Avis juridique important

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31983D0065

83/65/EEC, Euratom, ECSC: Decision of the European Parliament of 14 January 1983 granting a discharge to the Commission in respect of the implementation of the budget of the European Communities for the 1980 financial year concerning Sections I - Parliament, II - Council, III - Commission, IV - Court of Justice, V - Court of Auditors

Official Journal L 046 , 18/02/1983 P. 0019 - 0024

*****DECISION  OF THE EUROPEAN PARLIAMENT  of 14 January 1983  granting a discharge to the Commission in respect of the implementation of the budget of the European Communities for the 1980 financial year concerning Sections I - Parliament, II - Council, III - Commission, IV - Court of Justice, V - Court of Auditors  (83/65/EEC, Euratom, ECSC)  THE EUROPEAN PARLIAMENT,  - having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 78g thereof,  - having regard to the Treaty establishing the European Economic Community, and in particular Article 206b thereof,  - having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 180b thereof,  - having regard to the revenue and expenditure accounts and the financial statements in respect of the budget for the 1980 financial year,  - having regard to the report of the Court of Auditors on the accounts for the 1980 financial year and the answers of the institutions to the report (Doc. 1-820/81) (1),  - having regard to the Council recommendation on the granting of a discharge to the Commission in respect of the implementation of the budget for the 1980 financial year,  - having regard to the reports of the Committee on Budgetary Control, the annexed working documents of the various Community policy sectors and the opinions of the Committee on Social Affairs and Employment, the Committee on Regional Policy and Regional Planning, the Committee on the Environment, Public Health and Consumer Protection, the Committee on Youth, Culture, Education, Information and Sport, the Committee on Development and Cooperation (Doc. 1-100/82 and Doc. 1-760/82),  - recalling its resolution of 20 April 1982 on the 10th financial report on the EAGGF - 1980 - Guarantee Section and food aid (2),  1. Notes that:  1.2 //   //   // A. Estimates of revenue of the 1980 financial year totalled:  // 16 182 497 261 EUA  // Made up as follows:  //   // Own resources:  // 15 280 913 201 EUA  // Provisional surplus from the preceding financial year:  // 458 587 431 EUA  // Balance of VAT own resources from the 1979 financial year and the adjustment of financial contributions for the 1979 financial year:  // 261 017 649 EUA  // Other:  // 181 978 980 EUA  // B. Estimates of expenditure for the 1980 financial year totalled:  // 16 182 497 261 EUA 1,2 // 2. Grants a discharge to the Commission in respect of the following amounts:  //  1.2 // A. Revenue:  //   // (a) Entitlements established for the 1980 financial year:  // 16 089 156 077,13 EUA  // (b) Entitlements collected at 31 December 1980:  // 16 065 749 098,04 EUA  // Broken down as follows:  //   // - Amounts collected from entitlements for the financial year:  // 16 062 212 764,27 EUA  // Made up as follows:  //   // Own resources:  // 15 166 617 252,48 EUA  // - Definitive surplus from the preceding financial year:  // 455 906 430,98 EUA  // - Balance of VAT own resources from the 1979 financial year and the adjustment of financial contributions for the 1979 financial year  // 261 017 649,39 EUA  // - Other  // 178 671 431,42 EUA  // - Amounts collected from the entitlements carried forward from the preceding financial year:  // 3 536 333,77 EUA  // B. Appropriations carried forward from 1979 to 1980 and transferred to other items contrary to the principle of specificity of appropriatons:  // 38 786 044,00 EUA  // C. Expenditure, (payments made in respect of the 1980 financial year):  // 14 carried over to the 1980 financial year.   //   // 3. Fixes:  //   // The surplus of the 1980 financial year to be carried forward (1) at:  // financial 246 132 414,34 EUA  // Broken down as follows:  //   // Revenue collected in respect of 1980:  // 16 065 749 098,04 EUA  // Appropriations carried forward from 1979 to 1980 and transferred to other items:  // + 38 786 044,00 EUA  // Total:  // 16 104 535 142,04 EUA  // Payments made against appropriations for 1980:  // 14 866 687 882,45 EUA (2)  // Appropriations carried forward to 1981:  // + 1 108 394 374,49 EUA  // Appropriations carried forward from 1979 and now cancelled:  // - 116 679 529,24 EUA  // Expenditure to be financed from the revenue of the 1980 financial year:  // 15 858 402 727,70 EUA  // Appropriations carried forward to the 1981 financial year:  // 1 108 394 374,49 EUA  4. Draws attention to its resolution embodying the comments accompanying the Decision granting a discharge and requests the institutions to report on the measures taken following those comments in accordance with Article 85 of the Financial Regulation (3);  5. Instructs its President to communicate this Decision and the attached comments to the Commission of the European Communities, to forward them to the other institutions and to arrange for their publication in the Official Journal of the European Communities (L series).  1.2 // The Secretary-General  // The President  // H.-J. OPITZ  // Pieter DANKERT  (1) OJ No C 344, 31. 12. 1981, p. 1.  (2) OJ No C 125, 17. 5. 1982, p. 54. 866 687 882,45 EUA (1)  //   //  (1) The expenditure for the 1980 financial year includes in the EAGGF Guarantee Section an amount of 203 483 472,63 EUA to be considered as commitment of expenditure attributable to the 1979 financial year in accordance with the third paragraph of Article 5 of the Financial Regulation, but for which no appropriations were envisaged for 1979 and no appropriatons  (1) In accordance with Article 15 of Regulation (EEC, Euratom, ECSC) No 2891/77 (OJ No L 336, 27. 12. 1977, p. 1).  (2) The expenditure for the 1980 financial year includes in the EAGGF Guarantee Section an amount of 203 483 472,63 EUA to be considered as commitment of expenditure attributable to the 1979 financial year in accordance with the third paragraph of Article 5 of the Financial Regulation, but for which no appropriations were envisaged for 1979 and no appropriatons carried over to the 1980 financial year.  (3) OJ No L 356, 31. 12. 1977, p. 1.  RESOLUTION  containing the comments accompanying the Decision granting a discharge in respect of the implementation of the budget of the European Communities for the 1980 financial year  THE EUROPEAN PARLIAMENT,  A. having regard to its resolution of 20 April 1982 deferring the decision to grant discharge in respect of the general budget of the European Communities for the 1980 financial year (1),  B. noting the positive response (2) of the Commission of the European Communities to the points raised by Parliament and taking account of the political assurances received from the Commission over the past half-year,  C. having regard to its resolution of 16 November 1982 on the follow-up to the comments accompanying the 1979 discharge decision,  D. believing that the facts surrounding the Commission's handling of the 1980 embargo decision on deliveries of agricultural products to the USSR, as will be outlined in a separate report from the Committee on Budgetary Control, give grounds for serious concern notably in regard to the failure of the Commission to inform Parliament in good time of the great divergence between the actual pattern of deliveries and the pattern that the political authorities of the European Communities wished to see in operation,  E. insisting on the need to ensure strict adherence to the principles of legality, regularity and effectiveness in the management of the budget,  Appends to its Decisions on the discharge for the 1980 financial year the following comments, which are binding on the institutions concerned, pursuant to the provisions of Article 85 of the Financial Regulation (3) and calls for written replies from the Commission by 1 May 1983;  Own resources  1. Points out that, in 1980, the Community achieved, after a 12-year transitional period, full financial autonomy; urges that the Commission ensures that, in future, the Community's own resources are totally independent of the budget of any Member State;  2. Recalls that the present system and functioning of financial autonomy means that the Community's own resources are due as soon as the levies are established and that this fact should be brought to the attention of the national authorities; notes, with the Commission, that the carrying forward of any balances to the following financial year is part of the system of financial autonomy and any departure from this procedure would be a retrograde step; therefore, asks the Commission to take any necessary action to safeguard own resources and strengthen financial autonomy;  The provisional twelfths  3. Notes that a dual standard was applied by the Commission as regards the operation of the system of provisional twelfths in 1980; accepts the assurance given orally and in writing by the Commission that, in future, 'the wishes of the elected representatives of the peoples of Europe must be allowed to exert a decisive influence over the decisions on how the Commission is to implement the budget', expects that these assurances will be respected and will put forward the necessary amendments to the Financial Regulation;  Sound management of appropriations  4. Considers that the use of appropriations in the construction of a 'fitness centre' in the Jean Monnet building of the Commission, without making the budgetary authority aware, constituted a serious breach of proper budgetary accountability; reiterates its insistence that, in future, prior budgetary authority approval be obtained in such cases; asks that the provisions of the Financial Regulation, in regard to the correct and sound management of Community funds, be brought formally to the attention of all officials in the institutions who have financial control responsibilities or who are responsible for the use of European Community funds; believes that it is necessary to reconsider the overall budgetary control system of the European Communities; awaits a further report from the Commission on the way that expenditure on social facilities for staff should be included in the budgets of all institutions;  As regards the accounts  5. Notes with approval that the differences of opinion in the matter of European Community accounts between the Commission and the Court of Auditors are being gradually settled; urges that an early comprehensive solution be obtained and asks both institutions to keep Parliament fully informed on a continuing basis in regard to these matters;  As regards research and investment  6. Deplores the incomplete rate of utilization of appropriations under many research and investment budgetary lines; calls on the Commission to ensure (a) that expenditure is in conformity with policy priorities and (b) that the criterion of transparency in the research budget is respected;  As regards the Regional Fund  7. Notes that the amount of unpaid appropriations in recent years had tended to increase considerably; welcomes the progress achieved in the 1980 financial year in respect of the commitment and payment of appropriations; regrets that, as a result of cumbersome approval and implementation procedures, certain measures in the non-quota section could not commence in 1980 and, therefore, expects a report on fundamental improvements in this sector;  8. Notes that the quota system and the re-utilization of decommitteed appropriations, as evidenced by the balances remaining at the end of the financial year, are not yet functioning satisfactorily and expects that the Commission will continue to seek improvements in its operation;  As regards the social sector  9. Welcomes the Commission's intention to carry out a series of additional analyses with a view to ensuring fuller exchanges of information between Member States and improving the impact of operations submitted for assistance from the European Social Fund and asks the Commission to report on the results to date;  10. Reiterates its view as to the need for a substantial improvement in the procedures for monitoring and evaluating the success and effectiveness of the measures and programmes funded by the European Social Fund, urges the Commission to intensify its efforts to this end and asks it to report further on developments;  11. Expresses its profound dissatisfaction at the inadequacy of the European Social Fund in relation to the ever-rising demands made on it, against a background of constantly increasing unemployment and condemns the Council's opposition to the provision of adequate budgetary resources for the European Social Fund;  As regards the EAGGF Guidance Section  12. Calls on the Commission to fix, together with the recipients and on the basis of past experience, realistic deadlines for the completion of projects under Regulations No 17/64 and (EEC) No 355/77, and to define more clearly the priorities for the selection of projects;  13. Recalls the urgent need to review Directive 72/160/EEC; notes with regret that a prompt decision was not taken by the Council on the proposals made by the Commission (1); and asks the Commission to keep it informed of developments;  14. Stresses the need for more frequent reviews of the measures adopted under the EAGGF Guidance Section, so that their scope may be adapted to changes in the economic situation and so that they take account of the requirements as regards flexibility of application, particularly with a view to restoring the balance of aid in order to strengthen structures in the least-favoured regions;  As regards the EAGGF Guarantee Section  15. Considers that it is necessary to evaluate, jointly with the European Court of Auditors, EAGGF Guarantee Section measures with a view to identifying those that:  - should have their management and operations improved,  - give scope for frauds,  - serve no useful purpose and should be terminated;  As regards the decentralized bodies  16. Insists that subsidies to institutions, movements and non-governmental organizations should be subject to careful rules; and asks the Commission to respect fully the recommendations of the European Court of Auditors in regard to payments towards the running of such bodies;  17. Notes the reservations expressed by the European Court of Auditors concerning the JET joint undertaking accounts and instructs its Committee on Budgetary Control to report on the issues arising;  18. Reserves its judgement on the reforms effected by the Commission in the sector of its data-processing services until the Committee on Budgetary Control has had further clarification from the responsible Member of the Commission;  As regards smuggling on the Anglo-Irish border  19. Considers that, no matter how effective the controls and no matter how harmonious the cooperation, smuggling along this border will never be eliminated as long as MCAs continue to exist and so long as there are different levels of consumer subsidy and calls on the Commission to press for the necessary solutions, in so far as the Member States are concerned;  As regards food aid  20. Observes that the Commission largely agrees with Parliament's analysis of the situation in regard to European Community food aid and in regard to the reforms that are necessary in this sector; considers that it is unacceptable that the Council has not adopted these reforms; deplores the fact that the Commission is not able to implement food-aid policy without the interference of a management committee;  EDFs  21. Considers it regrettable that the budgetary management of the EDFs is still - due to the unjustifiable opposition of the Council - outside the scope of application of the budgetary principles of the European Communities, in particular as regards financial autonomy, and this has adverse consequences in so far as concerns aid to associated countries and the sound management of appropriations;  Other matters  22. Will further consider:  - administration and personnel matters,  - frauds affecting the Community budget,  - borrowing and lending activities,  - the evaluation of research and of projects financed by the Community in the framework of industrial policy,  in the context of future reports from the Committee on Budgetary Control;  Conclusion  23. Considers that the positive reaction of the Commission to Parliament's resolution of 20 April 1982 made possible major progress in relation to the weighty matters raised in that resolution and also consolidated the effectiveness and the political character of the discharge procedure.  (1) OJ No C 125, 17. 5. 1982, p. 28.  (2) COM(82) 461 final.  (3) OJ No L 356, 31. 12. 1977, p. 1.  (1) OJ No C 124, 17. 5. 1979, p. 4.


title: Decision (EU) 2015/2213 of the European Parliament of 27 October 2015 on the closure of the accounts of the ENIAC Joint Undertaking for the financial year 2013

text:
               1.12.2015

               EN

               Official Journal of the European Union

               L 314/46

         DECISION (EU) 2015/2213 OF THE EUROPEAN PARLIAMENT
   of 27 October 2015
   on the closure of the accounts of the ENIAC Joint Undertaking for the financial year 2013
   THE EUROPEAN PARLIAMENT,

               —

               having regard to the final annual accounts of the ENIAC Joint Undertaking for the financial year 2013,

               —

               having regard to the Court of Auditors' report on the annual accounts of the ENIAC Joint Undertaking for the financial year 2013, together with the Joint Undertaking's replies (1),

               —

               having regard to the statement of assurance (2) as to the reliability of the accounts and the legality and regularity of the underlying transactions provided by the Court of Auditors for the financial year 2013, pursuant to Article 287 of the Treaty on the Functioning of the European Union,

               —

               having regard to the Council's recommendation of 17 February 2015 on discharge to be given to the Joint Undertaking in respect of the implementation of the budget for the financial year 2013 (05306/2015 — C8-0049/2015),

               —

               having regard to its decision of 29 April 2015 (3) postponing the discharge decision for the financial year 2013, and the replies from the Executive Director of the ECSEL Joint Undertaking (formerly the ENIAC Joint Undertaking),

               —

               having regard to Article 319 of the Treaty on the Functioning of the European Union,

               —

               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 (4),

               —

               having regard to Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (5), and in particular Article 209 thereof,

               —

               having regard to Council Regulation (EC) No 72/2008 of 20 December 2007 setting up the ENIAC Joint Undertaking (6),

               —

               having regard to Council Regulation (EU) No 561/2014 of 6 May 2014 establishing the ECSEL Joint Undertaking (7), and in particular Article 1(2) and Article 12 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 on the Financial Regulation applicable to the general budget of the European Communities (8),

               —

               having regard to Commission Delegated Regulation (EU) No 110/2014 of 30 September 2013 on the model financial regulation for public-private partnership bodies referred to in Article 209 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (9),

               —

               having regard to Rule 94 of and Annex V to its Rules of Procedure,

               —

               having regard to the second report of the Committee on Budgetary Control (A8-0285/2015),

               1.

               Approves the closure of the accounts of the ENIAC Joint Undertaking for the financial year 2013;

               2.

               Instructs its President to forward this decision to the Executive Director of the ECSEL Joint Undertaking, 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

         Martin SCHULZ

            The Secretary-General

         Klaus WELLE

      (1)  OJ C 452, 16.12.2014, p. 26.

      (2)  OJ C 452, 16.12.2014, p. 27.

      (3)  OJ L 255, 30.9.2015, p. 424.

      (4)  OJ L 248, 16.9.2002, p. 1.

      (5)  OJ L 298, 26.10.2012, p. 1.

      (6)  OJ L 30, 4.2.2008, p. 21.

      (7)  OJ L 169, 7.6.2014, p. 152.

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

      (9)  OJ L 38, 7.2.2014, p. 2.


title: Commission Decision declaring that the measure notified by the Slovak Republic, under the interim mechanism pursuant to Annex IV.3 of the Act of Accession, is not applicable after accession — State aid   (Text with EEA relevance)

text:
               4.10.2006

               EN

               Official Journal of the European Union

               C 239/16

         Commission Decision declaring that the measure notified by the Slovak Republic, under the interim mechanism pursuant to Annex IV.3 of the Act of Accession, is not applicable after accession — State aid
   (2006/C 239/05)
   (Text with EEA relevance)
   Date of adoption of the decision:
   Member State: The Slovak Republic
   Aid No: State aid No SK 1/2004
   Title: Všeobecná úverová banka, a.s.
   Objective: Aid to the banking sector
   Other information: Commission decision declaring that the measures in favour of Všeobecná úverová banka, a.s., notified by the Slovak Republic under the interim mechanism pursuant to Annex IV.3 of the Accession Act, are not applicable after accession
   The authentic text(s) of the decision, from which all confidential information has been removed, can be found at:
   http://ec.europa.eu/community_law/state_aids/


title: Commission Decision (EU) 2016/1848 of 4 July 2016 on the measure SA.40018 (2015/C) (ex 2015/NN) implemented by Hungary on the 2014 Amendment to the Hungarian food chain inspection fee (notified under document C(2016) 4056) (Text with EEA relevance )

text:
               19.10.2016

               EN

               Official Journal of the European Union

               L 282/63

         COMMISSION DECISION (EU) 2016/1848
   of 4 July 2016
   on the measure SA.40018 (2015/C) (ex 2015/NN) implemented by Hungary on the 2014 Amendment to the Hungarian food chain inspection fee

         (notified under document C(2016) 4056)

   (Only the Hungarian text is authentic)
   (Text with EEA relevance)
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular the first subparagraph of Article 108(2) thereof,
   Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
   Having called on interested parties to submit their comments pursuant to the provisions cited above (1) and having regard to their comments,
   Whereas:
   1.   PROCEDURE

               (1)

               By press articles published in December 2014, the Commission became aware of the 2014 amendment to the 2008 Hungarian Food Chain Act, regulating the food chain inspection fee. By letter of 17 March 2015, the Commission sent a request for information to the Hungarian authorities, who replied by letter of 16 April 2015.

               (2)

               By letter dated 15 July 2015, the Commission informed Hungary that it had decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (hereinafter: ‘the Treaty’) in respect of the aid measure (the ‘Opening Decision’). The Commission also ordered the immediate suspension of the measure in accordance with Article 11(1) of Regulation (EC) No 659/1999 (2) in the Opening Decision.

               (3)

               The Opening Decision was published in the Official Journal of the European Union
                   (3). The Commission invited interested parties to submit their comments on the aid measure.

               (4)

               The Commission received comments from one interested party. By letter of 13 October 2015, the Commission forwarded the comments to Hungary, which was given the opportunity to react. Hungary did not react to those comments.

         2.   DETAILED DESCRIPTION OF THE MEASURE

   2.1.   The 2008 Food Chain Act establishing a food chain inspection fee

               (5)

               The provisions applicable to the food chain inspection fee are set forth in Act XLVI of 2008 on the food chain and the official supervision thereof (the ‘Food Chain Act’) and in Decree No 40 of 27 April 2012 of the Minister for Rural Development on the rules of making a declaration on and paying the food chain inspection fee. Undertakings regarded as food chain operators pursuant to the Food Chain Act have to pay the fee in respect of their turnover made in relation to certain activities. The Act provides a list of the activities (4) in respect of which companies are obliged to pay the inspection fee.

               (6)

               All undertakings (companies and other legal persons, but also private persons who pursue their activities as sole traders or primary producers) operating in Hungary that generated turnover from the listed activities in the year preceding the declaration are subject to the payment of the food chain inspection fee. The purpose of the food chain inspection fee is to cover the cost of performance by the National Food Chain Safety Office (a State agency) of tasks relating to certain food chain regulatory and supervisory activities. The supervisory fee is calculated on a yearly basis and the person subject to the fee is obliged to declare and pay regardless of whether specific on-the-spot official controls have been carried out.

               (7)

               Until 31 December 2014, the rule established by the Food Chain Act was that all food chain operators had to pay the fee in respect of the relevant turnover at a flat rate of 0,1 %.

               (8)

               The collected food chain inspection fee may be spent only on the tasks set forth in the food chain safety strategy and the activities of the food chain authority.

         2.2.   The 2014 amendment of the Food Chain Act

               (9)

               Pursuant to the amendment of Article 47/B of the Food Chain Act by Act LXXIV of 2014 (5) that entered into force on 1 January 2015 (hereinafter: ‘the 2014 amendment’), specific rules were introduced for the calculation of the inspection fee applicable to turnover generated by stores selling fast-moving consumer goods (6) on the Hungarian market.

               (10)

               The 2014 amendment of the Food Chain Act introduces a progressive fee structure for operators of stores selling fast-moving consumer goods (7), with rates ranging from 0 % to 6 %. More precisely, the following rates applied to turnover subject to the food chain inspection fee:

                           —

                           0 % on the part of the turnover not exceeding HUF 500 million (approximately EUR 1,6 million),

                           —

                           0,1 % on the part of the turnover exceeding HUF 500 million but not exceeding HUF 50 billion (approximately EUR 160,6 million),

                           —

                           1 % on the part of the turnover exceeding HUF 50 billion but not exceeding HUF 100 billion (approximately EUR 321,2 million),

                           —

                           2 % on the part of the turnover exceeding HUF 100 billion but not exceeding HUF 150 billion (approximately EUR 481,8 million),

                           —

                           3 % on the part of the turnover exceeding HUF 150 billion but not exceeding HUF 200 billion (approximately EUR 642,4 million),

                           —

                           4 % on the part of the turnover exceeding HUF 200 billion but not exceeding HUF 250 billion (approximately EUR 803 million),

                           —

                           5 % on the part of the turnover exceeding HUF 250 billion but not exceeding HUF 300 billion (approximately EUR 963,5 million),

                           —

                           6 % on the part of turnover exceeding HUF 300 billion.

               (11)

               Pursuant to the 2014 amendment of the Food Chain Act, all other food chain operators remained subject to the fee calculated on the relevant turnover at a flat rate of 0,1 %.

               (12)

               Neither the amended provision of the Hungarian Food Chain Act nor its explanatory memorandum make reference to the reasons behind the introduction of specific rules with regard to the fee rate for stores selling fast-moving consumer goods. No explanation is given either as to the determination of the different turnover brackets and corresponding fee rates.

               (13)

               The fee is subject to declaration by the food chain operators. It is payable annually in two equal instalments by 31 July and 31 January. The law also provides for simplified procedures in cases where the fee is less than HUF 1 000 (approximately EUR 3,20). In that case, the fee is still subject to declaration, but it does not have to be paid.

               (14)

               A penalty for belated payment is payable on any inspection fee unpaid by the deadline. A default penalty may be imposed if the persons or entities subject to the food chain inspection fee fail to fulfil their obligation to make a declaration, or fulfil it belatedly, incompletely or with untrue data.

         3.   THE FORMAL INVESTIGATION PROCEDURE

   3.1.   Grounds for initiating the formal investigation procedure

               (15)

               The Commission opened the formal investigation procedure because it considered at that stage that the progressive fee structure (rates and turnover brackets) introduced by the 2014 amendment constituted unlawful and incompatible State aid.

               (16)

               In particular, the Commission considered that the progressive rates introduced by the 2014 amendment differentiate between undertakings based on their turnover and therefore on their size and grant a selective advantage to undertakings with low turnover and thus smaller undertakings. Hungary had not provided evidence that the progressive fee structure applicable to stores selling fast-moving consumer goods, such as supermarkets, corresponds to a similar progressive pattern observed in the costs incurred by the National Food Chain Safety Office for the inspection of those stores. Hungary had therefore not demonstrated that the measure was justified by the nature or general scheme of the tax system. Therefore, the Commission considered that the measure constituted State aid, since all the other conditions laid down by Article 107(1) of the Treaty appeared to have been met.

               (17)

               Finally, the Commission raised doubts as to the compatibility of the measure with the internal market. In particular, the Commission recalled that it cannot declare compatible a State aid measure that breaches other rules of Union law, such as the fundamental freedoms established by the Treaty or the provisions of Union regulations and directives. At that stage, the Commission could not exclude that the measure predominantly targeted foreign-owned undertakings, which could entail a breach of Article 49 of the Treaty establishing the fundamental freedom of establishment and also expressed doubts that the differences in tax treatment entailed by the measure were necessary and proportionate to the objective of fulfilling the obligations laid down by Regulation (EC) No 882/2004 of the European Parliament and of the Council (8).

         3.2.   Modifications of the legal base of the inspection fee after the opening of the formal investigation procedure

               (18)

               On 27 October 2015, the Hungarian government submitted to the Hungarian Parliament a proposal for an Act amending Act XLVI of 2008 on the food chain and its official supervision. On 17 November 2015, the Hungarian Parliament adopted Act CLXXXII of 2015 amending Act XLVI of 2008 on the food chain and its official supervision, which was published in the Hungarian Official Gazette (Magyar Közlöny) No 182/2015 on 26 November 2015. The new law entered into force on the 31st day following that of its publication, i.e. on 27 December 2015.

               (19)

               The amendment of November 2015 abolishes the progressive fee structure introduced by the 2014 amendment and reintroduces a 0,1 % flat inspection fee for all food chain operators, as was the case before the 2014 amendment to the Act.

         3.3.   Comments from Hungary

               (20)

               Hungary did not send any comments to the Commission in response to the Opening Decision.

               (21)

               Instead, by letter of 16 September 2015 addressed to the Commissioner for Competition, Hungary sent a proposal for an amended food chain inspection fee to the Commission. In this proposal, the 0 % rate would be repealed and, instead of the progressive fee structure with eight rates (between 0 % and 6 %), a two-rate system would be introduced (0,1 % for retail sector operators with low turnover and 0,3 % for retail sector operators with higher turnover).

               (22)

               By letter of 7 October 2015, the Commission's services informed Hungary that even though, the difference between the fee rates decreased under the new proposal, the proposed new fee would still feature a progressive fee structure, which would be problematic from a State aid perspective if it was not justified by the guiding principles of the inspection fee system.

               (23)

               By letter of 7 October 2015, Hungary sent additional information and data aimed at justifying the dual progressive fee structure on the basis of the supervision cost of major market players and other commercial units. In particular, Hungary argued that major players have a complex structure, which requires a more complicated control and far more resources from the authority performing such controls.

               (24)

               Following Hungary's request to receive feedback on the proposal made in its letter of 16 September 2015 and on the additional information provided in its letter of 7 October 2015, the Commission's services informed Hungary by letter of 17 March 2016 that the data provided does not demonstrate that the cost of controls as a proportion of turnover increases in the same way as the fee rates. In particular, the Commission's services confirmed their view that the figures provided did not show that the cost of inspections for companies falling under the 0,3 % rate are three times higher — for each forint of turnover controlled — than those for the companies falling under the 0,1 % rate. Hence, the progressive two-fee structure would have to be considered to provide a selective advantage to the undertakings falling under the lower bracket.

               (25)

               In the end, Hungary did not submit this legislative proposal to the Hungarian Parliament to amend the Act XLVI of 2008 on the food chain and its official supervision.

         3.4.   Comments from interested parties

               (26)

               The Commission received comments from one interested party. That interested party operates in the Hungarian market and agrees with the Commission's assessment in the Opening Decision. That interested party argues that the measure was designed to specifically target foreign companies, which it contends is possible because of the structure of the Hungarian retail market. According to that party, foreign companies in the retail sector in Hungary operate branches or subsidiaries, which increases the level of their (consolidated) turnover. By contrast, Hungarian undertakings are organised in a franchise system, with each individual store — or a limited number of them — being operated by a different legal entity which is not part of the franchisor's corporate entity or group. According to estimates provided by the interested party, foreign retailers (corporate groups) together would currently have a market share of approximately 50 % in Hungary, but they bear around 95 % of the inspection fee volume, while Hungarian retailers generally fall within the 0 % or 0,1 % fee brackets under Article 47/B of the Food Chain Act.

               (27)

               In other words, Hungarian food retailers, due to their franchise system organisation, automatically fall within lower fee brackets (subject to 0 % or 0,1 % rates), while branches/subsidiaries of foreign EU parents which are not organised according to a franchise system, are generally affected by high fee levels. Hence, according to the interested party, the food chain inspection fee grants a selective advantage both to smaller undertakings and to those undertakings operating in the retail trade which are not organised in a branch system, i.e. to Hungarian vs foreign-owned undertakings.

         3.5.   Comments from Hungary on interested parties' comments

               (28)

               The Commission has not received any response from Hungary on the comments from the sole interested party, which were forwarded to it by letter of 13 October 2015.

         4.   ASSESSMENT OF THE AID

               (29)

               The Commission limits its assessment in the present Decision to the provisions of the 2014 amendment to the Food Chain Act, more specifically to the amended provision laying down a progressive fee structure (rates and turnover brackets) on stores selling fast-moving consumer goods in Hungary as set out in recital 10 above.

         4.1.   Presence of State aid within the meaning of Article 107(1) of the Treaty

               (30)

               According to Article 107(1) of the Treaty, ‘[s]ave as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market’.

               (31)

               The classification of a measure as aid within the meaning of this provision therefore requires the following cumulative conditions to be met: (i) the measure must be imputable to the State and financed through State resources; (ii) it must confer an advantage on its recipient; (iii) that advantage must be selective; and (iv) the measure must distort or threaten to distort competition and affect trade between Member States.

         4.1.1.   State resources and imputability to the State

               (32)

               To constitute State aid, a measure must be financed through State resources and be imputable to a Member State.

               (33)

               Since the measure results from an Act of the Hungarian Parliament, it is clearly imputable to the Hungarian State. Hungary's argument that, given that the legal basis of the fee is Regulation (EC) No 882/2004, the fee cannot be imputed to the Hungarian State, cannot be accepted.

               (34)

               The Union Courts have previously held that a tax exemption adopted by a Member State implementing a Union directive in accordance with its obligations under the Treaty is not imputable to that Member State, but stems from an act of the Union legislature and therefore does not constitute State aid (9). However, Regulation (EC) No 882/2004 sets out general obligations for Member States and does not impose upon them the obligation to establish progressive fees based on turnover for the performance of controls, so that the 2014 amendment cannot be said to stem from an act of the Union legislature. Article 26 of Regulation (EC) No 882/2004 provides that ‘Member States shall ensure that adequate financial resources are available to provide the necessary staff and other resources for official controls by whatever means considered appropriate, including through general taxation or by establishing fees or charges’. Pursuant to Article 27(1), ‘Member States may collect fees or charges to cover the costs occasioned by official controls’. It is thus the responsibility of individual Member States to set the amount of the fees within the bounds of the said legislation, and in particular in compliance with Article 27 thereof. Any choice made in that context is therefore imputable to the Hungarian State.

               (35)

               As regards the measure's financing through State resources, where the result of a measure is that the State forgoes revenues which it would otherwise have to collect from an undertaking in normal circumstances, that condition is also fulfilled (10). In the present case, the Hungarian State waives resources it would otherwise have to collect from operators of stores selling fast-moving consumer goods with a lower level of turnover (and thus smaller undertakings), if they had been subject to the same inspection fee as operators of stores selling fast-moving consumer goods with a high level of turnover.

         4.1.2.   Advantage

               (36)

               According to the case law of the Union Courts, the notion of aid embraces not only positive benefits, but also measures which, in various forms, mitigate the charges which are normally included in the budget of an undertaking (11). Although a measure that entails a reduction to a tax or a levy does not involve a positive transfer of resources from the State, it gives rise to an advantage because it places the undertakings to which it applies in a more favourable financial position than other taxpayers and results in a loss of income to the State (12). An advantage may be granted through different types of reduction in a company's tax burden and, in particular, through a reduction in the applicable tax rate, taxable base or in the amount of tax due (13).

               (37)

               The 2014 amendment to the Food Chain Act lays down a progressive fee structure that applies to operators of stores selling fast-moving consumer goods depending on the brackets into which those undertakings' turnover falls. The progressive character of those fees has the effect that the average percentage of the fee levied on a store's turnover increases when its turnover increases and reaches the next upper brackets. This has the result that undertakings with low turnover (smaller undertakings) are subject to the fee at substantially lower average rates than undertakings with high turnover (larger undertakings). Being subject to the fee at this substantially lower average rate mitigates the charges that undertakings with low turnover have to bear as compared to undertakings with high turnover and therefore constitutes an advantage to the benefit of smaller undertakings over larger undertakings for the purposes of Article 107(1) of the Treaty.

         4.1.3.   Selectivity

               (38)

               A measure is selective if it favours certain undertakings or the production of certain goods within the meaning of Article 107(1) of the Treaty.

               (39)

               For fiscal schemes the Court of Justice has established that the selectivity of a measure should in principle be assessed by means of a three-step analysis (14). First, the common or normal tax regime applicable in the Member State is identified: ‘the reference system’. Second, it should be determined whether a given measure constitutes a derogation from that system in so far as it differentiates between economic operators who, in light of the objectives intrinsic to the system, are in a comparable factual and legal situation. If the measure in question does not constitute a derogation from the reference system, it is not selective. If it does (and therefore is prima facie selective), it must be established, in the third step of the analysis, whether the derogatory measure is justified by the nature or the general scheme of the (reference) tax system (15). If a prima facie selective measure is justified by the nature or the general scheme of the system, it will not be considered selective and it will thus fall outside the scope of Article 107(1) of the Treaty.

         (a)   System of reference

               (40)

               In the present case, the Commission considers the reference system to be the inspection fee on food chain undertakings operating in Hungary (16). The Commission does not consider that the progressive fee structure introduced by the 2014 amendment can form a part of that reference system.

               (41)

               As the Court of Justice has specified (17), it is not always sufficient to confine the selectivity analysis to whether the measure derogates from the reference system as defined by the Member State. It is also necessary to evaluate whether the boundaries of that system have been designed by the Member State in a consistent manner or, conversely, in a clearly arbitrary or biased way, so as to favour certain undertakings over others. Otherwise, instead of laying down general rules applying to all undertakings from which a derogation is made for certain undertakings, the Member State could achieve the same result, side stepping the State aid rules, by adjusting and combining its rules in such a way that their very application results in a different burden for different undertakings (18). It is particularly important to recall in that respect that the Court of Justice has consistently held that Article 107(1) of the Treaty does not distinguish between measures of State intervention by reference to their causes or their aims, but defines them in relation to their effects, and thus independently of the techniques used (19).

               (42)

               Whereas the application of a flat fee to the turnover of food chain operators is an appropriate means to cover the costs incurred by the State for its inspection activities in line with Regulation (EC) No 882/2004, the progressive fee structure introduced by the 2014 amendment to the Food Chain Act appears deliberately designed by Hungary to favour certain undertakings over others. Prior to the 2014 amendment, all food chain operators, including store selling fast moving consumer goods, had to pay the fee in respect of their turnover at a flat rate of 0,1 %. Under the progressive fee structure introduced under the 2014 amendment operators of stores selling fast-moving consumer goods are potentially subject to a series of eight different fee rates, starting from 0 % and progressively increasing towards 6 %, depending on the brackets into which their turnover falls. Consequently, as a result of the 2014 amendment, a different average tax rate applies to undertakings subject to the fee depending on the nature of their activities (whether they operate stores selling fast moving consumer goods) and the level of their turnover (whether it surpasses the thresholds laid down by that amendment).

               (43)

               Because each company is taxed at a different rate, it is not possible for the Commission to identify one single reference rate in the fees as amended in 2014. Hungary also did not present any specific rate as the reference rate or ‘normal’ rate and also did not explain why a higher rate would be justified by exceptional circumstances for operators of stores selling fast moving consumer goods with a high level of turnover, nor why lower rates should apply to certain categories of operators or operators of stores selling fast moving consumer goods with lower levels of turnovers.

               (44)

               The effect of the 2014 amendment is therefore that different undertakings pay different levels of taxation (expressed as a proportion of their overall annual turnover) depending on their activities and, since the amount of turnover achieved by an undertaking correlates to a certain extent with the size of that undertaking, their size. However, the objective of the food inspection fee is to finance health and safety-related checks of food as it passes through the food chain and the progressive fee structure, with rates ranging between 0 % and 6 %, does not mirror the relationship between the cost of inspections on the premises of the undertakings covered by the measure and their turnover.

               (45)

               In light of that objective, the Commission considers all food chain operators, in general, and all operators of stores selling fast-moving consumer goods, in particular, to be in a comparable legal and factual situation, regardless of their activities or their level of turnover, and Hungary has advanced no convincing justification to discriminate between those types of undertakings when it comes to levying the food chain inspection fee. The Commission refers, in this regard, to recitals 52 to 57 below. Hungary has therefore deliberately designed the food chain inspection fee in such a manner so as to arbitrarily favour certain undertakings, namely operators of stores selling fast-moving consumer goods with a lower level of turnover (and thus smaller undertakings), and disadvantage others, namely larger undertakings, which also tend to be foreign-owned (20).

               (46)

               The reference system is therefore selective by design in a way that is not justified in light of the objective of the food inspection fee, which is to finance health and safety-related checks of food as it passes through the food chain. Consequently, the appropriate reference system in the present case is the imposition of an inspection fee on food chain undertakings operating in Hungary based on their turnover, without the progressive fee structure being a part of that system.

         (b)   Derogation from the system of reference

               (47)

               As a second step, it is necessary to determine whether the measure derogates from reference system in favour of certain undertakings which are in a similar factual and legal situation in light of the intrinsic objective of the system of reference.

               (48)

               As explained in recital 44, the intrinsic objective of the food inspection fee is to finance health and safety-related checks of food as it passes through the food chain in Hungary. As further explained in that recital, all food chain operators, in general, and all operators of stores selling fast-moving consumer goods, in particular, should be considered to be in a comparable legal and factual situation in light of that objective, regardless of their activities or their level of turnover.

               (49)

               As explained in recital 37, the progressive fee structure, which pursuant to the 2014 amendment applies only to operators of stores selling fast-moving consumer goods, has the result that undertakings with high levels of turnover are subject to both substantially higher marginal inspection fees and substantially higher average inspection fee rates as compared to operators of stores with low levels of turnover and other food chain operators. In other words, the progressive fee structure introduced by the 2014 amendment differentiates between undertakings in a comparable factual and legal situation as regards the objective of the food inspection fee based on their activities and their size.

               (50)

               The Commission notes, in particular, that the fee rates laid down by the 2014 amendment to the Food Chain Act and the brackets to which they apply result in an increase of the fee for undertakings subject to the fee depending on their turnover from certain activities and thus their size. The marginal fee rate is 0,1 % for undertakings generating a turnover higher than HUF 500 million, but not exceeding HUF 50 billion. That marginal rate is multiplied by 60 to reach 6 % for undertakings selling fast-moving consumer goods that generate a turnover exceeding HUF 300 billion. The consequence of that increase in the marginal fee rate is that for a store with turnover in the top bracket, the average level of fee is substantially higher than the one applicable to undertakings with lower levels of turnover (and thus smaller undertakings).

               (51)

               Consequently, the progressive rate structure introduced by the 2014 amendment derogates from the reference system consisting of the imposition of an inspection fee on food chain undertakings operating in Hungary in favour of operators of stores selling fast-moving consumer goods with a lower level of turnover (and thus smaller undertakings). The Commission therefore considers the contested measure to be prima facie selective.

         (c)   Justification

               (52)

               A measure which derogates from the reference system is not selective if it is justified by the nature or general scheme of that system. This is the case where the selective treatment is the result of inherent mechanisms necessary for the functioning and effectiveness of the system (21). For this purpose, external policy objectives — such as regional, environmental or industrial policy objectives — cannot be relied upon by the Member States to justify the differentiated treatment of undertakings under a certain regime. It is for the Member State, i.e. for the Hungarian authorities, to provide a justification.

               (53)

               The Hungarian authorities have argued that the purpose of the derogation is to ensure that the rate of the inspection fee is more proportional to the resources of the authority required for the inspection of significant market players (e.g. certificates, time required for inspection with IT and quality assurance systems, number of company sites, use of experts and motor vehicle costs). In the view of the Hungarian authorities, food chain operators with larger turnovers or which represent a greater risk by virtue of the greater number of consumers they deal with should contribute more to the financing of food chain inspection.

               (54)

               The Commission considers that progressive turnover fees can only be justified if the specific objective pursued by the fee requires such progressive rates, i.e. if the costs that the fee is supposed to cover or the negative externalities created by an activity that the fee is supposed to address also increase — and increase more than proportionately (22) — in respect of turnover. As the retail chain supervision fee is supposed to finance health and safety-related checks of food as it passes through the food chain, the Commission has found no reason why the cost of such controls should increase more than proportionately with the turnover of larger undertakings.

               (55)

               For example, Hungary has not provided evidence explaining why the operator of a retail store with substantial levels of turnover selling, for example, a package of sugar would represent 60 times the hazards or warrant controls 60 times more costly compared to the operator of a small supermarket with low turnover selling the same package of sugar. Indeed, while the turnover resulting from the sale of that package of sugar is similar for both undertakings, the fee due for each forint of turnover generated by the sale of that package is 60 times lower for the operator of the small supermarket.

               (56)

               The Commission further observes that Hungary's purported justification that food chain operators with larger turnovers should contribute more to the financing of food chain inspection is undermined by the fact that a store selling fast moving consumer goods that generates a high level of turnover will be subject to higher rates on that turnover than food chain operators other than undertakings selling fast-moving consumer goods which generate the same level of turnover but remain subject to a 0,1 % flat fee.

               (57)

               Accordingly, the Commission does not consider that the measure is justified by the nature and general scheme of the reference system. The measure should therefore be considered to confer a selective advantage on undertakings operating stores selling fast-moving consumer goods with a lower level of turnover (and thus smaller undertakings).

         4.1.4.   Distortion of competition and effect on intra-Union trade

               (58)

               According to Article 107(1) of the Treaty, a measure must distort or threaten to distort competition and have an effect on intra-Union trade to constitute State aid. The measure applies to undertakings deriving turnover from certain food chain related activities and selling fast-moving consumer goods on the Hungarian market, including operators from other Member States. The market served by undertakings selling fast-moving consumer goods is characterised — both in Hungary and in other Member States — by the presence of operators from other Member States that effectively operate — or could develop their operations — on an international scale. The progressive character of the turnover fee may substantially favour some of those operators, to the detriment of others and reinforce their position both on the Hungarian market and on the European market at large. The measure therefore has an influence on the competitive situation of the undertakings subject to the progressive fee, distorts or threatens to distort competition and has an effect on intra-Union trade.

         4.1.5.   Conclusion

               (59)

               Since all the conditions laid down by Article 107(1) of the Treaty are met, the Commission considers that the 2014 amendment to the Food Chain Act laying down a progressive fee rate structure for undertakings selling fast-moving consumer goods constitutes State aid within the meaning of that provision.

         4.2.   Compatibility of the aid with the internal market

               (60)

               State aid shall be deemed compatible with the internal market if it falls within any of the categories listed in Article 107(2) of the Treaty (23) and it may be deemed compatible with the internal market if it is found by the Commission to fall within any of the categories listed in Article 107(3) of the Treaty (24). However, it is the Member State granting the aid which bears the burden of proving that State aid granted by it is compatible with the internal market pursuant to Articles 107(2) or 107(3) of the Treaty (25).

               (61)

               The Commission notes that the Hungarian authorities have not provided any arguments why the 2014 amendment to the Food Chain Act would be compatible with the internal market. Hungary did not comment on the doubts expressed in the Opening Decision as regards the compatibility of the measure and did not react to the comments expressed by the third party on compatibility (26). The Commission considers that none of the exceptions referred to in the aforementioned provisions apply, since the measure does not appear to aim to achieve any of the objectives listed in those provisions. Consequently, the measure cannot be declared compatible with the internal market.

               (62)

               The Commission further recalls that it cannot declare compatible a State aid measure that breaches other rules of Union law such as the fundamental freedoms established by the Treaty or the provisions of Union regulations and directives. In that respect, the doubts expressed by the Commission in the Opening Decision that the measure predominantly targets foreign-owned undertakings, which could entail a breach of Article 49 of the Treaty establishing the fundamental freedom of establishment, have not be alleviated. Hungary did not comment on the possible breach of Article 49 of the Treaty or the comments of the interested third party on this aspect.

               (63)

               Hungary claimed that Regulation (EC) No 882/2004 is the legal basis for the food chain inspection fee as amended by the 2014 amendment. However, based on the information provided by the Hungarian authorities (27), the Commission disagrees that the measure — as amended in 2014 — complies with Regulation (EC) No 882/2004 for the following four reasons.

               (64)

               First, on the basis of the information provided by Hungary, it has not been established that the inspection fee — as amended in 2014 — was calculated in accordance with the criteria for the calculation of fees enshrined in Regulation (EC) No 882/2004, nor that it did not exceed the overall costs that the competent authorities incur in the performance of official controls, as is expressly required by Article 27(4)(a) of that Regulation.

               (65)

               Second, the costs that were taken into account when the calculation method of the inspection fee was established do not appear to be in line with those referred to in Article 27(4)(a) when read in conjunction with Annex VI to Regulation (EC) No 882/2004. In particular, whilst the latter states that the costs to be considered for the calculation of fees can include those of staff ‘involved in official controls’, the Hungarian authorities have informed the Commission that the inspection fee they charge also covers the (wider) costs stemming from the broader category of ‘staff salaries’ (28).

               (66)

               Third, although the Hungarian authorities are entitled to charge flat rate fees in accordance with Article 27(4)(b) of Regulation (EC) No 882/2004, they have failed to provide a convincing justification for the progressive nature of the inspection fee and for its structures (fee bands and rates). In particular, Hungary has not provided any evidence that the progressive rate structure (rates and turnover brackets) applicable to operators of stores selling fast-moving consumer goods corresponds to a similar progressive pattern observed in the costs incurred by the National Food Chain Safety Office for the inspection of the said undertakings.

               (67)

               Finally, although the progressive rate is allegedly justified under Regulation (EC) No 882/2004 by the need to have a fee proportionate to the greater administrative resources that the competent authorities need to obtain for controls on major market operators, the Commission fails to see how, given the nature of official controls, the control of several outlets of large retailers can be any more expensive or complex than the control of several outlets of franchised operators (which, however, are subject to substantially lower inspection fees given that the turnover of each outlet taken individually is much lower).

               (68)

               In view of the above, the Commission does not consider the differences in tax treatment entailed by the measure to be necessary and proportionate to the objective of fulfilling the obligations laid down by Regulation (EC) No 882/2004.

         4.3.   The Amended Act food chain inspection fee

               (69)

               As indicated in Section 3.2, the food chain inspection fee as amended on 17 November 2015 no longer applies progressive rates. Act CLXXXII of 2015 amending Act XLVI of 2008 on the food chain and its official supervision provides instead a 0,1 % flat rate for all food chain operators. The abolishment of the progressive structure of the fee addresses the State aid concerns raised by that progressive structure in the Opening Decision.

         4.4.   Recovery of the aid

               (70)

               The 2014 amendment was never notified nor declared compatible with the internal market by the Commission. Since the 2014 amendment constitutes State aid within the meaning of Article 107(1) of the Treaty and new aid within the meaning of Article 1(c) of Council Regulation (EU) 2015/1589 (29) that has been put into effect in violation of the standstill obligation laid down in Article 108(3) of the Treaty, that measure also constitutes unlawful aid within the meaning of Article 1(f) of Regulation (EU) 2015/1589.

               (71)

               The consequence of the finding that the measure constitutes unlawful and incompatible State aid is that the aid has to be recovered from its recipients pursuant to Article 16 of Regulation (EU) 2015/1589.

               (72)

               However, as a result of the suspension injunction issued by the Commission in its Opening Decision, Hungary confirmed it had suspended the payment of the food chain inspection fee for those subject to the relevant category of the progressive inspection fee.

               (73)

               Therefore, no State aid has been effectively granted under the measure. For this reason, there is no need for recovery.

         5.   CONCLUSION

               (74)

               The Commission finds that Hungary has unlawfully implemented the aid in question in breach of Article 108(3) of the Treaty on the Functioning of the European Union.

               (75)

               This Decision does not prejudice possible investigations on the compliance of the measure with the fundamental freedoms laid down in the Treaty, notably the freedom of establishment as guaranteed by Article 49 of the Treaty,

         HAS ADOPTED THIS DECISION:
   Article 1
   The progressive fee structure (rates and turnover brackets) applicable to operators of stores selling fast-moving consumer goods introduced in the Hungarian food chain inspection fee through the amendment by Act LXXIV of 2014 constitutes State aid that is incompatible with the internal market within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union which was unlawfully put into effect by Hungary in breach of Article 108(3) of that Treaty.
   Article 2
   Individual aid granted under the scheme referred to in Article 1 does not constitute aid if, at the time it is granted, it fulfils the conditions laid down by the regulation adopted pursuant to Article 2 of Council Regulation (EC) No 994/98 (30) or (EU) 2015/1588 (31) whichever is applicable at the time the aid is granted.
   Article 3
   Hungary shall cancel all outstanding payments of aid under the scheme referred to in Article 1 with effect from the date of adoption of this Decision.
   Article 4
   Hungary shall ensure that this Decision is implemented within 4 months following the date of notification of this Decision.
   Article 5
   This Decision is addressed to Hungary.

      Done at Brussels, 4 July 2016.

            For the Commission

         Margrethe VESTAGER

            Member of the Commission

      (1)  OJ C 277, 21.8.2015, p. 12.

      (2)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 of the treaty on the functioning of the European Union (OJ L 83, 27.3.1999, p. 1).

      (3)  Cf. footnote [1].

      (4)  According to the Hungarian authorities in their response letter of 16 April 2015 to the Commission: ‘The following qualify as activities subject to the inspection fee:

               —

               distribution of animals kept for food production, breeding or experimental purposes,

               —

               distribution of plants, sowing seeds, plant products and propagation and planting stock grown for food or animal feed production purposes,

               —

               food production or distribution, including restaurant catering and public catering,

               —

               production or distribution of animal feed,

               —

               production or distribution of veterinary preparations and veterinary products,

               —

               production or distribution of pesticides, yield-increasing materials or EC fertilisers,

               —

               treatment, use, further processing and transport of by-products of animal origin or placing products made of them on the market,

               —

               operation of a company engaged in the transport of livestock, a facility washing and disinfecting livestock-transporting vehicles, a quarantine station selected for receiving animals of foreign stock, an animal-loading facility, a collection station, a trading site, a feeding and watering station, a resting station or an animal market,

               —

               production or storage of reproductive materials,

               —

               operation of a phytosanitary, veterinary or food or animal feed analysis laboratory,

               —

               distribution of devices used for marking animals.’

      (5)  Act LXXIV of 2014 amending specific tax acts, other acts relating to them and Act CXXII of 2010 on the National Tax and Customs Administration.

      (6)  Fast-moving consumer goods are defined as follows in Article 2(18a) of the Act on Commerce: ‘fast-moving consumer goods: with the exception of products sold in the catering business, those foodstuffs, cosmetics, drugstore products, household cleaners and chemicals, hygiene paper products satisfying the daily needs and requirements of the population which the consumer typically consumes, depletes or replaces within one year’. In accordance with Article 2(18b) of the Act on Commerce, ‘stores selling fast-moving consumer goods’ are ‘those shops for which fast-moving consumer goods constitute the vast majority of the turnover’.

      (7)  For the purpose of the present Decision, reference to operators of stores selling fast-moving consumer goods includes all undertakings subject to the food chain inspection fee with respect to turnovers derived from stores selling fast-moving consumer goods.

      (8)  Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules (OJ L 165, 30.4.2004, p. 1).

      (9)  Case T-351/02 Deutsche Bahn v Commission EU:T:2006:104, paragraph 102.

      (10)  Case C-83/98 P France v Ladbroke Racing Ltd and Commission EU:C:2000:248, paragraphs 48 to 51. Likewise, a measure allowing certain undertakings a tax reduction or to postpone payments of tax normally due can amount to State aid, see Joined Cases C-78/08 to C-80/08 Paint Graphos and Others, EU:C:2011:550, paragraph 46.

      (11)  Case C-143/99 Adria-Wien Pipeline EU:C:2001:598, paragraph 38.

      (12)  Joined Cases C-393/04 and C-41/05 Air Liquide Industries Belgium EU:C:2006:403, paragraph 30 and Case C-387/92 Banco Exterior de Espana EU:C:1994:100, paragraph 14.

      (13)  See Case C-66/02 Italy v Commission EU:C:2005:768, paragraph 78; Case C-222/04 Cassa di Risparmio di Firenze and Others EU:C:2006:8, paragraph 132; Case C-522/13 Ministerio de Defensa and Navantia EU:C:2014:2262, paragraphs 21 to 31. See also point 9 of the Commission notice on the application of the State aid rules to measures relating to direct business taxation (OJ C 384, 10.12.1998, p. 3).

      (14)  See, for example, Case C-279/08 P Commission v Netherlands (NOx) [2011] EU:C:2011:551; Case C-143/99 Adria-Wien Pipeline EU:C:2001:598; Joined Cases C-78/08 to C-80/08, Paint Graphos and others EU:C:2011:550; Case C-308/01 GIL Insurance EU:C:2004:252.

      (15)  Commission Notice on the application of the State aid rules to measures relating to direct business taxation (OJ C 384, 10.12.1998, p. 3).

      (16)  See above footnote 4.

      (17)  Joined Cases C-106/09 P and C-107/09 P Commission and Spain v Government of Gibraltar and United Kingdom EU:C:2011:732.

      (18)  Ibid, paragraph 92.

      (19)  Case C-487/06 P British Aggregates v Commission EU:C:2008:757, paragraphs 85 and 89 and the case-law cited, and Case C-279/08 P Commission v Netherlands (NOx) EU:C:2011:551, paragraph 51.

      (20)  Joined Cases C-106/09 P and C-107/09 P Commission and Spain v Government of Gibraltar and United Kingdom EU:C:2011:732. See also, by way of analogy, Case C-385/12 Hervis Sport- és Divatkereskedelmi Kft. EU:C:2014:47, by which the Court of Justice held: ‘Articles 49 TFEU and 54 TFEU must be interpreted as precluding legislation of a Member State relating to tax on the turnover of store retail trade which obliges taxable legal persons constituting, within a group, “linked undertakings” within the meaning of that legislation, to aggregate their turnover for the purpose of the application of a steeply progressive rate, and then to divide the resulting amount of tax among them in proportion to their actual turnover, if — and it is for the referring court to determine whether this is the case — the taxable persons covered by the highest band of the special tax are “linked”, in the majority of cases, to companies which have their registered office in another Member State.’.

      (21)  See for example Joined Cases C-78/08 to C-80/08 Paint Graphos and others EU:C:2011:550, paragraph 69.

      (22)  Indeed, a flat rate fee already imposes a higher fee on stores with a higher turnover.

      (23)  The exceptions provided for in Article 107(2) of the Treaty concern: (a) aid of a social character granted to individual consumers; (b) aid to make good the damage caused by natural disasters or exceptional occurrences; and (c) aid granted to certain areas of the Federal Republic of Germany.

      (24)  The exceptions provided for in Article 107(3) of the Treaty concern: (a) aid to promote the development of certain areas; (b) aid for certain important projects of common European interest or to remedy a serious disturbance in the economy of the Member State; (c) aid to develop certain economic activities or areas; (d) aid to promote culture and heritage conservation; and (e) aid specified by a Council decision.

      (25)  Case T-68/03 Olympiaki Aeroporia Ypiresies v Commission EU:T:2007:253 paragraph 34.

      (26)  As indicated in recital 4, those comments were forwarded to Hungary for possible comments on 13 October 2015.

      (27)  Information provided to the Directorate General for Health and Food Safety by letters dated 26 February [Ares(2015)835210] and 19 May 2015 respectively [Ares (2015)2083309].

      (28)  See letter of the Hungarian authorities of 7 October 2015 to the Commission services.

      (29)  Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ L 248, 24.9.2015, p. 9).

      (30)  Council Regulation (EC) No 994/98 of 7 May 1998 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to certain categories of horizontal State aid (OJ L 142, 14.5.1998, p. 1).

      (31)  Council Regulation (EU) 2015/1588 of 13 July 2015 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to certain categories of horizontal State aid (OJ L 248, 24.9.2015, p. 1).


title: 2012/589/EU: Decision of the European Parliament of 10 May 2012 on the closure of the accounts of the European Agency for Safety and Health at Work for the financial year 2010

text:
               17.10.2012

               EN

               Official Journal of the European Union

               L 286/252

         DECISION OF THE EUROPEAN PARLIAMENT
   of 10 May 2012
   on the closure of the accounts of the European Agency for Safety and Health at Work for the financial year 2010
   (2012/589/EU)
   THE EUROPEAN PARLIAMENT,

               —

               having regard to the final annual accounts of the European Agency for Safety and Health at Work for the financial year 2010,

               —

               having regard to the Court of Auditors’ report on the annual accounts of the European Agency for Safety and Health at Work for the financial year 2010, together with the Agency’s replies (1),

               —

               having regard to the Council’s recommendation of 21 February 2012 (06083/2012 – C7-0051/2012),

               —

               having regard to Article 319 of the Treaty on the Functioning of the European Union,

               —

               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 (2), and in particular Article 185 thereof,

               —

               having regard to Council Regulation (EC) No 2062/94 of 18 July 1994 establishing a European Agency for Safety and Health at Work (3), and in particular Article 14 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 on the Financial Regulation applicable to the general budget of the European Communities (4), and in particular Article 94 thereof,

               —

               having regard to Rule 77 of, and Annex VI to, its Rules of Procedure,

               —

               having regard to the report of the Committee on Budgetary Control and the opinion of the Committee on Employment and Social Affairs (A7-0117/2012),

               1.

               Approves the closure of the accounts of the European Agency for Safety and Health at Work for the financial year 2010;

               2.

               Instructs its President to forward this Decision to the Director of the European Agency for Safety and Health at Work, 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

         Martin SCHULZ

            The Secretary-General

         Klaus WELLE

      (1)  OJ C 366, 15.12.2011, p. 45.

      (2)  OJ L 248, 16.9.2002, p. 1.

      (3)  OJ L 216, 20.8.1994, p. 1.

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


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E1996C0523(02)

Authorization of State aid pursuant to Article 61 of the EEA Agreement and Article 1 (3) of Protocol 3 to the Surveillance and Court Agreement EFTA Surveillance Authority decision not to raise objections

Official Journal C 149 , 23/05/1996 P. 0009 - 0009

Authorization of State aid pursuant to Article 61 of the EEA Agreement and Article 1 (3) of Protocol 3 to the Surveillance and Court Agreement EFTA Surveillance Authority decision not to raise objections (96/C 149/06)>TABLE>


Avis juridique important

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31964D0390

64/390/EEC: Council Decision of 22 June 1964 amending the Rules of the Transport Committee

Official Journal 102 , 29/06/1964 P. 1602 - 1602 Danish special edition: Series I Chapter 1963-1964 P. 0136  English special edition: Series I Chapter 1963-1964 P. 0145  Greek special edition: Chapter 07 Volume 1 P. 0034  Spanish special edition: Chapter 07 Volume 1 P. 0060  Portuguese special edition Chapter 07 Volume 1 P. 0060

COUNCIL DECISION of 22 June 1964 amending the Rules of the Transport Committee (64/390/EEC)  THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY,  Having regard to the Treaty establishing the European Economic Community, and in particular Articles 83 and 153 thereof;  Having regard to the Opinion of the Commission;  Whereas it is necessary to improve the working of the Transport Committee provided for in Article 83 of the Treaty and to amend to this end the Rules of that Committee, which Rules were laid down by a Council Decision of 15 September 1958 1;  HAS DECIDED AS FOLLOWS:    Sole Article The Rules of the Transport Committee shall be amended as follows:    A. The following sentence shall be added to the first paragraph of Article 4:  "Save for the cases specified in the two following paragraphs, Committee members and their alternates shall remain in office until replaced."       B. The following article shall be added after Article 5:  "Article 5a  After expiry of the term of office of the Chairman and Vice-Chairman, the chair shall be taken, until the election provided for in Article 5, by the oldest of the members referred to in the first paragraph of that Article."            Done at Brussels, 22 June 1964.  For the Council  The President  A. BERTRAND   1 OJ No 25, 27.11.1958, p. 509/58.


title: 2007/802/EC: Commission Decision of 4 December 2007 amending Decision 2002/840/EC as regards the list of approved facilities in third countries for the irradiation of foods (notified under document number C(2007) 5823) (Text with EEA relevance )

text:
               8.12.2007

               EN

               Official Journal of the European Union

               L 323/40

      COMMISSION DECISION

   of 4 December 2007
   amending Decision 2002/840/EC as regards the list of approved facilities in third countries for the irradiation of foods
   (notified under document number C(2007) 5823)
   (Text with EEA relevance)
   (2007/802/EC)
   THE COMMISSION OF THE EUROPEAN COMMUNITIES,
   Having regard to the Treaty establishing the European Community,
   Having regard to Directive 1999/2/EC of the European Parliament and of the Council of 22 February 1999 on the approximation of the laws of the Member States concerning foods and food ingredients treated with ionising radiation (1), and in particular Article 9(2) thereof,
   Whereas:

               (1)

               According to Directive 1999/2/EC a foodstuff treated with ionising radiation may not be imported from a third country unless it has been treated in an irradiation facility approved by the Community.

               (2)

               A list of approved facilities has been established by Commission Decision 2002/840/EC (2).

               (3)

               The Commission received an application for approval of two irradiation facilities in Thailand through their competent authorities. Commission experts inspected the irradiation facilities in order to check whether they comply with the requirements of Directive 1999/2/EC and in particular whether official supervision guarantees that they comply with the requirements of Article 7 of that Directive.

               (4)

               The facilities in Thailand complied with most of the requirements of Directive 1999/2/EC. The shortcomings identified by the Commission have been adequately addressed by the Thai competent authorities.

               (5)

               Decision 2002/840/EC should therefore be amended accordingly.

               (6)

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

         HAS ADOPTED THIS DECISION:
   Article 1
   The Annex to Decision 2002/840/EC is amended in accordance with the Annex to this Decision.
   Article 2
   This Decision is addressed to the Member States.

      Done at Brussels, 4 December 2007.

            For the Commission

         Markos KYPRIANOU

            Member of the Commission

      (1)  OJ L 66, 13.3.1999, p. 16. Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

      (2)  OJ L 287, 25.10.2002. p. 40. Decision as amended by Decision 2004/691/EC (OJ L 314, 13.10.2004, p. 14).

      ANNEX
      The following facilities are added to the list in the Annex to Decision 2002/840/EC:

                     Reference No: EU-AIF 07-2006

                              THAI IRRADIATION CENTER

                              Thailand Institute of Nuclear Technology (Public Organisation)

                              37 Moo 3, TECHNOPOLIS

                              Klong 5, Klong Luang

                              Pathumthani 12120

                              Thailand

                              Tel. (662) 577 4167 to 71

                              Fax (662) 577 1945

                     Reference No: EU-AIF 08-2006

                              ISOTRON (THAILAND) LTD

                              Bangpakong Industrial Park (Amata Nakorn)

                              700/465 Moo 7, Tambon Donhuaroh,

                              Amphur Muang,

                              Chonburi 20000

                              Thailand

                              Tel. (66) (0) 38 458431 to 4

                              Fax (66) (0) 38 458435


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31994D0158

Council Decision of 7 March 1994 extending the application of Decision 93/603/CFSP concerning the joint action decided on by the Council on the basis of Article J.3 of the Treaty on European Union on support for the convoying of humanitarian aid in Bosnia and Herzegovina

Official Journal L 070 , 12/03/1994 P. 0001 - 0001

COUNCIL DECISION of 7 March 1994 extending the application of Decision 93/603/CFSP concerning the joint action decided on by the Council on the basis of Article J.3 of the Treaty on European Union on support for the convoying of humanitarian aid  in Bosnia and Herzegovina (94/158/CFSP)THE COUNCIL OF THE EUROPEAN UNION,  Having regard to the Treaty on European Union, and in particular Article J.3 thereof,  Having regard to Council Decision 93/603/CFSP on 8 November 1993 concerning the joint action decided upon by the Council on the basis of Article J.3 of the Treaty on European Union on support for the convoying of humanitarian aid in Bosnia and  Herzegovina (1), in particular point 4,  HAS DECIDED AS FOLLOWS:  1. The application of Decision 93/603/CFSP is extended until 30 September 1994.  2. The present Decision shall enter into force on today's date.  3. This Decision will be published in the Official Journal.  Done at Brussels, 7 March 1994.  For the Council The President Th. PANGALOS  (1) OJ No L 286, 20. 11. 1993, p. 1. Decision supplemented by Decision 93/729/CFSP (OJ No L 339, 31. 12. 1993, p. 3).


title: 2005/19/EC, Euratom: Council Decision of 22 December 2004 appointing an Austrian member of the Economic and Social Committee

text:
               14.1.2005

               EN

               Official Journal of the European Union

               L 11/29

         COUNCIL DECISION
   of 22 December 2004
   appointing an Austrian member of the Economic and Social Committee
   (2005/19/EC, Euratom)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community, and in particular Article 259 thereof,
   Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 167 thereof,
   Having regard to the Council Decision 2002/758/EC, Euratom of 17 September 2002 appointing the members of the Economic and Social Committee for the period from 21 September 2002 to 20 September 2006 (1),

         Having regard to the nomination submitted by the Austrian Government,
   Having obtained the opinion of the Commission of the European Union,
   HAS DECIDED AS FOLLOWS:
   Sole Article
   Mr Hans KLETZMAYR is hereby appointed a member of the Economic and Social Committee in place of Mr Rudolf STRASSER for the remainder of the latter's term of office, which runs until 20 September 2006.

      Done at Brussels, 22 December 2004.

            For the Council

            The President

         C. VEERMAN

      (1)  OJ L 253, 21.9.2002, p. 9.


title: Council Decision of 24 July 2008 appointing one member of the Management Board of the European Chemicals Agency

text:
               29.7.2008

               EN

               Official Journal of the European Union

               C 190/1

      COUNCIL DECISION

   of 24 July 2008
   appointing one member of the Management Board of the European Chemicals Agency
   (2008/C 190/01)
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty establishing the European Community,
   Having regard to Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and establishing a European Chemicals Agency (1), and in particular Article 79 thereof,
   Whereas:

               (1)

               Article 79 of Regulation (EC) No 1907/2006 provides that the Council should appoint as Members of the Management Board of the European Chemicals Agency one representative from each Member State.

               (2)

               By Decision of 7 June 2007 (2) the Council appointed 27 members of the Management Board of the European Chemicals Agency.

               (3)

               The Danish Government has informed the Council of its intention to replace the Danish representative on the Management Board and has submitted a nomination for a new representative, who should be appointed for a period which runs until 31 May 2011,

         HAS DECIDED AS FOLLOWS:
   Article 1
   Mr Per NYLYKKE, of Danish nationality, born on 19 January 1965, shall be appointed member of the Management Board of the European Chemicals Agency in place of Mr Helge ANDREASEN for the period from 30 July 2008 to 31 May 2011.
   Article 2
   This Decision shall be published in the Official Journal of the European Union.

      Done at Brussels, 24 July 2008.

            For the Council

            The President

         B. HORTEFEUX

      (1)  OJ L 396, 30.12.2006, p. 1.

      (2)  OJ C 134, 16.6.2007, p. 6.