Proposal for a Council Regulation amending Council Regulation (EC) No 2026/1997 on the protection against subsidised imports from countries not members of the European Communities
Date: 2002-08-19
Institutions: European Commission
Subjects: World Trade Organisation, countervailing charge, export subsidy, import policy, third country

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 19.8.2002
COM(2002) 468 final

2002/0208 (ACC)

Proposal for a

COUNCIL REGULATION

amending Council Regulation (EC) No 2026/1997 on the protection against subsidised
imports from countries not members of the European Communities

(presented by the Commission)

EXPLANATORY MEMORANDUM

First, on 31 December 1999, the application of certain provisions of the WTO Agreement on
Subsidies and Countervailing Measures with regard to non-actionable subsidies expired. The
rules in the Basic Antisubsidy Regulation on non-countervailable subsidies implementing the
respective provisions in that Agreement need to be repealed to maintain the balance of rights
and obligations of the Community under that Agreement.

is appropriate to amend two further provisions under the Basic Antisubsidy
Second, it
Regulation. One amendment relates to the determination of the amount of subsidy in cases of
the provision by a government of goods or services below adequate remuneration; if there are
no prevailing market terms or conditions in the country in question, certain other benchmarks
can be used. The other amendment concerns the use of facts available; it is clarified that also
prices on the world market or third country markets can be used.

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2002/0208 (ACC)

Proposal for a

COUNCIL REGULATION

amending Council Regulation (EC) No 2026/1997 on the protection against subsidised
imports from countries not members of the European Communities

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 Commission1,

Whereas:

(1)

(2)

(3)

By Regulation (EC) No 2026/97 of 6 October 19972, the Council adopted common
rules for protection against subsidised imports from countries which are not members
of the European Communities.

Article 6 of Regulation (EC) No 2026/97 sets forth certain guidelines for the
calculation of the benefit to the recipient, including the market benchmark against
which the amount of benefit is measured. It is prudent to provide for a clarification as
to what rules should be followed in cases where a market benchmark does not exist in
the country concerned. In such a situation the benchmark should be determined by
adjusting the terms and conditions prevailing in the country concerned on the basis of
actual factors available in that country. If this is not practicable because, inter alia, such
prices or costs do no exist or are unreliable, then the appropriate benchmark should be
determined by resorting to terms and conditions in other markets.

are

and

regional

research

development

Article 4 of Regulation (EC) No 2026/97 provides that certain subsidies for
environment,
non-countervailable.
Furthermore, Article 10 (5) and (6) of that Regulation state that investigations can be
initiated to determine whether subsidies have such non-countervailable status or must
not be initiated if
they relate to certain non-countervailable subsidies. The
corresponding provisions in the WTO Agreement on Subsidies and Countervailing
Measures were due to expire on 31 December 1999 unless the Members of the WTO
decided otherwise. No such decision has been taken and therefore the relevant
provisions do not apply anymore. Accordingly , it is necessary to assess whether the
provisions on non-countervailable subsidies in Regulation (EC) No 2026/97 should be
maintained. In this respect, major trading partners of the Community no longer apply
these provisions in their countervailing investigations. In view of this, and in order to
maintain the balance of rights and obligations under the WTO Agreement on Subsidies

1

2

OJ C , , p. .
OJ L 288, 21.10.1997, p.1.

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and Countervailing Measures, it is considered appropriate to repeal the provisions of
Regulation (EC) No 2026/97 relating to non-countervailable subsidies.

(4)

Article 28 (5) of Regulation (EC) No 2026/97 specifies that, in case of use of facts
available, the information used shall be checked by reference to information from a
number of sources. It is considered useful to specify that such sources can, where
appropriate, also pertain to data concerning the world market or other representative
markets.

(5)

It is considered appropriate in the interests of legal certainty to provide that these
amendments shall apply as soon as possible to all new investigations.

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 2026/97 is amended as follows:

1.

In Article 6 (d) , the following text is added :

‘If there are no such prevailing market terms and conditions for the product or
service in question in the country of provision or purchase which can be used as
appropriate benchmarks, the following rules shall apply:

(i)

The terms and conditions prevailing in the country concerned shall be adjusted,
on the basis of actual costs, prices and other factors available in that country,
by an appropriate amount which reflects normal market terms and conditions;
or

(ii) when appropriate, the terms and conditions prevailing in the market of another
country or on the world market which are available to the recipient shall be
used.’

2.

3.

Article 4 and Article 10 (5) and (6) are repealed.

In Article 28 (5), the following sentence is added :

'Such information may include relevant data pertaining to the world market or other
representative markets, where appropriate.'

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Article 2

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

It shall apply to all investigations initiated pursuant to Council Regulation (EC) No 2026/97
after the date of entry into force of this Regulation.

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

Done at Brussels,

For the Council
The President

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