19.6.2013   

EN

Official Journal of the European Union

L 167/1

(1)

On 3 May 2012, the Council adopted Regulation (EU) No 377/2012.

(2)

The Council has carried out a complete review of the list of persons, as set out in Annex I to Regulation (EU) No 377/2012, to which Article 2(1) and (2) of that Regulation apply. The Council has concluded that the persons listed in Annex I to Regulation (EU) No 377/2012 should continue to be subject to the specific restrictive measures provided for therein.

(3)

On 20 March 2013, the United Nations Security Council Committee, established pursuant to United Nations Security Council Resolution 2048 (2012), updated the information concerning one designated person. In order to implement the decision of the Committee, the Council adopted Implementing Decision 2013/293/CFSP of 18 June 2013 implementing Decision 2012/285/CFSP concerning restrictive measures directed against certain persons, entities and bodies threatening the peace, security or stability of the Republic of Guinea-Bissau (2).

(4)

The entry for that person in Annex I to Regulation (EU) No 377/2012 should be amended accordingly,

19.6.2013   

EN

Official Journal of the European Union

L 167/3

(1)

In accordance with the first subparagraph of Article 53(1) of Regulation (EU) No 1151/2012, the Commission has examined the United Kingdom’s application for the approval of an amendment to the specification for the protected geographical indication ‘Traditional Grimsby Smoked Fish’, registered under Commission Regulation (EC) No 986/2009 (2).

(2)

The application concerns an amendment to the method of production in order to provide flexibility in the sourcing of the raw materials to now include fillets as well as fresh whole fish.

(3)

The Commission has examined the amendment in question and decided that it is justified. Since this concerns a minor amendment, in accordance with Article 53(2) of Regulation (EU) No 1151/2012, the Commission may adopt it without using the procedure set out in Articles 50 and 52 of that Regulation,

19.6.2013   

EN

Official Journal of the European Union

L 167/8

(1)

Regulation (EU) No 1151/2012 repealed and replaced Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (2).

(2)

By virtue of the first subparagraph of Article 9(1) of Regulation (EC) No 510/2006, the Commission has examined Germany’s application for the approval of amendments to the specification for the protected geographical indication ‘Schwarzwälder Schinken’ registered under Commission Regulation (EC) No 123/97 (3).

(3)

Since the amendments in question are not minor, the Commission published the amendment application in the Official Journal of the European Union, as required by Article 6(2) of Regulation (EC) No 510/2006 (4). As no statement of objection under Article 7 of that Regulation has been received by the Commission, the amendments to the specification should be approved,

19.6.2013   

EN

Official Journal of the European Union

L 167/10

(1)

Regulation (EU) No 1151/2012 entered into force on 3 January 2013. It repealed and replaced Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (2).

(2)

By virtue of the first subparagraph of Article 9(1) of Regulation (EC) No 510/2006, the Commission has examined Portugal’s application for the approval of amendments to the specification for the protected geographical indication ‘Queijo Serra da Estrela’ registered under Commission Regulation (EC) No 1107/96 (3), as amended by Regulation (EC) No 197/2008 (4).

(3)

The purpose of the application is to amend the specification. Portugal requests the possibility of marketing ‘Queijo Serra da Estrela’ in a smaller format (0.5 kg). The minimum diameter of the cheese shall therefore be reduced from 11 to 9 cm. Portugal also requests for it to be made mandatory to affix a numbered casein mark in order to improve the traceability of the product.

(4)

The Commission has examined the amendments in question and decided that they are justified. Since this is a minor amendment, the Commission may adopt it without using the procedure set out in Articles 50 to 52 of Regulation (EU) No 1151/2012,

19.6.2013   

EN

Official Journal of the European Union

L 167/15

(1)

Regulation (EU) No 1151/2012 repealed and replaced Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs (2).

(2)

By virtue of the first subparagraph of Article 9(1) of Regulation (EC) No 510/2006, the Commission has examined Spain’s application for the approval of amendments to the specification for the protected designation of origin ‘Arroz del Delta del Ebro’/‘Arròs del Delta de l’Ebre’ registered under Commission Regulation (EC) No 1059/2008 (3).

(3)

Since the amendments in question are not minor, the Commission published the amendment application in the Official Journal of the European Union  (4), as required by Article 6(2) of Regulation (EC) No 510/2006. As no statement of objection under Article 7 of that Regulation has been received by the Commission, the amendments to the specification should be approved,

19.6.2013   

EN

Official Journal of the European Union

L 167/17

(1)

The structure and amount of the fees payable to the European Chemicals Agency, (hereinafter referred to as ‘the Agency’), as well as the conditions for payment should be established.

(2)

The structure and amount of the fees should take account of the work required by Regulation (EU) No 528/2012 to be carried out by the Agency. Fees should be set at such a level as to ensure that the revenue derived from them, when combined with other sources of the Agency’s revenue, is sufficient to cover the cost of the services delivered.

(3)

It follows from Article 80(3)(d) of Regulation (EU) No 528/2012 that the structure and amount of fees is to take into account whether information has been submitted jointly or separately. In order to reflect the actual work load of the Agency and to promote joint submission of information, it is appropriate to only levy one fee per application, in case several persons apply jointly for the approval of an active substance or the renewal of an approval of an active substance.

(4)

To take into account the specific needs of small and medium-sized enterprises within the meaning of Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium sized enterprises (2) (hereinafter ‘SMEs’) established in the Union, reduced fees for active substance approval, renewal of approval or inclusion in Annex I to Regulation (EU) No 528/2012 and biocidal product authorisation or renewal should apply to such companies. The levels of the reductions should take into account the significant proportion of SMEs in the biocides sector combined with the interest of avoiding excessive fees for other enterprises while ensuring that the Agency’s work is fully financed. For the purpose of discouraging applications for products containing active substances fulfilling one of the substitution criteria listed in Article 10(1) of Regulation (EU) No 528/2012, as well as of such active substances, reductions should not apply to applications for such biocidal products or active substances.

(5)

Taking into account the Agency’s work required to handle an appeal lodged in accordance with Article 77 of Regulation (EU) No 528/2012, it is appropriate to levy a fee for such appeals in accordance with the third subparagraph of Article 77(1) of that Regulation. However, to avoid penalising persons launching justified appeals, it is appropriate to refund such fees where the appeal is well founded.

(6)

Taking into account the reduced work required by the Agency in cases where applications are rejected before or during validation, or withdrawn during their assessment, it is appropriate to provide for partial refund of fees in such cases.

(7)

For the purpose of encouraging applications for approval of active substances that are suitable alternatives to approved active substances fulfilling one of the exclusion criteria listed in Article 5(1) of Regulation (EU) No 528/2012, it is appropriate to provide for reimbursement of the fee for such applications.

(8)

The fee for applications for inclusion in Annex I to Regulation (EU) No 528/2012 of active substances that do not give rise to concern should take into account the estimated work required by the Agency to handle such applications, as well as the public interest in allowing products containing such substances to be authorised.

(9)

For the purpose of discouraging applications for approval or renewal of approval of active substances fulfilling one of the substitution criteria listed in Article 10(1) of Regulation (EU) No 528/2012 as well as applications for authorisation or renewal of products requiring a comparative assessment in accordance with Article 23 of Regulation (EU) No 528/2012, and of contributing to financing the waivers and reductions provided for by this Regulation, it is appropriate to provide for increased fees for such applications.

(10)

In view of the Agency’s work required to handle a request for an opinion on the classification of a change in accordance with Commission Implementing Regulation (EU) No 354/2013 of 18 April 2013 on changes of biocidal products authorised in accordance with Regulation (EU) No 528/2012 of the European Parliament and of the Council (3), it is appropriate to levy a fee for such requests. However, to avoid, to the extent possible, penalising applicants whose requests to have a change classified as minor or administrative are justified, it is appropriate to grant a fee reduction to the subsequent application for a change, where the request leads to a recommendation to classify the change as an administrative or minor change.

(11)

Given the Agency’s work required to treat submissions for inclusion in the list of relevant persons referred to in Article 95 of Regulation (EU) No 528/2012, it is appropriate to levy a fee for such submissions. The amount of work required for such submission will vary significantly depending on whether the relevant person submits a letter of access or a new dossier, since, in the latter case, the Agency will have to check that the dossier complies with Annex II to Regulation (EU) No 528/2012 or, where appropriate, Annex IIA to Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing on the market of biocidal products (4). It is appropriate to differentiate the fee accordingly.

(12)

Given the Agency’s work required to handle a request for confidentiality in accordance with Article 66(4) of Regulation (EU) No 528/2012, it is appropriate to levy a fee for such requests.

(13)

Since the Agency’s budget is drawn up and implemented in euro, and its accounts are also presented in euro in accordance with Article 19 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (5), with Article 17 of Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 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 (6) and with Article 17 of the Financial Regulation of the European Chemicals Agency of 24 September 2008 (7), it is appropriate to levy fees only in euro.

(14)

It follows from Article 80(3)(f) of Regulation (EU) No 528/2012 that the deadlines for the payment of fees should be fixed taking due account of the deadlines of the procedures provided for in that Regulation.

(15)

The fees set out in this Regulation should be reviewed at appropriate intervals, with a view to aligning the fees with the inflation rate and with the actual costs to the Agency of the services provided. These reviews should take into account the Agency’s increased experience in dealing with applications under the Regulation and the efficiencies thereby gained.

(16)

The Standing Committee on Biocidal Products referred to in Article 82(1) of Regulation (EU) No 528/2012 did not deliver an opinion on the measures provided for in this Regulation. Since an implementing act was deemed to be necessary, the chair submitted the draft implementing act to the appeal committee for further deliberation. The appeal committee did not deliver an opinion,

19.6.2013   

EN

Official Journal of the European Union

L 167/26

(1)

Commission Regulation (EC) No 792/2009 of 31 August 2009 laying down detailed rules for the Member States’ notification to the Commission of information and documents in implementation of the common organisation of the markets, the direct payments’ regime, the promotion of agricultural products and the regimes applicable to the outermost regions and the smaller Aegean islands (2), establishes common rules for notifying information and documents by Member States to the Commission. Those rules cover in particular the obligation for the Member States to use the information systems made available by the Commission and the validation of the access rights of the authorities or individuals authorised to send notifications. Regulation (EC) No 792/2009 also sets common principles applying to the information systems so that they guarantee the authenticity, integrity and legibility over time of the documents and provides for personal data protection. The obligation to use these information systems has to be provided for in each regulation establishing a specific notification obligation.

(2)

The Commission has developed an information system that allows managing documents and procedures electronically in its own internal working procedures and in its relations with the authorities involved in the common agricultural policy.

(3)

Several notification obligations can be fulfilled via that system, in particular those provided for in Commission Regulations (EC) No 1731/2006 of 23 November 2006 on special detailed rules for the application of export refunds in the case of certain preserved beef and veal products (3), (EC) No 273/2008 of 5 March 2008 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards methods for the analysis and quality evaluation of milk and milk products (4), (EC) No 566/2008 of 18 June 2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards the marketing of the meat of bovine animals aged 12 months or less (5), (EC) No 867/2008 of 3 September 2008 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 as regards operators’ organisations in the olive sector, their work programmes and the financing thereof (6) and (EC) No 606/2009 of 10 July 2009 laying down certain detailed rules for implementing Council Regulation (EC) No 479/2008 as regards the categories of grapevine products, oenological practices and the applicable restrictions (7), and Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (8).

(4)

In the interest of efficient administration and taking account of the experience, some notifications should be simplified, specified or deleted.

(5)

Commission Regulation (EC) No 491/2007 of 3 May 2007 laying down detailed rules for implementing Council Regulation (EC) No 1947/2005 as regards the communication of data concerning seeds (9) covers only notifications which are no longer useful due to the end of the specific aid for certain species of seeds.

(6)

Implementing Regulation (EU) No 543/2011 foresees in its Article 135 a notification of customary market days for the representative markets. Since the electronic notification system allows to notify prices daily, it is no longer necessary to notify customary market days.

(7)

Commission Implementing Regulation (EU) No 1333/2011 (10) foresees in its Article 9 an obligation to notify the Commission of the list of traders marketing bananas granted the exemption from checks on conformity with marketing standards. This notification has not proved to be useful for ensuring compliance with those marketing standards in the banana sector. It should therefore be deleted.

(8)

Regulations (EC) No 1731/2006, (EC) No 273/2008, (EC) No 566/2008, (EC) No 867/2008 and (EC) No 606/2009, and Implementing Regulations (EU) No 543/2011 and (EU) No 1333/2011, should therefore be amended accordingly. Regulation (EC) No 491/2007 should be repealed.

(9)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Market,

(1)

Article 19 is deleted;

(2)

the following Article 19a is inserted:

‘Article 19a

Notifications

The notifications provided for in Article 2, Article 4(1) and in Annex III C shall be made in accordance with Commission Regulation (EC) No 792/2009 (12).

(1)

in Article 4, the following paragraph 5 is added:

‘5.   The notification of information or documents to the Commission provided for in point (c) of paragraph 1 and paragraphs 3 and 4 shall be made in accordance with Commission Regulation (EC) No 792/2009 (15).

(2)

point 2 of Appendix 3 of Annex I A is replaced by the following:

(3)

in point 3 of Annex I B, Part A, the second sentence is replaced by the following:

‘Member States shall notify the Commission, in advance and in accordance with Regulation (EC) No 792/2009, of all the necessary technical information for the wines concerned, including their product specifications and the annual quantities produced.’;

(4)

in point 3 of Annex I C, the second paragraph is replaced by the following:

‘Member States shall notify those derogations to the Commission in accordance with Regulation (EC) No 792/2009. The Commission shall then inform the other Member States.’.

(1)

in Article 134, point (a) of paragraph 1 is replaced by the following:

(2)

Article 135 is deleted;

(3)

in Article 146, paragraph 3 is replaced by the following:

‘3.   The notifications provided for in Article 9(2), Article 18(3) and (4), Articles 97 and 128, Article 129(1), Articles 130 and 131 and in this Article and the request provided for in Article 92(1), shall be made in accordance with Regulation (EC) No 792/2009.’;

(4)

the title of Annex XVII is replaced by the following: ‘Representative markets referred to in Article 134(1)(a)’.

19.6.2013   

EN

Official Journal of the European Union

L 167/29

(1)

Annex I to Regulation (EC) No 44/2001 lists the rules of national jurisdiction referred to in Articles 3(2) and 4(2) of the Regulation.

(2)

Annex I to Regulation (EC) No 44/2001 has been amended on several occasions, most recently by Commission Regulation (EU) No 156/2012 (2) so as to update the rules of national jurisdiction.

(3)

Poland has notified the Commission of additional amendments to the list set out in Annex I.

(4)

Pursuant to Article 2 of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (3), this Regulation should, under international law, apply to the relations between the European Union and Denmark.

(5)

Regulation (EC) No 44/2001 should therefore be amended accordingly,

‘—

in Poland: Article 1103 point 4 and Article 1110 of the Code of Civil Procedure (Kodeksu postępowania cywilnego) in so far as the latter establish jurisdiction exclusively on the basis of one of the following circumstances: the applicant is a Polish citizen or has their habitual residence, domicile or registered office in Poland.’

19.6.2013   

EN

Official Journal of the European Union

L 167/30

(1)

Annex III to Commission Regulation (EC) No 1235/2008 (2) sets out the list of third countries whose system of production and control measures for organic production of agricultural products are recognised as equivalent to those laid down in Regulation (EC) No 834/2007. In relation to some countries listed in that Annex as amended by Commission Implementing Regulation (EU) No 508/2012 (3) the internet address indicated for some control bodies is not correct or no longer correct.

(2)

Annex IV to Regulation (EC) No 1235/2008 sets out the list of control bodies and control authorities competent to carry out controls and issue certificates in third countries for the purpose of equivalence. In relation to some control bodies or control authorities the text of that Annex as amended by Implementing Regulation (EU) No 508/2012 and Commission Implementing Regulation (EU) No 125/2013 (4) contains errors as regards the product categories indicated for some third countries.

(3)

In addition, for one control body the internet address as indicated in Annexes III and IV to Regulation (EC) No 1235/2008 is incorrect.

(4)

Annexes III and IV to Regulation (EC) No 1235/2008 should therefore be corrected accordingly.

(5)

For the sake of legal certainty, the corrected provisions relating to AGRECO R.F. GÖDERZ GmbH should apply from the date of application of Annex II to Implementing Regulation (EU) No 508/2012 and the corrected provisions relating to IMO-Control Sertifikasyon Tic. Ltd Ști and Organización Internacional Agropecuaria should apply from the date of application of Annex II to Implementing Regulation (EU) No 125/2013.

(6)

The measures provided for in this Regulation are in accordance with the opinion of the regulatory Committee on organic production,

(1)

Annex III is corrected in accordance with Annex I to this Regulation;

(2)

Annex IV is corrected in accordance with Annex II to this Regulation.

19.6.2013   

EN

Official Journal of the European Union

L 167/33

(1)

In accordance with Article 80(1)(a) of Regulation (EC) No 1107/2009, Council Directive 91/414/EEC (2) is to apply, with respect to the procedure and the conditions for approval, to active substances for which a decision has been adopted in accordance with Article 6(3) of that Directive before 14 June 2011. For thymol the conditions of Article 80(1)(a) of Regulation (EC) No 1107/2009 are fulfilled by Commission Implementing Decision 2011/266/EU (3).

(2)

In accordance with Article 6(2) of Directive 91/414/EEC, the United Kingdom received on 7 March 2008 an application from Eden Research PLC for the inclusion of the active substance thymol in Annex I to Directive 91/414/EEC. Implementing Decision 2011/266/EU confirmed that the dossier was ‘complete’ in the sense that it could be considered as satisfying, in principle, the data and information requirements of Annexes II and III to Directive 91/414/EEC.

(3)

For that active substance, the effects on human and animal health and the environment have been assessed, in accordance with the provisions of Article 6(2) and (4) of Directive 91/414/EEC, for the uses proposed by the applicant. The designated rapporteur Member State submitted a draft assessment report on 30 June 2011.

(4)

The draft assessment report was reviewed by the Member States and the European Food Safety Authority (hereinafter ‘the Authority’). The Authority presented to the Commission its conclusion on the review of the pesticide risk assessment of the active substance thymol (4) on 15 October 2012. The draft assessment report and the conclusion of the Authority were reviewed by the Member States and the Commission within the Standing Committee on the Food Chain and Animal Health and the draft assessment report was finalised on 17 May 2013 in the format of the Commission review report for thymol.

(5)

It has appeared from the various examinations made that plant protection products containing thymol may be expected to satisfy, in general, the requirements laid down in Article 5(1)(a) and (b) and Article 5(3) of Directive 91/414/EEC, in particular with regard to the use which was examined and detailed in the Commission review report. It is therefore appropriate to approve thymol.

(6)

In accordance with Article 13(2) of Regulation (EC) No 1107/2009 in conjunction with Article 6 thereof and in the light of current scientific and technical knowledge, it is, however, necessary to include certain conditions and restrictions. It is, in particular, appropriate to require further confirmatory information.

(7)

A reasonable period should be allowed to elapse before approval in order to permit Member States and the interested parties to prepare themselves to meet the new requirements resulting from the approval.

(8)

Without prejudice to the obligations provided for in Regulation (EC) No 1107/2009 as a consequence of approval, taking into account the specific situation created by the transition from Directive 91/414/EEC to Regulation (EC) No 1107/2009, the following should, however, apply. Member States should be allowed a period of six months after approval to review authorisations of plant protection products containing thymol. Member States should, as appropriate, vary, replace or withdraw authorisations. By way of derogation from that deadline, a longer period should be provided for the submission and assessment of the update of the complete Annex III dossier, as set out in Directive 91/414/EEC, of each plant protection product for each intended use in accordance with the uniform principles.

(9)

The experience gained from inclusions in Annex I to Directive 91/414/EEC of active substances assessed in the framework of Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8(2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market (5) has shown that difficulties can arise in interpreting the duties of holders of existing authorisations in relation to access to data. In order to avoid further difficulties it therefore appears necessary to clarify the duties of the Member States, especially the duty to verify that the holder of an authorisation demonstrates access to a dossier satisfying the requirements of Annex II to that Directive. However, this clarification does not impose any new obligations on Member States or holders of authorisations compared to the Directives which have been adopted until now amending Annex I to that Directive or the Regulations approving active substances.

(10)

In accordance with Article 13(4) of Regulation (EC) No 1107/2009, the Annex to Commission Implementing Regulation (EU) No 540/2011 of 25 May 2011 implementing Regulation (EC) No 1107/2009 of the European Parliament and of the Council as regards the list of approved active substances (6) should be amended accordingly.

(11)

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

(a)

in the case of a product containing thymol as the only active substance, where necessary, amend or withdraw the authorisation by 31 May 2015 at the latest; or

(b)

in the case of a product containing thymol as one of several active substances, where necessary, amend or withdraw the authorisation by 31 May 2015 or by the date fixed for such an amendment or withdrawal in the respective act or acts which added the relevant substance or substances to Annex I to Directive 91/414/EEC or approved that substance or those substances, whichever is the latest.

19.6.2013   

EN

Official Journal of the European Union

L 167/37

(1)

Implementing Regulation (EU) No 543/2011 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XVI, Part A thereto.

(2)

The standard import value is calculated each working day, in accordance with Article 136(1) of Implementing Regulation (EU) No 543/2011, taking into account variable daily data. Therefore this Regulation should enter into force on the day of its publication in the Official Journal of the European Union,

19.6.2013   

EN

Official Journal of the European Union

L 167/39

(1)

On 31 May 2012, the Council adopted Decision 2012/285/CFSP.

(2)

The Council has carried out a complete review of the list of persons set out in Annexes II and III to Decision 2012/285/CFSP, to which Article 1(1)(b) and Article 2(1) and (2) of that Decision apply. The Council has concluded that the persons listed in Annexes II and III to Decision 2012/285/CFSP should continue to be subject to the specific restrictive measures provided for therein.

(3)

On 20 March 2013, United Nations Security Council Committee, established pursuant to United Nations Security Council Resolution 2048 (2012), updated the information concerning one person subject to the travel ban imposed under Resolution 2048 (2012).

(4)

The entries for that person in Annexes I and III to Decision 2012/285/CFSP should be amended accordingly,

19.6.2013   

EN

Official Journal of the European Union

L 167/41

(1)

By letter of 13 August 2008, Poland informed the Commission of measures it planned to grant to support the restructuring of PZL Dębica S.A. (‘PZL Dębica’ or ‘the company’). By letter of 3 October 2008 the Commission asked Poland to submit certain missing documents. These were provided on 20 October 2008.

(2)

By letter dated 19 December 2008, the Commission informed Poland that it had decided to initiate the procedure laid down in Article 108(2) of the Treaty on the Functioning of the European Union (‘the Treaty’) in respect of the measures (‘the opening decision’).

(3)

The opening decision was published in the Official Journal of the European Union  (2). The Commission called on interested parties to submit their comments. No interested third party commented on the opening decision.

(4)

The Polish authorities submitted additional information in reply to the opening decision on 12 February 2009, 9 July 2010, 16 May 2011, 7 June 2011, and 8 June 2011.

(5)

On 18 August 2011 Poland asked the Commission to refrain from assessing the notified aid until 31 October 2011. On 10 October 2011 Poland withdrew some of the notified measures i.e. a capital injection and a preferential loan which were both supposed to be awarded by the state-owned Industrial Development Agency.

(6)

On 2 November 2011 Poland submitted a report with a view to establishing that the remainder of the notification, i.e. deferral of social security debt, passed the private creditor test and therefore did not constitute state aid.

(7)

By letter of 26 July 2012 the Commission asked Poland to provide additional explanations on a number of points. Poland replied by letter dated 31 August 2012, in which it informed the Commission that an agreement on the deferral of the social security debt had been concluded on 1 March 2012 and that the outstanding debt to the local Office of the Marshall had been repaid on 14 August 2012.

(8)

Information was last provided by the Polish authorities on 6 December 2012.

(9)

PZL Dębica has 212 employees. It is a medium-sized company active primarily in the production of refrigeration equipment such as compressors, units for ice water and chillers, air and liquid coolers, spray-and-evaporative condensers, vertical and horizontal shell-and-tube condensers, tank apparatus: liquid separators, horizontal tanks, inter-stage coolers, economisers, oil separators and refrigerating valves.

(10)

The company is located in Podkarpackie Province, a region covered by Article 107(3)(a) of the Treaty. It was founded in 1938 and has been a joint stock company since 1995. In 1999 the company’s shares were held by the Treasury (25,08 %) and the employees (74,92 %). In 2006 the company was fully privatised: its shares were predominantly held by the current and former employees and their heirs. In 2010 a private investor, Eurotech, acquired a 16,7 % share in PZL Dębica.

(11)

The company's market share on the Polish refrigerator equipment market is small (less than 1 % in 2006). Exports in 2006 accounted for 15,6 % of overall sales, of which 6,8 % went outside the European Union. On the Polish market the company faces strong competition from a number of companies, for instance York International, GEA GRASSO Refrigeration Division, Mycom International Refrigeration (Ltd), MOSTOSTAL Wrocław S.A., Aerzen Maschinenfabrik GmbH and Zakład Metalowy PILZNO.

(12)

According to the Polish authorities, the company's financial difficulties date back to 2002. At that time a restructuring plan was adopted for 2002-07. The plan was updated in October 2003 and included the following measures:

(13)

Due to budgetary constraints, the Enterprise Restructuring Fund was not able to grant PZL Dębica the promised loan (recital (12)c)). Consequently, the Social Security Office decided not to defer the remainder of the debt owed to it (see recital (12)d)). As a result, the financial restructuring at the heart of the plan was not achieved by PZL Dębica.

(14)

Despite this, the company succeeded in implementing the other elements of the restructuring plan, with the result that it recorded a modest profit as early as 2006. The financial results of the company between 2002 and 2011 are summarised in Table 1 below.

Table 1

Financial results of PZL Dębica 2002-11 (PLN million)

(15)

Following the non-implementation of financial restructuring in the first restructuring plan, the Commission was notified of a second restructuring plan in August 2008. To a large extent, this second plan was designed to implement financial restructuring of the company. It provided for the following measures:

(16)

The opening decision expressed doubts as regards the compatibility with the internal market of the following aid measures forming part of the first restructuring plan:

The Commission also queried the classification of the measures listed in Table 2 below as de minimis aid.

(17)

In addition, the Commission expressed doubts as to whether the restructuring plan comprised all the elements necessary to restore PZL Dębica’s viability and whether a restructuring period of 12 years were not too long in view of point 35 of the Community Guidelines on state aid for rescuing and restructuring firms in difficulty (4) (‘the R&R Guidelines’).

(18)

In view of the aid already awarded under the first plan (recitals (12)a) and (12)b)), the Commission also questioned the company’s eligibility for new restructuring aid (see recital (15)) in the light of the one-time-last-time principle (laid down in Section 3.3 of the R&R Guidelines).

(19)

In the opening decision the Commission stated that for the measures which Poland had classified as pre-accession measures (recitals (16)a) to (16)c)) no legally binding document had been presented to it by which the competent national authorities had undertaken to grant aid.

(20)

As regards the actual amount of the aid already awarded to the company, the Commission also expressed its doubts as to whether the de minimis aid awarded in 2006 could be considered as such, as it had awarded it to a company in difficulty, which, according to Article 1(1)(h) of Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid (5), did not qualify for such aid.

(21)

Lastly, the Commission doubted that the proposed compensatory measures could be accepted as they were associated with the restoration of the company’s long-term viability and as such could not be considered as compensatory measures. The Commission also stated that Poland had not demonstrated that the abandoned activities were not loss-making.

(22)

This chapter contains only the comments of the Polish authorities relating to the measures which were not withdrawn in the course of the investigation.

(23)

As regards the length of the restructuring process, the Polish authorities stated that both restructuring plans should be treated as a single plan as the failure of the first plan was not the fault of the company and the second restructuring plan essentially continued the incomplete financial restructuring of the first plan.

(24)

Poland withdrew the aid measures listed under recitals (15)a) and (15)b) as, under the opening decision, granting these measures could potentially be incompatible with the one-time-last-time principle. The Polish authorities explained that the withdrawal was a consequence of the fact that PZL Dębica had lost large company status. As a company with fewer than 250 employees, PZL Dębica no longer qualified for financing from the Industrial Development Agency, which provides financing for large companies only. However, the deferral of the debt to the Social Security Office and write-off of debt to the Office of the Marshall were not withdrawn. Poland’s arguments concerning these measures are set out below.

(25)

As regards the three measures classified in the opening decision as aid promised before accession to the EU (recitals (16)a) to (16)c) of this Decision), Poland provided documentary evidence to support its claim that the aid was awarded prior to accession and therefore did not constitute new aid.

(26)

With regard to the debt to Dębica City Council, Poland submitted a notarial deed confirming that the debt had been settled on 31 May 2004 by way of a transfer of property to Dębica City Council. The deed referred to the settlement of principal of PLN 1 116 788,60 and interest of PLN 592 669,80 (6).

(27)

Poland also explained that this measure had not been included in the first restructuring plan because the aid application submitted by PZL Dębica to Dębica City Council had been rejected.

(28)

With regard to the debt to the Tax Office of PLN 914 552,15, Poland submitted a decision dated 20 October 2003 on restructuring conditions signed by the Head of the local Tax Office. According to that decision PLN 636 729,85, plus interest of PLN 277 822,30, was to be written off.

(29)

Poland explained that the statement in the opening decision that this aid had been promised before accession but was not awarded was incorrect for a number of reasons.

(30)

First, Poland explained the aid award mechanism as provided for by the Restructuring of Businesses’ Public-Law Liabilities Act of 30 August 2002 (7) (‘the 2002 Act’). Under that Act, further to an application from a company in difficulty, an awarding authority (e.g. the Tax Office) can issue a decision on the restructuring conditions (‘restructuring decision’). This decision confers on the beneficiary the right to receive aid. The actual payment or write-off (depending on the measure) takes place on the basis of an implementing decision in which the awarding authority acknowledges that restructuring has been completed (‘implementing decision’). According to the Polish authorities, this implementing decision serves to confirm that the beneficiary (i) has submitted an updated restructuring programme together with information on the company’s financial condition, (ii) has paid a restructuring fee and (iii) has not accumulated new debts vis-à-vis the awarding authority. The implementing decision is merely an administrative document which confirms that the terms of the restructuring decision have been complied with. Under the 2002 Act, the awarding authority checks compliance with the restructuring conditions not earlier than 15 months after the restructuring decision is handed down.

(31)

Second, Poland informed the Commission that the Tax Office had not issued an implementing decision for PZL Dębica. According to Poland, this was due to uncertainty on the part of some public authorities on how to interpret the state aid rules applicable as of 1 May 2004. As a result, some authorities had decided to wait until the Commission had adopted a position on these measures. Poland has submitted a declaration by the Head of the Tax Office in question confirming that was the case for PZL Dębica.

(32)

Third, Poland indicated that the decision of the Tax Office of 20 October 2003 had conferred the right to the write-off on PZL Dębica. Poland referred to the Commission decision of 6 November 2008 concerning the Gdynia shipyard (8) in support of its claim that the domestic legal order must be applied to determine whether the document in question conferred the right to aid. Poland also referred to the legitimate expectations of the aid recipients and indicated that failure by the awarding authority to issue an implementing decision could be challenged by PZL Dębica in court. In that connection, Poland referred to rulings by the Supreme Court and the Supreme Administrative Court which confirmed that restructuring decisions placed an obligation on the state and that implementing decisions could not affect that obligation as they were mandatory i.e. not subject to administrative discretion (9).

(33)

In addition, Poland submitted a declaration by the Head of the local Tax Office confirming that PZL Dębica fulfilled the necessary legal requirements for the implementing decision (mentioned in recital (30)) to be issued, but stating that the Tax Office was awaiting the outcome of the Commission’s investigation.

(34)

The measure referred to in recital (16)c) is dealt with under Title 5 below - Deferral of debt to the Social Security Office.

(35)

The Polish authorities informed the Commission that all the de minims measures had been awarded to the company in 2006 when Commission Regulation (EC) No 69/2001 of 12 January 2001 on the application of Articles 87 and 88 of the EC Treaty to de minimis aid was in force (10) (Regulation (EC) No 1998/2006 did not enter into force until 1 January 2007); under Regulation (EC) No 69/2001 it was not prohibited to award de minimis aid to companies in financial difficulty.

(36)

Referring to the doubts raised by the Commission concerning the calculation mechanism, the Polish authorities explained the formula used to calculate the aid elements indicated in the Polish Regulation of 11 August 2004 (11). The formula takes into account the difference between the reference rate and the rate used to calculate the late payment charge An updated calculation of the de minimis aid element was provided (see Table 2).

Table 2

De minimis aid – according to Poland

(37)

Poland informed the Commission that only the Tax Office had provided security for the purposes of the deferral. This covered 100 % of the nominal value of the deferral. Poland also pointed out that even if 600 base points were added to the rate, in line with the Commission notice on the method for setting the reference and discount rates of 1997 (12), the value of the de minimis aid would still be far below the threshold of EUR 100 000.

(38)

As regards the deferral of debt in the form of social security liabilities, which increased in both restructuring plans, the Polish authorities recalled first that this debt increased as a consequence of the failure of the financial restructuring envisaged in the first restructuring plan. Under that plan the debt to the Social Security Office was to be settled in the form of: (i) repayment of PLN 3 890 000 using the loan from the Enterprise Restructuring Fund and (ii) deferral of a further PLN 1 364 600. As stated above (see recital (13)) financial restructuring of this debt failed.

(39)

In addition, the Polish authorities noted that the Social Security Office had decided to participate in the second restructuring plan, which provided for (i) repayment of PLN 5,5 million from a loan to be granted by the Industrial Development Agency and (ii) deferral of an additional PLN 3 million. As indicated above (see recital (5)) PZL Dębica did not obtain the promised loan and Poland withdrew the corresponding part of the notification.

(40)

Poland informed the Commission that PZL Dębica’s debt to the Social Security Office, like all funds owed to public authorities, had attracted interest calculated by the formula described in Article 56 of the Polish Tax Code of 29 August 1997 (13). The interest rate is equivalent to 200 % of the base rate published by the National Bank of Poland, plus 2 % (200 base points) (see Table 3 below). The rate may not be lower than 8 %; in the present case it was between 10 % and 46 %.

Table 3

Changes in interest rates from 2000 to 2012

(41)

Poland submitted detailed tables setting out changes in the debt to the Social Security Office. A summary of changes until 31 August 2012 is set out in Table 4. Poland indicated that in spite of the debt, which was mainly accumulated in 2000-05, the company made significant current payments to the Social Security Office, i.e. more than PLN 16 million between 2000 and August 2012.

Table 4

Changes in the debt to the Social Security Office

(42)

The Polish authorities also provided information on the other measures taken by the Social Security Office to secure and recover the debt.

Table 5

Sale of PZL Dębica’s assets

(43)

In October 2011, following the withdrawal of some of the notified measures i.e. the capital injection and preferential loan, Poland informed the Commission of its assessment that the deferral of social security debt (see recital (15)c) as part of the notified restructuring plan) passed the private creditor test and therefore did not constitute state aid.

(44)

For that purpose, a study was commissioned by PZL Dębica in 2011 from ‘Consulting’, an independent company based in Katowice. The report presented an analysis of the private creditor test based on a comparison between the following two scenarios:

(45)

In August 2012 Poland informed the Commission that a debt deferral agreement based on the private creditor test had been concluded between PZL Dębica and the Social Security Office on 1 March 2012. Poland explained that the Social Security Office had considered the advantages of each option with a view to maximising debt recovery. The agreement covers the amount owed on that day of PLN [7-13 million], comprising debt of PLN [3,5-6,5 million] and interest of PLN [3,5-6,5 million]. A deferral fee of PLN [1-1,7 million] was added to that amount. The deferral provides for repayment in 96 monthly instalments, of which 9 have already been paid. Poland submitted the following comparison of the options available to the Social Security Office in 2012 (Table 6).

Table 6

Comparison of recovery options for PZL Dębica’s debt to the Social Security Office (in PLN)

(46)

Poland has pointed out that the Social Security Office still holds a mortgage on the company’s assets worth a total of PLN 6 243 002,55. Under the agreement, any sale of assets automatically decreases the deferred amount, thereby enabling repayment to be made more quickly than in the 96 months provided for.

(47)

Poland confirmed to the Commission that the debt to the local Office of the Marshall referred to in the second restructuring plan had been settled on 14 August 2012. It comprised a debt of PLN 61 104,97 incurred between 1999 and 2001 and interest of PLN 103 566,29 which had accrued since then.

(48)

According to Article 107(1) of the Treaty, state aid is aid awarded by a Member State or through state resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods in so far as it affects trade between Member States.

(49)

The conditions laid down in Article 107(1) of the Treaty are cumulative and therefore for a measure to be qualified as state aid all the conditions must be fulfilled.

(50)

On the basis of the opening decision, the Commission will assess the following measures:

(51)

According to Article 8 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the Treaty (15), a Member State may withdraw the notification after the opening of the formal investigation procedure in due time before the Commission has taken a decision on the aid character of the notified measure and the procedure is closed accordingly.

(52)

The Polish authorities have withdrawn two of the measures to be implemented under the second restructuring plan, namely a capital injection and a preferential loan totalling PLN 10,5 million (see recitals (15)a) and (15)b)). Thus, pursuant to Article 8 of Council Regulation (EC) No 659/1999, the Commission’s investigation into these measures must be closed.

(53)

The aid measures that were awarded before and are not applicable after the accession of Poland to the EU cannot be examined by the Commission, either under the procedures laid down in Article 108 of the Treaty or under the interim mechanism. That mechanism neither requires nor empowers the Commission to review aid measures which are not applicable after accession.

(54)

Aid awarded by Poland is deemed to have been awarded before accession if the competent authority adopted a legally binding deed before 1 May 2004 by which it undertook to award the aid. Individual aid is not applicable after accession if the precise economic exposure of the state was known when the aid was awarded.

(55)

If, on the other hand, the measures were awarded after accession, they would constitute new aid and their compatibility would be assessed by the Commission under the procedure laid down in Article 108 of the Treaty.

(56)

In addition to two measures referred to in the opening decision as pre-accession measures (see recitals (12)a) and (12)b)) Poland claims that a write-off decision issued by the local Tax Office in 2003 covering an amount of PLN 914 522,15 should also be treated as pre-accession aid.

(57)

Responding to the concerns raised by the Commission in the opening decision in connection with the fact that no aid award document had been provided, Poland supplied an aid award document dated 20 October 2003 and clarified the mechanism for awarding aid under the 2002 Act (see recital (30)).

(58)

The Polish authorities have provided the Commission with an analysis of Polish law indicating that the restructuring decision of 2003 constitutes a legally binding document on the basis of which the Tax Office is obliged to write off tax arrears. A number of objectively verifiable conditions were attached to the restructuring decision (see recital (28)). The Polish authorities have confirmed that PZL Dębica complies with those conditions. In the absence of any indication to the contrary, the Commission therefore considers that the write-off was granted before Poland acceded to the EU.

(59)

In the course of the investigation Poland informed the Commission that PZL Dębica had settled the following debts:

(60)

Poland provided confirmation that these debts had been settled.

(61)

Poland informed the Commission that as part of restructuring negotiations with public creditors which led to the first restructuring plan being updated in October 2003, PZL Dębica had asked Dębica City Council to include in the restructuring plan an amount of PLN 1 116 788,60 which it owed to the Council. Dębica City Council refused and the company managed to settle the debt on 31 May 2004, one month after Poland acceded to the European Union.

(62)

The Commission notes that the debt had been subject to compound interest at a high rate ranging from 44 % to 13,5 % (see Table 3). The accumulated interest settled by PZL Dębica on 31 May 2004 amounted to PLN 592 669,80.

(63)

The recovery rate that would have been applied by the Commission to aid made available unlawfully to a company in Poland between 1 and 31 May 2004 was 7,62 % (16). That is a much lower rate than the interest rate applied to the debt by Poland.

(64)

On the basis that the debt was repaid in full and the interest rate of 13,5 % applied to the debt between 1 and 31 May 2004 was much higher than the recovery rate of 7,62 % applied by the Commission, the Commission concluded that recovery was completed in accordance with the Notice from the Commission ‘Towards an effective implementation of Commission decisions ordering Member States to recover unlawful and incompatible state aid’ (17) (‘the recovery notice’). The amount of interest actually repaid exceeds the amount of interest that would have had to be repaid in the event of a negative decision, calculated according to Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed rules for the application of Article 93 of the EC Treaty (18). The Commission therefore simply takes note of the settlement of the debt, without prejudice to the classification of this measure in the future for the application of the one-time-last-time principle.

(65)

The Commission notes that the local Office of the Marshall decided in 2007 to write off the debt, which was therefore included in the second restructuring plan. The restructuring plan was notified to the Commission.

(66)

At the same time, the Commission notes that the debt was subject to compound interest at a rate ranging from 46 % to 10 % (see Table 3). The total interest settled by PZL Dębica on 14 August 2012 amounted to PLN 103 566,29, nearly double the amount of the original debt of PLN 61 104,97.

(67)

The Commission considers that a de facto deferral took place between 1999 (when the first part of the debt was incurred) and 2012 (when the debt was repaid) and that the local Office of the Marshall thereby conferred an advantage on the company, already in serious financial difficulty, by mitigating the burden associated with normal business activities, which includes repayment of debts to public authorities.

(68)

The recovery rate that would have been applied by the Commission to aid unlawfully made available to a company in Poland after Poland’s accession to the EU until settlement of the debt was between 5,26 % and 7,62 % (19). That is a much lower rate than the interest rate actually applied to the debt by Poland.

(69)

On the basis that the debt was repaid in full and the interest rate of between 10 % and 16 % applied to PZL Dębica’s debt between 1 May 2004 and 14 August 2012 was much higher that the recovery rate applied by the Commission of between 5,26 % and 7,62 %, the Commission concludes that, irrespective of the legality of the aid, recovery was completed in compliance with the Commission’s recovery notice. The amount of interest actually paid exceeds the amount of interest that would have to be paid pursuant to Regulation (EC) No 794/2004.

(70)

Poland informed the Commission of five measures to a total value of PLN 20 873,65 which, it argued, should be treated as de minimis aid (listed in Table 2). These measures fall within the scope of application of Regulation (EC) No 69/2001.

(71)

The Commission acknowledges that Regulation (EC) No 69/2001, which allowed the award of up to EUR 100 000 (approx. PLN 400 000), did not explicitly exclude companies in difficulty. That said, the Regulation did specifically envisage that loans, which can be compared to deferrals, should be ‘backed by normal security and […] not involve abnormal risk’ (recital 6). In this case, the Commission takes the view that only the deferral of the Tax Office of 8 September 2006 complied with that requirement.

(72)

First, the Commission considers that Poland did not provide sufficient information to allow verification of the calculation mechanism of the de minimis aid and the amount of aid presented by Poland as the ‘amount of aid’ in Table 2. In particular, detailed information was not provided on the applicable reference rates and the rates used to calculate the late payment charge, which would have enabled the calculations made according to the formula applied by Poland to be checked (see recital (36)). Therefore the Commission considers the nominal amount of the three deferrals granted by the Mayor of Dębica on 7 April, 28 July and 5 October 2006, for which no security was provided, as the amount to be taken into consideration for de minimis purposes. An amount of PLN 264 186 was the subject of two deferral decisions by the Mayor of Dębica. Since these decisions concerned the same subject, the amount will be taken into consideration only once.

(73)

In case of the 7-day deferral granted by the Tax Office on 8 September 2006, for which security had been provided covering 100 % of the deferred amount of PLN 614 550, the Commission calculated the aid element by adding 400 base points to the applicable reference rate of 5,56 %, as provided for by the Commission notice on the method for setting the reference and discount rates of 1997 (20). The aid in this case amounts to PLN 1 126.

(74)

As for the write-off decision issued by the Mayor of Dębica on 5 October 2006, it amounts to a cash grant and should therefore be counted in full.

(75)

In the light of the above, the total value of the aid is PLN 369 788 (approx. EUR 93 437 (21)) (see Table 7). The total being less than EUR 100 000, these measures are covered by Regulation (EC) No 69/2001. Poland confirmed that PZL Dębica had not received any other de minimis aid.

Table 7

De minimis aid

(76)

Article 107(1) of the Treaty covers interventions in various forms which reduce a company’s normal costs and which, without being subsidies in the strict sense of the word, are similar in character and have the same effect. It is established case-law that the conduct of a public body with responsibility for collecting social security contributions which tolerates late payment of those contributions confers on an undertaking experiencing serious financial difficulty a commercial advantage by mitigating the burden associated with the normal application of the social security system which cannot be wholly removed by the interest and default surcharges applied to the late payment (22).

(77)

In this case the Social Security Office allowed PZL Dębica to accumulate significant amounts of debt in 2000-05. Changes in the total debt, including interest, are set out in Table 4.

(78)

As a preliminary remark the Commission points out that state aid to PZL Dębica may have been awarded by virtue of the failure to enforce in full PZL Dębica’s public debt to the Social Security Office (23).

(79)

Poland argues that the deferral of debt by the Social Security Office does not involve state aid as the Social Security Office acted like a private creditor when it agreed in March 2012 to a deferral of the total amount owed, which was to be paid in accordance with a repayment schedule in 96 instalments. Poland submitted an analysis of the private creditor test, carried out in October 2011 and confirming, in its view, that the Social Security Office would be better off deferring its claims on PZL Dębica rather than enforcing them. Poland also claims that the Social Security Office, which participated in both restructuring plans, always had ample information on PZL Dębica’s financial condition and prospects and that it always acted in full knowledge of the company’s position. Lastly, Poland referred to a number of actions undertaken by the Social Security Office to secure and enforce the debt. According to Poland, this confirms that the Social Security Office acted like a private creditor and sought to recover its claim.

(80)

Under established case-law, the conditions which a measure must meet in order to be treated as ‘aid’ for the purposes of Article 107 of the Treaty are not met if the recipient public undertaking could, in circumstances which correspond to normal market conditions, obtain the same advantage as that which has been made available to it through state resources. In the case of public undertakings, that assessment is made by applying, in principle, the private investor test (in this case, the private creditor test) (24). If a Member State relies on that test during the administrative procedure, it must, where there is doubt, establish unequivocally and on the basis of objective and verifiable evidence that the measure does indeed pass that test (25). With a view to establishing whether an advantage was granted that could be classified as state aid within the meaning of Article 107(1) of the Treaty, Poland must therefore provide evidence demonstrating that the public authorities acted in the same way as a hypothetical private creditor, who would not tolerate non-payment and would take effective action to enforce the debt even if this resulted in insolvency proceedings.

(81)

The hypothetical private creditor would closely monitor the economic situation of the debtor; the lack of a restructuring plan and poor prospects for a return to viability would hasten debt recovery.

(82)

It follows that in order to determine whether any state aid was awarded by the public authorities, it must be established that in this case the Social Security Office sought to recover all the monies owed to it without incurring financial losses and that by deciding not to file for the company’s bankruptcy the Social Security Office intended to maximise recovery of the amounts owed to it as the hypothetical private creditor would (26).

(83)

The Commission will analyse the report submitted by Poland on the decision taken in 2012 to sign the deferral agreement. However, the Commission notes that the Social Security Office had allowed debt to accumulate for a number of years. Indeed, the information provided by Poland relates to the entire period from the end of the first restructuring period (and even before) to the commissioning of the study in October 2011 with a view to concluding a deferral agreement. In view of the notification in 2008 of a second restructuring plan, the company did not actively seek an agreement with its creditors. The Commission must therefore also check that the behaviour of the Social Security Office between the end of the first restructuring period and the signing of the deferral agreement passes the private creditor test.

(84)

In the following recitals the Commission will refer to (i) the Social Security Office’s involvement in the first restructuring plan, (ii) partial enforcement of the debt by the Social Security Office between 2007 and 2012 following the failure of the first restructuring plan, and (iii) the deferral agreement of 1 March 2012. The first restructuring plan was approved by the competent national authority before Poland acceded to the EU and mainly covers the pre-accession period. The assessment of points (ii) and (iii) is decisive for the conclusion concerning the behaviour of the Social Security Office. The Commission’s assessment will nevertheless focus again on changes in PZL Dębica’s situation under the first restructuring plan, as it is vital to understand how this situation evolved.

(85)

As mentioned above, the Social Security Office decided to participate in the first restructuring plan prepared and approved in 2002, i.e. before Poland acceded to the EU. The plan included restructuring of financial debt to the Social Security Office. On the basis of that restructuring plan, the Social Security Office agreed to defer PLN 1 364 600 in debt, while a larger amount of PLN 3 890 000 was to be settled by way of a loan from the Enterprise Restructuring Fund. As explained above (see recital (13)) PZL Dębica did not receive financing from the Fund. Consequently the Social Security Office decided not to defer the remaining part of the debt and in 2006 it threatened to institute proceedings to have the company declared bankrupt.

(86)

The Commission notes that despite the failure of the financial restructuring and the financial arrears at the end of the first restructuring period, PZL Dębica managed to record a modest profit in 2006 (see Table 1). This confirms that the company’s organisational and technological restructuring efforts had borne fruit.

(87)

In addition, from 2001 onwards the Social Security Office established security on a number of PZL Dębica’s assets to cover the growing debt. The value of the mortgage reached PLN 11,6 million in 2007, covering 100 % of the debt.

(88)

Lastly, the Commission notes that as of 2003 the Social Security Office began enforcing the debt through the sale of PZL Dębica’s assets (as illustrated in Table 5). The Social Security Office decided, however, not to proceed with a fire sale, which usually generates lower amounts than would normally be the case. Indeed, in the context of reduced demand for industrial assets as a result of the current economic climate, this phenomenon could only be exacerbated. Instead, the Social Security Office agreed to a controlled sale organised by the company. The Social Security Office had to consent to the sale on the basis of an offer from a third party and the net profit from the sale was then transferred to the Social Security Office. The evidence provided by Poland leads to the conclusion that although the sale conducted by PZL Dębica generated market values, the sales process was slower than a fire sale. Between 2004 and 2006 the Social Security Office recovered over PLN 1,6 million through the controlled sale of PZL Dębica’s assets.

(89)

The failure of financial restructuring in the first restructuring plan and the mounting debt of PZL Dębica resulted in the Social Security Office giving serious consideration to the bankruptcy scenario at the end of 2006. As explained above (see recital (42)c)) on 20 November 2006 the Social Security Office informed the company of its intention to file for the bankruptcy of PZL Dębica. Following the information provided to the Social Security Office by PZL Dębica on 12 December 2006, that threat was not carried out. The Commission has assessed whether the Social Security Office acted like a hypothetical private creditor between 2007 (when the first restructuring period ended) and 2012 (when the deferral agreement was concluded).

(90)

The Commission first assessed the information provided by PZL Dębica to the Social Security Office on 12 December 2006. The company put forward a thorough analysis of its economic and financial situation and details of its future prospects. The Commission notes that the following points presented by the company to the Social Security Office would be important for a hypothetical private creditor to assess the debtor’s situation and determine the appropriate course of action in order to maximise recovery of the debts, and would therefore be monitored by the creditor:

(91)

The Commission notes that on the basis of the comprehensive information set out above indicating a growth path for PZL Dębica and tangible revenue for the Social Security Office, it was reasonable to assume that more would be recovered by allowing the company to continue to operate than by forcing it into liquidation. That said, the Commission notes that, as a matter of prudence, the Social Security Office did not agree to suspend enforcement proceedings which, according to PZL Dębica, were stifling the restructuring process. The Social Security Office therefore acted like a private creditor, which would choose the course of action that would allow it to maximise recovery of the debt.

(92)

The Commission notes that in 2008 the Social Security Office adhered to the second restructuring plan and thereby signed up to deferral of part of the debt. The remainder of the debt was to be settled as a result of an injection of funds by the state-owned Industrial Development Agency. However, the standstill obligation was respected and the measures were not implemented. The Commission notes that the Social Security Office did not rely on implementation of the second restructuring plan as a solution to the outstanding debt, but continued with the course of action embarked upon in 2007, as described above.

(93)

In 2007 and 2008 thanks to the controlled sale of PZL Dębica’s assets, in addition to the monies referred to in recital (88), the Social Security Office recovered over PLN 5,4 million (see Table 5). According to Poland, the lack of sales of company assets after 2008, despite the fact that the Social Security Office held a mortgage on three real estate properties worth more than PLN 6 million in total, must be seen in the economic context in which the sale of PZL Dębica’s assets took place. Poland claimed that the economic crisis and reduced scale of business activity in the region had contributed to a lack of interest in PZL Dębica’s assets and had made it difficult to sell them at a price considered acceptable by the Social Security Office.

(94)

On the other hand, as noted above, the Social Security Office had maintained the seizure of PZL Dębica’s account, which brought it a further PLN 475 369 between 2007 and 2010.

(95)

Indeed, ongoing enforcement brought the Social Security Office more than PLN 7 million in the period under review (see recital (96)b)); the fact that the debt recovery process took longer was addressed by the compound interest applied to the debt.

(96)

The Commission also analysed whether between 2007 and 2012 PZL Dębica had respected the pledges made when the Social Security Office decided in January 2007 not to institute insolvency proceedings against it. The Commission notes that:

(97)

The Commission concludes that PZL Dębica’s return to profitability in 2006, the good prospects for long-term viability and ongoing fulfilment of its current financial obligations since 2006, as well as the entry of the private investor in 2010, are important factors which a private creditor would take into account when deciding whether the course of action adopted in 2007 continued to be the best way to maximise recovery.

(98)

Poland submitted an analysis of the private creditor test conducted by an external consultant in October 2011, i.e. prior to the deferral transaction of 1 March 2012. The report compares two options: (i) enforcement of all financial claims by the Social Security Office and (ii) settlement of debts to the Social Security Office by way of deferral of the total amount owed. The test concludes that the Social Security Office should opt for deferral, which guarantees recovery of the full amount of the debt, whereas the liquidation scenario would lead to recovery of some 60 %-70 % of the debt.

(99)

The Commission has critically analysed the report and the assumptions made therein.

(100)

First, the Commission notes that the test conclusions are based on the analysis of (i) PZL Dębica’s actual economic and financial situation, (ii) the company’s assets and all its liabilities, (iii) the company’s market position, (iv) the results of restructuring and (v) the legal rules and practice applicable to insolvency proceedings in Poland.

(101)

In the liquidation scenario, the Social Security Office would be able to recover only about 60 % to 70 % of the debt in 3 or 4 years (27). The reduction in the amount that it is possible to recover results mainly from the high costs of liquidation and the low liquidation value of the company’s assets. As regards the liquidation value, the Commission notes that in the bankruptcy scenario the value of these assets in a fire sale is reduced by about 50 % due to the fact that they will be sold separately and will not be used as a going concern. The figure is also affected by reduced demand for industrial assets in the context of crisis in the real economy, but remains above the average revenue from sales of assets in bankruptcy in Poland, which is 26,86 % of their fair value.

(102)

In the deferral scenario described in recital (44), the report considers the following elements to be important from the perspective of a private creditor seeking to maximise the recovery of the amounts owed to him:

(103)

The Commission cannot agree to take the final element into account as the compulsory future payments cannot be compared to the revenue a private company could expect from an economic activity. Indeed, collecting compulsory social payments is not an economic activity.

(104)

The Commission notes that the signed agreement provides for the recovery of the full amount of the debt due on 1 March 2012 i.e. PLN [7-13 million], comprising debt of PLN [3,5-6,5 million] and interest of PLN [3,5-6,5 million]. A deferral fee of PLN [1-1,7 million] was added on top of that amount. The debt is to be repaid in 96 monthly instalments.

(105)

The Commission also notes that the Social Security Office maintained a pledge on PZL Dębica’s assets of PLN 6 243 002,55, which the Social Security Office intends to sell in a similar controlled procedure as in the case of the previous assets. Any income from the sale of these assets would be used to reduce PZL Dębica’s debt to the Social Security Office.

(106)

The Commission also notes that the report does not contain a comparison of the present values of inflows in Option 1 and Option 2, which would allow the private creditor to determine which of the two options is more beneficial. The Commission calculated these present values for several discount rates, using conservative assumptions, i.e. 3 years in the case of the company’s liquidation and 8 years in the case of deferral. Future gains by the Social Security Office originating from current payments were not included in the Commission’s calculation. For all meaningful discount rates a private investor is better off under the deferral scenario than in the case of liquidation.

(107)

Lastly, the Commission also notes that until November 2012 PZL Dębica paid the nine instalments provided for by the deferral on time.

(108)

On that basis, the Commission considers that by agreeing to the deferral in March 2012, the Social Security Office behaved like a private creditor seeking to obtain the payment of sums owed to it by a debtor in financial difficulty. Therefore, the public creditor did not confer an advantage on PZL Dębica. Accordingly, settlement of the outstanding debt on the basis of the deferral laid down in the agreement signed between the company and the Social Security Office in March 2012 does not constitute state aid within the meaning of Article 107(1) of the Treaty.

(109)

The Commission considers the aid measures referred to in recital (52) as having been withdrawn. Thus, pursuant to Article 8 of Regulation (EC) No 659/1999, the Commission’s investigation into these measures must be closed.

(110)

The Commission considers the aid measures referred to in recital (56) as having been granted before Poland acceded to the EU and not applicable after that date. They may not be investigated by the Commission under the procedure laid down in Article 108 of the Treaty or under the interim mechanism.

(111)

As regards the measures referred to in recital (59), the Commission notes that any aid made available unlawfully would be considered to have been recovered in accordance with the recovery notice.

(112)

The aid measures referred to in Table 7 fall within the scope of application of Regulation (EC) No 69/2001 and do not exceed the threshold laid down in that Regulation.

(113)

Lastly, the Commission considers that the measure referred to in recitals (76) to (108) does not constitute aid within the meaning of Article 107(1) of the Treaty,

a)

two measures amounting to PLN 4 965 800 and PLN 5 534 200, which Poland notified on 13 August 2008 and withdrew on 10 October 2011 pursuant to Article 8 of the Procedural Regulation;

b)

a measure amounting to PLN 914 522,15 with regard to which a decision of the Tax Office was issued on 20 October 2003, on the basis that it was granted before Poland acceded to the EU and is not applicable after that date;

c)

a measure with a nominal value of PLN 61 104,97, plus interest of PLN 103 566,29, settled on 14 August 2012, constituting unlawful aid pursuant to Article 7(5) of Regulation (EC) No 659/1999. The aid was recovered on 14 August 2012 by Poland in line with the recovery notice (28);

d)

the five measures for PZL Dębica listed in Table 7, on the grounds that they were de minimis aid within the meaning of Article 2 of Regulation (EC) No 69/2001;

e)

the deferral of PLN [7-13 million] awarded to PZL Dębica on the basis of the deferral agreement of 1 March 2012 with the Social Security Office, pursuant to Article 7(2) of Regulation (EC) No 659/1999, on the grounds that the measure does not constitute aid within the meaning of Article 107(1) of the Treaty.

19.6.2013   

EN

Official Journal of the European Union

L 167/57

(1)

Commission Decision 2006/799/EC of 3 November 2006 establishing revised ecological criteria and the related assessment and verification requirements for the award of the Community eco-label to soil improvers (2) expires on 31 December 2013.

(2)

Commission Decision 2007/64/EC of 15 December 2006 establishing revised ecological criteria and the related assessment and verification requirements for the award of the Community eco-label to growing media (3) expires on 31 December 2013.

(3)

Commission Decision 2009/300/EC of 12 March 2009 establishing the revised ecological criteria for the award of the Community Eco-label to televisions (4) expires on 31 October 2013.

(4)

Commission Decision 2009/543/EC of 13 August 2008 establishing the ecological criteria for the award of the Community eco-label to outdoor paints and varnishes (5) expires on 30 June 2013.

(5)

Commission Decision 2009/544/EC of 13 August 2008 establishing the ecological criteria for the award of the Community eco-label to indoor paints and varnishes (6) expires on 30 June 2013.

(6)

Commission Decision 2009/563/EC of 9 July 2009 on establishing the ecological criteria for the award of the Community eco-label for footwear (7) expires on 10 July 2013.

(7)

Commission Decision 2009/564/EC of 9 July 2009 establishing the ecological criteria for the award of the Community eco-label for campsite services (8) expires on 10 July 2013.

(8)

Commission Decision 2009/567/EC of 9 July 2009 establishing the ecological criteria for the award of the Community Ecolabel for textile products (9) expires on 10 July 2013.

(9)

Commission Decision 2009/568/EC of 9 July 2009 establishing the ecological criteria for the award of the Community Eco-label for tissue paper (10) expires on 10 July 2013.

(10)

Commission Decision 2009/578/EC of 9 July 2009 establishing the ecological criteria for the award of the Community eco-label for tourist accommodation service (11) expires on 10 July 2013.

(11)

Commission Decision 2009/598/EC of 9 July 2009 establishing the ecological criteria for the award of the Community Ecolabel for bed mattresses (12) expires on 10 July 2013.

(12)

Commission Decision 2009/607/EC of 9 July 2009 establishing the ecological criteria for the award of the Community eco-label to hard coverings (13) expires on 10 July 2013.

(13)

Commission Decision 2009/894/EC of 30 November 2009 on establishing the ecological criteria for the award of the Community eco-label for wooden furniture (14) expires on 1 December 2013.

(14)

Commission Decision 2009/967/EC of 30 November 2009 on establishing the ecological criteria for the award of the Community Ecolabel for textile floor coverings (15) expires on 1 December 2013.

(15)

Commission Decision 2010/18/EC of 26 November 2009 on establishing the ecological criteria for the award of the Community Ecolabel for wooden floor coverings (16) expires on 27 November 2013.

(16)

Commission Decision 2011/331/EU of 6 June 2011 on establishing the ecological criteria for the award of the EU Ecolabel for light sources (17) expires on 6 June 2013.

(17)

An assessment has been carried out to evaluate the relevance and appropriateness of the current ecological criteria, as well as of the related assessment and verification requirements, established by those Decisions. Given the different stages of the revision process for those Decisions, it is appropriate to prolong the periods of validity of the ecological criteria and the related assessment and verification requirements which they set out. The period of validity of the ecological criteria and the related assessment and verification requirements set out in Decisions 2009/567/EC, 2009/543/EC, 2009/544/EC and 2009/598/EC should be prolonged until 30 June 2014. The period of validity of the ecological criteria and the related assessment and verification requirements set out in Decisions 2009/300/EC should be prolonged until 31 October 2014. The period of validity of the ecological criteria and the related assessment and verification requirements set out in Decisions 2006/799/EC, 2007/64/EC, 2009/894/EC and 2011/331/EU should be prolonged until 31 December 2014. The period of validity of the ecological criteria and the related assessment and verification requirements set out in Decisions 2009/563/EC and 2009/568/EC should be prolonged until 30 June 2015. The period of validity of the ecological criteria and the related assessment and verification requirements set out in Decisions 2009/564/EC and 2009/578/EC should be prolonged until 30 November 2015. The period of validity of the ecological criteria and the related assessment and verification requirements set out in Decisions 2009/967/EC and 2010/18/EC should be prolonged until 31 December 2015 and the period of validity of the ecological criteria and the related assessment and verification requirements set out in Decisions 2009/607/EC should be prolonged until 30 November 2017.

(18)

Decisions 2006/799/EC, 2007/64/EC, 2009/300/EC, 2009/543/EC, 2009/544/EC, 2009/563/EC, 2009/564/EC, 2009/567/EC, 2009/568/EC, 2009/578/EC, 2009/598/EC, 2009/607/EC, 2009/894/EC, 2009/967/EC, 2010/18/EC and 2011/331/EU should therefore be amended accordingly.

(19)

The measures provided for in this Decision are in accordance with the opinion of the Committee set up by Article 16 of Regulation (EC) No 66/2010,

19.6.2013   

EN

Official Journal of the European Union

L 167/s3