title: Council Decision of 7 November 1974 on the conclusion of the Agreement between the European Economic Community and the Republic of Bolivia on the supply of common wheat as food aid

text:
24. 3 . 75                         Official Journal of the European Communities                         No L 75 / 1
                                                          II
                                     (Acts whose publications is not obligatory)
                                                 COUNCIL
                                               COUNCIL DECISION
                                                of 7 November 1974
               on the conclusion of the Agreement between the European Economic Community and
                        the Republic of Bolivia on the supply of common wheat as food aid
                                                    (75/ 175/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                      HAS DECIDED AS FOLLOWS :
                                                                                Article 1
Having regard to the Treaty establishing the
European Economic Community, and in particular                The Agreement between the European Economic
Articles 113 , 114 and 228 thereof;                           Community and the Republic of Bolivia on the
                                                              supply of common wheat as food aid is hereby
                                                              concluded on behalf of the Community.
Having regard to the recommendation from the
Commission ;                                                  The text of the Agreement is annexed to this
                                                              Decision.
                                                                                Article 2
Whereas the European Economic Community has
concluded the 1971 Food Aid Convention ;                      The President of the Council is hereby authorized to
                                                              designate the persons empowered to sign the
                                                              Agreement and to confer on them the necessary
Whereas by its letter of 19 February 1974, the                powers to bind the Community.
Republic of Bolivia has requested food aid ;
                                                              Done at Brussels, 7 November 1974.
Whereas in view of the cereal supply situation in                                       For the Council
that country the latter should be accorded, under the                                     The "    President
Community food-aid programme for 1973/74, and
by way of gift, 5 000 metric tons of common wheat,                                          A. TARROT


title: Council Decision of 8 May 1964 on the conclusion of a Trade Agreement between the European Economic Community and the State of Israel

text:
                                  Official Journal of the European Communities                            77
1517/64                OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES                                  13.6.64
                                              COUNCIL DECISION
                                                   of 8 May 1964
        on the conclusion of a Trade Agreement between the European Economic Community and
                                                 the State of Israel
                                                   (64/35 7/EEC)
        THE COUNCIL OF THE EUROPEAN COMMUNITIES,
        Having regard to the Treaty establishing the European Economic Community , and in partic
        ular Articles 111 , 1 14 and 228 thereof;
        Having regard to Council Decisions of 25 September 1962, 2 April 1963 and 10 March 1964
        on the terms of reference given to the Community delegation for the negotiations with the
        State of Israel;
        Having regard to the report from the Commission,
        HAS DECIDED AS FOLLOWS :
                                                      Article 1
        The Trade Agreement between the European Economic Community and the State of Israel is
        concluded on behalf of the Community. The Agreement is annexed to this Decision.
                                                      Article 2
        The President of the Council is hereby authorized to designate the persons empowered to sign
        the Agreement and to confer on them the powers required in order to bind the Community .
        Done at Brussels, 8 May 1964.
                                                                                For the Council
                                                                                The President
                                                                                H. FAYAT
 ---pagebreak--- 78                                          Official Journal of the European Communities
1518/64                     OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES                                                                       13.6.64
                                                            TRADE AGREEMENT
                             between the European Economic Community and the State of Israel
                                                                    (64/358/EEC)
                  (Only the Dutch, French, German, Italian and Hebrew texts of this Agreement are authentic)
         THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY, of the one part, and
         THE GOVERNMENT OF THE STATE OF ISRAEL, of the other part,
        Determined to consolidate and extend the economic and trade relations existing between the
        State of Israel and the Member States of the European Economic Community ;
        Recognizing the importance of the harmonious development of trade between the Contract
         ing Parties;
        Desiring to establish the basis for a progressive expansion of trade with each other;
        Have decided, in pursuance of those aims, to conclude this Trade Agreement and to this end
        have designated as their Plenipotentiaries :
        THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY :
        Mr Henri Fayat, President in Office of the Council of the European Economic Commu
        nity, Minister attached to the Ministry for Foreign Affairs of the Kingdom of Belgium;
        Mr Walter Hallstein, President of the Commission of the European Economic Commu
        nity ;
        THE GOVERNMENT OF THE STATE OF ISRAEL :
             Mrs Golda Meir, Minister for. Foreign Affairs;
             Mr Akiva Govrin, Minister for External Trade and the Industrialization of the Develop
             ment Areas ;
             Mr Amiel Najar, Ambassador, Head of the Israel Mission to the European Communities;
        HAVE AGREED AS FOLLOWS :
                                                                       Article 1
        For the period of this Agreement the duties in the Common Customs Tariff of the European
        Economic Community on the products set out in the following table shall be suspended at the
        levels indicated therein.
              CCT heading                                            Description
                   No                                                                                Rate of duty
        ex 08.01 E                Avocados                                                                                8%
             08.02 D               Grapefruit                                                                               7-2 %
        ex 20.07 B II             Grapefruit juice (')                                                                       171 %
        (') The Community shall be entitled to levy, over and above the duty, as additional duty, corresponding to the import charges borne by
            sugar, on the quantity of sugar of various kinds (sucrose value) contained in this product in eiccss of 13 per cent by weight.
 ---pagebreak---                                                  Official Journal of the European Communities                                                      79
                    CCT heading                                               Description                                   Rate of duty
                         No
               ex  28.40 B 11           Dicalcium phosphate containing less than 0-2 per cent fluorine
                                        and more than 0 01 per cent iron                                                9-6 %
               ex  29.02 A III          Bromothane for agricultural use 1                                               17%
               ex  29.35 O              Furazolidone                                                                    12-8 %
               ex  29.35 O              Ethoxyquinoline                                                                 12-8 %
               ex  29.35 O              Nitrofurazone                                                                   12-8 %
               ex  38.11 C              Preparations based on ethylene dibromide containing not more
                                        than 70 per cent ethylene dibromide (1 ,2 - dibromoethane), put
                                        up in the form of emulsions containing an emulsifying agent in
                                        the proportion of 3 to 5 per cent and containing xylene or petrol
                                        eum as a diluting agent                                                         10%
                   42.03 B III          Gloves, including mittens, other                                                15-2 %
               ex  60.03                Stockings, of man-made fibres, finished or unfinished                           17-6 %       .
               ex  60.05 A              Bathing costumes                                                                16 8 %
               ex  60.05 A              Babies' outer garments                                                          16 8 %
               ex  60.06 B              Bathing costumes                                                                16%
               ex  61.01                Men's outer garments of man-made fibres                                         16%
               ex  61.02 B              Women's outer garments of man-made fibres                                       16%
               ex  61.02 B              Bathing costumes                                                                16%
               ex  68.12                Tube and pipe fittings of asbestos-cement                                     • 10-4 %
               ex  70.05                ' Horticultural' glass 1                                                        8%
                                                                                with min. charge
                                                                                of 0-8 ua per
                                                                                100 kg gross
                                                                                weight -
               ex  76.03                Aluminium strips for Venetian blinds                                            12%
               ex  76.06                Aluminium tubes and pipes for irrigation                                        15-2 %
               1  Entry under this subheading is subject to conditions to be determined by the competent authorities.
                                                                                Article 2
               The Contracting Parties take note that, within the framework ofthis Agreement and for the period
               thereof, the Member States indicated in the following table will ensure immediate application
               of the Common Customs Tariff duties resulting from the provisions of Article 1 in respect of the
               products listed in that table and up to the levels specified therein.
   CCT heading                                                      Description                                             Rate of duty    Member
       No                                                                                State
08.01              Avocados                                                                                8%             Benelux
                                                                                Italy
08.02 D            Grapefruit                                                                                7-2 %          Benelux
                                                                                France
                                                                                Italy
20.07 B 11        Grapefruit juice 1                                                                                17 1 %        Germany
                                                                                Benelux
                                                                                France
                                                                                Italy 2
28.40 B II         Dicalcium phosphate containing less than 0-2 per cent fluorine and more than 0 01
                   per cent iron                                                                                9-6 %          Germany
                                                                                Benelux
                                                                                France
                                                                                Italy
29.02 A III        Bromothane for agricultural use 3                                                                      17 %           France
                                                                                23%            Italy
29.35 O           Furazolidone                                                                                12-8 %         France
29.35              Ethoxyquinoline                                                                                12-8 %         France
29.35             Nitrofurazone                                                                                12 8           France
 ---pagebreak--- 80                                                       Official Journal of the European Communities
       CCT heading                                                               Description                                                     Rate of duty
                                                                                Member
            No                                                                                State
    38.11 C                   Preparations based on ethylene dibromide containing not more than 70 per cent
                              ethylene dibromide ( 1,2 - dibromoethane), put up in the form of emulsions contain                              10%                  Benelux
                              ing an emulsifying agent in the proportion of 3 to 5 per cent and containing xylene                              10%                   Francie
                               or petroleum as a diluting agent                                                                                10%                  Italy
     42.03 B III              Gloves, including mittens, other                                                                                15-2 %               Germany
                                                                                Benelux
                                                                                France
                                                                                Italy
      60.03                   Stockings of man-made fibres, finished or unfinished                                                             17 6 %               Benelux
                                                                                France
                                                                                Italy
      60.05 A                 Bathing costumes                                                                                16 8 %               Benelux
                                                                                France
                                                                                Italy
      60.05 A                 Babies' outer garments                                                                                168                  Benelux
   y                                                                                France
                                                                                Italy
      60.06 B                 Bathing costumes                                                                                16%                  Benelux
                                                                                France
                                                                                Italy
      61.01                    Men's outer garments of man-made fibres                                                                         16%                  Benelux
                                                                                France
                                                                                Italy ^     ^
      61.02 B                 Women's outer garments of man-made fibres                                                                        16%                  Benelux .
                                                                                France
                                                                                Italy
 ex 61.02 B                   Bathing costumes                N                                                                                16%                  Benelux
                                                                                France
                                                                                Italy
 ex 68.12                     Tube and pipe fittings of asbestos-cement                                                                        10-4 %               Germany
                                                                                France
                                                                                Italy
 ex 70.05                     ' Horticultural ' glass 3                                                                                8%
                                                                                with min.
                                                                                charge of
                                                                                0-8 ua per            Germany
                                                                                100 kg               France
                                                                                gross weight          Italy
 ex 76.03                     Aluminium strips for Venetian blinds                                                                             12%                  Germany
                                                                                France
                                                                                Italy
ex 76.06                      Aluminiums tubes and pipes for irrigation                                                                        15 2 %               France
                                                                                Italy
1   The Community shall be entitled to levy, over and above the duty, an additional duty, corresponding to the import charges borne- by sugar, on the quantity of sugar of various
    kinds (sucrose value) contained in this product in excess of 13 % by weight.
2  For tariff subheadings exceeding 171 % .
3   Entry under this subheading is subject to conditions to be determined by the competent authorities.
                                                                                Article 3
                    The Contracting Parties take note that, within the framework ofthis Agreement and for the period
                    thereof, the Member States indicated in the following table will ensure immediate application of
                    the Common Customs Tariff duties in respect of the products in that Table.
       CCT heading                                                               Description
                                                                                Member
             No                                                                                Rate of duty           State
ex 08.02 A I                 Oranges from 1 April to 14 June                                                                                15%                   France
ex 08.02 A II                Oranges from 16 October to 31 March                                                                              20 %                  France
ex 07.04 B                   Tomatoes, dehydrated                                                                                16%                   Germany
ex 07.04 B                   Other vegetables (other than potatoes, cauliflowers, onions and mushrooms) dried,
                              dehydrated or evaporated                                                                                16%                   Germany
 ---pagebreak---                                                          Official Journal of the European Communities                                                                      81
       OCT heading                                                                                Member
                                                                                Description                                                 Rate of duty          States
            No
ex 07.04 B                      Other vegetables (other than mushrooms) broken or in powder '                                              16%                  Germany
      20.07 B II                Juice of citrus fruit of a specific 1 -33 or less density at 15°C :
                                    (a) Orange juice                                                                                20%                   France
                                ex (b) Other, excluding grapefruit juice                                                                  19%                   France
      68.13 B II (b)            Asbestos thread :
                                1 . With steel core                                                                                n %                  France
                                2 . Other                                                                                12%                   France
1    In respect of these products the Common Customs Tariff duty will be applied by the Federal Republic of Germany from the date on which that country completes the internal
     measures necessary to that end .
                                                                                Article 4
                      The Contracting Parties take note that, within the framework ofthis Agreement and for the period
                      thereof, the measures for liberalization or relaxation of quantitative restrictions indicated in the
                      following table will be taken by the Member States in respect of the products listed in that table.
                                                                                Member           Liberalization
        CCT heading                                                               Description                                             States            Measures
             No
ex 20.06 B II (a)               Grapefruit segments                                                                                France          Liberalization
        and II (b)
ex 20.07 B II                   Orange juice                                                                                France           Increase of
                                                                                the 1963 quota
ex 28.13 F                      Hydrobromic acid                                                                                Italy           Liberalization
      28.33                     Bromides, oxybromides, bromates and perbromates, and hypobromites                                      Italy           Liberalization
ex 29.02 A III                  Ethylene dibromide                                                                                Italy           Liberalization 1
ex 29.02 A III                  Bromomethane for agricultural use                                                                      Italy           Liberalization
ex 31.04 A                      Potassium sulphate                                                                                Italy           Liberalization
 1 • In respect of quantities re-exported after processing (a ' remtegro' automatic licence scheme ).
                                                                                Article 5
                      The Government of the State of Israel declares its readiness to consider sympathetically any
                      proposal which may be submitted to it with a view to facilitating imports from the Communi
                      ty-
                                                                                A rticle 6
                      A Joint Committee shall be established consisting of representatives of the Community and
                      representatives of the Government of the State of Israel . The Joint Committee shall ensure the
                      proper execution of the Agreement and shall study the development of trade between the
                      Community and the State of Israel ; it may suggest to the competent authorities means for the
                      improvement thereof.
                     The Joint Committee shall meet once a year at a date fixed by mutual agreement. Extraordi
                      nary meetings may be called in.urgent cases at the request of one of the Contracting Parties.
                                                                                Article 7
                      The Protocol which the Contracting Parties have agreed to annex to the Agreement shall
                      form an integral part thereof.
                                                                                Article 8
                      This Agreement is concluded for a period of three years. This period may be extended for a
                      year, renewable by agreement between the Contracting Parties .
 ---pagebreak--- 82                         Official Journal of the European Communities
                                              Article 9
   Subject to the exception provided for in Article 3, this Agreement shall enter into force on 1
   July 1964, corresponding to 21 Tammuz 5724 of the Hebrew calendar.
                                             Article 10
   This Agreement is drawn up in two copies in the Dutch, French, German, Italian and
   Hebrew languages, each of these texts being equally authentic.
   In witness whereof, the undersigned Plenipotentiaries have signed this Agreement.
   Done at Brussels this fourth day of June in the year one thousand nine hundred and
   sixty-four, corresponding to the twenty-fourth day of Siwan in the year five thousand seven
   hundred and twenty-four of the Hebrew calendar.
               For the Council                            For the Government ofthe State ofIsrael
    ofthe European Economic Community                                   Golda MEIR
                Henry FAYAT                                           Akiva GOVRIN
             Walter HALLSTEIN                                         Amiel NAJAR
                                            PROTOCOL
    annexed to the Trade Agreement between the European Economic Community and the State
                                                of Israel
                                            (64/359/EEC)
   THE CONTRACTING PARTIES,
   HAVE AGREED AS FOLLOWS :
   If the Community should conclude with one or more third countries which are major produc
   ers of oranges an agreement which could substantially affect the demand for that product on
   the Community market, the question shall be examined by the Joint Committee.
   Done at Brussels this fourth day on June in the year one thousand nine hundred and
   sixty-four, corresponding to the twenty-fourth day of Siwan in the year five thousand seven
   hundred and twenty-four of the Hebrew calendar.
               For the Council                            For the Government ofthe State ofIsrael
   ofthe European Economic Community                                    Golda MEIR
                Henry FAYAT                                           Akiva GOVRIN
             Walter HALLSTEIN                                          Amiel NAJAR


Avis juridique important

|

31987D0210

87/210/EEC: Commission Decision of 23 March 1987 accepting undertakings given in connection with the anti-dumping proceeding concerning imports of outboard motors originating in Japan and terminating the investigation

Official Journal L 082 , 26/03/1987 P. 0036 - 0039

*****COMMISSION  DECISION  of 23 March 1987  accepting undertakings given in connection with the anti-dumping proceeding concerning imports of outboard motors originating in Japan and terminating the investigation  (87/210/EEC)  THE COMMISSION OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Regulation (EEC) No 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community (1), and in particular Article 10 thereof,  After consultations within the Advisory Committee as provided for by the above Regulation,  Whereas:  A. Procedure  (1) On 26 November 1985, the Commission reopened the anti-dumping investigation concerning outboard motors originating in Japan following a request for review lodged by Community producers representing a major proportion of the Community production of outboard motors (2). The request for review contained evidence of renewed dumping and renewed injury caused thereby which was considered sufficient to warrant the reopening of the investigation. The products referred to in the request for review are outboard motors up to and including 63 kW (85 hp) falling within subheading ex 84.06 B of the Common Customs Tariff, corresponding to NIMEXE codes 84.06-10 and ex 84.06-12.  (2) The Commission officially so advised the exporters and importers known to be concerned, the representatives of the exporting countries and the complainant, and gave the parties directly concerned the opportunity to make known their views in writing and to request a hearing.  All but one of the Community producers, the exporters concerned and some importers, as well as two associations representing boat builders and users, made their views known in writing. In addition, one Community producer and all the exporters concerned requested, and were granted, a hearing.  (3) The Commission sought and verified all information it considered necessary and carried out investigations at the premises of the following:  EEC producers:  - Outboard Marine Belgium SA, Bruges, Belgium,  - Outboard Marine Deutschland GmbH, Mannheim, Germany,  - Outboard Marine France, Paris, France,  - Outboard Marine UK, Northampton, United Kingdom,  - Selva SpA, Tirano, Italy;  Exporters:  - Honda Motor Co., Tokyo, Japan,  - Suzuki Motor Co., Hamomatsu, Japan,  - Tohatsu Corporation, Tokyo, Japan,  - Yamaha Motor Co., Hamamatsu, Japan;  Importers:  - Honda Deutschland GmbH, Offenbach, Germany,  - Marine Power-Europe Inc., Verviers, Belgium,  - Suzuki Deutschland GmbH, Heppenheim, Germany,  - Yamaha Motor Europe NV, Uithoorn, Netherlands,  - Yamaha Motor France, Paris, France,  - Yamaha Motor Netherlands, Uithoorn, Netherlands,  - Mitsui Machinery Sales (UK) Ltd, Chessington, United Kingdom.  The investigation of dumping covered the period from 1 January to 31 October 1985.  B. Scope of the investigation  (4) The Commission found that, during the investigation period, by far the largest of the Community producers ceased producing outboard motors of above 18,5 kW (25 hp). The only other complainant Community producer produces only relatively small quantities of outboard motors of more than 18,5 kW and, in 1985, accounted for less than 5 % of total Community production of such motors. The Commission, consequently, did not find it appropriate to cover in its investigation outboard motors of up to 63 kW (85 hp) as was requested in the application for review.  (5) It was, however, considered reasonable for the present investigation to cover outboard motors of up to 26 kW (35 hp), since motors of 26 kW closely resemble 18,5 kW outboard motors with regard to motor capacity, design, weight and technical features.  C. Normal value  (6) For Honda Motor Co. and Yamaha Motor Co., the Commission established the normal value on the basis of domestic prices actually paid or payable in the ordinary course of trade for the like product, since these prices were shown to be profitable.  (7) For Suzuki Motor Co. and Tohatsu Corporation, the Commission determined the normal value on the basis of constructed value, since the sales of these two companies on the domestic market did not provide a sufficient basis for the calculation of normal value. The constructed value was determined by adding the cost of production, including a reasonable amount for selling, administrative and other general expenses, and a reasonable margin of profit.  D. Export price  (8) Export prices were determined by the Commission on the basis of the prices actually paid or payable for the products sold for export to the Community.  (9) Where exports were made to subsidiary companies in the Community export prices were constructed on the basis of the prices at which the imported product was first resold to an independent buyer, suitably adjusted to take account of all costs incurred between importation and resale including customs duty, and of a profit margin of 5 % considered reasonable in the light of the profit margins of independent importers of the product concerned.  E. Comparison  (10) In comparing normal value with export prices, the Commission took account, where appropriate, of differences affecting price comparability, in particular discounts and rebates, credit terms, transport, insurance, handling, packing and salesmen's salaries. Due allowance for such differences was made where claims in these areas could be satisfactorily demonstrated. All comparisons were made at ex-works level and for each individual transaction.  F. Margins  (11) The above examination of the facts shows the existence of dumping in respect of all exporters involved, the margin of dumping being equal to the amount by which the normal value as established exceeds the price for export to the Community.  (12) These margins vary according to the exporter, the importing Member State and the type of outboard motor concerned, the weighted average margin for each of the exporters investigated being as follows:  1.2 // - Honda Motor Co.:   // 16,2 %,   // - Suzuki Motor Co.:   // 51,6 %,   // - Tohatsu Corporation:   // 43,3 %,  // - Yamaha Motor Co.:   // 53,2 %.  G. Injury  (13) In 1983, after having carried out an anti-dumping investigation, the Commission, by Regulation (EEC) No 1500/83 (1), established that dumped imports of outboard motors originating in Japan had caused injury to the Community industry concerned and that protective measures were necessary. The Commission subsequently, by Decision 83/452/EEC (2), accepted undertakings by most of the exporters concerned with a view to eliminating the injury by voluntary price increases for the exported products. For all other exporters a definitive anti-dumping duty was imposed by Council Regulation (EEC) No 2809/83 (3).  (14) While these measures contributed to an improvement of the position of the Community producers of outboard motors in 1984, the situation of this industry deteriorated again in 1985. It is still characterized by low capacity utilization, considerable losses and high import penetration.  (15) With regard to the renewed injury caused by the dumped imports, the evidence available to the Commission shows, more specifically, that imports of outboard motors into the Community from Japan fell from 67 204 units in 1983 to 46 654 units in 1984, but increased again to 56 577 units in 1985. This resurgence represents an increase of 21 % in one year.  (16) At the same time, consumption of outboard motors within the Community fell from 161 209 units in 1983 to 127 959 units in 1984, but increased again to 137 465 units in 1985, i. e. by 7,4 %. Consequently, the market share in the Community held by outboard motors imported from Japan, having fallen from 41,7 % in 1983 to 36,5 % in 1984, went up again to 41,2 % in 1985.  (17) The market share held by Community producers of outboard motors during that three-year period went up from 50,3 % to 53,4 %, but decreased again to 53,2 %.  (18) With regard to the prices at which the dumped imports from Japan were sold within the Community during the investigation period, clear cases of price undercutting were found in some instances only. It was found that, in view of the fact that imports from Japan were regaining market share, the Community industry was unable to raise its prices above the price levels set out in the undertakings accepted in 1983. From 1984, however, these prices proved to be insufficient to substantially remedy the injury suffered by the Community producers.  (19) As a consequence, the Community outboard motor industry continued to incur losses, which increased, in particular, in 1985. Furthermore, employment in this industry decreased by another 7 % from 1983 to 1985 and declined by another 20 % due to dismissals already notified to personnel during the investigation period.  (20) The Commission considered whether injury has been caused by other factors, in particular the volume of imports of outboard motors from other third countries. It was found, however, that those imports declined from 12 964 units in 1983 to 7 612 units in 1985, with a consequent reduction in market share from 8 % to 5,6 %. The Commission, therefore, determines that the effects of the dumped imports of outboard motors originating in Japan, taken in isolation, have to be considered as constituting material injury to the Community industry concerned.  H. Community interest  (21) During the course of its investigation, the Commission received submissions from two associations representing boat builders in two of the Member States. Those submissions warned, in general terms, against the negative effects on the boat-building industry of any price increase for outboard motors.  (22) The Commission asked both associations to substantiate further their arguments, in particular with regard to exact figures relating, for example, to price increases for boats, the development of price ratios between boats and outboard motors, as well as financial losses and reduction in employment. The subsequent replies did not provide such figures, but only reiterated the general concern and pointed to the adverse effect of protective measures on importers and dealers of outboard motors.  (23) The Commission has weighed these arguments, which remained unsubstantiated for the most part, against the serious difficulties still facing the Community outboard-motor industry and has come to the conclusion that it is in the Community's interest that action be taken.  I. Undertakings  (24) The exporters concerned were informed of the main findings of the investigation and commented on them. Undertakings were subsequently offered by Honda Motor Co., Suzuki Motor Co., Tohatsu Corporation, including undertakings offered by Marine Power Europe Inc. and Nissan Motor Nederland BV on behalf of Tohatsu Corporation, and Yamaha Motor Co., including an undertaking by Marine Power Europe Inc. on behalf of Yamaha Motor Co.  (25) The effect of the said undertakings will be to ensure that export prices to the Community will be at a level sufficient to eliminate injury to the Community industry. The price increases foreseen in these undertakings in no case exceed the dumping margins found in the investigation. Moreover, it appears that correct operation of these undertakings can be effectively monitored, in particular since the Commission during its investigation did not observe any violations of the undertakings previously in force. (26) In these circumstances, the undertakings offered are considered acceptable and the investigation with regard to these exporters may, therefore, be terminated without the imposition of anti-dumping duties.  (27) No objection to this course was raised in the Advisory Committee,  HAS DECIDED AS FOLLOWS:  Article 1  The undertakings given by Honda Motor Co., Tokyo, Suzuki Motor Co., Hamamatsu, Tohatsu Corporation, Tokyo, including the undertakings given by Marine Power Europe Inc., Belgium, and Nissan Motor Nederland BV, Netherlands on behalf of Tohatsu Corporation, and Yamaha Motor Co., Hamamatsu, including the undertaking given by Marine Power Europe Inc. on behalf of Yamaha Motor Co., in connection with the anti-dumping proceeding concerning imports of outboard motors falling within Common Customs Tariff subheading ex 84.06 B, corresponding to NIMEXE codes 84.06-10 and ex 84.06-12, originating in Japan, are hereby accepted.  Article 2  The anti-dumping investigation referred to in Article 1 is hereby terminated.  Done at Brussels, 23 March 1987.  For the Commission  Willy DE CLERCQ  Member of the Commission  (1) OJ No L 201, 30. 7. 1984, p. 1.  (2) OJ No C 305, 26. 11. 1985, p. 3.  (1) OJ No L 152, 10. 6. 1983, p. 18.  (2) OJ No L 247, 7. 9. 1983, p. 18.  (3) OJ No L 275, 8. 10. 1983, p. 1.


title: Commission Decision (EU) 2016/1846 of 4 July 2016 on the measure SA.41187 (2015/C) (ex 2015/NN) implemented by Hungary on the health contribution of tobacco industry businesses (notified under document C(2016) 4049) (Text with EEA relevance )

text:
               19.10.2016

               EN

               Official Journal of the European Union

               L 282/43

         COMMISSION DECISION (EU) 2016/1846
   of 4 July 2016
   on the measure SA.41187 (2015/C) (ex 2015/NN) implemented by Hungary on the health contribution of tobacco industry businesses

         (notified under document C(2016) 4049)

   (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)

               In March 2015, the Commission became aware of a new health contribution imposed by Hungary on tobacco industry businesses. By letter of 13 April 2015, the Commission sent an information request to Hungary on that measure, by which it also informed the Hungarian authorities that it would consider issuing a suspension injunction decision in accordance with Article 11(1) of Council Regulation (EC) No 659/1999 (2).

               (2)

               By letter of 12 May 2015, Hungary responded to that information request. Hungary did not, however, provide any comments on the possibility of the Commission issuing a suspension injunction.

               (3)

               On 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 health contribution imposed on tobacco industry businesses (the ‘Opening Decision’). The Commission also ordered the immediate suspension of the measure in the Opening Decision.

               (4)

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

               (5)

               The Commission received comments from two interested parties. On 20 October 2015, the Commission forwarded those comments to Hungary, which was given the opportunity to react. Hungary did not react to those comments.

         2.   DETAILED DESCRIPTION OF THE MEASURE

               (6)

               On 16 December 2014, the Hungarian Parliament adopted Act XCIV of 2014 on the health contribution for the year 2015 of tobacco industry businesses (‘the Act’). The Act imposes a tax, referred to as a ‘health contribution’, which is levied on the annual turnover derived from the production and trade of tobacco products in Hungary and applies in addition to existing business taxes in Hungary, in particular, corporate income tax. The tax is levied on authorised warehouse keepers, importers, and registered traders of tobacco products. The stated purpose of the Act is to collect funds for the financing of the health system to increase the quality of health services.

               (7)

               The health contribution tax is due on the annual turnover generated in the year previous to the tax year derived from the production and trade of tobacco products in Hungary, on the condition that the turnover from these activities accounts for at least 50 % of the total annual turnover generated by the undertaking. No deduction of costs is provided, apart from the cost of certain investments in the tax year. The health contribution tax is progressive in nature. The applicable contribution depends on the annual turnover of the taxpayer as follows:

                           —

                           for the part of the turnover below HUF 30 billion: 0,2 % with a minimum of HUF 30 million,

                           —

                           for the part of the turnover between HUF 30 billion and 60 billion: 2,5 %,

                           —

                           for the part of the turnover exceeding HUF 60 billion: 4,5 %.

               (8)

               Pursuant to Section 6(6) of the Act, the tax liability resulting from the health contribution tax can be reduced by up to 80 % of the payable contribution if the company makes investments that comply with the definition set out in point 7 of Article 3(4) of Act C of 2000 on Accounting (4). The reduction is equal to the positive difference between 30 % of the amount accounted for as an investment in the tax year and the amount of State or EU subsidy used for the implementation of the investment project.

               (9)

               The Act provides that a tax declaration has to be submitted by 30 June 2015 and that the health contribution tax has to be paid in 30 days following this deadline.

               (10)

               The Act entered into force on 1 February 2015 and, in its initial version, was supposed to apply on a temporary basis until 31 December 2015. On 24 June 2015, an amendment to the Act was published in the Hungarian Official Journal, which made the health contribution tax permanent.

         3.   THE FORMAL INVESTIGATION PROCEDURE

   3.1.   Grounds for initiating the formal investigation procedure

               (11)

               The Commission opened the formal investigation procedure because it reached the preliminary conclusion that the progressive structure of the health contribution (rates and turnover brackets) and the provisions on the reduction of the tax liability on the condition of making certain investments (hereafter collectively referred to as: ‘the contested measures’) constituted unlawful and incompatible State aid.

               (12)

               The Commission was of the opinion that the progressive tax rates laid down by the Act differentiate between undertakings based on their turnover and grant a selective advantage to undertakings with low turnover and thus smaller undertakings. The Commission was not convinced that undertakings with more significant turnover are able to influence the product market and generate higher negative smoking-related effects on health to such a degree that would justify the application of the progressive tax rates, as the Hungarian authorities had argued.

               (13)

               The Commission was equally of the opinion that the possibility to reduce a taxpayer's tax liability on the condition of making investments grants a selective advantage to undertakings which have made such investments. The Commission further observed that the possibility to reduce the tax liability in the case of investment, which aims at increasing the production and trading capacity of the undertaking, appeared to be inconsistent with the stated objective of the health contribution tax, which is to create funds for the health system and increase the quality of health services given the fact that smoking plays a prominent role in the development of numerous diseases and significantly contributes to increased health expenses.

               (14)

               The Commission therefore reached the preliminary conclusion that the contested measures appeared to be neither justified by the nature or general scheme of the tax system nor compatible with the internal market.

         3.2.   Comments from interested parties

               (15)

               The Commission received comments from two interested parties who welcomed the Opening Decision and agreed with the Commission's preliminary State aid assessment. They expressed their concerns about possible amendments to the Act and any other similar measures that might be adopted by the Hungarian authorities.

               (16)

               One of the interested parties underlined that the reduction of the tax liability in case of certain investments would apply exclusively to investments in Hungary, since, according to Hungarian excise tax regulations, it is necessary for a company to be incorporated and have a seat of management in Hungary for that company to be licensed to sell or manufacture tobacco in Hungary. Therefore, the investments taken into account for the purposes of the Act are the investments made in Hungary either by domestically owned Hungarian companies or by Hungarian-resident subsidiaries of foreign multinationals.

         3.3.   Position of the Hungarian authorities

               (17)

               The Hungarian authorities do not agree with the findings of the Commission that the contested measures constitute State aid. In essence, they argue that the measures are not selective. Regarding the progressivity of the tax rates, the Hungarian authorities maintain that in the case of public burdens, the reference framework is specified by the tax base and the tax rate (including a system of progressive tax rates) jointly and that companies in the same factual situation are the ones whose turnover is the same. In this sense, under the progressive system of rates, applying tax brackets, the entities with the same projection tax base are subject to the same rate and the calculated amount of the tax is also identical. Therefore, in the view of the Hungarian authorities, the progressive system of tax rates does not create differentiation because companies in the same legal and factual situation are subject to the same tax rate, and thus is not selective.

               (18)

               Regarding the reduction of the tax liability in the case of investment, the Hungarian authorities argue that the Act does not distinguish according to the type or the value of the investment and no distinction is made between the operators carrying out an investment. The businesses implementing the same investment value are in the same legal and factual situation. They stress that the reduction does not apply exclusively to investments that are carried out in Hungary and that the value of all investments may be taken into consideration for the calculation. The Hungarian authorities further note that the calculation of the investment value is subject to the definition of investment and the calculation of the value of investment under the Accounting Act which is beyond the scope of the Act on the health contribution of tobacco industry businesses.

         3.4.   Comments from Hungary on interested parties' comments

               (19)

               Hungary did not react to the comments from the interested parties, which were forwarded to it by letter of 20 October 2015.

         4.   ASSESSMENT OF THE AID

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

               (20)

               According to Article 107(1) of the Treaty, ‘save 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’.

               (21)

               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

               (22)

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

               (23)

               Since the contested measures result from an Act of the Hungarian Parliament, it is clearly imputable to the Hungarian State.

               (24)

               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 (5). In the present case, the Hungarian State waives resources it would otherwise have to collect from undertakings with a lower level of turnover (and thus smaller undertakings), if they had been subject to the same health contribution as undertakings with a higher level of turnover (and thus larger undertakings).

         4.1.2.   Advantage

               (25)

               According to the case-law of the Union Courts, the concept 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 (6). 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 the tax due (7). Although a tax reduction measure does not involve a positive transfer of resources from the State, it gives rise to an advantage by virtue of the fact that 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 (8).

               (26)

               The Act lays down progressive rates of taxation that apply to the annual turnover derived from the production of and trade in tobacco products in Hungary depending on the brackets into which an undertaking's turnover falls. The progressive character of those rates has the effect that the percentage of tax levied on an undertaking's turnover increases progressively depending on the number of brackets within which that turnover falls. This has the result that undertakings with low turnover (smaller undertakings) are taxed at a substantially lower average rate than undertakings with high turnover (larger undertakings). Being taxed at this substantially lower average tax rate mitigates the charges that undertakings with low turnover have to bear as compared with 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.

               (27)

               Similarly, the possibility of reducing an undertaking's tax liability under the Act by up to 80 % in the case of investments carried out in the tax year constitutes an advantage for undertakings that have made such investments, since it reduces their tax base and thus their tax burden as compared with undertakings that cannot benefit from that reduction.

         4.1.3.   Selectivity

               (28)

               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. For fiscal schemes the Court of Justice has established that the selectivity of the measure should in principle be assessed by means of a three-step analysis (9). 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 (10). 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.

         4.1.3.1.   System of reference

               (29)

               In the present case, the reference system is the application of a special health contribution on undertakings in respect of the turnover they derive from the production and trade of tobacco products in Hungary. The Commission does not consider that the progressive rate structure of the health contribution can form a part of that reference system.

               (30)

               As the Court of Justice has held (11), it is not always sufficient to confine the selectivity analysis to whether a 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, sidestepping 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 (12). 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 (13).

               (31)

               Whereas the application of a flat tax levied on the annual turnover derived from the production of and trade in tobacco products in Hungary is an appropriate means to collect funds for the financing of the health system, the progressive tax structure introduced by the Act appears deliberately designed by Hungary to favour certain undertakings over others. Under the progressive tax structure introduced under the Act, the undertakings subject to the tax are subject to different tax rates progressively increasing towards 4,5 %, depending on the brackets into which their turnover falls. Consequently, a different average tax rate applies to undertakings subject to the health contribution depending on the level of their turnover (whether it surpasses the thresholds laid down by the Act).

               (32)

               Because each company is taxed at a different rate, it is not possible for the Commission to identify one single reference rate in the health contribution. 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 undertakings with a high level of turnover, nor why lower rates should apply to undertakings with lower levels of turnover.

               (33)

               The effect of the progressive rate structure introduced by the Act is therefore that different undertakings pay different levels of taxation (expressed as a proportion of their overall annual turnover) depending on their size, since the amount of turnover achieved by an undertaking correlates to a certain extent with the size of that undertaking. However, the stated objective of the health contribution is to collect funds for the health care system and increase the quality of health services in Hungary in the light of the fact that smoking plays a prominent role in the development of numerous diseases and significantly contributes to increased health expenses. The Commission considers that the progressive rate structure of the health contribution does not mirror the relationship between the generation of negative effects on health by the traders and producers of tobacco products and their turnover.

               (34)

               In the light of that objective, the Commission considers all operators subject to the health contribution to be in a comparable legal and factual situation, regardless of their level of turnover, and Hungary has advanced no convincing justification to discriminate between those types of undertakings when it comes to levying the health contribution. The Commission refers, in this regard, to recitals 42 to 48 below. Hungary has therefore deliberately designed the health contribution in such a manner as to arbitrarily favour certain undertakings, namely those with a lower level of turnover (and thus smaller undertakings), and disadvantage others, namely larger undertakings (14).

               (35)

               The reference system is therefore selective by design in a way that is not justified in the light of the objective of the health contribution, which is to collect funds for the Hungarian health system. Consequently, the appropriate reference system in the present case is the imposition of a health contribution on undertakings operating in Hungary based on their turnover, without the progressive rate structure being a part of that system.

         4.1.3.2.   Derogation from the system of reference

               (36)

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

               (37)

               As explained in recital 31, the intrinsic objective of the health contribution tax is to fund the health care system and increase the quality of health care services in Hungary. As further explained in recital 34, all operators involved in the production and trade of tobacco products should be considered to be in a comparable legal and factual situation in the light of that objective, regardless of their size and the level of their turnover.

               (38)

               The progressivity of the health contribution rate structure therefore creates a differentiation amongst undertakings carrying on the activity of production of and trade in tobacco products in Hungary based on their size.

               (39)

               Indeed, due to the progressive character of the rates laid down by the Act, undertakings with turnover falling in lower brackets are subject to substantially lower taxation than undertakings with turnover falling in higher brackets. This has the result that undertakings with low turnover are subject to both substantially lower marginal tax rates and substantially lower average tax rates as compared with undertakings with high levels of turnover, and therefore to substantially lower taxation for the same activities. Hence, the Commission considers that the progressive rate structure introduced by the Act derogates from the reference system consisting in the imposition of a health contribution on all operators involved in the production of and trade in tobacco products in Hungary in favour of undertakings with lower turnover.

               (40)

               Similarly, the possibility of reducing an undertaking's tax liability under the Act by up to 80 % in the case of investment differentiates between undertakings that have made investments and undertakings that have not made investments. However, in the light of the intrinsic objective of the health contribution tax identified above, undertakings that have made investments and undertakings that have not made investments are in a comparable factual and legal situation, since the fact that an undertaking makes investments does nothing to reduce the negative externalities caused by smoking. Quite the contrary, the possibility of reducing an undertaking's tax liability in the case of investments, which aims at increasing the production and trading capacity of the undertaking, appears to be inconsistent with the intrinsic objective of the health contribution tax. Therefore, the Commission considers that the provisions of the Act providing for the reduction of the tax liability in the case of investment differentiate between undertakings that are in a comparable factual and legal situation in the light of the intrinsic objective of the health contribution and thus creates a derogation from the system of reference.

               (41)

               Therefore, the Commission considers that the measures are prima facia selective.

         4.1.3.3.   Justification

               (42)

               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 it is the result of inherent mechanisms necessary for the functioning and effectiveness of the system (15). It is for the Member State to provide such justification. 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.

               (43)

               The Hungarian authorities have argued that the health contribution is due on the manufacturing of and trade in products causing a health risk and is not linked to the profit of the economic operators, whereas the tax rate is adjusted to the load-bearing capacity of the taxable entities. In the view of the Hungarian authorities, the ability to pay and the degree of the risk generated by the undertakings are reflected by their market share and market leadership and, consequently, their price-orienting role rather than by their profitability. Profit, as the basis of the contribution, is the least suitable factor for the expression of the damage to health generated by the subjects of the contribution through their activity. Furthermore, in comparison with undertakings with low turnover, undertakings with more significant turnover and market share are much more able to influence the market of a product than the difference between their levels of turnover. Therefore, considering the objective of the contribution, this will also entail that an economic operator obtaining a higher turnover on the market of tobacco products will also generate exponentially higher negative smoking-related effects on health.

               (44)

               In the present case, given the substantial relative increments of the progressive tax rate, the Commission does not consider that ability to pay can serve as a guiding principle for turnover-based taxation. As opposed to taxes based on profit (16), a turnover-based tax does not take into account costs incurred in the generation of that turnover. Therefore, in the absence of specific evidence to the contrary, it appears doubtful that the mere amount of turnover generated as such — irrespective of the costs incurred — reflects the ability to pay of the undertaking. Furthermore, the Commission is not convinced that, in comparison with undertakings with lower turnover, undertakings with more significant turnover are able to influence the product market and automatically generate higher negative smoking-related effects to such a degree that would justify the application of progressive tax rates in respect of turnover as adopted under the Act.

               (45)

               In any event, the Commission considers that, even if ability to pay and the negative effects on health might be considered to be inherent principles of the turnover-based health contribution, it would only justify a linear tax rate, unless it is shown that ability to pay and the generation of negative effects on health increase progressively with an increase in the turnover. The Commission considers that progressive rates for taxes on turnover can only be justified if the specific objective pursued by a tax indeed requires progressive rates, i.e., for example, if it is shown that the externalities created by an activity that the tax is supposed to tackle also increase progressively. The pattern of the progressivity would also need to be justified. In particular, it would need to be explained why turnover over HUF 60 billion has 22 times the effect on health of turnover below HUF 30 billion. No such justification was provided by Hungary.

               (46)

               The Commission is not convinced that the health damage caused by the manufacturing of and trade in tobacco products would increase progressively with the turnover generated and according to the tax rate increments applicable under the measure. Furthermore, the condition that the turnover derived from the production of and trade in tobacco products accounts for at least 50 % of the total annual turnover generated by the undertaking to be subject to the health contribution also appears to contradict the justification of the tax progressivity based on the effects of tobacco products on health. In view of the tax objective, this requirement would mean that tobacco products marketed by companies whose turnover derived from the production of and trade in tobacco products accounts for less than 50 % do not have negative effects on health like the products marketed by companies with a higher proportion of tobacco products in their turnover. This requirement therefore appears to be inconsistent with the alleged objective of the measure.

               (47)

               As regards the reduction of the tax liability in the case of investments, it cannot be justified by the nature and general scheme of the tax system either. The Commission considers the possibility of reducing the tax liability by up to 80 % in the case of investment to be inconsistent with the intrinsic objective of the health contribution tax. The objective of the health contribution tax is to create funds for the health system and increase the quality of health services given the fact that smoking plays an eminent role in the development of numerous diseases and significantly contributes to increased health expenses. Therefore, the Commission finds the possibility of reducing the tax liability in the case of investment, which aims at increasing the production and trading capacity of the undertaking, to be inconsistent with that objective, since, as already stated in recital 40, such investments would sooner increase the production and trading capacity of the undertaking and thus the negative externalities which the health contribution tax seeks to address. Furthermore, a contribution being based on the taxation of turnover should not take into account any costs.

               (48)

               Accordingly, the Commission does not consider the measures to be justified by the nature and general scheme of the tax system. The measures should therefore be considered to confer a selective advantage on tobacco undertakings with a lower level of turnover (and thus smaller undertakings) and to undertakings that have made investments eligible for a reduction of their tax liability under the health contribution tax.

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

               (49)

               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 measures apply to all undertakings deriving turnover from the production of and trade in tobacco products in Hungary. The Hungarian tobacco industry is open to competition and characterised by the presence of operators from other Member States as well as from international operators, so that any aid in favour of certain industry operators is liable to affect intra-Union trade. To the extent that the measures relieve undertakings with lower levels of turnover and undertakings making eligible investments from a tax liability they would otherwise have been obliged to pay, had they been subject to the same health contribution as undertakings with a high level of turnover and undertakings not making investments, the aid granted under those measures constitute operating aid in that it relieves those undertakings from a charge that they would normally have had to bear in their day-to-day management or normal activities. The Court of Justice has consistently held that operating aid distorts competition (17), so that any aid granted to those undertakings should be considered to distort or threaten to distort competition by strengthening their financial position on the Hungarian tobacco market. Consequently, the measures distort or threaten to distort competition and have an effect on intra-Union trade.

         4.1.5.   Conclusion

               (50)

               Since all the conditions laid down by Article 107(1) of the Treaty are met, the Commission considers that the health contribution tax on tobacco industry businesses laying down a progressive tax structure for tobacco businesses and the reduction of the tax liability on the condition of making certain investments constitutes State aid within the meaning of that provision.

         4.2.   Compatibility of the aid with the internal market

               (51)

               State aid is to be deemed compatible with the internal market if it falls within any of the categories listed in Article 107(2) of the Treaty (18) 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 (19). 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 (20).

               (52)

               The Commission notes that the Hungarian authorities did not provide arguments as to why the measures would be compatible with the internal market and that Hungary did not comment on the doubts expressed in the Opening Decision as regards the compatibility of the measures. The Commission considers that none of the exceptions provided for in the aforementioned provisions of the Treaty apply, since the measures do not appear to aim to achieve any of the objectives listed in those provisions. Consequently, the measures cannot be declared compatible with the internal market.

         4.3.   Recovery of aid

               (53)

               The health contribution of tobacco industry businesses was never notified or declared compatible with the internal market by the Commission. Since the progressive structure of the health contribution and the provisions on the reduction of the tax liability on the condition of making certain investments constitute 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 (21) and have been put into effect in violation of the standstill obligation laid down in Article 108(3) of the Treaty, those measures also constitute unlawful aid within the meaning of Article 1(f) of Regulation (EU) 2015/1589.

               (54)

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

               (55)

               However, as a result of the suspension injunction issued by the Commission in the Opening Decision, Hungary confirmed it had suspended the implementation of the health contribution on tobacco businesses.

               (56)

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

         5.   CONCLUSION

               (57)

               The Commission finds that the health contribution tax on tobacco industry businesses laying down a progressive tax structure for tobacco businesses and the reduction of the tax liability on the condition of making certain investments constitutes State aid within the meaning of Article 107(1) of the Treaty and that Hungary has unlawfully implemented the aid in question in breach of Article 108(3) of the Treaty.

               (58)

               This Decision does not prejudice possible investigations into the compliance of the measures 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 tax rate structure for tobacco businesses and the provisions on the reduction of tax liability on the condition of making certain investments introduced by Hungary through Act XCIV of 2014 on the health contribution of tobacco industry businesses constitute 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 were 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 a Regulation adopted pursuant to Article 2 of Council Regulation (EC) No 994/98 (22) or (EU) 2015/1588 (23), whichever is applicable at the time the aid is granted.
   Article 3
   Individual aid granted under the scheme referred to in Article 1 which, at the time it is granted, fulfils the conditions laid down by a Regulation adopted pursuant to Article 1 of Regulation (EC) No 994/98, repealed and replaced by Regulation (EU) 2015/1588, or by any other approved aid scheme is compatible with the internal market, up to the maximum aid intensities applicable to that type of aid.
   Article 4
   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 5
   Hungary shall ensure that this Decision is implemented within 4 months following the date of notification of this Decision.
   Article 6
   1.   Within 2 months following notification of this Decision, Hungary shall submit a detailed description of the measures already taken and planned to comply with this Decision;
   2.   Hungary shall keep the Commission informed of the progress of the national measures taken to implement this Decision. It shall immediately submit, on simple request by the Commission, information on the measures already taken and planned to comply with this Decision.
   Article 7
   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. 24.

      (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)  In accordance with this Act, ‘investment’ includes the purchase or creation of tangible assets, the production of tangible assets by one's own enterprise, the activity carried out in order to install or use the tangible asset purchased for its intended purpose until its installation or first normal use (transportation, customs clearance, intermediary activity, laying the foundations, installation and any activity related to the purchase of the tangible asset, including design, preparation, arrangement, borrowing and insurance); investments also include activities resulting in the upgrading of an existing tangible asset, the change of its purpose, its conversion or directly increasing its useful life or capacity, together with the other activities listed above and related to such activity.

      (5)  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, paragraph 46.

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

      (7)  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).

      (8)  Joined Cases C-393/04 and C-41/05, Air Liquide Industries Belgium EU: C: 2006:403 and EU: C: 2006:216, paragraph 30 and Case C-387/92 Banco Exterior de España EU: C: 1994:100, paragraph 14.

      (9)  See, for example, Case C-279/08 P Commission v Netherlands (NOx) 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.

      (10)  Commission Notice on the application of the State aid rules to measures relating to direct business taxation.

      (11)  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.

      (12)  Ibid, paragraph 92.

      (13)  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.

      (14)  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, in 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.’.

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

      (16)  See the Commission notice on the application of the State aid rules to measures relating to direct business taxation, paragraph 24. The statement on the redistributive purpose that can justify a progressive tax rate is explicitly only made as regards taxes on profits or (net) income, not as regards taxes on turnover.

      (17)  Case C-172/03 Heiser EU:C:2005:130, paragraph 55. See also Case C-494/06 P Commission v Italy and Wam EU:C:2009:272, paragraph 54 and the case-law cited and C-271/13 P Rousse Industry v Commission EU:C:2014:175, paragraph 44. Joined Cases C-71/09 P, C-73/09 P and C-76/09 P Comitato ‘Venezia vuole vivere’ and Others v Commission EU:C:2011:368, paragraph 136. See also Case C-156/98 Germany v Commission EU:C:2000:467, paragraph 30, and the case-law cited.

      (18)  The exceptions provided for in Article 107(2) TFEU 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.

      (19)  The exceptions provided for in Article 107(3) TFEU 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.

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

      (21)  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).

      (22)  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).

      (23)  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).


Avis juridique important

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31983D0452

83/452/EEC: Commission Decision of 5 September 1983 accepting undertakings given in connection with the anti-dumping proceeding concerning imports of certain outboard motors originating in Japan

Official Journal L 247 , 07/09/1983 P. 0018 - 0018

*****COMMISSION  DECISION  of 5 September 1983  accepting undertakings given in connection with the anti-dumping proceeding concerning imports of certain outboard motors originating in Japan  (83/452/EEC)  THE COMMISSION OF THE EUROPEAN  COMMUNITIES,  Having regard to the Treaty establishing the European Economic Community,  Having regard to Council Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the European Community (1), as amended by Regulation (EEC) No 1580/82 (2), and in particular Article 10 thereof,  After consultations within the Advisory Committee as provided for under the above Regulation,  Whereas:  A. Provisional action  (1) The Commission, by Regulation (EEC) No 1500/83 (3), imposed a provisional anti-dumping duty on imports of outboard motors up to and including 85 hp originating in Japan.  B. Undertakings  (2) Following the imposition of the provisional anti-dumping duty, undertakings were offered by Tohatsu Corporation, Suzuki Motor Company Ltd, Yamaha Motor Company Ltd and Marine Power Europe Inc., acting on behalf of Yamaha Motor Company Ltd pursuant to a power of attorney, concerning their exports of Mariner outboard motors to the Community.  (3) The effect of the said undertakings is very likely to increase export prices to the Community or, where appropriate, resale prices in the Community either to the level necessary to eliminate the dumping or to the level which the Commission, having taken into account, on the one hand, the selling prices necessary to provide an adequate return to Community producers and, on the other hand, the purchase prices of the Community importers and their costs and profit margins, considers necessary to eliminate injury.  (4) In these circumstances, the undertakings offered are considered acceptable.  (5) No objection to this course was raised in the Advisory Committee,  HAS DECIDED AS FOLLOWS:  Sole Article  The Commission hereby accepts the undertakings given by Tohatsu Corporation, Suzuki Motor Company Ltd, Yamaha Motor Company Ltd and Marine Power Europe Inc. in connection with the anti-dumping proceeding concerning outboard motors up to and including 85 hp, falling within Common Customs Tariff subheading ex 84.06 B, corresponding to NIMEXE codes 84.06-10 and ex 84.06-12 and originating in Japan.  Done at Brussels, 5 September 1983.  For the Commission  Étienne DAVIGNON  Vice-President  (1) OJ No L 339, 31. 12. 1979, p. 1.  (2) OJ No L 178, 22. 6. 1982, p. 9.  (3) OJ No L 152, 10. 6. 1983, p. 18.


DECISION NO. 52 OF 28 FEBRUARY 1964 CONCERNING THE SITUATION OF FRONTIER WORKERS EMPLOYED IN FRANCE BUT RESIDENT IN ITALY WITH RESPECT TO THEIR RIGHT TO FAMILY ALLOWANCES FOR THEIR CHILDREN RESIDENT IN FRANCE