27.3.2014   

EN

Official Journal of the European Union

L 91/1

(1)

Following an investigation (‘the original investigation’), the Council, by Regulation (EC) No 682/2007 (2), imposed a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels currently falling within CN codes ex 2001 90 30 and ex 2005 80 00 originating in Thailand. The measures took the form of an ad valorem duty ranging between 3,1 % and 12,9 %.

(2)

By Regulation (EC) No 954/2008 (3), the Council amended the measures in force with regard to one exporting producer and consequently the rate applicable to ‘all other companies’, thereafter ranging between 3,1 % and 14,3 %.

(3)

Following an expiry review pursuant to Article 11(2) of the basic Regulation (‘the expiry review’) the Council, by Implementing Regulation (EU) No 875/2013 (4), maintained the duty ranging between 3,1 % and 14,3 %.

(4)

The European Commission (‘the Commission’) received a request for a partial interim review pursuant to Article 11(3) of the basic Regulation. This request was lodged by River Kwai International Food Industry Co. Ltd (‘the applicant’), an exporting producer from Thailand.

(5)

The request was limited in scope to the examination of dumping as far as the applicant was concerned.

(6)

In its request, the applicant provided prima facie evidence that, as far as the dumping by the applicant is concerned, the circumstances on the basis of which the measures in force were imposed have changed and that these changes were of a lasting nature.

(7)

In particular, the applicant claimed that the changed circumstances relate to changes in the product range it commercialises which have a direct impact on the cost of production thereof. A comparison of its domestic prices with its export prices to the Union indicated that the dumping margin appeared to be lower than the current level of measures.

(8)

The Commission determined, after consulting the Advisory Committee, that sufficient evidence existed to justify the initiation of a partial interim review limited to the examination of dumping as far as the applicant is concerned. On this basis, it announced by a notice published in the Official Journal of the European Union  (5) on 14 February 2013 (‘the notice of initiation’), the initiation of a partial interim review pursuant to Article 11(3) of the basic Regulation.

(9)

The investigation of dumping covered the period from 1 July 2011 to 31 December 2012 (‘the review investigation period’ or ‘RIP’).

(10)

The Commission officially advised the applicant, representatives of the exporting country, as well as the association of Union producers (Association Européenne des Transformateurs de Maïs Doux ‘AETMD’) of the initiation of the interim review.

(11)

Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set out in the notice of initiation.

(12)

The written comments submitted by AETMD were considered and, where appropriate, taken into account.

(13)

In order to obtain the information necessary for its investigation, the Commission sent a questionnaire to the applicant and received a reply within the deadline set for that purpose.

(14)

The Commission sought and verified all information deemed necessary for the determination of dumping. The Commission carried out a verification visit at the premises of the applicant in Thailand in Bangkok and Kanchanaburi.

(15)

The product under this review is the same as that defined in the original investigation and in the expiry review, namely sweetcorn (Zea mays var. saccharata) in kernels, prepared or preserved by vinegar or acetic acid, not frozen, currently falling within CN code ex 2001 90 30, and sweetcorn (Zea mays var. saccharata) in kernels, prepared or preserved otherwise than by vinegar or acetic acid, not frozen, other than products of heading 2006, currently falling within CN code ex 2005 80 00, originating in Thailand.

(16)

As established in the original investigation and confirmed in the expiry review, sweetcorn produced and sold in the Union and sweetcorn produced and sold in Thailand was found to have essentially the same physical and chemical characteristics and the same basic uses as sweetcorn produced in Thailand and sold for export to the Union. They are therefore considered to be alike within the meaning of Article 1(4) of the basic Regulation.

(17)

In accordance with the first sentence of Article 2(2) of the basic Regulation, the Commission first established whether the applicant’s total domestic sales of the like product during the RIP were representative. The domestic sales are representative if the total domestic sales volume of the like product represented at least 5 % of the total export sales volume of the product concerned to the Union during the RIP.

(18)

Total domestic sales of the like product were found to be representative.

(19)

The Commission subsequently identified the product types sold domestically that were identical or directly comparable with the types sold for export to the Union.

(20)

For each of those product types, the Commission established whether domestic sales were sufficiently representative in accordance with Article 2(2) of the basic Regulation. The domestic sales of a product type are representative if the total volume of domestic sales of that product type to independent customers during the RIP represents at least 5 % of the total volume of export sales to the Union of the identical or comparable product type.

(21)

The Commission established that, for all the product types sold for export to the Union, the applicant’s domestic sales were made in representative quantities.

(22)

Next, the Commission defined the proportion of profitable sales to independent customers on the domestic market for each product type during the RIP in order to decide whether to use actual domestic sales for the calculation of the normal value in accordance with Article 2(4) of the basic Regulation.

(23)

The normal value is based on the actual domestic price per product type irrespective of whether the sales are profitable or not, if:

(24)

The Commission’s analysis of domestic sales showed that more than 90 % of domestic sales were profitable and that the weighted average sales price was higher than the unit cost of production. Accordingly, the normal value was calculated as a weighted average of the prices of all domestic sales during the RIP.

(25)

All sales by the applicant for export to the Union were made directly to unrelated customers in the Union or Thailand. The export price is therefore established on the basis of prices paid or payable, in accordance with Article 2(8) of the basic Regulation.

(26)

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

(27)

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

(28)

Adjustments for differences in transport costs, insurance costs, handling and loading costs, packaging, commissions, credit costs and bank charges were granted when applicable and duly justified.

(29)

The applicant claimed an allowance under Article 2(10)(d) of the basic Regulation for a difference in brand value when sold under own brand on the domestic market and when sold under own brand on the Union market. Allegedly, the brand value of the applicant’s own brand is higher on the Thai market than on the Union market. To justify its claim the applicant made reference to the adjustment made in the original investigation and in the expiry review.

(30)

However, the applicant’s situation in this interim review differs from the situation of other exporting producers for which the adjustment was granted in the original investigation and the expiry review. The adjustment made in the original investigation and in the expiry review specifically refers to exporting producers whose sales on the domestic market are carrying their own brand whereas sales to the Union are sold under retailer’s brand. In this interim review, the applicant’s sales on both the domestic market and the Union market carry its own brand. Moreover, the adjustments made in the original investigation and the expiry review were made to the profit margin when constructing the normal value in accordance with Article 2(6) of the basic Regulation. However, in this interim review, the normal value is based on applicant’s actual domestic prices.

(31)

Concerning the alleged lack of brand value when selling to the Union market, the importer of the product concerned carrying the applicant’s brand is specialised in imports of branded food products, in particular from Asia. The applicant failed to clarify or provide evidence why sales to that particular importer would carry a lower value than the brand value on the applicant’s domestic market. Consequently, the Commission concluded that the applicant has not demonstrated that the alleged difference in brand value has an impact on prices or price comparability.

(32)

The applicant also claimed the same adjustment under Article 2(10)(k) of the basic Regulation. However, since the applicant has not demonstrated that the alleged difference has an impact on prices or price comparability, the allowance could not be accepted under this provision either.

(33)

The claim for an allowance under Article 2(10)(d) and (k) is therefore rejected.

(34)

With reference to Article 2(10)(b) of the basic Regulation, the applicant also claimed an allowance for a government-paid export tax rebate. An amount is paid to the applicant by the government when the product concerned is sold for export, including to the Union market.

(35)

The applicant could demonstrate that an amount equivalent to less than 0,5 % of the invoice value is paid to the applicant for exports to the Union market. However, in accordance with Article 2(10)(b) of the basic Regulation, an adjustment is to be made to the normal value if the conditions set in that Article are met, and not to the export price as claimed by the applicant. Furthermore, the investigation showed that no direct link could be established between the payment received by the applicant in respect of the product concerned when exported to the Union and import charges for the raw materials physically incorporated therein.

(36)

The applicant also claimed the same adjustment under Article 2(10)(k). However, since it failed to demonstrate any link between the export tax rebate and the pricing of the exported product concerned, the claim could not be accepted.

(37)

The claim for an allowance for export tax rebate under Article 2(10)(b) and (k) is therefore rejected.

(38)

The weighted average normal value of each type of the product concerned exported to the Union was compared with the weighted average export price of the corresponding type of the product concerned, as provided for in Article 2(11) and (12) of the basic Regulation.

(39)

On this basis, the weighted average dumping margin expressed as a percentage of the CIF Union frontier price, duty unpaid, was found to be 3,6 %.

(40)

In accordance with Article 11(3) of the basic Regulation, the Commission examined whether the circumstances on the basis of which the current dumping margin was based have changed and whether that change was of a lasting nature.

(41)

In its request for a review, the applicant had referred to changes in the product range it commercialises which would have a direct impact on the cost of production thereof. The investigation has confirmed that, due to a corporate restructuring, the applicant no longer produces and sells certain other products as compared to the original investigation period, and that this change has had an impact on the cost of production for the product concerned.

(42)

AETMD has commented that the restructuring carried out by the applicant might not be of a lasting nature, as it could easily be reversed.

(43)

It is indeed possible that the management of the applicant, if it so wishes, would be in a position to reverse the restructuring. However, there is no evidence suggesting that the applicant’s decision to restructure and to streamline the commercialisation of the group’s products between the group’s companies would not be of a lasting nature. In addition, the restructuring already took place by 2009, which indicates that the new corporate structure is of a lasting nature.

(44)

Following disclosure, AETMD reiterated its claim that the change on the basis of which the review was initiated could not be considered as of a lasting nature. More specifically, it questioned the impact on the cost of production due to the internal reorganisation within the group, claiming that costs within the group can simply be reallocated in order to lower the normal value. For this reason, the new cost of production could not be considered as being of a lasting nature. AETMD also noted that the subsidiary responsible for production and sales of fresh products shares the same address as the applicant. AETMD claimed that this is another indication that the reorganisation is not profound and lasting.

(45)

In response to AETMD’s claims set out in recital 44, the applicant stressed that the reorganisation also entailed an improved cost accounting system whereby bottlenecks were identified and resolved in order to optimise production and to reduce manufacturing costs. The applicant also stressed that any reversal of the 2009 reorganisation at this stage would be a very complex process as the mother-company to the applicant, Agripure Holding PLC, is listed on the Thai Stock Exchange.

(46)

The risk for a potential reversal of the applicant’s reorganisation has already been addressed in recital 43.

(47)

Moreover, for the purpose of verifying the accuracy of the claims in the request for the initiation of this review, the Commission made a comparison of the cost of production for the product types exported to the Union during the original investigation (i.e. before the applicant’s reorganisation in 2009) and during the RIP. That comparison confirmed that the manufacturing costs per unit have changed to a significant degree. The change in manufacturing costs per unit identified goes beyond a simple reallocation of costs and is due to a real decrease in indirect costs of production such as manufacturing overheads and labour costs.

(48)

As to the question of the applicant and its subsidiary sharing the same administrative address, this is a common business practice. Moreover, during the verification visit to the applicant’s premises, the Commission noted that the production lines and storage of finished goods within the premises were dedicated to sweetcorn production; there was no visible trace of the production and storage of the fresh products sold by the subsidiary.

(49)

Having regard to the arguments of AETMD and of the applicant, and having identified a de facto decrease in the cost of manufacturing per unit between the original investigation and the RIP, the argument put forward by AETMD has to be rejected.

(50)

AETMD has also submitted that the applicant planned to increase its production capacity during 2013 by some 40 %. According to AETMD, this fact would go against the applicant’s claim that the new, revised cost of production (which followed the restructuring) would be of a lasting nature.

(51)

The investigation indeed confirmed that the applicant is in the process of increasing its production capacity. The impact of the increased capacity has been one of the factors on the basis of which it was concluded in the expiry review that there was a risk for continuation of dumping (6).

(52)

Following disclosure, AETMD reiterated the claim that the investment into new production capacity will necessarily have an effect on the cost of production and therefore, the prevailing cost of production against which the domestic prices were compared in this review (see recital 24) is not of a lasting nature. In particular, AETMD made a calculation based on available sources on the basis of which it concluded that the total costs would increase due to increased depreciation by some 10 % as compared to the current costs.

(53)

The applicant did not contradict AETMD’s claim concerning increased depreciation costs per se, but stressed that these increased costs of depreciation are to be offset by increases in total revenues (through increased sales) and by decreases in other costs as a result of increased automation.

(54)

As mentioned in recital 51, the applicant is indeed in the process of investing in new production facilities. Investments in new facilities may entail increases of costs for depreciation. On the other hand, and as the applicant pointed out in response to AETMD’s comment, new production facilities may also entail changes (as compared to existing production lines) such as the level of automation. These changes should have a direct decreasing effect on the labour and energy costs and could offset the increases for the cost of depreciation.

(55)

On balance, it is concluded that the overall impact on the cost of production per unit produced cannot be measured until the new installations have been inaugurated and any additional costs reflected in the accounts.

(56)

Nevertheless, and having regard to the objective of the investment (increased efficiency and competitiveness, to reduce manufacturing costs per unit), it is expected that at least in the medium to long term there will be no significant increase in the cost of production per unit. In such circumstances it is expected that the normal value will still be based on domestic prices as in this review. The argument brought forward by AETMD must therefore be rejected.

(57)

Following disclosure, AETMD also questioned the lasting nature of the new dumping margin. It argued that the basis of the export prices used for the calculation of the dumping margin were not representative. More specifically, it argued that:

(58)

Due to the fact that the quantities exported to the Union were not significant, the Commission itself ascertained that the applicant’s prices paid or payable for exports to the Union were representative by comparing them with the applicant’s prices paid or payable for exports to other third countries. On this basis, it was concluded that the prices charged to customers in the Union were consistent with those charged to customers in other export markets.

(59)

The existence of different market segments, the own-brand and the retailers’ brand, have been acknowledged during the course of earlier investigations (8). It constitutes one important part of the definition of different product types within the scope of the product concerned. On this basis, exports of own-brand products have been compared with domestic sales of own-brand products and export sales of retailers’ brand have been compared with domestic sales of retailers’ brand.

(60)

The claim by AETMD that future exports will mainly be constituted by retailers’ brand is speculative, not supported by evidence and as such is insufficient to put into question the representativity of the exports of own-brand products during the RIP. The claim by AETMD is therefore rejected.

(61)

AETMD also claimed that the decrease of the duty to a lower level could lead to the risk for circumvention of the measures.

(62)

It is recalled that the duties in force are already differentiated between the Thai exporting producers. Thus, the risk for circumvention (i.e. using the TARIC additional code with lower duties) has been present since the introduction of the original measures. The lower duty for one of these exporting producers does not per se increase the risk of circumvention from Thailand as a whole.

(63)

Moreover, should information become available suggesting that the duties are undermined by way of circumvention, an investigation can be initiated as appropriate provided that conditions set in Article 13 of the basic Regulation are met.

(64)

AETMD also stated that the applicant may have artificially increased the export prices to the Union by way of cross-compensation with parallel sales of other products at artificially low prices.

(65)

As indicated in recital 58, export prices to the Union of the product concerned were in line with those to third countries. Thus, there are no indications that export prices to the Union were artificially high during the RIP, and the argument is therefore rejected.

(66)

In light of the results of the investigation, the Commission considers it appropriate to amend the anti-dumping duty applicable to imports of the product concerned from River Kwai International Food Industry Co., Ltd.

(67)

Moreover, and upon request from the applicant, its address in Thailand is also changed.

(68)

Interested parties were informed of the essential facts and considerations on the basis of which it was intended to recommend an amendment to Implementing Regulation (EU) No 875/2013.

(69)

Following disclosure, the Thai government argued that the average duty rate for cooperating non-sampled exporters should also be revised in order to take account of the findings of this partial interim review. It should be noted that this claim goes beyond the limited scope of this review which aims only at adjusting the level of the existing anti-dumping duty rate for the applicant. Any request to amend the level of the anti-dumping duty rates following an alleged change in circumstances should be presented pursuant to Article 11(3) of the basic Regulation. Therefore, this claim has to be rejected,

27.3.2014   

EN

Official Journal of the European Union

L 91/7

(1)

Pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012, Spain’s application to register the name ‘Almendra de Mallorca’/‘Almendra Mallorquina’/‘Ametlla de Mallorca’/‘Ametlla Mallorquina’ was published in the Official Journal of the European Union  (2).

(2)

As no statement of opposition under Article 51 of Regulation (EU) No 1151/2012 has been received by the Commission, the name ‘Almendra de Mallorca’/‘Almendra Mallorquina’/‘Ametlla de Mallorca’/‘Ametlla Mallorquina’ should therefore be entered in the register,

27.3.2014   

EN

Official Journal of the European Union

L 91/9

(1)

Pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012, Spain’s application to register the name ‘Aceite de la Comunitat Valenciana’ was published in the Official Journal of the European Union  (2).

(2)

As no statement of opposition under Article 51 of Regulation (EU) No 1151/2012 has been received by the Commission, the name ‘Aceite de la Comunitat Valenciana’ should therefore be entered in the register,

27.3.2014   

EN

Official Journal of the European Union

L 91/10

(1)

In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation.

(2)

Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific provisions of the Union, with a view to the application of tariff and other measures relating to trade in goods.

(3)

Pursuant to those general rules, the goods described in column (1) of the table set out in the Annex should be classified under the CN code indicated in column (2), by virtue of the reasons set out in column (3) of that table.

(4)

It is appropriate to provide that binding tariff information issued in respect of the goods concerned by this Regulation which does not conform to this Regulation may, for a certain period, continue to be invoked by the holder in accordance with Article 12(6) of Council Regulation (EEC) No 2913/92 (2). That period should be set at three months.

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,

27.3.2014   

EN

Official Journal of the European Union

L 91/12

(1)

In order to ensure uniform application of the Combined Nomenclature annexed to Regulation (EEC) No 2658/87, it is necessary to adopt measures concerning the classification of the goods referred to in the Annex to this Regulation.

(2)

Regulation (EEC) No 2658/87 has laid down the general rules for the interpretation of the Combined Nomenclature. Those rules apply also to any other nomenclature which is wholly or partly based on it or which adds any additional subdivision to it and which is established by specific provisions of the Union, with a view to the application of tariff and other measures relating to trade in goods.

(3)

Pursuant to those general rules, the goods described in column (1) of the table set out in the Annex should be classified under the CN codes indicated in column (2), by virtue of the reasons set out in column (3) of that table.

(4)

It is appropriate to provide that binding tariff information issued in respect of the goods concerned by this Regulation which does not conform to this Regulation may, for a certain period, continue to be invoked by the holder in accordance with Article 12(6) of Council Regulation (EEC) No 2913/92 (2). That period should be set at three months.

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,

27.3.2014   

EN

Official Journal of the European Union

L 91/15

(1)

The urgent completion of a fully functioning and interconnected internal energy market which contributes to ensuring the supply of affordable and sustainable energy to the Union’s economy is crucial to the objective of increasing competitiveness and ensuring that all consumers can purchase energy at the keenest prices.

(2)

In order to move towards greater market integration, it is important that rules on gas balancing of transmission networks facilitate gas trading across balancing zones thus contributing towards the development of market liquidity. This Regulation therefore sets out harmonized Union-wide rules on balancing which have the objective to give network users the certainty that they can manage their balance positions in different balancing zones throughout the Union in an economically efficient and non-discriminative manner.

(3)

This Regulation supports the development of a competitive short term wholesale gas market in the European Union that enables the provision of gas flexibility, from whatever source, to offer it for purchase and sale via market mechanisms so that network users can balance their balancing portfolios efficiently or the transmission system operator can use the gas flexibility when balancing the transmission network.

(4)

Regulation (EC) No 715/2009 sets non-discriminatory rules for access conditions to the natural gas transmission networks with a view to ensuring the proper functioning of the internal market in gas. Market-based balancing rules financially incentivise network users to balance their balancing portfolios via cost-reflective imbalance charges.

(5)

Network users are to bear the responsibility of balancing their inputs against their off-takes, with the balancing rules designed to promote a short term wholesale gas market, with trading platforms established to better facilitate gas trade between network users and the transmission system operator. The transmission system operators carry out any residual balancing of the transmission networks that might be necessary. In doing so, the transmission system operators should follow the merit order. The merit order is constructed so that transmission system operators will procure gas taking account of both economical and operational considerations, using products that can be delivered from the widest range of sources, including products sourced from LNG and storage facilities. The transmission system operators should aim to maximise the amount of their gas balancing needs through the purchase and sale of short term standardised products on the short term wholesale gas market.

(6)

In order to enable network users to balance their balancing portfolios, this Regulation also sets out minimum requirements for information provision to implement a market-based balancing regime. The information flows provided under this Regulation therefore aim to support the daily balancing regime and seek to be a set of information to support the network user in managing its risks and opportunities in a cost efficient way.

(7)

In addition to the protection of commercially sensitive information, under this Regulation the transmission system operators should preserve the confidentiality of information and data submitted to them for the purpose of implementation of this Regulation and should not disclose to third parties any of this information and data or part of it except and to the extent legally entitled to.

(8)

This Regulation has been adopted on the basis of Regulation (EC) No 715/2009 which it supplements and of which it forms an integral part. References to Regulation (EC) No 715/2009 in other legal acts shall be understood as also referring to this Regulation. This Regulation does apply to non-exempted capacities in major new infrastructures which have received an exemption from Article 32 of Directive 2009/73/EC of the European Parliament and of the Council (2) or from the former Article 18 of Directive 2003/55/EC of the European Parliament and of the Council (3) to the extent the application of this Regulation does not undermine such an exemption. This Regulation shall be applied taking into account the specific nature of interconnectors.

(9)

This Regulation was established according to the procedure as set out in Article 6 of Regulation (EC) No 715/2009. It further harmonises the balancing rules laid down in Article 21 Regulation (EC) No 715/2009 in order to facilitate gas trade.

(10)

This Regulation includes provisions that apply to distribution system operators and that aim to harmonise their roles only where and to the extent necessary for the due implementation of these provisions.

(11)

National regulatory authorities and transmission system operators should have regard to best practices and endeavours to harmonise processes for the implementation of this Regulation. Acting in accordance with Article 7 of Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (4), the Agency and the national regulatory authorities should ensure that balancing rules are implemented across the Union in the most effective way.

(12)

The measures provided for in this Regulation are in accordance with the opinion of the Committee established pursuant to Article 51 of Directive 2009/73/EC.

(1)

‘balancing zone’ means an entry-exit system to which a specific balancing regime is applicable and which may include distribution systems or part of them;

(2)

‘balancing action’ means an action undertaken by the transmission system operator to change the gas flows onto or off the transmission network, excluding those actions related to gas unaccounted for as off-taken from the system and gas used by the transmission system operator for the operation of the system;

(3)

‘neutrality charge for balancing’ means a charge amounting to the difference between the amounts received or receivable and the amounts paid or payable by the transmission system operator due to performance of its balancing activities which is payable to or recoverable from the relevant network users;

(4)

‘trading platform’ means an electronic platform provided and operated by a trading platform operator by means of which trading participants may post and accept, including the right to revise and withdraw, bids and offers for gas required to meet short term fluctuations in gas demand or supply, in accordance with the terms and conditions applicable on the trading platform and at which the transmission system operator trades for the purpose of undertaking balancing actions;

(5)

‘trading participant’ means a network user or a transmission system operator holding a contract with the trading platform operator and satisfying the conditions necessary to transact on the trading platform.

(6)

‘balancing platform’ means a trading platform where a transmission system operator is a trading participant to all trades;

(7)

‘balancing service’ means a service provided to a transmission system operator via a contract for gas required to meet short term fluctuations in gas demand or supply, which is not a short term standardised product;

(8)

‘confirmed quantity’ means the quantity of gas confirmed by a transmission system operator to be scheduled or re-scheduled to flow on gas day D;

(9)

‘daily imbalance charge’ means the amount of money a network user pays or receives in respect of a daily imbalance quantity;

(10)

‘daily metered’ means that the gas quantity is measured and collected once per gas day;

(11)

‘intraday metered’ means that the gas quantity is measured and collected a minimum of two times within the gas day;

(12)

‘non daily metered’ means that the gas quantity is measured and collected less frequently than once per gas day;

(13)

‘balancing portfolio’ means a grouping of a network user’s inputs and off-takes;

(14)

‘notification quantity’ means the quantity of gas transferred between a transmission system operator and a network user or network users or balancing portfolios, as appropriate;

(15)

‘allocation’ means the quantity of gas attributed to a network user by a transmission system operator as an input or an off-take expressed in kWh for the purpose of determining the daily imbalance quantity;

(16)

‘re-nomination cycle’ means the process carried out by the transmission system operator in order to provide a network user with the message regarding the confirmed quantities following the receipt of a re-nomination;

(17)

‘within day charge’ means a charge levied or a payment made by a transmission system operator on or to a network user as a result of a within day obligation;

(18)

‘within day obligation’ means a set of rules regarding network users’ inputs and off-takes within the gas day imposed by a transmission system operator on network users;

(19)

‘base case’ means the model for information provision where the information on non daily metered off-takes consists of a day ahead and within day forecasts;

(20)

‘variant 1’ means the model for information provision where the information on non daily metered and daily metered off-takes is based on apportionment of measured flows during the gas day;

(21)

‘variant 2’ means the model for information provision where the information on non daily metered off-takes is a day ahead forecast

(a)

the gas day for which gas is transferred;

(b)

the identification of the balancing portfolios concerned;

(c)

whether it is a disposing or an acquiring trade notification;

(d)

the notification quantity expressed in kWh/d for daily notification quantity or in kWh/h for hourly notification quantity, as required by the transmission system operator.

(a)

as an off-take to the balancing portfolio of the network user making the disposing trade notification; and

(b)

as an input to the balancing portfolio of the network user making the acquiring trade notification.

(a)

maintain the transmission network within its operational limits;

(b)

achieve an end of day linepack position in the transmission network different from the one anticipated on the basis of expected inputs and off-takes for that gas day, consistent with economic and efficient operation of the transmission network.

(a)

the transmission system operator’s own estimates of demand of gas over and within the gas day for which the balancing action(s) is (are) considered;

(b)

nomination and allocation information and measured gas flows;

(c)

gas pressures throughout the transmission network(s).

(a)

purchase and sale of short term standardised products on a trading platform; and/or

(b)

the use of balancing services.

(a)

the balancing actions shall be undertaken on a non-discriminatory basis;

(b)

the balancing actions shall have regard to any obligation upon transmission system operators to operate an economic and efficient transmission network.

(a)

one trading participant makes an acquiring trade notification and the other makes a disposing trade notification;

(b)

both trade notifications shall specify the gas quantity transferred from the trading participant who makes a disposing trade notification to the trading participant who makes an acquiring trade notification;

(c)

where an hourly notification quantity is used, it shall be applied flat to all the remaining hours of the gas day from a specified start time and shall be equal to zero for all the hours before this start time.

(a)

the transmission system operator shall determine the relevant entry and exit points or groups thereof that can be used;

(b)

all the conditions specified in paragraph 3 shall be fulfilled;

(c)

the originating trading participant shall modify the quantity of gas to be delivered to or off-taken from the transmission network at the specified entry or exit point by an amount equal to the notification quantity and provide evidence to the transmission system operator that the quantity was modified accordingly;

(a)

the conditions specified in paragraph 3(a) and (b) shall be fulfilled;

(b)

an hourly notification quantity shall be applied to the hours of the gas day from a specified start time up to a specified end time and shall be equal to zero for all the hours before the start time and zero for all the hours after the end time.

(a)

how balancing services will keep the transmission network within its operational limits;

(b)

the response time of the balancing services compared to the response times of any available short term standardised products;

(c)

the estimated cost of the procurement and use of balancing services compared to the estimated cost of use of any available short term standardised products;

(d)

the area at which the gas needs to be delivered;

(e)

the transmission system operator’s gas quality requirements;

(f)

to what extent the procurement and use of balancing services may affect the liquidity of the short term wholesale gas market.

(a)

prior to any commitment to contract for a balancing service, the transmission system operator shall publish a non-restrictive call for tender indicating the purpose, scope and related instructions to tenderers, to enable them to participate in the tender process;

(b)

the results shall be published without prejudice to the protection of commercially sensitive information and individual results shall be disclosed to each tenderer.

(a)

prioritise the use of title products where and to the extent appropriate over any other available short term standardised products.

(b)

use the other short term standardised products when the following circumstances are met:

(c)

only use balancing services where short term standardised products will not or are not likely to provide, upon assessment of the transmission system operator concerned, the response necessary to keep the transmission network within its operational limits.

(a)

provides sufficient support throughout the gas day to both the network users to trade in and the transmission system operators to undertake appropriate balancing actions through trade in the relevant short term standardised products;

(b)

provides transparent and non-discriminatory access;

(c)

provides services on an equal treatment basis;

(d)

ensures anonymous trading at least until a transaction is concluded;

(e)

provides a detailed overview of the current bids and offers to all trading participants;

(f)

ensures that all trades are duly notified to the transmission system operator.

(a)

publish the evolution of the marginal buy price and the marginal sell price after each trade without undue delay; or

(b)

provide the transmission system operator with the information where the transmission system operator elects to publish the evolution of the marginal buy price and the marginal sell price. The transmission system operator shall publish this information without undue delay.

(a)

be based on the transmission system operator’s performance via capped payments to the transmission system operator for outperformance and by the transmission system operator for underperformance, that are measured against predetermined performance targets which may include, inter alia, costs targets;

(b)

take into account the means available to the transmission system operator to control the performance;

(c)

ensure that its application accurately reflects the allocation of responsibilities between the parties involved;

(d)

be adapted to the state of development of the relevant gas market where it is to be implemented;

(e)

be subject to a regular review by the national regulatory authority in close cooperation with the transmission system operator to evaluate where and to what extent changes thereto may be needed.

(1)

interconnection point identification;

(2)

direction of the gas flow;

(3)

network user identification or, if applicable, its balancing portfolio identification;

(4)

network user’s counterparty identification or, if applicable, its balancing portfolio identification;

(5)

start and end time of the gas flow for which the nomination or re-nomination is submitted;

(6)

gas day D;

(7)

the gas quantity requested to be transported.

(a)

network users are not obliged to submit nominations;

(b)

network users may submit to transmission system operators the nominations for gas day D no later than 12:00 UTC (winter time) or 11:00 UTC (daylight saving) on gas day D-1;

(c)

the transmission system operator shall send the message regarding the processed quantities to the respective network users no later than 12:30 UTC (winter time) or 11:30 UTC (daylight saving) on gas day D-1.

(a)

a later time is requested by the network user; or

(b)

an earlier time is allowed by the transmission system operator.

(a)

financial impact on transmission system operators and network users;

(b)

impact on cross-border trade;

(c)

impact on the daily balancing regime at the interconnection point(s).

(a)

a nomination or re-nomination no later than two hours after the nomination deadline or the beginning of the re-nomination cycle in the following cases:

(b)

a re-nomination no later than two hours after the beginning of the re-nomination cycle in the following additional cases:

(a)

network users shall be entitled to submit re-nominations for the gas day;

(b)

the transmission system operator shall confirm or reject the submitted nominations and re-nominations considering the timelines referred to in Article 17.

(a)

the calculation of the daily imbalance quantity referred to in Article 21;

(b)

the derivation of the applicable price referred to in Article 22; and

(c)

any other necessary parameter.

(a)

a linepack flexibility service is offered; and/or

(b)

any arrangement is in place whereby network users provide gas, including gas in kind, to cover:

(a)

marginal sell price where the daily imbalance quantity is positive (i.e. the network user’s inputs for that gas day exceed its off-takes for that gas day); or

(b)

marginal buy price where the daily imbalance quantity is negative (i.e. the network user’s off-takes for that gas day exceed its inputs for that gas day).

(a)

a marginal sell price is the lower of:

(b)

a marginal buy price is the higher of:

(a)

incentivise network users to balance their inputs and off-takes;

(b)

be designed and applied in a non-discriminatory manner in order to:

(c)

not have a detrimental impact on cross-border trade;

(d)

not result in network users’ excessive financial exposure to daily imbalance charges.

(a)

if a network user’s daily imbalance quantity for the gas day is positive then this network user shall be deemed to have sold gas to the transmission system operator equivalent to the daily imbalance quantity and therefore shall be entitled to receive a credit in respect of daily imbalance charges from the transmission system operator; and

(b)

if a network user’s daily imbalance quantity for the gas day is negative then this network user shall be deemed to have purchased gas from the transmission system operator equivalent to the daily imbalance quantity and therefore shall be obliged to pay daily imbalance charges to the transmission system operator.

(1)

System-wide within day obligation

shall be designed to provide incentives for network users to keep the transmission network within its operational limits and shall set out the following:

(2)

Balancing portfolio within day obligation

shall be designed to incentivise network users to keep their individual position during the gas day within a pre-defined range and shall set out the following:

(3)

Entry-exit point within day obligation

shall be designed to provide incentives for network users to limit the gas flow or the gas flow variation under specific conditions at specific entry-exit points and shall set out the following:

(a)

a within day obligation and related within day charge, if any, shall not pose any undue barriers on cross-border trade and new network users entering the relevant market;

(b)

a within day obligation shall only be applied where the network users are provided with adequate information before a potential within day charge is applied regarding their inputs and/or off-takes and have reasonable means to respond to manage their exposure;

(c)

the main costs to be incurred by the network users in relation to their balancing obligations shall relate to their position at the end of the gas day;

(d)

to the extent possible, within day charges shall be reflective of the costs of the transmission system operator for the undertaking of any associated balancing actions;

(e)

a within day obligation will not result in network users being financially settled to a position of zero during the gas day;

(f)

the benefits of introducing a within day obligation in terms of economic and efficient operation of the transmission network outweigh any potential negative impacts thereof, including on liquidity of trades at the virtual trading point.

(a)

the necessity of the within day obligation, taking into account the transmission network’s characteristics and the flexibility available to the transmission system operator through purchase and sale of short term standardised products or use of balancing services in accordance with Chapter III;

(b)

the information available to enable network users to manage in a timely manner their within day positions;

(c)

the expected financial impact on network users;

(d)

the effect on new network users entering the relevant market, including any undue negative impact thereon;

(e)

the effect on cross-border trade, including the potential impact on balancing in adjacent balancing zones;

(f)

the impact on the short term wholesale gas market, including the liquidity thereof;

(g)

the non-discriminatory nature of the within day obligation.

(a)

any costs and revenues arising from daily imbalance charges and within day charges;

(b)

any costs and revenues arising from the balancing actions undertaken pursuant to Article 9, unless the national regulatory authority considers those costs and revenues as incurred inefficiently in accordance with the applicable national rules. This consideration shall be based upon an assessment which:

(c)

any other costs and revenues related to the balancing activities undertaken by the transmission system operator, unless the national regulatory authority considers these costs and revenues as incurred inefficiently in accordance with the applicable national rules.

(1)

the overall status of the transmission network in accordance with point 3.4(5) of Annex I to Regulation (EC) No 715/2009;

(2)

the transmission system operator’s balancing actions referred to in Chapter III;

(3)

the network user’s inputs and off-takes for the gas day referred to in Articles 33 to 42.

(a)

on the transmission system operator’s website or other system providing the information in electronic format;

(b)

accessible to network users free of charge;

(c)

in a user-friendly manner;

(d)

clear, quantifiable and easily accessible;

(e)

on a non-discriminatory basis;

(f)

in consistent units either in kWh or kWh/d and kWh/h;

(g)

in the official language(s) of the Member State and in English.

(a)

each update covers gas flows from the beginning of this gas day D; or

(b)

each update covers incremental gas flows after that reported in the previous update.

(a)

each update covers gas flows from the beginning of this gas day D; or

(b)

each update covers incremental gas flows after that reported in the previous update.

(a)

on gas day D-1, the transmission system operator shall provide network users with a forecast of their non daily metered off-takes for gas day D no later than 12:00 UTC (winter time) or 11:00 UTC (daylight saving);

(b)

on gas day D, the transmission system operator shall provide network users with a minimum of two updates of the forecast of their non daily metered off-takes.

(a)

access to short term standardised products on a trading platform;

(b)

accuracy of the forecast of a network users non daily off-takes as compared to the time of its provision;

(c)

time when the re-nomination period ends, as provided in Article 15(1);

(d)

time of the first update of the forecast for a network user’s non daily metered off-takes.

(a)

For the information models base case and variant 1, all gas delivered to the distribution system shall be allocated;

(b)

for the information model variant 2, the non daily metered off-takes shall equal the forecast of a network user’s non daily metered off-takes provided day ahead;

(c)

for the information model variant 1, an initial allocation and an initial daily imbalance quantity shall be considered as the final allocation and the final daily imbalance quantity.

(a)

increasing the frequency of information provision to network users;

(b)

reducing the related timelines of information provision;

(c)

improving the accuracy of the information provided.

(a)

the transmission system operator shall not need to enter into any contracts with any other infrastructure provider, such as storage system operator or LNG system operator, for the purpose of provision of a linepack flexibility service;

(b)

the revenues generated by the transmission system operator from the provision of a linepack flexibility service shall at least be equal to the costs incurred or to be incurred in providing this service;

(c)

the linepack flexibility service shall be offered on a transparent and non-discriminatory basis and can be offered using competitive mechanisms;

(d)

the transmission system operator shall not charge, either directly or indirectly, a network user for any costs incurred by the provision of a linepack flexibility service, should this network user not contract for it; and

(e)

the provision of a linepack flexibility service shall not have a detrimental impact on cross-border trade.

(a)

a description of the state of development and the liquidity of the short term wholesale gas market at the time of preparing the report, including, where available to the transmission system operator, inter alia:

(b)

the interim measures to be applied

(c)

the reasons for the application of the interim measures:

(d)

an identification of the steps that will be taken to remove the interim measures, including the criteria for making these steps and an assessment of the related timing.

(a)

to a short term wholesale gas market that has sufficient liquidity;

(b)

to gas required to meet short term fluctuations in gas demand or supply; or

(c)

to sufficient information regarding their inputs and off-takes.

(a)

with regard to network users’ daily imbalance quantity;

(b)

on a transparent and non-discriminatory basis;

(c)

only to the extent necessary and for the minimum duration required.

(a)

reflect the transmission network’s flexibility and network user’s needs;

(b)

reflect the level of risk to the network user in managing the balance of its inputs and off-takes;

(c)

not undermine the development of the short term wholesale gas market;

(d)

not result in an unduly excessive increase of the transmission system operator’s balancing actions’ costs.

(a)

exceeds the allocation for non daily metered off-take in case the daily imbalance quantity is positive;

(b)

is less than the allocation for non daily metered off-take in case the daily imbalance quantity is negative.

(a)

pursuant to the terms and conditions of the existing contract where it contains provisions permitting to reduce the gas quantity committed and/or to terminate the existing contract; or

(b)

as follows in the absence of such contractual rights:

27.3.2014   

EN

Official Journal of the European Union

L 91/36

(1)

Pursuant to the first subparagraph of Article 53(1) of Regulation (EU) No 1151/2012, the Commission has examined Italy’s application for the approval of amendments to the specification for the protected designation of origin ‘Pecorino Sardo’ registered under Commission Regulation (EC) No 1263/96 (2), as amended by Regulation (EC) No 215/2011 (3).

(2)

Since the amendments in question are not minor within the meaning of Article 53(2) of Regulation (EU) No 1151/2012, the Commission published the amendment application in the Official Journal of the European Union  (4) as required by Article 50(2)(a) of that Regulation.

(3)

As no statement of opposition under Article 51 of Regulation (EU) No 1151/2012 has been received by the Commission, the amendments to the specification should be approved,

27.3.2014   

EN

Official Journal of the European Union

L 91/38

(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,

27.3.2014   

EN

Official Journal of the European Union

L 91/40

(1)

Regulation (EU) No 472/2013 applies to Member States already in receipt of financial assistance, including those from the European Stability Mechanism (ESM), at the time of its entry into force.

(2)

Regulation (EU) No 472/2013 sets the rules for the approval of macroeconomic adjustment programme for Member States in receipt of financial assistance, which rules need to be consistent with the provisions of the Treaty Establishing the ESM.

(3)

Upon a request of 25 June 2012 by Cyprus for financial assistance from the ESM, the Council decided on 25 April 2013 by Decision 2013/236/EU (2) that Cyprus was to rigorously implement a macroeconomic adjustment programme.

(4)

On 24 April 2013 the ESM Board of Governors decided to grant, in principle, stability support to Cyprus and approved the Memorandum of Understanding on Specific Economic Policy Conditionality (hereinafter referred to as the ‘MoU’) and its signing by the Commission on behalf of the ESM.

(5)

In accordance with Article 1(2) of Implementing Decision 2013/463/EU (3), the Commission, in liaison with the European Central Bank (ECB), and, where appropriate, with the International Monetary Fund (IMF), has conducted the third review to assess the progress with the implementation of the agreed measures as well as their effectiveness and economic and social impact.

(6)

As a result, Implementing Decision 2013/463/EU should be updated in the areas of financial sector reform, fiscal policy and structural reforms, in particular with regard to (i) the design of a communication strategy by a joint Central Bank of Cyprus (CBC) and Ministry of Finance task force on the roadmap for the relaxation of the capital controls and on the implementation of the banking sector strategy; (ii) the timely reporting of banks’ estimates of the potential impact of the newly introduced and upcoming Union rules on capital requirements and non-performing loans (NPLs) on capital, profitability and coverage ratio; (iii) the establishment of a task force to assess the magnitude of registered but untitled land sales contracts, and to provide recommendations on this issue; (iv) the reform of corporate and personal insolvency procedures; (v) the review of the Civil Procedure Code and Court Rules to ensure a smooth and effective functioning of the revised foreclosure and insolvency frameworks; (vi) a revision of the primary deficit target for 2014 to 1,8 % of GDP; (vii) the implementation of a first stage of the National Health System (NHS), having first defined and adopted a full roadmap to NHS; (viii) the revision of policies on pricing and reimbursement of medical goods and services, including those related to pharmaceutical expenditure; (ix) the establishment of a Privatisation Unit; (x) the presentation of an action plan for addressing the shortcoming identified in Phase 2 of the peer review by the Organisation for Economic Cooperation and Development (OECD) Global Forum on Transparency and Exchange of Information for Tax Purposes; (xi) the development of a growth strategy based on Cyprus’ competitive advantages to help the Cypriot authorities to kick-starting the economy. The implementation of comprehensive and ambitious reforms in financial, fiscal and structural areas should safeguard the medium-term sustainability of the Cypriot public debt.

(7)

Throughout the implementation of Cyprus’ comprehensive policy package, the Commission should provide additional policy advice and technical assistance in specific areas. A Member State subject to a macroeconomic adjustment programme experiencing insufficient administrative capacity is to seek technical assistance from the Commission, which may constitute, for that purpose, groups of experts.

(8)

The Cypriot authorities should seek the view, in accordance with current national rules and practices, of social partners and civil society organisations in the preparation, implementation, monitoring and evaluation of the macroeconomic adjustment programme,

(1)

Paragraph 5 is replaced by the following:

‘5.   With a view to restoring the soundness of its financial sector, Cyprus shall continue to implement the restructuring of the banking and cooperative credit institution sectors; continue to strengthen the supervision and regulation; undertake a reform of the debt restructuring framework; and gradually lift capital restrictions in line with its roadmap, while safeguarding financial stability. The programme shall provide for the following measures and outcomes:

(2)

Paragraph 7 is replaced by the following:

‘7.   During 2014, the Cypriot authorities shall fully implement the permanent measures included in the 2014 Budget Law which shall amount to at least EUR 270 million. They shall also ensure the full implementation of the consolidation measures adopted since December 2012.’

(3)

The following paragraph is inserted:

‘7a.   For the fiscal policy in 2015-16, the Cypriot authorities shall pursue a general government balance in line with the adjustment path respecting the excessive deficit procedure (EDP) recommendation.’

(4)

Paragraph 8 is amended as follows:

(5)

Paragraphs 10 to 13 are replaced by the following:

‘10.   Cyprus shall ensure the implementation of the agreed measures to address the identified shortcomings in its activation policies. Cyprus shall take swift action to create opportunities for young people and improve their employability prospects, in line with the objectives of the Council Recommendation on establishing a Youth Guarantee (4). The design, management and implementation of the measures targeted to youth shall be well integrated within the broader system of activation policies and be coherent with the reform of the social welfare system and the agreed budgetary targets.

11.   Cyprus shall stand ready to adopt any further necessary amendments to sector-specific legislation required in order to fully implement Directive 2006/123/EC of the European Parliament and of the Council (5). The Cypriot authorities shall further improve the functioning of the regulated professions. The competition framework shall be improved by enhancing the functioning of the competent competition authority and by reinforcing the independence and powers of the National Regulatory Authorities.

12.   Cyprus shall ensure a reduction in the title deed issuance backlog, take action to accelerate the swift clearing of encumbrances on title deeds to be transferred to purchases of immovable property, and define deadlines for the issuance of building certificates and title deeds.

13.   Cyprus shall amend the rules on the forced sale of mortgaged property and shall allow for private auctions within the shortest feasible timespan. The pace of court case handling shall be improved and court backlogs shall be eliminated by the end of the programme. Cyprus shall take initiatives to strengthen the competitiveness of its tourism sector, by implementing the concrete action plan leading to the attainment of the quantified targets identified, inter alia, in the revised Tourism Strategy for 2011-15. Cyprus shall implement an aero-political strategy leading to the adaptation of Cyprus’ external aviation policy, taking into account the EU external aviation and the EU aviation agreements, while ensuring sufficient air connectivity.

(6)

In paragraph 14, point (b) is replaced by the following:

(7)

Paragraph 15 is replaced by the following:

‘15.   Cyprus shall submit an updated request to the Commission for technical assistance during the programme period. The request shall identify and specify the areas of technical assistance or advisory services which the Cypriot authorities consider essential for the implementation of its macroeconomic adjustment programme.’.

(8)

The following paragraph is added:

‘16.   When developing a comprehensive and coherent growth strategy that would allow the kick-starting of the economy, Cyprus shall integrate it into its national institutional framework leveraging on the on-going public administration, public financial management reform, other commitments in Cyprus’ macroeconomic adjustment programme and relevant Union initiatives taking into account the Partnership agreement for the implementation of the European Structural and Investments Funds.’.

27.3.2014   

EN

Official Journal of the European Union

L 91/43

(1)

Regulation (EC) No 1005/2008 (the ‘IUU Regulation’) establishes a Union system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing.

(2)

Chapter VI of the IUU Regulation lays down the procedure with respect to the identification of non-cooperating third countries, démarches in respect of countries identified as non-cooperating third countries, the establishment of a list of non-cooperating countries, removal from the list of non-cooperating countries, publicity of the list of non-cooperating countries and any emergency measures.

(3)

In accordance with Article 32 of the IUU Regulation, the Commission notified by a Decision of 15 November 2012 (2) (‘Decision of 15 November 2012’) eight third countries of the possibility of their being identified as third countries that the Commission considers as non-cooperating third countries.

(4)

In the Decision of 15 November 2012, the Commission included the information concerning the essential facts and considerations underlying such identification.

(5)

Also on 15 November 2012, the Commission notified the eight third countries by separate letters of the fact that it was considering the possibility of identifying them as non-cooperating third countries.

(6)

The Commission highlighted, in thoese letters, that in order to avoid being identified and proposed for formal listing as a non-cooperating third country as provided for in Articles 31 and 33 of the IUU Regulation, the third countries concerned were invited to establish, in close cooperation with the Commission, an action plan to rectify the shortcomings identified in the Decision of 15 November 2012.

(7)

As a consequence, the Commission invited the eight third countries concerned: (i) to take all necessary measures to implement the actions contained in the action plans suggested by the Commission; (ii) to assess the implementation of the actions contained in the action plans suggested by the Commission; and (iii) to send every six months detailed reports to the Commission assessing the implementation of each action as regards, inter alia, their individual and/or overall effectiveness in ensuring a fully compliant fisheries control system.

(8)

The eight third countries concerned were given the opportunity to respond in writing on issues explicitly indicated in the Decision of 15 November 2012 as well as on other relevant information, allowing them to submit evidence in order to refute or complete the facts invoked in the Decision of 15 November 2012 or to adopt, as appropriate, a plan of action to improve and measures taken to rectify the situation. The eight countries were assured of their right to ask for, or to provide, additional information.

(9)

On 15 November 2012, the Commission opened a process of dialogue with the eight third countries and highlighted that it considered a period of six months as being in principle sufficient for reaching an agreement on the matter in question.

(10)

The Commission continued to seek and verify all information it deemed necessary. The oral and written comments submitted by the eight countries following the Decision of 15 November 2012 were considered and taken into account. The eight countries were kept informed, either orally or in writing, of the Commission’s deliberations.

(11)

By an Implementing Decision of 26 November 2013 (3) (‘Implementing Decision of 26 November 2013’), the Commission identified Belize, the Kingdom of Cambodia and the Republic of Guinea as non-cooperating third countries in fighting IUU fishing. In accordance with the IUU Regulation, the Commission provided the reasons why it considered that those three countries failed to discharge their duties under international law as flag, port, coastal or market States to take action, to prevent, deter and eliminate IUU fishing.

(12)

A Council Implementing Decision placing Belize, the Kingdom of Cambodia and the Republic of Guinea on the list of non-cooperating third countries in fighting IUU fishing should therefore be taken in the context of the implementation of the IUU Regulation as a result of investigation and dialogue procedures which were carried out in line with the substantive and procedural requirements laid out in the IUU Regulation. Those investigation and dialogue procedures, including the correspondence exchanged and the meetings held, as well as the Decision of 15 November 2012 and the Implementing Decision of 26 November 2013 are at the basis of this Decision and the reasons underlying are the same. This Decision placing Belize, the Kingdom of Cambodia and the Republic of Guinea on the list of non-cooperating third countries in fighting IUU fishing should entail the consequences stated in Article 38 of the IUU Regulation.

(13)

Pursuant to Article 34(1) of the IUU Regulation the Council, acting by qualified majority on a proposal from the Commission, shall remove a third country from the list of non-cooperating third countries if the third country concerned demonstrates that the situation that warranted its listing has been rectified. A removal decision shall also take into consideration whether the identified third countries concerned have taken concrete measures capable of achieving a lasting improvement of the situation.

(14)

On 15 November 2012, the Commission notified Belize pursuant to the Article 32 of the IUU Regulation that it considered the possibility of identifying Belize as a non-cooperating third country and invited Belize to establish in close cooperation with its services an action plan to rectify the shortcomings identified in the Decision of 15 November 2012. During the period from December 2012 to August 2013, Belize made written submissions making its views known and met the Commission to discuss the matter. The Commission provided to Belize relevant information in writing. The Commission continued to seek and verify all information it deemed necessary. The oral and written comments submitted by Belize following the Decision of 15 November 2012 were considered and taken into account, while Belize was kept informed either orally or in writing of the Commission’s deliberations. The Commission took the view that the areas of concern and shortcomings as described in the Decision of 15 November 2012 had not been addressed sufficiently by Belize. Moreover, the Commission concluded that the measures suggested in a plan of action presented by Belize had not been fully implemented.

(15)

In the Decision of 15 November 2012, the Commission analysed the duties of Belize and evaluated its compliance with its international obligations as flag, port, coastal or market State. For the purpose of that review, the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation. The Commission reviewed the compliance of Belize in line with the findings in the Decision of 15 November 2012, and having regard to relevant information provided thereon by Belize, the suggested plan of action, as well to the measures taken to rectify the situation.

(16)

The main shortcomings identified by the Commission in the suggested plan of action were related to several failures to implement international law obligations, linked in particular to the failure to adopt an adequate legal framework, the lack of adequate and efficient monitoring, the lack of a control and inspection scheme, the lack of a deterrent sanctioning system, and to improper implementation of the catch certification scheme. Other identified shortcomings relate, more generally, to compliance with international obligations, including Regional Fisheries Management Organisations’ (RFMOs) recommendations and resolutions, and the conditions for the registration of vessels according to international law. A lack of compliance with recommendations and resolutions from relevant bodies such as the International Plan of Action against Illegal, Unreported and Unregulated fishing of the United Nations (IPOA-UN) was also identified. However, the lack of compliance with non-binding recommendations and resolutions was considered only as supporting evidence and not as a basis for the identification.

(17)

In the Implementing Decision of 26 November 2013, the Commission identified Belize as a non-cooperating third country pursuant to the IUU Regulation.

(18)

With respect to the possible constraints upon Belize as a developing country, it is noted that the specific development status and overall performance of Belize with respect to fisheries are not impaired by its general level of development.

(19)

Having regard to the Decision of 15 November 2012 and the Implementing Decision of 26 November 2013, and to the dialogue process with Belize entertained by the Commission and the outcome thereof, it can be concluded that the actions undertaken by Belize in light of its duties as flag State are insufficient to comply with the Articles 91, 94, 117 118 of the United Nations Convention on the Law of the Sea (UNCLOS), Articles 18, 19, 20 of the United Nations Fish Stocks Agreement (UNSFA), and with the Article II(8) of FAO Compliance Agreement.

(20)

Thus, Belize has failed to discharge its duties under international law as flag State to take action to prevent, deter and eliminate IUU fishing and it should therefore be included in the Union list of non-cooperating third countries.

(21)

On 15 November 2012, the Commission notified the Kingdom of Cambodia (Cambodia) pursuant to the Article 32 of the IUU Regulation that it considered the possibility of identifying Cambodia as a non-cooperating third country and invited Cambodia to establish in close cooperation with its services an action plan to rectify the shortcomings identified in the Decision of 15 November 2012. During the period from December 2012 to June 2013, Cambodia made written submissions making its views known and met the Commission to discuss the matter. The Commission provided to Cambodia relevant information in writing. The Commission continued to seek and verify all information it deemed necessary. The oral and written comments submitted by Cambodia following the Decision of 15 November 2012 were considered and taken into account, while Cambodia was kept informed either orally or in writing of the Commission’s deliberations. The Commission took the view that the areas of concern and shortcomings as described in the Decision of 15 November 2012 had not been addressed sufficiently by Cambodia. Moreover, the Commission concluded that the measures suggested in a plan of action presented by Cambodia had not been fully implemented.

(22)

In the Decision of 15 November 2012, the Commission analysed the duties of Cambodia and evaluated its compliance with its international obligations as flag, port, coastal or market State. For the purpose of that review, the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation. The Commission reviewed the compliance of Cambodia in line with the findings in the Decision of 15 November 2012, and having regard to the suggested plan of action, as further elaborated with relevant information provided by Cambodia.

(23)

The main shortcomings identified by the Commission in the suggested plan of action were related to several failures to implement international law obligations, linked in particular to the failure to adopt an adequate legal framework, the lack of adequate and efficient monitoring, the lack of a control and inspection scheme, and to the lack of a deterrent sanctioning system. Other identified shortcomings relate, more generally, to compliance with international obligations and the conditions for the registration of vessels according to international law. A lack of compliance with recommendations and resolutions from relevant bodies such as the IPOA –UN was also identified. However, the lack of compliance with non-binding recommendations and resolutions was considered only as supporting evidence and not as a basis for the identification.

(24)

In the Implementing Decision 26 November 2013, the Commission identified Cambodia as a non-cooperating third country pursuant to the IUU Regulation.

(25)

With respect to the possible constraints upon Cambodia as a developing country, it is noted that the specific development status and overall performance of Cambodia with respect to fisheries are not impaired by its general level of development.

(26)

The actions undertaken by Cambodia in light of its duties as flag State are insufficient to comply with the Articles 91 and 94 of the UNCLOS. It is recalled that it is immaterial whether Cambodia has actually ratified the UNCLOS, since its provisions on navigation on the High Seas (Articles 86 to 115 of the UNCLOS) have been recognised as customary international law. Moreover, those provisions codify pre-existing rules of customary international law and take over almost literally the wording of the Convention on the High Seas and the Convention on the Territorial Sea and the Contiguous Zone, both of which have been acceded to and ratified by Cambodia.

(27)

Having regard to the Decision of 15 November 2012 and the Implementing Decision of 26 November 2013, and to the dialogue process with Cambodia entertained by the Commission and the outcome thereof, it can be concluded that the actions undertaken by Cambodia in light of its duties as flag State are insufficient to comply with the Articles 91 and 94 of the UNCLOS.

(28)

Thus, Cambodia has failed to discharge its duties under international law as flag State to take action to prevent, deter and eliminate IUU fishing and it should therefore be included in the Union list of non-cooperating third countries.

(29)

On 15 November 2012, the Commission notified the Republic of Guinea (Guinea) pursuant to the Article 32 of the IUU Regulation that it considered the possibility of identifying Guinea as a non-cooperating third country and invited Guinea to establish in close cooperation with its services an action plan to rectify the shortcomings identified in the Decision of 15 November 2012. During the period from December 2012 to July 2013, Guinea made written submissions making its views known and met the Commission to discuss the matter. The Commission provided to Guinea relevant information in writing. The Commission continued to seek and verify all information it deemed necessary. The oral and written comments submitted by Guinea following the Decision of 15 November 2012 were considered and taken into account, while Guinea was kept informed either orally or in writing of the Commission’s deliberations. The Commission took the view that the areas of concern and shortcomings as described in the Decision of 15 November 2012 had not been addressed sufficiently by Guinea. Moreover, the Commission concluded that the measures suggested in a plan of action presented by Guinea had not been fully implemented.

(30)

In the Decision of 15 November 2012, the Commission analysed the duties of Guinea and evaluated its compliance with its international obligations as flag, port, coastal or market State. For the purpose of that review, the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation. The Commission reviewed the compliance of Guinea in line with the findings in the Decision of 15 November 2012, and having regard to the suggested plan of action, as further elaborated with relevant information provided by Guinea.

(31)

The main shortcomings identified by the Commission in the suggested plan of action were related to reforms still dues in order to ensure a sufficiently adequate and efficient monitoring of its fishing fleet, an effective implementation of national law and regulations on fisheries, enforcement of the rules by pursuing and sanctioning the IUU fishing activities detected, reinforcement of the means for inspection and surveillance, deterrent sanctioning system, fisheries policy consistent with administrative capacity in terms of control and surveillance. Other identified shortcomings relate, more generally, to compliance with international obligations including RFMOs recommendations and resolutions and the conditions for the registration of vessels according to international law. A lack of compliance with recommendations and resolutions from relevant bodies such as the IPOA – UN was also identified. However, the lack of compliance with non-binding recommendations and resolutions was considered only as supporting evidence and not as a basis for the identification.

(32)

In the Implementing Decision of 26 November 2013 the Commission identified Guinea as non-cooperating third country pursuant to the IUU Regulation.

(33)

With respect to the possible constraints upon Guinea as a developing country, it is noted that the specific development status of Guinea may be impaired by its level of development. However, account taken of the nature of the established shortcomings of Guinea, the assistance provided by the Union and the Member States, and the actions taken to rectify the situation, the development level of that country cannot explain the overall performance of Guinea as flag or coastal State with respect to fisheries and the insufficiency of its action to prevent, deter and eliminate IUU fishing.

(34)

Having regard to the Decision of 15 November 2012 and the Implementing Decision of 26 November 2013, and to the dialogue process with Guinea entertained by the Commission and the outcome thereof, it can be concluded that the actions undertaken by Guinea in light of its duties as flag and coastal State are insufficient to comply with the Articles 61, 62, 94, 117 and 118 of the UNCLOS and Articles 18, 19 and 20 of the UNFSA.

(35)

Thus, Guinea has failed to discharge its duties under international law as flag and coastal State to take action, prevent, deter and eliminate IUU fishing and it should therefore be included in the Union list of non-cooperating third countries.

(36)

In view of the conclusions reached above with regard to Belize, Cambodia and Guinea, those countries should be included in a list of non-cooperating third countries to be established in accordance with Article 33 of the IUU Regulation.

(37)

Actions in respect of Belize, Cambodia and Guinea in the form of measures that should be applied are listed in Article 38 of the IUU Regulation. The prohibition of importation covers all stocks and species, as defined in Article 2(8) of the IUU Regulation, since the identification is not justified by the lack of appropriate measures adopted in relation to IUU fishing affecting a given stock or species. In line with the definition laid down in Article 2(11) of the IUU Regulation,’ importation’ means the introduction of fishery products into the territory of the Union, including for transhipment purposes at ports in its territory.

(38)

It is noted that IUU fishing, inter alia, depletes fish stocks, destroys marine habitats, undermines the conservation and sustainable use of marine resources, distorts competition, endangers food security, puts honest fishermen at an unfair disadvantage, and weakens coastal communities. In view of the magnitude of the problems related to IUU fishing, it is necessary for the Union to implement expeditiously the actions in respect to Belize, Cambodia and Guinea as non-cooperating countries. In the light of the foregoing, this Decision should enter into force on the day following that of its publication in the Official Journal of the European Union.

(39)

If Belize, Cambodia or Guinea demonstrates that the situation that warranted its listing has been rectified, the Council, acting by qualified majority on a proposal from the Commission, removes that country from the list of non-cooperating third countries in line with Article 34(1) of the IUU Regulation. Any removal decision shall also take into consideration whether Belize, Cambodia or Guinea has taken concrete measures capable of achieving a lasting improvement of the situation.

27.3.2014   

EN

Official Journal of the European Union

L 91/48

(1)

On 13 September 2010 the Council adopted Decision 2010/570/EU, Euratom appointing the members of the European Economic and Social Committee for the period from 21 September 2010 to 20 September 2015 (1).

(2)

A member’s seat on the European Economic and Social Committee has become vacant following the end of the term of office of Ms Rikke EDSJÖ,