title: Commission Implementing Regulation (EU) 2015/1831 of 7 October 2015 laying down rules for application of Regulation (EU) No 1144/2014 of the European Parliament and of the Council on information provision and promotion measures concerning agricultural products implemented in the internal market and in the third countries

text:
               13.10.2015

               EN

               Official Journal of the European Union

               L 266/14

         COMMISSION IMPLEMENTING REGULATION (EU) 2015/1831
   of 7 October 2015
   laying down rules for application of Regulation (EU) No 1144/2014 of the European Parliament and of the Council on information provision and promotion measures concerning agricultural products implemented in the internal market and in the third countries
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to regard to Regulation (EU) No 1144/2014 of the European Parliament and of the Council of 22 October 2014 on information provision and promotion measures concerning agricultural products implemented in the internal market and in third countries and repealing Council Regulation (EC) No 3/2008 (1), and in particular Article 4(3), the second subparagraph of Article 13(2), the second subparagraph of Article 14(1) and Article 25 thereof,
   Whereas:

               (1)

               Regulation (EU) No 1144/2014 repealed Council Regulation (EC) No 3/2008 (2) and lays down new rules on information provision and promotion measures concerning agricultural products implemented in the internal market and in third countries. It also empowers the Commission to adopt delegated and implementing acts in that respect. In order to ensure that the new legal framework functions smoothly and applies uniformly, certain rules have to be adopted by means of such acts. Those acts should replace Commission Regulation (EC) No 501/2008 (3) which is repealed by Commission Delegated Regulation (EU) 2015/1829 (4).

               (2)

               Information provision and promotion measures should not be origin-oriented. Nevertheless, pursuant to Article 4(2) of Regulation (EU) No 1144/2014, it is possible to mention the origin of the products under certain conditions. Rules should be laid down to ensure notably that the reference to origin does not undermine the main Union message of a programme.

               (3)

               To avoid any risk of confusion in the mind of the targeted audience as to the difference between a generic campaign referring to origin and a campaign referring to specific products registered under the Union quality schemes with a protected geographical indication, reference to origin should be limited to national origin only. Nevertheless, taking into account the list of eligible schemes laid down in Article 5(4) of Regulation (EU) No 1144/2014, it should be possible to indicate origin in terms other than national origin for those specific schemes. In addition, it should be possible to mention a supranational origin, such as Nordic, Alpines or Mediterranean as it corresponds to a pan European common reference.

               (4)

               Information provision and promotion measures should not be brand-oriented. Nevertheless, pursuant to Article 4(1) of Regulation (EU) No 1144/2014, it is possible to mention the brands of the products during certain operations and under certain conditions. The display of brands should be limited to demonstrations and tastings, namely to activities specifically designed to increase sales, and to the corresponding information and promotion material displayed during those specific activities. Rules should be established to ensure that each brand is equally visible and its graphic presentation is smaller than the presentation of the main Union message of the campaign. In order to ensure that the non-brand-oriented nature of the measures remains unchanged, rules should be laid down to ensure that several brands are displayed, except in duly justified circumstances, and that the surface dedicated to brands is limited to a maximum percentage of the area of communication.

               (5)

               Regulation (EU) No 1144/2014 allows proposing organisations to implement certain parts of their programmes. The rules for the application of those provisions should be laid down.

               (6)

               Simple programmes are to be implemented in shared management between the Member States and the Union in accordance with Regulation (EU) No 1306/2013 of the European Parliament and of the Council (5), while multi programmes are to be financed under direct management rules in accordance with Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (6). As the same proposing organisation could have both simple and multi programmes, the implementation rules for both programmes should differ as little as possible. To that end, simple programmes should be subject to rules that are equivalent to those provisions of Regulation (UE, Euratom) No 966/2012 concerning grants which apply to multi- programmes such as, for example, the absence of a requirement to lodge a security to ensure satisfactory performance of the contract.

               (7)

               Member States are responsible for the proper implementation of the simple programmes selected by the Commission. Provision should be made for the designation of the national authorities responsible for implementing this Regulation. In order to ensure uniform conditions, the rules concerning conclusion of contracts for the implementation of the selected simple programmes should be laid down. To that end, a model contract should be provided to the Member States by the Commission and a reasonable time limit for the conclusion of contracts should be set. However, in view of the different types of measures that may be provided for within a programme, flexibility with regard to the starting date of the implementation of the programme should be provided.

               (8)

               In the interest of sound financial management, proposing organisations and implementing bodies should be obliged to keep records and other supporting documentation necessary to prove the correct implementation of the programme and the eligibility for Union funding of the costs declared.

               (9)

               Member States should control the implementation of simple programmes in accordance with Regulation (EU) No 1306/2013. They should also be required to approve the selection of the implementing body before concluding the contract with the proposing organisation concerned and to check any application for payments before any payment is made. Save for an application for a payment of an advance, all applications for payment should include a financial report declaring and specifying the eligible costs incurred by the proposing organisation, a report on technical execution of the programme and, in addition an evaluation report for applications for the payment of the balance.

               (10)

               With a view to simplification and to reducing the administrative burden, the periods to which the interim reports and the corresponding payment applications relate should be set to one year. Moreover, a certificate on the financial statements, issued by an independent and qualified auditor, should be submitted when the reimbursement for certain amounts is requested. The certificate should provide evidence to the Member States as regards the eligibility of the costs declared.

               (11)

               In order to enable Member States to verify if the material produced in the context of the implementation of a programme complies with Union law as set out in Article 14(1) of Regulation (EU) No 1144/2014, and in particular that provisions concerning the main Union message, mention of origin and display of brands have been applied, a provision requiring the submission of the material used, including the visuals, to the Member State, should be laid down.

               (12)

               In order to provide proposing organisations with a float, arrangements for the payment of advances should be laid down. To protect the Union's financial interests effectively, payment of the advance should be subject to a security. This security should remain in force until the payment of the balance when the advance is cleared. Since proposing organisations established in the Member States receiving financial assistance may face difficulties providing a security for the entire amount that may be advanced, specific provision should be laid down to allow them to get advances in two parts.

               (13)

               In the interests of sound financial management, provisions should be laid down requiring that advances and intermediate payments remain below the total Union contribution with a safety margin.

               (14)

               In the light of experience, the content of on-the-spot checks to be carried out by the Member States and in particular their frequency, scope and location should be determined. It is thus appropriate to require that each programme should be subject to an on-the-spot check at least once during its implementation. Taking into account the fact that information and promotion activities are implemented at different times and are often of limited duration and the fact that certain programmes are implemented outside the Member State of origin of the proposing organisation or outside the Union, on-the-spot-checks should be carried out in the premises of the proposing organisations and, if appropriate, in the premises of the implementing body.

               (15)

               Interest rate in case of undue payments should be aligned to the corresponding interest rate applicable to multi programmes.

               (16)

               In order to assess the effectiveness and efficiency of information and promotion programmes, provisions should be laid down requiring appropriate monitoring and evaluation of the programmes as well as of the overall performance of the promotion policy by both proposing organisations and Member States.

               (17)

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

         HAS ADOPTED THIS REGULATION:
   CHAPTER I

      GENERAL PROVISIONS

   Article 1
   Subject matter
   This Regulation lays down implementing rules for the application of Regulation (EU) No 1144/2014 as regards the visibility of origin and brands in simple and multi programmes as well as rules under which a proposing organisation may be authorised to implement certain parts of a simple programme.
   It also lays down specific rules for the conclusion of contracts, management, monitoring and controls for simple programmes and a system of indicators for the assessment of the impact of information and promotion programmes.
   CHAPTER II

      COMMON PROVISIONS FOR SIMPLE AND MULTI PROGRAMMES

      SECTION 1

      Visibility of origin

   Article 2
   General requirements for mention of the origin in all information and promotional material
   1.   The main message of the programme shall be a Union message and shall not focus on a specific origin.
   2.   Any mention of origin shall fulfil the following cumulative conditions:

               (a)

               it shall not amount to a restriction of the free movement of agricultural and food products in breach of Article 34 of the Treaty on the Functioning of the European Union;

               (b)

               it shall not encourage consumers to buy domestic goods solely by virtue of their origin and shall refer to the particular properties of the product rather than the sole origin; and

               (c)

               it shall complement the main Union message.

         3.   The main Union message of the programme shall not be obscured by material related to the origin of the product, such as pictures, colours, symbols or music. The mention of origin shall appear in a separate area from that devoted to the main Union message.
   4.   The mention of origin on information and promotional material shall be limited to visual material. No mention of the origin shall be made in audio material.
   Article 3
   Specific mention of the origin on information and promotional material as referred to in points (a) and (b) of Article 4(2) of Regulation (EU) No 1144/2014
   1.   The mention of origin on information and promotional material, as referred to in points (a) and (b) of Article 4(2) of Regulation (EU) No 1144/2014, shall be limited to the national origin, namely the name of the Member State, or to a common supra-national origin. The mention of origin may be explicit or implicit.
   2.   The conditions set out in points (a) and (b) of Article 4(2) of Regulation (EU) No 1144/2014 shall be complied with and account shall be taken of the prominence of the text or symbol, including pictures and general presentation, which refers to the origin as compared with the importance of the text or symbol which refers to the main Union message of the programme.
   Article 4
   Mention of the origin on information and promotional material referring to schemes eligible under points (c) and (d) of Article 5(4) of Regulation (EU) No 1144/2014
   1.   Information provision and promotion measures mentioning schemes eligible under point (c) of Article 5(4) of Regulation (EU) No 1144/2014 may mention the name of the outermost regions in the related graphic symbols, provided that the conditions set out in Commission Delegated Regulation (EC) No 179/2014 (7) are fulfilled and in the related visual materials provided that they fulfil the conditions set out in points (a) and (b) of Article 4(2) of Regulation (EU) No 1144/2014.
   2.   By way of derogation from Article 3(1), information provision and promotion measures mentioning schemes eligible under point (d) of Article 5(4) of Regulation (EU) No 1144/2014 which refer to the origin in their name may mention that specific origin, provided that they fulfil the conditions set out in points (a) and (b) of Article 4(2) of Regulation (EU) No 1144/2014.

      SECTION 2

      Visibility of brands

   Article 5
   General requirements
   1.   Brands as referred to in Article 4 of Regulation (EU) No 1144/2014 shall be understood as trade-marks as defined in Articles 4 and 66 of Council Regulation (EC) No 207/2009 (8) or in Article 2 of Directive 2008/95/EC of the European Parliament and of the Council (9).
   2.   Brands of promoted products of the proposing organisations shall only be visible during demonstrations and tastings.
   The following definitions shall apply:

               (a)

               ‘demonstrations’ means all means of demonstrating the merits of a product or a scheme to a prospective customer to encourage the purchase of the product during fairs or business-to-business events and on websites;

               (b)

               ‘tastings’ means any activity where a product can be tasted by a prospective customer during fairs or business-to-business events and on point of sales.

         3.   Brands may also be visible on the information and promotional material displayed or distributed during demonstrations and tastings.
   4.   The proposing organisations displaying brands shall comply with the following conditions:

               (a)

               they shall justify in the programme application why the mention of brands is necessary to meet the objectives of the campaign and confirm that the display of brands is limited to demonstrations and tastings;

               (b)

               they shall keep evidence that all members of the proposing organisation concerned have been given an equal opportunity to display their brands;

               (c)

               they shall ensure that:

                           (i)

                           brands are displayed together in an equally visible manner, in an area separate from that devoted to the main Union message;

                           (ii)

                           the display of brands does not weaken the main Union message;

                           (iii)

                           the main Union message is not obscured by the display of branded material such as pictures, colours, symbols;

                           (iv)

                           the display of brands is limited to visual material excluding gadgets and mascots, in a smaller format than the main Union message. No mention of brands shall be made in audio material.

         Article 6
   Specific requirements
   1.   During demonstrations and tastings, brands may only be displayed:

               (a)

               together in a banner located on the front of the counter of the stand or equivalent support. That banner shall not exceed 5 % of the total surface area of the front of the counter of the stand or equivalent support; or

               (b)

               individually, in separate and identical booths in a neutral and identical way, on the front of the counter of the booth or equivalent support for each brand. In that case, the display of the brand name shall not exceed 5 % of the total surface area of the front of the counter of the booth or equivalent support.

         2.   For websites, brands may only be displayed together in either of the following two ways:

               (a)

               in a banner located at the bottom of the webpage, which shall not exceed 5 % of the total surface area of the webpage, where each brand shall be smaller than the emblem of the Union referring to the co-financing of the Union;

               (b)

               on a dedicated webpage distinct from the home page, in a neutral and identical way for each brand.

         3.   For the printed material distributed during demonstrations or tastings, brands may only be displayed together in one banner at the bottom of the page which shall not exceed 5 % of the total surface area of that page.
   Article 7
   Number of brands to be displayed
   1.   A minimum of five brands shall be displayed.
   2.   By way of derogation from paragraph 1, less than five brands may be displayed provided that the following two conditions are fulfilled:

               (a)

               there are fewer brands from the Member State of origin of the proposing organisation for the product or scheme subject of the programme;

               (b)

               for duly justified reasons, it has not been possible to organize a multi–product or multi-country programme permitting more brands to be displayed.

         3.   The fulfilment of the conditions referred to in paragraph 2 shall be duly justified by the proposing organisation and supported by all necessary documents, including evidence that other proposing organisations were contacted and a proposal was made to them by the proposing organisation concerned that they should together establish a multi-product or multi-country programme and reasons why such a programme was not achieved.
   4.   Where less than five brands are displayed, the rules set out in Article 6 shall apply and the surface area allocated to brands shall be reduced proportionally.
   Article 8
   Mention of schemes eligible under point (d) of Article 5(4) of Regulation (EU) No 1144/2014 which are registered as a trade mark
   Where the programme concerns a scheme as referred to in point (d) of Article 5(4) of Regulation (EU) No 1144/2014, Articles 5, 6 and 7 shall not apply to the names and logos of those schemes which are registered as trademarks.
   CHAPTER III

      MANAGEMENT OF SIMPLE PROGRAMMES

      SECTION 1

      Implementation and financing of programmes

   Article 9
   Designation of the competent authorities
   Member States shall designate the competent national authorities responsible for implementing this Regulation.
   They shall notify the Commission of the name and full details of the authorities designated and any changes thereto.
   The Commission shall make that information available to the public in an appropriate form.
   Article 10
   Conclusion of contracts
   1.   As soon as the Commission adopts an implementing act referred to in Article 11(2) of Regulation (EU) No 1144/2014, it shall forward the copies of the selected programmes to the Member States concerned.
   2.   Member States shall without delay inform the proposing organisations concerned whether or not their applications have been accepted.
   3.   Member States shall conclude contracts for the implementation of programmes with the selected proposing organisations within 90 calendar days of the notification of the Commission act referred to in Article 11(2) of Regulation (EU) No 1144/2014 provided that the implementing bodies referred to in Article 13 of that Regulation have been selected in accordance with the procedure provided for in Article 2 of Delegated Regulation (EU) 2015/1829. Beyond that deadline, no contracts may be concluded without prior authorisation from the Commission.
   4.   The starting date of the implementation of the programme shall be the first day of the month following the date of signature of the contract. However, the starting date may be postponed for up to 6 months, in particular to take into account the seasonality of the product concerned by the programme or participation in a specific event or fair.
   5.   Member States shall use the model contracts provided by the Commission.
   6.   Where appropriate, Member States may amend certain terms in the model contracts in order to comply with their national law, provided that this does not infringe Union legislation.
   Article 11
   Implementation of the programmes by the proposing organisations
   A proposing organisation may implement certain parts of a simple programme itself, subject to the following conditions:

               (a)

               the proposing organisation has at least three years' experience in implementing information provision and promotion measures; and

               (b)

               the proposing organisation ensures that the cost of the measure which it plans to carry out itself is not in excess of the normal market rates.

         Article 12
   Obligations with regard to information and records
   1.   Proposing organisations shall keep information up to date and shall inform the Member State concerned about events and circumstances which are likely to affect significantly the implementation of the programme or the Union's financial interests.
   2.   Proposing organisations and implementing bodies shall keep records and other supporting documentation which prove the proper implementation of the programme and the costs declared as eligible, in particular the following:

               (a)

               for actual costs: adequate records and other supporting documentation to prove the costs declared, such as contracts, subcontracts, invoices and accounting records. The cost accounting practices and internal control procedures shall enable direct reconciliation between the amounts declared, the amounts recorded in their accounts and the amounts stated in the supporting documentation.
               As regards personnel costs, the proposing organisation and implementing bodies shall keep time records for the number of hours declared. In the absence of reliable time records of the hours worked on the action, the Member Sate may accept alternative evidence supporting the number of hours declared, if it considers that it offers an adequate level of assurance.
               For persons working exclusively on the programme, keeping time records shall not be required but a signed declaration confirming that the persons concerned have worked exclusively on the action;

               (b)

               for flat-rate costs: adequate records and other supporting documentation to prove the eligibility of the costs on the basis of which the flat-rate is calculated.

         Article 13
   Payment of the advance
   1.   Within 30 days from the date that the contract referred to in Article 10 has been signed, the proposing organisation may submit an application for an advance payment to the Member State concerned, together with the security provided for in paragraph 2 of this Article.
   2.   The advance shall be paid on condition that the proposing organisation has lodged a security equal to the amount of that advance in favour of the Member State in accordance with Chapter IV of Commission Delegated Regulation (EU) No 907/2014 (10).
   3.   An advance payment shall amount to no more than 20 % of the maximum Union financial contribution, as referred to in Article 15 of Regulation (EU) No 1144/2014.
   4.   The Member State shall make payment of an advance either within 30 days from the date of the receipt of the security provided for in paragraph 2 or within 30 days from the date which is 10 days before the starting date of the implementation of the programme, whichever is the latest.
   5.   The advance shall be cleared at payment of the balance.
   6.   By way of derogation from paragraphs 1 and 5 of this Article, proposing organisations established in Member States receiving financial assistance pursuant to Article 15(3) of Regulation (EU) No 1144/2014 may make their application for an advance payment into two parts. Applicants choosing to avail of this option shall apply for the first part of their advance payment within the deadline provided for in paragraph 1 of this Article. An application for the remaining part of the advance may only be submitted after the first part of the advance has been cleared.
   Article 14
   Application for interim payments
   1.   Except for the last year of implementation of the programme, applications for an interim payment of the Union's financial contributions shall be submitted by the proposing organisation to the Member States within 60 days from the date on which the implementation of a year of the programme has been completed.
   2.   Such applications shall cover the eligible costs incurred during the year concerned and shall be accompanied by an interim report comprising a periodic financial report and a periodic technical report.
   3.   The periodic financial report referred to in paragraph 2 shall comprise:

               (a)

               a financial statement from each proposing organisation detailing the eligible costs included in the programme and accompanied by a declaration certifying that:

                           —

                           the information provided is complete, reliable and true;

                           —

                           the costs declared are eligible in accordance with Article 4 of Delegated Regulation (EU) 2015/1829;

                           —

                           the costs can be substantiated by adequate records and supporting documentation that will be produced upon request or in the context of checks provided for in this Regulation;

               (b)

               a certificate on the financial statements produced by an approved external auditor for the proposing organisation concerned, where the Union's financial contribution to the actual costs of the programme is EUR 750 000 or more, and the amount of the Union's financial contribution to the actual costs requested by way of interim payment is EUR 325 000 or more. The certificate shall provide evidence of the eligibility of the costs proposed in accordance with Article 4 of Delegated Regulation (EU) 2015/1829 and on compliance with the obligations set out in Article 12(2) of this Regulation.

               (c)

               copies of the relevant invoices and supporting documents proving the eligibility of the costs where the certificate referred to in point (b) is not required.

         4.   The periodic technical report referred to in paragraph 2 shall contain:

               (a)

               copies of all the material and visuals used which have not been already forwarded to the Member State;

               (b)

               a description of the activities carried out in the period to which the interim payment relates, that shall use the output and result indicators of the programme referred to in Article 22; and

               (c)

               justification for any differences between the activities planned in the programme and their expected outputs and results to those actually carried out or obtained.

         Article 15
   Application for payment of the balance
   1.   Applications for payment of the balance shall be submitted by the proposing organisation to the Member State within 90 days of the completion of the programme covered by the contract referred to in Article 10.
   2.   The application shall be considered admissible if it is accompanied by a final interim report, a final report and a study evaluating the results of the promotional and information measures.
   3.   The final interim report referred to in paragraph 2 shall concern the last year of implementation of the programme. In their financial statements, proposing organisations shall certify that all the receipts have been declared.
   4.   The final report referred to in paragraph 2 shall comprise:

               (a)

               a final financial report containing a final summary financial statement, drawn up by the proposing organisation, consolidating financial statements for all interim payments and showing all expenditure incurred;

               (b)

               a final technical report containing:

                           (i)

                           an overview of the activities carried out and the outputs and results of the programme using the indicators referred to in Article 22; and

                           (ii)

                           a summary for publication.

         5.   The study evaluating the results of the promotional and information measures referred to in paragraph 2 shall be undertaken by an independent external body. That body shall use the indicators referred to in Article 22.
   Article 16
   Payments by the Member State
   1.   The interim payments and the advance payments referred to in Articles 13 and 14 taken together shall not exceed 90 % of the Union's total financial contribution referred to in Article 15 of Regulation (EU) No 1144/2014.
   2.   Member States shall make the payments referred to in Articles 14 and 15 within 60 days from the receipt of the application for payment provided that all checks have been carried out in accordance with this Regulation.
   3.   Where further administrative or on-the-spot checks referred to in Articles 19 and 20 are necessary, the deadline referred to in paragraph 2 may be extended by a Member State by notifying the proposing organisation.
   Article 17
   Rejection of ineligible costs and recovery of undue payments
   1.   At the time of an interim payment, of the final payment or after these payments have been made, Member States shall reject any costs that are considered ineligible, in particular following checks provided for in this Regulation.
   2.   The proposing organisation shall reimburse undue payment in accordance with Section 1 of Chapter III of Commission Implementing Regulation (EU) No 908/2014 (11).
   The interest rate laid down in Article 83(2)(b) of Commission Delegated Regulation (EU) No 1268/2012 (12) shall apply.

      SECTION 2

      Control of the implementation of the programmes and notifications by Member States

   Article 18
   Checks on the selection procedure of the implementing bodies
   Before signing the contract referred to in Article 10, Member States shall check that the implementing bodies have been selected in accordance with the competitive procedure provided for in Article 2 of Delegated Regulation (EU) 2015/1829.
   Article 19
   Administrative checks of simple programmes
   1.   During administrative checks Member States shall systematically verify the payment applications, in particular the reports accompanying the applications and the eligibility of the costs pursuant to Article 4 of Delegated Regulation (EU) 2015/1829.
   2.   Member States shall request any additional information deemed necessary and, if appropriate, carry out further checks, in particular when:

               (a)

               the requested reports have not been submitted or are not complete;

               (b)

               the administrative review of the certificate on the financial statements does not provide adequate evidence on the eligibility of the costs pursuant to Article 4 of Delegated Regulation (EU) 2015/1829 and on compliance with the obligations referred to in Article 12(2) of this Regulation; or

               (c)

               there is a doubt about the eligibility of the costs declared in the financial statements.

         Article 20
   On-the-spot checks of simple programmes
   1.   Member States shall select the payment applications to be checked on the basis of a risk analysis.
   The selection shall be made in such a way as to ensure that each simple programme is subjected to on-the-spot checks at least once during its implementation between the first interim payment and the payment of the balance.
   2.   On-the-spot checks shall consist of technical and accounting checks at the premises of the proposing organisation and, if appropriate, of the implementing body. Member States shall verify that:

               (a)

               the information and the documents submitted are accurate;

               (b)

               the costs have been declared in accordance with Article 4 of Delegated Regulation (EU) 2015/1829 and with Article 12(2) of this Regulation;

               (c)

               all the obligations laid down in the contract referred to in Article 10 have been fulfilled;

               (d)

               Articles 10 and 15 of Regulation (EU) No 1144/2014 have been complied with.

         Without prejudice to Commission Regulation (EC) No 1848/2006 (13), Member States shall inform the Commission at the earliest opportunity of any irregularities detected during the checks.
   On-the-spot checks may be limited to a sample covering at least 30 % of the eligible costs. Such sample shall be reliable and representative.
   Where any non-compliance is detected, the Member State shall check all the documents relating to the costs declared or the results of the sample shall be extrapolated.
   3.   Member States shall draw up a report covering each on-the-spot-check. That report shall clearly specify the scope and results of the checks carried out.
   Article 21
   Notifications to the Commission concerning simple programmes
   1.   With respect to all payments made for simple programmes, by 15 July of each year, Member States shall notify the Commission of the following data covering the previous calendar year relating to:

               (a)

               the financial execution and the output indicators as referred to in Article 22;

               (b)

               the impact of the programmes assessed using the system of indicators referred to in Article 22;

               (c)

               the results of administrative and on-the-spot checks carried out in accordance with Articles 19 and 20.

         2.   Such notification shall be made by electronic means using the technical specifications for the transfer of data made available by the Commission.
   CHAPTER IV

      FINAL PROVISIONS

   Article 22
   System of indicators for the assessment of the impact of information and promotion programmes
   1.   This Regulation establishes a common framework for assessing the impact of information and promotion programmes based on a system of indicators. That system shall comprise the following three sets of performance indicators: output, result and impact indicators.

               (a)

               Output indicators shall measure the degree of implementation of the activities foreseen in each programme.

               (b)

               Result indicators shall measure the direct and immediate effects of the activities.

               (c)

               Impact indicators shall measure the benefits beyond the immediate effects.

         2.   Each proposal for an information and promotion programme submitted by the proposing organisation to the Commission shall specify what indicators from each set of performance indicators will be used for assessing the impact of that programme. The proposing organisation shall, where relevant, use the indicators set out in the Annex or may use other indicators if it can show that due to the nature of the programme concerned those indicators are more appropriate.
   Article 23
   Entry into force
   This Regulation shall enter into force on the seventh day following that of its publication in the Official Journal of the European Union.
   It shall apply from 1 December 2015 to the proposals of programmes submitted as from 1 December 2015.

      This Regulation shall be binding in its entirety and directly applicable in all Member States.
      Done at Brussels, 7 October 2015.

            For the Commission

            The President

         Jean-Claude JUNCKER

      (1)  OJ L 317, 4.11.2014, p. 56.

      (2)  Council Regulation (EC) No 3/2008 of 17 December 2007 on information provision and promotion measures for agricultural products on the internal market and in third countries (OJ L 3, 5.1.2008, p. 1).

      (3)  Commission Regulation (EC) No 501/2008 of 5 June 2008 laying down detailed rules for the application of Council Regulation (EC) No 3/2008 on information provision and promotion measures for agricultural products on the internal market and in third countries (OJ L 147, 6.6.2008, p. 3).

      (4)  Commission Delegated Regulation (EU) 2015/1829 of 23 April 2015 supplementing Regulation (EU) No 1144/2014 of the European Parliament and of the Council on information provision and promotion measures concerning agricultural products implemented in the internal market and in third countries (see page 3 of this Official Journal).

      (5)  Regulation (EU) No 1306/2013 of the European Parliament and of the Council of 17 December 2013 on the financing, management and monitoring of the common agricultural policy and repealing Council Regulations (EEC) No 352/78, (EC) No 165/94, (EC) No 2799/98, (EC) No 814/2000, (EC) No 1290/2005 and (EC) No 485/2008 (OJ L 347, 20.12.2013, p. 549).

      (6)  Regulation (UE, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012, p. 1).

      (7)  Commission Delegated Regulation (EU) No 179/2014 of 6 November 2013 supplementing Regulation (EU) No 228/2013 of the European Parliament and of the Council with regard to the register of operators, the amount of aid for the marketing of products outside the region, the logo, the exemption from import duties for certain bovine animals and the financing of certain measures relating to specific measures for agriculture in the outermost regions of the Union (OJ L 63, 4.3.2014, p. 3).

      (8)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ L 78, 24.3.2009, p. 1).

      (9)  Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ L 299, 8.11.2008, p. 25).

      (10)  Commission Delegated Regulation (EU) No 907/2014 of 11 March 2014 supplementing Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to paying agencies and other bodies, financial management, clearance of accounts, securities and use of euro (OJ L 255, 28.8.2014, p. 18).

      (11)  Commission Implementing Regulation (EU) No 908/2014 of 6 August 2014 laying down rules for the application of Regulation (EU) No 1306/2013 of the European Parliament and of the Council with regard to paying agencies and other bodies, financial management, clearance of accounts, rules on checks, securities and transparency (OJ L 255, 28.8.2014, p. 59).

      (12)  Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ L 362, 31.12.2012, p. 1).

      (13)  Commission Regulation (EC) No 1848/2006 of 14 December 2006 concerning irregularities and the recovery of sums wrongly paid in connection with the financing of the common agricultural policy and the organisation of an information system in this field and repealing Council Regulation (EEC) No 595/91 (OJ L 355, 15.12.2006, p. 56).

      ANNEX

         List of indicators for the assessment of the impact of information and promotion programmes referred to in Article 22

      The system of indicators related to actions undertaken by the proposing organisations under information and promotion programmes does not necessarily capture all the factors that may intervene and affect the outputs, results and impact of an operational programme. In this context, the information provided by indicators should be interpreted in the light of quantitative and qualitative information relating to other key factors contributing to the success or failure of the programme's implementation.

                  1.

                     Output indicators include, for example:

                              —

                              number of events organised;

                              —

                              number of spots aired on TV/radio or published print or online adds;

                              —

                              number of press releases;

                              —

                              size of target group aimed by specific activities (for example number of professionals to whom mail shots were addressed);

                              —

                              number of subscribers to e-mail newsletters.

                  2.

                     Results indicators include, for example:

                              —

                              number of professionals/experts/importers/consumers who participated in events (such as seminars, workshops, tastings, etc.);

                              —

                              number of professionals/experts/importers/consumers who were reached by a TV/radio spot/print or online add;

                              —

                              number of professionals/experts/importers/consumers who participated in events and contacted the producers organisation/the producers;

                              —

                              number of non-paid articles published in the press within the period covered by the report of the information campaign;

                              —

                              number of visitors on the website or likes on their Facebook-site;

                              —

                              value of media clippings.

                  3.

                     Impact indicators include, for example:

                              —

                              sales trends of the sector in the year following the promotion campaigns in the region in which they took place compared with the previous year and compared with the general sales trends on the market in question;

                              —

                              consumption trends for the product in that country;

                              —

                              value and volume of Union exports of the product promoted;

                              —

                              change in the Union products market share;

                              —

                              trend in the average sales price of the exported product in the country in which the campaigns took place;

                              —

                              change in the level of recognition of the logos of the Union quality schemes;

                              —

                              change in the image of Union quality products;

                              —

                              increase in awareness of intrinsic values/other merits of Union agricultural products as listed in Article 3(a) of Regulation (EU) No 1144/2014;

                              —

                              increase in consumer confidence following the implementation of the programme;

                              —

                              return on investment (ROI).


title: Council Implementing Regulation (EU) No 260/2013 of 18 March 2013 extending the definitive anti-dumping duty imposed by Regulation (EC) No 1458/2007 on imports of gas-fuelled, non-refillable pocket flint lighters originating in the People’s Republic of China to imports of gas-fuelled, non-refillable pocket flint lighters consigned from the Socialist Republic of Vietnam, whether declared as originating in the Socialist Republic of Vietnam or not

text:
               22.3.2013

               EN

               Official Journal of the European Union

               L 82/10

         COUNCIL IMPLEMENTING REGULATION (EU) No 260/2013
   of 18 March 2013
   extending the definitive anti-dumping duty imposed by Regulation (EC) No 1458/2007 on imports of gas-fuelled, non-refillable pocket flint lighters originating in the People’s Republic of China to imports of gas-fuelled, non-refillable pocket flint lighters consigned from the Socialist Republic of Vietnam, whether declared as originating in the Socialist Republic of Vietnam or not
   THE COUNCIL OF THE EUROPEAN UNION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (1), and in particular Article 13 thereof,
   Having regard to the proposal from the European Commission after consulting the Advisory Committee,
   Whereas:
   1.   PROCEDURE

   1.1.   Background

               (1)

               In 1991, the Council, by Regulation (EEC) No 3433/91 (2), imposed a definitive anti-dumping duty of 16,9 % on imports of gas-fuelled, non-refillable pocket flint lighters originating, inter alia, in the People’s Republic of China (‘PRC’) (the product under investigation).

               (2)

               In 1995, by Council Regulation (EC) No 1006/95 (3) the original ad valorem duty was replaced by a specific duty of ECU 0,065 per lighter.

               (3)

               Further to an investigation, undertaken in accordance with Article 13 of Regulation (EC) No 1225/2009 (the ‘basic Regulation’), the above measures were extended by Council Regulation (EC) No 192/1999 (4) to (1) imports of gas-fuelled, non-refillable pocket flint lighters consigned from or originating in Taiwan and (2) imports of certain refillable lighters originating in the PRC or consigned from or originating in Taiwan with a free-at-Community frontier, duty unpaid value per piece below EUR 0,15.

               (4)

               In 2001, the Council, by Regulation (EC) No 1824/2001 (5), confirmed the definitive anti-dumping duties imposed by Regulation (EC) No 1006/95 as extended by Regulation (EC) No 192/1999 (‘existing measures’) pursuant to Article 11(2) of the basic Regulation.

               (5)

               In 2007, the Council, by Regulation (EC) No 1458/2007 (6) (‘the original Regulation’), confirmed the definitive anti-dumping duty imposed by Regulation (EC) No 1824/2001 pursuant to Article 11(2) of the basic Regulation. These measures will hereinafter be referred to as ‘the original measures’ and the investigation that led to the measures imposed by the original Regulation will be hereinafter referred to as ‘the original investigation’.

               (6)

               The Commission, on 12 December 2012 (7), published a notice of expiry of the anti-dumping measures.

               (7)

               With the expiry of the measures on 13 December 2012, by Commission Regulation (EU) No 1192/2012 (8), the registration of imports of gas-fuelled, non-refillable pocket flint lighters consigned from Vietnam, whether declared as originating in Vietnam or not, was therefore discontinued from the same date (see also recital 14).

         1.2.   Request

               (8)

               On 17 April 2012, the Commission received a request pursuant to Articles 13(3) and 14(5) of the basic Regulation (‘the request’) to investigate the possible circumvention of the anti-dumping measures imposed on imports of gas-fuelled, non-refillable pocket flint lighters originating in the PRC and to make imports of gas-fuelled, non-refillable pocket flint lighters consigned from the Socialist Republic of Vietnam (‘Vietnam’), whether declared as originating in Vietnam or not, subject to registration.

               (9)

               The request was lodged by Société BIC, a Union producer of gas-fuelled, non-refillable pocket flint lighters.

               (10)

               The request contained sufficient prima facie evidence that the original measures were being circumvented by means of assembly operations in Vietnam.

               (11)

               The request showed that following the imposition of the original measures, a significant change in the pattern of trade involving exports from the PRC and Vietnam to the Union occurred, for which there was insufficient due cause or economic justification other than the imposition of the original measures. This change in the pattern of trade stemmed allegedly from the assembly operations of lighters in Vietnam using parts originating in the PRC.

               (12)

               Furthermore, the prima facie evidence pointed to the fact that the remedial effects of the original measures were being undermined both in terms of quantity and price. The evidence showed in particular that the increased imports from Vietnam were made at prices below the non-injurious price established in the original investigation.

               (13)

               Finally, there was also sufficient prima facie evidence that prices of gas-fuelled, non-refillable pocket flint lighters consigned from Vietnam were dumped in relation to the normal value established during the original investigation.

         1.3.   Initiation

               (14)

               Having determined, after consulting the Advisory Committee, that sufficient prima facie evidence existed for the initiation of an investigation pursuant to Article 13 of the basic Regulation, the Commission initiated an investigation by Commission Regulation (EU) No 548/2012 (9) (‘the initiating Regulation’). Pursuant to Articles 13(3) and 14(5) of the basic Regulation, the Commission, by the initiating Regulation, also directed the customs authorities to register imports of gas-fuelled, non-refillable pocket flint lighters consigned from Vietnam, whether declared as originating in Vietnam or not.

         1.4.   Investigation

               (15)

               The Commission officially advised the authorities of the PRC and Vietnam, the exporting producers in those countries, the importers in the Union known to be concerned and Société BIC (the applicant), a Union producer representing more than 75 % of the production of gas-fuelled, non-refillable pocket flint lighters in the European Union, of the initiation of the investigation.

               (16)

               Questionnaires were sent to 70 exporting producers in the PRC and 15 exporting producers in Vietnam known to the Commission from the request. Questionnaires were also sent to 59 importers in the Union named in the request. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the initiating Regulation. All parties were informed that non-cooperation might lead to the application of Article 18 of the basic Regulation and to findings being based on the facts available.

               (17)

               Eight out of the 15 known exporting producers in Vietnam came forward, one of which claimed that it did not want to be considered as an interested party as it did not produce the product under investigation and did not export to the Union.

               (18)

               The following seven companies submitted replies to the questionnaires and verification visits were subsequently carried out at their premises:

                           —

                           Viet Giai Thanh Co. Ltd, Ho Chi Minh City,

                           —

                           Hoa Hung Co. Ltd, Tay Ninh Province,

                           —

                           Trung Lai Gas Lighter Manufacture Co. Ltd, Nghe An Province,

                           —

                           Textion Plastic Co. Ltd, Binh Duong Province,

                           —

                           Cherry Year Vietnam Lighter Manufacture Co. Ltd, Tay Ninh Province,

                           —

                           Huaxing Vietnam Manufacture Co. Ltd, Tay Ninh Province,

                           —

                           Top Field Enterprises Co. Ltd, Tay Ninh Province.

               (19)

               None of the known exporting producers in the PRC came forward or submitted a questionnaire reply.

               (20)

               As regards importers, eight submitted a questionnaire reply, whereas six companies came forward and claimed that they did not want to be considered as interested parties as they did not import gas-fuelled, non-refillable pocket flint lighters from Vietnam (the product under investigation) in the Union. The remaining known companies did not come forward at all.

               (21)

               Following the initiation of the investigation, two importers requested and were granted a hearing which was held during September 2012. The importers also submitted their observations in writing. Their observations questioned the grounds of the initiation of the investigation as regards the product scope, import volumes, economic justification for the changes in the pattern of trade, the motivations behind the request and the financial situation of the Union prducer having made the request. In the opinion of the two importers, there were insufficient grounds to initiate an investigation.

               (22)

               The Commission provided a detailed reply to the observations and gave the parties an opportunity to comment. The Commission outlined why it considered that the request contained sufficient prima facie evidence to justify the initiation of the investigation. The comments made by the two importers did not demonstrate that there would not have been sufficient prima facie evidence to justify the initiation of the investigation.

         1.5.   Investigation period

               (23)

               The investigation period covered the period from 1 January 2008 to 31 March 2012 (‘the IP’). Data were collected for the IP to investigate, inter alia, the alleged change in the pattern of trade. More detailed data were collected for the reporting period from 1 April 2011 to 31 March 2012 (‘the RP’) in order to examine the possible undermining of the remedial effect of the measures and the existence of dumping.

         2.   RESULTS OF THE INVESTIGATION

   2.1.   General considerations

               (24)

               In accordance with Article 13(1) of the basic Regulation, the assessment of the existence of circumvention was made by analysing successively whether there was a change in the pattern of trade between the PRC, Vietnam and the Union; if this change resulted from a practice, process or work for which there was insufficient due cause or economic justification other than the imposition of the duty; if there was evidence of injury or that the remedial effects of the duty were being undermined in terms of the prices and/or quantities of the product under investigation; and whether there was evidence of dumping in relation to the normal values previously established in the original investigation, if necessary in accordance with Article 2 of the basic Regulation.

         2.2.   Product concerned and the product under investigation

               (25)

               The product concerned is as defined in the original investigation: gas-fuelled, non-refillable pocket flint lighters currently falling within CN code ex 9613 10 00 and originating in the People’s Republic of China (‘the product concerned’).

               (26)

               The product under investigation is the same as that defined in the previous recital, but consigned from Vietnam, whether declared as originating in Vietnam or not, currently falling within the same CN code as the product concerned (‘the product under investigation’).

               (27)

               The investigation showed that gas-fuelled, non-refillable pocket flint lighters, as defined above, exported from the PRC to the Union and those consigned from Vietnam to the Union have the same basic physical and technical characteristics and have the same uses, and are therefore to be considered as like products within the meaning of Article 1(4) of the basic Regulation.

         2.3.   Degree of cooperation and determination of the trade volumes

               (28)

               As stated in recital 18, seven companies submitted questionnaire replies. For the RP, the total volume of lighters reported as sold to the Union according to these replies represented more than 100 % of the total volume of lighters reported as imported into the Union according to the Eurostat Comext database. Despite the fact that the information regarding sales volumes in the replies was considered to be unreliable as explained in recital 29 below, it is considered that this still gives an indication that cooperation was high and that the companies investigated are representative.

               (29)

               During the verification visits carried-out at the premises of the seven Vietnamese exporting producers, it was found that they had each submitted information which could not be considered to be reliable for the purpose of establishing the findings relevant to the investigation. In particular, the seven companies were found to have wrongly stated their production volumes, imports of lighter parts and total sales. It was also found that part of the business relating to the product under investigation was not included in the official acounts and that certain assembly operations were carried out by unofficial subcontractors. Moreover, quantities of imports of parts from the PRC were not declared or wrongly stated, and part of the sales were not accounted for in the accounts of the companies. As a result, it has not been possible to reliably establish, in particular, the total production and total sales volumes of the companies concerned, or to reconcile the actual sale prices of the product under investigation and the costs relating to key input materials such as gas with the data provided in the replies to the questionnaire.

               (30)

               In view of the situation described in recital 29, the exporting producers were informed that pursuant to Article 18 of the basic Regulation it was envisaged to base the findings and conclusions of the investigation on the best facts available. Parties were given an opportunity to comment and were granted a hearing when requested. Each party received an individual letter outlining the specific and detailed findings which led to the conclusion that the data provided could not be considered to be reliable and was not suitable to establish the facts necessary for the investigation.

               (31)

               Two exporting producers did not provide any comments on the intention to apply Article 18 of the basic Regulation. The other five exporting producers, composed of two individual companies and one group of three companies, requested and were granted a hearing which was held during November 2012. These exporting producers also provided their observations in writing. They disputed the Commission’s intention to disregard the data they provided and the possible conclusion of the existence of circumvention based on the application of the best facts available.

               (32)

               Four of the exporting producers did not contest the fact that the information they provided was not complete or reliable and admitted the discrepancies in their accounting and the fact that not all operations were disclosed or recorded in their books. However, they claimed that these differences only concerned their domestic sales and did not have any effect on their export sales. One party claimed that its records had been destroyed by a fire, which explained the incompleteness of the information available. They further claimed that the quantity of gas contained in the lighters was wrongly estimated by the Commission and that therefore the findings regarding the production volumes were not correct. One company claimed that a discrepancy concerning gas consumption was explained by intentional releases of gas during the warmer months. These parties could not, however, provide any substantiated evidence to support these claims.

               (33)

               The companies also stated that they were fully cooperative and were not withholding any information concerning their business. They admitted to have provided deficient replies, but strongly contested having submitted false or misleading information. In their view, undisclosed and unverifiable data does not, of itself, consitute a proof of circumvention and according to them, the Commission had not demonstrated, on the basis of on positive evidence, that circumvention was taking place.

               (34)

               Although the companies have not themselves provided complete and accurate records of their activities, the Commission has used alternative methods, such as the consumption of raw materials, to reconcile the key data provided in the questionnaire replies with the information provided and discovered on spot. Such alternative methods, even if inevitably less precise than actual records, showed that the data provided was not reliable. For instance, the outcome concerning production volume showed that the production quantities declared by the companies did not match with their consumption of raw materials.

               (35)

               The Commission considers that the absence of reliable records, the withholding of information which is relevant to the investigation and the submission of false or misleading information rendered the data unreliable following a verification process.

               (36)

               Given the above, findings in respect of imports of gas-fuelled, non-refillable pocket flint lighters from Vietnam into the Union had to be made on the basis of the facts available in accordance with Article 18(1) of the basic Regulation. As a consequence, in order to ensure that the failure of the parties to provide the information does not hinder the investigation, the Commission has replaced the unverifiable data provided by the Vietnamese producers with other available data, such as the Eurostat Comext database to determine the overall import volumes from Vietnam into the Union, and cost data provided in the request to determine the share of Chinese parts (see recital 50 below).

               (37)

               There was no cooperation from the Chinese exporting producers. Therefore, findings in respect of imports of the product concerned into the Union and exports of gas-fuelled, non-refillable pocket flint lighters from the PRC to Vietnam had to be made on the basis of the facts available in accordance with Article 18(1) of the basic Regulation. UN Comtrade statistics provided in the request were used for the determination of the overall exports from the PRC to Vietnam.

         2.4.   Change in the pattern of trade

               (38)

               Imports of the product concerned from the PRC dropped in 1991 when the measures were first introduced. The imports have remained small throughout the successive modifications and extensions of the measures in 1995, 1999, 2001 and 2007.

               (39)

               Imports of lighters from the PRC between 1 January 2008 and 31 March 2012 were relatively stable in terms of volume, around 50 million pieces for 2008 and 2009, 70 million pieces in 2010 and 60 million in 2011 and the RP. However, they consisted only of refillable models and electrical piezo lighters which were not subject to the measures.

               (40)

               The imports of the product under investigation from Vietnam have increased over time. While in 1997 there were practically no imports into the Union of the product under investigation from Vietnam, since 2007 there has been a rapid increase in the import volume of the product under investigation.

               (41)

               In RP imports from Vietnam represented 84 % of all imports to the Union.

                  Imports from Vietnam into the Union of non-refillable lighters as % of all imports

                           2008

                           2009

                           2010

                           2011

                           RP

                           Market share

                           80 %

                           84 %

                           83 %

                           84 %

                           84 %

                              Source: statistics provided in the request.

               (42)

               Flint lighter parts were exported from the PRC to Vietnam during the IP. Vietnam is the most important export destination of flint lighter parts from the PRC. According to the statistics provided in the request, exports of lighter parts from the PRC to Vietnam have increased significantly since 1999. In 1999, exports of lighter parts from the PRC to Vietnam were less than 3 % of total exports, whereas in 2010 Vietnam became the first export destination of lighter parts with a share of 26 % of imports. In volumes, this would correspond to an increase from less than 50 million to 200 million finished lighters.

               (43)

               As the information provided by the Vietnamese producers had to be disregarded, no verifiable information could be obtained on the possible levels of the genuine production of gas-fuelled, non-refillable pocket flint lighters.

         2.5.   Conclusion on the change in the pattern of trade

               (44)

               The overall decrease in exports from the PRC to the Union and the increase in exports from Vietnam to the Union since 2007 and the significant increase in exports of lighter parts from the PRC to Vietnam since 1999 constituted a change in the pattern of trade between the PRC and Vietnam, on the one hand, and the Union, on the other.

         2.6.   Nature of the circumvention practice

               (45)

               Article 13(1) of the basic Regulation requires that the change in the pattern of trade stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty. The practice, process or work includes, inter alia, the assembly of parts by an assembly operation in a third country. For this purpose the existence of assembly operations is determined in accordance with Article 13(2) of the basic Regulation.

               (46)

               As mentioned above, the absence of reliable records and the witholding of information which was relevant for the investigation has led to the application of Article 18 of the basic Regulation. Whether or not an assembly operation in Vietnam could be considered to circumvent the measures had to be based on the facts available.

               (47)

               The investigation has revealed that the circumvention takes place through assembly operations conducted by Vietnamese companies which operate in close cooperation with Chinese and Hong Kong registered companies. The majority of cooperating Vietnamese producers are owned by PRC and Hong Kong companies. Also the management of the Vietnamese companies is, to a large extent, composed of Chinese professionals who have previously worked for lighter producers in the PRC.

               (48)

               The Vietnamese producers import their lighter parts from the PRC through related companies registered in Hong Kong. Some of the Vietnamese producers operate under processing agreements with Chinese and/or Hong Kong principals. Under these agreements, the Chinese principal provides the lighter parts and plastic to the Vietnamese factory, and sells the finished lighters. Even in the absence of such processing agreements, the lighters produced in Vietnam are typically sold to Hong Kong companies who are in charge of the commercial relationship with Union importers.

               (49)

               Due to the unreliability of the information provided by the Vietnamese producers, it has not been possible to determine whether the percentage thresholds set out in Article 13(2) of the basic Regulation are fulfilled or not. It has not been possible to verify whether the lighter parts originating from the PRC constitute more or less than 60 % of the total value of the assembled lighters and whether or not the value added to the parts brought in has been greater or lesser than 25 % of the manufacturing cost.

               (50)

               In the absence of reliable information from the Vietnamese producers, the determination must be made on the basis of the facts available. The information provided in the request shows that the lighter parts originating from PRC represent between 60 % and 70 % of the total value and that the value added to the parts brought in corresponds to 12 % of the manufacturing costs. These values are based on comparable production costs of a manufacturer located in the PRC. The underlying calculations are considered to be reasonably accurate and to reflect the division of costs in Vietnam, because the lighter parts and raw materials used are the same in both the PRC and Vietnam. Any adjustments due to lower local costs in Vietnam would result in an even larger share of Chinese value in the finished lighters.

         2.7.   Insufficient due cause or economic justification other than the imposition of the anti-dumping duty

               (51)

               The investigation did not bring to light any other due cause or economic justification for the assembly operations than the avoidance of the original measures on the product concerned. The Vietnamese producers have claimed that the cause for moving the production would be the lower labour costs in Vietnam, but the claim has not been substantiated. In any case, a general labour cost difference would not explain why the production in a specific sector (lighters) would move to Vietnam, while production in other sectors, including lighter parts, for example, continues in the PRC.

         2.8.   Injury or undermining of the remedial effect of the anti-dumping duty

               (52)

               The existence of injury having been addressed in the original Regulation, the scope of the current investigation included the assessment of whether the remedial effects of the duties in place are being undermined in terms of the prices and/or quantities of the like product.

               (53)

               To assess whether the imported product under investigation had, in terms of quantities and prices, undermined the remedial effects of the original measures on imports of the product concerned, Eurostat Comext datase was used as the best data available concerning quantities and prices of imports from Vietnam. The prices so determined were compared to the injury elimination level established for Union producers in recital 63 of Regulation (EC) No 1006/95.

               (54)

               The increase of imports from Vietnam to the Union from 0,6 % of Union imports in 1998 to 80 % in 2008 (start of the IP) and to 84 % of Union imports in the RP (the end of the IP), see the table in paragraph 2.4, was considered to be significant in terms of quantities. In the same period, the imports from PRC into the Union decreased significantly, from 30 % to 10 % of share of all imports.

               (55)

               The comparison of the injury elimination level as established in the original investigation and the weighted average export price for Vietnamese declared exports showed significant underselling. It was therefore concluded that the remedial effects of the duty, as determined in the original Regulation are being undermined in terms of both quantities and prices.

         2.9.   Evidence of dumping

               (56)

               Finally, in accordance with Article 13(1) and (2) of the basic Regulation, the Commission examined whether there was evidence of dumping by comparing the normal value previously established in the original investigation with the export prices from Vietnam.

               (57)

               In the original investigation the normal value was established on the basis of prices in Brazil, which was found to be an appropriate market economy analogue country for the PRC for that investigation.

               (58)

               The export prices from Vietnam were based on the facts available, i.e. on the average export price of gas-fuelled, non-refillable pocket flint lighters during the RP as reported in Eurostat Comext database. The use of the facts available was due to unreliable information from the Vietnamese producers concerning the product under investigation.

               (59)

               For the purpose of a fair comparison between the normal value and the export price, due allowance, in the form of adjustments, was made for differences which affect prices and price comparability in accordance with Article 2(10) of the basic Regulation. Accordingly, adjustments were made for differences in transport, insurance and packing costs. Given that there was no reliable information obtained from the producers in Vietnam and the PRC, the adjustments had to be established on the basis of the best facts available. Thus, the adjustments for these allowances were based on a percentage calculated as the proportion of the total transport, insurance and packing costs over the value of the sales transactions to the Union with CIF delivery terms provided by the cooperating Chinese exporting producers in the original investigation.

               (60)

               In accordance with Article 2(11) and 2(12) of the basic Regulation, dumping was calculated by comparing the weighted average normal value as established in the original Regulation and the corresponding weighted average export prices for Vietnamese declared exports during this investigation’s RP according to the Comext database, expressed as a percentage of the CIF price at the Union frontier duty unpaid.

               (61)

               The comparison of the weighted average normal value and the weighted average export price, after the adjustments explained in recital 59 above, showed the existence of significant dumping.

         2.10.   Comments to the disclosure

               (62)

               Following the disclosure, a group of interested parties, comprised of Vietnamese producers and Union importers, even though admitting to not being directly concerned by the measures, commented on the findings of the investigation. They again argued that any misleading information had not been provided intentionally, that the Commission had not found any positive evidence of circumvention and that there was no remedial effect to be achieved by retroactive imposition of the measures, also demonstrated by the non-prolongation of the original measures against the PRC. According to these parties, the non-prolongation of the original measures against the PRC was based on findings concerning the same time-period as the conclusion that the circumvention practices undermine the remedial effects of the original measures. Finally they also questioned the intended effect and what the Union interest would be in extending the measures which were terminated in December 2012. In their view, the extension of the measures would bring no benefit to the Union industry and would only penalise Union importers.

               (63)

               Upon presentation and admittance of a valid request for an anti-circumvention investigation, the Commission has a legal obligation to fully investigate the matter and take appropriate action if justified. In the case at hand it was found that all the conditions of Article 13 of the basic Regulation to determine that circumvention is taking place were fulfilled. Consequently, the measures had to be extended in the appropriate manner to imports from Vietnam.

               (64)

               When assessing whether circumvention practices undermine the remedial effects of the original measures, the Commission must base its analysis on the developments following the imposition of these measures and takes into consideration the findings from the original investigation on the basis of which the remedial effects have been determined. By contrast, the assessment of the necessity to initiate an expiry review is determined on the basis of the likelihood of continuation or recurrence of dumping and injury in the future on the basis of findings relating to a different period of time. Therefore, contrary to what the interested parties have alleged, the two findings do not concern the same time period. As regards the claim that only Union importers would be affected and that there would be no benefit to the Union industry, the Union interest for the imposition of the measures was confirmed in the original investigation. In accordance with Article 13 of the basic Regulation, the extension of the remedial effects of the original measures against circumvention is in this respect justified as long as the original measures are in force. The purpose of the extension of the measures is in any case not to penalise parties, but to correct the distortive effect of the circumvented dumped imports from Vietnam on the Union market by introducing a level playing field in terms of prices or quantities of such imports. In any event, the alleged sole influence of the measures on importers is not supported by any evidence or analysis.

               (65)

               One other interested party, an importer, submitted comments on the investigation arguing that it had not been informed about the initiation of the circumvention investigation. It has to be noted in this respect that this party was not known to the Commission prior to the initiation of the investigation and that the initiation notice was made public by means of publication in the Official Journal.

               (66)

               Another importer reacted by announcing that it would, within six months, submit evidence demonstrating that its imports of lighters did not involve circumvention. The Commission notes that all interested parties have been invited in the initiation notice to submit evidence during the investigation (see in particular recitals 10, 19 and 20 and Article 3(2) of Regulation (EU) No 548/2012). The Commission must conclude the investigation within the legal deadline of nine months and therefore cannot await additional submissions at this stage.

         3.   MEASURES

               (67)

               Given the above, it was concluded that the definitive anti-dumping duty imposed on imports of gas-fuelled, non-refillable pocket flint lighters originating in the PRC was circumvented by assembly operations via Vietnam within the meaning of Article 13(1) and 13(2) of the basic Regulation.

               (68)

               In accordance with the first sentence of Article 13(1) of the basic Regulation, the original measures on imports of the product concerned, should be extended to imports of the product under investigation, i.e. the same product but consigned from Vietnam, whether declared as originating in Vietnam or not.

               (69)

               In light of the non-cooperation in this investigation, the measures to be extended should be the measures established in Article 1(2) of Regulation (EC) No 1458/2007, i.e. a definitive anti-dumping duty of EUR 0,065 per lighter.

               (70)

               In accordance with Articles 13(3) and 14(5) of the basic Regulation, which provides that any extended measure should apply to imports which entered the Union under registration imposed by the initiating Regulation, duties should be collected on those registered imports of gas-fuelled, non-refillable pocket flint lighters consigned from Vietnam. Given that the original measures expired on 13 December 2012 and the registration has been terminated on the same day, the collection of duties would only apply up to that date.

         4.   REQUESTS FOR EXEMPTION

               (71)

               The seven companies in Vietnam submitting questionnaire replies requested an exemption from the possible extended measures in accordance with Article 13(4) of the basic Regulation.

               (72)

               All of these seven companies were found to have provided false or misleading information. In accordance with Article 18(4) of the basic Regulation, these companies were informed of the intention to disregard the information submitted by them and were granted a time-limit to provide further explanations.

               (73)

               Further explanations by these companies were not such so as to lead to a change in the conclusion. Therefore in accordance with Article 18(1) of the basic Regulation, findings with regard to these companies were based on the facts available.

               (74)

               Taking into account the nature of the false and/or misleading information as set out above, the exemptions as requested by these seven companies could, in accordance with Article 13(4) of the basic Regulation, not be granted.

         5.   DISCLOSURE

               (75)

               All interested parties were informed of the essential facts and considerations leading to the above conclusions and were invited to comment. The oral and written comments submitted by the parties were considered. None of the arguments presented gave rise to a modification of the findings,

         HAS ADOPTED THIS REGULATION:
   Article 1
   1.   The definitive anti-dumping duty imposed by Article 1(2) of Regulation (EC) No 1458/2007 on imports of gas-fuelled, non-refillable pocket flint lighters originating in the People’s Republic of China is hereby extended to imports of gas-fuelled, non-refillable pocket flint lighters consigned from Vietnam, whether declared as originating in Vietnam or not, currently falling under CN code ex 9613 10 00.
   2.   The duty extended by paragraph 1 of this Article shall be collected on imports consigned from Vietnam from 27 June 2012 until 13 December 2012, whether declared as originating in Vietnam or not, registered in accordance with Article 2 of Regulation (EU) No 548/2012 and Articles 13(3) and 14(5) of Regulation (EC) No 1225/2009.
   3.   Unless otherwise specified, the provisions in force concerning customs duties shall apply.
   Article 2
   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, 18 March 2013.

            For the Council

            The President

         S. COVENEY

      (1)  OJ L 343, 22.12.2009, p. 51.

      (2)  OJ L 326, 28.11.1991, p. 1.

      (3)  OJ L 101, 4.5.1995, p. 38.

      (4)  OJ L 22, 29.1.1999, p. 1.

      (5)  OJ L 248, 18.9.2001, p. 1.

      (6)  OJ L 326, 12.12.2007, p. 1.

      (7)  OJ C 382, 12.12.2012, p. 12.

      (8)  OJ L 340, 13.12.2012, p. 37.

      (9)  OJ L 165, 26.6.2012, p. 37.


title: Commission Implementing Regulation (EU) 2016/1930 of 4 November 2016 approving chlorocresol as an existing active substance for use in biocidal products of product-types 1, 2, 3, 6 and 9 (Text with EEA relevance )

text:
               5.11.2016

               EN

               Official Journal of the European Union

               L 299/29

         COMMISSION IMPLEMENTING REGULATION (EU) 2016/1930
   of 4 November 2016
   approving chlorocresol as an existing active substance for use in biocidal products of product-types 1, 2, 3, 6 and 9
   (Text with EEA relevance)
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (1), and in particular the third subparagraph of Article 89(1) thereof,
   Whereas:

               (1)

               Commission Delegated Regulation (EU) No 1062/2014 (2) establishes a list of existing active substances to be evaluated for their possible approval for use in biocidal products. That list includes chlorocresol.

               (2)

               Chlorocresol has been evaluated for use in products of product-type 1, human hygiene, of product-type 2, disinfectants and algaecides not intended for direct application to humans or animals, of product-type 3, veterinary hygiene, of product-type 6, preservatives for products during storage, and of product-type 9, fibre, leather, rubber and polymerised materials preservatives, as described in Annex V to Regulation (EU) No 528/2012.

               (3)

               France was designated as evaluating competent authority and submitted the assessment reports together with its recommendations on 8 October 2013, 15 November 2013 and 18 December 2013.

               (4)

               In accordance with Article 7(2) of Delegated Regulation (EU) No 1062/2014, the opinions of the European Chemicals Agency were formulated on 13 April 2016 by the Biocidal Products Committee, having regard to the conclusions of the evaluating competent authority.

               (5)

               According to those opinions, biocidal products of product-types 1, 2, 3, 6 and 9 and containing chlorocresol may be expected to satisfy the criteria of Article 19(1)(b) of Regulation (EU) No 528/2012, provided that certain specifications and conditions concerning their use are complied with.

               (6)

               It is therefore appropriate to approve chlorocresol for use in biocidal products of product-types 1, 2, 3, 6 and 9, subject to compliance with certain specifications and conditions.

               (7)

               A reasonable period should be allowed to elapse before an active substance is approved in order to permit interested parties to take the preparatory measures necessary to meet the new requirements.

               (8)

               The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on Biocidal Products,

         HAS ADOPTED THIS REGULATION:
   Article 1
   Chlorocresol is approved as an active substance for use in biocidal products of product-types 1, 2, 3, 6 and 9, subject to the specifications and conditions set out in the Annex.
   Article 2
   This Regulation shall enter into force on the twentieth 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, 4 November 2016.

            For the Commission

            The President

         Jean-Claude JUNCKER

      (1)  OJ L 167, 27.6.2012, p. 1.

      (2)  Commission Delegated Regulation (EU) No 1062/2014 of 4 August 2014 on the work programme for the systematic examination of all existing active substances contained in biocidal products referred to in Regulation (EU) No 528/2012 of the European Parliament and of the Council (OJ L 294, 10.10.2014, p. 1).

      ANNEX

                  Common Name

                  IUPAC Name
                  Identification Numbers

                  Minimum degree of purity of the active substance (1)

                  Date of approval

                  Expiry date of approval

                  Product type

                  Specific conditions

                  Chlorocresol

                  IUPAC Name:
                  4-chloro-3-methylphenol
                  EC No: 200-431-6
                  CAS No: 59-50-7

                  99,8 % w/w

                  1 May 2018

                  30 April 2028

                  1

                  The authorisations of biocidal products are subject to the following condition:
                  The product assessment shall pay particular attention to the exposures, the risks and the efficacy linked to any use covered by an application for authorisation, but not addressed in the Union-level risk assessment of the active substance.

                  2

                  The authorisations of biocidal products are subject to the following conditions:

                              1.

                              The product assessment shall pay particular attention to the exposures, the risks and the efficacy linked to any use covered by an application for authorisation, but not addressed in the Union-level risk assessment of the active substance.

                              2.

                              In view of the risks identified for the uses assessed, the product assessment shall pay particular attention to:

                                          a)

                                          industrial and professional users;

                                          b)

                                          children for products used in private and institutional areas.

                  3

                  The authorisations of biocidal products are subject to the following conditions:

                              1.

                              The product assessment shall pay particular attention to the exposures, the risks and the efficacy linked to any use covered by an application for authorisation, but not addressed in the Union-level risk assessment of the active substance.

                              2.

                              In view of the risks identified for the uses assessed, the product assessment shall pay particular attention to:

                                          a)

                                          professional users;

                                          b)

                                          soil compartment.

                              3.

                              For products that may lead to residues in food or feed, the need to set new or to amend existing maximum residue levels (MRLs) in accordance with Regulation (EC) No 470/2009 of the European Parliament and of the Council (2) or Regulation (EC) No 396/2005 of the European Parliament and of the Council (3) shall be verified, and any appropriate risk mitigation measures shall be taken to ensure that the applicable MRLs are not exceeded.

                  6

                  The authorisations of biocidal products are subject to the following conditions:

                              1.

                              The product assessment shall pay particular attention to the exposures, the risks and the efficacy linked to any use covered by an application for authorisation, but not addressed in the Union-level risk assessment of the active substance.

                              2.

                              In view of the risks identified for the uses assessed, the product assessment shall pay particular attention to:

                                          a)

                                          professional users during the formulation of product to be preserved and during the application of the preserved product in paper production;

                                          b)

                                          infants crawling on a surface that has been cleaned with the preserved product.

                  9

                  The authorisations of biocidal products are subject to the following conditions:

                              1.

                              The product assessment shall pay particular attention to the exposures, the risks and the efficacy linked to any use covered by an application for authorisation, but not addressed in the Union-level risk assessment of the active substance.

                              2.

                              In view of the risks identified for the uses assessed, the product assessment shall pay particular attention to professional users.

         (1)  The purity indicated in this column was the minimum degree of purity of the active substance evaluated in accordance with Article 89(1) of Regulation (EU) No 528/2012. The active substance in the product placed on the market can be of equal or different purity if it has been proven to be technically equivalent to the evaluated active substance.

         (2)  Regulation (EC) No 470/2009 of the European Parliament and of the Council of 6 May 2009 laying down Community procedures for the establishment of residue limits of pharmacologically active substances in foodstuffs of animal origin, repealing Council Regulation (EEC) No 2377/90 and amending Directive 2001/82/EC of the European Parliament and of the Council and Regulation (EC) No 726/2004 of the European Parliament and of the Council (OJ L 152, 16.6.2009, p. 11).

         (3)  Regulation (EC) No 396/2005 of the European Parliament and of the Council of 23 February 2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin and amending Council Directive 91/414/EEC (OJ L 70, 16.3.2005, p. 1).