title: EFTA Surveillance Authority Decision No 277/15/COL of 6 July 2015 exempting certain logistic services of Posten Norge AS from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors [2016/488]

text:
               7.4.2016

               EN

               Official Journal of the European Union

               L 92/68

         EFTA SURVEILLANCE AUTHORITY DECISION
   No 277/15/COL
   of 6 July 2015
   exempting certain logistic services of Posten Norge AS from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors [2016/488]
   THE EFTA SURVEILLANCE AUTHORITY (‘THE AUTHORITY’),
   Having regard to the Act referred to at point 4 of Annex XVI to the EEA Agreement laying down the procedures for the award of public contracts in the utilities sector (Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (1)), and in particular Article 30(1), 30(5) and 30(6) thereof,
   Having regard to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (‘the Surveillance and Court Agreement’), in particular Articles 1 and 3 of Protocol 1 thereto,
   Having regard to the Decision of the Authority of 19 April 2012 empowering the Member with special responsibility for public procurement to take certain decisions in the field of public procurement (Decision No 136/12/COL),
   After consulting the EFTA Public Procurement Committee,
   Whereas:
   I.   FACTS

               (1)

               By letter of 20 March 2015 (2), and following pre-notification discussions, the Authority received a request from Posten Norge AS (‘Norway Post’) to the effect of adopting a decision establishing the applicability of Article 30(1) of Directive 2004/17/EC to certain logistic services. The Authority informed Norway of the receipt of this request (3). By letter of 1 June 2015 (4), Norway Post amended the scope of its request, following consultations with the Authority. By letters from the Authority of 10 June 2015, the EFTA Public Procurement Committee was consulted and asked to provide its view by written procedure (5). The EFTA Public Procurement Committee delivered a positive opinion by unanimous vote on the Authority's draft decision on 26 June 2015 (6).

               (2)

               The request by Norway Post as amended concerns the following logistic services as defined by Norway Post:

                           (a)

                           Standard Business-to-Business (‘B2B’) delivery of parcels — national, referring to the distribution of parcels weighing less than 35 kg sent from and delivered to businesses in Norway (including inbound parcels, referring to deliveries of parcels by a postal operator or logistics service provider in Norway on behalf of a postal operator or logistics service provider abroad).

                           (b)

                           Standard B2B delivery of parcels — international outbound, referring to the distribution of parcels weighing less than 35 kg sent from businesses in Norway to businesses abroad.

                           (c)

                           Express (‘Day 1’/in-night) delivery of parcels — national, referring to the distribution of parcels and goods to businesses in Norway, with a guaranteed delivery by the next day before a set deadline.

                           (d)

                           Express delivery of parcels — international (including inbound and outbound), referring to express transport of parcels to and from Norway.

                           (e)

                           Groupage goods or general cargo, referring to the distribution of goods weighing between 35 kg and 2,5 tonnes (not parcels) handled through a network of terminals, excluding thermo and bulk transport, and whereby multiple items are delivered to the same recipients.

                           (f)

                           Part load, referring to the distribution of goods exceeding 2 to 2,5 tonnes and which are not processed in terminals but delivered by road or rail, excluding thermo and bulk transport.

               (3)

               The request is accompanied by a report of the national competition authority, i.e. Konkurransetilsynet (‘the Norwegian Competition Authority’), which concluded that Norway Post was exposed to a significant degree of competition on all of the markets that have been notified to the Authority.

         II.   THE LEGAL FRAMEWORK

               (4)

               Article 30(1) of Directive 2004/17/EC allows for an exemption to the requirements of the rules on public procurement in a situation where the participants on a market are operating in a competitive environment. Article 30(1) of the Directive provides that:
               ‘Contracts intended to enable an activity mentioned in Articles 3 to 7 to be carried out shall not be subject to this Directive if, in the Member State in which it is performed, the activity is directly exposed to competition on markets to which access is not restricted.’

               (5)

               Article 30(1) of the Directive sets out two requirements which must both be met before the Authority may grant an exemption under Article 30(5), taking into account Article 30(6), of the Directive.

               (6)

               The first requirement in Article 30(1) of Directive 2004/17/EC is that the activity must be carried out on a market to which access is not restricted. According to Article 30(3) of the Directive, access to a market is deemed to be unrestricted if the Member State has implemented and applied the relevant EEA legislation opening a given sector or a part of it.

               (7)

               Article 30(5) of Directive 2004/17/EC allows the Authority to adopt decisions on the basis of Article 30(1) upon requests by contracting entities when the legislation of a State provides for it. This requirement is met with regard to Norway. Directive 2004/17/EC has been implemented into the Norwegian legal order by the Public Procurement Act of 16 July 1999 No 69 (7) and the Regulation No 403 of 7 April 2006 on procurement rules in the supply sectors (water and energy supply, transport and postal services) (8). Section 15-1 of Regulation No 403 states the conditions and the procedure for applying Article 30 of the Directive to Norwegian contracting entities. Regulation No 403 provides that contracting entities can require the Authority to adopt a decision on the applicability of Article 30(1) of Directive 2004/17/EC to a given activity in Norway. Before the application is submitted, the contracting entities can, where appropriate, obtain a statement from the national competition authority.

               (8)

               The relevant EEA legislation pursuant to Article 30(3) of the Directive is, for the request at hand, referred to at point F of Annex XI to Directive 2004/17/EC, namely Directive 97/67/EC of the European Parliament and of the Council (9). Norway has implemented Directive 97/67/EC into its national legal order, as well as its first modifications introduced by amending Directive 2002/39/EC of the European Parliament and of the Council (10). However, the latest modifications to Directive 97/67/EC, introduced by amending Directive 2008/6/EC of the European Parliament and of the Council (11), have not been incorporated into the EEA Agreement to this date. In spite of this fact, the provisions contained in those latest amendments to Directive 97/67/EC do not affect the activities concerned by the request, and consequently there is no legal obstacle to consider that the presumption set out by Article 30(3) of the Directive 2004/17/EC is fulfilled.

               (9)

               The second requirement in Article 30(1) of the Directive 2004/17/EC is that the activity, in the EFTA State where it is performed, is directly exposed to competition. The question of whether an activity is directly exposed to competition is to be decided on the basis of ‘criteria that are in conformity with the EC Treaty on competition, such as the characteristics of the goods or services concerned, the existence of alternative goods or services, the prices and the actual or potential presence of more than one supplier of the goods or services in question’ (12).

               (10)

               The existence of direct exposure to competition is to be evaluated on the basis of various indicators, none of which is, per se, decisive. In respect of the markets concerned by this Decision, the market share of the main players on a given market constitutes one criterion which should be taken into account. Another criterion is the degree of concentration on those markets (13). Direct exposure to competition is assessed on the basis of objective criteria, taking account of the specific characteristics of the sector concerned. As the conditions vary for the different activities that are the subject of this Decision, a separate assessment is made for each relevant activity or market.

               (11)

               Although different market definitions might be envisaged in certain cases, it is not necessary to decide on the precise definition of the relevant market as regards a number of services listed in the notification submitted by Norway Post to the extent that the result of the assessment remains the same whether it is based on a narrow or a broader market definition.

               (12)

               This Decision is made solely for the purpose of granting an exemption pursuant to Article 30 of Directive 2004/17/EC and is without prejudice to the application of the rules on competition.

         III.   ASSESSMENT

               (13)

               It should be kept in mind that the aim of this Decision is to establish whether the services concerned by the request are exposed to such a level of competition (in markets to which access is not restricted within the meaning of Article 30 of Directive 2004/17/EC) which will ensure that, also in the absence of the discipline brought about by the detailed procurement rules set out in Directive 2004/17/EC, procurement for the pursuit of the activities concerned will be carried out in a transparent, non-discriminatory manner based on criteria allowing purchasers to identify the solution which overall is the economically most advantageous one.

               (14)

               In this context, it should be recalled that the markets defined are generally characterised by the presence of several logistics service providers. However, for the purposes of this Decision, and without prejudice to the application of competition law more generally, the analysis of exposure to competition will assess only whether or not the activities of Norway Post are currently exposed to competition in the markets to which access is not restricted.

               (15)

               As explained above, the Authority has to determine whether the activities concerned are directly exposed to competition. To this end, it has examined the evidence provided by Norway Post as well as information provided by the Norwegian Competition Authority, competitors and customers of Norway Post. It should be noted that the Authority has relied primarily on the market data provided by Norway Post to assess market shares and concentration levels. Some of the data were confirmed in the context of the Authority's market information gathering exercise, but the Authority was not able to confirm all of the market share data.

      Market definition — product market

               (16)

               In line with the European Commission's decisional practice in competition law cases (14), as well as in cases relating to exemptions pursuant to Article 30 of Directive 2004/17/EC (15) concerning parcel delivery services, the applicant has distinguished the relevant markets based on the following:

                           a.

                           Standard/deferred and express delivery of parcels, according to the time sensitivity of the shipment;

                           b.

                           Domestic and international deliveries of parcels;

                           c.

                           Business-to-Consumers (‘B2C’) and Business-to-Business (‘B2B’) deliveries of parcels; and

                           d.

                           Parcels and freight, according to weight, format and the handling equipment needed.

      Market definition — geographic market

               (17)

               The European Commission (‘the Commission’) has found in various competition decisions (16), but also in the context of Article 30 of Directive 2004/17/EC (17), that the geographical markets for domestic and international B2B parcel delivery services, national and international express services, and general cargo/groupage (or light goods) and part-load services were national in scope. With respect to some of these markets, the Commission had considered whether these markets could be wider than national, but eventually did not conclude on this point (18). This segmentation is mainly based on the fact that such services are provided at national level. The applicant's position is in line with the above-mentioned Commission's practice.

               (18)

               The Norwegian Competition Authority has come to the conclusion that the precise geographical definition of the relevant market can be left open as the result of the analysis would remain the same regardless of whether it is based on a narrow or broad market definition (19).

               (19)

               Given that there are no indications of a wider or smaller geographical scope of the markets, for the purposes of evaluating whether the conditions laid down in Article 30(1) of Directive 2004/17/EC are fulfilled, and without prejudice to competition law, the Authority considers the relevant geographical markets for the purposes of this Decision to extend to the territory of Norway.

               (20)

               The issues are addressed in further detail below by reference to the product markets that have been notified by Norway Post.

         1.1.   The standard B2B parcel delivery market — national

   1.1.1.   Relevant product market

               (21)

               The applicant has submitted that the B2B standard national parcel delivery market should be defined as the distribution of parcels weighing less than 35 kg between businesses and delivered in Norway (including inbound parcels, referring to deliveries of parcels by a postal operator or logistics service provider in Norway on behalf of a postal operator or logistics service provider abroad) (20).

               (22)

               In its Norway Post/Privpak decision (21), the Authority found that B2B parcel delivery services are used by business customers that require door-to-door delivery to other businesses within working hours. Such business customers are time sensitive and are prepared to pay a significantly higher price for such services. The Authority determined that the B2B parcel delivery services have different characteristics, prices and intended uses compared to the B2C parcel delivery services (22). This conclusion appears to be in line with Commission practice where the Commission has defined separate parcel delivery markets for business customers and private customers because B2B and B2C deliveries were not considered to be substitutable (23).

               (23)

               The applicant also distinguishes the B2B parcel delivery services market from the freight market because of the differences in handling and prices. The parcel-sorting facilities of B2B service providers are subject to a weight limitation based on a single person being able to lift each parcel and also on each parcel lending itself to machine handling. The applicant states that parcels weighing more than 35 kg are not handled in the same sorting facility as parcels weighing less and service providers appear to apply weight limitations in the region of 30 to 35 kg (24).

               (24)

               This is consistent with the Commission's practice where a separate product market for small package delivery services was identified. It has been considered that there is a separate product market for small package delivery services for which 31.5 kg appeared an appropriate threshold to distinguish small packages from freight. This is because freight and small packages are usually transported via different infrastructures which are designed in a different way. According to a market investigation conducted by the Commission in one of its recent cases, the respondents confirmed that there is no uniform weight limit across the industry to determine which units are acceptable in a small package network. However, most competitors mentioned weight limits ranging between 25 and 35 kg (25).

               (25)

               Moreover, in Norway Post's view, national and international standard B2B parcel delivery services also constitute two separate product markets. International outbound parcels normally require the involvement of two service providers and different infrastructures (26). This is again in line with the Commission's decisions, where the market has been distinguished between domestic and international small package delivery services (27).

               (26)

               The applicant considers that the domestic B2B parcels delivery services and the international inbound parcels delivery services are part of the same market. There appears to be a number of Commission decisions where such international inbound delivery appears to have been included in the national market (28). Whether these markets are considered separately or as part of the same market will not affect the final assessment so no further distinction will be made for the purpose of this Decision and the precise definition of the relevant market can thus be left open.

               (27)

               In view of the foregoing, the Authority concludes for the purpose of this Decision that there is a separate product market for the distribution of parcels weighing less than 35 kg between businesses in Norway.

         1.1.2.   Direct exposure to competition

               (28)

               Norway Post's market share on the B2B domestic market amounted to an estimated 35 % by value in 2013. The estimated combined market share of the three largest competitors amounted to 33 % which had been increasing every year since 2011. In this respect, PostNord had 13 %, Schenker had 11 % and UPS had 9 % by value in 2013 (29). In addition, Norway Post's competitors are international operators with the financial strength to expand and customers appear to use, to a large extent, tenders for the supply of services making it relatively easy to switch to a new service provider. The contract duration is also generally short and customers appear to have a low degree of loyalty towards their suppliers (30).

               (29)

               Although the Norwegian Competition Authority stated that it could not verify the market share data provided by Norway Post on the basis of the information in its possession, it concluded that Norway Post appeared to face competition from large international competitors and ‘is exposed to a not insignificant degree of competition in the market for standard [B2B] parcel services.’ (31).

               (30)

               On the basis of the above, and particularly taking into account the competitors' current market positions and financial strength, the Authority concludes that the standard national B2B parcel delivery market is directly exposed to competition.

         1.2.   The standard B2B parcel delivery market — international outbound

   1.2.1.   Relevant product market

               (31)

               The applicant argues that the B2B standard international parcel delivery market should be defined as the distribution of parcels sent from businesses in Norway to businesses abroad and should be distinguished from the national B2B parcel delivery market (32).

               (32)

               As stated in paragraph (16) above and in line with Commission practice (33), national and international standard parcel delivery services constitute two separate product markets. In addition, as mentioned above, the applicant is of the opinion that the international inbound parcel services market segment should be part of the national domestic B2B parcel services market, in line with a number of Commission decisions (34).

               (33)

               International outbound delivery involves the collection, international transport and delivery of parcels through an entirely different distribution network than domestic parcel delivery services. International outbound delivery normally engages two logistics service providers, one in the collection country and another in the destination country. In the collection country, a logistics service provider collects parcels for transport to several destination countries. The same or another logistics service provider then distributes the parcel to its final destination in the destination country.

               (34)

               In view of the foregoing, the Authority concludes for the purpose of this Decision that there is a separate product market for the distribution of parcels weighing less than 35 kg sent from businesses in Norway to businesses abroad.

         1.2.2.   Direct exposure to competition

               (35)

               On the market for international outbound B2B standard parcel services, Norway Post had a market share by value in 2013 of 9 % whereas the shares of its largest competitors were 26 % (DHL), 24 % (UPS) and 11 % (TNT) respectively (35). The presence of several stronger competitors on the market appears to represent a considerable degree of competitive pressure.

               (36)

               On the basis of the above, the Authority concludes that the international outbound B2B standard parcel services market is directly exposed to competition. This conclusion is in line with the Norwegian Competition Authority's assessment (36).

         1.3.   The express Day 1/in-night parcel delivery market — national

   1.3.1.   Relevant product market

               (37)

               According to the applicant, there is a separate market for the distribution of parcels and goods to businesses in Norway with a guaranteed delivery by the next morning before a set deadline. Such express services, referred to as Day 1 or in-night services by the applicant, constitute a separate product market from the standard B2B service with delivery deadline by the following afternoon. The express Day 1/in-night service is two to three times more expensive than the standard or deferred B2B service (37).

               (38)

               As mentioned above, the delineation of a separate product market for express deliveries of parcels, on the basis of the speed of delivery, appears to be in line with the Commission's decisional practice (38). The distinction is based on the fact that the two services are provided using different infrastructures and networks, that express services are faster and more reliable and that express delivery services are also considerably more expensive. Express services are typically overnight, time-certain and include a number of the following value-added services: proof of delivery, track and trace, possibility of changing destination or address in transit, desk-to-desk delivery, flexible billing and pricing, insurance and money-back guarantee (39). Although there may be variations in delivery times as regards different express delivery services (as opposed to the differences between express and deferred parcel delivery services), the Commission has recently concluded that such different services do not constitute separate product markets but are segments within the broader express market (40).

               (39)

               In view of the foregoing, the Authority concludes for the purpose of this Decision that there is a separate product market for express delivery of parcels and goods to businesses in Norway.

         1.3.2.   Direct exposure to competition

               (40)

               Norway Post's market share in 2013 for the national express market amounted to an estimated 28 % by value whereas PostNord's market share amounted to 33 %, Jetpak 11 % and Schenker 12 %. Norway Post's market share has been declining since 2011. Several international companies are active in this market and many customers organise tenders before entering into contracts with service providers (41). Given these factors, and in line with the Norwegian Competition Authority's assessment and conclusion (42), the Authority concludes that the national express parcel delivery market is directly exposed to competition.

         1.4.   The express parcel delivery market — international (including inbound and outbound)

   1.4.1.   Relevant market

               (41)

               The applicant considers that there is a separate market for the express transport of parcels and goods to and from Norway (43). Such market delineation appears again to be in line with the Commission's decisional practice (44). Indeed, the Commission has held that the international delivery of parcels involves the collection, international transportation and delivery of parcels through an entirely different distribution network (45). International express services require a significantly higher number of destinations, specific and complex logistics, more qualified personnel and the ability to deal with additional regulatory requirements. Even when some players are active both on the domestic as well as on the international express markets, their businesses tend to be organised separately. Therefore, from a supplier's perspective, the sales, marketing and operations of international and domestic express services are very different (46). International express delivery has also been distinguished from domestic express delivery due to the national nature of infrastructure (47).

               (42)

               In view of the foregoing, the Authority concludes for the purpose of this Decision that there is a separate product market for international express delivery of parcels.

         1.4.2.   Direct exposure to competition

               (43)

               On the market for the international express delivery of parcels, Norway Post had a market share by value of 4,4 % in 2013 whereas it faces strong competition from major international companies, such as DHL with a market share of 38 %, TNT with 21 % and UPS with 19 % (48). Norway Post's market share is low compared to its competitors and has been declining since 2011. Given these factors, and in line with the Norwegian Competition Authority's assessment and conclusion (49), the Authority concludes that the international parcel express delivery market is directly exposed to competition.

         1.5.   Freight forwarding by land — general cargo/groupage

   1.5.1.   Relevant product market

               (44)

               The applicant argues that there is a separate market for freight forwarding — general cargo, referring to the distribution of goods weighing between 35 kg and 2,5 tonnes which are handled through a network of terminals. According to the applicant, thermo and bulk transport should be excluded from this market (50).

               (45)

               The applicant distinguishes the transport of B2B parcels from the transport of freight because freight requires a different handling equipment than parcels, which are typically handled in sorting facilities capable of handling large volumes with weight limitations of up to 30 to 35 kg, in an automated manner and in standardised formats. Freight, on the contrary, is typically characterised by larger and heavier items that need specialised handling equipment (such as forklifts etc.). In addition, freight transport is also subject to different pricing models than parcels transport, often leading to lower prices for freight deliveries (51).

               (46)

               In addition, the applicant is of the view that the freight market can be separated into a market for general cargo/groupage and a market for heavier cargo or so-called part load. This distinction is based on differences in price but more importantly on the fact that these products require a different network or infrastructure for transport and handling. General cargo or groupage needs a terminal network as it is handled in terminals whereas part load requires broad vehicle cover as these items are generally sent directly from the sender to the recipient.

               (47)

               Although the Commission has not adopted a final position on the definition of the relevant market in the freight-forwarding services, it has in a number of cases clearly distinguished between parcel and freight-delivery services, according to weight, format and the handling equipment needed (parcel services aimed at handling high volumes of items that must be of limited weight and standardised format, whereby handling and transport are standardised to achieve low unit costs) (52). Freight forwarding has been defined in the Commission's practice as the organisation of transportation of items (possibly including ancillary services such as customs clearance, warehousing, ground services, etc.) on behalf of customers according to their needs (53).

               (48)

               In addition, in an exemption decision pursuant to Article 30 of Directive 2004/17/EC, the Commission made a distinction between the market for light good services, defined as the transportation of single consignments in transportation units of 35 kg to 2,5 tonnes, and the market for freight services, defined as transportation services concerning heavy container loads, over 5 tonnes or heavy container loads of 2,5 to 5 tonnes (54). This reasoning appears to be in line with a Commission merger decision where a further segmentation within freight forwarding by road transport was made according to the categories ‘less than truck load or groupage’, ‘semi-truck load or part load’ and ‘full-truck load’. ‘Less than truck load or groupage’ was defined as everything bigger than a parcel but less than 2 tonnes whereas ‘semi-truck load or part load’ was defined as freight above 2 tonnes up to a full-truck load. ‘Full-truck load’ includes any freight that fills a whole truck. The Commission stated that the different handling requirements suggested separate product markets as the infrastructure and market participants were different. Ultimately, the Commission found it unnecessary to exactly delineate the markets as even on the narrowest possible market definition, there were no indications that the parties would become dominant (55).

               (49)

               Although the Commission has considered a further sub-segmentation of freight-forwarding services, according to the type of operations, into domestic and international freight forwarding, as well as according to the type of forwarding means into freight forwarding by air, land and sea (56), the Authority finds it unnecessary in the present case to delineate the relevant product markets beyond the definition outlined above. Similarly, whether bulk and thermo are considered separately or as part of the freight forwarding — general cargo market will also not affect the final assessment so no further distinction will be made for the purpose of this Decision and the precise definition of the relevant market can thus be left open.

         1.5.2.   Direct exposure to competition

               (50)

               On the market for freight forwarding — general cargo, Norway Post had a market share by value in 2013 of 10 % whereas Schenker had 13 % and PostNord 12 %. Norway Post's market share was stable in the period 2011-2013 and the same applied to its main competitors (57). In addition, many large international operators are active on this market and exert significant competitive pressure on Norway Post. Given these factors, and in line with the Norwegian Competition Authority's assessment and conclusion (58), the Authority concludes that the market for freight forwarding — general cargo is directly exposed to competition.

         1.6.   Freight forwarding by land — Part load

   1.6.1.   Relevant product market

               (51)

               In line with the arguments put forward under Section 1.5.1, the applicant argues that there is a separate market for freight forwarding — part load, referring to the distribution of goods exceeding 2 to 2,5 tonnes, not processed in terminals but rather transported by road or rail directly from the sender to the recipient. Here again, the applicant argues that thermo and bulk transport should be excluded from this market definition (59).

               (52)

               Regardless of whether or not the relevant product market is defined narrowly or broadly, the final assessment will not be affected. Therefore, the Authority finds it unnecessary to further delineate the relevant product markets beyond the definition outlined above and will assess whether Norway Post is directly exposed to competition on the market for freight forwarding — part load, excluding thermo and bulk transport.

         1.6.2.   Direct exposure to competition

               (53)

               On the market for freight forwarding — part load, Norway Post had a market share by value in 2013 of 16 % whereas Schenker had 11 % and PostNord 9 %. Norway Post's market share had been decreasing slightly since 2011. In addition, many large international operators are active on this market and exert significant competitive pressure on Norway Post (60). In line with the Norwegian Competition Authority's assessment and conclusion (61), the Authority finds that these factors should be taken as an indication that the market for freight forwarding — part load is directly exposed to competition.

         IV.   CONCLUSIONS

               (54)

               In view of the abovementioned indicators, the condition of direct exposure to competition laid down in Article 30(1) of Directive 2004/17/EC is met in respect of the following services provided in Norway:

                           (a)

                           standard B2B parcel delivery (national);

                           (b)

                           standard B2B parcel delivery (international outbound);

                           (c)

                           express Day 1/in-night parcel delivery (national);

                           (d)

                           express parcel delivery (international, including inbound and outbound);

                           (e)

                           freight forwarding by land (general cargo/groupage);

                           (f)

                           freight forwarding by land (part load).

               (55)

               Since the condition of unrestricted access to the market is deemed to be met, Directive 2004/17/EC shall not apply when contracting entities award contracts intended to enable the provision of services listed in points (a) to (f) of recital 54 in Norway, nor when design contests are organised for the pursuit of such activity in Norway.

               (56)

               This Decision is based on the information submitted before the Authority. It may be revised, should significant changes in the legal or factual situation mean that the conditions for the applicability of Article 30(1) of Directive 2004/17/EC are no longer met.

               (57)

               This Decision is made solely for the purpose of granting an exemption pursuant to Article 30 of Directive 2004/17/EC and is without prejudice to the application of the rules on competition.

               (58)

               This Decision does not preclude the applicability of EEA rules on public procurement in areas not covered by its scope. Furthermore, it is recalled that procurement contracts covering several activities should be treated in accordance with Article 9 of Directive 2004/17/EC. This means that, where a contracting entity is engaged in ‘mixed’ procurement, that is procurement used to support the performance of both activities exempted from the application of Directive 2004/17/EC and activities not exempted, regard must be had to the activities for which the contract is principally intended. In the event of such mixed procurement, where the purpose is principally to support activities which were not exempted, the provisions of Directive 2004/17/EC are to be applied. Where it is objectively impossible to determine for which activity the contract is principally intended, the contract is to be awarded in accordance with the rules referred to in Article 9(2) and (3) of Directive 2004/17/EC.

               (59)

               The measures provided for in this Decision are in accordance with the opinion of the EFTA Public Procurement Committee,

         HAS ADOPTED THIS DECISION:
   Article 1
   The Act referred to at point 4 of Annex XVI to the Agreement on the European Economic Area laying down the procedures for the award of public contracts in the utilities sector Directive 2004/17/EC shall not apply to contracts awarded by contracting entities and intended to enable the following services to be carried out in Norway:

               (a)

               standard B2B parcel delivery (national);

               (b)

               standard B2B parcel delivery (international outbound);

               (c)

               express Day 1/in-night parcel delivery (national);

               (d)

               express parcel delivery (international, including inbound and outbound);

               (e)

               freight forwarding by land (general cargo/groupage);

               (f)

               freight forwarding by land (part load).

         Article 2
   This decision is addressed to the Kingdom of Norway.

      Done at Brussels, 6 July 2015.

            For the EFTA Surveillance Authority

         Helga JÓNSDÓTTIR

            College Member

         Markus SCHNEIDER

            Acting Director

      (1)  OJ L 134, 30.4.2004, p. 1.

      (2)  Received by the Authority on 23 March 2015 — See Document No 752259.

      (3)  Document Nos 760094, 757507, 758208.

      (4)  Document No 758924.

      (5)  Document Nos 758020, 759785, 759788.

      (6)  Document No 762175.

      (7)  Lov 16. juli 1999 nr. 69 om offentlige anskaffelser.

      (8)  Forskrift 7. april 2006 nr. 403 om innkjopsregler i forsyningssektorene (vann- og energiforsyning, transport og posttjenester).

      (9)  Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ L 15, 21.1.1998, p. 14). Act referred to at point 5d of Annex XI to the EEA Agreement.

      (10)  Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (OJ L 176, 5.7.2002, p. 21). Act referred to at point 5d of Annex XI to the EEA Agreement.

      (11)  Directive 2008/6/EC of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (OJ L 52, 27.2.2008, p. 3).

      (12)  Article 30(2) of Directive 2004/17/EC.

      (13)  See also the Authority's Decision No 189/12/COL of 22 May 2012 exempting the production and wholesale of electricity in Norway from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ L 287, 18.10.2012, p. 21 and EEA Supplement No 58, 18.10.2012, p. 14).

      (14)  Commission Decision No IV/M.1549 of 8 July 1999Deutsche Post/ASG, paragraph 10; Commission Decision COMP/M.3155 of 19 June 2003Deutsche Post/Securicor, paragraph 8; Commission Decision COMP/M.5152 of 21 April 2009Posten AB/Post Danmark A/S, paragraphs 49 to 63; and Commission Decision COMP/M.6570 of 30 January 2013UPS/TNT Express, paragraphs 156 and 164.

      (15)  Commission Implementing Decision 2013/154/EU of 22 March 2013 exempting certain services in the postal sector in Hungary from the application of Directive 2004/17/EC of the European Parliament and of the Council (OJ L 86, 26.3.2013, p. 22), paragraphs 9 and 18; Commission Decision 2010/142/EU of 3 March 2010 exempting certain services in the postal sector in Austria from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services (OJ L 56, 6.3.2010, p. 8), paragraphs 9 to 14; Commission Decision 2009/46/EC of 19 December 2008 exempting certain services in the postal sector in Sweden from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ L 19, 23.1.2009, p. 50), paragraphs 16 to 24; and Commission Decision 2007/564/EC of 6 August 2007 exempting certain services in the postal sector in Finland from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ L 215, 18.8.2007, p. 21), paragraphs 17 to 23.

      (16)  Commission Decision COMP/M.1347 of 23 February 1999Deutsche Post/Securicor, paragraphs 32 to 34; Commission Decision IV/M.1405 of 15 February 1999TNT Post Group/Jet Services, paragraphs 29 to 31; Commission Decision IV/M.1513 of 1 July 1999Deutsche Post/Danzas/Nedlloyd, paragraphs 15 to 19; Commission Decision COMP/M.1549 of 8 July 1999Deutsche Post/ASG, paragraphs 15 to 18; Commission Decision COMP/M.2908 of 21 October 2002Deutsche Post/DHL (II), paragraphs 19 and 20; Commission Decision COMP/M.3155 of 19 June 2003Deutsche Post/Securicor, paragraph 11; Commission Decision COMP/M.3971 of 24 November 2005Deutsche Post/Exel, paragraphs 31 to 32; Commission Decision COMP/M.5152 of 21 April 2009, Posten AB/Post Danmark A/S, paragraphs 64 to 74; Commission Decision COMP/M.6503 of 4 July 2012La Poste/Swiss Post/JV, paragraphs 53 to 56; and Commission Decision COMP/M.6570 of 30 January 2013UPS/TNT Express, paragraphs 241 to 243.

      (17)  Commission Decision 2013/154/EU, paragraph 19.

      (18)  Commission Decision COMP/M.3971 of 24 November 2005Deutsche Post/Exel, paragraphs 25 to 27.

      (19)  See the Position of the Norwegian Competition Authority dated 29 January 2015 (Document No 746121), page 4.

      (20)  See Norway Post's application, page 23.

      (21)  EFTA Surveillance Authority Decision No 322/10/COL of 14 July 2010, Norway Post/Privpak.

      (22)  EFTA Surveillance Authority Decision No 322/10/COL of 14 July 2010, Norway Post/Privpak, section 12.1.2, paragraph 360.

      (23)  Commission Decision COMP/M.5152 of 21 April 2009Posten AB/Post Danmark A/S, paragraphs 58 to 63; Commission Decision 2009/46/EC, paragraphs 17 and 18; and Commission Decision No 2007/564/EC, paragraphs 17 and 18.

      (24)  See Norway Post's application, page 26.

      (25)  Commission Decision COMP/M.6570 of 30 January 2013UPS/TNT Express, paragraphs 159 to 164 and Commission Decision IV/M.1513 of 1 July 1999Deutsche Post/Danzas/Nedlloyd, paragraph 10.

      (26)  See Norway Post's application, page 25.

      (27)  Commission Decision COMP/M.6570 of 30 January 2013UPS/TNT Express, paragraphs 165 to 182 and Commission Decision COMP/M.5152 of 21 April 2009Posten AB/Post Danmark A/S, paragraphs 54 to 74.

      (28)  Commission Decision COMP/M.5152 of 21 April 2009Posten AB/Post Danmark A/S, paragraph 54 to 57. See also Commission Decision 2010/142/EU, paragraphs 10 and 11 and Implementing Commission Decision 2014/184/EU of 2 April 2014 exempting certain services in the postal sector in Austria from the application of Directive 2004/17/EC of the European Parliament and of the Council coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ L 101, 4.4.2014, p. 4), paragraphs 29, 44 and 45 (in respect of mail delivery deliveries).

      (29)  See Norway Post's application, pages 102-105.

      (30)  See Norway Post's application, page 107 and 115.

      (31)  See the Position of the Norwegian Competition Authority dated 29 January 2015 (Document No 746121), page 6.

      (32)  See Norway Post's application, page 25.

      (33)  Commission Decision COMP/M.5152 of 21 April 2009Posten AB/Post Danmark A/S, paragraphs 54 to 74; and Commission Decision COMP/M.6570 of 30 January 2013UPS/TNT Express, paragraphs 165 to 182.

      (34)  See paragraph 26 above.

      (35)  See Norway Post's application, pages 119 and 121.

      (36)  See the Position of the Norwegian Competition Authority dated 29 January 2015 (Document No 746121), page 6.

      (37)  See Norway Post's application, pages 53-54.

      (38)  Commission Decision COMP/M.3971 of 24 November 2005Deutsche Post/Exel, paragraphs 21 and 22; Commission Decision COMP/M.5152 of 21 April 2009Posten AB/Post Danmark A/S, paragraphs 50 to 53; Commission Decision COMP/M.6570 of 30 January 2013UPS/TNT Express, paragraphs 188 to 219. See also Commission Implementing Decision 2013/154/EU, paragraph 9; Commission Decision 2010/142/EU, paragraph 11; Commission Decision 2009/46/EC, paragraph 19; and Commission Decision 2007/564/EC, paragraph 19.

      (39)  Commission Decision COMP/M.3971 of 24 November 2005Deutsche Post/Exel, paragraph 21.

      (40)  Commission Decision COMP/M.6570 of 30 January 2013UPS/TNT Express, paragraphs 220 to 226.

      (41)  See Norway Post's application, pages 134-147.

      (42)  See the Position of the Norwegian Competition Authority dated 29 January 2015 (Document No 746121), page 6.

      (43)  See Norway Post's application, page 23 and 148.

      (44)  Commission Decision COMP/M.2908 of 21 October 2002Deutsche Post/DHL (II), paragraphs 10 to 18; Commission Decision COMP/M.3971 of 24 November 2005Deutsche Post/Exel, paragraph 22; Commission Decision COMP/M.5152 of 21 April 2009Posten AB/Post Danmark A/S, paragraphs 54 to 57; and Commission Decision COMP/M.6570 of 30 January 2013UPS/TNT Express, paragraphs 165 to 187. See also Commission Decision 2013/154/EU, paragraph 9; and Commission Decision No 2007/564/EC, paragraph 19.

      (45)  Commission Decision COMP/M.5152 of 21 April 2009Posten AB/Post Danmark A/S, paragraph 55.

      (46)  Commission Decision COMP/M.3971 of 24 November 2005Deutsche Post/Exel, paragraph 22.

      (47)  Commission Decision COMP/M.2908 of 21 October 2002Deutsche Post/DHL (II), paragraph 12.

      (48)  See Norway Post's application, pages 150 to 151.

      (49)  See the Position of the Norwegian Competition Authority dated 29 January 2015 (Document No 746121), page 6-7.

      (50)  Norway Post defines thermal transport as transportation of goods with a certain temperature (i.e. cold), carried out by specially equipped vehicles, at special prices and on special routes in frequent use (Norway Post's application page 29). Norway Post defines bulk transport as transportation of unpackaged goods, often liquid, gas or granulated form, unsuitable for transportation together with other types of goods (such as gravel, soil, fertilizer, oil and gas) requiring special types of vehicles such as specially equipped tanks or open trucks/trailers (Norway Post's letter dated 13 May 2015, Document No 757562).

      (51)  See Norway Post's application, page 23 and 26.

      (52)  Commission Decision IV/M.1513 of 1 July 1999Deutsche Post/Danzas/Nedloyd, paragraph 10; Commission Decision IV/M.1549 of 8 July 1999Deutsche Post/ASG, paragraph 10; Commission Decision COMP/M.2908 of 21 October 2002Deutsche Post/DHL (II), paragraph 10; and Commission Decision COMP/M.6570 of 30 January 2013UPS/TNT Express, paragraphs 159 to 164.

      (53)  Commission Decision COMP/M.1794 of 7 February 2000Deutsche Post/Air Express International, paragraph 8; and Commission Decision COMP/M.5152 of 21 April 2009Posten AB/Post Danmark A/S, paragraphs 108 to 110.

      (54)  Commission Decision 2007/564/EC, paragraph 20.

      (55)  Commission Decision IV/M.1549 of 8 July 1999Deutsche Post/ASG, paragraphs 11 to 13. See also Commission Decision COMP/M.1513 of 1 July 1999Deutsche Post/Danzas/Nedloyd, paragraph 11, last sentence.

      (56)  Additionally, the Commission has argued that freight forwarding by land can be sub-segmented into freight forwarding by rail and by road. See Commission Decision COMP/M.1794 of 7 February 2000Deutsche Post/Air Express International, paragraph 8 to 11; and Commission Decision COMP/M.5152 of 21 April 2009Posten AB/Post Danmark A/S, paragraphs 108 to 110.

      (57)  See Norway Post's application, pages 166 and 168.

      (58)  See the Position of the Norwegian Competition Authority dated 29 January 2015 (Document No 746121), page 7.

      (59)  See Norway Post's application, page 23.

      (60)  See Norway Post's application, page 183 to 195.

      (61)  See footnote 58.


title: Decision (EU) 2016/457 of the European Central Bank of 16 March 2016 on the eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus (ECB/2016/5)

text:
               30.3.2016

               EN

               Official Journal of the European Union

               L 79/41

         DECISION (EU) 2016/457 OF THE EUROPEAN CENTRAL BANK
   of 16 March 2016
   on the eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus (ECB/2016/5)
   THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,
   Having regard to the Treaty on the Functioning of the European Union, and in particular the first indent of Article 127(2) thereof,
   Having regard to the Statute of the European System of Central Banks and of the European Central Bank, and in particular the first indent of Article 3.1, Article 12.1, Article 18 and the second indent of Article 34.1 thereof,
   Having regard to Guideline (EU) 2015/510 of the European Central Bank of 19 December 2014 on the implementation of the Eurosystem monetary policy framework (General Documentation Guideline) (ECB/2014/60) (1), and in particular Article 1(4), Titles I, II, IV, V, VI and VIII of Part Four, and Part Six thereof,
   Having regard to Guideline ECB/2014/31 of 9 July 2014 on additional temporary measures relating to Eurosystem refinancing operations and eligibility of collateral and amending Guideline ECB/2007/9 (2), and in particular Article 1(3) and Article 8 thereof,
   Whereas:

               (1)

               Pursuant to Article 18.1 of the Statute of the European System of Central Banks and of the European Central Bank, the European Central Bank (ECB) and the national central banks of Member States whose currency is the euro may conduct credit operations with credit institutions and other market participants, with lending being based on adequate collateral. The standard criteria and minimum credit quality requirements determining the eligibility of marketable assets as collateral for the purposes of Eurosystem monetary policy operations are laid down in Guideline (EU) 2015/510 (ECB/2014/60) and in particular in Article 59 and in Part Four, Title II thereof.

               (2)

               Pursuant to Article 1(4) of Guideline (EU) 2015/510 (ECB/2014/60), the Governing Council may, at any time, change the tools, instruments, requirements, criteria and procedures for the implementation of Eurosystem monetary policy operations. Pursuant to Article 59(6) of Guideline (EU) 2015/510 (ECB/2014/60), the Eurosystem reserves the right to determine whether an issue, issuer, debtor or guarantor fulfils the Eurosystem's credit quality requirements on the basis of any information that the Eurosystem may consider relevant for ensuring adequate risk protection of the Eurosystem.

               (3)

               By way of derogation from the Eurosystem's credit quality requirements for marketable assets, Article 8 of Guideline ECB/2014/31 provides that the Eurosystem's credit quality thresholds do not apply to marketable debt instruments issued or fully guaranteed by the central governments of euro area Member States under an European Union/International Monetary Fund programme, unless the Governing Council decides that the respective Member State does not comply with the conditionality of the financial support and/or the macroeconomic programme.

               (4)

               As an exceptional measure, Decision ECB/2013/13 (3) temporarily suspended the Eurosystem's minimum requirements for credit quality thresholds applicable to marketable debt instruments issued or fully guaranteed by the Republic of Cyprus. After the Republic of Cyprus completed a debt management exercise and there was confirmation that it was complying with the conditionality of the economic and financial adjustment programme it had entered into, Decision ECB/2013/22 (4) once again restored the eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus for Eurosystem monetary policy operations, subject to applying specific haircuts to such instruments, and provided that the Republic of Cyprus should be considered a euro area Member State compliant with a European Union/International Monetary Fund programme.

               (5)

               Currently, Article 1(3) of Guideline ECB/2014/31 provides that, for the purposes of Article 8 of that Guideline, the Republic of Cyprus should be considered a euro area Member State compliant with a European Union/International Monetary Fund programme. Moreover, Article 8(3) of that Guideline provides that marketable debt instruments issued or fully guaranteed by the Republic of Cyprus are subject to the specific haircuts set out in Annex II to that Guideline.

               (6)

               Pursuant to a request made by the Republic of Cyprus, its International Monetary Fund programme was cancelled with effect from 7 March 2016 (5). Pursuant to Article 1 of the Financial Assistance Facility Agreement between the European Stability Mechanism (ESM), the Republic of Cyprus and the Central Bank of Cyprus (6), the termination date of the ESM programme is 31 March 2016. Consequently, from 1 April 2016 the Republic of Cyprus can no longer be considered a Member State under a European Union/International Monetary Fund programme. From that date, the conditions for the temporary suspension of the Eurosystem's credit quality thresholds in respect of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus, as set out in Article 8(2) of Guideline ECB/2014/31, will no longer be fulfilled.

               (7)

               Therefore, the Governing Council has decided that from 1 April 2016 the Eurosystem's standard criteria and credit quality thresholds should apply in respect of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus and that such debt instruments will be subject to the standard haircuts set out in Guideline (EU) 2016/65 of the European Central Bank (ECB/2015/35) (7),

         HAS ADOPTED THIS DECISION:
   Article 1
   Eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus
   1.   For the purposes of Article 8 of Guideline ECB/2014/31, the Republic of Cyprus shall no longer be considered a Member State under a European Union/International Monetary Fund programme.
   2.   The Eurosystem's minimum requirements for credit quality thresholds, as laid down in Guideline (EU) 2015/510 (ECB/2014/60) and in particular in Article 59 and in Part Four, Title II thereof, shall apply to marketable debt instruments issued or fully guaranteed by the Republic of Cyprus.
   3.   Marketable debt instruments issued or fully guaranteed by the Republic of Cyprus shall no longer be subject to the specific haircuts set out in Annex II to Guideline ECB/2014/31.
   4.   In the event of any discrepancy between this Decision and any of Guideline (EU) 2015/510 (ECB/2014/60) and Guideline ECB/2014/31, as implemented at national level by the national central banks of Member States whose currency is the euro, this Decision shall prevail.
   Article 2
   Entry into force
   This Decision shall enter into force on 1 April 2016.

      Done at Frankfurt am Main, 16 March 2016.

            The President of the ECB

         Mario DRAGHI

      (1)  OJ L 91, 2.4.2015, p. 3.

      (2)  OJ L 240, 13.8.2014, p. 28.

      (3)  Decision ECB/2013/13 of 2 May 2013 on temporary measures relating to the eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus (OJ L 133, 17.5.2013, p. 26).

      (4)  Decision ECB/2013/22 of 5 July 2013 on temporary measures relating to the eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus (OJ L 195, 18.7.2013, p. 27).

      (5)  Statement by Christine Lagarde, Managing Director of the International Monetary Fund, on Cyprus, 7 March 2016, Press Release No 16/94.

      (6)  Available on the ESM's website at www.esm.europa.eu

      (7)  Guideline (EU) 2016/65 of the European Central Bank of 18 November 2015 on the valuation haircuts applied in the implementation of the Eurosystem monetary policy framework (ECB/2015/35) (OJ L 14, 21.1.2016, p. 30).


title: Council Decision (EU) 2016/298 of 29 February 2016 on the position to be adopted by the European Union within the ACP-EU Committee of Ambassadors regarding approval of derogations to the Financial Regulation of the Centre for the Development of the Enterprise (CDE)

text:
               3.3.2016

               EN

               Official Journal of the European Union

               L 57/4

         COUNCIL DECISION (EU) 2016/298
   of 29 February 2016
   on the position to be adopted by the European Union within the ACP-EU Committee of Ambassadors regarding approval of derogations to the Financial Regulation of the Centre for the Development of the Enterprise (CDE)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 209(2) in conjunction with Article 218(9) thereof,
   Having regard to Annex III to 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 (1), and in particular Article 2(6) thereof,
   Having regard to Decision No 5/2004 of the ACP-EC Committee of Ambassadors of 17 December 2004 concerning the Financial Regulation of the Centre for the Development of Enterprise (2),
   Having regard to the proposal from the European Commission,
   Whereas:

               (1)

               At its 39th session from 19 to 20 June 2014 in Nairobi, Kenya, the ACP-EU Council of Ministers agreed, in a Joint Declaration, to proceed with the orderly closing of the Centre for the Development of Enterprise (‘CDE’), and to the amendment of Annex III to 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 (‘ACP-EU Partnership Agreement’) and to that end, to delegate powers to the ACP-EU Committee of Ambassadors to take the matter forward with a view to the adoption of the necessary decisions.

               (2)

               In its Decision No 4/2014 (3), the ACP-EU Committee of Ambassadors recalls that the closure of the CDE is to respect the competences of the CDE's supervisory authorities set out in Annex III to the ACP-EU Partnership Agreement and the detailed arrangements laid down by the ACP-EU Council of Ministers in its Joint Declaration.

               (3)

               Annex III to the ACP-EU Partnership Agreement requires the ACP-EU Committee of Ambassadors to monitor the overall strategy of the CDE and supervise the work of the Executive Board.

               (4)

               Annex III to the ACP-EU Partnership Agreement requires the CDE Executive Board to lay down the financial and staff regulations and the rules of operations.

               (5)

               The request from the CDE Executive Board to the ACP-EU Committee of Ambassadors by letter dated 19 October 2015 explains that, in the context of the closing down of the CDE, the CDE Executive Board wishes to derogate from Article 27(1) and (5) of Decision No 5/2004 of the ACP-EC Committee of Ambassadors of 17 December 2004 concerning the Financial Regulation of the Centre for the Development of Enterprise (‘CDE Financial Regulation’) and seeks prior approval from the supervisory authorities.

               (6)

               The modification of, or derogations to, the CDE Financial Regulation and CDE Staff Regulations (4), depending on the needs that may arise from the implementation of the orderly closure process of the CDE, necessitates a flexible procedure.

               (7)

               The requirement of the appointment of a firm of auditors for a period of three years, as set out in Article 27(1) of the CDE Financial Regulation, and the requirement for this firm to draw up each year a statutory audit report, in accordance with Article 27(5) of that Regulation, need to be adapted in order to ensure a more efficient procedure in the context of the closing-down of the organisation,

         HAS ADOPTED THIS DECISION:
   Article 1
   1.   The position to be adopted by the Union in the ACP-EU Committee of Ambassadors regarding the approval of the derogations to the CDE Financial Regulation shall be based on the draft Decision of the ACP-EU Committee of Ambassadors attached to this Decision.
   2.   Minor changes to the draft Decision may be agreed by the representatives of the Union in the ACP-EU Committee of Ambassadors without further decision of the Council.
   Article 2
   After its adoption, the Decision of the ACP-EU Committee of Ambassadors shall be published in the Official Journal of the European Union.
   Article 3
   This Decision shall enter into force on the date of its adoption.

      Done at Brussels, 29 February 2016.

            For the Council

            The President

         H.G.J. KAMP

      (1)  Agreement signed in Cotonou on 23 June 2000 (OJ L 317, 15.12.2000, p. 3), as amended by the Agreement signed in Luxembourg on 25 June 2005 (OJ L 209, 11.8.2005, p. 27) and by the Agreement signed in Ouagadougou on 22 June 2010 (OJ L 287, 4.11.2010, p. 3).

      (2)  OJ L 70, 9.3.2006, p. 52.

      (3)  Decision No 4/2014 of the ACP-EU Committee of Ambassadors of 23 October 2014 regarding the mandate to be given to the Executive Board of the Centre for the Development of Enterprise (CDE) (OJ L 330, 15.11.2014, p. 61).

      (4)  Decision No 9/2005 of the ACP-EC Committee of Ambassadors of 27 July 2005 concerning the Staff Regulations of the Centre for the Development of Enterprise (CDE) (OJ L 348, 30.12.2005, p. 54).

      DRAFT
      DECISION OF THE ACP-EU COMMITTEE OF AMBASSADORS
      of …
      on the approval of derogations to the Financial Regulation of the Centre for the Development of the Enterprise (CDE)
      THE ACP-EU COMMITTEE OF AMBASSADORS,
      Having regard to Annex III to 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 (1), and in particular Article 2(6) thereof,
      Having regard to Decision No 5/2004 of the ACP-EC Committee of Ambassadors of 17 December 2004 concerning the Financial Regulation of the Centre for the Development of Enterprise (2),
      Whereas:

                  (1)

                  Annex III to the ACP-EU 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, (ACP EU Partnership Agreement) requires the ACP-EU Committee of Ambassadors to monitor the overall strategy of the CDE and supervise the work of the Executive Board.

                  (2)

                  Annex III to the ACP-EU Partnership Agreement requires the CDE Executive Board to lay down the financial and staff regulations and the rules of operations.

                  (3)

                  The Statutes and Rules of Procedure of the Centre for the Development of Enterprise adopted by Decision No 8/2005 of the ACP-EU Committee of Ambassadors (3) (the ‘CDE Statutes’) and Decision No 5/2004 of the ACP-EC Committee of Ambassadors (‘CDE Financial Regulation’) (4) provide the safeguards in terms of information of and supervision by the ACP-EU Committee of Ambassadors.

                  (4)

                  At its 39th session held from 19 to 20 June in Nairobi, the ACP-EU Council of Ministers agreed, in a Joint Declaration, to proceed with the orderly closing of the CDE and to the amendment of Annex III to the ACP-EU Partnership Agreement and, to that end, to delegate powers to the ACP-EU Committee of Ambassadors to take the matter forward with a view to the adoption of the necessary decisions.

                  (5)

                  In its Decision No 4/2014 (5), the ACP-EU Committee of Ambassadors recalls that the closure of the CDE is to respect the competences of the CDE's supervisory authorities set out in Annex III to the ACP-EU Partnership Agreement and the detailed arrangements laid down by the ACP-EU Council of Ministers in its Joint Declaration.

                  (6)

                  The request from the CDE Executive Board to the ACP-EU Committee of Ambassadors by letter dated 19 October 2015 explains that in the context of the closing down of the CDE, the CDE Executive Board wishes to derogate from Article 27(1) and (5) of the CDE Financial Regulation, and seeks prior approval from the Supervisory Authorities.

                  (7)

                  The modification of or derogations to the CDE Financial Regulation and CDE Staff Regulations (6), depending on the needs that may arise from the implementation of the orderly closure process of the CDE, necessitates a flexible procedure.

                  (8)

                  The requirements of the appointment of a firm of auditors for a period of three years, as set out in Article 27(1) of the CDE Financial Regulation, and the requirement for this firm to draw up each year a statutory audit report, in accordance with Article 27(5) of that Regulation, need to be adapted in order to ensure a more efficient procedure in the context of the closing-down of the organisation,

            HAS ADOPTED THIS DECISION:
      Article 1
      1.   The ACP-EU Committee of Ambassadors gives its favourable opinion regarding the derogation from Article 27(1) and (5) of the CDE Financial Regulation, with immediate effect.
      2.   By derogation from Article 27(1) of the CDE Financial Regulation, the CDE shall be able to appoint a firm of auditors for a period of four years covering the financial years 2013 to 2016. This firm of auditors shall be selected in accordance with the procurement procedures foreseen in the CDE Financial Regulation.
      By derogation from Article 27(5) of the CDE Financial Regulation, a multiannual audit will be launched for the years not yet audited and a single final report will be presented to the CDE Executive Board.
      Article 2
      The ACP-EU Committee of Ambassadors authorises the CDE Executive Board to derogate from and/or to modify the CDE Financial Regulation and CDE Staff Regulation depending on the needs that may arise from the implementation of the orderly closure process of the CDE. The CDE Executive Board shall inform the ACP-EU Committee of Ambassadors of any such decision of derogation and /or modification of the CDE regulations immediately.
      Article 3
      This Decision shall enter into force on the day of its adoption.

         Done at …,

               For the ACP-EU Committee of Ambassadors

               The President

         (1)  Agreement signed in Cotonou on 23 June 2000 (OJ L 317, 15.12.2000, p. 3), as amended by the Agreement signed in Luxembourg on 25 June 2005 (OJ L 209, 11.8.2005, p. 27) and by the Agreement signed in Ouagadougou on 22 June 2010 (OJ L 287, 4.11.2010, p. 3).

         (2)  OJ L 70, 9.3.2006, p. 52.

         (3)  OJ EU L 66, 8.3.2006, p. 16.

         (4)  Decision No 5/2004 of the ACP-EC Committee of Ambassadors of 17 December 2004 concerning the Financial Regulation of the Centre for the Development of Enterprise (OJ L 70, 9.3.2006, p. 52).

         (5)  OJ L 330, 15.11.2014, p. 61.

         (6)  OJ L 348, 30.12.2005, p. 54.


title: 2005/512/EC: Council Decision of 12 July 2005 amending Decision 1999/70/EC concerning the external auditors of the national central banks as regards the external auditor of De Nederlandsche Bank

text:
               19.7.2005

               EN

               Official Journal of the European Union

               L 187/20

      COUNCIL DECISION

   of 12 July 2005
   amending Decision 1999/70/EC concerning the external auditors of the national central banks as regards the external auditor of De Nederlandsche Bank
   (2005/512/EC)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Protocol on the Statute of the European System of Central Banks and of the European Central Bank, annexed to the Treaty establishing the European Community, and in particular to Article 27.1 thereof,
   Having regard to Recommendation ECB/2005/9 of the European Central Bank of 20 May 2005 to the Council of the European Union on the external auditor of De Nederlandsche Bank (1),
   Whereas:

               (1)

               The accounts of the European Central Bank (ECB) and of the national central banks of the Eurosystem are to be audited by independent external auditors recommended by the Governing Council of the ECB and approved by the Council of the European Union.

               (2)

               The mandate of the current external auditors of De Nederlandsche Bank (hereinafter DNB) has expired and will not be renewed. It is therefore necessary to appoint an external auditor from the financial year 2005.

               (3)

               DNB has selected Josephus Andreas Nijhuis, Registered Accountant and chairman of the board of PricewaterhouseCoopers BV, acting in his personal capacity, as its new external auditor, and the ECB considers that the selected auditor fulfils the necessary requirements for appointment.

               (4)

               The Governing Council of the ECB recommended that the mandate of the external auditor should be for an indeterminate period, subject to his being reconfirmed each year.

               (5)

               It is appropriate to follow the recommendation of the Governing Council of the ECB and to amend Decision 1999/70/EC (2) accordingly,

         HAS DECIDED AS FOLLOWS:
   Article 1
   Article 1(8) of Decision 1999/70/EC shall be replaced by the following:

      ‘8.   Josephus Andreas Nijhuis, Registered Accountant and chairman of the board of PricewaterhouseCoopers BV, acting in his personal capacity, is hereby approved as the external auditor of De Nederlandsche Bank from the financial year 2005 for an indeterminate period, this period being subject to confirmation each year.’

   Article 2
   This Decision shall be notified to the European Central Bank.
   Article 3
   This Decision shall be published in the Official Journal of the European Union.

      Done at Brussels, 12 July 2005.

            For the Council

            The President

         G. BROWN

      (1)  OJ C 151, 22.6.2005, p. 29.

      (2)  OJ L 22, 29.1.1999, p. 69. Decision as last amended by Decision 2005/377/EC (OJ L 125, 18.5.2005, p. 8).


title: 2010/131/: Council Decision of 25 February 2010 on setting up the Standing Committee on operational cooperation on internal security

text:
               3.3.2010

               EN

               Official Journal of the European Union

               L 52/50

         COUNCIL DECISION
   of 25 February 2010
   on setting up the Standing Committee on operational cooperation on internal security
   (2010/131/EU)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard the Treaty on the Functioning of the European Union, and in particular Article 240(3) thereof,
   Whereas:

               (1)

               Article 71 of the Treaty on the Functioning of the European Union provides that a standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union.

               (2)

               It is therefore appropriate to adopt a Decision on the setting up of such a Committee and to define its tasks,

         HAS ADOPTED THIS DECISION:
   Article 1
   The Standing Committee on operational cooperation on internal security (hereinafter referred to as ‘the Standing Committee’) foreseen in Article 71 of the Treaty is hereby set up within the Council.
   Article 2
   The Standing Committee shall facilitate, promote and strengthen coordination of operational actions of the authorities of the Member States competent in the field of internal security.
   Article 3
   1.   Without prejudice to the mandates of the bodies referred to in Article 5, the Standing Committee shall facilitate and ensure effective operational cooperation and coordination under Title V of Part Three of the Treaty, including in areas covered by police and customs cooperation and by authorities responsible for the control and protection of external borders. It shall also cover, where appropriate, judicial cooperation in criminal matters relevant to operational cooperation in the field of internal security.
   2.   The Standing Committee shall also evaluate the general direction and efficiency of operational cooperation; it shall identify possible shortcomings or failures and adopt appropriate concrete recommendations to address them.
   3.   The Standing Committee shall assist the Council in accordance with the provisions of Article 222 of the Treaty.
   Article 4
   1.   The Standing Committee shall not be involved in conducting operations, which shall remain the task of the Member States.
   2.   The Standing Committee shall not be involved in preparing legislative acts.
   Article 5
   1.   When appropriate, representatives from Eurojust, Europol, the European Agency for the Management of Operational Cooperation at the External Borders of the EU Member States (Frontex) and other relevant bodies shall be invited to attend, as observers, the meetings of the Standing Committee.
   2.   The Standing Committee will help ensure consistency of action by those bodies.
   Article 6
   1.   The Standing Committee shall regularly submit a report to the Council on its activities.
   2.   The Council shall keep informed the European Parliament and the national Parliaments of the proceedings of the Standing Committee.
   Article 7
   This Decision shall enter into force on the date of its adoption.
   It shall be published in the Official Journal of the European Union.

      Done at Brussels, 25 February 2010.

            For the Council

            The President

         A. PÉREZ RUBALCABA


title: 2010/496/EU, Euratom: Decision of the European Parliament of 5 May 2010 on discharge in respect of the implementation of the budget of the Executive Agency for Competitiveness and Innovation for the financial year 2008

text:
               25.9.2010

               EN

               Official Journal of the European Union

               L 252/33

         DECISION OF THE EUROPEAN PARLIAMENT
   of 5 May 2010
   on discharge in respect of the implementation of the budget of the Executive Agency for Competitiveness and Innovation for the financial year 2008
   (2010/496/EU, Euratom)
   THE EUROPEAN PARLIAMENT,
   having regard to the European Union general budget for the financial year 2008 (1),
   having regard to the final annual accounts of the European Communities for the financial year 2008 — Volume I (SEC(2009) 1089 — C7-0172/2009) (2),
   having regard to the final annual accounts of the Executive Agency for Competitiveness and Innovation for the financial year 2008,
   having regard to the Commission’s annual report to the European Parliament on the follow-up to 2007 discharge decisions (COM(2009) 526), and to the Commission staff working document accompanying that report (SEC(2009) 1427),
   having regard to the Commission communication entitled ‘Synthesis of the Commission’s management achievements in 2008’ (COM(2009) 256),
   having regard to the Commission’s annual report to the discharge authority on internal audits carried out in 2008 (COM(2009) 419), and to the Commission staff working document accompanying that report (SEC(2009) 1102),
   having regard to the Court of Auditors’ report on the annual accounts of the Executive Agency for Competitiveness and Innovation for the financial year 2008, together with the Agency’s replies (3),
   having regard to the statement of assurance as to the reliability of the accounts and the legality and regularity of the underlying transactions, provided by the Court of Auditors pursuant to Article 248 of the EC Treaty (4),
   having regard to the Commission communication of 16 December 2008 on a common understanding of the concept of tolerable risk of error (COM(2008) 866), and to the Commission staff working document accompanying that communication (SEC(2008) 3054),
   having regard to the Council’s recommendation of 16 February 2010 on the discharge to be given to the executive agencies in respect of the implementation of the budget for the financial year 2008 (5828/2010 — C7-0055/2010),
   having regard to Articles 274, 275 and 276 of the EC Treaty, Articles 317, 318 and 319 of the Treaty on the Functioning of the European Union and Articles 179a and 180b of the Euratom Treaty,
   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 (5), and in particular Articles 55, 145, 146 and 147 thereof,
   having regard to Council Regulation (EC) No 58/2003 of 19 December 2002 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (6), and in particular Article 14(3) thereof,
   having regard to Commission Regulation (EC) No 1653/2004 of 21 September 2004 on a standard financial regulation for the executive agencies pursuant to Council Regulation (EC) No 58/2003 laying down the statute for executive agencies to be entrusted with certain tasks in the management of Community programmes (7), and in particular the first and second paragraphs of Article 66 thereof,
   having regard to Commission Decision 2004/20/EC of 23 December 2003 setting up an executive agency, the ‘Intelligent Energy Executive Agency’, to manage Community action in the field of energy in application of Council Regulation (EC) No 58/2003 (8),
   having regard to Commission Decision 2007/372/EC of 31 May 2007 amending Decision 2004/20/EC in order to transform the Intelligent Energy Executive Agency into the Executive Agency for Competitiveness and Innovation (9),
   having regard to Rule 76 of, and Annex VI to, its Rules of Procedure,
   having regard to the report of the Committee on Budgetary Control and the opinions of the other committees concerned (A7-0099/2010),

               A.

               whereas under Article 317 of the Treaty on the Functioning of the European Union the Commission implements the budget in cooperation with the Member States on its own responsibility, having regard to the principle of sound financial management,

               1.

               Grants the Director of the Executive Agency for Competitiveness and Innovation discharge in respect of the implementation of the Agency’s budget for the financial year 2008;

               2.

               Sets out its observations in the resolution that forms an integral part of the Decisions on discharge in respect of the implementation of the European Union general budget for the financial year 2008, Section III — Commission and executive agencies;

               3.

               Instructs its President to forward this decision, together with the Decision on discharge in respect of the implementation of the European Union general budget for the financial year 2008, section III — Commission and the resolution that forms an integral part of those Decisions, to the Director of the Executive Agency for Competitiveness and Innovation, the Council, the Commission, the Court of Justice of the European Union and the Court of Auditors, and to arrange for their publication in the Official Journal of the European Union (L series).

            The President

         Jerzy BUZEK

            The Secretary-General

         Klaus WELLE

      (1)  OJ L 71, 14.3.2008.

      (2)  OJ C 273, 13.11.2009, p. 1.

      (3)  OJ C 304, 15.12.2009, p. 77.

      (4)  OJ C 273, 13.11.2009, p. 122.

      (5)  OJ L 248, 16.9.2002, p. 1.

      (6)  OJ L 11, 16.1.2003, p. 1.

      (7)  OJ L 297, 22.9.2004, p. 6.

      (8)  OJ L 5, 9.1.2004, p. 85.

      (9)  OJ L 140, 1.6.2007, p. 52.