2.12.2009   

EN

Official Journal of the European Union

L 315/1

(1)

By letter of 13 September 2005 (2), Denmark notified the Commission of an amendment to the Danish tonnage tax scheme, initially authorised by decision of 12 March 2002 (3) (Case N 563/01).

(2)

This amendment has been registered as notified aid under N 469/05. The notified amendment was introduced by Law No 408 of 1 June 2005.

(3)

By letters of 28 October 2005, 19 May and 29 August 2006 (4), the Commission requested the Danish authorities to provide further information, which was transmitted in their replies of 22 November 2005, 30 June 2006 and 29 September 2006 (5).

(4)

By Decision of 7 February 2007, the Commission decided to initiate the formal investigation procedure (hereinafter ‘the opening decision’), pursuant to Article 4(4) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (6) (hereinafter the State Aid Procedure Regulation). By decision of 4 April 2007, the Commission adopted a Corrigendum decision modifying the opening decision at the request of the Danish authorities. A notice summarising the decision and the full content of the letter in the official language — and in its corrected version — were published in OJ C 135/6 of 19 June 2007  (7).

(5)

By letter of 7 March 2007 (8), Denmark commented on the opening decision. Only one interested party made observations by letter of 19 July 2007 (9).

(6)

The notified measure was described in the opening decision and will be recalled in this section.

(7)

The commercial transactions between two companies belonging to the same group have to be made on the basis of the arm length’s principle. In accordance with this principle a verification of the consistency of the prices in the transactions between affiliates belonging to the same company group with market prices shall be carried out. In order to allow the fiscal administration to check that this principle is fulfilled, companies have to provide all necessary information on their commercial transactions with affiliates belonging to the same group.

(8)

Act No 408 of 1 June 2005 exempts Danish maritime companies taxed under the Danish tonnage tax (10) from their obligation to provide the fiscal authorities with all necessary information on their financial transactions with foreign companies belonging to the same group.

(9)

More precisely, Article 1(9) of the said Act holds that ‘paragraphs 1 to 8 do not apply either to companies etc. who declare their income under the Tonnage Tax Act with regard to controlled transactions with foreign legal persons or permanent establishments (cf. paragraph 1(2) to (4)) where the revenue accruing from such transactions shall be allocated to revenue subject to Tonnage Tax.’ Paragraphs 1 to 8 to which the Article refers are contained in Article 3B(9) of the Tax Management Act (Consolidated Act 869 of 12 August 2004, as last amended by Article 1 of Act 1441 of 22 December 2004).These paragraphs relate to two major obligations imposed on all Danish companies operating in Denmark, namely:

(10)

Indeed, the notified amendments provide for the exemption of the tonnage tax companies from both obligations in relation to their cross-border transactions, while they remain in force for tonnage tax companies as regards transactions between affiliates within Denmark.

(11)

The notified measure will therefore have an impact on the ‘arm’s length principle’ referred to in Section 2.11.1 of the initial decision of 12 March 2002 approving the Danish tonnage scheme (11), since it will modify the obligation to provide information and records imposed on the companies benefiting from tonnage tax in respect of their cross-border transactions.

(12)

The exemption from the obligation to provide information and records obligation is specific to companies under tonnage tax.

(13)

The tonnage tax scheme is described in Commission decisions of 12 March 2002 in Case N 563/01 and of 7 February 2007 in Case N 469/05. Its main features are recalled hereafter in the present section.

(14)

The income pertaining to all eligible operations and taxable under the tonnage tax scheme is a lump sum corresponding to the sum of fixed amounts determined for each vessel by reference to its tonnage, regardless of the real profit made by the shipping company, as follows:

(15)

The income calculated in this manner is taxed at the ordinary rate of the corporation tax.

(16)

Implemented with effect as from 1 January 2001, this regime is open to companies that are tax-liable in Denmark (those having a fixed place of operation in Denmark) and that provide maritime transport services. The scheme is also open to foreign companies that become registered in Denmark by moving their administrative base thereto. Only revenue derived from shipping transport operations can fall under the scheme.

(17)

Shipping companies are free to opt for the regime or not. The choice is to be made no later than the submission of the tax return in respect of the year in which tonnage taxation has been made use of for the first time. The decision whether to choose or to opt out of tonnage taxation is binding for a period of 10 years. Within Denmark, shipping companies belonging to the same company group have to make the same choice with regard to the option for the tonnage tax scheme. When a maritime company opts for the tonnage tax regime, all its vessels and its operations that meet the conditions fall under this fiscal regime.

(18)

To the best knowledge of the Commission, Denmark applies at present only one other scheme in favour of maritime transport operators, in addition to the tonnage tax regime: that exempting ship-owners from the payment of the income tax and social contributions for their seafarers working on board eligible vessels (the so-called DIS regime) (12).

(19)

As recalled in the decision of 7 February 2007, the Danish authorities committed themselves by letter of 14 February 2006 to notify again the notified modification within 10 years. The measure under examination is thus deemed to expire at the end of 2015.

(20)

As recalled in the decision of 7 February 2007, the Danish authorities indicated that this modification should have no budgetary impact on the existing regime. Individual aids will not be modified by the amendment envisaged.

(21)

In its opening decision, the Commission raised two main concerns with respect to the notified measure.

(22)

The Commission recalled that ring-fencing measures are crucial to ensuring the ‘waterproofness’ of tonnage tax regimes.

(23)

In particular, without an effective implementation of the ring-fencing measure at stake, sectors other than maritime transport, be it in the Member State in question or in other countries, may benefit from the possibility to evade corporation tax through commercial transactions with an affiliate taxed under the tonnage tax regime of the Member State in question.

(24)

The Commission also feared that the alteration of the ring-fencing measure concerned by the notification will lead to a situation where activities tax-liable in other countries, thus not covered by the tonnage tax regime in Denmark will unduly benefit from the latter through unfairly priced transactions with Danish-based affiliates taxed under the Danish tonnage tax.

(25)

The Commission noted that the Danish fiscal authorities would keep however the possibility to perform ex post verifications of intra-group transactions involving only Danish tonnage tax companies.

(26)

By letter of 15 March 2007 (14), the Danish authorities reacted to the opening decision by indicating that they had no further comments to make and that they therefore referred to the answers they had previously gave by the letters of 22 November 2005, 30 June 2006 and 29 September 2006.

(27)

The letter of 22 November 2005 mentions the following: ‘The notified scheme will not involve any transfer of State resources to the beneficiary companies. It is a reduction of the reporting and documentation requirement which has no economic value in itself. The notified scheme does not therefore involve any additional financial or fiscal advantages, etc. as compared to the schemes previously approved by the Commission. Shipping companies subject to tonnage tax must comply with the arms-length principle for all their controlled transactions. The notified scheme does not change this. The scheme merely comprises a reduction in the requirement for documentation of compliance with the arms-length principle, for certain controlled transactions.’

(28)

In their letter of 30 June 2006, the Danish authorities indicate that before the entry into force of Act 408 of 1 June 2005, the obligation to provide information and records only applies to cross-border transactions between affiliates. The said Act has extended this obligation to transactions between a Danish tonnage tax company and one non-tonnage tax affiliate tax-liable in Denmark.

(29)

In their letter of 29 September 2006, the Danish authorities indicated the following with respect to the issue of whether foreign countries, including the Member States other than Denmark, should bear the burden of controlling all cross-border transactions with companies taxed under the Danish Tonnage Tax:

‘A country’s tax authorities have a duty to check the income statements of businesses and persons liable for tax in that country. Under international commitments it may also be necessary to forward information to other countries — either spontaneously or on request.

It must be within the remit of the Member State’s tax authority itself to decide how to fulfil its control tasks. It is of crucial importance to the Danish tax authorities that Danish tax revenue is safeguarded taking account of the available resources. This also means that its control work will naturally concentrate on taxable entities which have been risk-assessed as worthy of close monitoring.

The proposed amendment of the Danish tonnage tax scheme does not alter that state of affairs. In contrast, it may affect the Danish tax authorities’ opportunities to comply with requests for information from other countries’ tax authorities.

Where transfer pricing in particular is concerned, it may be difficult to obtain after the fact the necessary evidence that internal group transactions have been effected in accordance with the arm’s-length principle. Often, the basis for comparison to be used for the assessment will not be complete. It is therefore considerably easier to obtain the necessary records at the time the internal group transaction is effected. The duty to provide records is a clear incentive on an ongoing basis to secure material to support the conclusion that the internal transactions were effected in accordance with the arm’s-length principle.

The significance of the notified amendment is that those subject to the tonnage tax are exempted from the obligation to provide records if transactions concern foreign group companies. Under the exemption such entities will not be subject to the same requirement to secure material on an ongoing basis or, indeed, at all to support the conclusion that transactions with those group companies were effected in accordance with the arm’s-length principle. A request from another country to supply information can be met if the material exists, for example company accounts with vouchers. However, the Danish tax authorities will not be able to require new material to be drawn up solely for use by another country’s tax authorities. If a taxable entity is not subject to the obligation to provide records, it will not, for instance, be possible to require that that entity draw up a comparative analysis for the benefit of another country. To that extent the exemption may be to the detriment of other countries.’

(30)

The same letter of 29 September 2006 mentions the following with respect to the issue of whether, after the introduction of the notified measure, its ring fence would remain waterproof against any attempt at tax evasion on the part of foreign affiliates of maritime companies taxed under the Danish Tonnage Tax:

‘For such an assurance to be possible, this would require at least that each year all entities liable for tonnage tax with foreign group companies be checked and that all transactions between the two parties be checked in that connection. However, that would be completely unrealistic. The Danish tax authorities are required to prioritise their resources and to attempt to optimise their control work.

The applicable rules are an expression of the fact that attempts have been made to create the best possible ring-fence against tax evasion. The notified amendment — exemption from the obligation to provide information and records — will weaken that fence a little. Hence the notification to the Commission.’

(31)

By the aforementioned letter, the Danish authorities announced that the modification will undermine the ring-fence measure a little, specifying however that ‘a little does mean only a little’. According to the Danish authorities, ‘where the other Member State concerned by a cross-border transaction also has a tonnage tax scheme, the amendment will have no significance. Problems can only arise with countries which have not implemented such a tonnage tax scheme. However, it will be important here whether the country has itself introduced an obligation to provide records or has not found it necessary to impose such an obligation on its taxable subjects.’

(32)

To the question of how to justify an unequal treatment, as regards the obligation to provide information and records, between companies taxed under the Danish tonnage tax scheme and those that are not (but which are tax liable for the Danish corporation tax), the Danish authorities replied that the special income statement, including the unavailability of deductions, means that the obligation to provide information and records is of less relevance to persons liable to tonnage tax.

(33)

Only one interested party, the Danish Shipowners’ Association, Danmarks Rederiforening, reacted to the publication in the OJ of the notice summarising the opening decision.

(34)

By letter of 19 July 2007 (15), the Danish Shipowners’ Association recalls that a Danish shipping company must, as before, act under arm’s-length conditions both internally, between the tonnage-taxed activity and the general activity, and externally in relation to foreign grouped companies. The company must also continue to be able to provide evidence for the prices used.

(35)

The Danish Shipowners’ Association underlines that, under the notified measure, the companies would not have to provide in advance the information in relation to commercial transactions with foreign affiliates, but only when requested to.

(36)

With respect to the issue of whether it is legitimate to treat companies differently in terms of administrative procedures, the Danish Shipowners’ Association points out that it cannot surely be the Commission’s opinion that certain companies should have unnecessary administrative burdens imposed on them merely so as to treat them equally in competition terms with other companies in respect of which the authorities feel that the procedures in question are necessary.

(37)

Denmark did not send comments on the observations submitted by the Danish Ship-owners’ Association.

(38)

Under Article 87(1) of the EC Treaty, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be regarded as incompatible with the common market.

(39)

Through the tonnage tax scheme the Danish authorities grant an advantage, by lowering the corporate tax that this sector would otherwise have to bear, through State resources, thereby favouring certain undertakings since the measure is specific to the international shipping sector. Such subsidies threaten to distort competition and could affect trade between Member States, since such shipping activities are essentially carried out on a worldwide market.

(40)

The Commission considers that the notified measure does not alter the qualification of the scheme as State aid within the meaning of Article 87(1) of the EC Treaty.

(41)

In this context, the main issue at stake is to determine whether the envisaged measure would modify the assessment made in Commission decision of 12 March 2002 (16) regarding the overall compatibility of the regime with the common market.

(42)

Under Article 87(3)(c) of the EC Treaty, aid to facilitate the development of certain economic activities may be considered compatible with the common market, where such aid does not adversely affect trading conditions to an extent contrary to the common interest, and thus provides a possible basis for an exemption from the general prohibition of State aid. In the present case, the Commission considers that the notified measure should be examined under Article 87(3)(c) of the EC Treaty.

(43)

In particular, aid in favour of the maritime sector should be examined in the light of the 2004 Community guidelines on State aid to maritime transport (17) (hereinafter ‘the Guidelines’).

(44)

As recalled in the opening decision, one of the main conditions for the compatibility of tonnage tax schemes with the common market is the implementation of ring-fencing measures attached to such schemes. In particular, this condition is reflected by section 3.1, last subparagraph of the Guidelines, which states that ‘in cases where a shipowning company is also engaged in other commercial activities, transparent accounting will be required in order to prevent “spill-over” into non-shipping activities’.

(45)

The ring-fencing measures which are an integral part of the scheme are intended to ensure that no activities other than maritime transport, in the Member State in question, or in any other Member State or third country, would indirectly benefit from the scheme. Should the tonnage tax scheme as amended potentially result in non-maritime activities benefiting from the Danish tonnage tax scheme, the compatibility of the latter would be called into question.

(46)

One of the main ring-fencing measures is the verification — on the basis of the arm’s length principle — of commercial transactions between companies taxed under tonnage tax and their possible affiliates (or the part of the companies in question which is subjected to the normal corporation tax), be these affiliates national or foreign enterprises.

(47)

Indeed, even if the Danish authorities consider that a reporting and documentation requirement has no economic value in itself, it is in fact related to financial transactions which have an economic nature per se; without an effective implementation of the ring-fencing measure concerning commercial transactions, sectors other than maritime transport, be it in the Member State in question or in other countries, may benefit from the possibility to avoid corporation tax through commercial transactions with an affiliate taxed under the tonnage tax regime of the Member State in question, without this being justified by any legitimate objective of common interest.

(48)

Moreover, where ring-fencing measures prove ineffective or are likely to be ineffective, even partially, the Commission considers that the tonnage tax regime may create the possibility for tax evasion to the detriment of other Member States or EAA countries

(49)

For these reasons already, the relaxation of the ring-fencing measures must be regarded as adversely affect trading conditions to an extent contrary to the common interest. The regime, under these circumstances, would be incompatible with the common market.

(50)

In addition, the Commission understands that the Danish authorities intend to continue to verify — in application of the ring-fencing measure based on the arm’s length principle — transactions between two affiliated companies, where one of them benefits from the Tonnage tax, as previously, but only in case they are both tax-liable in Denmark.

(51)

Consequently, while the verification of infra-national transactions with a company under the tonnage tax would remain under the supervision and responsibility of the Danish fiscal authorities, the verification of cross-border transactions between a tonnage tax company in Denmark and a foreign affiliate would be left to the responsibility of the foreign country concerned which would lead to a lack of supervision and surveillance regarding international financial transactions.

(52)

It results that the notified measure modifies the Danish tonnage tax scheme, approved by the Commission in 2002 (18) as it will exempt tonnage tax companies from requirements that were in force in 2002. Activities other than maritime transport exercised in another Member State or EEA country by an affiliate of an undertaking subject to tonnage tax in Denmark, might more easily benefit from the Danish tonnage tax and escape normal corporation tax in the Member State or EEA country concerned. This is recognised by Denmark when it says that the ring-fencing measure in question will be weakened ‘a little’. However, the principles of non-discrimination and equal treatment for all companies in the sector should be applied; the Danish authorities are assuming that fraud and tax evasion in commercial transactions are uncommon, however, even if that was the case, control seems to be necessary to ensure an accurate practice in international transactions.

(53)

The Commission considers that the ring-fencing measure concerning intra-group transactions must protect against distortions of the common market arising equally from advantages to affiliated companies in the Member State concerned and in the other Member States. Otherwise, the consequences of tax evasion through a tonnage tax company would seriously impact the functioning of the common market.

(54)

As a consequence, the Commission considers that the Member State, which has introduced a tonnage tax scheme must treat cross-border intra-group transactions (cross-border transactions that could benefit affiliated companies in any other Member State or EEA country) as if these transactions benefited such companies on its own territory. In other terms, a Member State, for the purpose of implementing the ring-fencing measure concerning intra-group transactions, must apply the same standards to transactions of a tonnage tax company with a foreign affiliate as those it applies to transactions with a national non-tonnage tax affiliate.

(55)

Under the principles of non-discrimination and equal treatment the tonnage tax Member State must impose the same obligation to provide information and records, under the ring-fencing measure in question, on infra-national transactions (that may be detrimental to this Member State) and on cross-border transactions (that may be detrimental to other Member States or EEA countries). This information is indeed essential for checking transfer prices within a group of companies.

(56)

By alleviating the verifications that the Danish authorities have to perform on transactions between a company under the Danish tonnage tax scheme and any of its foreign affiliate, Denmark fails to comply with the principles of non-discrimination and equal treatment. By doing so, Denmark would transfer at least part of the burden of verifying that the objectives of the system are respected, and consequent possible distortion of the common market, to the other Member State and to the EEA country where the non-tonnage tax affiliate concerned by the transaction is taxed.

(57)

Therefore, the Commission concludes that the notified measure will result in significant weakening of the ring-fencing measure from another Member State or an EEA country.

(58)

Furthermore, the Commission considers as unjustified the unequal treatment in terms of obligation to provide information and records, between beneficiaries having only national affiliates not eligible for tonnage tax and beneficiaries having also foreign affiliates. The measure would thus create an unjustified distortion of competition between companies which have foreign affiliates, and others which do not.

(59)

As a result, the effects of the notified measure are such that they affect trading conditions to an extent contrary to the common interest within the meaning of Article 87(3)(c) of the EC Treaty and they do not fulfil the requirement contained in section 3.1, last subparagraph of the Guidelines. Therefore, the measure in question should be declared incompatible with the common market within the meaning of Article 87(1) of the EC Treaty.

(60)

To conclude, the Commission considers that the notified measure would lead to distortions counter to the common interest within the meaning of Article 87(3)(c) of the EC Treaty and thus render the Danish tonnage tax scheme incompatible with the common market within the meaning of Article 87(1) of the EC Treaty,

2.12.2009   

EN

Official Journal of the European Union

L 315/8

(1)

Directive 2003/85/EC sets out minimum control measures to be applied in the event of an outbreak of foot-and-mouth disease and certain preventive measures aimed at increasing the awareness and preparedness of the competent authorities and the farming community concerning that disease.

(2)

Article 65 of Directive 2003/85/EC provides that Member States are to ensure that the handling of live foot-and-mouth disease virus for research, diagnosis or manufacture is carried out only in approved laboratories listed in Annex XI and operated at least according to the bio-security standards set out in Annex XII to that Directive.

(3)

Part A of Annex XI to Directive 2003/85/EC lists national laboratories authorised to handle live foot-and-mouth disease virus for research and diagnostic purposes. Part B of that Annex lists laboratories handling virus antigen during the manufacture of vaccines.

(4)

France has officially informed the Commission that one of their national reference laboratories and a vaccine manufacturing laboratory are no longer considered to meet the bio-security standards provided for in Article 65(d) of Directive 2003/85/EC.

(5)

The Netherlands have officially informed the Commission of a further change of name of their national diagnostic laboratory authorised to handle live foot-and-mouth disease virus, and of the takeover by the private company ‘Lelystad Biologicals BV, Lelystad’ of that part of the former Central Institute for Animal Disease Control (CIDC-Lelystad) authorised to handle live foot-and-mouth disease virus for the production of vaccines.

(6)

It is therefore necessary to amend the lists of laboratories authorised to handle live foot-and-mouth disease virus set out in Annex XI to Directive 2003/85/EC.

(7)

Point 1 of Annex XII to Directive 2003/85/EC sets out bio-security standards for laboratories handling live foot-and-mouth disease virus. It provides that such laboratories are to meet or exceed the minimum requirements laid down in the ‘Minimum standards for laboratories working with foot-and-mouth virus in vitro and in vivo’ established by the European Commission for the control of foot-and-mouth disease, 26th session, Rome, April 1985, as modified in 1993.

(8)

Point 1 of Annex XV to Directive 2003/85/EC provides that all national laboratories handling live foot-and-mouth disease virus are to operate under high security conditions laid down in ‘Minimum standards for laboratories working with foot-and-mouth disease virus in vitro and in vivo’, European Commission for the control of foot-and-mouth disease — 26th Session, Rome, 1985, as amended by Appendix 6(ii) of the Report of the 30th Session, Rome, 1993.

(9)

In addition, point 7 of Annex XVI to Directive 2003/85/EC provides that the Community Reference Laboratory is to operate according to recognised conditions of strict disease security as indicated in ‘Minimum standards for laboratories working with foot-and-mouth disease virus in vitro and in vivo’, European Commission for the control of foot-and-mouth disease — 26th Session, Rome, April 1985, as amended by Appendix 6 (ii) of the report to the 30th Session of the European Commission for the control of foot-and-mouth disease 1993, referred to in Annex XII to that Directive.

(10)

Following an outbreak of foot-and-mouth disease in 2007 in a Member State that was related to foot-and-mouth disease virus escape from a laboratory, those ‘Minimum standards for laboratories working with foot-and-mouth disease virus in vitro and in vivo’ (bio-security standards) were amended. Following discussions on the bio-security standards with the Member States in the framework of the Standing Committee on the Food Chain and Animal Health, the amended version of those standards was adopted at the 38th General Session of the European Commission for the control of foot-and-mouth disease on 29 April 2009 (2) and is included in the Report of the 38th General Session of the European Commission for the control of foot-and-mouth disease, Rome 28-30 April 2009 (the Report). It replaces the bio-security standards established in 1985, as modified in 1993. Annexes XII, XV and XVI to Directive 2003/85/EC should therefore be amended accordingly.

(11)

Directive 2003/85/EC should be amended accordingly.

(12)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

2.12.2009   

EN

Official Journal of the European Union

L 315/11

(1)

Commission Decision 2009/821/EC of 28 September 2009 drawing up a list of approved border inspection posts, laying down certain rules on the inspections carried out by Commission veterinary experts and laying down the veterinary units in Traces (3) lays down a list of border inspection posts approved in accordance with Directives 91/496/EEC and 97/78/EC. That list is set out in Annex I to that Decision.

(2)

The Commission inspection service, the Food and Veterinary Office (FVO) carried out an inspection at the border inspection post at the airport of Copenhagen in Denmark. The results of the inspection were satisfactory. An additional inspection centre should therefore be added for that border inspection post in the list set out in Annex I to Decision 2009/821/EC.

(3)

Following communications from Denmark, France, Italy and Portugal, certain categories of animals or products of animal origin that can be checked at certain border inspection posts already approved in accordance with Decision 2009/821/EC should be added to the list of border inspection posts for those Member States set out in Annex I to that Decision.

(4)

Following results of FVO inspections, in accordance with Decision 2009/821/EC, and communications from France, Ireland and Italy, certain categories of animals and products of animal origin that can be checked at certain border inspection posts already approved in accordance with Decision 2009/821/EC should be removed from the list of border inspection posts for those Member States set out in Annex I to that Decision.

(5)

Following a communication from Latvia, the list of border inspection posts for that Member State should be amended to take account of the suspension of one of its border inspection posts.

(6)

Following communications from Belgium, Germany and France, certain border inspection posts for those Member States should be deleted from the list of border inspection posts set out in Annex I to Decision 2009/821/EC.

(7)

Following communication from Italy, the list of border inspection posts for that Member State should be amended to take account of the change of the name of one of its border inspection posts.

(8)

In addition, Belgium communicated that the OCHZ facility at the border inspection post at Zeebrugge has been closed and a new inspection facility has been put in place.

(9)

Decision 2009/821/EC should therefore be amended accordingly.

(10)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

2.12.2009   

EN

Official Journal of the European Union

L 315/15

(1)

Regulation (EC) No 1085/2006 lays down the objectives and main principles for pre-accession assistance to candidate and potential candidate countries for the period from 2007 to 2013 and confers the responsibility for its implementation to the Commission.

(2)

Articles 11, 12, 13, 14, 18 and 186 of Regulation (EC) No 718/2007 give the Commission the possibility to confer management powers to the beneficiary country and define the requirements for such conferral relating to the Component V — Agriculture and rural development of the instrument for pre-accession assistance.

(3)

Under Article 7 of Regulation (EC) No 718/2007 the Commission and the beneficiary country shall conclude a framework agreement, in order to set out and agree on the rules for cooperation concerning EC financial assistance to the beneficiary country. Where necessary, the framework agreement may be complemented by a sectoral agreement, or sectoral agreements, covering component specific provisions.

(4)

For conferring management powers to the beneficiary country the conditions laid down in Article 53c and 56(2) of the Financial Regulation and in Article 35 of the Implementing Rules must be fulfilled.

(5)

The Framework Agreement on the rules for cooperation concerning EC financial assistance to the Republic of Croatia in the framework of the implementation of the assistance under the instrument for pre-accession assistance (IPA) between the Government of the Republic of Croatia and the Commission of the European Communities was concluded on 17 December 2007.

(6)

The Programme for Agriculture and Rural Development of the Republic of Croatia under the IPA (hereinafter referred to as the IPARD Programme), approved by Commission Decision C(2008) 690 of 25 February 2008, in accordance with Article 7(3) of Regulation (EC) No 1085/2006, and Article 184 of Regulation (EC) No 718/2007, included a plan for the annual Community contributions as well as the financing agreement.

(7)

The Sectoral Agreement concluded on 12 January 2009 between the Commission of the European Community, acting for and on behalf of the European Community and the Government of the Republic of Croatia, acting on behalf of the Republic of Croatia, complements the provisions of the Framework Agreement, laying down the specific provisions applicable for the implementation and the execution of the IPARD Programme for Agriculture and Rural Development of the Republic of Croatia under the instrument for pre-accession assistance (IPA).

(8)

The IPARD Programme was last amended on 10 September 2009 by Commission Decision C(2009) 6770.

(9)

Pursuant to Article 21 of Commission Regulation (EC) No 718/2007 the beneficiary country has to designate bodies and authorities responsible for implementation of the IPARD Programme: the Competent Accrediting Officer, the National Authorising Officer, the National Fund, the Managing Authority, the IPARD Agency and the Audit Authority.

(10)

The Government of Croatia has appointed the National Fund Sector, an organisational unit of the State Treasury within the Ministry of Finance, acting as the National Fund, which will execute the functions and responsibilities as defined in Annex I of the Sectoral Agreement.

(11)

The Government of Croatia has appointed the Directorate for Market and Structural Support in Agriculture, an organisational unit of the Ministry of Agriculture, Fisheries and Rural Development, to act as the IPARD Agency, which will execute the functions and responsibilities as defined in Annex I of the Sectoral Agreement.

(12)

The Government of Croatia has appointed the Directorate for Rural Development, Sapard/IPARD Programme Managing Authority, within the Ministry of Agriculture, Fisheries and Rural Development, to act as the Managing Authority, which will execute the functions and responsibilities as defined in Annex I of the Sectoral Agreement.

(13)

The Competent Accrediting Officer notified the European Commission on 12 November 2008 of the accreditation of the National Authorising Officer and the National Fund in accordance with Article 12(3) of Regulation (EC) No 718/2007.

(14)

The National Authorising Officer notified the European Commission on 12 November 2008 of the accreditation of the operating structure in charge of the management and implementation of IPA Component V — Rural development, in accordance with Article 13(3) of Regulation (EC) No 718/2007.

(15)

The Directorate for Market and Structural Support in Agriculture, acting as the IPARD Agency, and the Directorate for Rural Development, Sapard/IPARD Programme Managing Authority, acting as the Managing Authority, will be responsible for implementing the three measures accredited by the National Authorising Officer out of seven from the IPARD Programme: 101 ‘Investments in agriculture holdings to restructure and to upgrade to community standards’, 103 ‘Investments in the processing and marketing of agricultural and fishery products to restructure these activities and to upgrade them to Community standards’ and 301 ‘Improvement and development of rural infrastructure’ as defined in the Programme.

(16)

On 16 March 2009 the Croatian Authorities submitted to the Commission the list of eligible expenditure in conformity with Article 32(3) of the Sectoral Agreement. The Commission approved this list on 8 April 2009.

(17)

In order to take into account the requirements of Article 19(1) of the Framework Agreement the expenditure pursuant to this Decision shall be eligible for Community co-finance only if not paid earlier than the date of conferral decision, with the exception of general costs referred to in Article 172(3c) of Regulation (EC) No 718/2007. Expenditure shall be eligible if it is in accordance with the principles of sound financial management and, in particular, of economy and cost-effectiveness.

(18)

Regulation (EC) No 718/2007 provides that the ex-ante approval requirement referred to in Article 18(2) of Regulation (EC) No 718/2007 may be waived on the basis of a case-by-case analysis of effective functioning of the management and control system concerned and provides for detailed rules for the carrying out of the said analysis.

(19)

Pursuant to Articles 14 and 18 of Regulation (EC) No 718/2007, the accreditations referred to in Articles 11, 12 and 13 of Regulation (EC) No 718/2007 have been reviewed; and the procedures and structures of the bodies and authorities concerned, as set out in the application submitted by the National Authorising Officer, have been examined, including by on-the-spot verifications.

(20)

None the less, the verifications carried out by the Commission for measure 101 ‘Investments in agriculture holdings to restructure and to upgrade to community standards’ and measure 103 ‘Investments in the processing and marketing of agricultural and fishery products to restructure these activities and to upgrade them to Community standards’ are based on a system that is operational, but not yet operating, with regard to all relevant elements.

(21)

Although the Audit Authority is not itself part of this Decision, its level of readiness to operate as a functionally independent audit body by the time of submission to the Commission of the accreditation package for the conferral of management has been evaluated by on-the-spot verifications.

(22)

Croatia’s compliance with the requirements of Article 56(2) of the Financial Regulation and Articles 11, 12 and 13 of Regulation (EC) No 718/2007 has been assessed by on-the-spot verifications.

(23)

The assessment has shown that Croatia complies with the requirements for measures 101 and 103. However, the Directorate for Market and Structural Support in Agriculture, acting as the IPARD Agency, has not yet implemented properly the accreditation criteria for the functions it is due to perform in the framework of the implementation of measure 301 of the Programme for Croatia.

(24)

It is therefore appropriate to waive the ex-ante approval requirements referred to in Article 18(1) of Regulation (EC) No 718/2007 and Article 165 of the Financial Regulation and to confer on the National Authorising Officer, on the National Fund, on the IPARD Agency and on the Managing Authority, the management powers relating to the measures 101 and 103 of the Programme for Croatia on a decentralised basis,

(a)

the National Authorising Officer;

(b)

the National Fund;

(c)

the Operating Structure for IPA — Component V:

2.12.2009   

EN

Official Journal of the European Union

L 315/18

(1)

The Commission White Paper ‘Together for health: a strategic approach for the EU 2008-2013’ (1) adopted by the Commission on 23 October 2007, developing the EU health strategy, identified rare diseases as a priority for action.

(2)

In parallel, the European Parliament and the Council adopted Decision No 1350/2007/EC of 23 October 2007 establishing a second programme of Community action in the field of health (2008 to 2013) (2). According to Article 7(2) as well as to the Annex to that Decision, the actions in the field of generation and dissemination of health information and knowledge shall be implemented in close cooperation with Member States developing consultation mechanisms and participatory processes.

(3)

The European Commission adopted on 11 November 2008 the ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on rare diseases: Europe's challenges’ (3) (hereafter referred to as the Commission Communication) and the Council on 8 June 2009 a Council Recommendation on an action in the field of rare diseases (4) (hereafter referred to as the Council Recommendation).

(4)

The preparation and implementation of Community activities in the field of rare diseases require close cooperation with the specialised bodies in Member States and with the interested parties.

(5)

Therefore, a framework is required for the purpose of regular consultations with those bodies, with the managers of projects supported by the European Commission in the fields of research and public health action and with other relevant stakeholders acting in the field.

(6)

This need for a framework was reflected in the Communication COM(2008) 679 final on rare diseases. Point 7 of the Communication recommended that the Commission be assisted by a European Union Advisory Committee on Rare Diseases.

(7)

The Committee shall not act as a Committee within the meaning of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (5),

(a)

assist the Commission in the monitoring, evaluating and disseminating the results of measures taken at Community and national level in the field of rare diseases;

(b)

contribute to the implementation of Community actions in the field, in particular by analysing the results and suggesting improvements to the measures taken;

(c)

contribute to the preparation of Commission reports on the implementation of the Commission Communication and the Council Recommendation;

(d)

deliver opinions, recommendations or submit reports to the Commission either at the latter's request or on its own initiative;

(e)

assist the Commission in international cooperation on matters relating to rare diseases;

(f)

assist the Commission in drawing up guidelines, recommendations and any other action defined in the Commission Communication and in the Council Recommendation;

(g)

provide an annual report of its activities to the Commission.

(a)

one representative per Member State from ministries or government agencies responsible for rare diseases; the representative shall be designated by the government of each Member State;

(b)

four representatives from patients' organisations;

(c)

four representatives of the pharmaceutical industry;

(d)

nine representatives of ongoing and/or past Community projects in the field of rare diseases financed by the programmes of Community action in the field of health (8) including three members of the pilot European Reference Networks on rare diseases;

(e)

six representatives of the ongoing and/or past rare diseases projects financed by the Community Framework Programmes for Research and Technological Development (9);

(f)

one representative of the European Centre for Disease Prevention and Control (ECDC), whose mandate, established in accordance with Regulation (EC) No 851/2004 of the European Parliament and of the Council of 21 April 2004 establishing a European Centre for disease prevention and control (10) includes activities on rare emerging infectious diseases.

2.12.2009   

EN

Official Journal of the European Union

L 315/22

(1)

Directive 89/556/EEC sets out the animal health conditions governing intra-Community trade in and importation from third countries of fresh and frozen embryos of domestic animals of the bovine species.

(2)

Commission Decision 2006/168/EC of 4 January 2006 establishing the animal health and veterinary certification requirements for imports into the Community of bovine embryos (2) provides that Member States are to authorise imports of embryos of domestic animals of the bovine species collected or produced in a third country listed in Annex I to that Decision by approved embryo collection or production teams listed in the Annex to Commission Decision 92/452/EEC of 30 July 1992 establishing lists of embryo collection teams and embryo production teams approved in third countries for export of bovine embryos to the Community (3).

(3)

Commission Decision 2008/155/EC of 14 February 2008 establishing a list of embryo collection and production teams in third countries approved for imports of bovine embryos into the Community (4) repealed and replaced Decision 92/452/EEC. Decision 2008/155/EC provides that Member States are to import embryos from third countries only if they have been collected, processed and stored by embryo collection and production teams listed in the Annex to that Decision.

(4)

Council Directive 2008/73/EC of 15 July 2008 simplifying procedures of listing and publishing information in the veterinary and zootechnical fields and amending Directives 64/432/EEC, 77/504/EEC, 88/407/EEC, 88/661/EEC, 89/361/EEC, 89/556/EEC, 90/426/EEC, 90/427/EEC, 90/428/EEC, 90/429/EEC, 90/539/EEC, 91/68/EEC, 91/496/EEC, 92/35/EEC, 92/65/EEC, 92/66/EEC, 92/119/EEC, 94/28/EC, 2000/75/EC, Decision 2000/258/EC and Directives 2001/89/EC, 2002/60/EC and 2005/94/EC (5) amended Directive 89/556/EEC and introduced a simplified procedure of listing and publishing the list of embryo collection and production teams in third countries approved for imports of bovine embryos into the Community. Under that new procedure, which is to apply from 1 January 2010, the competence to establish the list will no longer lie with the Commission. The list of embryo collection or production teams that the competent authority of the third country has approved in accordance with the conditions laid down in Directive 89/556/EEC and from which embryos may be dispatched to the Community will only have to be communicated to the Commission, which is to make it available to the public for information purposes.

(5)

As a consequence of the new procedure introduced by Directive 2008/73/EC, Decision 2008/155/EC will be applicable until 31 December 2009.

(6)

Decision 2006/168/EC should therefore be amended accordingly.

(7)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

2.12.2009   

EN

Official Journal of the European Union

L 315/24

(1)

Commission Directive 2003/23/EC (2) contains an error concerning the minimum purity of the active substance oxasulfuron. That error must be corrected.

(2)

The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,

2.12.2009   

EN

Official Journal of the European Union

L 315/25

(1)

Under Regulation (EC) No 689/2008 the Commission is to decide on behalf of the Community whether or not to permit the import into the Community of each chemical subject to the prior informed consent (PIC) procedure.

(2)

The United Nations Environment Programme (UNEP) and the Food and Agriculture Organisation (FAO) have been appointed to provide secretariat services for the operation of the PIC procedure established by the Rotterdam Convention on the prior informed consent procedure for certain hazardous chemicals and pesticides in international trade, hereinafter ‘the Rotterdam Convention’, approved by the Community by Council Decision 2006/730/EC (3).

(3)

The Commission, acting as common designated authority, is required to forward import decisions on chemicals subject to the PIC procedure to the Secretariat of the Rotterdam Convention, on behalf of the Community and its Member States.

(4)

The group of chemicals tributyltin compounds has been added to the PIC procedure, as pesticides, by decision RC.4/5 of the fourth meeting of the Conference of the Parties and for which the Commission has received information from the Secretariat of the Rotterdam Convention in the form of a decision guidance document. Tributyltin compounds fall within the scope of Regulation (EC) No 1907/2006 and belong to those organostannic compounds that are severely restricted for use as substances and constituents of preparations acting as biocides.

(5)

The active substance bis(tributyltin) oxide falls within the scope of Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market (4). Bis(tributyltin) oxide belongs to the group of tributyltin compounds and was used as wood preservative until this remaining use was banned by Commission Regulation (EC) No 1048/2005 of 13 June 2005 amending Regulation (EC) No 2032/2003 on the second phase of the 10-year work programme referred to in Article 16(2) of Directive 98/8/EC of the European Parliament and of the Council concerning the placing of biocidal products on the market (5).

(6)

Accordingly, a final import decision concerning tributyltin compounds should be taken,

2.12.2009   

EN

Official Journal of the European Union

L 315/30

(1)

Council Decision 2004/512/EC of 8 June 2004 establishing the Visa Information System (VIS) (2) established the VIS as a system for the exchange of visa data between Member States and gave a mandate to the Commission to develop the VIS.

(2)

Regulation (EC) No 767/2008 defines the purpose and the functionalities of, and the responsibilities for the VIS and establishes the conditions and procedures for the exchange of visa data between Member States to facilitate the examination of visa applications and related decisions.

(3)

Article 45(2) of Regulation (EC) No 767/2008 provides that the measures necessary for the technical implementation of the central VIS, the national interfaces and the communication infrastructure between the central VIS and the national interfaces shall be adopted in accordance with the procedure referred to in Article 49(2).

(4)

Commission Decision 2009/377/EC (3) lays down measures for the consultation mechanism and the procedures referred to in Article 16 of Regulation (EC) No 767/2008. Commission Decision 2009/756/EC (4) lays down specifications for the resolution and use of fingerprints for biometric identification and verification in the VIS.

(5)

Pursuant to Article 45(2) of Regulation (EC) No 767/2008, measures necessary for the technical implementation of the VIS, in relation to the procedures for entering data and linking applications, for accessing data, for amending, deleting and advance deleting of data and for keeping and accessing the records of data processing operations shall be adopted.

(6)

A technical concept of ownership shall be adopted to ensure that data within the VIS can solely be maintained by the visa authorities of the Member States responsible for entering the data in the VIS.

(7)

The measures laid down by the present Decision for the technical implementation of the VIS should be completed by the Detailed Technical Specifications and the Interface Control Document of the VIS.

(8)

In accordance with Article 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and the Treaty establishing the European Community, Denmark did not take part in the adoption of Regulation (EC) No 767/2008 and is not bound by it nor subject to its application. However, given that Regulation (EC) No 767/2008 builds upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty establishing the European Community, Denmark, in accordance with Article 5 of the Protocol, notified by letter of 13 October 2008 the transposition of this acquis in its national law. It is therefore bound under international law to implement this Decision.

(9)

In accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis  (5), the United Kingdom has not taken part in the adoption of Regulation (EC) No 767/2008 and is not bound by it or subject to its application as it constitutes a development of provisions of the Schengen acquis. The United Kingdom is therefore not an addressee of this Decision.

(10)

In accordance with Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis  (6), Ireland has not taken part in the adoption of Regulation (EC) No 767/2008 and is not bound by it or subject to its application as it constitutes a development of provisions of the Schengen acquis. Ireland is therefore not an addressee of this Decision.

(11)

This Decision constitutes an act building on the Schengen acquis or otherwise related to it within the meaning of Article 3(2) of the 2003 Act of Accession and Article 4(2) of the 2005 Act of Accession.

(12)

As regards Iceland and Norway, this Decision constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis  (7), which fall within the area referred to in Article 1, point B of Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis  (8).

(13)

As regards Switzerland, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 1, point B of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (9) on the conclusion of that Agreement on behalf of the European Community.

(14)

As regards Liechtenstein, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis which fall within the area referred to in Article 1, point B of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/261/EC (10) on the signature, on behalf of the European Community, and on the provisional application of certain provisions of that Protocol.

(15)

The measures provided for in this Decision are in accordance with the opinion of the Committee set up by Article 51(1) of Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (11),

2.12.2009   

EN

Official Journal of the European Union

L 315/35

(1)

On 2 June 2008, the United Nations Security Council (UNSC) adopted Resolution 1816 (2008) calling upon all States to cooperate in determining jurisdiction, and in the investigation and prosecution of persons responsible for acts of piracy and armed robbery off the coast of Somalia. Those provisions were reaffirmed by UNSC Resolution 1846 (2008), adopted on 2 December 2008.

(2)

On 10 November 2008, the Council adopted Joint Action 2008/851/CFSP on a European Union military operation to contribute to the deterrence, prevention and repression of acts of piracy and armed robbery off the Somali coast (1) (operation ‘Atalanta’).

(3)

Article 12 of Joint Action 2008/851/CFSP provides that persons having committed, or suspected of having committed acts of piracy or armed robbery in Somali territorial waters, who are arrested and detained, with a view to their prosecution, and property used to carry out such acts, may be transferred to a third State which wishes to exercise its jurisdiction over the aforementioned persons and property, provided that the conditions for the transfer have been agreed with that third State in a manner consistent with relevant international law, notably international law on human rights, in order to guarantee in particular that no-one shall be subjected to the death penalty, to torture or to any cruel, inhuman or degrading treatment.

(4)

In accordance with Article 24 of the Treaty, the Presidency, assisted by the Secretary-General/High Representative (SG/HR), negotiated an Exchange of Letters between the European Union and the Government of Seychelles on the conditions and modalities for the transfer of suspected pirates and armed robbers from EUNAVFOR to the Republic of Seychelles and for their treatment after such transfer.

(5)

The Exchange of Letters should be signed and provisionally applied, subject to its conclusion at a later date,

2.12.2009   

EN

Official Journal of the European Union

L 315/44

2.12.2009   

EN

Official Journal of the European Union

L 315/46

(1)

Article 4 of the Protocol on transitional provisions provides that until the entry into force of the European Council Decision referred to in the first subparagraph of Article 16(6) of the Treaty on European Union regarding the list of Council configurations, the list of Council configurations, in addition to the General Affairs and the Foreign Affairs ones, should be established by the General Affairs Council, acting by a simple majority.

(2)

The list of Council configurations was established by the Council (General Affairs) on 22 July 2002, as part of Annex I to the Council's Rules of Procedure and following the list agreed upon at the European Council meeting in Seville on 21 and 22 June 2002.

(3)

In order to comply with the provisions of the Treaties, it is appropriate to adapt this list, which is to be inserted in the Council's Rules of Procedure,

2.12.2009   

EN

Official Journal of the European Union

L 315/48

(1)

The Treaty of Lisbon institutes the new office of President of the European Council.

(2)

The President of the European Council should be elected,

2.12.2009   

EN

Official Journal of the European Union

L 315/49

(1)

The Treaty of Lisbon institutes the new office of High Representative of the Union for Foreign Affairs and Security Policy.

(2)

In accordance with Article 5 of the Protocol (No 36) on transitional provisions and as foreseen in the Declaration (No 12) annexed to the Final Act of the Intergovernmental Conference which has adopted the Treaty of Lisbon, the High Representative of the Union for Foreign Affairs and Security Policy appointed during the term of office of a Commission should become a Member of the Commission for the remainder of the Commission's term of office.

(3)

The High Representative of the Union for Foreign Affairs and Security Policy should be appointed,

2.12.2009   

EN

Official Journal of the European Union

L 315/50

(1)

Declaration (no 9) annexed to the Final Act of the Intergovernmental Conference which has adopted the Treaty of Lisbon foresees that the European Council adopts, on the date of entry into force of the Treaty, the Decision the text of which is contained in the said Declaration.

(2)

It is therefore appropriate to adopt that Decision,

2.12.2009   

EN

Official Journal of the European Union

L 315/51

(1)

The Treaty of Lisbon transforms the European Council into an institution of the European Union.

(2)

The European Council should therefore adopt its Rules of Procedure.

(3)

To enable these Rules of Procedure to be adopted immediately on the day on which the Treaty of Lisbon enters into force, this Decision should provide that the European Council may use the written procedure laid down in Article 7 of its Rules of Procedure for the adoption of those Rules of Procedure,