CELEX: 51983PC0087
Language: en
Date: 1983-02-28
Title: PROPOSAL FOR A COUNCIL REGULATION ( EEC ) ON THE STRENGTHENING OF THE COMMON COMMERCIAL POLICY WITH REGARD IN PARTICULAR TO PROTECTION AGAINST UNFAIR COMMERCIAL PRACTICES

No C 83/6                                Official Journal of the European Communities                                  26. 3. 83
                                                               II
                                                        (Preparatory Acts)
                                                  COMMISSION
                Proposal for a Council Regulation on the strengthening of the common commercial
                      policy with regard in particular to protection against unfair commercial practices
                                 (Submitted by the Commission to the Council on 1 March 1983)
THE COUNCIL OF THE EUROPEAN                                         W h e r e a s , to this end, it is advisable to provide the
COMMUNITIES,                                                        C o m m u n i t y with procedures enabling it
                                                                    — to respond to any unfair commercial practice and
Having regard to the Treaty establishing the
                                                                        to remove the injury resulting therefrom,
European Economic Community, and in particular
Article 113 thereof,                                                — to ensure full exercise of the Community's rights;
Having regard to the instruments establishing the                   Whereas, in particular, the Community should be
common organization of agricultural markets and the                 enabled to remove the injury resulting from third
Regulations adopted under Article 235 of the Treaty,                countries' practices whose unfair nature is evident
applicable to goods processed from agricultural                     from their incompatibility either with international
products, and in particular the provisions of those                 law or with the rules regarding commercial policy
instruments which allow for derogation from the                     commonly accepted by the Community's principal
general principle that any quantitative restriction or              partners;
measure having equivalent effect may be replaced                    Whereas the measures taken under the procedures in
solely by the measures provided for in those instru-                question should, however, be without prejudice to
ments,                                                              other measures which might be adopted directly
                                                                    pursuant to Article 113 of the Treaty;
Having regard to the proposal from the Commission,
                                                                    Whereas the Community must act in compliance with
Whereas the common commercial policy must be                        its international obligations; whereas where such
based on uniform principles, notably with regard to                 obligations result from agreements, it is important, in
commercial protection; whereas Council Regulation                   order to maintain the balance of rights and
(EEC) No 3017/79 of 20 December 1979 on                             obligations which it is the purpose of those
protection against dumped or subsidized imports                     agreements to establish, to take account of the in-
from countries not members of the European                          terpretation of the agreements by the Community's
Economic Community (*), as amended by Regulation                    principal partners;
(EEC) No 1580/82 (2), and the rules for imports laid
down by Council Regulations (EEC) No 288/82 ( J ),                  Whereas it is necessary to confirm, by establishing a
(EEC) No 1765/82 (4) and (EEC) No 1766/82 (5)                       formal complaints procedure, the right of Community
constitute important components of that policy;                     industry to submit to the Commission any complaint
                                                                    regarding unfair commercial practices by third
Whereas in the light of experience and of the                       countries;
conclusions of the European Council of June 1982,
which considered that it was of the highest                         Whereas for the purposes of implementation of this
 importance to defend vigorously the legitimate                     Regulation there should be cooperation between the
 interests of the Community, it has become apparent                 Member States and the Commission and, to this end,
 that the common commercial policy needs to be                      arrangements should be made for consultations within
 strengthened, notably in the fields not covered by                 an advisory committee;
 existing rules;                                                    Whereas it is appropriate to lay down clearly the
                                                                    rules of procedure to be followed during the exam-
                                                                     ination, in particular the rights and obligations of the
(') OJ No L 339, 31. 12. 1979, p. 1.                                 Community authorities and the parties involved, and
O O J N o L 178,22.6. 1982, p. 9.                                   the conditions under which interested parties may
(J) O J N o L 3 5 , 9. 2. 1982, p. 1.                                have access to information and may ask to be
(4) O J N o L 195, 5.7. 1982, p. 1.                                  informed of the essential facts and considerations on
(5) O J N o L 195,5.7. 1982, p. 21.                                  the basis of which it is intended to recommend and
 ---pagebreak--- 26. 3. 83                          Official Journal of the European Communities                              No C 83/7
adopt measures, and of the possible nature of such            be given on the basis of the elements set out in
measures;                                                     Article 8.
Whereas in conducting the defence of its commercial            3.    The complaint shall be submitted to the
interests, the Community needs to have at its disposal        Commission, which shall inform the Member States
a decision-making process which permits rapid and             without delay.
effective action,
                                                               4.    The complaint may be withdrawn, in which case
                                                              the procedure may be terminated unless such ter-
                                                               mination would not be in the interest of the
HAS ADOPTED THIS REGULATION:                                  Community.
                                                               5.    Where it becomes apparent after consultation
                         Article 1                            that the complaint does not provide sufficient
                          Aims                                 evidence to justify initiating an investigation, then the
                                                               complainant shall be so informed.
This Regulation establishes procedures in the matter
of commercial policy which, subject to compliance
with existing international obligations, are aimed at:                                  Article 4
(a) responding to any unfair commercial practice
                                                                              Referral by a Member State
     attributable to a third country and removing the
     injury resulting therefrom;                               1.    Any Member State may ask the Commission to
(b) ensuring full exercise of the Community's rights.          initiate the procedures referred to in Article 1.
                                                               2.     It shall supply the Commission with the
                         Article 2                             necessary evidence to support its request. Where
                        Definitions                            unfair commercial practices are alleged, proof thereof
                                                               and of the injury resulting therefrom must be given
1.     For the purposes of this Regulation, the                on the basis of the elements set out in Article 8.
Community's rights shall be those pertaining to the
fields covered by the commercial policy.                       3.     The Commission shall notify the Member States
                                                               of the requests without delay.
2.     For the purposes of this Regulation, unfair
commercial practices shall be any practices attribut-
able to third countries which are incompatible with                                     Article 5
international law or the rules commonly accepted by                             Consultation procedure
the Community's principal partners regarding
commercial policy.                                             1.    For the purposes of consultations pursuant to
                                                              this Regulation, an advisory committee, hereinafter
3.     For the purposes of this Regulation, injury shall      referred to as 'the committee', is hereby set up and
be any material injury caused or threatened to                shall consist of representatives of each Member State,
Community industry.                                           with a representative of the Commission as chairman.
4.     The term 'Community industry' shall be taken            2.    Consultations may be initiated at the request of
to mean the Community producers as a whole, of                 a Member State or on the initiative of the
products identical or similar to the product which is          Commission. The chairman shall provide the Member
the subject of unfair practices or of products                 States, as promptly as possible, with all relevant infor-
competing directly with that product, or those                 mation in his possession.
producers whose combined output constitutes a major
proportion of total Community production of the                3.    The committee shall meet when convened by its
products in question.                                          chairman.
                                                               4.    Where necessary, consultations may be            in
                         Article 3                             writing. In such case the Commission shall notify      in
      Complaint on behalf of Community producers               writing the Member States who, within a period         of
                                                               eight working days from such notification, shall       be
 1.    Any natural or legal person, or any association         entitled to express their opinions in writing.
not having legal personality, acting on behalf of a
Community industry which considers that it has                 5.     Consultations shall in particular cover:
suffered injury as a result of unfair commercial               (a) in the case of allegations of unfair commercial
practices may lodge a written complaint.                            practices:
 2.    The complaint must contain sufficient evidence               — the nature of the alleged practices,
of the existence of unfair commercial practices and                 — the existence and extent of the injury caused
the injury resulting therefrom. Proof of injury must                    by the alleged practices,
 ---pagebreak--- No C 83/8                             Official Journal of the European Communities                                 26. 3. 83
    — the causal link between such practices and the           4. (a) The complainants and the exporters and
         injury resulting therefrom,                                    importers primarily concerned, as well as the
    — the measures which, in the circumstances, are                     representatives of the principal exporting
         appropriate to prevent or remedy the injury in                 country or countries may inspect all infor-
         question, and the ways and means for putting                   mation made available to the Commission
         them into effect;                                              except for internal documents for the use of
                                                                        the Commission and its departments, provided
(b) the measures which should be taken to ensure full                   that such information is relevant to the defence
     exercise of the Community's rights.                                of their interests and not confidential within
                                                                        the meaning of Article 7 and that it is used by
                                                                        the Commission in its examination procedure.
                                                                        The persons concerned shall address a
                          Article 6                                     reasoned         request    in  writing    to    the
            Community examination procedure                             Commission,          indicating  the    information
                                                                        required.
 1.    Where, after consultation, it is apparent to the
                                                                   (b) The complainants and the exporters and
Commission that there is sufficient evidence to justify
                                                                        importers primarily concerned and the rep-
initiating an examination procedure, the Commission
                                                                        resentatives of the principal exporting country
shall act as follows:
                                                                        or countries, may ask to be informed of the
(a) is shall announce the initiation of an examination                  essential facts and considerations on the basis
     procedure in the Official Journal of the European                  of which it is intended to recommend a
      Communities; such announcement shall indicate                     commercial policy measure, and also of the
     the product and countries concerned, give a                        possible nature of the measure.
     summary of the information received, and
                                                                   (c)     (i) Requests for information pursuant to (b)
     provide that all relevant information is to be
                                                                               shall:
     communicated to the Commission; it shall state
     the period within which interested parties may                            (aa) be addressed to the Commission in
     make known their views in writing and may apply                                 writing,
     to be heard orally by the Commission in                                   (bb) specify the particular issues on which
     accordance with paragraph 5;                                                     information is sought,
                                                                               (cc) be received not later than one month
(b) it shall so notify officially the representatives of
                                                                                      after the announcement of initiation
     the principal exporting country or countries
                                                                                      of the procedure;
     concerned, with whom, where appropriate,
     consultations may be held;                                           (ii) the information given by the Commission
                                                                               either orally or in writing shall not
(c) it shall conduct the examination at Community                              prejudice any decision which may be
     level, acting in cooperation with the Member
                                                                   *-          taken by the Commission or the Council.
     States.
                                                                               Confidential information shall be treated
2. (a) If necessary, and notably in cases of                                   in accordance with Article 7;
         complaints of unfair commercial practices, the                  (iii) information shall normally be given no
         Commission shall carry out an investigation                           later than 15 days prior to the
         into the records of importers, exporters,                             Commission's decision pursuant to Article
         traders,    agents,     producers     and   trade                      13. Representations made after the infor-
         associations and organizations, provided that                         mation is given shall be taken into
         the firms or organizations concerned give their                       consideration only if received within a
         consent;                                                              period to be set by the Commission in
    (b) where necessary, the Commission shall carry                            each case, which shall be at least six days,
         out investigations on the territory of third                          due consideration being given to the
         countries, provided that the governments of                           urgency of the matter.
         the countries concerned have been officially
         notified and raise no objection;                       5.     The Commission may hear the parties
                                                                concerned. It shall hear them if they have, within the
    (c) the Commission shall be assisted in its                 period prescribed in the notice published in the
         investigation by officials of the Member State         Official Journal of the European Communities, made a
         on whose territory the checks are carried out,        written request for a hearing showing that they are a
         provided that the Member State in question so          party primarily concerned by the result of the
         requests.                                              proceeding and that there are particular reasons why
 3.    The      Member      States    shall   supply    the     they should be heard orally.
 Commission, upon request, with all information
 necessary for the examination, in accordance with the          6.     Furthermore, the Commission shall, on request,
 detailed arrangements laid down by the Commission.             give the parties primarily concerned an opportunity to
 ---pagebreak--- 26. 3. 83                           Official Journal of the European Communities                             No C 83/9
meet, so that opposing views may be presented and              4.     However, if it appears that a request for
any rebuttal argument put forward. In providing this           confidentiality is not warranted and if the supplier is
opportunity the Commission shall take account of the           either unwilling to make the information public or to
wishes of the parties and of the need to preserve              authorize its disclosure in generalized or summary
confidentiality. There shall be no obligation on any           form, the information in question may be disre-
party to attend a meeting and failure to do so shall           garded.
not be prejudicial to that party's case.
                                                               5.     This Article shall not preclude the disclosure of
7.     When the information requested by the                   general information by the Community authorities
Commission is not supplied within a reasonable time            and in particular of the reasons on which decisions
or where the investigation is significantly impeded,           taken in pursuance of this Regulation are based. Such
findings may be made on the basis of the facts                 disclosure must take into account the legitimate
available.                                                     interest of the parties concerned that their business
                                                               secrets should not be divulged.
8.     The Commission shall take a decision as soon as
possible on the opening of a Community examination
procedure following any complaint or request made                                       Article 8
in accordance with Articles 3 and 4; the decision shall
normally be taken within 45 days of referral.                                     Examination of injury
                                                               1.     An examination of injury shall involve the
9.     When it has concluded its examination, the              following factors, no one or several of which can
Commission shall report to the committee. The report           necessarily give decisive guidance:
should normally be presented within five months of
the announcement of initiation of the procedure,               (a) the volume of Community imports or exports
unless the complexity of the examination is such that               concerned, notably where there has been a
the Commission extends the period to seven months.                  significant increase or decrease, either in absolute
                                                                    terms or relative to production or consumption;
10.     The provisions of this Article shall not prevent
protective measures being taken at any time pursuant           (b) the prices of the Community producers'
to Article 12. Immediately after the introduction of                competitors, in particular in order to determine
such measures, the Commission shall carry out any                  whether there has been, either in the Community
additional examinations it considers necessary.                     or on third country markets, significant under-
                                                                    cutting of the prices of Community producers;
                                                               (c) the consequent impact on Community producers
                          Article 7                                 of products simjlar to the product which is the
                                                                    subject of unfair practices or of products
                      Confidentiality                               competing directly with that product, as indicated
                                                                    by trends in certain economic factors such as:
1.     Information received in pursuance of this Regu-
lation shall be used only for the purpose for which it              — production,
was requested.                                                     — utilization of capacity,
                                                                    — stocks,
2. (a) Neither the Council, nor the Commission, nor
                                                                    — sales,
         Member States, nor the officials of any of
         these, shall reveal any information of a                   — market share,
         confidential nature received in pursuance of               — prices (that is, depression of prices or
         this Regulation, or any information provided                    prevention of price increases which would
         on a confidential basis by a party to an exam-                  normally have occurred),
         ination procedure, without specific permission
                                                                    — profits,
         from the party submitting such information.
                                                                    — return on capital,
    (b) Each request for confidential treatment shall
         indicate why the information is confidential               — investment,
         and shall be accompanied by a non-                         — employment.
         confidential summary of the information, or a
         statement of the reasons why the information          2.     Where a threat of injury is alleged, the
         is not susceptible of such summary.                   Commission shall also examine whether a particular
                                                               situation is likely to develop into actual injury. In this
3.     Information will normally be considered to be           regard, account may also be taken of factors such as:
confidential if its disclosure is likely to have a             (a) the rate of increase of exports to the market
significantly adverse effect upon the supplier or the               where the competition with Community products
source of such information.                                         is taking place;
 ---pagebreak--- No C 83/10                           Official Journal of the European Communities                            26. 3. 83
(b) export capacity in the country of origin or export,                              Article 11
    which is already in existence or will be oper-
    ational in the foreseeable future, and the                       Adoption of commercial policy measures
    likelihood that the exports resulting from that           1.    Where it is found as a result of the examination
    capacity will be to the market referred to in point      procedure that action is necessary in the interests of
     (a).                                                    the Community in order:
3.     Injury caused by other factors which, either          (a) to respond to any unfair commercial practice and
individually or in combination, are also adversely                remove the injury resulting therefrom, or
affecting Community industry, must not be attributed         (b) to ensure full exercise of the Community's rights,
to the practices under consideration.
                                                             the appropriate measures shall be determined in
                                                             accordance with the procedure set out in Article 13.
                                                             2.     Any commercial policy measures may be taken
                         Article 9
                                                             which are compatible with existing international
               Termination of the procedure                  obligations, notably:
Where it is found as a result of the examination             (a) recourse to international dispute settlement pro-
procedure that the interests of the Community do not              cedures,
require any action to be taken, the procedure shall be       (b) suspension or withdrawal of any concession
terminated in accordance with Article 13.                         resulting from commercial policy negotiations,
                                                             (c) the raising of existing customs duties or the intro-
                                                                  duction of any other charge on imports,
                         Article 10                          (d) the introduction of quantitative restrictions or any
                       Undertakings                               other measure modifying import or export
                                                                  conditions or otherwise affecting trade with the
1.    Where, during the course of an examination                  third country concerned.
procedure, undertakings are offered which the
Commission, after consulting the Member States,
considers satisfactory, the procedure may be
terminated without a measure being introduced, by                                    Article 12
means of a decision taken pursuant to Article 13.                               Protective measures
2.     The undertakings referred to in paragraph 1 are       In critical circumstances where any delay would result
those by which the authorities of the third country or       in injury which would be difficult to remedy, and
countries concerned undertake to take all necessary          where the Commission has sufficient evidence to
measures:                                                    justify immediate action to safeguard Community
                                                             interests, it may, at the request of any Member State
(a) to remove the unfair commercial practices or the         or on its own initiative, take protective measures on
     injury resulting therefrom, or                          the lines of those specified in Article 11.
(b) to guarantee to the Community the full exercise
     of its rights.
                                                                                      Article 13
3.     The Commission shall supervise compliance with                        Decision-making machinery
the undertaking or undertakings, where appropriate,
on the basis of information supplied at intervals,            1.    The decisions referred to in Articles 9, 10, 11
which it may request from the third countries                 and 12 shall be taken by the Commission after
concerned and check as necessary.                             consulting the Member States, which shall be notified
                                                              by telex. Failing an appeal to the Council, decisions
Failure to supply information requested by the                shall be applicable on expiry of a period of five days
Commission will be regarded as a violation of the             following such notification.        v
undertaking.
                                                              2.    Any Member State which opposed the proposed
4.     Where an undertaking has been violated or              measure when consulted may refer the Commission's
evaded, or where the Commission has reason to                 decision to the Council within the period specified in
believe that it has, or if the undertaking has been           paragraph 1; in that event, application of the
withdrawn or its renewal refused, the Commission              Commission's decision shall be suspended until the
shall inform the Member States forthwith and shall            Council has taken a decision, unless the Commission,
immediately take the measures which appear                    in the situations referred to in Article 12, decides
necessary.                                                    otherwise.
 ---pagebreak--- 26. 3. 83                        Official Journal of the European Communities                           No C 83/11
If, within a period of 30 days following the date of         (b) to the rules establishing the common organization
the Commission's notification to the Member States,              of agricultural markets and their implementing
the Council, acting by a qualified majority, has not             provisions;
decided otherwise, the Commission's decision shall
become finally applicable.                                   (c) to the specific rules adopted under Article 235 of
                                                                  the Treaty, applicable to goods processed from
3.    Decisions shall state the reasons on which they
                                                                  agricultural products.
are based and shall be published in the Official
Journal of the European Communities. Publication
shall in particular be deemed to constitute notification     It shall operate by way of derogation from any
to the countries and parties primarily concerned.            provisions of the rules specified in points (b) and (c)
                                                             which preclude the application of measures taken on
4.    The decisions referred to in Articles 9, 10, 11        the basis of this Regulation.
and 12 shall be taken within the shortest possible
period, which should not normally exceed five
months following presentation of the examination             It shall be without prejudice to other measures which
report. Where recourse is had to international dispute       may be taken pursuant to Article 113 of the Treaty.
settlement procedures, the relevant decisions should
be taken within three months of the conclusion of
such procedures.
                        Article 14                                                   Article 15
This Regulation shall operate by way of complement:          This Regulation shall enter into force on
(a) to the other rules adopted in the commercial             This Regulation shall be binding in its entirety and
     policy field;                                           directly applicable in all Member States.