of 6 October 1997
on protection against subsidized imports from countries not members of the European Community (repealed)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 113 thereof,
Having regard to the Regulations establishing the common organization of agricultural markets and the Regulations adopted pursuant to Article 235 of the Treaty applicable to goods manufactured from agricultural products, and in particular the provisions of those Regulations which allow for derogation from the general principle that protective measures at frontiers may be replaced solely by the measures provided for in those Regulations,
Having regard to the proposal from the Commission
Whereas, by Regulation (EEC) No 2423/88
OJ L 209, 2. 8. 1988, p. 1. Regulation as last amended by Regulation (EC) No 522/94 (OJ L 66, 10. 3. 1994, p. 10).
Whereas those rules were adopted in accordance with existing international obligations, in particular those arising from Article VI of the General Agreement on Tariffs and Trade (‘the GATT’), from the Agreement on Implementation of Article VI of the GATT (‘the 1979 Anti-Dumping Code’) and from the Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the GATT (Code on Subsidies and Countervailing Duties);
Whereas the conclusion of the Uruguay Round of multilateral trade negotiations has led to the establishment of the World Trade Organization (‘the WTO’);
Whereas Annex 1A to the Agreement establishing the WTO (‘the WTO Agreement’), approved by Decision 94/800/EC
Whereas, in order to reach greater transparency and effectiveness in the application by the Community of the rules laid down in the 1994 Anti-Dumping Agreement and the Subsidies Agreement respectively, it is considered necessary to adopt two separate Regulations which will lay down in sufficient detail the requirements for the application of each of these commercial defence instruments;
Whereas it is therefore appropriate to amend Community rules governing the application of countervailing measures in the light of the new multilateral rules, with regard inter alia to the procedures for initiation of proceedings and the conduct of subsequent investigations, including the establishment and treatment of the facts, the imposition of provisional measures, the imposition and collection of countervailing duties, the duration and review of countervailing measures, and the public disclosure of information relating to countervailing investigations;
Whereas, in view of the extent of the changes brought about by the new Agreements and to ensure an adequate and transparent implementation of the new rules, it is appropriate to transpose the language of the new Agreements into Community legislation to the extent possible;
Whereas, furthermore, it seems advisable to explain, in adequate detail, when a subsidy shall be deemed to exist, according to which principles it shall be countervailable (in particular whether the subsidy has been granted specifically), and according to which criteria the amount of the countervailable subsidy is to be calculated;
Whereas, in determining the existence of a subsidy, it is necessary to demonstrate that there has been a financial contribution by a government or any public body within the territory of a country, or that there has been some form of income or price support within the meaning of Article XVI of the GATT 1994, and that a benefit has thereby been conferred on the recipient enterprise;
Whereas it is necessary to explain in sufficient detail which kind of subsidies are not countervailable and which procedure shall be followed if, during an investigation, it is determined that an enterprise undergoing investigation has received non-countervailable subsidies;
Whereas the Subsidies Agreement states that the provisions concerning non-countervailable subsidies shall cease to apply five years after the date of entry into force of the WTO Agreement, unless they are extended by mutual agreement of the members of the WTO; whereas it may therefore be necessary to amend this Regulation accordingly if the validity of those provisions is not so extended;
Whereas the measures listed in Annex 2 to the Agreement on Agriculture are non-countervailable, to the extent provided for in that Agreement;
Whereas it is desirable to lay down clear and detailed guidance as to the factors which may be relevant for the determination of whether the subsidized imports have caused material injury or are threatening to cause injury; whereas, in demonstrating that the volume and price levels of the imports concerned are responsible for injury sustained by a Community industry, attention should be given to the effect of other factors and in particular prevailing market conditions in the Community;
Whereas it is advisable to define the term ‘Community industry’ and to provide that parties related to exporters may be excluded from such industry, and to define the term ‘related’; whereas it is also necessary to provide for countervailing duty action to be taken on behalf of producers in a region of the Community and to lay down guidelines on the definition of such region;
Whereas it is necessary to lay down who may lodge a countervailing duty complaint, including the extent to which it should be supported by the Community industry, and the information on countervailable subsidies, injury and causation which such complaint should contain; whereas it is also expedient to specify the procedures for the rejection of complaints or the initiation of proceedings;
Whereas it is necessary to lay down the manner in which interested parties should be given notice of the information which the authorities require, and should have ample opportunity to present all relevant evidence and to defend their interests; whereas it is also desirable to set out clearly the rules and procedures to be followed during the investigation, in particular the rules whereby interested parties are to make themselves known, present their views and submit information within specified time limits, if such views and information are to be taken into account; whereas it is also appropriate to set out the conditions under which an interested party may have access to, and comment on, information presented by other interested parties; whereas there should also be cooperation between the Member States and the Commission in the collection of information;
Whereas it is necessary to lay down the conditions under which provisional duties may be imposed, including conditions whereby they may be imposed no earlier than 60 days from initiation and not later than nine months thereafter; whereas such duties may in all cases be imposed by the Commission only for a four-month period;
Whereas it is necessary to specify procedures for the acceptance of undertakings eliminating or offsetting the countervailable subsidies and injury in lieu of the imposition of provisional or definitive duties; whereas it is also appropriate to lay down the consequences of breach or withdrawal of undertakings and that provisional duties may be imposed in cases of suspected violation or where further investigation is necessary to supplement the findings; whereas, in accepting undertakings, care should be taken that the proposed undertakings, and their enforcement, do not lead to anti-competitive behaviour;
Whereas it is necessary to provide that the termination of cases should, irrespective of whether definitive measures are adopted or not, normally take place within 12 months, and in no case later than 13 months, from the initiation of the investigation;
Whereas an investigation or proceeding should be terminated whenever the amount of the subsidy is found to be de minimis or if, particularly in the case of imports originating in developing countries, the volume of subsidized imports or the injury is negligible, and it is appropriate to define those criteria; whereas, where measures are to be imposed, it is necessary to provide for the termination of investigations and to lay down that measures should be less than the amount of countervailable subsidies if such lesser amount would remove the injury, and also to specify the method of calculating the level of measures in cases of sampling;
Whereas it is necessary to provide for the retroactive collection of provisional duties if that is deemed appropriate and to define the circumstances which may trigger the retroactive application of duties in order to avoid the undermining of the definitive measures to be applied; whereas it is also necessary to provide that duties may be applied retroactively in cases of breach or withdrawal of undertakings;
Whereas it is necessary to provide that measures are to lapse after five years unless a review indicates that they should be maintained; whereas it is also necessary to provide, in cases where sufficient evidence is submitted of changed circumstances, for interim reviews or for investigations to determine whether refunds of countervailing duties are warranted;
Whereas, even though the Subsidies Agreement does not contain provisions concerning circumvention of countervailing measures, the possibility of such circumvention exists, in terms similar, albeit not identical, to the circumvention of anti-dumping measures; whereas it appears therefore appropriate to enact an anti-circumvention provision in this Regulation;
Whereas it is expedient to permit the suspension of countervailing measures where there is a temporary change in market conditions which makes the continued imposition of such measures temporarily inappropriate;
Whereas it is necessary to provide that imports under investigation may be made subject to registration upon importation in order to enable measures to be subsequently applied against such imports;
Whereas, in order to ensure proper enforcement of measures, it is necessary that Member States monitor, and report to the Commission, the import trade in products subject to investigation or subject to measures, and also the amount of duties collected under this Regulation;
Whereas it is necessary to provide for consultation of an Advisory Committee at regular and specified stages of the investigation; whereas the Committee should consist of representatives of Member States with a representative of the Commission as chairman;
Whereas it is expedient to provide for verification visits to check information submitted on countervailable subsidies and injury, such visits being, however, conditional on proper replies to questionnaires being received;
Whereas it is essential to provide for sampling in cases where the number of parties or transactions is large in order to permit completion of investigations within the appointed time limits;
Whereas, it is necessary to provide that, where parties do not cooperate satisfactorily, other information may be used to establish findings and that such information may be less favourable to the parties than if they had cooperated;
Whereas provision should be made for the treatment of confidential information so that business or governmental secrets are not divulged;
Whereas it is essential that provision be made for proper disclosure of essential facts and considerations to parties which qualify for such treatment and that such disclosure be made, with due regard to the decision-making process in the Community, within a time period which permits parties to defend their interests;
Whereas it is prudent to provide for an administrative system under which arguments can be presented as to whether measures are in the Community interest, including the interests of consumers, and to lay down the time periods within which such information has to be presented, together with the disclosure rights of the parties concerned;
Whereas in applying the rules of the Subsidies Agreement it is essential, in order to maintain the balance of rights and obligations which this Agreement sought to establish, that the Community take account of their interpretation by the Community's major trading partners, as reflected in legislation or established practice;
Whereas, by Regulation (EC) No 3284/94 of 22 December 1994 on protection against subsidized imports from countries not members of the European Community
OJ L 349, 31. 12. 1994, p. 22. Regulation as amended by Regulation (EC) No 1252/95 (OJ L 122, 2. 6. 1995, p. 2).
Whereas drafting problems in the text of Regulation (EC) No 3284/94 became apparent on publication; whereas, moreover, the Regulation has already been amended;
Whereas, in the interests of clarity, transparency and legal certainty, that Regulation should therefore be repealed and replaced, without prejudice to the countervailing proceedings already initiated under it or under Regulation (EEC) No 2423/88,
HAS ADOPTED THIS REGULATION: