Legal provisions of COM(2014)341 - Procedures in order to ensure the exercise of the Union’s rights under international trade rules, in particular those established under the auspices of the WTO (codification) - Main contents
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dossier | COM(2014)341 - Procedures in order to ensure the exercise of the Union’s rights under international trade rules, in particular those ... |
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document | COM(2014)341 |
date | October 6, 2015 |
Contents
- Article 1 - Subject matter
- Article 2 - Definitions
- Article 3 - Complaint on behalf of the Union industry
- Article 4 - Complaint on behalf of Union enterprises
- Article 5 - Complaint procedures
- Article 6 - Request by a Member State
- Article 7 - Committee procedure
- Article 8 - Information to the European Parliament and to the Council
- Article 9 - Union examination procedure
- Article 10 - Confidentiality
- Article 11 - Evidence
- Article 12 - Termination and suspension of the procedure
- Article 13 - Adoption of commercial policy measures
- Article 14 - Decision-making procedures
- Article 15 - Report
- Article 16 - General provisions
- Article 17 - Repeal
- Article 18 - Entry into force
Article 1 - Subject matter
(a) | responding to obstacles to trade that have an effect on the market of the Union, with a view to removing the injury resulting therefrom; |
(b) | responding to obstacles to trade that have an effect on the market of a third country, with a view to removing the adverse trade effects resulting therefrom. |
The procedures referred to in the first paragraph shall be applied in particular to the initiation and subsequent conduct and termination of international dispute settlement procedures in the area of common commercial policy.
Article 2 - Definitions
(a) | ‘obstacles to trade’ means any trade practice adopted or maintained by a third country in respect of which international trade rules establish a right of action; such a right of action exists when international trade rules either prohibit a practice outright, or give another party affected by the practice a right to seek elimination of the effect of the practice in question; |
(b) | ‘the Union’s rights’ means the international trade rights of which the Union may avail itself under international trade rules; in this context, ‘international trade rules’ are primarily those established under the auspices of the WTO and laid down in the Annexes to the WTO Agreement, but they can also be those laid down in any other agreement to which the Union is a party and which sets out rules applicable to trade between the Union and third countries; |
(c) | ‘injury’ means any material injury which an obstacle to trade causes or threatens to cause, in respect of a product or service, to a Union industry, on the market of the Union; |
(d) | ‘adverse trade effects’ means the adverse effects which an obstacle to trade causes or threatens to cause, in respect of a product or service, to Union enterprises, on the market of any third country, and which have a material impact on the economy of the Union or of a region of the Union, or on a sector of economic activity in the Union; the fact that the complainant suffers from such adverse effects shall not be considered sufficient to justify, on its own, the Union institutions proceeding with any action; |
(e) | ‘Union industry’ means either:
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(f) | ‘Union enterprise’ means a company or firm formed in accordance with the law of a Member State and having its registered office, central administration or principal place of business within the Union, that is directly concerned by the production of goods or the provision of services which are the subject of the obstacle to trade; |
(g) | ‘services’ means those services in respect of which international agreements can be concluded by the Union on the basis of Article 207 of the Treaty. |
2. For the purposes of this Regulation, the notion of ‘providers of services’ in the context of both the term ‘Union industry’ and the term ‘Union enterprise’ is without prejudice to the non-commercial nature which the provision of any particular service may have according to the legislation or regulation of a Member State.
Article 3 - Complaint on behalf of the Union industry
2. The complaint shall contain sufficient evidence of the existence of the obstacles to trade and of the injury resulting therefrom. Evidence of injury shall be given on the basis of the illustrative list of factors set out in Article 11, where applicable.
Article 4 - Complaint on behalf of Union enterprises
2. The complaint shall contain sufficient evidence of the existence of the obstacles to trade and of the adverse trade effects resulting therefrom. Evidence of adverse trade effects shall be given on the basis of the illustrative list of factors set out in Article 11, where applicable.
Article 5 - Complaint procedures
2. The complaint may be withdrawn, in which case the procedure may be terminated unless such termination would not be in the interests of the Union.
3. Where it becomes apparent that the complaint does not provide sufficient evidence to justify initiating an investigation, the complainant shall be informed accordingly.
The Commission shall inform the Member States where it decides that the complaint does not provide sufficient evidence to justify initiating an investigation.
4. The Commission shall take a decision as soon as possible on the opening of a Union examination procedure following any complaint made in accordance with Article 3 or 4.
The decision shall be taken within 45 days of the lodging of the complaint. That period may be suspended at the request, or with the agreement, of the complainant, in order to allow for the provision of complementary information which may be needed to fully assess the validity of the complainant’s case.
Article 6 - Request by a Member State
2. The Member State shall supply the Commission with sufficient evidence to support its request, as regards obstacles to trade and of any effects resulting therefrom. Where evidence of injury or of adverse trade effects is appropriate, it shall be given on the basis of the illustrative list of factors set out in Article 11, where applicable.
3. The Commission shall notify the other Member States of the requests without delay.
4. Where it becomes apparent that the request does not provide sufficient evidence to justify initiating an investigation, the Member State shall be informed accordingly.
The Commission shall inform the Member States where it decides that the request does not provide sufficient evidence to justify initiating an investigation.
5. The Commission shall take a decision as soon as possible on the opening of a Union examination procedure following any request by a Member State made in accordance with this Article. The decision shall be taken within 45 days of the request. That period may be suspended at the request, or with the agreement, of the referring Member State, in order to allow for the provision of complementary information which may be needed to fully assess the validity of the case presented by the referring Member State.
Article 7 - Committee procedure
2. Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.
3. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 8 - Information to the European Parliament and to the Council
Article 9 - Union examination procedure
(a) | announce the initiation of an examination procedure in the Official Journal of the European Union; the announcement shall indicate the product or service and the countries concerned, give a summary of the information received, and provide that all relevant information is to be communicated to the Commission; it shall state the period within which interested parties may apply to be heard orally by the Commission in accordance with paragraph 5; |
(b) | officially notify the representatives of the country or countries which are the subject of the procedure and with whom, where appropriate, consultations may be held; |
(c) | conduct the examination at Union level, acting in cooperation with the Member States. |
The Commission shall inform the Member States where it decides that the complaint provides sufficient evidence to justify initiating an investigation.
2. Where necessary, the Commission shall:
(a) | seek all the information it deems necessary and attempt to check this information with importers, traders, agents, producers, trade associations and organisations, provided that the undertakings or organisations concerned give their consent; |
(b) | carry out investigations in the territory of third countries, provided that the governments of those countries have been officially notified and raised no objection within a reasonable time. |
The Commission shall be assisted in its investigations by officials of the Member State in whose territory the checks are carried out, provided that the Member State in question so requests.
3. Member States shall supply the Commission, upon request, with all information necessary for the examination, in accordance with the detailed arrangements laid down by the Commission.
4. The complainants and the exporters and importers concerned and the representatives of the country or countries concerned may:
(a) | inspect all information made available to the Commission except for internal documents for the use of the Commission and the administrations, provided that such information is relevant to the protection of their interests and not confidential within the meaning of Article 10 and that it is used by the Commission in its examination procedure; the persons concerned shall address a reasoned request in writing to the Commission, indicating the information required; |
(b) | ask to be informed of the principal facts and considerations resulting from the examination procedure. |
5. The Commission may hear the parties concerned. It shall hear them if they have, within the period prescribed in the notice published in the Official Journal of the European Union, made a written request for a hearing showing that they are a party primarily concerned by the result of the procedure.
6. The Commission shall, on request, give the parties primarily concerned an opportunity to meet, so that opposing views may be presented and any rebuttal argument put forward. In providing this opportunity the Commission shall take account of the wishes of the parties and of the need to preserve confidentiality. There shall be no obligation on any party to attend a meeting and failure to do so shall not be prejudicial to that party’s case.
7. Where the information requested by the Commission is not supplied within a reasonable time or where the investigation is significantly impeded, findings may be made on the basis of the facts available.
8. When it has concluded its examination the Commission shall report to the Committee. The report shall be presented within five months of the announcement of initiation of the procedure, unless the complexity of the examination is such that the Commission extends the period to seven months.
Article 10 - Confidentiality
2. The Commission and the Member States, including the officials of either, shall not reveal any information of a confidential nature received pursuant to this Regulation, or any information provided on a confidential basis by a party to an examination procedure, without specific permission from the party submitting such information.
Each request for confidential treatment shall indicate why the information is confidential and shall be accompanied by a non-confidential summary of the information or a statement of the reasons why the information is not capable of being summarised.
3. Information shall be considered to be confidential if its disclosure is likely to have a significantly adverse effect upon the supplier or the source of such information.
4. Where it appears that a request for confidentiality is not warranted and if the supplier is unwilling either to make the information public or to authorise its disclosure in generalised or summary form, the information in question may be disregarded.
5. This Article shall not preclude the disclosure of general information by the Union authorities and in particular of the reasons on which decisions taken pursuant to this Regulation are based. Such disclosure shall take into account the legitimate interest of the parties concerned that their business secrets shall not be divulged.
Article 11 - Evidence
(a) | the volume of Union imports or exports concerned, notably where there has been a significant increase or decrease, either in absolute terms or relative to production or consumption on the market in question; |
(b) | the prices of the Union industry’s competitors, in particular in order to determine whether there has been, either in the Union or on third country markets, significant undercutting of the prices of the Union industry; |
(c) | the consequent impact on the Union industry and as indicated by trends in certain economic factors such as: production, capacity utilisation, stocks, sales, market share, prices (that is to say depression of prices or prevention of price increases which would normally have occurred), profits, return on capital, investment, employment. |
2. Where a threat of injury is alleged, the Commission shall also examine whether it is clearly foreseeable that a particular situation is likely to develop into actual injury. In this regard, account may also be taken of factors such as:
(a) | the rate of increase of exports to the market where the competition with Union products is taking place; |
(b) | export capacity in the country of origin or export, which is already in existence or will be operational in the foreseeable future, and the likelihood that the exports resulting from that capacity will be to the market referred to in point (a). |
3. Injury caused by other factors which, either individually or in combination, are also adversely affecting the Union industry shall not be attributed to the practices under consideration.
4. Where adverse trade effects are alleged, the Commission shall examine the impact of such adverse effects on the economy of the Union or of a region of the Union, or on a sector of economic activity therein. To this effect, the Commission may take into account, where relevant, factors of the type listed in paragraphs 1 and 2. Adverse trade effects may arise, inter alia, in situations in which trade flows concerning a product or service are prevented, impeded or diverted as a result of any obstacle to trade, or from situations in which obstacles to trade have materially affected the supply or inputs, for example parts and components or raw materials, to Union enterprises. Where a threat of adverse trade effects is alleged, the Commission shall also examine whether it is clearly foreseeable that a particular situation is likely to develop into actual adverse trade effects.
5. The Commission shall also, in examining evidence of adverse trade effects, have regard to the provisions, principles or practice which govern the right of action under relevant international rules referred to in Article 2(1)(a).
6. The Commission shall further examine any other relevant evidence contained in the complaint or in the request. In this respect, the list of factors and the indications given in paragraphs 1 to 5 are not exhaustive, nor can one or several of such factors and indications necessarily give decisive guidance as to the existence of injury or of adverse trade effects.
Article 12 - Termination and suspension of the procedure
2. When, after an examination procedure conducted pursuant to Article 9, the third country or countries concerned take(s) measures which are considered satisfactory, and therefore no action by the Union is required, the procedure may be suspended by the Commission acting in accordance with the advisory procedure referred to in Article 7(2).
The Commission shall supervise the application of those measures, where appropriate on the basis of information supplied at intervals, which it may request from the third countries concerned and check as necessary.
Where the measures taken by the third country or countries concerned have been rescinded, suspended or improperly implemented or where the Commission has grounds for believing this to be the case or, where information requested by the Commission pursuant to the second subparagraph of this paragraph has not been provided, the Commission shall inform the Member States, and where necessary and justified by the results of the investigation and the new facts available, any measures shall be taken in accordance with Article 14(2).
3. Where, either after an examination procedure conducted pursuant to Article 9, or at any time before, during or after an international dispute settlement procedure, it appears that the most appropriate means of resolving a dispute arising from an obstacle to trade is the conclusion of an agreement with the third country or countries concerned which may change the substantive rights of the Union and of the third country or countries concerned, the procedure shall be suspended by the Commission acting in accordance with the advisory procedure referred to in Article 7(2), and negotiations shall be carried out in accordance with the provisions of Article 207 of the Treaty.
Article 13 - Adoption of commercial policy measures
2. Where the Union’s international obligations require the prior discharge of an international procedure for consultation or for the settlement of disputes, the measures referred to in paragraph 3 shall only be determined after that procedure has been terminated, and taking account of the results of the procedure. In particular, where the Union has requested an international dispute settlement body to indicate and authorise the measures which are appropriate for the implementation of the results of an international dispute settlement procedure, the Union commercial policy measures which may be needed in consequence of such authorisation shall be in accordance with the recommendation of such international dispute settlement body.
3. Any commercial policy measures may be taken which are compatible with existing international obligations and procedures, notably:
(a) | suspension or withdrawal of any concession resulting from commercial policy negotiations; |
(b) | the raising of existing customs duties or the introduction of any other charge on imports; |
(c) | the introduction of quantitative restrictions or any other measures modifying import or export conditions or otherwise affecting trade with the third country concerned. |
4. The corresponding decisions shall state the reasons on which they are based and shall be published in the Official Journal of the European Union. Publication shall also be deemed to constitute notification to the countries and parties primarily concerned.
Article 14 - Decision-making procedures
The Commission shall inform the Member States in the event that it decides to initiate, conduct or terminate formal international consultations or dispute settlement procedures.
2. Where the Union, having acted in accordance with Article 13(2), has to take a decision on the measures of commercial policy to be adopted pursuant to the third subparagraph of Article 12(2) or pursuant to Article 13, it shall act, without delay, in accordance with Article 207 of the Treaty and, as appropriate, Regulation (EU) No 654/2014 of the European Parliament and of the Council (6) or any other applicable procedures.
Article 15 - Report
Article 16 - General provisions
(a) | the rules establishing the common organisation of agricultural markets and their implementing provisions; and |
(b) | the specific rules adopted pursuant to Article 352 of the Treaty, applicable to goods processed from agricultural products. |
It shall be without prejudice to other measures which may be taken pursuant to Article 207 of the Treaty, as well as to Union procedures for dealing with matters concerning obstacles to trade raised by Member States in the committee established by Article 207 of the Treaty.
Article 17 - Repeal
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.
Article 18 - Entry into force
This Regulation shall be binding in its entirety and directly applicable in all Member States.