Keywords

Summary



Keywords

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1 . Common commercial policy - Protection against subsidization practices of non-Member States - Commission' s discretion - Scope of the judicial review which may be prompted by undertakings whose application for protective measures has been refused .

( Council Regulation No 2176/84 )

2 . Common commercial policy - Protection against subsidization practices of non-Member States - Subsidy - Concept - Economic advantage granted through a charge on the public account

( Council Regulation No 2176/84, Art . 3 )

3 . Common commercial policy - Protection against subsidization practices of non-Member States - Subsidies not capable of justifying the introduction of countervailing duties - Domestic subsidy without "sectoral specificity" - Export subsidy strengthening the capacity of undertakings but granted in respect of a product other than the one at the origin of the injury suffered by the Community subsidy

( Council Regulation No 2176/84, Art . 3 )

4 . Common commercial policy - Protection against subsidization practices of non-Member States - Assessment of the interests of the Community - Termination of the proceedings - Commission' s discretion

( Council Regulation No 2176/84, Arts 9 ( 1 ) and 12 )

Summary

1 . Even though Regulation No 2176/84 has conferred a discretion on the Commission in regard to protection against subsidization practices of non-Member States, the Court is required to verify whether or not the Commission has observed the procedural guarantees granted to complainants by the Community provisions in question, has committed manifest errors in its assessment of the facts, has omitted to take into consideration any essential matters of such a nature as to give rise to a belief in the existence of subsidization or has based the reasons for its decision on considerations amounting to misuse of powers .

2 . The concept of subsidy in Article 3 of Regulation No 2176/84 is not expressly defined, either in that regulation or in other Community measures . However, an "illustrative list" of export subsidies, referred to in Article 3 ( 2 ) of the regulation, is annexed thereto . The last paragraph of that list defines as constituting an export subsidy in the sense of Article XVI of the GATT "any other charge on the public account ". It follows both from the terms of that general provision and from the other examples mentioned in the list that in the mind of the Community legislature the concept of export subsidy necessarily implied a financial burden borne directly or indirectly by public bodies . It also follows from Article 3 ( 3 ) of the said regulation, which expressly excludes from the concept of subsidy the exemption of a product from certain export charges or taxes, that the concept of a charge covers not merely cases in which the State advances funds but also those in which it waives recovery of tax debts, thereby introducing an exception to a generally applicable rule of taxation .

The concept of subsidy, thus understood as presupposing the grant of an economic advantage through a charge on the public account, is not incompatible with the Community' s obligations under international law, in particular under GATT and agreements concluded in the framework thereof .

3 . For a subsidy to constitute a domestic subsidy capable of justifying Community protective measures within the meaning of Article 3 of Regulation No 2176/84, it must have "sectoral specificity", that is to say, it must seek to grant an advantage only to certain undertakings, thus distorting competition .

For a subsidy to constitute an export subsidy capable of justifying Community protective measures within the meaning of the abovementioned provision, it must benefit the product the importation of which causes injury to the Community industry, a situation which is to be distinguished from that in which a subsidy is granted to undertakings exporting the said product but is so granted on account of the exportation of another product, and procures for them benefits which they may utilize in the context of their business activities taken as a whole .

4 . Although the Commission is under a duty to establish objectively the facts concerning the existence of subsidization practices and of injury caused thereby to Community undertakings, it has a very wide discretion to decide, under the powers with respect to the assessment of the interests of the Community which must be held to be vested in it by virtue of Article 9 ( 1 ) of Regulation No 2176/84, that protective measures would be inappropriate and, consequently, to terminate the proceeding .