Commission Delegated Regulation (EU) 2023/2738 of 28 September 2023 amending Annex II to Regulation (EU) No 1233/2011 of the European Parliament and of the Council on the application of certain guidelines in the field of officially supported export credits

• — In the case of a contract for the sale of capital goods consisting of individual items usable in themselves, the latest starting point is the actual date when the buyer takes physical possession of the goods, or the weighted mean date when the buyer takes physical possession of the goods.

• — In the case of a contract for the sale of capital equipment for complete plant or factories where the supplier has no responsibility for commissioning, the latest starting point is the date at which the buyer is to take physical possession of the entire equipment (excluding spare parts) supplied under the contract.

• — If the exporter has responsibility for commissioning, the latest starting point is at commissioning.

• — For services, the latest starting point of credit is the date of the submission of the invoices to the client or acceptance of service by the client. In the case of a contract for the supply of services where the supplier has responsibility for commissioning, the latest starting point is commissioning.

• 1. Complete plants or factories – complete productive units of high value requiring the use of capital goods:

• — In the case of a contract for the sale of capital equipment for complete plant or factories where the supplier has no responsibility for commissioning, the latest starting point of credit is the date when the buyer takes physical possession of the entire equipment (excluding spare parts) supplied under the contract.

• — In case of construction contracts where the contractor has no responsibility for commissioning, the latest starting point is the date when construction has been completed.

• — In the case of any contract where the supplier or contractor has a contractual responsibility for commissioning, the latest starting point is the date when it has completed installation or construction and preliminary tests to ensure it is ready for operation. This applies whether or not it is handed over to the buyer at that time in accordance with the terms of the contract and irrespective of any continuing commitment which the supplier or contractor may have, e.g. for guaranteeing its effective functioning or training local personnel.

• — Where the contract involves the separate execution of individual parts of a project, the date of the latest starting point is the date of the starting point for each separate part, or the mean date of those starting points, or, where the supplier has a contract, not for the whole project but for an essential part of it, the starting point may be that appropriate to the project as a whole.

• — For services, the latest starting point of credit is the date of the submission of the invoices to the client or the acceptance of service by the client. In the case of a contract for the supply of services where the supplier has responsibility for commissioning, the latest starting point is commissioning.

• v) Tied Aid: aid which is in effect (in law or in fact) tied to the procurement of goods and/or services from the donor country and/or a restricted number of countries; it includes loans, grants or associated financing packages with a concessionality level greater than zero percent.

This definition applies whether the “tying” is by formal agreement or by any form of informal understanding between the recipient and the donor country, or whether a package includes components from the forms set out in Article 30 of the Arrangement that are not freely and fully available to finance procurement from the recipient country, substantially all other developing countries and from the Participants, or if it involves practices that the DAC or the Participants consider equivalent to such tying.

• w) Untied Aid: aid which includes loans or grants whose proceeds are fully and freely available to finance procurement from any country.

• x) Weighted Average Life of the Repayment Period: the time that it takes to retire one-half of the principal of a credit. This is calculated as the sum of time (in years) between the starting point of credit and each principal repayment weighted by the portion of principal repaid at each repayment date.

”

[^ntr1-L_202302738EN.000302-E0001]: As defined in Article 5 of the OECD Convention.

[^ntr2-L_202302738EN.000302-E0002]: Defined by the World Bank on an annual basis according to per capita GNI.

[^ntr3-L_202302738EN.000302-E0003]: For the purposes of the Arrangement, the term “power plant” comprises complete power plants or parts thereof, including all components, equipment, materials and services (including the training of personnel) directly required for the construction and commissioning of the plant. This does not include items for which the buyer is usually responsible, in particular costs associated with land development, roads, construction villages, power lines, and switchyard and water supply located outside the power plant site boundary, as well as costs arising in the buyer’s country from official approval procedures (e.g. site permits, construction permit, fuel loading permits).

[^ntr4-L_202302738EN.000302-E0004]: The status of a country in terms of: (1) whether it is a High Income country (as defined by the World Bank on an annual basis according to per capita GNI), (2) membership in the OECD and (3) whether it is part of the Euro Area is reviewed on an annual basis. The designation of a country under Article 21 c) as a High Income OECD country or a High Income Euro Area country as well as the removal of such designation will only come into effect after the country’s income classification (High Income or otherwise) has remained unchanged for two consecutive years. A change in a country’s designation as a High Income OECD country or a High Income Euro Area country as well as the removal of such designation related to a change in OECD membership or being part of the Euro Area will come into effect immediately at the time of the annual review of countries’ status.

[^ntr5-L_202302738EN.000302-E0005]: The assessment of whether or not a Multilateral or Regional Institution is generally exempt from the monetary control and transfer regulations of the country in which it is located shall be made based on the criteria set out in Annex VIII, The Participants shall maintain a list of the institutions deemed as meeting the criteria and, therefore, subject to the premium rates for Market Benchmark Transactions.

[^ntr6-L_202302738EN.000302-E0006]: To qualify as an asset-backed transaction, there must be a first priority security interest on the asset being financed; and, in the case of a lease structure, assignment and/or a first priority security interest in connection with the lease payments.

[^ntr7-L_202302738EN.000302-E0007]: To qualify as a project finance transaction, the transaction must involve the export of goods or services to an independent (legally and economically) project company whereby, (1) the cashflows and earnings of the project company are considered by the lender to be the source of funds from which a loan will be repaid and (2) the assets of the project company are considered by the lender to be collateral for the loan.

[^ntr8-L_202302738EN.000302-E0008]: This portion of the 25 % criterion may be met where the non-cash payment portion of a transaction involving a single bank receiving ECA cover includes an uncovered portion of at least 25 %. Such transactions must meet all of the other criteria of subparagraph 1, including the pari passu provisions of this tiret.

[^ntr9-L_202302738EN.000302-E0009]: Where the obligor/guarantor is rated by more than one Accredited CRA, the CRA rating is the best available foreign currency rating on a senior unsecured basis for the obligor (or guarantor). The Secretariat shall compile and maintain a list of such accredited CRAs.

[^ntr10-L_202302738EN.000302-E0010]: In the event that a relevant Name-Specific market pricing entity is not rated by an Accredited CRA, then the resulting market pricing shall be considered to be below the corresponding TCMB rate and be subject to prior notification in accordance with Article 44.

[^ntr11-L_202302738EN.000302-E0011]: The premium rates charged for transactions with a third party guarantee provided by an obligor in a Category 0 country, High Income OECD country, High Income Euro Area country, or by a multilateral or regional institution deemed as meeting the criteria set out in Annex VIII are subject to the requirements set out in Article 21 c).

[^ntr12-L_202302738EN.000302-E0012]: In the case of a third party guarantee, the applicable country risk classification and buyer risk category must be related to the same entity, i.e. either the obligor or the guarantor.

[^ntr13-L_202302738EN.000302-E0013]: For administrative purposes, some countries that are eligible to be classified into one of the eight Country Risk Categories may not be classified if they do not generally receive officially supported export credits. For such non-classified countries, Participants are free to apply the country risk classification which they deem appropriate.

[^ntr14-L_202302738EN.000302-E0014]: Rules related to the classification of buyers should be understood to stipulate the most favourable classification that can be applied, e.g. a sovereign buyer may be classified in a less favourable buyer risk classification.

[^ntr15-L_202302738EN.000302-E0015]: The MPRs associated with the Better than Sovereign (SOV+) buyer risk category are 10 % lower than the MPRs associated with the Sovereign (CC0) buyer risk category.

[^ntr16-L_202302738EN.000302-E0016]: Where the non-sovereign borrower is rated by more than one accredited CRA, notification is only required where the buyer risk rating is more favourable than the most favourable of the CRA ratings.

[^ntr17-L_202302738EN.000302-E0017]: Based on the annual review by the World Bank of its country classification, a per capita Gross National Income (GNI) threshold will be used for the purpose of tied aid eligibility; such threshold is available on the OECD website (https://www.oecd.org/trade/topics/export-credits/arrangement-and-sector-understandings/financing-terms-and-conditions/).

[^ntr18-L_202302738EN.000302-E0018]: With new CIRR rules having been agreed, the calculation of the DDR according to the approach provided in Article 36 a) is temporary pending further discussions by the Participants.

[^ntr19-L_202302738EN.003501-E0001]: In the case of a plant fuelled by natural gas, significantly lower carbon intensity is expected to be achieved.

[^ntr20-L_202302738EN.003501-E0002]: Boiler (or steam generator) energy conversion efficiency = (Net heat exported by the steam/heat or calorific value [LHV] provided by the fuel) (x 100 %).

[^ntr21-L_202302738EN.003501-E0003]: Gasifier efficiency = (Calorific value of gas per kg of fuel used/average net calorific value (LHV) of 1 kg of fuel) (x 100 %).

[^ntr22-L_202302738EN.003501-E0004]: IPCC Fourth Assessment Report: Climate Change 2007, http://www.ipcc.ch/publications_and_data/ ar4/wg3/en/ch4s4-3-5.html.

[^ntr23-L_202302738EN.003501-E0005]: The total system efficiency (Image omitted; see official sourceo) of a CHP system is the sum of the net useful power output (WE) and net useful thermal outputs (ΣQTH) divided by the total fuel input (QFUEL), as shown below:

Image omitted; see official source

[^ntr24-L_202302738EN.003501-E0006]: After 30 June 2024, this project type shall be discontinued unless Participants agree otherwise. At the same time, Participants will review international standards developed by then and decide whether they will incorporate them in this entry.

[^ntr25-L_202302738EN.003501-E0007]: Vessels shall be excluded from this project type as from three years after its entry into force, unless Participants agree otherwise.

[^ntr26-L_202302738EN.003501-E0008]: The specific types of track-bound transportation systems that are eligible for support according to the terms and conditions of this Appendix are: 1) Any type of rail transportation system. 2) Trolleybus transportation systems. 3) Cable car transportation systems. Cable car transportation systems associated with recreational activities such as skiing are not eligible for support under this Appendix.

[^ntr27-L_202302738EN.003501-E0009]: Illustrative list for associated infrastructure: control (signalling and other IT) systems, electrification, tracks, overhead wires and cables, pylons, battery charging infrastructure, hydrogen refuelling infrastructure, and related construction work.

[^ntr28-L_202302738EN.003501-E0010]: After 30 June 2024, this project class shall be discontinued unless Participants agree otherwise. At the same time, Participants will review international standards developed by then and decide whether they will incorporate them in this entry. A Participant may submit a proposal under this Project Class up until 30 June 2025, provided that Participant notifies other Participants by 30 June 2024 that they are preparing to bring forward a specific proposal.

[^ntr29-L_202302738EN.005101-E0001]: However, in cases where the buyer of the switchyard is the same as the buyer of the power plant and the contract is concluded in relation to the original switchyard for that power plant, the terms and conditions for the original switchyard shall not be more generous than those for the nuclear power plant.

[^ntr30-L_202302738EN.005301-E0001]: Ex-ante semi-annual repayment reporting requirement does not apply to small aircraft transactions with a total financed amount of less than USD 5 million (i.e., de minimis transactions).

[^ntr31-L_202302738EN.006501-E0001]: An explanation shall be provided where the proposed risk-rating of a buyer/borrower exceeds the risk rating of the host sovereign.

[^ntr32-L_202302738EN.006501-E0002]: For transactions with an export contract value of less than USD 5 million, a Participant not wishing to follow the risk classification procedure set out in Articles 6 to 8 of this Appendix shall apply the risk classification “8” for the buyer/borrower which is the subject of the transaction and shall notify the transaction in accordance with Article 24 a) of this Sector Understanding.

[^ntr33-L_202302738EN.006501-E0003]: For transactions with an export contract value of less than USD 5 million, a five working-day period shall apply.

[^ntr34-L_202302738EN.006501-E0004]: Together with information regarding any involvement (provided with due respect for confidentiality duties).

[^ntr35-L_202302738EN.007801-E0001]: Together with information regarding any involvement (provided with due respect for confidentiality duties).

[^ntr36-L_202302738EN.007801-E0002]: For the purposes of this questionnaire the “State” is the country that is being proposed for addition to the Cape Town Convention List under Appendix II, Section 2 II of the ASU. Where appropriate, these questions shall also be answered in respect of the laws of the particular “territorial unit” of the State in which the relevant operator of an aircraft [or other relevant body as set out in Article 35 (b) Appendix II] is located and “national law” shall be read as including a reference to the relevant local law.

[^ntr37-L_202302738EN.007801-E0003]: For the purposes of this questionnaire, ‘national law’ refers to all national legislation of a State, including but not limited to, the Constitution and its Amendments, any federal, state and district law or regulation.

[^ntr38-L_202302738EN.007801-E0004]: For example, that (i) treaties prevail over other law as a matter of constitutional or similar framework law in State X, or (ii) legislation is required in State X, and has been enacted expressly setting out the priority of the Cape Town Treaty and/or superseding such other law, or (iii) the Cape Town Treaty or its implementing legislation is (a) more specific than other law (lex specialis derogat legi generali), and/or (b) later in time than such other law (lex posterior derogat legi priori), and as a result of (a) and/or (b) prevails over such other law.

[^ntr39-L_202302738EN.007801-E0005]: For example, is there any reason why the rights and remedies granted to creditors under the Convention, including those granted under the QDs, would not (a) be recognised as being effective or (b) be sufficient by themselves, to enable such rights and remedies to be validly exercised in the State?

[^ntr40-L_202302738EN.007801-E0006]: An example of an administrative action for the purposes of this question might be the failure by the State to put in place any procedures or resources to give effect to a provision of the Convention or a Qualifying Declaration. Another example would be the failure by a State to put in place proper procedures in its aircraft registry for recording IDERAs.

[^ntr41-L_202302738EN.007801-E0007]: Please include in your analysis any precedent/decision relating to the recognition of rights of creditors, including ECAs, when relevant.

[^ntr42-L_202302738EN.008001-E0001]: It being understood that when swapping from a LIBOR based floating rate loan to a SOFR based swap rate loan, the credit adjusted spread, as found on the SOFR Libor Basis curve, based on the weighted average life and currency of the loan, shall be added to the swap rate. (For USD on Bloomberg the SOFR Libor Basis curve is found on page IRSB46)

[^ntr43-L_202302738EN.008001-E0002]: Based on the Historical Credit Adjustment published by Bloomberg on March 5, 2021 for USD 3 months YUS0003M Index at 0,26161

[^ntr1-L_202302738EN.008301-E0001]: Indicate the number of USD 300 million multiples in excess of USD 2 000 million.*

[^ntr2-L_202302738EN.009601-E0001]: Indicate the number of SDR 40 million multiples in excess of SDR 280 million, e.g. SDR 410 million would be notified as Category XV+3*.

[^ntr3-L_202302738EN.010201-E0001]: Indicate the number of SDR 40 million multiples in excess of SDR 280 million, e.g. SDR 410 million would be notified as Category XV+3*.

[^ntr44-L_202302738EN.011601-E0001]: Most typically this would be a risk on the central bank or Ministry of Finance. For central government entities other than the finance ministry, due diligence shall be undertaken to affirm that the entity commits the full faith and credit of the sovereign.

[^ntr45-L_202302738EN.012001-E0001]: For a Market Benchmark Transaction, the premium rate resulting from the application of buyer risk credit enhancements may not be lower than the applicable Minimum Actuarial Premium.

[^ntr46-L_202302738EN.012601-E0001]: Repayment Frequency for annual repayment = 1, for semi-annual repayments = 0,5 and for quarterly repayments = 0,25.

[^ntr47-L_202302738EN.012601-E0002]: tli = date of the ist installment; tsp = date of the starting point; Dli = amount paid at the ist installment.

[^ntr48-L_202302738EN.012601-E0003]: Following the discontinuation of Libor, Participants agreed on 30 December 2022 to implement a temporary margin of 100 basis points for all currencies for one year as of the implementation of the new CIRR rules (i.e., until 14 July 2024) or until Participants can agree to an alternative.

[^ntr49-L_202302738EN.012601-E0004]: If there is a reset of the CIRR, it resets the countdown for the number of months back to zero.

ELI: http://data.europa.eu/eli/reg_del/2023/2738/oj

ISSN 1977-0677 (electronic edition)