Proposal for a COUNCIL REGULATION on the measures that may be taken by the Commission in relation to the combined effect of anti-dumping or anti-subsidy measures with safeguard measures

(presented by the Commission)

EXPLANATORY MEMORANDUM

This proposal for a Council Regulation is presented to provide the Community with the necessary legal framework to take action with a view to ensuring that a combination of safeguard measures and anti-dumping and/or anti-subsidy measures on the same import does not result in those measures having an effect greater than that intended in terms of the Community's trade defence policy and objectives, in particular, by placing an undesirably onerous burden on certain exporting producers seeking to export to the Community and thereby effectively denying them access to the Community market.

Safeguard, anti-dumping and anti-subsidy actions are governed by specific Council Regulations (the 'basic regulations') [1] which transpose into Community law the WTO Agreement on Safeguards, the WTO Agreement on implementation of Article VI of the GATT, and the WTO Agreement on Subsidies and Countervailing measures. However, these basic regulations do not specify the action to be taken, or the procedures to be followed, to remedy the above mentioned situation.

[1] Council Regulations (EC) No 519/94 (OJ L 67, 10.3.94, p.89.) and 3285/94 (OJ L 349, 31.12.94, p.53.) for safeguard measures, Council Regulation (EC) No 384/96 (OJ L 56, 6.3.1996, p.1.) for anti-dumping measures; and Council Regulation (EC) No 2026/97 (OJ L 288, 21.10.1997, p.1.) for anti-subsidy measures.

Rules established by the Community must take account of the fact that imports may become subject to both safeguard measures and anti-dumping/anti-subsidy measures at short notice, and that safeguard measures are applicable erga omnes. Therefore, it is appropriate that action can be taken in a timely manner before such a situation arises, and that such action does not affect the erga omnes nature of the safeguard measures.

In the context of the legal framework proposed, the Council, on a proposal from the Commission, depending on the particular circumstances, may adopt the following measures - amendment, suspension or repeal of anti-dumping and/or anti-subsidy measures, or the provision of exemption from such measures, either in whole or in part . The Council may also adopt any special measures which it considers appropriate in the circumstances (for example, in relation to undertakings).

To underline the temporary nature of any measures to be taken under this Regulation, the proposal stipulates that any amendment, suspension or exemption shall only apply for a limited period of time and during the period when the relevant safeguard measures are in force.

The proposal also provides that any measures taken under the Regulation would take effect from their date of entry into force, unless otherwise specified, and, therefore, would not provide the basis for the reimbursement of the duties collected prior to that date.

2003/0028 (ACC)

Proposal for a COUNCIL REGULATION on the measures that may be taken by the Commission in relation to the combined effect of anti-dumping or anti-subsidy measures with safeguard measures

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 proposal from the Commission,

Whereas:

(1) By Regulation (EC) No 384/96 [2], the Council has adopted common rules for protection against dumped imports from countries which are not members of the European Community.

[2] OJ L 56, 6.3.1996, p. 1; Regulation as last amended by Regulation (EC) No 1972/2002 (OJ L 305, 7.11.2002, p. 1).

(2) By Regulation (EC) No 2026/97 [3], the Council has adopted common rules for protection against subsidised imports from countries which are not members of the European Community.

[3] OJ L 288, 21.10.1997, p. 1; Regulation as amended by Regulation (EC) No 1973/2002 (OJ L 305, 7.11.2002, p. 4).

(3) By Regulations (EC) No 519/94 [4] and (EC) No 3285/94 of 22 December 1994 [5], the Council has adopted common rules for the adoption of safeguard measures against imports from certain countries which are not members of the European Community. Safeguard measures may take the form of tariff measures applicable either to all imports, or to those imports in excess of a pre-determined quantity. Such safeguard measures imply that the goods are eligible to enter the Community market upon payment of the relevant duties.

[4] OJ L 67, 10.3.1994, p.89; Regulation as last amended by Regulation (EC) No 1138/98 (OJ L 159, 3.6.1998, p. 1).

[5] OJ L 349, 31.12.1994, p.53; Regulation as last amended by Regulation (EC) No 2474/2000 (OJ L 286, 11.11.2000, p. 1).

(4) The importation of certain goods may be subject to both anti-dumping or anti-subsidy measures on the one hand and safeguard tariff measures on the other. The objectives of the former are to remedy market distortions created by unfair trading practices, whilst the objectives of the latter are to grant relief against such greatly increased imports.

(5) However, the combination of anti-dumping or anti-subsidy measures with safeguard tariff measures on one and the same product could have an effect greater than that intended or desirable in terms of the Community's trade defence policy and objectives. In particular, such a combination of measures could place an undesirably onerous burden on certain exporting producers seeking to export to the Community, which may have the effect of denying them access to the Community market.

(6) Consequently, exporting producers seeking to export to the Community should not be subject to undesirably onerous burdens and should continue to have access to the Community market.

(7) It is therefore desirable to ensure that the objectives of the safeguard tariff measures and anti-dumping and/or anti-subsidy measures can be met without denying those exporting producers access to the Community market.

(8) Therefore, specific provisions should be introduced to enable the Council and the Commission ("the Community institutions"), where they consider it appropriate, to take action with a view to ensuring that a combination of anti-dumping or anti-subsidy measures with safeguard tariff measures on the same product does not have such an effect.

(9) While it may be foreseeable that both the safeguard duty and the anti-dumping or anti-subsidy measures may become simultaneously applicable to the same product, it is not always possible to determine in advance at which precise point in time this may occur. Therefore, the Community institutions should be in a position to provide for such a situation in a manner ensuring sufficient predictability and legal certainty for all operators concerned.

(10) The Community institutions may consider it appropriate to amend, suspend or repeal anti-dumping and/or anti-subsidy measures or to provide for exemptions in whole or in part from any anti-dumping or countervailing duties which would otherwise be payable, or to adopt any other special measures. Any suspension or amendment of, or exemption from, anti-dumping or anti-subsidy measures should only be granted for a limited period of time.

(11) Any measures taken under this Regulation should be applicable from the date of their entry into force, unless otherwise specified therein, and should therefore not provide a basis for the reimbursement of duties collected prior to that date.

HAS ADOPTED THIS REGULATION:

Article 1

1. Where the Commission considers that a combination of anti-dumping or anti-subsidy measures with safeguard tariff measures on the same imports could lead to effects greater than is desirable in terms of the Community's trade defence policy, it may, after consultation of the Advisory Committee established by Article 15 of Regulation (EC) No 384/96 or by Article 25 of Regulation (EC) No 2026/97, propose to the Council that, acting by simple majority, it adopt such of the following measures as it deems appropriate :

(a) measures to amend, suspend or repeal existing anti-dumping and/or anti-subsidy measures;

(b) measures to exempt imports in whole or in part from anti-dumping or countervailing duties which would otherwise be payable; or,

(c) any other special measures considered appropriate in the circumstances.

2. Any amendment, suspension or exemption pursuant to paragraph 1 shall be limited in time and shall apply only when the relevant safeguard measures are in force.

Article 2

Any measure adopted pursuant to this Regulation shall apply from its date of entry into force. It shall not serve as basis for the reimbursement of duties collected prior to that date unless otherwise provided in that measure.

Article 3

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the Council

The President