21.12.2012   

EN

Official Journal of the European Union

L 352/1

(1)

In August 2010, the Commission, by Notice of Initiation (NOI) published on 13 August 2010 (2), initiated a proceeding with regard to imports of certain fatty alcohols and their blends (‘FOH’) originating in India, Indonesia and Malaysia (‘the countries concerned’).

(2)

In May 2011, by Regulation (EU) No 446/2011 (3) (‘the provisional Regulation’), the Commission imposed a provisional anti-dumping duty on imports of FOH originating in India, Indonesia and Malaysia, and in November 2011 a definitive anti-dumping duty was imposed on the same imports by Council Implementing Regulation (EU) No 1138/2011 (4) (‘the definitive Regulation’).

(3)

On 21 January 2012, PT Ecogreen Oleochemicals, an Indonesian exporting producer of FOH, Ecogreen Oleochemicals (Singapore) Pte. Ltd and Ecogreen Oleochemicals GmbH (herein jointly referred to as ‘Ecogreen’) lodged an application (Case T-28/12) before the General Court for the annulment of the definitive Regulation as far as the anti-dumping duty with regard to Ecogreen was concerned. Ecogreen contested the adjustment made on the basis of Article 2(10)(i) of the basic Regulation to its export price for the purpose of comparing that export price with the company’s normal value.

(4)

On 16 February 2012, the Court of Justice rendered its judgment in joined Cases C-191/09 P and C-200/09 P Council of the European Union and European Commission v Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT) and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT). The Court of Justice rejected the appeals and cross-appeals of the General Court’s judgment in Case T-249/06 Interpipe Nikopolsky Seamless Tubes Plant Niko Tube ZAT (Interpipe Niko Tube ZAT) and Interpipe Nizhnedneprovsky Tube Rolling Plant VAT (Interpipe NTRP VAT) v Council of the European Union. The General Court had annulled Article 1 of Council Regulation (EC) No 954/2006 (5) with regard to Interpipe NTRP VAT, inter alia, on the grounds of a manifest error of assessment in making the adjustment based on Article 2(10)(i), and on other grounds with regard to Interpipe Niko Tube ZAT.

(5)

Given that the factual circumstances for Ecogreen are similar to those of Interpipe NTRP VAT in respect of the adjustment made pursuant to Article 2(10)(i) of the basic Regulation, in particular the following factors in combination: volume of direct sales to third countries of less than 8 % (1-5 %) of all export sales; existence of common ownership/control of the trader and the exporting producer; the nature of functions of the trader and the exporting producer, it is considered appropriate to recalculate the dumping margin of Ecogreen without making an adjustment pursuant to Article 2(10)(i) and to amend the definitive Regulation accordingly.

(6)

On the basis of eliminating the adjustment pursuant to Article 2(10)(i), the dumping margin established for Ecogreen, expressed as a percentage of the CIF import price at the Union frontier, duty unpaid, is less than 2 % and is therefore considered de minimis in accordance with Article 9(3) of the basic Regulation. In the light of this, the investigation should be terminated in respect of Ecogreen without the imposition of measures.

(7)

The dumping margin for all companies in Indonesia, other than for the other exporting producer with an individual margin, which was based on that of the cooperating Indonesian exporting producer with the highest dumping margin, should be revised to take account of the recalculated dumping margin of Ecogreen.

(8)

The interested parties concerned were informed of the proposal to revise the rates of anti-dumping duty in two disclosures, one sent on 13 June 2012 and a second disclosure sent on 25 September 2012. All parties were granted a period within which they could make representations subsequent to each disclosure in accordance with the provisions of the basic Regulation.

(9)

Comments on the disclosure sent on 13 June 2012 were received from P.T. Musim Mas (PTMM), the second exporting producer in Indonesia, from one producer in the Union, and from one exporting producer in Malaysia. PTMM also asked for an opportunity to be heard by the Commission services and was granted such a hearing.

(10)

PTMM, for which an adjustment under Article 2(10)(i) had also been made, argued that the Court judgment in joined Cases C-191/09 P and C-200/09 P should result in a recalculation of its dumping margin, similar to that made for Ecogreen, without an adjustment being made pursuant to Article 2(10)(i), as once a single economic entity made up of the exporting producer and the trader is established, no adjustments under Article 2(10)(i) can be made. The company also claimed that the burden of proving that an adjustment should be made rests with the Institutions, and that they have not proved it in the case of PTMM. It further alleged that its circumstances were identical to those of Ecogreen, and any difference in treatment would therefore amount to discrimination.

(11)

As regards the comments made by PTMM, it should be noted that it does not follow from the Court judgment in joined Cases C-191/09 P and C-200/09 P that as soon as the existence of a single economic entity is established no adjustment under Article 2(10)(i) of the basic Regulation can be made. The adjustment under Article 2(10)(i) is considered to be justified in the case of PTMM as has been explained in the definitive regulation, in communication with the company and below.

(12)

There are a number of differences in the circumstances of the two Indonesian exporting producers, in particular the following in combination: the level of direct export sales made by the producer; the significance of the trader’s activities and functions concerning products sourced from non-related companies; the existence of a contract between the trader and producer, which provided that the trader was to receive a commission for the export sales. Given the difference in the circumstances of the two companies the claim of discrimination has to be rejected.

(13)

It is noted that PTMM also lodged an application (Case T-26/12) before the General Court for the annulment of the definitive Regulation as far as the anti-dumping duty with regard to PTMM was concerned.

(14)

One exporting producer in Malaysia argued that the recalculation of the margin for Ecogreen, without making an adjustment pursuant to Article 2(10)(i), was not supported by the judgment in joined Cases C-191/09 P and C-200/09 P or the facts therein. It pointed out that the General Court, in Case T-249/06, had found a manifest error of assessment in applying Article 2(10)(i) of the basic Regulation in so far as the Council made an adjustment on the export price charged by Sepco in the context of transactions concerning pipes manufactured by Interpipe NTRP VAT, but not those manufactured by Interpipe Niko Tube ZAT. Ecogreen’s factual circumstances thus could not simultaneously be similar to those of Interpipe NTRP VAT and of Interpipe Niko Tube ZAT due to a difference in the situation of those two companies.

(15)

This argument is accepted. Indeed, Ecogreen’s situation is similar to that of Interpipe NTRP VAT. This finding justifies the need for taking the appropriate steps to recalculate the dumping margin for Ecogreen without the Article 2(10)(i) adjustment.

(16)

The exporting producer in Malaysia further argued that the situation of Ecogreen as described in the definitive Regulation is not even similar to that of Interpipe NTRP VAT. Upon reassessing the precise factual circumstances of Ecogreen, it is however considered that these are sufficiently similar to those of Interpipe NTRP VAT as such control as found by the General Court for Interpipe NTRP VAT when assessing whether the company carrying out the sales activities is under the control of the exporting producer or whether there is common control has been found for Ecogreen and together with several other factors, as indicated in recital 4, leads to the conclusion that the adjustment under Article 2(10)(i) of the basic Regulation should not have been made.

(17)

The same exporting producer in Malaysia, as an alternative to its argument regarding the similarities between the situation of Ecogreen and the circumstances of Case T-249/06, argued that the disclosure sent on 13 June 2012 was insufficient and that additional disclosure should be made of the essential facts and considerations on the basis of which the recalculation for Ecogreen is justified. One producer in the Union also commented that both disclosures referred to in recital 8 were insufficient, and argued that it was deprived of its rights of defence.

(18)

In this regard, it is recalled that certain details relating to specific companies which are confidential in nature cannot be disclosed to third parties. However, the nature of the factual circumstances of Ecogreen which are similar to those of Interpipe NTRP VAT, as indicated at recital 5, was disclosed to interested parties on 13 June and 25 September 2012, who were granted a period within which they could make representations subsequent to each disclosure in accordance with the provisions of the basic Regulation.

(19)

In response to the second disclosure sent on 25 September 2012, the parties mainly reiterated their claims in their responses to the first disclosure of 13 June 2012.

(20)

PTMM has developed its comments based on its main claim that the existence of a Single Economic Entity (SEE) of PTMM and its trader excludes an adjustment under Article 2(10)(i) of the basic Regulation claiming that the Institutions shift the SEE doctrine laid down by the Courts to a functional approach where an analysis of the functions of the related trader would be required.

(21)

It is noted that this issue turns on a point of law that is a subject matter of a pending case.

(22)

Furthermore, PTMM claimed that the arguments in recital 12 above are not convincing and do not suffice to differentiate between the circumstances of Ecogreen and PTMM respectively.

(23)

In that regard it is sufficient to note that it is settled case-law that different treatment of companies that are not in an identical situation does not amount to discrimination (6). Against this background each individual case was assessed on its individual merits against the findings in the judgments of Case T-249/09 and joined Cases C-191/09 P and C-200/09 P.

(24)

First argument: Level of direct export sales made by the producer. PTMM submitted that it has no marketing and sales division and claimed that all the sales carried out directly by the producer in Indonesia (and not by the related trader) were only done so as to comply with legal requirements. The functions of marketing and sales were carried out by its trader in Singapore. For this reason, PTMM claimed that this argument does not justify the adjustment under Article 2(10)(i) of the basic Regulation nor the distinction drawn between PTMM on the one hand and Interpipe NTRP VAT on the other.

(25)

Article 2(10) of the basic Regulation stipulates that a fair comparison shall be made between the export price and the normal value at the same level of trade with due account taken of differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis, due allowance in the form of adjustments shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability.

(26)

On this basis, and as explained in recital 38 of the provisional Regulation, adjustments for, inter alia, differences in commissions between export sales prices and domestic sales prices during the original investigations were considered warranted due to the differences in the sales channels between export sales to the European Union and domestic sales.

(27)

The arguments put forward by PTMM do not contradict the first argument, namely that the level of direct export sales made by PTMM is higher than that of Interpipe NTRP VAT and that this fact distinguishes PTMM from Ecogreen. Indeed, given the level of direct export sales, it can only be concluded that PTMM’s export sales are performed not only from its related trader in Singapore, but also from Indonesia.

(28)

Second argument: Significance of the trader’s activities and functions concerning products sourced from non-related companies. PTMM claimed that, whereas it did not deny that its related trader was involved in a range of different palm oil-based products, PTMM claimed that this argument was flawed, since it was based on activities beyond the scope of original investigation.

(29)

In order to assess whether the functions of a trader are not those of an internal sales department but comparable to those of an agent working on a commission basis within the meaning of the judgement of the General Court in Case T-249/06, the trader’s activities have to be assessed against the economic reality. There are similarities as regards the functions of the trader with regard to the product concerned and the other products traded. This is confirmed by the fact that, as discussed below in recitals 30 and 31, the relationship between PTMM and its related trader, including the functions of the latter, for most if not all products — including the product concerned — is governed by one single contract without distinguishing among products. It should be noted that the trader’s overall activities were based to a significant extent on supplies originating from unrelated companies. The trader’s functions are therefore similar to those of an agent working on a commission basis.

(30)

Third argument: The existence of a contract between the trader and producer, which provided that the trader was to receive a commission for the export sales. PTMM claimed that this contract was a master agreement to regulate transfer prices between related parties to comply with applicable Indonesian/Singapore tax guidelines and internationally accepted guidelines on transfer pricing.

(31)

The fact that this agreement can also be used for calculating arm’s length prices in accordance with applicable tax guidelines does not contradict the finding that pursuant to the agreement the trader received a commission in the form of a fixed mark-up only for its international and marketing sales activities. Indeed, the very name and the modalities of the agreement justify the finding that the contract was intended to govern the relationship between PTMM and the trader and was not limited to the transfer pricing or tax issues. The contract thus represents circumstantial evidence that the trader’s functions are similar to those of an agent working on a commission basis.

(32)

In the light of the arguments presented above the Institutions have met the standard of proof required by the settled case-law (7): they based their findings on direct or at least circumstantial evidence. As regards PTMM, and for reasons explained above, the adjustment made to the export prices pursuant to Article 2(10)(i) of the basic Regulation is warranted and the present level of anti-dumping duty should therefore be kept.

(33)

On the basis of the above the duty rates applicable to Ecogreen and to all other companies in Indonesia (except P.T. Musim Mas) should be amended. The amended rates should apply retroactively from the date of the entry into force of Implementing Regulation (EU) No 1138/2011 including to any imports subject to provisional duties between 12 May and 11 November 2011. Consequently, the definitive anti-dumping duty paid or entered into the accounts pursuant to Article 1 of Implementing Regulation (EU) No 1138/2011 in its initial version and the provisional anti-dumping duties definitively collected pursuant to Article 2 of the same Regulation in its initial version in excess of the duty rate specified in Article 1(2) of Implementing Regulation (EU) No 1138/2011 as amended by this Regulation should be repaid or remitted. Repayment or remission should be requested from national customs authorities in accordance with applicable customs legislation,

21.12.2012   

EN

Official Journal of the European Union

L 352/6

(1)

Article 43(3) of the Treaty provides that the Council, on a proposal from the Commission, is to adopt measures on the fixing of prices.

(2)

Council Regulation (EC) No 104/2000 of 17 December 1999 on the common organisation of the markets in fishery and aquaculture products (1) requires that guide prices and Union producer prices for each fishing year be fixed in order to determine price levels for intervention on the market for certain fisheries products.

(3)

It is incumbent upon the Council to fix the guide prices for each of the products and groups of products listed in Annexes I and II to Regulation (EC) No 104/2000, and the Union producer prices for the products listed in Annex III to that Regulation.

(4)

On the basis of the data currently available on the prices for the products concerned and the criteria laid down in Article 18(2) of Regulation (EC) No 104/2000, the guide prices should be increased, maintained or reduced for the 2013 fishing year depending on the species.

(5)

It is appropriate to establish the Union producer price for one of the products listed in Annex III to Regulation (EC) No 104/2000 and to calculate the Union producer prices for the others by means of the conversion factors established by Commission Regulation (EC) No 802/2006 of 30 May 2006 fixing the conversion factors applicable to fish of the genera Thunnus and Euthynnus  (2).

(6)

On the basis of the criteria laid down in the first and second indents of Article 18(2) and in accordance with the procedure laid down in Article 26(1) of Regulation (EC) No 104/2000, the Union producer price for the 2013 fishing year should be fixed,

21.12.2012   

EN

Official Journal of the European Union

L 352/10

(1)

Council Regulation (EC) No 1342/2008 (1) establishes a long-term plan for cod stocks in the Kattegat; the North Sea, the Skagerrak and the eastern Channel; the west of Scotland; and the Irish Sea, and the fisheries exploiting those stocks (‘the Cod Plan’). The objective of the Cod Plan is to ensure the sustainable exploitation of those cod stocks on the basis of maximum sustainable yield. This objective is to be attained while maintaining a specific level of fishing mortality of cod on appropriate age groups.

(2)

Articles 7, 8 and 9 and Article 12 of the Cod Plan contain, for the purpose of attaining the objective of the Cod Plan, specific rules prescribing a detailed methodology for the annual fixing of, on the one hand, total allowable catches (TACs) and, on the other hand, fishing effort limitations.

(3)

The scientific evaluation of the performance of the Cod Plan carried out by the Scientific, Technical and Economic Committee for Fisheries (STECF) has shown a number of problems with the design and functioning of the Cod Plan. Without putting into question the objectives of the Cod Plan, the STECF concluded that those objectives are unlikely to be achieved within a time frame that would be in compliance with the conclusions of the World Summit on Sustainable Development held in Johannesburg in 2002 unless the flaws in the design of the Cod Plan, relating, inter alia, to the application of its Articles 9 and 12, are corrected.

(4)

Article 9 contains detailed rules for the fixing of the TACs in poor data conditions where the rules for the fixing of the TAC established in Articles 7 and 8 cannot be applied due to lack of sufficiently accurate and representative information. Although the application of the automatic yearly TAC reductions of 25 % had been intended to apply in exceptional circumstances only, from 2009 until 2012, it became the rule. Consequently, since the entry into force of the Cod Plan, the TACs for the areas concerned have been reduced significantly and further automatic cuts would lead to the effective closure of the cod fisheries in the areas concerned. The scientific evaluation carried out by the STECF suggests that, for the purpose of attaining the objectives of the Cod Plan, it would be more appropriate in some cases to allow more flexibility to reflect the scientific advice on a case by case basis. As part of that flexibility, it is, therefore, appropriate to allow suspension, under certain conditions, of the annual reduction in the TAC or an alternative TAC level to be set, without jeopardising the objectives of the Cod Plan.

(5)

Article 12 contains detailed rules for the fixing of the allowable fishing effort. Given that the same percentage adjustments apply, in accordance with Article 12(4), to allowable fishing effort in line with the automatic annual reductions in fishing mortality (under Articles 7 and 8) and with the automatic annual reductions in the TAC (under Article 9), allowable fishing effort has been reduced by 25 % per year from 2009 to 2012 in the areas to which Article 9 has applied and significantly reduced in the areas to which Article 8 has applied. Consequently, since the entry into force of the Cod Plan, allocations of the maximum allowable fishing effort have been significantly reduced for the main cod catching gears. According to scientific advice, it cannot be demonstrated that such automatic annual reductions in the allowable fishing effort have lead to the expected reductions in fishing mortality. In practice, the automatic annual effort reductions have also removed or reduced the incentives for fishermen to reduce fishing mortality by the other means foreseen in Article 13. The continued application of the automatic annual effort reductions would not lead to the achievement of the objectives of the Cod Plan, but would have a significant economic and social impact on the fleet segments that use the same gears, but that fish principally for species other than cod. It is, therefore, appropriate to enable a more flexible approach that would allow suspension of the automatic annual reduction in the fishing effort, without jeopardising the objectives of the Cod Plan.

(6)

In view of the above, it is essential that Articles 9 and 12 of the Cod Plan be amended urgently so as to enable the new rules to apply for the purpose of the fixing of fishing opportunities for 2013.

(7)

Article 43(2) TFEU provides that the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, are to establish the common organisation of fisheries markets provided for in Article 40(1) thereof and the other provisions necessary for the pursuit of the objectives of the common fisheries policy. Article 43(3) TFEU provides that the Council, on a proposal from the Commission, is to adopt measures on the fixing and allocation of fishing opportunities.

(8)

Amendments to Articles 9 and 12 establish detailed specific rules for the purpose of fixing fishing opportunities expressed by means of the TAC and of fishing effort limitations. They adapt the currently applicable rules for the fixing of fishing opportunities without amending the objective of the Cod Plan. They are, consequently, measures on the fixing and allocation of the TACs and fishing effort limitations and cannot be considered either as provisions establishing the common organisation of fisheries markets, or as other provisions necessary for the pursuit of the objectives of the common fisheries policy.

(9)

Regulation (EC) No 1342/2008 should, therefore, be amended accordingly,

(1)

Article 9 is replaced by the following:

‘Article 9

Special procedure for setting TACs

1.   Where there is insufficient information to set the TACs in accordance with Article 7, the TACs for cod stocks in the Kattegat, the west of Scotland and the Irish Sea shall be set at a level indicated by scientific advice. However, if the level indicated by scientific advice is more than 20 % greater than the TACs in the previous year, they shall be set at a level 20 % greater than the TACs in the previous year, or if the level indicated by scientific advice is more than 20 % less than the TACs in the previous year they shall be set at a level 20 % less than the TACs in the previous year.

2.   By way of derogation from paragraph 1, where scientific advice indicates that there should be no directed fisheries and that:

the Council may decide not to apply an annual adjustment to the TAC in the subsequent year or in subsequent years, on condition that the TAC set is for bycatch only.

3.   Where there is insufficient information to set the TACs in accordance with Article 8, the TACs for the cod stock in the North Sea, the Skagerrak and the eastern Channel shall be set by applying paragraphs 1 and 2 of this Article mutatis mutandis, unless consultations with Norway result in a different level of the TAC.

4.   When scientific advice indicates that the application of the rules set out in Article 8(1) to (4) is not appropriate to meet the objectives of the plan, the Council may, notwithstanding the above mentioned provisions, decide on an alternative TAC level.’.

(2)

Article 12 is hereby amended as follows:

21.12.2012   

EN

Official Journal of the European Union

L 352/13

(1)

On 1 August 2011, the Council adopted Regulation (EU) No 753/2011.

(2)

On 20 November 2012, the United Nations Security Council Committee, established pursuant to paragraph 30 of Security Council Resolution 1988 (2011), amended the list of individuals, groups, undertakings and entities subject to restrictive measures.

(3)

Annex I to Regulation (EU) No 753/2011 should therefore be amended accordingly,

21.12.2012   

EN

Official Journal of the European Union

L 352/15

(1)

In response to the deterioration of the human rights situation in Iran, on 12 April 2011, the Council by Regulation (EU) No 359/2011 (2) imposed certain restrictive measures directed against certain persons, entities and bodies, in accordance with Decision 2011/235/CFSP.

(2)

On 20 December 2012 the Council adopted Decision 2012/810/CFSP (3) amending Decision 2011/235/CFSP as regards the scope of the measures related to equipment which might be used for internal repression.

(3)

Those measures fall within the scope of the Treaty and, therefore, regulatory action at the level of the Union is necessary in order to implement them, in particular with a view to ensuring their uniform application by economic operators in all Member States.

(4)

Regulation (EU) No 359/2011 should therefore be amended accordingly.

(5)

This Regulation should enter into force immediately,

(1)

the existing paragraph is numbered paragraph 1;

(2)

the following paragraph is added:

‘2.   By way of derogation from paragraph 1, the competent authorities of the Member States, as listed in Annex II, may authorise, under such conditions as they deem appropriate, the sale, supply, transfer or export of equipment which might be used for internal repression as listed in Annex III provided that it is intended solely for the protective use of the personnel of the Union and its Member States in Iran, or the provision of technical assistance or brokering services or of financing or financial assistance referred to in paragraph 1(b) and (c) related to such equipment.’.

21.12.2012   

EN

Official Journal of the European Union

L 352/16

(1)

The Agreements in the form of an Exchange of Letters between the European Union and Brazil and between the European Union and Thailand, approved by Council Decision 2012/792/EU (2) provide for new quantities of processed poultry meat to be allocated to Brazil, Thailand and other third countries. It is therefore appropriate to amend Commission Regulation (EC) No 616/2007 (3) to take into account the new quantities.

(2)

Regulation (EC) No 616/2007 provides for a specific management method for the tariff quotas based on the origin of the products concerned. The new quotas should be managed in the same way.

(3)

Regulation (EC) No 616/2007 should therefore be amended accordingly.

(4)

The Agreements with Brazil and Thailand enter into force on 1 March 2013 while the quotas concerned are opened on an annual basis for the period from 1 July to 30 June. It is therefore appropriate to provide for derogations from certain provisions of Regulation (EC) No 616/2007 as to be amended by this Regulation. In particular, the annual quantity for the quota year 2012/2013 should be reduced on a pro rata basis. Furthermore, as it is not possible to lodge applications in advance for the new quotas to enter into force on 1 March 2013 a single quota period should apply from 1 March 2013 until 30 June 2013 and a derogation should be laid down to the normal application period provided in Article 5(1) of Regulation (EC) No 616/2007. The validity period of import licences should be amended accordingly.

(5)

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

(1)

In Article 1, paragraph 1 is replaced by the following:

‘1.   The tariff quotas in Annex I to this Regulation are hereby opened for imports of the products covered by the agreements between the Union and Brazil, and the Union and Thailand, as approved by Decision 2007/360/EC and Council Decision 2012/792/EU (4).

The tariff quotas are opened on an annual basis for the period from 1 July to 30 June.

(2)

Article 3 is replaced by the following:

‘Article 3

1.   With the exception of quotas in Groups Nos 3, 4B, 5B and 6B, the quantity established for the annual quota period shall be spread out over four subperiods, as follows:

2.   The annual quantity established for quotas in Groups Nos 3, 4B, 5B and 6B shall not be divided into subperiods.

3.   The annual quantities established for quotas in Groups Nos 5A and 5B shall be managed by attributing import rights as a first step and issuing import licences as a second.’;

(3)

Article 4 is amended as follows:

(4)

Article 5 is amended as follows:

(5)

Article 6 is amended as follows:

(6)

in Article 7, paragraph 1 is replaced by the following:

‘1.   By way of derogation from Article 22 of Commission Regulation (EC) No 376/2008 (5), the import licences shall be valid for 150 days from the first day of the quota period or subperiod for which they were issued.

For Groups Nos 5A and 5B licences shall be valid for 15 working days from the actual date of issuing, in accordance with Article 22(2) of Regulation (EC) No 376/2008. Import rights shall be valid from the first day of the quota period or subperiod for which the application has been lodged, and until 30 June of the same quota period.

(7)

Article 8 is replaced by the following:

‘Article 8

1.   Release for free circulation within the quotas referred to in Article 1 of this Regulation shall be subject to the presentation of a certificate of origin issued by the competent authorities of Brazil (for Groups Nos 1, 4A, 4B, and 7) or Thailand (for Groups Nos 2, 5A and 5B) in accordance with Articles 55 to 65 of Regulation (EEC) No 2454/93.

2.   Paragraph 1 shall not apply to Groups Nos 3, 6A, 6B and 8.’;

(8)

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

(a)

the quota period is opened from 1 March to 30 June 2013 and the annual quantity is reduced by 67 %;

(b)

the subperiods set out in Article 3(1) of Regulation (EC) No 616/2007 shall not apply;

(c)

applications for import licences and import rights as referred to in Article 5(1) of that Regulation may be submitted only in the first seven days of January 2013;

(d)

the import licences for all Groups except those for Groups Nos 5A and 5B shall be valid from 1 March 2013 until 30 June 2013.

21.12.2012   

EN

Official Journal of the European Union

L 352/20

(1)

To avoid inconsistencies, all data sent to trade repositories under Article 9 of Regulation (EU) No 648/2012 should follow the same rules, standards and formats for all trade repositories, all counterparties and all types of derivatives. A unique data set should therefore be used for describing a derivatives trade.

(2)

Since OTC derivatives are typically neither uniquely identifiable by existing codes which are widely used in financial markets, such as the International Securities Identification Numbers (ISIN), nor describable by using the ISO Classification of Financial Instruments (CFI) code, a new and universal method of identification has to be developed. If a unique product identifier is available and follows the principles of uniqueness, neutrality, reliability, open source, scalability, accessibility, has a reasonable cost basis, is offered under an appropriate governance framework and is adopted for use in the Union, it should be used. If a unique product identifier meeting these requirements is not available, an interim taxonomy should be used.

(3)

The underlying should be identified by using a single identifier, however there is currently no market wide standardised code to identify the underlying within a basket. Counterparties should therefore be required to indicate at least that the underlying is a basket and use ISINs for standardised indices where possible.

(4)

To ensure consistency, all parties to a derivatives contract should be identified by a unique code. A global legal entity identifier or an interim entity identifier, to be defined under a governance framework which is compatible with the FSB recommendations on data requirements and is adopted for use in the Union, should be used to identify all financial and non-financial counterparties, brokers, central counterparties, and beneficiaries once available, in particular to ensure consistency with the Committee on Payment and Settlement Systems (CPSS) and International Organisation of Securities Commissions (IOSCO) report on OTC Derivatives Data Reporting and Aggregation Requirements that describes legal entity identifiers as a tool for data aggregation. In the case of agency trades, the beneficiaries should be identified as the individual or entity on whose behalf the contract was concluded.

(5)

The approach used in third countries and also taken by trade repositories themselves as they start their businesses should be taken into account. Therefore, to ensure a cost-effective solution for counterparties and to mitigate operational risk for trade repositories, the reporting start date should include phase-in dates for different derivative classes, beginning with the most standardised classes and subsequently extending to the other classes. The derivative contracts which were entered into before, on or after the date of entry into force of Regulation (EU) No 648/2012, that are not outstanding on or after the reporting start date, are not of major relevance for regulatory purposes. They must however be reported under Article 9(1)(a) of Regulation (EU) No 648/2012. To ensure an efficient and proportionate reporting regime in those cases and taking into account the difficulties in reconstructing data of terminated contracts, a longer deadline should be provided for such reporting.

(6)

This Regulation is based on draft implementing technical standards submitted by the European Securities and Markets Authority (hereinafter ESMA) to the Commission.

(7)

In accordance with Article 15 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority) (3) ESMA has conducted open public consultations on such draft implementing technical standards, analysed the potential related costs and benefits and requested the opinion of the ESMA Securities and Markets Stakeholder Group established in accordance with Article 37 of that Regulation,

(a)

a beneficiary which is a legal person;

(b)

a broking entity;

(c)

a CCP;

(d)

a clearing member which is a legal person;

(e)

a counterparty which is a legal entity;

(f)

a submitting entity.

(a)

unique;

(b)

neutral;

(c)

reliable;

(d)

open source;

(e)

scalable;

(f)

accessible;

(g)

available at a reasonable cost basis;

(h)

subject to an appropriate governance framework.

(a)

unique;

(b)

neutral;

(c)

reliable

(d)

open source;

(e)

scalable;

(f)

accessible;

(g)

available at a reasonable cost basis;

(h)

subject to an appropriate governance framework.

(a)

the derivative class shall be identified as one of the following:

(b)

the derivative type shall be identified as one of the following:

(c)

in the case of derivatives not falling into a specific derivative class or derivative type, the report shall be made on the basis of the derivative class or derivative type that the counterparties agree the derivative contract most closely resembles.

(a)

by 1 July 2013, where a trade repository for that particular derivative class has been registered under Article 55 of Regulation (EU) No 648/2012 before 1 April 2013;

(b)

90 days after the registration of a trade repository for a particular derivative class under Article 55 of Regulation (EU) No 648/2012, where there is no trade repository registered for that particular derivative class before or on 1 April 2013,;

(c)

by 1 July 2015, where there is no trade repository registered for that particular derivative class under Article 55 of Regulation (EU) No 648/2012 by 1 July 2015. The reporting obligation shall commence on this date and contracts shall be reported to ESMA in accordance with Article 9(3) of that Regulation until a trade repository is registered for that particular derivative class.

(a)

by 1 January 2014, where a trade repository for that particular derivative class has been registered under Article 55 of Regulation (EU) No 648/2012 before 1 October 2013;

(b)

90 days after the registration of a trade repository for a particular derivative class under Article 55 of Regulation (EU) No 648/2012, where there is no trade repository registered for that particular derivative class before or on 1 October 2013;

(c)

by 1 July 2015, where there is no trade repository registered for that particular derivative class under Article 55 of Regulation (EU) No 648/2012 by 1 July 2015. The reporting obligation shall commence on this date and contracts shall be reported to ESMA in accordance with Article 9(3) of that Regulation until a trade repository is registered for that particular derivative class.

(a)

were entered into before 16 August 2012 and are still outstanding on 16 August 2012: or

(b)

were entered into on or after 16 August 2012,

21.12.2012   

EN

Official Journal of the European Union

L 352/30

(1)

Any information submitted to the European Securities and Markets Authority (ESMA) in an application for registration of a trade repository should be provided in a durable medium, which enables its storage for future use and reproduction. In order to facilitate the identification of the information submitted by a trade repository, documents included with an application should bear a unique reference number.

(2)

This Regulation is based on the draft implementing technical standards submitted by ESMA to the European Commission, pursuant to the procedure in Article 15 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority) (3).

(3)

In accordance with Article 15 of Regulation (EU) No 1095/2010, ESMA has conducted open public consultations on such draft implementing technical standards, analysed the potential related costs and benefits and requested the opinion of the ESMA Securities and Markets Stakeholder Group established in accordance with Article 37 of that Regulation,

21.12.2012   

EN

Official Journal of the European Union

L 352/32

(1)

In accordance with Article 29(4) of Regulation (EU) No 648/2012, Articles 13, 14 and 15 of the delegated act with regard to regulatory technical standards specifying the details of the records and information to be kept by central counterparties (CCPs) adopted pursuant to Article 29(4) of Regulation (EU) No 648/2012, rules should also be laid down to specify the format of the record and information kept in accordance those Articles.

(2)

To carry out their duties effectively and consistently, the relevant authorities should be provided with data that are comparable among CCPs. The use of common formats also facilitates the reconciliation of data between CCPs.

(3)

A CCP should be required to retain data for record keeping purposes in a format compatible with the format in which data is retained by trade repositories, taking into account that in certain circumstances CCPs and trade repositories are required to maintain or report the same information. The use of a common format across different financial market infrastructures facilitates the greater use of these formats by a wide variety of market participants, thus promoting standardisation.

(4)

To facilitate straight through processing and reduction of costs to market participants, it is important to use standardised procedures and data formats across CCPs as much as possible.

(5)

The underlying should be identified by using a single identifier, however there is currently no market wide standardised code to identify the underlyings within a basket. CCPs should therefore indicate at least that the underlying is a basket and use International Securities Identification numbers (ISINs) for standardised indices where possible.

(6)

This Regulation is based on the draft implementing technical standards submitted by the European Securities and Markets Authority (ESMA) to the Commission.

(7)

In accordance with Article 15 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority) (3), ESMA has conducted an open public consultation before submitting the draft implementing technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the opinion of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010,

21.12.2012   

EN

Official Journal of the European Union

L 352/40

(1)

Annex to Regulation (EC) No 2580/2001 lists the competent authorities to whom information and requests concerning the measures imposed by that Regulation should be sent.

(2)

Slovenia requested that the address details concerning its competent authorities should be amended. Furthermore, the European Commission’s address should be updated.

(3)

Annex to Regulation (EC) No 2580/2001 should therefore be updated accordingly,

21.12.2012   

EN

Official Journal of the European Union

L 352/42

(1)

Annex I to Regulation (EC) No 1183/2005 lists the natural and legal persons, entities and bodies covered by the freezing of funds and economic resources under the Regulation.

(2)

On 12 and 30 November 2012, the Sanctions Committee of the United Nations Security Council added three persons to the list of individuals and entities subject to the freezing of assets.

(3)

The address for notifications to the European Commission set out in Annex II to Regulation (EC) No 1183/2005 should be updated.

(4)

Annexes I and II to Regulation (EC) No 1183/2005 should therefore be amended accordingly.

(5)

In order to ensure that the measures provided for in this Regulation are effective, it should enter into force immediately,

(1)

Annex I is amended in accordance with Annex I to this Regulation.

(2)

Annex II is amended in accordance with Annex II to this Regulation.

21.12.2012   

EN

Official Journal of the European Union

L 352/44

(1)

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

(2)

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

21.12.2012   

EN

Official Journal of the European Union

L 352/46

(1)

Pursuant to Article 6(1) of Joint Action 2008/851/CFSP, the Council authorised the Political and Security Committee (‘PSC’) to take decisions on the appointment of the EU Operation Commander for the European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (‘EU Operation Commander’).

(2)

On 15 June 2011, the PSC adopted Decision Atalanta/2/2011 (2) appointing Rear Admiral Duncan POTTS as EU Operation Commander.

(3)

The United Kingdom has proposed that Rear Admiral (designate) Robert TARRANT replace Rear Admiral Duncan POTTS as EU Operation Commander.

(4)

The EU Military Committee supports that proposal.

(5)

In accordance with Article 5 of the Protocol (No 22) on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark does not participate in the elaboration and the implementation of decisions and actions of the Union which have defence implications,

21.12.2012   

EN

Official Journal of the European Union

L 352/47

(1)

On 1 August 2011, the Council adopted Decision 2011/486/CFSP.

(2)

On 20 November 2012, the United Nations Security Council Committee, established pursuant to paragraph 30 of Security Council Resolution 1988 (2011), amended the list of individuals, groups, undertakings and entities subject to restrictive measures.

(3)

The Annex to Decision 2011/486/CFSP should therefore be amended accordingly,

21.12.2012   

EN

Official Journal of the European Union

L 352/49

(1)

On 12 April 2011, the Council adopted Decision 2011/235/CFSP (1).

(2)

It should be specified that the prohibition to sell, supply, transfer or export equipment which might be used for internal repression in Iran does not apply if the sale, supply, transfer or export of such equipment is intended solely for the protective use of the personnel of the Union and its Member States in Iran, nor to the provision of technical assistance, brokering services and other services or of financing and financial assistance related to such equipment.

(3)

Decision 2011/235/CFSP should therefore be amended accordingly,

21.12.2012   

EN

Official Journal of the European Union

L 352/50

(1)

On 20 December 2010, the Council adopted Decision 2010/788/CFSP (1) imposing restrictive measures against the Democratic Republic of the Congo.

(2)

United Nations Security Council Resolution (UNSCR) 2078 (2012) of 28 November 2012 amended the criteria for the designation of persons and entities to be subject to the restrictive measures set out in paragraphs 9 and 11 of UNSCR 1807 (2008).

(3)

UNSCR 2078 (2012) also added a further exemption to the measures set out in paragraph 9 of UNSCR 1807 (2008).

(4)

On 12 and 30 November 2012, the Sanctions Committee established pursuant to UNSCR 1533 (2004) added additional persons to the list of persons and entities subject to restrictive measures.

(5)

Decision 2010/788/CFSP should be amended accordingly,

(1)

Article 3 is replaced by the following:

‘Article 3

Restrictive measures as provided for in Articles 4(1) and 5(1) and (2) shall be imposed against the following persons and, as appropriate, entities, designated by the Sanctions Committee:

The relevant persons and entities are listed in the Annex.’;

(2)

in Article 4(3) the following phrase is added after point (c):

‘or where such entry or transit is necessary for the fulfilment of judicial process.’.

21.12.2012   

EN

Official Journal of the European Union

L 352/54

(1)

On 7 July 2003, the Council adopted Common Position 2003/495/CFSP on Iraq (1) in implementation of United Nations Security Council (UNSC) Resolution 1483 (2003).

(2)

On 15 December 2010, the UNSC adopted Resolution 1956 (2010) by which it decided that the full proceeds from the Development Fund for Iraq should be transferred to the Government of Iraq’s successor arrangements account or accounts and that the Development Fund for Iraq should be terminated no later than 30 June 2011.

(3)

Common Position 2003/495/CFSP should therefore be amended to permit the transfer of frozen funds, other financial assets or economic resources to the successor arrangements to the Development Fund for Iraq put in place by the Government of Iraq under the conditions set out in Security Council Resolutions 1483 (2003) and 1956 (2010).

(4)

Common Position 2003/495/CFSP should therefore be amended accordingly,

21.12.2012   

EN

Official Journal of the European Union

L 352/55

(1)

Under Article 370 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (2), Member States which, at 1 January 1978, taxed the transactions listed in Annex X, Part A, may continue to tax those transactions; these transactions must be taken into account for the determination of the VAT resources base.

(2)

Under Article 371 of Directive 2006/112/EC, Member States which, at 1 January 1978, exempted the transactions listed in Annex X, Part B, may continue to exempt those transactions, in accordance with the conditions applying in the Member State concerned on that date; these transactions must be taken into account for the determination of the VAT resources base.

(3)

In the case of Luxembourg, the Commission, on the basis of Regulation (EEC, Euratom) No 1553/89, adopted Decision 90/178/Euratom, EEC (3) authorising Luxembourg, with effect from 1 January 1989, not to take into account certain categories of transactions and to use certain approximate estimates for the calculation of the VAT own resources base.

(4)

The Commission invited Luxembourg to verify whether those authorisations granted to Luxembourg with no explicit limitation in time, were still needed and to confirm this to the Commission; Luxembourg confirmed that authorisation to use approximate estimates for the transactions mentioned in point 4 of Annex X, Part A to Directive 2006/112/EC was obsolete.

(5)

For the sake of clarity and transparency of Community rules, provisions that have become obsolete or have ceased to have effect should be repealed.

(6)

The measures provided for in this Decision are in accordance with the opinion of the Advisory Committee on Own Resources,

21.12.2012   

EN

Official Journal of the European Union

L 352/56

(1)

Under Article 371 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (2), Member States which, at 1 January 1978, exempted the transactions listed in Annex X, Part B, may continue to exempt those transactions, in accordance with the conditions applying in the Member State concerned on that date; these transactions must be taken into account for the determination of the VAT resources base.

(2)

In the case of Denmark, the Commission, on the basis of Regulation (EEC, Euratom) No 1553/89, adopted Decision 90/184/Euratom, EEC (3) authorising Denmark, with effect from 1 January 1989, not to take into account certain categories of transactions and to use certain approximate estimates for the calculation of the VAT own resources base.

(3)

Since 1 January 1995, Denmark has taxed the transactions referred to in point 2 of Annex X, Part B to Directive 2006/112/EC; the authorisation granted in this connection should be discontinued with effect from that date.

(4)

The Commission invited Denmark to verify whether those authorisations granted to Denmark with no explicit limitation in time, were still needed and to confirm this to the Commission; Denmark confirmed that one authorisation not to take into account the transactions mentioned in point 2 of Annex X, Part B to Directive 2006/112/EC was obsolete.

(5)

For the sake of clarity and transparency of Union rules, provisions that have become obsolete or have ceased to have effect should be repealed.

(6)

The measures provided for in this Decision are in accordance with the opinion of the Advisory Committee on Own Resources,

21.12.2012   

EN

Official Journal of the European Union

L 352/57

(1)

Under Article 378(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (2), Austria may continue to tax the transactions listed in point 2 of Annex X, Part A; these transactions must be taken into account for the determination of the VAT resources base.

(2)

Under Article 378(2)(a) of Directive 2006/112/EC, Austria may continue to exempt the transactions listed in points 5 and 9 of Annex X, Part B; these transactions must be taken into account for the determination of the VAT resources base.

(3)

For the purposes of applying Article 28(3)(a) of the Sixth Directive, paragraph 2(h) of Annex IX (Taxation) to the Act of Accession of the Republic of Austria to the European Communities (3) authorised Austria to tax with value added tax pursuant to point 2 of Annex E, until 31 December 1996, services supplied by dental technicians in their professional capacity and dental prostheses supplied by dentists and dental technicians to Austrian social security institutions; consequently, the authorisation granted in this connection by the Commission for the purposes of determining the VAT own resources base should also be discontinued.

(4)

For the purposes of applying Article 28(3)(b) of the Sixth Directive, paragraph 2(i) of Annex IX (Taxation) to the Act of Accession of the Republic of Austria to the European Communities authorised Austria to exempt from value added tax telecommunications services supplied by public postal services, until such time as the Council has adopted a common scheme for taxation of such services, or until the date on which all present Member States currently applying full exemption cease to apply it, whichever comes first, but in any event until 31 December 1995; consequently, the authorisation granted in this connection by the Commission for the purposes of determining the VAT own resources base should also be discontinued.

(5)

In the case of Austria, the Commission, on the basis of Regulation (EEC, Euratom) No 1553/89, adopted Decision 96/564/Euratom, EC (4) authorising Austria, with effect from 1 January 1995, not to take into account certain categories of transactions and to use certain approximate estimates for the calculation of the VAT own resources base.

(6)

The Commission invited Austria to verify whether those authorisations granted to Austria with no explicit limitation in time, were still needed and to confirm this to the Commission; Austria confirmed that two authorisations were no longer needed.

(7)

For the sake of clarity and transparency of Union rules, provisions that have become obsolete or have ceased to have effect should be repealed.

(8)

The measures provided for in this Decision are in accordance with the opinion of the Advisory Committee on Own Resources,

21.12.2012   

EN

Official Journal of the European Union

L 352/59

(1)

Under Article 380 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (2), Sweden may continue to exempt the supply of services by authors, artists and performers, listed in point 2 of Annex X, Part B, and the transactions listed in points 1, 9 and 10 of Annex X, Part B, for as long as the same exemptions are applied in any of the Member States which were members of the Community on 31 December 1994; these transactions must be taken into account for the determination of the VAT resources base.

(2)

In the case of Sweden, the Commission, on the basis of Regulation (EEC, Euratom) No 1553/89, adopted Decision 96/565/Euratom, EC (3) authorising Sweden, with effect from 1 January 1995, to use certain approximate estimates for the calculation of the VAT own resources base.

(3)

Since 1 January 1997, as long as copyrights and royalties are concerned, Sweden has taxed the transactions referred to in point 2 of Annex X, Part B to Directive 2006/112/EC; the authorisation granted in this connection should be discontinued with effect from that date.

(4)

The Commission invited Sweden to verify whether those authorisations granted to Sweden with no explicit limitation in time, were still needed and to confirm this to the Commission; Sweden confirmed that authorisation to use approximate estimates for the transactions mentioned in point 2 of Annex X, Part B to Directive 2006/112/EC would not apply any longer for copyrights and royalties.

(5)

For the sake of clarity and transparency of Union rules, provisions that have become obsolete or have ceased to have effect should be repealed.

(6)

The measures provided for in this Decision are in accordance with the opinion of the Advisory Committee on Own Resources,

21.12.2012   

EN

Official Journal of the European Union

L 352/60

(1)

Under Article 375 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (2), Greece may continue to exempt the transactions listed in points 2, 8, 11 and 12 of Annex X, Part B; these transactions must be taken into account for the determination of the VAT resources base.