# Official Journal L 176/2016

| | ISSN 1977-0677 |
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| Official Journal
  of the European Union | L 176 |
| | |
| English edition | Legislation | Volume 5930 June 2016 |

ISSN 1977-0677

Official Journal

of the European Union

L 176

English edition

Legislation

Volume 5930 June 2016

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| Contents | | I   Legislative acts | page |
| --- | --- | --- | --- |
| | | REGULATIONS |
| | * | Regulation (EU) 2016/1035 of the European Parliament and of the Council of 8 June 2016 on protection against injurious pricing of vessels | 1 |
| | * | Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union | 21 |
| | * | Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union | 55 |

Contents

I   Legislative acts

page

REGULATIONS

*

Regulation (EU) 2016/1035 of the European Parliament and of the Council of 8 June 2016 on protection against injurious pricing of vessels

1

*

Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union

21

*

Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union

55

| EN | Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.
  The titles of all other Acts are printed in bold type and preceded by an asterisk. |
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EN

Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.

The titles of all other Acts are printed in bold type and preceded by an asterisk.

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I Legislative acts

REGULATIONS

| 30.6.2016 | EN | Official Journal of the European Union | L 176/1 |
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30.6.2016

EN

Official Journal of the European Union

L 176/1

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REGULATION (EU) 2016/1035 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 8 June 2016

on protection against injurious pricing of vessels

(codification)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure (1),

Whereas:

| (1) | Council Regulation (EC) No 385/96 (2) has been substantially amended (3). In the interests of clarity and rationality, that Regulation should be codified. |
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(1)

Council Regulation (EC) No 385/96 (2) has been substantially amended (3). In the interests of clarity and rationality, that Regulation should be codified.

| (2) | Multilateral negotiations conducted under the auspices of the Organisation for Economic Cooperation and Development led to the conclusion, on 21 December 1994, of an Agreement Respecting Normal Competitive Conditions in the Commercial Shipbuilding and Repair Industry (‘the Shipbuilding Agreement’). |
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(2)

Multilateral negotiations conducted under the auspices of the Organisation for Economic Cooperation and Development led to the conclusion, on 21 December 1994, of an Agreement Respecting Normal Competitive Conditions in the Commercial Shipbuilding and Repair Industry (‘the Shipbuilding Agreement’).

| (3) | It has been recognised in the framework of the Shipbuilding Agreement that the special characteristics of ship-purchase transactions have made it impractical to apply countervailing and anti-dumping duties, as provided for under Article VI of the General Agreement on Tariffs and Trade, the Agreement on Subsidies and Countervailing Measures, and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the 1994 Anti-Dumping Agreement’) annexed to the Agreement establishing the World Trade Organisation. The need to provide for an effective means of protection against sales of ships below their normal value which cause injury has led to the conclusion of a Shipbuilding Injurious Pricing Code which, together with its Basic Principles, constitutes Annex III to the Shipbuilding Agreement (‘the IPI Code’). |
| --- | --- |

(3)

It has been recognised in the framework of the Shipbuilding Agreement that the special characteristics of ship-purchase transactions have made it impractical to apply countervailing and anti-dumping duties, as provided for under Article VI of the General Agreement on Tariffs and Trade, the Agreement on Subsidies and Countervailing Measures, and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the 1994 Anti-Dumping Agreement’) annexed to the Agreement establishing the World Trade Organisation. The need to provide for an effective means of protection against sales of ships below their normal value which cause injury has led to the conclusion of a Shipbuilding Injurious Pricing Code which, together with its Basic Principles, constitutes Annex III to the Shipbuilding Agreement (‘the IPI Code’).

| (4) | The text of the IPI Code is mainly based on the 1994 Anti-Dumping Agreement, but deviates from that Agreement when warranted by the specific nature of ship-purchase transactions. Therefore, the language of the IPI Code should be reflected in Union legislation, to the extent possible on the basis of the text of Regulation (EU) 2016/1036 of the European Parliament and of the Council (4). |
| --- | --- |

(4)

The text of the IPI Code is mainly based on the 1994 Anti-Dumping Agreement, but deviates from that Agreement when warranted by the specific nature of ship-purchase transactions. Therefore, the language of the IPI Code should be reflected in Union legislation, to the extent possible on the basis of the text of Regulation (EU) 2016/1036 of the European Parliament and of the Council (4).

| (5) | The Shipbuilding Agreement and the legislative provisions deriving therefrom are of significant importance for Union law. |
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(5)

The Shipbuilding Agreement and the legislative provisions deriving therefrom are of significant importance for Union law.

| (6) | To maintain the balance of rights and obligations which the Shipbuilding Agreement establishes, action should be taken by the Union against any injuriously priced vessel whose sale at less than normal value causes injury to the Union industry. |
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(6)

To maintain the balance of rights and obligations which the Shipbuilding Agreement establishes, action should be taken by the Union against any injuriously priced vessel whose sale at less than normal value causes injury to the Union industry.

| (7) | As regards shipbuilders from Contracting Parties to the Shipbuilding Agreement, the sale of a vessel may be subject to an investigation by the Union only when the buyer of the vessel is a Union buyer, and provided the ship is not a military vessel. |
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(7)

As regards shipbuilders from Contracting Parties to the Shipbuilding Agreement, the sale of a vessel may be subject to an investigation by the Union only when the buyer of the vessel is a Union buyer, and provided the ship is not a military vessel.

| (8) | It is desirable to set out clear and detailed rules on the calculation of the normal value. In particular, such value should, where possible, be based on a representative sale of a like vessel in the ordinary course of trade in the exporting country. It is expedient to define the circumstances in which a domestic sale may be considered to be made at a loss and may be disregarded, and in which recourse may be had to sale of a like vessel to a third country, or to constructed normal value. It is also desirable to provide for a proper allocation of costs, even in start-up situations. It is also necessary, when constructing the normal value, to indicate the methodology to be applied in determining the amounts for selling, general and administrative costs and the profit margin that should be included in such value. |
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(8)

It is desirable to set out clear and detailed rules on the calculation of the normal value. In particular, such value should, where possible, be based on a representative sale of a like vessel in the ordinary course of trade in the exporting country. It is expedient to define the circumstances in which a domestic sale may be considered to be made at a loss and may be disregarded, and in which recourse may be had to sale of a like vessel to a third country, or to constructed normal value. It is also desirable to provide for a proper allocation of costs, even in start-up situations. It is also necessary, when constructing the normal value, to indicate the methodology to be applied in determining the amounts for selling, general and administrative costs and the profit margin that should be included in such value.

| (9) | In order to be able to apply correctly the instrument for combating injurious pricing, the Commission should take all necessary steps to ascertain, in the large conglomerates and holdings of third countries, the validity of accounting charges when the cost price structure needs to be estimated. |
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(9)

In order to be able to apply correctly the instrument for combating injurious pricing, the Commission should take all necessary steps to ascertain, in the large conglomerates and holdings of third countries, the validity of accounting charges when the cost price structure needs to be estimated.

| (10) | When determining the normal value for non-market economy countries, it appears prudent to set out rules for choosing the appropriate market-economy third country to be used for such purpose and, where it is not possible to find a suitable third country, to provide that the normal value may be established on any other reasonable basis. |
| --- | --- |

(10)

When determining the normal value for non-market economy countries, it appears prudent to set out rules for choosing the appropriate market-economy third country to be used for such purpose and, where it is not possible to find a suitable third country, to provide that the normal value may be established on any other reasonable basis.

| (11) | It is expedient to define the export price and to enumerate the adjustments which should be made in those cases where a reconstruction of that price from the first open-market price is deemed necessary. |
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(11)

It is expedient to define the export price and to enumerate the adjustments which should be made in those cases where a reconstruction of that price from the first open-market price is deemed necessary.

| (12) | For the purpose of ensuring a fair comparison between the export price and the normal value, it is advisable to list the factors, including contractual penalties, which may affect prices and price comparability. |
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(12)

For the purpose of ensuring a fair comparison between the export price and the normal value, it is advisable to list the factors, including contractual penalties, which may affect prices and price comparability.

| (13) | It is desirable to provide clear and detailed guidance as to the factors which may be relevant for the determination of whether the injuriously priced sale has caused material injury or is threatening to cause injury. In demonstrating that the price level of the sale concerned is responsible for injury sustained by the Union industry, attention should be given to the effect of other factors and, in particular, prevailing market conditions in the Union. |
| --- | --- |

(13)

It is desirable to provide clear and detailed guidance as to the factors which may be relevant for the determination of whether the injuriously priced sale has caused material injury or is threatening to cause injury. In demonstrating that the price level of the sale concerned is responsible for injury sustained by the Union industry, attention should be given to the effect of other factors and, in particular, prevailing market conditions in the Union.

| (14) | It is advisable to define the term ‘Union industry’ by reference to the capability to build a like vessel and to provide that parties related to exporters may be excluded from such an industry, and to define the term ‘related’. |
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(14)

It is advisable to define the term ‘Union industry’ by reference to the capability to build a like vessel and to provide that parties related to exporters may be excluded from such an industry, and to define the term ‘related’.

| (15) | It is necessary to set out the procedural and substantive conditions for lodging a complaint against injurious pricing, including the extent to which it should be supported by the Union industry, and the information on the buyer of the vessel, injurious pricing, injury and causation which such a complaint should contain. It is also expedient to specify the procedures for the rejection of complaints or the initiation of proceedings. |
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(15)

It is necessary to set out the procedural and substantive conditions for lodging a complaint against injurious pricing, including the extent to which it should be supported by the Union industry, and the information on the buyer of the vessel, injurious pricing, injury and causation which such a complaint should contain. It is also expedient to specify the procedures for the rejection of complaints or the initiation of proceedings.

| (16) | When the buyer of the injuriously priced vessel is established in the territory of another Contracting Party to the Shipbuilding Agreement, a complaint may also contain a request that an investigation be initiated by the authorities of that Contracting Party. Such request should be transmitted to the authorities of the Contracting Party, where warranted. |
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(16)

When the buyer of the injuriously priced vessel is established in the territory of another Contracting Party to the Shipbuilding Agreement, a complaint may also contain a request that an investigation be initiated by the authorities of that Contracting Party. Such request should be transmitted to the authorities of the Contracting Party, where warranted.

| (17) | Where appropriate, an investigation may also be initiated upon a written complaint by the authorities of a Contracting Party to the Shipbuilding Agreement, in accordance with this Regulation and under the conditions of the Shipbuilding Agreement. |
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(17)

Where appropriate, an investigation may also be initiated upon a written complaint by the authorities of a Contracting Party to the Shipbuilding Agreement, in accordance with this Regulation and under the conditions of the Shipbuilding Agreement.

| (18) | It is necessary to specify the manner in which interested parties should be given notice of the information which the authorities require. Interested parties should have ample opportunity to present all relevant evidence and to defend their interests. 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. 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. There should also be cooperation between the Member States and the Commission in the collection of information. |
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(18)

It is necessary to specify the manner in which interested parties should be given notice of the information which the authorities require. Interested parties should have ample opportunity to present all relevant evidence and to defend their interests. 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. 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. There should also be cooperation between the Member States and the Commission in the collection of information.

| (19) | It is necessary to provide that the termination of cases should, irrespective of whether an injurious pricing charge is imposed or not, take place no later than 1 year from the date of initiation or the date of delivery of the vessel, as the case may be. |
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(19)

It is necessary to provide that the termination of cases should, irrespective of whether an injurious pricing charge is imposed or not, take place no later than 1 year from the date of initiation or the date of delivery of the vessel, as the case may be.

| (20) | Investigations or proceedings should be terminated where the margin of injurious pricing is de minimis. |
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(20)

Investigations or proceedings should be terminated where the margin of injurious pricing is de minimis.

| (21) | The investigation may be terminated without the imposition of an injurious pricing charge if the sale of the injuriously priced vessel is definitively and unconditionally voided or if an alternative equivalent remedy is accepted. However, the need to avoid jeopardising achievement of the aim pursued under this Regulation should be given special consideration. |
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(21)

The investigation may be terminated without the imposition of an injurious pricing charge if the sale of the injuriously priced vessel is definitively and unconditionally voided or if an alternative equivalent remedy is accepted. However, the need to avoid jeopardising achievement of the aim pursued under this Regulation should be given special consideration.

| (22) | An injurious pricing charge equal to the amount of the injurious pricing margin should be imposed by decision on the shipbuilder whose injuriously priced sale of a vessel has caused injury to the Union industry, where all the conditions provided for in this Regulation are fulfilled. Precise and detailed rules should be laid down for the implementation of such decision, including all measures necessary for its actual enforcement, in particular the taking of countermeasures if the shipbuilder does not pay the injurious pricing charge within the applicable time limit. |
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(22)

An injurious pricing charge equal to the amount of the injurious pricing margin should be imposed by decision on the shipbuilder whose injuriously priced sale of a vessel has caused injury to the Union industry, where all the conditions provided for in this Regulation are fulfilled. Precise and detailed rules should be laid down for the implementation of such decision, including all measures necessary for its actual enforcement, in particular the taking of countermeasures if the shipbuilder does not pay the injurious pricing charge within the applicable time limit.

| (23) | It is necessary to set out precise rules for the denial of the right to load and unload in Union ports to vessels built by shipbuilders subject to countermeasures. |
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(23)

It is necessary to set out precise rules for the denial of the right to load and unload in Union ports to vessels built by shipbuilders subject to countermeasures.

| (24) | The obligation to pay the injurious pricing charge expires only when such charge is fully paid or at the end of the period during which the countermeasures are applicable. |
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(24)

The obligation to pay the injurious pricing charge expires only when such charge is fully paid or at the end of the period during which the countermeasures are applicable.

| (25) | Any action taken under this Regulation should not be contrary to the Union interest. |
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(25)

Any action taken under this Regulation should not be contrary to the Union interest.

| (26) | In acting pursuant to this Regulation, the Union should bear in mind the need for rapid and effective action. |
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(26)

In acting pursuant to this Regulation, the Union should bear in mind the need for rapid and effective action.

| (27) | It is expedient to provide for verification visits to check information submitted on injurious pricing and injury, such visits being, however, conditional on proper replies to questionnaires being received. |
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(27)

It is expedient to provide for verification visits to check information submitted on injurious pricing and injury, such visits being, however, conditional on proper replies to questionnaires being received.

| (28) | 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. |
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(28)

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.

| (29) | Provision should be made for the treatment of confidential information so that business secrets are not divulged. |
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(29)

Provision should be made for the treatment of confidential information so that business secrets are not divulged.

| (30) | It is essential that provision be made for the proper disclosure of the 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 Union, within a time period which permits parties to defend their interests. |
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(30)

It is essential that provision be made for the proper disclosure of the 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 Union, within a time period which permits parties to defend their interests.

| (31) | The implementation of the procedures provided for in this Regulation requires uniform conditions for the adoption of measures necessary for its implementation in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (5), |
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(31)

The implementation of the procedures provided for in this Regulation requires uniform conditions for the adoption of measures necessary for its implementation in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (5),

HAVE ADOPTED THIS REGULATION:

Article 1

Principles and definitions

1.   An injurious pricing charge may be imposed on the builder of any injuriously priced vessel whose sale to a buyer other than a buyer of the country in which the vessel originates causes injury.

2.   A vessel is to be considered as being injuriously priced if the export price of the vessel sold is less than a comparable price for a like vessel, in the ordinary course of trade, when sold to a buyer of the exporting country.

3.   For the purposes of this Regulation, the following definitions apply:

| (a) | ‘vessel’ means any self-propelled sea-going vessel of 100 gross tonnes and above, used for transportation of goods or persons or for performance of a specialised service (for example, ice breakers and dredgers) and any tug of 365 kW and above; |
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(a)

‘vessel’ means any self-propelled sea-going vessel of 100 gross tonnes and above, used for transportation of goods or persons or for performance of a specialised service (for example, ice breakers and dredgers) and any tug of 365 kW and above;

| (b) | ‘like vessel’ means any vessel of the same type, purpose and approximate size as the vessel under consideration and possessing characteristics closely resembling those of the vessel under consideration; |
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(b)

‘like vessel’ means any vessel of the same type, purpose and approximate size as the vessel under consideration and possessing characteristics closely resembling those of the vessel under consideration;

| (c) | ‘same general category of vessel’ means any vessel of the same type and purpose, but of a significantly different size; |
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(c)

‘same general category of vessel’ means any vessel of the same type and purpose, but of a significantly different size;

| (d) | ‘sale’ covers the creation or transfer of an ownership interest in the vessel, except for an ownership interest created or acquired solely for the purpose of providing security for a normal commercial loan; |
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(d)

‘sale’ covers the creation or transfer of an ownership interest in the vessel, except for an ownership interest created or acquired solely for the purpose of providing security for a normal commercial loan;

| (e) | ‘ownership interest’ includes any contractual or proprietary interest which allows the beneficiary or beneficiaries of such interest to take advantage of the operation of the vessel in a manner substantially comparable to the way in which an owner may benefit from the operation of the vessel. In determining whether such substantial comparability exists, the following factors shall be considered, inter alia:






  (i) | the terms and circumstances of the transaction; |
| --- | --- | --- |

(e)

‘ownership interest’ includes any contractual or proprietary interest which allows the beneficiary or beneficiaries of such interest to take advantage of the operation of the vessel in a manner substantially comparable to the way in which an owner may benefit from the operation of the vessel. In determining whether such substantial comparability exists, the following factors shall be considered, inter alia:

(i)

the terms and circumstances of the transaction;

| (ii) | commercial practice within the industry; |
| --- | --- |

(ii)

commercial practice within the industry;

| (iii) | whether the vessel subject to the transaction is integrated into the operations of the beneficiary or beneficiaries; and |
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(iii)

whether the vessel subject to the transaction is integrated into the operations of the beneficiary or beneficiaries; and

| (iv) | whether in practice there is a likelihood that the beneficiary or beneficiaries of such interests will take advantage of, and the risk for, the operation of the vessel for a significant part of the life-time of the vessel; |
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(iv)

whether in practice there is a likelihood that the beneficiary or beneficiaries of such interests will take advantage of, and the risk for, the operation of the vessel for a significant part of the life-time of the vessel;

| (f) | ‘buyer’ means any person who, or any company which, acquires an ownership interest, including by way of lease or long-term bareboat charter, in conjunction with the original transfer from the shipbuilder, either directly or indirectly, including a person who, or company which, owns or controls a buyer, or gives instructions to the buyer. A person or company owns a buyer when it has more than a 50 % interest in the buyer. A person or company controls a buyer when the person or company is legally or operationally in a position to exercise restraint or direction over the buyer, which is presumed at a 25 % interest. If ownership of a buyer is shown, separate control of it is presumed not to exist unless established otherwise. There may be more than one buyer of any one vessel; |
| --- | --- |

(f)

‘buyer’ means any person who, or any company which, acquires an ownership interest, including by way of lease or long-term bareboat charter, in conjunction with the original transfer from the shipbuilder, either directly or indirectly, including a person who, or company which, owns or controls a buyer, or gives instructions to the buyer. A person or company owns a buyer when it has more than a 50 % interest in the buyer. A person or company controls a buyer when the person or company is legally or operationally in a position to exercise restraint or direction over the buyer, which is presumed at a 25 % interest. If ownership of a buyer is shown, separate control of it is presumed not to exist unless established otherwise. There may be more than one buyer of any one vessel;

| (g) | ‘company’ means any company or firm constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, including those which are non-profitmaking; |
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(g)

‘company’ means any company or firm constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, including those which are non-profitmaking;

| (h) | ‘Contracting Party’ means any third country that is party to the Shipbuilding Agreement. |
| --- | --- |

(h)

‘Contracting Party’ means any third country that is party to the Shipbuilding Agreement.

Article 2

Determination of injurious pricing

A.   Normal value

1.   The normal value shall normally be based on the price paid or payable, in the ordinary course of trade, for a like vessel by an independent buyer in the exporting country.

2.   Prices between parties which appear to be associated or to have a compensatory arrangement with each other may not be considered to be in the ordinary course of trade and may not be used to establish the normal value unless it is determined that they are unaffected by the relationship.

3.   When there are no sales of like vessels in the ordinary course of trade, or where, because of the particular market situation, such sales do not permit a proper comparison, the normal value of the like vessel shall be calculated on the basis of the export price of a like vessel, in the ordinary course of trade, to an appropriate third country, provided that this price is representative. If such sales to any appropriate third country do not exist or do not permit a proper comparison, the normal value of the like vessels shall be calculated on the basis of the cost of production in the country of origin plus a reasonable amount for selling, general and administrative costs and for profits.

4.   Sales of like vessels in the domestic market of the exporting country, or export sales to a third country, at prices below unit production costs (fixed and variable) plus selling, general and administrative costs, may be treated as not being in the ordinary course of trade by reason of price, and may be disregarded in determining the normal value, only if it is determined that such sales are at prices which do not provide for the recovery of all costs within a reasonable period, which should normally be 5 years.

5.   Costs shall normally be calculated on the basis of records kept by the shipbuilder under investigation, provided that such records are in accordance with the generally accepted accounting principles of the country concerned and that it is shown that the records reasonably reflect the costs associated with the production and sale of the vessel under consideration.

Consideration shall be given to evidence submitted on the proper allocation of costs, provided that it is shown that such allocations have been historically utilised. In the absence of a more appropriate method, preference shall be given to the allocation of costs on the basis of turnover. Unless already reflected in the cost allocations under this subparagraph, costs shall be adjusted appropriately for those non-recurring items of cost which benefit future and/or current production, or for circumstances in which costs are affected by start-up operations.

6.   The amounts for selling, for general and administrative costs and for profits shall be based on actual data pertaining to production and sales, in the ordinary course of trade, of like vessels by the shipbuilder under investigation. When such amounts cannot be determined on that basis, the amounts may be determined on the basis of:

| (a) | the weighted average of the actual amounts determined for other shipbuilders of the country of origin in respect of production and sales of like vessels in that country's domestic market; |
| --- | --- |

(a)

the weighted average of the actual amounts determined for other shipbuilders of the country of origin in respect of production and sales of like vessels in that country's domestic market;

| (b) | the actual amounts applicable to production and sales, in the ordinary course of trade, of the same general category of vessels for the shipbuilder in question in the domestic market of the country of origin; |
| --- | --- |

(b)

the actual amounts applicable to production and sales, in the ordinary course of trade, of the same general category of vessels for the shipbuilder in question in the domestic market of the country of origin;

| (c) | any other reasonable method, provided that the amount for profit so established shall not exceed the profit normally realised by other shipbuilders on sales of vessels of the same general category in the domestic market of the country of origin. |
| --- | --- |

(c)

any other reasonable method, provided that the amount for profit so established shall not exceed the profit normally realised by other shipbuilders on sales of vessels of the same general category in the domestic market of the country of origin.

Furthermore, the profit added in constructing value shall, in all instances, be based upon the average profit realised over a reasonable period of time of normally 6 months both before and after the sale under investigation and shall reflect a reasonable profit at the time of such sale. In making such calculation, any distortion which is demonstrated to result in a profit which is not a reasonable one at the time of the sale shall be eliminated.

7.   Given the long lead time between contract and delivery of vessels, a normal value shall not include actual costs which the shipbuilder demonstrates are due to force majeure and are significantly above the cost increase which the shipbuilder could reasonably have anticipated and taken into account when the material terms of sales were fixed.

8.   In the case of sales from non-market-economy countries and, in particular, those to which Regulation (EU) 2015/755 of the European Parliament and of the Council (6) applies, the normal value shall be determined on the basis of the price or constructed value in a market-economy third country, or the price from such a third country to other countries, including the Union, or, where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Union for the like vessel, duly adjusted if necessary to include a reasonable profit margin.

An appropriate market-economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time limits.

The parties to the investigation shall be informed, shortly after its initiation, of the market-economy third country envisaged and shall be given 10 days to comment.

B.   Export price

9.   The export price shall be the price actually paid or payable for the vessel under consideration.

10.   In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the shipbuilder and the buyer or a third party, the export price may be constructed on the basis of the price at which the vessel is first resold to an independent buyer, or, if the vessel is not resold to an independent buyer or is not resold in the condition in which it was originally sold, on any reasonable basis.

In those cases, adjustment for all costs, including duties and taxes, incurred between the original sale and resale, and for profits accruing, shall be made so as to establish a reliable export price.

The items for which adjustment shall be made shall include those normally borne by a buyer but paid by any party, either inside or outside the Union, which appears to be associated or to have a compensatory arrangement with the shipbuilder or buyer, including usual transport, insurance, handling, loading and ancillary costs, customs duties, and other taxes payable in the importing country by reason of the purchase of the vessel, and a reasonable margin for selling, general and administrative costs, and profit.

C.   Comparison

11.   A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time, which will normally mean sales that take place within 3 months before or after the sale under investigation, or in the absence of such sales, any appropriate period. Due allowance shall be made in each case, on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, contractual penalties, taxation, level of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability. Where, in cases referred to in paragraph 10, price comparability has been affected, the normal value shall be established at a level of trade equivalent to the level of trade of the constructed export price, or due allowance made, as warranted, under this paragraph. Any duplication when making adjustments shall be avoided, in particular in relation to discounts and contractual penalties. When the price comparison requires a conversion of currencies, such conversion shall be made using the rate of exchange on the date of sale, except that when a sale of foreign currency on forward markets is directly linked to the export sale involved the rate of exchange in the forward sale shall be used. For the purpose of this provision, the date of sale shall be the date on which the material terms of sale are established, normally the date of contract. However, if the material terms of sale are significantly changed on another date, the rate of exchange on the date of the change should be applied. In such a case, appropriate adjustments shall be made to take into account any unreasonable effect on the injurious pricing margin due solely to exchange rate fluctuations between the original date of sale and the date of the change.

D.   Injurious pricing margin

12.   Subject to the relevant provisions governing fair comparison, the existence of injurious pricing margins shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all sales, or by a comparison of individual normal values and individual export prices on a transaction-to-transaction basis. However, a normal value established on a weighted average basis may be compared to prices of all individual sales, if there is a significant difference in the pattern of export prices among different purchasers, regions or time periods, and should the methods specified in the first sentence of this paragraph not reflect the full degree of injurious pricing being practised.

13.   The injurious pricing margin shall be the amount by which the normal value exceeds the export price. Where injurious pricing margins vary, a weighted average injurious pricing margin may be established.

Article 3

Determination of injury

1.   Pursuant to this Regulation, the term ‘injury’ shall, unless otherwise specified, be taken to mean material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.

2.   A determination of injury shall be based on positive evidence and shall involve an objective examination of:

| (a) | the effect of the sale at less than normal value on prices in the Union market for like vessels; and |
| --- | --- |

(a)

the effect of the sale at less than normal value on prices in the Union market for like vessels; and

| (b) | the consequent impact of that sale on the Union industry. |
| --- | --- |

(b)

the consequent impact of that sale on the Union industry.

3.   With regard to the effect of the sale at less than normal value on prices, consideration shall be given to whether there has been significant price undercutting by the sale at less than normal value as compared with the price of like vessels of the Union industry, or whether the effect of such sale is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.

4.   Where sales of vessels from more than one country are simultaneously subject to injurious pricing investigations, the effects of such sales shall be cumulatively assessed only if it is determined that:

| (a) | the margin of injurious pricing established in relation to the purchases from each country is more than de minimis as defined in Article 7(3); and |
| --- | --- |

(a)

the margin of injurious pricing established in relation to the purchases from each country is more than de minimis as defined in Article 7(3); and

| (b) | a cumulative assessment of the effects of the sales is appropriate in the light of the conditions of competition between vessels sold by non-Union shipbuilders to the buyer and the conditions of competition between such vessels and the like Union vessels. |
| --- | --- |

(b)

a cumulative assessment of the effects of the sales is appropriate in the light of the conditions of competition between vessels sold by non-Union shipbuilders to the buyer and the conditions of competition between such vessels and the like Union vessels.

5.   The examination of the impact of the sale at less than normal value on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping, injurious pricing or subsidisation; the magnitude of the actual margin of injurious pricing; actual and potential decline in sales, profits, output, market share, productivity, return on investments and utilisation of capacity; factors affecting Union prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.

6.   It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the sale at less than normal value is causing, or has caused, injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.

7.   Known factors, other than the sale at less than normal value, which at the same time are injuring the Union industry shall also be examined to ensure that the injury caused by those other factors is not attributed to the sale at less than normal value under paragraph 6. Factors which may be considered in that respect shall include: the volume and prices of sales by shipbuilders of countries other than the exporting country not realised at less than normal value; contraction in demand or changes in the patterns of consumption; restrictive trade practices of, and competition between, third country and Union producers; developments in technology; and the export performance and productivity of the Union industry.

8.   The effect of the sale at less than normal value shall be assessed in relation to the production of the Union industry of like vessels when available data permit the separate identification of that production on the basis of criteria such as the production process, producers' sales and profits. If such separate identification of that production is not possible, the effects of the sale at less than normal value shall be assessed by examination of the production of the narrowest group or range of vessels, which includes the like vessel, for which the necessary information can be provided.

9.   A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the sale at less than normal value would cause injury must have been clearly foreseen and must be imminent.

In making a determination regarding the existence of a threat of material injury, consideration should be given to factors such as:

| (a) | whether there is sufficient freely disposable capacity on the part of the shipbuilder or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased sales at less than normal value, account being taken of the availability of other export markets to absorb any additional exports; |
| --- | --- |

(a)

whether there is sufficient freely disposable capacity on the part of the shipbuilder or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased sales at less than normal value, account being taken of the availability of other export markets to absorb any additional exports;

| (b) | whether vessels are being exported at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further purchases from other countries. |
| --- | --- |

(b)

whether vessels are being exported at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further purchases from other countries.

No one of the factors listed above by itself can necessarily give decisive guidance, but the totality of the factors considered shall be such as to lead to the conclusion that further sales at less than normal value are imminent and that, unless protective action is taken, material injury will occur.

Article 4

Definition of Union industry

1.   For the purposes of this Regulation, the term ‘Union industry’ shall be interpreted as referring to the Union producers as a whole capable of producing a like vessel with their present facilities or whose facilities can be adapted in a timely manner to produce a like vessel, or to those of them whose collective capability to produce a like vessel constitutes a major proportion, as defined in Article 5(6), of the total Union capability to produce a like vessel. However, when producers are related to the shipbuilder, exporters or buyers, or are themselves buyers of the allegedly injuriously priced vessel, the term ‘Union industry’ may be interpreted as referring to the rest of the producers.

2.   For the purpose of paragraph 1, producers shall be considered to be related to the shipbuilder, exporters or buyers only if:

| (a) | one of them directly or indirectly controls the other; |
| --- | --- |

(a)

one of them directly or indirectly controls the other;

| (b) | both of them are directly or indirectly controlled by a third person; or |
| --- | --- |

(b)

both of them are directly or indirectly controlled by a third person; or

| (c) | together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers. |
| --- | --- |

(c)

together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers.

For the purpose of this paragraph, one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter.

3.   The provisions of Article 3(8) shall be applicable to this Article.

Article 5

Initiation of proceedings

1.   Except as provided for in paragraph 8, an investigation to determine the existence, degree and effect of any alleged injurious pricing shall be initiated upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of the Union industry.

The complaint may be submitted to the Commission or to a Member State, which shall forward it to the Commission. The Commission shall send Member States a copy of any complaint it receives. The complaint shall be deemed to have been lodged on the first working day following its delivery to the Commission by registered mail or the issuing of an acknowledgement of receipt by the Commission.

Where, in the absence of any complaint, a Member State is in possession of sufficient evidence of injurious pricing and of resultant injury to the Union industry, it shall immediately communicate such evidence to the Commission.

2.   A complaint under paragraph 1 shall be filed no later than:

| (a) | 6 months from the time that the complainant knew, or should have known, of the sale of the vessel, when:






  (i) | the complainant was invited to tender a bid on the contract at issue through a broad multiple bid or any other bidding process; |
| --- | --- | --- |

(a)

6 months from the time that the complainant knew, or should have known, of the sale of the vessel, when:

(i)

the complainant was invited to tender a bid on the contract at issue through a broad multiple bid or any other bidding process;

| (ii) | the complainant actually did tender a bid; and |
| --- | --- |

(ii)

the complainant actually did tender a bid; and

| (iii) | the bid of the complainant substantially met bid specifications; |
| --- | --- |

(iii)

the bid of the complainant substantially met bid specifications;

| (b) | 9 months from the time that the complainant knew, or should have known, of the sale of the vessel in the absence of an invitation to tender, provided that a notice of intent to apply, including information reasonably available to the complainant to identify the transaction concerned, had been submitted no later than 6 months from that time to the Commission or a Member State. |
| --- | --- |

(b)

9 months from the time that the complainant knew, or should have known, of the sale of the vessel in the absence of an invitation to tender, provided that a notice of intent to apply, including information reasonably available to the complainant to identify the transaction concerned, had been submitted no later than 6 months from that time to the Commission or a Member State.

In no event shall a complaint be filed later than 6 months from the date of delivery of the vessel.

The complainant may be considered to have known of the sale of a vessel from the time of publication of the fact of the conclusion of the contract, along with very general information concerning the vessel, in the international trade press.

For the purpose of this Article, a broad multiple bid shall be interpreted to mean a bid in which the proposed buyer extends an invitation to bid to at least all the shipbuilders known to the buyer to be capable of building the vessel in question.

3.   A complaint under paragraph 1 shall include evidence:

| (a) | of injurious pricing; |
| --- | --- |

(a)

of injurious pricing;

| (b) | of injury; |
| --- | --- |

(b)

of injury;

| (c) | of a causal link between the injuriously priced sale and the alleged injury; and |
| --- | --- |

(c)

of a causal link between the injuriously priced sale and the alleged injury; and

| (d) | (i) | that, if the vessel was sold through a broad multiple bid, the complainant was invited to tender a bid on the contract at issue, it actually did so, and the bid of the complainant substantially met bid specifications (namely, delivery date and technical requirements); or |
| --- | --- | --- |

(d)

(i)

that, if the vessel was sold through a broad multiple bid, the complainant was invited to tender a bid on the contract at issue, it actually did so, and the bid of the complainant substantially met bid specifications (namely, delivery date and technical requirements); or

| (ii) | that, if the vessel was sold through any other bidding process and the complainant was invited to tender a bid on the contract at issue, it actually did so, and the bid of the complainant substantially met bid specifications; or |
| --- | --- |

(ii)

that, if the vessel was sold through any other bidding process and the complainant was invited to tender a bid on the contract at issue, it actually did so, and the bid of the complainant substantially met bid specifications; or

| (iii) | that, in the absence of an invitation to tender a bid other than under a broad multiple bid, the complainant was capable of building the vessel concerned and, if the complainant knew, or should have known, of the proposed purchase, it made demonstrable efforts to conclude a sale with the buyer consistent with the bid specifications in question. The complainant may be considered to have known of the proposed purchase if it is demonstrated that the majority of the relevant industry has made efforts with that buyer to conclude a sale of the vessel in question, or if it is demonstrated that general information on the proposed purchase was available from brokers, financiers, classification societies, charterers, trade associations, or other entities normally involved in shipbuilding transactions with whom the complainant had regular contacts or dealings. |
| --- | --- |

(iii)

that, in the absence of an invitation to tender a bid other than under a broad multiple bid, the complainant was capable of building the vessel concerned and, if the complainant knew, or should have known, of the proposed purchase, it made demonstrable efforts to conclude a sale with the buyer consistent with the bid specifications in question. The complainant may be considered to have known of the proposed purchase if it is demonstrated that the majority of the relevant industry has made efforts with that buyer to conclude a sale of the vessel in question, or if it is demonstrated that general information on the proposed purchase was available from brokers, financiers, classification societies, charterers, trade associations, or other entities normally involved in shipbuilding transactions with whom the complainant had regular contacts or dealings.

4.   The complaint shall contain such information as is reasonably available to the complainant on the following:

| (a) | the identity of the complainant and a description of the volume and value of the Union production of the like vessel by the complainant. Where a written complaint is made on behalf of the Union industry, the complaint shall identify the industry on behalf of which the complaint is made by a list of all known Union producers capable of building the like vessel and, to the extent possible, a description of the volume and value of Union production of the like vessel accounted for by such producers; |
| --- | --- |

(a)

the identity of the complainant and a description of the volume and value of the Union production of the like vessel by the complainant. Where a written complaint is made on behalf of the Union industry, the complaint shall identify the industry on behalf of which the complaint is made by a list of all known Union producers capable of building the like vessel and, to the extent possible, a description of the volume and value of Union production of the like vessel accounted for by such producers;

| (b) | a complete description of the allegedly injuriously priced vessel, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and the identity of the buyer of the vessel in question; |
| --- | --- |

(b)

a complete description of the allegedly injuriously priced vessel, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and the identity of the buyer of the vessel in question;

| (c) | the prices at which such vessels are sold in the domestic markets of the country or countries of origin or export (or, where appropriate, the prices at which such vessels are sold from the country or countries of origin or export to a third country or countries or the constructed value of the vessel) and the export prices or, where appropriate, the prices at which such vessels are first resold to an independent buyer; |
| --- | --- |

(c)

the prices at which such vessels are sold in the domestic markets of the country or countries of origin or export (or, where appropriate, the prices at which such vessels are sold from the country or countries of origin or export to a third country or countries or the constructed value of the vessel) and the export prices or, where appropriate, the prices at which such vessels are first resold to an independent buyer;

| (d) | the effect of the injuriously priced sale on prices of the like vessel on the Union market and the consequent impact of the sale on the Union industry, as demonstrated by relevant factors and indices having a bearing on the state of the Union industry, such as those listed in Article 3(3) and (5). |
| --- | --- |

(d)

the effect of the injuriously priced sale on prices of the like vessel on the Union market and the consequent impact of the sale on the Union industry, as demonstrated by relevant factors and indices having a bearing on the state of the Union industry, such as those listed in Article 3(3) and (5).

5.   The Commission shall, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation.

6.   An investigation shall not be initiated pursuant to paragraph 1 unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by Union producers capable of building the like vessel, that the complaint has been made by, or on behalf of, the Union industry. The complaint shall be considered to have been made by, or on behalf of, the Union industry if it is supported by those Union producers whose collective capacity to produce the like vessel constitutes more than 50 % of the total capacity of that portion of the Union industry expressing either support for, or opposition to, the complaint. However, no investigation shall be initiated where Union producers expressly supporting the complaint account for less than 25 % of total capacity of the Union producers capable of producing the like vessel.

7.   The authorities shall avoid, unless a decision has been taken to initiate an investigation, any publicising of the complaint seeking the initiation of an investigation. However, before proceeding to initiate an investigation, the government of the exporting country concerned shall be notified.

8.   If, in special circumstances, the Commission decides to initiate an investigation without having received a written complaint by, or on behalf of, the Union industry for the initiation of such investigation, this shall be done on the basis of sufficient evidence of injurious pricing, injury, a causal link, and that a member of the allegedly injured Union industry met the criteria referred to in paragraph 3 (d), to justify such initiation.

Where appropriate, an investigation may also be initiated upon a written complaint by the authorities of a Contracting Party. Such a complaint shall be supported by sufficient evidence to show that a vessel is being, or has been, injuriously priced and that the alleged sale to a Union buyer at less than normal value is causing, or has caused, injury to the domestic industry of the Contracting Party concerned.

9.   The evidence of both injurious pricing and injury shall be considered simultaneously in the decision on whether or not to initiate an investigation. A complaint shall be rejected where there is insufficient evidence of either injurious pricing or of injury to justify proceeding with the case.

10.   The complaint may be withdrawn prior to initiation, in which case it shall be considered not to have been lodged.

11.   Where it is apparent that there is sufficient evidence to justify initiating proceedings, the Commission shall do so within 45 days of the date on which the complaint was lodged, or, in the case of initiation pursuant to paragraph 8, no later than 6 months from the time the sale of the vessel was known or should have been known, and shall publish a notice in the Official Journal of the European Union. Where insufficient evidence has been presented, the complainant shall be so informed within 45 days of the date on which the complaint is lodged with the Commission. The Commission shall provide information to the Member States once it has determined that there is a need to initiate such proceedings.

12.   The notice of initiation of the proceedings shall announce the initiation of an investigation, indicate the name and country of the shipbuilder and the buyer or buyers and a description of the vessel 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 periods within which interested parties may make themselves known, present their views in writing and submit information if such views and information are to be taken into account during the investigation. It shall also state the period within which interested parties may apply to be heard by the Commission in accordance with Article 6(5).

13.   The Commission shall advise the exporter, the buyer or buyers of the vessel and representative associations of producers, exporters or buyers of such vessels known to it to be concerned, as well as representatives of the country the vessel of which is subject to such investigation and the complainants, of the initiation of the proceedings and, with due regard to the protection of confidential information, provide the full text of the written complaint received pursuant to paragraph 1 to the exporter, and to the authorities of the exporting country, and make it available upon request to other interested parties involved.

Article 6

The investigation

1.   Following the initiation of the proceedings, the Commission, acting in cooperation with the Member States and, where appropriate, with the authorities of third countries, shall commence an investigation at Union level. Such an investigation shall cover both injurious pricing and injury, and they shall be investigated simultaneously.

2.   Parties receiving questionnaires used in an injurious pricing investigation shall be given at least 30 days to reply. The time-limit for exporters shall be counted from the date of receipt of the questionnaire, which for this purpose shall be deemed to have been received 1 week from the day on which it was sent to the exporter or transmitted to the appropriate diplomatic representative of the exporting country. An extension to the 30-day period may be granted, due account being taken of the time limits of the investigation, provided that the party shows due cause for such an extension in terms of its particular circumstances.

3.   The Commission may request the authorities of third countries, where appropriate, as well as the Member States, to supply information, and Member States shall take whatever steps are necessary in order to give effect to such requests.

They shall send to the Commission the information requested together with the results of all inspections, checks or investigations carried out.

Where that information is of general interest or where its transmission has been requested by a Member State, the Commission shall forward it to the Member States, provided that it is not confidential, in which case a non-confidential summary shall be forwarded.

4.   The Commission may request the authorities of third countries, where appropriate, as well as the Member States, to carry out all necessary checks and inspections, particularly amongst Union producers, and to carry out investigations in third countries, provided that the firms concerned give their consent and that the government of the country in question has been officially notified and raises no objection.

Member States shall take whatever steps are necessary in order to give effect to such requests from the Commission.

Officials of the Commission shall be authorised, if the Commission or a Member State so requests, to assist the officials of Member States in carrying out their duties. Likewise, officials of the Commission may assist the officials of the authorities of third countries in carrying out their duties, upon agreement between the Commission and such authorities.

5.   The interested parties which have made themselves known in accordance with Article 5(12) shall be heard 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 an interested party likely to be affected by the result of the proceedings and that there are particular reasons why they should be heard.

6.   Opportunities shall, on request, be provided for the shipbuilder, the buyer or buyers, representatives of the government of the exporting country, the complainants, and other interested parties, which have made themselves known in accordance with Article 5(12), to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered.

Provision of such opportunities shall take account of the need to preserve confidentiality and of the convenience to the parties.

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.

Oral information provided under this paragraph shall be taken into account insofar as it is subsequently confirmed in writing.

7.   The complainants, the shipbuilder, the buyer or buyers and other interested parties, which have made themselves known in accordance with Article 5(12), as well as the representatives of the exporting country, may, upon written request, inspect all information, made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the Union or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 13, and is used in the investigation.

Such parties may respond to such information and their comments shall be taken into consideration, wherever they are sufficiently substantiated in the response.

8.   Except in the circumstances provided for in Article 12, the information which is supplied by interested parties and upon which findings are based shall be examined for accuracy as far as possible.

9.   For proceedings involving price to price comparison, where a like vessel has been delivered, the investigation shall be concluded no later than 1 year from the date of initiation.

For proceedings in which the like vessel is under construction, the investigation shall be concluded no later than 1 year from the date of delivery of that like vessel.

Investigations involving constructed value shall be concluded within 1 year of their initiation or within 1 year of delivery of the vessel, whichever is the later.

Those time limits shall be suspended to the extent that Article 16(2) is applied.

Article 7

Termination without measures, imposition and collection of injurious pricing charges

1.   Where the complaint is withdrawn, the proceedings may be terminated.

2.   Where measures are unnecessary, the investigation or proceedings shall be terminated. The Commission shall terminate the investigation in accordance with the examination procedure referred to in Article 10(2).

3.   There shall be immediate termination of the proceedings where it is determined that the margin of injurious pricing is less than 2 %, expressed as a percentage of the export price.

4.   Where the facts as finally established show that there is injurious pricing and injury caused thereby, an injurious pricing charge shall be imposed on the shipbuilder by the Commission acting in accordance with the examination procedure referred to in Article 10(2). The amount of the injurious pricing charge shall be equal to the margin of injurious pricing established. The Commission shall, after having informed the Member States, take the necessary measures for the implementation of its decision, in particular the collection of the injurious pricing charge.

5.   The shipbuilder shall pay the injurious pricing charge within 180 days of notification to it of the imposition of the charge, which for this purpose shall be deemed to have been received 1 week from the day on which it was sent to the shipbuilder. The Commission may give the shipbuilder a reasonably extended period of time to pay where the shipbuilder demonstrates that payment within 180 days would render it insolvent or would be incompatible with a judicially supervised reorganisation, in which case interest shall accrue on any unpaid portion of the charge, at a rate equal to the secondary market yield on medium-term euro bonds in the Luxembourg stock exchange plus 50 basis points.

Article 8

Alternative remedies

The investigation may be terminated without the imposition of an injurious pricing charge if the shipbuilder definitively and unconditionally voids the sale of the injuriously priced vessel or complies with an alternative, equivalent remedy accepted by the Commission.

A sale shall be considered to have been voided only where all contractual relationships between the parties concerned by the sale in question have been terminated, all consideration paid in connection with the sale is reimbursed and all rights in the vessel concerned or parts thereof are returned to the shipbuilder.

Article 9

Countermeasures — denial of loading and unloading rights

1.   If the shipbuilder concerned does not pay the injurious pricing charge imposed under Article 7, countermeasures under the form of denial of loading and unloading rights shall be imposed by the Commission on the vessels built by the shipbuilder in question.

The Commission shall provide information to the Member States once the grounds for countermeasures referred to in the first subparagraph arise.

2.   The decision imposing the countermeasures shall enter into force 30 days after its publication in the Official Journal of the European Union and shall be repealed on full payment of the injurious pricing charge by the shipbuilder. The countermeasure shall cover all vessels contracted for during a period of 4 years from the date of entry into force of the decision. Each vessel shall be subject to the countermeasure for a period of 4 years after its delivery. Such periods may be reduced only following and in accordance with the outcome of an international dispute settlement procedure concerning the countermeasures imposed.

The vessels subject to the denial of loading and unloading rights shall be specified by decision to be adopted by the Commission and published in the Official Journal of the European Union.

3.   The Member States' customs authorities shall not grant permission to load or unload to vessels subject to the denial of loading and unloading rights.

Article 10

Committee procedure

1.   The Commission shall be assisted by the Committee established by Regulation (EU) 2016/1036. That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.   Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

Article 11

Verification visits

1.   The Commission shall, where it considers it appropriate, carry out visits to examine the records of exporters, shipbuilders, traders, agents, producers, trade associations and organisations, to verify information provided on injurious pricing and injury. In the absence of a proper and timely reply, the Commission may choose not to carry out a verification visit.

2.   The Commission may carry out investigations in third countries as required, provided that it obtains the agreement of the firms concerned, that it notifies the representatives of the government of the country in question and that the latter does not object to the investigation. As soon as the agreement of the firms concerned has been obtained, the Commission shall notify the authorities of the exporting country of the names and addresses of the firms to be visited and the dates agreed.

3.   The firms concerned shall be advised of the nature of the information to be verified during verification visits and of any further information which needs to be provided during such visits, though this does not preclude requests, made during the verification, for further details to be provided in the light of information obtained.

4.   In investigations carried out under paragraphs 1, 2 and 3, the Commission shall be assisted by officials of those Member States which so request.

Article 12

Non-cooperation

1.   In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided for in this Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available.

Where it is found that any interested party has supplied false or misleading information, that information shall be disregarded and use may be made of facts available.

Interested parties shall be made aware of the consequences of non-cooperation.

2.   Failure to give a computerised response shall not be deemed to constitute non-cooperation, provided that the interested party shows that presenting the response as requested would result in an unreasonable extra burden or unreasonable additional cost.

3.   Where the information submitted by an interested party is not ideal in all respects, it shall nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability.

4.   If evidence or information is not accepted, the supplying party shall be informed forthwith of the reasons therefor and shall be granted an opportunity to provide further explanations within the time limit specified. If the explanations are considered unsatisfactory, the reasons for rejection of such evidence or information shall be disclosed and given in published findings.

5.   If determinations, including those regarding normal value, are based on the provisions of paragraph 1, including the information supplied in the complaint, it shall, where practicable and with due regard to the time limits of the investigation, be checked by reference to information from other independent sources which may be available, such as published price lists, official statistics of sales and customs returns, or information obtained from other interested parties during the investigation.

6.   If an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result of the investigation may be less favourable to the party than if it had cooperated.

Article 13

Confidentiality

1.   Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom the person supplying the information has acquired the information) or which is provided on a confidential basis by parties to an investigation shall, if good cause is shown, be treated as such by the authorities.

2.   Interested parties providing confidential information shall be required to provide non-confidential summaries thereof. Those summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not capable of being summarised. In such exceptional circumstances, a statement of the reasons why summarisation is not possible shall be provided.

3.   If it is considered that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information available or to authorise its disclosure in generalised or summary form, such information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct. Requests for confidentiality shall not be arbitrarily rejected.

4.   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, or disclosure of the evidence relied on by the Union authorities insofar as is necessary to explain those reasons in court proceedings. Such disclosure shall take into account the legitimate interest of the parties concerned that their business secrets not be divulged.

5.   The Commission and the Member States, including the officials of either, shall not reveal any information received pursuant to this Regulation for which confidential treatment has been requested by its supplier, without specific permission from that supplier. Exchanges of information between the Commission and Member States, or any internal documents prepared by the authorities of the Union or the Member States, shall not be divulged except as specifically provided for in this Regulation.

6.   Information received pursuant to this Regulation shall be used only for the purpose for which it was requested.

Article 14

Disclosure

1.   The complainants, the shipbuilder, the exporter, the buyer or the buyers of the vessel and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which it is intended to recommend the imposition of an injurious pricing charge, or the termination of an investigation or proceedings without the imposition of a charge.

2.   Requests for final disclosure, as defined in paragraph 1, shall be addressed to the Commission in writing and be received within time limits set by the Commission.

3.   Final disclosure shall be given in writing. It shall be made, due regard being had to the need to protect confidential information, as soon as possible and, normally, not less than 1 month before a definitive decision. Where the Commission is not in a position to disclose certain facts or considerations at that time, they shall be disclosed as soon as possible thereafter.

Disclosure shall not prejudice any subsequent decision which may be taken by the Commission, but where such a decision is based on any different facts and considerations they shall be disclosed as soon as possible.

4.   Representations made after disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter.

Article 15

Report

The Commission shall include information on the implementation of this Regulation in its annual report on the application and implementation of trade defence measures presented to the European Parliament and to the Council pursuant to Article 23 of Regulation (EU) 2016/1036.

Article 16

Final provisions

1.   This Regulation shall not preclude the application of:

| (a) | any special rules laid down in agreements concluded between the Union and third countries; |
| --- | --- |

(a)

any special rules laid down in agreements concluded between the Union and third countries;

| (b) | special measures, provided that such action does not run counter to obligations pursuant to the Shipbuilding Agreement. |
| --- | --- |

(b)

special measures, provided that such action does not run counter to obligations pursuant to the Shipbuilding Agreement.

2.   An investigation pursuant to this Regulation shall not be carried out and measures shall not be imposed or maintained where such measures would be contrary to the Union's obligations emanating from the Shipbuilding Agreement or any other relevant international agreement.

This Regulation shall not prevent the Union from fulfilling its obligations under the provisions of the Shipbuilding Agreement concerning dispute settlement.

Article 17

Repeal

Regulation (EC) No 385/96 is repealed.

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 enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Official Journal of the European Union

It shall apply from the date of entry into force of the Shipbuilding Agreement (7).

7

It shall not apply to vessels contracted for before the date of entry into force of the Shipbuilding Agreement, except for vessels contracted for after 21 December 1994 and for delivery more than 5 years from the date of the contract. Such vessels shall be subject to this Regulation, unless the shipbuilder demonstrates that the extended delivery date was for normal commercial reasons and not to avoid the application of this Regulation.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Strasbourg, 8 June 2016.

For the European Parliament

The President

M. SCHULZ

For the Council

The President

A.G. KOENDERS

---

(1)  Position of the European Parliament of 7 July 2015 (not yet published in the Official Journal) and decision of the Council of 15 January 2016.

1

(2)  Council Regulation (EC) No 385/96 of 29 January 1996 on protection against injurious pricing of vessels (OJ L 56, 6.3.1996, p. 21).

2

(3)  See Annex I.

3

(4)  Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (see page 21 of this Official Journal).

4

(5)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

5

(6)  Regulation (EU) 2015/755 of the European Parliament and of the Council of 29 April 2015 on common rules for imports from certain third countries (OJ L 123, 19.5.2015, p. 33).

6

(7)  The date of entry into force of the Shipbuilding Agreement will be published in the Official Journal of the European Union, L series.

7

Official Journal of the European Union

---

ANNEX I

REPEALED REGULATION WITH THE AMENDMENT THERETO

| Council Regulation (EC) No 385/96
  (OJ L 56, 6.3.1996, p. 21) | |
| --- | --- |
| Regulation (EU) No 37/2014 of the European Parliament and of the Council
  (OJ L 18, 21.1.2014, p. 1) | Only point 5 of the Annex |

Council Regulation (EC) No 385/96

(OJ L 56, 6.3.1996, p. 21)

Regulation (EU) No 37/2014 of the European Parliament and of the Council

(OJ L 18, 21.1.2014, p. 1)

Only point 5 of the Annex

---

ANNEX II

CORRELATION TABLE

| Regulation (EC) No 385/96 | This Regulation |
| --- | --- |
| Articles 1 to 4 | Articles 1 to 4 |
| Article 5(1) | Article 5(1) |
| Article 5(2), first subparagraph, introductory wording | Article 5(2), first subparagraph, introductory wording |
| Article 5(2), first subparagraph, point (a), introductory wording | Article 5(2), first subparagraph, point (a), introductory wording |
| Article 5(2), first subparagraph, point (a), first indent | Article 5(2), first subparagraph, point (a)(i) |
| Article 5(2), first subparagraph, point (a), second indent | Article 5(2), first subparagraph, point (a)(ii) |
| Article 5(2), first subparagraph, point (a), third indent | Article 5(2), first subparagraph, point (a)(iii) |
| Article 5(2), second, third and fourth subparagraph | Article 5(2), second, third and fourth subparagraph |
| Article 5(3) to (10) | Article 5(3) to (10) |
| Article 5(11), first subparagraph | Article 5(11), first and second sentence |
| Article 5(11), second subparagraph | Article 5(11), third sentence |
| Article 5(12), first sentence | Article 5(12), first subparagraph |
| Article 5(12), second and third sentence | Article 5(12), second subparagraph |
| Article 6(1) and (2) | Article 6(1) and (2) |
| Article 6(3), first sentence | Article 6(3), first subparagraph |
| Article 6(3), second sentence | Article 6(3), second subparagraph |
| Article 6(3), third sentence | Article 6(3), third subparagraph |
| Article 6(4), first sentence | Article 6(4), first subparagraph |
| Article 6(4), second sentence | Article 6(4), second subparagraph |
| Article 6(4), third and fourth sentence | Article 6(4), third subparagraph |
| Article 6(5) | Article 6(5) |
| Article 6(6), first sentence | Article 6(6), first subparagraph |
| Article 6(6), second sentence | Article 6(6), second subparagraph |
| Article 6(6), third sentence | Article 6(6), third subparagraph |
| Article 6(6), fourth sentence | Article 6(6), fourth subparagraph |
| Article 6(7), first sentence | Article 6(7), first subparagraph |
| Article 6(7), second sentence | Article 6(7), second subparagraph |
| Article 6(8) and (9) | Article 6(8) and (9) |
| Articles 7 to 11 | Articles 7 to 11 |
| Article 12(1), first sentence | Article 12(1), first subparagraph |
| Article 12(1), second sentence | Article 12(1), second subparagraph |
| Article 12(1), third sentence | Article 12(1), third subparagraph |
| Article 12(2) to (6) | Article 12(2) to (6) |
| Article 13 | Article 13 |
| Article 14(1) and (2) | Article 14(1) and (2) |
| Article 14(3), first, second and third sentence | Article 14(3), first subparagraph |
| Article 14(3), fourth sentence | Article 14(3), second subparagraph |
| Article 14(4) | Article 14(4) |
| Article 14a | Article 15 |
| Article 15 | Article 16 |
| — | Article 17 |
| Article 16 | Article 18 |
| — | Annex I |
| — | Annex II |

Regulation (EC) No 385/96

This Regulation

Articles 1 to 4

Articles 1 to 4

Article 5(1)

Article 5(1)

Article 5(2), first subparagraph, introductory wording

Article 5(2), first subparagraph, introductory wording

Article 5(2), first subparagraph, point (a), introductory wording

Article 5(2), first subparagraph, point (a), introductory wording

Article 5(2), first subparagraph, point (a), first indent

Article 5(2), first subparagraph, point (a)(i)

Article 5(2), first subparagraph, point (a), second indent

Article 5(2), first subparagraph, point (a)(ii)

Article 5(2), first subparagraph, point (a), third indent

Article 5(2), first subparagraph, point (a)(iii)

Article 5(2), second, third and fourth subparagraph

Article 5(2), second, third and fourth subparagraph

Article 5(3) to (10)

Article 5(3) to (10)

Article 5(11), first subparagraph

Article 5(11), first and second sentence

Article 5(11), second subparagraph

Article 5(11), third sentence

Article 5(12), first sentence

Article 5(12), first subparagraph

Article 5(12), second and third sentence

Article 5(12), second subparagraph

Article 6(1) and (2)

Article 6(1) and (2)

Article 6(3), first sentence

Article 6(3), first subparagraph

Article 6(3), second sentence

Article 6(3), second subparagraph

Article 6(3), third sentence

Article 6(3), third subparagraph

Article 6(4), first sentence

Article 6(4), first subparagraph

Article 6(4), second sentence

Article 6(4), second subparagraph

Article 6(4), third and fourth sentence

Article 6(4), third subparagraph

Article 6(5)

Article 6(5)

Article 6(6), first sentence

Article 6(6), first subparagraph

Article 6(6), second sentence

Article 6(6), second subparagraph

Article 6(6), third sentence

Article 6(6), third subparagraph

Article 6(6), fourth sentence

Article 6(6), fourth subparagraph

Article 6(7), first sentence

Article 6(7), first subparagraph

Article 6(7), second sentence

Article 6(7), second subparagraph

Article 6(8) and (9)

Article 6(8) and (9)

Articles 7 to 11

Articles 7 to 11

Article 12(1), first sentence

Article 12(1), first subparagraph

Article 12(1), second sentence

Article 12(1), second subparagraph

Article 12(1), third sentence

Article 12(1), third subparagraph

Article 12(2) to (6)

Article 12(2) to (6)

Article 13

Article 13

Article 14(1) and (2)

Article 14(1) and (2)

Article 14(3), first, second and third sentence

Article 14(3), first subparagraph

Article 14(3), fourth sentence

Article 14(3), second subparagraph

Article 14(4)

Article 14(4)

Article 14a

Article 15

Article 15

Article 16

—

Article 17

Article 16

Article 18

—

Annex I

—

Annex II

---

| 30.6.2016 | EN | Official Journal of the European Union | L 176/21 |
| --- | --- | --- | --- |

30.6.2016

EN

Official Journal of the European Union

L 176/21

---

REGULATION (EU) 2016/1036 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 8 June 2016

on protection against dumped imports from countries not members of the European Union

(codification)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure (1),

Whereas:

| (1) | Council Regulation (EC) No 1225/2009 (2) has been substantially amended several times (3). In the interests of clarity and rationality, that Regulation should be codified. |
| --- | --- |

(1)

Council Regulation (EC) No 1225/2009 (2) has been substantially amended several times (3). In the interests of clarity and rationality, that Regulation should be codified.

| (2) | The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the 1994 Anti-Dumping Agreement’) contains detailed rules, relating in particular to the calculation of dumping, procedures for initiating and pursuing an investigation, including the establishment and treatment of the facts, the imposition of provisional measures, the imposition and collection of anti-dumping duties, the duration and review of anti-dumping measures and the public disclosure of information relating to anti-dumping investigations. |
| --- | --- |

(2)

The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the 1994 Anti-Dumping Agreement’) contains detailed rules, relating in particular to the calculation of dumping, procedures for initiating and pursuing an investigation, including the establishment and treatment of the facts, the imposition of provisional measures, the imposition and collection of anti-dumping duties, the duration and review of anti-dumping measures and the public disclosure of information relating to anti-dumping investigations.

| (3) | In order to ensure a proper and transparent application of the rules of the 1994 Anti-Dumping Agreement, the language of that agreement should be reflected in Union legislation to the best extent possible. |
| --- | --- |

(3)

In order to ensure a proper and transparent application of the rules of the 1994 Anti-Dumping Agreement, the language of that agreement should be reflected in Union legislation to the best extent possible.

| (4) | In applying the rules of the 1994 Anti-Dumping Agreement, it is essential, in order to maintain the balance of rights and obligations which the General Agreement on Tariffs and Trade (‘GATT’) established, that the Union take account of the interpretation of those rules by the Union's major trading partners. |
| --- | --- |

(4)

In applying the rules of the 1994 Anti-Dumping Agreement, it is essential, in order to maintain the balance of rights and obligations which the General Agreement on Tariffs and Trade (‘GATT’) established, that the Union take account of the interpretation of those rules by the Union's major trading partners.

| (5) | It is desirable to set out clear and detailed rules on the calculation of the normal value. In particular, such value should in all cases be based on representative sales in the ordinary course of trade in the exporting country. It is expedient to give guidance as to when parties may be considered as being associated for the purpose of determining dumping. It is expedient to define the circumstances in which domestic sales may be considered to be made at a loss and may be disregarded, and in which recourse may be had to remaining sales, or to constructed normal value, or to sales to a third country. It is also appropriate to provide for a proper allocation of costs, even in start-up situations, and for guidance as to the definition of start-up and the extent and method of allocation. It is also necessary, when constructing the normal value, to indicate the methodology to be applied in determining the amounts for selling, general and administrative costs and the profit margin that should be included in such value. |
| --- | --- |

(5)

It is desirable to set out clear and detailed rules on the calculation of the normal value. In particular, such value should in all cases be based on representative sales in the ordinary course of trade in the exporting country. It is expedient to give guidance as to when parties may be considered as being associated for the purpose of determining dumping. It is expedient to define the circumstances in which domestic sales may be considered to be made at a loss and may be disregarded, and in which recourse may be had to remaining sales, or to constructed normal value, or to sales to a third country. It is also appropriate to provide for a proper allocation of costs, even in start-up situations, and for guidance as to the definition of start-up and the extent and method of allocation. It is also necessary, when constructing the normal value, to indicate the methodology to be applied in determining the amounts for selling, general and administrative costs and the profit margin that should be included in such value.

| (6) | When determining the normal value for non-market-economy countries, it appears prudent to set out rules for choosing the appropriate market-economy third country to be used for such purpose and, where it is not possible to find a suitable third country, to provide that the normal value may be established on any other reasonable basis. |
| --- | --- |

(6)

When determining the normal value for non-market-economy countries, it appears prudent to set out rules for choosing the appropriate market-economy third country to be used for such purpose and, where it is not possible to find a suitable third country, to provide that the normal value may be established on any other reasonable basis.

| (7) | It is expedient to define the export price and to enumerate the adjustments which should be made in those cases where a reconstruction of that price from the first open-market price is deemed necessary. |
| --- | --- |

(7)

It is expedient to define the export price and to enumerate the adjustments which should be made in those cases where a reconstruction of that price from the first open-market price is deemed necessary.

| (8) | For the purpose of ensuring a fair comparison between the export price and the normal value, it is advisable to list the factors which may affect prices and price comparability and to set out specific rules as to when and how the adjustments should be made, including the fact that any duplication of adjustments should be avoided. It is also necessary to provide that comparison may be made using average prices although individual export prices may be compared to an average normal value where the former vary by customer, region or time period. |
| --- | --- |

(8)

For the purpose of ensuring a fair comparison between the export price and the normal value, it is advisable to list the factors which may affect prices and price comparability and to set out specific rules as to when and how the adjustments should be made, including the fact that any duplication of adjustments should be avoided. It is also necessary to provide that comparison may be made using average prices although individual export prices may be compared to an average normal value where the former vary by customer, region or time period.

| (9) | It is desirable to set out clear and detailed guidance as to the factors which may be relevant for the determination of whether the dumped imports have caused material injury or are threatening to cause injury. In demonstrating that the volume and price levels of the imports concerned are responsible for injury sustained by the Union industry, attention should be given to the effect of other factors and in particular prevailing market conditions in the Union. |
| --- | --- |

(9)

It is desirable to set out clear and detailed guidance as to the factors which may be relevant for the determination of whether the dumped imports have caused material injury or are threatening to cause injury. In demonstrating that the volume and price levels of the imports concerned are responsible for injury sustained by the Union industry, attention should be given to the effect of other factors and in particular prevailing market conditions in the Union.

| (10) | It is advisable to define the term ‘Union industry’ and to provide that parties related to exporters may be excluded from such an industry, and to define the term ‘related’. It is also necessary to provide for anti-dumping action to be taken on behalf of producers in a region of the Union and to set out guidelines on the definition of such a region. |
| --- | --- |

(10)

It is advisable to define the term ‘Union industry’ and to provide that parties related to exporters may be excluded from such an industry, and to define the term ‘related’. It is also necessary to provide for anti-dumping action to be taken on behalf of producers in a region of the Union and to set out guidelines on the definition of such a region.

| (11) | It is necessary to specify who may lodge an anti-dumping complaint, including the extent to which it should be supported by the Union industry, and the information on dumping, injury and causation which such a complaint should contain. It is also expedient to specify the procedures for the rejection of complaints or the initiation of proceedings. |
| --- | --- |

(11)

It is necessary to specify who may lodge an anti-dumping complaint, including the extent to which it should be supported by the Union industry, and the information on dumping, injury and causation which such a complaint should contain. It is also expedient to specify the procedures for the rejection of complaints or the initiation of proceedings.

| (12) | It is necessary to specify the manner in which interested parties should be given notice of the information which the authorities require. Interested parties should have ample opportunity to present all relevant evidence and to defend their interests. 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. 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. There should also be cooperation between the Member States and the Commission in the collection of information. |
| --- | --- |

(12)

It is necessary to specify the manner in which interested parties should be given notice of the information which the authorities require. Interested parties should have ample opportunity to present all relevant evidence and to defend their interests. 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. 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. There should also be cooperation between the Member States and the Commission in the collection of information.

| (13) | It is necessary to set out the conditions under which provisional duties may be imposed, including conditions whereby provisional duties may be imposed no earlier than 60 days from initiation and no later than nine months thereafter. For administrative reasons, it is also necessary to provide that such duties may in all cases be imposed by the Commission, either directly for a nine-month period or in two stages of six and three months. |
| --- | --- |

(13)

It is necessary to set out the conditions under which provisional duties may be imposed, including conditions whereby provisional duties may be imposed no earlier than 60 days from initiation and no later than nine months thereafter. For administrative reasons, it is also necessary to provide that such duties may in all cases be imposed by the Commission, either directly for a nine-month period or in two stages of six and three months.

| (14) | It is necessary to set out procedures for accepting undertakings which eliminate dumping and injury instead of imposing provisional or definitive duties. It is also appropriate to specify the consequences of a 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. In accepting undertakings, care should be taken that the proposed undertakings, and their enforcement, do not lead to anti-competitive behaviour. |
| --- | --- |

(14)

It is necessary to set out procedures for accepting undertakings which eliminate dumping and injury instead of imposing provisional or definitive duties. It is also appropriate to specify the consequences of a 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. In accepting undertakings, care should be taken that the proposed undertakings, and their enforcement, do not lead to anti-competitive behaviour.

| (15) | 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 more than 15 months, of the initiation of the investigation. |
| --- | --- |

(15)

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 more than 15 months, of the initiation of the investigation.

| (16) | Investigations or proceedings should be terminated where the dumping is de minimis or the injury is negligible, and it is appropriate to define those situations. Where measures are to be imposed, it is necessary to provide for the termination of investigations and to specify that measures should be less than the margin of dumping if such lesser amount would remove the injury, and also to specify the method of calculating the level of measures in cases of sampling. |
| --- | --- |

(16)

Investigations or proceedings should be terminated where the dumping is de minimis or the injury is negligible, and it is appropriate to define those situations. Where measures are to be imposed, it is necessary to provide for the termination of investigations and to specify that measures should be less than the margin of dumping if such lesser amount would remove the injury, and also to specify the method of calculating the level of measures in cases of sampling.

| (17) | It is necessary to provide for retroactive collection of provisional duties if that is deemed appropriate and to define the circumstances which may trigger the retroactive application of duties to avoid the undermining of the definitive measures to be applied. It is also necessary to provide that duties may be applied retroactively in cases of breach or withdrawal of undertakings. |
| --- | --- |

(17)

It is necessary to provide for retroactive collection of provisional duties if that is deemed appropriate and to define the circumstances which may trigger the retroactive application of duties to avoid the undermining of the definitive measures to be applied. It is also necessary to provide that duties may be applied retroactively in cases of breach or withdrawal of undertakings.

| (18) | It is necessary to provide that measures are to lapse after five years unless a review indicates that they should be maintained. 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 anti-dumping duties are warranted. It is also appropriate to provide that, in any recalculation of dumping which necessitates a reconstruction of export prices, duties are not to be treated as a cost incurred between importation and resale where those duties are being reflected in the prices of the products subject to measures in the Union. |
| --- | --- |

(18)

It is necessary to provide that measures are to lapse after five years unless a review indicates that they should be maintained. 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 anti-dumping duties are warranted. It is also appropriate to provide that, in any recalculation of dumping which necessitates a reconstruction of export prices, duties are not to be treated as a cost incurred between importation and resale where those duties are being reflected in the prices of the products subject to measures in the Union.

| (19) | It is necessary to provide specifically for the reassessment of export prices and dumping margins where the duty is being absorbed by the exporter through a form of compensatory arrangement and the measures are not being reflected in the prices of the products subject to measures in the Union. |
| --- | --- |

(19)

It is necessary to provide specifically for the reassessment of export prices and dumping margins where the duty is being absorbed by the exporter through a form of compensatory arrangement and the measures are not being reflected in the prices of the products subject to measures in the Union.

| (20) | The 1994 Anti-Dumping Agreement does not contain provisions regarding the circumvention of anti-dumping measures, though a separate GATT Ministerial Decision recognised circumvention as a problem and referred it to the GATT Anti-dumping Committee for resolution. Given the failure of the multilateral negotiations so far and pending the outcome of the referral to the World Trade Organisation (‘WTO’) Anti-Dumping Committee, Union legislation should contain provisions to deal with practices, including mere assembly of goods in the Union or a third country, which have as their main aim the circumvention of anti-dumping measures. |
| --- | --- |

(20)

The 1994 Anti-Dumping Agreement does not contain provisions regarding the circumvention of anti-dumping measures, though a separate GATT Ministerial Decision recognised circumvention as a problem and referred it to the GATT Anti-dumping Committee for resolution. Given the failure of the multilateral negotiations so far and pending the outcome of the referral to the World Trade Organisation (‘WTO’) Anti-Dumping Committee, Union legislation should contain provisions to deal with practices, including mere assembly of goods in the Union or a third country, which have as their main aim the circumvention of anti-dumping measures.

| (21) | It is also desirable to clarify which practices constitute circumvention of the measures in place. Circumvention practices may take place either inside or outside the Union. It is consequently necessary to provide that exemptions from the extended duties which may be granted to importers may also be granted to exporters when duties are being applied to address circumvention taking place outside the Union. |
| --- | --- |

(21)

It is also desirable to clarify which practices constitute circumvention of the measures in place. Circumvention practices may take place either inside or outside the Union. It is consequently necessary to provide that exemptions from the extended duties which may be granted to importers may also be granted to exporters when duties are being applied to address circumvention taking place outside the Union.

| (22) | It is expedient to permit the suspension of anti-dumping measures where there is a temporary change in market conditions which makes the continued imposition of such measures temporarily inappropriate. |
| --- | --- |

(22)

It is expedient to permit the suspension of anti-dumping measures where there is a temporary change in market conditions which makes the continued imposition of such measures temporarily inappropriate.

| (23) | 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. |
| --- | --- |

(23)

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.

| (24) | In order to ensure the proper enforcement of measures, it is necessary that Member States monitor, and report to the Commission on, the import trade of products subject to investigation or subject to measures, as well as the amount of duties collected under this Regulation. |
| --- | --- |

(24)

In order to ensure the proper enforcement of measures, it is necessary that Member States monitor, and report to the Commission on, the import trade of products subject to investigation or subject to measures, as well as the amount of duties collected under this Regulation.

| (25) | It is expedient to provide for verification visits to check information submitted on dumping and injury, such visits being, however, conditional on proper replies to questionnaires being received. |
| --- | --- |

(25)

It is expedient to provide for verification visits to check information submitted on dumping and injury, such visits being, however, conditional on proper replies to questionnaires being received.

| (26) | 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. |
| --- | --- |

(26)

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.

| (27) | 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. |
| --- | --- |

(27)

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.

| (28) | Provision should be made for the treatment of confidential information so that business secrets are not divulged. |
| --- | --- |

(28)

Provision should be made for the treatment of confidential information so that business secrets are not divulged.

| (29) | It is essential that provision be made for proper disclosure of the 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 Union, within a time limit which permits parties to defend their interests. |
| --- | --- |

(29)

It is essential that provision be made for proper disclosure of the 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 Union, within a time limit which permits parties to defend their interests.

| (30) | It is prudent to provide for an administrative system under which arguments can be presented as to whether measures are in the Union's interest, including consumers' interest, and to specify the time limits within which such information has to be presented as well as the disclosure rights of the parties concerned. |
| --- | --- |

(30)

It is prudent to provide for an administrative system under which arguments can be presented as to whether measures are in the Union's interest, including consumers' interest, and to specify the time limits within which such information has to be presented as well as the disclosure rights of the parties concerned.

| (31) | The implementation of this Regulation requires uniform conditions for the adoption of provisional and definitive duties, and for the termination of an investigation without measures. Those measures should be adopted by the Commission in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (4). |
| --- | --- |

(31)

The implementation of this Regulation requires uniform conditions for the adoption of provisional and definitive duties, and for the termination of an investigation without measures. Those measures should be adopted by the Commission in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (4).

| (32) | The advisory procedure should be used for the adoption of provisional measures given the effects of such measures and their sequential logic in relation to the adoption of definitive measures. It should also be used for the acceptance of undertakings, initiation and non-initiation of expiry reviews, suspension of measures, extension of the suspension of measures and the reinstatement of measures given the effect of such measures as compared to definitive measures. Where a delay in the imposition of measures would cause injury which would be difficult to repair, it is necessary to allow the Commission to adopt immediately applicable provisional measures, |
| --- | --- |

(32)

The advisory procedure should be used for the adoption of provisional measures given the effects of such measures and their sequential logic in relation to the adoption of definitive measures. It should also be used for the acceptance of undertakings, initiation and non-initiation of expiry reviews, suspension of measures, extension of the suspension of measures and the reinstatement of measures given the effect of such measures as compared to definitive measures. Where a delay in the imposition of measures would cause injury which would be difficult to repair, it is necessary to allow the Commission to adopt immediately applicable provisional measures,

HAVE ADOPTED THIS REGULATION:

Article 1

Principles

1.   An anti-dumping duty may be imposed on any dumped product whose release for free circulation in the Union causes injury.

2.   A product is to be considered as being dumped if its export price to the Union is less than a comparable price for a like product, in the ordinary course of trade, as established for the exporting country.

3.   The exporting country shall normally be the country of origin. However, it may be an intermediate country, except where, for example, the products are merely transhipped through that country, or the products concerned are not produced in that country, or there is no comparable price for them in that country.

4.   For the purposes of this Regulation, ‘like product’ means a product which is identical, that is to say, alike in all respects, to the product under consideration, or, in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.

Article 2

Determination of dumping

A.   NORMAL VALUE

1.   The normal value shall normally be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country.

However, where the exporter in the exporting country does not produce or does not sell the like product, the normal value may be established on the basis of prices of other sellers or producers.

Prices between parties which appear to be associated or to have a compensatory arrangement with each other may not be considered to be in the ordinary course of trade and may not be used to establish the normal value unless it is determined that they are unaffected by the relationship.

In order to determine whether two parties are associated, account may be taken of the definition of related parties set out in Article 127 of Commission Implementing Regulation (EU) 2015/2447 (5).

2.   Sales of the like product intended for domestic consumption shall normally be used to determine the normal value if such sales volume constitutes 5 % or more of the sales volume of the product under consideration to the Union. However, a lower volume of sales may be used when, for example, the prices charged are considered representative for the market concerned.

3.   When there are no or insufficient sales of the like product in the ordinary course of trade, or where, because of the particular market situation, such sales do not permit a proper comparison, the normal value of the like product shall be calculated on the basis of the cost of production in the country of origin plus a reasonable amount for selling, general and administrative costs and for profits, or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative.

A particular market situation for the product concerned within the meaning of the first subparagraph may be deemed to exist, inter alia, when prices are artificially low, when there is significant barter trade, or when there are non-commercial processing arrangements.

4.   Sales of the like product in the domestic market of the exporting country, or export sales to a third country, at prices below unit production costs (fixed and variable) plus selling, general and administrative costs may be treated as not being in the ordinary course of trade by reason of price, and may be disregarded in determining the normal value, only if it is determined that such sales are made within an extended period in substantial quantities, and are at prices which do not provide for the recovery of all costs within a reasonable period of time.

If prices which are below costs at the time of sale are above weighted average costs for the period of investigation, such prices shall be considered to provide for recovery of costs within a reasonable period of time.

The extended period of time shall normally be one year but shall in no case be less than six months, and sales below unit cost shall be considered to be made in substantial quantities within such a period when it is established that the weighted average selling price is below the weighted average unit cost, or that the volume of sales below unit cost is not less than 20 % of sales being used to determine normal value.

5.   Costs shall normally be calculated on the basis of records kept by the party under investigation, provided that such records are in accordance with the generally accepted accounting principles of the country concerned and that it is shown that the records reasonably reflect the costs associated with the production and sale of the product under consideration.

If costs associated with the production and sale of the product under investigation are not reasonably reflected in the records of the party concerned, they shall be adjusted or established on the basis of the costs of other producers or exporters in the same country or, where such information is not available or cannot be used, on any other reasonable basis, including information from other representative markets.

Consideration shall be given to evidence submitted on the proper allocation of costs, provided that it is shown that such allocations have been historically utilised. In the absence of a more appropriate method, preference shall be given to the allocation of costs on the basis of turnover. Unless already reflected in the cost allocations under this subparagraph, costs shall be adjusted appropriately for those non-recurring items of cost which benefit future and/or current production.

Where the costs for part of the period for cost recovery are affected by the use of new production facilities requiring substantial additional investment and by low-capacity utilisation rates, which are the result of start-up operations which take place within or during part of the investigation period, the average costs for the start-up phase shall be those applicable, under the abovementioned allocation rules, at the end of such a phase, and shall be included at that level, for the period concerned, in the weighted average costs referred to in the second subparagraph of paragraph 4. The length of a start-up phase shall be determined in relation to the circumstances of the producer or exporter concerned, but shall not exceed an appropriate initial portion of the period for cost recovery. For this adjustment to costs applicable during the investigation period, information relating to a start-up phase which extends beyond that period shall be taken into account where it is submitted prior to verification visits and within three months of the initiation of the investigation.

6.   The amounts for selling, for general and administrative costs and for profits shall be based on actual data pertaining to production and sales, in the ordinary course of trade, of the like product by the exporter or producer under investigation. When such amounts cannot be determined on that basis, the amounts may be determined on the basis of:

| (a) | the weighted average of the actual amounts determined for other exporters or producers subject to investigation in respect of production and sales of the like product in the domestic market of the country of origin; |
| --- | --- |

(a)

the weighted average of the actual amounts determined for other exporters or producers subject to investigation in respect of production and sales of the like product in the domestic market of the country of origin;

| (b) | the actual amounts applicable to production and sales, in the ordinary course of trade, of the same general category of products for the exporter or producer in question in the domestic market of the country of origin; |
| --- | --- |

(b)

the actual amounts applicable to production and sales, in the ordinary course of trade, of the same general category of products for the exporter or producer in question in the domestic market of the country of origin;

| (c) | any other reasonable method, provided that the amount for profit so established shall not exceed the profit normally realised by other exporters or producers on sales of products of the same general category in the domestic market of the country of origin. |
| --- | --- |

(c)

any other reasonable method, provided that the amount for profit so established shall not exceed the profit normally realised by other exporters or producers on sales of products of the same general category in the domestic market of the country of origin.

| 7. | (a) | In the case of imports from non-market-economy countries (6), the normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Union, or, where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Union for the like product, duly adjusted if necessary to include a reasonable profit margin.
  An appropriate market-economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time limits. Where appropriate, a market-economy third country which is subject to the same investigation shall be used.
  The parties to the investigation shall be informed shortly after its initiation of the market-economy third country envisaged and shall be given 10 days to comment. |
| --- | --- | --- |
| (b) | In anti-dumping investigations concerning imports from the People's Republic of China, Vietnam and Kazakhstan and any non-market-economy country which is a member of the WTO at the date of the initiation of the investigation, the normal value shall be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in point (c), that market-economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When that is not the case, the rules set out under point (a) shall apply. |
| (c) | A claim under point (b) must be made in writing and contain sufficient evidence that the producer operates under market-economy conditions, that is if:






  — | decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in that regard, and costs of major inputs substantially reflect market values, |

7.

(a)

In the case of imports from non-market-economy countries (6), the normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Union, or, where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Union for the like product, duly adjusted if necessary to include a reasonable profit margin.

An appropriate market-economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time limits. Where appropriate, a market-economy third country which is subject to the same investigation shall be used.

The parties to the investigation shall be informed shortly after its initiation of the market-economy third country envisaged and shall be given 10 days to comment.

(b)

In anti-dumping investigations concerning imports from the People's Republic of China, Vietnam and Kazakhstan and any non-market-economy country which is a member of the WTO at the date of the initiation of the investigation, the normal value shall be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in point (c), that market-economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When that is not the case, the rules set out under point (a) shall apply.

(c)

A claim under point (b) must be made in writing and contain sufficient evidence that the producer operates under market-economy conditions, that is if:

—

decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in that regard, and costs of major inputs substantially reflect market values,

| — | firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes, |
| --- | --- |

—

firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes,

| — | the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market-economy system, in particular in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts, |
| --- | --- |

—

the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market-economy system, in particular in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts,

| — | the firms concerned are subject to bankruptcy and property laws which guarantee legal certainty and stability for the operation of firms, and |
| --- | --- |

—

the firms concerned are subject to bankruptcy and property laws which guarantee legal certainty and stability for the operation of firms, and

| — | exchange rate conversions are carried out at the market rate. |
| --- | --- |

—

exchange rate conversions are carried out at the market rate.

A determination whether the producer meets the criteria referred to under this point shall normally be made within seven months of, but in any event not later than eight months after, the initiation of the investigation, after the Union industry has been given an opportunity to comment. That determination shall remain in force throughout the investigation. The Commission shall provide information to the Member States concerning its analysis of claims made pursuant to point (b) normally within 28 weeks of the initiation of the investigation.

(d)

When the Commission has limited its investigation in accordance with Article 17, a determination pursuant to points (b) and (c) of this paragraph shall be limited to the parties included in the investigation and any producer that receives individual treatment pursuant to Article 17(3).

B.   EXPORT PRICE

8.   The export price shall be the price actually paid or payable for the product when sold for export from the exporting country to the Union.

9.   In cases where there is no export price or where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer or are not resold in the condition in which they were imported, on any reasonable basis.

In those cases, adjustment for all costs, including duties and taxes, incurred between the importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the Union frontier level.

The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either inside or outside the Union, which appears to be associated or to have a compensatory arrangement with the importer or exporter, including usual transport, insurance, handling, loading and ancillary costs, customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods, and a reasonable margin for selling, general and administrative costs and profit.

C.   COMPARISON

10.   A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis, due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. When the specified conditions are met, the factors for which adjustment can be made are listed as follows:

| (a) | Physical characteristics
  An adjustment shall be made for differences in the physical characteristics of the product concerned. The amount of the adjustment shall correspond to a reasonable estimate of the market value of the difference. |
| --- | --- |

(a)

Physical characteristics

An adjustment shall be made for differences in the physical characteristics of the product concerned. The amount of the adjustment shall correspond to a reasonable estimate of the market value of the difference.

| (b) | Import charges and indirect taxes
  An adjustment shall be made to the normal value for an amount corresponding to any import charges or indirect taxes borne by the like product and by materials physically incorporated therein, when intended for consumption in the exporting country and not collected or refunded in respect of the product exported to the Union. |
| --- | --- |

(b)

Import charges and indirect taxes

An adjustment shall be made to the normal value for an amount corresponding to any import charges or indirect taxes borne by the like product and by materials physically incorporated therein, when intended for consumption in the exporting country and not collected or refunded in respect of the product exported to the Union.

| (c) | Discounts, rebates and quantities
  An adjustment shall be made for differences in discounts and rebates, including those given for differences in quantities, if those are properly quantified and are directly linked to the sales under consideration. An adjustment may also be made for deferred discounts and rebates if the claim is based on consistent practice in prior periods, including compliance with the conditions required to qualify for the discount or rebates. |
| --- | --- |

(c)

Discounts, rebates and quantities

An adjustment shall be made for differences in discounts and rebates, including those given for differences in quantities, if those are properly quantified and are directly linked to the sales under consideration. An adjustment may also be made for deferred discounts and rebates if the claim is based on consistent practice in prior periods, including compliance with the conditions required to qualify for the discount or rebates.

| (d) | Level of trade






  (i) | An adjustment for differences in levels of trade, including any differences which may arise in OEM (original equipment manufacturer) sales, shall be made where, in relation to the distribution chain in both markets, it is shown that the export price, including a constructed export price, is at a different level of trade from the normal value and the difference has affected price comparability, which is demonstrated by consistent and distinct differences in functions and prices of the seller for the different levels of trade in the domestic market of the exporting country. The amount of the adjustment shall be based on the market value of the difference. |
| --- | --- | --- |

(d)

Level of trade

(i)

An adjustment for differences in levels of trade, including any differences which may arise in OEM (original equipment manufacturer) sales, shall be made where, in relation to the distribution chain in both markets, it is shown that the export price, including a constructed export price, is at a different level of trade from the normal value and the difference has affected price comparability, which is demonstrated by consistent and distinct differences in functions and prices of the seller for the different levels of trade in the domestic market of the exporting country. The amount of the adjustment shall be based on the market value of the difference.

| (ii) | However, in circumstances not envisaged under point (i), when an existing difference in level of trade cannot be quantified because of the absence of the relevant levels on the domestic market of the exporting countries, or where certain functions are shown clearly to relate to levels of trade other than the one which is to be used in the comparison, a special adjustment may be granted. |
| --- | --- |

(ii)

However, in circumstances not envisaged under point (i), when an existing difference in level of trade cannot be quantified because of the absence of the relevant levels on the domestic market of the exporting countries, or where certain functions are shown clearly to relate to levels of trade other than the one which is to be used in the comparison, a special adjustment may be granted.

| (e) | Transport, insurance, handling, loading and ancillary costs
  An adjustment shall be made for differences in the directly related costs incurred for conveying the product concerned from the premises of the exporter to an independent buyer, where such costs are included in the prices charged. Those costs shall include transport, insurance, handling, loading and ancillary costs. |
| --- | --- |

(e)

Transport, insurance, handling, loading and ancillary costs

An adjustment shall be made for differences in the directly related costs incurred for conveying the product concerned from the premises of the exporter to an independent buyer, where such costs are included in the prices charged. Those costs shall include transport, insurance, handling, loading and ancillary costs.

| (f) | Packing
  An adjustment shall be made for differences in the directly related packing costs for the product concerned. |
| --- | --- |

(f)

Packing

An adjustment shall be made for differences in the directly related packing costs for the product concerned.

| (g) | Credit
  An adjustment shall be made for differences in the cost of any credit granted for the sales under consideration, provided that it is a factor taken into account in the determination of the prices charged. |
| --- | --- |

(g)

Credit

An adjustment shall be made for differences in the cost of any credit granted for the sales under consideration, provided that it is a factor taken into account in the determination of the prices charged.

| (h) | After-sales costs
  An adjustment shall be made for differences in the direct costs of providing warranties, guarantees, technical assistance and services, as provided for by law and/or in the sales contract. |
| --- | --- |

(h)

After-sales costs

An adjustment shall be made for differences in the direct costs of providing warranties, guarantees, technical assistance and services, as provided for by law and/or in the sales contract.

| (i) | Commissions
  An adjustment shall be made for differences in commissions paid in respect of the sales under consideration.
  The term ‘commissions’ shall be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis. |
| --- | --- |

(i)

Commissions

An adjustment shall be made for differences in commissions paid in respect of the sales under consideration.

The term ‘commissions’ shall be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.

| (j) | Currency conversions
  When the price comparison requires a conversion of currencies, such conversion shall be made using the rate of exchange on the date of sale, except that, when a sale of foreign currency on forward markets is directly linked to the export sale involved, the rate of exchange in the forward sale shall be used. Normally, the date of sale shall be the date of invoice but the date of contract, purchase order or order confirmation may be used if those more appropriately establish the material terms of sale. Fluctuations in exchange rates shall be ignored and exporters shall be granted 60 days to reflect a sustained movement in exchange rates during the investigation period. |
| --- | --- |

(j)

Currency conversions

When the price comparison requires a conversion of currencies, such conversion shall be made using the rate of exchange on the date of sale, except that, when a sale of foreign currency on forward markets is directly linked to the export sale involved, the rate of exchange in the forward sale shall be used. Normally, the date of sale shall be the date of invoice but the date of contract, purchase order or order confirmation may be used if those more appropriately establish the material terms of sale. Fluctuations in exchange rates shall be ignored and exporters shall be granted 60 days to reflect a sustained movement in exchange rates during the investigation period.

| (k) | Other factors
  An adjustment may also be made for differences in other factors not provided for under points (a) to (j), if it is demonstrated that they affect price comparability as required under this paragraph, in particular if customers consistently pay different prices on the domestic market because of the difference in such factors. |
| --- | --- |

(k)

Other factors

An adjustment may also be made for differences in other factors not provided for under points (a) to (j), if it is demonstrated that they affect price comparability as required under this paragraph, in particular if customers consistently pay different prices on the domestic market because of the difference in such factors.

D.   DUMPING MARGIN

11.   Subject to the relevant provisions governing fair comparison, the existence of margins of dumping during the investigation period shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all export transactions to the Union, or by a comparison of individual normal values and individual export prices to the Union on a transaction-to-transaction basis. However, a normal value established on a weighted average basis may be compared to prices of all individual export transactions to the Union, if there is a significant difference in the pattern of export prices among different purchasers, regions or time periods, and if the methods specified in the first sentence of this paragraph would not reflect the full degree of dumping being practised. This paragraph shall not preclude the use of sampling in accordance with Article 17.

12.   The dumping margin shall be the amount by which the normal value exceeds the export price. Where dumping margins vary, a weighted average dumping margin may be established.

Article 3

Determination of injury

1.   Pursuant to this Regulation, the term ‘injury’ shall, unless otherwise specified, be taken to mean material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.

2.   A determination of injury shall be based on positive evidence and shall involve an objective examination of:

| (a) | the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and |
| --- | --- |

(a)

the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and

| (b) | the consequent impact of those imports on the Union industry. |
| --- | --- |

(b)

the consequent impact of those imports on the Union industry.

3.   With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Union. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.

4.   Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the effects of such imports shall be cumulatively assessed only if it is determined that:

| (a) | the margin of dumping established in relation to the imports from each country is more than de minimis as defined in Article 9(3) and the volume of imports from each country is not negligible; and |
| --- | --- |

(a)

the margin of dumping established in relation to the imports from each country is more than de minimis as defined in Article 9(3) and the volume of imports from each country is not negligible; and

| (b) | a cumulative assessment of the effects of the imports is appropriate in the light of the conditions of competition between imported products and the conditions of competition between the imported products and the like Union product. |
| --- | --- |

(b)

a cumulative assessment of the effects of the imports is appropriate in the light of the conditions of competition between imported products and the conditions of competition between the imported products and the like Union product.

5.   The examination of the impact of the dumped imports on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping or subsidisation; the magnitude of the actual margin of dumping; actual and potential decline in sales, profits, output, market share, productivity, return on investments and utilisation of capacity; factors affecting Union prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.

6.   It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.

7.   Known factors, other than the dumped imports, which at the same time are injuring the Union industry shall also be examined to ensure that the injury caused by those other factors is not attributed to the dumped imports under paragraph 6. Factors which may be considered in that respect shall include: the volume and prices of imports not sold at dumping prices; contraction in demand or changes in the patterns of consumption; restrictive trade practices of, and competition between, third country and Union producers; developments in technology and the export performance; and productivity of the Union industry.

8.   The effect of the dumped imports shall be assessed in relation to the production of the Union industry of the like product when available data permit the separate identification of that production on the basis of criteria such as the production process, producers' sales and profits. If such separate identification of that production is not possible, the effects of the dumped imports shall be assessed by examination of the production of the narrowest group or range of products, which includes the like product, for which the necessary information can be provided.

9.   A determination of a threat of material injury shall be based on facts and not merely on an allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must have been clearly foreseen and must be imminent.

In making a determination regarding the existence of a threat of material injury, consideration should be given to factors such as:

| (a) | a significant rate of increase of dumped imports into the Union market indicating the likelihood of substantially increased imports; |
| --- | --- |

(a)

a significant rate of increase of dumped imports into the Union market indicating the likelihood of substantially increased imports;

| (b) | whether there is sufficient freely disposable capacity on the part of the exporter or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased dumped exports to the Union, account being taken of the availability of other export markets to absorb any additional exports; |
| --- | --- |

(b)

whether there is sufficient freely disposable capacity on the part of the exporter or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased dumped exports to the Union, account being taken of the availability of other export markets to absorb any additional exports;

| (c) | whether imports are entering at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further imports; |
| --- | --- |

(c)

whether imports are entering at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further imports;

| (d) | inventories of the product being investigated. |
| --- | --- |

(d)

inventories of the product being investigated.

No one of the factors listed above by itself can necessarily give decisive guidance, but the totality of the factors considered shall be such as to lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, material injury will occur.

Article 4

Definition of Union industry

1.   For the purposes of this Regulation, the term ‘Union industry’ shall be interpreted as referring to the Union producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4), of the total Union production of those products, except that:

| (a) | when producers are related to the exporters or importers, or are themselves importers of the allegedly dumped product, the term ‘Union industry’ may be interpreted as referring to the rest of the producers; |
| --- | --- |

(a)

when producers are related to the exporters or importers, or are themselves importers of the allegedly dumped product, the term ‘Union industry’ may be interpreted as referring to the rest of the producers;

| (b) | in exceptional circumstances, the territory of the Union may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if:






  (i) | the producers within such a market sell all or almost all of their production of the product in question in that market; and |
| --- | --- | --- |

(b)

in exceptional circumstances, the territory of the Union may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if:

(i)

the producers within such a market sell all or almost all of their production of the product in question in that market; and

| (ii) | the demand in that market is not to any substantial degree met by producers of the product in question located elsewhere in the Union. |
| --- | --- |

(ii)

the demand in that market is not to any substantial degree met by producers of the product in question located elsewhere in the Union.

In such circumstances, injury may be found to exist even where a major portion of the total Union industry is not injured, provided that there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such a market.

2.   For the purpose of paragraph 1, producers shall be considered to be related to exporters or importers only if:

| (a) | one of them directly or indirectly controls the other; |
| --- | --- |

(a)

one of them directly or indirectly controls the other;

| (b) | both of them are directly or indirectly controlled by a third person; or |
| --- | --- |

(b)

both of them are directly or indirectly controlled by a third person; or

| (c) | together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers. |
| --- | --- |

(c)

together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers.

For the purpose of this paragraph, one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter.

3.   Where the Union industry has been interpreted as referring to the producers in a certain region, the exporters shall be given an opportunity to offer undertakings pursuant to Article 8 in respect of the region concerned. In such cases, when evaluating the Union interest of the measures, special account shall be taken of the interest of the region. If an adequate undertaking is not offered promptly or the situations set out in Article 8(9) and (10) apply, a provisional or definitive duty may be imposed in respect of the Union as a whole. In such cases the duties may, if practicable, be limited to specific producers or exporters.

4.   The provisions of Article 3(8) shall be applicable to this Article.

Article 5

Initiation of proceedings

1.   Except as provided for in paragraph 6, an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of the Union industry.

The complaint may be submitted to the Commission or to a Member State, which shall forward it to the Commission. The Commission shall send Member States a copy of any complaint it receives. The complaint shall be deemed to have been lodged on the first working day following its delivery to the Commission by registered mail or the issuing of an acknowledgement of receipt by the Commission.

Where, in the absence of any complaint, a Member State is in possession of sufficient evidence of dumping and of resultant injury to the Union industry, it shall immediately communicate such evidence to the Commission.

2.   A complaint under paragraph 1 shall include evidence of dumping, injury and a causal link between the allegedly dumped imports and the alleged injury. The complaint shall contain such information as is reasonably available to the complainant on the following:

| (a) | the identity of the complainant and a description of the volume and value of the Union production of the like product by the complainant. Where a written complaint is made on behalf of the Union industry, the complaint shall identify the industry on behalf of which the complaint is made by a list of all known Union producers of the like product (or associations of Union producers of the like product) and, to the extent possible, a description of the volume and value of Union production of the like product accounted for by such producers; |
| --- | --- |

(a)

the identity of the complainant and a description of the volume and value of the Union production of the like product by the complainant. Where a written complaint is made on behalf of the Union industry, the complaint shall identify the industry on behalf of which the complaint is made by a list of all known Union producers of the like product (or associations of Union producers of the like product) and, to the extent possible, a description of the volume and value of Union production of the like product accounted for by such producers;

| (b) | a complete description of the allegedly dumped product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question; |
| --- | --- |

(b)

a complete description of the allegedly dumped product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question;

| (c) | the prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export (or, where appropriate, the prices at which the product is sold from the country or countries of origin or export to a third country or countries or on the constructed value of the product) and the export prices or, where appropriate, the prices at which the product is first resold to an independent buyer in the Union; |
| --- | --- |

(c)

the prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export (or, where appropriate, the prices at which the product is sold from the country or countries of origin or export to a third country or countries or on the constructed value of the product) and the export prices or, where appropriate, the prices at which the product is first resold to an independent buyer in the Union;

| (d) | the changes in the volume of the allegedly dumped imports, the effect of those imports on prices of the like product on the Union market and the consequent impact of the imports on the Union industry, as demonstrated by relevant factors and indices having a bearing on the state of the Union industry, such as those listed in Article 3(3) and (5). |
| --- | --- |

(d)

the changes in the volume of the allegedly dumped imports, the effect of those imports on prices of the like product on the Union market and the consequent impact of the imports on the Union industry, as demonstrated by relevant factors and indices having a bearing on the state of the Union industry, such as those listed in Article 3(3) and (5).

3.   The Commission shall, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation.

4.   An investigation shall not be initiated pursuant to paragraph 1 unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by Union producers of the like product, that the complaint has been made by, or on behalf of, the Union industry. The complaint shall be considered to have been made by, or on behalf of, the Union industry if it is supported by those Union producers whose collective output constitutes more than 50 % of the total production of the like product produced by that portion of the Union industry expressing either support for or opposition to the complaint. However, no investigation shall be initiated where Union producers expressly supporting the complaint account for less than 25 % of total production of the like product produced by the Union industry.

5.   The authorities shall avoid, unless a decision has been taken to initiate an investigation, any publicising of the complaint seeking the initiation of an investigation. However, after receipt of a properly documented complaint and before proceeding to initiate an investigation, the government of the exporting country concerned shall be notified.

6.   If, in special circumstances, the Commission decides to initiate an investigation without having received a written complaint by, or on behalf of, the Union industry for the initiation of such an investigation, this shall be done on the basis of sufficient evidence of dumping, injury and a causal link, as described in paragraph 2, to justify such initiation. The Commission shall provide information to the Member States once it has determined the need to initiate such investigation.

7.   The evidence of both dumping and injury shall be considered simultaneously in the decision on whether or not to initiate an investigation. A complaint shall be rejected where there is insufficient evidence of either dumping or of injury to justify proceeding with the case. Proceedings shall not be initiated against countries whose imports represent a market share of below 1 %, unless such countries collectively account for 3 % or more of Union consumption.

8.   The complaint may be withdrawn prior to initiation, in which case it shall be considered not to have been lodged.

9.   Where it is apparent that there is sufficient evidence to justify initiating proceedings, the Commission shall do so within 45 days of the date on which the complaint was lodged and shall publish a notice in the Official Journal of the European Union. Where insufficient evidence has been presented, the complainant shall be so informed within 45 days of the date on which the complaint is lodged with the Commission. The Commission shall provide information to the Member States concerning its analysis of the complaint normally within 21 days of the date on which the complaint is lodged with the Commission.

10.   The notice of initiation of proceedings shall announce the initiation of an investigation, indicate the product and 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 periods within which interested parties may make themselves known, present their views in writing and submit information if such views and information are to be taken into account during the investigation. It shall also state the period within which interested parties may apply to be heard by the Commission in accordance with Article 6(5).

11.   The Commission shall advise the exporters, importers and representative associations of importers or exporters known to it to be concerned, as well as representatives of the exporting country and the complainants, of the initiation of the proceedings and, with due regard to the protection of confidential information, provide the full text of the written complaint received pursuant to paragraph 1 to the known exporters and to the authorities of the exporting country, and make it available upon request to other interested parties involved. Where the number of exporters involved is particularly high, the full text of the written complaint may instead be provided only to the authorities of the exporting country or to the relevant trade association.

12.   An anti-dumping investigation shall not hinder the procedures of customs clearance.

Article 6

The investigation

1.   Following the initiation of proceedings, the Commission, acting in cooperation with the Member States, shall commence an investigation at Union level. Such an investigation shall cover both dumping and injury, and they shall be investigated simultaneously.

For the purpose of a representative finding, an investigation period shall be selected which in the case of dumping shall, normally, cover a period of no less than six months immediately prior to the initiation of proceedings.

Information relating to a period subsequent to the investigation period shall, normally, not be taken into account.

2.   Parties receiving questionnaires used in an anti-dumping investigation shall be given at least 30 days to reply. The time limit for exporters shall be counted from the date of receipt of the questionnaire, which for this purpose shall be deemed to have been received one week from the day on which it was sent to the exporter or transmitted to the appropriate diplomatic representative of the exporting country. An extension to the 30-day period may be granted, due account being taken of the time limits of the investigation, provided that the party shows due cause for such an extension in terms of its particular circumstances.

3.   The Commission may request Member States to supply information, and Member States shall take whatever steps are necessary in order to give effect to such requests.

They shall send to the Commission the information requested together with the results of all inspections, checks or investigations carried out.

Where that information is of general interest or where its transmission has been requested by a Member State, the Commission shall forward it to the Member States, provided that it is not confidential, in which case a non-confidential summary shall be forwarded.

4.   The Commission may request Member States to carry out all necessary checks and inspections, particularly amongst importers, traders and Union producers, and to carry out investigations in third countries, provided that the firms concerned give their consent and that the government of the country in question has been officially notified and raises no objection.

Member States shall take whatever steps are necessary in order to give effect to such requests from the Commission.

Officials of the Commission shall be authorised, if the Commission or a Member State so requests, to assist the officials of Member States in carrying out their duties.

5.   The interested parties which have made themselves known in accordance with Article 5(10) shall be heard 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 an interested party likely to be affected by the result of the proceedings and that there are particular reasons why they should be heard.

6.   Opportunities shall, on request, be provided for the importers, exporters, representatives of the government of the exporting country and the complainants, which have made themselves known in accordance with Article 5(10), to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered.

Provision of such opportunities shall take account of the need to preserve confidentiality and of the convenience to the parties.

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.

Oral information provided under this paragraph shall be taken into account in so far as it is subsequently confirmed in writing.

7.   The complainants, importers and exporters and their representative associations, users and consumer organisations, which have made themselves known in accordance with Article 5(10), as well as the representatives of the exporting country, may, upon written request, inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the Union or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 19, and is used in the investigation.

Such parties may respond to such information and their comments shall be taken into consideration, wherever they are sufficiently substantiated in the response.

8.   Except in the circumstances provided for in Article 18, the information which is supplied by interested parties and upon which findings are based shall be examined for accuracy as far as possible.

9.   For proceedings initiated pursuant to Article 5(9), an investigation shall, whenever possible, be concluded within one year. In any event, such investigations shall in all cases be concluded within 15 months of initiation, in accordance with the findings made pursuant to Article 8 for undertakings or the findings made pursuant to Article 9 for definitive action.

Article 7

Provisional measures

1.   Provisional duties may be imposed if:

| (a) | proceedings have been initiated in accordance with Article 5; |
| --- | --- |

(a)

proceedings have been initiated in accordance with Article 5;

| (b) | a notice has been given to that effect and interested parties have been given an adequate opportunity to submit information and make comments in accordance with Article 5(10); |
| --- | --- |

(b)

a notice has been given to that effect and interested parties have been given an adequate opportunity to submit information and make comments in accordance with Article 5(10);

| (c) | a provisional affirmative determination has been made of dumping and consequent injury to the Union industry; and |
| --- | --- |

(c)

a provisional affirmative determination has been made of dumping and consequent injury to the Union industry; and

| (d) | the Union interest calls for intervention to prevent such injury. |
| --- | --- |

(d)

the Union interest calls for intervention to prevent such injury.

The provisional duties shall be imposed no earlier than 60 days from the initiation of the proceedings but no later than nine months from the initiation of the proceedings.

2.   The amount of the provisional anti-dumping duty shall not exceed the margin of dumping as provisionally established, but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union industry.

3.   Provisional duties shall be secured by a guarantee, and the release of the products concerned for free circulation in the Union shall be conditional upon the provision of such a guarantee.

4.   The Commission shall adopt provisional measures in accordance with the procedure referred to in Article 15(4).

5.   Where a Member State requests immediate intervention by the Commission and where the conditions in paragraph 1 are met, the Commission shall, within a maximum of five working days of receipt of the request, decide whether a provisional anti-dumping duty shall be imposed.

6.   Provisional duties may be imposed for six months and extended for a further three months or they may be imposed for nine months. However, they may only be extended, or imposed for a nine-month period, where exporters representing a significant percentage of the trade involved so request or do not object upon notification by the Commission.

Article 8

Undertakings

1.   On the condition that a provisional affirmative determination of dumping and injury has been made, the Commission may, in accordance with the advisory procedure referred to in Article 15(2), accept satisfactory voluntary undertaking offers submitted by any exporter to revise its prices or to cease exports at dumped prices, if it is satisfied that the injurious effect of the dumping is thereby eliminated.

In such a case and as long as such undertakings are in force, provisional duties imposed by the Commission in accordance with Article 7(1), or definitive duties imposed in accordance with Article 9(4), as the case may be, shall not apply to the relevant imports of the product concerned manufactured by the companies referred to in the Commission decision accepting undertakings, as subsequently amended.

Price increases under such undertakings shall not be higher than necessary to eliminate the margin of dumping and they should be less than the margin of dumping if such increases would be adequate to remove the injury to the Union industry.

2.   Undertakings may be suggested by the Commission, but no exporter shall be obliged to enter into such an undertaking. The fact that exporters do not offer such undertakings, or do not accept an invitation to do so, shall in no way prejudice consideration of the case.

However, it may be determined that a threat of injury is more likely to be realised if the dumped imports continue. Undertakings shall not be sought or accepted from exporters unless a provisional affirmative determination of dumping and injury caused by such dumping has been made.

Save in exceptional circumstances, undertakings may not be offered later than the end of the period during which representations may be made pursuant to Article 20(5).

3.   Undertakings offered need not be accepted if their acceptance is considered impractical, such as where the number of actual or potential exporters is too great, or for other reasons, including reasons of general policy. The exporter concerned may be provided with the reasons for which it is proposed to reject the offer of an undertaking and may be given an opportunity to make comments thereon. The reasons for rejection shall be set out in the definitive decision.

4.   Parties which offer an undertaking shall be required to provide a non-confidential version of that undertaking, so that it may be made available to interested parties to the investigation.

5.   Where undertakings are accepted, the investigation shall be terminated. The Commission shall terminate the investigation in accordance with the examination procedure referred to in Article 15(3).

6.   If the undertakings are accepted, the investigation of dumping and injury shall normally be completed. In such a case, if a negative determination of dumping or injury is made, the undertaking shall automatically lapse, except in cases where such a determination is due in large part to the existence of an undertaking. In such cases it may be required that an undertaking be maintained for a reasonable period.

In the event that an affirmative determination of dumping and injury is made, the undertaking shall continue in accordance with its terms and the provisions of this Regulation.

7.   The Commission shall require any exporter from which an undertaking has been accepted to provide, periodically, information relevant to the fulfilment of that undertaking, and to permit verification of pertinent data. Non-compliance with such requirements shall be construed as a breach of the undertaking.

8.   Where undertakings are accepted from certain exporters during the course of an investigation, they shall, for the purpose of Article 11, be deemed to take effect from the date on which the investigation is concluded for the exporting country.

9.   In the case of breach or withdrawal of undertakings by any party to the undertaking, or in the case of withdrawal of acceptance of the undertaking by the Commission, the acceptance of the undertaking shall be withdrawn by Commission Decision or Commission Regulation, as appropriate, and the provisional duty which has been imposed by the Commission in accordance with Article 7 or the definitive duty which has been imposed in accordance with Article 9(4) shall automatically apply, provided that the exporter concerned has, except where that exporter has withdrawn the undertaking, been given an opportunity to comment. The Commission shall provide information to the Member States when it decides to withdraw an undertaking.

Any interested party or Member State may submit information showing prima facie evidence of a breach of an undertaking. The subsequent assessment of whether or not a breach of an undertaking has occurred shall normally be concluded within six months, but in no case later than nine months following a duly substantiated request.

The Commission may request the assistance of the competent authorities of the Member States in the monitoring of undertakings.

10.   A provisional duty may be imposed in accordance with Article 7 on the basis of the best information available where there is reason to believe that an undertaking is being breached, or in the case of breach or withdrawal of an undertaking, where the investigation which led to the undertaking has not been concluded.

Article 9

Termination without measures; imposition of definitive duties

1.   Where the complaint is withdrawn, proceedings may be terminated unless such termination would not be in the Union's interest.

2.   Where protective measures are unnecessary, the investigation or proceedings shall be terminated. The Commission shall terminate the investigation in accordance with the examination procedure referred to in Article 15(3).

3.   For proceedings initiated pursuant to Article 5(9), injury shall normally be regarded as negligible where the imports concerned represent less than the volumes set out in Article 5(7). For the same proceedings, there shall be immediate termination where it is determined that the margin of dumping is less than 2 %, expressed as a percentage of the export price, provided that it is only the investigation that shall be terminated where the margin is below 2 % for individual exporters and they shall remain subject to the proceedings and may be reinvestigated in any subsequent review carried out for the country concerned pursuant to Article 11.

4.   Where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Commission acting in accordance with the examination procedure referred to in Article 15(3). Where provisional duties are in force, the Commission shall initiate that procedure no later than one month before the expiry of such duties.

The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union industry.

5.   An anti-dumping duty shall be imposed in the appropriate amounts in each case, on a non-discriminatory basis, on imports of a product from all sources found to be dumped and causing injury, except for imports from those sources from which undertakings under the terms of this Regulation have been accepted.

The regulation imposing anti-dumping measures shall specify the duty for each supplier or, if that is impracticable, the supplying country concerned. Suppliers which are legally distinct from other suppliers or which are legally distinct from the State may nevertheless be considered as a single entity for the purpose of specifying the duty. For the application of this subparagraph, account may be taken of factors such as the existence of structural or corporate links between the suppliers and the State or between suppliers, control or material influence by the State in respect of pricing and output, or the economic structure of the supplying country.

6.   When the Commission has limited its investigation in accordance with Article 17, any anti-dumping duty applied to imports from exporters or producers which have made themselves known in accordance with Article 17 but were not included in the investigation shall not exceed the weighted average margin of dumping established with respect to the parties in the sample, irrespective of whether the normal value for such parties is determined on the basis of Article 2(1) to (6) or point (a) of Article 2(7).

For the purpose of this paragraph, the Commission shall disregard any zero and de minimis margins, and margins established in the circumstances referred to in Article 18.

Individual duties shall be applied to imports from any exporter or producer which is granted individual treatment, as provided for in Article 17.

Article 10

Retroactivity

1.   Provisional measures and definitive anti-dumping duties shall only be applied to products which enter free circulation after the time when the measure taken pursuant to Article 7(1) or 9(4), as the case may be, enters into force, subject to the exceptions set out in this Regulation.

2.   Where a provisional duty has been applied and the facts as finally established show that there is dumping and injury, the Commission shall decide, irrespective of whether a definitive anti-dumping duty is to be imposed, what proportion of the provisional duty is to be definitively collected.

For that purpose, ‘injury’ shall not include material delay of the establishment of a Union industry, nor threat of material injury, except where it is found that this would, in the absence of provisional measures, have developed into material injury. In all other cases involving such threat or delay, any provisional amounts shall be released and definitive duties can only be imposed from the date on which a final determination of threat or material delay is made.

3.   If the definitive anti-dumping duty is higher than the provisional duty, the difference shall not be collected. If the definitive duty is lower than the provisional duty, the duty shall be recalculated. Where a final determination is negative, the provisional duty shall not be confirmed.

4.   A definitive anti-dumping duty may be levied on products which were entered for consumption no more than 90 days prior to the date of application of provisional measures but not prior to the initiation of the investigation, provided that:

| (a) | the imports have been registered in accordance with Article 14(5); |
| --- | --- |

(a)

the imports have been registered in accordance with Article 14(5);

| (b) | the importers concerned have been given an opportunity to comment by the Commission; |
| --- | --- |

(b)

the importers concerned have been given an opportunity to comment by the Commission;

| (c) | there is, for the product in question, a history of dumping over an extended period, or the importer was aware of, or should have been aware of, the dumping as regards the extent of the dumping and the injury alleged or found; and |
| --- | --- |

(c)

there is, for the product in question, a history of dumping over an extended period, or the importer was aware of, or should have been aware of, the dumping as regards the extent of the dumping and the injury alleged or found; and

| (d) | in addition to the level of imports which caused injury during the investigation period, there is a further substantial rise in imports which, in the light of its timing and volume and other circumstances, is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied. |
| --- | --- |

(d)

in addition to the level of imports which caused injury during the investigation period, there is a further substantial rise in imports which, in the light of its timing and volume and other circumstances, is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied.

5.   In cases of breach or withdrawal of undertakings, definitive duties may be levied on goods entered for free circulation no more than 90 days before the application of provisional measures, provided that the imports have been registered in accordance with Article 14(5), and that any such retroactive assessment shall not apply to imports entered before the breach or withdrawal of the undertaking.

Article 11

Duration, reviews and refunds

1.   An anti-dumping measure shall remain in force only as long as, and to the extent that, it is necessary to counteract the dumping which is causing injury.

2.   A definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on the initiative of the Commission, or upon a request made by or on behalf of Union producers, and the measure shall remain in force pending the outcome of that review.

An expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury. Such likelihood may, for example, be indicated by evidence of continued dumping and injury or evidence that the removal of injury is partly or solely due to the existence of measures or evidence that the circumstances of the exporters, or market conditions, are such that they would indicate the likelihood of further injurious dumping.

In carrying out investigations under this paragraph, the exporters, importers, the representatives of the exporting country and the Union producers shall be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request, and conclusions shall be reached with due account taken of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury.

A notice of impending expiry shall be published in the Official Journal of the European Union at an appropriate time in the final year of the period of application of the measures as defined in this paragraph. Thereafter, the Union producers shall, no later than three months before the end of the five-year period, be entitled to lodge a review request in accordance with the second subparagraph. A notice announcing the actual expiry of measures pursuant to this paragraph shall also be published.

3.   The need for the continued imposition of measures may also be reviewed, where warranted, on the initiative of the Commission or at the request of a Member State or, provided that a reasonable period of time of at least one year has elapsed since the imposition of the definitive measure, upon a request by any exporter or importer or by the Union producers which contains sufficient evidence substantiating the need for such an interim review.

An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury.

In carrying out investigations pursuant to this paragraph, the Commission may, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly, or whether existing measures are achieving the intended results in removing the injury previously established under Article 3. In those respects, account shall be taken in the final determination of all relevant and duly documented evidence.

4.   A review shall also be carried out for the purpose of determining individual margins of dumping for new exporters in the exporting country in question which have not exported the product during the period of investigation on which the measures were based.

The review shall be initiated where a new exporter or producer can show that it is not related to any of the exporters or producers in the exporting country which are subject to the anti-dumping measures on the product, and that it has actually exported to the Union following the investigation period, or where it can demonstrate that it has entered into an irrevocable contractual obligation to export a significant quantity to the Union.

A review for a new exporter shall be initiated and carried out on an accelerated basis after Union producers have been given an opportunity to comment. The Commission Regulation initiating a review shall repeal the duty in force with regard to the new exporter concerned by amending the regulation which has imposed such duty, and by making imports subject to registration in accordance with Article 14(5) in order to ensure that, should the review result in a determination of dumping in respect of such an exporter, anti-dumping duties can be levied retroactively to the date of the initiation of the review.

The provisions of this paragraph shall not apply where duties have been imposed under Article 9(6).

5.   The relevant provisions of this Regulation with regard to procedures and the conduct of investigations, excluding those relating to time limits, shall apply to any review carried out pursuant to paragraphs 2, 3 and 4.

Reviews carried out pursuant to paragraphs 2 and 3 shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review. In any event, reviews pursuant to paragraphs 2 and 3 shall in all cases be concluded within 15 months of initiation.

Reviews pursuant to paragraph 4 shall in all cases be concluded within nine months of the date of initiation.

If a review carried out pursuant to paragraph 2 is initiated while a review under paragraph 3 is ongoing in the same proceedings, the review pursuant to paragraph 3 shall be concluded at the same time as the review pursuant to paragraph 2.

If the investigation is not completed within the deadlines specified in the second, third and fourth subparagraphs, the measures shall:

| — | expire in investigations pursuant to paragraph 2, |
| --- | --- |

—

expire in investigations pursuant to paragraph 2,

| — | expire in the case of investigations carried out pursuant to paragraphs 2 and 3 in parallel, where either the investigation pursuant to paragraph 2 was initiated while a review under paragraph 3 was ongoing in the same proceedings or where such reviews were initiated at the same time, or |
| --- | --- |

—

expire in the case of investigations carried out pursuant to paragraphs 2 and 3 in parallel, where either the investigation pursuant to paragraph 2 was initiated while a review under paragraph 3 was ongoing in the same proceedings or where such reviews were initiated at the same time, or

| — | remain unchanged in investigations pursuant to paragraphs 3 and 4. |
| --- | --- |

—

remain unchanged in investigations pursuant to paragraphs 3 and 4.

A notice announcing the actual expiry or maintenance of the measures pursuant to this paragraph shall then be published in the Official Journal of the European Union.

6.   Reviews pursuant to this Article shall be initiated by the Commission. The Commission shall decide whether or not to initiate reviews pursuant to paragraph 2 of this Article in accordance with the advisory procedure referred to in Article 15(2). The Commission shall also provide information to the Member States once an operator or a Member State has submitted a request justifying the initiation of a review pursuant to paragraphs 3 and 4 of this Article and the Commission has completed its analysis thereof, or once the Commission has itself determined that the need for the continued imposition of measures should be reviewed.

Where warranted by reviews, measures shall, in accordance with the examination procedure referred to in Article 15(3), be repealed or maintained pursuant to paragraph 2 of this Article, or repealed, maintained or amended pursuant to paragraphs 3 and 4 of this Article.

Where measures are repealed for individual exporters, but not for the country as a whole, such exporters shall remain subject to the proceedings and may, automatically, be reinvestigated in any subsequent review carried out for that country pursuant to this Article.

7.   Where a review of measures pursuant to paragraph 3 is in progress at the end of the period of application of measures as defined in paragraph 2, such a review shall also cover the circumstances set out in paragraph 2.

8.   Notwithstanding paragraph 2, an importer may request reimbursement of duties collected where it is shown that the dumping margin, on the basis of which duties were paid, has been eliminated, or reduced to a level which is below the level of the duty in force.

In requesting a refund of anti-dumping duties, the importer shall submit an application to the Commission. The application shall be submitted via the Member State of the territory in which the products were released for free circulation, within six months of the date on which the amount of the definitive duties to be levied was duly determined by the competent authorities or of the date on which a decision was made definitively to collect the amounts secured by way of provisional duty. Member States shall forward the request to the Commission forthwith.

An application for refund shall only be considered to be duly supported by evidence where it contains precise information on the amount of refund of anti-dumping duties claimed and all customs documentation relating to the calculation and payment of such amount. It shall also include evidence, for a representative period, of normal values and export prices to the Union for the exporter or producer to which the duty applies. In cases where the importer is not associated with the exporter or producer concerned and such information is not immediately available, or where the exporter or producer is unwilling to release it to the importer, the application shall contain a statement from the exporter or producer that the dumping margin has been reduced or eliminated, as specified in this Article, and that the relevant supporting evidence will be provided to the Commission. Where such evidence is not forthcoming from the exporter or producer within a reasonable period of time the application shall be rejected.

The Commission shall decide whether and to what extent the application should be granted, or it may decide at any time to initiate an interim review, whereupon the information and findings from such a review carried out in accordance with the provisions applicable for such reviews shall be used to determine whether and to what extent a refund is justified. The Commission shall provide information to the Member States once it has completed its analysis of the application.

Refunds of duties shall normally take place within 12 months, and in no circumstances more than 18 months after the date on which a request for a refund, duly supported by evidence, has been made by an importer of the product subject to the anti-dumping duty.

The payment of any refund authorised should normally be made by Member States within 90 days of the Commission's decision.

9.   In all review or refund investigations carried out pursuant to this Article, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Article 2, and in particular paragraphs 11 and 12 thereof, and of Article 17.

10.   In any investigation carried our pursuant to this Article, the Commission shall examine the reliability of export prices in accordance with Article 2. However, where it is decided to construct the export price in accordance with Article 2(9), it shall calculate it with no deduction for the amount of anti-dumping duties paid when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the Union.

Article 12

Absorption

1.   Where the Union industry or any other interested party submit, normally within two years from the entry into force of the measures, sufficient information showing that, after the original investigation period and prior to or following the imposition of measures, export prices have decreased or that there has been no movement, or insufficient movement, in the resale prices or subsequent selling prices of the imported product in the Union, the Commission may reopen the investigation to examine whether the measure has had effects on the abovementioned prices. The Commission shall provide information to the Member States once an interested party has submitted sufficient information justifying the reopening of the investigation and the Commission has completed its analysis thereof.

The investigation may also be reopened, under the conditions set out in the first subparagraph, on the initiative of the Commission or at the request of a Member State.

2.   During a reinvestigation pursuant to this Article, exporters, importers and Union producers shall be provided with an opportunity to clarify the situation with regard to resale prices and subsequent selling prices. If it is concluded that the measure should have led to movements in such prices, then, in order to remove the injury previously established in accordance with Article 3, export prices shall be reassessed in accordance with Article 2 and dumping margins shall be recalculated to take account of the reassessed export prices. Where it is considered that the conditions of Article 12(1) are met due to a fall in export prices which has occurred after the original investigation period and prior to or following the imposition of measures, dumping margins may be recalculated to take account of such lower export prices.

3.   Where a reinvestigation pursuant to this Article shows increased dumping, the measures in force may be amended by the Commission acting in accordance with the examination procedure referred to in Article 15(3), in accordance with the new findings on export prices. The amount of the anti-dumping duty imposed pursuant to this Article shall not exceed twice the amount of the duty imposed initially.

4.   The relevant provisions of Articles 5 and 6 shall apply to any reinvestigation carried out pursuant to this Article, except that such reinvestigation shall be carried out expeditiously and shall normally be concluded within six months of the date of initiation of the reinvestigation. In any event, such reinvestigations shall in all cases be concluded within nine months of initiation of the reinvestigation.

If the reinvestigation is not completed within the deadlines specified in the first subparagraph, measures shall remain unchanged. A notice announcing the maintenance of the measures pursuant to this paragraph shall be published in the Official Journal of the European Union.

5.   Alleged changes in normal value shall only be taken into account under this Article where complete information on revised normal values, duly substantiated by evidence, is made available to the Commission within the time limits set out in the notice of initiation of an investigation. Where an investigation involves a re-examination of normal values, imports may be made subject to registration in accordance with Article 14(5) pending the outcome of the reinvestigation.

Article 13

Circumvention

1.   Anti-dumping duties imposed pursuant to this Regulation may be extended to imports from third countries of the like product, whether slightly modified or not, or to imports of the slightly modified like product from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place.

Anti-dumping duties not exceeding the residual anti-dumping duty imposed in accordance with Article 9(5) may be extended to imports from companies benefiting from individual duties in the countries subject to measures when circumvention of the measures in force is taking place.

Circumvention shall be defined as a change in the pattern of trade between third countries and the Union or between individual companies in the country subject to measures and the Union, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like product, and where there is evidence of dumping in relation to the normal values previously established for the like product, if necessary in accordance with the provisions of Article 2.

The practice, process or work referred to in the third subparagraph includes, inter alia:

| (a) | the slight modification of the product concerned to make it fall under customs codes which are normally not subject to the measures, provided that the modification does not alter its essential characteristics; |
| --- | --- |

(a)

the slight modification of the product concerned to make it fall under customs codes which are normally not subject to the measures, provided that the modification does not alter its essential characteristics;

| (b) | the consignment of the product subject to measures via third countries; |
| --- | --- |

(b)

the consignment of the product subject to measures via third countries;

| (c) | the reorganisation by exporters or producers of their patterns and channels of sales in the country subject to measures in order to eventually have their products exported to the Union through producers benefiting from an individual duty rate lower than that applicable to the products of the manufacturers; |
| --- | --- |

(c)

the reorganisation by exporters or producers of their patterns and channels of sales in the country subject to measures in order to eventually have their products exported to the Union through producers benefiting from an individual duty rate lower than that applicable to the products of the manufacturers;

| (d) | in the circumstances indicated in paragraph 2, the assembly of parts by an assembly operation in the Union or a third country. |
| --- | --- |

(d)

in the circumstances indicated in paragraph 2, the assembly of parts by an assembly operation in the Union or a third country.

2.   An assembly operation in the Union or a third country shall be considered to circumvent the measures in force where:

| (a) | the operation started or substantially increased since, or just prior to, the initiation of the anti-dumping investigation and the parts concerned are from the country subject to measures; and |
| --- | --- |

(a)

the operation started or substantially increased since, or just prior to, the initiation of the anti-dumping investigation and the parts concerned are from the country subject to measures; and

| (b) | the parts constitute 60 % or more of the total value of the parts of the assembled product, except that in no case shall circumvention be considered to be taking place where the value added to the parts brought in, during the assembly or completion operation, is greater than 25 % of the manufacturing cost; and |
| --- | --- |

(b)

the parts constitute 60 % or more of the total value of the parts of the assembled product, except that in no case shall circumvention be considered to be taking place where the value added to the parts brought in, during the assembly or completion operation, is greater than 25 % of the manufacturing cost; and

| (c) | the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the assembled like product and there is evidence of dumping in relation to the normal values previously established for the like or similar products. |
| --- | --- |

(c)

the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the assembled like product and there is evidence of dumping in relation to the normal values previously established for the like or similar products.

3.   Investigations shall be initiated pursuant to this Article on the initiative of the Commission or at the request of a Member State or any interested party on the basis of sufficient evidence regarding the factors set out in paragraph 1. Initiations shall be made by Commission Regulation which may also instruct customs authorities to subject imports to registration in accordance with Article 14(5) or to request guarantees. The Commission shall provide information to the Member States once an interested party or a Member State has submitted a request justifying the initiation of an investigation and the Commission has completed its analysis thereof, or where the Commission has itself determined that there is a need to initiate an investigation.

Investigations shall be carried out by the Commission. The Commission may be assisted by customs authorities and the investigation shall be concluded within nine months.

Where the facts as finally ascertained justify the extension of measures, this shall be done by the Commission acting in accordance with the examination procedure referred to in Article 15(3). The extension shall take effect from the date on which registration was imposed pursuant to Article 14(5), or on which guarantees were requested. The relevant procedural provisions of this Regulation concerning the initiation and the conduct of investigations shall apply pursuant to this Article.

4.   Imports shall not be subject to registration pursuant to Article 14(5) or measures where they are traded by companies which benefit from exemptions.

Requests for exemptions duly supported by evidence shall be submitted within the time limits established in the Commission regulation initiating the investigation.

Where the circumventing practice, process or work takes place outside the Union, exemptions may be granted to producers of the product concerned that can show that they are not related to any producer subject to the measures and that are found not to be engaged in circumvention practices as defined in paragraphs 1 and 2 of this Article.

Where the circumventing practice, process or work takes place inside the Union, exemptions may be granted to importers that can show that they are not related to producers subject to the measures.

Those exemptions shall be granted by decision of the Commission and shall remain valid for the period and under the conditions set down therein. The Commission shall provide information to the Member States once it has concluded its analysis.

Provided that the conditions set in Article 11(4) are met, exemptions may also be granted after the conclusion of the investigation leading to the extension of the measures.

Provided that at least one year has lapsed from the extension of the measures, and in case the number of parties requesting or potentially requesting an exemption is significant, the Commission may decide to initiate a review of the extension of the measures. Any such review shall be conducted in accordance with the provisions of Article 11(5) as applicable to reviews pursuant to Article 11(3).

5.   Nothing in this Article shall preclude the normal application of the provisions in force concerning customs duties.

Article 14

General provisions

1.   Provisional or definitive anti-dumping duties shall be imposed by regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the regulation imposing such duties. Such duties shall also be collected independently of the customs duties, taxes and other charges normally imposed on imports.

No product shall be subject to both anti-dumping and countervailing duties for the purpose of dealing with one and the same situation arising from dumping or from export subsidisation.

2.   Regulations imposing provisional or definitive anti-dumping duties, and regulations or decisions accepting undertakings or terminating investigations or proceedings, shall be published in the Official Journal of the European Union.

Such regulations or decisions shall contain in particular, and with due regard to the protection of confidential information, the names of the exporters, if possible, or of the countries involved, a description of the product and a summary of the material facts and considerations relevant to the dumping and injury determinations. In each case, a copy of the regulation or decision shall be sent to known interested parties. The provisions of this paragraph shall apply mutatis mutandis to reviews.

3.   Special provisions, in particular with regard to the common definition of the concept of origin, as contained in Regulation (EU) No 952/2013 of the European Parliament and of the Council (7), may be adopted pursuant to this Regulation.

4.   In the Union interest, measures imposed pursuant to this Regulation may be suspended by a decision of the Commission in accordance with the advisory procedure referred to in Article 15(2) for a period of nine months. The suspension may be extended for a further period, not exceeding one year, by the Commission acting in accordance with the advisory procedure referred to in Article 15(2).

Measures may only be suspended where market conditions have temporarily changed to an extent that injury would be unlikely to resume as a result of the suspension, and provided that the Union industry has been given an opportunity to comment and those comments have been taken into account. Measures may at any time be reinstated in accordance with the advisory procedure referred to in Article 15(2) if the reason for suspension is no longer applicable.

5.   The Commission may, after having informed the Member States in due time, direct the customs authorities to take the appropriate steps to register imports, so that measures may subsequently be applied against those imports from the date of such registration. Imports may be made subject to registration following a request from the Union industry which contains sufficient evidence to justify such action. Registration shall be introduced by regulation which shall specify the purpose of the action and, if appropriate, the estimated amount of possible future liability. Imports shall not be made subject to registration for a period longer than nine months.

6.   Member States shall report to the Commission every month on the import trade in products subject to investigation and to measures, and on the amount of duties collected pursuant to this Regulation.

7.   Without prejudice to paragraph 6, the Commission may request Member States, on a case-by-case basis, to supply information necessary to monitor efficiently the application of measures. In this respect, the provisions of Article 6(3) and (4) shall apply. Any data submitted by Member States pursuant to this Article shall be covered by the provisions of Article 19(6).

Article 15

Committee procedure

1.   The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

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.

4.   Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 4 thereof, shall apply.

5.   Pursuant to Article 3(5) of Regulation (EU) No 182/2011, where the written procedure is used to adopt definitive measures pursuant to paragraph 3 of this Article, or to decide on the initiation or non-initiation of expiry reviews pursuant to Article 11(6) of this Regulation, that procedure shall be terminated without result where, within the time limit set down by the chair, the chair so decides or a majority of committee members as defined in Article 5(1) of Regulation (EU) No 182/2011 so request. Where the written procedure is used in other instances where there has been a discussion of the draft measure in the committee, such procedure shall be terminated without result where, within the time limit set down by the chair, the chair so decides or a simple majority of committee members so request. Where the written procedure is used in other instances where there has not been a discussion of the draft measure in the committee, such procedure shall be terminated without result where, within the time limit set down by the chair, the chair so decides or at least a quarter of committee members so request.

6.   The committee may consider any matter relating to the application of this Regulation, raised by the Commission or at the request of a Member State. Member States may request information and may exchange views in the committee or directly with the Commission.

Article 16

Verification visits

1.   The Commission shall, where it considers it appropriate, carry out visits to examine the records of importers, exporters, traders, agents, producers, trade associations and organisations and to verify information provided on dumping and injury. In the absence of a proper and timely reply, the Commission may choose not to carry out a verification visit.

2.   The Commission may carry out investigations in third countries as required, provided that it obtains the agreement of the firms concerned, that it notifies the representatives of the government of the country in question and that the latter does not object to the investigation. As soon as the agreement of the firms concerned has been obtained, the Commission shall notify the authorities of the exporting country of the names and addresses of the firms to be visited and the dates agreed.

3.   The firms concerned shall be advised of the nature of the information to be verified during verification visits and of any further information which needs to be provided during such visits, though this does not preclude requests, made during the verification, for further details to be provided in the light of information obtained.

4.   In investigations carried out pursuant to paragraphs 1, 2 and 3, the Commission shall be assisted by officials of those Member States which so request.

Article 17

Sampling

1.   In cases where the number of complainants, exporters or importers, types of product or transactions is large, the investigation may be limited to a reasonable number of parties, products or transactions by using samples which are statistically valid on the basis of information available at the time of the selection, or to the largest representative volume of production, sales or exports which can reasonably be investigated within the time available.

2.   The final selection of parties, types of products or transactions made under these sampling provisions shall rest with the Commission, though preference shall be given to choosing a sample in consultation with, and with the consent of, the parties concerned, provided that such parties make themselves known and make sufficient information available, within three weeks of initiation of the investigation, to enable a representative sample to be chosen.

3.   In cases where the investigation has been limited in accordance with this Article, an individual margin of dumping shall, nevertheless, be calculated for any exporter or producer not initially selected who submits the necessary information within the time limits provided for in this Regulation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome and would prevent completion of the investigation in good time.

4.   Where it is decided to sample and there is a degree of non-cooperation by some or all of the parties selected which is likely to materially affect the outcome of the investigation, a new sample may be selected.

However, if a material degree of non-cooperation persists or there is insufficient time to select a new sample, the relevant provisions of Article 18 shall apply.

Article 18

Non-cooperation

1.   In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided for in this Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available.

Where it is found that any interested party has supplied false or misleading information, that information shall be disregarded and use may be made of facts available.

Interested parties shall be made aware of the consequences of non-cooperation.

2.   Failure to give a computerised response shall not be deemed to constitute non-cooperation, provided that the interested party shows that presenting the response as requested would result in an unreasonable extra burden or unreasonable additional cost.

3.   Where the information submitted by an interested party is not ideal in all respects, it shall nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability.

4.   If evidence or information is not accepted, the supplying party shall be informed forthwith of the reasons therefor and shall be granted an opportunity to provide further explanations within the time limit specified. If the explanations are considered unsatisfactory, the reasons for rejection of such evidence or information shall be disclosed and given in published findings.

5.   If determinations, including those regarding normal value, are based on the provisions of paragraph 1, including the information supplied in the complaint, it shall, where practicable and with due regard to the time limits of the investigation, be checked by reference to information from other independent sources which may be available, such as published price lists, official import statistics and customs returns, or information obtained from other interested parties during the investigation.

Such information may include relevant data pertaining to the world market or other representative markets, where appropriate.

6.   If an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result of the investigation may be less favourable to the party than if it had cooperated.

Article 19

Confidentiality

1.   Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom the person supplying the information has acquired the information) or which is provided on a confidential basis by parties to an investigation shall, if good cause is shown, be treated as such by the authorities.

2.   Interested parties providing confidential information shall be required to provide non-confidential summaries thereof. Those summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not capable of being summarised. In such exceptional circumstances, a statement of the reasons why such summarisation is not possible shall be provided.

3.   If it is considered that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information available or to authorise its disclosure in generalised or summary form, such information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct. Requests for confidentiality shall not be arbitrarily rejected.

4.   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, or disclosure of the evidence relied on by the Union authorities in so far as is necessary to explain those reasons in court proceedings. Such disclosure shall take into account the legitimate interests of the parties concerned that their business secrets not be divulged.

5.   The Commission and Member States, including the officials of either, shall not reveal any information received pursuant to this Regulation for which confidential treatment has been requested by its supplier, without specific permission from that supplier. Exchanges of information between the Commission and Member States, or any internal documents prepared by the authorities of the Union or the Member States, shall not be divulged except as specifically provided for in this Regulation.

6.   Information received pursuant to this Regulation shall be used only for the purpose for which it was requested.

This provision shall not preclude the use of information received in the context of one investigation for the purpose of initiating other investigations within the same proceedings in relation to the product concerned.

Article 20

Disclosure

1.   The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Requests for such disclosure shall be made in writing immediately following the imposition of provisional measures, and the disclosure shall be made in writing as soon as possible thereafter.

2.   The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.

3.   Requests for final disclosure, as defined in paragraph 2, shall be addressed to the Commission in writing and be received, in cases where a provisional duty has been imposed, no later than one month after publication of the imposition of that duty. Where a provisional duty has not been imposed, parties shall be provided with an opportunity to request final disclosure within time limits set by the Commission.

4.   Final disclosure shall be given in writing. It shall be made, due regard being had to the protection of confidential information, as soon as possible and, normally, no later than one month prior to the initiation of the procedures set out in Article 9. Where the Commission is not in a position to disclose certain facts or considerations at that time, they shall be disclosed as soon as possible thereafter.

Disclosure shall not prejudice any subsequent decision which may be taken by the Commission, but where such a decision is based on any different facts and considerations they shall be disclosed as soon as possible.

5.   Representations made after final disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter. A shorter period may be set whenever an additional final disclosure has to be made.

Article 21

Union interest

1.   A determination as to whether the Union's interest calls for intervention shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers. A determination pursuant to this Article shall only be made where all parties have been given the opportunity to make their views known pursuant to paragraph 2. In such an examination, the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration. Measures, as determined on the basis of the dumping and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the Union's interest to apply such measures.

2.   In order to provide a sound basis on which the authorities can take account of all views and information in the decision as to whether or not the imposition of measures is in the Union's interest, the complainants, importers and their representative associations, representative users and representative consumer organisations may, within the time limits specified in the notice of initiation of the anti-dumping investigation, make themselves known and provide information to the Commission. Such information, or appropriate summaries thereof, shall be made available to the other parties specified in this Article, and they shall be entitled to respond to such information.

3.   The parties which have acted in accordance with paragraph 2 may request a hearing. Such requests shall be granted when they are submitted within the time limits set in paragraph 2, and when they set out the reasons, in terms of the Union's interest, why the parties should be heard.

4.   The parties which have acted in accordance with paragraph 2 may provide comments on the application of any provisional duties. Such comments shall be received within 25 days of the date of application of such measures if they are to be taken into account and they, or appropriate summaries thereof, shall be made available to other parties who shall be entitled to respond to such comments.

5.   The Commission shall examine the information which is properly submitted and the extent to which it is representative, and the results of such analysis, together with an opinion on its merits, shall be transmitted to the committee referred to in Article 15 as part of the draft measure submitted pursuant to Article 9. The views expressed in the committee should be taken into account by the Commission under the conditions provided for in Regulation (EU) No 182/2011.

6.   The parties which have acted in conformity with paragraph 2 may request that the facts and considerations on which final decisions are likely to be taken be made available to them. Such information shall be made available to the extent possible and without prejudice to any subsequent decision taken by the Commission.

7.   Information shall only be taken into account where it is supported by actual evidence which substantiates its validity.

Article 22

Final provisions

This Regulation shall not preclude the application of:

| (a) | any special rules laid down in agreements concluded between the Union and third countries; |
| --- | --- |

(a)

any special rules laid down in agreements concluded between the Union and third countries;

| (b) | the Union Regulations in the agricultural sector and Council Regulations (EC) No 1667/2006 (8), (EC) No 614/2009 (9) and (EC) No 1216/2009 (10). This Regulation shall operate by way of complement to those Regulations and in derogation from any provisions thereof which preclude the application of anti-dumping duties; |
| --- | --- |

(b)

the Union Regulations in the agricultural sector and Council Regulations (EC) No 1667/2006 (8), (EC) No 614/2009 (9) and (EC) No 1216/2009 (10). This Regulation shall operate by way of complement to those Regulations and in derogation from any provisions thereof which preclude the application of anti-dumping duties;

8

9

10

| (c) | special measures, provided that such action does not run counter to obligations under the General Agreement on Tariffs and Trade 1994. |
| --- | --- |

(c)

special measures, provided that such action does not run counter to obligations under the General Agreement on Tariffs and Trade 1994.

Article 23

Report

1.   The Commission shall, with due regard to the protection of confidential information within the meaning of Article 19, present an annual report on the application and implementation of this Regulation to the European Parliament and to the Council. The report shall include information about the application of provisional and definitive measures, the termination of investigations without measures, reinvestigations, reviews and verification visits, and the activities of the various bodies responsible for monitoring the implementation of this Regulation and fulfilment of the obligations arising therefrom.

2.   The European Parliament may, within one month of the Commission presenting the report, invite the Commission to an ad hoc meeting of its responsible committee to present and explain any issues related to the implementation of this Regulation.

3.   No later than six months after presenting the report to the European Parliament and to the Council, the Commission shall make the report public.

Article 24

Repeal

Regulation (EC) No 1225/2009 is repealed.

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 25

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Official Journal of the European Union

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Strasbourg, 8 June 2016.

For the European Parliament

The President

M. SCHULZ

For the Council

The President

A.G. KOENDERS

---

(1)  Position of the European Parliament of 10 May 2016 (not yet published in the Official Journal) and Council decision of 30 May 2016.

1

(2)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, 22.12.2009, p. 51).

2

(3)  See Annex I.

3

(4)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

4

(5)  Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code (OJ L 343, 29.12.2015, p. 558).

5

(6)  Including Albania, Armenia, Azerbaijan, Belarus, Georgia, Kyrgyzstan, Moldova, Mongolia, North Korea, Tajikistan, Turkmenistan and Uzbekistan.

6

(7)  Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1).

7

(8)  Council Regulation (EC) No 1667/2006 of 7 November 2006 on glucose and lactose (OJ L 312, 11.11.2006, p. 1).

8

(9)  Council Regulation (EC) No 614/2009 of 7 July 2009 on the common system of trade for ovalbumin and lactalbumin (OJ L 181, 14.7.2009, p. 8).

9

(10)  Council Regulation (EC) No 1216/2009 of 30 November 2009 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products (OJ L 328, 15.12.2009, p. 10).

10

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ANNEX I

REPEALED REGULATION WITH LIST OF ITS SUCCESSIVE AMENDMENTS

| Council Regulation (EC) No 1225/2009
  (OJ L 343, 22.12.2009, p. 51) | |
| --- | --- |
| Regulation (EU) No 765/2012 of the European Parliament and of the Council
  (OJ L 237, 3.9.2012, p. 1) | |
| Regulation (EU) No 1168/2012 of the European Parliament and of the Council
  (OJ L 344, 14.12.2012, p. 1) | |
| Regulation (EU) No 37/2014 of the European Parliament and of the Council
  (OJ L 18, 21.1.2014, p. 1) | Only point 22 of the Annex |

Council Regulation (EC) No 1225/2009

(OJ L 343, 22.12.2009, p. 51)

Regulation (EU) No 765/2012 of the European Parliament and of the Council

(OJ L 237, 3.9.2012, p. 1)

Regulation (EU) No 1168/2012 of the European Parliament and of the Council

(OJ L 344, 14.12.2012, p. 1)

Regulation (EU) No 37/2014 of the European Parliament and of the Council

(OJ L 18, 21.1.2014, p. 1)

Only point 22 of the Annex

---

ANNEX II

CORRELATION TABLE

| Regulation (EC) No 1225/2009 | This Regulation |
| --- | --- |
| Articles 1 to 4 | Articles 1 to 4 |
| Article 5(1) to (9) | Article 5(1) to (9) |
| Article 5(10), first sentence | Article 5(10), first subparagraph |
| Article 5(10), second and third sentence | Article 5(10), second subparagraph |
| Article 5(11) and (12) | Article 5(11) and (12) |
| Article 6(1), first and second sentence | Article 6(1), first subparagraph |
| Article 6(1), third sentence | Article 6(1), second subparagraph |
| Article 6(1), fourth sentence | Article 6(1), third subparagraph |
| Article 6(2) | Article 6(2) |
| Article 6(3), first sentence | Article 6(3), first subparagraph |
| Article 6(3), second sentence | Article 6(3), second subparagraph |
| Article 6(3), third sentence | Article 6(3), third subparagraph |
| Article 6(4), first sentence | Article 6(4), first subparagraph |
| Article 6(4), second sentence | Article 6(4), second subparagraph |
| Article 6(4), third sentence | Article 6(4), third subparagraph |
| Article 6(5) | Article 6(5) |
| Article 6(6), first sentence | Article 6(6), first subparagraph |
| Article 6(6), second sentence | Article 6(6), second subparagraph |
| Article 6(6), third sentence | Article 6(6), third subparagraph |
| Article 6(6), fourth sentence | Article 6(6), fourth subparagraph |
| Article 6(7), first sentence | Article 6(7), first subparagraph |
| Article 6(7), second sentence | Article 6(7), second subparagraph |
| Article 6(8) and (9) | Article 6(8) and (9) |
| Article 7(1), first sentence | Article 7(1), first subparagraph |
| Article 7(1), second sentence | Article 7(1), second subparagraph |
| Article 7(2) to (5) | Article 7(2) to (5) |
| Article 7(7) | Article 7(6) |
| Article 8(1), first sentence | Article 8(1), first subparagraph |
| Article 8(1), second sentence | Article 8(1), second subparagraph |
| Article 8(1), third sentence | Article 8(1), third subparagraph |
| Article 8(2), first and second sentence | Article 8(2), first subparagraph |
| Article 8(2), third and fourth sentence | Article 8(2), second subparagraph |
| Article 8(2), fifth sentence | Article 8(2), third subparagraph |
| Article 8(3), (4) and (5) | Article 8(3), (4) and (5) |
| Article 8(6), first and second sentence | Article 8(6), first subparagraph |
| Article 8(6), third sentence | Article 8(6), second subparagraph |
| Article 8(7) and (8) | Article 8(7) and (8) |
| Article 8(9), first subparagraph | Article 8(9), first subparagraph |
| Article 8(9), second subparagraph, first and second sentence | Article 8(9), second subparagraph |
| Article 8(9), second subparagraph, third sentence | Article 8(9), third subparagraph |
| Article 8(10) | Article 8(10) |
| Article 9(1), (2) and (3) | Article 9(1), (2) and (3) |
| Article 9(4), first sentence | Article 9(4), first subparagraph |
| Article 9(4), second sentence | Article 9(4), second subparagraph |
| Article 9(5) | Article 9(5) |
| Article 9(6), first sentence | Article 9(6), first subparagraph |
| Article 9(6), second sentence | Article 9(6), second subparagraph |
| Article 9(6), third sentence | Article 9(6), third subparagraph |
| Article 10(1) | Article 10(1) |
| Article 10(2), first sentence | Article 10(2), first subparagraph |
| Article 10(2), second and third sentence | Article 10(2), second subparagraph |
| Article 10(3) | Article 10(3) |
| Article 10(4), introductory wording | Article 10(4), introductory wording and points (a) and (b) |
| Article 10(4)(a) | Article 10(4)(c) |
| Article 10(4)(b) | Article 10(4)(d) |
| Article 10(5) | Article 10(5) |
| Article 11(1) to (4) | Article 11(1) to (4) |
| Article 11(5), first subparagraph, first sentence | Article 11(5), first subparagraph |
| Article 11(5), first subparagraph, second and third sentence | Article 11(5), second subparagraph |
| Article 11(5), first subparagraph, fourth sentence | Article 11(5), third subparagraph |
| Article 11(5), first subparagraph, fifth sentence | Article 11(5), fourth subparagraph |
| Article 11(5), second subparagraph | Article 11(5), fifth subparagraph |
| Article 11(5), third subparagraph | Article 11(5), sixth subparagraph |
| Article 11(6), first, second and third sentence | Article 11(6), first subparagraph |
| Article 11(6), fourth sentence | Article 11(6), second subparagraph |
| Article 11(6), fifth sentence | Article 11(6), third subparagraph |
| Article 11(7) | Article 11(7) |
| Article 11(8), first, second and third subparagraph | Article 11(8), first, second and third subparagraph |
| Article 11(8), fourth subparagraph, first and second sentence | Article 11(8), fourth subparagraph |
| Article 11(8), fourth subparagraph, third sentence | Article 11(8), fifth subparagraph |
| Article 11(8), fourth subparagraph, fourth sentence | Article 11(8), sixth subparagraph |
| Article 11(9) and (10) | Article 11(9) and (10) |
| Article 12 | Article 12 |
| Article 13(1), first subparagraph, first sentence | Article 13(1), first subparagraph |
| Article 13(1), first subparagraph, second sentence | Article 13(1), second subparagraph |
| Article 13(1), first subparagraph, third sentence | Article 13(1), third subparagraph |
| Article 13(1), second subparagraph | Article 13(1), fourth subparagraph |
| Article 13(2) and (3) | Article 13(2) and (3) |
| Article 13(4), first subparagraph, first sentence | Article 13(4), first subparagraph |
| Article 13(4), first subparagraph, second sentence | Article 13(4), second subparagraph |
| Article 13(4), first subparagraph, third sentence | Article 13(4), third subparagraph |
| Article 13(4), first subparagraph, fourth sentence | Article 13(4), fourth subparagraph |
| Article 13(4), second subparagraph | Article 13(4), fifth subparagraph |
| Article 13(4), third subparagraph | Article 13(4), sixth subparagraph |
| Article 13(4), fourth subparagraph | Article 13(4), seventh subparagraph |
| Article 13(5) | Article 13(5) |
| Article 14(1), first and second sentence | Article 14(1), first subparagraph |
| Article 14(1), third sentence | Article 14(1), second subparagraph |
| Article 14(2), first sentence | Article 14(2), first subparagraph |
| Article 14(2), second, third and fourth sentence | Article 14(2), second subparagraph |
| Article 14(3) | Article 14(3) |
| Article 14(4), first and second sentence | Article 14(4), first subparagraph |
| Article 14(4), third and fourth sentence | Article 14(4), second subparagraph |
| Article 14(5), (6) and (7) | Article 14(5), (6) and (7) |
| Articles 15 and 16 | Articles 15 and 16 |
| Article 17(1), (2) and (3) | Article 17(1), (2) and (3) |
| Article 17(4), first sentence | Article 17(4), first subparagraph |
| Article 17(4), second sentence | Article 17(4), second subparagraph |
| Article 18(1), first sentence | Article 18(1), first subparagraph |
| Article 18(1), second sentence | Article 18(1), second subparagraph |
| Article 18(1), third sentence | Article 18(1), third subparagraph |
| Article 18(2) to (6) | Article 18(2) to (6) |
| Article 19(1) to (5) | Article 19(1) to (5) |
| Article 19(6), first sentence | Article 19(6), first subparagraph |
| Article 19(6), second sentence | Article 19(6), second subparagraph |
| Article 20(1), (2) and (3) | Article 20(1), (2) and (3) |
| Article 20(4), first, second and third sentence | Article 20(4), first subparagraph |
| Article 20(4), fourth sentence | Article 20(4), second subparagraph |
| Article 20(5) | Article 20(5) |
| Articles 21 and 22 | Articles 21 and 22 |
| Article 22a | Article 23 |
| Article 23 | Article 24 |
| Article 24 | Article 25 |
| Annex I | — |
| Annex II | — |
| — | Annex I |
| — | Annex II |

Regulation (EC) No 1225/2009

This Regulation

Articles 1 to 4

Articles 1 to 4

Article 5(1) to (9)

Article 5(1) to (9)

Article 5(10), first sentence

Article 5(10), first subparagraph

Article 5(10), second and third sentence

Article 5(10), second subparagraph

Article 5(11) and (12)

Article 5(11) and (12)

Article 6(1), first and second sentence

Article 6(1), first subparagraph

Article 6(1), third sentence

Article 6(1), second subparagraph

Article 6(1), fourth sentence

Article 6(1), third subparagraph

Article 6(2)

Article 6(2)

Article 6(3), first sentence

Article 6(3), first subparagraph

Article 6(3), second sentence

Article 6(3), second subparagraph

Article 6(3), third sentence

Article 6(3), third subparagraph

Article 6(4), first sentence

Article 6(4), first subparagraph

Article 6(4), second sentence

Article 6(4), second subparagraph

Article 6(4), third sentence

Article 6(4), third subparagraph

Article 6(5)

Article 6(5)

Article 6(6), first sentence

Article 6(6), first subparagraph

Article 6(6), second sentence

Article 6(6), second subparagraph

Article 6(6), third sentence

Article 6(6), third subparagraph

Article 6(6), fourth sentence

Article 6(6), fourth subparagraph

Article 6(7), first sentence

Article 6(7), first subparagraph

Article 6(7), second sentence

Article 6(7), second subparagraph

Article 6(8) and (9)

Article 6(8) and (9)

Article 7(1), first sentence

Article 7(1), first subparagraph

Article 7(1), second sentence

Article 7(1), second subparagraph

Article 7(2) to (5)

Article 7(2) to (5)

Article 7(7)

Article 7(6)

Article 8(1), first sentence

Article 8(1), first subparagraph

Article 8(1), second sentence

Article 8(1), second subparagraph

Article 8(1), third sentence

Article 8(1), third subparagraph

Article 8(2), first and second sentence

Article 8(2), first subparagraph

Article 8(2), third and fourth sentence

Article 8(2), second subparagraph

Article 8(2), fifth sentence

Article 8(2), third subparagraph

Article 8(3), (4) and (5)

Article 8(3), (4) and (5)

Article 8(6), first and second sentence

Article 8(6), first subparagraph

Article 8(6), third sentence

Article 8(6), second subparagraph

Article 8(7) and (8)

Article 8(7) and (8)

Article 8(9), first subparagraph

Article 8(9), first subparagraph

Article 8(9), second subparagraph, first and second sentence

Article 8(9), second subparagraph

Article 8(9), second subparagraph, third sentence

Article 8(9), third subparagraph

Article 8(10)

Article 8(10)

Article 9(1), (2) and (3)

Article 9(1), (2) and (3)

Article 9(4), first sentence

Article 9(4), first subparagraph

Article 9(4), second sentence

Article 9(4), second subparagraph

Article 9(5)

Article 9(5)

Article 9(6), first sentence

Article 9(6), first subparagraph

Article 9(6), second sentence

Article 9(6), second subparagraph

Article 9(6), third sentence

Article 9(6), third subparagraph

Article 10(1)

Article 10(1)

Article 10(2), first sentence

Article 10(2), first subparagraph

Article 10(2), second and third sentence

Article 10(2), second subparagraph

Article 10(3)

Article 10(3)

Article 10(4), introductory wording

Article 10(4), introductory wording and points (a) and (b)

Article 10(4)(a)

Article 10(4)(c)

Article 10(4)(b)

Article 10(4)(d)

Article 10(5)

Article 10(5)

Article 11(1) to (4)

Article 11(1) to (4)

Article 11(5), first subparagraph, first sentence

Article 11(5), first subparagraph

Article 11(5), first subparagraph, second and third sentence

Article 11(5), second subparagraph

Article 11(5), first subparagraph, fourth sentence

Article 11(5), third subparagraph

Article 11(5), first subparagraph, fifth sentence

Article 11(5), fourth subparagraph

Article 11(5), second subparagraph

Article 11(5), fifth subparagraph

Article 11(5), third subparagraph

Article 11(5), sixth subparagraph

Article 11(6), first, second and third sentence

Article 11(6), first subparagraph

Article 11(6), fourth sentence

Article 11(6), second subparagraph

Article 11(6), fifth sentence

Article 11(6), third subparagraph

Article 11(7)

Article 11(7)

Article 11(8), first, second and third subparagraph

Article 11(8), first, second and third subparagraph

Article 11(8), fourth subparagraph, first and second sentence

Article 11(8), fourth subparagraph

Article 11(8), fourth subparagraph, third sentence

Article 11(8), fifth subparagraph

Article 11(8), fourth subparagraph, fourth sentence

Article 11(8), sixth subparagraph

Article 11(9) and (10)

Article 11(9) and (10)

Article 12

Article 12

Article 13(1), first subparagraph, first sentence

Article 13(1), first subparagraph

Article 13(1), first subparagraph, second sentence

Article 13(1), second subparagraph

Article 13(1), first subparagraph, third sentence

Article 13(1), third subparagraph

Article 13(1), second subparagraph

Article 13(1), fourth subparagraph

Article 13(2) and (3)

Article 13(2) and (3)

Article 13(4), first subparagraph, first sentence

Article 13(4), first subparagraph

Article 13(4), first subparagraph, second sentence

Article 13(4), second subparagraph

Article 13(4), first subparagraph, third sentence

Article 13(4), third subparagraph

Article 13(4), first subparagraph, fourth sentence

Article 13(4), fourth subparagraph

Article 13(4), second subparagraph

Article 13(4), fifth subparagraph

Article 13(4), third subparagraph

Article 13(4), sixth subparagraph

Article 13(4), fourth subparagraph

Article 13(4), seventh subparagraph

Article 13(5)

Article 13(5)

Article 14(1), first and second sentence

Article 14(1), first subparagraph

Article 14(1), third sentence

Article 14(1), second subparagraph

Article 14(2), first sentence

Article 14(2), first subparagraph

Article 14(2), second, third and fourth sentence

Article 14(2), second subparagraph

Article 14(3)

Article 14(3)

Article 14(4), first and second sentence

Article 14(4), first subparagraph

Article 14(4), third and fourth sentence

Article 14(4), second subparagraph

Article 14(5), (6) and (7)

Article 14(5), (6) and (7)

Articles 15 and 16

Articles 15 and 16

Article 17(1), (2) and (3)

Article 17(1), (2) and (3)

Article 17(4), first sentence

Article 17(4), first subparagraph

Article 17(4), second sentence

Article 17(4), second subparagraph

Article 18(1), first sentence

Article 18(1), first subparagraph

Article 18(1), second sentence

Article 18(1), second subparagraph

Article 18(1), third sentence

Article 18(1), third subparagraph

Article 18(2) to (6)

Article 18(2) to (6)

Article 19(1) to (5)

Article 19(1) to (5)

Article 19(6), first sentence

Article 19(6), first subparagraph

Article 19(6), second sentence

Article 19(6), second subparagraph

Article 20(1), (2) and (3)

Article 20(1), (2) and (3)

Article 20(4), first, second and third sentence

Article 20(4), first subparagraph

Article 20(4), fourth sentence

Article 20(4), second subparagraph

Article 20(5)

Article 20(5)

Articles 21 and 22

Articles 21 and 22

Article 22a

Article 23

Article 23

Article 24

Article 24

Article 25

Annex I

—

Annex II

—

—

Annex I

—

Annex II

---

| 30.6.2016 | EN | Official Journal of the European Union | L 176/55 |
| --- | --- | --- | --- |

30.6.2016

EN

Official Journal of the European Union

L 176/55

---

REGULATION (EU) 2016/1037 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 8 June 2016

on protection against subsidised imports from countries not members of the European Union

(codification)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

| (1) | Council Regulation (EC) No 597/2009 (3) has been substantially amended (4). In the interests of clarity and rationality, that Regulation should be codified. |
| --- | --- |

(1)

Council Regulation (EC) No 597/2009 (3) has been substantially amended (4). In the interests of clarity and rationality, that Regulation should be codified.

| (2) | Annex 1A to the Agreement establishing the World Trade Organisation (‘the WTO Agreement’) contains, inter alia, the General Agreement on Tariffs and Trade 1994 (‘the GATT 1994’), an Agreement on Agriculture (‘the Agreement on Agriculture’), an Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 and an Agreement on Subsidies and Countervailing Measures (‘the Subsidies Agreement’). |
| --- | --- |

(2)

Annex 1A to the Agreement establishing the World Trade Organisation (‘the WTO Agreement’) contains, inter alia, the General Agreement on Tariffs and Trade 1994 (‘the GATT 1994’), an Agreement on Agriculture (‘the Agreement on Agriculture’), an Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 and an Agreement on Subsidies and Countervailing Measures (‘the Subsidies Agreement’).

| (3) | In order to ensure a proper and transparent application of the rules provided for in the Subsidies Agreement, the language of that agreement should be reflected in Union legislation to the best extent possible. |
| --- | --- |

(3)

In order to ensure a proper and transparent application of the rules provided for in the Subsidies Agreement, the language of that agreement should be reflected in Union legislation to the best extent possible.

| (4) | Furthermore, it is appropriate to explain, in adequate detail, when a subsidy is to be deemed to exist, according to which principles it is to 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. |
| --- | --- |

(4)

Furthermore, it is appropriate to explain, in adequate detail, when a subsidy is to be deemed to exist, according to which principles it is to 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.

| (5) | In determining the existence of a subsidy, it is necessary to demonstrate that there has been a financial contribution by a government or a 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. |
| --- | --- |

(5)

In determining the existence of a subsidy, it is necessary to demonstrate that there has been a financial contribution by a government or a 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.

| (6) | For the calculation of the benefit to the recipient in cases where a market benchmark does not exist in the country concerned, the benchmark should be determined by adjusting the terms and conditions prevailing in the country concerned on the basis of actual factors available in that country. If this is not practicable because, inter alia, such prices or costs do not exist or are unreliable, then the appropriate benchmark should be determined by resorting to terms and conditions in other markets. |
| --- | --- |

(6)

For the calculation of the benefit to the recipient in cases where a market benchmark does not exist in the country concerned, the benchmark should be determined by adjusting the terms and conditions prevailing in the country concerned on the basis of actual factors available in that country. If this is not practicable because, inter alia, such prices or costs do not exist or are unreliable, then the appropriate benchmark should be determined by resorting to terms and conditions in other markets.

| (7) | It is desirable to set out clear and detailed guidance as to the factors which may be relevant for the determination of whether the subsidised imports have caused material injury or are threatening to cause injury. In demonstrating that the volume and price levels of the imports concerned are responsible for injury sustained by a Union industry, attention should be given to the effect of other factors and in particular prevailing market conditions in the Union. |
| --- | --- |

(7)

It is desirable to set out clear and detailed guidance as to the factors which may be relevant for the determination of whether the subsidised imports have caused material injury or are threatening to cause injury. In demonstrating that the volume and price levels of the imports concerned are responsible for injury sustained by a Union industry, attention should be given to the effect of other factors and in particular prevailing market conditions in the Union.

| (8) | It is advisable to define the term ‘Union industry’ and to provide that parties related to exporters may be excluded from such an industry, and to define the term ‘related’. It is also necessary to provide for countervailing duty action to be taken on behalf of producers in a region of the Union and to set out guidelines on the definition of such a region. |
| --- | --- |

(8)

It is advisable to define the term ‘Union industry’ and to provide that parties related to exporters may be excluded from such an industry, and to define the term ‘related’. It is also necessary to provide for countervailing duty action to be taken on behalf of producers in a region of the Union and to set out guidelines on the definition of such a region.

| (9) | It is necessary to specify who may lodge a countervailing duty complaint, including the extent to which it should be supported by the Union industry, and the information on countervailable subsidies, injury and causation which such a complaint should contain. It is also expedient to specify the procedures for the rejection of complaints or the initiation of proceedings. |
| --- | --- |

(9)

It is necessary to specify who may lodge a countervailing duty complaint, including the extent to which it should be supported by the Union industry, and the information on countervailable subsidies, injury and causation which such a complaint should contain. It is also expedient to specify the procedures for the rejection of complaints or the initiation of proceedings.

| (10) | It is necessary to specify the manner in which interested parties should be given notice of the information which the authorities require. Interested parties should have ample opportunity to present all relevant evidence and to defend their interests. 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. 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. There should also be cooperation between the Member States and the Commission in the collection of information. |
| --- | --- |

(10)

It is necessary to specify the manner in which interested parties should be given notice of the information which the authorities require. Interested parties should have ample opportunity to present all relevant evidence and to defend their interests. 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. 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. There should also be cooperation between the Member States and the Commission in the collection of information.

| (11) | It is necessary to set out the conditions under which provisional duties may be imposed, including conditions whereby provisional duties may be imposed no earlier than 60 days from initiation and no later than nine months thereafter. Such duties may in all cases be imposed by the Commission only for a four-month period. |
| --- | --- |

(11)

It is necessary to set out the conditions under which provisional duties may be imposed, including conditions whereby provisional duties may be imposed no earlier than 60 days from initiation and no later than nine months thereafter. Such duties may in all cases be imposed by the Commission only for a four-month period.

| (12) | It is necessary to set out procedures for accepting undertakings which eliminate or offset the countervailable subsidies and injury instead of imposing provisional or definitive duties. It is also appropriate to specify the consequences of a 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. In accepting undertakings, care should be taken that the proposed undertakings, and their enforcement, do not lead to anti-competitive behaviour. |
| --- | --- |

(12)

It is necessary to set out procedures for accepting undertakings which eliminate or offset the countervailable subsidies and injury instead of imposing provisional or definitive duties. It is also appropriate to specify the consequences of a 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. In accepting undertakings, care should be taken that the proposed undertakings, and their enforcement, do not lead to anti-competitive behaviour.

| (13) | It is appropriate to allow withdrawal of an undertaking and application of the duty by one single legal act. It is also necessary to ensure that the withdrawal procedure is terminated within a time limit of normally six months and in no case more than nine months in order to ensure the proper enforcement of the measure in force. |
| --- | --- |

(13)

It is appropriate to allow withdrawal of an undertaking and application of the duty by one single legal act. It is also necessary to ensure that the withdrawal procedure is terminated within a time limit of normally six months and in no case more than nine months in order to ensure the proper enforcement of the measure in force.

| (14) | 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 more than 13 months, of the initiation of the investigation. |
| --- | --- |

(14)

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 more than 13 months, of the initiation of the investigation.

| (15) | Investigations or proceedings should be terminated where the amount of the subsidy is de minimis or, particularly in the case of imports originating in developing countries, the volume of subsidised imports or the injury is negligible, and it is appropriate to define those situations. Where measures are to be imposed, it is necessary to provide for the termination of investigations and to specify 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. |
| --- | --- |

(15)

Investigations or proceedings should be terminated where the amount of the subsidy is de minimis or, particularly in the case of imports originating in developing countries, the volume of subsidised imports or the injury is negligible, and it is appropriate to define those situations. Where measures are to be imposed, it is necessary to provide for the termination of investigations and to specify 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.

| (16) | It is necessary to provide for retroactive collection of provisional duties if that is deemed appropriate and to define the circumstances which may trigger the retroactive application of duties to avoid the undermining of the definitive measures to be applied. It is also necessary to provide that duties may be applied retroactively in cases of breach or withdrawal of undertakings. |
| --- | --- |

(16)

It is necessary to provide for retroactive collection of provisional duties if that is deemed appropriate and to define the circumstances which may trigger the retroactive application of duties to avoid the undermining of the definitive measures to be applied. It is also necessary to provide that duties may be applied retroactively in cases of breach or withdrawal of undertakings.

| (17) | It is necessary to provide that measures are to lapse after five years unless a review indicates that they should be maintained. 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. |
| --- | --- |

(17)

It is necessary to provide that measures are to lapse after five years unless a review indicates that they should be maintained. 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.

| (18) | 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. It is appropriate, therefore, to provide for an anti-circumvention provision in this Regulation. |
| --- | --- |

(18)

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. It is appropriate, therefore, to provide for an anti-circumvention provision in this Regulation.

| (19) | It is desirable to clarify which parties have the right to request the initiation of anti-circumvention investigations. |
| --- | --- |

(19)

It is desirable to clarify which parties have the right to request the initiation of anti-circumvention investigations.

| (20) | It is also desirable to clarify which practices constitute circumvention of the measures in place. Circumvention practices may take place either inside or outside the Union. It is consequently necessary to provide that exemptions from the extended duties which may be granted to importers may also be granted to exporters when duties are being applied to address circumvention taking place outside the Union. |
| --- | --- |

(20)

It is also desirable to clarify which practices constitute circumvention of the measures in place. Circumvention practices may take place either inside or outside the Union. It is consequently necessary to provide that exemptions from the extended duties which may be granted to importers may also be granted to exporters when duties are being applied to address circumvention taking place outside the Union.

| (21) | 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. |
| --- | --- |

(21)

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.

| (22) | 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. |
| --- | --- |

(22)

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.

| (23) | In order to ensure the proper enforcement of measures, it is necessary that Member States monitor, and report to the Commission on, the import trade of products subject to investigation or subject to measures, as well as the amount of duties collected under this Regulation. It is also necessary to provide for the possibility for the Commission to request Member States to supply, subject to confidentiality rules, information to be used for monitoring price undertakings and verifying the level of effectiveness of the measures in force. |
| --- | --- |

(23)

In order to ensure the proper enforcement of measures, it is necessary that Member States monitor, and report to the Commission on, the import trade of products subject to investigation or subject to measures, as well as the amount of duties collected under this Regulation. It is also necessary to provide for the possibility for the Commission to request Member States to supply, subject to confidentiality rules, information to be used for monitoring price undertakings and verifying the level of effectiveness of the measures in force.

| (24) | 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. |
| --- | --- |

(24)

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.

| (25) | 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. |
| --- | --- |

(25)

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.

| (26) | 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. |
| --- | --- |

(26)

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.

| (27) | Provision should be made for the treatment of confidential information so that business or governmental secrets are not divulged. |
| --- | --- |

(27)

Provision should be made for the treatment of confidential information so that business or governmental secrets are not divulged.

| (28) | It is essential that provision be made for proper disclosure of the 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 Union, within a time –limit which permits parties to defend their interests. |
| --- | --- |

(28)

It is essential that provision be made for proper disclosure of the 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 Union, within a time –limit which permits parties to defend their interests.

| (29) | It is prudent to provide for an administrative system under which arguments can be presented as to whether measures are in the Union's interest, including consumers' interests, and to specify the time –limits within which such information has to be presented, together with the disclosure rights of the parties concerned. |
| --- | --- |

(29)

It is prudent to provide for an administrative system under which arguments can be presented as to whether measures are in the Union's interest, including consumers' interests, and to specify the time –limits within which such information has to be presented, together with the disclosure rights of the parties concerned.

| (30) | In applying the rules of the Subsidies Agreement it is essential, in order to maintain the balance of rights and obligations which that agreement seeks to establish, that the Union take account of the interpretation of those rights and obligations by the Union's major trading partners, as reflected in legislation or established practice. |
| --- | --- |

(30)

In applying the rules of the Subsidies Agreement it is essential, in order to maintain the balance of rights and obligations which that agreement seeks to establish, that the Union take account of the interpretation of those rights and obligations by the Union's major trading partners, as reflected in legislation or established practice.

| (31) | The implementation of this Regulation requires uniform conditions for adopting provisional and definitive duties, and for the termination of an investigation without measures. Those measures should be adopted by the Commission in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (5). |
| --- | --- |

(31)

The implementation of this Regulation requires uniform conditions for adopting provisional and definitive duties, and for the termination of an investigation without measures. Those measures should be adopted by the Commission in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (5).

| (32) | The advisory procedure should be used for the adoption of provisional measures given the effects of such measures and their sequential logic in relation to the adoption of definitive measures. It should also be used for the acceptance of undertakings, initiation and non-initiation of expiry reviews, suspension of measures, extension of the suspension of measures and the reinstatement of measures given the effect of such measures as compared to definitive measures. Where a delay in the imposition of measures would cause injury which would be difficult to repair, it is necessary to allow the Commission to adopt immediately applicable provisional measures, |
| --- | --- |

(32)

The advisory procedure should be used for the adoption of provisional measures given the effects of such measures and their sequential logic in relation to the adoption of definitive measures. It should also be used for the acceptance of undertakings, initiation and non-initiation of expiry reviews, suspension of measures, extension of the suspension of measures and the reinstatement of measures given the effect of such measures as compared to definitive measures. Where a delay in the imposition of measures would cause injury which would be difficult to repair, it is necessary to allow the Commission to adopt immediately applicable provisional measures,

HAVE ADOPTED THIS REGULATION:

Article 1

Principles

1.   A countervailing duty may be imposed to offset any subsidy granted, directly or indirectly, for the manufacture, production, export or transport of any product whose release for free circulation in the Union causes injury.

2.   Notwithstanding paragraph 1, where products are not directly imported from the country of origin but are exported to the Union from an intermediate country, the provisions of this Regulation shall be fully applicable and the transaction or transactions shall, where appropriate, be regarded as having taken place between the country of origin and the Union.

Article 2

Definitions

For the purposes of this Regulation:

| (a) | a product is considered to be subsidised if it benefits from a countervailable subsidy as defined in Articles 3 and 4. Such subsidy may be granted by the government of the country of origin of the imported product, or by the government of an intermediate country from which the product is exported to the Union, known for the purposes of this Regulation as ‘the country of export’; |
| --- | --- |

(a)

a product is considered to be subsidised if it benefits from a countervailable subsidy as defined in Articles 3 and 4. Such subsidy may be granted by the government of the country of origin of the imported product, or by the government of an intermediate country from which the product is exported to the Union, known for the purposes of this Regulation as ‘the country of export’;

| (b) | ‘government’ means a government or any public body within the territory of the country of origin or export; |
| --- | --- |

(b)

‘government’ means a government or any public body within the territory of the country of origin or export;

| (c) | ‘like product’ means a product which is identical, that is to say, alike in all respects, to the product under consideration, or, in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration; |
| --- | --- |

(c)

‘like product’ means a product which is identical, that is to say, alike in all respects, to the product under consideration, or, in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration;

| (d) | ‘injury’, unless otherwise specified, means material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry, and shall be interpreted in accordance with the provisions of Article 8. |
| --- | --- |

(d)

‘injury’, unless otherwise specified, means material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry, and shall be interpreted in accordance with the provisions of Article 8.

Article 3

Definition of a subsidy

A subsidy shall be deemed to exist if:

| 1. | (a) | there is a financial contribution by a government in the country of origin or export, that is to say, where:






  (i) | a government practice involves a direct transfer of funds (for example, grants, loans, equity infusion), potential direct transfers of funds or liabilities (for example, loan guarantees); |
| --- | --- | --- | --- |

1.

(a)

there is a financial contribution by a government in the country of origin or export, that is to say, where:

(i)

a government practice involves a direct transfer of funds (for example, grants, loans, equity infusion), potential direct transfers of funds or liabilities (for example, loan guarantees);

| (ii) | government revenue that is otherwise due is forgone or not collected (for example, fiscal incentives such as tax credits). In this regard, the exemption of an exported product from duties or taxes borne by the like product when destined for domestic consumption, or the remission of such duties or taxes in amounts not in excess of those which have been accrued, shall not be deemed to be a subsidy, provided that such an exemption is granted in accordance with the provisions of Annexes I, II and III; |
| --- | --- |

(ii)

government revenue that is otherwise due is forgone or not collected (for example, fiscal incentives such as tax credits). In this regard, the exemption of an exported product from duties or taxes borne by the like product when destined for domestic consumption, or the remission of such duties or taxes in amounts not in excess of those which have been accrued, shall not be deemed to be a subsidy, provided that such an exemption is granted in accordance with the provisions of Annexes I, II and III;

| (iii) | a government provides goods or services other than general infrastructure, or purchases goods; |
| --- | --- |

(iii)

a government provides goods or services other than general infrastructure, or purchases goods;

| (iv) | a government:






  — | makes payments to a funding mechanism, or |
| --- | --- | --- |

(iv)

a government:

—

makes payments to a funding mechanism, or

| — | entrusts or directs a private body to carry out one or more of the type of functions illustrated in points (i), (ii) and (iii) which would normally be vested in the government, and the practice, in no real sense, differs from practices normally followed by governments; |
| --- | --- |

—

entrusts or directs a private body to carry out one or more of the type of functions illustrated in points (i), (ii) and (iii) which would normally be vested in the government, and the practice, in no real sense, differs from practices normally followed by governments;

or

| (b) | there is any form of income or price support within the meaning of Article XVI of the GATT 1994; and |
| --- | --- |

(b)

there is any form of income or price support within the meaning of Article XVI of the GATT 1994; and

| 2. | a benefit is thereby conferred. |
| --- | --- |

2.

a benefit is thereby conferred.

Article 4

Countervailable subsidies

1.   Subsidies shall be subject to countervailing measures only if they are specific, as defined in paragraphs 2, 3 and 4.

2.   In order to determine whether a subsidy is specific to an enterprise or industry or group of enterprises or industries (‘certain enterprises’) within the jurisdiction of the granting authority, the following principles shall apply:

| (a) | where the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises, such a subsidy shall be specific; |
| --- | --- |

(a)

where the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises, such a subsidy shall be specific;

| (b) | where the granting authority, or the legislation pursuant to which the granting authority operates, establishes objective criteria or conditions governing the eligibility for, and the amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to; |
| --- | --- |

(b)

where the granting authority, or the legislation pursuant to which the granting authority operates, establishes objective criteria or conditions governing the eligibility for, and the amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to;

| (c) | if, notwithstanding any appearance of non-specificity resulting from the application of the principles laid down in points (a) and (b), there are reasons to believe that the subsidy may in fact be specific, other factors may be considered. Such factors are: use of a subsidy programme by a limited number of certain enterprises; predominant use by certain enterprises; the granting of disproportionately large amounts of subsidy to certain enterprises; the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy. In this regard, information on the frequency with which applications for a subsidy are refused or approved and the reasons for such decisions shall, in particular, be considered. |
| --- | --- |

(c)

if, notwithstanding any appearance of non-specificity resulting from the application of the principles laid down in points (a) and (b), there are reasons to believe that the subsidy may in fact be specific, other factors may be considered. Such factors are: use of a subsidy programme by a limited number of certain enterprises; predominant use by certain enterprises; the granting of disproportionately large amounts of subsidy to certain enterprises; the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy. In this regard, information on the frequency with which applications for a subsidy are refused or approved and the reasons for such decisions shall, in particular, be considered.

For the purpose of point (b), ‘objective criteria or conditions’ means criteria or conditions which are neutral, which do not favour certain enterprises over others, and which are economic in nature and horizontal in application, such as number of employees or size of enterprise.

The criteria or conditions must be clearly set out by law, regulation, or other official document, so as to be capable of verification.

In applying point (c) of the first subparagraph, account shall be taken of the extent of diversification of economic activities within the jurisdiction of the granting authority, as well as of the length of time during which the subsidy programme has been in operation.

3.   A subsidy which is limited to certain enterprises located within a designated geographical region within the jurisdiction of the granting authority shall be specific. The setting or changing of generally applicable tax rates by all levels of government entitled to do so shall not be deemed to be a specific subsidy for the purposes of this Regulation.

4.   Notwithstanding paragraphs 2 and 3, the following subsidies shall be deemed to be specific:

| (a) | subsidies contingent, in law or in fact, whether solely or as one of several other conditions, upon export performance, including those illustrated in Annex I; |
| --- | --- |

(a)

subsidies contingent, in law or in fact, whether solely or as one of several other conditions, upon export performance, including those illustrated in Annex I;

| (b) | subsidies contingent, whether solely or as one of several other conditions, upon the use of domestic over imported goods. |
| --- | --- |

(b)

subsidies contingent, whether solely or as one of several other conditions, upon the use of domestic over imported goods.

For the purposes of point (a), subsidies shall be considered to be contingent in fact upon export performance when the facts demonstrate that the granting of a subsidy, without having been made legally contingent upon export performance, is in fact tied to actual or anticipated exportation or export earnings. The mere fact that a subsidy is accorded to enterprises which export shall not, for that reason alone, be considered to be an export subsidy within the meaning of this provision.

5.   Any determination of specificity under the provisions of this Article shall be clearly substantiated on the basis of positive evidence.

Article 5

Calculation of the amount of the countervailable subsidy

The amount of countervailable subsidies shall be calculated in terms of the benefit conferred on the recipient which is found to exist during the investigation period for subsidisation. Normally this period shall be the most recent accounting year of the beneficiary, but may be any other period of at least six months prior to the initiation of the investigation for which reliable financial and other relevant data are available.

Article 6

Calculation of benefit to the recipient

As regards the calculation of benefit to the recipient, the following rules shall apply:

| (a) | government provision of equity capital shall not be considered to confer a benefit, unless the investment can be regarded as inconsistent with the usual investment practice, including for the provision of risk capital, of private investors in the territory of the country of origin and/or export; |
| --- | --- |

(a)

government provision of equity capital shall not be considered to confer a benefit, unless the investment can be regarded as inconsistent with the usual investment practice, including for the provision of risk capital, of private investors in the territory of the country of origin and/or export;

| (b) | a loan by a government shall not be considered to confer a benefit, unless there is a difference between the amount that the firm receiving the loan pays on the government loan and the amount that the firm would pay for a comparable commercial loan which the firm could actually obtain on the market. In that event the benefit shall be the difference between those two amounts; |
| --- | --- |

(b)

a loan by a government shall not be considered to confer a benefit, unless there is a difference between the amount that the firm receiving the loan pays on the government loan and the amount that the firm would pay for a comparable commercial loan which the firm could actually obtain on the market. In that event the benefit shall be the difference between those two amounts;

| (c) | a loan guarantee by a government shall not be considered to confer a benefit, unless there is a difference between the amount that the firm receiving the guarantee pays on a loan guaranteed by the government and the amount that the firm would pay for a comparable commercial loan in the absence of the government guarantee. In that case the benefit shall be the difference between those two amounts, adjusted for any differences in fees; |
| --- | --- |

(c)

a loan guarantee by a government shall not be considered to confer a benefit, unless there is a difference between the amount that the firm receiving the guarantee pays on a loan guaranteed by the government and the amount that the firm would pay for a comparable commercial loan in the absence of the government guarantee. In that case the benefit shall be the difference between those two amounts, adjusted for any differences in fees;

| (d) | the provision of goods or services or purchase of goods by a government shall not be considered to confer a benefit, unless the provision is made for less than adequate remuneration or the purchase is made for more than adequate remuneration. The adequacy of remuneration shall be determined in relation to prevailing market conditions for the product or service in question in the country of provision or purchase, including price, quality, availability, marketability, transportation and other conditions of purchase or sale.
  If there are no such prevailing market terms and conditions for the product or service in question in the country of provision or purchase which can be used as appropriate benchmarks, the following rules shall apply:






  (i) | the terms and conditions prevailing in the country concerned shall be adjusted, on the basis of actual costs, prices and other factors available in that country, by an appropriate amount which reflects normal market terms and conditions; or |
| --- | --- | --- |

(d)

the provision of goods or services or purchase of goods by a government shall not be considered to confer a benefit, unless the provision is made for less than adequate remuneration or the purchase is made for more than adequate remuneration. The adequacy of remuneration shall be determined in relation to prevailing market conditions for the product or service in question in the country of provision or purchase, including price, quality, availability, marketability, transportation and other conditions of purchase or sale.

If there are no such prevailing market terms and conditions for the product or service in question in the country of provision or purchase which can be used as appropriate benchmarks, the following rules shall apply:

(i)

the terms and conditions prevailing in the country concerned shall be adjusted, on the basis of actual costs, prices and other factors available in that country, by an appropriate amount which reflects normal market terms and conditions; or

| (ii) | when appropriate, the terms and conditions prevailing in the market of another country or on the world market which are available to the recipient shall be used. |
| --- | --- |

(ii)

when appropriate, the terms and conditions prevailing in the market of another country or on the world market which are available to the recipient shall be used.

Article 7

General provisions on calculation

1.   The amount of the countervailable subsidies shall be determined per unit of the subsidised product exported to the Union.

In establishing that amount, the following elements may be deducted from the total subsidy:

| (a) | any application fee or other costs necessarily incurred in order to qualify for, or to obtain, the subsidy; |
| --- | --- |

(a)

any application fee or other costs necessarily incurred in order to qualify for, or to obtain, the subsidy;

| (b) | export taxes, duties or other charges levied on the export of the product to the Union specifically intended to offset the subsidy. |
| --- | --- |

(b)

export taxes, duties or other charges levied on the export of the product to the Union specifically intended to offset the subsidy.

Where an interested party claims a deduction, it must prove that the claim is justified.

2.   Where the subsidy is not granted by reference to the quantities manufactured, produced, exported or transported, the amount of countervailable subsidy shall be determined by allocating the value of the total subsidy, as appropriate, over the level of production, sales or exports of the products concerned during the investigation period for subsidisation.

3.   Where the subsidy can be linked to the acquisition or future acquisition of fixed assets, the amount of the countervailable subsidy shall be calculated by spreading the subsidy across a period which reflects the normal depreciation of such assets in the industry concerned.

The amount so calculated which is attributable to the investigation period, including that which derives from fixed assets acquired before that period, shall be allocated as described in paragraph 2.

Where the assets are non-depreciating, the subsidy shall be valued as an interest-free loan, and be treated in accordance with Article 6(b).

4.   Where a subsidy cannot be linked to the acquisition of fixed assets, the amount of the benefit received during the investigation period shall in principle be attributed to that period, and allocated as described in paragraph 2, unless special circumstances arise justifying attribution over a different period.

Article 8

Determination of injury

1.   A determination of injury shall be based on positive evidence and shall involve an objective examination of:

| (a) | the volume of the subsidised imports and the effect of the subsidised imports on prices in the Union market for like products; and |
| --- | --- |

(a)

the volume of the subsidised imports and the effect of the subsidised imports on prices in the Union market for like products; and

| (b) | the consequent impact of those imports on the Union industry. |
| --- | --- |

(b)

the consequent impact of those imports on the Union industry.

2.   With regard to the volume of the subsidised imports, consideration shall be given to whether there has been a significant increase in subsidised imports, either in absolute terms or relative to production or consumption in the Union. With regard to the effect of the subsidised imports on prices, consideration shall be given to whether there has been significant price undercutting by the subsidised imports as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.

3.   Where imports of a product from more than one country are simultaneously subject to countervailing duty investigations, the effects of such imports shall be cumulatively assessed only if it is determined that:

| (a) | the amount of countervailable subsidies established in relation to the imports from each country is more than de minimis as defined in Article 14(5) and the volume of imports from each country is not negligible; and |
| --- | --- |

(a)

the amount of countervailable subsidies established in relation to the imports from each country is more than de minimis as defined in Article 14(5) and the volume of imports from each country is not negligible; and

| (b) | a cumulative assessment of the effects of the imports is appropriate in the light of the conditions of competition between imported products and the conditions of competition between the imported products and the like Union product. |
| --- | --- |

(b)

a cumulative assessment of the effects of the imports is appropriate in the light of the conditions of competition between imported products and the conditions of competition between the imported products and the like Union product.

4.   The examination of the impact of the subsidised imports on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past subsidisation or dumping; the magnitude of the amount of countervailable subsidies; actual and potential decline in sales, profits, output, market share, productivity, return on investments and utilisation of capacity; factors affecting Union prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments and, in the case of agriculture, whether there has been an increased burden on government support programmes. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.

5.   It must be demonstrated, from all the relevant evidence presented in relation to paragraph 1, that the subsidised imports are causing injury. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph 2 are responsible for an impact on the Union industry as provided for in paragraph 4, and that that impact exists to a degree which enables it to be classified as material.

6.   Known factors, other than the subsidised imports, which are injuring the Union industry at the same time shall also be examined to ensure that the injury caused by those other factors is not attributed to the subsidised imports pursuant to paragraph 5. Factors which may be considered in that respect shall include: the volume and prices of non-subsidised imports; contraction in demand or changes in the patterns of consumption; restrictive trade practices of, and competition between, third-country and Union producers; developments in technology; and the export performance and productivity of the Union industry.

7.   The effect of the subsidised imports shall be assessed in relation to the production of the Union industry of the like product when available data permit the separate identification of that production on the basis of criteria such as the production process, producers' sales and profits. If such separate identification of that production is not possible, the effects of the subsidised imports shall be assessed by examination of the production of the narrowest group or range of products, including the like product, for which the necessary information can be provided.

8.   A determination of a threat of material injury shall be based on facts and not merely on allegations, conjecture or remote possibility. The change in circumstances which would create a situation in which the subsidy would cause injury must have been clearly foreseen and must be imminent.

In making a determination regarding the existence of a threat of material injury, consideration should be given to factors such as:

| (a) | the nature of the subsidy or subsidies in question and the trade effects likely to arise therefrom; |
| --- | --- |

(a)

the nature of the subsidy or subsidies in question and the trade effects likely to arise therefrom;

| (b) | a significant rate of increase of subsidised imports into the Union market indicating the likelihood of substantially increased imports; |
| --- | --- |

(b)

a significant rate of increase of subsidised imports into the Union market indicating the likelihood of substantially increased imports;

| (c) | whether there is sufficient freely disposable capacity on the part of the exporter or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased subsidised exports to the Union, account being taken of the availability of other export markets to absorb any additional exports; |
| --- | --- |

(c)

whether there is sufficient freely disposable capacity on the part of the exporter or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased subsidised exports to the Union, account being taken of the availability of other export markets to absorb any additional exports;

| (d) | whether imports are entering at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further imports; |
| --- | --- |

(d)

whether imports are entering at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further imports;

| (e) | inventories of the product being investigated. |
| --- | --- |

(e)

inventories of the product being investigated.

No one of the factors listed above by itself can necessarily give decisive guidance, but the totality of the factors considered shall be such as to lead to the conclusion that further subsidised exports are imminent and that, unless protective action is taken, material injury will occur.

Article 9

Definition of Union industry

1.   For the purposes of this Regulation, the term ‘Union industry’ shall be interpreted as referring to the Union producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 10(6), of the total Union production of those products, except that:

| (a) | when producers are related to the exporters or importers, or are themselves importers of the allegedly subsidised product, the term ‘Union industry’ may be interpreted as referring to the rest of the producers; |
| --- | --- |

(a)

when producers are related to the exporters or importers, or are themselves importers of the allegedly subsidised product, the term ‘Union industry’ may be interpreted as referring to the rest of the producers;

| (b) | in exceptional circumstances, the territory of the Union may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if:






  (i) | the producers within such a market sell all or almost all of their production of the product in question in that market; and |
| --- | --- | --- |

(b)

in exceptional circumstances, the territory of the Union may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if:

(i)

the producers within such a market sell all or almost all of their production of the product in question in that market; and

| (ii) | the demand in that market is not to any substantial degree met by producers of the product in question located elsewhere in the Union.
  In such circumstances, injury may be found to exist even where a major portion of the total Union industry is not injured, provided that there is a concentration of subsidised imports into such an isolated market and provided further that the subsidised imports are causing injury to the producers of all or almost all of the production within such a market. |
| --- | --- |

(ii)

the demand in that market is not to any substantial degree met by producers of the product in question located elsewhere in the Union.

In such circumstances, injury may be found to exist even where a major portion of the total Union industry is not injured, provided that there is a concentration of subsidised imports into such an isolated market and provided further that the subsidised imports are causing injury to the producers of all or almost all of the production within such a market.

2.   For the purpose of paragraph 1, producers shall be considered to be related to exporters or importers only if:

| (a) | one of them directly or indirectly controls the other; |
| --- | --- |

(a)

one of them directly or indirectly controls the other;

| (b) | both of them are directly or indirectly controlled by a third person; or |
| --- | --- |

(b)

both of them are directly or indirectly controlled by a third person; or

| (c) | together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers. |
| --- | --- |

(c)

together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers.

For the purpose of this paragraph, one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter.

3.   Where the Union industry has been interpreted as referring to the producers in a certain region, the exporters or the government granting countervailable subsidies shall be given an opportunity to offer undertakings pursuant to Article 13 in respect of the region concerned. In such cases, when evaluating the Union interest of the measures, special account shall be taken of the interest of the region. If an adequate undertaking is not offered promptly or if the situations set out in Article 13(9) and (10) apply, a provisional or definitive countervailing duty may be imposed in respect of the Union as a whole. In such cases the duties may, if practicable, be limited to specific producers or exporters.

4.   The provisions of Article 8(7) shall be applicable to this Article.

Article 10

Initiation of proceedings

1.   Except as provided for in paragraph 8, an investigation to determine the existence, degree and effect of any alleged subsidy shall be initiated upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of the Union industry.

The complaint may be submitted to the Commission or to a Member State, which shall forward it to the Commission. The Commission shall send Member States a copy of any complaint it receives. The complaint shall be deemed to have been lodged on the first working day following its delivery to the Commission by registered mail or the issuing of an acknowledgement of receipt by the Commission.

Where, in the absence of any complaint, a Member State is in possession of sufficient evidence of subsidisation and of resultant injury to the Union industry, it shall immediately communicate such evidence to the Commission.

2.   A complaint under paragraph 1 shall include sufficient evidence of the existence of countervailable subsidies (including, if possible, of their amount), injury and a causal link between the allegedly subsidised imports and the alleged injury. The complaint shall contain such information as is reasonably available to the complainant on the following:

| (a) | the identity of the complainant and a description of the volume and value of the Union production of the like product by the complainant. Where a written complaint is made on behalf of the Union industry, the complaint shall identify the industry on behalf of which the complaint is made by a list of all known Union producers of the like product (or associations of Union producers of the like product) and, to the extent possible, a description of the volume and value of Union production of the like product accounted for by such producers; |
| --- | --- |

(a)

the identity of the complainant and a description of the volume and value of the Union production of the like product by the complainant. Where a written complaint is made on behalf of the Union industry, the complaint shall identify the industry on behalf of which the complaint is made by a list of all known Union producers of the like product (or associations of Union producers of the like product) and, to the extent possible, a description of the volume and value of Union production of the like product accounted for by such producers;

| (b) | a complete description of the allegedly subsidised product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question; |
| --- | --- |

(b)

a complete description of the allegedly subsidised product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question;

| (c) | evidence with regard to the existence, amount, nature and countervailability of the subsidies in question; |
| --- | --- |

(c)

evidence with regard to the existence, amount, nature and countervailability of the subsidies in question;

| (d) | the changes in the volume of the allegedly subsidised imports, the effect of those imports on prices of the like product in the Union market and the consequent impact of the imports on the Union industry, as demonstrated by relevant factors and indices having a bearing on the state of the Union industry, such as those listed in Article 8(2) and (4). |
| --- | --- |

(d)

the changes in the volume of the allegedly subsidised imports, the effect of those imports on prices of the like product in the Union market and the consequent impact of the imports on the Union industry, as demonstrated by relevant factors and indices having a bearing on the state of the Union industry, such as those listed in Article 8(2) and (4).

3.   The Commission shall, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation.

4.   An investigation may be initiated in order to determine whether or not the alleged subsidies are ‘specific’ within the meaning of Article 4(2) and (3).

5.   An investigation may also be initiated in respect of measures of the type listed in Annex IV, to the extent that they contain an element of subsidy as defined by Article 3, in order to determine whether the measures in question fully conform to the provisions of that Annex.

6.   An investigation shall not be initiated pursuant to paragraph 1 unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by Union producers of the like product, that the complaint has been made by, or on behalf of, the Union industry. The complaint shall be considered to have been made by, or on behalf of, the Union industry if it is supported by those Union producers whose collective output constitutes more than 50 % of the total production of the like product produced by that portion of the Union industry expressing either support for or opposition to the complaint. However, no investigation shall be initiated where Union producers expressly supporting the complaint account for less than 25 % of total production of the like product produced by the Union industry.

7.   The authorities shall avoid, unless a decision has been taken to initiate an investigation, any publicising of the complaint seeking the initiation of an investigation. However, as soon as possible after receipt of a properly documented complaint pursuant to this Article, and in any event before the initiation of an investigation, the Commission shall notify the country of origin and/or export concerned, which shall be invited for consultations with the aim of clarifying the situation as to matters referred to in paragraph 2 and arriving at a mutually agreed solution.

8.   If, in special circumstances, the Commission decides to initiate an investigation without having received a written complaint by, or on behalf of, the Union industry for the initiation of such an investigation, this shall be done on the basis of sufficient evidence of the existence of countervailable subsidies, injury and causal link, as described in paragraph 2, to justify such initiation. The Commission shall provide information to the Member States once it has determined the need to initiate such an investigation.

9.   The evidence of both subsidies and injury shall be considered simultaneously in the decision on whether or not to initiate an investigation. A complaint shall be rejected where there is insufficient evidence of either countervailable subsidies or of injury to justify proceeding with the case. Proceedings shall not be initiated against countries whose imports represent a market share of below 1 %, unless such countries collectively account for 3 % or more of Union consumption.

10.   The complaint may be withdrawn prior to initiation, in which case it shall be considered not to have been lodged.

11.   Where it is apparent that there is sufficient evidence to justify initiating proceedings, the Commission shall do so within 45 days of the date on which the complaint was lodged and shall publish a notice in the Official Journal of the European Union. Where insufficient evidence has been presented, the complainant shall be so informed within 45 days of the date on which the complaint is lodged with the Commission. The Commission shall provide information to the Member States concerning its analysis of the complaint normally within 21 days of the date on which the complaint is lodged with the Commission.

12.   The notice of initiation of the proceedings shall announce the initiation of an investigation, indicate the product and 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 periods within which interested parties may make themselves known, present their views in writing and submit information, if such views and information are to be taken into account during the investigation. It shall also state the period within which interested parties may apply to be heard by the Commission in accordance with Article 11(5).

13.   The Commission shall advise the exporters, importers and representative associations of importers or exporters known to it to be concerned, as well as the country of origin and/or export and the complainants, of the initiation of the proceedings and, with due regard to the protection of confidential information, provide the full text of the written complaint referred to in paragraph 1 to the known exporters and to the authorities of the country of origin and/or export, and make it available upon request to other interested parties involved. Where the number of exporters involved is particularly high, the full text of the written complaint may instead be provided only to the authorities of the country of origin and/or export or to the relevant trade association.

14.   A countervailing duty investigation shall not hinder the procedures of customs clearance.

Article 11

The investigation

1.   Following the initiation of proceedings, the Commission, acting in cooperation with the Member States, shall commence an investigation at Union level. Such an investigation shall cover both subsidisation and injury, and they shall be investigated simultaneously.

For the purpose of a representative finding, an investigation period shall be selected which in the case of subsidisation shall, normally, cover the investigation period provided for in Article 5.

Information relating to a period subsequent to the investigation period shall not, normally, be taken into account.

2.   Parties receiving questionnaires used in a countervailing duty investigation shall be given at least 30 days to reply. The time limit for exporters shall be counted from the date of receipt of the questionnaire, which for this purpose shall be deemed to have been received one week from the day on which it was sent to the respondent or transmitted to the appropriate diplomatic representative of the country of origin and/or export. An extension to the 30-day period may be granted, due account being taken of the time limits of the investigation, provided that the party shows due cause for such an extension in terms of its particular circumstances.

3.   The Commission may request Member States to supply information, and Member States shall take whatever steps are necessary in order to give effect to such requests.

They shall send to the Commission the information requested together with the results of all inspections, checks or investigations carried out.

Where that information is of general interest or where its transmission has been requested by a Member State, the Commission shall forward it to the Member States, provided that it is not confidential, in which case a non-confidential summary shall be forwarded.

4.   The Commission may request Member States to carry out all necessary checks and inspections, particularly amongst importers, traders and Union producers, and to carry out investigations in third countries, provided that the firms concerned give their consent and that the government of the country in question has been officially notified and raises no objection.

Member States shall take whatever steps are necessary in order to give effect to such requests from the Commission.

Officials of the Commission shall be authorised, if the Commission or a Member State so requests, to assist the officials of Member States in carrying out their duties.

5.   The interested parties which have made themselves known in accordance with the second subparagraph of Article 10(12), shall be heard 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 an interested party likely to be affected by the result of the proceedings and that there are particular reasons why they should be heard.

6.   Opportunities shall, on request, be provided for the importers, exporters and the complainants, which have made themselves known in accordance with the second subparagraph of Article 10(12), and the government of the country of origin and/or export, to meet those parties having adverse interests, so that opposing views may be presented and rebuttal arguments offered.

Provision of such opportunities shall take account of the need to preserve confidentiality and of the convenience to the parties.

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.

Oral information provided under this paragraph shall be taken into account by the Commission in so far as it is subsequently confirmed in writing.

7.   The complainants, the government of the country of origin and/or export, importers and exporters and their representative associations, users and consumer organisations, which have made themselves known in accordance with the second subparagraph of Article 10(12), may, upon written request, inspect all information made available to the Commission by any party to an investigation, as distinct from internal documents prepared by the authorities of the Union or its Member States, which is relevant to the presentation of their cases and is not confidential within the meaning of Article 29, and is used in the investigation.

Such parties may respond to such information and their comments shall be taken into consideration wherever they are sufficiently substantiated in the response.

8.   Except in circumstances provided for in Article 28, the information which is supplied by interested parties and upon which findings are based shall be examined for accuracy as far as possible.

9.   For proceedings initiated pursuant to Article 10(11), an investigation shall, whenever possible, be concluded within one year. In any event, such investigations shall in all cases be concluded within 13 months of their initiation, in accordance with the findings made pursuant to Article 13 for undertakings or the findings made pursuant to Article 15 for definitive action.

10.   Throughout the investigation, the Commission shall afford the country of origin and/or export a reasonable opportunity to continue consultations with a view to clarifying the factual situation and arriving at a mutually agreed solution.

Article 12

Provisional measures

1.   Provisional duties may be imposed if:

| (a) | proceedings have been initiated in accordance with Article 10; |
| --- | --- |

(a)

proceedings have been initiated in accordance with Article 10;

| (b) | a notice has been given to that effect and interested parties have been given an adequate opportunity to submit information and make comments in accordance with the second subparagraph of Article 10(12); |
| --- | --- |

(b)

a notice has been given to that effect and interested parties have been given an adequate opportunity to submit information and make comments in accordance with the second subparagraph of Article 10(12);

| (c) | a provisional affirmative determination has been made that the imported product benefits from countervailable subsidies and of consequent injury to the Union industry; and |
| --- | --- |

(c)

a provisional affirmative determination has been made that the imported product benefits from countervailable subsidies and of consequent injury to the Union industry; and

| (d) | the Union interest calls for intervention to prevent such injury. |
| --- | --- |

(d)

the Union interest calls for intervention to prevent such injury.

The provisional duties shall be imposed no earlier than 60 days from the initiation of the proceedings but no later than nine months from the initiation of the proceedings.

The amount of the provisional countervailing duty shall not exceed the total amount of countervailable subsidies as provisionally established, but it should be less than this amount if such lesser duty would be adequate to remove the injury to the Union industry.

2.   Provisional duties shall be secured by a guarantee and the release of the products concerned for free circulation in the Union shall be conditional upon the provision of such a guarantee.

3.   The Commission shall adopt provisional measures in accordance with the procedure referred to in Article 25(4).

4.   Where a Member State requests immediate intervention by the Commission and where the conditions of the first and second subparagraphs of paragraph 1 are met, the Commission shall, within a maximum of five working days from receipt of the request, decide whether a provisional countervailing duty shall be imposed.

5.   Provisional countervailing duties shall be imposed for a maximum period of four months.

Article 13

Undertakings

1.   On the condition that a provisional affirmative determination of subsidisation and injury has been made, the Commission may in accordance with the advisory procedure referred to in Article 25(2) accept satisfactory voluntary undertakings offers under which:

| (a) | the country of origin and/or export agrees to eliminate or limit the subsidy or take other measures concerning its effects; or |
| --- | --- |

(a)

the country of origin and/or export agrees to eliminate or limit the subsidy or take other measures concerning its effects; or

| (b) | any exporter undertakes to revise its prices or to cease exports to the area in question as long as such exports benefit from countervailable subsidies, so that the Commission is satisfied that the injurious effect of the subsidies is thereby eliminated. |
| --- | --- |

(b)

any exporter undertakes to revise its prices or to cease exports to the area in question as long as such exports benefit from countervailable subsidies, so that the Commission is satisfied that the injurious effect of the subsidies is thereby eliminated.

In such a case and as long as such undertakings are in force, the provisional duties imposed by the Commission in accordance with Article 12(3) and the definitive duties imposed in accordance with Article 15(1) shall not apply to the relevant imports of the product concerned manufactured by the companies referred to in the Commission decision accepting undertakings, as subsequently amended.

Price increases under such undertakings shall not be higher than necessary to offset the amount of countervailable subsidies, and should be less than the amount of countervailable subsidies if such increases would be adequate to remove the injury to the Union industry.

2.   Undertakings may be suggested by the Commission, but no country or exporter shall be obliged to enter into such an undertaking. The fact that countries or exporters do not offer such undertakings, or do not accept an invitation to do so, shall in no way prejudice consideration of the case.

However, it may be determined that a threat of injury is more likely to be realised if the subsidised imports continue. Undertakings shall not be sought or accepted from countries or exporters unless a provisional affirmative determination of subsidisation and injury caused by such subsidisation has been made.

Save in exceptional circumstances, undertakings may not be offered later than the end of the period during which representations may be made pursuant to Article 30(5).

3.   Undertakings offered need not be accepted if their acceptance is considered impractical, such as where the number of actual or potential exporters is too great, or for other reasons, including reasons of general policy. The exporter and/or the country of origin and/or export concerned may be provided with the reasons for which it is proposed to reject the offer of an undertaking and may be given an opportunity to make comments thereon. The reasons for rejection shall be set out in the definitive decision.

4.   Parties which offer an undertaking shall be required to provide a non-confidential version of that undertaking, so that it may be made available to interested parties to the investigation.

5.   Where undertakings are accepted the investigation shall be terminated. The Commission shall terminate the investigation in accordance with the examination procedure referred to in Article 25(3).

6.   If the undertakings are accepted, the investigation of subsidisation and injury shall normally be completed. In such a case, if a negative determination of subsidisation or injury is made, the undertaking shall automatically lapse, except in cases where such a determination is due in large part to the existence of an undertaking. In such cases, it may be required that an undertaking be maintained for a reasonable period.

In the event that an affirmative determination of subsidisation and injury is made, the undertaking shall continue in accordance with its terms and the provisions of this Regulation.

7.   The Commission shall require any country or exporter from whom undertakings have been accepted to provide, periodically, information relevant to the fulfilment of that undertaking, and to permit verification of pertinent data. Non-compliance with such requirements shall be construed as a breach of the undertaking.

8.   Where undertakings are accepted from certain exporters during the course of an investigation, they shall, for the purpose of Articles 18, 19, 20 and 22, be deemed to take effect from the date on which the investigation is concluded for the country of origin and/or export.

9.   In the case of breach or withdrawal of undertakings by any party to the undertaking, or in the case of withdrawal of acceptance of the undertaking by the Commission, the acceptance of the undertaking shall be withdrawn by the Commission, as appropriate, and the provisional duty which has been imposed by the Commission in accordance with Article 12 or the definitive duty which has been imposed in accordance with Article 15(1) shall apply, provided that the exporter concerned or the country of origin and/or export has, except in the case of withdrawal of the undertaking by that exporter or country, been given an opportunity to comment. The Commission shall provide information to the Member States when it decides to withdraw an undertaking.

Any interested party or Member State may submit information, showing prima facie evidence of a breach of an undertaking. The subsequent assessment of whether or not a breach of an undertaking has occurred shall normally be concluded within six months, but in no case later than nine months following a duly substantiated request.

The Commission may request the assistance of the competent authorities of the Member States in the monitoring of undertakings.

10.   A provisional duty may be imposed in accordance with Article 12 on the basis of the best information available, where there is reason to believe that an undertaking is being breached, or in the case of breach or withdrawal of an undertaking, where the investigation which led to the undertaking has not been concluded.

Article 14

Termination without measures

1.   Where the complaint is withdrawn, proceedings may be terminated unless such termination would not be in the Union interest.

2.   Where protective measures are unnecessary, the investigation or proceedings shall be terminated. The Commission shall terminate the investigation in accordance with the examination procedure referred to in Article 25(3).

3.   There shall be immediate termination of the proceedings where it is determined that the amount of countervailable subsidies is de minimis, in accordance with paragraph 5, or where the volume of subsidised imports, actual or potential, or the injury, is negligible.

4.   For proceedings initiated pursuant to Article 10(11), injury shall normally be regarded as negligible where the market share of the imports is less than the amounts set out in Article 10(9). With regard to investigations concerning imports from developing countries, the volume of subsidised imports shall also be considered negligible if it represents less than 4 % of the total imports of the like product in the Union, unless imports from developing countries whose individual shares of total imports represent less than 4 % collectively account for more than 9 % of the total imports of the like product in the Union.

5.   The amount of the countervailable subsidies shall be considered to be de minimis if such amount is less than 1 % ad valorem, except where, as regards investigations concerning imports from developing countries, the de minimis threshold shall be 2 % ad valorem, provided that it is only the investigation that shall be terminated where the amount of the countervailable subsidies is below the relevant de minimis level for individual exporters, which shall remain subject to the proceedings and may be reinvestigated in any subsequent review carried out for the country concerned pursuant to Articles 18 and 19.

Article 15

Imposition of definitive duties

1.   Where the facts as finally established show the existence of countervailable subsidies and injury caused thereby, and the Union interest calls for intervention in accordance with Article 31, a definitive countervailing duty shall be imposed by the Commission acting in accordance with the examination procedure referred to in Article 25(3). Where provisional duties are in force, the Commission shall initiate that procedure no later than one month before the expiry of such duties.

No measures shall be imposed if the subsidy or subsidies are withdrawn or it has been demonstrated that the subsidies no longer confer any benefit on the exporters involved.

The amount of the countervailing duty shall not exceed the amount of countervailable subsidies established, but it should be less than the total amount of countervailable subsidies if such lesser duty would be adequate to remove the injury to the Union industry.

2.   A countervailing duty shall be imposed in the appropriate amounts in each case, on a non-discriminatory basis, on imports of a product from all sources found to benefit from countervailable subsidies and causing injury, except for imports from those sources from which undertakings under the terms of this Regulation have been accepted.

The Regulation imposing the duty shall specify the duty for each supplier, or, if that is impracticable, the supplying country concerned.

3.   When the Commission has limited its investigation in accordance with Article 27, any countervailing duty applied to imports from exporters or producers which have made themselves known in accordance with Article 27 but were not included in the investigation shall not exceed the weighted average amount of countervailable subsidies established for the parties in the sample.

For the purpose of this paragraph, the Commission shall disregard any zero and de minimis amounts of countervailable subsidies and amounts of countervailable subsidies established in the circumstances referred to in Article 28.

Individual duties shall be applied to imports from any exporter or producer for which an individual amount of subsidisation has been calculated as provided for in Article 27.

Article 16

Retroactivity

1.   Provisional measures and definitive countervailing duties shall only be applied to products which enter free circulation after the time when the measure taken pursuant to Article 12(1) or Article 15(1), as the case may be, enters into force, subject to the exceptions set out in this Regulation.

2.   Where a provisional duty has been applied and the facts as finally established show the existence of countervailable subsidies and injury, the Commission shall decide, irrespective of whether a definitive countervailing duty is to be imposed, what proportion of the provisional duty is to be definitively collected.

For that purpose, ‘injury’ shall not include material delay of the establishment of a Union industry, nor threat of material injury, except where it is found that this would, in the absence of provisional measures, have developed into material injury. In all other cases involving such threat or delay, any provisional amounts shall be released and definitive duties can only be imposed from the date on which a final determination of threat or material delay is made.

3.   If the definitive countervailing duty is higher than the provisional duty, the difference shall not be collected. If the definitive duty is lower than the provisional duty, the duty shall be recalculated. Where a final determination is negative, the provisional duty shall not be confirmed.

4.   A definitive countervailing duty may be levied on products which were entered for consumption no more than 90 days prior to the date of application of provisional measures but not prior to the initiation of the investigation, provided that:

| (a) | the imports have been registered in accordance with Article 24(5); |
| --- | --- |

(a)

the imports have been registered in accordance with Article 24(5);

| (b) | the importers concerned have been given an opportunity to comment by the Commission; |
| --- | --- |

(b)

the importers concerned have been given an opportunity to comment by the Commission;

| (c) | there are critical circumstances where for the subsidised product in question injury which is difficult to repair is caused by massive imports in a relatively short period of a product benefiting from countervailable subsidies under the terms of this Regulation; and |
| --- | --- |

(c)

there are critical circumstances where for the subsidised product in question injury which is difficult to repair is caused by massive imports in a relatively short period of a product benefiting from countervailable subsidies under the terms of this Regulation; and

| (d) | it is deemed necessary, in order to preclude the recurrence of such injury, to assess countervailing duties retroactively on those imports. |
| --- | --- |

(d)

it is deemed necessary, in order to preclude the recurrence of such injury, to assess countervailing duties retroactively on those imports.

5.   In cases of breach or withdrawal of undertakings, definitive duties may be levied on goods entered for free circulation no more than 90 days before the application of provisional measures, provided that the imports have been registered in accordance with Article 24(5) and that any such retroactive assessment shall not apply to imports entered before the breach or withdrawal of the undertaking.

Article 17

Duration

A countervailing measure shall remain in force only as long as, and to the extent that, it is necessary to counteract the countervailable subsidies which are causing injury.

Article 18

Expiry reviews

1.   A definitive countervailing measure shall expire five years from its imposition or five years from the date of the most recent review which has covered both subsidisation and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of subsidisation and injury. Such an expiry review shall be initiated on the initiative of the Commission, or upon a request made by or on behalf of Union producers, and the measure shall remain in force pending the outcome of that review.

2.   An expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of subsidisation and injury. Such a likelihood may, for example, be indicated by evidence of continued subsidisation and injury or evidence that the removal of injury is partly or solely due to the existence of measures or evidence that the circumstances of the exporters, or market conditions, are such that they would indicate the likelihood of further injurious subsidisation.

3.   In carrying out investigations under this Article, the exporters, importers, the country of origin and/or export and the Union producers shall be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request, and conclusions shall be reached with due account taken of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of subsidisation and injury.

4.   A notice of impending expiry shall be published in the Official Journal of the European Union at an appropriate time in the final year of the period of application of the measures as defined in this Article. Thereafter, the Union producers shall, no later than three months before the end of the five-year period, be entitled to lodge a review request in accordance with paragraph 2. A notice announcing the actual expiry of measures under this Article shall also be published.

Article 19

Interim reviews

1.   The need for the continued imposition of measures may also be reviewed, where warranted, on the initiative of the Commission or at the request of a Member State or, provided that a reasonable period of time of at least one year has elapsed since the imposition of the definitive measure, upon a request by any exporter, importer or by the Union producers or the country of origin and/or export which contains sufficient evidence substantiating the need for such an interim review.

2.   An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset the countervailable subsidy and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the countervailable subsidy which is causing injury.

3.   Where the countervailing duties imposed are less than the amount of countervailable subsidies found, an interim review may be initiated if the Union producers or any other interested party submit, normally within two years from the entry into force of the measures, sufficient evidence that, after the original investigation period and prior to or following the imposition of measures, export prices have decreased or that there has been no movement, or insufficient movement of resale prices of the imported product in the Union. If the investigation proves the allegations to be correct, countervailing duties may be increased to achieve the price increase required to remove injury. However, the increased duty level shall not exceed the amount of the countervailable subsidies.

The interim review may also be initiated, under the conditions set out above, at the initiative of the Commission or at the request of a Member State.

4.   In carrying out investigations pursuant to this Article, the Commission may, inter alia, consider whether the circumstances with regard to subsidisation and injury have changed significantly, or whether existing measures are achieving the intended results in removing the injury previously determined under Article 8. In those respects, account shall be taken in the final determination of all relevant and duly documented evidence.

Article 20

Accelerated reviews

Any exporter whose exports are subject to a definitive countervailing duty but which was not individually investigated during the original investigation for reasons other than a refusal to cooperate with the Commission, shall be entitled, upon request, to an accelerated review in order that the Commission may promptly establish an individual countervailing duty rate for that exporter.

Such a review shall be initiated after Union producers have been given an opportunity to comment.

Article 21

Refunds

1.   Notwithstanding Article 18, an importer may request reimbursement of duties collected where it is shown that the amount of countervailable subsidies, on the basis of which duties were paid, has been either eliminated or reduced to a level which is below the level of the duty in force.

2.   In requesting a refund of countervailing duties, the importer shall submit an application to the Commission. The application shall be submitted via the Member State in the territory of which the products were released for free circulation, within six months of the date on which the amount of the definitive duties to be levied was duly determined by the competent authorities or of the date on which a decision was made definitively to collect the amounts secured by way of provisional duty. Member States shall forward the request to the Commission forthwith.

3.   An application for refund shall be considered to be duly supported by evidence only where it contains precise information on the amount of refund of countervailing duties claimed and all customs documentation relating to the calculation and payment of such amount. It shall also include evidence, for a representative period, of the amount of countervailable subsidies for the exporter or producer to which the duty applies. In cases where the importer is not associated with the exporter or producer concerned and such information is not immediately available, or where the exporter or producer is unwilling to release it to the importer, the application shall contain a statement from the exporter or producer that the amount of countervailable subsidies has been reduced or eliminated, as specified in this Article, and that the relevant supporting evidence will be provided to the Commission. Where such evidence is not forthcoming from the exporter or producer within a reasonable period of time the application shall be rejected.

4.   The Commission shall decide whether and to what extent the application should be granted, or it may decide at any time to initiate an interim review, whereupon the information and findings from such a review, carried out in accordance with the provisions applicable for such reviews, shall be used to determine whether and to what extent a refund is justified.

Refunds of duties shall normally take place within 12 months and in no circumstances more than 18 months after the date on which a request for a refund, duly supported by evidence, has been made by an importer of the product subject to the countervailing duty.

The payment of any refund authorised should normally be made by Member States within 90 days of the decision referred to in the first subparagraph.

Article 22

General provisions on reviews and refunds

1.   The relevant provisions of this Regulation with regard to procedures and the conduct of investigations, excluding those relating to time limits, shall apply to any review carried out pursuant to Articles 18, 19 and 20.

Reviews carried out pursuant to Articles 18 and 19 shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review. In any event, reviews pursuant to Articles 18 and 19 shall in all cases be concluded within 15 months of initiation.

Reviews pursuant to Article 20 shall in all cases be concluded within nine months of the date of initiation.

If a review carried out pursuant to Article 18 is initiated while a review under Article 19 is ongoing in the same proceedings, the review pursuant to Article 19 shall be concluded at the same time as provided for above for the review pursuant to Article 18.

If the investigation is not completed within the deadlines specified in the second, third and fourth subparagraphs, the measures shall:

| (a) | expire in investigations pursuant to Article 18; |
| --- | --- |

(a)

expire in investigations pursuant to Article 18;

| (b) | expire in the case of investigations carried out pursuant to Articles 18 and 19 in parallel, where either the investigation pursuant to Article 18 was initiated while a review under Article 19 was ongoing in the same proceedings or where such reviews were initiated at the same time; or |
| --- | --- |

(b)

expire in the case of investigations carried out pursuant to Articles 18 and 19 in parallel, where either the investigation pursuant to Article 18 was initiated while a review under Article 19 was ongoing in the same proceedings or where such reviews were initiated at the same time; or

| (c) | remain unchanged in investigations pursuant to Articles 19 and 20. |
| --- | --- |

(c)

remain unchanged in investigations pursuant to Articles 19 and 20.

A notice announcing the actual expiry or maintenance of the measures pursuant to this paragraph shall be published in the Official Journal of the European Union.

2.   Reviews pursuant to Articles 18, 19 and 20 shall be initiated by the Commission. The Commission shall decide whether or not to initiate reviews pursuant to Article 18 in accordance with the advisory procedure referred to in Article 25(2). The Commission shall also provide information to the Member States once an operator or a Member State has submitted a request justifying the initiation of a review pursuant to Articles 19 and 20 and the Commission has completed its analysis thereof, or once the Commission has itself determined that the need for the continued imposition of measures should be reviewed.

3.   Where warranted by reviews, measures shall, in accordance with the examination procedure referred to in Article 25(3), be repealed or maintained pursuant to Article 18, or repealed, maintained or amended pursuant to Articles 19 and 20.

4.   Where measures are repealed for individual exporters, but not for the country as a whole, such exporters shall remain subject to the proceedings and may be reinvestigated in any subsequent review carried out for that country pursuant to this Article.

5.   Where a review of measures pursuant to Article 19 is in progress at the end of the period of application of measures as defined in Article 18, the measures shall also be investigated under the provisions of Article 18.

6.   In all review or refund investigations carried out pursuant to Articles 18 to 21, the Commission shall, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, with due account being taken of Articles 5, 6, 7 and 27.

Article 23

Circumvention

1.   Countervailing duties imposed pursuant to this Regulation may be extended to imports from third countries of the like product, whether slightly modified or not, or to imports of the slightly modified like product from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place.

2.   Countervailing duties not exceeding the residual countervailing duty imposed in accordance with Article 15(2) may be extended to imports from companies benefiting from individual duties in the countries subject to measures when circumvention of the measures in force is taking place.

3.   Circumvention shall be defined as a change in the pattern of trade between third countries and the Union or between individual companies in the country subject to measures and the Union, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like product and that the imported like product and/or parts thereof still benefit from the subsidy.

The practice, process or work referred to in the first subparagraph includes, inter alia:

| (a) | the slight modification of the product concerned to make it fall under customs codes which are normally not subject to the measures, provided that the modification does not alter its essential characteristics; |
| --- | --- |

(a)

the slight modification of the product concerned to make it fall under customs codes which are normally not subject to the measures, provided that the modification does not alter its essential characteristics;

| (b) | the consignment of the product subject to measures via third countries; |
| --- | --- |

(b)

the consignment of the product subject to measures via third countries;

| (c) | the reorganisation by exporters or producers of their patterns and channels of sales in the country subject to measures in order to eventually have their products exported to the Union through producers benefiting from an individual duty rate lower than that applicable to the products of the manufacturers. |
| --- | --- |

(c)

the reorganisation by exporters or producers of their patterns and channels of sales in the country subject to measures in order to eventually have their products exported to the Union through producers benefiting from an individual duty rate lower than that applicable to the products of the manufacturers.

4.   Investigations shall be initiated pursuant to this Article on the initiative of the Commission or at the request of a Member State or of any interested party on the basis of sufficient evidence regarding the factors set out in paragraphs 1, 2 and 3. Initiations shall be made by Commission Regulation which may also instruct customs authorities to subject imports to registration in accordance with Article 24(5) or to request guarantees. The Commission shall provide information to the Member States once an interested party or a Member State has submitted a request justifying the initiation of an investigation and the Commission has completed its analysis thereof, or where the Commission has itself determined that there is a need to initiate an investigation.

Investigations shall be carried out by the Commission. The Commission may be assisted by customs authorities and the investigations shall be concluded within nine months.

Where the facts as finally ascertained justify the extension of measures, this shall be done by the Commission acting in accordance with the examination procedure referred to in Article 25(3).

The extension shall take effect from the date on which registration was imposed pursuant to Article 24(5) or on which guarantees were requested. The relevant procedural provisions of this Regulation with regard to the initiation and the conduct of investigations shall apply pursuant to this Article.

5.   Imports shall not be subject to registration pursuant to Article 24(5) or measures where they are traded by companies which benefit from exemptions.

6.   Requests for exemptions duly supported by evidence shall be submitted within the time limits established in the Commission Regulation initiating the investigation.

Where the circumventing practice, process or work takes place outside the Union, exemptions may be granted to producers of the product concerned that can show that they are not related to any producer subject to the measures and that are found not to be engaged in circumvention practices as defined in paragraph 3.

Where the circumventing practice, process or work takes place inside the Union, exemptions may be granted to importers that can show that they are not related to producers subject to the measures.

Those exemptions shall be granted by decision of the Commission and shall remain valid for the period and under the conditions set down therein. The Commission shall provide information to the Member States once it has concluded its analysis.

Provided that the conditions set in Article 20 are met, exemptions may also be granted after the conclusion of the investigation leading to the extension of the measures.

7.   Provided that at least one year has lapsed from the extension of the measures, and in case the number of parties requesting or potentially requesting an exemption is significant, the Commission may decide to initiate a review of the extension of the measures. Any such review shall be conducted in accordance with the provisions of Article 22(1) as applicable to reviews under Article 19.

8.   Nothing in this Article shall preclude the normal application of the provisions in force concerning customs duties.

Article 24

General provisions

1.   Provisional or definitive countervailing duties shall be imposed by Regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the Regulation imposing such duties. Such duties shall also be collected independently of the customs duties, taxes and other charges normally imposed on imports.

No product shall be subject to both anti-dumping and countervailing duties for the purpose of dealing with one and the same situation arising from dumping or from export subsidisation.

2.   Regulations imposing provisional or definitive countervailing duties, and Regulations or Decisions accepting undertakings or terminating investigations or proceedings, shall be published in the Official Journal of the European Union.

Such Regulations or Decisions shall contain in particular, and with due regard to the protection of confidential information, the names of the exporters, if possible, or of the countries involved, a description of the product and a summary of the facts and considerations relevant to the subsidy and injury determinations. In each case, a copy of the Regulation or Decision shall be sent to known interested parties. The provisions of this paragraph shall apply mutatis mutandis to reviews.

3.   Special provisions, in particular with regard to the common definition of the concept of origin, as contained in Regulation (EU) No 952/2013 of the European Parliament and of the Council (6), may be adopted pursuant to this Regulation.

4.   In the Union interest, measures imposed pursuant to this Regulation may be suspended by a decision of the Commission in accordance with the advisory procedure referred to in Article 25(2) for a period of nine months. The suspension may be extended for a further period, not exceeding one year, by the Commission acting in accordance with the advisory procedure referred to in Article 25(2).

Measures may only be suspended where market conditions have temporarily changed to an extent that injury would be unlikely to resume as a result of the suspension, and provided that the Union industry has been given an opportunity to comment and those comments have been taken into account. Measures may at any time be reinstated in accordance with the advisory procedure referred to in Article 25(2) if the reason for suspension is no longer applicable.

5.   The Commission may, after having informed the Member States in due time, direct the customs authorities to take the appropriate steps to register imports, so that measures may subsequently be applied against those imports from the date of such registration.

Imports may be made subject to registration following a request from the Union industry which contains sufficient evidence to justify such action.

Registration shall be introduced by Regulation which shall specify the purpose of the action and, if appropriate, the estimated amount of possible future liability. Imports shall not be made subject to registration for a period longer than nine months.

6.   Member States shall report to the Commission every month on the import trade of products subject to investigation and to measures, and on the amount of duties collected pursuant to this Regulation.

7.   Without prejudice to paragraph 6, the Commission may request Member States, on a case-by-case basis, to supply information necessary to monitor efficiently the application of measures. In this respect, the provisions of Articles 11(3) and (4) shall apply. Any data submitted by Member States pursuant to this Article shall be covered by the provisions of Article 29(6).

Article 25

Committee procedure

1.   The Commission shall be assisted by the Committee established by Regulation (EU) 2016/1036 of the European Parliament and of the Council (7). That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

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.

4.   Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 4 thereof, shall apply.

5.   Pursuant to Article 3(5) of Regulation (EU) No 182/2011, where the written procedure is used to adopt definitive measures pursuant to paragraph 3 of this Article, or to decide on the initiation or non-initiation of expiry reviews pursuant to Article 18 of this Regulation, that procedure shall be terminated without result where, within the time limit set down by the chair, the chair so decides or a majority of committee members as defined in Article 5(1) of Regulation (EU) No 182/2011 so request. Where the written procedure is used in other instances where there has been a discussion of the draft measure in the committee, that procedure shall be terminated without result where, within the time limit set down by the chair, the chair so decides or a simple majority of committee members so request. Where the written procedure is used in other instances where there has not been a discussion of the draft measure in the committee, that procedure shall be terminated without result where, within the time limit set down by the chair, the chair so decides or at least a quarter of committee members so request.

6.   The committee may consider any matter relating to the application of this Regulation, raised by the Commission or at the request of a Member State. Member States may request information and may exchange views in the committee or directly with the Commission.

Article 26

Verification visits

1.   The Commission shall, where it considers it appropriate, carry out visits to examine the records of importers, exporters, traders, agents, producers, trade associations and organisations, and to verify information provided on subsidisation and injury. In the absence of a proper and timely reply the Commission may choose not to carry out a verification visit.

2.   The Commission may carry out investigations in third countries as required, provided that it obtains the agreement of the firms concerned, that it notifies the country in question and that the latter does not object to the investigation. As soon as the agreement of the firms concerned has been obtained, the Commission shall notify the country of origin and/or export of the names and addresses of the firms to be visited and the dates agreed.

3.   The firms concerned shall be advised of the nature of the information to be verified during verification visits and of any further information which needs to be provided during such visits, though this does not preclude requests, made during the verification, for further details to be provided in the light of information obtained.

4.   In investigations carried out pursuant to paragraphs 1, 2 and 3, the Commission shall be assisted by officials of those Member States which so request.

Article 27

Sampling

1.   In cases where the number of complainants, exporters or importers, types of product or transactions is large, the investigation may be limited to:

| (a) | a reasonable number of parties, products or transactions by using samples which are statistically valid on the basis of information available at the time of the selection; or |
| --- | --- |

(a)

a reasonable number of parties, products or transactions by using samples which are statistically valid on the basis of information available at the time of the selection; or

| (b) | the largest representative volume of the production, sales or exports which can reasonably be investigated within the time available. |
| --- | --- |

(b)

the largest representative volume of the production, sales or exports which can reasonably be investigated within the time available.

2.   The final selection of parties, types of products or transactions made under this Article shall rest with the Commission, though preference shall be given to choosing a sample in consultation with, and with the consent of, the parties concerned, provided that such parties make themselves known and make sufficient information available, within three weeks of initiation of the investigation, to enable a representative sample to be chosen.

3.   In cases where the investigation has been limited in accordance with this Article, an individual amount of countervailable subsidisation shall be calculated for any exporter or producer not initially selected who submits the necessary information within the time limits provided for in this Regulation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome and would prevent completion of the investigation in good time.

4.   Where it is decided to sample and there is a degree of non-cooperation by some or all of the parties selected which is likely to materially affect the outcome of the investigation, a new sample may be selected.

However, if a material degree of non-cooperation persists or there is insufficient time to select a new sample, the relevant provisions of Article 28 shall apply.

Article 28

Non-cooperation

1.   In cases in which any interested party refuses access to, or otherwise does not provide necessary information within the time limits provided for in this Regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available.

Where it is found that any interested party has supplied false or misleading information, that information shall be disregarded and use may be made of the facts available.

Interested parties shall be made aware of the consequences of non-cooperation.

2.   Failure to give a computerised response shall not be deemed to constitute non-cooperation, provided that the interested party shows that presenting the response as requested would result in an unreasonable extra burden or unreasonable additional cost.

3.   Where the information submitted by an interested party is not ideal in all respects, it shall nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability.

4.   If evidence or information is not accepted, the supplying party shall be informed forthwith of the reasons therefor and shall be granted an opportunity to provide further explanations within the time limit specified. If the explanations are considered unsatisfactory, the reasons for rejection of such evidence or information shall be disclosed and given in published findings.

5.   If determinations, including those regarding the amount of countervailable subsidies, are based on the provisions of paragraph 1, including the information supplied in the complaint, it shall, where practicable and with due regard to the time limits of the investigation, be checked by reference to information from other independent sources which may be available, such as published price lists, official import statistics and customs returns, or information obtained from other interested parties during the investigation.

Such information may include relevant data pertaining to the world market or other representative markets, where appropriate.

6.   If an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result of the investigation may be less favourable to the party than if it had cooperated.

Article 29

Confidentiality

1.   Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or would have a significantly adverse effect upon a person supplying the information or upon a person from whom the person supplying the information has acquired the information), or which is provided on a confidential basis by parties to an investigation shall, if good cause is shown, be treated as such by the authorities.

2.   Interested parties providing confidential information shall be required to provide non-confidential summaries thereof. Those summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not capable of being summarised. In such exceptional circumstances, a statement of the reasons why summarisation is not possible shall be provided.

3.   If it is considered that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information available or to authorise its disclosure in generalised or summary form, such information may be disregarded unless it can be satisfactorily demonstrated from appropriate sources that the information is correct. Requests for confidentiality shall not be arbitrarily rejected.

4.   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, or disclosure of the evidence relied on by the Union authorities in so far as is necessary to explain those reasons in court proceedings. Such disclosure shall take into account the legitimate interests of the parties concerned that their business or governmental secrets not be divulged.

5.   The Commission and the Member States, including the officials of either, shall not reveal any information received pursuant to this Regulation for which confidential treatment has been requested by its supplier, without specific permission from that supplier. Exchanges of information between the Commission and Member States, or any internal documents prepared by the authorities of the Union or the Member States, shall not be divulged except as specifically provided for in this Regulation.

6.   Information received pursuant to this Regulation shall be used only for the purpose for which it was requested.

This provision shall not preclude the use of information received in the context of one investigation for the purpose of initiating other investigations within the same proceedings concerning the same like product.

Article 30

Disclosure

1.   The complainants, importers and exporters and their representative associations, and the country of origin and/or export, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Requests for such disclosure shall be made in writing immediately following the imposition of provisional measures, and the disclosure shall be made in writing as soon as possible thereafter.

2.   The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.

3.   Requests for final disclosure shall be addressed to the Commission in writing and be received, in cases where a provisional duty has been imposed, no later than one month after publication of the imposition of that duty. Where a provisional duty has not been imposed, parties shall be provided with an opportunity to request final disclosure within time limits set by the Commission.

4.   Final disclosure shall be given in writing. It shall be made, due regard being had to the protection of confidential information, as soon as possible and, normally, no later than one month prior to the initiation of the procedures set out in Article 14 or Article 15. Where the Commission is not in a position to disclose certain facts or considerations at that time, they shall be disclosed as soon as possible thereafter.

Disclosure shall not prejudice any subsequent decision which may be taken by the Commission, but where such a decision is based on any different facts and considerations they shall be disclosed as soon as possible.

5.   Representations made after final disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter. A shorter period may be set whenever an additional final disclosure has to be made.

Article 31

Union interest

1.   A determination as to whether the Union's interest calls for intervention shall be based on an appraisal of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers. A determination pursuant to this Article shall be made only where all parties have been given the opportunity to make their views known pursuant to paragraph 2. In such an examination, the need to eliminate the trade-distorting effects of injurious subsidisation and to restore effective competition shall be given special consideration. Measures, as determined on the basis of subsidisation and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the Union's interest to apply such measures.

2.   In order to provide a sound basis on which the authorities can take account of all views and information in the decision as to whether or not the imposition of measures is in the Union's interest, the complainants, importers and their representative associations, representative users and representative consumer organisations may, within the time limits specified in the notice of initiation of the countervailing duty investigation, make themselves known and provide information to the Commission. Such information, or appropriate summaries thereof, shall be made available to the other parties specified in this paragraph, and they shall be entitled to respond to such information.

3.   The parties which have acted in accordance with paragraph 2 may request a hearing. Such requests shall be granted when they are submitted within the time limits set in paragraph 2, and when they set out the reasons, in terms of the Union interest, why the parties should be heard.

4.   The parties which have acted in accordance with paragraph 2 may provide comments on the application of any provisional duties. Such comments shall be received within 25 days of the date of application of such measures if they are to be taken into account and they, or appropriate summaries thereof, shall be made available to other parties who shall be entitled to respond to such comments.

5.   The Commission shall examine the information which is properly submitted and the extent to which it is representative, and the results of such analysis, together with an opinion on its merits, shall be transmitted to the committee referred to in Article 25 as part of the draft measure submitted pursuant to Articles 14 and 15. The views expressed in the committee should be taken into account by the Commission under the conditions provided for in Regulation (EU) No 182/2011.

6.   The parties which have acted in conformity with paragraph 2 may request that the facts and considerations on which final decisions are likely to be taken be made available to them. Such information shall be made available to the extent possible and without prejudice to any subsequent decision taken by the Commission.

7.   Information shall be taken into account only where it is supported by actual evidence which substantiates its validity.

Article 32

Relationships between countervailing duty measures and multilateral remedies

If an imported product is made subject to any countermeasures imposed following recourse to the dispute settlement procedures of the Subsidies Agreement, and such measures are appropriate to remove the injury caused by the countervailable subsidies, any countervailing duty imposed with regard to that product shall immediately be suspended, or repealed, as appropriate.

Article 33

Final provisions

This Regulation shall not preclude the application of:

| (a) | any special rules laid down in agreements concluded between the Union and third countries; |
| --- | --- |

(a)

any special rules laid down in agreements concluded between the Union and third countries;

| (b) | the Union Regulations in the agricultural sector and Council Regulations (EC) No 1667/2006 (8), (EC) No 614/2009 (9) and (EC) No 1216/2009 (10). This Regulation shall operate by way of complement to those Regulations and in derogation from any provisions thereof which preclude the application of countervailing duties; |
| --- | --- |

(b)

the Union Regulations in the agricultural sector and Council Regulations (EC) No 1667/2006 (8), (EC) No 614/2009 (9) and (EC) No 1216/2009 (10). This Regulation shall operate by way of complement to those Regulations and in derogation from any provisions thereof which preclude the application of countervailing duties;

8

9

10

| (c) | special measures, provided that such action does not run counter to obligations under the GATT 1994. |
| --- | --- |

(c)

special measures, provided that such action does not run counter to obligations under the GATT 1994.

Article 34

Report

The Commission shall include information on the implementation of this Regulation in its annual report on the application and implementation of trade defence measures presented to the European Parliament and to the Council pursuant to Article 23 of Regulation (EU) 2016/1036.

Article 35

Repeal

Regulation (EC) No 597/2009 is repealed.

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 VI.

Article 36

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Official Journal of the European Union

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Strasbourg, 8 June 2016.

For the European Parliament

The President

M. SCHULZ

For the Council

The President

A.G. KOENDERS

---

(1)  Opinion of 10 December 2014 (OJ C 230, 14.7.2015, p. 129).

1

(2)  Position of the European Parliament of 10 May 2016 (not yet published in the Official Journal) and decision of the Council of 30 May 2016.

2

(3)  Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ L 188, 18.7.2009, p. 93).

3

(4)  See Annex V.

4

(5)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

5

(6)  Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1).

6

(7)  Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (see page 21 of this Official Journal).

7

(8)  Council Regulation (EC) No 1667/2006 of 7 November 2006 on glucose and lactose (OJ L 312, 11.11.2006, p. 1).

8

(9)  Council Regulation (EC) No 614/2009 of 7 July 2009 on the common system of trade for ovalbumin and lactalbumin (OJ L 181, 14.7.2009, p. 8).

9

(10)  Council Regulation (EC) No 1216/2009 of 30 November 2009 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products (OJ L 328, 15.12.2009, p. 10).

10

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ANNEX I

ILLUSTRATIVE LIST OF EXPORT SUBSIDIES

| (a) | The provision by governments of direct subsidies to a firm or an industry contingent upon export performance. |
| --- | --- |

(a)

The provision by governments of direct subsidies to a firm or an industry contingent upon export performance.

| (b) | Currency retention schemes or any similar practices which involve a bonus on exports. |
| --- | --- |

(b)

Currency retention schemes or any similar practices which involve a bonus on exports.

| (c) | Internal transport and freight charges on export shipments, provided or mandated by governments, on terms more favourable than for domestic shipments. |
| --- | --- |

(c)

Internal transport and freight charges on export shipments, provided or mandated by governments, on terms more favourable than for domestic shipments.

| (d) | The provision by governments or their agencies either directly or indirectly through government-mandated schemes, of imported or domestic products or services for use in the production of exported goods, on terms or conditions more favourable than for provision of like or directly competitive products or services for use in the production of goods for domestic consumption, if (in the case of products) such terms or conditions are more favourable than those commercially available (1) on world markets to their exporters. |
| --- | --- |

(d)

The provision by governments or their agencies either directly or indirectly through government-mandated schemes, of imported or domestic products or services for use in the production of exported goods, on terms or conditions more favourable than for provision of like or directly competitive products or services for use in the production of goods for domestic consumption, if (in the case of products) such terms or conditions are more favourable than those commercially available (1) on world markets to their exporters.

| (e) | The full or partial exemption, remission, or deferral (2) specifically related to exports, of direct taxes (3) or social welfare charges paid or payable by industrial or commercial enterprises. |
| --- | --- |

(e)

The full or partial exemption, remission, or deferral (2) specifically related to exports, of direct taxes (3) or social welfare charges paid or payable by industrial or commercial enterprises.

| (f) | The allowance of special deductions directly related to exports or export performance, over and above those granted in respect of production for domestic consumption, in the calculation of the base on which direct taxes are charged. |
| --- | --- |

(f)

The allowance of special deductions directly related to exports or export performance, over and above those granted in respect of production for domestic consumption, in the calculation of the base on which direct taxes are charged.

| (g) | The exemption or remission, in respect of the production and distribution of exported products, of indirect taxes (4) in excess of those levied in respect of the production and distribution of like products when sold for domestic consumption. |
| --- | --- |

(g)

The exemption or remission, in respect of the production and distribution of exported products, of indirect taxes (4) in excess of those levied in respect of the production and distribution of like products when sold for domestic consumption.

| (h) | The exemption, remission or deferral of prior-stage cumulative indirect taxes (4) on goods or services used in the production of exported products in excess of the exemption, remission or deferral of like prior-stage cumulative indirect taxes on goods or services used in the production of like products when sold for domestic consumption; provided, however, that prior-stage cumulative indirect taxes may be exempted, remitted or deferred on exported products even when not exempted, remitted or deferred on like products when sold for domestic consumption, if the prior-stage cumulative indirect taxes are levied on inputs that are consumed in the production of the exported product (making normal allowance for waste) (5). This item shall be interpreted in accordance with the guidelines on consumption of inputs in the production process contained in Annex II. |
| --- | --- |

(h)

The exemption, remission or deferral of prior-stage cumulative indirect taxes (4) on goods or services used in the production of exported products in excess of the exemption, remission or deferral of like prior-stage cumulative indirect taxes on goods or services used in the production of like products when sold for domestic consumption; provided, however, that prior-stage cumulative indirect taxes may be exempted, remitted or deferred on exported products even when not exempted, remitted or deferred on like products when sold for domestic consumption, if the prior-stage cumulative indirect taxes are levied on inputs that are consumed in the production of the exported product (making normal allowance for waste) (5). This item shall be interpreted in accordance with the guidelines on consumption of inputs in the production process contained in Annex II.

| (i) | The remission or drawback of import charges (4) in excess of those levied on imported inputs that are consumed in the production of the exported product (making normal allowance for waste); provided, however, that in particular cases a firm may use a quantity of home market inputs equal to, and having the same quality and characteristics as, the imported inputs as a substitute for them in order to benefit from this provision if the import and the corresponding export operations both occur within a reasonable time period, not to exceed two years. This item shall be interpreted in accordance with the guidelines on consumption of inputs in the production process contained in Annex II and the guidelines in the determination of substitution drawback systems as export subsidies contained in Annex III. |
| --- | --- |

(i)

The remission or drawback of import charges (4) in excess of those levied on imported inputs that are consumed in the production of the exported product (making normal allowance for waste); provided, however, that in particular cases a firm may use a quantity of home market inputs equal to, and having the same quality and characteristics as, the imported inputs as a substitute for them in order to benefit from this provision if the import and the corresponding export operations both occur within a reasonable time period, not to exceed two years. This item shall be interpreted in accordance with the guidelines on consumption of inputs in the production process contained in Annex II and the guidelines in the determination of substitution drawback systems as export subsidies contained in Annex III.

| (j) | The provision by governments (or special institutions controlled by governments) of export credit guarantee or insurance programmes, of insurance or guarantee programmes against increases in the cost of exported products or of exchange risk programmes, at premium rates which are inadequate to cover the long-term operating costs and losses of the programmes. |
| --- | --- |

(j)

The provision by governments (or special institutions controlled by governments) of export credit guarantee or insurance programmes, of insurance or guarantee programmes against increases in the cost of exported products or of exchange risk programmes, at premium rates which are inadequate to cover the long-term operating costs and losses of the programmes.

| (k) | The grant by governments (or special institutions controlled by and/or acting under the authority of governments) of export credits at rates below those which they actually have to pay for the funds so employed (or would have to pay if they borrowed on international capital markets in order to obtain funds of the same maturity and other credit terms and denominated in the same currency as the export credit), or the payment by them of all or part of the costs incurred by exporters or financial institutions in obtaining credits, in so far as they are used to secure a material advantage in the field of export credit terms.
  Provided, however, that if a Member of the WTO is a party to an international undertaking on official export credits to which at least 12 original such Members are parties as of 1 January 1979 (or a successor undertaking which has been adopted by those original Members), or if in practice a Member of the WTO applies the interest rates provisions of the relevant undertaking, an export credit practice which is in conformity with those provisions shall not be considered an export subsidy. |
| --- | --- |

(k)

The grant by governments (or special institutions controlled by and/or acting under the authority of governments) of export credits at rates below those which they actually have to pay for the funds so employed (or would have to pay if they borrowed on international capital markets in order to obtain funds of the same maturity and other credit terms and denominated in the same currency as the export credit), or the payment by them of all or part of the costs incurred by exporters or financial institutions in obtaining credits, in so far as they are used to secure a material advantage in the field of export credit terms.

Provided, however, that if a Member of the WTO is a party to an international undertaking on official export credits to which at least 12 original such Members are parties as of 1 January 1979 (or a successor undertaking which has been adopted by those original Members), or if in practice a Member of the WTO applies the interest rates provisions of the relevant undertaking, an export credit practice which is in conformity with those provisions shall not be considered an export subsidy.

| (l) | Any other charge on the public account constituting an export subsidy in the sense of Article XVI of the GATT 1994. |
| --- | --- |

(l)

Any other charge on the public account constituting an export subsidy in the sense of Article XVI of the GATT 1994.

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(1)  
  ‘Commercially available’ means that the choice between domestic and imported products is unrestricted and depends only on commercial considerations.

(2)  Deferral may not amount to an export subsidy where, for example, appropriate interest charges are collected.

(3)  For the purposes of this Regulation:

| — | ‘direct taxes’ means taxes on wages, profits, interests, rents, royalties, and all other forms of income, and taxes on the ownership of real property, |
| --- | --- |

—

‘direct taxes’ means taxes on wages, profits, interests, rents, royalties, and all other forms of income, and taxes on the ownership of real property,

| — | ‘import charges’ means tariffs, duties, and other fiscal charges not elsewhere enumerated in this footnote that are levied on imports, |
| --- | --- |

—

‘import charges’ means tariffs, duties, and other fiscal charges not elsewhere enumerated in this footnote that are levied on imports,

| — | ‘indirect taxes’ means sales, excise, turnover, value added, franchise, stamp, transfer, inventory and equipment taxes, border taxes and all taxes other than direct taxes and import charges, |
| --- | --- |

—

‘indirect taxes’ means sales, excise, turnover, value added, franchise, stamp, transfer, inventory and equipment taxes, border taxes and all taxes other than direct taxes and import charges,

| — | ‘prior-stage’ indirect taxes are those levied on goods or services used directly or indirectly in making the product, |
| --- | --- |

—

‘prior-stage’ indirect taxes are those levied on goods or services used directly or indirectly in making the product,

| — | ‘cumulative’ indirect taxes are multi-staged taxes levied where there is no mechanism for subsequent crediting of the tax if the goods or services subject to tax at one stage of production are used in a succeeding state of production, |
| --- | --- |

—

‘cumulative’ indirect taxes are multi-staged taxes levied where there is no mechanism for subsequent crediting of the tax if the goods or services subject to tax at one stage of production are used in a succeeding state of production,

| — | ‘remission’ of taxes includes the refund or rebate of taxes, |
| --- | --- |

—

‘remission’ of taxes includes the refund or rebate of taxes,

| — | ‘remission or drawback’ includes the full or partial exemption or deferral of import charges. |
| --- | --- |

—

‘remission or drawback’ includes the full or partial exemption or deferral of import charges.

(4)  See footnote 2 to point (e).

(5)  Point (h) does not apply to value added tax systems and border-tax adjustment in lieu thereof; the problem of the excessive remission of value added taxes is exclusively covered by point (g).

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ANNEX II

GUIDELINES ON CONSUMPTION OF INPUTS IN THE PRODUCTION PROCESS
   (1)

| 1. | Indirect tax rebate schemes can allow for exemption, remission or deferral of prior-stage cumulative indirect taxes levied on inputs that are consumed in the production of the exported product (making normal allowance for waste). Similarly, drawback schemes can allow for the remission or drawback of import charges levied on inputs that are consumed in the production of the exported product (making normal allowance for waste). |
| --- | --- |

1.

| 2. | The illustrative list of export subsidies in Annex I makes reference to the term ‘inputs that are consumed in the production of the exported product’ in points (h) and (i). Pursuant to point (h), indirect tax rebate schemes can constitute an export subsidy to the extent that they result in exemption, remission or deferral of prior-stage cumulative indirect taxes in excess of the amount of such taxes actually levied on inputs that are consumed in the production of the exported product. Pursuant to point (i), drawback schemes can constitute an export subsidy to the extent that they result in a remission or drawback of import charges in excess of those actually levied on inputs that are consumed in the production of the exported product. Both points stipulate that normal allowance for waste must be made in findings regarding consumption of inputs in the production of the exported product. Point (i) also provides for substitution, where appropriate. |
| --- | --- |

2.

| 3. | In examining whether inputs are consumed in the production of the exported product, as part of a countervailing duty investigation pursuant to this Regulation, the Commission must normally proceed on the following basis. |
| --- | --- |

3.

| 4. | Where it is alleged that an indirect tax rebate scheme, or a drawback scheme, conveys a subsidy by reason of over-rebate or excess drawback of indirect taxes or import charges on inputs consumed in the production of the exported product, the Commission must normally first determine whether the government of the exporting country has in place and applies a system or procedure to confirm which inputs are consumed in the production of the exported product and in what amounts. Where such a system or procedure is determined to be applied, the Commission must normally then examine the system or procedure to see whether it is reasonable, effective for the purpose intended, and based on generally accepted commercial practices in the country of export. The Commission may deem it necessary to carry out, in accordance with Article 26(2), certain practical tests in order to verify information or to satisfy itself that the system or procedure is being effectively applied. |
| --- | --- |

4.

| 5. | Where there is no such system or procedure, where it is not reasonable, or where it is instituted and considered reasonable but is found not to be applied or not to be applied effectively, a further examination by the exporting country based on the actual inputs involved will normally need to be carried out in the context of determining whether an excess payment occurred. If the Commission deems it necessary, a further examination may be carried out in accordance with point 4. |
| --- | --- |

5.

| 6. | The Commission must normally treat inputs as physically incorporated if such inputs are used in the production process and are physically present in the product exported. An input need not be present in the final product in the same form in which it entered the production process. |
| --- | --- |

6.

| 7. | In determining the amount of a particular input that is consumed in the production of the exported product, a ‘normal allowance for waste’ must normally be taken into account, and such waste must normally be treated as consumed in the production of the exported product. The term ‘waste’ refers to that portion of a given input which does not serve an independent function in the production process, is not consumed in the production of the exported product (for reasons such as inefficiencies) and is not recovered, used or sold by the same manufacturer. |
| --- | --- |

7.

| 8. | The Commission's determination of whether the claimed allowance for waste is ‘normal’ must normally take into account the production process, the average experience of the industry in the country of export, and other technical factors, as appropriate. The Commission must bear in mind that an important question is whether the authorities in the exporting country have reasonably calculated the amount of waste, when such an amount is intended to be included in the tax or duty rebate or remission. |
| --- | --- |

8.

---

(1)  Inputs consumed in the production process are inputs physically incorporated, energy, fuels and oil used in the production process and catalysts which are consumed in the course of their use to obtain the exported product.

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ANNEX III

GUIDELINES IN THE DETERMINATION OF SUBSTITUTION DRAWBACK SYSTEMS AS EXPORT SUBSIDIES

I

Drawback systems can allow for the refund or drawback of import charges on inputs which are consumed in the production process of another product and where the export of this latter product contains domestic inputs having the same quality and characteristics as those submitted for the imported inputs. Pursuant to point (i) of Annex I, substitution drawback systems can constitute an export subsidy to the extent that they result in an excess drawback of the import charges levied initially on the imported inputs for which drawback is being claimed.

II

In examining any substitution drawback system as part of a countervailing duty investigation pursuant to this Regulation, the Commission must normally proceed on the following basis:

| 1. | point (i) of Annex I stipulates that home market inputs may be substituted for imported inputs in the production of a product for export provided such inputs are equal in quantity to, and have the same quality and characteristics as, the imported inputs being substituted. The existence of a verification system or procedure is important because it enables the government of the exporting country to ensure and demonstrate that the quantity of inputs for which drawback is claimed does not exceed the quantity of similar products exported, in whatever form, and that there is no drawback of import charges in excess of those originally levied on the imported inputs in question; |
| --- | --- |

1.

point (i) of Annex I stipulates that home market inputs may be substituted for imported inputs in the production of a product for export provided such inputs are equal in quantity to, and have the same quality and characteristics as, the imported inputs being substituted. The existence of a verification system or procedure is important because it enables the government of the exporting country to ensure and demonstrate that the quantity of inputs for which drawback is claimed does not exceed the quantity of similar products exported, in whatever form, and that there is no drawback of import charges in excess of those originally levied on the imported inputs in question;

| 2. | where it is alleged that a substitution drawback system conveys a subsidy, the Commission must normally first proceed to determine whether the government of the exporting country has in place and applies a verification system or procedure. Where such a system or procedure is determined to be applied, the Commission shall normally then examine the verification procedures to see whether they are reasonable, effective for the purpose intended, and based on generally accepted commercial practices in the country of export. To the extent that the procedures are determined to meet this test and are effectively applied, no subsidy will be presumed to exist. It may be deemed necessary by the Commission to carry out, in accordance with Article 26(2), certain practical tests in order to verify information or to satisfy itself that the verification procedures are being effectively applied; |
| --- | --- |

2.

where it is alleged that a substitution drawback system conveys a subsidy, the Commission must normally first proceed to determine whether the government of the exporting country has in place and applies a verification system or procedure. Where such a system or procedure is determined to be applied, the Commission shall normally then examine the verification procedures to see whether they are reasonable, effective for the purpose intended, and based on generally accepted commercial practices in the country of export. To the extent that the procedures are determined to meet this test and are effectively applied, no subsidy will be presumed to exist. It may be deemed necessary by the Commission to carry out, in accordance with Article 26(2), certain practical tests in order to verify information or to satisfy itself that the verification procedures are being effectively applied;

| 3. | where there are no verification procedures, where they are not reasonable, or where such procedures are instituted and considered reasonable but are found not to be actually applied or not to be applied effectively, there may be a subsidy. In such cases, further examination by the exporting country based on the actual transactions involved would need to be carried out to determine whether an excess payment occurred. If the Commission deems it necessary, a further examination may be carried out in accordance with point 2; |
| --- | --- |

3.

where there are no verification procedures, where they are not reasonable, or where such procedures are instituted and considered reasonable but are found not to be actually applied or not to be applied effectively, there may be a subsidy. In such cases, further examination by the exporting country based on the actual transactions involved would need to be carried out to determine whether an excess payment occurred. If the Commission deems it necessary, a further examination may be carried out in accordance with point 2;

| 4. | the existence of a substitution drawback provision under which exporters are allowed to select particular import shipments on which drawback is claimed should not of itself be considered to convey a subsidy; |
| --- | --- |

4.

the existence of a substitution drawback provision under which exporters are allowed to select particular import shipments on which drawback is claimed should not of itself be considered to convey a subsidy;

| 5. | an excess drawback of import charges within the meaning of point (i) of Annex I would be deemed to exist where governments paid interest on any monies refunded under their drawback schemes, to the extent of the interest actually paid or payable. |
| --- | --- |

5.

an excess drawback of import charges within the meaning of point (i) of Annex I would be deemed to exist where governments paid interest on any monies refunded under their drawback schemes, to the extent of the interest actually paid or payable.

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ANNEX IV

(This Annex reproduces Annex 2 to the Agreement on Agriculture. Any terms or expressions which are not explained herein or which are not self-explanatory are to be interpreted in the context of that Agreement.)

DOMESTIC SUPPORT: THE BASIS OF EXEMPTION FROM THE REDUCTION COMMITMENTS

1.   Domestic support measures for which exemption from the reduction commitments is claimed shall meet the fundamental requirement that they have no, or at most minimal, trade-distorting effects or effects on production. Accordingly, all measures for which exemption is claimed shall conform to the following basic criteria:

| (a) | the support in question shall be provided through a publicly-funded government programme (including government revenue foregone) not involving transfers from consumers; and |
| --- | --- |

(a)

the support in question shall be provided through a publicly-funded government programme (including government revenue foregone) not involving transfers from consumers; and

| (b) | the support in question shall not have the effect of providing price support to producers; |
| --- | --- |

(b)

the support in question shall not have the effect of providing price support to producers;

plus policy-specific criteria and conditions as set out below.

Government service programmes

2.   General services

Policies in this category involve expenditures (or revenue foregone) in relation to programmes which provide services or benefits to agriculture or the rural community. They shall not involve direct payments to producers or processors. Such programmes, which include but are not restricted to the following list, shall meet the general criteria in point 1 and policy-specific conditions where set out below:

| (a) | research, including general research, research in connection with environmental programmes, and research programmes relating to particular products; |
| --- | --- |

(a)

research, including general research, research in connection with environmental programmes, and research programmes relating to particular products;

| (b) | pest and disease control, including general and product-specific pest and disease control measures, such as early-warning systems, quarantine and eradication; |
| --- | --- |

(b)

pest and disease control, including general and product-specific pest and disease control measures, such as early-warning systems, quarantine and eradication;

| (c) | training services, including both general and specific training facilities; |
| --- | --- |

(c)

training services, including both general and specific training facilities;

| (d) | extension and advisory services, including the provision of means to facilitate the transfer of information and the results of research to producers and consumers; |
| --- | --- |

(d)

extension and advisory services, including the provision of means to facilitate the transfer of information and the results of research to producers and consumers;

| (e) | inspection services, including general inspection services and the inspection of particular products for health, safety, grading or standardisation purposes; |
| --- | --- |

(e)

inspection services, including general inspection services and the inspection of particular products for health, safety, grading or standardisation purposes;

| (f) | marketing and promotion services, including market information, advice and promotion relating to particular products but excluding expenditure for unspecified purposes that could be used by sellers to reduce their selling price or confer a direct economic benefit to purchasers; and |
| --- | --- |

(f)

marketing and promotion services, including market information, advice and promotion relating to particular products but excluding expenditure for unspecified purposes that could be used by sellers to reduce their selling price or confer a direct economic benefit to purchasers; and

| (g) | infrastructural services, including: electricity reticulation, roads and other means of transport, market and port facilities, water supply facilities, dams and drainage schemes, and infrastructural works associated with environmental programmes. In all cases the expenditure shall be directed to the provision or construction of capital works only, and shall exclude the subsidised provision of on-farm facilities other than for the reticulation of generally available public utilities. It shall not include subsidies to inputs or operating costs, or preferential user charges. |
| --- | --- |

(g)

infrastructural services, including: electricity reticulation, roads and other means of transport, market and port facilities, water supply facilities, dams and drainage schemes, and infrastructural works associated with environmental programmes. In all cases the expenditure shall be directed to the provision or construction of capital works only, and shall exclude the subsidised provision of on-farm facilities other than for the reticulation of generally available public utilities. It shall not include subsidies to inputs or operating costs, or preferential user charges.

3.   Public stockholding for food security purposes (1)

Expenditures (or revenue foregone) in relation to the accumulation and holding of stocks of products which form an integral part of a food security programme identified in national legislation. This may include government aid to private storage of products as part of such a programme.

The volume and accumulation of such stocks shall correspond to predetermined targets related solely to food security. The process of stock accumulation and disposal shall be financially transparent. Food purchases by the government shall be made at current market prices and sales from food security stocks shall be made at no less than the current domestic market price for the product and quality in question.

4.   Domestic food aid (2)

Expenditure (or revenue foregone) in relation to the provision of domestic food aid to sections of the population in need.

Eligibility to receive the food aid shall be subject to clearly-defined criteria related to nutritional objectives. Such aid shall be in the form of direct provision of food to those concerned or the provision of means to allow eligible recipients to buy food either at market or at subsidised prices. Food purchases by the government shall be made at current market prices and the financing and administration of the aid shall be transparent.

5.   Direct payments to producers

Support provided through direct payments (or revenue foregone, including payments in kind) to producers for which exemption from reduction commitments as claimed shall meet the basic criteria set out in point 1, plus specific criteria applying to individual types of direct payment as set out in points 6 to 13. Where exemption from reduction is claimed for any existing or new type of direct payment other than those specified in points 6 to 13, it shall conform to criteria set out in points 6(b) to (e), in addition to the general criteria set out in point 1.

6.   Decoupled income support

| (a) | Eligibility for such payments shall be determined by clearly-defined criteria such as income, status as a producer or landowner, factor use or production level in a defined and fixed base period. |
| --- | --- |

(a)

Eligibility for such payments shall be determined by clearly-defined criteria such as income, status as a producer or landowner, factor use or production level in a defined and fixed base period.

| (b) | The amount of such payments in any given year shall not be related to, or based on, the type or volume of production (including livestock units) undertaken by the producer in any year after the base period. |
| --- | --- |

(b)

The amount of such payments in any given year shall not be related to, or based on, the type or volume of production (including livestock units) undertaken by the producer in any year after the base period.

| (c) | The amount of such payments in any given year shall not be related to, or based on, the prices, domestic or international, applying to any production undertaken in any year after the base period. |
| --- | --- |

(c)

The amount of such payments in any given year shall not be related to, or based on, the prices, domestic or international, applying to any production undertaken in any year after the base period.

| (d) | The amount of such payments in any given year shall not be related to, or based on, the factors of production employed in any year after the base period. |
| --- | --- |

(d)

The amount of such payments in any given year shall not be related to, or based on, the factors of production employed in any year after the base period.

| (e) | No production shall be required in order to receive such payments. |
| --- | --- |

(e)

No production shall be required in order to receive such payments.

7.   Government financial participation in income insurance and income safety-net programmes

| (a) | Eligibility for such payments shall be determined by an income loss, taking into account only income derived from agriculture, which exceeds 30 % of average gross income or the equivalent in net income terms (excluding any payments from the same or similar schemes) in the preceding three-year period or a three-year average based on the preceding five-year period, excluding the highest and the lowest entry. Any producer meeting this condition shall be eligible to receive the payments. |
| --- | --- |

(a)

Eligibility for such payments shall be determined by an income loss, taking into account only income derived from agriculture, which exceeds 30 % of average gross income or the equivalent in net income terms (excluding any payments from the same or similar schemes) in the preceding three-year period or a three-year average based on the preceding five-year period, excluding the highest and the lowest entry. Any producer meeting this condition shall be eligible to receive the payments.

| (b) | The amount of such payments shall compensate for less than 70 % of the producer's income loss in the year the producer becomes eligible to receive this assistance. |
| --- | --- |

(b)

The amount of such payments shall compensate for less than 70 % of the producer's income loss in the year the producer becomes eligible to receive this assistance.

| (c) | The amount of any such payments shall relate solely to income; it shall not relate to the type or volume of production (including livestock units) undertaken by the producer; or to the prices, domestic or international, applying to such production; or to the factors of production employed. |
| --- | --- |

(c)

The amount of any such payments shall relate solely to income; it shall not relate to the type or volume of production (including livestock units) undertaken by the producer; or to the prices, domestic or international, applying to such production; or to the factors of production employed.

| (d) | Where a producer receives in the same year payments pursuant to this point and pursuant to point 8 (relief from natural disasters), the total of such payments shall be less than 100 % of the producer's total loss. |
| --- | --- |

(d)

Where a producer receives in the same year payments pursuant to this point and pursuant to point 8 (relief from natural disasters), the total of such payments shall be less than 100 % of the producer's total loss.

8.   Payments (made either directly or by way of a government financial participation in crop insurance schemes) for relief from natural disasters

| (a) | Eligibility for such payments shall arise only following a formal recognition by government authorities that a natural or like disaster (including disease outbreaks, pest infestations, nuclear accidents, and war on the territory of the Member concerned) has occurred or is occurring; and shall be determined by a production loss which exceeds 30 % of the average of production in the preceding three-year period or a three-year average based on the preceding five-year period, excluding the highest and the lowest entry. |
| --- | --- |

(a)

Eligibility for such payments shall arise only following a formal recognition by government authorities that a natural or like disaster (including disease outbreaks, pest infestations, nuclear accidents, and war on the territory of the Member concerned) has occurred or is occurring; and shall be determined by a production loss which exceeds 30 % of the average of production in the preceding three-year period or a three-year average based on the preceding five-year period, excluding the highest and the lowest entry.

| (b) | Payments made following a disaster shall be applied only in respect of losses of income, livestock (including payments in connection with the veterinary treatment of animals), land or other production factors due to the natural disaster in question. |
| --- | --- |

(b)

Payments made following a disaster shall be applied only in respect of losses of income, livestock (including payments in connection with the veterinary treatment of animals), land or other production factors due to the natural disaster in question.

| (c) | Payments shall compensate for not more than the total cost of replacing such losses and shall not require or specify the type or quantity of future production. |
| --- | --- |

(c)

Payments shall compensate for not more than the total cost of replacing such losses and shall not require or specify the type or quantity of future production.

| (d) | Payments made during a disaster shall not exceed the level required to prevent or alleviate further loss as defined in criterion set out in point (b). |
| --- | --- |

(d)

Payments made during a disaster shall not exceed the level required to prevent or alleviate further loss as defined in criterion set out in point (b).

| (e) | Where a producer receives in the same year payments pursuant to this point and pursuant to point 7 (income insurance and income safety-net programmes), the total of such payments shall be less than 100 % of the producer's total loss. |
| --- | --- |

(e)

Where a producer receives in the same year payments pursuant to this point and pursuant to point 7 (income insurance and income safety-net programmes), the total of such payments shall be less than 100 % of the producer's total loss.

9.   Structural adjustment assistance provided through producer retirement programmes

| (a) | Eligibility for such payments shall be determined by reference to clearly defined criteria in programmes designed to facilitate the retirement of persons engaged in marketable agricultural production, or their movement to non-agricultural activities. |
| --- | --- |

(a)

Eligibility for such payments shall be determined by reference to clearly defined criteria in programmes designed to facilitate the retirement of persons engaged in marketable agricultural production, or their movement to non-agricultural activities.

| (b) | Payments shall be conditional upon the total and permanent retirement of the recipients from marketable agricultural production. |
| --- | --- |

(b)

Payments shall be conditional upon the total and permanent retirement of the recipients from marketable agricultural production.

10.   Structural adjustment assistance provided through resource retirement programmes

| (a) | Eligibility for such payments shall be determined by reference to clearly defined criteria in programmes designed to remove land or other resources, including livestock, from marketable agricultural production. |
| --- | --- |

(a)

Eligibility for such payments shall be determined by reference to clearly defined criteria in programmes designed to remove land or other resources, including livestock, from marketable agricultural production.

| (b) | Payments shall be conditional upon the retirement of land from marketable agricultural production for a minimum of three years, and in the case of livestock on its slaughter or definitive permanent disposal. |
| --- | --- |

(b)

Payments shall be conditional upon the retirement of land from marketable agricultural production for a minimum of three years, and in the case of livestock on its slaughter or definitive permanent disposal.

| (c) | Payments shall not require or specify any alternative use for such land or other resources which involves the production of marketable agricultural products. |
| --- | --- |

(c)

Payments shall not require or specify any alternative use for such land or other resources which involves the production of marketable agricultural products.

| (d) | Payments shall not be related to either type or quantity of production or to the prices, domestic or international, applying to production undertaken using the land or other resources remaining in production. |
| --- | --- |

(d)

Payments shall not be related to either type or quantity of production or to the prices, domestic or international, applying to production undertaken using the land or other resources remaining in production.

11.   Structural adjustment assistance provided through investment aids

| (a) | Eligibility for such payments shall be determined by reference to clearly-defined criteria in government programmes designed to assist the financial or physical restructuring of a producer's operations in response to objectively demonstrated structural disadvantages. Eligibility for such programmes may also be based on a clearly defined government programme for the reprivatisation of agricultural land. |
| --- | --- |

(a)

Eligibility for such payments shall be determined by reference to clearly-defined criteria in government programmes designed to assist the financial or physical restructuring of a producer's operations in response to objectively demonstrated structural disadvantages. Eligibility for such programmes may also be based on a clearly defined government programme for the reprivatisation of agricultural land.

| (b) | The amount of such payments in any given year shall not be related to, or based on, the type or volume of production (including livestock units) undertaken by the producer in any year after the base period other than as provided for under criterion (e). |
| --- | --- |

(b)

The amount of such payments in any given year shall not be related to, or based on, the type or volume of production (including livestock units) undertaken by the producer in any year after the base period other than as provided for under criterion (e).

| (c) | The amount of such payments in any given year shall not be related to, or based on, the prices, domestic or international, applying to any production undertaken in any year after the base period. |
| --- | --- |

(c)

The amount of such payments in any given year shall not be related to, or based on, the prices, domestic or international, applying to any production undertaken in any year after the base period.

| (d) | The payments shall be given only for the period of time necessary for the realisation of the investment in respect of which they are provided. |
| --- | --- |

(d)

The payments shall be given only for the period of time necessary for the realisation of the investment in respect of which they are provided.

| (e) | The payments shall not mandate or in any way designate the agricultural products to be produced by the recipients except to require them not to produce a particular product. |
| --- | --- |

(e)

The payments shall not mandate or in any way designate the agricultural products to be produced by the recipients except to require them not to produce a particular product.

| (f) | The payments shall be limited to the amount required to compensate for the structural disadvantage. |
| --- | --- |

(f)

The payments shall be limited to the amount required to compensate for the structural disadvantage.

12.   Payments under environmental programmes

| (a) | Eligibility for such payments shall be determined as part of a clearly-defined government environmental or conservation programme and be dependent on the fulfilment of specific conditions under the government programme, including conditions related to production methods or inputs. |
| --- | --- |

(a)

Eligibility for such payments shall be determined as part of a clearly-defined government environmental or conservation programme and be dependent on the fulfilment of specific conditions under the government programme, including conditions related to production methods or inputs.

| (b) | The amount of payment shall be limited to the extra costs or loss of income involved in complying with the government programme. |
| --- | --- |

(b)

The amount of payment shall be limited to the extra costs or loss of income involved in complying with the government programme.

13.   Payments under regional assistance programmes

| (a) | Eligibility for such payments shall be limited to producers in disadvantaged regions. Each such region must be a clearly designated contiguous geographical area with a definable economic and administrative identity, considered as disadvantaged on the basis of neutral and objective criteria clearly spelt out in a law or regulation and indicating that the region's difficulties arise out of more than temporary circumstances. |
| --- | --- |

(a)

Eligibility for such payments shall be limited to producers in disadvantaged regions. Each such region must be a clearly designated contiguous geographical area with a definable economic and administrative identity, considered as disadvantaged on the basis of neutral and objective criteria clearly spelt out in a law or regulation and indicating that the region's difficulties arise out of more than temporary circumstances.

| (b) | The amount of such payments in any given year shall not be related to, or based on, the type or volume of production (including livestock units) undertaken by the producer in any year after the base period other than to reduce that production. |
| --- | --- |

(b)

The amount of such payments in any given year shall not be related to, or based on, the type or volume of production (including livestock units) undertaken by the producer in any year after the base period other than to reduce that production.

| (c) | The amount of such payments in any given year shall not be related to, or based on, the prices, domestic or international, applying to any production undertaken in any year after the base period. |
| --- | --- |

(c)

The amount of such payments in any given year shall not be related to, or based on, the prices, domestic or international, applying to any production undertaken in any year after the base period.

| (d) | Payments shall be available only to producers in eligible regions, but generally available to all producers within such regions. |
| --- | --- |

(d)

Payments shall be available only to producers in eligible regions, but generally available to all producers within such regions.

| (e) | Where related to production factors, payments shall be made at a degressive rate above a threshold level of the factor concerned. |
| --- | --- |

(e)

Where related to production factors, payments shall be made at a degressive rate above a threshold level of the factor concerned.

| (f) | The payments shall be limited to the extra costs or loss of income involved in undertaking agricultural production in the prescribed area. |
| --- | --- |

(f)

The payments shall be limited to the extra costs or loss of income involved in undertaking agricultural production in the prescribed area.

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(1)  For the purpose of point 3 of this Annex, governmental stockholding programmes for food security purposes in developing countries whose operation is transparent and conducted in accordance with officially published objective criteria or guidelines shall be considered to be in conformity with the provisions of this point, including programmes under which stocks of foodstuffs for food security purposes are acquired and released at administered prices, provided that the difference between the acquisition price and the external reference price is accounted for in the AMS.

(2)  For the purposes of points 3 and 4 of this Annex, the provision of foodstuffs at subsidised prices with the objective of meeting food requirements of urban and rural poor in developing countries on a regular basis at reasonable prices shall be considered to be in conformity with the provisions of this point.

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ANNEX V

REPEALED REGULATION WITH THE AMENDMENT THERETO

| Council Regulation (EC) No 597/2009
  (OJ L 188, 18.7.2009, p. 93) | |
| --- | --- |
| Regulation (EU) No 37/2014 of the European Parliament and of the Council
  (OJ L 18, 21.1.2014, p. 1) | Only point 18 of the Annex |

Council Regulation (EC) No 597/2009

(OJ L 188, 18.7.2009, p. 93)

Regulation (EU) No 37/2014 of the European Parliament and of the Council

(OJ L 18, 21.1.2014, p. 1)

Only point 18 of the Annex

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ANNEX VI

CORRELATION TABLE

| Regulation (EC) No 597/2009 | This Regulation |
| --- | --- |
| Articles 1 to 11 | Articles 1 to 11 |
| Article 12(1) to (4) | Article 12(1) to (4) |
| Article 12(6) | Article 12(5) |
| Articles 13 and 14 | Articles 13 and 14 |
| Article 15(1) | Article 15(1) |
| Article 15(2), first sentence | Article 15(2), first subparagraph |
| Article 15(2), second sentence | Article 15(2), second subparagraph |
| Article 15(3) | Article 15(3) |
| Articles 16 to 27 | Articles 16 to 27 |
| Article 28(1) to (4) | Article 28(1) to (4) |
| Article 28(5), first sentence | Article 28(5), first subparagraph |
| Article 28(5), second sentence | Article 28(5), second subparagraph |
| Article 28(6) | Article 28(6) |
| Articles 29 to 33 | Articles 29 to 33 |
| Article 33a | Article 34 |
| Article 34 | Article 35 |
| Article 35 | Article 36 |
| Annexes I to IV | Annexes I to IV |
| Annex V | — |
| Annex VI | — |
| — | Annex V |
| — | Annex VI |

Regulation (EC) No 597/2009

This Regulation

Articles 1 to 11

Articles 1 to 11

Article 12(1) to (4)

Article 12(1) to (4)

Article 12(6)

Article 12(5)

Articles 13 and 14

Articles 13 and 14

Article 15(1)

Article 15(1)

Article 15(2), first sentence

Article 15(2), first subparagraph

Article 15(2), second sentence

Article 15(2), second subparagraph

Article 15(3)

Article 15(3)

Articles 16 to 27

Articles 16 to 27

Article 28(1) to (4)

Article 28(1) to (4)

Article 28(5), first sentence

Article 28(5), first subparagraph

Article 28(5), second sentence

Article 28(5), second subparagraph

Article 28(6)

Article 28(6)

Articles 29 to 33

Articles 29 to 33

Article 33a

Article 34

Article 34

Article 35

Article 35

Article 36

Annexes I to IV

Annexes I to IV

Annex V

—

Annex VI

—

—

Annex V

—

Annex VI

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