CELEX: 51979PC0564
Language: en
Date: 1979-10-16
Title: PROPOSED COUNCIL REGULATION AMENDING REGULATION (EEC) No 459/68 ON PROTECTION AGAINST DUMPING OR THE GRANTING OF BOUNTIES OR SUBSIDIES BY COUNTRIES WHICH ARE NOT MEMBERS OF THE EUROPEAN ECONOMIC COMMUNITY (presented by the Commission to the Council)

ARCHIVES HISTORIQUES
DE LA COMMISSION
COLLECTION RELIEE DES
DOCUMENTS "COM"
COM (79) 564
Vol. 1979/0196
 ---pagebreak--- Disclaimer
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concernant l'ouverture au public des archives historiques de la Communauté économique
européenne et de la Communauté européenne de l'énergie atomique (JO L 43 du 15.2.1983,
p. 1), tel que modifié par le règlement (CE, Euratom) n° 1700/2003 du 22 septembre 2003
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In accordance with Council Regulation (EEC, Euratom) No 354/83 of 1 February 1983
concerning the opening to the public of the historical archives of the European Economic
Community and the European Atomic Energy Community (OJ L 43, 15.2.1983, p. 1), as
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In Übereinstimmung mit der Verordnung (EWG, Euratom) Nr. 354/83 des Rates vom 1.
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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                          COM(79)544 final
                                          ■ rucscis , 16th October 1979
                       PROPOSED COUNCIL REGULATION
          AMENDING REGULATION ( EEC ) No 459/ 68 ON PROTECTION
             AGAINST DUMPING OR THE GRANTING OF BOUNTIES OR
           SUBSIDIES BY COUNTRIES WHICH ARE NOT MEMBERS OF
                     THE EUROPEAN ECONOMIC COMMUNITY
             ( presented by the Commission to the Council )
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  ««(79 ) M4 final
 ---pagebreak---                                       PROPOSED
                               .   COUNCIL REGULATION         -
 ar.e- r-.ding Regulation ( EEC ) N° 459/ 68 oh protection' agsinst dumping or tlie -
granting of bounties or subsidies by countries which are not members of
 the European Economic Community                                  ■
THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
Having regard to the Treaty establishing the European Economic Community ,
and in particular Articles 113 and 213 thereof ,                                          ■
Having regard to the proposal from the Commi ssion ,
L'JfK-reds the European Economic Community has adopted common rules on .
protection against dumping or the granting of bounties or subsidies by
countries which are not members of the Community which are contained in
                                                   ( 1 )
Council Regulation ( EEC ) N° 459/ 68                      , as last amended by Regulation ( EEC )
                    ( 2)
         i oS1 / 79      ;   .   ,
.v.'.iffcas these common rules              were adopted in conformity with, the existing
 ■ ',-irnaticnal obligations , in particular with those resulting from
           .: i.e VI of - the GATT and thefi rst Agreement on Implementation of'
     - f.oie VI of the GATT ( 1967 Anti-Dumping Code );                 -
. r.ereas the Multi lateral Tra'de Negotiations concluded in 1979 have resulted
         i new Agreement on Implementation of Article VI GATT ( 1979 Anti-Dumping
 : o-c ) and in an             Agreement on Interpretation' and Application of Articles VI
aV I and XXIII of the GATT relating to subsidies and countervailing .
  T. ^ ciSuTôS /.                                         .                 1
                                                \
                                         y       '       .      >   . '       -  - - -
ivhjreas it is therefore appropriate t<5 , align the Community' § regulations
on the 1979' Agreements , in particular on their 1 provi sior.s with regard to
 subsidies and possible counter measures , to the determination of injury ,
especially the criteria to be applied and the new rules on causality and
 regional protection , to undertakings arid their monitoring , to the duration
or - provisional duties and to the possible retroactive application of
                                                                          »
 anti-dumping ana countervailing duties ;
           OJ N° L       93 , 17.04.1968 , p . 1
  ( 2 ) OJ i\'° L 196 , 02.08.1979 , p . 1
 ---pagebreak---                                           2 -
       Whereas it is desirable that the rules for determining normal value should
       be presented more clearly and in greater detai I ; ' whereas it should be specifically
       provided that sales on the domestic market of the country of origin or export which
re relatively small in relation to the quantities sold for export do not necessarily
       form a proper basis for determining the damping margin ; whereas the costs to be
       used where recourse is made to a constructed normal value must be those arising
       in the ordinary course of trade ; whereas the established international practice of
      permitting transactions between related parties to be disregarded as not being
    ; in the ordinary course of trade should be expressly reflected in the Community 's
      regulations ;           '  .
      Whereas imported products are sometimes first resold to an independent buyer in
      the - Community at a loss ; whereas it seems reasonable in such cases to allow the
      reconstruction of the export price from the price at which such resale takes place ,
      provided that certain strictly defined criteria are met ;
      Whereas the , export price and the normal value should normally be compared at the
      same level of trade ; whereas rules should consequently be provided for adjusting       -
      these where they are at different levels of trade ; .
      Whereos it seems advisable to lay down in some detail the manner in which the
      amouftt of any subsidy is to be determined ;
   • Wr.ereas it seems appropriate to set out certain factors which may be relevant
      for the determination of a threat of injury ;
 ,    Whereas 'it seems appropriate to make it clear that in case of withdrawal of a
      complaint proceedings m^y but need not necessarily be terminated ;
     -Whereas the experience acquired in the application of the Community 's regulations
      demonstrates that it is appropriate to simplify procedures especially those
      relating to the introduction of complaints and their subsequent examination ,
      to the' initiation of proceedings , the conduct of investigations and the disclosure
      of information ; ;
 ---pagebreak--- Whereas it is appropriate to provide for open and fair procedures for the
review of measures taken ;
Whereas it is opportune to take advantage of the above amendments to proceed
to . a general streamlining and linguistic simplification of the regulations ,
HAS ADOPTED THIS REGULATION :
 ---pagebreak---                             - 4 -
                                       "          ' '
   ~                       Article 1
1. The title of Regulation ( EEC ) No , 459 / 68 is changed to the following :
   " Regulation ( EEC ) No 459 / 68 of the Council of 5 April 1968 on .
     protection against clumped or subsidized imports from countries not
     members of the European Economic Community ."             -
2. Article 1(1 ) of that Regulation is replaced by the following :
   " Article 1 - Applicability           '            T s_
     This Regulation lays down provisions for protection against dumped
     or subsidized imports from countries not members of the European
     Economic Community . "
 ---pagebreak---                                      - 5 -
                                    Article 2
1.   Article 2 of Regulation ( EEC ) No 459 / 68 shall bear the title       Dumping .
     Article 2(1 ) of that Regulation shall be replaced by the following :
     " An anti-dumping duty may be applied to any dumped product whose
       introduction into Commurtity commerce causes injury ."
            »
2.   Article 3(1 ) of that Regulation becomes Article 2(2 ).
              /     ■                    -                    .
3.   Article 3(2 ) of that Regulation becomes Article 2(3 ), subject to the
   ~ following modifications :                                          ' «
     a)    Subparagraph ( a ) ( bb ) is replaced by the following :
                                                                              I
                                                                                      «
        "( bb ) when there are no      sales of the like product in the ordinary
                course of trade on' the domestic market of the country of origin
                or export ,,               or when such sales do not permit a proper
                comparison because they are too small in relation to the
                quantities sold for export , or because of other particular
                market situations : /
                i ) the comparable price of the like product when exported to
                      any third country , which may be the highest such export price
                      but should be a representative price , or
                ii)the constructed value , i.e. , the costs in the ordinary
                      course of trade of materials and manufacture - including
                      overheads - in the country of origin , plus a reasonable
                      profit margin ; as a general rule , and provided that a profit
                      is normally realized on sales of products of the same general
                      category on the domestic market of the country of origin , the
                      addition for profit shall not exceed such normal profit .    In
                      other cases , the addition shall be determined on any reasonable
                      basis , using available information ."                           -
 ---pagebreak---                                     - 6 -
     b ) in subparagraph ( b ), fifth line , the words " cost of production " .
         are replaced by the words " costs of production , both fixed and
         variable / 1 ;                  -              -
     c ) The following new text becomes subparagraph ( e ):
         " e ) For the purpose of determining normal value , transactions between
                related parties may be considered as not being in the ordinary
                course of trade unless the Community authorities are satisfied
                that the prices and costs involved are comparable to those
                involved in transactions between unrelated parties ."
4.   a ) Article 3(3 ) of that Regulation becomes Article 2(4 ) .( a ) and ( b )
     b ) The following new text becomes Article 2(4Hc ):
         " c ) The export price may also be constructed as in the previous
                paragraph whenever there are reasonable grounds for believing or
                suspecting that the price at which an imported product is first
                resold to an independent buyer is' less than its export price plus
                all additional costs - both fixed and variable, –, duties and
•  *         / taxes incurred between export and resale , provided that resales
              • at such prices :
                ( aa ) - have been made over an extended period of time and in
                         substantial quantities; and
                ( bb ) are not at prices which permit recovery of all costs within
                         a reasonable period of time in the normal course of trade ."
5.   Article 3(4 ) of that Regulation is replaced by the following , which
     becomes Article 2(5 ):          :          "         •*
     "5 . a )( For "the purposes of a fair comparison, the export price and the
                normal value shall be on a comparable basis as regards physical
                characteristics of the product , quantities , and conditions and      •
 ---pagebreak---                      - 7 -
    terms of sale .      They shall normally be compared at the same level
    of trade , preferably at the ex-factory level , and as nearly as
    possible at the same time .
b ) If the export price - and the normal value are not on a comparable
    basis in respect of the factors mentioned in the preceding
    subparagraph , due allowance shall be made in each case , on its
    merits , for differences affecting , price comparability .     Where
    an interested party claims such an allowance , it must prove that
    its claim is justified .       The following guidelines shall apply
    in determining these allowances :
    ( aa ) differences in physical characteristics of the product :
            allowance for such differences shall normally be based on
            the effect on the market value in the country of origin or
            export ; however , where domestic pricing data in that
            country are not available or do not permit a fair comparison ,
            the calculation shall be based on those production costs
            accounting for such differences ; ,
     ( bb ) differences in quantities : allowances shall be made when
            the amount of any price differential is wholly or partly due
            to either :
             i)   price discounts fbr quantity sales which have been made
                  freely available in the normal course of trade over a .
                  representative preceding period of time , usually not
                  less than six months , and in respect of a substantial
                  proportion , usually not less than 20% , of the total sales
                  of the product under consideration made on the domestic
                  market or , where applicable , on a third-country market ;
                  deferred discounts may be recognized if they are based
                  on consistent practice in prior periods , or on an
                  undertaking to comply with the conditions required to
                  qualify for the deferred discount , or
             ii ) to savings in the cost of producing different quantities .
 ---pagebreak---              However , when the export price is based on quantities which are
             Less than the smallest quantity sold on the domestic market or ,
             if applicable , to third countries , then the allowance shall
             be determined in such a manner as to reflect the higher price .
             for which the smaller quantity wouLd be sold on the domestic,
             market or, if applicable , on a third-country market ;
    ( cc ) differences in conditions and terms of sale : allowances shall
             be limited , in general , to those differences which bear a
             direct relationship to the sales under consideration and
           . include , for example , differences in duties and indirect
             taxation , . credit terms , guarantees , warranties , technical
             assistance , servicing, commissions or salaries paid to saLesmen ,
             packing , transport , insurance , handling , loading and ancillary
             costs ; allowances generally will not be made for differences
             in overheads and general expenses , including research and
             development costs , or advertising , unless such costs are
             incurred on behalf of a purchaser ; the amount of these
             allowances shall normally be determined by the cost of such ,
             differences to the seller, though consideration may also be
             given to their effect on the value of the product ;
    ( dd ) differences in the level of trade : where sales at the same level'
         s of trade do not exist or are insufficient to be regarded as
             representative , the allowance to be made on sales at a "different
             level of trade shall be based on the costs directly attributable
             to that difference .
    Cee ) allocation of costs : in general , all cost calculations shall         ,
             be based on available accounting data, normally allocated ,,
             where necessary, in proportion to the turnover for each product
             and market under consideration .
                                         -                    •              ^ .
c ) No product shall be considered to have been dumped by reason of the
    exemption of such product from duties or taxes borne by the Like
    product when destined for consumption in the country of origin or
    export , or by reason of the refund of such duties or taxes ."
 ---pagebreak---                      - 9 -
Article 5 of that Regulation is replaced - by the following , which
becomes Article 2(6 ):        .                                     '     ^
"6 . For the purpose of this Regulation , " like product " means a product
     which is . identical , i.e. , alike in all respects to the product ,
     under consideration , or in the absence of such a product , another
     product which has characteristics closely resembling those of the
     product under consideration ."
Article 3(5 ) of that Regulation becomes Article 2(7 ).
 ---pagebreak---                                   Article 3
Article 22 of Regulation ( EEC ) No 459 / 68 is replaced by the following ,
which becomes Article 3 :
                                      i         '          •
 Article 3 - Subsidies
 1.      A countervailing duty may be imposed for the purpose of offsetting any
         subsidy bestowed , directly , or indirectly , in the country of origin
         or export , upon the manufacture , production , export or transport of
         any product whose introduction into Community commerce causes injury .
 2.      Subsidies bestowed on exports include , but are riot limited to , the
         practices listed in       Annex A    to this Regulation .
                                                         .   . •   I       „
 3.      The exemption of a product from import charges or indirect taxes , as
         defined in the Notes to Annex A            to this Regulation , effectively
         borne by the like product when destined for consumption in the country
       . of origin or export , or the refund of such charges or taxes , shall not
  r      be considered as a subsidy for' the purposes of this Regulation .
                           ' s.             "                        .   .
 4.      a ) The amount of the subsidy shall be determined per unit of the
     -       subsidized product exported to the Community .
    : b ) In establishing the amount of any subsidy the following elements
             shall be deducted from the total subsidy :                            , '
             ( aa ) any application fee,' deposit , or similar payment made in .
                                .  .                                         »
                    order to qualify for, or receive the benefit of, the subsidy ,
             < bb ) export taxes , duties or other charges levied on the export of
               v    the product to the Community specifically intended to offset
                    the subsidy .         '                      "                     ,
             Where an interested party claims such a deduction , it must prove
             that the claim is justified .        - '                  -
 ---pagebreak---                                  - 11
       c ) where the subsidy is not granted by reference to the quantities
           manufactured , produced , exported or transported , the amount shall
           be determined by allocating the value of the subsidy as
           appropriate over the level of production or exports of the product
           concerned during a suitable period .    Normally this period shall be
           the accounting year of the beneficiary .    However , where the
           subsidy - is used to acquire productive assets the period shall
           correspond to a reasonable period for depreciation .
       d.1 The value of subsidized loans or guarantees shall generally be
           considered as the difference between interest rates paid or payable
           by the beneficiary and normal commercial rates effectively
           payable on comparable loans or guarantees .                        ^
       e ) In the case of imports from non-market economy countries and in
                                                                        (1 )
           particular* those to which Regulations ( EEC ) Nos 2532 / 78      and
                   (2)
           925 / 79 .  apply , the amount of any subsidy may be determined by
           comparing the export price as calculated in accordance with
           Article 2(4 ) with the normal value as determined in accordance with
           Article 2(3 ) ( c ) .
       f ) Where the amount of subsidization varies , weighted averages may
           be established .                                      -
( 1 ) OJ No L 306 of 31.10.1978 , p. 1
( 2 ) OJ No L 131 of 29.05.1979 , p. 1
                                                              !
 ---pagebreak---                                 -Article 4
Article .4 of Regulation ( EEC ) No 459 / 68 is replaced by the following :
" Article 4 ~ Injury
  1.  A determination of injury shall be made only if the dumped or
      subsidized imports are , through the effects of dumping or
      subsidization , causing injury i.e. , causing or . threatening to cause
      material injury to an established Community industry or materially
      retarding the establishment of such an industry .        Injuries caused
      by other factors which , individually or in combination , also adversely
      affect the Community industry must not be attributed to the dumped .
      or subsidized imports .                                              . -
  2.  An examination of injury shall involve the following factors , no one
      or several of which can necessarily give decisive guidance :
      a ) " volume of dumped or subsidized imports, in particular whether there
            has been a significant increase , either in absolute terms or
            relative to production or consumption in the Community ;
      b ) the prices of dumped or subsidized imports in particular whether '
            there has been a significant price undercutting as compared with
            the price of a like product in the Community ; '
      c ) the consequent impact on the industry concerned as , indicated by
            actual or potential trends in the relevant economic factors such as :
         - - production       .
            - utilization of capacity
            - stocks                       . ~
            - sales
            - market share ,,                                ■
            - prices ( i.e. , depression of prices or prevention of price increases
              which otherwise would have occurred )
 ---pagebreak---                                  - 13 -
            - profits                                         ''
            - return on   investment
            - cash flow ,
            - employment .
3.      A determination .of threat of injury may only be made where a particular
        situation is likely to develop into actual injury . In this regard
        account may be taken of factors such as :
        a ) rate- of increase of the dumped or subsidized exports to the
            Community ,   .       •        .
                          \
        b ) capacity of the country of origin or export to generate, further
            such exports , and the . likelihood that § uch exports will be to the
            Community ,
        c ) the nature of any subsidy and the trade effects likely to arise
            therefrom .
4.      The effect of the dumped or subsidized imports shall be assessed in
        relation to the Community production of the like product when
        available data permit its separate identification .      When the
        Community production of the like product has no separate identity ,
    ^   the effect of the dumped or subsidized imports shall be assessed in
  '     relation to the production of the narrowest group or range of
        production which includes the like product for which the necessary
        information can be found .
5.      The term " Community industry " shall be interpreted as referring to
        the Community producers as a whole of the like product or to those
      . of them whose collective output of the products constitutes' a major
        proportion of the total Community production of those products
        except that :
        - when producers are related to the exporters or . importers or are
           themselves importers of the allegedly dumped or subsidized product
           the term " Community industry" may be interpreted as referring to
           the rest of the producers :
 ---pagebreak--- in exceptional ci reumstances the Community may , for the production
in question , be divided into two or more competitive markets and
the producers within each market regarded as a. Community industry
a ) the producers within such market sell all or almost all their
 ; production of the product in question in that market and
b ) the demand in that market -is not to any substantial degree
     supplied by producers of the product in question located
   / elsewhere in the Community .
In such circumstances injury may be found to exist even where a
major portion of the total Community industry is not injured
provided there is a concentration of dumped or subsidized imports
into such an isolated market and provided further that the dumped
or subsidized imports are causing injury to the producers of all .
or almost all of the production within such market ."    .
 ---pagebreak---                              - 15 -
                              Article 5
  1. Article 5 of Regulation ( EEC ) No 459 / 68 shall bear the title " Complaint ".
  2. Article 6(1 ) of that Regulation is replaced by the following , which
     becomes Article 5(1 ):                 ■    •
     " 1 . " Any natural or legal person , or any association not having legal
             personality , acting on behalf of a Community industry which
             considers itself injured or threatened by dumped or subsidized
              imports may lodge a written complaint ."
  3. Article 7 of that Regulation is replaced by the following , which
     becomes Article 5(2 ):
                                 '   . . ..   /
       2.    The complaint shall contain sufficient evidence of the existence
             of dumping or subsidization and the injury resulting therefrom ."
- 4. Article 6(2 ) of that Regulation is replaced by the following , which
     becomes Article 5(3 ):
     "3 .    The complaint may be submitted to the Commission , or a Member
             State , which shall forward it to the Commission .  The Commission
             shall inform Member States of complaints it receives ."
  5. The following new text becomes Article 5(4 ):                  •
     " 4i    The complaint may be withdrawn , in which case proceedings may be
             terminated unless such termination would not be in the interest
             of the Community ."
  6. Article 9 of that Regulation is replaced by the following , which
     becomes Article 5(5 ):-                                   '
     "5 .    Where it becomes apparent after consultation as provided for in
             Article 6 that the complaint does not provide sufficient evidence
             to justify initiating an investigation , then the complainant
             shall be so informed ."
 ---pagebreak---                      - 16 -•
Article 8(2 ) of that Regulation becomes Article 5(6 ). The words
" or subsidization " are inserted after the word " dumping".
  /
 ---pagebreak---                                - 17 -
                           Arti c Le 6               •
1. Article 6 of Regulation ( EEC ) No 459 / 68 shall bear the title
   " Consultations "..
2. Article 12 of that Regulation becomes Article 6C1 ) to 6(4 ).
3. Article 13 of that Regulation is replaced by the following , which
   becomes Article 6(5 ) :                                      ' / '
   "5 . Consultation shall in particular cover :            •
        a ) the existence of dumping or of a subsidy and the margin or
            amount thereof ;       v
        b ) the existence and extent of injury ;
                I
        c ) the causal link between the dumped or subsidized imports
            and injury ;                               _
        d ) the measures which , in the circumstances , are appropriate to
            prevent or remedy the injury caused by dumping or the subsidy
            and the ways and means for putting such measures into effect ."
 ---pagebreak---                              - 18 -
                               Article 7
' 1. Article 7 of Regulation ( EEC ) No 459 / 68 shall bear the title
     " Initiation and subsequent investigation ". .
  2. The first three paragraphs of Article 10 of that Regulation are
     replaced by the following , which becomes Article 7(1 ) and 7(2 ):
     "1 .   Where , after consultations within the Committee , it is apparent
            that there is sufficient evidence to justify initiating a       ,
            proceeding the Commission shall immediately :
            a ) announce the initiation of a proceeding in the Official Journal
                 of the European Communities ; such announcements shall 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 period within which interested parties may apply to
                 be heard by the Commission in accordance with the provisions
                 of paragraph 5 ;
                                         ^            • 1
            b ) so advise the exporters and importers known to the Commission
                 to be concerned as well as representatives of the exporting
                 country and the complainants ;                 '
            c ) commence the investigation at Community level , acting in
                 co-operation with the Member . States ; such investigation shall
                 cover both dumping or subsidization and injury resulting
               . therefrom and shall be carried out in accordance with the
                 provisions of paragraphs 2 to 8 .
 ---pagebreak---                                - 19 -
2.     a ) The Commission shall seek all information it deems to be
             necessary and , where it considers it appropriate , examine and
             verify the records of importers , exporters , traders , agents ,
             producers , trade associations and organizations .
       b ) However , when it is necessary to carry out investigations in
             third countries , the Commission shall hear'the opinions expressed
             within the Committee before proceeding .   The investigations of
             the Commission may be carried out only if the firms concerned
             give their consent and the government of the country in
             question has been officially notified and raises no objection .
             The Commission shall be assisted by officials of those Member
             States who so request ."
Article 10(5 ) ( a ) of that Regulation is replaced by the following ,
which becomes Article 7(3 ) ( a ):                                        •
                                                               \ .. .         '
"3 .      a ) The Commission may request Member States :
              - to supply information ;
       "             v                     .  .   ..                    -
               - to carry out all necessary checks and inspections , particularly
                • amongst importers , traders and Community producers ;
               - to carry out investigations in third countries , provided
                  the firms concerned give their consent and the government
                  of the country in question has been officially notified and
                  raises no objection ."
                                                                                Ν
 Article 10(5)(b ), ( c ) and ( d ) of that Regulation become Article 7(3)(b ),,
 ( c ) and ( d ).
 Article 10(4 ) of that Regulation becomes Article 7(4 ), with the          '
 following modifications :
   a ) In subparagraph ( a ) the words " anti-dumping" are deleted .
   b ) The following is inserted in subparagraph ( b ) after
         the words " subject to the investigation ":
 ---pagebreak---                                - 20 -
          and,' in the case of subsidization , the representatives of the
                                        V
          country of origin or export ".
    c ) In subparagraphs ( a.) and (cHbb), the reference
        to Article 11 becomes a reference to Article 8 ;
    d) Subparagraph < c)<aa)iiii ) is replaced by the following :
        " iii ) be received , in cases where a provisional duty has been
                applied, not later than two weeks after publication of the
                imposition of that duty ."
    e ) In subparagraph ( c)(cc ) the reference to Article 17 becomes a
        reference to Article 12 and the word " normally" is inserted after
        the first two words of that subparagraph .
6. Article 10(6)(a ) and 10(6)(b ) of that Regulation become respectively
   Article 7(5 ) and 7(6 ).
                      •            -                                      *
                                                 »
7. Article 10(7 ) of that Regulation is replaced by the following , which
   becomes Article 7(7 ):
   "7 .   a ) The provisions of this article shall not preclude the Community
              authorities from reaching preliminary determinations or from
              applying provisional measures expeditiously .
          b ) In cases in which any interested party or third country
              refuses access to , or otherwise does not provide necessary
              information within a reasonable period or significantly
              impedes the investigation , preliminary or final findings,
              affirmative or negative , may be made on the basis of the facts
              Ψ
              avai lable .
8. Article . 19(6 ) of that Regulation becomes Article 7(8 ).  The words " or
   countervailing " are inserted after the word " anti-dumping ".
 ---pagebreak---                             - 21 -
9. The following new text becomes Article 7(9 ):
   "9 . A proceeding is concluded either by its termination or by
        definitive action .   Conclusion should normally take place within
        one year of initiation of the proceeding ."
 ---pagebreak---                            - 22 -
                           Article 8
                                                              \
1. Article 8 of Regulation ( EEC ) No 459 / 68 shall bear the turtle
   " Confidentiality ".
2. Article 11(1 ) and ( 2 ) of that Regulation become respectively
   Article 8(1 ) and 8(2)(a ).    The words " or countervailing" are inserted
   after the word " anti-dumping".
3. The following new text becomes Article 8(2 ) ( b ) and 8(3 ) of that
   Regulation :
   "2 . b ) Each request for confidential treatment shall indicate why the
             information is confidential . - The Commission may require that
            a non-confidential summary of the information , or a statement
            of the reasons why the information is not susceptible of       such
            summary , be provided .
    3.    Information will ordinari ly be . considered to be confidential if
          its disclosure is likely to have a significantly adverse effect
          upon the supplier or the source of such information ."         ;
4. Article 11(3 ) of that Regulation becomes Article 8(4 ).
5. Article 11(4 ) of that Regulation is replaced by the following , which
   becomes Article 8(5 ):
   "5 .   The provisions of this Article shall not preclude the disclosure
          of general information by the Community authorities and in
          particular of the reasons on which decisions taken in pursuance
          of this Regulation are based .    Such disclosure must take into
          account the legitimate interest of the interested parties that
          their commercial secrets should not be divulged ."
 ---pagebreak---                                   • a 23 -
                               Article 9
1.    Article 9 of Regulation ( EEC ) No 459 / 68 shall bear the title
      " Termination of proceeding where protective measures are unnecessary ".
2.    Article 14(1 ) of that Regulation becomes Article 9(1 ).      The words
    . " from consultation as provided for in . Article . 13"' are replaced by
   • the words " after consultations within the Committee ". The words _
 ;    " stand terminated " are replaced by the words " be terminated ".
3.    Article 14(1 ) ( b ) of that Regulation is replaced by the 'following ,
      which becomes Article 9(2 ):
      "2 .  The Commission shall inform any representatives of the country
            of origin or export and the parties known to have an interest
            and shall announce the termination in the Official Journal of the
             European Communities setting forth its basic conclusions and a
            summary of the reasons therefore ."
 ---pagebreak---                                  - 24 -
                                  Article 10
 Article 14(2 ) ( a ) to ( d ) of Regulation ( EEC ) No 459 / 68 is replaced by the
 following , which becomes Article 10 :
 " Article 10 - Undertakings
   1 ..    Where during the course of an investigation undertakings are offered
           which the Comnri ssion ^ after consultations within the Committee,
           considers acceptable , anti-dumping / ant i-subsidy proceedings may be
           terminated without the imposition of provisional or definitive duties .
           Such termination shall be decided in conformity with the procedure?
           laid down in Article 9(1 ) and information shall be given and notice
           published in accordance with Article 9(2 ).     Such termination does hot
           preclude the definitive collection of amounts secured by way of
           provisional duties pursuant to the provisions of Article 12(2 ).
   2.      The undertakings referred to under the preceding paragraph are those
           under which :
           a ) the subsidy is eliminated or limited , or other measures concerning
       >       its injurious effects taken A by the government of the country of
               origin or export ; or
         • b ) prices are revised or exports cease to the extent that the Commission
               is satisfied that either the margin of dumping or the amount of the
■ *            subsidy/ or the injurious effects thereof, are eliminated .    In case
               of subsidization the consent of the country of origin or export
               shall be obtained .
   3.      Undertakings may be suggested by the Commission , but the fact that
           such undertakings are not offered or an invitation to do so is not
           accepted, shall not prejudice the consideration of the case .       However ,
           the continuation of dumped or subsidized imports may be taken as
           evidence that the situation is more likely to develop into
           injury .                                      ,                  ,
 ---pagebreak--- If the undertakings are accepted, the investigation of injury shall
nevertheless be completed if the Commission , after consultations
within the Committee , so decides or if request is made , in the case of
dumping , by exporters representing a significant percentage of the trade
involved or, in the case of subsidization , by the country of origin
or export .  In such a case , if the Commission , after consultations
within the Committee/ makes a determination of no injury , the under­
taking shall automatically lapse .   However , where a determination of
no threat of injury is due mainly to the existence of an undertaking
the Commission may require that the undertaking be maintained .
The Commission may 'require any party from whom an undertaking has been
accepted to provide periodically information relevant to the fulfill-
ment of such undertakings , and to permit verification of pertinent
data .  Non-compliance with such requirements shall be construed as
a violation of the undertaking .
Where an undertaking has been withdrawn or where the Commission has
reason to believe or suspect that it has been violated and that
further investigation is warranted , it shall forthwith inform the
Member States and reopen the proceeding .    Furthermore , where the
Community interests call for such intervention , it shall immediately
apply provisional measures using the information available ."
 ---pagebreak---                                   - 26 -
                                 Article 11
-1 .   Article 11 of Regulation { EEC ) No 459 / 68 shall bear the title
       "Provisional duties ".
 2 . . Article 15(1)(a ) and ( b ) of that Regulation is replaced by the
       following , which becomes Article 11(1 ) and 11(2)(a):
       "1 .   Where preliminary examination shows that dumping or a subsidy
              exists and that there is sufficient evidence of injury caused
              thereby and the interests of the Community call for intervention
              to prevent injury being caused during the proceeding , the
              Commission , acting at the request of a Member State or on its
              own initiative , shall impose a provisional anti-dumping or
              countervailing duty .     In such cases entry of the products concerned
              for Community consumption shall be conditional upon the provision
              of security for the amount of the provisional duty , definitive
                                                                • v
              collection of which shall be determined by the subsequent
              decision of the Council under Article 12(2 ).
                                                                           !
         2.   a ) The Commission shall take such provisional action after
                   consultations within the Committee, or , in cases of extreme
                 . urgency , after informing the Member States .    In this latter
                   case > consultations shall take place within the Committee
                   ten days at the latest after notification to the Member States
                   of the action taken by the Commission ."
 3.    Article 16(1 ) of that Regulation is replaced by the following, which :
       becomes Article 11 ( 2 ) ( b ) :
       " b ) The Council , acting by a qualified majority, way decide differently ."
 4.    Article 15(1)(c ) of that Regulation becomes Article 11(3).          The words
       " anti-dumping duty" are replaced by the words " anti-dumping or
       countervailing duty".
 ---pagebreak---                                       - 27 -
5.   Art l c Le . 1 5 ( 2 ) ( a ) of that Regulation is replaced by the following ,
     which becomes Article 11(4 ):
     "4 .    Provisional duties shall have a maximum period of validity of
             four months . However , where exporters representing a significant
            percentage of the trade involved so request or , pursuant to a
             written notice of intention from the Commission , do not object ,
            provisional anti-dumping duties may be extended for a further
            period of two months ."
6.   Article 16(2 ) of that Regulation is replaced by the following , which
     becomes Article 11(5 ):
     "5 .    Any proposal for final action , or for extension of provisional
             measures , shall be submitted to the Council by the Commission not
             later than one month before expiry of the period of validity of
             provisional duties ."
7 .. Article 15(2)(b ) of that Regulation is replaced by the following , which
     becomes Article 11(6 ):
     "6 .    After expiration of the period of validity of provisional duties ,
             the security shall be released as promptly as possible to the
             extent that the Council has not decided to collect it definitively
 ---pagebreak---                            Article 12
 Article 12 of Regulation ( EEC ) No 459 / 68 shall bear the title
 " Definitive action ".
 Article 17(1 ) of that Regulation is replaced by tire following , which
 becomes Article 12(1 ):
 "1 .  Where the facts as finally established show that there is dumping
       or subsidization, and injury caused thereby , and the interests of
       the Community call for Community intervention , a definitive
       anti-dumping or countervailing duty shall be imposed by the CounciL
       acting by qualified majority on a proposal submitted by the
       Commission after consultation within the Committee ."
 Article 17(2 ) ( a ) of that Regulation becomes Article 12(2)(a ). The words
'anti-dumping duty" are replaced by the words " anti-dumping or
 countervailing duty".
 Article 17(2)(b ) of that Regulation is replaced by the following ,
 which becomes Article 12(2 ) ( b ):
 "2 .  b ) The definitive collection of such amount shall not be decided
           upon unless the facts as finally established show that there
           has been dumping or subsidization, and injury .     For this
           purpose , " injury"shal I not include material retardation of the
           establishment of a Community 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 ." -
 ---pagebreak---                             - 29 -
                           Article 13
1. Article 13 of Regulation ( EEC ) No 459 / 68 shall bear the title
   " General provisions on duties ".
2. Article 19(1 ) of that Regulation becomes Article 13(1 ).    The words
   "anti-dumping duties " are replaced by the words " anti-dumping or *
   countervailing duties ".
3. Article 20(1 ) and ( 2 ) of that Regulation is replaced by the
   following , which becomes Article 13(2 ):
   "2 .  Such regulations shall indicate in particular the amount and
         type of duty imposed ; the product covered ; the country of origin
         or export ; the name of the supplier , if practicable ; the reasons
         on which they are based ."
4. Article 19(3 ) and 23 of that Regulation are replaced by the following ,
   which becomes Article 13(3 ):
   "3 .  The amount of such duties shall not exceed the margin of dumping
         provisionally estimated or finally established or the amount of
         the subsidy provisionally estimated or finally established ; it
         should be less if such lesser duty would be adequate to remove
         the injury ."
5. Articles 19(2)(a ) and ( b ) are replaced by the following , which
   becomes Article 13(4 ):          v     -
   "4 .  a ) Anti-dumping and countervailing duties shall.be neither imposed
             nor increased with retroactive effect and shall apply to the
             products which , after entry into force of such duties > are
             entered for Community consumption . For this purpose , the date
             of acceptance by the customs authorities <if the declarant 's
             statement of his intention , to enter the goods for consumption
             shall be determinant . ,
 ---pagebreak---                       - 30 -
b ; However, where :
     Caa ) for dumped products, the Council determines that there is
            a history of dumping which caused injury or that the
            importer was , or should have been , aware that the exporter
            practices dumping and that such dumping would cause
            injury, and that the injury is caused by sporadic dumping
            i.e. , massive dumped imports of a product in a relatively
            short period, to such an extent that , in order to preclude
            it recurring, it appears necessary to impose an anti-
            dumping duty retroactively on those imports or
     ( bb ) for subsidized products the Council determines in critical
            circumstances that injury which is difficult to repair is
            caused by massive imports in a relatively short period of a
            product benefitting from export subsidies paid or bestowed
            inconsistently with the provisions of the 6ATT and of the
            Agreement on interpretation and application of Articles VI , .
            XVI and XXIII of the GATT and where it is deemed necessary *
   *        in order to preclude the recurrence of such injury , to
            assess countervailing duties retroactively on these
            imports or
     Ccc ) for dumped or subsidized products, the Council determines
            that an undertaking has been violated          .
    the definitive anti-dumping or countervailing duties may be
     imposed on products which were entered for Community consumption
    not more than ninety days prior to the date of application of
    provisional duties , except that in the case of violation of an      *
   undertaking such retroactive assessment shall not apply to
    imports entered before the violation ."
 ---pagebreak---                                  - 31 -
6.   Article 19(2)(c ) of that Regulation is replaced by the following , which
     becomes Article 13(5 ):
     "5 .  Where a product is imported into the Community from more than one
           country , duty shall be levied at an appropriate amount on a non-
          discriminatory basis on all imports of such product found to
           be dumped or subsidized and causing injury , other than imports
           from those sources in respect of which undertakings have been
   ;       accepted ."
7.   Article 19(5 ) of that Regulation is replaced by the following , which
                                                  9
     becomes Article 13(6 ):
     "6 .  Where the Community industry has been interpreted as referring to
           the producers in a certain region , the Commission shall give
           exporters an opportunity to offer undertakings pursuant to
           Article 10 in respect of the region concerned .   If an adequate
           undertaking is not given promptly or is not fulfilled , a
           provisional or definitive duty may be imposed in respect of the
           Community as a whole ."
8.   Articles 20(3 ) and 21 of that Regulation become , respectively ,
     Articles 13(7 ) and 13(8 ). The words " or countervailing" are inserted
     in each case after the word " dumping".
9.   Article 24 of that Regulation becomes Article 13(9 ).     The words
     " bounty or " are deleted .                             -
 ---pagebreak---                                                    32 -
  \
     î                                         Article 1 4
0               Articles 18(1 ), 14(2 ) ( e ) and 18(2 ) of Regulation ( EEC ) No 459 / 68 are
Iji
« il
                replaced by the following , which becomes Article 14 :
                            *                – '
! ■■                                                                  ' > .■     '
                 Article 14 - Review'
   >
   j       '1 .       The regulations imposing provisional or definitive anti-dumping or
  5                   countervailing duties and the decisions to accept undertakings shall
  ;!                  be subject to review where warranted.       Such review may be held either
  j      •            at the request of a Member State or on the initiative of the Commission
 j                    or if any interested party so requests and submits positive information
 |     '              substantiating the need for review -      Such requests shall be addressed
 i                           ■
                      either to a Member State or to the Commission .        A Member State
                      receiving any such request shall "inform the Commission , which shall
                      notify the other Member States .      Where the Commission receives the
                      request , it shall inform the Member States .
                 2.   Where , after consultations within the Committee* it becomes apparent
                      that review is warranted , the proceedings shall be re-opened in
                      accordance with Article 7 where the circumstances so require .           Such .
                      re-opening shall not per se affect the measures in operation .
                                V                :                                     ..
                 3.   Where warranted by the review , carried out either with or without
                      re-opening of the proceeding , the measures shall be amended , repealed
                      or annulled by the Community institution competent "for their
                      introduction .  However , where measures have been taken under the
                      transitional provisions of an Act of Accession the Commission shall
                    • itself amend, repeal or annul them and shall report this to the :
                      Council ; the latter may , acting by a qualified majority , decide that
                      different action be taken ."
                                                                                      /
 ---pagebreak---                          Arti c Le . 15
1. Article 15 of Regulation ( EEC ) No 459 / 68 shall bear the title " Refund".
2. Article 19(4)(a ) of that Regulation is replaced by the following ,
   which becomes Article 15(1 ):
   "1 . Where an importer can show that the duty collected exceeds the
        actual dumping margin or the amount' of the subsidy , consideration
        being given to any application of weighted averages , the excess
        amount shall be reimbursed ; uhere provisional measures were taken ,
        the same shall apply in respect of release of securities ."
3. Article 19(4)(b ) becomes Article 15(2 ).
 ---pagebreak---                                  - 34 -
                                  Article 16
Articles 1(2 ) and 1(3 ) are replaced by the following - which becomes
Article 16 :
" Article 16 - Final provisions
  This Regulation shall not preclude the application of :
  1.    any special rules laid down in agreements concluded between the
                                    /
      - Community and third countries ;                   t
  2.    the Community Regulations in the agricultural sector and Regulations
        Nos 1059/69 / EEC ( 1 ) , 2730/75 /EEC C2 ) and 2783 /75 / EEC C3 ) ; the present
        Regulation shall operate by way of complement to those Regulations
        and in derogation from any provisions thereof which preclude the
        application of anti-dumping or countervailing duties .
  3.    special measures , provided that such action does not run counter
        to obligations under the GATT .
( 1 ) OJ No L 141 of 12.06.69
( 2 ) OJ No L 281 of 01.11.75
( 3 ) OJ No L 282 of 01.11.75 "
 ---pagebreak---                             Arti cle 17
Annex A to this Regulation shall become the Annex to Regulation
( EEC ) No 459 / 68 .
                            Article 18
Articles 2(2 ), 8(1 ), 8(3 ) and 25 of Regulation ( EEC ) No 459 / 68 are
deleted .
                            Article 19
The provisions of Regulation ( EEC ) No 459 / 68 as amended by the present
Regulation are published as Annex B to the present Regulation .
                            Article 20
This Regulation shall enter into force on 1 January 1980 .
 ---pagebreak---                                                         ANNEX A
Illustrative List of Exoort 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 t rat sport and- freight charges on export       ;
shipments , prov' ded or mandated by governments , on          t
terms more favourable than for domestic shipments . .
           ! -                                                I
d) The delivery by governments or their agencies of
           I                          -•                       ;
imported or domestic products or services for use in          ?
the production of exported goods , on terms or conditions'
more favourable than for delivery of like or directly        j
competitive products or services for use . on the pro-       J
duction of goods for domestic consumption , if ( in the
case of products ) such terms or conditions are more
favourable than . those commercially available on world       i
                                                               i
markets to theil* exporters .
                  1
e) The full or Martial exemption, remission, or deferral |
specifically re'lated to exports , of direct taxes or
social welfare charges paid or payable by industrial          i
                                                              «
or commercial enterprises .     Notwithstanding the fore-     '
                                                             <
going , deferral of taxes and charges referred to above
need not amount to an export subsidy where , for example,;
appropriate interest charges are collected .
 ---pagebreak--- f > The allowance of special deductions directly related
to exports or export - performance, over and above those
granted in respect to 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 in excess of those levied in respect
of the production and distribution of like products when
sold for domestic consumption . The problem of the
 excessive remission of value added tax is exclusively
 covered by this paragraph .
h ) The exemption , remission or deferral of prior stage
cumulative indirect taxes 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 goods that are physically
incorporated ( making normal allowance for waste ) in the
exported product .   This paragraph does not apply to
value added tax systems and border tax adjustments in
lieu thereof .
i ) The remission or drawback of import charges in excess
of those levied on imported goods that are physically
incorporated ( making normal allowance for waste) in
the exported product ; provided, however , that in parti "
cular cases a firm may use a quantity of home market
goods equal to , and having the same quality and
characteristics as , the imported goods 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, normally not to
exceed - two_years .
 ---pagebreak--- j ) The provision by governments ( or spedial institutions
controlled by governments ) of export credit guarantee or
insurance programmes , £>f insurance or guarantee
programmes against increases in the costs of exported
products or of exchange risk programmes / at premium
rates , which are manifestly inadequate to cover the
long-term operating costs and losses of the programmes .
k ) The grant by governments ( or special institutions
Controlled by and / of acllny uhdef the authoHty Of
governments ) of export credits at rates below those
which they actually have to pay for the funds so employed
( or would ha ^ i? to pay if they borrowed on international
capital markets in order to obtain funds of the same
maturity 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 insti­
tutions in ol taining credits , insofar as they are used
to secure, a Material advantage in the field of export
credit terms *
                                        • « • f
    Provided, however , that if the country of origin -or
export is a party to an international undertaking on
      •                                         ι
official export credits to which at least twelve
original signatories to the Agreement on interpretation
and application of Articles VI , XVI and XXIII of the
GATT are par'iies as of 1 January 1979 ( or a successor
undertaking which has been adopted by those original
signatories )* or if in practice the country of      origin
or export ap.Uies the interest rate provisions of the
relevant undertaking , an export credit practice which
is in conformity with those provisions shall not be
considered an export subsidy.
I ) Any other charge on the public account constituting
an export- subsidy in the sense of Article XVI of the
GATT .
 ---pagebreak---   NOTES      .                               :
                                                 »
    For the purposes of this Annex the following definitions
   apply :               -                         *
   1 . The term " direct taxes" shall mean taxes on wages , .
 profits , interest , rents , royalties, and all other forms
 of income , and taxes - on the ownership of real property .
   2 . The term " import charges " shall mean tariffs , duties ,
  and other fiscal charges not elsewhere enumerated in
  this paragraph that are levied on imports .
                                               ι
    3 . The term " indirect taxes" shall mean sales , excise ,
    turnover , value added, franchise , stamp, transfer,
    inventory and equipment taxes , border taxes and all
    taxes other than direct taxes and import charges .
 U. "Prior -stage" indirect taxes are those Levied on goods
 • or services used directly or indirectly in making the
 !                                .
'product .
     5 . " 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
 ! stage of production .
 i
  1            1       -               .   . -
     6 . " Remission" of taxes includes the refund of rebate
     of taxes .