CELEX: 31986R4057
Language: en
Date: 1986-12-22 00:00:00
Title: Council Regulation (EEC) No 4057/86 of 22 December 1986 on unfair pricing practices in maritime transport

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31986R4057

Council Regulation (EEC) No 4057/86 of 22 December 1986 on unfair pricing practices in maritime transport  

Official Journal L 378 , 31/12/1986 P. 0014 - 0020

COUNCIL REGULATION (EEC) N° 4057/86of 22 December 1986on  unfair pricing practices in maritime transportTHE COUNCIL OF THE EUROPEAN  COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, and in particular Article  84 (2) thereof, Having regard to the draft Regulation submitted by the Commission, Having regard to the opinion of the European Parliament (1), Having regard to the opinion of the Economic and Social Committee (2), Whereas there is reason to believe, inter alia on the basis of the information system set up by  Council Decision 78/774/EEC (3), that the competitive participation of Community shipowners in  international liner shipping is adversely affected by certain unfair practices of shipping lines of  third countries; Whereas the structure of the Community shipping industry is such as to make it appropriate that the  provisions of this Regulation should also apply to nationals of Member States established outside  the Community or cargo shipping companies established outside the Community and controlled by  nationals of Member States, if their ships are registered in a Member State in accordance with its  legislation; Whereas such unfair practices consist of continuous charging of freight rates for the transport of  selected commodities which are lower than the lowest freight rates charged for the same commodities  by established and representative shipowners; Whereas such pricing practices are made possible by non-commercial advantages granted by a State  which is not a member of the Community; Whereas the Community should be able to take redressive action against such pricing practices; Whereas there are no internationally agreed rules as to what constitutes an unfair price in the  maritime transport field; Whereas, in order to determine the existence of unfair pricing practices, provision should  therefore be made for anappropriate method of calculation; whereas when calculating the 'normal  freight rate' account should be taken of the comparable rate actually charged by established and  representative companies operating within or outside conferences or otherwise of a constructed rate  based on the costs of comparable companies plus a reasonable margin of profit; Whereas appropriate factors relevant for the determination of injury should be laid down; Whereas it is necessary to lay down the procedures for those acting on behalf of the Community  shipping industry who consider themselves injured or threatened by unfair pricing practices to  lodge a complaint; whereas it seems appropriate to make it clear that in the case of withdrawal of  a complaint, proceedings may, but need not necessarily, be terminated; Whereas there should be cooperation between the Member States and the Commission both as regards  information about the existence of unfair pricing practices and injury resulting therefrom, and as  regards the subsequent examination of the matter at Community level; whereas, to this end,  consultations should take place within an Advisory Committee; Whereas it is appropriate to lay down clearly the rules of procedure to be followed during the  investigation, in particular the rights and obligations of the Community authorities and the  parties involved, and the conditions under which interested parties may have access to information  and may ask to be informed of the principal facts and considerations on the basis of which it is  intended to propose the introduction of a redressive duty; Whereas, in order to discourage unfair pricing practices, but without preventing, restricting or  distorting price competition by non-conference lines, providing that they are working on a fair and  commercial basis, it is appropriate to provide, in cases where the facts as finally established  show that there is an unfair pricing practice and injury, for the possibility of imposing  redressive duties on particular grounds; Whereas it is essential, in order to ensure that redressive duties are levied in a correct and  uniform manner, that common rules for the application of such duties be laid down; whereas, by  reason of the nature of the said duties, such rules may differ from the rules for the levying of  normal import duties; Whereas open and fair procedures should be provided for the review of measures taken and for the  investigation to be reopened when circumstances so require; Whereas appropriate procedures should be established for examining applications for refund of  redressive duties, HAS ADOPTED THIS REGULATION: Article 1ObjectiveThis Regulation lays down the procedure to be followed in  order to respond to unfair pricing practices by certain third country shipowners engaged in  international cargo liner shipping, which cause serious disruption of the freight pattern on a  particular route to, from or within the Community and cause or threaten to cause major injury to  Community shipowners operating on that route and to Community interests. Article 2In response to unfair pricing practices as described in Article 1 which cause major  injury, a redressive duty may be applied by the Community. A threat of major injury may only give rise to an examination within the meaning of Article 4. Article 3For the purposes of this Regulation: (a)'third country shipowner' means cargo liner shipping companies other than those mentioned under  (d); (b)'unfair pricing practices' means the continuous charging on a particular shipping route to,  from or within the Community of freight rates for selected or all commodities which are lower than  the normal freight rates charged during a period of at least six months, when such lower freight  rates are made possible by the fact that the shipowner concerned enjoys non-commercial advantages  which are granted by a State which is not a member of the Community; (c)the 'normal freight rate' shall be determined taking into account: i(i)the comparable rate actually charged in the ordinary course of shipping business for the like  service on the same or comparable route by established and representative companies not enjoying  the advantages in (b); (ii)or otherwise the constructed rate which is determined by taking the costs of comparable  companies not enjoying the advantages in (b) plus a reasonable margin of profit. This cost shall be  computed on thebasis of all costs incurred in the ordinary course of shipping business, both fixed  and variable, plus a reasonable amount for overhead expenses. (d)'Community shipowners' means: - all cargo shipping companies established under the Treaty in a Member State of the Community; - nationals of Member States established outside the Community or cargo shipping companies  established outside the Community and controlled by nationals of Member States, if their ships are  registered in a Member State in accordance with its legislation. Article 4Examination of injury1.  Examination of injury shall cover the following factors: (a)  the freight rates offered by Community shipowners' competitors on the route in question, in  particular in order to determine whether they have been significantly lower than the normal freight  rate offered by Community shipowners, taking into account the level of service offered by all the  companies concerned; (b)  the effect of the above factor on Community shipowners as indicated by trends in a number of  economic indicators such as: - sailings, - utilization of capacity, - cargo bookings, - market share, - freight rates (that is depression of freight rates or prevention of freight rate increases which  would normally have occurred), - profits, - return of capital, - investment, - employment. 2.  Where a threat of injury is alleged, the Commission may also examine whether it is clearly  foreseeable that a particular situation is likely to develop into actual injury. In this regard,  account may also be taken of factors such as: (a)  the increase in tonnage deployed on the shipping route where the competition with Community  shipowners is taking place; (b)  the capacity which is already available or is to become available in the foreseeable future in  the country of theforeign shipowners and the extent to which the tonnage resulting from that  capacity is likely to be used on the shipping route referred to in (a). 3.  Injury caused by other factors which, either individually or in combination, are also adversely  affecting Community shipowners must not be attributed to the practices in question. Article 5Complaint1.  Any natural or legal person, or any association not having legal  personality, acting on behalf of the Community shipping industry who consider themselves injured or  threatened by unfair pricing practices may lodge a written complaint. 2.  The complaint shall contain sufficient evidence of the existence of the unfair pricing practice  and injury resulting therefrom. 3.  The complaint may be submitted to the Commission, or a Member State, which shall forward it to  the Commission. The Commission shall send Member States a copy of any complaint it receives. 4.  The complaint may be withdrawn, in which case proceedings may be terminated unless such  termination would not be in the interest of the Community. 5.  Where it becomes apparent after consultation that the complaint does not provide sufficient  evidence to justify initiating an investigation, then the complainant shall be so informed. 6.  Where, in the absence of any complaint, a Member State is in possession of sufficient evidence  both of unfair pricing practices and of injury resulting therefrom for Community shipowners, it  shall immediately communicate such evidence to the Commission. Article 6Consultations1.  Any consultations provided for in this Regulation shall take place  within an Advisory Committee, which shall consist of representatives of each Member State, with a  representative of the Commission as Chairman. Consultations shall be held immediately on request by  a Member State or on the initiative of the Commission. 2.  The Committee shall meet when convened by its Chairman. He shall provide the Member States, as  promptly as possible, with all relevant information. 3.  Where necessary, consultation may be in writing only; in such case the Commission shall notify  the Member Statesand shall specify a period within which they shall be entitled to express their  opinions or to request an oral consultation. 4.  Consultation shall in particular cover: (a)  the existence of unfair pricing practices and the amount thereof; (b)  the existence and extent of injury; (c)  the causal link between the unfair pricing practices and injury; (d)  the measures which, in the circumstances, are appropriate to prevent or remedy the injury  caused by unfair pricing practices and the ways and means for putting such measures into effect. Article 7Initiation and subsequent investigation1.  Where, after consultation, 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 foreign shipowner concerned and his country of origin, 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 make  known their views in writing and may apply to be heard orally by the Commission in accordance with  paragraph 5; (b)so advise the shipowners, shippers and freight forwarders known to the Commission to be  concerned and the complainants; (c)commence the investigation at Community level, acting in cooperation with the Member States;  such investigation shall cover both unfair pricing practices and injury resulting therefrom and  shall be carried out in accordance with paragraphs 2 to 8; the investigation of unfair pricing  practices shall normally cover a period of not less than six months immediately prior to the  initiation of the proceeding. 2. (a)Where appropriate the Commission shall seek all the information it deems necessary and attempt  to check this information with the shipowners, agents, shippers, freight forwarders, conferences,  associations and other organizations, provided that the undertakings or organizations concerned  give their consent. (b)Where necessary the Commission shall, after consultation, carry out investigations in third  countries, provided that the firms concerned give their consent and the government of the country  in questionhas been officially notified and raises no objection. The Commission shall be assisted  by officials of those Member States which so request. 3. (a)The Commission may request Member States: - to supply information, - to carry out all necessary checks and inspections, particularly amongst shippers, freight  forwarders, Community shipowners and their agents, - 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. (b)Member States shall take whatever steps are necessary in order to give effect to requests from  the Commission. They shall send to the Commission the information requested together with the  results of all inspections, checks or investigations carried out. (c)Where this information is of general interest or where its transmission has been requested by a  Member State, the Commission shall forward it to the Member States provided it is not confidential,  in which case a non-confidential summary shall be forwarded. (d)Officials of the Commission shall be authorized, if the Commission or a Member State so  requests, to assist the officials of Member States in carrying out their duties. 4. (a)The complainant and the shippers and shipowners known to be concerned may inspect all  information made available to the Commission by any party to an investigation as distinct from  internal documents prepared by the authorities of the Community or its Member States provided that  it is relevant to the defence of their interests and not confidential within the meaning of Article  8 and that it is used by the Commission in the investigation. To this end, they shall address a  written request to the Commission, indicating the information required. (b)Shipowners subject to investigation and the complainant may request to be informed of the  essential facts and considerations on the basis of which it is intended to recommend the imposition  of redressive duties. (c)ii(i)Requests for information pursuant to (b) shall: - be addressed to the Commission in writing, - specify the particular issues on which information is sought. i(ii)The information may be given either orally or in writing, as considered appropriate by  theCommission. It shall not prejudice any subsequent decision which may be taken by the Council.  Confidential information shall be treated in accordance with Article 8. (iii)Information shall normally be given no later than 15 days prior to the submission by the  Commission of any proposal for action pursuant to Article 11. Representations made after the  information is given may be taken into consideration only if received within a period to be set by  the Commission in each case, which shall be at least 10 days, due consideration being given to the  urgency of the matter. 5.  The Commission may hear the interested parties. It shall so hear them if they have, within the  periods prescribed in the notice published in the Official Journal of the European Communities,  made a written request for a hearing showing that they are an interested party likely to be  affected by the result of the proceeding and that there are particular reasons why they should be  given a hearing. 6.  Furthermore, the Commission shall, on request, give the parties directly concerned an  opportunity to meet, so that opposing views may be presented and any argument put forward by way of  rebuttal. In providing this opportunity the Commission shall take account of the need to preserve  confidentiality and of the convenience of the parties. There shall be no obligation on any party to  attend a meeting and failure to do so shall not be prejudicial to that party's case. 7.  (a)  This Article shall not preclude the Council from reaching preliminary determinations or  from applying measures expeditiously. (b)  In cases in which any interested party refuses access to, or otherwise does not provide,  necessary information within a reasonable period, or significantly impedes the investigation,  findings, affirmative or negative, may be made on the basis of the facts available. 8.  Proceedings on unfair pricing practices shall not constitute a bar to customs clearance of the  goods to which the freight rates concerned apply. 9.  (a)  An investigation shall be concluded either by its termination or by action pursuant to  Article 11. Conclusion should normally take place within one year of the initiation of the  proceeding. (b)  A proceeding shall be concluded either by the termination of the investigation without the  imposition of duties and without the acceptance of undertakings or by the expiry or repeal of such  duties or by the lapse of undertakings in accordance with Articles 14 or 15. Article 8Confidentiality1.  Information received in pursuance of this Regulation shall be used  only for the purpose for which it was requested. 2.  (a)  Neither the Council, nor the Commission, nor Member States, nor the officials of any of  these, shall reveal any information received in pursuance of this Regulation of which confidential  treatment has been requested by its supplier, without specific permission from the supplier. (b)  Each request for confidential treatment shall indicate why the information is confidential and  shall be accompanied by a non-confidential summary of the information, or a statement of the  reasons why the information is not susceptible of such summary. 3.  Information will ordinarily 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.  However, if it appears that a request for confidentiality is not warranted and if the supplier  is either unwilling to make the information public or to authorize its disclosure in generalized or  summary form, the information in question may be disregarded. The information may also be disregarded where such request is warranted and where the supplier is  unwilling to submit a non-confidential summary, provided that the information is susceptible of  such summary. 5.  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, or disclosure of the evidence relied on by the Community authorities insofar  as necessary to explain those reasons in court proceedings. Such disclosure must take into account  the legitimate interest of the parties concerned that their business secrets should not be  divulged. Article 9Termination of proceedings where protective measures are unnecessary1.  If it becomes  apparent after consultation that protective measures are unnecessary, then, where no objection is  raised within the Advisory Committee referred to in Article 6 (1), the proceeding shall be  terminated. In all other cases the Commission shall submit to the Councilforthwith a report on the  results of the consultation, together with a proposal that the proceeding be terminated. The  proceeding shall stand terminated if, within one month, the Council, acting by a qualified  majority, has not decided otherwise. 2.  The Commission shall inform the parties known to be concerned and shall announce the  termination in the Official Journal of the European Communities setting forth its basic conclusions  and a summary or the reasons therefor. Article 10Undertakings1.  Where, during the course of investigation, undertakings are offered  which the Commission, after consultation, considers acceptable, the investigation may be terminated  without the imposition of redressive duties. Save in exceptional circumstances, undertakings may not be offered later than the end of the period  during which representations may be made under Article 7 (4) (c) (iii). The termination shall be decided in conformity withthe procedure laid down in Article 9 (1) and  informationshall be given and notice published in accordance withArticle 9 (2). 2.  The undertakings referred to under paragraph 1 are those under which rates are revised to an  extent such that the Commission is satisfied that the unfair pricing practice, or the injurious  effects thereof, are eliminated. 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 consideration of the case.  However, the continuation of unfair pricing practices may be taken as evidence that a threat of  injury is more likely to be realized. 4.  If the undertakings are accepted, the investigation of injury shall nevertheless be completed  if the Commission, after consultation, so decides or if request is made by the Community shipowners  concerned. In such a case, if the Commission, after consultation, makes a determination of no  injury, the undertaking 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. 5.  The Commission may require any party from whom an undertaking has been accepted to provide  periodically information relevant to the fulfilment of such undertakings, and to permit  verification of pertinent data. Non-compliance with such requirements shall be construed as a  violation of the undertaking. Article 11Redressive dutiesWhere investigation shows that there is an unfair pricing practice,  that injury is caused by it and that the interests of the Community make Community intervention  necessary, the Commission shall propose to the Council, after the consultations provided for in  Article 6, that it introduce a redressive duty. The Council, acting by a qualified majority, shall  take a Decision within two months. Article 12In deciding on the redressive duties, the Council shall also take due account of the  external trade policy considerations as well as the port interests and the shipping policy  considerations of the Member States concerned. Article 13General provisions on duties1.  Redressive duties shall be imposed on the foreign  shipowners concerned by regulation. 2.  Such regulation shall indicate in particular the amount and type of duty imposed, the commodity  or commodities transported, the name and the country of origin of the foreign shipowner concerned  and the reasons on which the Regulation is based. 3.  The amount of the duties shall not exceed the difference between the freight rate charged and  the normal freight rate referred to in Article 3 (c). It shall be less if such lesser duty would be  adequate to remove the injury. 4.  (a)  Duties shall be neither imposed nor increased with retroactive effect and shall apply to  the transport of commodities which, after entry into force of such duties, are loaded or discharged  in a Community port. (b)  However, where the Council determines that an undertaking has been violated or withdrawn, the  redressive duties may be imposed, on a proposal from the Commission, on the transport of  commodities which were loaded or discharged in a Community port not more than 90 days prior to the  date of application of these duties, except that in the case of violation or withdrawal of an  undertaking such retroactive assessment shall not apply to the transport of commodities which were  loaded or discharged in a Community port before the violation or withdrawal. These duties may be  calculated on the basis of the facts established before the acceptance of the undertaking. 5.  Duties shall be collected by Member States in the form, at the rate and according to the other  criteria laid down when the duties were imposed, and independently of the customs duties, taxes and  other charges normally imposed on imports of goods transported. 6.  Permission to load or discharge cargo in a Community port may be made conditional upon the  provision of security for the amount of the duties. Article 14Review1.  Regulations imposing redressive duties and decisions to accept undertakings  shall be subject to review, in whole or in part, where warranted. Such review may be held either at  the request of a Member State or on the initiative of the Commission. A review shall also be held  where an interested party so requests and submits evidence of changed circumstances sufficient to  justify the need for such review, provided that at least one year has elapsed since the conclusion  of the investigation. Such requests shall be adressed to the Commission, which shall inform the  Member States. 2.  Where, after consultation, it becomes apparent that review is warranted, the investigation  shall be re-opened in accordance with Article 7, where the circumstances so require. Such reopening  shall not per se affect the measures in operation. 3.  Where warranted by the review, carried out either with or without reopening of the  investigation, the measures shall be amended, repealed or annulled by the Community institution  competent for their adoption. Article 151.  Subject to paragraph 2, redressive duties and undertakings shall lapse after five  years from the date on which they entered into force or were last amended or confirmed. 2.  The Commission shall normally, after consultation and within six months prior to the expiry of  the five year period, publish in the Official Journal of the European Communities a notice of the  impending expiry of the measure in question and inform Community shipowners known to be concerned.  This notice shall state the period within which interested parties may make known their views in  writing and may apply to be given a hearing by the Commission in accordance with Article 7 (5). Where an interested party shows that the expiry of the measure would again lead to injury or threat  of injury, the Commission shall carry out a review of the measure. The measure shall remain in  force pending the outcome of this review. Where redressive duties and undertakings lapse under this Article the Commission shall publish a  notice to that effect in the Official Journal of the European Communities. Article 16Refund1.  Where the shipowner concerned can show that the duty collected exceeds the  difference between the freight rate charged and the normal freight rate referred to in Article 3  (c) the excess amount shall be reimbursed. 2.  In order to request the reimbursement referred to in paragraph 1, the foreign shipowner may  submit an application to the Commission. The application shall be submitted via the Member State  within the territory of which the commodities transported were loaded or discharged and within  three months of the date on which the amount of the redressive duties to be levied was duly  determined by the competent authorities. The Member State shall forward the application to the Commission as soon as possible, either with  or without an opinion as to its merits. The Commission shall inform the other Member States forthwith and give its opinion on the matter.  If the Member States agree with the opinion given by the Commission or do not object to it within  one month of being informed, the Commission may decide in accordance with the said opinion. In all  other cases, the Commission shall, after consultation, decide whether and to what extent the  application should be granted. Article 17Final provisionsThis Regulation shall not preclude the application of any special rules  laid down in agreements concluded between the Community and third countries. Article 18Entry into forceThis Regulation shall enter into force on 1 July 1987. This Regulation shall be binding in its entirety and directly applicable in all  Member States. Done at Brussels, 22 December 1986. For the CouncilThe PresidentG. SHAW(1) OJ N° C 255, 15. 10. 1986, p. 169. (2) OJ N° C 344, 31. 12. 1985, p. 31. (3) OJ N° L 258, 21. 9. 1978, p. 35.