subject to security accreditation.

(64)

It is indispensable that security accreditation activities be carried out on the basis of collective responsibility for the security of the Union and its Member States, by endeavouring to build consensus and involving all those concerned with the issue of security, and that a procedure for permanent risk monitoring be put in place. It is also necessary that technical security accreditation activities are conducted by professionals who are duly qualified in the field of accreditation of complex systems and who have an adequate level of security clearance.

(65)

Under Article 17 TEU, the Commission is responsible for the management of programmes which, in accordance with rules set out in the Financial Regulation, can be sub-delegated to third parties under indirect management. In that context, it is necessary that the Commission ensure that the tasks performed by third parties to implement the Programme under indirect management do not undermine the security of the Programme in particular as regards the control of classified information. It should therefore be clarified that where the Commission entrusts ESA to carry out tasks under the Programme, the corresponding contribution agreements are to ensure that classified information generated by ESA be considered to be EUCI in accordance with Council Decision 2013/488/EU (21) and Commission Decision (EU, Euratom) 2015/444 (22) and created under the authority of the Commission.

(66)

The governmental services of the Programme could be used in security and safety critical missions and operations by Union and Member State actors. Therefore, in order to protect the essential security interests of the Union and its Member States, measures to ensure a necessary level of non-dependence on third parties (third countries and entities from third countries) are needed, covering all Programme elements. Such measures could include space and ground technologies at component, subsystem or system level, manufacturing industries, owners and operators of space systems, and physical location of ground system components.

(67)

On the sole basis of an agreement to be concluded in accordance with Article 218 TFEU, Members of the European Free Trade Association (EFTA) which are members of the European Economic Area (EEA), acceding countries, candidate countries and potential candidates as well as the European Neighbourhood Policy countries and other third countries may be allowed to participate in the Programme.

(68)

Pursuant to Council Decision (EU) 2021/1764 (23), persons and entities established in overseas countries or territories are eligible for funding subject to the rules and objectives of the Programme and possible arrangements applicable to the Member State to which the relevant overseas country or territory is linked.

(69)

Pursuant to paragraphs 22 and 23 of the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (24), the Programme should be evaluated on the basis of information collected in accordance with specific monitoring requirements, while avoiding administrative burden, in particular on Member States, and overregulation. Those requirements, where appropriate, should include measurable indicators as a basis for evaluating the effects of the Programme. The evaluation of the Programme should take into account the findings of the evaluation of the Union Space Programme pertaining to the GOVSATCOM component carried out within the framework of Regulation (EU) 2021/696.

(70)

In order to ensure the continuing adequacy of the indicators to report on the progress of the Programme, as well as the Programme’s monitoring and evaluation framework, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of amending the Annex to this Regulation with regard to the indicators, of supplementing this Regulation with provisions on the establishment of a monitoring and evaluation framework and of supplementing this Regulation by specifying the characteristics of a database of the Programme’s space assets, as well as the methodology and the processes to maintain and update it. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(71)

In the interests of sound public governance and given the synergies between the Programme and the GOVSATCOM component, the Programme committee established within the framework of Regulation (EU) 2021/696 in the GOVSATCOM configuration should also serve as the committee for the purposes of the Programme. For matters pertaining to the security of the Programme, the Programme committee should meet in a dedicated security configuration.

(72)

As sound public governance requires uniform management of the Programme, faster decision making and equal access to information, representatives of the entities entrusted with tasks related to the Programme might be able to take part as observers in the work of the Programme committee established in application of Regulation (EU) No 182/2011 of the European Parliament and of the Council (25). For the same reasons, representatives of third countries and international organisations who have concluded an international agreement with the Union, relating to the Programme, might be able to take part in the work of the Programme committee subject to security constraints and as provided for in the terms of such agreement. The representatives of entities entrusted with tasks related to the Programme, third countries and international organisations should not be entitled to take part in the Programme committee voting procedures. The conditions for the participation of observers and ad hoc participants should be laid down in the rules of procedure of the Programme committee.

(73)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission relating to the adoption of: the detailed rules on the provision of governmental services, the operational requirements for governmental services, the service portfolio for governmental services, the contribution decisions regarding the contribution agreements and the work programmes, as well as establishing additional requirements for the participation of third countries and international organisations in the Programme. Those powers should be exercised in accordance with Regulation (EU) No 182/2011.

(74)

Governmental services that are based on governmental infrastructure should, as a general rule, be provided free of charge to government-authorised users. However, capacity for those services is limited. If, after analysis, the Commission concludes that there is a shortage of capacities, it should be permitted to adopt a pricing policy, in duly justified cases where demand exceeds the access capacity, as part of those detailed rules on the service provision, to match the supply and demand of services. In order to ensure uniform conditions for the implementation of this Regulation, implementing powers relating to the adoption of such a pricing policy should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011.

(75)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers relating to laying down measures required to determine the location of the centres belonging to the ground governmental infrastructure should be conferred on the Commission. For the selection of such locations, the Commission should be able to take into account the operational and security requirements, as well as the existing infrastructure. Those powers should be exercised in accordance with Regulation (EU) No 182/2011.

(76)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers relating to determining general security requirements should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011. Member States should be able to exert a maximum of control over the Programme’s general security requirements. When adopting implementing acts in the area of security of the Programme, the Commission should be assisted by the Programme committee, meeting in a dedicated security configuration. In view of the sensitivity of security matters, the chair of the Programme committee should endeavour to find solutions which command the widest possible support within the Programme committee. The Commission should not adopt implementing acts determining the general security requirements of the Programme in cases where no opinion is delivered by the Programme committee. Where the involvement of the security configuration of the Programme committee is otherwise provided for, such involvement should take place in accordance with the rules of procedure of the Programme committee.

(77)

The Programme complements the existing Union Space Programme by integrating and extending its objectives and actions to create a secure and space-based connectivity system for the Union. The evaluation of the Programme should take this into account.

(78)

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

(79)

The Programme should be established for a period of five years to align its duration with that of the multiannual financial framework for the years 2021 to 2027 laid down in Council Regulation (EU, Euratom) 2020/2093 (26) (‘MFF 2021-2027’).

(80)

In order to allow for the implementation of this Regulation to start as soon as possible, with a view to reaching its objectives, it should enter into force as a matter of urgency,

(1)

Commission Delegated Regulation (EU) 2016/127 (2) lays down, amongst other things, specific compositional requirements for infant formula and follow-on formula manufactured from protein hydrolysates. It provides that infant formula and follow-on formula manufactured from protein hydrolysates are to comply with the requirements for protein content, protein source, protein processing as well as with the requirements for indispensable and conditionally indispensable amino acids and L-carnitine as set out in point 2.3 of Annex I and point 2.3 of Annex II to that Regulation.

(2)

As stated in Delegated Regulation (EU) 2016/127, in its opinion of 24 July 2014 on the essential composition of infant and follow-on formulae (3), the European Food Safety Authority (‘the Authority’) noted that the safety and suitability of each specific formula containing protein hydrolysates has to be established by clinical evaluation in the target population. So far, the Authority has evaluated positively two protein hydrolysates used in infant and follow-on formulae. The composition of those two protein hydrolysates is reflected in the requirements currently set out in Delegated Regulation (EU) 2016/127. However, those requirements may be updated in order to allow the placing on the market of a formula manufactured from protein hydrolysates with a composition different from those already positively assessed, following a case-by-case evaluation by the Authority of their safety and suitability.

(3)

On 6 February 2019, the Commission received a request from meyer.science GmbH, on behalf of HIPP-Werk Georg Hipp OHG and Arla Foods Ingredients, for the evaluation by the Authority of the safety and suitability of an infant and follow-on formula manufactured from a protein hydrolysate, the composition of which does not comply with the requirements laid down in point 2.3 of Annex I and point 2.3 of Annex II to Delegated Regulation (EU) 2016/127.

(4)

Upon request from the Commission, the Authority issued a scientific opinion on 9 March 2022 on the nutritional safety and suitability of that infant and follow-on formula (4). In that opinion, the Authority concluded that the protein hydrolysate in question is a nutritionally safe and suitable protein source for use in an infant and follow-on formula, as long as the formula in which it is used contains a minimum of 0,45 g/100 kJ (1,9 g/100 kcal) protein and complies with the other compositional criteria set out in Delegated Regulation (EU) 2016/127 and with the amino acid pattern contained in Section A of Annex III to that Regulation.

(5)

Taking into account the Authority’s conclusions, it is appropriate to allow the placing on the market of infant and follow-on formula manufactured from the protein hydrolysate in question. Therefore, the requirements for protein hydrolysates set out in Delegated Regulation (EU) 2016/127 should be updated and adapted to include also the requirements for that protein hydrolysate.

(6)

Annexes I, II and III to Delegated Regulation (EU) 2016/127 should therefore be amended accordingly.

(7)

Delegated Regulation (EU) 2016/127 applies to infant and follow-on formula manufactured from protein hydrolysates as of 22 February 2022. In order to allow the placing on the market of infant and follow-on formula manufactured from hydrolysed protein in accordance with the requirements set out in this Regulation without unnecessary delay, this Regulation should enter into force as a matter of urgency,

(1)

The Latvian language version of Commission Delegated Regulation (EU) 2019/2035 (2) contains errors in its title and in recital (1) as regards rules for establishments keeping terrestrial animals and hatcheries, in recital (2) as regards the approval of hatcheries, in recital (11) as regards hatcheries of captive birds and hatcheries of poultry. That Regulation also contains several errors, which affect the scope of the following provisions: in Article 1(3) as regards hatcheries of captive birds; in Article 1(3), second subparagraph, point (b) as regards hatching eggs from hatcheries; in Article 1(6)(b) as regards the information obligations of the competent authority as regards its registers of hatcheries; in Article 1(9) as regards registered or approved hatcheries; in Part II, Title I, the title of Chapter 2 as regards hatcheries; in Article 7, the title and the introductory phrase as regards the requirements for granting approval of hatcheries from which hatching eggs of poultry or day-old chicks are to be moved to another Member State; in Article 18, the title and the introductory phrase as regards registers of establishments of kept terrestrial animals and hatcheries; in Part II, Title III, the title of Chapter 2 as regards hatcheries; in Article 33, the title, the introductory phrase and point (a) as regards the record-keeping obligations of operators of hatcheries; in Annex I, Part 3, the title as regards the requirements for granting approval of hatcheries; in Annex I, Part 3, point 1, the introductory phrase and points (a) and (b) as regards requirements in relation to biosecurity measures of hatcheries; in Annex I, Part 3, point 2, the introductory phrase and point (b) as regards the requirements in relation to the surveillance of hatcheries; in Annex I, Part 3, point 3, the introductory phrase and points (a), (c) and (f) as regards the requirements in relation to the facilities and equipment of hatcheries; Annex I, part 3, point 5, the introductory phrase and point (a)(i) as regards the requirements in relation to the supervision by the competent authority of hatcheries; in Annex I, Part 4, point 1(a)(ii) as regards the requirements in relation to biosecurity measures of establishments keeping poultry; in Annex I, Part 4, point 2(b) as regards the requirements in relation to surveillance of establishments keeping poultry; in Annex I, Part 4, point 3(b)(iii) and point 3(e) as regards the requirements in relation to the facilities and equipment of establishments keeping poultry; in Annex II, the title as regards microbiological control programme in hatcheries and disease surveillance programmes in establishments keeping poultry and in hatcheries; Annex II, Part 1, the title as regards the microbiological control programme in hatcheries; in Annex II, Part 2, the title as regards diseases surveillance programmes in hatcheries and in establishments keeping poultry; in Annex II, Part 2, point 2.4(b), the introductory phrase and point (iv) as regards the requirements in relation to sampling matrix; in Annex II, Part 2, point 2.5(b), first sentence and points i) and ii) as regards the requirements in relation to sampling frame and frequency of sampling.

(2)

The Latvian language version of Delegated Regulation (EU) 2019/2035 should therefore be corrected accordingly. The other language versions are not affected,

(1)

On 17 January 2019, the Commission imposed a definitive anti-dumping duty on imports into the Union of electric bicycles, originating in the People’s Republic of China (‘the PRC’) (‘the product concerned’) by Implementing Regulation (EU) 2019/73 (the original Regulation).

(2)

In the original investigation, sampling was applied for investigating the exporting producers in the People’s Republic of China in accordance with Article 17 of Regulation (EU) 2016/1036.

(3)

The Commission imposed individual anti-dumping duty rates ranging from 10,3 % to 62,1 % on imports of electric bicycles for the sampled exporting producers from the People’s Republic of China. For the cooperating exporting producers that were not included in the sample (with the exception of the companies subject to the parallel countervailing duty rate for all other companies Commission Implementing Regulation (EU) 2019/72 (3)) a weighted average duty of 24,2 % was imposed. These cooperating exporting producers not included in the sample are listed in Annex I to the original Regulation. A weighted average duty of 16,2 % was imposed on other cooperating companies not included in the sample (subject to the parallel countervailing duty rate for all other companies – Implementing Regulation (EU) 2019/72). These are listed in Annex II to the original Regulation. Furthermore, a country-wide duty rate of 70,1 % was imposed on electric bicycles from companies in People’s Republic of China which either did not make themselves known or did not cooperate with the anti-dumping investigation, but cooperated in the parallel anti-subsidy investigation (listed in Annex III to the original Regulation).

(4)

Pursuant to Article 1, paragraph 6, of the original Regulation, paragraph 2 of that Article may be amended by adding the new exporting producer to the appropriate annex with the cooperating companies not included in the sample and thus subject to the appropriate weighted average anti-dumping duty rate, where that new exporting producer in People’s Republic of China provides sufficient evidence to the Commission that:

(5)

The company Zhejiang Jollo Technology Co., Ltd (‘the applicant’) submitted a request to the Commission to be granted new exporting producer treatment and hence be subject to the duty rate applicable to the cooperating companies in the People’s Republic of China not included in the sample, subject to the parallel countervailing duty rate for all other companies, i.e. 16,2 % (‘NEPT’), claiming that it met all three conditions set out in Article 1, paragraph 6, of the original Regulation.

(6)

In order to determine whether the applicant fulfilled the conditions for being granted NEPT, as set out in Article 1, paragraph 6 of the original Regulation (‘the NEPT conditions’), the Commission first sent a questionnaire to the applicant requesting evidence showing that it met the NEPT conditions. The applicant provided a questionnaire reply.

(7)

The Commission sought to verify all information it deemed necessary for the purpose of determining whether the applicant met the NEPT conditions.

(8)

With regard to the condition set out in Article 1, paragraph 6, of the original Regulation that the applicant did not export the product concerned to the Union during the period of investigation on which the measures are based, that is from 1 October 2016 to 30 September 2017 (‘the original investigation period’), during the investigation the Commission established that the applicant could not have exported electric bicycles to the Union during the period of investigation as the applicant provided evidence that it was established in 2021.

(9)

With regard to the condition set out in Article 1, paragraph 6, of the original Regulation, that the applicant is not related to any exporters or producers which are subject to the anti-dumping measures imposed by the original Regulation, during the investigation the Commission established that the applicant is not related to any of the exporters or producers in the People’s Republic of China that are subject to the anti-dumping measures imposed by the original Regulation and which could have cooperated in the original investigation.

(10)

With regard to the condition set out in Article 1, paragraph 6, of the original Regulation, that the applicant has actually exported the product concerned to the Union after the original investigation period or has entered into an irrevocable contractual obligation to export a significant quantity to the Union, during the investigation the Commission established that based on the documentary evidence provided, the applicant had actually exported electric bicycles to the Union following the investigation period. The applicant provided sales documentations for transactions to Spain (June 2021) and Italy (August 2022).

(11)

Consequently, the Commission concluded that the applicant complies with the condition set out in Article 1, paragraph 6, of the original Regulation.

(12)

Accordingly, the applicant fulfils all three conditions to be granted NEPT, as set out in Article 1, paragraph 6, of the original Regulation and the request should therefore be accepted. Consequently, the applicant should be subject to an anti-dumping duty of 16,2 % for cooperating companies not included in the sample of the original investigation and subject to the parallel countervailing duty rate for all other companies – Implementing Regulation (EU) 2019/72.

(13)

The applicant and the Union industry were informed of the essential facts and considerations based on which it was considered appropriate to grant the anti-dumping duty rate applicable to the cooperating companies not included in the sample of the original investigation to Zhejiang Jollo Technology Co., Ltd.

(14)

The parties were granted the possibility to submit comments. No comments were received.

(15)

The Regulation is in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036 of the European Parliament and the Council,

(1)

Imports of biodiesel originating in Argentina are subject to definitive countervailing duties imposed by Commission Implementing Regulation (EU) 2019/244 (2) (the original investigation).

(2)

Oleaginosa Moreno Hermanos S.A.C.I.F.I. y A (the applicant), an Argentinian exporting producer, TARIC (3) additional code C497, subject to an individual countervailing duty rate of 25,0 %, informed the Commission on 23 May 2022 that it had changed its name to Viterra Argentina S.A.

(3)

The company considered that the change of name does not affect its rights to benefit from the individual countervailing duty rate applied to it under its previous name and requested the Commission to confirm it.

(4)

The European Association of biodiesel producers (EBB) did not agree with the applicant arguing that it had undergone more complex structural change affecting its right to continue benefitting from the level of measure established in the original investigation.

(5)

The Commission collected information and examined the evidence supplied by the applicant and considered that the change of name was properly registered with the relevant authorities, and did not result in any new relationship with other groups of companies which were not investigated by the Commission in the original investigation.

(6)

The evidence in the file confirmed the applicant’s statement that the change of the name has been approved by Public Registry of Commerce of Argentina on 3 May 2022 and the Federal Administration of Public Revenue on 1 July 2022. Accordingly, the Commission concluded that the change of name does not affect the findings of Implementing Regulation (EU) 2019/244 and in particular the countervailing duty rate applicable to it.

(7)

Based on the above, the name change should take effect as of the date on which the company was officially operating under the new name, i.e. 1 July 2022.

(8)

The Union industry (EBB) in its comments to the disclosure reiterated the arguments initially submitted on the request for a name change. It alleged that the change of name was hiding a more complex structural change, that the applicant increased its biodiesel activities by different acquisitions, changed CEO, became leader in the agricultural sector in Argentina, and that it was, somehow, related to another exporting producer, which had gone bankrupt.

(9)

It is recalled that all exporting producers in Argentina are subject to a price undertaking whereby they must respect a minimum import price and export their biodiesel to the Union below a volume threshold, which is annually revised for the whole country.

(10)

The Commission examined the above allegations and noted that the industry did not provide sufficient evidence corroborating their claims. The Commission did not find evidence pointing to an impact of the applicant’s activities in the agricultural sector, or its alleged production capacity increase on the measures currently in place. The mere name change will not allow the applicant to export a higher volume to the Union or sell below the minimum price periodically fixed by the Commission and thus cannot affect or undermine the measures currently in force. The claims made by the Union industry could not be taken into account and were therefore rejected.

(11)

Given the considerations in the recitals above, the Commission considered it appropriate to amend Implementing Regulation (EU) 2019/244 to reflect the changed name of the company previously attributed to additional TARIC code C497.

(12)

The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (4).

(1)

Following an anti-dumping investigation in accordance with Article 5 of the basic Regulation, on 2 May 2017 the Commission adopted Implementing Regulation (EU) 2017/763 (2) imposing a definitive anti-dumping duty on imports into the Union of certain lightweight thermal paper (‘LWTP’) originating in the Republic of Korea (‘the country concerned’) (‘the Regulation at issue’). The measures took the form of fixed duty rates: EUR 104,46 per tonne net for both the Hansol group and for all other companies.

(2)

The Hansol group (Hansol Paper Co. Ltd. and Hansol Artone Paper Co. Ltd.) (‘Hansol’) challenged the Regulation at issue before the General Court. On 2 April 2020, the General Court issued its judgment in Case T-383/17 annulling Implementing Regulation (EU) 2017/763 insofar as it concerned Hansol. On 11 June 2020, the Commission appealed the judgment of the General Court (Case C-260/20 P). On 12 May 2022, the Court of Justice rejected the appeal.

(3)

The General Court found that the Commission had committed an error when establishing normal value for at least one product type sold by Hansol Artone Paper Co. Ltd. (‘Artone’). Absent domestic sales of that product type, the Commission had, pursuant to Article 2(3) of the basic Regulation, constructed normal value for Artone on the basis of Artone’s cost of production. As Hansol Paper Co. Ltd. (‘Hansol Paper’) had representative domestic sales in the ordinary course of trade of that product type, the General Court found that the Commission should have used the domestic sales price of that party as a normal value, pursuant to Article 2(1) of the basic Regulation.

(4)

The General Court also found that the Commission had made a manifest error of assessment in the weighting of sales in the European Union of jumbo rolls to independent customers as compared with sales to related converters for conversion into small rolls. The Commission had applied such weighting to properly reflect Hansol’s overall dumping behaviour whereas Hansol, at its request, had been granted an exemption for three of its related converters to complete a questionnaire. The General Court found that, by not accounting for a certain resales volume of Schades Nordic, one of these three related converters in the Union, the Commission had underestimated the weight of Hansol’s sales of jumbo rolls to independent customers which had a significantly lower dumping margin than its sales to related converters for resale in the form of small rolls to independent traders. The Commission had therefore infringed Article 2(11) of the basic Regulation as the calculations made by the Commission did not reflect the full extent of dumping practiced by Hansol.

(5)

The General Court finally found that the weighting error described under recital (4) also affected the calculation of the undercutting and injury margin, since the Commission had used the same weighting for those calculations. It therefore found that the Commission had infringed Article 3(2) and 3(3) of the basic Regulation.

(6)

These findings were upheld by the Court of Justice (5).

(7)

According to Article 266 of the Treaty on the Functioning of the European Union (‘TFEU’), the Union institutions are obliged to take the necessary steps to comply with the Union Courts’ judgments. In case of an annulment of an act adopted by the Union institutions in the context of an administrative procedure, such like the anti-dumping investigation in this case, compliance with the General Court’s judgment consists in the replacement of the annulled act by a new act, in which the illegality identified by the General Court is eliminated (6).

(8)

According to the case-law of the General Court and the Court of Justice, the procedure for replacing an annulled act may be resumed at the very point at which the illegality occurred (7). That implies, in particular, that in a situation where an act concluding an administrative procedure is annulled, that annulment does not necessarily affect the preparatory acts, such as the initiation of the anti-dumping procedure. For instance, where a regulation imposing definitive anti-dumping measures is annulled, the proceeding remains open because it is only the act concluding the proceeding that has disappeared from the Union legal order (8), except in cases where the illegality occurred at the stage of initiation. The resumption of the administrative procedure with the re-imposition of anti-dumping duties on imports that were made during the period of application of the annulled regulation cannot be considered as contrary to the rule of non-retroactivity (9).

(9)

In the present case, the General Court annulled the Regulation at issue as regards Hansol on the grounds mentioned under recitals (3) to (5).

(10)

Findings in the Regulation at issue, which were not contested, or which were contested but rejected by the General Court or not examined by the General Court, and therefore did not lead to the annulment of the Regulation at issue, remain fully valid (10).

(11)

Following the Court of Justice’s judgment in Case C-260/20 P, the Commission decided to partially re-open the anti-dumping investigation concerning imports of certain lightweight thermal paper that lead to the adoption of the Regulation at issue and to resume the investigation at the point at which the irregularities occurred. A Notice (‘the re-opening Notice’) was published in the Official Journal of the European Union on 30 June 2022 (11). The re-opening was limited in scope to the implementation of the judgment of the Court of Justice with regard to Hansol.

(12)

At the same time, the Commission decided to make imports of certain lightweight thermal paper originating in the Republic of Korea and produced by Hansol subject to registration and requested national customs authorities to await the publication of the relevant Commission Implementing Regulation re-imposing the duties before deciding on any claims for repayment and remission of anti-dumping duties insofar as imports concerning Hansol’s products were concerned (12) (‘the registration Regulation’).

(13)

The Commission informed interested parties of the re-opening and invited them to comment.

(14)

The Commission received comments from Hansol and the European Thermal Paper Association (‘ETPA’) and its members.

(15)

Hansol noted that in the registration Regulation, the Commission had relied on the judgments of the General Court in Cases T-440/20 and T-441/20 (‘Jindal Saw’) (13) for concluding that registration was a tool so that measures may subsequently be applied against imports from the date of registration. Hansol submitted that these judgments were not yet final and that they did not apply to the present situation, as in Case T-383/17 the General Court had stated that the regulation was illegal whereas it had not stated so in Cases T-440/20 and T-441/20. It also argued that in Jindal Saw the company concerned, Jindal Saw, was one of several exporting producers and there were several countries concerned, whereas Hansol is the sole exporting producer in the case at hand which concerns only Korea. On that basis, Hansol submitted that the Commission may therefore not rely on the Jindal Saw judgments to retroactively collect the final liability for the payment of the anti-dumping duties on imports of the product concerned manufactured by Hansol.

(16)

Concerning the fact that the Jindal Saw judgment could still be appealed, ETPA submitted that these judgments replicate long-established case-law. ETPA also disputed the differences alleged by Hansol between the judgments in Jindal Saw and that in T-383/17, as in the operative part of the judgments in T-300/16 and T-301/16 (the cases preceding T-440/20 and T-441/20 by which the original regulations in Jindal Saw were annulled), like in T-383/17, the General Court annulled the contested regulation in its entirety, in so far as it concerns the applicant. According to ETPA, the fact that the judgment annulled the Regulation at issue only for Hansol also entails that, contrary to Hansol’s claim, it still forms part of the legal order of the Union.

(17)

In this respect, the Commission noted that the fact that the judgment in Case T-440/20 was still not final when the registration regulation was published does not imply that registration was not possible in this case. The General Court in that case endorsed the Commission practice of registering imports when implementing judgments, supporting the fact that the Commission can indeed register imports in such situations. The General Court stated that Article 14 of the basic Regulation, empowering the Commission to require national authorities to take appropriate measures to register imports, is of general application. In particular the General Court noted that ‘Article 14(5) of that regulation is not subject to any restriction as to the circumstances in which the Commission is empowered to require the national customs authorities to register goods’. The General Court further stated that ‘depriving the Commission of the right to resort to registration as part of proceedings for reimposing a definitive anti-dumping duty is liable to undermine the effectiveness of regulations that may lead to such a reimposition’. The judgment in any event became final in the meantime. The claim was therefore rejected.

(18)

Concerning Hansol’s claim that the Regulation at issue no longer stands as Hansol, for which it was annulled, was the only exporting producer concerned by that Regulation, the Commission noted that, without entering into the legal relevance of the claim, the claim is factually incorrect. Indeed, the fact that no other producers from the Republic of Korea exporting to the Union in the investigation period had been identified does not mean that Implementing Regulation (EU) 2017/763 only applies to Hansol. Indeed, in the Regulation at issue, the Commission also imposed duties on other exporting producers via the residual duty. (14) Moreover, the General Court annulled the contested Regulation only ‘in so far as it concerns Hansol Paper Co. Ltd.’. The claim was therefore rejected.

(19)

Hansol further indicated a concern that the Commission would possibly not correctly understand how to correct the issue of the weighting. Hansol claimed that, according to the judgment of the General Court, the percentage representing the resales of jumbo rolls by Schades Ltd. in the total sales of Jumbo rolls by Hansol Paper, Artone, and its related trader Hansol Europe to its related trader Schades Ltd., should be applied to the quantity of sales of jumbo rolls to its related converters (Schades Nordic, Heipa and R+S) for resales. The resulting quantity should be added to the quantity of sales of jumbo rolls (direct and indirect) used for the dumping margin calculation and deducted from the quantity of sales of jumbo rolls to Schades Nordic, Heipa and R+S for conversion. On that basis, Hansol provided a recalculation of the weighting between the direct and indirect sales of jumbo rolls to independent customers versus the sales to related converters for resales in the form of small rolls to independent customers. ETPA underlined that during the investigation, in addition to Schades Ltd., the only converter related to Hansol that also resold jumbo rolls was Schades Nordic and that therefore only for that reason already such an approach would not be in line with the evidence available to the Commission. It also emphasized that, while the General Court identified certain errors in the approach adopted by the Commission in the original investigation, it did not impose an approach for a revised weighting calculation and clarified that it is up to the Commission to decide what measures are appropriate to ensure compliance with the judgment.

(20)

With regard to this issue, the Commission noted that the method proposed by Hansol is fundamentally different from the method used by the Commission in its dumping calculation for the Regulation at issue. In that calculation establishing Hansol’s margins, the Commission quantified the total direct and indirect sales of jumbo rolls to unrelated customers made by the Hansol group as a whole as reported in the questionnaire replies of the different group entities in their sales tables. On that basis the Commission established the weight of such sales as compared to the weight of jumbo rolls for conversion into small rolls. Hansol’s proposal to apply the calculated share of jumbo rolls resales by Schades Ltd. as compared to Schades Ltd’s total purchase volumes to the other three related converters is a fundamentally different and less accurate method, in view of the jumbo roll resales volumes of the three related converters which did not reply to the questionnaire, as reported by Hansol during the proceeding.

(21)

The Commission further clarified that, whereas the General Court found that the Commission had erred by not including in the calculation the jumbo rolls resales volumes reported in the proceeding by Schades Nordic (15), it had not disqualified the Commission’s methodology as such. The Commission therefore strictly adhered to the General Court’s ruling by keeping the methodology for establishing the respective weight unchanged, except for the fact that it now added the volumes of jumbo rolls sold by Schades Nordic, Heipa and R+S, as required by the General Court. That calculation was further explained in the limited company-specific disclosure.

(22)

For two product types exported to the Union by Artone, the Commission had, in its calculating of dumping, constructed normal value in the absence of representative domestic sales of that party. In paragraph 148 and paragraphs 152-158 of the judgment in Case T-383/17 and paragraphs 79 and 85 of the judgment in Case C-260/20 P, the Union Courts found that, according to both the wording and the structure of the first subparagraph of Article 2(1) of the basic Regulation, it was the price actually paid or payable in the ordinary course of trade which must, as a matter of priority, be taken into consideration to establish the normal value. When the exporter does not sell the like product domestically, the normal value is to be established on the basis of prices of other sellers or producers as a matter of priority, and not on the basis of the production costs of the company concerned.

(23)

One of the two product types referred to in recital (22) was indeed sold on the domestic market in representative quantities and in the ordinary course of trade by the related company Hansol Paper and, therefore, the General Court found that the Commission had infringed Article 2(1) of the basic Regulation in the context of the calculation of the normal value of Artone.

(24)

Thus, the Commission revised the calculation of the normal value for that product type by replacing Artone’s constructed normal value by the normal value of Hansol Paper as regards that product type.

(25)

The other product type exported by Artone for which normal value was constructed did not have representative domestic sales by Hansol Paper either. Indeed, Hansol Paper’s domestic sales volumes fell well below the 5 % threshold of Article 2(2) of the basic Regulation. Consequently, and pursuant to Article 2(3) of the basic Regulation, the normal value of that product type had also been constructed for Hansol Paper. In the absence of representative sales prices in the ordinary course of trade of other sellers or producers in the exporting country, the construction of Artone’s normal value for this product type was therefore maintained.

(26)

In the investigation leading to the Regulation at issue, the Commission had received questionnaire replies from Hansol, Artone, Hansol Europe (a related trader in the Union) and Schades UK Ltd., a related trader/converter located in the Union. Three converters located in the Union and related to the Hansol Group, i.e. Schades Nordic, Heipa and R+S, had requested an exemption to complete the questionnaire for companies related to the exporting producer (Annex I to the questionnaire). These parties converted the product concerned for resale, in small rolls, to independent customers. The Commission accepted their exemption request, which was based on the absence or limited volume of sales of the product concerned by these parties.

(27)

As per Article 2(11) of the basic Regulation, the Commission is obliged to take into account all of the export transactions to the Union when calculating the dumping margin. In order to include in its calculation of dumping the significant volume of sales by the Hansol Group to the related converters which had been exempted from completing a questionnaire, the Commission had extended the results of the dumping calculation by applying a weighting of the dumping margins calculated on the basis of the verified questionnaire replies of Hansol Paper, Artone, Hansol Europe and Schades UK Ltd. For that purpose, the Commission attributed a weight of between 15 % and 25 % to the dumping margin established for direct sales and sales of the product concerned through related companies and a weight of between 75 % and 85 % to the dumping margin established for sales to related converters for resale as small rolls to unrelated parties (16).

(28)

The General Court and the Court of Justice found that the Commission had infringed Article 2(11) and 9(4) of the basic Regulation. They found that the weighting used was vitiated by a manifest error as a certain volume of product concerned resold by Schades Nordic had been neglected. The volume of direct and indirect sales of the product concerned had thus been understated in the calculation of the weighting and the full extent of the dumping had consequently not been reflected in the calculations (17).

(29)

In light of the findings of the Union Courts as summarized in recital (28), the Commission reviewed the weighting calculation. It did so by adding to the volume of direct and indirect sales of the product concerned used for that computation, the volume of Hansol jumbo rolls resales through Schades Nordic as reported by Hansol during the investigation. The weight of Hansol’s direct and indirect sales of the product concerned as compared to its total sales to the Union consequently increased by 0,7 percentage points, whereas the weight of its sales to related converters for resale as small rolls to unrelated parties decreased by the same percentage.

(30)

The Commission recalculated the dumping margin for Hansol, by replacing the constructed normal value of one product type sold by Artone by a normal value based on the domestic sales price of that product type achieved by Hansol Paper, as explained in recital (24), and by revising the weighting of the established dumping margins for the two kinds of sale, as explained in recital (29).

(31)

On that basis, the revised definitive weighted average dumping margin of the Hansol Group, expressed as a percentage of the CIF Union frontier price, duty unpaid, was lowered from 10,3 % to 10,2 %.

(32)

In the Regulation at issue, the same weighting which had been applied to the dumping margins for direct and indirect sales of the product concerned, on the one hand, and for sales to related converters for resale as small rolls to unrelated parties, on the other, had also been applied to calculate Hansol’s undercutting margin.

(33)

The Union Courts found that the error affecting the calculation of the weighting of sales also affected the price undercutting calculation and the assessment of the impact of the dumped imports on like products of the Union industry (18).

(34)

With regard to the calculation of undercutting, the Commission implemented the Court of Justice’s judgment by applying the revised weighting rates, as explained under recital (29), also to the undercutting margins for the direct and indirect sales of the product concerned, on the one hand, and for sales to related converters for resale as small rolls to unrelated parties, on the other.

(35)

The result of the comparison, expressed as a percentage of the sampled Union producers’ turnover during the investigation period, was a weighted average undercutting margin of 9,3 %.

(36)

The undercutting margin found during the investigation leading to the regulation at issue was 9,4 %. In view of the immaterial difference between that margin and the revised undercutting margin, the Commission concluded that that change did not warrant the reassessment of the injury or causation analysis. Therefore, it confirmed the findings in that respect as summarized in sections 4 and 5 of the Regulation imposing provisional measures (19) and recital (102) of the Regulation at issue.

(37)

On 14 November 2022, the Commission informed all interested parties of the above findings on the basis of which it intended to propose to re-impose the anti-dumping duty on imports of certain lightweight thermal paper originating in the Republic of Korea and manufactured by Hansol and adjust the residual duty, on the basis of the facts collected and submitted relating to the original investigation. Following the final disclosure, comments were received from Hansol, ETPA and the Government of the Republic of Korea (‘GOK’).

(38)

The GOK expressed its concerns with regard to the way the Commission had implemented the Union Courts’ judgments as it understood that the revised dumping calculations did not fully rectify the errors identified in these judgments. However, the GOK did not further specify in what sense the Commission would have erred.

(39)

ETPA strongly supported the Commission’s intended course of action.

(40)

In its comments to the disclosure, Hansol submitted that the Commission had not corrected the mistake with regard to the normal value calculation. Hansol also submitted that the Commission had not rectified the weighting error identified by the General Court and confirmed by the Court of Justice.

(41)

Hansol submitted that it agreed to the fact that the Commission had implemented the Union Courts’ judgments by using, for the comparison with Artone’s export price, the domestic sales price of Hansol Paper for a product type which that party had sold on the domestic market in representative quantities and in the ordinary course of trade (see recitals (23) and (24)). However, Hansol disagreed with the fact that the Commission, as explained in recital (25), had not done so for another product type not sold on the domestic market by Artone.

(42)

Hansol claimed that the Commission should nevertheless have used Hansol Paper’s sales prices of that product type hereafter also referred to as ‘product type X’ (the actual product type number is confidential). It argued that the General Court had ruled that the Commission should use other parties’ sales prices, if available, ‘as a matter of priority’. In this respect, it claimed that Hansol’s domestic sales of product type X were all profitable and, as a result, Hansol Paper’s constructed normal value for that product type was equal to a normal value based on sales prices. The constructed normal value being equal to the sales price, Hansol claimed that the Commission was under the obligation to use Hansol Paper’s sales price.

(43)

The Commission disagreed. First, it clarified that the General Court had confirmed that, pursuant to Article 2(3) of the basic Regulation, first subparagraph, if there are no or insufficient sales of the like product in the ordinary course of trade, the Commission shall derogate from the principle of using sales prices to establish normal value and shall base normal value on the basis of prices of other sellers or producers or, if these are not available, calculate normal value on the basis of cost of production. It specified, in paragraph 150 of the judgment in Case T-383/17, that an insufficiency of sales covers the situation in which sales of the like product in the exporting country constitutes less than 5 % of the sales volume of the product concerned to the Union. The General Court therefore confirmed that in this scenario the Commission shall not use domestic sales prices (20). In this case, Hansol Paper’s domestic sales volumes of product type X constituted less than 1 % of the sales of that product type to the Union, which is well below the 5 % threshold mentioned in Article 2(2) of the basic Regulation, and therefore its normal value of that product type was constructed by the Commission. It also recalled that during the investigation, Hansol never claimed that the Commission should not have constructed normal value of that product type for Hansol Paper. Absent of any other cooperating producer, as the Commission had constructed normal value of product type X for Hansol Paper, as explained above, and no alternative domestic sales price of that product type was therefore available, the Commission constructed normal value of product type X for Artone.

(44)

Second, the mere fact that the constructed normal value of a given product type is identical to the sales price thereof does not turn it into a normal value based on sales prices. A normal value established under Article 2(3) of the basic Regulation is a constructed normal value. Therefore, for the purpose of calculating dumping, this constructed normal value cannot be used for a comparison with other parties’ export prices as there is no provision for doing so in the basic Regulation. Hansol’s claim that the Union Courts’ judgments obliged the Commission to use Hansol Paper’s domestic sales price in Artone’s dumping calculation for that particular product type was therefore rejected.

(45)

Hansol further submitted that the Commission had not correctly understood the method that it should adopt to correct the weighting error. It invoked paragraph 86 of the judgment in Case T-383/17 and paragraph 64 of the judgment in Case C-260/20 P to claim that the Commission should have reflected the proportion of Schades UK Ltd. sales without conversion in Hansol’s sales to its other related traders and not simply add the volume of Schades Nordic sales without conversion to Hansol’s direct and indirect sales to independent customers. Hansol also brought forward that if the General Court would have considered that the Commission would rectify the weighting error as explained in recital (29), it would, in view of the limited impact, not have reached the conclusion that the weighting error could have affected the price undercutting calculation and the assessment of the impact of the dumped imports on like products of the Union industry.

(46)

As a preliminary comment, Hansol’s claim suggests that the Commission had used sampling, i.e. that it had applied Article 17(1) of the basic Regulation where it decided to use Schades UK Ltd.’s data in order to calculate the dumping margin for sales of the product concerned to related converters. The Commission noted that in paragraphs 63 to 69 of the judgment in Case T-383/17, the General Court dismissed the same claim. Indeed, the Commission decided to calculate the dumping margin on Hansol’s sales to the other three related converters on the export price data from Schades UK Ltd, because it was considered the best placed to provide the most accurate figures with regard to the majority of Hansol Group’s sales to related converters in the Union for subsequent resale as small roll to unrelated customers (21). For the purposes of Hansol Group’s dumping calculation, the Commission took the view that Schades UK Ltd. was the only converter related to the Hansol group to have resold the product concerned to independent customers. This conclusion was considered incorrect by the Union Courts in view of the available evidence on file as regards Schades Nordic.

(47)

Indeed, the Commission noted that Hansol, in the original investigation, had reported to the Commission that Schades Nordic had resold [170 – 190] tonnes without conversion to independent customers. It also reported that the other two related converters that had been exempted, Heipa and R+S, had no resales without conversion (22). Hansol did not provide any evidence of sales of jumbo rolls by either Heipa or R+S. Therefore, Hansol’s claim was in direct contradiction with the information that it had provided during the investigation.

(48)

In the judgment in Case C-260/20 P, the Court of Justice clearly stated that the Commission cannot exclude information provided by interested parties purely on the ground that it was provided other than by responding to the anti-dumping questionnaire (23). The Commission, after having reopened the investigation, complied with that finding as it had taken aboard the information provided by Hansol, in the investigation, on the resales of jumbo rolls by Schades Nordic, Heipa and R+S. As Hansol had reported that Heipa and R+S had no resales of the product concerned, no correction was needed with regard to the volumes established for these parties

(49)

Moreover, Hansol based its claim that the Commission should apply the proportion of Schades UK Ltd.’s sales without conversion to Hansol’s three other related traders in particular on the text in paragraph 86 of the judgment in Case T-383/17 which reads: ‘(…) it should be noted that the Commission decided to use Schades (UK Ltd’s) data in order to calculate the dumping margin on the sales made by the applicant to the three other related converters.(…)’. In this respect it also referred to the statement of the Court of Justice in paragraph 64 of the judgment in Case C-260/20 P, as follows: ‘as is apparent from paragraphs 85 and 86 of the judgment under appeal, the Commission had decided to use Schades (UK Ltd’s) data to calculate the dumping margin on Hansol’s sales to the other three related converters. (…) In view of the fact that the Commission knew that Schades (Nordic) had resold certain quantities of the product concerned to independent customers without conversion, the General Court held that that institution should have reflected this in the sales of the product concerned to the other related converters. (…)’.

(50)

The Commission considered that Hansol misread the statements made by the Union Courts. Indeed, Schades UK Ltd’s data was used to calculate the dumping margin on Hansol’s sales to the other three related converters as the dumping margin established for Schades UK Ltd.’s sales of jumbo rolls converted into small rolls was applied to the applicable volumes for conversion of Korean origin sold to these other three related converters. In paragraph 64 the Court of Justice noted, however, that the representative nature of Schades UK Ltd.’ data ‘in no way excluded the calculation based on those data from being vitiated by errors, given the failure to take account of all the relevant data in that regard’. In other words, the Court of Justice found that the use of Schades UK Ltd. as representative for Hansol’s sales to the other related converters did not imply that the Commission could disregard the evidence on file as regards sales of jumbo rolls to independent customers reported by Schades Nordic. It did not require the Commission to reflect or extent the same proportion of Schades Ltd’s sales without conversion in Hansol’s sales to its other related traders. That would contradict the actual evidence on file, which has not been contested by Hansol. Through the re-opening of the investigation, and unlike previously done, the Commission fully considered the amounts of jumbo rolls sold to Hansol’s related converters in the Union that resold jumbo rolls without conversion.

(51)

It is with regard to the [170 – 190] tonnes of resales of the product concerned to independent customers by Schades Nordic that the General Court and the Court of Justice had established an error as these resales, that had been reported by Hansol in the procedure by other means than through a questionnaire reply, had not been considered by the Commission. This was corrected, as explained in recital (29), by adding to the volume of direct and indirect sales of the product concerned that volume of Hansol’s jumbo rolls resales through Schades Nordic as reported by Hansol during the investigation. No further adjustments needed to be made, as Hansol had reported that the converters Heipa and R+S had not made any resales of the product concerned to independent customers.

(52)

Finally, the Commission rejected that the fact that the correction made by the Commission has a small impact only on the undercutting margin and no impact on the injury and causation analysis would demonstrate that the Commission had misunderstood the Union Courts’ judgments. The General Court judgment says that ‘it could not be excluded’ that the Commission’s error could have had an impact and not that it had an impact on the injury and causation analysis. (24) In the same vein, the Court of Justice noted in paragraph 62: ‘The fact that, in light of those data, it was, at the very least, possible that the Commission had given too great a weighting to sales made to related converters for the purposes of conversion into small rolls, thereby increasing the actual dumping practised by Hansol, was sufficient to call in question the reliability and objective nature of the Commission’s assessment of the dumping practised by Hansol’. Therefore, the fact that the correction of the weighing had a small impact on the revised undercutting demonstrates nothing but that the error identified by the General Court was immaterial. Thus, this claim was rejected.

(53)

The error identified by the General Court and upheld by the Court of Justice on the weighting of sales also affected the calculation of the injury margin. The Commission implemented the Union Courts’ judgments by applying the revised weighting rates, as explained under recital (29), also to the injury margins for the direct and indirect sales of the product concerned, on the one hand, and for sales to related converters for resale as small rolls to unrelated parties, on the other.

(54)

The result of the comparison resulted in an injury margin for Hansol of 36,9 %, whereas the injury margin established during the investigation leading to the regulation at issue was 37 % (25). Given that the re-established dumping margin is lower than the injury margin, in accordance with the applicable rules, the anti-dumping duty rate should be set at the level of the dumping rate. Accordingly, the re-imposed anti-dumping duty rate for Hansol is 10,2 %.

(55)

The Commission recalled that the anti-dumping duty was imposed as a fixed amount in euro per tonne net. The revised definitive duty rate of 10,2 % represents a fixed duty rate of EUR 103,16 per tonne net.

(56)

The Commission also recalled that the level of cooperation in this case was high, as the imports of Hansol constituted the total exports to the Union during the investigation period. Therefore, the residual anti-dumping duty was set at the level of the cooperating company. Consequently, the residual definitive duty rate, applicable to all other companies, was revised to a fixed duty rate of EUR 103,16 per tonne net.

(57)

The revised level of anti-dumping duty applies without any temporal interruption since the entry into force or the Regulation at issue (namely, as of 4 May 2017 onwards). Customs authorities are instructed to collect the appropriate amount on imports concerning Hansol’s products and refund any excess amount collected so far in accordance with the applicable customs legislation.

(58)

In view of Article 109 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (26), when an amount is to be reimbursed following a judgment of the Court of Justice of the European Union, the interest to be paid should be the rate applied by the European Central Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union on the first calendar day of each month.

(59)

On the basis of the above, the Commission considered it appropriate to re-impose the definitive anti-dumping duty on imports of certain lightweight thermal paper weighing 65 g/m2 or less; in rolls of a width of 20 cm or more, a weight of the roll (including the paper) of 50 kg or more and a diameter of the roll (including the paper) of 40 cm or more (‘jumbo rolls’); with or without a base coat on one or both sides; coated with a thermos-sensitive substance on one or both sides; and with or without a top coat, currently falling under CN codes ex 4809 90 00, ex 4811 90 00, ex 4816 90 00 and ex 4823 90 85 (TARIC codes: 4809900010, 4811900010, 4816900010, 4823908520), originating in the Republic of Korea at a fixed duty rate of EUR 103,16 per tonne.

(60)

The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036,

(1)

African swine fever is an infectious viral disease affecting kept and wild porcine animals and can have a severe impact on the concerned animal population and the profitability of farming causing disturbance to movements of consignments of those animals and products thereof within the Union and exports to third countries.

(2)

Regulation (EU) 2016/429 establishes a legislative framework for the prevention and control of diseases, which are transmissible to animals or humans. African swine fever falls within the definition of a listed disease in that Regulation, and it is subject to the disease prevention and control rules laid down therein. In addition, the Annex to Commission Implementing Regulation (EU) 2018/1882 (2) lists African swine fever as a category A, D and E disease affecting Suidae, while Commission Delegated Regulation (EU) 2020/687 (3) supplements the rules for the control of category A, B and C diseases laid down in Regulation (EU) 2016/429, including disease control measures for African swine fever.

(3)

Regulation (EC) No 1069/2009 of the European Parliament and of the Council (4) lays down animal health rules for animal by-products in order to prevent and minimise risks to animal health arising from those by-products. In addition, Commission Regulation (EU) No 142/2011 (5) lays down certain animal health rules for animal by-products falling within the scope of Regulation (EC) No 1069/2009, including rules regarding the certification requirements for movements of consignments of those by-products in the Union. Those Regulations do not cover all the specific details and aspects in relation to the risk of the spread of African swine fever through animal by-products obtained from porcine animals kept in restricted zones II and III and animal by-products obtained from wild porcine animals from restricted zones I, II and III. It is therefore appropriate to lay down in this Regulation special disease control measures related to those animal by-products and movements of consignments of such animal by-products from restricted zones I, II and III.

(4)

Commission Implementing Regulation (EU) 2021/605 (6) was adopted within the framework of Regulation (EU) 2016/429, and it lays down special disease control measures regarding African swine fever to be applied for a limited period of time by the Member States listed in Annex I thereto, in restricted zones I, II and III, as listed in that Annex. The rules laid down in that Implementing Regulation were aligned, as much as possible with international standards such as those set out in Chapter 15.1 ‘Infection with African swine fever virus’ of the Terrestrial Animal Health Code of the World Organization for Animal Health (7) (WOAH Code).

(5)

This Regulation should also provide for a regionalisation approach, which should apply in addition to the disease control measures laid down in Delegated Regulation (EU) 2020/687 and it should list the restricted zones of Member States affected by outbreaks of African swine fever or at risk due to their proximity to such outbreaks (the Member States concerned). Those restricted zones should be differentiated by the epidemiological situation of African swine fever and the level of risk and classed as restricted zones I, II and III, with restricted zone III listing the areas with the highest level of risk for the spread of that disease and the most dynamic disease situation in kept porcine animals. In addition, those restricted zones should be listed in Annex I to this Regulation taking account of the information provided by the competent authorities of the Member States concerned as regards the disease situation, scientifically based principles and criteria for geographically defining regionalisation due to African swine fever, and the Union’s guidelines on African swine fever agreed with the Member States within the Standing Committee on Plants, Animals, Food and Feed and publicly available on the Commission’s website (8), as well as the level of risk for the spread of African swine fever and the overall epidemiological situation of African swine fever in the Member State concerned and in the neighbouring Member States or third countries, where relevant. Furthermore, any subsequent amendments of the boundaries of the restricted zones I, II and III in Annex I to this Regulation should be based on similar considerations as were used for listing and should take account of international standards, such as WOAH Code, indicating the absence of the disease for a period of at least twelve months in the zone or a country. In certain situations, taking account of the justification provided by the competent authority of the Member State concerned and scientifically based principles and criteria for geographically defining regionalisation due to African swine fever and guidelines available at Union level, that period should be reduced to three months.

(6)

Since the date of adoption of Implementing Regulation (EU) 2021/605, the epidemiological situation in the Union has evolved and new experience and knowledge on the epidemiology of African swine fever has been gathered in the Member States. Therefore, it is appropriate to review and adapt the current special disease control measures for African swine fever laid down in that Implementing Regulation taking account of those developments and in order to prevent the spread of that disease in the Union. Accordingly, the special disease control measures laid down in this Regulation should take account of the experience gained in the application of Implementing Regulation (EU) 2021/605.

(7)

Implementing Regulation (EU) 2021/605 lays down special disease control measures for African swine fever that, in general, apply to movements from restricted zones I, II and III of consignments of porcine animals kept in those restricted zones and products thereof. However, the movements of consignments of porcine animals kept in restricted zones I, II and III and products thereof within the restricted zones also present risks in relation to the spread of that disease and contribute to the lengthy persistence of the disease in those restricted zones. Therefore, taking account of the epidemiological situation of African swine fever in the Member States concerned, it is appropriate to lay down specific prohibitions and risk mitigating measures for the movements of consignments of kept porcine animals within those restricted zones and expand the scope of the current special disease control measures laid down in Union rules accordingly.

(8)

In the past, to ensure an effective and quick reaction to emerging risks, such as confirmation of an outbreak of African swine fever in a previously disease-free Member State or zone, individual Commission Implementing Decisions were adopted, where relevant, to rapidly identify at Union level the restricted zone for outbreaks of African swine fever in kept porcine animals, which comprised protection and surveillance zones, or the infected zone in the case of an outbreak of that disease in wild porcine animals, as provided for in Delegated Regulation (EU) 2020/687. In order to ensure clarity and transparency of Union rules, it is appropriate that following confirmation of an outbreak of African swine fever in kept or wild porcine animals in a previously disease-free Member State or zone, the concerned areas are identified at Union level as protection and surveillance zones or, in the case of wild porcine animals, as an infected zone and listed in Annex II to this Regulation with the duration of that regionalisation. In order to ensure a territorial continuity of restricted zones for kept or wild porcine animals, in specific situations and taking account of the risk assessment, where relevant, it should also be possible to list previously disease-free zones after the confirmation of an outbreak of African swine fever as restricted zones II or III in Annex I to this Regulation instead of listing these zones in Annex II hereto.

(9)

Taking account of the evolving epidemiological situation of African swine fever in wild porcine animals in the Union, the special disease control measures, including relevant derogations, applicable to restricted zones II laid down in this Regulation should also apply in the infected zones listed in Annex II hereto, in addition to the measures laid down in Articles 63 to 66 of Delegated Regulation (EU) 2020/687. However, due to the immediate risk of the further spread of that disease detected in wild porcine animals, movements of consignments of kept porcine animals and products thereof to other Member States and to third countries should not be authorised from the infected zones listed in Annex II hereto.

(10)

Article 16(2) of Implementing Regulation (EU) 2021/605 provides for a derogation from the requirement for stock-proof fencing for certain establishments of kept porcine animals for a period of three months after the confirmation of a first outbreak of African swine fever in the Member State subject to certain conditions. Taking account of the specific situation in the Member States when such stock-proof fences cannot be built within a short period of time for technical and administrative reasons, it is appropriate to provide for an extended period of six months in this Regulation, in order to ensure the proper implementation of the special disease control rules for African swine fever in a previously disease-free Member State or zone.

(11)

Articles 166 and 167 of Regulation (EU) 2016/429 require that consignments of products of animal origin from terrestrial animals produced or processed in establishments, food businesses or zones subject to emergency measures or movement restrictions, must be accompanied by the relevant animal health certificates. Article 19 of Implementing Regulation (EU) 2021/605 lays down operators obligations with regard to animal health certificates for movements of consignments of fresh meat and meat products, including casings, obtained from porcine animals from restricted zones I, II and III and lists the consignments for which the health or identification mark may substitute the animal health certificate for movements of certain consignments from those restricted zones. In order to ensure the implementation of the special disease control rules for African swine fever, it is necessary to lay down adapted provisions in this Regulation related to the list of establishments for which the competent authority of the Member State concerned may substitute the animal health certificate with the health or identification mark for movements of certain consignments.

(12)

Article 10 of Implementing Regulation (EU) 2021/605 lays down specific prohibitions in relation to movements of consignments of germinal products obtained from porcine animals kept in restricted zones II and III outside those restricted zones. In addition, Article 31 of that Implementing Regulation lays down for specific conditions for derogations authorising movements of consignments of germinal products obtained from porcine animals kept in a restricted zone II from that restricted zone in the territory of the same Member State. Taking account of the high level of biosecurity measures in place in approved germinal product establishments, specific conditions for derogations authorising movements of consignments of germinal products obtained from porcine animals kept in a restricted zone III from that restricted zone in the territory of the same Member State should be laid down in this Regulation. Amongst other conditions, such movements should only be authorised by the competent authority of the Member State concerned if donor males and donor females were kept at approved germinal product establishments since birth or for a period of at least three months prior to the collection of the germinal products as provided for in the WOAH Code. Based on the WOAH Code, it is appropriate to lay down also the obligation to test, at least annually, for African swine fever all kept porcine animals in approved germinal product establishments that are authorised for movements of consignments of germinal products from restricted zone III.

(13)

Article 14 of Implementing Regulation (EU) 2021/605 lays down the general conditions for derogations from specific prohibitions in relation to movements of consignments of porcine animals kept in restricted zones I, II and III outside those zones. Article 14(1), point (a), of that Regulation refers to a general condition laid down in Article 28(2), point (a), of Delegated Regulation (EU) 2020/687, that requires all authorised movements in the protection zone to be performed exclusively via designated routes. Taking account of other risk-mitigating measures in place for the movements of consignments of porcine animals kept in restricted zones I, II and III provided for in this Regulation and in order to avoid unnecessary restrictions, a reference to the general conditions to grant derogations from prohibitions in the protection zone of Article 28 of Delegated Regulation (EU) 2020/687 should be replaced by a reference to the general conditions for granting derogations from prohibitions relevant to the surveillance zone of Article 43 of that Delegated Regulation, that requires, among other, that all authorised movements are performed prioritising major highways or mainline railways.

(14)

Article 35 of Implementing Regulation (EU) 2021/605 lays down specific conditions for authorising movements of consignments of category 3 materials obtained from porcine animals kept in restricted zones II outside those restricted zones within the same Member State for the purpose of the processing of animal by-products by pressure sterilisation or certain alternative methods, manufacturing of pet food and for the transformation of animal by-products and derived products into biogas or compost as provided for in Regulation (EC) No 1069/2009. Taking account of the effectiveness of the relevant processing methods to mitigate risks of African swine fever, it is appropriate also to lay down in this Regulation specific conditions for authorising movements of consignments of Category 3 materials obtained from porcine animals kept in a restricted zone III outside that restricted zone within the same Member State for the purpose of the processing of animal by-products by pressure sterilisation or certain alternative methods, the manufacturing of pet food and for the transformation of animal by-products and derived products into biogas or compost.

(15)

Article 44 of Implementing Regulation (EU) 2021/605 provides for special health or, where relevant, identification marks for certain products of animal origin. These products should be marked with a special health mark or, where relevant, an identification mark that is not oval and cannot be confused with the health mark or identification mark provided for in Article 5(1) of Regulation (EC) No 853/2004 of the European Parliament and of the Council (9). Taking account of the rules laid down in that Regulation and for the effective application of the special disease control rules for African swine fever concerning movements within or from restricted zones of certain consignments of fresh meat and meat products obtained from kept or wild porcine animals and in the interests of clarity, a concrete shape of special marks should be laid down in this Regulation, which provides a comprehensive set of technical measures for the control of that disease. In addition, a transitional period for a harmonised shape of such special marks should be introduced to take account of the specific situation of competent authorities and food business operators in Member States affected by African swine fever that need to make the necessary arrangements to ensure compliance with this Regulation.

(16)

The experience gained in the fight against African swine fever in the Union shows that certain risk mitigation and reinforced biosecurity measures are necessary in order to prevent the spread of that disease in establishments of kept porcine animals. These measures should be laid down in the Annex III to this Regulation and should cover establishments subject to derogations laid down for movements of consignments of porcine animals kept in the restricted zones I, II and III.

(17)

Since the date of adoption of Implementing Regulation (EU) 2021/605, the epidemiological situation in the Union has further evolved with respect to African swine fever in several Member States, in particular in populations of wild porcine animals, which have played a major role in the transmission and persistence of the virus in the Union. Despite the disease control measures taken by the Member States in accordance with Union rules, wild porcine animals continue to be a major source of transmission and persistence of the presence of that disease in the Union. The outbreaks of that disease in porcine animals present a risk also to the disease-free Member States due to the movements of wild porcine animals or as part of human mediated spread through infected materials. Taking into account the current epidemiological situation in the Union as regards African swine fever, well-co-ordinated and consistent control measures should be taken by the Member States. The application of special disease control measures before the introduction of African swine fever have been also recommended through the scientific advice provided by the European Food Safety Authority (EFSA) in its Scientific Opinion of 12 June 2018 on African swine fever in wild boar (10) and in the Scientific Report of 18 December 2019 on Epidemiological analyses of African swine fever in the European Union (11).

(18)

Accordingly, in order to avoid the spread of African swine fever by wild porcine animals, well-coordinated measures by the Member States are crucial to circumvent a duplication of efforts. This Regulation should therefore provide for an obligation on the Member States to establish National action plans for wild porcine animals in order to avoid the spread of African swine fever in the Union, by ensuring a coordinated and consistent approach across the Member States (national action plans). Minimum requirements for the national action plans should take account of scientific advice provided by EFSA, in particular on preventive measures to reduce and stabilise wild boar density before the introduction of that disease, passive surveillance, biosecurity measures during the hunting of wild porcine animals, in order to provide for a harmonised approach in the Member States. These national action plans and the annual results of their implementation should be presented to the Commission and to the other Member States.

(19)

The wild porcine animals management measures taken in the context of the national action plans should be compatible, where relevant, with Union environmental rules, including the nature protection requirements, laid down in Directive 2009/147/EC of the European Parliament and of the Council (12) and Council Directive 92/43/EEC (13).

(20)

In order to take account of the recent developments in the epidemiological situation of African swine fever in the Union, new experience and knowledge gathered in the Union, and in order to combat the risks associated with the spread of that disease in a proactive manner, revised and extended special disease control rules should be laid down in this Regulation. Accordingly, Implementing Regulation (EU) 2021/605 should be repealed and replaced by this Regulation.

(21)

Implementing Regulation (EU) 2021/605 applies until 20 April 2028. Taking account of the current epidemiological situation of African swine fever in the Union, it is necessary to maintain the special disease control measures laid down in this Regulation until that date.

(22)

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