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
Date: 2003-02-07
Institutions: European Commission
Subjects: anti-dumping measure, common commercial policy, market access, protective clause

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 7.2.2003
COM(2003) 59 final

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

(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.

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.

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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.

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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)

(2)

(3)

By Regulation (EC) No 384/962, the Council has adopted common rules for protection
against  dumped  imports  from  countries  which  are  not  members  of  the  European
Community.

By  Regulation  (EC)  No  2026/973,  the  Council  has  adopted  common  rules  for
protection  against  subsidised  imports  from  countries  which  are  not  members  of  the
European Community.

By  Regulations  (EC)  No  519/944  and  (EC)  No  3285/94  of  22  December  19945,  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.

2

3

4

5

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).
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).
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).
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).

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(4)

(5)

(6)

(7)

(8)

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.

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.

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.

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.

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.

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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.

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

Article 3

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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