# Official Journal L 97/2009

| | ISSN 1725-2555
  doi:10.3000/17252555.L_2009.097.eng |
| --- | --- |
| Official Journal
  of the European Union | L 97 |
| | |
| English edition | Legislation | Volume 5216 April 2009 |

ISSN 1725-2555

doi:10.3000/17252555.L_2009.097.eng

Official Journal

of the European Union

L 97

English edition

Legislation

Volume 5216 April 2009

---

| Contents | | I   Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory | page |
| --- | --- | --- | --- |
| | | REGULATIONS |
| | | Commission Regulation (EC) No 305/2009 of 15 April 2009 establishing the standard import values for determining the entry price of certain fruit and vegetables | 1 |
| | | Commission Regulation (EC) No 306/2009 of 15 April 2009 amending the representative prices and additional import duties for certain products in the sugar sector fixed by Regulation (EC) No 945/2008 for the 2008/2009 marketing year | 3 |
| | | Commission Regulation (EC) No 307/2009 of 15 April 2009 fixing the import duties in the cereals sector applicable from 16 April 2009 | 5 |
| | * | Commission Regulation (EC) No 308/2009 of 15 April 2009 amending, for the purposes of adaptation to scientific and technical progress, Annexes IIIA and VI to Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste (
  1
  ) | 8 |
| | | Commission Regulation (EC) No 309/2009 of 15 April 2009 closing intervention buying-in of skimmed milk powder at fixed price until 31 August 2009 | 12 |
| | | Commission Regulation (EC) No 310/2009 of 15 April 2009 opening the buying-in of skimmed milk powder by a tendering procedure for the period expiring on 31 August 2009 | 13 |

Contents

I   Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory

page

REGULATIONS

Commission Regulation (EC) No 305/2009 of 15 April 2009 establishing the standard import values for determining the entry price of certain fruit and vegetables

1

Commission Regulation (EC) No 306/2009 of 15 April 2009 amending the representative prices and additional import duties for certain products in the sugar sector fixed by Regulation (EC) No 945/2008 for the 2008/2009 marketing year

3

Commission Regulation (EC) No 307/2009 of 15 April 2009 fixing the import duties in the cereals sector applicable from 16 April 2009

5

*

Commission Regulation (EC) No 308/2009 of 15 April 2009 amending, for the purposes of adaptation to scientific and technical progress, Annexes IIIA and VI to Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste (
  1
  )

1

8

Commission Regulation (EC) No 309/2009 of 15 April 2009 closing intervention buying-in of skimmed milk powder at fixed price until 31 August 2009

12

Commission Regulation (EC) No 310/2009 of 15 April 2009 opening the buying-in of skimmed milk powder by a tendering procedure for the period expiring on 31 August 2009

13

| | | II   Acts adopted under the EC Treaty/Euratom Treaty whose publication is not obligatory |
| --- | --- | --- |
| | | DECISIONS |
| | | Commission |
| | | 2009/325/EC |
| | * | Commission Decision of 26 November 2008 on State aid C 3/08 (ex NN 102/05) — Czech Republic concerning public service compensations for Southern Moravia Bus Companies
  (notified under document number C(2008) 7032)

   (
  1
  ) | 14 |

II   Acts adopted under the EC Treaty/Euratom Treaty whose publication is not obligatory

DECISIONS

Commission

2009/325/EC

*

Commission Decision of 26 November 2008 on State aid C 3/08 (ex NN 102/05) — Czech Republic concerning public service compensations for Southern Moravia Bus Companies
  (notified under document number C(2008) 7032)

   (
  1
  )

(notified under document number C(2008) 7032)

1

14

| | | III   Acts adopted under the EU Treaty |
| --- | --- | --- |
| | | ACTS ADOPTED UNDER TITLE VI OF THE EU TREATY |
| | * | Declaration for the purposes of Article 8(3) of Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial | 26 |

III   Acts adopted under the EU Treaty

ACTS ADOPTED UNDER TITLE VI OF THE EU TREATY

*

Declaration for the purposes of Article 8(3) of Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial

26

| | | Corrigenda |
| --- | --- | --- |
| | * | Corrigendum to Council Regulation (EC) No 261/2008 of 17 March 2008 imposing a definitive anti-dumping duty on imports of certain compressors originating in the People’s Republic of China ( OJ L 81, 20.3.2008 ) | 27 |

Corrigenda

*

Corrigendum to Council Regulation (EC) No 261/2008 of 17 March 2008 imposing a definitive anti-dumping duty on imports of certain compressors originating in the People’s Republic of China ( OJ L 81, 20.3.2008 )

27

| | |
| --- | --- |
| | (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.

---

I Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory

REGULATIONS

| 16.4.2009 | EN | Official Journal of the European Union | L 97/1 |
| --- | --- | --- | --- |

16.4.2009

EN

Official Journal of the European Union

L 97/1

---

COMMISSION REGULATION (EC) No 305/2009

of 15 April 2009

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

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

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 Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules for Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (2), and in particular Article 138(1) thereof,

Whereas:

Regulation (EC) No 1580/2007 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 XV, Part A thereto,

HAS ADOPTED THIS REGULATION:

Article 1

The standard import values referred to in Article 138 of Regulation (EC) No 1580/2007 are fixed in the Annex hereto.

Article 2

This Regulation shall enter into force on 16 April 2009.

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

Done at Brussels, 15 April 2009.

For the Commission

Jean-Luc DEMARTY

Director-General for Agriculture and Rural Development

---

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

1

(2)  
  OJ L 350, 31.12.2007, 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 | JO | 93,2 |
| MA | 78,8 |
| TN | 137,2 |
| TR | 109,4 |
| ZZ | 104,7 |
| 0707 00 05 | MA | 51,1 |
| TR | 150,4 |
| ZZ | 100,8 |
| 0709 90 70 | MA | 54,2 |
| TR | 102,2 |
| ZZ | 78,2 |
| 0805 10 20 | EG | 45,2 |
| IL | 62,1 |
| MA | 40,2 |
| TN | 47,5 |
| TR | 69,3 |
| ZZ | 52,9 |
| 0805 50 10 | TR | 47,7 |
| ZZ | 47,7 |
| 0808 10 80 | AR | 85,8 |
| BR | 74,3 |
| CA | 89,6 |
| CL | 73,7 |
| CN | 80,7 |
| MK | 22,1 |
| NZ | 117,5 |
| US | 130,0 |
| UY | 40,3 |
| ZA | 83,1 |
| ZZ | 79,7 |
| 0808 20 50 | AR | 74,1 |
| CL | 106,4 |
| CN | 64,3 |
| ZA | 93,2 |
| ZZ | 84,5 |

(EUR/100 kg)

CN code

Third country code (1)

Standard import value

0702 00 00

JO

93,2

MA

78,8

TN

137,2

TR

109,4

ZZ

104,7

0707 00 05

MA

51,1

TR

150,4

ZZ

100,8

0709 90 70

MA

54,2

TR

102,2

ZZ

78,2

0805 10 20

EG

45,2

IL

62,1

MA

40,2

TN

47,5

TR

69,3

ZZ

52,9

0805 50 10

TR

47,7

ZZ

47,7

0808 10 80

AR

85,8

BR

74,3

CA

89,6

CL

73,7

CN

80,7

MK

22,1

NZ

117,5

US

130,0

UY

40,3

ZA

83,1

ZZ

79,7

0808 20 50

AR

74,1

CL

106,4

CN

64,3

ZA

93,2

ZZ

84,5

---

(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’.

---

| 16.4.2009 | EN | Official Journal of the European Union | L 97/3 |
| --- | --- | --- | --- |

16.4.2009

EN

Official Journal of the European Union

L 97/3

---

COMMISSION REGULATION (EC) No 306/2009

of 15 April 2009

amending the representative prices and additional import duties for certain products in the sugar sector fixed by Regulation (EC) No 945/2008 for the 2008/2009 marketing year

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

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 Regulation (EC) No 951/2006 of 30 June 2006 laying down detailed rules for the implementation of Council Regulation (EC) No 318/2006 as regards trade with third countries in the sugar sector (2), and in particular Article 36(2), second subparagraph, second sentence thereof,

Whereas:

| (1) | The representative prices and additional duties applicable to imports of white sugar, raw sugar and certain syrups for the 2008/2009 marketing year are fixed by Commission Regulation (EC) No 945/2008 (3). These prices and duties have been last amended by Commission Regulation (EC) No 253/2009 (4). |
| --- | --- |

(1)

The representative prices and additional duties applicable to imports of white sugar, raw sugar and certain syrups for the 2008/2009 marketing year are fixed by Commission Regulation (EC) No 945/2008 (3). These prices and duties have been last amended by Commission Regulation (EC) No 253/2009 (4).

| (2) | The data currently available to the Commission indicate that those amounts should be amended in accordance with the rules and procedures laid down in Regulation (EC) No 951/2006, |
| --- | --- |

(2)

The data currently available to the Commission indicate that those amounts should be amended in accordance with the rules and procedures laid down in Regulation (EC) No 951/2006,

HAS ADOPTED THIS REGULATION:

Article 1

The representative prices and additional duties applicable to imports of the products referred to in Article 36 of Regulation (EC) No 951/2006, as fixed by Regulation (EC) No 945/2008 for the 2008/2009, marketing year, are hereby amended as set out in the Annex hereto.

Article 2

This Regulation shall enter into force on 16 April 2009.

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

Done at Brussels, 15 April 2009.

For the Commission

Jean-Luc DEMARTY

Director-General for Agriculture and Rural Development

---

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

1

(2)  
  OJ L 178, 1.7.2006, p. 24.

2

(3)  
  OJ L 258, 26.9.2008, p. 56.

3

(4)  
  OJ L 80, 26.3.2009, p. 3.

4

---

ANNEX

Amended representative prices and additional import duties applicable to white sugar, raw sugar and products covered by CN code 1702 90 95 from 16 April 2009

| (EUR) |
| --- |
| CN code | Representative price per 100 kg net of the product concerned | Additional duty per 100 kg net of the product concerned |
| 1701 11 10  (1) | 25,96 | 3,50 |
| 1701 11 90  (1) | 25,96 | 8,55 |
| 1701 12 10  (1) | 25,96 | 3,36 |
| 1701 12 90  (1) | 25,96 | 8,12 |
| 1701 91 00  (2) | 29,52 | 10,47 |
| 1701 99 10  (2) | 29,52 | 5,95 |
| 1701 99 90  (2) | 29,52 | 5,95 |
| 1702 90 95  (3) | 0,30 | 0,35 |

(EUR)

CN code

Representative price per 100 kg net of the product concerned

Additional duty per 100 kg net of the product concerned

1701 11 10  (1)

25,96

3,50

1701 11 90  (1)

25,96

8,55

1701 12 10  (1)

25,96

3,36

1701 12 90  (1)

25,96

8,12

1701 91 00  (2)

29,52

10,47

1701 99 10  (2)

29,52

5,95

1701 99 90  (2)

29,52

5,95

1702 90 95  (3)

0,30

0,35

---

(1)  For the standard quality defined in point III of Annex IV to Regulation (EC) No 1234/2007.

(2)  For the standard quality defined in point II of Annex IV to Regulation (EC) No 1234/2007.

(3)  Per 1 % sucrose content.

---

| 16.4.2009 | EN | Official Journal of the European Union | L 97/5 |
| --- | --- | --- | --- |

16.4.2009

EN

Official Journal of the European Union

L 97/5

---

COMMISSION REGULATION (EC) No 307/2009

of 15 April 2009

fixing the import duties in the cereals sector applicable from 16 April 2009

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

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 Regulation (EC) No 1249/96 of 28 June 1996 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 in respect of import duties in the cereals sector (2), and in particular Article 2(1) thereof,

Whereas:

| (1) | Article 136(1) of Regulation (EC) No 1234/2007 states that the import duty on products falling within CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002, ex 1005 other than hybrid seed, and ex 1007 other than hybrids for sowing, is to be equal to the intervention price valid for such products on importation increased by 55 %, minus the cif import price applicable to the consignment in question. However, that duty may not exceed the rate of duty in the Common Customs Tariff. |
| --- | --- |

(1)

Article 136(1) of Regulation (EC) No 1234/2007 states that the import duty on products falling within CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002, ex 1005 other than hybrid seed, and ex 1007 other than hybrids for sowing, is to be equal to the intervention price valid for such products on importation increased by 55 %, minus the cif import price applicable to the consignment in question. However, that duty may not exceed the rate of duty in the Common Customs Tariff.

| (2) | Article 136(2) of Regulation (EC) No 1234/2007 lays down that, for the purposes of calculating the import duty referred to in paragraph 1 of that Article, representative cif import prices are to be established on a regular basis for the products in question. |
| --- | --- |

(2)

Article 136(2) of Regulation (EC) No 1234/2007 lays down that, for the purposes of calculating the import duty referred to in paragraph 1 of that Article, representative cif import prices are to be established on a regular basis for the products in question.

| (3) | Under Article 2(2) of Regulation (EC) No 1249/96, the price to be used for the calculation of the import duty on products of CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002 00, 1005 10 90, 1005 90 00 and 1007 00 90 is the daily cif representative import price determined as specified in Article 4 of that Regulation. |
| --- | --- |

(3)

Under Article 2(2) of Regulation (EC) No 1249/96, the price to be used for the calculation of the import duty on products of CN codes 1001 10 00, 1001 90 91, ex 1001 90 99 (high quality common wheat), 1002 00, 1005 10 90, 1005 90 00 and 1007 00 90 is the daily cif representative import price determined as specified in Article 4 of that Regulation.

| (4) | Import duties should be fixed for the period from 16 April 2009 and should apply until new import duties are fixed and enter into force, |
| --- | --- |

(4)

Import duties should be fixed for the period from 16 April 2009 and should apply until new import duties are fixed and enter into force,

HAS ADOPTED THIS REGULATION:

Article 1

From 16 April 2009, the import duties in the cereals sector referred to in Article 136(1) of Regulation (EC) No 1234/2007 shall be those fixed in Annex I to this Regulation on the basis of the information contained in Annex II.

Article 2

This Regulation shall enter into force on 16 April 2009.

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

Done at Brussels, 15 April 2009.

For the Commission

Jean-Luc DEMARTY

Director-General for Agriculture and Rural Development

---

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

1

(2)  
  OJ L 161, 29.6.1996, p. 125.

2

---

ANNEX I

Import duties on the products referred to in Article 136(1) of Regulation (EC) No 1234/2007 applicable from 16 April 2009

| CN code | Description | Import duties (1)

  (EUR/t) |
| --- | --- | --- |
| 1001 10 00 | Durum wheat, high quality | 0,00 |
| medium quality | 0,00 |
| low quality | 0,00 |
| 1001 90 91 | Common wheat seed | 0,00 |
| ex 1001 90 99 | High quality common wheat, other than for sowing | 0,00 |
| 1002 00 00 | Rye | 40,96 |
| 1005 10 90 | Maize seed other than hybrid | 16,50 |
| 1005 90 00 | Maize, other than seed (2) | 16,50 |
| 1007 00 90 | Grain sorghum other than hybrids for sowing | 40,96 |

CN code

Description

Import duties (1)

(EUR/t)

1001 10 00

Durum wheat, high quality

0,00

medium quality

0,00

low quality

0,00

1001 90 91

Common wheat seed

0,00

ex 1001 90 99

High quality common wheat, other than for sowing

0,00

1002 00 00

Rye

40,96

1005 10 90

Maize seed other than hybrid

16,50

1005 90 00

Maize, other than seed (2)

16,50

1007 00 90

Grain sorghum other than hybrids for sowing

40,96

---

(1)  For goods arriving in the Community via the Atlantic Ocean or via the Suez Canal the importer may benefit, under Article 2(4) of Regulation (EC) No 1249/96, from a reduction in the duty of:

| — | 3 EUR/t, where the port of unloading is on the Mediterranean Sea, or |
| --- | --- |

—

3 EUR/t, where the port of unloading is on the Mediterranean Sea, or

| — | 2 EUR/t, where the port of unloading is in Denmark, Estonia, Ireland, Latvia, Lithuania, Poland, Finland, Sweden, the United Kingdom or the Atlantic coast of the Iberian peninsula. |
| --- | --- |

—

2 EUR/t, where the port of unloading is in Denmark, Estonia, Ireland, Latvia, Lithuania, Poland, Finland, Sweden, the United Kingdom or the Atlantic coast of the Iberian peninsula.

(2)  The importer may benefit from a flatrate reduction of EUR 24 per tonne where the conditions laid down in Article 2(5) of Regulation (EC) No 1249/96 are met.

---

ANNEX II

Factors for calculating the duties laid down in Annex I

31.3.2009-14.4.2009

| 1. | Averages over the reference period referred to in Article 2(2) of Regulation (EC) No 1249/96:











  (EUR/t) |
| --- | --- |
| | Common wheat (1) | Maize | Durum wheat, high quality | Durum wheat, medium quality (2) | Durum wheat, low quality (3) | Barley |
| Exchange | Minnéapolis | Chicago | — | — | — | — |
| Quotation | 193,53 | 117,77 | — | — | — | — |
| Fob price USA | — | — | 198,92 | 188,92 | 168,92 | 104,60 |
| Gulf of Mexico premium | — | 12,55 | — | — | — | — |
| Great Lakes premium | 19,32 | — | — | — | — | — |

1.

(EUR/t)

Common wheat (1)

Maize

Durum wheat, high quality

Durum wheat, medium quality (2)

Durum wheat, low quality (3)

Barley

Exchange

Minnéapolis

Chicago

—

—

—

—

Quotation

193,53

117,77

—

—

—

—

Fob price USA

—

—

198,92

188,92

168,92

104,60

Gulf of Mexico premium

—

12,55

—

—

—

—

Great Lakes premium

19,32

—

—

—

—

—

| 2. | Averages over the reference period referred to in Article 2(2) of Regulation (EC) No 1249/96:






  Freight costs: Gulf of Mexico–Rotterdam: | 14,48  EUR/t |
| --- | --- | --- |
| Freight costs: Great Lakes–Rotterdam: | 15,75  EUR/t |

2.

Freight costs: Gulf of Mexico–Rotterdam:

14,48  EUR/t

Freight costs: Great Lakes–Rotterdam:

15,75  EUR/t

---

(1)  Premium of 14 EUR/t incorporated (Article 4(3) of Regulation (EC) No 1249/96).

(2)  Discount of 10 EUR/t (Article 4(3) of Regulation (EC) No 1249/96).

(3)  Discount of 30 EUR/t (Article 4(3) of Regulation (EC) No 1249/96).

---

| 16.4.2009 | EN | Official Journal of the European Union | L 97/8 |
| --- | --- | --- | --- |

16.4.2009

EN

Official Journal of the European Union

L 97/8

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COMMISSION REGULATION (EC) No 308/2009

of 15 April 2009

amending, for the purposes of adaptation to scientific and technical progress, Annexes IIIA and VI to Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

Having regard to Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (1), and in particular Article 58(1) thereof,

Whereas:

| (1) | The agreement reached at the eighth meeting of the Conference of the Parties to the Basel Convention on the control of Transboundary Movements of Hazardous Wastes and their Disposal, which took place from 27 November to 1 December 2006, requires an amendment of Annex VI to Regulation (EC) No 1013/2006 on shipments of waste. The amendment concerns the replacement of ‘kg’ and ‘litre’ by ‘Tonnes (Mg)’ for the total pre-consented quantity of waste and results in consistency with the units provided in Annexes IA, IB and VII to that Regulation. |
| --- | --- |

(1)

The agreement reached at the eighth meeting of the Conference of the Parties to the Basel Convention on the control of Transboundary Movements of Hazardous Wastes and their Disposal, which took place from 27 November to 1 December 2006, requires an amendment of Annex VI to Regulation (EC) No 1013/2006 on shipments of waste. The amendment concerns the replacement of ‘kg’ and ‘litre’ by ‘Tonnes (Mg)’ for the total pre-consented quantity of waste and results in consistency with the units provided in Annexes IA, IB and VII to that Regulation.

| (2) | In addition Member States, pursuant to Article 58(1)(c) of Regulation (EC) No 1013/2006, submitted on 29 February 2008, 10 March 2008, 17 March 2008 and 29 April 2008 requests to the Commission for mixtures of two or more wastes listed in Annex III to be considered for inclusion in Annex IIIA. |
| --- | --- |

(2)

In addition Member States, pursuant to Article 58(1)(c) of Regulation (EC) No 1013/2006, submitted on 29 February 2008, 10 March 2008, 17 March 2008 and 29 April 2008 requests to the Commission for mixtures of two or more wastes listed in Annex III to be considered for inclusion in Annex IIIA.

| (3) | The correspondents, designated pursuant to Article 54 of Regulation (EC) No 1013/2006, agreed at a meeting held in accordance with Article 57 of that Regulation to submit with each request for inclusion of mixtures in Annex IIIA certain information in order to enable an assessment of the mixtures concerned. That information has been subject to an assessment in accordance with Regulation (EC) No 1013/2006. |
| --- | --- |

(3)

The correspondents, designated pursuant to Article 54 of Regulation (EC) No 1013/2006, agreed at a meeting held in accordance with Article 57 of that Regulation to submit with each request for inclusion of mixtures in Annex IIIA certain information in order to enable an assessment of the mixtures concerned. That information has been subject to an assessment in accordance with Regulation (EC) No 1013/2006.

| (4) | The concept of environmentally sound management of waste includes the use of techniques and technologies capable of reducing environmental damage through processes and materials that generate fewer potentially damaging substances and recover such substances from emissions prior to discharge, or utilise and recycle production residues. OECD-Decision countries are bound to ensure that their recovery facilities use advanced techniques to recover waste. Advanced recovery techniques are essential when mixtures of waste include heterogeneous wastes such as slags from precious metals and copper processing. It is not guaranteed that countries to which the OECD Decision does not apply meet these standards. Therefore, mixtures of waste, including slags from precious metals and copper processing which are classified under (OECD) entry GB040 in Annex IIIA should not apply to countries to which the OECD Decision does not apply. |
| --- | --- |

(4)

The concept of environmentally sound management of waste includes the use of techniques and technologies capable of reducing environmental damage through processes and materials that generate fewer potentially damaging substances and recover such substances from emissions prior to discharge, or utilise and recycle production residues. OECD-Decision countries are bound to ensure that their recovery facilities use advanced techniques to recover waste. Advanced recovery techniques are essential when mixtures of waste include heterogeneous wastes such as slags from precious metals and copper processing. It is not guaranteed that countries to which the OECD Decision does not apply meet these standards. Therefore, mixtures of waste, including slags from precious metals and copper processing which are classified under (OECD) entry GB040 in Annex IIIA should not apply to countries to which the OECD Decision does not apply.

| (5) | Annexes IIIA and VI to Regulation (EC) No 1013/2006 should therefore be amended accordingly. |
| --- | --- |

(5)

Annexes IIIA and VI to Regulation (EC) No 1013/2006 should therefore be amended accordingly.

| (6) | It may be appropriate to review the list of mixtures of waste of Annex IIIA, and in particular the entries not applicable to countries to which the OECD Decision does not apply, taking into account information received from these countries pertaining to the technological capacity to recover waste as well as the environmentally sound management of waste. |
| --- | --- |

(6)

It may be appropriate to review the list of mixtures of waste of Annex IIIA, and in particular the entries not applicable to countries to which the OECD Decision does not apply, taking into account information received from these countries pertaining to the technological capacity to recover waste as well as the environmentally sound management of waste.

| (7) | The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 18 of Directive 2006/12/EC of the European Parliament and of the Council (2), |
| --- | --- |

(7)

The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 18 of Directive 2006/12/EC of the European Parliament and of the Council (2),

HAS ADOPTED THIS REGULATION:

Article 1

Annexes IIIA and VI to Regulation (EC) No 1013/2006 are replaced by the text set out in the Annex to this Regulation.

Article 2

Annex IIIA shall be reviewed, if appropriate, within 12 months after the entry into force of this Regulation, in particular to take account of information received from countries to which the OECD Decision does not apply as regards their technological capacity to recover waste and of evidence that the management of waste takes place under conditions equivalent to those in the countries to which the OECD Decision applies.

Article 3

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

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

Done at Brussels, 15 April 2009.

For the Commission

Stavros DIMAS

Member of the Commission

---

(1)  
  OJ L 190, 12.7.2006, p. 1.

1

(2)  
  OJ L 114, 27.4.2006, p. 9.

2

---

ANNEX

1.

‘ANNEX IIIA

MIXTURES OF TWO OR MORE WASTES LISTED IN ANNEX III AND NOT CLASSIFIED UNDER ONE SINGLE ENTRY AS REFERRED TO IN ARTICLE 3(2)

| 1. | Regardless of whether or not mixtures are included on this list, they may not be subject to the general information requirements laid down in Article 18 if they are contaminated by other materials to an extent which:






  (a) | increases the risks associated with the wastes sufficiently to render them appropriate for submission to the procedure of prior written notification and consent, when taking into account the hazardous characteristics listed in Annex III to Directive 91/689/EEC; or |
| --- | --- | --- |

1.

(a)

increases the risks associated with the wastes sufficiently to render them appropriate for submission to the procedure of prior written notification and consent, when taking into account the hazardous characteristics listed in Annex III to Directive 91/689/EEC; or

| (b) | prevents the recovery of the wastes in an environmentally sound manner. |
| --- | --- |

(b)

prevents the recovery of the wastes in an environmentally sound manner.

| 2. | The following mixtures of waste are included in this Annex:






  (a) | mixtures of waste classified under Basel entries B1010 and B1050; |
| --- | --- | --- |

2.

(a)

mixtures of waste classified under Basel entries B1010 and B1050;

| (b) | mixtures of waste classified under Basel entries B1010 and B1070; |
| --- | --- |

(b)

mixtures of waste classified under Basel entries B1010 and B1070;

| (c) | mixtures of waste classified under (OECD) entry GB040 and under Basel entry B1100 restricted to hard zinc spelter, zinc-containing drosses, aluminium skimmings (or skims) excluding salt slag and wastes of refractory linings, including crucibles, originating from copper smelting; |
| --- | --- |

(c)

mixtures of waste classified under (OECD) entry GB040 and under Basel entry B1100 restricted to hard zinc spelter, zinc-containing drosses, aluminium skimmings (or skims) excluding salt slag and wastes of refractory linings, including crucibles, originating from copper smelting;

| (d) | mixtures of waste classified under (OECD) entry GB040, under Basel entry B1070 and under Basel entry B1100 restricted to wastes of refractory linings, including crucibles, originating from copper smelting. |
| --- | --- |

(d)

mixtures of waste classified under (OECD) entry GB040, under Basel entry B1070 and under Basel entry B1100 restricted to wastes of refractory linings, including crucibles, originating from copper smelting.

The entries referred to in points (c) and (d) shall not apply for exports to countries to which the OECD Decision does not apply.’;

2.

‘ANNEX VI

FORM FOR PRE-CONSENTED FACILITIES (ARTICLE 14)

| Competent authority | Recovery facility | Waste identification | Period of validity | Total pre-consented quantity |
| --- | --- | --- | --- | --- |
| Name and number of the recovery facility | Address | Recovery operation
  (+ R-code) | Technologies employed | (code) | from | to | (tonnes (Mg))’ |
| | | | | | | | | |
| | | | | | | | | |
| | | | | | | | | |

Competent authority

Recovery facility

Waste identification

Period of validity

Total pre-consented quantity

Name and number of the recovery facility

Address

Recovery operation

(+ R-code)

Technologies employed

(code)

from

to

(tonnes (Mg))’

---

| 16.4.2009 | EN | Official Journal of the European Union | L 97/12 |
| --- | --- | --- | --- |

16.4.2009

EN

Official Journal of the European Union

L 97/12

---

COMMISSION REGULATION (EC) No 309/2009

of 15 April 2009

closing intervention buying-in of skimmed milk powder at fixed price until 31 August 2009

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

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 Regulation (EC) No 214/2001 of 12 January 2001 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in skimmed-milk powder (2), and in particular the Article 9a(3) thereof,

Whereas:

| (1) | On the basis of the communications submitted by Member States on 15 April 2009 in accordance with Article 9a(1) and (2) of Regulation (EC) No 214/2001, the total quantity of skimmed milk powder offered for intervention at fixed price since 1 March 2009 has exceeded the limit of 109 000 tonnes fixed in Article 13 of Regulation (EC) No 1234/2007. Therefore, the intervention buying-in of skimmed milk powder at fixed price has to be closed until 31 August 2009, a single percentage has to be fixed for the quantities received by the competent authorities of the Member States on 14 April 2009 and the offers received by the competent authorities of the Member States on and after 15 April 2009 have to be rejected. |
| --- | --- |

(1)

On the basis of the communications submitted by Member States on 15 April 2009 in accordance with Article 9a(1) and (2) of Regulation (EC) No 214/2001, the total quantity of skimmed milk powder offered for intervention at fixed price since 1 March 2009 has exceeded the limit of 109 000 tonnes fixed in Article 13 of Regulation (EC) No 1234/2007. Therefore, the intervention buying-in of skimmed milk powder at fixed price has to be closed until 31 August 2009, a single percentage has to be fixed for the quantities received by the competent authorities of the Member States on 14 April 2009 and the offers received by the competent authorities of the Member States on and after 15 April 2009 have to be rejected.

| (2) | In accordance with Article 2(6) of Regulation (EC) No 214/2001 the skimmed milk powder offered for intervention has to be put up in bags of a net weight of 25 kg net. Therefore, quantities of skimmed milk powder which have been multiplied by a single percentage should be rounded down to the closest multiple of 25 kg. |
| --- | --- |

(2)

In accordance with Article 2(6) of Regulation (EC) No 214/2001 the skimmed milk powder offered for intervention has to be put up in bags of a net weight of 25 kg net. Therefore, quantities of skimmed milk powder which have been multiplied by a single percentage should be rounded down to the closest multiple of 25 kg.

| (3) | Intervention agencies have to notify sellers swiftly following publication of the single percentage and the closing of buying-in at fixed price. This Regulation should therefore enter into force on the day of its publication in the Official Journal of the European Union, |
| --- | --- |

(3)

Intervention agencies have to notify sellers swiftly following publication of the single percentage and the closing of buying-in at fixed price. This Regulation should therefore enter into force on the day of its publication in the Official Journal of the European Union,

HAS ADOPTED THIS REGULATION:

Article 1

The intervention buying-in of skimmed milk powder at fixed price is hereby closed until 31 August 2009.

The total quantity of the offers of skimmed milk powder for intervention which were received from each seller by the competent authorities of the Member States in accordance with Article 9a(2) of Regulation (EC) No 214/2001, on 14 April 2009 shall be accepted, multiplied by a single percentage of 64,2749 % and then rounded down to the closest multiple of 25 kg.

Offers received by the competent authorities of the Member States on and after 15 April 2009 until 31 August 2009 shall be rejected.

Article 2

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

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

Done at Brussels, 15 April 2009.

For the Commission

Jean-Luc DEMARTY

Director-General for Agriculture and Rural Development

---

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

1

(2)  
  OJ L 37, 7.2.2001, p. 100.

2

---

| 16.4.2009 | EN | Official Journal of the European Union | L 97/13 |
| --- | --- | --- | --- |

16.4.2009

EN

Official Journal of the European Union

L 97/13

---

COMMISSION REGULATION (EC) No 310/2009

of 15 April 2009

opening the buying-in of skimmed milk powder by a tendering procedure for the period expiring on 31 August 2009

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community,

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), and in particular Article 13(3), and Article 18(2)(e), in conjunction with Article 4 thereof,

Whereas:

| (1) | Commission Regulation (EC) No 309/2009 (2) has closed on 15 April 2009 the intervention buying-in of skimmed milk powder at fixed price open for the period 1 March to 31 August 2009 because the offers have exceeded the quantity 109 000 tonnes set out in Article 13(1)(d) of Regulation (EC) No 1234/2007. |
| --- | --- |

(1)

Commission Regulation (EC) No 309/2009 (2) has closed on 15 April 2009 the intervention buying-in of skimmed milk powder at fixed price open for the period 1 March to 31 August 2009 because the offers have exceeded the quantity 109 000 tonnes set out in Article 13(1)(d) of Regulation (EC) No 1234/2007.

| (2) | In order to continue to support the skimmed milk powder market, a tendering procedure should be opened. |
| --- | --- |

(2)

In order to continue to support the skimmed milk powder market, a tendering procedure should be opened.

| (3) | Article 13 of Commission Regulation (EC) No 214/2001 (3) lays down rules to be followed when the Commission decides that the buying-in is to take place under a tendering procedure. |
| --- | --- |

(3)

Article 13 of Commission Regulation (EC) No 214/2001 (3) lays down rules to be followed when the Commission decides that the buying-in is to take place under a tendering procedure.

| (4) | In view of the special situation on the dairy market and in order that the system is more efficient, it is appropriate to increase, by way of derogation, the frequency of the tenders to twice a month. |
| --- | --- |

(4)

In view of the special situation on the dairy market and in order that the system is more efficient, it is appropriate to increase, by way of derogation, the frequency of the tenders to twice a month.

| (5) | In order to be able to start buying-in of skimmed milk powder by a tendering procedure without delay after the closure of the intervention buying-in at fixed price, this Regulation should enter into force as soon as possible. |
| --- | --- |

(5)

In order to be able to start buying-in of skimmed milk powder by a tendering procedure without delay after the closure of the intervention buying-in at fixed price, this Regulation should enter into force as soon as possible.

| (6) | The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for the Common Organisation of Agricultural Markets, |
| --- | --- |

(6)

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

HAS ADOPTED THIS REGULATION:

Article 1

Buying-in of skimmed milk powder by a tendering procedure, in excess of the limit set out in Article 13(1) of Regulation (EC) No 1234/2007, is open until 31 August 2009, under the conditions provided for in Section 4 of Chapter II of Regulation (EC) No 214/2001 and in this Regulation.

Article 2

By way of derogation from Article 14(2) of Regulation (EC) No 214/2001, the time limit for the submission of tenders in response to the individual invitations to tender shall be 11.00 (Brussels time) on the first and third Tuesday of the month.

However, in August it shall be 11.00 (Brussels time) on the fourth Tuesday. If Tuesday is a public holiday the time limit shall be 11.00 (Brussels time) on the previous working day.

Article 3

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

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

Done at Brussels, 15 April 2009.

For the Commission

Jean-Luc DEMARTY

Director-General for Agriculture and Rural Development

---

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

1

(2)  
  OJ L 97, 16.4.2009, p. 12.

2

(3)  
  OJ L 37, 7.2.2001, p. 100.

3

---

II Acts adopted under the EC Treaty/Euratom Treaty whose publication is not obligatory

DECISIONS

Commission

| 16.4.2009 | EN | Official Journal of the European Union | L 97/14 |
| --- | --- | --- | --- |

16.4.2009

EN

Official Journal of the European Union

L 97/14

---

COMMISSION DECISION

of 26 November 2008

on State aid C 3/08 (ex NN 102/05) — Czech Republic concerning public service compensations for Southern Moravia Bus Companies

(notified under document number C(2008) 7032)

(Only the Czech text is authentic)

(Text with EEA relevance)

(2009/325/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,

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

Having regard to Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1), and in particular Article 6(1) and Article 14 thereof,

Having called on interested third parties to submit their comments pursuant to the provisions cited above (2),

Whereas:

1.   PROCEDURE

PROCEDURE

| (1) | By letter dated 28 June 2005 the Commission received a complaint from the Czech company ČAS — SERVICE a.s. (the Complainant). The complaint concerned State aid allegedly granted to various competitors of the Complainant by regional authorities between 2003 and 2005. |
| --- | --- |

(1)

By letter dated 28 June 2005 the Commission received a complaint from the Czech company ČAS — SERVICE a.s. (the Complainant). The complaint concerned State aid allegedly granted to various competitors of the Complainant by regional authorities between 2003 and 2005.

| (2) | By letters of 20 July 2005, 14 March 2006 and 7 December 2006, the Commission requested from the Czech authorities further information with regard to issues raised by the Complainant. |
| --- | --- |

(2)

By letters of 20 July 2005, 14 March 2006 and 7 December 2006, the Commission requested from the Czech authorities further information with regard to issues raised by the Complainant.

| (3) | The Czech authorities replied on 14 September 2005, 2 June 2006, 6 February 2007 and 18 October 2007. |
| --- | --- |

(3)

The Czech authorities replied on 14 September 2005, 2 June 2006, 6 February 2007 and 18 October 2007.

| (4) | By letter dated 15 January 2008, the Commission informed the Czech authorities of the decision to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the aid. The Czech authorities provided their comments on the aid by letter dated 18 February 2008. |
| --- | --- |

(4)

By letter dated 15 January 2008, the Commission informed the Czech authorities of the decision to initiate the procedure laid down in Article 88(2) of the EC Treaty in respect of the aid. The Czech authorities provided their comments on the aid by letter dated 18 February 2008.

| (5) | The Commission decision to initiate the procedure was published in the Official Journal of the European Union on 16 February 2008 (3). The Commission invited any interested parties to submit their comments on the aid. |
| --- | --- |

(5)

The Commission decision to initiate the procedure was published in the Official Journal of the European Union on 16 February 2008 (3). The Commission invited any interested parties to submit their comments on the aid.

Official Journal of the European Union

3

| (6) | On 14 March 2008, the Commission received comments from the Complainant as third party. On 17 April 2008, these comments were transmitted to the Czech authorities, which were invited to comment on the standpoints of the third party. On 13 May 2008, the Czech authorities requested an extension of the deadline for submitting their comments, on which the Commission agreed. On 17 June 2008, the Czech authorities submitted their observations on the third-party comments. |
| --- | --- |

(6)

On 14 March 2008, the Commission received comments from the Complainant as third party. On 17 April 2008, these comments were transmitted to the Czech authorities, which were invited to comment on the standpoints of the third party. On 13 May 2008, the Czech authorities requested an extension of the deadline for submitting their comments, on which the Commission agreed. On 17 June 2008, the Czech authorities submitted their observations on the third-party comments.

2.   DETAILED DESCRIPTION

DETAILED DESCRIPTION

| (7) | The Complainant is a joint-stock company active in the field of regular bus transport, chartered transport, city bus transport in Znojmo territory and international transport. |
| --- | --- |

(7)

The Complainant is a joint-stock company active in the field of regular bus transport, chartered transport, city bus transport in Znojmo territory and international transport.

| (8) | Until September 2004, operation of the regional public bus transport in Southern Moravia was the core activity of the Complainant, particularly on the basis of contracts concluded with the regional authorities. The services were provided in the Southern Moravia Region (Znojmo and Moravsky Krumlov Districts). |
| --- | --- |

(8)

Until September 2004, operation of the regional public bus transport in Southern Moravia was the core activity of the Complainant, particularly on the basis of contracts concluded with the regional authorities. The services were provided in the Southern Moravia Region (Znojmo and Moravsky Krumlov Districts).

| (9) | The Complainant alleges that the Southern Moravia authorities granted, in the period between 2003 and 2005, illegal State aid to Bítešská Dopravní Společnost s.r.o. (Bítešská), BK Bus s.r.o. (BK Bus), Břežanská dopravní společnost s.r.o. (Břežanská společnost), Znojemská dopravnì společnost — PSOTA s.r.o. (PSOTA), Tredos, spol. s.r.o. (Tredos). This would be the consequence of a grant of licences that would be neither transparent nor objective. |
| --- | --- |

(9)

The Complainant alleges that the Southern Moravia authorities granted, in the period between 2003 and 2005, illegal State aid to Bítešská Dopravní Společnost s.r.o. (Bítešská), BK Bus s.r.o. (BK Bus), Břežanská dopravní společnost s.r.o. (Břežanská společnost), Znojemská dopravnì společnost — PSOTA s.r.o. (PSOTA), Tredos, spol. s.r.o. (Tredos). This would be the consequence of a grant of licences that would be neither transparent nor objective.

| (10) | According to the Czech authorities the licence constitutes a permit granted by the authorities to operate a regular public transport service. The aim of the licence is to guarantee that bus transport will be conducted only by carriers who meet certain quality requirements. In this respect, according to Paragraph 18 of Law No 111/1994 Coll. on the road transport (the Road Transport Law) (4) these requirements comprise in particular the obligation to provide services in accordance with the approved timetable, to ensure a certain level of safety for passengers and to publish timetables and mark buses with the names of the lines. |
| --- | --- |

(10)

According to the Czech authorities the licence constitutes a permit granted by the authorities to operate a regular public transport service. The aim of the licence is to guarantee that bus transport will be conducted only by carriers who meet certain quality requirements. In this respect, according to Paragraph 18 of Law No 111/1994 Coll. on the road transport (the Road Transport Law) (4) these requirements comprise in particular the obligation to provide services in accordance with the approved timetable, to ensure a certain level of safety for passengers and to publish timetables and mark buses with the names of the lines.

4

| (11) | The provision of Paragraph 19 of the Road Transport Law stipulates that the public service obligation is understood as ‘the obligation by the carrier in the public interest which the carrier would otherwise not accept at all or partially due to its economic disadvantage. The public service obligation is agreed by the government with the carrier and the government shall also settle the provable loss to the carrier arisen by its fulfilment. The public service obligation consists in the obligation to operate (...), the obligation of the transport (...), the tariff obligation (...). The public service obligation in the public line transport arises on the basis of a written contract’ (concluded between the relevant authorities and the operator) (5). |
| --- | --- |

(11)

The provision of Paragraph 19 of the Road Transport Law stipulates that the public service obligation is understood as ‘the obligation by the carrier in the public interest which the carrier would otherwise not accept at all or partially due to its economic disadvantage. The public service obligation is agreed by the government with the carrier and the government shall also settle the provable loss to the carrier arisen by its fulfilment. The public service obligation consists in the obligation to operate (...), the obligation of the transport (...), the tariff obligation (...). The public service obligation in the public line transport arises on the basis of a written contract’ (concluded between the relevant authorities and the operator) (5).

5

| (12) | Additionally, the provisions of Paragraph 19b(2) and (4) of the Road Transport Law stipulates that ‘the preliminary professional estimate of the proven loss for the whole period for which the public service obligation is imposed, is the mandatory integral part of the public service obligation contract’. The relevant authorities ‘shall settle the proven loss at the maximum level of this preliminary professional estimate increased only by the unforeseen costs. (...) If the carrier also provides transport services other than the public service obligations or other activities, he shall keep separate accounts for the public service obligations’. |
| --- | --- |

(12)

Additionally, the provisions of Paragraph 19b(2) and (4) of the Road Transport Law stipulates that ‘the preliminary professional estimate of the proven loss for the whole period for which the public service obligation is imposed, is the mandatory integral part of the public service obligation contract’. The relevant authorities ‘shall settle the proven loss at the maximum level of this preliminary professional estimate increased only by the unforeseen costs. (...) If the carrier also provides transport services other than the public service obligations or other activities, he shall keep separate accounts for the public service obligations’.

| (13) | Pursuant to Paragraph 19b(5) of the Road Transport Law ‘determination of the provable loss, method of calculation of the preliminary professional estimate of the provable loss, rules for allocation of funds from the relevant budgets, the documents by which calculations of the provable loss must be supported and the method of exercise of the professional government supervision over funding of the traffic services are determined by the implementing regulation.’. This regulation — Regulation 50/1998 of the Ministry of Transport and Communications of 13 March 1998 on provable loss in the public line passenger transport (the Regulation) — defines the provable loss in the public line passenger transport as: ‘the difference between the sum of the economically substantiated costs and the adequate profit and between the earned receipts and revenue’ (hereafter losses). |
| --- | --- |

(13)

Pursuant to Paragraph 19b(5) of the Road Transport Law ‘determination of the provable loss, method of calculation of the preliminary professional estimate of the provable loss, rules for allocation of funds from the relevant budgets, the documents by which calculations of the provable loss must be supported and the method of exercise of the professional government supervision over funding of the traffic services are determined by the implementing regulation.’. This regulation — Regulation 50/1998 of the Ministry of Transport and Communications of 13 March 1998 on provable loss in the public line passenger transport (the Regulation) — defines the provable loss in the public line passenger transport as: ‘the difference between the sum of the economically substantiated costs and the adequate profit and between the earned receipts and revenue’ (hereafter losses).

| (14) | The adequate profit is understood in the Regulation as ‘the sum which — after taxation (...) — does not exceed 1/8 of the price of the buses used usually for the public line passenger transport providing the traffic services by fulfilment of the public service obligation reduced by the sum of the total real depreciation of these buses and the sum spent for investments related to operation of the public line passenger transport, provided that the relevant authority expressed its approval for the investment for purpose of its incorporation into the calculation of the provable loss’. |
| --- | --- |

(14)

The adequate profit is understood in the Regulation as ‘the sum which — after taxation (...) — does not exceed 1/8 of the price of the buses used usually for the public line passenger transport providing the traffic services by fulfilment of the public service obligation reduced by the sum of the total real depreciation of these buses and the sum spent for investments related to operation of the public line passenger transport, provided that the relevant authority expressed its approval for the investment for purpose of its incorporation into the calculation of the provable loss’.

| (15) | With effect from 1 January 2003 the regional authorities, including Southern Moravia authorities, became responsible in the Czech Republic for concluding contracts with transport operators for providing public transport services. The Southern Moravia authorities compared the costs of providing public transport incurred by the Complainant with the average cost for bus transport operation in the Czech Republic obtained from statistical survey. They concluded that the Complainant’s costs were higher than the average cost. |
| --- | --- |

(15)

With effect from 1 January 2003 the regional authorities, including Southern Moravia authorities, became responsible in the Czech Republic for concluding contracts with transport operators for providing public transport services. The Southern Moravia authorities compared the costs of providing public transport incurred by the Complainant with the average cost for bus transport operation in the Czech Republic obtained from statistical survey. They concluded that the Complainant’s costs were higher than the average cost.

| (16) | On 24 March 2003, given the abovementioned assessment and after unsuccessful negotiations with the Complainant, the authorities of the Southern Moravia Region decided to conduct negotiations for providing transport services with other operators. They approached the known carriers operating in the Southern Moravia Region with a request to submit tenders for providing public transport services in Znojmo territory. The invitation to submit tenders was sent to 41 carriers, including the Complainant. It envisaged that the regional authorities were willing to pay to the operators a price of not more than CZK 26 per km for providing the service. Additionally, it envisaged a requirement that the operators must have an electronic processing system and be in a good standing with the administration. |
| --- | --- |

(16)

On 24 March 2003, given the abovementioned assessment and after unsuccessful negotiations with the Complainant, the authorities of the Southern Moravia Region decided to conduct negotiations for providing transport services with other operators. They approached the known carriers operating in the Southern Moravia Region with a request to submit tenders for providing public transport services in Znojmo territory. The invitation to submit tenders was sent to 41 carriers, including the Complainant. It envisaged that the regional authorities were willing to pay to the operators a price of not more than CZK 26 per km for providing the service. Additionally, it envisaged a requirement that the operators must have an electronic processing system and be in a good standing with the administration.

| (17) | The regional authorities received answers from 9 carriers who subsequently were invited to a meeting with the regional authority. A selection committee appointed by the Southern Moravia Regional Council assessed and rated the tenders. It recommended that the contracts for providing transport services were concluded with 6 carriers, including the Complainant, namely: Bítešská, BK Bus, Břežanská společnost, PSOTA, Tredos and the Complainant (ČAS-Service a.s.). |
| --- | --- |

(17)

The regional authorities received answers from 9 carriers who subsequently were invited to a meeting with the regional authority. A selection committee appointed by the Southern Moravia Regional Council assessed and rated the tenders. It recommended that the contracts for providing transport services were concluded with 6 carriers, including the Complainant, namely: Bítešská, BK Bus, Břežanská společnost, PSOTA, Tredos and the Complainant (ČAS-Service a.s.).

| (18) | The criteria taken into account by the selection committee in assessing the tenders were clarity and completeness. Additionally, the Southern Moravia authorities took into account among others, the criterion of minimising the number of technical operational kilometres and cohesiveness of selected territory. |
| --- | --- |

(18)

The criteria taken into account by the selection committee in assessing the tenders were clarity and completeness. Additionally, the Southern Moravia authorities took into account among others, the criterion of minimising the number of technical operational kilometres and cohesiveness of selected territory.

| (19) | According to the Czech authorities, the Complainant was considered to meet the selection criteria only conditionally, since it did not specify clearly the price of its transport operation. During subsequent meetings, the Complainant then expressed that it could not accept compensation at the rate proposed by the Southern Moravia authorities in the invitation to submit tenders. |
| --- | --- |

(19)

According to the Czech authorities, the Complainant was considered to meet the selection criteria only conditionally, since it did not specify clearly the price of its transport operation. During subsequent meetings, the Complainant then expressed that it could not accept compensation at the rate proposed by the Southern Moravia authorities in the invitation to submit tenders.

| (20) | As a consequence, the regional authorities established that the Complainant did not fulfil the conditions of the selection procedure and that contract for providing public transport services could not be concluded with it. |
| --- | --- |

(20)

As a consequence, the regional authorities established that the Complainant did not fulfil the conditions of the selection procedure and that contract for providing public transport services could not be concluded with it.

| (21) | Contracts were concluded with these operators who accepted that the maximum price to be paid for providing public transport would amount to CZK 26 per km. According to the Czech authorities this meant that a well-managed and well-equipped company with costs of CZK 23 959 per km would have received a profit amounting to CZK 2 041 per km. The cost of CZK 23 959 per km was obtained from statistical surveys conducted pursuant to Act No 89/1995 Coll. on the State Statistical Service. These surveys referred to providing public bus services on the territory of the Czech Republic for the period of 2002. |
| --- | --- |

(21)

Contracts were concluded with these operators who accepted that the maximum price to be paid for providing public transport would amount to CZK 26 per km. According to the Czech authorities this meant that a well-managed and well-equipped company with costs of CZK 23 959 per km would have received a profit amounting to CZK 2 041 per km. The cost of CZK 23 959 per km was obtained from statistical surveys conducted pursuant to Act No 89/1995 Coll. on the State Statistical Service. These surveys referred to providing public bus services on the territory of the Czech Republic for the period of 2002.

| (22) | The estimated price per km (not exceeding CZK 26 per km) was specified in the contract with each operator. This served to establish an overall amount of revenues (price per kilometre multiplied by a number of kilometres) which would be paid to an operator for providing services. From this amount actual revenues were deducted in order to define losses (6). |
| --- | --- |

(22)

The estimated price per km (not exceeding CZK 26 per km) was specified in the contract with each operator. This served to establish an overall amount of revenues (price per kilometre multiplied by a number of kilometres) which would be paid to an operator for providing services. From this amount actual revenues were deducted in order to define losses (6).

6

| (23) | The operator had to provide the authority with documentary proof of actual revenues after providing the services. Only then would the final amount of losses be established and the payment of the compensation take place. |
| --- | --- |

(23)

The operator had to provide the authority with documentary proof of actual revenues after providing the services. Only then would the final amount of losses be established and the payment of the compensation take place.

| (24) | Apart from the general requirements envisaged by the Road Transport Law for carriers and deriving from the fact that such operators held licences, each contract stipulated more specific obligations for each operator, namely the obligation to provide transport on specific lines and at defined times as well as conditions for amendments of the contracts and penalties in the event of failure to comply with contracts. |
| --- | --- |

(24)

Apart from the general requirements envisaged by the Road Transport Law for carriers and deriving from the fact that such operators held licences, each contract stipulated more specific obligations for each operator, namely the obligation to provide transport on specific lines and at defined times as well as conditions for amendments of the contracts and penalties in the event of failure to comply with contracts.

| (25) | The Czech authorities have informed the Commission that after 2003 the Southern Moravia authorities agreed to conclude further contracts for providing transport services with the same operators for 2004 and 2005. |
| --- | --- |

(25)

The Czech authorities have informed the Commission that after 2003 the Southern Moravia authorities agreed to conclude further contracts for providing transport services with the same operators for 2004 and 2005.

| (26) | The Czech authorities have acknowledged that no specific procedure was undertaken for the purpose of selecting operators which would provide transport services in 2004 and 2005. |
| --- | --- |

(26)

The Czech authorities have acknowledged that no specific procedure was undertaken for the purpose of selecting operators which would provide transport services in 2004 and 2005.

| (27) | The following table provides data concerning the amounts of compensation envisaged in the contracts for 2004 (Table 1):







  Name of the operator | Date of the contract | Maximum amount of the compensation envisaged in the contract |
| --- | --- | --- | --- |
| Tredos | 21.1.2004 | CZK 7 364 733 |
| Modified: | |
| 31.8.2004 | CZK 7 399 733 |
| BK Bus | 22.1.2004 | CZK 4 349 779 |
| Bítešská | 21.1.2004 | CZK 4 780 000 |
| PSOTA | 20.1.2004 | CZK 18 924 849 |
| Modified: | |
| 31.8.2004 | CZK 18 956 769 |
| 17.9.2004 | CZK 18 979 733 |
| Břežanská společnost | 26.1.2004 | CZK 10 615 611 |

(27)

The following table provides data concerning the amounts of compensation envisaged in the contracts for 2004 (Table 1):

Name of the operator

Date of the contract

Maximum amount of the compensation envisaged in the contract

Tredos

21.1.2004

CZK 7 364 733

Modified:

31.8.2004

CZK 7 399 733

BK Bus

22.1.2004

CZK 4 349 779

Bítešská

21.1.2004

CZK 4 780 000

PSOTA

20.1.2004

CZK 18 924 849

Modified:

31.8.2004

CZK 18 956 769

17.9.2004

CZK 18 979 733

Břežanská společnost

26.1.2004

CZK 10 615 611

| (28) | Furthermore, contracts concluded for 2004 were prolonged for 2005 (Table 2):







  Name of the operator | Date of the contract | Maximum amount of the compensation envisaged in the contract |
| --- | --- | --- | --- |
| Tredos | 4.3.2005 | CZK 11 457 527 |
| Modified: | |
| 31.3.2005 | CZK 11 593 799 |
| BK Bus | 4.3.2005 | CZK 5 244 124 |
| Bítešská | 4.3.2005 | CZK 6 000 000 |
| PSOTA | 4.3.2005 | CZK 20 999 640 |
| Břežanská společnost | 4.3.2005 | CZK 11 953 423 |

(28)

Furthermore, contracts concluded for 2004 were prolonged for 2005 (Table 2):

Name of the operator

Date of the contract

Maximum amount of the compensation envisaged in the contract

Tredos

4.3.2005

CZK 11 457 527

Modified:

31.3.2005

CZK 11 593 799

BK Bus

4.3.2005

CZK 5 244 124

Bítešská

4.3.2005

CZK 6 000 000

PSOTA

4.3.2005

CZK 20 999 640

Břežanská společnost

4.3.2005

CZK 11 953 423

| (29) | According to the Czech authorities, with regard to transport services in the Southern Moravia Region, the abovementioned undertakings did not obtain in the course of 2004-2005 any other financing from the State or through State resources. |
| --- | --- |

(29)

According to the Czech authorities, with regard to transport services in the Southern Moravia Region, the abovementioned undertakings did not obtain in the course of 2004-2005 any other financing from the State or through State resources.

3.   GROUNDS FOR INITIATING THE PROCEDURE

GROUNDS FOR INITIATING THE PROCEDURE

| (30) | The Commission decided to initiate the procedure on the grounds stated in recitals 31 to 38. |
| --- | --- |

(30)

The Commission decided to initiate the procedure on the grounds stated in recitals 31 to 38.

3.1.   Presence of aid

Presence of aid

| (31) | The Commission had doubts that the third condition set in the Altmark judgment (7) was fulfilled. |
| --- | --- |

(31)

The Commission had doubts that the third condition set in the Altmark judgment (7) was fulfilled.

7

| (32) | As the calculation of the compensation was made on the basis of the parameter established in advance (CZK 26 per km) and as the final remuneration was based on evidence of the losses actually incurred, not exceeding what had been envisaged in advance in the contracts, the Commission took the preliminary view that the amount of compensation could not exceed the actual losses. Furthermore, the Commission considered the profit included in the sum of CZK 26 per km as reasonable. |
| --- | --- |

(32)

As the calculation of the compensation was made on the basis of the parameter established in advance (CZK 26 per km) and as the final remuneration was based on evidence of the losses actually incurred, not exceeding what had been envisaged in advance in the contracts, the Commission took the preliminary view that the amount of compensation could not exceed the actual losses. Furthermore, the Commission considered the profit included in the sum of CZK 26 per km as reasonable.

| (33) | However, the Commission expressed doubts on the notion of unforeseeable cost in the Czech legislation, which could serve as a justification for an extraordinary increase of the cap for the compensation. |
| --- | --- |

(33)

However, the Commission expressed doubts on the notion of unforeseeable cost in the Czech legislation, which could serve as a justification for an extraordinary increase of the cap for the compensation.

| (34) | In addition, the Commission concluded that neither the fourth condition set in the Altmark judgment was fulfilled. The Commission considered that the procedure applied by the Czech authorities could not be considered a public procurement procedure or a procedure ensuring that the level of compensation was determined on the basis of an analysis of the costs which a typical undertaking, well-run and adequately provided with means of transport would have incurred, as required by the Altmark judgment. |
| --- | --- |

(34)

In addition, the Commission concluded that neither the fourth condition set in the Altmark judgment was fulfilled. The Commission considered that the procedure applied by the Czech authorities could not be considered a public procurement procedure or a procedure ensuring that the level of compensation was determined on the basis of an analysis of the costs which a typical undertaking, well-run and adequately provided with means of transport would have incurred, as required by the Altmark judgment.

| (35) | As a consequence, the Commission considered that there was no clear evidence to prove that the compensation had not granted a selective advantage and therefore, given that the other conditions of Article 87(1) of the EC Treaty were fulfilled, State aid within the meaning of this provision. |
| --- | --- |

(35)

As a consequence, the Commission considered that there was no clear evidence to prove that the compensation had not granted a selective advantage and therefore, given that the other conditions of Article 87(1) of the EC Treaty were fulfilled, State aid within the meaning of this provision.

3.2.   Compatibility

Compatibility

| (36) | The Commission noted that the compatibility of such State aid with the common market should be assessed in light of the general principles derived from the EC Treaty, the jurisprudence of the Court of Justice and the Court of First Instance and the Commission’s decision practice in other areas than public transport (8). |
| --- | --- |

(36)

The Commission noted that the compatibility of such State aid with the common market should be assessed in light of the general principles derived from the EC Treaty, the jurisprudence of the Court of Justice and the Court of First Instance and the Commission’s decision practice in other areas than public transport (8).

8

| (37) | Having examined the available information, the Commission considered that the general principles governing the assessment of compatibility of the aid were complied with in the case in hand. The pre-establishment in the selection procedure of a maximum price for compensation based on national statistical analysis guaranteed the absence of overcompensation of the operators. |
| --- | --- |

(37)

Having examined the available information, the Commission considered that the general principles governing the assessment of compatibility of the aid were complied with in the case in hand. The pre-establishment in the selection procedure of a maximum price for compensation based on national statistical analysis guaranteed the absence of overcompensation of the operators.

| (38) | However, as in the case at hand there was no public procurement procedure and that the Complainant pleads that Bítešská, BK Bus, Břežanská společnost, PSOTA, Tredos received illegal State aid, the Commission considered that it had to give the opportunity to the Complainant and third parties to comment on the methodology applied for establishing the amount of compensation by the Southern Moravia authorities, before being able to conclude with certainty that the aid is compatible with Article 73 of the EC Treaty by virtue of Article 14 of Regulation (EC) No 659/1999. |
| --- | --- |

(38)

However, as in the case at hand there was no public procurement procedure and that the Complainant pleads that Bítešská, BK Bus, Břežanská společnost, PSOTA, Tredos received illegal State aid, the Commission considered that it had to give the opportunity to the Complainant and third parties to comment on the methodology applied for establishing the amount of compensation by the Southern Moravia authorities, before being able to conclude with certainty that the aid is compatible with Article 73 of the EC Treaty by virtue of Article 14 of Regulation (EC) No 659/1999.

4.   COMMENTS FROM THE CZECH AUTHORITIES

COMMENTS FROM THE CZECH AUTHORITIES

| (39) | The Czech Republic stated that the concept of unforeseeable costs is governed by the Road Transport Law with regard to the preliminary expert estimate of the demonstrable loss for the entire period for which the public service obligation contract is concluded. This estimate, which is submitted by the carrier, forms a mandatory part of the public service contract. |
| --- | --- |

(39)

The Czech Republic stated that the concept of unforeseeable costs is governed by the Road Transport Law with regard to the preliminary expert estimate of the demonstrable loss for the entire period for which the public service obligation contract is concluded. This estimate, which is submitted by the carrier, forms a mandatory part of the public service contract.

| (40) | Section 19b(3) of that law stipulates that the region must subsequently reimburse the demonstrable loss up to an amount not exceeding the expert estimate, augmented only by unforeseeable demonstrable costs. However, the Road Transport Law does not provide a more detailed definition of unforeseeable demonstrable costs and definition of this concept is left to the individual purchasers of transport services. |
| --- | --- |

(40)

Section 19b(3) of that law stipulates that the region must subsequently reimburse the demonstrable loss up to an amount not exceeding the expert estimate, augmented only by unforeseeable demonstrable costs. However, the Road Transport Law does not provide a more detailed definition of unforeseeable demonstrable costs and definition of this concept is left to the individual purchasers of transport services.

| (41) | The Czech Republic recalled that the public service contracts concluded by the Southern Moravia Region provided for a preliminary estimate of losses. If the amount of the actual demonstrable loss for the period in question was higher than the preliminary expert estimate of demonstrable loss, the Southern Moravia Region reimbursed the demonstrable loss only up to the amount of the preliminary expert estimate. In this context, the risk of higher actual costs and lower actual revenue in relation to the preliminary estimate of demonstrable loss was borne by the operators, with the exception of unforeseeable proven costs. |
| --- | --- |

(41)

The Czech Republic recalled that the public service contracts concluded by the Southern Moravia Region provided for a preliminary estimate of losses. If the amount of the actual demonstrable loss for the period in question was higher than the preliminary expert estimate of demonstrable loss, the Southern Moravia Region reimbursed the demonstrable loss only up to the amount of the preliminary expert estimate. In this context, the risk of higher actual costs and lower actual revenue in relation to the preliminary estimate of demonstrable loss was borne by the operators, with the exception of unforeseeable proven costs.

| (42) | The concept of unforeseeable costs was set out in greater detail in the public service contracts concluded by the Southern Moravia Region with the individual transport operators. Unforeseeable costs refer to situations which are independent from the companies’ management such as natural disasters, price interventions by the State, diversions or changes in excise duties, VAT, etc. The Czech Republic provided the Commission with the relevant abstracts in the public service contracts. |
| --- | --- |

(42)

The concept of unforeseeable costs was set out in greater detail in the public service contracts concluded by the Southern Moravia Region with the individual transport operators. Unforeseeable costs refer to situations which are independent from the companies’ management such as natural disasters, price interventions by the State, diversions or changes in excise duties, VAT, etc. The Czech Republic provided the Commission with the relevant abstracts in the public service contracts.

5.   COMMENTS FROM THIRD PARTIES AND OBSERVATIONS OF THE CZECH AUTHORITIES

COMMENTS FROM THIRD PARTIES AND OBSERVATIONS OF THE CZECH AUTHORITIES

| (43) | The Complainant was the only third party to submit comments following the decision of the Commission to initiate the procedure. |
| --- | --- |

(43)

The Complainant was the only third party to submit comments following the decision of the Commission to initiate the procedure.

| (44) | Comments of the Complainant regarded the following aspects:






  — | the allegation that the concerned transport was not commissioned as public service contracts but within the notion of public service obligation deriving from the Road Transport Law, |
| --- | --- | --- |

(44)

Comments of the Complainant regarded the following aspects:

—

the allegation that the concerned transport was not commissioned as public service contracts but within the notion of public service obligation deriving from the Road Transport Law,

| — | the allegation that the Altmark judgment should not have been applied in this case, |
| --- | --- |

—

the allegation that the Altmark judgment should not have been applied in this case,

| — | the opposition to consider the amount of CZK 26 per km as the maximum price of the transport operation for the determination of the compensation. The Complainant considered indeed that this amount is rather just a part of the preliminary expert estimate according to which the provable loss should be compensated to the carrier in compliance with the Road Transport Act, |
| --- | --- |

—

the opposition to consider the amount of CZK 26 per km as the maximum price of the transport operation for the determination of the compensation. The Complainant considered indeed that this amount is rather just a part of the preliminary expert estimate according to which the provable loss should be compensated to the carrier in compliance with the Road Transport Act,

| — | the allegation that the local conditions of the public scheduled transport operations were not taken into account when setting the price paid for the provision of transport operations amounting to CZK 26 per km. Should these local conditions have been taken into account, it would have resulted in a higher amount, |
| --- | --- |

—

the allegation that the local conditions of the public scheduled transport operations were not taken into account when setting the price paid for the provision of transport operations amounting to CZK 26 per km. Should these local conditions have been taken into account, it would have resulted in a higher amount,

| — | the public service compensation was a mean for the other carriers to replace their fleet, |
| --- | --- |

—

the public service compensation was a mean for the other carriers to replace their fleet,

| — | the Commission should have assessed the complaint also for the period before 1 May 2004, |
| --- | --- |

—

the Commission should have assessed the complaint also for the period before 1 May 2004,

| — | the allegation that the public service contracts led to a situation of competition between subsidised and non-subsidised transport which create a distortion of competition. |
| --- | --- |

—

the allegation that the public service contracts led to a situation of competition between subsidised and non-subsidised transport which create a distortion of competition.

| (45) | However, the Complainant did not comment on the concept of unforeseeable costs. Nor did the Complainant comment on the fact that the pre-establishment of a maximum price for compensation based on national statistical analysis could guarantee the absence of overcompensation for the operators. On the contrary, the Complainant argued that this reference amount of CZK 26 per km should not have been considered by the Czech authorities as a maximum transport price. |
| --- | --- |

(45)

However, the Complainant did not comment on the concept of unforeseeable costs. Nor did the Complainant comment on the fact that the pre-establishment of a maximum price for compensation based on national statistical analysis could guarantee the absence of overcompensation for the operators. On the contrary, the Complainant argued that this reference amount of CZK 26 per km should not have been considered by the Czech authorities as a maximum transport price.

| (46) | Therefore, the Complainant comments did not specifically concern the doubts that the Commission expressed in the decision to initiate the procedure. In addition, the Czech Republic submitted to the Commission its observations on the comments of the Complainant. These observations confirmed the Commission assessment on the specific issues brought forward by the Complainant. |
| --- | --- |

(46)

Therefore, the Complainant comments did not specifically concern the doubts that the Commission expressed in the decision to initiate the procedure. In addition, the Czech Republic submitted to the Commission its observations on the comments of the Complainant. These observations confirmed the Commission assessment on the specific issues brought forward by the Complainant.

| (47) | As a consequence, the Complainant’s comments do not alter the Commission legal assessment developed in the decision to initiate the procedure. |
| --- | --- |

(47)

As a consequence, the Complainant’s comments do not alter the Commission legal assessment developed in the decision to initiate the procedure.

6.   LEGAL ASSESSMENT

LEGAL ASSESSMENT

6.1.   Competence of the Commission to examine measures granted by countries acceding European Union on 1 May 2004

Competence of the Commission to examine measures granted by countries acceding European Union on 1 May 2004

| (48) | The provisions of Annex IV, Chapter 3 to the 2003 Act of Accession create a legal framework for assessment of measures which were put into effect by the acceding Member States before their accession to the EU and are still applicable after accession. |
| --- | --- |

(48)

The provisions of Annex IV, Chapter 3 to the 2003 Act of Accession create a legal framework for assessment of measures which were put into effect by the acceding Member States before their accession to the EU and are still applicable after accession.

| (49) | With particular reference to the transport sector the provisions of Annex IV stipulate that ‘aid schemes and individual aid (...), put into effect in a new Member State before the date of accession and still applicable after that date, shall be regarded as existing aid within the meaning of Article 88(1) of the EC Treaty subject to the following condition: the aid measures shall be communicated to the Commission within four months of the date of accession’. |
| --- | --- |

(49)

With particular reference to the transport sector the provisions of Annex IV stipulate that ‘aid schemes and individual aid (...), put into effect in a new Member State before the date of accession and still applicable after that date, shall be regarded as existing aid within the meaning of Article 88(1) of the EC Treaty subject to the following condition: the aid measures shall be communicated to the Commission within four months of the date of accession’.

put into effect

before

still applicable after

| (50) | According to the established decision practice (9), ‘aid measures granted before accession and not applicable after accession cannot be examined by the Commission neither under the procedures laid down in Article 88 EC Treaty nor under the interim mechanism. Only such measures that can still give rise, after accession, to the granting of additional aid or to an increase in the amount of aid already granted, may qualify as existing aid by virtue of the interim mechanism — if they fulfil the relevant conditions — and are therefore subject to it. On the other hand, the interim mechanism is devoid of any purpose in respect of aid measures that have already been finally and unconditionally granted for a given amount before accession. (...) [I]n order to determine whether this is the case, the relevant criterion is the legally binding act by which the competent national authorities undertake to grant aid. If no such act exists, the measure has not been granted before accession and constitutes new aid the compatibility of which with the common market is assessed by the Commission on the basis of Articles 87 and 88 EC Treaty. A new measure must be assessed at the point in time when the aid is granted; it is the legal commitment of the state that is synonymous with the granting of aid and not the mere payment thereof. Any payment, current or future, under a legal commitment is an act of simple implementation and cannot be construed to be new or additional aid. Therefore, the Commission considers that for a measure to be considered as applicable after accession it must be shown that it is liable to produce after accession an additional benefit that was not known, or not precisely known, when the aid was granted’. |
| --- | --- |

(50)

According to the established decision practice (9), ‘aid measures granted before accession and not applicable after accession cannot be examined by the Commission neither under the procedures laid down in Article 88 EC Treaty nor under the interim mechanism. Only such measures that can still give rise, after accession, to the granting of additional aid or to an increase in the amount of aid already granted, may qualify as existing aid by virtue of the interim mechanism — if they fulfil the relevant conditions — and are therefore subject to it. On the other hand, the interim mechanism is devoid of any purpose in respect of aid measures that have already been finally and unconditionally granted for a given amount before accession. (...) [I]n order to determine whether this is the case, the relevant criterion is the legally binding act by which the competent national authorities undertake to grant aid. If no such act exists, the measure has not been granted before accession and constitutes new aid the compatibility of which with the common market is assessed by the Commission on the basis of Articles 87 and 88 EC Treaty. A new measure must be assessed at the point in time when the aid is granted; it is the legal commitment of the state that is synonymous with the granting of aid and not the mere payment thereof. Any payment, current or future, under a legal commitment is an act of simple implementation and cannot be construed to be new or additional aid. Therefore, the Commission considers that for a measure to be considered as applicable after accession it must be shown that it is liable to produce after accession an additional benefit that was not known, or not precisely known, when the aid was granted’.

9

| (51) | The Commission first notes that the Czech authorities did not communicate the contracts of Table 1 (all put into effect before 1 May 2004) to the Commission within the framework of the procedure established by Annex IV(3) of the 2003 Act of Accession. |
| --- | --- |

(51)

The Commission first notes that the Czech authorities did not communicate the contracts of Table 1 (all put into effect before 1 May 2004) to the Commission within the framework of the procedure established by Annex IV(3) of the 2003 Act of Accession.

| (52) | Further, the Commission notes that, given the definition of unforeseeable costs, as explained following the decision to initiate the procedure, the measures were liable to produce an additional benefit not precisely known when the aid was granted. |
| --- | --- |

(52)

Further, the Commission notes that, given the definition of unforeseeable costs, as explained following the decision to initiate the procedure, the measures were liable to produce an additional benefit not precisely known when the aid was granted.

| (53) | As a result, all contracts enumerated in Table 1, in so far as they involve State aid, concern State aid applicable after accession which is not existing aid and for which the Commission is competent. |
| --- | --- |

(53)

As a result, all contracts enumerated in Table 1, in so far as they involve State aid, concern State aid applicable after accession which is not existing aid and for which the Commission is competent.

| (54) | With regards to the contracts listed in Table 2, which were all concluded after 1 May 2004, the Commission is competent to investigate. |
| --- | --- |

(54)

With regards to the contracts listed in Table 2, which were all concluded after 1 May 2004, the Commission is competent to investigate.

6.2.   Presence of aid

Presence of aid

| (55) | According to Article 87(1) of the EC Treaty, 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 provision of certain goods shall be incompatible with the common market, in so far as it affects trade between Member States, save as otherwise provided for in the Treaty. |
| --- | --- |

(55)

According to Article 87(1) of the EC Treaty, 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 provision of certain goods shall be incompatible with the common market, in so far as it affects trade between Member States, save as otherwise provided for in the Treaty.

6.2.1.   State resources

State resources

| (56) | The Commission notes that the compensations were paid by the Southern Moravia authorities from the public budget. Therefore, they were granted through State resources. |
| --- | --- |

(56)

The Commission notes that the compensations were paid by the Southern Moravia authorities from the public budget. Therefore, they were granted through State resources.

6.2.2.   Selective economic advantage

Selective economic advantage

| (57) | It must be established whether the measure grants a selective economic advantage. |
| --- | --- |

(57)

It must be established whether the measure grants a selective economic advantage.

| (58) | It follows from the Altmark judgment that ‘where a State measure must be regarded as compensation for services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article 92(1) of the Treaty. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied’ (10). |
| --- | --- |

(58)

It follows from the Altmark judgment that ‘where a State measure must be regarded as compensation for services provided by the recipient undertakings in order to discharge public service obligations, so that those undertakings do not enjoy a real financial advantage and the measure thus does not have the effect of putting them in a more favourable competitive position than the undertakings competing with them, such a measure is not caught by Article 92(1) of the Treaty. However, for such compensation to escape classification as State aid in a particular case, a number of conditions must be satisfied’ (10).

10

| (59) | Firstly, according to the abovementioned judgment, it has to be established whether ‘the recipient undertaking is actually required to discharge public service obligations and (whether) those obligations have been clearly defined’. |
| --- | --- |

(59)

Firstly, according to the abovementioned judgment, it has to be established whether ‘the recipient undertaking is actually required to discharge public service obligations and (whether) those obligations have been clearly defined’.

| (60) | The Commission did not raise doubts as regards the fulfilment of this condition in its decision to initiate the procedure. |
| --- | --- |

(60)

The Commission did not raise doubts as regards the fulfilment of this condition in its decision to initiate the procedure.

| (61) | With regard to this requirement, the Commission notes that the Road Transport Law provides a definition of the public service obligation and stipulates that the public service obligation in the public line transport arises on the basis of the written contract made between the authorities and the carrier. The Czech authorities provided the Commission with the copies of the contracts and subsequent annexes concluded with transport operators. |
| --- | --- |

(61)

With regard to this requirement, the Commission notes that the Road Transport Law provides a definition of the public service obligation and stipulates that the public service obligation in the public line transport arises on the basis of the written contract made between the authorities and the carrier. The Czech authorities provided the Commission with the copies of the contracts and subsequent annexes concluded with transport operators.

| (62) | The Commission also noted that the public service obligation was clearly and specifically defined in the contracts, namely the links and the periods in which transport services were to be provided were clearly defined for particular operators. |
| --- | --- |

(62)

The Commission also noted that the public service obligation was clearly and specifically defined in the contracts, namely the links and the periods in which transport services were to be provided were clearly defined for particular operators.

| (63) | Secondly, it must be shown that ‘the parameters on the basis of which the compensation is calculated have been established beforehand in an objective and transparent manner’. |
| --- | --- |

(63)

Secondly, it must be shown that ‘the parameters on the basis of which the compensation is calculated have been established beforehand in an objective and transparent manner’.

| (64) | The Commission did not raise doubts as regards the fulfilment of this condition in its decision to initiate the procedure. |
| --- | --- |

(64)

The Commission did not raise doubts as regards the fulfilment of this condition in its decision to initiate the procedure.

| (65) | The Commission noted that the maximum price for transport services was established by the authorities on the basis of the criteria indicated in Paragraph 19b of the Road Transport Law and of Regulation at the level of CZK 26 per km. This price was included in the invitation for submitting offers sent to all potentially interested operators in 2003. The Commission noted that the price was established on the basis of the statistical data. |
| --- | --- |

(65)

The Commission noted that the maximum price for transport services was established by the authorities on the basis of the criteria indicated in Paragraph 19b of the Road Transport Law and of Regulation at the level of CZK 26 per km. This price was included in the invitation for submitting offers sent to all potentially interested operators in 2003. The Commission noted that the price was established on the basis of the statistical data.

| (66) | Therefore, the price was established in advance, i.e. before the selection of the operators took place, in an objective and transparent manner. The parameter was not modified in annexes agreed upon after accession of the Czech Republic to the European Union. |
| --- | --- |

(66)

Therefore, the price was established in advance, i.e. before the selection of the operators took place, in an objective and transparent manner. The parameter was not modified in annexes agreed upon after accession of the Czech Republic to the European Union.

| (67) | The third condition enumerated in the Altmark judgment is that ‘the compensation does not exceed what is necessary to cover all or part of the costs incurred in discharging the public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations’. |
| --- | --- |

(67)

The third condition enumerated in the Altmark judgment is that ‘the compensation does not exceed what is necessary to cover all or part of the costs incurred in discharging the public service obligations, taking into account the relevant receipts and a reasonable profit for discharging those obligations’.

| (68) | In its decision to initiate the procedure, the Commission noted that the regional authorities expressed in the invitation to submit offers that the price of maximum CZK 26 per km was the price that they were willing to pay to the carriers for providing transport services. |
| --- | --- |

(68)

In its decision to initiate the procedure, the Commission noted that the regional authorities expressed in the invitation to submit offers that the price of maximum CZK 26 per km was the price that they were willing to pay to the carriers for providing transport services.

| (69) | Additionally, it also noted that all the contracts contain an estimation of the losses which the particular bus operator will incur when providing transport services as foreseen in the contract. The estimation of losses is carried out in the following manner: first, the losses are calculated for the scenario that the company receives CZK 26 per km plus the revenues from passenger tickets. Then, the losses are calculated taking into account only the revenues from passenger tickets. The price of CZK 26 per km includes also a reasonable profit, calculated on the basis of objective parameters established in the Regulation with reference to the value of the assets of undertakings. The final settlements and payments of compensation take place only once the particular bus operator has provided the documentary proof of the actual losses. If the actual losses are lower than the forecast, then only the actual losses are compensated. If the actual losses are higher than the forecast, then the maximum level of compensation is the level of the preliminary estimation. An increase of this cap is only possible if there are unforeseeable costs. |
| --- | --- |

(69)

Additionally, it also noted that all the contracts contain an estimation of the losses which the particular bus operator will incur when providing transport services as foreseen in the contract. The estimation of losses is carried out in the following manner: first, the losses are calculated for the scenario that the company receives CZK 26 per km plus the revenues from passenger tickets. Then, the losses are calculated taking into account only the revenues from passenger tickets. The price of CZK 26 per km includes also a reasonable profit, calculated on the basis of objective parameters established in the Regulation with reference to the value of the assets of undertakings. The final settlements and payments of compensation take place only once the particular bus operator has provided the documentary proof of the actual losses. If the actual losses are lower than the forecast, then only the actual losses are compensated. If the actual losses are higher than the forecast, then the maximum level of compensation is the level of the preliminary estimation. An increase of this cap is only possible if there are unforeseeable costs.

| (70) | As regards this latter concept on which the Commission expressed doubts in its decision to initiate the procedure, it should be mentioned that the concept of unforeseeable costs is governed by the Road Transport Law. It is set out in greater detail in the public service contracts concluded by the Southern Moravia Region with the individual transport operators. Unforeseeable costs refer to situations which are independent from the companies’ management such as natural disasters, price interventions by the State, diversions or changes in excise duties, VAT, etc. The operators must prove the reality of these unforeseeable costs. The existence of this exception to the maximum transport price does not compromise the ability of the compensation mechanism to make sure that the compensation does not exceed the actual losses (11). |
| --- | --- |

(70)

As regards this latter concept on which the Commission expressed doubts in its decision to initiate the procedure, it should be mentioned that the concept of unforeseeable costs is governed by the Road Transport Law. It is set out in greater detail in the public service contracts concluded by the Southern Moravia Region with the individual transport operators. Unforeseeable costs refer to situations which are independent from the companies’ management such as natural disasters, price interventions by the State, diversions or changes in excise duties, VAT, etc. The operators must prove the reality of these unforeseeable costs. The existence of this exception to the maximum transport price does not compromise the ability of the compensation mechanism to make sure that the compensation does not exceed the actual losses (11).

11

| (71) | Therefore, as the calculation of the compensation was made on the basis of the parameter established in advance (CZK 26 per km) and as the final remuneration was based on evidence of the losses, and therefore the costs, actually incurred, including unforeseeable costs, the Commission considers that the amount of compensation could not exceed the actual losses, and therefore the actual costs. Furthermore, the Commission considers the profit of CZK 2 041 per km included in the sum of CZK 26 per km as reasonable as it does represent a margin of 7,85 %. |
| --- | --- |

(71)

Therefore, as the calculation of the compensation was made on the basis of the parameter established in advance (CZK 26 per km) and as the final remuneration was based on evidence of the losses, and therefore the costs, actually incurred, including unforeseeable costs, the Commission considers that the amount of compensation could not exceed the actual losses, and therefore the actual costs. Furthermore, the Commission considers the profit of CZK 2 041 per km included in the sum of CZK 26 per km as reasonable as it does represent a margin of 7,85 %.

| (72) | As a result, the Commission comes to the conclusion that the third condition of Altmark is fulfilled. |
| --- | --- |

(72)

As a result, the Commission comes to the conclusion that the third condition of Altmark is fulfilled.

| (73) | Lastly, the Altmark judgment foresees that if ‘the undertaking, which is to discharge public service obligations, is not chosen in a public procurement procedure, the level of compensation needed has been determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with means of transport so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligation’. |
| --- | --- |

(73)

Lastly, the Altmark judgment foresees that if ‘the undertaking, which is to discharge public service obligations, is not chosen in a public procurement procedure, the level of compensation needed has been determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with means of transport so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligation’.

| (74) | The Commission must first of all examine whether the procedure applied by the Czech authorities could be considered a public procurement procedure. In its decision to initiate the procedure, the Commission noted that the Southern Moravia Region distributed to the known carriers (41 of them) in the region an invitation to submit tenders for the provision of transport services in Znojmo district. |
| --- | --- |

(74)

The Commission must first of all examine whether the procedure applied by the Czech authorities could be considered a public procurement procedure. In its decision to initiate the procedure, the Commission noted that the Southern Moravia Region distributed to the known carriers (41 of them) in the region an invitation to submit tenders for the provision of transport services in Znojmo district.

| (75) | Therefore, the procedure excluded the possibility that operators from other regions or districts were informed about the procedure and had a possibility to submit their tenders. Furthermore, this procedure ran counter to the possibility that carriers from other Member States could be taken into account in choosing the operator providing the services. The Commission noted also that the Czech authorities did not envisage any procedure for choosing the carriers for years 2004-2005 but simply prolonged contracts with these carriers which had been chosen for providing services in 2003. |
| --- | --- |

(75)

Therefore, the procedure excluded the possibility that operators from other regions or districts were informed about the procedure and had a possibility to submit their tenders. Furthermore, this procedure ran counter to the possibility that carriers from other Member States could be taken into account in choosing the operator providing the services. The Commission noted also that the Czech authorities did not envisage any procedure for choosing the carriers for years 2004-2005 but simply prolonged contracts with these carriers which had been chosen for providing services in 2003.

| (76) | These facts remain valid. The Commission can therefore conclude that the procedure applied by the Czech authorities cannot be considered a public procurement procedure as required by the Altmark judgment. |
| --- | --- |

(76)

These facts remain valid. The Commission can therefore conclude that the procedure applied by the Czech authorities cannot be considered a public procurement procedure as required by the Altmark judgment.

| (77) | This conclusion does not prejudice the position the Commission might take on the compatibility of the relevant measures with public procurement rules. |
| --- | --- |

(77)

This conclusion does not prejudice the position the Commission might take on the compatibility of the relevant measures with public procurement rules.

| (78) | Consequently, the Commission has to examine the second alternative stipulated in the fourth Altmark condition. |
| --- | --- |

(78)

Consequently, the Commission has to examine the second alternative stipulated in the fourth Altmark condition.

| (79) | The level of compensation must be determined on the basis of an analysis of the costs of a typical, well-run and adequately equipped undertaking, which should be an alternative to the analysis of the level of compensation established through the tender. As mentioned in the decision to initiate the procedure, according to the Czech authorities, the contractual price for the services was established on the basis of statistical costs which meant that a well-managed and well-equipped company bearing costs of CZK 23 959 (EUR 0,87) per km would receive a profit of CZK 2 041 (EUR 0,08) per km. |
| --- | --- |

(79)

The level of compensation must be determined on the basis of an analysis of the costs of a typical, well-run and adequately equipped undertaking, which should be an alternative to the analysis of the level of compensation established through the tender. As mentioned in the decision to initiate the procedure, according to the Czech authorities, the contractual price for the services was established on the basis of statistical costs which meant that a well-managed and well-equipped company bearing costs of CZK 23 959 (EUR 0,87) per km would receive a profit of CZK 2 041 (EUR 0,08) per km.

| (80) | In this context, the Commission noted firstly that the use of statistical data aims at ensuring that the price was established with reference to the costs of a typical undertaking. |
| --- | --- |

(80)

In this context, the Commission noted firstly that the use of statistical data aims at ensuring that the price was established with reference to the costs of a typical undertaking.

| (81) | Secondly, taking into account that all the operators taking part in the procedure had to obtain licences to conduct their activity and that they must have fulfilled certain requirements imposed on them in the invitation to submit offers, they must have been adequately provided with means of transport to meet the necessary quality requirements. |
| --- | --- |

(81)

Secondly, taking into account that all the operators taking part in the procedure had to obtain licences to conduct their activity and that they must have fulfilled certain requirements imposed on them in the invitation to submit offers, they must have been adequately provided with means of transport to meet the necessary quality requirements.

| (82) | However, as mentioned in the decision to initiate the procedure, the use of the statistical transport cost cannot per se lead to a conclusion that the operators who accepted to provide the services for CZK 26 per km should be considered well-managed carriers. Statistical data which served as the basis for establishing this amount concerned only the actual costs of transport services in the Czech Republic for the period of 2002. Therefore, there is no proof that an average of these costs represents the costs of an efficient undertaking. The Czech authorities have not provided sufficient information on this point, including after the decision to initiate the procedure. |
| --- | --- |

(82)

However, as mentioned in the decision to initiate the procedure, the use of the statistical transport cost cannot per se lead to a conclusion that the operators who accepted to provide the services for CZK 26 per km should be considered well-managed carriers. Statistical data which served as the basis for establishing this amount concerned only the actual costs of transport services in the Czech Republic for the period of 2002. Therefore, there is no proof that an average of these costs represents the costs of an efficient undertaking. The Czech authorities have not provided sufficient information on this point, including after the decision to initiate the procedure.

| (83) | Hence, as not all of the requirements from the second alternative of the fourth Altmark condition are fulfilled, the Commission cannot conclude that the procedure applied by the regional authorities can be considered a procedure ensuring that the level of compensation was equal to the level to be obtained in the open public tender. |
| --- | --- |

(83)

Hence, as not all of the requirements from the second alternative of the fourth Altmark condition are fulfilled, the Commission cannot conclude that the procedure applied by the regional authorities can be considered a procedure ensuring that the level of compensation was equal to the level to be obtained in the open public tender.

| (84) | In other words, the Commission cannot exclude that in the open public tender the regional authorities could have been able to find operators representing lower costs and consequently offering to provide the services demanding lower remuneration. Further, the Commission cannot conclude that the amount of compensation was established at the level which guarantees that no advantage was conferred to certain operators. |
| --- | --- |

(84)

In other words, the Commission cannot exclude that in the open public tender the regional authorities could have been able to find operators representing lower costs and consequently offering to provide the services demanding lower remuneration. Further, the Commission cannot conclude that the amount of compensation was established at the level which guarantees that no advantage was conferred to certain operators.

| (85) | Therefore, the Commission considers that the compensation has granted an advantage to certain operators of public transport. Consequently, the second condition for the application of Article 87(1) of the EC Treaty is fulfilled in the case. |
| --- | --- |

(85)

Therefore, the Commission considers that the compensation has granted an advantage to certain operators of public transport. Consequently, the second condition for the application of Article 87(1) of the EC Treaty is fulfilled in the case.

6.2.3.   Distortion of competition and effect on trade between Member States

Distortion of competition and effect on trade between Member States

| (86) | With regard to this condition, it needs to be verified whether the advantage granted from the State resources can distort competition to the extent that it affects trade between Member States. |
| --- | --- |

(86)

With regard to this condition, it needs to be verified whether the advantage granted from the State resources can distort competition to the extent that it affects trade between Member States.

| (87) | In its decision to initiate the procedure, the Commission noted in this respect that the Altmark judgment provides that: ‘It is not impossible that a public subsidy granted to an undertaking which provides only local or regional transport services and does not provide any transport services outside its State of origin may none the less have an effect on trade between Member States. Where a Member State grants a public subsidy to an undertaking, the supply of transport services by that undertaking may for that reason be maintained or increased with the result that undertakings established in other Member States have less chance of providing their transport services in the market in that Member State (see, to that effect, Case 102/87 France v Commission [1988] ECR 4067, paragraph 19; Case C-305/89 Italy v Commission [1991] ECR I-1603, paragraph 26; and Spain v Commission, paragraph 40). In the present case, that finding is not merely hypothetical, since, as appears in particular from the observations of the Commission, several Member States have since 1995 started to open certain transport markets to competition from undertakings established in other Member States, so that a number of undertakings are already offering their urban, suburban or regional transport services in Member States other than their State of origin. Finally, according to the Court’s case-law, there is no threshold or percentage below which it may be considered that trade between Member States is not affected. The relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (see Tubemeuse, paragraph 43, and Spain v Commission, paragraph 42). The second condition for the application of Article 92(1) of the Treaty, namely that the aid must be capable of affecting trade between Member States, does not therefore depend on the local or regional character of the transport services supplied or on the scale of the field of activity concerned’ (12). |
| --- | --- |

(87)

In its decision to initiate the procedure, the Commission noted in this respect that the Altmark judgment provides that: ‘It is not impossible that a public subsidy granted to an undertaking which provides only local or regional transport services and does not provide any transport services outside its State of origin may none the less have an effect on trade between Member States. Where a Member State grants a public subsidy to an undertaking, the supply of transport services by that undertaking may for that reason be maintained or increased with the result that undertakings established in other Member States have less chance of providing their transport services in the market in that Member State (see, to that effect, Case 102/87 France v Commission [1988] ECR 4067, paragraph 19; Case C-305/89 Italy v Commission [1991] ECR I-1603, paragraph 26; and Spain v Commission, paragraph 40). In the present case, that finding is not merely hypothetical, since, as appears in particular from the observations of the Commission, several Member States have since 1995 started to open certain transport markets to competition from undertakings established in other Member States, so that a number of undertakings are already offering their urban, suburban or regional transport services in Member States other than their State of origin. Finally, according to the Court’s case-law, there is no threshold or percentage below which it may be considered that trade between Member States is not affected. The relatively small amount of aid or the relatively small size of the undertaking which receives it does not as such exclude the possibility that trade between Member States might be affected (see Tubemeuse, paragraph 43, and Spain v Commission, paragraph 42). The second condition for the application of Article 92(1) of the Treaty, namely that the aid must be capable of affecting trade between Member States, does not therefore depend on the local or regional character of the transport services supplied or on the scale of the field of activity concerned’ (12).

12

| (88) | Thus, the Commission comes to the conclusion that the condition that the aid must distort competition and affect trade between Member States is fulfilled in the case at hand. |
| --- | --- |

(88)

Thus, the Commission comes to the conclusion that the condition that the aid must distort competition and affect trade between Member States is fulfilled in the case at hand.

| (89) | Taking into account the abovementioned considerations, the Commission concludes also that the measures put into effect constitute State aid in the meaning of Article 87(1) of the EC Treaty. |
| --- | --- |

(89)

Taking into account the abovementioned considerations, the Commission concludes also that the measures put into effect constitute State aid in the meaning of Article 87(1) of the EC Treaty.

6.3.   Compatibility of the aid

Compatibility of the aid

| (90) | Article 73 of the EC Treaty envisages conditions of compatibility of aid granted in the field of coordination of transport and public service obligation in transport. That Article constitutes a lex specialis with relation to Article 86(2), and Article 87(2) and (3) of the EC Treaty. |
| --- | --- |

(90)

Article 73 of the EC Treaty envisages conditions of compatibility of aid granted in the field of coordination of transport and public service obligation in transport. That Article constitutes a lex specialis with relation to Article 86(2), and Article 87(2) and (3) of the EC Treaty.

lex specialis

| (91) | According to the Altmark judgment (13), Article 73 of the EC Treaty cannot be applied directly but only by virtue of Council Regulations, in particular Council Regulation (EEC) No 1191/69 of 26 June 1969 on action by Member States concerning the obligation inherent in the concept of a public service in transport by rail, road and inland waterway (14). |
| --- | --- |

(91)

According to the Altmark judgment (13), Article 73 of the EC Treaty cannot be applied directly but only by virtue of Council Regulations, in particular Council Regulation (EEC) No 1191/69 of 26 June 1969 on action by Member States concerning the obligation inherent in the concept of a public service in transport by rail, road and inland waterway (14).

13

14

| (92) | Pursuant to Article 1(1) of Regulation (EEC) No 1191/69 it can only be applied with relation to State aid granted to transport operators in rail, road and inland waterways. |
| --- | --- |

(92)

Pursuant to Article 1(1) of Regulation (EEC) No 1191/69 it can only be applied with relation to State aid granted to transport operators in rail, road and inland waterways.

| (93) | However, the Member States may exclude from the scope of that Regulation any undertakings whose activities are confined exclusively to the operation of urban, suburban or regional services. |
| --- | --- |

(93)

However, the Member States may exclude from the scope of that Regulation any undertakings whose activities are confined exclusively to the operation of urban, suburban or regional services.

| (94) | In its decision to initiate the procedure, the Commission already noted that the Czech authorities did not make such an exemption. Therefore, the relevant provisions of Regulation (EEC) No 1191/69 are applicable. |
| --- | --- |

(94)

In its decision to initiate the procedure, the Commission already noted that the Czech authorities did not make such an exemption. Therefore, the relevant provisions of Regulation (EEC) No 1191/69 are applicable.

| (95) | Pursuant to Article 1(4) of Regulation (EEC) No 1191/69, in order to ensure adequate transport services the competent authorities of the Member States may conclude public service contracts with a transport undertaking. |
| --- | --- |

(95)

Pursuant to Article 1(4) of Regulation (EEC) No 1191/69, in order to ensure adequate transport services the competent authorities of the Member States may conclude public service contracts with a transport undertaking.

| (96) | Article 14 of Regulation (EEC) No 1191/69 stipulates that a public service contract is a contract concluded between the competent authorities of a Member State and a transport undertaking in order to provide the public with adequate transport services. |
| --- | --- |

(96)

Article 14 of Regulation (EEC) No 1191/69 stipulates that a public service contract is a contract concluded between the competent authorities of a Member State and a transport undertaking in order to provide the public with adequate transport services.

| (97) | According to Article 14(2) of Regulation (EEC) No 1191/69, a public service contract shall cover, inter alia, the following points:






  (a) | the nature of the service to be provided, notably the standards of continuity, regularity, capacity and quality; |
| --- | --- | --- |

(97)

According to Article 14(2) of Regulation (EEC) No 1191/69, a public service contract shall cover, inter alia, the following points:

inter alia

(a)

the nature of the service to be provided, notably the standards of continuity, regularity, capacity and quality;

| (b) | the price of the services covered by the contract, which shall either be added to tariff revenue or shall include the revenue, and details of financial relations between the two parties; |
| --- | --- |

(b)

the price of the services covered by the contract, which shall either be added to tariff revenue or shall include the revenue, and details of financial relations between the two parties;

| (c) | the rules concerning amendment and modification of the contract, in particular to take account of unforeseeable changes; |
| --- | --- |

(c)

the rules concerning amendment and modification of the contract, in particular to take account of unforeseeable changes;

| (d) | the period of validity of the contract; |
| --- | --- |

(d)

the period of validity of the contract;

| (e) | the penalties in the event of failure to comply with the contract. |
| --- | --- |

(e)

the penalties in the event of failure to comply with the contract.

| (98) | First of all, as already mentioned in the decision to initiate the procedure, the Commission notes that according to Paragraph 19 of the Road Transport Law, ‘the public service obligation in the public line transport arises on the basis of the written contract’ between the relevant authorities and operators. Additionally, the Commission notes that the conditions of providing transport services were not imposed by the authorities but were negotiated and agreed upon between the operators and the regional authorities. Therefore, the Commission comes to the conclusion that despite the wording of the Road Transport Law (public service obligation) the provisions of Section V — ‘Public service contracts’ of Regulation (EEC) No 1191/69 can be applied. |
| --- | --- |

(98)

First of all, as already mentioned in the decision to initiate the procedure, the Commission notes that according to Paragraph 19 of the Road Transport Law, ‘the public service obligation in the public line transport arises on the basis of the written contract’ between the relevant authorities and operators. Additionally, the Commission notes that the conditions of providing transport services were not imposed by the authorities but were negotiated and agreed upon between the operators and the regional authorities. Therefore, the Commission comes to the conclusion that despite the wording of the Road Transport Law (public service obligation) the provisions of Section V — ‘Public service contracts’ of Regulation (EEC) No 1191/69 can be applied.

| (99) | Secondly, the Commission notes that the nature of the service was defined in the contracts both expressis verbis and by reference to the fact that the operators held licences for providing public transport services. |
| --- | --- |

(99)

Secondly, the Commission notes that the nature of the service was defined in the contracts both expressis verbis and by reference to the fact that the operators held licences for providing public transport services.

expressis verbis

| (100) | Thirdly, contracts included price per km and the overall amount of remuneration to be paid for providing the service. |
| --- | --- |

(100)

Thirdly, contracts included price per km and the overall amount of remuneration to be paid for providing the service.

| (101) | Fourthly, the contracts envisaged the conditions and the procedure for their amendment, period of validity and penalties in the case of failure to comply with the contract. |
| --- | --- |

(101)

Fourthly, the contracts envisaged the conditions and the procedure for their amendment, period of validity and penalties in the case of failure to comply with the contract.

| (102) | Therefore, the Commission comes to the conclusion that the basic elements of contract enumerated in the provision of Article 14(2) of Regulation (EEC) No 1191/69 were covered by the contracts concluded with Bítešská, BK Bus, Břežanská společnost, PSOTA, Tredos. |
| --- | --- |

(102)

Therefore, the Commission comes to the conclusion that the basic elements of contract enumerated in the provision of Article 14(2) of Regulation (EEC) No 1191/69 were covered by the contracts concluded with Bítešská, BK Bus, Břežanská společnost, PSOTA, Tredos.

| (103) | Additionally, the Commission first of all notes that the goal of the legislator, when adopting Regulation (EEC) No 1191/69, was to define under which conditions ‘aid [...] which corresponds to the reimbursement of certain obligations inherent in the notion of public services’ mentioned in Article 73 of the Treaty is compatible with the common market. Both the application of Article 73 of the Treaty and the application of Regulation (EEC) No 1191/69 presuppose the existence of an aid in the sense of Article 87(1) of the Treaty. If the content of the contracts can be covered by the notion of Article 73 ‘obligations inherent in the notion of public services’, the form of the instrument, that is contract or unilaterally imposed obligation, should not be, in itself, an obstacle for declaring potential State aid inherent in the contract price compatible with the common market. Indeed, the decisive element for qualifying a service, be it imposed by a Member State or agreed in a contract, as a public service obligation within the meaning of Article 73 must be the substance of the service, not the form in which it is organised (15). |
| --- | --- |

(103)

Additionally, the Commission first of all notes that the goal of the legislator, when adopting Regulation (EEC) No 1191/69, was to define under which conditions ‘aid [...] which corresponds to the reimbursement of certain obligations inherent in the notion of public services’ mentioned in Article 73 of the Treaty is compatible with the common market. Both the application of Article 73 of the Treaty and the application of Regulation (EEC) No 1191/69 presuppose the existence of an aid in the sense of Article 87(1) of the Treaty. If the content of the contracts can be covered by the notion of Article 73 ‘obligations inherent in the notion of public services’, the form of the instrument, that is contract or unilaterally imposed obligation, should not be, in itself, an obstacle for declaring potential State aid inherent in the contract price compatible with the common market. Indeed, the decisive element for qualifying a service, be it imposed by a Member State or agreed in a contract, as a public service obligation within the meaning of Article 73 must be the substance of the service, not the form in which it is organised (15).

15

| (104) | In the light of these considerations, the Commission concludes that from a legal point of view, there is no reason why State aid inherent in the price paid for a public service contract could not be compatible with the common market in accordance with Article 73. The Commission notes that this solution was chosen by the co-legislators in Regulation (EC) No 1370/2007. According to its Article 12, this Regulation will however only enter into force on 3 December 2009. As the present contracts were signed before this date, Regulation (EC) No 1370/2007 is therefore not applicable to them. |
| --- | --- |

(104)

In the light of these considerations, the Commission concludes that from a legal point of view, there is no reason why State aid inherent in the price paid for a public service contract could not be compatible with the common market in accordance with Article 73. The Commission notes that this solution was chosen by the co-legislators in Regulation (EC) No 1370/2007. According to its Article 12, this Regulation will however only enter into force on 3 December 2009. As the present contracts were signed before this date, Regulation (EC) No 1370/2007 is therefore not applicable to them.

| (105) | As Article 14 of Regulation (EEC) No 1191/69 does not contain any precise conditions for declaring State aid inherent in the price paid for a public service contract compatible with the common market, the Commission considers that the general principles derived from the Treaty, the jurisprudence of the Community courts and the Commission’s decision practice in other areas than public transport shall be applied for deciding whether such State aid can be declared compatible with the common market (16). |
| --- | --- |

(105)

As Article 14 of Regulation (EEC) No 1191/69 does not contain any precise conditions for declaring State aid inherent in the price paid for a public service contract compatible with the common market, the Commission considers that the general principles derived from the Treaty, the jurisprudence of the Community courts and the Commission’s decision practice in other areas than public transport shall be applied for deciding whether such State aid can be declared compatible with the common market (16).

16

| (106) | These principles have been recalled by the Commission in a general manner in the Community framework for State aid in the form of public service obligations (17). With respect to the compatibility of State aid inherent in the price paid for a public service contract, this Community framework foresees the following at point 14: ‘The amount of compensation may not exceed what is necessary to cover the costs incurred in discharging the public service obligations, taking into account the relevant receipts and reasonable profit for discharging those obligations. The amount of compensation includes all the advantages granted by the State or through State resources in any form whatsoever’. |
| --- | --- |

(106)

These principles have been recalled by the Commission in a general manner in the Community framework for State aid in the form of public service obligations (17). With respect to the compatibility of State aid inherent in the price paid for a public service contract, this Community framework foresees the following at point 14: ‘The amount of compensation may not exceed what is necessary to cover the costs incurred in discharging the public service obligations, taking into account the relevant receipts and reasonable profit for discharging those obligations. The amount of compensation includes all the advantages granted by the State or through State resources in any form whatsoever’.

17

| (107) | The Commission notes that by pre-establishing in the selection procedure, as described in recitals 12 to 20, that the price the authorities were willing to pay was not more than CZK 26 per km, and subsequently by applying this parameter and adding the unforeseeable costs to calculate the revenues of the carriers, the Southern Moravia authorities ensured that the compensation could not exceed the costs incurred by the operators. |
| --- | --- |

(107)

The Commission notes that by pre-establishing in the selection procedure, as described in recitals 12 to 20, that the price the authorities were willing to pay was not more than CZK 26 per km, and subsequently by applying this parameter and adding the unforeseeable costs to calculate the revenues of the carriers, the Southern Moravia authorities ensured that the compensation could not exceed the costs incurred by the operators.

| (108) | The Commission notes that although the Complainant contested the parameter to calculate the compensation, it did not bring any element showing that the compensation could exceed the costs incurred by the operators. On the contrary, the Complainant argued that the considered amount was rather just a part of the preliminary expert estimate according to which the provable loss should be compensated to the carrier and should even be set at a higher level. |
| --- | --- |

(108)

The Commission notes that although the Complainant contested the parameter to calculate the compensation, it did not bring any element showing that the compensation could exceed the costs incurred by the operators. On the contrary, the Complainant argued that the considered amount was rather just a part of the preliminary expert estimate according to which the provable loss should be compensated to the carrier and should even be set at a higher level.

| (109) | Additionally, with regard to services provided in the Southern Moravia Region, the Commission notes that, apart from the compensations from the regional authorities, the operators did not receive any other advantages from the State or through State resources in the period of 2004-2005. |
| --- | --- |

(109)

Additionally, with regard to services provided in the Southern Moravia Region, the Commission notes that, apart from the compensations from the regional authorities, the operators did not receive any other advantages from the State or through State resources in the period of 2004-2005.

| (110) | Therefore, the Commission considers that the general principles governing the assessment of compatibility of the aid, as described above, are complied with in the case in hand. |
| --- | --- |

(110)

Therefore, the Commission considers that the general principles governing the assessment of compatibility of the aid, as described above, are complied with in the case in hand.

| (111) | As a consequence, the Commission concludes that the aid is compatible with Article 73 of the Treaty. |
| --- | --- |

(111)

As a consequence, the Commission concludes that the aid is compatible with Article 73 of the Treaty.

7.   CONCLUSION

CONCLUSION

| (112) | In the light of the legal assessment, the Commission finds that the Czech Republic has acted in breach of Article 88(3) of the EC Treaty, and therefore unlawfully granted aid under the aid scheme in question. |
| --- | --- |

(112)

In the light of the legal assessment, the Commission finds that the Czech Republic has acted in breach of Article 88(3) of the EC Treaty, and therefore unlawfully granted aid under the aid scheme in question.

| (113) | The Commission considers that the aid granted to Bítešská, BK Bus, Břežanská společnost, PSOTA, Tredos via the public service contracts for road transport in Southern Moravia is compatible with Article 73 of the Treaty, |
| --- | --- |

(113)

The Commission considers that the aid granted to Bítešská, BK Bus, Břežanská společnost, PSOTA, Tredos via the public service contracts for road transport in Southern Moravia is compatible with Article 73 of the Treaty,

HAS ADOPTED THIS DECISION:

Article 1

The State aid which the Czech Republic has implemented through the public service contracts for road transport in Southern Moravia with Bítešská dopravní společnost spol. s r.o., BK BUS s.r.o., Břežanská dopravní společnost s.r.o., Znojemská dopravní společnost — PSOTA, s.r.o. and Tredos, spol. s r.o. is compatible with the common market.

Article 2

This Decision is addressed to the Czech Republic.

Done at Brussels, 26 November 2008.

For the Commission

Antonio TAJANI

Vice-President

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(1)  
  OJ L 83, 27.3.1999, p. 1.

1

(2)  
  OJ C 43, 16.2.2008, p. 19.

2

(3)  See footnote 2.

3

(4)  For the purposes of this Decision, the reference is made to the provisions of the Law in the version applied to the present case.

4

(5)  In Czech law the compensation for public service contracts is equivalent to a notion of provable loss. For a similar case, see also Commission Decision N 495/07 — Czech Republic — Program pořízení a obnovy železničních kolejových vozidel (OJ C 152, 18.6.2008, p. 21).

5

(6)  According to the Czech legislation, losses are the difference between the sum of the economically substantiated costs and the adequate profit on the one hand and the earned receipts and revenue on the other hand.

6

(7)  Judgment of the Court of 24 July 2003, C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkhersgesellschaft Altmark GmbH, and Oberbundesanwalt beim Bundesverwaltungsgericht (2003) E.C.R. I-07747, points 88 to 93.

7

Altmark Trans GmbH and Regierungspräsidium Magdeburg v Nahverkhersgesellschaft Altmark GmbH, and Oberbundesanwalt beim Bundesverwaltungsgericht

(8)  See Commission Decisions: C 16/07 — Austria — Official support for Postbus in the Lienz district (OJ C 162, 14.7.2007, p. 19); C 31/07 — Ireland — State aid to Córas Iompair Éireann Bus Companies (Dublin Bus and Irish Bus) (OJ C 217, 15.9.2007, p. 44); C 47/07 — Germany — DB Regio AG — Contrat de service public (OJ C 35, 8.2.2008, p. 13); C 41/08 — Denmark — Public service contract between the Ministry of Transport and Danske Statsbaner (not yet published).

8

Postbus

Lienz

(9)  Commission Decision C 3/05 — Poland — Restructuring aid to Daewoo-FSO (OJ C 100, 26.4.2005, p. 2, points 40 to 43).

9

(10)  Judgment C-280/00 Altmark, points 87 and 88.

10

(11)  It should be recalled that losses are the difference between the sum of the economically substantiated costs and the adequate profit on the one hand and the earned receipts and revenue on the other hand.

11

(12)  Case C-280/00, Altmark, points 77 to 82.

12

(13)  Case C-280/00, Altmark, cited above.

13

(14)  
  OJ L 156, 28.6.1969, p. 1.

14

(15)  Similarly, Article 4 of Commission Decision 2005/842/EC of 28 November 2005 on the application of Article 86(2) of the EC Treaty to State aid in the form of public compensation granted to certain undertakings entrusted with the operation of services of general economic interest (OJ L 312, 29.11.2005, p. 67) resorts to the concept of an ‘act of entrustment’, the form of which is left to Member States to determine. See also Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) No 1191/69 and (EEC) No 1107/70 (OJ L 315, 3.12.2007, p. 1).

15

(16)  See Commission Decisions: C 16/07 — Austria — Official support for Postbus in the Lienz district; C 31/07 — Ireland — State aid to Córas Iompair Éireann Bus Companies (Dublin Bus and Irish Bus); C 47/07 — Germany — DB Regio AG — Contrat de service public; C 41/08 — Denmark — Public service contract between the Ministry of Transport and Danske Statsbaner.

16

Postbus

Lienz

(17)  
  OJ C 297, 29.11.2005, p. 4.

17

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III Acts adopted under the EU Treaty

ACTS ADOPTED UNDER TITLE VI OF THE EU TREATY

| 16.4.2009 | EN | Official Journal of the European Union | L 97/26 |
| --- | --- | --- | --- |

16.4.2009

EN

Official Journal of the European Union

L 97/26

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Declaration for the purposes of Article 8(3) of Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial

‘Italy hereby declares that it wishes to avail itself of the opportunity offered by Article 8(3) of Framework Decision 2009/299/JHA (1). As a consequence, the Framework Decision shall apply from 1 January 2014 at the latest to the recognition and enforcement of decisions, rendered in the absence of the person concerned at the trial, which are issued by Italian competent authorities.’

1

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(1)  
  OJ L 81, 27.3.2009, p. 24.

1

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Corrigenda

| 16.4.2009 | EN | Official Journal of the European Union | L 97/27 |
| --- | --- | --- | --- |

16.4.2009

EN

Official Journal of the European Union

L 97/27

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Corrigendum to Council Regulation (EC) No 261/2008 of 17 March 2008 imposing a definitive anti-dumping duty on imports of certain compressors originating in the People’s Republic of China

(
  Official Journal of the European Union L 81 of 20 March 2008
  )

On page 2, recital 13, first indent of point (b), on page 6, recital 54, first column, fifth entry of the table, on page 18, recital 140, first column, fifth entry of the table, and on page 19, Article 1(2), column ‘Company’, fifth entry of the table:

for:

‘Nu Air (Shanghai) Compressor and Tools Co., Ltd ...’,

read:

‘Nu Air (Shanghai) Compressors and Tools Co., Ltd ...’.

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