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COMMISSION RECOMMENDATION

of 18 July 1990

repealing recommendations on commercial policy measures concerning imports of coal from third countries into the Federal Repubic of Germany

(90/443/ECSC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 74 thereof,

Whereas:

I

Under recommendation of the High Authority of 28 January 1959 to the Governments of the Member States of the Community on commercial policy measures concerning imports of coal from third countries (1), the High Authority required the Federal Republic of Germany to impose on imports of coal from non-member countries a provisional customs duty of not more than DM 20 per tonne should these imports exceed a zero-duty quota of 5 million tonnes.

It also authorized the Federal Republic of Germany to carry out checks on origin where necessary in implementing the recommendation.

Lastly, it recommended to the Governments of the other Member States that they take, as needed, the measures necessary to ensure the implementation of the measures recommended to the Federal Republic of Germany.

The recommendation was issued in view of the following:

- coal producers in the Community were facing serious difficulties in disposing of coal,

- this situation was particularly evident in the Federal Republic of Germany where coal from third countries was being imported in relatively increased quantities and under such conditions that these imports threatened to cause serious injury to production of coal within the common market with a clear threat to employment,

- existing trade measures in the Federal Republic of Germany at that time were insufficient to deal with the situation.

Under recommendations of 3 November 1959 (2), 3 November 1960 (3), 13 December 1961 (4) and 30 October 1962 (5), the High Authority adopted measures covering the years 1960, 1961, 1962 and 1963.

For subsequent years, the Court of Justice of the European Communities decided (6) that the abovementioned recommendations might continue to serve as a legal basis for national rules providing for the charging of a differential customs duty on coal originating in a non-member country and imported after its release into free circulation in another Member State.

II

Since the adoption of these recommendations, the conditions justifying customs protection in the Federal Republic of Germany have undergone perceptible changes, both with regard to trade and Community measures in favour of the Community coal industry.

As to coal imports into the Federal Republic, while the Federal Republic's imports in 1958 represented 40 % of total Community imports, this share - calculated on the basis of the old Community of Six - had fallen to around 9 % in 1989. In these circumstances, coal is no longer imported in relatively increased quantities in the sense of Article 74 (3) of the Treaty.

As to the Community measures introduced as from 1965 to deal with the problems facing the coal industry, a sequence of Community regimes has been established permitting Member State's intervention in favour of the industry:

- Decision No 3/65 (1), Decision No 27/67 (2), Decision No 3/71/ECSC (3), Decision No 528/76/ECSC (4), Decision No 2064/86/ECSC (5).

The aid regimes put in place by these Decisions have allowed, in particular, the creation of favourable conditions necessary to enable the Community coal industry to adapt to the realities of the energy market. Indeed, the aid envisaged by Member States may be seen as compatible with the proper functioning of the common market, if it contributes to an improvement in the competitiveness of the coal industry, thus helping to ensure better security of supply or to solve the social and regional problems related to changes in the coal industry.

III

In the light of the foregoing, it is clear that the conditions of Article 74 (3) of the Treaty, are no longer met.

Given the exceptional nature of the derogations granted under this provision, and in view of the objectives of Article 3 (f) of the Treaty, the continuation of the arrangements under the abovementioned recommendations is no longer justified.

It is appropriate therefore to repeal the said recommendations as from 1 January 1991, this period being necessary to allow the Federal Republic of Germany to take the required measures,

HAS ADOPTED THIS RECOMMENDATION

Article 1

The recommendations of the High Authority of the European Coal and Steel Community of 28 January 1959, 3 November 1959, 3 November 1960, 13 December 1961 and 30 October 1962 are hereby repealed with effect from 1 January 1991.

Article 2

This recommendation is addressed to the Member States.

Done at Brussels, 18 July 1990.

For the Commission

Frans ANDRIESSEN

Vice-President

(1) OJ No 8, 11. 2. 1959, p. 197/59.

(2) OJ No 58, 14. 11. 1959, p. 1150/59.

(3) OJ No 73, 19. 11. 1960, p. 1425/60.

(4) OJ No 82, 19. 12. 1961, p. 1600/61.

(5) OJ No 116, 12. 11. 1962, p. 2683/62.

(6) Judgment of 28 June 1984, case 36/83 - MABANAFT/Hauptzollamt - Emmerich - Reports of cases before the Court of Justice (1984) ECR 2527.

(1) OJ No 31, 25. 2. 1965, p. 480/65.

(2) OJ No 261, 28. 10. 1967, p. 1.

(3) OJ No L 3, 5. 1. 1971, p. 7.

(4) OJ No L 63, 11. 3. 1976, p. 1.

(5) OJ No L 177, 1. 7. 1986, p. 1.