Proposal for a COUNCIL REGULATION on administering imports of certain steel products from Ukraine

(presented by the Commission)

EXPLANATORY MEMORANDUM

The Community's Partnership and Cooperation Agreement with Ukraine provides that trade in certain steel products must be the subject of an Agreement between the Parties.

An agreement on trade between the EC and Ukraine in certain steel products covered the period July 1997 to 31 December, 2001. By its Decision of 19.11.2001, the Council authorised the Commission to negotiate a new Agreement for the period 2002-2004. Negotiations have been completed successfully leading to the initialling of the new Agreement on 22 June 2004. The Agreement has been adopted by the European Community.

This new Agreement sets quantitative limits for imports into the Community of certain steel products and will apply from the date of entry into force until 31.12.2004.

This proposal for a Council Regulation provides for the necessary implementing legislation.

2004/0214 (ACC)

Proposal for a COUNCIL REGULATION on administering imports of certain steel products from Ukraine (Text with EEA relevance)

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 [1],

[1] OJ C [...] [...], p. [...]

Whereas:

(1) The Partnership and Cooperation Agreement establishing a partnership between the European Communities and their Member States, of the one part, and Ukraine, of the other part [2], entered into force on 1 March 1998.

[2] OJ L 49, 19.2.1998, p. 3

(2) Article 22(1) of the Partnership and Cooperation Agreement provides that trade in certain steel products shall be governed by Title III, save for Article 14 thereof, and by the provisions of an Agreement.

(3) Such an Agreement on trade for certain steel products was concluded between the European Community and the Government of Ukraine on .... [3].

[3] See page ....of this Official Journal.

(4) It is necessary to provide the means to administer this Agreement within the Community, taking into account the experience gained during the previous agreements.

(5) It is necessary to ensure that the origin of the products in question is checked and appropriate methods of administrative cooperation are set up to this end.

(6) The effective application of the agreement requires the introduction of a requirement of a Community import licence for the entry into free circulation in the Community of the products in question together with a system for administering the grant of such Community import licences.

(7) Products placed in a free zone or imported under the arrangements governing customs warehouses, temporary importation or inward processing (suspension system) should not be counted against the limits established for the products in question.

(8) In order to ensure that these quantitative limits are not exceeded, it is necessary to establish a management procedure whereby the competent authorities of the Member States will not issue import licences before obtaining prior confirmation from the Commission that appropriate amounts remain available within the quantitative limit in question.

(9) The agreement provides for a system of cooperation between Ukraine and the Community with the aim of preventing circumvention by means of transhipment, rerouting or other means. A consultation procedure is established under which an agreement can be reached with the country concerned on an equivalent adjustment to the relevant quantitative limit when it appears that the agreement has been circumvented. Ukraine also agreed to take the necessary measures to ensure that any adjustments could be rapidly applied. In the absence of agreement with a supplier country within the time limit provided, the Community may, where clear evidence of circumvention is provided, apply the equivalent adjustment.

(10) Imports of products covered by this Regulation as from 1.January 2004 have been subjected to a licence in pursuance of Council Decision 2003/893/EC of 15 December 2003 on trade in certain steel products between the European Community and Ukraine [4]. The Agreement foresees that those quantities are to be counted against the limits established for 2004 in this Regulation.

[4] OJ L 333, 20.12.2003, p. 84.

(11) The Agreement that this Regulation is implementing enters into force on the day of its publication in the Official Journal of the European Union. Therefore, this Regulation must enter into force on that same day,

HAS ADOPTED THIS REGULATION:

Chapter I

General provisions

Article 1

Scope

1. This Regulation applies to imports of steel products listed in Annex I, originating in Ukraine.

2. The steel products shall be classified in product groups as set out in Annex I.

3. The classification of products listed in Annex I shall be based on the combined nomenclature (CN) established by Council Regulation (EEC) No 2658/87 [5]. The procedures for the application of this paragraph are laid down in chapter II section 1.

[5] OJ L 256, 7.9.1987 p. 1. Regulation as last amended by Commission Regulation (EC) No 2344/2003 (OJ L 346 , 31.12.2003 p. 38

4. The origin of the products referred to in paragraph 1 shall be determined in accordance with the rules in force in the Community.

5. The procedures for verification of the origin of the products referred to in paragraph 1 are laid down in chapters II and III.

Article 2

Quantitative limits

1. The importation into the Community of the steel products listed in Annex I originating in Ukraine shall be subject to the annual quantitative limits laid down in Annex V. The release for free circulation in the Community of the products set out in Annex I originating in Ukraine shall be subject to the presentation of an import authorization issued by the Member States' authorities in accordance with the provisions of Article 4.

The authorized imports shall be counted against the quantitative limits laid down for the year in which the products are shipped in the exporting country.

2. In order to ensure that quantities for which import authorizations are issued do not exceed at any moment the total quantitative limits for each product group, the competent authorities shall issue import authorizations only upon confirmation by the Commission that there are still quantities available within the quantitative limits for the relevant product group of steel products in respect of the supplier country, for which an importer or importers have submitted applications to the said authorities.

3. Imports of products as from 1 January 2004, for which a licence was required pursuant to Council Decision No 2003/893/EC shall be counted against the relevant limits for 2004 laid down in Annex V.

4. For the purposes of this Regulation and as from the date of its application, shipment of products shall be considered as having taken place on the date on which they were loaded onto the exporting means of transport.

Article 3

Suspensive arrangements

1. The quantitative limits referred to in Annex V shall not apply to products placed in a free zone or free warehouse or imported under the arrangements governing customs warehouses, temporary importation or inward processing (suspension system).

2. Where the products referred to in paragraph 1 are subsequently released for free circulation, either in the unaltered state or after working or processing, Article 2 (2) shall apply and the products so released shall be counted against the relevant quantitative limit set out in Annex V.

Article 4

Specific rules for the administration of Community quantitative limits

1. For the purpose of applying Article 2 (2), before issuing import authorizations, the competent authorities of the Member States shall notify the Commission of the amounts of the requests for import authorizations, supported by original export licences, which they have received. By return, the Commission shall notify its confirmation that the requested amount(s) of quantities are available for importation in the chronological order in which the notifications of the Member States have been received ('first come, first served basis').

2. The requests included in the notifications to the Commission shall be valid if they establish clearly in each case the exporting country, the product group concerned, the amounts to be imported, the number of the export licence, the quota year and the Member State in which the products are intended to be put into free circulation.

3. As far as possible, the Commission shall confirm to the authorities the full amount indicated in the requests notified for each product group of products. Moreover, the Commission shall contact the Ukrainian immediately in cases where requests notified exceed the limits in order to seek clarification and a rapid solution.

4. The competent authorities shall notify the Commission immediately after being informed of any quantity that is not used during the duration of validity of the import authorization. Such unused quantities shall automatically be transferred into the remaining quantities of the total Community quantitative limit for each product group.

5. The notifications referred to in paragraphs 1 to 4 above shall be communicated electronically within the integrated network set up for this purpose, unless for imperative technical reasons it is necessary to use other means of communication temporarily.

6. The import authorizations or equivalent documents shall be issued in accordance with chapter II.

7. The competent authorities of the Member States shall notify the Commission of any cancellation of import authorizations or equivalent documents already issued in cases where the corresponding export licences have been withdrawn or cancelled by the competent Ukrainian authorities. However, if the Commission or the competent authorities of a Member State have been informed by the competent Ukrainian authorities of the withdrawal or cancellation of an export licence after the related products have been imported into the Community, the quantities in question shall be set off against the quantitative limit for the year during which shipment of products took place.

Article 5

Statistics

1. Member States shall notify the Commission monthly, within one month of the end of each month, of the total quantities of the steel products listed in Annex I that have entered into free circulation during that month, indicating the combined nomenclature code and using the statistical units and, where appropriate, supplementary units used in that code. Imports shall be broken down in accordance with the statistical procedures in force.

2. In order to enable market trends in the products covered by this Regulation to be monitored, Member States shall communicate to the Commission, before 31 March of each year, statistical data on the imports of the preceding year.

Article 6

Circumvention

1. Where, following the enquiries carried out in accordance with the procedures set out in chapter III, the Commission notes that the information in its possession constitutes proof that products listed in Annex I originating in Ukraine have been transhipped, rerouted or otherwise imported into the Community through circumvention of the quantitative limits referred to in Article 2 and that there is a need for the necessary adjustments to be made, it shall request that consultations be opened so that agreement may be reached on an equivalent adjustment of the corresponding quantitative limits.

2. Pending the outcome of the consultations referred to in paragraph 1, the Commission may ask Ukraine concerned to take the necessary precautionary steps to ensure that adjustments to the quantitative limits agreed following such consultations may be carried out for the year in which the request for consultations was lodged or for the following year, if the quantitative limits for the current year is exhausted, where there is clear evidence of circumvention.

3. If the Community and Ukraine fail to arrive at a satisfactory solution and if the Commission notes that there is clear evidence of circumvention, it shall deduct from the quantitative limits an equivalent volume of products originating in Ukraine.

Article 7

This Regulation shall not constitute in any way a derogation from the provisions of the bilateral steel agreement on trade in certain steel products [6] which the Community has concluded with Ukraine and which, in all cases of conflict, shall prevail.

[6] See footnote 3.

Chapter II

Modalities applicable to the management of the quantitative limits

Section 1

CLASSIFICATION

Article 8

The classification of the steel products covered by this Regulation is based on the combined nomenclature (CN).

Article 9

On the initiative of the Commission or of a Member State, the tariff and statistical nomenclature section of the Customs Code Committee, which was established by Council Regulation (EEC) No 2658/87 [7] will examine urgently, in accordance with the provisions of the aforementioned Regulation, all questions concerning the classification of products covered by this Regulation within the combined nomenclature in order to classify them in the appropriate product groups.

[7] OJ L 256, 7.9.87, p.1.

Article 10

The Commission shall inform Ukraine of any changes in the combined nomenclature (CN) affecting products covered by this Regulation on their adoption by the competent authorities of the Community.

Article 11

The Commission shall inform the competent Ukrainian authorities of any decisions adopted in accordance with the procedures in force in the Community relating to classification of products covered by this Regulation, within one month at the latest of their adoption. Such communication shall include:

(a) a description of the products concerned;

(b) the relevant product group, and the combined nomenclature code (CN code);

(c) the reasons which have led to the decision.

Article 12

1. Where a classification decision adopted in accordance with Community procedures in force results in a change of classification practice or a change in the product group of any product covered by this Regulation, the competent authorities of the Member States shall provide 30 days' notice, from the date of the Commission's notification, before the decision is put into effect.

2. Products shipped before the date of application of the decision shall remain subject to earlier classification practice, provided that the goods in question are entered to importation within 60 days of that date.

Article 13

Where a classification decision adopted in accordance with the Community procedures in force referred to in Article 12 involves a product group subject to a quantitative limit, the Commission shall, where necessary, initiate consultations without delay in accordance with Article 9 , in order to reach agreement on any necessary adjustments to the corresponding quantitative limits provided for in Annex V.

Article 14

1. Without prejudice to any other provision on this subject, where the classification indicated in the documentation necessary for importation of the products covered by this Regulation differs from the classification determined by the competent authorities of the Member State into which they are to be imported, the goods in question shall be provisionally subject to the import arrangements which, in accordance with the provisions of this Regulation, are applicable to them on the basis of the classification determined by the aforementioned authorities.

2. The competent authorities of the Member States shall inform the Commission of the cases referred to in paragraph 1, indicating in particular:

a) the quantities of products involved;

b) the product group shown on the import documentation and that retained by the competent authorities;

c) the number of the export licence and the category shown.

3. The competent authorities of the Member States shall not issue a new import authorization for steel products subject to a Community quantitative limit laid down in Annex V following re-classification until they have obtained confirmation from the Commission that the amounts to be imported are available in accordance with the procedure laid down in Article 4 .

4 The Commission shall notify the exporting countries concerned of the cases referred to in this Article.

Article 15

In the cases referred to in Article 14, as well as in those cases of a similar nature raised by the competent Ukrainian authorities, the Commission, if necessary, shall enter into consultations with Ukraine, in order to reach agreement on the classification definitively applicable to the products involved in the divergence.

Article 16

The Commission, in agreement with the competent authorities of the importing Member State or States and of Ukraine, may, in the cases referred to in Article 15, determine the classification definitively applicable to the products involved in the divergence.

Article 17

When a case of divergence referred to in Article 14 cannot be resolved in accordance with Article 15, the Commission shall adopt, in accordance with the provisions of Article 10 of Regulation (EEC) No 2658/87, a measure establishing the classification of the goods in the Combined Nomenclature.

Section 2

DOUBLE-CHECKING SYSTEM

(for administering quantitative limits)

Article 18

1. The competent Ukrainian authorities shall issue an export licence in respect of all consignments of steel products subject to the quantitative limits laid down in Annex V up to the level of the said limits.

2. The original of the export licence shall be presented by the importer for the purposes of the issue of the import authorization referred to in Article 21.

Article 19

1. The export licence for quantitative limits shall conform to the specimen set out in Annex II and shall certify, inter alia, that the quantity of goods in question has been set off against the quantitative limit established for the product group concerned.

2. Each export licence shall cover only one of the product groups listed in Annex I.

Article 20

Exports shall be set off against the quantitative limits established for the year in which the products covered by the export licence have been shipped within the meaning of Article 2 (4).

Article 21

1. To the extent that the Commission pursuant to Article 4 has confirmed that the amount requested is available within the quantitative limit in question, the competent authorities of the Member States shall issue an import authorization within a maximum of five working days of the presentation by the importer of the original of the corresponding export licence. This presentation must be effected not later than 31 March of the year following that in which the goods covered by the licence have been shipped. Import authorizations shall be issued by the competent authorities of any Member State irrespective of the Member State indicated on the export licence, to the extent that the Commission, pursuant to Article 4 , has confirmed that the amount requested is available within the quantitative limit in question.

2. The import authorizations shall be valid for four months from the date of their issue. Upon duly motivated request by an importer, the competent authorities of a Member State may extend the duration of validity for a further period not exceeding four months.

3. Import authorizations shall be drawn up in the form set out in Annex III and shall be valid throughout the customs territory of the Community.

4. The declaration or request made by the importer in order to obtain the import authorization shall contain:

(a) the full name and address of the exporter;

(b) the full name and address of the importer;

(c) the exact description of the goods and the CN code(s);

(d) the country of origin of the goods;

(e the country of consignment;

(f) the appropriate product group and the quantity for the products in question;

(g) the net weight by CN heading;

(h) the cif value of the products at Community frontier by CN heading;

(i) whether the products concerned are seconds or of substandard quality;

(j) where appropriate, dates of payment and delivery and a copy of the bill of lading and of the purchase contract;

(k) date and number of the export licence;

(l) any internal code used for administrative purposes;

(m) date and signature of importer.

5. Importers shall not be obliged to import the total quantity covered by an import authorization in a single consignment.

Article 22

The validity of import authorizations issued by the authorities of the Member States shall be subject to the validity of export licences and the quantities indicated in the export licences issued by the competent Ukrainian authorities on the basis of which the import authorizations have been issued.

Article 23

Import authorizations or equivalent documents shall be issued by the competent authorities of the Member States in conformity with Article 2 (2) and without discrimination to any importer in the Community wherever the place of his establishment may be in the Community, without prejudice to compliance with other conditions required under current rules.

Article 24

1. If the Commission finds that the total quantities covered by export licences issued by Ukraine for a particular product group in any agreement year exceed the quantitative limit established for that product group, the competent licence authorities in the Member States shall be informed immediately to suspend the further issue of import authorizations. In this event, consultations shall be initiated forthwith by the Commission.

2. The competent authorities of a Member State shall refuse to issue import authorizations for products originating in Ukraine which are not covered by export licenses issued in accordance with the provisions of this chapter.

Section 3

COMMON PROVISIONS

Article 25

1. The export licence referred to in Article 18 and the certificate of origin referred to in Annex II may include additional copies duly indicated as such. They shall be drawn up in English.

2. If the documents referred to above are completed by hand, entries must be in ink and in block letters.

3. The export licences or equivalent documents and certificates of origin shall measure 210 x 297 mm. The paper shall be white writing paper, sized, not containing mechanical pulp and weighing not less than 25 g/m . Each part shall have a printed guilloche pattern background making any falsification by mechanical or chemical means apparent to the eye.

4. Only the original shall be accepted by the competent authorities in the Community as being valid for import purposes in accordance with the provisions of this Regulation.

5. Each export licence or equivalent document and the certificate of origin shall bear a standardized serial number, whether or not printed, by which it can be identified.

6. This number shall be composed of the following elements:

- two letters identifying the exporting country as follows: UA = Ukraine

- two letters identifying the Member State of intended destination as follows:

BE = Belgium

CZ = Czech Republic

DK = Denmark

DE = Germany

EE = Estonia

EL = Greece

ES = Spain

FR = France

IE = Ireland

IT = Italy

CY = Cyprus

LV = Latvia

LT = Lithuania

LU = Luxembourg

HU = Hungary

MT = Malta

NL = Netherlands

AT = Austria

PL = Poland

PT = Portugal

SI = Slovenia

SK = Slovakia

FI = Finland

SE = Sweden

GB = United Kingdom,

- a one-digit number identifying the quota year corresponding to the last figure in the year in question, e.g. '4' for 2004;

- a two-digit number identifying the issuing office in the exporting country;

- a five-digit number running consecutively from 00001 to 99999 allocated to the specific Member State of destination.

Article 26

The export licence and the certificate of origin may be issued after the shipment of the products to which they relate. In such cases they shall bear the endorsement 'issued retrospectively'.

Article 27

In the event of the theft, loss or destruction of an export licence or a certificate of origin, the exporter may apply to the competent authority which issued the document for a duplicate to be made out on the basis of the export documents in his possession. The duplicate licence or certificate issued in this way shall bear the endorsement 'duplicate'.

The duplicate shall bear the date of the original licence or certificate.

Section 4

COMMUNITY IMPORT LICENCE - COMMON FORM

Article 28

1. The forms to be used by the competent authorities of the Member States for issuing the import authorizations referred to in Article 21 shall conform to the specimen of the import licence set out in Annex III.

2. Import licence forms and extracts thereof shall be drawn up in duplicate, one copy, marked 'Holder's copy' and bearing the number 1 to be issued to the applicant, and the other, marked 'Copy for the issuing authority' and bearing the number 2, to be kept by the authority issuing the licence. For administrative purposes the competent authorities may add additional copies to form 2.

3. Forms shall be printed on white paper free of mechanical pulp, dressed for writing and weighing between 55 and 65 g/m . Their size shall be 210 x 297 mm; the type space between the lines shall be 4,24 mm (one sixth of an inch); the layout of the forms shall be followed precisely. Both sides of copy No 1, which is the licence itself, shall in addition have a red printed guilloche pattern background so as to reveal any falsification by mechanical or chemical means.

4. Member States shall be responsible for having the forms printed. The forms may also be printed by printers appointed by the Member State in which they are established. In the latter case, reference to the appointment by the Member State must appear on each form. Each form shall bear an identification of the printer's name and address or a mark enabling the printer to be identified.

5. At the time of their issue the import licences or extracts shall be given an issue number determined by the competent authorities of the Member State. The import licence number shall be notified to the Commission electronically within the integrated network set up under Article 4.

6. Licences and extracts shall be completed in the official language, or one of the official languages, of the Member State of issue.

7. In box 10 the competent authorities shall indicate the appropriate steel product group.

8. The marks of the issuing agencies and debiting authorities shall be applied by means of a stamp. However, an embossing press combined with letters or figures obtained by means of perforation, or printing on the licence may be substituted for the issuing authority's stamp. The issuing authorities shall use any tamper-proof method to record the quantity allocated in such a way as to make it impossible to insert figures or references.

9. The reverse of copy No 1 and copy No 2 shall bear a box in which quantities may be entered, either by the customs authorities when import formalities are completed, or by the competent administrative authorities when an extract is issued. If the space set aside for debits on a licence or extract thereof is insufficient, the competent authorities may attach one or more extension pages bearing boxes matching those on the reverse of copy No 1 and copy No 2 of the licence or extract. The debiting authorities shall so place their stamp that one half is on the licence or extract thereof and the other half is on the extension page. If there is more than one extension page, a further stamp shall be placed in like manner across each page and the preceding page.

10. Import licences and extracts issued, and entries and endorsements made, by the authorities of one Member State shall have the same legal effect in each of the other Member States as documents issued, and entries and endorsements made, by the authorities of such Member States.

11. The competent authorities of the Member States concerned may, where indispensable, require the contents of licences or extracts to be translated into the official language or one or the official languages of that Member State.

Chapter III

Administrative cooperation

Article 29

The Commission shall supply the Member States' authorities with the names and addresses of authorities in Ukraine competent to issue certificates of origin and export licences together with specimens of the stamps used by these authorities.

Article 30

For the steel products subject to a double-checking system Member States shall notify the Commission within the first ten days of each month of the total quantities, in the appropriate units and by country of origin and group of products, for which import authorisations have been issued during the preceding month.

Article 31

1. Subsequent verification of certificates of origin or export licences shall be carried out at random, or whenever the competent authorities of the Community have reasonable doubt as to the authenticity of the certificate of origin or export licence or as to the accuracy of the information regarding the true origin of the products in question.

In such cases the competent authorities of the Community shall return the certificate of origin or the export licence or a copy thereof to the competent Ukrainian governmental authority, giving, where appropriate, the reasons of form or substance for an enquiry. If the invoice has been submitted, such invoice or a copy thereof shall be attached to the certificate of origin or export licence or copy thereof. The competent authorities shall also forward any information that has been offered suggesting that the particulars given on the said certificate or the said licence are inaccurate.

2. The provisions of paragraph 1 shall also apply to subsequent verifications of declarations of origin.

3. The results of the subsequent verifications carried out in accordance with paragraph 1 shall be communicated to the competent authorities of the Community within three months at the latest. The information communicated shall indicate whether the disputed certificate, licence or declaration applies to the goods actually exported and whether the goods are eligible for export to the Community under this chapter. The competent authorities of the Community may also request copies of all documentation necessary to determine the facts fully, including, in particular, the origin of the goods.

4. Should such verifications reveal abuse or major irregularities in the use of declarations of origin, the Member State concerned shall inform the Commission of this fact. The Commission shall pass the information on to the other Member States. The Community may decide that imports of the products in question to the Community shall be accompanied by a certificate of Ukrainian origin referred to in Article 25(1) .

5. Random recourse to the procedure specified in this Article shall not constitute an obstacle to the release for free circulation of the products in question.

Article 32

1. Where the verification procedure referred to in Article 31 or where information available to the competent authorities of the Community indicates that the provisions of this chapter are being contravened, the said authorities shall request Ukraine to carry out appropriate enquiries or arrange for such enquiries to be carried out concerning operations which are or appear to be in contravention of the provisions of this chapter. The results of these enquiries shall be communicated to the competent authorities of the Community together with any other pertinent information enabling the true origin of the goods to be determined.

2. In pursuance of the action taken under the terms of this chapter, the competent authorities of the Community may exchange any information with the competent governmental authorities of the Republic of Ukraine which is considered to be of use in preventing the contravention of the provisions of this chapter.

3. Where it is established that the provisions of this chapter have been contravened, the Commission may take such measures as are necessary to prevent recurrence of such contravention.

Article 33

The Commission shall coordinate the action undertaken by the competent authorities of the Member States under the provisions of this chapter. The competent authorities of the Member States shall inform the Commission and the other Member States of action which they have undertaken and the results obtained.

Chapter IV

Final provisions

Article 34

Repeal

Council Decision 2003/893/EC is hereby repealed.

Article 35

Entry into force

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

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

Done at Brussels,

For the Council

The President

ANNEX I

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ANNEX II

EXPORT LICENCE

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EXPORT LICENCE

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CERTIFICATE OF ORIGIN

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CERTIFICATE OF ORIGIN

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ANNEX III

European Community import licence

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European Community import licence

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ANNEX IV

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ANNEX V

QUANTITATIVE LIMITS

(tonnes)

Products // 2004

//

SA. Flat products //

SA1. Coils // 80 007

SA2. Heavy plate // 230 879

SA3. Other flat products // 66 608

SB. Long products //

SB1. Beams // 13 481

SB2. Wire rod // 93 679

SB3. Other long products // 122 170