No C 83/6 Official Journal of the European Communities 26. 3. 83 
II 
(Preparatory Acts) 
COMMISSION 
Proposal for a Council Regulation on the strengthening of the common commercial 
policy with regard in particular to protection against unfair commercial practices 
(Submitted by the Commission to the Council on 1 March 1983) 
THE COUNCIL OF THE EUROPEAN 
COMMUNITIES, 
Having regard to the Treaty establishing the 
European Economic Community, and in particular 
Article 113 thereof, 
Having regard to the instruments establishing the 
common organization of agricultural markets and the 
Regulations adopted under Article 235 of the Treaty, 
applicable to goods processed from agricultural 
products, and in particular the provisions of those 
instruments which allow for derogation from the 
general principle that any quantitative restriction or 
measure having equivalent effect may be replaced 
solely by the measures provided for in those instru­
ments, 
Having regard to the proposal from the Commission, 
Whereas the common commercial policy must be 
based on uniform principles, notably with regard to 
commercial protection; whereas Council Regulation 
(EEC) No 3017/79 of 20 December 1979 on 
protection against dumped or subsidized imports 
from countries not members of the European 
Economic Community (*), as amended by Regulation 
(EEC) No 1580/82 (2), and the rules for imports laid 
down by Council Regulations (EEC) No 288/82 (J), 
(EEC) No 1765/82 (4) and (EEC) No 1766/82 (5) 
constitute important components of that policy; 
Whereas in the light of experience and of the 
conclusions of the European Council of June 1982, 
which considered that it was of the highest 
importance to defend vigorously the legitimate 
interests of the Community, it has become apparent 
that the common commercial policy needs to be 
strengthened, notably in the fields not covered by 
existing rules; 
(') OJ No L 339, 31. 12. 1979, p. 1. 
O OJNoL 178,22.6. 1982, p. 9. 
(J) OJNoL35, 9. 2. 1982, p. 1. 
(4) OJNoL 195, 5.7. 1982, p. 1. 
(5) OJNoL 195,5.7. 1982, p. 21. Whereas, to this end, it is advisable to provide the 
Community with procedures enabling it 
— to respond to any unfair commercial practice and 
to remove the injury resulting therefrom, 
— to ensure full exercise of the Community's rights; 
Whereas, in particular, the Community should be 
enabled to remove the injury resulting from third 
countries' practices whose unfair nature is evident 
from their incompatibility either with international 
law or with the rules regarding commercial policy 
commonly accepted by the Community's principal 
partners; 
Whereas the measures taken under the procedures in 
question should, however, be without prejudice to 
other measures which might be adopted directly 
pursuant to Article 113 of the Treaty; 
Whereas the Community must act in compliance with 
its international obligations; whereas where such 
obligations result from agreements, it is important, in 
order to maintain the balance of rights and 
obligations which it is the purpose of those 
agreements to establish, to take account of the in­
terpretation of the agreements by the Community's 
principal partners; 
Whereas it is necessary to confirm, by establishing a 
formal complaints procedure, the right of Community 
industry to submit to the Commission any complaint 
regarding unfair commercial practices by third 
countries; 
Whereas for the purposes of implementation of this 
Regulation there should be cooperation between the 
Member States and the Commission and, to this end, 
arrangements should be made for consultations within 
an advisory committee; 
Whereas it is appropriate to lay down clearly the 
rules of procedure to be followed during the exam­
ination, in particular the rights and obligations of the 
Community authorities and the parties involved, and 
the conditions under which interested parties may 
have access to information and may ask to be 
informed of the essential facts and considerations on 
the basis of which it is intended to recommend and 
26. 3. 83 Official Journal of the European Communities No C 83/7 
adopt measures, and of the possible nature of such 
measures; 
Whereas in conducting the defence of its commercial 
interests, the Community needs to have at its disposal 
a decision-making process which permits rapid and 
effective action, 
HAS ADOPTED THIS REGULATION: 
Article 1 
Aims 
This Regulation establishes procedures in the matter 
of commercial policy which, subject to compliance 
with existing international obligations, are aimed at: 
(a) responding to any unfair commercial practice 
attributable to a third country and removing the 
injury resulting therefrom; 
(b) ensuring full exercise of the Community's rights. 
Article 2 
Definitions 
1. For the purposes of this Regulation, the 
Community's rights shall be those pertaining to the 
fields covered by the commercial policy. 
2. For the purposes of this Regulation, unfair 
commercial practices shall be any practices attribut­
able to third countries which are incompatible with 
international law or the rules commonly accepted by 
the Community's principal partners regarding 
commercial policy. 
3. For the purposes of this Regulation, injury shall 
be any material injury caused or threatened to 
Community industry. 
4. The term 'Community industry' shall be taken 
to mean the Community producers as a whole, of 
products identical or similar to the product which is 
the subject of unfair practices or of products 
competing directly with that product, or those 
producers whose combined output constitutes a major 
proportion of total Community production of the 
products in question. 
Article 3 
Complaint on behalf of Community producers 
1. Any natural or legal person, or any association 
not having legal personality, acting on behalf of a 
Community industry which considers that it has 
suffered injury as a result of unfair commercial 
practices may lodge a written complaint. 
2. The complaint must contain sufficient evidence 
of the existence of unfair commercial practices and 
the injury resulting therefrom. Proof of injury must be given on the basis of the elements set out in 
Article 8. 
3. The complaint shall be submitted to the 
Commission, which shall inform the Member States 
without delay. 
4. The complaint may be withdrawn, in which case 
the procedure may be terminated unless such ter­
mination would not be in the interest of the 
Community. 
5. Where it becomes apparent after consultation 
that the complaint does not provide sufficient 
evidence to justify initiating an investigation, then the 
complainant shall be so informed. 
Article 4 
Referral by a Member State 
1. Any Member State may ask the Commission to 
initiate the procedures referred to in Article 1. 
2. It shall supply the Commission with the 
necessary evidence to support its request. Where 
unfair commercial practices are alleged, proof thereof 
and of the injury resulting therefrom must be given 
on the basis of the elements set out in Article 8. 
3. The Commission shall notify the Member States 
of the requests without delay. 
Article 5 
Consultation procedure 
1. For the purposes of consultations pursuant to 
this Regulation, an advisory committee, hereinafter 
referred to as 'the committee', is hereby set up and 
shall consist of representatives of each Member State, 
with a representative of the Commission as chairman. 
2. Consultations may be initiated at the request of 
a Member State or on the initiative of the 
Commission. The chairman shall provide the Member 
States, as promptly as possible, with all relevant infor­
mation in his possession. 
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, within a period of 
eight working days from such notification, shall be 
entitled to express their opinions in writing. 
5. Consultations shall in particular cover: 
(a) in the case of allegations of unfair commercial 
practices: 
— the nature of the alleged practices, 
— the existence and extent of the injury caused 
by the alleged practices, 
No C 83/8 Official Journal of the European Communities 26. 3. 83 
— the causal link between such practices and the 
injury resulting therefrom, 
— the measures which, in the circumstances, are 
appropriate to prevent or remedy the injury in 
question, and the ways and means for putting 
them into effect; 
(b) the measures which should be taken to ensure full 
exercise of the Community's rights. 
Article 6 
Community examination procedure 
1. Where, after consultation, it is apparent to the 
Commission that there is sufficient evidence to justify 
initiating an examination procedure, the Commission 
shall act as follows: 
(a) is shall announce the initiation of an examination 
procedure in the Official Journal of the European 
Communities; such announcement shall indicate 
the product and countries concerned, give a 
summary of the information received, and 
provide that all relevant information is to be 
communicated to the Commission; it shall state 
the period within which interested parties may 
make known their views in writing and may apply 
to be heard orally by the Commission in 
accordance with paragraph 5; 
(b) it shall so notify officially the representatives of 
the principal exporting country or countries 
concerned, with whom, where appropriate, 
consultations may be held; 
(c) it shall conduct the examination at Community 
level, acting in cooperation with the Member 
States. 
2. (a) If necessary, and notably in cases of 
complaints of unfair commercial practices, the 
Commission shall carry out an investigation 
into the records of importers, exporters, 
traders, agents, producers and trade 
associations and organizations, provided that 
the firms or organizations concerned give their 
consent; 
(b) where necessary, the Commission shall carry 
out investigations on the territory of third 
countries, provided that the governments of 
the countries concerned have been officially 
notified and raise no objection; 
(c) the Commission shall be assisted in its 
investigation by officials of the Member State 
on whose territory the checks are carried out, 
provided that the Member State in question so 
requests. 
3. The 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 primarily concerned, as well as the 
representatives of the principal exporting 
country or countries may inspect all infor­
mation made available to the Commission 
except for internal documents for the use of 
the Commission and its departments, provided 
that such information 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 its examination procedure. 
The persons concerned shall address a 
reasoned request in writing to the 
Commission, indicating the information 
required. 
(b) The complainants and the exporters and 
importers primarily concerned and the rep­
resentatives of the principal exporting country 
or countries, may ask to be informed of the 
essential facts and considerations on the basis 
of which it is intended to recommend a 
commercial policy measure, and also of the 
possible nature of the measure. 
(c) (i) Requests for information pursuant to (b) 
shall: 
(aa) be addressed to the Commission in 
writing, 
(bb) specify the particular issues on which 
information is sought, 
(cc) be received not later than one month 
after the announcement of initiation 
of the procedure; 
(ii) the information given by the Commission 
either orally or in writing shall not 
prejudice any decision which may be 
*- taken by the Commission or the Council. 
Confidential information shall be treated 
in accordance with Article 7; 
(iii) information shall normally be given no 
later than 15 days prior to the 
Commission's decision pursuant to Article 
13. Representations made after the infor­
mation is given shall be taken into 
consideration only if received within a 
period to be set by the Commission in 
each case, which shall be at least six days, 
due consideration being given to the 
urgency of the matter. 
5. The Commission may hear the parties 
concerned. It shall hear them if they have, within the 
period prescribed in the notice published in the 
Official Journal of the European Communities, made a 
written request for a hearing showing that they are a 
party primarily concerned by the result of the 
proceeding and that there are particular reasons why 
they should be heard orally. 
6. Furthermore, the Commission shall, on request, 
give the parties primarily concerned an opportunity to 
26. 3. 83 Official Journal of the European Communities No C 83/9 
meet, so that opposing views may be presented and 
any rebuttal argument put forward. In providing this 
opportunity the Commission shall take account of the 
wishes of the parties and of the need to preserve 
confidentiality. There shall be no obligation on any 
party to attend a meeting and failure to do so shall 
not 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 significantly impeded, 
findings may be made on the basis of the facts 
available. 
8. The Commission shall take a decision as soon as 
possible on the opening of a Community examination 
procedure following any complaint or request made 
in accordance with Articles 3 and 4; the decision shall 
normally be taken within 45 days of referral. 
9. 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 Commission extends the period to seven months. 
10. The provisions of this Article shall not prevent 
protective measures being taken at any time pursuant 
to Article 12. Immediately after the introduction of 
such measures, the Commission shall carry out any 
additional examinations it considers necessary. 
Article 7 
Confidentiality 
1. Information received in pursuance of this Regu­
lation shall be used only for the purpose for which it 
was requested. 
2. (a) Neither the Council, nor the Commission, nor 
Member States, nor the officials of any of 
these, shall reveal any information of a 
confidential nature received in pursuance of 
this Regulation, or any information provided 
on a confidential basis by a party to an exam­
ination procedure, without specific permission 
from the party 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 the reasons 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 information public or to 
authorize its disclosure in generalized or summary 
form, the information in question may be disre­
garded. 
5. This Article shall not preclude the disclosure of 
general information by the Community authorities 
and in particular of the reasons on which decisions 
taken in pursuance of this Regulation are based. Such 
disclosure must take into account the legitimate 
interest of the parties concerned that their business 
secrets should not be divulged. 
Article 8 
Examination of injury 
1. An examination of injury shall involve the 
following factors, no one or several of which can 
necessarily give decisive guidance: 
(a) the volume of Community imports or exports 
concerned, notably where there has been a 
significant increase or decrease, either in absolute 
terms or relative to production or consumption; 
(b) the prices of the Community producers' 
competitors, in particular in order to determine 
whether there has been, either in the Community 
or on third country markets, significant under­
cutting of the prices of Community producers; 
(c) the consequent impact on Community producers 
of products simjlar to the product which is the 
subject of unfair practices or of products 
competing directly with that product, as indicated 
by trends in certain economic factors such as: 
— production, 
— utilization 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 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; 
No C 83/10 Official Journal of the European Communities 26. 3. 83 
(b) export capacity in the country of origin or export, 
which is already in existence or will be oper­
ational in the foreseeable future, and the 
likelihood that the exports resulting from that 
capacity will be to the market referred to in point 
(a). 
3. Injury caused by other factors which, either 
individually or in combination, are also adversely 
affecting Community industry, must not be attributed 
to the practices under consideration. 
Article 9 
Termination of the procedure 
Where it is found as a result of the examination 
procedure that the interests of the Community do not 
require any action to be taken, the procedure shall be 
terminated in accordance with Article 13. 
Article 10 
Undertakings 
1. Where, during the course of an examination 
procedure, undertakings are offered which the 
Commission, after consulting the Member States, 
considers satisfactory, the procedure may be 
terminated without a measure being introduced, by 
means of a decision taken pursuant to Article 13. 
2. The undertakings referred to in paragraph 1 are 
those by which the authorities of the third country or 
countries concerned undertake to take all necessary 
measures: 
(a) to remove the unfair commercial practices or the 
injury resulting therefrom, or 
(b) to guarantee to the Community the full exercise 
of its rights. 
3. The Commission shall supervise compliance with 
the undertaking or undertakings, where appropriate, 
on the basis of information supplied at intervals, 
which it may request from the third countries 
concerned and check as necessary. 
Failure to supply information requested by the 
Commission will be regarded as a violation of the 
undertaking. 
4. Where an undertaking has been violated or 
evaded, or where the Commission has reason to 
believe that it has, or if the undertaking has been 
withdrawn or its renewal refused, the Commission 
shall inform the Member States forthwith and shall 
immediately take the measures which appear 
necessary. Article 11 
Adoption of commercial policy measures 
1. Where it is found as a result of the examination 
procedure that action is necessary in the interests of 
the Community in order: 
(a) to respond to any unfair commercial practice and 
remove the injury resulting therefrom, or 
(b) to ensure full exercise of the Community's rights, 
the appropriate measures shall be determined in 
accordance with the procedure set out in Article 13. 
2. Any commercial policy measures may be taken 
which are compatible with existing international 
obligations, notably: 
(a) recourse to international dispute settlement pro­
cedures, 
(b) suspension or withdrawal of any concession 
resulting from commercial policy negotiations, 
(c) the raising of existing customs duties or the intro­
duction of any other charge on imports, 
(d) the introduction of quantitative restrictions or any 
other measure modifying import or export 
conditions or otherwise affecting trade with the 
third country concerned. 
Article 12 
Protective measures 
In critical circumstances where any delay would result 
in injury which would be difficult to remedy, and 
where the Commission has sufficient evidence to 
justify immediate action to safeguard Community 
interests, it may, at the request of any Member State 
or on its own initiative, take protective measures on 
the lines of those specified in Article 11. 
Article 13 
Decision-making machinery 
1. The decisions referred to in Articles 9, 10, 11 
and 12 shall be taken by the Commission after 
consulting the Member States, which shall be notified 
by telex. Failing an appeal to the Council, decisions 
shall be applicable on expiry of a period of five days 
following such notification. v 
2. Any Member State which opposed the proposed 
measure when consulted may refer the Commission's 
decision to the Council within the period specified in 
paragraph 1; in that event, application of the 
Commission's decision shall be suspended until the 
Council has taken a decision, unless the Commission, 
in the situations referred to in Article 12, decides 
otherwise. 
26. 3. 83 Official Journal of the European Communities No C 83/11 
If, within a period of 30 days following the date of 
the Commission's notification to the Member States, 
the Council, acting by a qualified majority, has not 
decided otherwise, the Commission's decision shall 
become finally applicable. 
3. Decisions shall state the reasons on which they 
are based and shall be published in the Official 
Journal of the European Communities. Publication 
shall in particular be deemed to constitute notification 
to the countries and parties primarily concerned. 
4. The decisions referred to in Articles 9, 10, 11 
and 12 shall be taken within the shortest possible 
period, which should not normally exceed five 
months following presentation of the examination 
report. Where recourse is had to international dispute 
settlement procedures, the relevant decisions should 
be taken within three months of the conclusion of 
such procedures. 
Article 14 
This Regulation shall operate by way of complement: 
(a) to the other rules adopted in the commercial 
policy field; (b) to the rules establishing the common organization 
of agricultural markets and their implementing 
provisions; 
(c) to the specific rules adopted under Article 235 of 
the Treaty, applicable to goods processed from 
agricultural products. 
It shall operate by way of derogation from any 
provisions of the rules specified in points (b) and (c) 
which preclude the application of measures taken on 
the basis of this Regulation. 
It shall be without prejudice to other measures which 
may be taken pursuant to Article 113 of the Treaty. 
Article 15 
This Regulation shall enter into force on 
This Regulation shall be binding in its entirety and 
directly applicable in all Member States.