1994R3286 — EN — 01.01.1995 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCILREGULATION(EC)No3286/94
of22December 1994
laying down Community procedures in the field of the common commercial policy in order to
ensuretheexercise oftheCommunity'srightsunderinternationaltraderules,inparticularthose
establishedundertheauspicesoftheWorldTradeOrganization
(OJ L 349, 31.12.1994, p. 71)
Amended by:
Official Journal
No page date
►M1 Council Regulation (EC) No 356/95 of 20 February 1995 L 41 3 23.2.1995
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COUNCILREGULATION(EC)No3286/94
of22December 1994
laying down Community procedures in the field of the common
commercial policy in order to ensure the exercise of the Commu-nity's rights under international trade rules, in particular those
establishedundertheauspicesoftheWorldTradeOrganization
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, andin particular Article 113 thereof,
Having regard to the rules establishing the common organization of
agricultural markets and the rules adopted pursuant to Article 235 ofthe Treaty, applicable to goods processed from agricultural products,and in particular those provisions thereof, which allow for derogationfrom the general principle that any quantitative restriction or measurehaving equivalenteffectmay be replaced solely by t he measures
provided for in those instruments,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (
1),
Whereas the common commercial policy must be based on uniform
principles, in particular with regard to commercial defence;
Whereas Council Regulation (EEC) No 2641/84 of 17 September 1984
on the strengthening of the common commercial policy with regard inparticular to protection against illicit commercial practices (
2) provided
the Community with procedures enabling it:
— to respond to any illicit commercial practice with a view to
removing the injury resulting therefrom, and
— to ensure full exercise of the Community's rights with regard to the
commercial practices of third countries;
Whereas experience in the application of Regulation (EEC) No 2641/
84 has shown that the need to deal with obstacles to trade adopted ormaintained by third countries remains, and whereas the approachfollowed in Regulation (EEC) No 2641/84 has not proved to be entirelyeffective;
Whereas it appears necessary, therefore, to establish new and improved
Community procedures to ensure the effective exercise of the rights ofthe Community under international trade rules;
Whereas international trade rules are primarily those established under
the auspices of the WTO and laid down in the Annexes to the WTOAgreement, but they can also be those laid down in any other agree-ment to which the Community is a party and which sets out rulesapplicable to trade between the Community and third countries, andwhereas it is appropriate to give a clear idea of the types of agreements
to which the term ‘international trade rules’ refers;
Whereas the abovementioned Community procedures should be based
on a legal mechanism under Community law which would be fullytransparent, and would ensure that the decision to invoke the Commu-
nity's rights under international trade rules is taken on the basis of
accurate factual information and legal analysis;
Whereas this mechanism aims to provide procedural means to request
that the Community institutions react to obstacles to trade adopted or
maintained by third countries which cause injury or otherwise adverse
trade effects, provided that a right of action exists, in respect of suchobstacles, under applicable international trade rules;1994R3286 — EN — 01.01.1995 — 001.001 — 2
(1) Opinion delivered on 14 December 1994 (notyetpublished in t he Official
Journal) (SIC! OJ No C 18, 23. 1. 1995).
(2) OJ No L 252, 20. 9. 1984, p. 1. Regulation as last amended by Regulation
(EC) No 522/94 (OJ No L 66, 10. 3. 1994, p. 10).
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Whereas the right of Member States to resort to this mechanism should
be without prejudice to their possibility to raise the same or similarmatters through other existing Community procedures, and in particular
before the committee established by Article 113 of the Treaty;
Whereas regard should be paid to the institutional role of the
committee established by Article 113 of the Treaty in formulatingadvice for the institutions of the Community on all issues of commer-cial policy; whereas, therefore, this committee should be kept informedof the development of individual cases, in order to enable it to consider
their broader policy implications;
Whereas, moreover, to the extent that an agreement with a third
country appears to be the most appropriate means to resolve a dispute
arising from an obstacle to trade, negotiations to this end shall beconducted according to the procedures established in Article 113 ofthe Treaty, in particular in consultation with the committee establishedthereby;
Whereas it is appropriate to confirm that the Community must act in
compliance with its international obligations and, where such obliga-
tions result from agreements, maintain the balance of rights and
obligations which it is the purpose of those agreements to establish;
Whereas it is also appropriate to confirm that any measures taken
under the procedures in question should also be in conformity withthe Community's international obligations, as well as being withoutprejudice to other measures in cases not covered by this Regulationwhich might be adopted directly pursuant to Article 113 of the Treaty;
Whereas the rules of procedures to be followed during the examination
procedure provided for in this Regulation should also be confirmed, in
particular as regards the rights and obligations of the Communityauthorities and the parties involved, and the conditions under whichinterested parties may have access to information and may ask to beinformed of the essential facts and considerations resulting from theexamination procedure;
Whereas in acting pursuant to this Regulation the Community has to
bear in mind the need for rapid and effective action, through the appli-
cation of the decision-making procedures provided for in theRegulation;
Whereas it is incumbent on the Commission and the Council to act in
respect of obstacles to trade adopted or maintained by third countries,within the framework of the Community's international rights and obli-gations, only when the interests of the Community call for intervention,
and whereas, when assessing such interests, the Commission and the
Council should give due consideration to the views by all interestedparties in the proceedings;
HAS ADOPTED THIS REGULATION:
Article 1
Aims
This Regulation establishes Community procedures in the field of the
common commercial policy in order to ensure the exercise of theCommunity's rights under international trade rules, in particular thoseestablished under the auspices of the World Trade Organization which,subject to compliance with existing international obligations and proce-dures, are aimed at:
(a) responding to obstacles to trade that have an effect on the market
of the Community, with a view to removing the injury resulting
therefrom;
(b) responding to obstacles to trade that have an effect on the market
of a third country, with a view to removing the adverse tradeeffects resulting therefrom.1994R3286 — EN — 01.01.1995 — 001.001 — 3
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These procedures shall be applied in particular to the initiation and
subsequent conduct and termination of international dispute settlementprocedures in the area of common commercial policy.
Article 2
Definitions
1. For the purposes of this Regulation, ‘obstacles to trade’ shall be
any trade practice adopted or maintained by a third country in respectof which international trade rules establish a right of action. Such a
right of action exists when international trade rules either prohibit a
practice outright, or give another party affected by the practice a rightto seek elimination of the effect of the practice in question.
2. For the purposes of this Regulation and subject to paragraph 8,
‘the Community's rights’ shall be those international trade rights of
which it may avail itself under international trade rules. In this context,
‘international trade rules’ are primarily those established under theauspices of the WTO and laid down in the Annexes to the WTOAgreement, but they can also be those laid down in any other agree-ment to which the Community is a party and which sets out rulesapplicable to trade between the Community and third countries.
3. For the purposes of this Regulation, ‘injury’ shall be any material
injury which an obstacle to trade causes or threatens to cause, inrespect of a product or service, to a Community industry on the marketof the Community.
4. For the purposes of this Regulation, ‘adverse trade effects’ shall
be those which an obstacle to trade causes or threatens to cause, in
respect of a product or service, to Community enterprises on themarket of any third country, and which have a material impact on theeconomy of the Community or of a region of the Community, or on asector of economic activity therein. The fact that the complainantsuffers from such adverse effects shall not be considered sufficient to
justify, on its own, that the Community institutions proceed with any
action.
5. The term ‘Community industry’ shall be taken to mean all
Community producers or providers, respectively:
— of products or services identical or similar to the product or service
which is the subject of an obstacle to trade, or
— of products or services competing directly with that product or
service, or
— who are consumers or processors of the product or consumers or
users of the service which is the subject of an obstacle to trade,
or all those producers or providers whose combined output constitutes
a major proportion of total Community production of the products or
services in question; however:
(a) when producers or providers are related to the exporters or impor-
ters or are themselves importers of the product or service alleged tobe the subject of obstacles to trade, the term ‘Community industry’may be interpreted as referring to the rest of the producers or
providers;
(b) in particular circumstances, the producers or providers within a
region of the Community may be regarded as the Community
industry if their collective output constitutes the major proportion
of the output of the product or service in question in the MemberState or Member States within which the region is located providedthat the effect of the obstacle to trade is concentrated in thatMember State or those Member States.
6. The term ‘Community enterprise’ shall be taken to mean a
company or firm formed in accordance with the law of a Member Stateand having its registered office, central administration or principalplace of business within the Community, directly concerned by theproduction of goods or the provision of services which are the subjectof the obstacle to trade.1994R3286 — EN — 01.01.1995 — 001.001 — 4
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7. For the purposes of this Regulation, the notion of ‘providers of
services’ in the context of both the term ‘Community industry’ asdefined in paragraph 5, and the term ‘Community enterprises’ as
defined in paragraph 6, is without prejudice to the non-commercial
nature which the provision of any particular service may haveaccording to the legislation or regulation of a Member State.
8. For the purposes of this Regulation, the term ‘services’ shall be
taken to mean those services in respect of which international agree-ments can be concluded by the Community on the basis of Article113 of the Treaty.
Article 3
ComplaintonbehalfoftheCommunityindustry
1. Any natural or legal person, or any association not having legal
personality, acting on behalf of a Community industry which considersthat it has suffered injury as a result of obstacles to trade that have an
effect on the market of the Community may lodge a written complaint.
2. The complaint must contain sufficient evidence of the existence
of the obstacles to trade and of the injury resulting therefrom. Evidence
of injury must be given on the basis of the illustrative list of factors
indicated in Article 10, where applicable.
Article 4
ComplaintonbehalfofCommunityenterprises
1. Any Community enterprise, or any association, having or not
legal personality, acting on behalf of one or more Community enter-prises, which considers that such Community enterprises have sufferedadverse trade effects as a result of obstacles to trade that have an effecton the market of a third country may lodge a written complaint. Such
complaint, however, shall only be admissible if the obstacle to trade
alleged therein is the subject of a right of action established underinternational trade rules laid down in a multilateral or plurilateral tradeagreement.
2. The complaint must contain sufficient evidence of the existence
of the obstacles to trade and of the adverse trade effects, resultingtherefrom. Evidence of adverse trade effects must be given on the basisof the illustrative list of factors indicated in Article 10, where applic-able.
Article 5
Complaintprocedures
1. The complaint shall be submitted to the Commission, which shall
send a copy thereof to the Member States.
2. The complaint may be withdrawn, in which case the procedure
may be terminated unless such termination would not be in the inter-
ests of the Community.
3. Where it becomes apparent after consultation that the complaint
does not provide sufficient evidence to justify initiating an investiga-
tion, then the complainant shall be so informed.
4. The Commission shall take a decision as soon as possible on the
opening of a Community examination procedure following any
complaint made in accordance with Articles 3 or 4; the decision shall
normally be taken within 45 days of the lodging of the complaint; thisperiod may be suspended at the request, or with the agreement, of thecomplainant, in order to allow the provision of complementary infor-mation which may be needed to fully assess the validity of thecomplainant's case.1994R3286 — EN — 01.01.1995 — 001.001 — 5
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Article 6
Referral byaMember State
1. Any Member State may ask the Commission to initiate the proce-
dures referred to in Article 1.
2. It shall supply the Commission with sufficient evidence to
support its request, as regards obstacles to trade and of any effectsresulting therefrom. Where evidence of injury or of adverse trade
effects is appropriate, is must be given on the basis of the illustrative
list of factors indicated in Article 10, where applicable.
3. The Commission shall notify the other Member States of the
requests without delay.
4. Where it becomes apparent after consultation that the request
does not provide sufficient evidence to justify initiating an investiga-tion, then the Member State shall be so informed.
5. The Commission shall take a decision as soon as possible on the
opening of a Community examination procedure following any referralby a Member State made in accordance with Article 6; the decision
shall normally be taken with 45 days of the referral; this period may
be suspended at the request, or with the agreement, of the referringMember State, in order to allow the provision of complementary infor-mation which may be needed to fully assess the validity of the casepresented by the referring Member State.
Article 7
Consultationprocedure
1. For the purpose of consultations pursuant to this Regulation, an
Advisory Committee, hereinafter referred to as ‘the Committee’, ishereby set up and shall consist of representatives of each MemberState, with a representative of the Commission as chairman.
2. Consultations shall be held immediately at the request of a
Member State or on the initiative of the Commission, and in any eventwithin a time frame which allows the time limits set by this Regulation
to be respected. The chairman of the Committee shall provide the
Member States, as promptly as possible, with all relevant informationin his possession. The Commission shall also refer such informationto the committee established by Article 113 of the Treaty so that itcan consider any wider implications for the common commercialpolicy.
3. The Committee shall meet when convened by its chairman.4. Where necessary, consultations may be in writing. In such case
the Commission shall notify in writing the Member States who, withina period of eight working days from such notification, shall be entitledto express their opinions in writing or to request oral consultationswhich the chairman shall arrange, provided that such oral consultations
can be held within a time frame which allows the time limits set by
this Regulation to be respected.
Article 8
Communityexaminationprocedure
1. Where, after consultation, it is apparent to the Commission that
there is sufficient evidence to justify initiating an examination proce-
dure and that it is necessary in the interest of the Community, the
Commission shall actas follows:
(a) it shall announce the initiation of an examination procedure in the
Official Journal ofthe European Communities ; such announcement
shall indicate the product or service and countries concerned, givea summary of the information received, and provide that all rele-vant information is to be communicated to the Commission; itshall state the period within which interested parties may apply tobe heard orally by the Commission in accordance with paragraph 5;1994R3286 — EN — 01.01.1995 — 001.001 — 6
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(b) it shall officially notify the representatives of the country or coun-
tries which are the subject of the procedure, with whom, whereappropriate, consultations may be held;
(c) it shall conduct the examination at Community level, acting in
cooperation with the Member States.
2. (a) If necessary the Commission shall seek all the information it
deems necessary and attempt to check this information with the
importers, traders, agents, producers, trade associations andorganizations, provided that the undertakings or organizationsconcerned give their consent.
(b) Where necessary, the Commission shall carry out investigations
in the territory of third countries, provided that the governmentsof the countries have been officially notified and raise no objec-tion within a reasonable period.
(c) The Commission shall be assisted in its investigation by officials
of the Member State in whose territory the checks are carriedout, provided that the Member State in question so requests.
3. Member States shall supply the Commission, upon request, with
all information necessary for the examination, in accordance with the
detailed arrangements laid down by the Commission.
4. (a) The complainants and the exporters and importers concerned, as
well as the representatives of the country or countries concerned,may inspect all information made available to the Commissionexcept for internal documents for the use of the Commissionand the administrations, provided that such information is rele-
vant to the protection of their interests and not confidential
within the meaning of Article 9 and that it is used by theCommission in its examination procedure. The personsconcerned shall address a reasoned request in writing to theCommission, indicating the information required.
(b) The complainants and the exporters and importers concerned
and the representatives of the country or countries concernedmay ask to be informed of the principal facts and considerationsresulting from the examination procedure.
5. The Commission may hear the parties concerned. It shall hear
them if they have, within the period prescribed in the notice published
in theOfficial Journal of the European Communities , made a written
request for a hearing showing that they are a party primarily concernedby the result of the procedure.
6. Furthermore, the Commission shall, on request, give the parties
primarily concerned an opportunity to meet, so that opposing views
may be presented and any rebuttal argument put forward. In providingthis opportunity the Commission shall take account of the wishes of theparties and of the need to preserve confidentiality. There shall be noobligation on any party to attend a meeting and failure to do so shallnot be prejudicial to that party's case.
7. When the information requested by the Commission is not
supplied within a reasonable time or where the investigation is signifi-cantly impeded, findings may be made on the basis of the factsavailable.
8. When it has concluded its examination the Commission shall
report to the Committee. The report should normally be presented
within five months of the announcement of initiation of the procedure,
unless the complexity of the examination is such that the Commissionextends the period to seven months.
Article 9
Confidentiality
1. Information received pursuant to this Regulation shall be used
only for the purpose for which it was requested.1994R3286 — EN — 01.01.1995 — 001.001 — 7
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2. (a) Neither the Council, nor the Commission, nor Member States,
nor the officials of any of these, shall reveal any information ofa confidential nature received pursuant to this Regulation, or any
information provided on a confidential basis by a party to an
examination procedure, without specific permission from theparty submitting such information.
(b) Each request for confidential treatment shall indicate why the
information is confidential and shall be accompanied by a non-confidential summary of the information or a statement of thereasons why the information is not susceptible of such summary.
3. Information will normally 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. However, if it appears that a request for confidentiality is not
warranted and if the supplier is either unwilling to make the informa-tion public or to authorize its disclosure in generalized or summary
form, the information in question may be disregarded.
5. This Article shall not preclude the disclosure of general informa-
tion by the Community authorities and in particular of the reasons onwhich decisions taken pursuant to this Regulation are based. Suchdisclosure must take into account the legitimate interest of the parties
concerned that their business secrets should not be divulged.
Article 10
Evidence
1. An examination of injury shall involve where applicable the
following factors:
(a) the volume of Community imports or exports concerned, notably
where there has been a significant increase or decrease, either inabsolute terms or relative to production or consumption on themarketin quest ion;
(b) the prices of the Community industry's competitors, in particular in
order to determine whether there has been, either in the Commu-nity or on third country markets, significant undercutting of theprices of the Community industry;
(c) the consequent impact on the Community industry and as indicated
by trends in certain economic factors such as: production, utiliza-tion of capacity, stocks, sales, market share, prices (that is
depression of prices or prevention of price increases which would
normally have occurred), profits, return on capital, investment,employment.
2. Where a threat of injury is alleged, the Commission shall also
examine whether it is clearly foreseeable that a particular situation is
likely to develop into actual injury. In this regard, account may also
be taken of factors such as:
(a) the rate of increase of exports to the market where the competition
with Community products is taking place;
(b) export capacity in the country of origin or export, which is already
in existence or will be operational in the foreseeable future, and thelikelihood that the exports resulting from that capacity will be tothe market referred to in point (a).
3. Injury caused by other factors which, either individually or in
combination, are also adversely affecting Community industry mustnot be attributed to the practices under consideration.
4. Where adverse trade effects are alleged, the Commission shall
examine the impact of such adverse effects on the economy of the
Community or of a region of the Community, or on a sector ofeconomic activity therein. To this effect, the Commission may takeinto account, where relevant, factors of the type listed in paragraphs 1and 2. Adverse trade effects may arise, interalia , in situations in which
trade flows concerning a product or service are prevented, impeded or1994R3286 — EN — 01.01.1995 — 001.001 — 8
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diverted as a result of any obstacle to trade, or from situations in which
obstacles to trade have materially affected the supply or inputs (e.g.parts and components or raw materials) to Community enterprises.
Where a threat of adverse trade effects is alleged, the Commission shall
also examine whether it is clearly foreseeable that a particular situationis likely to develop into actual adverse trade effects.
5. The Commission shall also, in examining evidence of adverse
trade effects, have regard to the provisions, principles or practice which
govern the right of action under relevant international rules referred to
in Article 2 (1).
6. The Commission shall further examine any other relevant
evidence contained in the complaint or in the referral. In this respect,the list of factors and the indications given in paragraphs 1 to 5 are not
exhaustive, nor can one or several of such factors and indications
necessarily give decisive guidance as to the existence of injury or ofadverse trade effects.
Article 11
Terminationandsuspensionoftheprocedure
1. When it is found as a result of the examination procedure that the
interests of the Community do not require any action to be taken, theprocedure shall be terminated in accordance with Article 14.
2. (a) When, after an examination procedure, the third country or
countries concerned take(s) measures which are considered satis-
factory, and therefore no action by the Community is required,the procedure may be suspended in accordance with the provi-sions of Article 14.
(b) The Commission shall supervise the application of these
measures, where appropriate on the basis of informationsupplied at intervals, which it may request from the third coun-tries concerned and check as necessary.
(c) Where the measures taken by the third country or countries
concerned have been rescinded, suspended or improperly imple-mented or where the Commission has grounds for believing thisto be the case or, finally, where a request for information made
by the Commission as provided for by point (b) has not been
granted, the Commission shall inform the Member States, andwhere necessary and justified by the results of the investigationand the new facts available any measures shall be taken inaccordance with Article 13 (3).
3. Where, either after an examination procedure, or at any time
before, during and after an international dispute settlement procedure,it appears that the most appropriate means to resolve a dispute arisingfrom an obstacle to trade is the conclusion of an agreement with thethird country or countries concerned, which may change the substantive
rights of the Community and of the third country or countries
concerned, the procedure shall be suspended according to the provi-sions of Article 14, and negotiations shall be carried out according tothe provisions of Article 113 of the Treaty.
Article 12
Adoptionofcommercialpolicymeasures
1. Where it is found (as a result of the examination procedure,
unless the factual and legal situation is such that an examination proce-dure may not be required) that action is necessary in the interests of theCommunity in order to ensure the exercise of the Community's rightsunder international trade rules, with a view to removing the injury or
the adverse trade effects resulting from obstacles to trade adopted or
maintained by third countries, the appropriate measures shall be deter-mined in accordance with the procedure set out in Article 13.
2. Where the Community's international obligations require the prior
discharge of an international procedure for consultation or for the1994R3286 — EN — 01.01.1995 — 001.001 — 9
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settlement of disputes, the measures referred to in paragraph 3 shall
only be decided on after that procedure has been terminated, and takingaccount of the results of the procedure. In particular, where the
Community has requested an international dispute settlement body to
indicate and authorize the measures which are appropriate for theimplementation of the results of an international dispute settlementprocedure, the Community commercial policy measures which may beneeded in consequence of such authorization shall be in accordance
with the recommendation of such international dispute settlement body.
3. Any commercial policy measures may be taken which are compa-
tible with existing international obligations and procedures, notably:
(a) suspension or withdrawal of any concession resulting from
commercial policy negotiations;
(b) the raising of existing customs duties or the introduction of any
other charge on imports;
(c) the introduction of quantitative restrictions or any other measures
modifying import or export conditions or otherwise affecting trade
with the third country concerned.
4. The corresponding decisions shall state the reasons on which they
are based and shall be published in the Official Journal of the
European Communities. Publication shall also be deemed to constitute
notification to the countries and parties primarily concerned.
Article 13
Decision-makingprocedures
1. The decisions referred to in Article 11 (1) and (2) (a) shall be
adopted in accordance with the provisions of Article 14.
2. Where the Community, as a result of a complaint pursuant to
Articles 3 or 4, or of a referral pursuant to Article 6, follows formal
international consultation or dispute settlement procedures, decisionsrelating to the initiation, conduct or termination of such proceduresshall be taken in accordance with Article 14.
3. Where the Community, having acted in accordance with Article
12 (2), has to take a decision on the measures of commercial policyto be adopted pursuant to Article 11 (2) (c) or pursuant to Article 12the Council shall act, in accordance with Article 113 of the Treaty, by
a qualified majority, not later than 30 working days after receiving the
proposal.
Article 14
Committeeprocedure
1. Should reference be made to the procedure provided for in this
Article, the matter shall be brought before the Committee by itschairman.
2. The Commission representative shall submit to the Committee a
draft of the decision to be taken. The Committee shall discuss the
matter within a period to be fixed by the chairman, depending on the
urgency of the matter.
3. The Commission shall adopta decision which itshall communi-
cate to the Member States and which shall apply after a period of 10days if during this period no Member State has referred the matter tothe Council.
4. The Council may, at the request of a Member State and acting by
a qualified majority revise the Commission's decision.
5. The Commission's decision shall apply after a period of 30 days
if the Council has not given a ruling within this period, calculated fromthe day on which the matter was referred to the Council.1994R3286 — EN — 01.01.1995 — 001.001 — 10
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Article 15
General provisions
1. This Regulation shall not apply in cases covered by other existing
rules in the common commercial policy field. It shall operate by way
of complementt o:
— the rules establishing the common organization of agricultural
markets and their implementing provisions, and
— the specific rules adopted pursuant to Article 235 of the Treaty,
applicable to goods processed from agricultural products.
It shall be without prejudice to other measures which may be taken
pursuant to Article 113 of the Treaty, as well as to Community proce-dures for dealing with matters concerning obstacles to trade raised byMember States in the committee established by Article 113 of theTreaty.
2. Regulation (EEC) No 2641/84 is hereby repealed. References to
the repealed Regulation shall be construed as references to this Regula-tion where appropriate.
Article 16
Entryintoforce
This Regulation shall enter into force on 1 January 1995.It shall apply to proceedings initiated after that date as well as to
proceedings pending at that date and in relation to which Communityexamination procedures have been completed.
This Regulation shall be binding in its entirety and directly applicable
in all Member States.1994R3286 — EN — 01.01.1995 — 001.001 — 11
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