Official Journal C 24 of the European Union
Volume 64 English edition Information and Notices 22 January 2021
Contents
I Resolutions, recommendations and opinions
RECOMMENDATIONS
Council
2021/C 24/01 Council Recommendation on a common framework for the use and validation of rapid antigen tests and the mutual recognition of COVID-19 test results in the EU ...... 1
II Information
INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
European Commission
2021/C 24/02 Non-opposition to a notified concentration (Case M.9984 — CIMIC/Elliott/Thiess) (1) ...... 6
2021/C 24/03 Non-opposition to a notified concentration (Case M.9911 — Voith/PCSH/TSA) (1) ...... 7
2021/C 24/04 Non-opposition to a notified concentration (Case M.10034 — Pizarreño/Maderas Arauco/E2E JV) (1) . . . . . 8
2021/C 24/05 Non-opposition to a notified concentration (Case M.9892 — Leonardo/Thales/VSB) (1) ...... 9
EN (1) Text with EEA relevance. IV Notices
NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
European Commission
2021/C 24/06 Euro exchange rates — 21 January 2021 ...... 10
2021/C 24/07 Opinion of the Advisory Committee on restrictive agreements and dominant positions at its meeting on 10 July 2020 concerning a draft decision relating to Case AT.40410 – Ethylene – Rapporteur: Czech Republic ...... 11
2021/C 24/08 Final Report of the Hearing Officer (Case AT.40410 – Ethylene) ...... 13
2021/C 24/09 Summary of Commission Decision of 14 July 2020 relating to a proceeding under Article 101 of the Treaty on the functioning of the European Union (Case AT.40410 – Ethylene) (notified under document number C(2020) 4817 final) ...... 14
2021/C 24/10 Opinion of the Advisory Committee on mergers at its meeting of 27 May 2019 concerning a preliminary draft decision relating to Case M.8713 – Tata Steel/ThyssenKrupp/JV – Rapporteur: Bulgaria (1) ...... 19
2021/C 24/11 Final Report of the Hearing Officer (Case M.8713 – Tata Steel/ThyssenKrupp/JV) (1) ...... 21
2021/C 24/12 Summary of Commission Decision of 11 June 2019 declaring a concentration incompatible with the internal market and the functioning of the EEA Agreement (Case M.8713 – Tata Steel/ThyssenKrupp/JV) (notified under document number C(2019) 4228) (1) ...... 23
2021/C 24/13 Information from the Commission pursuant to Council Decision (EU) 2020/1421 ...... 30
Court of Auditors
2021/C 24/14 Special Report No 2/2021 – EU humanitarian aid for education: helps children in need, but should be longer-term and reach more girls ...... 31
V Announcements
PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY
European Commission
2021/C 24/15 Prior notification of a concentration (Case M.10105 — FSN Capital/Obton Invest/Obton Group) – Candidate case for simplified procedure (1) ...... 32
2021/C 24/16 Prior notification of a concentration (Case M.10131 — Partners Group/Warburg Pincus/Ecom Express Private) – Candidate case for simplified procedure (1) ...... 34
2021/C 24/17 Prior notification of a concentration (Case M. 10117 — A.P. Moller/APMH Invest/Faerch Group) – Candidate case for simplified procedure (1) ...... 36
(1) Text with EEA relevance. OTHER ACTS
European Commission
2021/C 24/18 Publication of a communication of approval of a standard amendment to a product specification for a name in the wine sector referred to in Article 17(2) and (3) of Commission Delegated Regulation (EU) 2019/33 ...... 38
2021/C 24/19 Notice to undertakings intending to place hydrofluorocarbons in bulk on the market in the European Union in 2022 ...... 46
2021/C 24/20 Information notice — Public consultation – Geographical indications proposed by Indonesia to be protected in the EU ...... 48
22.1.2021 EN Offi cial Jour nal of the European Uni on C 24/1
I
(Resolutions, recommendations and opinions)
RECOMMENDATIONS
COUNCIL
COUNCIL RECOMMENDATION on a common framework for the use and validation of rapid antigen tests and the mutual recognition of COVID-19 test results in the EU
(2021/C 24/01)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 168(6) thereof,
Having regard to the proposal from the European Commission,
Whereas:
(1) In line with Article 168(1) and (2), a high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities. Union action shall cover, amongst other, monitoring, early warning of and combating serious cross-border threats to health, and shall encourage cooperation between the Member States in this area and, if necessary, lend support to their action.
(2) In line with Article 168(7) of the Treaty on the Functioning of the European Union, Union action shall respect the responsibilities of the Member States for the definition of their health policy and for the organisation and delivery of health services and medical care. EU Member States are thus responsible for deciding on the development and implementation of COVID-19 testing strategies, including the use of rapid antigen tests, taking into consideration countries’ epidemiological and social situations as well as the target population for testing.
(3) On 15 April, the Commission adopted Guidelines on COVID-19 in vitro diagnostic tests and their performance (1), providing considerations on test performance and recommending that COVID-19 tests be validated prior to introducing them into the clinical routine.
(4) On 15 July, the Commission adopted a Communication on short-term EU health preparedness for COVID-19 outbreaks (2), which, among other measures to reinforce preparedness and coordinated response capacities, identified testing as one of the main action areas to be addressed by Member States, and which set out specific key measures to be taken in the next months.
(5) On 28 October, the Commission adopted a Recommendation on COVID-19 testing strategies, including the use of rapid antigen tests (3). The Recommendation set out guidance for countries regarding key elements to be considered for their COVID-19 testing strategies, and considerations for the use of rapid antigen tests were also put forward.
(1) OJ C 122 I, 15.4.2020, p. 1. (2) COM(2020) 318 final (3) OJ L 360, 30.10.2020, p. 43. C 24/2 EN Offi cial Jour nal of the European Union 22.1.2021
(6) On 18 November, the Commission adopted a Recommendation on the use of rapid antigen tests for the diagnosis of SARS-CoV-2 infection (4), further specifying the criteria to be used for the selection of rapid antigen tests, the settings during which rapid antigen tests are appropriate to be used, test operators, validation and mutual recognition of rapid antigen tests and their results. While cheaper and faster, rapid antigen tests have generally a lower test sensitivity than RT-PCR.
(7) The currently applicable regulatory framework for placing rapid antigen tests on the market is Directive 98/79/EC (5). According to the Directive, for SARS-CoV-2 rapid antigen tests, the manufacturer must draw up a technical file which explicitly shows that the test is safe and performs as intended by the manufacturer, by demonstrating compliance with the requirements laid down in Annex I of the Directive.
(8) From 26 May 2022, Directive 98/79/EC will be replaced by Regulation (EU) 2017/746 on in vitro diagnostic medical devices (6). Under the Regulation, rapid antigen tests will be subject to reinforced requirements on device performance and a thorough assessment by a notified body. This may reduce the additional effort required for the validation of these tests prior to their use as part of national strategies.
(9) Effective testing contributes to the smooth functioning of the Internal Market as it allows for targeted isolation or quarantine measures. Mutual recognition of test results for SARS-CoV-2 infection carried out in other Member States by certified health bodies, as provided for in point 18 of Council Recommendation (EU) 2020/1475 (7), is essential in order to facilitate cross-border movement, cross-border contact tracing and treatment.
(10) Given the requirement for EU candidate countries and EU potential candidate countries as well as for countries that have concluded with the EU agreements establishing a deep and comprehensive free trade area (DCFTA countries) to align to the EU acquis where applicable, and the participation of some of these countries in EU joint procurement for relevant products, this proposal for a Council Recommendation may also be of interest to these countries.
HAS ADOPTED THIS RECOMMENDATION:
Use of rapid antigen tests
Without prejudice to the responsibilities of the Member States for defining their national testing policies, Member States should:
1. Continue using rapid antigen tests as a way of further strengthening countries’ overall testing capacity, particularly because testing remains a key pillar in controlling and mitigating the ongoing COVID-19 pandemic, as it allows for adequate and swift contact tracing and the implementation of prompt and targeted isolation and quarantine measures.
2. Primarily consider the use of rapid antigen tests in case of limited nucleic acid amplification test (NAAT) capacities, particularly RT-PCR assays, or where prolonged testing turnaround times results in no clinical utility, which would hinder the swift identification of infected cases and reduce the impact of contact-tracing efforts.
3. Ensure that rapid antigen testing is conducted by trained healthcare personnel or other trained operators where appropriate and in line with national specifications, as well as in strict accordance with manufacturer’s instructions and subject to quality control. Should research prove that rapid antigen tests can be conducted by the testee themselves under certain circumstances, instead of by a trained healthcare professional or other trained operator, self- testing with or without professional guidance could also be considered.
(4) OJ L 392, 23.11.2020, p. 63. (5) OJ L 331, 7.12.1998, p. 1. (6) OJ L 117, 5.5.2017, p. 176. The Regulation provides for a transition period starting on the date of its entry into force (May 2017) during which the conformity of in vitro diagnostic medical devices can be assessed either under the Regulation or under Directive 98/79/EC. (7) OJ L 337, 14.10.2020, p. 3. 22.1.2021 EN Offi cial Jour nal of the European Uni on C 24/3
4. Invest in training and, if appropriate, certification of healthcare personnel and other operators to carry out sampling and testing, thereby ensuring adequate capacities as well as safeguarding the collection of good quality samples.
5. Ensure that the results of rapid antigen testing are registered in the respective national data collection and reporting systems, where feasible.
6. Consider, in particular, the use of rapid antigen tests in the following situations and settings:
(a) COVID-19 diagnosis among symptomatic cases, regardless of the setting or situation. Rapid antigen tests should be used within the first 5 days following symptom onset, when viral load is highest. Patients admitted to hospitals or residents admitted to social-care settings who are showing COVID-19 compatible symptoms, should preferably be tested upon admission.
(b) Contacts of confirmed cases: rapid antigen testing of asymptomatic contacts should be done as soon as possible and within the first 7 days after contact, in line with applicable guidance.
(c) Outbreak clusters, for early detection and isolation of cases. The screening of both symptomatic and asymptomatic cases in this context is relevant.
(d) Screening in high-risk areas and closed settings, such as hospitals, other healthcare settings, long-term care facilities such as retirement and nursing homes or residential settings for persons with disabilities, schools, prisons, detention centres or other reception infrastructures for asylum seekers and migrants, and for homeless populations. In case of repeated screening, this should be carried out every 2-4 days where possible, and at least the first positive result identified by rapid antigen testing should be confirmed by RT-PCR.
(e) In epidemiological situations or areas where the proportion of test positivity is high or very high (e.g. > 10%), rapid antigen tests can be used in line with national competences for population-wide screening, taking into consideration and putting in place an adequate evaluation scheme to measure impact. This requires organising specific testing intervals for repetition. ECDC will support Member States in this context through the publication of updated guidance on COVID-19 testing, which will discuss the advantages and challenges of population-wide testing and the use of rapid antigen tests in this context.
7. Ensure that strategies are put in place that clarify when confirmatory testing by RT-PCR or a second rapid antigen test is required, as specified in the Commission Recommendation of 18 November 2020, and that sufficient capacities for confirmatory testing are available.
8. Ensure that the appropriate biosafety measures are in place, which includes the availability of sufficient personal protective equipment for healthcare personnel and other trained operators involved in specimen collection, particularly when rapid antigen tests are used in the context of population-wide screening and the number of testing operators involved is significant.
9. Continue to monitor developments related to other rapid nucleic acid-based tests to detect SARS-CoV-2 infection (8), as well as the establishment of serological-based diagnostic tests and multiplex techniques. If required, adapt testing strategies and approaches regarding the use of rapid antigen tests accordingly. In addition, developments concerning the possibility of self-sampling for rapid antigen testing, for example to address shortages in testing capacities and resources for sampling by trained operators, should be carefully monitored and addressed with support of ECDC.
10. Continue to monitor and assess testing needs in line with epidemiological developments and the objectives defined in nationally, regional and local testing strategies, and ensure that corresponding resources and capacities are in place to keep up with demands.
(8) For example: RT-LAMP (reverse transcription loop-mediated isothermal amplification), TMA (Transcription Mediated Amplification) and CRISPR (clustered regularly interspaced short palindromic repeats). C 24/4 EN Offi cial Jour nal of the European Union 22.1.2021
Validation and mutual recognition of rapid antigen tests and RT-PCR tests
Member States should:
11. Without prejudice to Directive 98/79/EC, agree on, maintain and share with the ECDC and the Commission (9), a common and updated list of COVID-19 rapid antigen tests that are considered appropriate for use in the context of the situations described under point 6 and are in line with countries’ testing strategies, and that:
(a) Carry CE marking;
(b) Meet the minimum performance requirements of ≥ 90% sensitivity and ≥ 97% specificity.
(c) Have been validated by at least one Member State as being appropriate for their use in the context of COVID-19, providing details on the methodology and results of such studies, such as the sample type used for validation, the setting in which the use of the test was assessed, and whether any difficulties occurred as regards the required sensitivity criteria or other performance elements.
12. Agree that the rapid antigen tests included in the common list referred to under point 11 is updated on a regular basis, particularly as new results from independent validation studies will become available and new tests will enter the markets. Future updates to the list should also take into account how mutations of the SARS-CoV-2 virus may affect the efficacy of any particular rapid antigen tests, allowing for the removal of tests no longer deemed effective. The effect of mutations of the SARS-CoV-2 virus on the efficacy of RT-PCR tests should also be kept under review.
13. Continue to invest in conducting independent and setting-specific validation studies of rapid antigen tests, with the aim to assess their performance against NAAT, particularly RT-PCR assays. Member States should agree on a framework for such validation studies, for example by detailing the methods to be used and defining the priority areas and settings in which validation studies are required. Such a framework should meet the requirements as described in the ECDC technical guidance on rapid antigen tests (10). Member States should ensure that full validation data sets are shared where possible, taking into account the relevant general data protection legislation.
14. Continue to cooperate at EU level in assessing the evidence gathered from the use of rapid antigen tests in clinical practice, including through the Joint Action EUnetHTA and other potential future cooperation mechanisms.
15. Agree on a selection of rapid antigen tests of which they will mutually recognise the test results for public health measures, based on the information included in the common list referred to under point 11.
16. Consider, whenever the list referred to under point 11 is being updated, whether any rapid antigen test should be removed from or added to the selection of rapid antigen tests of which their results are being mutually recognised.
17. Mutually recognise the results of RT-PCR tests for COVID-19 infection carried out in other Member States by certified health bodies.
18. In order to facilitate in practice the mutual recognition of results of rapid antigen tests and RT-PCR tests, as provided for in point 18 of Council Recommendation 2020/1475, agree on a common standardised set of data to be included in the form for test result certificates.
19. Explore the need and possibility, including time and cost considerations, for the creation of a digital platform, that can be used to validate the authenticity of standardised COVID-19 test certificates (for both rapid antigen tests and RT-PCR tests) and share the outcomes of such discussions with the Commission.
(9) Commission database: JRC COVID-19 In Vitro Diagnostic Devices and Test Methods (10) Options for the use of rapid antigen tests for COVID-19 in the EU/EEA and the UK. Stockholm 19 November 2020. ECDC: Stockholm; 2020. 22.1.2021 EN Offi cial Jour nal of the European Uni on C 24/5
Done at Brussels, 21 January 2021.
For the Council The President Ana Paula ZACARIAS C 24/6 EN Offi cial Jour nal of the European Union 22.1.2021
II
(Information)
INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
EUROPEAN COMMISSION
Non-opposition to a notified concentration (Case M.9984 — CIMIC/Elliott/Thiess)
(Text with EEA relevance)
(2021/C 24/02)
On 27 November 2020, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available: — in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, — in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32020M9984. EUR-Lex is the on-line access to European law.
(1) OJ L 24, 29.1.2004, p. 1. 22.1.2021 EN Offi cial Jour nal of the European Uni on C 24/7
Non-opposition to a notified concentration (Case M.9911 — Voith/PCSH/TSA)
(Text with EEA relevance)
(2021/C 24/03)
On 19 November 2020, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No. 139/2004 (1). The full text of the decision is available only in German language and will be made public after it is cleared of any business secrets it may contain. It will be available: — in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, — in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32020M9911. EUR-Lex is the on-line access to the European law.
(1) OJ L 24, 29.1.2004, p. 1. C 24/8 EN Offi cial Jour nal of the European Union 22.1.2021
Non-opposition to a notified concentration (Case M.10034 — Pizarreño/Maderas Arauco/E2E JV)
(Text with EEA relevance)
(2021/C 24/04)
On 18 January 2021, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available: — in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, — in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32021M10034. EUR-Lex is the on-line access to European law.
(1) OJ L 24, 29.1.2004, p. 1. 22.1.2021 EN Offi cial Jour nal of the European Uni on C 24/9
Non-opposition to a notified concentration (Case M.9892 — Leonardo/Thales/VSB)
(Text with EEA relevance)
(2021/C 24/05)
On 2 December 2020, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available: — in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, — in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32020M9892. EUR-Lex is the on-line access to European law.
(1) OJ L 24, 29.1.2004, p. 1. C 24/10 EN Offi cial Jour nal of the European Union 22.1.2021
IV
(Notices)
NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES
EUROPEAN COMMISSION
Euro exchange rates (1) 21 January 2021
(2021/C 24/06)
1 euro =
Currency Exchange rate Currency Exchange rate
USD US dollar 1,2158 CAD Canadian dollar 1,5345 JPY Japanese yen 125,72 HKD Hong Kong dollar 9,4245 DKK Danish krone 7,4395 NZD New Zealand dollar 1,6853 GBP Pound sterling 0,88625 SGD Singapore dollar 1,6081 KRW South Korean won 1 337,11 SEK Swedish krona 10,0825 ZAR South African rand 17,9988 CHF Swiss franc 1,0773 CNY Chinese yuan renminbi 7,8552 ISK Iceland króna 156,80 HRK Croatian kuna 7,5650 NOK Norwegian krone 10,2513 IDR Indonesian rupiah 17 009,04 BGN Bulgarian lev 1,9558 MYR Malaysian ringgit 4,8997 CZK Czech koruna 26,094 PHP Philippine peso 58,406 HUF Hungarian forint 357,38 RUB Russian rouble 89,6369 PLN Polish zloty 4,5284 THB Thai baht 36,389 RON Romanian leu 4,8740 BRL Brazilian real 6,4073 TRY Turkish lira 8,9555 MXN Mexican peso 23,8443 AUD Australian dollar 1,5635 INR Indian rupee 88,7220
(1) Source: reference exchange rate published by the ECB. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/11
Opinion of the Advisory Committee on restrictive agreements and dominant positions at its meeting on 10 July 2020 concerning a draft decision relating to Case AT.40410 – Ethylene Rapporteur: Czech Republic
(2021/C 24/07)
1. The Advisory Committee (12 Member States) agrees with the Commission that the conduct covered by the draft decision constitutes a single and continuous infringement consisting of anticompetitive agreements and/or concerted practices between undertakings within the meaning of Article 101 of the TFEU.
2. The Advisory Committee (12 Member States) agrees with the Commission's assessment of the product and geographic scope for the single and continuous infringement contained in the draft decision.
3. The Advisory Committee (12 Member States) agrees with the Commission that the undertakings concerned by the draft decision participated in the single and continuous infringement of Article 101 of the TFEU, as spelled out in the draft decision.
4. The Advisory Committee (12 Member States) agrees with the Commission that the object of the infringement was to restrict competition within the meaning of Article 101 of the TFEU.
5. The Advisory Committee (12 Member States) agrees with the Commission that the infringement was capable of appreciably affecting trade between the Member States of the EU.
6. The Advisory Committee (12 Member States) agrees with the Commission's assessment as regards the duration of the infringement.
7. The Advisory Committee (12 Member States) agrees with the Commission's draft decision as regards the addressees in respect of the infringement.
8. The Advisory Committee (12 Member States) agrees with the Commission that the infringement should be ordered to be brought to an end and that a fine should be imposed on the addressees of the draft decision for the infringement in which they were involved.
9. The Advisory Committee (12 Member States) agrees with the Commission on the application of the 2006 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003.
10. The Advisory Committee (12 Member States) agrees with the Commission on the basic amounts of the fines.
11. The Advisory Committee (12 Member States) agrees with the Commission on the determination of the duration for the purpose of calculating the fines.
12. The Advisory Committee (12 Member States) agrees with the Commission that there are no aggravating and no mitigating circumstances applicable in this case, apart from the recidivism for one party as described in the draft decision.
13. The Advisory Committee (12 Member States) agrees with the Commission as regards the application of point 37 of the 2006 Guidelines on Fines.
14. The Advisory Committee (12 Member States) agrees with the Commission as regards the reduction of the fines based on the 2006 Leniency Notice.
15. The Advisory Committee (12 Member States) agrees with the Commission as regards the reduction of the fines based on the 2008 Settlement Notice. C 24/12 EN Offi cial Jour nal of the European Union 22.1.2021
16. The Advisory Committee (12 Member States) agrees with the Commission on the final amounts of the fine.
17. The Advisory Committee (12 Member States) recommends the publication of its Opinion in the Official Journal of the European Union. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/13
Final Report of the Hearing Officer (1) (Case AT.40410 – Ethylene)
(2021/C 24/08)
The draft decision, addressed to Westlake (2), Orbia (3), Clariant (4) and Celanese (5) (collectively ‘the Parties’), concerns a single and continuous infringement of Article 101 of the TFEU covering the territories of Belgium, the Netherlands, France and Germany that took place between 26 December 2011 and 29 March 2017. The draft decision finds that the undertakings comprising the Parties participated in that infringement, which consisted in exchanging of sensitive commercial and price-related information and in fixing of a price element related to the purchase of ethylene.
On 10 July 2018, the Commission initiated proceedings pursuant to Article 11(6) of Council Regulation (EC) No 1/2003 (6) against the Parties.
Following settlement discussions (7) and settlement submissions (8) in accordance with Article 10a(2) of Commission Regulation (EC) No 773/2004 (9), the Commission adopted a statement of objections (‘SO’) addressed to the Parties on 7 February 2020.
In their respective replies to the SO, the Parties confirmed pursuant to Article 10a(3) of Regulation (EC) No 773/2004 that the SO reflected the contents of their settlement submissions and that they therefore remained committed to following the settlement procedure.
Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which the Parties have been afforded the opportunity of making known their views. I conclude that it does so.
In view of the above, and taking into account that the Parties have not addressed any requests or complaints to me (10), I consider that the effective exercise of the procedural rights of the Parties to the proceedings in this case has been respected.
Wouter WILS
(1) Pursuant to Article 16 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29). (2) Westlake Chemical Corporation, Westlake Germany GmbH & Co. KG, Vinnolit GmbH & Co. KG and Vinnolit Holdings GmbH (together referred to as ‘Westlake’). (3) Orbia Advance Corporation, S.A.B. de C.V. (until 5 September 2019 the legal entity was named Mexichem S.A.B. de C.V.) and Vestolit GmbH (together referred to as ‘Orbia’). (4) Clariant AG and Clariant International AG (together referred to as ‘Clariant’). (5) Celanese Corporation, Celanese Services Germany GmbH and Celanese Europe B.V. (together referred to as ‘Celanese’). (6) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1) (7) The settlement meetings took place between 18 September 2018 and 12 November 2019. (8) The Parties submitted their formal requests to settle between 19 November 2019 and 6 January 2020. (9) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p.18). (10) Under Article 15(2) of Decision 2011/695/EU, parties to the proceedings in cartel cases which engage in settlement discussions pursuant to Article 10a of Regulation (EC) No 773/2004, may call upon the hearing officer at any stage during the settlement procedure in order to ensure the effective exercise of their procedural rights. See also paragraph 18 of Commission Notice 2008/C 167/01 on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ C 167, 2.7.2008, p. 1). C 24/14 EN Offi cial Jour nal of the European Union 22.1.2021
Summary of Commission Decision of 14 July 2020 relating to a proceeding under Article 101 of the Treaty on the functioning of the European Union (Case AT.40410 – Ethylene) (notified under document number C(2020) 4817 final) (Only the English text is authentic)
(2021/C 24/09)
On 14 July 2020, the Commission adopted a Decision relating to proceedings under Article 101 of the Treaty on the Functioning of the European Union. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1), the Commission herewith publishes the names of the parties and the main content of the Decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets.
1. INTRODUCTION
(1) On 14 July 2020, the Commission adopted a Decision relating to a single and continuous infringement of Article 101 of the Treaty.
(2) The infringement consisted of exchanging sensitive commercial and pricing-related information and of fixing a price element related to the purchases of ethylene. The infringement took place between 26 December 2011 and 29 March 2017. Geographically, the infringement covered the territories of the Member States of the European Union (‘the Union’) in Belgium, France, Germany and the Netherlands.
(3) The product concerned by the Decision is ethylene purchased on the merchant market. It does not cover ethylene produced for captive purposes, that is to say, produced and used by the producers for their own consumption.
(4) Ethylene is a colourless flammable gas produced from naphtha and gas by means of steam cracking. It is widely used in the chemical industry for the production of various chemical products.
(5) The purchase price of ethylene depends on volatile market factors (for example, raw material prices, supply/demand relationship and the captive use of ethylene). In order to reflect the risk of price volatility in ethylene supply agreements – and to allow for a benchmark against which ethylene trades can be priced – ethylene supply agreements especially in Belgium, France, Germany and the Netherlands often refer to the so-called ethylene Monthly Contract Price (the ‘MCP’) which is reported by private and independent reporting agencies.
(6) The MCP is not a net price for ethylene, but instead forms part of the pricing formula in certain ethylene supply agreements especially in Belgium, France, Germany and the Netherlands. The MCP thus directly influences the actual ethylene purchase price paid in transactions made under certain ethylene supply agreements especially in Belgium, France, Germany and the Netherlands and in certain transactions on the ethylene spot market .
(7) In order to establish an ethylene MCP for a given upcoming month, two separate but identical bilateral agreements (also called ‘settlements’) between two different pairs of suppliers and buyers have to be reached (i.e. the ‘2+2’ rule) as described in recital 8.
(1) OJ L 1, 4.1.2003, p. 1. Regulation as amended by Regulation (EC) No 411/2004 (OJ L 68, 6.3.2004, p. 1). 22.1.2021 EN Offi cial Jour nal of the European Union C 24/15
(8) After one pair of a supplier and a buyer has reached an agreement on the price for the following month, they communicate it to the private and independent reporting agencies. The agencies publish this agreement – the ‘initial settlement’ – to the market. After another pair of a buyer and a supplier settles at an identical price, this price becomes the MCP for the following month via a publication by those agencies. The agencies compete to be the first to report on the MCP.
(9) Companies participate in the MCP ‘settlement’ process on a voluntary basis. This means that, while some companies might participate very often, others may not be active at all. There is also no obligation for participating companies to submit all relevant information to the reporting agencies. ‘Settlement’ negotiations usually take place after publication of the relevant market analysts’ pricing forecasts in the last few days of the preceding month. The addressees of this Decision (also referred to as ‘parties’ or individually as ‘party’) regularly took part in the ‘settlement’ negotiations on a monthly basis; they also were among settling parties.
(10) The Decision is addressed to the following legal entities being part of the following undertakings (the ‘parties’):
(a) Westlake Chemical Corporation, Westlake Germany GmbH & Co. KG, Vinnolit GmbH & Co. KG and Vinnolit Holdings GmbH (‘Westlake’);
(b) Orbia Advance Corporation, S.A.B. de C.V. (2) and Vestolit GmbH (‘Orbia’);
(c) Clariant AG and Clariant International AG (‘Clariant’);
(d) Celanese Corporation, Celanese Services Germany GmbH and Celanese Europe B.V. (‘Celanese’).
2. CASE DESCRIPTION
2.1. Procedure
(11) Following an immunity application submitted by Westlake in June 2016, under the terms of the 2006 Leniency Notice (3) in relation to collusive contacts with other purchasers of ethylene in the EEA. Following the unannounced inspections, on 23 May 2017, Orbia applied for immunity from fines or, in the alternative, for a reduction of fines under the Leniency Notice. On 6 June 2017, Clariant applied for immunity from fines or, in the alternative, for a reduction of fines under the Leniency Notice. On 3 July 2017, Celanese applied for immunity from fines or, in the alternative, for a reduction of fines under the Leniency Notice.
(12) On 10 July 2018, the Commission initiated proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 against the parties with a view to engaging in settlement discussions with them. Settlement meetings and contacts between the Commission and each party took place between September 2018 and November 2019. Subsequently, all parties submitted their formal request to settle pursuant to Article 10(2) of Regulation (EC) No 773/2004 (4).
(13) On 7 February 2020, the Commission adopted a statement of objections addressed to the parties. All of the parties replied to the statement of objections by confirming that it reflected the contents of their settlement submissions and that they remained committed to following the settlement procedure.
(14) The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on 10 July 2020.
(15) The Commission adopted the Decision on 14 July 2020.
2.2. Summary of the infringement
(16) The Decision establishes a single and continuous infringement, which consisted of the exchange of sensitive commercial and pricing-related information and the fixing of a price element, namely the MCP, related to the purchases of ethylene in the Member States of the Union in Belgium, France, Germany and the Netherlands. The
(2) Until 5 September 2019 the legal entity was called Mexichem S.A.B. de C.V. (3) OJ C 298, 8.12.2006, p. 17. (4) OJ L 123, 27.4.2004, p. 18. C 24/16 EN Offi cial Jour nal of the European Union 22.1.2021
objective of the infringement was to influence the MCP negotiations to the buyers’ advantage with the aim of buying ethylene at the lowest possible price accepted by sellers in the ‘settlement’ process. The parties coordinated their future behaviour through bilateral contacts relating to the MCP, to their future market conduct during MCP ‘settlement’ negotiations with ethylene sellers and to views of the market trends; all prior to and during MCP ‘settlement’ negotiations.
2.2.1. Duration
(17) The duration of the participation of each party in the infringement was as follows:
Infringement Undertaking Start End
Westlake 26.12.2011 29.6.2016 (1) Orbia 17.11.2015 28.3.2017 Clariant 26.12.2011 29.3.2017 Celanese 18.1.2012 28.3.2017
(1) The date of the submission of the immunity application.
2.3. Addressees
2.3.1. Westlake
(18) Liability for the infringement is imputed jointly and severally to Vinnolit GmbH & Co. KG (for its direct participation from 26 December 2011 to 29 June 2016), Westlake Chemical Corporation (as the ultimate parent of Vinnolit GmbH & Co. KG from 31 July 2014 to 29 June 2016), Westlake Germany GmbH & Co KG (as the indirect parent of Vinnolit GmbH & Co. KG from 31 July 2014 to 29 June 2016) and Vinnolit Holdings GmbH (as the direct parent of Vinnolit GmbH & Co. KG from 26 December 2011 to 29 June 2016).
2.3.2. Orbia
(19) Liability for the infringement is imputed jointly and severally to Vestolit GmbH (for its direct participation) and to Orbia Advance Corporation, S.A.B. de C.V. (as the parent of Vestolit GmbH) from 17 November 2015 to 28 March 2017.
2.3.3. Clariant
(20) Liability for the infringement is imputed jointly and severally to Clariant International AG (for its direct participation) and to Clariant AG (as the parent of Clariant International AG) from 26 December 2011 to 29 March 2017.
2.3.4. Celanese
(21) Liability for the infringement is imputed jointly and severally to Celanese Services Germany GmbH (for its direct participation from 18 January 2012 to 20 January 2016), Celanese Europe B.V. (for its direct participation from 21 January 2016 to 28 March 2017 and as the indirect parent of Celanese Services Germany GmbH from 18 January 2012 to 20 January 2016) and to Celanese Corporation (as the parent of Celanese Services Germany GmbH and Celanese Europe B.V.) from 18 January 2012 to 28 March 2017.
2.4. Remedies
(22) The Decision applies the 2006 Guidelines on Fines (5).
(5) OJ C 210, 1.9.2006, p. 2. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/17
2.4.1. Basic amount of the fine
(23) With the view that the present case concerns a purchasing cartel, the relevant value of purchases was taken into account, rather than the value of sales (this approach was confirmed by the General Court in the AT.40018 – Car Battery Recycling Case T-222/17 – Recylex).
(24) The infringement does not relate to all ethylene purchases made by the parties. It relates to those purchases that were made while using MCP-related pricing formulas. Therefore, to take into account this element, the values retained are those values of purchases made under the ethylene supply agreements using a pricing formula, which is MCP-based, as well as MCP-based purchases made by the parties on the ethylene spot market in 2016 (in 2015 for the immunity applicant Westlake) in Belgium, Germany, France and the Netherlands.
(25) Considering the nature of the infringement and its geographic scope, the percentage of the variable amount of the fines as well as the additional amount (the ‘entry fee’) is set at 15 % of the value of purchases for the infringement.
(26) The variable amount is multiplied by the number of years or by fractions of the year respectively of the parties' individual participation in the infringement in order to take fully into account the actual duration of the participation for each party in the infringements individually. The duration multiplier is calculated on the basis of calendar days.
2.4.2. Adjustments to the basic amount
(27) No aggravating or mitigating circumstances are established in this case, apart for recidivism in case of Clariant. Clariant committed a cartel infringement in a previous case (AT.37773 – MCAA cartel). The basic amount for Clariant for the infringement is therefore increased by 50 %.
2.4.3. Application of point 37 of the Fines Guidelines
(28) In line with recent Commission practice on purchasing cartels (AT.40018 – Car Battery Recycling case) (6), as a matter of deterrence, a specific increase of the fines applies. This increase reflects the fact that the cartelists aimed at lower prices rather than to maintain higher prices. Indeed, in a purchasing cartel, the more successful the cartel members were in reducing the purchase price, the lower the value of purchases on which the fine is calculated would be.
(29) Given that the cartel in the present case is a purchasing cartel, the value of purchases in itself is unlikely to be an appropriate proxy for reflecting the economic importance of the present infringement. This is also because, normally in an operating undertaking, purchases are lower than sales in value terms, thus giving a systematic lower starting point for the calculation of a fine.
(30) The Commission therefore applied a 10 % increase of fines on all parties under point 37 of the 2006 Guidelines on Fines.
2.4.4. Application of the 10 % turnover limit
(31) None of the fines calculated exceeds 10 % of the respective party’s worldwide turnover in 2019.
(6) As confirmed in Cases T-222/17, Recylex S.A. Fonderie et Manufacture de Métaux S.A. and Harz-Metall GmbH v Commission, ECLI:EU: T:2019:356, para. 124 and T-240/17, Campine NV and Campine Recycling NV v Commission, ECLI:EU:T:2019:778, paras 342-349. C 24/18 EN Offi cial Jour nal of the European Union 22.1.2021
2.4.5. Application of the 2006 Leniency Notice: reduction of fines
(32) Westlake was the first to submit information and evidence meeting the conditions of point 8(a) of the 2006 Leniency Notice in the infringement. Westlake is thus granted immunity from fines for the infringement.
(33) Orbia was the first undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice. Orbia provided certain valuable contemporaneous evidence corroborating the parties’ participation in the infringement, as well as evidence providing further background information on the infringement, its scope and objective, the parties’ participation therein and the industry concerned. However, certain information that was provided in the application was already in the possession of the Commission. Orbia is therefore granted a reduction of 45 % of the fine for the infringement.
(34) Clariant was the second undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice. Clariant provided some valuable contemporaneous evidence on collusive contacts with other cartelists. It also provided evidence of a corroboratory nature and detailed information providing further background on the infringement and the industry concerned and confirming the existence of the infringement within the timeframe identified by the Commission. Clariant is therefore granted a reduction of 30 % of the fine for the infringement.
(35) Celanese was the third undertaking to meet the requirements of points 24 and 25 of the 2006 Leniency Notice. Celanese provided evidence of some collusive contacts with other parties to the infringement. It also provided detailed information on the historical evolution and the functioning of the investigated conduct. It further provided information on facts and evidence of a corroboratory nature providing further background on the infringement, and the continued participation of other parties to the infringement. Celanese is therefore granted a reduction of 20 % of the fine for the infringement.
2.4.6. Application of the Settlement Notice
(36) As a result of the application of the Settlement Notice, the amount of the fines to be imposed on each party was reduced by 10 %. The reduction was added to their leniency reward.
3. CONCLUSION
(37) The following fines were imposed pursuant to Article 23(2) of Regulation (EC) No 1/2003 for the infringement: (a) On Vinnolit GmbH & Co. KG, Vinnolit Holdings GmbH, Westlake Chemical Corporation and Westlake Germany GmbH & Co. KG, jointly and severally: EUR 0; (b) On Orbia Advance Corporation, S.A.B. de C.V. and VESTOLIT GmbH jointly and severally: EUR 22 367 000; (c) On Clariant International AG and Clariant AG jointly and severally: EUR 155 769 000; (d) On Celanese Services Germany GmbH, Celanese Europe B.V. and Celanese Corporation jointly and severally: EUR 66 484 000; (e) On Celanese Europe B.V. and Celanese Corporation jointly and severally: EUR 15 823 000. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/19
Opinion of the Advisory Committee on mergers at its meeting of 27 May 2019 concerning a preliminary draft decision relating to Case M.8713 – Tata Steel/ThyssenKrupp/JV Rapporteur: Bulgaria
(Text with EEA relevance)
(2021/C 24/10)
Operation
1. The Advisory Committee (13 Member States) agrees with the Commission that the Transaction constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.
Union dimension
2. The Advisory Committee (13 Member States) agrees with the Commission that the Transaction has a Union dimension pursuant to Article 1(2) of the Merger Regulation.
Product markets
3. The Advisory Committee (13 Member States) agrees with the Commission’s definitions of the relevant product markets for the production and supply of certain finished flat carbon steel products and in particular that tinplate, electrolytically-coated chromium steel (ECCS) and laminated steel for packaging products constitute distinct product markets.
4. The Advisory Committee (13 Member States) agrees with the Commission’s definitions of the relevant product markets for the production and supply of certain finished flat carbon steel products and in particular: 4.1. Hot-dip galvanised steel products supplied to the automotive industry (‘automotive HDG’) constitute a distinct product market from hot-dip galvanised steel products supplied for other applications, in particular due to the limited demand and supply side substitutability, the other specificities of the demand and supply of automotive HDG as detailed in the decision, and prevailing conditions of competition ([Information on margins]) between automotive and non-automotive customers; 4.2. All automotive HDG, regardless of whether supplied directly or indirectly to the automotive OEMs, belongs to the same relevant product market, which is likely differentiated.
Geographic markets
5. The Advisory Committee (13 Member States) agrees with the Commission’s definitions of the relevant geographic markets for the production and supply of certain finished flat carbon steel products and in particular: 5.1. The markets for tinplate, ECCS and laminated steel are at most EEA-wide; and 5.2. The market for automotive HDG is at most EEA-wide, but there is evidence that it is geographically differentiated within the EEA.
Competitive Assessment
6. The Advisory Committee (13 Member States) agrees with the Commission's assessment that the Transaction would significantly impede effective competition due to horizontal non-coordinated effects with regard to the production and supply of: 6.1. Tinplate, ECCS and laminated steel for packaging in the EEA; and 6.2. Automotive HDG in the EEA. C 24/20 EN Offi cial Jour nal of the European Union 22.1.2021
Efficiencies
7. The Advisory Committee (13 Member States) agrees with the Commission that none of the efficiencies claimed by the Parties meet the cumulative efficiency test of verifiability, merger specificity and benefit to consumers.
Commitments
8. The Advisory Committee (13 Member States) agrees with the Commission that the Final Commitments do not remove the significant impediment to effective competition in relation to the production and supply of: 8.1. Tinplate, ECCS and laminated steel for packaging in the EEA; and 8.2. Automotive HDG in the EEA.
9. The Advisory Committee (13 Member States) agrees with the Commission that the Final Commitments do not sufficiently ensure the viability and competitiveness of the Divestment Businesses.
Compatibility with the Internal Market
10. The Advisory Committee (13 Member States) agrees with the Commission that the Transaction should therefore be declared incompatible with the internal market and the functioning of the EEA Agreement in accordance with Articles 2(3) and 8(3) of the Merger Regulation and Article 57 of the EEA Agreement. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/21
Final Report of the Hearing Officer (1) (Case M.8713 – Tata Steel/ThyssenKrupp/JV)
(Text with EEA relevance)
(2021/C 24/11)
1. On 25 September 2018, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (‘the Merger Regulation’) by which Tata Steel Limited (‘Tata’) and thyssenkrupp AG (‘ThyssenKrupp’) would acquire, within the meaning of Article 3(1)(b) and Article 3(4) of the Merger Regulation, joint control of a newly created joint venture (the ‘Transaction’). Tata and ThyssenKrupp are designated hereinafter as the ‘Parties’.
2. Based on the results of the Phase I market investigation, the Commission raised serious doubts as to the compatibility of the Transaction with the internal market and adopted a decision pursuant to Article 6(1)(c) of the Merger Regulation on 30 October 2018. The Parties submitted their written comments on the Article 6(1)(c) decision on 19 November 2018.
3. On 13 November 2018, 19 March 2019 and 25 April 2019, the second phase period for reviewing the Transaction was extended pursuant to Article 10(3) of the Merger Regulation by a total of 20 working days.
4. On 5 December 2018, the Commission adopted two decisions, addressed respectively to Tata and ThyssenKrupp, pursuant to Article 11(3) of the Merger Regulation, requesting the supply of certain documents no later than 21 December 2019 and suspending the merger review time limit until the receipt of the complete and correct information (‘information request decisions’). On 11 December 2018, the Parties addressed a letter to the Hearing Officer, expressing their dissatisfaction with the adoption of the information request decisions, arguing, in essence, that the requests were too broad, that the deadline initially given for the Parties to respond was very short and that the suspension of the Commission’s review timetable pursuant to Aritcle 10(4) of the Merger Regulation was disproportionate, unjustified and unreasonable. The Parties complained that the information request decisions (and consequent suspension of the merger review time limit which was made public) had led to significant negative consequences, e.g. in terms of press inquiries and stock exchange reactions. As a first point, I note that Decision 2011/695/EU does not allow the Hearing Officer to take specific action with regards to the Parties’ concerns (2). Given the explanations that were provided by DG Competition in relation to the information request decisions, the subsequent prompt response by the Parties to the information request decisions (3) and the absence of any further complaints by the Parties to me in relation to the information request decisions, I do not consider that the effective exercise of the Parties’ procedural rights was impacted by the adoption of the information request decisions.
5. On 13 February 2019 the Commission adopted a Statement of Objections (‘SO’) pursuant to Article 18(1) of the Merger Regulation. In the SO, the Commission came to the preliminary view that the Transaction would likely significantly impede effective competition in the internal market within the meaning of Article 2 of the Merger Regulation due to (i) horizontal non-coordinated effects by eliminating an important competitive constraint in the market for the production and supply of hot dip galvanised steel for the automotive industry (‘automotive HDG’) in the EEA; (ii) the creation of a dominant position, or at least due to horizontal non-coordinated effects resulting from the elimination of an important competitive constraint in the markets for the production and supply of metallic coated (i.e. tin plate and electrolytic chromium coated steel) and laminated steel products for packaging in the EEA; and (iii) horizontal non-
(1) Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’). (2) While the Hearing Officer is competent to decide on a deadline extension in respect of decisions requesting information under Article 18(3) of Regulation (EC) 1/2003, there is no similar provision in Decision 2011/695/EU in relation to decisions requesting information under Article 11(3) of the Merger Regulation. The information request decisions could, however, have been the subject of annulment applications before the General Court. (3) Tata and ThyssenKrupp responded to the information request decisions on 4 and 9 January 2019 respectively. C 24/22 EN Offi cial Jour nal of the European Union 22.1.2021
coordinated effects by eliminating an important competitive constraint in the market for the production and supply of grain oriented electrical steel in the EEA. The Commission’s preliminary conclusion was therefore that the notified concentration would be incompatible with the internal market and the functioning of the EEA Agreement.
6. The Parties were granted access to the Commission's file on 14 February 2019 and subsequently on 1 March, 21 March, 17 April, 3 May and 17 May 2019. A data room was organised between 14 February and 21 February 2019 allowing the economic advisors of the Parties to verify confidential information of a quantitative nature, which formed part of the Commission’s file. A non-confidential report of the data room was provided to the Parties on 21 February 2019 and a revised version of this report was provided to the Parties on 22 February 2019. Another data room was organised from 21 to 25 March 2019. A second non-confidential data room report was provided to the Parties on 26 March 2019.
7. The Parties submitted their comments to the SO on 27 February 2019. The Parties did not request to be heard orally.
8. Five undertakings (ArcelorMittal, Ardagh, IG Metall, IndustriAll and Salzgitter AG) were admitted as interested third persons in the proceedings. All interested third persons were provided with a non-confidential version of the SO and Ardagh Group and Salzgitter AG submitted written comments to the SO, pursuant to Article 16(2) of the Commission Regulation (EC) 802/2004.
9. On 20 March 2019, the Commission addressed a Letter of Facts (‘LoF’) to the Parties. The Parties submitted their observations to the LoF on 25 March 2019.
10. On 1 April 2019, the Parties submitted commitments pursuant to Article 8(2) of the Merger Regulation. The commitments were market tested as of 2 April 2019. On 23 April 2019, the Parties submitted revised commitments (the ‘Revised Commitments’). On 25 April 2019, the Commission launched a market test of the Revised Commitments.
11. In the draft decision, the Commission concludes that the Transaction would significantly impede effective competition in a substantial part of the internal market in relation to (i) the production and supply of automotive HDG in the EEA and (ii) the production and supply of metallic coated (i.e. tin plate and electrolytic chromium coated steel) and laminated steel products for packaging in the EEA. The objections concerning the production and supply of grain oriented electrical steel in the EEA were not maintained in the draft decision. The draft decision also concludes that the commitments submitted by the Parties did not entirely eliminate the significant impediment to effective competition brought about by the Transaction.
12. I have reviewed the draft decision pursuant to Article 16(1) of Decision 2011/695/EU and I conclude that it deals only with objections in respect of which the Parties have been afforded the opportunity of making known their views.
13. Overall, I consider that the effective exercise of procedural rights has been respected in this case.
Brussels, 29 May 2019.
Joos STRAGIER 22.1.2021 EN Offi cial Jour nal of the European Union C 24/23
Summary of Commission Decision of 11 June 2019 declaring a concentration incompatible with the internal market and the functioning of the EEA Agreement (Case M.8713 – Tata Steel/ThyssenKrupp/JV) (notified under document number C(2019) 4228) (Only the English text is authentic)
(Text with EEA relevance)
(2021/C 24/12)
On 11 June 2019 the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (1), and in particular Article 8(3) of that Regulation. A non- confidential version of the full Decision, as the case may be in the form of a provisional version, can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address:
http://ec.europa.eu/competition/elojade/isef/index.cfm?clear=1&policy_area_id=2
1. THE PARTIES
(1) Tata Steel Limited (‘Tata’), incorporated in India, is a diversified company active in the mining of coal and iron ore, manufacturing of steel products, and selling those steel products globally. Tata further produces ferroalloys and related minerals and manufactures certain other products such as agricultural equipment and bearings.
(2) ThyssenKrupp AG (‘ThyssenKrupp’), incorporated in Germany, is a diversified industrial group active in the production of flat carbon steel products, material services, elevator technology, industrial solution and components technology.
2. THE OPERATION
(3) On 25 September 2018, the Commission received a formal notification pursuant to Article 4 of the Merger Regulation by which Tata and ThyssenKrupp would acquire within the meaning of Article 3(1)(b) and 3(4) of the Merger Regulation joint control of a newly created joint venture (the ‘JV’) (2). Tata and ThyssenKrupp are designated hereinafter as the ‘Notifying Parties’ or the ‘Parties’, and each separately as a ‘Party’. The notified operation is hereinafter referred to as the ‘Transaction’.
3. THE PROCEDURE
(4) Following a Phase I investigation, the Commission found that the Transaction raised serious doubts as to its compatibility with the internal market and adopted a decision to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation on 30 October 2018.
(5) On 13 February 2019, the Commission adopted a Statement of Objections (‘SO’) where it raised preliminary concerns. The Notifying Parties submitted their Reply to the SO on 27 February 2019.
(6) On 1 April 2019, the Notifying Parties submitted commitments pursuant to Article 8(2) of the Merger Regulation in order to address the competition concerns identified in the SO (the ‘Commitments of 1 April 2019’).
(1) OJ L 24, 29.1.2004, p. 1, the ‘Merger Regulation’. (2) OJ C 354, 3.10.2018, p. 4. C 24/24 EN Offi cial Jour nal of the European Union 22.1.2021
(7) On 2 April 2019, the Commission launched a market test of the Commitments of 1 April 2019.
(8) On 23 April 2019, the Notifying Parties submitted revised commitments (the ‘Revised Commitments of 23 April 2019’).
(9) On 25 April 2019, the Commission launched a market test of the Revised Commitments of 23 April 2019.
4. SUMMARY
(10) The Commission’s investigation revealed that the Transaction would significantly impede effective competition in the internal market with regard to the markets for the production and supply of (i) automotive hot-dip galvanised steel products (‘Automotive HDG’); and (ii) metallic coated and laminated steel products for packaging.
(11) While the Notifying Party proposed commitments to address the competition concerns, the proposed commitments were not adequate or suitable to address the competition concerns in their entirety on a lasting basis.
(12) Therefore, the Commission declared the Transaction incompatible with the internal market and with the functioning of the EEA Agreement, pursuant to Articles 2(3) and 8(3) of the Merger Regulation, and Article 57 of the EEA Agreement.
5. EXPLANATORY MEMORANDUM
5.1. The relevant product markets
(13) The Article 8(3) decision concerns the production and supply of (i) automotive hot-dip galvanised steel products (‘Automotive HDG’); and (ii) metallic coated and laminated steel products for packaging.
(14) Automotive HDG is hot-dip galvanised flat carbon steel that is supplied for automotive applications. From a demand perspective, the investigation confirmed that Automotive HDG is different from more basic hot-dip galvanised steel (‘Non-auto HDG’), in particular due to the specific and often more demanding requirements of the automotive customers compared to many other steel users. In practice, Automotive HDG typically has smaller tolerances, better surface quality, stricter requirements on the zinc coating and has more variety of grades than Non-auto HDG. Its production also requires the use of high quality hot rolled and cold rolled steel. From a supply perspective, the investigation confirmed that not all galvanising lines can produce Automotive HDG and that special production capabilities are needed to supply automotive customers. This also includes the control of the entire value chain from liquid and hot rolled steel to galvanisation – provided by a limited number of (integrated) suppliers. The definition of a separate product market for Automotive HDG steel is thus warranted.
(15) Packaging steels are used in a broad range of packaging solutions, such as food cans, paint cans, aerosol and crown corks. The substrate is cold rolled flat carbon steel that is further coated with tin (tin plate or ‘TP’) or chromium (electrolytic chromium coated steel or ‘ECCS’). Laminated steel for packaging is the product of further processing of TP or ECCS and is produced by applying a laminate coating on the substrate TP or ECCS. The Commission has in previous cases considered (but not defined) a separate market for TP and ECCS, and the investigation has confirmed that these can be defined as separate product markets. Furthermore, the investigation has confirmed that laminated steel for packaging constitutes a distinct market. The Commission concludes in the current case that TP, ECCS and laminated steel for packaging constitute distinct product markets.
5.2. The relevant geographic markets
(16) In the most recent precedent (ArcelorMittal/Ilva), the Commission defined flat carbon steel markets as EEA wide but recognised there is geographic differentiation within them. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/25
(17) The investigation confirmed that conditions of competition are not homogeneous globally and that suppliers’ presence varies significantly across different world regions.
(18) Moreover, in line with precedent, the in-depth investigation revealed that most European customers source predominantly from suppliers located in the EEA, or even in a narrower area closer to their manufacturing facilities. This is due not only to transport costs, but also to non-price factors such as lead times and integration into seamless ‘just-in-time’ supply chains, security of supply and technical support.
(19) As regards global trade, steel markets are increasingly characterised by trade measures creating additional barriers. Several states have adopted measures (such as the tariffs imposed by the US on most steel exporting nations), or initiated procedures to limit import flows as a response to such measures. In the EU, the Commission has adopted anti-dumping duties on a number of products, and has adopted safeguard measures in consequence of the US measures. These measures cover all relevant flat carbon steel products. These measures, as well as measures adopted or initiated by other jurisdictions such as for instance Canada, Turkey and the Eurasian Economic Union are hardly evidence for global markets. On the contrary, their aim is to neutralise abnormal level of imports resulting from market distortions. The investigation confirmed that the increasing number of trade barriers increase the costs and the risks associated with import of steel particularly for customers, such as in the automotive and packaging industries, for which security of supply, lead times and just-in-time supply chains are essential.
(20) In conclusion, the in-depth investigation indicated that it is not appropriate to depart from established precedent, and markets should be defined as EEA-wide. Evidence of geographic differentiation in the market for the production and supply for Automotive HDG and the specific role of imports for each product market is however assessed as part of the competitive analysis.
5.3. Competitive assessment
5.3.1. Horizontal non-coordinated effects in the market for the production and supply of Automotive HDG
(21) The Parties have a sales share in the Automotive HDG steel market of [20-30] %, behind the market leader ArcelorMittal. The other competitors are much smaller, with Voestalpine and Salzgitter at around [10-20] % market share each and SSAB and USSK being even smaller. Imports and non-integrated re-rollers play a negligible role, and customers consider vertical integration important.
(22) There are few companies capable of supplying Automotive HDG due to the higher quality requirements throughout the manufacturing process, and even fewer companies with a broad portfolio including specialised sub-segments such as high- strength steel or steel of a large width and high surface quality for exposed car parts. The capability to manage optimised supply chains with short lead times and on-time delivery is also required. Moreover, market participants consistently report high capacity utilisation rates and very limited spare capacity across the industry.
(23) Market shares likely underestimate Tata’s importance as it has significant capacities and is a growing player with significant investments to expand and gain share in the market, thus imposing a growing competitive constraint on ThyssenKrupp. The Phase II investigation also confirms that the Parties closely compete in a number of Automotive HDG segments, and due to their geographic footprint.
(24) The merged entity would face limited constraints in its ability to raise prices as all smaller European competitors operate at near full capacity. While ArcelorMittal (incl. Ilva) has spare capacities, it would itself benefit from an increase in price levels, and have little incentive to increase volumes. Consistent with this, despite the tight market for galvanised steel, ArcelorMittal has announced shift reductions and possible plant closures.
(25) Multiple automotive companies, including major manufacturers expressed concerns about the impact of the transaction on prices, and some also on innovation. Qualitative and quantitative evidence appears to support these claims. C 24/26 EN Offi cial Jour nal of the European Union 22.1.2021
5.3.2. Horizontal non-coordinated effects in the market for the production and supply of metallic coated and laminated steel for packaging
(26) The markets for packaging steels (TP, ECCS and laminated steel, which constitute distinct product markets) in the EEA are already very concentrated pre-Transaction. ArcelorMittal, ThyssenKrupp, Tata Steel and to a more limited extent USSK are the only producers in the EEA. USSK is much smaller than the other suppliers, is only active in TP, and does not offer the full range of products. The Transaction would thus result in a duopoly in packaging steel in the EEA for full-portfolio suppliers (and monopoly in one product, that is laminated steel).
(27) While there are imports from non-EEA countries, these are not considered a viable alternative by customers, due to the lack of quality and lead-time that customers require for instance require for food cans. In addition, the recent trade developments have made purchasing from outside the EEA more difficult in terms of security of supply.
(28) Post-Transaction, in TP the merged entity would have a combined sales share of [40-50] %, followed by ArcelorMittal. In terms of capacity share, the combined entity would have [60-70] %. In addition to ArcelorMittal, USSK in Slovakia remains in the market but has only limited capabilities and is considered as a weaker competitive force and at best regional player by customers.
(29) In ECCS, the merger is a three-to-two merger among European suppliers. The combined entity would be second with [30-40] % sales share, following ArcelorMittal. The Commission’s market reconstruction indicates that in terms of capacity, the merged entity would be market leader with [40-50] %.
(30) In laminated steel for packaging, the Parties are the only two producers in the EEA. The merger would effectively result in a monopoly.
(31) The Parties and ArcelorMittal are full-portfolio suppliers with good possibilities to address the needs of EEA customers. In comparison, USSK and non-EEA suppliers are more distant competitors and only exert limited competitive pressure, and USSK with limited spare capacities. Post-transaction, customers would have limited switching options (that is the merged entity and ArcelorMittal). The vast majority of customers expect price increases and some customers have been actively complaining and making submissions in the matter.
5.3.3. Conclusion
(32) The decision therefore concludes that the notified concentration would significantly impede effective competition in the internal market with regard to the markets for the production and supply of Automotive HDG, and metallic coated and laminated steels for packaging.
5.3.4. Undertakings submitted by the Parties
(33) In order to address the aforementioned competition concerns in the markets for Automotive HDG and metallic coated and laminated steels for packaging, the Parties submitted the undertakings described below.
(34) The Notifying Parties undertook to divest several downstream finishing plants for both metallic coated and laminated steels for packaging and Automotive HDG to an independent purchaser or purchasers subject to approval by the Commission. An upfront buyer requirement for each obliged the Parties not to complete the proposed Transaction before they or the Divestiture Trustee had entered into a binding agreement for the sale of both of the Divestment Businesses and the Commission had approved the purchaser(s) and the terms of sale. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/27
(35) As regards packaging steels, the proposed commitments comprised Tata’s packaging steel assets in Trostre (UK, the ‘Trostre Plant’) and Duffel (Belgium, ‘the Duffel Plant’, together the ‘Packaging Steel Business’). The Packaging Steel Business included operational capacity to produce TP, ECCS and laminated steel for packaging. The Trostre Plant has capacities for pickling input hot-rolled steel and cold rolling it. At the finishing stages it included one ECCS line, two TP lines and one lamination line. The Duffel Plant has one lamination line.
(36) While the commitments did not include assets for the production steps upstream of cold rolling (such as hot-rolling or liquid steelmaking), they included the option of a 10-year supply agreement for hot-rolled coils at cost-plus terms, at the request of the purchaser. The Trostre Plant is currently sourcing its steel substrate from Tata’s plant in Port Talbot, and the Duffel plant from the Trostre Plant.
(37) Moreover, the Parties committed to an escrow account for the purchaser to drawdown in order to fund capacity expansions, the addition of a R&D facility, and further enhancements to the Packaging Steel Business.
(38) For the period before the Packaging Steel Business has completed the investments to increase capacity (by drawing down from the available escrow), the Parties offered an agreement with the purchaser whereby the Parties would either toll manufacture or supply (or both) finished packaging steel products for the Packaging Steel Business up to a certain volume per year. The Packaging Steel Business would be granted this contract for a maximum of 3 years, on a cost-plus basis.
(39) The Parties committed to use commercially reasonable efforts to encourage their existing customers to switch to the Packaging Steel Business.
(40) In addition, the Parties committed to offer several transitional supply arrangements, including (i) a three-year supply agreement for hot-rolled coil (in the event that the 10-year supply agreement is not taken); (ii) a three-year supply agreement for polymer film (for the manufacturing of laminated packaging steel); and (iii) for a transitional period of up to 18 months, the supply of various other services, including the supply of services for the use of testing facilities at Tata’s IJmuiden plant.
(41) Shared personnel and shared testing and research facilities located in Tata’s IJmuiden plant were to be excluded from the Packaging Steel Business.
(42) As regards Automotive HDG, the proposed commitments comprised ThyssenKrupp’s plant in Sagunto (Spain, the ‘Sagunto Plant’) and Tata’s plant in Ivôz-Ramet (Belgium, the ‘Segal Plant’, together the ‘Automotive HDG Business’). Both the Sagunto Plant and the Segal Plant are comprised of one galvanising line for the production of zinc and zinc-magnesium coated HDG as well as one finishing/inspection line.
(43) The Automotive HDG Business did not include assets for the production of cold-rolled coils and inputs further upstream. Instead, it included an option for a 10-year supply agreement for the required cold-rolled substrate at cost-plus terms, at the request of the purchaser.
(44) Moreover, the Parties committed an escrow account for the purchaser to drawdown to fund enhancements and upgrades to the Sagunto Plant.
(45) In addition, the Parties committed to offering several transitional supply arrangements, including (i) a three-year supply agreement for cold-rolled coil (in the event that the 10-year supply agreement is not taken); and (ii) for a transitional period of up to 18 months, the supply of any necessary services for all current arrangements under which the Parties or their affiliated undertakings supply products or services to the Automotive HDG Business.
(46) Shared personnel and shared testing and research facilities located at ThyssenKrupp’s Duisburg North plant and at Tata’s IJmuiden Plant were to be excluded from the Automotive HDG Business. C 24/28 EN Offi cial Jour nal of the European Union 22.1.2021
5.3.5. Assessment of the undertakings submitted
Automotive HDG
(47) As regards automotive HDG, the Commission considers that the remedy proposal of 23 April 2019 did not eliminate the significant impediment to effective competition brought about by the Transaction. This is due to the size, scope and geographic location of the assets as well as the lack of upstream integration.
(48) The Automotive HDG Business would only account for approximately 40 % of the incremental nominal capacity brought about by the Transaction with regard to the Parties’ overlap in Automotive HDG in the EEA, and only two automotive HDG production lines out of the more than 10 the Parties have in the EEA.
(49) Further, both lines proposed for divestment have technical limitations (such as limited ability to produce HDG with large strip widths and very high tensile strengths) and particularly Sagunto currently delivers a substantial part of its output to locations outside the centre where the majority of EEA Automotive HDG demand is.
(50) These findings were corroborated by the results of the market tests. A large majority of responding customers that took a position did not consider the remedies to be suitable and adequate to effectively remove the Commission’s competition concerns with respect to Automotive HDG in the EEA.
(51) The lack of upstream capacity in the Automotive HDG remedy proposal was also highlighted as problematic in a great number of automotive customer responses (in particular by OEMs).
Metallic coated and laminated steels for packaging
(52) As regards metallic coated and laminated steels for packaging, the Commission considers that the remedy proposal of 23 April 2019 did not eliminate the significant impediment to effective competition brought about by the Transaction. This is due to the size, scope, geographic location of the assets as well as the uncertainties around the proposed investments and the lack of upstream integration.
(53) The Transaction would bring about a significant increment in an already concentrated market, both in terms of capacity and EEA sales. For TP, the merged entity would hold a sales share of [30-40] % and capacity share of [50-60] %, the Packaging Steel Business would hold only a sales share of [5-10] % and capacity share of [5-10] %. With ArcelorMittal as the only other large remaining competitors, the market structure would effectively still move from three players to a duopoly, despite the remedy.
(54) Respondents to the Commission’s market tests further indicated that the quality of products produced by the proposed divestment plants is in certain cases lower than of products produced by plants to be retained by the Parties. In that regard, they submitted that the Trostre plant often requires assistance from Tata’s IJmuiden plant to deal with quality issues.
(55) Even when considering that the proposed investments to increase capacity and enhance other aspects of the Packaging Steel Business would be successful, this would still not address the incremental overlap brought about by the Transaction. Similarly, a majority of customers taking a position did not consider the scale and scope of the Commitments, including the investment commitment envisaged to expand capacity, to be sufficient to ensure its viability and competitiveness.
(56) The proposed capacity expansion of the Packaging Steel Business would likely take a considerable amount of time. For this reason, the Parties committed to produce packaging steel for the Packaging Steel Business under a toll- manufacturing agreement at cost (plus) terms on an interim basis. In this regard, the market test revealed great uncertainty among customers whether the Packaging Steel Business would be able to compete effectively on prices with the Parties under the proposed tolling agreement. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/29
(57) In addition, the location of the Trostre Plant makes it problematic to reach customers where the Parties overlap in continental Europe. This is for instance illustrated by its sales that are heavily skewed towards the UK. By comparison, the sales of ThyssenKrupp’s Rasselstein plant are much less skewed and more evenly distributed between different countries. While this is already the case today, this would even further be aggravated by a potential departure of the UK out of the EEA.
(58) Furthermore, the lack of upstream integration introduced a significant amount of uncertainty as to whether the Packaging Steel Business would operate as a viable business independently from the Parties or from other suppliers in the oligopolistic market structure of TP, ECCS and laminated steel for packaging. The importance for a supplier of metallic coated and laminated steels for packaging to be vertically integrated in order to have control over the required high-quality upstream input was also underlined by customers. This input is specific for packaging steel, and is shown by the market test not to be manufactured by steel suppliers that are not active in packaging steels. The market test also revealed that no merchant market for the required substrate currently exists in Europe, thereby most likely rendering the Packaging Steel Business dependent on the incumbent EEA producers of packaging steel.
(59) In its decision, the Commission has, therefore, reached the conclusion that the undertakings submitted by the Notifying Parties were not effective and comprehensive as they did not eliminate the significant impediments to effective competition.
6. CONCLUSION
(60) For the reasons mentioned above, the decision concludes that the proposed concentration would significantly impede effective competition in the Internal Market or in a substantial part of it.
(61) Consequently, the concentration is declared incompatible with the Internal Market and the functioning of the EEA Agreement, in accordance with Article 2(3) and Article 8(3) of the Merger Regulation and Article 57 of the EEA Agreement. C 24/30 EN Offi cial Jour nal of the European Union 22.1.2021
Information from the Commission pursuant to Council Decision (EU) 2020/1421
(2021/C 24/13)
Pursuant to Article 3 of Council Decision (EU) 2020/1421 of 1 October 2020 on the position to be taken on behalf of the European Union as regards amendments to the Annexes to the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) and to the Regulations annexed to the European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways (ADN) (1), the Commission informs that the decisions taken at the respective bodies are available at:
https://treaties.un.org/doc/Publication/CN/2020/CN.438.2020-Eng.pdf https://treaties.un.org/doc/Publication/CN/2020/CN.461.2020-Eng.pdf and https://treaties.un.org/doc/Publication/CN/2020/CN.546.2020-Eng.pdf
(1) OJ L 329, 9.10.2020, p. 1. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/31
COURT OF AUDITORS
Special Report No 2/2021 EU humanitarian aid for education: helps children in need, but should be longer-term and reach more girls
(2021/C 24/14)
The European Court of Auditors hereby informs you that Special Report No 2/2021 ‘EU humanitarian aid for education: helps children in need, but should be longer-term and reach more girls’ has just been published.
The report can be accessed for consultation or downloading on the European Court of Auditors’ website: http://eca.europa.eu C 24/32 EN Offi cial Jour nal of the European Union 22.1.2021
V
(Announcements)
PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY
EUROPEAN COMMISSION
Prior notification of a concentration (Case M.10105 — FSN Capital/Obton Invest/Obton Group) Candidate case for simplified procedure
(Text with EEA relevance)
(2021/C 24/15)
1. On 14 January 2021, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004. (1)
This notification concerns the following undertakings:
— FSN Capital GP VI Limited (‘FSN Capital VI’, United Kingdom), belonging to the group FSN Capital,
— Obton Invest A/S (‘Obton Invest’, Denmark),
— Obton Group Holding A/S (‘Obton Group’, Denmark), currently controlled by Obton Invest.
FSN Capital VI and Obton Invest acquire within the meaning of Article 3(1)(b) and 3(4) of the Merger Regulation joint control of Obton Group.
The concentration is accomplished by way of purchase of shares in a newly created company constituting a joint venture.
2. The business activities of the undertakings concerned are:
— for FSN Capital VI: investment fund managed by FSN Capital, a private equity advisor active in the Northern European region, which provides investment opportunities to institutional investors,
— for Obton Invest: holding company of Obton Group, through which it provides alternative investment opportunities,
— for Obton Group: specialised alternative investment provider, which provides photovoltaic solar projects and real estate investment opportunities to individual private investors via its subsidiaries.
3. On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved.
Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.
(1) OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’). (2) OJ C 366, 14.12.2013, p. 5. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/33
4. The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
Observations must reach the Commission not later than 10 days following the date of this publication. The following reference should always be specified:
M.10105 — FSN Capital/Obton Invest/Obton Group
Observations can be sent to the Commission by email, by fax, or by post. Please use the contact details below:
Email: [email protected]
Fax +32 22964301
Postal address:
European Commission Directorate-General for Competition Merger Registry 1049 Bruxelles/Brussel BELGIQUE/BELGIË C 24/34 EN Offi cial Jour nal of the European Union 22.1.2021
Prior notification of a concentration (Case M.10131 — Partners Group/Warburg Pincus/Ecom Express Private) Candidate case for simplified procedure
(Text with EEA relevance)
(2021/C 24/16)
1. On 12 January 2021, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1).
This notification concerns the following undertakings:
— Partners Group AG (‘Partners Group’, Switzerland),
— Warburg Pincus LLC (‘Warburg Pincus’, United States),
— Ecom Express Private Limited (‘Ecom Express Private’, India) controlled by Warburg Pincus.
Partners Group and Warburg Pincus acquire within the meaning of Article 3(1)(b) and 3(4) of the Merger Regulation joint control of Ecom Express Private.
The concentration is accomplished by way of purchase of shares.
2. The business activities of the undertakings concerned are:
— for Partners Group: global private markets investment management company active in a range of industries,
— for Warburg Pincus: global private equity firm with portfolio companies active in various sectors (e.g. consumer, industrial and business services, energy, financial services, healthcare, real estate, and technology),
— for Ecom Express Private: provider of third-party logistics services in India.
3. On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved.
Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.
4. The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
Observations must reach the Commission not later than 10 days following the date of this publication. The following reference should always be specified:
M.10131 — Partners Group/Warburg Pincus/Ecom Express Private
Observations can be sent to the Commission by email, by fax, or by post. Please use the contact details below:
Email: [email protected]
Fax +32 22964301
(1) OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’). (2) OJ C 366, 14.12.2013, p. 5. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/35
Postal address:
European Commission Directorate-General for Competition Merger Registry 1049 Bruxelles/Brussel BELGIQUE/BELGIË C 24/36 EN Offi cial Jour nal of the European Union 22.1.2021
Prior notification of a concentration (Case M. 10117 — A.P. Moller/APMH Invest/Faerch Group) Candidate case for simplified procedure
(Text with EEA relevance)
(2021/C 24/17)
1. On 14 January 2021, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1).
This notification concerns the following undertakings:
— APMH Invest A/S (Denmark), (‘APMHI’), a wholly-owned subsidiary of A.P. Møller Holding A/S (Denmark), (‘APMH’),
— Faerch Group A/S (Denmark), (‘Faerch’).
APMHI acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control of the whole of Faerch.
The concentration is accomplished by way of purchase of shares.
2. The business activities of the undertakings concerned are:
— APMHI: fund management focussing on shipping, oil exploitation and land based industries. It is an affiliate in APMH, the controlling shareholder in A.P. Møller-Maersk A/S group, an integrated transport and logistics company.
— Faerch: manufacture and distribution of plastic packaging for the food industry, including different thermoformed plastic trays in all major plastic resins, mainly serving the European marketplace for ready meals, cold food & snacks and fresh meat.
3. On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved.
Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.
4. The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
Observations must reach the Commission not later than 10 days following the date of this publication. The following reference should always be specified:
M.10117 — A.P. Moller/APMH Invest/Faerch Group
Observations can be sent to the Commission by email, by fax, or by post. Please use the contact details below:
Email: [email protected]
Fax +32 22964301
(1) OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’). (2) OJ C 366, 14.12.2013, p. 5. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/37
Postal address:
European Commission Directorate-General for Competition Merger Registry 1049 Bruxelles/Brussel BELGIQUE/BELGIË C 24/38 EN Offi cial Jour nal of the European Union 22.1.2021
OTHER ACTS
EUROPEAN COMMISSION
Publication of a communication of approval of a standard amendment to a product specification for a name in the wine sector referred to in Article 17(2) and (3) of Commission Delegated Regulation (EU) 2019/33
(2021/C 24/18)
This communication is published in accordance with Article 17(5) of Commission Delegated Regulation (EU) 2019/33 (1).
COMMUNICATION OF STANDARD AMENDMENT MODIFYING THE SINGLE DOCUMENT
‘SAINT-MONT’
PDO-FR-A0711-AM01
Date of communication: 3.11.2020
DESCRIPTION OF AND REASONS FOR THE APPROVED AMENDMENT
1. Demarcated geographical area
The municipality of Riscle is replaced by ‘Riscle (former municipality of Riscle)’ following the merger of the municipalities of Riscle and Cannet.
This entails an amendment to point 6 of the single document.
2. Variety
The vine varieties are specified by the colour of the wine.
In the vine varieties of red wines and rosé wines, the adaptation varieties Manseng N and Tardif N are added. These two varieties native to the Pyrenean foothills respond to changes in the climate and to environmental and technical developments. In a time of global warming the late maturing of the Tardif N variety, and its peppery aromas and silky tannins, are an asset. Moreover, this variety has no particular sensitivity to botrytis. Manseng N is of particular interest because it matures with a lower alcohol volume. These two varieties have the potential to restore balance (more aromas and less alcohol) in the blend.
In the vine varieties of rosé wines, the complementary varieties of Cabernet-Sauvignon and Fer N become main varieties in order to be more present. In addition to the Cabernet Franc N and Merlot N already present, the white varieties that were initially included in the rules on the proportions of vine varieties, but were not listed under this heading, are added to the list of secondary varieties: ‘Manseng B, Arrufiac B, Petit Courbu B, Courbu B, Petit Manseng B’.
These amendments require no changes to the single document.
3. Proportion to be planted As a result of the modification of the vine varieties, the rules on proportions are described by colour of wine. For red and rosé wines, rules on proportions relating to the addition of the new adaptation varieties are added: ‘The proportion of all secondary Tardif N and Manseng N varieties must be less than or equal to 5 %.’
(1) OJ L 9, 11.1.2019, p. 2. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/39
For white wines, the main grape variety is reaffirmed by increasing its minimum presence from 50 % to 60 % of the varietal mix.
Special provisions are added for small vine-growers providing grapes: ‘With the exception of the provisions relating to the proportion of the adaptation varieties Tardif N and Manseng N, and with respect to each colour (white or red), the provisions on proportions do not apply to grape producers who do not make their own wine, who grow on less than 1,5 hectares per colour for the ‘Saint-Mont’ registered designation of origin and who maintain a proportion of main grape varieties equal to or greater than 50 % of the mix of vine varieties for the colour in question.’ It is the case that 98 % of operators are members of cooperatives. Requiring these winegrowers to have all the varieties referred to in the specification on such small areas is likely to weaken them owing to the difficulty in implementing such large proportions in relation to their area. Moreover, there is a collective cellar arrangement allowing the blending rules to be complied with across the vine varieties present in the territory.
This amendment requires no changes to the single document.
4. Spacing between vines
The minimum spacing between vines in the same row is reduced from 0,9 metres to 0,8 metres.
This makes it possible to increase density by lowering the minimum distance between the vines. The increase in density results in greater competition between the vines, which develop deeper root systems, allowing the terroir to be expressed more markedly.
This entails an amendment to point 5 of the single document.
5. Maximum crop load per parcel
The maximum load for rosé wines is aligned with that of red wines, and thus decreases from 10 000 kg/ha to 9 500 kg/ha. As a result, the rosé and red parcels will be managed in the same way as regards the provisions of the control plan, i.e. maximum average load and harvesting. As the harvest weight is the same for red and rosé (9 500 kg), the two colours differ only in harvesting method.
This amendment requires no changes to the single document.
6. Growing methods
The words ‘In order to preserve the characteristics of soils constituting a fundamental element of the terroir, vegetation cover must be maintained on the headlands surrounding the vineyard parcels in the demarcated parcel area’ are replaced by ‘Chemical weed control in headlands is prohibited’, in order to allow more appropriate oversight of growing practices.
This amendment requires no changes to the single document.
7. Provisions relating to old vines
In order to preserve certain vines of historical and genetic interest which are at risk of being grubbed up between now and the period from 2021 to 2040 because they will no longer meet the densities required by the product specification, the following special provisions are added:
‘Vineyard parcels in place on the date of approval of this specification that have a planting density of less than 4 000 vines per hectare, do not comply with one or more of the provisions relating to spacing between rows and spacing between vines in the same row, and are entered in the ‘old vines’ register of the ‘Saint-Mont’ registered designation of origin, shall have, for harvesting, the right to the registered designation of origin until they are grubbed up.’ The ‘old vines’ register is subject to an annual review against the following criteria:
— the vines must have been planted before 1982,
— the vines must be trained on a vertical trellis system, and the height of the foliage when trellised must be at least 0,6 times the spacing between the rows,
— the maximum yield is 50 hl/ha for parcels with a planting density of more than 3 600 vines per hectare, C 24/40 EN Offi cial Jour nal of the European Union 22.1.2021
— the maximum yield is 45 hl/ha for parcels with a planting density of less than 3 600 vines per hectare but more than 3 200 vines per hectare, — the maximum yield is 40 hl/ha for parcels with a planting density of less than 3 200 vines per hectare but more than 2 600 vines per hectare.’ This amendment requires no changes to the single document.
8. Sugar content of the grapes Since vine varieties have been added, the sugar content is specified for these varieties, for red and rosé wines. Tardif N and Manseng N: 189 grams of sugars per litre of must for red wines Tardif N and Manseng N: 180 grams of sugars per litre of must for rosé wines This amendment requires no changes to the single document.
9. Blending Blending rules for adaptation varieties are added for rosé wines and red wines: ‘The wines are made from a blend in which the combined proportion of the Tardif N and Manseng N adaptation varieties is less than or equal to 10 %’. In the blend of red wines, the Tannat variety is reaffirmed by increasing the minimum percentage from 50 % to 60 %. In the blend of white wines, the Gros Manseng variety is reaffirmed by increasing the minimum percentage from 50 % to 60 %. In the blend of rosé wines: — The text ‘The wines are made from a blend in which at least the main variety and the complementary varieties are present’ is changed to ‘The wines are made from a blend in which at least two main varieties are present.’ This is because in some vintages Tannat is unsuitable for making rosé (gap between phenolic and technological maturity; difficulty in finding a balance between ABV and acidity). On the other hand, Cabernet-Sauvignon and Fer N would be better suited to rosé production (lower ABV). These new blending rules give more scope in the production of rosés. — The white varieties are described as follows: ’The wines are made from a blend in which the proportion of the white varieties Manseng B, Arrufiac B, Petit Courbu B, Courbu B and Petit Manseng B is less than or equal to 10 %’. — The following are deleted: ‘In the blending, no variety may exceed 70 %’ and ‘In the blend, the main grape variety is present in the highest proportion’. This amendment requires no changes to the single document.
10. Oenological charcoal The use of charcoal, previously prohibited, is permitted in a specific and limited way: ‘The use of oenological charcoal is authorised in the production of rosé wines for musts up to a maximum of 20 % of the volume of rosé wine produced by the winemaker concerned for the harvest in question.’ The aim is to focus use on batches of lower organoleptic or analytical quality (particularly as regards aromatic alterations linked to oxidation) without changing the product’s typical features. This entails an amendment to point 5 of the single document.
11. Circulation between authorised warehouses Point IX(5)(b) of Chapter 1 concerning the date of entry into circulation of the wines between authorised warehouses is deleted. This amendment requires no changes to the single document.
12. Record-keeping The ‘old vine’ register is added to the list of compulsory registers following the addition of a special provision for the preservation of certain parcels of vines of genetic interest. This amendment requires no changes to the single document. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/41
13. Production waiver declaration The paragraph concerning the production waiver is simplified in order not to make a distinction between different colours of wines. This amendment requires no changes to the single document.
14. Main points to be checked A documentary and a field check are added for the ‘old vine’ parcels. This amendment requires no changes to the single document.
SINGLE DOCUMENT
1. Name of the product Saint-Mont
2. Geographical indication type PDO – Protected Designation of Origin
3. Categories of grapevine product 1. Wine
4. Description of the wine(s)
Red wines The red wines have a minimum natural alcoholic strength by volume of 12 %. Each batch of wine ready to be marketed, in bulk or packaged form, has: — a total alcoholic strength not exceeding 13,5 % after enrichment in the case of red wines, — for red wines, a malic acid content not exceeding 0,4 grams per litre, — a fermentable sugar (glucose + fructose) content not exceeding: — 3 grams per litre for red wines with a natural alcoholic strength by volume not exceeding 14 %, — 4 grams per litre for wines with a natural alcoholic strength by volume exceeding 14 %. The total acidity, volatile acidity and total sulphur dioxide content are as laid down in EU legislation. The red wines have an intense colour. On the palate the taste is usually characterised by a good aromatic concentration, often revealing notes of red and black fruit. The tannin structure gives these wines a good storage potential, allowing them to acquire complex aromas of candied fruit and spices, often combined with woody tones from ageing in barrels.
General analytical characteristics
Maximum total alcoholic strength (in % volume)
Minimum actual alcoholic strength (in % volume)
Minimum total acidity
Maximum volatile acidity (in milliequivalents per litre)
Maximum total sulphur dioxide (in milligrams per litre) C 24/42 EN Offi cial Jour nal of the European Union 22.1.2021
White and rosé wines
White and rosé wines have a minimum natural alcoholic strength by volume of 11,50 %.
Each batch of wine ready to be marketed, in bulk or packaged form, has:
— a total alcoholic strength not exceeding 12,5 % after enrichment in the case of white and rosé wines,
— a fermentable sugar (glucose + fructose) content not exceeding:
— 4 grams per litre for white and rosé wines.
The total acidity, volatile acidity and total sulphur dioxide content are as laid down in EU legislation.
The rosé wines have a colour that is sometimes intense and the nose is usually characterised by notes of red fruit. On the palate their lively aftertaste makes the wines harmonious and gives them a good balance between richness and acidity.
The white wines are very aromatic, rich and balanced thanks to the presence of the Gros Manseng B variety.
General analytical characteristics
Maximum total alcoholic strength (in % volume)
Minimum actual alcoholic strength (in % volume)
Minimum total acidity
Maximum volatile acidity (in milliequivalents per litre)
Maximum total sulphur dioxide (in milligrams per litre)
5. Wine-making practices
a. Essential oenological practices
Essential oenological practice
— The rosé wines are made by direct pressing.
— For the production of rosé wines, the use of oenological charcoal is authorised for musts up to a maximum of 20 % of the volume of rosé wines produced by the winemaker concerned for the harvest in question.
— Reductive methods of enrichment are permitted for the red wines, with the maximum partial concentration rate set at 10 % relative to the volumes used.
— After enrichment, the wines’ total alcoholic strength by volume must not exceed 13,5 % for the reds and 12,5 % for the whites and rosés.
In addition to the provisions above, all winemaking practices must also comply with the requirements laid down at EU level and in the Rural and Maritime Fishing Code.
Growing method
— Planting density
The minimum planting density of the vines is 4 000 plants per hectare.
The distance between the rows is 2,5 metres or less, and the spacing between plants in the same row is between 0,8 metres and 1,1 metres. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/43
These provisions do not apply to vines planted on terraces. For vines planted on terraces, the distance between vines in the same row is between 0,9 metres and 1,1 metres.
— Pruning rules The vines are pruned by either single or double Guyot pruning or by short pruning (trained using the cordon de Royat method), with a maximum per vine of: — 12 count buds for the Tannat N variety, — 18 count buds for the Petit Courbu B and Petit Manseng B varieties, — 16 count buds for other varieties. Whichever pruning technique is used, the number of fruit-bearing branches per vine, at the ‘véraison’ [onset of ripening] stage, must not exceed: — 10 for the Tannat N variety, — 16 for the Petit Courbu B and Petit Manseng B varieties, — 12 for other varieties, — irrigation may be authorised, — the Tannat N variety and the varieties intended for the production of red wines are harvested manually.
b. Maximum yields Red wines 63 hectolitres per hectare Rosé wines 68 hectolitres per hectare White wines 69 hectolitres per hectare
6. Demarcated geographical area The grapes are harvested and the wines made, developed and aged on the territory, or on part of the territory, of the following municipalities in the Gers department: Municipalities whose territory falls entirely within the geographical area: Aignan, Arblade-le-Bas, Armous et Cau, Aurensan, Beaumarchès, Bernède, Bouzon-Gellenave, Castelnavet, Caumont, Corneillan, Couloumé-Mondebat, Courties, Fusterouau, Gazax et Baccarisse, Ju-Belloc, Labarthète, Ladevèze-Ville, Ladevèze-Rivière, Lannux, Lasserrade, Lelin-Lapujolle, Louslitges, Loussous-Débat, Lupiac, Margouët-Meymes, Maulichères, Peyrusse-Grande, Peyrusse-Vieille, Plaisance, Pouydraguin, Projan, Riscle (former municipality of Riscle), Sabazan, Saint-Aunix-Lengros, Saint-Mont, Saint-Pierre-d’Aubézies, Sarragachies, Tasque, Termes-d’Armagnac, Tieste-Uragnoux, Tourdun and Verlus. Municipalities part of whose territory falls within the geographical area: Averon-Bergelle, Dému, Marciac and Seailles.
7. Main wine grape variety(ies) Arrufiac B - Arrufiat Cabernet Franc N Cabernet-Sauvignon N Courbu B - Gros Courbu Fer N - Fer Servadou, Braucol, Mansois, Pinenc Gros Manseng B C 24/44 EN Offi cial Jour nal of the European Union 22.1.2021
Merlot N
Petit Courbu B
Petit Manseng B
Tannat N
8. Description of the link(s)
The geographical area is equidistant – around 100 kilometres – from the Pyrenees to the south and from the Atlantic Ocean to the west. It extends over a hilly area on both sides of the valleys of the river Adour and one of its tributaries, the Arros.
The vine plantations are spread over slopes at the heart of an agricultural region devoted to mixed cultivation and livestock farming, where the cultivation of maize has an important role.
It covers the territory of 46 municipalities.
Temperatures are mild and fairly homogeneous throughout the geographical area. There is a strong rainfall gradient from west to east, from 1 000 mm per year to 800 millimetres per year.
The summer and early autumn are hot and often dry, particularly as a result of the southerly ‘foehn’ wind, which blows frequently during this period.
The geological substrate is varied. To the west it is mainly composed of ‘Sables Fauves’ [tawny sands], a marine formation from the Tertiary period, the southern boundary of which coincides with the border of the geographical area. These are topped by ancient alluvial sheets, where pebbles emerge and form colluvium on the slopes.
Further east the ‘Sables Fauves’ disappear and are replaced by molasse, with calcareous beds an obvious feature of the landscape.
The soils that have developed on this substrate are:
— either clay-limestone soils that have developed on the molasse,
— or leached acid soils that have developed on ‘Sables Fauves’ and pebbly colluvium.
These soils have a low mineral-element content.
Excess water is drained away by the slopes, and in the western part of the area by the sandy and stony nature of the soil.
The complex structure of the terrain, following the main Adour and Arros valleys, often arranged along tectonic lines, and then split into secondary ridges, forms a patchwork of locations oriented in various directions.
The morphology of the valleys is clearly asymmetrical. The west-facing slope is often steep, unlike the east-facing side, which slopes gently.
In addition to the red and ‘clairet’ wines produced in a large area of the Adour basin and intended for the inhabitants of the Pyrenean mountains, white wines have been produced in the west of the geographical area since the end of the Middle Ages. These were exported to northern Europe from the 17th century.
The successive arrival of powdery mildew, downy mildew and phylloxera, as well as the high demand for wine for distillation into Armagnac, resulted in a significant reduction in the areas of vines intended for the production of quality wines, which lost ground to ‘Piquepoules’, low vines used for the production of wines for distillation.
Finally, the mechanisation of agriculture in the middle of the 20th century led to an expansion of areas under maize and exacerbated the decline in wine-growing areas.
The first association to defend ‘Saint-Mont’ wines was set up in 1957. It initiated the renewal, in 1970, of a vineyard based on local vine varieties such as the red Tannat N, Cabernet Franc N, Cabernet-Sauvignon N and Fer N and the white Arrufiac B, Courbu B, Gros Manseng B and Petit Manseng B varieties.
The ‘Saint-Mont’ registered designation of origin was recognised in 2011. 22.1.2021 EN Offi cial Jour nal of the European Union C 24/45
The red wines have an intense colour. On the palate the taste is usually characterised by a good aromatic concentration revealing notes of red and black fruit. The tannin structure gives these wines a good storage potential, allowing them to acquire complex aromas of candied fruit and spices, often combined with woody tones from ageing in barrels. The rosé wines have a colour that is sometimes intense and the nose is usually characterised by notes of red fruit. On the palate their lively aftertaste makes the wines harmonious and gives them a good balance between richness and acidity. The white wines are very aromatic, rich and balanced thanks to the presence of the Gros Manseng B variety. The vineyards are located on the most favourable plots, grouped into islands of cultivation spread over well-oriented slopes with low mineral content and well-drained soils. The geographical area is in the Adour river basin, with the stock of vines dominated by the Tannat N variety and the Gros Manseng B and Petit Manseng B varieties, which are particularly suited to the rather damp climate of the geographical area and to the deep soils. However, their position at a crossroads between several wine-growing regions has enriched the vineyards with inputs from the surrounding regions and more particularly in relation to their plant heritage and the Garonne river basin trio of Cabernet Franc N, Cabernet-Sauvignon N and Merlot N, the establishment of which is also facilitated by the oceanic climate. The practices implemented by producers have led to the compulsory manual harvesting of varieties intended for the production of red wines. A period of post-fermentation ageing in the tank was introduced to produce a wine with complex aromas, and above all to ensure that the tannins become round and silky. This means that the wines are aged until at least 1 March in the year following the harvest.
9. Essential further conditions (packaging, labelling, other requirements) Legal framework: National legislation Type of further condition: Additional provisions relating to labelling Description of the condition: The ‘AOC Saint-Mont’ designation may be supplemented with the name of the larger geographical unit, ‘Sud-Ouest’ [South-West], in line with the provisions of the specification.
Link to the product specification
https://info.agriculture.gouv.fr/gedei/site/bo-agri/document_administratif-81a8636c-9714-494d-aae4-be44e3f2820d C 24/46 EN Offi cial Jour nal of the European Union 22.1.2021
Notice to undertakings intending to place hydrofluorocarbons in bulk on the market in the European Union in 2022
(2021/C 24/19)
1. This Notice is addressed to any undertaking wishing to make a declaration to place hydrofluorocarbons in bulk on the market in the Union in 2022, in accordance with Articles 16(2) and 16(4) of Regulation (EU) No 517/2014 of the European Parliament and of the Council (1) (hereafter ‘the Regulation’).
2. Hydrofluorocarbons means substances listed in Section 1 of Annex I to the Regulation, or mixtures containing any of these substances:
HFC-23, HFC-32, HFC-41, HFC-125, HFC-134, HFC-134a, HFC-143, HFC-143a, HFC-152, HFC-152a, HFC-161, HFC-227ea, HFC-236cb, HFC-236ea, HFC-236fa, HFC-245ca, HFC-245fa, HFC-365mfc, HFC-43-10mee.
3. Any placing on the market of these substances, except for the uses listed in Article 15(2) points (a) to (f) of the Regulation or a total annual quantity of these substances of less than 100 tonnes of CO2 equivalent per year, is subject to quantitative limits under the quota system laid down in Articles 15 and 16 as well as Annexes V and VI to the Regulation.
4. Importers must at the time of release for free circulation of HFCs have a valid registration as importers of bulk HFCs in the ‘F-Gas Portal and HFC Licensing System’ (2) in accordance with Commission Implementing Regulation (EU) 2019/661 (3). Such a registration is considered an obligatory licence for import. A similar licence is needed for exporting HFCs (4).
5. Importers should be specified as ‘Consignee’ (box 8) on the Single Administrative Document (SAD). Importers are strongly encouraged to specify the amounts of HFCs in CO2 equivalents at the time of release for free circulation directly in the SAD (box 44) as this may greatly facilitate the custom clearance of their goods and establishment of their compliance with Regulation (EU) No 517/2014.
6. According to Annex VI to the Regulation, the sum of the quotas allocated on the basis of reference values is subtracted from the maximum quantity available for 2022 to determine the quantity to be allocated from this reserve.
7. All data submitted by companies, quotas and reference values are stored in the electronic ‘F-Gas Portal and HFC Licensing System’. All data in the F-Gas Portal and HFC Licensing System including quotas, reference values, commercial and personal data will be treated as confidential by the European Commission.
8. Undertakings wishing to obtain quota from this reserve need to follow the procedure described in points 9 to 12 of this Notice.
9. According to Articles 16(2) and 17(1) of the Regulation, the undertaking needs to have a valid registration profile, approved by the Commission in accordance with Implementing Regulation (EU) 2019/661, as a producer and/or importer of hydrofluorocarbons in the online ‘F-gas Portal and HFC Licensing System’. In order to ensure due treatment of the application for registration, including the possible need for additional information, such an
(1) Regulation (EU) No 517/2014 of the European Parliament and of the Council of 16 April 2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006 (OJ L 150, 20.5.2014, p. 195). (2) The registry set up in accordance with Article 17 of Regulation (EU) 517/2014: https://webgate.ec.europa.eu/ods2/resources/domain (3) Commission Implementing Regulation (EU) 2019/661 of 25 April 2019 ensuring the smooth functioning of the electronic registry for quotas for placing hydrofluorocarbons on the market (OJ L 112, 26.4.2019, p. 11). (4) See also Article 1.2 of Commission Implementing Regulation (EU) 2017/1375 (OJ L 194, 26.7.2017, p. 4). 22.1.2021 EN Offi cial Jour nal of the European Union C 24/47
application must be made at the very latest two weeks before the start of the declaration period, i.e. before 1 March 2021 (see point 10). For any applications received after this deadline it cannot be ensured that a final decision on the application for registration can be made before the end of the declaration period (see point 11). For companies that are not yet registered, guidance on how to register is available on the DG CLIMA website (5).
10. The undertaking must make a declaration on anticipated quantities for 2022 in the ‘F-Gas Portal and HFC Licensing System’ in the declaration period from 15 March to 15 April 2021, 13.00 CET.
11. Only duly completed declarations that are free of errors and received before 15 April 2021, 13.00 CET will be considered as valid by the Commission.
12. Based on these declarations, the Commission will allocate quota to these undertakings in accordance with Article 16(2), 16(4) and 16(5) as well as Annexes V and VI to the Regulation.
13. Article 7 of Implementing Regulation (EU) 2019/661 stipulates that for the purpose of the quota allocation for placing hydrofluorocarbons on the market pursuant to Article 16(5) of Regulation (EU) No 517/2014, all undertakings with the same beneficial owner(s) shall be considered as one single declarant in accordance with Article 16(2) and (4) of the Regulation.
14. The Commission will inform the undertakings about the total allocated quota for 2022 via the ‘F-Gas Portal & HFC Licensing System’.
15. The registration in the ‘F-Gas Portal & HFC Licensing System’ and/or a declaration on intention to place hydrofluor ocarbons on the market in 2022 by itself does not give any right to place hydrofluorocarbons on the market in 2022.
(5) https://ec.europa.eu/clima/sites/clima/files/f-gas/docs/guidance_document_en.pdf C 24/48 EN Offi cial Jour nal of the European Union 22.1.2021
INFORMATION NOTICE — PUBLIC CONSULTATION Geographical indications proposed by Indonesia to be protected in the EU
(2021/C 24/20)
Within the framework of negotiations with Indonesia for a Comprehensive Economic Partnership Agreement (hereafter ‘the Agreement’) including a chapter on geographical indications, the authorities of Indonesia have presented, for protection under the Agreement, a third batch of two (2) geographical indications. The European Commission is currently considering whether these Geographical Indications shall be protected under the future Agreement as Geographical Indications within the meaning of Article 22(1) of the Agreement on Trade-Related Aspects of Intellectual Property Rights.
The Commission invites any Member State or third country or any natural or legal person having a legitimate interest, resident or established in a Member State or in a third country, to submit oppositions to such protection by lodging a duly substantiated statement.
Statements of opposition must reach the Commission within two months of the date of publication of this notice. Statements of opposition should be sent to the following e-mail address: [email protected]
Statements of opposition shall be examined only if they are received within the time-limit set out above and if they show that the protection of the name proposed would: (a) conflict with the name of a plant variety or an animal breed and as a result is likely to mislead the consumer as to the true origin of the product; (b) be wholly or partially homonymous with that of a name already protected in the Union under Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (1), or with one of the geographical indications from non-EU countries protected in the EU under bilateral agreements publicly available at the following address: https://ec.europa.eu/info/sites/info/files/food-farming-fisheries/food_safety_and_quality/documents/list-gis-non-eu- countries-protected-in-eu_en.pdf (c) in the light of a trade mark’s reputation and renown and the length of time it has been used, be liable to mislead the consumer as to the true identity of the product; (d) jeopardise the existence of an entirely or partly identical name or of a trade mark or the existence of products which have been legally on the market for at least five years preceding the date of the publication of this notice. (e) or if they can give details from which it can be concluded that the name for which protection is considered is generic.
The criteria referred to above shall be evaluated in relation to the territory of the Union, which in the case of intellectual property rights refers only to the territory or territories where the said rights are protected. The possible protection of these names in the European Union is subject to the successful conclusion of these negotiations and subsequent legal act.
List of Geographical Indications (2)
Geographical indications proposed by Indonesia to be protected in Product category the EU Kopi Robusta Pagar Alam Other products of Annex I of the Treaty (spices etc.) - Coffee Salak Sibetan Karangasem Bali Fruits, vegetables and cereals, fresh or processed – Snake Fruit
(1) OJ L 343, 14.12.2012, p. 1. (2) Names provided by the authorities of Indonesia in the framework of the negotiations, and registered in Indonesia.
ISSN 1977-091X (electronic edition) ISSN 1725-2423 (paper edition)
EN