# Official Journal L 221/2011

| | ISSN 1725-2555
  doi:10.3000/17252555.L_2011.221.eng |
| --- | --- |
| Official Journal
  of the European Union | L 221 |
| | |
| English edition | Legislation | Volume 5427 August 2011 |

ISSN 1725-2555

doi:10.3000/17252555.L_2011.221.eng

Official Journal

of the European Union

L 221

English edition

Legislation

Volume 5427 August 2011

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| Contents | | II   Non-legislative acts | page |
| --- | --- | --- | --- |
| | | REGULATIONS |
| | * | Commission Regulation (EU) No 863/2011 of 25 August 2011 establishing a prohibition of fishing for blue whiting in EU and international waters of I, II, III, IV, V, VI, VII, VIIIa, VIIIb, VIIId, VIIIe, XII and XIV by vessels flying the flag of Ireland | 1 |
| | | Commission Implementing Regulation (EU) No 864/2011 of 26 August 2011 establishing the standard import values for determining the entry price of certain fruit and vegetables | 3 |
| | | DECISIONS |
| | * | Council Decision 2011/518/CFSP of 25 August 2011 appointing the European Union Special Representative for the South Caucasus and the crisis in Georgia | 5 |
| | | 2011/519/EU |
| | * | Commission Decision of 29 June 2011 on measure SA.27106 (C 13/09 — ex N 614/08) which France is planning to implement for ports
  (notified under document C(2011) 4391)

   (
  1
  ) | 8 |

Contents

II   Non-legislative acts

page

REGULATIONS

*

Commission Regulation (EU) No 863/2011 of 25 August 2011 establishing a prohibition of fishing for blue whiting in EU and international waters of I, II, III, IV, V, VI, VII, VIIIa, VIIIb, VIIId, VIIIe, XII and XIV by vessels flying the flag of Ireland

1

Commission Implementing Regulation (EU) No 864/2011 of 26 August 2011 establishing the standard import values for determining the entry price of certain fruit and vegetables

3

DECISIONS

*

Council Decision 2011/518/CFSP of 25 August 2011 appointing the European Union Special Representative for the South Caucasus and the crisis in Georgia

5

2011/519/EU

*

Commission Decision of 29 June 2011 on measure SA.27106 (C 13/09 — ex N 614/08) which France is planning to implement for ports
  (notified under document C(2011) 4391)

   (
  1
  )

(notified under document C(2011) 4391)

1

8

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

---

(1)   Text with EEA relevance

1

| EN | Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.
  The titles of all other Acts are printed in bold type and preceded by an asterisk. |
| --- | --- |

EN

Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.

The titles of all other Acts are printed in bold type and preceded by an asterisk.

---

II Non-legislative acts

REGULATIONS

| 27.8.2011 | EN | Official Journal of the European Union | L 221/1 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

L 221/1

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COMMISSION REGULATION (EU) No 863/2011

of 25 August 2011

establishing a prohibition of fishing for blue whiting in EU and international waters of I, II, III, IV, V, VI, VII, VIIIa, VIIIb, VIIId, VIIIe, XII and XIV by vessels flying the flag of Ireland

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy (1), and in particular Article 36(2) thereof,

Whereas:

| (1) | Council Regulation (EU) No 57/2011 of 18 January 2011 fixing for 2011 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in EU waters and, for EU vessels, in certain non-EU waters (2), lays down quotas for 2011. |
| --- | --- |

(1)

Council Regulation (EU) No 57/2011 of 18 January 2011 fixing for 2011 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in EU waters and, for EU vessels, in certain non-EU waters (2), lays down quotas for 2011.

| (2) | According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member States referred to therein have exhausted the quota allocated for 2011. |
| --- | --- |

(2)

According to the information received by the Commission, catches of the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member States referred to therein have exhausted the quota allocated for 2011.

| (3) | It is therefore necessary to prohibit fishing activities for that stock, |
| --- | --- |

(3)

It is therefore necessary to prohibit fishing activities for that stock,

HAS ADOPTED THIS REGULATION:

Article 1

Quota exhaustion

The fishing quota allocated to the Member States referred to in the Annex to this Regulation for the stock referred to therein for 2011 shall be deemed to be exhausted from the date set out in that Annex.

Article 2

Prohibitions

Fishing activities for the stock referred to in the Annex to this Regulation by vessels flying the flag of or registered in the Member States referred to therein shall be prohibited from the date set out in that Annex. In particular it shall be prohibited to retain on board, relocate, tranship or land fish from that stock caught by those vessels after that date.

Article 3

Entry into force

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Official Journal of the European Union

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 25 August 2011.

For the Commission, On behalf of the President,

Lowri EVANS

Director-General for Maritime Affairs and Fisheries

---

(1)  
  OJ L 343, 22.12.2009, p. 1.

1

(2)  
  OJ L 24, 27.01.2011, p. 1.

2

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ANNEX

| No | 38/T&Q |
| --- | --- |
| Member State | Ireland |
| Stock | WHB/1X14 |
| Species | Blue whiting (Micromesistius poutassou) |
| Zone | EU and international waters of I, II, III, IV, V, VI, VII, VIIIa, VIIIb, VIIId, VIIIe, XII and XIV |
| Date | 17.8.2011 |

No

38/T&Q

Member State

Ireland

Stock

WHB/1X14

Species

Blue whiting (Micromesistius poutassou)

Zone

EU and international waters of I, II, III, IV, V, VI, VII, VIIIa, VIIIb, VIIId, VIIIe, XII and XIV

Date

17.8.2011

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| 27.8.2011 | EN | Official Journal of the European Union | L 221/3 |
| --- | --- | --- | --- |

27.8.2011

EN

Official Journal of the European Union

L 221/3

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COMMISSION IMPLEMENTING REGULATION (EU) No 864/2011

of 26 August 2011

establishing the standard import values for determining the entry price of certain fruit and vegetables

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1),

Having regard to Commission Implementing Regulation (EU) No 543/2011 of 7 June 2011 laying down detailed rules for the application of Council Regulation (EC) No 1234/2007 in respect of the fruit and vegetables and processed fruit and vegetables sectors (2), and in particular Article 136(1) thereof,

Whereas:

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

HAS ADOPTED THIS REGULATION:

Article 1

The standard import values referred to in Article 136 of Implementing Regulation (EU) No 543/2011 are fixed in the Annex hereto.

Article 2

This Regulation shall enter into force on 27 August 2011.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 26 August 2011.

For the Commission, On behalf of the President,

José Manuel SILVA RODRÍGUEZ

Director-General for Agriculture and Rural Development

---

(1)  
  OJ L 299, 16.11.2007, p. 1.

1

(2)  
  OJ L 157, 15.6.2011, p. 1.

2

---

ANNEX

Standard import values for determining the entry price of certain fruit and vegetables

| (EUR/100 kg) |
| --- |
| CN code | Third country code (1) | Standard import value |
| 0702 00 00 | AR | 35,6 |
| EC | 29,1 |
| MK | 48,0 |
| ZA | 77,2 |
| ZZ | 47,5 |
| 0707 00 05 | TR | 142,3 |
| ZZ | 142,3 |
| 0709 90 70 | EC | 41,0 |
| TR | 131,0 |
| ZZ | 86,0 |
| 0805 50 10 | AR | 81,9 |
| BR | 41,3 |
| CL | 81,4 |
| TR | 67,0 |
| UY | 79,4 |
| ZA | 95,6 |
| ZZ | 74,4 |
| 0806 10 10 | EG | 142,0 |
| MA | 177,0 |
| TR | 122,0 |
| ZZ | 147,0 |
| 0808 10 80 | AR | 89,3 |
| BR | 56,6 |
| CL | 109,6 |
| CN | 68,3 |
| NZ | 114,2 |
| US | 142,8 |
| ZA | 82,3 |
| ZZ | 94,7 |
| 0808 20 50 | AR | 132,0 |
| CN | 69,9 |
| NZ | 91,3 |
| TR | 134,9 |
| ZA | 114,6 |
| ZZ | 108,5 |
| 0809 30 | TR | 120,9 |
| ZZ | 120,9 |
| 0809 40 05 | BA | 43,7 |
| ZZ | 43,7 |

(EUR/100 kg)

CN code

Third country code (1)

Standard import value

0702 00 00

AR

35,6

EC

29,1

MK

48,0

ZA

77,2

ZZ

47,5

0707 00 05

TR

142,3

ZZ

142,3

0709 90 70

EC

41,0

TR

131,0

ZZ

86,0

0805 50 10

AR

81,9

BR

41,3

CL

81,4

TR

67,0

UY

79,4

ZA

95,6

ZZ

74,4

0806 10 10

EG

142,0

MA

177,0

TR

122,0

ZZ

147,0

0808 10 80

AR

89,3

BR

56,6

CL

109,6

CN

68,3

NZ

114,2

US

142,8

ZA

82,3

ZZ

94,7

0808 20 50

AR

132,0

CN

69,9

NZ

91,3

TR

134,9

ZA

114,6

ZZ

108,5

0809 30

TR

120,9

ZZ

120,9

0809 40 05

BA

43,7

ZZ

43,7

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(1)  Nomenclature of countries laid down by Commission Regulation (EC) No 1833/2006 (OJ L 354, 14.12.2006, p. 19). Code ‘
  ZZ
  ’ stands for ‘of other origin’.

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DECISIONS

| 27.8.2011 | EN | Official Journal of the European Union | L 221/5 |
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27.8.2011

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Official Journal of the European Union

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COUNCIL DECISION 2011/518/CFSP

of 25 August 2011

appointing the European Union Special Representative for the South Caucasus and the crisis in Georgia

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particular Articles 28, 31(2) and 33 thereof,

Having regard to the proposal from the High Representative of the Union for Foreign Affairs and Security Policy,

Whereas:

| (1) | On 20 February 2006, the Council adopted Joint Action 2006/121/CFSP (1) appointing Mr Peter SEMNEBY European Union Special Representative for the South Caucasus. The mandate of Mr Peter SEMNEBY expired on 28 February 2011. |
| --- | --- |

(1)

On 20 February 2006, the Council adopted Joint Action 2006/121/CFSP (1) appointing Mr Peter SEMNEBY European Union Special Representative for the South Caucasus. The mandate of Mr Peter SEMNEBY expired on 28 February 2011.

| (2) | On 25 September 2008, the Council adopted Joint Action 2008/760/CFSP (2) appointing Mr Pierre MOREL European Union Special Representative for the crisis in Georgia. The mandate of Mr Pierre MOREL expires on 31 August 2011. |
| --- | --- |

(2)

On 25 September 2008, the Council adopted Joint Action 2008/760/CFSP (2) appointing Mr Pierre MOREL European Union Special Representative for the crisis in Georgia. The mandate of Mr Pierre MOREL expires on 31 August 2011.

| (3) | A European Union Special Representative (EUSR) for the South Caucasus and the crisis in Georgia should be appointed for the period from 1 September 2011 to 30 June 2012. |
| --- | --- |

(3)

A European Union Special Representative (EUSR) for the South Caucasus and the crisis in Georgia should be appointed for the period from 1 September 2011 to 30 June 2012.

| (4) | The mandate of the EUSR will be implemented in the context of a situation which may deteriorate and could impede the achievement of the objectives of the Union’s external action as set out in Article 21 of the Treaty, |
| --- | --- |

(4)

The mandate of the EUSR will be implemented in the context of a situation which may deteriorate and could impede the achievement of the objectives of the Union’s external action as set out in Article 21 of the Treaty,

HAS ADOPTED THIS DECISION:

Article 1

Appointment

Mr Philippe LEFORT is hereby appointed European Union Special Representative (EUSR) for the South Caucasus and the crisis in Georgia for the period from 1 September 2011 until 30 June 2012. The mandate of the EUSR may be terminated earlier, if the Council so decides, on a proposal of the High Representative of the Union for Foreign Affairs and Security Policy (HR).

Article 2

Policy objectives

The mandate of the EUSR shall be based on the policy objectives of the Union for the South Caucasus, including the objectives set out in the Conclusions of the extraordinary European Council meeting in Brussels on 1 September 2008 and the Council Conclusions of 15 September 2008. Those objectives include:

| (a) | in accordance with the existing mechanisms, including the Organisation for Security and Cooperation in Europe (OSCE) and its Minsk Group, to prevent conflicts in the region, to contribute to a peaceful settlement of conflicts in the region, including the crisis in Georgia and the Nagorno-Karabakh conflict, by promoting the return of refugees and internally displaced persons and through other appropriate means, and to support the implementation of such a settlement in accordance with the principles of international law; |
| --- | --- |

(a)

in accordance with the existing mechanisms, including the Organisation for Security and Cooperation in Europe (OSCE) and its Minsk Group, to prevent conflicts in the region, to contribute to a peaceful settlement of conflicts in the region, including the crisis in Georgia and the Nagorno-Karabakh conflict, by promoting the return of refugees and internally displaced persons and through other appropriate means, and to support the implementation of such a settlement in accordance with the principles of international law;

| (b) | to engage constructively with main interested actors concerning the region; |
| --- | --- |

(b)

to engage constructively with main interested actors concerning the region;

| (c) | to encourage and to support further cooperation between Armenia, Azerbaijan and Georgia, and, as appropriate, their neighbouring countries; |
| --- | --- |

(c)

to encourage and to support further cooperation between Armenia, Azerbaijan and Georgia, and, as appropriate, their neighbouring countries;

| (d) | to enhance the Union’s effectiveness and visibility in the region. |
| --- | --- |

(d)

to enhance the Union’s effectiveness and visibility in the region.

Article 3

Mandate

In order to achieve the policy objectives, the mandate of the EUSR shall be:

| (a) | to develop contacts with governments, parliaments, other key political actors, the judiciary and civil society in the region; |
| --- | --- |

(a)

to develop contacts with governments, parliaments, other key political actors, the judiciary and civil society in the region;

| (b) | to encourage the countries in the region to cooperate on regional themes of common interest, such as common security threats, the fight against terrorism, illicit trafficking and organised crime; |
| --- | --- |

(b)

to encourage the countries in the region to cooperate on regional themes of common interest, such as common security threats, the fight against terrorism, illicit trafficking and organised crime;

| (c) | to contribute to the peaceful settlement of conflicts in accordance with the principles of international law and to facilitate the implementation of such settlement in close coordination with the United Nations, the OSCE and its Minsk Group; |
| --- | --- |

(c)

to contribute to the peaceful settlement of conflicts in accordance with the principles of international law and to facilitate the implementation of such settlement in close coordination with the United Nations, the OSCE and its Minsk Group;

| (d) | with respect to the crisis in Georgia:






  (i) | to help prepare for the international talks held under point 6 of the settlement plan of 12 August 2008 (‘Geneva International Discussions’) and its implementing measures of 8 September 2008, including on arrangements for security and stability in the region, the issue of refugees and internally displaced persons, on the basis of internationally recognised principles, and any other subject, by mutual agreement between the parties, |
| --- | --- | --- |

(d)

with respect to the crisis in Georgia:

(i)

to help prepare for the international talks held under point 6 of the settlement plan of 12 August 2008 (‘Geneva International Discussions’) and its implementing measures of 8 September 2008, including on arrangements for security and stability in the region, the issue of refugees and internally displaced persons, on the basis of internationally recognised principles, and any other subject, by mutual agreement between the parties,

| (ii) | to help establish the Union’s position and represent it, at the level of the EUSR, in the talks referred to in point (i), and |
| --- | --- |

(ii)

to help establish the Union’s position and represent it, at the level of the EUSR, in the talks referred to in point (i), and

| (iii) | to facilitate the implementation of the settlement plan of 12 August 2008 and its implementing measures of 8 September 2008; |
| --- | --- |

(iii)

to facilitate the implementation of the settlement plan of 12 August 2008 and its implementing measures of 8 September 2008;

| (e) | to facilitate the development and implementation of confidence-building measures; |
| --- | --- |

(e)

to facilitate the development and implementation of confidence-building measures;

| (f) | to assist in the preparation, as appropriate, of Union contributions to the implementation of a possible conflict settlement; |
| --- | --- |

(f)

to assist in the preparation, as appropriate, of Union contributions to the implementation of a possible conflict settlement;

| (g) | to intensify the Union’s dialogue with the main actors concerned regarding the region; |
| --- | --- |

(g)

to intensify the Union’s dialogue with the main actors concerned regarding the region;

| (h) | to assist the Union in further developing a comprehensive policy towards the South Caucasus; |
| --- | --- |

(h)

to assist the Union in further developing a comprehensive policy towards the South Caucasus;

| (i) | in the framework of the activities set out in this Article, to contribute to the implementation of the EU human rights policy and EU Guidelines on Human Rights, in particular with regard to children and women in areas affected by conflicts, especially by monitoring and addressing developments in this regard. |
| --- | --- |

(i)

in the framework of the activities set out in this Article, to contribute to the implementation of the EU human rights policy and EU Guidelines on Human Rights, in particular with regard to children and women in areas affected by conflicts, especially by monitoring and addressing developments in this regard.

Article 4

Implementation of the mandate

1.   The EUSR shall be responsible for the implementation of the mandate, acting under the authority of the HR.

2.   The Political and Security Committee (PSC) shall maintain a privileged link with the EUSR and shall be the EUSR's primary point of contact with the Council. The PSC shall provide the EUSR with strategic guidance and political direction within the framework of the mandate, without prejudice to the powers of the HR.

3.   The EUSR shall work in close coordination with the European External Action Service (EEAS).

Article 5

Financing

1.   The financial reference amount intended to cover the expenditure related to the mandate of the EUSR in the period from 1 September 2011 to 30 June 2012 shall be EUR 1 758 000.

2.   The expenditure financed by the amount set out in paragraph 1 shall be eligible as from 1 September 2011. The expenditure shall be managed in accordance with the procedures and rules applicable to the general budget of the Union.

3.   The management of the expenditure shall be subject to a contract between the EUSR and the Commission. The EUSR shall be accountable to the Commission for all expenditure.

Article 6

Constitution and composition of the team

1.   Within the limits of the EUSR's mandate and the corresponding financial means made available, the EUSR shall be responsible for constituting a team. The team shall include the expertise on specific policy issues as required by the mandate. The EUSR shall keep the Council and the Commission promptly informed of the composition of the team.

2.   Member States, the institutions of the Union and the EEAS may propose the secondment of staff to the EUSR. The salary of such seconded personnel shall be covered by the Member State, the institution of the Union concerned or the EEAS, respectively. Experts seconded by Member States to the institutions of the Union or the EEAS may also be posted to the EUSR. International contracted staff is to have the nationality of a Member State.

3.   All seconded personnel shall remain under the administrative authority of the sending Member State, the sending institution of the Union or the EEAS, and shall carry out their duties and act in the interest of the mandate of the EUSR.

Article 7

Privileges and immunities of the EUSR and the staff of the EUSR

The privileges, immunities and further guarantees necessary for the completion and smooth functioning of the EUSR's mission and the members of the EUSR's staff shall be agreed with the host party or parties, as appropriate. Member States and the Commission shall grant all necessary support to such effect.

Article 8

Security of EU classified information

The EUSR and the members of the EUSR's team shall respect the security principles and minimum standards established by Council Decision 2011/292/EU of 31 March 2011 on the security rules for protecting EU classified information (3).

3

Article 9

Access to information and logistical support

1.   Member States, the Commission and the General Secretariat of the Council shall ensure that the EUSR is given access to any relevant information.

2.   The Union delegations in the region and the Member States, as appropriate, shall provide logistical support in the region.

Article 10

Security

In accordance with the Union’s policy on the security of personnel deployed outside the Union in an operational capacity under Title V of the Treaty, the EUSR shall take all reasonably practicable measures, in accordance with the EUSR's mandate and the security situation in the geographical area of responsibility, for the security of all personnel under the direct authority of the EUSR, in particular by:

| (a) | establishing a mission-specific security plan, providing for mission-specific physical, organisational and procedural security measures governing the management of the secure movement of personnel to, and within, the mission area and the management of security incidents, and providing for a contingency plan and a mission evacuation plan; |
| --- | --- |

(a)

establishing a mission-specific security plan, providing for mission-specific physical, organisational and procedural security measures governing the management of the secure movement of personnel to, and within, the mission area and the management of security incidents, and providing for a contingency plan and a mission evacuation plan;

| (b) | ensuring that all personnel deployed outside the Union are covered by high risk insurance, as required by the conditions in the mission area; |
| --- | --- |

(b)

ensuring that all personnel deployed outside the Union are covered by high risk insurance, as required by the conditions in the mission area;

| (c) | ensuring that all members of the EUSR's team to be deployed outside the Union, including locally contracted personnel, have received appropriate security training before or upon arriving in the mission area, based on the risk ratings assigned to the mission area; |
| --- | --- |

(c)

ensuring that all members of the EUSR's team to be deployed outside the Union, including locally contracted personnel, have received appropriate security training before or upon arriving in the mission area, based on the risk ratings assigned to the mission area;

| (d) | ensuring that all agreed recommendations made following regular security assessments are implemented, and providing the Council, the HR and the Commission with written reports on their implementation and on other security issues within the framework of the mid-term report and the report on the implementation of the mandate. |
| --- | --- |

(d)

ensuring that all agreed recommendations made following regular security assessments are implemented, and providing the Council, the HR and the Commission with written reports on their implementation and on other security issues within the framework of the mid-term report and the report on the implementation of the mandate.

Article 11

Reporting

The EUSR shall regularly provide the PSC and the HR with oral and written reports. The EUSR shall also report to Council working parties as necessary. Regular written reports shall be circulated through the COREU network. Upon recommendation of the PSC or the HR, the EUSR may provide the Foreign Affairs Council with reports.

Article 12

Coordination

1.   The EUSR shall promote overall Union political coordination and shall help ensure that all Union instruments in the field are engaged coherently to attain the Union’s policy objectives. The activities of the EUSR shall be coordinated with those of the Commission. The EUSR shall provide regular briefings to Member States’ missions and the Union’s delegations.

2.   In the field, close liaison shall be maintained with the Heads of the Union delegations and Member States’ Heads of Mission, who shall make best efforts to assist the EUSR in the implementation of the mandate. The EUSR, in close co-ordination with the Head of the Delegation of the Union to Georgia, shall provide the Head of the European Union Monitoring Mission in Georgia (EUMM Georgia) with local political guidance. The EUSR and the Civilian Operation Commander for EUMM Georgia shall consult each other as required. The EUSR shall also liaise with other international and regional actors in the field.

Article 13

Review

The implementation of this Decision and its consistency with other contributions from the Union to the region shall be kept under regular review. The EUSR shall present the Council, the HR and the Commission with a progress report by the end of January 2012, and, at the end of the EUSR's mandate, with a comprehensive report on the implementation of the mandate.

Article 14

Entry into force

This Decision shall enter into force on the day of its adoption.

Done at Brussels, 25 August 2011.

For the Council

The President

M. DOWGIELEWICZ

---

(1)  
  OJ L 49, 21.2.2006, p. 14.

1

(2)  
  OJ L 259, 27.9.2008, p 16.

2

(3)  
  OJ L 141, 27.5.2011, p. 17.

3

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| 27.8.2011 | EN | Official Journal of the European Union | L 221/8 |
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27.8.2011

EN

Official Journal of the European Union

L 221/8

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COMMISSION DECISION

of 29 June 2011

on measure SA.27106 (C 13/09 — ex N 614/08) which France is planning to implement for ports

(notified under document C(2011) 4391)

(Only the French text is authentic)

(Text with EEA relevance)

(2011/519/EU)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 108(2), first subparagraph, thereof,

Having regard to the Agreement on the European Economic Area (1), and in particular Article 62(1)(a) thereof,

Having called on interested parties to submit their comments (2) pursuant to the first subparagraph of Article 108(2) of the Treaty on the Functioning of the European Union (TFEU) (3) and having regard to their comments,

Whereas:

1.   PROCEDURE

PROCEDURE

| (1) | By letter of 4 December 2008, the French authorities notified, pursuant to Article 108(3) of the Treaty on the Functioning of the European Union (TFEU), an aid scheme consisting of tax measures to underpin the port reform set out in Law No 2008-660 of 4 July 2008 (4). The aid was registered under number N 614/08. |
| --- | --- |

(1)

By letter of 4 December 2008, the French authorities notified, pursuant to Article 108(3) of the Treaty on the Functioning of the European Union (TFEU), an aid scheme consisting of tax measures to underpin the port reform set out in Law No 2008-660 of 4 July 2008 (4). The aid was registered under number N 614/08.

4

| (2) | The tax arrangements notified were intended to underpin the transfer of port-handling equipment to private operators as provided for under the reform. The arrangements consisted of two measures: a diminishing reduction over a five-year period of the rental value used as a basis for calculating the local tax paid by private operators taking over the port-handling equipment, and the possibility for the local authorities managing sea ports to exempt handling companies from business tax for a period of 6 years. |
| --- | --- |

(2)

The tax arrangements notified were intended to underpin the transfer of port-handling equipment to private operators as provided for under the reform. The arrangements consisted of two measures: a diminishing reduction over a five-year period of the rental value used as a basis for calculating the local tax paid by private operators taking over the port-handling equipment, and the possibility for the local authorities managing sea ports to exempt handling companies from business tax for a period of 6 years.

| (3) | By letter of 11 December 2008, the Commission asked the French authorities to provide additional information, not only on the tax arrangements notified but also on the transfer by the major sea ports of specific port-handling equipment and facilities. The deadline for replying was extended to 9 February 2009 at the request of the French authorities. |
| --- | --- |

(3)

By letter of 11 December 2008, the Commission asked the French authorities to provide additional information, not only on the tax arrangements notified but also on the transfer by the major sea ports of specific port-handling equipment and facilities. The deadline for replying was extended to 9 February 2009 at the request of the French authorities.

| (4) | A meeting between the French authorities and Commission representatives took place on 28 January 2009. By letter of 10 February 2009, the French authorities sent the Commission the information requested. |
| --- | --- |

(4)

A meeting between the French authorities and Commission representatives took place on 28 January 2009. By letter of 10 February 2009, the French authorities sent the Commission the information requested.

| (5) | By letter of 9 April 2009 (D/2165) the Commission notified the French authorities of its decision of 8 April 2009 to initiate the formal investigation procedure pursuant to Article 108(2) of the TFEU. The decision was published in the Official Journal of the European Union (5). The Commission’s decision concerns the tax arrangements notified and also the transfer by the major seaports of specific port-handling equipment and facilities. In it, the Commission invited France and interested parties to submit their comments within a certain time limit. |
| --- | --- |

(5)

By letter of 9 April 2009 (D/2165) the Commission notified the French authorities of its decision of 8 April 2009 to initiate the formal investigation procedure pursuant to Article 108(2) of the TFEU. The decision was published in the Official Journal of the European Union (5). The Commission’s decision concerns the tax arrangements notified and also the transfer by the major seaports of specific port-handling equipment and facilities. In it, the Commission invited France and interested parties to submit their comments within a certain time limit.

Official Journal of the European Union

5

| (6) | The Commission received the French authorities’ comments on 11 May 2009 (A/18191). It also received comments within the time limit from one interested party, the European Sea Ports Organisation (ESPO). ESPO’s comments were forwarded to the French authorities by letter of 16 July 2009 (D/60307). The latter’s comments were received by letter dated 27 August 2009 (A/28446). |
| --- | --- |

(6)

The Commission received the French authorities’ comments on 11 May 2009 (A/18191). It also received comments within the time limit from one interested party, the European Sea Ports Organisation (ESPO). ESPO’s comments were forwarded to the French authorities by letter of 16 July 2009 (D/60307). The latter’s comments were received by letter dated 27 August 2009 (A/28446).

| (7) | A meeting between the French authorities and Commission representatives took place on 30 November 2009. By letters of 25 January 2010 (A/3263) and of 24 March 2010 (A/5136), the French authorities sent the Commission additional information. |
| --- | --- |

(7)

A meeting between the French authorities and Commission representatives took place on 30 November 2009. By letters of 25 January 2010 (A/3263) and of 24 March 2010 (A/5136), the French authorities sent the Commission additional information.

| (8) | By letter of 9 June 2010 (D/7519) and in the context of the reform of business tax in France, the Commission asked the French authorities to provide additional information. The purpose of this letter from the Commission was to obtain clarification on the impact on the notified arrangements of the abolition of business tax and the procedural consequences of this. |
| --- | --- |

(8)

By letter of 9 June 2010 (D/7519) and in the context of the reform of business tax in France, the Commission asked the French authorities to provide additional information. The purpose of this letter from the Commission was to obtain clarification on the impact on the notified arrangements of the abolition of business tax and the procedural consequences of this.

| (9) | By letter dated 2 July 2010, the French authorities requested an extension of the deadline for replying. The Commission received the reply from the French authorities by letter of 4 August 2010 (A/11533). |
| --- | --- |

(9)

By letter dated 2 July 2010, the French authorities requested an extension of the deadline for replying. The Commission received the reply from the French authorities by letter of 4 August 2010 (A/11533).

| (10) | In this letter, the French authorities informed the Commission that they were withdrawing their notification of the tax measure as regards the possibility for the local authorities managing sea ports to exempt handling companies from business tax for a period of not more than 6 years. Under this measure, it was possible, under certain conditions, from 2010 to 2015, to exclude the rental value of specific port-handling equipment and facilities from the calculation of business tax. This possibility had now become irrelevant given the abolition of business tax and had in fact been repealed in the 2010 budget. |
| --- | --- |

(10)

In this letter, the French authorities informed the Commission that they were withdrawing their notification of the tax measure as regards the possibility for the local authorities managing sea ports to exempt handling companies from business tax for a period of not more than 6 years. Under this measure, it was possible, under certain conditions, from 2010 to 2015, to exclude the rental value of specific port-handling equipment and facilities from the calculation of business tax. This possibility had now become irrelevant given the abolition of business tax and had in fact been repealed in the 2010 budget.

| (11) | As regards the part of the notification referring to the diminishing reduction, limited in time, of the rental value used to establish local taxes to be paid by private operators taking over large sea port equipment and facilities, the French authorities stated in their letter of 2 July 2010 that this reduction also applied to the land tax paid by companies under the regional business tax (6) which replaces business tax. The French authorities passed on to the Commission the names of four companies (7) benefiting under this measure and the amount of the resulting tax benefit for each one. |
| --- | --- |

(11)

As regards the part of the notification referring to the diminishing reduction, limited in time, of the rental value used to establish local taxes to be paid by private operators taking over large sea port equipment and facilities, the French authorities stated in their letter of 2 July 2010 that this reduction also applied to the land tax paid by companies under the regional business tax (6) which replaces business tax. The French authorities passed on to the Commission the names of four companies (7) benefiting under this measure and the amount of the resulting tax benefit for each one.

6

7

| (12) | The updated figures for the tax benefits received showed that, for three of the companies concerned, the tax relief was lower than the threshold of two hundred thousand euro over a consecutive period of three fiscal years set out in Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid (8). However, the same did not apply to the fourth company. |
| --- | --- |

(12)

The updated figures for the tax benefits received showed that, for three of the companies concerned, the tax relief was lower than the threshold of two hundred thousand euro over a consecutive period of three fiscal years set out in Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid (8). However, the same did not apply to the fourth company.

8

| (13) | In this context, and following various contacts with the Commission, the French authorities decided to limit the tax benefit for companies under the measure set out in recital 11 to the threshold of the Commission Regulation (EC) No 1998/2006, subject to the conditions laid down therein. |
| --- | --- |

(13)

In this context, and following various contacts with the Commission, the French authorities decided to limit the tax benefit for companies under the measure set out in recital 11 to the threshold of the Commission Regulation (EC) No 1998/2006, subject to the conditions laid down therein.

| (14) | Thus by letter of 20 January 2011, the French authorities informed the Commission of the adoption of Article 36 of Law No 2010-1658 of 29 December 2010 on the supplementary budget for 2010 (9), which makes the diminishing tax reduction set out in the port reform subject to compliance with Regulation (EC) No 1998/2006. The French authorities also informed the Commission of the withdrawal of their notification concerning this tax aspect of the port reform. |
| --- | --- |

(14)

Thus by letter of 20 January 2011, the French authorities informed the Commission of the adoption of Article 36 of Law No 2010-1658 of 29 December 2010 on the supplementary budget for 2010 (9), which makes the diminishing tax reduction set out in the port reform subject to compliance with Regulation (EC) No 1998/2006. The French authorities also informed the Commission of the withdrawal of their notification concerning this tax aspect of the port reform.

9

| (15) | The Commission takes note of the withdrawal by the French authorities of the notification of all the tax arrangements notified. This Decision concerns only the procedure for transferring specific port-handling equipment and facilities that was the subject of the Commission’s decision of 8 April 2009. This Decision does not in any way concern the conditions for operating specific port-handling equipment and facilities before or after they have been transferred. |
| --- | --- |

(15)

The Commission takes note of the withdrawal by the French authorities of the notification of all the tax arrangements notified. This Decision concerns only the procedure for transferring specific port-handling equipment and facilities that was the subject of the Commission’s decision of 8 April 2009. This Decision does not in any way concern the conditions for operating specific port-handling equipment and facilities before or after they have been transferred.

2.   DESCRIPTION OF THE MEASURE INVESTIGATED

DESCRIPTION OF THE MEASURE INVESTIGATED

2.1.   Background

Background

| (16) | The measure at issue is part of the reform introduced by the port reform law (10). The purpose of the reform is to improve the performance and competitiveness of French sea ports (Dunkirk, Le Havre, Nantes Saint Nazaire, La Rochelle, Bordeaux and Marseilles). |
| --- | --- |

(16)

The measure at issue is part of the reform introduced by the port reform law (10). The purpose of the reform is to improve the performance and competitiveness of French sea ports (Dunkirk, Le Havre, Nantes Saint Nazaire, La Rochelle, Bordeaux and Marseilles).

10

| (17) | In this context, the law on port reform is aimed at:






  — | redefining the missions of the autonomous ports which, in mainland France, will become the ‘major sea ports’
   (11); |
| --- | --- | --- |

(17)

In this context, the law on port reform is aimed at:

—

redefining the missions of the autonomous ports which, in mainland France, will become the ‘major sea ports’
   (11);

11

| — | modernising governance of the major sea ports, |
| --- | --- |

—

modernising governance of the major sea ports,

| — | organising coordination between ports with the same hinterland or on the same inland waterway axis, |
| --- | --- |

—

organising coordination between ports with the same hinterland or on the same inland waterway axis,

| — | simplifying and rationalising port-handling in line with the main European ports, with the introduction of integrated terminal operators responsible for all handling operations, |
| --- | --- |

—

simplifying and rationalising port-handling in line with the main European ports, with the introduction of integrated terminal operators responsible for all handling operations,

| (18) | The missions of the major sea ports will be redirected to management activities (security, safety and port police) and to tasks relating to renovation of the port area. However, integrated terminal operators will be responsible for all handling operations in order to enhance the efficiency of these activities. |
| --- | --- |

(18)

The missions of the major sea ports will be redirected to management activities (security, safety and port police) and to tasks relating to renovation of the port area. However, integrated terminal operators will be responsible for all handling operations in order to enhance the efficiency of these activities.

| (19) | The French authorities explained that the transfer to private operators of the port-handling activities still carried out by the major sea ports under a procedure for the sale of equipment in the major maritime ports formed part of this drive to simplify and streamline port-handling operations. They also said that the reform would bring the French system closer to the European model where the functions of the port authority and port operator were clearly distinguished and where the latter was in most cases a private company. |
| --- | --- |

(19)

The French authorities explained that the transfer to private operators of the port-handling activities still carried out by the major sea ports under a procedure for the sale of equipment in the major maritime ports formed part of this drive to simplify and streamline port-handling operations. They also said that the reform would bring the French system closer to the European model where the functions of the port authority and port operator were clearly distinguished and where the latter was in most cases a private company.

2.2.   The procedure for transferring equipment

The procedure for transferring equipment

| (20) | The major sea ports will stop operating specific port-handling equipment and facilities (‘handling equipment’), which they will transfer to private companies under a sales procedure set out in Article 9 of the law on port reform. |
| --- | --- |

(20)

The major sea ports will stop operating specific port-handling equipment and facilities (‘handling equipment’), which they will transfer to private companies under a sales procedure set out in Article 9 of the law on port reform.

| (21) | Under this measure (12), the procedure for selling the handling equipment and transferring the property rights attached to it consists of several stages:






  — | Initially, the major sea port must negotiate the arrangements for transferring the handling equipment with the operators that regularly use the port services or have made significant investments in the terminal, |
| --- | --- | --- |

(21)

Under this measure (12), the procedure for selling the handling equipment and transferring the property rights attached to it consists of several stages:

12

—

Initially, the major sea port must negotiate the arrangements for transferring the handling equipment with the operators that regularly use the port services or have made significant investments in the terminal,

| — | If there are no operators or if the negotiations are not successfully concluded within 3 months, the major sea port must publish an invitation to tender following a transparent, non-discriminatory procedure, |
| --- | --- |

—

If there are no operators or if the negotiations are not successfully concluded within 3 months, the major sea port must publish an invitation to tender following a transparent, non-discriminatory procedure,

| — | If the tendering procedure proves fruitless and if the port’s strategic plan provides for this, the port can set up a subsidiary to which it can entrust the activity in question. A new tendering procedure must be organised at the end of a five-year period. Terminal contracts must be concluded with the successful candidates after the tendering procedure. |
| --- | --- |

—

If the tendering procedure proves fruitless and if the port’s strategic plan provides for this, the port can set up a subsidiary to which it can entrust the activity in question. A new tendering procedure must be organised at the end of a five-year period. Terminal contracts must be concluded with the successful candidates after the tendering procedure.

| (22) | Under Article 9 of the port reform law, a national independent committee, the National Committee for the Assessment of Port Equipment Transfers (CNECOP), is tasked with ensuring the smooth functioning and transparency of the equipment transfer procedure (13). Its role is to issue an opinion on the assessment of the equipment before it is transferred. In this context, it must take account of economic balance and the prospects for developing the business. For the purposes of this evaluation, the CNECOP can also call in an expert to estimate the value of the equipment. |
| --- | --- |

(22)

Under Article 9 of the port reform law, a national independent committee, the National Committee for the Assessment of Port Equipment Transfers (CNECOP), is tasked with ensuring the smooth functioning and transparency of the equipment transfer procedure (13). Its role is to issue an opinion on the assessment of the equipment before it is transferred. In this context, it must take account of economic balance and the prospects for developing the business. For the purposes of this evaluation, the CNECOP can also call in an expert to estimate the value of the equipment.

13

| (23) | The CNECOP’s opinions are based on the draft sales deeds which must be included in the file communicated by the chairmen of the boards of major sea ports pursuant to Article 9 of the port reform law. These drafts contain a description of the equipment to be sold, their price and the financing conditions. |
| --- | --- |

(23)

The CNECOP’s opinions are based on the draft sales deeds which must be included in the file communicated by the chairmen of the boards of major sea ports pursuant to Article 9 of the port reform law. These drafts contain a description of the equipment to be sold, their price and the financing conditions.

| (24) | No final sales deed can be signed without a prior opinion by the CNECOP. This is a simple opinion (non-binding) published at national and local levels. |
| --- | --- |

(24)

No final sales deed can be signed without a prior opinion by the CNECOP. This is a simple opinion (non-binding) published at national and local levels.

| (25) | The members of the CNECOP include one judge from the Court of Auditors, one representative of local authorities and one person with professional experience of ports. The duties of a CNECOP member are incompatible with those inherent in another position of responsibility in the management or supervision of major sea ports or handling companies purchasing public equipment, for the entire contract period and for a period of 5 years after its cessation. |
| --- | --- |

(25)

The members of the CNECOP include one judge from the Court of Auditors, one representative of local authorities and one person with professional experience of ports. The duties of a CNECOP member are incompatible with those inherent in another position of responsibility in the management or supervision of major sea ports or handling companies purchasing public equipment, for the entire contract period and for a period of 5 years after its cessation.

3.   GROUNDS FOR INITIATING THE FORMAL INVESTIGATION PROCEDURE

GROUNDS FOR INITIATING THE FORMAL INVESTIGATION PROCEDURE

| (26) | In its decision of 8 April 2009, the Commission considered that it could not rule out that transferring port-handling equipment through a direct agreement procedure could be considered a form of state aid. The Commission noted, in this respect, that the CNECOP opinion was not binding. Given this, the Commission expressed doubts as to whether the equipment would be sold at the market price. It also questioned the independence of the CNECOP members. |
| --- | --- |

(26)

In its decision of 8 April 2009, the Commission considered that it could not rule out that transferring port-handling equipment through a direct agreement procedure could be considered a form of state aid. The Commission noted, in this respect, that the CNECOP opinion was not binding. Given this, the Commission expressed doubts as to whether the equipment would be sold at the market price. It also questioned the independence of the CNECOP members.

| (27) | When checking this handling equipment transfer procedure for compatibility with the internal market, the Commission considered that none of the derogations set out in Article 107(2) and (3) TFEU seemed applicable in this case. |
| --- | --- |

(27)

When checking this handling equipment transfer procedure for compatibility with the internal market, the Commission considered that none of the derogations set out in Article 107(2) and (3) TFEU seemed applicable in this case.

| (28) | Accordingly, the Commission decided to initiate the formal investigation procedure in order to allay its doubts both as to whether the handling equipment transfer procedure constituted state aid and as to its compatibility with the internal market. |
| --- | --- |

(28)

Accordingly, the Commission decided to initiate the formal investigation procedure in order to allay its doubts both as to whether the handling equipment transfer procedure constituted state aid and as to its compatibility with the internal market.

4.   COMMENTS FROM THE FRENCH AUTHORITIES

COMMENTS FROM THE FRENCH AUTHORITIES

| (29) | As regards the nature of the opinion issued by the CNECOP, the French authorities pointed out that this committee consists of four independent members, including the chairman, appointed from among the judges in the Court of Auditors by its First President, and that it issues an opinion on cases of public equipment transfers submitted to it by the chairmen of the boards of the major sea ports. These cases comprise a description of the direct agreement procedure, a list of the properties transferred, the draft sales deed stating in particular the envisaged price and the conditions for operating the terminal. |
| --- | --- |

(29)

As regards the nature of the opinion issued by the CNECOP, the French authorities pointed out that this committee consists of four independent members, including the chairman, appointed from among the judges in the Court of Auditors by its First President, and that it issues an opinion on cases of public equipment transfers submitted to it by the chairmen of the boards of the major sea ports. These cases comprise a description of the direct agreement procedure, a list of the properties transferred, the draft sales deed stating in particular the envisaged price and the conditions for operating the terminal.

| (30) | The French authorities also pointed out that the CNECOP is, in particular, tasked with ensuring, in line with Article L. 3211-18 of the General Code on Public Authority Property, that public equipment will not be transferred ‘free of charge or at a lower price than the market price’, thus complying with the requirement of transfer of public property at the market price. |
| --- | --- |

(30)

The French authorities also pointed out that the CNECOP is, in particular, tasked with ensuring, in line with Article L. 3211-18 of the General Code on Public Authority Property, that public equipment will not be transferred ‘free of charge or at a lower price than the market price’, thus complying with the requirement of transfer of public property at the market price.

| (31) | This committee issues a simple opinion which is published to prevent transfers at a price lower than the market price. The authorities undertake to ensure that the opinion is published on the website and in the official gazette of the Ministry of Ecology, Energy, Sustainable Development and Regional Development, and at local level, by means of notices posted in each major sea port. The French authorities stated that they would also send a letter to each chairman of the board of a major sea port (the director of which is responsible for protecting the interests of the port), reminding them of the CNECOP’s rules of procedure and the rules for transferring public property, with which they must comply. |
| --- | --- |

(31)

This committee issues a simple opinion which is published to prevent transfers at a price lower than the market price. The authorities undertake to ensure that the opinion is published on the website and in the official gazette of the Ministry of Ecology, Energy, Sustainable Development and Regional Development, and at local level, by means of notices posted in each major sea port. The French authorities stated that they would also send a letter to each chairman of the board of a major sea port (the director of which is responsible for protecting the interests of the port), reminding them of the CNECOP’s rules of procedure and the rules for transferring public property, with which they must comply.

| (32) | The French authorities added that, pursuant to Article L. 313-6 of the Public Finance Courts Code, the chairmen of the boards can be fined up to double the amount of the gross annual salary they are receiving at the date of the infringement for any unjustified advantage which they may have attempted to procure or have procured for a third party, either financial or in kind, causing damage to the Treasury, the local authorities or the organisation in question. |
| --- | --- |

(32)

The French authorities added that, pursuant to Article L. 313-6 of the Public Finance Courts Code, the chairmen of the boards can be fined up to double the amount of the gross annual salary they are receiving at the date of the infringement for any unjustified advantage which they may have attempted to procure or have procured for a third party, either financial or in kind, causing damage to the Treasury, the local authorities or the organisation in question.

| (33) | The French authorities also undertook to notify the Commission before the signature of the sales deed of any decision by the chairman of the board of a major sea port which departs from the CNECOP opinion. |
| --- | --- |

(33)

The French authorities also undertook to notify the Commission before the signature of the sales deed of any decision by the chairman of the board of a major sea port which departs from the CNECOP opinion.

| (34) | As regards the competence and independence of the CNECOP members, the French authorities submitted to the Commission the curriculum vitae of the four CNECOP members, including that of its chairman, specifying the qualifications of each one of its members in terms of the CNECOP’s responsibilities. According to the French authorities, all of these members were proposed because of their knowledge of sales and privatisation processes and their experience in relation to ports, as witnessed by their curriculum vitae. |
| --- | --- |

(34)

As regards the competence and independence of the CNECOP members, the French authorities submitted to the Commission the curriculum vitae of the four CNECOP members, including that of its chairman, specifying the qualifications of each one of its members in terms of the CNECOP’s responsibilities. According to the French authorities, all of these members were proposed because of their knowledge of sales and privatisation processes and their experience in relation to ports, as witnessed by their curriculum vitae.

| (35) | The French authorities pointed out that the independence of Court of Auditor judges is enshrined in the Constitution of 4 October 1958 and confirmed by Constitutional Council Decision No 2001-448 DC of 25 July 2001, and that the independence of members of parliament with respect to the executive power is enshrined in Article 16 of the Declaration of Human and Citizen’s Rights of 26 August 1789 which lays down the principle of separation of powers and is included in the preamble to the Constitution of 4 October 1958. |
| --- | --- |

(35)

The French authorities pointed out that the independence of Court of Auditor judges is enshrined in the Constitution of 4 October 1958 and confirmed by Constitutional Council Decision No 2001-448 DC of 25 July 2001, and that the independence of members of parliament with respect to the executive power is enshrined in Article 16 of the Declaration of Human and Citizen’s Rights of 26 August 1789 which lays down the principle of separation of powers and is included in the preamble to the Constitution of 4 October 1958.

| (36) | The French authorities also pointed out that, in accordance with Article 6 of Decree No 2008-1032 of 9 October 2008 implementing Law No 2008-660 (14), rules on conflicts of interest providing an additional guarantee of the independence of the CNECOP members apply to its members throughout their mandate and for 5 years following the end of it:






  — | this applies to all mandates for members of the board of directors, management board or supervisory board of a port-handling company which has purchased public port equipment and to the performance of activities paid for by such a company; and |
| --- | --- | --- |

(36)

The French authorities also pointed out that, in accordance with Article 6 of Decree No 2008-1032 of 9 October 2008 implementing Law No 2008-660 (14), rules on conflicts of interest providing an additional guarantee of the independence of the CNECOP members apply to its members throughout their mandate and for 5 years following the end of it:

14

—

this applies to all mandates for members of the board of directors, management board or supervisory board of a port-handling company which has purchased public port equipment and to the performance of activities paid for by such a company; and

| — | it also applies to all mandates as members of the supervisory board or management board of a major sea port. |
| --- | --- |

—

it also applies to all mandates as members of the supervisory board or management board of a major sea port.

| (37) | Lastly, they stated that the CNECOP’s capacity in terms of experts can be reinforced since Article 7 of Decree No 2008-1032 of 9 October 2008 states that an expert can be called in to estimate more precisely the value of equipment before it is transferred to handling companies. |
| --- | --- |

(37)

Lastly, they stated that the CNECOP’s capacity in terms of experts can be reinforced since Article 7 of Decree No 2008-1032 of 9 October 2008 states that an expert can be called in to estimate more precisely the value of equipment before it is transferred to handling companies.

| (38) | In the light of the above, the French authorities felt that the transfer procedures laid down by the port reform law provide sufficient guarantees to ensure that port-handling equipment and the property rights attached to it are sold at the market price and, hence, no state aid is involved. |
| --- | --- |

(38)

In the light of the above, the French authorities felt that the transfer procedures laid down by the port reform law provide sufficient guarantees to ensure that port-handling equipment and the property rights attached to it are sold at the market price and, hence, no state aid is involved.

5.   COMMENTS BY THE INTERESTED PARTY AND COMMENTS BY THE FRENCH AUTHORITIES ON THE COMMENTS BY THE INTERESTED PARTY

COMMENTS BY THE INTERESTED PARTY AND COMMENTS BY THE FRENCH AUTHORITIES ON THE COMMENTS BY THE INTERESTED PARTY

| (39) | ESPO pointed out, in support of the views of the French authorities, that by restoring the so-called ‘landlord model’, the reform in question contributes to improving the competitiveness of French ports and the overall performance of European ports. Transfer by the major sea ports of port-handling activities to private operators will in effect modernise the governance of the major French sea ports by bringing them into line with the most widely-used model in the European Union and throughout the world. |
| --- | --- |

(39)

ESPO pointed out, in support of the views of the French authorities, that by restoring the so-called ‘landlord model’, the reform in question contributes to improving the competitiveness of French ports and the overall performance of European ports. Transfer by the major sea ports of port-handling activities to private operators will in effect modernise the governance of the major French sea ports by bringing them into line with the most widely-used model in the European Union and throughout the world.

| (40) | Given the complexity of this reform and its social and financial implications, ESPO stated that support by the Member State concerned is often the only way of making such an extensive reform acceptable to all the stakeholders. |
| --- | --- |

(40)

Given the complexity of this reform and its social and financial implications, ESPO stated that support by the Member State concerned is often the only way of making such an extensive reform acceptable to all the stakeholders.

| (41) | While not wishing to assess in detail whether or not the measures in question qualify as state aid, ESPO pointed out that the conditions for evaluating the equipment are sufficient to guarantee that they are sold at the market price. |
| --- | --- |

(41)

While not wishing to assess in detail whether or not the measures in question qualify as state aid, ESPO pointed out that the conditions for evaluating the equipment are sufficient to guarantee that they are sold at the market price.

| (42) | The French authorities took note of the comments by ESPO. |
| --- | --- |

(42)

The French authorities took note of the comments by ESPO.

6.   ASSESSMENT OF THE MEASURE

ASSESSMENT OF THE MEASURE

| (43) | Following the initiation of the formal investigation procedure under Article 108(2) TFEU and bearing in mind the arguments put forward in that context by the French authorities and the interested party, the Commission takes the view that the tax scheme in question does not constitute state aid within the meaning of Article 107(1) TFEU. |
| --- | --- |

(43)

Following the initiation of the formal investigation procedure under Article 108(2) TFEU and bearing in mind the arguments put forward in that context by the French authorities and the interested party, the Commission takes the view that the tax scheme in question does not constitute state aid within the meaning of Article 107(1) TFEU.

| (44) | According to Article 107(1) TFEU, ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market’. |
| --- | --- |

(44)

According to Article 107(1) TFEU, ‘any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market’.

| (45) | Classifying a national measure as state aid presupposes that the following cumulative conditions are met: the measure in question confers an advantage through state resources; (2) the advantage is selective; and (3) the measure distorts or threatens to distort competition and is capable of affecting trade between Member States (15). |
| --- | --- |

(45)

Classifying a national measure as state aid presupposes that the following cumulative conditions are met: the measure in question confers an advantage through state resources; (2) the advantage is selective; and (3) the measure distorts or threatens to distort competition and is capable of affecting trade between Member States (15).

15

| (46) | First it must be pointed out that, in order to rule out any advantage, the public property in question – the port-handling equipment – must be sold at the market rate. |
| --- | --- |

(46)

First it must be pointed out that, in order to rule out any advantage, the public property in question – the port-handling equipment – must be sold at the market rate.

| (47) | In this respect, the Commission points out that the port-handling equipment is not being sold by means of an open, transparent, non-discriminatory and unconditional procedure since only if the direct negotiations with the current operators are not successful, or if there is no current operator, will such a procedure be launched (see recital 21 above). |
| --- | --- |

(47)

In this respect, the Commission points out that the port-handling equipment is not being sold by means of an open, transparent, non-discriminatory and unconditional procedure since only if the direct negotiations with the current operators are not successful, or if there is no current operator, will such a procedure be launched (see recital 21 above).

| (48) | However, the Commission notes that, in the event of sale by direct agreement, the proposed procedure involves the establishment of a National Committee for the Evaluation of Port Equipment Transfers, the CNECOP. The Commission notes that, prior to the sale, the CNECOP must issue a public opinion on the value of the property to be sold. |
| --- | --- |

(48)

However, the Commission notes that, in the event of sale by direct agreement, the proposed procedure involves the establishment of a National Committee for the Evaluation of Port Equipment Transfers, the CNECOP. The Commission notes that, prior to the sale, the CNECOP must issue a public opinion on the value of the property to be sold.

| (49) | In the framework of its decision of 8 April 2009 to initiate the formal investigation procedure, the Commission pointed out that, since that the opinion expressed by the CNECOP was not binding, it was still possible that the property could be sold at a lower price than the market rate. |
| --- | --- |

(49)

In the framework of its decision of 8 April 2009 to initiate the formal investigation procedure, the Commission pointed out that, since that the opinion expressed by the CNECOP was not binding, it was still possible that the property could be sold at a lower price than the market rate.

| (50) | Acknowledging the doubts expressed by the Commission, the French authorities informed it, in letters dated 20 January 2010 and 24 March 2010, that the Director of the Transport Department had sent letters to all chairmen of the boards of the major sea ports on 16 March 2009 and 18 January 2010 explaining the framework for negotiating the sale of the port-handling equipment and specifying the conditions to be respected for the purpose of this sale. |
| --- | --- |

(50)

Acknowledging the doubts expressed by the Commission, the French authorities informed it, in letters dated 20 January 2010 and 24 March 2010, that the Director of the Transport Department had sent letters to all chairmen of the boards of the major sea ports on 16 March 2009 and 18 January 2010 explaining the framework for negotiating the sale of the port-handling equipment and specifying the conditions to be respected for the purpose of this sale.

| (51) | In these letters, the chairmen of the boards of the major sea ports were informed that the CNECOP would systematically ask the major sea ports to have the value of the property to be sold assessed. Thus, before referral of the matter to the CNECOP, an independent technical valuation of the market value of the port equipment should be carried out by an independent firm and should be included in the file sent to the CNECOP. |
| --- | --- |

(51)

In these letters, the chairmen of the boards of the major sea ports were informed that the CNECOP would systematically ask the major sea ports to have the value of the property to be sold assessed. Thus, before referral of the matter to the CNECOP, an independent technical valuation of the market value of the port equipment should be carried out by an independent firm and should be included in the file sent to the CNECOP.

| (52) | The chairmen of the major sea ports were also informed that while the law did not regard CNECOP opinions as conferring approval, they could not be overruled, therefore no sales deed departing from an opinion issued by the CNECOP could be signed. Thus in the event of a negative opinion by the CNECOP, either the negotiations should be resumed, if the date for referral to the CNECOP permitted this, and a new file should where appropriate be presented, or the failure of the negotiations should be acknowledged and a tendering procedure should be launched. |
| --- | --- |

(52)

The chairmen of the major sea ports were also informed that while the law did not regard CNECOP opinions as conferring approval, they could not be overruled, therefore no sales deed departing from an opinion issued by the CNECOP could be signed. Thus in the event of a negative opinion by the CNECOP, either the negotiations should be resumed, if the date for referral to the CNECOP permitted this, and a new file should where appropriate be presented, or the failure of the negotiations should be acknowledged and a tendering procedure should be launched.

| (53) | Moreover, the government commissioners for the major sea ports must automatically oppose all deliberations by the port supervisory board that disregard an opinion by the CNECOP, and chairmen of the boards of major sea ports are reminded of the sanctions in the event that they grant an unjustified advantage to third parties in the performance of their duties. |
| --- | --- |

(53)

Moreover, the government commissioners for the major sea ports must automatically oppose all deliberations by the port supervisory board that disregard an opinion by the CNECOP, and chairmen of the boards of major sea ports are reminded of the sanctions in the event that they grant an unjustified advantage to third parties in the performance of their duties.

| (54) | The Commission considers that these instructions addressed to the chairmen of the boards of the major sea ports concerning the need to have an independent evaluation of the port-handling equipment to be sold and concerning the binding nature of CNECOP opinions are sufficient to guarantee that the equipment in question will not be sold at a lower price than the market price. |
| --- | --- |

(54)

The Commission considers that these instructions addressed to the chairmen of the boards of the major sea ports concerning the need to have an independent evaluation of the port-handling equipment to be sold and concerning the binding nature of CNECOP opinions are sufficient to guarantee that the equipment in question will not be sold at a lower price than the market price.

| (55) | The Commission notes, moreover, that this is further reinforced by the fact that the CNECOP opinion must be published nationally by the national authorities and locally by the ports. Where appropriate, these publications are sufficient to enable the conditions of sale of the handling equipment in question to be disputed. |
| --- | --- |

(55)

The Commission notes, moreover, that this is further reinforced by the fact that the CNECOP opinion must be published nationally by the national authorities and locally by the ports. Where appropriate, these publications are sufficient to enable the conditions of sale of the handling equipment in question to be disputed.

| (56) | As regards the independence and qualifications of the CNECOP members for the purpose of evaluating the equipment sold, the French authorities have sent the Commission the curriculum vitae of its four members, including the chairman. |
| --- | --- |

(56)

As regards the independence and qualifications of the CNECOP members for the purpose of evaluating the equipment sold, the French authorities have sent the Commission the curriculum vitae of its four members, including the chairman.

| (57) | It is worthwhile pointing out that one of the CNECOP members, a member of the Court of Auditors, has been proposed by the First President of the Court of Auditors as chair of the CNECOP, and that he has direct professional experience of maritime affairs. The French authorities point out that the independence of the judges in the Court of Auditors with respect to the legislative and executive powers is enshrined in the Constitution of 4 October 1958 and confirmed by Constitutional Council Decision No 2001-448 DC of 25 July 2001. |
| --- | --- |

(57)

It is worthwhile pointing out that one of the CNECOP members, a member of the Court of Auditors, has been proposed by the First President of the Court of Auditors as chair of the CNECOP, and that he has direct professional experience of maritime affairs. The French authorities point out that the independence of the judges in the Court of Auditors with respect to the legislative and executive powers is enshrined in the Constitution of 4 October 1958 and confirmed by Constitutional Council Decision No 2001-448 DC of 25 July 2001.

| (58) | The CNECOP member who represents regional authorities has expertise directly relating to maritime ports. The French authorities state that the independence of members of parliament with respect to the executive power is guaranteed by Article 16 of the Declaration of Human and Citizen Rights of 26 August 1789, which contains the principle of separation of powers, and features in the preamble to the Constitution of 4 October 1958. |
| --- | --- |

(58)

The CNECOP member who represents regional authorities has expertise directly relating to maritime ports. The French authorities state that the independence of members of parliament with respect to the executive power is guaranteed by Article 16 of the Declaration of Human and Citizen Rights of 26 August 1789, which contains the principle of separation of powers, and features in the preamble to the Constitution of 4 October 1958.

| (59) | As for the two members proposed as people with professional experience, it can be clearly seen from their curriculum vitae that one has experience of ports and that the other is experienced in the transfer of public property. |
| --- | --- |

(59)

As for the two members proposed as people with professional experience, it can be clearly seen from their curriculum vitae that one has experience of ports and that the other is experienced in the transfer of public property.

| (60) | The French authorities also point out that, in accordance with Article 6 of Decree No 2008-1032 of 9 October 2008 (16), rules on conflicts of interest are binding on CNECOP members throughout their mandates and for 5 years after they end (see recital 36). |
| --- | --- |

(60)

The French authorities also point out that, in accordance with Article 6 of Decree No 2008-1032 of 9 October 2008 (16), rules on conflicts of interest are binding on CNECOP members throughout their mandates and for 5 years after they end (see recital 36).

16

| (61) | The Commission considers that these rules on conflicts of interest constitute, in the case in question, an additional guarantee of the independence of the CNECOP members. |
| --- | --- |

(61)

The Commission considers that these rules on conflicts of interest constitute, in the case in question, an additional guarantee of the independence of the CNECOP members.

| (62) | Given these elements and the specific circumstances in this case, the Commission feels that the obligation to have the market value of the equipment estimated by an independent firm, on the basis of which the experienced, independent CNECOP members would issue a binding opinion, in principle guarantees that transfers will be made in accordance with market conditions. |
| --- | --- |

(62)

Given these elements and the specific circumstances in this case, the Commission feels that the obligation to have the market value of the equipment estimated by an independent firm, on the basis of which the experienced, independent CNECOP members would issue a binding opinion, in principle guarantees that transfers will be made in accordance with market conditions.

| (63) | Provided the conditions and circumstances referred to in Section 6, Assessment of the measure, are complied with, it follows from the above that there are no grounds for considering that the sale of port-handling equipment in the context of a direct agreement is likely to confer an economic advantage on the purchasers of that equipment. This would not be the case as regards individual transactions that did not strictly comply with the said conditions. |
| --- | --- |

(63)

Provided the conditions and circumstances referred to in Section 6, Assessment of the measure, are complied with, it follows from the above that there are no grounds for considering that the sale of port-handling equipment in the context of a direct agreement is likely to confer an economic advantage on the purchasers of that equipment. This would not be the case as regards individual transactions that did not strictly comply with the said conditions.

Assessment of the measure

7.   CONCLUSION

CONCLUSION

| (64) | In the light of all these comments, the Commission






  — | takes note of the withdrawal of the notification concerning the two support measures notified in relation to the tax dimension of the port reform and referred to in recital 2 of this Decision, |
| --- | --- | --- |

(64)

In the light of all these comments, the Commission

—

takes note of the withdrawal of the notification concerning the two support measures notified in relation to the tax dimension of the port reform and referred to in recital 2 of this Decision,

| — | considers that the procedure for transferring port-handling equipment and specific facilities, described in paragraph 16 et seq. of this Decision, which was also the subject of the Commission decision of 8 April 2009 and is set out in recitals 16-25 of this Decision, does not constitute state aid within the meaning of Article 107(1) TFEU. |
| --- | --- |

—

considers that the procedure for transferring port-handling equipment and specific facilities, described in paragraph 16 et seq. of this Decision, which was also the subject of the Commission decision of 8 April 2009 and is set out in recitals 16-25 of this Decision, does not constitute state aid within the meaning of Article 107(1) TFEU.

HAS ADOPTED THIS DECISION:

Article 1

The measure entailing the transfer of port-handling equipment to private operators which France is planning to implement as part of the port reform provided for by Law No 2008-660 of 4 July 2008 does not constitute state aid within the meaning of Article 107(1) of the Treaty on the Functioning of the European Union.

Implementation of the measure is accordingly authorised.

Article 2

This Decision is addressed to the French Republic.

Done at Brussels, 29 June 2011.

For the Commission

Joaquín ALMUNIA

Vice-President

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(1)  
  OJ L 1, 3.1.1994, p. 3.

1

(2)  
  OJ C 122, 30.5.2009, p. 16.

2

(3)  From 1 December 2009, Articles 87 and 88 of the EC Treaty have become Articles 107 and 108 of the Treaty on the Functioning of the European Union (TFEU). The provisions laid down in the respective articles are identical in both cases. For the purposes of this Decision, references to Articles 107 and 108 TFEU should be understood as references to Articles 87 and 88 of the EC Treaty where appropriate.

3

(4)  French Official Gazette (JORF) No 0156, 5.7.2008.

4

(5)  
  OJ C 122, 30.5.2009, p. 16.

5

(6)  Under Law No 2009-1673 of 30 December 2009 on the budget for 2010 (JORF No 0303 of 31 December 2009), a regional business tax was introduced consisting of a land tax on companies and a levy on the added value of companies.

6

(7)  The companies are: Société d’Équipement du Terminal de Normandie (SETN), Générale de Manutention Portuaire (GMP), Compagnie Nouvelle de Manutention portuaire (CNMP) and STMC6.

7

(8)  
  OJ L 379, 28.12.2006, p. 5.

8

(9)  This provision amending Article 1518 A bis of the General Taxation Code on the introduction of local taxes came into force on 1 January 2011 and thus applies from the first year of exemption. The following subparagraph has been added to Article 1518 A bis: ‘Granting of this reduction is subject to compliance with Commission Regulation (EC) No 1998/2006 of 15 December 2006 on the application of Articles 87 and 88 of the Treaty to de minimis aid.’

9

(10)  Law No 2008-660 of 4 July 2008 on port reform (see footnote 4).

10

(11)  Following this reform, sea ports will be classified in two categories: major sea ports (the former autonomous ports) and the other ‘decentralised’ commercial ports under the responsibility of local authorities.

11

(12)  
  ‘I. — The procedure for selling the equipment referred to in Article 7 and transferring the property rights attached to it is as follows: If one or more operators have already invested in the terminal or have, as regular users of the equipment, handled significant traffic at this terminal, the negotiations for the transfer will, at their request, be conducted with them. If there are no operators as defined in paragraph 1, or if the negotiations have not been successfully concluded within 3 months of the adoption of the strategic plan or decision referred to in Article 8, the major sea port must publish an invitation to tender. It must then negotiate freely with the applicants, who must be selected by means of a transparent, non-discriminatory procedure. Following these negotiations, the major sea port chooses the operator and concludes a terminal contract. The contract, equivalent to an authorisation to occupy public property, can contain traffic targets. If the tendering procedure referred to in paragraph 2 proves unfruitful, and if the strategic plan provides for this, the major sea port must entrust the operations to a subsidiary for a period not exceeding 5 years. Following this period, the port must publish a new invitation to tender. If a further invitation proves fruitless, the activity must continue to be performed by the subsidiary, provided that this is set out in the strategic plan. The process must be carried out as many times as is necessary within a period of not more than 5 years each time until the tendering procedure is successful.’

12

(13)  The functioning arrangements of CNECOP are laid down in Articles 6 and 7 of Decree No 2008-1032 of 9 October 2008 implementing the port reform law and applying various provisions on ports.

13

(14)  French Official Gazette (JORF) No 0237, 10.10.2008.

14

(15)  See, for example, the judgment of the Court of Justice in Case C-222/04, Ministero dell’Economia e delle Finanze v Cassa di Risparmio di Firenze (ECR I-289, paragraph 129).

15

(16)  Decree No 2008-1032 of 9 October 2008 implementing Law No 2008-660 of 4 July 2008 implementing the port reform law and applying various provisions on ports.

16

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