title: Decision No 633/2009/EC of the European Parliament and of the Council of 13 July 2009 granting a Community guarantee to the European Investment Bank against losses under loans and loan guarantees for projects outside the Community

text:
               22.7.2009

               EN

               Official Journal of the European Union

               L 190/1

      DECISION No 633/2009/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

   of 13 July 2009
   granting a Community guarantee to the European Investment Bank against losses under loans and loan guarantees for projects outside the Community
   THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Articles 179 and 181a thereof,
   Having regard to the proposal from the Commission,
   Acting in accordance with the procedure laid down in Article 251 of the Treaty (1),
   Whereas:

               (1)

               Since 1963, the European Investment Bank (EIB) has undertaken operations outside the Community in support of the Community’s external policies.

               (2)

               Most of those operations have been carried out upon the request of the Council and have benefited from a Community budgetary guarantee administered by the Commission. Most recently, the Community guarantee was established for the period 2000-2007 by Council Decision 2008/580/EC of 23 June 2008 granting a Community guarantee against losses under loans for projects outside the Community (South-eastern neighbours, Mediterranean countries, Latin America and Asia and the Republic of South Africa) (2) and by Council Decisions 2001/777/EC of 6 November 2001 granting a Community guarantee to the European Investment Bank against losses under a special lending action for selected environmental projects in the Baltic Sea basin of Russia under the Northern Dimension (3) and 2005/48/EC of 22 December 2004 granting a Community guarantee to the European Investment Bank against losses under loans for certain types of projects in Russia, Ukraine, Moldova and Belarus (4) for regionally specific lending actions.

               (3)

               With a view to supporting the Community’s external action without affecting the EIB’s credit standing, the EIB should be offered a Community budgetary guarantee for operations carried out outside the Community. The EIB should be encouraged to increase its operations outside the Community without recourse to the Community guarantee, particularly in the pre-accession countries and Mediterranean countries as well as in investment grade countries in other regions, while the nature of the coverage of the Community guarantee should be clarified as covering risks of a political or sovereign nature.

               (4)

               The Community guarantee should cover losses under loans and loan guarantees for EIB-eligible investment projects carried out in countries covered by the Instrument for Pre-Accession Assistance (5) (IPA), the European Neighbourhood and Partnership Instrument (6) (ENPI) and the Development Cooperation Instrument (7) (DCI), where the loan financing or guarantee has been granted according to a signed agreement which has neither expired nor been cancelled (EIB financing operations).

               (5)

               The amounts covered by the Community guarantee under this Decision should represent ceilings for financing by the EIB under the Community guarantee. They should not form targets that the EIB is obliged to meet.

               (6)

               The Community’s external relations policies have been revised and broadened in recent years. This has notably been the case for the Pre-Accession Strategy, for the European Neighbourhood Policy, for the renewed partnerships with Latin America and South-East Asia and for the European Union’s Strategic Partnerships with Russia, Central Asia, China and India. This is further the case in relation to the Community’s development policies, which have now been extended to include all developing countries. Those development policies are one of the pillars of the Community’s external relations, affording a solution tailored to the needs of developing countries.

               (7)

               From 2007, the Community’s external relations have also been supported by the new financial instruments, i.e. the IPA, the ENPI, the DCI, the European Instrument for Democracy and Human Rights (EIDHR) (8) and by the Instrument for Stability (9).

               (8)

               EIB financing operations should be consistent with and support the Community’s external policies including specific regional objectives and should contribute to the general objective, as referred to in Articles 177 and 179 of the Treaty, of promoting and consolidating democracy and the rule of law, human rights and fundamental freedoms, and to the observance of international environmental agreements to which the Community is a party. In relation to developing countries in particular, EIB financing operations should foster: sustainable economic and social development of these countries, more particularly in the most disadvantaged amongst them; their smooth and gradual integration into the world economy; the campaign against poverty; the general objective of developing and consolidating democracy and the rule of law; the general objective of respecting human rights and fundamental freedoms; as well as compliance with objectives approved by the Community in the context of the United Nations and other competent international organisations. By ensuring overall coherence with Community actions, EIB financing should be complementary to corresponding Community assistance policies, programmes and instruments in the different regions. Moreover, the protection of the environment and energy security of the Member States should form part of the EIB’s financing objectives in all eligible regions. EIB financing operations should take place in countries complying with appropriate conditionality consistent with Community high level agreements on political and macroeconomic aspects.

               (9)

               The policy dialogue between the Commission and the EIB, as well as strategic planning and coherence between EIB and Commission financing, should be strengthened. The link between EIB activities outside the Community and Community policies should be strengthened via enhanced cooperation between the EIB and the Commission at central, as well as at field level. Such strengthened coordination should include, inter alia, early mutual consultation with respect to policy matters, preparation of papers of mutual significance and project pipelines. Of particular importance is early consultation on strategic programming documents prepared by the Commission or by the EIB, to maximise synergies between EIB and Commission activities and measure progress towards the fulfilment of relevant Community policy objectives.

               (10)

               With regard to pre-accession countries, EIB financing in those countries should reflect the priorities established in the Accession and European Partnerships, in the Stabilisation and Association agreements and in negotiations with the Community. The focus of Community action in the Western Balkans should continue to shift progressively from reconstruction to pre-accession support. In this context, the EIB activity should, in addition, also seek to encourage the institution building aspect, where relevant, in cooperation with other international financial institutions active in the region. Over the period 2007-2011, financing to candidate countries (Croatia, Turkey and the former Yugoslav Republic of Macedonia) should increasingly take place under the Pre-Accession Facility made available by the EIB, which should be extended over time to cover the potential candidate countries in the Western Balkans in line with the progress of their accession process.

               (11)

               With regard to countries covered by the ENPI, the EIB should continue and consolidate its activities relating to the Mediterranean region, enhancing its focus on private sector development. In this respect, cooperation by partner countries to facilitate private sector development and encourage structural reform, in particular financial sector reform, is needed, as well as other measures to facilitate EIB activities, in particular to ensure that the EIB can issue bonds in local markets. As regards Eastern Europe, Southern Caucasus and Russia, the EIB should enhance its activities in the countries concerned in line with appropriate conditionality consistent with Community high-level agreements with the country in question on political and macroeconomic aspects. In this region, the EIB should finance projects of significant interest to the Community in transport, energy, telecommunications and environmental infrastructure. Priority should be given to projects on extended major Trans-European Network axes, projects with cross-border implications for one or more Member States and major projects favouring regional integration through increased connectivity. In the environmental sector, the EIB should in Russia give particular priority to projects within the framework of the Northern Dimension Environmental Partnership. In the energy sector, strategic energy supply and energy transport projects are of particular importance, in line with the objective of Community policy of diversifying energy sources and with a view to guaranteeing stable and secure resources for consumers. EIB financing operations in this region should be carried out in close cooperation with the European Bank for Reconstruction and Development (EBRD), in particular according to the terms set out in a tripartite Memorandum of Understanding between the Commission, the EIB and the EBRD.

               (12)

               EIB financing in Asian and Latin American countries will be progressively aligned with the Union’s cooperation strategy in those regions and be complementary to instruments financed by Community budgetary resources. The EIB should endeavour to progressively expand its activities across a larger number of countries in those regions, including in less prosperous countries. In support of Community objectives, EIB financing in Asian and Latin American countries should focus on environmental sustainability (including climate change mitigation) and energy security projects, as well as the continued support of the Union’s presence in Asia and Latin America through foreign direct investment, and the transfer of technology and know-how. Taking into account cost-efficiency, the EIB should be able to work also directly with local companies, in particular in the field of environmental sustainability and energy security. The mid-term review will re-examine the objectives of EIB financing in Asia and Latin America.

               (13)

               In Central Asia, the EIB should focus on major energy supply and energy transport projects which also serve Community energy interests and are consistent with and support the Community policy objectives of diversification of energy sources and the Kyoto requirements, and of enhancement of environmental protection. EIB financing in Central Asia should be carried out in close cooperation with the EBRD, in particular according to the terms set out in a tripartite Memorandum of Understanding between the Commission, the EIB and the EBRD.

               (14)

               To complement the EIB activities under the Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part (10), (the Cotonou Agreement) for countries concerned, in South Africa the EIB should focus on infrastructure projects of public interest (including municipal infrastructure, power and water supply) and private sector support, including small and medium-sized enterprises. The implementation of the provisions on economic cooperation under the Agreement on Trade, Development and Cooperation between the European Community and its Member States, of the one part, and the Republic of South Africa, of the other part (11), will further promote EIB activities in this region.

               (15)

               With a view to enhancing the coherence of overall Community support in the regions concerned, opportunities should be sought to combine EIB financing with Community budgetary resources as appropriate, in the form of grant support, risk capital and interest rate subsidies, alongside technical assistance for project preparation, implementation or enhancement of the legal and regulatory framework, through the IPA, the ENPI, the Instrument for Stability, the EIDHR and, for South Africa, the DCI.

               (16)

               The EIB already closely cooperates with international financial institutions and with European bilateral institutions. This cooperation is guided by regionally specific Memoranda of Understanding, which should be approved by the governing bodies of the EIB. In its financing operations outside the Community that fall within the scope of this Decision, the EIB should endeavour to further enhance coordination and cooperation with international financial institutions and with European bilateral institutions where relevant, including, where appropriate, cooperation on sector conditionality, increased use of co-financing and participation with other international financial institutions in global initiatives, such as those promoting aid coordination and efficiency.

               (17)

               The reporting and transmission of information by the EIB and the Commission on EIB financing operations should be strengthened. On the basis of the information received from the EIB, the Commission should report, on an annual basis, to the European Parliament and the Council on the EIB financing operations carried out under this Decision. The report should, in particular, contain the strategic documents and include a section on added value in line with Community policies, and a section on cooperation with the Commission, other international financial institutions and bilateral donors, including on cofinancing.

               (18)

               The Community guarantee established by this Decision should cover EIB financing operations signed during the period beginning on 1 February 2007 and ending on 31 October 2011. In order to be able to take stock of the developments during the first half of that period, the EIB and the Commission should prepare a mid-term review of the Decision. Such a review should in particular include an external evaluation, the terms of reference of which are specified in Annex II.

               (19)

               EIB financing operations should continue to be managed in accordance with the EIB’s own rules and procedures, including appropriate control measures, as well as with the relevant rules and procedures concerning the Court of Auditors and the European Anti-Fraud Office (OLAF).

               (20)

               The Guarantee Fund for External Action (the ‘Guarantee Fund’), established by Council Regulation (EC, Euratom) No 2728/94 (12), should continue to provide a liquidity cushion for the Community budget against losses on EIB financing operations.

               (21)

               The EIB should prepare, in consultation with the Commission, an indicative multi-annual programme of the volume of signatures of EIB financing operations, so as to ensure an appropriate budgetary plan for provisioning the Guarantee Fund. The Commission should take account of this plan in its regular budget programming transmitted to the budgetary authority.

               (22)

               By its judgment of 6 November 2008 in Case C-155/07 (Parliament v Council), the Court of Justice of the European Communities annulled Council Decision 2006/1016/EC of 19 December 2006 granting a Community guarantee to the European Investment Bank against losses under loans and loan guarantees for projects outside the Community (13). Decision 2006/1016/EC had been extended to five central Asian countries (namely Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan) by Council Decision 2008/847/EC of 4 November 2008 on the eligibility of central Asian countries under Decision 2006/1016/EC (14).

               (23)

               The Court, however, ordered that the effects of Decision 2006/1016/EC be maintained for EIB financing arrangements entered into before the entry into force, within a period of 12 months from the date of delivery of the said judgment, of a new decision adopted on the appropriate legal basis, namely Articles 179 and 181a of the Treaty together. The result of that judgment is that the codecision procedure will now apply for the activation of the optional mandate, the eligibility of countries listed in Annex I, and the suspension of new EIB financing in a specific country in the event of serious concerns over the political or economic situation.

               (24)

               A new Decision of the European Parliament and of the Council should therefore be adopted in order to provide for a continuous unchanged guarantee of the relevant EIB financing operations outside the Community.

               (25)

               Nevertheless, the swift adoption of this Decision should be achieved whilst ensuring that the European Parliament’s prerogatives are fully respected; for that reason, the Commission should present, before 30 April 2010, a proposal for a new decision, inter alia, taking into consideration the conclusions of the mid-term review.

               (26)

               That proposal for a new decision should address, amongst other things, the issue of greater scrutiny by the European Parliament and the Council of all budgetary and political decisions to be taken by the EIB and the Commission in the framework of that new decision, the issue of transparency of the whole financing mechanism, and the issue of the limitation of Community guarantee compared to disbursed appropriations,

         HAVE DECIDED AS FOLLOWS:
   Article 1
   Guarantee and ceilings
   1.   The Community shall grant the European Investment Bank (EIB) a global guarantee (the ‘Community guarantee’) in respect of payments not received by the EIB, but due to it, in connection with loans and loan guarantees for EIB-eligible investment projects carried out in countries covered by this Decision, where the loan financing or guarantee has been granted according to a signed agreement which has neither expired nor been cancelled (EIB financing operations) and has been granted in accordance with the EIB’s own rules and procedures and in support of the relevant external policy objectives of the Community.
   2.   The Community guarantee shall be restricted to 65 % of the aggregate amount of credits disbursed and guarantees provided under EIB financing operations, less amounts reimbursed, plus all related amounts.
   3.   The maximum ceiling of the EIB financing operations throughout the period 2007-2013, less amounts cancelled, shall not exceed EUR 27 800 000 000. This maximum ceiling shall be broken down into two parts:

               (a)

               a basic ceiling of a fixed maximum amount of EUR 25 800 000 000, the regional distribution of which is set out in paragraph 4, to cover the entire period 2007-2013;

               (b)

               an optional mandate of EUR 2 000 000 000. The activation in whole or in part of this optional amount and its regional distribution will be decided by the European Parliament and the Council in accordance with the procedure laid down in Article 251 of the Treaty. The decision will be based on the outcome of the mid-term review set out in Article 9.

         4.   The basic ceiling referred to in paragraph 3(a) shall be broken down into the following binding regional ceilings:

               (a)

               pre-accession countries: EUR 8 700 000 000;

               (b)

               neighbourhood and partnership countries: EUR 12 400 000 000;
               broken down into the following indicative sub-ceilings:

                           (i)

                           Mediterranean countries: EUR 8 700 000 000;

                           (ii)

                           Eastern Europe, Southern Caucasus and Russia: EUR 3 700 000 000;

               (c)

               Asia and Latin America: EUR 3 800 000 000;
               broken down into the following indicative sub-ceilings:

                           (i)

                           Latin America: EUR 2 800 000 000;

                           (ii)

                           Asia (including Central Asia): EUR 1 000 000 000;

               (d)

               Republic of South Africa: EUR 900 000 000.

         5.   Within the regional ceilings, the governing bodies of the EIB may decide to reallocate an amount of up to 10 % of the regional ceiling between sub-ceilings.
   6.   The Community guarantee shall cover EIB financing operations signed during the period beginning on 1 February 2007 and ending on 31 October 2011. EIB financing operations signed under Decisions 2006/1016/EC and 2008/847/EC shall continue to benefit from the Community guarantee under this Decision.
   7.   If, on expiry of the period referred to in paragraph 6, the European Parliament and the Council have not adopted a decision granting a new Community guarantee to the EIB for its financing operations outside the Community, that period shall be automatically extended by six months.
   Article 2
   Countries covered
   1.   The list of countries eligible or potentially eligible for EIB financing under Community guarantee is laid down in Annex I.
   2.   For countries listed in Annex I and marked with ‘*’ and for other countries not listed in Annex I, the eligibility of such country for EIB financing under Community guarantee shall be decided by the European Parliament and the Council on a case-by-case basis in accordance with the procedure laid down in Article 251 of the Treaty.
   3.   The Community guarantee shall cover only EIB financing operations carried out in countries that have concluded a framework agreement with the EIB establishing the legal conditions under which such operations are to be carried out.
   4.   In the event of serious concerns over the political or economic situation in a specific country, the European Parliament and the Council may decide to suspend new EIB financing under Community guarantee in that country in accordance with the procedure laid down in Article 251 of the Treaty.
   5.   The Community guarantee shall not cover EIB financing operations in a specific country where the agreement concerning such operations has been signed after that country’s accession to the European Union.
   Article 3
   Consistency with policies of the Community
   1.   The consistency of EIB external actions with the external policy objectives of the Community shall be strengthened with a view to maximising synergies of EIB financing and budgetary resources of the European Union, in particular through regular and systematic dialogue and early consultation on:

               (a)

               strategic documents prepared by the Commission, such as country and regional strategy papers, action plans and pre-accession documents;

               (b)

               the EIB’s strategic planning documents and project pipelines;

               (c)

               other policy and operational aspects.

         2.   The cooperation shall be carried out on a regionally differentiated basis, taking into consideration the EIB’s role as well as the policies of the Community in each region.
   3.   An EIB financing operation shall not be included under the cover of the Community guarantee in the event that the Commission delivers a negative opinion on such an operation within the framework of the procedure provided for in Article 21 of the Statutes of the EIB.
   4.   The consistency of EIB financing operations with the external policy objectives of the Community shall be monitored in accordance with Article 6.
   Article 4
   Cooperation with other international financial institutions
   1.   EIB financing operations shall increasingly be carried out, where appropriate, in cooperation between and/or by means of co-financing by the EIB and other international financial institutions, or European bilateral institutions, in order to maximise synergies, cooperation and efficiency and to ensure reasonable sharing of risks and coherent project and sector conditionality.
   2.   The cooperation referred to in paragraph 1 shall be facilitated by coordination, carried out notably in the context of Memoranda of Understanding, where appropriate, between the Commission, the EIB and the main international financial institutions and European bilateral institutions operating in the different regions.
   3.   The cooperation with international financial institutions and other donors shall be assessed at the mid-term review set out in Article 9.
   Article 5
   Coverage and terms of the Community guarantee
   1.   For EIB financing operations entered into with a State, or guaranteed by a State, and for other EIB financing operations entered into with regional or local authorities or government-owned and/or government-controlled public enterprises or institutions, where such other EIB financing operations have an appropriate EIB credit risk assessment taking into account the credit risk situation of the country concerned, the Community guarantee shall cover all payments not received by the EIB, but due to it (the ‘Comprehensive Guarantee’).
   For the purposes of this Article and Article 6(4), the notion of State includes the West Bank and Gaza Strip, as represented by the Palestinian Authority, and Kosovo (15), as represented by the UN Interim Administration Mission.
   2.   For EIB financing operations other than those indicated in paragraph 1, the Community guarantee shall cover all payments not received by the EIB, but due to it, where the non-receipt has been caused by the realisation of one of the following political risks (the ‘Political Risk Guarantee’):

               (a)

               non-transfer of currency;

               (b)

               expropriation;

               (c)

               war or civil disturbance;

               (d)

               denial of justice upon breach of contract.

         Article 6
   Reporting and accounting
   1.   The Commission shall report annually to the European Parliament and the Council on EIB financing operations carried out under this Decision. The report shall include an assessment of impact and effectiveness of EIB financing operations at project, sector, country and regional level as well as the contribution of the EIB financing operations to the fulfilment of the external policy objectives of the Community, taking into account the operational objectives of the EIB. It shall also include an assessment of the extent of cooperation between the EIB and the Commission, and between the EIB and other international financial institutions and bilateral donors.
   2.   For the purposes of paragraph 1, the EIB shall provide the Commission with yearly reports on EIB financing operations carried out under this Decision and on the fulfilment of the external policy objectives of the Community, including cooperation with other international financial institutions.
   3.   The EIB shall provide the Commission with statistical, financial and accounting data on each of the EIB financing operations which are necessary to fulfil the Commission’s reporting duties or requests by the European Court of Auditors as well as with an auditor’s certificate on the outstanding amounts of the EIB financing operations.
   4.   For the purposes of the Commission’s accounting and reporting of the risks covered by the Comprehensive Guarantee, the EIB shall provide the Commission with the EIB’s risk assessment and grading information concerning EIB financing operations with borrowers or guaranteed obligors other than States.
   5.   The EIB shall provide the information referred to in paragraphs 2, 3 and 4 at its own expense.
   Article 7
   Recovery of payments made by the Commission
   1.   Where the Commission makes any payment under the Community guarantee, the EIB shall, in the name and on behalf of the Commission, pursue the recovery of claims for the amounts paid.
   2.   The EIB and the Commission shall enter into an agreement laying down the detailed provisions and procedures relating to recovery of claims no later than the date of conclusion of the agreement referred to in Article 8.
   Article 8
   Guarantee agreement
   The EIB and the Commission shall enter into a guarantee agreement laying down the detailed provisions and procedures relating to the Community guarantee.
   Article 9
   Review
   1.   The Commission shall present to the European Parliament and the Council a mid-term report on the application of this Decision by 30 April 2010, accompanied by a proposal for its amendment, inter alia, drawing upon an external evaluation, the terms of reference of which are specified in Annex II to this Decision.
   2.   The Commission shall present a final report on the application of this Decision by 31 July 2013.
   Article 10
   Repeal
   Decision 2008/847/EC is hereby repealed.
   Article 11
   Entry into force
   This Decision shall enter into force on the third day following its publication in the Official Journal of the European Union.

      Done at Brussels, 13 July 2009.

            For the European Parliament

            The President

         H.-G. PÖTTERING

            For the Council

            The President

         E. ERLANDSSON

      (1)  Opinion of the European Parliament of 25 March 2009 (not yet published in the Official Journal) and Council Decision of 7 July 2009.

      (2)  OJ L 186, 15.7.2008, p. 30.

      (3)  OJ L 292, 9.11.2001, p. 41.

      (4)  OJ L 21, 25.1.2005, p. 11.

      (5)  Council Regulation (EC) No 1085/2006 (OJ L 210, 31.7.2006, p. 82).

      (6)  Regulation (EC) No 1638/2006 of the European Parliament and of the Council (OJ L 310, 9.11.2006, p. 1).

      (7)  Regulation (EC) No 1905/2006 of the European Parliament and of the Council (OJ L 378, 27.12.2006, p. 41).

      (8)  Regulation (EC) No 1889/2006 of the European Parliament and of the Council (OJ L 386, 29.12.2006, p. 1).

      (9)  Regulation (EC) No 1717/2006 of the European Parliament and of the Council (OJ L 327, 24.11.2006, p. 1).

      (10)  OJ L 317, 15.12.2000, p. 3.

      (11)  OJ L 311, 4.12.1999, p. 3.

      (12)  OJ L 293, 12.11.1994, p. 1.

      (13)  OJ L 414, 30.12.2006, p. 95.

      (14)  OJ L 301, 12.11.2008, p. 13.

      (15)  Under United Nations Security Council Resolution 1244 (1999).

      ANNEX I

         REGIONS AND COUNTRIES COVERED BY ARTICLES 1 AND 2

      A.   Pre-accession countries

      1.   Candidate countries

      Croatia, Turkey, the former Yugoslav Republic of Macedonia.
      2.   Potential candidate countries

      Albania, Bosnia and Herzegovina, Montenegro, Serbia, Kosovo under United Nations Security Council Resolution 1244 (1999).
      B.   Neighbourhood And Partnership Countries

      1.   Mediterranean countries

      Algeria, Egypt, the West Bank and the Gaza Strip, Israel, Jordan, Lebanon, Libya (*), Morocco, Syria, Tunisia.
      2.   Eastern Europe, Southern Caucasus and Russia

      Eastern Europe: Republic of Moldova, Ukraine, Belarus (*);
      Southern Caucasus: Armenia, Azerbaijan, Georgia;
      Russia: Russia.
      C.   Asia and Latin America

      1.   Latin America

      Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay, Venezuela.
      2.   Asia

      Asia (without Central Asia):
      Afghanistan (*), Bangladesh, Bhutan (*), Brunei, Cambodia (*), China (including Hong Kong and Macao Special Administrative Regions), India, Indonesia, Iraq (*), South Korea, Laos, Malaysia, Maldives, Mongolia, Nepal, Pakistan, the Philippines, Singapore, Sri Lanka, Taiwan (*), Thailand, Vietnam, Yemen.
      Central Asia:
      Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan.
      D.   South africa

      South Africa.

      ANNEX II

         Mid-term review and terms of reference for the evaluation of the EIB’s external mandate

         Mid-term review

      A substantive mid-term review of EIB external financing will be conducted by 2010. This review will draw on an independent external evaluation, which will also be transmitted to the European Parliament and the Council. The review will provide the basis for the decision of the European Parliament and the Council as to whether and to what extent to release any optional mandate to top up the guarantee foreseen in this Decision, for the period following 2010, as to whether to make other amendments to the mandate, and as to how to ensure maximum added value and efficiency in the EIB’s operations. The Commission will present the mid-term review to the European Parliament and to the Council by 30 April 2010, as the basis for any proposal for the amendment of the mandate.

         The framework of the evaluation

      It will include:

                  (a)

                  an evaluation of the EIB’s external financing activities. Parts of the evaluation will be conducted in cooperation with the EIB’s and the Commission’s evaluation departments;

                  (b)

                  an assessment of the wider impact of the EIB’s external lending on interaction with other international financial institutions and other sources of finance.

            The evaluation will be supervised and managed by a steering committee comprising several ‘wise persons’ appointed by the EIB Board of Governors, an EIB representative and a Commission representative. The steering committee will be chaired by one such ‘wise person’.
      The steering committee will be supported by the EIB’s and the Commission’s evaluation departments and by external experts. These external experts will be selected through a tender process managed by the Commission. The steering committee will be consulted on the terms of reference and on the criteria for the selection of the external experts. The costs of external experts will then be borne by the Commission and will be covered by the budget line dedicated to the provisioning of the Guarantee Fund.
      The final evaluation report will be submitted by the steering committee, and will draw clear conclusions, based on the information gathered, to provide information necessary for the decision of the mid-term review as to whether to release the optional tranche for the remainder of the mandate and as to the regional distribution of any additional financing.

         The scope of the evaluation

      The evaluation will cover the previous mandates (2000 to 2006) and the first years of the 2007-2013 mandate, up to the end of 2009. It will examine project financing volumes and disbursements by country as well as technical assistance and risk capital operations. Considering the effects at project, sector, regional and country level, the evaluation will base its conclusions on:

                  (a)

                  the in-depth evaluation of the relevance, performance (effectiveness, efficiency and sustainability) of EIB operations against their specific regional objectives as originally set within the relevant Community external policies as well as of their added value (to be conducted in association with the EIB’s evaluation unit and Commission services);

                  (b)

                  the assessment of consistency with the relevant Community external policies and strategies and of the additionality and added value of EIB operations in the first years of the 2007-2013 mandate in the framework of the specific regional objectives in the 2007-2013 mandate and of the corresponding performance indicators to be set by the EIB (to be conducted in association with the EIB’s evaluation unit and Commission services);

                  (c)

                  analysis of the financial needs of the beneficiaries, their absorption capacity and the availability of other sources of private or public financing for the relevant investments;

                  (d)

                  the assessment of the cooperation and coherence of actions between EIB and the Commission;

                  (e)

                  the assessment of the cooperation and synergies between the EIB and international and bilateral financial institutions and agencies.

            For the purposes of the assessments under points (a) and (b), the added value of EIB operations will be measured against three elements:

                  —

                  support of Community policy objectives,

                  —

                  the quality of the projects themselves, and

                  —

                  alternative sources of financing.


title: EFTA Surveillance Authority Decision No 533/09/COL of 16 December 2009 amending, for the 77th time, the procedural and substantive rules in the field of State aid by introducing a new chapter on a simplified procedure for treatment of certain types of State aid

text:
               15.3.2012

               EN

               Official Journal of the European Union

               L 75/26

         EFTA SURVEILLANCE AUTHORITY DECISION
   No 533/09/COL
   of 16 December 2009
   amending, for the 77th time, the procedural and substantive rules in the field of State aid by introducing a new chapter on a simplified procedure for treatment of certain types of State aid
   THE EFTA SURVEILLANCE AUTHORITY (1),
   HAVING REGARD to the Agreement on the European Economic Area (2), in particular to Articles 61 to 63 and Protocol 26 thereof,
   HAVING REGARD to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (3), in particular to Article 24 and Article 5(2)(b) thereof,
   Whereas:
   Under Article 24 of the Surveillance and Court Agreement, the Authority shall give effect to the provisions of the EEA Agreement concerning State aid.
   Under Article 5(2)(b) of the Surveillance and Court Agreement, the Authority shall issue notices or guidelines on matters dealt with in the EEA Agreement, if that Agreement or the Surveillance and Court Agreement expressly so provides or if the Authority considers it necessary.
   The Authority adopted the Procedural and Substantive Rules in the Field of State Aid (4), on 19 January 1994.
   The European Commission adopted a Notice on a simplified procedure for treatment of certain types of State aid (5) on 16 June 2009.
   That Notice is also of relevance for the European Economic Area,
   Uniform application of the EEA State aid rules is to be ensured throughout the European Economic Area,
   According to point II under the heading ‘GENERAL’ at the end of Annex XV to the EEA Agreement, the Authority, after consultation with the European Commission, is to adopt acts corresponding to those adopted by the European Commission,
   Having consulted the European Commission on 8 December 2009 and the EFTA States on the subject by letters dated 20 November 2009,
   HAS ADOPTED THIS DECISION:
   Article 1
   The State Aid Guidelines shall be amended by introducing a new chapter on a simplified procedure for treatment of certain types of State aid. The new chapter is contained in the Annex to this Decision.
   Article 2
   Only the English version is authentic.

      Done at Brussels, 16 December 2009.

            For the EFTA Surveillance Authority

         Per SANDERUD

            President

         Kristján Andri STEFÁNSSON

            College Member

      (1)  Hereinafter referred to as ‘the Authority’.

      (2)  Hereinafter referred to as ‘the EEA Agreement’.

      (3)  Hereinafter referred to as ‘the Surveillance and Court Agreement’.

      (4)  Guidelines on the application and interpretation of Articles 61 and 62 of the EEA Agreement and Article 1 of Protocol 3 to the Surveillance and Court Agreement, adopted and issued by the Authority on 19 January 1994, published in the Official Journal of the European Union (hereinafter referred to as OJ) L 231 of 3.9.1994 p. 1 and EEA Supplement No 32 of 3.9.1994 p. 1 (hereinafter referred to as ‘the State Aid Guidelines’). The updated version of the State Aid Guidelines is published on the Authority’s website: http://www.eftasurv.int/state-aid/legal-framework/state-aid-guidelines

      (5)  OJ C 136, 16.6.2009, p. 3.

      ANNEX I

         GUIDELINES ON A SIMPLIFIED PROCEDURE FOR TREATMENT OF CERTAIN TYPES OF STATE AID
          (1)

      1.   Introduction

                  (1)

                  These Guidelines set out a simplified procedure under which the Authority intends, in close cooperation with the EFTA State concerned, to examine within an accelerated time frame certain types of state support measures which only require the Authority to verify that the measure is in accordance with existing rules and practices without exercising any discretionary powers. The Authority’s experience gained in applying Article 61 of the EEA Agreement and the regulations, frameworks, guidelines and notices adopted on the basis of Article 61 of the EEA Agreement (2), has shown that certain categories of notified aid are normally approved without raising any doubts as to their compatibility with the EEA Agreement, provided that there are no special circumstances. These categories of aid are described in Section 2. Other aid measures notified to the Authority will be subject to the appropriate procedures (3) and normally to the Code of Best Practice for the conduct of State aid control procedures.

                  (2)

                  The purpose of these Guidelines is to set out the conditions under which the Authority will usually adopt a short-form decision declaring certain types of state support measures compatible with the EEA Agreement under the simplified procedure and to provide guidance in respect of the procedure itself. When all the conditions set out in these Guidelines are met, the Authority will use its best endeavours to adopt a short-form decision that the notified measure does not constitute aid or not to raise objections within 20 working days from the date of notification, in accordance with Article 4(2) or Article 4(3) in Part II of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice.

                  (3)

                  However, if any of the safeguards or exclusions set out in points 6 to 12 of these Guidelines are applicable, the Authority will revert to the normal procedure regarding notified aid described in Chapter II of Protocol 3 and will then adopt a full-form decision pursuant to Article 4 and/or Article 7 of that Protocol. In any case, the only legally enforceable time limits are those set out in Article 4(5) and Article 7(6) of Protocol 3.

                  (4)

                  By following the procedure outlined in these Guidelines, the Authority aims to make EEA State aid control more predictable and efficient. No part of these Guidelines should be interpreted as implying that a support measure which does not qualify as State aid within the meaning of Article 61 of the EEA Agreement must be notified to the Authority, although EFTA States remain free to notify such support measures for reasons of legal certainty.

            2.   Categories of State aid suitable for treatment under the simplified procedure

         Eligible categories of State aid

                  (5)

                  The following categories of measures are in principle suitable for treatment under the simplified procedure:

                              (a)

                              Category 1: Aid measures falling within the ‘standard assessment’ sections of existing guidelines
                              Aid measures falling within the ‘standard assessment’ (so-called ‘safe harbour’ sections) (4), or equivalent types of assessment (5) in horizontal guidelines, which are not covered by the General block exemption Regulation, are in principle suitable for treatment under the simplified procedure.
                              The simplified procedure will only be applied in cases where the Authority is satisfied, after the pre-notification phase (see points 13 to 16), that all the substantive and procedural requirements laid down in the applicable sections of the respective guidelines are fulfilled. This implies that the pre-notification phase confirms that the notified aid measure prima facie meets the relevant conditions, as further detailed in each of the applicable horizontal instruments, concerning:

                                          —

                                          type of beneficiaries,

                                          —

                                          eligible costs,

                                          —

                                          aid intensities and bonuses,

                                          —

                                          individual notification ceiling or maximum aid amount,

                                          —

                                          type of aid instrument used,

                                          —

                                          cumulation,

                                          —

                                          incentive effect,

                                          —

                                          transparency,

                                          —

                                          exclusion of beneficiaries which are subject to an outstanding recovery order (6).

                                    The types of measures for which the Authority is prepared to consider applying the simplified procedure within this category include in particular the following:

                                          (i)

                                          risk capital measures taking a form other than a participation into a private equity investment fund and meeting all other conditions of Section 4 of the Risk Capital Guidelines;

                                          (ii)

                                          environmental investment aid meeting the conditions of Section 3 of the Environmental Aid Guidelines:

                                                      —

                                                      the eligible cost basis of which is determined on the basis of a full cost calculation methodology in line with point 82 of the Environmental Aid Guidelines (7), or

                                                      —

                                                      including an eco-innovation bonus demonstrated to be in line with point 78 of the Environmental Aid Guidelines (8);

                                          (iii)

                                          aid for young innovative enterprises granted in accordance with Section 5.4 of the Guidelines for Research and Development and Innovation and the innovative character of which is determined on the basis of Section 5.4(b)(i) of the Guidelines (9);

                                          (iv)

                                          aid for innovation clusters granted in accordance with Sections 5.8 and 7.1 of the Guidelines for Research and Development and Innovation;

                                          (v)

                                          aid for process and organisational innovation in services granted in accordance with Section 5.5 of the Guidelines for Research and Development and Innovation;

                                          (vi)

                                          ad hoc regional aid which is below the individual notification threshold laid down in point 53 of the Regional Aid Guidelines (10);

                                          (vii)

                                          rescue aid in the manufacturing and services sectors (except in the financial sector) meeting all substantive conditions of Sections 3.1.1 and 3.1.2 of the Rescue and Restructuring Guidelines (11);

                                          (viii)

                                          rescue and restructuring schemes for small enterprises meeting all conditions of Section 4 of the Rescue and Restructuring Guidelines (12);

                                          (ix)

                                          ad hoc restructuring aid for small and medium enterprises, provided it meets all the conditions laid down in Section 3 of the Rescue and Restructuring Guidelines (13);

                                          (x)

                                          export credits in the shipbuilding sector meeting all the conditions of Section 3.3.4 of the Shipbuilding Guidelines (14);

                                          (xi)

                                          audiovisual support schemes meeting all the conditions set out in Section 2.3 of the Cinema Guidelines as regards the development, production, distribution and promotion of audiovisual works (15).

                                    The above list is illustrative and may evolve on the basis of future revisions of the currently applicable instruments or the adoption of new instruments. The Authority may review this list from time to time to keep it in line with applicable State aid rules.

                              (b)

                              Category 2: Measures corresponding to well-established Authority decision-making practice
                              Aid measures with features corresponding to those of aid measures approved in at least three earlier Authority decisions (hereinafter ‘precedent decisions’) (16), the assessment of which can thus be immediately carried out on the basis of this established Authority decision-making practice, are in principle suitable for treatment under the simplified procedure. Only Authority decisions adopted within the last 10 years preceding the date of pre-notification (see point 14) may qualify as ‘precedent decisions’.
                              The simplified procedure will only be applied in cases where the Authority is satisfied, after the pre-notification phase (see points 13-16), that the relevant substantive and procedural conditions which governed the precedent decisions are met, in particular as regards the objectives and overall set-up of the measure, the types of beneficiaries, eligible costs, individual notification ceilings, aid intensities and (where applicable) bonuses, cumulation provisions, incentive effect, and transparency requirements. In addition, as pointed out in point 11, the Authority will revert to the normal procedure where the notified aid measure could benefit an undertaking which is subject to an outstanding recovery order following a previous Authority decision declaring an aid unlawful and incompatible with the EEA Agreement (so-called Deggendorf issue).
                              The types of measures for which the Authority is prepared to consider applying the simplified procedure within this category include in particular the following:

                                          (i)

                                          aid measures for the preservation of national cultural heritage related to activities linked to historic, ancient sites or national monuments, provided that the aid is limited to ‘heritage conservation’ within the meaning of Article 61(3)(c) of the EEA Agreement read in conjunction with Article 107(3)(d) of the Treaty on the Functioning of the European Union (17);

                                          (ii)

                                          aid schemes for theatre, dance and music activities (18);

                                          (iii)

                                          aid schemes for the promotion of minority languages (19);

                                          (iv)

                                          aid measures in favour of the publishing industry (20);

                                          (v)

                                          aid measures in favour of broadband connectivity in rural areas (21);

                                          (vi)

                                          guarantee schemes for shipbuilding finance (22);

                                          (vii)

                                          aid measures fulfilling all other applicable provisions of the General block exemption Regulation, but excluded from its application merely because:

                                                      —

                                                      the measures constitute ‘ad hoc aid’ (23),

                                                      —

                                                      the measures are provided in an untransparent form (Article 5 of the General block exemption Regulation), but their gross grant equivalent is calculated on the basis of a methodology approved by the Authority in three individual decisions adopted after 1 January 2007;

                                          (viii)

                                          measures supporting the development of local infrastructure not constituting State aid within the meaning of Article 61(1) of the EEA Agreement in view of the fact that, having regard to the specificities of the case, the measure in question will not have any effect on intra-EEA trade (24);

                                          (ix)

                                          the prolongation and/or modification of existing schemes outside the scope of the simplified procedure foreseen in the Authority’s Decision No 195/04/COL of 14 July 2004 on the implementing provisions referred to under Article 27 in Part II of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (25) (see category 3 below), for example as regards the adaptation of existing schemes to new horizontal guidelines (26).

                                    This list is illustrative, since the exact scope of this category may evolve in line with Authority decision-making practice. The Authority may review this illustrative list from time to time to keep it in line with evolving practice.

                              (c)

                              Category 3: Prolongation or extension of existing schemes
                              Article 4 of the Authority’s Decision No 195/04/COL foresees a simplified notification procedure for certain alterations to existing aid. Under that Article, the ‘[…] following alterations to existing aid shall be notified on the simplified notification form set out in Annex II to this Decision:

                                          (a)

                                          increases in the budget of an authorised aid scheme exceeding 20 %;

                                          (b)

                                          prolongation of an existing authorised aid scheme by up to six years, with or without an increase in the budget;

                                          (c)

                                          tightening of the criteria for the application of an authorised aid scheme, a reduction of aid intensity or a reduction of eligible expenses’.

                        The possibility of applying Article 4 of the Authority’s Decision No 195/04/COL remains unaffected by these Guidelines. However, the Authority invites the notifying EFTA State to proceed in accordance with these Guidelines, including pre-notification of the aid measures concerned, while using the simplified notification form annexed to the Authority’s Decision No 195/04/COL. The Authority will, in the context of this procedure, also invite the EFTA State concerned to agree on the publication on the Authority’s website of the summary of its notification.

         Safeguards and exclusions

                  (6)

                  Since the simplified procedure applies only to aid notified on the basis of Article 1(3) in Part I of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, unlawful aids are excluded. Moreover, to the extent that the EEA Agreement applies to the following sectors, the simplified procedure will not apply to aid favouring activities in the fishery and aquaculture sectors, activities in the primary production of agricultural products or activities in the processing or marketing of agricultural products due to the specificities of the sectors concerned. In addition, the simplified procedure will not be applied retroactively to measures pre-notified before 1 January 2010.

                  (7)

                  In assessing whether a notified aid measure falls into one of the eligible categories set out in point 5, the Authority will ensure that the applicable guidelines and/or established Authority decision-making practice on the basis of which the notified aid measure is to be assessed, as well as all relevant factual circumstances, are established with sufficient clarity. Given that the completeness of the notification constitutes a key element for determining whether the simplified procedure is to be applied, the notifying EFTA State is invited to provide all relevant information, including the precedent decisions relied upon, if appropriate, at the outset of the pre-notification phase (see point 14).

                  (8)

                  Where the notification form is not complete or contains misleading or incorrect information, the Authority will not apply the simplified procedure. In addition, to the extent that the notification involves novel legal issues of a general interest, the Authority will not normally apply the simplified procedure.

                  (9)

                  While it can normally be assumed that aid measures falling into the categories set out in point 5 will not raise doubts as to their compatibility with the EEA Agreement, there may none the less be special circumstances which require a closer investigation. In such cases, the Authority may revert to the normal procedure at any time.

                  (10)

                  Such special circumstances may include in particular: certain forms of aid as yet untested in the Authority’s decision-making practice, precedent decisions which the Authority may be in the course of reassessing in the light of recent case-law or developments of the EEA, novel technical issues, or concerns as regards the measure’s compatibility with other provisions of the EEA Agreement (for example, non-discrimination, the four freedoms, etc.).

                  (11)

                  The Authority will revert to the normal procedure where the notified aid measure could benefit an undertaking which is subject to an outstanding recovery order following a previous Authority decision declaring an aid unlawful and incompatible with the EEA Agreement (so-called Deggendorf issue).

                  (12)

                  Finally, if a third party expresses substantiated concerns about the notified aid measure within the time-limit laid down in point 21 of these Guidelines, the Authority will revert to the normal procedure (27) and will inform the EFTA State to that effect.

            3.   Procedural provisions

         Pre-notification contacts

                  (13)

                  The Authority has found pre-notification contacts with the notifying EFTA State beneficial even in seemingly unproblematic cases. Such contacts allow the Authority and the EFTA States, in particular, to determine at an early stage the relevant Authority instruments or precedent decisions, the degree of complexity which the Authority’s assessment is likely to involve and the scope and depth of the information required for the Authority to make a full assessment of the case.

                  (14)

                  In view of the time constraints of the simplified procedure, the assessment of a state support measure under the simplified procedure is conditional upon the EFTA State holding pre-notification contacts with the Authority. In this context, the EFTA State is invited to submit a draft notification form with the necessary supplementary information sheets provided for in Article 2 of the Authority’s Decision No 195/04/COL, and the relevant precedent decisions if appropriate, via the Authority’s established IT application. The EFTA State may also request, at this stage, that the Authority waive the completion of certain parts of the notification form. The EFTA State and the Authority may also agree, in the context of the pre-notification contact, that the EFTA State does not need to provide a draft notification form and accompanying information in the pre-notification phase. Such an agreement may be appropriate, for instance, due to the repetitive nature of certain aid measures (for instance the category of aid set out in point 5(c) of these Guidelines). In this context, the EFTA State may be invited to proceed directly with the notification where detailed discussion about the envisaged aid measures is not considered necessary by the Authority.

                  (15)

                  Within two weeks from the receipt of the draft notification form, the Authority will organise a first pre-notification contact. The Authority will promote the holding of contacts via email or conference calls or, at the specific request of the EFTA State concerned, organise meetings. Within five working days after the last pre-notification contact, the Authority will inform the EFTA State concerned whether it considers that the case qualifies prima facie for treatment under the simplified procedure, which information still needs to be provided for the measure to qualify for treatment under that procedure, or whether the case will remain subject to the normal procedure.

                  (16)

                  The indication by the Authority that the case concerned can be treated under the simplified procedure implies that the EFTA State and the Authority agree prima facie that the information provided in the pre-notification context would, if submitted as a formal notification, constitute a complete notification. The Authority would thus, in principle, be in a position to approve the measure, once formally notified on the basis of a notification form embodying the result of the pre-notification contacts, without a further request for information.

         Notification

                  (17)

                  The EFTA State must notify the aid measure(s) concerned no later than two months after it is informed by the Authority that the measure qualifies prima facie for treatment under the simplified procedure. If the notification includes any changes as compared to the information presented in the pre-notification documents, such changes must be highlighted prominently in the context of the notification form.

                  (18)

                  The submission of the notification by the EFTA State concerned triggers the start of the period referred to in point 2.

                  (19)

                  The simplified procedure does not provide for a specific simplified notification form. Except as regards cases which fall within the category of aid set out in point 5(c) of these Guidelines, the notification is to be carried out on the basis of the standard notification forms in the Authority’s Decision No 195/04/COL.

         Publication of a summary of the notification

                  (20)

                  The Authority will publish on its website a summary of the notification, based on the information provided by the EFTA State, in the standard form set out in the Annex to these Guidelines. The standard form contains an indication that, on the basis of the information provided by the EFTA State, the aid measure may qualify for the application of a simplified procedure. By requesting the Authority to treat a notified measure under these Guidelines, the EFTA State concerned will be considered to agree that the information provided in its notification, which is to be published on the website in the form set out in the Annex to these Guidelines, is non-confidential in nature. Furthermore, EFTA States are invited to clearly indicate whether the notification contains any business secrets.

                  (21)

                  Interested parties will then have 10 working days to submit observations (including a non-confidential version), in particular on circumstances which might require a more thorough investigation. In cases where substantiated competition concerns are raised by interested parties with respect to the notified measure, the Authority will revert to the normal procedure and inform the EFTA State and the interested party or parties concerned to that effect. The EFTA State concerned will also be informed of any substantiated concerns and will be given the opportunity to comment on them.

         Short-form decision

                  (22)

                  If the Authority is satisfied that the notified measure fulfils the criteria for the simplified procedure (see, in particular, point 5), it will issue a short-form decision. The Authority will thus use its best endeavours to adopt a decision that the notified measure does not constitute aid or a decision not to raise objections pursuant to Article 4(2) or (3) in Part II of Protocol 3 within 20 working days from the date of notification, unless any safeguard or exclusion referred to in points 6 to 12 of these Guidelines is applicable.

         Publication of the short-form decision

                  (23)

                  In accordance with Article 26(1) in Part II of Protocol 3 the Authority will publish a summary notice of the decision in the Official Journal of the European Union and the EEA Supplement thereto. The short-form decision will be made available on the Authority’s website. It will contain a reference to the summary information about the notification as published on the Authority’s website at the time of notification, a standard assessment of the measure under Article 61(1) of the EEA Agreement and, where applicable, a statement that the aid measure is declared compatible with the EEA Agreement because it falls within one or more of the categories set out in point 5 of these Guidelines, with the applicable category or categories being explicitly identified and a reference to the applicable horizontal instruments and/or precedent decisions included.

            4.   Final provisions

                  (24)

                  Upon request of the EFTA State concerned, the Authority will apply the principles set out in these Guidelines to measures notified pursuant to point 17 as from 1 January 2010.

                  (25)

                  The Authority may review these Guidelines on the basis of important competition policy considerations or in order to take account of the evolution of State aid law and decision-making practice. The Authority intends to carry out a first review of these Guidelines at the latest four years after its publication. In this context, the Authority will examine the extent to which specific simplified notification forms should be developed in order to facilitate the implementation of these Guidelines.

         (1)  This Chapter corresponds to the Notice from the Commission on a simplified procedure for treatment of certain types of State aid (OJ C 136, 16.6.2009, p. 3).

         (2)  See, in particular, the Guidelines for State aid for research and development and innovation, (OJ L 305, 19.11.2009, p. 1 and EEA Supplement No 60, 19.11.2009, p. 1), hereinafter referred to as the ‘Guidelines for Research and Development and Innovation’; the Guidelines on State aid to promote risk capital investments in small and medium-sized enterprises, OJ L 184, 16.7.2009, p. 18, hereinafter the ‘Risk Capital Guidelines’; the Guidelines on State aid for environmental protection, (OJ L 144, 10.6.2010, p. 1 and EEA Supplement No 29, 10.6.2010, p. 1), hereinafter the ‘Environmental Aid Guidelines’; the Guidelines on national regional aid for 2007–2013 (OJ L 54, 28.2.2008, p. 1), hereinafter the ‘Regional Aid Guidelines’; the Decision concerning the prolongation of the Guidelines on State aid to shipbuilding (OJ L 148, 11.6.2009, p. 55), hereinafter the ‘Shipbuilding Guidelines’; the Guidelines on State aid to cinematographic and other audiovisual works, (OJ L 105, 21.4.2011, p. 32 and EEA Supplement No 23, 21.4.2011, p. 1), hereinafter the ‘Cinema Guidelines’; Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty (General block exemption Regulation) (OJ L 214, 9.8.2008, p. 3), incorporated in Annex XV to the EEA Agreement by Joint Committee Decision No 120/2008 (OJ L 339, 18.12.2008, p. 111 and EEA Supplement No 79, 18.12.2008, p. 20).

         (3)  Measures notified to the Authority in the context of the current financial crisis pursuant to the Authority’s guidelines entitled ‘The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis’ (OJ L 17, 20.1.2011, p. 1 and EEA Supplement No 3, 20.1.2011, p. 1) and the ‘Temporary Framework for State aid measures to support access to finance in the current financial and economic crisis’ (OJ L 15, 20.1.2011, p. 26 and EEA Supplement No 3, 20.1.2011, p. 31) will not be subject to the simplified procedure set out in these Guidelines. Specific ad hoc arrangements have been put in place in order to deal swiftly with those cases.

         (4)  Such as Section 5 of the Guidelines for Research and Development and Innovation or Section 3 of the Environmental Aid Guidelines, and Section 4 of the Risk Capital Guidelines.

         (5)  Regional Aid Guidelines; Section 3.1.2 of the Guidelines on State aid for rescuing and restructuring firms in difficulty (OJ L 107, 28.4.2005, p. 28), hereinafter the ‘Rescue and Restructuring Guidelines’.

         (6)  The Authority will revert to the normal procedure where the notified aid measure could benefit an undertaking which is subject to an outstanding recovery order following a previous Authority decision declaring an aid unlawful and incompatible with the EEA Agreement (so-called Deggendorf issue). See Case C-188/92 TWD Textilwerke Deggendorf [1994] ECR I-833.

         (7)  Article 18(5) of the General block exemption Regulation foresees a simplified cost calculation methodology.

         (8)  The General block exemption Regulation does not exempt eco-innovation bonuses.

         (9)  Only aid to young innovative enterprises meeting the conditions laid down in point 5.4(b)(ii) of the Guidelines for Research and Development and Innovation are subject to the General block exemption Regulation.

         (10)  In such cases, the information to be provided by the EFTA State will need to demonstrate upfront that: (i) the aid amount remains below the notification threshold (without sophisticated net present value calculations); (ii) the aid concerns a new investment (no replacement investment); and (iii) the beneficial effects of the aid on regional development manifestly outweigh the distortions of competition it creates. See for example the Commission’s Decision in case N 721/2007 (Poland, ‘Reuters Europe SA’).

         (11)  See for example the Commission’s Decision in cases N 28/2006 (Poland, Techmatrans), N 258/2007 (Germany, Rettungsbeihilfe zugunsten der Erich Rohde KG) and N 802/2006 (Italy, rescue aid to Sandretto Industrie).

         (12)  See for example the Commission’s Decisions in cases N 85/2008 (Austria, Guarantee scheme for small and medium-sized enterprises in the region of Salzburg), N 386/2007 (France, Rescue and restructuring scheme for small and medium-sized enterprises), N 832/2006 (Italy, Rescue and restructuring scheme Valle d’Aosta). This approach is in line with Article 1(7) of the General block exemption Regulation.

         (13)  See for example the Commission’s Decisions in cases N 92/2008 (Austria, Restructuring aid for Der Bäcker Legat) and N 289/2007 (Italy, Restructuring aid to Fiem SRL).

         (14)  See for example the Commission’s Decisions in cases N 76/2008 (Germany, Prolongation of CIRR financing scheme for the export of ships), N 26/2008 (Denmark, Changes to financing scheme for the export of ships) and N 760/2006 (Spain, Extension of export financing scheme — Spanish shipbuilding).

         (15)  Although the Guidelines’ criteria apply directly only to the activity of production, in practice, they are also applied by analogy to assess the compatibility of the activities of pre- and post-production of audiovisual works, as well as the principles of necessity and proportionality under Articles 61(3)(c) of the EEA Agreement. See for example the Commission’s Decisions in cases N 233/2008 (Latvian film support scheme), N 72/2008 (Spain, Scheme for the promotion of films in Madrid), N 60/2008 (Italy, Film support in the Sardinia region) and N 291/2007 (Netherlands Film Fund).

         (16)  The Authority may also rely on decisions adopted by the Commission when assessing whether there is a well-established decision-making practice.

         (17)  See for example the Commission’s Decisions in cases N 393/2007 (Netherlands, Subsidy to NV Bergkwartier), N 106/2005 (Poland, Hala Ludowa in Wroclaw) and N 123/2005 (Hungary, Earmarked scheme for tourism and culture in Hungary).

         (18)  See for example the Commission’s Decisions in cases N 340/2007 (Spain, Aid for theatre, dance, music and audiovisual activities in the Basque country), N 257/2007 (Spain, Promotion of theatre production in the Basque country) and N 818/99 (France; Parafiscal tax on spectacles and concerts).

         (19)  See for example the Commission’s Decisions in cases N 776/2006 (Spain, Aid for the promotion of the Basque language), N 49/2007 (Spain, Aid for the promotion of the Basque language) and N 161/2008 (Spain, Aid to the Basque language).

         (20)  See for example the Commission’s Decisions in cases N 687/2006 (Slovak Republic, Aid to Kalligram SRO in favour of a periodical), N 1/2006 (Slovenia, Promotion of the publishing industry in Slovenia) and N 268/2002 (Italy, Aid in favour of the publishing industry in Sicily).

         (21)  See for example the Commission’s Decisions in cases N 264/2006 (Italy, Broadband for rural Tuscany), N 473/2007 (Italy, Broadband connections for Alto Adige) and N 115/2008 (Broadband in rural areas of Germany).

         (22)  See for example the Commission’s Decisions in cases N 325/2006 (Germany, prolongation of the guarantee schemes for shipbuilding finance), N 35/2006 (France, Guarantee scheme for ship financing and bonding) and N 253/2005 (Netherlands, Guarantee scheme for ship financing).

         (23)  Ad hoc aid is often excluded from the scope of the General block exemption Regulation. This exclusion applies to all large enterprises (Article 1(5) of the General block exemption Regulation), as well as, in certain instances, to small and medium-sized enterprises (see Articles 13 and 14 concerning regional aid, Article 16 concerning female entrepreneurship, Article 29 concerning aid in the form of risk capital and Article 40 concerning aid for the recruitment of disadvantaged workers). As regards the specific conditions governing ad hoc regional investment aid, see footnote 10 above. Moreover these Guidelines is without prejudice to any Authority communication or guidance paper laying down detailed economic assessment criteria for the compatibility analysis of cases subject to individual notification.

         (24)  See the Commission’s Decisions in cases N 258/2000 (Germany, leisure pool Dorsten), N 486/2002 (Sweden, Aid in favour of a congress hall in Visby), N 610/2001 (Germany, Tourism infrastructure program Baden-Württemberg), N 377/2007 (The Netherlands, Support to Bataviawerf — Reconstruction of a vessel from the 17th century). In order for the measure concerned to be considered as not having any effect on intra-EEA trade, these four precedent decisions require, most prominently, a demonstration by the EFTA State of the following features: 1. that the aid does not lead to investments being attracted in the region concerned; and 2. that the goods/services produced by the beneficiary are purely local and/or have a geographically limited attraction zone; and 3. that there is no more than marginal effect on consumers from neighbouring EEA States; and 4. that the market share of the beneficiary is minimal on any relevant market definition used and that the beneficiary does not belong to a wider group of undertakings. These features should be highlighted in the draft notification form referred to in point 14 of these Guidelines.

         (25)  OJ L 139, 25.5.2006, p. 37 and EEA Supplement No 26, 25.5.2006, p. 1. Amended by Decision 319/05/COL of 14.12.2005 (OJ L 113, 27.4.2006, p. 24 and EEA Supplement No 21, 27.4.2006, p. 46) and Decision 789/08/COL of 17.12.2008 (OJ L 340, 22.12.2010, p. 1 and EEA Supplement No 72, 22.12.2010, p. 1). Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 140, 30.4.2004, p. 1).

         (26)  See for example the Commission’s Decisions in cases N 585/2007 (United Kingdom, Prolongation of Yorkshire R & D scheme), N 275/2007 (Germany, Prolongation of rescue and restructuring scheme for small and medium-sized enterprises in Bremen), N 496/2007 (Italy (Lombardia) Guarantee Fund for the development of risk capital) and N 625/2007 (Latvia, Aid to risk capital to small and medium-sized enterprises).

         (27)  This does not imply any increase of third parties’ rights in view of the case law of the EFTA Court and the Community Courts. See Case T-95/03 Asociación de Empresarios de Estaciones de Servicio de la Comunidad Autónoma de Madrid and Federación Catalana de Estaciones de Servicio v Commission [2006] ECR II-4739, paragraph 139 and Case T-73/98 Prayon-Rupel v Commission [2001] ECR II-867, paragraph 45.

      ANNEX II

         SUMMARY OF NOTIFICATION: INVITATION TO THIRD PARTIES TO SUBMIT COMMENTS

         NOTIFICATION OF A STATE AID MEASURE

      On … the Authority received a notification of an aid measure pursuant to 1(3) in Part I of Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice. On preliminary examination, the Authority finds that the notified measure could fall within the scope of the Authority’s Guidelines on a simplified procedure for treatment of certain types of State aid (OJ C …, p. …).
      The Authority invites interested third parties to submit their possible observations on the proposed measure to the Authority.
      The main features of the aid measure are the following:

                  Reference number of the aid: N …

                  EFTA State:

                  EFTA State reference number:

                  Region:

                  Granting authority:

                  Title of the aid measure:

                  National legal basis:

                  Proposed EEA basis for assessment: … guidelines or established Authority practice as highlighted in Authority Decision (1, 2 and 3).

                  Type of measure: Aid scheme/Ad hoc aid

                  Amendment of an existing aid measure:

                  Duration (scheme):

                  Date of granting:

                  Economic sector(s) concerned:

                  Type of beneficiary (SMEs/large enterprises):

                  Budget:

                  Aid instrument (grant, interest rate subsidy, …):

            Observations raising competition issues relating to the notified measure must reach the Authority no later than 10 working days following the date of this publication and include a non-confidential version of these observations to be provided to the EFTA State concerned and/or other interested parties. Observations can be sent to the Authority by fax, by post or email under reference number N … to the following address:

                  EFTA Surveillance Authority

                  Rue Belliard 35

                  1040 Brussels

                  BELGIUM

                  Fax (+32) (0) 22861800

                  E-mail: registry@eftasurv.int


title: 2009/942/EC: Council Decision of 30 November 2009 amending Decision 2006/325/EC to provide for a procedure for the implementation of Article 5(2) of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters

text:
               16.12.2009

               EN

               Official Journal of the European Union

               L 331/24

      COUNCIL DECISION

   of 30 November 2009
   amending Decision 2006/325/EC to provide for a procedure for the implementation of Article 5(2) of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
   (2009/942/EC)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 61(c) thereof, in conjunction with the first sentence of the first subparagraph of Article 300(2) and the first subparagraph of Article 300(3) thereof,
   Having regard to the proposal from the Commission,
   Having regard to the Opinion of the European Parliament (1),
   Whereas:

               (1)

               The application of the provisions of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2) was extended to Denmark by the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (3) (hereinafter ‘the Agreement’), concluded by Council Decision 2006/325/EC (4).

               (2)

               Article 5(2) of the Agreement provides that Denmark will abstain from entering into international agreements which may affect or alter the scope of Regulation (EC) No 44/2001, unless it is done in agreement with the Community and satisfactory arrangements have been made with regard to the relationship between that Agreement and the international agreement in question.

               (3)

               Neither the Agreement nor Decision 2006/325/EC stipulates how the Community is to express its agreement to the conclusion by Denmark of the international agreement in question.

               (4)

               It is therefore necessary to establish a procedure for the implementation of Article 5(2) of the Agreement. Such a procedure should ensure that decisions expressing the Community’s agreement can be taken swiftly.

               (5)

               When informed by Denmark of its intention to enter into an international agreement, the Commission should assess the coherence of that agreement with Regulation (EC) No 44/2001, including Community legislation affecting that Regulation, and set out any arrangements which may be necessary. As the objective is to arrive at a uniform application of the provisions of Regulation (EC) No 44/2001 in all Member States and in Denmark, the Commission should ensure that Denmark does not enter into a specific international agreement if this could affect the conditions on which the Community would itself accede to the agreement in question, or, as the case may be, would authorise the Member States to accede to it in the interest of the Community. If the Community is already party to the agreement in question or if the Community has authorised the Member States to become party thereto in the interest of the Community, the Commission should make an assessment of a more limited nature with the aim of verifying that Denmark proposes to accede to the international agreement on the same conditions as the Community or, as the case may be, the Member States as authorised by the Community.

               (6)

               Decision 2006/325/EC should be amended accordingly in order to provide for such a procedure.

               (7)

               In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European Community, the United Kingdom and Ireland are taking part in the adoption and application of this Decision.

               (8)

               In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application,

         HAS DECIDED AS FOLLOWS:
   Sole Article
   The following Articles shall be inserted in Decision 2006/325/EC:

      ‘Article 1a
      1.   For the purpose of applying Article 5(2) of the Agreement, the Commission shall assess, before taking a decision expressing the Community’s agreement, whether the international agreement envisaged by Denmark would not render the Agreement ineffective and would not undermine the proper functioning of the system established by its rules.
      2.   The Commission shall take a reasoned decision within 90 days of being informed by Denmark of Denmark’s intention to enter into the international agreement in question.
      If the international agreement in question meets the conditions referred to in paragraph 1, the decision by the Commission shall express the Community’s agreement within the meaning of Article 5(2) of the Agreement.
      Article 1b
      The Commission shall inform the Member States of the international agreements which Denmark has been authorised to conclude in accordance with Article 1a.’

      Done at Brussels, 30 November 2009.

            For the Council

            The President

         B. ASK

      (1)  Opinion of 24 November 2009 (not yet published in the Official Journal).

      (2)  OJ L 12, 16.1.2001, p. 1.

      (3)  OJ L 299, 16.11.2005, p. 62.

      (4)  OJ L 120, 5.5.2006, p. 22.


title: 2009/222/EC: Decision of the European Parliament of 22 April 2008 on the closure of the accounts of the European Maritime Safety Agency for the financial year 2006

text:
               31.3.2009

               EN

               Official Journal of the European Union

               L 88/200

      DECISION OF THE EUROPEAN PARLIAMENT

   of 22 April 2008
   on the closure of the accounts of the European Maritime Safety Agency for the financial year 2006
   (2009/222/EC)
   THE EUROPEAN PARLIAMENT,
   having regard to the final annual accounts of the European Maritime Safety Agency for the financial year 2006 (1),
   having regard to the Court of Auditors' report on the final annual accounts of the European Maritime Safety Agency for the financial year 2006, together with the Agency's replies (2),
   having regard to the Council's recommendation of 12 February 2008 (5843/2008 — C6-0084/2008),
   having regard to the EC Treaty, and in particular Article 276 thereof,
   having regard to Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (3), and in particular Article 185 thereof,
   having regard to Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (4), and in particular Article 19 thereof,
   having regard to Commission Regulation (EC, Euratom) No 2343/2002 of 19 November 2002 on the framework Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 (5), and in particular Article 94 thereof,
   having regard to Rule 71 of and Annex V to its Rules of Procedure,
   having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on Transport and Tourism (A6-0115/2008),

               1.

               Notes that the final annual accounts of the European Maritime Safety Agency are as annexed to the Court of Auditors' report;

               2.

               Approves the closure of the accounts of the European Maritime Safety Agency for the financial year 2006;

               3.

               Instructs its President to forward this Decision to the Executive Director of the European Maritime Safety Agency, the Council, the Commission and the Court of Auditors, and to arrange for its publication in the Official Journal of the European Union (L series).

            The President

         Hans-Gert PÖTTERING

            The Secretary-General

         Harald RØMER

      (1)  OJ C 261, 31.10.2007, p. 20.

      (2)  OJ C 309, 19.12.2007, p. 55.

      (3)  OJ L 248, 16.9.2002, p. 1.

      (4)  OJ L 208, 5.8.2002, p. 1.

      (5)  OJ L 357, 31.12.2002, p. 72.


Avis juridique important

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31999D0869

1999/869/EC: Council Decision of 21 December 1999 on the provisional application of the Agreement in the form of an Exchange of Letters between the European Community and the Republic of Belarus amending the Agreement between the European Community and the Republic of Belarus on trade in textile products

Official Journal L 336 , 29/12/1999 P. 0026 - 0026

COUNCIL DECISIONof 21 December 1999on the provisional application of the Agreement in the form of an Exchange of Letters between the European Community and the Republic of Belarus amending the Agreement between the European Community and the Republic of Belarus on trade in textile products(1999/869/EC)THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty establishing the European Community, and in particular Article 133 in conjunction with Article 300(2), first sentence thereof,Having regard to the proposal from the Commission,Whereas:(1) the Commission has negotiated on behalf of the Community an agreement in the form of an Exchange of Letters to revise and extend the existing bilateral agreement and protocols on trade in textile products with the Republic of Belarus;(2) this Agreement in the form of an Exchange of Letters should, considering the provisions on increases of quotas in 1999, be applied on a provisional basis as soon as possible before the end of 1999, after publication of this Decision in the Official Journal, pending the completion of procedures required for conclusion, subject to reciprocal provisional application by the Republic of Belarus,HAS ADOPTED THIS REGULATION:Article 1The Agreement in the form of an Exchange of Letters between the European Community and the Republic of Belarus amending the Agreement between the European Community and the Republic of Belarus on trade in textile products shall be applied on a provisional basis, pending its formal conclusion and subject to reciprocal provisional application of the Agreement by the Republic of Belarus(1).The text of the Agreement is attached to this Decision.Article 2This Decision shall be published in the Official Journal of the European Communities.It shall enter into force the day after its publication in the Official Journal.Done at Brussels, 21 December 1999.For the CouncilThe PresidentT. HALONEN(1) The date from which provisional application will become effective will be published in the Official Journal of the European Communities, C series.


Avis juridique important

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31978D0892

78/892/ECSC: Council Decision of 16 October 1978 designating four representative organizations required to draw up lists of candidates for the Consultative Committee of the European Coal and Steel Community

Official Journal L 314 , 08/11/1978 P. 0005 - 0005 Greek special edition: Chapter 01 Volume 2 P. 0112

****      COUNCIL DECISION   OF 16 OCTOBER 1978   DESIGNATING FOUR REPRESENTATIVE ORGANIZATIONS REQUIRED TO DRAW UP LISTS OF CANDIDATES FOR THE CONSULTATIVE COMMITTEE OF THE EUROPEAN COAL AND STEEL COMMUNITY  ( 78/892/ECSC )   THE COUNCIL OF THE EUROPEAN   COMMUNITIES ,   HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY , AND IN PARTICULAR ARTICLE 18 THEREOF ,   WHEREAS FOR THE PURPOSE OF RENEWING THE CONSULTATIVE COMMITTEE OF THE EUROPEAN COAL AND STEEL COMMUNITY FOR A PERIOD OF TWO YEARS , THE COUNCIL , BY ITS DECISION OF 2 AUGUST 1978 , REQUIRED THE REPRESENTATIVE ORGANIZATIONS TO DRAW UP LISTS OF TWICE AS MANY CANDIDATES AS THERE WERE SEATS ALLOCATED TO THEM ;   WHEREAS ON THAT OCCASION THE COUNCIL DECIDED TO DEFER DISTRIBUTION OF THE SEATS ALLOCATED TO THE FRENCH WORKERS ' ORGANIZATIONS ,   HAS DECIDED AS FOLLOWS :   SOLE ARTICLE   THE WORKERS '  REPRESENTATIVE ORGANIZATIONS LISTED BELOW ARE HEREBY REQUIRED TO DRAW UP LISTS OF CANDIDATES ON THE BASIS OF WHICH THEIR REPRESENTATIVES ON THE CONSULTATIVE COMMITTEE OF THE EUROPEAN COAL AND STEEL COMMUNITY SHALL BE APPOINTED IN NUMBERS EQUAL TO THOSE SHOWN FOR EACH ORGANIZATION :   FRANCE :   CONFEDERATION GENERALE DU TRAVAIL:ONE SEAT ; CONFEDERATION FRANCAISE DEMOCRATIQUE   DU TRAVAIL:ONE SEAT ; CONFEDERATION FRANCAISE DES TRAVAILLEURS   CHRETIENS:ONE SEAT ; CONFEDERATION GENERALE DU TRAVAIL  -   FORCE OUVRIERE:ONE SEAT .  DONE AT LUXEMBOURG , 16 OCTOBER 1978 .   FOR THE COUNCIL   THE PRESIDENT   K . VAN DOHNANYI


Avis juridique important

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31989D0207

89/207/EEC: Council Decision of 27 February 1989 on the conclusion of a Supplementary Protocol to the Agreement establishing an association between the European Economic Community and Malta

Official Journal L 081 , 23/03/1989 P. 0001 - 0001 Finnish special edition: Chapter 11 Volume 15 P. 0011  Swedish special edition: Chapter 11 Volume 15 P. 0011

COUNCIL DECISION of 27 February 1989 on the conclusion of a Supplementary Protocol to the Agreement establishing an Association between the European Economic Community and Malta (89/207/EEC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community, and in particular Article 238 thereof,  Having regard to the recommendation from the Commission,  Having regard to the assent of the European Parliament (1),  Whereas it is necessary to approve a supplementary Protocol to the Agreement establishing an Association between the European Economic Community and Malta (2), signed at Valletta on 5 December 1970, which adapts certain provisions of the Agreement,  HAS DECIDED AS FOLLOWS:     Article 1 The supplementary Protocol to the Agreement establishing an Association between the European Economic Community and Malta and Annexes I to VI thereto are hereby approved on behalf of the Community.  The text of the Protocol and its Annexes is attached to this Decision    Article 2 The President of the Council shall give the notification provided for in Article 5 of the Protocol (3).    Article 3 This Decision shall take effect on the day following that of its publication in the Official Journal of the European Communities.      Done at Brussels, 27 February 1989.  For the Council  The President  P. SOLBES  (1) OJ No C 69, 20.3.1989. (2) OJ No L 61, 14.3.1971, p. 2. (3) See page 80 of this Official Journal.