COUNCIL REGULATION (EC) No 625/2009
of 7 July 2009
on common rules for imports from certain third countries
(Codified version)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof,
Having regard to the instruments establishing the common organisation of agricultural markets and to the instruments concerning processed agricultural products adopted in pursuance of Article 308 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:
(1)
Council Regulation (EC) No 519/94 of 7 March 1994 on common rules for imports from certain third countries (1) has been substantially amended several times (2). In the interests of clarity and rationality the said Regulation should be codified.
(2)
The common commercial policy should be based on uniform principles.
(3)
Under Article 14 of the Treaty, the internal market comprises since 1 January 1993 an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.
(4)
Completion of the common commercial policy as it pertains to rules for imports 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.
(5)
Greater uniformity in the rules for imports should 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.
(6)
The common rules applicable to imports also apply to coal and steel products, without prejudice to any measures implementing an agreement relating specifically to such products.
(7)
The liberalisation of imports, namely the absence of any quantitative restrictions, should therefore form the starting point for the Community rules.
(8)
In the case of some products, the Commission should examine import terms and conditions, import trends, the various aspects of the economic and commercial situation, and the measures, if any, to be taken.
(9)
For those products, it may become apparent that there should be Community surveillance over certain of these imports.
(10)
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.
(11)
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. However, such measures should be authorised only exceptionally and where no alternative exists. It is necessary to ensure that such measures are temporary and cause the minimum of disruption to the operation of the internal market.
(12)
If Community surveillance is applied, release for free circulation of the products concerned should be made subject to presentation of a surveillance document meeting uniform criteria. That document should, on simple application by the importer, be issued by the authorities of the Member States within a certain period but without the importer thereby acquiring any right to import. The surveillance document should therefore be valid only during such period as the import rules remain unchanged.
(13)
In the interests of good administrative management and to assist Community operators, the content and layout of the surveillance document should be aligned as far as possible with the common import licence forms provided for in Commission Regulation (EC) No 738/94 of 30 March 1994 laying down certain rules for the implementation of Council Regulation (EC) No 520/94 establishing a Community procedure for administering quantitative quotas (3); Commission Regulation (EC) No 3168/94 of 21 December 1994 establishing in the field of application of Council Regulation (EC) No 517/94 on common rules for imports of textile products from third countries not covered by bilateral agreements, protocols or other arrangements or by other specific Community import rules a Community import licence (4); and Commission Regulation (EC) No 3169/94 of 21 December 1994 amending Annex III to Council Regulation (EEC) No 3030/93 on common rules for imports of certain textile products from third countries and establishing in the field of application of the Regulation a Community import licence (5), bearing in mind the technical characteristics of the surveillance document.
(14)
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.
(15)
It is necessary to adopt precise criteria for assessing possible injury and to introduce an investigation while still allowing the Commission to introduce appropriate measures in urgent cases.
(16)
To this end, 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.
(17)
The provisions on the investigations introduced by this Regulation do not prejudice Community or national rules concerning professional secrecy.
(18)
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.
(19)
In the interests of uniformity in rules for imports, the formalities to be carried out by importers should be simplified and should be identical regardless of the place where the goods clear customs. It is therefore desirable to provide that any formalities should be carried out using forms corresponding to the specimen annexed to this Regulation.
(20)
Surveillance documents issued in connection with Community surveillance measures should be valid throughout the Community, irrespective of the Member State of issue.
(21)
The textile products falling under Council 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 (6) are subject to specific treatment at Community and international levels. They should therefore be completely excluded from the scope of this Regulation,
HAS ADOPTED THIS REGULATION:
CHAPTER I
GENERAL PRINCIPLES
Article 1
1. This Regulation applies to imports of products 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 Chapter V.
CHAPTER II
COMMUNITY INFORMATION AND CONSULTATION PROCEDURE
Article 2
The Commission shall be informed by the Member States if trends in imports appear to call for surveillance or 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 Member States forthwith.
Article 3
1. Consultations may be held either at the request of a Member State or on the initiative of the Commission.
2. Consultations 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 or safeguard measure.
Article 4
1. Consultations shall take place within an advisory committee, hereinafter referred to as ‘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 import, import trends, and the various aspects of the economic and commercial situation as regards the product in question;
(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 conducted 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.
CHAPTER III
COMMUNITY INVESTIGATION PROCEDURE
Article 5
1. Where, after the consultations referred to in Articles 3 and 4, it is apparent to the Commission that there is sufficient evidence to justify an investigation, the Commission shall 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 Union. This notice shall:
(a)
give a summary of the information received, and provide that all relevant information is to be communicated to the Commission;
(b)
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;
(c)
state the period within which interested parties may apply to be heard orally by the Commission in accordance with paragraph 4.
The Commission shall 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 organisations.
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 the first subparagraph of paragraph 1, 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. 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 Union, 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 Commission 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 consultations 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 therefore, shall be published in the Official Journal of the European Union.
3. If the Commission considers that Community surveillance or safeguard measures are necessary, it shall take the necessary decisions in accordance with Chapters 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 Union setting forth the duration of the extension and a summary of the reasons therefore.
4. The provisions of this Chapter 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, 16 and 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. The Council, the Commission, the Member States and the officials of any of these, shall not 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.
3. Each request for confidentiality shall state the reasons why the information is confidential.
However, if it appears that a request for confidentiality is unjustified and if the supplier of the information wishes neither to make it public nor to authorise its disclosure in general terms or in the form of a summary, the information concerned may be disregarded.
4. Information shall 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.
5. Paragraphs 1 to 4 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 legitimate interests of the legal and natural persons concerned that their business secrets should not be divulged.
Article 8
1. Examination of the trend in 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,
-
utilisation 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.
CHAPTER 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 a surveillance document. That document shall be issued 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 an application by any Community importer, regardless of his place of business in the Community. That application 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. The surveillance document shall be made out on a form corresponding to the model in Annex II.
Except where the decision to impose surveillance provides otherwise, the importer’s application for a surveillance document shall contain only the following:
(a)
the full name and address of the applicant (including telephone and fax numbers and any number identifying the applicant to the competent national authority), plus the applicant’s VAT registration number if he is liable for VAT;
(b)
where appropriate, the full name and address of the declarant or of any representative appointed by the applicant (including telephone and fax numbers);
(c)
a description of the goods giving their:
-
trade name,
-
combined nomenclature code,
-
place of origin and place of consignment,
(d)
the quantity declared, in kilograms and, where appropriate, any other additional units (pairs, items, etc.);
(e)
the value of the goods, cif at Community frontier, in euro;
(f)
the following statement, dated and signed by the applicant, with the applicant’s name spelt out in capital letters:
‘I, the undersigned, certify that the information provided in this application is true and given in good faith, and that I am established in the Community.’
3. The surveillance 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 surveillance document by less than 5 % or that the total value or quantity of the products presented for import exceeds the value or quantity given in the surveillance 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. Surveillance documents may be used only for such time as arrangements for the liberalisation of imports remain in force in respect of the transactions concerned. The surveillance documents may not in any event be used beyond the expiry of the period which shall be laid down at the same time and by means of the same procedure as the imposition of surveillance, and which shall 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 proven 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 authorisation granted by that Member State may replace the surveillance document.
8. Surveillance document forms and extracts thereof shall be drawn up in duplicate, one copy, marked ‘Holder’s copy’ and bearing the number 1, to be issued to the applicant, and the other, marked ‘Copy for the competent authority’ and bearing the number 2, to be kept by the authority issuing the document. For administrative purposes the competent authority may add supplementary copies to form 2.
9. Forms shall be printed on white paper free of mechanical pulp, dressed for writing and weighing between 55 and 65 grams per square metre. Their size shall be 210 × 297 mm. The type space between the lines shall be 4,24 mm (one sixth of an inch). The layout of the forms shall be followed precisely. Both sides of copy No 1, which is the surveillance document itself, shall in addition have a yellow printed guilloche pattern background so as to reveal any falsification by mechanical or chemical means.
10. Member States shall be responsible for having the forms printed. The forms may also be printed by printers appointed by the Member State in which they are established. In the latter case, reference to the appointment by the Member State must appear on each form. Each form shall bear an indication of the printer’s name and address or a mark enabling the printer to be identified.
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 surveillance document required,
-
make issue of that 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 Commission, to the prior information and consultation procedure referred to in Article 3.
Article 12
Where import of a product has not been made subject to prior Community surveillance within a period of eight working days following the end of the consultations referred to in Article 3, the Commission may introduce, in accordance with Article 17, surveillance confined to imports into 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 a surveillance document. That document shall be issued 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 of receipt by the national competent authority of an application by any Community importer, regardless of his place of business in the Community. That application shall be deemed to have been received by the national competent authority no later than three working days after submission, unless it is proved otherwise. Surveillance documents may be used only for such time as arrangements for imports remain liberalised in respect of the transactions concerned.
2. Article 10(2) shall apply.
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 surveillance documents were issued during the preceding period;
(b)
in every case, details of imports during the period preceding the period referred to in point (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.
CHAPTER 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 authorisation, 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 and shall take effect immediately.
3. 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.
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 a surveillance 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 State 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, amend 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 Chapter IV and Article 15 are met in one or more regions of the Community, the Commission, after having examined alternative solutions, may exceptionally authorise 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.
Those measures must be temporary and must disrupt the operation of the internal market as little as possible.
Those 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 Chapters IV and V is in operation, the consultations within the Committee provided for in Article 3 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 measure;
(b)
to ascertain whether the application of the measure 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 Chapters 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 its publication in the Official Journal of the European Union.
CHAPTER 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. Without prejudice to other Community provisions, this Regulation shall not preclude the adoption or application by Member States of:
(a)
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;
(b)
special formalities concerning foreign exchange;
(c)
formalities introduced pursuant to international agreements in accordance with the Treaty.
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 organisation of agricultural markets or of Community or national administrative provisions derived therefrom or of the specific instruments adopted under Article 308 of the Treaty applicable to goods resulting from the processing of agricultural products. It shall operate by way of complement to those instruments.
2. In the case of products covered by the instruments referred to in paragraph 1, Articles 9 to 14 and Article 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.
Articles 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
Regulation (EC) No 519/94 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and be read in accordance with the correlation table set out in Annex IV.
Article 22
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 7 July 2009.