DECISION (EU) 2019/339 OF THE PRESIDENT OF THE EUROPEAN COMMISSION

of 21 February 2019

on the function and terms of reference of the hearing officer in certain trade proceedings

THE PRESIDENT OF THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to the Rules of Procedure of the Commission (1), and in particular Article 22 thereof,

Whereas:

(1) Article 41 of the Charter of Fundamental Rights of the European Union provides that every person has the right to have their affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. That article sets out a series of procedural rights that apply to interested parties involved in administrative proceedings which may affect their interests.

(2) In 2007, the Commission created the function of hearing officer, in order to safeguard the effective exercise of the procedural rights of interested parties and ensure that trade proceedings are handled impartially, fairly and within a reasonable time. From 2007 to 2012, that role was entrusted to an official of the Directorate-General for Trade experienced in trade defence issues.

(3) In 2012, in order to strengthen the role of the hearing officer, and to reinforce the transparency and fairness of trade proceedings, the President of the Commission adopted Decision 2012/199/EU (2). In order to take into account past experience, new legal developments including the reference to the role of the hearing officer in Regulations (EU) 2016/1036 (3) and (EU) 2016/1037 (4) of the European Parliament and of the Council as well as increasing procedural constraints, that Decision should be replaced.

(4) The function of the hearing officer should be attributed to an independent person experienced in trade proceedings. The hearing officer should be appointed by the Commission in accordance with the rules laid down in the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union. In accordance with those rules, consideration may be given to candidates who are not officials of the Commission.

(5) In order to ensure full independence, the hearing officer should be attached, for administrative purposes only, to the member of the Commission responsible for trade policy.

(6) The main tasks of the hearing officer should be to advise the member of the Commission responsible for trade policy and the Director-General responsible for trade policy (‘the Director-General’), to guarantee procedural rights, decide on requests for access to the file, to take decisions on the confidential nature of documents and to review the position of the Commission services responsible for the extension of deadlines. The hearing officer should seek to ensure that in the preparation of draft legal acts or proposals, due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned.

(7) The hearing officer should ensure that the opportunities afforded to interested parties for presenting evidence of facts and defence of their interests during the proceeding are such as to enable them to exercise their rights of defence in the most effective manner.

(8) The intervention of the hearing officer should take place in a manner that any follow-up can be implemented, bearing in mind the time constraints of the proceedings.

(9) It is necessary to determine the manner and circumstances in which the hearing officer may intervene, and to establish rules for the organisation, conduct and follow-up of such interventions.

(10) The power of the hearing officer to decide on issues concerning access to the file, confidentiality and deadlines should provide the parties involved in a trade proceeding with an additional procedural guarantee whilst not impeding the orderly conduct and timely completion of proceedings.

(11) The reports of the hearing officer should ensure that the main issues dealt with, and recommendations made by the hearing officer are brought to the attention of the decision-makers and thus provide an additional guarantee for the respect of the rights of parties affected by a trade proceeding. The annual reports of the hearing officer should also inform the Member States, the European Parliament and the public about the main activities of the hearing officer.

(12) When processing personal data, the hearing officer should adhere to Regulation (EU) 2018/1725 of the European Parliament and of the Council (5).

(13) This Decision should be without prejudice to the general rules granting or excluding access to Commission documents,

HAS ADOPTED THIS DECISION:

Article 1 The hearing officer A specific function of hearing officer in trade proceedings shall be created. The task of the hearing officer shall be to safeguard the effective exercise of the procedural rights of the interested parties provided for in the following Regulations (‘the basic Regulations’) and to ensure that the trade proceedings are handled impartially, fairly and within a reasonable time: (a) Regulation (EU) 2016/1036 and in particular Article 5(10) and (11), Article 6(5) to (8), Article 8(3), (4) and (9), and Articles 18 to 21 thereof; (b) Regulation (EU) 2016/1037, and in particular Article 10(12) and (13), Article 11(5) to (8) and (10), Article 13(3), (4) and (9), and Articles 28 to 31 thereof; (c) Regulation (EU) 2015/478 of the European Parliament and of the Council (6), and in particular Articles 5 and 8 thereof; (d) Regulation (EU) 2015/755 of the European Parliament and of the Council (7), and in particular Articles 3 and 5 thereof; (e) Regulation (EU) 2015/1843 of the European Parliament and of the Council (8), and in particular Articles 9 and 10 thereof; (f) Regulation (EU) 2016/1035 of the European Parliament and of the Council (9), and in particular Article 5(12) and (13), Article 6(5) to (8), and Articles 12, 13 and 14 thereof; (g) Regulation (EC) No 868/2004 of the European Parliament and of the Council (10), and in particular Articles 7 and 8 thereof; (h) Regulation (EU) No 978/2012 of the European Parliament and of the Council (11), and in particular Article 24 thereof, and Commission Delegated Regulation (EU) No 155/2013 (12), and in particular Article 6 thereof, and Commission Delegated Regulation (EU) No 1083/2013 (13), and in particular Article 5 thereof; (i) Regulation (EU) 2015/476 of the European Parliament and of the Council (14), and in particular Articles 1(2) and 2(2) thereof.

Article 2 Definitions For the purposes of this Decision the following definitions shall apply: (a) ‘trade proceeding’ means any investigation or administrative procedure performed by the Commission services under any of the basic Regulations; (b) ‘interested party’ means any person whose interests are affected by a trade proceeding pursuant to the basic Regulations; (c) ‘rights of the interested parties’ means procedural rights and the right of every person to have their affairs handled impartially, fairly and within a reasonable time in trade proceedings.

Article 3 Appointment, termination of appointment and deputising 1. The Commission shall appoint the hearing officer in accordance with the rules laid down in the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union. 2. The appointment of the hearing officer shall be published in the Official Journal of the European Union. Any interruption, termination of appointment or transfer of the hearing officer shall be the subject of a reasoned decision of the Commission. That decision shall be published in the Official Journal. 3. The hearing officer shall be attached, for administrative purposes, to the member of the Commission responsible for trade policy. 4. Where the hearing officer is unable to act in a given case, the member of the Commission responsible for trade policy, where possible after consultation with the hearing officer, shall designate an official, who is not involved in the case concerned and has sufficient experience in trade proceedings, to carry out the hearing officer's duties on a case by case basis. 5. Paragraph 4 shall apply where the hearing officer perceives an actual or potential conflict of interest in the performance of their functions, and duly submits a request to be relieved of their duties, in a specific case, to the member of the Commission responsible for trade policy. 6. Where the hearing officer is unable to act for a period of time not limited to a given case or has ceased to act as hearing officer, the member of the Commission responsible for trade policy shall designate an official experienced in trade proceedings to carry out the hearing officer's duties ad interim, until the hearing officer is in a position to resume their duties or until the Commission decides to appoint a new hearing officer.

Article 4 Principles of intervention of the hearing officer 1. The duties of the hearing officer shall be carried out in accordance with paragraphs 2 to 11. 2. The hearing officer shall act independently and shall not take instructions in fulfilling their tasks. 3. The hearing officer shall be bound by the rules of the Staff Regulations prohibiting unauthorised disclosure of information received in the line of duty and shall continue to be bound by that obligation after leaving the service. 4. The hearing officer shall take account of the need for effective application of the basic Regulations in accordance with Union law and the relevant case law of the Court of Justice of the European Union. 5. The hearing officer shall have access without restriction and undue delay to any files pertaining to a trade proceeding at any time of the proceeding. 6. The hearing officer shall make decisions as provided for in Articles 12 to 16 and may make recommendations to the Commission services responsible for the investigation on any issue concerning the rights of the interested parties who have requested the intervention of the hearing officer. The hearing officer shall seek to ensure that in the preparation of draft legal acts or proposals to the Commission, due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned. 7. The hearing officer shall be kept informed by the Director responsible or their delegate about the development of all proceedings in which the hearing officer has intervened until the adoption of a final legal act. 8. The hearing officer shall be informed without delay of any substantial change of the Commission's position at the stage of imposition of definitive measures in trade proceedings in order to assess any potential impact on the rights of the interested parties. 9. The hearing officer shall advise the member of the Commission responsible for trade policy and, where appropriate, the Director-General, concerning the follow-up of the hearing officer's recommendations and, where necessary, on possible remedies. 10. The Director responsible shall consult the hearing office on any changes or updates of policy regarding procedural matters and substantive issues having an impact on the rights of the interested parties or on any other issue arising from a trade proceeding. 11. The hearing officer may present observations and recommendations on any matter arising out of a trade proceeding to the member of the Commission responsible for trade policy and, where necessary, the Director-General.

Article 5 Intervention of the hearing officer 1. Interested parties may request the intervention of the hearing officer in trade proceedings. Any request shall be submitted in good time, bearing in mind the time constraints of the proceedings. Interested parties shall request the intervention of the hearing officer at the earliest possible time following the occurrence of the event justifying such intervention. 2. The hearing officer may also act at the request of the member of the Commission responsible for trade policy, the Director-General, the Director responsible for a trade proceeding or their delegate, or a Director of another service consulted on a trade proceeding. 3. Any request for intervention of the hearing officer shall be made in writing and shall state the issues to be brought to the attention of the hearing officer, including an explanation on how the applicant's rights of defence are affected. 4. Any final legal act or proposal of the Commission shall be accompanied by a note from the hearing officer stating whether they intervened in the proceeding concerned and the nature of any intervention. 5. The hearing officer shall receive a copy of the consultations launched by the competent Commission services pursuant to Article 23(3) of the Rules of Procedure of the Commission.

Article 6 Hearings 1. The hearing officer may, upon request or as set out in the basic Regulations, organise and conduct hearings between an individual interested party or a group of interested parties with similar interests and the Commission services responsible for the investigation. The hearing officer may also organise and conduct hearings among interested parties with different interests. 2. Upon receipt of a request for a hearing, the hearing officer shall assess the issues raised and decide whether a hearing is appropriate. A hearing may cover any issue which arises at any moment of a trade proceeding and could affect the rights of the interested parties. 3. Hearings shall, in principle, only take place if the issues cannot be settled with the Commission services. 4. Where hearing requests are submitted outside the relevant timeframes set for the proceeding, the hearing officer shall examine the reasons for such late requests, the nature of the issues raised and the impact of those issues on the rights of defence, having due regard to the interests of good administration and the timely completion of the investigation. 5. The purpose of the hearing shall be to ensure that the rights of defence of parties are respected by the Commission services. The hearing officer shall, in principle, not accept or consider any evidence that has not been submitted to the Commission services in the course of proceedings. 6. Natural or legal persons invited to attend a hearing with the hearing officer shall either appear in person or be represented by a duly authorised agent appointed from among their staff or a legal representative. They may be assisted by a legal adviser or another qualified person from outside their staff if admitted by the hearing officer. 7. This Article is without prejudice to the right to a hearing with the Commission services responsible for investigation under the basic Regulations.

Article 7 Hearings with individual interested parties or groups of interested parties with similar interests and the Commission services responsible for investigation 1. The hearing officer may organise and conduct a hearing between an individual interested party or a group of interested parties with similar interests and the Commission services responsible for the investigation, upon a reasoned request of the interested party or the group of interested parties with similar interests. 2. An individual interested party may request a hearing on a specific issue with a group of interested parties with similar interests and the Commission services responsible for the investigation. The hearing shall take place provided that at least one other individual interested party with similar interests agrees to participate.

Article 8 Hearings among interested parties with different interests 1. The hearing officer may organise and chair a hearing among interested parties with different interests to allow opposing views to be presented and rebuttal arguments offered. 2. A hearing among interested parties with different interests may be organised in each trade proceeding after the hearing officer has heard the views of the Commission services responsible for the investigation. 3. An individual interested party may request a hearing among interested parties with different interests on a specific issue. A hearing may take place provided that at least one other individual interested party with different interests agrees to participate. 4. The Commission services responsible for the investigation shall attend the hearing as observers. 5. The competent representatives of the Member States may attend any hearing among interested parties with different interests as observers.

Article 9 Preparation of hearings 1. After hearing the Director responsible or their delegate, the hearing officer shall determine the date, the duration and the place of the hearing. Where a postponement is requested by the interested parties or the Commission services, the hearing officer shall decide whether or not to allow it. 2. Where appropriate, the hearing officer may hold a preparatory meeting with the interested parties or with the Commission services responsible for the investigation and other services in order to identify and clarify, as far as possible, any questions of fact or law to be addressed during the hearing. The hearing officer may request any information necessary for the preparation of the hearing from the participants. 3. The hearing officer shall prepare the agenda of each hearing. The agenda shall be made available to all participants prior to the hearing. 4. The hearing officer may, within a reasonable time after the deadline for the submission of comments on a disclosure and before a hearing among parties, invite the participants to submit questions on the information provided by other interested parties. 5. The hearing officer may, after hearing the Director responsible or their delegate, supply in advance to the parties invited to a hearing a list of the questions on which they are invited to comment. 6. The hearing officer may ask for prior written notification of the essential contents of the intended statement of the participants in any hearing. 7. The hearing officer shall invite the staff of the member of the Commission responsible for trade policy and the Legal Service to hearings organised by the hearing officer. The hearing officer may invite other Commission services to attend such hearings. 8. The hearing officer may invite external experts to attend such hearings. Interested parties and the Commission services may request the hearing officer to admit external experts to hearings. The hearing officer shall decide on such requests. External experts invited to a hearing shall be required to sign a confidentiality agreement. 9. External experts may be asked to provide any relevant analysis, reports or publications. They shall be included in the file open for consultation by interested parties and made available to all participants whenever possible prior to the hearing.

Article 10 Conduct of hearings 1. The hearing officer shall be responsible for the conduct of hearings. The hearing officer shall ensure that the hearing is held in a fair and impartial manner. 2. Hearings shall not be public. The hearing officer shall decide which persons are to be heard on behalf of an interested party and whether the persons concerned are to be heard separately or in the presence of other persons invited to attend. In the latter case, the legitimate interest of the interested parties in the protection of their business secrets and other confidential information shall be taken into consideration. 3. The hearing officer may allow the participants to pose and answer questions during the hearing. 4. If the hearing officer has admitted external experts, those experts shall have the opportunity to present their views and to answer questions from other participants in the hearing. 5. Where appropriate after a hearing, in view of the need to ensure the right to be heard, and after hearing the Director responsible or their delegate, the hearing officer may afford interested parties the opportunity to submit further written comments. The hearing officer shall fix a date by which such submissions are to be made. The hearing officer may decide not to take into account written comments received after that date.

Article 11 Follow-up on hearings 1. Where hearings among interested parties with different interests are organised, the hearing officer shall produce a transcript or a meaningful summary of the hearing and shall make it available to all participants in the hearing. The transcript or meaningful summary shall be included in the file open for consultation by interested parties. Where hearings between an individual interested party or a group of interested parties with similar interests and the Commission services are organised, the hearing officer shall produce a transcript or a meaningful summary of the hearing and shall make it available to all participants in the hearing. Those participants may submit a reasoned request for confidentiality of certain information contained in the transcript or the summary. The hearing officer shall decide on the requests after hearing the Commission services responsible for the investigation and where necessary other services. The non-confidential version of the transcript or summary of the hearing shall be included in the file for consultation by interested parties. 2. The hearing officer may convey recommendations to the Commission services responsible for the investigation in accordance with Article 4(5). The Commission services responsible for the investigation shall inform the hearing officer within a reasonable period of time before the adoption of a final legal act whether and how they have taken those recommendations into account and shall provide the hearing officer with a copy of the draft legal act. 3. The hearing officer shall inform the member of the Commission responsible for trade policy without delay about hearings with individual parties or a group of interested parties with similar interests as provided for in Article 18. If the case so requires, the hearing officer shall submit an immediate recommendation to the member of the Commission responsible for trade policy or the Director-General. 4. In principle, recommendations made by the hearing officer to the Commission services responsible for the investigation, and reports and observations to the member of the Commission responsible for trade policy and the Director-General, shall be considered confidential internal documents. However, in the interest of transparency and good administration, the hearing officer shall decide which documents, originating from the hearing officer, are to be included in the file open for inspection to parties.

Article 12 Access to file 1. An interested party may request the hearing officer to review any refusal of the Commission services responsible for the investigation to provide that party, within a reasonable time, with access to the file open for consultation or to a particular document in the possession of the Commission. The hearing officer shall examine the case and shall make a decision on whether to grant partial or full access or refuse access to the file or the requested document. 2. The hearing officer shall set the time limits within which access shall be provided by the Commission services responsible for the investigation.

Article 13 Confidentiality 1. The hearing officer shall be bound by the general rules regarding the confidentiality of information submitted by interested parties in administrative proceedings before the Commission. 2. The hearing officer shall examine requests by interested parties or the Commission services responsible for the investigation regarding the confidential nature of a document in the possession of the Commission services responsible for the investigation. The hearing officer shall decide on such requests bearing in mind both the rights of defence of interested parties and the rules on confidentiality.

Article 14 Non-confidential summaries of confidential information 1. An interested party may request the hearing officer to review the assessment of the Commission services responsible for the investigation as to whether a non-confidential summary of confidential information submitted in the course of an investigation is in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. 2. If the Commission services responsible for the investigation intend to disregard a document or information for which an interested party has refused to provide a meaningful non-confidential summary, the latter may request the hearing officer to decide on the matter. 3. The hearing officer shall examine the requests. If the non-confidential summary is not sufficiently detailed, the hearing officer shall give the interested party that provided the summary an opportunity to comment and improve its summary within a reasonable time. 4. If the interested party that submitted the confidential information provides a deficient summary or offers justifications that cannot be accepted or does not act, the hearing officer shall decide whether or not to disregard confidential information for which no meaningful non-confidential summary has been provided in accordance with the relevant provisions of the basic Regulations.

Article 15 Access to confidential information not susceptible to summary At the request of an interested party the hearing officer may examine information that is confidential and not susceptible to summary, for which confidentiality has been requested and to which that party has no access, in order to verify how that information was used by the Commission services responsible for the investigation. The hearing officer shall inform the requesting interested party whether: (a) the information withheld from that party is relevant to that party's defence; (b) where relevant, the investigation services have correctly reflected the information in the facts and considerations on which they have based their conclusions.

Article 16 Extension of deadlines 1. A request for extension of time limits or postponement of the dates for replying to questionnaires, for submitting additional information, for on-the-spot visits, or for comments on disclosures shall first be addressed by any interested party to the Commission services responsible for the investigation. Such a request shall be made in due time before the expiry of the original time limit. Where such a request is rejected or where the interested party considers that the extension given is too short, it may submit, before the expiry of the original time limit, a reasoned request to the hearing officer to review the matter. The request shall be submitted directly to the hearing officer. After hearing the Director responsible or their delegate, the hearing officer may extend the time limits or reject the request. The hearing officer shall decide with due regard to the specific circumstances of the request concerned and the time constraints of the proceeding. 2. The Commission services shall not act in the matter referred to the hearing officer before the hearing officer has decided.

Article 17 Participation in the meetings of committees The hearing officer may attend relevant committee meetings. Where appropriate, the hearing officer may reply to questions from Member States as far as those questions concern the nature of the hearing officer's intervention in the proceedings.

Article 18 Reports of the hearing officer 1. At the end of each year, the hearing officer shall prepare an annual report. The annual report shall contain information on the cases in which the hearing officer intervened, the type of decisions and recommendations made and any recommendation for improving the trade proceedings. The report shall be addressed to the member of the Commission responsible for trade policy. The Director-General and Director(s) concerned shall receive a copy of the report. 2. Summaries of the annual report shall be communicated to the European Parliament and the Member States and published on the website of the hearing officer. 3. In addition to the annual report provided for in paragraph 1 and where warranted, the hearing officer shall on an ad hoc basis, provide the member of the Commission responsible for trade policy with a summary of the hearing officer's activities and the issues which arose during those activities. That information shall outline the main policy issues, the decisions and the recommendations made by the hearing officer and how those recommendations were taken into account by the Commission services responsible for the investigation. The Director-General shall receive a copy of such information. 4. The hearing officer shall report on any hearing among interested parties with different interests and may report to the member of the Commission responsible for trade policy and the Director-General on any other issue arising out of a trade proceeding or otherwise relevant for the effective application of Union law in trade proceedings. 5. The final report of the hearing officer in hearings among parties with different interests shall be submitted to the member of the Commission responsible for trade policy, the Director-General and the Director concerned. It shall be communicated to the competent representatives of the Member States and the interested parties.

Article 19 Transitional provisions This Decision shall apply to proceedings which are initiated as of the date of entry into force of this Decision and to proceedings which have already been initiated before that date. Procedural steps taken before the date of entry into force of this Decision shall continue to have effect for the purposes of this Decision.

Article 20 Repeal of Decision 2012/199/EU Decision 2012/199/EU is repealed.

Article 21 Entry into force This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Done at Brussels, 21 February 2019. For the Commission The President Jean-Claude JUNCKER

(1) OJ L 308, 8.12.2000, p. 26.

(2) Decision 2012/199/EU of the President of the European Commission of 29 February 2012 on the function and terms of reference of the hearing officer in certain trade proceedings (OJ L 107, 19.4.2012, p. 5).

(3) Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ L 176, 30.6.2016, p. 21).

(4) Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ L 176, 30.6.2016, p. 55).

(5) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

(6) Regulation (EU) 2015/478 of the European Parliament and of the Council of 11 March 2015 on common rules for imports (OJ L 83, 27.3.2015, p. 16).

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

(8) Regulation (EU) 2015/1843 of the European Parliament and of the Council of 6 October 2015 laying down Union procedures in the field of the common commercial policy in order to ensure the exercise of the Union's rights under international trade rules, in particular those established under the auspices of the World Trade Organization (OJ L 272, 16.10.2015, p. 1).

(9) Regulation (EU) 2016/1035 of the European Parliament and of the Council of 8 June 2016 on protection against injurious pricing of vessels (OJ L 176, 30.6.2016, p. 1).

(10) Regulation (EC) No 868/2004 of the European Parliament and of the Council of 21 April 2004 concerning protection against subsidisation and unfair pricing practices causing injury to Community air carriers in the supply of air services from countries not members of the European Community (OJ L 162, 30.4.2004, p. 1).

(11) Regulation (EU) No 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 (OJ L 303, 31.10.2012, p. 1).

(12) Commission Delegated Regulation (EU) No 155/2013 of 18 December 2012 establishing rules related to the procedure for granting the special incentive arrangement for sustainable development and good governance under Regulation (EU) No 978/2012 of the European Parliament and of the Council applying a scheme of generalised tariff preferences (OJ L 48, 21.2.2013, p. 5).

(13) Commission Delegated Regulation (EU) No 1083/2013 of 28 August 2013 establishing rules related to the procedure for temporary withdrawal of tariff preferences and adoption of general safeguard measures under Regulation (EU) No 978/2012 of the European Parliament and the Council applying a scheme of generalised tariff preferences (OJ L 293, 5.11.2013, p. 16).

(14) Regulation (EU) 2015/476 of the European Parliament and of the Council of 11 March 2015 on the measures that the Union may take following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-subsidy matters (OJ L 83, 27.3.2015, p. 6).