Non-opposition to a notified concentration

(Case COMP/M.5113 — Abe Investment/Getty)

(Text with EEA relevance)

(2008/C 138/01)

On 6 May 2008, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

Non-opposition to a notified concentration

(Case COMP/M.4900 — Solvay/Sibur/JV)

(Text with EEA relevance)

(2008/C 138/02)

On 16 May 2008, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

Euro exchange rates (1)

4 June 2008

(2008/C 138/03)

1 euro=

(1)  

Source: reference exchange rate published by the ECB.

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 411th meeting on 3 July 2006 concerning a draft decision relating to Case COMP/C-3/37.792 — Microsoft

(2008/C 138/04)

(1)  Consisting of the versions of the documentation of December 2004, August 2005 and November 2005, and the letter of 15 December 2005 with Annexes.

(2)  The Commission summarises its position in recitals 232 and 233 of the draft decision.

Final report of the Hearing Officer in Case COMP/C-3/37.792 — Microsoft

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2008/C 138/05)

The draft decision in this case gives rise to the following observations:

The Article 24(1) procedure based on the final decision of 24 March 2004

On 24 March 2004, the Commission adopted a decision in a proceeding pursuant to Article 82 of the EC Treaty (Case COMP/C-3/37.792) addressed to Microsoft Corporation (‘Microsoft’). In this decision (‘the Final Decision’), the Commission found, inter alia, that Microsoft had infringed Article 82 of the EC Treaty (‘Article 82’) and Article 54 of the EEA Agreement by refusing, from October 1998 until the date of the Decision, to disclose certain specified ‘Interoperability Information’ to vendors of work group server operating system products, so that they could develop and distribute such products (1).

On 10 November 2005, the Commission adopted a Decision pursuant to Article 24(1) of Regulation (EC) No 1/2003 (the ‘Article 24(1) Decision’). Article 1 of this Decision orders that ‘Microsoft Corporation shall ensure that, by 15 December 2005, it fully complies with the obligations set out in Article 5(a) and (c) of the Final Decision. In the absence of such compliance, a periodic penalty payment of EUR 2 million per day, calculated from that date, shall be imposed on Microsoft Corporation’.

The Article 24(1) Decision identified two instances where Microsoft failed to comply with its obligations under Article 5(a) and (c) of the Final Decision. This proceeding solely concerns the allegation that Microsoft has failed to provide complete and accurate technical documentation embodying the Interoperability Information it was ordered to provide under the Final Decision.

Measures taken by Microsoft to provide complete and accurate technical documentation and the Commission's reactions

On 14 December 2004, Microsoft sent a technical documentation (specifications) that Microsoft had prepared for the relevant protocols (‘Technical Documentation’) to the Commission. OTR, the Commission's external technical experts, reviewed this Technical Documentation and provided a negative report (‘the first OTR report’) as regards its completeness, accuracy and fitness for purpose. On 15 June 2005, the Commission services sent the first OTR report to Microsoft for comments. Microsoft provided its response to the first OTR report on 8 July 2005.

By decision of 28 July 2005, the Commission established a monitoring mechanism by providing for the appointment, functions and obligations of a Monitoring Trustee. The Trustee's function is to assist the Commission in overseeing compliance with the Final Decision (2). On 5 October 2005, the Commission chose one person from a shortlist of four experts submitted by Microsoft, as Monitoring Trustee.

In response to the concerns raised in the first OTR report on the information in the Technical Documentation, Microsoft provided an updated version of the Technical Documentation to the Commission services on 8 August 2005.

This version of the Technical Documentation was also reviewed by OTR. OTR provided an updated report on the completeness and accuracy of the Technical Documentation which maintained OTR's negative view.

In order to fulfil its obligations under Article 5(c) of the Final Decision, Microsoft has made an Evaluation Agreement available to interested undertakings. Four companies (Novell, IBM, Oracle and Sun) have to date entered into three-day evaluation agreements with Microsoft. The Commission services have requested these companies to submit both a detailed description of how the evaluation took place on-site, and an assessment of whether the Technical Documentation examined in the course of the evaluation provides complete and accurate specifications for the protocols covered by the Decision, as well as their views on the value of the technology disclosed through the Technical Documentation.

In response to two Commission's requests (one in September/October 2005 and another one in March 2006), Novell, IBM, Oracle and Sun provided critical comments as to the adequacy and sufficiency of the Technical Documentation provided.

On 11 and 23 November 2005, Microsoft submitted a revised Technical Documentation (‘the November 2005 Technical Documentation’). On 30 November 2005, the Trustee submitted a Preliminary Report on Microsoft's revised Technical Documentation, which was sent to Microsoft. On 15 December 2005, the Trustee submitted its Final Report on the November 2005 Technical Documentation.

On 15 December 2005, Microsoft submitted a response to the Trustee's Preliminary Report and announced that a further revised Technical Documentation (‘the 15 December 2005 Technical Documentation’) was available in Redmond. This third version of the Technical Documentation, which was not received by the Commission before 26 December 2005, was commented on in a report drawn up by the Trustee on 3 March 2006.

The Statement of Objections

On 21 December 2005, the Commission submitted a Statement of Objections to Microsoft, expressing its preliminary views that the revised Technical Documentation submitted on 11 and 23 November 2005 was still insufficient to comply with Microsoft's obligations under Article 5(a) and (c) of the Final Decision. The Statement of Objections also referred to the third version of the technical documentation, by making the point that that the changes in the 15 December 2005 version of the Technical Documentation were essentially limited to the formatting. The Commission concluded that the 15 December 2005 version of the Technical Documentation did not remedy the shortcomings identified in the previous versions. The Trustee's Reports were annexed to the Statement of Objections.

Microsoft was asked to respond by 31 January 2006. Upon Microsoft's request, I extended this deadline until 15 February 2006, in particular in order to allow Microsoft's outside experts to elaborate reasoned opinions on the criticism voiced by the Commission. This extended deadline was complied with.

At the oral hearing and in their written response, Microsoft claimed that the Statement of Objections was fundamentally flawed because it did not take sufficient account of the Technical Documentation announced by Microsoft on 15 December 2005. As Microsoft had informed the Commission that the Technical Documentation would be ready for inspection as of 15 December, the Commission should have waited until a copy of the Technical Documentation arrived in Brussels rather than issuing the Statement of Objections before.

I do not share Microsoft's view that the Statement of Objections was flawed. As acknowledged by the case law, a Statement of Objections is a document stating preliminary findings. Until a decision has been adopted, the Commission may alter or supplement its position expressed therein provided that it affords the undertakings concerned the opportunity of making known their views in that respect (3). In the letter of facts issued on 10 March 2006 (see below), Microsoft was duly informed of the Commission's assessment as to the third version of the Technical Documentation submitted by Microsoft and was given sufficient time to state their views. Accordingly, in my view, Microsoft cannot claim a breach of their rights with regard to the issuance of the Statement of Objections.

Microsoft's further submissions and the ‘letter of facts’

On 25 January 2006, Microsoft offered to licensees of the Technical Documentation access to Windows source code by means of a source code reference licence.

On 30 January 2006, Microsoft handed over a fourth version of the Technical Documentation to the relevant Commission services.

On 10 March 2006, the Commission submitted a document (‘letter of facts’) to Microsoft explaining that the 15 December 2005 version of the Technical Documentation was considered to be insufficient to comply with the Final Decision. Furthermore, Microsoft was informed that the source code disclosures were considered to be irrelevant for Microsoft's obligations under Article 5(a) and (c) of the Final Decision. A report drawn up by the Trustee addressing the third version of the Technical Documentation and a report drawn up by TAEUS addressing the fourth version of the Technical Documentation, albeit only by examining the specifications of one of the protocols, were annexed.

Microsoft was given the opportunity to comment on the letter of facts within two weeks.

By letter of 14 March 2006 Microsoft took the view that the letter of facts set forth new allegations and therefore constituted a supplementary statement of objections, the issuance of which would require a deadline to reply of four weeks. In particular, Microsoft considered that the assertion contained in the letter of facts according to which the third version of the Technical Documentation did not comply with Articles 5(a) and (c) of the Commission decision of 24 March 2004, constituted a new allegation.

In my response of 17 March 2006, I stated that I did not share Microsoft's view that the Commission's letter of facts set out objections not contained in the Commission's Statement of Objections. In my view, addressing in more detail the 15 December 2005 version of the Technical Documentation did not amount to raising new objections against Microsoft but rather maintained the existing objections in the light of new facts. Accordingly, I did not accede to Microsoft's requests. However, in particular with a view to allowing Microsoft to focus on the preparation of the oral hearing in the ensuing days, both with regard to the Statement of Objections and with regard to the letter of facts, I did not require that Microsoft provide a written submission to the letter of facts prior to the oral hearing, and granted Microsoft until two weeks after the oral hearing, i.e., until 14 April 2006, to submit written comments on the letter of facts. This deadline was complied with.

Microsoft's further submissions and the Commission's second letter of facts

On 11 April 2006, Microsoft submitted a further revised version of the Technical Documentation.

Following a meeting between the Trustee and representatives from Microsoft and the Commission on 7 and 8 April 2006 and a letter by the Member of the Commission responsible for Competition to Microsoft's Chief Executive Officer of 13 April 2006, Microsoft provided the Trustee on 22 April 2006 with a work plan for the delivery of complete and accurate Technical Documentation. This work plan foresees that a revised Technical Documentation for the bulk of the protocols described therein will be delivered by 30 June 2006 and that the Technical Documentation for the remaining protocols described therein will be delivered by 18 July 2006.

On 15 May 2006, the Trustee submitted two reports: one providing comments on the reports from Microsoft's technical experts, that were enclosed with Microsoft's letter of 14 April 2006 and a second report providing an assessment of the completeness and accuracy of the Technical Documentation submitted by Microsoft on 11 April 2006.

On 15 May 2006, TAEUS submitted a report providing an assessment of the completeness and accuracy of this documentation and providing comments on the reports of Microsoft's expert. This report was submitted to Microsoft on 19 May 2006 together with the 15 May 2006 Trustee report and the Trustee's Report on the Technical Documentation submitted by Microsoft on 11 April 2006. With the same letter the Commission informed Microsoft of its assessment that the objections raised on 21 December 2005 as regards the completeness and accuracy of the Technical Documentation had not been addressed and thus remained valid. The Commission invited Microsoft to submit comments within two weeks from receipt thereof.

On 23 May 2006, Microsoft requested that the deadline to respond to the Commission's 19 May 2006 letter be extended by two weeks.

On 30 May 2006, I agreed to extend the deadline for Microsoft to respond to the Commission's 19 May 2006 letter until 9 June 2006.

On 9 June 2006, Microsoft responded to the 19 May 2006 letter. This response included two further reports of Microsoft's technical experts.

Access to file

Subsequent to issuing the Statement of Objections, Microsoft was granted access to file on 23 December 2005. By letters of 24 December 2005 and 2 January 2006 and in a meeting at the Hearing Officer's office on 6 January 2006, Microsoft requested further access to the Commission's file. This request for access to file also covered the correspondence between the Commission on the one hand and OTR and the Monitoring Trustee on the other hand.

By letter of 13 January 2006, I did not accede to Microsoft's request for access to the correspondence with OTR and the Monitoring Trustee. Following detailed correspondence with Microsoft on the issue, I considered this correspondence to be internal. However, I checked carefully whether access to the items of the correspondence could have been necessary for the adequate understanding of the methodology or the proper technical verification of the Trustee's report or otherwise indispensable for Microsoft's defence. As this could not be excluded for a ‘Sufficiency Test’ undertaken by the Monitoring Trustee, I decided to grant access to this document. Furthermore, in order to allow Microsoft to verify the Commission services' selection of accessible documents, I ensured that Microsoft was provided with a descriptive list of all documents yet undisclosed which were potentially related to the Statement of Objections.

By letter of 17 January 2006, Microsoft requested access to all documents relating to the Commission's contacts with the four companies that had replied to the Commission's market test (Novell, IBM, Oracle and Sun) as well as any other third party that the Commission has dealt with in this context. Although these third parties' submissions had been classified confidential in the first place, all information providers waived their right to confidentiality with regard to their documents on the list provided to Microsoft. Accordingly, the documents were made accessible. As some of the waivers were explicitly made on the condition that Microsoft would not disseminate the information to persons other than Microsoft's counsel or staff directly connected with the present, I informed Microsoft accordingly. Subsequently, some information providers complained that Microsoft had misused the information for purposes other than Microsoft's defence in the current proceedings, in particular by presenting the information on Microsoft's webpage. Microsoft was given the opportunity to comment on these complaints. Finally, I also granted access to one piece of correspondence that OTR and the Monitoring Trustee had had with third parties.

By letter of 2 March 2006 to me, Microsoft requested access to any material that information providers, notably Sun, IBM, and Oracle had submitted directly to the Trustee and OTR. Although these documents were not in the Commission's file at the time of Microsoft's request, the relevant Commission services agreed to request such correspondence from the Trustee (OTR having informed the Commission that no written exchanges with third parties existed). Apart from a few documents which were considered confidential and unrelated, Microsoft was provided with this information.

By letter of 22 March 2006, Microsoft requested access to answers that the Commission services had received from third companies in response to Article 18 requests. I ensured that access was provided as soon as the third parties' confidentiality requests had been addressed. In the same letter, Microsoft requested access to the correspondence between the Commission and its new expert, TAEUS. As I considered this correspondence to be internal, I did not accede to Microsoft's request. However, I verified that the pieces of correspondence were not indispensable for verifying the technical correctness of the reports drawn up by TAEUS or to understand the methodology used. Microsoft also assumed that there was further correspondence between the Commission services and interested third parties. I informed Microsoft that this was not the case.

By letter of 23 May 2006, Microsoft requested access to further correspondence between the Commission on the one hand and the Trustee and TAEUS on the other and requested access to an updated list of communications between the Commission and third parties and copies of the non-confidential versions of such communications.

In my response of 2 June 2006, I reaffirmed my position that Microsoft was not entitled to access the internal correspondence between the Commission on the one hand and TAEUS or the Trustee on the other hand. However, I verified carefully that the correspondence did not contain items which are indispensable for Microsoft's defence. Furthermore, I ensured that Microsoft was sent an updated list of communications between the Commission and third parties and with a full copy of the communications that were not confidential but related to the objections raised against Microsoft in these proceedings.

The Oral Hearing

In their submission of 15 February 2006, Microsoft requested a public oral hearing. In my letter of 23 February 2006, I pointed out that, according to the clear wording of Article 14(6) Regulation (EC) No 773/2004, oral hearings could not be public. As this provision was not only in Microsoft's interest, but also in the interest of other participants in the hearing and in the interest of the procedure (inter alia to maintain the serenity of the debate), I took the view that Microsoft's request could not allow me to depart from a long-standing rule which had ensured that oral hearings have taken place in a constructive and productive atmosphere over the past 40 years.

As I rejected Microsoft's request for a postponement, the oral hearing took place on 30 and 31 March 2006.

In addition to Microsoft, nine interested third parties attended the Hearing and gave presentations.

No constraints were placed on Microsoft as to the scope of their submissions at the oral hearing. In addition they were permitted virtually all their requested speaking time. Given the number of third parties involved, some were required to reduce their initial speaking time requests. An overall balance was maintained between Microsoft and third parties. Microsoft was permitted to respond to third party comments at the final stage of the hearing.

The oral hearing was essentially held on the basis of the information provided by Microsoft on 26 December 2005 (third version of the Technical Documentation). However, I did not intervene when Microsoft's fourth version of the Technical Documentation submitted on 30 January 2006 was addressed as this submission had been touched upon in the TAEUS report attached to the Commission's letter of facts of 10 March 2006.

The draft final decision

In my view, the draft final decision contains no elements of law that had not been set out in the Statement of Objections and no elements of fact that had not been set out either in the Statement of Objections or in the letters of facts.

In the light of the above, I consider that the right to be heard of Microsoft and of the third parties has been respected in the present case.

(1)  Article 5 of the operative part of the Final Decision reads:

‘As regards the abuse referred to in Article 2(a):

(2)  Cf. Article 7 of the Decision and Article 3 of the Trustee Decision.

(3)  Judgement of the Court of First Instance of 30 September 2003, in Joined Cases T-191/98 and T-212/98 to T-214/98, Atlantic Container Line, paragraph 115.

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 412th meeting on 10 July 2006 concerning a draft decision relating to Case COMP/C-3/37.792 — Microsoft

(2008/C 138/06)

Summary of Commission Decision

of 12 July 2006

fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corporation by Decision C(2005) 4420 final and amending that Decision as regards the amount of the periodic penalty payment

(Case COMP/C-3/37.792 — Microsoft)

(notified under document number C(2006) 3143)

(Only the English text is authentic)

(2008/C 138/07)

On 12 July 2006, the Commission adopted a decision fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corporation by Decision C(2005) 4420 final and amending that Decision as regards the amount of the periodic penalty payment. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003  (1) , the Commission herewith publishes the names of the parties and the main content of the decision, including the penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business interests. A non-confidential version of the full text of the decision as well as of Decision C(2005) 4420 of 10 November 2005 can be found in the authentic language of the case and in the Commission's working languages at DG COMP's website at:

http://europa.eu.int/comm/competition/index_en.html

1.   SUMMARY OF THE CASE

1.1.   Background of the case

1.2.   Appointment of the Monitoring Trustee

1.3.   Procedural steps

1.4.   The company and product concerned

1.5.   The nature of the non-compliance

2.   DEFINITIVE AMOUNT OF THE PERIODIC PENALTY PAYMENT

2.1.   Relevant period of non-compliance

2.2.   Definitive amount of the periodic penalty payment for the relevant period

2.3.   Conclusion

3.   INCREASE OF THE PERIODIC PENALTY PAYMENTS

(1)  OJ L 1, 4.1.2003, p. 1. Regulation as last amended by Regulation (EC) No 1419/2006 (OJ L 269, 28.9.2006, p. 1).

(2)  The term ‘Interoperability Information’ is defined in Article 1(1) of the Decision. It means ‘the complete and accurate specifications for all the Protocols implemented in Windows Work Group Server Operating Systems and that are used by Windows Work Group Servers to deliver file and print services and group and user administration services, including the Windows Domain Controller services, Active Directory services and Group Policy services, to Windows Work Group Networks’. Article 1(2) of the Decision defines a ‘Protocol’ as ‘a set of rules of interconnection and interaction between various instances of Windows Work Group Server Operating Systems and Windows Client PC Operating Systems running on different computers in a Windows Work Group Network’.

(3)  Commission Decision of 28 July 2005 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/C-3/37.792 — Microsoft — C(2005) 2988 final).

(4)  See recitals 1068-1074 of the Decision.

(5)  See in this regard also the Judgment in Joined Cases 46/87 and 227/88, Hoechst [1989] ECR 2859, at paragraph 64, where the Court refers to the ‘obligation imposed upon all persons subject to Community law to acknowledge that measures adopted by the institutions are fully effective so long as they have not been declared invalid by the Court and to recognize their enforceability unless the Court has decided to suspend the operation of the said measures […]’.

(6)  See recitals 590 to 692 of the Decision.

Information communicated by Member States regarding State aid granted under Commission Regulation (EC) No 1628/2006 on the application of Articles 87 and 88 of the EC Treaty to national regional investment aid

(Text with EEA relevance)

(2008/C 138/08)

List of ports where landing or transhipping is allowed of frozen fish caught by third-country fishing vessels in the North-East Atlantic Fisheries Convention Area

(2008/C 138/09)

The publication of the list (1) is based on Article 36 of Council Regulation (EC) No 40/2008 of 16 January 2008 fixing for 2008 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (2).

(1)  The list with more detailed information is also available on the websites of the Commission and NEAFC.

(2)  OJ L 19, 23.1.2008, p. 1.

(3)  Not an EU Border Inspection Post (BIP).

Communication from the EFTA Surveillance Authority under to Article 4(1)(a) of the Act referred to in point 64(a) of Annex XIII to the EEA Agreement (Council Regulation (EEC) No 2408/92 on access for Community air carriers to intra-Community air routes)

Imposition of new public service obligations in respect of scheduled air services on the route Værøy (heliport)-Bodø v.v.

(2008/C 138/10)

1.   INTRODUCTION

Pursuant to Article 4(1)(a) of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, Norway has decided to impose public service obligations as of 1 August 2008 in respect of scheduled air services on the following routes:

2.   THE PUBLIC SERVICE OBLIGATIONS INCLUDE THE FOLLOWING SPECIFICATIONS FOR THE ROUTE AREA VÆRØY-BODØ V.V.

2.1.   Minimum frequencies, seating capacity, routing and timetables

The following requirements apply to frequencies, seating capacity, routing and timetables

Frequencies

Seating capacity

Routing

The required services must be non-stop.

Timetables

The following apply to the required flights on Monday-Friday (local times):

If a procedure is established for instrument approach (IFR) to Værøy, the requirement of at least 5 hours and 30 minutes between first arrival in Bodø and last departure applies throughout the year.

2.2.   Aircraft category

Helicopters registered for minimum 15 passengers shall be used for the required flights.

2.3.   Technical and operative conditions

Carriers' attention is especially drawn to technical and operative conditions applying at the airports. For further information, please contact:

2.4.   Fares

Maximum basic fully flexible one-way fare (the maximum fare) in the operating year beginning 1 August 2008, must not exceed the following rate:

For each subsequent operating year the maximum fares shall be adjusted on 1 August within the limit of the consumer price index for the 12-month period ending 15 June the same year, as made public by Statistics Norway (http://www.ssb.no).

The carrier is responsible for making tickets available at a price not exceeding the maximum fare through all sales channels belonging to the carrier.

Maximum fare applies also to tickets offered by other companies operating within the concern of the carrier. The carrier is responsible for the compliance of the requirements by such companies.

The maximum fare shall include all taxes and fees to the authorities, and all other extra charges the carrier adds on when issuing the tickets.

The carrier shall be party to the domestic interline agreements in force at any time, and shall offer all discounts available under such agreements.

3.   ADDITIONAL CONDITIONS FOLLOWING A TENDER PROCEDURE

Following a tender procedure, which limits access to the routes to one carrier, these conditions apply in addition:

Fares

Transfer conditions

4.   REPLACEMENT AND LIFTING OF PREVIOUS PUBLIC SERVICE OBLIGATIONS

These public service obligations replace those previous published in OJ C 268, and the EEA Supplement No S 54 of 4 November 2004, regarding air services on the route Værøy-Bodø v.v.

5.   INFORMATION

Further information can be obtained from:

Invitation to submit comments pursuant to Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement on State aid with regard to the property transactions engaged in by the municipality of Time concerning property numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 in Time

(2008/C 138/11)

By means of Decision No 717/07/COL of 19 December 2007, reproduced in the authentic language on the pages following this summary, the EFTA Surveillance Authority initiated proceedings pursuant to Article 1(2) in Part I of Protocol 3 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (Surveillance and Court Agreement). The Norwegian authorities have been informed by means of a copy of the decision.

The EFTA Surveillance Authority hereby gives the EFTA States, EU Member States and interested parties notice to submit their comments on the measure in question within one month from the publication of this notice to:

The comments will be communicated to the Norwegian authorities. Confidential treatment of the identity of the interested party submitting the comments may be requested in writing, stating the reasons for the request.

SUMMARY

PROCEDURE

On 3 March 2007, the Authority received a complaint from a community association concerning the sales of property numbers 1/152, 1/301, 1/630, 4/165 in Time municipality by the municipal authorities to two different private entities, as well as the sale of title number 2/70 (Bryne stadium which also includes title No 2/32) by Bryne fotballklubb (a football club), previously given to the club by the municipality, to a private investor.

By letter dated 9 May 2007, a private investor sent a complaint to the Authority concerning the sale by Time municipality of one of the abovementioned properties, i.e. number 4/165.

By letter dated 19 June 2007, Time pensjonistparti (a political party) complained about an exclusive right allegedly granted to Forum Jæren AS with respect to the development of 200 underground parking spaces at the property in the centre of the Bryne to be used for the construction of a new upper secondary school (title numbers 1/125, 2/277, 2/278 and 2/284).

Following correspondence with the Norwegian authorities, the Authority has decided to open a formal investigation procedure with respect to the property transactions engaged in by the municipality of Time concerning property numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 in Time. By contrast, it has found that, at present, the transactions relating to title numbers 1/125, 2/277, 2/278, 2/284 in Time do not involve the granting of State aid.

ASSESSMENT

The sale of title numbers 1/152, 1/301 and 1/630 to Grunnsteinen AS

By a sales agreement dated 25 August 2007, Time municipality sold title numbers 1/152 (1 312 square metres), 1/301 (741 square metres) and 1/630 (1 167 square metres) in the centre of the municipal centre of Time municipality, Bryne, to the private property developer Grunnsteinen AS. At the time of the transaction, it appears that title number 1/152 was used as a municipal car park with 44 parking spaces.

Grunnsteinen did not pay any money for the properties, but undertook to build underground parking spaces on title number 1/152, of which 65 were to be transferred to Time municipality. According to the municipal authorities, the obligation to build the parking spaces replaces ordinary payment for the property; i.e. the existing 44 parking spaces above ground would be compensated for by 44 new underground spaces, and the value of the additional 21 spaces would correspond to the value of the two additional properties transferred. Norway has presented calculations according to which the value of the 21 additional parking spaces was NOK 2 625 000, whereas the value of the two additional properties was assessed at NOK 2 516 400. These calculations were based on a value assessment of title number 1/630, showing a price per square metre of NOK 600, and calculations by the construction firm Skanska arriving at a cost price of NOK 150 000 per parking space in an underground car park (excluding VAT and costs of buying/renting the land).

If public land is sold below market value, State resources within the meaning of Article 61(1) EEA must be deemed to have been involved and a selective advantage to have been conferred on Grunnsteinen. The Authority takes the preliminary view that this was the case, for the following reasons:

Firstly, the buyer did not pay any money for the properties. Thus, prima facie, the transaction would seem to involve aid, in the absence of convincing evidence to the contrary.

In that regard, the procedures laid down in the Authority's guidelines on the Sale of Land and Buildings by public authorities do not seem to have been complied with, as no bidding round was organised and only one of the properties transferred was assessed. In the Authority's view, this value assessment also appears to be too superficial to meet the requirements of the guidelines.

The Norwegian authorities also claim that the transaction constitutes an exchange of real property whereby the municipality gives three properties, including one in use as a car park, to the property developer, and receives a higher number of underground parking spaces in return. This reasoning would seem to presuppose that the value assessments presented to the Authority are held to be reliable. However, as set out above, the assessment of title number 1/630 seems to have several shortcomings. Similarly, the cost estimate for the future underground parking spaces seems to be based exclusively on general experience, not taking the particular characteristics of the property and the project in question into account. Thus, the transaction does not seem to have taken place on market terms.

If this were to be confirmed, Grunnsteinen's position would also be strengthened compared with that of its competitors. Moreover, the land might have been of interest for buyers established in other EEA States. The Authority's preliminary view is therefore that the transaction is capable of distorting competition and affecting intra-EEA trade.

State aid within the meaning of Article 61(1) EEA therefore seems to be present.

The sale of title number 4/165 to Bryne Industripark AS

On 31 August 2005, Time municipality and the private property developer Bryne Industripark AS signed a sales agreement concerning title No 4/165 at Håland in Time. The title comprises 56 365 square metres of industrial land, and the sales price was fixed at NOK 4,7 million (or approximately NOK 83 per square metre).

Neither a public bidding round nor a value assessment was organised prior to the sale. The price seems to have been calculated on the basis of the price at which Time municipality bought the property in 1999, to which capital costs, regulatory work and administrative costs were added. However, in October 2006 the municipality decided that industrial land, for the future, should be sold at market price, as the method applied so far would seem to lead to land being sold off too cheaply.

Against that background, the Authority takes the preliminary view that the land was sold below market value, and that State resources within the meaning of Article 61(1) EEA must be deemed to have been involved and a selective advantage to have been conferred on Bryne Industripark. If it were to be confirmed, Bryne Industripark's position would also be strengthened compared with that of its competitors. Moreover, the land might have been of interest for buyers established in other EEA States. The Authority's preliminary view is, therefore, that the transaction is capable of distorting competition and affecting intra-EEA trade.

State aid within the meaning of Article 61(1) EEA therefore seems to be present.

The sale of title numbers 2/70 and 2/32 to Bryne fotballklubb

By agreement dated 8 August 2003, Time municipality transferred the title to Bryne stadium, title numbers 2/32 and 2/70, an area of approximately 53 000 square metres, to Bryne fotballklubb (Bryne FK), a local football club currently playing in the 1st division (i.e. below the Premier League).

As the club did not pay any money for the land, the Authority takes the view that State resources within the meaning of Article 61(1) EEA must be deemed to have been involved and a selective advantage to have been conferred on Bryne FK. The Norwegian authorities have argued that Bryne FK is not an undertaking for the purposes of the EEA Agreement. However, from Bryne FK's homepage it appears that the club is, inter alia, active in selling and buying professional players, providing entertainment in the form of football matches and in offering advertising space in return for payment. Such activities would seem to qualify as the provision of services on a market and therefore to be economic in nature. The Authority therefore takes the preliminary view that Bryne FK constitutes an undertaking for the purposes of Article 61(1) EEA.

The transaction strengthens Bryne FK's position compared with that of its competitors. Moreover, the land might have been of interest for buyers established in other EEA States. The Authority's preliminary view is, therefore, that the transaction is capable of distorting competition and affecting intra-EEA trade.

State aid within the meaning of Article 61(1) EEA therefore seems to be present.

COMPATIBILITY

The information available to the Authority does not seem to indicate that any aid was granted to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment, to promote a project of common European interest or to facilitate the development of certain economic activities. Moreover, any aid granted to the sports club would not seem to promote cultural development. Against that background, Article 61(3)(a)-(c) EEA appears to be inapplicable.

PROCEDURAL REQUIREMENTS AND RECOVERY OF UNLAWFUL AID

Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement constitutes a standstill obligation. Article 14 in Part II of that Protocol provides that, in the event of a negative decision, all unlawful aid may be recovered from the beneficiary.

CONCLUSION

In light of the foregoing considerations, the Authority decided to open the formal investigation procedure in accordance with Article 1(2) of Part I of Protocol 3 to the Surveillance and Court Agreement with regard to the property transactions engaged in by the municipality of Time concerning property numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 in Time.

(1)  Hereinafter referred to as the EEA Agreement.

(2)  Hereinafter referred to as the Surveillance and Court Agreement.

(3)  Procedural and Substantive Rules in the Field of State Aid — Guidelines on the application and interpretation of Articles 61 and 62 of the EEA Agreement and Article 1 of Protocol 3 to the Surveillance and Court Agreement, adopted and issued by the EFTA Surveillance Authority on 19 January 1994, published in OJ L 231, 3.9.1994, EEA Supplement No 32, 3 September 1994, last amended by the Authority's Decision No 154/07/COL, hereinafter referred to as the State Aid Guidelines.

(4)  The property numbers referred to in the complaint are 1/125, 2/25, 2/274, 2/277, 2/278 and 2/288. Attempts have been made to check this with the complainant, but a clear answer could not be obtained (e-mails from the case handler of 19 October 2007 and Reply from Time Pensjonistparti of 22 October 2007, Event Nos 447785, 447999 and 448000). Based on the description of the properties in the complaint, the Authority, nevertheless, takes the view that the property referred to must be the property on which a new upper secondary school is to be constructed, i.e. title numbers 1/125, 2/277, 2/278 and 2/284.

(5)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 1).

(6)  Norway's reply to the Authority's first request for information (Event No 427879), Question 1(e).

(7)  Norway's reply to the Authority's first request for information (Event No 427879), reply to question 1(e).

(8)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 2). In Norway's reply, it is claimed that the value assessment concerned title numbers 1/301 and 1/630. However, this is not reflected in the actual assessment, neither does the number of square metres stated therein indicate that both properties have been taken into account.

(9)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 5).

(10)  This appears to be based on a value of NOK 600 per square metre plus the value of a building on title No 1/301. The Authority has not been presented with a valuation of the building.

(11)  This is based on the Municipality's original cost estimate of NOK 125 000, set out in the background papers for the deliberations in the municipal council (Event No 413558, pp. 16-17). The estimate by Skanska appears to have been obtained at a later stage.

(12)  Event No 413558, p. 19 et seq.

(13)  Event No 413558, pp. 16-17.

(14)  See Event No 413558 (original complaint), repeated in Aksjonsgruppa's comments to Norway's reply, Event No 477440.

(15)  Norway's reply to the Authority's first request for information (Event No 427879, Annexes 13-17).

(16)  See Article from the local newspaper Jærbladet of 28 March 2007, referring to this price.

(17)  Event No 413558, p. 29 and Norway's reply to the Authority's first request for information (Event No 427879, Annex 29).

(18)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 21).

(19)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 22).

(20)  The ground lease agreements provided by Norway, Annexes 18 and 19 to Norway's reply to the Authority's first request for information (Event No 427879).

(21)  See Annex 24 to Norway's reply to the Authority's first request for information (Event No 427879).

(22)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 26).

(23)  Norway's reply to the Authority's first request for information (Event No 427879).

(24)  See the Act relating to Education of 17 July 1998, No 61, Section 13-3.

(25)  Agreement between Time Municipality and Rogaland County Municipality relating to the construction of a new upper secondary school, Event No 439974.

(26)  Norway's reply to the Authority's second request for information (Event Nos 453220 and 453452).

(27)  Case T-274/01, Valmont Nederland BV v Commission, [2004] ECR II-3145, paragraphs 44-45.

(28)  The Authority has previously held that these standards fulfil the requirements of the Guidelines, ref. Decision No 170/05/COL on the sale of the University Library Building and Part of Adjacent Property in Oslo.

(29)  See Case T-366/00, Scott SA v Commission, judgment of 29 March 2007 (not yet reported), paragraph 106.

(30)  See Case 730/79, Philip Morris Holland BV v Commission, [1980] ECR p. 2671, paragraphs 11-12 and Joined Cases E-5/04, E-6/04 and E-7/04, FESIL, Finnfjord, PIL and Others, and the Kingdom of Norway v the Authority, paragraph 94.

(31)  See Article 2(2) of Commission Regulation (EC) No 69/2001, incorporated into the EEA Agreement by Joint Committee Decision No 88/2002 (OJ L 266, 3.10.2002, p. 56 and EEA Supplement No 49, 3 October 2002, p. 42), e.i.f. 1 February 2003.

(32)  Case T-366/00, Scott (cited above), paragraph 106.

(33)  Decision No KS-075/06, forwarded by the complainant (Annex 3 to Event No 437440).

(34)  Land sale agreements attached as Annexes 13-17 to Norway's reply to the Authority's first request for information, (Event No 427879).

(35)  Case T-366/00, Scott (cited above), paragraph 116.

(36)  It may also be noted that it follows from the sales agreements that it was considered to be highly likely that the areas were of archaeological interest and that the ground would, therefore, have to be explored before any development could take place, see Norway's reply to the Authority's first request for information (Event No 427879, Annexes 13, 14 and 15. This does not seem to be the case with respect to the title No 4/165, see Norway's reply to the Authority's first request for information (Event No 427879, Annex 8).

(37)  See Norway's reply to the Authority's first request for information (Event No 427879, Annexes 18 and 19).

(38)  Case C-41/90, Höfner and Elser [1991] ECR I-1979, paragraph 21.

(39)  Case 218/00, Cisal [2002] ECR I-691, paragraph 23.

(40)  Case Case C-519/04 P, Meca-Medina and Majcen vs Commission, [2006] ECR I-6991, paragraphs 22, 23 and 30.

(41)  For example, the news archive of the club features headlines like ‘Striker on trial’ (18 March 2004), ‘Frenchman for trial’ (30 March 2004), ‘Serbian trial player at Bryne’ (2 August 2007) and ‘Icelandic U21 player ready for Bryne’ (31 August 2007):

http://www.brynefk.no/Brynefk/index.nsf/DESIGNARKIV?openform

(42)  For example, in a news item of 13 April 2007, the club states that ‘For the first time Bryne FK has received more than 12 million in mere sponsorship money. The capacity [for advertisements] at Bryne stadium is exhausted and in order to exceed the 12 million threshold the club has invested in advertising rolls. The VIP stand has also been nearly sold out’.

See: http://www.brynefk.no/brynefk/index.nsf/DESIGNUNIK/SFUS-76RJ37?OpenDocument

(43)  See paragraph 17 of the Commission's opening Decision in Case C-49/03 (NN 51/03), Sale of land to AZ and AZ Vastgoed BV (OJ C 266, 5.11.2003, p. 8).

(44)  Unlawful aid or existing aid, under, respectively, Section III and V of Part II of Protocol 3 to the Surveillance and Court Agreement.

(45)  Section II of Protocol 3 to the Surveillance and Court Agreement.

Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and Thailand and a partial interim review of the anti-dumping measures applicable to imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and those consigned from Taiwan, whether declared as originating in Taiwan or not

(2008/C 138/12)

Following the publication of a notice of impending expiry (1) of the anti-dumping measures in force on imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and Thailand, (‘countries concerned’), the Commission has received a request for reviews pursuant to Article 11(2) and (3) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (‘the basic Regulation’) (2).

1.   Request for review

The request was lodged on 5 March 2008 by the Defence Committee of the Steel Butt-Welding Fittings Industry of the European Union (‘the applicant’) on behalf of producers representing a major proportion, in this case more than 25 % of the total Community production of certain tube or pipe fittings, of iron or steel.

2.   Product

The product under review is tube or pipe fittings (other than cast fittings, flanges and threaded fittings) of iron or steel (not including stainless steel), with a greatest external diameter not exceeding 609,6 mm, of a kind used for butt-welding or other purposes, originating in the People's Republic of China and Thailand (‘the product concerned’), currently classifiable within CN codes ex 7307 93 11, ex 7307 93 19, ex 7307 99 30 and ex 7307 99 90. These CN codes are given only for information.

3.   Existing measures

The measures currently in force are definitive anti-dumping duties imposed by Council Regulation (EC) No 964/2003 (3) on imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and Thailand, and those consigned from Taiwan, whether declared as originating in Taiwan or not as last amended by Council Regulation (EC) No 1496/2004 (4).

4.   Grounds for the reviews

4.1.   Grounds for the expiry review

The request is based on the grounds that the expiry of measures would be likely to result in continuation or recurrence of dumping and injury to the Community industry.

In view of the provisions of Article 2(7) of the basic Regulation, normal value was established for the People's Republic of China on the basis of the price in an appropriate market economy country, which is mentioned in point 5.1(d). The likelihood of continuation of dumping is based on a comparison of normal value, established as set out in the preceding sentence, with the export prices of the product concerned when sold for export to the Community.

On this basis, the dumping margin calculated is significant.

Furthermore, the applicant points out that during the period of imposition of measures, the exporters/producers of the product concerned from the People's Republic of China tried to undermine the existing measures by circumvention practices which were counteracted by Council Regulations (EC) No 763/2000 (5), (EC) No 2052/2004 (6), (EC) No 2053/2004 (6) and (EC) No 655/2006 (7).

The allegation of likelihood of continuation of dumping with respect to Thailand is based on a comparison of a constructed normal value, established on the basis of cost of production, with the export prices of the product concerned when sold for export to the Community.

The applicant has provided evidence that imports of the product concerned from the People's Republic of China and Thailand have continued to enter in significant quantities, and that such quantities would be likely to remain at their current levels, if not increase inter alia due to the measures in force on imports of the product originating in the countries concerned in traditional markets other than the EU (i.e. the USA) and the existence of unused capacity in the countries concerned.

The applicant allege that the current improved situation with regard to injury is mainly due to the existence of measures and that any continuation or recurrence of substantial imports at dumped prices from the countries concerned would likely lead to a recurrence of injury of the Community industry should measures be allowed to lapse.

4.2.   Grounds for the interim review

The applicant has provided information that, with regard to imports of the product concerned from the People's Republic of China, the measure is no longer sufficient to counteract the injurious dumping, in particular as far as the extension of the measure to imports consigned from Taiwan is concerned. The applicant has provided prima facie evidence that the exemption of imports produced by Chup Hsin Enterprise Co. Ltd, Kaohsiung (Taiwan) and Niang Hong Pipe Fittings Co. Ltd, Kaohsiung (Taiwan) from the extended measure is no longer justified as these companies appear to be engaged in circumvention practices such as transshipment of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China via Taiwan.

5.   Procedure

Having determined, after consulting the Advisory Committee, that sufficient evidence exists to justify the initiation of an expiry review and a partial interim review, limited to the exemption of certain tube or pipe fittings, of iron or steel produced by Chup Hsin Enterprise Co. Ltd, Kaohsiung (Taiwan) and Niang Hong Pipe Fittings Co. Ltd, Kaohsiung (Taiwan) from the extension of the anti-dumping measures imposed on imports originating in the People's Republic of China to imports consigned from Taiwan, the Commission hereby initiates reviews in accordance with Article 11(2) and (3) of the basic Regulation.

5.1.   Procedure for the expiry and interim reviews

The investigation will determine whether the expiry of the measures would be likely, or unlikely, to lead to a continuation or recurrence of dumping and injury. The interim review will determine whether, with regard to imports of the product concerned consigned from Taiwan, the exemption of certain tube or pipe fittings, of iron or steel produced by Chup Hsin Enterprise Co. Ltd, Kaohsiung (Taiwan) and Niang Hong Pipe Fittings Co. Ltd, Kaohsiung (Taiwan) from the extension of the anti-dumping measures imposed on imports originating in the People's Republic of China to imports consigned from Taiwan is still justified to counteract the injurious dumping.

(a)   Sampling

In view of the apparent number of parties involved in this proceeding, the Commission may decide to apply sampling, in accordance with Article 17 of the basic Regulation.

(i)   Sampling for exporters/producers in the People's Republic of China

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all exporters/producers, or representatives acting on their behalf, are hereby requested to make themselves known by contacting the Commission and providing the following information on their company or companies within the time limit set in point 6(b)(i) and in the formats indicated in point 7:

By providing the above information, the company agrees to its possible inclusion in the sample. If the company is chosen to be part of the sample, this will imply replying to a questionnaire and accepting an on-the-spot investigation of its response. If the company indicates that it does not agree to its possible inclusion or inclusion in the sample, it will be deemed to not have co-operated in the investigation. The consequences of non-cooperation are set out in point 8 below.

In order to obtain the information it deems necessary for the selection of the sample of exporters/producers, the Commission will, in addition, contact the authorities of the exporting countries, and any known associations of exporters/producers.

(ii)   Sampling for importers

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all importers of the product concerned into the Community, or representatives acting on their behalf, are hereby requested to make themselves known to the Commission and to provide the following information on their company or companies within the time limit set in point 6(b)(i) and in the formats indicated in point 7:

By providing the above information, the company agrees to its possible inclusion in the sample. If the company is chosen to be part of the sample, this will imply replying to a questionnaire and accepting an on-the-spot investigation of its response. If the company indicates that it does not agree to its possible inclusion or inclusion in the sample, it will be deemed to not have co-operated in the investigation. The consequences of non-cooperation are set out in point 8 below.

In order to obtain the information it deems necessary for the selection of the sample of importers, the Commission will, in addition, contact any known associations of importers.

(iii)   Sampling for Community producers

In view of the large number of Community producers supporting the request, the Commission intends to investigate injury to the Community industry by applying sampling. In order to enable the Commission to select a sample, all Community producers are hereby requested to provide the following information on their company or companies within the time limit set in point 6(b)(i) and in the formats indicated in point 7:

By providing the above information, the company agrees to its possible inclusion in the sample. If the company is chosen to be part of the sample, this implies replying to a questionnaire and accepting an on-the-spot investigation of its response. If the company indicates that it does not agree to its possible inclusion or inclusion in the sample, it will be deemed to not have co-operated in the investigation. The consequences of non-cooperation are set out in point 8 below.

(iv)   Final selection of the samples

All interested parties wishing to submit any relevant information regarding the selection of the samples must do so within the time limit set in point 6(b)(ii).

The Commission intends to make the final selection of the samples after having consulted the parties concerned that have expressed their willingness to be included in the samples.

Companies included in the samples must reply to a questionnaire within the time limit set in point 6(b)(iii) and must co-operate within the framework of the investigation.

If sufficient co-operation is not forthcoming, the Commission may base its findings, in accordance with Articles 17(4) and 18 of the basic Regulation, on the facts available. A finding based on facts available may be less advantageous to the party concerned, as explained in point 8.

(b)   Questionnaires

In order to obtain the information it deems necessary for its investigation, the Commission will send questionnaires to the sampled Community industry and to any association of producers in the Community, to the sampled exporters/producers in the People's Republic of China, to the exporters/producers in Thailand, to Chup Hsin Enterprise Co. Ltd, Kaohsiung (Taiwan) and Niang Hong Pipe Fittings Co. Ltd, Kaohsiung (Taiwan), to any association of exporters/producers, to the sampled importers, to any association of importers named in the request or which co-operated in the investigation leading to the measures subject to the present review, to any known user or user association and to the authorities of the exporting countries concerned.

(c)   Collection of information and holding of hearings

All interested parties are hereby invited to make their views known, submit information other than questionnaire replies and to provide supporting evidence. This information and supporting evidence must reach the Commission within the time limit set in point 6(a)(ii).

Furthermore, the Commission may hear interested parties, provided that they make a request showing that there are particular reasons why they should be heard. This request must be made within the time limit set in point 6(a)(iii).

(d)   Selection of the market economy country

The Commission envisages using the United States of America as an appropriate market economy third country for the purpose of establishing normal value with respect to the People's Republic of China. Interested parties are hereby invited to comment on the appropriateness of this country within the specific time limit set in point 6(c).

5.2.   Procedure for the assessment of Community interest

In accordance with Article 21 of the basic Regulation and in the event that the likelihood of a continuation or recurrence of dumping and injury is confirmed, a determination will be made as to whether maintaining the anti-dumping measures would not be against the Community interest. For this reason the Community industry, importers, their representative associations, representative users and representative consumer organisations, provided that they prove that there is an objective link between their activity and the product concerned, may, within the general time limits set in point 6(a)(ii), make themselves known and provide the Commission with information. The parties which have acted in conformity with the previous sentence may request a hearing, setting out the particular reasons why they should be heard, within the time limit set in point 6(a)(iii). It should be noted that any information submitted pursuant to Article 21 of the basic Regulation will only be taken into account if supported by factual evidence at the time of submission.

6.   Time limits

(a)   General time limits

(i)   For parties to request a questionnaire

All interested parties who did not co-operate in the investigation leading to the measures subject to the present review should request a questionnaire or other claim forms as soon as possible, but not later than 15 days after the publication of this notice in the Official Journal of the European Union.

(ii)   For parties to make themselves known, to submit questionnaire replies and any other information

All interested parties, if their representations are to be taken into account during the investigation, must make themselves known by contacting the Commission, present their views and submit questionnaire replies or any other information within 40 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. Attention is drawn to the fact that the exercise of most procedural rights set out in the basic Regulation depends on the party's making itself known within the aforementioned period.

Companies selected in a sample must submit questionnaire replies within the time limit specified in point 6(b)(iii).

(iii)   Hearings

All interested parties may also apply to be heard by the Commission within the same 40-day time limit.

(b)   Specific time limit in respect of sampling

(c)   Specific time limit for the selection of the market economy country

Parties to the investigation may wish to comment on the appropriateness of the United States of America which, as mentioned in point 5.1(d), is envisaged as a market-economy country for the purpose of establishing normal value in respect of the People's Republic of China. These comments must reach the Commission within 10 days of the date of publication of this notice in the Official Journal of the European Union.

7.   Written submissions, questionnaire replies and correspondence

All submissions and requests made by interested parties must be made in writing (not in electronic format, unless otherwise specified) and must indicate the name, address, e-mail address, telephone and fax numbers of the interested party. All written submissions, including the information requested in this notice, questionnaire replies and correspondence provided by interested parties on a confidential basis shall be labelled as ‘Limited’ (10) and, in accordance with Article 19(2) of the basic Regulation, shall be accompanied by a non-confidential version, which will be labelled ‘For inspection by interested parties’.

Commission address for correspondence:

8.   Non-co-operation

In cases in which any interested party refuses access to or does not provide the necessary information within the time limits, or significantly impedes the investigation, findings, affirmative or negative, may be made in accordance with Article 18 of the basic Regulation, on the basis of the facts available.

Where it is found that any interested party has supplied false or misleading information, the information shall be disregarded and use may be made, in accordance with Article 18 of the basic Regulation, of the facts available. If an interested party does not cooperate or cooperates only partially, and use of facts available is made, the result may be less favourable to that party than if it had cooperated.

9.   Schedule of the investigation

The investigation will be concluded, according to Article 11(5) of the basic Regulation within 15 months of the date of the publication of this notice in the Official Journal of the European Union.

10.   Possibility to request a review under Article 11(3) of the basic Regulation

As this expiry review is initiated in accordance with the provisions of Article 11(2) of the basic Regulation, the findings thereof will not lead to the level of the existing measures being amended but will lead to those measures being repealed or maintained in accordance with Article 11(6) of the basic Regulation. However, the interim review which is also initiated by this notice may lead to the termination of the exemption from duties for the two companies mentioned in point 4.2.

If any party to the proceeding considers that a review of the level of the measures is warranted so as to allow for the possibility to amend (i.e. increase or decrease) the level of the measures, that party may request a review in accordance with Article 11(3) of the basic Regulation.

Parties wishing to request such a review, which would be carried out independently of the expiry review mentioned in this notice, may contact the Commission at the address given above.

11.   Processing of personal data

It is noted that any personal data collected in this investigation will be treated in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (11).

12.   Hearing Officer

It is also noted that if interested parties consider that they are encountering difficulties in the exercise of their rights of defence, they may request the intervention of the Hearing Officer of DG Trade. He acts as an interface between the interested parties and the Commission services, offering, where necessary, mediation on procedural matters affecting the protection of their interests in this proceeding, in particular with regard to issues concerning access to the file, confidentiality, extension of time limits and the treatment of written and/or oral submission of views. For further information and contact details, interested parties may consult the Hearing Officer's web pages on the website of DG Trade (http://ec.europa.eu/trade).

(1)  OJ C 238, 10.10.2007, p. 20.

(2)  OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation (EC) No 2117/2005 (OJ L 340, 23.12.2005, p. 17).

(3)  OJ L 139, 6.6.2003, p. 1.

(4)  OJ L 275, 25.8.2004, p. 1.

(5)  OJ L 94, 14.4.2000, p. 1. Regulation as last amended by Regulation (EC) No 2314/2000 (OJ L 267, 20.10.2000, p. 15).

(6)  OJ L 355, 1.12.2004, p. 4.

(7)  OJ L 116, 29.4.2006, p. 1.

(8)  For guidance on the meaning of related companies, please refer to Article 143 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ L 253, 11.10.1993, p. 1).

(9)  For guidance on the meaning of related companies, please refer to Article 143 of Regulation (EEC) No 2454/93.

(10)  This means that the document is for internal use only. It is protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). It is a confidential document pursuant to Article 19 of the basic Regulation and Article 6 of the WTO Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping Agreement).

(11)  OJ L 8, 12.1.2001, p. 1.

Prior notification of a concentration

(Case COMP/M.5114 — Pernod Ricard/V&S)

(Text with EEA relevance)

(2008/C 138/13)

(1)  OJ L 24, 29.1.2004, p. 1.

Prior notification of a concentration

(Case COMP/M.5179 — Eramet/Tinfos)

(Text with EEA relevance)

(2008/C 138/14)

(1)  OJ L 24, 29.1.2004, p. 1.

Prior notification of a concentration

(Case COMP/M.5163 — DPWL/ZIM/CONTARSA)

Candidate case for simplified procedure

(Text with EEA relevance)

(2008/C 138/15)

(1)  OJ L 24, 29.1.2004, p. 1.

(2)  OJ C 56, 5.3.2005, p. 32.

Prior notification of a concentration

(Case COMP/M.5020 — Lesaffre/GBI UK)

(Text with EEA relevance)

(2008/C 138/16)

(1)  OJ L 24, 29.1.2004, p. 1.

Prior notification of a concentration

(Case COMP/M.4985 — BHP Billiton/Rio Tinto)

(Text with EEA relevance)

(2008/C 138/17)

(1)  OJ L 24, 29.1.2004, p. 1.