Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on protection against subsidised imports from countries not members of the European Union (codification)
Date: 2014-10-27
Institutions: European Commission
Subjects: State aid, anti-subsidy proceeding, codification of EU law, countervailing charge, export subsidy, import (EU), originating product, third country













EUR-Lex - 52014PC0660 - EN











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52014PC0660

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on protection against subsidised imports from countries not members of the European Union (codification) /* COM/2014/0660 final - 2014/0305 (COD) */









EXPLANATORY MEMORANDUM
1.           In the context of a people’s
Europe, the Commission attaches great importance to simplifying and clarifying
the law of the Union so as to make it clearer and more accessible to citizens,
thus giving them new opportunities and the chance to make use of the specific
rights it gives them.
This aim cannot be achieved so long as numerous
provisions that have been amended several times, often quite substantially,
remain scattered, so that they must be sought partly in the original instrument
and partly in later amending ones. Considerable research work, comparing many
different instruments, is thus needed to identify the current rules.
For this reason a codification of rules that
have frequently been amended is also essential if the law is to be clear and
transparent.
2.           On 1 April 1987 the Commission
decided[1]
to instruct its staff that all acts should be codified after no more than ten
amendments, stressing that this is a minimum requirement and that departments
should endeavour to codify at even shorter intervals the texts for which they
are responsible, to ensure that their provisions are clear and readily
understandable.
3.           The Conclusions of the Presidency
of the Edinburgh European Council (December 1992) confirmed this[2], stressing the
importance of codification as it offers certainty as to the law applicable to a
given matter at a given time.
Codification must be undertaken in full
compliance with the normal procedure for the adoption of acts of the Union.
Given that no changes of substance may be made
to the instruments affected by codification, the European Parliament, the
Council and the Commission have agreed, by an interinstitutional agreement
dated 20 December 1994, that an accelerated procedure may be used for the
fast-track adoption of codification instruments.
4.           The purpose of this proposal is
to undertake a codification of Council Regulation (EC) No 597/2009 of
11 June 2009 on protection against subsidised imports from countries not
members of the European Community[3].
The new Regulation will supersede the various acts incorporated in it[4]; this proposal fully
preserves the content of the acts being codified and hence does no more than
bring them together with only such formal amendments as are required by the
codification exercise itself.
5.           The codification proposal was drawn up on the basis of
a preliminary consolidation, in 22 official languages, of Regulation (EC) No 597/2009 and the
instrument amending it, carried out by the Publications Office of the European
Union, by means of a data-processing system. Where the Articles have been given
new numbers, the correlation between the old and the new numbers is shown in a
table set out in Annex VI to the codified Regulation.
ê 597/2009
(adapted)
2014/0305 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on protection against subsidised imports
from countries not members of the European Ö Union Õ (codification)
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty Ö on the Functioning of the European Union Õ , and in
particular Article Ö 207(2) Õ thereof,
Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national Parliaments,
Having regard to the opinion of the
European Economic and Social Committee[5],

Acting in accordance with the ordinary
legislative procedure,
Whereas:
ê 597/2009
recital 1 (adapted)
(1)       Council Regulation (EC) No
Ö 597/2009[6] Õ has been
substantially amended[7].
In the interests of clarity and rationality, Ö that Õ Regulation
should be codified.
ê 597/2009
recital 3 (adapted)
(2)       Annex 1A to the Agreement
establishing the Ö World
Trade Organisation Õ (‘the WTO
Agreement’) contains, inter alia, the General Agreement on Tariffs and Trade
1994 (‘the GATT 1994’), an Agreement on Agriculture (‘the Agreement on
Agriculture’), an Agreement on Implementation of Article VI of the Ö General
Agreement on Tariffs and Trade Õ 1994 and an
Agreement on Subsidies and Countervailing Measures (‘the Subsidies Agreement’).
ê 597/2009
recital 5 (adapted)
(3)       In order to ensure a Ö proper Õ and
transparent Ö application Õ of the rules
provided for in Ö the
Subsidies Agreement Õ, the language Ö of that
agreement should be reflected Õ in Ö Union Õ legislation to
the best extent possible.
ê 597/2009
recital 6
(4)       Furthermore, it seems
advisable to explain, in adequate detail, when a subsidy shall be deemed to
exist, according to which principles it shall be countervailable (in particular
whether the subsidy has been granted specifically), and according to which
criteria the amount of the countervailable subsidy is to be calculated.
ê 597/2009
recital 7 (adapted)
(5)       In determining the
existence of a subsidy, it is necessary to demonstrate that there has been a
financial contribution by a government or Ö a Õ public body
within the territory of a country, or that there has been some form of income
or price support within the meaning of Article XVI of the GATT 1994, and that a
benefit has thereby been conferred on the recipient enterprise.
ê 597/2009
recital 8
(6)       For the calculation of the
benefit to the recipient, in cases where a market benchmark does not exist in
the country concerned 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.
ê 597/2009
recital 9 (adapted)
(7)       It is desirable to Ö set
out Õ clear and
detailed guidance as to the factors which may be relevant for the determination
of whether the subsidised imports have caused material injury or are
threatening to cause injury. In demonstrating that the volume and price levels
of the imports concerned are responsible for injury sustained by a Ö Union Õ industry,
attention should be given to the effect of other factors and in particular
prevailing market conditions in the Ö Union Õ .
ê 597/2009
recital 10 (adapted)
(8)       It is advisable to define
the term ‘ Ö Union Õ industry’ and
to provide that parties related to exporters may be excluded from such
industry, and to define the term ‘related’. It is also necessary to provide for
countervailing duty action to be taken on behalf of producers in a region of
the Ö Union Õ and to Ö set
out Õ guidelines on
the definition of such region.
ê 597/2009
recital 11 (adapted)
(9)       It is necessary to Ö specify Õ who may lodge
a countervailing duty complaint, including the extent to which it should be
supported by the Ö Union Õ industry, and
the information on countervailable subsidies, injury and causation which such
complaint should contain. It is also expedient to specify the procedures for
the rejection of complaints or the initiation of proceedings.
ê 597/2009
recital 12 (adapted)
(10)     It is necessary to Ö specify Õ the manner in
which interested parties should be given notice of the information which the
authorities require. Ö Interested
parties Õ should have
ample opportunity to present all relevant evidence and to defend their
interests. It is also desirable to set out clearly the rules and procedures to
be followed during the investigation, in particular the rules whereby
interested parties are to make themselves known, present their views and submit
information within specified time limits, if such views and information are to
be taken into account. It is also appropriate to set out the conditions under
which an interested party may have access to, and comment on, information
presented by other interested parties. There should also be cooperation between
the Member States and the Commission in the collection of information.
ê 597/2009
recital 13 (adapted)
(11)     It is necessary to Ö set
out Õ the conditions
under which provisional duties may be imposed, including conditions whereby Ö provisional
duties Õ may be imposed
no earlier than 60 days from initiation and no later than nine months
thereafter. Such duties may in all cases be imposed by the Commission only for
a four‑month period.
ê 597/2009
recital 14 (adapted)
(12)     It is necessary to Ö set
out Õ procedures for
Ö accepting Õ undertakings Ö which
eliminate Õ or offset the
countervailable subsidies and injury Ö instead
of imposing Õ provisional or
definitive duties. It is also appropriate to Ö specify Õ the
consequences of Ö a Õ breach or
withdrawal of undertakings and that provisional duties may be imposed in cases
of suspected violation or where further investigation is necessary to
supplement the findings. In accepting undertakings, care should be taken that
the proposed undertakings, and their enforcement, do not lead to
anti-competitive behaviour.
ê 597/2009
recital 15
(13)     It is considered
appropriate 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.
ê 597/2009
recital 16
(14)     It is necessary to provide
that the termination of cases should, irrespective of whether definitive
measures are adopted or not, normally take place within 12 months, and in no
case later than 13 months, from the initiation of the investigation.
ê 597/2009
recital 17 (adapted)
(15)      Ö Investigations Õ or proceedings
should be terminated Ö where Õ the amount of
the subsidy is de minimis or , particularly in the case of imports
originating in developing countries, the volume of subsidised imports or the
injury is negligible, and it is appropriate to define those Ö situations Õ. Where
measures are to be imposed, it is necessary to provide for the termination of
investigations and to Ö specify Õ that measures
should be less than the amount of countervailable subsidies if such lesser
amount would remove the injury, and also to specify the method of calculating
the level of measures in cases of sampling.
ê 597/2009
recital 18 (adapted)
(16)     It is necessary to provide
for retroactive collection of provisional duties if that is deemed appropriate
and to define the circumstances which may trigger the retroactive application
of duties to avoid the undermining of the definitive measures to be applied. It
is also necessary to provide that duties may be applied retroactively in cases
of breach or withdrawal of undertakings.
ê 597/2009
recital 19
(17)     It is necessary to provide
that measures are to lapse after five years unless a review indicates that they
should be maintained. It is also necessary to provide, in cases where
sufficient evidence is submitted of changed circumstances, for interim reviews
or for investigations to determine whether refunds of countervailing duties are
warranted.
ê 597/2009
recital 20 (adapted)
(18)     Even though the Subsidies
Agreement does not contain provisions concerning circumvention of
countervailing measures, the possibility of such circumvention exists, in terms
similar, albeit not identical, to the circumvention of anti-dumping measures.
It appears therefore appropriate to Ö provide
for Õ an
anti-circumvention provision in this Regulation.
ê 597/2009
recital 21
(19)     It is desirable to clarify
which parties have the right to request the initiation of anti‑circumvention
investigations.
ê 597/2009
recital 22 (adapted)
(20)     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 Ö Union Õ . It is
consequently necessary to provide that exemptions from the extended duties
which may be granted to importers may also be granted to exporters when duties
are being Ö applied Õ to address
circumvention taking place outside the Ö Union Õ .
ê 597/2009
recital 23
(21)     It is expedient to permit
the suspension of countervailing measures where there is a temporary change in
market conditions which makes the continued imposition of such measures
temporarily inappropriate.
ê 597/2009
recital 24
(22)     It is necessary to provide
that imports under investigation may be made subject to registration upon
importation in order to enable measures to be subsequently applied against such
imports.
ê 597/2009
recital 25 (adapted)
(23)     In order to ensure proper
enforcement of measures, it is necessary that Member States monitor, and report
to the Commission, the import trade Ö of Õ products
subject to investigation or subject to measures, and also the amount of duties
collected under this Regulation. It is also necessary to provide for the
possibility for the Commission to request Member States to supply, subject to
confidentiality rules, information to be used for monitoring price undertakings
and verifying the level of effectiveness of the measures in force.
ê 597/2009
recital 27
(24)     It is expedient to provide
for verification visits to check information submitted on countervailable
subsidies and injury, such visits being, however, conditional on proper replies
to questionnaires being received.
ê 597/2009
recital 28
(25)     It is essential to provide
for sampling in cases where the number of parties or transactions is large in
order to permit completion of investigations within the appointed time limits.
ê 597/2009
recital 29
(26)     It is necessary to provide
that, where parties do not cooperate satisfactorily, other information may be
used to establish findings and that such information may be less favourable to
the parties than if they had cooperated.
ê 597/2009
recital 30
(27)     Provision should be made
for the treatment of confidential information so that business or governmental
secrets are not divulged.
ê 597/2009
recital 31 (adapted)
(28)     It is essential that
provision be made for proper disclosure of essential facts and considerations
to parties which qualify for such treatment and that such disclosure be made,
with due regard to the decision-making process in the Ö Union Õ , within a
time Ö –limit Õ which permits
parties to defend their interests.
ê 597/2009 recital
32 (adapted)
(29)     It is prudent to provide
for an administrative system under which arguments can be presented as to
whether measures are in the Ö Union’s Õ interest,
including the Ö consumers’ Õ interests, and
to Ö specify Õ the time Ö –limits Õ within which
such information has to be presented, together with the disclosure rights of
the parties concerned.
ê 597/2009
recital 33 (adapted)
(30)     In applying the rules of
the Subsidies Agreement it is essential, in order to maintain the balance of
rights and obligations which Ö that Õ agreement
sought to establish, that the Ö Union Õ take account
of Ö the Õ interpretation
Ö of those
rights and obligations Õ by the Ö Union’s Õ major trading
partners, as reflected in legislation or established practice.
ê 37/2014
Art. 1 and Annex .18 (adapted)
(31)      Ö The Õ implementation
Ö of this
Regulation Õ requires
uniform conditions for adopting provisional and definitive duties, and for the
termination of an investigation without measures. Those measures should be
adopted by the Commission in accordance with Regulation (EU) No 182/2011 of
the European Parliament and of the Council[8].
(32)     The advisory procedure
should be used for the adoption of provisional measures given the effects of
such measures and their sequential logic in relation to the adoption of
definitive measures. It should also be used for the acceptance of undertakings,
initiation and non-initiation of expiry reviews, suspension of measures,
extension of the suspension of measures and the reinstatement of measures given
the effect of such measures as compared to definitive measures. Where a delay
in the imposition of measures would cause damage which would be difficult to
repair, it is necessary to allow the Commission to adopt immediately applicable
provisional measures,
ê 597/2009
(adapted)
HAVE ADOPTED THIS REGULATION:
Article 1
Principles
1. A countervailing duty may be imposed Ö to Õ offset any
subsidy granted, directly or indirectly, for the manufacture, production,
export or transport of any product whose release for free circulation in the Ö Union Õ causes injury.
2. Notwithstanding paragraph 1, where products
are not directly imported from the country of origin but are exported to the Ö Union Õ from an
intermediate country, the provisions of this Regulation shall be fully
applicable and the transaction or transactions shall, where appropriate, be
regarded as having taken place between the country of origin and the Ö Union Õ .
Article 2
Definitions
For the purposes of this Regulation:
(a)          a product is considered to be
subsidised if it benefits from a countervailable subsidy as defined in Articles
3 and 4. Such subsidy may be granted by the government of the country of origin
of the imported product, or by the government of an intermediate country from
which the product is exported to the Ö Union Õ , known for
the purposes of this Regulation as ‘the country of export’;
(b)          ‘government’ means a government
or any public body within the territory of the country of origin or export;
(c)          ‘like product’ Ö means Õ a product
which is identical, that is to say, alike in all respects, to the product under
consideration, or, in the absence of such a product, another product which,
although not alike in all respects, has characteristics closely resembling
those of the product under consideration;
(d)          ‘injury’, unless otherwise
specified, means material injury to the Ö Union Õ industry,
threat of material injury to the Ö Union Õ industry or
material retardation of the establishment of such an industry, and shall be
interpreted in accordance with the provisions of Article 8.
Article 3
Definition of a subsidy
A subsidy shall be deemed to exist if:
1.           (a)     there is a
financial contribution by a government in the country of origin or export, that
is to say, where:
(i)      a government practice involves a
direct transfer of funds (for example, grants, loans, equity infusion),
potential direct transfers of funds or liabilities (for example, loan
guarantees);
(ii)     government revenue that is otherwise
due is forgone or not collected (for example, fiscal incentives such as tax
credits). In this regard, the exemption of an exported product from duties or
taxes borne by the like product when destined for domestic consumption, or the
remission of such duties or taxes in amounts not in excess of those which have
been accrued, shall not be deemed to be a subsidy, provided that such an
exemption is granted in accordance with the provisions of Annexes I, II and
III;
(iii)    a government provides goods or
services other than general infrastructure, or purchases goods;
(iv)    a government:
–              
makes payments to a funding mechanism, or
–              
entrusts or directs a private body to carry out
one or more of the type of functions illustrated in points (i), (ii) and (iii)
which would normally be vested in the government, and the practice, in no real
sense, differs from practices normally followed by governments;
or
(b)     there is any form of income or price
support within the meaning of Article XVI of the GATT 1994; and
2.           a benefit is thereby conferred.
Article 4
Countervailable subsidies
1. Subsidies shall be subject to
countervailing measures only if they are specific, as defined in paragraphs 2,
3 and 4.
2. In order to determine whether a subsidy
is specific to an enterprise or industry or group of enterprises or industries
(‘certain enterprises’) within the jurisdiction of the granting authority, the
following principles shall apply:
(a)          where the granting authority, or
the legislation pursuant to which the granting authority operates, explicitly
limits access to a subsidy to certain enterprises, such subsidy shall be
specific;
(b)          where the granting authority, or
the legislation pursuant to which the granting authority operates, establishes
objective criteria or conditions governing the eligibility for, and the amount
of, a subsidy, specificity shall not exist, provided that the eligibility is
automatic and that such criteria and conditions are strictly adhered to;
(c)          if, notwithstanding any
appearance of non-specificity resulting from the application of the principles
laid down in points (a) and (b), there are reasons to believe that the subsidy
may in fact be specific, other factors may be considered. Such factors are: use
of a subsidy programme by a limited number of certain enterprises; predominant
use by certain enterprises; the granting of disproportionately large amounts of
subsidy to certain enterprises; the manner in which discretion has been
exercised by the granting authority in the decision to grant a subsidy. In this
regard, information on the frequency with which applications for a subsidy are
refused or approved and the reasons for such decisions shall, in particular, be
considered.
For the purpose of point (b), ‘objective
criteria or conditions’ means criteria or conditions which are neutral, which
do not favour certain enterprises over others, and which are economic in nature
and horizontal in application, such as number of employees or size of
enterprise.
The criteria or conditions must be clearly
set out by law, regulation, or other official document, so as to be capable of
verification.
In applying point (c) of the first
subparagraph, account shall be taken of the extent of diversification of
economic activities within the jurisdiction of the granting authority, as well
as of the length of time during which the subsidy programme has been in
operation.
3. A subsidy which is limited to certain
enterprises located within a designated geographical region within the
jurisdiction of the granting authority shall be specific. The setting or
changing of generally applicable tax rates by all levels of government entitled
to do so shall not be deemed to be a specific subsidy for the purposes of this
Regulation.
4. Notwithstanding paragraphs 2 and 3, the
following subsidies shall be deemed to be specific:
(a)          subsidies contingent, in law or
in fact, whether solely or as one of several other conditions, upon export
performance, including those illustrated in Annex I;
(b)          subsidies contingent, whether
solely or as one of several other conditions, upon the use of domestic over
imported goods.
For the purposes of point (a), subsidies
shall be considered to be contingent in fact upon export performance when the
facts demonstrate that the granting of a subsidy, without having been made
legally contingent upon export performance, is in fact tied to actual or
anticipated exportation or export earnings. The mere fact that a subsidy is
accorded to enterprises which export shall not, for that reason alone, be
considered to be an export subsidy within the meaning of this provision.
5. Any determination of specificity under
the provisions of this Article shall be clearly substantiated on the basis of
positive evidence.
Article 5
Calculation of the amount of the
countervailable subsidy
The amount of countervailable subsidies
shall be calculated in terms of the benefit conferred on the recipient which is
found to exist during the investigation period for subsidisation. Normally this
period shall be the most recent accounting year of the beneficiary, but may be
any other period of at least six months prior to the initiation of the
investigation for which reliable financial and other relevant data are
available.
Article 6
Calculation of benefit to the
recipient
As regards the calculation of benefit to
the recipient, the following rules shall apply:
(a)          government provision of equity
capital shall not be considered to confer a benefit, unless the investment can
be regarded as inconsistent with the usual investment practice, including for
the provision of risk capital, of private investors in the territory of the
country of origin and/or export;
(b)          a loan by a government shall not
be considered to confer a benefit, unless there is a difference between the
amount that the firm receiving the loan pays on the government loan and the
amount that the firm would pay for a comparable commercial loan which the firm
could actually obtain on the market. In that event the benefit shall be the
difference between Ö those Õ two amounts;
(c)          a loan guarantee by a government
shall not be considered to confer a benefit, unless there is a difference
between the amount that the firm receiving the guarantee pays on a loan
guaranteed by the government and the amount that the firm would pay for a
comparable commercial loan in the absence of the government guarantee. In Ö that Õ case the
benefit shall be the difference between Ö those Õ two amounts,
adjusted for any differences in fees;
(d)          the provision of goods or
services or purchase of goods by a government shall not be considered to confer
a benefit, unless the provision is made for less than adequate remuneration or
the purchase is made for more than adequate remuneration. The adequacy of
remuneration shall be determined in relation to prevailing market conditions
for the product or service in question in the country of provision or purchase,
including price, quality, availability, marketability, transportation and other
conditions of purchase or sale.
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.
Article 7
General provisions on calculation
1. The amount of the countervailable
subsidies shall be determined per unit of the subsidised product exported to
the Ö Union Õ .
In establishing Ö that Õ amount the
following elements may be deducted from the total subsidy:
(a)          any application fee, or other costs
necessarily incurred in order to qualify for, or to obtain, the subsidy;
(b)          export taxes, duties or other
charges levied on the export of the product to the Ö Union Õ specifically
intended to offset the subsidy.
Where an interested party claims a
deduction, it must prove that the claim is justified.
2. Where the subsidy is not granted by
reference to the quantities manufactured, produced, exported or transported,
the amount of countervailable subsidy shall be determined by allocating the
value of the total subsidy, as appropriate, over the level of production, sales
or exports of the products concerned during the investigation period for
subsidisation.
3. Where the subsidy can be linked to the
acquisition or future acquisition of fixed assets, the amount of the
countervailable subsidy shall be calculated by spreading the subsidy across a
period which reflects the normal depreciation of such assets in the industry
concerned.
The amount so calculated which is
attributable to the investigation period, including that which derives from
fixed assets acquired before Ö that Õ period, shall
be allocated as described in paragraph 2.
Where the assets are non-depreciating, the
subsidy shall be valued as an interest-free loan, and be treated in accordance
with Article 6(b).
4. Where a subsidy cannot be linked to the
acquisition of fixed assets, the amount of the benefit received during the
investigation period shall in principle be attributed to Ö that Õ period, and
allocated as described in paragraph 2, unless special circumstances arise
justifying attribution over a different period.
Article 8
Determination of injury
1. A determination of injury shall be based
on positive evidence and shall involve an objective examination of:
(a)          the volume of the subsidised
imports and the effect of the subsidised imports on prices in the Ö Union Õ market for
like products; and
(b)          the consequent impact of those
imports on the Ö Union Õ industry.
2. With regard to the volume of the
subsidised imports, consideration shall be given to whether there has been a
significant increase in subsidised imports, either in absolute terms or
relative to production or consumption in the Ö Union Õ . With regard
to the effect of the subsidised imports on prices, consideration shall be given
to whether there has been significant price undercutting by the subsidised
imports as compared with the price of a like product of the Ö Union Õ industry, or
whether the effect of such imports is otherwise to depress prices to a
significant degree or prevent price increases, which would otherwise have
occurred, to a significant degree. No one or more of Ö those Õ factors can
necessarily give decisive guidance.
3. Where imports of a product from more
than one country are simultaneously subject to countervailing duty
investigations, the effects of such imports shall be cumulatively assessed only
if it is determined that:
(a)          the amount of countervailable
subsidies established in relation to the imports from each country is more than
de minimis as defined in Article 14(5) and the volume of imports from
each country is not negligible; and
(b)          a cumulative assessment of the
effects of the imports is appropriate in Ö the Õ light of the
conditions of competition between imported products and the conditions of
competition between the imported products and the like Ö Union Õ product.
4. The examination of the impact of the
subsidised imports on the Ö Union Õ industry
concerned shall include an evaluation of all relevant economic factors and
indices having a bearing on the state of the industry, including the fact that
an industry is still in the process of recovering from the effects of past
subsidisation or dumping, the magnitude of the amount of countervailable
subsidies, actual and potential decline in sales, profits, output, market
share, productivity, return on investments, utilisation of capacity, factors
affecting Ö Union Õ prices, actual
and potential negative effects on cash flow, inventories, employment, wages,
growth, ability to raise capital or investments and, in the case of
agriculture, whether there has been an increased burden on government support
programmes. This list is not exhaustive, nor can any one or more of these
factors necessarily give decisive guidance.
5. It must be demonstrated, from all the
relevant evidence presented in relation to paragraph 1, that the subsidised
imports are causing injury. Specifically, Ö that Õ shall entail a
demonstration that the volume and/or price levels identified pursuant to
paragraph 2 are responsible for an impact on the Ö Union Õ industry as
provided for in paragraph 4, and that Ö that Õ impact exists
to a degree which enables it to be classified as material.
6. Known factors other than the subsidised
imports which are injuring the Ö Union Õ industry at
the same time shall also be examined to ensure that injury caused by Ö those Õ other factors
is not attributed to the subsidised imports pursuant to paragraph 5.
Factors which may be considered in Ö that Õ respect Ö shall Õ include the
volume and prices of non-subsidised imports, contraction in demand or changes
in the patterns of consumption, restrictive trade practices of, and competition
between, third country and Ö Union Õ producers,
developments in technology and the export performance and productivity of the Ö Union Õ industry.
7. The effect of the subsidised imports
shall be assessed in relation to the production of the Ö Union Õ industry of
the like product when available data permit the separate identification of that
production on the basis of such criteria as the production process, producers’
sales and profits. If such separate identification of that production is not
possible, the effects of the subsidised imports shall be assessed by
examination of the production of the narrowest group or range of products,
including the like product, for which the necessary information can be
provided.
8. A determination of a threat of material
injury shall be based on facts and not merely on allegations, conjecture or
remote possibility. The change in circumstances which would create a situation
in which the subsidy would cause injury must be clearly foreseen and imminent.
In making a determination regarding the
existence of a threat of material injury, consideration should be given to such
factors as:
(a)          the nature of the subsidy or
subsidies in question and the trade effects likely to arise therefrom;
(b)          a significant rate of increase of
subsidised imports into the Ö Union Õ market
indicating the likelihood of substantially increased imports;
(c)          sufficient freely disposable
capacity of the exporter or an imminent Ö and Õ substantial
increase in such capacity indicating the likelihood of substantially increased
subsidised exports to the Ö Union Õ , account
being taken of the availability of other export markets to absorb any
additional exports;
(d)          whether imports are entering at
prices that would, to a significant degree, depress prices or prevent price
increases which otherwise would have occurred, and would probably increase
demand for further imports; 
(e)          inventories of the product being
investigated.
No one of the factors listed above by itself
can necessarily give decisive guidance, but the totality of the factors
considered must lead to the conclusion that further subsidised exports are
imminent and that, unless protective action is taken, material injury will
occur.
Article 9
Definition of Ö Union Õ industry
1. For the purposes of this Regulation, the
term ‘ Ö Union Õ industry’
shall be interpreted as referring to the Ö Union Õ producers as a
whole of the like products or to those of them whose collective output of the
products constitutes a major proportion, as defined in Article 10(6), of the
total Ö Union Õ production of
those products, except that:
(a)          when producers are related to the
exporters or importers, or are themselves importers of the allegedly subsidised
product, the term ‘ Ö Union Õ industry’ may
be interpreted as referring to the rest of the producers;
(b)          in exceptional circumstances the
territory of the Ö Union Õ may, for the
production in question, be divided into two or more competitive markets and the
producers within each market may be regarded as a separate industry if:
(i)      the producers within such a market
sell all or almost all of their production of the product in question in that
market; and
(ii)     the demand in that market is not to
any substantial degree met by producers of the product in question located
elsewhere in the Ö Union Õ .
In such circumstances, injury may be found to
exist even where a major portion of the total Ö Union Õ industry is
not injured, provided that there is a concentration of subsidised imports into
such an isolated market and provided further that the subsidised imports are
causing injury to the producers of all or almost all of the production within
such a market.
2. For the purpose of paragraph 1,
producers shall be considered to be related to exporters or importers only if:
(a)          one of them directly or
indirectly controls the other; or
(b)          both of them are directly or
indirectly controlled by a third person; or
(c)          together they directly or
indirectly control a third person, provided that there are grounds for
believing or suspecting that the effect of the relationship is such as to cause
the producer concerned to behave differently from non-related producers.
For the purpose of this paragraph, one
shall be deemed to control another when the former is legally or operationally
in a position to exercise restraint or direction over the latter.
3. Where the Ö Union Õ industry has
been interpreted as referring to the producers in a certain region, the
exporters or the government granting countervailable subsidies shall be given
an opportunity to offer undertakings pursuant to Article 13 in respect of the
region concerned. In such cases, when evaluating the Ö Union Õ interest of
the measures, special account shall be taken of the interest of the region. If
an adequate undertaking is not offered promptly or if the situations set out in
Article 13(9) and (10) apply, a provisional or definitive countervailing duty
may be imposed in respect of the Ö Union Õ as a whole. In
such cases the duties may, if practicable, be limited to specific producers or
exporters.
4. The provisions of Article 8(7) shall Ö be
applicable Õ to this
Article.
Article 10
Initiation
of proceedings
1. Except as provided for in paragraph 8,
an investigation to determine the existence, degree and effect of any alleged
subsidy shall be initiated upon a written complaint by any natural or legal
person, or any association not having legal personality, acting on behalf of
the Ö Union Õ industry.
The complaint may be submitted to the
Commission or to a Member State, which shall forward it to the Commission. The
Commission shall send Member States a copy of any complaint it receives. The complaint
shall be deemed to have been lodged on the first working day following its
delivery to the Commission by registered mail or the issuing of an
acknowledgement of receipt by the Commission.
Where, in the absence of any complaint, a
Member State is in possession of sufficient evidence of subsidisation and of
resultant injury to the Ö Union Õ industry, it
shall immediately communicate such evidence to the Commission.
2. A complaint, Ö under Õ paragraph 1,
shall include sufficient evidence of the existence of countervailable subsidies
(including, if possible, of their amount), injury and a causal link between the
allegedly subsidised imports and the alleged injury. The complaint shall
contain such information as is reasonably available to the complainant on the
following:
(a)          the identity of the complainant
and a description of the volume and value of the Ö Union Õ production of
the like product by the complainant. Where a written complaint is made on
behalf of the Ö Union Õ industry, the
complaint shall identify the industry on behalf of which the complaint is made
by a list of all known Ö Union Õ producers of
the like product (or associations of Ö Union Õ producers of
the like product) and, to the extent possible, a description of the volume and
value of Ö Union Õ production of
the like product accounted for by such producers;
(b)          a complete description of the
allegedly subsidised product, the names of the country or countries of origin
or export in question, the identity of each known exporter or foreign producer
and a list of known persons importing the product in question;
(c)          evidence with regard to the
existence, amount, nature and countervailability of the subsidies in question;
(d)           Ö the Õ changes in the
volume of the allegedly subsidised imports, the effect of those imports on prices
of the like product in the Ö Union Õ market and the
consequent impact of the imports on the Ö Union Õ industry, as
demonstrated by relevant factors and indices having a bearing on the state of the
Ö Union Õ industry, such
as those listed in Article 8(2) and (4).
3. The Commission shall, as far as
possible, examine the accuracy and adequacy of the evidence provided in the
complaint, to determine whether there is sufficient evidence to justify the
initiation of an investigation.
4. An investigation may be initiated in
order to determine whether or not the alleged subsidies are ‘specific’ within
the meaning of Article 4(2) and (3).
5. An investigation may also be initiated
in respect of measures of the type listed in Annex IV, to the extent that they
contain an element of subsidy as defined by Article 3, in order to determine
whether the measures in question fully conform to the provisions of that Annex.
6. An investigation shall not be initiated
pursuant to paragraph 1 unless it has been determined, on the basis of an
examination as to the degree of support for, or opposition to, the complaint
expressed by Ö Union Õ producers of
the like product, that the complaint has been made by or on behalf of the Ö Union Õ industry. The
complaint shall be considered to have been made by or on behalf of the Ö Union Õ industry if it
is supported by those Ö Union Õ producers
whose collective output constitutes more than 50 % of the total production
of the like product produced by that portion of the Ö Union Õ industry
expressing either support for or opposition to the complaint. However, no
investigation shall be initiated when Ö Union Õ producers
expressly supporting the complaint account for less than 25 % of total
production of the like product produced by the Ö Union Õ industry.
7. The authorities shall Ö avoid Õ , unless a
decision has been made to initiate an investigation, any publicising of the
complaint seeking the initiation of an investigation. However, as soon as
possible after receipt of a properly documented complaint pursuant to this
Article, and in any event before the initiation of an investigation, the
Commission shall notify the country of origin and/or export concerned, which
shall be invited for consultations with the aim of clarifying the situation as
to matters referred to in paragraph 2 and arriving at a mutually agreed
solution.
ê 37/2014
Art. 1 and Annex .18(1) 
8. If, in special circumstances, the
Commission decides to initiate an investigation without having received a
written complaint by or on behalf of the Union industry for the initiation of
such an investigation, this shall be done on the basis of sufficient evidence
of the existence of countervailable subsidies, injury and causal link, as
described in paragraph 2, to justify such initiation. The Commission shall
provide information to the Member States once it has determined the need to
initiate such an investigation.
ê 597/2009
(adapted)
9. The evidence Ö of Õ both subsidies
and injury shall be considered simultaneously in the decision on whether or not
to initiate an investigation. A complaint shall be rejected where there is
insufficient evidence of either countervailable subsidies or of injury to
justify proceeding with the case. Proceedings shall not be initiated against
countries whose imports represent a market share of below 1 %, unless such
countries collectively account for 3 % or more of Ö Union Õ consumption.
10. The complaint may be withdrawn prior to
initiation, in which case it shall be considered not to have been lodged.
ê 37/2014
Art. 1 and Annex .18(2) (adapted)
11. Where it is apparent that there is
sufficient evidence to justify initiating proceedings, the Commission shall do
so within 45 days of the date Ö on
which Õ the complaint Ö was
lodged Õ and shall
publish a notice in the Official Journal of the European Union. Where
insufficient evidence has been presented, the complainant shall be so informed
within 45 days of the date on which the complaint is lodged with the
Commission. The Commission shall provide information to the Member States
concerning its analysis of the complaint normally within 21 days of the date on
which the complaint is lodged with the Commission.
ê 597/2009
(adapted)
12. The notice of initiation of the
proceedings shall announce the initiation of an investigation, indicate the
product and countries concerned, give a summary of the information received,
and provide that all relevant information is to be communicated to the
Commission.
It shall state the periods within which
interested parties may make themselves known, present their views in writing
and submit information, if such views and information are to be taken into
account during the investigation. It shall also state the period within which
interested parties may apply to be heard by the Commission in accordance with
Article 11(5).
13. The Commission shall advise the
exporters, importers and representative associations of importers or exporters
known to it to be concerned, as well as the country of origin and/or export and
the complainants, of the initiation of the proceedings and, with due regard to
the protection of confidential information, provide the full text of the
written complaint referred to in paragraph 1 to the known exporters and to the
authorities of the country of origin and/or export, and make it available upon
request to other interested parties involved. Where the number of exporters
involved is particularly high, the full text of the written complaint may
instead be provided only to the authorities of the country of origin and/or
export or to the relevant trade association.
14. A countervailing duty investigation
shall not hinder the procedures of customs clearance.
Article 11
The investigation
1. Following the initiation of proceedings,
the Commission, acting in cooperation with the Member States, shall commence an
investigation at Ö Union Õ level. Such
investigation shall cover both subsidisation and injury, and these shall be
investigated simultaneously.
For the purpose of a representative
finding, an investigation period shall be selected which in the case of
subsidisation shall, normally, cover the investigation period provided for in
Article 5.
Information relating to a period subsequent
to the investigation period shall not, normally, be taken into account.
2. Parties receiving questionnaires used in
a countervailing duty investigation shall be given at least 30 days to reply.
The time limit for exporters shall be counted from the date of receipt of the
questionnaire, which for this purpose shall be deemed to have been received one
week from the day on which it was sent to the respondent or transmitted to the
appropriate diplomatic representative of the country of origin and/or export.
An extension to the 30-day period may be granted, due account being taken of
the time limits of the investigation, provided that the party shows due cause
for such extension, in terms of its particular circumstances.
3. The Commission may request Member States
to supply information, and Member States shall take whatever steps are
necessary in order to give effect to such requests.
They shall send to the Commission the
information requested together with the results of all inspections, checks or
investigations carried out.
Where Ö that Õ information is
of general interest or where its transmission has been requested by a Member State, the Commission shall forward it to the Member States, provided it is not
confidential, in which case a non-confidential summary shall be forwarded.
4. The Commission may request Member States
to carry out all necessary checks and inspections, particularly amongst
importers, traders and Ö Union Õ producers, and
to carry out investigations in third countries, provided that the firms
concerned give their consent and that the government of the country in question
has been officially notified and raises no objection.
Member States shall take whatever steps are
necessary in order to give effect to such requests from the Commission.
Officials of the Commission shall be
authorised, if the Commission or a Member State so requests, to assist the
officials of Member States in carrying out their duties.
5. The interested parties which have made
themselves known in accordance with the second subparagraph of Article 10(12),
shall be heard if they have, within the period prescribed in the notice
published in the Official Journal of the European Union, made a written
request for a hearing showing that they are an interested party likely to be
affected by the result of the proceedings and that there are particular reasons
why they should be heard.
6. Opportunities shall, on request, be
provided for the importers, exporters and the complainants, which have made
themselves known in accordance with the second subparagraph of Article 10(12),
and the government of the country of origin and/or export, to meet those
parties having adverse interests, so that opposing views may be presented and
rebuttal arguments offered.
Provision of such opportunities must take
account of the need to preserve confidentiality and of the convenience to the
parties.
There shall be no obligation on any party
to attend a meeting, and failure to do so shall not be prejudicial to that
party’s case.
Oral information provided under this
paragraph shall be taken into account by the Commission in so far as it is
subsequently confirmed in writing.
7. The complainants, the government of the
country of origin and/or export, importers and exporters and their
representative associations, users and consumer organisations, which have made
themselves known in accordance with the second subparagraph of Article 10(12),
may, upon written request, inspect all information made available to the
Commission by any party to an investigation, as distinct from internal
documents prepared by the authorities of the Ö Union Õ or its Member
States, which is relevant to the presentation of their cases and is not
confidential within the meaning of Article 29, and is used in the
investigation.
Such parties may respond to such information
and their comments shall be taken into consideration wherever they are
sufficiently substantiated in the response.
8. Except in circumstances provided for in
Article 28, the information which is supplied by interested parties and upon
which findings are based shall be examined for accuracy as far as possible.
9. For proceedings initiated pursuant to
Article 10(11), an investigation shall, whenever possible, be concluded within
one year. In any event, such investigations shall in all cases be concluded
within 13 months of their initiation, in accordance with the findings made
pursuant to Article 13 for undertakings or the findings made pursuant to
Article 15 for definitive action.
10. Throughout the investigation, the
Commission shall afford the country of origin and/or export a reasonable
opportunity to continue consultations with a view to clarifying the factual
situation and arriving at a mutually agreed solution.
Article 12
Provisional measures
1. Provisional duties may be imposed if:
(a)          proceedings have been initiated
in accordance with Article 10;
ê 37/2014
Art. 1 and Annex .18(3)
(b)          a notice has been given to that
effect and interested parties have been given an adequate opportunity to submit
information and make comments in accordance with the second subparagraph of
Article 10(12);
ê 597/2009
(adapted)
(c)          a provisional affirmative
determination has been made that the imported product benefits from
countervailable subsidies and of consequent injury to the Ö Union Õ industry; and
(d)          the Ö Union Õ interest calls
for intervention to prevent such injury.
The provisional duties shall be imposed no
earlier than 60 days from the initiation of the proceedings but no later than
nine months from the initiation of the proceedings.
The amount of the provisional
countervailing duty shall not exceed the total amount of countervailable
subsidies as provisionally established but it should be less than this amount,
if such lesser duty would be adequate to remove the injury to the Ö Union Õ industry.
2. Provisional duties shall be secured by a
guarantee and the release of the products concerned for free circulation in the
Ö Union Õ shall be
conditional upon the provision of such guarantee.
ê 37/2014
Art. 1 and Annex .18(3)
3. The Commission shall adopt provisional
measures in accordance with the procedure referred to in Article 25(4).
ê 597/2009
4. Where a Member State requests immediate
intervention by the Commission and where the conditions of the first and second
subparagraphs of paragraph 1 are met, the Commission shall, within a maximum of
five working days from receipt of the request, decide whether a provisional
countervailing duty shall be imposed.
5. Provisional countervailing duties shall
be imposed for a maximum period of four months.
Article 13
Undertakings
ê 37/2014
Art. 1 and Annex .18(4) (adapted)
1. On the condition that a provisional
affirmative determination of subsidisation and injury has been made, the
Commission may in accordance with the advisory procedure referred to in Article
25(2) accept satisfactory voluntary undertakings offers under which:
(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 from countervailable subsidies, so that the Commission is satisfied
that the injurious effect of the subsidies 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 12(3) and the definitive duties imposed 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, Ö as subsequently
amended Õ.
Price increases under such undertakings
shall not be higher than necessary to offset the amount of countervailable
subsidies, and should be less than the amount of countervailable subsidies if
such increases would be adequate to remove the injury to the Union industry.
ê 597/2009
2. Undertakings may be suggested by the
Commission, but no country or exporter shall be obliged to enter into such an
undertaking. The fact that countries or exporters do not offer such
undertakings, or do not accept an invitation to do so, shall in no way
prejudice consideration of the case.
However, it may be determined that a threat
of injury is more likely to be realised if the subsidised imports continue.
Undertakings shall not be sought or accepted from countries or exporters unless
a provisional affirmative determination of subsidisation and injury caused by
such subsidisation has been made.
Save in exceptional circumstances,
undertakings may not be offered later than the end of the period during which
representations may be made pursuant to Article 30(5).
3. Undertakings offered need not be
accepted if their acceptance is considered impractical, such as where the
number of actual or potential exporters is too great, or for other reasons,
including reasons of general policy. The exporter and/or the country of origin
and/or export concerned may be provided with the reasons for which it is
proposed to reject the offer of an undertaking and may be given an opportunity
to make comments thereon. The reasons for rejection shall be set out in the
definitive decision.
4. Parties which offer an undertaking shall
be required to provide a non-confidential version of such undertaking, so that
it may be made available to interested parties to the investigation.
ê 37/2014
Art. 1 and Annex .18(4)
5. Where undertakings are accepted the
investigation shall be terminated. The Commission shall terminate the
investigation in accordance with the examination procedure referred to in
Article 25(3).
ê 597/2009
è1 37/2014 Art. 1 and Annex .18(4)
6. If the undertakings are accepted, the
investigation of subsidisation and injury shall normally be completed. In such
a case, if a negative determination of subsidisation or injury is made, the
undertaking shall automatically lapse, except in cases where such a
determination is due in large part to the existence of an undertaking. In such
cases, it may be required that an undertaking be maintained for a reasonable
period.
In the event that an affirmative
determination of subsidisation and injury is made, the undertaking shall
continue consistent with its terms and the provisions of this Regulation.
7. The Commission shall require any country
or exporter from whom undertakings have been accepted to provide, periodically,
information relevant to the fulfilment of such undertaking, and to permit
verification of pertinent data. Non-compliance with such requirements shall be
construed as a breach of the undertaking.
8. Where undertakings are accepted from
certain exporters during the course of an investigation, they shall, for the
purpose of Articles 18, 19, 20 and 22, be deemed to take effect from the date
on which the investigation is concluded for the country of origin and/or export.
è1 9. In the case of breach or withdrawal of
undertakings by any party to the undertaking, or in the case of withdrawal of
acceptance of the undertaking by the Commission, the acceptance of the
undertaking shall be withdrawn by the Commission, 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 apply, provided that the exporter concerned, or the 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. The Commission shall provide information to the Member States when it
decides to withdraw an undertaking. ç
Any interested party or Member State may submit information, 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.
ê 37/2014
Art. 1 and Annex .18(4)
10. A provisional duty may be imposed in
accordance with Article 12 on the basis of the best information available,
where there is reason to believe that an undertaking is being breached, or in
the case of breach or withdrawal of an undertaking, where the investigation
which led to the undertaking has not been concluded.
ê 597/2009
(adapted)
Article 14
Termination without measures
1. Where the complaint is withdrawn,
proceedings may be terminated unless such termination would not be in the Ö Union Õ interest.
ê 37/2014
Art. 1 and Annex .18(5)
2. Where protective measures are
unnecessary the investigation or proceedings shall be terminated. The
Commission shall terminate the investigation in accordance with the examination
procedure referred to in Article 25(3).
ê 597/2009
(adapted)
è1 37/2014 Art. 1 and Annex .18(6)
3. There shall be immediate termination of
the proceedings where it is determined that the amount of countervailable
subsidies is de minimis, in accordance with paragraph 5, or where the
volume of subsidised imports, actual or potential, or the injury, is
negligible.
4. For proceedings initiated pursuant to
Article 10(11), injury shall normally be regarded as negligible where the
market share of the imports is less than the amounts set out in Article 10(9).
With regard to investigations concerning imports from developing countries, the
volume of subsidised imports shall also be considered negligible if it
represents less than 4 % of the total imports of the like product in
the Ö Union Õ , unless
imports from developing countries whose individual shares of total imports
represent less than 4 % collectively account for more than 9 %
of the total imports of the like product in the Ö Union Õ .
5. The amount of the countervailable
subsidies shall be considered to be de minimis if such amount is less
than 1 % ad valorem, except where, as regards investigations
concerning imports from developing countries, the de minimis threshold
shall be 2 % ad valorem, provided that it is only the investigation
that shall be terminated where the amount of the countervailable subsidies is
below the relevant de minimis level for individual exporters, which
shall remain subject to the proceedings and may be reinvestigated in any
subsequent review carried out for the country concerned pursuant to Articles 18
and 19.
Article 15
Imposition of definitive duties
è1 1. Where the facts as finally established show the
existence of countervailable subsidies and injury caused thereby, and the Union
interest calls for intervention in accordance with Article 31, a definitive
countervailing duty shall be imposed by the Commission acting in accordance
with the examination procedure referred to in Article 25(3). Where provisional
duties are in force, the Commission shall initiate Ö that Õ procedure no
later than one month before the expiry of such duties. ç
ê 597/2009
(adapted)
è1 37/2014 Art. 1 and Annex .18(7)
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 to remove the injury to the Ö Union Õ industry.
2. A countervailing duty shall be imposed
in the appropriate amounts in each case, on a non-discriminatory basis, on
imports of a product from all sources found to benefit from countervailable
subsidies and causing injury, except for imports from those sources from which
undertakings under the terms of this Regulation have been accepted.
The Regulation imposing the duty shall
specify the duty for each supplier, or, if that is impracticable, the supplying
country concerned.
3. When the Commission has limited its Ö investigation Õ in accordance
with Article 27, any countervailing duty applied to imports from exporters or
producers which have made themselves known in accordance with Article 27 but
were not included in the Ö investigation Õ shall not
exceed the weighted average amount of countervailable subsidies established for
the parties in the sample.
For the purpose of this paragraph, the
Commission shall disregard any zero and de minimis amounts of
countervailable subsidies and amounts of countervailable subsidies established
in the circumstances referred to in Article 28.
Individual duties shall be applied to
imports from any exporter or producer for which an individual amount of
subsidisation has been calculated as provided for in Article 27.
Article 16
Retroactivity
1. Provisional measures and definitive
countervailing duties shall only be applied to products which enter free circulation
after the time when the measure taken pursuant to Article 12(1) or Article
15(1), as the case may be, enters into force, subject to the exceptions set out
in this Regulation.
è1 2. Where a provisional duty has been applied and
the facts as finally established show the existence of countervailable
subsidies and injury, the Commission shall decide, irrespective of whether a
definitive countervailing duty is to be imposed, what proportion of the
provisional duty is to be definitively collected. ç
For Ö that Õ purpose,
‘injury’ shall not include material delay of the establishment of a Ö Union Õ industry, nor
threat of material injury, except where it is found that this would, in the
absence of provisional measures, have developed into material injury. In all
other cases involving such threat or delay, any provisional amounts shall be
released and definitive duties can only be imposed from the date on which a
final determination of threat or material delay is made.
3. If the definitive countervailing duty is
higher than the provisional duty, the difference shall not be collected. If the
definitive duty is lower than the provisional duty, the duty shall be
recalculated. Where a final determination is negative, the provisional duty
shall not be confirmed.
4. A definitive countervailing duty may be
levied on products which were entered for consumption no more than 90 days
prior to the date of application of provisional measures but not prior to the
initiation of the investigation, provided that:
(a)          the imports have been registered
in accordance with Article 24(5);
(b)          the importers concerned have been
given an opportunity to comment by the Commission;
(c)          there are critical circumstances
where for the subsidised product in question injury which is difficult to
repair is caused by massive imports in a relatively short period of a product
benefiting from countervailable subsidies under the terms of this Regulation;
and
(d)          it is deemed necessary, in order
to preclude the recurrence of such injury, to assess countervailing duties
retroactively on those imports.
5. In cases of breach or withdrawal of
undertakings, definitive duties may be levied on goods entered for free
circulation no more than 90 days before the application of provisional
measures, provided that the imports have been registered in accordance with
Article 24(5) and that any such retroactive assessment shall not apply to
imports entered before the breach or withdrawal of the undertaking.
Article 17
Duration
A countervailing measure shall remain in
force only as long as, and to the extent that, it is necessary to counteract
the countervailable subsidies which are causing injury.
Article 18
Expiry reviews
1. A definitive countervailing measure
shall expire five years from its imposition or five years from the date of the
most recent review which has covered both subsidisation and injury, unless it
is determined in a review that the expiry would be likely to lead to a continuation
or recurrence of subsidisation and injury. Such an expiry review shall be
initiated on the initiative of the Commission, or upon a request made by or on
behalf of Ö Union Õ producers, and
the measure shall remain in force pending the outcome of such review.
2. An expiry review shall be initiated
where the request contains sufficient evidence that the expiry of the measures
would be likely to result in a continuation or recurrence of subsidisation and
injury. Such a likelihood may, for example, be indicated by evidence of
continued subsidisation and injury or evidence that the removal of injury is
partly or solely due to the existence of measures or evidence that the
circumstances of the exporters, or market conditions, are such that they would
indicate the likelihood of further injurious subsidisation.
3. In carrying out investigations under
this Article, the exporters, importers, the country of origin and/or export and
the Ö Union Õ producers shall
be provided with the opportunity to amplify, rebut or comment on the matters
set out in the review request, and conclusions shall be reached with due
account taken of all relevant and duly documented evidence presented in
relation to the question as to whether the expiry of measures would be likely,
or unlikely, to lead to the continuation or recurrence of subsidisation and
injury.
4. A notice of impending expiry shall be
published in the Official Journal of the European Union at an
appropriate time in the final year of the period of application of the measures
as defined in this Article. Thereafter, the Ö Union Õ producers
shall, no later than three months before the end of the five-year period, be
entitled to lodge a review request in accordance with paragraph 2. A notice
announcing the actual expiry of measures under this Article shall also be
published.
Article 19
Interim reviews
1. The need for the continued imposition of
measures may also be reviewed, where warranted, on the initiative of the
Commission or at the request of a Member State or, provided that a reasonable
period of time of at least one year has elapsed since the imposition of the
definitive measure, upon a request by any exporter, importer or by the Ö Union Õ producers or
the country of origin and/or export which contains sufficient evidence
substantiating the need for such an interim review.
2. An interim review shall be initiated
where the request contains sufficient evidence that the continued imposition of
the measure is no longer necessary to offset the countervailable subsidy and/or
that the injury would be unlikely to continue or recur if the measure were
removed or varied, or that the existing measure is not, or is no longer,
sufficient to counteract the countervailable subsidy which is causing injury.
3. Where the countervailing duties imposed
are less than the amount of countervailable subsidies found, an interim review
may be initiated if the Ö Union Õ producers or
any other interested party submit, normally within two years from the entry
into force of the measures, sufficient 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 Ö Union Õ . 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 conditions set out above, at the initiative of the Commission or at
the request of a Member State.
4. In carrying out investigations pursuant
to this Article, the Commission may, inter alia, consider whether the
circumstances with regard to subsidisation and injury have changed
significantly, or whether existing measures are achieving the intended results
in removing the injury previously determined under Article 8. In Ö those Õ respects,
account shall be taken in the final determination of all relevant and duly
documented evidence.
Article 20
Accelerated reviews
Any exporter whose exports are subject to a
definitive countervailing duty but which was not individually investigated
during the original investigation for reasons other than a refusal to cooperate
with the Commission, shall be entitled, upon request, to an accelerated review
in order that the Commission may promptly establish an individual
countervailing duty rate for that exporter.
ê 37/2014
Art. 1 and Annex .18(8)
Such a review shall be initiated after
Union producers have been given an opportunity to comment.
ê 597/2009
(adapted)
è1 37/2014 Art. 1 and Annex .18(9)
Article 21
Refunds
1. Notwithstanding Article 18, an importer
may request reimbursement of duties collected where it is shown that the amount
of countervailable subsidies, on the basis of which duties were paid, has been
either eliminated or reduced to a level which is below the level of the duty in
force.
2. In requesting a refund of countervailing
duties, the importer shall submit an application to the Commission. The
application shall be submitted via the Member State in the territory of which
the products were released for free circulation, within six months of the date
on which the amount of the definitive duties to be levied was duly determined
by the competent authorities or of the date on which a decision was made
definitively to collect the amounts secured by way of provisional duty. Member
States shall forward the request to the Commission forthwith.
3. An application for refund shall be
considered to be duly supported by evidence only where it contains precise
information on the amount of refund of countervailing duties claimed and all
customs documentation relating to the calculation and payment of such amount.
It shall also include evidence, for a representative period, of the amount of
countervailable subsidies for the exporter or producer to which the duty
applies. In cases where the importer is not associated with the exporter or
producer concerned and such information is not immediately available, or where
the exporter or producer is unwilling to release it to the importer, the
application shall contain a statement from the exporter or producer that the
amount of countervailable subsidies has been reduced or eliminated, as
specified in this Article, and that the relevant supporting evidence will be
provided to the Commission. Where such evidence is not forthcoming from the
exporter or producer within a reasonable period of time the application shall
be rejected.
è1 4. The Commission shall decide whether and to what
extent the application should be granted, or it may decide at any time to
initiate an interim review, whereupon the information and findings from such
review, carried out in accordance with the provisions applicable for such
reviews, shall be used to determine whether and to what extent a refund is
justified. ç
Refunds of duties shall normally take place
within 12 months and in no circumstances more than 18 months after the date on
which a request for a refund, duly supported by evidence, has been made by an
importer of the product subject to the countervailing duty.
The payment of any refund authorised should
normally be made by Member States within 90 days of the decision referred
to in the first subparagraph.
Article 22
General provisions on reviews and
refunds
1. The relevant provisions of 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 Articles 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 Articles 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
proceedings, the review pursuant to Article 19 shall be concluded at the same
time as foreseen above for the review pursuant to Article 18.
If the investigation is not completed within
the deadlines Ö specified
in the second, third and fourth subpargaraphs Õ, the measures
shall:
(a)          expire in investigations pursuant
to Article 18;
(b)          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 proceedings or where such reviews were
initiated at the same time; or
(c)          remain unchanged in
investigations pursuant to Articles 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.
ê 37/2014
Art. 1 and Annex .18(10)
2. Reviews pursuant to Articles 18, 19 and
20 shall be initiated by the Commission. The Commission shall decide whether or
not to initiate reviews pursuant to Article 18 in accordance with the advisory
procedure referred to in Article 25(2). The Commission shall also provide
information to the Member States once an operator or a Member State has submitted a request justifying the initiation of a review pursuant to Articles 19 and
20 and the Commission has completed its analysis thereof, or once the
Commission has itself determined that the need for the continued imposition of
measures should be reviewed.
3. Where warranted by reviews, measures
shall, in accordance with the examination procedure referred to in Article
25(3), be repealed or maintained pursuant to Article 18, or repealed,
maintained or amended pursuant to Articles 19 and 20.
ê 597/2009
(adapted)
4. Where measures are repealed for
individual exporters, but not for the country as a whole, such exporters shall
remain subject to the proceedings and may be reinvestigated in any subsequent
review carried out for that country pursuant to this Article.
5. Where a review of measures pursuant to
Article 19 is in progress at the end of the period of application of measures
as defined in Article 18, the measures shall also be investigated under the
provisions of Article 18.
6. In all review or refund investigations
carried out pursuant to Articles 18 to 21, the Commission shall, provided that
circumstances have not changed, apply the same methodology as in the
investigation which led to the duty, with due account being taken of Articles
5, 6, 7 and 27.
Article 23
Circumvention
1. Countervailing duties imposed pursuant
to this Regulation 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 to measures, or parts thereof,
when circumvention of the measures in force is taking place.
2. Countervailing duties not exceeding the
residual countervailing duty imposed in accordance with Article 15(2) may be
extended to imports from companies benefiting from individual duties in the
countries subject to measures when circumvention of the measures in force is
taking place.
3. Circumvention shall be defined as a
change in the pattern of trade between third countries and the Ö Union Õ or between
individual companies in the country subject to measures and the Ö Union Õ , 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 quantities of the like product and
that the imported like product and/or parts thereof still benefit from the
subsidy.
The practice, process or work referred to
in the first subparagraph includes, inter alia:
(a)          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;
(b)          the consignment of the product
subject to measures via third countries; 
(c)          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 Ö Union Õ through
producers benefiting from an individual duty rate lower than that applicable to
the products of the manufacturers.
ê 37/2014
Art. 1 and Annex .18(11) (adapted)
4. Investigations shall be initiated
pursuant to this Article on the initiative of the Commission or at the request
of a Member State or of any interested party on the basis of sufficient
evidence regarding the factors set out in paragraphs 1, 2 and 3. Initiations
shall be made by Commission Regulation which may also instruct customs
authorities to Ö subject Õ imports to
registration in accordance with Article 24(5) or to request guarantees. The
Commission shall provide information to the Member States once an interested
party or a Member State has submitted a request justifying the initiation of an
investigation and the Commission has completed its analysis thereof, or where
the Commission has itself determined that there is a need to initiate an
investigation.
Investigations shall be carried out by the
Commission. The Commission may be assisted by customs authorities and the
investigations shall be concluded within nine months.
Ö Where Õ the facts as
finally ascertained justify the extension of measures, this shall be done by
the Commission acting in accordance with the examination procedure referred to
in Article 25(3).
ê 597/2009
(adapted)
The extension shall take effect from the
date on which registration was imposed pursuant to Article 24(5) or on which
guarantees were requested. The relevant procedural provisions of this
Regulation with regard to Ö the Õ initiation and
the conduct of investigations shall apply pursuant to this Article.
5. Imports shall not be subject to
registration pursuant to Article 24(5) or measures where they are traded by
companies which benefit from exemptions.
6. Requests for exemptions duly supported
by evidence shall be submitted within the time limits established in the
Commission Regulation initiating the investigation.
Where the circumventing practice, process
or work takes place outside the Ö Union Õ , 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 paragraph 3.
Where the circumventing practice, process
or work takes place inside the Ö Union Õ , exemptions
may be granted to importers that can show that they are not related to
producers subject to the measures.
ê 37/2014
Art. 1 and Annex .18(11) (adapted)
Ö Those Õ exemptions Ö shall
be Õ granted by
decision of the Commission and shall remain valid for the period and under the
conditions set down therein. The Commission shall provide information to the
Member States once it has concluded its analysis.
ê 597/2009
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.
7. Provided that at least one year has
lapsed from the extension of the measures, and in case the number of parties
requesting or potentially requesting an exemption is significant, 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. Nothing in this Article shall preclude
the normal application of the provisions in force concerning customs duties.
Article 24
General provisions
1. Provisional or definitive countervailing
duties shall be imposed by Regulation, and collected by Member States in the
form, at the rate specified and according to the other criteria laid down in
the Regulation imposing such duties. Such duties shall also be collected
independently of the customs duties, taxes and other charges normally imposed
on imports.
No product shall be subject to both
anti-dumping and countervailing duties for the purpose of dealing with one and
the same situation arising from dumping or from export subsidisation.
2. Regulations imposing provisional or
definitive countervailing duties, and Regulations or Decisions accepting
undertakings or terminating investigations or proceedings, shall be published
in the Official Journal of the European Union.
Such Regulations or Decisions shall contain
in particular, and with due regard to the protection of confidential information,
the names of the exporters, if possible, or of the countries involved, a
description of the product and a summary of the facts and considerations
relevant to the subsidy and injury determinations. In each case, a copy of the
Regulation or Decision shall be sent to known interested parties. The
provisions of this paragraph shall apply mutatis mutandis to reviews.
3. Special provisions, in particular with
regard to the common definition of the concept of origin, as contained in
Council Regulation (EEC) No 2913/92[9],
may be adopted pursuant to this Regulation.
ê 37/2014
Art. 1 and Annex .18(12)
4. In the Union interest, measures imposed
pursuant to this Regulation may be suspended by a decision of the Commission in
accordance with the advisory procedure referred to in Article 25(2) for a
period of nine months. The suspension may be extended for a further period, not
exceeding one year, by the Commission acting in accordance with the advisory
procedure referred to in Article 25(2).
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 suspension, and provided that the Union industry
has been given an opportunity to comment and those comments have been taken
into account. Measures may at any time be reinstated in accordance with the
advisory procedure referred to in Article 25(2) if the reason for suspension is
no longer applicable.
ê 597/2009
(adapted)
è1 37/2014 Art. 1 and Annex .18(12)
è1 5. The Commission may, after having informed the
Member States in due time, direct the customs authorities to take the
appropriate steps to register imports, so that measures may subsequently be
applied against those imports from the date of such registration. ç
Imports may be made subject to registration
following a request from the Ö Union Õ industry which
contains sufficient evidence to justify such action.
Registration shall be introduced by
Regulation which shall specify the purpose of the action and, if appropriate,
the estimated amount of possible future liability. Imports shall not be made
subject to registration for a period longer than nine months.
6. Member States shall report to the
Commission every month on the import trade of products subject to investigation
and to measures, and on the amount of duties collected pursuant to this
Regulation.
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).
ê 37/2014
Art. 1 and Annex .18(13) (adapted)
Article 25
Committee
procedure
1. The Commission shall be assisted by the
Committee established by [Council Regulation (EC) No 1225/2009[10]]. That Committee shall
be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this
paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.
3. Where reference is made to this
paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
4. Where reference is made to this
paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with
Article 4 thereof, shall apply.
5. Pursuant to Article 3(5) of Regulation
(EU) No 182/2011, where the written procedure Ö is used
to Õ adopt
definitive measures pursuant to paragraph 3 of this Article, or Ö to
decide Õ on the
initiation or non-initiation of expiry reviews pursuant to Article 18 of this
Regulation, such procedure shall be terminated without result where, within the
time limit set down by the chair, the chair so decides or a majority of
committee members as defined in Article 5(1) of Regulation (EU)
No 182/2011 so request. Where the written procedure Ö is used Õ in other
instances where there has been a discussion of the draft measure in the
committee, that procedure shall be terminated without result where, within the
time limit set down by the chair, the chair so decides or a simple majority of
committee members so request. Where the written procedure Ö is
used Õ in other
instances where there has not been a discussion of the draft measure in the
committee, that procedure shall be terminated without result where, within the
time limit set down by the chair, the chair so decides or at least a quarter of
committee members so request.
6. The committee may consider any matter
relating to the application of this Regulation, raised by the Commission or at
the request of a Member State. Member States may request information and may
exchange views in the committee or directly with the Commission.
ê 597/2009
(adapted)
Article 26
Verification visits
1. The Commission shall, where it considers
it appropriate, carry out visits to examine the records of importers,
exporters, traders, agents, producers, trade associations and organisations, to
verify information provided on subsidisation and injury. In the absence of a
proper and timely reply a verification visit may not be carried out.
2. The Commission may carry out
investigations in third countries as required, provided that it obtains the
agreement of the firms concerned, that it notifies the country in question and
that the latter does not object to the investigation. As soon as the agreement
of the firms concerned has been obtained the Commission Ö shall Õ notify the
country of origin and/or export of the names and addresses of the firms to be
visited and the dates agreed.
3. The firms concerned shall be advised of
the nature of the information to be verified during verification visits and of
any further information which needs to be provided during such visits, though
this should not preclude requests made during the verification for further
details to be provided in the light of information obtained.
4. In investigations carried out pursuant
to paragraphs 1, 2 and 3, the Commission shall be assisted by officials of
those Member States which so request.
Article 27
Sampling
1. In cases where the number of
complainants, exporters or importers, types of product or transactions is
large, the investigation may be limited to:
(a)          a reasonable number of parties,
products or transactions by using samples which are statistically valid on the
basis of information available at the time of the selection; or
(b)          the largest representative volume
of the production, sales or exports which can reasonably be investigated within
the time available.
2. The Ö final Õ selection of parties,
types of products or transactions made under this Article shall rest with the
Commission, though preference shall be given to choosing a sample in
consultation with, and with the consent of, the parties concerned, provided
that such parties make themselves known and make sufficient information
available, within three weeks of initiation of the investigation, to enable a
representative sample to be chosen.
3. In cases where the Ö investigation Õ has been
limited in accordance with this Article, an individual amount of
countervailable subsidisation shall be calculated for any exporter or producer
not initially selected who submits the necessary information within the time
limits provided for in this Regulation, except where the number of exporters or
producers is so large that individual examinations would be unduly burdensome
and would prevent completion of the Ö investigation Õ in good time.
4. Where it is decided to sample and there
is a degree of non-cooperation by some or all of the parties selected which is
likely to materially affect the outcome of the investigation, a new sample may
be selected.
However, if a material degree of
non-cooperation persists or there is insufficient time to select a new sample,
the relevant provisions of Article 28 shall apply.
Article 28
Non-cooperation
1. In cases in which any interested party
refuses access to, or otherwise does not provide necessary information within
the time limits provided in this Regulation, or significantly impedes the
investigation, provisional or final findings, affirmative or negative, may be
made on the basis of the facts available.
Where it is found that any interested party
has supplied false or misleading information, the information shall be
disregarded and use may be made of the facts available.
Interested parties should be made aware of
the consequences of non-cooperation.
2. Failure to give a computerised response
shall not be deemed to constitute non-cooperation, provided that the interested
party shows that presenting the response as requested would result in an
unreasonable extra burden or unreasonable additional cost.
3. Where the information submitted by an
interested party is not ideal in all respects it should nevertheless not be
disregarded, provided that any deficiencies are not such as to cause undue
difficulty in arriving at a reasonably accurate finding and that the
information is appropriately submitted in good time and is verifiable, and that
the party has acted to the best of its ability.
4. If evidence or information is not
accepted, the supplying party shall be informed forthwith of the reasons
therefor and shall be granted an opportunity to provide further explanations
within the time limit specified. If the explanations are considered
unsatisfactory, the reasons for rejection of such evidence or information shall
be disclosed and given in published findings.
5. If determinations, including those
regarding the amount of countervailable subsidies, are based on the provisions
of paragraph 1, including the information supplied in the complaint, it shall,
where practicable and with due regard to the time limits of the investigation,
be checked by reference to information from other independent sources which may
be available, such as published price lists, official import statistics and
customs returns, or information obtained from other interested parties during
the investigation.
Such information may include relevant data
pertaining to the world market or other representative markets, where
appropriate.
6. If an interested party does not
cooperate, or cooperates only partially, so that relevant information is
thereby withheld, the result may be less favourable to the party than if it had
cooperated.
Article 29
Confidentiality
1. Any information which is by nature
confidential (for example, because its disclosure would be of significant
competitive advantage to a competitor or would have a significantly adverse
effect upon a person supplying the information or upon a person from whom he
has acquired the information), or which is provided on a confidential basis by
parties to an investigation shall, if good cause is shown, be treated as such
by the authorities.
2. Interested parties providing
confidential information shall be required to Ö provide Õ
non-confidential summaries thereof. Those summaries shall be in sufficient
detail to permit a reasonable understanding of the substance of the information
submitted in confidence. In exceptional circumstances, such parties may
indicate that such information is not susceptible of summary. In such
exceptional circumstances, a statement of the reasons why summarisation is not
possible must be provided.
3. If it is considered that a request for
confidentiality is not warranted and if the supplier of the information is
either unwilling to make the information available or to authorise its
disclosure in generalised or summary form, such information may be disregarded
unless it can be satisfactorily demonstrated from appropriate sources that the
information is correct. Requests for confidentiality shall not be arbitrarily
rejected.
4. This Article shall not preclude the
disclosure of general information by the Ö Union Õ authorities,
and in particular of the reasons on which decisions taken pursuant to this
Regulation are based, or disclosure of the evidence relied on by the Ö Union Õ authorities in
so far as is necessary to explain those reasons in court proceedings. Such
disclosure must take into account the legitimate interests of the parties
concerned that their business or governmental secrets should not be divulged.
ê 37/2014
Art. 1 and Annex .18(14)
5. The Commission and the Member States, including the officials of either, shall not reveal any information received
pursuant to this Regulation for which confidential treatment has been requested
by its supplier, without specific permission from that supplier. Exchanges of
information between the Commission and Member States, or any internal documents
prepared by the authorities of the Union or the Member States, shall not be
divulged except as specifically provided for in this Regulation.
ê 597/2009
(adapted)
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 proceedings concerning the same
like product.
Article 30
Disclosure
1. The complainants, importers and
exporters and their representative associations, and the country of origin
and/or export, may request disclosure of the details underlying the essential
facts and considerations on the basis of which provisional measures have been
imposed. Requests for such disclosure shall be made in writing immediately
following the imposition of provisional measures, and the disclosure shall be
made in writing as soon as possible thereafter.
2. The parties mentioned in paragraph 1 may
request final disclosure of the essential facts and considerations on the basis
of which it is intended to recommend the imposition of definitive measures, or
the termination of an investigation or proceedings without the imposition of
measures, particular attention being paid to the disclosure of any facts or
considerations which are different from those used for any provisional
measures.
3. Requests for final disclosure shall be
addressed to the Commission in writing and be received, in cases where a
provisional duty has been Ö imposed Õ , no later
than one month after publication of the imposition of that duty. Where a
provisional duty has not been imposed, parties shall be provided with an
opportunity to request final disclosure within time limits set by the
Commission.
ê 37/2014
Art. 1 and Annex .18(15)
4. Final disclosure shall be given in
writing. It shall be made, due regard being had to the protection of
confidential information, as soon as possible and, normally, no later than one
month prior to the initiation of the procedures set out in Article 14 or
Article 15. Where the Commission is not in a position to disclose certain facts
or considerations at that time, they shall be disclosed as soon as possible
thereafter.
Disclosure shall not prejudice any
subsequent decision which may be taken by the Commission, but where such a
decision is based on any different facts and considerations they shall be
disclosed as soon as possible.
5. Representations made after final
disclosure is given shall be taken into consideration only if received within a
period to be set by the Commission in each case, which shall be at least
10 days, due consideration being given to the urgency of the matter. A
shorter period may be set whenever an additional final disclosure has to be
made.
ê 597/2009
(adapted)
Article 31
 Ö Union Õ interest
1. A determination as to whether the Ö Union’s Õ interest calls
for intervention should be based on an appraisal of all the various interests
taken as a whole, including the interests of the domestic industry and users
and consumers. A determination pursuant to this Article shall be made only
where all parties have been given the opportunity to make their views known
pursuant to paragraph 2. In such an examination, the need to eliminate the
trade-distorting effects of injurious subsidisation and to restore effective
competition shall be given special consideration. Measures, as determined on
the basis of subsidisation and injury found, may not be applied where the
authorities, on the basis of all the information submitted, can clearly
conclude that it is not in the Ö Union’s Õ interest to
apply such measures.
2. In order to provide a sound basis on
which the authorities can take account of all views and information in the
decision as to whether or not the imposition of measures is in the Ö Union’s Õ interest, the
complainants, importers and their representative associations, representative
users and representative consumer organisations may, within the time limits
specified in the notice of initiation of the countervailing duty investigation,
make themselves known and provide information to the Commission. Such
information, or appropriate summaries thereof, shall be made available to the
other parties specified in this paragraph, and they shall be entitled to respond
to such information.
3. The parties which have acted in Ö accordance Õ with paragraph
2 may request a hearing. Such requests shall be granted when they are submitted
within the time limits set in paragraph 2, and when they set out the
reasons, in terms of the Ö Union Õ interest, why
the parties should be heard.
ê 37/2014
Art. 1 and Annex .18(16) (adapted)
4. The parties which have acted in Ö accordance Õ with paragraph
2 may provide comments on the application of any provisional duties. Such
comments shall be received within 25 days of the date of application of such
measures if they are to be taken into account and they, or appropriate
summaries thereof, shall be made available to other parties who shall be
entitled to respond to such comments.
5. The Commission shall examine the
information which is properly submitted and the extent to which it is
representative, and the results of such analysis, together with an opinion on
its merits, shall be transmitted to the committee as part of the draft measure
submitted pursuant to Articles 14 and 15. The views expressed in the committee
should be taken into account by the Commission under the conditions provided
for in Regulation (EU) No 182/2011.
ê 597/2009
(adapted)
è1 37/2014 Art. 1 and Annex .18(16)
6. The parties which have acted in
conformity with paragraph 2 may request that the facts and considerations on
which final decisions are likely to be taken be made available to them. è1 Such information shall be made available to the
extent possible and without prejudice to any subsequent decision taken by the
Commission. ç
7. Information shall be taken into account
only where it is supported by actual evidence which substantiates its validity.
Article 32
Relationships between
countervailing duty measures and multilateral remedies
If an imported product is made subject to
any countermeasures imposed following recourse to the dispute settlement
procedures of the Subsidies Agreement, and such measures are appropriate to
remove the injury caused by the countervailable subsidies, any countervailing
duty imposed with regard to that product shall immediately be suspended, or
repealed, as appropriate.
Article 33
Final provisions
This Regulation shall not preclude the
application of:
(a)          any special rules laid down in
agreements concluded between the Ö Union Õ and third
countries;
(b)          the Ö Union Õ Regulations in
the agricultural sector and Council Regulations (EC) No 1667/2006[11], (EC) No 614/2009[12] and (EC) No 1216/2009[13]. This Regulation shall
operate by way of complement to those Regulations and in derogation from any
provisions thereof which preclude the application of countervailing duties;
(c)          special measures, provided that
such action does not run counter to obligations under the GATT Ö 1994 Õ.
ê 37/2014
Art. 1 and Annex .18(17)
Article 34
Report
The Commission shall include information on
the implementation of this Regulation in its annual report on the application
and implementation of trade defence measures presented to the European
Parliament and to the Council pursuant to [Article 22a of Regulation (EC)
No 1225/2009].
ê 597/2009
(adapted)
Article 35
Repeal
Regulation (EC) No Ö 597/2009 Õ is repealed.
References to the repealed Regulation shall
be construed as references to this Regulation and Ö shall Õ be read in
accordance with the correlation table in Annex VI.
Article 36
Entry
into force
This
Regulation shall enter into force on the Ö twentieth Õ day following Ö that
of Õ its
publication in the Official Journal of the European Union.
This
Regulation shall be binding in its entirety and directly applicable in all
Member States.
Done at Brussels,
For the European Parliament                        For
the Council
The President                                                 The
President
[1]               COM(87) 868 PV.
[2]               See Annex 3 to Part A of the Conclusions.
[3]               Entered in the legislative programme for 2014.
[4]               See Annex V to this proposal.
[5]               OJ C […], […], p. […].
[6]               Council Regulation (EC)
No 597/2009 of 11 June 2009 on protection against subsidised imports from
countries not members of the European Community (OJ L 188, 18.7.2009, p. 93).
[7]               See Annex V.
[8]               Regulation (EU)
No 182/2011 of the European Parliament and of the Council of 16 February
2011 laying down the rules and general principles concerning mechanisms for
control by Member States of the Commission's exercise of implementing powers
(OJ L 55, 28.2.2011, p. 13).
[9]               Council Regulation (EEC) No
2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302,
19.10.1992, p. 1).
[10]             Council Regulation (EC)
No 1225/2009 of 30 November 2009 on protection against dumped imports from
countries not members of the European Community (OJ L 343, 22.12.2009, p. 51).
[11]             Council Regulation (EC)
No 1667/2006 of 7 November 2006 on glucose and lactose
(OJ L 312, 11.11.2006, p. 1).
[12]             Council Regulation (EC) No 614/2009 of 7 July 2009 on
the common system of trade for ovalbumin and lactalbumin (OJ L 181, 14.7.2009,
p. 8).
[13]             Council Regulation (EC) No 1216/2009 of 30 November
2009 laying down the trade arrangements applicable to certain goods resulting
from the processing of agricultural products (OJ L 328, 15.12.2009, p. 10).
ê 597/2009
ANNEX I
ILLUSTRATIVE LIST OF EXPORT
SUBSIDIES
(a)          The provision by governments of
direct subsidies to a firm or an industry contingent upon export performance.
(b)          Currency retention schemes or any
similar practices which involve a bonus on exports.
(c)          Internal transport and freight
charges on export shipments, provided or mandated by governments, on terms more
favourable than for domestic shipments.
(d)          The provision by governments or
their agencies either directly or indirectly through government-mandated
schemes, of imported or domestic products or services for use in the production
of exported goods, on terms or conditions more favourable than for provision of
like or directly competitive products or services for use in the production of
goods for domestic consumption, if (in the case of products) such terms or
conditions are more favourable than those commercially available[1] on world markets to
their exporters.
(e)          The full or partial exemption,
remission, or deferral specifically related to exports, of direct taxes[2] or social welfare
charges paid or payable by industrial or commercial enterprises[3].
(f)          The allowance of special
deductions directly related to exports or export performance, over and above
those granted in respect of production for domestic consumption, in the
calculation of the base on which direct taxes are charged.
(g)          The exemption or remission, in
respect of the production and distribution of exported products, of indirect
taxes[4]
in excess of those levied in respect of the production and distribution of like
products when sold for domestic consumption.
(h)          The exemption, remission or
deferral of prior-stage cumulative indirect taxes[5] on goods or services
used in the production of exported products in excess of the exemption,
remission or deferral of like prior-stage cumulative indirect taxes on goods or
services used in the production of like products when sold for domestic
consumption; provided, however, that prior-stage cumulative indirect taxes may
be exempted, remitted or deferred on exported products even when not exempted,
remitted or deferred on like products when sold for domestic consumption, if
the prior-stage cumulative indirect taxes are levied on inputs that are
consumed in the production of the exported product (making normal allowance for
waste)[6].
This item shall be interpreted in accordance with the guidelines on consumption
of inputs in the production process contained in Annex II.
(i)           The remission or drawback of
import charges[7]
in excess of those levied on imported inputs that are consumed in the
production of the exported product (making normal allowance for waste);
provided, however, that in particular cases a firm may use a quantity of home
market inputs equal to, and having the same quality and characteristics as, the
imported inputs as a substitute for them in order to benefit from this
provision if the import and the corresponding export operations both occur
within a reasonable time period, not to exceed two years. This item shall be interpreted
in accordance with the guidelines on consumption of inputs in the production
process contained in Annex II and the guidelines in the determination of
substitution drawback systems as export subsidies contained in Annex III.
(j)           The provision by governments (or
special institutions controlled by governments) of export credit guarantee or
insurance programmes, of insurance or guarantee programmes against increases in
the cost of exported products or of exchange risk programmes, at premium rates
which are inadequate to cover the long-term operating costs and losses of the
programmes.
(k)          The grant by governments (or
special institutions controlled by and/or acting under the authority of
governments) of export credits at rates below those which they actually have to
pay for the funds so employed (or would have to pay if they borrowed on
international capital markets in order to obtain funds of the same maturity and
other credit terms and denominated in the same currency as the export credit),
or the payment by them of all or part of the costs incurred by exporters or
financial institutions in obtaining credits, in so far as they are used to
secure a material advantage in the field of export credit terms.
Provided, however, that if a Member of the WTO
is a party to an international undertaking on official export credits to which
at least 12 original such Members are parties as of 1 January 1979 (or a
successor undertaking which has been adopted by those original Members), or if
in practice a Member of the WTO applies the interest rates provisions of the
relevant undertaking, an export credit practice which is in conformity with
those provisions shall not be considered an export subsidy.
(l)           Any other charge on the public
account constituting an export subsidy in the sense of Article XVI of the GATT
1994.
_____________
ANNEX II
GUIDELINES ON CONSUMPTION OF
INPUTS IN THE PRODUCTION PROCESS[8]
1.           Indirect tax rebate schemes can
allow for exemption, remission or deferral of prior‑stage cumulative
indirect taxes levied on inputs that are consumed in the production of the
exported product (making normal allowance for waste). Similarly, drawback
schemes can allow for the remission or drawback of import charges levied on
inputs that are consumed in the production of the exported product (making
normal allowance for waste).
2.           The illustrative list of export
subsidies in Annex I makes reference to the term ‘inputs that are consumed in
the production of the exported product’ in points (h) and (i). Pursuant to
point (h), indirect tax rebate schemes can constitute an export subsidy to the
extent that they result in exemption, remission or deferral of prior-stage
cumulative indirect taxes in excess of the amount of such taxes actually levied
on inputs that are consumed in the production of the exported product. Pursuant
to point (i), drawback schemes can constitute an export subsidy to the
extent that they result in a remission or drawback of import charges in excess
of those actually levied on inputs that are consumed in the production of the
exported product. Both points stipulate that normal allowance for waste must be
made in findings regarding consumption of inputs in the production of the
exported product. Point (i) also provides for substitution, where appropriate.
3.           In examining whether inputs are
consumed in the production of the exported product, as part of a countervailing
duty investigation pursuant to this Regulation, the Commission must normally
proceed on the following basis.
4.           Where it is alleged that an
indirect tax rebate scheme, or a drawback scheme, conveys a subsidy by reason
of over-rebate or excess drawback of indirect taxes or import charges on inputs
consumed in the production of the exported product, the Commission must
normally first determine whether the government of the exporting country has in
place and applies a system or procedure to confirm which inputs are consumed in
the production of the exported product and in what amounts. Where such a system
or procedure is determined to be applied, the Commission must normally then
examine the system or procedure to see whether it is reasonable, effective for
the purpose intended, and based on generally accepted commercial practices in
the country of export. The Commission may deem it necessary to carry out, in
accordance with Article 26(2), certain practical tests in order to verify
information or to satisfy itself that the system or procedure is being
effectively applied.
5.           Where there is no such system or
procedure, where it is not reasonable, or where it is instituted and considered
reasonable but is found not to be applied or not to be applied effectively, a
further examination by the exporting country based on the actual inputs
involved will normally need to be carried out in the context of determining
whether an excess payment occurred. If the Commission deems it necessary, a
further examination may be carried out in accordance with point 4.
6.           The Commission must normally treat inputs as physically
incorporated if such inputs are used in the production process and are
physically present in the product exported. An input need not be present in the
final product in the same form in which it entered the production process.
7.           In determining the amount of a
particular input that is consumed in the production of the exported product, a
‘normal allowance for waste’ must normally be taken into account, and such
waste must normally be treated as consumed in the production of the exported
product. The term ‘waste’ refers to that portion of a given input which does
not serve an independent function in the production process, is not consumed in
the production of the exported product (for reasons such as inefficiencies) and
is not recovered, used or sold by the same manufacturer.
8.           The Commission’s determination of
whether the claimed allowance for waste is ‘normal’ must normally take into
account the production process, the average experience of the industry in the
country of export, and other technical factors, as appropriate. The Commission
must bear in mind that an important question is whether the authorities in the
exporting country have reasonably calculated the amount of waste, when such an
amount is intended to be included in the tax or duty rebate or remission.
_____________
ANNEX III
GUIDELINES IN THE DETERMINATION
OF SUBSTITUTION DRAWBACK SYSTEMS AS EXPORT SUBSIDIES
I
Drawback systems can allow for the refund
or drawback of import charges on inputs which are consumed in the production
process of another product and where the export of this latter product contains
domestic inputs having the same quality and characteristics as those submitted
for the imported inputs. Pursuant to point (i) of Annex I, substitution
drawback systems can constitute an export subsidy to the extent that they
result in an excess drawback of the import charges levied initially on the
imported inputs for which drawback is being claimed.
II
In examining any substitution drawback
system as part of a countervailing duty investigation pursuant to this
Regulation, the Commission must normally proceed on the following basis:
1.           point (i) of Annex I stipulates
that home market inputs may be substituted for imported inputs in the
production of a product for export provided such inputs are equal in quantity
to, and have the same quality and characteristics as, the imported inputs being
substituted. The existence of a verification system or procedure is important
because it enables the government of the exporting country to ensure and
demonstrate that the quantity of inputs for which drawback is claimed does not
exceed the quantity of similar products exported, in whatever form, and that
there is no drawback of import charges in excess of those originally levied on
the imported inputs in question;
2.           where it is alleged that a
substitution drawback system conveys a subsidy, the Commission must normally
first proceed to determine whether the government of the exporting country has
in place and applies a verification system or procedure. Where such a system or
procedure is determined to be applied, the Commission shall normally then
examine the verification procedures to see whether they are reasonable,
effective for the purpose intended, and based on generally accepted commercial
practices in the country of export. To the extent that the procedures are
determined to meet this test and are effectively applied, no subsidy will be
presumed to exist. It may be deemed necessary by the Commission to carry out,
in accordance with Article 26(2), certain practical tests in order to verify
information or to satisfy itself that the verification procedures are being
effectively applied;
3.           where there are no verification
procedures, where they are not reasonable, or where such procedures are
instituted and considered reasonable but are found not to be actually applied
or not to be applied effectively, there may be a subsidy. In such cases,
further examination by the exporting country based on the actual transactions
involved would need to be carried out to determine whether an excess payment
occurred. If the Commission deems it necessary, a further examination may be
carried out in accordance with point 2;
4.           the existence of a substitution
drawback provision under which exporters are allowed to select particular
import shipments on which drawback is claimed should not of itself be
considered to convey a subsidy;
5.           an excess drawback of import
charges within the meaning of point (i) of Annex I would be deemed to exist
where governments paid interest on any monies refunded under their drawback
schemes, to the extent of the interest actually paid or payable.
_____________
ANNEX IV
(This Annex reproduces Annex 2 to the
Agreement on Agriculture. Any terms or expressions which are not explained
herein or which are not self-explanatory are to be interpreted in the context
of that Agreement.)
DOMESTIC SUPPORT: THE BASIS OF
EXEMPTION FROM THE REDUCTION COMMITMENTS
1.           Domestic
support measures for which exemption from the reduction commitments is claimed
shall meet the fundamental requirement that they have no, or at most minimal,
trade-distorting effects or effects on production. Accordingly, all measures
for which exemption is claimed shall conform to the following basic criteria:
(a)     the support in question shall be
provided through a publicly-funded government programme (including government
revenue foregone) not involving transfers from consumers; and
(b)     the support in question shall not have
the effect of providing price support to producers;
plus policy-specific criteria and conditions as
set out below.
Government service programmes
2.           General services
Policies in this category involve
expenditures (or revenue foregone) in relation to programmes which provide
services or benefits to agriculture or the rural community. They shall not
involve direct payments to producers or processors. Such programmes, which
include but are not restricted to the following list, shall meet the general
criteria in point 1 and policy-specific conditions where set out below:
(a)          research, including general
research, research in connection with environmental programmes, and research
programmes relating to particular products;
(b)          pest and disease control,
including general and product-specific pest and disease control measures, such
as early-warning systems, quarantine and eradication;
(c)          training services, including both
general and specific training facilities;
(d)          extension and advisory services,
including the provision of means to facilitate the transfer of information and
the results of research to producers and consumers;
(e)          inspection services, including
general inspection services and the inspection of particular products for
health, safety, grading or standardisation purposes;
(f)          marketing and promotion services,
including market information, advice and promotion relating to particular products
but excluding expenditure for unspecified purposes that could be used by
sellers to reduce their selling price or confer a direct economic benefit to
purchasers; and
(g)          infrastructural services,
including: electricity reticulation, roads and other means of transport, market
and port facilities, water supply facilities, dams and drainage schemes, and
infrastructural works associated with environmental programmes. In all cases
the expenditure shall be directed to the provision or construction of capital
works only, and shall exclude the subsidised provision of on-farm facilities
other than for the reticulation of generally available public utilities. It
shall not include subsidies to inputs or operating costs, or preferential user
charges.
3.           Public stockholding for
food security purposes[9]
Expenditures (or revenue foregone) in
relation to the accumulation and holding of stocks of products which form an
integral part of a food security programme identified in national legislation.
This may include government aid to private storage of products as part of such
a programme.
The volume and accumulation of such stocks
shall correspond to predetermined targets related solely to food security. The
process of stock accumulation and disposal shall be financially transparent.
Food purchases by the government shall be made at current market prices and
sales from food security stocks shall be made at no less than the current
domestic market price for the product and quality in question.
4.           Domestic food aid[10]
Expenditure (or revenue foregone) in
relation to the provision of domestic food aid to sections of the population in
need.
Eligibility to receive the food aid shall
be subject to clearly-defined criteria related to nutritional objectives. Such
aid shall be in the form of direct provision of food to those concerned or the
provision of means to allow eligible recipients to buy food either at market or
at subsidised prices. Food purchases by the government shall be made at current
market prices and the financing and administration of the aid shall be
transparent.
5.           Direct payments to
producers
Support provided through direct payments
(or revenue foregone, including payments in kind) to producers for which
exemption from reduction commitments as claimed shall meet the basic criteria
set out in point 1, plus specific criteria applying to individual types of
direct payment as set out in points 6 to 13. Where exemption from reduction is
claimed for any existing or new type of direct payment other than those
specified in points 6 to 13, it shall conform to criteria set out in points
6(b) to (e), in addition to the general criteria set out in point 1.
6.           Decoupled income support
(a)     Eligibility for such payments shall be
determined by clearly-defined criteria such as income, status as a producer or
landowner, factor use or production level in a defined and fixed base period.
(b)     The amount of such payments in any
given year shall not be related to, or based on, the type or volume of
production (including livestock units) undertaken by the producer in any year
after the base period.
(c)     The amount of such payments in any
given year shall not be related to, or based on, the prices, domestic or
international, applying to any production undertaken in any year after the base
period.
(d)     The amount of such payments in any
given year shall not be related to, or based on, the factors of production
employed in any year after the base period.
(e)     No production shall be required in
order to receive such payments.
7.           Government financial participation
in income insurance and income safety-net programmes
(a)     Eligibility for such payments shall be
determined by an income loss, taking into account only income derived from
agriculture, which exceeds 30 % of average gross income or the equivalent
in net income terms (excluding any payments from the same or similar schemes)
in the preceding three-year period or a three-year average based on the
preceding five-year period, excluding the highest and the lowest entry. Any
producer meeting this condition shall be eligible to receive the payments.
(b)     The amount of such payments shall
compensate for less than 70 % of the producer’s income loss in the year
the producer becomes eligible to receive this assistance.
(c)     The amount of any such payments shall
relate solely to income; it shall not relate to the type or volume of
production (including livestock units) undertaken by the producer; or to the
prices, domestic or international, applying to such production; or to the
factors of production employed.
(d)     Where a producer receives in the same
year payments pursuant to this point and pursuant to point 8 (relief from
natural disasters), the total of such payments shall be less than 100 % of
the producer’s total loss.
8.           Payments (made either
directly or by way of a government financial participation in crop insurance
schemes) for relief from natural disasters
(a)     Eligibility for such payments shall
arise only following a formal recognition by government authorities that a
natural or like disaster (including disease outbreaks, pest infestations,
nuclear accidents, and war on the territory of the Member concerned) has
occurred or is occurring; and shall be determined by a production loss which
exceeds 30 % of the average of production in the preceding three-year
period or a three-year average based on the preceding five-year period,
excluding the highest and the lowest entry.
(b)     Payments made following a disaster
shall be applied only in respect of losses of income, livestock (including
payments in connection with the veterinary treatment of animals), land or other
production factors due to the natural disaster in question.
(c)     Payments shall compensate for not more
than the total cost of replacing such losses and shall not require or specify
the type or quantity of future production.
(d)     Payments made during a disaster shall
not exceed the level required to prevent or alleviate further loss as defined
in criterion set out in point (b).
(e)     Where a producer receives in the same
year payments pursuant to this point and pursuant to point 7 (income insurance
and income safety-net programmes), the total of such payments shall be less
than 100 % of the producer’s total loss.
9.           Structural adjustment
assistance provided through producer retirement programmes
(a)     Eligibility for such payments shall be
determined by reference to clearly defined criteria in programmes designed to
facilitate the retirement of persons engaged in marketable agricultural production,
or their movement to non‑agricultural activities.
(b)     Payments shall be conditional upon the
total and permanent retirement of the recipients from marketable agricultural
production.
10.         Structural adjustment
assistance provided through resource retirement programmes
(a)     Eligibility for such payments shall be
determined by reference to clearly defined criteria in programmes designed to
remove land or other resources, including livestock, from marketable
agricultural production.
(b)     Payments shall be conditional upon the
retirement of land from marketable agricultural production for a minimum of
three years, and in the case of livestock on its slaughter or definitive
permanent disposal.
(c)     Payments shall not require or specify
any alternative use for such land or other resources which involves the
production of marketable agricultural products.
(d)     Payments shall not be related to
either type or quantity of production or to the prices, domestic or
international, applying to production undertaken using the land or other
resources remaining in production.
11.         Structural adjustment
assistance provided through investment aids
(a)     Eligibility for such payments shall be
determined by reference to clearly‑defined criteria in government
programmes designed to assist the financial or physical restructuring of a
producer’s operations in response to objectively demonstrated structural
disadvantages. Eligibility for such programmes may also be based on a clearly
defined government programme for the reprivatisation of agricultural land.
(b)     The amount of such payments in any
given year shall not be related to, or based on, the type or volume of
production (including livestock units) undertaken by the producer in any year
after the base period other than as provided for under criterion (e).
(c)     The amount of such payments in any
given year shall not be related to, or based on, the prices, domestic or
international, applying to any production undertaken in any year after the base
period.
(d)     The payments shall be given only for
the period of time necessary for the realisation of the investment in respect
of which they are provided.
(e)     The payments shall not mandate or in
any way designate the agricultural products to be produced by the recipients
except to require them not to produce a particular product.
(f)     The payments shall be limited to the
amount required to compensate for the structural disadvantage.
12.         Payments under
environmental programmes
(a)     Eligibility for such payments shall be
determined as part of a clearly-defined government environmental or
conservation programme and be dependent on the fulfilment of specific
conditions under the government programme, including conditions related to
production methods or inputs.
(b)     The amount of payment shall be limited
to the extra costs or loss of income involved in complying with the government
programme.
13.         Payments under regional
assistance programmes
(a)     Eligibility for such payments shall be
limited to producers in disadvantaged regions. Each such region must be a
clearly designated contiguous geographical area with a definable economic and
administrative identity, considered as disadvantaged on the basis of neutral
and objective criteria clearly spelt out in a law or regulation and indicating
that the region’s difficulties arise out of more than temporary circumstances.
(b)     The amount of such payments in any
given year shall not be related to, or based on, the type or volume of
production (including livestock units) undertaken by the producer in any year
after the base period other than to reduce that production.
(c)     The amount of such payments in any
given year shall not be related to, or based on, the prices, domestic or
international, applying to any production undertaken in any year after the base
period.
(d)     Payments shall be available only to
producers in eligible regions, but generally available to all producers within
such regions.
(e)     Where related to production factors,
payments shall be made at a degressive rate above a threshold level of the
factor concerned.
(f)     The payments shall be limited to the
extra costs or loss of income involved in undertaking agricultural production
in the prescribed area.
_____________
é
ANNEX V
Repealed Regulation with the
amendment thereto
 Council Regulation (EC) No 597/2009 (OJ L 188, 18.7.2009, p. 93) ||   || 
 || Regulation (EU) No 37/2014 of the European Parliament and of the Council (OJ L 18, 21.1.2014, p. 1) || Only point 18 of the Annex 
_____________
ANNEX VI
Correlation Table
 Regulation (EC) No 597/2009 || This Regulation 
 Articles 1 to 11 || Articles 1 to 11 
 Article 12(1) to (4) || Article 12(1) to (4) 
 Article 12(6) || Article 12(5) 
 Articles 13 and 14 || Articles 13 and 14 
 Article 15(1) || Article 15(1) 
 Article 15(2), first sentence || Article 15(2), first subparagraph 
 Article 15(2), second sentence || Article 15(2), second subparagraph 
 Article 15(3) || Article 15(3) 
 Articles 16 to 27 || Articles 16 to 27 
 Article 28(1) to (4) || Article 28(1) to (4) 
 Article 28(5), first sentence || Article 28(5), first subparagraph 
 Article 28(5), second sentence || Article 28(5), second subparagraph 
 Article 28(6) || Article 28(6) 
 Articles 29 to 33 || Articles 29 to 33 
 Article 33a || Article 34 
 Article 34 || Article 35 
 Article 35 || Article 36 
 Annexes I to IV || Annexes I to IV 
 Annex V || - 
 Annex VI || - 
 - || Annex V 
 - || Annex VI 
_____________
[1]               ‘Commercially available’
means that the choice between domestic and imported products is unrestricted
and depends only on commercial considerations.
[2]               For the purposes of this Regulation:                
–    ‘direct taxes’ means taxes on wages, profits, interests, rents, royalties,
and all other forms of income,      and taxes on the ownership of real
property,                
–    ‘import charges’ means tariffs, duties, and other fiscal charges not
elsewhere enumerated in this               footnote that are levied on imports,                
–    ‘indirect taxes’ means sales, excise, turnover, value added, franchise,
stamp, transfer, inventory and       equipment taxes, border taxes and all
taxes other than direct taxes and import charges,    
–    ‘prior-stage’ indirect taxes are those levied on goods or services used
directly or indirectly in       making the product,            
–    ‘cumulative’ indirect taxes are multi-staged taxes levied where there is
no mechanism for          subsequent crediting of the tax if the goods or
services subject to tax at one stage of production are       used in a
succeeding state of production,       
–    ‘remission’ of taxes includes the refund or rebate of taxes,  
–    ‘remission or drawback’ includes the full or partial exemption or deferral
of import charges.
[3]               Deferral may not amount to an
export subsidy where, for example, appropriate interest charges are collected.
[4]               See footnote 2.
[5]               See footnote 2.
[6]               Point (h) does not apply to
value added tax systems and border-tax adjustment in lieu thereof; the problem
of the excessive remission of value added taxes is exclusively covered by point
(g).
[7]               See footnote 2.
[8]               Inputs consumed in the
production process are inputs physically incorporated, energy, fuels and oil
used in the production process and catalysts which are consumed in the course
of their use to obtain the exported product.
[9]               For the purpose of point 3 of
this Annex, governmental stockholding programmes for food security purposes in
developing countries whose operation is transparent and conducted in accordance
with officially published objective criteria or guidelines shall be considered
to be in conformity with the provisions of this point, including programmes
under which stocks of foodstuffs for food security purposes are acquired and
released at administered prices, provided that the difference between the
acquisition price and the external reference price is accounted for in the AMS.
[10]             For the purposes of points 3
and 4 of this Annex, the provision of foodstuffs at subsidised prices with the
objective of meeting food requirements of urban and rural poor in developing
countries on a regular basis at reasonable prices shall be considered to be in
conformity with the provisions of this point.