COUNCIL REGULATION (EC) No 519/94 of 7 March 1994 on common rules for imports from certain third countries and repealing Regulations (EEC) Nos 1765/82, 1766/82 and 3420/83
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 113 thereof,
Having regard to the instruments establishing common organization of agricultural markets and to the instruments concerning processed agricultural products adopted in pursuance of Article 235 of the Treaty, in particular the provisions of those instruments which allow for derogation from the general principle that all quantitative restrictions or measures having equivalent effect may be replaced solely by the measures provided for in those same instruments,
Having regard to the proposal from the Commission,
Whereas the common commercial policy should be based on uniform principles; whereas the common rules applicable to imports from certain third countries under Council Regulation (EEC) No 1765/82 of 30 June 1982 on common rules for imports from State-trading countries (1), Council Regulation (EEC) No 1766/82 of 30 June 1982 on common rules for imports from the People's Republic of China (2) and Council Regulation (EEC) No 3420/83 of 14 November 1983 on import arrangements for products originating in State-trading countries, not liberalized at Community level (3) form an important aspect of the policy; however, they still allow exceptions and derogations enabling Member States to continue applying national measures to imports of products originating in the above third countries, so that the policy needs to be completed;
Whereas under Article 7a of the Treaty, the internal market comprises since 1 January 1993 of an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured;
Whereas completion of the common commercial policy as it pertains to rules for imports is a necessary complement to the completion of the internal market and is the only means of ensuring that the rules applying to the Community's trade with third countries correctly reflect the integration of the markets;
Whereas in order to achieve greater uniformity in the rules for imports it is necessary to eliminate the exceptions and derogations resulting from the remaining national commercial policy measures, and in particular the quantitative restrictions maintained by Member States under Regulation (EEC) No 3420/83; whereas this uniformity must be achieved by laying down, as far as possible given the particular features of the economic system in the third countries in question, provisions similar to those applied under the common rules for other third countries;
Whereas the liberalization of imports, namely the absence of any quantitative restrictions, must therefore form the starting point for the Community rules;
Whereas, however, for a limited number of products originating in the People's Republic of China, owing to the sensitivity of certain sectors of Community industry, quantitative quotas and surveillance measures applicable at Community level should be incorporated in this Regulation; and whereas a procedure should be laid down for reviewing and checking these measures in order to adapt them to changes in the situation;
Whereas, in the case of other products, the Commission must examine import terms and conditions, import trends, the various aspects of the economic and commercial situation, and the measures, if any, to be taken;
Whereas for those products, it may become apparent that there should be Community surveillance over certain of these imports;
Whereas it, is for the Commission and the Council to adopt the safeguard measures called for by the interests of the Community with due regard for existing international obligations;
Whereas surveillance or safeguard measures confined to one or more regions of the Community may nevertheless prove more suitable than measures applying to the whole Community; whereas, however, such measures should be authorized only exceptionally and where no alternative exists; whereas it is necessary to ensure that such measures are temporary and cause the minimum of disruption to the operation of the internal market;
Whereas if Community surveillance is applied, release for free circulation of the products concerned must be made subject to presentation of an import document meeting uniform criteria; whereas that document must, on simple application by the importer, be endorsed by the authorities of the Member States within a certain period but without the importer thereby acquiring any right to import; whereas the document must therefore be valid only during such period as the import rules remain unchanged;
Whereas it is in the interests of the Community that the Member States and the Commission should make as full as possible an exchange of information resulting from Community surveillance;
Whereas experience has shown that it is necessary to adopt more precise criteria for assessing possible injury and to introduce an investigation while still allowing the Commission to introduce appropriate measures in urgent cases;
Whereas, to this end, more detailed provisions should be introduced on the opening of investigations, on the checks and inspections required, on the hearing of those concerned, the treatment of information obtained and the criteria for assessing injury;
Whereas the provisions on the investigations introduced by this Regulation do not prejudice Community or national rules concerning professional secrecy;
Whereas it is also necessary to set time limits for the initiation of investigations and for determinations as to whether, or not, measures are appropriate, with a view to ensuring that such determinations are made quickly, in order to increase legal certainty for the economic operators concerned;
Whereas in the interests of uniformity in rules for imports, the formalities to be carried out by importers should be simplified and must be identical regardless of the place where the goods clear customs; whereas it is therefore desirable to provide that any formalities should be carried out using forms corresponding to the specimen annexed to the Regulation;
Whereas import documents issued in connection with Community surveillance measures should be valid throughout the Community irrespective of the Member State of issue;
Whereas the set of import rules as set out, no longer justify maintaining two separate sets of Community rules for State-trading countries and the People's Republic of China;
Whereas the consultations provided for in Council Regulation (EEC) No 2616/85 of 16 September 1985 concerning the conclusion of a Trade and Economic Cooperation Agreement between the European Economic Community and the People's Republic of China (4) have been held;
Whereas the textile products falling under Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols or other arrangements, or by other specific Community import rules (5) are subject to specific treatment at Community and international level; whereas they should therefore be completely excluded from the scope of this Regulation;
Whereas the provisions of this Regulation are applicable without prejudice to Articles 77, 81, 244, 249 and 280 of the Act of Accession of Spain and Portugal;
Whereas Regulation (EEC) Nos 1765/82, 1766/82 and 3420/83 should consequently be repealed,
HAS ADOPTED THIS REGULATION:
TITLE I General principles
Article 1
1. This Regulation applies to imports of products covered by the Treaty and originating in the third countries referred to in Annex I, with the exception of textile products covered by Regulation (EC) No 517/94.
2. Imports into the Community of the products referred to in paragraph 1 shall take place freely and so shall not be subject to any quantitative restrictions, without prejudice to:
- the measures which may be taken under Title V;
- the quantitative quotas referred to in Annex II.
3. Imports into the Community of the products referred to in Annex III shall be subject to Community surveillance in accordance with the detailed rules laid down in Article 10.
4. At the request of a Member State or on the Commission's initiative, Annexes II and III may form the subject of consultations within the Committee provided for in Article 4.
At the close of these consultations, the Commission may propose to the Council, in accordance with the procedure laid down in Article 16, the measures required to adapt Annexes II and III, as laid down in Title III and, where appropriate, in Titles IV and V of this Regulation.
TITLE II Community information and consultation procedure
Article 2
The Commission shall be informed by the Member States should trends in imports appear to call for surveillance of safeguard measures. This information shall contain the available evidence on the basis of the criteria laid down in Article 8. The Commission shall pass on this information to all the Member States forthwith.
Article 3
Consultations may be held, either at the request of a Member State or on the initiative of the Commission. They shall take place within eight working days following receipt by the Commission of the information provided for in Article 2 and, in any event, before the introduction of any Community surveillance of safeguard measure.
Article 4
1. Consultation shall take place within an advisory committee, hereinafter called 'the Committee', made up of representatives of each Member State with a representative of the Commission as chairman.
2. The Committee shall meet when convened by its chairman. He shall provide the Member States, as promptly as possible, with all relevant information.
3. Consultations shall cover in particular:
(a) terms and conditions of importation, import trends, and the various aspects of the economic and commercial situation as regards the product in question, in particular in the context of the examination of Annexes II and III;
(b) matters concerning the administration of the trade agreements between the Community and the third countries referred to in Annex I;
(c) the measures, if any, to be taken.
4. Consultations may be in writing if necessary. The Commission shall in this event inform the Member States, which may express their opinion or request oral consultations within a period of five to eight working days to be decided by the Commission.
TITLE III Community investigation procedure
Article 5
1. Where, after consultation, it is apparent to the Commission that there is sufficient evidence to justify an investigation, the Commission shall:
(a) initiate an investigation within one month of receipt of information from a Member State and publish a notice in the Official Journal of the European Communities; such notice shall give a summary of the information received, and provide that all relevant information is to be communicated to the Commission; it shall state the period within which interested parties may make known 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 orally by the Commission in accordance with paragraph 4;
(b) commence the investigation, acting in cooperation with the Member States.
2. The Commission shall seek all information it deems to be necessary and, where it considers it appropriate, after consulting the Committee, endeavour to check this information with importers, traders, agents, producers, trade associations and organizations.
The Commission shall be assisted in this task by staff of the Member State on whose territory these checks are being carried out, provided this Member State so wishes.
Interested parties which have made themselves known in accordance with paragraph (1) (a), as well as the representatives of the exporting country, may inspect all information made available to the Commission within the framework of the investigation, as distinct from internal documents prepared by the authorities of the Community or its Member States, provided that it is relevant to the defence of their interests and not confidential within the meaning of Article 7 and that it is used by the Commission in the investigation. To this end, they shall address a written request to the Commission indicating the information required.
3. The Member States shall supply the Commission, at its request and following procedures laid down by it, with the information at their disposal on developments in the market of the product being investigated.
4. The Commission may hear the interested parties. Such parties must be heard where they have applied in writing within the period laid down in the notice published in the Official Journal of the European Communities, showing that they are actually likely to be affected by the outcome of the investigations and that there are special reasons for them to be heard orally.
5. Where information is not supplied within the time limits set by this Regulation or by the Commission under this Regulation, or the investigation is significantly impeded, findings may be made on the basis of the facts available. Where the Commisison finds that any interested party or third party has supplied it with false or misleading information, it shall disregard the information and may make use of facts available.
6. Where it appears to the Commission, after the consultation referred to in paragraph 1, that there is insufficient evidence to justify an investigation, it shall inform the Member States of its decision within one month of receipt of the information from the Member States.
Article 6
1. At the end of the investigation, the Commission shall submit a report on the results to the Committee.
2. Where, within nine months of the initiation of the investigation, the Commission considers that no Community surveillance or safeguard measures are necessary, the investigation shall be terminated, within one month, after consulting the Committee. The decision to terminate the investigation, stating the main conclusions of the investigation and a summary of the reasons therefor, shall be published in the Official Journal of the European Communities.
3. If the Commission considers that Community surveillance or safeguard measures are necessary, it shall take the necessary decisions in accordance with Titles IV and V, no later than nine months from the initiation of the investigation. In exceptional circumstances, this time limit may be extended by a further maximum period of two months; the Commission shall then publish a notice in the Official Journal of the European Communities setting forth the duration of the extension and a summary of the reasons therefor.
4. The provisions of this Title shall not preclude the taking, at any time, of surveillance measures in accordance with Articles 9 to 14 or, where a critical situation, in which any delay would cause injury which it would be difficult to remedy, calls for immediate intervention, safeguard measures in accordance with Articles 15 to 17.
The Commission shall immediately take the investigation measures it considers to be still necessary. The results of the investigation shall be used to re-examine the measures taken.
Article 7
1. Information received in pursuance of this Regulation shall be used only for the purpose for which it was requested.
2. (a) Neither the Council, nor the Commission, nor the Member States, nor the officials of any of these, shall reveal any information of a confidential nature received in pursuance of this Regulation, or any information provided on a confidential basis, without specific permission from the supplier of such information.
(b) Each request for confidentiality shall state the reasons why the information is confidential.
However, it is appears that a request for confidentiality is unjustified and if the supplier of the information wishes neither to make it public nor to authorize its disclosure in general terms or in the form of a summary, the information concerned may be disregarded.
3. Information will in any case be considered to be confidential if its disclosure is likely to have a significantly adverse effect upon the supplier or the source of such information.
4. The preceding paragraphs shall not preclude reference by the Community authorities to general information and in particular to reasons on which decisions taken in pursuance of this Regulation are based. These authorities must, however, take into account the ligitmate interests of the legal and natural persons concerned that their business secrets should not be divulged.
Article 8
1. The examination of the trend of imports, of the conditions in which they take place and of the serious injury or threat of serious injury to Community producers resulting from such imports, shall cover in particular the following factors. -
(a) the volume of imports, in particular where there has been a significant increase, either in absolute terms or relative to production or consumption in the Community;
(b) the price of the imports, in particular where there has been a significant price undercutting as compared with the price of a like product in the Community;
(c) the consequent impact on the Community producers of similar or directly competitive products as indicated by trends in certain economic factors such as:
- production,
- utilization of capacity,
- stocks,
- sales,
- market share,
- prices (i.e. depression of prices or prevention of price increases which would normally have occurred),
- profits,
- return on capital employed,
- cash flow,
- employment.
2. In conducting the investigation, the Commission shall take account of the particular economic system of the countries referred to in Annex I.
3. Where a threat of serious injury is alleged the Commission shall also examine whether it is clearly foreseeable that a particular situation is likely to develop into actual injury. In this regard account may be taken of factors such as:
(a) the rate of increase of the exports to the Community;
(b) the export capacity in the country of origin or export, already in existence or which will be operational in the foreseeable future and the likelihood that the resulting exports will be to the Community.
TITLE IV Surveillance
Article 9
1. Where the Community's interests so require, the Commission may, at the request of a Member State or on its own initiative:
(a) decide to introduce retrospective Community surveillance of certain imports, in accordance with the procedure laid down by the Commission;
(b) decide, for the purposes of monitoring the trend of these imports, to make certain imports subject to prior Community surveillance, in accordance with Article 10.
2. The surveillance measures shall have a limited period of validity. Unless otherwise stipulated they shall cease to be valid at the end of the second six-month period following the six months in which the measures were introduced.
Article 10
1. Products under prior Community surveillance may be put into free circulation only on production of an import document. Such document shall be endorsed by the competent authority designated by Member States, free of charge, for any quantity requested and within a maximum of five working days following receipt by the national competent authority of a declaration by any Community importer, regardless of his place of business in the Community. This declaration shall be deemed to be received by the national competent authority no later than three working days after submission, unless it is proven otherwise.
2. A form corresponding to the model given in Annex IV shall be used for the import document and the declaration by the importer.
Additional information to that provided in the aforementioned form may be required. Such information shall be set out in the decision to impose surveillance.
3. The import document shall be valid throughout the Community, regardless of the Member State of issue.
4. A finding that the unit price at which the transaction is effected exceeds that indicated in the import document by less than 5 % or that the total value or quantity of the products presented for importation exceeds the value or quantity given in the import document by less than 5 % shall not preclude the release for free circulation of the product in question. The Commission, having heard the opinions expressed in the Committee and taking account of the nature of the products and other special features of the transactions concerned, may fix a different percentage, which, however, should not normally exceed 10 %.
5. Import documents may be used only for such time as arrangements for the liberalization of imports remain in forced in respect of the transactions concerned. The said import documents may not in any event be used beyond the expiry of the period which will be laid down at the same time and by means of the same procedure as the imposition of surveillance, and which will take account of the nature of the products and other special features of the transactions.
6. Where the decision taken under Article 9 so requires, the origin of products under Community surveillance must be proved by a certificate of origin. This paragraph shall not prejudice other provisions concerning the production of any such certificate.
7. Where the product under prior Community surveillance is subject to regional safeguard measures in a Member State, the import authorization granted by that Member State may replace the import document.
Article 11
Where the Community's interests so require, the Commission may, at the request of a Member State or on its own initiative, if the situation referred to in Article 15 (1) is likely to arise:
- limit the period of validity of any import document required;
- make issue of this document subject to certain conditions and, as an exceptional measure, subject to insertion of a revocation clause, or, with the frequency and for the length of time indicated by the Comission, to the prior information and consultation procedure referred to in Article 3.
Article 12
Where importation of a product has not been made subject to prior Community surveillance within a period of eight working days following the end of consultations, the Commission may introduce, in accordance with Article 17, surveillance confined to imports one or more regions of the Community.
Article 13
1. Products under regional surveillance may be put into free circulation in the region concerned only on production of an import document. Such document shall be endorsed by the competent authority designated by the Member State(s) concerned, free of charge, for any quantity requested and within a maximum of five working days following receipt by the national competent authority of a declaration by any Community importer, regardless of his place of business in the Community. This declaration shall be deemed to be received by the national competent authority no later than three working days after submission, unless it is proven otherwise. Import documents may be used only for such time as arrangements for the liberalization of imports remain in force in respect of the transactions concerned.
2. A form corresponding to the model given in Annex IV shall be used for the import document and the declaration by the importer.
Additional information to that provided in the aforementioned from may be required. Such information shall be set out in the decision to impose surveillance.
Article 14
1. Member States shall communicate to the Commission within the first ten days of each month in the case of Community or regional surveillance:
(a) in the case of prior surveillance, details of the sums of money (calculated on the basis of cif prices) and quantities of goods in respect of which import documents were issued or endorsed during the preceding period;
(b) in every case, details of imports during the period preceding the period referred to in subparagraph (a).
The information supplied by Member States shall be broken down by product and by country.
Different provisions may be laid down at the same time and by the same procedure as the surveillance arrangements.
2. Where the nature of the products or special circumstances so require, the Commission may, at the request of a Member State or on its own initiative, amend the timetables for submitting this information.
3. The Commission shall inform the Member States.
TITLE V Safeguard measures
Article 15
1. Where a product is imported into the Community in such greatly increased quantities or on such terms or conditions as to cause, or threaten to cause, serious injury to Community producers of like or directly competing products, the Commission, in order to safeguard the interests of the Community, may, acting at the request of a Member State or on its own initiative, alter the import rules for that product by providing that it may be put into free circulation only on production of an import authorization, the granting of which shall be governed by such provisions and subject to such limits as the Commission shall lay down.
2. The measures adopted shall be communicated forthwith to the Council and the Member States, they shall take effect immediately.
3. (a) The measures referred to in this Article shall apply to every product which is put into free circulation after their entry into force. In accordance with Article 17 they may be confined to one or more regions of the Community.
(b) However, such measures shall not prevent the release for free circulation of products already on their way to the Community provided that the destination of such products cannot be changed and that those products which, under Articles 10 and 13, may be put into free circulation only on production of an import document are in fact accompanied by such a document.
4. Where intervention by the Commission has been requested by a Member State, the Commission shall take a decision within a maximum of five working days of receipt of such a request.
5. Any decision taken by the Commission under this Article shall be communicated to the Council and to the Member States. Any Member States may, within one month following the day of communication, refer such decision to the Council.
6. If a Member State refers the decision taken by the Commission to the Council, the Council may, acting by a qualified majority, confirm, amended or revoke the decision of the Commission.
If within three months following referral of the matter to the Council the latter has not taken a decision, the measure taken by the Commission shall be deemed revoked.
Article 16
1. The Council may, in particular in the situation referred to in Article 15 (1), adopt appropriate measures. It shall act by a qualified majority on a proposal from the Commission.
2. Article 15 (3) shall apply.
Article 17
Where, on the basis, in particular, of the factors referred to in Article 8, it emerges that the conditions laid down for the adoption of measures under Title IV and Article 15 are met in one or more regions of the Community, the Commission, after having examined alternative solutions, may exceptionally authorize the application of surveillance or safeguard measures limited to the region(s) concerned if it considers that such measures applied at that level are more appropriate than measures applied throughout the Community.
These measures must be temporary and must disrupt the operation of the internal market as little as possible.
These measures shall be adopted in accordance with the procedures laid down in Articles 9 and 15 respectively.
Article 18
1. While any surveillance or safeguard measure applied in accordance with Titles IV and V is in operation, the consultations within the Committee provided for in Article 4 shall be held, either at the request of a Member State or on the initiative of the Commission. The purpose of such consultations shall be:
(a) to examine the effects of the measures;
(b) to ascertain whether its application is still necessary.
2. Where, as a result of the consultations referred to in paragraph 1, the Commission considers that any surveillance or safeguard measure referred to in Titles IV and V should be revoked or amended, it shall proceed as follows:
(a) where the Council has taken no decision on a measure taken by the Commission, the latter shall amend or revoke such measure forthwith and shall immediately deliver a report to the Council;
(b) in all other cases, the Commission shall propose to the Council that the measures adopted by the Council be revoked or amended. The Council shall act by a qualified majority.
Where this decision concerns regional measures of surveillance, it shall apply as from the sixth day following that of its publication in the Official Journal of the European Communities.
TITLE VI Final provisions
Article 19
1. This Regulation shall not preclude the fulfilment of obligations arising from special rules contained in agreements concluded between the Community and third countries.
2. (a) Without prejudice to other Community provisions, this Regulation shall not preclude the adoption or application by Member States:
(i) of prohibitions, quantitative restrictions or surveillance measures on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants, the protection of national treasures possessing artistic, historic or archaeological value, or the protection of industrial and commercial property;
(ii) of special formalities concerning foreign exchange;
(iii) of formalities introduced pursuant to international agreements in accordance with the Treaty.
(b) The Member States shall inform the Commission of the measures or formalities to be introduced or amended in accordance with this paragraph. In the event of extreme urgency, the national measures or formalities in question shall be communicated to the Commission immediately upon their adoption.
Article 20
1. This Regulation shall be without prejudice to the operation of the instruments establishing the common organization of agricultural markets or of Community or national administrative provisions derived therefrom or of the specific instruments adopted under Article 235 of the Treaty applicable to goods resulting from the processing of agricultural products; it shall operate by way of complement to those instruments.
2. However, in the case of products covered by the instruments referred to in paragraph 1, Articles 9 to 14 and 18 shall not apply to those in respect of which the Community rules on trade with third countries require the production of a licence or other import document.
Article 15, 17 and 18 shall not apply to those products in respect of which such rules make provision for the application of quantitative import restrictions.
Article 21
Until 31 December 1995, Spain and Portugal may maintain the quantitative restrictions on agricultural products referred to in Articles 77, 81, 244, 249 and 280 of the Act of Accession.
Article 22
For 1994, the level of the quotas referred to in Article 1 (2) shall be reduced in proportion to the period of application, as indicated in Annex II.
The following products shall not be subject to those quotas and may be put into free circulation in the Community:
- products already on their way to the Community on the date of publication of this Regulation in the Official Journal of the European Communities, provided that the destination of such products cannot be changed;
- products for which an import licence has been issued by the national competent authorities in conformity with the provisions of Title IV of Regulation (EEC) No 3420/83, and which are in fact accompanied by such licence.
The provisions of Council Regulation (EC) No 520/94 of 7 March 1994 establishing a Community procedure for administering quantitative quotas (6) are applicable to the quotas referred to in Annex II.
Article 23
Regulations (EEC) No 1765/82, (EEC) No 1766/82 and (EEC) No 3420/83 are hereby repealed. References to the repealed Regulations shall be understood as referring to this Regulation.
Article 24
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 15 March 1994.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 March 1994.