Council Regulation (EC) No 673/2005 of 25 April 2005 establishing additional customs duties on imports of certain products originating in the United States of America
Date: 2005-04-25
Institutions: Council of the European Union
Subjects: United States, import (EU), international commercial arbitration, originating product, suspension of customs duties, tariff preference, trade dispute

30.4.2005

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Official Journal of the European Union

L 110/1

I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 673/2005

of 25 April 2005

establishing additional customs duties on imports of certain products originating in the United
States of America

THE COUNCIL OF THE EUROPEAN UNION

Having regard to the Treaty
Community, and in particular Article 133 thereof,

establishing the European

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

On 27 January 2003, the Dispute Settlement Body (DSB)
of the World Trade Organisation (WTO) adopted the
Appellate Body report (1) and the Panel report (2), as
upheld by the Appellate Body report, finding that the
Continued Dumping and Subsidy Offset Act (CDSOA)
was incompatible with the United States' obligations
under the WTO agreements.

Since the United States failed to bring its legislation in
conformity with the covered agreements, the Community
requested to the DSB the authorisation to suspend the
application of
its tariff concessions and related obli-
gations under the General Agreement on Tariffs and
Trade (GATT) 1994 to the United States (3). The United
States objected to the level of
tariff
concessions and related obligations and the matter was
referred to arbitration.

suspension of

(3)

On 31 August 2004, the Arbitrator determined that the
level of nullification or impairment caused every year to

(1) United States — Offset Act (Byrd Amendment), Appellate Body
report (WT/DS217/AB/R, WT/DS234/AB/R, 16 January 2003).

(2) United States — Offset Act

(Byrd Amendment), Panel

report

(WT/DS217/R, WT/DS234/R, 16 September 2002).

(3) United States — Offset Act (Byrd Amendment), Recourse by the
the DSU

Communities

to Article

22(2)

of

European
(WT/DS217/22, 16 January 2004).

the Community was equal to 72 % of the amount of
CDSOA disbursements relating to anti-dumping or coun-
tervailing duties paid on imports from the Community
for the most recent year for which data are available at
that time, as published by the United States' authorities.
The Arbitrator concluded that
the suspension by the
Community of concessions or other obligations, in the
form of the imposition of an additional
import duty
above bound custom duties, on a list of products origi-
nating in the United States covering, on a yearly basis, a
total value of trade not exceeding the amount of nullifi-
cation or impairment would be consistent with WTO
rules. On 26 November 2004,
the DSB granted the
authorisation to suspend the application to the United
States of tariff concessions and related obligations under
GATT 1994 in accordance with the decision of the Arbi-
trator.

(4)

(5)

The CDSOA disbursements for the most recent year for
which data are available relate to the distribution of anti-
dumping and countervailing duties collected during the
Fiscal Year 2004 (1 October 2003 to 30 September
2004). On the basis of
the data published by the
United States' Customs and Border Protection, the level
of nullification or impairment caused to the Community
is calculated at USD 27,81 million. The Community may,
therefore, suspend the application of its tariff concessions
to the United States at an equivalent amount. The effect
of a 15 % ad valorem additional import duty on imports
of the products in Annex I originating in the United
States represents, over one year, a value of trade that
does not exceed USD 27,81 million. In respect of these
products, the Community should suspend the application
of its tariff concessions to the United States from 1 May
2005.

If the non-implementation of the DSB ruling and recom-
mendation persists,
the Commission should adjust
annually the level of suspension to the level of nullifi-
cation or impairment caused by the CDSOA to the
time. The Commission should
Community at
amend the list in Annex I or the rate of the additional
import duty so that the effect of the additional duty on
imports from the United States of the selected products
represents, over one year, a value of trade that does not
exceed the amount of nullification or impairment.

that

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Official Journal of the European Union

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(6)

The Commission should respect the following criteria:

Article 3

(a) The Commission should amend the rate of the addi-
removing
tional
import duty when adding or
products from the list in Annex I does not allow
to adjust the level of suspension to the level of nulli-
fication or impairment. Otherwise, the Commission
should add products to the list in Annex I if the level
of suspension increases or withdraw products from
this list if the level of suspension decreases.

from the list

(b) If products are added, the Commission should select
the products
in an
automatic fashion by following the order in which
the products are listed. As a consequence,
the
Commission should also amend the list in Annex II
by removing from it the products added to the list in
Annex I.

in Annex II

(c)

If products are withdrawn, the Commission should,
first, remove products that were added to the list in
Annex I at a later stage. The Commission should
then remove products presently in the
in
Annex I by following the order of that list.

list

(7)

(8)

The measures necessary for the implementation of this
Regulation should be
adopted in accordance with
Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing
powers conferred on the Commission (1).

To avoid circumvention of the additional duty, this Regu-
lation should enter into force on the day of its publi-
cation,

HAS ADOPTED THIS REGULATION:

The Commission shall adjust

1.
the level of suspension
annually to the level of nullification or impairment caused by
the United States' Continued Dumping and Subsidy Offset Act
(CDSOA) to the Community at that time. The Commission shall
amend the rate of the additional duty or the list in Annex I
under the following conditions:

(a) The level of nullification or impairment shall be equal to
72 % of the amount of disbursements under the CDSOA
relating to anti-dumping and countervailing duties paid on
imports from the Community for the most recent year for
which data are available at that time, as published by the
United States' authorities;

(b) The amendment shall be made so that the effect of the
additional
selected
import duty on imports of
products originating in the United States represents, over
one year, a value of trade that does not exceed the level
of nullification or impairment;

the

(c) Except in circumstances set out in point (e), when the level
of suspension increases, the Commission shall add products
to the list in Annex I. These products shall be selected from
the list in Annex II following the order of that list;

(d) Except in circumstances set out in point (e), when the level
of suspension decreases, products shall be withdrawn from
the list in Annex I. The Commission shall remove, first,
products that are presently in the list
in Annex II and
were added to the list in Annex I at a later stage. The
Commission shall then remove products that are presently
in the list in Annex I following the order of that list;

Article 1

The tariff concessions and related obligations under GATT 1994
of the Community are hereby suspended in respect of products
originating in the United States of America listed in Annex I to
this Regulation.

(e) The Commission shall amend the rate of the additional duty
when the level of suspension cannot be adjusted to the level
of nullification or
removing
products from the list in Annex I.

impairment by adding or

Article 2

An ad valorem duty of 15 % additional to the customs duty
applicable under Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code (2)
shall be imposed on the products originating in the United
States of America listed in Annex I to this Regulation.

(1) OJ L 184, 17.7.1999, p. 23.
(2) OJ L 302, 19.10.1992, p. 1. Regulation as last amended by the

2003 Act of Accession (OJ L 236, 23.9.2003, p. 33).

2. When products are added to the list in Annex I, the
Commission shall, at the same time, amend the list in Annex
II by removing those products from the list in Annex II. The
order of the products remaining in the list in Annex II shall not
be modified.

The decisions under

3.
accordance with the procedure laid down in Article 4(2).

this Article shall be adopted in

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Article 4

1.

The Commission shall be assisted by a Committee.

2. Where reference is made to this paragraph, Articles 5 and
7 of Decision 1999/468/EC shall apply.

The period laid down in Article 5(6) of Decision 1999/468/EC
shall be set at one month.

3.

The Committee shall adopt its rules of procedure.

Article 5

The origin of any product to which this Regulation applies shall
be determined in accordance with the provisions of Regulation
(EEC) No 2913/92.

Article 6

1.
Products listed in Annex I for which an import licence
with an exemption from, or a reduction of duty, was issued
before the date of entry into force of this Regulation shall not
be subject to the additional duty.

2.
Products listed in Annex I for which it can be demon-
strated that they are already en route to the Community on the
date of application of this Regulation, and whose destination
cannot be changed, shall not be subject to the additional duty.

Products listed in Annex I which are admitted free of
3.
import duties pursuant
to Council Regulation (EEC) No
918/83 of 28 March 1983 setting up a Community system
of reliefs from customs duty (1) shall not be subject to the
additional duty.

Products listed in Annex I may be placed under the
4.
customs procedure ‘Processing under Customs Control’
in
accordance with the first subparagraph of Article 551(1) of
Commission Regulation (EEC) No 2454/93 of 2 July 1993
laying down provisions for the implementation of Council
Regulation (EEC) No 2913/92 establishing the Community
Customs Code (2) only where
the
economic conditions has taken place in the Committee of the
Customs Code unless
are
mentioned in Annex 76, Part A of that Regulation.

examination of

and operations

the products

the

Article 7

The Council, acting by qualified majority on a proposal from
the Commission, shall decide on the repeal of this Regulation
once the United States of America has fully implemented the
recommendation of the WTO Dispute Settlement Body.

Article 8

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

It shall apply from 1 May 2005.

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

Done at Luxembourg, 25 April 2005.

For the Council
The President

J. ASSELBORN

(1) OJ L 105, 23.4.1983, p. 1. Regulation as last amended by the 2003

Act of Accession.

(2) OJ L 253, 11.10.1993, p. 1. Regulation as last amended by Regu-

lation (EC) No 2286/2003 (OJ L 343, 31.12.2003, p. 1).

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ANNEX I

The products on which additional duties are to apply are identified by their eight-digit CN codes. The description of
products classified under these codes can be found in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987
on the tariff and statistical nomenclature and on the Common Customs Tariff (1).

4820 10 90

4820 50 00

4820 90 00

4820 30 00

4820 10 50

6204 63 11

6204 69 18

6204 63 90

6104 63 00

6203 43 11

6103 43 00

6204 63 18

6203 43 19

6204 69 90

6203 43 90

0710 40 00

9003 19 30

8705 10 00

(1) OJ L 256, 7.9.1987, p. 1. Regulation as last amended by Council Regulation (EC) No 493/2005 (OJ L 82, 31.3.2005, p. 1).

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ANNEX II

The products in this Annex are identified by their eight-digit CN codes. The description of products classified under these
codes can be found in Annex I to Regulation (EEC) No 2658/87.

6301 40 10

6301 30 10

6301 30 90

6301 40 90

4818 50 00

9009 11 00

9009 12 00

8467 21 99

4803 00 31

4818 30 00

4818 20 10

9403 70 90

6110 90 10

6110 19 10

6110 19 90

6110 12 10

6110 11 10

6110 30 10

6110 12 90

6110 20 10

6110 11 30

6110 11 90

6110 90 90

6110 30 91

6110 30 99

6110 20 99

6110 20 91

9608 10 10

6402 19 00

6404 11 00

6403 19 00

6105 20 90

6105 20 10

6106 10 00

6206 40 00

6205 30 00

6206 30 00

6105 10 00

6205 20 00

9406 00 11

9406 00 38

6101 30 10

6102 30 10

6201 12 10

6201 13 10

6102 30 90

6201 92 00

6101 30 90

6202 93 00

6202 11 00

6201 13 90

6201 93 00

6201 12 90

6204 42 00

6104 43 00

6204 49 10

6204 44 00

6204 43 00

6203 42 31

6204 62 31