Council Regulation (EC) No 461/2004 of 8 March 2004 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community and Regulation (EC) No 2026/97 on protection against subsidised imports from countries not members of the European Community
Date: 2004-03-08
Institutions: Council of the European Union
Subjects: anti-dumping legislation, dumping, export subsidy, import, import policy, third country

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EN

Official Journal of the European Union

13.3.2004

COUNCIL REGULATION (EC) No 461/2004

of 8 March 2004

amending Regulation (EC) No 384/96 on protection against dumped imports from countries not
members of the European Community and Regulation (EC) No 2026/97 on protection against
subsidised imports from countries not members of the European Community

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 133 thereof,

States votes in favour of such a proposal. This has the
the
that abstentions count effectively against
effect
Commission proposal. This in turn can result in a situa-
tion where a Commission proposal will not be adopted
by the Council due to the number of abstentions.

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

(3)

By Regulation (EC) No 384/96 (1)
(the Basic Anti-
dumping Regulation) and Regulation (EC) No 2026/
97 (2)
(the Basic Anti-subsidy Regulation) the Council
adopted common rules for protection against dumped,
from countries
subsidised imports
and,
which are not members of the European Communities
(the Basic Anti-Dumping Regulation and the Basic Anti-
Subsidy Regulation are hereinafter jointly referred to as
the Basic Regulations).

respectively,

for the imposition of
The Basic Regulations provide,
definitive anti-dumping and countervailing measures, a
procedure under which the Council, acting by simple
majority on a proposal by the Commission,
imposes
definitive measures.

In the light of recent experience of the application of the
Basic Regulations and in order to preserve the transpar-
ency and efficiency of the trade defence instruments, it is
considered necessary to revisit the way Community insti-
tutions work together in the process of the imposition
of definitive anti-dumping and countervailing measures.

(4)

Under the current approach, a Commission proposal
will only be adopted if a simple majority of Member

(1) 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).

(2) OJ L 288, 21.10.1997, p. 1. Regulation as last amended by Regu-

lation (EC) No 1973/2002 (OJ L 305, 7.11.2002, p. 4).

(5)

(6)

(7)

(8)

In order to address this problem effectively, the Basic
Regulations have to be amended by requiring a simple
majority of Member States in the Council to reject a
Commission proposal for imposing definitive measures.
Under this procedure, measures shall be adopted by the
Council unless the Council decides by a simple majority
to reject the proposal, within a period of one month
after submission of the proposal by the Commission.

It is expedient to apply such a procedure in order to
facilitate
the Community's decision-making process
without changing the respective roles of the Commission
and the Council in the application of the Basic Regula-
tions, and without implying any changes for the deci-
sion-making procedures in other areas of the common
commercial policy or other sectors.

For reasons of consistent application of decision-making
procedures under the Basic Regulations, the procedures
for other decisions by the Council under the Basic Regu-
lations which provide essentially the same procedure as
for the imposition of definitive measures should be
aligned as well. Accordingly, the above approach should
be adopted also for the procedures regarding reviews,
of
reinvestigation,
measures.

circumvention

suspension

and

The Basic Anti-dumping Regulation establishes manda-
investigation
tory time limits for the completion of
procedures initiated pursuant to Article 5(9) of the Basic
Anti-dumping Regulation while review investigations,
initiated pursuant to Articles 11(2), (3) and (4) and rein-
vestigations pursuant to Article 12 of the Basic Anti-
dumping Regulation, are subject to an indicative time
limit only.

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(9)

Anti-dumping measures remain in force pending the
outcome of a review pursuant to Article 11(2) of the
Basic Anti-dumping Regulation. Consequently, unusually
lengthy review investigations pursuant to such Article
may undermine legal certainty and cause adverse effects
for interested parties. Similar non desirable effects may
result from overly lengthy investigations in the context
of reviews pursuant to Articles 11(3) and (4) and rein-
vestigations pursuant to Article 12 of the Basic Anti-
dumping Regulation.

to set the mandatory time limit at nine months, as a
longer period may be necessary to complete the investi-
gation if revised normal values have to be considered. In
addition, imports subject to reinvestigation pursuant to
Article 12 may, like imports subject to 11(4) reviews,
also be subject to registration pursuant to Article 14(5).
Consequently, the same maximum time limit of nine
months as for registration should apply to reinvestiga-
tions pursuant to Article 12.

(10)

It is therefore appropriate to introduce mandatory time
limits also for the completion of review investigations
pursuant to Articles 11(2), (3) and (4) and reinvestiga-
tions pursuant to Article 12 of the Basic Anti-dumping
Regulation.

(11)

The various types of review investigations have different
potential scopes and degrees of complexity. Due account
should be given to these differences when setting the
appropriate time limits for completion.

(12)

(13)

First, reviews pursuant to Articles 11(2) and (3) of the
Basic Anti-dumping Regulation may, in certain circum-
stances, present the same complexity as new proceedings
pursuant to Article 5(9), for instance in terms of the
scope of the investigation or the number of interested
parties concerned. Consequently, while these review
investigations should normally be completed within the
existing indicative time limit of 12 months, the manda-
tory time limit for completion should be equal, but not
longer, than that of the 15-month period set for the
completion of new proceedings.

a

lesser

Second, reviews pursuant to Article 11(4) and reinvesti-
the Basic Anti-
gations pursuant
to Article 12 of
of
degree
dumping Regulation present
complexity than reviews pursuant to Articles 11(2) and
(3) of the Basic Anti-dumping Regulation. Accordingly,
the time limit for the completion of such reviews should
be shorter. For review investigations pursuant to Article
11(4), it is considered that the time limit for completion
should be set at nine months. This limit is in line with
the maximum period allowed for registration of imports
under Article 14(5) of the Basic Anti-dumping Regu-
lation. As imports are registered pending the completion
of a review pursuant to Article 11(4), the time limit for
the completion of such a review should not be longer
than the time frame during which the imports concerned
by the review may be subject to registration.

(15)

Recitals 8 to 14 apply, mutatis mutandis,
to reviews
under Articles 18, 19 and 20 of the Basic Anti-subsidy
Regulation.

(16)

(17)

It is considered prudent to provide for a phase-in of
deadlines in reviews, in view of the resulting demands
for the meeting of such deadlines on human resources.
Such a phase-in period will facilitate the appropriate
allocation of resources over time.

Information provided to Member States in the Advisory
Committee is often of a highly technical nature and
involves an elaborate economic and legal analysis. In
order to provide Member States with sufficient time to
consider this information, it should be sent at the latest
10 days before the date of a meeting set by the
Chairman of the Advisory Committee.

(18) Article 8(9) of the Basic Anti-Dumping Regulation stipu-
lates, inter alia, that in case of withdrawal of undertak-
ings by any party, a definitive duty is to be imposed in
accordance with Article 9 on the basis of the facts estab-
lished within the context of the investigation which led
to the undertakings. This provision has led to a time-
consuming double-proceeding consisting of both a
Commission Decision withdrawing the acceptance of the
undertaking and a Council Regulation re-imposing the
duty. Taking into account that this provision does not
leave any discretion to the Council as to the introduction
of a duty to be imposed following the breach or with-
drawal of an undertaking or as to its level, it is consid-
ered appropriate to modify the provisions in Articles
8(1), (5) and (9) in order to clarify the Commission's
responsibility and to allow withdrawal of an undertaking
and application of the duty by one single legal act. It is
also necessary to ensure that the withdrawal procedure
is terminated within a time limit of normally six months
and in no case more than nine months in order to
ensure a proper enforcement of the measure in force.

(14)

Third, while reinvestigations pursuant
to Article 12
should normally be completed within the existing indica-
tive time limit of six months, it is considered appropriate

(19)

Recital 18 applies, mutatis mutandis,
under Article 13 of the Basic Anti-subsidy Regulation.

to undertakings

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(20) Article 12(1) of the Basic Anti-Dumping Regulation indi-
cates that reinvestigations pursuant to that Article are
initiated on the basis of evidence submitted by the Com-
munity industry. Other interested parties may equally
have an interest
in such reinvestigations which are
aiming at correcting the effects of the absorption of the
duty by the exporter. It is therefore necessary to amend
that Article in order
to extend the possibility of
requesting the initiation of anti-absorption investigations
in
to any other interested party.
order to assess whether absorption exists or not, to
include into the notion of movement of prices the
decrease of export prices since this is one of the possible
situations in which, by lowering the price level on the
Community market, the remedial effect of the measure
may be undermined.

It is also necessary,

information to be used for
in the Basic Regulations,
monitoring price undertakings and verifying the level of
effectiveness of the measures in force. Similar provisions
need also be introduced by a new paragraph within
Article 24 of the Basic Anti-subsidy Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

(21)

Recital 20 applies, mutatis mutandis, to Article 19(3) of
the Basic Anti-subsidy Regulation.

Regulation (EC) No 384/96 is hereby amended as follows:

1. Article 8(1) shall be replaced by the following:

(22) Moreover, it has to be clarified that the increase in the
amount of the anti-dumping duty imposed following a
reinvestigation pursuant to Article 12(2) of the Basic
to be limited to the
Anti-dumping Regulation has
maximum amount
could have possibly been
absorbed, which is the amount of the duty in force prior
to that reinvestigation.

that

(23) Given that Article 13(3) of

the Basic Anti-Dumping
Regulation does not expressly mention the parties who
have the right to request the initiation of anti-circum-
vention investigations,
it is desirable to clarify which
parties have this right.

(24)

Past experience has shown that it is also desirable to
clarify which practices constitute circumvention of the
measures in place. Circumvention practices may take
place either inside or outside the Community.
is
consequently necessary to provide that exemptions from
the extended duties which may already be granted to
importers under the current Basic Anti-dumping Regu-
lation may also be granted to exporters when duties are
being extended to address circumvention taking place
outside the Community.

It

(25)

In order to ensure proper enforcement of measures, it is
advisable to amend the terms of Article 19(6) of the
Basic Anti-Dumping Regulation as regards the use of
information gathered in the context of an investigation,
for
investigation
the purposes of
within the same proceeding.

initiating another

(26)

Recitals 23 to 25 above apply, mutatis mutandis, to Arti-
cles 23 and 29(6) of the Basic Anti-subsidy Regulation.

(27)

In order to ensure a better enforcement of measures, it is
necessary to provide, in a new paragraph of Article 14
of the Basic Anti-dumping Regulation, for the possibility
for the Commission to request Member States to supply,
subject to the respect of confidentiality rules contained

a provisional

Upon condition that

‘1.
affirmative
determination of dumping and injury has been made, the
Commission may accept satisfactory voluntary undertaking
offers submitted by any exporter to revise its prices or to
cease exports at dumped prices, if, after specific consulta-
tion of the Advisory Committee,
it is satisfied that the
injurious effect of the dumping is thereby eliminated. In
such a case and as long as such undertakings are in force,
the provisional duties imposed by the Commission in
accordance with Article 7(1) or
the definitive duties
imposed by the Council in accordance with Article 9(4) as
the case may be shall not apply to the relevant imports of
the product concerned manufactured by the companies
referred to in the Commission decision accepting undertak-
ings, as subsequently amended. Price increases under such
undertakings shall not be higher than necessary to elimi-
nate the margin of dumping and they should be less than
such increases would be
the margin of dumping if
adequate
injury to the Community
industry.’;

to remove

the

2. Article 8(9) shall be replaced by the following:

‘9.
In case of breach or withdrawal of undertakings by
any party to the undertaking, or in case of withdrawal of
acceptance of the undertaking by the Commission, the
acceptance of the undertaking shall, after consultation, be
withdrawn by Commission Decision or Commission Regu-
lation, as appropriate, and the provisional duty which has
been imposed by the Commission in accordance with
Article 7 or the definitive duty which has been imposed by
the Council in accordance with Article 9(4) shall automati-
cally apply, provided that
the exporter concerned has,
except where he himself has withdrawn the undertaking,
been given an opportunity to comment.

Any interested party or Member State may submit infor-
mation showing prima facie evidence of a breach of an
undertaking. The subsequent assessment of whether or not
a breach of an undertaking has occurred shall normally be
concluded within six months, but in no case later than
nine months following a duly substantiated request. The
Commission may request the assistance of the competent
authorities of the Member States in the monitoring of
undertakings.’;

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3. Article 9(4) shall be replaced by the following:

‘4. Where the facts as finally established show that there
is dumping and injury caused thereby, and the Community
interest calls for intervention in accordance with Article
21, a definitive anti-dumping duty shall be imposed by the
Council, acting on a proposal submitted by the Commis-
sion after consultation of the Advisory Committee. The
proposal shall be adopted by the Council unless it decides
the proposal, within a
by a simple majority to reject
period of one month after its submission by the Commis-
sion. Where provisional duties are in force, a proposal for
definitive action shall be submitted not later than one
month before the expiry of such duties. The amount of the
exceed the margin of
anti-dumping duty shall not
dumping established but it should be less than the margin
if such lesser duty would be adequate to remove the injury
to the Community industry.’;

4. Article 11(5) shall be replaced by the following:

The relevant provisions of

this Regulation with
‘5.
regard to procedures and the conduct of investigations,
excluding those relating to time limits, shall apply to any
review carried out pursuant to paragraphs 2, 3 and 4 of
this Article. Reviews carried out pursuant to paragraphs 2
and 3 shall be carried out expeditiously and shall normally
be concluded within 12 months of the date of initiation of
the review. In any event, reviews pursuant to paragraphs 2
and 3 shall in all cases be concluded within 15 months of
in all
initiation. Reviews pursuant to paragraph 4 shall
cases be concluded within nine months of the date of
initiation. If a review carried out pursuant to paragraph 2
is initiated while a review under paragraph 3 is ongoing in
the same proceeding, the review pursuant to paragraph 3
shall be concluded at the same time as foreseen above for
the review pursuant to paragraph 2.

The Commission shall submit a proposal for action to the
Council not later than one month before the expiry of the
above deadlines.

If the investigation is not completed within the above
deadlines, the measures shall:

A notice announcing the actual expiry or maintenance of
the measures pursuant to this paragraph shall then be
published in the Official Journal of the European Union.’;

5. Article 12(1) shall be replaced by the following:

‘1. Where the Community industry or any other inter-
ested party submit, normally within two years from the
entry into force of the measures, sufficient information
showing that, after the original
investigation period and
prior to or following the imposition of measures, export
prices have decreased or that there has been no movement,
or insufficient movement in the resale prices or subsequent
selling prices of the imported product in the Community,
the investigation may, after consultation, be reopened to
examine whether the measure has had effects on the
abovementioned prices.

The investigation may also be reopened, under the condi-
tions set out above, at the initiative of the Commission or
at the request of a Member State.’;

6. Article 12(2),
following:

last sentence, shall be replaced by the

‘Where it is considered that the conditions of Article 12(1)
are met due to a fall in export prices which has occurred
after the original
investigation period and prior to or
following the imposition of measures, dumping margins
may be recalculated to take account of such lower export
prices.’;

7. Article 12(3) shall be replaced by the following:

‘3. Where a reinvestigation pursuant
to this Article
shows increased dumping, the measures in force may, after
consultation, be amended by the Council, acting on a
proposal from the Commission in accordance with the
new findings on export prices. The proposal shall be
adopted by the Council unless it decides by a simple
majority to reject the proposal, within a period of one
month after
submission by the Commission. The
amount of the anti-dumping duty imposed pursuant to
this Article shall not exceed twice the amount of the duty
imposed initially by the Council.’;

its

— expire in investigations pursuant to paragraph 2 of this

Article,

8. Article 12(4) shall be replaced by the following:

— expire in the case of investigations carried out pursuant
to paragraphs 2 and 3 of this Article in parallel, where
either the investigation pursuant to paragraph 2 was
initiated while a review under paragraph 3 was
ongoing in the same proceeding or where such reviews
were initiated at the same time, or

‘4.
The relevant provisions of Article 5 and 6 shall
apply to any reinvestigation carried out pursuant to this
Article, except that such reinvestigation shall be carried
out expeditiously and shall normally be concluded within
six months of the date of initiation of the reinvestigation.
In any event, such reinvestigations shall
in all cases be
concluded within nine months of initiation of the reinves-
tigation.

— remain unchanged in investigations pursuant to para-

graphs 3 and 4 of this Article.

The Commission shall submit a proposal for action to the
Council not later than one month before the expiry of the
above deadline.

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If the reinvestigation is not completed within the above
deadlines, measures shall remain unchanged. A notice
announcing the maintenance of the measures pursuant to
this paragraph shall be published in the Official Journal of
the European Union.’;

9. Article 13(1) shall be replaced by the following:

‘1.
Anti-dumping duties imposed pursuant to this Regu-
lation may be extended to imports from third countries, of
the like product, whether slightly modified or not; or to
imports of the slightly modified like product from the
country subject
thereof, when
to measures; or parts
circumvention of the measures in force is taking place.
Anti-dumping duties not exceeding the residual anti-
dumping duty imposed in accordance with Article 9(5) of
this Regulation may be extended to imports from compa-
nies benefiting from individual duties in the countries
subject to measures when circumvention of the measures
in force is taking place. Circumvention shall be defined as
a change in the pattern of trade between third countries
and the Community or between individual companies in
the country subject
to measures and the Community,
which stems from a practice, process or work for which
there is insufficient due cause or economic justification
other than the imposition of the duty, and where there is
evidence of injury or that the remedial effects of the duty
are being undermined in terms of the prices and/or quanti-
ties of the like product, and where there is evidence of
dumping in relation to the normal values previously estab-
lished for the like product, if necessary in accordance with
the provisions of Article 2.

The practice, process or work referred to in paragraph 1
includes, inter alia, the slight modification of the product
concerned to make it fall under customs codes which are
normally not subject to the measures, provided that the
modification does not alter its essential characteristics; the
consignment of the product subject to measures via third
countries; the reorganisation by exporters or producers of
their patterns and channels of sales in the country subject
to measures in order to eventually have their products
exported to the Community through producers benefiting
from an individual duty rate lower than that applicable to
the products of the manufacturers; and,
in the circum-
stances indicated below under Article 13(2), the assembly
of parts by an assembly operation in the Community or a
third country.’;

10. Article 13(3) shall be replaced by the following:

Investigations shall be initiated pursuant

to this
‘3.
Article on the initiative of
the
request of a Member State or any interested party on the
basis of sufficient evidence regarding the factors set out in
paragraph 1. Initiations shall be made, after consultation of
the Advisory Committee, by Commission Regulation

the Commission or at

which may also instruct the customs authorities to make
imports subject to registration in accordance with Article
14(5) or to request guarantees.
Investigations shall be
carried out by the Commission, which may be assisted by
customs authorities and shall be concluded within nine
months. When the facts as finally ascertained justify the
extension of measures, this shall be done by the Council,
acting on a proposal submitted by the Commission, after
consultation of
the Advisory Committee. The proposal
shall be adopted by the Council unless it decides by a
simple majority to reject the proposal, within a period of
one month after its submission by the Commission. The
extension shall take effect from the date on which registra-
tion was imposed pursuant to Article 14(5) or on which
guarantees were requested. The relevant procedural provi-
sions of this Regulation with regard to initiations and the
conduct of
to this
Article.’;

investigations shall apply pursuant

11. Article 13(4) shall be replaced by the following:

‘4.
Imports shall not be subject to registration pursuant
to Article 14(5) or measures where they are traded by
companies which benefit from exemptions. Requests for
exemptions duly supported by evidence shall be submitted
within the time limits established in the Commission Regu-
lation initiating the investigation. Where the circumventing
practice, process or work takes place outside the Com-
munity, exemptions may be granted to producers of the
product concerned that can show that they are not related
to any producer subject to the measures and that are
found not to be engaged in circumvention practices as
defined in Article 13(1) and 13(2). Where the circum-
venting practice, process or work takes place inside the
Community, exemptions may be granted to importers that
can show that they are not related to producers subject to
the measures.

These exemptions are granted by decision of the Commis-
sion after consultation of the Advisory Committee or deci-
sion of the Council imposing measures and shall remain
valid for the period and under the conditions set down
therein.

Provided that the conditions set in Article 11(4) are met,
exemptions may also be granted after the conclusion of
the investigation leading to the extension of the measures.

Provided that at least one year has lapsed from the exten-
sion of the measures, and in case the number of parties
requesting or potentially requesting an exemption is signif-
icant, the Commission may decide to initiate a review of
the extension of the measures. Any such review shall be
conducted in accordance with the provisions of Article
11(5) as applicable to reviews pursuant to Article 11(3).’;

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12. Article 14(4) shall be replaced by the following:

In the Community interest, measures

‘4.
imposed
pursuant to this Regulation may, after consultation of the
Advisory Committee, be suspended by a decision of the
Commission for a period of nine months. The suspension
may be extended for a further period, not exceeding one
year, if the Council so decides, acting on a proposal from
the Commission. The proposal shall be adopted by the
Council unless it decides by a simple majority to reject the
proposal, within a period of one month after its submis-
sion by the Commission. Measures may only be suspended
where market conditions have temporarily changed to an
extent that injury would be unlikely to resume as a result
the Community
of
industry has been given an opportunity to comment and
these comments have been taken into account. Measures
may, at any time and after consultation, be reinstated if the
reason for suspension is no longer applicable.’;

the suspension, and provided that

13.

in Article 14 the following paragraph shall be added:

‘7. Without prejudice to paragraph 6, the Commission
may request Member States, on a case by case basis, to
supply information necessary to monitor efficiently the
application of measures. In this respect, the provisions of
Articles 6(3) and 6(4) shall apply. Any data submitted by
Member States pursuant to this Article shall be covered by
the provisions of Article 19(6).’;

14. Article 15(2) shall be replaced by the following:

The Committee shall meet when convened by its
‘2.
chairman. He shall provide the Member States, as promptly
as possible, but no later than 10 working days before the
meeting, with all relevant information.’;

15. Article 19(6) shall be replaced by the following:

Information received pursuant

‘6.
to this Regulation
shall be used only for the purpose for which it was
requested. This provision shall not preclude the use of
information received in the context of one investigation
for the purpose of initiating other investigations within the
same proceeding in relation to the product concerned.’

Article 2

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

1. Article 13(1) shall be replaced by the following:

Upon condition that

‘1.
affirmative
determination of subsidisation and injury has been made,
the Commission may accept satisfactory voluntary under-
takings offers under which:

a provisional

(a) the country of origin and/or export agrees to eliminate
or limit the subsidy or take other measures concerning
its effects; or

(b) any exporter undertakes to revise its prices or to cease
exports to the area in question as long as such exports
benefit
the
Commission, after specific consultation of the Advisory
Committee, is satisfied that the injurious effect of the
subsidies is thereby eliminated.

from countervailable subsidies, so that

In such a case and as long as such undertakings are in
force, the provisional duties imposed by the Commission
in accordance with Article 12(3) and the definitive duties
imposed by the Council in accordance with Article 15(1)
shall not apply to the relevant imports of the product
concerned manufactured by the companies referred to in
the Commission decision accepting undertakings and in
any subsequent amendment of such decision.

Price increases under such undertakings shall not be higher
than is necessary to offset the amount of countervailable
subsidies, and should be less than the amount of counter-
vailable subsidies if such increases would be adequate to
remove the injury to the Community industry.’;

2. Article 13(9) shall be replaced by the following:

‘9.
In case of breach or withdrawal of undertakings by
any party to the undertaking, or in case of withdrawal of
acceptance of the undertaking by the Commission, the
acceptance of the undertaking shall, after Consultation, be
withdrawn by Commission Decision or Commission Regu-
lation, as appropriate, and the provisional duty which has
been imposed by the Commission in accordance with
Article 12 or the definitive duty which has been imposed
in accordance with Article 15(1), shall
by the Council
apply, provided that
the
the exporter concerned, or
country of origin and/or export has, except in the case of
withdrawal of the undertaking by the exporter or such
country, been given an opportunity to comment.

Any interested party or Member State may submit infor-
mation, showing prima facie evidence of a breach of an
undertaking. The subsequent assessment of whether or not
a breach of an undertaking has occurred shall normally be
concluded within six months, but in no case later than
nine months following a duly substantiated request. The
Commission may request the assistance of the competent
authorities of the Member States in the monitoring of
undertakings.’;

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3. Article 15(1) shall be replaced by the following:

‘1. Where the facts as finally established show the exis-
tence of countervailable
subsidies and injury caused
thereby, and the Community interest calls for intervention
in accordance with Article 31, a definitive countervailing
duty shall be imposed by the Council, acting on a proposal
submitted by the Commission after consultation of the
Advisory Committee. The proposal shall be adopted by the
Council unless it decides by a simple majority to reject the
proposal, within a period of one month after its submis-
sion by the Commission. Where provisional duties are in
force, a proposal
regarding definitive action shall be
submitted not later than one month before the expiry of
such duties. No measures shall be imposed if the subsidy
or subsidies are withdrawn or it has been demonstrated
that the subsidies no longer confer any benefit on the
exporters involved. The amount of the countervailing duty
shall not exceed the amount of countervailable subsidies
established but it should be less than the total amount of
countervailable subsidies if such lesser duty would be
adequate
injury to the Community
industry.’;

to remove

the

4. Article 19(3) shall be replaced by the following:

‘3. Where the countervailing duties imposed are less
than the amount of countervailable subsidies found, an
interim review may be initiated if the Community produ-
cers or any other interested party submit, normally within
two years from the entry into force of the measures, suffi-
cient evidence that, after the original investigation period
and prior to or following the imposition of measures,
export prices have decreased or that there has been no
movement, or insufficient movement of resale prices of the
imported product in the Community. If the investigation
proves the allegations to be correct, countervailing duties
may be increased to achieve the price increase required to
remove injury; however, the increased duty level shall not
exceed the amount of the countervailable subsidies.

The interim review may also be initiated, under the condi-
tions set out above, at the initiative of the Commission or
at the request of a Member State.’;

5. Article 22(1) shall be replaced by the following:

The relevant provisions of

‘1.
this Regulation with
regard to procedures and the conduct of investigations,
excluding those relating to time limits, shall apply to any
review carried out pursuant to Article 18, 19 and 20.
Reviews carried out pursuant to Articles 18 and 19 shall
be
carried out expeditiously and shall normally be
concluded within 12 months of the date of initiation of
the review. In any event, reviews pursuant to Article 18
and 19 shall in all cases be concluded within 15 months of

initiation. Reviews pursuant to Article 20 shall in all cases
be concluded within nine months of the date of initiation.
If a review carried out pursuant to Article 18 is initiated
while a review under Article 19 is ongoing in the same
proceeding, the review pursuant to Article 19 shall be
concluded at the same time as foreseen above for the
review pursuant to Article 18.

The Commission shall submit a proposal for action to the
Council not later than one month before the expiry of the
above deadlines.

If the investigation is not completed within the above
deadlines, the measures shall:

— expire in investigations pursuant to Article 18,

— expire in the case of investigations carried out pursuant
to Articles 18 and 19 in parallel, where either the
investigation pursuant to Article 18 was initiated while
a review under Article 19 was ongoing in the same
proceeding or where such reviews were initiated at the
same time, or

— remain unchanged in investigations pursuant to Arti-

cles 19 and 20.

A notice announcing the actual expiry or maintenance of
the measures pursuant to this paragraph shall be published
in the Official Journal of the European Union.’;

6. Article 23(1) shall be replaced by the following:

imposed pursuant

Countervailing duties

‘1.
to this
Regulation may be extended to imports from third coun-
tries, of the like product, whether slightly modified or not;
or to imports of the slightly modified like product from
the country subject to measures; or parts thereof, when
circumvention of the measures in force is taking place.
Countervailing duties not exceeding the residual counter-
vailing duty imposed in accordance with Article 15(2) of
this Regulation may be extended to imports from compa-
nies benefiting from individual duties in the countries
subject to measures when circumvention of the measures
in force is taking place. Circumvention shall be defined as
a change in the pattern of trade between third countries
and the Community or between individual companies in
the country subject
to measures and the Community,
which stems from a practice, process or work for which
there is insufficient due cause or economic justification
other than the imposition of the duty, and where there is
evidence of injury or that the remedial effects of the duty
are being undermined in terms of the prices and/or quanti-
ties of the like product and that the imported like product
and/or parts thereof still benefit from the subsidy.

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Official Journal of the European Union

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The practice, process or work referred to in paragraph 1
includes, inter alia, the slight modification of the product
concerned to make it fall under customs codes which are
normally not subject to the measures, provided that the
modification does not alter its essential characteristics; the
consignment of the product subject to measures via third
countries; and the reorganisation by exporters or produ-
cers of their patterns and channels of sales in the country
subject
to measures in order to eventually have their
products exported to the Community through producers
benefiting from an individual duty rate lower than that
applicable to the products of the manufacturers.’;

7. Article 23(2) and (3) shall be replaced by the following:

the Commission or at

Investigations shall be initiated pursuant

to this
‘2.
the
Article on the initiative of
request of a Member State or of any interested party on
the basis of sufficient evidence regarding the factors set out
in paragraph 1. Initiations shall be made, after consultation
of the Advisory Committee, by Commission Regulation
which may also instruct the customs authorities to make
imports subject to registration in accordance with Article
24(5) or to request guarantees.
Investigations shall be
carried out by the Commission, which may be assisted by
customs authorities and shall be concluded within nine
months. When the facts as finally ascertained justify the
extension of measures, this shall be done by the Council,
acting on a proposal submitted by the Commission after
consultation of
the Advisory Committee. The proposal
shall be adopted by the Council unless it decides by a
simple majority to reject the proposal, within a period of
one month after its submission by the Commission. The
extension shall take effect from the date on which registra-
tion was imposed pursuant to Article 24(5) or on which
guarantees were requested. The relevant procedural provi-
sions of this Regulation with regard to initiations and the
conduct of
to this
Article.

investigations shall apply pursuant

These exemptions are granted by decision of the Commis-
sion after consultation of the Advisory Committee or deci-
sion of the Council imposing measures and shall remain
valid for the period and under the conditions set down
therein.

Provided that the conditions set in Article 20 are met,
exemptions may also be granted after the conclusion of
the investigation leading to the extension of the measures.

Provided that at least one year has lapsed from the exten-
sion of the measures, and in case the number of parties
requesting or potentially requesting an exemption is signif-
icant, the Commission may decide to initiate a review of
the extension of the measures. Any such review shall be
conducted in accordance with the provisions of Article
22(1) as applicable to reviews under Article 19.’;

8. Article 24(4) shall be replaced by the following:

In the Community interest, measures

‘4.
imposed
pursuant to this Regulation may, after consultation of the
Advisory Committee, be suspended by a decision of the
Commission for a period of nine months. The suspension
may be extended for a further period, not exceeding one
year, if the Council so decides, acting on a proposal from
the Commission. The proposal shall be adopted by the
Council unless it decides by a simple majority to reject the
proposal, within a period of one month after its submis-
sion by the Commission. Measures may only be suspended
where market conditions have temporarily changed to an
extent that injury would be unlikely to resume as a result
of
the Community
industry has been given an opportunity to comment and
these comments have been taken into account. Measures
may, at any time and after consultation, be reinstated if the
reason for suspension is no longer applicable.’;

the suspension, and provided that

3.
Imports shall not be subject to registration pursuant
to Article 24(5) or measures where they are traded by
companies which benefit from exemptions. Requests for
exemptions duly supported by evidence shall be submitted
within the time limits established in the Commission Regu-
lation initiating the investigation. Where the circumventing
practice, process or work takes place outside the Com-
munity, exemptions may be granted to producers of the
product concerned that can show that they are not related
to any producer subject to the measures and that are
found not to be engaged in circumvention practices as
defined in Article 23(1). Where the circumventing practice,
process or work takes place inside the Community, exemp-
tions may be granted to importers that can show that they
are not related to producers subject to the measures.

9. In Article 24 the following paragraph shall be added:

‘7. Without prejudice to paragraph 6, the Commission
may request Member States, on a case by case basis, to
supply information necessary to monitor efficiently the
application of measures. In this respect, the provisions of
Articles 11(3) and (4) shall apply. Any data submitted by
Member States pursuant to this Article shall be covered by
the provisions of Article 29(6).’;

10. Article 25(2) shall be replaced by the following:

‘2.
The Committee shall meet when convened by its
chairman. He shall provide the Member States, as promptly
as possible, but no later than 10 working days before the
meeting, with all relevant information.’

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11. Article 29(6) shall be replaced by the following:

‘6.
Information received pursuant to this Regulation shall be used only for the purpose for which it
was requested. This provision shall not preclude the use of information received in the context of one
investigation for the purpose of initiating other investigations within the same proceeding concerning
the same like product.’

Article 3

This Regulation shall apply to all investigations initiated pursuant to Regulation (EC) No 384/96 and Regu-
lation (EC) No 2026/97 after the entry into force of this Regulation with the exception of:

(a) Article 1(3), (7), (10), (12) and (14) and Article 2(3), (7), (8) and (10) of this Regulation which shall

apply also to pending investigations; and

(b) Article 1(4) and (8) and Article 2(5) of this Regulation which shall only apply two years after the entry
into force of this Regulation to investigations initiated pursuant to Articles 11(3), 11(4) and 12 of
Regulation (EC) No 384/96 and Articles 19 and 20 of Regulation (EC) No 2026/97.

This Regulation shall enter into force on the 7th day following that of its publication in the Official Journal
of the European Union.

Article 4

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

Done at Brussels, 8 March 2004.

For the Council

The President

D. AHERN