# Official Journal C 138/2008

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 138 |
| | |
| English edition | Information and Notices | Volume 515 June 2008 |

ISSN 1725-2423

Official Journal

of the European Union

C 138

English edition

Information and Notices

Volume 515 June 2008

---

| Notice No | Contents | page |
| --- | --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2008/C 138/01 | Non-opposition to a notified concentration (Case COMP/M.5113 — Abe Investment/Getty) (
  1
  ) | 1 |
| 2008/C 138/02 | Non-opposition to a notified concentration (Case COMP/M.4900 — Solvay/Sibur/JV) (
  1
  ) | 1 |

Notice No

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2008/C 138/01

Non-opposition to a notified concentration (Case COMP/M.5113 — Abe Investment/Getty) (
  1
  )

1

1

2008/C 138/02

Non-opposition to a notified concentration (Case COMP/M.4900 — Solvay/Sibur/JV) (
  1
  )

1

1

| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2008/C 138/03 | Euro exchange rates | 2 |
| 2008/C 138/04 | Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 411th meeting on 3 July 2006 concerning a draft decision relating to Case COMP/C-3/37.792 — Microsoft | 3 |
| 2008/C 138/05 | Final report of the Hearing Officer in Case COMP/C-3/37.792 — Microsoft (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21) | 4 |
| 2008/C 138/06 | Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 412th meeting on 10 July 2006 concerning a draft decision relating to Case COMP/C-3/37.792 — Microsoft | 9 |
| 2008/C 138/07 | Summary of Commission Decision of 12 July 2006 fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corporation by Decision C(2005) 4420 final and amending that Decision as regards the amount of the periodic penalty payment (Case COMP/C-3/37.792 — Microsoft) (notified under document number C(2006) 3143) | 10 |
| | NOTICES FROM MEMBER STATES |
| 2008/C 138/08 | Information communicated by Member States regarding State aid granted under Commission Regulation (EC) No 1628/2006 on the application of Articles 87 and 88 of the EC Treaty to national regional investment aid (
  1
  ) | 15 |
| 2008/C 138/09 | List of ports where landing or transhipping is allowed of frozen fish caught by third-country fishing vessels in the North-East Atlantic Fisheries Convention Area | 18 |
| | NOTICES CONCERNING THE EUROPEAN ECONOMIC AREA |
| | EFTA Surveillance Authority |
| 2008/C 138/10 | Communication from the EFTA Surveillance Authority under to Article 4(1)(a) of the Act referred to in point 64(a) of Annex XIII to the EEA Agreement (Council Regulation (EEC) No 2408/92 on access for Community air carriers to intra-Community air routes) — Imposition of new public service obligations in respect of scheduled air services on the route Værøy (heliport)-Bodø v.v. | 20 |
| 2008/C 138/11 | Invitation to submit comments pursuant to Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement on State aid with regard to the property transactions engaged in by the municipality of Time concerning property numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 in Time | 30 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2008/C 138/03

Euro exchange rates

2

2008/C 138/04

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 411th meeting on 3 July 2006 concerning a draft decision relating to Case COMP/C-3/37.792 — Microsoft

3

2008/C 138/05

Final report of the Hearing Officer in Case COMP/C-3/37.792 — Microsoft (Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

4

2008/C 138/06

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 412th meeting on 10 July 2006 concerning a draft decision relating to Case COMP/C-3/37.792 — Microsoft

9

2008/C 138/07

Summary of Commission Decision of 12 July 2006 fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corporation by Decision C(2005) 4420 final and amending that Decision as regards the amount of the periodic penalty payment (Case COMP/C-3/37.792 — Microsoft) (notified under document number C(2006) 3143)

(notified under document number C(2006) 3143)

10

NOTICES FROM MEMBER STATES

2008/C 138/08

Information communicated by Member States regarding State aid granted under Commission Regulation (EC) No 1628/2006 on the application of Articles 87 and 88 of the EC Treaty to national regional investment aid (
  1
  )

1

15

2008/C 138/09

List of ports where landing or transhipping is allowed of frozen fish caught by third-country fishing vessels in the North-East Atlantic Fisheries Convention Area

18

NOTICES CONCERNING THE EUROPEAN ECONOMIC AREA

EFTA Surveillance Authority

2008/C 138/10

Communication from the EFTA Surveillance Authority under to Article 4(1)(a) of the Act referred to in point 64(a) of Annex XIII to the EEA Agreement (Council Regulation (EEC) No 2408/92 on access for Community air carriers to intra-Community air routes) — Imposition of new public service obligations in respect of scheduled air services on the route Værøy (heliport)-Bodø v.v.

20

2008/C 138/11

Invitation to submit comments pursuant to Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement on State aid with regard to the property transactions engaged in by the municipality of Time concerning property numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 in Time

30

| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY |
| | Commission |
| 2008/C 138/12 | Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and Thailand and a partial interim review of the anti-dumping measures applicable to imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and those consigned from Taiwan, whether declared as originating in Taiwan or not | 42 |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY |
| | Commission |
| 2008/C 138/13 | Prior notification of a concentration (Case COMP/M.5114 — Pernod Ricard/V&S) (
  1
  ) | 48 |
| 2008/C 138/14 | Prior notification of a concentration (Case COMP/M.5179 — Eramet/Tinfos) (
  1
  ) | 49 |
| 2008/C 138/15 | Prior notification of a concentration (Case COMP/M.5163 — DPWL/ZIM/CONTARSA) — Candidate case for simplified procedure (
  1
  ) | 50 |
| 2008/C 138/16 | Prior notification of a concentration (Case COMP/M.5020 — Lesaffre/GBI UK) (
  1
  ) | 51 |
| 2008/C 138/17 | Prior notification of a concentration (Case COMP/M.4985 — BHP Billiton/Rio Tinto) (
  1
  ) | 52 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY

Commission

2008/C 138/12

Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and Thailand and a partial interim review of the anti-dumping measures applicable to imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and those consigned from Taiwan, whether declared as originating in Taiwan or not

42

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY

Commission

2008/C 138/13

Prior notification of a concentration (Case COMP/M.5114 — Pernod Ricard/V&S) (
  1
  )

1

48

2008/C 138/14

Prior notification of a concentration (Case COMP/M.5179 — Eramet/Tinfos) (
  1
  )

1

49

2008/C 138/15

Prior notification of a concentration (Case COMP/M.5163 — DPWL/ZIM/CONTARSA) — Candidate case for simplified procedure (
  1
  )

1

50

2008/C 138/16

Prior notification of a concentration (Case COMP/M.5020 — Lesaffre/GBI UK) (
  1
  )

1

51

2008/C 138/17

Prior notification of a concentration (Case COMP/M.4985 — BHP Billiton/Rio Tinto) (
  1
  )

1

52

| | |
| --- | --- |
| | (1)   Text with EEA relevance |

---

(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

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II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 5.6.2008 | EN | Official Journal of the European Union | C 138/1 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/1

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Non-opposition to a notified concentration

(Case COMP/M.5113 — Abe Investment/Getty)

(Text with EEA relevance)

(2008/C 138/01)

On 6 May 2008, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. 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:

| — | from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

from the Europa competition website (http://ec.europa.eu/comm/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 under document number 32008M5113. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu). |
| --- | --- |

—

in electronic form on the EUR-Lex website under document number 32008M5113. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu).

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| 5.6.2008 | EN | Official Journal of the European Union | C 138/1 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/1

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Non-opposition to a notified concentration

(Case COMP/M.4900 — Solvay/Sibur/JV)

(Text with EEA relevance)

(2008/C 138/02)

On 16 May 2008, the Commission decided not to oppose the above notified concentration and to declare it compatible with the common market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004. 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:

| — | from the Europa competition website (http://ec.europa.eu/comm/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

from the Europa competition website (http://ec.europa.eu/comm/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 under document number 32008M4900. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu). |
| --- | --- |

—

in electronic form on the EUR-Lex website under document number 32008M4900. EUR-Lex is the on-line access to European law (http://eur-lex.europa.eu).

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 5.6.2008 | EN | Official Journal of the European Union | C 138/2 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/2

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Euro exchange rates (1)

4 June 2008

(2008/C 138/03)

1 euro=

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,5466 |
| JPY | Japanese yen | 161,82 |
| DKK | Danish krone | 7,4586 |
| GBP | Pound sterling | 0,7902 |
| SEK | Swedish krona | 9,3448 |
| CHF | Swiss franc | 1,6037 |
| ISK | Iceland króna | 119,48 |
| NOK | Norwegian krone | 7,9755 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 24,67 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 242,7 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,7006 |
| PLN | Polish zloty | 3,3763 |
| RON | Romanian leu | 3,6276 |
| SKK | Slovak koruna | 30,325 |
| TRY | Turkish lira | 1,92 |
| AUD | Australian dollar | 1,61 |
| CAD | Canadian dollar | 1,561 |
| HKD | Hong Kong dollar | 12,0754 |
| NZD | New Zealand dollar | 1,974 |
| SGD | Singapore dollar | 2,1081 |
| KRW | South Korean won | 1 575,99 |
| ZAR | South African rand | 12,0403 |
| CNY | Chinese yuan renminbi | 10,7319 |
| HRK | Croatian kuna | 7,2497 |
| IDR | Indonesian rupiah | 14 407,35 |
| MYR | Malaysian ringgit | 5,0179 |
| PHP | Philippine peso | 67,996 |
| RUB | Russian rouble | 36,75 |
| THB | Thai baht | 50,574 |
| BRL | Brazilian real | 2,5271 |
| MXN | Mexican peso | 15,9609 |

Currency

Exchange rate

USD

US dollar

1,5466

JPY

Japanese yen

161,82

DKK

Danish krone

7,4586

GBP

Pound sterling

0,7902

SEK

Swedish krona

9,3448

CHF

Swiss franc

1,6037

ISK

Iceland króna

119,48

NOK

Norwegian krone

7,9755

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

24,67

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

242,7

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,7006

PLN

Polish zloty

3,3763

RON

Romanian leu

3,6276

SKK

Slovak koruna

30,325

TRY

Turkish lira

1,92

AUD

Australian dollar

1,61

CAD

Canadian dollar

1,561

HKD

Hong Kong dollar

12,0754

NZD

New Zealand dollar

1,974

SGD

Singapore dollar

2,1081

KRW

South Korean won

1 575,99

ZAR

South African rand

12,0403

CNY

Chinese yuan renminbi

10,7319

HRK

Croatian kuna

7,2497

IDR

Indonesian rupiah

14 407,35

MYR

Malaysian ringgit

5,0179

PHP

Philippine peso

67,996

RUB

Russian rouble

36,75

THB

Thai baht

50,574

BRL

Brazilian real

2,5271

MXN

Mexican peso

15,9609

---

(1)

Source: reference exchange rate published by the ECB.

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| 5.6.2008 | EN | Official Journal of the European Union | C 138/3 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/3

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Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 411th meeting on 3 July 2006 concerning a draft decision relating to Case COMP/C-3/37.792 — Microsoft

(2008/C 138/04)

| 1. | The Advisory Committee agrees, on the basis of the Trustee's reports and the Commission's analysis, that the entirety of the materials (1) that Microsoft has submitted up to 15 December 2005 at midnight does not correspond to complete and accurate technical documentation and that, therefore, Microsoft has not complied with the disclosure order laid down in Articles 5(a) and (c) of the 24 March 2004 Decision. |
| --- | --- |

1.

The Advisory Committee agrees, on the basis of the Trustee's reports and the Commission's analysis, that the entirety of the materials (1) that Microsoft has submitted up to 15 December 2005 at midnight does not correspond to complete and accurate technical documentation and that, therefore, Microsoft has not complied with the disclosure order laid down in Articles 5(a) and (c) of the 24 March 2004 Decision.

| 2. | The Advisory Committee agrees with the Commission when the latter states that it was well founded to send a Statement of Objections to Microsoft on 21 December 2005 after having examined all the documents submitted by Microsoft within the deadline laid down in the 10 November 2005 decision, i.e. by 15 December 2005. |
| --- | --- |

2.

The Advisory Committee agrees with the Commission when the latter states that it was well founded to send a Statement of Objections to Microsoft on 21 December 2005 after having examined all the documents submitted by Microsoft within the deadline laid down in the 10 November 2005 decision, i.e. by 15 December 2005.

| 3. | The Advisory Committee agrees with the Commission (2) when the latter, on the basis of the reports from the Trustee and the Commission's experts, considers that, Microsoft, over the period 16 December 2005-20 June 2006 has not satisfied the obligation which the periodic penalty payment was intended to enforce (i.e. it has not provided the technical documentation which is conformity with what is required under the disclosure order laid down in Articles 5(a) and (c) of the 24 March 2004 Decision. |
| --- | --- |

3.

The Advisory Committee agrees with the Commission (2) when the latter, on the basis of the reports from the Trustee and the Commission's experts, considers that, Microsoft, over the period 16 December 2005-20 June 2006 has not satisfied the obligation which the periodic penalty payment was intended to enforce (i.e. it has not provided the technical documentation which is conformity with what is required under the disclosure order laid down in Articles 5(a) and (c) of the 24 March 2004 Decision.

| 4. | The Advisory Committee agrees that the Commission can, when applying Article 24(2) of Regulation (EC) No 1/2003, fix the definitive amount of the periodic penalty payment for a relevant period of time, before Microsoft has satisfied the obligation laid down in Articles 5(a) and (c) of the 24 March 2004 Decision. |
| --- | --- |

4.

The Advisory Committee agrees that the Commission can, when applying Article 24(2) of Regulation (EC) No 1/2003, fix the definitive amount of the periodic penalty payment for a relevant period of time, before Microsoft has satisfied the obligation laid down in Articles 5(a) and (c) of the 24 March 2004 Decision.

| 5. | The Advisory Committee agrees with the Commission in considering the period between 16 December 2005 and 20 June 2006 as the relevant period of time. |
| --- | --- |

5.

The Advisory Committee agrees with the Commission in considering the period between 16 December 2005 and 20 June 2006 as the relevant period of time.

| 6. | The Advisory Committee asks the Commission to take into account all the other points raised during the discussion. |
| --- | --- |

6.

The Advisory Committee asks the Commission to take into account all the other points raised during the discussion.

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(1)  Consisting of the versions of the documentation of December 2004, August 2005 and November 2005, and the letter of 15 December 2005 with Annexes.

(2)  The Commission summarises its position in recitals 232 and 233 of the draft decision.

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| 5.6.2008 | EN | Official Journal of the European Union | C 138/4 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/4

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Final report of the Hearing Officer in Case COMP/C-3/37.792 — Microsoft

(Pursuant to Articles 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2008/C 138/05)

The draft decision in this case gives rise to the following observations:

The Article 24(1) procedure based on the final decision of 24 March 2004

On 24 March 2004, the Commission adopted a decision in a proceeding pursuant to Article 82 of the EC Treaty (Case COMP/C-3/37.792) addressed to Microsoft Corporation (‘Microsoft’). In this decision (‘the Final Decision’), the Commission found, inter alia, that Microsoft had infringed Article 82 of the EC Treaty (‘Article 82’) and Article 54 of the EEA Agreement by refusing, from October 1998 until the date of the Decision, to disclose certain specified ‘Interoperability Information’ to vendors of work group server operating system products, so that they could develop and distribute such products (1).

On 10 November 2005, the Commission adopted a Decision pursuant to Article 24(1) of Regulation (EC) No 1/2003 (the ‘Article 24(1) Decision’). Article 1 of this Decision orders that ‘Microsoft Corporation shall ensure that, by 15 December 2005, it fully complies with the obligations set out in Article 5(a) and (c) of the Final Decision. In the absence of such compliance, a periodic penalty payment of EUR 2 million per day, calculated from that date, shall be imposed on Microsoft Corporation’.

The Article 24(1) Decision identified two instances where Microsoft failed to comply with its obligations under Article 5(a) and (c) of the Final Decision. This proceeding solely concerns the allegation that Microsoft has failed to provide complete and accurate technical documentation embodying the Interoperability Information it was ordered to provide under the Final Decision.

Measures taken by Microsoft to provide complete and accurate technical documentation and the Commission's reactions

On 14 December 2004, Microsoft sent a technical documentation (specifications) that Microsoft had prepared for the relevant protocols (‘Technical Documentation’) to the Commission. OTR, the Commission's external technical experts, reviewed this Technical Documentation and provided a negative report (‘the first OTR report’) as regards its completeness, accuracy and fitness for purpose. On 15 June 2005, the Commission services sent the first OTR report to Microsoft for comments. Microsoft provided its response to the first OTR report on 8 July 2005.

By decision of 28 July 2005, the Commission established a monitoring mechanism by providing for the appointment, functions and obligations of a Monitoring Trustee. The Trustee's function is to assist the Commission in overseeing compliance with the Final Decision (2). On 5 October 2005, the Commission chose one person from a shortlist of four experts submitted by Microsoft, as Monitoring Trustee.

In response to the concerns raised in the first OTR report on the information in the Technical Documentation, Microsoft provided an updated version of the Technical Documentation to the Commission services on 8 August 2005.

This version of the Technical Documentation was also reviewed by OTR. OTR provided an updated report on the completeness and accuracy of the Technical Documentation which maintained OTR's negative view.

In order to fulfil its obligations under Article 5(c) of the Final Decision, Microsoft has made an Evaluation Agreement available to interested undertakings. Four companies (Novell, IBM, Oracle and Sun) have to date entered into three-day evaluation agreements with Microsoft. The Commission services have requested these companies to submit both a detailed description of how the evaluation took place on-site, and an assessment of whether the Technical Documentation examined in the course of the evaluation provides complete and accurate specifications for the protocols covered by the Decision, as well as their views on the value of the technology disclosed through the Technical Documentation.

In response to two Commission's requests (one in September/October 2005 and another one in March 2006), Novell, IBM, Oracle and Sun provided critical comments as to the adequacy and sufficiency of the Technical Documentation provided.

On 11 and 23 November 2005, Microsoft submitted a revised Technical Documentation (‘the November 2005 Technical Documentation’). On 30 November 2005, the Trustee submitted a Preliminary Report on Microsoft's revised Technical Documentation, which was sent to Microsoft. On 15 December 2005, the Trustee submitted its Final Report on the November 2005 Technical Documentation.

On 15 December 2005, Microsoft submitted a response to the Trustee's Preliminary Report and announced that a further revised Technical Documentation (‘the 15 December 2005 Technical Documentation’) was available in Redmond. This third version of the Technical Documentation, which was not received by the Commission before 26 December 2005, was commented on in a report drawn up by the Trustee on 3 March 2006.

The Statement of Objections

On 21 December 2005, the Commission submitted a Statement of Objections to Microsoft, expressing its preliminary views that the revised Technical Documentation submitted on 11 and 23 November 2005 was still insufficient to comply with Microsoft's obligations under Article 5(a) and (c) of the Final Decision. The Statement of Objections also referred to the third version of the technical documentation, by making the point that that the changes in the 15 December 2005 version of the Technical Documentation were essentially limited to the formatting. The Commission concluded that the 15 December 2005 version of the Technical Documentation did not remedy the shortcomings identified in the previous versions. The Trustee's Reports were annexed to the Statement of Objections.

Microsoft was asked to respond by 31 January 2006. Upon Microsoft's request, I extended this deadline until 15 February 2006, in particular in order to allow Microsoft's outside experts to elaborate reasoned opinions on the criticism voiced by the Commission. This extended deadline was complied with.

At the oral hearing and in their written response, Microsoft claimed that the Statement of Objections was fundamentally flawed because it did not take sufficient account of the Technical Documentation announced by Microsoft on 15 December 2005. As Microsoft had informed the Commission that the Technical Documentation would be ready for inspection as of 15 December, the Commission should have waited until a copy of the Technical Documentation arrived in Brussels rather than issuing the Statement of Objections before.

I do not share Microsoft's view that the Statement of Objections was flawed. As acknowledged by the case law, a Statement of Objections is a document stating preliminary findings. Until a decision has been adopted, the Commission may alter or supplement its position expressed therein provided that it affords the undertakings concerned the opportunity of making known their views in that respect (3). In the letter of facts issued on 10 March 2006 (see below), Microsoft was duly informed of the Commission's assessment as to the third version of the Technical Documentation submitted by Microsoft and was given sufficient time to state their views. Accordingly, in my view, Microsoft cannot claim a breach of their rights with regard to the issuance of the Statement of Objections.

Microsoft's further submissions and the ‘letter of facts’

On 25 January 2006, Microsoft offered to licensees of the Technical Documentation access to Windows source code by means of a source code reference licence.

On 30 January 2006, Microsoft handed over a fourth version of the Technical Documentation to the relevant Commission services.

On 10 March 2006, the Commission submitted a document (‘letter of facts’) to Microsoft explaining that the 15 December 2005 version of the Technical Documentation was considered to be insufficient to comply with the Final Decision. Furthermore, Microsoft was informed that the source code disclosures were considered to be irrelevant for Microsoft's obligations under Article 5(a) and (c) of the Final Decision. A report drawn up by the Trustee addressing the third version of the Technical Documentation and a report drawn up by TAEUS addressing the fourth version of the Technical Documentation, albeit only by examining the specifications of one of the protocols, were annexed.

Microsoft was given the opportunity to comment on the letter of facts within two weeks.

By letter of 14 March 2006 Microsoft took the view that the letter of facts set forth new allegations and therefore constituted a supplementary statement of objections, the issuance of which would require a deadline to reply of four weeks. In particular, Microsoft considered that the assertion contained in the letter of facts according to which the third version of the Technical Documentation did not comply with Articles 5(a) and (c) of the Commission decision of 24 March 2004, constituted a new allegation.

In my response of 17 March 2006, I stated that I did not share Microsoft's view that the Commission's letter of facts set out objections not contained in the Commission's Statement of Objections. In my view, addressing in more detail the 15 December 2005 version of the Technical Documentation did not amount to raising new objections against Microsoft but rather maintained the existing objections in the light of new facts. Accordingly, I did not accede to Microsoft's requests. However, in particular with a view to allowing Microsoft to focus on the preparation of the oral hearing in the ensuing days, both with regard to the Statement of Objections and with regard to the letter of facts, I did not require that Microsoft provide a written submission to the letter of facts prior to the oral hearing, and granted Microsoft until two weeks after the oral hearing, i.e., until 14 April 2006, to submit written comments on the letter of facts. This deadline was complied with.

Microsoft's further submissions and the Commission's second letter of facts

On 11 April 2006, Microsoft submitted a further revised version of the Technical Documentation.

Following a meeting between the Trustee and representatives from Microsoft and the Commission on 7 and 8 April 2006 and a letter by the Member of the Commission responsible for Competition to Microsoft's Chief Executive Officer of 13 April 2006, Microsoft provided the Trustee on 22 April 2006 with a work plan for the delivery of complete and accurate Technical Documentation. This work plan foresees that a revised Technical Documentation for the bulk of the protocols described therein will be delivered by 30 June 2006 and that the Technical Documentation for the remaining protocols described therein will be delivered by 18 July 2006.

On 15 May 2006, the Trustee submitted two reports: one providing comments on the reports from Microsoft's technical experts, that were enclosed with Microsoft's letter of 14 April 2006 and a second report providing an assessment of the completeness and accuracy of the Technical Documentation submitted by Microsoft on 11 April 2006.

On 15 May 2006, TAEUS submitted a report providing an assessment of the completeness and accuracy of this documentation and providing comments on the reports of Microsoft's expert. This report was submitted to Microsoft on 19 May 2006 together with the 15 May 2006 Trustee report and the Trustee's Report on the Technical Documentation submitted by Microsoft on 11 April 2006. With the same letter the Commission informed Microsoft of its assessment that the objections raised on 21 December 2005 as regards the completeness and accuracy of the Technical Documentation had not been addressed and thus remained valid. The Commission invited Microsoft to submit comments within two weeks from receipt thereof.

On 23 May 2006, Microsoft requested that the deadline to respond to the Commission's 19 May 2006 letter be extended by two weeks.

On 30 May 2006, I agreed to extend the deadline for Microsoft to respond to the Commission's 19 May 2006 letter until 9 June 2006.

On 9 June 2006, Microsoft responded to the 19 May 2006 letter. This response included two further reports of Microsoft's technical experts.

Access to file

Subsequent to issuing the Statement of Objections, Microsoft was granted access to file on 23 December 2005. By letters of 24 December 2005 and 2 January 2006 and in a meeting at the Hearing Officer's office on 6 January 2006, Microsoft requested further access to the Commission's file. This request for access to file also covered the correspondence between the Commission on the one hand and OTR and the Monitoring Trustee on the other hand.

By letter of 13 January 2006, I did not accede to Microsoft's request for access to the correspondence with OTR and the Monitoring Trustee. Following detailed correspondence with Microsoft on the issue, I considered this correspondence to be internal. However, I checked carefully whether access to the items of the correspondence could have been necessary for the adequate understanding of the methodology or the proper technical verification of the Trustee's report or otherwise indispensable for Microsoft's defence. As this could not be excluded for a ‘Sufficiency Test’ undertaken by the Monitoring Trustee, I decided to grant access to this document. Furthermore, in order to allow Microsoft to verify the Commission services' selection of accessible documents, I ensured that Microsoft was provided with a descriptive list of all documents yet undisclosed which were potentially related to the Statement of Objections.

By letter of 17 January 2006, Microsoft requested access to all documents relating to the Commission's contacts with the four companies that had replied to the Commission's market test (Novell, IBM, Oracle and Sun) as well as any other third party that the Commission has dealt with in this context. Although these third parties' submissions had been classified confidential in the first place, all information providers waived their right to confidentiality with regard to their documents on the list provided to Microsoft. Accordingly, the documents were made accessible. As some of the waivers were explicitly made on the condition that Microsoft would not disseminate the information to persons other than Microsoft's counsel or staff directly connected with the present, I informed Microsoft accordingly. Subsequently, some information providers complained that Microsoft had misused the information for purposes other than Microsoft's defence in the current proceedings, in particular by presenting the information on Microsoft's webpage. Microsoft was given the opportunity to comment on these complaints. Finally, I also granted access to one piece of correspondence that OTR and the Monitoring Trustee had had with third parties.

By letter of 2 March 2006 to me, Microsoft requested access to any material that information providers, notably Sun, IBM, and Oracle had submitted directly to the Trustee and OTR. Although these documents were not in the Commission's file at the time of Microsoft's request, the relevant Commission services agreed to request such correspondence from the Trustee (OTR having informed the Commission that no written exchanges with third parties existed). Apart from a few documents which were considered confidential and unrelated, Microsoft was provided with this information.

By letter of 22 March 2006, Microsoft requested access to answers that the Commission services had received from third companies in response to Article 18 requests. I ensured that access was provided as soon as the third parties' confidentiality requests had been addressed. In the same letter, Microsoft requested access to the correspondence between the Commission and its new expert, TAEUS. As I considered this correspondence to be internal, I did not accede to Microsoft's request. However, I verified that the pieces of correspondence were not indispensable for verifying the technical correctness of the reports drawn up by TAEUS or to understand the methodology used. Microsoft also assumed that there was further correspondence between the Commission services and interested third parties. I informed Microsoft that this was not the case.

By letter of 23 May 2006, Microsoft requested access to further correspondence between the Commission on the one hand and the Trustee and TAEUS on the other and requested access to an updated list of communications between the Commission and third parties and copies of the non-confidential versions of such communications.

In my response of 2 June 2006, I reaffirmed my position that Microsoft was not entitled to access the internal correspondence between the Commission on the one hand and TAEUS or the Trustee on the other hand. However, I verified carefully that the correspondence did not contain items which are indispensable for Microsoft's defence. Furthermore, I ensured that Microsoft was sent an updated list of communications between the Commission and third parties and with a full copy of the communications that were not confidential but related to the objections raised against Microsoft in these proceedings.

The Oral Hearing

In their submission of 15 February 2006, Microsoft requested a public oral hearing. In my letter of 23 February 2006, I pointed out that, according to the clear wording of Article 14(6) Regulation (EC) No 773/2004, oral hearings could not be public. As this provision was not only in Microsoft's interest, but also in the interest of other participants in the hearing and in the interest of the procedure (inter alia to maintain the serenity of the debate), I took the view that Microsoft's request could not allow me to depart from a long-standing rule which had ensured that oral hearings have taken place in a constructive and productive atmosphere over the past 40 years.

As I rejected Microsoft's request for a postponement, the oral hearing took place on 30 and 31 March 2006.

In addition to Microsoft, nine interested third parties attended the Hearing and gave presentations.

No constraints were placed on Microsoft as to the scope of their submissions at the oral hearing. In addition they were permitted virtually all their requested speaking time. Given the number of third parties involved, some were required to reduce their initial speaking time requests. An overall balance was maintained between Microsoft and third parties. Microsoft was permitted to respond to third party comments at the final stage of the hearing.

The oral hearing was essentially held on the basis of the information provided by Microsoft on 26 December 2005 (third version of the Technical Documentation). However, I did not intervene when Microsoft's fourth version of the Technical Documentation submitted on 30 January 2006 was addressed as this submission had been touched upon in the TAEUS report attached to the Commission's letter of facts of 10 March 2006.

The draft final decision

In my view, the draft final decision contains no elements of law that had not been set out in the Statement of Objections and no elements of fact that had not been set out either in the Statement of Objections or in the letters of facts.

In the light of the above, I consider that the right to be heard of Microsoft and of the third parties has been respected in the present case.

Brussels, 3 July 2006.

Karen WILLIAMS

---

(1)  Article 5 of the operative part of the Final Decision reads:

1

‘As regards the abuse referred to in Article 2(a):

| (a) | Microsoft Corporation shall, within 120 days of the date of notification of this Decision, make the Interoperability Information available to any undertaking having an interest in developing and distributing work group server operating system products and shall, on reasonable and non-discriminatory terms, allow the use of the Interoperability Information by such undertakings for the purpose of developing and distributing work group server operating system products. |
| --- | --- |

(a)

Microsoft Corporation shall, within 120 days of the date of notification of this Decision, make the Interoperability Information available to any undertaking having an interest in developing and distributing work group server operating system products and shall, on reasonable and non-discriminatory terms, allow the use of the Interoperability Information by such undertakings for the purpose of developing and distributing work group server operating system products.

| (b) | Microsoft Corporation shall ensure that the Interoperability Information made available is kept updated on an ongoing basis and in a Timely Manner. |
| --- | --- |

(b)

Microsoft Corporation shall ensure that the Interoperability Information made available is kept updated on an ongoing basis and in a Timely Manner.

| (c) | Microsoft Corporation shall, within 120 days of the date of notification of this Decision, set up an evaluation mechanism that will give interested undertakings a workable possibility of informing themselves about the scope and terms of use of the Interoperability Information; as regards this evaluation mechanism, Microsoft Corporation may impose reasonable and non-discriminatory conditions to ensure that access to the Interoperability Information is granted for evaluation purposes only.’ [...]. |
| --- | --- |

(c)

Microsoft Corporation shall, within 120 days of the date of notification of this Decision, set up an evaluation mechanism that will give interested undertakings a workable possibility of informing themselves about the scope and terms of use of the Interoperability Information; as regards this evaluation mechanism, Microsoft Corporation may impose reasonable and non-discriminatory conditions to ensure that access to the Interoperability Information is granted for evaluation purposes only.’ [...].

(2)  Cf. Article 7 of the Decision and Article 3 of the Trustee Decision.

2

(3)  Judgement of the Court of First Instance of 30 September 2003, in Joined Cases T-191/98 and T-212/98 to T-214/98, Atlantic Container Line, paragraph 115.

3

Atlantic Container Line

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| 5.6.2008 | EN | Official Journal of the European Union | C 138/9 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/9

---

Opinion of the Advisory Committee on restrictive practices and dominant positions given at its 412th meeting on 10 July 2006 concerning a draft decision relating to Case COMP/C-3/37.792 — Microsoft

(2008/C 138/06)

| 1. | The Advisory Committee agrees with the Commission in considering that the definitive amount of the periodic penalty payment should be fixed at EUR 1,5 million per day of non-compliance, within the framework of the limit fixed by the Article 24(1) Decision (maximum of EUR 2 million per day), thus making a total of EUR 280,5 million. |
| --- | --- |

1.

The Advisory Committee agrees with the Commission in considering that the definitive amount of the periodic penalty payment should be fixed at EUR 1,5 million per day of non-compliance, within the framework of the limit fixed by the Article 24(1) Decision (maximum of EUR 2 million per day), thus making a total of EUR 280,5 million.

| 2. | The Advisory Committee recommends the publication of this opinion in the Official Journal of the European Union. |
| --- | --- |

2.

The Advisory Committee recommends the publication of this opinion in the Official Journal of the European Union.

---

| 5.6.2008 | EN | Official Journal of the European Union | C 138/10 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/10

---

Summary of Commission Decision

of 12 July 2006

fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corporation by Decision C(2005) 4420 final and amending that Decision as regards the amount of the periodic penalty payment

(Case COMP/C-3/37.792 — Microsoft)

(notified under document number C(2006) 3143)

(Only the English text is authentic)

(2008/C 138/07)

On 12 July 2006, the Commission adopted a decision fixing the definitive amount of the periodic penalty payment imposed on Microsoft Corporation by Decision C(2005) 4420 final and amending that Decision as regards the amount of the periodic penalty payment. 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 the penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business interests. A non-confidential version of the full text of the decision as well as of Decision C(2005) 4420 of 10 November 2005 can be found in the authentic language of the case and in the Commission's working languages at DG COMP's website at:

http://europa.eu.int/comm/competition/index_en.html

1.   SUMMARY OF THE CASE

1.1.   Background of the case

| 1. | On 24 March 2004, the Commission adopted a decision (C(2004) 900) in a proceeding pursuant to Article 82 of the EC Treaty (Case COMP/C-3/37.792) addressed to Microsoft. In this decision (‘the Decision’), the Commission found, inter alia, that Microsoft had infringed Article 82 of the EC Treaty and Article 54 of the Agreement on the European Economic Area by refusing, from October 1998 until the date of the Decision, to disclose certain specified ‘Interoperability Information’ (2) to vendors of work group server operating system products, so that they could develop and distribute interoperable products. |
| --- | --- |

1.

On 24 March 2004, the Commission adopted a decision (C(2004) 900) in a proceeding pursuant to Article 82 of the EC Treaty (Case COMP/C-3/37.792) addressed to Microsoft. In this decision (‘the Decision’), the Commission found, inter alia, that Microsoft had infringed Article 82 of the EC Treaty and Article 54 of the Agreement on the European Economic Area by refusing, from October 1998 until the date of the Decision, to disclose certain specified ‘Interoperability Information’ (2) to vendors of work group server operating system products, so that they could develop and distribute interoperable products.

| 2. | Article 5(a) of the operative part of the Decision reads as follows:

  ‘Microsoft Corporation shall, within 120 days of the date of notification of this Decision, make the Interoperability Information available to any undertaking having an interest in developing and distributing work group server operating system products and shall, on reasonable and non-discriminatory terms, allow the use of the Interoperability Information by such undertakings for the purpose of developing and distributing work group server operating system products’. |
| --- | --- |

2.

Article 5(a) of the operative part of the Decision reads as follows:

‘Microsoft Corporation shall, within 120 days of the date of notification of this Decision, make the Interoperability Information available to any undertaking having an interest in developing and distributing work group server operating system products and shall, on reasonable and non-discriminatory terms, allow the use of the Interoperability Information by such undertakings for the purpose of developing and distributing work group server operating system products’.

| 3. | Microsoft's application for interim measures against the Decision was rejected by order of the President of the Court of First Instance of 22 December 2004 (T-201/04 R). |
| --- | --- |

3.

Microsoft's application for interim measures against the Decision was rejected by order of the President of the Court of First Instance of 22 December 2004 (T-201/04 R).

| 4. | In view of Microsoft's continuous non-compliance with the Decision, after more than one year after the adoption of the Decision, on 10 November 2005, the Commission adopted a decision imposing a periodic penalty payment pursuant to Article 24(1) of Regulation (EC) No 1/2003 on Microsoft (‘the Article 24(1) Decision’). Article 1 of the 24(1) Decision reads as follows:

  ‘Microsoft Corporation shall ensure that, by 15 December 2005, it fully complies with the obligations set out in Article 5(a) and (c) of Commission Decision (C(2004) 900) of 24 March 2004.


  In the absence of such compliance, a periodic penalty payment of EUR 2 million per day, calculated from that date, shall be imposed on Microsoft Corporation’. |
| --- | --- |

4.

In view of Microsoft's continuous non-compliance with the Decision, after more than one year after the adoption of the Decision, on 10 November 2005, the Commission adopted a decision imposing a periodic penalty payment pursuant to Article 24(1) of Regulation (EC) No 1/2003 on Microsoft (‘the Article 24(1) Decision’). Article 1 of the 24(1) Decision reads as follows:

‘Microsoft Corporation shall ensure that, by 15 December 2005, it fully complies with the obligations set out in Article 5(a) and (c) of Commission Decision (C(2004) 900) of 24 March 2004.

In the absence of such compliance, a periodic penalty payment of EUR 2 million per day, calculated from that date, shall be imposed on Microsoft Corporation’.

1.2.   Appointment of the Monitoring Trustee

| 5. | Article 7 of the Decision provides that:

  ‘Within 30 days of the date of notification of this Decision, Microsoft Corporation shall submit a proposal to the Commission for the establishment of a suitable mechanism assisting the Commission in monitoring Microsoft Corporation's compliance with this Decision. That mechanism shall include a monitoring trustee who shall be independent from Microsoft.


  In case the Commission considers Microsoft Corporation's proposed monitoring mechanism not suitable it retains the right to impose such a mechanism by way of a decision’. |
| --- | --- |

5.

Article 7 of the Decision provides that:

‘Within 30 days of the date of notification of this Decision, Microsoft Corporation shall submit a proposal to the Commission for the establishment of a suitable mechanism assisting the Commission in monitoring Microsoft Corporation's compliance with this Decision. That mechanism shall include a monitoring trustee who shall be independent from Microsoft.

In case the Commission considers Microsoft Corporation's proposed monitoring mechanism not suitable it retains the right to impose such a mechanism by way of a decision’.

| 6. | On 28 July 2005, the Commission adopted a decision pursuant to Article 7 of the Decision and Article 7(1) of Regulation (EC) No 1/2003 establishing the monitoring mechanism provided for in Article 7 of the Decision (‘the Trustee Decision’) (3). The Trustee Decision provides, inter alia, for the appointment of a Monitoring Trustee. |
| --- | --- |

6.

On 28 July 2005, the Commission adopted a decision pursuant to Article 7 of the Decision and Article 7(1) of Regulation (EC) No 1/2003 establishing the monitoring mechanism provided for in Article 7 of the Decision (‘the Trustee Decision’) (3). The Trustee Decision provides, inter alia, for the appointment of a Monitoring Trustee.

| 7. | By letter of 12 August 2005, Microsoft proposed four candidates for the position of Monitoring Trustee. Having interviewed all four candidates, the Commission appointed one of the candidates proposed by Microsoft, Professor Neil Barrett, as Monitoring Trustee (the ‘Trustee’) by letter of 4 October 2005. |
| --- | --- |

7.

By letter of 12 August 2005, Microsoft proposed four candidates for the position of Monitoring Trustee. Having interviewed all four candidates, the Commission appointed one of the candidates proposed by Microsoft, Professor Neil Barrett, as Monitoring Trustee (the ‘Trustee’) by letter of 4 October 2005.

1.3.   Procedural steps

| 8. | On 21 December 2005, in the light of reports provided by the Trustee on the technical documentation submitted by Microsoft and sought to contain the Interoperability Information, the Commission came to the preliminary conclusion that Microsoft had not yet complied with the obligations set out in Article 5(a) and (c) of the Decision. Accordingly, the Commission issued a Statement of Objections stating that it intended by a decision pursuant to Article 24(2) of Regulation (EC) No 1/2003 to fix the definitive amount of the periodic penalty payment which was imposed on Microsoft by the Article 24(1) Decision for non-compliance with its obligation to make Interoperability Information available to interested undertakings pursuant to Article 5(a) and (c) of the Decision, for the period between 15 December 2005 and the date specified in a decision pursuant to Article 24(2) of Regulation (EC) No 1/2003. |
| --- | --- |

8.

On 21 December 2005, in the light of reports provided by the Trustee on the technical documentation submitted by Microsoft and sought to contain the Interoperability Information, the Commission came to the preliminary conclusion that Microsoft had not yet complied with the obligations set out in Article 5(a) and (c) of the Decision. Accordingly, the Commission issued a Statement of Objections stating that it intended by a decision pursuant to Article 24(2) of Regulation (EC) No 1/2003 to fix the definitive amount of the periodic penalty payment which was imposed on Microsoft by the Article 24(1) Decision for non-compliance with its obligation to make Interoperability Information available to interested undertakings pursuant to Article 5(a) and (c) of the Decision, for the period between 15 December 2005 and the date specified in a decision pursuant to Article 24(2) of Regulation (EC) No 1/2003.

| 9. | After having been granted a time extension, on 15 February 2006 Microsoft replied to the Statement of Objections. |
| --- | --- |

9.

After having been granted a time extension, on 15 February 2006 Microsoft replied to the Statement of Objections.

| 10. | On 10 March 2006, the Commission sent Microsoft a letter enclosing further reports from the Trustee and from the Commission's technical experts on the technical documentation provide by Microsoft and invited the Microsoft to submit comments, which it did on 14 April 2006. |
| --- | --- |

10.

On 10 March 2006, the Commission sent Microsoft a letter enclosing further reports from the Trustee and from the Commission's technical experts on the technical documentation provide by Microsoft and invited the Microsoft to submit comments, which it did on 14 April 2006.

| 11. | On 30 and 31 March 2006 an oral hearing was held in Brussels. |
| --- | --- |

11.

On 30 and 31 March 2006 an oral hearing was held in Brussels.

| 12. | On 11 April 2006, Microsoft submitted a revised version of the technical documentation sought to contain the Interoperability Information. |
| --- | --- |

12.

On 11 April 2006, Microsoft submitted a revised version of the technical documentation sought to contain the Interoperability Information.

| 13. | On 19 May 2006, the Commission sent Microsoft a letter enclosing new reports on the revised technical documentation submitted in April from the Trustee and from the Commission's technical experts, and invited the Microsoft to submit comments, which it did on 9 June 2006. |
| --- | --- |

13.

On 19 May 2006, the Commission sent Microsoft a letter enclosing new reports on the revised technical documentation submitted in April from the Trustee and from the Commission's technical experts, and invited the Microsoft to submit comments, which it did on 9 June 2006.

1.4.   The company and product concerned

| 14. | Microsoft is a software company based in Redmond, State of Washington, USA. Its turnover for the fiscal year July 2004 to June 2005, which is Microsoft's latest full business year, was USD 39 788 million. Microsoft employs 55 000 people around the world. Microsoft is present in all countries within the EEA. |
| --- | --- |

14.

Microsoft is a software company based in Redmond, State of Washington, USA. Its turnover for the fiscal year July 2004 to June 2005, which is Microsoft's latest full business year, was USD 39 788 million. Microsoft employs 55 000 people around the world. Microsoft is present in all countries within the EEA.

| 15. | The products concerned by the present procedure are the ‘Windows Work Group Server Operating Systems’ as defined in Article 1(9) of the Decision. |
| --- | --- |

15.

The products concerned by the present procedure are the ‘Windows Work Group Server Operating Systems’ as defined in Article 1(9) of the Decision.

1.5.   The nature of the non-compliance

| 16. | As set out in recital 1003 of the Decision, the objective of the Decision ‘is to ensure that Microsoft's competitors can develop products that interoperate with the Windows domain architecture natively supported in the dominant Windows client PC operating system and hence viably compete with Microsoft's work group server operating system’. |
| --- | --- |

16.

As set out in recital 1003 of the Decision, the objective of the Decision ‘is to ensure that Microsoft's competitors can develop products that interoperate with the Windows domain architecture natively supported in the dominant Windows client PC operating system and hence viably compete with Microsoft's work group server operating system’.

| 17. | The Commission has assessed Microsoft's compliance with Article 5(a) and (c) of the Decision on the basis of an evaluation of the completeness and accuracy of the December 2005 version of the technical documentation, as well as of the versions of the technical documentation provided by Microsoft up to April 2006. The Commission has been assisted by the Trustee as well as by its own technical experts. The Commission has come to the conclusion that Microsoft, more than two years after the adoption of the Decision, has not yet complied with the disclosure order laid down in that Decision as it has not provided complete and accurate technical documentation containing the Interoperability Information that would allow competitors to develop servers that could interoperate with Microsoft's dominant PC and work group server operating systems. |
| --- | --- |

17.

The Commission has assessed Microsoft's compliance with Article 5(a) and (c) of the Decision on the basis of an evaluation of the completeness and accuracy of the December 2005 version of the technical documentation, as well as of the versions of the technical documentation provided by Microsoft up to April 2006. The Commission has been assisted by the Trustee as well as by its own technical experts. The Commission has come to the conclusion that Microsoft, more than two years after the adoption of the Decision, has not yet complied with the disclosure order laid down in that Decision as it has not provided complete and accurate technical documentation containing the Interoperability Information that would allow competitors to develop servers that could interoperate with Microsoft's dominant PC and work group server operating systems.

2.   DEFINITIVE AMOUNT OF THE PERIODIC PENALTY PAYMENT

2.1.   Relevant period of non-compliance

| 18. | This decision only concerns the period from 16 December 2005 to 20 June 2006, the date on which the draft decision was sent to the members of the Advisory Committee in accordance with Article 14(3) of Regulation (EC) No 1/2003 (‘the relevant period’). |
| --- | --- |

18.

This decision only concerns the period from 16 December 2005 to 20 June 2006, the date on which the draft decision was sent to the members of the Advisory Committee in accordance with Article 14(3) of Regulation (EC) No 1/2003 (‘the relevant period’).

2.2.   Definitive amount of the periodic penalty payment for the relevant period

| 19. | Article 24(2) of Regulation (EC) No 1/2003 provides that, where the undertaking concerned has satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may fix the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the original decision. The Commission must also have the power to fix a definitive amount for a given period of time in a case where an undertaking has not yet satisfied, by the end of such period, the obligation which the periodic penalty payment was intended to enforce. Otherwise, an undertaking could escape from paying periodic penalty payments imposed on it by continuously failing to comply, which would void Article 24 of its useful effect. |
| --- | --- |

19.

Article 24(2) of Regulation (EC) No 1/2003 provides that, where the undertaking concerned has satisfied the obligation which the periodic penalty payment was intended to enforce, the Commission may fix the definitive amount of the periodic penalty payment at a figure lower than that which would arise under the original decision. The Commission must also have the power to fix a definitive amount for a given period of time in a case where an undertaking has not yet satisfied, by the end of such period, the obligation which the periodic penalty payment was intended to enforce. Otherwise, an undertaking could escape from paying periodic penalty payments imposed on it by continuously failing to comply, which would void Article 24 of its useful effect.

| 20. | In the Article 24(1) Decision, the Commission imposed a periodic penalty payment of EUR 2 million per day. In doing so, the Commission took into account the necessity of imposing a sufficiently high periodic penalty payment to ensure Microsoft's compliance with the Decision and the extent to which Microsoft's failure to meet its obligations under Article 5(a) and (c) of the Decision had reduced the effectiveness of the remedy. While the Statement of Objections, related exclusively to one aspect of Microsoft's non-compliance, namely its failure to provide complete and accurate technical documentation that embodies the Interoperability Information, it made clear that the level of the periodic penalty payment should reflect the extent to which this aspect of Microsoft's non-compliance had reduced the effectiveness of the remedy. |
| --- | --- |

20.

In the Article 24(1) Decision, the Commission imposed a periodic penalty payment of EUR 2 million per day. In doing so, the Commission took into account the necessity of imposing a sufficiently high periodic penalty payment to ensure Microsoft's compliance with the Decision and the extent to which Microsoft's failure to meet its obligations under Article 5(a) and (c) of the Decision had reduced the effectiveness of the remedy. While the Statement of Objections, related exclusively to one aspect of Microsoft's non-compliance, namely its failure to provide complete and accurate technical documentation that embodies the Interoperability Information, it made clear that the level of the periodic penalty payment should reflect the extent to which this aspect of Microsoft's non-compliance had reduced the effectiveness of the remedy.

| 21. | In this respect, regard must be had to the fact that the continuing failure by Microsoft to comply with the Decision and to bring its very serious breach of Article 82 of the Treaty and of Article 54 of the EEA Agreement to an end (4)
   (5) is liable to further increase the risk of elimination of effective competition in the work group server operating system market identified in the Decision (6). It is necessary to set periodic penalty payments at a level which reinforces the incentive to comply with a decision taken pursuant Article 7 of Regulation (EC) No 1/2003 by rendering it economically rational for the undertaking concerned to comply with such a decision rather than to reap the benefits of non-compliance. Similarly, the Commission must take into account the necessity of setting periodic penalty payments which are proportionate and sufficient to compel compliance from an undertaking such as Microsoft, with its very substantial size and financial resources. |
| --- | --- |

21.

In this respect, regard must be had to the fact that the continuing failure by Microsoft to comply with the Decision and to bring its very serious breach of Article 82 of the Treaty and of Article 54 of the EEA Agreement to an end (4)
   (5) is liable to further increase the risk of elimination of effective competition in the work group server operating system market identified in the Decision (6). It is necessary to set periodic penalty payments at a level which reinforces the incentive to comply with a decision taken pursuant Article 7 of Regulation (EC) No 1/2003 by rendering it economically rational for the undertaking concerned to comply with such a decision rather than to reap the benefits of non-compliance. Similarly, the Commission must take into account the necessity of setting periodic penalty payments which are proportionate and sufficient to compel compliance from an undertaking such as Microsoft, with its very substantial size and financial resources.

| 22. | The Commission concluded that throughout the relevant period the technical documentation was incomplete and inaccurate to such an extent that it was not a suitable basis for an interested undertaking to start developing work group server operating systems which interoperate with Microsoft's products, as envisaged by the Decision. Therefore, it is established that during the relevant period, the effectiveness of Article 5(a) and (c) of the Decision was entirely or at least largely eliminated, irrespective of whether or not the remuneration charged by Microsoft was reasonable with regard to the information provided. In view of this, the Commission would be fully entitled to fix the definitive amount of the periodic penalty payment for the sole aspect of non compliance established by this decision on the basis of EUR 2 million per day throughout the relevant period. |
| --- | --- |

22.

The Commission concluded that throughout the relevant period the technical documentation was incomplete and inaccurate to such an extent that it was not a suitable basis for an interested undertaking to start developing work group server operating systems which interoperate with Microsoft's products, as envisaged by the Decision. Therefore, it is established that during the relevant period, the effectiveness of Article 5(a) and (c) of the Decision was entirely or at least largely eliminated, irrespective of whether or not the remuneration charged by Microsoft was reasonable with regard to the information provided. In view of this, the Commission would be fully entitled to fix the definitive amount of the periodic penalty payment for the sole aspect of non compliance established by this decision on the basis of EUR 2 million per day throughout the relevant period.

| 23. | However, it is possible that the Commission will also conclude that Microsoft has failed to comply with Article 5(a) and (c) of the Decision as regards the reasonableness of the remuneration charged after 15 December 2005 for information provided. At this stage, for the purposes of effective enforcement, it is therefore necessary to retain the possibility of fixing a definitive amount for this aspect of non-compliance from the date fixed in the Article 24(1) Decision. |
| --- | --- |

23.

However, it is possible that the Commission will also conclude that Microsoft has failed to comply with Article 5(a) and (c) of the Decision as regards the reasonableness of the remuneration charged after 15 December 2005 for information provided. At this stage, for the purposes of effective enforcement, it is therefore necessary to retain the possibility of fixing a definitive amount for this aspect of non-compliance from the date fixed in the Article 24(1) Decision.

| 24. | The definitive amount of the periodic penalty payment in respect of Microsoft's failure to comply with the obligations regarding the provision of complete and accurate technical documentation embodying the Interoperability Information pursuant to Article 5(a) and (c) of the Decision, was therefore calculated on the basis of an amount of EUR 1,5 million per day throughout the relevant period. |
| --- | --- |

24.

The definitive amount of the periodic penalty payment in respect of Microsoft's failure to comply with the obligations regarding the provision of complete and accurate technical documentation embodying the Interoperability Information pursuant to Article 5(a) and (c) of the Decision, was therefore calculated on the basis of an amount of EUR 1,5 million per day throughout the relevant period.

2.3.   Conclusion

| 25. | The definitive amount of the periodic penalty payment imposed on Microsoft, pursuant to Article 24(2) of Regulation (EC) No 1/2003, for failing to comply with the obligations regarding the provision of complete and accurate technical documentation embodying the Interoperability Information laid down in Article 5(a) and (c) of the Decision was fixed at EUR 280,5 million for the period from 16 December 2005 to 20 June 2006 inclusive. |
| --- | --- |

25.

The definitive amount of the periodic penalty payment imposed on Microsoft, pursuant to Article 24(2) of Regulation (EC) No 1/2003, for failing to comply with the obligations regarding the provision of complete and accurate technical documentation embodying the Interoperability Information laid down in Article 5(a) and (c) of the Decision was fixed at EUR 280,5 million for the period from 16 December 2005 to 20 June 2006 inclusive.

3.   INCREASE OF THE PERIODIC PENALTY PAYMENTS

| 26. | Microsoft's delay in complying with its obligations under the Decision is liable to further increase the risk of elimination of effective competition on the market for work group server operating systems, where, at the time of the Decision, Microsoft had already achieved a dominant position and was likely to eliminate all competition (recital 1070 of the Decision). Market data indicate that Microsoft's market share continues to grow steadily. Since the market for work group server operating systems is characterised by high barriers to entry (recitals 515 to 525 of the Decision), due among other things to indirect network effects that reinforce each other (see recital 653 of the Decision), this deterioration in the market structure risks becoming irreversible. As such, ensuring Microsoft's compliance is now a matter of even greater urgency than before. |
| --- | --- |

26.

Microsoft's delay in complying with its obligations under the Decision is liable to further increase the risk of elimination of effective competition on the market for work group server operating systems, where, at the time of the Decision, Microsoft had already achieved a dominant position and was likely to eliminate all competition (recital 1070 of the Decision). Market data indicate that Microsoft's market share continues to grow steadily. Since the market for work group server operating systems is characterised by high barriers to entry (recitals 515 to 525 of the Decision), due among other things to indirect network effects that reinforce each other (see recital 653 of the Decision), this deterioration in the market structure risks becoming irreversible. As such, ensuring Microsoft's compliance is now a matter of even greater urgency than before.

| 27. | Following the Article 24(1) Decision, which imposed a periodic penalty payment of EUR 2 million per day, Microsoft has not taken the necessary measures for at least seven months. In the light of the urgent need to establish the level of the periodic penalty payment is increased to EUR 3 million, with effect from 31 July 2006. Since it is possible that the disclosure order in Article 5(a) and (c) of the Decision can be entirely or largely deprived of its effectiveness either through Microsoft's failure to provide complete and accurate technical documentation embodying the Interoperability Information or by Microsoft requiring an unreasonable remuneration, this amount should apply equally to both aspects of Microsoft's non-compliance preliminarily identified in the Article 24(1) Decision. Consequently, if Microsoft does not comply with its obligations by 31 July 2006, the Commission may decide to fix definitively the full amount of this increased periodic penalty payment for any subsequent relevant period of non-compliance in respect of either aspect of Microsoft's non-compliance, taken in isolation, or for both, taken together. |
| --- | --- |

27.

Following the Article 24(1) Decision, which imposed a periodic penalty payment of EUR 2 million per day, Microsoft has not taken the necessary measures for at least seven months. In the light of the urgent need to establish the level of the periodic penalty payment is increased to EUR 3 million, with effect from 31 July 2006. Since it is possible that the disclosure order in Article 5(a) and (c) of the Decision can be entirely or largely deprived of its effectiveness either through Microsoft's failure to provide complete and accurate technical documentation embodying the Interoperability Information or by Microsoft requiring an unreasonable remuneration, this amount should apply equally to both aspects of Microsoft's non-compliance preliminarily identified in the Article 24(1) Decision. Consequently, if Microsoft does not comply with its obligations by 31 July 2006, the Commission may decide to fix definitively the full amount of this increased periodic penalty payment for any subsequent relevant period of non-compliance in respect of either aspect of Microsoft's non-compliance, taken in isolation, or for both, taken together.

---

(1)  OJ L 1, 4.1.2003, p. 1. Regulation as last amended by Regulation (EC) No 1419/2006 (OJ L 269, 28.9.2006, p. 1).

(2)  The term ‘Interoperability Information’ is defined in Article 1(1) of the Decision. It means ‘the complete and accurate specifications for all the Protocols implemented in Windows Work Group Server Operating Systems and that are used by Windows Work Group Servers to deliver file and print services and group and user administration services, including the Windows Domain Controller services, Active Directory services and Group Policy services, to Windows Work Group Networks’. Article 1(2) of the Decision defines a ‘Protocol’ as ‘a set of rules of interconnection and interaction between various instances of Windows Work Group Server Operating Systems and Windows Client PC Operating Systems running on different computers in a Windows Work Group Network’.

(3)  Commission Decision of 28 July 2005 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/C-3/37.792 — Microsoft — C(2005) 2988 final).

(4)  See recitals 1068-1074 of the Decision.

(5)  See in this regard also the Judgment in Joined Cases 46/87 and 227/88, Hoechst [1989] ECR 2859, at paragraph 64, where the Court refers to the ‘obligation imposed upon all persons subject to Community law to acknowledge that measures adopted by the institutions are fully effective so long as they have not been declared invalid by the Court and to recognize their enforceability unless the Court has decided to suspend the operation of the said measures [...]’.

(6)  See recitals 590 to 692 of the Decision.

---

NOTICES FROM MEMBER STATES

| 5.6.2008 | EN | Official Journal of the European Union | C 138/15 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/15

---

Information communicated by Member States regarding State aid granted under Commission Regulation (EC) No 1628/2006 on the application of Articles 87 and 88 of the EC Treaty to national regional investment aid

(Text with EEA relevance)

(2008/C 138/08)

| Aid No | XR 152/07 |
| --- | --- |
| Member State | Portugal |
| Region | Madeira |
| Title of aid scheme or the name of the undertaking receiving ad hoc aid supplement | Regime de auxílios fiscais ao investimento em regime contratual na região autónoma da Madeira |
| Legal basis | Decreto Legislativo Regional n.o 17/2006/M, de 23 de Maio
  Decreto Regulamentar Regional n.o 6/2007/M, de 22 de Agosto |
| Type of measure | Aid scheme |
| Annual budget | EUR 5,98 million |
| Maximum aid intensity | 52 % |
| In conformity with Article 4 of the Regulation |
| Date of implementation | 23.8.2007 |
| Duration | 31.12.2010 |
| Economic sectors | All sectors eligible for regional investment aid |
| Name and address of the granting authority | Instituto de desenvolvimento empresarial |
| Avenida Arriaga, 21-A |
| Edifício Golden, 3.o Piso |
| P-9004-528 Funchal |

Aid No

XR 152/07

Member State

Portugal

Region

Madeira

Title of aid scheme or the name of the undertaking receiving ad hoc aid supplement

Regime de auxílios fiscais ao investimento em regime contratual na região autónoma da Madeira

Legal basis

Decreto Legislativo Regional n.o 17/2006/M, de 23 de Maio

Decreto Regulamentar Regional n.o 6/2007/M, de 22 de Agosto

Type of measure

Aid scheme

Annual budget

EUR 5,98 million

Maximum aid intensity

52 %

In conformity with Article 4 of the Regulation

Date of implementation

23.8.2007

Duration

31.12.2010

Economic sectors

All sectors eligible for regional investment aid

Name and address of the granting authority

Instituto de desenvolvimento empresarial

Avenida Arriaga, 21-A

Edifício Golden, 3.o Piso

P-9004-528 Funchal

Internet address of the publication of the aid scheme

http://www.ideram.pt/BeneficiosFiscaisLegislacao.Zip

Other information

—

| Aid No | XR 196/07 |
| --- | --- |
| Member State | Portugal |
| Region | Açores |
| Title of aid scheme or the name of the undertaking receiving ad hoc aid supplement | SIDER — Sistema de Incentivos para o Desenvolvimento Regional dos Açores |
| Legal basis | Decreto Legislativo Regional n.o 19/2007/A, de 23 de Julho
  Decreto Regulamentar Regional n.o 21/2007/A, de 24 de Outubro
  Decreto Regulamentar Regional n.o 22/2007/A, de 25 de Outubro
  Decreto Regulamentar Regional n.o 23/2007/A, de 29 de Outubro
  Decreto Regulamentar Regional n.o 26/2007/A, de 19 de Novembro |
| Type of measure | Aid scheme |
| Annual budget | EUR 19 million |
| Maximum aid intensity | 50 % |
| In conformity with Article 4 of the Regulation |
| Date of implementation | 1.1.2007 |
| Duration | 31.12.2013 |
| Economic sectors | All sectors eligible for regional investment aid |
| Name and address of the granting authority | Secretaria Regional da Economia |
| Rua de São João, 47 |
| P-9504-533 Ponta Delgada (S. Miguel) Açores |

Aid No

XR 196/07

Member State

Portugal

Region

Açores

Title of aid scheme or the name of the undertaking receiving ad hoc aid supplement

SIDER — Sistema de Incentivos para o Desenvolvimento Regional dos Açores

Legal basis

Decreto Legislativo Regional n.o 19/2007/A, de 23 de Julho

Decreto Regulamentar Regional n.o 21/2007/A, de 24 de Outubro

Decreto Regulamentar Regional n.o 22/2007/A, de 25 de Outubro

Decreto Regulamentar Regional n.o 23/2007/A, de 29 de Outubro

Decreto Regulamentar Regional n.o 26/2007/A, de 19 de Novembro

Type of measure

Aid scheme

Annual budget

EUR 19 million

Maximum aid intensity

50 %

In conformity with Article 4 of the Regulation

Date of implementation

1.1.2007

Duration

31.12.2013

Economic sectors

All sectors eligible for regional investment aid

Name and address of the granting authority

Secretaria Regional da Economia

Rua de São João, 47

P-9504-533 Ponta Delgada (S. Miguel) Açores

Internet address of the publication of the aid scheme

http://www.azores.gov.pt/Portal/pt/entidades/sre-drace/textoTabela/SIDER+2007.htm

Other information

—

| Aid No | XR 24/08 |
| --- | --- |
| Member State | Poland |
| Region | Kujawsko — Pomorskie |
| Title of aid scheme or the name of the undertaking receiving ad hoc aid supplement | Uchwała nr XIV/92/07 Rady Miejskiej z dnia 24 października 2007 r. w sprawie programu pomocy regionalnej na wspieranie nowych inwestycji lub tworzenie nowych miejsc pracy związanych z nową inwestycją dla przedsiębiorców prowadzących działalność gospodarczą na terenie gminy Szubin (Dz.Urz. Województwa Kuj–Pom. nr 146, poz. 2501) |
| Legal basis | Ustawa o podatkach i opłatach lokalnych (tj. Dz.U. z 2006 r. nr 121, poz. 844, zmiana Dz.U. z 2005 r. nr 143, poz. 1199, z 2006 r. nr 220, poz. 1601, nr 225, poz. 1635, nr 245, poz. 1775, nr 249 poz. 1828, nr 251, poz. 1847) oraz Uchwała nr XIV/92/07 Rady Miejskiej z dnia 24 października 2007 r. w sprawie programu pomocy regionalnej na wspieranie nowych inwestycji lub tworzenie nowych miejsc pracy związanych z nową inwestycją dla przedsiębiorców prowadzących działalność gospodarczą na terenie gminy Szubin (Dz.Urz. Województwa Kuj–Pom. nr 146, poz. 2501) |
| Type of measure | Aid scheme |
| Annual budget | PLN 0,85 million |
| Maximum aid intensity | 50 % |
| In conformity with Article 4 of the Regulation |
| Date of implementation | 1.1.2008 |
| Duration | 31.12.2013 |
| Economic sectors | All sectors eligible for regional investment aid |
| Name and address of the granting authority | Burmistrz Szubina |
| PL-89-200 Szubin |
| ul. Kcyńska 12 |
| Tel. (48-52) 391 07 19 |
| Fax (48-52) 384 80 71 |
| E-mail: ugim@ugim.szubin.pl |

Aid No

XR 24/08

Member State

Poland

Region

Kujawsko — Pomorskie

Title of aid scheme or the name of the undertaking receiving ad hoc aid supplement

Uchwała nr XIV/92/07 Rady Miejskiej z dnia 24 października 2007 r. w sprawie programu pomocy regionalnej na wspieranie nowych inwestycji lub tworzenie nowych miejsc pracy związanych z nową inwestycją dla przedsiębiorców prowadzących działalność gospodarczą na terenie gminy Szubin (Dz.Urz. Województwa Kuj–Pom. nr 146, poz. 2501)

Legal basis

Ustawa o podatkach i opłatach lokalnych (tj. Dz.U. z 2006 r. nr 121, poz. 844, zmiana Dz.U. z 2005 r. nr 143, poz. 1199, z 2006 r. nr 220, poz. 1601, nr 225, poz. 1635, nr 245, poz. 1775, nr 249 poz. 1828, nr 251, poz. 1847) oraz Uchwała nr XIV/92/07 Rady Miejskiej z dnia 24 października 2007 r. w sprawie programu pomocy regionalnej na wspieranie nowych inwestycji lub tworzenie nowych miejsc pracy związanych z nową inwestycją dla przedsiębiorców prowadzących działalność gospodarczą na terenie gminy Szubin (Dz.Urz. Województwa Kuj–Pom. nr 146, poz. 2501)

Type of measure

Aid scheme

Annual budget

PLN 0,85 million

Maximum aid intensity

50 %

In conformity with Article 4 of the Regulation

Date of implementation

1.1.2008

Duration

31.12.2013

Economic sectors

All sectors eligible for regional investment aid

Name and address of the granting authority

Burmistrz Szubina

PL-89-200 Szubin

ul. Kcyńska 12

Tel. (48-52) 391 07 19

Fax (48-52) 384 80 71

E-mail: ugim@ugim.szubin.pl

Internet address of the publication of the aid scheme

http://www.szubin.pl/bip_download.php?id=3758

Other information

—

| Aid No | XR 54/08 |
| --- | --- |
| Member State | Lithuania |
| Region | 87(3)(a) |
| Title of aid scheme or the name of the undertaking receiving ad hoc aid supplement | Priemonė „LYDERIS LT’ |
| Legal basis | 2008 m. kovo 17 d. Lietuvos Respublikos ūkio ministro įsakymas Nr. 4-105 „Dėl priemonės „Lyderis LT“ projektų finansavimo sąlygų aprašo patvirtinimo“ |
| Type of measure | Aid scheme |
| Annual budget | LTL 117 million |
| Maximum aid intensity | 40 % |
| In conformity with Article 4 of the Regulation |
| Date of implementation | 23.3.2008 |
| Duration | 31.12.2013 |
| Economic sectors | All sectors eligible for regional investment aid |
| Name and address of the granting authority | Lietuvos Respublikos ūkio ministerija |
| Gedimino pr. 38/2 |
| LT-01104 Vilnius |

Aid No

XR 54/08

Member State

Lithuania

Region

87(3)(a)

Title of aid scheme or the name of the undertaking receiving ad hoc aid supplement

Priemonė „LYDERIS LT’

Legal basis

2008 m. kovo 17 d. Lietuvos Respublikos ūkio ministro įsakymas Nr. 4-105 „Dėl priemonės „Lyderis LT“ projektų finansavimo sąlygų aprašo patvirtinimo“

Type of measure

Aid scheme

Annual budget

LTL 117 million

Maximum aid intensity

40 %

In conformity with Article 4 of the Regulation

Date of implementation

23.3.2008

Duration

31.12.2013

Economic sectors

All sectors eligible for regional investment aid

Name and address of the granting authority

Lietuvos Respublikos ūkio ministerija

Gedimino pr. 38/2

LT-01104 Vilnius

Internet address of the publication of the aid scheme

http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=316440

Other information

—

---

| 5.6.2008 | EN | Official Journal of the European Union | C 138/18 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/18

---

List of ports where landing or transhipping is allowed of frozen fish caught by third-country fishing vessels in the North-East Atlantic Fisheries Convention Area

(2008/C 138/09)

The publication of the list (1) is based on Article 36 of Council Regulation (EC) No 40/2008 of 16 January 2008 fixing for 2008 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (2).

| Member State | Designated Ports |
| --- | --- |
| Denmark | Esbjerg
  Fredericia
  Hanstholm
  Hirtshals
  København
  Skagen
  Ålborg
  Århus |
| Germany | Hamburg
  Cuxhaven
  Bremerhaven
  Sassnitz
  Rostock |
| Spain | Vigo port area
  Marin |
| France | Boulogne-sur-Mer
  Brest
  Douarnenez
  Concarneau
  Nantes-St Nazaire |
| Ireland | Killybegs (3) |
| Latvia | Riga
  Liepaja
  Ventspils |
| Lithuania | Klaipeda |
| Netherlands | Eemshaven
  Ijmuiden
  Harlingen
  Velsen-Noord
  Vlissingen
  Scheveningen (3) |
| Poland | Gdynia
  Świnoujście
  Szczecin |
| Portugal | Lisbon port
  Leixões
  Aveiro
  Setúbal
  Madeira
  Funchal
  Azores
  Ponta Delgada, Ilha de S. Miguel
  Horta, Ilha do Faial
  Praia da Vitória, Ilha Terceira (3) |
| Sweden | Gothenburg |
| United Kingdom | Grimsby
  Hull
  Immingham
  Peterhead
  Aberdeen (3)

  Fraserburgh (3)

  Lerwick (3)

  Scrabster (3)

  Kinlochbervie (3)

  Lochinver (3)

  Ullapool (3) |

Member State

Designated Ports

Denmark

Esbjerg

Fredericia

Hanstholm

Hirtshals

København

Skagen

Ålborg

Århus

Germany

Hamburg

Cuxhaven

Bremerhaven

Sassnitz

Rostock

Spain

Vigo port area

Marin

France

Boulogne-sur-Mer

Brest

Douarnenez

Concarneau

Nantes-St Nazaire

Ireland

Killybegs (3)

Latvia

Riga

Liepaja

Ventspils

Lithuania

Klaipeda

Netherlands

Eemshaven

Ijmuiden

Harlingen

Velsen-Noord

Vlissingen

Scheveningen (3)

Poland

Gdynia

Świnoujście

Szczecin

Portugal

Lisbon port

Leixões

Aveiro

Setúbal

Madeira

Funchal

Azores

Ponta Delgada, Ilha de S. Miguel

Horta, Ilha do Faial

Praia da Vitória, Ilha Terceira (3)

Sweden

Gothenburg

United Kingdom

Grimsby

Hull

Immingham

Peterhead

Aberdeen (3)

Fraserburgh (3)

Lerwick (3)

Scrabster (3)

Kinlochbervie (3)

Lochinver (3)

Ullapool (3)

---

(1)  The list with more detailed information is also available on the websites of the Commission and NEAFC.

(2)  OJ L 19, 23.1.2008, p. 1.

(3)  Not an EU Border Inspection Post (BIP).

---

NOTICES CONCERNING THE EUROPEAN ECONOMIC AREA

EFTA Surveillance Authority

| 5.6.2008 | EN | Official Journal of the European Union | C 138/20 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/20

---

Communication from the EFTA Surveillance Authority under to Article 4(1)(a) of the Act referred to in point 64(a) of Annex XIII to the EEA Agreement (Council Regulation (EEC) No 2408/92 on access for Community air carriers to intra-Community air routes)

Imposition of new public service obligations in respect of scheduled air services on the route Værøy (heliport)-Bodø v.v.

(2008/C 138/10)

1.   INTRODUCTION

Pursuant to Article 4(1)(a) of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, Norway has decided to impose public service obligations as of 1 August 2008 in respect of scheduled air services on the following routes:

| | Værøy-Bodø v.v. |
| --- | --- |

Værøy-Bodø v.v.

2.   THE PUBLIC SERVICE OBLIGATIONS INCLUDE THE FOLLOWING SPECIFICATIONS FOR THE ROUTE AREA VÆRØY-BODØ V.V.

2.1.   Minimum frequencies, seating capacity, routing and timetables

The following requirements apply to frequencies, seating capacity, routing and timetables

| — | where nothing else is specified, the requirements apply throughout the year, |
| --- | --- |

—

where nothing else is specified, the requirements apply throughout the year,

| — | where requirements to seating capacity apply, the number of seats offered shall be adjusted in accordance with the rules laid down in Annex A to this publication, |
| --- | --- |

—

where requirements to seating capacity apply, the number of seats offered shall be adjusted in accordance with the rules laid down in Annex A to this publication,

| — | account shall be taken of the public demand for air travel. |
| --- | --- |

—

account shall be taken of the public demand for air travel.

Frequencies

| — | 1 February-31 October: minimum two daily return services Monday-Friday, one on Saturday and one on Sunday, |
| --- | --- |

—

1 February-31 October: minimum two daily return services Monday-Friday, one on Saturday and one on Sunday,

| — | 1 November-31 January: minimum one daily return service Monday-Friday, one on Saturday and one on Sunday, |
| --- | --- |

—

1 November-31 January: minimum one daily return service Monday-Friday, one on Saturday and one on Sunday,

| — | if a procedure is established for instrument approach (IFR) to Værøy, the requirement of minimum two daily return services Monday-Friday, one on Saturday and one on Sunday applies throughout the year. |
| --- | --- |

—

if a procedure is established for instrument approach (IFR) to Værøy, the requirement of minimum two daily return services Monday-Friday, one on Saturday and one on Sunday applies throughout the year.

Seating capacity

| — | 1 February-31 October: in both directions at least 180 seats shall be offered weekly, |
| --- | --- |

—

1 February-31 October: in both directions at least 180 seats shall be offered weekly,

| — | 1 November-31 January: in both directions at least 105 seats shall be offered weekly, |
| --- | --- |

—

1 November-31 January: in both directions at least 105 seats shall be offered weekly,

| — | if a procedure is established for instrument approach (IFR) to Værøy, the requirement that in both directions at least 180 seats shall be offered weekly, applies throughout the year, |
| --- | --- |

—

if a procedure is established for instrument approach (IFR) to Værøy, the requirement that in both directions at least 180 seats shall be offered weekly, applies throughout the year,

| — | if the number of seats occupied during the period 1 January-30 June or 1 August-30 November exceeds 70 % of the number of seats offered, the carrier shall increase the seating capacity in accordance with the rules laid down in Annex A to this publication, |
| --- | --- |

—

if the number of seats occupied during the period 1 January-30 June or 1 August-30 November exceeds 70 % of the number of seats offered, the carrier shall increase the seating capacity in accordance with the rules laid down in Annex A to this publication,

| — | if the number of seats occupied during the period 1 January-30 June or 1 August-30 November is lower than 35 % of the number of seats offered, the carrier may reduce the seating capacity in accordance with the rules laid down in Annex A to this publication. |
| --- | --- |

—

if the number of seats occupied during the period 1 January-30 June or 1 August-30 November is lower than 35 % of the number of seats offered, the carrier may reduce the seating capacity in accordance with the rules laid down in Annex A to this publication.

Routing

The required services must be non-stop.

Timetables

The following apply to the required flights on Monday-Friday (local times):

| — | 1-28/29 February: at least 3 hours and 30 minutes between first arrival in Bodø and last departure from Bodø, |
| --- | --- |

—

1-28/29 February: at least 3 hours and 30 minutes between first arrival in Bodø and last departure from Bodø,

| — | 1 March-30 September: at least 5 hours and 30 minutes between first arrival in Bodø and last departure from Bodø, |
| --- | --- |

—

1 March-30 September: at least 5 hours and 30 minutes between first arrival in Bodø and last departure from Bodø,

| — | 1-31 October: at least 5 hours and 15 minutes between first arrival in Bodø and last departure from Bodø. |
| --- | --- |

—

1-31 October: at least 5 hours and 15 minutes between first arrival in Bodø and last departure from Bodø.

If a procedure is established for instrument approach (IFR) to Værøy, the requirement of at least 5 hours and 30 minutes between first arrival in Bodø and last departure applies throughout the year.

2.2.   Aircraft category

Helicopters registered for minimum 15 passengers shall be used for the required flights.

2.3.   Technical and operative conditions

Carriers' attention is especially drawn to technical and operative conditions applying at the airports. For further information, please contact:

| Luftfartstilsynet (Civil Aviation Authority) |
| --- |
| PO Box 243 |
| N-8001 Bodø |
| Tel. (47) 75 58 50 00 |

Luftfartstilsynet (Civil Aviation Authority)

PO Box 243

N-8001 Bodø

Tel. (47) 75 58 50 00

2.4.   Fares

Maximum basic fully flexible one-way fare (the maximum fare) in the operating year beginning 1 August 2008, must not exceed the following rate:

| Værøy-Bodø | NOK 634. |
| --- | --- |

Værøy-Bodø

NOK 634.

For each subsequent operating year the maximum fares shall be adjusted on 1 August within the limit of the consumer price index for the 12-month period ending 15 June the same year, as made public by Statistics Norway (http://www.ssb.no).

The carrier is responsible for making tickets available at a price not exceeding the maximum fare through all sales channels belonging to the carrier.

Maximum fare applies also to tickets offered by other companies operating within the concern of the carrier. The carrier is responsible for the compliance of the requirements by such companies.

The maximum fare shall include all taxes and fees to the authorities, and all other extra charges the carrier adds on when issuing the tickets.

The carrier shall be party to the domestic interline agreements in force at any time, and shall offer all discounts available under such agreements.

3.   ADDITIONAL CONDITIONS FOLLOWING A TENDER PROCEDURE

Following a tender procedure, which limits access to the routes to one carrier, these conditions apply in addition:

Fares

| — | all connecting fares to/from other air services shall be offered on equal terms for all carriers. Exempted from this are connecting fares to/from other services carried out by the tenderer, provided that the fare is maximum 40 % of the fully flexible fare, |
| --- | --- |

—

all connecting fares to/from other air services shall be offered on equal terms for all carriers. Exempted from this are connecting fares to/from other services carried out by the tenderer, provided that the fare is maximum 40 % of the fully flexible fare,

| — | bonus points from frequent flyer programmes can neither be earned nor redeemed on the flights, |
| --- | --- |

—

bonus points from frequent flyer programmes can neither be earned nor redeemed on the flights,

| — | social discounts shall be granted in accordance with the guidelines laid down in Annex B to this notification. |
| --- | --- |

—

social discounts shall be granted in accordance with the guidelines laid down in Annex B to this notification.

Transfer conditions

| — | all conditions set out by the carrier for the transfer of passengers to and from other carriers' routes, including connecting times and through check-in of tickets and baggage, shall be objective and non-discriminatory. |
| --- | --- |

—

all conditions set out by the carrier for the transfer of passengers to and from other carriers' routes, including connecting times and through check-in of tickets and baggage, shall be objective and non-discriminatory.

4.   REPLACEMENT AND LIFTING OF PREVIOUS PUBLIC SERVICE OBLIGATIONS

These public service obligations replace those previous published in OJ C 268, and the EEA Supplement No S 54 of 4 November 2004, regarding air services on the route Værøy-Bodø v.v.

5.   INFORMATION

Further information can be obtained from:

| Ministry of Transport and Communications |
| --- |
| PO Box 8010 Dep. |
| N-0030 Oslo |
| Tel. (47) 22 24 83 53 |
| Fax (47) 22 24 56 09 |

Ministry of Transport and Communications

PO Box 8010 Dep.

N-0030 Oslo

Tel. (47) 22 24 83 53

Fax (47) 22 24 56 09

---

ANNEX A

ADJUSTMENT OF PRODUCTION/AVAILABLE SEATS — PRODUCTION ADJUSTMENT CLAUSE

1.   Purpose of the production adjustment clause

The purpose of the production adjustment clause is to ensure that supplied capacity/seats offered by the operator is adjusted to changes in market demand. Whenever the number of passengers increases significantly and exceeds the following specified limits for the percentage of seats occupied at any time (the passenger load factor), the operator shall increase available seats offered. The operator may accordingly decrease available seats offered when the number of passengers decreases significantly. See specification below in 3.

2.   Periods for measuring passenger load factors

The periods during which the passenger load factor shall be monitored and assessed range from 1 January to 30 June inclusive and 1 August to 30 November inclusive.

3.   Conditions for changing production/available seats offered

3.1.   Conditions for increasing production

| 3.1.1. | An increase in production/available seats offered shall take place when the average passenger load factor on each single route encompassed by public service obligations is higher than 70 percent. When the average passenger load factor on these routes exceeds 70 percent in any of the periods mentioned in 2, the operator shall increase production/available seats offered by at least 10 percent on these routes, at latest from the start of the following IATA traffic season. Production/available seats offered shall be increased at least so that the average passenger load factor does not exceed 70 percent. |
| --- | --- |

3.1.1.

An increase in production/available seats offered shall take place when the average passenger load factor on each single route encompassed by public service obligations is higher than 70 percent. When the average passenger load factor on these routes exceeds 70 percent in any of the periods mentioned in 2, the operator shall increase production/available seats offered by at least 10 percent on these routes, at latest from the start of the following IATA traffic season. Production/available seats offered shall be increased at least so that the average passenger load factor does not exceed 70 percent.

| 3.1.2. | When increasing production/available seats offered according to the above, the new production may take place by using aircraft with lower seating capacity than specified in the original tender, if preferred by the operator. |
| --- | --- |

3.1.2.

When increasing production/available seats offered according to the above, the new production may take place by using aircraft with lower seating capacity than specified in the original tender, if preferred by the operator.

3.2.   Conditions for decreasing production

| 3.2.1. | A decrease in production/available seats offered may take place when the average passenger load factor on each single route encompassed by public service obligations is lower than 35 percent. When the average passenger load factor on these routes is lower than 35 percent in any of the periods mentioned in 2, the operator may decrease production/available seats offered by no more than 25 percent on these routes from the first day after the end of the above mentioned periods. |
| --- | --- |

3.2.1.

A decrease in production/available seats offered may take place when the average passenger load factor on each single route encompassed by public service obligations is lower than 35 percent. When the average passenger load factor on these routes is lower than 35 percent in any of the periods mentioned in 2, the operator may decrease production/available seats offered by no more than 25 percent on these routes from the first day after the end of the above mentioned periods.

| 3.2.2. | On routes with more than two daily frequencies offered in each direction, reduction in production according to 3.2.1 shall take place by reducing frequencies offered. The only exception from this is when the operator uses aircraft with larger seating capacity than the minimum specified in the imposition of public service obligations. The operator may then use smaller aircraft, however, not with lower seating capacity than the minimum specified in the imposition of public service obligations. |
| --- | --- |

3.2.2.

On routes with more than two daily frequencies offered in each direction, reduction in production according to 3.2.1 shall take place by reducing frequencies offered. The only exception from this is when the operator uses aircraft with larger seating capacity than the minimum specified in the imposition of public service obligations. The operator may then use smaller aircraft, however, not with lower seating capacity than the minimum specified in the imposition of public service obligations.

| 3.2.3. | On routes with only one or two daily frequencies offered in each direction, reduction in available seats offered can only take place by using aircraft with lower seating capacity than specified in the imposition of public service obligations. |
| --- | --- |

3.2.3.

On routes with only one or two daily frequencies offered in each direction, reduction in available seats offered can only take place by using aircraft with lower seating capacity than specified in the imposition of public service obligations.

4.   Procedures for changes in production

| 4.1. | The Norwegian Ministry of Transport and Communications has the responsibility subject to law for approving proposed time schedules submitted by the operator, including changes in available seats. Reference is made to Circular N-3/2005 by the Norwegian Ministry of Transport and Communications, included in the tender file. |
| --- | --- |

4.1.

The Norwegian Ministry of Transport and Communications has the responsibility subject to law for approving proposed time schedules submitted by the operator, including changes in available seats. Reference is made to Circular N-3/2005 by the Norwegian Ministry of Transport and Communications, included in the tender file.

| 4.2. | If production/available seats offered shall be reduced according to 3.2, a proposal for a new traffic program shall be circulated to the affected county councils, and these shall have sufficient time to make a statement before the change is put into effect. If the proposed new traffic program includes changes violating any other requirements than the number of flights and seat capacity, laid down in the public service obligations, the new traffic program must be sent to the Ministry of Transport and Communications for approval. |
| --- | --- |

4.2.

If production/available seats offered shall be reduced according to 3.2, a proposal for a new traffic program shall be circulated to the affected county councils, and these shall have sufficient time to make a statement before the change is put into effect. If the proposed new traffic program includes changes violating any other requirements than the number of flights and seat capacity, laid down in the public service obligations, the new traffic program must be sent to the Ministry of Transport and Communications for approval.

| 4.3. | When production shall be increased according to 3.1, time schedules for new production/new seats should be agreed between the operator and the county (counties) as administrative unit affected. |
| --- | --- |

4.3.

When production shall be increased according to 3.1, time schedules for new production/new seats should be agreed between the operator and the county (counties) as administrative unit affected.

| 4.4. | If new production shall be offered according to 3.1, and the operator and the county (counties) as administrative unit affected cannot agree upon time schedules according to 4.3, the operator can seek approval according to 4.1 for a different time schedule for the new production/new seats offered from the Norwegian Ministry of Transport and Communications. This does not mean that the operator may apply for approval of a time schedule that does not include the required increase in production. There must exist substantial reasons if the Ministry shall approve proposals that diverge from those which could be agreed by the counties. |
| --- | --- |

4.4.

If new production shall be offered according to 3.1, and the operator and the county (counties) as administrative unit affected cannot agree upon time schedules according to 4.3, the operator can seek approval according to 4.1 for a different time schedule for the new production/new seats offered from the Norwegian Ministry of Transport and Communications. This does not mean that the operator may apply for approval of a time schedule that does not include the required increase in production. There must exist substantial reasons if the Ministry shall approve proposals that diverge from those which could be agreed by the counties.

5.   Unchanged financial compensation when changing production

| 5.1. | The financial compensation to the operator remains unchanged when increasing production according to 3.1. |
| --- | --- |

5.1.

The financial compensation to the operator remains unchanged when increasing production according to 3.1.

| 5.2. | The financial compensation to the operator remains unchanged when decreasing production according to 3.2. |
| --- | --- |

5.2.

The financial compensation to the operator remains unchanged when decreasing production according to 3.2.

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ANNEX B

PROVISIONS ON SOCIAL DISCOUNTS

| 1. | On routes where the Norwegian Ministry of Transport and Communication purchases air services in accordance with public service obligations, social discount applies to the following groups of people:






  (a) | persons aged from 67 years at the day of departure; |
| --- | --- | --- |

1.

On routes where the Norwegian Ministry of Transport and Communication purchases air services in accordance with public service obligations, social discount applies to the following groups of people:

(a)

persons aged from 67 years at the day of departure;

| (b) | blind persons aged from 16 years; |
| --- | --- |

(b)

blind persons aged from 16 years;

| (c) | disabled persons aged from 16 years who receive disability pension according to the Norwegian Act of 28 February 1997 No 19 on National insurance [Folketrygdloven] Chapter 12, or similar law in any EEA country; |
| --- | --- |

(c)

disabled persons aged from 16 years who receive disability pension according to the Norwegian Act of 28 February 1997 No 19 on National insurance [Folketrygdloven] Chapter 12, or similar law in any EEA country;

| (d) | students aged from 16 years attending special schools for people with hearing problems; |
| --- | --- |

(d)

students aged from 16 years attending special schools for people with hearing problems;

| (e) | accompanying spouse/partner irrespective of age, or a person who has to accompany persons included in (a)-(d); |
| --- | --- |

(e)

accompanying spouse/partner irrespective of age, or a person who has to accompany persons included in (a)-(d);

| (f) | travellers aged under 16 years at the day of departure. |
| --- | --- |

(f)

travellers aged under 16 years at the day of departure.

| 2. | The discount for people included in Section 1 shall be 50 percent of maximum fare. |
| --- | --- |

2.

The discount for people included in Section 1 shall be 50 percent of maximum fare.

| 3. | This discount is not applicable when the travel is paid for by the government and/or social security office. The person entitled to discount decides the need for escort. |
| --- | --- |

3.

This discount is not applicable when the travel is paid for by the government and/or social security office. The person entitled to discount decides the need for escort.

| 4. | An adult (aged from 16 years) may carry a child aged under 2 years for free, provided that the child does not occupy its own seat and when travelling together on the entire journey. |
| --- | --- |

4.

An adult (aged from 16 years) may carry a child aged under 2 years for free, provided that the child does not occupy its own seat and when travelling together on the entire journey.

| 5. | Following documents may be required by the traveller present at time of ticketing:






  (a) | persons mentioned in Section 1 point (a) must show an official document with picture and day of birth; |
| --- | --- | --- |

5.

Following documents may be required by the traveller present at time of ticketing:

(a)

persons mentioned in Section 1 point (a) must show an official document with picture and day of birth;

| (b) | persons mentioned in Section 1 point (b) and (c) must provide proof of eligibility by means of official documentation from the Norwegian National insurance or ‘Norges Blindeforbund’. Persons from other EEA countries must provide similar documentation from their home country; |
| --- | --- |

(b)

persons mentioned in Section 1 point (b) and (c) must provide proof of eligibility by means of official documentation from the Norwegian National insurance or ‘Norges Blindeforbund’. Persons from other EEA countries must provide similar documentation from their home country;

| (c) | persons mentioned in Section 1 point (d) must present a student certificate and a letter from the social security office stating that the student is receiving pension according to the Norwegian law of ‘Folketrygd’. Persons from other EEA countries must provide similar documentation from their home country. |
| --- | --- |

(c)

persons mentioned in Section 1 point (d) must present a student certificate and a letter from the social security office stating that the student is receiving pension according to the Norwegian law of ‘Folketrygd’. Persons from other EEA countries must provide similar documentation from their home country.

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SCHEDULED AIR SERVICES VÆRØY-BODØ V.V. (NORWAY)

INVITATION TO TENDER

1.   Introduction

Norway has decided to publish a new tender for operation of scheduled air services on the route Værøy-Bodø v.v. for the period 1 August 2008-31 July 2011.

With effect from 1 August 2008, Norway has decided to amend the public service obligations on scheduled regional air services on the route Værøy-Bodø v.v., previously imposed according to Article 4(1)(a) of Council Regulation (EEC) 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes. The amended obligations were published in the Official Journal of the European Union (reference number and date of publication in OJ) and in the EEA Supplement (reference to publication in EEA supplement).

Insofar as by two months from the latest day of submission of tender (cf. Section 6) no air carrier has provided documentary evidence to the Ministry of Transport and Communications of commencing scheduled flights on 1 August 2008 in conformity with the amended public service obligations on the route area stated in Section 2 of this publication, the Ministry will apply the tender procedure provided for by Article 4(1)(d)-(h) of Regulation (EEC) 2408/92, thereby limiting access as of 1 August 2008 to only one air carrier. The purpose of this invitation is to invite tenders which will be used as basis for assignment of such exclusive rights.

Below, the most important parts of the Conditions of Tenders will be reproduced. The complete Invitation to Tender, can be downloaded from:

http://www.regjeringen.no/nb/dep/sd/dok/andre/Anbud.html

or be obtained free of charge on application to:

| Ministry of Transport and Communications |
| --- |
| PO Box 8010 Dep. |
| N-0030 Oslo |
| Tel. (47) 22 24 83 53 |
| Fax (47) 22 24 56 09 |

Ministry of Transport and Communications

PO Box 8010 Dep.

N-0030 Oslo

Tel. (47) 22 24 83 53

Fax (47) 22 24 56 09

All tenderers are obliged to acquaint themselves with the complete Invitation to Tender.

2.   Services covered by the invitation

The invitation comprises scheduled flights from 1 August 2008 until 31 July 2011, in accordance with the public service obligations mentioned in Section 1. The following route area and corresponding tender are covered by the competition:

| | Route area |
| --- | --- |

Route area

| | Værøy-Bodø v.v. |
| --- | --- |

Værøy-Bodø v.v.

In the public service obligations special requirements apply if a procedure is established for instrument approach (IFR) to Værøy. Establishment of an instrument approach procedure will trigger requirements for increased production on the route in the months of November, December and January. The tenderers shall submit an alternative price for the entire tender period as well as for each single operating year for the increase of production if an instrument approach procedure to Værøy is established. The tender shall calculate tender budget for both alternatives with and without increased production. The tender budget shall show the allocation of expenses and revenues for each of the tenders and clearly state the compensation required for both alternatives.

In case a carrier submits a tender where the claim for compensation is NOK zero, it will be understood as a whish from the carrier to operate the route on an exclusive basis, but without any compensation from the Norwegian State.

3.   Eligibility to tender

All air carriers holding a valid operating licence pursuant to Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers are eligible to tender.

4.   Tender procedure

The invitation to tender is subject to the provisions of Article 4(1)(d)-(i) of Regulation (EEC) No 2408/92, and Section 4 of the Norwegian Regulation No 256 of 15 April 1994 on tender procedures in connection with public service obligations.

The procurement will be effected by means of an open tender procedure.

The Ministry of Transport and Communications reserves the right to apply subsequent negotiations if only one tender is received at the closing date for submission of tender, or if only one tender is not rejected. Such negotiation shall be in accordance with the public service obligations imposed. In addition, the parties are not entitled to make substantial amendments to the original terms of contract during such negotiations. If the subsequent negotiations do not lead to an acceptable solution, the Ministry of Transport and Communications reserves the right to cancel the entire procedure. In that case, a new invitation to tender on new terms may be published.

The Ministry of Transport and Communications may make procurements through negotiations without publication in advance if no tenders are submitted. In that case, no substantial amendments must be made in the original public service obligations or in the remaining terms of contract. In case reasonable grounds appear as a result of the tender, The Ministry of Transport and Communications reserves the right to refuse each and all tenders.

The tender is binding on the tenderer until the tender procedure is ended, or the award is made.

5.   The tender

The tender shall be framed in accordance with the requirements in Section 5 of the Conditions of Tender, including the requirements listed in the public service obligations.

6.   Submission of tender

The deadline for submission of tender is 7 July 2008 at 12.00 local time. The tender must be received by the Ministry of Transport and Communications at the address mentioned in Section 1 not later than the deadline for submission of tender.

The tender shall be delivered either personally at the office address of the Ministry of Transport and Communications, or sent by post or courier services.

Tenders received too late will be rejected. However, tenders received after the deadline for submission of tender, but before the opening date, will not be rejected if it clearly appears that the dispatch is sent so early that it normally should have been received before the closing date. Receipt from the delivery of the dispatch is accepted as evidence for the delivery, and the time for delivery.

All tenders must be submitted in 3 — three — copies.

7.   Award of contract

| 7.1. | As the principle rule, the award shall be made to the tender requiring the lowest amount of compensation. For each route area this implies that the contract will be awarded to the tender with the lowest claim for compensation for the whole contract period from 1 August 2008 until 31 July 2011. The lowest claim for compensation will be determined by means of a calculatory figure, based on the two submitted alternative prices. The calculatory figure equals the sum of weighted claims for compensation. The price for the situation where a procedure is established for instrument approach to Værøy will be weighted 60 percent. The price without is weighted 40 percent. The contract will be awarded to the tender with lowest calculation figure for the contract period from 1 August 2008 to 31 July 2011. |
| --- | --- |

7.1.

As the principle rule, the award shall be made to the tender requiring the lowest amount of compensation. For each route area this implies that the contract will be awarded to the tender with the lowest claim for compensation for the whole contract period from 1 August 2008 until 31 July 2011. The lowest claim for compensation will be determined by means of a calculatory figure, based on the two submitted alternative prices. The calculatory figure equals the sum of weighted claims for compensation. The price for the situation where a procedure is established for instrument approach to Værøy will be weighted 60 percent. The price without is weighted 40 percent. The contract will be awarded to the tender with lowest calculation figure for the contract period from 1 August 2008 to 31 July 2011.

| 7.2. | In case award can not be made because there are tenders requiring identical amounts of compensation, the award shall be made to the tender offering the highest number of seats for the whole contract period. |
| --- | --- |

7.2.

In case award can not be made because there are tenders requiring identical amounts of compensation, the award shall be made to the tender offering the highest number of seats for the whole contract period.

8.   Contract period

The tender contract will be entered into for the period from 1 August 2008 until 31 July 2011. The contract is non-terminable, except for those situations described in the contract provisions reproduced in Section 11.

9.   Financial compensation

The operator is entitled to financial compensation from the Ministry of Transport and Communications in accordance with the tender agreement. The compensation shall be specified for each of the three operating years, and for the entire contract period.

No adjustment of the compensation shall be made for the first operating year.

For the second and third operating year, the compensation will be recalculated on the basis of the tender budget adjusted for operating revenues and expenses. These adjustments must be within the limits defined by Statistics Norway's consumer price index for the 12-month period ending on 15 June the same year.

No change shall be made in the compensation as a result of the production volume being adjusted upwards or downwards pursuant to Section 5.1 second paragraph of the Terms of Contract.

This is subject to the proviso that the Storting (the Norwegian Parliament), when adopting its annual budget, makes the necessary funds available to the Ministry of Transport and Communications to cover the compensation requirements.

The operator shall retain all revenues generated by the service. If the revenues are greater or the expenditure smaller than the figures on which the tender budget is based, the operator may retain the balance. Correspondingly, the Ministry of Transport and Communications is not obliged to cover any negative balance in relation to the tender budget.

All public charges, including aviation charges, are payable by the operator.

Notwithstanding any action for damages, the financial compensation shall be reduced in proportion to the total number of flights cancelled for reasons directly attributable to the carrier, if the number of flights cancelled for such reasons during an operating year exceeds 1,5 percent of the planned number of flights in accordance with the approved time schedule.

If a procedure is established for instrument approach (IFR) to Værøy c.f. Section 2, compensation will be paid for the triggered IFR-requirements from the same month.

10.   Renegotiation

If, during the contract period, material or unforeseen changes occur in the assumptions on which this contract is based, each of the parties may request negotiations for revision of the contract. Such request must be made three months at the latest after the change has occurred.

Material changes in the public charges for which the operator is liable always constitute grounds for renegotiation.

If new statutory or regulatory requirements, or orders issued by the Civil Aviation Authority result in an airfield having to be used in a different manner than originally assumed by the operator, the parties shall endeavour to negotiate amendments in the contract that allow the operator to continue operations for the rest of the contract period. If the parties fail to reach agreement, the operator is entitled to compensation pursuant to the rules relating to shutting down or closure (Section 11) insofar as they are applicable.

11.   Termination of contract following breach of contract or unforeseen changes in important conditions

Subject to the restrictions following from insolvency law, the Ministry of Transport and Communications may terminate the contract with immediate effect if the operator becomes insolvent, initiate debt settlement proceedings, goes bankrupt or is subject to any other situation dealt with in Section 14(2) of the Norwegian Regulation No 256 of 15 April 1994 on tender procedures in connection with public service obligations.

The Ministry of Transport and Communications may terminate the contract with immediate effect if the operator loses, or is not able to renew, his licence.

If, due to force majeure or other circumstances beyond the operator's control, the operator has been unable to fulfil its contractual obligations for more than four of the last six months, the contract can be terminated by both parties by giving one month's written notice.

If the Storting decides to close an airfield, or if an airfield is closed as a result of an order issued by the Civil Aviation Authority, the parties' ordinary contractual obligations lapse from such time as the airfield is actually shut down or closed.

If the period of time between the operator first being informed about the shutting down or closure and the actual shutting down or closure is greater than one year, the operator is not entitled to compensation for any financial loss it incurs as a result of the termination of the contract. If the period mentioned is less than one year, the operator is entitled to be restored to the financial situation it would have been in had operations been continued for one year from the date it was notified of the shutting down or closure, or alternatively until 31 July 2011 if this date is earlier.

In the event of material breach of contract, the contract may be cancelled with immediate effect by the other party.

---

| 5.6.2008 | EN | Official Journal of the European Union | C 138/30 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/30

---

Invitation to submit comments pursuant to Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement on State aid with regard to the property transactions engaged in by the municipality of Time concerning property numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 in Time

(2008/C 138/11)

By means of Decision No 717/07/COL of 19 December 2007, reproduced in the authentic language on the pages following this summary, the EFTA Surveillance Authority initiated proceedings pursuant to Article 1(2) in Part I of Protocol 3 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (Surveillance and Court Agreement). The Norwegian authorities have been informed by means of a copy of the decision.

The EFTA Surveillance Authority hereby gives the EFTA States, EU Member States and interested parties notice to submit their comments on the measure in question within one month from the publication of this notice to:

| EFTA Surveillance Authority |
| --- |
| Registry |
| Rue Belliard 35 |
| B-1040 Brussels |

EFTA Surveillance Authority

Registry

Rue Belliard 35

B-1040 Brussels

The comments will be communicated to the Norwegian authorities. Confidential treatment of the identity of the interested party submitting the comments may be requested in writing, stating the reasons for the request.

SUMMARY

PROCEDURE

On 3 March 2007, the Authority received a complaint from a community association concerning the sales of property numbers 1/152, 1/301, 1/630, 4/165 in Time municipality by the municipal authorities to two different private entities, as well as the sale of title number 2/70 (Bryne stadium which also includes title No 2/32) by Bryne fotballklubb (a football club), previously given to the club by the municipality, to a private investor.

By letter dated 9 May 2007, a private investor sent a complaint to the Authority concerning the sale by Time municipality of one of the abovementioned properties, i.e. number 4/165.

By letter dated 19 June 2007, Time pensjonistparti (a political party) complained about an exclusive right allegedly granted to Forum Jæren AS with respect to the development of 200 underground parking spaces at the property in the centre of the Bryne to be used for the construction of a new upper secondary school (title numbers 1/125, 2/277, 2/278 and 2/284).

Following correspondence with the Norwegian authorities, the Authority has decided to open a formal investigation procedure with respect to the property transactions engaged in by the municipality of Time concerning property numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 in Time. By contrast, it has found that, at present, the transactions relating to title numbers 1/125, 2/277, 2/278, 2/284 in Time do not involve the granting of State aid.

ASSESSMENT

The sale of title numbers 1/152, 1/301 and 1/630 to Grunnsteinen AS

By a sales agreement dated 25 August 2007, Time municipality sold title numbers 1/152 (1 312 square metres), 1/301 (741 square metres) and 1/630 (1 167 square metres) in the centre of the municipal centre of Time municipality, Bryne, to the private property developer Grunnsteinen AS. At the time of the transaction, it appears that title number 1/152 was used as a municipal car park with 44 parking spaces.

Grunnsteinen did not pay any money for the properties, but undertook to build underground parking spaces on title number 1/152, of which 65 were to be transferred to Time municipality. According to the municipal authorities, the obligation to build the parking spaces replaces ordinary payment for the property; i.e. the existing 44 parking spaces above ground would be compensated for by 44 new underground spaces, and the value of the additional 21 spaces would correspond to the value of the two additional properties transferred. Norway has presented calculations according to which the value of the 21 additional parking spaces was NOK 2 625 000, whereas the value of the two additional properties was assessed at NOK 2 516 400. These calculations were based on a value assessment of title number 1/630, showing a price per square metre of NOK 600, and calculations by the construction firm Skanska arriving at a cost price of NOK 150 000 per parking space in an underground car park (excluding VAT and costs of buying/renting the land).

If public land is sold below market value, State resources within the meaning of Article 61(1) EEA must be deemed to have been involved and a selective advantage to have been conferred on Grunnsteinen. The Authority takes the preliminary view that this was the case, for the following reasons:

Firstly, the buyer did not pay any money for the properties. Thus, prima facie, the transaction would seem to involve aid, in the absence of convincing evidence to the contrary.

In that regard, the procedures laid down in the Authority's guidelines on the Sale of Land and Buildings by public authorities do not seem to have been complied with, as no bidding round was organised and only one of the properties transferred was assessed. In the Authority's view, this value assessment also appears to be too superficial to meet the requirements of the guidelines.

The Norwegian authorities also claim that the transaction constitutes an exchange of real property whereby the municipality gives three properties, including one in use as a car park, to the property developer, and receives a higher number of underground parking spaces in return. This reasoning would seem to presuppose that the value assessments presented to the Authority are held to be reliable. However, as set out above, the assessment of title number 1/630 seems to have several shortcomings. Similarly, the cost estimate for the future underground parking spaces seems to be based exclusively on general experience, not taking the particular characteristics of the property and the project in question into account. Thus, the transaction does not seem to have taken place on market terms.

If this were to be confirmed, Grunnsteinen's position would also be strengthened compared with that of its competitors. Moreover, the land might have been of interest for buyers established in other EEA States. The Authority's preliminary view is therefore that the transaction is capable of distorting competition and affecting intra-EEA trade.

State aid within the meaning of Article 61(1) EEA therefore seems to be present.

The sale of title number 4/165 to Bryne Industripark AS

On 31 August 2005, Time municipality and the private property developer Bryne Industripark AS signed a sales agreement concerning title No 4/165 at Håland in Time. The title comprises 56 365 square metres of industrial land, and the sales price was fixed at NOK 4,7 million (or approximately NOK 83 per square metre).

Neither a public bidding round nor a value assessment was organised prior to the sale. The price seems to have been calculated on the basis of the price at which Time municipality bought the property in 1999, to which capital costs, regulatory work and administrative costs were added. However, in October 2006 the municipality decided that industrial land, for the future, should be sold at market price, as the method applied so far would seem to lead to land being sold off too cheaply.

Against that background, the Authority takes the preliminary view that the land was sold below market value, and that State resources within the meaning of Article 61(1) EEA must be deemed to have been involved and a selective advantage to have been conferred on Bryne Industripark. If it were to be confirmed, Bryne Industripark's position would also be strengthened compared with that of its competitors. Moreover, the land might have been of interest for buyers established in other EEA States. The Authority's preliminary view is, therefore, that the transaction is capable of distorting competition and affecting intra-EEA trade.

State aid within the meaning of Article 61(1) EEA therefore seems to be present.

The sale of title numbers 2/70 and 2/32 to Bryne fotballklubb

By agreement dated 8 August 2003, Time municipality transferred the title to Bryne stadium, title numbers 2/32 and 2/70, an area of approximately 53 000 square metres, to Bryne fotballklubb (Bryne FK), a local football club currently playing in the 1st division (i.e. below the Premier League).

As the club did not pay any money for the land, the Authority takes the view that State resources within the meaning of Article 61(1) EEA must be deemed to have been involved and a selective advantage to have been conferred on Bryne FK. The Norwegian authorities have argued that Bryne FK is not an undertaking for the purposes of the EEA Agreement. However, from Bryne FK's homepage it appears that the club is, inter alia, active in selling and buying professional players, providing entertainment in the form of football matches and in offering advertising space in return for payment. Such activities would seem to qualify as the provision of services on a market and therefore to be economic in nature. The Authority therefore takes the preliminary view that Bryne FK constitutes an undertaking for the purposes of Article 61(1) EEA.

The transaction strengthens Bryne FK's position compared with that of its competitors. Moreover, the land might have been of interest for buyers established in other EEA States. The Authority's preliminary view is, therefore, that the transaction is capable of distorting competition and affecting intra-EEA trade.

State aid within the meaning of Article 61(1) EEA therefore seems to be present.

COMPATIBILITY

The information available to the Authority does not seem to indicate that any aid was granted to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment, to promote a project of common European interest or to facilitate the development of certain economic activities. Moreover, any aid granted to the sports club would not seem to promote cultural development. Against that background, Article 61(3)(a)-(c) EEA appears to be inapplicable.

PROCEDURAL REQUIREMENTS AND RECOVERY OF UNLAWFUL AID

Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement constitutes a standstill obligation. Article 14 in Part II of that Protocol provides that, in the event of a negative decision, all unlawful aid may be recovered from the beneficiary.

CONCLUSION

In light of the foregoing considerations, the Authority decided to open the formal investigation procedure in accordance with Article 1(2) of Part I of Protocol 3 to the Surveillance and Court Agreement with regard to the property transactions engaged in by the municipality of Time concerning property numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 in Time.

EFTA SURVEILLANCE AUTHORITY DECISION

No 717/07/COL

of 19 December 2007

on the property transactions engaged in by the municipality of Time concerning property numbers 1/152, 1/301, 1/630, 4/165, 2/70, 2/32, 1/125, 2/277, 2/278, 2/284 in Time

(NORWAY)

THE EFTA SURVEILLANCE AUTHORITY,

HAVING REGARD TO the Agreement on the European Economic Area (1), in particular to Articles 61 to 63 and Protocol 26 thereof,

HAVING REGARD TO the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice (2), in particular to Article 24 thereof and Article 1(2) and (3) in Part I and Articles 4(4) and 6(1) in Part II of Protocol 3 thereof,

HAVING REGARD TO the Authority's Guidelines (3) on the application and interpretation of Articles 61 and 62 of the EEA Agreement, and in particular the Chapter relating to the Sale of Land and Buildings by public authorities,

Whereas:

I.   FACTS

1.   PROCEDURE

On 3 March 2007, the Authority received a complaint from an association named Aksjonsgruppa ‘Ta vare på trivelige Bryne’ (hereinafter referred to as ‘Aksjonsgruppa’), concerning the sales of property numbers 1/152, 1/301, 1/630, 4/165 in Time municipality by the municipal authorities to two different private entities, as well as the sale of title number 2/70 (Bryne stadium which also includes title No 2/32) by Bryne fotballklubb, previously given to the club by the municipality, to a private investor (Event No 414270).

By letter dated 9 May 2007, the private investor Mr Gunnar Oma sent a complaint to the Authority concerning the sale by Time municipality of one of the abovementioned properties, i.e. number 4/165. Mr Oma claimed that the sale had taken place without prior value assessment and without an unconditional tendering procedure (Event No 421805).

By letter dated 25 May 2007 (Event No 1080978), the Authority invited the Norwegian authorities to comment on the complaints and requested additional information. In addition to the property numbers mentioned above, the Authority also asked questions concerning the purchase by Time Municipality of a property to be used for the construction of a new high school (title numbers 1/125, 2/277, 2/278 and 2/284), next to Bryne stadium. The sale had been the subject of articles in the local press which were enclosed with the complaint.

By letter dated 19 June 2007 (received by the Authority on 22 June 2007, Event No 426448), Time pensjonistparti complained about the exclusive right granted to Forum Jæren AS with respect to the development of 200 underground parking spaces at the property in the centre of the Bryne to be used for the construction of a new upper secondary school (title numbers 1/125, 2/277, 2/278 and 2/284) (4). According to the complainant, 180 of the parking spaces were to be used by Forum Jæren.

By letter dated 3 July 2007 (Event No 427879) from the Norwegian Government, received and registered by the Authority on 3 July 2007, Norway replied to the information request.

By letter of 28 July 2007, Aksjonsgruppa submitted comments to the Norwegian authorities' reply, received and registered by the Authority on 30 July 2007 (Event No 437440).

By e-mail dated 7 September 2007 (Event No 439975), Aksjonsgruppa submitted an agreement between Rogaland county municipality and Time municipality regarding the development and use of the property to be used as a new upper secondary school (title numbers 1/125, 2/277, 2/278, and 2/284) (Event No 439974), which included a clause whereby the County Municipality agreed to grant Forum Jæren the right to develop 200 parking spaces under the new secondary school, as well as the exclusive right to use 180 thereof.

By e-mails dated 19 September 2007 (Event Nos 442381, 442382 and 442383), the complainant submitted press reports regarding the land sales. Finally, by e-mail dated 2 October 2007 (Event No 445092), the complainant submitted an audit carried out by external auditors (Deloitte) of Time municipality's sales of land and buildings over the last years (Event No 445091).

By letter of 23 October 2007 (Event No 448109), the Authority invited the Norwegian authorities to comment on the third complaint in the case (from Time Pensjonistparti) and requested additional information with respect to the agreements concerning the construction of a new upper secondary school and the rights conferred on Forum Jæren in that respect.

By letters of 21 and 22 November (Event Nos 453220 and 453452), the Norwegian authorities replied to the Authority's request.

2.   DESCRIPTION OF THE TRANSACTIONS

2.1.   The sale of title numbers 1/152, 1/301 and 1/630 to Grunnsteinen AS

By a sales agreement dated 25 August 2007, Time municipality sold title numbers 1/152 (1 312 square metres), 1/301 (741 square metres) and 1/630 (1 167 square metres) in the centre of Bryne, the municipal centre of Time municipality, to the private property developer Grunnsteinen AS. Clause 1 of the contract (5) states that the properties, at the time of entering into the contract, were zoned for residential and public road/parking purposes. On title number 1/152, there were 44 municipal parking spaces belonging to Time municipality.

Under Clause 1 of the contract, Grunnsteinen AS undertakes to build underground parking spaces on title number 1/152, of which 65 are to be transferred to Time municipality upon completion (clauses 1 and 5 of the agreement). Grunnsteinen did not pay anything for the property; however, according to the municipal authorities, the obligation to build the parking spaces replaces ordinary payment for the property (6). At present, none of the titles have been transferred to Grunnsteinen AS; however, Clause 7 of the agreement foresees that the titles should be transferred upon completion of the parking spaces, at the latest by the end of 2008. Furthermore, Clause 1 foresees that the underground car park will be registered as a separate title in the land register when re-transferred to Time Municipality.

The initiative to enter into the agreement appears to have been taken by the buyers, and no public bidding round was organised prior to the sale (7). According to the municipal authorities, the payment for title No 1/152 consisted of the 44 parking spaces on the property being compensated for in the underground car park. As for title numbers 1/301 and 1/630, the municipality had commissioned a value assessment of one of the properties, title No 1/630, which the municipality claims were assessed by Eiendomsmegler 1. Only the assessment of title No 1/630, which concluded that the market value was NOK 600 per square metre, has been presented to the Authority (8). However, reservations were expressed with respect to the size of the area, to any encumbrance on the title in the property register and to zoning regulations, as none of these had been checked. The Norwegian authorities have also presented calculations made by the construction firm Skanska Norge AS, showing that the price for a parking space in an underground car park would be approximately NOK 150 000, excluding VAT and costs of buying/renting the land (9). On the basis of these estimates, the Norwegian authorities claim that the market price for title numbers 1/301 and 1/630, based on the value assessment, would be NOK 2 516 400 (10), whereas the value of the additional 21 parking spaces which Grunnsteinen will build for the municipality is estimated to 2 625 000 (11). Thus, the municipality claims that the value of these two properties is fully compensated by Grunnsteinen through the construction of 21 additional parking spaces.

2.2.   The sale of title number 4/165 to Bryne Industripark AS

On 31 August 2005, Time Municipality and the private property developer Bryne Industripark AS signed a sales agreement concerning title No 4/165 at Håland in Time (12). The title comprises 56 365 square metres of industrial land, and the sales price was set at NOK 4,7 million (or approximately NOK 83 per square metre). At the time of the signing of the agreement, the area was zoned for industrial purposes but the detailed zoning plan was not adopted due to objections from the public road administration. According to the municipal authorities, the new detailed zoning regulations are expected to be adopted in autumn 2007. The contract contains a claw-back clause (Clause 7) for Time municipality in the event that the property has not been built on or put to use 5 years after the date of taking possession.

At the time of entering into the agreement, the property consisted of undeveloped land. In the memorandum for the municipal council which approved the agreement, the municipal administration states that the conclusion of a development agreement should be a condition for selling the land. However, for the time being, no such agreement has yet been entered into, since detailed zoning regulations for the area have not yet been adopted.

The municipality confirms that no public bidding round was organised prior to the sale, which came about following an initiative from the buyer. However, it claims that the availability of industrial land in the area in question was advertised on its web page in 2003-2004. A value assessment was not carried out prior to the sale. It follows from the administrative memorandum made in relation to the sale that the price charged was based on the price at which Time municipality bought the property in 1999, to which capital costs, regulatory work and administrative costs were added. The price was, thus, established in accordance with the municipality's general principle for the sale of industrial properties, i.e. selling at cost (13).

According to the complainant, the price per square metre for this type of property should be in the range of NOK 400. This is based on a claim that an independent asset valuer assessed the property in January 2007 (14). However, no documentation has been submitted to this effect. In contrast, the municipal authorities claim that other industrial properties were sold, in the same period, for prices ranging between NOK 80 and 115 per square metre in the area, and enclose contracts concerning such properties (15). It also claims that Bryne Industripark, by verbal agreement, sold a major part of the property (50 000 square metres) to Jæren Arena for the purpose of building a new football stadium in March 2007, at a price of NOK 100 per square metre (16). No documentation of the actual price has been provided. Moreover, according to the complainants, the same investors hold financial interests both in Bryne Industripark AS and Jæren Arena, and a possible transaction therefore cannot be assumed to have taken place on normal commercial terms.

2.3.   The sale of title numbers 2/70 and 2/32 to Bryne fotballklubb and the subsequent transfer of the property to Forum Jæren AS

By agreement dated 8 August 2003, Time municipality transferred the title to Bryne stadium, title numbers 2/32 and 2/70, an area of approximately 53 000 square metres, to Bryne fotballklubb (Bryne FK) (17). From the background papers from the sale, it appears that the municipality had, in turn, bought the land from the football club for NOK 1 million in 1996. The Authority has no further information on this sale.

Bryne FK is a local football club, currently playing in the so-called ‘Adecco League’ (1st division). In addition to Bryne FK, which is registered in the company register as a non-profit organisation (18), the football club has also set up a limited company, Bryne Fotball AS. The information provided by the Norwegian authorities with respect to the organisational relationship between Bryne FK and Bryne Fotball AS is not very extensive; however, from the annual report of Bryne FK, it appears that the company was created to take care of the club's aim of promotion to the Norwegian Premier League. It also seems that Bryne FK is the main shareholder in the company and paid its debts in 2006. It appears that the sports activities, including those of the elite team aiming for promotion to the Premier League take place within Bryne FK (19).

Before the transfer of the title to the land, the football club had a ground lease agreements with the municipality for its buildings on title numbers 2/70 and 2/32, which included the stadium, a club house and a sports hall (20). Thus, the agreement of 8 August 2003 only concerns ownership of the land, not to the buildings. One building not belonging to Bryne fotballklubb appears to remain on the land, and it was foreseen that the club would take over the municipality's rights under the lease agreement with the owner of the building (21). Under Clause 2 of the agreement, title numbers 2/32 and 2/70 are transferred to Bryne FK without remuneration. It is also provided in the agreement that the municipality covers all costs connected to the transfer of the property, such as parcelling, measuring etc. The titles comprise approximately 53 000 square metres, and it is expressly provided that it shall, primarily, be used for sports purposes.

It follows from Clause 1 of the agreement that the background for the transfer of the titles was that the football club had asked for such transfer due to the fact that it needed to increase its assets in order to comply with requirements laid down by the Norwegian football association for football pitches to be used for matches in Tippeligaen (the Norwegian Premier League). From the background memos, it seems to have been essential that the property may be used as security for debts, and it is mentioned that the provision that it may only be used for sports purposes may somewhat reduce its accounting value.

The complainant claims that, in 2007, Bryne FK plans to sell the stadium to Forum Jæren for NOK 50 million. This appears to have taken place at the same time as the football club bought a property for the construction of a new stadium at Håland from Bryne Industripark AS (a sale referred to above). In reply to the Authority's request for information, the Norwegian authorities have confirmed that a letter of intent has been signed between Bryne FK and Forum Jæren concerning title No 2/70. However, the municipal authorities were unable to produce a copy thereof and the Authority therefore has had no confirmation of either the price mentioned or the possible existence of a binding agreement.

2.4.   The purchase by Time municipality of title numbers 1/125, 2/277, 2/278 and 2/284 for the purpose of building a new upper secondary school and the right to underground parking facilities granted to Forum Jæren

On 4 January 2007, Time Municipality and Forum Jæren entered into an agreement (22) whereby Time Municipality bought title numbers 1/125, 2/277, 2/278 and 2/284 in Time, in total approximately 17 990 square metres, for NOK 59,5 million (i.e. NOK 3 307 per square metre). The municipality has confirmed that no value assessment was carried out of the property prior to the conclusion of the contract. It is claimed that the price had been based on Forum Jæren's purchasing costs (23). The contract also stipulates that it is Forum Jæren's responsibility to prepare the land for construction, i.e. to demolish existing buildings and foundations, etc.

In Norway, the county municipalities are responsible for running upper secondary schools (24); however, it is common practice that the land on which the buildings are to be constructed is offered by the municipalities free of charge. As stated in Clause 2 of the agreement, the property is to be used for the construction of a new upper secondary school. On 13 August 2007, the municipality effectively entered into an agreement with Rogaland County Municipality concerning the construction of the upper secondary school (25). Clause 3 of the agreement provides that, on the condition that the county municipality will not need more parking spaces than expected at the time of conclusion of the agreement, the county municipality accepts that Forum Jæren may cover its need for parking spaces in an underground car park comprising 200 spaces in total, to be constructed under the school buildings. The county municipality will be entitled to 10 per cent of the surface of the underground car park.

However, since Forum Jæren has been granted an extension of its deadline for compliance with the zoning requirements for parking spaces (1 parking space per 100 square metres) until 31 December 2008, no agreement has yet been entered into between Forum Jæren and Rogaland County municipality governing Forum Jæren's rights on the property. According to the Norwegian authorities, neither does the agreement between the municipality and the county municipality confer a legally enforceable right on Forum Jæren. The Norwegian authorities underline, in this context, that Forum Jæren did not take part in the negotiations prior to the conclusion of the agreement. Finally, Norway also takes the view that a separate agreement lying down, in detail, the conditions for Forum Jæren's right to use the property for parking purposes would be necessary at a later point (26).

3.   COMMENTS BY NORWAY

Norway was invited to comment on the complaints in the Authority's requests for information, and did so in its replies. The replies were drafted by Time municipality and the Government did not provide additional comments.

Concerning the first of the transactions mentioned above, the Norwegian authorities claim, in essence, that the transfer of title numbers 1/152, 1/301 and 1/630 without remuneration does not amount to aid since it should be considered as an exchange of real property. In fact, the municipality's 44 parking spaces above ground will be exchanged for parking spaces in an underground car park. With respect to title No 1/301 and 1/630, it is claimed that, based on the value of these two properties in comparison with the cost estimates of parking spaces in underground car parks in similar projects, the value of the increase in the number of parking spaces (21) which the municipality will get as a result of the deal more than covers the value of the properties transferred. Against this background, the Norwegian authorities take the view that no aid is granted, irrespective of the fact that title No 1/152 was not valued. It is also claimed that, in the event that aid is present, it would be de minimis aid.

As for the sale of title No 4/165 to Bryne Industripark AS, Time municipality claims that, irrespective of the fact that no value assessment was made and that the property in question appears to have a very attractive location, the price per square metre corresponds to the market price. This is due to specific difficulties pertaining to the property: there were, inter alia, objections to the zoning plan, which, therefore, had not yet been adopted, and the property was difficult to exploit efficiently due to the construction prohibition in proximity to the railway. Furthermore, it is claimed that equivalent industrial properties in the municipality were recently sold at prices which, per square metre, roughly correspond to the price paid by Bryne Industripark.

With respect to the sale of Bryne stadium to Bryne FK, the Norwegian authorities argue that the buyer, Bryne FK, is not an undertaking within the meaning of the EEA Agreement, but a non-profit organisation and a sports club. Consequently, the Norwegian authorities take the view that Article 61 EEA does not apply to the transaction regardless of whether or not it confers an economic advantage on the buyer.

With respect to the titles which are to be used for the construction of an upper secondary school and Forum Jæren's right to build parking spaces under the school buildings, Time municipality claims that no legally binding agreement has yet been entered into with Forum Jæren. It was always the municipality's intention that such a right could only be granted on market conditions, but it would now be up to the County Municipality to negotiate an agreement with Forum Jæren governing the conditions for the construction of parking spaces.

II.   ASSESSMENT

1.   THE PRESENCE OF STATE AID

Article 61(1) of the EEA Agreement reads as follows:

‘Save as otherwise provided in this Agreement, any aid granted by EC Member States, EFTA States or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Contracting Parties, be incompatible with the functioning of this Agreement’.

It follows from this provision that, for State aid within the meaning of the EEA to be present, the following conditions must be met:

| — | the aid must be granted through State resources, |
| --- | --- |

—

the aid must be granted through State resources,

State resources

| — | the aid must favour certain undertakings or the production of certain goods, i.e. the measure must confer an economic advantage upon the recipient(s), which must be selective, |
| --- | --- |

—

the aid must favour certain undertakings or the production of certain goods, i.e. the measure must confer an economic advantage upon the recipient(s), which must be selective,

economic advantage

selective

| — | the beneficiary must be an undertaking within the meaning of the EEA Agreement, |
| --- | --- |

—

the beneficiary must be an undertaking within the meaning of the EEA Agreement,

undertaking

| — | the aid must be capable of distorting competition and affect trade between contracting parties. |
| --- | --- |

—

the aid must be capable of distorting competition and affect trade between contracting parties.

distorting competition

affect trade

Whether these conditions are met must be assessed individually with respect to each of the transactions described above.

1.1.   The sale of title numbers 1/152, 1/301 and 1/630 to Grunnsteinen AS

The term ‘State resources’ covers all aid granted from public sources, including municipalities. Aid granted by Time municipality would thus fall within the definition. If public land is sold below market value, State resources are present (27).

27

In the case at hand, the buyer did not pay any money for the properties. Thus, prima facie, the transaction would seem to involve aid, and it would be for the Norwegian authorities to rebut that presumption.

prima facie

The Norwegian authorities argue that the buyer did pay a ‘price’ for the properties by taking on the obligation to build an underground car park in which the municipality would be entitled to 65 parking spaces. Thus, what remains to be considered is whether it can established, either in application of the procedures described in the State aid guidelines or by other methods, that the transaction therefore took place on market terms.

The Norwegian authorities have confirmed that the sale of the properties was not announced publicly, but came about following an initiative from Grunnsteinen. Thus, no unconditional bidding procedure (which could, theoretically, have led to a very low, or even no value being paid, given the obligation to provide parking spaces) within the meaning of the Guidelines took place.

Concerning sales without an unconditional bidding procedure, the Guidelines require, for the presence of State aid to be excluded on this basis, that ‘an independent evaluation should be carried out by one or more independent asset valuers prior to the sales negotiations in order to establish the market value on the basis of generally accepted market indicators and valuation standards. The market price thus established is the minimum purchase price that can be agreed without granting State aid’.

an independent evaluation should be carried out by one or more independent asset valuers prior to the sales negotiations in order to establish the market value on the basis of generally accepted market indicators and valuation standards. The market price thus established is the minimum purchase price that can be agreed without granting State aid

In the case at hand, since the payment consists of the construction of 65 underground parking spaces for public use, in order for State aid to be excluded on the basis of the guidelines, a value assessment of the properties would have to be undertaken, and the market price of the parking spaces would have to be established in a reliable manner.

As for the properties sold, it is clear that at least title number 1/152 was not assessed at all. The Norwegian authorities claim that both title numbers 1/301 and 1/630 were valued; however, only the assessment of title number 1/630 has been forwarded to the Authority on request. Thus, the procedure laid down for establishing the market price through independent value assessment cannot, under any circumstances, be considered to have been complied with. Moreover, since the properties were transferred en bloc, a value assessment should cover all three properties taken together. With respect to the title(s) which w(as)(ere) actually valued, the Authority has not been assured that it took place in accordance with the guidelines, which require that the market value should be established on the basis of generally accepted indicators and valuation standards. In the valuation by Eiendomsmegler 1, it is merely stated that the valuation is ‘carried out in accordance with our best judgement and conviction, on the basis of a visit of the property and information provided by the seller’. However, the valuation does neither set out the characteristics of the property which were decisive for the conclusion, nor the method applied, for example one of the methods recommended by the Norwegian Valuers And Surveyours Association (‘Norges Takseringsforbund (NTF)’) for commercial property (28). In the view of the Authority, the valuation carried out by Eiendomsmegler 1 does not give sufficient information for the Authority to ascertain that it was carried out in accordance with generally accepted indicators and valuation standards.

en bloc

carried out in accordance with our best judgement and conviction, on the basis of a visit of the property and information provided by the seller

Norges Takseringsforbund (NTF)

28

Concerning the value of the parking spaces which the municipality will receive in remuneration for the properties, the Norwegian authorities have enclosed estimates made by the construction firm Skanska Norge AS, arriving at NOK 150 000 per parking space. The Authority also notes that the estimates are subject to the reservation that building costs will vary, depending on a range of factors such as size, location, proximity to roads, lifts, fire security, etc., and also that ‘price will further depend on working methods, timing and market situation’. Although the guidelines on expert evaluation are not directly applicable to the valuation of the future car park, the Authority is not convinced that the evaluation by Skanska was carried out in a reliable manner. In particular, the calculations presented seem to have be carried out exclusively on the basis of experience from other projects and, thus, do not seem to take sufficient account of the characteristics of the specific property in question in order to be suitable for establishing the market price.

price will further depend on working methods, timing and market situation

Against this background, the presence of aid cannot be excluded on the basis of, or by analogy to, the guidelines.

The Norwegian authorities also seem to argue that the presence of aid can be excluded on other grounds. In particular, they claim that the transaction is in fact an exchange of property, and that the fact that title No 1/152 was not valued is therefore irrelevant. The argument seems to be based on the idea that, since the 44 public parking spaces currently occupying title number 1/152 will be replaced by underground parking spaces, the municipality keeps what it had before entering into the contract. Concerning exploitation of title No 1/152 above ground, this area will now be regulated as a green area and thus will have no independent market value.

underground

It must be assessed whether these arguments are capable of excluding the presence of State aid. In that regard, what remains to be considered is the market value of the property transferred at the time of the conclusion of the contract (29). Thus, the subjective value of the land for the municipality when used as a car park does not establish the market price as long as the land could also be exploited for different purposes. At the time of the contract, this seems to have been the case, and the possibility for alternative (and more profitable) uses must, therefore, be the basis for the calculation of the market price. The Authority takes the view that, even if parts of title number 1/152 might, more than two years later, be zoned as a green area, what must be assessed is what use of the properties (if sold together) potential buyers could expect at the time of the transaction.

market value

29

Secondly, this argument seems to presuppose that the valuations of the two other titles and the parking spaces are acceptable, so that the value of the parking spaces equals or exceeds the value of the two additional titles. As shown above, the Authority has not found the calculations presented to it convincing.

Against this background, the Authority has serious doubts that the ‘price’ paid for the property reflected its market value.

Firstly, the measures must confer on Grunnsteinen AS advantages that relieve it of a financial burden that it would normally have to cover from its budget (in this case, any additional price payable for the land in question). Secondly, the measure must be selective in that it favours ‘certain undertakings or the production of certain goods’.

certain undertakings or the production of certain goods

If, and to the extent that, the price paid for the properties does not reflect their market value, Grunnsteinen obtains an advantage in the form of a lower purchase price which it would normally have to pay out of its own budget. Equally, the measure would be selective since it only benefits the buyer.

Under settled case law, the mere fact that an aid strengthens a firm's position compared with that of other firms competing in intra-EEA trade, is enough to conclude that the measure is likely to affect trade between the contracting parties and distort competition between undertakings established in other EEA States (30). If, and to the extent that, the transaction confers an economic advantage on Grunnsteinen, its position is strengthened in comparison with that of its competitors. Since the property in question appears to be centrally located commercial land which is, consequently, attractive, it might be of interest not only to Norwegian firms, to the effect that firms established in other EEA States may have been affected by the transaction. Moreover, the Norwegian buyers might be professional property investors who are active in Norway and other EEA States alike. Thus, it appears that the transaction may threaten to distort competition and affect trade within the EEA.

30

The Authority considers it possible that the economic advantage conferred on Grunnsteinen through the transaction could be de minimis (i.e. EUR 100 000 over a three-year period at the material time (31)) and as such not distort competition and affect trade within the EEA. However, in the absence of reliable value assessments, the Authority cannot establish with certainty that such is the case.

de minimis

31

1.2.   The sale of title number 4/165 to Bryne Industripark AS

As described above, the land in question consists of more than 56 000 square metres of industrial land outside Bryne. No value assessment was carried out prior to the sale. The municipality states that the land was offered on its web page for some time, but it is unable to retrieve the announcement from its system, and the Authority therefore cannot verify its content. In any event, it is doubtful that a notice on a web page would qualify as a sufficiently well publicised offer within the meaning of the Guidelines. Against this background, the procedures described in the Authority's State aid Guidelines on the sale of land and buildings do not seem to have been followed and the presumption that aid is not present therefore does not apply.

The municipality has explained that property was sold at cost, i.e. at a price calculated by adding regulatory and administrative costs, capital costs and fees to the price for which the property was bought in 1999. As a preliminary point, the Authority notes that sales of public land at cost cannot exclude the presence of State aid, as this price calculation method does not take sufficient account of all the various factors which may influence a property's market value, in particular the supply and demand on the market at the time of the sale (32). Moreover, in this case, there seems to have been no adjustment for inflation.

at cost

32

In the case at hand, sales at cost was the general policy of the municipality at the time. However, by decision of 18 October 2006 (33), the municipality decided that land at Bryne, including Håland, should for the future be sold at market price. In the background memo for the decision, the municipality stated that industrial land at Bryne had become scarce and that land at Håland would be ‘cheap if we sell at cost’. The memo also states that one of the reasons for the transition to the market price principle was to ensure that ‘[i]ndustries which require large areas but are not labour intensive will find the land too expensive and establish themselves elsewhere’. Thus, it seems to have been expected that the market price would be higher than the cost price which was applied in the sale to Bryne Industripark.

33

cheap if we sell at cost

[i]ndustries which require large areas but are not labour intensive will find the land too expensive and establish themselves elsewhere

The Norwegian authorities have argued that the price is comparable to the sales price of similar land sold in the area in the same period (34). The Authority accepts that such comparisons might give an indication of the appropriate price for the land (35). However, the Authority has doubts as to the relevance of the prices presented as it has not been presented with facts which demonstrate that the land plots in question are sufficiently comparable to the land sold to Bryne Industripark. All areas in question are, inter alia, considerably smaller than title No 4/165 and the Norwegian authorities have not provided details of their location showing that they are as attractive as title No 4/165. Moreover, all the properties referred to are stated to be unregulated in the sales contracts. By contrast, at the time of the sale, a zoning plan for the area sold to Bryne Industripark had been adopted on 5 June 2004. The Norwegian authorities state that objections from the Public Roads Administration seemed to make adjustments necessary. It is unclear to the Authority whether these objections were received before or after the sale to Bryne Industripark. In any event, the agreement refers to the detailed zoning plan adopted in 2004 and the property, therefore, does not seem to have been sold as unregulated. The relevance of comparing the land to areas which were unregulated can thus be questioned (36).

34

35

inter alia

36

Against this background, the Authority has serious doubts that the cost price at which title No 4/165 in Time was sold corresponded to the property's market value at the time of the sale.

If, and to the extent that, the price paid for the title No 4/165 does not reflect its market value, Bryne Industripark obtains an advantage in the form of a lower purchase price, thus avoiding costs which it would normally have to pay out of its own budget. Equally, the measure would be selective since it only benefits the buyer.

As set out above, the mere fact that an aid strengthens a firm's position compared with that of other firms, which are competitors in EEA trade, is enough to conclude that competition is distorted and intra-EEA trade is affected. If, and to the extent that, Bryne Industripark bought the land below market price, its position is strengthened compared with that of its competitors. In the case at hand, the property in question appears to be industrial land of potential interest to a variety of activities. Accordingly, it may well be of interest not only to Norwegian firms. Moreover, the Norwegian buyers might be professional property investors who are active both in Norway and other EEA States.

Thus, the transaction may threaten to distort competition and affect trade within the EEA.

1.3.   The sale of title numbers 2/70 and 2/32 to Bryne FK

As described above, the stadium was transferred to Bryne football club in 2003 for NOK 0. At the time, Bryne FK had two lease agreements with the municipality on title numbers 2/70 and 2/32, concerning, respectively, a grandstand for football and a clubhouse, and a sports hall (37). Furthermore, a company called Stadion Trim & Bowling AS had a lease contract for a sports building for 99 years from 1997. It also appears that Bryne Friidrettsklubb (Bryne Athletics) had certain rights of use to the stadium prior to the transfer of the ground to Bryne FK, and that these rights had to be waived before the transfer could be implemented.

37

The existence of long term lease agreements and special rights of use may lead to the value of the land being reduced if sold to a third party. However, it is implausible that the property would have no market value at all, inter alia because such special rights might be waived at a later stage. This would seem to be demonstrated by recent events: In fact, the sports club has now decided to move its stadium and, thus, to sell the property in question. Norwegian authorities have confirmed that no value assessment was carried out of the property prior to the sale.

inter alia

Against this background, the Authority has strong doubts that the property was transferred at market price and, thus, that no State resources were involved.

If the presence of State resources were to be proven, the transaction must be held to confer an advantage on Bryne FK. The measure would, thus, be selective within the meaning of Article 61(1) EEA.

The Norwegian authorities have claimed that Bryne FK does not constitute an undertaking within the meaning of the EEA Agreement because it is a sports club and a private consumer-oriented organisation with no profit-making purposes. According to the Norwegian Government, the club is not active in commercial activities. To substantiate its position, the Norwegian authorities have enclosed the club's annual report, focussing on its activities for adolescents and children.

As a starting point, the Authority notes that the concept of an undertaking encompasses every entity engaged in an economic activity (38). Any activity consisting in offering goods and services on a given market is an economic activity (39). Therefore, it is not decisive that the football club is not organised as a limited company or that it is registered as a non-profit organisation in the company register. The Court of Justice of the European Communities has held that where a sporting activity takes the form of gainful employment or the provision of services for remuneration, which is true of the activities of semi-professional or professional sportsmen, it constitutes an economic activity for the purposes of Community law. Therefore, it is subject, inter alia, to the rules on competition (40).

38

39

inter alia

40

Bryne FK currently plays in the so-called Adecco league, i.e. the 1st division in Norwegian football (i.e. the division below the Premier League). From Bryne FK's homepage, it appears that the club is, inter alia, active in selling and buying professional players (41), providing entertainment in the form of football matches and in offering advertising space in return for payment (42). In light of the practice of the European Commission, such activities would seem to qualify as the provision of services on a market and therefore to be economic in nature (43). The club's annual accounts, forwarded by the Norwegian authorities, show that it had an annual turnover in the range of NOK 28 million in 2006, of which approximately 11,6 million was generated through sponsorship. Other major sources of revenue include income from matches, non-sports activities, rent income/public contributions and miscellaneous revenues. In addition, about NOK 400 000 stemmed from membership fees. In the view of the Authority, all these items, with the possible exception of a part of the membership fees, seem to have been generated through economic activity.

Adecco

inter alia

41

42

43

In light of the above, the Authority takes the preliminary view that Bryne FK must be held to be an undertaking for the purposes of the State aid rules of the EEA Agreement.

Provided that it is established that Bryne FK got the property without paying the market price, it receives an advantage which strengthens its position compared with that of its competitors, thus threatening to distort competition. As demonstrated above, Bryne FK's commercial activities appear to include, inter alia, the selling and buying of players from clubs in other EEA States, the offering of advertising space and the provision of entertainment in the form of football matches. In doing so, the club competes with undertakings established in other EEA States. Insofar as the measure is deemed to distort competition, it will, therefore, also be capable of affecting trade between the Contracting Parties.

inter alia

1.4.   The purchase by Time municipality of title numbers 1/125, 2/277, 2/278 and 2/284 for the purpose of building a new upper secondary school and the right to underground parking facilities granted to Forum Jæren

With respect to the right to build parking spaces under title numbers 1/125, 2/277, 2/278 and 2/284, allegedly granted to Forum Jæren by Time Municipality, it appears to the Authority that Forum Jæren has not yet obtained a legally enforceable right of use of the property. As long as the contractual conditions governing Forum Jæren's future right of use, and thus the commercial balance of the contract, have not yet been determined, it is not possible to assess whether a potential future agreement would involve the granting of State aid. Thus, even if the possible future granting of such a right were to constitute State aid, the aid has not yet been put into effect. As the Authority only has the power to assess aid which has already been put into effect (44) or plans to grant aid notified to it by the national authorities (45), it cannot, at this stage, take a decision on the possible aid involved in granting Forum Jæren the right to construct parking spaces under the foreseen school buildings. Thus, the Authority finds that no State aid has been granted at this stage.

44

45

This finding does not preclude the Authority from adopting a decision if, at a later stage, a measure possibly involving aid should be put into effect or notified to the Authority pursuant to Article 1 of Section I of Protocol 3 to the Surveillance and Court Agreement.

2.   PROCEDURAL REQUIREMENTS

Pursuant to Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement, ‘the EFTA Surveillance Authority shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid (...). The State concerned shall not put its proposed measures into effect until the procedure has resulted in a final decision’.

the EFTA Surveillance Authority shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid (...). The State concerned shall not put its proposed measures into effect until the procedure has resulted in a final decision

Title number 4/165 and title numbers 2/70 and 2/32 have been sold under legally binding sales contracts and the titles have been transferred in the land register. The measures must therefore be deemed to have been put into effect.

As for the sale of title numbers 1/152, 1/301 and 1/630 to Grunnsteinen, the titles have not yet been transferred in the land register. However, a legally binding contract has been entered into, from which the municipal authorities cannot withdraw without incurring financial consequences. Thus, no further formal measures are required for the buyer to receive the economic benefit of the transaction, and it must therefore be deemed to have been put into effect.

These transactions have not been notified to the Authority. To the extent that these transactions involve State aid, it can be concluded that the Norwegian Government has not respected its obligations pursuant to Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement.

3.   COMPATIBILITY OF THE AID

The Norwegian authorities have argued that the transactions do not contain aid, and have not put forward arguments concerning compatibility. However, after assessing the likelihood that State aid may be involved in the transactions described above, it has to be considered whether any aid involved in the transactions could be compatible with the EEA Agreement under Article 61(3)(a)-(c) EEA.

In the case of the sale of title numbers 1/152, 1/301 and 1/630 to Grunnsteinen, the information available to the Authority does not seem to indicate that any aid was granted to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment, to promote a project of common European interest or to facilitate the development of certain economic activities. Moreover, any aid granted to the sports club would not seem to promote cultural development. Against that background, Article 61(3)(a)-(c) appears to be inapplicable.

For the same reasons, any possible aid involved in the sale of title number 4/165 to Bryne Industripark and the sale of title numbers 2/70 and 2/32 to Bryne FK does not seem to be compatible with the functioning of the EEA Agreement by virtue of Article 61(3)(a)-(c).

4.   CONCLUSION

Based on the information available to the Authority, including the information submitted by the Norwegian Government, the Authority cannot exclude that the sales of title numbers 1/152, 1/301, 1/630 (to Grunnsteinen AS), 4/165 (to Bryne Industripark AS), 2/70, 2/32 (to Bryne FK) constitute aid within the meaning of Article 61(1) of the EEA Agreement. Furthermore, the Authority has doubts, to the extent that State aid is involved, that they can be regarded as complying with Article 61(3)(c) of the EEA Agreement. Consequently, the Authority has doubts that the transactions referred to above do not constitute State aid or are compatible with the functioning of the EEA Agreement.

Consequently, and in accordance with Article 4(4) in Part II of Protocol 3 to the Surveillance and Court Agreement, the Authority is obliged to open the procedure provided for in Article 1(2) in Part I of Protocol 3 of the Surveillance and Court Agreement. The decision to open proceedings is without prejudice to the final decision of the Authority, which may conclude that the measures in question do not constitute State aid or are compatible with the functioning of the EEA Agreement.

The Authority also draws the attention of the Norwegian authorities to the fact that Article 1(3) in Part I of Protocol 3 to the Surveillance and Court Agreement constitutes a standstill obligation and that Article 14 in Part III of that Protocol provides that, in the event of a negative decision, all unlawful aid may be recovered from the beneficiary, save in exceptional circumstances. At this stage, the Authority has not been presented with any facts indicating the existence of exceptional circumstances on the basis of which the beneficiary may legitimately have assumed the aid to be lawful.

In light of the foregoing considerations, the Authority, acting under the procedure laid down in Article 1(2) in Part I of Protocol 3 to the Surveillance and Court Agreement, requests Norway to submit its comments and to provide all such information as may help to assess the transactions described above, within one month of the date of receipt of this decision. It requests your authorities to forward a copy of this letter to the potential aid recipient of the aid immediately.

one month

In the light of the foregoing consideration, the Authority requires, within one month of receipt of this decision, to provide all documents, information and data needed for assessment of the compatibility of the property transactions engaged in by the Municipality of Time and, in particular, value assessments stating the value of title numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 at the time of the sale, carried out by an independent asset valuer in accordance with the procedure described in the Authority's Guidelines relating to Sales of Land and Buildings by Public Authorities,

HAS ADOPTED THIS DECISION:

| 1. | The Authority has decided to open the formal investigation procedure provided for in Article 1 (2) in Part I of Protocol 3 to the Surveillance and Court Agreement against Norway in relation to the sale by the Municipality of Time of the properties registered under title numbers 1/152, 1/301, 1/630 (to Grunnsteinen AS); title number 4/165 (to Bryne Industripark AS) and title numbers 2/70 and 2/32 (to Bryne FK) in Time. |
| --- | --- |

1.

The Authority has decided to open the formal investigation procedure provided for in Article 1 (2) in Part I of Protocol 3 to the Surveillance and Court Agreement against Norway in relation to the sale by the Municipality of Time of the properties registered under title numbers 1/152, 1/301, 1/630 (to Grunnsteinen AS); title number 4/165 (to Bryne Industripark AS) and title numbers 2/70 and 2/32 (to Bryne FK) in Time.

| 2. | At present, the transactions relating to title numbers 1/125, 2/277, 2/278, 2/284 in Time do not involve the granting of State aid, within the meaning of Article 61(1) of the EEA Agreement, to Forum Jæren AS. |
| --- | --- |

2.

At present, the transactions relating to title numbers 1/125, 2/277, 2/278, 2/284 in Time do not involve the granting of State aid, within the meaning of Article 61(1) of the EEA Agreement, to Forum Jæren AS.

| 3. | The Norwegian Government is requested, pursuant to Article 6(1) in Part II of Protocol 3 to the Surveillance and Court Agreement, to submit its comments on the opening of the formal investigation procedure within one month from the notification of this decision. |
| --- | --- |

3.

The Norwegian Government is requested, pursuant to Article 6(1) in Part II of Protocol 3 to the Surveillance and Court Agreement, to submit its comments on the opening of the formal investigation procedure within one month from the notification of this decision.

| 4. | The Norwegian Government is required to provide within one month from notification of this decision all documents, information and data needed for assessment of the compatibility of the aid measure, in particular value assessments stating the value of title numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 at the time of the sale, carried out by an independent asset valuer in accordance with the procedure described in the Authority's Guidelines relating to Sales of Land and Buildings by Public Authorities. |
| --- | --- |

4.

The Norwegian Government is required to provide within one month from notification of this decision all documents, information and data needed for assessment of the compatibility of the aid measure, in particular value assessments stating the value of title numbers 1/152, 1/301, 1/630, 4/165, 2/70 and 2/32 at the time of the sale, carried out by an independent asset valuer in accordance with the procedure described in the Authority's Guidelines relating to Sales of Land and Buildings by Public Authorities.

| 5. | The Norwegian Government is requested to forward a copy of this Decision to the potential recipients of aid immediately. |
| --- | --- |

5.

The Norwegian Government is requested to forward a copy of this Decision to the potential recipients of aid immediately.

| 6. | This Decision is addressed to the Kingdom of Norway. |
| --- | --- |

6.

This Decision is addressed to the Kingdom of Norway.

Done at Brussels, 19 December 2007.

For the EFTA Surveillance Authority

Per SANDERUD

President

Kristján Andri STEFÁNSSON

College Member

---

(1)  Hereinafter referred to as the EEA Agreement.

1

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

2

(3)  Procedural and Substantive Rules in the Field of State Aid — Guidelines on the application and interpretation of Articles 61 and 62 of the EEA Agreement and Article 1 of Protocol 3 to the Surveillance and Court Agreement, adopted and issued by the EFTA Surveillance Authority on 19 January 1994, published in OJ L 231, 3.9.1994, EEA Supplement No 32, 3 September 1994, last amended by the Authority's Decision No 154/07/COL, hereinafter referred to as the State Aid Guidelines.

3

(4)  The property numbers referred to in the complaint are 1/125, 2/25, 2/274, 2/277, 2/278 and 2/288. Attempts have been made to check this with the complainant, but a clear answer could not be obtained (e-mails from the case handler of 19 October 2007 and Reply from Time Pensjonistparti of 22 October 2007, Event Nos 447785, 447999 and 448000). Based on the description of the properties in the complaint, the Authority, nevertheless, takes the view that the property referred to must be the property on which a new upper secondary school is to be constructed, i.e. title numbers 1/125, 2/277, 2/278 and 2/284.

4

(5)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 1).

5

(6)  Norway's reply to the Authority's first request for information (Event No 427879), Question 1(e).

6

(7)  Norway's reply to the Authority's first request for information (Event No 427879), reply to question 1(e).

7

(8)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 2). In Norway's reply, it is claimed that the value assessment concerned title numbers 1/301 and 1/630. However, this is not reflected in the actual assessment, neither does the number of square metres stated therein indicate that both properties have been taken into account.

8

and

(9)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 5).

9

(10)  This appears to be based on a value of NOK 600 per square metre plus the value of a building on title No 1/301. The Authority has not been presented with a valuation of the building.

10

(11)  This is based on the Municipality's original cost estimate of NOK 125 000, set out in the background papers for the deliberations in the municipal council (Event No 413558, pp. 16-17). The estimate by Skanska appears to have been obtained at a later stage.

11

(12)  Event No 413558, p. 19 et seq.

12

et seq

(13)  Event No 413558, pp. 16-17.

13

(14)  See Event No 413558 (original complaint), repeated in Aksjonsgruppa's comments to Norway's reply, Event No 477440.

14

(15)  Norway's reply to the Authority's first request for information (Event No 427879, Annexes 13-17).

15

(16)  See Article from the local newspaper Jærbladet of 28 March 2007, referring to this price.

16

(17)  Event No 413558, p. 29 and Norway's reply to the Authority's first request for information (Event No 427879, Annex 29).

17

(18)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 21).

18

(19)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 22).

19

(20)  The ground lease agreements provided by Norway, Annexes 18 and 19 to Norway's reply to the Authority's first request for information (Event No 427879).

20

(21)  See Annex 24 to Norway's reply to the Authority's first request for information (Event No 427879).

21

(22)  Norway's reply to the Authority's first request for information (Event No 427879, Annex 26).

22

(23)  Norway's reply to the Authority's first request for information (Event No 427879).

23

(24)  See the Act relating to Education of 17 July 1998, No 61, Section 13-3.

24

(25)  Agreement between Time Municipality and Rogaland County Municipality relating to the construction of a new upper secondary school, Event No 439974.

25

(26)  Norway's reply to the Authority's second request for information (Event Nos 453220 and 453452).

26

(27)  Case T-274/01, Valmont Nederland BV v Commission, [2004] ECR II-3145, paragraphs 44-45.

27

Valmont Nederland BV

Commission

(28)  The Authority has previously held that these standards fulfil the requirements of the Guidelines, ref. Decision No 170/05/COL on the sale of the University Library Building and Part of Adjacent Property in Oslo.

28

(29)  See Case T-366/00, Scott SA v Commission, judgment of 29 March 2007 (not yet reported), paragraph 106.

29

Scott SA

Commission

(30)  See Case 730/79, Philip Morris Holland BV v Commission, [1980] ECR p. 2671, paragraphs 11-12 and Joined Cases E-5/04, E-6/04 and E-7/04, FESIL, Finnfjord, PIL and Others, and the Kingdom of Norway v the Authority, paragraph 94.

30

Philip Morris Holland BV

Commission

FESIL, Finnfjord, PIL and Others, and the Kingdom of Norway

the Authority,

(31)  See Article 2(2) of Commission Regulation (EC) No 69/2001, incorporated into the EEA Agreement by Joint Committee Decision No 88/2002 (OJ L 266, 3.10.2002, p. 56 and EEA Supplement No 49, 3 October 2002, p. 42), e.i.f. 1 February 2003.

31

(32)  Case T-366/00, Scott (cited above), paragraph 106.

32

Scott

(33)  Decision No KS-075/06, forwarded by the complainant (Annex 3 to Event No 437440).

33

(34)  Land sale agreements attached as Annexes 13-17 to Norway's reply to the Authority's first request for information, (Event No 427879).

34

(35)  Case T-366/00, Scott (cited above), paragraph 116.

35

Scott

(36)  It may also be noted that it follows from the sales agreements that it was considered to be highly likely that the areas were of archaeological interest and that the ground would, therefore, have to be explored before any development could take place, see Norway's reply to the Authority's first request for information (Event No 427879, Annexes 13, 14 and 15. This does not seem to be the case with respect to the title No 4/165, see Norway's reply to the Authority's first request for information (Event No 427879, Annex 8).

36

(37)  See Norway's reply to the Authority's first request for information (Event No 427879, Annexes 18 and 19).

37

(38)  Case C-41/90, Höfner and Elser [1991] ECR I-1979, paragraph 21.

38

Höfner and Elser

(39)  Case 218/00, Cisal [2002] ECR I-691, paragraph 23.

39

Cisal

(40)  Case Case C-519/04 P, Meca-Medina and Majcen vs Commission, [2006] ECR I-6991, paragraphs 22, 23 and 30.

40

Meca-Medina and Majcen

Commission

(41)  For example, the news archive of the club features headlines like ‘Striker on trial’ (18 March 2004), ‘Frenchman for trial’ (30 March 2004), ‘Serbian trial player at Bryne’ (2 August 2007) and ‘Icelandic U21 player ready for Bryne’ (31 August 2007):

41

http://www.brynefk.no/Brynefk/index.nsf/DESIGNARKIV?openform

(42)  For example, in a news item of 13 April 2007, the club states that ‘For the first time Bryne FK has received more than 12 million in mere sponsorship money. The capacity [for advertisements] at Bryne stadium is exhausted and in order to exceed the 12 million threshold the club has invested in advertising rolls. The VIP stand has also been nearly sold out’.

42

For the first time Bryne FK has received more than 12 million in mere sponsorship money. The capacity [for advertisements] at Bryne stadium is exhausted and in order to exceed the 12 million threshold the club has invested in advertising rolls. The VIP stand has also been nearly sold out

See: http://www.brynefk.no/brynefk/index.nsf/DESIGNUNIK/SFUS-76RJ37?OpenDocument

(43)  See paragraph 17 of the Commission's opening Decision in Case C-49/03 (NN 51/03), Sale of land to AZ and AZ Vastgoed BV (OJ C 266, 5.11.2003, p. 8).

43

Sale of land to AZ and AZ Vastgoed BV

(44)  Unlawful aid or existing aid, under, respectively, Section III and V of Part II of Protocol 3 to the Surveillance and Court Agreement.

44

(45)  Section II of Protocol 3 to the Surveillance and Court Agreement.

45

---

V Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMMON COMMERCIAL POLICY

Commission

| 5.6.2008 | EN | Official Journal of the European Union | C 138/42 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/42

---

Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and Thailand and a partial interim review of the anti-dumping measures applicable to imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and those consigned from Taiwan, whether declared as originating in Taiwan or not

(2008/C 138/12)

Following the publication of a notice of impending expiry (1) of the anti-dumping measures in force on imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and Thailand, (‘countries concerned’), the Commission has received a request for reviews pursuant to Article 11(2) and (3) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (‘the basic Regulation’) (2).

1.   Request for review

The request was lodged on 5 March 2008 by the Defence Committee of the Steel Butt-Welding Fittings Industry of the European Union (‘the applicant’) on behalf of producers representing a major proportion, in this case more than 25 % of the total Community production of certain tube or pipe fittings, of iron or steel.

2.   Product

The product under review is tube or pipe fittings (other than cast fittings, flanges and threaded fittings) of iron or steel (not including stainless steel), with a greatest external diameter not exceeding 609,6 mm, of a kind used for butt-welding or other purposes, originating in the People's Republic of China and Thailand (‘the product concerned’), currently classifiable within CN codes ex 7307 93 11, ex 7307 93 19, ex 7307 99 30 and ex 7307 99 90. These CN codes are given only for information.

3.   Existing measures

The measures currently in force are definitive anti-dumping duties imposed by Council Regulation (EC) No 964/2003 (3) on imports of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China and Thailand, and those consigned from Taiwan, whether declared as originating in Taiwan or not as last amended by Council Regulation (EC) No 1496/2004 (4).

4.   Grounds for the reviews

4.1.   Grounds for the expiry review

The request is based on the grounds that the expiry of measures would be likely to result in continuation or recurrence of dumping and injury to the Community industry.

In view of the provisions of Article 2(7) of the basic Regulation, normal value was established for the People's Republic of China on the basis of the price in an appropriate market economy country, which is mentioned in point 5.1(d). The likelihood of continuation of dumping is based on a comparison of normal value, established as set out in the preceding sentence, with the export prices of the product concerned when sold for export to the Community.

On this basis, the dumping margin calculated is significant.

Furthermore, the applicant points out that during the period of imposition of measures, the exporters/producers of the product concerned from the People's Republic of China tried to undermine the existing measures by circumvention practices which were counteracted by Council Regulations (EC) No 763/2000 (5), (EC) No 2052/2004 (6), (EC) No 2053/2004 (6) and (EC) No 655/2006 (7).

The allegation of likelihood of continuation of dumping with respect to Thailand is based on a comparison of a constructed normal value, established on the basis of cost of production, with the export prices of the product concerned when sold for export to the Community.

The applicant has provided evidence that imports of the product concerned from the People's Republic of China and Thailand have continued to enter in significant quantities, and that such quantities would be likely to remain at their current levels, if not increase inter alia due to the measures in force on imports of the product originating in the countries concerned in traditional markets other than the EU (i.e. the USA) and the existence of unused capacity in the countries concerned.

The applicant allege that the current improved situation with regard to injury is mainly due to the existence of measures and that any continuation or recurrence of substantial imports at dumped prices from the countries concerned would likely lead to a recurrence of injury of the Community industry should measures be allowed to lapse.

4.2.   Grounds for the interim review

The applicant has provided information that, with regard to imports of the product concerned from the People's Republic of China, the measure is no longer sufficient to counteract the injurious dumping, in particular as far as the extension of the measure to imports consigned from Taiwan is concerned. The applicant has provided prima facie evidence that the exemption of imports produced by Chup Hsin Enterprise Co. Ltd, Kaohsiung (Taiwan) and Niang Hong Pipe Fittings Co. Ltd, Kaohsiung (Taiwan) from the extended measure is no longer justified as these companies appear to be engaged in circumvention practices such as transshipment of certain tube or pipe fittings, of iron or steel, originating in the People's Republic of China via Taiwan.

5.   Procedure

Having determined, after consulting the Advisory Committee, that sufficient evidence exists to justify the initiation of an expiry review and a partial interim review, limited to the exemption of certain tube or pipe fittings, of iron or steel produced by Chup Hsin Enterprise Co. Ltd, Kaohsiung (Taiwan) and Niang Hong Pipe Fittings Co. Ltd, Kaohsiung (Taiwan) from the extension of the anti-dumping measures imposed on imports originating in the People's Republic of China to imports consigned from Taiwan, the Commission hereby initiates reviews in accordance with Article 11(2) and (3) of the basic Regulation.

5.1.   Procedure for the expiry and interim reviews

The investigation will determine whether the expiry of the measures would be likely, or unlikely, to lead to a continuation or recurrence of dumping and injury. The interim review will determine whether, with regard to imports of the product concerned consigned from Taiwan, the exemption of certain tube or pipe fittings, of iron or steel produced by Chup Hsin Enterprise Co. Ltd, Kaohsiung (Taiwan) and Niang Hong Pipe Fittings Co. Ltd, Kaohsiung (Taiwan) from the extension of the anti-dumping measures imposed on imports originating in the People's Republic of China to imports consigned from Taiwan is still justified to counteract the injurious dumping.

(a)   Sampling

In view of the apparent number of parties involved in this proceeding, the Commission may decide to apply sampling, in accordance with Article 17 of the basic Regulation.

(i)   Sampling for exporters/producers in the People's Republic of China

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all exporters/producers, or representatives acting on their behalf, are hereby requested to make themselves known by contacting the Commission and providing the following information on their company or companies within the time limit set in point 6(b)(i) and in the formats indicated in point 7:

| — | name, address, e-mail address, telephone, and fax numbers and contact person, |
| --- | --- |

—

name, address, e-mail address, telephone, and fax numbers and contact person,

| — | the turnover in local currency and the volume in tonnes of the product concerned sold for export to the Community during the period 1 April 2007 to 31 March 2008, |
| --- | --- |

—

the turnover in local currency and the volume in tonnes of the product concerned sold for export to the Community during the period 1 April 2007 to 31 March 2008,

| — | the turnover in local currency and the sales volume in tonnes of the product concerned sold on the domestic market during the period 1 April 2007 to 31 March 2008, |
| --- | --- |

—

the turnover in local currency and the sales volume in tonnes of the product concerned sold on the domestic market during the period 1 April 2007 to 31 March 2008,

| — | the turnover in local currency and the sales volume in tonnes for the product concerned sold to other third countries during the period 1 April 2007 to 31 March 2008, |
| --- | --- |

—

the turnover in local currency and the sales volume in tonnes for the product concerned sold to other third countries during the period 1 April 2007 to 31 March 2008,

| — | the precise activities of the company with regard to the production of the product concerned and the production volume in tonnes of the product concerned, the production capacity and the investments in production capacity during the period 1 April 2007 to 31 March 2008, |
| --- | --- |

—

the precise activities of the company with regard to the production of the product concerned and the production volume in tonnes of the product concerned, the production capacity and the investments in production capacity during the period 1 April 2007 to 31 March 2008,

| — | the names and the precise activities of all related companies (8) involved in the production and/or selling (export and/or domestic) of the product concerned, |
| --- | --- |

—

the names and the precise activities of all related companies (8) involved in the production and/or selling (export and/or domestic) of the product concerned,

| — | any other relevant information that would assist the Commission in the selection of the sample. |
| --- | --- |

—

any other relevant information that would assist the Commission in the selection of the sample.

By providing the above information, the company agrees to its possible inclusion in the sample. If the company is chosen to be part of the sample, this will imply replying to a questionnaire and accepting an on-the-spot investigation of its response. If the company indicates that it does not agree to its possible inclusion or inclusion in the sample, it will be deemed to not have co-operated in the investigation. The consequences of non-cooperation are set out in point 8 below.

In order to obtain the information it deems necessary for the selection of the sample of exporters/producers, the Commission will, in addition, contact the authorities of the exporting countries, and any known associations of exporters/producers.

(ii)   Sampling for importers

In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all importers of the product concerned into the Community, or representatives acting on their behalf, are hereby requested to make themselves known to the Commission and to provide the following information on their company or companies within the time limit set in point 6(b)(i) and in the formats indicated in point 7:

| — | name, address, e-mail address, telephone, and fax numbers and contact person, |
| --- | --- |

—

name, address, e-mail address, telephone, and fax numbers and contact person,

| — | the total turnover in euro of the company during the period 1 April 2007 to 31 March 2008, |
| --- | --- |

—

the total turnover in euro of the company during the period 1 April 2007 to 31 March 2008,

| — | the total number of employees, |
| --- | --- |

—

the total number of employees,

| — | the precise activities of the company with regard to the product concerned, |
| --- | --- |

—

the precise activities of the company with regard to the product concerned,

| — | the volume in tonnes and value in euro of imports into and resales made in the Community market during the period 1 April 2007 to 31 March 2008 of the imported product concerned originating in the People's Republic of China and Thailand or consigned from Taiwan, Sri Lanka, Indonesia, the Philippines, whether declared as originating in Taiwan, Sri Lanka, Indonesia, the Philippines or not, |
| --- | --- |

—

the volume in tonnes and value in euro of imports into and resales made in the Community market during the period 1 April 2007 to 31 March 2008 of the imported product concerned originating in the People's Republic of China and Thailand or consigned from Taiwan, Sri Lanka, Indonesia, the Philippines, whether declared as originating in Taiwan, Sri Lanka, Indonesia, the Philippines or not,

| — | the names and the precise activities of all related companies involved in the production and/or selling of the product concerned (9), |
| --- | --- |

—

the names and the precise activities of all related companies involved in the production and/or selling of the product concerned (9),

| — | any other relevant information that would assist the Commission in the selection of the sample. |
| --- | --- |

—

any other relevant information that would assist the Commission in the selection of the sample.

By providing the above information, the company agrees to its possible inclusion in the sample. If the company is chosen to be part of the sample, this will imply replying to a questionnaire and accepting an on-the-spot investigation of its response. If the company indicates that it does not agree to its possible inclusion or inclusion in the sample, it will be deemed to not have co-operated in the investigation. The consequences of non-cooperation are set out in point 8 below.

In order to obtain the information it deems necessary for the selection of the sample of importers, the Commission will, in addition, contact any known associations of importers.

(iii)   Sampling for Community producers

In view of the large number of Community producers supporting the request, the Commission intends to investigate injury to the Community industry by applying sampling. In order to enable the Commission to select a sample, all Community producers are hereby requested to provide the following information on their company or companies within the time limit set in point 6(b)(i) and in the formats indicated in point 7:

| — | name, address, e-mail address, telephone and fax numbers, and contact person, |
| --- | --- |

—

name, address, e-mail address, telephone and fax numbers, and contact person,

| — | the total turnover in euro of the company during the period 1 April 2007 to 31 March 2008, |
| --- | --- |

—

the total turnover in euro of the company during the period 1 April 2007 to 31 March 2008,

| — | the precise activities of the company with regard to the product concerned, |
| --- | --- |

—

the precise activities of the company with regard to the product concerned,

| — | the value in EUR of sales of the product concerned made in the Community market during the period 1 April 2007 to 31 March 2008, |
| --- | --- |

—

the value in EUR of sales of the product concerned made in the Community market during the period 1 April 2007 to 31 March 2008,

| — | the volume in tonnes of sales of the product concerned made in the Community market during the period 1 April 2007 to 31 March 2008, |
| --- | --- |

—

the volume in tonnes of sales of the product concerned made in the Community market during the period 1 April 2007 to 31 March 2008,

| — | the volume in tonnes of the production of the product concerned during the period 1 April 2007 to 31 March 2008, |
| --- | --- |

—

the volume in tonnes of the production of the product concerned during the period 1 April 2007 to 31 March 2008,

| — | the names and the precise activities of all related companies (9) involved in the production and/or selling of the product concerned, |
| --- | --- |

—

the names and the precise activities of all related companies (9) involved in the production and/or selling of the product concerned,

| — | any other relevant information that would assist the Commission in the selection of the sample. |
| --- | --- |

—

any other relevant information that would assist the Commission in the selection of the sample.

By providing the above information, the company agrees to its possible inclusion in the sample. If the company is chosen to be part of the sample, this implies replying to a questionnaire and accepting an on-the-spot investigation of its response. If the company indicates that it does not agree to its possible inclusion or inclusion in the sample, it will be deemed to not have co-operated in the investigation. The consequences of non-cooperation are set out in point 8 below.

(iv)   Final selection of the samples

All interested parties wishing to submit any relevant information regarding the selection of the samples must do so within the time limit set in point 6(b)(ii).

The Commission intends to make the final selection of the samples after having consulted the parties concerned that have expressed their willingness to be included in the samples.

Companies included in the samples must reply to a questionnaire within the time limit set in point 6(b)(iii) and must co-operate within the framework of the investigation.

If sufficient co-operation is not forthcoming, the Commission may base its findings, in accordance with Articles 17(4) and 18 of the basic Regulation, on the facts available. A finding based on facts available may be less advantageous to the party concerned, as explained in point 8.

(b)   Questionnaires

In order to obtain the information it deems necessary for its investigation, the Commission will send questionnaires to the sampled Community industry and to any association of producers in the Community, to the sampled exporters/producers in the People's Republic of China, to the exporters/producers in Thailand, to Chup Hsin Enterprise Co. Ltd, Kaohsiung (Taiwan) and Niang Hong Pipe Fittings Co. Ltd, Kaohsiung (Taiwan), to any association of exporters/producers, to the sampled importers, to any association of importers named in the request or which co-operated in the investigation leading to the measures subject to the present review, to any known user or user association and to the authorities of the exporting countries concerned.

(c)   Collection of information and holding of hearings

All interested parties are hereby invited to make their views known, submit information other than questionnaire replies and to provide supporting evidence. This information and supporting evidence must reach the Commission within the time limit set in point 6(a)(ii).

Furthermore, the Commission may hear interested parties, provided that they make a request showing that there are particular reasons why they should be heard. This request must be made within the time limit set in point 6(a)(iii).

(d)   Selection of the market economy country

The Commission envisages using the United States of America as an appropriate market economy third country for the purpose of establishing normal value with respect to the People's Republic of China. Interested parties are hereby invited to comment on the appropriateness of this country within the specific time limit set in point 6(c).

5.2.   Procedure for the assessment of Community interest

In accordance with Article 21 of the basic Regulation and in the event that the likelihood of a continuation or recurrence of dumping and injury is confirmed, a determination will be made as to whether maintaining the anti-dumping measures would not be against the Community interest. For this reason the Community industry, importers, their representative associations, representative users and representative consumer organisations, provided that they prove that there is an objective link between their activity and the product concerned, may, within the general time limits set in point 6(a)(ii), make themselves known and provide the Commission with information. The parties which have acted in conformity with the previous sentence may request a hearing, setting out the particular reasons why they should be heard, within the time limit set in point 6(a)(iii). It should be noted that any information submitted pursuant to Article 21 of the basic Regulation will only be taken into account if supported by factual evidence at the time of submission.

6.   Time limits

(a)   General time limits

(i)   For parties to request a questionnaire

All interested parties who did not co-operate in the investigation leading to the measures subject to the present review should request a questionnaire or other claim forms as soon as possible, but not later than 15 days after the publication of this notice in the Official Journal of the European Union.

(ii)   For parties to make themselves known, to submit questionnaire replies and any other information

All interested parties, if their representations are to be taken into account during the investigation, must make themselves known by contacting the Commission, present their views and submit questionnaire replies or any other information within 40 days of the date of publication of this notice in the Official Journal of the European Union, unless otherwise specified. Attention is drawn to the fact that the exercise of most procedural rights set out in the basic Regulation depends on the party's making itself known within the aforementioned period.

Companies selected in a sample must submit questionnaire replies within the time limit specified in point 6(b)(iii).

(iii)   Hearings

All interested parties may also apply to be heard by the Commission within the same 40-day time limit.

(b)   Specific time limit in respect of sampling

| (i) | The information specified in point 5.1(a)(i), 5.1(a)(ii) and 5.1(a)(iii) should reach the Commission within 15 days of the date of publication of this notice in the Official Journal of the European Union, given that the Commission intends to consult parties concerned that have expressed their willingness to be included in the sample on its final selection within a period of 21 days of the publication of this notice in the Official Journal of the European Union. |
| --- | --- |

(i)

The information specified in point 5.1(a)(i), 5.1(a)(ii) and 5.1(a)(iii) should reach the Commission within 15 days of the date of publication of this notice in the Official Journal of the European Union, given that the Commission intends to consult parties concerned that have expressed their willingness to be included in the sample on its final selection within a period of 21 days of the publication of this notice in the Official Journal of the European Union.

| (ii) | All other information relevant for the selection of the sample as referred to in 5.1(a)(iv) must reach the Commission within a period of 21 days of the publication of this notice in the Official Journal of the European Union. |
| --- | --- |

(ii)

All other information relevant for the selection of the sample as referred to in 5.1(a)(iv) must reach the Commission within a period of 21 days of the publication of this notice in the Official Journal of the European Union.

| (iii) | The questionnaire replies from sampled parties must reach the Commission within 37 days from the date of the notification of their inclusion in the sample. |
| --- | --- |

(iii)

The questionnaire replies from sampled parties must reach the Commission within 37 days from the date of the notification of their inclusion in the sample.

(c)   Specific time limit for the selection of the market economy country

Parties to the investigation may wish to comment on the appropriateness of the United States of America which, as mentioned in point 5.1(d), is envisaged as a market-economy country for the purpose of establishing normal value in respect of the People's Republic of China. These comments must reach the Commission within 10 days of the date of publication of this notice in the Official Journal of the European Union.

7.   Written submissions, questionnaire replies and correspondence

All submissions and requests made by interested parties must be made in writing (not in electronic format, unless otherwise specified) and must indicate the name, address, e-mail address, telephone and fax numbers of the interested party. All written submissions, including the information requested in this notice, questionnaire replies and correspondence provided by interested parties on a confidential basis shall be labelled as ‘Limited’ (10) and, in accordance with Article 19(2) of the basic Regulation, shall be accompanied by a non-confidential version, which will be labelled ‘For inspection by interested parties’.

Commission address for correspondence:

| European Commission |
| --- |
| Directorate General for Trade |
| Directorate H |
| Office: J-79 4/23 |
| B-1049 Brussels |
| Fax (32-2) 295 65 05 |

European Commission

Directorate General for Trade

Directorate H

Office: J-79 4/23

B-1049 Brussels

Fax (32-2) 295 65 05

8.   Non-co-operation

In cases in which any interested party refuses access to or does not provide the necessary information within the time limits, or significantly impedes the investigation, findings, affirmative or negative, may be made in accordance with Article 18 of the basic Regulation, on the basis of the facts available.

Where it is found that any interested party has supplied false or misleading information, the information shall be disregarded and use may be made, in accordance with Article 18 of the basic Regulation, of the facts available. If an interested party does not cooperate or cooperates only partially, and use of facts available is made, the result may be less favourable to that party than if it had cooperated.

9.   Schedule of the investigation

The investigation will be concluded, according to Article 11(5) of the basic Regulation within 15 months of the date of the publication of this notice in the Official Journal of the European Union.

10.   Possibility to request a review under Article 11(3) of the basic Regulation

As this expiry review is initiated in accordance with the provisions of Article 11(2) of the basic Regulation, the findings thereof will not lead to the level of the existing measures being amended but will lead to those measures being repealed or maintained in accordance with Article 11(6) of the basic Regulation. However, the interim review which is also initiated by this notice may lead to the termination of the exemption from duties for the two companies mentioned in point 4.2.

If any party to the proceeding considers that a review of the level of the measures is warranted so as to allow for the possibility to amend (i.e. increase or decrease) the level of the measures, that party may request a review in accordance with Article 11(3) of the basic Regulation.

Parties wishing to request such a review, which would be carried out independently of the expiry review mentioned in this notice, may contact the Commission at the address given above.

11.   Processing of personal data

It is noted that any personal data collected in this investigation will be treated in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (11).

12.   Hearing Officer

It is also noted that if interested parties consider that they are encountering difficulties in the exercise of their rights of defence, they may request the intervention of the Hearing Officer of DG Trade. He acts as an interface between the interested parties and the Commission services, offering, where necessary, mediation on procedural matters affecting the protection of their interests in this proceeding, in particular with regard to issues concerning access to the file, confidentiality, extension of time limits and the treatment of written and/or oral submission of views. For further information and contact details, interested parties may consult the Hearing Officer's web pages on the website of DG Trade (http://ec.europa.eu/trade).

---

(1)  OJ C 238, 10.10.2007, p. 20.

(2)  OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation (EC) No 2117/2005 (OJ L 340, 23.12.2005, p. 17).

(3)  OJ L 139, 6.6.2003, p. 1.

(4)  OJ L 275, 25.8.2004, p. 1.

(5)  OJ L 94, 14.4.2000, p. 1. Regulation as last amended by Regulation (EC) No 2314/2000 (OJ L 267, 20.10.2000, p. 15).

(6)  OJ L 355, 1.12.2004, p. 4.

(7)  OJ L 116, 29.4.2006, p. 1.

(8)  For guidance on the meaning of related companies, please refer to Article 143 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ L 253, 11.10.1993, p. 1).

(9)  For guidance on the meaning of related companies, please refer to Article 143 of Regulation (EEC) No 2454/93.

(10)  This means that the document is for internal use only. It is protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). It is a confidential document pursuant to Article 19 of the basic Regulation and Article 6 of the WTO Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping Agreement).

(11)  OJ L 8, 12.1.2001, p. 1.

---

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY

Commission

| 5.6.2008 | EN | Official Journal of the European Union | C 138/48 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/48

---

Prior notification of a concentration

(Case COMP/M.5114 — Pernod Ricard/V&S)

(Text with EEA relevance)

(2008/C 138/13)

| 1. | On 29 May 2008, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Pernod Ricard SA (‘Pernod Ricard’, France), acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of V&S Vin & Spirit AB (‘V&S’, Sweden) by way of purchase of shares. |
| --- | --- |

1.

On 29 May 2008, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Pernod Ricard SA (‘Pernod Ricard’, France), acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of V&S Vin & Spirit AB (‘V&S’, Sweden) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | for Pernod Ricard: production and distribution of spirits and wines, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for Pernod Ricard: production and distribution of spirits and wines,

| — | for V&S: production and distribution of spirits and wines. |
| --- | --- |

—

for V&S: production and distribution of spirits and wines.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved.

| 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. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.5114 — Pernod Ricard/V&S, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| B-1049 Bruxelles/Brussel |

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. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.5114 — Pernod Ricard/V&S, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

B-1049 Bruxelles/Brussel

---

(1)  OJ L 24, 29.1.2004, p. 1.

---

| 5.6.2008 | EN | Official Journal of the European Union | C 138/49 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/49

---

Prior notification of a concentration

(Case COMP/M.5179 — Eramet/Tinfos)

(Text with EEA relevance)

(2008/C 138/14)

| 1. | On 29 May 2008, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Eramet SA (‘Eramet’, France) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of part of Tinfos A/S (all the assets of Tifnos excluding a 60 % in Tinfos' hydropower business) (‘Tinfos’, Norway) by way of purchase of shares. |
| --- | --- |

1.

On 29 May 2008, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Eramet SA (‘Eramet’, France) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of part of Tinfos A/S (all the assets of Tifnos excluding a 60 % in Tinfos' hydropower business) (‘Tinfos’, Norway) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | for Eramet: French mining and metallurgical group active in the areas of nickel, manganese and alloys, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for Eramet: French mining and metallurgical group active in the areas of nickel, manganese and alloys,

| — | for Tinfos: Norwegian company that is active in the areas of manganese alloys, titanium slag, pig iron, raw material trading and hydropower. |
| --- | --- |

—

for Tinfos: Norwegian company that is active in the areas of manganese alloys, titanium slag, pig iron, raw material trading and hydropower.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved.

| 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. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.5179 — Eramet/Tinfos, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| B-1049 Bruxelles/Brussel |

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. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.5179 — Eramet/Tinfos, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

B-1049 Bruxelles/Brussel

---

(1)  OJ L 24, 29.1.2004, p. 1.

---

| 5.6.2008 | EN | Official Journal of the European Union | C 138/50 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/50

---

Prior notification of a concentration

(Case COMP/M.5163 — DPWL/ZIM/CONTARSA)

Candidate case for simplified procedure

(Text with EEA relevance)

(2008/C 138/15)

| 1. | On 26 May 2008, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1), by which DP World Ltd (‘DPWL’, United Arab Emirates) and ZIM Integrated Shipping Services (‘ZIM’, Israel), acquire within the meaning of Article 3(1)(b) of the Council Regulation, joint control over Contarsa Sociedad de Estiba, SA (‘CONTARSA’, Spain) by way of purchase of shares. |
| --- | --- |

1.

On 26 May 2008, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1), by which DP World Ltd (‘DPWL’, United Arab Emirates) and ZIM Integrated Shipping Services (‘ZIM’, Israel), acquire within the meaning of Article 3(1)(b) of the Council Regulation, joint control over Contarsa Sociedad de Estiba, SA (‘CONTARSA’, Spain) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | for DPWL: global marine terminal operator, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for DPWL: global marine terminal operator,

| — | for ZIM: global transportation (container liner shipping services) and logistics services, operation of container terminals, |
| --- | --- |

—

for ZIM: global transportation (container liner shipping services) and logistics services, operation of container terminals,

| — | for CONTARSA: provision of stevedoring services in the Port of Tarragona. |
| --- | --- |

—

for CONTARSA: provision of stevedoring services in the Port of Tarragona.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under 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. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under 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. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.5163 — DPWL/ZIM/CONTARSA, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| B-1049 Bruxelles/Brussel |

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. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.5163 — DPWL/ZIM/CONTARSA, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

B-1049 Bruxelles/Brussel

---

(1)  OJ L 24, 29.1.2004, p. 1.

(2)  OJ C 56, 5.3.2005, p. 32.

---

| 5.6.2008 | EN | Official Journal of the European Union | C 138/51 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/51

---

Prior notification of a concentration

(Case COMP/M.5020 — Lesaffre/GBI UK)

(Text with EEA relevance)

(2008/C 138/16)

| 1. | On 23 May 2008, the Commission received a notification of a proposed concentration pursuant to Article 4 and following a referral pursuant to Article 22 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Compagnie des Levures Lesaffre SA (‘Lesaffre’, France) acquired, within the meaning of Article 3(1)(b) of the Council Regulation, sole control of the undertakings GB Ingredients Ltd (‘GBI’, United Kingdom) and BFP Wholesale Ltd (‘BFP’, United Kingdom), together ‘GBI UK’, by way of purchase of shares. |
| --- | --- |

1.

On 23 May 2008, the Commission received a notification of a proposed concentration pursuant to Article 4 and following a referral pursuant to Article 22 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Compagnie des Levures Lesaffre SA (‘Lesaffre’, France) acquired, within the meaning of Article 3(1)(b) of the Council Regulation, sole control of the undertakings GB Ingredients Ltd (‘GBI’, United Kingdom) and BFP Wholesale Ltd (‘BFP’, United Kingdom), together ‘GBI UK’, by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | for Lesaffre: production and sale of different types of yeast and bread-making products for artisan, industrial and home bakers, |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

for Lesaffre: production and sale of different types of yeast and bread-making products for artisan, industrial and home bakers,

| — | for GBI: production and sale of different types of yeast including bakers' yeast and distillery yeast, |
| --- | --- |

—

for GBI: production and sale of different types of yeast including bakers' yeast and distillery yeast,

| — | for BFP: distribution of bakery ingredients to independent bakeries and other small retail businesses. |
| --- | --- |

—

for BFP: distribution of bakery ingredients to independent bakeries and other small retail businesses.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved.

| 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. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.5020 — Lesaffre/GBI UK, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| B-1049 Bruxelles/Brussel |

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. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.5020 — Lesaffre/GBI UK, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

B-1049 Bruxelles/Brussel

---

(1)  OJ L 24, 29.1.2004, p. 1.

---

| 5.6.2008 | EN | Official Journal of the European Union | C 138/52 |
| --- | --- | --- | --- |

5.6.2008

EN

Official Journal of the European Union

C 138/52

---

Prior notification of a concentration

(Case COMP/M.4985 — BHP Billiton/Rio Tinto)

(Text with EEA relevance)

(2008/C 138/17)

| 1. | On 30 May 2008, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings BHP Billiton plc (United Kingdom) and BHP Billiton Limited (Australia) (altogether ‘BHP Billiton’) acquire within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertakings Rio Tinto plc (United Kingdom) and Rio Tinto Limited (Australia) (altogether ‘Rio Tinto’) by way of pre-conditional all share offer. |
| --- | --- |

1.

On 30 May 2008, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings BHP Billiton plc (United Kingdom) and BHP Billiton Limited (Australia) (altogether ‘BHP Billiton’) acquire within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertakings Rio Tinto plc (United Kingdom) and Rio Tinto Limited (Australia) (altogether ‘Rio Tinto’) by way of pre-conditional all share offer.

| 2. | The business activities of the undertakings concerned are:






  — | for BHP Billiton: global diversified resources company with operations producing iron ore, metallurgical and thermal coal, aluminium, copper, uranium, diamonds, other base metals (including lead, zinc, gold, molybdenum and silver), specialty products (including mineral sands), manganese, petroleum and stainless steel materials (including nickel and cobalt), |
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2.

The business activities of the undertakings concerned are:

—

for BHP Billiton: global diversified resources company with operations producing iron ore, metallurgical and thermal coal, aluminium, copper, uranium, diamonds, other base metals (including lead, zinc, gold, molybdenum and silver), specialty products (including mineral sands), manganese, petroleum and stainless steel materials (including nickel and cobalt),

| — | for Rio Tinto: global diversified resources company with operations producing iron ore, metallurgical and thermal coal, aluminium, copper, uranium and diamonds as well as other base metals and industrial minerals (including borates, mineral sands, salt and talc). |
| --- | --- |

—

for Rio Tinto: global diversified resources company with operations producing iron ore, metallurgical and thermal coal, aluminium, copper, uranium and diamonds as well as other base metals and industrial minerals (including borates, mineral sands, salt and talc).

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved. |
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3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of Regulation (EC) No 139/2004. However, the final decision on this point is reserved.

| 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. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.4985 — BHP Billiton/Rio Tinto, to the following address:





  European Commission |
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| Directorate-General for Competition |
| Merger Registry |
| J-70 |
| B-1049 Bruxelles/Brussel |

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. Observations can be sent to the Commission by fax ((32-2) 296 43 01 or 296 72 44) or by post, under reference number COMP/M.4985 — BHP Billiton/Rio Tinto, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

J-70

B-1049 Bruxelles/Brussel

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(1)  OJ L 24, 29.1.2004, p. 1.

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