title: EFTA Surveillance Authority Decision No 394/11/COL of 14 December 2011 amending, for the eighty-third time, the procedural and substantive rules in the field of state aid by introducing a new chapter on the application, from 1 January 2012 , of state aid rules to support measures in favour of banks in the context of the financial crisis

text:
               24.10.2013

               EN

               Official Journal of the European Union

               L 282/72

         EFTA SURVEILLANCE AUTHORITY DECISION
   No 394/11/COL
   of 14 December 2011
   amending, for the eighty-third time, the procedural and substantive rules in the field of state aid by introducing a new chapter on the application, from 1 January 2012, of state aid rules to support measures in favour of banks in the context of the financial crisis
   THE EFTA SURVEILLANCE AUTHORITY (“THE AUTHORITY”),
   Whereas:
   Under Article 5(2)(b) of the Surveillance and Court Agreement, the Authority shall issue notices or guidelines on matters dealt with in the EEA Agreement, if that Agreement or the Surveillance and Court Agreement expressly so provides or if the Authority considers it necessary,
   On 1 December 2011, the European Commission adopted a Communication on the application, from 1 January 2012, of State aid rules to support measures in favour of banks in the context of the financial crisis (1),
   This Communication is also of relevance for the European Economic Area,
   Uniform application of the EEA State aid rules is to be ensured throughout the European Economic Area in line with the objective of homogeneity established in Article 1 of the EEA Agreement,
   According to point II under the heading “GENERAL” on page 11 of Annex XV to the EEA Agreement, the Authority, after consultation with the Commission, is to adopt acts corresponding to those adopted by the European Commission,
   The Authority consulted the European Commission and the EFTA States by letters dated 2 December 2011 on the subject,
   HAS ADOPTED THIS DECISION:
   Article 1
   The State Aid Guidelines shall be amended by introducing a new chapter on the application, from 1 January 2012, of state aid rules to support measures in favour of banks in the context of the financial crisis.
   The new chapter is set out in the Annex to this Decision.
   Article 2
   Only the English language version of this decision is authentic.

      Done at Brussels, 14 December 2011.

            For the EFTA Surveillance Authority

         Oda Helen SLETNES

            President

         Sverrir Haukur GUNNLAUGSSON

            College Member

      (1)  OJ C 356, 6.12.2011, p. 7.

      ANNEX

         THE APPLICATION, FROM 1 JANUARY 2012, OF STATE AID RULES TO SUPPORT MEASURES IN FAVOUR OF BANKS IN THE CONTEXT OF THE FINANCIAL CRISIS

      1.   Introduction

                  (1)

                  Since the beginning of the global financial crisis in the autumn of 2008, the EFTA Surveillance Authority (“the Authority”) has issued four sets of Guidelines (1) which provided detailed guidance on the criteria for the compatibility of state support to financial institutions (2) with the requirements of Article 61(3)(b) of the Agreement on the European Economic Area (the “EEA Agreement”). The Chapters of the Guidelines in question are the application of state aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis (3) (“the Banking Guidelines”); the recapitalisation of financial institutions in the current financial crisis: limitation of aid to the minimum necessary and safeguards against undue distortions of competition (4) (“the Recapitalisation Guidelines”); the treatment of impaired assets in the EEA banking sector (5) (“the Impaired Assets Guidelines”) and the return to viability and the assessment of restructuring measures in the financial sector in the current crisis under the state aid rules (6) (“the Restructuring Guidelines”). Three of those four Guidelines, the Banking, Recapitalisation and Impaired Assets Guidelines, set out the prerequisites for the compatibility of the main types of assistance granted by EFTA States – guarantees on liabilities, recapitalisations and asset relief measures – while the Restructuring Guidelines detail the particular features that a restructuring plan (or a viability plan) has to display in the specific context of crisis-related state aid granted to banks on the basis of Article 61(3)(b) of the EEA Agreement.

                  (2)

                  On 2 March 2011, the Authority adopted a fifth set of Guidelines, on the application, from 1 January 2011, of state aid rules to support measures in favour of banks in the context of the financial crisis (7) (“the Prolongation Guidelines”). The Prolongation Guidelines extended the Restructuring Guidelines – the only one of the four Guidelines with a specified expiry date – on amended terms until 31 December 2011. The Authority also indicated in the Prolongation Guidelines that it considered that the requirements for state aid to be approved pursuant to Article 61(3)(b) of the EEA Agreement, which exceptionally allows for aid to remedy a serious disturbance in the economy of an EU Member State or an EFTA State, were still fulfilled and that the Banking, Recapitalisation and Impaired Assets Guidelines would remain in place in order to provide guidance on the criteria for the compatibility of crisis-related aid to banks on the basis of Article 61(3)(b) of the EEA Agreement.

                  (3)

                  The exacerbation of tensions in sovereign debt markets that has taken place in 2011 has put the banking sector in the EEA under increasing pressure, particularly in terms of access to term funding markets. The "banking package" agreed by the Heads of State or Government at their meeting of 26 October 2011 (8) aims to restore confidence in the banking sector by way of guarantees on medium-term funding and the creation of a temporary capital buffer amounting to a capital ratio of 9 % of the highest quality capital after accounting for market valuation of sovereign debt exposures. Despite those measures, the Authority considers that the requirements for state aid to be approved pursuant to Article 61(3)(b) will continue to be fulfilled beyond the end of 2011.

                  (4)

                  Therefore, the Banking, Recapitalisation and Impaired Assets Guidelines will remain in place beyond 31 December 2011. In the same vein, the temporal scope of the Restructuring Guidelines is extended beyond 31 December 2011 (9). The Authority will keep the situation in the financial markets under review and will take steps towards more permanent rules for State aid for rescue and restructuring of banks, based on Article 61(3)(b) of the EEA Agreement, as soon as market conditions permit.

                  (5)

                  To facilitate the implementation of the banking package and to take into account developments in the risk profile of banks since the start of the crisis, it is desirable to further clarify and update the rules in certain respects. These Guidelines set out the necessary amendments to the parameters for the compatibility of crisis-related state aid to banks as from 1 January 2012. In particular, these Guidelines:

                              (a)

                              supplement the Recapitalisation Guidelines, by providing more detailed guidance on ensuring adequate remuneration for capital instruments that do not bear a fixed return;

                              (b)

                              explain how the Authority will undertake the proportionate assessment of the long-term viability of banks in the context of the banking package; and

                              (c)

                              introduce a revised methodology for ensuring that the fees payable in return for guarantees on bank liabilities are sufficient to limit the aid involved to the minimum, with the aim of ensuring that the methodology takes into account the greater differentiation of bank credit default swap (CDS) spreads in recent times and impact of the CDS spreads on the EFTA State concerned.

            2.   Pricing and conditions for state recapitalisations

                  (6)

                  The Recapitalisation Guidelines provide general guidance on the pricing of capital injections. That guidance is geared mainly towards capital instruments bearing a fixed remuneration.

                  (7)

                  In view of the regulatory changes and the changing market environment, the Authority anticipates that State capital injections may in the future more commonly take the form of shares bearing a variable remuneration. Clarification of the rules on pricing of capital injections is desirable given that such shares are remunerated in the form of (uncertain) dividends and capital gains, making it difficult to assess directly ex ante the remuneration on such instruments.

                  (8)

                  The Authority will therefore assess the remuneration of such capital injections on the basis of the issue price of the shares. Capital injections should be subscribed at a sufficient discount to the share price (after adjustment for the "dilution effect" (10)) immediately prior to the announcement of the capital injection to give a reasonable assurance of an adequate remuneration for the State (11).

                  (9)

                  For listed banks, the benchmark share price should be the quoted market price of shares with equivalent rights to those attaching to the shares being issued. For non listed banks, there is no such market price and EFTA States should use an appropriate market-based valuation approach (including a peer group P/E approach or other generally accepted valuation methodologies). Shares should be subscribed at an appropriate discount to that market (or market-based) value.

                  (10)

                  If EFTA States subscribe for shares without voting rights, a higher discount may be required, the size of which should reflect the pricing differential between voting and non-voting shares in the prevailing market conditions.

                  (11)

                  Recapitalisation measures must contain appropriate incentives for banks to exit from state support as soon as possible. In relation to shares with variable remuneration, if exit incentives are designed in a way that limits the upside potential for the EFTA State, for example by issuing warrants to the incumbent shareholders to allow them to buy back the newly issued shares from the State at a price that implies a reasonable annual return for the State, a higher discount will be required to reflect the capped upside potential.

                  (12)

                  In all cases, the size of the discount must reflect the size of the capital injection in relation to the existing Core Tier 1 capital. A higher capital shortage in relation to existing capital is indicative of greater risk to the State, and therefore requires a higher discount.

                  (13)

                  Hybrid instruments should in principle contain an "alternative coupon satisfaction mechanism" whereby coupons which cannot be paid out in cash would be paid to the State in the form of newly issued shares.

                  (14)

                  The Authority will continue to require EFTA States to submit a restructuring plan (or an update of the existing restructuring plan) within six months of the date of the Authority’s decision authorising rescue aid for any bank that receives public support in the form of recapitalisation or impaired asset measures. Where a bank has been the subject of a previous rescue aid decision under the rules governing the compatibility of aid to banks with Article 61(3)(b) of the EEA Agreement, whether as part of the same restructuring operation or not, the Authority may require the submission of the restructuring plan within a period shorter than six months. The Authority will undertake a proportionate assessment of the long-term viability of banks, taking full account of elements indicating that banks can be viable in the long-term without the need for significant restructuring, in particular where the capital shortage is essentially linked to a confidence crisis on sovereign debt, the public capital injection is limited to the amount necessary to offset losses stemming from marking sovereign bonds of the Contracting Parties to the EEA Agreement to market in banks which are otherwise viable, and the analysis shows that the banks in question did not take excessive risk in acquiring sovereign debt.

            3.   Pricing and conditions for state guarantees

                  (15)

                  Banks may benefit from a state guarantee for the issuance of new debt instruments, whether secured or unsecured, with the exception of instruments that qualify as capital. Since pressure on the funding of banks is concentrated in the term funding markets, state guarantees should in general only cover debt with a maturity of between one and five years (seven years in the case of covered bonds).

                  (16)

                  Since the start of the crisis, the pricing of state guarantees has been linked to the median CDS spread of the beneficiary over the period from 1 January 2007 to 31 August 2008. That pricing was increased with effect from 1 July 2010 to better reflect the risk profile of individual beneficiaries (12).

                  (17)

                  To take into account the greater differentiation by risk of bank CDS spreads in recent times, that pricing formula should be updated to refer to median CDS spreads over a three-year period ending one month before the grant of guarantees. Since increases in CDS spreads in recent years are partially due to influences that are not specific to individual banks, in particular the growing tensions in sovereign debt markets and an overall increase in the perception of risk in the banking sector, that formula should isolate the intrinsic risk of individual banks from changes in CDS spreads of EEA States and of the market as a whole. That formula should also reflect the fact that guarantees on covered bonds expose the guarantor to substantially lower risk than guarantees on unsecured debt.

                  (18)

                  In line with the principles mentioned in paragraph 17, the revised pricing formula set out in the Annex establishes the minimum guarantee fees that should apply where state guarantees are granted on a national basis, without any pooling of guarantees among EFTA States. The Authority will apply that formula to all state guarantees on bank liabilities with a maturity of one year or more issued on or after 1 January 2012.

                  (19)

                  Where guarantees cover liabilities that are not denominated in the domestic currency of the guarantor, an additional fee should apply to cover the foreign-exchange risk taken by the guarantor.

                  (20)

                  Where it is necessary for guarantees to cover debt with a maturity of less than one year, the Authority will continue to apply the existing pricing formula, which is set out for reference in the Appendix. The Authority will not authorise guarantees covering debt with a maturity of less than three months except in exceptional cases where such guarantees are necessary for financial stability. In such cases, the Authority will assess the appropriate remuneration taking into account the need for appropriate incentives to exit from state support as soon as possible.

                  (21)

                  If EFTA States decide to establish pooling arrangements for guarantees on bank liabilities, the Authority will review its guidance accordingly, to ensure in particular that weight is given to CDS spreads of EFTA States only to the extent that they remain relevant.

                  (22)

                  To enable the Authority to assess the application in practice of the revised pricing formula, EFTA States should indicate, when notifying new or prolonged guarantee schemes, an indicative fee for each bank eligible to benefit from those guarantees, based on an application of the formula using recent market data. EFTA States should also communicate to the Authority, within three months following each issue of guaranteed bonds, the actual guarantee fee charged in relation to each issue of guaranteed bonds.

         (1)  Guidelines on the application and interpretation of Articles 61 and 62 of the EEA Agreement and Article 1 of Protocol 3 to the Surveillance and Court Agreement (“the State Aid Guidelines”), adopted and issued by the Authority on 19.1.1994, published in the Official Journal of the European Union (hereinafter referred to as OJ) L 231 of 03.09.1994, p.1 and EEA Supplement No 32, 03.09.1994, p.1. The Guidelines were last amended on 02.03.2011. The updated version of the State Aid Guidelines is published on the Authority’s website: http://www.eftasurv.int/state-aid/legal-framework/state-aid-guidelines/

         (2)  For the convenience of the reader, financial institutions are referred to simply as ‘banks’ in this document.

         (3)  Available at http://www.eftasurv.int/?1=1&showLinkID=16604&1=1

         (4)  Available at http://www.eftasurv.int/?1=1&showLinkID=16015&1=1

         (5)  Available at http://www.eftasurv.int/?1=1&showLinkID=16585&1=1

         (6)  Available at http://www.eftasurv.int/media/state-aid-guidelines/Part-VIII—Return-to-viability-and-the-assessment-of-restructuring-measures-in-the-financial-sector.pdf

         (7)  Available at http://www.eftasurv.int/media/state-aid-guidelines/Part-VIII—Financial-Crisis-Guidelines-2011.pdf

         (8)  Statement of EU Heads of State or Government of 26.10.2011, (http://www.consilium.europa-.eu/uedocs/cms_Data/docs/pressdata/en/ec/125621.pdf).

         (9)  In line with the Authority’s previous practice, existing or new bank support schemes (irrespective of the support instruments they contain: guarantee, recapitalisation, liquidity, asset relief, other) will only be prolonged or approved for a duration of six months to allow for further adjustments, if necessary, in mid-2012.

         (10)  The "dilution effect" can be quantified using generally accepted market techniques (for instance, the theoretical ex-rights price (TERP)).

         (11)  If EFTA States underwrite the issue of shares, an adequate underwriting fee should be payable by the issuing institution.

         (12)  See Directorate-General for Competition Staff Working Document of 30.4.2010 on the application of State aid rules to government guarantee schemes covering bank debt to be issued after 30.6.2010 (http://ec.europa.eu/competition/state_aid/studies_reports/phase_out_bank_guarantees.pdf).

         Appendix

            Guarantees covering debt with a maturity of one year or more

         The guarantee fee should as a minimum be the sum of:

                     1)

                     a basic fee of 40 basis points (bp); and

                     2)

                     a risk-based fee equal to the product of 40 basis points and a risk metric composed of (i) one-half of the ratio of the beneficiary's median five-year senior CDS spread over the three years ending one month before the date of issue of the guaranteed bond to the median level of the iTraxx Europe Senior Financials five-year index over the same three-year period, plus (ii) one-half of the ratio of the median five-year senior CDS spread of all EEA States to the median five-year senior CDS spread of the EFTA State granting the guarantee over the same three-year period.

               The formula for the guarantee fee can be written as:

         where A is the beneficiary's median five-year senior CDS spread, B is the median iTraxx Europe Senior Financials five-year index, C is the median five-year senior CDS spread of all EEA States and D is the median five-year senior CDS spread of the EFTA State granting the guarantee.
         The medians are calculated over the three years ending one month before the date of issue of the guaranteed bond.
         In the case of guarantees for covered bonds, the guarantee fee may take into account only one-half of the risk-based fee calculated in accordance with point (2) above.

            Banks without representative CDS data

         For banks without CDS data, or without representative CDS data, but with a credit rating, an equivalent CDS spread should be derived from the median value of five-year CDS spreads during the same sample period for the rating category of the bank concerned, based on a representative sample of large banks in the EEA States. The supervisory authority will assess whether the CDS data of a bank are representative.
         For banks without CDS data and without a credit rating, an equivalent CDS spread should be derived from the median value of five-year CDS spreads during the same sample period for the lowest rating category (1), based on a representative sample of large banks in the EEA States. The calculated CDS spread, for this category of banks, may be adapted on the basis of a supervisory assessment.
         The Authority will determine the representative samples of large banks in the EEA States.

            Guarantees covering debt with a maturity of less than one year

         As CDS spreads may not provide an adequate measure of credit risk for debt with a maturity of less than one year, the guarantee fee for such debt should as a minimum be the sum of:

                     1)

                     a basic fee of 50 basis points; and

                     2)

                     a risk-based fee equal to 20 basis points for banks with a rating of A+ or A, 30 basis points for banks with a rating of A–, or 40 basis points for banks rated below A– or without a rating.

            (1)  The lowest rating category to be considered is A, as there is not sufficient data available for the rating category BBB.


Avis juridique important

|

41997D0509

97/509/ECSC: Decision of the Representatives of the Governments of the Member States, meeting within the Council of 31 July 1997 on certain measures applicable with regard to the Russian Federation concerning trade in certain steel products covered by the ECSC Treaty

Official Journal L 214 , 06/08/1997 P. 0031 - 0034

DECISION OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES, MEETING WITHIN THE COUNCIL of 31 July 1997 on certain measures applicable with regard to the Russian Federation concerning trade in certain steel products covered by the ECSC Treaty (97/509/ECSC) THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES OF THE EUROPEAN COAL AND STEEL COMMUNITY, MEETING WITHIN THE COUNCIL,In agreement with the Commission,HAVE DECIDED AS FOLLOWS:Article 1 1. Pending the entry into force of the new ECSC steel agreement with the Russian Federation, and in order to avoid disrupting the trade in the products which it covers, following the expiry on 30 June 1997 of the extended 1995-96 Agreement, imports into all the Member States of steel products covered by the ECSC Treaty referred to in Annex I originating in the Russian Federation shall be subjected to import authorization until 30 September 1997.2. Authorizations shall be issued only within the limits defined in Article 2. Steel products originating in the Russian Federation covered by an import authorization issued before the date of entry into force of this Decision, and which were already sent to the Community before that date, shall be admitted without the applicable authorization for the products covered by autonomous quota.Article 2 Quantities of authorized imports shall be determined, for each product group and for the whole of the Community, according to the quotas indicated in Annex II.Article 3 1. For the purpose of applying Article 2, the competent authorities of the Member States listed in Annex III, before issuing import authorizations, shall notify the Commission of the amounts of the requests for import authorizations, supported by original export licences, which they have received. By return, the Commission shall notify its confirmation that the requested amount(s) of quantities are available for importation in the chronological order in which the notifications of the Member States have been received ('first come, first served` basis).2. The requests included in the notifications to the Commission shall be valid if they establish clearly in each case the exporting country, the product group concerned, the amounts to be imported, the number of the export licence, the quota year and the Member State in which the products are intended to be put into free circulation.3. The notifications referred to in paragraphs 1 and 2 shall be communicated electronically within the integrated network set up for this purpose, unless for imperative technical reasons it is necessary to use other means of communication temporarily.4. Member States issuing export licences shall inform the Commission immediately. The Commission shall keep the Member States regularly informed of the extent to which the quantities have been used up.5. The Member States and the Commission shall confer in order to ensure that these quantities are not exceeded.Article 4 Should an agreement between the European Coal and Steel Community and the Russian Federation on trade in certain steel products be concluded and enter into force during the period of application of this Decision, the provisions of that agreement together with any measures taken to give effect to it, shall, as from the date on which the agreement enters into force, replace the provisions of this Decision.Article 5 This Decision shall enter into force on the day of its publication in the Official Journal of the European Communities.In order to maintain continuity in the management of the quotas for 1997, this Decision shall apply from 1 August 1997.Done at Brussels, 31 July 1997.The PresidentJ. POOSANNEX I SA. Flat-rolled products SA1. Coils7208 10 007208 25 007208 26 007208 27 007208 36 007208 37 907208 38 907208 39 907211 14 107211 19 207219 11 007219 12 107219 12 907219 13 107219 13 907219 14 107219 14 907225 19 107225 20 207225 30 00SA1.a. Hot-rolled coils for re-rolling7208 37 107208 38 107208 39 10SA2. Heavy Plate7208 40 107208 51 107208 51 307208 51 507208 51 917208 51 997208 52 107208 52 917208 52 997208 53 107211 13 00SA3. Other flat-rolled products7208 40 907208 53 907208 54 107208 54 907208 90 107209 15 007209 16 107209 16 907209 17 107209 17 907209 18 107209 18 917209 18 997209 25 007209 26 107209 26 907209 27 107209 27 907209 28 107209 28 907209 90 107210 11 107210 12 117210 12 197210 20 107210 30 107210 41 107210 49 107210 50 107210 61 107210 69 107210 70 317210 70 397210 90 317210 90 337210 90 387211 14 907211 19 907211 23 107211 23 517211 29 207211 90 117212 10 107212 10 917212 20 117212 30 117212 40 107212 40 917212 50 317212 50 517212 60 117212 60 917219 21 107219 21 907219 22 107219 22 907219 23 007219 24 007219 31 007219 32 107219 32 907219 33 107219 33 907219 34 107219 34 907219 35 107219 35 907225 40 80SB. Long products SB1. Beams7207 19 317207 20 717216 31 117216 31 197216 31 917216 31 997216 32 117216 32 197216 32 917216 32 997216 33 107216 33 90SB2. Wire rod7213 10 007213 20 007213 91 107213 91 207213 91 417213 91 497213 91 707213 91 907213 99 107213 99 907221 00 107221 00 907227 10 007227 20 007227 90 107227 90 507227 90 95SB3. Other long products7207 19 117207 19 147207 19 167207 20 517207 20 557207 20 577214 20 007214 30 007214 91 107214 91 907214 99 107214 99 317214 99 397214 99 507214 99 617214 99 697214 99 807214 99 907215 90 107216 10 007216 21 007216 22 007216 40 107216 40 907216 50 107216 50 917216 50 997216 99 107218 99 207222 11 117222 11 197222 11 217222 11 297222 11 917222 11 997222 19 107222 19 907222 30 107222 40 107222 40 307224 90 317224 90 397228 10 107228 10 307228 20 117228 20 197228 20 307228 30 207228 30 417228 30 497228 30 617228 30 697228 30 707228 30 897228 60 107228 70 107228 70 317228 80 107228 80 907301 10 00ANNEX II QUANTITATIVE LIMITS >TABLE>ANNEX III LISTE OVER KOMPETENTE NATIONALE MYNDIGHEDER LISTE DER ZUSTÄNDIGEN BEHÖRDEN DER MITGLIEDSTAATEN ÊÁÔÁËÏÃÏÓ ÔÙÍ ÁÑÌÏÄÉÙÍ ÅÈÍÉÊÙÍ ÁÑ×ÙÍ LISTA DE LAS AUTORIDADES NACIONALES COMPETENTES LISTE DES AUTORITÉS NATIONALES COMPÉTENTES ELENCO DELLE COMPETENTI AUTORITÀ NAZIONALI LIJST VAN BEVOEGDE NATIONALE INSTANTIES LISTA DAS AUTORIDADES NACIONAIS COMPETENTES LUETTELO TOIMIVALTAISISTA KANSALLISISTA VIRANOMAISISTA LISTA ÖVER BEHÖRIGA NATIONELLA MYNDIGHETER LIST OF THE COMPETENT NATIONAL AUTHORITIES BELGIQUE/BELGIËAdministration des relations économiquesQuatrième division: Mise en oeuvre des politiques commerciales internationales- Service 'Licences`Rue Général Leman 60B-1040 BruxellesTélécopieur: (32 2) 230 83 22Bestuur van de Economische BetrekkingenVierde Afdeling: Toepassing van het Internationale Handelsbeleid - Dienst VergunningenGeneraal Lemanstraat 60B-1040 BrusselFax: (32-2) 230 83 22DANMARKErhvervsfremme StyrelsenSøndergade 25DK-8600 SilkeborgFax: (45) 87 20 40 77DEUTSCHLANDBundesamt für Wirtschaft, Dienst 01Postfach 51 71D-65762 Eschborn 1Fax: (49) 6196 40 42 12ÅËËÁÄÁÕðïõñãåßï ÅèíéêÞò ÏéêïíïìßáòÃåíéêÞ Ãñáììáôåßá ÄÏÓÄéåýèõíóç Äéáäéêáóéþí Åîùôåñéêïý ÅìðïñßïõÊïñíÜñïõ 1GR-105 63 ÁèÞíáÖáî: (301) 328 6029/328 6059/328 6039ESPAÑAMinisterio de Economía y HaciendaDirección General de Comercio ExteriorPaseo de la Castellana 162E-28046 MadridFax: (34 1) 563 18 23/349 38 31FRANCESetice8 Rue de la Tour des DamesF-75436 Paris Cedex 09Télécopieur: (33 1) 44 63 26 59IRELANDLicensing UnitDepartment of Tourism and TradeKildare StreetIRL-Dublin 2Fax: (353 1) 676 61 54ITALIAMinistero del Commercio con l'EsteroDirezione generale per la politica commerciale e per la gestione del regime degli scambiViale America 341, I-00144 RomaTelefax: (39 6) 59 93 22 35-59 93 26 36LUXEMBOURGMinistère des affaires étrangèresOffice des licencesBoîte postale 113L-2011 LuxembourgTélécopieur: (352) 46 61 38NEDERLANDCentrale Dienst voor In- en UitvoerPostbus 30003Engelse Kamp 29700 RD GroningenNederlandFax: (31-50) 526 06 98ÖSTERREICHBundesministerium für wirtschaftliche AngelegenheitenAußenwirtschaftsadministrationLandstrasser Hauptstraße 55-57A-1030 WienFax: (43-1) 715 83 47PORTUGALDirecção-Geral do Comércio ExternoAvenida da República, 79P-1000 LisboaTelefax: (351-1) 793 22 10SUOMITullihallitusPL 512FIN-00101 HelsinkiTelekopio: (358 9) 614 2852SVERIGEKommerskollegiumBox 6803S-113 86 StockholmFax: (46 8) 30 67 59UNITED KINGDOMDepartment of Trade and IndustryImport Licensing BranchQueensway House, West PrecinctBillingham TS23 2NFClevelandFax: (44) 1642 53 35 57


title: 2013/610/EU: Decision of the European Parliament of 17 April 2013 on discharge in respect of the implementation of the budget of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2011

text:
               16.11.2013

               EN

               Official Journal of the European Union

               L 308/324

      DECISION OF THE EUROPEAN PARLIAMENT

   of 17 April 2013
   on discharge in respect of the implementation of the budget of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2011
   (2013/610/EU)
   THE EUROPEAN PARLIAMENT,

               —

               having regard to the final annual accounts of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2011,

               —

               having regard to the Court of Auditors’ report on the annual accounts of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States for the financial year 2011, together with the Agency’s replies (1),

               —

               having regard to the Council’s recommendation of 12 February 2013 (05753/2013 – C7-0041/2013),

               —

               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 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 (3), and in particular Article 208 thereof,

               —

               having regard to Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (4), and in particular Article 30 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 (5), 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 Civil Liberties, Justice and Home Affairs (A7-0079/2013),

               1.

               Grants the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union discharge in respect of the implementation of the Agency’s budget for the financial year 2011;

               2.

               Sets out its observations in the resolution below;

               3.

               Instructs its President to forward this Decision and the resolution that forms an integral part of it to the Executive Director of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, the Council, the Commission and the Court of Auditors, and to arrange for their publication in the Official Journal of the European Union (L series).

            The President

         Martin SCHULZ

            The Secretary-General

         Klaus WELLE

      (1)  OJ C 388, 15.12.2012, p. 202.

      (2)  OJ L 248, 16.9.2002, p. 1.

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

      (4)  OJ L 349, 25.11.2004, p. 1.

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

         RESOLUTION OF THE EUROPEAN PARLIAMENT

      of 17 April 2013
      with observations forming an integral part of its Decision on discharge in respect of the implementation of the budget of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2011
      THE EUROPEAN PARLIAMENT,

                  —

                  having regard to the final annual accounts of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union for the financial year 2011,

                  —

                  having regard to the Court of Auditors’ report on the annual accounts of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States for the financial year 2011, together with the Agency’s replies (1),

                  —

                  having regard to the Council’s recommendation of 12 February 2013 (05753/2013 – C7-0041/2013),

                  —

                  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 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 (3), and in particular Article 208 thereof,

                  —

                  having regard to Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (4), and in particular Article 30 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 (5), 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 Civil Liberties, Justice and Home Affairs (A7-0079/2013),

                  A.

                  whereas the Court of Auditors stated that it has obtained reasonable assurances that the annual accounts of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’) for the financial year 2011 are reliable and that the underlying transactions are legal and regular,

                  B.

                  whereas on 10 May 2012, Parliament granted the Executive Director of the Agency discharge for the implementation of the Agency’s budget for the financial year 2010 (6) and in its resolution accompanying the discharge decision, inter alia:

                              —

                              reiterated that the practice of carryovers of appropriations should be strongly curtailed and should not hamper sound financial management practices and requested that the Agency follow the principle of annuality in the future,

                              —

                              called on the Agency to carry out ex-post controls of issued grants in the form of on-the-spot visits,

                  C.

                  whereas the Agency’s overall budget for the year 2011 was EUR 118 200 000, compared to EUR 93 200 000 in the 2010 financial year; whereas the initial contribution of the Union to the Agency’s budget for 2011 was EUR 111 000 000, compared to EUR 89 100 000 in 2010,

         Budgetary and financial management

                  1.

                  Acknowledges that the Agency’s budget was subject to three amending budgets, the purposes of which were threefold:

                              —

                              to introduce the budget item ‘Eurosur’ under Title III (Operational Expenditure),

                              —

                              to increase the Agency’s budget by EUR 12 700 000 as part of the emergency response package for developments in Northern Africa,

                              —

                              to include a package of EUR 31 800 000 in commitment appropriations for the Emergency Response Package in the Mediterranean;

                  2.

                  Observes that in terms of paid appropriations, the Agency’s execution rate stands at 96 % under Title I (Staff Expenditure), 74 % under Title II (Administrative Expenditure) and 58 % under Title III; calls on the Agency to implement specific measures to improve its budgeting process and execution rate of payment in the case of administrative and operational expenditure;

                  3.

                  Is deeply concerned that 33 % of the Agency’s 2011 budget (EUR 38,7 million) was carried over to 2012; notes that carryovers related to Title III ‘Operational Expenditures’ amounted to EUR 36 million (41 %); observes that as in 2010, the level of carryovers is excessive and at odds with the budgetary principle of annuality;

                  4.

                  Deplores that within the total amount carried over, the Agency carried over global commitments of EUR 5,1 million; observes that the Agency’s Financial Regulation does not provide a clear basis for such a carryover; is aware that funding received at the end of the financial year may result in higher carryovers;

         Follow-up of the discharge 2010 recommendations

                  5.

                  Notes that the Agency adopted and implemented ex-post control strategy in 2012 and carried out three on-the-spot visits covering 9 % of the EUR 73 million grant payments made in 2011; welcomes the fact that the error rate was found to be below 1 % and that six on-the-spot visits are planned in 2013;

                  6.

                  Notes the Agency’s efforts and the persistent difficulties it faces in the process of budgetary implementation; notes the Agency’s explanations stating that difficulties have been caused, inter alia, by external factors such as sudden developments at external borders; urges the Agency to continue its efforts in this area;

         Supervisory and control systems

                  7.

                  Is aware that despite performing reasonable checks, the Agency did not usually request supporting documentation that would address the risk of ineligible expenditure of Agency-financed grants for joint operations carried out by Member States and Schengen Associated Countries; welcomes the fact that the Agency adopted policies aimed at strengthening ex ante controls, by systematically including the request for supporting documents;

                  8.

                  Is surprised to learn that as in 2010, the Agency’s accounting system shall be validated by its Accounting Officer;

                  9.

                  Regrets that internal control weaknesses as regards the management of fixed assets were identified; regrets that there is no procedure related to the disposal of fixed assets and the physical inventory is incomplete;

                  10.

                  Refers, in respect of the other observations accompanying its Decision on discharge, which are of a horizontal nature, to its resolution of 17 April 2013 (7) on the performance, financial management and control of the agencies.

         (1)  OJ C 388, 15.12.2012, p. 202.

         (2)  OJ L 248, 16.9.2002, p. 1.

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

         (4)  OJ L 349, 25.11.2004, p. 1.

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

         (6)  OJ L 286, 17.10.2012, p. 288.

         (7)  Texts adopted, P7_TA(2013)0134. (See page 374 of this Official Journal).


Avis juridique important

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31998D0196

Council Decision of 27 February 1998 repealing Common Position 97/625/CFSP, defined by the Council on the basis of Article J.2 of the Treaty on European Union, on restrictive measures to be taken against persons in Bosnia and Herzegovina acting against the peace agreements

Official Journal L 075 , 12/03/1998 P. 0001 - 0001

COUNCIL DECISION of 27 February 1998 repealing Common Position 97/625/CFSP, defined by the Council on the basis of Article J.2 of the Treaty on European Union, on restrictive measures to be taken against persons in Bosnia and Herzegovina acting against the peace agreements (98/196/CFSP)THE COUNCIL OF THE EUROPEAN UNION,Having regard to the Treaty on European Union and, in particular, Article J.2 thereof,Whereas by Common Position 97/625/CFSP (1) the Council, having taken account of the recommendations of the High Representative, decided on 15 September 1997 that the persons listed in the Annex thereto will not be permitted entry to the territories of the Member States;Whereas the Council, on the basis of a recommendation from the High Representative, considers that the ban on all the said persons travelling to the territories of the Member States should be lifted;Whereas the terms of Common Position 97/625/CFSP may be reinstated at any time, notably in the light of new recommendations from the High Representative,HAS DECIDED AS FOLLOWS:Article 1Common Position 97/625/CFSP shall be repealed.Article 2The Member States shall take all measures necessary to give effect to Article 1 as from the date of the adoption of this Decision.Article 3This Decision shall be published in the Official Journal.Done at Brussels, 27 February 1998.For the CouncilThe PresidentG. BROWN(1) OJ L 259, 22.9.1997, p. 1.


title: 2011/602/EU: Decision of the European Parliament of 10 May 2011 on discharge in respect of the implementation of the budget of the European Union Agency for Fundamental Rights for the financial year 2009

text:
               27.9.2011

               EN

               Official Journal of the European Union

               L 250/220

         DECISION OF THE EUROPEAN PARLIAMENT
   of 10 May 2011
   on discharge in respect of the implementation of the budget of the European Union Agency for Fundamental Rights for the financial year 2009
   (2011/602/EU)
   THE EUROPEAN PARLIAMENT,
   having regard to the final annual accounts of the European Union Agency for Fundamental Rights for the financial year 2009,
   having regard to the Court of Auditors’ report on the annual accounts of the European Fundamental Rights Agency for the financial year 2009, together with the Agency’s replies (1),
   having regard to the Council’s recommendation of 15 February 2011 (05892/2011 — C7-0052/2011),
   having regard to Article 276 of the EC Treaty and 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 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (3), and in particular Article 21 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 Civil Liberties, Justice and Home Affairs (A7-0130/2011),

               1.

               Grants the Director of the European Union Agency for Fundamental Rights discharge in respect of the implementation of the Agency’s budget for the financial year 2009;

               2.

               Sets out its observations in the resolution below;

               3.

               Instructs its President to forward this Decision and the resolution that forms an integral part of it to the Director of the European Union Agency for Fundamental Rights, the Council, the Commission and the Court of Auditors, and to arrange for their publication in the Official Journal of the European Union (L series).

            The President

         Jerzy BUZEK

            The Secretary-General

         Klaus WELLE

      (1)  OJ C 338, 14.12.2010, p. 10.

      (2)  OJ L 248, 16.9.2002, p. 1.

      (3)  OJ L 53, 22.2.2007, p. 1.

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

               27.9.2011

               EN

               Official Journal of the European Union

               L 250/221

         RESOLUTION OF THE EUROPEAN PARLIAMENT
   of 10 May 2011
   with observations forming an integral part of its Decision on discharge in respect of the implementation of the budget of the European Union Agency for Fundamental Rights for the financial year 2009
   THE EUROPEAN PARLIAMENT,
   having regard to the final annual accounts of the European Union Agency for Fundamental Rights for the financial year 2009,
   having regard to the Court of Auditors’ report on the annual accounts of the European Fundamental Rights Agency for the financial year 2009, together with the Agency’s replies (1),
   having regard to the Council’s recommendation of 15 February 2011 (05892/2011 — C7-0052/2011),
   having regard to Article 276 of the EC Treaty and 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 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (3), and in particular Article 21 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 Civil Liberties, Justice and Home Affairs (A7-0130/2011),

               A.

               whereas the Court of Auditors stated that it has obtained reasonable assurances that the annual accounts for the financial year 2009 are reliable and that the underlying transactions are legal and regular,

               B.

               whereas on 5 May 2010 Parliament granted the Director of the European Union Agency for Fundamental Rights discharge for implementation of the Agency’s budget for the financial year 2008 (5), and in its resolution accompanying the discharge decision, inter alia:

                           —

                           encouraged the Agency to set SMART objectives and RACER indicators in its programming so as to improve assessment of its achievements,

                           —

                           congratulated the Agency on having started in mid-2009 to implement Activity Based Budget software that will provide clear indicators on the financial and human resources allocated,

                           —

                           noted that, having opened its investigation concerning the Agency in 2008, the European Anti-Fraud Office (OLAF) closed it in 2009 with no further action,

               C.

               whereas the budget of the Agency for 2009 was EUR 17 000 000, which is an increase of 13,3 % on the financial year 2008,

               1.

               Notes that the discharge for the implementation of the budget for the Agency should be further based on its performance throughout the year;

      Budgetary and financial management

               2.

               Urges the Agency to improve its budgetary and recruitment planning in order to redress the lack of consistency between its budgetary and staff forecasting; acknowledges, in fact, the Court of Auditors’ observation that the Agency increased its operating budget by 38 %, transferring EUR 1 900 000 from Title I (Staff) to Title III (Operational activities) as a result of delays in recruitment and in order to finance operational activities not envisaged in the initial budget; takes note, nevertheless, of the external factors (such as appointment of a new Director and finalisation of an important framework contract launched by the Commission);

               3.

               Calls on the Agency to make progress in ensuring, as far as possible, a realistic evaluation of tenders; notes, in fact, that the Court of Auditors reported on this issue in respect of the award of three framework contracts of a total amount of EUR 2 575 000; stresses, in particular, that in these three cases the financial offers differed considerably in both unit prices and the tenderers’ estimates of the number of man-days necessary for the implementation of the same scenario;

               4.

               Welcomes the Agency’s resolution to improve the programming and monitoring of its contracts in order to avoid, in the future, the deficiencies reported by the Court of Auditors; calls, accordingly, on the Agency to inform the discharge authority of the action taken in this respect;

      Internal audit

               5.

               Acknowledges that out of the nine recommendations of the Internal Audit Service (IAS), following an audit on financial management, four are still to be implemented by the Agency; notes, in particular, that these concern financing decisions, information needs for reporting and monitoring purposes, work programmes showing all available resources of the budget, and financial procedures and checklists; urges the Agency to take measures to implement these recommendations;

               6.

               Refers, in respect of the other observations accompanying its Decision on discharge, which are of a horizontal nature, to its resolution of 10 May 2011 (6) on the performance, financial management and control of the agencies.

      (1)  OJ C 338, 14.12.2010, p. 10.

      (2)  OJ L 248, 16.9.2002, p. 1.

      (3)  OJ L 53, 22.2.2007, p. 1.

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

      (5)  OJ L 252, 25.9.2010, p. 207.

      (6)  Texts adopted, P7_TA(2011)0163 (see page 269 of this Official Journal).


Avis juridique important

|

31976D0228

76/228/ECSC: Council Decision of 16 February 1976 on the granting of daily subsistence allowances and refunds of travel expenses to Members of the Consultative Committee of the European Coal and Steel Community

Official Journal L 044 , 20/02/1976 P. 0033 - 0034 Finnish special edition: Chapter 1 Volume 1 P. 0118  Spanish special edition: Chapter 01 Volume 6 P. 0053  Swedish special edition: Chapter 1 Volume 1 P. 0118  Portuguese special edition Chapter 01 Volume 6 P. 0053

COUNCIL DECISION  of 16 February 1976  on the granting of daily subsistence allowances and refunds of travel expenses to Members of the Consultative Committee of the European Coal and Steel Community  (76/228/ECSC)  THE COUNCIL OF THE EUROPEAN COMMUNITIES,  Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 18 thereof,  Having regard to the Treaty establishing a single Council and a single Commission of the European Communities, and in particular Article 6 thereof,  Whereas, the rates for the daily subsistence allowance payable to Members of the Consultative Committee of the European Coal and Steel Community should be fixed, together with the basis on which that allowance and the refunds of their travel expenses are to be paid,  HAS DECIDED AS FOLLOWS:    Article 1 Members of the Consultative Committee of the European Coal and Steel Community shall be entitled to a subsistence allowance for each day of attendance at meetings and for each day of travel and to a refund of travel expenses in accordance with the following provisions.   Article 2 1. The subsistence allowance shall be Bfrs 2 500 for each day of attendance at meetings and for each day of travel.  2. The subsistence allowance for each day of travel shall be paid as a fixed amount for return journeys calculated on the basis of the distance by rail between the place of departure and the venue of the meeting as follows:    - one day for distances greater than 100 km and not exceeding 200 km;       - one and a half days for distances greater than 200 km and not exceeding 500 km;       - two days for distances greater than 500 km and not exceeding 800 km;       - two days for distances greater than 800 km ; however, the calculation shall be based on the actual duration of the journey, provided the Member concerned can show that this has taken more than two days.         3. For the purposes of this Decision, "place of departure" means the domicile of the Member concerned ; however, should he actually depart from a place nearer to the venue of the meeting, that place will be taken as the basis for the calculation of his travel expenses.   Article 3 1. Rail travel expenses shall be refunded on the following basis:    - first-class rail fare between the place of departure and the venue of the meeting. Tickets need not be produced;       - supplements for sleeping accommodation on production of ticket;       - cost of seat reservations and transport of necessary luggage, and supplements for special fast trains, on production of the relevant tickets.         2. Boat travel expenses shall be refunded on production of the relevant tickets.   3. The travel expenses of a Member travelling by car shall be refunded on the basis of the first-class rail fare. Where two or more Members use the same car, only the Member in charge of the vehicle shall be entitled to the above refund plus 20 % for each Member accompanying him, whom he shall indicate by name.  Vehicle embarkation and ferry charges shall be refunded to the Member in charge of the vehicle, on production of the relevant tickets.  4. Air travel expenses, including the cost of reservation and embarkation, shall be refunded on production of the relevant tickets.  5. The cost of transport between the place of departure or venue of the meeting and the station or airport shall be refunded on the basis of the first-class public transport fare.   Article 4 The Council Decision of 15 October 1968 on the allowances of Members of the Consultative Committee of the European Coal and Steel Community and of persons required, on the basis of special rules, to take part in the work of that Committee, as last amended by Decision No 74/319/ECSC (1), is hereby repealed.   Article 5 This Decision shall take effect on 1 January 1976.     Done at Brussels, 16 February 1976.  For the Council  The President  R. VOUEL  (1)OJ No L 180, 3.7.1974, p. 31.


title: 2014/279/EU: Council Decision of 12 May 2014 on the conclusion of the Framework Agreement between the European Union and its Member States, on the one part, and the Republic of Korea, on the other part, as regards matters related to readmission

text:
               16.5.2014

               EN

               Official Journal of the European Union

               L 145/3

         COUNCIL DECISION
   of 12 May 2014
   on the conclusion of the Framework Agreement between the European Union and its Member States, on the one part, and the Republic of Korea, on the other part, as regards matters related to readmission

      (2014/279/EU)

   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union, and in particular Article 79(3), in conjunction with Article 218(6)(a) thereof,
   Having regard to the proposal from the European Commission,
   Having regard to the consent of the European Parliament (1),
   Whereas:

               (1)

               In accordance with the Council Decision 2013/40/EU (2), the Framework Agreement between the European Union and its Member States, on the one part, and the Republic of Korea, on the other part (the ‘Agreement’), was signed on 10 May 2010, subject to its conclusion at a later date.

               (2)

               In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of Freedom, Security and Justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Decision and are not bound by it or subject to its application.

               (3)

               In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.

               (4)

               The provisions of the Agreement, other than Article 33(2), related to readmission, will be the subject of a separate Decision (3) adopted in parallel to this Decision.

               (5)

               The Agreement should be approved on behalf of the Union,

         HAS ADOPTED THIS DECISION:
   Article 1
   The Framework Agreement between the European Union and its Member States, on the one part, and the Republic of Korea, on the other part, as regards Article 33(2) thereof, is hereby approved on behalf of the Union (4).
   Article 2
   The High Representative of the Union for Foreign Affairs and Security Policy shall chair the Joint Committee provided for in Article 44 of the Agreement. The Union or, as the case may be, the Union and the Member States, shall be represented in the Joint Committee depending on the subject matter.
   Article 3
   The President of the Council shall designate the person(s) empowered to proceed, on behalf of the Union, to the notification provided for in Article 49(1) of the Agreement (5).
   Article 4
   This Decision shall enter into force on the day of its adoption.

      Done at Brussels, 12 May 2014.

            For the Council

            The President

         C. ASHTON

      (1)  Consent given on 16 April 2014 (not yet published in the Official Journal).

      (2)  Council Decision 2013/40/EU of 10 May 2010 on the signing, on behalf of the European Union, and provisional application of the Framework Agreement between the European Union and its Member States, on the one part, and the Republic of Korea, on the other part (OJ L 20, 23.1.2013, p. 1).

      (3)  Council Decision 2014/278/EU of 12 May 2014 on the conclusion of the Framework Agreement between the European Union and its Member States, on the one part, and the Republic of Korea, on the other part, with the exception of matters related to readmission (see page 1 of this Official Journal).

      (4)  The Agreement has been published in OJ L 20, 23.1.2013, p. 2, together with the decision on signature.

      (5)  The date of entry into force of the Agreement will be published in the Official Journal of the European Union by the General Secretariat of the Council.


title: 2013/388/EU: Decision of the European Central Bank of 5 July 2013 on temporary measures relating to the eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus (ECB/2013/22)

text:
               18.7.2013

               EN

               Official Journal of the European Union

               L 195/27

         DECISION OF THE EUROPEAN CENTRAL BANK
   of 5 July 2013
   on temporary measures relating to the eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus
   (ECB/2013/22)
   (2013/388/EU)
   THE GOVERNING COUNCIL OF THE EUROPEAN CENTRAL BANK,
   Having regard to the Treaty on the Functioning of the European Union, and in particular the first indent of Article 127(2) thereof,
   Having regard to the Statute of the European System of Central Banks and of the European Central Bank, and in particular the first indent of Article 3.1, Article 12.1, Article 18 and the second indent of Article 34.1,
   Having regard to Guideline ECB/2011/14 of 20 September 2011 on monetary policy instruments and procedures of the Eurosystem (1), and in particular Section 1.6 and Sections 6.3.1, 6.3.2 and 6.4.2 of Annex I thereof,
   Having regard to Guideline ECB/2013/4 of 20 March 2013 on additional temporary measures relating to Eurosystem refinancing operations and eligibility of collateral and amending Guideline ECB/2007/9 (2), and in particular Article 1(3) and Articles 5 and 7 thereof,
   Whereas:

               (1)

               Pursuant to Article 18.1 of the Statute of the European System of Central Banks and of the European Central Bank, the European Central Bank (ECB) and the national central banks of Member States whose currency is the euro (hereinafter the ‘NCBs’) may conduct credit operations with credit institutions and other market participants, with lending being based on adequate collateral. The standard criteria determining the eligibility of collateral for the purposes of Eurosystem monetary policy operations are laid down in Annex I to Guideline ECB/2011/14.

               (2)

               Pursuant to Section 1.6 of Annex I to Guideline ECB/2011/14, the Governing Council may, at any time, change the instruments, conditions, criteria and procedures for the execution of Eurosystem monetary policy operations. Pursuant to Section 6.3.1 of Annex I to Guideline ECB/2011/14, the Eurosystem reserves the right to determine whether an issue, issuer, debtor or guarantor fulfils its requirements for high standards on the basis of any information it may consider relevant.

               (3)

               Decision ECB/2013/13 of 2 May 2013 on temporary measures relating to the eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus (3) temporarily suspended, as an exceptional measure, the Eurosystem’s minimum requirements for credit quality thresholds applicable to marketable debt instruments issued or fully guaranteed by the Republic of Cyprus. Following the launch by the Republic of Cyprus of a debt management exercise involving its marketable debt instruments, the Governing Council decided that the adequacy as collateral for Eurosystem monetary policy operations of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus was negatively affected, and decided to repeal Decision ECB/2013/13 on 28 June 2013 (4).

               (4)

               Following completion of the debt management exercise and confirmation that the Republic of Cyprus is complying with the conditionality of the economic and financial adjustment programme applicable to it, the Governing Council has further assessed that marketable debt instruments issued or fully guaranteed by the Republic of Cyprus currently have a quality standard sufficient to warrant their eligibility as collateral for Eurosystem monetary policy operations.

               (5)

               The Governing Council has therefore decided that the eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus for Eurosystem monetary policy operations should again be restored, subject to applying specific haircuts to such instruments different from those provided for in Section 6.4.2 of Annex I to Guideline ECB/2011/14.

               (6)

               Under Article 7 of Guideline ECB/2013/4, the Eurosystem’s credit quality threshold does not apply to marketable debt instruments issued or fully guaranteed by the central governments of euro area Member States under a European Union/International Monetary Fund programme, unless the Governing Council decides that the respective Member State does not comply with the conditionality of the financial support and/or the macroeconomic programme. However, under Article 1(3) of the same Guideline, for the purposes of its Article 5(1) and Article 7, only Ireland, the Hellenic Republic and Portugal are considered euro area Member States compliant with a European Union/International Monetary Fund programme. Therefore an additional Governing Council decision is required to waive the Eurosystem’s credit quality threshold for marketable debt instruments issued or fully guaranteed by the Republic of Cyprus.

               (7)

               This exceptional measure will apply temporarily until the Governing Council considers that the normal application of the Eurosystem’s eligibility criteria and risk control framework for monetary policy operations can be reintroduced,

         HAS ADOPTED THIS DECISION:
   Article 1
   Suspension of certain provisions of Guideline ECB/2011/14 and eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus
   1.   The Eurosystem’s minimum requirements for credit quality, as specified in the Eurosystem credit assessment framework rules for certain marketable assets in Section 6.3.2 of Annex I to Guideline ECB/2011/14, shall be suspended for marketable debt instruments issued or fully guaranteed by the Republic of Cyprus. Hence, for the purposes of Article 5(1) and Article 7 of Guideline ECB/2013/4, the Republic of Cyprus shall be considered a euro area Member State compliant with a European Union/International Monetary Fund programme.
   2.   Marketable debt instruments issued or fully guaranteed by the Republic of Cyprus shall be subject to the specific haircuts set out in the Annex to this Decision.
   3.   In the event of any discrepancy between this Decision, Guideline ECB/2011/14 and Guideline ECB/2013/4, in each case as implemented at national level by the NCBs, this Decision shall prevail.
   Article 2
   Entry into force
   This Decision shall enter into force on 5 July 2013.

      Done at Frankfurt am Main, 5 July 2013.

            The President of the ECB

         Mario DRAGHI

      (1)  OJ L 331, 14.12.2011, p. 1.

      (2)  OJ L 95, 5.4.2013, p. 23.

      (3)  OJ L 133, 17.5.2013, p. 26.

      (4)  Decision ECB/2013/21 of 28 June 2013 repealing Decision ECB/2013/13 on temporary measures relating to the eligibility of marketable debt instruments issued or fully guaranteed by the Republic of Cyprus (OJ L 192, 13.7.2013, p. 75).

      ANNEX

         Haircut schedule applying to marketable debt instruments issued or fully guaranteed by the Republic of Cyprus

                     Government bonds

                     Maturity bucket

                     Haircuts for fixed coupons and floaters

                     Haircuts for zero coupon

                     0-1

                  14,5

                  14,5

                     1-3

                  27,5

                  29,5

                     3-5

                  37,5

                  40,0

                     5-7

                  41,0

                  45,0

                     7-10

                  47,5

                  52,5

                     > 10

                  57,0

                  71,0

                     Government guaranteed bank bonds and government-guaranteed non-financial corporate bonds

                     Maturity bucket

                     Haircuts for fixed coupons and floaters

                     Haircuts for zero coupon

                     0-1

                  23,0

                  23,0

                     1-3

                  37,0

                  39,0

                     3-5

                  47,5

                  50,5

                     5-7

                  51,5

                  55,5

                     7-10

                  58,0

                  63,0

                     > 10

                  68,0

                  81,5


title: 2004/15/: EFTA Surveillance Authority Decision No 15/04/COL of  18 February 2004  amending for the forty-first time the Procedural and Substantive Rules in the Field of State Aid by introducing a new chapter 9C: Professional secrecy in State aid decisions

text:
               8.6.2006

               EN

               Official Journal of the European Union

               L 154/27

         EFTA SURVEILLANCE AUTHORITY DECISION

   No 15/04/COL
   of 18 February 2004
   amending for the forty-first time the Procedural and Substantive Rules in the Field of State Aid by introducing a new chapter 9C: Professional secrecy in State aid decisions
   THE EFTA SURVEILLANCE AUTHORITY,
   Having regard to the Agreement on the European Economic Area (1), in particular to Articles 61 to 63 and Protocol 26 thereof,
   Having regard to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (2), in particular to Article 24, Article 5(2)(b) and Article 1 in Part I of Protocol 3 thereof (3),
   Whereas under Article 24 of the Surveillance and Court Agreement, the EFTA Surveillance Authority shall give effect to the provisions of the EEA Agreement concerning State aid,
   Whereas under Article 5(2)(b) of the Surveillance and Court Agreement, the EFTA Surveillance Authority shall issue notices or guidelines on matters dealt with in the EEA Agreement, if that Agreement or the Surveillance and Court Agreement expressly so provides or if the EFTA Surveillance Authority considers it necessary,
   Recalling the Procedural and Substantive Rules in the Field of State Aid (4) adopted on 19 January 1994 by the EFTA Surveillance Authority,
   Whereas the European Commission issued a new communication C(2003) 4582 on professional secrecy in State aid decisions on 1 December 2003 (5),
   Whereas this communication is also of relevance for the European Economic Area,
   Whereas a uniform application of the EEA State aid rules is to be ensured throughout the European Economic Area,
   Whereas, according to point II under the heading ‘GENERAL’ at the end of Annex XV to the EEA Agreement, the EFTA Surveillance Authority is to adopt, after consultation with the Commission, acts corresponding to those adopted by the European Commission,
   Having consulted the European Commission,
   Recalling that the EFTA Surveillance Authority has consulted the EFTA States in a multilateral meeting on 3 February 2004 on the subject,
   HAS ADOPTED THIS DECISION:

               1.

               The State Aid Guidelines shall be amended by adding a new Chapter 9C with the title ‘Professional secrecy in State aid decisions’.

               2.

               The new Chapter 9C to the State Aid Guidelines can be found in the Annex to this Decision.

               3.

               The EFTA States shall be informed by means of a letter, including a copy of this Decision and including the Annex.

               4.

               The European Commission shall be informed, in accordance with point (d) of Protocol 27 of the EEA Agreement, by means of a copy of this Decision, including the Annex.

               5.

               The Decision, including the Annex, shall be published in the EEA Section of and in the EEA Supplement to the Official Journal of the European Union.

               6.

               The Decision shall be authentic in the English language.

      Done at Brussels, 18 February 2004.

            For the EFTA Surveillance Authority

         Hannes HAFSTEIN

            President

         Bernd HAMMERMANN

            College Member

      (1)  Hereinafter referred to as the EEA Agreement.

      (2)  Hereinafter referred to as the Surveillance and Court Agreement.

      (3)  It has to be noted that the amendments to Protocol 3 to the Surveillance and Court Agreement, following an agreement between EFTA States of 10.12.2001, amending Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, entered into force on 28.8.2003. These amendments incorporated ‘Council Regulation (EC) No 659/1999 of 22.3.1999, laying down detailed rules for the application of [ex] Article 93 of the EC Treaty’ into Protocol 3.

      (4)  Guidelines on the application and interpretation of Articles 61 and 62 of the EEA Agreement and Article 1 of Protocol 3 to the Surveillance and Court Agreement, adopted and issued by the EFTA Surveillance Authority on 19.1.1994, OJ No L 231 of 3.9.1994, EEA Supplement No 32, last amended by the Authority's Decision No 198/03/COL of 5.11.2003, not yet published. Hereinafter referred to as the State Aid Guidelines.

      (5)  Commission communication C(2003) 4582 of 1 December 2003 on professional secrecy in State aid decisions, published in OJ No C 297 of 9 December 2003, page 6.

      ANNEX
      9C.   PROFESSIONAL SECRECY IN STATE AID DECISIONS
      9C.1.   Introduction

                  1.

                  This Communication sets out how the EFTA Surveillance Authority intends to deal with requests by EFTA States, as addressees of State Aid decisions, to consider parts of such decisions as covered by the obligation of professional secrecy and thus not to be disclosed when the decision is published.

                  2.

                  This involves two aspects, namely:

                              (a)

                              the identification of the information which might be covered by the obligation of professional secrecy; and

                              (b)

                              the procedure to be followed for dealing with such requests.

            9C.2.   Legal framework

                  1.

                  Article 122 of the EEA Agreement, which corresponds in the wording to Article 287 of the EC Treaty, states that: ‘The representatives, delegates and experts of the Contracting Parties, as well as officials and other servants acting under this Agreement shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation on professional secrecy, in particular information about undertakings, their business relations or their cost components’.

                  2.

                  This is also reflected in Articles 24 and 25 of Part II to Protocol 3 to the Surveillance and Court Agreement on the Functions and Powers of the EFTA Surveillance Authority in the field of State Aid (1).

                  3.

                  Article 16 of the Surveillance and Court Agreement states: ‘Decisions of the EFTA Surveillance Authority shall state the reasons on which they are based’.

                  4.

                  Article 6(1), first sentence of Protocol 3 to the Surveillance and Court Agreement further stipulates with regard to decisions to initiate the formal investigation procedures: ‘The decision to initiate the formal investigation procedure shall summarise the relevant issues of fact and law, shall include a preliminary assessment of the EFTA Surveillance Authority as to the aid character of the proposed measure and shall set out the doubts as to its compatibility with the common market […]’.

            9C.3.   Identification of information which can be covered by professional secrecy

                  1.

                  The EC Court of Justice has established that although Article 287 of the EC Treaty primarily refers to information gathered from undertakings, the expression ‘in particular’ shows that the principle in question is a general one which applies also to other confidential information (2).

                  2.

                  It follows that professional secrecy covers both business secrets and other confidential information.

                  3.

                  There is no reason why the notions of business secret and other confidential information should be interpreted differently from the meaning given to these terms in the context of antitrust and merger procedures. The fact that in antitrust and merger procedures the addressees of the Authority decision are undertakings, while in State Aid procedures the addressees are EFTA States, does not constitute an obstacle to a uniform approach as to the identification of what can constitute business secrets or other confidential information.

            9C.3.1.   Business secrets

                  1.

                  Business secrets can only concern information relating to a business which has actual or potential economic value, the disclosure or use of which could result in economic benefits for other companies. Typical examples are methods of assessing manufacturing and distribution costs, production secrets (that is to say, a secret, commercially valuable plan, formula, process or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort) and processes, supply sources, quantities produced and sold, market shares, customer and distributor lists, marketing plans, cost price structure, sales policy, and information on the internal organisation of the undertaking.

                  2.

                  It would appear that in principle business secrets can only relate to the beneficiary of the aid (or other third party) and can only concern information submitted by the EFTA State (or third party). Hence, statements from the Authority itself (for example, expressing doubts about feasibility of a restructuring plan) cannot be covered by the obligation of professional secrecy.

                  3.

                  The simple fact that disclosure of information might cause harm to the company is not of itself sufficient grounds to consider that such information should be considered as business secret. For example, a decision of the Authority to initiate the formal investigation procedure in the case of a restructuring aid may cast doubt on certain aspects of the restructuring plan in the light of information the Authority has received. Such a decision could (further) affect the credit-position of that company. However, that would not necessarily lead to the conclusion that the information on which that decision was based must be considered as business secrets.

                  4.

                  In general, the Authority will apply the following non-exhaustive list of criteria to determine whether information can be deemed to constitute business secrets:

                              (a)

                              the extent to which the information is known outside the company;

                              (b)

                              the extent to which measures have been taken to protect the information within the company, for example, through non-compete clauses or non-disclosure agreements imposed on employees or agents, etc;

                              (c)

                              the value of the information for the company and its competitors;

                              (d)

                              the effort or investment which the undertaking had to undertake to acquire the information;

                              (e)

                              the effort which others would need to undertake to acquire or copy the information;

                              (f)

                              the degree of protection offered to such information under the legislation of the EFTA State concerned.

                  5.

                  In principle, the Authority considers that the following information would not normally be covered by the obligation of professional secrecy:

                              (a)

                              information which is publicly available, including information available only upon payment through specialised information services or information which is common knowledge among specialists in the field (for example common knowledge among engineers or medical doctors). Likewise, turnover is not normally considered as a business secret, as it is a figure published in the annual accounts or otherwise known to the market. Reasons must be given for requests for confidentiality concerning turnover figures which are not in the public domain and the requests must be evaluated on a case-by-case basis. The fact that information is not publicly available does not necessarily mean that the information can be regarded as a business secret;

                              (b)

                              historical information, in particular information at least five years old;

                              (c)

                              statistical or aggregate information;

                              (d)

                              names of aid recipients, sector of activity, purpose and amount of the aid, etc.

                  6.

                  Detailed reasons must be given for any request to derogate from these principles in exceptional cases.

            9C.3.2.   Other confidential information

                  1.

                  In antitrust and merger cases, confidential information includes certain types of information communicated to the Authority on condition that confidentiality is observed (for example a market study commissioned by an undertaking which is party to the procedure and forming part of its property). It seems that a similar approach could be retained for State Aid decisions.

                  2.

                  In the field of State Aid, there may, however, be some forms of confidential information, which would not necessarily be present in antitrust and merger procedures, referring specifically to secrets of the State or other confidential information relating to its organisational activity. Generally, in view of the Authority's obligation to state the reasons for its decisions and the transparency requirement, such information can only in very exceptional circumstances be covered by the obligation of professional secrecy. For example, information regarding the organisation and costs of public services will not normally be considered ‘other confidential information’ (although it may constitute a business secret, if the criteria laid down in section 9C. 3.1 are met).

            9C.4.   Applicable procedure
      9C.4.1.   General principles

                  1.

                  The Authority's main task is to reconcile two opposing obligations, namely the requirement to state the reasons for its decisions under Article 16 of the Surveillance and Court Agreement and therefore ensure that its decisions contain all the essential elements on which they are based, and that of safeguarding the obligation of professional secrecy.

                  2.

                  Besides the basic obligation to state the reasons for its decisions, the Authority has to take into account the need for effective application of the State Aid rules (inter alia, by giving EFTA States, beneficiaries and interested parties the possibility to comment on or challenge its decisions) and for transparency of its policy. There is therefore an overriding interest in making public the full substance of its decisions. As a general principle, requests for confidential treatment can only be granted where strictly necessary to protect business secrets or other confidential information meriting similar protection.

                  3.

                  Business secrets and other confidential information do not enjoy an absolute protection: this means for example that they could be divulged when they are essential for the Authority's statement of the reasons for its decisions. This means that information necessary for the identification of an aid measure and its beneficiary cannot normally be covered by the obligation of professional secrecy. Similarly, information necessary to demonstrate that the conditions of Article 61 of the EEA Agreement are met, cannot normally be covered by the obligation of professional secrecy. However, the Authority will have to consider carefully whether the need for publication is more important, given the specific circumstances of a case, than the prejudice that might be generated for that EFTA State or undertaking involved.

                  4.

                  The public version of a Authority decision can only feature deletions from the adopted version for reasons of professional secrecy. Paragraphs cannot be moved, and no sentence can be added or altered. Where the Authority considers that certain information cannot be disclosed, a footnote may be added, paraphrasing the non-disclosed information or indicating a range of magnitude or size, if useful to assure the comprehensibility and coherence of the decision.

                  5.

                  Requests not to disclose the full text of a decision or substantial parts of it which would undermine the understanding of the Authority's statement of reasons cannot be accepted.

                  6.

                  If there is a complainant involved, the Authority will take into account the complainant's interest in ascertaining the reasons why the Authority adopted a certain decision, without the need to have recourse to Court proceedings (3). Hence, requests by EFTA States for parts of the decision which address concerns of complainants to be covered by the obligation of professional secrecy will need to be particularly well reasoned and persuasive. On the other hand, the Authority will not normally be inclined to disclose information alleged to be of the kind covered by the obligation of professional secrecy where there is a suspicion that the complaint has been lodged primarily to obtain access to the information.

                  7.

                  EFTA States cannot invoke professional secrecy to refuse to provide information to the Authority which the Authority considers necessary for the examination of aid measures. In this respect, reference is made to the procedure set out in Protocol 3 to the Surveillance and Court Agreement (in particular Articles 2(2), 5, 10 and 16 in Part II of Protocol 3).

            9C.4.2.   Procedure

                  1.

                  The Authority currently notifies its decisions to the EFTA State concerned without delay and gives the latter the opportunity to indicate, normally within a time period of 15 working days, which information it considers to be covered by the obligation of professional secrecy. This time period may be extended by agreement between the Authority and the EFTA State concerned.

                  2.

                  Where the EFTA State concerned does not indicate which information it considers to be covered by the obligation of professional secrecy within the period prescribed by the Authority, the decision will normally be disclosed in full.

                  3.

                  Where the EFTA State concerned wishes certain information to be covered by the obligation of professional secrecy, it must indicate the parts it considers to be covered and provide a justification in respect of each part for which non-disclosure is requested.

                  4.

                  The Authority will then examine the request from the EFTA State without delay. If the Authority does not accept that certain parts of the decision are covered by the obligation of professional secrecy, it will state the reasons why in its view those parts cannot be left out of the public version of the decision. In the absence of an acceptable justification by the EFTA State for its request (i.e. reasoning which is not manifestly irrelevant or manifestly wrong), the Authority need not further specify the reasons why those parts cannot be left out of the public version of the decision other than by referring to the absence of justification.

                  5.

                  If the Authority decides to accept that certain parts are covered by the obligation of professional secrecy without agreeing in full with the EFTA State's request, it will notify its decision with a new draft to the EFTA State indicating the parts which have been omitted. If the Authority accepts that the parts indicated by the EFTA State are covered by the obligation of professional secrecy, the text of the decision will be published pursuant to Article 26 in Part II of Protocol 3 to the Surveillance and Court Agreement, with the omission of the parts covered by the obligation of professional secrecy. Such omissions will be indicated in the text (4).

                  6.

                  The EFTA State will have 15 working days following receipt of the Authority's decision stating the reasons for its refusal to accept the non-disclosure of certain parts, to react and provide additional elements to justify its request.

                  7.

                  If the EFTA State concerned does not react further within the period prescribed by the Authority, the Authority will normally publish the decision as indicated in its reply to the original request made by the EFTA State.

                  8.

                  If the EFTA State concerned does submit any additional elements within the prescribed period, those elements will be examined by the Authority without delay. If the Authority accepts that the parts indicated by the EFTA State are covered by the obligation of professional secrecy, the text of the decision will be published as set out above.

                  9.

                  In the event that it is not possible to reach agreement, the Authority will proceed with the publication of its decision to initiate the formal investigation procedure forthwith. Such decisions must summarise the relevant issues of fact and law, include a preliminary assessment of the aid character of the proposed measure and set out the doubts as to its compatibility with the common market. Clearly certain essential information must be included in order to enable third parties and the other EFTA States to comment usefully. The duty of the Authority to provide such essential information will normally prevail over any claim to the protection of business secrets or other confidential information. Furthermore, it is in the interest of the beneficiary as well as interested parties to have access to such a decision as quickly as possible. Permitting any delay in this respect would jeopardise the process of State Aid control.

                  10.

                  In the event that it is not possible to reach agreement on requests for certain information in decisions not to raise objections and decisions to close the formal investigation procedure to be covered by the obligation of professional secrecy, the Authority will notify its final decision to the EFTA State together with the text it intends to publish, giving the EFTA State another 15 working days to react. In the absence of an answer which the Authority considers pertinent, the Authority will normally proceed with the publication of the text.

                  11.

                  The Authority is currently reviewing its State Aid notification forms. In order to avoid unnecessary correspondence with EFTA States and delay in the publication of decisions, it intends, in the future, to include in the form a question asking whether the notification contains information which should not be published, and the reasons for non-publication. Only if that question is answered in the affirmative will the Authority enter into correspondence with the EFTA State in respect of specific cases. Similarly, if additional information is required by the Authority, the EFTA State will have to indicate at the moment it provides the information requested whether such information should not be published, and the reasons for non-publication. If the Authority uses the information thus identified by the EFTA State in its decision, it will communicate the adopted decision to the EFTA State, stating the reasons why in its view these parts cannot be left out from the public version of the decision as laid down above.

                  12.

                  Once the Authority has decided what text it will publish and notified the EFTA State of its final decision, it is for the EFTA State to decide whether or not to make use of any judicial procedures available to it, including any interim measures, within the time-limits provided for in Article 36 of the Surveillance and Court Agreement.

            9C.4.3.   Third parties

                  1.

                  Where third parties other than the EFTA State concerned (for example, complainants, other EFTA States or the beneficiary) submit information in the context of State Aid procedures, these guidelines will be applied mutatis mutandis.

            9C.4.4.   Application in time

                  1.

                  These guidelines cannot establish binding legal rules and do not purport to do so. They merely set out in advance, in the interests of sound administration, the manner in which the Authority intends to address the issue of confidentiality in State Aid procedures. As a rule, if agreement cannot be reached, the Authority's decision to publish may be the subject of specific judicial review proceedings. As these guidelines merely pertain to procedural matters (and to a large extent set out existing practice), they will be applied with immediate effect, including for decisions not to raise objections (5) adopted before the entry into force of the amendments (6) to Protocol 3 to the Surveillance and Court Agreement to which third parties seek access.

         (1)  It has to be noted that the amendments to Protocol 3 to the Surveillance and Court Agreement, following an agreement between EFTA States of 10.12.2001, amending Protocol 3 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, entered into force on 28.8.2003. These amendments incorporated ‘Council Regulation (EC) No 659/1999 of 22.3.1999, laying down detailed rules for the application of [ex] Article 93 of the EC Treaty’ into Protocol 3.

         (2)  Case 145/83 Adams v Commission [1985] ECR 3539, para. 34, and Case T-353/94 Postbank v Commission [1996] ECR II-921, para. 86.

         (3)  Case C-367/95 P Commission v Sytraval [ECR] 1998, I-1719, para. 64.

         (4)  Using square brackets […] and indicating in a footnote ‘covered by the obligation of professional secrecy’.

         (5)  Decisions to initiate the formal investigation procedure and final decisions adopted before that date were already published in the Official Journal of the European Communities (from the entry into force of the Nice Treaty renamed as Official Journal of the European Union), EEA Section. Prior to publication, EFTA States could indicate whether any information was covered by the obligation of professional secrecy.

         (6)  See footnote 1.