17.2.2005   

EN

Official Journal of the European Union

C 40/1

17.2.2005   

EN

Official Journal of the European Union

C 40/2

—

in Belgium, the ‘tribunal de première instance’/‘rechtbank van eerste aanleg’/‘erstinstanzliches Gericht’,

—

in Czech Republic, the ‘okresní soud’ or ‘soudní exekutoř’,

—

in Germany:

—

in Estonia, the ‘maakohus’ or the ‘linnakohus’,

—

in Greece, the ‘Πρωτοδικείο’.

—

in Spain, the ‘Juzgado de Primera Instancia’,

—

in France, the ‘juge aux affaires familiales du tribunal de grande instance’,

—

in Ireland, the High Court,

—

in Italy, the ‘Corte d'appello’,

—

in Cyprus, no information communicated to the European Commission,

—

in Latvia, the ‘rajona (pilsētas) tiesa’,

—

in Lithuania, the ‘Lietuvos apeliacinis teismas’,

—

in Luxembourg, the presiding Judge of the ‘Tribunal d'arrondissement’,

—

in Hungary, no information communicated to the European Commission,

—

in Malte, the ‘Prim' Awla tal-Qorti Civili’ or ‘il-Qorti tal Maġistrati ta' Għawdex fil-ġurisdizzjoni superjuri tagħha’,

—

in Netherlands, the ‘voorzieningenrechter van de rechtbank’,

—

in Austria, the ‘Bezirksgericht’,

—

in Poland, the ‘Sąd okręgowy’,

—

in Portugal, the ‘Tribunal de comarca’ or ‘Tribunal de Família e Menores’,

—

in Slovenia, the ‘okrožno sodišče’,

—

in Slovakia:

—

in Finland, the ‘Käräjäoikeus/tingsrätt’,

—

in Sweden, the ‘Svea hovrätt’,

—

in United Kingdom:

—

in Belgium:

—

in Czech Republic, the ‘okresní soud’,

—

in Germany, the ‘Oberlandesgericht’,

—

in Estonia, the ‘ringkonnakohus’

—

in Greece, the ‘Εφετείο’,

—

in Spain, the ‘Audiencia Provincial’,

—

in France, the ‘Cour d'appel’,

—

in Ireland, the High Court,

—

in Italy, the ‘Corte d'appello’,

—

in Cyprus, no information communicated to the European Commission,

—

in Latvia, the ‘apgabaltiesā’,

—

in Lithuania, the ‘Lietuvos apeliacinis teismas’,

—

in Luxembourg, the ‘Cour d'appel’,

—

in Hungary, no information communicated to the European Commission,

—

in Malte, the ‘Qorti tal-Appell’ in accordance with the procedure laid down for appeals in the ‘Kodiċi tal-Organizzazzjoni u Proċedura Ċivili — Kap. 12’,

—

in Netherlands, the ‘rechtbank’,

—

in Austria, the ‘Bezirksgericht’,

—

in Poland, the ‘Sąd apelacyjny’,

—

in Portugal, the ‘Tribunal da Relação’,

—

in Slovenia, the ‘okrožno sodišče’,

—

in Slovakia, the ‘Okresný súd’,

—

in Finland, the ‘Hovioikeus/hovrätt’,

—

in Sweden, the ‘Svea hovrätt’,

—

in United Kingdom:

—

in Belgium, Greece, Spain, France, Italy, Latvia, Luxembourg, Netherlands, by an appeal in cassation,

—

in Czech Republic, by a ‘žaloba pro zmatečnost’ and a ‘dovolání’,

—

in Germany, by a ‘Rechtsbeschwerde’,

—

in Estonia, by ‘kasaatsioonkaebus’,

—

in Ireland, by an appeal on a point of law to the Supreme Court,

—

in Cyprus, no information communicated to the European Commission,

—

in Lithuania, by an appeal in cassation to the ‘Lietuvos Aukščiausiasis Teismas’,

—

in Hungary, no information communicated to the European Commission,

—

in Austria, by a ‘Revisionsrekurs’,

—

in Poland, by an appeal in cassation to the ‘Sąd Najwyższy’,

—

in Portugal, by a ‘recurso restrito à matéria de direito, para o Supremo Tribunal de Justiça’,

—

in Slovenia, ‘pritožba na Vrhovno sodišče Republike Slovenije’,

—

in Slovakia, by a ‘dovolanie’,

—

in Finland, by an appeal to ‘Korkein oikeus/högsta domstolen’,

—

in Sweden, by an appeal to the ‘Högsta domstolen’,

—

in United Kingdom, by a single further appeal on a point of law:

17.2.2005   

EN

Official Journal of the European Union

C 40/5

17.2.2005   

EN

Official Journal of the European Union

C 40/7

—

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

—

in electronic form on the EUR-Lex website under document number 32004M3561. EUR-Lex is the on-line access to European law. (http://europa.eu.int/eur-lex/lex)

17.2.2005   

EN

Official Journal of the European Union

C 40/8

17.2.2005   

EN

Official Journal of the European Union

C 40/9

1.

On 22 October 2004, the European Central Bank (ECB) received a request from the Council of the European Union for an opinion on a proposal for a directive of the European Parliament and of the Council on the prevention of the use of the financial system for the purpose of money laundering, including terrorist financing (hereinafter the ‘proposed directive’).

2.

The ECB's competence to deliver an opinion is based on the first indent of Article 105(4) of the Treaty establishing the European Community, which provides that the ECB shall be consulted on any proposed Community act in its fields of competence. The ECB's competence to deliver an opinion is also based on Article 105(5) of the Treaty, as the proposed directive concerns one of the tasks of the European System of Central Banks (ESCB), namely to contribute to the smooth conduct of policies pursued by the competent authorities relating to the prudential supervision of credit institutions and the stability of the financial system. In addition, the ECB's competence to deliver an opinion is based on Articles 105(2) and 106(1) of the Treaty and Articles 16 to 18 and 21 to 23 of the Statute of the European System of Central Banks and of the European Central Bank, as the proposed directive contains provisions which have implications for certain ESCB tasks. In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.

3.

This opinion is based on the version of the proposed directive on which the ECB was consulted, namely the version of 13 October 2004. The ECB notes that it has undergone further elaboration under the Dutch Presidency but will for reasons of clarity refrain from commenting on any later version in this opinion.

4.

The main objective of the proposed directive is to ensure a coordinated implementation and application among Member States of the revised Forty Recommendations of the Financial Action Task Force on Money Laundering (hereinafter the 'FATF'). The result of the revision of the FATF's Forty Recommendations, which was completed in June 2003, is an enhanced and more comprehensive framework of international standards for safeguarding the integrity of the financial system. In particular, the scope of application of the Forty Recommendations was extended from the field of money laundering to also cover terrorist financing. Against this backdrop, the proposed directive will provide the single market with an enhanced and consistent legal framework for combating money laundering and terrorist financing. In particular, it is, inter alia, proposed to: (a) include terrorist financing within the concept of money laundering; (b) amend the definition of ‘serious crime’ in the current directive on money laundering (1) (hereinafter the ‘current Money Laundering Directive’); (c) extend the range of persons and institutions subject to the current Money Laundering Directive to cover, inter alia, trust and company service providers and insurance intermediaries (when they act in respect of life insurance and other investment-related insurance), in both cases to the extent that they are not covered by the current Money Laundering Directive; (d) widen the scope of application of customer due diligence procedures and record-keeping requirements for branches and majority-owned subsidiaries in third countries of institutions covered by the current Money Laundering Directive; (e) explicitly prohibit credit and financial institutions from keeping anonymous accounts, anonymous passbooks or accounts in fictitious names; (f) explicitly prohibit credit institutions from entering into correspondent banking relationships with shell banks; (g) establish more detailed ‘know-your-customer’ requirements for the institutions and persons subject to the proposed directive, particularly in situations where there is a higher risk of money laundering, including cross-frontier correspondent banking relationships; (h) allow Member States to apply simplified due diligence procedures in cases where there is a low risk of money laundering (the Commission, assisted by a Committee on the Prevention of Money Laundering, is authorised to adopt implementing measures in respect of the criteria for determining when the risk of money laundering is either low or high); (i) subject to certain conditions, provide for mutual recognition of customer due diligence procedures performed by third parties in other Member States; (j) require Member States to establish financial intelligence units to combat money laundering and terrorist financing effectively; and (k) require Member States to establish a licensing or registration system for currency exchange offices, as well as trust and company service providers. The ECB also notes that the proposed directive provides that, with regard to the service of money transmission, the special provisions on customer identification which will be set out in the as yet unpublished Commission proposal for a regulation of the European Parliament and of the Council on payer's information accompanying funds transfers (2) shall apply.

5.

On a general note, the ECB recalls the commitment of the Eurosystem of ‘doing everything within its power to contribute to the adoption, implementation and execution of measures against the use of the financial system for terrorist activities’, as expressed in the public statement of 1 October 2001 of the Governing Council of the ECB, made in the aftermath of the terrorist attacks in the United States on 11 September 2001. Against this general backdrop, the ECB strongly welcomes the proposed directive since it constitutes an important step towards enhancing the Community's legal framework for protecting the integrity of the financial system, bearing in mind the challenges raised by developments in money laundering and terrorist financing activities. The ECB also welcomes the proposed directive as it facilitates the coordinated implementation and application of the FATF's Forty Recommendations among Member States, thereby contributing to the convergence of practices in this field. Such coordinated application also helps to maintain a level playing field among EU credit and financial institutions. The ECB further welcomes Articles 37 and 38 of the proposed directive, which envisage the Commission adopting implementing measures, with the assistance of the above-mentioned Committee, in order to take account of technical developments in the fight against money laundering and to ensure a uniform application of the proposed directive. These articles should ensure that the framework in the proposed directive remains up-to-date and therefore effective. Furthermore, these articles should contribute to the harmonised application of the proposed directive by the competent authorities. As noted in recital 2 of the proposed directive, Community action in this area is necessary ‘in order to avoid Member States’ adopting measures to protect their financial systems which could be inconsistent with the functioning of the internal market'.

6.

The ECB notes that the application of Articles 7 and 30 (which respectively cover customer due diligence requirements and internal procedures) to credit institutions and other financial institutions will mean a substantial interaction with prudential supervision requirements. These provisions are in line with the recommendations of the Basel Committee on Banking Supervision on ‘Customer Due Diligence for Banks’ (3), which address this issue from a different perspective in that they aim at reducing operational and reputational risks for banks. The ECB welcomes these enhanced requirements of the proposed directive, since they are consistent with internationally-accepted best practice. The ECB further notes that it is important to ensure in the national transposition of the proposed directive consistency between these procedures and national measures implementing the acquis communautaire in the area of prudential supervision of credit institutions and other financial institutions, notably with regard to the supervision of banking and financial groups. To this end, a consistent and coordinated application of customer due diligence requirements by the competent authorities should be sought and will be of particular relevance in legislation where the enforcement of compliance with customer due diligence standards is entrusted to authorities other than the prudential supervisor for banks. Consistency and coordination should also lessen the regulatory compliance burden at a cross-border level. In particular, the ECB observes that compliance with customer due diligence requirements is also linked to operational risk, which is addressed in the proposal for the recasting of the Consolidated Banking Directive and the Capital Adequacy Directive (4). This link stems from the fact that loss directly (5) resulting from inadequate customer due diligence falls within the scope of operational risk, defined in Article 4 of the proposed recast Consolidated Banking Directive to include the risk of loss resulting from inadequate or failed internal processes, people and systems. Therefore the management of operational risk, as required in Annex V, point 11 of the proposed recast Consolidated Banking Directive also encompasses the policies and procedures required under Articles 7 and 30 of the proposed directive. More generally, pursuant to Article 22 of the proposed recast Consolidated Banking Directive, requirements must be imposed on banks to have processes to manage all material actual or future risks, which would include reputational risk resulting from inadequate customer due diligence. The ECB submits that this interaction should be explicitly addressed in Articles 7 and 30 of the proposed directive. As a minimum, the implementation of all related provisions and the subsequent supervision by the competent authorities must be consistent to avoid any undue burden on affected institutions.

7.

The ECB notes that Article 11(1) of the proposed directive sets out enhanced customer due diligence requirements in respect of, inter alia, ‘cross-frontier correspondent banking relationships with credit institutions from other Member States or third countries’. This provision seeks to implement Recommendation 7 of the FATF's Forty Recommendations, which covers cross-frontier correspondent banking relationships. As noted in the explanatory memorandum to the proposed directive, cross-frontier banking relationships are an area where the risk of money laundering and terrorist financing is particularly high, and as such they require particular care.

8.

The ECB also notes that the enhanced customer due diligence requirements applicable to cross-frontier correspondent banking relationships do not apply to correspondent banking relationships between two credit institutions in the same Member State. However, the wording of Article 11(1) of the proposed directive does not appear to have taken into account the specific EU system of mutual recognition, as set out in the Consolidated Banking Directive (6). It is questionable whether correspondent banking relationships between credit institutions in two different Member States should, as contemplated by the proposed directive, be regarded as high-risk situations requiring an assessment of inter alia the ‘quality of supervision’ of a credit institution in another Member State or the ‘reputation’ of a credit institution authorised by another Member State. The ECB therefore suggests that the proposed directive exempt credit institutions from other Member States from enhanced customer due diligence requirements in respect of cross-frontier correspondent banking relationships, on the basis of the EU system of mutual recognition.

9.

An issue of particular interest to the central banking community is whether it is intended that the proposed directive's enhanced customer due diligence requirements in respect of cross-frontier correspondent banking relationships should apply to non-EU (as well as EU) central banks' correspondent banking relationships with EU credit institutions. The euro is widely used as an international reserve currency, and consequently many non-EU central banks and monetary authorities have correspondent banking relationships with EU credit institutions. In the United States, the provisions of the USA PATRIOT Act (7) that require certification in connection with correspondent accounts administered, established or maintained on behalf of foreign banks do not apply to any foreign central bank or monetary authority that functions as a central bank, or any international financial institution or regional development bank formed by treaty or international agreement. Since correspondent banking relationships with central banks, monetary authorities and international financial institutions are not generally associated with a high risk of money laundering or terrorist financing, with the exception of institutions from countries on the FATF's list of non-cooperative countries and territories, the ECB recommends incorporation of a similar exemption in the proposed directive's enhanced customer due diligence requirements for cross-frontier correspondent banking relationships.

10.

In a similar vein, the ECB notes that under Article 23 of the Statute, ‘the ECB and the national central banks may establish relations with central banks and financial institutions in other countries and, where appropriate, with international organizations … [and] conduct all types of banking transactions in relations with third countries and international organizations … ’. The confidential conduct of banking transactions on behalf of such non-EU, as well as other EU, central bank customers and international organisation customers is of critical importance. It is unclear whether counterparties of national central banks (NCBs) in the Eurosystem – for example, credit institutions – would have to apply customer due diligence procedures under the proposed directive when receiving funds placed by NCBs on behalf of customers which are central banks or international organisations. It would therefore be helpful if the proposed directive could be amended so as to require Member States to allow institutions and persons covered by it not to apply customer due diligence in respect of the ECB and the NCBs in the ESCB, including when they act on behalf of third-party customers. In practice central banks represent a very low risk of money laundering and an explicit reference to central banks would increase legal clarity.

11.

As is the case with the current Money Laundering Directive, the proposed directive applies to credit and financial institutions (Article 2(1)). It is unclear whether central banks themselves fall within the scope of the proposed directive. For reasons of legal clarity, the ECB would welcome it if Article 2 of the proposed directive were amended by adding a separate paragraph according to which central banks shall assess the extent to which they represent a risk of being used for money laundering and, where there is a material risk of money laundering occurring, shall take appropriate measures to ensure that they comply with the objectives of the proposed directive.

12.

Article 7(3) of the proposed directive provides that, with regard to the service of money transmission, the special provisions on customer identification which will be set out in the as yet unpublished Commission proposal for a regulation of the European Parliament and of the Council on payer's information accompanying funds transfers (hereinafter the ‘draft regulation’) shall apply (8). The purpose of the draft regulation is to ensure that basic payer's information is immediately available to the appropriate authorities to assist them in combating the financing of terrorism. The draft regulation applies to funds transfers in any currency which are sent, received, or both, by a payment service provider established in the EU (9). The draft regulation also contains requirements applicable to payment service providers relating to the retention of payers' information accompanying funds transfers (10). The provisions in the proposed directive concerning payer information do not seem to exempt the application of other customer due diligence procedures to the service of money transmission, including the identification of a beneficial owner. It therefore seems that the proposed directive applies generally to the operation of payment systems. In particular, Article 7(1)(b) of the proposed directive states that identifying a beneficial owner forms part of the customer due diligence requirements, and Article 3(8) provides that beneficial owner means, inter alia, the natural person on whose behalf a transaction or activity is being conducted. The particularities of the structure of payment systems are relevant here. As in the case of postal services, payment system operators are only responsible for the orderly collection, sorting, settling, transferring and delivery of the ‘envelopes’, i.e. payment messages, but generally have neither the mandate to, nor even the technical possibility of, reading or checking the content of the envelopes. A check on the identity of the originator and the beneficiary, including their names and addresses, could only be carried out by their respective financial service providers. This is in line with the requirements of the current Money Laundering Directive, as implemented in the national laws of the Member States. However, as modern payment systems offer fully-automated processing of information, they are not able to carry out any form of quality check, and they usually do not have a business relationship with the originator or ultimate beneficiary of a payment. Payment system operators can only check the mere presence of some information in a field; they cannot check the quality, completeness, accuracy or meaningfulness of that information. The ECB is therefore of the opinion that payment system operators should be exempted from the application of Article 7(1)(b) of the proposed directive, without prejudice to their obligation to ensure that the payment orders entered into such systems can be effectively traced by means of an appropriate identification of the system participants. In some cases, a central bank oversight regulation has been enacted to this end.

17.2.2005   

EN

Official Journal of the European Union

C 40/14

1.

Is it consistent with Article 40 of the EEA Agreement that imputation tax credit for withholding tax is not granted to taxpayers resident in other member states?

2.

Is it consistent with the EEA Agreement that a member state deals solely with the distributing company when assessing and reassessing dividend tax (withholding tax) in those cases where the assessment decision for the foreign taxpayers is based on the assumption that the owner for tax purposes is someone other than the person who (1) is the owner under private law; (2) is registered in the VPS register as owner; and (3) is stated as owner in relation to the tax authorities, without either the owner for tax purposes or the VPS-registered owner under private law having been made aware of the reclassification?

17.2.2005   

EN

Official Journal of the European Union

C 40/15

1.

Is Article 1 of Council Directive 77/187/EEC of 14 February 1977 applicable in a situation where part of an undertaking, provided that it is organised as an independent economic entity, is handed over from one company to another, and where the same or corresponding activities are carried out by the acquiring company and an affiliated company within the same group of companies? Does the fact that some working relationships are directly handed over from the transferor to the acquiring company and others to its affiliated company preclude application of the Directive?

2.

Is application of the Directive pursuant to Article 1 precluded in the event that the maintenance and support functions of the undertaking are handed over while the production function is not, and the employees of all these functions work as a team both before and after the transfer?

3.

Is the Directive applicable pursuant to Article 1 in the event of a handover of maintenance tasks on a fixed offshore installation for gas production where a considerable part, in terms of numbers and qualifications, of the workforce which performed this function with the transferor, is handed over to an acquirer that continues to carry out these maintenance tasks on the same installations under a service contract? Is application of the Directive precluded if the ownership of the tools and instruments which the maintenance staff used before the handover, and which they have continued to use after the handover, is not taken over by the acquirer?

4.

Does it follow from Article 3(1) of the Directive that employment relationships are transferred to the transferee simultaneously with and by virtue of the transfer of the undertaking for those employees who have not, prior to the time of transfer, declared that they do not wish to work for the transferee?

17.2.2005   

EN

Official Journal of the European Union

C 40/16

17.2.2005   

EN

Official Journal of the European Union

C 40/17

1.

Declare that by maintaining in force the provisions of Article 25 of the Banking Act, whereby a residence requirement is imposed on at least one member of the management board and of the executive management in a bank established on its territory, the Principality of Liechtenstein has failed to respect the freedom of establishment for which Article 31 of the Agreement on the European Economic Area provides; and

2.

Order the Principality of Liechtenstein to pay the costs of the proceedings.

—

Article 31(1) EEA requires equal treatment between EEA nationals invoking their right to freedom of establishment and those nationals of the country where the establishment is effected.

—

Article 33 EEA provides a derogation from the right to freedom of establishment.

—

The EFTA Court has stated in Case E-3/98 Rainford-Towning [1998] EFTA Ct. Rep. 205, and Case E-2/01 Pucher [2002] EFTA Ct. Rep. 44, that ‘it is settled case law of the ECJ that the rules of equal treatment prohibit not only overt discrimination based on nationality but also all covert forms of discrimination which, by applying other distinguishing criteria, achieve, in practice, the same result’.

—

Both the EFTA Court and the Court of Justice of the European Communities have concluded that ‘national rules under which a distinction is drawn on the basis of residence are liable to operate mainly to the detriment of nationals of other Contracting Parties, as non-residents are in the majority of cases foreigners’. Rainford-Towning, paragraph 29.

—

The EFTA Court has further concluded that ‘[a]s regards justification on grounds of public policy, as envisaged in Article 33 EEA, it must be held that, in so far as it may justify special treatment of foreign nationals who are subject to the EEA Agreement, recourse to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat affecting one of the fundamental interests of society’. Rainford-Towning, paragraph 42.

—

The EFTA Court has acknowledged that protection of the function and good reputation of the financial services sector is a legitimate public policy objective and that certain complications may arise from the fact that Liechtenstein is not party to the Lugano Convention.

17.2.2005   

EN

Official Journal of the European Union

C 40/18

1.

Annul the decision of the EFTA Surveillance Authority of 11 August 2004, Decision 213/04/COL (Icelandic Housing Financing Fund); and

2.

Order the EFTA Surveillance Authority to pay the costs of the proceedings.

—

The applicant is the business association of all Icelandic commercial banks and acts as their service and clearing bank.

—

The Icelandic Housing Financing Fund (‘HFF’) provides general loans to individuals for the purpose of constructing or purchasing residential housing, and additional loans to individuals with low income.

—

The applicant claims that the general loans are normal banking services, and that HFF's de facto state monopoly contravenes the freedom to provide services, the right of establishment, and the free movement of capital.

—

The EFTA Surveillance Authority's Decision 213/04/COL of 11 August 2004 declared the HFF system to be compatible with the State aid rules according to Article 59(2) EEA.

—

The applicant claims that the EFTA Surveillance Authority:

17.2.2005   

EN

Official Journal of the European Union

C 40/19

The Norwegian School of Veterinary Science

Department of Food Safety and Infection Biology

P.O. Box 8146 Dep.

N-0033 Oslo

17.2.2005   

EN

Official Journal of the European Union

C 40/20

17.2.2005   

EN

Official Journal of the European Union

C 40/21

17.2.2005   

EN

Official Journal of the European Union

C 40/24

1.

Introduction: Ireland has amended the public service obligations published in the Official Journal of the European Communities C 66/04 of 15.3.2002 pursuant to Article 4(1)(a) of Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, in respect of scheduled air services operated between Dublin and Kerry with effect from 22 July 2005. The standards required by the revised public service obligation were published in the Official Journal of the European Union No C 39 of 16.2.2005.

Insofar as by one month of publication, no air carrier will have commenced or be about to commence such air services in accordance with the public service obligation and without requesting financial compensation, Ireland has decided, in accordance with the procedure laid down by Article 4(1)(d) of that regulation, to continue to limit access to the route to a single air carrier from 22 July 2005 and to offer the right to operate such services by public tender.

2.

Object of invitation to tender: Operation from 22 July 2005 of scheduled air services between Dublin and Kerry in accordance with the public service obligation imposed on that route and published in the Official Journal of the European Union No C 39 of 16.2.2005.

3.

Participation: Participation is open to all air carriers holding a valid operating licence issued by a Member State in accordance with Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers. The services will operate to aerodromes under the jurisdiction of the Irish Aviation Authority.

4.

Tender procedure: The present tender is subject to the provisions of points d), e), f), g), h) and i) of Article 4(1) of Regulation (EEC) No 2408/92.

5.

Information for tenderers: The complete tendering dossier, including the tender proposal form, financial information requirements, a note on demographic and socio-economic features of Kerry airport catchment area, a note on the airport (past passenger numbers, landing fees, technical facilities, etc.) and the full conditions of the contract, may be obtained free of charge from:

Department of Transport, 44 Kildare Street, Att: Mr Liam Keogh, IRL-Dublin 2. Tel. (353-1) 604 15 94. Fax (353-1) 604 16 81. E-mail: liamkeogh@transport.ie.

6.

Information required from tenderers: In addition to a fully completed tender proposal form, tenderers are required to satisfy the awarding authority, having regard to the requirement for the services to commence on 22 July 2005 and to the requirements for reliability and continuity of services, that they have:

Subject to being satisfied in relation to each of (a), (b) and (c) above, tenders will be evaluated according to which tender is the most economically advantageous, while also taking account of the carriers capacity to secure the operation of the PSO air services for the duration of the contract term. However, the awarding authority is not obliged to accept any tender. In certain circumstances, the Minister reserves the right to negotiate with bidders on a price related to his bid, but taking account of projected losses based on operating costs, projected yields etc.

The awarding authority reserves the right to solicit further information about any applicant's financial and/or technical resources and abilities, and without prejudice to the foregoing, to solicit or seek further information, whether from a third party or from the applicant, regarding the ability of the applicant to undertake and operate the relevant scheduled air services.

Tenders should be priced in euro and all supporting documents must be in the English language. The contract shall be considered as a contract made under Irish law and subject to the exclusive jurisdiction of the Irish courts.

7.

Financial compensation: Tenders must explicitly state the amount of financial compensation required for the operation of the public service obligation on the route for each of the 3 years from the scheduled starting date. The compensation should be calculated in accordance with the required minimum standards.

The actual amount of the compensation payable by the Department of Transport will be determined annually, on an ex-post basis, and will be limited to the actual losses incurred, having regard to actual costs, revenues and if applicable, profit margin, by the successful tenderer in operating the services, subject, as a maximum, to the limit of the amount stated in respect of each year in the tender.

Payments may be claimed by the carrier on a regular instalment basis, in accordance with the procedures set out in the dossier, referred to at 5, above. A balancing payment will be payable at the end of each contract year, subject to receipt by the awarding authority of appropriately documented claims accompanied by certification from the carrier's auditors, in accordance with the terms of the contract.

The contract will include provision for the maximum limit of compensation in any year(s) to be increased, at the sole discretion of the awarding authority, in the event of changes in operating conditions. Without prejudice to the provisions governing the termination of the contract, the awarding authority will, in assessing any proposal for an increase in the maximum limit of subvention in any year(s), have due regard to developments affecting the operation of the services that were not or could not have been anticipated by the tenderer or are due to factors outside the control of the tenderer.

All payments under the contract will be in euro.

8.

Period of validity, amendment and termination of the contract: The contract will be awarded by the Minister for Transport. The contract will be valid for a period of 3 years from 22 July 2005. A new invitation to tender will be made, if applicable, before the end of a period of 3 years maximum from 22 July 2005. Any amendment or termination of the contract will be in accordance with the terms of the contract. Variations in the standards required by the public service obligation will be permitted only with the prior agreement of the awarding authority.

9.

Penalties in the event of the carrier failing to comply with the contract: Where a flight is cancelled for reasons directly attributable to the carrier, the compensation payable will only be in respect of costs, if any, actually incurred by the carriers in handling passengers disrupted by the non-operation of such flights. The awarding authority reserves the right to serve notice of termination of the contract, if having regard to the adequacy of service provided by the carrier and in particular to the number of flights cancelled and/or delayed for reasons directly attributable to the carrier, it is of the opinion that the standards required by the public service obligation have not or are not being met satisfactorily.

10.

Deadline for submission of bids: Thirty one (31) calendar days from publication of this communication in the Official Journal of the European Union.

11.

Application procedure: Tenders must be submitted by registered letter, date as post-marked, or delivered to:

Department of Transport, 44 Kildare Street, IRL-Dublin 2, by 12.00 noon (Irish time) on the date in point 10, in envelopes marked ‘EASP Tender’.

12.

Validity of invitation to tender: In accordance with the first sentence of Article 4(1)(d) of Regulation (EEC) No 2408/92, the validity of this invitation to tender is subject to the condition that no Community air carrier presents, prior to deadline for submission of bids, a programme for operating the route in accordance with the public service obligation without receiving any financial compensation.

13.

Freedom of Information Act, 1997: The Department of Transport undertakes to use its best endeavours to hold confidential any information provided by tenderers, subject to the Department's obligations under law, including the Freedom of Information (FOI) Act 1997 as amended by Freedom of Information Act 2003. If tenderers wish that any of the information supplied by them in their tenders should not be disclosed because of its commercial sensitivity, they should, when providing the information, identify same and specify the reasons for its sensitivity. The Department will consult with tenderers about this sensitive information before making a decision regarding release of the information under the provisions of the Freedom of Information Act. If tenderers consider that none of the information supplied by them is commercially sensitive, they should make a statement to that effect and such information may be released in response to an FOI request.

17.2.2005   

EN

Official Journal of the European Union

C 40/26

1.

Introduction: Ireland has amended the public service obligations published in the Official Journal of the European Communities C 66/05 of 15 March 2002 pursuant to Article 4(1)(a) of Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, in respect of scheduled air services operated between Dublin and Galway with effect from 22 July 2005. The standards required by the revised public service obligation were published in the Official Journal of the European Communities No C 39 of 16.2.2005.

Insofar as by one month of publication, no air carrier will have commenced or be about to commence such air services in accordance with the public service obligation and without requesting financial compensation, Ireland has decided, in accordance with the procedure laid down by Article 4(1)(d) of that Regulation, to continue to limit access to the route to a single air carrier from 22 July 2005 and to offer the right to operate such services by public tender.

2.

Object of invitation to tender: Operation from 22 July 2005 of scheduled air services between Dublin and Galway in accordance with the public obligation imposed on that route and published in the Official Journal of the European Communities No C 39 of 16.2.2005.

3.

Participation: Participation is open to all air carriers holding a valid operating licence issued by a Member State in accordance with Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers. The services will operate to aerodromes under the jurisdiction of the Irish Aviation Authority.

4.

Tender procedure: The present tender is subject to the provisions of points d), e), f), g), h) and i) of Article 4(1) of Regulation (EEC) No 2408/92.

5.

Information for tenderers: The complete tendering dossier, including tender proposal form, financial information requirements, a note on demographic and socio-economic features of Galway airports catchment area, a not on the airport (past passenger numbers, landing fees, technical facilities, etc.) and the full conditions of the contract, may be obtained free of charge from:

Department of Transport, 44 Kildare Street, Att: Mr Liam Keogh, IRL- Dublin 2. Tel. (353-1) 604 15 94. Fax (353-1) 604 16 81. E-mail: liamkeogh@transport.ie.

6.

Information required from tenderers: In addition to a fully completed tender proposal form, tenderers are required to satisfy the awarding authority, having regard to the requirement for the services to commence on 22 July 2005 and to the requirements for reliability and continuity of services, that they have:

Subject to being satisfied in relation to each of a), b) and c) above, tenders will be evaluated according to which tender is the most economically advantageous, while also taking account of the carriers capacity to secure the operation of the PSO air services for the duration of the contract term. However, the awarding authority is not obliged to accept any tender. In certain circumstances, the Minister reserves the right to negotiate with bidders on a price related to his bid, but taking account of projected losses based on operating costs, projected yields etc.

The awarding authority reserves the right to solicit further information about any applicant's financial and/or technical resources and abilities, and without prejudice to the foregoing, to solicit or seek further information, whether from a third party or from the applicant, regarding the ability of the applicant to undertake and operate the relevant scheduled air services.

Tenders should be priced in euro and all supporting documents must be in the English language.

The contract shall be considered as a contract made under Irish law and subject to the exclusive jurisdiction of the Irish courts.

7.

Financial compensation: Tenders must explicitly state the amount of financial compensation required for the operation of the public service obligation on the route for each of the 3 years from the scheduled starting date. The compensation should be calculated in accordance with the required minimum standards.

The actual amount of the compensation payable by the Department of Transport will be determined annually, on an ex-post basis, and will be limited to the actual losses incurred, having regard to actual costs, revenues and if applicable, profit margin, by the successful tenderer in operating the services, subject, as a maximum, to the limit of the amount stated in respect of each year in the tender.

Payments may be claimed by the carrier on a regular instalment basis, in accordance with the procedures set out in the dossier, referred to at 5, above. A balancing payment will be payable at the end of each contract year, subject to receipt by the awarding authority of appropriately documented claims accompanied by certification from the carrier's auditors, in accordance with the terms of the contract.

The contract will include provision for the maximum limit of compensation in any year(s) to be increased, at the sole discretion of the awarding authority, in the event of changes in operating conditions. Without prejudice to the provisions governing the termination of the contract, the awarding authority will, in assessing any proposal for an increase in the maximum limit of subvention in any year(s), have due regard to developments affecting the operation of the services that were not or could not have been anticipated by the tenderer or are due to factors outside the control of the tenderer.

All payments under the contract will be in euro.

8.

Period of validity, amendment and termination of the contract: The contract will be awarded by the Minister for Transport. The contract will be valid for a period of 3 years from 22 July 2005. A new invitation to tender will be made, if applicable, before the end of a period of 3 years maximum from 22 July 2005. Any amendment or termination of the contract will be in accordance with the terms of the contract. Variations in the standards required by the public service obligation will be permitted only with the prior agreement of the awarding authority.

9.

Penalties in the event of the carrier failing to comply with the contract: Where a flight is cancelled for reasons directly attributable to the carrier, the compensation payable will only be in respect of costs, if any, actually incurred by the carriers in handling passengers disrupted by the non-operation of such flights. The awarding authority reserves the right to serve notice of termination of the contract, if having regard to the adequacy of service provided by the carrier and in particular to the number of flights cancelled and/or delayed for reasons directly attributable to the carrier, it is of the opinion that the standards required by the public service obligation have not or are not being met satisfactorily.

10.

Deadline for submission of bids: Thirty one (31) calendar days from publication of this communication in the Official Journal of the European Communities.

11.

Application procedure: Tenders must be submitted by registered letter, date as post-marked, or delivered to:

Department of Transport, 44 Kildare Street, IRL-Dublin 2, by 12.00 noon (Irish time) on the date in point 10, in envelopes marked ‘EASP Tender’.

12.

Validity of invitation to tender: In accordance with the first sentence of Article 4(1)(d) of Regulation (EEC) No 2408/92, the validity of this invitation to tender is subject to the condition that no Community air carriers presents, prior to deadline for submission of bids, a programme for operating the route in accordance with the public service obligation without receiving any financial compensation.

13.

Freedom of information Act, 1997: The Department of Transport undertakes to use its best endeavours to hold confidential any information provided by tenderers, subject to the Department's obligation under law, including the Freedom of Information (FOI) Act 1997 as amended by Freedom of Information Act 2003. If tenderers wish that any of the information supplied by them in their tenders should not be disclosed because of its commercial sensitivity, they should, when providing the information, identify same and specify the reasons for its sensitivity. The Department will consult with tenderers about this sensitive information before making a decision regarding release of the information under the provisions of the Freedom of Information Act. If tenderers consider that none of the information supplied by them is commercially sensitive, they should make a statement to that effect and such information may be released in response to an FOI request.

17.2.2005   

EN

Official Journal of the European Union

C 40/28

1.

Introduction: Ireland has amended the public service obligations published in the Official Journal of the European Communities C 66/07 and C 66/03 of 15 March 2002 pursuant to Article 4(1)(a) of Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, in respect of scheduled air services operated between Donegal — Dublin and between Sligo — Dublin with effect from 22 July 2005. The standards required by the revised public service obligation were published in the Official Journal of the European Union No C 39 of 16.2.2005.

Insofar as by one month of publication, no air carrier will have commenced or be about to commence such air services in accordance with the public service obligation and without requesting financial compensation, Ireland has decided, in accordance with the procedure laid down by Article 4(1)(d) of that Regulation, to continue to limit access to each route to a single air carrier from 22 July 2005 and to offer the right to operate such services by public tender.

2.

Object of invitation to tender: Operation from 22 July 2005 of direct scheduled air services on two separate routes: Donegal — Dublin, and Sligo — Dublin in accordance with the public service obligation imposed on those routes and published in the Official Journal of the European Union No C 39 of 16.2.2005.

The Right to operate these PSO services is being offered on the basis of a single contract for services on both routes.

3.

Participation: Participation is open to all air carriers holding a valid operating licence issued by a Member State in accordance with Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers. The services will operate to aerodromes under the jurisdiction of the Irish Aviation Authority.

4.

Tender procedure: The present tender is subject to the provisions of points d), e), f), g), h) and i) of Article 4(1) of Regulation (EEC) No 2408/92.

5.

Information for tenderers: The complete tendering dossier, including tender proposal form, financial information requirements, a note on demographic and socio-economic features of Sligo and Donegal, a note on each airport (past passenger numbers, landing fees, technical facilities, etc.) and the full conditions of the contract, may be obtained free of charge from:

Department of Transport, 44 Kildare Street, IRL-Dublin 2, Att: Mr Liam Keogh. Tel. (353-1) 604 15 94. Fax (353-1) 604 16 81. E-mail: liamkeogh@transport.ie.

6.

Information required from tenderers: In addition to a fully completed tender proposal form, tenderers are required to satisfy the awarding authority, having regard to the requirement for the services to commence on 22 July 2005 and to the requirements for reliability and continuity of services, that they have:

Subject to being satisfied in relation to each of a), b) and c) above, tenders will be evaluated according to which tender is the most economically advantageous, while also taking account of the carriers capacity to secure the operation of the PSO air services for the duration of the contract term. However, the awarding authority is not obliged to accept any tender. In certain circumstances, the Minister reserves the right to negotiate with bidders on a price related to his bid, but taking account of projected losses based on operating costs, projected yields etc.

The awarding authority reserves the right to solicit further information about any applicant's financial and/or technical resources and abilities, and without prejudice to the foregoing, to solicit or seek further information, whether from a third party or from the applicant, regarding the ability of the applicant to undertake and operate the relevant scheduled air services.

Tenders should be priced in euro and all supporting documents must be in the English language.

The contract shall be considered as a contract made under Irish law and subject to the exclusive jurisdiction of the Irish courts.

7.

Financial compensation: Tenders must explicitly state the amount of financial compensation required for the operation of the public service obligation on the route for each of the 3 years from the scheduled starting date. The compensation should be calculated in accordance with the required minimum standards.

The actual amount of the compensation payable by the Department of Transport will be determined annually, on an ex-post basis, and will be limited to the actual losses incurred, having regard to actual costs, revenues and if applicable, profit margin, by the successful tenderer in operating the services, subject, as a maximum, to the limit of the amount stated in respect of each year in the tender.

Payments may be claimed by the carrier on a regular instalment basis, in accordance with the procedures set out in the dossier, referred to at 5, above. A balancing payment will be payable at the end of each contract year, subject to receipt by the awarding authority of appropriately documented claims accompanied by certification from the carrier's auditors, in accordance with the terms of the contract.

The contract will include provision for the maximum limit of compensation in any year(s) to be increased, at the sole discretion of the awarding authority, in the event of changes in operating conditions. Without prejudice to the provisions governing the termination of the contract, the awarding authority will, in assessing any proposal for an increase in the maximum limit of subvention in any year(s), have due regard to developments affecting the operation of the services that were not or could not have been anticipated by the tenderer or are due to factors outside the control of the tenderer.

All payments under the contract will be in euro.

8.

Period of validity, amendment and termination of the contract: The contract will be awarded by the Minister for Transport. The contract will be valid for a period of 3 years from 22 July 2005. A new invitation to tender will be made, if applicable, before the end of a period of 3 years maximum from 22 July 2005. Any amendment or termination of the contract will be in accordance with the terms of the contract. Variations in the standards required by the public service obligation will be permitted only with the prior agreement of the awarding authority.

9.

Penalties in the event of the carrier failing to comply with the contract: Where a flight is cancelled for reasons directly attributable to the carrier, the compensation payable will only be in respect of costs, if any, actually incurred by the carriers in handling passengers disrupted by the non-operation of such flights. The awarding authority reserves the right to serve notice of termination of the contract, if having regard to the adequacy of service provided by the carrier and in particular to the number of flights cancelled and/or delayed for reasons directly attributable to the carrier, it is of the opinion that the standards required by the public service obligation have not or are not being met satisfactorily.

10.

Deadline for submission of bids: Thirty one (31) calendar days from publication of this communication in the Official Journal of the European Communities.

11.

Application procedure: Tenders must be submitted by registered letter, date as post-marked, or delivered to:

Department of Transport, 44 Kildare Street, IRL-Dublin 2, by 12.00 noon (Irish time) on the date in point 10, in envelopes marked ‘EASP Tender’.

12.

Validity of invitation to tender: In accordance with the first sentence of Article 4(1)(d) of Regulation (EEC) No 2408/92, the validity of this invitation to tender is subject to the condition that no Community air carrier presents, prior to deadline for submission of bids, a programme for operating the route in accordance with the public service obligation without receiving any financial compensation.

13.

Freedom of information Act, 1997: The Department of Transport undertakes to use its best endeavours to hold confidential any information provided by tenderers, subject to the Department's obligation under law, including the Freedom of Information (FOI) Act 1997 as amended by Freedom of Information Act 2003. If tenderers wish that any of the information supplied by them in their tenders should not be disclosed because of its commercial sensitivity, they should, when providing the information, identify same and specify the reasons for its sensitivity. The Department will consult with tenderers about this sensitive information before making a decision regarding release of the information under the provisions of the Freedom of Information Act. If tenderers consider that none of the information supplied by them is commercially sensitive, they should make a statement to that effect and such information may be released in response to an FOI request.

17.2.2005   

EN

Official Journal of the European Union

C 40/30

1.

Introduction: Ireland has amended the public service obligations published in the Official Journal of the European Communities C 265/07 of 15.9.2000 (as amended by corrigendum published in OJ C 276 of 28.9.2000) and C 66/06 of 15.3.2002 pursuant to Article 4(1)(a) of Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, in respect of scheduled air services operated between Knock — Dublin and Derry — Dublin, with effect from 22.7.2005. The standards required by the revised public service obligation were published in the Official Journal of the European Union No C 39 of 16.2.2005.

In so far as by one month of publication, no air carrier will have commenced or be about to commence such air services in accordance with the public service obligation and without requesting financial compensation, Ireland has decided, in accordance with the procedure laid down by Article 4(1)(d) of that Regulation, to continue to limit access to each route to a single air carrier from 22.7.2005 and to offer the right to operate such services by public tender.

2.

Object of invitation to tender: Operation from 22.7.2005 of direct scheduled air services on two separate routes: Knock — Dublin, and Derry — Dublin in accordance with the public service obligations imposed on those routes and published in the Official Journal of the European Union No C 39 of 16.2.2005.

The right to operate these PSO services is being offered on the basis of a single contract for services on both routes.

3.

Participation: Participation is open to all air carriers holding a valid operating licence issued by a Member State in accordance with Council Regulation (EEC) No 2407/92 of 23.7.1992 on licensing of air carriers. The services will operate to aerodromes under the jurisdiction of the Irish Aviation Authority.

4.

Tender procedure: The present tender is subject to the provisions of points d), e), f), g), h) and i) of Article 4(1) of Regulation (EEC) No 2408/92.

5.

Information for tenderers: The complete tendering dossier, including the tender proposal form, financial information requirements, a note on demographic and socio-economic features of Knock and Derry, a note on each airport (past passenger numbers, landing fees, technical facilities, etc.) and the full conditions of the contract, may be obtained free of charge from:

Department of Transport, Att: Mr Liam Keogh, 44 Kildare Street, IRL-Dublin 2. Tel.: (353-1) 604 15 94. Fax: (353-1) 604 16 81. E-mail: liamkeogh@transport.ie.

6.

Information required from tenderers: In addition to a fully completed tender proposal form, tenderers are required to satisfy the awarding authority, having regard to the requirement for the services to commence on 22.7.2005 and to the requirements for reliability and continuity of services, that they have:

Subject to being satisfied in relation to each of a), b) and c) above, tenders will be evaluated according to which tender is the most economically advantageous, while also taking account of the carrier's capacity to secure the operation of the PSO air services for the duration of the contract term. However, the awarding authority is not obliged to accept any tender. In certain circumstances, the Minister reserves the right to negotiate with bidders on a price related to his bid, but taking account of projected losses based on operating costs, projected yields etc.

The awarding authority reserves the right to solicit further information about any applicant's financial and/or technical resources and abilities, and without prejudice to the foregoing, to solicit or seek further information, whether from a third party or from the applicant, regarding the ability of the applicant to undertake and operate the relevant scheduled air services.

Tenders should be priced in euro and all supporting documents must be in the English language.

The contract shall be considered as a contract made under Irish law and subject to the exclusive jurisdiction of the Irish courts.

7.

Financial compensation: Tenders must explicitly state the amount of financial compensation required for the operation of the public service obligation on both routes for each of the 3 years from the scheduled starting date. The compensation should be calculated in accordance with the required minimum standards.

The actual amount of the compensation payable by the Department of Transport will be determined annually, on an ex-post basis, and will be limited to the actual losses incurred, having regard to actual costs, revenues and if applicable, profit margin, by the successful tenderer in operating the services, subject, as a maximum, to the limit of the amount stated in respect of each year in the tender.

Payments may be claimed by the carrier on a regular instalment basis, in accordance with the procedures set out in the dossier, referred to at 5, above. A balancing payment will be payable at the end of each contract year, subject to receipt by the awarding authority of appropriately documented claims accompanied by certification from the carrier's auditors, in accordance with the terms of the contract.

The contract will include provision for the maximum limit of compensation in any year(s) to be increased, at the sole discretion of the awarding authority, in the event of changes in operating conditions. Without prejudice to the provisions governing the termination of the contract, the awarding authority will, in assessing any proposal for an increase in the maximum limit of subvention in any year(s), have due regard to developments affecting the operation of the services that were not or could not have been anticipated by the tenderer or are due to factors outside the control of the tenderer.

All payments under the contract will be in euro.

8.

Period of validity, amendment and termination of the contract: The contract will be awarded by the Minister for Transport. The contract will be valid for a period of 3 years from 22.7.2005. A new invitation to tender will be made, if applicable, before the end of a period of 3 years maximum from 22.7.2005. Any amendment or termination of the contract will be in accordance with the terms of the contract. Variations in the standards required by the public service obligation will be permitted only with the prior agreement of the awarding authority.

9.

Penalties in the event of the carrier failing to comply with the contract: Where a flight is cancelled for reasons directly attributable to the carrier, the compensation payable will only be in respect of costs, if any, actually incurred by the carriers in handling passengers disrupted by the non-operation of such flights. The awarding authority reserves the right to serve notice of termination of the contract, if having regard to the adequacy of service provided by the carrier and in particular to the number of flights cancelled and/or delayed for reasons directly attributable to the carrier, it is of the opinion that the standards required by the public service obligation have not or are not being met satisfactorily.

10.

Deadline for submission of bids: Thirty-one (31) calendar days from publication of this communication in the Official Journal of the European Union.

11.

Application procedure: Tenders must be submitted by registered letter, date as post-marked, or delivered to:

Department of Transport, 44 Kildare Street, IRL-Dublin 2, by 12.00 noon (Irish time) on the date in point 10, in envelopes marked ‘EASP Tender’.

12.

Validity of invitation to tender: In accordance with the first sentence of Article 4(1)(d) of Regulation (EEC) No 2408/92, the validity of this invitation to tender is subject to the condition that no Community air carrier presents, prior to deadline for submission of bids, a programme for operating the route in accordance with the public service obligation without receiving any financial compensation.

13.

Freedom of Information Act, 1997: The Department of Transport undertakes to use its best endeavours to hold confidential any information provided by tenderers, subject to the Department's obligation under law, including the Freedom of Information (FOI) Act 1997 as amended by Freedom of Information Act 2003. If tenderers wish that any of the information supplied by them in their tenders should not be disclosed because of its commercial sensitivity, they should, when providing the information, identify same and specify the reasons for its sensitivity. The Department will consult with tenderers about this sensitive information before making a decision regarding release of the information under the provisions of the Freedom of Information Act. If tenderers consider that none of the information supplied by them is commercially sensitive, they should make a statement to that effect and such information may be released in response to an FOI request.